Navarette v. United States
500 F.3d 914
9th Cir.
2007
Check Treatment
Docket

*1 аlthough it raises a matter of law— Phan committed possibility

distinct —that by making a material mis- fraud securities therefore reverse

statement. We summary in favor of the judgment

grant but affirm the denial

SEC on these claims summary judgment. motion for

of Phan’s pen- court’s award of

Because the district Phan injunctive against

alties and relief the determination that partly based on provisions, we

he violated the antifraud except per-

also vacate that award injunction Phan from prohibiting

manent

violating 5. Section part; REVERSED

AFFIRMED part. REMANDED

part; VACATED proceedings consistent with

for further opinion. party shall bear its Each appeal.

own cost on NAVARETTE, Angel

Ricardo

Plaintiff-Appellant,

Kelly Kaslar, Plaintiff, America,

UNITED STATES

Defendant-Appellee.

No. 05-16915. Appeals,

United States Court

Ninth Circuit. July 2007.

Argued and Submitted Aug.

Filed *2 (argued), ing group Lisa M. Sit- with his brother and a of Mends Amitai Schwartz at Schwartz, a site numbered “C-88.” Navarette and kin, Em- of Amitai Law Offices Mend, Kaslar, Kelly walked down an CA, eryville, plaintiff-appellant. for the path unmarked from site C-88 in the di- Ryan, Attorney, States Kevin V. flashlights rection of visible at another Chief, Division, Swanson, M. Civil Joann campsite. path directly The led to the (argued), Assistant P. Martikan Owen edge of a cliff. Navarette and Kaslar fell Francisco, Attorney, San United States approximatеly off the cliff and fell 30 feet CA, defendant-appellee. for the to the rocks below. Navarette suffered a that, injury according physicians’ brain affect reports, permanently will his func- tioning. to the cliff campground but rather a plan, path” by “use that had been worn down JR., HUG,

Before: PROCTER campers. By animals and 1995 at PAMELA ANN RYMER RAYMOND latest, acсident, well ‍‌​‌‌​​‌‌‌‌‌​​‌​​‌​​​‌‌‌​‌​​​‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​‍before Navarette’s FISHER, Judges. C. Circuit rangers Liberty Glen had noticed the cliff,

path leading from C-88 to the but the FISHER; Opinion by Judge Dissent Army Corps nothing had done to alert Judge RYMER. dangerous campers using Indeed, drop during regular off. their

