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No. 08-894

 

In the Supreme Court of the United States

DONAL MCLEAN SNYDER, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
DAVID S. FISHBACK
ADAM BAIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether a provision of a 1957 Naval manual elim inated government discretion for purposes of the Fed eral Tort Claim Act's discretionary function exception.

2. Whether there was a sufficient finding that peti tioners' claims were susceptible to public policy consid erations and therefore properly dismissed under the Federal Tort Claim Act's discretionary function excep tion.

3. Whether decisions regarding disposal of indus trial waste at a military base are susceptible to public policy considerations under the Federal Tort Claim Act's discretionary function exception.

In the Supreme Court of the United States

No. 08-894

DONAL MCLEAN SNYDER, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-2a) is not published in the Federal Reporter, but is re printed in 296 Fed. Appx. 399. The opinion of the dis trict court (Pet. App. 3a-15a) is reported at 504 F. Supp. 2d 136.

JURISDICTION

The judgment of the court of appeals was entered on October 16, 2008 (Pet. App. 16a). The petition for a writ of certiorari was filed on January 14, 2009. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Prior to the enactment in 1946 of the Federal Torts Claims Act (FTCA), 28 U.S.C. 1346(b), there was no non-maritime judicial remedy for anyone whose in jury or death was caused by action or inaction of the United States. See Dalehite v. United States, 346 U.S. 15, 24-25 (1953). The FTCA waives the United States' sovereign immunity and renders the United States liable for damages for the

negligent or wrongful act or omission of any em ployee of the Government while acting within the scope of his office or employment, under circum stances 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 oc curred.

28 U.S.C. 1346(b)(1). Congress, however, expressly ex cluded from that waiver

[a]ny claim * * * based upon the exercise or per formance or the failure to exercise or perform a dis cretionary 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). If a tort claim comes within that dis cretionary function exception, the claimant's remedy, if any, lies where it did before 1946-with Congress.

This Court has established a two-part test to deter mine the applicability of the discretionary function ex ception. First, the allegedly negligent act or omission must be a matter of discretion. United States v. Gau bert, 499 U.S. 315, 322 (1991). A government employee's conduct is not discretionary if a "'federal statute, regu lation, or policy specifically prescribes a course of action for an employee to follow,' because 'the employee has no rightful option but to adhere to the directive.'" Ibid. (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

Second, if the government employee had discretion, the discretionary function exception then applies if the conduct involved the kind of judgment that the discre tionary function exception was designed to shield. Gaubert, 499 U.S. at 322-323; Berkovitz, 486 U.S. at 536- 537. Because Congress intended the discretionary func tion exception to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in so cial, economic, and political policy," United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984), the exception applies if the nature of the conduct is "susceptible to policy anal ysis," Gaubert, 499 U.S. at 325. Under this inquiry, the focus must be on the "nature of the conduct" and not the "status" of the allegedly negligent government employee or the employee's "subjective intent in exercising the discretion." Id. at 322, 325 (citation omitted).

2. Petitioner Donal McLean Snyder, Jr., served in the United States Marine Corps. He and his wife, peti tioner Pam Snyder, were stationed at Camp Lejeune, North Carolina, from March through December of 1970. The couple had a son, petitioner Donal McLean Snyder, III (Donal III), in January 1971. The child was diag nosed with a congenital heart defect known as bicuspid aortic valve. In July 1971, petitioners returned to Camp Lejeune and remained there until October 1972. Pet. App. 4a.

In 2004, petitioners filed an action against the United States under the FTCA, alleging that the Camp Lejeune water system had been contaminated with the chemicals trichloroethylene (TCE) and tetrachloroethylene (PCE) because military personnel had used degreasing agents to clean tanks and weapons on the base. Petitioners claimed that the chemicals were disposed of in barrels and directly onto the ground, and, consequently, the chemicals seeped into the soil and eventually migrated to the underground water supply. Petitioners alleged that Pam Snyder, in consuming Camp Lejeune water, was exposed to those chemicals while she was pregnant with Donal III, and that that exposure caused his heart defect. Petitioners' complaint asserted several tort claims alleging that the United States was negligent in disposing of chemicals and failing to protect Camp Lejeune's water supply. Pet. App. 4a-5a.

