United States v. Gaubert/Opinion of the Court

When the events in this case occurred, the Home Owners' Loan Act of 1933, 12 U.S.C. §§ 1461-1468c, provided for the chartering and regulation of federal savings and loan associations (FSLA's). Section 1464(a) authorized the Federal Home Loan Bank Board (FHLBB) "under such rules and regulations as it may prescribe, to provide for the organization, incorporation, examination, operation, and regulation" of FSLA's, and to issue charters, "giving primary consideration to the best practices of thrift institutions in the United States." In this case the FHLBB and the Federal Home Loan Bank-Dallas (FHLB-D) undertook to advise about and oversee certain aspects of the operation of a thrift institution. Their conduct in this respect was challenged by a suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA), asserting that the FHLBB and FHLB-D had been negligent in carrying out their supervisory activities. The question before us is whether certain actions taken by the FHLBB and FHLB-D are within the "discretionary function" exception to the liability of the United States under the FTCA. The Court of Appeals for the Fifth Circuit answered this question in the negative. We have the contrary view and reverse.

* This FTCA suit arises from the supervision by federal regulators of the activities of Independent American Savings Association (IASA), a Texas-chartered and federally insured savings and loan. Respondent ThomasM. Gaubert was IASA's chairman of the board and largest shareholder. In 1984, officials at the FHLBB sought to have IASA merge with Investex Savings, a failing Texas thrift. Because the FHLBB and FHLB-D were concerned about Gaubert's other financial dealings, they requested that he sign a "neutralization agreement" which effectively removed him from IASA's management. They also asked him to post a $25 million interest in real property as security for his personal guarantee that IASA's net worth would exceed regulatory minimums. Gaubert agreed to both conditions. Federal officials then provided regulatory and financial advice to enable IASA to consummate the merger with Investex. Throughout this period, the regulators instituted no formal action against IASA. Instead, they relied on the likelihood that IASA and Gaubert would follow their suggestions and advice.

In the spring of 1986, the regulators threatened to close IASA unless its management and board of directors were replaced; all of the directors agreed to resign. The new officers and directors, including the chief executive officer who was a former FHLB-D employee, were recommended by FHLB-D. After the new management took over, FHLB-D officials became more involved in IASA's day-to-day business. They recommended the hiring of a certain consultant to advise IASA on operational and financialmat ters; they advised IASA concerning whether, when, and how its subsidiaries should be placed into bankruptcy;  they mediated salary disputes;  they reviewed the draft of a complaint to be used in litigation;  they urged IASA to convert from state to federal charter;  and they actively intervened when the Texas Savings and Loan Department attempted to install a supervisory agent at IASA. In each instance, FHLB-D's advice was followed.

Although IASA was thought to be financially sound while Gaubert managed the thrift, the new directors soon announced that IASA had a substantial negative net worth. On May 20, 1987, Gaubert filed an administrative tort claim with the FHLBB, FHLB-D, and FSLIC, seeking $75 million in damages for the lost value of his shares and $25 million for the property he had forfeited under his personal guarantee. That same day, the FSLIC assumed the receivership of IASA. After Gaubert's administrative claim was denied six months later, he filed the instant FTCA suit in the United States District Court for the Northern District of Texas. His amended complaint sought $100 million in damages for the alleged negligence of federal officials in selecting the new officers and directors and in participating in the day-to-day management of IASA. The District Court granted the motion to dismiss filed by the United States, finding that all of the challenged actions of the regulators fell within the discretionary function exception to the FTCA, found in 28 U.S.C. § 2680(a). No. CA 3-87-2989-T (Sept. 28, 1989), App. to Pet. for Cert. 21a.