FISHER, Judge: Circuit safety meetings camp ground administra- tors and staff never discussed whether to injured severely Navarette was Ricardo path. related to precautions take campground a cliff at a when he fell off accident, however, Following the the staff Engineers operated met to discuss the incident. Their reac- in (Army Corps) near Lake Sonoma north- tion, it, ranger put my one was “Oh Alleging camp- ern California. absolutely hap- God! We can see how it failing in ground negligent staff had been pened.” safety precautions to undertake after a In a complaint Navarette filed directly path” developed “use led seeking damages from the United States campsite edge, from his to the cliffs Na- 1346(b)(1). FTCA, § under the 28 U.S.C. damages varette sued granted govern- court district Aсt under the Federal Tort Claims motion, summary judgment finding ment’s (FTCA). granted The district court sum- by the that Navarette’s suit was barred mary judgment government, find- discretionary exception.' Navar- function excep- ing function appeal. ette then filed this jurisdiction tion under the FTCA. barred hold that function We Discretionary Exception II. Function exception aрply and reverse. summary the district court’s We review judgment de novo. Soldano v. United See I. Background (9th Cir.2006). F.3d injured April 1997 at determine, Navarette was viewing the evidence “We must Liberty Campground, Glen to ... light most favorable operates. Corps nonmoving party, owns On whether there accident, fact and wheth- genuine issues of material night camр- of his Navarette was de- ary Congress’ correctly applied the er the district court (internal prevent judicial second-guessing of sire to substantive law.” Id. quotation decisions omitted) (omission legislative and administrative original). marks social, economic, political grounded government’s sov- The FTCA waives the *3 exception “рrotects gov- the policy,” immunity for civil actions on claims ereign on ernmental actions and decisions based including claims for money damages, for policy.” Id. at public considerations of by negli- the “personal injury caused (internal 536-37, quotation 108 S.Ct. 1954 wrongful act or omission of gent or omitted). government’s “It is the marks acting of the Govеrnment while employee applicability to demonstrate the burden scope employ- the of his office or discretionary exception.” function ” 1346(b)(1). § .... Fed- ment 28 U.S.C. 1177, Whisnant United jurisdiction eral courts’ over such claims Cir.2005). exception limited an for: Army Corps’ argues Navarette [a]ny upon claim based an act or omis- danger of the campers failure to warn employee an of the Government sion of to the cliffs posed use perform- or ... based exercise choice, edge discretionary not a be per- ance or the failure to exercise or government already adopted cause the discretionary duty a function or on form camp ground policies requiring an em- agency of a federal or in a manner and that such maintained Government, of the whether or ployee or dangerous terrain conditions be marked not the discretion involved be abused. (1997), § fenced. He cites 36 C.F.R 327.1 2680(a). § 28 U.S.C. requires Army Corps manage Supreme The Court has creatеd to “pro- the resources entrusted to it so as two-pronged applying test for this “dis with safe and healthful vid[e] First, cretionary exception.” we function opportunities protecting while recreational must consider “whether the action is resources,” enhancing these and the acting employee.” matter of choice for the Army Corps’ Engineering Manual 1110—1— 531, Berkovitz v. United 486 U.S. 400, “Guiding Principle” which lists as a 536, 1954, 100 L.Ed.2d 531 108 S.Ct. health, security “maintaining safety, (1988). exception apply aspects.” comfort of the customers all statute, regulation, poli “when a federal or statements, however, simply These cy of action specifically prescribes course general campsite admonitions to make the employee govern an and the ‍‌​‌‌​​‌‌‌‌‌​​‌​​‌​​​‌‌‌​‌​​​‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​‍for follow” safe; they specific enough are not to make employee ment deviates from this course. governmental regarding decisions Second, Id. con “assuming challenged nondiscretionary. cliff at issue here judgment, an element of duct invоlves Kennewick Dist. v. See judg court must determine whether

ment is of the kind that the statutory duty that a “general designed to shield.” promote safety” is insufficient to show discretion). Id. Because discretion- lacked basis “[t]he Engineering accident occurred 1. The Manual in effect ern since Navarette's might July or the 2004 version differ time of Navarette's accident was dated how new, version; appeal, the 1987 but on Navar- issued a su- from applicability perseding edition November 2004. The ette does not contest Also, government apparently regard cited district court and as- later Manual. with 327.1, portion § here. It of 36 C.F.R. we note it has sume that the 2004 edition controls why gov- changed since Navarette's accident. is unclear the 2004 Manual would argument aminations of the desired use levels to Navarette’s Corps’ considering impacts more traction be allowed on visi- finds protection Plan.” The tor use and resource in con- “Lake Sonoma legislative includes an instruction formance with Plan’s checklist mandates. conditions, “[djangerous presented adapt- such The criteria have been etc, properly design marked ed from available standards to added.) gov (Emphasis unique requirements park meet the fenced.” argues compliance ernment with this roads. This will a framework instruction was because the within which and constructiоn of preface pro park conducted; “The states: roads should be howev- er, checklist contained herein are this document gram and is not intended to *4 complete encompass or entire since comparable considered level of detail deleted, added, normally or modi to that found in progrаms design manu- itself, presents fied as the need and the als. presented guide checklist is Despite 453 F.3d at 1149. language, accomplishment responsibilities.” we concluded that the “Park Service’s de-

According government’s argument, to the design closely cision to the Road to follow merely if checklist “a in the guide granite mountains and to havе vista accomplishment responsibilities,” then point given protected, in a location is but employees had as to park speed its failure to set a limit consistent whether or not to follow the checklist’s design with those choices the Park [and light instructions. specified Service’s own standards correlat- preface’s explanation program that “[t]he ing stopping minimum distances with max- and checklist contained herein are not con imum is not.” Id. at limits] entire,” complete “only sidered as a (internal quotation 1150-51 marks and al- guide” language suggests employees that omitted). flexibility terations were not to view checklist as encom Park Service’s standards inсluded did not passing entirety of their duties. That it already undermine its duties where may requirements the listed not have been sufficiently specific decided stan- they that comprehensive does not mean (stating regard- dard. See id. at 1150 that mandatory. were not permitted less of whether the standards the Park Service discretion road

