     Case: 16-60062   Document: 00513922359     Page: 1   Date Filed: 03/22/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                 No. 16-60062
                                                                        Fifth Circuit

                                                                      FILED
                                                                March 22, 2017

TERESA GONZALEZ,                                                 Lyle W. Cayce
                                                                      Clerk
             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; JOHN DOES A-Z,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Teresa Gonzalez was injured while riding her bicycle over a ramp at De
Soto National Forest. She sued various United States officials under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, alleging they failed
to inspect and maintain the bicycle trails, and failed to warn her of the hazard.
The United States moved to dismiss, arguing that the FTCA’s “discretionary
function exception” barred Gonzalez’s claims. The district court granted the
motion. We AFFIRM.
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                                       No. 16-60062
                                             I.
      On July 28, 2012, Teresa Gonzalez and Robert Reville, Jr., went to the
De Soto National Forest to ride their bicycles at the Bethel Bicycle Trails,
which included the Couch Loop Trail. Before they began riding, Gonzalez did
not look at the bulletin board at the park’s entrance, which contained a sign
stating that the Couch Loop Trail was closed. They nevertheless embarked on
the Couch Loop Trail. At some point, they took an “alternate route” to the left
of the main trail that led to obstacles including a teeter-totter and a ramp.
Neither attempted to ride over the teeter-totter, but both decided to ride over
the ramp. Gonzalez had never jumped off a ramp before, and when she tried to
do so, she fell off and suffered serious injuries.
      Gonzalez assumed that the ramp was part of the trail and built by the
Forest Service. In fact, the ramp was built illegally by Gulf Coast Bicycle Club
members, without the knowledge of the United States Forest Service (“USFS”).
The USFS employees were not aware of the ramp’s existence before Gonzalez’s
accident. They were, however, aware of an unauthorized bridge further down
the trail, which is why the Couch Loop Trail was closed on the day of Gonzalez’s
accident. 1
      USFS recreational technician Charles Grice had posted a sign at the
trailhead bulletin board that stated the trail was closed, and also flagged the
bridge area with boards, signs, and ribbons. The sign at the trailhead bulletin
board stated: “Couch Trail CLOSED,” and in smaller type, “Bridge Out.” The
sign was on an 8 ½” by 11” sheet of paper. Gonzalez claims that neither she
nor Reville saw any signs, and that she would have obeyed any warning sign
she saw.




      1   Gonzalez was injured on the ramp before making it to the bridge area.
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                                 No. 16-60062
      De Soto National Forest is about 382,000 acres. In 2012, Ronald Smith
was the De Soto National Forest District Ranger, the highest ranking officer
of a district. Two technicians were responsible for maintaining and inspecting
the Bethel Bicycle Trails, full-time technician Charles Grice, and part-time
technician, Anthony Bond. Grice testified that inspection and maintenance of
the trails included identifying hazards, such as trees, and performing repair
work. He spot-checked the trail and checked it when people called. If Grice
found an unauthorized structure, he reported it to the ranger. He stated that
he and Bond “bush hog the trail pretty much every year,” which includes
clearing and cleaning the trail. Grice did not know whether he had bush hogged
the teeter-totter and ramp area in 2012. The last time Grice remembered
inspecting the Couch Loop Trail before Gonzalez’s accident was when he was
inspecting a trail contractor’s work, however he could not remember when that
was. Other than checking for unsafe structures or trees and bush hogging,
there are no other scheduled inspections of the trail. Since January 2012, Grice
was also responsible for posting any warning signs at the trailhead. Grice
stated that no one instructed him about the placement of trail closure notices,
and that “[w]e just put them on the bulletin board at the trailhead areas.” Grice
and Bond were not allowed to post warning signs or close a trail without
Ranger Smith’s authority.
      A number of laws, regulations and policies affect the USFS, including
the following that Gonzalez highlights in this appeal: (1) The Forest Service
Manual – FSM-2300 Recreational, Wilderness, and Related Resource
Management (“the Manual”); (2) The Forest Service Handbook – FSH 2309.18
– Trails Management Handbook (“the Handbook”); and (3) the Forest Service-
EM7100-15 Sign and Poster Guidelines for the Forest Service (“Sign and
Poster Guidelines”).


