FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN MORALES, Co-Personal 

Representative of the Estate of:

deceased Raymond Perry; NICOLE 

PERRY, Co-Personal Representative 

of the Estate of: deceased Raymond 

Perry; CHOPPER II LLC,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 17-15215

D.C. No.

3:14-cv-08110-

JJT

OPINION

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted March 13, 2018

San Francisco, California

Filed July 13, 2018
2 MORALES V. UNITED STATES

Before: Ferdinand F. Fernandez and M. Margaret 

McKeown, Circuit Judges, and Roger T. Benitez,* District 

Judge.

Opinion by Judge McKeown

SUMMARY**

Federal Tort Claims Act

The panel affirmed the district court’s dismissal for lack 

of subject matter jurisdiction of an action under the Federal 

Tort Claims Act (“FTCA”) on the grounds that the United 

States Geological Survey (“USGS”)’s decision not to mark 

a cable, which allegedly resulted in the crash of a helicopter, 

was driven by policy considerations and fell within the 

discretionary function exception to the FTCA.

Following the helicopter crash, the estate of pilot 

Raymond Perry, who was killed in the crash, and the owner 

of the helicopter filed this FTCA action, claiming that the 

USGS was negligent for failing to mark the cable.

The FTCA waives the government’s sovereign 

immunity for tort claims arising out of negligent conduct of 

government employees acting within the scope of 

employment. One exception to the waiver of sovereign 

immunity, is the discretionary function exception, which 

 * The Honorable Roger T. Benitez, United States District Judge for 

the Southern District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MORALES V. UNITED STATES 3

provides immunity from suit for any claim based upon the 

exercise of a discretionary duty by a federal agency or 

employee.

The panel applied the two-step process, outlined in 

Berkowitz v. United States, 486 U.S. 531 (1988), to 

determine that the discretionary function exception applied. 

First, the panel held that nothing in the USGS’s policy 

created a mandatory and specific directive to mark the fortyfoot high Verde River cableway, and the policy left 

employees with a discretionary choice about which 

cableways were hazardous and which should be marked. 

Second, the panel held that USGS’s decision was susceptible 

to policy analysis grounded in social, economic and political 

concerns. The panel rejected plaintiffs’ suggestion that the 

government could not invoke the discretionary function 

exception whenever a decision involved considerations of 

public safety.

COUNSEL

Karen Stafford (argued), Franklin L. Smith, and Scott A. 

Salmon, The Cavanagh Law Firm P.A., Phoenix, Arizona, 

for Plaintiffs-Appellants.

Benjamin M. Shultz (argued), Robert J. Gross, and Mark B.

Stern, Attorneys; Elizabeth A. Strange, Acting United States 

Attorney; Chad A. Readler, Acting Assistant Attorney 

General; Civil Division, United States Department of 

Justice, Washington, D.C.; for Defendant-Appellee.
4 MORALES V. UNITED STATES

OPINION

McKEOWN, Circuit Judge:

This appeal is one of many tort cases against the 

government in which we consider the government’s waiver 

of sovereign immunity. Under the Federal Tort Claims Act 

(the “FTCA”), the court has no jurisdiction over 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 

. . . .” 28 U.S.C. § 2680(a). The agency’s action here—a 

decision not to mark a cable suspended over a river in 

Arizona—falls squarely in this discretionary function 

exception.

In June 2012, a helicopter piloted by Raymond Perry 

crashed in the Prescott National Forest, killing Perry and his 

three passengers, after striking an unmarked cable suspended 

forty feet above the Verde River. The cable had been 

installed by the United States Geological Survey (“USGS”) 

as part of a cableway that enabled personnel to collect 

streamflow measurements and water samples. Although the 

cable was virtually invisible to aircraft pilots, USGS chose 

to place no markers or warning signs because the agency 

adopted the Federal Aviation Administration’s (“FAA”) 

obstruction regulations, which required that only objects 

more than 200 feet above ground level (hereinafter, 

“200 feet”) must be marked.

Following the accident, Perry’s estate and the owner of 

the helicopter (collectively, “Perry”) filed suit, claiming that 

USGS was negligent for failing to mark the cable. We affirm 

the district court’s dismissal of the action for lack of subject 

matter jurisdiction on the ground that USGS’s decision not 
MORALES V. UNITED STATES 5

to mark the cable was driven by policy considerations and 

fell within the discretionary function exception to the FTCA.

