John Miller v. United States

FOR PUBLICATION

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 cause of
action alleging that his termination was wrongful because it
was the result of a process that did not adhere to the
procedural requirements of the contract between the Tribe
and the BIA and other relevant provisions. The panel
applied the standards set forth in Sabrow v. United States,
93 F.3d 1445 (9th Cir. 1996), and Vickers v. United States,
228 F.3d 944 (9th Cir. 2000), to identify the relevant federal
regulations and policy documents that constrained the
Tribe’s behavior, and then determined whether they
contained mandatory requirements that the Tribe allegedly
breached in its handling of plaintiff’s employment situation.
The panel held that the first element of the Gaubert-
4 MILLER V. UNITED STATES

Berkovitz test was not met as to this claim, and the Federal
Tort Claims Act’s discretionary function exception did not
apply. As a result, the district court erred in concluding that
plaintiff’s third cause of action was barred.

The panel held the district court erred in concluding that
the discretionary exception function barred the two
additional claims plaintiff sought to raise in the Third
Amended Complaint. Plaintiff’s two new claims alleged,
respectively, that the Tribe was negligent and grossly
negligent in terminating him. Because these claims rested
on a failure to follow the mandatory requirements prescribed
in the BIA Handbook, the first element of the Gaubert-
Berkovitz test was not met and the discretionary function
exception did not apply. The panel concluded that the
district court erred in denying leave to amend to assert these
new claims.

COUNSEL

Scott W. Souers (argued), Alling & Jillson Ltd., Lake Tahoe,
Nevada, for Plaintiff-Appellant.

Holly Ann Vance (argued), Assistant United States
Attorney; Elizabeth O. White, Appellate Chief; Nicholas A.
Trutanich, United States Attorney; United States Attorney’s
Office, Reno, Nevada; for Defendant-Appellee.
 MILLER V. UNITED STATES 5

OPINION

COLLINS, Circuit Judge:

John Miller appeals the district court’s dismissal of his
operative complaint, which alleges various causes of action
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. As a result, Miller’s
claims are governed by the Federal Tort Claims Act
(“FTCA”), and the United States is the sole defendant. The
district court held that all of Miller’s claims were barred by
the FTCA’s discretionary function exception, 28 U.S.C.
§ 2680(a), and the court denied leave to amend as futile.
Reviewing de novo, Bibeau v. Pacific NW Research Found.,
Inc., 339 F.3d 942, 944 (9th Cir. 2003), we affirm in part,
reverse in part, and remand the case for further proceedings.

I

A

The Reno-Sparks Indian Colony is a federally
recognized Indian Tribe in northwest Nevada. See 86 Fed.
Reg. 7554, 7556 (Jan. 29, 2021). In 2005, pursuant to § 102
of the Indian Self-Determination Act (“ISDA”), 25 U.S.C.
§ 5321, the Tribe entered into a “self-determination
contract” with the BIA governing tribal law-enforcement
services (“the Contract”). Such contracts under the ISDA
allow a tribe to perform tasks that would otherwise have
been carried out by the Federal Government and to do so
using “money that the Government would have otherwise
spent on the program.” Menominee Indian Tribe v. United
6 MILLER V. UNITED STATES

States, 577 U.S. 250, 252 (2016). The Tribe and the BIA
ratified the Contract on a multi-year basis, and it was in
effect at all relevant times here. Although the Contract states
that the Tribe shall “perform all tribal law services on the
Reno-Sparks Indian Colony,” its provisions concerning
“Tort Claims” specify that, “[f]or the purpose of Federal Tort
Claims Act Coverage, the [Tribe] and its employees . . . are
deemed to be employees of the Federal government while
performing work under this contract.”

Under the auspices of the Contract, the Tribe employed
Miller as a law-enforcement officer from June 27, 2013 until
his termination on August 22, 2014. When he began his
employment, Miller was subject to a 90-day introductory
probationary period, and upon his successful completion of
this period, he became a regular, full-time employee. Miller
alleges that, starting in January 2014, his “colleagues and
superiors subjected him to workplace discrimination and
harassment regarding his race, sex, perceived sexual
orientation, and temporary physical disabilities.” In
particular, Miller contends that Sergeant Lance Avansino
subjected him to harassment based on Miller’s being “the
wrong color of skin” and Avansino’s perception that Miller
was gay. In April and May 2014, Miller complained about
this discrimination and harassment to the Tribe’s Chief of
Police, Darrell Bill, but without success.

On June 26, 2014, Sergeant Avansino informed Miller
during a performance review that Avansino was extending
Miller’s probationary period until December 27, 2014.
When Miller complained that he had already completed the
90-day probationary period, Avansino responded that a
previous Acting Chief of Police had adopted a one-year
probationary policy that superseded the standard 90-day
probationary period applicable under the Tribe’s general
 MILLER V. UNITED STATES 7

human-resources policies. Later that day, after the
performance review meeting, Miller sent Avansino an email
requesting a copy of the alleged one-year probationary
policy. Miller was never provided with such a copy, and he
denies that any such policy existed.