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                                      No. 16-60062
       Gonzalez filed a complaint against the United States on February 21,
2014, asserting jurisdiction under 28 U.S.C. § 1346(B)(1). She advanced
several negligence theories, essentially alleging that the United States failed
to keep its premises safe, failed to perform inspections, and failed to warn of a
dangerous condition. The United States moved to dismiss for lack of subject
matter jurisdiction, arguing that the discretionary function exception to the
FTCA’s waiver of sovereign immunity applied. It alternatively moved for
summary judgment “because no USFS employee engaged in any negligent act
or omission for which the United States may be held liable to the Plaintiff
under the FTCA.” The district court granted the motion to dismiss based on
the FTCA discretionary functions exception, not reaching the government’s
alternative argument. Gonzalez appealed.
                                            II.
       “We review the district court’s dismissal for lack of subject-matter
jurisdiction over [a plaintiff’s] FTCA claim de novo.” 2 “Lack of subject-matter
jurisdiction may be found in the complaint alone, the complaint supplemented
by the undisputed facts as evidenced in the record, or the complaint
supplemented by the undisputed facts plus the court’s resolution of the
disputed facts.” 3 The district court here based its conclusion on the complaint
and undisputed facts. 4




       2 Davila v. United States, 713 F.3d 248, 255 (5th Cir. 2013) (citation omitted).
       3 In re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Mississippi Plaintiffs), 668
F.3d 281, 287 (5th Cir. 2012) (citation omitted) [hereinafter In re FEMA Trailer].
       4 Gonzalez contends that some facts the district court relied upon are disputed. We

find the facts pertinent to analyzing the discretionary function exception are undisputed
unless noted otherwise. See In re FEMA Trailer, 668 F.3d at 287 (court may take into account
resolved disputed facts).
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                                       No. 16-60062
                                            III.
       The United States enjoys sovereign immunity from suit, meaning it
cannot be sued without consent. 5 “The FTCA is recognized as providing a
waiver of sovereign immunity and provides the sole basis of recovery for tort
claims against the United States.” 6 This waiver, however, “is subject to several
exceptions.” 7 The exception relevant here is the “discretionary function
exception,” 8 which “preserves the federal government’s immunity . . . when an
employee’s acts involve the exercise of judgment or choice.” 9 The exception is
found in 28 U.S.C. § 2680(a):
       Any claim based upon an act or omission of an employee of the
       Government, exercising due care, in the execution of a statute or
       regulation, whether or not such statute or regulation be valid, or
       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, whether or not the
       discretion involved be abused.

       The Supreme Court has explained, “[t]he exception covers only acts that
are discretionary in nature, acts that ‘involv[e] an element of judgment or
choice,’ [] and ‘it is the nature of the conduct, rather than the status of the
actor’ that governs whether the exception applies.” 10 “The basis for the
discretionary function exception was Congress’ desire to ‘prevent judicial
“second-guessing” of legislative and administrative decisions grounded in


       5 United States v. Navajo Nation, 537 U.S. 488, 502 (2003) (“It is axiomatic that the
United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.” (quotation marks and citation omitted)); In re FEMA Trailer,
668 F.3d at 287.
       6 In re FEMA Trailer, 668 F.3d at 287 (citing 28 U.S.C. § 1346 and § 2671, et seq.); In

re Supreme Beef Processors, Inc., 468 F.3d 248, 252 n. 4. (5th Cir. 2006); accord Spotts v.
United States, 613 F.3d 559, 566 (5th Cir. 2010).
       7 Davila, 713 F.3d at 256.
       8 United States v. Gaubert, 499 U.S. 315, 320–22 (1991).
       9 Tsolmon v. United States, 841 F.3d, 378, 380 (5th Cir. 2016) (citation omitted).
       10 Gaubert, 499 U.S. at 322 (citations omitted).

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                                        No. 16-60062
social, economic, and political policy through the medium of an action in
tort.’” 11
        A two-prong test determines whether the exception applies: (1) “the
conduct must be a ‘matter of choice for the acting employee[;]’” 12 and (2) the
“judgment [must be] of the kind that the discretionary function exception was
designed to shield.” 13 Both prongs must be met for the exception to apply. 14
With respect to the first prong, “[i]f a statute, regulation, or policy leaves it to
a federal agency to determine when and how to take action, the agency is not
bound to act in a particular manner and the exercise of its authority is
discretionary.” 15 On the contrary, “[t]he requirement of judgment or choice is
not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow,’ because ‘the employee has no
rightful option but to adhere to the directive.’” 16 Regarding the second prong,
the court “consider[s] whether the actions taken are ‘susceptible to policy
analysis.’” 17 “[T]he proper inquiry . . . is not whether [the official] in fact
engaged in a policy analysis when reaching his decision but instead whether
his decision was ‘susceptible to policy analysis.’” 18 In performing the two-prong
test, “the question of whether the government was negligent is irrelevant.” 19




        11   Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (citation
omitted).
        12Spotts, 613 F.3d at 567 (quoting Berkovitz by Berkovitz, 486 U.S at 536).
        13Berkovitz by Berkovitz, 486 U.S. at 536; accord Tsolmon, 841 F.3d at 382.
       14 Davila, 713 F.3d at 263.
       15 Spotts, 613 F.3d at 567 (citation omitted).
       16 Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S., at 536)).
       17 Gibson v. United States, 809 F.3d, 807, 812 (5th Cir. 2016) (citation omitted).
       18 Spotts, 613 F.3d at 572 (quoting Gaubert, 499 U.S. at 325); accord In re FEMA

Trailer Formaldehyde Prod. Liab. Litig. (Louisiana Plaintiffs), 713 F.3d 807, 810 (5th Cir.
2013).
       19 See Young v. United States, 769 F.3d 1047, 1054 (9th Cir. 2014) (quotation marks

and citation omitted).
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                                       No. 16-60062
                                             IV.
       The FTCA’s discretionary function exception bars Gonzalez’s claims. The
district court categorized Gonzalez’s claims into two groups: (1) the alleged
failures to inspect and maintain the trails, and (2) the alleged failures to warn.
We adopt the same useful organization.
       Gonzalez alleges the government employees failed to meet a number of
provisions from the Manual and Handbook. She argues that such provisions
prescribe a course of action and contends that “routine property maintenance
decisions are not susceptible to the kind of policy analysis shielded by the
discretionary function [exception].” Gonzalez compares the government’s
actions to those of a business operator who makes decisions about premises
safety. The Government responds that Ranger Smith and the other USFS
officials had discretion in maintaining and inspecting their trails. The
Government argues that no specific law or policy proscribed how employees
should inspect and maintain the trails, and that the Manual and Handbook
offer “general guidance.” The Government urges, “[t]he determining factor is
whether the challenged actions are ‘grounded in the policy of the regulatory
regime,’” and concludes that “trail inspection and maintenance are part of the
essence of the regulatory regime set forth in the Manual, the Handbook, and
the other applicable regulations.” The Government asserts that the USFS
balanced resources as per USFS policy, and followed the recommendations for
maintaining bicycle trails. 20




       20 See The Handbook, Exhibit 01 in Chapter 10, which states for Class 3 developed
trails, which include the Bethel Bicycle Trails: “[t]ypically maintenance conducted every 1-3
years or in response to reports of trail or resource damage or significant obstacles to Managed
Use and experience level.”
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                                       No. 16-60062
       In order to determine whether an official’s conduct was discretionary, we
must first define that conduct. 21 Gonzalez generally suggests that the conduct
at issue is some version of “failing to inspect the trails as required.” The
Government, in turn, describes Gonzalez as arguing “that USFS failed to
perform required inspections and maintenance of the Bethel Bicycle Trails”
and “further . . . that the National Quality Standards for Trails mandate
hazard-free trails.” To different extents, each of the above framings assumes
that there were clearly prescribed requirements—an inquiry for the first prong
of the discretionary function test. Moreover, Gonzalez at times suggests that
Grice and Bond failed altogether to inspect the trails—but the record belies
this assertion.
       The Eleventh Circuit in Autery v. United States confronted a similar
gateway framing issue. In that case, after a black locust tree in the Great
Smokey Mountain National Park fell on a car, the injured passenger and estate
of a killed passenger brought an FTCA claim against the United States. 22 In
its discretionary function analysis, “[t]he government argue[d] that the
conduct to be evaluated [was] ‘the Park Service’s decision to establish and
implement a tree inspection program. Plaintiffs, on the other hand,
contend[ed] that ‘the conduct at issue [was] the park’s failure to carry out the
mandates of its then existing policy of identifying and eliminating known
hazardous trees.’” 23 The Autery court rejected both descriptions. 24 It explained
that “[t]he tree inspection program was designed to identify which trees were
hazardous. Whether park personnel had discretion in executing that plan is



