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Backfire 2000 vs. United States

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FILED MISSOULA, MT
2006 SEP 5 PM 4 13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

BACKFIRE 2000 (an ad hoc citizen's
group which is comprised of
individual plaintiffs), et al.,
Plaintiffs,

vs.

UNITED STATES OF AMERICA,
Defendant


ALLSTATE INSURANCE COMPANY, as
subrogee of Larry Baecht, et al.,
Plaintiff,

vs.

UNITED STATES OF AMERICA,
Defendant.


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CV 03-198-M-DWM


ORDER


CV 03-201-M-LBE

V. Analysis

A. Law of discretionary function.

The United States is immune from suit except to the extent it has waived its sovereign immunity. Reed ex rel. Allen v. U.S. Dept. of Interior, 231 F.3d 501, 504 (9th Cir. 2000). The Federal Tort Claims Act waives the government's immunity for "tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. S 2674. However, certain exceptions apply. See 28 U.S.C. 5 2680. When the discretionary function exception found in Section 2680 applies, courts are without jurisdiction to hear the claim. O'Toole v. United States, 295 F.3d 1029, 1032 (9th Cir. 2002).

The discretionary function exception provides:

The provisions of this chapter and section 1346(b) of this title shall not apply to-(a) Any 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.

28 U.S.C. 5 2680(a).

There is a two-step test to determine whether challenged Government employee conduct is immune under the discretionary function exception. See Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). Only Government actions satisfying both steps are immune from tort liability.

First, the employee must have had discretion to make the challenged decision or judgment that led to the plaintiff's damages. Id. at 536. "[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id.

Second, the challenged decision or judgment must be "of the kind that the discretionary function exception was designed to shield." Id. In creating the discretionary function exception, Congress "desire[d] 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. (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 814 (19841(internal quotation marks omitted) (hereinafter Varig Airlines)). Thus, only discretionary Government actions "based on considerations of public policy" are protected under the exception. Id.; see also Dalehite v. United States, 346 U.S. 15, 36 (1953) ("Where there is room for policy judgment and decision there is discretion.").

Once the weighing of policy considerations has taken place and the Government has decided on a course of action, the Government has a duty to implement that course of action with reasonable care. See Huber v. United States, 838 F.2d 398, 400- 01 (9th Cir. 1988). Negligent execution of a course of action that has already been put into place is not insulated from review under the discretionary function exception. Id.

But "[i]ssues of negligence are irrelevant to the discretionary function inquiry." In Re Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995). As long as both steps of the test are satisfied, an admittedly negligent act is insulated from review, even if the employee abused his or her discretion. 28 U.S.C. 5 2680(a); Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1029 (9th Cir. 1989); see also Berkovitz, 486 U.S. at 538- 39 n.4 ("[The Federal Tort Claims Act] is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion.") (quoting H.R. Rep. No. 79-1287, at 6 (1945)).

In applying the two-prong analysis here, it is necessary to examine each separate action "to determine whether the specific actor had discretion of the type Congress intended to shield." In Re Glacier Bay, 71 F.3d at 1451. The Government must prove that the discretionary function exception applies. GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002).


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