3. The district court dismissed petitioners' com plaint for lack of subject matter jurisdiction. Pet. App. 3a-15a. Applying the FTCA's two-part discretionary function test, the district court concluded that the excep tion barred petitioners' action. First, the court con cluded that disposal of the chemicals involved govern ment discretion. The court found that there were no specific government provisions regulating TCE and PCE prior to and including the time that petitioners resided at or near Camp Lejeune. Id. at 9a-11a.1 The only provision that petitioners had identified was from a 1957 Naval manual stating that "refuse * * * should not be disposed of where it may pollute surface or un derground waters which are eventually to be used as drinking water." Id. at 9a (quoting Bureau of Medicine and Surgery, U.S. Dep't of the Navy, NAVMED P-5010- 8, Manual of Naval Preventive Medicine, Art. 8-15, at 8-5 (June 1957) (1957 Manual)). The court noted that the 1957 Manual did not mention TCE or PCE and failed to "offer any specific guidance regarding how to dispose of refuse, leaving to military personnel the de termination of whether a particular disposal location would fall within the meaning of the phrase, 'where it [refuse] may pollute surface or underground waters,'" as used in the provision. Id. at 10a (quoting 1957 Man ual, Art. 8-15, at 8-5).

Second, the court found that the alleged negligent conduct was based upon policy considerations, citing factually analogous cases from the Tenth Circuit. Pet. App. 11a-14a (citing Ross v. United States, 129 Fed. Appx. 449 (10th Cir. 2005), and Aragon v. United States, 146 F.3d 819 (10th Cir. 1998)). The court noted that in Ross and Aragon landowners who lived adjacent to mili tary installations claimed that military operations gen erated TCE contamination, which polluted residential well waters. In each case, the Tenth Circuit affirmed dismissal based upon the FTCA's discretionary function exception. Pet. App. 11a-13a. In particular, the district court quoted the Tenth Circuit's statement in Aragon that

[there is] little doubt * * * the Air Force's actions involved policy choices of the most basic kind . . . . Indeed, the record makes clear the military recog nized it needed flexibility to weigh its groundwater protection policies against broader public and mili tary policies; thus it allowed the Air Force to place security and military concerns above any other con cerns.

Id. at 13a (quoting Aragon, 146 F.3d at 826). The court concluded that these "authorities * * * make it clear that these types of decisions by the military regarding operations at Camp Lejeune were the kinds of govern ment policy choices the discretionary function exception was designed to shield." Id. at 14a.

4. In an unpublished decision, the court of appeals affirmed. Pet. App. 1a-2a. Finding that the district judge had "entered a thorough and thoughtful opinion," the court affirmed "[e]ssentially for the reasons stated by the district court." Id. at 1a.

ARGUMENT

The unpublished decision of the court of appeals does not warrant further review. The district court cor rectly applied the two-part test established by this Court for determining the applicability of the Federal Torts Claims Act's discretionary function exception, and the court of appeals correctly affirmed that decision. The court of appeals' non-precedential decision neither conflicts with any decision of this Court or of any other court of appeals, nor presents any issue of general im portance warranting further review.

1. Although petitioners assert (Pet. 5-6) that this case implicates circuit conflicts on two issues, the court of appeals' decision was not predicated on either of those issues. The asserted conflicts, accordingly, provide no basis for reviewing the court of appeals' decision.

a. Petitioners contend (Pet. 5) that this Court's re view is warranted because there is an intercircuit con flict regarding whether the FTCA's discretionary func tion exception is a jurisdictional prerequisite. But the court of appeals' decision was not based on the jurisdic tional nature of the discretionary function exception. In the absence of any indication that that issue had a bear ing on the present case, it provides no basis for further review.

