Daniel Lesoeur v. United States, 21 F.3d 965 (9th Cir. 1994). · Go Syfert
Daniel Lesoeur v. United States, 21 F.3d 965 (9th Cir. 1994). Cases Citing This Book View Copy Cite
58 citation events (36 in the last 25 years) across 16 distinct courts.
Strongest positive: Walton v. Smith (cand, 2025-10-07)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 44 distinct citers. How cited ↗
discussed Cited as authority (rule) Walton v. Smith
N.D. Cal. · 2025 · confidence medium
The 14 FTCA “waives the sovereign immunity of the United States for certain torts committed by 15 government employees where a claim would exist under state law if the government were 16 a private person.” See Lesouer v. United States, 21 F.3d 965, 967 (9th Cir. 1994). 17 Consequently, “violations of federal law are not actionable under the FTCA because any 18 liability would arise under federal rather than state law.” See Firebaugh Canal Water 19 Dist. v. United States, 712 F.3d 1296, 1303 (9th Cir. 2013) (internal quotation and citation 20 omitted). 21 Here, plaintiffs allege defenda…
discussed Cited as authority (rule) Raiford v. Olympia School District No 111
W.D. Wash. · 2025 · confidence medium
Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). 19 A court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 20 1915(e)(1) but should do so “only in exceptional circumstances.” Palmer v. Valdez, 560 21 F.3d 965, 970 (9th Cir. 2009). 22 Because there is no right to counsel in a civil case, the court does not have 23 authority to compel counsel to provide representation.
discussed Cited as authority (rule) Dawes v. The People of the State of California
S.D. Cal. · 2024 · confidence medium
Appointment of Pro Bono Counsel 18 As noted, there is no right to counsel in a civil action, but a court may under 19 “exceptional circumstances” exercise its discretion and “request an attorney to represent 20 any person unable to afford counsel.” 28 U.S.C. § 1915 (e)(1); Palmer v. Valdez, 560 21 F.3d 965, 970 (9th Cir. 2009).
discussed Cited as authority (rule) Schell v. United States (2×) also: Cited "see, e.g."
E.D. Cal. · 2024 · confidence medium
“In the usual case, the failure to warn involves only ‘safety 15 considerations under an established policy, rather than the balancing of competing policy 16 considerations.’” Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir. 1994) (citation omitted). 17 Thus, “a failure to warn falls within the discretionary function exception only if it implicates 18 political or economic policy considerations[.]” Id.
discussed Cited as authority (rule) Meraz v. City of Bakersfield
E.D. Cal. · 2021 · confidence medium
See Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) (“When a state criminal 18 prosecution has begun, the Younger rule directly bars a declaratory judgment action” as well as a 19 section 1983 action for declaratory relief and damages “where such an action would have a 20 substantially disruptive effect upon ongoing state criminal proceedings.”); Gilbertson v. Albright, 381 21 F.3d 965, 984 (9th Cir. 2004) (en banc) (Younger abstention applies to actions for damages as it does 22 to declaratory and injunctive relief). 23 A court may apply a stay under Younger when: “(1) the state c…
cited Cited as authority (rule) Arellano v. Blahnik
S.D. Cal. · 2021 · confidence medium
Lassiter v. Dept. of Social Servs, 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 21 F.3d 965, 970 (9th Cir. 2009).
cited Cited as authority (rule) Jahr v. United States
W.D. Wash. · 2017 · confidence medium
Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994).
discussed Cited as authority (rule) Steinle v. City & County of San Francisco
N.D. Cal. · 2017 · confidence medium
Because the discretionary function exception negates the FTCA’s waiver of sovereign immunity, “federal courts do not have subject matter jurisdiction over tort actions based on federal defendants’ performance of discretionary functions.” Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994).
discussed Cited as authority (rule) Parrish v. United States
E.D.N.C. · 2016 · confidence medium
See S.R.P., 676 F.3d at 336-37 (decision not to warn of specific hazard “susceptible to policy analysis” because it implicated economic policy, as well as the “risk of numbing .... visitors to all warnings”; also the “determination [wa]s directly related to the NPs’s mission of preserving national parks”); Lesoeur, 21 F.3d at 969-70 (failure to warn tribal- river tour was not regulated bound up in .
discussed Cited as authority (rule) Kwai Wong v. David Beebe (2×)
9th Cir. · 2013 · confidence medium
Aside from our holdings in Brady v. United States, 211 F.3d 499, 502-03 (9th Cir.2000), and Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994), which held, respectively, that the administrative exhaustion requirement in § 2675(a) and discretionary function exception in § 2680(a) are jurisdictional, we have not addressed whether any of the other provisions in chapter 171 of the FTCA set forth jurisdictional requirements.
discussed Cited as authority (rule) Dichter-Mad Family Partners v. United States
9th Cir. · 2013 · confidence medium
