Mary A. Jasso; v. UNITED STATES FOREST SERVICE, United States Department of Agriculture;

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).
08-17582
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY A. JASSO; et al.,
Plaintiffs - Appellants,
and
ILLA L. GARCIA; et al.,
Plaintiffs,
v.
UNITED STATES FOREST SERVICE,
United States Department of Agriculture;
et al.,
Defendants - Appellees.
No. 08-17582
D.C. No. 2:07-cv-02769-GEB-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted April 5, 2010**
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
FILED
APR 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-17582 2
Plaintiffs Mary A. Jasso and members of her family appeal pro se from the
district court’s judgment dismissing their Federal Tort Claims Act (“FTCA”)
action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo
a dismissal for lack of subject matter jurisdiction under the FTCA’s discretionary
function exception. Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008).
We affirm.
The district court properly dismissed the action because the United States —
the only proper party — met the requirements of the discretionary function
exception. See 28 U.S.C. § 2679(d)(1) (providing that, upon certification that
employees were acting within scope of their U.S. government employment, the
action shall be deemed an action against the United States which shall be
substituted as the defendant); Terbush, 516 F.3d at 1129 (recognizing discretionary
function exception applies if (a) the government’s conduct was discretionary, with
no federal statute, regulation, or policy prescribing a specific course of action, and
(b) the action or decision involves considerations of public policy); In re Consol.
U.S. Atmospheric Testing Litig., 820 F.2d 982, 993-999 (9th Cir. 1987) (holding

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discretionary function exception applied to claims against United States for
radiation exposure from nuclear weapons testing).
The plaintiffs’ remaining contentions, including those regarding
constitutional violations whether framed under 42 U.S.C. § 1983 or Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), are
unpersuasive.
AFFIRMED.

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