While the district court dismissed the case for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), see Pet. App. 15a, the district court's ultimate resolution of the case was not predicated upon the juris dictional nature of the discretionary function exception. There is no indication in the district court's decision that it placed the burden of proof on petitioners or re solved any factual issues. See id. at 9a-14a. Cf. Aragon v. United States, 146 F.3d 819, 832 (10th Cir. 1998) (placing burden of proof on plaintiff in addressing FTCA's discretionary function exception). To the con trary, the court accepted the petitioners' allegations and assertions of fact at face value. See Pet. App. 4a-5a. The court of appeals, in an unpublished opinion, merely noted that the dismissal was for lack of subject matter jurisdiction and affirmed "[e]ssentially for the reasons stated" by the district court. Id. at 2a. Petitioners have not shown or argued that the decisions below would have been any different had the district court dismissed the case for failure to state a claim, Fed. R. Civ. P. 12(b)(6), or for failure to raise a material issue of triable fact, Fed. R. Civ. P. 56.

Even if the outcome of this case had turned on the court's treatment of the FTCA's discretionary function exception as jurisdictional, no square circuit conflict exists regarding that issue. Citing Clark v. United States, 326 F.3d 911 (2003), petitioners state that the "Seventh Circuit has suggested that the treatment of the discretionary function exception as a jurisdictional prerequisite is not correct." Pet. 5 & n.1. Clark, how ever, did not involve the FTCA's discretionary function exception, but rather the exception for any "claim aris ing in respect of the assessment or collection of any tax." 28 U.S.C. 2680(c). See Clark, 326 F.3d at 913. More over, the court found that treatment of the exception as "jurisdictional," rather than as an element of the plain tiff's statutory right to relief, "does not matter" because the district court had correctly concluded that the plain tiffs' claim could not proceed under the FTCA. Ibid.2

b. Petitioners also assert (Pet. 6) that there is a cir cuit conflict regarding whether federal agency manuals can create mandatory obligations that eliminate govern ment discretion under the FTCA's discretionary func tion exception. The purported circuit conflict, however, is not implicated in this case because the issue was not dispositive or even addressed in the courts below. And this Court's ordinary practice is "not [to] decide in the first instance issues not decided below." National Colle giate Athletic Ass'n v. Smith, 525 U.S. 459, 470 (1999); see United States v. United Foods, Inc., 533 U.S. 405, 417 (2001).

Under the first part of the discretionary function test, a government employee retains discretion as long as no "federal statute, regulation, or policy specifically prescribes a course of action for [the] employee to fol low." Berkovitz v. United States, 486 U.S. 531, 536 (1988). Therefore, to remove discretion, a provision must not only be prescriptive or mandatory, but it must also be specific. Here, the district court's decision did not turn on whether provisions in a federal agency man ual could be mandatory, but rather on the court's finding that the particular provision at issue here was not suffi ciently specific to remove discretion. The district court noted that the provision in the 1957 Manual upon which petitioners relied did not mention TCE or PCE and only addressed "refuse" disposal in general. Pet. App. 10a. The court found that there was no "specific guidance regarding how to dispose of refuse, leaving to military personnel the determination of whether a particular disposal location would fall within the meaning of the phrase 'where it [refuse] may pollute surface or under ground waters.'" Ibid. (emphasis added). That fact bound determination does not merit this Court's review.

