UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN MILLER, No. 19-15122 Plaintiff-Appellant, D.C. No. v. 3:17-cv-00121- MMD-WGC UNITED STATES OF AMERICA, Defendant-Appellee. OPINION

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted April 29, 2020 San Francisco, California

Filed March 26, 2021

Before: Ronald Lee Gilman, * Susan P. Graber, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins

* The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 MILLER V. UNITED STATES

SUMMARY **

Federal Tort Claims Act

The panel affirmed in part and reversed in part the district court’s dismissal of plaintiff’s wrongful termination action as barred by the Federal Tort Claims Act’s discretionary function exception, and remanded the case for further proceedings.

Plaintiff alleged claims arising from his termination as a police officer with the Reno-Sparks Indian Colony, a federally-recognized Indian Tribe. The Tribe manages its police force through a contract with the Bureau of Indian Affairs (“BIA”), and that contract designates the Tribe’s police officers as Federal Government employees for purposes of tort liability. The district court dismissed the action on the sole ground that all of plaintiff’s claims were barred by the Federal Tort Claims Act’s discretionary function exception and that the court therefore lacked subject matter jurisdiction.

The panel first addressed plaintiff’s claims that his termination was undertaken in retaliation for his having complained about workplace discrimination and harassment. In determining whether the discretionary function exception barred these claims, the panel applied the two-part test set forth in United States v. Gaubert, 499 U.S. 315 (1991), and Berkovitz v. United States, 486 U.S. 531 (1988). First, concerning whether the act or omission on which the claim was based “involves an element of judgment or choice,” the

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MILLER V. UNITED STATES 3 panel held that plaintiff’s first two causes of action were based upon the exercise of judgment or choice by the Tribe and therefore the first element of the Gaubert-Berkovitz test was met as to these claims. Specifically, the panel held that plaintiff’s reliance on rules governing the procedure for making the termination decision did not establish an applicable federal statute, regulation, or policy that specifically proscribed a retaliatory action by the Tribe. Second, concerning whether the judgment was of the kind that the discretionary function exception was designed to shield, the panel rejected plaintiff’s contention that his allegations of intentional torts and bad-faith conduct sufficed to defeat the discretionary function exception because such acts were not the product of any plausible objective. The panel held that there was no categorical carve-out at the second step of the test for “bad faith” or “intentional” torts. Because both elements of the Gaubert-Berkovitz test were satisfied, the discretionary function exception barred plaintiff’s two retaliation-based wrongful termination claims.

The panel next addressed whether the discretionary function exception also barred plaintiff’s third