NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SHAD HARRISON, in his capacity as No. 24-2764 Personal Representative of The Estate of D.C. No. Johnathon Harrison, 2:23-cv-00334-HL Plaintiff - Appellant, MEMORANDUM* v.
VALE OREGON IRRIGATION DISTRICT, a local government entity; TY KING; UNITED STATES BUREAU OF RECLAMATION, a federal government entity,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Andrew D. Hallman, Magistrate Judge, Presiding
Submitted December 4, 2025** Portland, Oregon
Before: McKEOWN and SUNG, Circuit Judges, and FITZWATER, District Judge.***
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney A. Fitzwater, United States District Judge for This wrongful death action arises from a motor vehicle accident that
occurred in the course of Johnathon Harrison’s employment for the Vale Oregon
Irrigation District (“the District”), an independent contractor that operates
irrigation works on federal property. Harrison’s father, acting as a representative
of his son’s estate (“Plaintiff”), brings state-law claims against the United States,
the District, and Harrison’s supervisor. In relevant part, Plaintiff claims the United
States negligently failed to ensure that the District complied with workplace safety
laws. The district court dismissed Plaintiff’s claims against the United States with
prejudice for lack of subject matter jurisdiction, concluding that the “discretionary
function” exception to the Federal Tort Claims Act (“FTCA”) barred the claims.
“We review de novo the district court's decision to grant a motion to dismiss for
lack of subject matter jurisdiction under the discretionary function exception.”
Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). We affirm.
1. “The Federal Tort Claims Act is a limited waiver of sovereign immunity,
making the Federal Government liable to the same extent as a private party for
certain torts of federal employees acting within the scope of their employment.”
United States v. Orleans, 425 U.S. 807, 813 (1976). “However, the FTCA’s
waiver of immunity is limited by a number of statutory exceptions.” Nurse v.
United States, 226 F.3d 996, 1000 (9th Cir. 2000). “If appellant’s causes of action
the Northern District of Texas, sitting by designation.
2 24-2764 fall within one or more of these exceptions, then the federal courts lack subject
matter jurisdiction to hear [his] claims.” Id. The “discretionary function”
exception exempts from liability claims “based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the part of
a federal agency or an employee of the Government . . . .” 28 U.S.C. § 2680(a).
Challenged acts are covered by the exception if they “involve ‘an element of
judgment or choice,’” Nieves Martinez v. United States, 997 F.3d 867, 876 (9th
Cir. 2021) (quoting Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996)),
and if “that judgment is of the kind that the discretionary function exception was
designed to shield.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536
(1988).
To determine whether the challenged acts involve “an element of judgment
or choice,” this Court “examine[s] the applicable government policies to see if they
authorize or imply discretion or if they mandate specific duties.” Lam v. United
States, 979 F.3d 665, 673 (9th Cir. 2020). Reviewing de novo, we conclude the
discretionary function exception applies to Plaintiff’s claims because neither the
contract between the District and the United States, nor the Bureau of Reclamation
Health & Safety Standards (“BOR Standards”) impose a non-discretionary duty to
supervise the District’s operation of the irrigation works. The contract transfers the
operation and maintenance of the irrigation works to the District. And while it
3 24-2764 grants the United States rights to inspect, make necessary repairs to, and assume
temporary control over the irrigation works in certain circumstances, it does not
require the United States to exercise those rights. The BOR Standards impose
obligations on organizations and contractors working or operating facilities on
federal land, but they do not require the BOR to implement or enforce safety
standards. Neither document imposes a duty by implication, for “regulations that
merely empower[]” an agency without issuing a “a specific mandatory directive”
do not impose a non-discretionary duty for purposes of the discretionary function
exception. Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir.
1989).
2. Plaintiff forfeited his challenge to the second element of the discretionary
function exception analysis—that the “judgment [afforded to the United States] is
of the kind that the discretionary function exception was designed to shield,” Lam,
979 F.3d at 673-74 (citation omitted)—when he failed to raise the issue in his
opposition to the motion to dismiss or in his opening brief. See Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). Accordingly, his claims against
the United States fall within an exception to the FTCA, and the federal courts lack
subject jurisdiction over the action. Nurse v. United States, 226 F.3d at 1000.1
1 Because we affirm the district court’s dismissal of Plaintiff’s claims on jurisdictional grounds, we do not address whether the district court erred when it
4 24-2764 3. Plaintiff argues that dismissal on jurisdictional grounds is improper because
the jurisdictional facts are intertwined with the merits of his claims. A district
court erroneously dismisses an action under Rule 12(b)(1) if “the jurisdictional
issue and substantive issues in th[e] case are so intertwined that the question of
jurisdiction is dependent on the resolution of factual issues going to the merits.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1040 (9th Cir. 2004). But the
exception applies where the claim is based on a discretionary function, “whether or
not the discretion involved be abused.” 28 U.S.C. § 2680(a). And whether federal
employees were negligent in their execution of a discretionary function is
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SHAD HARRISON, in his capacity as No. 24-2764 Personal Representative of The Estate of D.C. No. Johnathon Harrison, 2:23-cv-00334-HL Plaintiff - Appellant, MEMORANDUM* v.