In any event, petitioners have failed to demonstrate that there is a conflict in the circuit courts regarding whether provisions in federal agency manuals are inher ently mandatory. Petitioners rely upon a pre-Berkovitz case, Clark v. United States, 660 F. Supp. 1164, 1172- 1173 (W.D. Wash. 1987), aff'd, 856 F.2d 1433 (9th Cir. 1988), in which a district court found that certain mili tary manuals contained mandatory requirements and held that the discretionary function exception did not apply. The Ninth Circuit affirmed that decision in a one sentence order "for the reasons stated in the district court's opinion." 856 F.2d at 1434. In Aragon, the Tenth Circuit stated that "[a]n agency manual, in con trast to a regulation, is not necessarily entitled to the force and effect of law." 146 F.3d at 824 (emphasis add ed). The court noted that a particular manual's qualifi cation that it was "intended for guidance" because of the "varied nature of industrial problems" weighed "heavily against ruling the Manual prescribed mandatory direc tives." Id. at 824-825 (citation omitted). Those case- specific decisions do not create a conflict regarding any general issue of whether provisions in an agency manual should be regarded as mandatory for purposes of the discretionary function exception.

2. The courts below correctly applied the discretion ary function exception. Petitioners' claims of error are unfounded and do not, in any event, provide a basis for this Court's review.

a. Petitioners contend (Pet. 9-11) that the court of appeals erred in affirming the district court's finding that a provision from the 1957 Manual, stating that "refuse, in any form, should not be disposed of where it may pollute surface or underground waters which are eventually to be used as drinking water," was not suffi ciently specific to remove discretion. Pet. 9 (quoting 1957 Manual, Art. 8-15, at 8-5). Petitioners, however, do not show how the provision specifically prescribed a course of action by removing an employee's choice re garding how to act. See Berkovitz, 486 U.S. at 536. As the district court explained, the provision did not men tion TCE or PCE and failed to "offer any specific guid ance regarding how to dispose of refuse," and it left to military personnel the determination of whether dis posal in a particular location might pollute drinking wa ter. Pet. App. 10a.

In essence, petitioners contend (Pet. 11) that the dis cretionary function exception is inapplicable because the regulation is a binding directive against water pollution, and water pollution nevertheless occurred. As courts have consistently held, however, goal-based water pollu tion provisions do not prescribe a specific course of con duct under the first part of the discretionary function test. See OSI Inc. v. United States, 285 F.3d 947, 952 (11th Cir. 2002) (finding that objectives and principles do not create mandatory directives that overcome the discretionary function exception); Aragon, 146 F.3d at 826 (stating that a pollution prevention provision sug gests "principles rather than practices," and "[a]n objec tive, alone, does not equate to a specific, mandatory di rective").3

b. Petitioners also contend (Pet. 15-21) that the dis trict court failed to make a finding on the second part of the discretionary function test, and industrial waste dis posal is not the type of conduct that the exception was designed to shield. Petitioners are mistaken.

The district court plainly found that the alleged neg ligent conduct was grounded in policy considerations. In addressing the second part of the discretionary function test, the court cited the factually analogous Ross and Aragon cases, which involved claims that military opera tions, including waste disposal, caused TCE contamina tion of drinking water. Pet. App. 11a-14a. The district court quoted Aragon's statement that disposal of sol vents at an Air Force Base "involved policy choices of the most basic kind," because "the military recognized it needed flexibility to weigh its groundwater protection policies against broader public and military policies" and to place "security and military concerns above any other concerns." Id. at 13a (quoting Aragon, 146 F.3d at 826). The court then concluded that these "authorities * * * make it clear that these types of decisions by the mili tary regarding operations at Camp Lejeune were the kinds of government policy choices the discretionary function exception was designed to shield." Id. at 14a. Thus, the district court expressly held that the second part of the test was satisfied.

