606 F.Supp.3d 1040
E.D. Wash.2022Background
- On July 30, 2016 a tracer round fired during U.S. Army live-fire training at Yakima Training Center (Range 12) ignited the Range 12 Fire, which spread off-post and damaged plaintiffs’ cattle operations.
- The night before multiple small fires prompted a tactical pause; on July 30 Lt. Col. Mathews and Senior Range Officer (SRO) Holman discussed additional mitigations (extra firefighting resources, tactical pause after a “small number” of fires, and ceasefire if local red-flag winds materialized).
- Non-tracer ammunition could not be drawn that Saturday from the Logistics Readiness Center (LRC), so tracer rounds were used; Lt. Col. Mathews left certain judgments (when to pause) to SRO Holman’s discretion.
- Real-time wind monitoring was limited at Range 12; Range Control that could measure wind was 8–10 miles away. Multiple factual discrepancies existed about what orders Mathews issued and what Holman knew.
- Plaintiffs sued under the Federal Tort Claims Act alleging negligence, trespass, nuisance, and statutory violation; the Government moved to dismiss under the FTCA’s discretionary function exception (DFE). After the Ninth Circuit remanded for an evidentiary hearing, the district court held a hearing, found the challenged acts discretionary and policy-grounded, and dismissed the complaint with prejudice for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the challenged conduct involved judgment or choice (DFE first prong) | Mathews issued specific mandatory restrictions (pause after a small number of fires; stop if red-flag winds); Holman violated those orders | Mathews’ oral restrictions were not clear, specific, or mandatory and left discretion to Holman; decisions involved judgment | Court: Order and restrictions were not sufficiently specific to eliminate discretion; first prong satisfied (discretion present). |
| Whether a mandatory policy requiring effective communication was violated | Army risk-management guidance imposed a duty to communicate and implement controls, which was breached | The pamphlet/guidance is advisory and framed to preserve flexibility; no binding regulation was violated | Court: Guidance was not a binding mandatory directive; communication issues did not eliminate discretion. |
| Whether use of tracer ammunition (and inability to draw non-tracer) violated a mandatory rule | LRC employees should have been on-call to supply non-tracer ammo; failure increased fire risk and violated obligation | No Army rule shows LRC personnel were required to respond that day; use of tracer rounds was permitted and discretionary | Court: No mandatory supply rule shown; ammunition/use decision was discretionary. |
| Whether the conduct involved social, economic, or political policy (DFE second prong) | Plaintiffs implied safety considerations predominated and implementation choices were not policy-driven | Continuing training balanced military readiness and fire risk, implicating policy judgments the DFE protects | Court: Decision to continue training involved policy balancing of military readiness vs. fire risk and is shielded by the DFE; FTCA claim barred. |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (1991) (two-part test for the discretionary function exception)
- Berkovitz v. United States, 486 U.S. 531 (1988) (DFE applies only where conduct involves judgment and is susceptible to policy analysis)
- United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984) (DFE prevents judicial second-guessing of policy decisions)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (federal courts are courts of limited jurisdiction)
- Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015) (FTCA waiver and sovereign immunity principles)
- Gonzalez v. United States, 814 F.3d 1022 (9th Cir. 2016) (government bears burden to show DFE applies)
- Nurse v. United States, 226 F.3d 996 (9th Cir. 2000) (strong presumption that discretionary acts involve policy)
- Sabow v. United States, 93 F.3d 1445 (9th Cir. 1996) (guidelines with some mandatory language may remain discretionary)
- Lam v. United States, 979 F.3d 665 (9th Cir. 2020) (mandatory-sounding guidance does not transform otherwise discretionary framework into binding regulation)
- Wood v. United States, 845 F.3d 123 (4th Cir. 2017) (military operational decisions are conduct the DFE was designed to shield)