## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 4 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANKLIN SAVINGS CORPORATION; FRANKLIN SAVINGS ASSOCIATION,

Plaintiffs-Appellants,

v. UNITED STATES OF AMERICA; FEDERAL DEPOSIT INSURANCECORPORATION, as successor-ininterest to the Resolution Trust Corporation, Defendants-Appellees. No. 97-3220

Appeal from the United States District Court

for the District of Kansas (D.C. No. 95-CV-2100-GTV)
R. Pete Smith, (Jonathan A. Margolies with him on the brief), of McDowell, Rice, Smith & Gaar, Kansas City, Missouri for Appellants. Michael S. Raab, Attorney, Appellate Staff, Civil D ivision, U. S. Department of Justice, Washington, D.C. (Mark B. Stern, Attorney, Appellate Staff, Civil Division, U. S. Department of Justice, with him on the brief) for Appellees.

Before BALDOCK, KELLY, and MURPHY, Circuit Judges.1 The Federal Deposit Insurance Corporation (FDIC) is now a defendant as the

RTC’s successor-in-interest. See 12 U.S.C. § 1441a(m)(1). -2- MURPHY , Circuit Judge.

This appeal concerns the breadth of the discretionary-function exception to the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA). Plaintiffs, who owned most of the stock of the Fran klin Savings Association (FSA or the Association), sued the United States and the Resolution Trust Corporation 1 (RTC), seeking damages allegedly caused by the RTC’ s conduct as FSA’s conservator. Before any discovery, the district co urt dismissed the suit under Federal Rule of Civil Procedure 12(b)(6) on the bas is that plaintiffs’ claims fell within the FTCA’s discretionary-function exception. This court has jurisdiction of plaintiffs’ appeal under 28 U.S.C. § 1291. Plaintiffs primarily argue that their claims arise not from the RTC’s performance of a discretionary function, but from i ts violation of specific, mandatory duties while managing FSA. Those duties include a specific dictate in the order creating the conservatorship that the RTC conserve and not liquidate the Association. Plaintiffs argue that the RTC nonethe less intentionally effected a de facto liquidation of FSA under the guise of conserving i t. They thus allege that the RTC acted in subjective bad faith while perform ing acts which, viewed2 For a “generalized and simplified overview of the f acts” leading to the conservatorship, see Franklin I, 934 F.2d at 1133–35. For a more detailed (continued...) -3- objectively, fall within the scope of a discretiona ry function. This poses the question whether such allegations should bar dismis sal under the discretionaryfunction exception. Because this court concludes that the exception’s purpose compels dismissal of any claim whose ultimate resol ution would require judicial scrutiny of an official’s good faith or subjective decisionmaking, we AFFIRM

. II. PROCEDURAL AND FACTUAL BACKGROUND This is the third appeal to this court and the seve nth published opinion involving disputes over the conservation and liquid ation of the long-gone but not forgotten Franklin Savings Association. See Franklin Sav. Ass’n v. Office of Thrift Supervision , 740 F. Supp. 1535 (denying summary judgment), 742 F. Supp. 1089 (D. Kan.1990) (granting judgment after trial), rev'd , 934 F.2d 1127 (10th Cir. 1991) [ Franklin I ]; Franklin Sav. Ass’n v. Office of Thrift Supervision , 821 F. Supp. 1414 (D. Kan.1993), aff’d , 35 F.3d 1466 (10th Cir. 1994) [ Franklin II ]; Franklin Savings Corp. v. United States , 970 F. Supp. 855 (D. Kan. 1997) (decision now on appeal) [ Franklin III ]. This court has distilled the following summary of the litigation from Franklin II

. See 35 F.3d at 1468. In 1990 the Director of the Office of Thrift Superv ision (OTS ) determined that FSA was “in an unsafe and unsound condition to transact business” and appointed the RTC as its conservator. 2FSA and its parent, Franklin Savings2 (...continued)

account, see Franklin I, 742 F. Supp. at 1099–1124. -4- Corporation (FSC), filed suit under the Financial I nstitutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) to remove the conservator. See 12 U.S.C. § 1464(d)(2)(E) (1989) (authorizing appointment and judicial review); see generally 12 U.S.C. §§ 1461–1470 (1989). While the districtcourt held the appointment arbitrary and capricious, this court re versed, holding that review of the decision to appoint a conservator is limited to the administrative record and that said record supported the decision. See Franklin I , 742 F. Supp. at 1126, rev’d , 934 F.2d at 1149. In 1992, after the first suit had been dismissed, the OTS changed the RTC’s role from conservator to receiver. See 57 Fed. Reg. 41,969 (1992). FSA and FSC again sued. In 1994 this court affirmed the dismissal of that suit on the ground the decision to appoint a r eceiver is not subject to judicial review. See Franklin II , 821 F. Supp. at 1418–24, aff’d , 35 F.3d at 1469–71. The present action, meanwhile, arose from plaintiff s’ 1993 filing of an adversary complaint against the RTC in bankruptcy c ourt, in a proceeding concerning the estate of FSC. See Franklin III , 970 F. Supp. at 860. The complaint sought damages under the FTCA based on th e RTC’s acts as
conservator. See id. The district court withdrew the reference from th e bankruptcy court, and plaintiffs amended their comp laint to name the FDIC, the3 Plaintiffs also added a claim under the Administrat ive Procedure Act (APA),

which the court also dismissed. See Franklin III, 970 F. Supp. at 860, 863–64. On appeal, plaintiffs advance no reason to reinstat e that claim other than the bankruptcy-code argument discussed infraat 7–9.

4 Plaintiffs’ motion to supplement the record on appe al is granted. -5- RTC’s successor-in-interest. 3 See id. The government moved to dismiss all claims for lack of subject-matter jurisdiction. Th e court granted the motion, and this appeal followed. 4 On appeal, plaintiffs primarily challenge the dismi ssal of their FTCA claim. They premise that claim on the RTC’s conduct in 199 0–92, while it was acting under an order appointing it “as conservator . . . not for the purpose of liquidation.” Plaintiffs argue that the RTC disreg arded that specific mandate, ignored various narrower mandates in its own manual s governing conservatorships, and breached its fiduciary duties as a conservator by intentionally effecting a de facto liquidation of the Association. Plaintiffs specifically decry four sets of transact ions from which they infer the RTC’s sub rosa intent to liquidate the Association. Three of the se involve allegedly precipitate, all-or-nothing sales of asse t portfolios in saturated markets. The fourth involves an omission: before issuing rep orts on FSA’s capital, the RTC did not exercise its statutory power to repudiate burdensome, high-interest bonds issued by FSA. The capital reports, which re flected asset write-downs that had decreased FSA’s equity, caused the bond trustee to defease the bonds,5 Plaintiffs sued in the names of both FSC and FSA. The Government disputed

