United States District Court, E.D. Tennessee, Knoxville Division
W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE
civil action is before the Court for consideration of
Defendant's motion to dismiss for lack of jurisdiction
[No. 3:19-cv-283 (“Vance”), doc. 10; No.
3:19-cv-296 (“Barnes”), doc. 8].
Plaintiffs have responded [Vance, doc. 14;
Barnes, doc. 12], and Defendant has replied
[Vance, doc. 16; Barnes, doc. 14]. This
matter is now ripe for the Court's determination. For the
reasons that follow, Defendant's motion to dismiss for
lack of jurisdiction [Vance, doc. 10;
Barnes, doc. 8] will be denied.
cases stem from the Chimney Tops 2 fire that began in the
Great Smoky Mountains National Park, and ravaged the City of
Gatlinburg, in November 2016. Plaintiffs have now sued the
United States under the Federal Tort Claims Act
(“FTCA”), seeking redress for their losses, which
include property losses and losses of life. [Doc.
1].Plaintiffs allege that the National Park
Service (“NPS”) was negligent in several respects
relating to their response to the wildfire, which burned
within the Park for several days before spreading to
Gatlinburg. Specifically, Plaintiffs allege that the NPS was
negligent in failing to monitor the wildfire overnight,
failing to comply with command structure requirements,
failing to adhere to mandatory fire management policies and
requirements, and failing to warn Park neighbors.
[Id. at 121-154]. Several Plaintiffs in
Vance have also raised claims of wrongful death and
loss of society and consortium relating to the deaths of
family members. [Id. at 155-56].
government has filed a motion to dismiss for lack of subject
matter jurisdiction, asserting that the claims all fall
within the discretionary function exception to the
government's waiver of sovereign immunity under the FTCA.
[Doc. 10]. Plaintiffs respond, contesting the applicability
of the discretionary function exception as to each claim.
[Doc. 14]. The government replies, reiterating many of its
original arguments. [Doc. 15].
22, 2019, the Court heard oral argument on identical motions
filed in related cases Reed v. United States
(3:18-cv-201), Anculle v. United States
(3:18-cv-308), and Adkins v. United States
(3:18-cv-310). At the time of those oral arguments, no motion
to dismiss had been filed in either of the two instant cases.
The Court denied the motions to dismiss in Reed,
Anculle, and Adkins, concluding that
Plaintiffs abandoned all of their claims of negligence at
oral argument, except that relating to the failure to warn of
the fire danger. [Reed, doc. 41; Anculle,
doc. 35; Adkins, doc. 35]. The Court then concluded
that the discretionary function exception did not bar
Plaintiffs' claims based on the failure to warn, and
denied the government's motion. [Id.]. Although
both Vance and Barnes contain identical
claims and arguments, relating to the motions to dismiss, as
those raised in Reed, Anculle, and
Adkins, the Court did not address the motions to
dismiss in Vance and Barnes at the same
time, because the Court could not conclude that the
abandonment of claims at oral argument in Reed,
Anculle, and Adkins applied equally to
Vance and Barnes. However, the parties in
Vance and Barnes have now filed a joint
notice to the Court that the parties intended the
representations made in the oral argument of Reed,
Anculle, and Adkins to equally apply to
Vance and Barnes. [Vance, doc. 17;
Barnes, doc. 16]. In light of this concession, the
Court concludes that the same analysis it applied to
Reed, Anculle, and Adkins, as
discussed below, also applies to Vance and
STANDARD OF REVIEW
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). In other words, federal courts “have
only the power that is authorized by Article III of the
Constitution and the statutes enacted by Congress pursuant
thereto.” Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986). As such, subject matter
jurisdiction is a threshold issue that the Court must address
and resolve prior to reaching the merits of the case.
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 94-95 (1998); see also Fed. R. Civ. P.
12(h)(3) (providing that, “[i]f the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action”). Unlike a motion to dismiss
for failure to state a claim under Rule 12(b)(6),
“where subject matter jurisdiction is challenged under
Rule 12(b)(1)[, ] . . . the plaintiff has the burden of
proving jurisdiction in order to survive the motion.”
RMI Titanium Co. v. Westinghouse Elec. Corp., 78
F.3d 1125, 1134 (6th Cir. 1996) (quoting Rogers v.
Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986)).
12(b)(1) motions fall into two categories: “facial
attacks and factual attacks.” United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “A
facial attack is a challenge to the sufficiency of the
pleading itself.” Id. In considering whether
jurisdiction has been established on the face of the
pleading, “the court must take the material allegations
of the [pleading] as true and construed in the light most
favorable to the nonmoving party.” Id. (citing
Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)).
