Morris v. United States

Case: 24-40576 Document: 66-1 Page: 1 Date Filed: 05/18/2026

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 24-40576

FILED

May 18, 2026

____________

Lyle W. Cayce

Brittany Morris, Clerk

Plaintiff—Appellant,

versus

United States of America,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:22-CV-227

______________________________

Before Higginbotham, Jones, and Southwick, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Brittany Morris was violently attacked by her ex-boyfriend, Rondell

Malveaux, while he was on supervised release as a result of a conviction in

federal court. Just three days before the attack, Morris warned his probation

officer of Malveaux’s threats against her. The officer promised to take

specific steps to protect her but then failed to do so. After the assault, Morris

brought a claim under the Federal Tort Claims Act alleging negligence and

negligent undertaking. The district court, relying on an exception under the

Act for misrepresentations, held that the officer’s promises were key to

Morris’s suit and dismissed for lack of jurisdiction. We hold that the

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allegedly negligent failure to take minimal actions to protect Morris is a

separate and available claim. We REVERSE and REMAND.

FACTUAL AND PROCEDURAL BACKGROUND

Beginning in 2011, Malveaux served consecutive state and federal

sentences for illegal possession of a firearm, possession of illegal drugs, and

assault on a public servant. Malveaux completed his term in prison and was

released to serve three years of federal supervision in 2016. Thereafter,

Malveaux was supervised at all relevant times by federal probation officer

Beverly Matt.

As a condition of his supervised release, Malveaux was required to live

at a residential reentry facility through November 27, 2019. Instead,

Malveaux left without permission around August 1, 2019. He called Morris,

who lived in Beaumont, Texas, in order to have her pick him up. Morris

refused and instead notified Probation Officer Matt, explaining that

Malveaux was a threat to Morris and her children. Officer Matt determined

that Malveaux was in violation of his supervised release and a danger, so she

informed Morris that a warrant would issue for Malveaux’s arrest.

Officer Matt petitioned for a warrant on August 2, citing: (1) failure to

report to a halfway house; (2) failure to install a telephone line; (3) failure to

secure employment; (4) failure to notify regarding termination of

employment; (5) testing positive for Phencyclidine (PCP); (6) admitting to

smoking synthetic marijuana; (7) violating open container laws; (8) failure to

attend substance abuse treatment; and (9) being discharged unsuccessfully

from the halfway house. The petition did not refer to the threat Malveaux

posed to Morris or state the petition was urgent.

In the early morning of August 4, Malveaux burglarized Morris’s

home, confronted Morris about not picking him up from the facility, and

attacked Morris’s friend. Malveaux left before the police arrived. Malveaux

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then began calling and messaging Morris, threatening to kill her. Because

Malveaux stole Morris’s iPhone, Morris was able to obtain his approximate

location using its Find My iPhone application. Morris reported his location

to the local police and also informed Officer Matt about the threats, the

assault, the burglary, and Malveaux’s PCP use. Officer Matt assured Morris

that an arrest warrant would issue “immediately,” she would “make sure

Morris was not in danger,” and she would “ensure that Morris was safe to

stay in her home.”

Over the next two days, Officer Matt did not inform the court or the

United States Attorney’s office of these threatening developments and thus

failed to signify the urgency of an arrest. Officer Matt also did not

communicate with or notify local law enforcement about Malveaux’s erratic

and violent conduct. After those two days, Malveaux broke into Morris’s

home. He repeatedly stabbed Morris, breaking the blade of the knife off in

her body. In the attack, Malveaux severed Morris’s spinal cord, leaving her

a quadriplegic.

Morris filed claims pursuant to the Federal Tort Claims Act (FTCA)

in the United States District Court for the Eastern District of Texas. 28

U.S.C. § 2674. In her second amended and operative complaint, Morris

asserts negligence and negligent undertaking claims against the United

States. The Government moved to dismiss the complaint, arguing the court

lacks subject matter jurisdiction because the facts pled by Morris fell within

the FTCA’s misrepresentation and discretionary function exceptions. The

district court agreed that the misrepresentation exception applied and

granted the Government’s motion to dismiss.1 Morris timely appealed.

_____________________

1

After the district court concluded the misrepresentation exception applied, it did

not consider the applicability of the discretionary function exception.

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DISCUSSION

“This court reviews the grant of a 12(b)(1) motion to dismiss for lack

of subject matter jurisdiction de novo.” Life Partners Inc. v. United States, 650

F.3d 1026, 1029 (5th Cir. 2011). The burden of proof is on the party asserting

jurisdiction, and we “take[] as true all of the allegations of the complaint and

the facts set out by the plaintiff.” Id. The dismissal will be affirmed only if

“it appears certain” that the plaintiff “cannot prove any set of facts in

support” of a claim entitling the plaintiff to relief. Id. (citation and quotation

marks omitted).

Morris’s claims were filed pursuant to the FTCA, which provides a

limited waiver of sovereign immunity. 28 U.S.C. §§ 1346(b), 2671–2680.

The FTCA grants jurisdiction to district courts for civil actions against the

United States as to claims

for injury or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any employee

of the Government . . . , under circumstances where the

United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act

or omission occurred.

Id. § 1346(b)(1).

There are several exceptions to the FTCA’s grant of jurisdiction, two

of which the Government contends are applicable here. First, the FTCA

exempts tort claims “arising out of . . . misrepresentation. Id. § 2680(h).

Second, there is an exception for discretionary functions, which applies to

actions “based upon the exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part of . . . an employee of the

Government, whether or not the discretion involved be abused.” Id. §

2680(a).

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On appeal, Morris argues the district court erred in dismissing her

claims, contending that neither exception applies in this case. We will

separately analyze the two exceptions.

