Prologue — Snyder v. United States (No. 08-894)

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R O8 894 JAN i 2009

In Uh pOFFICE OF THE CLE"iK

Supreme Court Of Che Aniled Stales

DONAL MCLEAN SNYDER, II];

DONAL MCLEAN SNYDER, JR.; PAM SNYDER,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

+

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FoR THE FIFTH CIRCUIT

on 1B preset raensgeneeneca:

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX:

¢

William L. Guice III

Counsel of Record

RUSHING & GUICE, P.L.L.C.

Post Office Box 1925

Biloxi, Mississippi 39533

604 Porter Avenue

Ocean Springs, Mississippi 39564

228) 374-2313

Counsel for Petitioners

THRE LEX GROUPS e 1750 K Street N.W. e Suite 475

(202) 955-0001 @ (S00) 815-3791 @ Fan. (202) 955

» @ Washington, DC 20006

»- 0022 ewww thelexgroupde com

QUESTIONS PRESENTED

QUESTION 1:

Whether military regulations prohibiting disposal of

waste so as not to contaminate water supplies are

specific and mandatory such that the discretionary

function exception does not apply to the Federal Tort

Claims Act?

QUESTION 2:

Must there be a finding on the record that the second

tier analysis of Berkovitz v. United States, 486 U.S.

531, 536 (1988) was considered before’ the

discretionary function exception can apply?

QUESTION 3:

Is the disposal of toxic industrial waste commonly

used in commercial applications the type of conduct

that the discretionary function exception was

designed to shield?

11

PARTIES TO THE PROCEEDINGS

Petitioners Donal Mclean Snyder, III; Donal

Mclean Snyder, Jr; and Pam Snyder were Plaintiff-

Appellants in the Fifth Circuit Court. of Appeals.

The United States Government was the

Detendant-Appellee in the Fifth Circuit Court of

Appeals. There are no other parties.

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDINGS .,.............00cseenee 11

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STATUTORY AND REGULATORY

PTO) V SES EIN COE Y MRD osieiensecaccese tes corevcvsnavedseseesvs 2

DISCRETIONARY FUNCTION ............. ccc: 2

SPECIFIC REGULATION VIOLATED .......... 3

EEL RIS oss ancteuivayrecore eee 3

REASON FOR GRANTING THE PETITION ........... 4

QUESTION 1: WHETHER MILITARY

REGULATIONS PROHIBITING DISPOSAL

OF WASTE SO AS NOT

TO

CONTAMINATE WATER SUPPLIES

ARE SPECIFIC AND MANDATORY

SUCH THAT THE DISCRETIONARY

FUNCTION EXCEPTION DOES NOT

APPLY TO THE FEDERAL

Cane Pike © Sissi chaestscene fees

TORT

~

1V

QUESTION 2: MUST THERE BE A

FINDING ON THE RECORD THAT

THE SECOND TIER ANALYSIS OF

BERKOVITZ V. UNITED STATES, 486

U.S. 531, 536 (1988) WAS CONSIDERED

BEFORE THE DISCRETIONARY

FUNCTION EXCEPTION CAN APPLY?.....15

QUESTION _ 3: IS THE DISPOSAL

OF COMMON INDUSTRIAL WASTE

THE TYPE OF CONDUCT THAT

THE DISCRETIONARY FUNCTION

EXCEPTION WAS DESIGNED ‘TO

WOIIET. aa. si vanacec de viansnsckacuiediaeieneqeaberansseccuameal 17

CONCLUSION ............ PN ere ee et ere 21

APPENDIX:

Opinion of

The United States Court of Appeals

For the Fifth Circuit

entered October 16, 2008 ..........0.0...0... la

Order and Reasons Dismissing Case for

Lack of Subject Matter Jurisdiction of

Che United States District Court

For the Southern District of Mississippi

entered August 1, 2007 ............... ee

Judgment of

The United States Court of Appeals

Kor the Fifth Circuit

eritered December 10, 2008 ............... loa

Exhibit A to Plaintiffs Motion for

Summary Judgment on the Applicability

of Discretionary Function Exception to

Waiver of Sovereign Immunity Under the

Federal Tort Claims Act (FTCA)

entered March 23, 2007:

A. Excerpt of Chapter 8, Section

15, Garbage and _ Refuse

Disposal of the Manual of

Naval Preventive Medicine

Published by the Department

of the Navy, Bureau of

Medicine and Surgery

S&L: ye 17a

Excerpt of United States’ Memorandum in

Support of Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment

entered March 26, 2007..................... 19a

Vi

TABLE OF AUTHORITIES

Page(s)

CASES

Aragon v. United States,

146 F.3d 819 (10* Cir. 1998) ................. passim

Baird v. United States,

653 F.2d 437 (10° Cir. 1981).............. PRAT ee

Berkouvitz v. United States,

486 U.S. 531, 108 S. Ct. 1954,

100 L. Ed. 2d 531 (1988), on remand to,

us Oyun Gya is” 2e Ab: . |.) eee passim

C.R.S. by D.B.S. v. United States,

Be ee FP Ct EAD, DISD ccncsivcccascocesctvecccececcds 'e)

Chute v. United States,

Be ge Oe SS) 13

Clark v. United States,

660 F. Supp. 1164

(W.D. Wash. 1987), affd,

856 F.2d 1433 (9t» Cir, 1988) ............... 6, 10, 11

Clark v. United States.

Se ee Oh TO OP, POPIED oiovccakccsccccacccavaveescass 5

Compagnie Me vittme Marfret, et al v.

San Juan Bay Pilots Corporation, et al,

932 D. Supp. 2d 369

(Puerto Rico District Court 2008) 12,13

Domme v. United States,

OE RS Bee Se hs ke a 6)?

—

—

Frey v. EPA,

270 F.3d 1129 (7 Cir. 2001) ................ ee ae

Gotha v. United States,

EEE Piece Fe Cee CAG. DOE hic icvccviccaconccvcsccccvedecc 8

Indian Towing Co v. United States,

Se Ee ee I oe oi cas cssevnskcesensevececeacs 12. is

Irwin v. Dep’t of Veterans Affairs,

re ah aaaes 5

Jackson v. United States,

376 U.S. 503, 84S. Ct. 869 (1964)...................5

Loughlin v. United States,

3903 F.Sd 155 (0.0. Civ. 2O04) ....cccccccccccccs 18, 19

Macharia v. United States,

$34 F.3d 6] (B.C. Civ. ZOOS) .......cccccccccocscccccsscs 7

Miller v. United States,

CRB Bb Ry oe Os ae ho.) 17

Miller v. United States,

710 F.3d 656 (10° Cir. 1988)........ 5

OST, Inc. v. United States,

285 F.8d 947 (11 Cir. 2002) ......................05- 20

Ross v. United States,

129 Fed. Appx. 449 (10° Cir. 2005)............... 14

Starrett v. United States

as FF ek Feseee Cee Claw, BEGGS acc covcicceccccccsccccces: 1O

United States v. Cook County,

Tg ee Bee Be eG et: S| rey

Vill

United States v. Gaubert,

499 U.S. 315, 111 S. Ct. 1267,

Cee Bee My Oe Ie CRIED viicssssscciiccssvccessss passim

United States v. Varig Airlines,

ET CN ascrscanicccsvasevccocdaniveneiencans 7,16

STATUTES

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i 2s cnh vduaanssauboatonnwvvsavedabereaveds 2

od , secksapvesivesivdscclenicaniynRla 2

TE i og dic sn ds savsanscdccvesoevivasinsanetensines 2

ee I 2. yy sins Scsavnnsustornedeucpacnanans 2, 3, 5

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OTHER AUTHORITIES

American Heritage Dictionary .................... Reakeeoieuh 9

Merriam-Webster Dictionary .............cccccccssccsscssccceeees )

(Chapter 8, Section 15,

Garbage and Refuse Disposal of the

Manual of Naval Preventive Medicine

Published by the Department of the

Navy, Bureau of Medicine and Surgery,

TTS > SSE De eer eC AMR ep TT

INTRODUCTION

This case gives the Court an opportunity to

resolve an injustice of significant national impact.