Miller scheduled a meeting on July 14, 2014 with Chief
Bill to discuss both the alleged harassment and the allegedly
unauthorized probation reinstatement, but Bill did not come
to the scheduled appointment. Shortly thereafter, Miller
submitted a formal workplace discrimination claim to Tribal
Administrator Gerald Smith, but no action was taken in
response. Miller also filed an administrative appeal of
Avansino’s reinstatement of probation, but the Tribe later
denied his request to appeal.

On August 25, 2014, the Tribe mailed Miller a letter
notifying him that it was terminating him for cause on the
ground that he had allegedly filed a fraudulent
unemployment claim with the Nevada Unemployment
Office on August 14, 2014. The termination letter stated that
Miller’s alleged fraudulent unemployment claim was a clear
violation of the Tribe’s written Code of Ethics and that it
provided grounds for immediate termination. Miller
informed the Tribe that he had not filed the unemployment
claim and that he had been the victim of identity theft.

Miller promptly filed an administrative appeal of his
termination. Three days later, Miller met with Chief Bill,
Sergeant Avansino, and another officer concerning his
appeal, but to no avail. An Appeals Committee upheld his
termination in October 2014.
8 MILLER V. UNITED STATES

B

In June 2015, Miller filed a formal charge of
discrimination with the Nevada Equal Rights Commission
and the U.S. Equal Employment Opportunity Commission
(“EEOC”), but the EEOC concluded that, in light of the
involvement of an Indian Tribe, it had no jurisdiction over
the matter. Cf. Snyder v. Navajo Nation, 382 F.3d 892, 896–
97 (9th Cir. 2004); EEOC v. Karuk Tribe Hous. Auth.,
260 F.3d 1071, 1082 (9th Cir. 2001).

Miller thereafter filed an administrative wrongful
termination claim with the Department of the Interior, in
accordance with the pre-filing requirements of the FTCA.
See 28 U.S.C. § 2675(a). Miller’s administrative claim
alleged that he had been the “victim of continuous
employment harassment” by Chief Bill and Sergeant
Avansino and that he consequently had filed a “workplace
harassment complaint” with the Tribe. But because he “was
considered a ‘problem child,’” Miller alleged, the Tribe
instead terminated him on the pretextual ground that he had
committed unemployment fraud. In fact, Miller asserted, the
fraudulent unemployment claim was the result of identity
theft, and the Tribe therefore effectively “punished [him] for
being the victim of a crime.” Miller’s administrative claim
also alleged that, before terminating him, the Tribe had
failed to provide Miller with the sort of investigation
“guaranteed to [him] by department policy and procedures.”
Had those procedures been followed, Miller contended, his
innocence of the unemployment-fraud allegation would
have been confirmed, and that “would have allowed [him] to
maintain [his] employment[,] reputation and financial
stability.” In support of this assertion, Miller’s claim
referenced a December 2015 letter from the Nevada
Department of Employment, Training & Rehabilitation
 MILLER V. UNITED STATES 9

(“DETR”) absolving him of unemployment fraud. 1 The
Department of the Interior ultimately sent Miller a letter
notifying him that it had denied his claim and informing him
of his right to file suit in federal court.

On February 24, 2017, Miller filed suit against the
United States under the FTCA. Alleging facts comparable
to those set forth above, Miller’s operative Second Amended
Complaint asserted three wrongful termination causes of
action under Nevada law against the United States. The
Government moved to dismiss, but before the district court
ruled on the motion, Miller sought leave to file a Third
Amended Complaint. Miller premised his motion on “newly
discovered facts” that he said showed that, at the time the
Tribe upheld his termination, it already knew that he had
been the victim of identity theft. Specifically, Miller had
obtained a document from DETR suggesting that on
September 5, 2014—after the Tribe had terminated him but
before the Appeals Committee upheld that termination—
DETR had notified the Tribe that the alleged fraudulent
unemployment claim was a case of identity theft. The DETR
document, which Miller attached to his proposed Third
Amended Complaint, contained a brief notation stating that,
1
Specifically, DETR stated in its letter that it had “determined that
a person other than [Miller] appears to have obtained [his] personal
identifying information and created this [unemployment] claim without
[his] knowledge.” As the letter explained:

This claim shows hallmarks of having been involved
in a large identity theft ring having roots in Florida.
While the person or persons who filed the claim have
not been apprehended and prosecuted and therefore
there is no firm proof of identity theft, the
circumstances indicate that you were not involved in
filing this claim and are a victim of identity theft in this
instance.
10 MILLER V. UNITED STATES

on “09/05/2014,” DETR “[a]dvised Reno Sparks Indian
Colony that claim was hijack in ID Theft case.” In light of
this additional information, Miller sought leave to assert two
new causes of action—negligence and gross negligence.

