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Foster Logging, Inc. v. United States

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Aug 24, 2020
973 F.3d 1152 (11th Cir. 2020)

Opinion

No. 18-15033

08-24-2020

FOSTER LOGGING, INC., American Guarantee & Liability Insurance Company, as subrogee of Foster Logging, Inc., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Michael Bernard Stevens, Shirley Jean McEachern, Derrevere Stevens Black & Cozad, West Palm Beach, FL, Billy N. Jones, Jones Osteen & Jones, Hinesville, GA, for Plaintiffs-Appellants. Bradford Collins Patrick, James C. Stuchell, U.S. Attorney Service-Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Defendant-Appellee.


Michael Bernard Stevens, Shirley Jean McEachern, Derrevere Stevens Black & Cozad, West Palm Beach, FL, Billy N. Jones, Jones Osteen & Jones, Hinesville, GA, for Plaintiffs-Appellants.

Bradford Collins Patrick, James C. Stuchell, U.S. Attorney Service-Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Defendant-Appellee.

Before JORDAN, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge Plaintiffs–Appellants Foster Logging, Inc. and American Guarantee & Liability Insurance Company ("American Guarantee") appeal the district court's dismissal of their complaint, pursuant to Fed. R. Civ. P. 12(b)(1), for lack of jurisdiction. Their complaint alleged negligence claims against Defendant–Appellee the United States under the Federal Tort Claims Act ("FTCA"). In response, the United States moved to dismiss the complaint based on the discretionary-function exception to the FTCA's waiver of sovereign immunity. On appeal, Plaintiffs argue the district court (1) improperly considered facts outside the allegations in the complaint, and (2) misapplied the discretionary-function exception to FTCA liability. After review and with the benefit of oral argument, we affirm.

I. PROCEDURAL BACKGROUND

A. The Complaint

In their complaint, Plaintiffs alleged that the Fort Stewart-Hunter Army Airfield Forestry Branch ("U.S. Forestry Branch") "negligently failed to observe, monitor[,] and maintain" a controlled fire burn in area B-20 near Fort Stewart, a military base in Georgia, resulting in damage to Foster Logging's property. The complaint alleged that Plaintiff Foster Logging entered into a wood service contract with S.A. Allen, Inc., to cut and convert wood on the Fort Stewart Reservation near the Luzon Range in area B-19.5. Plaintiff American Guarantee provided insurance coverage for multiple items on Foster Logging's Schedule of equipment. On April 20, 2017, the U.S. Forestry Branch initiated a controlled fire burn in area B-20 adjacent to the area where Foster Logging was harvesting timber.

We emphasize that our review of Plaintiffs' claims is limited to the Defendant's alleged negligence in failing to observe, monitor, and maintain the controlled burn. As we note below, Plaintiffs have never challenged the Defendant's decision to initiate the burn. And to the extent that Plaintiffs would purport to proceed under the theory that the Defendant negligently failed to warn them that it was initiating the burn, that argument is not properly before us. While at oral argument Plaintiffs' counsel briefly discussed failure to warn, it was not clearly raised in the complaint or at any point during the district court proceedings, nor was it sufficiently developed in Plaintiffs' brief on appeal. "Generally, [a]rguments raised for the first time on appeal are not properly before this Court." Waldron v. Spicher, 954 F.3d 1297, 1304 (11th Cir. 2020) (quotation marks omitted).

The following day, a Friday, Foster Logging parked its equipment and left area B-19.5 around 2:30 p.m. According to the complaint, the U.S. Forestry Branch "negligently failed to observe, monitor[,] and maintain said burn, allowing fire to escape area B-20 and to enter the land and pine trees on which [Foster Logging] was logging." As the fire entered area B-19.5, certain equipment and property of Foster Logging were burned and destroyed, causing loss of equipment, fuel, and harvested timber, among other things. As a result of the damage to the property, Plaintiff Foster Logging was unable to harvest timber for three days and was required to rent equipment to continue harvesting timber in area B-19.5. Plaintiff American Guarantee, as Foster Logging's insurer, ultimately paid Foster Logging a total of $247,384.12 for its insured losses. Foster Logging also incurred $125,110.25 in out-of-pocket damages beyond the indemnity payments.

B. District Court Proceedings

Subsequently, the Plaintiffs Foster Logging and American Guarantee brought the instant suit. American Guarantee sought to recover $247,348.12, plus costs, as recompense for the payments it made to Foster Logging for the damage to its equipment, which American Guarantee alleged resulted from the U.S. Forestry Branch's failure to properly observe, monitor, and maintain the controlled burn. Foster Logging sought to recover the additional $125,120.52 in out-of-pocket spending for uncovered losses, plus costs.

The Defendant United States moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1), arguing the district court lacked jurisdiction to consider Plaintiffs' claims because the government retained its sovereign immunity. The Defendant argued that the complaint failed to allege a plausible claim that fell outside the discretionary-function exception to the FTCA's waiver of sovereign immunity. Citing United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L.Ed.2d 335 (1991), and applying the two-part test articulated in that decision, the Defendant argued the challenged conduct alleged in the complaint—the observation, monitoring, and maintenance of the controlled burn—(1) involved an element of judgment or choice; and (2) was susceptible to policy analysis.

In response, the Plaintiffs argued the Defendant United States had waived its immunity under the FTCA because the U.S. Forestry Branch's failure to observe, monitor, and maintain the controlled burn in a safe manner was not a permissible exercise of policy judgment. Importantly, Plaintiffs did not dispute that the challenged conduct involved an element of judgment or choice. Rather, Plaintiffs focused their analysis solely on whether the U.S. Forestry Branch officials exercised that judgment in a permissible manner.

The district court ultimately granted the United States' motion and dismissed the complaint. The district court concluded that the negligence claim alleged in the complaint fell within the FTCA's discretionary-function exception, and thus the court lacked jurisdiction over the complaint. The district court reasoned that the U.S. Forestry Branch's decisions as to how to monitor and maintain the fire (1) involved an element of judgment or choice, and (2) implicated important policy considerations. This appeal followed.

As an alternative to denying the Defendant's motion to dismiss, Plaintiffs' response to the motion asked the district court to grant them leave to amend the complaint following a reasonable period within which to take limited discovery related to subject matter jurisdiction. On appeal, however, Plaintiffs do not argue that they were entitled to discovery or to amend the complaint prior to the district court's ruling.
They also do not argue that discovery perhaps would have led to some as-yet-unknown internal policy or directive of the U.S. Forestry Branch that would have removed all judgment or choice in the first instance. Indeed, Plaintiffs have never contested the first part of Gaubert's test. See infra n.5.

II. STANDARD OF REVIEW

In reviewing the district court's dismissal of Plaintiffs' complaint, we accept the allegations in the complaint as true, and we review de novo the district court's application of the discretionary-function exception to the FTCA's waiver of sovereign immunity. Douglas v. United States, 814 F.3d 1268, 1273–74 (11th Cir. 2016) ; Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir. 1998) ; see also JBP Acquisitions, LP v. United States ex rel. FDIC, 224 F.3d 1260, 1263 (11th Cir. 2000) ("We review de novo the district court's dismissal of an action for lack of subject matter jurisdiction and its interpretation and application of statutory provisions.").

We first outline the discretionary-function exception to the FTCA's waiver of sovereign immunity and the Supreme Court's two-part test in Gaubert.