       21 See Young, 769 F.3d at 1054; Autery v. United States, 992 F.2d 1523, 1527 (11th Cir.
1993) (“Before we address whether the government’s conduct violated a mandatory
regulation or policy, we must determine exactly what conduct is at issue.”).
       22 Autery, 992 F.2d at 1524.
       23 Id. at 1527 (citations omitted).
       24 See id.

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                                      No. 16-60062
the relevant issue.” 25 “[T]he relevant inquiry here,” the Autery Court
concluded, “is whether controlling statutes, regulations and administrative
policies mandated that the Park Service inspect for hazardous trees in a
specific manner.” 26 Similarly, the relevant inquiry in the present case is
whether the controlling policies mandated the USFS to inspect and maintain
the trails in a specific manner.
       We find that they did not. Beginning with the first prong of the
discretionary function exception test, the relevant Manual and Handbook
provisions contemplate an element of choice as to how USFS employees inspect
and maintain the trails. For example, Paragraph 2353.12 in the Manual
instructs to “[m]anage each trail to meet the [trail management objectives]
identified for that trail, based on applicable land management plan direction,
travel management decisions, trail-specific decisions, and other related
direction, as well as management priorities and available resources.” This
language contains the direction to “meet” the identified objectives, but gives
room for choice based on the evaluation of various factors. Moreover, although
the objectives at 2353.02 list specific goals, they do not prescribe a certain
course employees must take to reach those goals. In this way, the
“provisions . . . contain generalized, precatory, or aspirational language that is
too general to prescribe a specific course of action for an agency or employee to
follow.” 27
       The Handbook, too, contemplates that employees have some discretion
in maintaining the trails. For example, the exhibit in Chapter 10, Paragraph
18, for “trail operation and maintenance considerations” states that the
considerations are “general guidelines for developing trail prescriptions and


       25 Id. at 1528.
       26 Id.
       27 Freeman v. United States, 556 F.3d 326, 338 (5th Cir. 2009).

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                                      No. 16-60062
managing, operating, and maintaining National Forest System trails.” 28 It
further states that “[t]he considerations are a starting point and likely will
need to be adapted to reflect local financial capability and other
circumstances.” 29 General guidelines for maintaining a trail encompass “acts
that are discretionary in nature, acts that ‘involv[e] an element of judgment or
choice.’” 30 Here, because the “policy leaves it to a federal agency to determine
when and how to take action, the agency is not bound to act in a particular
manner and the exercise of its authority is discretionary.” 31
      Gonzalez emphasizes one of the critical “National Quality Standards for
Trails” in the Handbook that states: “hazards do not exist on or along the trail.”
Gonzalez asserts, “[i]t is inconceivable that a Critical National Quality
Standard to inspect the trails to ensure that hazards do not exist and to
‘prevent immediate and permanent injury to persons or property’ is a duty left
up to the choice of low level Forestry Service personnel.” In response, the
Government points to the footnote associated with the Critical National
Quality Standards, which states “[i]f it cannot be met, action must be taken as
soon as practicable to correct or mitigate the problem.” This language
contemplates that the standard may not be met, which cuts against Gonzalez’s
claim that the standard represents a mandatory prescription. Moreover, even
if the standard that “hazards do not exist on or along the trail” is mandatory,
the standard does not dictate how officials must meet that standard—which is
what the challenged conduct concerns.
      Gonzalez contends, “[i]nspecting the bicycle trail does not mean bush
hogging some portion of the trail with easy access to a tractor on occasion.” But



      28 Emphasis added.
      29 Emphasis added.
      30 Gaubert, 499 U.S. at 322 (citations omitted).
      31 Spotts, 613 F.3d at 567 (citation omitted).

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                                       No. 16-60062
even setting aside Grice’s testimony to the contrary, Gonzalez cites to no
provision prohibiting this understanding, nor prescribing a different
understanding, of how the trails should be inspected. That the policies leave
open the question of how to inspect the trails is evidence of choice. Gonzalez
also argues that the officials were not familiar with the policies, but in doing
so shifts the focus away from the discretionary function test and toward the
merits of her negligence claims. Indeed, Grice testified he did not know what
the National Quality Standards for trails were, and that he never read the
“Trails Management Handbook, Trail Planning” document. 32 Gonzalez
emphasizes that Bond could not remember ever inspecting the area of the
Couch Loop Trail where the accident occurred, nor did he recall seeing the
regulations. Gonzalez also points out that Ranger Smith “had never read the
Forestry Service Regulations.” Gonzalez asserts, “[t]here is no ‘room for choice’
if you have no idea what the standards are for performing maintenance and
inspections to begin with.” While the officials’ lack of familiarity with the
policies may be strong evidence of a breached duty, such evidence does not
affect the inquiry at hand: whether the challenged actions contained an
element of judgment. Gonzalez’s arguments in this respect better inform the
merits of her underlying claims, rather than whether the discretionary
function exception applies. Based on the applicable policies, “there was ‘room
for choice’ in making the allegedly negligent decision” 33 to not inspect and
maintain the trails in a certain way. At most, the USFS officials abused their
discretion, but as the Court in Katrina Canal Breaches reminds, such “abuse
[is] explicitly immunized by the [discretionary function exception].” 34


       32 He also agreed he never read the “forest service handbook.”
       33 Ashford v. United States, 511 F.3d 501, 505 (5th Cir. 2007) (citation omitted).
       34 In re Katrina Canal Breaches Litigation, 696 F.3d 436, 450 (5th Cir. 2012). 28 U.S.C.

§ 2680(a) states in part: “Any 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
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                                         No. 16-60062
       The challenged conduct also meets the second prong of the discretionary
function exception test, as the manner in which the USFS officials inspected
and maintained the trails was susceptible to policy considerations. Gonzalez
asserts that, “[t]here should be little balance when it comes to the safety of the
patrons versus the natural environment under the circumstances of this case.
Certainly in this instance, removing the hazards and inspecting for additional
hazards is reasonable and inexpensive.” However, this argument concerns
whether the officials best balanced the policy considerations, when the inquiry
is whether the challenged actions were susceptible to policy considerations.
Indeed, the purpose of the discretionary function exception is “to prevent
judicial second-guessing.” 35
       In Gibson v. United States, this Court held that the discretionary
function exception was not met, because the Federal Emergency Management
Agency’s (“FEMA”) conduct in how to provide customers access to their trailers
was not susceptible to policy analysis. 36 In Gibson, the plaintiff “was at a
FEMA storage site . . . inspecting trailers that were to be sold at auction,” when
he was injured while trying to exit one. 37 Gibson brought suit under the
FTCA, 38 alleging a number of claims related to FEMA’s policies regarding
access to the trailers. 39 The government argued the discretionary function
exception applied. 40 Bypassing a determination on the first prong of the test,
this Court held “that FEMA’s decision about how customers would enter and




employee of the Government, whether or not the discretion involved be abused.” (emphasis
added).
       35 Berkovitz by Berkovitz, 486 U.S. at 536–37 (quotation marks and citation omitted).
       36 See 809 F.3d, 807, 816–17 (5th Cir. 2016).
       37 Id. at 809.
       38 Id.
       39 See id. at 810 (e.g., “[f]ailing to provide stairs with handrails . . . to inspect mobile

homes”).
       40 Id. at 809.

