                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 18 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GRINGO PASS, INC., an Arizona                    No. 12-15244
corporation,
                                                 D.C. No. 4:09-cv-00251-DCB
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

UNITED STATES OF AMERICA,

              Defendant - Appellee.


                   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.***




        *
             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.
      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




                                            2
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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