Thus, ‘‘[w]hen established gov- take policy goals into account.’’); Lesoeur ernmental policy, as expressed or implied v. United States, 21 F.3d 965, 969 (9th 1028 707 FEDERAL SUPPLEMENT, 2d SERIES Cir.1994) (‘‘[Appellants] argue that the dis- rejected ‘‘a rigid dichotomy between ‘plan- cretionary function exception cannot apply ning’ and ‘operational’ decisions and activi- in the absence of a ‘conscious decision.’ ties.’’ Terbush, 516 F.3d at 1130 (citing The statute is not so limitedTTTT The lan- Gaubert, 499 U.S. at 324 , 111 S.Ct. 1267 ). guage is directed at…
cited Cited as authority (rule) Hieda v. United States
D. Haw. · 2011 · confidence medium
“Where the exception applies, no federal subject matter jurisdiction exists.” In re Glacier Bay, 71 F.3d 1447, 1450 (9th Cir.1995) (citing Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994)).
discussed Cited as authority (rule) Bailey v. United States (2×)
9th Cir. · 2010 · confidence medium
Co. v. United States, 864 F.2d 1497, 1504 (9th Cir.1989); Seyler v. United States, 832 F.2d 120, 123 (9th Cir. 1987); ARA Leisure Services v. United States, 831 F.2d 193 , 195 (9th Cir.1987); cf. Miller v. United States, 163 F.3d 591, 596 (9th Cir. 1998) (holding that United States immune because it had to consider more than safety when making the challenged decision); Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir.1994) (same). [3] The majority ignores the central holding of Miller and focuses instead on Miller's statement that "the Forest Service's decision regarding how to attack a fir…
discussed Cited as authority (rule) Dichter-Mad Family Partners, LLP v. United States
C.D. Cal. · 2010 · confidence medium
All that is required is that the applicable statute or regulation gave the government agent discretion to take policy goals into account.”); Lesoeur v. United States, 21 F.3d 965, 969 (9th *1028 Cir.1994) (“[Appellants] argue that the discretionary function exception cannot apply in the absence of a ‘conscious decision.’ The statute is not so limited....
discussed Cited as authority (rule) United States v. Baca
E.D. Cal. · 2009 · confidence medium
The statute “governs business operations within all of the national parks.” Lesoeur v. United States, 21 F.3d 965, 968 (9th Cir.1994) (determining that an Indian tribe engaged in whitewater rafting tours was exempt from § 5.3’s permit requirement under 36 C.F.R. § 7.4 (b)) (emphasis added).
discussed Cited as authority (rule) Viault v. United States
E.D.N.C. · 2009 · confidence medium
As for the subsequent failure to warn, this circuit and others have held that a failure to post warning signs “falls within the purview of the discretionary-function exception.” Williams, 50 F.3d at 310 ; see Rosebush, 119 F.3d at 443 (“the decision whether to warn of a potential danger is a protected discretionary function”); Kiehn v. United States, 984 F.2d 1100, 1103 (10th Cir.1993) (“The decision whether or not to post warning signs ... [is] discretionary as it involves an element of judgment or choice.” (quotations omitted)); Lesoeur v. United States, 21 F.3d 965, 969-70 (9th …
cited Cited as authority (rule) Terbush v. United States
9th Cir. · 2008 · confidence medium
Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir.1994).
cited Cited as authority (rule) Terbush v. United States
9th Cir. · 2008 · confidence medium
Lesouer v. United States, 21 F.3d 965, 970 (9th Cir. 1994).
discussed Cited as authority (rule) Mcfarland v. Norton
9th Cir. · 2005 · confidence medium
See, e.g., 16 U.S.C. § 3 ("The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks...."); Lesoeur v. United States, 21 F.3d 965, 968 (9th Cir.1994) (acknowledging that Congress has given the Secretary "a great deal of discretion in promulgating and enforcing regulations for use of the national parks.").
discussed Cited as authority (rule) McFarland v. Norton
9th Cir. · 2005 · confidence medium
See, e.g., 16 U.S.C. § 3 (“The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks.... ”); Lesoeur v. United States, 21 F.3d 965, 968 (9th Cir.1994) (acknowledging that Congress has given the Secretary “a great deal of discretion in promulgating and enforcing regulations for use of the national parks.”).
discussed Cited as authority (rule) Woodyer v. United States
W.D. Wash. · 2004 · confidence medium
Lesoeur v. United States, 21 F.3d 965, 968 (9th Cir.1994), citing Kennewick Irrigation District v. United States, 880 F.2d 1018, 1021-22 (9th Cir.1989); United States v. Varig Airlines, 467 U.S. 797, 814 , 104 S.Ct. 2755 , 81 L.Ed.2d 660 (1984).
discussed Cited as authority (rule) Hughes v. United States
N.D. Cal. · 2000 · confidence medium
Such a judgment would be no different than a judgment made by a private individual not to take certain measures to ensure the safety of visitors.... [I]n cases where the government has allegedly failed to warn, the use of the discretionary function exception must be limited to those unusual situations where the government was required to engage in broad, policy-making activities or to consider unique social, economic and political circumstances in the course of making judgments related to safety.” In support of these views, the Faber court cited Lesoeur v. United States, 21 F.3d 965, 970 (9t…
cited Cited as authority (rule) Wood v. United States
D. Me. · 2000 · confidence medium
See Williams v. United States, 60 F.3d 299, 305 (4th Cir.1995); Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994); Fazi v. United States, 935 F.2d 535, 539 (2d Cir.1991).
discussed Cited as authority (rule) Thakor v. United States