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                                     No. 16-60062
exit the trailers was not the type of judgment the discretionary function
exception was designed to protect.” 41 The Court compared FEMA’s trailer
operation to that of a commercial business, 42 and found that decisions
regarding trailer access concerned “‘a mundane, administrative, garden-
variety, housekeeping problem that is about as far removed from the policies
applicable to . . . FEMA’s[] mission as it is possible to get.’” 43
      Gonzalez cites extensively to Gibson, while the Government attempts to
distinguish it by arguing that in Gibson, the United States was acting as a
commercial business, but in the present case it is operating wilderness. The
Government’s suggestion that “wilderness cases” are distinct has merit. As the
Gibson Court pointed out, “[r]ather differently, when the Government acts as
landowner of wilderness, certain kinds of maintenance decisions have been
found to contain multiple policy considerations.” 44 The Gibson Court cited to
Theriot v. United States, 45 which concerned how the United States Army Corps
of Engineers “was to notify the public of the existence of a sill,” and Hix v. U.S.
Army Corps. of Engineers, 46 which concerned how the government was to
“replace warning signs near jetties in Galveston.” 47 Unlike those decisions,
which concerned public safety (Hix), dangerous objects, vessel traffic, and
economics (Theriot), among others, in Gibson, “the Government operated as a
commercial business and welcomed customers to its site as if it were managing
a trailer showroom.” 48




      41 Id. at 813.
      42 See id. at 816.
      43 Id. at 816–17 (citation omitted).
      44 Gibson, 809 F.3d at 815.
      45 245 F.3d 388 (5th Cir. 1998).
      46 155 F. App’x. 121 (5th Cir. 2005) (unpublished).
      47 Gibson, 809 F.3d at 815 (citations omitted).
      48 Id.

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                                     No. 16-60062
      Here, the government acts more like the manager of a wilderness area
than the operator of a commercial business. Decisions about how to maintain
bicycle trails running through 382,000 acres of land with only two recreation
technicians seem to invite, if not require, “safety, financial, and other
feasibility concerns.” 49 Such decisions implicate resource allocation, wilderness
considerations, and public safety; in other words, they are “administrative
decisions grounded in social, economic, and political policy.” 50
      Gaubert teaches that “[f]or a complaint to survive a motion to dismiss, it
must allege facts which would support a finding that the challenged actions
are not the kind of conduct that can be said to be grounded in the policy of the
regulatory regime.” 51 The challenged actions here are grounded in USFS
policy. Paragraph 2353.03 of the Manual states, for example: “Emphasize long-
term cost effectiveness and need when developing or rehabilitating trails,” and
“Provide a trail system that is environmentally, socially, and financially
sustainable.” The decisions about how to inspect and maintain the bicycle
trails are susceptible to policy considerations so as to satisfy the second prong
of the discretionary function exception test.
      Gonzalez’s failure to warn claims are also barred by the discretionary
function exception. Gonzalez argues that the government had a duty to warn
her about the ramp, and that, “[t]he Forestry Service Regulation do not give a
choice on how to mark a trail.” Gonzalez points to a bevy of provisions
describing sign standards, and ultimately argues, “the 8 ½ x 11 sheet of copy
paper with small black letters posted amongst other cluttered papers was not
a discretionary option for those in charge of maintenance and inspection.”
Gonzalez avers the government’s “failure to adequately warn and notify


      49 Spotts, 613 F.3d at 573.
      50 Berkovitz by Berkovitz, 486 U.S. at 537 (quotation marks and citation omitted).
      51 Gaubert, 499 U.S. at 324–25.

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                                       No. 16-60062
[Gonzalez] of the trail closure involves considerations of safety, not public
policy.” The Government responds by pointing out that the Couch Loop Trail
was closed due to the bridge, not the ramp. The Government insists that Grice’s
notice on the trailhead followed Guidelines recommendations, and reiterates
the district court’s conclusion that “the USFS could not possibly warn of a
hazard it did not create and of which it had no knowledge.” The Government
further contends that the decision of how to mark a trail as closed is “grounded
in social, economic, and public policy,” such as aesthetic and recreation factors,
which were similar to the policy considerations in Katrina Canal Breaches.
       Once again, we must first define the challenged conduct. Gonzalez
alleges the USFS “fail[ed] to adequately warn of a known condition and further
to warn, based upon the passage of time, of a dangerous condition imputed to
the Appellee which caused the Appellant’s injuries.” 52 The Government
characterizes the challenged conduct as “how to mark the trail as closed.”
Notably, the district court found that “the record reflects that the USFS was
unaware of the ramp . . . until after this incident, such that the ramp did not
constitute a ‘known hazard.’” It further suggested that the USFS did not create
the ramp. Because “[f]actual findings are reviewed for clear error,” 53 and
because the district court’s findings are grounded in the record, this Court
accepts the findings that the USFS did not create the ramp, nor know about
the ramp. 54 Accordingly, the challenged conduct is the manner in which the



       52  Gonzalez also at times asserts that the USFS failed to adequately warn people about
the bridge, but this claim falls short. Gonzalez never made it to the bridge and was not injured
on the bridge.
        53 In re Katrina Canal Breaches Litig., 696 F.3d at 444 (citation omitted).
        54 Gonzalez argues that the Mississippi case of Vu v. Clayton, 765 So.2d 1253 (Miss.

