Morgen
Morgen v. United States Department of the Navy
Opinion
Lead Opinion
MEMORANDUM **
Plaintiff Donna Morgen appeals from the district court’s order dismissing her Federal Tort Claims Act (“FTCA”) action against the government for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) based on the discretionary function exception. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here.
We review the district court’s order de novo. GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir.2002). If the discretionary function exception applies, the district court lacks subject matter jurisdiction. Id.
The discretionary function exception applies when two requirements are met. Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir.2008). First, the government’s conduct must be discretionary, with no federal statute, regulation, or policy prescribing a specific course of action. Id. Second, the action or decision must involve considerations of public policy. Id. (citing Berkovitz v. United States, 486 U.S. 531, 536-37 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988)). We are to focus “not on the agent’s…