[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 12, 2002
No. 01-13032 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 98-00920 CV-T-N
OSI, INC., a corporation
Plaintiff-Appellant,
versus
THE UNITED STATES OF AMERICA,
DONALD RUMSFELD, Honorable,
as Secretary of Defense,
F. WHITTEN PETERS, Honorable,
as Acting Secretary of the Air Force,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(March 12, 2002)
Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS*, District
Judge.
ANDERSON, Chief Judge:
____________________________
*Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting by
designation.
OSI, Inc. is the current owner of property adjacent to Maxwell Air Force
Base near Montgomery, Alabama. The soil and groundwater have been
contaminated by Air Force landfills on and near their property. OSI filed this suit
alleging state law tort claims against the United States, pursuant to the Federal
Torts Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. They later amended their
complaint to include violations of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §§ 6901-6992k, and the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675.
The district court dismissed the FTCA claims for lack of jurisdiction, on the
grounds that the discretionary function exception applied, and granted summary
judgment on the RCRA and CERCLA claims. We affirm the dismissal of the
FTCA claims, but vacate and remand the RCRA and CERCLA decisions for
further consideration by the district court.
I. FACTS
A. Factual Background
For thirty years, beginning in 1956, the U.S. Air Force maintained three
solid waste landfills on and near Maxwell Air Force Base near Montgomery, one
of which was located on private property leased by the Air Force. The three
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landfills, LF4, LF5, and LF6, were used for "household garbage, paper, wood,
scrap metal, paint and paint cans, solvent sludges, and pesticide containers." Some
of the waste also apparently contained hazardous materials. The Air Force ceased
using LF4 in the early 1970s when the lease on the private property expired. LF5
was used from then until 1974, at which point LF6 was opened and used through
1986. LF6 was closed in 1993.
In 1979, OSI, Inc., a manufacturer of metal buildings, purchased property
which includes the site of LF4. The property is adjacent to Maxwell AFB and just
north of the sites of LF5 and LF6. In July, 1997, the Air Force alerted OSI to
possible groundwater contamination from the landfills when it asked to place
monitoring wells on the property. OSI then commissioned its own study of the
contamination.
It appears that there are hazardous compounds in the soil, some of which
exceed federal statutory limits. There is also apparently contamination in the
groundwater which flows through OSI's property in a path toward the Alabama
River and the City of Montgomery. The Air Force has been studying the problem
and developing a restoration program. OSI challenges the scope of the plan and
seeks compensation from the government for loss of property value and past and
future costs arising from the contamination.
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B. Procedural History
OSI, Inc. filed suit against the federal government in August, 1998, pursuant
to the FTCA. It alleged tortious injuries from contamination by the landfills. Both
parties moved for summary judgment. While the motions were pending, the
government made an additional motion to dismiss for lack of subject matter
jurisdiction. According to the government, the actions of the Air Force were
subject to the discretionary function exception of the FTCA.
After completion of the briefing on the motion to dismiss and the
discretionary function issue, OSI filed a second amended complaint, for the first
time adding claims under RCRA and CERCLA. Both parties again moved for
summary judgment on all claims.
In March, 2001, the district court filed orders on all pending motions.
Among its decisions, it granted the government's motion to dismiss the FTCA
claims for lack of subject matter jurisdiction, ruling that the discretionary function
exception applied to the decisions involving the landfills. By separate order, it also
granted the government summary judgment on the RCRA and CERCLA claims.
The court made no written factual findings pertaining to these claims, relying
instead on a single statement adopting the legal reasoning and arguments posited
by the government. OSI now appeals these decisions.
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II. DISCUSSION
A. The Tort Issues
1. The Discretionary Function Exception
The FTCA does not provide for a complete waiver of the federal
government's sovereign immunity. The liability of the United States under the
FTCA is subject to the exceptions contained in 28 U.S.C. § 2680, including the
discretionary function exception now at issue. That exception provides that the
government is not liable for
[a]ny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved
be abused.
