Teresa Gonzalez v. USA

Case: 16-60062 Document: 00513922359 Page: 1 Date Filed: 03/22/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-60062

Fifth Circuit

FILED

March 22, 2017

TERESA GONZALEZ, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; JOHN DOES A-Z,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Teresa Gonzalez was injured while riding her bicycle over a ramp at De

Soto National Forest. She sued various United States officials under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, alleging they failed

to inspect and maintain the bicycle trails, and failed to warn her of the hazard.

The United States moved to dismiss, arguing that the FTCA’s “discretionary

function exception” barred Gonzalez’s claims. The district court granted the

motion. We AFFIRM.

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I.

On July 28, 2012, Teresa Gonzalez and Robert Reville, Jr., went to the

De Soto National Forest to ride their bicycles at the Bethel Bicycle Trails,

which included the Couch Loop Trail. Before they began riding, Gonzalez did

not look at the bulletin board at the park’s entrance, which contained a sign

stating that the Couch Loop Trail was closed. They nevertheless embarked on

the Couch Loop Trail. At some point, they took an “alternate route” to the left

of the main trail that led to obstacles including a teeter-totter and a ramp.

Neither attempted to ride over the teeter-totter, but both decided to ride over

the ramp. Gonzalez had never jumped off a ramp before, and when she tried to

do so, she fell off and suffered serious injuries.

Gonzalez assumed that the ramp was part of the trail and built by the

Forest Service. In fact, the ramp was built illegally by Gulf Coast Bicycle Club

members, without the knowledge of the United States Forest Service (“USFS”).

The USFS employees were not aware of the ramp’s existence before Gonzalez’s

accident. They were, however, aware of an unauthorized bridge further down

the trail, which is why the Couch Loop Trail was closed on the day of Gonzalez’s

accident. 1

USFS recreational technician Charles Grice had posted a sign at the

trailhead bulletin board that stated the trail was closed, and also flagged the

bridge area with boards, signs, and ribbons. The sign at the trailhead bulletin

board stated: “Couch Trail CLOSED,” and in smaller type, “Bridge Out.” The

sign was on an 8 ½” by 11” sheet of paper. Gonzalez claims that neither she

nor Reville saw any signs, and that she would have obeyed any warning sign

she saw.

1 Gonzalez was injured on the ramp before making it to the bridge area.

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De Soto National Forest is about 382,000 acres. In 2012, Ronald Smith

was the De Soto National Forest District Ranger, the highest ranking officer

of a district. Two technicians were responsible for maintaining and inspecting

the Bethel Bicycle Trails, full-time technician Charles Grice, and part-time

technician, Anthony Bond. Grice testified that inspection and maintenance of

the trails included identifying hazards, such as trees, and performing repair

work. He spot-checked the trail and checked it when people called. If Grice

found an unauthorized structure, he reported it to the ranger. He stated that

he and Bond “bush hog the trail pretty much every year,” which includes

clearing and cleaning the trail. Grice did not know whether he had bush hogged

the teeter-totter and ramp area in 2012. The last time Grice remembered

inspecting the Couch Loop Trail before Gonzalez’s accident was when he was

inspecting a trail contractor’s work, however he could not remember when that

was. Other than checking for unsafe structures or trees and bush hogging,

there are no other scheduled inspections of the trail. Since January 2012, Grice

was also responsible for posting any warning signs at the trailhead. Grice

stated that no one instructed him about the placement of trail closure notices,

and that “[w]e just put them on the bulletin board at the trailhead areas.” Grice

and Bond were not allowed to post warning signs or close a trail without

Ranger Smith’s authority.

A number of laws, regulations and policies affect the USFS, including

the following that Gonzalez highlights in this appeal: (1) The Forest Service

Manual – FSM-2300 Recreational, Wilderness, and Related Resource

Management (“the Manual”); (2) The Forest Service Handbook – FSH 2309.18

– Trails Management Handbook (“the Handbook”); and (3) the Forest Service-

EM7100-15 Sign and Poster Guidelines for the Forest Service (“Sign and

Poster Guidelines”).

