UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OCEANVIEW FARMS, Limited

Partnership,

Defendant & Third Party

Plaintiff-Appellant,

KERR MARINA, d/b/a Yamaha of

Jacksonville, Incorporated; SIDNEY

WHALEY; CHARLES R. HUGHES; BOB

PADGETT,

No. 99-2096

Plaintiffs,

v.

UNITED STATES OF AMERICA; NATURAL

RESOURCES CONSERVATION SERVICE, a

division of the United States

Department of Agriculture,

Third Party DefendantsAppellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, District Judge.

(CA-97-120-7-F)

Argued: April 6, 2000

Decided: May 3, 2000

Before LUTTIG and WILLIAMS, Circuit Judges, and

Gerald Bruce LEE, United States District Judge

for the Eastern District of Virginia,

sitting by designation.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Joseph Butler, PARKER, POE, ADAMS & BERNSTEIN, L.L.P., Raleigh, North Carolina, for Appellant. Neil Irving

Fowler, Assistant United States Attorney, Raleigh, North Carolina,

for Appellees. ON BRIEF: William L. Rikard, Jr., Kevin L. Chignell,

PARKER, POE, ADAMS & BERNSTEIN, L.L.P., Raleigh, North

Carolina, for Appellant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,

North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Oceanview Farms appeals from the district court's dismissal of its

claim against the United States for the allegedly negligent design of

Oceanview Farms' wastewater storage lagoon. The district court dismissed Oceanview Farms' claim for lack of subject matter jurisdiction because the United States' conduct fell within an exception to

government liability under the Federal Tort Claims Act ("FTCA").

We affirm.

I.

In 1992, Oceanview Farms contacted the Natural Resources Conservation Service ("NRCS"), a division of the United States Department of Agriculture, to assist it in designing a wastewater lagoon and

waste management system for the hog farm Oceanview Farms

planned to build in Onslow County, North Carolina. The NRCS pro-

 2
vided assistance with the planning, design, and construction of the

lagoon and waste management system, and certified the lagoon after

it was built.

On June 21, 1995, approximately a year after Oceanview Farms

began operating the lagoon, the lagoon failed, releasing over 20 million gallons of diluted wastewater into the New River in eastern North

Carolina. Plaintiffs filed a class action suit in district court against

Oceanview Farms alleging that it had permitted the wastewater to be

released into the river. Oceanview Farms filed a third party claim

under the FTCA against the United States and the NRCS for negligently designing the storage lagoon.1 The district court dismissed the

primary action because of the plaintiffs' egregious failure to comply

with discovery. The United States moved to dismiss the third party

action for lack of subject matter jurisdiction on the ground that the

conduct at issue -- designing the storage lagoon-- fell within the

"discretionary function exception" to federal government liability

under the FTCA. See 28 U.S.C. § 1346(a). The district court granted

the motion and dismissed Oceanview Farms' third party action for

lack of subject matter jurisdiction.

II.

The discretionary function exception to the FTCA's waiver of sovereign immunity provides that the United States is not liable for any

claim "based upon the exercise or performance or the failure to perform a discretionary function or duty on the part of a federal agency

or an employee of the Government, whether or not the discretion

involved be abused." 28 U.S.C. § 2680(a). The question in this case

is whether NRCS' design of the storage lagoon is conduct that falls

within the discretionary function exception.

Oceanview Farms argues that, although the NRCS engineers who

designed the storage lagoon used discretion in the design,2 their dis-

_________________________________________________________________

1 On appeal Oceanview Farms identifies six specific acts of negligent

design, see Appellant's Br. at 28-34, but their specific enumeration does

not alter our conclusion here.

2 Oceanview Farms argues in the alternative that in two instances the

NRCS was not acting within its discretion at all but was violating a mandatory directive. See Appellant's Br. at 48-50. The district court rejected

this argument because the provisions referred to were not actually mandatory in the way Oceanview Farms suggested.

 3
cretion was akin to that used by a private engineer in making technical judgments, not the kind of discretion that would implicate

government policy and that would insulate the United States from liability under the discretionary function exception.

The district court correctly held that although the NRCS design

decisions involved technical engineering judgments, the design considerations -- including functional effectiveness, safe performance,

cost effectiveness, and adaptation to surrounding water and landscape

resources -- were also "susceptible of policy analysis." United States

v. Gaubert, 499 U.S. 315, 325 (1991) (holding that the agency's

advice to a private bank on whom to hire, which litigation positions

to take, and how to structure the bank fell within the discretionary

function exception despite the fact that the advice involved technical

business judgment). That is, the court correctly held that such considerations were reflective of the policies that underlay the statutes and

regulations pursuant to which the NRCS engineers were acting, and

therefore that the design considerations fell within the discretionary

function exception.

Having heard argument in the case and considered the submissions

of the parties, we agree with the conclusion reached by the district

court and affirm on its substantive reasoning.

AFFIRMED

 4