James Dovenberg v. United States

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 22 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
JAMES DOVENBERG, No. 10-35007
Plaintiff - Appellant, D.C. No. 3:08-cv-00889-MO
v.
MEMORANDUM *
UNITED STATES OF AMERICA, by and
through the United States Forest Service;
UNITED STATES FOREST SERVICE;
STATE OF OREGON, by and through the
Oregon Department of Forestry; OREGON
DEPARTMENT OF FORESTRY,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 7, 2010
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and EZRA, District
Judge.**
James Dovenberg appeals from the district court’s dismissal of his suit
against the United States and the United States Forest Service (“Forest Service”)
for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). As the facts are known to the parties, we repeat them here only as
necessary to explain our decision.
Dovenberg’s complaint challenges broadly the government’s allegedly
negligent training, supervision, and instruction of Forest Service personnel
working on Dovenberg’s land while fighting and remediating damage from the
14,000-acre Shake Table Complex wildfire in 2006. Decisions regarding the
training and supervision of government employees “fall squarely within the
discretionary function exception” to the Federal Tort Claims Act, Nurse v. United
States, 226 F.3d 996, 1001 (9th Cir. 2000), as does the Forest Service’s choice of
how to fight a wildfire, see Miller v. United States, 163 F.3d 591, 595–96 (9th Cir.
1998). Dovenberg’s claims against the government are therefore barred. See 28
U.S.C. § 2680(a).
The district court’s grant of the government’s motion to dismiss is
AFFIRMED.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.