Alfredo Esquivel v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO CRUZ ESQUIVEL, No. 20-35868
Plaintiff-Appellant,
D.C. No.
and 2:18-cv-00148-
SAB
DONALD DAVID WILLARD,
Plaintiff,
OPINION
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.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding
Argued and Submitted November 9, 2021
Seattle, Washington
Filed December 17, 2021
2 ESQUIVEL V. UNITED STATES
Before: Ronald M. Gould, Richard C. Tallman, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Tallman
SUMMARY *
Federal Tort Claims Act
The panel affirmed the district court's dismissal for lack
of subject matter jurisdiction of a Federal Tort Claims Act
(“FTCA”) action seeking damages when appellants’
property was intentionally burned by a Type 2 Incident
Management Team, convened by the U.S. Forest Service,
during a controlled burnout performed as part of the fire
suppression effort to combat the 2015 North Star Fire in
Washington.
The district court dismissed based on its holding that the
FTCA claims fell within the discretionary function
exception to the FTCA’s waiver of sovereign immunity, and
the FTCA’s misrepresentation exception.
Concerning the discretionary function exception, the
panel first considered whether the communications,
regarding the precautionary measures that the fire crew
would take while conducting the burnout, between Bureau
of Land Management employee Thomas McKibben and
property resident Donald Willard involved an element of
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ESQUIVEL V. UNITED STATES 3
judgment or choice. Appellants did not dispute that
McKibben’s communications with Willard were
discretionary. In addition, the government cited to numerous
provisions of the Forest Service Manual (“FSM”) that
exuded discretion by the Forest Service when determining
how best to fight wildland fires. The panel concluded that
McKibben’s statements to Willard were discretionary.
The panel next considered whether the communications
reflected the exercise of judgment grounded in social,
economic, or political policy. The panel held that
McKibben’s communication with Willard was based upon
the exercise or performance of choosing how to organize and
conduct fire suppression operations, which indisputably
required the exercise of judgment grounded in social,
economic, or political policy. The panel concluded that the
government met its burden of establishing that appellants’
claims fell within the scope of the discretionary function
exception.
The panel next considered whether appellants’ claims
were independently barred by the FTCA’s misrepresentation
exception. Under this exception, claims against the United
States for fraud or misrepresentation by a federal officer are
absolutely barred. Appellants argued that they suffered a
loss (the burning of 15 acres) as a result of Willard’s decision
to leave the property, made in reliance on McKibben’s
intentionally false statement that he would use foam or
control the burnout. The panel held that the alleged
misrepresentation in this case was not collateral to the
gravamen of the complaint. By Willard’s own account, the
alleged misrepresentations were within the chain of
causative events upon which their claim was founded, and
within the misrepresentation exception. The panel
concluded that the claims regarding McKibben’s
4 ESQUIVEL V. UNITED STATES
communications with Willard were independently barred by
the FTCA’s misrepresentation exception.
Finally, the panel considered whether the district court
made improper factual findings in resolving the Fed. R.
Civ. P. 12(b)(1) motion and improperly denied additional
jurisdictional discovery in the case. The panel held that
contrary to appellants’ argument, the district court was not
resolving serious matters of credibility on a summary basis,
but instead the district court was viewing the facts alleged in
the light most favorable to appellants and concluding that,
even were it to take those facts as true, the court lacked
subject matter jurisdiction over the case. This was not error.
The panel held further that the district court did not abuse its
discretion in refusing to allow further jurisdictional
discovery.
COUNSEL
William C. Schroeder (argued), KSB Litigation, P.S.,
Spokane, Washington, for Plaintiff-Appellant.
Joshua Dos Santos (argued) and Mark B. Stern, Appellate
Staff; Joseph H. Harrington, Acting United States Attorney;
Brian M. Boynton, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendant-Appellee.
ESQUIVEL V. UNITED STATES 5
OPINION
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 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
6 ESQUIVEL V. UNITED STATES
facts existed that would make the discretionary function
exception inapplicable.
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.