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Gonzalez filed a complaint against the United States on February 21,

2014, asserting jurisdiction under 28 U.S.C. § 1346(B)(1). She advanced

several negligence theories, essentially alleging that the United States failed

to keep its premises safe, failed to perform inspections, and failed to warn of a

dangerous condition. The United States moved to dismiss for lack of subject

matter jurisdiction, arguing that the discretionary function exception to the

FTCA’s waiver of sovereign immunity applied. It alternatively moved for

summary judgment “because no USFS employee engaged in any negligent act

or omission for which the United States may be held liable to the Plaintiff

under the FTCA.” The district court granted the motion to dismiss based on

the FTCA discretionary functions exception, not reaching the government’s

alternative argument. Gonzalez appealed.

II.

“We review the district court’s dismissal for lack of subject-matter

jurisdiction over [a plaintiff’s] FTCA claim de novo.” 2 “Lack of subject-matter

jurisdiction may be found in the complaint alone, the complaint supplemented

by the undisputed facts as evidenced in the record, or the complaint

supplemented by the undisputed facts plus the court’s resolution of the

disputed facts.” 3 The district court here based its conclusion on the complaint

and undisputed facts. 4

2 Davila v. United States, 713 F.3d 248, 255 (5th Cir. 2013) (citation omitted).

3 In re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Mississippi Plaintiffs), 668

F.3d 281, 287 (5th Cir. 2012) (citation omitted) [hereinafter In re FEMA Trailer].

4 Gonzalez contends that some facts the district court relied upon are disputed. We

find the facts pertinent to analyzing the discretionary function exception are undisputed

unless noted otherwise. See In re FEMA Trailer, 668 F.3d at 287 (court may take into account

resolved disputed facts).

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III.

The United States enjoys sovereign immunity from suit, meaning it

cannot be sued without consent. 5 “The FTCA is recognized as providing a

waiver of sovereign immunity and provides the sole basis of recovery for tort

claims against the United States.” 6 This waiver, however, “is subject to several

exceptions.” 7 The exception relevant here is the “discretionary function

exception,” 8 which “preserves the federal government’s immunity . . . when an

employee’s acts involve the exercise of judgment or choice.” 9 The exception is

found in 28 U.S.C. § 2680(a):

Any claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or

regulation, whether or not such statute or regulation be valid, or

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.

The Supreme Court has explained, “[t]he exception covers only acts that

are discretionary in nature, acts that ‘involv[e] an element of judgment or

choice,’ [] and ‘it is the nature of the conduct, rather than the status of the

actor’ that governs whether the exception applies.” 10 “The basis for the

discretionary function exception was Congress’ desire to ‘prevent judicial

“second-guessing” of legislative and administrative decisions grounded in

5 United States v. Navajo Nation, 537 U.S. 488, 502 (2003) (“It is axiomatic that the

United States may not be sued without its consent and that the existence of consent is a

prerequisite for jurisdiction.” (quotation marks and citation omitted)); In re FEMA Trailer,

668 F.3d at 287.

6 In re FEMA Trailer, 668 F.3d at 287 (citing 28 U.S.C. § 1346 and § 2671, et seq.); In

re Supreme Beef Processors, Inc., 468 F.3d 248, 252 n. 4. (5th Cir. 2006); accord Spotts v.

United States, 613 F.3d 559, 566 (5th Cir. 2010).

7 Davila, 713 F.3d at 256.

8 United States v. Gaubert, 499 U.S. 315, 320–22 (1991).

9 Tsolmon v. United States, 841 F.3d, 378, 380 (5th Cir. 2016) (citation omitted).

10 Gaubert, 499 U.S. at 322 (citations omitted).

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social, economic, and political policy through the medium of an action in

tort.’” 11

A two-prong test determines whether the exception applies: (1) “the

conduct must be a ‘matter of choice for the acting employee[;]’” 12 and (2) the

“judgment [must be] of the kind that the discretionary function exception was

designed to shield.” 13 Both prongs must be met for the exception to apply. 14

With respect to the first prong, “[i]f a statute, regulation, or policy leaves it to