their right to sue in either capacity. It argued t hat FSA had not filed an administrative claim, as the FTCA requires. See Franklin III, 970 F. Supp. at 861 (citing 28 U.S.C. § 2675(a)). FSC had filed a claim, but the Government argued that it could not bring either a shareholder -derivative suit, as it had not first demanded that FSA’s directors file suit, or adirect claim, as its injuries were derivative. See id. The district court agreed that FSA could not sue, and that FSC could not sue directly. It held, however, thatFSC could bring a derivative claim, because it would have been futile to demand of the FDIC, which now directs the Association, that it essentially sue it self. See id. at 861–63. Both parties appeal those rulings, but this court n eed not resolve those issues. Our affirmance on the discretionary-functi on exception disposes of all of plaintiffs’ claims, direct or derivative. Whether a suit falls within the exception is a threshold question of subject-matter jurisdict ion. See, e.g., Tippett v. United States , 108 F.3d 1194, 1196-97 (10th Cir. 1997); Daigle v. Shell Oil Co. , 972 F.2d 1527, 1537 (10th Cir. 1992). Neither party suggest s that the inquiry differs if the suit is direct or derivative. Only if this court w ere to hold that there is subjectmatter jurisdiction under the FTCA, or under anothe r waiver of immunity, would we have to decide whether Kansas law entitles plaintiffs to sue directly, derivatively, or neither. This is true even if we also deem the latter questions “jurisdictional.” See Arizonans for Official English v. Arizona , 520 U.S. 43, 66–67 (1997) (holding that court may assume standin g, despite grave doubts, in (continued...) -6- triggering large losses for FSA. Plaintiffs argue that the RTC engaged in such conduct in order to deplete FSA’s capital and there by retrospectively justify the OTS’s appointment of a conservator. They allege th at the RTC caused FSA to lose some $500 million in potential profits, thus e nsuring the Association’s future liquidation rather than its conservation and eventu al return to plaintiffs’ control.
III. DISCUSSION Plaintiffs’ complaint included two damage claims pe rtinent to this appeal: one against the United States under the FTCA, and o ne against the FDIC at common law. 5 On appeal, the plaintiffs assert three ways the g overnment has5 (...continued)

order to decide mootness, as both questions concernArticle III jurisdiction, not the merits); Cross-Sound Ferry Servs., Inc., v. ICC, 934 F.2d 327, 341 (D.C. Cir. 1991) (“[C]ourts properly rest on one jurisdictiona l ground instead of another.”), overruled in other part by Steel Co. v. Citizens for a Better Envir. , 523 U.S. 83, __, 118 S.Ct. 1003, 1012 (1998).

6 Plaintiffs also briefly argue that dismissal before discovery was premature. They develop this argument so superficially, however, as to waive it. See, e.g., Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc. , 131 F.3d 874, 880 & n.9 (10th Cir. 1997) (holding that party who noted issue and made “several broad, conclusory statements” on appeal waived argument fo r failure to develop). -7- waived sovereign immunity: (1) under the BankruptcyCode, 11 U.S.C. § 106; (2) under the FTCA, because the discretionary-funct ion exception does not apply; and (3) under the RTC’s and FDIC’s sue-and-be-sued clauses. 6 A. Plaintiffs Have Waived Reliance on Bankruptcy Code § 106 Plaintiffs’ first argument is easily dispatched, fo r their complaint did not allege Bankruptcy Code § 106 as a basis for subject -matter jurisdiction, and they never sought leave to amend their complaint to do s o, or in any way asked the district court to assume jurisdiction under that pr ovision. Plaintiffs address this problem by invoking the long-established rule that defects in subject-matter jurisdiction can never be waived and may be raised at any time on appeal. See Mansfield, Coldwater & Lake Mich. Ry. v. Swan , 111 U. S. 379, 382 (1884); Fed. R. Civ. P. 12(h)(3); and, e.g., Laughlin v. K Mart Corp. , 50 F.3d 871, 873 (10th Cir. 1995). This court, however, has held that “ou r responsibility to ensure even sua sponte that we have subject matter jurisdiction before co nsidering a case7 Courts may also ignore a waiver “when manifest inju stice would otherwise

result.” Daigle , 972 F.2d at 1539. Plaintiffs do not suggest thatwe must overlook their waiver of the § 106 argument in order to avoid “manifest injustice.”

8 This court did note the lack of a fully developed r ecord, but we relied equally on Daigle’s failure to “undoubtedly demonstrate[] an u nequivocal waiver of (continued...) -8- differs from our discretion to eschew untimely rais ed legal theories which may support that jurisdiction.” Daigle v. Shell Oil Co. , 972 F.2d 1527, 1539 (10th Cir. 1992); see also United States ex rel. Ramseyer v. Century Healthcare Corp. , 90 F.3d 1514, 1518 n.2 (10th Cir. 1996) (declining to consider sua sponte a basis for jurisdiction not argued below or on appeal). Plaintiffs attempt to distinguish Daigle . They acknowledge that this court refused to consider a waived argument supporting ju risdiction of Daigle’s suit. They argue, however, that we did so because the arg ument involved disputed factual issues on which the district court had made no findings. Plaintiffs assert that their bankruptcy argument, by contrast, presents “a pristine legal question.” Plaintiffs misread Daigle . This court held that we have no duty to consider waived arguments supporting subject-matter jurisdiction. See 972 F.2d at 1539. We then noted our discretion to ignore a waiver, inany case, if “presented with a strictly legal question the proper resolution of which is beyond doubt.” Id. 7In declining to apply that exception, this court saw n o need to “delve into an in depth analysis” of the jurisdictional issue, instead simp ly noting that Daigle’s new arguments “[did] not go unchallenged.” Id. at 1540. 8 The same is true here:8 (...continued)

sovereign immunity.” Id. at 1540.

9 The district court thus did not consider two affidavits which the government filed. See Franklin III, 970 F. Supp. at 861 n.4. It did, however, consid er the RTC manuals and directives which plaintiffs appende d to and incorporated by reference in their complaint. See id. at 865–66. -9- plaintiffs argue plausibly that the government waiv es its discretionary-function immunity by filing a claim in bankruptcy against th e victim’s estate. The government argues plausibly to the contrary. Plaintiffs may have shown that the legal question they raise is “pristine,” but they h ave not shown, as they must, that its “proper resolution . . . is beyond doubt.” Id. at 1539. This court thus declines to overlook their waiver. B. The Discretionary-Function Exception to the FTCA’s Waiver of Sovereign Immunity
1. Standard of Review The government moved to dismiss the FTCA claims und er Rules 12(b)(1) and (6), and the court treated the motion as one to dismiss for failure to state a claim under Rule 12(b)(6). See Franklin III , 970 F. Supp. at 860–61. 9As the court recognized, it must convert a Rule 12(b)(1) m otion to one under Rule 12(b)(6), or for summary judgment, “‘[i]f the juris dictional question is intertwined with the merits of the case.’” Bell v. United States , 127 F.3d 1226, 1228 (10th Cir. 1997) (quoting Wheeler v. Hurdman , 825 F.2d 257, 259 (10th Cir. 1987)). Whether the discretionary-function exception applies is such a question. See id. ;-10-

Tippett v. United States , 108 F.3d 1194, 1196 (10th Cir. 1997). This courtreviews de novo a Rule 12(b)(6) dismissal. See Tippett , 108 F.3d at 1196–97.
2. Summary of Applicable Law To avoid dismissal of an FTCA claim under the discr etionary-function exception, a plaintiff must allege facts that place its claim facially outside the exception. See Kiehn v. United States , 984 F.2d 1100, 1105 n.7 (10th Cir. 1993). The district court held that plaintiffs’ claims fel l within the exception, which this court recently explained as follows: Under the FTCA, the United States waives its sovere ign immunity with respect to certain injuries caused by governme nt employees acting within the scope of their employment. 28 U. S.C. § 1346(b). The FTCA contains an exception to this broad waiverof immunity, however, for claims “based upon the exercise or per formance or the failure to exercise or perform a discretionary func tion or duty on the part of a federal agency or an employee of the Gove rnment, whether or not the discretion involved be abused.” Id. § 2680(a). . . . “The discretionary function exception . . . marks the bo undary between Congress’ willingness to impose tort liability uponthe United States and its desire to protect certain governmental acti vities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 808 (1984). If the discretionary function exception ap plies to the challenged governmental conduct, the United States retains its sovereign immunity, and the district court lacks su bject matter jurisdiction to hear the suit. See Johnson v. United States Dep’t of Interior , 949 F.2d 332, 335 (10th Cir. 1991). Tippett , 108 F.3d at 1196–97 (second omission in original)

