HB 702 VACCINATION RESTRICTIONS: Enforcement of MCA 49-2-312 as it relates to COVID-19 vaccine against Montana healthcare facilities preliminarily enjoined for so long as CMS’s Interim Final Rule remains in effect… Molloy.

The 2021 Montana Legislature passed HB 702 which is codified at MCA 49-2-312 & 313. §312(1) makes it “an unlawful discriminatory practice” for any person, governmental entity, or public accommodation to deny benefits or services or condition such benefits or services “based on the person’s vaccination status or whether the person has an immunity passport.” (Timing suggests it is meant to address COVID-19 vaccination mandates or concerns but “vaccine” has a broader meaning: “a preparation that is used to stimulate the body’s immune response against diseases. Vaccines are usually administered through needle injections, but some can be administered by mouth or sprayed into the nose.” CDC Definition of Terms.) An “immunity passport” is “a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery,” while “‘vaccination status’ means an indication of whether a person has received one or more doses of a vaccine.” §312(5). The statute exempts schools and permits “health care facilities, as defined in 50-5-101” to ask an employee or volunteer for their vaccination status, but the employee or volunteer need not answer such inquiry. §312(2), (3). A “health care facility” “does not include offices of private physicians, dentists, or other physical or mental health care workers regulated under Title 37, including licensed addiction counselors.” §50-5-101(26). A non-answer to a vaccine inquiry may be treated as an indication that an employee or volunteer is not vaccinated, and that indication may inform an employer’s decision to implement reasonable accommodations. §312(3). §312(4) prohibits private employers and others from imposing the requirement of an vaccine that is authorized under an “emergency use” designation.

The Exempted Facilities are included in §313. They are “exempt from compliance with 49-2-312 during any period of time that compliance with 49-2-312 would result in a violation of regulations or guidance issued by the centers for medicare and medicaid services or the centers for disease control and prevention.”

The Centers for Medicare & Medicaid Services (CMS) is responsible for establishing health & safety standards with which healthcare facilities must comply in order to receive Medicare and Medicaid funding. In 11/21 CMS issued an Interim Final Rule (IFR) which “requires most Medicare- and Medicaid-certified providers and suppliers to ensure that their staff are fully vaccination for COVID-19.” 86 Fed. Reg. 61,568. (The IFR “directly applies only to the Medicare- and Medicaid-certified providers and suppliers [identified in the Rule]. It does not directly apply to other health care entities, such as physician offices, that are not regulated by CMS.”) The IFR notes that employers must comply with federal anti-discrimination and civil rights protections and “provide appropriate accommodations, to the extent required by Federal law, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.” 2 groups of states including Montana challenged the IFR and courts in Louisiana and Missouri enjoined it. Biden v. Missouri (US 2022 per curiam). The 5th and 8th Circuits denied the US’ request for a stay of the preliminary injunction and the US successfully appealed the denial.

The Supreme Court determined that the Secretary of HHS did not exceed his authority in promulgating the IFR and that he issued it based on his “determination that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.” It noted that “vaccination requirements are a common feature of the provision of healthcare in America; Healthcare workers are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, or rubella.”

CMS issued a “Guidance for the Interim Final Rule” 1/14/22 stating that it “specifically applies” to a number of states including Montana. It establishes benchmarks for compliance on 30-day, 60-day, and 90-day intervals with penalties for non-compliance. The 30-day deadline for compliance was 2/3/22. To be in compliance with the 30-day benchmark, facilities must demonstrate that policies & procedures are in place “for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19” and that “100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC.” If either the 1st or 2nd requirement is not met the facility is not in compliance with the IFR. If a facility fails to meet the 30-day benchmark — or the 60- or 90-day benchmarks — it is subject to “enforcement actions” that include “plans of correction, civil monetary penalties, denial of payment, or termination.”

In the week after the Guidance issued surveys were conducted on 6 long-term care facilities and a home health agency. 5 were compliant with the IFR and 2 were noncompliant as to vaccination deficiencies.

Private physician offices, the MMA, and individuals sued the Montana AG and Commissioner of Labor. The Montana Nurses Association appeared as a Plaintiff-Intervenor. Plaintiffs seek to preliminarily enjoin enforcement of the statute. A motion hearing and argument occurred 3/3/22.

It is unclear whether Plaintiffs want to enjoin §313 in addition to §312. In any event, §313 is not enjoined because it is not preempted by CMS’s 11/21 IFR which “requires most Medicare- and Medicaid-certified providers and suppliers to ensure that their staff are fully vaccinated for COVID-19.” The plain text of §313 exempts compliance with §312 when such compliance would contradict “regulations or guidance issued by the centers for medicare and medicaid services or the centers for disease control and prevention.”

Nor can §313 be enjoined at this point on the basis that Plaintiffs are likely to succeed on the merits of their equal protection claim. They did not make any arguments as to those claims as they related to the preliminary injunction factors or irreparable harm and the public interest, and they made only passing reference to them as they relate to the balance of the equities. To the extent that they seek an injunction of §49-2-313, that request is denied.

In addressing §49-2-312 the threshold question is whether the preliminary injunction standard or more onerous permanent injunction standard applies. The former standard governs.

A preliminary injunction requires that a plaintiff “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter (US 2008). “To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies at law are inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public interest would not be disserved by a permanent injunction.” Edmo (9th Cir. 2019). The Edmo standard is applicable when the court “advances the trial on the merits and consolidates it with the hearing” on a motion for preliminary injunction. Rule 65(a)(2). Where consolidation is considered “the court should provide the parties with clear and unambiguous notice of the intended consolidation either before the hearing commences or at a time which will afford the parties a full opportunity to present their respective cases.” ALPA (9th Cir. 1990). Rule 65(a)(2) makes clear that any consolidation may occur “before or after beginning the hearing on a motion for a preliminary injunction.”

After the Court issued notice that it was considering consolidation, Plaintiffs argued at the 3/3 hearing that consolidating the preliminary injunction hearing with a trial on the merits of Count VIII was appropriate. Count VIII alleges that §49-2-312 is preempted by 42 CFR Part 482 of which the IFR is part, so that §312 is invalid and unenforceable as a consequence of the Supremacy Clause. Defendants restated their objection to proceeding on the merits based in large part on timing. While the Court indicated that it was considering consolidation the day before the hearing was entirely permissible under Rule 65(a)(2), following argument and after reviewing the limited record, consolidation on the merits is not warranted. Accordingly, the preliminary injunction standard based on the familiar Winter factors applies.

Under the Winter evaluation each factor tips in Plaintiffs’ favor. Because of federal preemption they are likely to succeed on the merits of Count VIII. They also demonstrate that they are likely to suffer irreparable harm absent preliminary relief. The balance of equities and public interest both inure to Plaintiffs. As to the scope of the injunction, Defendants are correct that it should be narrow in duration and substance, so §49-2-312 is enjoined only so long as the IFR remains in effect.

Plaintiffs allege multiple preemption claims but the only one relevant is Count VIII: that §49-2-312 is preempted by the IFR. The language of the rule makes it likely that Plaintiffs will succeed in showing that it is “impossible for a private party to comply with both [the Montana] and federal requirements.” English (US 1990). For example, the Guidance requires that facilities demonstrate that all staff have received a vaccine for COVID-19 or applied for or received a qualifying exemption, while §49-2-312(3) prohibits healthcare facilities from meaningfully inquiring into the vaccination status of their employees. While the statute permits facilities to “ask an employee to volunteer the employee’s vaccination or immunization status for the purpose of determining whether the health care facility should implement reasonable accommodation measures,” it does not require that the employee respond. §49-2-312(3)(b)(i). Basically, no meaningful answer is required. Consequently, even though the statute permits facilities to consider a refusal to answer about his or her vaccination status as an indication that the employee is unvaccinated, that “consideration” is not a suitable substitute for the data required for a facility to prove compliance with the IFR. Without such data it will be nearly impossible for facilities to demonstrate compliance during the unannounced surveys that investigate records and interview staff.

Moreover, the Supreme Court in the recent Biden case noted that the IFR was implemented because it was “necessary to promote and protect patient health and safety in the face of the ongoing pandemic.” The “clear and manifest purpose” of the IFR is public health. By contrast, Defendants previously emphasized at the motion to dismiss stage an argument that Montana’s statutory scheme was enacted to promote one’s right to privacy, placing the individual’s interest on a pedestal of importance exceeding public healthy & safety in a pandemic. While those purposes are not inherently irreconcilable, the current codification of the State’s attempt to elevate individual privacy rights above all other rights is likely to be superseded by the clear purpose evinced in the IFR. Ultimately, given the clear preemption language in the Guidance, Plaintiffs have demonstrated they are likely to succeed on the merits of Count VIII as it relates to §49-2-312.

