The government moved to dismiss, and the district court granted the 12(b)(1) and (b)(6) motion on the grounds that the discretionary-function exception to the FTCA shielded the government from liability on plaintiffs' claims, and that no tort action was available for similar conduct under Arizona law. We disagree on both counts, and, accordingly, we reverse and remand.
I
[1] The FTCA waives sovereign immunity for specified torts of federal employees, including negligent or wrongful acts or omissions "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, [*3] would be liable under the law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b). A limitation on this waiver of sovereign immunity exists where the government is performing a "discretionary function," whether or not the discretion is abused. Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998). However, the discretionary-function exception covers acts which involve an element of choice; it does not apply where a "federal statute, regulation, or policy specifically "prescribes a course of action for an employee to follow," because "in this event, the employee has no rightful option but to adhere to the directive." Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988). Further, the exception protects only government actions and decisions based on "social, economic, and political policy." Id. at 537. The government bears the burden of establishing that the test is met and that discretionary immunity applies. Miller, 163 F.3d at 594.
[2] Taking all of the allegations of the complaint as true, and construing these facts in the light most favorable [*4] to the nonmoving party, as we must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), we hold that the government has failed to carry its burden here.
[7] In sum, the government has failed to establish that discretionary immunity applies with respect to either Kirk's or Varland's actions. See Miller, 163 F.3d at 594.
II
[8] Because [*7] the FTCA does not create liability, but merely waives sovereign immunity to the extent that state-law would impose liability on a "private individual in similar circumstances," 28 U.S.C. § 2674, we must also determine whether plaintiffs have pled facts sufficient to justify the imposition of liability under ordinary state-law principles.
[9] Generally, the United States can be held liable under the FTCA only when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
2004 U.S. App. LEXIS 6246
