Ruffino v. United States, 2:16-cv-02719-KJM-CKD

• Decision Date: 08 March 2019
• Docket Number: No. 2:16-cv-02719-KJM-CKD,2:16-cv-02719-KJM-CKD
• Citation: 374 F.Supp.3d 961
• Court: U.S. District Court — Eastern District of California
• Parties: Gianfranco RUFFINO, Plaintiff, v. UNITED STATES of America; and Does 1 through 100, inclusive, Defendants.

374 F.Supp.3d 961

Gianfranco RUFFINO, Plaintiff,

v.UNITED STATES of America; and Does 1 through 100, inclusive,¹ Defendants.

No. 2:16-cv-02719-KJM-CKD

United States District Court, E.D. California.

Signed March 8, 2019

Angela Jae Chun, Casey Gerry Schenk Francavilla Blatt & Penfield LLP, San Diego, CA, for Plaintiff.

Philip A. Scarborough, Office of the United States Attorney Eastern District of California, Sacramento, CA, for Defendants.

ORDER

Kimberly J. Mueller, UNITED STATES DISTRICT JUDGE Defendant, the United States, moves to dismiss plaintiff Gianfranco Ruffino's negligence claim. ECF No. 27. Defendant contends this court lacks subject matter jurisdiction based on the discretionary function exception of the Federal Tort Claims Act (FTCA). For the reasons set forth below, the court DENIES defendant's motion to dismiss in part and GRANTS it in part.

I. BACKGROUND

In November 2015, the United States Forest Service (USFS) was overseeing the execution of the 2015 El Dorado County Pile Burn Prescribed Fire Plan (the "Burn Plan"), which called for prescribed burns in portions of forest lands in and around South Lake Tahoe. Mot., ECF No. 27-1, at 11² . The Lake Tahoe Basin Management Unit (the "Basin") is one of the forests included in the Burn Plan. Id. One of the prescribed burns in the Basin took place in what USFS called "Meow 175," an area spanning roughly nine acres in South Lake Tahoe. Id. at 13. Meow 175 was ignited on November 12, 2015 and remained in "patrol status" until November 17, 2015. Mot. at 13.

To notify the public of the burn, USFS issued several notifications, including a press release and posts on various social media sites. Mot. at 13; Opp'n, ECF No. 28, at 6. Employees also placed three signs at the intersections of the entrances to the neighborhood nearest the location of the Meow 175 fire. Mot. at 14 (citing Washington Decl. ¶ 40; Scarborough Decl., Ex. 2 at 95:14–96:6; id. , Ex. 3 at 40:15–42:3); Opp'n at 6.

While on a retreat in South Lake Tahoe on November 14, 2015, plaintiff Gianfranco Ruffino went sledding in a recreation area across the street from his rental home. Mot. at 15. He suffered second- and third-degree burns when his sled stopped over the remains of Meow 175, which had been covered by a recent snowfall. Opp'n at 14. Plaintiff contends he never saw any of USFS's notifications warning of the burn. Opp'n at 13 (citing Ruffino Dep., ECF No. 28-18, at 45 :22–24).

Plaintiff brought the instant suit against the United States on November 11, 2016, bringing a single claim and alleging USFS negligently managed the prescribed burn at Meow 175. Compl., ECF No.1, ¶¶ 6–31. On May 18, 2018, the United States brought the pending motion to dismiss plaintiff's claim for lack of subject matter jurisdiction, alleging that USFS is protected by sovereign immunity under the discretionary function exception to the FTCA. Mot. at 5. Plaintiff opposes, arguing that USFS violated mandatory and specific policies in the Interagency Prescribed Fire Planning and Implementation Guide ("PMS 484") by failing to have a qualified employee oversee the Meow 175 burn and failing to perform a public safety risk assessment, and that USFS's failure to warn the public of a concealed hazard is not protected by the discretionary function exception to the FTCA. See generally Opp'n. Defendant filed a reply, ECF No. 29. Defendant also filed a Notice of Supplemental Authority on July 16, 2018, ECF No. 34 (citing Morales v. United States , 895 F.3d 708, 716 (9th Cir. 2018) ), and plaintiff responded, ECF No. 35. The court submitted the motion on the briefing, and resolves it here.

II. LEGAL STANDARD

A. Dismissal for Lack of Subject Matter Jurisdiction

A Federal Rule of Civil Procedure 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). Here, the United States launches a factual attack because it relies on extrinsic evidence to challenge the complaint's allegations. See Edison v. United States , 822 F.3d 510, 517 (9th Cir. 2016) (challenge was factual where United States filed declarations and affidavits challenging plaintiffs' allegations that government owed them a legal duty); Morrison v. Amway Corp. , 323 F.3d 920, 924 n.5 (11th Cir. 2003) (jurisdictional challenge was factual attack where it "relied on extrinsic evidence and did not assert lack of subject matter jurisdiction solely on the basis of the pleadings").

