                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 15-1524

                JOSÉ E. VALDEZ, MARÍA A. VALDEZ,

                       Plaintiffs, Appellants,

                                     v.

                     UNITED STATES OF AMERICA,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]


                                  Before

                    Howard, Chief Judge, and
              Torruella and Lipez, Circuit Judges.


     Benjamín Morales del Valle, with whom Morales-Morales Law
Offices was on brief, for appellants.
     John S. Koppel, Attorney, Appellate Staff, Civil Division,
U.S. Department of Justice, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez,
United States Attorney, and Mark B. Stern, Attorney, Appellate
Staff, Civil Division, were on brief, for appellee.


                            August 16, 2016
            LIPEZ,     Circuit    Judge.           This   case   requires    a

straightforward       application    of     the     discretionary    function

exception to the Federal Tort Claims Act (FTCA).             Plaintiffs sued

the United States for negligence after a slip-and-fall in a

national forest, claiming that the FTCA waives sovereign immunity

for their suit.      They concede that the relevant government conduct

was discretionary, but attempt to avoid the discretionary function

exception on the ground that the conduct was not an exercise of

policy judgment.       Because their argument is foreclosed by the

precedents of this court, we affirm.

                                     I.

            The relevant facts are undisputed.             On September 29,

2012, plaintiffs Maria and Jose Valdez visited El Yunque National

Forest, a tropical rain forest in Puerto Rico administered by the

United States Forest Service.        They walked on one of the park's

trails on their way to La Coca Falls.             Roughly a mile into their

walk, Maria slipped and fell, injuring her right hand and wrist.

Plaintiffs claim that the fall -- and, hence, Maria's resulting

injuries,   her   subsequent     surgery,    and    the   couple's   emotional

distress -- were caused by the slippery trail conditions and the

lack of handrails and posted warnings on the trail.              After their

administrative complaint to the Forest Service went unanswered,

plaintiffs brought this action against the United States pursuant

to Puerto Rico's general negligence statute, i.e., Article 1802 of


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the Civil Code, see P.R. Laws Ann. tit. 31, § 5141, and the FTCA,

see 28 U.S.C. §§ 1346(b), 2671-80.            The parties consented to

proceed before a magistrate judge.         See 28 U.S.C. § 636(c).     The

government then moved to dismiss, claiming that the discretionary

function   exception   applied,   and     therefore   sovereign   immunity

prevented the district court from hearing plaintiffs' suit.           The

district court agreed and dismissed the case.         Plaintiffs appeal,

and we review the judgment de novo.        See Murphy v. United States,

45 F.3d 520, 522 (1st Cir. 1995).

                                   II.

           The FTCA waives the government's sovereign immunity for

certain tort claims, but the statute contains exceptions.            See,

e.g., Mahon v. United States, 742 F.3d 11, 12 (1st Cir. 2014).

One exception applies where a claim is "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."          Id. (quoting

28 U.S.C. § 2680(a)).    A "well-established framework" governs the

application of the discretionary function exception.          Carroll v.

United States, 661 F.3d 87, 99 (1st Cir. 2011).             To determine

whether the exception applies, we first identify the government

conduct that allegedly harmed the plaintiffs.         Mahon, 742 F.3d at

14.

           We then ask two questions: first, whether that conduct

is discretionary, meaning that it "involve[s] choice," id., and is


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not dictated by a "statute, regulation, or policy," id. (quoting

Berkovitz v. United States, 486 U.S. 531, 536 (1988)).         Second, if

it is discretionary, we then "must ask 'whether the exercise or

non-exercise of the granted discretion is actually or potentially'

affected by policy-related judgments."         Id. (quoting Fothergill v.

United States, 566 F.3d 248, 252 (1st Cir. 2009)).            We presume

that the answer to the second question is "yes," though that

presumption may be rebutted.     See id. ("[T]he law presumes that

discretionary acts involve policy judgments."); see also United

States v. Gaubert, 499 U.S. 315, 324 (1991) ("[I]f a regulation

allows   the   employee   discretion,    the    very   existence   of   the

regulation creates a strong presumption that a discretionary act

authorized by the regulation involves consideration of the same

policies which led to the promulgation of the regulations.").

"'[Y]es' answers to both questions mean the discretionary-function

exception holds sway and sovereign immunity blocks the litigation.

But a 'no' answer to either question means the exception does not

apply and the suit may continue."       Mahon, 742 F.3d at 14.

