Sanchez Ex Rel. DR-S. v. United States

United States Court of Appeals
For the First Circuit

No. 10-1648

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

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-Vélez, United States
Attorney, and Nelson Jose Pérez-Sosa, Assistant United States
Attorney, were on brief, for appellee.
February 14, 2012
 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

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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.

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.

1
It was unnecessary to address the discretionary function
exception in that case for other reasons. Abreu v. United States,
468 F.3d 20, 28 (1st Cir. 2006). Given that Congress made clear
its intent to prohibit compensatory damages against the United
States for RCRA violations, it was irrelevant whether the Navy had

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 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.

§§ 1251-1389; (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 (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

discretion to violate the RCRA directives. Id. at 29-31.

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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 waste. In their

complaint, the plaintiffs asserted eight state-law causes of action

against the United States3 under the FTCA, said to be: negligence,

2
The plaintiffs filed their original complaint in the U.S.
District Court for the District of Columbia. In March 2009, the
case was transferred for lack of venue to the District of Puerto
Rico.
3
In their first amended complaint, the plaintiffs listed
various federal agencies and officials as defendants, but they have
voluntarily dismissed all claims against parties other than the
United States.

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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 injury4 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,

4
The complaint also invoked purported requirements under the
Federal Facilities Compliance Act, 42 U.S.C. § 6961; the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. § 9601 et seq.; 32 C.F.R. § 700.832; 10
U.S.C. § 2705; and a provision of the Navy Environmental and
Natural Resources Program Manual, OPNAVINST 5090.1B CH-2 § 20-5.1.
The district court held that none of these provisions rendered the
alleged conduct non-discretionary, and this holding has not been
appealed.

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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. 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, 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. 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.

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

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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

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 violations exists

than is evidenced in the DMRs" given the structure of reporting

requirements. The plaintiffs have also identified a September 15,

1999, letter from the EPA notifying the Navy that the AFWTF had

failed to comply with the NPDES and that therefore it had violated

the CWA. An attachment to the September 1999 letter listed

violations determined from the Navy's DMRs and from an EPA site

inspection.

As to the second theory and the alleged permits

concerning depleted uranium, the plaintiffs rely on an April 1,

1999, letter to the Navy from the Nuclear Regulatory Commission and

an accompanying report. The letter describes a particular event on

February 19, 1999, in which two aircraft fired at least 263

depleted uranium 25 mm rounds on Vieques. It states, "The firing

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of [depleted uranium] ammunition on Navy or Marine Corps firing

ranges is a violation of the Navy's Master Material License No. 45-

23645-01NA, and specifically, the Naval Radioactive Material Permit

No. 13-00164-L1NP pertaining to depleted uranium." The letter did

not, however, include the text of these permits, nor have the

plaintiffs otherwise done so. The report accompanying the letter

explained only that this type of ammunition is to be used strictly

during combat, and that the pilots of the two aircraft did not

follow required Navy procedures that they check a manual that

classifies types of ammunition.

According to the report, "[v]isual searches and

radiological surveys indicated that only a limited area of the

North Convoy site was actually affected." The report stated that

fifty-seven of the rounds had been recovered, "most of them

completely intact," and that "[o]nly a few holes exhibited residual

contamination after the [depleted uranium] penetrator was removed."

It also stated that contaminated soil had been collected and

packaged for disposal.

The plaintiffs allege that as of 2001 only 116 of the 263

rounds had been found and removed. They also cite an issue of the

Vieques Issue Brief, a non-profit publication published by the

Fellowship of Reconciliation, which refers to an unnamed study

"conducted in the impact area" that found "significantly higher

than background radiation levels about a mile from where the

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[depleted uranium] was reportedly fired." The plaintiffs allege

that this suggests depleted uranium has been used "on several other

occasions on Vieques."

As to the third theory and the unnamed internal

regulations, policies, directives, and orders, little further

explanation is needed. The plaintiffs do not make any specific

claims as to the content of these purported internal requirements.

They argue only that the AFWTF range manual requires documentation

of both compliance with and violations of the range's environmental

procedures, and assert that this is evidence of the existence of

mandatory internal requirements. The range manual contains general

rules concerning permissible conduct on the island, and includes

prohibitions on both intentionally discharging live ordnance into

the water and discarding refuse or bilge from naval vessels. The

plaintiffs argue, vaguely, that discovery of the internal reporting

concerning these requirements would demonstrate violations of

mandatory environmental policies.

As to the fourth theory, the plaintiffs argue that the

Navy undertook a duty to warn residents of Vieques about heightened

concentrations of heavy metals on the island when it allegedly

allowed fishermen and cattle herders into contaminated areas. The

plaintiffs argue that the Navy's failure to comply with this

alleged duty was not susceptible to policy-related judgments and

thus is a basis for FTCA liability. In support of this theory, the

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plaintiffs rely on (1) a provision in an AFWTF range manual stating

that a training range would be closed on Tuesdays and Fridays from

7 A.M. to 9 A.M. "to permit local fishermen to retrieve fishing

traps from adjacent waters," and (2) an academic article that

asserts, without citation, that "the US Navy allowed local farmers

to graze cows in the eastern part of Vieques including at the

AFWTF," A. Massol-Deyá, et al., Trace Elements Analysis in Forage

Samples from a US Navy Bombing Range (Vieques, Puerto Rico), 2

Int'l J. Envtl. Res. & Pub. Health 263, 264 (2005). The plaintiffs

assert that the Navy's alleged failure to issue a warning caused

them to ingest contaminated food and travel in contaminated areas.

The district court rejected the arguments the plaintiffs

present on appeal. It held that the plaintiffs (1) cannot rely on

the Navy's NPDES permit under the reasoning of Abreu because

Congress clearly intended to preclude compensatory damages under

the CWA, Sanchez, 707 F. Supp. 2d at 232-33; (2) failed to specify

how the alleged directives concerning depleted uranium bullets were

mandatory, id. at 223; (3) failed to adequately plead their

assertions concerning the unnamed internal requirements under Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.

Iqbal, 129 S. Ct. 1937 (2009), Sanchez, 707 F. Supp. 2d at 233; and

(4) failed to show that the Navy's purported failure to warn was

not discretionary and not susceptible to policy-related judgments

and therefore was excluded from FTCA liability, id. at 230.

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 II.

The district court's ultimate rulings were ones of law,

which we review de novo. Sony BMG Music Entm't v. Tenenbaum, 660

F.3d 487, 496 (1st Cir. 2011).

On this Rule 12(b)(1) motion, we must "credit the

plaintiff's well-pled factual allegations and draw all reasonable

inferences in the plaintiff's favor." Merlonghi v. United States,

620 F.3d 50, 54 (1st Cir. 2010). To the extent that the plaintiffs

challenge the district court's discovery rulings, which they raise

obliquely in reference to their argument concerning the firing of

depleted uranium bullets, we review a denial of discovery for abuse

of discretion. Braga v. Hodgson, 605 F.3d 58, 59 (1st Cir. 2010).

The FTCA's waiver of sovereign immunity from suit is a

"limited waiver." Molzof v. United States, 502 U.S. 301, 305

(1992); Abreu, 468 F.3d at 23. One exception to that waiver of

immunity bars lawsuits "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). If this discretionary function exception applies, the

FTCA's jurisdictional grant under 28 U.S.C. § 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."

Abreu, 468 F.3d at 25 (alteration in original) (quoting Santoni v.

-13-
Potter, 369 F.3d 594, 602 (1st Cir. 2004)) (internal quotation

marks omitted).

Under United States v. Gaubert, 499 U.S. 315 (1991), the

discretionary function exception applies if the conduct underlying

an FTCA claim both (1) "involves an element of judgment or choice,"

Limone v. United States, 579 F.3d 79, 101 (1st Cir. 2009) (quoting

Berkovitz v. United States, 486 U.S. 531, 536 (1988)) (internal

quotation marks omitted), and (2) "was susceptible to policy-

related analysis," id. Conduct does not involve an element of

judgment or choice if a "'federal statute, regulation, 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.'" Gaubert, 499 U.S. at 322 (quoting Berkovitz,

486 U.S. at 536). Conduct is susceptible to policy analysis if

"some plausible policy justification could have undergirded the

challenged conduct;" it is not relevant whether the conduct was

"the end product of a policy-driven analysis." Shansky v. United

States, 164 F.3d 688, 692 (1st Cir. 1999). This discretionary

function bar to suit applies to activities by both civilian and

military agencies covered by the FTCA.

As the Supreme Court has held, 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

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private individuals." United States v. S.A. Empresa de Viacao

Aerea Dio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)

(quoted in Abreu, 468 F.3d at 25). Through this exception to the

FTCA's waiver of immunity, Congress sought 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 (quoted in Abreu, 468

F.3d at 25). Accordingly, a complaint cannot survive a motion to

dismiss unless it alleges facts "which would support a finding that

the challenged actions are not the kind of conduct that can be said

to be grounded in the policy of the regulatory regime." Gaubert,

499 U.S. at 324-25.

The Supreme Court has held that the discretionary

function exception does not bar suit when an employee violates a

mandatory regulation. See id. at 324. The Court has applied this

rule in private party suits against defendant federal regulators,

but not in suits against defendant federal regulated parties,

Abreu, 468 F.3d at 27, and it has not made a distinction based on

whether the regulated party is civilian or military. The Navy here

fits into the defendant federal regulated party category. The Navy

does not purport to exercise discretion under the regulatory

regimes plaintiffs invoke in this litigation; rather, its

discretion "comes from an entirely different source, namely, its

authority to conduct military operations." Id. In light of this,

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in Abreu we concluded that "the rule in 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." Id. We also concluded 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." Id. at 27-28

(citing United States v. Shearer, 473 U.S. 52, 57 (1985)).

Our decision in Abreu did not reach the question of

whether the Gaubert rule applies to regulated entities generally,

as we found that the rule was inapplicable to the claims at issue

in that suit for other reasons. 468 F.3d at 28. We need not

address this more sweeping question here either, as it is clear

that each of the plaintiffs' four arguments fail for other reasons.

A. The Claim Based on the CWA and the NPDES Permit

When evaluating "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." Id. at 30. The Supreme Court in Dolan v. United

States Postal Service, 546 U.S. 481 (2006), stated that "the

general rule that 'a waiver of the Government's sovereign immunity

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will be strictly construed, in terms of its scope, in favor of the

sovereign,'" did not apply in a case interpreting an exception to

the FTCA. Id. at 491 (quoting Lane v. Peña, 518 U.S. 187, 192

(1996)). "[T]he proper objective of a court attempting to construe

one of the subsections of 28 U.S.C. § 2680 is to identify those

circumstances which are within the words and reason of the

exception -- no less and no more." Id. at 492 (quoting Kosak v.

United States, 465 U.S. 848, 853 n.9 (1984)) (internal quotation

marks omitted). In Abreu, we held that the unavailability of

damages under the RCRA demonstrated that "allowing recovery of

compensatory damages under the FTCA for RCRA violations would

adversely affect the RCRA statutory scheme."5 468 F.3d at 31.

The RCRA, we held, did not present "a situation in which

Congress simply left unaddressed the question of damages liability

under the mandatory statute." Id. The statute's citizen-suit

provision confers jurisdiction on district courts to "restrain"

violations and order persons in violation of permits, standards,

regulations, conditions, requirements, prohibitions, or orders

effective under the statute to "take such other action as may be

necessary." 42 U.S.C. § 6972(a); see also Abreu, 468 F.3d at 31.

5
Abreu also involved a claim that the Navy was subject to an
FTCA suit because it had violated the CWA by not having a valid
NPDES permit. 468 F.3d at 28-29. Citing United States v. Zenón-
Encarnación, 387 F.3d 60, 63-64 (1st Cir. 2004), Abreu rejected
further consideration of the theory because it was clear the Navy
did have a valid permit. 468 F.3d at 28-29.

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We stated that although this provision "confers jurisdiction over

suits for injunctive relief," Abreu, 468 F.3d at 31, the Supreme

Court had recognized limits on this grant of jurisdiction to

compensatory damages, id. (citing Meghrig v. KFC W., Inc., 516 U.S.