28 U.S.C. § 2680(a).
We employ a two-part test for applying the discretionary function exception.
First, we ask whether the act "involv[es] an element of judgment or choice." U.S.
v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273 (1991) (quoting Berkovitz v.
U.S., 486 U.S. 531, 536, 108 S.Ct. 1954, 1958 (1988)); Hughes v. U.S., 110 F.3d
765, 767 (11th Cir. 1997). "[I]f a 'federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow,'" there is no judgment or
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choice involved. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (quoting Berkovitz,
486 U.S. at 536, 108 S.Ct. at 1958-59); see also Phillips v. U.S., 956 F.2d 1071,
1076 (11th Cir. 1992) ("Where there exists a mandatory responsibility, there is no
room for a policy choice."). The inquiry focuses on "whether the controlling
statute or regulation mandates that a government agent perform his or her function
in a specific manner." Hughes, 110 F.3d at 768. A decision will be subject to the
exception unless "'a federal statute, regulation, or policy specifically prescribes a
course of action embodying a fixed or readily ascertainable standard.'" Id.
(quoting Autery v. U.S., 992 F.2d 1523, 1529 (11th Cir. 1993)).
If the conduct does "involv[e] an element of judgment or choice," we then
look at "'whether that judgment is of the kind that the discretionary function
exception was designed to shield.'" Gaubert, 499 U.S. at 322-323, 111 S.Ct. at
1273 (quoting U.S. v. Varig Airlines, 467 U.S. 797, 813, 104 S.Ct. 2755, 2764
(1984)). The exception is intended "to 'prevent judicial "second-guessing" of
legislative and administrative decisions grounded in social, economic, and political
policy through the medium of an action in tort.'" Id. (quoting Varig Airlines, 467
U.S. at 814, 104 S.Ct. at 2765). Thus, "when properly construed, the exception
'protects only governmental actions and decisions based on considerations of
public policy.'" Gaubert, 499 U.S. at 323, 111 S.Ct. at 1274 (quoting Berkovitz,
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486 U.S. at 537, 108 S.Ct. at 1959).
Under this second-prong of the test we look at whether the questioned act is
"'susceptible to policy analysis.'" Hughes, 110 F.3d at 768 (quoting Powers v.
U.S., 996 F.2d 1121, 1125 (11th Cir. 1993)). The exception does not require there
to have been actual "weighing of policy considerations." Hughes, 110 F.3d at 768.
Nor is it limited to decisions at the policy or planning level; it may include day-to-
day management. Gaubert, 499 U.S. at 325, 111 S.Ct. at 1275; Hughes, 110 F.3d
at 768. We focus on "'the nature of the challenged decision in an objective, or
general sense, and ask whether that decision is one we would expect inherently to
be grounded in considerations of policy.'" Autery, 992 F.2d at 1530-31 (quoting
Baum v. U.S., 986 F.2d 716, 720-21 (4th Cir. 1993)). If the decision is inherently
one allowing discretion, we presume that the act was grounded in policy whenever
that discretion is employed. Gaubert, 499 U.S. at 324, 111S.Ct. at 1274; Hughes,
110 F.3d at 768.
2. Analysis
In the face of a factual challenge to subject matter jurisdiction, the burden is
on the plaintiff to prove that jurisdiction exists. Thomson v. Gaskill, 315 U.S. 442,
446, 62 S.Ct. 673, 675 (1942); Menchaca v. Chrysler Credit Corp., 613 F.2d 507,
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511 (5th Cir. 1980).1 Thus, since the government has asserted lack of subject
matter jurisdiction, OSI must prove that the discretionary function exception does
not apply to the disposal of the landfill material. It makes two arguments in this
regard. First, it argues that the manuals which govern landfill decisions created
mandatory obligations for the Air Force, obligations the Air Force failed to fulfill.
Second, with respect to LF6, OSI maintains that RCRA creates an alternate
mandatory obligation, which the Air Force also failed to fulfill.