. In dozens of cases in the last decade, this court h as determined whether government conduct was within the exception by usin g a two-branch analysis-11-

announced in Berkovitz ex rel. Berkovitz v. United States , 486 U.S. 531, 536–37 (1988). This court has summarized the analysis as follows: First, we determine whether the governmental conduc t at issue “is a matter of choice for the acting employee.” [ Berkovitz , 486 U.S.] at 536. “[C]onduct cannot be discretionary unless it involves an element of judgment or choice. Thus, the discretionary fun ction exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. (citation omitted). In such a situation, “the employee has n o rightful option but to adhere to the directive.” Id. If the conduct at issue involves an element of judg ment or choice, Berkovitz requires us to “determine whether that judgment is of the kind that the discretionary function excepti on was designed to shield.” Id. Congress preserved governmental immunity for discretionary functions to “prevent judicial ‘secon d-guessing’ of legislative and administrative decisions grounded i n social, economic, and political policy through the medium of an action in tort.” Id. at 536-37. Therefore, the exception “protects only go vernmental actions and decisions based on considerations of public policy.” Id. at 537.
Bell , 127 F.3d at 1228–29. This court has also noted the Supreme Court’s modification of Berkovitz ’s second branch: “Only decisions that are ‘suscept ible to policy analysis’ are protected by the . . . exception.” Daigle , 972 F.2d at 1538 (quoting Gaubert v. United States , 499 U.S. 315, 325 (1991)); see infra at 22–23 (discussing distinction between decisions “based on ” and “susceptible to” policy analysis).-12-

3. Plaintiffs’ FTCA Claims Plaintiffs’ general grievance is that the RTC violated the provision in the OTS order that the appointment was “not for the purpose of liquidation.” Notwithstanding that dictate, plaintiffs claim, the RTC proceeded to liquidate FSA. To add specific content to this most general claim, plaintiffs contend that the RTC breached twenty specific, mandatory require ments detailed in several agency manuals and directives which guided RTC empl oyees in managing institutions the RTC was appointed to conserve. a. Plaintiffs’ claims are not based upon the breach o f any specific, mandatory requirements contained in RTC manuals anddirectives. The gravamen of plaintiffs’ complaint is that the R TC engaged in unwise asset sales without considering all relevant factor s. Plaintiffs contend the RTC thereby impaired FSA’s franchise value and failed t o maintain the value, or maximize the sale price, of its assets. Plaintiffs ultimately contend that these failures show that the RTC’s intent was never to co nserve FSA, but was from the start to liquidate it. In other words, the RTC’s d ecisions whether, when, and how to sell or manage various assets are consistent with an intent to liquidate, and inconsistent with an intent to conserve. Day-to-day decisions in operating a financial insti tution involve discretion. Unless a regulation specifically mandates a particu lar action, such decisions satisfy the first branch of Berkovitz

. See Gaubert , 499 U.S. at 325–31 (1991) (applying10 The Court rejected the argument “that the challenge d actions fall outside the

discretionary function exception because they invol ved the mere application of technical skills and business expertise.” Gaubert , 499 U.S. at 331. That was “just another way of saying that the considerations involv[ed in] the day-to-day management of a business concern such as [a savings association] are so precisely formulated that decisions at the operational level never involve the exercise of discretion within the meaning of § 2680(a), a notio n that we . . . reject[].” Id. -13- Berkovitz to management of savings-and-loan). “Day-to-day m anagement of banking affairs, like the management of other busin esses, regularly requires judgment as to which of a range of permissible courses is the wisest.” Id. at 325. The Court found it “plain” that the actions at issue in Gaubert “involved the exercise of choice and judgment.” Id. at 331. 10 To distinguish Gaubert , plaintiffs must identify regulations governing th e RTC’s day-to-day management of a savings associatio n that are sufficiently specific and mandatory to eliminate the discretion that such management “plain[ly]” entails. After listing their twenty “s pecific and mandatory” provisions, plaintiffs challenge the particular sets of transactions discussed supra at 5. They focus on five requirements that the RTC allegedly v iolated in those transactions.

i. Most of the requirements on which plaintiffs focus are not specific and mandatory. Four of the five requirements are to maintain assetvalues, avoid sales that reduce franchise value, maximize value, and schedul e sales based on various

concerns:-14-



### C The RTC’s Asset Management and Disposition Manual h as an assetmarketing section, whose “purpose . . . is to estab lish policy guidelines for the packaging and sale of loans and other asset s.” It declares a policy of “tak[ing] the necessary steps to ensure that ass et integrity and value are maintained in order to maximize sales opportuni ties.”



### C The above section also notes that “[a]sset sales sh ould . . . occur quickly after [a financial] institution is placed into cons ervatorship if the sale does not negatively impact the franchise value of the institution.”



### C The “Background” paragraph of a directive on sellin g and managing securities says that the “RTC is charged with, amon g other things, the maximization of value in the timely and efficient d isposition of securities.”



### C The same directive also lists responsibilities of the RTC Capital Markets Branch. It directs the Branch to “[m]anage and sch edule timing of securities sales based on needs of institutions, market conditions, type of security, and ease of sale.” None of the four constitutes a “specific and mandat ory requirement” as this court’s precedents define that term. Instead, they all state general goals, or sets of objectives to balance, in precatory rather than man datory language.

In Tippett this court held that a Park Service policy that “[ t]he saving of human life will take precedence over all other mana gement actions” was “too general to remove the discretion from [a Park Range r’s] conduct” in a situation that threatened human life. See 108 F.3d at 1197. In Daigle this court addressed a statute defining environmental-remediation actions “necessary to prevent, minimize, or mitigate damage to the public health o r welfare.” The statute specified that the actions should “attain a degree of cleanup . . . [which,] at a minimum . . . [en]sures protection of human health and the environment.” See-15-

Daigle , 972 F.2d at 1540 (analyzing 42 U.S.C. §§ 9601(23) & 9621(d)(1)). It thus specified minimum attainments without specifying a course of action to attain them. This court held the statute did not contain “specific and mandatory directives.” See id.
The four passages above are no more specific or man datory than those in Tippett and Daigle . The first, which refers to RTC “policy,” leaves it to employees to decide which “steps” are “necessary.” The second mentions asset sales that “negatively impact the franchise value o f the institution” as an unelaborated caveat to a provision encouraging sales. It does not mandate any specific process or formula for determining which s ales will have such an impact. The third describes “maximization of value” as one RTC duty “among other things.” It neither elaborates that general comman d nor specifies how to perform the discretionary task of balancing timeliness, eff iciency, and return. The final passage lists four broad considerations to balance, in an unspecified calculus, without specifying a course of action for the compl ex task of managing asset sales.