I. Misrepresentation Exception

A. Legal principles

The misrepresentation exception displaces federal courts’

jurisdiction over “[a]ny claim arising out of” the common law tort of

misrepresentation. Id. § 2680(h). The exception equally “applies to both

negligent and intentional misrepresentations, as well as to both affirmative

acts and omissions of material fact.” Metropolitan Life Ins. Co. v. Atkins, 225

F.3d 510, 512 (5th Cir. 2000). Even a distinct cause of action is barred if the

“underlying governmental conduct ‘essential’” to the claim “can be fairly

read to ‘arise out of’ conduct that would establish” a misrepresentation

claim. McNeily v. United States, 6 F.3d 343, 347 (5th Cir. 1993) (citation

omitted).

This circuit has adopted a two-step process to determine whether the

misrepresentation exception bars a claim. Life Partners, 650 F.3d at 1031. At

the first step, “we determine whether ‘the chain of causation’ from the

alleged negligence to the injury depends upon a misrepresentation by a

government agent.” Id. (citation omitted). That entails “consider[ing]

whether the focal point of the claim is negligence in the communication of

(or failure to communicate) information or negligence in the performance of

an operational task, with misrepresentation being merely collateral to such

performance.” Metropolitan Life, 225 F.3d at 512. For the exception to apply,

the misrepresentation must be the “gravamen of the action.” Block v. Neal,

460 U.S. 289, 296 (1983). If the chain of causation, in fact, depends upon a

misrepresentation, then we move on to the second step and consider whether

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sovereign immunity has been waived independently of the FTCA. Life

Partners, 650 F.3d at 1032.

Morris contends that the misrepresentation exception is inapplicable

here because the focal point of her claims is Officer Matt’s failure to act with

reasonable care, not misrepresentation. Morris makes three supporting

arguments. First, Morris argues “the essence” of her negligent undertaking

claim is “the inadequacy of Officer Matt’s effort[s] to fulfill her promise to

protect Morris, not the promise itself.” Second, Morris contends that

Officer Matt’s statements were not false because Officer Matt attempted to

follow through on her promise but simply did so negligently. Third, Morris

asserts that the misrepresentation exception cannot apply because Officer

Matt’s negligent conduct was distinct from any failure of communication.

In response, the Government argues that Morris’s claim began as one

for misrepresentation but was then recast to circumvent the exception. The

Government also quotes the operative complaint, which contains allegations

that “the least Matt could and should have done was to revise her

instructions to Morris; instead of telling Morris not to worry, Matt should

have told Morris to take precautions because Malveaux remained at large,”

and she should have “t[old] Morris that in fact Matt had not done enough to

help keep Morris safe.” According to the Government, the district court

properly looked beyond Morris’s labeling of her claims to conclude that “the

focus of Morris’s charge was [Officer] Matt’s failure to use due care in

communicating information to Morris.”

Our analysis starts with the reality that “the line between what

constitutes a permissible negligence claim and a barred misrepresentation

claim has not been clearly delineated.” Saraw P’ship v. United States, 67 F.3d

567, 570 (5th Cir. 1995). Since negligence and misrepresentation claims do

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not divide cleanly, some overlap of the two will not doom an otherwise valid

claim. Block, 460 U.S. at 298.

One example of this overlap was in Block, where a homeowner

contracted for a prefabricated home approved by the Farmers Home

Administration (FmHA). Id. at 291. An FmHA official inspected the home

multiple times and approved the construction, issuing a report that the home

matched specifications the agency had approved. Id. at 292. Once the

homeowner moved in, she noticed her heat pump was not working and

requested that the agency inspect the home again. Id. In this last inspection,

FmHA uncovered thirteen additional defects. Id. The Supreme Court held

that the FTCA’s misrepresentation exception did not bar the homeowner’s

negligent undertaking claim. Id. at 294, 298–99. Even though the

homeowner would have had a negligent misrepresentation claim if not for the

misrepresentation exception, “the partial overlap between [the

misrepresentation and negligent undertaking] actions does not support the

conclusion that if one is excepted under the Tort Claims Act, the other must

be as well.” Id. at 298. Crucially, the Court held that FmHA’s duty to

exercise due care in supervising and inspecting construction was distinct

from its duty to use due care in communication; therefore, there was

jurisdiction over the negligent undertaking claim. Id. at 297. Indeed, though

the Court specified that “the essence of an action for misrepresentation . . . is

the communication of misinformation on which the recipient relies,” it also

recognized that negligent undertaking claims often include reliance as an

element — the presence of reliance does not necessarily doom a negligent

undertaking claim. Id. at 296–97 & n.5. The reliance essential to the

homeowner’s negligent undertaking claim, instead, gave rise to

“‘misrepresentation’ only in the generic sense of the word,” not sounding in

the tort of negligent misrepresentation. Id. at 298 n.7.

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In one of this court’s precedents, we held that the essence of the

conduct underlying the claim controls whether the claim, for FTCA

purposes, “aris[es] out of . . . misrepresentation” or a different tort.2 Saraw,

67 F.3d at 569–71 (quoting 28 U.S.C. § 2680(h)). In Saraw, a Veterans

Affairs (VA) employee made a clerical error, causing the VA not to process

Saraw’s loan payment. Id. at 568. This error resulted in one of Saraw’s loans

falling into arrears and the VA foreclosing on one of Saraw’s properties. Id.

at 569. The misrepresentation exception question turned on whether the

“causa sine qua non” of the alleged tort was either the “erroneous keypunch”

leading to the clerical error or the VA’s failure to communicate that it did

not receive payment. Id. at 570–71. We held that the “essential act that

spawned” the alleged tort was the VA’s “mishandling of Saraw’s

payments,” not its faulty communication. Id. In coming to this conclusion,

we contrasted misrepresentation injuries — the “essence [of which] is the

communication of misinformation on which the recipient relies” — with the

injury caused by the alleged non-excepted tort, there the “government’s

careless handling of Saraw’s loan payments.” Id. (quoting Block, 460 U.S. at

296). Based on this analysis, we held that any failure to communicate, and

the accompanying reliance harm, “seem[ed] collateral” to the case and that

the “proper focal point . . . [was] the alleged negligently [] performed

operational task of the government.” Id.