III. DISCRETIONARY-FUNCTION EXCEPTION

Plaintiffs cannot sue the United States unless the United States unequivocally has waived its sovereign immunity. See Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015) ("It is well settled that the United States, as a sovereign entity, is immune from suit unless it consents to be sued."). The FTCA waives the United States' sovereign immunity from suit in federal courts for its employees' negligence. See 28 U.S.C. § 1346(b).

If sovereign immunity applies, a court lacks subject matter jurisdiction to consider a claim. Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015).

Congress, however, has carved out certain exceptions to that limited waiver, including the discretionary-function exception in 28 U.S.C. § 2680(a). The discretionary-function exception provides that, notwithstanding § 1346(b), the United States preserves its sovereign immunity as to "[a]ny claim ... 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." 28 U.S.C. § 2680(a) (emphasis added). "[T]he purpose of the exception is 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." Gaubert, 499 U.S. at 323, 111 S. Ct. at 1273 (quotation marks omitted).

The exceptions found in the Act are codified in 28 U.S.C. § 2680, and "must be strictly construed in favor of the United States." Zelaya, 781 F.3d at 1322 (quotation marks omitted).

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. See id. at 322, 111 S. Ct. at 1273. 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." Id. at 322, 111 S. Ct. at 1273 (quotation marks omitted); see also Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997) (quoting Gaubert ). 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." Id. at 322–23, 111 S. Ct. at 1273 (quotation marks omitted).

As to the first part of the test, "if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ " there is no judgment or choice involved. Id. at 322, 111 S. Ct. at 1273 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958–59, 100 L.Ed.2d 531 (1988) ); see also Phillips v. United States, 956 F.2d 1071, 1076 (11th Cir. 1992). The inquiry focuses on "whether the controlling statute or regulation mandates that a government agent perform his or her function in a specific manner." Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (quotation marks omitted).

As an initial matter, there is no contention on appeal—nor has there been at any point in the proceedings—that the first part of the Gaubert test is not met in this case. Plaintiffs have not identified, either in the district court, in their briefs on appeal, or at oral argument, any "federal statute, regulation, or policy specifically prescrib[ing] a course of action" that U.S. Forestry Branch officials were to follow after initiating a controlled burn. See Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273 (quotation marks omitted). Thus, 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.

Plaintiffs do not argue that the U.S. Forestry Branch officials had no room to exercise judgment or choice (i.e., no discretion) in their decisions about how they observed, monitored, and maintained the burn. See supra n.2. Rather, Plaintiffs have steadfastly focused their argument on the second part of Gaubert's test, insisting that any negligent decisions that allowed the fire to spread to private property and destroy Plaintiffs' private equipment would not have been a permissible exercise of that judgment or choice.

In this particular appeal, our analysis is therefore limited to the second part of Gaubert's test: whether the judgment or choice that was exercised by the U.S. Forestry Branch is "the type of judgment that the discretionary function exception was designed to shield." Hughes, 110 F.3d at 768. Stated another way, the issue here is whether "the nature of the actions taken" by U.S. Forestry Branch officials in observing, monitoring, or maintaining the controlled burn were "susceptible to policy analysis." Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275. This inquiry is not concerned with "the subjective intent of the government employee" or whether he or she "actually weighed social, economic, and political policy considerations before acting." Ochran, 117 F.3d at 500.

Here, as to the second part of Gaubert's test, the district court concluded that the U.S. Forestry Branch's decisions related to its monitoring and maintenance of a controlled burn "involved an element of judgment and implicated important policy considerations." The district court cited several policy implications the U.S. Forestry Branch employees might reasonably need to consider, including the safety of citizens in the area, the safety of those monitoring the fire, the management of limited resources used to control a fire, and the protection of surrounding natural resources, as well as unique security and military concerns due to the burn's proximity to the Fort Stewart Military Base.

IV. POLICY CONSIDERATIONS NOT ALLEGED IN THE COMPLAINT

As a threshold claim regarding the second part of Gaubert's test, Plaintiffs argue the district court's discussion of particular social, economic, political, and public policy considerations was improper because (1) the court should have limited its consideration to the allegations on the face of the Plaintiff's complaint, (2) the complaint did not include any allegations about the policy considerations at play, and (3) the complaint did not include any factual allegations as to what actions the U.S. Forestry Branch took in an effort to monitor or maintain the controlled burn. In the absence of such allegations, Plaintiffs contend it was improper for the district court (1) to speculate as to what policy concerns might have been at play, and (2) to adopt facts from other published court decisions where the government presented evidence that particular policy considerations actually were at play.

Plaintiffs' arguments misunderstand the pleading requirements and the relevant inquiry underlying the discretionary-function exception. To survive dismissal, Plaintiffs were required to "allege a plausible claim that falls outside the discretionary function exception." Douglas, 814 F.3d at 1276 ; see also Gaubert, 499 U.S. at 324–25, 111 S. Ct. at 1274–75 ("For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime."). In other words, Plaintiffs' complaint must have alleged facts showing that a government employee engaged in conduct that, by its nature, is not the kind of conduct that is based on or grounded in considerations of public policy. Gaubert, 499 U.S. at 324–25, 111 S. Ct. at 1274–75.

Here, the Plaintiffs' complaint identifies the challenged conduct as the U.S. Forestry Branch's negligent failure to "observe, monitor[,] and maintain" the controlled burn once the fire was started. The relevant question, then, is whether the decisions the U.S. Forestry Branch officials made in planning how to observe, monitor, and maintain the controlled burn, even if negligent, are the kind of conduct "susceptible to policy analysis." Id. at 325, 111 S. Ct. at 1275 (emphasis added). As to the second step of Gaubert, the issue is not whether the officials or employees actually weighed any particular policy considerations before taking (or declining to take) any particular action. See Ochran, 117 F.3d at 500 ; Hughes, 110 F.3d at 768. The inquiry here is not fact-based. See Autery v. United States, 992 F.2d 1523, 1530–31 (11th Cir. 1993). Rather, " Gaubert ... cautions against conducting a fact-based inquiry into the circumstances surrounding the government actor's exercise of a particular discretionary function, urging courts instead to look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one we would expect inherently to be grounded in considerations of policy." Id. (quotation marks omitted).

Further, as to the second part of Gaubert we are not aware of any precedent—and Plaintiffs cite none—indicating that at the motion-to-dismiss stage, a federal court must limit its discretionary-function-exception analysis to policy considerations a plaintiff's complaint chooses to expressly allege were at play. To the contrary, this Court previously has affirmed the dismissal of claims under the discretionary-function exception notwithstanding the apparent absence of any allegations or evidence concerning actual policy considerations undertaken by the government employees. See, e.g., Mesa v. United States, 123 F.3d 1435, 1438–39 (11th Cir. 1997) (discussing at length what considerations a DEA agent might hypothetically weigh in deciding how to locate and identify the subject of an arrest warrant).

We recognize that the district court referenced two particular court decisions in which the government presented evidence that certain policy considerations actually were at play in controlling forest fires. However, this in no way tainted the district court's analysis. If anything, the fact that government officials in analogous situations were found to have actually weighed public policy considerations in exercising their discretion is relevant to whether the challenged discretionary conduct here was "susceptible to policy analysis." See Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275.