2000) supports her proposition that the government can be deemed to have constructive
knowledge of a hazard based on the passage of time. However, Vu concerns a business
invitee’s premises liability claim based on Mississippi law, not whether constructive
knowledge is a viable theory in an FTCA discretionary function exception analysis.
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                                       No. 16-60062
trail was marked as closed based on a hazard not known, nor created, by the
USFS. Given this, Gonzalez has not pointed to a policy that “specifically
prescribes a course of action.” 55 Indeed, it is difficult to conceive of a provision
mandating the USFS take specific action to warn the public about unknown
hazards. 56
       But even if we do not accept the district court’s findings with respect to
the USFS having no knowledge of the bridge, 57 the discretionary function
exception would still apply. The USFS’s decision to close the Couch Loop Trail
in the way it did, i.e., by posting the 8 1/2” x 11” notice at the trailhead,
“involve[ed] ‘an element of judgment or choice.’” 58 “If a statute, regulation, or
policy leaves it to a federal agency or employee to determine when and how to
take action, the agency is not bound to act in a particular manner and the
exercise of its authority is discretionary.” 59 The Sign and Poster Guidelines
grant discretion in posting closure signs. For example, Chapter 1.3,
“Principles,” provides, “[s]igns and posters shall be designed, installed,
positioned, and maintained to” “[f]ulfill a legal requirement or an important
need,” “[c]ommand attention, “[c]onvey a clear, simple meaning,” “[c]ommand
respect,” and “[g]ive adequate time for proper response.” Although one could
argue these points are mandatory, they do not prescribe how to fulfill them.
Moreover, Chapter 5.1, the introduction to the “Trail Signing” chapter, states,




       55 Berkovitz by Berkovitz, 486 U.S. at 536.
       56 Contra Young, 769 F.3d at 1054 (“In our view, the ‘specific allegatio[n] of agency
wrongdoing’ that we must use in determining whether the discretionary function exception
applies in this case is Plaintiffs’ allegation that NPS staff failed to warn of a known, latent
hazard that the agency itself created.”).
       57 The challenged action would then be whether the controlling policies mandated the

USFS mark the trail as closed in a specific manner.
       58 In re Katrina Canal Breaches Litig., 696 F.3d at 449 (citations omitted).
       59 Id. (quotation marks and citation omitted).

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                                      No. 16-60062
“[t]his chapter provides standards and guidelines for the use of signs and
posters on National Forest System trails.” 60
       Still, other provisions in the Sign and Poster Guidelines contain specific
instructions. For example, Chapter 1.7.1 indicates designs, colors and “word
messages” for signs and posters. It states, “[s]tandard colors have been
established for specific purposes and types of signs. It is critical to use the
colors specified consistently and only for these purposes to facilitate sign
recognition and user response.” That being said, Table 5-1 in Chapter 5 blunts
the force of Chapter 1.7.1’s directive when it gives a “selection guide for
materials, colors, and finishes for trail signs, markers, and supports,” with
several options based on various factors. Reviewing the provisions
cumulatively, we detect the requisite element of discretion for the closure sign
at issue. 61
       Gonzalez points to Chapter 13.2.4, Sign Placement and Mounting,
directing to “[p]ost signs conspicuously. Avoid cluttering signs in one location
or where objects may obscure them.” But even if this provision can be said to
prescribe a specific course of action, Chapter 13.2, discussing “Safety Signs,”
notes that “[t]hese do not include safety signs designed for roads, recreation
sites, [or] trails.” 62 Although Gonzalez argues “[t]he sign posted by Agent Grice
does not meet the standards,” she does not explain how. Gonzalez avers, “Agent
Grice acknowledged that the sign he posted did not meet the Forestry
Standards,” but does not provide support. Gonzalez asserts, “[t]he Forestry
Service Regulation[s] . . . provide the exact sign, color and instructions for
closure of trails and notification of dangerous conditions to patrons on the


       60 Emphasis added.
       61 See In re Katrina Canal Breaches Litig., 696 F.3d at 452 (“[T]he ostensibly
mandatory language, when read in light of the broad goals of the [policies], allowed for the
exercise of judgment and choice.” (quotation marks and citation omitted)).
       62 Emphasis added.