Further, when the focal point of the claim is the “negligent

performance of an operational task,” the conduct is not, at its essence, a

_____________________

2

Judicial opinions have used different descriptors in explaining the inquiry,

including “causa sine qua non” or “essence” of the claim, Saraw, 67 F.3d at 570–71, as well

as the “focal point,” Metropolitan Life, 225 F.3d at 512, or the “gravamen” of the tort,

Block, 460 U.S. at 296. Regardless of the phrasing used to describe the concept, the

meaning is the same: We reduce the claim, including the alleged conduct, to its basic nature

and determine whether it arises out of the breach of a duty distinct from misrepresentation.

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misrepresentation for FTCA purposes. Metropolitan Life, 225 F.3d at 513.

In Metropolitan Life, the sister of a deceased individual brought a third-party

negligence claim against the United States pursuant to the FTCA, asserting

that she was unable to recover on her brother’s life insurance policy, of which

she was the named beneficiary, because a federal personnel clerk had failed

to preserve a signed original copy of the deceased’s beneficiary form. Id. at

512. We held the “focal point” of the alleged tort was not the failure to

communicate that the clerk had misplaced the document, but rather the

government’s misplacing it at the outset. Id. at 512–13. We resisted relying

on the fact that the harm likely would have been remedied by communication,

as that was not the essence of the claim. See id. Those facts presented a

particularly close question, but even there this court held there was no

misrepresentation.

In contrast, we held in Life Partners that the misrepresentation

exception applied when an agency falsely characterized the status of a life

insurance policy to a buyer, causing the buyer to pay for a policy that had

already been assigned to another party. Life Partners, 650 F.3d at 1028–29,

1034. Life Partners’ claims depended entirely on facts that amounted to

misrepresentations — telling Life Partners that the life insurance policy had

not previously been assigned though it actually had been. Id. at 1033. Because

“Life Partners would have suffered no injury absent the misrepresentation,”

the suit was barred by Section 2680(h). Id. at 1033–34.

There is one more significant Supreme Court precedent to discuss.

See United States v. Neustadt, 366 U.S. 696 (1961). In Neustadt, the plaintiff

had purchased a home based on a Federal Housing Administration

inspector’s appraisal that did not account for the house’s structural flaws. Id.

at 699–700. Not long after Neustadt moved in, cracks in the ceiling and walls

appeared that were caused by structural defects that seriously diminished the

value of the house. Id. at 700–01. Neustadt brought suit against the United

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States, seeking the difference between the fair market value of the house and

the amount paid. Id. at 701. As the Court in Block identified, Neustadt’s

claim fell into the misrepresentation exception because “Neustadt alleged no

injury that he would have suffered independently of his reliance on the

erroneous appraisal.” Block, 460 U.S. at 296. The exception applied

because, even though the inspection itself was negligently performed, the

harm arose from the “duty to use due care in obtaining and communicating

information,” the heart of the “traditional legal definition of ‘negligent

misrepresentation.’” Id. at 296 (quoting Neustadt, 366 U.S. at 706–07).

B. Allegations in complaint

We now review the allegations in the operative complaint to

determine whether the essence of Morris’s claim sounds in negligent

undertaking or in misrepresentation. In order to categorize the allegations

accurately, we explain the elements of negligent undertaking and contrast

that tort with the meaning of “misrepresentation” under the FTCA.

Texas law applies here, as the FTCA requires federal courts to apply

the substantive tort law “of the state where the alleged negligence occurred.”

Le v. United States, 138 F.4th 264, 272 (5th Cir. 2025). “Under Texas law, a

defendant who undertakes to render services that it knows or should know

are necessary for the protection of the other’s person or things must generally

exercise reasonable care in performing the undertaking.” In re First Rsrv.

Mgmt., L.O., 671 S.W.3d 653, 660 (Tex. 2023) (citation and quotation marks

omitted). “The critical inquiry concerning the duty element of a negligent-

undertaking theory is whether a defendant acted in a way that requires the

imposition of a duty where one otherwise would not exist.” Id. (citation and

quotation marks omitted). The tort has these requirements: “(1) the

defendant undertook to perform services that it knew or should have known

were necessary for the plaintiff's protection; (2) the defendant failed to

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exercise reasonable care in performing those services; and either (a) the

plaintiff relied upon the defendant’s performance, or (b) the defendant’s

performance increased the plaintiff’s risk of harm.” Nall v. Plunkett, 404

S.W.3d 552, 555–56 (Tex. 2014).

In contrast, “the essence of an action for misrepresentation . . . is the

communication of misinformation on which the recipient relies.” Block, 460

U.S. at 296. The Court has held that a claim asserting a breach of the “‘duty

to use due care in obtaining and communicating information upon which [the

plaintiff] may reasonably be expected to rely in the conduct of his economic

affairs,’ merely restated the traditional legal definition of ‘negligent

misrepresentation’ as would have been understood by Congress when the

[FTCA] was enacted.” Id. (quoting Neustadt, 366 U.S. at 706–07).

