GRINGO PASS, INC., an Arizona corporation v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRINGO PASS, INC., an Arizona
corporation,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 12-15244
D.C. No. 4:09-cv-00251-DCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted October 15, 2013**
San Francisco, California
Before: THOMAS and McKEOWN, Circuit Judges, and BENNETT, District
Judge.***
FILED
OCT 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.

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Gringo Pass appeals the district court’s summary judgment in favor of the
United States in this Federal Tort Claims Act (“FTCA”) action. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissal for lack of
subject matter jurisdiction, Orsay v. U.S. Dept. of Justice, 289 F.3d 1125, 1128
(9th Cir. 2002), and we affirm.
Gringo Pass argues that the discretionary function exception does not apply
to the fence design and maintenance because the bidding request, contract, and
federal regulations specifically prescribed that the fence should be built to allow
uninhibited water flows. The government contends that no federal statute or other
regulations required the fence to be built to permit free flowing flood water, and
that it had discretion in constructing and maintaining the fence based on border
security and other policy considerations.
The discretionary function exception to the FTCA protects the government
from private suit for “[a]ny claim . . . based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government,” even if the decision constitutes
an abuse of the discretion granted. 28 U.S.C. § 2680(a); see also Terbush v.
United States, 516 F.3d 1125, 1129 (9th Cir. 2008). This exemption applies when
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the action (1) involves “an element of judgment or choice” and (2) is “based on
considerations of public policy.” Berkovitz v. U.S., 486 U.S. 531, 536-37 (1988).
Here, both elements of the discretionary function exception have been met.
First, the government constructed the fence for military and security purposes that
by their nature involve “judgment as to the balancing of many technical, military,
and even social considerations,” Boyle v. United Tech. Corp, 487 U.S. 500, 511
(1988); see also Terbush, 516 F.3d at 1131 (holding the government exercised
judgment in designing waste water facilities). Second, the fence design was
predicated on border security and other policy considerations that require
government discretion. AFFIRMED.
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