Marine Corps Base Camp Lejeune, which over the

relevant period of time affected marines and their

families from across the nation, contained polluted

water wells. The government has admitted the

polluting effects of the contamination which existed

for more than forty years, and which contamination

was present in the water wells at the training base

for more than twenty years. Pet. App. 20a. By

reasonable estimates, in excess of 1000 marines and

their famihes have suffered from exposure to the

contaminants contained in the drinking water

supplicd by the government. Appallingly, the

government has contested this matter on a

jurisdictional basis under the discretionary function

exception, after publicly declaring their error and

fault. The correctness of the government, in taking

advantage of veterans and their loved ones, by

admitting liability only to avoid providing relief to

those injured is at issue in- this” matter.

Significantly, there are two splits between the

Circuits. First, there is a conflict over the

determination of whether the discretionary function

exception at issue in this matter is jurisdictional as

the 5 Circuit has determined. Second, there is a

conflict between the Ninth and Tenth Circuits as to

whether an agency manual creates mandatory

obligations such that the manual overcomes the

discretionary function exception. The opportunity to

provide relief for those service members and their

spouses and children exists in this case, as although

Petitioners are but one family the decision of this

Court will alter the fate of hundreds of other famulies

with pending suits and Federal Tort Claims Act

Notices.

OPINIONS BELOW

The Fifth Circuit Court of Appeal’s opinion is

unreported and reprinted at Pet. App. la-2a.

JURISDICTION

The Fifth Circuit Court of Appeals entered its

opinion on October 16, 2008. Pet. App. la-2a. This

Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

DISCRETIONARY FUNCTION

The Federal ‘ort Claims Act, 28 U.S.C.A. §8§

1346(b), 2671-2680, waiving the immunity of the

United States from suit, contains several specific

exceptions precluding recovery on certain tort

claims. The “discretionary function or duty’

exception contained in 28 U.S.C.A. § 2680(a)

excludes from the Act's application any claim based

on the exercise or performance or the failure to

exercise or perform a discretionary function or duty

on the part of a federal agency or government

employee, regardless of whether the discretion 1s

abused

The discretionary function located in 28

LLS.CLA. § 2Z680(a) specifically states

——

(a) Any claim hased 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.

SPECIFIC REGULATION VIOLATED

The Manual of Naval Preventive- Medicine

specifically states that “refuse, in any form,

should not be disposed of where it may pollute

surface or underground waters which are

eventually to be used as drinking water.” See

Chapter 8, Section 15, Garbage and Refuse Disposal

of the Manual of Naval Preventive Medicine

Published by the Department of the Navy, Bureau of

Medicine and Surgery, June 1957. Pet. App. 17a-

18a.

STATEMENT

The case of Donal Snyder, et al. is one of many

cases filed by attorneys around the country

concerning toxic water pollution at Marine Corps

Jase (MCB) Camp Lejeune, but is the only case of

this kind handled by Petitioners’ attorneys. All eves

are on this Court’s decision in this matter because as

the first in a long line of claims it affects hundreds of

families with a multitude of medical issues related

to Camp Lejeune contamination.

Donal McLean Snyder, Jr. and his wife Pam

were stationed at Marine Corps Base Camp Lejeune,

North Carolina (“Camp Lejeune”) during the early

1970s while Donal McLean Snyder, Jr. was a young

first Lieutenant in the United States Marine Corps.

During this time, Pam became pregnant with their

son, Donal Snyder, III, who was born on June 8,

1971. As a direct result of pouring cleaning solvents,

primarily trichloroethylene (TCE), onto the ground

or into barrels which were buried in the ground,

the water systems of Camp Lejeune became

contaminated. The contaminated water fed wells on

the base which supplied drinking water which was

consumed by the Snyder family and thousands of

other military families. Donal Snyder, III was born

with a congenital heart defect caused by his

intrauterine and early childhood exposure to TCE

which culminated in the replacement of one of his

heart valves, permanent monitoring, and is now

facing a second open heart surgery.

REASON FOR GRANTING THE PETITION

The United States negligently contaminated

the drinking wells that served MCB Camp Lejcune

resulting in adverse health effects to residents in

violation of the Government's duty to protect the

drinking wells from contamination, and further in

violation of the Government's own policy and

regulations, and such contamination is therefore not

protected by the discretionary function exception.

The Fifth Circuit affirmed the District Court

ruling that jurisdiction did not exist as_ the

government actions in polluting the drinking water

at Camp Lejeune was protected by the discretionary

function exception to the Federal Tort Claims Act, 28

U.S.C.A. § 2680(a).

The Seventh Circuit has suggested that the

treatment of the discretionary function exception as

a jurisdictional prerequisite is not correct.! This is

in direct contradiction to the ruling of the Tenth

Circuit.2,. The jurisdictional issue is in conflict

between the circuits’, and as the Fifth Circuit has

ruled that the jurisdictional question must be

resolved before the Petitioners can be afforded relief,

hundreds of veterans and their families are without

recourse after the government has admitted to

polluting the drinking water for decades at one of

the military's largest training institutions.

The ruling of the Fifth Circuit was in error as

the discretionary function did not apply as there was

a specific regulation in place which was designed to

protect the Petitioners from the damages which they

1Clark v. U.S... 326 F.3d 911, 913 (7 Cir. 2003), citing

Frey v. EPA, 270 F.3d 1129, 1135 (7 Cir. 2001); United States

v. Cook County. 167 F.3d 381, 388-89 (7 Cir. 1999): Irwin v.

Dept of Veterans Affairs, 498 U.S. 89, 93-95 (1990).

2 Miller v. United States, 710 F.3d 656, 662 (10% Cir.

1983)(quoting Barrd ov. United States. 653 F.2d 437, 440 (10™

Cir. 1981)

Resolution of the contiict between two circeults ts the

province of the United States Supreme Court. Jackson v. ULS.

376 U.S. 563, 81S. Ct. 869 (1961)

have suffered. Even if the Navy Manual at issue

was held not to he specific, there is a_ conflict

between the Ninth and Tenth Circuits as to whether

an agency manual creates mandatory obligations

such that the manual overcomes the discretionary

function exception. 4

The District Court and the Fifth Circuit

determined that the Navy Manual at question did

not contain a specific, mandatory provision. That 1s

where their analysis stopped. The complete analysis

required in discretionary function cases was neither

apphed by the District Court nor the Fifth Circuit,

and as they have not compled with the tests set

forth by this Court, Petitioners request that this

matter be remanded for a Berkovitz second prong

analysis® and finding on the record of whether

burying and pouring out degreaser onto the ground

so that it contaminates drinking water is the sort. of

choice that the discretionary function was designed

to shield.

The nature of the decision of the soldiers at

Camp Lejeune in pouring degreaser on the ground is

‘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). affd 856

F.2d 1433 (9° Cir. 1988) (affirmed after the Berkovitz, 486 U.S.

531 (1988), ruling of this Court) with Aragon v. U.S... 146 F.3d

$19 (10' Cir. 1998) (rejecting the Clark decision and applying

the discretionary function exception to Ai Force decisions

governed by manuals)

° Berkovitz by Berkovitz uv. U.S., 486 U.S. 531, 108 S. Ct.