The district court dismissed the Second Amended
Complaint, concluding that all of the claims were barred by
the discretionary function exception. The court held that the
same would be true of the additional claims contained in
Miller’s proposed Third Amended Complaint, and the court
therefore denied his motion for leave to amend. Because
none of the other issues raised by the Government’s motion
to dismiss would alter these conclusions, the court declined
to address them. Miller timely appealed.

II

All of Miller’s claims in the operative Second Amended
Complaint rest exclusively on the FTCA. Miller properly
invokes the FTCA, because the Tribe’s Contract with the
BIA specifies that, “[f]or the purpose of Federal Tort Claims
Act Coverage,” the Tribe and its employees “are deemed to
be employees of the Federal government while performing
work under this contract.” Thus, subject to the various
limitations and exceptions set forth in the FTCA, the United
States is liable in tort, to the same extent as a “private
person,” “for money damages . . . for injury or loss of
property, or personal injury or death caused by the negligent
or wrongful act or omission” of any tribal employee “while
acting within the scope of his [or her] office or employment”
in performing work under the Contract. 28 U.S.C.
§ 1346(b)(1); see also id. § 2674.

The applicable substantive rules of tort law for claims
under the FTCA are supplied by “the law of the place where
the act or omission occurred,” id. § 1346(b)(1), which all
 MILLER V. UNITED STATES 11

parties, and we, agree is Nevada. Two of Miller’s Nevada-
law claims challenge the substance of the termination
decision. His first claim for “retaliatory discharge” falls
under the rubric of Nevada’s cause of action for “tortious
discharge.” See D’Angelo v. Gardner, 819 P.2d 206, 216
(Nev. 1991) (“The essence of a tortious discharge is the
wrongful, usually retaliatory, interruption of employment
by means which are deemed to be contrary to the public
policy of this state.” (emphasis added)). The gravamen of
this claim is that Miller’s “protected activity” in complaining
about workplace discrimination “was a motivating factor in
the adverse employment action.” His second cause of action
for “bad faith” wrongful termination similarly alleges that
the Tribe acted in bad faith when it fired Miller “for reporting
his superiors’ conduct of workplace discrimination and
harassment.” By contrast, Miller’s third cause of action,
which is also for “tortious discharge” in violation of public
policy, relies primarily on the theory that the process by
which the termination decision was made was deficient. 2
Specifically, this claim alleges that, in the process leading up
to Miller’s termination, the Tribe denied him “his procedural
rights” as set forth in the Contract and other applicable
provisions.

The district court dismissed the action on the sole ground
that all of Miller’s claims were barred by the FTCA’s
discretionary function exception and that the court therefore
lacked subject matter jurisdiction. See Sabow v. United
States, 93 F.3d 1445, 1451 (9th Cir. 1996) (“Where the

2
This third cause of action briefly alleges, in the alternative, that
Miller’s termination also tortiously violated public policy to the extent
that it was motivated by retaliation. Because this alternative aspect of
Miller’s third claim is entirely duplicative of his first cause of action, we
disregard it.
12 MILLER V. UNITED STATES

discretionary function exception to the FTCA applies, no
federal subject matter jurisdiction exists.”). As applicable
here, the discretionary function exception bars liability
against the United States for any of Miller’s claims that are
“based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of” a tribal employee, “whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a). The district court
held that the Tribe’s “ultimate decision . . . whether to fire”
Miller was “discretionary” within the meaning of this
exception and that, because all of Miller’s claims rested on
that termination, the action had to be dismissed. The district
court explicitly rejected Miller’s argument that, because his
distinct procedural challenge to his termination rested on the
Tribe’s failure to follow “mandatory BIA and Tribe
procedures,” that challenge therefore fell outside the
discretionary function exception.

We agree with the district court that, to the extent that
Miller’s claims alleged that the Tribe’s decision to fire him
was retaliatory, those claims are barred by the discretionary
function exception. But the district court erred in concluding
that Miller’s procedural challenge to his termination stood
on the same footing, and we therefore reverse its dismissal
of Miller’s third cause of action.

A

We begin by addressing Miller’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
bars these claims, we apply 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). Under that test, the
exception applies if (1) the act or omission on which the
 MILLER V. UNITED STATES 13

claim is based “involves an element of judgment or choice”;
and (2) “that judgment is of the kind that the discretionary
function exception was designed to shield.” Berkovitz,
486 U.S. at 536; see also Gaubert, 499 U.S. at 322–23.
Applying these standards, we conclude that the discretionary
function exception bars Miller’s claims that the Tribe’s
decision to terminate him was impermissibly retaliatory.