In her second amended complaint, Morris alleges that Officer Matt

“submitted a petition for the Court to issue a warrant requiring Malveaux to

appear” after Malveaux’s unsuccessful discharge on August 2 and before his

criminal activity on August 4, “but [Matt] did not mention the threat to

Morris[’s life] or indicate that the request was urgent.” Morris asserts that

“[d]uring a phone conversation after the burglary, Matt told Morris that

Matt would get a warrant immediately, make sure Morris was not in danger,

and ensure that Morris was safe to stay in her home.”

We set out here several detailed paragraphs from the complaint. It is

obvious that there are claims both of misrepresentation and of negligent

failures to act:

Matt . . . promised Morris that [Matt] would [protect her],

promised to obtain a warrant, sought that warrant, and

promised to make sure Morris would be safe in her home.

[T]he court and the United States Attorney were not timely

informed of Malveaux’s violence or threat of murder, and so

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no warrant for Malveaux’s arrest issued before Malveaux’s

second attack. . . .

Matt and other employees of the United States . . . delay[ed] in

informing local authorities of the probation violations, and

fail[ed] to inform Morris of the lack of a warrant, such that

protective measures could be taken. . . .

Moreover, Morris detrimentally relied on Matt . . . to

supervise Malveaux and protect her from Malveaux by

promptly obtaining a warrant for his arrest and arresting him,

or taking such other actions as might be necessary to ensure

Morris was safe. . . .

Malveaux was not properly supervised and Morris remained

vulnerable to Malveaux, whereas if a warrant had [been] timely

obtained[,] . . . then Malveaux likely would have been

intercepted or diverted before he assaulted Morris, as his

location was readily accessible due to his possession of her

stolen iPhone and he could have been found using other law

enforcement methods due to his reckless crime spree. . . .

Matt’s failure to diligently communicate with Morris despite

her promise and advice to Morris that she did not need to worry

about Malveaux and Morris did not need to do anything further

proximately caused Morris’ injuries.

That second-to-last quoted paragraph is a fair summary of the alleged

facts underlying the claim that Matt’s failure to act caused Morris’s

horrendous injuries. The question is whether the facts alleged in the

complaint support the breach of a duty distinct from a duty to communicate

information with due care. Williamson v. Dep’t of Agric., 815 F.2d 368, 377

(5th Cir. 1987) (citing Block, 460 U.S. at 297). Of course, “the manner in

which a plaintiff chooses to plead her claim is not controlling” since we look

to the nature of the claim and the facts alleged therein. Metropolitan Life, 225

F.3d at 512. We must determine whether the gravamen of the claim is the

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“negligen[t] . . . performance of an operational task,” id. at 512, or only the

“communication of misinformation,” Block, 460 U.S. at 296.

We review the factual allegations. Officer Matt promised to protect

Morris and obtain a warrant quickly, but she then broke that promise by

failing to inform the court that Malveaux was dangerous. She also did not

expedite the warrant process, even after Malveaux burglarized Morris’s

home and attacked Morris’s friend while on PCP. The complaint alleges

that Officer Matt’s statements led Morris to rely on Officer Matt’s

undertaking, but reliance does not necessarily transform a negligent

undertaking claim into a misrepresentation claim. See Block, 460 U.S. at 298.

The complaint does not allege Morris changed her conduct in reliance on

what Officer Matt said or that injury was the result of the reliance. While

reliance on a “communication of misinformation” is the “essence of an

action for misrepresentation,” a claim does not fall into the

misrepresentation exception so long as it alleges a valid claim independent of

such reliance — i.e., it is not a dressed-up misrepresentation claim. Id. at

296–98. Further, a “negligence claim may” properly “include an element of

reliance,” as did the negligent undertaking claim in Block; it must simply

avoid the type of reliance required by the tort of misrepresentation. Id. at 297

n.7 (explaining that reliance in this context will “constitute

‘misrepresentation’ only in the generic sense of the word”).

Block controls here. The Block Court viewed the homeowner’s claim

as primarily a function of FmHA’s negligence because her claims turned on

FmHA neglecting a duty outside of collecting and transmitting information.

It was obligated, through its undertaking, to perform an operational task, i.e.,

supervising construction with due care. Id. at 297–98. This rendered the

homeowner’s negligent undertaking claim “distinct” from the breach of the

duty “to use due care in communicating information.” Id. In Neustadt, by

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contrast, the alleged injury was solely the result of the plaintiff’s “reliance on

the erroneous appraisal.” Id. at 296.

As in Block, Morris’s claims depend on a duty that extended beyond

gathering and transmitting information with due care. Morris pled sufficient

facts to conclude that Officer Matt, having made her discretionary decisions

on how to perform her duties, was obligated to supervise Malveaux with due

care and to pursue a warrant expeditiously. Those facts are easily

distinguishable from the collection and transmission of defective information

that constituted the injury in Neustadt. The facts of this case are analogous

to the FmHA’s concurrent, yet distinct, duties to oversee and inspect

construction and to transmit true information to the homeowner. Id. at 297–

98. As in Block, Officer Matt’s additional failure to exercise due care in

transmitting information to Morris does not avail the United States. See

Truman v. United States, 26 F.3d 592, 595 (5th Cir. 1994). Indeed, Officer

Matt’s misrepresentation punctuates the injury; the injury does not spring

from it. The district court, in dismissing this suit, invoked Life Partners for

the proposition that Morris’s allegations solely “concern negligent

communication.” We held in that case that the claim fell into the

misrepresentation exception because the negligent recordkeeping claim was

wholly eclipsed by misrepresentation: Life Partners “would have suffered no

injury absent the misrepresentation” because the only error was in

negligently or intentionally representing the insurance policy’s status. Life

Partners, 650 F.3d at 1033. Accordingly, the focal point of that claim was

misrepresentation, not the negligent performance of an operational task.