Plaintiffs must establish that the prospect of irreparable harm is not merely possible but that it is “likely.” Winter. Monetary injury alone is not usually considered “irreparable” in the context of an injunction. LAMCC (9th Cir. 1980). A significant concern is whether the moving party has an adequate remedy at law. Morales (US 1992). “When enforcement actions are imminent — and at least when repetitive penalties attach to continuing or repeated violations and the moving party lacks the realistic option of violating the law once and raising its federal defenses — there is no adequate remedy at law.” Id. A constitutional violation alone can suffice to show irreparable harm, as can the loss of business goodwill and reputation. American Trucking Ass’n (9th Cir. 2009).

The American Trucking Association challenged mandatory “Concession Agreements” implemented by California on the basis that they attempted to regulate “the price, route, or service of any motor carrier” in violation of the Federal Aviation Administration Authorization Act. It sought to preliminarily enjoin the agreements, which the Court denied largely based on its finding that they failed to establish irreparable harm. The 9th Circuit reversed on the basis that “a very real penalty attaches to the motor carriers regardless of how they proceed. That is an imminent harm.” The Court emphasized that the plaintiff could refuse to sign “the likely unconstitutional Concession Agreements” and likely face a loss of business goodwill, or it could sign the agreements, in which case “its plight is not much better” because it “will have been forced to sign an agreement to conditions which are likely unconstitutional because they are preempted” and “will be forced to incur such large costs which, if it manages to survive those, will disrupt and change the whole nature of its business in ways that most likely cannot be compensated with damages alone.” The 9th Circuit essentially determined that “motor carriers should not be required to adhere to the various unconstitutional provisions in the agreements, and are likely to suffer irrevocably if forced to do that or give up their business.”

Plaintiffs argue that the “impossible choice” of complying with either the IFR or §49-2-312, but not both, creates irreparable harm. They argue that they will sustain additional harm absent a preliminary injunction including potential termination from Medicaid and Medicare and resulting loss of healthcare capabilities to Montanans. Defendants respond that the alleged harm is too speculative and not “irreparable.” They emphasize that if the IFR preempts §49-2-312, “the Rule acts as an affirmative defense to any action taken by the State pursuant to the statute — a defense that may be raised throughout the administrative process before subjecting Plaintiffs to liability.” (Citing Whole Woman’s Health (US 2021).) They also argue that there is no evidence that compliance with the IFR will result in irreparable harm. That argument seems to be that if charged with wrongdoing, Plaintiffs would not be liable because their preemption argument is probably well-taken.

Plaintiffs demonstrate that irreparable harm is likely absent injunctive relief. Under the Guidance’s 30-, 60-, and 90-day benchmarks for compliance with the IFR, healthcare facilities that fail to demonstrate compliance may be subject to “enforcement action” such as civil monetary penalties. While Defendants correctly note that monetary penalties do not satisfy the irreparable harm showing on their own, like the plaintiff in American Trucking, Plaintiffs face more than mere monetary penalties. Failure to comply with the IFR could result in a wide range of penalties including termination of participation in Medicaid and Medicare. The Guidance also specifically targets Montana as a state to which the IFR and Guidance benchmarks apply. That callout increases the likelihood that penalties will be enforced.

Defendants submitted a letter from Montana Health Network that describes the “difficult position” in which Montana healthcare facilities find themselves given the contradiction between §49-2-312 and the IFR. This emphasizes the Hobson’s choice Montana’s healthcare facilities find themselves facing, similar to the choice in American Trucking. On one hand, facilities can comply with 49-2-312 and violate the IFR, which requires them to “risk being decertified by the CMS program.” But if they ignore the IFR “and continue billing Medicare and Medicaid they are committing fraud against the program which could result in steep fines and jail time for some of its employees.” On the other hand, MHN avers that compliance with the IFR would naturally result in the loss of goodwill for facilities in Montana because it will effectively shutter rural facilities and “because of this, many will forego care because of the inconvenience or impossibility of travel and added costs associated with it.”

Defendants’ suggested affirmative defense argument likewise fails. First, Whole Woman’s Health is inapposite to the argument that the IFR could defeat an action before the Montana Human Rights Commission. In noting that “applicable federal constitutional defenses always stand fully available when properly asserted,” the Supreme Court presumed that the body reviewing the claim would have the power to adjudicate constitutional questions. Montana Constitution Art. II §1 states that constitutional questions must only be decided by a judicial body and so the federal preemption defense would fail if raised before the HRC. Additionally, while Defendants are correct that the mere cost of litigation is not an irreparable harm, Standard Oil (US 1980), the irreparable harm stretches beyond the “mere cost of litigation.” Unlike the plaintiffs in Standard Oil, Plaintiffs will be penalized for complying with either the IFR or §49-2-312. They cannot be forced to choose between “two roads diverging in a wood” when they face dire consequences that could make “all the difference.”

The record shows that “a very real penalty attaches to the [healthcare facilities] regardless of how they proceed. That is an imminent harm.” American Trucking. The imminence of this harm is further demonstrated by the fact that CMS compliance surveys are occurring and noncompliance is being documented. “We cannot defy the mandate by continuing to employ unvaccinated workers without punitive action being taken by the CMS.” The harm of non-compliance is also likely to be irreparable. If facilities comply with §49-2-312 they risk termination from the CMS program. And given that Plaintiffs have shown they are likely to succeed on the merits of their preemption claim, ignoring the IFR means complying with a statute that is “likely unconstitutional because it is preempted.” Id. This kind of constitutional injury shows a likelihood of irreparable harm. Plaintiffs have therefore shown that irreparable harm will result absent injunctive relief.

Where the government is the opposing party, the 3rd & 4th factors of the preliminary injunction inquiry merge, so the balance of the equities and the public interest are considered together. Nken (US 2009). Considerations for balancing the equities include whether “the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences.” Boardman (9th Cir. 2016). While “the public interest may be declared in the form of a statute,” Golden Gate Rest. Ass’n (9th Cir. 2008), “it would not be equitable or in the public’s interest to allow the state to violate the requirements of federal law, especially when there are no adequate remedies available.” Arizona Dream Coalition (9th Cir. 2014). In addition, Montana has an interest in administering its police power to “protect the public health and the public safety.” Jacobson (US 1905). But its police power is circumscribed by principles of federalism and “the mode or manner in which those results are to be accomplished is within the discretion of the state, subject to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States.” Id. There is also a public interest in a functioning society. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Id.

As Defendants argue, codification of HB 702 in §§ 49-2-312 & 313 in some way expresses the public’s interest because the Legislature passed it. Golden Gate. But as Plaintiffs point out, it is inherently against the public interest to allow a state statute to violate federal law, Arizona Dream Coalition, and Plaintiffs have shown that §49-2-312 is likely a violation of federal law based on the preemption question.

Each party also emphasizes the purported consequences to public health should the adverse party’s requested relief be granted. According to Plaintiffs, the public is best served by enjoining the law because healthcare facilities would then be able to ensure that all staff are vaccinated against COVID-19 or have approved accommodation requests. According to Defendants, the public would be best served by allowing the statute to actively remain on the books, to protect Montanans from fear of losing their jobs, and protect individual choice, even in a pandemic. Given that the State’s police power should operate to “protect the public health and the public safety” and also submit to federal law in the event of conflict, the scales tip in favor of Plaintiffs’ argument concerning public health. As Jacobson recognized, certain restraints on an individual are occasionally reasonable to promote the common good and actualize the public interest in a civil society. Therefore, while there is undeniably tension between the IFR and §49-2-312, principles of federalism, including the Supremacy Clause, elevate the interests expressed in the IFR to favor Plaintiffs.

“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Int’l Refugee Assistance Project (US 2017). A preliminary injunction should be crafted to “meet the exigencies of the particular case.” Id. The preliminary injunction here is limited to the law set forth in §49-2-312 and will only be in place so long as the IFR remains in effect. Because all Montana facilities receiving CMS funds must comply with the IFR, enforcement of §49-2-312 is enjoined against all such facilities. The parties shall notify the Court within 10 days of any changes to or expiration of the IFR.

Montana Medical Association et al v. AG Knudsen et al, 44 MFR 275, 3/18/22.

Justin Cole & Kathryn Mahe (Garlington Lohn & Robinson), Missoula, for Plaintiffs; Raphael Graybill (Graybill Law Firm), Great Falls, for MNA; Alwyn Lansing, Brent Mead, David Dewhirst, and Christian Corrigan (AG’s Office), and Emily Jones (Jones Law Firm), Billings, for Defendants.

MALICIOUS PROSECUTION and numerous other claims against City and officers by attorney cited for barking dogs, disorderly conduct, misdemeanor assault stemming from obscenity laced screaming rant dismissed on summary judgment… Cavan/Watters.

