Anderson et al v. United States of America et al, No. 1:2018cv03011 - Document 156 (E.D. Wash. 2022)

Court Description: ORDER GRANTING 39 DEFENDANT'S MOTION TO DISMISS; denying 135 Plaintiff's Motion in Limine. Plaintiff's Second Amended Complaint is DISMISSED with prejudice. Case is closed. Signed by Chief Judge Stanley A Bastian. (AY, Case Administrator)

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Anderson et al v. United States of America et al Case 1:18-cv-03011-SAB Doc. 156 ECF No. 156 filed 06/10/22 PageID.7863 Page 1 of 27 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Jun 10, 2022 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 CARL ANDERSON, an individual; No. 1:18-CV-003011-SAB 11 MARSHALL ANDERSON, an 12 individual; ELMER C. ANDERSON, ORDER GRANTING 13 INC., a Washington Corporation; JEFF DEFENDANT’S MOTION TO 14 WIERSMA, an individual; J2 DISMISS 15 CATTLE CO., a Washington 16 Corporation; S. MARTINEZ 17 LIVESTOCK, INC., a Washington 18 Corporation; and NICK MARTINEZ, 19 an individual, 20 Plaintiffs, 21 v. 22 UNITED STATES OF AMERICA, 23 24 Defendant. Before the Court is the Defendant United States of America’s Rule 12(b)(1) 25 Motion to Dismiss Under FTCA’s Discretionary Function Exception, ECF No. 39. 26 The Court held an evidentiary hearing on the motion on March 21 and 22, 2022, in 27 Spokane, Washington. Matthew Campos and Gregory Lighty appeared on behalf 28 of Plaintiffs. Timothy Durkin, Derek Taylor, and John Drake appeared on behalf of ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *1 Dockets.Justia.com Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7864 Page 2 of 27 1 Defendant United States of America (the “Government”). The Court took the 2 matter under advisement. 3 This case is about a brush fire that ignited during a U.S. Army live fire 4 training exercise on July 30, 2016 at the Yakima Training Center. The fire spread 5 onto Plaintiffs’ properties and damaged their cattle business operations. Plaintiffs 6 bring the present action to recover damages under the Federal Tort Claims Act. 7 The Government moved to dismiss the case on the basis that the Court lacks 8 subject matter jurisdiction and Plaintiffs’ claims are barred by the doctrine of 9 sovereign immunity. 10 In this case, the Government’s decision to continue live fire training on July 11 30th did not involve shortchanging or failing to implement specific safety policies 12 that were already adopted. Rather, Government actors on that day used permissible 13 judgment to balance competing policy considerations that were envisioned by U.S. 14 Army guidelines. For that reason, Plaintiffs’ claims fall within the discretionary 15 function exception to the Federal Tort Claims Act. The claims are barred by 16 sovereign immunity, and the Court lacks subject matter jurisdiction. Thus, the 17 Government’s motion is granted. 18 19 I. Procedural History Plaintiffs Carl Anderson, Marshall Anderson, Elmer C. Anderson, Inc., Jeff 20 Wiersma, and J2 Cattle, Co. filed the above-captioned case against Defendants the 21 United States of America, U.S. Army, and U.S. Department of Defense on January 22 25, 2018. ECF No. 1. Defendants filed an Answer to the Complaint on March 22, 23 2018, ECF No. 10, and a Motion to Dismiss for Lack of Jurisdiction against the 24 U.S. Army and U.S. Department of Defense on May 16, 2018, ECF No. 13. They 25 also filed a Motion to Dismiss for Lack of Jurisdiction over Plaintiffs’ inverse 26 condemnation and strict liability claims. ECF No. 16. 27 Plaintiffs filed a First Amended Complaint on June 26, 2018. ECF No. 21. 28 The following day, Defendants filed a Motion to Dismiss for Lack of Jurisdiction ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *2 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7865 Page 3 of 27 1 over five of the six remaining claims in the amended complaint. ECF No. 22. 2 Defendants filed an Answer to the First Amended Complaint on July 10, 2018. 3 ECF No. 24. They also submitted the present Motion to Dismiss for Lack of 4 Jurisdiction based on the discretionary function exception on September 18, 2018, 5 ECF No. 39. 6 Plaintiffs filed a Second Amended Complaint (“SAC”) on June 26, 2018, 7 which terminated the U.S. Army and U.S. Department of Defense as defendants, 8 added Nick Martinez and S. Martinez Livestock, Inc. as Plaintiffs, and removed 9 the causes of action for inverse condemnation and strict liability. ECF No. 99. The 10 amendment thus mooted Defendant’s initial Motions to Dismiss, ECF Nos. 13, 16. 11 On May 21, 2019, the Court granted the Defendant’s Motion to Dismiss for 12 Lack of Jurisdiction based on the discretionary function exception. ECF No. 111. 13 Plaintiffs appealed the Order, and the Ninth Circuit reversed and remanded on 14 October 20, 2020. ECF Nos. 121, 127. On December 17, 2020, the parties were 15 granted leave to conduct additional discovery and an evidentiary hearing was set. 16 ECF No. 128. 17 Plaintiffs filed a Motion in Limine regarding the evidentiary hearing on 18 February 18, 2022. ECF No. 135. The parties submitted exhibit lists and trial briefs 19 in anticipation of the same. ECF Nos. 138, 139, 142, 145. The evidentiary hearing 20 was held on March 21 and 22, 2022 in Spokane, Washington. ECF Nos. 149, 151. 21 The parties filed post-hearing briefs in April of 2022. ECF Nos. 154, 155. 22 23 II. Factual Background This case arises from a brush fire, referred to herein as the “Range 12 Fire,” 24 which ignited at the Yakima Training Center on July 30, 2016. The Range 12 Fire 25 started when a U.S. Army soldier fired a machine gun at a target using tracer 26 rounds during a live fire training. One of the tracer rounds ricocheted off the steel 27 target area and landed on some brush, which started the fire. The Range 12 Fire 28 spread beyond the YTC and onto Plaintiffs’ rangeland properties, causing property ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *3 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7866 Page 4 of 27 1 damage to Plaintiffs’ cattle businesses. Plaintiffs seek damages caused by alleged 2 negligent, tortious, and/or reckless acts of one or more of the U.S. Army soldiers 3 who started the fire during live weapons firing. 4 At the evidentiary hearing on March 21 and 22, 2022, the Court heard 5 testimony from the former Yakima Training Center Base Commander, Lieutenant 6 Colonel Jarett D. Mathews, and Yakima Training Center Senior Range Officer, 7 George D. Holman.1 The Court finds both witnesses to be credible. The following 8 factual findings derive from the evidence presented at the hearing and the parties’ 9 respective statements of material facts. 10 The Yakima Training Center (“YTC”) presents a 500-mile training and 11 firing range in southeastern Washington State, west of the well-known Hanford 12 Nuclear Reservation. It is the largest military land space in Washington State. The 13 YTC is associated with the U.S. Joint (Military) Base Lewis–McChord (“JBLM”), 14 which is located south of Tacoma in western Washington. The YTC’s primary 15 mission is to serve as an active military training area for JBLM Army troops and 16 other visiting units, which is estimated at between 10,000 and 40,000 troops at any 17 given time. YTC provides the opportunity to train in live fire training, maneuver, 18 and combined arms exercises to prepare American and allied soldiers for combat. 