ii. Plaintiffs failed to allege a damage claim for brea ch of a specific, mandatory duty to prepare case memoranda. The lone potentially troubling requirement among th e five on which plaintiffs have focused is found in the RTC’s AssetManagement and Disposition Manual. It directs employees preparing case memoranda, which are “formal written document[s] used to request authorization t o take . . . action on behalf of11 To allow plaintiffs to avoid the discretionary-func tion bar by alleging that RTC

employees breached a specific duty to report inform ation, even though the harmful decisions based on the information were the mselves discretionary, would be in tension with precedent. See Johnson v. United States , 949 F.2d 332, 339–40 (10th Cir. 1991) (rejecting attempt to base claim n ot only on discretionary decision how to conduct rescue, but on allegedly no ndiscretionary tasks of gathering and communicating data about accident, as latter tasks are “inextricably tied” to former, leaving “[n]o meaningful way . . . to consider [those tasks] apart from the total rescue decision”). In Johnson, however, no specific, mandatory requirement governed the information-gathering or c ommunication . See 949 F.2d at 340 n.10. Johnson thus does not foreclose an FTCA suit based on negli gence that did violate such a requirement. Other circuits’ precedent is divided. Compare Fisher Bros. Sales v. United States , 46 F.3d 279, 286–87 (3rd Cir. 1995) ( en banc ) (7–6) (barring such claims absolutely) with Gray v. Bell , 712 F.2d 490, 515–16 (D.C. Cir. 1983) (barring claim, but foreseeing exceptions to rule) (cited inJohnson , 949 F.2d at 340) and Payton v. United States , 679 F.2d 475, 482 & n.6 (5th Cir. Unit B 1982) ( en banc ) (similar, and similarly cited)). See also In re The Glacier Bay, 71 F.3d 1447, 1451–54 (9th Cir. 1995) (allowing comparable claim) ; General Dynamics Corp. v. United States , 139 F.3d 1280, 1283–86 (9th Cir. 1998) (trying to harmonize Fisher Bros. and Glacier Bay ); id. at 1287–88 (O’Scannlain, J., dissenting). See generallyRichard H. Seamon, Causation and the Discretionary Function Exception to the Federal Tort Claims Act , 30 U.C. Davis L. Rev. 691 (1997). Because plaintiffs’ claim is not actually based on a duty to report information, as discussed in text, this court expresses no opinion on the legal viability of such a claim. -16- the RTC,” to compare the proposed action to availab le alternatives. It specifies that “[a]ll the alternatives must be weighed compre hensively and objectively to determine the course of action in the best interestof the RTC.” There is some question whether that passage would qualify as a “s pecific and mandatory directive.” 11 Even if it does, however, plaintiffs’ complaint w as deficient because, as discussed below, it did not identify the mere fa ilure to physically prepare case memoranda weighing alternatives as the cause of pla intiffs’ injuries.-17-

The government denies that this passage is specific and mandatory. It argues that the passage simply “provides for altern atives to be ‘weighed . . .’” and thus “implicitly granted RTC discretion to identifythe pertinent options and determine the weight to attribute to each.” This a rgument has force insofar as it goes. But the passage does not only concern the di scretionary and unquantifiable mental process of weighing alternatives. It also c oncerns the arguably nondiscretionary and definitely quantifiable physic al process of drafting memoranda which weigh alternatives. On review of this Rule 12(b)(6) dismissal, this court must assume that RTC employees did not d raft case memoranda seeking authorization for the challenged transactions, or that, if they did, such memoranda failed to identify and weigh alternatives.
While the government has ignored the potential sign ificance of a requirement not just to weigh alternatives but to r ecord the process in writing, plaintiffs have ignored it as well. Their complaint did not attribute any harm to the breach of a specific mandate to draft memoranda , as opposed to a failure to perform the discretionary function of weighing opti ons. In that part of their complaint listing specific, mandatory requirements, plaintiffs simply allege that the RTC “failed to prepare Case Memoranda in the manner specifically mandated” and “failed to comprehensively and objectively weig h the alternative actions available to it as specifically mandated.” Their c omplaint then details three of the four “liquidation transactions” on which plaintiffs focus on appeal. In describing-18-

each transaction, the complaint perfunctorily and i dentically recites that the RTC acted “without comprehensively and objectively weig hing the alternative actions available to it.” Nowhere else in their 28-page co mplaint or in their response to the government’s motion to dismiss did plaintiffs a llude in any way to the specific duty to draft case memoranda.
After the bald assertion that the RTC failed to pre pare memoranda weighing alternatives, the only parts of the complaint whichin any way linked that requirement to any particular events or injuries si mply alleged that the RTC did not “comprehensively and objectively weigh the alte rnative actions available.” The complaint does not suggest that plaintiffs’ mul ti-million-dollar injuries flow from a failure to perform the arguably nondiscretio nary function of drafting memoranda listing alternatives, and not from neglec t of the discretionary function of “comprehensively and objectively weigh[ing] the alternative actions available.” Most importantly, plaintiffs have not argued on app eal that the district court should have read their complaint to allege that a f ailure to memorialize, as opposed to a failure to weigh options, caused theirinjuries.12 This court agrees with the district court, for subs tantially the reasons stated in

its opinion, that plaintiffs have not shown that any of the remaining fifteen requirements is both (a) specific and mandatory and(b) a basis for their claims. See Franklin III, 970 F. Supp. at 865–66. Plaintiffs’ brief on appe al merely repeats verbatim the complaint’s list of those requirements. -19- iii. Conclusion

. Accordingly, as discussed above and in the district court’s opinion, 12 none of the twenty provisions that the RTC allegedly vio lated can enable plaintiffs to show that their asserted injuries are based upon no ndiscretionary conduct. Those provisions thus afford no basis for reinstating pla intiffs’ dismissed complaint.
b. Plaintiffs cannot avoid the discretionary-functionbar by alleging the RTC intentionally ignored its specific mandate to c onserve and not liquidate FSA. Plaintiffs’ main argument is that “[t]he RTC as con servator was required to . . . operate and preserve FSA. Instead, it liquid ated FSA and failed to carry out this nondiscretionary obligation.” Plaintiffs note that the OTS order appointed the RTC “as conservator for the Association, not for th e purpose of liquidation.” They detail statutory provisions governing the RTC and r eflecting a congressional intent “that only receivers, and not conservators, have the power to liquidate.” Compare 12 U.S.C. § 1821(d)(2)(D) (conservator’s powers) with §§ 1821(c)(13)(B) & (d)(2)(E) (receiver’s powers). Plaintiffs argue th at, because their complaint was dismissed under Rule 12(b)(6), this court must assu me the truth of their factual allegations, i.e., that the RTC intentionally chose to liquidate rather than conserve13 One challenged transaction was not an asset sale. Plaintiffs argue the RTC

failed to timely exercise its statutory authority t o repudiate burdensome highinterest bonds before it issued reports on FSA’s capital which allegedly triggered the bonds’ defeasance. See 12 U.S.C. § 1821(e)(1) (giving FDIC/RTC discretion, as conservator, to disaffirm or repudiate any burde nsome contract if repudiation will promote orderly administration of institution’ s affairs). The RTC thus had statutory authority to perform the omitted act and discretion in exercising that authority. See id. Plaintiffs do not argue that the failure to repud iate breached any duty other than the general duty to conserve an d not liquidate. That failure thus raises no issues distinct from those raised bythe asset sales. -20- the Association, in violation of the OTS order. If so, then the RTC consciously violated the specific duty mandated by that order, stripping itself of the sovereign immunity preserved by the FTCA’s discretionary-func tion exception.
The specific transactions that plaintiffs challenge as revealing the RTC’s intentional violation of the order to conserve and not liquidate are mainly asset sales. 13 The RTC’s broad authority specifically included p ower to sell assets of institutions it was appointed to conserve. See 12 U.S.C. § 1821(d)(2)(G)(i)(II) (authorizing FDIC/RTC as conservator to “transfer any asset or liability” of institution). Plaintiffs do not dispute the discre tionary character of asset sales, beyond unsuccessfully invoking the RTC manuals. Tw o related questions, however, must be resolved: (1) can plaintiffs avoidthe discretionary-function bar by alleging that RTC employees performed facially a uthorized acts with an intent to liquidate; (2) are plaintiffs entitled to discov ery to show that the sales were meant not to conserve the Association, but to effect an intentional, de facto liquidation?-21- i. The purpose of the discretionary-function exception