479, 484-85 (1996)), and it was clear that Congress did not intend

that the RCRA "authorize civil tort actions against the federal

government for damages," id. at 32 (quoting H. Rep. No. 102-111, at

15 (1991), as reprinted in 1992 U.S.C.C.A.N. 1301) (internal

quotation mark omitted).

It is clear that Congress did not intend that the CWA

authorize civil tort actions against the federal government for

damages. The plaintiffs' theory that they may sue under the FTCA

for alleged CWA violations is expressly barred by the intent of

Congress. In Meghrig, the Supreme Court relied on its decision in

Middlesex County Sewerage Authority v. National Sea Clammers Ass'n,

453 U.S. 1 (1981), for the proposition that when "Congress has

provided 'elaborate enforcement provisions' for remedying the

violation of a federal statute . . . 'it cannot be assumed that

Congress intended to authorize by implication additional judicial

remedies for private citizens suing under' the statute." Meghrig,

516 U.S. at 487-88 (quoting Sea Clammers, 453 U.S. at 14). The

decision in Sea Clammers addressed, inter alia, the availability of

compensatory damages under 33 U.S.C. § 1365(a), the citizen-suit

provision in the CWA. 453 U.S. at 14. That provision states that

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the district courts have jurisdiction "to enforce . . . an effluent

standard or limitation, or such an order, or to order the

Administrator to perform such act or duty" and apply "civil

penalties" allowed in a separate provision. 33 U.S.C. § 1365(a).

In Sea Clammers, the Supreme Court held that both the

structure and legislative history of the CWA dictate that "Congress

intended that private remedies in addition to those expressly

provided [in the CWA] should not be implied." 453 U.S. at 18. It

reasoned that "[w]here, as here, Congress has made clear that

implied private actions are not contemplated, the courts are not

authorized to ignore this legislative judgment." Id. The Court

emphasized that the Senate Report for the Act "placed particular

emphasis on the limited nature of the citizen suits being

authorized." Id. at 18 n.27 (citing S. Rep. No. 92-414, at 81

(1971)). It also emphasized that "the citizen-suit provision of

the [CWA] was expressly modeled on the parallel provision of the

Clean Air Act," and that the "legislative history of the latter Act

contains explicit indications that private enforcement suits were

intended to be limited to the injunctive relief expressly provided

for." Id.

Sea Clammers does not only demand the conclusion that

Congress intended to foreclose the availability of compensatory

damages under the CWA. The decision also supports the conclusion,

required by Abreu, that this clear congressional intent is relevant

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in determining the availability of an action for damages under the

FTCA. See Abreu, 468 F.3d at 30. In Sea Clammers, the Court held

that "[w]hen the remedial devices provided in a particular Act are

sufficiently comprehensive, they may suffice to demonstrate

congressional intent to preclude the remedy of suits under [42

U.S.C.] § 1983." Sea Clammers, 453 U.S. at 20. "It is hard to

believe," the Court stated, "that Congress intended to preserve the

§ 1983 right of action when it created so many specific statutory

remedies," including the citizen-suit provision in the CWA, 33

U.S.C. § 1365(a), and a parallel provision in the Marine

Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1415(g).

Sea Clammers, 453 U.S. at 20.

As in Abreu, "allowing the recovery of damages in a FTCA

suit, based on the violation of a mandatory permitting requirement"

under a federal statute that precludes compensatory damages "would

undermine the intent of Congress." Abreu, 468 F.3d at 32. For the

reasons already articulated in Abreu, moreover, "the waiver of

sovereign immunity reflected in various statutes must be

interpreted in light of significant policies reflected in other

related federal statutes." Id. at 30. Sea Clammers makes clear

that the decision not to permit damages under the CWA is a

significant policy of that statute, and a policy significant enough

to demand the conclusion that Congress intended the CWA to

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foreclose the availability of damages available before the statute

was enacted.6 Sea Clammers, 453 U.S. at 20-21.

The plaintiffs seek to evade this conclusion by arguing

that our Abreu decision was inconsistent with previously decided

Supreme Court precedent and with decisions of other courts. That

is not so. With respect to the Supreme Court precedent, they argue

that Abreu is inconsistent with Gaubert, as well as general

statements by the Supreme Court that the FTCA's exceptions should

not be construed in an "unduly generous" fashion, see Kosak, 465

U.S. at 853 n.9; see also Block v. Neal, 460 U.S. 289, 298 (1983).

With respect to the decisions from beyond this circuit, the

plaintiffs invoke a pair of district court decisions that postdate

Abreu. See In re Katrina Canal Breaches Consol. Litig., 647 F.

Supp. 2d 644 (E.D. La. 2009); Adams v. United States, No. 03-0049,

2006 WL 3314571 (D. Idaho Nov. 14, 2006). They argue that these

decisions demand that we confine Abreu to its facts and allow their

present FTCA claim to proceed. We disagree.

A panel of this court is ordinarily "constrained by prior

panel decisions directly (or even closely) on point." United

States v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005). A panel is not

so bound when a prior panel decision has been undermined by (1)

6
Whether or not a presidential exception can be made to
compliance with the CWA does not undermine either the congressional
determination that damages are unavailable under the CWA or that
suit may not be maintained under the FTCA absent compliance with
the conditions specified in that Act.

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controlling authority that postdates the decision, like a Supreme

Court opinion, en banc decision of the circuit, or statutory

overruling, or (2) non-controlling authority that postdates the

decision that may offer "a compelling reason for believing that the

former panel, in light of new developments, would change its

collective mind." Id. The second exception, we have stated,

"fairly may be described as hen's-teeth rare." Id.

The plaintiffs have hardly advanced an argument under the

second of these exceptions, and they have advanced no argument

under the first. The Supreme Court decisions do not postdate

Abreu. Indeed, the Abreu panel carefully considered how the

Supreme Court's decision in Gaubert informed its analysis and how

other Supreme Court precedent informed the breadth of exceptions to

FTCA liability. The two district court opinions from beyond this

circuit do not suffice to meet the exacting standard of the second

exception.7

B. The Claim Concerning Depleted Uranium Bullets

A court inquiring into whether an FTCA claim falls within

the discretionary function exception must first "identify the

7
The plaintiffs could have filed timely claims under the CWA
for alleged violations of that Act. They could not have recovered
damages, a limitation this suit attempts to bypass. This suit also
attempts to bypass the administrative procedures under the Act and
the creation of an administrative record. There were other
mechanisms available to secure compliance with the CWA. We reject
as untrue and unwarranted hyperbole the argument of amicus that
dismissal of this case "condones" any violations by the Navy.

-22-
conduct that allegedly caused the harm." Muniz-Rivera v. United

States, 326 F.3d 8, 15 (1st Cir. 2003); see also Irving v. United

States, 162 F.3d 154, 162 (1st Cir. 1998) (en banc). This inquiry

is a factual one. When facts relevant to a jurisdictional question

are dispositive of both that jurisdictional question and portions

of the merits, a Rule 12(b)(1) motion should be granted "only if

the material jurisdictional facts are not in dispute and the moving

party is entitled to prevail as a matter of law." Torres-Negrón v.

J & N Records, LLC, 504 F.3d 151, 163 (2007) (quoting Trentacosta

v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th

Cir. 1987)) (internal quotation marks omitted).

The parties largely agree on the facts concerning the

firing of 263 uranium bullets described in the Navy's April 1999

letter to the Nuclear Regulatory Commission and its accompanying

report. They diverge, however, on whether additional incidents

involving the firing of uranium bullets occurred on Vieques, and on

whether the firing of uranium bullets caused the injuries alleged

by the plaintiffs. The plaintiffs argue that their allegations are

sufficient to raise disputed material facts. To do so, they must

"identify specific facts derived from pleadings, depositions,

answers to interrogatories, admissions and affidavits." Magee v.

United States, 121 F.3d 1, 2 (1st Cir. 1997). As we have held,

"[i]t is a long standing principle of this Circuit that bald

assertions and unsupportable conclusions are not enough to create

-23-
a genuine issue of material fact." Rojas-Ithier v. Sociedad

Espanola de Auxilio Mutuo y Beneficiencia de P.R., 394 F.3d 40, 44

(1st Cir. 2005).

The plaintiffs fall short of this standard for several

reasons. They rely on one unnamed study for the proposition that

depleted uranium bullets caused their injuries. In the portion of

their complaint alleging the harm, they made no reference to

uranium or radioactive materials. Instead, they referred to

concentrations of certain heavy metals. The complaint did

reference uranium in a brief description of the unexploded ordnance

on the island and in a brief account of the alleged incident

involving the 263 rounds, but these references have not been

supported. These allegations are also not on par with the

plaintiffs' other allegations concerning the breadth of the Navy's

discretion. The complaint only cursorily mentioned the incident

involving depleted uranium bullets as evidence of a larger pattern

of pollution; it focused on allegations of causation concerning

pollutants that the plaintiffs do not address on appeal.

Even if the plaintiffs had raised a material fact that

the Navy's firing of depleted uranium bullets caused the injuries

they allege (as they have not), they have failed to adequately

allege that the challenged conduct was non-discretionary, assuming

Gaubert would apply here. Under Gaubert, conduct does not involve

an element of judgment or choice if a "federal statute, regulation,

-24-
or policy specifically prescribes a course of action for an

employee to follow." Gaubert, 499 U.S. at 322 (emphasis added)

(quoting Berkovitz, 486 U.S. at 536) (internal quotation marks

omitted). Without this specificity requirement, we have held, "the

discretionary function exception would be a dead letter." Shansky,

164 F.3d at 691.

This court has repeatedly rejected arguments that conduct

was non-discretionary under Gaubert when FTCA plaintiffs have

identified only vague, permissive, or unidentified requirements for

government conduct. See, e.g., Muniz-Rivera, 326 F.3d at 16;

Shansky, 164 F.3d at 691-92; Irving, 162 F.3d at 163-66. It is not

sufficient for a plaintiff to identify a statute, regulation, or

policy that contains mandatory directives; directives must be

"directly applicable" to the challenged conduct. Muniz-Rivera, 326

F.3d at 16; see also Irving, 162 F.3d at 163 (holding that because

regulations did not mandate "a particular modus operandi" for

government employees or "otherwise materially restrict [their]

flexibility," they did not render the government's conduct non-

discretionary). Nor may a plaintiff rely on an "unsubstantiated

recollection of an unidentified policy statement;" "testimony that

purports to describe written policies and regulations is no

substitute for the original text." Shansky, 164 F.3d at 692.

The plaintiffs here contend that they have identified

policies that specifically eliminate the Navy's discretion with

-25-
respect to the firing of depleted uranium bullets. They have not,

however, introduced the language of these permits or situated them

within a broader regulatory scheme. The Navy letter and

accompanying report plaintiffs rely on is surely more than an

"unsubstantiated recollection of an unidentified policy statement,"

see id., but the content of these purported requirements remains

unclear. The letter only states that there has been a violation of

the permit requirements; it does not identify the content of those

requirements. The only concrete requirements referenced in the

report pertain to internal Navy procedure concerning ammunition

classifications, which is not connected in any way to either of the

permits.

As we held in Irving, moreover, the Gaubert analysis

requires attention to how a particular agency announces policy.

Irving, 162 F.3d at 165. An agency may promulgate regulations on

some topics but not others, it may rely on internal guidelines

instead of published regulations, it may announce policy through

rulemaking and adjudication, and so on. See id. These practices

inform whether an agency statement constitutes a mandatory policy

statement for purposes of the discretionary function exception; in

Irving, for example, we could "well imagine that resort to informal

indicia may be justified either when an agency's legislative rules

define the conduct of some employees, but not others . . . or when

legislative rules create ambiguity." Id. Here, the plaintiffs

-26-
have failed to show that the purported permits, even if they limit

the firing of depleted uranium bullets, are mandatory in the

relevant sense.

Our Abreu decision gives a further, related reason to

reject the argument that this FTCA claim should go forward on the

ground that the Navy's conduct was non-discretionary. In Abreu, we

recognized that congressional intent may foreclose a claim for

damages against the United States premised on violations of federal

law. Abreu, 468 F.3d at 29-32. Because the plaintiffs have

neither introduced the text of the permits upon which they rely nor

identified the statutory context governing the alleged permits,

they have not come close to establishing that Congress intended

that damages be available or unavailable for violations of the two

alleged permits. In light of the many cases cautioning against

interference with discretionary military authority, moreover, this

is a particularly significant omission. See id. at 28.

