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

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No. 08-894

Jn the Supreme Court of the Cnited States

DONAL MCLEAN SNYDER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DAVID S. FISHBACK

ADAM BAIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a provision of a 1957 Naval manual elim-

inated government discretion for purposes of the Fed-

eral Tort Claim Act’s discretionary function exception.

2. Whether there was a sufficient finding that peti-

tioners’ claims were susceptible to public policy consid-

erations and therefore properly dismissed under the

Federal Tort Claim Act’s discretionary function excep-

tion.

3. Whether decisions regarding disposal of indus-

trial waste at a military base are susceptible to publi

policy considerations under the Federal Tort Claim

Act’s discretionary function exception.

TABLE OF CONTENTS

Page

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PE POPOL Re AID MEW ee Mee eke Ou 14

TABLE OF AUTHORITIES

Cases:

Aragon v. United States, 146 F.3d 819 (10th Cir.

BN 35 sos a eeeaaeue ce encn wees 6, 7, 9, 10, 11, 12

Berkovitz v. United States, 486 U.S. 531

CO one ee a eee ele ss 3,9, 10, 13

Clark v. United States, 326 F.3d 911 (7th Cir. 2008) .... 7,8

Clark v. United States, 660 F. Supp. 1164 (W.D.

Wash. 1987), aff’d, 856 F.2d 1433 (9th Cir. 1988) ...... 9

Collins v. United States, No. 08-1334, 2009 WT,

Roe Ty ES ee | re 8

Dalehite v. United Sites, 346 U.S. 15 (1953) ........... 2

Indian Tourng Co. v.- ‘nited States, 350 U.S. 61

CTIOE. oo ake RES oe ee eS OR 13

Loughlin v. United States, 393 F.3d 155 (D.C. Cir.

BN kos oe he eRe eee es ee eee 13

National Collegiate Athletic Ass'n v. Smith, 525 US.

Gr Lae ks Ss ree a eee er re a a ae 8

OST Inc. v. United States, 285 F.3d 947 (11th Cir.

Ea eM NE? We arr PHD Ke yet Ph RM ADA roel 11,12

Parrott v. United States, 536 F.3d 629 (7th Cir. 2008) ...8

Ross v. United States, 129 Fed. Appx. 449 (10th Cir.

Snare ie stneme lone nese fay ty elinden crn Rae: eS

Cases—Continued: Page

Starrett v. United States, 847 F.2d 539 (9th Cir. 1988) .. 11

United States v. Gaubert, 499 U.S. 315 (1991) .. 2,3, 12,13

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

Grandense (Varig Airlines), 467 U.S. 797 (1984) ..... 3

United States v. United Foods, Inc., 533 U.S. 405

a aciads cheb ccee einen eu cose vey er enue sun 8

Western Greenhouses v. United States, 878 F. Supp.

et, We i Ss hn wk wena w kak ees 13

Statutes, regulations and rules:

Federal Water Pollution Control Act, 33 U.S.C. 1251

ONG tah in ti on sca age prc kc aad BA mtn a WON We Bik wo 4

Federal Torts Claims Act, 28 U.S.C. 1346 et seq.:

Se I I ak cg bp hw en ww awa Gee BOO 1

ee 6 Ga eip eee Oe ace Rae 2

ee as cake plu eae aes AA eG 2

ee I os Cae dene bo eae ene eee ene 8

Resource Conservation and Recovery Act of 1976,

ers OE Ooo ba sida or aeu eco kewe ken ceaaes 4

Safe Drinking Water Act, 42 U.S.C. 300f et seq. ........ 4

Fed. R. Civ. P.:

I UN ere Ue gee as eee 7

SR ee ie) Chae fee ee eee

EE ieee eae eo ey aan a oa eae 7

eT OE ee. oe ep ee ee a ae ee 12

eee ee oa es. eS ae eae aeeee es 12

Miscellaneous: Page

Bureau of Medicine and Surgery, U.S. Dep't of the

Navy, NAVMED P-5010-8, Manual of Naval

Preventive Medicine (June 1957) ........2..4-. 4,5, 10

In the Supreme Court of the Guited States

No. 08-894

DONAL MCLEAN SNYDER, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-2a)

is not published in the Federal Reporter, but is re-

printed in 296 Fed. Appx. 399. The opinion of the dis-

trict court (Pet. App. 3a-15a) is reported at 504 F. Supp.

