Paul Abbott v. United States, 78 F.4th 887

Background:

Chimney Tops 2 Fire started in Great Smoky Mountains National Park on Nov. 23, 2016; under-staffed Park response over Thanksgiving left Fire Management Officer Greg Salansky managing multiple roles.
Fire escaped park bounds by Nov. 28, 2016, causing 14 deaths, many injuries, thousands of damaged/destroyed structures, and widespread evacuations.
Hundreds of victims submitted SF‑95 administrative claims to the Department of the Interior alleging the NPS failed to follow mandatory fire-management rules (monitoring/extinguishing) and failed to warn neighbors; the agency did not act within six months.
District court dismissed plaintiffs’ suits for lack of subject‑matter jurisdiction, concluding the SF‑95s did not present failure‑to‑warn claims under 28 U.S.C. § 2675(a); the court also considered FTCA exceptions (discretionary‑function, misrepresentation) in multiple motions.
Sixth Circuit vacated and remanded: it held the SF‑95s provided the “minimal notice” required to enable investigation of failure‑to‑warn claims (given overlapping facts and the same actors), and directed the district court to further develop factual record on the discretionary‑function issue (whether Fire Management Plan provisions were mandatory and whether NPS complied).

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether SF‑95s satisfied FTCA presentment (§ 2675(a))	SF‑95s gave written notice of the incident and damages and enabled investigation into failure‑to‑warn as part of the same course of conduct	SF‑95s only alleged failure to monitor/extinguish, not failure‑to‑warn; thus no presentment of that claim	Vacated dismissal; SF‑95s provided minimal notice sufficient to enable investigation of failure‑to‑warn given overlapping operative facts and common actors (Salansky)
Whether the presentment requirement is jurisdictional / waivable	Presentment is not jurisdictional and can be waived/estopped by government communications	Presentment is jurisdictional (Garrett) and not subject to waiver or estoppel	Court did not decide; avoided the question because presentment was satisfied on the facts
Applicability of FTCA discretionary‑function exception (28 U.S.C. § 2680(a))	Fire Management Plan (Section 3.3.2 and Table 13) impose mandatory duties to assess and notify, so the exception does not apply	NPS decisions were discretionary and choices about warnings and firefighting are policy‑based; factual record shows compliance in some respects	Remanded for factual development: district court should determine whether those FMP provisions are mandatory, whether antecedent assessments were made, and then, if needed, apply Gaubert’s second prong
Applicability of FTCA misrepresentation exception (28 U.S.C. § 2680(h))	Claims sound in negligence (failure to warn), not misrepresentation	Government argued misrepresentation exception might bar claims; also raised on appeal that plaintiffs alleged no state‑law duty separate from federal rules	Court declined to affirm on this basis; agreed claims sound in negligence and refused to consider new misrepresentation argument raised first on appeal

Key Cases Cited

United States v. Gaubert, 499 U.S. 315 (1991) (establishes two‑part discretionary‑function test)
Berkovitz v. United States, 486 U.S. 531 (1988) (framework for mandatory vs. discretionary conduct under FTCA)
Myers v. United States, 17 F.3d 890 (6th Cir. 1994) (antecedent assessment creates discretionary choice; if predicate exists subsequent duties may be mandatory)
Knapp v. United States, 844 F.2d 376 (6th Cir. 1988) (§ 2675(a) requires only minimal notice)
Glarner v. United States, 30 F.3d 697 (6th Cir. 1994) (presentment requires written notice sufficient to enable investigation and a sum certain)
Roma v. United States, 344 F.3d 352 (3d Cir. 2003) (distinguishable: narrow SF‑95 facts cannot support different, broader claims based on different actors)
A.O. Smith Corp. v. United States, 774 F.3d 359 (6th Cir. 2014) (protocols may be mandatory as to whether they’re implemented while discretionary as to how/when)
S.A. Empresa de Viacao Aerea Rio Grandense v. Varig Airlines, 467 U.S. 797 (1984) (discretionary‑function exception prevents judicial second‑guessing of policy‑grounded administrative decisions)
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishes jurisdictional rules from claim‑processing rules; Court noted in opinion regarding § 2675’s possible non‑jurisdictional character)
Kohl v. United States, 699 F.3d 935 (6th Cir. 2012) (discusses Gaubert second prong; exception protects policy‑susceptible choices)
Rosebush v. United States, 119 F.3d 438 (6th Cir. 1997) (regulatory language ‘‘to the extent practicable’’ shows protected discretion)