The plaintiffs contend that they cannot produce the text

of the two permits because the district court erroneously denied

their motion for jurisdictional discovery. Even were the claim not

waived,8 we would reject it. A district court has discretion to

8
The plaintiffs cite no case law in asserting this claim.
They argue, in a single paragraph of their brief, that the district
court put them in an "impossible position" by requiring that they
show the two permits contained mandatory language and yet
disallowing jurisdictional discovery. Claims presented in a
perfunctory manner are deemed waived. Cortés-Rivera v. Dep't of
Corr. & Rehab., 626 F.3d 21, 26 (1st Cir. 2010).

-27-
defer pre-trial discovery pending resolution of a jurisdictional

question when "the record indicates that discovery is unnecessary

(or, at least, is unlikely to be useful) in regard to establishing

the essential jurisdictional facts." Dynamic Image Techs., Inc. v.

United States, 221 F.3d 34, 38 (1st Cir. 2000). The plaintiffs'

discovery request sought a broad range of documents, many of which

had no apparent relationship to jurisdictional questions. The

request did not mention the permits at issue, and only referenced

depleted uranium in a pair of sweeping requests. The district

court was well within its discretion in refusing to allow a

"fishing expedition" by granting the plaintiffs' "inherently

speculative" discovery request. Sanchez, 707 F. Supp. 2d at 231.

C. The Claims Based on Unnamed Internal Requirements

The same basic reasoning applies to the plaintiffs'

argument that unnamed internal requirements establish that the

Navy's conduct was non-discretionary. The plaintiffs argue that

while they have not identified any specific regulations, policies,

directives, or orders, their allegations are sufficient to support

"the reasonable inference" that such requirements exist for

purposes of the pleading standard outlined in Iqbal, 129 S. Ct.

1937. But the plaintiffs' allegations say nothing of the specific

content of the alleged internal directives, what these alleged

directives require, or how the alleged requirements relate to the

challenged conduct.

-28-
D. Claim of Alleged Failure to Warn

As in Abreu, the plaintiffs here cannot 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."

Abreu, 468 F.3d at 26 (internal quotation marks omitted). The

plaintiffs nonetheless allege that the Navy allowed them to enter,

graze cattle, and fish in polluted areas of Vieques without

providing further warning about pollution levels, and that this

alleged decision was not susceptible to policy analysis. The

plaintiffs' argument does not raise the question of whether the

alleged emitting of pollution itself was susceptible to policy-

related considerations, only whether there was a duty to warn that

was not susceptible to policy-related judgments. The source of

this alleged non-discretionary duty to warn suffers from vagueness

and indeterminacy9 and so, as explained earlier, fails to meet the

9
Before the district court, the plaintiffs made a related
argument that 10 U.S.C. § 2705 imposes a duty on the Secretary of
Defense to report certain environmental degradation to the EPA and
authorities in Vieques. The plaintiffs do not rely on this
provision on appeal and so have waived any argument.
By its clear terms, the statute also reinforces that the
Secretary has discretion. It states that the Secretary "shall take
such actions as necessary" as to disclosure. Id. § 2705(a)
(emphasis added). Further, the Secretary establishes review
committees only "[w]henever possible and practical." Id. § 2705(c)
(emphasis added). The Secretary "may" seek technical assistance.
Id. § 2705(e)(1) (emphasis added).

-29-
Gaubert requirements. In addition, the theory of liability has

other flaws.

In two recent cases, this circuit rejected analogous

arguments that safety concerns dictated a specific course of

conduct that could not be subject to policy analysis. Shansky, 164

F.3d at 693 (rejecting the argument that "when safety becomes an

issue, all else must yield"); Irving, 162 F.3d at 168 (holding that

the purpose of OSHA is "to provide for a satisfactory standard of

safety, not to guarantee absolute safety"); see also Shuman v.

United States, 765 F.2d 283 (1st Cir. 1985) (Navy protected from

liability under the discretionary function exception because

whether, and at what time, the Navy should have undertaken duty to

warn contractor's employees about hazards of working with asbestos

was matter of discretion).

The plaintiffs do not address these cases and instead

rely on out-of-circuit cases which neither bind us nor support

their argument.10 In particular, the plaintiffs rely on Andrulonis

v. United States, 952 F.2d 652 (2d Cir. 1991), and Whisnant v.

United States, 400 F.3d 1177 (9th Cir. 2005). In Andrulonis, a

government researcher contracted rabies after his supervisor failed

10
In addition to decisions from beyond this circuit, the
plaintiffs invoke the Supreme Court's decision in Indian Towing Co.
v. United States, 350 U.S. 61 (1955). That decision did not
involve the discretionary function exception and instead concerned
the meaning of "in the same manner and to the extent as a private
individual under like circumstances," in 28 U.S.C. § 2674. Indian
Towing, 350 U.S. at 64-65. We need not address it further here.

-30-
to warn him about dangerous conditions in the laboratory where he

worked. 952 F.2d at 653. The Second Circuit held that no policy

considerations could explain a failure to warn about such "obvious,

easily-correctable dangers in experiments." Id. at 655. In

Whisnant, the plaintiff alleged that he became ill because the

government negligently failed to address "toxic mold" at a

commissary on a Naval base. 400 F.3d at 1179-80. The Ninth

Circuit agreed, holding that the mold presented an "obvious health

hazard," id. at 1183, and that "a failure to adhere to accepted

professional standards is not susceptible to a policy analysis,"

id. (quoting Bear Medicine v. United States ex rel. Sec'y of the

Dep't of Interior, 241 F.3d 1208, 1217 (9th Cir. 2001)) (internal

quotation mark omitted).

The present case does not present a situation akin to

those in Andrulonis and Whisnant. Unlike the obvious, easily-

correctable danger at issue in Andrulonis, the plaintiffs do not

challenge an obvious health hazard or an easily-correctable danger

from environmental effects.11 Instead, the plaintiffs argue that

11
We do not reach the question of whether the plaintiffs here
alleged a causal connection between the claimed lack of notice of
pollutants inherent in military exercises and their injuries.
Turning to the issue of failure to warn, in fact, it was
well known the Navy was engaged in such military exercises. "[I]n
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 . . . ." Abreu,
468 F.3d at 23. The Navy obtained an interim permit for the AFWTF
in 1980. Id. at 24. In 1983, the Navy and the government of
Puerto Rico entered into a Memorandum of Understanding under which

-31-
the Navy assumed certain obligations concerning disclosure of

pollution given that it detonated and fired live ammunition on

Vieques during inherently polluting military exercises. Nor do the

plaintiffs assert that the Navy's conduct violated a professional

set of guidelines like the professional guidelines at issue in

Whisnant. Their argument instead amounts to the assertion that the

pollution at issue here was known to be significant during the

operations, and that therefore questions related to disclosure

could not be subject to policy considerations.

This argument ignores that the Navy, like other agencies,

must weigh competing interests between "secrecy and safety,

national security and public health." Abreu 468 F.3d at 26

(internal quotation mark omitted).

Both the D.C. and Ninth Circuits have recognized such

competing considerations in similar situations concerning

disclosures about pollutants by the United States military in cases

holding that the discretionary function exception applies. See

Loughlin v. United States, 393 F.3d 155 (D.C. Cir. 2004); In re

Consol. U.S. Atmospheric Testing Litig., 820 F.2d 982 (9th Cir.

1987). In Loughlin, the D.C. Circuit rejected the argument that

the government's decision to bury toxic World War I munitions under

a Washington, D.C., neighborhood without public disclosure was not

the Navy made certain changes in the AFWTF. Id. The plaintiffs do
not and cannot make the claim that the Navy never provided any
notice of the environmental impact of its activities.

-32-
susceptible to policy considerations. 393 F.3d at 164-66. In

Atmospheric Testing, the Ninth Circuit similarly rejected the

argument that the government's decision not to disclose radiation

hazards from a military testing program were not susceptible to

such considerations. 820 F.2d at 996-99.

Both courts, while noting the existence of safety risks,

held that the government's interests in security, secrecy, and

public order were also relevant in its decision whether to make

disclosures to the public. Whether to warn the public about the

munitions, the D.C. Circuit held, "required balancing 'competing

concerns of secrecy and safety, national security and public

health.'" Loughlin, 393 F.3d at 164 (quoting Loughlin v. United

States, 286 F. Supp. 2d 1, 23 (D.D.C. 2003)). Similarly, whether

to warn the public about the radiation, the Ninth Circuit held,

"required balancing the magnitude of the risk from radiation

exposure" against "the potential consequences of creating public

anxiety and the health hazards inherent in the medical responses to

the warning." Atmospheric Testing, 820 F.2d at 997.

The plaintiffs attempt to distinguish these two cases by

arguing that the Navy allegedly actively facilitated their exposure

to health hazards, whereas the government actors in Loughlin and

Atmospheric Testing did not. The plaintiffs have made no specific

allegations that the government actively facilitated such exposure.

They rely only on a range manual stating that the Navy occasionally

-33-
allowed fishermen to retrieve traps from "adjacent waters" and a

single journal article that states, without citation, that the Navy

allowed farmers to graze cows in areas of the AFWTF. At most,

these allegations show that on limited occasions the Navy permitted

access to lands and waters in what was a discretionary decision.

Plaintiffs do not claim that a statute or regulation mandated a

duty to even do that, much less anything more than that. Moreover,

these allegedly facilitative actions are no different from the

facts in Loughlin and Atmospheric Testing, where the government

also allegedly allowed members of the public to be exposed to

pollutants.

In their reply brief, the plaintiffs also advance a

variety of more minute factual distinctions between this case and

both Loughlin and Atmospheric Testing. None of these distinctions

are relevant here. We do not rely on these two cases as binding

authority. Rather, we rely on them as illustrative of the

proposition that disclosures about safety risks attendant to

military operations may be subject to other policy considerations.

Here, the government had reason to be concerned with the national

security implications of disclosing information about its

operations on Vieques.

Numerous cases in the courts of appeals hold that the

government's decision whether to warn about the presence of toxins,

carcinogens, or poisons falls under the discretionary function

-34-
exception to the FTCA's waiver of sovereign immunity. See Ross v.

United States, 129 F. App'x 449 (10th Cir. 2005) (discretionary

function exception applied to Air Force's decision whether and how

to warn neighbors of contamination of ground water by

trichloroethylene buried by Air Force); Savary v. United States,

No. CV-95-07752, 1999 WL 1178956 (9th Cir. Dec. 14, 1999) (per

curiam) (table case) (Jet Propulsion Laboratory's failure to issue

warnings to its employees regarding dangers of exposure to soil and

groundwater contaminated by hazardous materials fell under the

discretionary function exception because the decision to make such

a warning required judgments balancing the magnitude of risk

associated with contamination with the risks and burdens of a

public warning program); Minns v. United States, 155 F.3d 445, 450

(4th Cir. 1998) (military's decision whether to warn veterans about

dangers of inoculations or exposure to pesticides fell under

discretionary function exception, and "questioning the military's

decision" would create a "court-intrusion problem"); Maas v. United

States, 94 F.3d 291, 297 (7th Cir. 1996) (Air Force's decision not

to warn veterans of cancer dangers associated with cleaning up

crash site of bomber carrying nuclear weapons fell under

discretionary function exception: "[d]eciding whether health risks

justify the cost of a notification program, and balancing the cost

and the effectiveness of a type of warning, are discretionary

decisions"); Angle v. United States, No. 95-1015, 1996 WL 343531,

-35-
at *3 (6th Cir. June 20, 1996) (per curiam) (table case) (Air

Force's decision not to warn occupants of base housing of lead

paint contamination fell under discretionary function exception:

the Air Force "had to balance the potential effectiveness of a

general warning against the possibility that such a warning might

cause unfounded fears"); Daigle v. Shell Oil Co., 972 F.2d 1527

(10th Cir. 1992) (Army's failure to warn residents that cleanup of

nearby toxic waste dump could cause exposure to waste fell under

discretionary function exception because procedures implementing

cleanup implicated policy considerations underlying CERCLA response

actions). It is not just the military which has been shielded by

the discretionary function exception from claims under the FTCA for

alleged breach of a duty to warn; non-military government agencies

have been so shielded as well. See Smith v. Johns-Manville Corp.,

795 F.2d 301 (3d Cir. 1986) (General Service Administration's

decision to sell surplus asbestos "as is" without warnings or

warranties fell within the discretionary function exception); Begay

v. United States, 768 F.2d 1059 (9th Cir. 1985) (decision of Public

Health Service not to warn uranium miners of the dangers they were

exposed to was clearly within the ambit of the discretionary

function exception).

