United States Court of Appeals
For the First Circuit
No. 05-1889
MARÍA 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 JONES, Commander of the Marine Corps
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk*, Circuit Judges.
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.
November 14, 2006
*
Of the Federal Circuit, sitting by designation.
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
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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 (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
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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
1
Romero-Barceló v. Brown, 478 F. Supp. 646 (D.P.R.
1979), aff’d in part, vacated in part, Romero-Barceló v. Brown, 643
F.2d 835 (1st Cir. 1981), rev’d on other grounds, Weinberger v.
Romero-Barceló, 456 U.S. 305 (1982).
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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
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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.
2
Plaintiffs made several claims in the district court
that they do not raise on appeal, including claims under the
Endangered Species Act, 16 U.S.C. § 1531 et seq., claims relating
to the Navy’s transfer of military exercises from Culebra Island to
Vieques, and claims that the government is directly liable under
RCRA and the Clean Water Act.
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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
3
The Supreme Court’s recent decision in Arbaugh v. Y &
H Corp., 126 S. Ct. 1235, 1245 (2006), confirms that dismissal for
lack of subject matter jurisdiction is appropriate “[i]f the
Legislature clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional.”
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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. Empressa de Viacao Aerea Rio Grandense (“Varig
Airlines”), 467 U.S. 797, 808 (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. 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 (1991) (quoting Berkovitz v. United States, 486 U.S. 531,
536 (1988)); see also Dalehite v. United States, 346 U.S. 15, 34
(1953).
Assuming that the challenged conduct “involves an element
of judgment,” we next consider “whether that judgment is of the
kind that the discretionary function exception was designed to
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shield.” Berkovitz, 486 U.S. at 536; see also Varig Airlines, 467
U.S. at 813. In other words we ask whether “the exercise of
discretion involve[s] (or is [] susceptible to) policy-related
judgments.” Montijo-Reyes, 436 F.3d at 24; see also Irving, 162
F.3d at 162.
The district court held, and the plaintiffs do not
contest, that “the military activities carried out by the Navy on
Vieques over the past several decades have involved discretionary
decision-making of the most fundamental kind,” requiring “balancing
competing concerns of secrecy and safety, national security and
public health.” Thus it is undisputed that the discretionary
function exception generally precludes FTCA claims based on the
Navy’s operation of the AFWTF.
This is not, however, the end of the inquiry. The
plaintiffs point out that the discretionary function exception
generally does not apply if the activity in question violates a
mandatory federal law. Gaubert, 499 U.S. at 324. In such
circumstances the exercise of discretion is precluded. The
plaintiffs argue that the Navy violated mandatory directives
imposed by federal statutes, the Clean Water Act, 33 U.S.C. §§
1251-1357 (2000) (“CWA”), RCRA, and the Noise Control Act, 42
U.S.C. §§ 4901-4918(2000) (“NCA”).
C.
It has long been established under the FTCA that actions
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by a government employee complying with a mandatory policy
directive are protected by the discretionary function exception.
Dalehite, 346 U.S. at 36; Varig Airlines, 467 U.S. at 820. In
Dalehite, the Court held that the discretionary function exception
protected the conduct of government employees who participated in
the production and dissemination of a fertilizer that exploded,
reasoning that the exception must shield the action of subordinates
implementing a regulatory plan because otherwise, each action by a
subordinate could potentially give rise to governmental liability,
and the exception would “fail at the time it would be needed.” 346
U.S. at 36. The Varig Airlines Court similarly shielded the FAA’s
implementation of a spot-check plan and the actions of employees
carrying out the plan, reasoning that the agency had discretion to
implement the plan and that the actions of the employees carrying
it out reflected the agency’s policy choices. 467 U.S. at 819-20.
In Berkovitz v. United States, 486 U.S. 531 (1988), the
Court addressed for the first time the question whether failure to
comply with such a directive made the discretionary function
exception inapplicable. The Court held that the discretionary
function exception did not shield the actions of employees of the
Food and Drug Administration and the National Institutes of Health
who licensed a vaccine in violation of mandatory requirements. The
Court held that this claim “does not challenge a discretionary
function. Rather, the claim charges a failure on the part of the
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agency to perform its clear duty under federal law. When a suit
charges an agency with failing to act in accord with a specific
mandatory directive, the discretionary function exception does not
apply.” Id. at 544.