As a preliminary matter, we find that OSI did not raise this RCRA argument
in the district court. "As a general rule, an appellate court will not consider a legal
issue or theory raised for the first time on appeal." Formby v. Farmers and Merchs.
Bank, 904 F.2d 627, 634 (11th Cir. 1990) (quoting Lattimore v. Oman Constr., 868
F.2d 437, 439 (11th Cir. 1989) (per curiam)). We see no reason to warrant
departure from the general rule here. The briefing on the discretionary function
jurisdictional issue was completed before OSI amended its complaint to include
allegations of RCRA violations. More than ten months passed before the motions
were ruled upon, yet OSI made no attempt to supplement its briefing. It briefed
separately its opposition to summary judgment on the RCRA claims, and
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all of the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.
8
incorporated into that brief all earlier arguments made in response to the motion to
dismiss. However, it in no way presented to the district court the argument that the
alleged RCRA violations overcome the discretionary function exception of the
FTCA. Thus we hold that this argument is waived. OSI is limited to the argument
that was raised before the district court, namely that the relevant Air Force manuals
created a mandatory obligation which overcomes the exception.
We thus address the only argument presented to the district court. Two
courts have previously considered the same Air Force manuals that governed this
situation, reaching opposite conclusions. Compare Clark v. U.S., 660 F.Supp.
1164 (W.D.Wash. 1987) (holding that the manuals create a mandatory obligation
that overcomes the discretionary function exception), aff'd, 856 F.2d 1433 (9th Cir.
1988) (affirming for reasons stated by the district court), with Aragon v. U.S., 146
F.3d 819 (10th Cir. 1998) (rejecting the Clark decision and applying the
discretionary function exception to Air Force decisions governed by the manuals).
We must evaluate the persuasive force for this case of Clark vis-a-vis Aragon.2
2
OSI has placed the district court and this Court in an awkward position. It did
not introduce into evidence the manuals upon which it relies. It is, of course, OSI's
burden to prove that there are regulations or policies that specifically prescribe a course of
action, and that the Air Force in this case departed from that prescribed course. To the
extent that OSI fails in that regard, its case was of course due to be dismissed. However,
the case was litigated below upon the assumption that the manuals involved in this case
were the same as those involved in Clark and Aragon. Like OSI's deficiency, the Clark
opinion also does not describe the substance of the manuals, i.e. does not describe any
9
Because significant portions of the rationale applied by Clark have been supplanted
by subsequent Supreme Court decisions, we find ourselves in agreement with the
Tenth Circuit. Thus, we hold that an agency manual which provides only
objectives and principles for a government agent to follow does not create a
mandatory directive which overcomes the discretionary function exception to the
FTCA.
The decision in Clark was rendered in April, 1987, well before the Supreme
Court "restat[ed] and clarif[ied] the scope of the discretionary function exception."3
See Berkovitz v. U.S., 486 U.S. 531, 538, 108 S.Ct. 1954, 1959 (1988). Berkovitz,
and the subsequent opinion in U.S. v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267
(1991), clearly establish that the first prong of the exception is satisfied unless "a
federal statute, regulation, or policy specifically prescribes a course of action for an
employee to follow." Berkovitz, 486 U.S. at 534, 108 S.Ct. at 1958. The Clark
specifically prescribed courses of action asserted to have been required by the manuals.
Thus, the facts of the instant case with respect to the substance of the Air Force manuals
and of any directives governing relevant courses of action are the facts as set out in the
Aragon opinion. As noted in the text, we agree with the Tenth Circuit that the manuals
state only general principles and objectives and do not constitute specific, mandatory
directives.
3
OSI argues that the Clark does not actually precede Berkovitz, since the Ninth
Circuit affirmed Clark after the opinion in Berkovitz was issued. We note, however, that
the Ninth Circuit merely adopted the reasoning of its district court. In any event, we are
not bound by decisions of our sister circuits, and independently conclude that the
rationale in Clark is not sustainable in light of Berkovitz and Gaubert.
