Osi, Inc. v. U.S.

• Decision Date: 12 March 2002
• Docket Number: No. 01-13032.,01-13032.
• Citation: 285 F.3d 947
• Parties: OSI, INC., a corporation, Plaintiff-Appellant, v. The UNITED STATES of America, Donald Rumsfeld, Honorable, as Secretary of Defense, F. Whitten Peters, Honorable, as Acting Secretary of the Air Force, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

285 F.3d 947

OSI, INC., a corporation, Plaintiff-Appellant, v. The UNITED STATES of America, Donald Rumsfeld, Honorable, as Secretary of Defense, F. Whitten Peters, Honorable, as Acting Secretary of the Air Force, Defendants-Appellees.

No. 01-13032.

United States Court of Appeals, Eleventh Circuit.

March 12, 2002.

Robert P. Fowler, Birmingham, AL, for Plaintiff-Appellant.

David S. Fishback, J. Charles Kruse, J. Patrick Glynn, U.S. Dept. of Justice, Todd S. Kim, U.S. Dept. of Justice, ENRD-Appellate Section, Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS,^* District Judge.

ANDERSON, Chief Judge:

OSI, Inc. is the current owner of property adjacent to Maxwell Air Force Base near Montgomery, Alabama. The soil and groundwater have been contaminated by Air Force landfills on and near their property. OSI filed this suit alleging state law tort claims against the United States, pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. They later amended their complaint to include violations of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675. The district court dismissed the FTCA claims for lack of jurisdiction, on the grounds that the discretionary function exception applied, and granted summary judgment on the RCRA and CERCLA claims. We affirm the dismissal of the FTCA claims, but vacate and remand the RCRA and CERCLA decisions for further consideration by the district court.

I. FACTS

A. Factual Background

For thirty years, beginning in 1956, the U.S. Air Force maintained three solid waste landfills on and near Maxwell Air Force Base near Montgomery, one of which was located on private property leased by the Air Force. The three landfills, LF4, LF5, and LF6, were used for "household garbage, paper, wood, scrap metal, paint and paint cans, solvent sludges, and pesticide containers." Some of the waste also apparently contained hazardous materials. The Air Force ceased using LF4 in the early 1970s when the lease on the private property expired. LF5 was used from then until 1974, at which point LF6 was opened and used through 1986. LF6 was closed in 1993.

In 1979, OSI, Inc., a manufacturer of metal buildings, purchased property which includes the site of LF4. The property is adjacent to Maxwell AFB and just north of the sites of LF5 and LF6. In July, 1997, the Air Force alerted OSI to possible groundwater contamination from the landfills when it asked to place monitoring wells on the property. OSI then commissioned its own study of the contamination.

It appears that there are hazardous compounds in the soil, some of which exceed federal statutory limits. There is also apparently contamination in the groundwater which flows through OSI's property in a path toward the Alabama River and the City of Montgomery. The Air Force has been studying the problem and developing a restoration program. OSI challenges the scope of the plan and seeks compensation from the government for loss of property value and past and future costs arising from the contamination.

B. Procedural History

OSI, Inc. filed suit against the federal government in August, 1998, pursuant to the FTCA. It alleged tortious injuries from contamination by the landfills. Both parties moved for summary judgment. While the motions were pending, the government made an additional motion to dismiss for lack of subject matter jurisdiction. According to the government, the actions of the Air Force were subject to the discretionary function exception of the FTCA.

After completion of the briefing on the motion to dismiss and the discretionary function issue, OSI filed a second amended complaint, for the first time adding claims under RCRA and CERCLA. Both parties again moved for summary judgment on all claims.

In March, 2001, the district court filed orders on all pending motions. Among its decisions, it granted the government's motion to dismiss the FTCA claims for lack of subject matter jurisdiction, ruling that the discretionary function exception applied to the decisions involving the landfills. By separate order, it also granted the government summary judgment on the RCRA and CERCLA claims. The court made no written factual findings pertaining to these claims, relying instead on a single statement adopting the legal reasoning and arguments posited by the government. OSI now appeals these decisions.