19 The principal structure at YTC is the Range Control Office, Building 1805 20 (“Range Control”), which is a few miles into YTC and south-centrally located. 21 Relevant to this matter, Range 12 is just one small piece of YTC. Range 12 is 22 located eight to ten miles away from Range Control. 23 The YTC’s landscape is mostly shrub-steppe, making it one of the largest 24 remaining shrub-steppe habitats in Washington. Modest hills and valleys dominate 25 the terrain, and the YTC has three distinct parallel ridges running east to west. 26 27 1 This Order utilizes Lt. Col. Mathews’ and Officer Holman’s ranks at the 28 time of the Range 12 Fire. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *4 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7867 Page 5 of 27 1 These elevated areas are part of the western perimeter of the Columbia River 2 Plateau. Given the YTC’s military training and live fire purpose, its steppe-shrub 3 brush terrain and high desert climate, it is susceptible to experiencing hundreds of 4 fires each year, principally man-made, but some natural or of unexplained origin. 5 Soldier personnel who are trained in brushfire suppression before training 6 reportedly suppress 80% of these fires. 7 In addition to fire awareness and brushfire suppression, each Army training 8 unit is required to perform a Risk Assessment of their proposed training activities. 9 During the wildland fire season (April 15th through September 30th), for example, 10 and among many other things, YTC utilizes a Live Fire Risk Matrix. The Fire 11 Matrix uses a fire weather adjective rating, along with wind readings, that produces 12 a numerical point value. The numeric point value determines the decision approval 13 authority to approve or authorize training during the wildland fire season. For 14 example, the Fire Matrix considers a red flag warning an elevated risk. The 15 National Oceanic and Atmospheric Administration provides that red flag 16 conditions exist when wind speeds are maintained at 15 miles per hour at least 20 17 feet off the ground for several hours. The Risk Assessment ensures that everyone 18 who is involved in training activities contemplates fire risk factors. 19 Lieutenant Colonel Jarret D. Mathews was the YTC Garrison Commander in 20 July 2016. As Garrison Commander, Lt. Col. Mathews was the senior military 21 officer at YTC and responsible for all operations at the installation. 22 Senior Range Officer George D. Holman was a civilian employee with 23 decades of experience in range control and management in July 2016. As a Senior 24 Range Officer, he was responsible for managing the YTC’s range/training complex 25 and supervising the range division. He maintained responsibility for the timing, 26 coordination, and safety of combined arms firing exercises. Officer Holman also 27 planned, directed, scheduled, and managed all range training activities; this role 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *5 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7868 Page 6 of 27 1 included developing solutions to range problems and recommending changes to 2 superiors. 3 A. July 29, 2016: Day Prior to the Range 12 Fire 4 A number of units were training at YTC on Friday, July 29, 2016—the day 5 before the Range 12 Fire—including the Company Bravo, 5th Battalion, 20th 6 Infantry (the “Army training unit”). The Army training unit was performing a 7 multitude of training exercises in preparation for a deployment. 8 Lt. Col. Mathews spent July 29th at JBLM, while Officer Holman was 9 present at the YTC installation. Officer Holman spoke with Lt. Col. Mathews by 10 phone in the evening and reported that several fires had ignited during training. 11 Officer Holman paused training and contacted Lt. Col. Mathews to reassess 12 conditions; this procedure is referred to as a tactical pause or safety stand-down. 13 Officer Holman testified that three small fires ignited on July 29th, which turned 14 into one large fire and required all assets and firefighters to extinguish. As noted, it 15 is not considered abnormal to have fires on the range while training during summer 16 months. Weapon systems can cause fires depending on what is fired and what they 17 have impacted, including vehicles like tanks. 18 Due to these fires, Lt. Col. Mathews and Officer Holman discussed the 19 status of the fire department and the need to refit and refresh the force. Officer 20 Holman suggested that training suspend for the night, and Lt. Col. Mathews agreed 21 to a pause of training to allow the fire department to refit. Lt. Col. Mathews and 22 Officer Holman agreed that they would reassess the next morning to ascertain the 23 weather conditions and status of the firefighters and fire resources. Since training 24 stopped prematurely, a serious incident report was submitted to higher commands, 25 as the missed time was reportable. 26 27 B. July 30, 2016: Day of the Range 12 Fire The morning of Saturday, July 30, 2016, Lt. Col. Mathews remained at 28 JBLM and was preparing to return to the YTC. Lt. Col. Mathews pulled decisionORDER GRANTING DEFENDANT’S MOTION TO DISMISS *6 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7869 Page 7 of 27 1 making authority for live fire training to his level, notwithstanding the number 2 determination on the Fire Matrix. 3 Before 7:00 a.m. that day, Lt. Col. Mathews spoke with Officer Holman on 4 the phone to discuss the tactical pause that occurred the night before. They 5 discussed the inability to draw—that is, to receive from a warehouse—non-tracer 6 ball ammunition for training that day. While all ammunition can cause fires, Lt. 7 Col. Mathews and Officer Holman thought using this type of ammunition would 8 reduce the fire risk, as tracer ball ammunition is generally understood to have a 9 higher hazard for fire. 10 The inability to draw the non-tracer ball ammunition was due to the 11 Logistics Readiness Call (“LRC”). The LRC was a warehouse under the authority 12 of the installation commander, which at the time was an adjacent and supporting 13 organization outside of Lt. Col. Mathews’ command and control. Officer Holman 14 contacted LRC to inquire about non-tracer ball ammunition, but civilian staff were 15 unavailable that Saturday—typically their day off—to facilitate the draw. Thus, the 16 failure to acquire the non-tracer ball ammunition was due to the inability to contact 17 the right leaders on their day off in a timely manner. 