426 F.Supp.3d 498
E.D. Tenn.2019Background
- The Chimney Tops 2 wildfire (Nov. 2016) in Great Smoky Mountains National Park spread to Gatlinburg; plaintiffs sued the United States under the FTCA for property loss and deaths, alleging NPS negligence.
- Plaintiffs’ complaint alleged many operational failures (monitoring, command structure, containment, air operations, communications) but at oral argument plaintiffs abandoned all claims except the failure-to-warn claim.
- Defendant moved to dismiss for lack of subject-matter jurisdiction, invoking the FTCA discretionary function exception (28 U.S.C. § 2680(a)).
- The court analyzed jurisdiction under the Supreme Court’s Gaubert two‑prong discretionary-function test: (1) whether a statute/regulation is mandatory and (2) whether the conduct involves policy judgment.
- Plaintiffs relied on the Park’s Fire Management Plan (FMP) and Director’s Order 18 (DO 18) as mandatory directives requiring notice to park neighbors; the government argued both are guidance and leave timing/method to discretion.
- Court held DO 18 is guidance (non‑mandatory) but concluded specific provisions of the FMP (Section 3.3.2 and Table 13) impose mandatory notification duties, so the discretionary-function exception did not bar jurisdiction; motion to dismiss denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discretionary-function exception bars the failure-to-warn FTCA claim | Reed: FMP/DO 18 impose mandatory duties to notify neighbors, so exception does not apply | U.S.: FMP and DO 18 are guidance; warnings and timing remain discretionary | Court: Exception does not apply to failure-to-warn claim because FMP contains mandatory directives |
| Whether DO 18 is mandatory | Reed: DO 18 emphasizes safety and imposes duties | U.S.: DO 18 expressly frames itself as principles/guidelines, not enforceable mandates | Court: DO 18 is guidance, not mandatory |
| Whether FMP provisions cited are mandatory | Reed: §3.3.2 and Table 13 require notification of park neighbors and specific mitigation/notification actions | U.S.: FMP expresses goals and affords officials discretion on when/how to notify | Court: §3.3.2 and Table 13 are mandatory as to notifying park neighbors and thus defeat first prong of Gaubert |
| Whether plaintiffs abandoned other negligence claims | Reed: at argument plaintiffs confirmed they were only pursuing failure-to-warn | U.S.: noted plaintiffs’ concession narrowed the case | Court: Plaintiffs abandoned all non-warning negligence claims; dismissal as to those claims is moot |
Key Cases Cited
- Gaubert v. United States, 499 U.S. 315 (1991) (establishes two‑prong test for discretionary-function exception)
- Berkovitz v. United States, 486 U.S. 531 (1988) (discretion involves judgment or choice; mandatory directives remove discretion)
- A.O. Smith Corp. v. United States, 774 F.3d 359 (6th Cir. 2014) (warning decisions not categorically discretionary; analyze specific regulatory language)
- Rosebush v. United States, 119 F.3d 438 (6th Cir. 1997) ("practicable" language requires discretion; courts look to specificity of directive)
- Myers v. United States, 17 F.3d 890 (6th Cir. 1994) (if/then regulatory structure can preserve discretion under Gaubert)
- Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392 (6th Cir. 2004) (general duties like "protect" are often insufficiently specific)
- United States v. Sherwood, 312 U.S. 584 (1941) (sovereign immunity principle: U.S. may not be sued without consent)
- Sharp ex rel. Estate of Sharp v. United States, 401 F.3d 440 (6th Cir. 2005) (if discretionary-function exception applies, court lacks FTCA jurisdiction)