. At the Rule 12(b) stage, this court cannot simply d isbelieve plaintiffs’ factual allegations about RTC officials’ intent, as the Government urges. Nonetheless, the purpose of the discretionary-funct ion exception compels this court to reject plaintiffs’ argument. The argumentpremises jurisdiction on an allegation that RTC employees intentionally undertook the forbidden function of liquidation rather than the mandated, discretionaryfunction of conservation. The Supreme Court has repeatedly insisted, as discussedbelow, that FTCA claims are not vehicles to second-guess policymaking. That pr inciple requires a federal court to dismiss an FTCA claim if jurisdiction is so depe ndent on allegations about government officials’ intent or decisionmaking proc ess that resolving the claim would require judicial inquiry into those subjectiv e matters.
The Supreme Court has consistently relied on the pu rpose of the discretionary-function exception in defining its scope. See Gaubert , 499 U.S. at 322–26; Berkovitz , 486 U.S. at 536–39; Varig , 467 U.S. at 807–10, 813–14; Dalehite v. United States , 346 U.S. 15, 32–34 (1953). The Court has stresse d that the main congressional purpose in creating the exce ption was to prevent litigants and courts from using FTCA actions as vehicles for “second guessing” executivebranch decisions based on public policy. See Gaubert , 499 U.S. at 323; Berkovitz , 486 U.S. at 536–37; Varig , 467 U.S. at 814; see also H.R. Rep. No. 77–2245, at 1014See Aragon v. United States , 146 F.3d 819, 823 (10th Cir. 1998); Bell v. United

States , 127 F.3d 1226, 1229 (10th Cir. 1997); Richman v. Straley , 48 F.3d 1139, 1147 (10th Cir. 1995); Black Hills Aviation, Inc. v. United States , 34 F.3d 968, 973 (10th Cir. 1994); Kiehn v. United States , 984 F.2d 1100, 1103 (10th Cir. 1993); Tinkler v. United States , 982 F.2d 1456, 1464 (10th Cir. 1992); Ayala v. United States , 980 F.2d 1342, 1347 (10th Cir. 1992); Daigle , 972 F.2d at 1538; Daniels v. United States , 967 F.2d 1463, 1464 (10th Cir. 1992); Johnson , 949 F.2d at 338; Redmon ex rel. Redmon v. United States , 934 F.2d 1151, 1156 (10th Cir. 1991); Zumwalt v. United States , 928 F.2d 951, 956 (10th Cir. 1991); Allen v. United States , 816 F.2d 1417, 1424 (10th Cir. 1987). The foregoin g opinions all quote or cite Berkovitz , 486 U.S. at 536–37, Varig , 467 U.S. at 814 or 820, or both, or refer without attribution to “second guess ing.” -22- (1942) (discussing exception). This court has repe ated that statement of the exception’s animating purpose in a dozen published opinions since Varig

. 14

Under the test first established in Berkovitz , the government must show that the challenged conduct involves discretion, and that the discretion is of the type Congress intended to protect. Under Berkovitz , that meant an exercise of discretion “based on considerations of public polic y.” 486 U.S. at 537. In Gaubert , the Court elaborated on Berkovitz , establishing a “strong presumption” that an employee who exercised discretion did so inaccord with the policy considerations which led Congress or an agency to confer that discretion. See 499 U.S. at 324. The Court stressed that “[t]he focus of the inquiry is not on the agent’s subjective intent in exercising the discret ion conferred . . ., but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Id. at 325; see also Kiehn , 984 F.2d at 1105 (discussing Gaubert and holding that “lack of record evidence of public policy factors i n the . . . decision . . . is-23-

immaterial” because “it is unnecessary for governme nt employees to make an actual ‘conscious decision’ regarding policy factors” (quoting Johnson , 949 F.2d at 339)); Daigle , 972 F.2d at 1542 (applying presumption that exerc ise of discretion was based in policy despite allegation that officials “‘rushed into [action] without proper planning’”).

The Court’s modification of the second branch of Berkovitz to ask whether an exercise of discretion was “susceptible to polic y analysis” has lightened the Government’s burden. The change has also served to emphasize that courts should not inquire into the actual state of mind or decisi onmaking process of federal officials charged with performing discretionary functions. See, e.g., Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity , 72 Notre Dame L. Rev. 447, 464–69, 473 (1997) (counting pre- and post- Gaubert case outcomes to show that eliminating inquiry into actual decisionm aking has made it much easier to get FTCA claims dismissed); Richard H. Seamon, Causation and the Discretionary Function Exception to the Federal Tort Claims Act , 30 U.C. Davis L. Rev. 691, 708–10 (1997) (explaining how Gaubert has “made it even easier for the government to satisfy the second part of the [ Berkovitz ] test”).

The en banc Third Circuit recently read Gaubert broadly to restrict all inquiry into officials’ subjective decisionmaking. See Fisher Bros. Sales v. United-24-

States , 46 F.3d 279, 285–87 (3rd Cir. 1995) ( en banc ) (7–6). Fisher Brothers concerned a different type of challenge to a discre tionary decision than this case, but the court’s reasoning in determining the type of inquiry that Gaubert bars is applicable.
The case involved the FDA Commissioner’s indisputab ly discretionary decision to bar Chilean grapes from the United States. See id. at 282. The decision followed FDA scientists’ allegedly neglige nt testing of grape samples, which falsely indicated cyanide. See id. at 282–83. The en banc court concluded that Gaubert ’s rationale requires dismissal of FTCA claims if aprotected exercise of discretion immediately caused the damages. See id. at 282, 286–87. The opinion requires dismissal even if plaintiffs disav ow any challenge to the exercise of discretion itself. It thus bars suit for neglig ent performance of nondiscretionary data-gathering functions that preceded a discretion ary decision, so long as the decision itself immediately caused the harm. See id. at 286–87. See generally Seamon, supra , at 722–52 (analyzing case).
Despite accepting plaintiffs’ version of the facts and conceding that their claims were in a literal sense “based upon” the neg ligent testing rather than the Commissioner’s decision, the court nonetheless reje cted their theory of proximate cause as “inconsistent with the purpose of the disc retionary function exception.”15 As a commentator has noted, there is in fact some d ifference in the “‘quality’”

of interference occasioned by judicial second-guess ing if plaintiffs attack not the discretionary decision itself, but data-gathering that preceded it. See Seamon, supra , at 735–36 (quoting Fisher Bros. , 46 F.3d at 286). In the latter case, a court need not second-guess the decision’s wisdom; it need only examine the decisionmaking process to determine whether the neg ligently produced data affected it. See id. -25- Id. at 286. The court relied on Gaubert to define the range of inquiry which that purpose forecloses:
[W]here the injury . . . is caused by a regulatory policy decision, . . . there is no difference in the quality or quantity o f the interference occasioned by judicial second guessing, whether the plaintiff purports to be attacking the data base on which the policy i s founded or . . . challeng[es] the policy itself. If plaintiffs [could] . . . challeng[e] the manner in which the underlying data was collected, federal courts, of n ecessity, would be required to examine in detail the decisionmaking pr ocess of the policymaker to determine what role the challenged d ata played in the policymaking . . . . Without such an examination a nd all of the discovery that would necessarily precede it, a plai ntiff . . . would be unable to prove a causal link between the alleged n egligence and the alleged injury. Yet this is precisely the kind of inquiry that the Supreme Court sought to foreclose when it ruled outany inquiry into an official’s “subjective intent in exercising the discretion conferred by statute or regulation.”
Id. (quoting Gaubert , 499 U.S. at 325). 15
The court held that policy compelled it to read Gaubert as an affirmative bar to any inquiry into officials’ subjective decisionm aking: “[t]he social cost of permitting the inquiries required by the plaintiffs’ theory are prohibitive.” Id. The-26-

