Abreu v. U.S.

Citation468 F.3d 20
Decision Date14 November 2006
Docket NumberNo. 05-1889.,05-1889.
PartiesMaría G. ABREU, et al., Plaintiffs, Appellants, v. The UNITED STATES, Donald H. Rumsfeld, Secretary of Defense, Robert B. Pirie, Acting Secretary of the Navy, General James James, Commander of the Marine Corps, Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Carl E. McAfee and Celina Romany Siaca, with whom Celina Romany Law Offices was on brief, for appellants.

Mark B. Stern, with whom Peter D. Keisler, H.S. García, Gregory G. Katsas and Alisa B. Klein were on brief, for appellees.

Before BOUDIN, Chief Judge, TORRUELLA and DYK*, Circuit Judges.

DYK, Circuit Judge.

This is a suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C §§ 1346(b), 2671-2680 (2000). The plaintiffs, Abreu et al., sought money damages from the United States for personal injuries and property damage allegedly caused by the United States Navy's operation of the Atlantic Fleet Weapons Training Facility ("AFWTF") on Vieques Island, Puerto Rico. Acevedo, et al. v. United States, Abreu, et al. v. United States, Nos. 04-1232, -1372 (D.P.R. Apr. 25, 2005) (consolidated). The United States District Court for the District of Puerto Rico dismissed their claims for want of subject matter jurisdiction, holding that the claims were barred by the FTCA's discretionary function exception, 28 U.S.C. § 2680(a). We affirm.

I.
A.

The FTCA provides a limited waiver of the federal government's sovereign immunity for claims of "injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government . . . 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." 28 U.S.C. § 1346(b)(1). "[F]or liability to arise under the FTCA, a plaintiff's cause of action must be `comparable' to a `cause of action against a private citizen' recognized in the jurisdiction where the tort occurred, and his allegations, taken as true, must satisfy the necessary elements of that comparable state cause of action." Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir.1996) (quoting Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988)).

Even where the government conduct would create state tort liability in a suit against a private party, the FTCA provides that sovereign immunity is not waived if the challenged governmental action involved the exercise of discretion. 28 U.S.C. § 2680(a). This provision is known as the discretionary function exception. In general, that exception, in turn, is inapplicable if the government action is contrary to the requirements of Federal law. United States v. Gaubert, 499 U.S. 315, 324-25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). This case primarily concerns the scope of the exception to the discretionary function exception.

B.

This court described the history, layout, and operation of the AFWTF in detail in Romero-Barceló v. Brown, 643 F.2d 835 (1st Cir.1981). We review that background only briefly here.

The United States Navy acquired land and built facilities on Vieques Island between 1941 and 1943. Initially, the Navy used the Vieques facilities primarily to conduct Atlantic Fleet Marine Force maneuvers and training. In 1960, the Navy began using live munitions in naval gunfire and air-to-ground targeting exercises on Vieques. In 1973, additional live-ammunition weapons training exercises were transferred from Culebra Island (also off the coast of Puerto Rico) to Vieques. Along with the various training facilities, the Navy operated an open burning/open detonation facility at the AFWTF. The open burning/open detonation facility, located on the easternmost end of Vieques, was used to detonate or otherwise incinerate unused ordinance that was stored on the western end of the Island. Concerned with the environmental impact of the AFWTF, in 1977, the government of Puerto Rico initiated litigation which eventually resulted in a district court order requiring the Navy to comply with certain federal environmental statutes, including the Clean Water Act, 33 U.S.C. §§ 1251-1357 (2000), and the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., in operating the AFWTF.1 The Navy obtained an interim permit for the AFWTF in 1980.

In September 1983, the Navy and the government of Puerto Rico executed a memorandum of understanding in which the Navy agreed to make certain changes. On January 10, 2000, the United States Environmental Protection Agency ("EPA") issued, with the Navy's consent, an order requiring certain changes at the AFWTF. The EPA made compliance with the consent order a condition for final issuance of a permit that the Navy was required to obtain under the federal Resource Conservation and Recovery Act ("RCRA"). 42 U.S.C. § 6901 et seq. The Navy needed to obtain a final permit in order to continue to operate the open burning/open detonation facility in compliance with the statute. In May 2000, the Navy discontinued live-fire exercises at the AFWTF. On April 30, 2003, the Navy terminated all military exercises on Vieques Island.

The plaintiffs, residents of Vieques, filed suits against the United States under the FTCA on March 19 and April 27, 2004. They alleged that the Navy's past military exercises and waste disposal activities at the AFWTF had exposed them to hazardous substances such as Agent Orange, depleted uranium, napalm, and other ordinance with explosive components, as well as harmful noise pollution. The plaintiffs sought damages for physical injury, emotional distress and property damage. The district court consolidated the actions.

On February 5, 2005, the district court rejected the government's contention that the suits were time-barred under the FTCA's two-year statute of limitations, 28 U.S.C. § 2401(b). The court held that the suits were timely despite the fact that the allegedly harmful governmental actions occurred more than two years before the administrative complaints were filed, concluding that the plaintiffs had alleged "continuing violations." However, the court also held that the continuing tort theory did not allow the plaintiffs to recover damages for injuries sustained more than two years before the administrative complaints were filed.

On April 22, 2005, the district court granted the government's motion to dismiss for lack of subject matter jurisdiction. With respect to the claims that plaintiffs pursue on appeal, the district court concluded that jurisdiction was lacking because the Navy's allegedly harmful conduct was within the discretionary function exception.2 In the alternative the court concluded that even if the discretionary function did not apply, the plaintiffs' claims nevertheless failed because the plaintiffs had not established any causal connection between the governmental conduct and their injuries. Finally, the district court denied the plaintiffs' request for discovery, concluding that additional discovery would serve no purpose in light of the court's jurisdictional determination.

The plaintiffs timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 (2000).

II.

We address first the plaintiffs' challenge to the district court's determination that the discretionary function exception applies.

A.

In a suit under the FTCA, the district court's jurisdiction is limited by 28 U.S.C. § 1346(b). Only claims properly within the scope of the FTCA's waiver of sovereign immunity in 28 U.S.C. § 2674 are cognizable. Another provision lists the exceptions to FTCA liability, and provides that if one of the exceptions applies, "[t]he provisions of . . . section 1346(b) of this title shall not apply." 28 U.S.C. § 2680. One such exception is the discretionary function exception, which provides that sovereign immunity is not waived for 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, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Thus, if the discretionary function exception applies, the jurisdictional grant of section 1346(b) does not, such that "the [government] is completely immune from suit, and the claim must be dismissed for lack of subject matter jurisdiction." Santoni v. Potter, 369 F.3d 594, 602 (1st Cir.2004) (citing Kelly v. United States, 924 F.2d 355, 360 (1st Cir.1991)).3

B.

The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense ("Varig Airlines"), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Congress, in enacting the discretionary function exception, intended 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." Id. at 814, 104 S.Ct. 2755. In determining whether conduct involves a discretionary function, we first ask whether "the conduct itself [is] discretionary." Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st Cir.2006) (internal quotation marks omitted); see also Irving v. United States, 162 F.3d 154, 162 (1st Cir.1998) (en banc); Wood v. Unites States, 290 F.3d 29, 36 (1st Cir.2002). To be discretionary, the conduct must involve "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)); see also Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 97 L.Ed. 1427 (1953).

Assuming that the challenged conduct "involves an element of judgment," we next...

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