I
A
On August 12, 2015, the human-caused North Star Fire
began to burn on the Colville Indian Reservation in
northeastern Washington. 1 The fire eventually combined
with several other naturally caused fires—including the
large and complex Tunk Block Fire—to form the Okanogan
Fire Complex. The Okanogan Fire Complex was then the
largest wildfire in Washington State’s history and burned
more than 300,000 acres throughout the Colville Indian
Reservation, the Colville National Forest, and Okanogan and
Ferry counties.
The North Star Fire was assigned to a Type 2 Incident
Management Team (IMT) by the United States Forest
Service, and consisted of federal, state, local, and tribal
firefighters. The firefighting operations conducted by the
IMT were principally governed by Chapter 5100 of the
Forest Service Manual (FSM), which is devoted to wildland
1
We summarize the facts on this Rule 12(b)(1) motion in the light
most favorable to Appellants, who resisted dismissal below. See
Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008).
ESQUIVEL V. UNITED STATES 7
fire management. 2 The IMT included a Structure Group, led
by Division Supervisor and Structure Protection Specialist
Thomas McKibbin, who was then employed by the Bureau
of Land Management (BLM).
On August 22, 2015, the Structure Group was assigned
by the Operations Section Chief to assess potential threats
to, and protect, the ranch property of Alfredo Esquivel and
Donald Willard 3—an 89.7-acre parcel near Nespelem,
Washington. When he reached the scene with his crew,
Division Supervisor McKibbin concluded that the advancing
North Star Fire posed an extreme risk to the buildings and
structures on the land. McKibbin therefore ordered fire
defensive measures. Specifically, McKibbin directed his
firefighters to create a fire break from a two-track dirt road
that ran along the property, and to employ a burnout fire 4
near the road to widen and reinforce the break.
Before McKibbin and his team implemented the
defensive measures, McKibbin spoke with Donald Willard
2
The IMT responsible for fighting the North Star Fire was also
required to follow the Master Cooperative Wildland Fire Management
and Stafford Act Response Agreement, an agreement entered into among
various state and federal agencies in the Pacific Northwest to share
resources when mutual aid is required.
3
Although Willard did not actually own the 89.7-acre parcel—and
his relationship to Esquivel is unclear (there is some indication in the
record that he is Esquivel’s nephew)—he lived on Esquivel’s property at
the time.
4
A burnout fire, as its name suggests, is a controlled, low-intensity
fire that is designed to burn out only the most flammable fuel sources
(i.e., vegetation) near the fire line. Once these fuels are consumed, the
burnout is finished. The end result is a black space that hopefully stops
the encroaching wildfire from further advancing.
8 ESQUIVEL V. UNITED STATES
who was then living in a motor home on the property.
According to McKibbin, Willard expressed distrust of the
federal government and worried that firefighters intended to
excessively burn his land to save adjacent federal lands.
McKibbin responded by assuring Willard that this was not
the case, and that his crew was there to protect Willard’s
property. According to Willard, McKibbin also responded
that Willard “didn’t have to worry about excessive burning
because he and his crew were going to spray foam around
the area so that the fire could not spread very far.”
Willard later swore that McKibbin “convinced” him that
the team “would protect [the] property and make sure that
[the] property would not be excessively burned.” Willard
also declared that when he was told about the foam he
thought “it would be safe for [him] to leave.” McKibbin
swears he does not recall any discussion of foam in his
conversation with Willard. He also states in his declaration
before the district court that it would be highly unusual for
foam to be used during a burnout because foam is typically
used only to contain the advance of a wildfire, while
burnouts are performed under controlled conditions and
normally do not need to be contained. McKibbin also swears
that if “Willard had wanted to forego a burnout, [McKibbin]
would not have done one.” “That would have put the entire
property at extreme risk, but it was [Willard’s] prerogative
to take the risk if [Willard] wanted to.”
After Willard consented to the burnout, McKibbin and
his team began to implement the defensive measures.