majority identified three types of social cost: (1) large tort judgments against the government; (2) demands on the time and attention o f an agency’s “most valuable human resources” when plaintiffs conduct discovery into the bases for officials’ decisions; and (3) the cost, as Seamon puts it, “of having an official’s exercise of discretion skewed by her desire to avoid the first two kinds of costs.” Id. at 286–87; Seamon, supra , at 737. Those costs result whether a court exami nes the wisdom of the discretionary decision, or merely det ermines if negligent datagathering affected it. See Seamon, supra , at 738–47; Fisher Bros. , 46 F.3d at
286–87.
Unlike a direct challenge to the exercise of a disc retionary function, which the FTCA plainly bars, plaintiffs’ theory would notrequire analysis of whether the RTC was negligent or abused its discretion while trying to perform the function of conservation. And unlike a Fisher Brothers –type claim, it would not require analysis of whether any particular data had affecte d the exercise of discretion. Plaintiffs’ theory would instead require judicial i nquiry into whether the RTC had in fact tried to perform the discretionary functionof conservation, or had instead intentionally chosen to perform, sub rosa , the function of liquidation. While differing from a direct or a Fisher Brothers –type challenge, plaintiffs’ theory would thus still require a court to permit discovery and make factual findings regarding RTC employees’ state of mind and intent i n running the Association. This the discretionary-function exception does not allow.-27- ii. Analogous doctrines limiting inquiry into officials ’ decisionmaking. Other doctrines applicable to official conduct support a reading of Gaubert as an affirmative bar to inquiry into officials’ su bjective intent and decisionmaking. One such doctrine is qualified immunity. See, e.g., Harlow v. Fitzgerald , 457 U.S. 800, 813–19 (1982) (discussing official immunity from suits seeking damages for constitutional torts).

In Harlow , the Supreme Court revised the standard for motion s to dismiss based on the doctrine of qualified immunity. See id. at 814–18. The Court noted it had crafted the doctrine as a compromise betweenthe need to redress constitutional harms and the need to minimize disruption of officials’ duties. See id. at 813–14. In so doing, it had assumed that quali fied immunity “would permit ‘[i]nsubstantial lawsuits [to] be quickly terminated.’” Id. at 814 (quoting Butz v.
Economou , 438 U.S. 478, 507–08 (1978)). This would mitigat e the costs to society of frequent, unfounded claims against offic ials. Those costs include not only direct expenses of litigation, but “diversion of official energy from pressing public issues, . . . deterrence of able citizens fr om acceptance of public office . . . [and] danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officia ls], in the unflinching discharge of their duties.’” Id. (quoting Gregoire v. Biddle , 177 F.2d 579, 581 (2d Cir.16 The Court here used the term in its common-law sens e, which distinguishes

“discretionary” from “ministerial” acts, and not inits distinct but related FTCA sense. -28- 1949) (L. Hand, J.)). The direct, diversionary, an d dampening costs are the same as those noted by the Fisher Brothers court in FTCA suits. See 46 F.3d at 286–87.

Before Harlow , qualified immunity depended on both the objective reasonableness and subjective good faith of official conduct. See Harlow , 457 U.S. at 815 (discussing Wood v. Strickland , 420 U.S. 308, 322 (1975)). Good faith, a factual issue, proved unamenable to summary judgment. See id. at 816 & n.27. The Harlow Court thus concluded that “[t]he subjective element. . . has proved incompatible with our admonition in Butz that insubstantial claims should not proceed to trial.” Id. at 815–16. The Court further explained that “subs tantial costs,” beyond simply prolonging insubstantial clai ms, “attend the litigation of the subjective good faith of government officials.” Id. at 816. Such litigation had proved peculiarly and broadly disruptive:
There are special costs to “subjective” inquiries o f this kind. Immunity generally is available only to officials p erforming discretionary functions. [16 ] In contrast with the thought processes accompanying “ministerial” tasks, the judgments surrounding discretionary action almost inevitably are influenc ed by the decisionmaker's experiences, values, and emotions. These variables explain in part why questions of subjective intent so rarely can be decided by summary judgment. Yet they also frame abackground in which there often is no clear end to the relevant e vidence. Judicial inquiry into subjective motivation therefore may entail broad-ranging17 The Court has limited Mitchell , allowing immediate appeal only of denials of

immunity turning on questions of law, not sufficien cy of evidence. See Johnson v. Jones , 515 U.S. 304, 313 (1995), lim’d in turn by Behrens v. Pelletier , 516 U.S. 299, 312–13 (1996) (holding that genuine factual di spute does not preclude appeal of discrete ruling on pure legal issue). -29- discovery and the deposing of numerous persons, inc luding an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.
Id. at 816–17 (footnotes omitted). To limit such disruption, the Court adopted a purely objective test for qualified immunity, holdi ng that “bare allegations of malice should not suffice to subject government off icials either to the costs of trial or to the burdens of broad-reaching discovery.” Id. at 817–18.
The Court has since emphasized that qualified immun ity entails a right to have suits dismissed at “the earliest possible stag e of the litigation,” sparing officials not only from liability but also from discovery and trial. See Anderson v. Creighton , 483 U.S. 635, 646 n.6 (1987) (citing Mitchell v. Forsyth , 472 U.S. 511, 526 (1985) (making denial of qualified immunity imm ediately appealable, lest right to avoid discovery and trial be lost)). 17 The Court recently held that the right to be free from discovery is sufficiently importantto entitle a defendant to immediately appeal the denial of a Rule 12(b)(6) mo tion without sacrificing the right to immediately appeal a later denial of a summary-judgment motion. See Behrens v. Pelletier , 516 U.S. 299, 308 (1996) (rejecting one-appeal ru le in part because “ Harlow and Mitchell make clear that [qualified immunity] is meant to18 As illustrated by the opinion establishing that mun icipalities do not share their

employees’ qualified immunity from § 1983 liability , the analogy between discretionary-function immunity, which limits governmental liability, and qualified immunity, which limits officials’ persona l liability, is imperfect. See Owen v. City of Independence , 445 U.S. 622, 650–58 (1980). The Owen Court declined to rely on qualified-immunity rationales t o create a governmental immunity. See id. at 653–56. It opined that governmental liability is less likely than personal liability to “paralyz[e] the governin g official’s decisiveness and distort[] his judgment on matters of public policy. ” Id. at 655–56. Owen ’s rejection of a qualified-immunity analogy in the § 1983 context is nonetheless irrelevant in construing the discretion ary-function exception for several reasons. The Owen majority’s tentative empirical speculation that governmental liability may not affect individual of ficials was dictum on which the Court did not rely, perhaps because the four dissenting Justices soundly and forcefully criticized the majority’s passing comment to that effect. Compare id. at 656 (deeming “questionable” but not rejecting li nk between governmental liability and official timidity); with id. at 668–69 (Powell, J., dissenting). Owen ultimately relied not on an empirical rationale buta normative one: fear of governmental liability under § 1983 should lead officials to alter their decisionmaking to avoid infringing constitutional r ights. See id. at 656. This holding is irrelevant in construing the FTCA, whichdoes not protect constitutional rights that trump more mundane polic y concerns. Cf. id. at 649–50 (rejecting analogy to municipal discretionary-funct ion immunity as reason to create qualified municipal immunity under § 1983 be cause, in § 1983 action, court “does not seek to second-guess the ‘reasonabl eness’ of the city’s decision” but only to determine if it violated federal Consti tution or laws). The rule that courts must construe § 1983 broadly to serve its re medial purpose, on which Owen relied, has no parallel under the FTCA. Compare id. at 650 with Smith v. United States , 507 U.S. 197, 203 (1993) (disavowing “varying [pa st] statements as to how [the FTCA] should be construed” and adopt ing rule that courts “‘should not take it upon ourselves to extend the waiver bey ond that which Congress intended . . . [or] narrow the waiver that Congress intended.’”) (quoting United (continued...) -30- give government officials a right, not merely to av oid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as disc overy . . ., as “[i]nquiries of this kind can be peculiarly disruptive of effective government.”’” (quoting Mitchell , 472 U.S. at 526 (quoting Harlow , 457 U.S. at 817))). 1818 (...continued)