On 3/9/18 at 9:27 p.m. Livingston Officers O’Neill and Hildebrand responded to a complaint that a dog had been barking outside a residence for 2 hours. The residence belonged to attorney Jami Rebsom. O’Neill could hear her dogs barking from her backyard but the officers left because no one was home.

At 10:32 another resident called to report barking dogs at Rebsom’s residence. O’Neill called her. She said she was home but hung up before he could discuss the complaints.

At 10:45 O’Neill and Hildebrand returned to Rebsom’s residence. They could hear her yelling, “Get out here you fucking bitch” and “fuck you.” They heard a neighbor’s screen door open and a man ask, “What is going on?”

When O’Neill and Hildebrand went to Rebsom’s front door she refused to open it or speak with them and displayed both middle fingers through the glass door and told them to “fuck off” and “get a warrant mother fuckers.” Sgt. LaBaty arrived and the officers informed Rebsom that she would be cited for disorderly conduct and keeping barking dogs. Because she refused to speak with them and was possibly intoxicated they decided to issue the citations the next day. As they were preparing to leave she placed a 911 call that was transferred to LaBaty. He advised her that they were leaving. She hung up, called 911, and left a message for the Police Chief. All officers left her residence by 10:55.

When Officer Kunnath arrived for his shift the next morning O’Neill briefed him on the events at Rebsom’s residence and asked him to serve her with the citations for keeping barking dogs and disorderly conduct.

Kunnath spoke to Rebsom’s neighbor Emily Greenwald who wished to report an incident from the previous night. She and her husband Jason provided oral and written statements. He reported that around 10:30 he was in his living room when he heard Rebsom screaming, “Emily Greenwald you fucking bitch, get your ass out here. I am going to fucking kill you.” (Rebsom believed that Emily was the one who called police about the barking dogs but it was other neighbors who had called.) Jason stated that he opened his back door and said, “Excuse me,” but Rebsom did not respond. He reported that he was fearful that she may be approaching their home so he picked up his phone in case he needed to call police and went to his front window where he saw the police at her residence. He stated that this was not the first time she had yelled obscenities late at night.

Emily reported that she was in a back bedroom when Rebsom was screaming and could hear shouting and barking dogs but could not make out what was said. At 6:30 the next morning Jason told her what Rebsom had screamed. Both reported fearing for their safety and wished that assault charges be filed.

Kunnath delivered the citations for disorderly conduct and keeping barking dogs and also cited Rebsom for assault in violation of MCA 45-5-201(1)(d) based on Greenwalds’ complaint. Rebsom contacted Livingston Prosecutor Jay Porteen and asked that he dismiss the assault charge. He declined to do so. All charges were later dismissed because Greenwalds moved from Livingston and were unavailable to testify.

On 3/10/20 Rebsom sued asserting §1983 claims against Kunnath, O’Neill, and LaBaty and state law claims for respondeat superior against Livingston, malicious prosecution against Kunnath, Porteen, and Livingston, actual/malice punitives against Kunnath and Porteen, negligence against Porteen, defamation/libel against Kunnath, defamation/slander against Kunnath, defamation/libel against O’Neill, and defamation/slander against O’Neill. O’Neill and LaBaty previously moved for summary judgment which was granted. Kunnath, Livingston, and Porteen now move for summary judgment.

Count I — §1983 claim against Kunnath.

In her Complaint Rebsom alleges that Kunnath “made an unreasonable search and seizure of Rebsom’s person and home, assaulted, battered and falsely imprisoned her.” However, in responding to Kunnath’s motion for summary judgment she does not address any of these allegations. But lest there is any question as to the merits of these allegations or whether there is any factual basis to support them, it is undisputed that Kunnath was not one of the officers who responded to Rebsom’s home 3/9/18, he did not search her home, he did not attempt to enter her home, he did not search her, and he did not assault, batter, or falsely imprison her. (Rebsom did not know which officers were at her home and only assumed that Kunnath was one of them.) Further, contrary to suggestions in her brief, it is undisputed that she was not arrested. She was not handcuffed or taken into custody. She was not deprived of her liberty or restrained in any manner. She was only issued a citation. Hence her 4th Amendment claim is reduced to the argument that issuance of the citation without probable cause constituted an unreasonable seizure. But the mere issuance of a misdemeanor citation is not a seizure under the 4th Amendment. Karam (9th Cir. 2003); Britton (1st Cir. 1999); Martinez (10th Cir. 2007); Bielanski (7th Cir. 2008); White (CD Cal. 2010); Raiser (CD Cal. 2020) (“numerous courts have held that the mere issuance of a citation does not constitute a seizure”). Rebsom was issued a citation for a misdemeanor which required that she appear in court. She has raised no other facts to suggest that her liberty was otherwise retrained in any manner. No 4th Amendment violation occurred.

Rebsom contends in her response brief that Kunnath violated her 1st Amendment rights by issuing the assault citation, but she did not plead any 1st Amendment claim or even mention the 1st Amendment in her Complaint and her argument will be disregarded.

Count V — malicious prosecution.

Count V is captioned as a malicious prosecution claim against Porteen and Livingston but the allegations also reference Kunnath so it is assumed that the claim is also asserted against him.

Considering the totality of circumstances known to Kunnath, he had probable cause to believe that Rebsom committed misdemeanor assault. By threatening to kill Emily it was certainly reasonable to conclude that it was her conscious object to cause her apprehension of bodily injury and that there was a high probability that the threat would result in such apprehension. MCA 45-2-101(65), 45-2-101(35). Additionally, she was successful in doing so. Both Emily and Jason reported that they were fearful for their safety and the safety of their family. Rebsom argues that Kunnath lacked probable cause because she did not have contact with Emily and Emily could not have reasonably apprehended injury at the time the threats were made because Jason’s report to police indicates that Emily was asleep when she was shouting. However, Emily’s statement establishes that she was awake and heard shouting although she could not hear what was said. Regardless, it is undisputed that Rebsom’s specific threats were subsequently communicated to Emily.

The Montana Supreme Court has determined that a threat need not be communicated directly to the victim to cause reasonable apprehension of injury; it can be communicated to the victim by a 3rd party. This has been made clear in several cases considering an analogous statute involving apprehension of injury with a weapon. Swann (Mont. 2007); Smith (Mont. 2004); Misner (Mont. 1988). Although the interval between the threat and the communication to Emily is greater than in those cases, all that is necessary is that Rebsom’s threat to kill Emily created circumstances which led Emily to reasonably apprehend injury.

Rebsom nevertheless asserts without citation to authority that it must be shown that “Emily Greenwald, either had: (1) contact with Rebsom; or (2) was concerned that at the moment of the act, the alleged victim suffered reasonable apprehension of bodily injury.” But that is not what the statute says. It does not have a temporal condition that requires concurrence of the defendant’s act and the victim’s apprehension of injury.

In addition, while Rebsom argues that there was no cause for assault as to Emily, she does not address an assault as to Jason. A threat need not be directed at the victim to create a reasonable apprehension of injury. In Walsh (Mont. 1997), Chellsi, 10, witnessed her mother’s fiancé be beaten by 2 men while she and her mother were in a car. She testified that she was fearful they were going to attack her and her mother. The Montana Supreme Court affirmed an assault conviction as to Chellsi, finding that a jury could have found that she reasonably apprehended injury to herself and noting that an assault victim need not be “the direct recipient of the defendant’s actions.” While Jason was not the direct target of Rebsom’s threats, he heard her screaming late at night that she was going to kill his wife. He was “shaken” enough to get his phone ready to call police and to check if Rebsom was approaching their home and “I was concerned for my safety since it seemed to me that Ms. Rebsom was out of control and filled with rage however misguided.” Thus Kunnath reasonably concluded that Rebsom also caused reasonable apprehension of injury in Jason. Since probable cause was present as to both Emily and Jason, Rebsom’s claims for malicious prosecution necessarily fail.

Count VI – malice.

Count VI is captioned as a claim for “Actual Malice against Defendant Porteen,” but Kunnath is again mentioned in the allegations. The claim for actual malice appears not to be an independent claim but a claim for punitives based on the alleged prosecution of Rebsom without probable cause. Since Kunnath had probable cause to issue the assault citation, this claim necessarily fails.

Counts VIII-IX — defamation/libel/slander against Kunnath.

The basis of Rebsom’s defamation claims against Kunnath are the statements in the assault citation. She has presented no facts to show that they are false. It states: “Jason Greenwald heard neighbor Jami Rebsom scream “Emily Greenwald you fucking bitch get your ass out here. I’m going to fucking kill you.” It is undisputed that she said this and thus the allegedly defamatory statement cannot be false.