18 Accordingly, Lt. Col. Mathews and Officer Holman discussed additional 19 mitigation to reduce fire risks if training proceeded. Lt. Col. Mathews testified that 20 if training was further delayed for the Army training unit on July 30th, it could 21 have impacted the unit’s deployment date downrange. As a result, Lt. Col. 22 Mathews testified that reassessment in the morning of July 30th required 23 considerations of risk mitigation to minimize impacts to the Army training unit’s 24 deployability. They agreed to place two extra fire resources on Range 12. While 25 moving the additional resources to Range 12 was not required by standard 26 operating procedures, Lt. Col. Mathews believed their presence on Range 12 27 would reduce travel time in case of a fire, improve assessment by having trained 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *7 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7870 Page 8 of 27 1 firefighters on site, and generally mitigate fire risk by having more resources to 2 apply to a fire. 3 Lt. Col. Mathews intended to set two additional restrictions on live fire 4 training to mitigate the fire risk. First, Lt. Col. Mathews and Officer Holman 5 discussed a tactical pause if a number of small fires occurred. Lt. Col. Mathews did 6 not specify a specific number of fires that should trigger ceasefire; he testified that, 7 rather than articulating a specific number, he relayed his general intent to Officer 8 Holman. Lt. Col. Mathews stated that his intent was that a number of smaller fires 9 would not turn into a larger fire, like the events of July 29th. He testified that he 10 left some discretion to Officer Holman to determine what small number of fires 11 warranted a tactical pause and reassessment, but Lt. Col. Mathews did not intend 12 for a single fire to warrant a pause of training. 13 Second, they discussed a tactical pause if wind speeds at Range 12 reached 14 red flag conditions. On July 30th, a red flag warning existed for the entire region of 15 eastern Washington and eastern Oregon, beginning at 1300 hours. However, it was 16 not a guarantee that red flags conditions would land on Range 12 during the 17 training period. For this reason, Lt. Col. Mathews stated that his intent was that 18 training would continue so long as red flags conditions did not materialize locally 19 on Range 12. In their discussion, Lt. Col. Mathews and Officer Holman used red 20 flag terminology and Lt. Col. Mathews did not articulate a specific wind speed. 21 While Lt. Col. Mathews believed at the time that Range 12 had a capability of 22 monitoring the winds locally with accuracy to make real-time decisions, he later 23 learned that there were just a few places on the installation that could measure such 24 data—and Range 12 was not one of them. Wind speed could be measured at Range 25 Control, which was eight to ten miles away from Range 12. In July 2016, there was 26 no requirement for units to employ ground-based wind detection in order to 27 provide real time wind speed-readings while training. 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *8 Case 1:18-cv-03011-SAB 1 ECF No. 156 filed 06/10/22 PageID.7871 Page 9 of 27 In establishing the additional restrictions, Lt. Col. Mathews considered that 2 there was a significant reduction of fuel available. In this context, fuel refers to 3 grass or safe fuels for fire. Since there were many fires earlier in the year, Lt. Col. 4 Mathews understood that there was a significant reduction in fuels on Range 12 to 5 start fires. 6 At the conclusion of his conversation with Officer Holman, Lt. Col. 7 Mathews did not formally request a brief-back from Officer Holman. Lt. Col. 8 Mathews’ understanding of the limitations he dictated to Officer Holman on the 9 day of the fire changed when he realized that Officer Holman did not have the 10 same understanding of the restrictions. Lt. Col. Mathews chalked up the 11 discrepancies to his failure to effectively communicate his desires to Officer 12 Holman. 13 Officer Holman remembers his interactions with Lt. Col. Mathews slightly 14 different, and specifically, he only recalls one restriction. First, Officer Holman 15 testified that he did not remember Lt. Col. Mathews instructing that a small 16 number of fires on the range was a trigger for a tactical pause. Officer Holman was 17 aware of each fire that occurred due to hourly, or even more frequent, reporting by 18 Range Control. He clarified that if Lt. Col. Mathews had told him to stop unit 19 training if any fire occurred on July 30th, he would have done so after the first fire. 20 Second, Officer Holman fully understood Lt. Col. Mathews’ restriction that 21 training should cease if red flag conditions materialized on Range 12. He testified 22 that it was already standard operating procedure to ceasefire if red flag conditions 23 are recorded. On July 30th, Officer Holman informed Range Control that, if the 24 winds reached red flag conditions, they were to immediately notify him. Officer 25 Holman never received any report on July 30th indicating that winds on Range 12 26 reached red flag conditions. 27 At 12:24 p.m. on July 30th, Officer Holman called Lt. Col. Mathews and 28 provided an update about the training conditions. As the standard operating ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *9 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7872 Page 10 of 27 1 procedures did not require reporting for every fire, Officer Holman did not report 2 each fire to Lt. Col. Mathews, although several had occurred that morning. At the 3 time of the phone call, Lt. Col. Mathews was driving to YTC from JBLM. Officer 4 Holman reported that training was going well, and wind speeds had not reached 5 red flag conditions. They agreed that training could continue. Officer Holman did 6 not provide Lt. Col. Mathews updates on any fires that morning, and Lt. Col. 7 Mathews did not specifically ask about fires. At the time, Lt. Col. Mathews 8 believed no fires had occurred in the morning. 9 The next time Officer Holman contacted Lt. Col. Mathews was at 4:45 p.m., 10 after the Range 12 Fire began. Personnel and firefighting assets were unable to get 11 the fire under control before it crested the hill, went over the top and down the 12 southeast side, and left the post’s southern boundary. While the fire on the 13 installation was extinguished on August 1, 2016, the Range 12 Fire continued to 14 rage south of the installation in the Yakima Valley for several days. Plaintiffs use a 15 portion of acreage southeast of the post for their cattle business operations. 16 Approximately 153,000 acres burned, which included federal, state, and private 17 property, including Plaintiffs’. 18 19 C. Army Regulation 15-6 Investigation Colonel Robert Kuth undertook an Army Regulation 15-6 investigation 20 (“AR 15-6 Investigation”) of the Range 12 Fire on September 8, 2016. ECF No. 21 33-1 at 4–18. Lt. Col. Mathews provided a written statement in which he discussed 22 the two restrictions he established for training on July 30th. Lt. Col. Mathews 23 indicated in his written statement, and during his testimony, that he believed the 24 Army training unit did not violate any established range procedures and were 25 following their training plan. However, at the time of the report, Lt. Col. Mathews 26 stated that he did not believe the Army training unit adhered to his additional 27 specific restrictions on July 30th to pause training once they encountered a number 28 of small range fires. He testified that this understanding was based in part on his ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *10 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7873 Page 11 of 27 1 belief that his communications made it down to the unit training; however, they did 2 not. III. 3 Legal Standard 4 A. Subject Matter Jurisdiction 5 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian 6 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under Federal Rule of Civil 7 Procedure 12(b)(1) and (h)(3), a district court must dismiss an action where it lacks 8 subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1), (h)(3). “Absent a waiver of 9 sovereign immunity, courts have no subject matter jurisdiction over cases against 10 the [federal] government.” Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015) 11 (citing Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir. 2003)). “[A]ny 12 waiver ‘must be unequivocally expressed in statutory text . . . and will not be 13 implied.’” Ordonez v. United States, 680 F.3d 1135, 1138 (9th Cir. 2012) 14 (omission in original) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). 15 An attack on subject matter jurisdiction may be either facial or factual. 16 Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). “In a facial attack, the 17 challenger asserts that the allegations contained in a complaint are insufficient on 18 their face to invoke federal jurisdiction. By contrast, in a factual attack, the 19 challenger disputes the truth of the allegations that, by themselves, would 20 otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 21 1035, 1039 (9th Cir. 2004). 22 In this case, the Government mounted a factual attack when it filed affidavits 23 and exhibits challenging Plaintiffs’ allegations that would otherwise invoke 24 jurisdiction under the Federal Tort Claims Act. See Wolfe v. Strankman, 392 F.3d 25 358, 362 (9th Cir. 2004). Generally, in response to a factual attack, a plaintiff 26 “must present ‘affidavits or any other evidence necessary to satisfy [their] burden 27 of establishing that the court, in fact, possesses subject matter jurisdiction.” Edison, 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *11 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7874 Page 12 of 27 1 822 F.3d at 517 (quoting Colwell v. Dep’t of Health & Human Servs., 558 F.3d 2 1112, 1121 (9th Cir. 2009) (citation omitted)). 3 “Unless the jurisdictional issue is inextricable from the merits of a case, the 4 court may determine jurisdiction on a motion to dismiss for lack of jurisdiction 5 under Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Kingman Reef Atoll 6 Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008); Robinson v. 7 United States, 586 F.3d 683, 685 (9th Cir. 2009). A district court may “hear 8 evidence regarding jurisdiction” and “resolv[e] factual disputes where necessary.” 9 Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). “[N]o 10 presumptive truthfulness attaches to plaintiff’s allegations.” Id. (internal quotation 11 marks omitted). When examining a factual attack under Rule 12(b)(1), then, “the 12 court can actually weigh evidence to confirm the existence of the factual predicates 13 for subject-matter jurisdiction.” Global Tech., Inc. v. Yubei (XinXiang) Power 14 Steering System Co. Ltd., 807 F.3d 806, 810 (6th Cir. 2015) (quoting Carrier Corp. 15 v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012)).2 The Court does not 16 presume that the plaintiff’s factual allegations are true. Russell v. Lundergan– 17 Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015). 18 However, the Court must treat the motion to dismiss as a motion for 19 summary judgment if “‘the jurisdictional issue and substantive issues are so 20 intertwined that the question of jurisdiction is dependent on the resolution of 21 factual issues going to the merits’ of an action.” Sun Valley Gasoline, Inc. v. Ernst 22 Enters, Inc., 711 F.2d 138, 139 (9th Cir. 1983) (quoting Augustine at 1077). 23 Normally, the issue of jurisdiction and the merits of an action are intertwined 24 25 2 The Ninth Circuit has not further delineated a district court’s role in 26 resolving jurisdictional factual disputes on a Rule 12(b)(1) motion. Absent 27 additional guidance from the Ninth Circuit, the Court finds the Sixth Circuit’s 28 rationale and findings persuasive on this issue. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *12 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7875 Page 13 of 27 1 where “a statute provides the basis for both the subject matter jurisdiction of the 2 federal court and the plaintiff’s substantive claim for relief.” Safe Air, 373 F.3d at 3 1039 (citing Sun Valley, 711 F.2d at 139). In such a case, the district court must 4 treat a Rule 12(b)(1) motion to dismiss for lack of jurisdiction as a summary 5 judgment motion under Rule 56. See id. 6 7 B. Federal Tort Claims Act The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 171 et seq., provides a 8 limited waiver of the sovereign immunity of the United States for torts committed 9 by federal employees acting within the scope of their employment. 28 U.S.C. 10 § 1346(b)(1); Gonzalez v. United States, 814 F.3d 1022, 1026–27 (9th Cir. 2016). 11 FTCA’s waiver of immunity is limited by a number of statutory exceptions. See 28 12 U.S.C. § 2680. This case deals with the discretionary function exception (“DFE”). 13 14 15 16 The DFE provides that the FTCA shall not apply to [a]ny claim . . . 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. 17 18 Id. § 2680(a). The DFE is designed to “prevent judicial ‘second-guessing’ of 19 legislative and administrative decisions grounded in social, economic, and political 20 policy through the medium of an action in tort.” United States v. S.A. Empresa de 21 Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). Where 22 the DFE applies, the United States has not waived its sovereign immunity and the 23 Court lacks subject matter jurisdiction over the plaintiffs’ claims. Gonzalez, 814 24 F.3d at 1027 (citing GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th 25 Cir. 2002)). It is the government’s burden to demonstrate the applicability of the 26 DFE. Gonzalez, 814 F.3d at 1027; Marlys Bear Medicine v. United States ex rel. 27 Sec. of the Dep’t of the Interior, 241 F.3d 1208, 1213 (9th Cir. 2001). 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *13 Case 1:18-cv-03011-SAB 1 ECF No. 156 filed 06/10/22 PageID.7876 Page 14 of 27 In determining whether the DFE bars a claim, district courts apply the two- 2 part test set forth in United States v. Gaubert, 499 U.S. 315 (1991), and Berkovitz 3 v. United States, 486 U.S. 531 (1988). Under that test, the DFE applies if (1) the 4 act or omission on which the claim is based “involves an element of judgment or 5 choice”; and (2) “that judgment is of the kind that the discretionary function 6 exception was designed to shield.” Berkovitz, 486 U.S. at 536; see also Gaubert, 7 499 U.S. at 322–23. Both elements are discussed in detail below. 8 9 IV. Discussion Plaintiffs bring causes of action for common law negligence, trespass, and 10 nuisance, and a violation of Wash. Rev. Code § 76.04.730. See ECF No. 99 at 9– 11 16. The present jurisdictional issue is whether the Government’s challenged 12 conduct involved an element of judgment or choice that implements social, 13 economic, or political policy considerations. Nurse v. United States, 226 F.3d 996, 14 1000–01 (9th Cir. 2000) (citing Berkovitz, 486 U.S. at 536). 