I. BACKGROUND

USGS is a federal agency responsible for collecting and 

examining scientific information about the “geological 

structure, mineral resources, and products of the national 

domain.” See 43 U.S.C. § 31(a). As part of these duties, 

USGS monitors the nation’s water resources, collecting 

streamflow data and water quality samples to predict floods, 

manage drinking water, evaluate water quality standards, aid 

in the preservation of aquatic habitats, and investigate 

streamflow history and climate change. This information is 

collected through “streamgage” sites—locations equipped 

with an active, continuously functioning measuring device 

which collects the mean daily streamflow in a particular 

area. When a streamgage site is installed in a location 

without a bridge or other stream crossing, USGS generally 

builds a cableway—a cable car suspended from a wire 

rope—to provide USGS personnel with safe access to the 

site.

In 1934, USGS installed a streamgage site and cableway 

over the Verde River Canyon in Prescott National Forest, 

Arizona. USGS has operated the streamgage site 

intermittently since its installation, and continuously since 

October 1988. The cable stretched 286 feet across the 

canyon at a height of forty feet above the river. Despite the 

cable being virtually invisible from 100 feet or more away, 

or to aircraft flying at the same height, USGS did not mark 

the cableway or add warning signs because the cable did not 

meet the criteria for marking under USGS policy.

Since 1980, USGS has re-examined its policy on 

marking several times, often in response to accidents 
6 MORALES V. UNITED STATES

involving cableways. One feature present in every version 

of the policy is USGS’s adoption of FAA standards 

regarding obstructions to navigable airspace and 

requirements for notice of obstructions, contained in 

14 C.F.R. pt. 77. The regulations require notification to the 

FAA for any construction or alteration of structures that 

exceed 200 feet or for structures that are located within 

20,000 feet of an airport or within 5,000 feet of a heliport. 

14 C.F.R. § 77.9.

With this in mind, we provide a brief overview of the 

specific policies in place since 1984. USGS’s policy in 1984 

was reflected in Memorandum No. 84.57 (the “1984 

Memorandum”). The policy provided that FAA regulations 

do not require marking of objects less than 200 feet, but that 

marking of certain cableways should be considered if they 

are hazardous to low-flying aircraft. USGS District offices 

were directed “to review all . . . cableway installations and 

decide which may be hazardous to low-flying aircraft,” and 

to develop “[a] plan . . . to install markers on those 

cableways designated as potentially hazardous.”

After an aircraft struck an unmarked cableway in 1995, 

USGS re-examined its marking policy. USGS considered “a 

broad policy to require the marking of all cableways,” but 

ultimately decided against it after consulting with an FAA 

Air Specialist, Ted Melland. After reviewing photographs 

and aeronautical charts for a subset of cableways, Melland 

recommended against marking any of them because none 

met the FAA criteria set forth in 14 C.F.R. § 77. Melland 

also advised against marking any USGS cableways that did 

not meet the FAA criteria. Melland observed that USGS’s 

“good intentioned efforts to mark or light certain crossings 

could be considered excessive in our well established system 

for maintaining aeronautical safety in obstruction 
MORALES V. UNITED STATES 7

evaluations nationwide,” and that marking cableways under 

200 feet could have potentially harmful effects to pilots who 

expect to see obstruction markers only at higher levels.

USGS later issued Memorandum No. 2000.13 (the 

“2000 Memorandum”), which superseded the 1984 

Memorandum. At the outset, the policy recognized that 

“Congress has charged the FAA with the responsibility to 

promote the safety of aircraft and the efficient use of 

navigable airspace.” The policy then reiterated USGS’s 

adoption of the FAA’s marking criteria set forth in 14 C.F.R. 

§ 77, specifically noting that structures exceeding 200 feet 

“should normally be marked.” It also set forth notice 

requirements for new and existing cableways, requiring 

(i) notification to the FAA of any plans for new cableways 

that will exceed 200 feet or fall within 20,000 feet of an 

airport or 5,000 feet of a heliport; (ii) that USGS District 

Chiefs verify to Regional Hydrologists that all existing 

cableways that exceed 200 feet or fall within 20,000 feet of 

an airport or 5,000 feet of a heliport have been submitted to 

the FAA; and (iii) that USGS District Chiefs verify to 

Regional Hydrologists that all existing cableways that are 

marked have been submitted to the FAA. None of these new 

requirements involved cableways under 200 feet.