The Court of Appeals for the Fifth Circuit affirmed in part and reversed in part. 885 F.2d 1284 (1989). Relying on this Court's decision in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the court distinguished between "policy decisions," which fall within the exception, and "operational actions," which do not. 885 F.2d, at 1287. After claiming further support for this distinction in this Court's decisions in United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), and Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the court explained:

"The authority of the FHLBB and FHLB-Dallas to take the     actions that were taken in this case, although not guided by      regulations, is unchallenged.  The FHLBB and FHLB-Dallas      officials did not have regulations telling them, at every      turn, how to accomplish their goals for IASA;  this fact,      however, does not automatically render their decisions      discretionary and immune from FTCA suits.  Only policy      oriented decisions enjoy such immunity.  Thus, the FHLBB and      FHLB-Dallas officials were only protected by the      discretionary function exception until their actions became      operational in nature and thus crossed the line established      in Indian Towing."  885 F.2d, at 1289 (citations and footnote      omitted).

In the court's view, that line was crossed when the regulators "began to advise IASA management and participate in management decisions." Id., at 1290. Consequently, the Court of Appeals affirmed the District Court's dismissal of the claims which concerned the merger, neutralization agreement, personal guarantee, and replacement of IASA management, but reversed the dismissal of the claims which concerned the regulators' activities after they assumed a supervisory role in IASA's day-to-day affairs. We granted certiorari, 496 U.S. 935, 110 S.Ct. 3211, 110 L.Ed.2d 659 (1990), and now reverse.

The liability of the United States under the FTCA is subject to the various exceptions contained in § 2680, including the "discretionary function" exception at issue here. That exception provides that the Government is not liable for

"[a]ny claim based upon an act or omission of an     employee of the Government, exercising due care, in the      execution of a statute or regulation, whether or not such      statute or regulation be valid, or based upon the exercise or      performance or the failure to exercise or perform a      discretionary function or duty on the part of a federal      agency or an employee of the Government, whether or not the      discretion involved be abused." 28 U.S.C. § 2680(a).

The exception covers only acts that are discretionary in nature, acts that "involv[e] an element of judgment or choice," Berkovitz, supra, at 536, 108 S.Ct., at 1958; see also Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953); and "it is the nature of the conduct, rather than the status of the actor" that governs whether the exception applies. Varig Airlines, supra, at 813, 104 S.Ct., at 2764. The requirement of judgment or choice is not satisfied if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," because "the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S., at 536, 108 S.Ct., at 1958.

Furthermore, even "assuming the challenged conduct involves an element of judgment," it remains to be decided "whether that judgment is of the kind that the discretionary function exception was designed to shield." Ibid. See Varig Airlines, 467 U.S., at 813, 104 S.Ct., at 2764. Because the purpose of the exception is to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort," id., at 814, 104 S.Ct., at 2765, when properly construed, theexception "protects only governmental actions and decisions based on considerations of public policy." Berkovitz, supra, at 537, 108 S.Ct., at 1959.

Where Congress has delegated the authority to an independent agency or to the Executive Branch to implement the general provisions of a regulatory statute and to issue regulations to that end, there is no doubt that planning-level decisions establishing programs are protected by the discretionary function exception, as is the promulgation of regulations by which the agencies are to carry out the programs. In addition, the actions of Government agents involving the necessary element of choice and grounded in the social, economic, or political goals of the statute and regulations are protected.

Thus, in Dalehite, the exception barred recovery for claims arising from a massive fertilizer explosion. The fertilizer had been manufactured, packaged, and prepared for export pursuant to detailed regulations as part of a comprehensive federal program aimed at increasing the food supply in occupied areas after World War II. 346 U.S., at 19-21, 73 S.Ct., at 959-961. Not only was the cabinet-level decision to institute the fertilizer program discretionary, but so were the decisions concerning the specific requirements for manufacturing the fertilizer. Id., at 37-38, 73 S.Ct., at 969. Nearly 30 years later, in Varig Airlines, the Federal Aviation Administration's actions in formulating and implementing a "spot-check" plan for airplane inspection were protected by the discretionary function exception because of the agency's authority to establish safety standards for airplanes. 467 U.S., at 815, 104 S.Ct., at 2765. Actions taken in furtherance of the program were likewise protected, even if those particular actions were negligent. Id., at 820, 104 S.Ct., at 2767-2768. Most recently, in Berkovitz, we examined a comprehensive regulatory scheme governing the licensing of laboratories to produce polio vaccine and the release to the public of particular drugs. 486 U.S., at 533, 108 S.Ct., at 1957. We found that some of the claims fell outside the exception, because the agency employees had failed to follow the specific directions contained in the applicable regulations, i.e., in those instances, there was no room for choice or judgment. Id., at 542-543, 108 S.Ct., at 1961-1962. We then remanded the case for an analysis of the remaining claims in light of the applicable regulations. Id., at 544, 108 S.Ct., at 1962-1963.

