                                                                            FILED
                             NOT FOR PUBLICATION                             APR 19 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT

MARY A. JASSO; et al.,                             No. 08-17582

               Plaintiffs - Appellants,            D.C. No. 2:07-cv-02769-GEB-
and                                                EFB

ILLA L. GARCIA; et al.,
                                                   MEMORANDUM *
               Plaintiffs,
  v.

UNITED STATES FOREST SERVICE,
United States Department of Agriculture;
et al.,

               Defendants - Appellees.

                     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.



          *
             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
      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




                                           2                                    08-17582
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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