The district court, in a footnote, cited Miller v. United States, 163 F.3d 591 (9th Cir. 1998) (involving a forest fire), and Thune v. United States, 872 F. Supp. 921 (D. Wyo. 1995) (involving a controlled burn) for the proposition that other courts have found that the government must consider a variety of policy implications when deciding how to control a spreading fire. In Thune, the government presented evidence of the Forest Service Manual, which covers "the conduct of both conducting controlled fires and fighting wildfires." See Thune, 872 F. Supp. at 924 (citing the Forest Service Manual, which "outlin[es] factors to be considered in controlled burns," as well as "elements to be weighed in efforts to control out of control fires"). The district court in Thune observed that "if the presence of negligence were allowed to defeat the discretionary function exception, the exception would prove a meager shield indeed against tort liability." Id. at 925 (quoting Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1029 (9th Cir. 1989) ).

For all of the above reasons, the district court committed no procedural error in its facial analysis of Plaintiffs' complaint. Before examining the substantive application of the discretionary-function exception to the U.S. Forestry Branch's conduct, we step back in time to discuss the Supreme Court's Rayonier decision in 1957.

V. RAYONIER IN 1957

While today we must apply Gaubert's above-described two-part test, Gaubert, 499 U.S. at 322–23, 111 S. Ct. at 1273–74, we review Rayonier Inc. v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L.Ed.2d 354 (1957), because it too involved an FTCA claim based on the government's negligent management of a forest fire that spread from government land and damaged plaintiffs' property. 352 U.S. at 315–17, 77 S. Ct. at 375. In Rayonier, the government allowed railway trains to run over a right of way that passed through the government land. Id. at 316, 77 S. Ct. at 375. The government negligently allowed highly flammable dry grasses, brush, and other materials to accumulate, and sparks from a railroad engine ignited fires "on the right of way and adjoining land." Id. at 316, 77 S. Ct. at 375. After the fire was "under control" and "substantially out," certain spots continued to burn and smolder, but the government kept only a few men guarding the fire, despite strong winds and the presence of a "tinder-dry" accumulation of debris and dead logs. Id. at 316, 77 S. Ct. at 375. The winds blew sparks from the smoldering embers, and the fire "exploded" and spread as far as 20 miles. Id. at 316, 77 S. Ct. at 375. The forest fire destroyed the plaintiffs' property. Id. at 316–17, 77 S. Ct. at 375.

In Rayonier, the Supreme Court held that the government could be subject to suit under the FTCA in cases involving the negligence of government employees in controlling forest fires. Id. at 317–18, 77 S. Ct. at 375–76. In holding the government subject to the FTCA suit, the Supreme Court reasoned that "[t]here is no justification for this Court to read exemptions into the [FTCA] beyond those provided by Congress." Id. at 320, 77 S. Ct. at 377.

Rayonier is not controlling here for two reasons. First and foremost, Rayonier was not a discretionary-function case. The Supreme Court did not cite or address the discretionary-function exception in 28 U.S.C. § 2680(a). The government did not argue that the decisions of U.S. Forestry Branch officials fell within that discretionary-function exception. Instead, the government asserted threshold claims about the scope of the FTCA's waiver of sovereign immunity. The government argued that: (1) the FTCA "did not waive the United States' immunity from liability for the negligence of its employees when they act as public firemen"; (2) the FTCA imposes liability on the United States only where "governmental bodies have traditionally been responsible for the misconduct of their employees"; and (3) neither common law nor the law of the state of Washington "imposes liability on municipal or other local governments for the negligence of their agents acting in the ‘uniquely governmental’ capacity of public firemen." Id. at 318–19, 77 S. Ct. at 376. The Supreme Court's decision in Rayonier addresses the scope of the FTCA's waiver, not the discretionary-function exception to that waiver.

Section 2680 was enacted in June 1948, almost nine years before the Supreme Court decided Rayonier in January 1957. Act of June 25, 1948, ch. 646, § 2680(a), 62 Stat. 869, 984 (1948) (codified as amended at 28 U.S.C. § 2680 ). Although Congress has since amended portions of § 2680, the current language of the discretionary-function exception—as articulated in subsection (a)—is identical to the language Congress originally enacted. Compare id., with 28 U.S.C. § 2680(a).

Second, and in any event, when Rayonier was decided in 1957, immunity for the negligence of government employees performing discretionary actions was analyzed under a different framework than it is today. In fact, Gaubert's now-ubiquitous two-part test is absent from the Supreme Court's early jurisprudence in this area. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 68–69, 76 S. Ct. 122, 126–27, 100 L.Ed. 48 (1955) ; Dalehite v. United States, 346 U.S. 15, 41–42, 73 S. Ct. 956, 971, 97 L.Ed. 1427 (1953). Rather, at the time of Rayonier, federal courts applying early discretionary-function precedent often relied on a distinction between (1) planning or policymaking decisions—to which the discretionary-function exception generally applied—and (2) operational conduct—where the exception's applicability was less clear. See, e.g., White v. United States, 317 F.2d 13, 17 (4th Cir. 1963) ("The application of [a] policy to [an] individual case is an administrative decision at the operational level which if negligently done will make the Government liable ...."); United States v. Hunsucker, 314 F.2d 98, 103–04 (9th Cir. 1962) ("[T]he distinction referred to in Dalehite between decisions made on the planning level as against decisions made on the operational level has been accepted by several courts.").

It was not until at least 1984, well after Rayonier, that the Supreme Court began to synthesize its prior precedent and to articulate the two-part test that federal courts apply today. See Berkovitz, 486 U.S. at 535–37, 108 S. Ct. at 1958–59 ; United States v. Varig Airlines, 467 U.S. 797, 813–14, 104 S. Ct. 2755, 2764– 65, 81 L.Ed.2d 660 (1984) ; see also Gaubert, 499 U.S. at 322–24, 111 S. Ct. at 1273–74 (summarizing Varig Airlines and Berkovitz ). In doing so, the Supreme Court rejected the existence of any bright-line dichotomy between planning or policymaking decisions and operational decisions implied by its prior precedent. Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 ("A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policymaking or planning functions.... Discretionary conduct is not confined to the policy or planning level.").

Accordingly, Rayonier's holding does not resolve our inquiry as to whether, under Gaubert's two-part test, the discretionary-function exception in § 2680(a) protects the United States from FTCA liability for its alleged negligent failure to observe, monitor, and maintain a natural or controlled forest fire. Because no Supreme Court precedent resolves that issue, we next examine how our own Court has applied Gaubert's two-part test to government conduct.

Our colleague's dissent agrees Rayonier does not resolve our inquiry. Dissent at –––– ("Rayonier did not address the FTCA's discretionary function exception, so it does not control the precise issue before us."). At least one of our sister circuits also has concluded that Rayonier does not resolve whether the discretionary-function exception operates to bar suit for alleged negligence in failing to control a forest fire. Miller, 163 F.3d at 596–97 ("Because the Supreme Court in Rayonier did not have the question before it of whether the discretionary function exception applied, and because it did not apply the two-step analysis now followed, Rayonier does not control our decision.").
The dissent also cites Anderson v. United States, 55 F.3d 1379, 1384 (9th Cir. 1995), but that decision, although decided after Gaubert, also does not discuss at the all the discretionary-function exception to the FTCA's general waiver of sovereign immunity.

