Fang ex rel. Fang v. United States

Plaintiff appeals the district court’s grant of summary judgment in favor of the United States which dismissed her claims for lack of subject matter jurisdiction. The court found that the claims challenged discretionary functions as contemplated by 28 U.S.C. § 2680 (a), which exempts certain conduct from the limited waiver of sovereign immunity created by the Federal Tort Claims Act, 28 U.S.C. § 1346 (b) et seq. (“FTCA”). Plaintiff additionally appeals the district court’s dismissal of her remaining state claims pursuant to 28 U.S.C. § 1367 (c)(3), which permits a court to decline to exercise jurisdiction over supplemental state claims when all of the claims over which the court had original jurisdiction have been dismissed.

We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part and reverse in part.

I.

On September 3, 1994, Freda Fang (“Fang”) was a passenger in a 1988 Toyota Camry travelling through Sequoia National Park. While travelling down a hill in one of the least visited sections of the park, the car’s brakes failed. The vehicle left the roadway, proceeded over an embankment, and plunged approximately 210 feet down the side of a mountain with a 45-degree slope.…