States v. Kubrick, 444 U.S. 111, 117–18 (1979)). This court had at times said before Smith that “[e]xceptions to the FTCA are to be narrowly construed.” Johnson , 949 F.2d at 336; see also Miller v. United States , 710 F.2d 656, 662 (10th Cir. 1983); First Nat’l Bank in Albuquerque v. United States , 552 F.2d 370, 376 (10th Cir. 1977); Smith v. United States , 546 F.2d 872, 877 (10th Cir. 1976). Such comments are no longer valid. Finally, Owen predated Harlow ’s conclusion, made after further experience with qualified-immuni ty litigation, that an immunity doctrine must exclude “peculiarly disruptive” subje ctive inquiry if it is to protect governmental efficiency. See 457 U.S. at 817. -31- A ban on FTCA actions which require inquiry into of ficials’ subjective decisionmaking also finds support by analogy to a “ central tenet of administrative law.” See Seamon, supra , at 743–44. The tenet is that courts should not “ ‘probe the mental processes’” of administrative officials in APA or comparable review.
See United States v. Morgan , 313 U.S. 409, 422 (1941) (quoting Morgan v. United
States , 304 U.S. 1, 18 (1938)). In Morgan , Justice Frankfurter disapproved a court’s decision to allow a party to interrogate a Cabinet Secretary “regarding the process by which he reached the conclusions of [a c hallenged] order, including the manner and extent of his study of the record and hi s consultation with subordinates.” Id. The Court said that “the Secretary should never h ave been subjected to this examination.” Id. ; see also, e.g. , Franklin Savings Ass’n v. Ryan , 922 F.2d 209, 211–12 (4th Cir. 1991) (discussing breadth of Morgan doctrine and applying it to bar examination of former OTS Direct or regarding his decision to appoint conservator for FSA). Like Harlow ’s purely objective test for qualified immunity, the Morgan doctrine “allow[s] officials to perform their duti es without19 The Morgan rule has a second, very narrow exception for cases in which a lack

of contemporary findings or other administrative re cord makes effective judicial review impossible without examining the decisionmak er. See Community for Creative Non-Violence v. Lujan , 908 F.2d 992, 997–98 (D.C. Cir. 1990) (citing Overton Park, 401 U.S. at 420); see also Pension Benefit Guar. Corp. v. LTV Corp. , 496 U.S. 633, 654 (1990) (“Subsequent cases have made clear that remanding to the agency [to explain its reasoning m ore fully] in fact is the preferred course”). -32- fear of harassment from lawsuits.” Stephen G. Brey er & Richard B. Stewart, Administrative Law and Regulatory Policy: Problems, Text, and Cases 868 (3d ed. 1992).
Unlike qualified immunity under Harlow , however, the Morgan rule has an exception for cases involving “a strong showing of bad faith or improper behavior.” See Community for Creative Non-Violence v. Lujan , 908 F.2d 992, 997 (D.C. Cir. 1990) (citing Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 420 (1971)). 19 At first blush, that exception may suggest that analogizing to Morgan in the present case would support reversing the di smissal. A comparison, however, of the purposes of and relief available un der the APA and the FTCA demonstrates that it is proper to allow judicial in quiry into subjective decisionmaking in a small number of APA cases, but to preclude it in all FTCA

cases. The APA’s purpose is to authorize judicial scrutinyof executive-branch decisionmaking, with two narrow exceptions; it created a “basic presumption of20See Act of June 11, 1946, ch. 324, 60 Stat. 237 (APA) (codified as amended at 5

U.S.C. §§ 701–706); Legislative Reorganization Act of 1946, Pub. L. No. 79–601, tit. IV, 60 Stat. 812, 842 (1946) (FTCA) (codified as amended at 28 U.S.C. §§ 1346(b), 2671–2680). -33- judicial review.” See Abbott Labs. v. Gardner , 387 U.S. 136, 140 (1967) (construing 5 U.S.C. §§ 701–702). The FTCA’s purpos e, by contrast, is to remove sovereign immunity as a bar to compensating people hurt by federal employees’ garden-variety common-law torts. See Kosak v. United States , 465 U.S. 848, 855 (1984); Dalehite , 346 U.S. at 28; Seamon, supra , at 739 n.195. Its purpose is not to facilitate judicial second-guessing of executive decisionmaking. Such secondguessing is, instead, the point of the APA, which C ongress enacted in the same year as the FTCA. 20 Given the statutes’ diametrically opposed yet co mplementary purposes, it is sensible to allow judicial inquiry into bad faith and subjective decisionmaking in a few exceptional cases under the APA, but to ban all FTCA suits that necessitate that peculiarly disruptive i nquiry.
Treating bad-faith claims differently under the APAand FTCA also accords with the divergent remedies under the two statutes. The APA presumptively authorizes judicial review of almost all administrative acts. See Abbott Labs , 387 U.S. at 140; see also Block v. Community Nutrition Inst. , 467 U.S. 340, 349 (1984); Overton Park , 401 U.S. at 410. As a concomitant of that broad applicability, Congress has limited the relief avai lable under the APA by waiving sovereign immunity only as to suits “seeking relief other than money damages.” 521 Because review of bad faith may be available under the APA, moreover, a

refusal to permit such inquiry in FTCA suits will n ot leave all plaintiffs without remedy. See Seamon, supra , at 741 & n.204. -34- U.S.C. § 702. The raison d’etre of the FTCA, by contrast, is to waive sovereign immunity to suits seeking relief via money damages.
The possibility of damage awards creates a strong i ncentive to bring FTCA claims. See Ronald A. Cass, The Discretionary Function Exception to the Federal Tort Claims Act , in 2 Administrative Conf. of the United States, Recommendations and Reports 1503, 1519–27 (1987). This incentive, absent in A PA suits, suggests the need for a stricter limit on FTCA litigants’ ab ility to require federal courts to scrutinize officials’ subjective decisionmaking. T he discretionary-function exception provides that limit. The exception must bar all suits dependent on allegations of subjective bad faith if it is to serve its purposes: to protect the separation of powers and executive-branch efficienc y from the disruptive discovery and judicial scrutiny that would result i f large potential damage awards produced numerous suits, and those suits could not be summarily dismissed because of the factual nature of intent and good fa ith. Because the APA averts the threat of numerous suits by excluding damages, the narrow bad-faith exception to the rule against examining subjective decisionmaking poses no such risk. 21

