An appellate judge has called for the U.S. Supreme Court to revisit its test for when the government is shielded from Federal Tort Claims Act claims, though legal experts have different predictions on how that would play out if the justices were to do so.

In a concurrence last week, Judge Stephanos Bibas of the U.S. Court of Appeals for the Third Circuit said judges are struggling to apply the test for determining the “discretionary function exception,” which protects the government from certain claims under the FTCA. Several circuits are split as a result, he added.