A more apt precedent for the facts of this case is Metropolitan Life.

There, a federal employee’s failure to “preserve and properly file” the

deceased’s insurance paperwork caused a dispute over which party, the

named beneficiary or the decedent’s widow, was entitled to the policy.

Metropolitan Life, 225 F.3d at 511–13. This court held that the “crux of [the]

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claim” was better understood as negligent handling of the personnel file, not

failure to communicate that the paperwork was incorrectly completed or lost,

even though better communication would have prevented the injury from

occurring. Id. at 512–13. Here, the cornerstone of Morris’s claim is that

Malveaux’s vicious assault occurred because of Officer Matt’s lack of haste;

the fact that events may have turned out differently had Officer Matt

communicated better does not alter the essence of Morris’s claim. See id.

Morris’s claim is certainly not wholly eclipsed by misrepresentations like

those in Life Partners. That is because Morris alleges facts outside the ambit

of gathering and transmitting information, thus beyond the scope of a duty to

use due care in communicating information.

Though distinct, there is clearly some overlap between the negligent

undertaking claim (which relies on the satisfaction of a duty to act non-

negligently that may include a communication of information) and a

misrepresentation (communication of misinformation on which the plaintiff

relied). The Supreme Court has acknowledged this frequent overlap —

especially between negligent undertaking and misrepresentation, which often

share reliance as an element — and yet blessed claims for which the gravamen

is the “breach of a different duty.” Block, 460 U.S. at 297–98. Here, the

gravamen of one of Morris’s claims is Officer Matt’s alleged breach of her

duty to discharge her obligation to secure a warrant and Malveaux’s arrest

with due care. Though Morris’s operative complaint mentions her reliance

on Officer Matt’s failure to “diligently communicate with Morris,” that

allegation is “collateral” to this claim, merely playing a supportive role in

showing that Officer Matt’s negligent conduct caused her injury rather than

consisting of the claim itself. See Metropolitan Life, 225 F.3d at 512–13

(holding that the operational task was essential even though government’s

notification of its negligence in performing the operational task could have

cured the harm). Indeed, Morris’s claim that Officer Matt failed to seek a

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warrant with dispatch and to secure Malveaux’s arrest despite her duty to do

so is conceptually distinct from the breach of the duty to use due care in

communication — Officer Matt, under the facts alleged, would have failed to

discharge her duty to act swiftly to Morris, even if Officer Matt had never

communicated to Morris that she should stay home. Because these duties do

not depend on each other, the complaint’s phrasing does not change the fact

that Morris’s claims stem from Officer Matt’s breach of a duty distinct from

misrepresentation.

Since the essence of the facts on which Morris bases her claim is not

misrepresentation, the district court erred in holding that the

misrepresentation exception applies.

II. Discretionary Function Exception

The other relevant FTCA exception concerns discretionary

functions. The discretionary function exception insulates the United States

from “[a]ny claim . . . based upon the exercise or performance or the failure

to exercise or perform a discretionary function or duty . . . , whether or not

the discretion involved be abused.” 28 U.S.C. § 2680(a). Though the

FTCA generally represents “Congress’ willingness to impose tort liability”

on the federal government, the discretionary function exception manifests its

concomitant objective of “protect[ing] certain governmental activities from

exposure to suit by private individuals.” United States v. Varig Airlines, 467

U.S. 797, 808 (1984). “The basis for the discretionary function exception

was Congress’ desire 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.” Gonzalez v. United States, 851 F.3d

538, 543 (5th Cir. 2017) (quotation marks omitted) (quoting Berkovitz ex rel.

Berkovitz v. United States, 486 U.S. 531, 536–37 (1988)).

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The discretionary function analysis is governed by a two-part test.

First, the action must, of course, be committed to the discretion of a

government actor, such that the act “involves an element of judgment or

choice.” Berkovitz, 486 U.S. at 536. Second, the complained-of “conduct

must be ‘of the kind that the discretionary function exception was designed

to shield.’” Barron v. United States, 31 F.4th 347, 349–50 (5th Cir. 2022)

(quoting United States v. Gaubert, 499 U.S. 315, 322–23 (1991)). “The

exception, properly construed, therefore protects only governmental actions

and decisions based on considerations of public policy.” Berkovitz, 486 U.S.

at 537. More precisely, the critical question in the second part of the test is

whether the officer’s decision was “susceptible to policy analysis.” Spotts v.

United States, 613 F.3d 559, 572 (2010). Whether the officer actually or

subjectively engaged in policy analysis is accordingly irrelevant. Id.

Also, we must remember that the “nature of the conduct, rather than

the status of the actor, . . . governs whether the discretionary function

exception applies in a given case.” Varig Airlines, 467 U.S. at 813. Although

tasks that implement a policy decision may at times lack an element of policy

judgment, tasks conducted at the “operational level” do not categorically fall

outside of the discretionary function exception — we must look to whether

the particular action was susceptible to policy judgment. Gaubert, 499 U.S.

at 326; see id. at 335–36 (Scalia, J., concurring in part). This is no simple

task: Nearly every governmental decision requires the consideration of

policy in some manner. See id. at 336–37 (Scalia, J., concurring in part).

Accordingly, the task we focus on — determining whether “the challenged

acts . . . are of the nature and quality that Congress intended to shield from

tort liability,” Varig Airlines, 467 U.S. at 813 — requires a “case-by-case

approach,” see Shanksy v. United States, 164 F.3d 688, 693 (1st Cir. 1999).