2d 136.

JURISDICTION

The judgment of the court of appeals was entered on

October 16, 2008 (Pet. App. 16a). The petition for a writ

of certiorari was filed on January 14, 2009. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Prior to the enactment in 1946 of the Federal

Torts Claims Act (FTCA), 28 U.S.C. 1346(b), there was

(1)

2

no non-maritime judicial remedy for anyone whose in-

jury or death was caused by action or inaction of the

United States. See Dalehite v. United States, 346 U.S.

15, 24-25 (1953). The FTCA waives the United States’

sovereign immunity and renders the United States liable

for damages for the

negligent or wrongful act or omission of any em-

ployee of the Government while acting within the

scope of his office or employment, under circum-

stances where the United States, if a private person,

would be liable to the claimant in accordance with

the law of the place where the act or omission oc-

curred.

28 U.S.C. 13846(b)(1). Congress, however, expressly ex-

cluded from that waiver

[a]ny claim * * * based upon the exercise or per-

formance or the failure to exercise or perform a dis-

cretionary 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). Ifa tort claim comes within that dis-

cretionary function exception, the claimant’s remedy, if

any, lies where it did before 1946—with Congress.

This Court has established a two-part test to deter-

mine the applicability of the discretionary function ex-

ception. First, the allegedly negligent act or omission

must be a matter of discretion. United States v. Gau-

bert, 499 U.S. 315, 322 (1991). A government employee’s

conduct is not discretionary if a “federal statute, regu-

lation, or policy specifically prescribes a course of action

for an employee to follow,’ because ‘the employee has ne

rightful option but to adhere to the directive.’” bid.

3

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

(1988)).

Second, if the government employee had discretion,

the discretionary function exception then applies if the

conduct involved the kind of judgment that the discre-

tionary function exception was designed to shield.

Gaubert, 499 U.S. at 322-323; Berkovitz, 486 U.S. at 536-

537. Because Congress intended the discretionary func-

tion exception to “prevent judicial ‘second-guessing’ of

legislative and administrative decisions grounded in so-

cial, economic, and political policy,” United States v.

S.A. Empresa de Viacao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797, 814 (1984), the exception applies

if the nature of the conduct is “susceptible to policy anal-

ysis,” Gaubert, 499 U.S. at 325. Under this inquiry, the

focus must be on the “nature of the conduct” and not the

“status” of the allegedly negligent government employee

or the employee’s “subjective intent in exercising the

discretion.” /d. at 322, 325 (citation omitted).

2. Petitioner Donal McLean Snyder, Jr., served in

the United States Marine Corps. He and his wife, peti-

tioner Pam Snyder, were stationed at Camp Lejeune,

North Carolina, from March through December of 1970.

The couple had a son, petitioner Donal McLean Snyder,

lil (Donal ILI), in January 1971. The child was diag-

nosed with a congenital heart defect known as bicuspid

aortic valve. In July 1971, petitioners returned to Camp

Lejeune and remained there until October 1972. Pet.

App. 4a.

In 2004, petitioners filed an action against the United

States under the FTCA, alleging that the Camp Lejeune

water system had been contaminated with the chemicals

trichloroethylene (TCE) and tetrachloroethylene (PCE)

because military personnel had used degreasing agents

4

to clean tanks and weapons on the base. Petitioners

claimed that the chemicals were disposed of in barrels

and directly onto the ground, and, consequently, the

chemicals seeped into the soil and eventually migrated

to the underground water supply. Petitioners alleged

that Pam Snyder, in consuming Camp Lejeune water,

was exposed to those chemicals while she was pregnant

with Donal III, and that that exposure caused his heart

defect. Petitioners’ complaint asserted several tort

claims alleging that the United States was negligent in

disposing of chemicals and failing to protect Camp

Lejeune’s water supply. Pet. App. 4a-5a.

