Gringo Pass, Inc. v. United States

MEMORANDUM

Gringo Pass appeals the district court’s summary judgment in favor of the United States in this Federal Tort Claims Act (“FTCA”) action. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo dismissal for lack of subject matter jurisdiction, Orsay v. U.S. Dept. of Justice, 289 F.3d 1125, 1128 (9th Cir.2002), and we affirm.

Gringo Pass argues that the discretionary function exception does not apply to the fence design and maintenance because the bidding request, contract, and federal regulations specifically prescribed that the fence should be built to allow uninhibited water flows. The government contends that no federal statute or other regulations required the fence to be built to permit free flowing flood water, and that it had discretion in constructing and maintaining the fence based on border security and other policy considerations.

The discretionary function exception to the FTCA protects the government from private 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,” even if the decision…