Bert M. Fernandez v. United States of America

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Donald E. Walter, Senior District Judge for the U.S.**
District Court for the Western District of Louisiana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERT M. FERNANDEZ,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 11-35557
D.C. No. 1:10-cv-03012 -CL
MEMORANDUM*
Appeal from the United States District Court
District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted July 9, 2012
Portland, Oregon
Before: B. FLETCHER and PREGERSON, Circuit Judges, and WALTER, District
Judge.**
Bert Fernandez (“Fernandez”) filed suit against the United States Forest
Service (“USFS”) under the Federal Tort Claims Act (“FTCA”) for its alleged
failure to remove or cause a third party to remove a tree previously identified by
FILED
SEP 07 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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the USFS as potentially dangerous. The tree in question, located in the Rogue
River-Siskiyou National Forest along Oregon State Highway 62, fell onto the
highway and came in contact with a truck driven by Fernandez, resulting in severe
physical injuries. The district court dismissed the case holding that the
discretionary function exception to the FTCA applied to preclude subject matter
jurisdiction.
We review the district court’s application of the discretionary function
exception de novo. Navarette v. United States, 500 F.3d 914, 915 (9th Cir. 2007).
The discretionary function exception preserves sovereign immunity under the
FTCA for claims “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, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a). The government bears the burden to demonstrate the
applicability of the discretionary function exception. Whisnant v. United States,
400 F.3d 1177, 1181 (9th Cir. 2005).
A two-part test is used to evaluate whether the discretionary function
exception applies. Berkovitz v. United States, 486 U.S. 531, 536-37 (1988);
Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008). First, the court
must determine whether a federal statute, regulation, or policy mandated the

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specific course of action taken, or whether the government actor maintained an
element of judgment or choice in carrying out the challenged action. Bailey v.
United States, 623 F.3d 855, 860 (9th Cir. 2010). If the government demonstrates
that the challenged action did involve an element of judgment or choice, the second
step is to determine “whether that judgment is of the kind the discretionary
function exception is designed to shield, namely only governmental actions and
decisions based on considerations of policy.” Id. (quoting Terbush, 516 F.3d at
1129). If the challenged action satisfies both prongs the government is immune
from suit and the federal courts will lack subject matter jurisdiction.
The government fails to satisfy both prongs of the two-part Berkovitz test in
this case. As to the first prong, a Memorandum of Understanding between the
USFS and the Oregon Department of Transportation requires employees of the
USFS to identify whether a tree is healthy or an “imminent” or “potential” danger
to USFS employees and the public, thus calling for some exercise of professional
judgment. However, the act of identifying a tree as an imminent or potential
danger triggers a mandatory provision, in a section entitled “Maintenance,” that
“the USFS will dispose of such jointly designated potential danger trees as
promptly as possible.” The language “will dispose” is unconditional and clearly
mandatory. While the phrase “as promptly as possible” does not provide a specific

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deadline to complete the removal of an identified tree, it must have some meaning
or it would be rendered superfluous.
The government also fails to meet the second prong of the Berkovitz test
because the removal of a previously identified dangerous tree is merely the
implementation of a decision regarding routine maintenance and/or safety, which
generally do not involve a policy weighing decision. See Bolt v. United States, 509
F.3d 1028, 1034 (9th Cir. 2007); Whisnant, 400 F.3d at 1181-82. The
implementation of a safety measure is not shielded by the discretionary function
exception unless the government must balance competing safety considerations,
which would make that decision susceptible to policy analysis. Bailey, 623 F.3d at
862-63. The determination of which order to cut down previously identified
dangerous trees is routine, requiring only technical or professional judgment about
safety and not the balancing of competing safety interests.
The discretionary function exception does not apply to provide immunity
under the FTCA given the facts of this case. Accordingly, the district court erred
in dismissing this suit for lack of subject matter jurisdiction.
REVERSED AND REMANDED.

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