As for actually applying the test, the resolution of its first step inflects

the analysis of the second, in that a regulation conferring discretion on a

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federal employee creates a “strong presumption” that carrying out the

regulation’s commands implicates the “same policies which led to the

promulgation of the regulations” in the first place. Gaubert, 499 U.S. at 324.

This presumption may nonetheless be overcome 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.” Id. at 324–25.

Here, we find it necessary to consider only the second step: Whether

Officer Matt’s actions are in the category that the discretionary function

exception is designed to shield. Even if we assume that Officer Matt’s

actions were discretionary, i.e., that the first step is satisfied, Morris has

alleged sufficient facts to support a finding that the kind of conduct

undertaken by Officer Matt was not grounded in the policy of the regulatory

regime and thus not susceptible to policy analysis.

The United States contends that the array of policy considerations

listed in the Eastern District of Texas Post-Conviction Supervision Policy

and Procedure Manual (EDTX Manual) demonstrates that Officer Matt’s

conduct was susceptible to policy considerations.3 The United States cites

several policy considerations listed in the EDTX Manual, which requires

officers to consider, in deciding what strategy to take in response to violations

of conditions of probation, the following factors among others: that

interventions be “sufficient, but not greater than necessary, to achieve

sentencing purposes and the objectives of supervision”; that a parole

officer’s conduct must be tailored to the “defined objectives of supervision,

as determined by the initial and ongoing assessments”; and that officers must

be “guided by the need to protect the community, promote compliance with

_____________________

3

The parties agree that this is the relevant “regulatory framework.”

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court orders, and facilitate positive change.” The United States argues that,

because probation officers must “balance the policies of achieving sentencing

purposes with achieving the objectives of supervision” using the above

factors, Officer Matt’s actions were necessarily susceptible to policy analysis.

Morris counters that Officer Matt’s response did not “involve

considerations of public policy,” even in theory. Morris contends that

Officer Matt had already come to the “conclusion that [Malveaux was] a

danger to the public, ha[d] made a homicidal threat, and ha[d] engaged in

second-degree felonies”; in addition, Officer Matt had also decided on the

“appropriate response.” Morris asserts that, because the tort was

committed in the performance of an “operational function,” and the

planning activity that involved policy considerations had already occurred,

her claims are not barred by the FTCA.4

The caselaw provides considerable guidance for resolving this dispute.

This court determined that the decision to provide certain “Emergency

Housing Units” to victims of Hurricanes Katrina and Rita was a policy

judgment. In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (La.

Plaintiffs), 713 F.3d 807, 811 (5th Cir. 2013). Decisions about “when, where,

and how to allocate limited resources within the exigencies of an emergency”

are necessarily saturated with policy considerations and thus precisely the

type of decisions the discretionary function exception is designed to insulate.

Id. (quoting Freeman v. United States, 556 F.3d 326, 340 (5th Cir. 2009)).

What compelled the outcome was that the decision the plaintiffs alleged to

_____________________

4

In support of this argument, Morris cites several cases decided employing the

now-defunct operational–planning conduct dichotomy. See, e.g., Hayes v. United States,

899 F.2d 438, 450–51 (5th Cir. 1990). The Supreme Court has definitively denounced this

dichotomy. Gaubert, 499 U.S. at 325–26. We accordingly reject this aspect of Morris’s

argument below.

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be the cause of their injuries was itself imbued with and inseparable from

policy considerations. See id. at 810–11.

In a different yet related context, this court held that FEMA’s

decision not to attach stairs to emergency mobile trailer homes it offered for

sale was precisely the kind of policy decision for which Congress sought to

allow suits in tort. Gibson v. United States, 809 F.3d 807, 816–17 (5th Cir.

2016). In Gibson, this court described the decision of whether to include

stairs as a “mundane, administrative, garden-variety, housekeeping

problem.” Id. (quoting Gotha v. United States, 115 F.3d 176, 181 (3d Cir.

1997)). Fundamentally, the types of policy considerations inherent to

running a commercial business are distinct from those that the FTCA

shields from judicial scrutiny. Id. at 816. On the other hand, had Gibson

alleged the tort was the result of the decision even to operate as a business,

the conduct would have fallen into the discretionary function exception. See

id. The proximity between the decision to outfit the trailer homes with stairs

and the decision to sell the mobile homes in the first place, however, was

insufficient to clothe the claim in the discretionary function exception. The

“mere association of a decision with regulatory concerns is not enough;

exempt decisions are those fraught with . . . public policy considerations.”

Id. (quoting Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995)). For example,

“negligent driving by a government official does not implicate the kinds of

policy considerations protected by the exception,” even if the reason for the

travel is to make a policy decision at the destination, since the official did not

exercise the sorts of policy judgment shielded by the exception in performing

the action from which the tort arose. See id. at 814.

In another one of our cases, we held that the United States Forest

Service’s actions were susceptible to policy considerations in determining

how to provide sufficient notice of a trail closure. Gonzalez, 851 F.3d at 542,

551. The trail had been closed for maintenance arising out of the erection of

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an unauthorized bridge near the trail. Id. at 541. The Forest Service had

posted a sign on the trailhead bulletin board announcing the trail’s closure on

an 8.5” by 11” sheet of paper. Id. at 542. Gonzalez, the plaintiff, proceeded

to ride a mountain bike on the trail and was injured after using an

unauthorized bike ramp that was neither constructed by nor known to Forest

Service employees. Id. at 541. We held that the Forest Service’s actions were

animated by, and certainly susceptible to, policy considerations, including

the decisions (1) to allocate maintenance resources in a particular manner,

given the vast quantities of land subject to Forest Service jurisdiction, and (2)

how best to warn the public of a trail closure. Id. at 547–550. Crucially, the

tortious conduct was the locus of the Forest Service’s balancing of competing

policy considerations. Id. at 548.

