502 F.Supp.3d 1266
E.D. Tenn.2020Background
- The Chimney Tops 2 Fire (Nov. 2016) spread outside Great Smoky Mountains National Park, causing deaths and property losses; insurer-plaintiffs sued the United States under the FTCA for alleged NPS negligence.
- Plaintiffs allege NPS violated multiple written policies (FMP, Fire Monitoring Handbook, RM-18, DO-18, Redbook) governing monitoring, notifications, command structure, and decision tools.
- The United States moved to dismiss for lack of subject-matter jurisdiction invoking the FTCA discretionary function exception; it brought a facial Rule 12(b)(1) challenge.
- An interagency After-Fire Report exists; the court accepted its factual statements for the motion but held the report’s legal conclusions are not dispositive of the discretionary-function analysis.
- The court granted the government’s motion in part and denied it in part: it found most operational decisions protected by the discretionary-function exception, but held that certain FMP provisions requiring notification (§3.3.2 and Table 13 of §4.4.2) are mandatory and not shielded, so jurisdiction exists for those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of After-Fire Report on jurisdiction | After-Fire Report admissions establish NPS had no discretion, so discretionary-function does not apply | Report statements are characterizations; legal analysis must rely on the text of policies, not report conclusions | Court treated the report as fact for now but declined to treat its legal conclusions as conclusive; analysis rests on the written policies |
| Fire monitoring (use of monitoring and associated guidance) | FMP, Fire Monitoring Handbook, RM-18, DO-18 impose mandatory monitoring duties | These documents are guidance/frameworks that permit judgment and methods selection | Court held monitoring guidance left NPS discretion; discretionary-function exception applies to monitoring decisions |
| Duty to notify neighbors/public (FMP §3.3.2 & Table 13 §4.4.2) | These FMP provisions require notifying park neighbors and posting current fire information; mandatory, not discretionary | Provisions are vague or conditional, leaving NPS discretion about who, when, and how to notify | Court held those specific FMP provisions are mandatory (no discretion) and thus are not covered by the discretionary-function exception; jurisdiction exists on these claims |
| Command structure, step-up plan, WFDSS, complexity checklist | Policies required specific staffing/roles, use of WFDSS, and complexity analysis before ordering resources | Policies provide a framework and expressly require judgment in application; operational choices are discretionary | Court held operational/command/WFDSS/complexity decisions involve policy judgment and are protected by the discretionary-function exception |
Key Cases Cited
- United States v. Gaubert, [citation="499 U.S. 315"] (1991) (articulates two-prong test for discretionary-function exception)
- Berkovitz by Berkovitz v. United States, [citation="486 U.S. 531"] (1988) (discretionary-function exception limits FTCA waiver; distinction between mandatory and discretionary conduct)
- United States v. Varig Airlines, [citation="467 U.S. 797"] (1984) (policy-based protection from judicial second-guessing)
- Rosebush v. United States, [citation="119 F.3d 438"] (6th Cir. 1997) (warning that defining conduct as negligence can defeat discretionary-function analysis)
- A.O. Smith Corp. v. United States, [citation="774 F.3d 359"] (6th Cir. 2014) (clarifies first/second Gaubert prongs and that not all failure-to-warn claims are categorically discretionary)
- Terbush v. United States, [citation="516 F.3d 1125"] (9th Cir. 2008) (NPS manual guidance held non-mandatory; discretion preserved)
- Riley v. United States, [citation="486 F.3d 1030"] (8th Cir. 2007) (guidance manuals that permit flexibility are discretionary)
- Jude v. Comm'r of Soc. Sec., [citation="908 F.3d 152"] (6th Cir. 2018) (statutory silence on timing can leave an element of judgment and satisfy Gaubert first prong)
- Myers v. United States, [citation="17 F.3d 890"] (6th Cir. 1994) (if antecedent assessment requires judgment, mandatory-then steps may still be discretionary)
- Reed v. United States, [citation="426 F. Supp. 3d 498"] (E.D. Tenn. 2019) (similar analysis concluding some FMP provisions are mandatory; court followed its reasoning)