15 As a threshold matter, the Court must determine the standard of review. 16 FTCA is not “a statute [that] provides the basis for both the subject matter 17 jurisdiction of the federal court and the plaintiff’s substantive claim for relief,” and 18 therefore, the issue of jurisdiction and the merits of the action are not intertwined. 19 Safe Air, 373 F.3d at 1039 (citing Sun Valley, 711 F.2d at 139). Although the 20 answer to the jurisdictional question is probative of Plaintiffs’ claims, such as the 21 negligence cause of action, the Court finds it is neither dispositive nor inextricable 22 from the merits of the case. Since the jurisdictional issue is distinct from the merits 23 of the action, the Court must consider the Government’s motion under the regular 24 standard for motion to dismiss for lack of jurisdiction, pursuant to Rule 12(b)(1) of 25 the Federal Rules of Civil Procedure. See Kingman Reef, 541 F.3d at 1195; Sun 26 Valley, 711 F.2d at 139. Further, as Plaintiffs bring a factual attack under Rule 27 12(b)(1), the Court must resolve the factual disputes, and Plaintiffs’ factual 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *14 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7877 Page 15 of 27 1 allegations are not presumed to be true. Augustine, 704 F.2d at 1077; Russell, 784 2 F.3d at 1045. 3 The Court next considers the admissibility of certain evidence submitted by 4 the parties. The Ninth Circuit remanded the Court’s previous dismissal due to 5 significant factual disputes. It directed the Court as follows: 6 7 8 9 10 11 12 13 14 We note that Commander Mathews described his order as ‘specific’ in the first statement he gave to Colonel Kuth during the administrative investigation after the fire. Discrepancies in the witness statements also raise questions regarding the weather and conditions updates Commander Mathews received on the day of the fire. Because the record contains significant inconsistencies between the statements given by the most critical witnesses, plaintiffs are entitled to an opportunity to cross-examine Commander Mathews, SRO Holman, and Colonel Kuth. An evidentiary hearing will likely be required to resolve the issues presented by the government’s motion. On remand, we leave it to the district court to determine whether depositions of Commander Mathews, SRO Holman, Colonel Kuth, or a government witness under Fed. R. Civ. P. 30(b)(6) would be helpful to prepare for an evidentiary hearing. 15 ECF No. 121 at 4. In accordance with the Ninth Circuit’s remand order, the Court 16 granted Plaintiffs leave to take depositions as needed. ECF No. 129. The discovery 17 deadline was extended to permit the same. ECF No. 131. Plaintiffs were also given 18 an opportunity to cross examine the aforementioned witnesses at the evidentiary 19 hearing. 20 At the hearing, the parties agreed the testimony of Col. Kuth was not 21 necessary; Plaintiffs waived their right to call him as a witness and suggested 22 submitting post-hearing supplemental briefs instead of further examination. ECF 23 Nos. 152 at 199–202. The Court accepted the recommendation. The Government 24 concurred with the request but moved the Court to admit Col. Kuth’s AR 15-6 25 investigation report as part of the record, arguing it was admissible under Federal 26 Rule of Evidence 803(A)(i) and (iii). Id. at 200; ECF No. 137 at 10. Plaintiffs 27 objected to its admission in full on the basis it was unreliable. ECF No. 135 at 2. 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *15 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7878 Page 16 of 27 The Court determines it does not need to consider the AR 15-6 Investigation 1 2 report to resolve the Government’s motion, as most of the report is not relevant. 3 The Court considers only select portions of the report that were used by Plaintiffs 4 during cross-examination at the hearing. These portions are reliable and admissible 5 under Rule 803. See Fed. R. Evid. 803(A)(i), (iii). Plaintiffs also moved to exclude other broad categories of evidence, such as 6 7 documents produced after witness depositions and any Government witness 8 testimony that a purported act was performed because it was customary. The Court 9 took these matters under advisement pending a determination of whether such 10 evidence would be presented. ECF No. 152 at 17–20. None of the issues were 11 raised during the hearing, and therefore, the motion to exclude is now dismissed as 12 moot. 13 There is a final issue of the factual scope of Plaintiff’s allegations and the 14 Government’s Motion to Dismiss. Although many of Plaintiffs’ arguments at the 15 hearing exceeded the factual allegations in Plaintiffs’ SAC, the Court nonetheless 16 considers the merits of these arguments. 17 18 19 A. Whether the Challenged Conduct Involved an Element of Judgment or Choice. As the “discretionary function” name reflects, the first element of the DFE is 20 whether the challenged conduct involves an element of discretion, judgment, or 21 choice. Gaubert, 499 U.S. at 322. The act is not discretionary when a “‘federal 22 statute, regulation, or policy specifically prescribes a course of action for an 23 employee to follow,’ because ‘the employee has no rightful option but to adhere to 24 the directive.’” Id. (quoting Bekovitz, 486 U.S. at 536)). Similarly, if the particular 25 option chosen by the employee is “specifically proscribed by applicable law,” then 26 the “discretionary function exception does not apply.” Broidy Cap. Mgmt., LLC v. 27 State of Qatar, 982 F.3d 582, 591 (9th Cir. 2020); see also Nurse, 226 F.3d at 1002 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *16 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7879 Page 17 of 27 1 (“In general, governmental conduct cannot be discretionary if it violates a legal 2 mandate.”). 3 Plaintiffs point to three mandatory directives they contend should have 4 prevented the Range 12 Fire. They claim (1) Officer Holman failed to adhere to Lt. 5 Col. Mathews’ oral orders imposing two additional training restrictions on the day 6 of the Range 12 Fire; (2) Lt. Col. Mathews and Officer Holman failed to 7 adequately communicate with and provide adequate information, supervision, 8 and/or training to its personnel, employees, and/or agents who were carrying out 9 training exercises on the day of the Range 12 Fire; and (3) civilian personnel failed 10 to exchange tracer ammunition with non-tracer ammunition, which increased the 11 fire risk. See, e.g., ECF No. 99 (Second Amended Complaint) at 5–9. 12 The Government argues that Army personnel did not violate a specific and 13 mandatory directive on the day of the Range 12 Fire. Specifically, the Government 14 asserts Lt. Col. Mathews and Officer Holman had discretion regarding the manner 15 and method of fire prevention, and whether to allow the Army training unit to 16 engage in live fire training exercises on July 30th, given the weather conditions 17 and resources available. The Government further asserts that, even if mandatory 18 directives existed, Plaintiffs have not demonstrated they were violated. 