Seth Burns v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2019
• Docket: 18-15014
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SETH BURNS, No. 18-15014

Plaintiff-Appellant, D.C. No. 3:16-cv-08033-NVW

v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted June 11, 2019 San Francisco, California

Before: GOULD, IKUTA, and R. NELSON, Circuit Judges.

Seth Burns appeals the district court’s entry of summary judgment in favor

of the United States on the ground that it lacked subject matter jurisdiction. We

have jurisdiction to review the district court’s order under 28 U.S.C. § 1291.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The district court did not err in concluding that the discretionary function

exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a), applied to

Burns’s claims. First, the decision whether to temporarily close Forest Road 557

“involve[d] an element of judgment or choice.” Terbush v. United States, 516 F.3d

1125, 1129 (9th Cir. 2008) (internal quotation marks omitted). Burns did not

identify any federal statute, regulation, or policy that required Forest Service

officials to close Road 557. Burns points to 36 C.F.R. § 212.52(b)(2), but that

regulation requires closure of a National Forest System road only “[i]f the

responsible official determines that motor vehicle use” on such a road is causing or

will cause “considerable adverse effects” on public safety or the environment.

Determining whether motor vehicle use is causing or will cause “considerable

adverse effects” on public safety is a decision that at minimum requires a judgment

about what constitutes a “considerable” effect. Nor did the relevant officials here

make such a determination. Burns also points to FSM 7733.04c, but that provision

of the Forest Service Manual states only that Forest Service officials have the

responsibility, “[t]o the extent permitted by funding levels, [to] systematically

provide for elimination of identified hazards,” a standard that gives officials

substantial discretion.

2 Second, the decision whether to temporarily close Road 557 (under 36

C.F.R. § 212.52(b)(2), FSM 7733.04c or otherwise) is “susceptible to policy

analysis,” Terbush, 516 F.3d at 1130, because it implicates competing interests in

public safety, resource protection, and public use. Such decisions are “precisely

the kind the discretionary function exception was intended to immunize from suit.”

Valdez v. United States, 56 F.3d 1177, 1180 (9th Cir. 1995) (quoting Childers v.

United States, 40 F.3d 973, 976 (9th Cir. 1994)).

AFFIRMED.