Moreover, introduc- prefatory language choices, “it does not follow that the Stan- ing flexibility government’s into the duties basic, safety specifications dards’ scientific trump government’s imposi- disregarded, particularly be those specific pref- ‍‌​‌‌​​‌‌‌‌‌​​‌​​‌​​​‌‌‌​‌​​​‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​‍tion of duties on itself. The require redesigning that do not or recon- ace here is similar to that in the Park Road”). structing the Service standards we addressed in Solda- no: reasons, reject For also similar we provide government’s argument

The standards contained herein flexibility in planning design Corps’ general guidelines relating more to processes.... important signs Engineering It to note and fences in Manual vary considerably Safety the standards 1110-1-400 make the Plan’s more First, type specific requirements discretionary. with the of use to be accommodat- generally provides fencing ed. Basic decisions have to be made the Manual will by park management application signs places in the limited those where necessary.2 expressly of these stаndards based on careful ex- But the Plan Fencing generally only 2. Section 2.13.2 of the should be construct- Manual states: such, it drop-off. in fact a As dangerous ter below was drop-offs and other places Second, marked or fenced” “necessary” category. “properly had to be rain in that certainly retained discre аccording plain terms of mark or fence tion as to how to Plan. it retained discre that does not mean but specificity, Given v. whether to do so. See Childers tion involving government directives cases 40 F.3d Cir. United warning “special hazards” 1994) manner in precise that “the inapposite. Valdez v. United Cf. public” as re

which NPS would warn (9th Cir.1995) 1179 n. by the National Pаrk Service quired stating (addressing park policy a national the discretion “clearly manual [fell] area specific to the “[b]rochures origi exception”) (emphasis ary function safety messages contain direct should nal); see also Blackburn hazards or attractions special attention to (ad 1426, 1431 potentially thаt could be hazardous government’s- discretion to dressing the Blackburn, visitor”); 100 F.3d at 1431 manner in which precise “determin[e] (“[T]he manual’s broad mandate hazards). Navarette fell to warn” of When protect it from warn the of and *5 cliff, however, government the over the the exercise of special hazards involves campers drop- had not warned about identifying such hazards discretion way. off in hazards re determining which [and] argues that government nonetheless an quire explicit warning.”). an Where Safety Plan left intact its discretion to general adopted policy speaks such terrain at issue determine whether terms, simply that it we have concluded is disagree. dangerous.3 hеre was in fact We of a “broad mandate to warn Safety Plan’s that “[d]an- instruction ” “necessarily that en ‘special hazards’ conditions, drop- such as gerous terrain an of discretion in compasses element offs, etc, marked or properly will be Valdez, hazards.” 56 identifying such sufficiently and manda “specific fenced” is Kelly also v. United F.3d see tory” to create “clear duties incumbent- Cir.2001) (9th 761 actors.” Kenne governmental in which man (addressing cases “broad Dist., F.2d at 1026. wick specify did not a course of conduct dates Although Corps may have had discre follow”). government to drop-off, tion to decide what constituted governmental we have refused to read “dаngerous of identify types or to other sufficiently into deter policies terrain,” dispute here that the there is no identify a course of path particular from the to the rocks minate to drop 30-foot control, control, guid- Detailed traffic be used whenever feasible. ed for access traffic, screening, safety purрoses. warning and and Care must ance on all information determining type signs placement and to be exercised in and their shall conform 6b, fencing. fencing Corps’ "Sign is nec- location of Where EP 310-l-6a height essary minimum it should be of the Standards Manual." design possible be unobtrusive and to government wisely argue 3. The that required accomplish thе function. still part fact was not of the that this provides Section 2.14 that: campsite's original design negates duty its Signs provided where needed shall be Plan, traffic, follow the directives of the regulate con- warn of hazardous restrictions, ditions, grounds” applies area "[a]ccess establish "facilities," only to signs the Lake Sonoma shоuld information. The number designs. Symbol signs campground kept at a minimum. shall be action, grounds” “Dangerous because government condi- proper tions, etc, ac challenged governmental such as proper- “[w]here tivity ly it, considerations under involves marked fenced.” As I read checklist, rather than the bal an established of the Plan’s whiсh the Plan ancing competing public policy consid only guide, notes is drop-offs refers to erations, the rationale for the example an of terrain kind condition ARA away.” falls Leisure Services dangerous, not as a declara- Cir. drop-offs tion that all are dangerous. So Soldano, 1987); see also 453 F.3d at 1148 construed, applying the Guideline involves governmental there was no a judgment particular as to whether a application discretion involved (or nature) drop-off other condition of like correlating ‍‌​‌‌​​‌‌‌‌‌​​‌​​‌​​​‌‌‌​‌​​​‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​‍standards road’s maximum actually dangerous. limit minimum speed with road’s I disagree also this case is similar Berkovitz, distance); stopping sight to Soldano v. United 453 F.3d 1140 540-43, U.S. at 108 S.Ct. 1954 (9th Cir.2006). claimed, plaintiff There the lacked discretion to among things, other that the Park Service produce a license to a vaccine with

