Schurg v. US

The federal government is immune under the discretionary exception if: (1) “[the] challenged actions involve an element of judgment or choice” and (2) “[the] judgment is of the kind that the discretionary function exception was designed to shield.” Esquivel v. United States, 21 F.4th 565, 573 (9th Cir. 2021).

Landowners appealed the district court’s grant summary of judgment for the Forest Service. Under the Federal Tort Claims Act, the landowners filed suit, alleging that the agency failed to consult with each homeowner about the fire suppression plan concerning their respective properties. The federal government is immune under the discretionary exception if: (1) “[the] challenged actions involve an element of judgment or choice” and (2) “[the] judgment is of the kind that the discretionary function exception was designed to shield.” Esquivel v. United States, 21 F.4th 565, 573 (9th Cir. 2021). The Court determined that communication with landowners involved an element of judgment or choice. Considering the dynamic and unpredictable nature of wildfires, the Forest Service has refrained from established policies regarding communication. Communication with landowners was an objective rather than a policy, and it necessarily involved judgment. Moreover, the Forest Service’s decision to communicate with landowners is “the type of decision the discretionary function exception was designed to shield,” given the nature and challenges the Forest Service faces while fighting wildfires. The Court thus held that the district court was correct in granting summary judgment for the Forest Service. Affirmed.