McKibbin stated that the fire crew “introduced a low-
intensity fire along [the] fire line, which was in a remote
corner of the property, and then allowed it to burn out under
close observation.” The crew then “secured the fire line,
ceased operations, and monitored the area until [they] were
ESQUIVEL V. UNITED STATES 9
confident the line would keep the wildfire from advancing
through the night.” The team remained on the property until
“well after dark,” by which point the “vegetation along the
fire line had been fully consumed.” After the crew ensured
that any residual fire was not a threat, they left to eat, debrief
with their commanders, and sleep.
Willard left the property at 7:30 p.m., when, according
to him, “the only fire in sight was about a quarter mile away
and was small enough that [he] could have kept it at bay
alone.” Willard returned to the property the next day around
7:15 a.m. He smelled propane coming from his motorhome
and found the pilot light had gone out. After he attended to
this threat, Willard “noticed the snapping noise of fire
coming from up the hill where [McKibbin] had set up the
BLM burn camp the night before.” Willard rushed to the top
of the hill, where he saw “an active fire consuming [his]
backyard without any restriction or inhibition” and noticed
“that there was no fire watch, no foam had been sprayed
anywhere, and that there were no precautions taken to
prevent [the] property from being completely consumed by
fire.” Willard asserts that he fought the fire singlehandedly
from about 8:00 a.m. to 1:00 p.m., when McKibbin and his
crew returned to the property.
Shortly after the fire crew returned, according to
McKibbin, Willard approached him. The nature of the
ensuing conversation is disputed. McKibbin alleges that
Willard confronted him, claiming that the federal
government was intentionally burning his private property to
protect federal lands, and became aggressive to the point that
McKibbin began to fear for his safety and the safety of his
crew. Willard, on the other hand, maintains that he asked
McKibbin why the fire was left unattended and precautions
such as foam had not been used, and that he was respectful,
10 ESQUIVEL V. UNITED STATES
though frustrated and concerned. After the incident was
relayed by McKibbin to IMT Operations Chief Paul
Delmerico, McKibbin and his crew were instructed to leave
Appellants’ property in order to protect firefighter safety.
Willard asserts that McKibbin left without answering his
questions about why foam was not sprayed or why the
burnout had been left unsupervised overnight.
According to Willard, the fire set by McKibbin and his
team burned 15 acres of the property, and if McKibbin had
told Willard “that he was planning to abandon a burning fire
on [the] property, then [Willard] would have come back to
save [his] land.”
B
On May 15, 2017, Appellants filed an administrative
claim with the BLM, seeking $5 million in damages
stemming from the fire damage to the property. Appellants
alleged that their damages resulted from BLM’s negligent
fighting of the North Star Fire, including the negligent
performance of the burnout. On November 13, 2017, BLM
denied the claims on the basis that Appellants failed to
provide evidence of negligence by a BLM employee and
failed to provide evidence supporting their damages claim.
After exhausting administrative remedies, Appellants
filed suit in the United States District Court for the Eastern
District of Washington in May 2018, bringing claims under
the Federal Tort Claims Act. 5 The government subsequently
In addition to FTCA claims, the complaint included claims under
5
42 U.S.C. § 1983 and Bivens. The civil rights claims were voluntarily
dismissed and are not relevant to this appeal.
ESQUIVEL V. UNITED STATES 11
filed a motion to dismiss Appellants’ FTCA claims for lack
of subject matter jurisdiction.
The district court granted the government’s motion on
February 6, 2020. The court first concluded that it “lack[ed]
jurisdiction over Plaintiffs’ FTCA claims because the claims
fall within the discretionary function exception to the
FTCA’s waiver of sovereign immunity,” and to the extent
that Appellants’ arguments were based on allegations that
McKibbin lied to Willard about the precautionary measures
his team would take, such statements would fall within the
FTCA’s misrepresentation exception. The court further
denied Appellants’ request for jurisdictional discovery,
finding that Esquivel and Willard were given “the same
opportunity to engage in jurisdictional discovery as were
Defendants” and that it was unlikely that any facts existed
that would make the discretionary function exception
inapplicable.
Final judgment was entered on September 15, 2020, and
Appellants timely appealed.