A privileged publication is “one made (1) in the proper discharge of an official duty; (2) in any judicial proceeding or in any other official proceeding authorized by law.” Sacco (Mont. 1995) adopted the Restatement of Torts’ approach and determined that “an arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege.” Therefore the act of issuing a citation is a privileged publication made in the proper discharge of an official duty. It is undisputed that Kunnath is a police officer authorized to respond to complaints, write reports, and issue citations, he issued the assault citation to Rebsom in the discharge of his duties, and the citation was in a judicial proceeding or other proceeding authorized by law. Because the citation does not contain any false statements and is a privileged publication, Rebsom’s defamation claims necessarily fail.

Count II — §1983 claim against Livingston.

Rebsom asserted a Monell (US 1978) claim against Livingston based on Kunnath’s implementation of a city policy or custom and/or due to its inadequate hiring & supervision of him. The Court has determined that his conduct did not deprive her of a constitutional right and thus her §1983 claim against Livingston necessarily fails.

Count III – respondeat superior claim against Livingston.

Rebsom seeks to hold Livingston vicariously liable for trespass and violation of privacy and malicious prosecution by Kunnath and malicious prosecution based on Porteen’s continued prosecution.

It is unclear when and how Kunnath trespassed or violated her privacy. He was not present that night. To the extent that these allegations related to his issuance of the assault citation, Rebsom’s complaint does not set forth any allegation that he committed a trespass or violated her privacy in issuing the citation, nor does she raise any factual support or other argument in her summary judgment response that he committed a trespass or violated her privacy. In addition, the Court has found that probable cause existed for Rebsom’s citation and that her claim for malicious prosecution is subject to summary judgment. Therefore, Kunnath did not engage in any wrongful conduct that can be imputed to Livingston. Moreover, to the extent that her “respondeat superior” claim is based on Porteen’s action, prosecutorial immunity bars her claim against him. A state prosecutor is entitled to absolute immunity from liability under §1983 when he engages in activities “intimately associated with the judicial phase of the criminal process” such as initiating a prosecution. Imbler (US 1976). Rebsom’s allegations against Porteen stem from his initial refusal to dismiss the assault, an activity intimately associated with the judicial phase of the criminal process. The citation was also supported by probable cause and thus a malicious prosecution claim against Porteen fails.

Count IV — §1983 claim against Porteen.

Porteen argues that the appropriate remedy for this claim is a state law malicious prosecution claim. Rebsom agrees that the “Civil rights against Porteen found in Count IV of the Amended Complaint (excluding the negligence claims and the malicious prosecution claims) and the City related to Porteen’s actions should be dismissed.”

Count V — malicious prosecution claim against Porteen and Livingston.

The Court has found probable cause for the assault charge against Rebsom and her malicious prosecution claim is subject to summary judgment on that basis alone. In addition, Porteen’s actions in initiating and maintaining the prosecution of the assault charge are protected by prosecutorial immunity. Therefore he has no liability under Rebsom’s malicious prosecution claim and there is no liability to impute to Livingston.

Counts VI and VII — actual malice and negligence claims against Porteen.

Both of these claims are based on alleged lack of probable cause to initiate and maintain the charge against Rebsom. Probable cause existed and Porteen’s decision to prosecute her is protected by prosecutorial immunity.

Recommended: Summary judgment be granted for Kunnath, Livingston, and Porteen.

 

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Judge Watters’s order adopting Cavan’s findings & recommendations.

Magistrate Cavan filed findings & recommendations on Steve Kunnath’s motion for summary judgment and Livingston’s and Jay Porteen’s motion for summary judgment, recommending that each motion be granted. No objections were filed within 14 days as required by 28 USC 636(b)(1) and thus this Court reviews the findings & recommendations for clear error which exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” Syrax (9th Cir. 2000). After reviewing the findings & recommendations, this Court does not find that Cavan committed clear error. His proposed findings & recommendations are adopted in full.

Rebsom v. Kunnath, Livingston, and Porteen, 44 MFR 274, Cavan’s F&R 2/25/22, Watters’s adoption 3/16/22.

Suzanne Marshall (Marshall Law), Bozeman, for Rebsom; Harlan Krogh & Haley Ford (Crist, Krogh, Alke & Nord), Billings, for Kunnath, O’Neill, and LaBaty; Randall Nelson & Thomas Bancroft (Nelson Law Firm), Billings, for Livingston.

MALICIOUS PROSECUTION and numerous other claims against City and officers by attorney cited for barking dogs, disorderly conduct, misdemeanor assault stemming from obscenity laced screaming rant dismissed on summary judgment… Cavan/Watters.

On 3/9/18 at 9:27 p.m. Livingston Officers O’Neill and Hildebrand responded to a complaint that a dog had been barking outside a residence for 2 hours. The residence belonged to attorney Jami Rebsom. O’Neill could hear her dogs barking from her backyard but the officers left because no one was home.

At 10:32 another resident called to report barking dogs at Rebsom’s residence. O’Neill called her. She said she was home but hung up before he could discuss the complaints.

At 10:45 O’Neill and Hildebrand returned to Rebsom’s residence. They could hear her yelling, “Get out here you fucking bitch” and “fuck you.” They heard a neighbor’s screen door open and a man ask, “What is going on?”

When O’Neill and Hildebrand went to Rebsom’s front door she refused to open it or speak with them and displayed both middle fingers through the glass door and told them to “fuck off” and “get a warrant mother fuckers.” Sgt. LaBaty arrived and the officers informed Rebsom that she would be cited for disorderly conduct and keeping barking dogs. Because she refused to speak with them and was possibly intoxicated they decided to issue the citations the next day. As they were preparing to leave she placed a 911 call that was transferred to LaBaty. He advised her that they were leaving. She hung up, called 911, and left a message for the Police Chief. All officers left her residence by 10:55.

When Officer Kunnath arrived for his shift the next morning O’Neill briefed him on the events at Rebsom’s residence and asked him to serve her with the citations for keeping barking dogs and disorderly conduct.

Kunnath spoke to Rebsom’s neighbor Emily Greenwald who wished to report an incident from the previous night. She and her husband Jason provided oral and written statements. He reported that around 10:30 he was in his living room when he heard Rebsom screaming, “Emily Greenwald you fucking bitch, get your ass out here. I am going to fucking kill you.” (Rebsom believed that Emily was the one who called police about the barking dogs but it was other neighbors who had called.) Jason stated that he opened his back door and said, “Excuse me,” but Rebsom did not respond. He reported that he was fearful that she may be approaching their home so he picked up his phone in case he needed to call police and went to his front window where he saw the police at her residence. He stated that this was not the first time she had yelled obscenities late at night.

Emily reported that she was in a back bedroom when Rebsom was screaming and could hear shouting and barking dogs but could not make out what was said. At 6:30 the next morning Jason told her what Rebsom had screamed. Both reported fearing for their safety and wished that assault charges be filed.

Kunnath delivered the citations for disorderly conduct and keeping barking dogs and also cited Rebsom for assault in violation of MCA 45-5-201(1)(d) based on Greenwalds’ complaint. Rebsom contacted Livingston Prosecutor Jay Porteen and asked that he dismiss the assault charge. He declined to do so. All charges were later dismissed because Greenwalds moved from Livingston and were unavailable to testify.

On 3/10/20 Rebsom sued asserting §1983 claims against Kunnath, O’Neill, and LaBaty and state law claims for respondeat superior against Livingston, malicious prosecution against Kunnath, Porteen, and Livingston, actual/malice punitives against Kunnath and Porteen, negligence against Porteen, defamation/libel against Kunnath, defamation/slander against Kunnath, defamation/libel against O’Neill, and defamation/slander against O’Neill. O’Neill and LaBaty previously moved for summary judgment which was granted. Kunnath, Livingston, and Porteen now move for summary judgment.

Count I — §1983 claim against Kunnath.

In her Complaint Rebsom alleges that Kunnath “made an unreasonable search and seizure of Rebsom’s person and home, assaulted, battered and falsely imprisoned her.” However, in responding to Kunnath’s motion for summary judgment she does not address any of these allegations. But lest there is any question as to the merits of these allegations or whether there is any factual basis to support them, it is undisputed that Kunnath was not one of the officers who responded to Rebsom’s home 3/9/18, he did not search her home, he did not attempt to enter her home, he did not search her, and he did not assault, batter, or falsely imprison her. (Rebsom did not know which officers were at her home and only assumed that Kunnath was one of them.) Further, contrary to suggestions in her brief, it is undisputed that she was not arrested. She was not handcuffed or taken into custody. She was not deprived of her liberty or restrained in any manner. She was only issued a citation. Hence her 4th Amendment claim is reduced to the argument that issuance of the citation without probable cause constituted an unreasonable seizure. But the mere issuance of a misdemeanor citation is not a seizure under the 4th Amendment. Karam (9th Cir. 2003); Britton (1st Cir. 1999); Martinez (10th Cir. 2007); Bielanski (7th Cir. 2008); White (CD Cal. 2010); Raiser (CD Cal. 2020) (“numerous courts have held that the mere issuance of a citation does not constitute a seizure”). Rebsom was issued a citation for a misdemeanor which required that she appear in court. She has raised no other facts to suggest that her liberty was otherwise retrained in any manner. No 4th Amendment violation occurred.

