                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JUL 20 2016

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


                            FOR THE NINTH CIRCUIT



REBECCA FLUGSTAD; BENJAMIN                       No.    14-35136
FLUGSTAD,
                                                 D.C. No. 3:13-cv-05192- RJB
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

UNITED STATES OF AMERICA;
DEPARTMENT OF THE INTERIOR;
UNITED STATES FISH AND WILDLIFE
SERVICE; LAEL SWANSON; JOHN
DOE SWANSON, and the marital
community composed thereof,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                         Argued and Submitted July 8, 2016
                               Seattle, Washington




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before:         TASHIMA, and M. SMITH, Circuit Judges, and KOBAYASHI,**
                District Judge.

      Rebecca and Benjamin Flugstad sued the United States, the Department of the

Interior, and the United States Fish and Wildlife Service (collectively, the

“government”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674,

after Rebecca fell 20 feet from a trail in the Dungeness National Wildlife Refuge

(“the Dungeness Refuge”), seriously injuring her back. The district court dismissed

the Flugstads’ claims under the discretionary function exception to the FTCA. We

have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and

remand for further proceedings.

      1.        The discretionary function exception to the FTCA “provides immunity

from 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, whether or not the discretion involved

be abused.’” Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)

(quoting 28 U.S.C. § 2680(a)). We apply a two-part test to determine whether the

discretionary function exception applies. First, we consider whether the agency’s

challenged conduct was discretionary. Young v. United States, 769 F.3d 1047, 1053

           **
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
                                           2
(9th Cir. 2014). Second, we consider “whether the particular exercise of discretion

was ‘of the kind that the discretionary function exception was designed to shield’” –

that is, whether the decision was “grounded in social, economic, and political

policy.” Id. If both parts of the test are met, the courts lack jurisdiction over the

claim.

         2.   The Flugstads contend that the government negligently constructed the

trail when, during a recent trail resurfacing project, it left portions of the trail

unsupported by footboards. This claim fails both parts of the discretionary function

test. The government’s statement of work required that the project “[p]rovide a

firm[,] durable, permeable tread surface” on the trail. Because the statement of work

did not specifically prescribe the use of footboards, the government’s construction

decisions were within its discretion. See Bailey v. United States, 623 F.3d 855, 860

(9th Cir. 2010) (“[A]n agency retains discretion whether to act where no statute or

agency policy dictates the precise manner in which the agency is to complete the

challenged task.”). For the same reason, the Flugstads’ argument based on the

Architectural Barriers Act, 42 U.S.C. § 4151 et seq., is unavailing: the standards

promulgated under that Act did not specify how the trail surface should be made

firm and stable. Under the first step of the discretionary function exception test, the

government’s conduct was discretionary.

                                             3
      Under the second step, implementing the trail resurfacing project required the

government to balance the need to maintain the natural appearance of the Dungeness

Refuge with issues of public safety, recreation, and budgetary concerns. See 16

U.S.C. §§ 668dd(4)(A)-(B), (H); see also ARA Leisure Servs. v. United States, 831

F.2d 193, 195 (9th Cir. 1987). Because the government’s construction plans and

decisions meet both prongs of the discretionary function exception test, the district

court correctly dismissed the Flugstads’ negligent construction claims for lack of

jurisdiction under the FTCA.

      3.     The Flugstads also contend that the government negligently maintained

the trail and that the resulting erosion caused Rebecca’s fall. Assuming, as we must,

that when Rebecca fell she was standing on the edge of an eroding trail that

crumbled beneath her,1 the district court had jurisdiction to consider the Flugstads’


      1
               Whether the trail was actually eroded is a disputed issue of fact. The
Flugstads’ expert testified that the trail was eroding at the point where Rebecca fell.
The government submitted affidavits stating that the trail was properly maintained
and had not eroded. The parties also dispute where Rebecca Flugstad was standing
when she fell. The Flugstads provided witness testimony indicating that Rebecca
was standing on the eroded edge of the trail; other witnesses testified that she was
standing in the trail’s vegetated shoulder. “When the jurisdictional motion
involv[es] factual issues which also go to the merits . . . the moving party should
prevail only if the material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.” Young, 769 F.3d at 1052 (internal
quotation marks and citations omitted). The district court erred in resolving the
disputed factual issues in the government’s favor before determining its jurisdiction.
                                           4
negligent maintenance claim. Although aspects of trail maintenance were within the

government’s discretion, the decision not to maintain the trail was not grounded in

social, economic, or political policy. See O’Toole v. United States, 295 F.3d 1029,

1036 (9th Cir. 2002) (“[A]n agency’s decision to forego . . . the routine maintenance

of its property – maintenance that would be expected of any other landowner – is not

the kind of policy decision that the discretionary function exception protects.”). The

government’s alleged failure to maintain the trail in this case, if proved, would

constitute “ordinary garden-variety negligence.” Allowing the claim to proceed

would “not lead to judicial second-guessing of Park Service policy decisions.” ARA

Leisure, 831 F.2d at 196 (citations omitted). Thus, the discretionary function

exception does not prevent the district court from exercising jurisdiction over the

Flugstads’ negligent maintenance claim, and the district court erred in dismissing

this claim for lack of subject matter jurisdiction.

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings. Each party shall bear her, his, or its own costs on appeal.




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