3. The district court dismissed petitioners’ com-

plaint for lack of subject matter jurisdiction. Pet. App.

3a-15a. Applying the FTCA’s two-part discretionary

function test, the district court concluded that the excep-

tion barred petitioners’ action. First, the court con-

cluded that disposal of the chemicals involved govern-

ment discretion. The court found that there were no

specific government provisions regulating TCE and

PCE prior to and including the time that petitioners

resided at or near Camp Lejeune. /d. at 9a-lla.' The

only provision that petitioners had identified was from

a 1957 Naval manuai stating that “refuse * * * should

not be disposed of where it may pollute surface or un-

derground waters which are evertually to be used as

drinking water.” /d. at Ya (quoting Bureau of Medicine

and Surgery, U.S. Dep't of the Navy, NAVMED P-5010-

' The district court noted that TCE and PCE were not regulated as

pollutants under the Federal Water Pollution Control Act (Clean Water

Act), 33 U.S.C. 1251 et seq., the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. 6901 et seq., or the Safe Drinking Water Act, 42

U.S.C. 300f et seq., until well after the ime period relevant to this law

suit. Pet. App. 10a.

~~

o

8, Manual of Naval Preventive Medicine, Art. 8-15, at

8-65 (June 1957) (1957 Manual)). The court noted that

the 1957 Manual did not mention TCE or PCE and

failed to “offer any specific guidance regarding how to

dispose of refuse, leaving to military personnel the de-

termination of whether a particular disposal location

would fa. within the meaning of the phrase, ‘where it

[refuse] may pollute surface or underground waters,’”

as used in the provision. /d. at 10a (quoting 1957 Man-

ual, Art. 8-15, at 8-5).

Second, the court found that the alleged negligent

conduct was basea upon policy considerations, citing

factually analogous cases from the Tenth Circuit. Pet.

App. lla-14a (citing Ross v. United States, 129 Fed.

Appx. 449 (10th Cir. 2005), and Aragon v. United States,

146 F.3d 819 (10th Cir. 1998)). The court noted that in

Ross and Aragor landowners who lived adjacent to mili-

tary installations claimed that military operations gen-

erated TCE contamination, which polluted residential

well waters. In each case, the Tenth Circuit affirmed

dismissal based upon the FTCA’s discretionary function

exception. Pet. App. lla-l3a. In particular, the district

court quoted the Tenth Circuit’s statement in Aragon

that

[there is] little doubt * * * the Air Foree’s actions

involved policy choices of the most basic kind....

Indeed, the record makes clear the military recog-

nized it needed flexibility to weigh its groundwater

protection policies against broader public and mili-

tary policies; thus it allowed the Air Force to place

security and military concerns above any other con-

cerns.

6

Id. at 13a (quoting Aragon, 146 F.3d at 826). The court

concluded that these “authorities * * * make it clear

that these types of decisions by the military regarding

operations at Camp Lejeune were the kinds of govern-

ment policy choices the discretionary function exception

was designed to shield.” /d. at 14a.

4. In an unpublished decision, the court of appeals

affirmed. Pet. App. la-2a. Finding that the district

judge had “entered a thorough and thoughtful opinion,”

the court affirmed “[e]ssentially for the reasons stated

by the district court.” /d. at la.

ARGUMENT

The unpublished decision of the court of appeals

does not warrant further review. The district court cor-

rectly applied the two-part test established by this

Court for determining the applicability of the Federa!

Torts Claims Act’s discretionary function exception, and

the court of appeals correctly affirmed that decision.

The court of appeals’ non-precedential decision neither

conflicts with any decision of this Court or of any other

court of appeals, nor presents any issue of general im-

portance warranting further review.

1. Although petitioners assert (Pet. 5-5) that this

case implicates circuit conflicts on two issues, the court

of appeals’ decision was not predicated on either of those

issues. The asserted conflicts, accordingly, provide no

basis for reviewing the court of appeals’ decision.

a. Petitioners contend (Pet. 5) that this Court’s re-

view is warranted because there is an intercircuit con-

flict regarding whether the F’'TCA’s discretionary func-

tion exception is a jurisdictional prerequisite. But the

court of appeals’ decision was not based on the jurisdic-

tional nature of the discretionary function exception. In

7

the absence of any indication that that issue had a bear-

ing on the present case, it provides no basis for further

review.