D. Nev. · 1999 · confidence medium
“In interpreting an administrative regulation, the administrative interpretation is given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Lesoeur v. United States, 21 F.3d 965, 969 (9th Cir.1994) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 , 65 S.Ct. 1215 , 89 L.Ed. 1700 (1945)).
discussed Cited as authority (rule) Cochran v. United States
N.D. Fla. · 1998 · confidence medium
See, e.g., Williams v. United States, 50 F.3d 299, 304-05 (4th Cir.1995); Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 972 (10th Cir.1994); Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994); Fazi v. United States, 935 F.2d 535, 539 (2d Cir.1991); Cisco v. United States, 768 F.2d 788 (7th Cir.1985). 2 .
cited Cited as authority (rule) Hagy v. United States
W.D. Wash. · 1997 · confidence medium
Lesoeur v. United States, 21 F.3d 965, 967-68 (9th Cir.1994) (government need only prove that decision is subject to policy analysis, not that it actually balanced factors).
cited Cited as authority (rule) Tomuel Lee v. United States
9th Cir. · 1996 · confidence medium
Lesoeur v. United States, 21 F.3d 965, 967 (1994).
cited Cited as authority (rule) In Re the Glacier Bay. United Cook Inlet Drift Assoc., an Alaska Cooperative Corp., on Behalf of a Class Comprising Its Members and Its Members' Deckhands v. Trinidad Corporation West of England Ship Owners Mark Hawker Kee Leasing Co. Mathiasen's Tanker Industries, Inc. Glacier Bay Transportation Corporation v. United States
9th Cir. · 1995 · confidence medium
Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994). 8 It is by now firmly established that the determination whether the exception applies requires a two-step analysis.
cited Cited as authority (rule) United Cook Inlet Drift Assoc. v. Trinidad Corp.
9th Cir. · 1995 · confidence medium
Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994).
discussed Cited as authority (rule) Noel v. United States
N.D. Cal. · 1995 · confidence medium
Furthermore, the Ninth Circuit has recently instructed that in safety related cases where the government allegedly failed to warn, the use of the discretionary function is limited to “those unusual situations where the government was required to engage in broad policy-making judgments related to safety.” Faber v. United States, 56 F.3d 1122 (9th Cir.1995), citing Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir.1994).
discussed Cited as authority (rule) Williams v. United States (2×) also: Cited "see, e.g."
4th Cir. · 1995 · confidence medium
See, e.g., Black Hills Aviation, Inc., 34 F.3d at 972 (affirming dismissal of claims under Rule 12(b)(1) because the claims were barred by the discretionary function exception of the FTCA); Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994) (stating that federal courts lack subject matter jurisdiction under the FTCA if the discretionary function exception applies); Kirchmann, 8 F.3d at 1274 (affirming dismissal, inter alia, for lack of subject matter jurisdiction given that the discretionary function exception barred the suit); Fazi v. United States, 935 F.2d 535, 539 (2d Cir.1991) (aff…
discussed Cited as authority (rule) Patricia Williams v. United States of America, & Third Party v. Meridian Management Corporation, Formerly Known as Contract Services Company, Incorporated, Third Party (2×) also: Cited "see, e.g."
3rd Cir. · 1995 · confidence medium
See, e.g., Black Hills Aviation, Inc., 34 F.3d at 972 (affirming dismissal of claims under Rule 12(b)(1) because the claims were barred by the discretionary function exception of the FTCA); Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994) (stating that federal courts lack subject matter jurisdiction under the FTCA if the discretionary function exception applies); Kirchmann, 8 F.3d at 1274 (affirming dismissal, inter alia, for lack of subject matter jurisdiction given that the discretionary function exception barred the suit); Fazi v. United States, 935 F.2d 535, 539 (2d Cir.1991) (aff…
discussed Cited "see" (PC) Rosas v. Kings County Jail
E.D. Cal. · 2023 · signal: accord · confidence high
Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 21 F.3d 965, 970 (9th Cir. 2009). 22 The Court has screened Plaintiff’s complaint and finds that this case is not complex and 23 does not present exceptional circumstances.
discussed Cited "see" Carlos Zelaya v. United States
11th Cir. · 2015 · signal: see · confidence high
See Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994) (“[F]ederal courts do not have subject matter jurisdiction over tort actions based on federal defendants’ performance of discretionary functions.”); White-Squire v. U.S. Postal Service, 592 F.3d 453, 457-58 (3d Cir.2010) (chapter 171 provisions are jurisdictional).
discussed Cited "see" Ard v. Federal Deposit Insurance
C.D. Cal. · 2011 · signal: see · confidence high
See Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994) (“federal courts do not have subject matter jurisdiction over tort actions based on federal defendants’ performance of discretionary functions”). 1.
cited Cited "see" United States v. Knauer
E.D.N.Y · 2009 · signal: see · confidence high
See Lesoeur v. U.S., 21 F.3d 965, 968 (9th Cir.1994) (“regulations in Part 7 of Chapter 36 are special regulations for specific park areas”); 36 C.F.R. § 1.2 (c).