VI. ELEVENTH CIRCUIT PRECEDENT APPLYING GAUBERT

Our decision in Autery v. United States is the most instructive here because it involved an FTCA claim alleging negligent conduct by the U.S. National Park Service. 992 F.2d at 1524. As a result of the Park Service's alleged negligence, a rotten tree fell and struck a vehicle, injuring a passenger and killing the driver. Id. at 1524. There was no mandatory statute, regulation, or policy controlling the Park Service's process for inspecting and maintaining trees, so the first part of Gaubert's test was satisfied. Id. at 1530.

In applying the second part of Gaubert's test, our Court in Autery identified several policy considerations that justify reliance on the discretionary-function exception. The Park Service, we noted, likely needed to balance several competing interests, including "the risk of harm from trees in various locations, the need for other safety programs, the extent to which the natural state of the forest should be preserved, and the limited financial and human resources available." Id. at 1531. We refused to engage in any "judicial ‘second-guessing’ " of the Park Service's balancing of those interests. Id. (quoting Varig Airlines, 467 U.S. at 814, 104 S. Ct. at 2765 ). We concluded the choices involved in implementing a tree inspection plan were "grounded in social, economic and public policy," such that the discretionary-function exception applied. See id. at 1530–31. We therefore upheld the application of the exception to bar relief for the government's allegedly negligent failure to detect and remove hazardous, rotten trees in a national park. Id. at 1524, 1531.

Similarly, in Hughes v. United States, our Court applied the discretionary-function exception to bar recovery for the U.S. Postal Service's alleged negligent failure to provide adequate security and monitor its parking lot. 110 F.3d at 766, 768–69. Two assailants shot plaintiff Hughes who was in her car in a post office parking lot, and she sustained serious bodily injury. Id. at 766. We found no applicable statute, regulation, or policy that prescribed a specific course of conduct for the U.S. Postal Service to follow and thus concluded the first part of Gaubert's test was satisfied. Id. at 768.

In applying the second part of Gaubert's test, our Court in Hughes refused to second guess the resource-allocation decisions of the U.S. Postal Service employees, who were faced with deciding how best to "serve customers in a prompt, reliable, and efficient manner." Id. at 768–69. Citing to Gaubert, we recognized that "[d]ay-to-day management ... regularly requires judgment as to which of a range of permissible courses is the wisest." Id. at 768 (alteration in original) (quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 ). Post- Gaubert, the discretionary-function exception protects certain decisions even at the operational or day-to-day level. Id.; see also Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275. And as the Supreme Court has long recognized, the discretionary-function exception's scope extends beyond high-level policymakers and includes government officials at any rank exercising discretion. See Varig Airlines, 467 U.S. at 813, 104 S. Ct. at 2764. "[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Id. at 813, 104 S. Ct. at 2764.

In yet another case, Cranford v. United States, our Court applied the discretionary-function exception to decisions of U.S. Coast Guard officials in marking and choosing not to remove a submerged shipwreck. 466 F.3d 955, 956 (11th Cir. 2006). Importantly, the government had, years previously, deliberately sunk the ship in question to serve as a breakwater. Id. at 957. The Coast Guard placed a marker to signal the presence of the shipwreck, but the plaintiffs, whose motor boat struck the submerged ship, alleged the marking was inadequate. Id. at 956–57.

In Cranford, our Court concluded the Coast Guard's decisions related to the manner of marking the submerged shipwreck inherently involved "elements of judgment or choice." Id. at 959. We reasoned that "decisions in marking a wreck involve social, political, and economic policy considerations, such as taking into account the knowledge and customs of international mariners, balancing the needs of pleasure and commercial watercraft, and evaluating agency resource constraints." Id. at 960. We acknowledged that financial considerations, on their own, do not necessarily render a decision one that is "susceptible to policy analysis," since "budgetary constraints are almost always important to government decisions." Id. (quotation marks omitted) (quoting Ochran, 117 F.3d at 502 ). But as we noted, there were considerations at play beyond financial ones, and even the resource-allocation considerations were not wholly financial in nature. Id. (noting that the relevant concerns about "resource constraints ... include but are not limited to financial concerns").

In the past, our Court also has identified instances in which a government employee's exercise of judgment or choice is not "susceptible to policy analysis." The most notable case is Swafford v. United States, which involved the government's alleged failure to properly maintain a staircase on a campground owned and operated by the U.S. Army Corps of Engineers. 839 F.3d 1365, 1367–68 (11th Cir. 2016). Plaintiff Swafford walked from Campsite 23, where he was staying on the campground, to Campsite 26. Id. at 1367. He then fell and injured himself while descending the site's wooden stairway. Id. The Corps had contracted with a third party, Anderson Construction Company, "to provide all maintenance, repair, and operations of facilities, vehicles, and equipment" on the campground. Id. at 1368 (quotation marks omitted). The Corps's contract specifically provided for Anderson's "complete inspection, maintenance, and repair of all campsites and stairways necessary to keep them in safe working condition." Id. (quotation marks omitted).

Plaintiff Swafford alleged that the Corps "negligently and carelessly caused, allowed, and/or permitted a hazardous condition to exist and remain as to the steps at Campsite 26." Id. (quotation marks omitted). He further alleged that any negligence on Anderson's part was imputable to the Corps and that the Corps had "ratified Anderson's negligent failure to inspect and/or repair the steps at Campsite 26 ... by not requiring the repair of the defective and hazardous steps." Id. (quotation marks omitted).

In Swafford, our Court determined that, under the first part of Gaubert's test, the maintenance of the stairs involved the exercise of judgment and discretion, as there was no evidence that a federal statute, regulation, or policy specifically required that the Corps inspect, maintain, and repair the previously built stairways at Campsite 26. Id. at 1370. Under the second part of Gaubert's test, however, our Court rejected the idea that the Corps could simply choose not to maintain the stairs in a safe condition after explicitly undertaking responsibility for doing so, noting that "the Corps's decision to build and ‘operate’ a staircase on the Campground gives rise to a[n] ... obligation to inspect and maintain that staircase in a safe condition." Id. at 1371. While the Corps's initial decision to build and undertake responsibility for maintaining the staircase was a discretionary judgment, the Corps's subsequent failure to maintain the staircase in a safe condition was not a permissible exercise of policy judgment. Id. at 1371–72.

The Swafford Court acknowledged that the Supreme Court had disavowed any bright-line discretionary-function rule that relies on "a dichotomy between ‘discretionary functions’ and ‘operational functions.’ " Id. at 1371. But plaintiff Swafford's argument, this Court reasoned, did not rely on any such distinction; rather, Swafford argued that "once the Corps exercised its discretion to build and maintain the stairs, failure to maintain them in a safe condition [was] simply not a permissible exercise of policy judgment." Id. at 1371–72. Agreeing with Swafford, our Court noted that the Corps's contract with Anderson "specifically required Anderson to inspect, maintain, and repair the Campground's stairways as necessary to keep them in safe working condition." Id. at 1372 (quotation marks omitted). As a result, "[w]hatever range of choice the Corps may have had in supervising Anderson, ‘choosing’ to ‘accept’ a dangerously unsafe stairway [was] simply not a permissible exercise of discretion any more than ... choosing to drive carelessly on official business." Id.

With this background in mind, we now turn to the challenged conduct in this case.