While the district court dismissed the case for lack

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

12(b)(1), see Pet. App. 15a, the district court’s ultimate

resolution of the case was not predicated upon the juris-

dictional nature of the discretionary function exception.

There is no indication in the district court’s decision

that it piaced the burden of proof on petitioners or re-

solved any factual issues. See id. at 9a-14a. Cf. Aragon

v. United States, 146 F.3d 819, 832 (10th Cir. 1998)

(placing burden of proof on plaintiff in addressing

FTCA’s discretionary function exception). To the con-

trary, the court accepted the petitioners’ allegations and

assertions of fact at face value. See Pet. App. 4a-5a.

The court of appeals, in an unpublished opinion, merely

noted that the dismissal was for lack of subject matter

jurisdiction and affirmed “[e]ssentially for the reasons

stated” by the district court. /d. at 2a. Petitioners have

not shown or argued that the decisions below would have

been any different had the district court dismissed the

case for failure to state a claim, Fed. R. Civ. P. 12(b)(6),

or for failure to raise a material issue of triable fact,

Fed. R. Civ. P. 56.

Even if the outcome of this case had turned on the

court’s treatment of the FTCA’s discretionary function

exception as jurisdictional, no square circuit conflict

exists regarding that issue. Citing Clark v. United

States, 326 F.3d 911 (2003), petitioners state that the

“Seventh Circuit has suggested that the treatment of

the discretionary function exception as a jurisdictional

prerequisite is not correct.” Pet. 5 & n.1. Clark, how-

ever, did not involve the FTCA’s discretionary function

8

exception, but rather the exception for any “claim aris-

ing in respect of the assessment or collection of any tax.”

28 U.S.C. 2680(c). See Clark, 326 F.3d at 913. More-

over, the court found that treatment of the exception as

“jurisdictional,” rather than as an element of the plain-

tiff’s statutory right to relief, “does not matter” because

the district court had correctly concluded that the plain-

tiffs’ claim could not proceed under the FTCA. /bid.”

b. Petitioners also assert (Pet. 6) that there is a cir-

cuit conflict regarding whether federal agency manuals

can create mandatory obligations that eliminate govern-

ment discretion under the FTCA’s discretionary func-

tion exception. The purported circuit conflict, however,

is not implicated in this case because the issue was not

dispositive or even addressed in the courts below. And

this Court’s ordinary practice is “not [to] decide in the

first instance issues not decided below.” National Colle-

giate Athletic Ass’n v. Smith, 525 U.S. 459, 470 (1999);

see United States v. United Foods, Inc., 533 U.S. 405,

417 (2001).

Under the first part of the discretionary function

test, a government employee retains discretion as long

as no “federal statute, regulation, or policy specifically

* More recently, in Parrott v. United States, 536 F.3d 629 (2008), the

Seventh Circuit stated in dicta that the FTCA’s statutory exceptiens,

including the discretionary function exception, “limit the breadth of the

Government's waiver of sovereign immunity,” but not “by withdrawing

subject-matter jurisdiction from the federal courts.” /d. at 634. Ac

cordingly, the court stated that the United States has the “burden to as-

sert these exceptions.” /d. at 635; see also Collins v. United States, No.

08-1334, 2009 WL 1162529, at *4 (7th Cir. May 1, 2009) (citing Parrott,

stating in dicta that the diseretionary function exception is not juris-

dictional, recognizing that the government raised the discretionary

function exception, and holding that the exception applied).

-

prescribes a course of action for [the] employee to fol-

low.” Berkovitz v. United States, 486 U.S. 531, 536

(1988). Therefore, to remove discretion, a provision

must not only be prescriptive or mandatory, but it must

also be specific. Here, the district court’s decision did

not turn on whether provisions in a federal agency man-

ual could be mandatory, but rather on the court’s finding

that the particular provision at issue here was not su/ffi-

ciently specific to remove discretion. The district court

noted that the provision in the 1957 Manual upon which

petitioners relied did not mention TCE or PCE and only

addressed “refuse” disposal in general. Pet. App. 10a.