cited Cited "see" Michelle Renee Sigman, on Her Behalf and as Guardian Ad Litem for James Douglas Sigman, a Minor, and as Personal Representative of Taylor McKenzie Sigman Deceased James Douglas Sigman a Minor Taylor McKenzie Sigman, Deceased, Planlaintiffs-Appelants v. United States of America, Lorraine T. Murray, a Single Woman v. United States of America, Hazel Roberts, Wife Harold Roberts, Husband v. United States of America, Marilyn Moe v. United States of America, Marlene Moe, on Her Own Behalf Melisa Moe, Minor, by and Through Her Guardian Ad Litem Kelly Moe, Minor, by and Through the Guardian Ad Litem v. United States of America, Selma Jones, on Her Own Behalf, and Bryan Joseph (Bj) Hansen, a Minor, by and Through His Guardian Ad Litem v. United States of America, Eva Irene Walch, Plaintiff-Appelant v. United States of America, Tiffany Williams, Individually and on Behalf of Sean Williams and Hali Williams, Her Minor Children v. United States of America, Ruth Gerken v. United States of America, Sandee Wold, Individually and on Behalf of Her Minor Children, Anthony Zuchetto and Janessa Zucchetto, United States of America, Rande Lindner, as the Duly Appointed and Qualified Personal Representative of the Estae of Anita Louise Lindner, Deceased, for the Benefit of Rande Lindner, Anastasia L. Lindner, Richard L. Lindner, Robert M. Lindner and Candice M. Lindner v. United States of America, Samuel Alton Spencer, a Minor by and Through His Guardian Ad Litem v. United States of America, Selma Jones v. United States of America, J. Arthur Zucchetto v. United States of America, Gregory Paul McCarron Husband Gregory Pual McCarron on Behalf of Ryan William John McCarron His Minor Child as Personal Represtatvie of the Estae of Christian Franics McCarron Deceased Echo Ann McCarron Wife Ryan William John McCarron a Minor Child, Christian Francis Mc Carron, Deceased, Estate of v. United States of America, Heather Ford, a Single Woman, Ledeana Kelley, Wife Shawn Kelley, Husband Rebecca Kelley, a Minor v. United States of America, Ashely N. Williams, a Minor, by and Through Her Natural Father and Guardian Ad Litem, Sean Williams Sean Tyler Williams, Guardian Ad Litem v. United States of America, Michelle Renee Sigman, on Her Behalf and as Guardian Ad Litem for James Douglas Sigman, a Aminor, and as Personal Arepresentative of Taylor McKenzie Asigman, Deceased James Douglas Asigman, a Minor Taylor Amckenzie Sigman, Deceased Lorraine T. Murray, a Single Awoman Hazel Roberts, Wife Aharold Roberts, Husband Pauline Brown Marilyn Moe Amarlene Moe, on Her Own Behalf Melissa Moe, Minor, by and Athrough Her Guardian Ad Litem Akelly Moe, Minor, by and Athrough the Guardian Ad Litem Aselma Jones, on Her Own Behalf Aand Bryan Joseph (Bj) Hansen, a Aminor, by and Through His Aguardian Ad Litem Eva Irene Walch Tiffany Williams, Individually and on Behalf of Sean Williams and Hali Williams, Her Minor Children Ruth Gerken Sandee Wold, Individually and on Behalf of Her Minor Children Rande Lindner, as the Duly Appointed and Qualified Personal Representative of the Estate of Anita Louise Lindner, Deceased, for the Benefit of Rande Lindner, Anastasia L. Lindner, Richard L. Lindner, Robert M. Lindner and Candice M. Lindner Samuel Alton Spencer, a Minor by and Through His Guardian Ad Litem Selma Jones J. Arthur Zucchetto Gregory Paul McCarron Husband Gregory Paul McCarron on Behalf of Ryan William John McCarron His Minor Child as Personal Representative of the Estate of Christian Francis McCarron Deceased Echo Ann McCarron Wife Ryan William John McCarron a Minor Child Christian Francis McCarron Deceased, Estate of Heather Ford, a Single Woman Ledeana Kelley, Wife Shawn Kelley, Husband Rebecca Kelley, a Minor Ashley N. Williams, a Minor, by and Through Her Natural Father and Guardian Ad Litem, Sean Williams Sean Tyler Williams, Guardian Ad Litem v. United States
9th Cir. · 2000 · signal: see · confidence high
See Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994); Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996).
cited Cited "see" Sigman v. United States
9th Cir. · 2000 · signal: see · confidence high
See Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994); Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir.1996).
cited Cited "see" Sigman v. United States
9th Cir. · 2000 · signal: see · confidence high
See Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994); Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir.1996).
cited Cited "see" Michelle Renee Sigman, on Her Behalf and as Guardian Ad Litem for James Douglas Sigman, a Minor, and as Personal Representative of Taylor McKenzie Sigman Deceased James Douglas Sigman a Minor Taylor McKenzie Sigman, Deceased, Planlaintiffs-Appelants v. United States of America, Lorraine T. Murray, a Single Woman v. United States of America, Hazel Roberts, Wife Harold Roberts, Husband v. United States of America, Marilyn Moe v. United States of America, Marlene Moe, on Her Own Behalf Melisa Moe, Minor, by and Through Her Guardian Ad Litem Kelly Moe, Minor, by and Through the Guardian Ad Litem v. United States of America, Selma Jones, on Her Own Behalf, and Bryan Joseph (Bj) Hansen, a Minor, by and Through His Guardian Ad Litem v. United States of America, Eva Irene Walch, Plaintiff-Appelant v. United States of America, Tiffany Williams, Individually and