VII. APPLYING GAUBERT'S SECOND PART

Again, Plaintiffs do not contend that, under the first part of Gaubert's test, the U.S. Forestry Branch's challenged conduct involved no "element of judgment or choice." See Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273 (quotation marks omitted). Nor do they challenge the U.S. Forestry Branch's decision to initiate the controlled burn. Our inquiry, then, is whether, under the second part of Gaubert's test, the U.S. Forestry Branch employees' choices and decisions as to how to observe, monitor, and maintain the burn are "susceptible to policy analysis." Id. at 325, 111 S. Ct. at 1275. In other words, are those choices and decisions made in executing the controlled burn necessarily "grounded in social, economic, and political policy." Gaubert, 499 U.S. at 323, 111 S. Ct. at 1273. We conclude that they are.

As the Defendant points out, numerous policy considerations come into play regarding whether and to what extent a U.S. Forestry Branch employee or official might take a particular action during the monitoring or maintaining a controlled burn. For example, an official might need to consider and balance the following factors in planning and during the controlled burn: (1) the safety of U.S. Forestry Branch personnel, as well as members of the public; (2) what specific level of safety measures to take during the controlled burn, such as how many employees and how much equipment to use and where to use it in monitoring the execution of the controlled burn; (3) the allocation of financial resources for fire suppression costs; (4) the need to encourage ecological development; (5) potential risk to private and public property; and (6) how best to balance the need for the controlled burn against the inherent risk to persons and property. Additionally, because the controlled burn here took place in close proximity to a U.S. military base, Forestry Branch employees had to weigh additional important policy considerations related to military personnel and operations. See OSI, Inc. v. United States, 285 F.3d 947, 953 (11th Cir. 2002) ("The nature of the military's function requires that it be free to weigh environmental policies against security and military concerns.").

These are precisely the sort of social, economic, political, and public policy concerns our Court has recognized as justifying the applicability of the discretionary-function exception. See, e.g., Cranford, 466 F.3d at 960–61 (acknowledging federal officials' need to take into account the interests of various private actors, along with agency resource constraints, both personal and financial); Hughes, 110 F.3d at 768–69 (recognizing the need to balance safety concerns with the limited resources available and noting that "[d]ay-to-day management ... regularly requires judgment as to which of a range of permissible courses is the wisest" (alteration in original) (quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 )); Autery, 992 F.2d at 1531 (accepting the Park Service's need to balance environmental and safety concerns, as well as the limited financial and human resources available). Given these numerous and complex policy implications, the conduct at issue here is far afield from the example used in Swafford of an employee simply "choosing" to carelessly drive a car on official business. See Swafford, 839 F.3d at 1372.

Notably, two of our 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) (reasoning as to the second part of Gaubert's test, that a Forest Service decision to only partially suppress a wildfire required a "balancing of the needs to protect private property, ensure firefighter safety, reduce fuel levels, and encourage natural ecological development," and that "[t]he nature of the [Forest Service's] actions in fighting the ... [f]ire are susceptible to a policy analysis grounded in social, economic, or political concerns"); Miller v. United States, 163 F.3d 591, 595–96 (9th Cir. 1998) (concluding, as to the second step in Gaubert's test, that "the decision regarding how to best approach the ... fire ... required consideration of fire suppression costs, minimizing resource damage and environmental impacts, and protecting private property," as well as safety, and that "the Forest Service's decision is susceptible to a policy analysis grounded in social, economic, or political concerns").

It is also true, as Plaintiffs point out, the district courts in these cases had before them evidence of particular policy considerations that were at play. But as we have emphasized, under the second part of Gaubert's test, we are not concerned with the subjective intent of the government employees who oversaw the burn or whether those employees actually weighed particular policy considerations. See Ochran, 117 F.3d at 500 ; Autery, 992 F.2d at 1530–31 ("Gaubert ... cautions against conducting a fact-based inquiry into the circumstances surrounding the government actor's exercise of a particular discretionary function ...."). The inquiry is not fact-based; rather our concern is whether the nature of the challenged decision, in an objective or general sense, is "susceptible to policy analysis." See Hughes, 110 F.3d at 768 (quotation marks omitted).

True, these two decisions involved naturally occurring fires as opposed to controlled burns initiated by the U.S. Forestry Branch. But this distinction does not meaningfully affect our Gaubert analysis. As Plaintiffs themselves concede, there is no contention here that the U.S. Forestry Branch acted negligently, or otherwise improperly, in exercising its discretion to start the fire in the first place. And once the fire was burning, the U.S. Forestry Branch employees tasked with controlling the fire were faced with the same competing policy interests and considerations recognized by our sister circuits as satisfying the second step in Gaubert's two-part test. The origin of the fire is therefore largely irrelevant to the precise issue before us: whether the government's measures and conduct in observing, monitoring, and maintaining of a forest fire are "susceptible to policy analysis." See Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275.

Plaintiffs rely heavily on our statement in Swafford that "once the Corps exercised its discretion to build and maintain the stairs, failure to maintain them in a safe condition [was] simply not a permissible exercise of policy judgment." Swafford, 839 F.3d at 1372. Plaintiffs argue that, similarly, once the U.S. Forestry Branch "exercised its discretion to conduct [the] controlled burn and to observe, monitor and maintain it, the [government's negligent] failure to maintain the burn in a safe manner, within the confines and/or perimeters as intended, is simply not a permissible exercise of policy judgment." They insist that "choosing not to control a prescribed burn is not a permissible exercise of discretion."

At bottom, Plaintiffs' argument effectively collapses the discretionary-function exception into a question of whether the government was negligent, implying that the mere presence of alleged negligence can defeat the exception. But negligence is irrelevant at this point in the Gaubert inquiry. Only after concluding that the government has waived its sovereign immunity would a court consider whether a particular government employee negligently executed the controlled burn. Framing the question as the government's negligent failure in executing the controlled burn thus begs the question. The relevant conduct at issue here is the U.S. Forestry Branch's planning and policy decisions about what measures and conduct to take during the controlled burn itself, not their ultimate negligent acts during the controlled burn.

Further, Plaintiffs' analogy to Swafford is unpersuasive because it assumes maintaining a staircase and monitoring a fire are analogous activities with similar risks and attendant policy concerns. This is not the case. It is one thing to say that government officials may decline to maintain an already built and static set of stairs in a safe condition, where the alleged policy considerations essentially come down to a determinate budget allocation and where the government has hired a subcontractor to maintain the stairs in good working condition. Here, in contrast, and as discussed above, myriad other factors come into play when dealing with an ongoing and quickly evolving forest fire—whether natural or controlled—such as those listed above and recognized by two Courts of Appeals. See Hardscrabble Ranch, 840 F.3d at 1222–23 ; Miller, 163 F.3d at 596. Controlled burns are exponentially more complicated, dangerous, and unpredictable than repairing a fixed, static set of stairs. Controlled burns require the consideration and weighing of significantly more factors and elements. The conduct and policy judgment in Swafford are materially different from the conduct and judgment in this case.

Plaintiffs do not address head-on the existence or importance of the social, economic, political, or public policy concerns identified by the Defendant. The necessary implication of Plaintiffs' argument is that Swafford stands for the broad proposition that, wherever the government "exercise[s] its discretion" to affirmatively undertake a particular task, the discretionary-function exception cannot apply to except the government from liability for any subsequent negligence. But to read Swafford as broadly as Plaintiffs suggest would come close to resurrecting the strict planning-versus-operational dichotomy rejected by the Supreme Court. See Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 ; see also Cranford, 466 F.3d at 959 ("The [plaintiffs] would have us rule that the discretionary function exception does not apply to the execution of a governmental decision, but this argument merely restates the operational conduct distinction rejected in Gaubert.").