           The magistrate judge described the relevant conduct as

follows.   "The conduct of which Plaintiffs complain is the United

States Forest Service's decisions (1) not to warn of slippery rock

on the La Coca trail, (2) not to eliminate the cause of that

slipperiness, and/or (3) not install handrails on the trail."

Valdez v. United States, No. 3:13-cv-01606-SCC, slip op. at 3-4


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(D.P.R. Mar. 12, 2015).            The parties find no fault with this

characterization.

             As to the first question, the magistrate judge noted

that the manuals and policies governing the maintenance of trails

in national forests "suggest that the Forest Service had no

specific mandate regarding the posting of signs, maintenance of

trails, or installation of safety devices," id. at 4 n.3, and

"conclude[d] that the Forest Service's conduct was discretionary

in all relevant respects," id. at 5.          On appeal, plaintiffs waive

any   contention    that    the    Forest    Service's   actions   were    not

discretionary,     stating    that     the    district   court     "correctly

established that . . . the United States Forest Service didn't

have a prescribed course of action for the employee to follow in

terms of maintenance, notice and/or lack of security equipment."

             Moving to the second step of the analysis, the question

is whether plaintiffs have rebutted the presumption that the

government's exercise of discretion was "policy-driven -- that is,

. . . fueled by 'variables about which reasonable persons can

differ.'"    Mahon, 742 F.3d at 16 (quoting Fothergill, 566 F.3d at

253).       Unfortunately    for    plaintiffs,   they   labor     under   the

misapprehension that it is an open question who should bear the

burden of showing that the government's discretionary conduct is

policy-driven.     Proceeding on this erroneous understanding, they

do not attempt to rebut the presumption that the government's


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conduct was grounded in policy, and instead ask us to hold that

"the burden of establishing the regulatory policy should rest on

the government," and that "the government has failed to articulate

how" the Forest Service's conduct "involved a judgment grounded in

regulatory policy."*      But, as noted above, this argument runs

contrary to established precedent.        See, e.g., Bolduc v. United

States, 402 F.3d 50, 62 (1st Cir. 2005) ("[T]he government benefits

from the presumption that a supervisor's discretionary acts are

grounded in policy.      It is the plaintiff's burden to rebut this

presumption and demonstrate that particular discretionary conduct

is   not   susceptible   to   policy-related   judgments."   (citations

omitted)).

             Even if plaintiffs had properly recognized that it was

their burden to show that the Forest Service's discretionary

decisions were not grounded in policy, it is unlikely that they

could have done so.      Our opinions in Mahon and Shansky v. United

States, 164 F.3d 688 (1st Cir. 1999), leave little doubt that such

decisions involve policy tradeoffs.       In Mahon, we considered the

National Park Service's choice of whether to raise the height of

the railings on the second-story portico of a 19th-century mansion




      *The government contends that plaintiffs may not make this
argument because they failed to raise it below. See Rivera-Díaz
v. Humana Ins. of P.R., Inc., 748 F.3d 387, 391 (1st Cir. 2014).
We need not address this contention because the argument fails in
any event.


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preserved as a national historic site, and held that the balance

of "'efficiency, safety, aesthetics, and cost'" inherent in that

choice was "the stuff of policy analysis." 742 F.3d at 16 (quoting

Fothergill, 566 F.3d at 253).        In Shansky, we considered the lack

of handrails and warning signs at a historic building and held

that   "the    government's   ultimate   policy   justification   is   that

forgoing handrails and warning signs at the Northern Exit was the

product of a broader judgment call that favored aesthetics over

safety.   Aesthetic considerations, including decisions to preserve

the    historical    accuracy   of     national   landmarks,   constitute

legitimate policy concerns."      164 F.3d at 693.

              Cases from our sister circuits reinforce our conclusion

that the tradeoffs between safety and aesthetics involved in

placing guardrails or signs in scenic wilderness areas are matters

of policy.     See Zumwalt v. United States, 928 F.2d 951, 955 (10th

Cir. 1991) ("[T]he absence of warning signs was part of the overall

policy decision to maintain the [Balconies Cave] Trail in its

wilderness state."); Bowman v. United States, 820 F.2d 1393, 1393,

1395 (4th Cir. 1987) (holding that the decision not to install a

guardrail on the Blue Ridge Parkway, a highway "intended" for

"driving and sight-seeing" on the way to "scenic recreational and

wilderness areas," was "the result of a policy judgment").



              Affirmed.


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