1

The first element of the Gaubert-Berkovitz test reflects
the obvious fact that, under the plain text of the statute, the
“exception covers only acts that are discretionary in nature.”
Gaubert, 499 U.S. at 322 (emphasis added). The concept of
discretion connotes a “choice” among various options, and
therefore the exception cannot apply if the employee in
question was “bound to act in a particular way.” Id. at 329.
Thus, if an applicable “‘federal statute, regulation, or policy
specifically prescribes a course of action,’” then the
“requirement of judgment or choice is not satisfied,” because
“‘the employee has no rightful option but to adhere to the
directive.’” Id. at 322 (emphasis added) (quoting Berkovitz,
486 U.S. at 536). Similarly, if the particular option chosen
by the employee is “specifically proscribed by applicable
law,” then the “discretionary function exception does not
apply.” Broidy Cap. Mgmt., LLC v. State of Qatar, 982 F.3d
582, 591 (9th Cir. 2020); see also Nurse v. United States,
226 F.3d 996, 1002 (9th Cir. 2000) (“In general,
governmental conduct cannot be discretionary if it violates a
legal mandate.”).

“This court and others have held that decisions relating
to the hiring, training, and supervision of employees usually
involve policy judgments of the type Congress intended the
discretionary function exception to shield.” Vickers v.
United States, 228 F.3d 944, 950 (9th Cir. 2000) (emphasis
14 MILLER V. UNITED STATES

added) (collecting cases). Our recognition that “hiring”
decisions involve the requisite element of judgment or
choice necessarily means that the correlative decision to fire
an employee is likewise one that, as a general matter,
quintessentially involves a choice among options. See
Sydnes v. United States, 523 F.3d 1179, 1184 (10th Cir.
2008). Given that the Tribe’s termination decision would
thus ordinarily be deemed discretionary, Miller had the
burden to identify a “federal statute, regulation, or policy”
that constrained the Tribe’s substantive discretion in a way
that precludes applying the discretionary function exception
here. Berkovitz, 486 U.S. at 536 (emphasis added); see also
Sydnes, 523 F.3d at 1184. 3 He failed to do so.

In addressing this issue, we note at the outset that Tribes
are expressly excluded from coverage under the relevant
laws that would preclude a private employer or a federal
agency from doing what the Tribe allegedly did here. See,
e.g., 42 U.S.C. § 2000e-3(a) (Title VII provision barring
retaliation against employee for asserting discrimination
claim); id. § 2000e(b) (excluding “an Indian tribe” and the
“United States” from Title VII’s definition of “employer”);
id. § 2000e-16(a) (generally extending protection against

3
As this passage from Berkovitz reflects, a plaintiff cannot rely on
the premise that state law “specifically prescribes a course of action for
an employee to follow,” 486 U.S. at 536, except perhaps to the extent
that “a federal policy incorporating state tort law” limits “the discretion
of federal employees within the meaning of the FTCA,” Sydnes,
523 F.3d at 1184. Under the FTCA, state tort law is applied to the
employee’s conduct only after the federal discretionary function
exception has been determined not to apply. See id. (noting that a
contrary approach would “put the cart before the horse”). Indeed, there
would be little, if anything, left to the discretionary function exception if
it could be defeated by the very state tort law sought to be applied under
the FTCA.
 MILLER V. UNITED STATES 15

“discrimination based on race, color, religion, sex, or
national origin” to federal employees); see also Ayon v.
Sampson, 547 F.2d 446, 450 (9th Cir. 1976) (“Congress
incorporated the protections against retaliation in its
enactment of § 2000e-16.”). While the Contract states that
tribal employees such as Miller are deemed employees of the
Federal Government “[f]or the purpose of Federal Tort
Claims Act Coverage” (emphasis added), Miller has not
contended that the Contract makes him an employee of the
Federal Government for purposes of any such
antidiscrimination statute or any other federal statute.
Instead, in arguing that the Tribe lacked discretion here,
Miller relies only on the Contract itself, federal regulations
governing such contracts, and other BIA policies. 4

Miller’s primary contention is that the Tribe denied him
various procedural rights that were afforded by the Contract
and relevant federal regulations. These procedural rights,
however, are not relevant to his claims challenging the
substance of the Tribe’s choice to terminate him. The
applicability of the discretionary function exception to a
particular “claim” turns on what it is “based upon” and
whether that specific wrongful action involves “a
discretionary function or duty.” 28 U.S.C. § 2680(a).
“Although the [FTCA] contains no definition of the phrase
‘based upon,’ the Supreme Court has held that the phrase is
read most naturally to mean those elements of a claim that,
if proven, would entitle a plaintiff to relief under his or her
theory of the case.” Broidy, 982 F.3d at 593–94 (simplified)
(addressing the comparable phrase “based upon” in the

4
In his briefs in this court, Miller likewise has not contended that
we should consider tribal law as a source of limits on the Tribe’s
discretion for purposes of applying the FTCA’s discretionary function
exception. Therefore, we do not address that question.
16 MILLER V. UNITED STATES

Foreign Sovereign Immunities Act). Miller’s first two
causes of action are both based on the theory that the Tribe
improperly retaliated against him for having complained
about discrimination and harassment. See supra at 10–11.
Consequently, a retaliatory action is an element of these two
torts as pleaded by Miller. Thus, to defeat the discretionary
function exception as to these retaliation-based claims,
Miller must, inter alia, point to some applicable federal
statute, regulation, or policy that specifically proscribes such
a retaliatory action by the Tribe. Miller’s reliance on rules
governing the procedure for making the termination decision
does not establish such a proscription.

