671 F.3d 86 (1st Cir. 2012), 10-1648, Sanchez ex rel. D.R.-S. v. United States

Docket Nº:10-1648.
Citation:671 F.3d 86
Opinion Judge:LYNCH, Chief Judge.
Party Name:Juanita S
Attorney:Carter Glasgow Phillips, with whom John Arthur Eaves, Jr., and Gabriel I. Pe
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges. TORRUELLA, Circuit Judge (Dissenting).
Case Date:February 14, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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671 F.3d 86 (1st Cir. 2012)

Juanita SÁNCHEZ, on behalf of minor child D.R.-S.; 7,124 Additional Plaintiffs Found in Attachment A, Plaintiffs, Appellants,

v.

UNITED STATES, Defendant, Appellee.

No. 10-1648.

United States Court of Appeals, First Circuit.

February 14, 2012

Heard June 9, 2011.

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[Copyrighted Material Omitted]

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Carter Glasgow Phillips, with whom John Arthur Eaves, Jr., and Gabriel I. Peñagarícano-Soler were on brief, for appellants.

Eric W. Bloom and Winston & Strawn LLP on brief for Municipality of Vieques, amicus curiae.

Adam Bain, Senior Trial Counsel, Torts Branch, Environmental Torts, with whom Tony West, Assistant Attorney General, Civil Division, J. Patrick Gylnn, Director, Torts Branch, Environmental Torts, David S. Fishback, Assistant Director, Torts Branch, Environmental Torts, Jane Mahoney, Senior Trial Counsel, Torts Branch, Environmental Torts, Rosa E. Rodríguez-Vé lez, United States Attorney, and Nelson Jose Pé rez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

Juanita Sánchez and 7,124 additional named plaintiffs appeal from a Rule 12(b)(1) dismissal of their claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. Sánchez and her co-plaintiffs assert they have suffered tort injuries because of the United States Navy's alleged negligence in emitting certain pollutants during military exercises (which ended in 2003) at the Atlantic Fleet Weapons Training Facility (AFWTF) on Vieques Island, Puerto Rico. The United States responds that the limited Congressional abrogation of sovereign immunity in the FTCA does not extend to these claims under the discretionary function exception to the FTCA, controlling Supreme Court precedent, and our own controlling precedent in Abreu v. United States, 468 F.3d 20 (1st Cir.2006). Because Congress did not intend to allow suits by private parties for damages under these circumstances, it has also determined that the federal courts lack jurisdiction over these claims. The Municipality of Vieques has participated as an amicus curiae in support of the plaintiffs' claims.

Residents of Vieques brought a similar FTCA suit in Abreu for damages against the United States alleging that noise and air pollution from the Navy's exercises on Vieques caused them tort injuries. Abreu, 468 F.3d at 23-24. This court affirmed a Rule 12(b)(1) dismissal of the suit for lack of jurisdiction, id. at 23, holding that a damages action under the FTCA was not available against the Navy based on an alleged violation of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. Abreu, 468 F.3d at 29-32. To impose liability under the FTCA because of a federal employee's alleged failure to comply with a mandatory directive is not permissible, we held, if the imposition of liability " would undermine the purposes of the regulatory statute creating the mandatory directive." Id. at 30. Given that Congress expressly precluded compensatory damages for RCRA violations and the plaintiffs' suit would effectively enable them to get damages under the RCRA " under the guise of a FTCA claim," we held that to allow the plaintiffs' suit would undermine clear congressional intent. Id. at 32.

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This case also raises the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), which precludes FTCA actions against government conduct which is both within the discretion of the relevant government party and susceptible to policy-related judgments. Abreu, 468 F.3d at 26-28. Abreu raised doubts that FTCA suits may be brought against government parties regulated by a federal statutory scheme, as opposed to government parties that exercise regulatory authority pursuant to such a statutory scheme, but did not resolve the question.1 Id. at 27-28.

The plaintiffs in this suit argue that neither Abreu nor the discretionary function exception to the waiver of sovereign immunity precludes their FTCA claim here. They have four theories, some of which require dismissal under Abreu and some under the discretionary function bar on jurisdiction. They assert that the Navy is susceptible to suit and acted beyond its discretion because it allegedly (1) violated mandatory directives concerning water pollution issued pursuant to the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387; (2) violated a pair of permits, which are not part of the record, that purportedly forbid firing depleted uranium bullets on Vieques; (3) violated unidentified internal regulations, policies, directives, and orders; and (4) failed to comply with a purported duty to warn the plaintiffs about pollution.

