Paul Abbott v. United States ( 2023 )


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  •                                 RECOMMENDED FOR PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 23a0184p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    ┐
    PAUL W. ABBOTT, et al. (22-5492); MICHAEL B. REED,
    │
    individually, as surviving spouse and next of kin of
    │
    Constance M. Reed, deceased, and as surviving parent of
    │
    Chloe E. Reed and Lillian D. Reed, deceased, et al. (22-
    │
    5493); BRITTANY N. HYRE ANCULLE, et al. (22-5494);              >         Nos. 22-5492 /5493 /5494 /5495/
    JACKIE SUE BARNES, et al. (22-5495); BRITTANY ADKINS,           │             5499 /5513
    et al. (22-5499); JAMES CARL VANCE, individually, and           │
    as surviving spouse and next of kin of May Evelyn               │
    Norred Vance, deceased (22-5513),                               │
    Plaintiffs-Appellants,        │
    │
    v.                                                       │
    │
    UNITED STATES OF AMERICA,                                       │
    Defendant-Appellee.         │
    ┘
    Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.
    Nos. 18-cv-201; 18-cv-308; 18-cv-310; 20-cv-149; 20-cv-283—J. Ronnie Greer, District Judge.
    Argued: January 25, 2023
    Decided and Filed: August 17, 2023
    Before: CLAY, WHITE, and THAPAR, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Benjamin C. Glassman, SQUIRE PATTON BOGGS (US) LLP, Cincinnati, Ohio,
    for Appellants. Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF JUSTICE,
    Washington, D.C., for Appellee. ON BRIEF: Gordon Ball, GORDON BALL LLC, Nashville,
    Tennessee, Diana L. Martin, COHEN MILSTEIN SELLERS & TOLL PLLC, Palm Beach
    Gardens, Florida, for Appellants. Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF
    JUSTICE, Washington, D.C., for Appellee.
    WHITE, J., delivered the opinion of the court. CLAY, J. (pp. 21–30), delivered a
    separate concurring opinion. THAPAR, J. (pp 31–32), delivered a separate concurring opinion.
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    5494/5495/5499/5513
    _________________
    OPINION
    _________________
    HELENE N. WHITE, Circuit Judge. Plaintiffs-Appellants appeal the dismissal of their
    claims under the Federal Torts Claims Act (FTCA) for damages caused by the National Park
    Service’s failure to warn of an uncontrolled wildfire (“Fire”) that escaped from Great Smoky
    Mountains National Park (the “Park”). They appeal the denial of their motion to alter or amend
    the judgment under Federal Rule of Civil Procedure 59 as well. We vacate and remand.
    I.
    A.
    On November 23, 2016, a slow-moving fire covering less than an acre was discovered by
    the Fire Management Officer of the Park, Greg Salansky. Due to the upcoming Thanksgiving
    holiday, the Park’s superintendent and most of the staff were away, and Salansky undertook to
    manage nearly every aspect of the Park’s fire response, from monitoring the Fire to organizing
    firefighting efforts and emergency notifications.
    On the morning of November 24, Salansky and four other National Park Service (“NPS”)
    firefighters returned to the scene. Salansky observed that the Fire had not spread since the night
    before but determined that building a fire line would be impossible in any event due to the steep
    terrain.1 Accordingly, “Salansky opted to let the [F]ire burn,” using the natural terrain to
    “contain the Fire.” Reed, 22-5493, R.1, PID at 54.
    Over the next four days, the Fire continued to grow despite the efforts of Park employees.
    On Sunday, November 27, Salansky requested additional “ground and aerial” firefighting
    resources from the NPS, the National Guard and the Bureau of Indian Affairs. Id. at 67.
    1
    A “fire line” is constructed by creating a gap in vegetation to slow the advance of a fire. Salansky opted
    to use an “indirect attack ‘box’ suppression strategy,” which makes use of “natural and pre-existing features such as
    trails, drainage bottoms, and natural features” to cut a wildfire off from fuel and slow its advance. Reed, 22-5493,
    R.1-5, PID 166.
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    By around 1:00 pm, a National Guard “Chinook Type 1 helicopter – the largest helicopter for use
    on wildfires” arrived to begin pulling water from the Pigeon River and dropping it onto the Fire.
    Id. at 68-69. By that evening, the Fire had spread to between 35 and 40 acres but was still within
    the boundaries of the Park. Salansky released all firefighting personnel for the evening so that
    they could return the following day at first light. He did not monitor the Fire overnight.
    The wind grew in strength, and at 4:05 a.m. Monday, November 28, the National
    Weather Service (“NWS”) issued a high-wind warning, predicting “‘sustained wind speeds of at
    least 40 mph’ by 1:00 p.m., with gusts of up to 60 mph.” Id. at 75 (emphasis omitted). By 7:30
    a.m., Salansky estimated that the Fire had grown from 40 acres to between 250 and 500 acres.
    When the firefighters returned that morning, they discovered that burning embers from the main
    fire had created “smaller fires as far as a mile away from the origin of the [F]ire.” Id. Around the
    same time, people in Gatlinburg observed heavy smoke and ash falling from the sky. According
    to Plaintiffs, even at this point, “neither [acting Park Superintendent Clayton] Jordan2 nor
    Salansky (nor any other Park official) took the slightest action to notify or warn Park neighbors,
    local officials, local residents or visitors of the imminent danger.” Id. at 77. By 9:00 a.m., the
    Gatlinburg Fire Department began receiving emergency calls from members of the public about
    the smoke and falling ash. The Gatlinburg Fire Chief attempted to reach Salansky, but his call
    went unreturned until 10:58 a.m. The 10:58 a.m. call was the first communication between any
    Park staff and any Gatlinburg or other local official about the Fire.
    Around noon, Gatlinburg Fire Department first-responders began delivering voluntary
    evacuation notices to residents in the Mynatt Park neighborhood of Gatlinburg. By 2:00 p.m.,
    the Fire was moving as fast as half a mile per hour. By 4:15 p.m., the Fire was within a mile of
    the Mynatt Park neighborhood. Id. at 90. After 5:00 p.m., the Fire covered about 4,000 acres
    and had doubled in size since 3:00 p.m. Park Headquarters was evacuated around 5:15 p.m.
    Around 5:45 p.m., the Gatlinburg Fire Department received reports of fires within the city.
    At 6:00 p.m., winds gusted to 87 miles per hour and the Fire grew to 5,000 acres. A mandatory
    2
    Because of the Thanksgiving holiday, Park Superintendent Cassius Cash and many other Park employees
    were on scheduled vacation from November 23 through November 27. During that timeframe, Deputy Park
    Superintendent Jordan was acting Park Superintendent.
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    evacuation of the Mynatt Park neighborhood was issued at 6:11 p.m.          Other fires ignited
    throughout the night.   Plaintiffs assert that as the Fire continued to spread, “[e]vacuation-
    protocols also broke down” because local officials “simply lacked reasonable or sufficient time
    to reach every house, every apartment, every trailer, every campground, every cabin, or every
    hotel room ahead of the [F]ire.” Reed, 22-5493, R.1, PID 97. A total evacuation of the
    Gatlinburg area was ordered shortly after 8:30 p.m. However, due to infrastructure failures
    created by the Fire—including the destruction of two Verizon cell towers—NWS did not send a
    message through the Emergency Alert System instructing residents to evacuate until 9:03 p.m.
    that night.
    Rain finally arrived at 2:00 a.m. on November 29 and began to slow the Fire’s spread.
    By that point, however, significant damage had been sustained by the Park and its neighbors. All
    told, 14 people died, 191 were injured, 2,500 structures were damaged or destroyed, and more
    than 17,000 acres burned. The Fire was not fully extinguished until December 13, 2016.
    B.
    In the aftermath of the Fire, both the NPS and ABSG Consulting conducted independent
    reviews of the conduct of Park staff in responding to the Fire.        The ABSG Report was
    commissioned by the City of Gatlinburg and Sevier County. Although the NPS Report identified
    “no evidence of wanton disregard or negligence by anyone at the park,” it determined that Park
    staff had failed to give proper warnings, and that the Fire “exposed several wildlife fire
    situational preparedness and planning weaknesses” at the Park. Reed, 22-5493, R.1-5, PID 223,
    227. The report’s scope, however, was limited to “NPS’s preparedness and response to the
    Chimney Tops 2 Fire as it originated and burned within the Park’s boundaries up to the time the
    [F]ire left the Park”—accordingly, it “did not detail anything that happened after” the Fire
    “spread outside the Park.” Reed, 22-5493, R.1, PID 110. The ABSG report was more critical,
    stressing that “[f]rom the initiation of the Chimney Tops 2 wildfires on November 23 until the
    morning of November 28, there was no communication to the [Gatlinburg Fire Department]
    regarding the existence or progression of the” fire. Reed, 22-5493, R.1-6, PID 309. Along with
    various other problems, the ABSG report highlighted that Park “personnel contacted [Gatlinburg
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    Fire Department] only after [the Gatlinburg Fire Department] had initiated inquiries regarding
    the” Fire. Id. at 330.
