Sanchez v. U.S.A

• Decision Date: 31 March 2010
• Docket Number: Civil No. 09-1260 (DRD).
• Citation: 707 F.Supp.2d 216
• Parties: Juanita SANCHEZ, et al., Plaintiffs,v.UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

707 F.Supp.2d 216

Juanita SANCHEZ, et al., Plaintiffs,v.UNITED STATES of America, et al., Defendants.

Civil No. 09-1260 (DRD).

United States District Court D. Puerto Rico.

March 31, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gabriel I. Penagaricano-Soler, Gabriel I. Penagaricano Law Office, Guaynabo, PR, John Arthur Eaves, Jr., John Arthur Eaves Law Offices, Jackson, MS, PHV Hiram Eastland, Jr., Eastland Law Offices PLLC, Greenwood, MS, Steven R. Perles, Perles Law Firm, P.C., Washington, DC, for Plaintiffs.

John Adam Bain, Margaret Jane Mahoney, U.S. Department of Defense, Washington, DC, Miguel A. Fernandez-Torres, Isabel Munoz-Acosta, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendants.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, District Judge.

I. BACKGROUND

Plaintiffs in the instant action, which arises under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq, are 7,125 residents of the island of Vieques who allege that for six decades they shared the 18-mile-long island with the United States Navy (“the Navy”), a neighbor who Plaintiffs allege illegally used explosives, ordnance and contaminants on the island in open violation of several federal laws. Plaintiffs further contend that the Navy never warned them of the safety risks associated with their operations and that, eventually, Plaintiffs suffered severe health damages resulting from the environmental impact of the Navy's operations.

At the outset, the Court notes that Plaintiffs in the instant case bear a heavy burden as they are bound by the precedent established in Abreu v. United States, 468 F.3d 20 (1st Cir.2006), wherein the First Circuit established that the discretionary function exception to the FTCA applied to claims arising from the same Naval operations in Vieques ¹ of which Plaintiffs complain. Plaintiffs attribute these damages to the Navy's use of the island and its surrounding waters as a firing range and weapons testing ground. On September 5, 2007, Plaintiffs in the instant case filed a Complaint (Docket No. 3) in the District Court for the District of the District of Columbia. Subsequently, on March 11, 2008, Plaintiffs filed their First Amended Complaint (Docket No. 15). Therein, Plaintiffs included eight causes of action arising under Puerto Rican common law: negligence; wrongful death; survival; negligent infliction of emotional distress; trespass; nuisance; civil taking; and fear and fright. Initially, Plaintiffs named as Defendants the United States of America, the United States Department of Defense, Secretary of Defense Robert M. Gates, the United States Department of the Navy, and Secretary of the Navy Donald C. Winter (collectively “Defendants”). Subsequently, however, Plaintiffs voluntarily dismissed the case against all Defendants except the United States (Docket No. 19).

In the First Amended Complaint, Plaintiffs allege that they suffered injuries and damages as a result of “chronic, long term, negligent and/or deliberate exposure to toxic dust and contamination, hazardous waste and environmental damage” caused by Defendants. Plaintiffs allege that explosives, ordnance and contaminants ² were released into the Vieques environment during the Navy's operation of the Atlantic Fleet Weapons Training Facility (AFWTF) on the island ³ which have damaged both the environment and, by extension, Plaintiffs. Plaintiffs further aver that toxins, heavy metals and contaminants remain in the environment as Defendants did not safely dispose of the waste resulting from their operations on the island. Additionally, Plaintiffs claim that their injuries and damages are the result of long-term exposure to the toxins and hazardous waste released into the environment during the Navy's operations of warfare testing programs ⁴ on Vieques. Plaintiffs note that the cancer rate on Vieques is 30% higher than on the mainland.

Plaintiffs cite several federal statutes which they claim Defendants violated in the course of their operations on Vieques. First, Plaintiffs aver that Defendants violated internal guidelines, policies and directives under the Federal Facilities Compliance Act (“FFCA”), 42 U.S.C. § 6961. They assert that this statute “imposed ... on the ... Navy a duty to follow all pertinent and relevant federal and local regulations and statutes on Vieques.” Plaintiffs allege that Defendants' violative behavior consisted of poisoning and destroying the environment, as well as Defendants' subsequent failure to clean up the testing area in order to protect the residents of the island. Plaintiffs note that the Environmental Protection Agency (“EPA”) has instituted enforcement actions to require the Navy to conduct groundwater studies and clean up any contamination found through these studies.

