James Dovenberg v. USA, et al, No. 10-35007 (9th Cir. 2010)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 22 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS JAMES DOVENBERG, Plaintiff - Appellant, No. 10-35007 D.C. No. 3:08-cv-00889-MO v. MEMORANDUM * UNITED STATES OF AMERICA, by and through the United States Forest Service; UNITED STATES FOREST SERVICE; STATE OF OREGON, by and through the Oregon Department of Forestry; OREGON DEPARTMENT OF FORESTRY, Defendants - Appellees. Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding Argued and Submitted December 7, 2010 Seattle, Washington * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: O SCANNLAIN and TALLMAN, Circuit Judges, and EZRA, District Judge.** James Dovenberg appeals from the district court s dismissal of his suit against the United States and the United States Forest Service ( Forest Service ) for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). As the facts are known to the parties, we repeat them here only as necessary to explain our decision. Dovenberg s complaint challenges broadly the government s allegedly negligent training, supervision, and instruction of Forest Service personnel working on Dovenberg s land while fighting and remediating damage from the 14,000-acre Shake Table Complex wildfire in 2006. Decisions regarding the training and supervision of government employees fall squarely within the discretionary function exception to the Federal Tort Claims Act, Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000), as does the Forest Service s choice of how to fight a wildfire, see Miller v. United States, 163 F.3d 591, 595 96 (9th Cir. 1998). Dovenberg s claims against the government are therefore barred. See 28 U.S.C. ยง 2680(a). The district court s grant of the government s motion to dismiss is AFFIRMED. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.
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