Miller also claims that the Tribe is subject to the BIA’s
“Law Enforcement Handbook” and that this Handbook
contains a provision stating that “[e]mployees may not be
disciplined for allegations deemed unfounded, exonerated,
or not sustained, and information from these investigations
may not be placed in the employee’s personnel file.” But
this provision does not “specifically proscribe[]” retaliation,
see Broidy, 982 F.3d at 591 (emphasis omitted), which is
what Miller’s first two causes of action are “based upon.”
See supra at 15–16. This provision thus fails to establish that
the Tribe’s retaliatory termination decision was not
discretionary. See Sydnes, 523 F.3d at 1184 (similarly
concluding that alleged retaliatory termination of employee
of civilian contractor was discretionary because the
regulations that plaintiff contended limited the agency’s
discretion “do not purport to preclude retribution by
officials”).

Accordingly, we conclude that Miller’s first two causes
of action are “based upon” the exercise of “judgment or
choice” by the Tribe and that the first element of the
 MILLER V. UNITED STATES 17

Gaubert-Berkovitz test is met as to these claims. See
Gaubert, 499 U.S. at 322.

2

The second element of the Gaubert-Berkovitz test
reflects a recognition that an element of judgment or choice
is not enough to warrant application of the discretionary
function exception and that the judgment involved must be
“of the kind that the discretionary function exception was
designed to shield.” Berkovitz, 486 U.S. at 536. After all,
“driving requires the constant exercise of discretion,” but an
“official’s decisions in exercising that discretion can hardly
be said” to be the sort that the exception was intended to
protect. Gaubert, 499 U.S. at 325 n.7 (emphasis added).
“Because the purpose of the exception is to prevent judicial
‘second-guessing’ of legislative and administrative
decisions grounded in social, economic, and political policy
through the medium of an action in tort,” the exception,
“properly construed,” “protects only governmental actions
and decisions based on considerations of public policy.” Id.
at 323 (simplified) (emphasis added). The inquiry is an
objective one: what matters is not whether the employee’s
“subjective intent in exercising the discretion conferred by
statute or regulation” was actually based on policy
considerations, but whether the actions taken by the
employee “are susceptible to policy analysis.” Id. at 325
(emphasis added); see also Gonzalez v. United States,
814 F.3d 1022, 1032 (9th Cir. 2016) (“[W]e examine the
nature of the Government’s action—or in this case,
omission—and decide whether it is susceptible to policy
analysis under an objective assessment.” (simplified));
Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998)
(“The decision need not be actually grounded in policy
18 MILLER V. UNITED STATES

considerations, but must be, by its nature, susceptible to a
policy analysis.”).

As noted earlier, we have regularly concluded that
“decisions relating to the hiring, training, and supervision of
employees usually involve policy judgments of the type
Congress intended the discretionary function exception to
shield.” Vickers, 228 F.3d at 950; see also Nurse, 226 F.3d
at 1001 (holding that “policy-making defendants’ allegedly
negligent and reckless employment, supervision and
training” of customs agents “fall squarely within the
discretionary function exception”). And, for purposes of this
second element of the discretionary function test, we
similarly perceive no basis for treating termination decisions
differently from hiring or training decisions. As the flip side
of a hiring decision, a decision to fire an employee is equally
susceptible to a policy analysis. See Sydnes, 523 F.3d
at 1185–86 (“[D]ecisions regarding employment and
termination . . . are precisely the types of administrative
action the discretionary function exception seeks to shield.”
(simplified)). Indeed, we held in Vickers that an allegedly
negligent “delay in discharging” an employee was
“susceptible to policy analysis.” 228 F.3d at 950–51
(emphasis added). We therefore have little difficulty in
concluding that the decision to terminate Miller was likewise
“of the kind that the discretionary function exception was
designed to shield.” Berkovitz, 486 U.S. at 536.

Given that the Tribe’s termination is thus “presumed” to
be “grounded in policy,” Miller’s complaint could “survive
a motion to dismiss” only by “alleg[ing] facts which would
support a finding that the challenged actions are not the kind
of conduct that can be said to be grounded in the policy of
the regulatory regime.” Gaubert, 499 U.S. at 324–25.
Citing Franchise Tax Board of California v. Hyatt, 407 P.3d
 MILLER V. UNITED STATES 19

717 (Nev. 2017) (en banc), rev’d on other grounds,
139 S. Ct. 1485 (2019), Miller contends that his allegations
of intentional torts and bad-faith conduct suffice to defeat the
discretionary function exception because, in his view, such
acts are not the product of any plausible policy objective. In
Hyatt, the Nevada Supreme Court construed Nevada’s state-
law analog to the FTCA and adopted a construction similar
to the one Miller advocates here. See 407 P.3d at 733. The
Nevada high court is, of course, free to construe its state
statute as it deems appropriate, but in several respects its
reasoning does not fit the FTCA.