1994, 100 L. Ed. 2d 531 (1988), on remand to, 858 F.2d 122 (3d

Cir. 1988), and later upheld in U.S. 6. Gaubert, 499 U.S. 315,

1117S. (Mt. 1267, 113 L Fd 2d 335 (1991

not one that implicates a policy judgment® and

therefore the actions of the government did not

include the type of conduct that the discretionary

function was designed to shield.? The government

has admitted that the contamination can be

attributed to soldiers pouring the contaminating

TCE on the ground after using the chemical for

cleaning, as well as the large scale burying of barrels

of TCE. Pet. App. 20a. These soldiers pouring out

used degreaser were clearly not authorized nor their

decisions susceptible to matters of government

policy, and as such actions were negligent, the

discretionary function should not bar United States

hability for such contamination, even if the large

scale burying of contaminants should be held to be

protected. Petitioners would plead, however, that

the contamination of thousands of military families

by the very government they serve must not be an

exception to the Tort Claims Act.

QUESTION : WHETHER MILITARY

REGULATIONS PROHIBITING DISPOSAL OF

WASTE SO AS NOT TO CONTAMINATE WATER

SUPPLIES ARE SPECIFIC AND MANDATORY

SUCH THAT THE DISCRETIONARY FUNCTION

EXCEPTION DOES NOT APPLY TO THE

FEDERAL TORT CLAIMS ACT?

The question before the Court is whether the

Fifth Circuit erred in affirming that claims brought

by Petitioners against the federal government for

6 Macharta v. United States, 331 F.3d 61, 6&8 (D.C. Cir

2003).

United States cv. Varig Atrlines, 467 US. 797 (1984)

poisoning the water at MCB Camp Lejeune, a major

military housing complex, resulting in untold

numbers of injuries and deaths to residents, and

specifically two open heart surgeries and lifetime

monitoring on Donal Snyder III, son of a Marine

officer stationed at MCB Camp Lejeune, are

barred by the discretionary function exception. [In

reviewing such a question, the Court must consider

whether the challenged action is actually a “matter

of choice for the acting employee.” Berkovitz v.

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

requires two prongs of analysis. The first prong, to

be considered in this que :tion, asks whether a

federal statute, regulation or policy “specifically

prescribes a course of action” for the federal agency

to follow, id.; 1f so, the actor has no lawful choice but

to follow the directive, and as such, no discretionary

judgment is implicated by his ultimate obedience or

disobedience. See United States v. Gaubert, 499 U.S.

315, 324 (1991)(‘If the employee violates the

mandatory regulation, there will be no shelter from

liability because there is no room for choice and the

action will be contrary to policy.’). Only those

regulations “that give no options to a government

agency take away the exercise of discretion.” Gotha

v. United States, 115 F.3d 176, 181 (3d Cir. 1997):

see also C.R.S. by D.B.S. v. United States, 11 F.3d

791, 800-801 (8t® Cir. 1993)(no lability where those

charged with inplementing a mandatory

requirement were given wide latitude regarding its

execution). The next prong requires the Court to

determine whether the choice made 1s of the sort

that the discretionary function was designed to

shield, as explained further in Question 3.

oe)

The district court in its Memorandum Order

focused on the fact that there was not a “specific

directive” on how to dispose of the carcinogenic and

toxic chemicals at issue in this matter. The Fifth

Circuit made no further finding. However, the

Navy’s own regulations in The Manual of Naval

Preventive Medicine specifically states that refuse,

in any form, should not be disposed of where it

may pollute surface or underground waters

which are eventually to be used as drinking

water.” See Chapter 8, Section 15, Garbage and

Refuse Disposal of the Manual of Naval Preventive

Medicine Published by the Department of the Navy,

Bureau of Medicine and Surgery, June 1957. Pet.

App. 17a-18a.8 This Manual prescribed a specific

course of action that the Corps failed to follow. The

United States Marine Corps is administered by the

Department of the Navy, which is led by the

Secretary of the Navy (SECNAYV), thereby requiring

the United States Marine Corps to follow directives

of the United States Navy. As a directive was in

place, with which Respondent failed to comply, the

discretionary function did not apply and the District

Court erred.

Tne Ninth Circuit held that the term

“secondary treatment’ was a sufficiently specific

directive in an Executive Order which required

secondary treatment at all new facilities of all

sovernment wastes except cooling water and _ fish

* Refuse is not specifically defined by the Manual, but is

defined as the “worthless or useless part of something” by

Merriam-Webster Dietionary and the American Heritage

Dictionary

10

hatchery effluents. Starrett vu. United States, 847

F.2d 539, 542 (9'' Cir. 1988). If an undefined term

such as “secondary treatment” is_ sufficiently

specific, it seems axiomatic that a clear directive

such as the one found in the Navy Manual not to

dispose of waste where it may pollute ground water

is a binding specific directive. !°

To further muddy the waters, there appears to

be confusion among the Circuit Courts as to how to

apply this Court’s rulings as to military manuals

governing waste disposal. Clark v. United States,

856 F.3d 1433 (9th Cir. 1988)!'! in affirming the

District Court ruling that the manuals create

a mandatory obligation that overcomes the

discretionary function exception reached the opposite

conclusion of Aragon v. United States, 146 F.3d 819

(10¢* Cir. 1998). The manual at issue in the above

cases contained a specific acknowledgment that it

® Petitioners acknowledge that although the Executive

Order did not offer a defimtion, the Starrett Court found a

definition of secondary treatment in the Clean Water Act, 33

U.S.C. § 1311.

‘0 The Plaintiffs in Starrett also relied on the Navy's

1957 Manual on Navai Preventive Medicine (written by Navy

Bureau of Medicine and Surgery). The Starrett Court stated

that because it found the @xecutive Order to be a specific and

mandatory directive to the Navy to prove secondary treatment

for wastes and to prevent their being discharged if the

constitute a health hazard. it did not consider the Navy

Manual

Clark does not precede the Berkovite ruling as the

Ninth Circuit affirmed the District Court after this Court's

opinion in Berkovttz was issued

11

was “intended for guidance” and “because of the

varied nature of industrial problems, principles

rather than practices are emphasized.” Id. at 824-

825. Clearly under the 9h Circuit Clark decision the

directive of the Navy Manual not to dispose of waste

where it may pollute ground water would be seen as

a mandatory obligation sufficient to bind the

vovernment.

There is an admitted difficulty by iower courts

in applying the discretionary function exception,

which explains the conflict between the Ninth and

Tenth Circuits. Circuit Judge Henry in a concurring

opinion in Domme v. U.S., 61 F.3d 787 (10% Cir.

1995) in explaining the difficulty in determining the

existence of the exception stated: “.... The Federal

Tort Claims Act was a response to a growing

revelation that the king and his agents could clearly

do wrong..... Perhaps because sovereign immunity Is

inconsistent with American political institutions, the

discretionary function cases remain difficult to

classify and reconcile.” The confusion among the

Circuits, which has limited the relief for a dedicated

veteran and his family, and which holds the relief for

hundreds of other claims, creates an issue which

only this Court can resolve.

The United States violated a rule designed to

prohibit just the sort of grave physical harm caused

to the Petitioners. The government should be hable

for its negligence as a binding directive against

ground water pollution existed, which necessitates

that the discretionary function exception cannot

apply.

12

The decision in Indian Towing Co v. United

States, 350 U.S. 61, 76 (1955), which although

questioned in lower court decisions!2, was _ not

renounced by this Court in the Berkovitz and

Gaubert!® decisions, also demonstrates the

appropriate scope of the discretionary function

exception. Although, Petitioners acknowledge that

the government did not claim the benefit of the

discretionary function exception, it is applicable in

such cases, as can be demonstrated by this Court's

inclusion of same in any thorough review of the

discretionary function. The Plaintiff in that case

sued the Government for failing to maintain a

lighthouse in good working order causing the

grounding of a boat. This Court held that “the Coast

Guard need not undertake the lighthouse service.

