992 F.3d 878
9th Cir.2021Background
- Miller was a Reno-Sparks Indian Colony police officer employed under a 2005 ISDA self-determination contract with the BIA that deems tribal officers federal employees for FTCA coverage.
- Miller alleged workplace discrimination and harassment, an improper extension/reinstatement of probation, and was terminated for alleged unemployment-fraud (which he says was identity theft).
- He exhausted administrative FTCA pre-filing requirements; Interior denied his administrative claim; he sued the United States under the FTCA asserting Nevada wrongful-termination and related tort claims.
- The Tribe’s Contract, 25 C.F.R. Part 12, and the BIA Law Enforcement Handbook impose investigatory and reporting procedures (including mandatory reporting to the Professional Standards Division/PSD under 25 C.F.R. § 12.53).
- The district court dismissed all claims as barred by the FTCA discretionary function exception (28 U.S.C. § 2680(a)) and denied leave to amend; the Ninth Circuit affirmed in part, reversed in part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FTCA discretionary-function exception bars Miller's retaliation-based wrongful-termination claims | Miller: Contract, BIA policies, and Handbook limit discretion and prohibit retaliation; thus claims not barred | US: Termination/substantive firing decisions are discretionary employment decisions; no federal rule specifically proscribes tribal retaliation | Held: Affirmed — discretionary-function exception bars the retaliation-based claims (first & second causes of action) |
| Whether the discretionary-function exception bars Miller's procedural/process-based tortious-discharge claim (failure to follow mandatory investigatory/reporting procedures) | Miller: Contract, 25 C.F.R., and Handbook impose mandatory reporting/investigation requirements (e.g., PSD reporting) so Tribe lacked discretion to ignore them | US: Process and investigation decisions are discretionary and tied to policy considerations | Held: Reversed — procedural claim is not barred because mandatory regulatory/Handbook duties (e.g., reporting to PSD) remove discretion |
| Whether the discretionary-function exception justified denial of leave to amend to add negligence and gross-negligence claims based on DETR evidence that the Tribe knew of identity theft | Miller: DETR notation showed Tribe knew claim was likely identity theft; Handbook forbids disciplining when allegations are exonerated, so firing on known-false grounds was non-discretionary | US: New negligence claims likewise barred by discretionary-function exception | Held: Reversed — proposed negligence/gross-negligence claims not barred by the discretionary-function exception; leave to amend improperly denied |
| Whether bad-faith/intentional-tort carve-outs under state law (Hyatt) apply to defeat the FTCA discretionary-function exception | Miller relied on Hyatt to argue intentional/bad-faith acts are excluded from discretionary immunity | US: FTCA analysis governed by federal law; Gaubert rejects a categorical carve-out for bad-faith/intentional torts | Held: Court rejected Hyatt-style categorical carve-out under the FTCA; bad faith does not automatically defeat the discretionary-function exception |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (establishes two-part discretionary-function test and policy-based inquiry)
- Berkovitz v. United States, 486 U.S. 531 (framework for determining discretionary-function coverage)
- Sabow v. United States, 93 F.3d 1445 (application of discretionary-function test to investigatory directives)
- Vickers v. United States, 228 F.3d 944 (holding mandatory investigatory duties can defeat discretionary-function immunity)
- Sydnes v. United States, 523 F.3d 1179 (employment/termination decisions typically discretionary)
- Broidy Capital Mgmt., LLC v. State of Qatar, 982 F.3d 582 (discretionary-function exception cannot be overcome by conduct specifically proscribed by law)
- Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250 (context on ISDA/self-determination contracts and federal funding)
- Bailey ex rel. Estate of Bailey v. United States, 623 F.3d 855 (agency lacks discretion when a statute or policy imposes a mandatory, specific duty)