Meram v. United States Department of Agriculture ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JIM MERAM and MAYSOON MERAM, No. 14-55202
Plaintiffs - Appellants, D.C. No. 3:12-cv-02612-H-WMC
v.
MEMORANDUM*
UNITED STATES DEPARTMENT OF
AGRICULTURE and DOES, 1 through
100, inclusive,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted February 8, 2016
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Jim Meram and Maysoon Meram appeal the district court’s granting of a
motion to dismiss, which held that the court lacked subject matter jurisdiction on
the basis of the discretionary function exception to the Federal Tort Claims Act, 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 2680(a). We review de novo the district court’s grant of a motion to
dismiss for lack of subject matter jurisdiction under the discretionary function
exception. We affirm.
The Merams contend that the United States Department of Agriculture,
Forest Service (“Forest Service”) violated its mandatory duty to locate a sign “in
advance of the junction such that trail junctions are evident,” and that Joseph
Meram would not have taken the unmarked, user-made trail if there had been a
sign in advance of the junction of the trails. However, the mandatory duty imposed
on the Forest Service by its Sign and Poster Guidelines is disjunctive—“[s]igns
shall be located either at the junction or in advance of the junction such that trail
junctions are evident.” EM 7100-15, § 5.3 (emphasis added). The Forest Service
fulfilled its mandatory duty by placing a sign at the junction.
In omitting to mark or decommission the user-created path on which Meram
turned, the Forest Service exercised a discretionary function within the meaning of
28 U.S.C. § 2680(a), and the district court lacked subject matter jurisdiction over
the Merams’ claims.
AFFIRMED.
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