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Andreini v. United States

United States District Court, N.D. California

September 6, 2017

LINDA ANDREINI, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER RE MOTION TO DISMISS FIRST AMENDED COMPLAINT RE: DKT. NO. 90

          JAMES DONATO UNITED STATES DISTRICT JUDGE

         Plaintiffs filed an amended complaint, Dkt. No. 89, after dismissal of the initial complaint with leave to amend. Dkt. No. 87. The United States asks to dismiss the amended complaint for lack of subject-matter jurisdiction and failure to allege a plausible claim. Dkt. No. 90. The motions are denied.

         The material facts alleged in the amended complaint are largely unchanged from the prior version. In May 2014, the United States Air Force (“USAF”) invited Edward Andreini, a civilian stunt pilot, to open an airshow at the Travis Air Force Base by flying an inverted plane low over a runway. Dkt. No. 89 ¶ 16. During the maneuver, Andreini's plane hit the ground for “reasons unknown.” Id. The plane slid for ten seconds on the runway before stopping. Id. Andreini initially broadcast that he was trapped in the plane but uninjured. Shortly after, Andreini broadcast that he was on fire and could not get out. Id. ¶ 18.

         The first fire-fighting vehicle arrived four minutes and thirty seconds after impact. Id. ¶ 21. This vehicle was “not a qualifying ARFF vehicle” because it “did not have the appropriate extinguishing agent on board” and had “little to no effect on the fire.” Id. Five minutes and five seconds after impact, another fire-fighting vehicle arrived. Dkt. No. 89 ¶ 22. This vehicle extinguished the fire but did not pull out Andreini in time to save him. An autopsy report showed that Andreini had suffered “no blunt force trauma” but died of “extensive thermal injuries.” Id.

         Andreini's surviving spouse and children sued the United States for negligence under the Federal Torts Claim Act, 28 U.S.C. § 2671 et seq. (“FTCA”). The theory of the initial complaint was that USAF did not follow safety policies requiring fire and rescue teams to arrive at a crash site within three minutes. Dkt. No. 1 ¶ 6. The United States moved to dismiss that claim for lack of subject-matter jurisdiction under the FTCA's discretionary function exception. Dkt. No. 58. The Court dismissed the complaint for a different reason. In plaintiffs' opposition papers, they abandoned the “the three-minute NFPA requirement as the cornerstore of their case, ” which cast serious doubt on the complaint's overall plausibility. Dkt. No. 87.

         In the amended complaint, plaintiffs have shifted their legal claim from a failure to comply with federal safety policies to simple negligence under California state law. The United States again invokes the discretionary function exception to challenge jurisdiction under Rule 12(b)(1), and moves to dismiss under Rule 12(b)(6) for failure to state a claim.

         The government's arguments are not well taken. Turning to jurisdiction first, the government has the burden of establishing that the discretionary function exception applies. Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014). While the non-conclusory factual allegations of a complaint are accepted as true for Rule 12(b)(6) purposes, allegations of jurisdictional facts “are not afforded presumptive truthfulness; on a motion to dismiss for lack of subject matter jurisdiction, the court may hear evidence of those facts and resolve factual disputes where necessary.” Id.

         The Court has no jurisdiction over suits against the United States unless the federal government has waived its sovereign immunity. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). The FTCA waives the federal government's immunity for damages arising out of:

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 “discretionary function exception” potentially takes back the FTCA waiver and excludes jurisdiction over:

[a]ny claim based upon . . . 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.

28 U.S.C. § 2680(a).

         The application of the discretionary function exception turns on “whether the action is a matter of choice for the acting employee.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). If the challenged action was made under a mandatory duty, with no exercise of discretion, that is the end of the matter -- the federal government may be sued. But if “the challenged conduct involves an element of judgment, ” the conduct is immunized if “that judgment is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress' desire 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 536-537 (citing United States v. Varig Airlines, 467 U.S. 797, 814 (1984)).

         Berkovitz requires a “particularized analysis of the specific agency action challenged.” GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002). “[T]he proper level of inquiry must be act by act.” In re Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995). The allegations in the complaint define the specific conduct for review and ...


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