Moreover, that reading of Swafford does not square either with our prior precedent applying the discretionary-function exception or with other circuits' decisions applying the exception to the monitoring and maintenance of naturally occurring fires. After all, even where a forest fire begins naturally, the government can still be said to have "exercised its discretion" to undertake the task of "observ[ing], monitor[ing,] and maintain[ing]" the fire. See Hardscrabble Ranch, 840 F.3d at 1222–23 ; Miller, 163 F.3d at 596. The same can be said for, say, the government's decision to maintain and remove rotten trees in a national park, Autery, 992 F.2d at 1524, or to operate a post office it elected to place in a particular area, Hughes, 110 F.3d at 766, or to mark the location of a submerged ship it deliberately sank, Cranford, 466 F.3d at 956–57.

We assume, as we must at this stage, that U.S. Forestry Branch officials were negligent in their observation, monitoring, and maintenance during the controlled burn itself as alleged in the complaint. But that 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. See Hughes, 110 F.3d at 767 n.1 ("Our concern under the discretionary function exception is not whether the allegations of negligence are true; instead, our concern is whether the nature of the conduct involves judgment or choice and whether that judgment is of the kind that the exception was designed to protect."). The government's decisions about how to monitor and maintain a controlled burn are shielded from judicial second-guessing by the discretionary-function exception to the FTCA. Accordingly, we conclude that Plaintiffs failed to "allege a plausible claim that falls outside the discretionary function exception." See Douglas, 814 F.3d at 1276. Because the discretionary-function exception applies here, the United States has not unequivocally waived its sovereign immunity, and the district court therefore lacked jurisdiction over Plaintiffs' FTCA claims against Defendant United States. See Fed. R. Civ. P. 12(b)(1) ; Zelaya, 781 F.3d at 1322.

VIII. DISSENT

In his dissent, our colleague concludes: (1) "I do not think that we can hold, on a facial challenge to the complaint, that the discretionary function exception necessarily applies"; (2) "[t]he district court should have denied the government's facial challenge, permitted discovery, and decided the applicability of the discretionary function exception at summary judgment"; and (3) "[t]he majority has been too quick in pulling the trigger on the applicability of the discretionary function exception." Dissent at ––––, ––––, ––––. With all due respect, the dissent ignores the actual factual and procedural background of the appeal before us in four material ways. First, as the Majority Opinion already notes in footnote 2, the Plaintiffs on appeal do not argue that they were entitled to take any discovery prior to the district court's ruling on the Defendant's motion to dismiss. While Plaintiffs suggested discovery in the district court, Plaintiffs do not raise that claim on appeal. The dissent does not dispute that fact.

As discussed, supra n.8, the dissent agrees that the Supreme Court's 1957 Rayonier decision does not control because it did not discuss the discretionary-function exception as all. As a result, there is no precedent from the Supreme Court or our Court that resolves the Gaubert step-two issue before us as to forest fires or controlled burns.

Second, Plaintiffs also do not challenge the district court's ruling on the first part of Gaubert's test. They do not argue, nor have they ever argued, that the U.S. Forestry Branch officials responsible for the controlled burn had no room to exercise "judgment or choice" in their decisions about how they observed, monitored, and maintained the burn. Accordingly, in this particular appeal, our analysis is limited to only the second part of Gaubert's test: whether "the nature of the actions taken" by the U.S. Forestry Branch officials as to the controlled burn were "susceptible to policy analysis." Majority Op. at –––– (quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 ); see also Autery, 992 F.2d at 1530–31.

Third, the Plaintiffs' complaint, their response to the Defendant's motion to dismiss in the district court, and their brief on appeal nowhere cite the two documents attached as an 84-page appendix to the dissent. Those documents are published by the National Wildfire Coordinating Group (NWCG) and are entitled: (1) the July 2017 "Interagency Prescribed Fire Planning and Implementation Procedures Guide"; and (2) the March 2018 "Prescribed Fire Plan Template." The Plan and Guide documents describe the NWCG as follows:

The National Wildfire Coordinating Group (NWCG) provides national leadership to enable interoperable wildland fire operations among federal, state, tribal, territorial, and local partners. NWCG operations standards are interagency by design; they are developed with the intent of universal adoption by the member agencies. However, the decision to adopt and utilize them is made independently by the individual member agencies and communicated through their respective directives systems.

(emphasis added). The dissent does not indicate whether the U.S. Forestry Branch has adopted or utilized the NWCG's standards, in whole, in part, or not at all. The record does not tell us as no one cited, much less discussed, the Plan or the Guide.

The dissent argues that, "[g]iven the Plan and the Guide, it is difficult to understand how or why the majority believes that all government conduct associated with a prescribed burn is shielded by the discretionary function exception." Dissent at –––– – ––––. But again, what the dissent fails to acknowledge is that Plaintiffs do not challenge the district court's ruling on the first part of Gaubert's test. Indeed, the Plaintiffs have never pointed to any "federal statute, regulation, or policy specifically prescribe[ing] a course of action" the Forestry Branch officials were required to follow in conducting the controlled burn. Majority Op. at –––– (quoting See Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273 ). Nor do the Plaintiffs claim they should have been allowed discovery to find any potentially applicable directive that specifically prescribed a course of conduct that the U.S. Forestry Branch employees were bound to follow in observing, monitoring, and maintaining the burn. The Plaintiffs have not done so because they do not challenge on appeal the district court's conclusion that the U.S. Forestry Branch's decisions as to how to observe, monitor, and maintain the fire involved an element of judgment or choice. Fourth and finally, because the narrow appellate issue before us involves only the second part of Gaubert's test, our inquiry is only whether the nature of the decisions made by the U.S. Forestry Branch—even assuming officials were negligent in deciding how to observe, monitor, and maintain the controlled burn— were "susceptible to policy analysis." Majority Op. at –––– (quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 ). The documents attached to the dissent, if anything, confirm the Majority's conclusion that social, economic, political, and public policy considerations are all at play in what actions the U.S. Forestry Branch takes in an effort to observe, monitor, and maintain a controlled burn. The Plan and Guide address funding, safety, personnel, resources, environmental concerns, and numerous other public policy issues.

The dissent perhaps begins to educate future plaintiffs in FTCA–controlled burn cases about the first part of Gaubert's test and the need to look for potential directives that may specifically prescribe a course of conduct, to ascertain whether such directives were adopted by a federal agency at some point relevant to the case, and to argue that those directives removed the range of discretionary choices available to the U.S. Forestry Branch at the first part of Gaubert's test. However, the dissent fails to take into account that the instant issue on appeal involves only the second step in Gaubert's two-part test and whether the inherent nature of the actions taken were "susceptible to policy analysis." Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275. Pursuant to precedent, the Majority has looked at "the nature of" the challenged actions in an objective or general sense and concluded they are inherently grounded in social, economic, political, and public policy concerns.

IX. CONCLUSION

For the foregoing reasons, we affirm the district court's dismissal of Plaintiffs' FTCA complaint for lack of subject matter jurisdiction.

AFFIRMED.

JORDAN, Circuit Judge, dissenting:

The government may ultimately be right that the negligence claims of Foster Logging Inc. and American Guarantee & Liability Insurance Company will be barred by the discretionary function exception to the Federal Torts Claims Act. See 28 U.S.C. § 2680(a). But I do not think that we can hold, on a facial challenge to the complaint, that the discretionary function exception necessarily applies.