a federal agency to determine when and how to take action, the agency is not

bound to act in a particular manner and the exercise of its authority is

discretionary.” 15 On the contrary, “[t]he requirement of judgment or choice is

not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow,’ because ‘the employee has no

rightful option but to adhere to the directive.’” 16 Regarding the second prong,

the court “consider[s] whether the actions taken are ‘susceptible to policy

analysis.’” 17 “[T]he proper inquiry . . . is not whether [the official] in fact

engaged in a policy analysis when reaching his decision but instead whether

his decision was ‘susceptible to policy analysis.’” 18 In performing the two-prong

test, “the question of whether the government was negligent is irrelevant.” 19

11 Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (citation

omitted).

12Spotts, 613 F.3d at 567 (quoting Berkovitz by Berkovitz, 486 U.S at 536).

13Berkovitz by Berkovitz, 486 U.S. at 536; accord Tsolmon, 841 F.3d at 382.

14 Davila, 713 F.3d at 263.

15 Spotts, 613 F.3d at 567 (citation omitted).

16 Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S., at 536)).

17 Gibson v. United States, 809 F.3d, 807, 812 (5th Cir. 2016) (citation omitted).

18 Spotts, 613 F.3d at 572 (quoting Gaubert, 499 U.S. at 325); accord In re FEMA

Trailer Formaldehyde Prod. Liab. Litig. (Louisiana Plaintiffs), 713 F.3d 807, 810 (5th Cir.

2013).

19 See Young v. United States, 769 F.3d 1047, 1054 (9th Cir. 2014) (quotation marks

and citation omitted).

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IV.

The FTCA’s discretionary function exception bars Gonzalez’s claims. The

district court categorized Gonzalez’s claims into two groups: (1) the alleged

failures to inspect and maintain the trails, and (2) the alleged failures to warn.

We adopt the same useful organization.

Gonzalez alleges the government employees failed to meet a number of

provisions from the Manual and Handbook. She argues that such provisions

prescribe a course of action and contends that “routine property maintenance

decisions are not susceptible to the kind of policy analysis shielded by the

discretionary function [exception].” Gonzalez compares the government’s

actions to those of a business operator who makes decisions about premises

safety. The Government responds that Ranger Smith and the other USFS

officials had discretion in maintaining and inspecting their trails. The

Government argues that no specific law or policy proscribed how employees

should inspect and maintain the trails, and that the Manual and Handbook

offer “general guidance.” The Government urges, “[t]he determining factor is

whether the challenged actions are ‘grounded in the policy of the regulatory

regime,’” and concludes that “trail inspection and maintenance are part of the

essence of the regulatory regime set forth in the Manual, the Handbook, and

the other applicable regulations.” The Government asserts that the USFS

balanced resources as per USFS policy, and followed the recommendations for

maintaining bicycle trails. 20

20 See The Handbook, Exhibit 01 in Chapter 10, which states for Class 3 developed

trails, which include the Bethel Bicycle Trails: “[t]ypically maintenance conducted every 1-3

years or in response to reports of trail or resource damage or significant obstacles to Managed

Use and experience level.”

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In order to determine whether an official’s conduct was discretionary, we

must first define that conduct. 21 Gonzalez generally suggests that the conduct

at issue is some version of “failing to inspect the trails as required.” The

Government, in turn, describes Gonzalez as arguing “that USFS failed to

perform required inspections and maintenance of the Bethel Bicycle Trails”

and “further . . . that the National Quality Standards for Trails mandate

hazard-free trails.” To different extents, each of the above framings assumes

that there were clearly prescribed requirements—an inquiry for the first prong

of the discretionary function test. Moreover, Gonzalez at times suggests that

Grice and Bond failed altogether to inspect the trails—but the record belies

this assertion.