on Behalf of Sean Williams and Hali Williams, Her Minor Children v. United States of America, Ruth Gerken v. United States of America, Sandee Wold, Individually and on Behalf of Her Minor Children, Anthony Zuchetto and Janessa Zucchetto, United States of America, Rande Lindner, as the Duly Appointed and Qualified Personal Representative of the Estae of Anita Louise Lindner, Deceased, for the Benefit of Rande Lindner, Anastasia L. Lindner, Richard L. Lindner, Robert M. Lindner and Candice M. Lindner v. United States of America, Samuel Alton Spencer, a Minor by and Through His Guardian Ad Litem v. United States of America, Selma Jones v. United States of America, Gregory Paul McCarron Husband Gregory Pual McCarron on Behalf of Ryan William John McCarron His Minor Child as Personal Represtatvie of the Estae of Christian Franics McCarron Deceased Echo Ann McCarron Wife Ryan William John McCarron a Minor Child, Christian Francis Mc Carron, Deceased, Estate of v. United States of America, Heather Ford, a Single Woman, Ledeana Kelley, Wife Shawn Kelley, Husband Rebecca Kelley, a Minor v. United States of America, Ashely N. Williams, a Minor, by and Through Her Natural Father and Guardian Ad Litem, Sean Williams Sean Tyler Williams, Guardian Ad Litem v. United States of America, Michelle Renee Sigman, on Her Behalf and as Guardian Ad Litem for James Douglas Sigman, a Aminor, and as Personal Arepresentative of Taylor McKenzie Asigman, Deceased James Douglas Asigman, a Minor Taylor Amckenzie Sigman, Deceased Lorraine T. Murray, a Single Awoman Hazel Roberts, Wife Aharold Roberts, Husband Pauline Brown Marilyn Moe Amarlene Moe, on Her Own Behalf Melissa Moe, Minor, by and Athrough Her Guardian Ad Litem Akelly Moe, Minor, by and Athrough the Guardian Ad Litem Aselma Jones, on Her Own Behalf Aand Bryan Joseph (Bj) Hansen, a Aminor, by and Through His Aguardian Ad Litem Eva Irene Walch Tiffany Williams, Individually and on Behalf of Sean Williams and Hali Williams, Her Minor Children Ruth Gerken Sandee Wold, Individually and on Behalf of Her Minor Children Rande Lindner, as the Duly Appointed and Qualified Personal Representative of the Estate of Anita Louise Lindner, Deceased, for the Benefit of Rande Lindner, Anastasia L. Lindner, Richard L. Lindner, Robert M. Lindner and Candice M. Lindner Samuel Alton Spencer, a Minor by and Through His Guardian Ad Litem Selma Jones J. Arthur Zucchetto Gregory Paul McCarron Husband Gregory Paul McCarron on Behalf of Ryan William John McCarron His Minor Child as Personal Representative of the Estate of Christian Francis McCarron Deceased Echo Ann McCarron Wife Ryan William John McCarron a Minor Child Christian Francis McCarron Deceased, Estate of Heather Ford, a Single Woman Ledeana Kelley, Wife Shawn Kelley, Husband Rebecca Kelley, a Minor Ashley N. Williams, a Minor, by and Through Her Natural Father and Guardian Ad Litem, Sean Williams Sean Tyler Williams, Guardian Ad Litem v. United States
9th Cir. · 2000 · signal: see · confidence high
See Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994); Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996).
discussed Cited "see" Everett Todd Faber v. United States
9th Cir. · 1995 · signal: see · confidence high
See Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir.1994) (where the court applied the discretionary function exception because of the unusual circumstances involved in the government’s failure to warn).
discussed Cited "see, e.g." McFadden v. Washington Metropolitan Area Transit Authority
D. Maryland · 2021 · signal: see also · confidence low
Notwithstanding its conclusion that the use of an independent contractor by the United States immunized it from liability, the Court held that with “respect to posting warning signs in this specific case, the courts recognize that this falls within the purview of the discretionary function exception.” Id. at 310 (citing Kiehn v. United States, 984 F.2d 1100, 1103 (10th Cir. 1993) (noting in a failure to warn claim that “[t]he decision whether or not to post warning signs . . . is clearly discretionary as it ‘involves an element of judgment or choice.’”); see also Lesoeur v. United …
discussed Cited "see, e.g." Fair v. Clifton
D. Nev. · 2020 · signal: see also · confidence low
See Younger v. Harris, 401 U.S. 37, 53-54 (1971). 18 The United States Supreme Court has instructed that “federal-court abstention is required” 19 when there is “a parallel, pending state criminal proceeding.” Sprint Commc’ns, Inc. v. 20 Jacobs, 571 U.S. 69, 72 (2013) (emphasis added); see also Gilbertson v. Albright, 381 21 F.3d 965 (9th Cir. 2004) (federal courts generally abstain from granting any relief that 22 would interfere with pending state judicial proceedings).
cited Cited "see, e.g." Felix Valdez v. United States
9th Cir. · 1995 · signal: see also · confidence medium
See also Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir.1994).
Retrieving the full opinion text from the archive…
Daniel LESOEUR, Et Al., Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee
92-16948.
Court of Appeals for the Ninth Circuit.
Apr 18, 1994.
21 F.3d 965
Alan M. Kyman and John Friedeman, Phoenix, AZ, for plaintiffs-appellants., Paul F. Figley, Heidi E. Weckwert, U.S. Dept, of Justice, Washington, DC, for defendant-appellee.
Choy, Reinhardt, Leavy.
Cited by 48 opinions  |  Published