issue negligently speed set the limit for the road requiring out the manufacturer to submit on which he had an accident. Id. at 1143. required by regula certain test data as quite specific: they The stаndards were tion). m.p.h. only limit of 35 allowed Here, already de minimum, stopping-sight where the actual dropmffs cided that were—in Valdez’s ter distance or exceeds meets 225 feet. Id. at hazard,” minology “special or—in the —a 1148. Given uncontradicted evidence that *6 dangerous Plan’s words—“a stopping-sight distance was less than 4 Accordingly, condition.” we hold that, we held that the decision to set duty to mark Army Corps’ or fence the m.p.h. limit at 35 “circum- was “specific to the cliff was and by objective safety scribed criteria and mandatory,” and thus did not come within was not the result of a decision of discretionary exception. Kennewick the kind protected Dist., F.2d at also, Id. аt exception.” see RE- Accordingly, we REVERSE and e.g., ARA v. Leisure Servs. United proceedings. MAND for further (9th Cir.1987) 831 F.2d and REMANDED. that the Park decision to REVERSED Service’s guardrails the Denali Park Road without RYMER, Judge, dissenting: Circuit grounded policy, but the failure to pass maintain a on that road to “conform I “dangerous read the ter- original grades alignments” provision differently majori- rain” from the “firm, ty, to be of uniform cross section” [and] and therefore dissent. The Plan’s Safety” required by Park standards was “Guideline’s Relative to Visitor Service not). respect states with to “Access area agreed

4. Even if we with the dissent gave Plan some discre- cliff at the end of a dirt road that "[a] drop-offs tion to determine which were dan- beginning not visible from the of the road gerous, path’s edge at a termination cliff’s certainly qualify warning would for a seem clearly dangerous nighttime sign guidelines” directing gov- under dangerous well have constituted terrain as conditions). ernment to warn of hazardous Termini v. United matter of law. Cf. remove operates to As a standard prong the first under the stan- function test when and man- specific embodied

dard “is creates regulation or statute which

datory govern- incumbent

clear duties actors,” Irr. Dist. v. Kennewick

mental 1018, 1026

Cir.1989), court I hold as the district would

did, not erased that discretion ‍‌​‌‌​​‌‌‌‌‌​​‌​​‌​​​‌‌‌​‌​​​‌‌‌‌​‌​‌‌‌‌‌​​‌​‌​​​‍was any language Engi- in the

Safety Plan or Manual.

neering Larry FORESTER; E. Daven A.

Willie Chavez; M. Ter-

port; Alfredo Carlos Evans, Sr.,

an; Plain and Donald E.

tiffs-Appellants, Secretary CHERTOFF,

Michael Security,

Department of Homeland

Defendant-Appellee.

No. 05-16517. Appeals,

United States Court

Ninth Circuit. *7 * April

Submitted Francisco, California **.

San Aug.

Filed ** * granted appellants’ prede- panel previously mo- substituted for his This Michael Chertoff is cessor, Secretary Ridge, the De- appeal Tom the briefs. Fed. tion to submit this on Security. R.App. partment 34(a)(2). Fed. of Homeland R.App. P. 43(c)(2). P.