The Eleventh Circuit in Autery v. United States confronted a similar

gateway framing issue. In that case, after a black locust tree in the Great

Smokey Mountain National Park fell on a car, the injured passenger and estate

of a killed passenger brought an FTCA claim against the United States. 22 In

its discretionary function analysis, “[t]he government argue[d] that the

conduct to be evaluated [was] ‘the Park Service’s decision to establish and

implement a tree inspection program. Plaintiffs, on the other hand,

contend[ed] that ‘the conduct at issue [was] the park’s failure to carry out the

mandates of its then existing policy of identifying and eliminating known

hazardous trees.’” 23 The Autery court rejected both descriptions. 24 It explained

that “[t]he tree inspection program was designed to identify which trees were

hazardous. Whether park personnel had discretion in executing that plan is

21 See Young, 769 F.3d at 1054; Autery v. United States, 992 F.2d 1523, 1527 (11th Cir.

1993) (“Before we address whether the government’s conduct violated a mandatory

regulation or policy, we must determine exactly what conduct is at issue.”).

22 Autery, 992 F.2d at 1524.

23 Id. at 1527 (citations omitted).

24 See id.

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the relevant issue.” 25 “[T]he relevant inquiry here,” the Autery Court

concluded, “is whether controlling statutes, regulations and administrative

policies mandated that the Park Service inspect for hazardous trees in a

specific manner.” 26 Similarly, the relevant inquiry in the present case is

whether the controlling policies mandated the USFS to inspect and maintain

the trails in a specific manner.

We find that they did not. Beginning with the first prong of the

discretionary function exception test, the relevant Manual and Handbook

provisions contemplate an element of choice as to how USFS employees inspect

and maintain the trails. For example, Paragraph 2353.12 in the Manual

instructs to “[m]anage each trail to meet the [trail management objectives]

identified for that trail, based on applicable land management plan direction,

travel management decisions, trail-specific decisions, and other related

direction, as well as management priorities and available resources.” This

language contains the direction to “meet” the identified objectives, but gives

room for choice based on the evaluation of various factors. Moreover, although

the objectives at 2353.02 list specific goals, they do not prescribe a certain

course employees must take to reach those goals. In this way, the

“provisions . . . contain generalized, precatory, or aspirational language that is

too general to prescribe a specific course of action for an agency or employee to

follow.” 27

The Handbook, too, contemplates that employees have some discretion

in maintaining the trails. For example, the exhibit in Chapter 10, Paragraph

18, for “trail operation and maintenance considerations” states that the

considerations are “general guidelines for developing trail prescriptions and

25 Id. at 1528.

26 Id.

27 Freeman v. United States, 556 F.3d 326, 338 (5th Cir. 2009).

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managing, operating, and maintaining National Forest System trails.” 28 It

further states that “[t]he considerations are a starting point and likely will

need to be adapted to reflect local financial capability and other

circumstances.” 29 General guidelines for maintaining a trail encompass “acts

that are discretionary in nature, acts that ‘involv[e] an element of judgment or

choice.’” 30 Here, because the “policy leaves it to a federal agency to determine

when and how to take action, the agency is not bound to act in a particular

manner and the exercise of its authority is discretionary.” 31

Gonzalez emphasizes one of the critical “National Quality Standards for

Trails” in the Handbook that states: “hazards do not exist on or along the trail.”

Gonzalez asserts, “[i]t is inconceivable that a Critical National Quality

Standard to inspect the trails to ensure that hazards do not exist and to

‘prevent immediate and permanent injury to persons or property’ is a duty left

up to the choice of low level Forestry Service personnel.” In response, the

Government points to the footnote associated with the Critical National

Quality Standards, which states “[i]f it cannot be met, action must be taken as

soon as practicable to correct or mitigate the problem.” This language

contemplates that the standard may not be met, which cuts against Gonzalez’s

claim that the standard represents a mandatory prescription. Moreover, even

if the standard that “hazards do not exist on or along the trail” is mandatory,

the standard does not dictate how officials must meet that standard—which is

what the challenged conduct concerns.