    Plaintiffs all suffered the loss of loved ones or property.3
    C.
    In the months following the Fire, hundreds of individuals and several small businesses
    submitted claims for damages with the Department of the Interior using the Standard Form 95
    (“SF95”), which is available on the Department of Justice website.                       Although the forms
    submitted by Plaintiffs differ as to their claimed injuries, the SF95 submissions are substantially
    similar in content. The SF95s state:
    The U.S. government, through its employees, failed to follow mandatory
    regulations to monitor and extinguish a fire in the Great Smoky Mountains
    National Park, thereby allowing it to spread beyond the park boundaries onto
    claimants’ private property, destroying their property.
    Abbott, 22-5492, R.1-2, PID 192.
    After the Department of the Interior failed to act on these claims within sixth months,
    Plaintiffs filed these actions. Plaintiffs’ complaints seek relief based on the Park’s failure to
    monitor and extinguish the Fire—as stated in the SF95 forms—and also based on the Park’s
    failure to warn Park neighbors of the Fire.
    Plaintiffs comprise six classes: the Abbott Plaintiffs, the Reed Plaintiffs, the Anculle
    Plaintiffs, the Barnes Plaintiffs, the Adkins Plaintiffs and the Vance Plaintiffs.                    The Reed
    Plaintiffs were the first to file their SF-95s with the Department of Interior, doing so in January
    and February of 2017. They filed suit over a year later in May 2018. The other plaintiffs’
    notices of claims and subsequent complaints were filed in similar fashion. Anculle, 22-5494,
    R.1-1 (SF-95 claims filed beginning in August 2017); Anculle, 22-5494, R.1 (complaint filed in
    3
    Named Plaintiff Michael Reed suffered the loss of his wife and two daughters and his home. Named
    Plaintiff James Vance lost his wife and his home in Gatlinburg. Named Plaintiff Brittany Anculle suffered the loss
    of property that was stored in Gatlinburg. Named Plaintiff Jackie Barnes lost her home in Sevierville. Named
    Plaintiff Brittany Adkins lost her home in Gatlinburg. And Named Plaintiffs Paul and Toni Abbott lost their home
    in Gatlinburg and a camper van.
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    July 2018); Barnes, 22-5495, R.1-1 (SF-95 claims filed beginning in May 2018); Barnes, 22-
    5495, R.1 (complaint filed in August 2019); Adkins, 22-5499, R.1-1, PID197 (SF-95 claims filed
    beginning in October 2017); Adkins, 22-5499, R.1 (complaint filed in July 2018); Vance, 22-
    5513, R.1-1 (SF-95 claims filed beginning in May 2018); Vance, 22-5513, R.1 (complaint filed
    in July 2019); Abbott, 22-5492, R.1-4, PID 193 (SF-95 filed beginning November 2018); Abbott,
    22-5492, R.1 (complaint filed in April 2020). The Reed Plaintiffs’ complaint alleged five causes
    of action: 1) negligence – failure to monitor; 2) negligence – failure to comply with command
    structure requirements; 3) negligence – failure to adhere to mandatory fire management policies
    and requirements; 4) negligence – failure to warn; and 5) wrongful death under Tenn. Code Ann
    § 20-5-106. Plaintiffs alleged that “[a] lack of early notice from the Park appeared to be the most
    critical failure of all, according to the ABS[G] Report” and that “[b]y the time local officials
    [were] informed about the true danger, [t]he Chimney Tops 2 Fire was unstoppable.” Reed, 22-
    5493, R.1, PID 112. The other Plaintiffs also filed complaints asserting similar causes of action.
    D.
    In October 2018, the government moved to dismiss the claims of the Reed, Anculle, and
    Adkins Plaintiffs for lack of subject-matter jurisdiction,4 arguing that Plaintiffs’ claims fall
    within the discretionary-function exception to the government’s waiver of sovereign immunity
    under the FTCA. See 
    28 U.S.C. § 2680
    (a). The district court issued a memorandum and order
    denying the government’s motion. In the same order, the district court also found that Plaintiffs
    had abandoned all claims except the failure-to-warn claims.
    The district court reasoned that application of the discretionary-function exception turns
    on a test set out in United States v. Gaubert, 
    499 U.S. 315
     (1991).                       Under that test, the
    government is immunized from liability under the discretionary-function exception if 1) the
    challenged action “involv[es] an element of judgment or choice” and 2) if the judgment involved
    “is of the kind that the discretionary function exception was designed to shield,” i.e.,
    “governmental actions and decisions based on considerations of public policy.” 
    Id.
     at 322-23
    4
    The Vance, Abbott, and Barnes Plaintiffs did not file their complaints until after the government’s first
    motion to dismiss.
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    (quoting Berkovitz v. United States, 
    486 U.S. 531
    , 536-37 (1988)). Then, the district court found
    that the discretionary-function exception did not apply because sections of the Fire Management
    Plan (FMP) contained mandatory directives. Specifically, the district court determined that the
    instruction at Section 3.3.2(C) of the FMP, which states that “Park neighbors, Park visitors and
    local residents will be notified of all planned and unplanned fire management activities that have
    the potential to impact them” requires the NPS to take specific action and therefore contains a
    mandatory directive. Reed, 22-5493, R.1-7, PID 471. Similarly, the court also held that Table
    13 of the FMP, which lays out “mitigations for public safety issues,” including the requirement
    to “post current fire information on websites as available,” “inform park neighbors of wildland
    fires,” and “use information officer and/or park public affairs to disseminate information” sets
    forth mandatory directives. Reed, 22-5493, R.1-7, PID 498. Because the district court found
    that the first prong of the Gaubert test was not satisfied, it did not discuss the second prong of the
    test.
    The government moved again to dismiss Plaintiffs’ claims on February 7, 2020.5 In this
    motion, the government sought dismissal on a factual challenge under the discretionary-function
    exemption, essentially arguing that even accepting that the requirements of the FMP were
    mandatory directives, the Park complied with those requirements. Although the government
    presented evidence that the Park had presented current fire information on its website and had
    issued press releases about the Fire—as required by Table 13 of the FMP—the district court
    rejected the argument that NPS had notified Park neighbors, Park visitors and local residents “of
    all planned and unplanned fire management activities that have the potential to impact them.”
    And the district court found that the NPS had not presented sufficient evidence that it had
    “[i]nform[ed] Park neighbors of wildland fires” as required by Table 13. The district court
    denied the motion.
    On June 1, 2021, the government filed its third and fourth motions to dismiss for lack of
    subject-matter jurisdiction. The third motion argued that Plaintiffs’ claims were barred by the
    5
    By this point, all five classes of plaintiffs had filed suit, and the government moved to dismiss all five suits
    in its renewed motion to dismiss.
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    FTCA’s misrepresentation exception. See 
    28 U.S.C. § 2680
    (h).6 The district court denied this
    motion, finding that Plaintiffs’ claims arise out of negligence, not misrepresentation, and that the
    misrepresentation exception primarily applies to claims of commercial or pecuniary injuries.
    The fourth motion argued that Plaintiffs had failed to properly present their failure-to-
    warn claims to the Department of the Interior in their SF95s. Plaintiffs argued that the SF95s
    had sufficiently presented failure-to-warn claims, that the FTCA’s presentment requirement is
    not jurisdictional, and that the district court could find the government had waived the argument
    or was estopped from raising it. Although the district court explained that there is a “strong
    argument that this requirement should no longer be applied as jurisdictional” based on the
    Supreme Court’s decision in Arbaugh v. Y&H Corp., 
    546 U.S. 500
     (2006), and our recent
    decision in Copen v. United States, 
    3 F.4th 875
     (6th Cir. 2021), it found itself bound by Garrett
    v. United States, 
    640 F.2d 24
     (6th Cir. 1981). Reed, 22-5493, R.160, PID 5878. In Garrett—
    which predates the Supreme Court’s re-examination of jurisdictional requirements in Arbaugh—
    the Sixth Circuit squarely held that the presentment requirement of the FTCA is a “jurisdictional
    requirement[], not capable of waiver or subject to estoppel.” Garrett, 
    640 F.2d at 26
    .7 The
    district court granted the motion and dismissed Plaintiffs’ cases without prejudice, finding that
    “[t]he Individual Plaintiffs’ SF-95s contain no information about a failure to warn or facts related
    to a failure-to-warn claim,” and thus the SF95s set out a “claim based on NPS’s failure to
    extinguish the [F]ire rather than a failure-to-warn claim.” Reed, 22-5493, R.160, PID 5874.