But once it exercised its discretion to operate a

light...and engendered reliance on the guidance

afforded by the light, it was obligated to use due care

to make certain that the lght was kept in good

working order.” Indian Towing, 350 U.S. at 69.

This Court added that, “if the light did become

12 See Compagnie Maritime Marfret, et al v. San Juan

Bay Pilots Corporation, et al, 532 1). Supp. 2d 369, 390 (Puerto

Rico District Court 2008) for an overview of cases in the First

Circuit which claim that Indian Towing has been undercut by

this Court.

3“The United States was held lable, not because the

negligence occurred at the operational level but because

making sure the Ilhght was operational ‘did not involve any

permissible exercise of pohcy judgment” once it exercised its

discretion to operate a lghthouse. United States vu. CGraubert,

499 U.S. 315, 326 (1990). Berkovitz v. United States, 486 US

531 (1988).

extinguished, then the Coast Guard was further

obligated to use due care to discover this fact and to

repair the light or give warning it was. not

functioning.” Id.

The First Circuit has held that the ruling of

this Court is that “the government, just as any

private person who undertakes to warn the public of

danger and thereby induces reliance, must not

worsen the position of those who have come to rely

on the service by carelessly omitting it.” Chute v.

United States, 610 F.2d 7, 18-14 (1st Cir. 1979).

Indian Towing is still relied on for the principle that

the “government must not mislead, and must not

induce reliance upon a belief that it is providing

something, which, in fact, it is not providing.”

Compagnie Maritime, 532 D. Supp. 2d at 391, citing

Chute, 610 F. 2d at 14.

In the present. case, the exercise of judgment

and discretion was taken at the time of the

enactment of policy against ground water

contamination and protection of military drinking

water supply and the promulgation of the

Department of Navy regulations preventing disposal

of waste in such a way that would pollute drinking

water. Once the exercise of judgment was taken, the

violation of that rule was an act of negligence and/or

neghgence per se. Therefore, the government's

actions are not subject to the discretionary function.

The cases rehed upon by the United States in

the District Court and on appeal to the Circuit

Court, specifically Aragon v. United States, 146

14

F.3d 819 (10 Cir. 1998) and Ross v. United States,

129 Fed. Appx. 449 (10° Cir. 2005), may be

distinguished from the case at bar. Both of these

cases do deal with TCE contamination, but neither

has regulations as directly on point as_ those

concerning Camp Lejeune and contamination of

drinking water. In Poss, the plaintiffs conceded that

no such statute or regulation was involved, and

therefore the government's actions were considered

discretionary under the first step of the Berkovitz

test. In Aragon, the Air Force manual relied upon by

the plaintiffs, was intended only for guidance and

not as regulations to be followed by the agency. The

Court in Aragon relied on Air Force Manual 85-14

and its specific statement that it is “intended for

guidance” and “|blecause of the varned nature of

industrial problems, principles rather than practices

are emphasized.” This express qualification weighed

heavily against the Court ruling the Manual

prescribed mandatory directives for the Air Force to

follow. Aragon, supra. No such statement is found

in the Navy Regulation at issue in this matter.

The United States Department of the Navy

Manual of Naval Preventive Medicine, Chapter 8,

Section 15, which specifically states that “refuse, in

any form, should_not be disposed of where it

may pollute surface or underground waters

which are eventually to be used _as drinking

water” is a clear directive which rises above

the mere guidance in Aragon and supplies the

regulation lacking in Ross. The Manual specifically

acknowledges that “in military) experience, the

hazards to health associated with refuse disposal are

15

frequently of greater importance than is the case in

the civilian community.” See Chapter 8, Section 2,

Garbage and Refuse Disposal of the Manual of Naval

Preventive Medicine Published by the Department of

the Navy, Bureau of Medicine and Surgery, June

1957. Pet. App. 17a-18a. The Petitioners were

members of the class designed to be protected by the

Manual regulations. The clear directive of the

Appellee was to protect the water source on military

bases such as MCB Camp Lejeune, and thereby

protect Marines and their dependents who would be

using that water source. As a clear directive existed

by virtue of the Navy regulation above, the

government had “no rightful option but to adhere to

the directive.” Aragon at 823-24. The governing

regulations in this case prescribe a course of action,

and the exercise of judgment and discretion was

taken at the time of the enactment of such policy and

regulation. Therefore, the government's conduct is

not subject to the discretionary function, and the

Court of Appeals erred in affirming the District

Court.

QUESTION 2: MUST THERE BE A FINDING ON

THE RECORD THAT THE SECOND TIER

ANALYSIS OF BERKOVITZ V. UNITED STATES,

486 U.S. 531, 5386 (1988) WAS CONSIDEREI)

BEFORE THE DISCRETIONARY FUNCTION

EXCEPTION CAN APPLY”

Petitioners believe there is no need to proceed

to this second tier as the governing regulations in

this case prescribed a course of action, and the

exercise of judgment and discretion was taken at the

time of the creation of the policy to prevent

16

groundwater pollution and the regulation enacted to

protect such groundwater; thus the government

should not be protected from this suit by the

Petitioners. However, if the decision under Question

1 results in a determination that the Fifth Circuit

did not err in affirming the District Court’s ruling

that the First Prong analysis results in a

determination that there was an absence of a

mandatory directive at Camp Lejeune, then a

Second Prong Analysis must be commenced.

With the absence of a mandatory directive,

and therefore the presence of some degree of

judgment, the second prong requires the Court to

determine whether the choice made is of the sort

that the discretionary function exception was

designed to shield. This Court has observed that in

enacting the exception, “Congress wished 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.” U/nited States v. Varig Atrlines,

467 U.S. 7°87, 814 (1984). As such, the exception

does not protect all governmental actions and

decisions that include an clement of choice. Instead,

shields only those that are “susceptible to policy

analysis’ or based on “considerations of public

policy.” U.S. v. Gaubert, 499 U.S. 315, 111 S. Ct.

1267, 113 L. Ed. 2d 335 (U.S. 1991).

The District Court failed to apply the Second

Prong of the Berkovit=> analvsis to determine

whether the discretion exercised was of the type that

the exception wus designed to shield—1.e., choices

that are grounded in social, economic, and political

policy. Jd. Without the District Court having

addressed the second tier policy analysis, there is a

presumption that there is a policy in Petitioners’

favor. Once a discretionary function is involved, the

second tier test must be evaluated, and the failure of

the District Court to apply the second ticr analysis of

Berkovitz was in error, and the Court of Appeals

erred in affirming such decision.

QUESTION 38: IS THE DISPOSAL OF COMMON

INDUSTRIAL WASTE THE TYPE OF CONDUCT

THAT THE DISCRETIONARY FUNCTION

EXCEPTION WAS DESIGNED TO SHIELD”

Although, Petitioners assert that the conduct

of the government, in polluting the ground water at

Camp Lejeune, was not discretionary, and that the

discretionary act, if any, was in the promulgation of

the 1957 Navy regulation, if the Court finds that the

challenged conduct was “discretionary,” then a

second tier analysis must be performed to determine

whether the discretion ez:ercised was of the type that

the exception was designed to shield-i.e., choices that

are grounded in social, economic, and political policy.

Gaubert, 499 U.S. 315, 111 &. Ct. 1267, 113 L. Ed. 2d

335; Miller v. U.S... 1638 F.3d at 594 (“The decision

need not be actually grounded = in _— policy

considerations, but must be, by its nature,

susceptible to a policy analysis’).