In 2008, USGS issued a policy manual—Survey Manual, 

No. SM 445-2-H (the “2008 Survey Manual”)—that was 

functionally the same as the 2000 Memorandum. The 2008 

Survey Manual reiterated that it was USGS policy to comply 

with the FAA’s regulations “regarding establishment of an 

obstruction evaluation program and use of structural aircraft 

warning markers.” It also required notification to the FAA 

for “existing marked or unmarked cableways and plans for 

construction of new cableways that exceed 200 ft above the 
8 MORALES V. UNITED STATES

surrounding terrain, or structures of a lesser height within 

20,000 ft of an airport or within 5,000 ft of a heliport.”

Even though the default policy was not to mark 

cableways under 200 feet, USGS also considered sitespecific and other factors to determine whether to mark 

cableways that did not meet FAA criteria. Such 

considerations included the occurrence of past accidents at 

the site, observation of aircraft in the area, and requests from 

land-management agencies. The specific considerations 

relevant to the Verde River cableway included the absence 

of any prior accidents; the cost of installation; the physical 

risk to employees installing markers; the risk of confusion to 

pilots who expect to see markings at higher heights; the 

likelihood of vandalism by marksmen and accompanying 

economic and safety concerns; and the United States Forest 

Service’s (“USFS”) scenic integrity objectives to “minimize 

or eliminate visual distractions” in the area given the Verde 

River’s designation as a “Wild and Scenic River.”

II. ANALYSIS

A. Federal Tort Claims Act Framework

The FTCA waives the government’s sovereign 

immunity for tort claims arising out of negligent conduct of 

government employees acting within the scope of 

employment. 28 U.S.C. § 1346(b)(1). This waiver allows 

the government to be sued “under circumstances where the 

United States, if a private person, would be liable to the 

claimant in accordance with the law of the place where the 

act or omission occurred.” Id. And, of course, if there is no 

waiver, the court lacks subject matter jurisdiction, an issue 

that we review de novo. GATX/Airlog Co. v. United States, 

286 F.3d 1168, 1173 (9th Cir. 2002).
MORALES V. UNITED STATES 9

One exception to this broad waiver of sovereign 

immunity, called the discretionary function exception, 

provides immunity from 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, whether 

or not the discretion involved be abused.” 28 U.S.C. 

§ 2680(a). The purpose of this exception is to prevent 

“judicial ‘second guessing’ of legislative and administrative 

decisions grounded in social, economic, and political policy 

through the medium of an action in tort.” United States v. 

S.A. Empresa de Viacao Aerea Rio Grandense (Varig 

Airlines), 467 U.S. 797, 814 (1984). The United States bears 

the burden of proving the applicability of the discretionary 

function exception. Prescott v. United States, 973 F.2d 696, 

702 (9th Cir. 1992).

The Supreme Court established a two-step process to 

determine the applicability of the exception. See Berkovitz

v. United States, 486 U.S. 531, 536 (1988). We determine 

first whether the act is “discretionary in nature,” which 

necessarily involves an “‘element of judgment or choice.’” 

United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting 

Berkovitz, 486 U.S. at 536). The “judgment or choice” 

requirement is not met where a “federal statute, regulation, 

or policy specifically prescribes a course of action for an 

employee to follow.” Berkovitz, 486 U.S. at 536. “If there 

is such a statute or policy directing mandatory and specific 

action, the inquiry comes to an end because there can be no 

element of discretion when an employee ‘has no rightful 

option but to adhere to the directive.’” Terbush v. United 

States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting 

Berkovitz, 486 U.S. at 536).
10 MORALES V. UNITED STATES

If discretion is involved, then we consider whether the 

discretion “is of the kind that the discretionary function 

exception was designed to shield”—namely, “only 

governmental actions and decisions based on considerations 

of public policy.” Berkovitz, 486 U.S. at 536–37 (citation 

and internal quotation marks omitted). “Public policy” has 

been understood to mean considerations “grounded in social, 

economic, and political policy.” Varig Airlines, 467 U.S. at 

814. The focus is on whether the actions are “susceptible to 

a policy analysis,” not whether the government actually took 

such public policy judgements into consideration when 

making the decision. Miller v. United States, 163 F.3d 591, 

593 (9th Cir. 1998).

B. Application of the Discretionary Function 

Exception

1. Discretionary Nature of Cable Marking Policy

No federal statute, regulation, or policy specifically 

prescribed the marking of the Verde River cableway. 