I

As a general principle, it is well settled that the government can be liable under the FTCA for the negligence of its employees in fighting or controlling a fire. See Rayonier Inc., v. United States , 352 U.S. 315, 319–20, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). In Rayonier , a fire started on government-owned land and spread for 20 miles, destroying the plaintiff's property. See id. at 316–17, 77 S. Ct. 374. The complaint alleged that the government had been negligent by, among other things, "not properly suppressing the spot fires" and "failing to quench and prevent the spread of the fire when it was under control." Id. at 317, 77 S. Ct. 374. The district court dismissed the complaint on the ground that the government could not be sued for the Forest Service's negligence in combating a fire, and the Ninth Circuit affirmed. See id. The Supreme Court reversed. See id. at 321, 77 S. Ct. 374. Explaining that the FTCA was enacted to help share the burden of injured parties who are left "destitute or grievously harmed" by the government's negligence, the Court held that the FTCA allowed the government to be sued for its employees' negligence in managing a fire, and vacated the dismissal of the complaint. See id.

Rayonier did not address the FTCA's discretionary function exception, so it does not control the precise issue before us. But it does show that there are scenarios in which the government can be sued under the FTCA for its negligence in failing to control a fire. That reality is confirmed by later cases like Anderson v. United States , 55 F.3d 1379, 1384 (9th Cir. 1995) (holding that the FTCA supported a negligence claim against the government for failing to manage a prescribed burn in a national forest). And that reality, as explained below, matters.

II

Our pleading rules require only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and the Supreme Court has told us that "they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby , 574 U.S. 10, 11, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014). To survive a motion to dismiss, therefore, a complaint need only "plead facts sufficient to show that [the] claim has substantive plausibility." Id. at 12, 135 S.Ct. 346.

"[A] motion to dismiss for lack of subject matter jurisdiction pursuant to [ Rule] 12(b)(1) can be based upon either a facial or factual challenge to the complaint." McElmurray v. Consol. Gov't of Augusta-Richmond Cty. , 501 F.3d 1244, 1251 (11th Cir. 2007). If the challenge is facial, the district court must afford the plaintiff "safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised." Id. The court need only "look and see if the plaintiff's complaint has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [the] complaint are taken as true for the purposes of the motion." Houston v. Marod Supermarkets, Inc. , 733 F.3d 1323, 1335–36 (11th Cir. 2013) (citation and internal quotation marks omitted).

A

The "discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment." Berkovitz v. United States , 486 U.S. 531, 539, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). It is inapplicable "if a government policy specifically prescribes an action and that policy is violated." Hart v. United States , 894 F.2d 1539, 1546 (11th Cir. 1990). See also Douglas v. United States , 814 F.3d 1268, 1273 (11th Cir. 2016) (laying out the two-part test for the discretionary function exception).

Where, as here, the government mounts a facial challenge to the complaint based on the discretionary function exception, the plaintiff need only "allege a plausible claim that falls outside the ... exception." Douglas , 814 F.3d at 1276. But we have also held that the government has the burden of "production of the policy considerations that might influence the challenged conduct." Ochran v. United States , 117 F.3d 495, 504 n.4 (11th Cir. 1997).

B

As noted earlier, the FTCA generally allows claims against the government for negligence in failing to control a fire. See Rayonier , 352 U.S. at 319–20, 77 S.Ct. 374 ; Anderson , 55 F.3d at 1384. The complaint here easily pled a claim covered by the FTCA, as the plaintiffs alleged that the government had "conducted a [prescribed] burn in area B-20" and then "negligently failed to observe, monitor, and maintain" that burn, "allowing fire to escape area B-20" and causing damage to Foster Logging's equipment in area B-19.5. See D.E. 1 at 3 ¶ 12.

The Supreme Court made clear in United States v. Gaubert , 499 U.S. 315, 325 n.7, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), that not all discretionary acts are covered by the discretionary function exception. "There are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception because these acts cannot be said to be based on the purposes that the regulatory regime seeks to accomplish." Id. The majority assumes that there is no way that the government's alleged negligence can fall outside the discretionary function exception, and makes the incredibly broad statement that the "government's decisions about how to monitor and maintain a prescribed burn are shielded from second-guessing by the discretionary function exception to the FTCA." Maj. Op. at ––––. That statement is not only unnecessarily broad, it is demonstrably mistaken.

The majority's assertion that all conduct relating to a prescribed burn is shielded by the discretionary function exception is wrong. Prescribed fires are highly regulated, and federal agencies involved with prescribed burns (including the National Park Service, the U.S. Fish and Wildlife Service, the Bureau of Land Management, and Bureau of Indian Affairs, and the U.S. Forest Service) must adhere to the "minimum mandates" articulated in the Prescribed Fire Plan. See Robert H. Palmer III, A New Era of Federal Prescribed Fire: Defining Terminology and Properly Applying the Discretionary Function Exception , 2 Seattle J. Envtl. L. 279, 310 (2012).

The current version of the Plan, published by the National Wildfire Coordinating Group, is the March 2018 NWCG Prescribed Fire Plan Template, PMS 484-1 (found at www.nwcg.gov/publications/484-1 [last visited July 27, 2020] ). The Plan is now a supplement to another document, the July 2017 Interagency Prescribed Fire Planning and Implementation Guide, PMS 484 (found at www.nwcg.gov/sites/default/files/publications/pms484.pdf [last visited July 27, 2020] ). The Guide, also published by the NWCG, is a comprehensive 53-page document which sets out, among other things, "standardized procedures" for the "planning and implementation of prescribed fire." Id. at 1. It describes "what is minimally acceptable for prescribed fire planning and implementation." Id. (emphasis in original). Given the Plan and the Guide, it is difficult to understand how or why the majority believes that all government conduct associated with a prescribed burn is shielded by the discretionary function exception. See Palmer, Prescribed Fire , 2 Seattle J. Envtl. L. at 315 (arguing that, because a "prescribed fire plan and implementation is not discretionary," the "discretionary function exception should not bar a claim for damages resulting from a prescribed fire").

Copies of the Plan and the Guide are attached as Appendices A and B. We can take judicial notice of the Plan and the Guide as agency documents or reports under Federal Rule of Evidence 201(b)(2). See Dimanche v. Brown , 783 F.3d 1204, 1213 n.1 (11th Cir. 2015) ; Terrebonne v. Blackburn , 646 F.2d 997, 1000 n.4 (5th Cir. 1981).

C

On a facial challenge, we are required to view the complaint in the light most favorable to the plaintiffs and draw all reasonable inferences in their favor. Under this standard, the complaint should not have been dismissed.

Assume, for example, that the government decided as part of its prescribed burn plan to dig a trench at the boundary of area B-20 in order to prevent the fire from spreading to area B-19.5. Assume further that, once that decision was made and communicated to the employees who were assigned the task of digging the trench, those employees simply forgot to do the job or dug the trench in the wrong place. In other words, they were negligent in carrying out the policy decision that had been made. Although the discretionary function exception would shield the initial decision to dig the trench as a way to contain the fire, it would not immunize the negligence of the employees in carrying out that directive. Such negligence would not involve an element of judgment or choice, nor would it be grounded in considerations of public policy.

The majority proclaims that the government employees involved with the prescribed burn here "were faced with the same competing policy interests and considerations recognized by our sister circuits[.]" Maj. Op. at ––––. But unless the majority has a crystal ball into the past, I do not see how it can make this factual assertion.