Rebsom contends in her response brief that Kunnath violated her 1st Amendment rights by issuing the assault citation, but she did not plead any 1st Amendment claim or even mention the 1st Amendment in her Complaint and her argument will be disregarded.

Count V — malicious prosecution.

Count V is captioned as a malicious prosecution claim against Porteen and Livingston but the allegations also reference Kunnath so it is assumed that the claim is also asserted against him.

Considering the totality of circumstances known to Kunnath, he had probable cause to believe that Rebsom committed misdemeanor assault. By threatening to kill Emily it was certainly reasonable to conclude that it was her conscious object to cause her apprehension of bodily injury and that there was a high probability that the threat would result in such apprehension. MCA 45-2-101(65), 45-2-101(35). Additionally, she was successful in doing so. Both Emily and Jason reported that they were fearful for their safety and the safety of their family. Rebsom argues that Kunnath lacked probable cause because she did not have contact with Emily and Emily could not have reasonably apprehended injury at the time the threats were made because Jason’s report to police indicates that Emily was asleep when she was shouting. However, Emily’s statement establishes that she was awake and heard shouting although she could not hear what was said. Regardless, it is undisputed that Rebsom’s specific threats were subsequently communicated to Emily.

The Montana Supreme Court has determined that a threat need not be communicated directly to the victim to cause reasonable apprehension of injury; it can be communicated to the victim by a 3rd party. This has been made clear in several cases considering an analogous statute involving apprehension of injury with a weapon. Swann (Mont. 2007); Smith (Mont. 2004); Misner (Mont. 1988). Although the interval between the threat and the communication to Emily is greater than in those cases, all that is necessary is that Rebsom’s threat to kill Emily created circumstances which led Emily to reasonably apprehend injury.

Rebsom nevertheless asserts without citation to authority that it must be shown that “Emily Greenwald, either had: (1) contact with Rebsom; or (2) was concerned that at the moment of the act, the alleged victim suffered reasonable apprehension of bodily injury.” But that is not what the statute says. It does not have a temporal condition that requires concurrence of the defendant’s act and the victim’s apprehension of injury.

In addition, while Rebsom argues that there was no cause for assault as to Emily, she does not address an assault as to Jason. A threat need not be directed at the victim to create a reasonable apprehension of injury. In Walsh (Mont. 1997), Chellsi, 10, witnessed her mother’s fiancé be beaten by 2 men while she and her mother were in a car. She testified that she was fearful they were going to attack her and her mother. The Montana Supreme Court affirmed an assault conviction as to Chellsi, finding that a jury could have found that she reasonably apprehended injury to herself and noting that an assault victim need not be “the direct recipient of the defendant’s actions.” While Jason was not the direct target of Rebsom’s threats, he heard her screaming late at night that she was going to kill his wife. He was “shaken” enough to get his phone ready to call police and to check if Rebsom was approaching their home and “I was concerned for my safety since it seemed to me that Ms. Rebsom was out of control and filled with rage however misguided.” Thus Kunnath reasonably concluded that Rebsom also caused reasonable apprehension of injury in Jason. Since probable cause was present as to both Emily and Jason, Rebsom’s claims for malicious prosecution necessarily fail.

Count VI – malice.

Count VI is captioned as a claim for “Actual Malice against Defendant Porteen,” but Kunnath is again mentioned in the allegations. The claim for actual malice appears not to be an independent claim but a claim for punitives based on the alleged prosecution of Rebsom without probable cause. Since Kunnath had probable cause to issue the assault citation, this claim necessarily fails.

Counts VIII-IX — defamation/libel/slander against Kunnath.

The basis of Rebsom’s defamation claims against Kunnath are the statements in the assault citation. She has presented no facts to show that they are false. It states: “Jason Greenwald heard neighbor Jami Rebsom scream “Emily Greenwald you fucking bitch get your ass out here. I’m going to fucking kill you.” It is undisputed that she said this and thus the allegedly defamatory statement cannot be false.

A privileged publication is “one made (1) in the proper discharge of an official duty; (2) in any judicial proceeding or in any other official proceeding authorized by law.” Sacco (Mont. 1995) adopted the Restatement of Torts’ approach and determined that “an arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege.” Therefore the act of issuing a citation is a privileged publication made in the proper discharge of an official duty. It is undisputed that Kunnath is a police officer authorized to respond to complaints, write reports, and issue citations, he issued the assault citation to Rebsom in the discharge of his duties, and the citation was in a judicial proceeding or other proceeding authorized by law. Because the citation does not contain any false statements and is a privileged publication, Rebsom’s defamation claims necessarily fail.

Count II — §1983 claim against Livingston.

Rebsom asserted a Monell (US 1978) claim against Livingston based on Kunnath’s implementation of a city policy or custom and/or due to its inadequate hiring & supervision of him. The Court has determined that his conduct did not deprive her of a constitutional right and thus her §1983 claim against Livingston necessarily fails.

Count III – respondeat superior claim against Livingston.

Rebsom seeks to hold Livingston vicariously liable for trespass and violation of privacy and malicious prosecution by Kunnath and malicious prosecution based on Porteen’s continued prosecution.

It is unclear when and how Kunnath trespassed or violated her privacy. He was not present that night. To the extent that these allegations related to his issuance of the assault citation, Rebsom’s complaint does not set forth any allegation that he committed a trespass or violated her privacy in issuing the citation, nor does she raise any factual support or other argument in her summary judgment response that he committed a trespass or violated her privacy. In addition, the Court has found that probable cause existed for Rebsom’s citation and that her claim for malicious prosecution is subject to summary judgment. Therefore, Kunnath did not engage in any wrongful conduct that can be imputed to Livingston. Moreover, to the extent that her “respondeat superior” claim is based on Porteen’s action, prosecutorial immunity bars her claim against him. A state prosecutor is entitled to absolute immunity from liability under §1983 when he engages in activities “intimately associated with the judicial phase of the criminal process” such as initiating a prosecution. Imbler (US 1976). Rebsom’s allegations against Porteen stem from his initial refusal to dismiss the assault, an activity intimately associated with the judicial phase of the criminal process. The citation was also supported by probable cause and thus a malicious prosecution claim against Porteen fails.

Count IV — §1983 claim against Porteen.

Porteen argues that the appropriate remedy for this claim is a state law malicious prosecution claim. Rebsom agrees that the “Civil rights against Porteen found in Count IV of the Amended Complaint (excluding the negligence claims and the malicious prosecution claims) and the City related to Porteen’s actions should be dismissed.”

Count V — malicious prosecution claim against Porteen and Livingston.

The Court has found probable cause for the assault charge against Rebsom and her malicious prosecution claim is subject to summary judgment on that basis alone. In addition, Porteen’s actions in initiating and maintaining the prosecution of the assault charge are protected by prosecutorial immunity. Therefore he has no liability under Rebsom’s malicious prosecution claim and there is no liability to impute to Livingston.

Counts VI and VII — actual malice and negligence claims against Porteen.

Both of these claims are based on alleged lack of probable cause to initiate and maintain the charge against Rebsom. Probable cause existed and Porteen’s decision to prosecute her is protected by prosecutorial immunity.

Recommended: Summary judgment be granted for Kunnath, Livingston, and Porteen.

 

 

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Judge Watters’s order adopting Cavan’s findings & recommendations.

Magistrate Cavan filed findings & recommendations on Steve Kunnath’s motion for summary judgment and Livingston’s and Jay Porteen’s motion for summary judgment, recommending that each motion be granted. No objections were filed within 14 days as required by 28 USC 636(b)(1) and thus this Court reviews the findings & recommendations for clear error which exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” Syrax (9th Cir. 2000). After reviewing the findings & recommendations, this Court does not find that Cavan committed clear error. His proposed findings & recommendations are adopted in full.

Rebsom v. Kunnath, Livingston, and Porteen, 44 MFR 274, Cavan’s F&R 2/25/22, Watters’s adoption 3/16/22.

Suzanne Marshall (Marshall Law), Bozeman, for Rebsom; Harlan Krogh & Haley Ford (Crist, Krogh, Alke & Nord), Billings, for Kunnath, O’Neill, and LaBaty; Randall Nelson & Thomas Bancroft (Nelson Law Firm), Billings, for Livingston.

SSD: ALJ Marchioro failed to properly evaluate Clinical Social Worker’s medical opinions under new regulations, remanded to determine whether Claimant is disabled… Johnston.

