Morris v. United States: Negligent Undertaking Claims Survive FTCA Misrepresentation and Discretionary-Function Bars When the Gravamen Is Failure to Act After Undertaking Protective Steps

Court: United States Court of Appeals for the Fifth Circuit
Date: May 18, 2026
Case: Morris v. United States, No. 24-40576

1. Introduction

This appeal arises from a catastrophic act of violence inflicted on Brittany Morris by her ex-boyfriend, Rondell Malveaux, while he was on federal supervised release. Three days before the stabbing that left Morris a quadriplegic, Morris warned Malveaux’s federal probation officer, Beverly Matt, that Malveaux had made lethal threats and had already burglarized her home and attacked her friend. Morris alleged that Officer Matt promised immediate protective steps—most notably urgent action to secure a warrant and ensure Morris could safely remain at home—but then failed to take basic follow-up actions (including promptly notifying the court, the U.S. Attorney’s Office, and local law enforcement of the escalating danger).

Morris sued the United States under the Federal Tort Claims Act (FTCA), asserting negligence and negligent undertaking. The district court dismissed for lack of subject-matter jurisdiction, holding the suit was barred by the FTCA’s misrepresentation exception because Officer Matt’s promises and communications were “key” to the claim. The Fifth Circuit reversed, holding Morris alleged an actionable operational negligence/negligent undertaking claim distinct from misrepresentation, and further holding that (on the pleadings) the discretionary function exception did not apply.

2. Summary of the Opinion

  • Misrepresentation exception: The Fifth Circuit held the gravamen of at least one claim is not negligent communication but an alleged negligent failure to take minimal protective actions after undertaking to do so. Therefore, the FTCA misrepresentation exception does not bar jurisdiction.
  • Discretionary function exception: Even assuming Officer Matt had discretion, the court held Morris plausibly alleged the challenged inaction was not “susceptible to policy analysis” because Officer Matt had already made the policy-laden decision to seek an expedited warrant due to extreme danger, and the alleged tort is the failure to carry out that decision with due care.
  • Disposition: The judgment was REVERSED and the case REMANDED.

3. Analysis

3.1 Precedents Cited

A. Misrepresentation exception framework and “gravamen” analysis

  • Block v. Neal, 460 U.S. 289 (1983): The central Supreme Court anchor. Block held the FTCA misrepresentation exception does not automatically bar a negligence theory (there, negligent undertaking) merely because misrepresentations overlap factually; the decisive question is whether the claim rests on breach of a duty distinct from “the communication of misinformation on which the recipient relies.” The Fifth Circuit treated Block as controlling because Morris alleged failure to perform an operational protective undertaking, not merely failure to speak accurately.
  • United States v. Neustadt, 366 U.S. 696 (1961): The counterpoint. Neustadt applied the misrepresentation exception where the plaintiff’s injury was entirely dependent on reliance on an erroneous appraisal—i.e., the “duty to use due care in obtaining and communicating information.” The Fifth Circuit distinguished Morris’s case because her alleged injury did not depend solely on reliance on misinformation; it depended on an alleged failure to act (expedite a warrant and safety steps) after undertaking to do so.
  • Life Partners Inc. v. United States, 650 F.3d 1026 (5th Cir. 2011): The Government’s primary Fifth Circuit authority. Life Partners barred claims where the injury would not have occurred “absent the misrepresentation.” The court found Morris’s claim not “wholly eclipsed” by misrepresentation because operational inaction allegedly caused the harm even apart from what was said.
  • Metropolitan Life Ins. Co. v. Atkins, 225 F.3d 510 (5th Cir. 2000): Used to show that when the focal point is negligent performance of an operational task (e.g., misplacing/handling a file), misrepresentation is “collateral” even if better communication might have prevented the loss. The court analogized: even if Officer Matt’s communications mattered, the cornerstone was allegedly negligent operational delay/inaction.
  • Saraw P'ship v. United States, 67 F.3d 567 (5th Cir. 1995): Reinforced the “causa sine qua non”/essence inquiry—identify the “essential act that spawned” the harm. The Fifth Circuit drew from Saraw to characterize the essential act here as failure to act with reasonable care in executing protective steps, not failure to communicate.
  • McNeily v. United States, 6 F.3d 343 (5th Cir. 1993): Cited for the proposition that even a distinct cause of action is barred if the underlying governmental conduct essential to it can fairly be read to “arise out of” misrepresentation. The Fifth Circuit applied that caution but found Morris alleged a separable operational duty breach.
  • Truman v. United States, 26 F.3d 592 (5th Cir. 1994): Invoked to support that an accompanying communication failure does not necessarily convert a distinct negligence theory into misrepresentation when the gravamen is different.
  • Williamson v. Dep't of Agric., 815 F.2d 368 (5th Cir. 1987): Cited (via Block) for the critical distinction between a duty to communicate and other operational duties.