Both Harlow and Morgan thus support the view that Gaubert should bar any FTCA claim for which jurisdiction necessarily depen ds on an employee’s bad faith-35-

or state of mind in performing facially authorized acts. In this case, the RTC’s statutory powers as conservator authorized all the acts which plaintiffs challenge as a liquidation. Those acts, if done in good fait h, entailed an exercise of discretion. Without probing RTC officials’ intent and good faith, there is no way ultimately to determine whether their acts constituted a covert, intentional liquidation or an effort, perhaps negligent, at con servation.
Faced with the related question whether an official ’s acts, if allegedly done in bad faith, can still be within his or her scope of duty for purposes of official immunity, the Supreme Court acknowledged the argume nt that “‘official powers, since they exist only for the public good, never co ver occasions where the public good is not their aim, and hence . . . to exercise a power dishonestly is necessarily to overstep its bounds.’” Barr v. Matteo , 360 U.S. 564, 572 (1959) (quoting Gregoire , 177 F.2d at 581). After a “moment’s reflection,” the Court rejected that theory in light of the immunity doctrine’s purpose:
“[T]hat cannot be the meaning of the [scope-of-duty ] limitation without defeating the whole [official-immunity] doc trine. What is meant by saying that the officer must be acting within his power [to enjoy official immunity for his acts] cannot be mor e than that the occasion must be such as would have justified the a ct, if he had been using his power for any of the purposes on whose ac count it was vested in him.”
Id. (quoting Gregoire , 177 F.2d at 581). The same is true of the FTCA’s requirement that an official be engaged in performi ng a discretionary function in-36-

order to preserve sovereign immunity. What is meant by saying that the officer must be performing a discretionary function cannot be more than that the discretionary function would have justified the act , if the official had been exercising discretion in good faith for any of the purposes on whose account that discretion was vested in the official. Immunity doctrines can not function well if mere allegations of bad faith will penetrate them a nd require trial, or at least sufficient discovery to allow summary judgment, rather than dismissal under Rule 12(b)(6). Cf. Behrens , 516 U.S. at 508 (noting officials’ right to rely on Rule 12(b)(6) to avoid pre–summary judgment discovery, n ot just trial, in construing qualified-immunity doctrine).

iii. Conclusion.
The inquiry necessary to decide whether this case i nvolved “negligent, good-faith conservation” or “intentional, bad-faithliquidation” would entail the type of judicial second-guessing which led the Gaubert Court to hold that courts need not consider officials’ actual decisionmaking in FTCA cases. See 499 U.S. at 325. Such an inquiry would impose the same social costs which the Court presumably considered in Gaubert , which the Third Circuit discussed in extending Gaubert to bar claims that require even noncritical examin ation of discretionary decisionmaking, and which the Supreme Court discuss ed in adopting a purely-37-

objective standard for qualified immunity. See Fisher Bros. , 46 F.3d at 286–87; Harlow , 457 U.S. at 814–17.
A rule requiring dismissal of FTCA claims which nec essarily turn on employees’ intent or subjective bad faith has one p otentially troubling effect. It amounts to an irrebuttable presumption that an empl oyee ordered or required by law to perform a discretionary function, and whose acts are facially consistent with that function, did try in good faith to perform it. That irrebutable presumption will inevitably compel dismissal in cases, hopefully rar e, in which an official intentionally ignored or subverted a duty, but not in a way discernible from his or her objective acts or omissions. To note this unav oidable cost is to invoke Learned Hand’s “classic statement of the rationale for official immunity”:
“[A]n official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motiv e not connected with the public good, should not escape liability f or the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for [denying recovery] is that it is impossible to know whether the claim is well founded until the case ha s been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of i ts outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of thei r duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an offic ial may later find himself hard put . . . to satisfy a jury of his goo d faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter fromexposing such as-38-

have been honestly mistaken to suit by anyone who h as suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alte rnative. In this instance it has been thought in the end better to l eave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Richard H. Fallon, Jr., et al., Hart & Wechsler’s The Federal Courts and the Federal System , 1165 (4th ed. 1996) (quoting Gregoire , 177 F.2d at 581).
c. The RTC did not engage in nongovernmental activityin commerce barring a conclusion that it exercised the sort of discretion the exception protects. Plaintiffs’ final FTCA argument addresses the second branch of Berkovitz by invoking the Supreme Court’s recent decision in United States v. Winstar Corp. , 518 U.S. 839 (1996). Under Winstar , plaintiffs argue, the Government ceases to exercise discretion of the sort protectedby the FTCA, and thus forfeits its sovereign immunity, when it enters commerce to perform such activities as managing a savings-and-loan association. See id. at 895. Winstar , however, concerns the United States’ contractual obligations , not its tort liability. It is thus inapplicable. Winstar concerned thrifts’ attempts to enforce regulatory contracts with the United States. Id. at 843–44. The Court observed that “‘[w]hen the United States enters into contract relations, its r ights and duties therein are governed generally by the law applicable to contrac ts between private individuals.’” Id. at 895 (quoting Lynch v. United States , 292 U.S. 571, 579-39-

(1934)). In a footnote the Court also quoted its ancient observation that “when the United States ‘comes down from its position of sove reignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there.’” Id. at 895 n.39 (quoting Cooke v. United States , 91 U.S. 389, 398 (1875)). That footnote, however, did not change, direct, or compr ess the scope of the discretionary-function exception for tort claims. Nor did it implicitly overrule the central premise of Gaubert : oversight of financial institutions generally ent ails discretion of the sort protected by the exception. See 499 U.S. at 324–25.

C. The FTCA Bars Plaintiffs’ Tort Claims Asserted Dir ectly Against the FDIC. The FDIC’s organic statute empowers the FDIC “to su e and be sued in its corporate capacity.” 12 U.S.C. § 1441a(b)(9)(E). The district court rejected plaintiffs’ theory that this section entitled them to bring tort claims directly against the FDIC, regardless of the limits in the FTCA. See Franklin III , 970 F. Supp. at 868. The court aptly quoted the Supreme Court’s re cent holding that,
“In order to place torts of ‘suable’ agencies . . . upon precisely the same footing as torts of ‘nonsuable’ agencies, Cong ress, through the FTCA, limited the scope of sue-and-be-sued waivers such as that contained in [the FDIC’s] organic statute.” Specif ically, Congress stated [in the FTCA]: The authority of any federal agency to sue and be s ued in its own name shall not be construed to authorize su its against such federal agency on claims which are cognizable under [the FTCA, 28 U.S.C. § 1346(b)], and-40- the remedies provided by [the FTCA] in such cases s hall be exclusive. 28 U.S.C. § 2679(a). “Thus, if a suit is ‘cognizab le’ under § 1346(b) of the FTCA, the FTCA remedy is ‘exclusive’ and the federal agency cannot be sued ‘in its own name,’ despite the exist ence of a sue-and-be-sued clause.” Id. (quoting FDIC v. Meyer , 510 U.S. 471, 476 (1994) (first alteration in Meyer ) (citation omitted from Meyer )). The court further correctly explained that plaintiffs’ suit is “cognizable” under § 1346(b): i t is a straightforward State-law tort suit. See id. (citing In re Cedar Vale State Bank , 894 P.2d 816 (Kan. 1995) (recognizing claim against bank receiver)). The co urt also rejected the argument, which plaintiffs repeat on appeal, that “if the tort claim against the United States fails because of the discretionary function excepti on, it is not cognizable under § 1346(b) and the RTC is subject to the tort claim under its sue-and-be-sued [clause].” See id. As the district court correctly noted, this argum ent would make the discretionary-function exception a meaningless rule of pleading: “Litigants could avoid the force of the statute merely by suing an agency directly.” Id. Plaintiffs add no persuasive authority to their the ory on appeal. This court affirms the dismissal of their common-law tort claims again st the FDIC for substantially the reasons stated in the district court’s opinion.-41-

IV. CONCLUSION

This court AFFIRMS the dismissal of all claims for lack of subject-matter jurisdiction.