The nature of a court's review of a factual attack depends on whether the jurisdictional and merits issues intertwine. "Ordinarily, where a jurisdictional issue is separable from the merits of a case, the court may determine jurisdiction by the standards of a Rule 12(b)(1) motion to dismiss for lack of jurisdiction." Roberts v. Corrothers , 812 F.2d 1173, 1177 (9th Cir. 1987). In those circumstances, a court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, and make findings of fact as to jurisdiction. McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988) ; Rosales v. United States , 824 F.2d 799, 803 (9th Cir. 1987). No presumption of truthfulness attaches to the plaintiff's allegations, Rosales , 824 F.2d at 803, but the court resolves any factual disputes in the plaintiff's favor, Edison , 822 F.3d at 517 (citing Dreier v. United States , 106 F.3d 844, 847 (9th Cir. 1996) ). The plaintiff retains the burden to establish the court's subject matter jurisdiction. Id. (citing Colwell v. Dep't of Health & Human Servs. , 558 F.3d 1112, 1121 (9th Cir. 2009) ).

Rule 12(b)(1)'s relatively expansive standards, however, are inappropriate where issues of jurisdiction and substance "intertwine." Roberts , 812 F.2d at 1177. Instead, where these issues are "so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits," the district court applies a summary judgment standard. Autery v. United States , 424 F.3d 944, 956 (9th Cir. 2005) (quoting Rosales , 824 F.2d at 803 ). The court should grant the motion to dismiss only if, while viewing the evidence in the light most favorable to the non-movant, the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Suzuki Motor Corp. v. Consumers Union of United States, Inc. , 330 F.3d 1110, 1131–32 (9th Cir. 2003) (en banc); Rosales , 824 F.2d at 803. Where the intertwined factual issues are disputed, discovery should be allowed, America West Airlines v. GPA Group, Ltd. , 877 F.2d 793, 801 (9th Cir. 1989), and the court should leave the resolution of the jurisdictional issues to the trier of fact, Ventura Packers, Inc. v. F/V Jeanine Kathleen , 305 F.3d 913, 920, 924 (9th Cir. 2002) ; Thornhill Pub. Co. v. Gen. Tel. & Elec. Corp. , 594 F.2d 730, 735 (9th Cir. 1979) ("[W]here the jurisdictional issue and the substantive issues are so intermeshed that the question of jurisdiction is dependent on decision of the merits, a party is entitled to have the jurisdictional issue submitted to the jury, rather than having the court resolve factual issues.").

In large part, the dispositive issues here involve jurisdictional facts that are not intertwined with the substance of plaintiff's case. Because the United States moves to dismiss based on the FTCA's "discretionary function" exception, the court looks to applicable statutes, regulations or policies to decide whether the United States retained discretion to act. Because determining whether the defendant had discretion to act is separate from determining how it in fact acted, the jurisdictional and substantive issues in this respect are not intertwined.

Accordingly, the court reviews all relevant evidence to resolve any factual disputes concerning the existence of jurisdiction, primarily related to proper construction of the text of official manuals. However, to the extent jurisdiction turns on whether a violation of a policy actually occurred, the jurisdictional and substantive facts are intertwined, and the court applies a summary judgment standard.

B. Sovereign Immunity and the FTCA

The United States may not be sued without its consent; if it does consent, the terms of its consent define the scope of the court's jurisdiction. United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citation omitted). The consent must be unequivocally express, not implied. Id. (citing United States v. King , 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) ).

The FTCA provides a limited waiver of sovereign immunity. United States v. Orleans , 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The FTCA makes the federal government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment. Id. Specifically, the United States may be liable "in the same manner and to the same extent as a private individual under like circumstances." United States v. Olson , 546 U.S. 43, 46, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) (quoting 28 U.S.C. § 2674 ); see also 28 U.S.C. § 1346(b)(1).³

The FTCA contains several exceptions to the waiver of sovereign immunity. See 28 U.S.C. § 2680(a) – (n). Under the "discretionary function" exception, the government may not be liable for acts grounded in public policy considerations that involve an element of judgment. 28 U.S.C. § 2680(a) (excluding from liability "an act or omission of an employee of the Government ... based upon the exercise or performance or the failure to exercise or perform a discretionary...