Federal Tort Claims Act (FTCA); 28 USC § 1346(b); Sovereign immunity under the discretionary-function exception to the FTCA (§ 2680(a)); United States v Gaubert; Failure to follow a mandatory Incident Command System’s (ICS) command structure in response to a wildfire in a national park; The Wildland Fire Decision Support System (WFDSS); “Duty to warn” claim; Abbott v United States; Fire Management Officer (FMO); Department of Interior (DOI); National Parks Service (NPS); Fire Monitoring Handbook (FMH)

The court held, among other things, that an NPS’s employee’s (the FMO) failure to follow the mandatory ICS’s command structure when fighting the 2016 Great Smokey Mountains National Park (GSM) fire was not protected by the FTCA’s discretionary exception. After the wildfire, which spread into the City of Gatlinburg, Tennessee, plaintiffs-insurance companies (who had paid policyholder claims arising from the fire) sued the NPS under the FTCA alleging negligence for failing to follow multiple mandatory fire-management protocols and failing to issue public mandatory warnings. The district court dismissed the claims relating to fire-management protocols under the discretionary-function exception but declined to dismiss the claims based on failure to warn. Both sides appealed. The court noted that a “two-part test determines if the discretionary-function exception applies.” The test is conjunctive – “‘[i]f the actions are either non-discretionary or discretionary but unprotected, the government is not entitled to sovereign immunity.’” The court concluded the existence of “‘specific marching orders’” in this case distinguished “the command-structure claims here from fire-suppression cases where courts have held that the discretionary-function exception protects fire-suppression efforts of the government from FTCA waiver of sovereign immunity.” In contrast to those cases, “using the ICS and following chain of command is not a discretionary firefighting technique.” The court found that the FMO’s “failure to use the required incident-command structure is not the type of decision or conduct protected by the discretionary-function doctrine. The DOI policy decision to require use of the ICS and incident-command structure in fighting all wildland fires did not leave [the FMO] with any choice to take an alternative course of action. [He] thus violated the mandatory incident-command system requirements, so the discretionary-function exception does not apply.” As to plaintiffs’ fire-monitoring claim, GSM had adopted the FMH. The court found the FMO “had the discretion to decide how to deploy resources to fight the Fire” and that both parts of the Gaubert test were satisfied. It also agreed with the district court’s dismissal of the WFDSS claims where unlike “the ICS command structure, WFDSS involves decisions that directly related to firefighting strategies and tactics.” These decisions “involve social and economic considerations that the discretionary-function exemption is designed to protect.” Lastly, the court held that plaintiffs’ duty-to-warn claims survived the government’s facial challenge. Thus, it reversed the dismissal of plaintiffs’ incident-command claim but affirmed (1) the “dismissal of the fire-monitoring claim and the WFDSS claim as part of the discretionary fire-suppression decision-making process” and (2) the “denial of the government’s facial challenge to” the duty-to-warn claims. Remanded.