The court found that there was no “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 under-

ground waters.’” /bid. (emphasis added). That fact-

bound determination does not merit this Court’s review.

In any event, petitioners have failed to demonstrate

that there is a conflict in the circuit courts regarding

whether provisions in federal agency manuals are inher-

ently mandatory. Petitioners rely upon a pre-Berkovitz

ease, Clark v. United States, 660 F. Supp. 1164, 1172-

1173 (W.D. Wash. 1987), aff’d, 856 F.2d 1433 (9th Cir.

1988), in which a district court found that certain mili-

tary manuals contained mandatory requirements and

held that the discretionary function exception did not

apply. The Ninth Circuit affirmed that decision in a one

sentence order “for the reasons stated in the distriet

court’s opinion.” 856 F.2d at 1434. In Aragon, the

Tenth Circuit stated that “[a]n agency manual, in con-

trast to a regulation, is not necessarily entitled to the

force and effect of law.” 146 F.3d at 824 (emphasis add-

10

ed). The court noted that a particular manual’s qualifi-

cation that it was “intended for guidance” because of the

“varied nature of industrial problems” weighed “heavily

against ruling the Manual prescribed mandatory direc-

tives.” Jd. at 824-825 (citation omitted). Those case-

specific decisions do not create a conflict regarding any

general issue of whether provisions in an agency manual

should be regarded as mandatory for purposes of the

discretionary function exception.

2. The courts below correctly applied the discretion-

ary function exception. Petitioners’ claims of error are

unfounded and do not, in any event, provide a basis for

this Court’s review.

a. Petitioners contend (Pet. 9-11) that the court of

appeals erred in affirming the district court’s finding

that a provision from the 1957 Manual, stating 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,” was not suffi-

ciently specific to remove discretion. Pet. 9 (quoting

1957 Manual, Art. 8-15, at 8-5). Petitioners, however,

do not show how the provision specifically prescribed a

course of action by removing an employee's choice re-

garding how to act. See Berkovitz, 486 U.S. at 5386. As

the district court explained, the provision did not men-

tion TCE or PCE and failed to “offer any specific guid-

ance regarding how to dispose of refuse,” and it left to

military personnel the determination of whether dis-

posal in a particular location might pollute drinking wa-

ler. Pet. App. 10a.

In essence, petitioners contend (Pet. 11) that the dis-

cretionary function exception is inapplicable because the

regulation is a binding directive against water pollution,

and water pollution nevertheless occurred. As courts

11

have consistently held, however, goal-based water pollu-

tion provisions do not prescribe a specific course of con-

duct under the first part of the discretionary function

test. See OSI Inc. v. United States, 285 F.3d 947, 952

(11th Cir. 2002) (finding that objectives and principles

do not create mandatory directives that overcome the

discretionary function exception); Aragon, 146 F.3d at

826 (stating that a pollution prevention provision sug-

gests “principles rather than practices,” and “[a]n objec-

tive, alone, does not equate to a specific, mandatory di-

rective”).°

b. Petitioners also contend (Pet. 15-21) that the dis-

trict court failed to make a finding on the second part of

the discretionary function test, and industrial waste dis-

posal is not the type of conduct that the exception was

designed to shield. Petitioners are mistaken.