Patricia Keele is 53. She earned a GED in 1990. She has experience as a ballistic tech, assistant to disabled individuals, cashier, and hotel front desk clerk. She alleges that she became disabled 11/1/17 due to COPD, PTSD, depression, and anxiety. ALJ Stephen Marchioro determined following a hearing 4/16/20 that she had the severe impairments of COPD, PTSD, depression and anxiety but that she was not disabled because she had the RFC to perform her past work as a hand packager with Remmington Arms as well as jobs that existed in significant numbers in the national economy such as dining room attendant, store laborer, sandwich maker, mail clerk, collator operator, and routing clerk. The Appeals Council denied her request for review. She appeals, arguing that Marchioro failed to properly evaluate and credit Clinical Social Worker Christine Nicklay’s opinions in accordance with SSA’s new regulations.

Nicklay works at Western Montana Mental Health Center. She provided mental treatment to Keele for 17 months through 1/26/20. She assessed Keele’s basic mental functioning 10/16/19, filing out a Medical Source Statement in which she checked boxes indicating that Keele had “marked” limitations in her ability to understand and remember, “marked to extreme” limitations in her ability to concentrate, “moderate to extreme” limitations in her ability to tolerate social interaction, and “extreme limitations” in her ability to tolerate stress and adapt to changes in the work setting. She also assessed Keele’s ability to complete an 8-hour work day and 40-hour work week. She checked boxes indicating that her mental impairments would cause her to be off-task 60% of the work day and be unable to complete a regular 40-hour work week on a regular basis without missing more than 2 days per month because “loud noises, specific smells, and unfamiliar people” cause her to “experience dissociative symptoms.” Marchioro discounted her opinions.

Keele applied for SS after 3/27/17 and Marchioro was therefore required to apply the new SS regulations when he evaluated Nicklay’s opinions. They require an ALJ to consider and evaluate the persuasiveness of all medical opinions based on some or all of these factors:

1. Supportability of the opinion.

2. Consistency of the opinion.

3. The medical source’s relationship with the claimant (including length of the treatment, frequency of examinations, purpose of the treatment, extent of the treatment, and existence of examinations.

4. The medical source’s specialization.

5. The medical source’s familiarity with other evidence in the record.

6. The medical source’s familiarity with SSD requirements.

Supportability and consistency are the most important factors. 20 CFR 404.1520c(b)(2). An ALJ must consider & discuss the supportability and consistency factors in every case. Id. He is required to consider the other factors only if he is presented with contradictory but equally persuasive medical opinions on the same issue. Id.

The supportability factor looks inward at the medical evidence presented by the medical source in support of his or her opinions. A medical opinion that is supported by significant relevant medical evidence is more persuasive and a medical opinion that is not supported by relevant medical evidence. 404.1520c(c)(1).

The consistency factor looks outward. It compares the medical source’s opinion to other medical and non-medical evidence in the record. A medical opinion that is consistent with the other medical and non-medical evidence is more persuasive than a medical opinion that is not consistent with the other medical and non-medical evidence. 404.1520c(c)(2). The ALJ must explain how he considered the supportability and consistency factors and must support his analysis with substantial evidence. Machelle H. (D.Idaho 2021).

Marchioro failed to properly address the supportability factor. He concluded that Nicklay’s opinions were unsupported because they were “rendered on a pre-printed check box form.” Opinions by a health care provider on a pre-printed form may be entitled to substantial weight if they are supported by the provider’s treatment notes. Belinda K. (D.Mont. 2022); Talbott (D.Ariz. 2020) (citing Garrison (9th Cir. 2014). The record contains a significant number of treatment notes from Nicklay during that period 8/9/18 through 1/26/20. Marchioro failed to explain why her opinions were inconsistent with her own treatment notes. His failure to support his reasoning with substantial evidence was legal error. Belinda K. (citing Embrey (9th Cir. 1988).

Marchioro also failed to apply the consistency factor to all of Nicklay’s opinions. She opined that Keele’s impairments would cause her to be off-task 60% of an average work day and be absent from work more than 2 days per month. Marchioro made no attempt to explain why these opinions were inconsistent with the other medical and non-medical evidence and rejected them without citing any inconsistent evidence. His failure to support his reasoning with substantial evidence was legal error. Belinda K.

Marchioro’s error was not harmless. The vocational expert testified that Keele would be unable to sustain employment if she was “off-task more than about 10% of the work day in addition to normal work breaks” or absent from work more than “one to two days per month on a regular basis.”

“Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke (9th Cir. 2004). Remand for an award of benefits is appropriate only where there are no outstanding issues that must be resolved before a determination of disability can be made, and it is clear from the record that the ALJ would be required to find the claimant disabled if the ALJ had properly considered all of the evidence in the record. Dominguez (9th Cir. 2015).

There are outstanding issues to be resolved. It is not clear whether Keele is disabled. Remand for further proceedings is appropriate. On remand, the ALJ should consider and discuss whether Nicklay’s opinions are supported by her treatment notes and whether they are consistent with the other medical and non-medical evidence in the record.

Keele v. SSA, 44 MFR 273, 2/28/22.

Eric Rasmusson (Rasmusson Law Offices), Missoula, and Olinsky Law Group for Keele; Special AUSA Heidi Triesch.

WILDFIRE LIABILITY: Negligence/intentional tort claims by landowners relating to FS’ communication decisions (or lack thereof) as to firing operations precluded by FTCA discretionary function exception… FS also had the legal right to conduct firing operations on out-of-state owner’s non-residential property, it did not intend for fire to travel or remain (trespass) on the properties, any emotional distress Plaintiffs suffered not “serious or severe”… Molloy.

This action involves 8 consolidated cases arising out of the 2017 Lolo Fire. Plaintiffs are Michelle & Daniel Schurg, Beccie & Chad Miller, Jackie Lowe, Maureen & Larry Ernst, Joleen & Ronnie Harvie, Mark Stermitz, Michelle Stermitz, and Brian O’Grady. All except O’Grady had a house on their property. Plaintiffs make claims sounding in intentional tort and negligence against the US. The law on which they relied when the case was filed was clarified in Esquivel (9th Cir. 2021) in a way that undermines their cases. Both sides request summary judgment. Argument was heard 1/26/22, following which the US’ motions were granted.

On 7/15/17 lightning struck 10 miles SW of Lolo and 6 miles up the South Fork Lolo Creek drainage and ignited the Lolo Fire. Because of the terrain, the Lolo National Forest Supervisor determined that the safest way to manage it was through an “indirect strategy, meaning that firefighters wait and prepare for it to reach safer terrain before actively fighting it. The Supervisor placed an order for a Type 1 Incident Management Team indicating that the fire represented the most complex type of incident. Such teams “excel at long-term planning and public communication. Plaintiffs do not dispute that such teams generally excel at these activities but dispute that the Team lived up to this expectation.

On 7/21 the Northern Rockies Coordination Center assigned Incident Commander Greg Poncin’s Team to the Fire and on 7/29 the Team internally circulated a “Structure Protection Plan for Macintosh Manor” that was prepared with the help of the Forest Service. The Plan included assessments for 900 properties and labeled each as Defensible, Standalone; Defensible, Prep & Leave; Defensible, Prep & Hold; or Non-Defensible, Prep & Leave.

By 8/1 the Fire grew north so that it encompassed over 5,000 acres. The Team described the growth on its daily posts on “InciWeb.” On 8/3 Noel Livingston took over as Incident Commander due to federal work/rest guidelines. On 8/4 FS staff provided a decision document that considered fire conditions and updates to the Management Action Points. Between 8/4 and 8/10 the Fire continued to grow north in the general direction of Plaintiffs’ properties.

Between 8/13 and 8/17 the Fire damaged Plaintiffs’ properties. At 10 p.m. on 8/16 the Missoula Co. Sheriff’s Office issued an evacuation order that included Plaintiffs. During this general period the Team utilized “firing operations” or backburns. The US disputes the severity & extent of Plaintiffs’ damages and denied any liability.

O’Grady is a Colorado resident residing in Colorado. He purchased his property in 2013 and visited it 2-3 times a year. On the evening of 8/13 the Fire had spread onto the easternmost section of his land. The parties dispute the depth of his knowledge but not that he had knowledge of the Fire from its inception. In fact, he was driving to Montana when he found out about it and checked the InciWeb “most days” for updates. The US identified him as likely to be impacted and had his phone number on the Incident Management Team’s contact list. But he contends that FS “began aerial and ground firing operations on my property without notifying me at any time.” The US admits that on 8/14 it decided to conduct firing operations but asserts that they did not occur on O’Grady’s land until 8/17. While it disputes whether it had a duty to contact him, it does not dispute that it did not contact him before the firing operations and, unlike the other Plaintiffs, it acknowledges that it conducted firing directly on his property. O’Grady argues that these operations “destroyed my forested lands, roads, culverts, and real property.”