Instead, the decision of whether to mark the cableway was a 

result of considered judgment and choice. The Verde River 

cableway fell within USGS’s default policy not to mark 

cableways that did not meet the FAA’s criteria under 

14 C.F.R. pt. 77—it did not exceed 200 feet and was not 

located within proximity of an airport or heliport. Nor did 

the cableway trigger any of the verification requirements set 

forth in the 2008 Survey Manual and 2000 Memorandum, 

which only applied to new cableways exceeding 200 feet, 

and existing cableways that exceeded 200 feet or were 

already marked. There was no mandatory directive within 

USGS’s policies to mark the cable.

USGS’s ability to consider factors such as competing 

safety interests, cost of installation and maintenance, and the 
MORALES V. UNITED STATES 11

effect on scenic integrity—all of which weighed against 

marking the cableway—also demonstrates that no “course of 

action” was prescribed. Berkovitz, 486 U.S. at 536. That 

USGS was able to consider such specific factors, which 

necessarily vary by site, highlights that judgment was 

involved in the decision. This is not an instance in which 

USGS’s policy identified site-specific considerations that 

mandated marking. No such guidance was provided in any 

USGS policy, so USGS employees were left to exercise their 

judgment when deciding whether to mark a particular site.

Perry’s arguments relating to the 1984 Memorandum do 

not convince us otherwise. Even if the 1984 Memorandum 

applied at the time of the accident, it did not create a 

mandatory directive to mark the cable. As with the other 

policies, the default position was to mark only those 

cableways that met FAA criteria. Although the policy 

directed USGS personnel “to review” all cableways, “decide 

which may be hazardous,” and develop a plan to install 

markers at those sites, this language cannot be construed as 

a “mandatory and specific” directive to mark the Verde 

River cableway. Rather, the policy left employees with a 

discretionary choice about which cableways were hazardous 

and which should be marked. In sum, nothing in USGS’s 

policy created a mandatory and specific directive to mark the 

forty-foot high Verde River cableway.

2. Cable Marking Policy Based on 

Considerations of “Public Policy”

The second step of the Berkovitz inquiry—whether 

USGS’s decision is susceptible to policy analysis grounded 

in social, economic, and political concerns—also cuts 

against Perry’s position. Gaubert, 499 U.S. at 323–26. This 

case is remarkably congruent with our decision in Mitchell 

v. United States, in which we held that the Bonneville Power 
12 MORALES V. UNITED STATES

Administration’s (“BPA”) decision to adopt FAA 

regulations to determine whether to mark ground wires was 

discretionary and rooted in public policy. 787 F.2d 466, 468 

(9th Cir. 1986). Mitchell’s estate sued the BPA under the 

FTCA after Mitchell crashed his plane into a ground wire 

while crop dusting a field. The BPA did not mark the wires 

because it had adopted the FAA’s standards for marking, 

which, at the time, only required marking objects exceeding 

500 feet. We reversed the district court’s conclusion that the 

discretionary function exception did not apply and 

underscored the policy nature of the agency’s decision:

The BPA did not negligently install or 

maintain warning devices, but rather, 

affirmatively decided to adopt the FAA's 

policy of not marking ground wires below 

500 feet. The Federal Aviation Act, 

49 U.S.C. § 1421 authorized the FAA to 

regulate air safety. The BPA does not have 

similar statutory authorization and therefore 

chose to rely on FAA standards regarding 

whether to mark ground wires. Its choice to 

leave air space safety standards to be set 

chiefly by the FAA was grounded in social, 

economic, and political policy. Our review 

of this decision would encroach upon the 

agency's decisionmaking process; the 

exception therefore applies and we are 

without jurisdiction to review the agency's 

decision.

Id. (citation and internal quotations marks omitted).

Like the BPA, USGS’s decision to defer to the FAA as 

the agency charged with “the responsibility to promote the 
MORALES V. UNITED STATES 13

safety of aircraft and the efficient use of navigable airspace” 

is grounded in social, economic, and political policy. USGS 

recognized the FAA’s role and expertise in regulating 

navigable airspace, and affirmatively decided to defer to the 

agency’s standards with respect to marking.

Although our analysis in Mitchell is sufficient to end the 

inquiry, it bears noting that USGS’s decision was susceptible 

to a number of additional social, economic, and political 

considerations. For example, there were competing safety 

concerns, such as the risk of confusing pilots “who expect to

see obstruction markers only at higher levels,” and the risk 

to USGS personnel tasked with installation or maintenance 

of the markers. Economic factors were also considered, such 

as the cost of installation and maintenance of the markers, 

particularly given the likelihood of vandalism. USGS also 

knew of USFS’s objective to minimize visual distractions to 

meet “scenic integrity objectives” given the Verde River’s 

designation as a “Wild and Scenic River” and bald eagle 

nesting area.