Under the applicable precedents, therefore, if a regulation mandates particular conduct, and the employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regulation. See Dalehite, supra, at 36, 73 S.Ct., at 968. If the employee violates the mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy. On the other hand, if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.

Not all agencies issue comprehensive regulations, however. Some establish policy on a case-by-case basis, whether through adjudicatory proceedings or through administration of agency programs. Others promulgate regulations on some topics, but not on others. In addition, an agency may rely on internal guidelines rather than on published regulations. In any event, it will most often be true that the general aims and policies of the controlling statute will be evident from its text.

When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.

In light of our cases and their interpretation of § 2680(a), it is clear that the Court of Appeals erred in holding that the exception does not reach decisions made at the operational or management level of the bank involved in this case. A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policymaking or planning functions. Day-to-day management of banking affairs, like the management of other businesses, regularly requires judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level. "[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Varig Airlines, supra, at 813, 104 S.Ct., at 2764.

In Varig Airlines, the Federal Aviation Administration had devised a system of "spot-checking" airplanes. We held that not only was this act discretionary but so too were the acts of agency employees in executing the program since they had a range of discretion to exercise in deciding how to carry out the spot-check activity. 467 U.S., at 820, 104 S.Ct., at 2767-2768. Likewise in Berkovitz, although holding that some acts on the operational level were not discretionary and therefore were without the exception, we recognized that other acts, if held to be discretionary on remand, would be protected. 486 U.S., at 545, 108 S.Ct., at 1963.

The Court's first use of the term "operational" in connection with the discretionary function exception occurred in Dalehite, where the Court noted that "[t]he decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government's fertilizer program." 346 U.S., at 42, 73 S.Ct., at 971. Gaubert relies upon this statement as support for his argument that the Court of Appeals applied the appropriate analysis to the allegations of the amended complaint, but the distinction in Dalehite was merely description of the level at which the challenged conduct occurred. There was no suggestion that decisions made at an operational level could not also be based on policy.

Neither is the decision below supported by Indian Towing. There the Coast Guard had negligently failed to maintain a lighthouse by allowing the light to go out. The United States was held liable, not because the negligence occurred at the operational level but because making sure the light was operational "did not involve any permissible exercise of policy judgment." Berkovitz, 486 U.S., at 538, n. 3, 108 S.Ct., at 1959, n. 3. Indeed, the Government did not even claim the benefit of the exception but unsuccessfully urged that maintaining the light was a governmental function for which it could not be liable. The Court of Appeals misinterpreted Berkovitz § reference to Indian Towing as perpetuating a nonexistent dichotomy between discretionary functions and operational activities. 885 F.2d, at 1289. Consequently, once the court determined that some of the actions challenged by Gaubert occurred at an operational level, it concluded, incorrectly, that those actions must necessarily have been outside the scope of the discretionary function exception. IV

We now inquire whether the Court of Appeals was correct in holding that some of the acts alleged in Gaubert's amended complaint were not discretionary acts within the meaning of § 2680(a). The decision we review was entered on a motion to dismiss. We therefore "accept all of the factual allegations in [Gaubert's] complaint as true" and ask whether the allegations state a claim sufficient to survive a motion to dismiss. Berkovitz, supra, at 540, 108 S.Ct., at 1961.