The district court rejected these arguments as well as several others not raised on appeal. Sanchez v. United States, 707 F.Supp.2d 216 (D.P.R.2010). We affirm the dismissal with prejudice for lack of jurisdiction.

I.

This court's decisions in Abreu and Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir.1981), rev'd sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), describe in detail the history of the Navy's activities on Vieques. See Abreu, 468 F.3d at 23-24; Romero-Barcelo, 643 F.2d at 838-40. In brief, the Navy used 22,000 of the island's 33,000 acres as a training ground and live ordnance range at various points between 1941 and 2003. It established an ammunition facility on the western end of the island and used the eastern half of the island as a training range, which included a " live impact area" and an adjacent " maneuver area." Training exercises incorporated live munitions to simulate combat conditions, including artillery, mortar, small arms fire, naval surface fire, and aircraft strikes. The Navy also operated an open burning/open detonation facility on the island, where it incinerated and detonated unused ordnance. In May 2000, the Navy discontinued all live fire training exercises; all military exercises in Vieques were terminated as of April 30, 2003.

The 7,125 named plaintiffs filed this suit in September 2007, four years after the cessation of military operations on Vieques.2 They allege that the Navy's operations on Vieques produced hazardous and toxic waste and that the Navy acted negligently in storing and disposing of this

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waste. In their complaint, the plaintiffs asserted eight state-law causes of action against the United States 3 under the FTCA, said to be: negligence, wrongful death, survival, negligent infliction of emotional distress, trespass, nuisance, civil taking, and fear and fright. The plaintiffs rely on a variety of ecological studies they assert demonstrate both heightened levels of certain heavy metals and other contaminants on Vieques and a link between these levels and higher rates of adverse health outcomes like infant mortality, cancer, hypertension, cirrhosis of the liver, and diabetes.

In their complaint, the plaintiffs also asserted that the Navy actions allegedly giving rise to their state-law claims for alleged injury 4 violated requirements outlined in various federal statutes, regulations, and policies, and thus were not within the Navy's discretion. Only three of these purported requirements are relevant on appeal: (1) a permit issued under the CWA concerning water-based pollutants, (2) a pair of permits not in evidence concerning the discharge of depleted uranium bullets, and (3) unnamed internal regulations, policies, directives, and orders. The complaint also included the assertion, reasserted on appeal, that the Navy negligently failed to warn the plaintiffs about the pollution.

As to the first theory and the permit under the CWA, the Environmental Protection Agency (EPA) issued National Pollutant Discharge Elimination System (NPDES) Permit No. PRG990001 to the Navy's AFWTF in 1984. The Navy had been ordered to apply for the permit by a federal district court. See Weinberger, 456 U.S. at 315, 102 S.Ct. 1798. In Romero-Barcelo, the federal courts found that " the discharge of ordnance had not polluted the waters" of Vieques, see Weinberger, 456 U.S. at 315, 102 S.Ct. 1798, and what the Navy had failed to do was to apply for an NPDES permit. Indeed, the Supreme Court reversed this court and held that the issuance of an injunction against the Navy was not required. Id. at 311-19, 102 S.Ct. 1798. The Navy did apply for a permit in 1979, and it contested Puerto Rico's contention that it was not complying with CWA water quality standards. Id. at 315 n. 9, 102 S.Ct. 1798.

The NPDES permit, incorporating certain requirements set by the Environmental Quality Board of Puerto Rico, regulated the Navy's discharge of ordnance within a specified geographic area of ocean around Vieques. In relevant part, the permit required that the Navy maintain water concentrations of certain compounds below the higher of (1) specific numerical requirements and (2) natural background concentration levels. The permit stated that " at no time shall the maximum values contained in the effluent exceed the water quality standards after mixing with the receiving water."

The plaintiffs allege that the Navy violated the terms of this permit more than a decade ago. They rely in large part on an

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attachment to an August 27, 1999, letter from William L. Muszynski, Deputy Regional Administrator for EPA-Region II, to Frank Rush, Assistant Secretary of Defense. The attachment states that between 1994 and April 1999, based on the Navy's Discharge Monitoring Reports (DMRs), EPA had " documented 102 exceedances of the water quality-based permit limits" under the NPDES. It also stated that " [t]he potential for a greater number of actual...

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