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.