The Marine Corps Was not required to

exercise its discretion with respect to how to avoid

contamination of the Camp Lejeune water supply

Burving large quantities of solvent chemicals on

18

base grounds which could contaminate the drinking

supply of the base is not subject to a policy analysis,

but 1s a clear violation of the proscribed action under

the government's own regulation. The Manual of

Naval Preventive Medicine specifically states that

disposal of refuse “is of medical importance because

of the associated hazards to health.” Additionally

the Manual acknowledged that refuse produces

disease by the toxic chemicals which it may contain,

and goes on to state the policy intention to prevent

pollution as “rivers, lakes, and other sources of water

may be so heavily polluted by refuse that treatment

of the water to make it safe for drinking becomes

difficult and costly.” See Chapter 8, Section 15,

Garbage and Refuse Disposal of the Manual of Naval

Preventive Medicine Published by the Department of

the Navy, Bureau of Medicine and Surgery, June

1957. Pet. App. 17a-18a.

The protected conduct was in making the

policy to protect groundwater and promulgating

regulations to enforce such policy.

In Loughlin v. U.LS., 3898 F.8d 154 (D.C. Cir.

2004), claims arising from the ypovernment’s

allegedly negligent handling and = disposal of

munitions in a District of Columbia neighborhood

during the World War I era were barred. Loughlin

may be distinguished from the case at bar because

in Loughlin the claims were based on disposal

of munitions, clearly a military and government

policy issue. The decision on the disposal of

contaminants and refuse do not rise to the level of

public policy, but rather are issues dealt with by

19

landfills and waste removal companies on a daily

basis. !4

Although Petitioners beheve that Aragon,

supra, can be distinguished factually, this Court

should also take notice of the Tenth Circuit's ruling

that groundwater that serves the families of military

personnel can freely and intentionally be polluted by

toxic chemicals on United States’ soil without

consequence to the United States, as long as such

contamination occurs during a time of military

14 Tt should also be noted that the Court reached the

second prong analysis in Loughlin only after determining the

“regulations” at issue were a mere Bulletin and a Manual of

Gas Warfare. The Manual was a “proposed publication and

intended for combat units and not a research and development

facility and the Bulletin was not intended to be a binding

directive but a means of sharing information and was

addressed again to combat units. This is distinguishable from

the Petitioners’ claim as the Navy Manual Regulation at issue

here does not state that it should be used only for guidance. It

is difficult to argue that pollution of ground water by burying

toxic chemicals is a discretionary function when if someone

were to intentionally pollute drinking water it would be a crime

and such pollution is recognized to be a crime today. The

undersigned’s review of 10 U.S.C. § 892, Article 92 of the

Uniform Code of Mbhtary Justice indicates that the

commanding officer at MCB Camp Lejeune could have bcen

subject to appropriate disciplinary action for failure to follow

the Navy Manual in question. Article 92 states that any person

who violates or fails 10 obey any lawful regulation shall be

punished as « court-martial may direct. Further, Rules of

Court Martial 1003 specifies that failure to obey a lawful

regulation may subject you to 2 years confinement 1n a military

prison. Therefore, the pollution of groundwater with toxic

chemicals was not within the discretion of the officers at MCB

Camp Lejeun

20

conflict. The Aragon court held that because the

base in question operated under military “exigencies

during World War II, the Korean conflict, the

Vietnam Conflict and the Cold War” the military

was allowed to place military concerns above

groundwater protection. 146 F.3d 819, 826. The

essence of this argument is that if there is any

military conflict anywhere in the world in which the

United States is involved, the military is free to

pollute the water its soldiers and dependents drink

back home on U.S. soil. This result cannot be

allowed to stand. The offensive nature of the Aragon

result. was affirmed by the Eleventh Circuit, when

that Circuit determined that the military was free to

pollute surrounding wells solely because there were

military concerns. OSI, Inc. v. US, 285 °.3d 947,

953 (11 Cir. 2002). As a dominating world power,

the United States 1s perpetually embroiled in conflict

throughout the world, the military’s function is the

protection of this Country in such conflict by the use

of dedicated voluntary soldiers. ‘The poisoning of

those soldiers on our own soil cannot be allowed to

be weighed against military concerns thousands of

miles away.

It is the Petitioners’ position that the Court of

Appeals erred in failing to apply the second tier

analysis of Berkovitz. However, even if a second tier

analysis was donc, the clear policy of the United

States. as shown in the= standard operating

procedure set forth in the Manual of Naval

Preventive Medicine, in the legislative history of the

FTCA, and the enactment of the SDWA and the

CWA, is to prevent drinking water contamination.

Burying large quantities of solvent chemicals on

2]

base grounds which could contaminate the drinking

supply of the base is not subject to a policy analysis.

The United States negligently contaminated

the drinking wells that served MCB Camp Lejeune

resulting in adverse health effects to residents in

violation of the Government’s duty to protect the

drinking wells from contamination, and further in

violation of the Government's own policy and

regulations, and such contamination is therefore not

protected by the discretionary function exception.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

William L. Guice II]

RUSHING & GUICE, P.L.L.C.

Post Office Box 1925

Biloxt, MS 39533-1925

604 Porter Avenue

Ocean Springs, MS 39564

228/374-2313

Counsel for Petitioners

January 14, 2009

APPENDIX

TABLE OF CONTENTS

Appendix to Petition

Page

Opinion of

The United States Court of Appeals

For the Fifth Circuit

entered Octotier 16, BOGE .........<...<cscccsescesseses

Order and Reasons Dismissing Case for

Lack of Subject Matter Jurisdiction of

The United States District Court

For the Southern District of Mississipp1

@reterec Aviat 1 GG oiicccscceicceccccccssescovescss

Judgment of

The United States Court of Appeals

For the Fifth Circuit

entered December 10, 2008........................-. 16a

Exhibit A to Plaintiffs

Motion for Summary Judgment on the

Applicability of Discretionary Function

Exception to Waiver of Sovereign Immunity

Under the Federal Tort Claims Act (FTCA)

entered March 23, 2007:

A. Excerpt of Chapter 8, Section 15,

Garbage and Refuse Disposal of the

Manual of Naval Preventive Medicine

Published by the Department of the

Navy, Bureau of Medicine and Surgery

GONE TOE biochem

lla

Excerpt of United States Memorandum in

Support of Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment

Sriteree MGIC ZG, BOOT ooiciccccsescccccccccscscccsess 19a

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 07-60671

D.C. DOCKET NO. 1:04-CV-627HSO-JMR

DONAL MCLEAN SNYDER, ITI; DONAL MCLEAN

SNYDER, JR.; PAM SNYDER,

Plaintiffs — Appellants

Vv.

UNITED STATES OF AMERICA,

Defendant — Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:04-cv-627

Before JOLLY, BARKSDALE, and HAYNES, Circuit

Judges.

PER CURIAM:*

The Snyder family appeals the district court's

dismissal for want of subject matter jurisdiction of

their lawsuit against the United States. Premising

jurisdiction on the Federal Tort Claims Act, the

Snyders brought various tort claims against the

United States based upon its alleged misconduct in

disposing of waste at a Marine Corps base in the

* Pursuant to 57 CIR. R. 47.5, the court has determined that

this opinion should not be pubhshed and is not precedent

except under the limited circumstances set forth in 5?! Cir. R.

17 5 j

early 1970s. 28 U.S.C. § 1346(b)(2006) We have

carefully reviewed the parties’ briefs and _ the

pertinent portions of the record. The district judge

entered a thorough and thoughtful opinion styled as

an Order and Reasons Dismissing Case for Lack of

Subject Matter Jurisdiction. Essentially for the

reasons stated by the district court, the judgment of

the district court is AFFIRMED.

