Petition of the day

Issues: (1) Whether the Supreme Court’s prior precedent applying the discretionary-function exception to the Federal Tort Claims Act to government employees acting on the operational level should be modified to accord with Justice Scalia’s concurring opinion in United States v. Gaubert; (2) whether the Supreme Court should resolve the circuit split regarding which party has the burden of proof under the discretionary-function exception to the Federal Tort Claims Act; and (3) whether Gaubert should be clarified to reaffirm that government policy, as applicable to the discretionary-function exception, may be established on a case-by-case basis and formed in partnership with a state government based on local conditions under that state’s statute, regulation or policy.