CA1: First makes new law on Discretionary Function exception to FTCA

Abreu v. US, No. 05-1889 (11/14/06), affirms the dismissal of a “Vieques” FTCA case.  (Vieques, if you recall is an island off Puerto Rico that the Navy uses a testing range, has arouse much political ire.)  In this case, the plaintiffs “alleged that the Navy’s past military exercises and waste disposal activities at .. Vieques... exposed them to hazardous substances such as Agent Orange, depleted uranium, napalm, and other ordinance with explosive components, as well as harmful noise pollution.” 

While the First circuit predictably (and probably unnecessarily) muddles “jurisdiction” and “sovereign immunity” (they are different concepts, y’know), it eventually gets to the meat of the matter:

sovereign immunity is not waived for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

28 U.S.C. § 2680(a).

Footnote 3 of the opinion is damn strange, however.  He writes:

The Supreme Court’s recent decision in Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1245 (2006), confirms that dismissal for lack of subject matter jurisdiction is appropriate “[i]f the Legislature clearly states that a threshold statute’s scope shall count as jurisdictional.”

But, he seems to take the SCOTUS’s decision out of context. The full text of that passage is this:

If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.

And guess what? There the discretionary-function language isn't jurisdictional.  Why did he take this out of context?  Even if it did speak in jurisdiction terms, Dyk doesn't cite them.

The First, to its credit doesn’t end the inquiry there.  It notes that the “discretionary function” exception to the FTCA doesn’t apply if the government is nevertheless violating a federal law.  Applying Berkovitz v. United States, 486 U.S. 531 (1988) and United States v. Gaubert, 499 U.S. 315 (1991), the court nevertheless concludes that because the Navy’s authority to do Navy-like things does not come from a statute (actually I think it does) or a regulatory scheme, and “military statutes likely cannot be cabined by the dictates of the regulatory statutes,” the exceptions that the Supreme Court carved out to the Discretionary-Function immunity exception don’t apply.  And, to make it perfectly clear that the First is making new law (or being “judicially active”), the First rams it home with this sentence, “We also perceive that there is a particularly strong argument for limiting the rule of Gaubert where the exercise of military authority is involved, in view of the numerous cases cautioning the courts to avoid interfering with the exercise of discretionary military authority.”  Strangely, the best that the Court can do to support that proposition is cite  United States v. Shearer, 473 U.S. 52 (1985), which, as we all know is a Feres case brought on behalf of a dead soldier.

But, the First has a better, less deferential argument:

The FTCA would become a medium for enforcing the entire regulatory scheme, including the discretionary decisions of the regulatory agency, an eventuality that Congress likely did not contemplate when it enacted the FTCA.

Outside the FTCA, the First rejects the Clean Water Act (“CWA”), 33 U.S.C. § 1251-1387 (2000) because Circuit caselaw indicates that the Navy still had a permit to do what they were doing, and Resource Conservation and Recovery Act, 42 U.S.C. § 6901, because to give anyone any relief would appear to be contradicting the policies outlined above, and “Imposing liability under the FTCA [for RCRA violations] because of the failure of a federal employee to comply with a mandatory directive is not permissible if the imposition of such liability on a regulated entity would undermine the purposes of the regulatory statute creating the mandatory directive.”  Then, the First throws out a bunch of the usual sovereign immunity catchphrases without much analysis and sort of concludes:

We think that allowing the recovery of damages in a FTCA suit, based on the violation of a mandatory permitting requirement under RCRA, would undermine the intent of Congress to preclude compensatory damages awards for RCRA violations.

At long last, the Plaintiffs Noise Control Act (“NCA”), 42 U.S.C. § 4901-4918 (2000) claims are dismissed because of an exception in the statute for military weaponry.