The Court of Appeals dismissed several of the allegations in the amended complaint on the ground that the challenged activities fell within the discretionary function exception. These allegations concerned "the decision to merge IASA with Investex and seek a neutralization agreement from Gaubert," as well as "the decision to replace the IASA Board of Directors with FHLBB approved persons, and the actions taken to effectuate that decision." 885 F.2d, at 1290. Gaubert has not challenged this aspect of the court's ruling. Consequently, we review only those allegations in the amended complaint which the Court of Appeals viewed as surviving the Government's motion to dismiss.

These claims asserted that the regulators had achieved "a constant federal presence" at IASA. App. 14, ¶ 33. In describing this presence, the amended complaint alleged that the regulators "consult[ed] as to day-to-day affairs and operations of IASA," id., at 14, ¶ 33a;  "participated in management decisions" at IASA board meetings, id., at 14, ¶ 33b;  "became involved in giving advice, making recommendations, urging, or directing action or procedures at IASA," id., at 14, ¶ 33c;  and "advised their hand-picked directors and officers on a variety of subjects," id., at 14, ¶ 34. Specifically, the complaint enumerated seven instances or kinds of objectionable official involvement. First, the regulators "arranged for the hiring for IASA of . . . consultants on operational and financial matters and asset management." Id., at 14, ¶ 34a. Second, the officials "urged or directed that IASA convert from a state-chartered savings and loan to a federally-chartered savings and loan in part so that it could become the exclusive government entity with power to control IASA." Id., at 14, ¶ 34b. Third, the regulators "gave advice and made recommendations concerning whether, when, and how to place IASA subsidiaries into bankruptcy." Id., at 15, ¶ 34c. Fourth, the officials "mediated salary disputes between IASA and its senior officers." Id., at 15, ¶ 34d. Fifth, the regulators "reviewed a draft complaint in litigation" that IASA's board contemplated filing and were "so actively involved in giving advice, making recommendations, and directing matters related to IASA's litigation policy that they were able successfully to stall the Board of Directors' ultimate decision to file the complaint until the Bank Board in Washington had reviewed, advised on, and commented on the draft." Id., at 15, ¶ 34e (emphasis in original). Sixth, the regulators "actively intervened with the Texas Savings and Loan Department (IASA's principal regulator) when the State attempted to install a supervisory agent at IASA." Id., at 15, ¶ 34f. Finally, the FHLB-D president wrote the IASA board of directors "affirming that his agency had placed that Board of Directors into office, and describing their mutual goal to protect the FSLIC insurance fund." Id., at 15-16, ¶ 34g. According to Gaubert, the losses he suffered were caused by the regulators' "assumption of the duty to participate in, and to make, the day-to-day decisions at IASA and [the] negligent discharge of that assumed duty." Id., at 17, ¶ 39. Moreover, he alleged that "[t]he involvement of the FHLB-Dallas in the affairs of IASA went beyond its normal regulatory activity, and the agency actually substituted its decisions for those of the directors and officers of the association." Id., at 19, ¶ 55.

We first inquire whether the challenged actions were discretionary, or whether they were instead controlled by mandatory statutes or regulations. Berkovitz, supra, at 536, 108 S.Ct., at 1958-1959. Although the FHLBB, which oversaw the other agencies at issue, had promulgated extensive regulations which were then in effect, see 12 CFR §§ 500-591 (1986), neither party has identified formal regulations governing the conduct in question. As already noted, 12 U.S.C. § 1464(a) authorizes the FHLBB to examine and regulate FSLA's, "giving primary consideration to the best practices of thrift institutions in the United States." Both the District Court and the Court of Appeals recognized that the agencies possessed broad statutory authority to supervise financial institutions. The relevant statutory provisions were not mandatory, but left to the judgment of the agency the decision of when to institute proceedings against a financial institution and which mechanism to use. For example, the FSLIC had authority to terminate an institution's insured status, issue cease-and-desist orders, and suspend or remove an institution's officers, if "in the opinion of the Corporation" such action was warranted because the institution or its officers were engaging in an "unsafe or unsound practice" in connection with the business of the institution. 12 U.S.C. §§ 1730(b)(1), (e)(1), (g)(1). The FHLBB had parallel authority to issue cease-and-desist orders and suspend or remove an institution's officers. §§ 1464(d)(2)(A), (d)(4)(A). Although the statute enumerated specific grounds warranting an appointment by the FHLBB of a conservator or receiver, the determination of whether any of these grounds existed depended upon "the opinion of the Board." § 1464(d)(6)(A). The agencies here were not bound to act in a particular way; the exercise of their authority involved a great "element of judgment or choice." Berkovitz, supra, at 536, 108 S.Ct., at 1958-1959.

