Fannie Mae-No Politics (FNMA)

[obiterdictum]

No. The District Court will most likely apply a two step process dictated by the Supreme Court, (Berkovitz v. United States, 486 U.S. (1988), that will determine if the exception applies or not in this case.

For example:

The Berkovitz formulation of section 2680(a) analysis, enhanced by Gaubert, has proved to be the most useful analytic tool offered by the Supreme Court in discretionary function jurisprudence. Most current lower federal court decisions track Berkovitz's two-stage analysis: 1) determining first whether existing law gives government officers the legal authority to make the questioned decision and 2) determining then whether the decision made involves the social, economic, and political factors that Congress meant to protect under section 2680(a). This dual analysis does not answer every discretionary function question. It does allow, however, a more structured analysis than did previous Supreme Court tests.

http://mainelaw.maine.edu/academics/maine-law-review/pdf/vol47_2/vol47_me_l_rev_365.pdf

The lawyers of Gibson Dunn and Crutcher regularly argue before the Supreme Court and I assume they know of this exception and how to handle it when and if it is brought up in the case and as easily as I was in finding and learning about these items.