Is the Federal Trade Commission liable for actions that are discretionary in nature?

Under 28 U.S.C. 2680(a), the United States is not liable under the FTCA for acts that are discretionary in nature, i.e., those that involve judgment or choice and are based on considerations of public policy. United States v. Gaubert, 499 U.S. 315, 322-23 (1991). To survive a motion to dismiss on the basis of this exception, a plaintiff must allege facts sufficient to support a finding that the challenged actions cannot be said to be grounded in public policy. Id. at 324-25. The government need not subjectively be exercising its discretion; it is enough if the actions taken are susceptible to policy analysis. Id. at 325.