                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WOODWARD STUCKART, LLC;                          No. 13-36132
CRAIG WOODWARD; LUCY
WOODWARD; MICHAEL STUCKART;                      D.C. Nos. 2:11-cv-00322-SU;
COLE BROTHERS, INC.                              2:11-cv-00323-SU

              Plaintiffs - Appellants,           MEMORANDUM*

 v.

UNITED STATES OF AMERICA

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding


                       Argued and Submitted March 11, 2016
                                Portland, Oregon




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Before: BERZON and WATFORD, Circuit Judges, and WALTER,** Senior
District Judge.

      Plaintiffs-Appellants Woodward Stuckart, LLC, Craig Woodward, Lucy

Woodward, Michael Stuckart, and Cole Brothers, Inc. (collectively, “Appellants”)

are a group of private timberland owners whose property was damaged by the

Bridge Creek Fire, which escaped from the Ochoco National Forest. The United

States Forest Service (“FS”) decided to “use” the Bridge Creek Fire for “resource

management,” a practice the FS refers to as “Wildland Fire Use” (“WFU”). On

August 16, 2008, the fire rapidly expanded and spread onto Appellants’ land, at

which time suppression efforts commenced. Appellants later sued the United

States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”), but

the district court determined that Appellants’ suit was barred by the “discretionary

function exception” to the FTCA’s general waiver of sovereign immunity. 28

U.S.C. § 2680(a). We affirm.

       The discretionary function exception provides that the United States

remains immune from suit under the FTCA when the plaintiff’s claim is “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


       **
              The Honorable Donald E. Walter, Senior District Judge for the United
States District Court for the Western District of Louisiana, sitting by designation.
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Government, whether or not the discretion involved be abused.” Id. The Supreme

Court has set out a two-part test to determine whether the discretionary function

exception is applicable. Berkovitz v. United States, 486 U.S. 531, 536 (1988).

      1. As to the first prong of the Berkovitz test, we agree with the district

court’s determination that the FS retained discretion as to whether and when to

begin suppression. Even assuming that the FS’s actions violated the WFU

guidelines that Appellants identify, nothing in the guidelines required the FS to

cease WFU and begin suppression immediately if such violations occurred.

      “If there is . . . 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.’” Terbush v.

United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting Berkovitz, 486 U.S. at

536). However, “an agency retains discretion whether to act where no statute or

agency policy dictates the precise manner in which the agency is to complete the

challenged task.” Bailey v. United States, 623 F.3d 855, 860 (9th Cir. 2010).

      Here, the guidelines that Appellants point to as “mandating” suppression do

not direct the FS to take any specific action regarding suppression if the guidelines

are not followed. Appellants principally rely on the guidelines’ characterization of

the response to a wildland fire as an “either/or” dichotomy—that is, a fire may


                                           3
either be suppressed or managed as a WFU, but never both simultaneously, and

when suppression efforts begin for a fire that was initially managed as a WFU, that

fire can never again be returned to WFU status. But that “either/or” dichotomy

does not mandate that if there is any deviation from the WFU guidelines then

suppression must immediately begin.

      Appellants also point to the guidelines’ discussion of the factors to be

weighed when the Agency Administrator completes the “decision criteria

checklist,” but that argument is unavailing. The guidelines direct the Agency

Administrator to consider whether “current fire activity precludes the ability to

manage the fire with adequate resources and skill mixes”; the Agency

Administrator is not instructed that he must answer this question affirmatively in

any given situation. The first prong of the Berkovitz test is therefore met.

      2. The harder question in this case is the second Berkovitz prong, which

involves consideration of whether the decisions made during the course of the FS’s

WFU management were “of the kind that the discretionary function exception was

designed to shield,” i.e. decisions involving public policy. United States v.

Gaubert, 499 U.S. 315, 322–23 (1991). “Public policy has been understood to

include decisions ‘grounded in social, economic, or political policy.’” Terbush,

516 F.3d at 1129 (quoting United States v. Varig Airlines, 467 U.S. 797, 814


                                           4
(1984)). The Ninth Circuit has generally held that “the design of a course of

governmental action is shielded by the discretionary function exception, whereas

the implementation of that course of action is not.” Whisnant v. United States, 400

F.3d 1177, 1181 (9th Cir. 2005) (emphases omitted). Relatedly, “matters of

scientific and professional judgment—particularly judgments concerning

safety—are rarely considered to be susceptible to social, economic, or political

policy.” Id.

      The WFU practice, in the general sense, is obviously grounded on

considerations of public policy. But the on-the-ground decisions made during

WFU management are akin to matters of scientific and professional judgment,

rather than decisions involving “social, economic, and political policy.” In this

case, Appellants do not challenge the overall propriety of the WFU strategy, only

that the strategy was misapplied in this specific instance. Such an argument does

not necessarily implicate the type of policy judgments that the discretionary

function exception was designed to protect. See Green v. United States, 630 F.3d

1245, 1251–52 (9th Cir. 2011) (holding that the FS’s decision to light a “backfire”

in response to a naturally caused wildfire was discretionary, but the failure to

notify neighboring landowners of the backfire was not a policy based choice).




                                           5
      Nevertheless, our precedent treats the FS’s response to multiple wildland

fires as being grounded on competing public policy considerations. We may not

depart from that precedent. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.

2003). Specifically, we have previously held that the FS’s allocation of fire

suppression resources to multiple fires was shielded by the discretionary function

exception because that allocation involved a balancing of competing policy

interests. Miller v. United States, 163 F.3d 591, 596 (9th Cir. 1998). This court

later explained that Miller’s holding constituted an exception to the

“design/implementation distinction.” Whisnant, 400 F. 3d at 1182 n. 3.

Specifically, we explained that, although the implementation of a government

policy is not usually considered a policy choice, “[t]he implementation of a

government policy is shielded where the implementation itself implicates policy

concerns, such as where government officials must consider competing fire-fighter

safety and public safety considerations in deciding how to fight a forest fire . . . .”

Id. (citing Miller, 163 F.3d at 595–96). The district court correctly applied this

precedent in finding that the FS’s decisions in this case were grounded in public

policy.

      Appellants argue that Miller and other cases applying it involved fire

suppression as opposed to fire use, and therefore the rationale of Miller is


                                            6
inappropriate here. We disagree. Similar to the situation in Miller, the Bridge

Creek Fire was one of multiple fires burning on the Ochoco in August 2008. The

FS’s guidelines directed the FS to consider whether those fires should be

immediately suppressed, or whether the fires should be allowed to burn as WFUs

to reduce the potential for even worse fires in the future. Under the FS guidelines,

a WFU response to a naturally-caused fire is considered “an emergency action”

and “[i]t receives consideration, management attention, and management policies

equal to wildfire suppression . . . .” Accordingly, just as in Miller, the FS’s

response to the Bridge Creek Fire implicated competing public policy

considerations, and was thus protected by the discretionary function exception.

      The district court properly applied the discretionary function test as currently

understood in the Ninth Circuit.

      Affirmed.




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