Petitioners incorrectly contend (Pet. 18-19) that the military's decisions regarding the disposal of waste sol vents at Camp Lejeune "do not rise to the level of public policy, but rather are issues dealt with by landfills and waste removal companies on a daily basis." The fact that the conduct at issue may also be performed by pri vate persons on a daily basis is not dispositive of the inquiry. See Gaubert, 499 U.S. at 320, 325 (holding that the discretionary function exception barred challenges to the day-to-day government supervision of a federally- insured savings and loan). The military's waste disposal decisions are necessarily intertwined with, and subject to, the policies underlying the military's broader mis sion, as embodied in Department of Navy regulations. See generally 10 U.S.C. 5063; 32 C.F.R. 700.202. As courts have consistently recognized, waste disposal and environmental protection decisions at military bases implicate public policy considerations. See Ross v. Uni ted States, 129 Fed. Appx. 449, 451-452 (10th Cir. 2005); Aragon, 146 F.3d at 826-827. See also OSI, 285 F.3d at 953 (the second part of the discretionary function analy sis was satisfied where "[t]he nature of the military's function requires that it be free to weigh environmental policies against security and military concerns"); West ern Greenhouses v. United States, 878 F. Supp. 917, 929 (N.D. Tex. 1995) (decisions regarding whether to take measures for environmental protection at a military base were protected by the discretionary function excep tion; such conduct implicated public policy because deci sion-makers must "balance two of the nation's top priori ties: national defense and environmental protection").4

Petitioners erroneously rely (Pet. 12-13) upon this Court's holding in Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955), that the government could be lia ble under the FTCA for failing to maintain a lighthouse after the government had made the discretionary deci sion to operate the lighthouse. As petitioners acknowl edge (Pet. 12) and as this Court recognized in Gaubert, 499 U.S. at 326, the United States did not raise the FTCA's discretionary function exception in Indian Tow ing. Instead, the United States argued that the FTCA provided immunity for "uniquely governmental func tions." Indian Towing, 350 U.S. at 64. This Court ex plained in Gaubert that "[t]he United States was held liable [in Indian Towing], not because the negligence occurred at the operational level but because making sure the light was operational 'did not involve any per missible exercise of policy judgment.'" 499 U.S. at 326 (quoting Berkovitz, 486 U.S. at 538 n.3). Because the conduct at issue in the present case was grounded in public policy considerations, the decisions below are fully consistent with Indian Towing.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
DAVID S. FISHBACK
ADAM BAIN
Attorneys

MAY 2009

1 The district court noted that TCE and PCE were not regulated as pollutants under the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 1251 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., or the Safe Drinking Water Act, 42 U.S.C. 300f et seq., until well after the time period relevant to this law suit. Pet. App. 10a.

2 More recently, in Parrott v. United States, 536 F.3d 629 (2008), the Seventh Circuit stated in dicta that the FTCA's statutory exceptions, including the discretionary function exception, "limit the breadth of the Government's waiver of sovereign immunity," but not "by withdrawing subject-matter jurisdiction from the federal courts." Id. at 634. Ac cordingly, the court stated that the United States has the "burden to as sert these exceptions." Id. at 635; see also Collins v. United States, No. 08-1334, 2009 WL 1162529, at *4 (7th Cir. May 1, 2009) (citing Parrott, stating in dicta that the discretionary function exception is not juris dictional, recognizing that the government raised the discretionary function exception, and holding that the exception applied).

3 Petitioners' reliance (Pet. 9-10) upon Starrett v. United States, 847 F.2d 539, 541-542 (9th Cir. 1988), is misplaced. In Starrett, the court held that the requirement of "secondary treatment" of certain wastes was sufficiently specific to overcome the discretionary function excep tion. But the "secondary treatment" prescription at issue in Starrett mandated particular conduct, whereas the 1957 Manual provision at issue here seeks a particular result and does not prescribe specific con duct. Moreover, the Ninth Circuit decided Starrett prior to this Court's discussion in Berkovitz.

4 Citing Loughlin v. United States, 393 F.3d 155 (D.C. Cir. 2004), petitioners argue (Pet. 18-19) that only munitions disposal decisions im plicate military policies, and the discretionary function exception should not shield the military's disposal of other substances. But Loughlin's reasoning did not turn on the fact that munitions were at issue in that case. See 393 F.3d at 163-164.