Further, Plaintiffs allege that the Navy violated a requirement of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq, by operating the open burning/open detonation facility at the AFWTF without a valid RCRA permit. Plaintiffs also make brief reference to the fact that the EPA has listed the AFWTA on the Federal Facilities section of the National Priorities List, which guides the EPA in determining which sites where hazardous substances, pollutants or contaminants have been released warrant further investigation by the EPA.

Plaintiffs also assert that “further mandatory internal environmental regulations were violated by the Defendants' (sic) bombing activities and weapons exercises, burning and open detonation of hazardous waste, and failure to remediate the environmental despoliation.” Plaintiffs point to 32 CFR § 700.832 for the proposition that Navy commanders must comply with federal, state and local authorities to prevent, control and abate environmental pollution, as well as for the proposition that officers must report any inability to comply with environmental law up the chain of command. Plaintiffs also cite 10 U.S.C. § 2705 for the proposition that the Secretary of Defense was required to take action to ensure that the EPA and state and local authorities received notice of events related to the release of hazardous substances. Plaintiffs further note that 10 U.S.C. § 2705 mandates that, if the Secretary established a technical review committee or restoration advisory board, he would be required to consult the board as to many issues pertaining to the environment.

Finally, Plaintiffs allege that OPNAVINST 5090.1B CH-2 § 20-5.1 establishes that the Navy's policy is to “monitor compliance with environmental requirements; identify problems, their root causes, process improvements, and pollution prevention opportunities; and, ensure appropriate corrective actions and process improvements are completed.” Ultimately, Plaintiffs' claim now centers on a theory that these regulations “created a web of reporting requirements that should have triggered a warning to the people of Vieques” and that such warnings have never been issued.

On March 16, 2009, after the U.S. District Court for the District of the District of Columbia granted Defendant the United States' (hereinafter “Defendant”) request that the case be transferred for lack of venue (Docket No. 22), the case was transferred to the U.S. District Court for the District of Puerto Rico. Subsequently, Defendant filed a motion to dismiss for lack of subject matter jurisdiction on May 18, 2009 (Docket No. 30). Therein, Defendant argues first that Plaintiffs bear the burden of proving that subject matter jurisdiction under the FTCA and that the Court must address the issue of whether it exercises subject matter jurisdiction in the instant case prior to evaluating the case on its merits pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendant further argues that the determination of whether Defendant waived its sovereign immunity to Plaintiff's damages claims under the FTCA is, in fact, a determination regarding the existence of subject matter jurisdiction and should, therefore, be addressed at the outset of the instant case.

Defendant then asserts that the FTCA's discretionary function exception deprives the Court of subject matter jurisdiction in the instant case because (1) the challenged governmental conduct is discretionary rather than mandatory ⁵ and (2) the challenged conduct was based in public policy. Thus, Defendant argues that sovereign immunity is not waived under the FTCA where, as here, a plaintiff's claims allege violations of regulatory provisions of a statute that would undermine the policies of the regulatory statute. To its motion to dismiss, Defendant appended Chapters 1 through 3.2 of a study prepared for the Secretary of Navy in 1999 entitled “The National Security Need for Vieques,” the text of OPNAVINST 5090.1B, Chapters 1 and 20, and excerpts from the legislative history of the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”).

On June 15, 2009, Plaintiff opposed Defendant's motion to dismiss (Docket No. 42). Therein, Plaintiff first cites case law from the Third Circuit that supports the proposition that a challenge to subject matter jurisdiction may, in reality, necessitate a factual inquiry. Plaintiff then proceeds to argue against the application of the discretionary functions exception in the instant case, asserting that Defendant's actions violated specific mandatory directives and were not susceptible to policy considerations. Specifically, Plaintiffs assert that Defendants failed to comply with its National Pollution Discharge Elimination System (“NPDES”) permit, which constituted a violation of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387. Plaintiffs underscore this argument by stating that, by August 27, 1999, the EPA determined that the Navy had violated its permit over 102 times, and that the EPA found that the Navy violated the monitoring requirements of its permit. Plaintiffs further argue that Defendant conducted training exercises...