II
We review de novo the district court’s determination that
it lacks subject matter jurisdiction under the FTCA. Green
v. United States, 630 F.3d 1245, 1248 (9th Cir. 2011). In
reviewing the district court’s dismissal for lack of subject
matter jurisdiction, we must accept as true the factual
allegations in the complaint. See Terbush v. United States,
516 F.3d 1125, 1128 (9th Cir. 2008).
The district court’s decision to deny jurisdictional
discovery is reviewed for abuse of discretion. See Gonzalez
v. United States, 814 F.3d 1022, 1031–32 (9th Cir. 2016).
12 ESQUIVEL V. UNITED STATES
III
We first address whether Appellants’ claims about the
burnout are viable under the FTCA. “An action can be
brought by a party against the United States only to the
extent that the Federal Government waives its sovereign
immunity.” Blackburn v. United States, 100 F.3d 1426,
1429 (9th Cir. 1996). If sovereign immunity has not been
waived, the court must dismiss the case for lack of subject
matter jurisdiction. See FDIC v. Meyer, 510 U.S. 471, 475
(1994). Under the FTCA, the United States has waived its
sovereign immunity for certain tort claims. The Act
specifically provides jurisdiction to district courts over
civil actions on claims against the United
States, for money damages . . . for injury or
loss of property, or personal injury or death
caused by the negligent or wrongful act or
omission of any employee of the Government
while acting within the scope of his office or
employment, under circumstances where the
United States, if a private person, would be
liable to the claimant in accordance with the
law of the place where the act or omission
occurred.
28 U.S.C. § 1346(b)(1). The United States and its agents can
therefore be held liable with respect to tort claims “in the
same manner and to the same extent as a private individual
under like circumstances . . . .” Id. § 2674.
“The Act did not waive the sovereign immunity of the
United States in all respects, however; Congress was careful
to except from the Act’s broad waiver of immunity several
important classes of tort claims.” United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
ESQUIVEL V. UNITED STATES 13
467 U.S. 797, 808 (1984). Of particular relevance here is the
discretionary function exception, 28 U.S.C. § 2680(a), and
the misrepresentation exception, id. § 2680(h). We address
the applicability of each in turn.
A
Under the discretionary function exception to the FTCA,
the United States preserves its sovereign immunity from suit
as to
[a]ny claim based upon 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
function or duty on the part of a federal
agency or an employee of the Government,
whether or not the discretion involved be
abused.
Id. § 2680(a). “The discretionary function exception . . .
marks the boundary between Congress’ willingness to
impose tort liability upon the United States and its desire to
protect certain governmental activities from exposure to suit
by private individuals.” Varig Airlines, 467 U.S. at 808.
Congress enacted this exception to “prevent judicial
‘second-guessing’ of legislative and administrative
decisions grounded in social, economic, and political policy
through the medium of an action in tort.” Id. at 814.
The Supreme Court has created a two-step test to
determine whether the discretionary function exception can
be invoked. See United States v. Gaubert, 499 U.S. 315,
322–23 (1991); Berkovitz v. United States, 486 U.S. 531,
535–37 (1988). First, courts must determine whether the
challenged actions involve an “element of judgment or
14 ESQUIVEL V. UNITED STATES
choice.” Gaubert, 499 U.S. at 322. This inquiry looks at the
“nature of the conduct, rather than the status of the actor”
and the discretionary element is not met where “a federal
statute, regulation, or policy specifically prescribes a course
of action for an employee to follow.” Berkovitz, 486 U.S.
at 536. If there is such a statute or policy directing
mandatory and specific action, the inquiry comes to an end
because there can be no element of discretion when an
employee “has no rightful option but to adhere to the
directive.” Id.“When a specific course of action is not prescribed,
however, an element of choice or judgment is likely involved
in the decision or action.” Terbush, 516 F.3d at 1129. In
that case, the court moves to the second step and must
determine “whether that judgment is of the kind that the
discretionary function exception was designed to shield.”
Berkovitz, 486 U.S. at 536. Namely, the exception protects
only government actions and decisions based on “social,
economic, and political policy.” Id. at 537. Where the
government agent is exercising discretion, “it must be
presumed that the agent’s acts are grounded in policy when
exercising that discretion.” Gaubert, 499 U.S. at 324.