Thereafter the Supreme Court returned to the issue in
United States v. Gaubert. 499 U.S. 315 (1991). That case involved
a claim by the directors of a thrift institution that the Federal
Home Loan Bank Board, pursuant to the Home Owner’s Loan Act of
1933, 12 U.S.C. §§ 1461-1470, had negligently supervised the
thrift, causing it to incur losses. The Gaubert Court reaffirmed
that when an employee follows a mandatory requirement in a
regulation, and when that regulation was promulgated by an agency
with delegated Congressional authority to implement a statute, the
agency has discretion in deciding how to implement the statute, and
the conduct of the employee who obeys the regulation is protected
by the discretionary function exception. Id. at 323-24. Thus,
when “a regulation mandates particular conduct, and the employee
obeys that direction, the Government will be protected because the
action will be deemed in furtherance of the policies which led to
the promulgation of the regulation.” Id.
However, the Court also concluded that the discretionary
function exception does not shield the conduct of an employee who
violates a mandatory regulation. Id. In that situation, the
employee’s action cannot be deemed in furtherance of the policies
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of the statute that the regulation implements. Nor does his
conduct reflect a permissible exercise of the discretion that
Congress delegated. Thus, “[i]f [a government] employee violates
[a] mandatory regulation, there will be no shelter from liability
because there is no room for choice and the action will be contrary
to policy.” Id. at 324. In the circumstances of Gaubert itself,
the Court concluded that the federal regulators acted in accordance
with the governing regulations enacted pursuant to delegated
authority to implement the Home Owners' Loan Act, and thus the
discretionary function exception precluded the suit. Id. at 334.
Each of the cases invoking the rule of Gaubert has
involved a suit against the United States based on the activities
of federal regulators; for example in Gaubert itself, the
activities of Federal Home Loan Bank Board regulators, Id. at 318-
19, and in Berkovitz, the actions of Food and Drug Administration
and National Institutes of Health regulators. 486 U.S. 533. The
language of both Berkovitz and Gaubert appears to be directed to
mandatory regulations governing the conduct of employees of the
regulatory agency. Thus, in Gaubert, the Court was concerned with
the situation “[w]here Congress has delegated the authority to an
independent agency . . . to implement the general provisions of a
regulatory statute and to issue regulations to that end.” 499 U.S.
at 323. See also Berkovitz, 486 U.S. at 545 (noting that
“application of the discretionary function exception . . . hinges
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on whether the agency officials making that determination
permissibly exercise policy choice”). This is not surprising. The
issue in those cases concerned the exercise of discretion by the
regulators under the statutes conferring their authority, and it
became important to determine whether the regulators were
exercising the discretion conveyed by the regulation under their
organic statute. If they were acting contrary to the regulatory
scheme, they were not exercising appropriate discretion.
Here the issue is quite different. The regulated party
(the Navy) is not exercising or purporting to exercise discretion
under the regulatory statutes. The Navy’s discretion comes from an
entirely different source, namely, its authority to conduct
military operations. Just as the Navy cannot claim to exercise
discretion under the regulatory statutes, its discretion under
military statutes likely cannot be cabined by the dictates of the
regulatory statutes. In other words, we think that the rule of
Gaubert may well be inapplicable to mandatory directives aimed at
a regulated party, where the regulated party is not exercising
discretion under the mandatory statute or regulation. We also
perceive that there is a particularly strong argument for limiting
the rule of Gaubert where the exercise of military authority is
involved, in view of the numerous cases cautioning the courts to
avoid interfering with the exercise of discretionary military
authority. See, e.g., United States v. Shearer, 473 U.S. 52, 57
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(1985) (“civilian court [should not] second-guess military
decisions”). See also United States v. Muniz, 374 U.S. 150, 162
(1963), United States v. Brown, 348 U.S. 110, 112 (1954).
Applying the rule of Gaubert to regulated entities, as
well as to regulatory entities, would create an anomaly. If the
regulators were the defendants, Gaubert would then apply only if
they were acting clearly contrary to the statute or regulation. If
the regulated entities were sued, they would have been bound to
follow not only the plain language of the statute or regulation,
but also the interpretation of the regulatory entity under Chevron,
U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984), and
United States v. Cleveland Baseball Co.. 532 U.S. 200, 219 (2001).
The FTCA would become a medium for enforcing the entire regulatory
scheme, including the discretionary decisions of the regulatory
agency, an eventuality that Congress likely did not contemplate
when it enacted the FTCA.
However, we need not decide the difficult question
whether the rule of Gaubert is inapplicable to regulated parties
for we conclude that the Gaubert rule is inapplicable here for
other reasons.