II. DISCUSSION

A. The Tort Issues

1. The Discretionary Function Exception

The FTCA does not provide for a complete waiver of the federal government's sovereign immunity. The liability of the United States under the FTCA is subject to the exceptions contained in 28 U.S.C. § 2680, including the discretionary function exception now at issue. That exception provides that the government is not liable for

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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).

We employ a two-part test for applying the discretionary function exception. First, we ask whether the act "involv[es] an element of judgment or choice." U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. U.S., 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988)); Hughes v. U.S., 110 F.3d 765, 767 (11th Cir.1997). "[I]f a `federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,'" there is no judgment or choice involved. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59); see also Phillips v. U.S., 956 F.2d 1071, 1076 (11th Cir.1992) ("Where there exists a mandatory responsibility, there is no room for a policy choice."). The inquiry focuses on "whether the controlling statute or regulation mandates that a government agent perform his or her function in a specific manner." Hughes, 110 F.3d at 768. A decision will be subject to the exception unless "`a federal statute, regulation, or policy specifically prescribes a course of action embodying a fixed or readily ascertainable standard.'" Id. (quoting Autery v. U.S., 992 F.2d 1523, 1529 (11th Cir. 1993)).

If the conduct does "involv[e] an element of judgment or choice," we then look at "`whether that judgment is of the kind that the discretionary function exception was designed to shield.'" Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273 (quoting U.S. v. Varig Airlines, 467 U.S. 797, 813, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984)). The exception is 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. (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765). Thus, "when properly construed, the exception `protects only governmental actions and decisions based on considerations of public policy.'" Gaubert, 499 U.S. at 323, 111 S.Ct. at 1274 (quoting Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959).

Under this second-prong of the test we look at whether the questioned act is "`susceptible to policy analysis.'" Hughes, 110 F.3d at 768 (quoting Powers v. U.S., 996 F.2d 1121, 1125 (11th Cir. 1993)). The exception does not require there to have been actual "weighing of policy considerations." Hughes, 110 F.3d at 768. Nor is it limited to decisions at the policy or planning level; it may include day-to-day management. Gaubert, 499 U.S. at 325, 111 S.Ct. at 1275; Hughes, 110 F.3d at 768. We focus on "`the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one we would expect inherently to be grounded in considerations of policy.'" Autery, 992 F.2d at 1530-31 (quoting Baum v. U.S., 986 F.2d 716, 720-21 (4th Cir.1993)). If the decision is inherently one allowing discretion, we presume that the act was grounded in policy whenever that discretion is employed. Gaubert, 499 U.S. at 324, 111 S.Ct. at 1274; Hughes, 110 F.3d at 768.

2. Analysis

In the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).¹ Thus, since the government has asserted lack of subject matter jurisdiction, OSI must prove that the discretionary function exception does not apply to the disposal of the landfill material. It makes two arguments in this regard. First, it argues that the manuals which govern landfill decisions created mandatory obligations for the Air Force, obligations the Air Force failed to fulfill. Second, with respect to LF6, OSI maintains that RCRA creates an alternate mandatory obligation, which the Air Force also failed to fulfill.

As a preliminary matter, we find that OSI did not raise this RCRA argument in the district court. "As a general rule, an appellate court will not consider a legal issue or theory raised for the first time on appeal." Formby v. Farmers and Merchs. Bank, 904 F.2d 627, 634 (11th Cir.1990) (quoting Lattimore v. Oman Constr., 868 F.2d 437, 439 (11th Cir.1989) (per curiam)). We see no reason to warrant departure from the general rule here. The briefing on the discretionary function jurisdictional issue was completed before OSI amended its complaint to include allegations of RCRA violations. More than ten months passed...