“If the challenged action satisfies both of these two
prongs, that action is immune from suit—and federal courts
lack subject matter jurisdiction—even if the court thinks the
government abused its discretion or made the wrong
choice.” Green, 630 F.3d at 1249–50. “The plaintiff has the
burden of showing there are genuine issues of material fact
as to whether the exception should apply, but the
government bears the ultimate burden of establishing that the
exception applies.” Id. at 1248–49. “[N]egligence is . . .
irrelevant to the discretionary function inquiry.” Kennewick
ESQUIVEL V. UNITED STATES 15
Irrigation Dist. v. United States, 880 F.2d 1018, 1029 (9th
Cir. 1989).
Appellants here do not challenge that the discretionary
function exception applies to the fire crew’s decision to
perform, and the subsequent performance of, a burnout on
their property. Instead, they challenge McKibbin’s
statements regarding the precautionary measures that the fire
crew would take while conducting the burnout. This is
understandable, since our precedent already establishes that
claims involving how the government conducts fire
suppression operations are generally barred by the
discretionary function exception. See Miller v. United
States, 163 F.3d 591 (9th Cir. 1998); see also Parsons v.
United States, 811 F. Supp. 1411 (E.D. Cal. 1992); Defrees
v. United States, 738 F. Supp. 380 (D. Or. 1990). 6 We
therefore turn to whether McKibbin’s communication with
Willard falls within the discretionary function exception.
1
First, we examine whether the communication between
McKibbin and Willard involved an element of judgment or
6
Precedent from other circuits also establishes that claims
challenging the performance of fire suppression operations are generally
barred by the discretionary function exception, see Hardscrabble Ranch,
LLC v. United States, 840 F.3d 1216 (10th Cir. 2016); cf. Foster
Logging, Inc. v. United States, 973 F.3d 1152 (11th Cir. 2020), as do
numerous unreported cases from our circuit, see Woodward Stuckart,
LLC v. United States, 650 F. App’x 380 (9th Cir. 2016) (unpublished);
Dovenberg v. United States, 407 F. App’x 149 (9th Cir. 2010)
(unpublished); Backfire 2000 v. United States, 273 F. App’x 661 (9th
Cir. 2008) (unpublished); Cary v. United States, No. 06-CV-2342-DMS,
2008 WL 11508582 (S.D. Cal. Mar. 12, 2008) (unpublished); Graves v.
United States, No. CIVS05-1661 FCD GGH, 2007 WL 776101 (E.D.
Cal. Mar. 12, 2007) (unpublished).
16 ESQUIVEL V. UNITED STATES
choice. See Gaubert, 499 U.S. at 322. Here, Appellants do
not dispute that McKibbin’s communications with Willard
were discretionary, nor do they direct us to any statute,
regulation, or policy that dictates the precise manner in
which fire crews are to communicate with landowners when
conducting burnouts on their property.
On the other hand, the government cites to numerous
provisions of the FSM that exude discretion by the Forest
Service when determining how best to fight wildland fires.
For example, the FSM states that “the nature of the wildland
fire environment is often dynamic, chaotic, and
unpredictable,” in “such an environment, reasonable
discretion in decision-making may be required,” and “Forest
Service employees must use their best judgment in applying
the guidance contained in these references to real-life
situations.” These quoted provisions clearly do not prescribe
a mandatory course of action, and indeed, this court has
found other FSM provisions to be discretionary. See Miller,
163 F.3d at 594–95; Green, 630 F.3d at 1250–51. This
discretion also extends beyond decisions about whether and
how to conduct fire suppression operations—it includes
decisions regarding whether to communicate with
landowners about fire suppression operations potentially
affecting their land. See Green, 630 F.3d at 1250–51
(concluding that the Forest Service’s decision whether to
notify landowners about the dangers posed by a nearby
backfire was discretionary).
For these reasons, we conclude that McKibbin’s
statements to Willard were discretionary.