We turn to the three statutes that plaintiffs claim were
violated here.
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III.
A. The Clean Water Act
Plaintiffs first rely on alleged violations of the Clean
Water Act (“CWA”), 33 U.S.C. § 1251-1387 (2000). The CWA prohibits
discharging pollutants into the ocean without a National Pollutant
Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§
1311(a), 1323(a). The plaintiffs argue that the Navy was required,
under the CWA, to obtain a valid NPDES permit before conducting
ship-to-ship and ship-to-shore live fire exercises, because those
exercises risked discharging pollutants in to the waters around
Vieques. The plaintiffs also argue that the Navy did not have a
valid permit. We conclude that the Navy had a valid NPDES permit,
and thus did not violate any mandatory CWA requirement.
In United States v. Zenón-Encarnación, 387 F.3d 60, 63-64
(1st Cir. 2004), this court addressed the validity of the Navy’s
NPDES permit for the AFWTF. The appellant was convicted of
entering one of the AFWTF firing ranges, which the Navy had
designated a “danger zone” closed to the public. The appellant
argued that the Navy lacked a valid NPDES permit, and thus that it
lacked authority under the pertinent regulations to designate the
area a “danger zone.” Id. at 63. The court held that:
The Navy received a valid NPDES permit in
1984. That permit expired in 1989, and the
Navy applied to the Environmental Protection
Agency (“EPA”) for a new permit. The EPA
deemed the application complete but failed to
act on it. Under the applicable regulation,
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this failure means that the 1984 permit
continued in force despite its expiration.
Id. at 63 (internal quotations omitted). The court affirmed the
district court’s conclusion that the 1984 NPDES permit continued in
effect through April 9, 2002 (the date the defendant was found in
the restricted area). The district court found that the permit
remained in effect until “[t]he Navy . . . formally withdrew its
permit renewal application . . . in a letter dated April 21, 2003.”
United States v. Zenón, 285 F. Supp. 2d 109, 115 (D.P.R. 2003),
vacated on other grounds, Zenón-Encarnación, 387 F.3d at 67.
We see no basis for disagreeing with Zenón’s holding that
the Navy had a valid permit, nor with the district court’s holding
that the permit remained in effect until April, 2003. Although the
plaintiffs are not bound under the doctrines of res judicata or
collateral estoppel, they make no effort to demonstrate error in
the earlier cases’ conclusions. We therefore hold that the Navy’s
actions were in compliance with the statute; the discretionary
function exception applies; and the plaintiffs’ claims were
properly dismissed.4
B. The Resource Conservation and Recovery Act
The plaintiffs next rely on RCRA, 42 U.S.C. § 6901, et
seq. (2000). They argue that the Navy violated a mandatory RCRA
4
Plaintiffs below also raised FTCA claims based on
violations of the CWA requirements other than its permitting
requirement. They do not pursue these claims on appeal.
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requirement by operating the open burning/open detonation facility
at the AFWTF without a valid RCRA permit.
“RCRA is a comprehensive environmental statute that
governs the treatment, storage, and disposal of solid and hazardous
waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996).5
Congress delegated to the EPA primary authority to implement and
enforce the provisions of RCRA. Chicago v. Evt’l Def. Fund, 511
U.S. 328, 331 (1994) (“RCRA . . . empowers EPA to regulate
hazardous wastes from cradle to grave.”). Among other things, RCRA
regulates “hazardous waste treatment, storage and disposal
facilities” (“TSDFs”). 42 U.S.C. § 6924. A RCRA permit from the
EPA is required in order to lawfully operate a TSDF. 42 U.S.C. §
6925(a). It is undisputed that the Navy’s facility on Vieques
qualified as a TSDF under the statute.
The parties agree that the Navy timely initiated the
first step in the permit application process, and in so doing
obtained “interim” permit status that allowed the Navy to operate
the facility lawfully for a time. See 42 U.S.C. §§ 6925(e),
6930(a); 40 C.F.R. § 270.70(a) (2000). The primary dispute is
whether the Navy timely initiated the second stage in the
5
See also H.R. Rep. No. 94-1491, pt. 1 at 3 (1976) (RCRA
was enacted to address “the overriding concern of . . . the effect
on the population and the environment of the disposal of discarded
hazardous wastes–those which by virtue of their composition or
longevity are harmful, toxic or lethal.”).
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permitting process.6 But the plaintiffs also urge that the Navy
violated RCRA in other respects. We need not resolve these complex
questions of RCRA compliance because we conclude that the Gaubert
line of cases is inapplicable to this situation.