Opinion by Judge REINHARDT.

REINHARDT, Circuit Judge:

The Lesoeurs appeal the district court’s dismissal of their tort action against the United States for lack of subject matter jurisdiction under the Federal Tort Claims Act (“FTCA”). The district court dismissed the action after finding that it was barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Lesoeur first contends that the discretionary function exception does not apply because the National Park Service (“NPS”) faded to comply with federal regulations. Lesoeur also contends that the NPS’s'negligent failure to warn is not protected by the discretionary function exception.

We affirm the district court’s dismissal of the case. The regulation that was allegedly violated does not apply to the facts of the Lesoeurs’ action. Additionally, the NPS’s failure to warn is protected because political policy considerations were clearly implicated in the decision. Accordingly, the discretionary function exception applies and dismissal was proper.

I.

In 1988, the Lesoeur family was vacationing in the United States. Their vacation included a trip to Grand Ganyon National Park (“Park”), owned by the United States. To enter the Park and use its facilities, the Lesoeurs paid an admission fee to the United States.

While in the Park, the Lesoeurs decided to take a whitewater rafting trip on the Colorado River. The attendant at the tour information desk at the Bright Angel Lodge told the Lesoeurs that there were no openings. The attendant suggested that the Lesoeurs look for other tour companies in the yellow pages. After contacting several tour companies that had no space available, the Leso-eurs made a reservation with the Hualapai Indian Tribe (“Tribe”) for a two-day rafting[*967] tour operated by the Tribe. The tour began the next day.

On August 13, 1988, the Lesoeurs paid the Tribe for the tour and were bused with other tour members to the river’s edge. There were no posted warning signs at or near the point where the group entered the water. Therefore, the Lesoeurs were not aware that the Tribe’s tours were unregulated by the National Park Service (“NPS”). On the first day of the rafting trip, Mr. Lesoeur fell from the raft as it was abruptly turned in smooth water. He was severely injured when he was run over by the raft’s propeller.

The Tribe’s rafting tours had been totally unregulated by the NPS since a 12-month permit issued to the Tribe in 1973 had expired. Both parties agree that the NPS made a decision in 1976 not to regulate the Tribe’s tours. This decision is'reflected in the 1977 revision to 36 C.F.R. § 7.4. [1] It is also undisputed that the decision to exempt the Tribe’s tours from regulation was linked to a boundary dispute between the Tribe and the United States. [2] The NPS maintains that it decided to refrain from asserting regulatory authority over the Tribe’s tours due to the Tribe’s claims of sovereignty.

Lesoeur filed thus action after the administrative claim he filed with the Grand Canyon National Park was denied. The United States filed a Motion to Dismiss for lack of subject matter jurisdiction on the ground that the action was barred by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). Lesoeur filed a Cross-Motion for Partial Summary Judgment. After a hearing, the district court granted the Motion to Dismiss, treating it as a motion for summary judgment.

II.

The Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCÁ”), waives the sovereign immunity of the United States for certain torts committed by government employees where a claim would exist under state law if the government were a private person. However, this waiver of sovereign immunity is limited by the discretionary function exception, 28 U.S.C. § 2680(a), which provides that the waiver shall not apply to “[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.” Therefore, federal courts do not have subject matter jurisdiction over tort actions based on federal defendants’ performance of discretionary functions. See Garcia v. U.S., 826 F.2d 806, 809.

In Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Cir.1989), the court followed a two-part inquiry to determine if the discretionary function exception applied:

We must “first consider whether the action is a matter of choice for the acting employee- [T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Berkovitz [v. United States, [486 U.S. 531, 534,] 108 S.Ct. 1954, 1958 [, 100 L.Ed.2d 531] (1988)]. If the challenged conduct does involve an element of judgment, our second step is to “determine whether that judgment is of the kind that the discretionary function exception was intended to shield.” Id. [at 536, 108 S.Ct.] at 1959. To be shielded, the judgment must be “grounded in social, economic, or political policy.” Id., quoting [United States v.] Varig [Airlines], 467 U.S. [797, 814[, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660] (1984)].

If the decisions are the type grounded in social, economic, or political policy judgments, the government is not required to “prove that it considered these[*968] factors and made a conscious decision on the basis of them.” Kennewick, 880 F.2d at 1028. The discretionary function exception reflects Congress’s “wish[ ] to prevent judicial ‘second-guessing’ of legislative and administrative decisions ... through the medium of an action in tort.” Id. at 1021-22 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764). The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on “the nature of the actions taken and on whether they are susceptible to policy analysis.” United States v. Gaubert, 499 U.S. 315, 323-24, 111 S.Ct. 1267, 1274-75, 113 L.Ed.2d 335 (1991).

In this case, the Secretary of the Interior is granted discretion in promulgating regulations. The National Park Service (“NPS”) enabling legislation states: “The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks ... under the jurisdiction of the National Park Service.” 16 U.S.C. § 3. Additionally, 16 U.S.C. § la-2 states:

“In order to facilitate the administration of the national park system, the Secretary of the Interior is authorized, under such terms and conditions as he may deem advisable, to carry out the following activities: ... (h) promulgate and enforce regulations concerning boating and other activities on or relating to waters located within areas of the National Park System....” (emphasis added).

Using this statutory authority, the Secretary promulgates regulations to govern the operation of the national parks. The regulation that governs business operations within all of the national parks, 36 C.F.R. § 5.3, states that “[e]ngaging in or soliciting any business in park areas, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, except as such may be specifically authorized under special regulations applicable to a park area, is prohibited.” However, regulations in Part 7 of Chapter 36 are special regulations for specific park areas and “may amend, modify relax or make more stringent” the regulations in Parts 1 through 5 of the chapter. 36 C.F.R. § 1.2(c). Part 7 includes 36 C.F.R. § 7.4(b), the special regulation governing Colorado whitewater boat trips within Grand Canyon National Park. This regulation applies to “all persons using the waters of, or Federally owned land administered by the National Park Service, along the Colorado River within Grand Canyon National Park, upstream from Diamond Creek at approximately river mile 226. . . .” 36 C.F.R. § 7.4(b).

Lesoeur alleges that the NPS failed to adequately supervise the Tribe with regard to the Tribe’s whitewater rafting operations. He argues that the NPS failed to comply with 36 C.F.R. § 5.3, the general provision requiring all vendors in national parks to operate according to a written agreement with the NPS. As a result, Lesoeur asserts, the discretionary function exception does not apply under Berkovitz. In support of his claim, Lesoeur points to Law Enforcement Policy and Guideline NPS-9 (“NPS-9”) which provides that “[t]he National Park Service will maintain law and order, protect persons and their property and protect park resources through the enforcement of all applicable laws and regulations.” He argues that NPS-9 requires the NPS to prohibit the Tribe from engaging in business in the Park without a written agreement pursuant to 36 C.F.R. § 5.3.

This argument fails because § 5.3 does not apply to the Tribe’s river tours: the regulation governing Colorado whitewater boat trips, 36 C.F.R. § 7.4(b), was amended to exempt the Tribe’s river tours from NPS regulation. First, it is clear that the Secretary has a great deal of discretion in promulgating and enforcing regulations for use of the national parks under 16 U.S.C. § 3. More specifically, the Secretary has discretion in promulgating and enforcing regulations concerning boating under § la-2. Therefore, the Secretary has discretion to exempt the Tribe’s tours from regulation.

The NPS asserted at trial that its decision not to regulate the Tribe’s river tours was based on the underlying policy concerning the relationship between the United States and Indian tribes. The United[*969] States has a made a clear policy decision to diminish regulation of Indian tribal activities. See Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450. Furthermore, the decision to exempt the Tribe from regulation was made in connection with a border dispute between the Tribe and the United States. The United States’ policy of Indian self-determination and NPS’s decision to settle the border dispute are precisely the types of political policy decisions that courts do not review. So, too, in this case, is the determination not to regulate the Tribe’s use of the river.

