Carl Anderson v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 2020
• Docket: 19-35574
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 20 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL ANDERSON, an individual; et al., No. 19-35574

Plaintiffs-Appellants, D.C. No. 1:18-cv-03011-SAB

v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee,

and

UNITED STATES ARMY; UNITED STATES DEPARTMENT OF DEFENSE,

Defendants.

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, Chief District Judge, Presiding

Argued and Submitted October 7, 2020 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,** District Judge.

Plaintiffs are a group of landowners who sued the United States pursuant to

the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., after a brush fire

ignited during an Army training exercise at the Yakima Training Center. The fire

spread off base and burned for several days over thousands of acres, damaging

plaintiffs’ property.1

The government moved to dismiss pursuant to the FTCA’s discretionary

function exception, 28 U.S.C. § 2680(a). In response to the government’s motion,

plaintiffs sought additional discovery. The district court allowed limited additional

written discovery but denied plaintiffs’ request to take depositions. The district

court granted the government’s motion to dismiss, concluding that Commander

Mathews’ order establishing conditions under which the training could proceed

was oral, ambiguous, and uncommunicated. Plaintiffs appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court’s

judgment.

** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1 The parties are familiar with the facts and we recount them only as necessary to resolve the issues on appeal. 2 We review the district court’s denial of jurisdictional discovery for abuse of

discretion. Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). We will

not disturb the district court’s ruling except upon the “clearest showing that the

dismissal resulted in actual and substantial prejudice to the litigant.” Abrego

Abrego v. Dow Chem. Co., 443 F.3d 676, 691 (9th Cir. 2006) (citation and internal

quotations omitted).

1. Plaintiffs first argue the district court erred by denying certain

additional written discovery. Considerable written discovery was produced by the

government, but the plaintiffs argue on appeal they were entitled to additional

written discovery concerning: (1) fire suppression policies and actions; (2) fire

prevention information; (3) information about the Army’s failure to warn; and (4)

additional internal policies. We conclude the district court did not abuse its

discretion by denying additional written discovery. Information about fire

suppression policies and fire prevention was already available in the record.

Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (denying request

for additional discovery when “further discovery would not demonstrate facts

sufficient to constitute a basis for jurisdiction” (citation and internal quotations

omitted)). The complaint does not allege a claim for failure to warn nor do

plaintiffs argue the government has a duty to provide warnings of training

3 exercises. Finally, the witness statements the plaintiffs refer to do not support the

existence of additional undisclosed internal policies.

2. Plaintiffs next argue the district court abused its discretion by denying

their request to take the depositions of several individuals, including Commander

Mathews, Senior Range Officer (SRO) Holman, Colonel Kuth, and a Fed. R. Civ.

P. 30(b)(6) deponent. Likewise, plaintiffs argue the district court abused its

discretion by declining to hold an evidentiary hearing.

Before our court, the government conceded that the oral nature of

Commander Mathews’ order did not render it insufficiently specific for purposes

of the first step in the discretionary function analysis. We note that Commander

Mathews described his order as “specific” in the first statement he gave to Colonel

Kuth during the administrative investigation after the fire. Discrepancies in the

witness statements also raise questions regarding the weather and conditions

updates Commander Mathews received on the day of the fire. Because the record

contains significant inconsistencies between the statements given by the most

critical witnesses, plaintiffs are entitled to an opportunity to cross-examine

Commander Mathews, SRO Holman and Colonel Kuth. An evidentiary hearing

will likely be required to resolve the issues presented by the government’s motion.

On remand, we leave it to the district court to determine whether depositions of

4 Commander Mathews, SRO Holman, Colonel Kuth, or a government witness

under Fed. R. Civ. P. 30(b)(6) would be helpful to prepare for an evidentiary

hearing.

REVERSED AND REMANDED.

Appellee to bear costs.