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refusing to consider allegations first raised in the plaintiff's response brief
Summary of this case from Woodward Stuckart, LLC v. United StatesOpinion
No. 10-35007.
Argued and Submitted December 7, 2010.
Filed December 22, 2010.
Reginald Perry, Portland, OR, Adriane Parsons, Munger Chadwick, P.L.C., Tucson, AZ, for Plaintiff-Appellant.
Kevin C. Danielson, Esquire, Office of the U.S. Attorney, Portland, OR, for United States of America, United States Forest Service.
Denise Gale Fjordbeck, Assistant Attorney General, AGOR — Office of the Oregon Attorney General, Salem, OR, for State of Oregon, Oregon Department of Forestry.
Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. 3:08-v-00889-MO.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
James Dovenberg appeals from the district court's dismissal of his suit against the United States and the United States Forest Service ("Forest Service") for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). As the facts are known to the parties, we repeat them here only as necessary to explain our decision.
Dovenberg's complaint challenges broadly the government's allegedly negligent training, supervision, • and instruction of Forest Service personnel working on Dovenberg's land while • fighting and remediating damage from the 14,000-acre Shake Table Complex wildfire in 2006. Decisions regarding the training and supervision of government employees "fall squarely within the discretionary function exception" to the Federal Tort Claims Act, Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000), as does the Forest Service's choice of how to fight a wildfire, see Miller v. United States, 163 F.3d 591, 595-96 (9th Cir. 1998). Dovenberg's claims against the government are therefore barred. See 28 U.S.C. § 2680(a).
The district court's grant of the government's motion to dismiss is