“A factual attack, on the other hand, is not a
challenge to the sufficiency of the pleading's
allegations, but a challenge to the factual existence of
subject matter jurisdiction.” Id. In
considering whether jurisdiction has been proved as a matter
of fact, “a trial court has wide discretion to allow
affidavits, documents, and even a limited evidentiary hearing
to resolve disputed jurisdictional facts.” Ohio
Nat'l Life Ins. Co. v. United States, 922 F.2d 320,
325 (6th Cir. 1990). “Moreover, on the question of
subject matter jurisdiction the court is not limited to
jurisdictional allegations of the complaint but may properly
consider whatever evidence is submitted for the limited
purpose of ascertaining whether subject matter jurisdiction
exists.” Pryor Oil Co., Inc. v. United States,
299 F.Supp.2d 804, 807-08 (E.D. Tenn. 2003) (citing
Rogers, 798 F.2d at 915-16 (other citations
initial matter, although the parties briefed the issue of the
application of the discretionary function exception to each
of the claims raised in the complaint, at a hearing on this
matter, Plaintiffs limited their arguments to the failure to
warn claim. Specifically, Plaintiffs stated “make no
mistake, we're not challenging how they fought the fire.
We are challenging the warning decision, not how they fought
the fire. They have the right to decide to let it burn. They
have the right to decide to put it out.”
[Reed, doc. 40 at 15].
responded that this statement carved out 90 percent of the
case. [Id. at 35]. The Court then specifically asked
counsel for Plaintiffs to respond to this assertion, that the
only claim left in this case is the failure to warn claim.
[Id. at 41]. Counsel for Plaintiffs stated
unequivocally, “I agree.” The Court again asked
whether the failure to warn was the only issue that it needed
to address, and counsel responded:
I think you could find under the first part of the Gaubert
test that the safety policy that we set out was mandatory. I
think you could find that, because the language, it says, it
will be done. Now, with that said, I will admit that 90
percent of the cases are not won by the plaintiff on the
first part of the Gaubert test. So - but the real - the real
crux of this case is the failure to warn case.
light of counsel's statements, the Court must conclude
that Plaintiffs have abandoned their claims of negligence
that are not premised on the failure to warn. In their
complaint, Plaintiffs faulted the NPS for the following acts
of negligence: (1) failing to monitor the wildfire overnight;
(2) failing to comply with command structure requirements, by
allowing Fire Management Officer Greg Salansky to serve in
multiple overlapping roles; (3) failing to utilize a
“Step-Up Plan” to determine when the fire danger
had increased; (4) failing to perform a required complexity
analysis of the fire danger; (5) negligently implementing a
410-acre containment box; (6) failing to adopt contingency
plans in case the fire escaped the containment box; (7)
disregarding fire-behavior modeling and weather forecast; (8)
failing to utilize available air operations to suppress the
fire; (9) failing to implement a universal communications
system to permit inter-agency communications; (10) failing to
use the Wildland Fire Decision Support System; and (11)
failing to provide timely and accurate notice and warning to
park neighbors, local government officials, and others about
the status and imminent danger of the fire. [Doc. 1 at
121-154]. The vast majority of these claims directly attack
how the NPS decided to fight the fire-including the decision
to “let it burn”-which Plaintiffs now state is
not at issue. Moreover, the “safety policy”
referenced by Plaintiffs' counsel, when asked whether
failure to warn was the only remaining issue in this case,
appears to be a reference to part of counsel's argument
relating to the directives that Plaintiffs assert mandate
that the NPS warn of wildfire danger. Accordingly, based on
counsel's statements at the hearing on this matter, the
Court concludes that Plaintiffs have abandoned all claims of
negligence except their allegation that the NPS negligently
failed to warn of the danger posed by the Chimney Tops 2
fire. In light of this, Defendant's motion to dismiss
[doc. 10] will be denied as moot as to Plaintiffs'
Failure to Warn
Sixth Circuit, a plaintiff can invoke jurisdiction under the
FTCA “only if the complaint is facially outside the
exceptions [set forth in the FTCA].” Carlyle v.
Dept. of the Army, 674 F.2d 554, 556 (6th Cir. 1982).
The burden is on Plaintiff to plead sufficiently to
demonstrate that the discretionary function exception does
not apply. Hatcher v. United States, 855 F.Supp.2d
728, 731-32 (E.D. Tenn. 2012).
well established that the United States, as a sovereign, may
not be sued without its specific consent. United States
v. Sherwood, 312 U.S. 584, 586 (1941); Lundstrum v.
Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991); Garrett
v. United States, 640 F.2d 24, 26 (6th Cir. 1981).
Plaintiffs allege jurisdiction over the United States
pursuant to the FTCA. The FTCA provides a limited waiver of
sovereign immunity, that is, a waiver that only applies to
certain tort claims for:
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment, under circumstances where the
United States, if a private person, would be liable to the