We are unconvinced by Gaubert's assertion that because the agencies did not institute formal proceedings against IASA, they had no discretion to take informal actions as they did. Although the statutes provided only for formal proceedings, there is nothing in the language or structure of the statutes that prevented the regulators from invoking less formal means of supervision of financial institutions. Not only was there no statutory or regulatory mandate which compelled the regulators to act in a particular way, but there was no prohibition against the use of supervisory mechanisms not specifically set forth in statute or regulation.

This is the view of the FHLBB; for in a resolution passed in 1982, the FHLBB adopted "a formal statement of policy regarding the Bank Board's use of supervisory actions," which provided in part:

"In carrying out its supervisory responsibilities with     respect to thrift institutions insured by the Federal Savings      and Loan Insurance Corporation ('FSLIC'), . . . it is the      policy of the Federal Home Loan Bank Board that violations of      law or regulation, and unsafe or unsound practices will not      be tolerated and will result in the initiation of strong      supervisory and/or enforcement action by the Board.  It is      the Bank Board's goal to minimize, and where possible, to      prevent losses occasioned by violations or unsafe and unsound      practices by taking prompt and effective supervisory action.      . ..

"The Board recognizes that supervisory actions must be     tailored to each case, and that such actions will vary      according to the severity of the violation of law or      regulation or the unsafe or unsound practice, as well as to      the responsiveness and willingness of the association to take      corrective action.  The following guidance should be      considered for all supervisory actions.

"In each case, based upon an assessment of management's     willingness to take appropriate corrective action and the      potential harm to the institution if corrective action is not      effected, the staff must weigh the appropriateness of      available supervisory actions.  If the potential harm is      slight and there is a substantial probability that management will correct the situation, informal      supervisory guidance and oversight is appropriate.  If some      potential harm to the institution or its customers is likely,      a supervisory agreement should be promptly negotiated and      implemented.  If substantial financial harm may occur to the      institution, its customers, or the FSLIC and there is      substantial doubt that corrections will be made promptly, a      cease-and-desist order should be sought immediately through      the Office of General Counsel." FHLBB Resolution No. 82-381     (May 26, 1982), reprinted in Brief for Respondent 4a-6a.

From this statement it is clear that the regulators had the discretion to supervise IASA through informal means, rather than invoke statutory sanctions.

Gaubert also argues that the challenged actions fall outside the discretionary function exception because they involved the mere application of technical skills and business expertise. Brief for Respondent 33. But this is just another way of saying that the considerations involving the day-to-day management of a business concern such as IASA are so precisely formulated that decisions at the operational level never involve the exercise of discretion within the meaning of § 2680(a), a notion that we have already rejected in disapproving the rationale of the Court of Appeals' decision. It may be that certain decisions resting on mathematical calculations, for example, involve no choice or judgment in carrying out the calculations, but the regulatory acts alleged here are not of that genre. Rather, it is plain to us that each of the challenged actions involved the exercise of choice and judgment.

We are also convinced that each of the regulatory actions in question involved the kind of policy judgment that the discretionary function exception was designed to shield. The FHLBB Resolution quoted above, coupled with the relevant statutory provisions, established governmental policy which is presumed to have been furthered when the regulators exercised their discretion to choose from various courses of action in supervising IASA. Although Gaubert contends that day-to-day decisions concerning IASA's affairs did not implicate social, economic, or political policies, even the Court of Appeals recognized that these day-to-day "operational" decisions were undertaken for policy reasons of primary concern to the regulatory agencies:

"[T]he federal regulators here had two discrete purposes in     mind as they commenced day-to-day operations at IASA.  First,      they sought to protect the solvency of the savings and loan      industry at large, and maintain the public's confidence in      that industry.  Second, they sought to preserve the assets of      IASA for the benefit of depositors and shareholders, of which      Gaubert was one." 885 F.2d, at 1290.

Consequently, Gaubert's assertion that the day-to-day involvement of the regulators with IASA is actionable because it went beyond "normal regulatory activity" is insupportable.

We find nothing in Gaubert's amended complaint effectively alleging that the discretionary acts performed by the regulators were not entitled to the exemption. By Gaubert's own admission, the regulators replaced IASA's management in order to protect the FSLIC's insurance fund; thus it cannot be disputed that this action was based on public policy considerations. The regulators' actions in urging IASA to convert to federal charter and in intervening with the state agency were directly related to public policy considerations regarding federal oversight of the thrift industry. So were advising the hiring of a financial consultant, advising when to place IASA subsidiaries into bankruptcy, intervening on IASA's behalf with Texas officials, advising on litigation policy, and mediating salary disputes. There are no allegations that the regulators gave anything other than the kind of advice that was within the purview of the policies behind the statutes.

There is no doubt that in advising IASA the regulators used the power of persuasion to accomplish their goals. Nevertheless, we long ago recognized that regulators have the authority to use such tactics in supervising financial institutions. In ''United States v. Philadelphia Nat. Bank,'' 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), the Court considered the wide array of supervisory tools available to the Federal Deposit Insurance Corporation and the Federal Reserve System in overseeing banks. Noting the "frequent and intensive" nature of bank examinations and the "detailed periodic reports" banks were required to submit, the Court found that "the agencies maintain virtually a day-to-day surveillance of the American banking system." Id., at 329, 83 S.Ct., at 1723. Moreover, the agencies' ability to terminate a bank's insured status and invoke other less drastic sanctions meant that "recommendations by the agencies concerning banking practices tend to be followed by bankers without the necessity of formal compliance proceedings." Id., at 330, 83 S.Ct., at 1723. These statements apply with equal force to supervision by federal agencies of the savings and loan industry. More than 30 years ago, the Court of Appeals for the Fifth Circuit made similar observations in a case involving allegations that the FHLBB had improperly pressured a savings and loan's directors to resign. See Miami Beach Federal Savings & Loan Association v. Callander, 256 F.2d 410 (CA5 1958). The court noted that "[w]hen a governmental agency holds such great powers over its offspring, even to the point of appointing a conservator or receiver to replace the management . . ., it is difficult to hold that an informal request, even demand, to clean house would amount to an abuse of the statutory powers and discretion of the agency." Id., at 414-415. Consequently, neither the pervasiveness of the regulators' presence at IASA nor the forcefulness of their recommendations is sufficient to alter the supervisory nature of the regulators' actions.

In the end, Gaubert's Amended Complaint alleges nothing more than negligence on the part of the regulators. Indeed, the two substantive counts seek relief for "negligent selection of directors and officers" and "negligent involvement in day-to-day operations." App. 17, 18. Gaubert asserts that the discretionary function exception protects only those acts of negligence which occur in the course of establishing broad policies, rather than individual acts of negligence which occur in the course of day-to-day activities. Brief for Respondent 39. But we have already disposed of that submission. See supra, at 9. If the routine or frequent nature of a decision were sufficient to remove an otherwise discretionary act from the scope of the exception, then countless policy-based decisions by regulators exercising day-to-day supervisory authority would be actionable. This is not the rule of our cases.

Because from the face of the amended complaint, it is apparent that all of the challenged actions of the federal regulators involved the exercise of discretion in furtherance of public policy goals, the Court of Appeals erred in failing to find the claims barred by the discretionary function exception of the FTCA. We therefore reverse the decision of the Court of Appeals for the Fifth Circuit and remand for proceedings consistent with this opinion.

It is so ordered.