19 20 1. Lt. Col. Mathews’ Additional Restrictions Plaintiffs present two arguments regarding Lt. Col. Mathews’ oral 21 restrictions to Officer Holman on July 30th. First, Plaintiffs argue that Officer 22 Holman violated a directive from Lt. Col. Mathews to ceasefire and consult with 23 Lt. Col. Mathews if a small number of fires ignited on Range 12. It is undisputed 24 that the Army training unit encountered more than one fire during training in the 25 morning, and Officer Holman did not report the multiple fires to Lt. Col. Mathews. 26 The record evidence demonstrates Lt. Col. Mathews did not issue a clear and 27 specific directive to Officer Holman that would have removed his discretion to 28 continue live fire training. Lt. Col. Mathews’ order to Officer Holman was neither ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *17 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7880 Page 18 of 27 1 clear nor specific to create a mandatory directive under the DFE. See Gaubert, 499 2 U.S. at 322; Berkovitz, 486 U.S. at 536 (“[T]he discretionary function exception 3 will not apply when a federal statute, regulation, or policy specifically prescribes a 4 course of action for an employee to follow.”) (emphasis added). As opposed to a 5 strict numerical limit of fires, Lt. Col. Mathews testified that he sought to 6 communicate his general intent to Officer Holman. There is no dispute that Lt. Col. 7 Mathews did not request Officer Holman to report each fire to him. Lt. Col. 8 Mathews’ and Officer Holman’s testimony indicated that Lt. Col. Mathews 9 requested Officer Holman to ceasefire and reassess after a “small number” of fires. 10 Lt. Col. Mathews testified that his order left discretion to Officer Holman to 11 determine, in his professional judgment and experience as a Senior Range Officer, 12 what number of fires warranted a tactical pause. His command to Officer Holman 13 was not specific, but rather, required some amount of discretion on the number of 14 fires that warranted a tactical pause, including reporting to and reassessment with 15 Lt. Col. Mathews. As Officer Holman’s compliance with the order required an 16 element of “judgment or choice,” it was a discretionary function on his part. 17 Berkovitz, 486 U.S. at 536. 18 Second, Plaintiffs contend that Officer Holman failed to comply with Lt. 19 Col. Mathews’ directive that required a tactical pause if wind speeds reached red 20 flag levels. It is undisputed that standard operating procedures required ceasefire if 21 winds reached red flag levels, and also, Lt. Col. Mathews expressly dictated a 22 restriction to ceasefire if red flag conditions materialized on Range 12. 23 Relevant to this restriction, Plaintiffs argue they need only articulate a 24 mandatory rule that could be applicable to the situation, not that the mandatory rule 25 was violated on July 30th. The Court disagrees. If Plaintiffs did not have to proffer 26 at least a scintilla of evidence that a pertinent directive was violated in the conduct 27 challenged, Plaintiffs could endlessly prolong litigation by pointing to general 28 military policies to withstand summary judgment on jurisdiction, even where there ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *18 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7881 Page 19 of 27 1 is no dispute of material fact. Federal courts are courts of limited jurisdiction, and 2 they “possess only that power authorized by Constitution and statute, which is not 3 to be expanded by judicial decree.” Kokkonen, 511 U.S. at 377 (internal citations 4 omitted). In this case, Plaintiffs had an opportunity to perform all jurisdictional 5 discovery requested. The Court held an evidentiary hearing to resolve the parties’ 6 purported factual discrepancies regarding the events on July 30th. ECF Nos. 149, 7 151. Plaintiffs have not alleged, much more demonstrated, that additional 8 discovery would alter resolution of the jurisdictional issue. See, e.g., Esquivel v. 9 United States, 21 F.4th 565, 578 (9th Cir. 2021) (affirming a district court’s denial 10 for additional jurisdictional discovery on the basis that the requested discovery 11 would not “make a difference to the jurisdictional analysis”). For those reasons, the 12 Court concludes that at this late stage in the proceedings, Plaintiffs must proffer at 13 least some evidence to indicate the Government violated an alleged directive on 14 July 30th. Accord Elder v. United States, 312 F.3d 1172, 1177 (10th Cir. 2002) 15 (stating that plaintiffs must show that the defendant actually violated a specific and 16 mandatory federal statute, regulation, policy, or other directive). 17 That being the case, the Court turns to the merits of Plaintiffs’ argument. 18 The parties agree that there is no universal definition of red flag conditions. 19 Plaintiffs claim red flag conditions are defined as wind speeds of 10 miles per hour 20 or greater; however, they do not proffer any evidence to support this definition. 21 The record evidence defines red flag conditions as winds sustained for several 22 hours that are greater than 15 miles per hour and at least 20 feet off the ground. 23 Plfs’ Exh. 50; see also ECF No. 33-1 at 197; ECF No. 92-1 at 13. On this point, 24 Plaintiffs cite to both the standard operating procedures and Lt. Col. Mathews’ 25 express delineations on July 30th to argue mandatory directives were violated. 26 In the AR 14-6 Investigation report and in Lt. Col. Mathews’ testimony, Lt. 27 Col. Mathews stated his instructions regarding wind speeds were specific to 28 conditions recorded at Range 12, not Range Control. Officer Holman’s assessment ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *19 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7882 Page 20 of 27 1 of red flag conditions on July 30th involved a matter of judgment when 2 considering the resources available on Range 12. While Lt. Col. Mathews believed 3 at the time that wind speeds could be measured with accuracy on Range 12, the 4 Government lacked an ability to measure wind speeds in real-time at that location. 5 Consequently, it appears that whether wind speeds were sustained for several hours 6 at 15 miles per hour and at least 20 feet off the ground on Range 12 involved some 7 level of judgment from Officer Holman and the Army training unit. 8 More crucially, Plaintiffs have failed to demonstrate Officer Holman or 9 another Government employee actually violated the restriction. Again, Lt. Col. 10 Mathews did not order Officer Holman to ceasefire due to the region-wide red flag 11 warning or red flag conditions at Range Control, where wind speeds could be 12 measured. On July 30th, Range Control did not alert Officer Holman that wind 13 speeds on Range 12 reached red flag levels. Further, the record evidence 14 demonstrates that wind speeds on Range 12 did not reach sustained red flag 15 conditions until after the fire started at 4:49 p.m. and headed to the hilltop above 16 Range 12. ECF No. 153 at 30–32. Assuming for the sake of argument that the 17 standard operating procedure and Lt. Col. Mathews’ order established a specific 18 and mandatory order that removed Officer Holman’s discretion despite the limited 19 conditions on the ground, the Government did not violate that directive. 