2
Having determined that the statements were
discretionary, we must next consider whether the
ESQUIVEL V. UNITED STATES 17
communication reflects the exercise of judgment grounded
in social, economic, or political policy. See Berkovitz,
486 U.S. at 537.
In Miller, the Forest Service failed to contain the Bald
Butte Fire due to a lack of availability of air and ground
support when the fire was first spotted. 163 F.3d at 592.
Shortly thereafter, the fire was declared “escaped,” and the
fire management officer determined it was unsafe to commit
resources to fight the fire at that time. Id. On-the-ground
fire suppression efforts did not occur until the next day, at
which point the Bald Butte Fire joined two other fires and
crossed onto the Millers’ property causing damage. Id.at 592–93.
We held in Miller that the Forest Service’s choices in
how to fight a fire are “susceptible to a policy analysis” since
the Forest Service Manual’s stated objectives and policies
demonstrated
the Forest Service’s decision regarding how
to attack a fire involved a balancing of
considerations, including cost, public safety,
firefighter safety, and resource damage.
These considerations reflect the type of
economic, social and political concerns that
the discretionary function exception is
designed to protect.
Id. at 595. Our decision in Miller makes clear that decisions
regarding how to perform fire suppression operations are
policy-based decisions covered by the discretionary function
exception.
As discussed above, however, Appellants do not
challenge the decision to perform, and the subsequent
18 ESQUIVEL V. UNITED STATES
performance of, fire suppression efforts on their property.
Instead, Appellants’ challenge McKibbin’s statements to
Willard regarding the precautionary measures the fire crew
would take. Appellants therefore argue that Miller is
inapplicable to this case. We disagree.
Under the FTCA, the discretionary function exception
covers any claim “based upon the exercise or performance
or the failure to exercise or perform a discretionary function
or duty . . . whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a) (emphasis added). In other
words, the exception covers any conduct that is “based
upon” the performance of an act that otherwise falls within
the discretionary function exception. Although the FTCA
does not define the phrase “based upon,” in a similar context
the Supreme Court has explained that “the phrase is read
most naturally to mean those elements of a claim that, if
proven, would entitle a plaintiff to relief under his theory of
the case.” Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993)
(addressing use of the phrase in the Foreign Sovereign
Immunities Act).
Since Miller establishes that decisions regarding whether
and how to perform fire suppression operations are
discretionary functions rooted in policy, the discretionary
function exception extends to all other conduct “based upon
the exercise or performance” of these operations. A
communication between fire crews and property owners is
therefore covered by the discretionary function exception
under 28 U.S.C. § 2680(a) if such communication was based
upon the performance of fire suppression operations. For
this reason, we conclude that to be entitled to relief,
Appellants would need to meet their burden of alleging facts
showing that there is a genuine dispute as to whether
McKibbin’s statements to Willard were part of the decision
ESQUIVEL V. UNITED STATES 19
to set, and the subsequent conduct of, the burnout—which is
undisputedly a policy-based decision covered by the
discretionary function exception. See Miller, 163 F.3d
at 595–97.
Here, Appellants cannot make such a showing. By
Willard’s own admission, right before beginning work on
the burnout, McKibbin told Willard “that he was going to
have to burn some of my land to make a firebreak in order to
save the rest of my land and my home.” Also, according to
Willard, McKibbin convinced him that the team “would
protect [the] property and make sure that [the] property
would not be excessively burned.” This conversation,
including the alleged misstatements regarding the use of
foam, took place right before the burnout began and
consisted entirely of discussion about whether, where, and
how to set and manage the burnout. And, by McKibbin’s
account, if “Willard had wanted to forego a burnout,
[McKibbin] would not have done one. That would have put
the entire property at extreme risk, but it was [Willard’s]
prerogative to take the risk if [Willard] wanted to.” These
statements all support the conclusion that the conversation
between McKibbin and Willard concerned how to organize
and conduct suppression operations (in this case, a burnout)
which, according to the FSM, are discretionary decisions
governed by policy considerations.
