Opinion
No. CV 05-3969-PCT-ECV.
May 1, 2006
ORDER
Pending before the court is Defendant's Motion to Dismiss (Doc. #9), filed on March 7, 2006. Defendant seeks dismissal of this action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Plaintiffs filed a Response to Motion to Dismiss (Doc. #11) on April 4, 2006, after which Defendant filed a Reply (Doc. #12) on April 18.
Plaintiffs filed a Complaint (Doc. #1) on December 6, 2005, in which they allege liability against the United States Department of the Interior under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671. Plaintiffs allege that in June 2002, their property was substantially damaged by the "Rodeo Fire." They allege that Defendant undertook the responsibility to fight the fire but performed their firefighting duties negligently. Defendant argues in its motion that it retains sovereign immunity against Plaintiffs' claims because its firefighting activities involved the performance of discretionary functions. Plaintiffs argue in response that Defendant has presented no facts for the court to conclude that the discretionary function exception applies here.
The FTCA provides a waiver of the government's sovereign immunity for torts committed by government employees while acting within the scope of their employment. 28 U.S.C. § 1346(b); Kelly v. United States, 241 F.3d 755, 759 (9th Cir. 2001). In such cases, the government may be held liable for negligence to the same extent as a private person under similar circumstances.Id. The FTCA's waiver of immunity, however, is limited by several exceptions, one of which is the "discretionary function" exception. Kelly, 241 F.3d at 759-60; Marlys Bear Medicine, 241 F.3d 1208, 1213 (9th Cir. 2001). Under this exception, the government is not liable for claims
based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680(a). In cases where the discretionary function exception applies, the court lacks subject matter jurisdiction.Kelly, 241 F.3d at 760.
In Berkovitz v. United States, 486 U.S. 531, 536 (1988), the Supreme Court established a two part test to determine whether the discretionary function exception applies. First, the court must examine the nature of the challenged conduct and "consider whether the action is a matter of choice for the acting employee." Id. "Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. Second, "assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. This element reflects one of the purposes of the discretionary function exception, which is to prevent judicial "second-guessing" of governmental decisions based on political, social and economic judgments. Id. "Whether a challenged action falls within the discretionary function exception requires a particularized analysis of the specific agency action challenged." Kelly, 241 F.3d at 760. The government bears the burden of proving the applicability of the discretionary function exception. Marlys Bear Medicine, 241 F.3d at 1213.
Here, Plaintiffs allege in their complaint that Defendant acted negligently when fighting the Rodeo Fire. For example, they allege that Defendant, "in the process of `back burning' to slow the advancement of the Rodeo Fire, failed to exercise reasonable care in the implementation of fire fighting techniques." Doc. #1 at 2. They further allege that agents of Defendant "engaged in actions that caused or precipitated the causes of the Rodeo Fire . . .," and that Defendant "failed to use reasonable care in the performance of implementing fire safety measures and fire fighting techniques." Id. In addition, Plaintiffs allege that Defendant improperly interfered with local firefighting authorities and failed to adequately train the individuals entrusted to carry out Defendant's policies. Id. at 2-3.
The court finds that Defendant's motion fails to demonstrate the applicability of the discretionary function exception. Defendant has not established through a particularized analysis of the agency's actions that such actions fall within the discretionary function exception. Admittedly, Plaintiffs allegations are vague and do not permit a particularized analysis of the facts. However, the allegations appear to challenge at least some actions that do not involve the exercise or performance of discretionary functions. By challenging Defendant's implementation of fire safety measures and firefighting techniques, Plaintiffs suggest that prescribed firefighting policies and procedures were not followed. Such actions would not be covered by the discretionary function exception.
In reviewing a facial challenge to subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court must take the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Because Defendant has failed to show that Plaintiff's allegations fall within the discretionary function exception, the motion to dismiss will be denied.
IT IS THEREFORE ORDERED:
That Defendant's Motion to Dismiss (Doc. #9) is denied.