    Plaintiffs filed a motion to alter or amend the judgment under Rule 59(e). Plaintiffs
    argued that “not only did the Government have actual notice of Plaintiffs’ failure to warn claims”
    but it also “advised Plaintiffs’ counsel during a meet and confer and in writing that their initial
    SF-95 forms were sufficient and that it was not aware of any defects to the notice provided.”
    Reed, 22-5493, R.163, PID 5968. And “[h]aving received reassurance from the United States,
    6
    The government brought the third motion to dismiss against all five plaintiff classes, as well as six classes
    of insurance plaintiffs.
    7
    Garrett’s holding—that 
    28 U.S.C. § 2675
    (a) is jurisdictional—may not have survived Arbaugh v. Y&H
    Corporation, 
    546 U.S. 500
     (2006). See Copen v. United States, 
    3 F.4th 875
    , 880–82 (6th Cir. 2021) (concluding
    that Section 2675(a)’s sister provision, Section 2675(b), is not jurisdictional). However, since we hold that
    petitioners satisfied Section 2675(a), we do not need to decide this issue.
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    Plaintiffs relied on the Government’s representations to their detriment by using substantially
    similar SF-95 forms to provide notice for additional individual Plaintiffs and by refraining from
    amending any of the SF-95 forms.” 
    Id.
     Thus, Plaintiffs argued, the district court had erred in
    dismissing the claims for failure to file adequate SF95 forms.          The district court denied
    Plaintiff’s Rule 59 motion, explaining that the “requirements for subject matter jurisdiction are
    ‘not capable of waiver or subject to estoppel.’” Reed, 22-5493, R.168, PID 6153 (quoting
    Garrett, 
    640 F.2d at 26
    ).
    Plaintiffs timely appealed.    We VACATE the dismissal and REMAND for further
    proceedings.
    II.
    A district court’s dismissal for lack of subject matter jurisdiction is reviewed de novo,
    accepting as true any factual findings of the district court unless they are clearly erroneous.
    Hohman v. Eadie, 
    894 F.3d 776
    , 781 (6th Cir. 2018).
    III.
    Plaintiffs make two arguments on appeal: first, that the district court erred by finding that
    Plaintiffs’ SF95 forms did not satisfy the FTCA’s presentment requirement; and second, that
    even if the SF95 forms were insufficient, the requirement is not jurisdictional and is subject to
    waiver or estoppel. Because we find that the SF95s adequately presented Plaintiffs’ failure-to-
    warn claims under the circumstances of this case, we do not reach the jurisdictional issue.
    Before filing suit under the FTCA, a claimant must first “present” that claim to the
    relevant agency. Specifically, under Section 2675(a) of the FTCA:
    An action shall not be instituted upon a claim against the United States 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 employee of the Government while
    acting within the scope of his office or employment, unless the claimant shall
    have first presented the claim to the appropriate Federal agency and his claim
    shall have been finally denied by the agency in writing and sent by certified or
    registered mail. The failure of an agency to make final disposition of a claim
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    within six months after it is filed shall . . . be deemed a final denial of the claim
    for purposes of this section.
    
    28 U.S.C. § 2675
    (a). The presentment requirement is not a particularly high bar; “Section
    2675(a) requires only ‘minimal notice.’” Knapp v. United States, 
    844 F.2d 376
    , 379 (6th Cir.
    1988) (quoting Warren v. United States Dep’t of the Interior, 
    724 F.2d 776
    , 779 (9th Cir. 1984)).
    All the section requires is that the claimant “1) give written notice of a claim sufficient to enable
    the agency to investigate the claim and 2) place a value (or ‘sum certain’) on the claim.” Glarner
    v. United States, 
    30 F.3d 697
    , 700 (6th Cir. 1994).            “A claim submitted to the proper
    administrative agency is considered sufficient to satisfy the exhaustion requirement if it is a
    ‘written notification of an incident, accompanied by a claim for money damages in a sum certain
    for injury to or loss of property, personal injury, or death.’” Blakely v. United States, 
    276 F.3d 853
    , 864 (6th Cir. 2002) (quoting Lundstrum v. Lyng, 
    954 F.2d 1142
    , 1145 (6th Cir. 1991) (per
    curiam)).
    Our sister circuits’ decisions are consistent with this Court’s precedent that an
    administrative claim need not articulate a precise cause of action in order to satisfy the
    presentment requirement. See Khan v. United States, 
    808 F.3d 1169
    , 1172 (7th Cir. 2015) (“All
    that must be specified, therefore, is ‘facts plus a demand for money;’ if those two things are
    specified, ‘the claim encompasses any cause of action fairly implicit in the facts.” (quoting
    Murrey v. United States, 
    73 F.3d 1448
    , 1452 (7th Cir. 1996))); Goodman v. United States,
    
    298 F.3d 1048
    , 1056 (9th Cir. 2002) (noting that the plaintiff “was not required to provide [the
    agency] with a preview of the details of his federal complaint, nor required to describe in more
    than minimal detail the factual predicate for his claim.”); Broudy v. United States, 
    722 F.2d 566
    ,
    568-69 (9th Cir. 1983) (“We see nothing in section 2675(a) or the regulations which require the
    claimant to state with great specificity the legal theories to be asserted in the eventual FTCA
    action.”).
    The text of the statute confirms this interpretation. Section 2675(a) does not require that
    a particular theory of liability be presented to the agency; instead, it requires only that the “the
    claim” be submitted “to the appropriate Federal agency.” See Nagrampa v. MailCorps, Inc., 
    469 F.3d 1257
    , 1264, n.2 (9th Cir. 2006) (en banc) (“Under the federal system, ‘[t]he word ‘claim’
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    5494/5495/5499/5513
    denotes the allegations that give rise to an enforceable right to relief.’” (quoting Moore’s Federal
    Practice § 10.03[2][a] at 10-23 (3d ed. 2006)). Further, the federal regulations interpreting
    Section 2675(a), require only “written notice of an incident, accompanied by a claim for money
    damages.” 
    28 C.F.R. § 14.2
    (a) (emphasis added).
    In light of this “minimal notice” requirement and the facts presented, the district court
    erred in finding that Plaintiffs failed to satisfy the presentment requirement. The district court
    supported its conclusion by explaining that the failure-to-warn claim involved a “different set of
    operative facts, is based on the acts of a different group of employees, and []relies on different
    policies and regulations applicable to NPS-firefighting tasks,” and thus, notice of failure-to-
    monitor and failure-to-extinguish claims could not have been sufficient to place the agency on
    notice of Plaintiffs’ failure-to-warn claims. Reed, 22-5493, R.160, PID 5877-78. We disagree.
    Plaintiffs’ complaint and the post-fire investigation report prepared by the NPS detail a
    course of events in which the Park’s purported failures to monitor and extinguish the Fire were
    interwoven with the Park’s communication failures. Many of Plaintiffs’ allegations regarding
    the Park’s negligence—whether related to the failure to monitor, extinguish or warn—center on
    the actions of Fire Management Officer Salansky.           Plaintiffs alleged that Salansky took
    “complete and unfettered command-control of” the Fire. Reed, 22-5493, R.1, PID 8. The NPS
    report explained that Salansky, in violation of official policy, acted as the Fire Management
    Officer (the person responsible for leading the wildland fire program), the Incident Commander
    (the person responsible for managing the Fire), and the Duty Officer (the person responsible for
    ensuring compliance with safety policies and keeping information officers informed of the
    current and expected situation). And the complaint and the NPS report both explain that the Park
    was operating with a skeleton staff from November 23 to November 27 (as the Fire was growing
    in strength and intensity) because Park Superintendent Cash, as well as other Park staff were
    scheduled to be off work for the Thanksgiving holiday. Although monitoring, firefighting, and
    warning functions might ordinarily be split among different personnel, here Salansky is alleged
    to have touched all aspects of NPS’s response. Therefore, the failure-to-warn claim did not rest
    on a “different set of operative facts,” nor was it “based on the acts of a different group of
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    employees,” and the district court’s contrary conclusion is unsupported by the factual record.
