ELR Citation: 42 ELR 20047
No(s). 10-1648 (1st Cir. Feb 14, 2012)

The First Circuit upheld the dismissal of residents' Federal Tort Claims Act (FTCA) against the United States in connection with the Navy's alleged negligence in emitting certain pollutants during military exercises at a naval training facility on Vieques Island, Puerto Rico. The discretionary function exception to the waiver of sovereign immunity precludes their FTCA claim. The residents' theory that they may sue under the FTCA for alleged CWA violations was rejected because Congress did not intend that the CWA authorize civil tort actions against the federal government for damages. The residents also argued that the Navy violated NPDES permits that purportedly forbid firing depleted uranium bullets on Vieques. But the residents neither introduced the text of the permits upon which they rely nor identified the statutory context governing the alleged permits. The residents also argued that the Navy violated unidentified internal regulations, policies, directives, and orders. Again, their allegations say nothing of the specific content of the alleged internal directives, what these alleged directives require, or how the alleged requirements relate to the challenged conduct. Lastly, the residents claimed that the Navy failed to comply with a purported duty to warn the plaintiffs about pollution. But the Navy's choices were made pursuant to its judgment as to how it conducted its military operations. The Supreme Court has made clear that federal courts are constrained not to interfere with the exercise of such discretion by any agency, and that is particularly so in the running of military operations. Nevertheless, the residents' pleadings raise serious health concerns that should be brought to the attention of Congress. The court therefore instructed its clerk to send a copy of the opinion to the leadership of both the House and Senate.