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United States Court of Appeals for the Ninth Circuit
November 9, 2021, Argued and Submitted, Seattle, Washington; December 17, 2021, Filed
[*569] TALLMAN, Circuit Judge:
"Of all the foes which attack the woodlands of North America no other is so terrible as fire."
- Gifford Pinchot, First Chief of the United States Forest Service
Appellants Alfredo Esquivel and Donald Willard appeal the district court's dismissal for lack of subject matter jurisdiction of their claims for damages brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). Fifteen acres of Appellants' property was intentionally burned by a Type 2 Incident Management Team, convened by the United States Forest Service, during a controlled burnout performed as part of [**5] the fire suppression effort to combat the approximately 217,000-acre 2015 North Star Fire in northeastern Washington. Appellants allege they relied on promises by the fire crew to use certain precautionary measures while performing the burnout, and the negligent failure by the crew to employ such measures caused unnecessary additional acreage to be destroyed by the fire.
The district court held the United States was immune from suit because the claims fell within the discretionary function exception to the FTCA's waiver of sovereign immunity, and to the extent that Appellants' claims were based on allegations that the fire crew lied to Appellants to induce consent to perform the burnout, those claims were also barred by the FTCA's misrepresentation exception. The court subsequently denied Appellants' request for jurisdictional discovery, finding that it was unlikely that any facts existed that would make the discretionary function exception inapplicable.
[*570] We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court's dismissal for lack of subject matter jurisdiction and denial of additional jurisdictional discovery.
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21 F.4th 565 *; 2021 U.S. App. LEXIS 37314 **; 2021 WL 5984331
ALFREDO CRUZ ESQUIVEL, Plaintiff-Appellant, and DONALD DAVID WILLARD, Plaintiff, v. UNITED STATES OF AMERICA, acting through its agent Bureau of Land Management; ARMANDO FORSECA, an individual, in both his personal and representative capacities; TOM DOE, a Bureau of Land Management Employee or Contractor, in both his personal and representative capacities, Defendants-Appellees.
Prior History: [**1] Appeal from the United States District Court for the Eastern District of Washington. D.C. No. 2:18-cv-00148-SAB. Stanley A. Bastian, Chief District Judge, Presiding.
Esquivel v. United States, 2020 U.S. Dist. LEXIS 168916 (E.D. Wash., Sept. 15, 2020)
discretionary function, burnout, misrepresentation, crew, district court, burned, fire suppression, discovery, foam, team, sovereign immunity, allegations, decisions, communications, discretionary, conversation, firefighters, backfire, grounded, lack of subject matter jurisdiction, precautionary measure, tort claim, landowners, measures, fight
Criminal Law & Procedure, Standards of Review, Abuse of Discretion, Discovery, Governments, Federal Government, Claims By & Against, Administrative Law, Sovereign Immunity, Torts, Liability, Federal Tort Claims Act, Elements, International Law, Foreign & International Immunity, Sovereign Immunity, Waivers, Public Entity Liability, Immunities, Exclusions From Liability, Discretionary Functions, Evidence, Burdens of Proof, Allocation, Preliminary Proceedings, Pretrial Motions & Procedures, Suppression of Evidence, Labor & Employment Law, Scope & Definitions, Exemptions, Emergency Personnel