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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0050%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Briefo
- **Published:** January 1, 2008

## Text

x -\ :

P ef ux "es y
il

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
PPPOE ETE re er ery wre Sr re 1
oo ces cle aan ace = yee oe a hee ee 1
ee eae a sale ee cae a eee ]
PG 5-50 os nS eee SN Eo vee ees ere ae 6
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0050%3A1. Public record. Not legal advice.