Gonzalez contends, “[i]nspecting the bicycle trail does not mean bush

hogging some portion of the trail with easy access to a tractor on occasion.” But

28 Emphasis added.

29 Emphasis added.

30 Gaubert, 499 U.S. at 322 (citations omitted).

31 Spotts, 613 F.3d at 567 (citation omitted).

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even setting aside Grice’s testimony to the contrary, Gonzalez cites to no

provision prohibiting this understanding, nor prescribing a different

understanding, of how the trails should be inspected. That the policies leave

open the question of how to inspect the trails is evidence of choice. Gonzalez

also argues that the officials were not familiar with the policies, but in doing

so shifts the focus away from the discretionary function test and toward the

merits of her negligence claims. Indeed, Grice testified he did not know what

the National Quality Standards for trails were, and that he never read the

“Trails Management Handbook, Trail Planning” document. 32 Gonzalez

emphasizes that Bond could not remember ever inspecting the area of the

Couch Loop Trail where the accident occurred, nor did he recall seeing the

regulations. Gonzalez also points out that Ranger Smith “had never read the

Forestry Service Regulations.” Gonzalez asserts, “[t]here is no ‘room for choice’

if you have no idea what the standards are for performing maintenance and

inspections to begin with.” While the officials’ lack of familiarity with the

policies may be strong evidence of a breached duty, such evidence does not

affect the inquiry at hand: whether the challenged actions contained an

element of judgment. Gonzalez’s arguments in this respect better inform the

merits of her underlying claims, rather than whether the discretionary

function exception applies. Based on the applicable policies, “there was ‘room

for choice’ in making the allegedly negligent decision” 33 to not inspect and

maintain the trails in a certain way. At most, the USFS officials abused their

discretion, but as the Court in Katrina Canal Breaches reminds, such “abuse

[is] explicitly immunized by the [discretionary function exception].” 34

32 He also agreed he never read the “forest service handbook.”

33 Ashford v. United States, 511 F.3d 501, 505 (5th Cir. 2007) (citation omitted).

34 In re Katrina Canal Breaches Litigation, 696 F.3d 436, 450 (5th Cir. 2012). 28 U.S.C.

§ 2680(a) states in part: “Any 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

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The challenged conduct also meets the second prong of the discretionary

function exception test, as the manner in which the USFS officials inspected

and maintained the trails was susceptible to policy considerations. Gonzalez

asserts that, “[t]here should be little balance when it comes to the safety of the

patrons versus the natural environment under the circumstances of this case.

Certainly in this instance, removing the hazards and inspecting for additional

hazards is reasonable and inexpensive.” However, this argument concerns

whether the officials best balanced the policy considerations, when the inquiry

is whether the challenged actions were susceptible to policy considerations.

Indeed, the purpose of the discretionary function exception is “to prevent

judicial second-guessing.” 35

In Gibson v. United States, this Court held that the discretionary

function exception was not met, because the Federal Emergency Management

Agency’s (“FEMA”) conduct in how to provide customers access to their trailers

was not susceptible to policy analysis. 36 In Gibson, the plaintiff “was at a

FEMA storage site . . . inspecting trailers that were to be sold at auction,” when

he was injured while trying to exit one. 37 Gibson brought suit under the

FTCA, 38 alleging a number of claims related to FEMA’s policies regarding

access to the trailers. 39 The government argued the discretionary function

exception applied. 40 Bypassing a determination on the first prong of the test,

this Court held “that FEMA’s decision about how customers would enter and

employee of the Government, whether or not the discretion involved be abused.” (emphasis

added).

35 Berkovitz by Berkovitz, 486 U.S. at 536–37 (quotation marks and citation omitted).

36 See 809 F.3d, 807, 816–17 (5th Cir. 2016).

37 Id. at 809.

38 Id.

39 See id. at 810 (e.g., “[f]ailing to provide stairs with handrails . . . to inspect mobile

homes”).

40 Id. at 809.

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exit the trailers was not the type of judgment the discretionary function

exception was designed to protect.” 41 The Court compared FEMA’s trailer

operation to that of a commercial business, 42 and found that decisions

regarding trailer access concerned “‘a mundane, administrative, garden-

variety, housekeeping problem that is about as far removed from the policies

applicable to . . . FEMA’s[] mission as it is possible to get.’” 43

Gonzalez cites extensively to Gibson, while the Government attempts to

distinguish it by arguing that in Gibson, the United States was acting as a

commercial business, but in the present case it is operating wilderness. The

Government’s suggestion that “wilderness cases” are distinct has merit. As the

Gibson Court pointed out, “[r]ather differently, when the Government acts as

landowner of wilderness, certain kinds of maintenance decisions have been

found to contain multiple policy considerations.” 44 The Gibson Court cited to

Theriot v. United States, 45 which concerned how the United States Army Corps

of Engineers “was to notify the public of the existence of a sill,” and Hix v. U.S.

