Only a handful of other Federal district courts across the country have such discretionary rules.

It is engaging in discretionary rule.

In an argument that essentially nullified the FTCA, Gill and the DOE attorneys glossed over the distinction between operational judgments and policy decisions, arguing that the discretionary rule exempted all actions from tort claims.

Overturning Judge Jenkins' opinion, the circuit court judges ruled that his methods of conducting the tests and the decision not to inform the maimed and dying Downwinders were policy judgments protected by the discretionary rule of the FTCA.