    Reed, 22-5493, R.160, PID 5877.
    The district court relied heavily on Roma v. United States, 
    344 F.3d 352
     (3d Cir. 2003),
    which it found “indistinguishable from the situation here.” Reed, 22-5493, R.160, PID 5877.
    But beyond not being binding authority, Roma is also distinguishable, and the reason why is
    instructive.
    In Roma, the Third Circuit ultimately found that Roma had failed to present his claim that
    the United States had wrongfully caused his injuries by negligently failing to prevent a fire. 
    Id. at 363
    . Roma, a firefighter, suffered smoke-inhalation injuries while fighting a hangar fire at the
    Naval Air Engineering Station in Lakehurst, New Jersey (“NAES Lakehurst”), 
    id. at 354
    , after a
    NAES Lakehurst firefighter instructed him to remove his self-contained breathing apparatus
    (“SCBA”) while fighting the fire. 
    Id. at 355
    . Roma filed a SF95 with the Navy, seeking
    damages for injuries he suffered. Roma described his claim as: “During fire emergency claimant
    was ordered to remove breathing respirator. As a result of same, claimant sustained significant
    damage to his respi[ra]tory system.” 
    Id. at 358
    . When Roma filed his FTCA complaint in
    federal court, however, he alleged two torts based on 1) the NAES Lakehurst firefighter’s
    negligent instruction to remove the SCBA, and 2) the negligence of other federal employees in
    failing to prevent the fire. Roma argued that “his allegation in the initial administrative claim
    that his injuries were caused by the Hangar No. 1 fire gave the Navy sufficient notice that it also
    had to investigate potential negligence on the part of federal employees in failing to prevent the
    fire.” 
    Id. at 363
    . The Third Circuit disagreed, finding that “[t]he facts concerning how the fire
    started and any negligence by federal employees in failing to prevent it are entirely distinct from
    the conduct involved in supervising the firefighting operations, including the NAES Lakehurst
    firefighter’s instruction to Roma to remove his SCBA.” 
    Id.
     Accordingly, Roma’s SF95 “did not
    provide any notice to the United States that it not only had to investigate the way the firefighting
    was handled by federal employees, but that it also had to engage in a much broader investigation
    concerning whether the negligence of other, non-firefighter, federal employees may have
    contributed to the start of the fire itself.” 
    Id.
    Nos. 22-5492/5493/                Abbott, et al. v. United States                          Page 13
    5494/5495/5499/5513
    Roma illustrates the difference between a claim for which there is inadequate notice
    because it is truly based on a “different set of operative facts, is based on the acts of a different
    group of employees, and [] relies on different policies and regulations,” Reed, 22-5493, R.160,
    PID 5877-78, and, as is the case here, a claim that has a close nexus to those raised in the SF95s.
    Roma’s SF95 detailed a specific instance of negligence—a particular NAES firefighter ordered
    him to remove his SCBA and he was injured as a result. 
    Id. at 358
    . He then attempted to use
    presentment of that specific instance of negligence as the basis for a wide-ranging complaint
    alleging negligence by the Navy in failing to prevent the fire in the first place. 
    Id. at 363
    . The
    Third Circuit reasonably concluded that such a narrow presentment of negligence could not have
    given the Navy sufficient notice to investigate claims of negligence by an entirely different set of
    actors based on actions that preceded the fire. In contrast, Plaintiffs’ administrative challenge to
    the government’s “fail[ure] to follow mandatory regulations to monitor and extinguish a fire,”
    Reed, 22-5493, R.1-3, PID 153, involves a dispute regarding the government’s overall fire
    management over the duration of the Fire. And here, Plaintiffs allege that every aspect of the
    government’s fire response was interrelated and managed by the same individuals. Thus, unlike
    in Roma, here the employees are the same and the operative facts are, at the very least,
    overlapping.
    The government’s own regulations concerning notice also bolster the conclusion that
    Plaintiffs have satisfied the presentation requirement. This regulation requires only that SF95s
    contain “written notice of an incident, accompanied by a claim for money damages.” 
    28 C.F.R. § 14.2
    (a). And here, the SF95s clearly contain “written notice of the incident” that Plaintiffs
    allege gave rise to their harms—the NPS’s alleged failure to deal effectively with the Fire, from
    the moment it was first spotted until the time it exploded beyond the park five days later. This
    too supports the Plaintiff’s contention that they’ve met their notice obligations.
    In sum, section 2675(a) of the FTCA requires only that a claimant provide written notice
    “sufficient to enable the agency to investigate the claim and 2) place a value (or ‘sum certain’)
    on the claim.” Glarner, 
    30 F.3d at 700
     (6th Cir. 1994). And this standard requires only
    “‘minimal notice.’” Knapp, 
    844 F.2d at 379
     (quoting Warren, 724 F.2d at 779). Because a
    claimant need not articulate the precise cause of action to satisfy the presentment requirement
    Nos. 22-5492/5493/                Abbott, et al. v. United States                          Page 14
    5494/5495/5499/5513
    and the government’s monitoring, firefighting, and warning all constituted a single course of
    action, we conclude that Plaintiffs’ SF95 forms sufficiently enabled the Department of the
    Interior to investigate Plaintiffs’ claims of injuries suffered as a result of the failure to warn of
    the Chimney Tops 2 Fire. Accordingly, we vacate the order of dismissal and find it unnecessary
    to address whether the presentment requirement is jurisdictional, and if not, whether it was
    waived.
    IV.
    The government urges us to affirm the district court’s dismissal on the independent
    alternative basis that Plaintiffs’ claims are barred by the FTCA’s discretionary-function
    exception.   The discretionary-function exception is an exception to the FTCA’s waiver of
    sovereign immunity; it “marks the boundary between Congress’ willingness to impose tort
    liability upon the United States and its desire to protect certain governmental activities from
    exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio
    Grandense (Varig Airlines), 
    467 U.S. 797
    , 808 (1984).           The exception excludes from the
    FTCA’s coverage:
    Any claim based upon an act or omission of an employee of the Government,
    exercising due care, in the execution of a statute or regulation, whether or not
    such statute or regulation be valid, or 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, whether or not the discretion
    involved be abused.
    
    28 U.S.C. § 2680
    (a). The “exception focuses on ‘the nature of the conduct, rather than the status
    of the actor.’” Mynatt v. United States, 
    45 F.4th 889
    , 895 (6th Cir. 2022) (quoting S.A. Empresa,
    
    467 U.S. at 813
    ).
    Application of the exception turns on a two-part test. First, we ask “whether the action is
    a matter of choice for the acting employee.” Berkovitz by Berkovitz v. United States, 
    486 U.S. 531
    , 536 (1988). Second, even if the action is a matter of choice, we also ask whether the
    relevant choice or exercise of discretion “is of the kind that the discretionary function exception
    was designed to shield.”     Gaubert, 
    499 U.S. at 322-23
    (citation omitted).         As we recently
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    explained, this test is conjunctive; “the government is entitled to sovereign immunity [under the
    discretionary-function exception] only if the complained-of actions are both discretionary and of
    the type the exception was designed to protect. If the actions are either non-discretionary or
    discretionary but unprotected, the government is not entitled to sovereign immunity.” Mynatt,
    45 F.4th at 896.
    In its order denying the government’s motion to dismiss based on the discretionary-
    function exception, the district court evaluated only the first prong of this test—whether the
    complained-of action was “a matter of choice for the acting employee.” The district court first
    explained that “the crucial first step is to determine precisely the conduct at issue,” which it
    identified as “NPS ‘neglecting to provide timely and accurate notice and warning to Park
    neighbors, local government officials, local fire departments, local residents, and visitors about
    the status of and imminent danger presented by the Chimney Tops 2 Fire.’” Reed, 22-5493, R.4,
    PID 3102 (quoting Reed, 22-5493, R.1, PID 139). The district court then determined that
    Section 3.3.2 of the FMP, which instructs that “Park neighbors, Park visitors and local residents
    will be notified of all planned and unplanned fire management activities that have the potential to
    impact them,” is a mandatory directive. The district court also determined that Table 13 of the
    FMP, which includes a list of “Mitigations for Public Safety Issues” such as “Inform[ing] park
    neighbors of wildland fires,” also constitutes a mandatory directive.
    The district court distinguished the language in the FMP from the discretionary language
    involved in Myers v. United States, 
    17 F.3d 890
     (6th Cir. 1994). In Myers, we determined that a
    mining regulation, which required that “if, during mandatory quarterly inspections, a safety
    violation is discovered, then inspectors must issue a citation and, if the violation poses an
    ‘imminent danger,’ a withdrawal order,” did not set forth mandatory directives. 