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court recognized that "the determination to have a landfill is a discretionary
function." 660 F.Supp. at 1176. Nonetheless, the court refused to apply the
exception on the grounds that the manuals provide instructions for certain
principles to be followed in the decision-making process. Id. As the Tenth Circuit
pointed out, however, the manuals state general principles and objectives, which
"alone, do[] not equate to a specific, mandatory directive." Aragon, 146 F.3d at
826. We agree. We follow the Tenth Circuit and hold that the waste disposal
decisions at issue involve an element of judgment or choice.4
In addition, we further agree that the second prong of the discretionary
function test is met. Disposal of waste on a military base "involve[s] policy
choices of the most basic kind." Aragon, 146 F.3d at 826. The nature of the
military's function requires that it be free to weigh environmental policies against
security and military concerns. We hold that the decisions at issue here reflect the
kind of judgment that the discretionary function exception is designed to shield.
4
OSI argues that the manuals require at least that the effect on groundwater be
considered, that the Air Force here did not even consider at all the effect on groundwater,
and thus that this is a departure from a mandatory requirement. However, this is the first
time that OSI has made this argument. "This circuit and the former Fifth Circuit have
consistently held that a court will not consider on appeal for the first time a question that
requires development of factual issues." Blue Cross and Blue Shield of Ala. v. Weitz, 913
F.2d 1544, 1550 (11th Cir. 1990). Because this is a factual question not developed below,
we decline to consider it. Moreover, there is no allegation or evidence that the Air Force
never even considered the effect on groundwater.
11
Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273.
Because the decisions involving the Air Force landfills are subject to the
discretionary function exception, we affirm the district court's dismissal of the
FTCA claims for lack of jurisdiction.
B. The Summary Judgment of the RCRA and CERCLA Claims
OSI also appeals the summary judgment granted to the government on the
RCRA and CERCLA claims. OSI contends that the current remediation is
inadequate because it fails to address soil contamination, and that the government
violated RCRA by failing to obtain proper permits for the disposal of hazardous
waste, arguing that solid waste permits are insufficient to cover hazardous waste.
OSI makes the additional claim that it is entitled to reimbursement under CERCLA
for response costs incurred in analyzing the extent of the contamination. The
government responds that provisions of CERCLA bar the RCRA claims in this
case, and that OSI's response costs were unnecessary and are not recoverable under
CERCLA.
These claims raise complex issues, involving a remedial plan whose final
form is outside the instant record on appeal. To fully explore the issues involved,
we would probably require considerable supplementation of the record and
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additional briefing. In addition, the district court's order which granted summary
judgment provides us an inadequate indication of the views of the district court,
significantly hampering appellate review. The order makes no specific factual or
legal findings, merely stating instead that the court was in agreement with the
government's jurisdictional and substantive arguments pertaining to the RCRA and
CERCLA claims. Our review would be greatly facilitated by a comprehensive
analysis by the district court of the relevant facts as to which there is no genuine
dispute and by a comprehensive analysis of the legal issues (thus facilitating a
determination of whether there are factual issues in dispute and whether they are
material). For these several reasons, we vacate the summary judgment order and
remand for further consideration.5
III. CONCLUSION
Because the decisions at issue here concerning the military landfills are a
discretionary function, subject to the exception contained in 28 U.S.C. § 2680, we
AFFIRM the dismissal of OSI's tort claims brought pursuant to the FTCA. We
5
We are satisfied that the district court will want to permit the record to be
supplemented with respect to the factual issue of whether or not the ongoing remedial
action affects or embraces both groundwater and soil contamination. Whether the court
wishes to permit further development of the record with respect to other areas is, of
course, within its broad discretion.
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VACATE and REMAND for further consideration the summary judgment of OSI's
RCRA and CERCLA claims.
AFFIRMED IN PART; VACATED AND REMANDED IN PART6
6
All pending motions are denied.
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