Ard v. Federal Deposit Insurance
770 F. Supp. 2d 1029
C.D. Cal.2011Background
- IndyMac Bank was closed by the OTS on July 11, 2008, with the FDIC appointed as receiver under 12 U.S.C. § 1821(c)(2)(A).
- Plaintiffs Ard deposited funds at IndyMac and claim about $2.13 million in losses following the closure.
- Plaintiffs previously sued the FDIC as receiver in a related case; that suit was dismissed as prudentially moot.
- Plaintiffs filed this FTCA action on May 19, 2010, naming the United States (FDIC and OTS referenced in prior posture) and asserting negligence and negligent supervision based on public statements about IndyMac’s financial health.
- Defendant moved to dismiss arguing res judicata/collateral estoppel and, alternatively, lack of subject-matter jurisdiction under the FTCA discretionary-function and misrepresentation exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FTCA discretionary function exception bars the claims | Ard asserts the statements were due to negligence but not discretionary. | OTS/FDIC actions in public statements involve discretionary policy judgments; thus barred. | Discretionary function exception bars the claims. |
| Whether the misrepresentation exception bars the claims | Misrepresentations were not the asserted basis; negligence independent of misrepresentation. | Public statements about IndyMac’s stability constitute misrepresentation; FTCA barred. | Misrepresentation exception bars the claims. |
| Whether negligent supervision claims are barred | Supervision failure allowed negligent statements. | Supervision decisions are discretionary and policy-based; barred. | Discretionary function and misrepresentation exceptions bar negligent supervision. |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (Supreme Court, 1991) (two-step test for discretionary function exception; discretion and policy analysis)
- Berkovitz v. United States, 486 U.S. 531 (Supreme Court, 1988) (mandatory regulations remove discretion; if not, policy analysis applies)
- United States v. Varig Airlines, 467 U.S. 797 (Supreme Court, 1984) (policy analysis framework for discretionary acts)
- United States v. Neustadt, 366 U.S. 696 (Supreme Court, 1961) (misrepresentation exception for negligent misrepresentation claims)
- Fowler v. United States, 913 F.2d 1382 (9th Cir., 1990) (misrepresentation-based relief; negligence framed as misrepresentation)
- Leaf v. United States, 661 F.2d 740 (9th Cir., 1981) (causation linked to government misrepresentation; misrepresentation exception applies)
- Block v. Neal, 460 U.S. 289 (Supreme Court, 1983) (FTCA misrepresentation scope and reliance principles)
- Dorking Genetics v. United States, 76 F.3d 1261 (2d Cir., 1996) (discretionary function and sovereign immunity framework in FTCA)
- Kennewick Irrigation District v. United States, 880 F.2d 1018 (9th Cir., 1989) (safety/regulatory policy standards affect discretion)
- Gager v. United States, 149 F.3d 918 (9th Cir., 1998) (supervision decisions fall within discretionary function)
- Tonelli v. United States, 60 F.3d 492 (8th Cir., 1995) (employee supervision decisions typically involve policy judgment)
- Miller v. United States, 163 F.3d 591 (9th Cir., 1998) (challenged action susceptible to policy analysis; discretion presumed)
- Frigard v. United States, 862 F.2d 201 (9th Cir., 1988) (sovereign immunity bar for discretionary functions)
- Dichter-Mad Family Partners, LLP v. United States, 707 F. Supp. 2d 1016 (C.D. Cal., 2010) (cited for FTCA discretionary function reasoning (no official reporter cited here; included for context))
- Frigard v. United States, 862 F.2d 201 (9th Cir., 1988) (reiterated discretionary function governance)