Schurgs resided at 16252 Folsom Road. Unbeknownst to them, their home had been designated “Defensible, Stand Alone.” On 8/17 they disregarded the evacuation order and remained on their property and defended their home. They both have wildland firefighting experience. They allege that FS firefighters observed their efforts but did nothing to help. They saved their home, but parts of their property burned and they “discovered burn holes in their deck.”

Millers resided at 16485 Folsom. Unbeknownst to them, their home was designated “Defensible, Stand Alone.” On the night of 8/16 Mrs. Miller received notice that they had to evacuate from her daughter who was informed by their neighbors. Mr. Miller was away so Mrs. Miller called him to tell him about the order. She and her daughter evacuated and allegedly experienced significant difficulty evacuating their pigs, chickens, dogs, horses, and goats. Their home sustained smoke & heat damage and parts of the property and fencing were destroyed.

Jackie Lowe, Mark Stermitz, and Michelle Stermitz are tied to this case by 16595 Folsom Road. Lowe and Mark Stermitz were married but separated and Michelle is their daughter. Unbeknownst to any of them, the property was designated “Non-Defensible, Prep & Leave.” Lowe received notice of the evacuation order the evening of 8/16, apparently from Mrs. Miller. Michelle drove to the residence and helped her mother evacuate as the fire approached. Mark Stermitz learned of the threat when Michelle called him. The fire destroyed the home, shop, and real & personal property.

Ernsts resided at 16575 Folsom Road. Unbeknownst to them, their home was designated “Non-Defensible, Prep & Leave.” They attended 3-4 in-person public meetings in the weeks before 8/17 and regularly visited the fire information station. Mrs. Ernst monitored the InciWeb daily. Late on 8/16 she received a call notifying her of the evacuation order. They packed some possessions and loaded their pets into vehicles and around 11:30 p.m. a sheriff arrived and advised Mr. Ernst that the road would close around 3 a.m. They evacuated in the early hours of 8/17 but Mr. Ernst returned in defiance of the evacuation order to photograph the property. The Fire destroyed their home, metalworking shop, woodworking shop, and personal & real property.

Harvies resided at 16490 Folsom. Unbeknownst to them, FS designed their home as “Defensible, Stand Alone.” They received the evacuation order late 8/16 and left around 2 a.m. The home survived but their real property was significantly damaged and they lost personal property.

Plaintiffs’ claims nestle into 1 of 2 categories: intentional torts or negligence. From a bird’s eye view, the intentional tort claims are grounded in the allegation that FS intended fire to be on or travel onto their properties as a result of the 8/17 firing operations, while the negligence claims are largely based on the allegation that it failed to provide notice or warnings informing them that their properties and/or homes were at risk despite possessing knowledge of the risk and the ability to communicate it.

Summary judgment is granted for the US across the board, primarily because its communication methods are immunized by the discretionary function exception. Moreover, the undisputed facts show that it had the legal right to conduct firing operations on O’Grady’s property, it did not intend for fire to travel or remain on the other Plaintiffs’ properties, and any emotional distress that Plaintiffs suffered does not rise to the “serious or severe” threshold.

Plaintiffs believe the discretionary function of the FTCA does not apply and that because there are no material disputes of fact on their negligence claims they are entitled to judgment as a matter of law. Instead of basing their claims in the US’ methods for conducting firing operations or fire suppression, their negligence claims focus on its failure to provide notice or otherwise communicate with them about fire management. The US agrees that there are no material disputes of fact but argues that the discretionary function applies and thus this Court lacks jurisdiction.

While applicability of the discretionary function exception was a more open question at the time this case was filed — and even when summary judgment briefing was underway — Esquivel (9th Cir. 2021), together with Green (9th Cir. 2011), establish parameters within which Plaintiffs’ claims fail. A 2-step process determines whether the discretionary function exception applies; “First, courts must determine whether the challenged actions involve an element of judgment or choice.” Esquivel. If the element of judgment or choice is present, “the court moves to the second step and must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. Namely, the exception protects only governmental actions and decisions based on social, economic, and political policy.” If the action involves either judgment or choice, and it sounds in policy, the “action is immune from suit — and federal courts lack subject matter jurisdiction — even if the court thinks the government abused its discretion or made the wrong choice.” Id. “The plaintiff has the burden of showing there are genuine issues of fact as to whether the exception should apply, but the government bears the ultimate burden of establishing the exception applies.”

“Claims involving how the government conducts fire suppression operations are generally barred by the discretionary function.” Id. (collecting cases). But until Esquivel it was unclear to what extent communications surrounding fire suppression were also immunized. Esquivel clarified that “a communication between fire crews and property owners is covered by the discretionary function exception under 28 USC 2680(a) if such communication was based upon the performance of fire suppression operations.” Thus, determining whether the discretionary function applies to Plaintiffs’ claims that FS was negligent in failing to issue an evacuation warning before the evacuation order involves the familiar 2-step inquiry, as informed by Esquivel: (1) did the decision not to notify Plaintiffs of the possibility of evacuation involve an element of judgment or choice and (2) if so, whether that decision was based on performance of fire suppression operations.

A. Element of judgment or choice.

“An agency must exercise judgment or choice where no statute or agency policy dictates the precise manner in which the agency is to complete the challenged task.” Green. Plaintiffs point to FS’ “Deliberate Risk Management Analysis Worksheets” which state that it is to “use established [Management Action Points] to anticipate and order evacuations proactively, continue good relationships with public, and use modeling and broadcast forecasts insuring positive communication,” and argue that its decision to issue an evacuation order — but not an evacuation notice that provided more time to prepare — directly contradicted binding, thus nondiscretionary, instructions. The US responds that the type of information Plaintiffs insist they should have received — that their properties might be threatened by the Fire — was readily available to them, and their claim really takes issue with the method of communication. It also points to evidence related to FS’ communication initiatives including that in the earliest stages of the Team’s involvement it issued the “Lolo Peak Incident Decision” which articulated objectives in attacking the Fire including “communication of appropriate information with the appropriate landowners.” The record memorializes how the Team’s firefighting strategy and communication about that strategy evolved. The Worksheets state that FS should “anticipate and order evacuations proactively.” This direction says nothing about “warning” of evacuations nor does it set a timeline for what it means to be “proactive.” Thus adhering to this directive necessarily involves judgment in deciding when to “order evacuations” in a “proactive way.” Similarly, the Incident Decisions state that FS will maintain & enhance communications with landowners and emphasize “accurate, timely and positive” information. There are no parameters on what form this communication is to take. Thus the US’ communication, or lack thereof, with Plaintiffs was discretionary.

B. Policy decision.

Because the decision not to contact Plaintiffs in advance of an evacuation warning involved an element of choice, the next question is whether that conduct “reflects the exercise of judgment grounded in social, economic, or political policy.” Esquivel.

In Green, the plaintiffs owned land adjacent to an area in which a backburn was conducted but FS did not inform them of it or warn of the risk to their properties. The lower court dismissed their claims based on the discretionary function but the 9th Circuit reversed, concluding that there was no evidence that policy analysis was needed when deciding whether to notify landowners of a nearby backburn and the associated risk. It nonetheless left open the possibility that a communication decision could involve firefighting operations such as deciding how to allocate personnel, creating the perfect springboard for Esquivel.

In Esquivel, FS communicated with a plaintiff and obtained his consent before igniting a burnout on his property and implementing other defensive measures. (A burnout is designed to burn only the most flammable vegetation near the fire line.) The crew left and returned the next day to discover that the burnout had damaged 15 acres of the plaintiff’s property. The plaintiff sued, challenging the crew chief’s “statements regarding the precautionary measures that the fire crew would take while conducting the burnout.” Esquivel clarified that because “decisions regarding whether and how to perform fire suppression operations are discretionary functions rooted in policy, the discretionary function exception extends to all other conduct ‘based upon the exercise or performance’ of these operations.” Thus under Esquivel, “a communication between fire crews and property owners is covered by the discretionary function exception … if such communication was based on the performance of fire suppression operations.” The relevant inquiry is whether the communication is “part of the decision to set, and the subsequent conduct of, the [backburn] — which is undisputedly a policy-based decision covered by the discretionary function exception.” In Esquivel, unlike Green, there was a fleshed out record.

The record shows that the decision to issue an evacuation warning to the Residential Plaintiffs was tied to fire suppression operations — so closely that the order was issued seemingly as promptly as it could have been. On 8/16 at 9 p.m. the Team “held a meeting to discuss the day’s observed fire behavior and what could be expected with the coming cold front. Given information that, in the absence of firing operations the Fire would continue to expand toward residential areas, “operations staff recommended conducting firing operations along the established containment line” around O’Grady’s property. The Team discussed the pros and cons which included “the need for immediate evacuations of citizens in the area.” An hour later the Sheriff’s Office issued an evacuation order that included Plaintiffs’ residences, and InciWeb was updated to reflect the warning.

