Cruz Esquivel v. United States, No. 20-35868 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's dismissal based on lack of subject matter jurisdiction of a Federal Tort Claims Act (FTCA) case brought by landowners, seeking damages when their property was intentionally burned by a Type 2 Incident Management Team, convened by the U.S. Forest Service, during a controlled burnout performed as part of the fire suppression effort to combat the 2015 North Star Fire in Washington.
The panel concluded that the government has met its burden of establishing that plaintiffs' claims fall within the scope of the discretionary function exception. Accepting as true the factual allegations contained in the complaint, the panel concluded as a matter of law that a land management employee's communication with Plaintiff Willard was based upon the exercise or performance of choosing how to organize and conduct fire suppression operations, which undisputedly requires the exercise of judgment grounded in social, economic, or political policy. Furthermore, these claims regarding the employee's communication with Willard are independently barred by the FTCA's misrepresentation exception. The court also held that the district court did not make improper factual findings in resolving the Federal Rule of Civil Procedure 12(b)(1) motion and did not abuse its discretion by denying additional jurisdictional discovery.
Court Description: Federal Tort Claims Act. The panel affirmed the district court's dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act (“FTCA”) action seeking damages when appellants’ property was intentionally burned by a Type 2 Incident Management Team, convened by the U.S. Forest Service, during a controlled burnout performed as part of the fire suppression effort to combat the 2015 North Star Fire in Washington. The district court dismissed based on its holding that the FTCA claims fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity, and the FTCA’s misrepresentation exception. Concerning the discretionary function exception, the panel first considered whether the communications, regarding the precautionary measures that the fire crew would take while conducting the burnout, between Bureau of Land Management employee Thomas McKibben and property resident Donald Willard involved an element of ESQUIVEL V. UNITED STATES 3 judgment or choice. Appellants did not dispute that McKibben’s communications with Willard were discretionary. In addition, the government cited to numerous provisions of the Forest Service Manual (“FSM”) that exuded discretion by the Forest Service when determining how best to fight wildland fires. The panel concluded that McKibben’s statements to Willard were discretionary. The panel next considered whether the communications reflected the exercise of judgment grounded in social, economic, or political policy. The panel held that McKibben’s communication with Willard was based upon the exercise or performance of choosing how to organize and conduct fire suppression operations, which indisputably required the exercise of judgment grounded in social, economic, or political policy. The panel concluded that the government met its burden of establishing that appellants’ claims fell within the scope of the discretionary function exception. The panel next considered whether appellants’ claims were independently barred by the FTCA’s misrepresentation exception. Under this exception, claims against the United States for fraud or misrepresentation by a federal officer are absolutely barred. Appellants argued that they suffered a loss (the burning of 15 acres) as a result of Willard’s decision to leave the property, made in reliance on McKibben’s intentionally false statement that he would use foam or control the burnout. The panel held that the alleged misrepresentation in this case was not collateral to the gravamen of the complaint. By Willard’s own account, the alleged misrepresentations were within the chain of causative events upon which their claim was founded, and within the misrepresentation exception. The panel concluded that the claims regarding McKibben’s 4 ESQUIVEL V. UNITED STATES communications with Willard were independently barred by the FTCA’s misrepresentation exception. Finally, the panel considered whether the district court made improper factual findings in resolving the Fed. R. Civ. P. 12(b)(1) motion and improperly denied additional jurisdictional discovery in the case. The panel held that contrary to appellants’ argument, the district court was not resolving serious matters of credibility on a summary basis, but instead the district court was viewing the facts alleged in the light most favorable to appellants and concluding that, even were it to take those facts as true, the court lacked subject matter jurisdiction over the case. This was not error. The panel held further that the district court did not abuse its discretion in refusing to allow further jurisdictional discovery.
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