B. Negligent undertaking elements under Texas law

  • Le v. United States, 138 F.4th 264 (5th Cir. 2025): For FTCA choice-of-law—apply the state’s substantive tort law where negligence occurred (Texas).
  • In re First Rsrv. Mgmt., L.O., 671 S.W.3d 653 (Tex. 2023): For the Texas negligent undertaking duty principle—undertaking services necessary for another’s protection creates a duty to exercise reasonable care.
  • Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2014): Provided the Texas elements: undertaking protective services; failure of reasonable care; and either reliance or increased risk of harm.

C. Discretionary function exception: “susceptible to policy analysis”

  • United States v. Varig Airlines, 467 U.S. 797 (1984): Articulated that the exception prevents “judicial second-guessing” of policy-based administrative decisions; also supplied the “nature of the conduct” focus.
  • Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531 (1988): Provided the two-part test (judgment/choice; and conduct of the kind designed to be shielded). Also offered the lighthouse illustration (via Indian Towing Co. v. United States, 350 U.S. 61 (1955)) separating policy to undertake from negligent maintenance.
  • United States v. Gaubert, 499 U.S. 315 (1991): Clarified that “operational level” actions can be discretionary, created a “strong presumption” that discretionary acts implicate regulatory policy, and focused the inquiry on susceptibility to policy analysis rather than actual subjective deliberation.
  • Spotts v. United States, 613 F.3d 559 (2010): For the principle that actual policy analysis is irrelevant; the question is susceptibility.
  • Barron v. United States, 31 F.4th 347 (5th Cir. 2022): Restated the two-part discretionary function test and the “kind designed to shield” formulation.
  • Gonzalez v. United States, 851 F.3d 538 (5th Cir. 2017): Demonstrated when warning/notice decisions on public lands are policy-laden due to resource allocation and competing objectives; used as a contrast because there the challenged conduct coincided with policy balancing.
  • In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (La. Plaintiffs), 713 F.3d 807 (5th Cir. 2013), and Freeman v. United States, 556 F.3d 326 (5th Cir. 2009): Showed resource-allocation choices in emergencies are classic discretionary-policy decisions.
  • Gibson v. United States, 809 F.3d 807 (5th Cir. 2016), and Gotha v. United States, 115 F.3d 176 (3d Cir. 1997): Used to illustrate that “mundane” housekeeping/administrative decisions (like stairs on trailers) are not necessarily the kind of public-policy judgments the exception protects.
  • Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995): Important persuasive authority explaining how prior policy decisions can drain later implementation choices of policy content; the Fifth Circuit used it to support treating Officer Matt’s alleged failure to execute an already-made urgent decision as non-policy-laden.
  • Shanksy v. United States, 164 F.3d 688 (1st Cir. 1999): Cited for case-by-case necessity.
  • Denham v. United States, 834 F.2d 518 (5th Cir. 1987), Hayes v. United States, 899 F.2d 438 (5th Cir. 1990): Cited to note the now-rejected planning/operational dichotomy (rejected by Gaubert).
  • Fair v. United States, 234 F.2d 288 (5th Cir. 1956), and Payton v. United States, 679 F.2d 475 (5th Cir. Unit B 1982) (en banc): Older Fifth Circuit authority used for the notion that once the government undertakes a task (or makes a choice), negligent failure to carry it out may be actionable even if the original decision was discretionary.
  • Empower Texans, Inc. v. Geren, 977 F.3d 367 (5th Cir. 2020): Cited for the precedential status of Unit B opinions.

3.2 Legal Reasoning

A. Misrepresentation exception: separating “what was said” from “what was (not) done”

The district court treated Officer Matt’s assurances (“immediately,” “make sure Morris was not in danger,” “ensure that Morris was safe to stay in her home”) as the lynchpin of causation and thus as a barred misrepresentation theory. The Fifth Circuit reframed the proper inquiry using its two-step approach from Life Partners Inc. v. United States and the Supreme Court’s “gravamen” analysis from Block v. Neal:

  • The court looked for the “focal point” of the pleaded tort: negligent communication or negligent performance of an operational task.
  • Although Morris’s complaint included allegations about what Officer Matt should have told her, the court held those allegations were not the essence of the claim.
  • The actionable nucleus was the alleged failure, after undertaking to act, to take minimal steps to pursue the warrant urgently and to alert proper authorities of immediate danger—conduct that would be wrongful even if no promise had been made.

Critically, the court treated reliance as non-dispositive: negligent undertaking under Texas law can include reliance (Nall v. Plunkett), yet Block v. Neal teaches that such reliance does not automatically convert the claim into misrepresentation where the duty breached is distinct from a duty to communicate accurate information.

