Kransky v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2025
• Docket: 24-2131
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JENNIFER KRANSKY, No. 24-2131 D.C. No. Plaintiff - Appellant, 1:23-cv-00116-SPW v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted March 24, 2025 Seattle, Washington

Before: McKEOWN and OWENS, Circuit Judges, and KENDALL, District Judge.**

Jennifer Kransky appeals from the district court’s dismissal of her tort

claims brought against the United States under the Federal Tort Claims Act

(FTCA). As the parties are familiar with the facts, we do not recount them here.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo whether sovereign immunity deprives the district court

of subject matter jurisdiction over tort claims against the United States. DaVinci

Aircraft, Inc. v. United States, 926 F.3d 1117, 1122 (9th Cir. 2019). We take the

complaint’s factual allegations as true, draw reasonable inferences in the plaintiff’s

favor, and ask “whether the allegations are sufficient as a legal matter to invoke the

court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).

1. We affirm the district court’s dismissal of the negligent and intentional

infliction of emotional distress claims (“the IED claims”) because they fall within

the FTCA’s intentional tort exception. That exception excludes claims “arising out

of” torts enumerated in § 2680(h)—including libel and slander—from the FTCA’s

waiver of sovereign immunity. 28 U.S.C. § 2680(h); Millbrook v. United States,

569 U.S. 50, 52 (2013).

The district court correctly reasoned that the IED claims arise out of the

defamation claim. Under Montana law, defamation is “effected by” libel or

slander, two torts enumerated in § 2680(h). Mont. Code Ann. § 27-1-801. The

allegedly defamatory statements of VA officials are “essential” to the IED claims,

because, by her own account, these statements precipitated the investigation of her

nursing license that incited her fear for her career. Thomas-Lazear v. FBI, 851

F.2d 1202, 1207 (9th Cir. 1988). Thus, Kransky’s IED claims are based on

2 24-2131 conduct that also “constitute[s] a claim” for an enumerated tort. DaVinci Aircraft,

926 F.3d at 1123.

2. We affirm the district court’s dismissal of the malicious prosecution,

abuse of process, and retaliation claims, albeit on different grounds. “We may

affirm a district court’s judgment on any ground supported by the record, whether

or not the decision of the district court relied on the same grounds or reasoning we

adopt.” Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003).

Malicious prosecution and abuse of process are enumerated torts under 28

U.S.C. § 2680(h). Kransky’s retaliation claim arises from her malicious

prosecution claim because the two claims are based on identical underlying

conduct: the VA’s investigation of alleged misconduct involving Kransky and

report to the Montana Board of Nursing. To the extent Kransky’s malicious

prosecution, abuse of process, and retaliation claims arise from the non-law

enforcement employees’ conduct, all three claims are barred by the intentional tort

exception.

Insofar as these claims are based on the conduct of VA Office of Inspector

General agents Huntoon and Jackson, we consider them under § 2680(h)’s law

enforcement proviso, which excludes claims based on the conduct of law

3 24-2131 enforcement officers from the intentional tort exception. 1 Millbrook, 569 U.S. at

54–55. Section 2680(a)’s discretionary function exception, however,

independently excludes claims based on the conduct of federal officers—including

that of federal law enforcement officers—from the FTCA’s waiver of sovereign

immunity, where such claims are “based upon the exercise” of “a discretionary

function[.]” 28 U.S.C. § 2680(a); Gasho v. United States, 39 F.3d 1420, 1435 (9th

Cir. 1994) (noting that the exception applies even where the conduct involves an

intentional tort actionable under § 2680(h)). Because sovereign immunity

implicates our jurisdiction, we consider whether this exception excludes these

claims from the FTCA’s waiver. See Roberts v. United States, 887 F.2d 899, 900

(9th Cir. 1989).

The agents’ alleged conduct—reliance on unverified, false statements in

investigating Kransky and reporting her to the Nursing Board—falls within the

discretionary function exception.2 See Nieves Martinez v. United States, 997 F.3d

867, 876 (9th Cir. 2021) (outlining two-part test). First, that conduct—assessing,

summarizing, and reporting on information—is discretionary because it “involves

1 VA-OIG agents are law enforcement officers under § 2680(h) because they are authorized to execute arrests. 28 U.S.C. § 2680(h); 5 U.S.C. §§ 406(f)(1), (f)(3). 2 Although Kransky asserted at oral argument that additional discovery is needed on this issue, Kransky conceded that she already possessed the agents’ letter. The relevant VA policies and regulations are also in the public record, and Kransky cited the applicable VA directive in her complaint.

4 24-2131 an element of judgment or choice.” Berkovitz by Berkovitz v. United States, 486

U.S. 531, 536 (1988). Second, the conduct involves the policy-grounded judgment

“that the discretionary function exception was designed to shield.” Id. at 536.

Investigations, including the decision to report an employee to a state licensing

board, require “officers to consider relevant political and social circumstances in

making decisions about the [investigation’s] nature and scope . . . .” Sabow v.

United States, 93 F.3d 1446, 1453 (9th Cir. 1996). Here, the public policy goals

were explicit: the VA’s reporting guidelines required assessment of whether

“substantial evidence supports a reasonable conclusion that” the employee “so

significantly failed to meet . . . standards of clinical practice as to raise reasonable

concern for the safety of patients or the community.” VHA Directive 1100.18 §§

4, 11(c), 13; see also 38 C.F.R. § 47.2; 63 F.R. 23664-01.

Finally, although Kransky alleges that the agents fabricated evidence, she

adduces no facts that permit such an inference. Cf. Myles v. United States, 47

F.4th 1005, 1012–14 (9th Cir. 2022).

AFFIRMED.

5 24-2131