As an initial matter, the Hyatt court relied on the
conclusion that the Nevada statute’s discretionary function
immunity “does not protect a government employee for
intentional torts or bad-faith misconduct, as such
misconduct, by definition cannot be within the actor’s
discretion.” 407 P.3d at 733 (simplified) (emphasis added).
As this quotation makes clear, Nevada’s carve-out of
intentional and bad-faith torts implicitly rests on the first
element of the discretionary function test—whether there is
discretion to perform the act—and then relies on state law to
supply those limits. But under the FTCA the applicable
limits on discretion must be derived from federal law, not
state law. See supra note 3.

Moreover, to the extent that Hyatt relied on the second
element of the discretionary function test in carving out
intentional and bad-faith torts from Nevada’s version of the
FTCA, the Supreme Court’s decision in Gaubert forecloses
adopting that view in the context of the FTCA. In particular,
recognizing such a carve-out based on the second element of
the test would contravene Gaubert’s clear instruction that the
“focus” of the second element “is not on the agent’s
subjective intent,” 499 U.S. at 325, but instead requires an
20 MILLER V. UNITED STATES

objective inquiry. See also Gonzalez, 814 F.3d at 1032;
Miller, 163 F.3d at 593. In addition, such a carve-out is
inconsistent with Gaubert’s directive that the second
element of the test turns on whether the challenged actions
are “the kind of conduct that can be said to be grounded in
the policy of the regulatory regime.” Gaubert, 499 U.S.
at 325 (emphasis added). As that phrasing confirms, the
inquiry is framed “at a higher level of generality” by “asking
categorically (rather than case specifically) whether the kind
of conduct at issue can be based on policy concerns.”
Sydnes, 523 F.3d at 1185. Finally, any such Hyatt-style
carve-out cannot be squared with the FTCA’s express
instruction that the discretionary function exception applies
“whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a) (emphasis added). Accordingly, there
is no categorical carve-out, at the second step of the test, for
“bad faith” or “intentional” torts. 5

5
Miller also points to Hyatt’s assertion that some federal courts have
adopted a categorical exclusion. See 407 P.3d at 731. We disagree with
Hyatt’s reading of the cited cases. See Coulthurst v. United States,
214 F.3d 106, 110–11 (2d Cir. 2000) (discussing some of the
circumstances in which an FTCA claim “involves negligence unrelated
to any plausible policy objectives”); Palay v. United States, 349 F.3d
418, 431–32 (7th Cir. 2003) (discussing Coulthurst’s analysis of “types
of negligence”); id. at 428 (confirming that “applicability of the
exception depends not on the intent of the government actor ‘but on the
nature of the actions taken and on whether they are susceptible to policy
analysis’” (quoting Gaubert, 499 U.S. at 325)); Triestman v. Federal
Bureau of Prisons, 470 F.3d 471, 475–76 (2d Cir. 2006) (relying on
Coulthurst to conclude that a “negligent guard” theory was not barred by
discretionary function exception). None pertained to intentional torts, so
they are not instructive here.
 MILLER V. UNITED STATES 21

Because both elements of the Gaubert-Berkovitz test are
satisfied, the discretionary function test bars Miller’s two
retaliation-based wrongful termination claims.

B

We next address whether the discretionary function
exception also bars Miller’s third cause of action, which
alleges that his termination was wrongful because it was the
result of a process that did not adhere to the procedural
requirements of the Contract and other relevant provisions.
As with Miller’s prior claims, we answer this question by
first identifying what acts or omissions this claim is “based
upon” and then determining whether those actions reflect the
performance of a “discretionary function or duty” under the
same two-part Gaubert-Berkovitz test. 28 U.S.C. § 2680(a).

Miller’s third cause of action asserts a claim for “tortious
discharge” under Nevada law, which requires the plaintiff to
plead and prove, inter alia, that the defendant engaged in a
“wrongful, usually retaliatory, interruption of employment
by means which are deemed to be contrary to the public
policy of this state.” D’Angelo, 819 P.2d at 216 (emphasis
added). The violation of “public policy” that forms the basis
of Miller’s third claim is the Tribe’s failure to comply with
the procedural requirements that were applicable under the
Contract and other rules and policies. 6 In contrast to the first
two claims, Miller’s third cause of action thus does not rest

6
In moving to dismiss, the Government argued that Nevada law
would not recognize a “tortious discharge” cause of action based on these
alleged procedural deficiencies. The district court found it unnecessary
to address this issue and instead assumed arguendo that Miller’s third
cause of action states a claim under Nevada law. See supra at 10. We
make the same assumption for purposes of this appeal and therefore
express no view on that question.
22 MILLER V. UNITED STATES

on the assertion that the Tribe engaged in retaliation. Rather,
the violation-of-public-policy element of the tort rests on the
Tribe’s alleged violation of procedural rules during the
process leading up to his termination. Because these
procedural violations are the actions that satisfy the
wrongfulness element of this claim, they are what that claim
is “based upon” for purposes of the FTCA. Broidy, 982 F.3d
at 593–94.

