ORDER RE DISMISSAL

Re: Dkt. Nos. 1, 58

JAMES DONATO, District Judge.

This case arises out of an accident at the "Thunder Over Solano" airshow sponsored by the United States Air Force ("USAF") in May 2014 at Travis Air Force Base. As alleged in the complaint, USAF invited Edward Andreini, an experienced aerobatic pilot, to open the show by performing a routine that included an inverted ribbon cut maneuver. Dkt. No. 1 ¶ 25. The maneuver required Andreini to invert the plane, fly low over the runway and cut a ribbon stretched between two poles with the aircraft's tail. Id. ¶ 28. For "reasons unknown," Andreini's plane hit the runway and came to a stop. Id. He initially radioed that he was "okay" but could not get out of the plane. Id. ¶ 29. He then said "I'm on fire — get me out!" Id. ¶ 30. A dispatcher called for fire and rescue crews as black smoke started to rise from the aircraft. Id. Plaintiffs allege that the first fire fighting vehicle arrived approximately 4 minutes and 30 seconds after the aircraft hit the runway, and that additional help arrived approximately 5 minutes and 5 seconds after the crash. Id. ¶¶ 33-34. Andreini could not be rescued and died from "extensive thermal injuries." Id. ¶ 34.

The decedent's surviving spouse and children sued the United States for negligence under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"). The gravamen of the negligence claim is that "applicable regulations, directives, standards, and orders" required fire and rescue teams to be on the crash site within three minutes of the accident. See, e.g., Dkt. No. 1 ¶ 6. In plaintiffs' view, had the USAF firefighters complied with that standard, Andreini would have survived the crash. Id. Plaintiffs also brought a civil rights claim in the complaint, which was dismissed without opposition. Dkt. No. 18.

The United States moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rules of Civil Procedure Rule 12(b)(1), and also brought an ancillary motion under Rule 12(c). Dkt. No. 58. The government's main argument is that the discretionary function exception under the FTCA, 28 U.S.C. § 2680(a), bars the negligence claim because there was no "specific mandatory directive" imposing a three-minute response time and the USAF's decisions about how and when to respond were choices grounded in policy considerations. Dkt. No. 58 at 8. The government brought a factual jurisdictional attack that relied on extrinsic evidence about its firefighting policies and procedures. See Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The Court had previously ordered discovery related to the motion. Dkt. No. 51.

The dilemma before the Court is that the parties have argued the jurisdiction dispute as a moving target across a spate of agency documents and standards. The complaint was premised on the allegation that the USAF was subject to a three-minute response requirement under standards promulgated by the National Fire Protection Association ("NFPA"). See, e.g., Dkt. No. 1 ¶¶ 21-22. The government denies that and says in its motion that the applicable standard is in Department of Defense Instruction 6055.06, which provides for a response time of five minutes in most cases for "unannounced" emergencies such as an unexpected air crash. See Dkt. No. 58 at 6. Plaintiffs adopt Instruction 6055.06 in their opposition brief but argue that it imposes a one-minute response requirement for "announced" emergencies, which they believe applies here. See Dkt. No. 71 at 3. Both sides compound these uncertainties by liberally citing to a plethora of other agency and administrative materials.

The Court cannot resolve the jurisdiction issue on these shifting sands. It may be that the government is right or that plaintiffs have stated a negligence claim based on a mandatory and specific rule or regulation that precludes a discretionary function exception. See Bailey v. United States, 623 F.3d 855, 860 (9th Cir. 2010) (discretionary function exception will not apply when a rule or regulation "directs mandatory and specific action and the agency has no lawful option but to adhere to the directive."). But the question cannot be decided on the current record because identifying the specific agency conduct the plaintiff challenges "is a necessary predicate to determining whether the government had discretion to take that action." Young v. United States, 769 F.3d 1047, 1054 (9th Cir. 2014). This predicate is unduly vague here, which is particularly problematic because the negligence claim appears to be based entirely on the government's non-conformance with a precise response time standard. An FTCA claim may be brought on a common law duty under California law, Gonzales v. United States, 814 F.3d 1022, 1027-28 (9th Cir. 2016), but the complaint does not seem to allege a common-law theory.

All of this also casts substantial doubt on the plausibility of the negligence claim as currently alleged. Plaintiffs appear to have moved away from the three-minute NFPA requirement as the cornerstone of their case, but that is the only the standard stated in the complaint. Consequently, the Court dismisses the complaint sua sponte with leave to amend. Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). Plaintiffs may file an amended complaint no later than April 10, 2017. If plaintiffs choose to amend, they should identify the specific rules or regulations, or common law duty, on which they base the negligence claim. The government may renew its jurisdictional motion, or move to dismiss on other grounds, if warranted by the amended complaint.

IT IS SO ORDERED.