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                                        No. 16-60062
government’s premise.” However, Gonzalez fails to specify what provisions
regarding sign, color, and instructions the officials had no choice but to follow
with respect to creating or posting a closure sign. In short, Gonzalez fails to
identify specific provisions that mandate an approach to creating or placing
closure signs in these circumstances.
        “The next question is whether the government’s decision as to the
appropriate action for [marking the trail as closed] was based on considerations
of public policy.” 63 We find it was. For instance, Chapter 5.1 of the Sign and
Poster Guidelines states, in relevant part, to select signs to consistently
provide: “Route identification,” “Guidance and distance [information],” “Safety
features, such as snow shelters and resorts,” “Route reassurance and
confirmation,” “User safety: warnings of known hazards,” “Notice of
restrictions where use control is necessary,” and “Protection of resources.”
These factors—particularly public safety and the protection of resources—are
similar to those that this Court has found satisfy the public policy prong of the
discretionary function test. 64
       Gonzalez cites to Cope v. Scott, 65 for support that a government’s failure
to place warning signs did not satisfy the policy prong of the discretionary
function test. The D.C. Circuit in Cope found that “any discretion exercised by
the government with respect to where and how to post signs warning of
dangerous road conditions did not implicate ‘political, social, or economic’


       63  Theriot, 245 F.3d at 399.
       64  See In re Katrina Canal Breaches Litig., 696 F.3d at 452 (“The regulation instructed
the Corps to consider several factors, some technical (e.g., shore erosion and accretion) but
also many that concern policy (summarized by the catch-all ‘needs and welfare of the people’),
satisfying prong two as well.”); Theriot, 245 F.3d at 399–400 (noting policy factors like “the
degree of danger an object poses, the vessel traffic type and density, the location of the object
in relation to the navigable channel, the history of vessel accidents, and the feasibility and
economics, including costs, of erecting and maintaining physical markers in light of the
available resources”).
        65 45 F.3d 445 (D.C. Cir. 1995).

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                                      No. 16-60062
policy choices.” 66 But Cope is inapposite, as it involved signs on a roadway, not
in the wilderness. 67 Gonzalez additionally contends “[i]t is inconceivable that
the public policy considerations of a pleasant nature experience in an aesthetic
atmosphere forego basic patron safety standards.” Once again, this argument
addresses whether the officials best balanced the policy considerations, when
the inquiry is whether the challenged actions were susceptible to policy
considerations. Gonzalez further maintains, “[t]he Government offered no
evidence to show that its failure to post standard signage as required by
regulations for closures was as a result of a policy decision.” However, “the
proper inquiry . . . is not whether [the official] in fact engaged in a policy
analysis when reaching his decision but instead whether his decision was
‘susceptible to policy analysis.’” 68 Because the USFS’s decision about how to
post notice of the closed trail was based on “considerations of social, economic,
or political public policy” 69 it satisfies the second prong of the discretionary
function exception test.
AFFIRMED.




       66 Cope, 45 F.3d at 446.
       67 Id. at 452 (“We agree that in certain circumstances, decisions will be exempt under
the FTCA because they involve difficult policy judgments balancing the preservation of the
environment against the blight of excess signs. But this is not one of those circumstances.
Beach Drive is not the Grand Canyon’s Rim Drive, nor Shenandoah’s Skyline Drive. Here,
the Park Service has chosen to manage the road in a manner more amenable to commuting
through nature than communing with it.”).
       68 Spotts, 613 F.3d at 572 (quoting Gaubert, 499 U.S. at 325)).
       69 Theriot, 245 F.3d at 397 (citation omitted).

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