In the instant case, the Border Patrol's interpretation of the word "should" is not clearly erroneous. The Handbook clearly distinguishes between activities which "should" be and those which "must" be performed. Compare Handbook, Exh. C, Doc. 30, at 9-8 ("checkpoints must be selected to allow oncoming traffic a clear, unobstructed view of the operation for at least one-half mile") with id. at 9-9 ("agents who stop vehicles and interrogate the occupants should be rotated frequently"). Because the Immigration and Naturalization Service ("INS") clearly distinguishes in the Handbook between advisory provisions and mandatory requirements, the court concludes that the INS was capable of making the disputed provisions mandatory, but chose instead to preserve the discretion of the Border Patrol. Because the Border Patrol's interpretation of the Handbook is not clearly erroneous, and the performance of an engineering study and placement of signs are discretionary, the court turns to the second prong of the discretionary function analysis. Under that prong, the court must determine whether the choice or judgment involved in the exercise of the Border Patrol's discretion is the kind that the discretionary function exception was designed to shield. Berkovitz, 486 U.S. at 531.
The Border Patrol argues that its discretion in establishing checkpoints reflects a tension between the competing policy objectives of maintaining minimum safety standards and fulfilling the Border Patrol's mission of apprehending illegal aliens. These dual goals certainly play a role in the selection of a checkpoint site. On one hand, it is more conducive to traffic safety to have as long a clear view as possible to the search area. This affords motorists ample opportunity to slow and stop their vehicles. On the other hand, such a view also allows illegal aliens an opportunity to evade the Patrol. Because the purpose of the checkpoint is to catch such aliens off guard and without warning, it makes sense to make such checkpoints undetectable until close to the point where the stop is actually to take place.
Nonetheless, these policy considerations are not relevant to the performance of an engineering study or the decision of whether to follow MUTCD guidelines. These tasks relate solely to the safety of motorists passing through the checkpoint, and do not implicate the element of surprise. Thus the choices made did not involve the weighing of public policy considerations, and therefore can not be classified as choices that fall within the discretionary function exception.
Because none of the four challenged actions falls within the discretionary function exception of the FTCA, the court concludes that it has jurisdiction over the third-party complaint.
C. Evidence Regarding Conformity to Border Patrol Handbook
The court's analysis is not complete at this point. In so far as the court has identified mandatory duties on the part of the Border Patrol, it must next determine whether the Border Patrol acted in conformity with the mandatory requirements as set forth in the Handbook. Gaubert, 499 U.S. at 324.
Turning to that issue, the court must first resolve a dispute between the parties over the meaning of the word "operation" as used on page 9-8 of the Border Patrol Handbook, which requires the Border Patrol to select a checkpoint site such that "oncoming traffic [has] a clear, unobstructed view of the operation for at least one-half mile." Exh. C, Doc. 30. Defendant argues that the quoted provision requires the Border Patrol to select a location that affords the motorist an opportunity to see the location at which the Border Patrol actually stops vehicles. Memorandum of Law in Opposition to Summary Judgment, Doc. 35, at 11. The Border Patrol asserts that the word "operation" actually refers to the beginning of the signs leading up to the location where the Border Patrol conducts its investigation. Under that construction, it argues, its mandatory duty was met. Memorandum of Law in Support of Summary Judgment, attached to Notice of Motion, Doc. 29, at 18-20.
As already stated, an agency's interpretation of its own regulations is entitled to judicial deference. Kelly, 924 F.2d at 361. If an agency's interpretation is a reasonable construction of the regulation, the court must uphold that interpretation. See Detsel by Detsel v. Sullivan, 895 F.2d 58, 62-63 (2d Cir. 1990). In the instant case, the Border Patrol's interpretation is reasonable in light of the imprecise use of the term "operation" in the Border Patrol Handbook.
Other than the passage at issue, the word "operation" appears in the Handbook only once. The introduction to Chapter Nine of the Handbook states that "traffic check is a border patrol operation that consists of the examination of occupants of vehicles on roads and highways . . . ." Handbook, Exh. C, Doc. 30, at 9-1. This statement seems to equate "operation" with the process of examining vehicles, which takes place where vehicles actually stop. The context of the statement implies that "operation" applies to the actual stopping point.
Yet the Handbook clearly distinguishes between the traffic checkpoint operation as a whole, and the "actual stopping point." Id. at 9-5 ("STOP AHEAD signs . . . are placed on each side of the highway at least one-half mile from the actual stopping point"). Because the Handbook specifies the actual stopping point in some instances, the court concludes that had the INS intended the term "operation" in the disputed passage to mean "the actual stopping point," as defendant asserts, it simply would have said so.
The court holds that the Border Patrol's interpretation of "operation" as the entire setup, from the first warning signs to the actual stopping point, is reasonable and therefore controls. Under that interpretation, there is no genuine issue of material fact as to whether the Border Patrol met the requirement of providing a half-mile unobstructed view of the checkpoint operation. Therefore, in so far as the Border Patrol's motion for summary judgment is based on defendant's claim that the Border Patrol failed to provide a one-half mile unobstructed view of the checkpoint operation, the motion is granted.