The law as announced by the Supreme Court requires

dismissal of the claim. It is clear that the Navy engaged in both

choice and judgment as to who had permission to be in AFWTF lands

-36-
and waters and what was said about that access. See Gaubert, 499

U.S. at 325 (discretionary function exception reached decisions

made by federal regulators in overseeing savings and loan

association's operations); Boyle v. United Techs. Corp., 487 U.S.

500, 511 (1988) (selection of appropriate design for military

equipment to be used by the Armed Forces is a discretionary

function); Varig Airlines, 467 U.S. at 819-20 (discretionary

function exception barred claims based on FAA's alleged negligence

in implementing and applying a "spot-check" system of compliance

review). It is also clear that this exercise of discretion is

susceptible to policy-related judgments. The Navy's choices were

not pursuant to meeting the regulatory requirements of another

agency, but pursuant to its judgment as to how it conducted its

military operations. As the government's brief says, "With respect

to any warning, the Navy would have had to balance its military and

national security needs against any perceived benefits to public

health and safety in light of the risks and burdens of a warning

program and the great public anxiety warnings could create."

The Supreme Court has made clear that federal courts are

constrained not to interfere with the exercise of such discretion

by any agency, and that is particularly so in the running of

military operations. No concerns are raised as to civilian control

of the military. In a case reversing an injunction against the

Navy for alleged NEPA violations, the Supreme Court noted, "'To be

-37-
prepared for war is one of the most effectual means of preserving

peace.' . . . One of the most important ways the Navy prepares for

war is through integrated training exercises at sea." Winter v.

Natural Res. Def. Council, Inc., 129 S. Ct. 365, 370 (2008)

(quoting 1 Messages and Papers of the Presidents 57 (J. Richardson

comp. 1897) (statement of Pres. George Washington)). Courts "give

great deference to the professional judgment of military

authorities concerning the relative importance of a particular

military interest." Id. at 377 (quoting Goldman v. Weinberger, 475

U.S. 503, 507 (1986)) (internal quotation marks omitted).

Plaintiffs do not even claim that these judgment calls violated

mandatory federal law.

It is not the role of the courts to second-guess the

Navy's conclusions after it weighed these competing considerations.

See Gaubert, 499 U.S. at 323. As a result, the courts have been

stripped of their jurisdiction over this claim and may not

entertain this cause of action.

III.

For the reasons stated above, the dismissal of

plaintiffs' complaint was required by law.

This opinion takes no position on whether the Navy's

operations on Vieques have had adverse health effects on the

island's residents. It holds only that the plaintiffs have not

stated a valid claim for damages under the FTCA.

-38-
 Nonetheless, while the majority's view is that the

dismissal of the suit must be affirmed, and the dissent disagrees,

the plaintiffs' pleadings, taken as true, raise serious health

concerns. The government has acknowledged the existence of these

concerns.12 The majority and the dissent agree that these issues

should be brought to the attention of Congress. The Clerk of Court

is instructed to send a copy of this opinion to the leadership of

both the House and Senate.

The judgment of the district court is affirmed. No costs

are awarded.

-- Dissenting Opinion Follows –-

12
The brief of the United States has advised the court that
the Agency for Toxic Substance Disease Registry (ATSDR) of the
Centers for Disease Control and Prevention "is in the process of
taking a 'fresh look' at potential environmental exposures to the
population of Vieques as a result of the Navy's training
activities." The reasons stated for the review were gaps in the
data on which prior reports had relied, and that the prior reports
did not adequately consider either vulnerable populations or the
limitations and uncertainty of the findings.

-39-
 TORRUELLA, Circuit Judge (Dissenting). The majority

strikes a melancholic chord in its treatment and analysis of the

Plaintiffs' allegations in this case. Sadly, this is the same

chord that has reverberated throughout the long-standing continuum

of disputes and grievances between the United States citizens

residing in Puerto Rico's two off-shore municipalities of Culebra

and Vieques, and the Government of the United States. It resonates

even more tellingly in this appeal when considered in the light of

the turbulent history of this relationship.

The first chapter of this sorry tale commenced in 1941,

when the United States expropriated the overwhelming majority of

the lands in Vieques and Culebra, thereafter declaring them to be

military reservations. In the remaining areas there existed, and

continue to exist to this day, full scale civilian communities with

organized municipal governments that are fully integrated to the

rest of the political system of the Commonwealth of Puerto Rico.13

These communities were thereafter encapsulated within the

surrounding federal lands.14

13
The population of Culebra consists of about 1,000 permanent
residents while that of Vieques is about 9,300 persons.
14
See Romero-Barceló v. Brown, 478 F. Supp. 646, 659-60
(D.P.R. 1979) (as to Vieques, describing the Navy's property as
"physically divided into two sections [that are] bisected by the
civilian area of [the island]"). In the case of Culebra, by
presidential proclamation in 1941, the entire air space and waters
surrounding Culebra, including the civilian municipality, were
interdicted by the U.S. Navy. See Feliciano v. United States, 297
F. Supp. 1356 (D.P.R. 1969), aff'd, 422 F.2d 943 (1st Cir. 1970);

-40-
 Since the Government of the United States took possession

of these lands, the U.S. Navy has almost continuously conducted

military exercises involving air, naval, and field artillery

bombardments with live and inert munitions on both Culebra and

Vieques, as well as amphibious and land operations by the Marine

Corps, the latter of which predominantly took place in Vieques.15

The seething, unresolved controversies generated by these

activities, affecting the daily lives of the civilian residents of

Vieques and Culebra, as well as a significant number of the general

population of Puerto Rico, led to predictable consequences.

In 1975, the Navy was forced to terminate its operations

in Culebra16 and to transfer its aerial and naval bombardments to

Vieques. Because of the resulting increased intensity of these

activities in Vieques17 -- an island with a substantially larger

Exec. Order No. 8684, 6 Fed. Reg. 1016 (Feb. 14, 1941) (designating
the "Culebra Island Naval Defensive Sea Area").
15
See Romero-Barceló, 478 F. Supp. at 659-60 (describing use
of beaches by Marines for amphibious landings).
16
Exec. Order No. 11,886, 40 Fed. Reg. 49,071 (Oct. 21, 1975)
(abolishing the "Culebra Island Naval Defensive Sea Area"
established by Executive Order No. 8684, and noting that the
"Culebra Island Naval Airspace Reservation" had been since revoked
by the Federal Aviation Administration at the Navy's request). See
Abstract, N.Y. Times, Oct. 20, 1975, available at 1975 WLNR 56658
(reporting on departure of Navy from Culebra).
17
See Romero-Barceló, 478 F. Supp. at 656 n.24 (noting
evidence of increase in the intensity of operations in Vieques
between 1975 and 1979, reflected in the amount of artillery used,
naval gunfire realized, and air-to-ground ordnance delivered).

-41-
civilian population than that of Culebra -- matters were

exacerbated to the point that these actions became politically

untenable for the Navy,18 forcing it to totally close its ranges and

maneuvering areas in Vieques in 2003.19 Finally, in 2004, the Navy

abandoned the support base for the Culebra/Vieques complex -- the

Roosevelt Roads Naval Air Station20 in nearby Ceiba, Puerto Rico.21

18
See generally Kathleen Margareta Ryder, Vieques' Struggle
for Freedom: Environmental Litigation, Civil Disobedience, and
Political Marketing Proves Successful, 12 Penn St. Envtl. L. Rev.
419, 423-35, 437-43 (2004) (describing unsuccessful litigation by
the Commonwealth government, Puerto Rican environmental
organizations, and private citizens to enjoin the activities of the
Navy in Vieques; describing rise of civilian protest movement).
19
See Resolution Regarding Use of Range Facilities in
Vieques, Puerto Rico (Referendum), 65 Fed. Reg. 5729 (Jan. 31,
2000) (restricting use of Vieques training range to 90 days per
year pending a referendum by the citizens of Vieques on the future
of Navy exercises on the island, giving citizens a choice between
allowing naval training indefinitely in return for $50 million for
infrastructure development or requiring the Navy to leave by May of
2003); Press Release, Dep't of Defense, Department of Navy
Transfers Vieques Property (Apr. 30, 2003), available at
http://www.defense.gov/releases/release.aspx?releaseid=3798 (last
visited Nov. 22, 2011) (announcing Navy's transfer of all real
property on the eastern end of Vieques to the administrative
jurisdiction of the Department of Interior, requiring development
of the land for use as a wildlife refuge and that Navy retain
responsibility for environmental cleanup); Iván Román, Navy Ships
Out of Island, Vieques Residents Cheer End of Drills, Face Health
Woes, Chi. Trib., May 1, 2003, available at 2003 WLNR 15336471.
20
At the time, Roosevelt Roads was one of the largest U.S.
naval bases in the world.
21
Department of Defense Appropriations Act of 2004,
§ 8132(a), 117 Stat. 1054 (2003) (mandating closure of Naval
Station Roosevelt Roads within six months of enactment); see Big
U.S. Navy Station in Puerto Rico Closes, Seattle Times, April 1,
2004, available at 2004 WLNR 1778245.

-42-
 This Court has played an important role in this unhappy

tale, having contributed in no small way to buttressing one side of

the United States-Culebra/Vieques conundrum in a plethora of civil

-43-
and criminal cases,22 the outcome of which, in

22
See, e.g., Abreu v. United States, 468 F.3d 20 (1st Cir.
2006) (appeal from dismissal of FTCA action against the Navy for
violation of RCRA); United States v. Pérez-González, 445 F.3d 39
(1st Cir. 2006) (appeal from conviction for destruction of
government property in the U.S. Naval Training Facility in
Vieques); United States v. Zenón-Encarnación, 387 F.3d 60 (1st Cir.
2004) (affirming conviction for trespass on military base in
Vieques); United States v. Ventura-Meléndez, 321 F.3d 230 (1st Cir.
2003) (same); United States v. Figueroa-Arenas, 292 F.3d 276 (1st
Cir. 2002) (appeal from $500 fine imposed on lawyer for alleged
misconduct while defending a client accused of trespassing in
Vieques military reservation); United States v. Mulero-Joubert, 289
F.3d 168 (1st Cir. 2002) (reversing conviction for trespass on
military base in Vieques); United States v. Zenón-Rodríguez, 289
F.3d 28 (1st Cir. 2002) (affirming conviction for trespass on
military base in Vieques); United States v. Ayala, 289 F.3d 16 (1st
Cir. 2002) (same); United States v. Guzmán, 282 F.3d 56 (1st Cir.
2002) (same); United States v. De Jesús, 277 F.3d 609 (1st Cir.
2002) (same); United States v. Burgos-Andújar, 275 F.3d 23 (1st
Cir. 2001) (same); United States v. Silva-Rosa, 275 F.3d 18 (1st
Cir. 2001) (same); United States v. Ventura-Meléndez, 275 F.3d 9
(1st Cir. 2001) (same); United States v. Sued-Jiménez, 275 F.3d 1
(1st Cir. 2001)(same); Water Keeper Alliance v. United States Dep't
of Def., 271 F.3d 21 (1st Cir. 2001) (appeal from denial of request
for preliminary injunction to stay Navy's military exercises in
Vieques); United States v. Maxwell, 254 F.3d 21 (1st Cir. 2001)
(affirming conviction for trespass on military base in Vieques);
United States v. Sharpton, 252 F.3d 536 (1st Cir. 2001) (same);
United States v. Saadé, 800 F.2d 269 (1st Cir. 1986) (appeal from
determination that 33 C.F.R. § 204.234 did not unreasonably
interfere with or restrict the food fishing industry, where
defendants had been convicted for entering restricted waters during
naval gunnery practice); United States v. Puerto Rico, 721 F.2d 832
(1st Cir. 1983) (affirming district court's order denying the
Commonwealth's motion to dismiss the Navy's suit challenging a
determination by the Commonwealth's Environmental Quality Board
that the Navy was violating water quality standards); United States
v. Zenón, 711 F.2d 476 (1st Cir. 1983) (denial of appeal from
issuance of permanent injunction forbidding unlawful entrance in
Vieques restricted areas); Romero-Barceló v. Brown, 655 F.2d 458
(1st Cir. 1981) (appeal arising from post-judgment proceedings);
United States v. Saadé, 652 F.2d 1126 (1st Cir. 1981) (affirming in
part conviction for trespass on military base in Vieques and
remanding to determine whether danger zone regulation unreasonably
interfered with food-fishing industry); United States v. Parrilla-

-44-
retrospect, only served to fuel an already hot fire.