FILED: OCTOBER 16, 2008

3a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DiSTRICT OF

MISSISSIPPI

SOUTHERN DIVISION

DONAL McLEAN §

SNYDER, Ti, ET AL. 8 PLAINTIFFS

§

V. § CIVIL NO.

§ 1:04CV627HSO-JMR

§

UNITED STATES §

OF AMERICA § DEPENDANT

ORDER AND REASONS DISMISSING CASE

FOR LACK OF SUBJECT MATTER

JURISDICTION

BEFORE THE COURT is Defendant’s Motion

to Dismiss, or, in the alternative, for Summary

Judgment and Plaintiffs’ Motion for Summary

Judgment on the Applicability of the Discretionary

Function Exception to Waiver of Sovereign

Immunity Under the Federal Tort Claims Act. Both

motions have now been fully briefed and are ripe for

resolution. After due consideration of the

submissions and the relevant law, it is the opinion of

the Court that Plaintiffs’ claims, brought pursuant

to the Federal Tort Claims Act [“FTCA”], specifically

28 U.S.C. §§ 1346(b), 2671-80, are not within the

sovereign immunity waiver of the FTCA; therefore.

this Court lacks subject matter jurisdiction.

Plaintiffs Motion for Summary Judgment must

therefore be denied, the Defendant's Motion to

Dismiss must be granted, and the above captioned

4a

cause should be dismissed pursuant to FED. R. CIV.

P. 12(b)(1).

I. FACTS AND PROCEDURAL HISTORY

The facts of this case originate during the

time when Donal McLean Snyder, Jr., served as a

first Lieutenant in the United States Marine Corps.

Snyder and his wife Pam were stationed at Camp

LeJeune, North Carolina, from March through

December of 1970. At that time, the Snyder family

was relocated. A son, Donal McLean Snyder, III, was

born the following January, 1971. Donal IIT was born

with a congenital heart defect, known as bicuspid

aortic valve [“BAV”]. Extensive medical treatment

culminated in Donal III undergoing a heart valve

replacement. The Snyders returned a second time to

Camp LeJeune in July of 1971 and remained

stationed there until October of 1972.

According to the Plaintiffs’ Complaint, as

a result of mulitary personnel using degreasing

agents to clean tanks and weapons on the base,

toxic chemicals trichlorvoethylene [“TCE”] and

tetrachloroethylene (“PCE”] contaminated the water

system of Camp LeJeune. Plaintiffs claim that

because TCE and PCE were disposed of by being

poured into barrels and then directly onto the

ground, these toxic chemicals seeped into the

soil system resulting in contamination of the

underground water supply at Camp LeJeune.

Plaintiffs further claim that because Pam Snyder

consumed the water from Camp LeJeune while she

was pregnant with Donal III, she was exposed to

TCE and PCE toxins which resulted in Donal III

heing born with the BAV congenital heart defect.

|

=

Finally, Plaintiffs contend that because the

Government failed to properly dispose of the waste

materials and issued untimely and inadequate

warnings, Donal Ill was also exposed to the

chemicals in Camp LeJeune’s water supply during

his early childhood years.

Plaintiff, Donal McLean Snyder, III, together

with his parents, Donal McLean Snyder, Jr., and

Pam Snyder filed the above captioned cause

pursuant to the FTCA, alleging that the United

States government is liable to them for damages

associated with the BAV defect from which Donal ill

suffers. The operative Complaint in this case asserts

the following tort claims against the United States,

with the claims of the Snyder parents being

derivative in nature: 1) that Defendant negligently

maintained and/or protected the water supply at

Camp LeJeune; 2) that Defendant acted with

reckless disregard, to the point of being an

intentional act, for the Plaintiffs’ welfare; 3) that

Defendant was grossly negligent in disregarding the

welfare of Plaintiffs to the degree that such

disregard amounted to an intentional act; 4) that

Defendant breached its duty of care by failing to

adequately oversee the water supply at Camp

LeJeune; and 5) that Defendant intentionally

inflicted emotional distress upon the Plaintiffs im

connection with the negligent contamination of the

water supply at Camp LeJeune, Ct. R. #4, Plaintiffs’

Am. Comp. filed August 17, 2004.

Defendant filed a Motion for Summary

Judgment on February 22,2006. Plaintiffs filed a

collective response on March 23, 2006, followed by

the Defendant's reply on April 3, 2006. Subsequent

6a

to the above captioned cause being reassigned to

United States District Judge Louis Guirola, the

Court entered an order denying Defendant’s Motion

for Summary Judgment but directing both parties to

file Motions on the question of the Court's subject

matter jurisdiction over this case, namely the issue

of the applicability of the discretionary function

exception to the FTCA. Ct. R. #57, Op. at p. 3. The

instant Motions were then filed by the Defendant

and the Plaintiffs on March 23, 2007. Both parties

have filed Responses and the Defendant has filed a

Rebuttal. The above captioned cause was reassigned

to the undersigned on May 21, 2007,

IL, DISCUSSION

A. The Court's Subject Matter Jurisdiction Over

Tort Claims Against the Uniled States

Federal courts are courts” of limited

jurisdiction, see 13 CHARLES WRIGHT & ARTHUR

MILLER, Federal Practice and Procedure § 3522

(1984), and must consider the question of subject

matter jurisdiction sua sponte if it is not raised by

the parties. The Court must dismiss any action if

such jurisdiction is lacking. See FED. R. CIV. P.

12(h)(3); Matter of Kutner, 656 F.2d 1107, 1110 (5%

Cir. 1981), cert. denied, 455 U.S. 945 (1982).

“[J]urisdiction goes to the core ofthe court's power to

act, not merely to the rights of the particular parties.

If jurisdiction could be waived or created by the

parties, litigants would be able to expand federal

jurisdiction by action, agreement, or their failure to

perceive a jurisdictional defect.” Grannakos v. M/V

Bravo Trader, 762 F.2d 1295, 1297 (5t© Cir. 1985).

“|W]hatever route a case arrives in federal court, it is

—_

as

a

the obligation of both district court and counsel to be

alert to jurisdictional requirements.... ([t]hat

obligation is equally applicable to cases initially filed

in federal court and cases removed from state court

to federal court.” Grupo Dataflux v. Atlas Global

Group, L.P., 541 U.S. 567, 593 (2004).

Federal courts are without subject matter

jurisdiction to hear suits against the United States

unless there has been a waiver of sovereiga

immunity. See United States v. Sherwood, 312 U.S.

584, 591 (1941). The Federal Tort Claims Act,

enacted by Congress in 1946, is a limited waiver of

sovereign immunity, making the federal government

liable to the same extent as a private party for

certain torts of federal employees acting within the

scope of their employment. See United States v

Orleans, 425 U.S. 807 (1976). The Federal Tort

Claiums Act generally removes the protection of

sovereign immumty for the government in cases

where government employees have caused damage

by their negligence during the course of their

employment. See Areiz v. United States, 604 F.2d

417, 426 (5 Cir. 1979). This waiver of sovereign

immunity is subject to a number of exceptions

among them the discretionary function exception

which makes the government immune from liability

for:

Any claim based upon an act or omission of an

employee of the Government, exercising due

care, oo the execution of a statute or

regulation, whether or not such statute or

regulation oe valid, or based upon the exercise

or pertorniance or the failure to exercise or

perform a discretionary function or duty on

8a

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).

The applicability of the discretionary function

exception involves a two-step analysis. First, because

the exception covers only acts that are discretionary

in nature, there must be a determination of whether

the challenged act involves an element of “judgment

or choice.” United States v. Gaubert, 499 U.S. 315,

322 (1991); Berkovitz v. United States, 486 U.S. 531,

536 (1988). This requirement is not satisfied if a

federal statute, regulation or policy specifically

prescribes the course of action that the government

employee must follow, for in this situation the

employee “has no rightful option but to adhere to

the directive.” Gaubert, 499 U.S. at 322, quoting

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

Second, if the action involves a choice or judgment,

then a determination must be made “whether that

judgment is of the kind that the discretionary

function exception was designed to — shield.’

