Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-1889

MARÍA G. ABREU, et al.

Plaintiffs, Appellants,

v.

THE UNITED STATES, DONALD H. RUMSFELD, Secretary of Defense,

ROBERT B. PIRIE, Acting Secretary of the Navy,

GENERAL JAMES JONES, Commander of the Marine Corps

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Chief Judge, 

Torruella and Dyk , Circuit Judges. *

Carl E. McAfee and Celina Romany Siaca, with whom Celina

Romany Law Offices was on brief, for appellants.

Mark B. Stern, with whom Peter D. Keisler, H.S. García,

Gregory G. Katsas and Alisa B. Klein were on brief, for appellees.

November 14, 2006
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DYK, Circuit Judge. This is a suit under the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680 (2000).

The plaintiffs, Abreu et al., sought money damages from the United

States for personal injuries and property damage allegedly caused

by the United States Navy’s operation of the Atlantic Fleet Weapons

Training Facility (“AFWTF”) on Vieques Island, Puerto Rico.

Acevedo, et al. v. United States, Abreu, et al. v. United States,

Nos. 04-1232, -1372 (D.P.R. Apr. 25, 2005) (consolidated). The

United States District Court for the District of Puerto Rico

dismissed their claims for want of subject matter jurisdiction,

holding that the claims were barred by the FTCA’s discretionary

function exception, 28 U.S.C. § 2680(a). We affirm.

I.

A.

The FTCA provides a limited waiver of the federal

government’s sovereign immunity for claims of “injury or loss of

property . . . caused by the negligent or wrongful act or omission

of any employee of the Government . . . under circumstances 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 occurred.” 28 U.S.C. § 1346(b)(1). “[F]or liability to

arise under the FTCA, a plaintiff's cause of action must be

'comparable' to a 'cause of action against a private citizen'

recognized in the jurisdiction where the tort occurred, and his
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allegations, taken as true, must satisfy the necessary elements of

that comparable state cause of action.” Dorking Genetics v. United

States, 76 F.3d 1261, 1266 (2d Cir. 1996) (quoting Chen v. United

States, 854 F.2d 622, 626 (2d Cir. 1988)).

Even where the government conduct would create state tort

liability in a suit against a private party, the FTCA provides that

sovereign immunity is not waived if the challenged governmental

action involved the exercise of discretion. 28 U.S.C. § 2680(a).

This provision is known as the discretionary function exception.

In general, that exception, in turn, is inapplicable if the

government action is contrary to the requirements of Federal law.

United States v. Gaubert, 499 U.S. 315, 324-25 (1991). This case

primarily concerns the scope of the exception to the discretionary

function exception.

B.

This court described the history, layout, and operation

of the AFWTF in detail in Romero-Barceló v. Brown, 643 F.2d 835

(1st Cir. 1981). We review that background only briefly here.

The United States Navy acquired land and built facilities

on Vieques Island between 1941 and 1943. Initially, the Navy used

the Vieques facilities primarily to conduct Atlantic Fleet Marine

Force maneuvers and training. In 1960, the Navy began using live

munitions in naval gunfire and air-to-ground targeting exercises on

Vieques. In 1973, additional live-ammunition weapons training
 Romero-Barceló v. Brown, 478 F. Supp. 646 (D.P.R. 1

1979), aff’d in part, vacated in part, Romero-Barceló v. Brown, 643

F.2d 835 (1st Cir. 1981), rev’d on other grounds, Weinberger v.

Romero-Barceló, 456 U.S. 305 (1982).

-4-

exercises were transferred from Culebra Island (also off the coast

of Puerto Rico) to Vieques. Along with the various training

facilities, the Navy operated an open burning/open detonation

facility at the AFWTF. The open burning/open detonation facility,

located on the easternmost end of Vieques, was used to detonate or

otherwise incinerate unused ordinance that was stored on the

western end of the Island. Concerned with the environmental impact

of the AFWTF, in 1977, the government of Puerto Rico initiated

litigation which eventually resulted in a district court order

requiring the Navy to comply with certain federal environmental

statutes, including the Clean Water Act, 33 U.S.C. §§ 1251-1357

(2000), and the National Environmental Policy Act, 42 U.S.C. §§

4321 et seq., in operating the AFWTF. The Navy obtained an 1

interim permit for the AFWTF in 1980.

In September 1983, the Navy and the government of Puerto

Rico executed a memorandum of understanding in which the Navy

agreed to make certain changes. On January 10, 2000, the United

States Environmental Protection Agency (“EPA”) issued, with the

Navy’s consent, an order requiring certain changes at the AFWTF.