This Court's dissonant tune reaches a crescendo in the

present case with the majority's incorrect finding that Plaintiffs'

complaint fails to allege sufficient facts to overcome the

government's motion to dismiss pursuant to Rule 12(b)(1). As will

be shown, the majority fails to properly credit Plaintiffs'

supported jurisdictional averments, and goes too far in carving out

an unwarranted exception to the Federal Tort Claims Act's (FTCA)

waiver of sovereign immunity for the exercise of military

authority. I am thus compelled to dissent.

I.

On September 5, 2007, Juanita Sánchez, on behalf of her

minor child, Debora Rivera-Sánchez, and 7,124 additional residents

of Vieques, filed their complaint in this case.23 The United States

responded by filing a motion to dismiss pursuant to Fed. R. Civ. P.

Bonilla, 648 F.2d 1373 (1st Cir. 1981) (reversing conviction for
trespass on military base in Vieques); Romero-Barceló, 643 F.2d 835
(1st Cir. 1981) (reversing district court's denial of injunction to
stop military operations in Vieques that were found to be in
violation of NEPA); United States v. Parrilla-Bonilla, 626 F.2d 177
(1st Cir. 1980) (disallowing disqualification of sentencing judge
in case involving conviction for trespassing on Vieques military
property); Feliciano v. United States, 422 F.2d 943 (1st Cir. 1970)
(enforcement of Presidential order creating "Culebra Island Naval
Defensive Sea Area" against civilian population of Culebra not a
taking of plaintiff's property or violation of right to travel or
due process).
23
The complaint was originally filed in the District Court
for the District of Columbia. It was transferred to the District
of Puerto Rico on March 16, 2009.

-45-
12(b)(1), alleging lack of subject matter jurisdiction. The

district court granted this motion, relying principally on our

decision in Abreu v. United States, 468 F.3d 20 (1st Cir. 2006), in

which we held that an action for damages was not available under

the FTCA for a violation of the Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. §§ 6901 et seq.

Although the majority pays lip service to the

well-established rule that on a Rule 12(b)(1) motion a court must

"credit the plaintiff's well-pled allegations and draw all

reasonable inferences in the plaintiff's favor," Maj. Op. at 13

(citing Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir.

2010)), its application of this precept to the instant case is

permeated with an unwarranted skepticism of Plaintiffs' claims, a

condition which results in an improper under-valuation of the

allegations in the complaint. I will therefore, first, explore the

legitimate boundaries of Rule 12(b)(1), and second, apply them to

the allegations of Plaintiffs' complaint and their relevant

jurisdictional averments.

This Court "afford[s] plenary review to a district

court's order of dismissal for lack of subject matter

jurisdiction." Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st

Cir. 2003). "At the pleading stage, such an order is appropriate

only when the facts alleged in the complaint, taken as true, do not

justify the exercise of subject matter jurisdiction." Id. In

-46-
assessing whether the plaintiff has put forward an adequate basis

for jurisdiction, "the court must credit the plaintiff's well-

pleaded factual allegations (usually taken from the complaint, but

sometimes augmented by an explanatory affidavit or other repository

of uncontested facts), draw all reasonable inferences from them in

[the plaintiff's] favor, and dispose of the challenge accordingly."

Valentín v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

See also Merlonghi, 620 F.3d at 54 (on a motion to dismiss for lack

of subject matter jurisdiction the court may also "consider

whatever evidence has been submitted, such as [] depositions and

exhibits") (quoting Aversa v. United States, 99 F.3d 1200, 1210

(1st Cir. 1996)).

This standard is the same as is applied on a Rule

12(b)(6) motion. See McCloskey v. Muller, 446 F.3d 262, 266 (1st

Cir. 2006) ("Under either [Rules 12(b)(1) or 12(b)(6)], we review

the lower court's order de novo, accepting the plaintiffs' well-

pleaded facts as true and indulging all reasonable inferences in

their behoof."). We recently clarified in Ocasio-Hernández v.

Fortuño, 640 F.3d 1 (1st Cir. 2011), how this "well-pleaded facts"

standard should be applied, and set forth a highly relevant

discussion of what the Supreme Court's specific determinations were

in the two leading cases in this area of the law, Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556

U.S. 662, 129 S. Ct. 1937 (2009), as to a plaintiff's actual burden

-47-
at the motion to dismiss stage. Importantly, Ocasio-Hernández

indicates that under Twombly, "'we do not require heightened fact

pleading of specifics, but only enough facts to state a claim to

relief that is plausible on its face.'" 640 F.3d at 8 (quoting

Twombly, 550 U.S. at 570).

Per the Iqbal decision, we described the "two-pronged

approach . . . implicit in [] Twombly," pursuant to which we must

first separate a complaint's factual allegations from its legal

conclusions. Ocasio-Hernández, 640 F.3d at 10. "The second prong

. . . requires a reviewing court to accept the remaining factual

allegations in the complaint as true and to evaluate whether, taken

as a whole, they state a facially plausible claim." Id. at 10-11

(emphasis added). Moreover, "[n]on-conclusory factual allegations

. . . must [] be treated as true, even if seemingly incredible."

Id. at 12 (citing Iqbal, 129 S. Ct. at 1951). We emphasized that

the court should not "attempt to forecast a plaintiff's likelihood

of success on the merits," and instead should "evaluate the

cumulative effect of the factual allegations." Id. at 13-14. In

short, "[t]he question confronting a court on a motion to dismiss

is whether all the facts alleged, when viewed in the light most

favorable to the plaintiffs, render the plaintiff's [sic]

entitlement to relief plausible." Id. at 14 (relying on Twombly,

550 U.S. at 569 n.14).

-48-
 Applying these guidelines to the allegations raised in

the complaint and to all of the relevant evidence proffered in

support of jurisdiction, Merlonghi, 620 F.3d at 54, it is clear

that Plaintiffs in this case have met their jurisdictional burden.

It is also obvious that the majority has failed to judge the

complaint by the rules that have just been recited.

II.

I begin with the incontrovertible proposition that

Plaintiffs are suing under the FTCA, not the Clean Water Act

(CWA).24 As will be discussed infra, however, the Navy's alleged

24
According to the district court and the majority of this
panel, our decision in Abreu, read in conjunction with Middlesex
County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S.
1 (1981), requires the conclusion that an action for damages in
this case is foreclosed under the FTCA if it is based on the
violation of a mandatory permitting requirement under the CWA.
Maj. Op. at 17-21. See Abreu, 468 F.3d at 32 (finding that
"allowing the recovery of damages in a FTCA suit, based on the
violation of a mandatory permitting requirement" under a federal
statute that precludes compensatory damages "would undermine the
intent of Congress"); see also Sea Clammers, 453 U.S. at 18
(holding that the structure and legislative history of the CWA
indicated there is no implied cause of action for compensatory
damages under the citizen-suit provision of the Act). However, I
believe the majority's conclusion does not account for the
significant factual differences between this case and Abreu, noted
infra, which places this case outside the confines of such a
holding. Among those differences is the fact that the complaint in
this case contains various alternative theories of liability, and
was not "specifically designed to achieve an end run around"
congressional limitations to actions for damages under the CWA.
Abreu, 468 F.3d at 32 (noting complaint originally brought for
Navy's RCRA violations, which claims were dismissed, and that
plaintiffs continued to base their state-law tort claims on the
RCRA standard of liability, triggering court's concern that the
FTCA claim at issue had been "specifically designed" to undermine
congressional limitations on RCRA private damages actions). It

-49-
violations of its National Pollutant Discharge Elimination System

(NPDES) permit, as well as other mandatory directives, are what

allow Plaintiffs to proceed under the FTCA because their law suit

falls outside the discretionary function bar of the statute. See

United States v. Berkovitz, 486 U.S. 531, 544 (1988) ("When a suit

charges an agency with failing to act in accord with a specific

mandatory directive, the discretionary function exception does not

apply."). Under the FTCA the United States "shall be liable . . .

relating to tort claims, in the same manner and to the same extent

as a private individual under like circumstances . . . ." 28

U.S.C. § 2674. This is a liability that includes "the military

departments" and "members of the military or naval forces of the

United States." Id. § 2671. The FTCA does not apply, however, to

"[a]ny claim . . . based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on

the part of the federal agency or an employee of the Government

. . . ." Id. § 2680(a). Thus, any claim based on the law of the

jurisdiction where the alleged tort takes place is a valid FTCA

claim, provided that an administrative claim has been duly filed

pursuant to 28 U.S.C. § 2675 (requiring exhaustion of

should also be noted that the FTCA claim in Sea Clammers was
dismissed at the district court level because plaintiffs had failed
to file administrative claims before proceeding to the courts, and
thus the FTCA claims were not part of the Sea Clammers rationale.
Sea Clammers, 458 U.S. at 8.

-50-
administrative remedies), and that the discretionary function

exception (or any other statutory exception) does not apply.25

Leaving aside for the moment the issue of the

discretionary function exception, Plaintiffs allege eight causes of

action under Puerto Rico law which, if proven, would allow them to

recover compensatory damages from the Navy as if it were "a private

individual in like circumstances." Id. § 2674. Of these, Count I,

alleging negligence under Article 1802 of the Puerto Rico Civil

Code, P.R. Laws Ann. tit. 31, § 5141, claims, among other things,

that despite the Navy's knowledge that its various activities

created dangerous, toxic conditions within the Atlantic Fleet

Weapons Training Facility (AFWTF) -- as the Vieques Naval

Reservation was officially called -- the Navy negligently failed to

warn the citizens of Vieques of the presence and harmful effects of

the "numerous known carcinogenic compounds and substances, heavy

metals, and other known dangerous substances, compounds, elements,

and[] materials" present in the AFTWF and surrounding waters.

Plaintiffs also argue that the Navy knowingly invited the residents

of Vieques to enter onto its contaminated property for the purpose

of fishing and cattle herding.

25
Plaintiffs allege in the complaint, and it is uncontested,
that they exhausted the administrative claims process; that they
received on March 12, 2007 the Navy's final denial letter; and that
thereafter they filed their complaint within the six-month time
period prescribed by 28 U.S.C. § 2675(a).

-51-
 Article 1802 of Puerto Rico's Civil Code imposes

liability for tort damages on "[a] person who by an act or omission

causes damage to another through fault or negligence." P.R. Laws

Ann. tit. 31, § 5141. Liability turns on three basic elements:

(1) evidence of physical or emotional injury, (2) a negligent or

intentional act or omission (the breach of duty element), and (3) a

causal nexus between the injury and the defendant's act or omission

(i.e., proximate cause). Vázquez-Filippetti v. Banco Popular de

P.R., 504 F.3d 43, 49 (1st Cir. 2007) (citing Torres v. KMart

Corp., 233 F. Supp. 2d 273, 277-78 (D.P.R. 2002)). "As is true in

most jurisdictions, foreseeability is a central issue in these

cases, as it is an element of both breach of duty and proximate

cause." Id. at 49 (citation omitted). "[A] defendant only

breaches his duty if he acted (or failed to act) in a way that a

reasonably prudent person would foresee as creating undue risk."