Army Corps. of Engineers, 46 which concerned how the government was to

“replace warning signs near jetties in Galveston.” 47 Unlike those decisions,

which concerned public safety (Hix), dangerous objects, vessel traffic, and

economics (Theriot), among others, in Gibson, “the Government operated as a

commercial business and welcomed customers to its site as if it were managing

a trailer showroom.” 48

41 Id. at 813.

42 See id. at 816.

43 Id. at 816–17 (citation omitted).

44 Gibson, 809 F.3d at 815.

45 245 F.3d 388 (5th Cir. 1998).

46 155 F. App’x. 121 (5th Cir. 2005) (unpublished).

47 Gibson, 809 F.3d at 815 (citations omitted).

48 Id.

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Here, the government acts more like the manager of a wilderness area

than the operator of a commercial business. Decisions about how to maintain

bicycle trails running through 382,000 acres of land with only two recreation

technicians seem to invite, if not require, “safety, financial, and other

feasibility concerns.” 49 Such decisions implicate resource allocation, wilderness

considerations, and public safety; in other words, they are “administrative

decisions grounded in social, economic, and political policy.” 50

Gaubert teaches that “[f]or a complaint to survive a motion to dismiss, it

must allege facts which would support a finding that the challenged actions

are not the kind of conduct that can be said to be grounded in the policy of the

regulatory regime.” 51 The challenged actions here are grounded in USFS

policy. Paragraph 2353.03 of the Manual states, for example: “Emphasize long-

term cost effectiveness and need when developing or rehabilitating trails,” and

“Provide a trail system that is environmentally, socially, and financially

sustainable.” The decisions about how to inspect and maintain the bicycle

trails are susceptible to policy considerations so as to satisfy the second prong

of the discretionary function exception test.

Gonzalez’s failure to warn claims are also barred by the discretionary

function exception. Gonzalez argues that the government had a duty to warn

her about the ramp, and that, “[t]he Forestry Service Regulation do not give a

choice on how to mark a trail.” Gonzalez points to a bevy of provisions

describing sign standards, and ultimately argues, “the 8 ½ x 11 sheet of copy

paper with small black letters posted amongst other cluttered papers was not

a discretionary option for those in charge of maintenance and inspection.”

Gonzalez avers the government’s “failure to adequately warn and notify

49 Spotts, 613 F.3d at 573.

50 Berkovitz by Berkovitz, 486 U.S. at 537 (quotation marks and citation omitted).

51 Gaubert, 499 U.S. at 324–25.

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[Gonzalez] of the trail closure involves considerations of safety, not public

policy.” The Government responds by pointing out that the Couch Loop Trail

was closed due to the bridge, not the ramp. The Government insists that Grice’s

notice on the trailhead followed Guidelines recommendations, and reiterates

the district court’s conclusion that “the USFS could not possibly warn of a

hazard it did not create and of which it had no knowledge.” The Government

further contends that the decision of how to mark a trail as closed is “grounded

in social, economic, and public policy,” such as aesthetic and recreation factors,

which were similar to the policy considerations in Katrina Canal Breaches.

Once again, we must first define the challenged conduct. Gonzalez

alleges the USFS “fail[ed] to adequately warn of a known condition and further

to warn, based upon the passage of time, of a dangerous condition imputed to

the Appellee which caused the Appellant’s injuries.” 52 The Government

characterizes the challenged conduct as “how to mark the trail as closed.”