These events demonstrate that the evacuation warning was issued within 1 hour of the decision to conduct firing operations along the containment line, which means issuance of the warning was based on the firing operations. Therefore the decision not to issue an evacuation warning was also based in the exercise of these operations because such an insignificant time elapsed between the Team meeting deciding on a course of action and issuance of the evacuation order that, as a practical matter, there was no time for both a warning and an order.

Further, Plaintiffs received some form of communication (the evacuation order), which distinguishes them from Green and moves them closer to Esquivel. Like in Esquivel, issuance of the evacuation order “was not an action separate and apart from the burnout itself.” Rather, while Plaintiffs desired communication that would have provided more time to evacuate, FS did communicate the need for an evacuation based on the Team’s 8/16 discussion of what suppression operations would be implemented. The 8/16 meeting illustrates that it considered “how to allocate its communications resources between community-wide distribution and direct contact with private citizens,” Green, and discussions concerning evacuations flowed directly from conversations about conducting firing operations. The record demonstrates that both prongs of the discretionary function inquiry are met for the decision not to notify Residential Plaintiffs significantly in advance of the evacuation order.

O’Grady presents a slightly different inquiry but the discretionary function applies to his claims as well. He argues that FS failed to inform or notify him of the firing operations on his property. The US admits that it did not contact him personally, but “communicated the plan to private landowners near the proposed firing operation and continued to communicate with the public through the established communications strategy, including via InciWeb.” It offers no explanation for why he was not contacted aside from stating that he is a resident of Colorado and was residing there. Nonetheless, its decision not to notify him before conducting firing operations on his land was also rooted in policy because, unlike in Green, its conduct was tied directly to broader suppression efforts. Moreover, it is not clear what notice would have achieved as he did not have any structures or improvements and MCA 76-13-104(1)(a) authorizes firefighting on private land to suppress wildfires. This statute is also silent as to whether any notice or warning is required to the private landowners. In any event, because such notice or warning would be “based upon” suppression efforts, that communication falls within the discretionary function. Esquivel.

The discretionary function applies to FS’s communication (or lack thereof) because the communication decisions were based on policy-rooted fire suppression activities, and therefore summary judgment is granted for the US as to all of Plaintiffs’ negligence and intentional tort claims.

Plaintiffs’ intentional tort claims — trespass, conversion, and emotional distress — further suffer from other problems that warrant summary judgment for the US. They failed to show that an intentional trespass occurred because they do not establish any intent or that FS lacked the legal right to enter the properties. They also cannot show that FS caused the fire to enter onto their land. The record indicates that it progressed onto their properties due to spotting.

In support of intent as to their conversion claims, Plaintiffs argue that FS knew “the fire was on and damaging Plaintiffs’ land as firefighters were present and able to see it with their own eyes” and it “had a duty to remove the fire it had lit.” However, there is no evidence that FS lit the fire on their properties or allowed it to travel onto those properties; it was actively trying to prevent the spread onto their properties. While the allegation that firefighters did nothing to help certain Plaintiffs is troubling, they fail to establish how the alleged ambivalence gives rise to liability under conversion.

Mrs. Schurg, Mrs. Miller, Jackie Lowe, and Michelle Stermitz allege IIED as standalone causes. Since Sacco (Mont. 1995), the Montana Supreme Court has stated that an independent action for IIED “arises when a plaintiff suffers serious and severe emotional distress as a reasonably foreseeable consequence of a defendant’s intentional act or omission.” Czajkowski (Mont. 2007). It also clarified that the “extreme and outrageous” nature of a tortfeasor’s conduct is a measure by which the severity of the emotional distress may be proved.

Mrs. Miller, Jackie Lowe, and Michelle Stermitz do not allege extreme or outrageous conduct. Miller’s administrative claim statement describes her anxiety, frustration, and devastation of having to evacuate herself and her animals in the middle of the night, return to a radically altered landscape, and rehome her animals. At her deposition she stated that the cause of her distress was “specifically the evacuation process itself and just the emotions that were involved in going through that, being woken in the way that we were in a state of panic and dealing with evacuating the animals.” Similarly, Lowe’s and Michele Stermitz’s allegedly serious or severe emotional distress is based on the loss of their homes as a result of FS’ actions. Assuming arguendo that the evacuation and rehoming of animals stemmed from FS’ conduct related to the Fire, such conduct prompting the evacuation and rehoming is not “extreme or outrageous.” While these Plaintiffs claim to have been deeply upset by FS’ failure to notify them of their homes’ designations, they admit that such assessments are created for assisting firefighters in residential areas and such assessments are not public documents. Because these designations are not required to be made public, they cannot claim that their non-receipt of such designations is “utterly intolerable in a civilized community.” Czajkowski. Nor is there anything in the record suggesting that the timing of FS’s notice was “beyond all possible bounds of decency” given Plaintiffs’ own description of the threat to their properties as emerging the same day the evacuation order was issued.

Mrs. Schurg’s claim for IIED is slightly different She points to different conduct: that she fought the fire on her property, apparently while firefighters looked on and did nothing to help. The US does not argue that such inaction could or could not constitute extreme & outrageous conduct, but states that the record shows the “firefighters simply doing their level best to control and contain a wildly variable and volatile forest fire.” But there are facts that contradict its narrative, at least to Schurgs’ property.

In her administrative claim Schurg described that while they fought the fire, “three fire trucks full of fire personnel lined the road directly below their home. The personnel did not have the fire hoses out or pumps running, instead they looked on. At one point, Mr. Schurg ran down and pleaded for their assistance. The Forest Service did nothing.” In her deposition, Mrs. Schurg described “minimal firefighting efforts” and how some of her emotional distress was grounded in “the fact that the three of us saved our house, and then to look down below our house on the road and see all those firefighters standing next to their trucks watching, watching everything we did to save our house.” The US implicitly concedes some degree of truth to Schurg’s description of events by describing the events as “fire professionals [apparently Mr. and Mrs. Schurg] already using a commercial pump and firehose to eliminate fire wherever it approached the Schurg property.”

While there is no authority directly addressing whether firefighters’ failure to combat fire is “extreme and outrageous,” other authority suggests that it could meet that definition. The codification of a firefighting duty in §76-13-104(1)(a) suggests that the public could find it “utterly intolerable” that a firefighting unit would not aid civilians fighting a fire on their property,” and Stocking (Mont. 1963) recognized the important public policy of fighting fires, equating suppression with a furtherance of the public good. The alleged failure of a firefighting unit to fight a fire could be viewed as extreme & outrageous conduct. Given this factual discrepancy, the seriousness or severity of Schurg’s alleged emotional distress is considered.

“In cases where there is a physical manifestation of bodily harm resulting from emotional distress, such as PTSD, this bodily harm is sufficient evidence that the emotional distress suffered by the plaintiff is genuine and severe.” Henricksen (Mont. 2004). Schurg argues that her diagnosis of PTSD is independently sufficient to at the very least preclude summary judgment at this stage. However, the US distinguishes Henricksen on the basis that there is no expert testimony or other evidence that her PTSD involved “physical components” that would make it analogous to the PTSD in Henricksen. The note from Schurg’s therapist supports this distinction. She was seen 3 times in 9/17 and “at the conclusion of these sessions her symptoms appeared to be relieved, and she was discharged at that time.” Thus the medical evidence shows that her PTSD did not last for a significant duration. And the loss of relationships, lack of sleep, anxiety, and employment difficulties are not so severe or serious that no reasonable person could be expected to endure them. Renville (Mont. 2004). As a result, her claim of IIED fails as well.

FS does not address NIED but disputes the seriousness and severity of Plaintiffs’ alleged emotional distress. Summary judgment for the US is appropriate for 2 reasons. First, the record shows that the claimed distress of Mrs. Schurg, Mrs. Miller, Lowe, and Michelle Stermitz does not meet the requirements for “serious” or “severe.” Additionally, the evidence does not provide any support to the remaining Plaintiffs’ claims that their emotional distress is serious or severe. Even giving them the “benefit of all reasonable inferences,” the dearth of record evidence demonstrating the seriousness or severity of their claims indicates summary judgment for the US is appropriate. More broadly, their NIED claims fail to the extent that they are rooted in FS’s lack of notice of planned firing operations. The decision to provide or not provide notice is discretionary; consequently, that decision is immunized by the discretionary function. As a result, the NIED claims fail because they attempt to impose liability for conduct that the discretionary function has insulated from suit.

Summary judgment for the US.

Schurg et al v. US, 44 MFR 272, 2/8/22.

Kris McLean, Jordan Pallesi, and Tyson McLean (McLean Law Firm), Missoula, for Plaintiffs; AUSAs John Newman, Randy Tanner, and Mark Smith.