20 Relatedly, Plaintiffs state that Officer Holman’s failure to inform Lt. Col. 21 Mathews of every fire or increasing wind speeds violated a specific directive from 22 Lt. Col. Mathews. However, they fail to provide any evidence that Lt. Col. 23 Mathews ordered more frequent updates on either the quantity of fires or the wind 24 speeds on Range 12. 25 Given this, the Court finds that Lt. Col. Mathews’ additional training 26 restrictions on July 30th involved an element of judgment or choice. The evidence 27 presented also indicates that the additional restrictions, as characterized by 28 Plaintiffs, were not violated on July 30th. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *20 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7883 Page 21 of 27 2. Failure to Communicate 1 Next, Plaintiffs argue that Lt. Col. Mathews and Officer Holman’s failure to 2 3 effectively communicate the additional restrictions violated a mandatory Army 4 policy. Lt. Col. Mathews admitted that there appeared to have been a “breakdown” 5 in communication between him and Officer Holman on July 30th, and his intended 6 restrictions were not precisely understood; Lt. Col. Mathews “chalked it up to [his] 7 failure to effectively communicate” his desires for training. ECF No. 152 at 54, 8 61–62. Further, Officer Holman testified that if Lt. Col. Mathews had given him 9 instructions for additional restrictions on unit training, it would have been his duty 10 to clearly communicate those controls to Range Control. Id. at 190. Plaintiffs cite to a Risk Management pamphlet produced by the U.S. 11 12 Department of the Army. See Plfs’ Exh. 35 (Army Pamphlet 385-30). The 13 pamphlet states as follows: “Once the commander or supervisor has identified the 14 hazards and selected controls, the controls must be effectively implemented and 15 documented. . . . Army commanders and staff must ensure controls are integrated, 16 communicated, and understood at all levels.” Id. at 20. It further provides that 17 “[t]he most important aspect of implementing controls is clearly communicating 18 how the controls will be put into effect, who will implement them, how they fit 19 into the overall operation, and how the commander expects them to be enforced.” 20 Id. 21 Plaintiffs’ argument that the pamphlet creates a specific and mandatory 22 policy to communicate effectively fails for two reasons. First, it is not clear that Lt. 23 Col. Mathews failed to communicate effectively with Officer Holman, despite Lt. 24 Col. Mathews believing he did not adequately relay his intentions after the fact. As 25 Lt. Col. Mathews testified to, the intended restrictions were not specific controls 26 that wholly eliminated Officer Holman’s discretion to continue live fire training on 27 July 30th. The pamphlet states controls must be clearly communicated in a way 28 that “the commander expects them to be enforced.” Id. It is not evident the ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *21 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7884 Page 22 of 27 1 pamphlet applies to Lt. Col. Mathews’ communications with Officer Holman on 2 July 30th, given that his stated intentions were not to set a specific control for the 3 number of fires that would have eliminated Officer Holman’s discretion; and 4 similarly, as noted above, the practical limitations at Range 12 regarding wind 5 speeds and weather conditions necessitated Officer Holman’s judgment on whether 6 to continue live fire training. The record does not indicate the guideline itself, 7 whether mandatory or not, was violated. 8 Second, the pamphlet is not a binding policy or regulation and would not 9 have materially influenced the Government’s decisions in terms of the training, fire 10 risks, and live fire at YTC on July 30th. On this point, Plaintiffs emphasize the 11 apparent mandatory language in the pamphlet: “Army commanders and staff must 12 ensure controls are integrated, communicated, and understood at all levels.” Id. at 13 20 (emphasis added). However, the language must be analyzed in its overall 14 context, and in this case, the “mandatory-sounding language such as ‘shall’ does 15 not overcome the discretionary character” of the pamphlet broadly, much more the 16 Government’s ultimate decision to continue live fire training on July 30th. See Lam 17 v. United States, 979 F.3d 665, 677 (9th Cir. 2020). The express purpose of the 18 pamphlet’s framework is to “allow[] Army leaders to operate with maximum 19 initiative, flexibility, and adaptability.” Plfs’ Exh. 35 at 8. The pamphlet states that 20 “Army operations . . . are demanding and complex,” and “[m]anaging risks related 21 to such operations requires educated judgment, situational knowledge, 22 demonstrated experience, and professional competence.” Id. 23 In this case, “the presence of a few, isolated provisions cast in mandatory 24 language does not transform an otherwise suggestive set of guidelines into binding 25 agency regulations.” See Sabow v. United States, 93 F.3d 1445, 1453 (9th Cir. 26 1996). To interpret the pamphlet as establishing an enforceable mandate on the 27 clarity of communications would frustrate the purpose of the pamphlet and the 28 Army leaders’ ability to “operate with maximum initiative, flexibility, and ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *22 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7885 Page 23 of 27 1 adaptability.” Id. Rather, the pamphlet’s flexible framework reaffirms the 2 discretionary nature of the Government’s decisions on July 30th, given the totality 3 of the circumstances. 3. Tracer Ammunition 4 As a last-ditch argument, Plaintiffs contend that the on-call status of the 5 6 civilian employees at the LRC should have prevented the Army training unit’s use 7 of tracer ball ammunition before the fire, as Army personnel “are obligated to 8 respond to calls and to come into work.” ECF No. 154 at 8:11–12. Plaintiffs do not cite to any rule or policy that suggests the civilian Army 9 10 personnel at the LRC were obligated to respond to calls and draw ammunition on 11 July 30th. In their post-hearing brief, Plaintiffs cite to a portion of the transcript 12 that concerns Officer Holman’s personal work requirements as a Senior Range 13 Officer. Officer Holman testified he was “on-call” when units were firing and was 14 required to come into work “if [he was] able to,” or otherwise designate another 15 employee to go in his stead. ECF No. 152 at 156–157 (emphasis added). In this 16 case, Officer Holman’s obligations as the Senior Range Officer at YTC are 17 inapposite to the requirements of the LRC Armory employees. Plaintiffs’ failure to 18 cite to any Army or ammunition supply policy on this issue is fatal to their claim. Nonetheless, the Court finds the merits of Plaintiffs’ argument unavailing. 