    Id. at 895
    (emphasis omitted). We explained that these instructions could not be mandatory directives
    because “each of the ‘duties’ . . . involve[s] an ‘if/then’ logical structure” which requires
    [the] inspectors [to] first determine that some predicate condition exists. Until
    that assessment is made, the inspector is not bound by statute or regulation to do
    anything other than inspect. This requirement of an antecedent assessment or
    determination presents [the inspector] with a choice; does the condition exist or
    doesn’t it?
    Nos. 22-5492/5493/               Abbott, et al. v. United States                         Page 16
    5494/5495/5499/5513
    
    Id. at 895-96
    . The district court found that “unlike the language in Myers, neither the language
    in Section 3.3.2 nor Table 13 contains the ‘if/then’ language.” Reed, 22-5493, R.41, PID 3111.
    But “if” and “then” are not magic words. Although the district court is correct that
    neither Section 3.3.2 nor Table 13 contain the words “if” or “then,” Section 3.3.2 requires Park
    staff to make an “antecedent assessment” before carrying out the required task. Section 3.3.2
    states that “Park neighbors, Park visitors and local residents will be notified of all planned and
    unplanned fire management activities that have the potential to impact them.” Reed, 22-5493,
    R.1-7, PID 471 (emphasis added). Before Park staff are required to inform Park neighbors, Park
    visitors, and local residents of planned or unplanned fire management activities, the staff must
    first determine if those activities “have the potential to impact them.” Although the regulation
    does not use the words “if” and “then,” the same logical structure is present—if planned or
    unplanned fire management activities have the potential to impact Park neighbors, Park visitors
    and local residents, then they must be informed. Like the inspectors in Myers, Park staff are
    faced with a “choice; does the condition exist or doesn’t it?” Myers, 
    17 F.3d at 896
    ; see also
    Rosebush v. United States, 
    119 F.3d 438
    , 442 (6th Cir. 1997) (finding that an instruction for the
    Forest Service “to eliminate safety hazards from recreation sites ‘to the extent practicable’”
    required “the exercise of discretion which is protected by the FTCA § 2680(a).” (emphasis
    omitted)).
    The district court erred, therefore, in determining that Section 3.3.2 was not discretionary
    solely because it does not include the exact “if/then” language that the Court highlighted in
    Myers. See Reed, 22-5493, R.41, PID 3111. But the inquiry does not end there. First, the
    district court must determine whether Park officials ever made the required “antecedent
    assessment.”   Section 3.3.2 requires Park officials to determine whether the “planned and
    unplanned fire management activities [] have the potential to impact” “Park neighbors, Park
    visitors and local residents . . . .” Reed, 22-5493, R.1-7, PID 471. If Park officials failed to
    conduct that assessment, they are not shielded by the discretionary-function exception. See
    Myers, 
    17 F.3d at 895
    . Second, if Park officials conducted the “antecedent assessment” and
    determined that some fire management activities did indeed have the potential to impact Park
    neighbors, Park visitors, and local residents, then Section 3.3.2 became mandatory. See 
    id.
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    5494/5495/5499/5513
    (holding that once officials determine that the relevant “predicate condition exists,” the official
    becomes “bound by statute or regulation . . . .”).       Park officials are only shielded by the
    discretionary-function exception as it relates to Section 3.3.2 if they conducted the required
    antecedent assessment and determined that the fire management activities did not have the
    potential to impact Park visitors, Park neighbors, or local residents. See, 
    id.
    The requirements of Table 13 pose different questions. Table 13 is located in section 4 of
    the Fire Management Plan, which is titled “Wildland Fire Operational Guidance.” Reed, 22-
    5493, R.1-7, PID 472. The Table is found at Section 4.4.2(F), titled “Mitigation,” and explains
    that “[t]his section outline[s] mitigation actions required to protect values at risk and to ensure
    the safety of park staff and visitors as well as the neighboring public.” Id. at 498 (emphasis
    added). The relevant portion of the table reads as follows:
    Public Safety Issues                                      Mitigation
    Park Neighbors                                   •   Use Smoke Screening Tools
    •   Post current fire information on websites
    as available
    •   Inform park neighbors of wildland fires
    •   Use information officer and/or park public
    affairs to disseminate information
    •   Suppress those fires or parts there of that
    threaten to burn off of park property or
    that adversely impact public health and
    safety
    The district court found, and Plaintiffs argue on appeal, that the requirement to “[i]nform park
    neighbors of wildland fires” constitutes a mandatory directive. The district court explained that
    “the actions listed in Table 13 are specific as to when and how warnings should occur, namely,
    Park neighbors should be informed in the event of a wildland fire, using various means,
    including the internet and information officers.” Reed, 22-5493, R.41, PID 3112. Plaintiffs
    Nos. 22-5492/5493/                Abbott, et al. v. United States                          Page 18
    5494/5495/5499/5513
    argue that “[u]nder this directive, all Park neighbors are to be notified of all wildland fires. This
    specific directive leaves no room for the exercise of agency discretion.” Appellants Reply, 30.
    The government argues that a requirement that Park officials “inform” “Park neighbors”
    about wildlands fires does not provide guidance on how to accomplish that objective and
    therefore leaves Park officials with discretion in its implementation. See Montez v. United
    States, 
    359 F.3d 392
    , 396 (6th Cir. 2004) (explaining that a statute that imposed a “mandatory
    duty” of a “general nature” gave “no guidance” on how to carry out its duties, and therefore,
    provided officials with discretion). But here the complaint does not concern how the Park
    provided notice of the Fire, but rather that it failed to provide any notice.
    In its order addressing the government’s second motion to dismiss, which raised a factual
    challenge to subject matter jurisdiction arguing that the Park had satisfied any mandatory
    directives that may have existed in the FMP, the district court found that the Park had properly
    used an information officer to disseminate information and that the Park had properly posted
    current fire information on available websites, as required by Table 13. Reed, 22-5493, R.87,
    PID 3518-19.      But the district court found that the government did not present sufficient
    evidence to establish that the Park satisfied the requirement to “inform” “park neighbors” of the
    Fire. 
    Id.
     On appeal, the government represents that “[i]n the event this litigation proceeds, the
    government stands ready to present the additional evidence that the district court believed
    necessary for justifying a dismissal on discretionary-function grounds.” Appellee Br. at 54, n.
    16. But this evidence is not before us and we leave any consideration of this evidence to the
    district court.
    At oral argument, counsel for Plaintiffs suggested that we permit discovery to move
    forward and allow the government to present this new evidence on summary judgment. And in
    their briefing, Plaintiffs argue that the government should not be permitted to present this
    evidence at the motion to dismiss stage because doing so would allow the government “a fifth
    attempt to dismiss Plaintiffs’ claims.” Reply Br. at 33 n.7. But because of the FTCA’s unique
    waiver of sovereign immunity, the applicability of the discretionary-function exception is a
    jurisdictional issue, and if Plaintiffs “cannot identify a waiver [of immunity], [their] claim[s]
    Nos. 22-5492/5493/                  Abbott, et al. v. United States                          Page 19
    5494/5495/5499/5513
    must be dismissed on jurisdictional grounds.” Reetz v. United States, 
    224 F.3d 794
    , 795 (6th Cir.
    2000). Accordingly, this jurisdictional issue must be resolved as a threshold question before the
    case proceeds broadly on the merits. This is not to say, however, that the jurisdictional issue
    requires no factual development, or that discovery is unwarranted on this threshold issue. See
    Ohio Nat. Life Ins. Co. v. United States, 
    922 F.2d 320
    , 325 (6th Cir. 1990) (“In reviewing [a
    factual attack on subject matter jurisdiction], a trial court has wide discretion to allow affidavits,
    documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.”).
    Further, even assuming that neither Section 3.3.2 nor Table 13 sets forth mandatory
    directives, the government is not shielded from liability unless both prongs of the discretionary-
    function test are satisfied. The second prong requires “a court to evaluate ‘whether the conduct
    is of the kind that the discretionary function exception was designed to shield’ from liability.”
    Kohl v. United States, 
    699 F.3d 935
    , 940 (6th Cir. 2012) (quoting Gaubert, 
    499 U.S. at 322-23
    ).
    Specifically, “[t]he discretionary-function exception is meant to ‘prevent judicial second-
    guessing of . . . administrative decisions grounded in social, economic, and political policy
    through the medium of an action in tort.’” Id. at 940 (quoting S.A. Empresa, 
    467 U.S. at 814
    ).