Berkovitz, 486 U.S. at 536. The exception insulates

vovernment decisions based on social, economic, and

public policy. See id. A government regulation giving

government employees discretion “creates a strong

presumption that a discretionary act authorized by

the regulation involves consideration of the same

policies which led to the promulgation of the

regulations. Gaubert, 499 U.S. at 324. “Congress

wished 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. By iashioning an

9a

exception for discretionary governmental functions,

including regulatory activities, Congress took ‘steps

to protect the Government from liability that would

seriously handicap efficient government operations.”

United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 814 (1984),

quoting United States v. Muniz, 374 U.S. 150, 168

(1963).

B. Analysis of the Parties’ Arguments

Plaintiffs submit that the discretionary

function exception does not apply since at the time

they resided at Camp LeJeune, the following Naval

Regulation was in place which they claim prescribed

a specific course of action:

“refuse, in any form, should not be disposed of

where it may pollute surface or underground

waters which are eventually to be used as

drinking water.”

The record reveals that this’ particular

directive regarding disposal of refuse was published

in the Manual of Naval Preventative Medicine in

June of 1957: Ch. 8, § 15 Garbage & Refuse Disposal.

See Kx. “A” to Pls. Mot. for Summ. J. Plaintiffs

contend that as a result of the Defendant violating

this regulation, they sustained harm that was

preventable. The Defendant argues that because the

presence of TCE and PCE was not discovered at

Camp LeJeune until the 1980's, there were no

requirements in place during the relevant time

period regarding the use and disposal of the

chemicals used on the base

10a

The Defendant correctly points out that TCE

and PCE were not regulated as toxic pollutants

under the Clean Water Act until August 25, 1978,

well after the time period relevant to this lawsuit.

See 40 C.F.R. Part 403 (1978). The Environmental

Protection Agency [“EPA”] did not regulate TCE or

PCE as hazardous wastes under the Resource

Conservation and Recovery Act [“RCRA”] until

November 19, 1980. See 40 C.F.R. Part 261. The

EPA did not regulate TCE or PCE as drinking water

contaminants under the Safe Water Drinking Act

until January 1989, and July 1992, respectively. See

52 Fed. Reg. 25,690 (July 8, 1987) and 56 Fed. Reg.

3,526 (Jan. 30, 1991); see also Exs. “10”, “11”, “12”

and “13” att. to Defs Mot. for Summ. J. In short,

there were no government regulations which

specifically regulated TCE and PCE at the time

Plaintiffs allege they were exposed to _ these

chemicals.

Plaintiffs have not identified any other federal

statute or rule in place during the relevant time

period other than the aforementioned naval

regulation. That regulation nowhere mentions TCE

and PCE and addresses only “refuse” disposal in

general. Nor does it offer any specific guidance

regarding how to dispose of refuse, leaving to

military personnel the determination of whether a

particular disposal location would fall within the

meaning of the phrase “where it [refuse] may pollute

surface or underground waters.” Therefore, this

provision cannot be construed as a specific directive

for handling the disposal of TCE and PCE during the

time that Plaintiffs resided at or near Camp

LeJeune. See OST, Inc. vu. United States, 285 F.3d

947, 953 (11% Cir. 2OO2)(ageney manual which

lla

provides only objectives and _ principles for a

vovernment agent to follow does not’ create

mandatory directive — which overcomes _ the

discretionary function exception to the FTCA. “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.”)

Due to the absence of any _ regulations

specifically delineating how to dispose of TCE and/or

PCE during the time of Plaintiffs’ allegations, the

Supreme Court and Fifth Circuit authorities

discussing the discretionary function exception lead

to the conclusion that the manner in which the

Marine Corps decided to dispose of these chemicals

during the time frame at issue fell within the

definition of a discretionary function, rendering the

Defendant immune from suit.

While the Fifth Circuit has authored opinions

on the discretionary function exception to the FTCA,

supra., there have been no decisions addressing

similar factual contexts to those presented here. The

cases most factually analogous to this one derive

from the Tenth Circuit in Ross v. United States, 129

Fed. Appx. 449 (10th Cir. 2005)! and Aragon v. United

' Unpublished opinions issued on or after January |,

1996, have no precedential or binding value except under the

doctrine of res yudicata. See 5'* CIR. R. 17.5.4. However, they

may be cited if they have persuasive value with respect to a

material issue that has not been addressed in a published

opinion and the unpublished disposition would assist the court

Se 4-4 ted.

12a

States, 146 F.3d 819 (10% Cir. 1998). In both cases,

plaintiffs, landowners who lived adjacent to military

installations, claimed that United States Air Force

operations generated TCE contamination which

polluted residential water wells.

In Aragon, the former Walker air military

base in Roswell, New Mexico, was utilized during the

period of 1942-1949 as a training ground for pilots

and a subsequent strategic command post during the

Korean War. Military personnel washed aircraft and

aircraft engines on the base with TCE, a known

degreasing agent commonly used by the mulitary

during that time. In 1967, the government.

deactivated the Walker Base. In i991, the New

Mexico Environmental Department detected TCE in

plaintiffs’ wells located near the cast boundary ofthe

facility. The Army Corp of Engineers subsequently

identified the probable source of contamination at

the base site. The Aragon plaintiffs filed claims with

the Air Force for compensation, including diminution

of property value, which were denied. Plaintiffs then

filed suit against the United States under the FTCA,

asserting the same causes of action for diminution of

property value and also for personal injuries,

emotional distress and other related compensation.

See Aragon, 146 F.3d at 822.

The Tenth Circuit affirmed the district court's

dismissal of the claims for lack of subject matter

jurisdiction based on the application of the FTCA

discretionary function exception. Specifically. the

Court found that the = discretionary function

exception to the FTCA precluded recovery, in that

the Air Force had discretion regarding its handling

and disposal of wastewater from its aircraft cleanup

13a

operations. ‘lhe Court stated in part that “there is

little doubt that the actions involved policy choices of

the most basic kind.... [iJndeed, the record makes

clear the military recognized it needed flexibility to

weigh its groundwater protection policies against

broader public and military policies; thus it allowed

the Air Force to place security and military concerns

above any other concerns.” /d. at 826.

The Plaintiffs in the present case raise an

inadequate warning argument similar to that

advanced by the plaintiffs in Ross v. United States,

129 Fed.Appx. 449 (10th Cir. 2005). There, after TCE

was discovered in the groundwater of the homes in

Tinker View Acres, adjoining Tinker Air Force Base

in Oklahoma City, Oklahoma, Ross and other

adjacent landowners brought suit under the FTCA

against the federal government for creating a public

and private nuisance when it generated hazardous

waste on the base, and then allegedly allowed the

waste to “permeate the groundwater and migrate to

the residents’ property.” Ross, 129 Fed.Appx. at 450.

The Ross plaintiffs argued that the _ pollution

damaged their property values and could impact

their health. They also asserted that the government

issued untimely and inadequate warnings. ‘I'he

Tenth Circuit determined that the plaintiffs did “not

specifically allege an absence of warning: rather,

they argue that the warnings they did receive were

‘untimely and inadequate. Again, we agree with the

district court that the policy choices surrounding the

warnings given (or the delaved issuance thereof) are

likewise shiclded by the discretionary function

exception.” Jd. at 451.

l4a

In the case sub judice, the timing of any

disclosures regarcing TCE and PCE contamination

at Camp LeJeune would also implicate policy

concerns that are “grounded in policy discretion and,

as such, are shielded by the discretionary function

exception to the FTCA.” Ross, 129 Fed.Appx. at 452;

OSI, Inc. v. United States, 285 F.3d 947,952 (11%

Cir. 2002); Aragon v. United States, 146 F.3d 819,

827 (10'° Cir. 1998). Based on United States

Supreme Court and Fifth Circuit precedents

regarding the application of the — general

discretionary function exception, as well as the

conclusions reached by the Tenth Circuit in cases

with similar factual scenarios, this Court can only

conclude that, at the time the Snyders were

stationed at Camp LeJeune, no specific directive

controlled the military’s discretion in disposing of or

providing warnings about TCE and PCE. The actions

of which Plaintiffs complain can only be classified as

ones involving judgment or choice, placing them

within the discretionary function exception cf the

FTCA. The authorities cited herein make it clear

that these types of decisions by the military

regarding operations at Camp LeJeune were the

kinds of government policy choices the discretionary

function exception was designed to shield. As such,

the Defendant has not waived sovereign immunity

under the facts of this case, and the Court therefore

lacks subject matter jurisdiction to hear the

Plaintiffs’ claims.