A district court case, Florida Department of Agriculture & Consumer Servs. v. United States , 2010 WL 3469353, at *4 (N.D. Fla. Aug. 30, 2010), is instructive in this regard. In that case, which likewise involved an FTCA claim based on the government's alleged negligence in carrying out a prescribed burn, the district court denied the government's motion for summary judgment. See id. at *5. As relevant here, the court held that the discretionary function exception did not apply because the government had admitted during discovery that it had not followed the prescribed burn plan. See id. at *4 (explaining that the evidence showed a "clear disobedience to mandates that are not discretionary"). And it explained that, although the government "may have had discretion as to the analysis conducted within the Burn Plan, [it] had no judgment or choice whether to complete a Plan and then follow it once approved." Id.

Florida Department of Agriculture , moreover, is not an outlier. In other FTCA cases, our sister circuits have reversed dismissals of complaints when it was not clear that the challenged action was covered by the discretionary function exception. See, e.g., Rich v. United States , 811 F.3d 140, 147 (4th Cir. 2015) (reversing the district court's dismissal of an FTCA complaint pursuant to the discretionary function exception because, even though prison officials had discretion in instituting a pat-down policy, the way that the pat-downs were conducted was not discretionary and could have been completed negligently); Palay v. United States , 349 F.3d 418, 432 (7th Cir. 2003) (reversing dismissal of FTCA complaint by a prisoner, who alleged that he was injured in a gang fight due to the negligence of prison employees, because without discovery it was impossible to tell whether the discretionary function exception applied: "[T]he government presumes that the circumstances ... were the result of discretionary decisions by prison officials charged with making such policy choices—for example, judgments about housing inmates affiliated with rival gangs in the same housing unit.... Certainly that is possible. But one can also imagine that negligence having nothing whatsoever to do with discretionary judgments that enabled the fight to break out.").

III

In Swafford v. United States , 839 F.3d 1365 (11th Cir. 2016), the plaintiff sued the government under the FTCA for injuries he suffered when he fell down a set of stairs at a federally-owned campground. See id. at 1368. The district court granted summary judgment in favor of the government on several grounds, including the discretionary function exception. See id. We reversed that aspect of the district court's order. See id. at 1372. Because the plaintiff "submitted no evidence that a federal statute, regulation, or policy specifically requires the inspection, maintenance, and repair of the stairs" at the campground, we concluded that, on the record before us, "deciding whether to engage in these tasks involves an element of judgment or choice." Id. at 1370. But we ruled that this judgment was not the sort of discretionary choice that the discretionary function exception was meant to shield. We explained that the government's decision to build and operate a staircase on the campground gave rise to an obligation to "inspect and maintain that staircase in a safe condition." Id. at 1371. Indeed, the government's contract with a construction company required the company to inspect, maintain, and repair the campground's stairways as needed to keep them in a safe working condition. See id. at 1372.

As I read Swafford , it supports reversal of the district court's dismissal order. The plaintiffs' failure here to point to a mandatory regulation or directive in their complaint is not fatal. As set out earlier, the NWCG's Plan and Guide provide minimal requirements that federal agencies must follow with respect to prescribed burns. Moreover, under Swafford it is possible that the government's decision to carry out a prescribed burn in Area B-20 gave rise to an obligation to limit its spread.

In my view, it is inappropriate to require the plaintiffs to specifically allege in their complaint exactly what type of negligence the government committed. First, the Supreme Court has said that this sort of detailed pleading is unnecessary. See Johnson , 574 U.S. at 11, 135 S.Ct. 346. Second, we know that the "facial plausibility" standard "is not akin to a ‘probability requirement[.]’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). Third, the government has the burden of production with respect to the policies that might trigger the discretionary function exception. See Ochran , 117 F.3d at 504 n.4. Fourth, as the Seventh Circuit has aptly noted, the "government, not the plaintiff, will generally have superior access to the information that might trigger" the discretionary function exception. See Bunch v. United States , 880 F.3d 938, 942 (7th Cir. 2018).

The district court should have denied the government's facial challenge, permitted discovery, and decided the applicability of the discretionary function exception at summary judgment. Where the government's motion to dismiss is really based on "factual contentions that go right to the merits of the case," the district court should "find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case." Douglas , 814 F.3d at 1275. At the very least, the district court should have ordered limited jurisdictional discovery to develop the record so it could determine whether the government's alleged conduct falls within the discretionary function exception. As things stand, "we lack a developed record that would permit us to decide as a matter of law whether the actions that allegedly resulted in [the fire escaping to area B-19.5] reflected the exercise of discretionary policy judgments." Palay , 349 F.3d at 432. IV

Our sister circuit courts have allowed discovery when it is unclear whether the discretionary function exception applies. We should follow suit here. See Snyder & Assocs. Acquisitions LLC v. United States , 859 F.3d 1152, 1162 (9th Cir. 2017) (reversing the district court's dismissal of an FTCA complaint so that the parties could conduct discovery on the applicability of the discretionary function exception); Ignatiev v. United States , 238 F.3d 464, 466–67 (D.C. Cir. 2001) (explaining the difficulties that an FTCA plaintiff faced in drafting a complaint, and concluding that discovery was the only tool he had to advance his claim).

As I acknowledged at the beginning, it may well be that the plaintiffs' claims will be barred by the discretionary function exception. The government might be correct that the conduct at issue here was "influenced by considerations such as the promotion of military training and operations activities at Ft. Stewart, the conservation and rehabilitation of its natural resources, and the risk of harm to military personnel and private citizens." Br. for Appellee at 13. But we can only make that decision at summary judgment on a fully developed record, and not on a facial challenge to the complaint where we must draw all reasonable inferences in favor of the plaintiffs.

That is how things played out in Hardscrabble Ranch, LLC v. United States , 840 F.3d 1216 (10th Cir. 2016), a case involving not a prescribed burn but the Forest Service's alleged negligence in fighting a fire started by lightning. The Tenth Circuit affirmed the district court's grant of summary judgment to the government based on the discretionary function exception because discovery revealed that (1) the Forest Service's "decision checklist" conferred discretion on decisionmakers as to what factors to consider, and what steps to take, in fighting a fire, and (2) the "nature" of the Forest Service's actions in fighting the fire were "susceptible to a policy analysis grounded in social, economic, or political concerns." Id. at 1220–21, 1222–23. Accord Miller v. United States , 163 F.3d 591, 597 (9th Cir. 1998) (affirming summary judgment in favor of the government on FTCA claim relating to failure to control fires started by lightning—discretionary function exception applied because the "decision how to allocate resources in a multiple fire situation involved discretion and the consideration of competing economic and social policies").

The majority has been too quick in pulling the trigger on the applicability of the discretionary function exception. With respect, I dissent.

The majority says that I am educating future FTCA plaintiffs in cases involving the government's alleged negligence in prescribed burns. My aim is different—to hopefully persuade other courts to avoid the mistakes the majority makes today.
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Appendix A

Appendix B


Summaries of

Foster Logging, Inc. v. United States

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Aug 24, 2020
973 F.3d 1152 (11th Cir. 2020)
Case details for

Foster Logging, Inc. v. United States

Case Details

Full title:FOSTER LOGGING, INC., AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY, as…

Court:UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Date published: Aug 24, 2020

Citations

973 F.3d 1152 (11th Cir. 2020)

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