Decisions made prior to the tortious conduct that are not the actual

tortious conduct may nonetheless influence whether a particular decision is

susceptible to policy judgment. The D.C. Circuit held that the failure to post

adequate traffic signs on Beach Drive in Washington, D.C., was not

susceptible to the kind of policy considerations with which the FTCA is

concerned. Cope, 45 F.3d at 452. Though the court held that the plaintiff’s

first claim — failure to maintain the road surface properly — fell within the

discretionary function exception, it held that the second claim, which

asserted that the government’s decisions about “where and how” it posted

signs “warning of dangerous road conditions,” survived the discretionary

function exception. Id. at 446. The court held that the sign-placement

decisions were subject to discretion, but it was not discretion “fraught with

public policy considerations.” Id. at 451. There, the agency had elected, by

placing an abundance of other warning signs along the road, to maintain the

road “in a manner more amenable to commuting through nature than

communing with it. Having done so, and having taken steps to warn users of

dangers inherent in that use, the Park Service [could not] argue that its failure

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to ensure that those steps [we]re effective involve[d] protected

‘discretionary’ decisions.” Id. at 452. The court did not come to this

conclusion because it drew a distinction between policy design and policy

implementation, but because the Park Service’s prior policy decisions

deprived this particular decision of its policy content. See id. at 449, 451–52.

Since the policy decision did not coincide with the tortious conduct, prong

two was not satisfied. See id. at 452.

The Supreme Court has also mandated that courts scrutinize whether

the conduct susceptible to policy decisions shares the same vehicle as the

tortious conduct. In its leading step two case, Gaubert, the Court

distinguished between scenarios where the government actor retained

“discretion to exercise in deciding how to carry out” a task and those in

which the implementation of a previously made policy decision required no

further policy choices. Gaubert, 499 U.S. at 325–26. The Supreme Court

illustrated this understanding in Berkovitz when discussing the facts of Indian

Towing Co. v. United States, 350 U.S. 61 (1955). The Court contrasted the

“decision to undertake and maintain [a] lighthouse,” which was steeped in

policy, with the “failure to maintain the lighthouse in good condition,” which

involved no policy judgment under the FTCA at all. Berkovitz, 486 U.S. at

538 n.3.5 We agree with a leading treatise that “the execution and

implementation of policy or planning decisions normally are not covered by

the exception (unless the implementing federal officials are themselves

_____________________

5

Indian Towing is on uncertain footing in the realm of the discretionary function

exception due to the fact it was not even a discretionary function exception case. See, e.g.,

Baum v. United States, 986 F.2d 716, 723 (4th Cir. 1993). The Supreme Court has

nonetheless found Indian Towing to be a helpful illustration of whether an act is susceptible

to policy analysis. Berkovitz, 486 U.S. at 538 n.3; Gaubert, 499 U.S. at 326. Thus, we treat

the Supreme Court’s use of Indian Towing as such, but no more.

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vested with discretion).” 2 Jayson & Longstreth, Handling

Federal Tort Claims § 12.05[1] (2025).

In the past, we adhered to a rigid distinction between operational

conduct and planning conduct, in which the discretionary function exception

categorically did not apply to the former. See, e.g., Denham v. United States,

834 F.2d 518, 520–21 (5th Cir. 1987). The Supreme Court abolished this

dichotomy in Gaubert. 499 U.S. at 325–26. Nevertheless, Gaubert does not

require us to discard all evidence of conduct’s susceptibility to policy analysis

when that evidence shows that an earlier policy decision deprives a later-in-

time decision of policy content. See id. Indeed, it was the wooden quality of

the dichotomy that led to its demise, not its complete lack of probative value.

See id.; id. at 335–36 (Scalia, J., concurring in part) (explaining that the

“dichotomy” is invalid, but “there is something to” the often close

relationship between the level at which the decision was made and whether

policy judgment was exercised). The problem with the old “mechanistic

application of these frameworks” is that they “encourage[d] courts to avoid

the proper analysis” — whether the conduct at issue, based on its “nature

and quality,” was susceptible to policy judgment. Cope, 45 F.3d at 448–49

(quoting Varig Airlines, 467 U.S. at 813).

Indeed, the nature and quality of conduct can be influenced by

previous actions and decisions, and to evaluate whether a claim falls under

the discretionary function exception at times will require consideration of

evidence that a previous policy decision deprived an implementation decision

of its policy content. Gaubert dictates both that we refuse to place conduct

in any “semantic pigeonhole” and that we determine “whether the decision

is ‘fraught with’ economic, political, or social judgments.” See id. at 449–50.

These principles are not in tension. Rather, they direct us to embrace the use

of probative evidence to determine whether the suit second-guesses the

Government’s policy decisions. See Gaubert, 499 U.S. at 325–26. In this

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sense, whether to engage in the conduct may involve a policy judgment, but it

is not necessarily true that how to carry out that decision does as well: it

depends on the factual context. See Fair v. United States, 234 F.2d 288, 294

(5th Cir. 1956) (holding Air Force’s decision to release airman with known

“homicidal tendencies” without giving certain promised warnings to victim

did not fall within the exception because the tortious action was the failure

merely to carry out a decision without any further occasion for policy

deliberation); Payton v. United States, 679 F.2d 475, 480–81 (5th Cir. Unit B

1982) (en banc) (holding that a claim against the Government for its failure to

properly treat a dangerous and mentally ill inmate after undertaking such care

did not fall into the exception, but a tort claim against the parole board for its

release of the prisoner in the first place did fall into the exception).6

Our understanding of Gaubert accords with Justice Scalia’s

exposition of the majority as laid out in his concurrence, in which he noted

the majority’s rejection of a mechanistic approach but recognized that the

position of the actor and the operational versus planning status of the

decision may possess probative, though not conclusive, value. Gaubert, 499

U.S. at 336–37 (Scalia, J., concurring in part).