Lesoeur argues that § 7.4(b) does not effectively exempt the Tribe’s river tours from regulation because it is silent as to the Tribe and operations downstream from Diamond Creek. However, the NPS states that § 7.4(b) “governs all whitewater rafting operations on the Colorado River in Grand Canyon National Park” and specifies who must obtain permits for these operations. By excluding river operations originating at or below Diamond Creek, § 7.4(b) exempts river tours operated by the Hualapai from Park Service regulation as specifically as if section 7.4 had referred to the Hualapai by name, since the Hualapai whitewater boat trip operation is the only such operation in this category.

In interpreting an administrative regulation, the administrative interpretation is given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). It is clear that the agency’s interpretation of § 7.4(b) is not erroneous or inconsistent with the regulation. First, section 7.4(b) is titled “Colorado whitewater boat trips” and goes on to explain the regulations for such trips. Because this is the special regulation for Colorado whitewater boat trips within Grand Canyon National Park, it is not erroneous or inconsistent to interpret this as being the exclusive regulation for all such boat trips.

Section 7.4(b)’s legislative history supports this conclusion. In 1977, the NPS decided to exempt the Tribe’s river tours from regulation after a border dispute developed between the Tribe and the United States. The NPS amended § 7.4(b) so that the regulations apply only upstream from Diamond Creek. This change exempted the Tribe from regulation because the Tribe’s tours enter the river at Diamond Creek and only the Tribe’s tours operate downstream from Diamond Creek. Additionally, access to the river at Diamond Creek is controlled by the Tribe. To take a river tour with the Tribe, one would have to leave the Park and enter the Tribe’s Reservation. Also, one could enter the Tribe’s Reservation without ever entering the Park-. Although it may have been possible to amend the regulation more clearly, it cannot be said that it is erroneous or inconsistent to read the regulation as exempting the Tribe’s river tours.

III.

Lesoeur also alleges that the discretionary function exception does not apply to the NPS’s failure to warn him that the Tribe’s river tours were not regulated. Lesoeur first argues that the exception does not apply because, according to Lesoeur, the NPS did not make a decision that it would give no warnings, citing Dube v. Pittsburgh Corning, 870 F.2d 790 (1st Cir.1989). This argument fails because it is contrary to the law of this circuit.

In In re Consolidated United States Atmospheric Testing Litig., 820 F.2d 982, 998-999 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1076, 99 L.Ed.2d 235 (1988), we stated:

[Appellants] argue that the discretionary function exception cannot apply in the absence of a “conscious decision.” The statute is not so limited.... The language is directed at the nature of the conduct, and does not require an analysis of the decision-making process_ If the decision to issue or not to issue a “warning” is within the discretionary function exception, then logically the failure to consider whether to issue one necessarily falls within the exception as well.

Thus the question is whether a decision to warn or not to warn is within the discretionary function exception. ' In this case, a decision to warn or not to warn regarding the Tribe’s river tours is. subject to[*970] the same policy concerns as a decision not to regulate the Tribe’s tours in the first place. It is not difficult to see how relations between the Tribe and the United States could have been just as adversely affected by the NPS’ warning Park visitors of the dangers of using the Tribe’s tours as by its regulating of those tours. In fact, the warning might well have appeared to the Tribe to be even more hostile and intrusive.

Lesoeur also maintains that special consideration must be given to claims involving safety concerns or failure to give warnings. It is true, of course, that a failure to warn falls within the discretionary function exception only if it implicates political or economic policy considerations. In the usual case, the failure to warn involves only “safety considerations under an established policy, rather than the balancing of competing policy considerations.” Thus, the discretionary function exception does not apply. See Summers v. United States, 905 F.2d 1212, 1215 (9th Cir.1990) (NPS’s failure to warn about dangers of stepping on hot coals did not involve economic, social or political judgment, but was “a departure from the safety considerations established in [NPS] policies,” and was therefore not protected by discretionary function exception.)

This, however, is not the usual case. The NPS’s failure to warn that the Tribe’s rafting tours were not regulated clearly implicated important political policy considerations. Unlike the failure to warn in Summers, such considerations would play an important role in any decision affecting the conduct of the Tribe’s tours. [3]

IV.

Accordingly, the district court’s holding that the Lesoeurs’ action was barred by the discretionary function exception to the Federal Tort Claims Act is

AFFIRMED.

1

. Section 7.4 was revised so that only rafting upstream from Diamond Creek was regulated. The Tribe’s tours enter the river at Diamond Creek and operate solely downstream from this point.

2

. The Tribe claimed it owned the southern half of the Colorado River along the northern boundary of the Tribe’s Reservation. The United States claimed that it owned the entire river. Several other Indian tribes also were involved in the dispute. [SER 3-4, 9].

3

. See also Richardson v. United States, 943 F.2d 1107, 1111-12 (9th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992) (NPS’s failure to install ground wires on high-voltage power lines involved technical, economic and social considerations and was, therefore, protected by exception.).