Daytona Beach Personal Injury Lawyers
Free Consultations 386.258.1622

Eleventh Circuit Court of Appeals rules that discretionary function exception to Federal Tort Claims Act’s waiver of sovereign immunity did not apply in case involving allegedly negligent controlled fire burn by government

On August 24, 2020, in Foster Logging, Inc. et al, v. USA., No. 18-15033, the Eleventh Circuit Court of Appeals affirmed a district court’s dismissal of the plaintiff’s negligence case which alleged that the U.S. government had negligently failed to monitor and maintain a controlled fire burn on government property, resulting in damage to the plaintiff’s property.  The case was filed in federal court under the Federal Tort Claims Act (FTCA), but the district court dismissed the case pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction after concluding that the FTCA’s statutory waiver of sovereign immunity did not apply due to the “discretionary-function” exception contained in  28 U.S.C. § 2680(a).  On appeal, the Eleventh Circuit noted that the Supreme Court has developed a two-part test that courts must apply in determining whether challenged conduct falls within the discretionary-function exception to the FTCA’s waiver of sovereign immunity, citing United States v. Gaubert, 499 U.S. 315, 322 (1991). First, a court examines the nature of the challenged conduct or act to determine whether it is “discretionary in nature,” meaning that it involves “an element of judgment or choice.” Second, if the challenged conduct involves an element of judgment or choice, a court then determines “whether that judgment is of the kind that the discretionary function exception was designed to shield.” The Eleventh Circuit concluded that the first part of the two-part test was met, finding that there was at least some element of judgment or choice at play in how the U.S. Forestry Branch observed, monitored, and maintained the controlled burn. As for the second part of the test, the Eleventh Circuit noted that two sister circuits have applied the discretionary-function exception to bar FTCA lawsuits arising from government officials’ response to naturally occurring wildfires. See Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d 1216, 1222–23 (10th Cir. 2016); Miller v. United States, 163 F.3d 591, 595–96 (9th Cir. 1998). The Court concluded that the alleged conduct—the steps and measures taken to safely execute a controlled burn—by its nature, involves an exercise of discretion and considerations of social, economic, political, and public policy.