## Facts

- Frederic B. Gaubert was chairman and largest stockholder of Independent American Savings Association (IASA), a Texas savings and loan.
- Federal thrift regulators, acting under broad statutory authority to supervise savings and loan associations, began advising and overseeing aspects of IASA’s operations without initiating formal enforcement action.
- At regulators’ request, Gaubert removed himself from IASA’s management and posted security for a personal guarantee that IASA’s net worth would exceed regulatory minimums.
- Regulators increased their involvement, including threatening closure unless management and directors resigned, and recommending replacement management and directors.
- The Federal Home Loan Bank–Dallas became involved in IASA’s day-to-day affairs, including recommending a consultant, advising on subsidiary bankruptcy filings, mediating compensation disputes, reviewing draft litigation pleadings, urging charter conversion, and intervening with state regulators.
- IASA later announced a substantial negative net worth, and the Federal Savings and Loan Insurance Corporation placed the institution into receivership.
- After denial of his administrative tort claim, Gaubert sued the United States under the Federal Tort Claims Act (FTCA), seeking damages for lost share value and forfeited property tied to his guarantee, alleging negligent supervision by federal regulators.

## Issues

1. Whether federal thrift regulators’ supervisory actions, including intensive day-to-day involvement in a troubled institution, fall within the FTCA discretionary function exception, 28 U.S.C. § 2680(a).
2. Whether the discretionary function exception is limited to “planning” or “policy” decisions, or also covers “operational” acts involving judgment susceptible to policy analysis.
3. Whether any statute, regulation, or binding policy specifically required a particular course of action, eliminating discretion for the challenged conduct.

## Decision

- The Supreme Court reversed the Fifth Circuit and held Gaubert’s FTCA claims barred by the discretionary function exception.
- The exception is not confined to high-level planning decisions; it can cover day-to-day supervisory actions when they involve judgment of the type the exception protects.
- Courts must evaluate the nature of the challenged conduct, not the actor’s rank or whether the conduct is labeled “operational.”
- Because the regulatory scheme permitted supervisory judgment and no specific mandatory directive dictated the precise actions at issue, the regulators’ conduct was treated as discretionary and presumed policy-based, even if negligent.

## Legal Principles

- The FTCA discretionary function exception applies only when the challenged conduct involves an element of judgment or choice; it does not apply when a statute, regulation, or binding policy specifically prescribes a mandatory course of action.
- If judgment is permitted, the exception bars claims when the judgment is of the kind the exception was designed to shield, meaning conduct based on, or susceptible to, public policy considerations.
- There is no rigid “planning/operational” distinction; discretionary conduct may occur at operational levels where actions require choice among permissible alternatives.
- When a statute, regulation, or guideline allows discretion, courts presume the official’s discretionary acts are grounded in policy; liability is not available absent a violated mandatory directive.
- Section 2680(a) bars claims even if the discretion is abused; alleged negligence does not defeat the exception if the conduct qualifies as discretionary.

## Conclusion

The Court held that federal regulators’ day-to-day supervisory decisions regarding a failing savings and loan were protected by the FTCA discretionary function exception because the governing law granted discretion and the challenged actions were susceptible to policy analysis, thereby precluding tort liability against the United States.


United States v. Gaubert, 499 U.S. 315 (1991)