    Because the district court found that Section 3.3.2 and the requirements of Table 13 created
    mandatory directives, it did not reach the second prong of the discretionary-function test.
    Accordingly, on remand the district court should permit further factual development as it
    deems appropriate and 1) determine, consistent with this opinion, whether Section 3.3.2 and
    Table 13 set forth mandatory directives; 2) if necessary, apply Gaubert’s second prong; and
    3) readdress the government’s factual challenge in light of any additional facts provided by the
    parties.
    V.
    The government also urges us to affirm the district court’s dismissal on the independent
    alternative basis that Plaintiffs’ claims are barred by the FTCA’s misrepresentation exception.
    See 
    28 U.S.C. § 2680
    (h). Because we agree with the district court that Plaintiffs’ failure-to-warn
    claim sounds in negligence, and not in misrepresentation, we decline to affirm the district court
    on this alternative basis. Cf. United States v. Neustadt, 
    366 U.S. 696
    , 711, n.26 (1961).
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    5494/5495/5499/5513
    In support of their misrepresentation-exception argument, the government argues for the
    first time that “[p]laintiffs have failed to allege any breach of state-law duty [by the NPS] distinct
    from” the NPS’s obligations under federal law. Appellee Br. at 60. Because this argument was
    raised for the first time on appeal and was never presented to the district court it is not properly
    before us.
    CONCLUSION
    For the foregoing reasons we VACATE the order of dismissal and REMAND for further
    proceedings consistent with this opinion.
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    5494/5495/5499/5513
    ___________________
    CONCURRENCE
    ___________________
    CLAY, Circuit Judge, concurring.         Plaintiffs sued the United States for negligence
    pursuant to the Federal Tort Claims Act (“FTCA”), 
    28 U.S.C. §§ 1346
    (b), 2671–80. The district
    court dismissed their claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for failure to
    satisfy the FTCA’s presentment requirement, 
    28 U.S.C. § 2675
    (a). For the reasons set forth
    below, the Court should reverse.
    I. BACKGROUND
    This consolidated appeal arises from six lawsuits filed under the FTCA. Each case
    concerns damages caused in 2016 by the Chimney Tops 2 Fire (“Fire”). The Fire began in the
    Great Smoky Mountains National Park (“Park”) and then spread into surrounding communities,
    causing 14 deaths and over $1 billion in damages. Plaintiffs lost property and loved ones
    because of the Fire. After the Fire, Plaintiffs filed administrative claims with the Interior
    Department. The Interior Department did not act upon those claims, so Plaintiffs initiated their
    lawsuits against the United States. The sole claims at issue in this appeal are Plaintiffs’ failure-
    to-warn claims.
    Park officials first spotted the Fire in the Park on November 23, 2016. Five days later,
    the Fire escaped the Park’s boundaries and made its way into Sevier County and the City of
    Gatlinburg. Plaintiffs’ failure-to-warn claims rest upon allegations that Park officials failed to
    follow the Park’s Fire Management Plan (“FMP”), thereby failing to warn the public of the
    pending danger.
    Under the FMP, “Park neighbors, Park visitors and local residents will be notified of all
    planned and unplanned fire management activities that have the potential to impact them.” FMP,
    Reed, et al. v. United States, et al., 
    426 F. Supp. 3d 498
     (E.D. Tenn. 2019) (“Reed”), R. 1-7, Page
    ID #471. The FMP “outline[s] mitigation actions required to protect values at risk and to ensure
    the safety of park staff and visitors as well as the neighboring public.” 
    Id.
     at Page ID #498.
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    5494/5495/5499/5513
    Those mitigation actions include: (1) posting “current fire information on websites as available;”
    (2) informing “park neighbors of wildland fires;” and (3) using “information officer and/or park
    public affairs to disseminate information.” 
    Id.
     at Page ID #498–99. Plaintiffs allege that Park
    officials failed to take those required mitigation actions.
    After the Fire, Plaintiffs timely presented their damages claims to the Interior Department
    using standard SF-95 forms provided on the Department of Justice’s website.              Although
    Plaintiffs’ description of damages on their SF-95 forms varied, the bases of the claims were
    substantially similar.
    The Interior Department did not act on the claims, so Plaintiffs commenced their
    respective lawsuits. Before the district court, the government filed four successive motions to
    dismiss, the first three of which failed. In the first, the government moved to dismiss for lack of
    subject matter jurisdiction, arguing that Plaintiffs’ claims were facially barred by the FTCA’s
    discretionary function exception, 
    28 U.S.C. § 2680
    (a). In the second motion, the government
    argued that Plaintiffs’ claims were factually barred by the discretionary function exception. In
    the third motion, the government argued that Plaintiffs’ claims were barred by the FTCA’s
    misrepresentation exception, 
    28 U.S.C. § 2680
    (h).
    The government prevailed on its fourth and final motion. Through that motion, the
    government argued that Plaintiffs had not properly “presented” their claims to the Interior
    Department. See 
    28 U.S.C. § 2675
    (a). The district court agreed and dismissed the complaints
    without prejudice for lack of subject matter jurisdiction. The next month, Plaintiffs moved to
    alter or amend the judgments. The district court denied those motions and Plaintiffs’ timely
    appeals followed.
    II. DISCUSSION
    A. Standard of Review
    The Court reviews de novo an order dismissing a case under Federal Rule of Civil
    Procedure 12(b)(1). Rote v. Zel Custom Mfg. LLC, 
    816 F.3d 383
    , 387 (6th Cir. 2016).
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    5494/5495/5499/5513
    B. Analysis
    On appeal, Plaintiffs contend that the district court erred when it determined: (1) that
    Plaintiffs failed to present their claims to the Interior Department; and (2) that the FTCA’s
    presentment requirement is jurisdictional. The government disagrees. The government also
    seeks affirmance on other grounds, contending that Plaintiffs’ failure-to-warn claims are
    independently barred by the FTCA’s discretionary function and misrepresentation exceptions.
    1. Presentment
    Section § 2675(a) of “[t]he FTCA provides that a claimant must first present a claim to
    the appropriate federal agency and that the agency must finally deny the claim before an action
    may be brought against the United States.” Knapp v. United States, 
    844 F.2d 376
    , 377 (6th Cir.
    1988) (citing 
    28 U.S.C. § 2675
    (a)). Congress instituted the presentment requirement “not to
    make recovery from the Government technically more difficult. Rather, the purpose was to ease
    court congestion and avoid unnecessary litigation, while making it possible for the Government
    to expedite the fair settlement of tort claims asserted against the United States.” Exec. Jet
    Aviation, Inc. v. United States, 
    507 F.2d 508
    , 515 (6th Cir. 1974). With that principle in mind,
    this Court has observed that § 2675(a) “requires only minimal notice.” Knapp, 
    844 F.2d at 379
    (quoting Warren v. U.S. Dep’t of Interior Bureau of Land Mgmt., 
    724 F.2d 776
    , 779 (9th Cir.
    1984)).
    According to the Justice Department’s regulation interpreting the FTCA’s presentment
    requirement, a plaintiff need only provide “written notice of an incident, accompanied by a claim
    for money damages.” 
    28 C.F.R. § 14.2
    (a). This Court has similarly held that a plaintiff satisfies
    the FTCA’s presentment requirement “if the claimant (1) gives the agency written notice of his
    or her claim sufficient to enable the agency to investigate and (2) places a value on his or her
    claim.” Douglas v. United States, 
    658 F.2d 445
    , 447 (6th Cir. 1981) (emphasis added) (quoting
    Adams v. United States, 
    615 F.2d 284
    , 289 (5th Cir. 1980)). A claimant satisfies the first prong
    by providing enough information so that “officials could easily have investigated what they
    needed to know.” Glarner v. U.S., Dep’t of Veterans Admin., 
    30 F.3d 697
    , 700 (6th Cir. 1994)
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    5494/5495/5499/5513
    (holding that a plaintiff satisfied the first prong by submitting a form stating, “I feel that I am
    entitled to compensation as a result of [the VA hospital’s] negligence.”).
    In this case, it is undisputed that Plaintiffs timely presented damages claims to the
    relevant government agency through their SF-95 forms. The issue is whether the SF-95 forms
    provided enough information so that the agency “could easily have investigated what [it] needed
    to know.” 
    Id.
     A representative SF-95 form stated:
    The U.S. government, through its employees, failed to follow mandatory
    regulations to monitor and extinguish a fire in the Great Smoky Mountains
    National Park, thereby allowing it to spread beyond the park boundaries onto
    claimants’ private property, destroying their property.