We now turn to the case before us.

In determining whether Morris overcomes the presumption that

Officer Matt’s failure to seek a warrant immediately was susceptible to policy

judgment, we must look to whether Morris alleged sufficient facts to support

a finding that Officer Matt’s failure to act after undertaking to secure a

warrant with expedience is not “the kind of conduct that can be said to be

_____________________

6

Empower Texans, Inc. v. Geren, 977 F.3d 367, 372 n.2 (5th Cir. 2020) (explaining

that Unit B opinions, issued in 1981 by panels of judges formed solely of those who would

serve on the future Eleventh Circuit, are precedential in the Fifth Circuit).

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grounded in the policy of the regulatory regime.” Id. at 325. First, then, we

pinpoint the policies that inhabit the regulatory regime.

The Government argues that enforcement decisions regarding

supervised release are imbued with public policy, in part, because the

“standard for selecting appropriate strategies in response to noncompliance

is that they be sufficient, but not greater than necessary, to achieve

sentencing purposes and the objectives of supervision.” The EDTX Manual

also provides probation officers with an “intervention framework,” which

provides a taxonomy of the different degrees of parole violations and outputs

the type of response that a violation of that degree may warrant, though it

does preserve significant discretion. Importantly, this framework serves as a

“non-exhaustive list” that “illustrates potentially appropriate responses,

suggested time frames, and associated staffing, approval, and reporting

processes.” The manual stresses that the “collaborative professional

decision-making process” it lays out requires navigating a tangle of policy

factors to come to a satisfactory intervention in any individual scenario.

Probation officers may well have to make decisions implicating a

sensitive balance of policy factors on a regular basis. Cf., e.g., Ochran, 117

F.3d at 501–04. We agree with the United States that Officer Matt made a

policy-laden — and, by all accounts, sensible — decision to seek a warrant

immediately after hearing about Malveaux’s troubling behavior. Indeed, the

claim is that Officer Matt made the quite valid decision to seek an immediate,

expedited warrant predicated on the extreme risk to Morris, but then

negligently failed to do so. In essence, the tort is the allegedly negligent

performance by Officer Matt after her discretionary decision to secure a

warrant posthaste.

The standards the Government cites are inapplicable in this case.

Officer Matt had already determined which actions should be taken that

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would be “sufficient, but not greater than necessary, to achieve” the goals of

punishment, and the details of the intervention were already “directed

toward[]” and “guided by” the “defined objectives of supervision” and the

“need to . . . protect the community.” She also engaged in this very policy

analysis when she decided on the timeline for these actions: immediately.

This combination of policy considerations would perhaps have been

sufficient if the alleged tort was, itself, the decision of which course of action

to take in effecting supervisory goals or was conduct the performance of

which was bound up in making a judgment call implicating these same policy

factors.7 Rather, Officer Matt decided to seek a warrant on an expedited basis

— a routine process that would, at least, involve informing the court and

other proper federal authorities of imminent danger that Malveaux posed to

Morris. Yet Officer Matt did not act after having earlier alerted the district

court of the far less urgent facts of Malveaux’s violating the terms of his

supervised release after leaving the residential reentry facility.

Though a probation officer’s task is often steeped in policy when

deciding what intervention to perform, the failure to take any action for

several days when already having decided to pursue a warrant on an

expedited basis because the probationer poses a significant safety threat to an

innocent is not one such action. “[M]ere association of a decision with

regulatory concerns is not enough; exempt decisions are those fraught

with . . . public policy considerations.” Gibson, 809 F.3d at 816 (quoting

_____________________

7

A prime example of the latter is the Supreme Court’s Varig Airlines case. In that

case, the Federal Aviation Administration, according to the plaintiffs, negligently inspected

an airplane, a defect of which resulted in the asphyxiation deaths of 124 people on board.

Varig Airlines, 467 U.S. at 800–01. The Court held that the “spot-check” inspection that

the agency performed requires, in its implementation, “[c]onformity determination[s]”

that necessarily involve a variety of judgment calls motivated by a host of policy factors. Id.

at 816–20.

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Cope, 45 F.3d at 449). The proximity of Officer Matt’s inaction to policy

decisions does not avail the United States.

Since Morris has shown that the allegedly tortious conduct here was

not coincident with the policy considerations the Government pinpoints, she

has pled facts sufficient to support a finding that Officer Matt’s alleged

negligence is not grounded in the policy of the regulatory regime. See id.;

Cope, 45 F.3d at 451–52.

We emphasize that this is an unusual case in several respects.

Probation officers face thorny situations in which the best solution is unclear.

We do not today create liability every time a federal employee negligently

implements a policy. The discretionary function exception still shields the

government from suit for decisions of a probation officer or other official to

take or not to take a particular course of action, given that the official’s

conduct is susceptible to the “permissible exercise of policy judgment.” See

Ochran, 117 F.3d at 506 (citation omitted). Rather, we hold that the

allegations of Officer Matt’s negligence and negligent undertaking — taking

the facts in Morris’s pleadings as true for purposes of the jurisdictional

inquiry — involved conduct that, according to its “nature and quality,” was

not susceptible to policy analysis, in context of this case’s larger factual

tapestry. See Varig Airlines, 467 U.S. at 813. Because Officer Matt’s actions

were not susceptible to policy analysis, the discretionary function exception

does not apply here.

REVERSED and REMANDED.

27