Id. (citation omitted); see also Malavé-Félix v. Volvo Car Corp.,

946 F.2d 967, 971-72 (1st Cir. 1991) (as to proximate cause, "[a]

person is liable for injuries that a prudent person reasonably

could anticipate") (citing Pacheco v. A.F.F., 12 P.R. Offic. Trans.

367, 372, 112 P.R. Dec. 296 (1982); Jiménez v. Pelegrina-Espinet,

12 P.R. Offic. Trans. 881, 888, 112 P.R. Dec. 700 (1982)).

As previously detailed, since the 1940s, and until 2003,

the Navy owned approximately 22,000 of Vieques's 33,000 acres and

employed them for use as a training ground and live ordnance range.

-52-
At a minimum, at least as far back as 1979, when Romero-Barceló v.

Brown, 478 F. Supp. 646 (D.P.R. 1979), aff'd in part, vacated in

part, 643 F.2d 835 (1st Cir. 1981), rev'd sub nom. Weinberger v.

Romero-Barceló, 456 U.S. 305 (1982), was decided,26 the Navy was

made aware of the maximum concentrations of various toxic

substances that were legally allowed to be deposited in the waters

of Vieques.27 Pursuant to my order in that case, the Navy sought

an NPDES permit. Thereafter, Permit No. PRG990001 (the "Permit")

was issued to the Navy on October 30, 1984 for its AFWTF

26
Romero-Barceló v. Brown was the result of a trial lasting
three months in which sixty-three witnesses testified, hundreds of
exhibits became part of the record, and two visual inspections took
place, including an underwater viewing of the numerous unexploded
ordnance present in the waters surrounding Vieques. I -- as the
district judge that heard the evidence in that case -- concluded
that the Navy had violated several federal statutes, including the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321,
et seq., and the Federal Water Pollution Control Act (FWPCA), 33
U.S.C. §§ 1251-1376, because it engaged in a "major federal action
significantly affecting the quality of the human environment," 42
U.S.C. § 4332(2)(C), without having prepared and filed an
environmental impact statement (EIS), and because it had discharged
ordnance into the waters of Vieques without first securing a NPDES
permit, as required by 33 U.S.C. § 1311(a). Romero-Barceló, 478 F.
Supp. at 703-05, 663-67. Although I exercised my discretion and
did not issue an injunction prohibiting the continuation of
military activities in Vieques as the plaintiffs in that case
requested, I ordered the Navy to file an EIS and to otherwise
comply with the FWPCA by seeking an NPDES permit "with all
deliberate speed." Romero-Barceló, 478 F. Supp. at 708. These
orders were approved by the Supreme Court in Weinberger v. Romero-
Barceló, 456 U.S. 305 (1982).
27
See Romero-Barceló, 478 F. Supp. at 666 (indicating that
maximum concentrations included (in mg/1 measurement): arsenic,
0.15; barium, 1.0; cadmium, 0.005; chromium, 0.05 (hexavalent) and
0.30 (trivalent); copper, 0.05; iron, 0.200; lead, 0.015; and
mercury, 0.001; among others).

-53-
operations. See Authorization To Discharge Under the National

Pollutant Discharge Elimination System, 49 Fed. Reg. 43,585-02

(Oct. 30, 1984). This document, which is part of the record in

this case, purports to regulate the Navy's discharge of ordnance

into the waters of Vieques during training exercises. It

incorporated a 1983 Water Quality Certificate from the Puerto Rico

Environmental Quality Board (EQB) and required the Navy to meet

either of the following limitations: (1) water quality-based

numerical limits, "as required by the Puerto Rico [EQB]

Certification of October 11, 1983" which assured compliance with

EQB's water quality standards, as provided by Section 401(d) of the

CWA, or (2) natural background concentrations (NBCs), whichever is

higher. Id. at 43,586. The Permit also required that "[a]t no

time shall the maximum values contained in the effluent exceed the

water quality standards after mixing with the receiving water."

Id. at 43,589.

Plaintiffs allege in their complaint, and the record

reflects, that from 1985 through 1999, the Navy reported

measurements of discharges of heavy metals and other materials into

the waters of eastern Vieques, which contained lead, barium,

cadmium, arsenic, boron, cyanide, hexavalent chromium, and thirteen

other substances in violation of the CWA and the Puerto Rico EQB's

water quality standards. On August 27, 1999, the EPA determined

that the Navy had violated the Permit and sent notice of these

-54-
violations in a letter by Deputy Regional Director for EPA-Region

II, William Muszynski, addressed to Assistant Secretary of Defense

Frank Rush. The letter states that, based on the Navy's own

Discharge Monitoring Reports (DMRs) for the period of 1994 through

April 1999, the EPA had "documented 102 exceedances of the water

quality-based permit limits" for toxic substances, including:

boron, cadmium, chromium (hexavalent and total), copper, iron,

lead, manganese, mercury, oil and grease, phenolics, selenium,

silver, sulfide, and zinc. The EPA also stated that due to the

Navy's monitoring deficiencies "[t]he potential for a greater

number of actual violations exists than is evidenced in the DMRs."

Thereafter, on September 15, 1999, the Navy was formally notified

through Captain J.K. Stark, the Commanding Officer of the Roosevelt

Roads Naval Air Station and under whose direction and command the

Vieques AFWTF operated, that the Navy "ha[d] violated the Clean

Water Act."

Plaintiffs claim that notwithstanding the "web of

reporting requirements . . .[, which] should have triggered a

warning to the people of Vieques, many of whom live off the land by

eating fish and fowl and local wildlife," the Navy not only failed

to warn Plaintiffs of these hazards, but in fact facilitated their

exposure to them by allowing fishermen and cattlemen to enter the

AFWTF to engage in these activities. Plaintiffs proffered an

article published in 2005 by the International Journal of

-55-
Environmental Research and Public Health, which indicates that

"[f]rom 1984 to 2000, the US Navy allowed local farmers to graze

cows in the eastern part of Vieques including at the AFWTF. The

potential for direct exposure and the impact on human health is

exemplified by this pathway."28 This assertion is supported by

language in the Range Manual for the AFWTF, also proffered into

evidence, indicating the following at parts 404(d) and (e):

Livestock. Cattle graze on land extending into
the [Eastern Maneuvering Area]. Cattle and
wild horses often wander into the [Live Impact
Area] and should never be intentionally fired
upon . . . .

Fishing Activity. Fish traps are set off the
eastern half of Vieques . . . Fishermen often
set traps in OPAREAs A, B, C, D and H of R-
7104 . . . and recover traps when the range is
cold. Surface units shall watch for these
floats to avoid running them over.

The Range Manual further indicates that "[t]he [i]nner range is

closed every Tuesday and Friday from 0700Q - 0900Q to permit local

fishermen to retrieve fishing traps from adjacent waters." It is

alleged that this pattern of allowing fishermen and cattlemen to

enter the AFWTF not only exposed those citizens directly to the

hazards of the contaminants, but also subjected the rest of the

residents of Vieques to the same, such as Plaintiffs who consumed

the products of fishing and grazing activities.

28
See A. Massol-Deyá, et al., Trace Elements Analysis in
Forage Samples from a US Navy Bombing Range (Vieques, Puerto Rico),
2 Int'l J. Envtl. Res. & Pub. Health 263, 264 (2005).

-56-
 Indeed, the complaint provides the following allegations:

detection of benzene and toluene in the groundwater under the

civilian sectors of Vieques; detection of high concentrations of

lead, cadmium, manganese, copper, cobalt, and nickel in the

vegetation; high concentrations of arsenic, iron, nickel, zinc,

cadmium, cobalt, lead, and copper "in the sea grasses on and

surrounding Vieques"; high concentrations of cadmium and lead

detected in the crab population; and high amounts of mercury,

selenium, arsenic, and zinc detected in fish populations.

Additionally, the Plaintiffs reference studies conducted in

February and March of 2000 by biologist Dr. Arturo Massol-Deyá and

radiochemist Elba Díaz, who found unacceptably high levels of

cadmium, nickel, cobalt, and manganese in crabs. According to Dr.

Massol, further studies show that vegetables and crops in civilian

areas were highly contaminated with lead, cadmium, copper, and

other metals; plants had ten times more lead and three times more

cadmium than samples from the Puerto Rico mainland, as well as

excessive amounts of nickel, cobalt, magnesium, and copper; and

goats grazing in the AFWTF's grasslands contained five to seven

times more cadmium, six times more cobalt, and five times more

aluminum than those found in the Puerto Rican mainland.

The complaint further claims specific harm to Vieques

residents, alleging "[t]hat according to hair studies done to

determine the presence of heavy metals in humans on Vieques[,] the

-57-
following contaminants were discovered in Vieques residents:

[t]oxic levels of mercury; [t]oxic levels of lead []; [a]rsenic

contamination; [c]admium contamination; [a]luminum contamination;

[and a]ntimony contamination." The complaint also alleges that

"scientific studies have found the following non-native

contaminants in high concentrations in the people of Vieques:

cobalt, copper, nickel, vanadium, palladium, iron, magnesium,

manganese, silicon, cerium, dysprosium, lanthanum, neodymium,

praseodymium, silver, ytterbium, and tellurium." Specifically,

studies of hair samples from Vieques residents collected by Dr.

John Wargo, a professor of Risk Analysis and Environmental Policy

at Yale University, showed high levels of mercury and other

contaminants, including lead, cadmium and arsenic; studies carried

out by Dr. Carmen Ortiz Roque, an epidemiologist and physician,

also confirmed these findings. It is additionally claimed that

residents of Vieques experience a 30% higher cancer rate, a 381%

higher hypertension rate, a 95% higher cirrhosis rate, and a 41%

higher diabetes rate than persons in the rest of Puerto Rico.

Further, studies reflect that as a result of the Navy's activities

in Vieques, the island's infant mortality rates have increased

since 1980, and babies born in Vieques have a 33% low-weight rate,

as well as a pre-term delivery rate that is higher than in mainland

Puerto Rico.

-58-
 The complaint further alleges that tests performed on

hair samples from Plaintiff Debora Rivera-Sánchez, a 9-year-old

female resident of Vieques, found toxic levels of lead, cadmium,

and aluminum; Plaintiff Lionel Colón-Adams, a 9-year-old male

resident of Vieques, similarly alleges that tests performed on his

hair samples yielded toxic levels of aluminum, arsenic, lead, and

cadmium. Plaintiff Rivera-Sánchez also alleges that she has been

diagnosed to be suffering from anemia and stomach problems, while

Plaintiff Colón-Ayala claims to have been diagnosed with

respiratory and stomach problems. Both plaintiffs claim that,

according to the Agency for Toxic Substances and Disease Registry

(ATSDR) -- which is a federal public health agency that is a part

of the U.S. Department of Health -- the toxic elements found in

their hair samples correlate with the diseases from which they are

suffering.29

Thus, in brief, given the record before us on appeal and

considering the applicable standard for Rule 12(b)(1) motions, we

must accept as true the following factual allegations:

29
There are a total of 7,125 Plaintiffs in this case, all
with specific allegations that are similar in nature to those
alleged by Plaintiffs Rivera-Sánchez and Colón-Ayala. These range
from diagnoses of asthma, other respiratory illnesses, and high
blood pressure, to cancer, kidney problems, and liver disease. All
of Plaintiffs' hair samples present toxic concentrations of heavy
metals which are, in each case, indicated to correlate to the
diagnosed diseases. These allegations can be found in ¶¶ 36-7151
of the complaint.

-59-
 (1) The Navy has been conducting operations in and around

Vieques since the early 1940s.

(2) These operations have caused substantial toxic

substances, among them arsenic, boron, cyanide, hexavalent

chromium, and thirteen other toxic substances (e.g., benzene and

toluene), to be introduced into the Vieques environment, including

into the air, soil, sea, ground water, vegetation, sea grasses,

fauna, and fish in and around the island, both within the AFWTF and

the civilian sectors.

(3) Since at least 1979, the Navy has been aware and on

notice of the toxic impact of its activities in the AFWTF.

Nevertheless, it has not only continued to pollute the AFWTF with

the aforementioned substances, it has allowed this pollution to

impact the civilian sectors of Vieques, including Plaintiffs.