    SF-95, Reed, R. 111-1, Page ID #3901. That SF-95 form unquestionably provides written notice
    of the incident: the Fire; the government’s failure to follow mandatory regulations; and the
    injuries that followed. See 
    28 C.F.R. § 14.2
    (a). Similarly, because the SF-95 form connects the
    incident to damages, it gave “the agency written notice of [the] claim sufficient to enable the
    agency to investigate.” Douglas, 
    658 F.2d at 447
    .
    All of the above is sufficient to hold that Plaintiffs satisfied the FTCA’s presentment
    requirement. The lead opinion seems to recognize as much. Inexplicably, however, the lead
    opinion focuses extensively on allegations that a single park official “touched all aspects of
    NPS’s response” to the Fire. That analysis is misguided. Congress instituted the FTCA’s
    presentment requirement “to ease court congestion and avoid unnecessary litigation, while
    making it possible for the Government to expedite the fair settlement of tort claims asserted
    against the United States.” Executive Jet, 
    507 F.2d at 515
     (citations omitted). The lead opinion
    cites no authority to support the proposition that an agency’s internal attribution of responsibility
    affects whether a plaintiff has met the FTCA’s presentment requirement, and it is doubtful that
    any such authority exists. Indeed, it would be a cruel dereliction of congressional intent to
    condition satisfaction of the presentment requirement upon an agency’s organizational chart—
    something presumably unknown to the public-at-large and unknown to Plaintiffs when they filed
    their SF-95 forms.
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    5494/5495/5499/5513
    Plaintiffs herein quite properly provided “written notice of an incident, accompanied by a
    claim for money damages.” 
    28 C.F.R. § 14.2
    (a). The demand was clear and unequivocal. That
    is sufficient to meet the FTCA’s presentment requirement. For that reason, I would reverse the
    district court’s judgment.1         With those reservations in mind, I respectfully concur in the
    judgment as to the presentment issue, but not in the analysis.
    2. Discretionary Function Exception
    The government contends that Plaintiffs’ claims are “independently barred” by the
    FTCA’s discretionary function exception.               Under the discretionary function exception, the
    government is not liable for:
    [a]ny claim based upon an act or omission of an employee of the Government,
    exercising due care, in the execution of a statute or regulation, whether or not
    such statute or regulation be valid, or 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, whether or not the discretion
    involved be abused.
    
    28 U.S.C. § 2680
    (a). Any claim that falls under the discretionary function exception must be
    dismissed for lack of subject-matter jurisdiction. Kohl v. United States, 
    699 F.3d 935
    , 940 (6th
    Cir. 2012).
    To determine whether the discretionary function exception applies, we apply a two-step
    test. See United States v. Gaubert, 
    499 U.S. 315
    , 322–23 (1991). The Court first asks “whether
    the challenged act or omission violated a mandatory regulation or policy that allowed no
    judgment or choice.” Kohl, 699 F.3d at 940 (quoting Rosebush v. United States, 
    119 F.3d 438
    ,
    441 (6th Cir. 1997)). “If there was such a violation of a mandatory regulation or policy, then the
    discretionary-function exception will not apply, because ‘there was no element of judgment or
    choice[.]’” 
    Id.
     (quoting Rosebush, 
    119 F.3d at 441
    ). In other words, when the government
    officials have “no rightful option but to adhere to the directive[,]” the discretionary function
    exception does not apply. Berkovitz by Berkovitz v. United States, 
    486 U.S. 531
    , 536 (1988).
    1
    We need not address whether the FTCA’s presentment requirement is jurisdictional.
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    5494/5495/5499/5513
    If, however, “there was room for judgment or choice in the decision made, then the
    challenged conduct was discretionary.” Kohl, 699 F.3d at 940. In such a case, the Court
    proceeds to the second step of the test and asks whether the challenged conduct was “of the kind
    that the discretionary function exception was designed to shield from liability.” Id. (quoting
    Rosebush, 
    119 F.3d at 441
    ). The discretionary function exception exists 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.” United States v. S.A. Empresa de
    Viacao Aerea Rio Grandense (Varig Airlines), 
    467 U.S. 797
    , 814 (1984). If the challenged
    “action involves choice or judgment that is ‘susceptible to policy analysis,’ then it falls within
    the discretionary-function exception.” Kohl, 699 F.3d at 940 (quoting Gaubert, 
    499 U.S. at 325
    ).
    When a policy “allows a Government agent to exercise discretion, it must be presumed that the
    agent’s acts are grounded in policy when exercising that discretion.” 
    Id.
     (quoting Sharp ex rel.
    Estate of Sharp v. United States, 
    401 F.3d 440
    , 443 (6th Cir. 2005)).
    Importantly, this Court has observed that protocols may allow for discretion as to “how
    and when they are to be implemented,” while at the same time being mandatory “as to whether
    they are to be implemented.” A.O. Smith Corp. v. United States, 
    774 F.3d 359
    , 367 (6th Cir.
    2014) (citing Navarette v. United States, 
    500 F.3d 914
    , 918 (9th Cir. 2007)).
    In this case, Plaintiffs’ failure-to-warn claims rests upon an argument that Park officials
    failed to follow the FMP, thereby failing to warn the public of the pending danger. As is relevant
    to this appeal, Plaintiffs contend (1) that Park officials failed to follow Section 3.3.2 and Table
    13 of the FMP, and (2) that those provisions are mandatory directives. The Court must therefore
    determine whether those provisions “allowed no judgment or choice.” Kohl, 699 F.3d at 940
    (quoting Rosebush, 
    119 F.3d at 441
    ).
    a. Section 3.3.2
    Section 3.3.2 provides that “Park neighbors, Park visitors and local residents will be
    notified of all planned and unplanned fire management activities that have the potential to impact
    them.” FMP, Reed, R. 1-7, Page ID #471 (emphasis added).
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    5494/5495/5499/5513
    Where a policy requires an official to make “an antecedent assessment or determination”
    into whether a “predicate condition exists[,]” that assessment “presents the [official] with a
    choice; does the condition exist or doesn’t it?” Myers v. United States, 
    17 F.3d 890
    , 895–96 (6th
    Cir. 1994). However, whether to conduct the antecedent assessment is not a choice: the official
    must conduct the assessment. See A.O. Smith Corp., 
    774 F.3d at 367
    . Moreover, if the official
    decides that the “predicate condition exists[,]” then the duties that follow are mandatory. Myers,
    
    17 F.3d at
    895–96.
    Section 3.3.2 includes two mandatory directives. First, it directs Park officials to conduct
    the antecedent assessment, i.e., to determine whether their fire management activities had the
    potential to impact Park neighbors, Park visitors, and local residents. See A.O. Smith Corp.,
    
    774 F.3d at 367
    . Second, if Park officials determine that their fire management activities have
    the potential to impact Park neighbors, Park visitors, and local residents, then Section 3.3.2
    requires that they notify those parties. See Myers, 
    17 F.3d at
    895–96. Accordingly, the only
    aspect of Section 3.3.2 that is discretionary is the result of the antecedent assessment. See 
    id.
    Therefore, the discretionary function exception cannot apply to Section 3.3.2 unless the
    government establishes as a factual matter that Park officials conducted the antecedent
    assessment and determined that their fire management activities did not have the potential to
    impact Park neighbors, Park visitors, and local residents. See 
    id.
     Such a decision would be
    discretionary because determining whether the “predicate condition” existed required officials to
    exercise their judgment.2 See 
    id.
    b. Table 13
    Table 13 describes “mitigation actions required to protect values at risk and to ensure the
    safety of park staff and visitors as well as the neighboring public.” FMP, Reed, R. 1-7, Page ID
    #498 (emphasis added). Among those required mitigation actions is that park officials “[i]nform
    park neighbors of wildland fires.” 
    Id.
     Plaintiffs allege the government did not inform them
    about the Fire, thereby violating Table 13’s clear directive.
    2
    In such a case, the district court would then have to apply the second step of the discretionary function
    exception test to Section 3.3.2. See Kohl, 699 F.3d at 940.