19 20 Whether LRC employees should have been on-call is irrelevant to the conduct 21 challenged in this action. It is undisputed that use of tracer ammunition at YTC 22 was permitted, and the ultimate decision to use tracer ammunition on July 30th 23 required judgment from Lt. Col. Mathews and Officer Holman. Even if LRC 24 Armory employees should have been available on July 30th, the use of tracer 25 ammunition was the kind of discretionary decision contemplated by the Army fire 26 safety guidelines. 27 // 28 // ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *23 Case 1:18-cv-03011-SAB 1 filed 06/10/22 PageID.7886 Page 24 of 27 B. Whether the Challenged Conduct Involved Social, Economic, or Political Policy Considerations. 2 3 ECF No. 156 If a specific course of action is not specified, the court must “determine 4 ‘whether that judgment is of the kind that the discretionary function exception was 5 designed to shield.’” Sabow 93 F.3d at 1451 (quoting Gaubert, 499 U.S. at 322– 6 23); Myers v. United States, 652 F.3d 1021, 1028 (9th Cir. 2011). “[I]f the 7 judgment involves considerations of social, economic, or political policy, the 8 exception applies.” Id. (cleaned up). “When a statute or regulation allows a federal 9 agent to act with discretion, there is a ‘strong presumption’ that the authorized act 10 is based on an underlying policy decision.” Nurse 226 F.3d at 1001 (quoting 11 Gaubert, 499 U.S. at 324). 12 Government actions can be classified along a spectrum, ranging from those 13 “totally divorced from the sphere of policy analysis,” such as driving a car, to those 14 “fully grounded in regulatory policy,” such as the regulation and oversight of a 15 bank. O’Toole v. United States, 295 F.3d 1029, 1035 (9th Cir. 2002) (citing 16 Gaubert, 499 U.S. at 325 n.7, 332–34, for these examples); Whisnant v. United 17 States, 400 F.3d 1177, 1181 (9th Cir. 2005). The relevant inquiry is not whether 18 the explicit balancing is proved, but whether the decision is susceptible to policy 19 analysis. Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1028 (9th Cir. 20 1989). 21 It is evident that the challenged conduct in this action was based on policy 22 considerations that the DFE was intended to shield. Notably, Plaintiffs do not 23 argue in their latest briefing that the second prong of the DFE analysis is not 24 satisfied. Nor can they. 25 The Government’s decision to continue live fire training on July 30th did not 26 involve failure to implement safety precautions that existed under a specific and 27 mandatory established policy. In contrast, the decision necessitated the balancing 28 of competing policy considerations that were envisioned by the fire safety ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *24 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7887 Page 25 of 27 1 guidelines. Whisnant, 400 F.3d at 1182 (distinguishing adoption of safety 2 precautions based on policy considerations and implementation of the same); 3 Marlys Bear Medicine, 241 F.3d at 1215–16 (“The decision to adopt safety 4 precautions may be based on policy considerations, but the implementation of 5 those precautions is not.”); see also ARA Leisure Servs. v. United States, 831 F.2d 6 193, 195 (9th Cir. 1987). As the Court already established above, Plaintiffs have 7 not cited a mandatory directive or order regarding fire safety the Government 8 failed to adhere to on July 30th. 9 Lt. Col. Mathews testified that training elements, such as the frequency of 10 training and type of ammunition used, required balancing of numerous factors. He 11 testified that the need to train troops, and ensure Army readiness and national 12 defense, were some of the elements that weighed into his decision to continue 13 training on July 30th with the fire mitigations implemented. For example, Lt. Col. 14 Mathews explained that further delay of the Army training unit’s training could 15 have impacted their deployability down the line, which also could have affected 16 Army readiness. The factors weighed by Lt. Col. Mathews parallel those required 17 of Officer Holman when he considered what conditions on the ground warranted a 18 tactical pause and reevaluation on July 30th. Absent a more specific directive, 19 Officer Holman was forced to weigh fire risks on one hand with the unit’s 20 immediate need for training on the other. 21 Having to weigh the need to train the unit on one hand, with risk of fire 22 during the summer months on the other, is the precise kind of decision that is 23 grounded in professional military discretion and is due a district court’s highest 24 deference. Here, Lt. Col. Mathews and Officer Holman believed that fire risks 25 were adequately mitigated due to the additional fire resources on Range 12 and the 26 amount of fuel available. Absent breach of a mandatory and specific directive, 27 such professional decisions regarding military training are clearly subject to policy 28 analysis and are shielded from tort liability. See, e.g., Wood v. United States, 845 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *25 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7888 Page 26 of 27 1 F.3d 123, 131 (4th Cir. 2017) (“Military operation decisions are the kind of 2 government policy choices the discretionary function was designed to shield.”). 3 The rationale for the DFE is plainly applicable to this case, as imposing tort 4 liability would lead to judicial second-guessing of Army policy decisions, and the 5 threat of tort liability could become a tool to shape Army operations or policy. See 6 id. The Government has demonstrated that the conduct challenged in this action 7 8 is at least “susceptible to policy analysis,” Kennewick, 880 F.2d at 1028, given the 9 “strong presumption” that a discretionary act is based on a policy decision, Nurse, 10 226 F.3d at 1001. And given the particular facts of this case, the Government has 11 demonstrated Lt. Col. Mathews and Officer Holman explicitly balanced these 12 policy considerations to continue training on July 30th. V. 13 Conclusion Due to the foregoing, the Court finds the Government has satisfied its 14 15 burden of proving Plaintiffs’ claims fall outside of the jurisdictional scope of the 16 Federal Tort Claims Act. The conduct Plaintiffs challenge involved military 17 judgment that was grounded in public policy, which is shielded by the 18 discretionary function exception. 28 U.S.C. § 2680(a). As such, Plaintiffs’ action is 19 barred by federal sovereign immunity, and the action is dismissed for lack of 20 subject matter jurisdiction. Munns, 782 F.3d at 412; Gonzalez, 814 F.3d at 1027. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *26 Case 1:18-cv-03011-SAB ECF No. 156 filed 06/10/22 PageID.7889 Page 27 of 27 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiffs’ Motion in Limine, ECF No. 135, is DENIED. 3 2. Defendant’s Motion to Dismiss Under FTCA’s Discretionary 4 Function Exception, ECF No. 39, is GRANTED. 5 3. Plaintiffs’ Second Amended Complaint is DISMISSED with 6 prejudice. 7 4. Judgment shall be entered in favor of Defendant and against Plaintiffs. 8 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 9 this Order, provide copies to counsel, and close the file. 10 DATED this 10th day of June 2022. 11 12 13 14 15 16 Stanley A. Bastian Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *27

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