Notably, the district court found that “the record reflects that the USFS was

unaware of the ramp . . . until after this incident, such that the ramp did not

constitute a ‘known hazard.’” It further suggested that the USFS did not create

the ramp. Because “[f]actual findings are reviewed for clear error,” 53 and

because the district court’s findings are grounded in the record, this Court

accepts the findings that the USFS did not create the ramp, nor know about

the ramp. 54 Accordingly, the challenged conduct is the manner in which the

52 Gonzalez also at times asserts that the USFS failed to adequately warn people about

the bridge, but this claim falls short. Gonzalez never made it to the bridge and was not injured

on the bridge.

53 In re Katrina Canal Breaches Litig., 696 F.3d at 444 (citation omitted).

54 Gonzalez argues that the Mississippi case of Vu v. Clayton, 765 So.2d 1253 (Miss.

2000) supports her proposition that the government can be deemed to have constructive

knowledge of a hazard based on the passage of time. However, Vu concerns a business

invitee’s premises liability claim based on Mississippi law, not whether constructive

knowledge is a viable theory in an FTCA discretionary function exception analysis.

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trail was marked as closed based on a hazard not known, nor created, by the

USFS. Given this, Gonzalez has not pointed to a policy that “specifically

prescribes a course of action.” 55 Indeed, it is difficult to conceive of a provision

mandating the USFS take specific action to warn the public about unknown

hazards. 56

But even if we do not accept the district court’s findings with respect to

the USFS having no knowledge of the bridge, 57 the discretionary function

exception would still apply. The USFS’s decision to close the Couch Loop Trail

in the way it did, i.e., by posting the 8 1/2” x 11” notice at the trailhead,

“involve[ed] ‘an element of judgment or choice.’” 58 “If a statute, regulation, or

policy leaves it to a federal agency or employee to determine when and how to

take action, the agency is not bound to act in a particular manner and the

exercise of its authority is discretionary.” 59 The Sign and Poster Guidelines

grant discretion in posting closure signs. For example, Chapter 1.3,

“Principles,” provides, “[s]igns and posters shall be designed, installed,

positioned, and maintained to” “[f]ulfill a legal requirement or an important

need,” “[c]ommand attention, “[c]onvey a clear, simple meaning,” “[c]ommand

respect,” and “[g]ive adequate time for proper response.” Although one could

argue these points are mandatory, they do not prescribe how to fulfill them.

Moreover, Chapter 5.1, the introduction to the “Trail Signing” chapter, states,

55 Berkovitz by Berkovitz, 486 U.S. at 536.

56 Contra Young, 769 F.3d at 1054 (“In our view, the ‘specific allegatio[n] of agency

wrongdoing’ that we must use in determining whether the discretionary function exception

applies in this case is Plaintiffs’ allegation that NPS staff failed to warn of a known, latent

hazard that the agency itself created.”).

57 The challenged action would then be whether the controlling policies mandated the

USFS mark the trail as closed in a specific manner.

58 In re Katrina Canal Breaches Litig., 696 F.3d at 449 (citations omitted).

59 Id. (quotation marks and citation omitted).

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“[t]his chapter provides standards and guidelines for the use of signs and

posters on National Forest System trails.” 60

Still, other provisions in the Sign and Poster Guidelines contain specific

instructions. For example, Chapter 1.7.1 indicates designs, colors and “word

messages” for signs and posters. It states, “[s]tandard colors have been

established for specific purposes and types of signs. It is critical to use the

colors specified consistently and only for these purposes to facilitate sign

recognition and user response.” That being said, Table 5-1 in Chapter 5 blunts

the force of Chapter 1.7.1’s directive when it gives a “selection guide for

materials, colors, and finishes for trail signs, markers, and supports,” with

several options based on various factors. Reviewing the provisions

cumulatively, we detect the requisite element of discretion for the closure sign

at issue. 61

Gonzalez points to Chapter 13.2.4, Sign Placement and Mounting,

directing to “[p]ost signs conspicuously. Avoid cluttering signs in one location

or where objects may obscure them.” But even if this provision can be said to

prescribe a specific course of action, Chapter 13.2, discussing “Safety Signs,”

notes that “[t]hese do not include safety signs designed for roads, recreation

sites, [or] trails.” 62 Although Gonzalez argues “[t]he sign posted by Agent Grice

does not meet the standards,” she does not explain how. Gonzalez avers, “Agent

Grice acknowledged that the sign he posted did not meet the Forestry

Standards,” but does not provide support. Gonzalez asserts, “[t]he Forestry

Service Regulation[s] . . . provide the exact sign, color and instructions for

closure of trails and notification of dangerous conditions to patrons on the

60 Emphasis added.

61 See In re Katrina Canal Breaches Litig., 696 F.3d at 452 (“[T]he ostensibly

mandatory language, when read in light of the broad goals of the [policies], allowed for the

exercise of judgment and choice.” (quotation marks and citation omitted)).