As we have noted earlier, where suit under the FTCA is
brought against the regulated entity there is a potential conflict
between enforcement by the agency charged by Congress with
enforcement responsibility and what amounts to indirect enforcement
of the same statutory requirements through the FTCA. We conclude
that at a minimum, it is necessary under such circumstances to
determine whether the imposition of damages liability on the
regulated entity under the FTCA would undermine the policies of the
regulatory statute. Indeed, Gaubert itself recognized the
important role played by the policies of the mandatory statutes.7
Under the FTCA, the Tucker Act and other statutes
6
The question here appears to turn on whether, under the
pertinent regulations, the open burning/open detonation facility
was fairly classified as a hazardous waste “treatment” facility, as
opposed to a “land disposal” or “incinerator” facility. See 40
C.F.R. § 260.10. If the latter, then the second part of the Navy’s
RCRA permit application was untimely, and its interim permit status
was revoked. See 42 U.S.C. § 6925(e)(2); 40 C.F.R. § 270.73(f).
The district court found that the open burning/open detonation
facility was properly classified a “treatment” facility under the
RCRA regulations, and that consequently the Navy timely completed
the second step in the permitting process and retained its interim
permit status until the AFWTF was shut down.
7
499 U.S. at 324 (holding that applicability of the
discretionary function exception turns on whether challenged
conduct “will be deemed in furtherance of the policies which led to
the promulgation of the regulation”).
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providing remedies against the United States, the Supreme Court and
the courts of appeal have repeatedly recognized that the waiver of
sovereign immunity reflected in various statutes must be
interpreted in light of significant policies reflected in other
related federal statutes. Thus, for example, the Feres doctrine
precludes a FTCA remedy for actions by the military when Congress
has created an alternative remedial scheme, because the FTCA
“should be construed to fit . . . into the entire statutory system
of remedies against the Government to make a workable, consistent
and equitable whole.” Feres v. United States, 340 U.S. 135, 139
(1950). The Tucker Act has been held inapplicable where Congress
has provided alternative remedies under other statutes. E.g., Lion
Raisins, Inc., v. United States, 416 F.3d 1356, 1372-73 (Fed. Cir.
2005). Most pertinently, the Back Pay Act (“BPA”), allowing suit
by improperly discharged federal employees for back pay, has been
held inapplicable to employees who were denied a remedy under
another statute--the Civil Service Reform Act (“CSRA”). United
States v. Fausto, 484 U.S. 439 (1988). The Court reasoned that
“[t]he CSRA established a comprehensive system” that
“deliberate[ly] exclu[ded]” the employees who sought to invoke the
BPA, and that allowing those employees to obtain judicial review
under the BPA would undermine the “considered congressional
judgment” in the CSRA to preclude such review. Id. at 448, 455.
We think that this same principle is applicable here as
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well. Imposing liability under the FTCA because of the failure of
a federal employee to comply with a mandatory directive is not
permissible if the imposition of such liability on a regulated
entity would undermine the purposes of the regulatory statute
creating the mandatory directive.
In short, when evaluating plaintiffs’ contentions that
the violation of mandatory requirements implies a waiver of
sovereign immunity under the FTCA, we must refrain from imposing
liability on the government when doing so would subvert a
congressional decision to preclude regulated entity liability in
the statute creating the mandatory directive. This is in keeping
with our obligation to construe such waivers narrowly and to
resolve any ambiguity or uncertainty in favor of immunity. United
States v. Williams, 514 U.S. 527, 531 (1995).8
Here allowing recovery of compensatory damages under the
FTCA for RCRA violations would adversely affect the RCRA statutory
scheme. This is not a situation in which Congress simply left
unaddressed the question of damages liability under the mandatory
statute. Rather, we deal here with a situation in which Congress
affirmatively decided to limit the available remedies and to
preclude compensatory damages. In RCRA, Congress directly
addressed the role of private parties in the enforcement of the
8
See also West v. Gibson, 527 U.S. 212, 222 (1999); Lane
v. Pena, 518 U.S. 187, 192 (1996).
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statute. The RCRA citizen-suit provision allows “any person” to
commence an action to prevent an “imminent and substantial
endangerment to health or the environment.” 42 U.S.C. § 6972(a).