Additionally, it has aggravated the consequences of this situation

by inviting and allowing commercial fishing and cattle grazing to

take place within the AFWTF; by failing to warn Plaintiffs of the

dangerous conditions to which they were being subjected by their

entry into the AFWTF; and by failing to warn the Plaintiffs that

their consumption of plants, animals, and fish that had been

exposed to and contaminated by the toxic substances found in the

AFWTF could cause serious injury or death to them.

(4) Since at least 1979, the Navy has been required to

comply with NEPA (for engaging in actions that "significantly

-60-
affect[] the quality of the human environment," 42 U.S.C.

§ 4332(C)) and to seek and comply with an NPDES permit.

Notwithstanding this obligation, since at least 1985 the Navy's

toxic discharges into the Vieques waters exceeded the allowable

limits under the Permit, which violations were duly notified to the

Navy by the EPA, with no corrective action being taken.

(5) Plaintiffs are suffering from diseases and injuries

that were caused by the toxic substances that the Navy placed in

the environment and to which Plaintiffs have been directly and

indirectly exposed.

Bearing in mind that "[i]n ruling on a motion to dismiss

for lack of subject matter jurisdiction under Fed. R. Civ. P.

12(b)(1), the district court must construe the complaint

liberally," Aversa, 99 F.3d at 1209-10, there is no question but

that these facts, if proven at trial, present a plausible cause of

action under Article 1802 of the Puerto Rico Civil Code. Under

Puerto Rico law, the failure of a property owner to warn an invitee

of the existence of known dangerous conditions on his or her

property exposes the property owner to liability for damages.30

30
See Rivera-Santiago v. United States, No. 08-1266 (RLA),
2009 WL 702235, at *5 (D.P.R. Mar. 11, 2009) (discussing Puerto
Rico precedent regarding owner's liability as requiring (1) "the
existence of a dangerous condition which [(2)] proximately caused
the injuries alleged and that [(3)] the defendant had either actual
or constructive knowledge of said dangerous condition." (citations
omitted)); see also Mas v. United States, 984 F.2d 527, 530 (1st
Cir. 1993) (discussing Puerto Rico jurisprudence establishing that
property owners are responsible for the safekeeping of business

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Even outside the realm of premises liability,31 the factual

allegations at issue in this case sufficiently articulate a claim

of negligence as "failure to exercise due diligence to avoid

foreseeable risks," Woods-Leber v. Hyatt Hotels of Puerto Rico,

Inc., 124 F.3d 47, 50 (1st Cir. 1997), which is plausibly the

proximate cause of the injuries inflicted upon the plaintiffs.

III.

The Navy attempts to shield itself from liability by

invoking the "discretionary function" exception. Although the

government did not raise this defense in its answer to Plaintiffs'

administrative claim, presenting it for the first time in their

motion to dismiss, the government is allowed to engage in such

sandbagging tactics. See Irving v. United States, 162 F.3d 154,

160 (1st Cir. 1998) (en banc).

The majority concludes that the Navy's failure to warn

Plaintiffs of the dangers previously described is not actionable

because the decision regarding whether to warn was an exercise of

invitees and are liable for injuries resulting from dangerous
conditions of which the owner has either actual or constructive
knowledge).
31
See Rivera-Pérez v. Cruz-Corchado, 19 P.R. Offic. Trans.
10, 119 P.R. Dec. 8 (1987) (suggesting that the difference between
an invitee, a franchisee, a licensee, or a trespasser is not
relevant to the determination, under Puerto Rico law, of whether an
owner is liable for damages sustained by others on his or her
property; tort liability in civil law jurisdictions turns simply on
whether the owner negligently or knowingly caused the plaintiff a
foreseeable harm).

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discretion, and thus the discretionary function exception applies.

I disagree. In considering the application of the discretionary

function exception, the Court must first identify the conduct at

issue. Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st Cir.

2006). The Court then "asks two interrelated questions: (1) Is the

conduct itself discretionary? (2) If so, does the exercise of

discretion involve (or is it susceptible to) policy-related

judgments?" Id. (quoting Muñiz-Rivera, 326 F.3d at 15) (internal

quotation marks omitted).

A.

As to the first question, "[t]he requirement of judgment

or choice is not satisfied if a 'federal statute, regulation, 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.'" United States v. Gaubert, 499 U.S. 315,

322 (1991) (quoting Berkovitz, 486 U.S. at 536). "[I]f the

employee's conduct cannot appropriately be the product of judgment

or choice, then there is no discretion in the conduct for the . . .

exception to protect." Berkovitz, 486 U.S. at 536.

In this case, Plaintiffs allege the existence of

mandatory rules, specific in nature, which required Navy compliance

therewith, but which were not honored by the Navy and were the

cause of Plaintiffs' injuries. To begin with, at least since

Romero-Barceló in 1979, the Navy was aware that it was covered by

-63-
the mandatory provisions of NEPA, that it was polluting the Vieques

environment, and that it was required under the CWA to seek the

NPDES permit and comply with its provisions. It bears noting that

the rulings and orders in Romero-Barceló regarding the Navy's

violations and compliance requirements were affirmed by both this

Court and the Supreme Court. See Romero-Barceló, 643 F.3d at 861-

62 (First Circuit decision affirming district court's finding that

the Navy had "utterly disregarded" statutory mandates and remanding

for issuance of an order that the Navy "take all necessary steps to

insure that no ordnance is discharged into the coastal waters of

Vieques until such time as it obtains a NPDES permit"); see also

Weinberger, 456 U.S. at 307-11, 320 (affirming the district court's

findings and reversing the Court of Appeals on other grounds).

Plaintiffs specifically alleged in their complaint, and proffered

evidence to the effect, that the Navy nevertheless continued to

exceed mandatory minimums under the CWA and the Puerto Rico EQB's

water quality standards, ignoring admonitions by the EPA, as a

result of which Plaintiffs-invitees were injured and

Plaintiffs-civilian bystanders were collaterally damaged. Thus,

the damage claimed here is, in essence, allegedly caused by the

Navy's affirmative actions of inviting civilians onto a known

danger within the government's control, and the Navy's engagement

in violations of mandatory regulations and policies. This is an

important distinction between the present situation and the Abreu

-64-
case, in which no claim was made that the plaintiffs' injuries were

caused by the Navy's invitations or failure to warn.

Furthermore, this is a suit under the FTCA, which only

has one exception that is arguably relevant to the case before us,

the discretionary function exception of 28 U.S.C. § 2680(a). The

issue in this case is not whether the CWA or NEPA created a private

cause of action for damages. Cf. Sea Clammers, 453 U.S. 1 (1981)

(addressing the lack of an implied cause of action for compensatory

damages under 33 U.S.C. § 1365(a), the citizen-suit provision of

the CWA). Indeed, the CWA, NEPA, and other regulations are of

relevance only in determining whether the Navy comes within the

discretionary function exception. This Court is bound by the

higher authority of Gaubert and Berkovitz, which establish the

inapplicability of the discretionary function exception when there

are mandatory legal requirements, such as exist in the present case

by reason of court rulings (Romero-Barceló), federal statutes

(e.g., NEPA and CWA), and specific permit standards (e.g., the

NPDES permit), all of which the Navy has allegedly disregarded to

the claimed prejudice of Plaintiffs.

The CWA provides that "[e]ach department . . . of the

executive . . . engaged in any activity resulting . . . in the

discharge or runoff of pollutants . . . shall be subject to, and

comply with, all Federal, State, interstate, and local requirements

. . . respecting the control and abatement of water pollution in

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the same manner and to the same extent as any nongovernmental

entity . . . ." 33 U.S.C. § 1323(a). It bears emphasizing that

the Navy could have requested a presidential exemption from

compliance with this provision for its military exercises on

Vieques, yet it never did so. See id. ("The President may exempt

any effluent source of any department, agency, or instrumentality

in the executive branch from compliance with any such a requirement

if he determines it to be in the paramount interest of the United

States to do so . . ."). Instead, the Navy had to be ordered to

procure an NPDES permit, which it nevertheless subsequently

violated. In my view, the Navy's failure to make use of this

statutory exemption -- preferring instead to flaunt the statute's

mandates, thereby allegedly causing harm to the citizenry of

Vieques -- militates against the creation of a special category for

the Navy as a regulated party to subvert the FTCA's general waiver

of sovereign immunity. See infra at 33-36. More importantly, the

fact that Congress created a specific mechanism, i.e. Presidential

exception, for the Navy to seek inapplicability of this

environmental statute to its operations where appropriate, clearly

indicates that, sans presidential exception, the Navy was required

to comply with the same, as held in Romero-Barceló. See also 40

C.F.R. § 1506.11 (providing, in the context of NEPA, that "[w]here

emergency circumstances make it necessary to take an action with

significant environmental impact without observing the provisions

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of [NEPA regulations], the Federal agency taking the action should

consult with the [Council on Environmental Quality, within the

Executive Office of the President] about alternative arrangements.

Agencies and the Council will limit such arrangements to actions

necessary to control the immediate impacts of the emergency. Other

actions remain subject to NEPA review.").

Thus, the majority's creation of this lacuna is totally

unsupported by law. If proven, Plaintiffs' contentions would make

the government liable for the resulting tort claims "in the same

manner and to the same extent as a private individual under like

circumstances." 28 U.S.C. § 2674.

It is worth noting that Plaintiffs make additional

allegations in their complaint to support their theory that the

Navy is liable under the FTCA for their injuries from past

contamination and that the discretionary function exception does

not shield it from liability under Gaubert. As the majority

recognizes, see Maj. Op. at 9-10, Plaintiffs allege that the Navy

violated permits concerning depleted uranium, relying on a letter

from the Navy to the Nuclear Regulatory Commission (NRC)32 that

describes an event that took place in 1999 in which two aircraft

fired at least 263 depleted uranium 25 mm rounds on Vieques. The

32
The majority incorrectly states that the letter was sent
by the NRC to the Navy, see Maj. Op. at 9, but a review of the
referenced document reveals that it was sent by Commander G.A.
Huggins, Executive Secretary of the Naval Radiation Safety
Committee to the NRC for Region II.

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letter indicates that "[t]he firing of [depleted uranium]

ammunition on Navy or Marine Corps firing ranges is a violation of

the Navy's Master Material License No. 45-23645-01NA, and

specifically, the Naval Radioactive Material Permit No. 13-00164-

L1NP pertaining to depleted uranium." Plaintiffs further allege

that as of 2001, only 116 of the 263 rounds had been found and

removed. They also allege that studies have found "significantly

higher than background radiation levels about a mile from where the

[depleted uranium] was reportedly fired," and that this suggests

uranium has been used "on several other occasions on Vieques," in

violation of the referenced permits.

The majority finds that these allegations do not sustain

Plaintiffs' FTCA claim because they are "insufficiently supported,"

and that "[Plaintiffs] have failed to adequately allege that the

challenged conduct was non-discretionary, assuming Gaubert would

apply here." Maj. Op. at 24. I believe that in reaching this

conclusion the majority fails to properly credit Plaintiffs'

averments, applying a higher pleading standard than is warranted at

the motion to dismiss stage. See Aversa, 99 F.3d at 1209-10. What

is more, the cases relied upon by the majority to conclude that

Plaintiffs "have identified only vague, permissive, or unidentified

requirements for government conduct," Maj. Op. at 25, do not

involve the alleged violation of permit requirements, as in the

case at hand. See Muñiz-Rivera, 326 F.3d at 14-17 (discretionary

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function exception barred claims arising from alleged negligent

supervision of construction of homes and failure to erect levees

for housing development per applicable regulations); Irving, 162

F.3d at 163-64 (same, in relation to claim of negligently performed

workplace inspections). Plaintiffs have alleged the violation of

specific permits regarding the firing of depleted uranium bullets,

and specifically cite to a letter in which the Navy admits as much.

These allegations, read in conjunction with the rest of the

complaint, bolster the FTCA claim and serve as an independent basis

for liability.

B.

As to the second inquiry in the discretionary function

analysis, the majority holds that the Navy's failure to warn

Plaintiffs of the dangers previously described was a decision

subject to "policy analysis," and thus concludes that it was an

exercise of discretion that exempts the government from liability.