Appellants rely heavily on Green to argue that
communications between fire crews and property owners are
not covered by the discretionary function exception. In
Green, the Forest Service discovered the Bullock Fire
burning in a remote area of the Coronado National Forest
and set containment boundaries for the fire, including
20 ESQUIVEL V. UNITED STATES
starting a backfire 7 near the appellant-homeowners’ private
properties. 630 F.3d at 1247–48. The Forest Service,
however, “did not take any action to protect Appellants’
properties,” including informing the homeowners about the
backfire being set or the risk to their land. Id. The backfire
ultimately exceeded the containment area and burned the
homeowners’ properties. Id. at 1248. The homeowners
sued, contending that “the Forest Service’s failure to notify
Appellants before and after the Forest Service lit the
backfire” prevented the discretionary function exception
from applying. Id. at 1252 (emphasis in original). We held
that the Forest Service’s failure to notify the property owners
had not been shown to be “susceptible to a policy analysis
grounded in social, economic, or political concerns,” id.
at 1247, since there was no evidence that policy analysis was
needed when making the decision of whether to notify
landowners of a nearby backfire and potential danger to their
land, id. at 1251–52.
But Green is distinguishable from this case. In Green,
the Forest Service did not take any action to fight the Bullock
Fire on the homeowners’ properties “then or later.” Id.
at 1248. Thus, the failure to communicate with landowners
was not based upon the broader decision to perform, and the
subsequent conduct of performing, fire suppression efforts.
The factual circumstances here are very different.
McKibbin’s communication with Willard was not an action
separate and apart from the burnout itself. Instead,
McKibbin had a conversation with Willard during the course
of preparing to deploy fire defensive measures. That
7
A “backfire” or “backburn” is a more intense fire than a “burnout,”
and is intentionally set to change the direction and force of an oncoming
wildfire. This is an extreme firefighting tactic that is typically used only
in emergency situations when firefighter safety is at risk.
ESQUIVEL V. UNITED STATES 21
conversation was critical to whether and how the actual
burnout was to be performed. 8
Accepting as true the factual allegations contained in
Appellants’ complaint, we conclude as a matter of law that
McKibbin’s communication with Willard was “based upon
the exercise or performance” of choosing how to organize
and conduct fire suppression operations, which undisputedly
requires the exercise of judgment grounded in social,
economic, or political policy. We therefore hold that the
government has met its burden of establishing that
Appellants’ claims fall within the scope of the discretionary
function exception.
B
We turn now to whether Appellants’ claims are
independently barred by the FTCA’s misrepresentation
exception. The district court concluded that to the extent
Appellants’ FTCA claims were grounded in allegations that
McKibbin lied to Willard about the precautionary measures
his team would take in conducting the burnout, the
misrepresentation exception applied. We agree.
The FTCA exempts from its coverage claims “arising out
of . . . misrepresentation [or] deceit.” 28 U.S.C. § 2680(h).
8
The facts of this case are also distinguishable from Kimball v.
United States, No. 1:12-CV-00108-EJL, 2014 WL 683702 (D. Idaho
Feb. 20, 2014) (unpublished). At issue in Kimball was whether Forest
Service communications and daily briefings advised homeowners to stay
away from their properties during the course of the Raines Fire in 2007,
and whether those communications were “informational in nature, not
policy driven,” and therefore not subject to the discretionary function
exception. Id. at *6. Here, however, the communication with Willard
happened as part of the policy decision to conduct the burnout and was
intertwined with that decision.
22 ESQUIVEL V. UNITED STATES
Under this exception, “claims against the United States for
fraud or misrepresentation by a federal officer are absolutely
barred,” Kim v. United States, 940 F.3d 484, 492 (9th Cir.
2019) (quotation omitted), including “misrepresentations
made willfully [or] . . . negligently,” Snyder & Assocs.
Acquisitions LLC v. United States, 859 F.3d 1152, 1160 (9th
Cir. 2017).
