United States District Court, N.D. California
ORDER RE DISMISSAL RE: DKT. 1, 58
DONATO UNITED STATES DISTRICT JUDGE
case arises out of an accident at the “Thunder Over
Solano” airshow sponsored by the United States Air
Force (“USAF”) in May 2014 at Travis Air Force
Base. As alleged in the complaint, USAF invited Edward
Andreini, an experienced aerobatic pilot, to open the show by
performing a routine that included an inverted ribbon cut
maneuver. Dkt. No. 1 ¶ 25. The maneuver required
Andreini to invert the plane, fly low over the runway and cut
a ribbon stretched between two poles with the aircraft's
tail. Id. ¶ 28. For “reasons unknown,
” Andreini's plane hit the runway and came to a
stop. Id. He initially radioed that he was
“okay” but could not get out of the plane.
Id. ¶ 29. He then said “I'm on fire
-- get me out!” Id. ¶ 30. A dispatcher
called for fire and rescue crews as black smoke started to
rise from the aircraft. Id. Plaintiffs allege that
the first fire fighting vehicle arrived approximately 4
minutes and 30 seconds after the aircraft hit the runway, and
that additional help arrived approximately 5 minutes and 5
seconds after the crash. Id. ¶¶ 33-34.
Andreini could not be rescued and died from “extensive
thermal injuries.” Id. ¶ 34.
decedent's surviving spouse and children sued the United
States for negligence under the Federal Tort Claims Act, 28
U.S.C. § 2671 et seq. (“FTCA”). The
gravamen of the negligence claim is that “applicable
regulations, directives, standards, and orders”
required fire and rescue teams to be on the crash site within
three minutes of the accident. See, e.g., Dkt. No. 1
¶ 6. In plaintiffs' view, had the USAF firefighters
complied with that standard, Andreini would have survived the
crash. Id. Plaintiffs also brought a civil rights
claim in the complaint, which was dismissed without
opposition. Dkt. No. 18.
United States moved to dismiss the complaint for lack of
subject matter jurisdiction under Federal Rules of Civil
Procedure Rule 12(b)(1), and also brought an ancillary motion
under Rule 12(c). Dkt. No. 58. The government's main
argument is that the discretionary function exception under
the FTCA, 28 U.S.C. § 2680(a), bars the negligence claim
because there was no “specific mandatory
directive” imposing a three-minute response time and
the USAF's decisions about how and when to respond were
choices grounded in policy considerations. Dkt. No. 58 at 8.
The government brought a factual jurisdictional attack that
relied on extrinsic evidence about its firefighting policies
and procedures. See Safe Air For Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). The Court had previously
ordered discovery related to the motion. Dkt. No. 51.
dilemma before the Court is that the parties have argued the
jurisdiction dispute as a moving target across a spate of
agency documents and standards. The complaint was premised on
the allegation that the USAF was subject to a three-minute
response requirement under standards promulgated by the
National Fire Protection Association (“NFPA”).
See, e.g., Dkt. No. 1 ¶¶ 21-22. The
government denies that and says in its motion that the
applicable standard is in Department of Defense Instruction
6055.06, which provides for a response time of five minutes
in most cases for “unannounced” emergencies such
as an unexpected air crash. See Dkt. No. 58 at 6.
Plaintiffs adopt Instruction 6055.06 in their opposition
brief but argue that it imposes a one-minute response
requirement for “announced” emergencies, which
they believe applies here. See Dkt. No. 71 at 3.
Both sides compound these uncertainties by liberally citing
to a plethora of other agency and administrative materials.
Court cannot resolve the jurisdiction issue on these shifting
sands. It may be that the government is right or that
plaintiffs have stated a negligence claim based on a
mandatory and specific rule or regulation that precludes a
discretionary function exception. See Bailey v. United
States, 623 F.3d 855, 860 (9th Cir. 2010) (discretionary
function exception will not apply when a rule or regulation
“directs mandatory and specific action and the agency
has no lawful option but to adhere to the directive.”).
But the question cannot be decided on the current record
because identifying the specific agency conduct the plaintiff
challenges “is a necessary predicate to determining
whether the government had discretion to take that
action.” Young v. United States, 769 F.3d
1047, 1054 (9th Cir. 2014). This predicate is unduly vague
here, which is particularly problematic because the
negligence claim appears to be based entirely on the
government's nonconformance with a precise response time
standard. An FTCA claim may be brought on a common law duty
under California law, Gonzales v. United States, 814
F.3d 1022, 1027-28 (9th Cir. 2016), but the complaint does
not seem to allege a common-law theory.
this also casts substantial doubt on the plausibility of the
negligence claim as currently alleged. Plaintiffs appear to
have moved away from the three-minute NFPA requirement as the
cornerstone of their case, but that is the only the standard
stated in the complaint. Consequently, the Court dismisses
the complaint sua sponte with leave to amend. Gillibeau
v. City of Richmond,417 F.2d 426, 431 (9th Cir. 1969).
Plaintiffs may file an amended complaint no later than
April 10, 2017. If plaintiffs choose to
amend, they should identify the specific rules or
regulations, or common law duty, on which ...