As to the second mandatory duty of the Border Patrol, to employ a minimum number of safety control devices, a genuine issue of fact exists. Defendant states in his deposition that the only traffic control devices he saw were a flashing yellow arrow, indicating that drivers were required to change lanes, followed by a series of traffic cones. Deposition Transcript, Exh. 1, Doc. 18, at 74. Defendant's deposition testimony is somewhat contradicted by the affidavit of Jack Humphreys, defendant's own expert, who notes that flashing red and yellow lights were employed. Humphreys Affidavit, Doc. 17, at PP 4-5. Nonetheless, Humphreys expresses no opinion as to whether the minimum number of safety control devices were employed by the Border Patrol.
Plaintiff's testimony alone is enough to create an issue of fact for a jury. While plaintiff's evidence that the Border Patrol failed to meet its obligation to supply a minimum number of traffic control devices is decidedly weak, the court's analysis is limited to the question of whether such evidence exists. As noted by the Second Circuit, "the district court is charged upon a motion for summary judgment with determining whether there is sufficient evidence to sustain a verdict for the nonmoving party; it should not weigh the evidence and resolve factual issues raised." Eye Assocs., P.C. v. Incomrx Systems, L.P., 912 F.2d 23, 26 (2d Cir. 1990); see Murphy v. Provident Mutual Life Ins. Co., 923 F.2d 923, 930 (2d Cir. 1990) (Kearse, J., dissenting), cert. denied, 116 L. Ed. 2d 40, U.S. , 112 S. Ct. 65 (1991) ("Any weighing of the evidence is the prerogative of the finder of fact, not an exercise of the court on summary judgment.") Because a jury conceivably could credit defendant's recollection as to the number and type of traffic control devices employed, the Border Patrol's motion for summary judgment is denied to the extent that it addresses the adequacy of the traffic control devices utilized in the checkpoint operation.
D. Proximate Cause
The Border Patrol also seeks summary judgment on the ground that defendant can not show that any defect in the checkpoint was the proximate cause of the injury to Sanchez. The Border Patrol argues that Bellefeuille cannot show that the checkpoint was a substantial cause of the events which produced the injury, and that assuming for the sake of argument that employees of the Border Patrol were negligent in establishing or maintaining the checkpoint, defendant's inability to stop his car was not a part of a natural sequence of events flowing from such negligence. Memorandum of Law in Support of Summary Judgment, attached to Notice of Motion, Doc. 29, at 23. Defendant responds that the faulty design of the checkpoint contributed to the accident by delaying him from taking timely corrective action. Memorandum of Law in Opposition to Summary Judgment, Doc. 35, at 24-25.
Proximate cause is defined as a cause "which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred." Caraballo v. United States, 830 F.2d 19, 22 (2d Cir. 1989). The test for proximate cause is whether the allegedly negligent acts are a substantial factor in the sequence of causation, and whether the injury is reasonably foreseeable or anticipated as a natural consequence. Standardbred Owners Ass'n v. Roosevelt Raceway, 985 F.2d 102, 104 (2d Cir. 1993). Because "questions concerning what is foreseeable and what is normal may be the subject of varying inferences," Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, , 414 N.E.2d 666, , 434 N.Y.S.2d 166, 170 (1980), "proximate cause is almost invariably a factual issue" to be determined by a jury. Monell v. City of New York, 84 A.D.2d 717, , 444 N.Y.S.2d 70, 71 (1st Dep't 1981).
This case is no exception to the general rule. Assuming for the sake of argument that the Border Patrol was negligent in its design or maintenance of the checkpoint, a jury must decide whether that negligence was a substantial cause of the resulting injury to plaintiff. Defendant presents evidence, consisting of his own testimony, that the faulty design of the traffic checkpoint limited the amount of time he had to react to the malfunction of his cruise control. Defendant's Affidavit, Exh. 1 attached to Doc. 35, at P 39. Given this evidence, the court can not state as a matter of law that a negligently designed or maintained checkpoint was not a substantial factor in the accident. Nor can the court state as a matter of law that the injury to plaintiff was not a reasonably foreseeable result of such negligence.
Because a genuine issue of material fact exists as to whether any negligence on the part of the Border Patrol was a proximate cause of plaintiff's injury, the Border Patrol's motion for summary judgment is denied to the extent that it is based upon proximate cause.
In sum, third-party defendant Border Patrol's motion for summary judgment dismissing the third-party complaint is granted as to defendant and third-party plaintiff Bellefeuille's claim that the Border Patrol failed to provide a one-half mile unobstructed view of the checkpoint operation. In all other respects third-party defendant Border Patrol's motion for summary judgment is denied. All parties are directed to continue preparations for trial.
It is So Ordered.
Dated: June 20, 1994
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE