The FTCA is an exception to the rule that the United States is typically immune from suit. The district court determined that the Discretionary Function Exception (“DFE”), an exception to the exception to the rule of United States immunity, barred Plaintiffs’ claims. The DFE suspends the FTCA from applying to:
[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 Second Circuit Court of Appeals agreed with the district court. The court of appeals stated that the DFE is not about fairness, it “is about power,” National Union Fire Insurance v. United States, 115 F.3d 20 1415, 1422 (9th Cir. 1997); the sovereign “reserve[s] to itself the right to act without liability for misjudgment and carelessness in the formulation of policy,” id. “[T]he DFE bars suit only if two conditions are met: (1) the acts alleged to be negligent must be discretionary, in that they involve an ‘element of judgment or choice’ and are not compelled by statute or regulation and (2) the judgment or choice in question must be grounded in ‘considerations of public policy’ or susceptible to policy analysis.” Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000) (quoting United States v. Gaubert, 499 U.S. 315, 322-23 (1991)) The court of appeals noted that Plaintiffs bear the initial burden to state a claim that is not barred by the DFE. See Gaubert, 499 U.S. at 324-25.
The court of appeals concluded that in the case before it, the Plaintiffs failed to make the necessary showing. The conduct Plaintiffs sought to challenge was “too intertwined with purely discretionary decisions” made by SEC personnel. Gray v. Bell, 712 F.2d 490, 515 (D.C. Cir. 1983); see generally id. at 515-16.
While the court expressed sympathy for Plaintiffs’ predicament (and at the same time expressing antipathy for the SEC’s conduct), it found that Congress’s intent to shield regulatory agencies’ discretionary use of specific investigative powers via the DFE was fatal to Plaintiffs’ claims. See Berkovitz by Berkovitz v. United States, 486 U.S. 531, 538 & 538 n.4 (1988) (quoting H.R.Rep. No. 1287, 79th Cong., 1st Sess., 616 (1945)). The court found that the first prong of the DFE was satisfied because the SEC retains complete discretion over when, whether and to what extent to investigate and bring an action against an individual or entity. See 15 U.S.C. § 78u(a)(1); 17 C.F.R. § 202.5(a)-(b). It also found that the second prong of the DFE was satisfied by virtue of the SEC’s choices regarding allocation of agency time and resources being sufficiently grounded in economic, social and policy considerations. See Bd. of Trade of City of Chicago v. SEC, 2 883 F.2d 525, 531 (7th Cir. 1989); cf. Coulthurst, 214 F.3d at 108-11.
The court concluded that the SEC’s actions, along with its “regrettable inaction,” were shielded by the Discretionary Function Exception, and affirmed the district court’s dismissal of Plaintiffs’ claims for lack of subject matter jurisdiction.