                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 07 2012

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




                            FOR THE NINTH CIRCUIT



BERT M. FERNANDEZ,                               No. 11-35557

              Plaintiff-Appellant,               D.C. No. 1:10-cv-03012 -CL

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,

              Defendant-Appellee.



                    Appeal from the United States District Court
                                District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding

                        Argued and Submitted July 9, 2012
                                Portland, Oregon

Before: B. FLETCHER and PREGERSON, Circuit Judges, and WALTER, District
Judge.**

       Bert Fernandez (“Fernandez”) filed suit against the United States Forest

Service (“USFS”) under the Federal Tort Claims Act (“FTCA”) for its alleged

failure to remove or cause a third party to remove a tree previously identified by

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
the USFS as potentially dangerous. The tree in question, located in the Rogue

River-Siskiyou National Forest along Oregon State Highway 62, fell onto the

highway and came in contact with a truck driven by Fernandez, resulting in severe

physical injuries. The district court dismissed the case holding that the

discretionary function exception to the FTCA applied to preclude subject matter

jurisdiction.

       We review the district court’s application of the discretionary function

exception de novo. Navarette v. United States, 500 F.3d 914, 915 (9th Cir. 2007).

The discretionary function exception preserves sovereign immunity under the

FTCA for claims “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.”

28 U.S.C. § 2680(a). The government bears the burden to demonstrate the

applicability of the discretionary function exception. Whisnant v. United States,

400 F.3d 1177, 1181 (9th Cir. 2005).

       A two-part test is used to evaluate whether the discretionary function

exception applies. Berkovitz v. United States, 486 U.S. 531, 536-37 (1988);

Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008). First, the court

must determine whether a federal statute, regulation, or policy mandated the


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specific course of action taken, or whether the government actor maintained an

element of judgment or choice in carrying out the challenged action. Bailey v.

United States, 623 F.3d 855, 860 (9th Cir. 2010). If the government demonstrates

that the challenged action did involve an element of judgment or choice, the second

step is to determine “whether that judgment is of the kind the discretionary

function exception is designed to shield, namely only governmental actions and

decisions based on considerations of policy.” Id. (quoting Terbush, 516 F.3d at

1129). If the challenged action satisfies both prongs the government is immune

from suit and the federal courts will lack subject matter jurisdiction.

      The government fails to satisfy both prongs of the two-part Berkovitz test in

this case. As to the first prong, a Memorandum of Understanding between the

USFS and the Oregon Department of Transportation requires employees of the

USFS to identify whether a tree is healthy or an “imminent” or “potential” danger

to USFS employees and the public, thus calling for some exercise of professional

judgment. However, the act of identifying a tree as an imminent or potential

danger triggers a mandatory provision, in a section entitled “Maintenance,” that

“the USFS will dispose of such jointly designated potential danger trees as

promptly as possible.” The language “will dispose” is unconditional and clearly

mandatory. While the phrase “as promptly as possible” does not provide a specific


                                           3
deadline to complete the removal of an identified tree, it must have some meaning

or it would be rendered superfluous.

      The government also fails to meet the second prong of the Berkovitz test

because the removal of a previously identified dangerous tree is merely the

implementation of a decision regarding routine maintenance and/or safety, which

generally do not involve a policy weighing decision. See Bolt v. United States, 509

F.3d 1028, 1034 (9th Cir. 2007); Whisnant, 400 F.3d at 1181-82. The

implementation of a safety measure is not shielded by the discretionary function

exception unless the government must balance competing safety considerations,

which would make that decision susceptible to policy analysis. Bailey, 623 F.3d at

862-63. The determination of which order to cut down previously identified

dangerous trees is routine, requiring only technical or professional judgment about

safety and not the balancing of competing safety interests.

      The discretionary function exception does not apply to provide immunity

under the FTCA given the facts of this case. Accordingly, the district court erred

in dismissing this suit for lack of subject matter jurisdiction.

      REVERSED AND REMANDED.




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