21 F.4th 565
9th Cir.2021Background
- In August 2015 the North Star Fire (part of the larger Okanogan Fire Complex) threatened private property on the Colville Reservation; a Type 2 Incident Management Team (IMT) led firefighting operations.
- Division Supervisor Thomas McKibbin (BLM) decided to perform a controlled burnout on Esquivel and Willard’s 89.7-acre parcel as a defensive measure; he spoke with resident Willard before beginning.
- Willard alleges McKibbin promised precautionary measures (including spraying foam) and that Willard left the property in reliance on those assurances; the burnout later escaped supervision and burned 15 acres.
- Appellants submitted an administrative FTCA claim (denied), then sued in district court under the FTCA for negligent conduct related to the burnout and related communications.
- The district court dismissed for lack of subject-matter jurisdiction, holding the discretionary function exception barred the claims and that allegations of deceit fell within the FTCA’s misrepresentation exception; it also denied jurisdictional discovery.
- The Ninth Circuit affirmed: communications about the burnout were part of discretionary, policy-based fire-suppression decisions and, alternatively, claims premised on alleged lies are barred by the misrepresentation exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discretionary function exception bars FTCA claims based on McKibbin’s communications about the burnout | Communications were separate, informational, and not policy-driven, so exception should not apply | Communications were integral to the decision how to conduct suppression (a discretionary, policy-driven function) | Exception applies; statements were "based upon" discretionary suppression decisions |
| Whether the FTCA’s misrepresentation exception bars claims alleging McKibbin lied about precautions (e.g., foam) inducing Willard’s reliance | Willard relied on misstatements, causing damage; reliance claims are actionable under FTCA | Misrepresentation exception §2680(h) bars claims arising from deceit or misrepresentation, including negligent misstatements | Exception applies to the reliance theory; such misrepresentation claims are barred |
| Whether the district court improperly made credibility or factual findings in resolving Rule 12(b)(1) | District court resolved credibility (improperly) | Court accepted plaintiffs’ allegations as true for jurisdictional analysis and did not resolve credibility | No error; court properly viewed facts in plaintiffs’ favor and decided jurisdictional statute questions |
| Whether denial of jurisdictional discovery was an abuse of discretion | Discovery was needed to show exceptions inapplicable and to test communications | Plaintiffs suffered no shown prejudice; assumptions in plaintiffs’ favor made discovery unnecessary for jurisdiction | No abuse of discretion; denial affirmed |
Key Cases Cited
- United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (discretionary-function exception limits FTCA waiver)
- United States v. Gaubert, 499 U.S. 315 (two-step discretionary-function test; presume policy-based when discretion exercised)
- Berkovitz v. United States, 486 U.S. 531 (first step: whether statute/regulation mandates action; second: whether decision involves policy considerations)
- Miller v. United States, 163 F.3d 591 (9th Cir.) (fire-suppression choices involve policy balancing and are covered by the discretionary-function exception)
- Green v. United States, 630 F.3d 1245 (9th Cir.) (distinguishes communications that are not shown to be policy-driven from those integral to suppression decisions)
- Kim v. United States, 940 F.3d 484 (9th Cir.) (FTCA misrepresentation exception bars claims for fraud or deceit by federal officers)
- Leaf v. United States, 661 F.2d 740 (9th Cir.) (example applying misrepresentation exception where owner relied on government misstatements)
- Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152 (9th Cir.) (misrepresentation exception covers negligent as well as intentional misstatements)
- Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Cir.) (negligence is irrelevant to the discretionary-function inquiry)