VALE OREGON IRRIGATION DISTRICT, a local government entity; TY KING; UNITED STATES BUREAU OF RECLAMATION, a federal government entity,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Andrew D. Hallman, Magistrate Judge, Presiding
Submitted December 4, 2025** Portland, Oregon
Before: McKEOWN and SUNG, Circuit Judges, and FITZWATER, District Judge.***
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney A. Fitzwater, United States District Judge for This wrongful death action arises from a motor vehicle accident that
occurred in the course of Johnathon Harrison’s employment for the Vale Oregon
Irrigation District (“the District”), an independent contractor that operates
irrigation works on federal property. Harrison’s father, acting as a representative
of his son’s estate (“Plaintiff”), brings state-law claims against the United States,
the District, and Harrison’s supervisor. In relevant part, Plaintiff claims the United
States negligently failed to ensure that the District complied with workplace safety
laws. The district court dismissed Plaintiff’s claims against the United States with
prejudice for lack of subject matter jurisdiction, concluding that the “discretionary
function” exception to the Federal Tort Claims Act (“FTCA”) barred the claims.
“We review de novo the district court's decision to grant a motion to dismiss for
lack of subject matter jurisdiction under the discretionary function exception.”
Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). We affirm.
1. “The Federal Tort Claims Act is a limited waiver of sovereign immunity,
making the Federal Government liable to the same extent as a private party for
certain torts of federal employees acting within the scope of their employment.”
United States v. Orleans, 425 U.S. 807, 813 (1976). “However, the FTCA’s
waiver of immunity is limited by a number of statutory exceptions.” Nurse v.
United States, 226 F.3d 996, 1000 (9th Cir. 2000). “If appellant’s causes of action
the Northern District of Texas, sitting by designation.
2 24-2764 fall within one or more of these exceptions, then the federal courts lack subject
matter jurisdiction to hear [his] claims.” Id. The “discretionary function”
exception exempts from liability claims “based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the part of
a federal agency or an employee of the Government . . . .” 28 U.S.C. § 2680(a).
Challenged acts are covered by the exception if they “involve ‘an element of
judgment or choice,’” Nieves Martinez v. United States, 997 F.3d 867, 876 (9th
Cir. 2021) (quoting Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996)),
and if “that judgment is of the kind that the discretionary function exception was
designed to shield.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536
(1988).
To determine whether the challenged acts involve “an element of judgment
or choice,” this Court “examine[s] the applicable government policies to see if they
authorize or imply discretion or if they mandate specific duties.” Lam v. United
States, 979 F.3d 665, 673 (9th Cir. 2020). Reviewing de novo, we conclude the
discretionary function exception applies to Plaintiff’s claims because neither the
contract between the District and the United States, nor the Bureau of Reclamation
Health & Safety Standards (“BOR Standards”) impose a non-discretionary duty to
supervise the District’s operation of the irrigation works. The contract transfers the
operation and maintenance of the irrigation works to the District. And while it
3 24-2764 grants the United States rights to inspect, make necessary repairs to, and assume
temporary control over the irrigation works in certain circumstances, it does not
require the United States to exercise those rights. The BOR Standards impose
obligations on organizations and contractors working or operating facilities on
federal land, but they do not require the BOR to implement or enforce safety
standards. Neither document imposes a duty by implication, for “regulations that
merely empower[]” an agency without issuing a “a specific mandatory directive”
do not impose a non-discretionary duty for purposes of the discretionary function
exception. Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir.
1989).
2. Plaintiff forfeited his challenge to the second element of the discretionary
function exception analysis—that the “judgment [afforded to the United States] is
of the kind that the discretionary function exception was designed to shield,” Lam,
979 F.3d at 673-74 (citation omitted)—when he failed to raise the issue in his
opposition to the motion to dismiss or in his opening brief. See Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). Accordingly, his claims against
the United States fall within an exception to the FTCA, and the federal courts lack
subject jurisdiction over the action. Nurse v. United States, 226 F.3d at 1000.1
1 Because we affirm the district court’s dismissal of Plaintiff’s claims on jurisdictional grounds, we do not address whether the district court erred when it
4 24-2764 3. Plaintiff argues that dismissal on jurisdictional grounds is improper because
the jurisdictional facts are intertwined with the merits of his claims. A district
court erroneously dismisses an action under Rule 12(b)(1) if “the jurisdictional
issue and substantive issues in th[e] case are so intertwined that the question of
jurisdiction is dependent on the resolution of factual issues going to the merits.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1040 (9th Cir. 2004). But the
exception applies where the claim is based on a discretionary function, “whether or
not the discretion involved be abused.” 28 U.S.C. § 2680(a). And whether federal
employees were negligent in their execution of a discretionary function is
irrelevant to the question of whether they had discretion to act in the first instance.
See Kennewick Irr. Dist., 880 F.2d at 1029 (“[N]egligence is simply irrelevant to
the discretionary function inquiry.”). Accordingly, here, the merits analysis—
focused on whether the United States negligently supervised the District—is
irrelevant to the discretionary function inquiry, which concerns whether the United
States had a duty to supervise in the first instance. Therefore, dismissal on
jurisdictional grounds is not improper.
4. The district court did not err when it denied Plaintiff leave to amend on
futility grounds. “When the district court denies leave to amend because of futility
concluded that Plaintiff failed to state a claim against the United States under Oregon law.
5 24-2764 of amendment, we will uphold such denial if ‘it is clear, upon de novo review, that
the complaint would not be saved by any amendment.’” Carvalho v. Equifax Info.
Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010) (citation omitted). Accordingly,
when claims are dismissed as barred by FTCA exceptions, amendment would be
futile if the plaintiff cannot “redraft [his] claims to avoid the exceptions to the
FTCA.” Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988). The district
court correctly concluded that, because the discretionary function exception bars
claims related to the United States’ oversight of the District, additional allegations
of negligent supervision would not avoid the exception. Although Plaintiff argues
that he could present allegations that demonstrate the United States’ duty to
supervise, he has not specifically indicated what those allegations would be.
Because Plaintiff cannot “redraft [his] claims to avoid the exceptions to the
FTCA,” amendment would be futile and dismissal with prejudice was appropriate.
AFFIRMED.
6 24-2764