See Maj. Op. at 29-30; see also Gaubert, 499 U.S. at 323 ("When

properly construed, the exception protects only governmental

actions and decisions based on considerations of public policy.")

(internal quotation marks and citation omitted). However, it is

not sufficient to simply assert that some policy analysis took

place; rather, the government must show that its decision could be

the result of a reasonable policy analysis. See, e.g., Shansky v.

United States, 164 F.3d 688, 692 (1st Cir. 1999) (conduct is

-69-
susceptible to policy analysis if "some plausible policy

justification could have undergirded the challenged conduct"

(emphasis added)); see also Berkovitz, 486 U.S. at 539 ("The

discretionary function exception applies only to conduct that

involves the permissible exercise of policy judgment." (emphasis

added)). I find it hard to see how there is any reasonable or

permissible policy analysis that could justify the Navy's failure

to warn Plaintiffs of the known dangers created by the Navy's

violation of the laws and regulations applicable to its conduct.

In our constitutional system of government the military

is subordinate to the civil authority. See Reid v. Covert, 354

U.S. 1, 23 (1957). Thus, whatever discretion the military has, it

is not without bounds. When necessary, the courts have stepped in

to affirm that there are limits on what can be done in the name of

national security. See, e.g., Boumediene v. Bush, 553 U.S. 723

(2008) (holding that enemy combatants detained at the U.S. Naval

Station at Guantanamo Bay, Cuba have the privilege of habeas corpus

despite argument that allowing access to courts would interfere

with military operations); Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 589 (1952) (rejecting President's claim of "inherent

power" to use the military to seize property within the United

States, despite Government's argument that refusal would "endanger

the well-being and safety of the Nation"); Ex Parte Milligan, 71

U.S. (4 Wall.) 2 (1866) (holding unconstitutional the exercise of

-70-
military jurisdiction to try and punish a civilian citizen even

during an insurrection (the Civil War), where Article III courts

were open and functional). I cannot countenance a legal concept or

theory that would give the military qua military carte blanche

license to harm U.S. citizens through its negligent actions without

any consequence.

Contrary to the majority in this case, I find that the

situation presented here is similar to Andrulonis v. United States,

952 F.2d 652 (2d Cir. 1991). In Andrulonis, a government

researcher contracted rabies after his supervisor failed to warn

him about dangerous conditions in the laboratory where he worked.

Andrulonis, 952 F.2d at 653. The Second Circuit held that no

policy considerations could explain a failure to warn about such

"obvious, easily-correctable dangers in experiments." Id. at 655.

The majority distinguishes Andrulonis by arguing that

"[u]nlike the obvious, easily correctable danger at issue in

Andrulonis, the plaintiffs do not challenge an obvious health

hazard or an easily-correctable danger from environmental effects."

See Maj. Op. at 31. However, it seems clear that the Plaintiffs

are in fact alleging such a danger. The environmental

contamination was obvious -- it is undisputed that the Navy knew

about it at least as far back as when Romero-Barceló was decided,

see supra note 14 -- and the danger to civilians could have been

avoided simply by warning them about the risks.

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 The majority points out that "the Navy . . . must weigh

competing interests between 'secrecy and safety, national security

and public health.'" Maj. Op. at 32 (quoting Abreu, 468 F.3d at

26). However, while I recognize that courts must accord great

deference to the military in decisions relating to national

security, I cannot accept that courts must be so deferential as to

effectively give the military carte blanche to put U.S. citizens in

danger when the facts alleged show a clear and simple alternative,

warning them of known dangers created by it. Plaintiffs here are

not claiming that the Navy should have revealed classified

information about tactics or weapons used at Vieques, or that they

should have ceased the military activities. They are simply

claiming that the Navy should have warned them as to the potential

danger of entering onto, and being exposed to, contaminated

property. See Pacheco v. United States, 220 F.3d 1126, 1131 (9th

Cir. 2002) (finding potential liability under the FTCA for failure

to warn invitees to a beach of known dangers); United States v.

White, 211 F.2d 79, 82 (9th Cir. 1954) (failure of government as

land owner to warn business invitee of danger from unexploded

projectiles "could not rationally be deemed the exercise of a

discretionary function"); Henderson v. United States, 784 F.2d 942,

943 n.2 (9th Cir. 1986) (safety decisions at government facility

are operational in nature, and therefore not within the

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discretionary function exception).33 Military decision making may

33
In this regard, I further disagree with the majority that
the present case is similar to Loughlin v. United States, 393 F.3d
155 (D.C. Cir. 2004), or In re Consolidated U.S. Atmospheric
Testing Litigation, 820 F.2d 982 (9th Cir. 1987). See Maj. Op. at
32-34.
The Loughlin case involved chemical munitions that the Army
had buried at a site near Washington, D.C. during and immediately
following World War I. 393 F.3d at 159-60. Roughly 70 years
later, the munitions were discovered and the site was found to be
contaminated. Id. at 160-61. Plaintiffs in that case, who were
residents and landowners in the area, sued on a failure-to-warn
theory. They first argued that the Army's initial decision to bury
the munitions without warning the public was not susceptible to
policy considerations. Id. at 164. The court rejected this
argument, noting that this decision -- made some 70 years earlier,
in the immediate aftermath of a major war -- "required balancing
'competing concerns of secrecy and safety, national security and
public health.'" Id. at 164 (quoting Loughlin v. United States,
286 F. Supp. 2d 1, 23 (D.D.C. 2003)). The plaintiffs also argued
that the government should have warned them about the results of
certain initial tests carried out at the site. Id. at 164-65.
However, the court noted that the tests in question had not been
conclusive, and that "the agency would have had to weigh several
factors, including the reliability of the test . . . [and] the
possibility of unnecessarily alarming [area] residents should the
danger have ultimately proved unfounded . . . ." Id. at 165.
Atmospheric Testing involved claims arising out of the
atmospheric testing of nuclear weapons between the end of World War
II and 1963. 820 F.2d 984. The specific tests at issue were the
very first atmospheric tests ever conducted, and were conducted in
remote areas, including the Nevada desert and islands in the South
Pacific. Id. at 985-86. The plaintiffs, who were soldiers and
civilian contractors who had participated in the testing, sued
under a failure-to-warn theory based on the government's failure to
warn them about the dangers of radiation exposure at the time the
tests were conducted. Id. at 996. The court noted that there was
only "fragmentary knowledge" of the risks at the time; further, a
"specific goal" of the tests was to measure the psychological
reactions of troops to the use of nuclear weapons, and as such "the
government needed complete control over information supplied to the
troops." Id. at 997 & n.17. Under those circumstances, the court
found that the discretionary function exception applied. Id. at
997-98.
The factual and historical context of these cases is
entirely different from the context at issue here. This is not a

-73-
be subject to some deference, but that cannot mean that a military

department should remain immune to the nefarious consequences of

its decisions upon innocent civilians.

C.

Finally, there is nothing in the language or history of

the FTCA that warrants our Court carving out an exclusion from the

liability imposed by Congress for what the majority dubs "regulated

parties" (e.g. the military), under the guise of the discretionary

function exception to the FTCA. Cf. Abreu, 468 F.3d at 28. The

language of 28 U.S.C. § 2680(a) is unambiguous in this respect.

The FTCA does not apply to "any claim . . . based upon the exercise

or performance or the failure to exercise or perform a

discretionary function or duty . . . ." 28 U.S.C. § 2680(a).

Interpreting what constitutes "discretionary" conduct is far

different from creating by judicial fiat a whole class of

governmental entities who are thus given free reign to cause

egregious harm to the citizenry.

In Abreu, this Court observed that prior Supreme Court

cases invoking the rule of Gaubert had involved suits against the

case involving un-confirmed contamination from munitions buried
during wartime, decades earlier. Nor is it a case involving the
then-unknown effects of nuclear weapons testing conducted at the
start of the Cold War, on soldiers and civilian defense contractors
who were themselves involved in the experiments. The plaintiffs
here are civilians who had no connection to the Navy's operations,
and they have alleged that the Navy failed to warn them about
ongoing, known environmental hazards in an area close to civilian
population centers.

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United States based on the activities of federal regulators, as

opposed to regulated parties, and that therefore the Gaubert rule

may be "inapplicable to mandatory directives aimed at a regulated

party." See Abreu, 468 F.3d at 27. I must emphasize that these

observations in Abreu constitute dicta -- "observations relevant,

but not essential, to the determination of the legal questions then

before the court" -- and are thus not binding on this panel.

Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 459

(1st Cir. 1992). The Abreu decision recognized as much. See

Abreu, 468 F.3d at 28 ("[W]e 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.").

I suggest it would be more appropriate if the majority

adhered to the Supreme Court's admonitions to the effect that FTCA

exceptions are not to be construed in an "unduly generous" fashion.

See Kosak v. United States, 465 U.S. 848, 853 n.9 (1984) ("[T]he

proper objective of a court attempting to construe one of the

subsections of 28 U.S.C. § 2680 is to identify those circumstances

which are within the words and reason of the exception -- no less

and no more." (internal quotation marks and citation omitted));

Block v. Neal, 460 U.S. 289, 298 (1983) (admonishing against

interpretation of exemption to the FTCA waiver of sovereign

immunity that would "add to its rigor"). As the Supreme Court

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clarified in Dolan v. United States, "the general rule that a

waiver of the Government's sovereign immunity will be strictly

construed, in terms of its scope, in favor of the sovereign

. . . . [i]s unhelpful in the FTCA context, where unduly generous

interpretations of the exceptions run the risk of defeating the

central purpose of the statute, which waives the Government's

immunity from suit in sweeping language." 546 U.S. 481, 491-92

(2006) (internal quotation marks and citations omitted).

Furthermore, as previously stated, supra at 66-67, the

Navy could have, but did not seek a Presidential exemption. I am

hard put to understand why it is entitled to the judicial exemption

created from whole cloth by the majority.

Nowhere does the medieval concept of "the King can do no

wrong" underlying the doctrine of sovereign immunity, see Donahue

v. United States, 660 F.3d 523, 526 (Torruella, J., concerning

denial of en banc review), sound more hollow and abusive than when

an imperial power applies it to a group of helpless subjects. This

cannot be a proper role for the United States of America. Under

the circumstances alleged in this case I posit that the application

of this anachronistic and judicially invented theory, id., violates

the due process clause of the Constitution. See U.S. Const. amend.

V; see also Donahue, 660 F.3d at 526-27 (citing Edwin M. Bouchard,

Governmental Responsibility in Tort (pt. VI), 36 Yale L.J. 1, 17–41

-76-
(1926); Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L.

Rev. 1201 (2001)).

IV.

Lastly, I take issue with the majority's reference to the

ATSDR's investigation dealing with the Navy's contamination of the

environment in Vieques. See Maj. Op. at 39 n.12. At this

procedural stage this investigation is irrelevant to the present

case. See Ocasio-Hernández, 640 F.3d at 13-14 (the merits of the

issues underlying a complaint are irrelevant at the motion to

dismiss stage); Hosp. Bella Vista, 254 F.3d at 363 (court must

accept as true all well-pleaded factual allegations without

prejudging their weight or plausibility). Furthermore, although I

agree with the majority calling the attention of Congress to the

plight of the citizens of Vieques, an action which I join and

applaud, this referral cannot be considered as an appropriate

alternative or substitute to the exercise by these citizens of

their right to present their legitimate claims, and to have them

resolved, by a Court of the United States.

V.

In this latest chapter to the ongoing Culebra/Vieques

saga, this Court blocks Plaintiffs' access to the courts of the

United States, depriving U.S. citizens who live in Vieques of the

only effective remaining forum in which to seek redress for their

alleged wrongs. Access to the political forum available to most

-77-
other citizens of the United States has already been blocked by

this same Court. See Igartúa v. United States, 654 F.3d 99, 101-02

(1st Cir. 2011) (Torruella, J., concerning the denial of en banc

consideration); see also Balzac v. Porto Rico, 258 U.S. 298, 308-09

(1922) (describing the limited "civil, social, and political"

rights that attach to United States citizens residing in Puerto

Rico). I for one, protest this intolerable and undemocratic

situation in the strongest of terms.

I dissent.

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