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    5494/5495/5499/5513
    Table 13 is a mandatory directive. It states in plain language that Park officials are
    “required to . . . [i]nform park neighbors of wildland fires.” Id. Although Table 13 does not
    “specify how and when” officials should inform Park neighbors of wildland fires, it is
    “nondiscretionary as to whether” Park officials are required to take such action. A.O. Smith
    Corp., 
    774 F.3d at
    367 (citing Navarette, 
    500 F.3d at 918
    ).
    c. Facial and Factual Attacks
    Having established that Section 3.3.2 and Table 13 contain mandatory directives, it
    becomes important to examine the government’s facial and factual arguments that the
    discretionary function exception applies to Plaintiffs’ claims. “Rule 12(b)(1) motions to dismiss
    based upon subject matter jurisdiction generally come in two varieties. A facial attack on the
    subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the
    pleading.” Ohio Nat. Life Ins. Co. v. United States, 
    922 F.2d 320
    , 325 (6th Cir. 1990). When
    reviewing a 12(b)(1) motion based upon a facial attack, “a trial court takes the allegations in the
    complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.” 
    Id.
    However, “when a court reviews a complaint under a factual attack . . . no presumptive
    truthfulness applies to the factual allegations.” 
    Id.
     When reviewing a 12(b)(1) motion based
    upon a factual attack, a district court must “weigh the conflicting evidence to arrive at the factual
    predicate that subject matter jurisdiction exists or does not exist.” 
    Id.
     In doing so, the district
    court “has wide discretion to allow affidavits, documents and even a limited evidentiary hearing
    to resolve disputed jurisdictional facts.” 
    Id.
    When the government makes a facial attack based upon the discretionary function
    exception, the plaintiff bears the burden of demonstrating that subject matter jurisdiction exists.
    Carlyle v. U.S., Dep’t of the Army, 
    674 F.2d 554
    , 556 (6th Cir. 1982). However, once “a
    plaintiff has successfully invoked jurisdiction by a pleading that facially alleges matters not
    excepted by” the discretionary function exception, the burden of showing that the exception
    applies shifts to the government. 
    Id.
    In this case, the government filed two 12(b)(1) motions concerning the discretionary
    function exception. The first was a facial attack. The district court correctly denied that motion.
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    5494/5495/5499/5513
    As discussed above, Section 3.3.2 and Table 13 contain mandatory directives. Because Plaintiffs
    allege that Park officials failed to follow those directives, the government’s facial attack fails.
    See Kohl, 699 F.3d at 940.
    The second 12(b)(1) motion invoking the discretionary function exception was a factual
    attack. The district court denied that motion as well. Because the motion made a factual (as
    opposed to facial) attack, the government had the burden of showing that the discretionary
    function exception applied.     Carlyle, 
    674 F.2d at 556
    .        The district court held that the
    government failed to furnish sufficient evidence to show that Park officials complied with
    Section 3.3.2 and Table 13’s mandatory directives.
    Before the district court, the government relied on three pieces of evidence to prove that
    it complied with Section 3.3.2 and Table 13, none of which is sufficient. First, it pointed to press
    releases and an E-Blast. However, the government only stated that “the press releases were sent
    ‘to the Park’s list of press release recipients, which included more than 50 media outlets,
    25 government entities, 50 private organizations, and other individuals.’” Mem. Op., Reed,
    R. 87, Page ID #3520. Similarly, the government only provided that Park officials sent the E-
    Blast to “media outlets and other organizations and individuals.” 
    Id.
     The district court correctly
    determined that the government “cannot rely on the press releases and an E-Blast to satisfy a
    requirement to notify ‘Park Neighbors, Park visitors, and local residents’ when it doesn’t tell the
    [district court] where the press releases and E-Blast were sent to.” 
    Id.
    Second, the government relied “on the information posted to websites and social media
    accounts.” 
    Id.
     But, as the district court correctly held, “posting information on websites and
    social media accounts is not the same as notifying ‘Park neighbors, Park visitors and local
    residents . . . of all planned and unplanned fire management activities that have the potential to
    impact them.’” 
    Id.
     (alteration in original). Finally, the government described communications
    between Park officials and Gatlinburg officials, but it failed to furnish a single declaration or
    deposition testimony from any relevant official to support its description. The government
    therefore failed to satisfy its burden of showing that the evidence establishes as a factual matter
    that the discretionary function exception applies.
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    5494/5495/5499/5513
    Accordingly, the district court correctly denied both motions to dismiss concerning the
    discretionary function exception. It is unclear whether the lead opinion agrees. That opinion
    does not address the difference between facial and factual challenges, nor does it discuss how the
    burden shifts depending on the nature of the challenge. It correctly determines that the district
    court wrongly held that “Section 3.3.2 was not discretionary solely because it does not include
    the exact ‘if/then’ language that the Court highlighted in Myers,” but fails to rule on whether the
    government’s facial challenge succeeds. As to the factual challenge, the lead opinion determines
    that “remand is appropriate for the district court to consider this evidence related to the
    government’s factual discretionary-function argument.” In so doing, the lead opinion ignores
    that the government had its chance to present such evidence and failed carry its burden. See
    Carlyle, 
    674 F.2d at 556
    .
    Unlike the lead opinion, I would expressly hold that the district court correctly denied
    both 12(b)(1) motions that invoke the discretionary function exception. Such a holding would
    not foreclose the government from furnishing evidence at a later time to show that Park officials
    complied with Section 3.3.2 and Table 13.
    3. Misrepresentation Exception
    The lead opinion correctly asserts that the government’s argument concerning the
    misrepresentation exception fails because Plaintiffs allege negligence, not misrepresentation.
    See United States v. Neustadt, 
    366 U.S. 696
    , 711 n.26 (1961). However, the government now
    argues for the first time that Plaintiffs “failed to allege any breach of state-law duty [by Park
    officials] distinct from” their obligations under federal law. The government should not be given
    carte blanche to pursue a new misrepresentation exception argument via a fifth motion to
    dismiss.
    III. CONCLUSION
    For the reasons set forth above, I would REVERSE the district court’s judgment as to the
    presentment issue and REMAND for further proceedings consistent with this opinion. I would
    likewise reject the government’s invitation to affirm on alternate grounds concerning the
    discretionary function and misrepresentation exceptions.
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    ___________________
    CONCURRENCE
    ___________________
    THAPAR, Circuit Judge, concurring.           The lead opinion thoughtfully and correctly
    resolves this sad, unusual, and highly fact-bound appeal. I write to offer one clarification and
    express one small disagreement.
    First, the plaintiffs barely satisfied the FTCA’s presentment requirement. Everyone
    agrees that requirement is meant to give the government the opportunity to investigate potential
    claims. See Copen v. United States, 
    3 F.4th 875
    , 882 (6th Cir. 2021). Here, the plaintiffs didn’t
    tell the government they were bringing failure-to-warn claims, but they did make other claims.
    And those claims would have led the government straight to Greg Salansky. He managed all
    aspects of the government’s response to the Fire: monitoring, extinguishing, and warning. So
    even though the plaintiffs didn’t say they were bringing failure-to-warn claims, their claims were
    sufficient to trigger an investigation into Salansky’s wide-ranging responsibilities. This was a
    risky strategy, but it worked for these plaintiffs. Future plaintiffs shouldn’t take the same risk.
    What about Judge Clay’s argument that these kinds of cases shouldn’t depend on “an
    agency’s organizational chart”? Op. of Clay, J., at 24. I agree. And there’s a simple way to
    avoid that problem: plaintiffs should clearly state what claims they plan to bring. That way, the
    government can fully investigate, and the case won’t depend on organizational charts.
    Second, I cannot join one aspect of the lead opinion. According to the lead opinion,
    Section 3.3.2 of the Fire Management Plan imposes two requirements: officials must (1) assess
    fire-management activities and (2) notify community members if any such activities may affect
    them. In my view, Section 3.3.2 supports the second requirement but not the first.
    Start with the text. “Park neighbors, Park visitors and local residents will be notified of
    all planned and unplanned fire management activities that have the potential to impact them.”
    R. 1-7, Pg. ID 471. The plain language imposes a notice requirement. If a fire has the potential
    to impact visitors and local residents, park officials must notify them of the fire.
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    The problem with the lead opinion is that it imposes an additional assessment
    requirement that’s not in the text.       Respectfully, that’s not our role.       We interpret the
    requirements provided in the text—we can’t add new ones. See Jude v. Comm’r Soc. Sec., 
    908 F.3d 152
    , 161 (6th Cir. 2018). Myers v. United States, the case the lead opinion cites, followed
    this basic rule. 
    17 F.3d 890
     (6th Cir. 1994). The regulations and statutes in that case explicitly
    required inspections “at least four times a year” or more often if the mine was “especially
    hazardous.” 
    Id. at 893
    . By contrast, here there is no mandatory assessment provision like the
    inspection provision in Myers.
    Since we are not at liberty to add an assessment provision, I cannot concur in that portion
    of the lead opinion. But in all other respects, I agree with its resolution of this difficult and fact-
    intensive appeal.