The provision confers jurisdiction on district courts to “restrain”
violations and order persons to “take other such action;” thus it
confers jurisdiction over suits for injunctive relief. Id.;
Meghrig v. KFC Western, Inc., 516 U.S. 479, 484-85 (1996). The
district courts may also impose civil penalties for RCRA
violations. 42 U.S.C. §§ 6972(a), 6928(a).
In Meghrig the Supreme Court addressed the availability
of compensatory damages. There plaintiff property owners sued
former owners of the property under RCRA to recover the costs of
cleaning up a petroleum contamination. Meghrig, 516 U.S. at 481-82
(1996). The Court noted that RCRA’s “elaborate [enforcement]
scheme” is directed solely toward correcting existing or future
harms by restraining them, and that RCRA must be read to preclude
actions for damages. Meghrig, 516 U.S. at 484-85 (1996). The
Court found that RCRA makes clear that any private action is
precluded if the “EPA or the State has commenced, and is diligently
prosecuting, a separate enforcement action.” Id. at 486. If the
private actions allowed under RCRA included actions for
compensatory damages, the Court reasoned, those parties with
substantial grievances who were most deserving of a damages award--
the ones suing over violations grave enough to attract the
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attention of State or federal regulators--would be precluded from
recovery, whereas parties with grievances that were not substantial
enough to warrant State or EPA enforcement, would be able to
recover in damages. Id. at 486-87.9 “Therefore, if RCRA were
designed to compensate private parties for their past cleanup
efforts, it would be a wholly irrational mechanism for doing so.”
Id. at 486.10
Furthermore, Congress has manifested its desire to limit
RCRA damage suits against the government in particular. In 1992,
the Supreme Court held that RCRA’s remedial scheme did not waive
the government’s immunity from punitive fines imposed by state law.
U.S. Dept. of Energy v. Ohio, 503 U.S. 607, 627-28 (1992). Later
that year, Congress amended the RCRA citizen-suit provision to
expressly waive immunity over such fines, waiving sovereign
immunity for “all civil and administrative penalties and fines,
9
In an analogous situation, the Supreme Court reasoned
that the CSRA could not logically be read to deny judicial review
to employees eligible for veterans’ preference (“preferential
employees”), but at the same time grant nonpreferential employees
access to such review, because such a reading would undermine the
preference system, result in an “inverted preference,” and favor
“random categories of employees.” Consequently, the Court held that
the CSRA precluded judicial review for nonpreferential employees.
Fausto, 484 U.S. at 449-51.
10
The Court also held that the RCRA savings clause, 42
U.S.C. § 6972(f), which allows persons to “seek . . . relief” that
they may have “under any statute or common law,” merely preserves
causes of action under state law, and does not authorize a new
substantive RCRA cause of action for damages. Meghrig, 516 U.S. at
487.
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regardless of whether such penalties or fines are punitive or
coercive in nature or are imposed for isolated, intermittent, or
continuing violations.” Pub. L. 102-386, 106 Stat. 1505 (October
6, 1992). However, Congress made it clear that, in permitting the
recovery of civil fines for RCRA violations, it did “not intend .
. . in any manner to authorize civil tort actions against the
federal government for damages.” H. Rep. No. 102-111, at 15
(1991), as reprinted in 1992 U.S.C.C.A.N. 1301.
If an action based on the FTCA were allowed here, the
district court would effectively be enforcing RCRA under the guise
of a FTCA claim. We think that allowing the recovery of damages in
a FTCA suit, based on the violation of a mandatory permitting
requirement under RCRA, would undermine the intent of Congress to
preclude compensatory damages awards for RCRA violations.
There is, moreover, reason to be concerned that the FTCA
suit here was specifically designed to achieve an end run around
the strict limitations placed by Congress on private damages
actions under RCRA. The complaint here originally alleged
violations of RCRA itself.11 While these direct RCRA claims were
eventually dismissed, the plaintiffs nonetheless continued to urge
that the state-law claim enforceable under the FTCA should
11
In the complaint, plaintiffs stated that “[plaintiffs]
are citizens covered under [RCRA],” and “24 U.S.C. § 6972(a)(1)(A)
of this act [the RCRA citizen-suit provision] allows for civil
actions for violation of any requirement of RCRA,” and “Plaintiffs
allege that the defendants have violated [RCRA].”
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incorporate the RCRA standard of liability.12 They now seek to
overcome the discretionary function exception by alleging that the
Navy violated RCRA. From a policy standpoint, this is very little
different from pursuing a federal damages action in the teeth of
Congress’s refusal to create a private cause of action. Although
RCRA does not preempt remedies under state law, we are at the same
time disinclined to construe Congress’s waiver of immunity under
the FTCA to allow a suit Congress so clearly disfavored.