The district court plainly found that the alleged neg-

ligent conduct was grounded in policy considerations. In

addressing the second part of the discretionary function

test, the court cited the factually analogous Ross and

Aragon eases, which involved claims that military opera-

tions, inciuding waste disposal, caused TCE contamina-

tion of drinking water. Pet. App. lla-l14a. The district

court quoted Aragon’s statement that disposal of sol-

vents at an Air Force Base “involved policy choices of

* Petitioners’ reliance (Pet. 9-10) upon Starrett v. United States, 847

F.2d 539, 541-542 (9th Cir. 1988), is misplaced. In Starrett, the court

held that the requirement of ‘secondary treatment” of certain wastes

was sufficiently specific to overcome the discretionary function excep-

tion. But the “secondary treatment” prescription at issue in Starrett

mandated particular conduct, whereas the 1957 Manual provision at

issue here seeks a particular result and does not prescribe specific con-

duct. Moreover, the Ninth Circuit decided Starrett prior to this Court's

discussion in Berkovitz,

12

the most basic kind,” because “the military recognized

it needed flexibility to weigh its groundwater protection

policies against broader public and military policies” and

to place “security and military concerns above any other

concerns.” /d. at 18a (quoting Aragon, 146 F.3d at 826).

The court then concluded that these “authorities * * *

make it clear that these types of decisions by the mili-

tary regarding operations at Camp Lejeune were the

kinds of government policy choices the discretionary

function exception was designed to shield.” Jd. at 14a.

Thus, the district court expressly held that the second

part of the test was satisfied.

Petitioners incorrectly contend (Pet. 18-19) that the

military’s decisions regarding the disposal of waste sol-

vents at Camp Lejeune “do not rise to the level of public

policy. but rather are issues dealt with by landfills and

waste removal companies on a daily basis.” The fact

that the conduct at issue may also be performed by pri-

vate persons on a daily basis is not dispositive of the

inquiry. See Gaubert, 499 U.S. at 320, 325 (holding that

the discretionary function exception barred challenges

to the day-to-day government supervision of a federally-

insured savings and loan). The military’s waste disposal

decisions are necessarily intertwined with, and subject

to, the policies underlying the military’s broader mis-

sion, as embodied in Department of Navy regulations.

See generally 10 U.S.C. 5063; 32 C.F.R. 700.202. As

courts have consistently recognized, waste disposal and

environmental protection decisions at military bases

implicate publie policy considerations. See Ross v. l/ni-

ted States, 129 Fed. Appx. 449, 451-452 (10th Cir. 2005);

Aragon, 146 F.3d at 826-827. See also OS/, 285 F.3d at

953 (the second part of the discretionary function analy-

sis was satisfied where “ftlhe nature of the military’s

13

function requires that it be free to weigh environmental

policies against security and military concerns”); West-

ern Greenhouses v. United States, 878 F. Supp. 917, 929

(N.D. Tex. 1995) (decisions regarding whether to take

measures for environmental protection at a military

base were protected by the discretionary function excep-

tion, such conduct implicated public policy because deci-

sion-makers must “balance two of the nation’s top priori-

ties: national defense and environmental protection”).*

Petitioners erroneously rely (Pet. 12-13) upon this

Court’s holding in Indian Towing Co. v. United States,

350 U.S. 61, 69 (1955), that the government could be lia-

ble under the FTCA for failing to maintain a lighthouse

after the government had made the discretionary deci-

sion to operate the lighthouse. As petitioners acknowl-

edge (Pet. 12) and as this Court recognized in Gaubert,

499 U.S. at 326, the United States did not raise the

FTCA’s discretionary function exception in /ndian Tow-

ing. Instead, the United States argued that the FTCA

provided immunity for “uniquely governmental func-

tions.” Indian Towing, 350 U.S. at 64. This Court ex-

plained in Gaubert that “[t]he United States was held

liable [in /ndian Towing], not because the negligence

oecurred at the operational level but because making

sure the light was operational ‘did not involve any per-

missible exercise of policy judgment.’” 499 U.S. at 326

(quoting Berkovitz, 486 U.S. at 588 n.3). Because the

conduct at issue in the present case was grounded in

' Citing Loughlin v. United States, 393 F.3d 155 (D.C. Cir. 2004),

petitioners argue (Pet. 18-19) that only munitions disposal decisions im-

plicate military policies, and the discretionary function exception should

not shield the military's disposal of other substances. But Loughlin’s

reasoning did not turn on the fact that munitions were at issue in that

case. See 393 F.3d at 163-164.

14

public policy considerations, the decisions below are

fully consistent with /rdian Towing.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

DAVID S. FISHBACK

ADAM BAIN

Attorneys

MAY 2009