CARL ANDERSON, an individual; v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CARL ANDERSON, an individual; et al.,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
UNITED STATES ARMY; UNITED
STATES DEPARTMENT OF DEFENSE,
Defendants.
No. 19-35574
D.C. No. 1:18-cv-03011-SAB
MEMORANDUM
*
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, Chief District Judge, Presiding
Argued and Submitted October 7, 2020
Seattle, Washington
FILED
OCT 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,
**
District
Judge.

Plaintiffs are a group of landowners who sued the United States pursuant to
the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., after a brush fire
ignited during an Army training exercise at the Yakima Training Center. The fire
spread off base and burned for several days over thousands of acres, damaging
plaintiffs’ property.
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The government moved to dismiss pursuant to the FTCA’s discretionary
function exception, 28 U.S.C. § 2680(a). In response to the government’s motion,
plaintiffs sought additional discovery. The district court allowed limited additional
written discovery but denied plaintiffs’ request to take depositions. The district
court granted the government’s motion to dismiss, concluding that Commander
Mathews’ order establishing conditions under which the training could proceed
was oral, ambiguous, and uncommunicated. Plaintiffs appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court’s
judgment.
* *
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
1
The parties are familiar with the facts and we recount them only as
necessary to resolve the issues on appeal.
2

We review the district court’s denial of jurisdictional discovery for abuse of
discretion. Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). We will
not disturb the district court’s ruling except upon the “clearest showing that the
dismissal resulted in actual and substantial prejudice to the litigant.” Abrego
Abrego v. Dow Chem. Co., 443 F.3d 676, 691 (9th Cir. 2006) (citation and internal
quotations omitted).
1.Plaintiffs first argue the district court erred by denying certain
additional written discovery. Considerable written discovery was produced by the
government, but the plaintiffs argue on appeal they were entitled to additional
written discovery concerning: (1) fire suppression policies and actions; (2) fire
prevention information; (3) information about the Army’s failure to warn; and (4)
additional internal policies. We conclude the district court did not abuse its
discretion by denying additional written discovery. Information about fire
suppression policies and fire prevention was already available in the record.
Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (denying request
for additional discovery when “further discovery would not demonstrate facts
sufficient to constitute a basis for jurisdiction” (citation and internal quotations
omitted)). The complaint does not allege a claim for failure to warn nor do
plaintiffs argue the government has a duty to provide warnings of training
3

exercises. Finally, the witness statements the plaintiffs refer to do not support the
existence of additional undisclosed internal policies.
2.Plaintiffs next argue the district court abused its discretion by denying
their request to take the depositions of several individuals, including Commander
Mathews, Senior Range Officer (SRO) Holman, Colonel Kuth, and a Fed. R. Civ.
P. 30(b)(6) deponent. Likewise, plaintiffs argue the district court abused its
discretion by declining to hold an evidentiary hearing.
Before our court, the government conceded that the oral nature of
Commander Mathews’ order did not render it insufficiently specific for purposes
of the first step in the discretionary function analysis. We note that Commander
Mathews described his order as “specific” in the first statement he gave to Colonel
Kuth during the administrative investigation after the fire. Discrepancies in the
witness statements also raise questions regarding the weather and conditions
updates Commander Mathews received on the day of the fire. Because the record
contains significant inconsistencies between the statements given by the most
critical witnesses, plaintiffs are entitled to an opportunity to cross-examine
Commander Mathews, SRO Holman and Colonel Kuth. An evidentiary hearing
will likely be required to resolve the issues presented by the government’s motion.
On remand, we leave it to the district court to determine whether depositions of
4

Commander Mathews, SRO Holman, Colonel Kuth, or a government witness
under Fed. R. Civ. P. 30(b)(6) would be helpful to prepare for an evidentiary
hearing.
REVERSED AND REMANDED.
Appellee to bear costs.
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