B. Discretionary function exception: policy discretion ends where non-policy implementation negligence begins (on these pleadings)

The Government invoked the Eastern District of Texas Post-Conviction Supervision Policy and Procedure Manual to argue probation responses require balancing public safety, supervision goals, and proportionality—therefore, the inaction was “susceptible to policy analysis.”

The Fifth Circuit accepted that probation work often involves policy-laden judgment, and it even agreed that deciding to seek an expedited warrant could be such a decision. But it located the alleged tort elsewhere: after deciding the urgent course, Officer Matt allegedly did not execute it for days despite escalating violence and clear danger.

  • Under Berkovitz ex rel. Berkovitz v. United States / United States v. Gaubert, the key is whether the challenged conduct is the kind the exception was designed to shield—i.e., grounded in public policy and susceptible to policy analysis.
  • Using analogies drawn from Cope v. Scott and the Indian Towing Co. v. United States illustration, the court held prior policy decisions can deprive a later step of policy content: once the officer decided “immediately,” the remaining task resembled routine implementation (at minimum, promptly informing the court and appropriate federal authorities of imminent danger).
  • The court emphasized the narrowness: it was not imposing liability for every negligent implementation, but holding that the particular alleged inaction—after a determined urgent decision—was not plausibly policy-driven in the way § 2680(a) protects.

3.3 Impact

  • Misrepresentation exception narrowed in protective-duty contexts: The opinion reinforces that plaintiffs may plead around § 2680(h) not by artful relabeling, but by alleging a genuinely distinct operational-duty breach (here, failure to pursue urgent protective steps) even when the facts include assurances or omissions in communication.
  • Greater FTCA exposure for “undertaken” protective actions: When federal actors undertake to provide protective services and then allegedly fail to act with reasonable care, courts may treat the undertaking as creating actionable duties under state law (here, Texas) that are not subsumed by misrepresentation.
  • Discretionary function exception constrained where policy choice is already made: For probation/supervision scenarios, the case suggests a line between (i) discretionary selection among enforcement strategies (often protected) and (ii) negligent non-execution of an already-selected urgent response (potentially not protected), especially where the alleged lapse is simple delay or failure to relay urgent risk information to the appropriate decisionmakers.
  • Pleading and jurisdictional posture matters: The court repeatedly anchored its analysis in the Rule 12(b)(1) posture (taking allegations as true). On remand, factual development may still affect the merits and may revive defenses (including discretionary-function arguments on a more developed record).

4. Complex Concepts Simplified

  • FTCA (Federal Tort Claims Act): A statute that allows people to sue the United States for certain torts committed by federal employees, but only within defined limits and subject to exceptions.
  • Sovereign immunity and “jurisdiction”: The United States can’t be sued unless it consents. FTCA exceptions (like misrepresentation or discretionary function) remove that consent—meaning courts lack power (“jurisdiction”) to hear the case.
  • Misrepresentation exception (§ 2680(h)): Bars claims that fundamentally seek recovery for harm caused by false or misleading government statements (or omissions) on which the plaintiff relied. The key is whether the core wrong is “bad information,” not whether communication appears somewhere in the story.
  • Negligent undertaking: Even if someone had no initial duty to protect you, once they undertake protective services, they must use reasonable care. Under Texas law (Nall v. Plunkett), liability can arise if the plaintiff relied on the undertaking or if the undertaking increased the risk of harm.
  • Discretionary function exception (§ 2680(a)): Bars claims challenging governmental judgments grounded in social, economic, or political policy. The question is not whether the employee was careless, but whether the challenged act is the kind of policy-based choice Congress wanted shielded from tort suits.
  • “Susceptible to policy analysis”: A decision can be protected even if no one actually weighed policy at the time; if the decision is of a type that inherently involves policy tradeoffs, it is protected. Here, the court held the alleged post-decision inaction was not plausibly of that type.

5. Conclusion

strengthens two jurisdictional guardrails in FTCA litigation while clarifying their limits. First, it reaffirms Block v. Neal: the FTCA misrepresentation exception does not bar a negligence or negligent undertaking claim when the alleged wrong is the failure to perform an operational protective task with due care, even if communications and assurances overlap factually. Second, it constrains expansive use of the discretionary function exception in supervision contexts by holding that, where an officer has already made the policy-laden choice to act urgently, an alleged failure to take basic follow-through steps may be treated (at the pleading stage) as non-policy implementation negligence outside § 2680(a).

Key takeaway: Under the Fifth Circuit’s approach here, an FTCA plaintiff may proceed when the “gravamen” is not misinformation itself but an alleged negligent failure to act with reasonable care after undertaking protective measures—particularly when the challenged inaction is not plausibly tied to policy balancing because the decisive policy choice has already been made.