The question, then, is whether the procedural violations
that Miller alleges here involve the performance of a
discretionary function or duty under the FTCA. We
addressed comparable questions in Sabow, 93 F.3d at 1451–
54, and in Vickers, 228 F.3d at 951–53, and we reached
different conclusions in light of the distinct claims and
records before us in each case. Applying the reasoning of
these cases to Miller’s third cause of action, we conclude that
the discretionary function exception does not apply.

In Sabow, the plaintiffs asserted a claim under the FTCA
for negligent infliction of emotional distress based on the
alleged failure of Navy officials “to follow specific
investigative regulations and directives” applicable to the
investigation of the death of one of plaintiffs’ relatives, who
was a Marine Corps Colonel. 93 F.3d at 1450–51. Applying
the two-step Gaubert-Berkovitz test, we held that this aspect
of the claim was barred by the discretionary function
exception because (1) none of the cited regulations and
manuals imposed “mandatory” directives with respect to the
challenged aspects of the investigation; and (2) the
“discretionary judgments” at issue “involved social,
economic, or political considerations.” Id. at 1453–54.

In Vickers, plaintiff Miriam Vickers sued the United
States after her ex-husband, an Immigration and
Naturalization Service (“INS”) employee named Akanni
 MILLER V. UNITED STATES 23

Kendalla, shot her with his INS-issued firearm after a
domestic argument. 228 F.3d at 946–48. Among other
things, Vickers alleged that the INS had been negligent “in
failing to investigate” an earlier alleged incident in which
Kendalla had used his INS-issued revolver to shoot at a
former girlfriend. 7 Id. at 947–48 & n.3. As a result, Vickers
alleged, Kendalla “was in possession of the gun he used to
shoot her, a gun he otherwise would not, and should not,
have had.” Id. at 947. In holding that the discretionary
function exception did not bar this claim, we distinguished
Sabow, which we described as “recogniz[ing] that the
discretionary function exception protects agency decisions
concerning the scope and manner in which it conducts an
investigation so long as the agency does not violate a
mandatory directive.” Id. at 951 (emphasis added).
Reviewing the relevant regulations and administrative
manual in Vickers, we concluded that they imposed a
mandatory duty to conduct some investigation of “misuse of
Service-issued firearms.” Id. at 953. Because the decision
not to investigate the earlier shooting incident “was not a
matter of judgment or choice,” the INS’s effort to invoke the
discretionary function exception failed at the first step. Id.;
see also Bailey ex rel. Estate of Bailey v. United States,
623 F.3d 855, 860 (9th Cir. 2010) (“An agency does not
retain discretion whether to act where a statute or policy
directs mandatory and specific action and the agency has no
lawful option but to adhere to the directive.” (emphasis
added)).

7
Vickers also asserted a separate claim that the INS had negligently
delayed its termination of Kendalla, but (as noted earlier, see supra at 18)
we held that the discretionary function exception barred that particular
claim. Vickers, 228 F.3d at 949–51.
24 MILLER V. UNITED STATES

In applying the standards set forth in Sabow and Vickers,
we must first identify the relevant federal regulations and
policy documents that constrain the Tribe’s behavior and
then determine whether they contain mandatory
requirements that the Tribe allegedly breached in its
handling of Miller’s employment situation. Given that,
under the Contract between the Tribe and the BIA, the
Federal Government is absorbing (within the limits of the
FTCA) the Tribe’s liability for tribal employees’ relevant
actions, it is hardly surprising that the Contract contains a
number of provisions governing the procedures to be used to
investigate potential misconduct. For example, the Contract
broadly states that all law-enforcement services must be
conducted in accordance with, inter alia, the “procedures
and guidelines contained in . . . 25 CFR,” i.e., the rules
contained in Title 25 of the Code of Federal Regulations.
See also 25 C.F.R. § 12.11 (stating that regulations
contained in Part 12 of the C.F.R. apply to any “tribal law
enforcement program receiving Federal funding”). In
addition to meeting the various requirements set forth in
those federal regulations, the Tribe’s law-enforcement
program must also meet the “minimal qualitative standards
and procedures specified in,” inter alia, the BIA’s “Law
Enforcement Handbook.” See 25 C.F.R. § 12.14. In
addition, the Contract provides that the Tribe shall “adhere”
to any applicable “general requirements of tribal personnel
systems and policies prior to taking any adverse action
against contract employees.” If the Tribe does not have
established policies and procedures concerning the handling
and investigation of “citizen complaints” and the taking of
“adverse action” against tribal law-enforcement personnel,
then the Contract sets forth certain default provisions that
must be followed in that regard.
 MILLER V. UNITED STATES 25

