GRINGO PASS, INC., an Arizona corporation, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 542 F. App'x 642

MEMORANDUM 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 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, 108 S.Ct. 1954, 100 L.Ed.2d 531 (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, 108 S.Ct. 2510, 101 L.Ed.2d 442 (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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.