All of these considerations embody the type of policy 

concerns that the discretionary function exception is 

designed to protect, reflecting that USGS’s decision was 

based on competing policy considerations related to safety 

to aircraft, safety to USGS personnel, financial burden, 

protection of scenic integrity, and respect to the objectives 

of land-management agencies. See, e.g., Terbush, 516 F.3d 

at 1136–37 (discretionary function exception applied to a 

decision not to warn of a rockfall hazard caused by 

installation of a water management center because the 

decision involved a “process of identifying and responding 

to hazards in the wild” and “the mandates of access, 

conservation and safety were at issue . . . in identifying the 

scope of the rockfall hazard as well as the appropriate means 
14 MORALES V. UNITED STATES

of warning the public.”); Blackburn v. United States, 

100 F.3d 1426, 1433–34 (9th Cir. 1996) (discretionary 

function exception applied to decision rejecting “placement 

of barriers on or along [a] bridge” because the agency had to 

balance the needs of warning the public against “visitor 

enjoyment, preservation of the historical features of the 

bridge, the need to avoid a proliferation of man-made 

intrusions, and protection of wildlife and the general riparian 

environment”); Valdez v. United States, 56 F.3d 1177, 1180 

(9th Cir. 1995) (discretionary function exception applied to 

decision to design trail without guard rails or barriers 

because it “implicate[d] a choice between the competing 

policy considerations of maximizing access to and 

preservation of natural resources versus the need to 

minimize potential safety hazards”); Childers v. United 

States, 40 F.3d 973, 975 (9th Cir. 1994) (discretionary 

function exception applied to a decision not to warn of 

unmaintained trails because the decision was “inextricably 

linked to central policy questions” relating to access and 

preservation).

We reject the suggestion that the government cannot 

invoke the discretionary function exception whenever a 

decision involves considerations of public safety. This 

sweeping exemption would severely undermine the 

discretionary function exception and is unsupported by our 

precedent. In case after case, we have considered the 

government’s balancing of public safety with a multitude of 

other factors. See, e.g., Terbush, 516 F.3d at 1137 

(balancing safety with considerations of access and 

conservation in deciding whether to warn the public of a 

rockfall hazard); Miller, 163 F.3d at 596 (balancing public 

safety with considerations of firefighter safety, cost, and 

resource damage in deciding how to fight a forest fire);

Blackburn, 100 F.3d at 1433–34 (balancing safety with 
MORALES V. UNITED STATES 15

considerations of visitor enjoyment, preservation of 

historical features, desire to avoid proliferation of man-made 

intrusions, and protection of wildlife in deciding how to 

warn the public of the danger of diving from a bridge).

Perry’s reliance on Young v. United States to argue that 

the exception does not apply is also misplaced. 769 F.3d 

1047 (9th Cir. 2014). Young involved the National Park 

Service’s decision not to place warning signs near a 

transformer located within a national park. We held that the 

discretionary function exception did not apply because the 

decision was not susceptible to any of the government’s 

purported policy considerations. Although the government 

claimed to balance safety with access and preservation 

concerns, the transformer was not in an area of the park in 

which the agency sought to provide access, and the 

transformer itself detracted from the scenery. Thus, Young

turned on the specific facts of the case, which showed that 

the government’s decision not to install warning signs was 

“totally divorced” from the alleged policy concerns. Id. at 

1057. There must be “‘some support in the record’ that the 

particular decision the [government] made was actually 

susceptible to analysis under the policies the government 

identified.” Id. (quoting Terbush, 516 F.3d at 1134). Young

did not create a per se rule that decisions involving safety do

not trigger the exception—it is only “[c]ases in which the 

government cannot provide such support [that] delimit the 

scope of the discretionary function exception’s reach.” Id. 

Unlike in Young, USGS’s decision not to mark the cableway 

was “actually susceptible” to policy analysis, including 

deference to another agency’s expertise, competing safety 

interests, financial burden, and the effect on scenic integrity.

Our invocation of the discretionary function doctrine in 

cases involving public safety should not be read as giving 
16 MORALES V. UNITED STATES

the government a pass every time it raises the exception. We 

emphasize that the government bears the burden of 

sustaining the discretionary function exception and that the 

record must bear the weight of that burden.

Because USGS’s decision not to mark the Verde River 

cableway was discretionary and grounded in social, 

economic, and political concerns, we affirm the district 

court’s dismissal for lack of subject matter jurisdiction.

AFFIRMED.