The facts and circumstances of this case are

most unfortunate, however this Court cannot

assume jurisdiction where none exists. The Fifth

15a

Circuit in censidering the discretionary function

exception to the Federal Tort Claims Act has

repeatedly held that challenges to the Court’s

jurisdiction are properly treated as Motions to

Dismiss under FED. R. CIV. P. 12(b)(1). See ALX El

Dorado, Inc. v. Southwest Sav. and Loan

Assoctation/FSLIC, 36 F.3d 409, 410 (5** Cir. 1994),

citing McNeily v. United States, 6 F.3d 343, 347 (5th

Cir. 1993); Davis v. U.S., 961 F.2d 53, 57 (5t Cir.

1991). After careful consideration of the pleadings

filed in this case and the history of the parties’

litigation of this issue, it is the opinion of the Court

that Plaintiffs’ Complaint is barred by the FTCA’s

discretionary function exception. Defendant’s Motion

to Dismiss must therefore be granted. Accordingly,

IT IS, ORDERED AND ADJUDGED, that,

pursuant to FED. R. CIV. P. 12(b)(1), the above

captioned cause is dismissed for want of subject

matter jurisdiction.

IT IS, FURTHER ORDERED AND

ADJUDGED, that all remaining pending motions

are hereby DENIED AS MOOT.

SO ORDERED AND ADJUDGED this the

lst day of August, 2007.

HALIL SULEYMAN OZERDEN

UNITED STATES DISTRICT JUDGE

l6a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 07-6067 1

D.C. DOCKET NO. 1:04-CV-627HSO-JMR

DONAL MCLEAN SNYDER, III; DONAL MCLEAN

SNYDER, JR; PAM SNYDER

Plaintiffs — Appellants

v.

UNITED STATES OF AMERICA

Defendant — Appellee

Appeal from the United States District Court for the

Southern District of Mississippi, Gulfport

Before JOLLY, BARKSDALE, and HAYNES, Circuit

Judges.

JUDGMENT

This cause was considered on the record on

appeal and the bri {s on file.

It is ordered and adjudged that the ;udgment

of the District Cc urt is affirmed.

IT IS FURTHER ORDERED that plaintiffs-

appellants pay to detendant-appellee the costs on

appeal to be taxed vb. the Clerk of this Court

ISSUED AS MANDATE: December 9, 2008

FILED: DECEMBER 10, 2008

17a

[Mxcerpt from Chapter 8, Section 15, Garbage and

Refuse Disposal of the Manual of Naval Preventive

Medicine Published by the Department of the Navy,

Bureau of Medicine and Surgery, June 1957,

attached a. Exhibit “A” to Plaintiffs Motion for

Summary Judgment on the Applicability of the

Discretionary Function Exception to Waiver of

Sovereign Immunity Under the Federal Tort Claims

Act (FTCA), Docket No. 63-2, Page 7 of 15, Snyder v.

USA, U.S. District Court Southern District of

Mississippi, Southern Division, CA#1:04cv00627-LG-

JMR. Entered: March 23, 2007]

8-15. Water Pollution

(1) Disposal of refuse into rivers, lakes,

harbors, and their watersheds overloads water-

purification systems and destroys sources of fish and

shellfish, or makes the fish unfit for food. In

recreational areas, this practice may introduce

pollut.on and safety hazards and decrease the

esthetic appeal.

(2) Most of the laws and _ regulations

pertaining to control of water pollution are directed

toward regulating the disposal of raw sewage into

natural waters. However, the organic component of

refuse—garbage -also contributes to water pollution,

primarily, by increased biological oxygen demand

(B.O.D.) of the water rather than by introduction of

infectious agents. The addition of organic material

not only causes a drain on available oxygen but

perpetuates the condition by destruction of plant and

animal life, which, in turn, increases pollution and

B.O.D. Progression of this cycle tends to produce

foul anaerobic conditions, the correction of which ts

18a

much more difficult than is their prevention.

Refuse, in any form, should not be disposed of where

it may pollute surface or underground waters which

are eventually to be used as drinking water.

Garbage grinders have made it possible to dispose of

garbage into the scwcrage system, where it can be

treated and reduced as sewage provided the capacity

of the system permits. The sanitary landfill is an

excellent substitute for the open dump, which spoils

land for future use. Since refuse dumped into the

water may spoil bathing and other types of

recreational areas, this practice is usually restricted

by law. In disposal at sea, both dilution and natural

biological reduction of the organic component

counteract centamination of the water.

19a

[Excerpt from United States’ Memorandum in

Support of its Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment, Page 3;

Docket No. 65-1, Page 8 of 24, Snyder v. USA, U.S.

District Court Southern District of Mississippi,

Southern Division, CA#1:04cv00627-LG-JMR.

Entered: March 26, 2007]

* * *

Over the past sixty-five years, Camp Lejeune

has played a vital role in the Marine Corps’ mission

to preserve the national security of the United

States. Called the “world’s most complete

amphibious training base,” the 246 square mile

military training facility has been an essential

training ground for thousands of military personnel

and is today the largest concentration of Marines

and sailors in the world. U.S. Exh. 6, at 6-7; U.S. Ex.

5 (Leatherneck Magazine, p. 35, October 1981); U.S.

Exh. 15 (The Coast of Carolina Satutes Camp

Lejeune: Unofficial Guide, p. 2 (1970)). Thousands of

Marines and sailors pass through Camp Lejeune

every year where they receive valuable training to

prepare them to defend our country in the

operational forces. U.S. Exh 6, at 7. As President

Bush recently observed, “[f]or more than 60 years,

Marines have gone forth from Camp Lejeune to fight

our country's battles.” U.S. Exh. 8 (Bush, George W..

Weekly Compilation of Presidential Documents, Vol.

39, Issue 14, page 405 (April 7, 2003)). The Marine

Corps has used Camp Lejeune to train Marines to

aught in World War II, Korea, Vietnam, Granada,

Saudi Arabia, Panama, KKuwait, Somalia,

Afghanistan, and Iraq. U.S. Exh. 6, at 7; U.S. Exh

16 (Lineage of the 2d Marine Division).

20a

As with many other military installations

across the country, routine waste disposal practices

at Camp Lejeune in- years” past caused

environmental contamination. The major activities

contributing to contamination included “fuel

supply, storage, and transport support, electrical

transformer maintenance and support, ordnance

stockpiles and uses, pesticide mixing and application

for disease control, fire training, provision of

water and wastewater disposal services, dry

cleaning activities, general utility maintenance

services construction services, mechanical support

maintenance services, including machine shop and

degreasing capabilities, battery, radar and chemical

treatment operations and maintenance as well as

other related areas of support. U.S. Exh. 9, at 12

(Report of Davis L. Ford, P.E. Ph.D). In essence,

Camp Lejeune was a major industrial complex,

which also housed thousands of individuals. See td.

In the 1980s, the military discovered TCE and PCE

in the Camp Lejeune water supply system.

* * *