62 Emphasis added.

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government’s premise.” However, Gonzalez fails to specify what provisions

regarding sign, color, and instructions the officials had no choice but to follow

with respect to creating or posting a closure sign. In short, Gonzalez fails to

identify specific provisions that mandate an approach to creating or placing

closure signs in these circumstances.

“The next question is whether the government’s decision as to the

appropriate action for [marking the trail as closed] was based on considerations

of public policy.” 63 We find it was. For instance, Chapter 5.1 of the Sign and

Poster Guidelines states, in relevant part, to select signs to consistently

provide: “Route identification,” “Guidance and distance [information],” “Safety

features, such as snow shelters and resorts,” “Route reassurance and

confirmation,” “User safety: warnings of known hazards,” “Notice of

restrictions where use control is necessary,” and “Protection of resources.”

These factors—particularly public safety and the protection of resources—are

similar to those that this Court has found satisfy the public policy prong of the

discretionary function test. 64

Gonzalez cites to Cope v. Scott, 65 for support that a government’s failure

to place warning signs did not satisfy the policy prong of the discretionary

function test. The D.C. Circuit in Cope found that “any discretion exercised by

the government with respect to where and how to post signs warning of

dangerous road conditions did not implicate ‘political, social, or economic’

63 Theriot, 245 F.3d at 399.

64 See In re Katrina Canal Breaches Litig., 696 F.3d at 452 (“The regulation instructed

the Corps to consider several factors, some technical (e.g., shore erosion and accretion) but

also many that concern policy (summarized by the catch-all ‘needs and welfare of the people’),

satisfying prong two as well.”); Theriot, 245 F.3d at 399–400 (noting policy factors like “the

degree of danger an object poses, the vessel traffic type and density, the location of the object

in relation to the navigable channel, the history of vessel accidents, and the feasibility and

economics, including costs, of erecting and maintaining physical markers in light of the

available resources”).

65 45 F.3d 445 (D.C. Cir. 1995).

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policy choices.” 66 But Cope is inapposite, as it involved signs on a roadway, not

in the wilderness. 67 Gonzalez additionally contends “[i]t is inconceivable that

the public policy considerations of a pleasant nature experience in an aesthetic

atmosphere forego basic patron safety standards.” Once again, this argument

addresses whether the officials best balanced the policy considerations, when

the inquiry is whether the challenged actions were susceptible to policy

considerations. Gonzalez further maintains, “[t]he Government offered no

evidence to show that its failure to post standard signage as required by

regulations for closures was as a result of a policy decision.” However, “the

proper inquiry . . . is not whether [the official] in fact engaged in a policy

analysis when reaching his decision but instead whether his decision was

‘susceptible to policy analysis.’” 68 Because the USFS’s decision about how to

post notice of the closed trail was based on “considerations of social, economic,

or political public policy” 69 it satisfies the second prong of the discretionary

function exception test.

AFFIRMED.

66 Cope, 45 F.3d at 446.

67 Id. at 452 (“We agree that in certain circumstances, decisions will be exempt under

the FTCA because they involve difficult policy judgments balancing the preservation of the

environment against the blight of excess signs. But this is not one of those circumstances.

Beach Drive is not the Grand Canyon’s Rim Drive, nor Shenandoah’s Skyline Drive. Here,

the Park Service has chosen to manage the road in a manner more amenable to commuting

through nature than communing with it.”).

68 Spotts, 613 F.3d at 572 (quoting Gaubert, 499 U.S. at 325)).

69 Theriot, 245 F.3d at 397 (citation omitted).

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