Bert Fernandez v. United States

MEMORANDUM

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 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…