These various regulations and policy documents contain
several requirements that are pertinent here. First, § 12.53
of the applicable regulations describes the BIA’s “internal
affairs program,” which “investigates all allegations of
misconduct by . . . any officer receiving funding and/or
authority from the BIA.” 25 C.F.R. § 12.53. To ensure that
the BIA’s internal affairs unit will be able to undertake this
task, § 12.53 specifically provides that “[a]ny person having
knowledge of officer misconduct must report that
information to the officer’s supervisor,” who then “must
immediately report allegations to the internal affairs unit.”
Id. (emphasis added). The Handbook, in turn, further
describes the procedures applicable to the BIA internal
affairs unit, which the Handbook states “is now known as the
Professional Standards Division—(PSD).” The Handbook
reiterates that tribal Chiefs of Police and supervisors “are
required to report all allegations of misconduct . . . to PSD
within 24 hours of occurrence.” Upon receipt of such a
report, PSD will review the allegations and decide either to
investigate the allegations itself or to refer it elsewhere. The
Handbook also sets forth various procedural rights that an
employee has during such an investigation and affirms that
“PSD investigations will be objective, fair, and thorough.”

Miller’s operative complaint sets forth these procedural
protections, among others, and specifically alleges that the
Tribe failed to comply with them in connection with its
investigation of whether Miller had committed
unemployment fraud. Given the mandatory reporting
requirements set forth explicitly in 25 C.F.R. § 12.53 and the
Handbook, the Tribe’s “failure to report” the fraud allegation
against Miller to the PSD “constituted a failure to follow the
mandatory requirements proscribed by agency regulations
as implemented by policy guidelines” in the Handbook.
Vickers, 228 F.3d at 953 (emphasis added). Moreover, the
26 MILLER V. UNITED STATES

failure to notify the PSD is sufficiently causally related to
the ultimate termination decision because that omission
allowed the Tribe to escape the BIA’s oversight, thereby
enabling the Tribe (according to the complaint) to conduct a
sham investigation and to fire Miller on the invalid and
pretextual ground that he had committed unemployment
fraud. Cf. Dichter-Mad Fam. Partners, LLP v. United
States, 709 F.3d 749, 751 (9th Cir. 2013) (affirming
dismissal of FTCA claim where “[t]hose policies that are
arguably mandatory lack the causal relationship to the
plaintiffs’ alleged injuries required to establish jurisdiction,
even under a generous reading of the complaint”).

Accordingly, under Vickers, the first element of the
Gaubert-Berkovitz test is not met as to this claim, and “the
FTCA’s discretionary function exception does not apply.”
228 F.3d at 953. We therefore “need not proceed to the
second part of the FTCA test and determine whether that
judgment or choice was of the type Congress intended” to
protect. Id. As a result, the district court erred in concluding
that Miller’s third cause of action was barred by the
discretionary function exception.

III

In denying Miller’s motion for leave to file a Third
Amended Complaint, the district court relied solely on the
ground that the discretionary function exception barred all of
the claims asserted in that proposed complaint. We hold that
the district court erred in concluding that the discretionary
function exception barred the two additional claims Miller
sought to raise in that complaint.
 MILLER V. UNITED STATES 27

In addition to reasserting the three claims that we have
already discussed, 8 Miller’s proposed Third Amended
Complaint included two new claims alleging, respectively,
that the Tribe was negligent and grossly negligent in
terminating him. The gravamen of these two new claims
was Miller’s allegation, based on the DETR document
discussed earlier, that the Tribe terminated him “despite
being informed and having knowledge” that Miller had been
“the victim of identity theft and had not filed” the fraudulent
unemployment claim. We agree with Miller that, because
the BIA Handbook mandated that tribal employees could
“not be disciplined for allegations deemed unfounded,
exonerated, or not sustained,” the Tribe lacked discretion to
fire him on grounds that it knew to be false and
unsubstantiated. Because these claims rest on “a failure to
follow the mandatory requirements” prescribed in the BIA
Handbook, the first element of the Gaubert-Berkovitz test is
not met and the discretionary function exception does not
apply. Vickers, 228 F.3d at 953. The district court therefore
erred in concluding that the discretionary function exception
provided sufficient grounds to deny leave to amend to assert
these two new claims. 9

* * *

For the foregoing reasons, the judgment of the district
court is affirmed to the extent that it dismissed the
retaliation-based causes of action in Miller’s Second

8
The Third Amended Complaint added some additional allegations
to these original three claims, but those amendments do not affect our
earlier analysis.
9
As with the earlier claims, we express no view as to whether these
two new claims state a cause of action under the applicable Nevada law.
See supra note 6.
28 MILLER V. UNITED STATES

Amended Complaint (i.e., the first and second causes of
action). We reverse the judgment to the extent that the
district court relied on the discretionary function exception
in (1) dismissing the third cause of action in the Second
Amended Complaint and (2) denying leave to amend to
assert the two new claims in Miller’s proposed Third
Amended Complaint. The matter is remanded for further
proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.