“[T]he essence of an action for misrepresentation,
whether negligent or intentional, is the communication of
misinformation on which the recipient relies.” Block v. Neal,
460 U.S. 289, 296 (1983). Appellants’ allegations fall
squarely within this definition. In their arguments below,
Appellants framed their theory as one where they suffered a
loss (the burning of 15 acres) as a result of Willard’s decision
to leave the property, made in reliance on McKibbin’s
intentionally false statement that he would use foam to
control the burnout. For example, Willard claimed that, to
his detriment, he “relied on BLM Agent Tom McKibbins’s
[sic] false promise to protect Mr. Willard’s land,” and
“Mr. McKibbin[] deci[ded] to . . . lie to Mr. Willard by
promising to spray foam to protect the property, thereby
inducing reliance.” This is exactly the kind of scenario to
which the misrepresentation exception is properly applied.
See Kim, 940 F.3d at 492–94; Leaf v. United States, 661 F.2d
740, 741–42 (9th Cir. 1981) (misrepresentation exception
barred claim by aircraft owner for accidental destruction of
aircraft leased by the DEA for a covert drug smuggling sting
when the owner was told it would be used by “a rock music
group for recreational purposes”).
Appellants argue that just because “it is alleged, or
admitted, that a government actor was deceitful in some
respect does not itself put the claim within 28 U.S.C.
§ 2680(h).” But the alleged misrepresentation in this case is
ESQUIVEL V. UNITED STATES 23
not collateral to the gravamen of the complaint. Willard
claims that absent McKibbin’s misrepresentations, Willard
would have “come back to save [his] land.” By Willard’s
own account, the alleged misrepresentations are “within the
chain of causative events upon which plaintiffs’ claim is
founded, and thus within the misrepresentation exception.”
Leaf, 661 F.2d at 742. We therefore hold that these claims
regarding McKibbin’s communication with Willard are
independently barred by the FTCA’s misrepresentation
exception.
IV
Finally, we address whether the district court made
improper factual findings in resolving the Rule 12(b)(1)
motion and properly denied additional jurisdictional
discovery in this case.
First, Appellants assert that the district court erred when
it resolved Appellants’ negligent communication claims
because “the district court ‘resolved’ for purposes of the
motion that one witness had ‘lied’ . . . .” But the district
court made clear that it was not making factual or credibility
determinations in resolving the government’s Rule 12(b)(1)
motion. Contrary to Appellants’ argument, the court was not
“resolving serious matters of credibility on a summary
basis.” Instead, the district court was viewing the facts
alleged in the light most favorable to Appellants and
concluding that, even were it to take those facts as true, the
court lacked subject matter jurisdiction over the case. This
was not in error.
The district court also did not abuse its discretion in
refusing to allow further jurisdictional discovery. While
Appellants argue that “the district court should have
permitted discovery and fact finding into what
24 ESQUIVEL V. UNITED STATES
communications were made, whether any of them were
made in error or misunderstood, and what other courses of
action might have been taken, had the communications been
made or understood differently,” Appellants have not
identified how they were prejudiced by the district court
assuming their allegations were true for the purpose of
determining jurisdiction. See Gonzalez, 814 F.3d at 1032
(holding there was no abuse of discretion in denying
jurisdictional discovery where the appellants could not show
they were prejudiced). Nor do Appellants explain how it
would make a difference to the jurisdictional analysis if
McKibbin’s statements were made in error given that both
the misrepresentation exception and the discretionary
function exception protect negligent conduct. See Snyder,
859 F.3d at 1160 (exception under § 2680(h) “includes
misrepresentations made willfully and misrepresentations
made negligently”); Kennewick Irrigation Dist., 880 F.2d
at 1029 (declaring that “negligence is simply irrelevant to
the discretionary function inquiry”).
Accordingly, we hold that the district court did not make
improper factual findings in resolving the Rule 12(b)(1)
motion and did not abuse its discretion by denying additional
jurisdictional discovery.
V
Appellants’ claims regarding McKibbin’s alleged
miscommunication with Willard fall within the scope of the
FTCA’s discretionary function exception and, alternatively,
fall within the FTCA’s statutory exception for claims based
on misrepresentation or deceit. Further, the district court did
not err in accepting the version of the facts alleged by
Appellants in order to determine whether it had jurisdiction,
ESQUIVEL V. UNITED STATES 25
and did not abuse its discretion in denying the request for
jurisdictional discovery.
AFFIRMED.
Each party shall bear its own costs.