We conclude that a damage action under the FTCA is not
available against the Navy, based on a RCRA violation.
C. The Noise Control Act
The plaintiffs’ final argument is that the discretionary
function exception is inapplicable because the Navy’s live-fire
exercises violated mandatory requirements imposed by the Noise
Control Act (“NCA”), 42 U.S.C. § 4901-4918 (2000). Section 4 of
the NCA provides, in pertinent part, that
Each department, agency, or instrumentality
of the executive, legislative, and judicial
branches of the federal government –
(1) having jurisdiction over any property or
facility, or
12
For example, in defending against the government’s
motion to dismiss, the plaintiffs state that “Puerto Rico tort law
recognizes that under certain circumstances the violation of a
statute or regulation can itself constitute negligence,” that “the
language of the FTCA does not mandate that state law be applied
when the state courts themselves would be required to refer to and
apply federal law to determine . . . liability,” and that the
district court should not “preclude Plaintiff from establishing
Defendants’ violations under RCRA.”
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(2) engaged in any activity resulting, or
which may result, in the emission of noise,
shall comply with Federal, State, interstate,
and local requirements respecting control and
abatement of environmental noise to the same
extent that any person is subject to such
requirements.
42 U.S.C. § 4903(b) (2000).
The plaintiffs argue that section 4 of the NCA requires
the Navy to comply with the Puerto Rico Noise Prohibition Act,
which imposes a mandatory limitation on sound emissions. The
Puerto Rico Noise Prohibition Act of 2001, 24 P.R. Stat. § 3635(2),
provides that “[n]o person may cause or permit the emission of a
sound either in air or in water which . . . propagates into the
waters of Puerto Rico . . . a peak sound pressure level equal to or
in excess of 190 dB re 1-m-Pa.” The Puerto Rico legislature
appears to have enacted this provision to deal specifically with
noise emissions from the Navy’s live-fire exercises on Vieques
Island. See 24 P.R. Stat. § 3632 (“Findings”).
The plaintiffs contend that the NCA coupled with the
Puerto Rico statute constitute a mandatory directive governing the
Navy’s activities at the AFWTF, rendering the discretionary
function exception inapplicable. We reject this contention because
the NCA does not make the Puerto Rico statute applicable to the
Navy. In Romero-Barceló, 643 F.2d at 854-55, this court held that
section 4 of the NCA was only intended to subject the federal
government to state and local “requirements” similar to “the
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federal requirements enforceable under § 12 [of the NCA] . . . .”
Section 12 of the NCA, codified at 42 U.S.C. § 4911 (2000),
provides for citizen suits to enforce “noise control requirements.”
Section 12 defines “noise control requirement” by reference to:
several provisions of the [NCA] which provide
for (a) standards, rules or regulations
controlling the noise emissions of motor
carriers, railroads and aircraft, [42 U.S.C.]
§§ 4916, 4917; 49 U.S.C. § 1431, (b)
labelling regulations, 42 U.S.C. § 4907, and
(c) noise emissions standards applicable to
specified domestic and imported products, id.
§§ 4905, 4908.
Romero-Barceló, 643 F.2d 855.
The noise that plaintiffs complain of here is generated
by military weapons and ordinance. The federal requirements
applicable to noise emissions by products, however, expressly
exclude “any military weapons or equipment which are designed for
combat use.” 42 U.S.C. § 4902(3)(B)(i). Pursuant to our
interpretation of section 4 of the NCA in Romero-Barceló, we
conclude that the statute does not make the Puerto Rico Noise
Prohibition Act applicable to the Navy’s use of “military weapons
or equipment,” since the statute makes clear that no federal
requirements are applicable to such activities. The NCA did not
impose mandatory standards on the Navy’s live-fire exercises.
Accordingly, we hold that the NCA does not render the
discretionary function exception inapplicable.
IV.
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In summary, we conclude that none of the plaintiffs’
statutory arguments renders the discretionary function exception
inapplicable. We conclude that the district court correctly
dismissed the suits for lack of subject-matter jurisdiction. In
light of our jurisdictional holding, we have no occasion to address
the plaintiffs’ statute-of-limitations or causation arguments.
Because we hold that subject-matter jurisdiction was lacking as a
matter of law, additional jurisdictional discovery would not have
benefitted the plaintiffs, and the denial of such discovery was not
error.
The decision of the district court is
Affirmed.
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