The EPA made compliance with the consent order a condition for

final issuance of a permit that the Navy was required to obtain
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under the federal Resource Conservation and Recovery Act (“RCRA”).

42 U.S.C. § 6901 et seq. The Navy needed to obtain a final permit

in order to continue to operate the open burning/open detonation

facility in compliance with the statute. In May 2000, the Navy

discontinued live-fire exercises at the AFWTF. On April 30, 2003,

the Navy terminated all military exercises on Vieques Island.

The plaintiffs, residents of Vieques, filed suits against

the United States under the FTCA on March 19 and April 27, 2004.

They alleged that the Navy’s past military exercises and waste

disposal activities at the AFWTF had exposed them to hazardous

substances such as Agent Orange, depleted uranium, napalm, and

other ordinance with explosive components, as well as harmful noise

pollution. The plaintiffs sought damages for physical injury,

emotional distress and property damage. The district court

consolidated the actions.

On February 5, 2005, the district court rejected the

government’s contention that the suits were time-barred under the

FTCA’s two-year statute of limitations, 28 U.S.C. § 2401(b). The

court held that the suits were timely despite the fact that the

allegedly harmful governmental actions occurred more than two years

before the administrative complaints were filed, concluding that

the plaintiffs had alleged “continuing violations.” However, the

court also held that the continuing tort theory did not allow the

plaintiffs to recover damages for injuries sustained more than two
 Plaintiffs made several claims in the district court 2

that they do not raise on appeal, including claims under the

Endangered Species Act, 16 U.S.C. § 1531 et seq., claims relating

to the Navy’s transfer of military exercises from Culebra Island to

Vieques, and claims that the government is directly liable under

RCRA and the Clean Water Act.

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years before the administrative complaints were filed.

On April 22, 2005, the district court granted the

government’s motion to dismiss for lack of subject matter

jurisdiction. With respect to the claims that plaintiffs pursue on

appeal, the district court concluded that jurisdiction was lacking

because the Navy’s allegedly harmful conduct was within the

discretionary function exception. In the alternative the court 2

concluded that even if the discretionary function did not apply,

the plaintiffs’ claims nevertheless failed because the plaintiffs

had not established any causal connection between the governmental

conduct and their injuries. Finally, the district court denied the

plaintiffs’ request for discovery, concluding that additional

discovery would serve no purpose in light of the court’s

jurisdictional determination.

The plaintiffs timely appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1291 (2000).

II.

We address first the plaintiffs’ challenge to the

district court’s determination that the discretionary function

exception applies. 
 The Supreme Court’s recent decision in Arbaugh v. Y & 3

H Corp., 126 S. Ct. 1235, 1245 (2006), confirms that dismissal for

lack of subject matter jurisdiction is appropriate “[i]f the

Legislature clearly states that a threshold limitation on a

statute’s scope shall count as jurisdictional.”

-7-

A.

In a suit under the FTCA, the district court’s

jurisdiction is limited by 28 U.S.C. § 1346(b). Only claims

properly within the scope of the FTCA’s waiver of sovereign

immunity in 28 U.S.C. § 2674 are cognizable. Another provision

lists the exceptions to FTCA liability, and provides that if one of

the exceptions applies, “[t]he provisions of . . . section 1346(b)

of this title shall not apply.” 28 U.S.C. § 2680. One such

exception is the discretionary function exception, which provides

that sovereign immunity is not waived for claims “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.” 28 U.S.C. § 2680(a). Thus, if the

discretionary function exception applies, the jurisdictional grant

of section 1346(b) does not, such that “the [government] is

completely immune from suit, and the claim must be dismissed for

lack of subject matter jurisdiction.” Santoni v. Potter, 369 F.3d

594, 602 (1st Cir. 2004) (citing Kelly v. United States, 924 F.2d

355, 360 (1st Cir. 1991)).3
-8-

B.

The discretionary function exception “marks the boundary

between Congress’ willingness to impose tort liability upon the

United States and its desire to protect certain governmental

activities from exposure to suit by private individuals.” United

States v. S.A. Empressa de Viacao Aerea Rio Grandense (“Varig

Airlines”), 467 U.S. 797, 808 (1984). Congress, in enacting the

discretionary function exception, intended 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.” Id. at 814. In determining whether

conduct involves a discretionary function, we first ask whether

“the conduct itself [is] discretionary.” Montijo-Reyes v. United

States, 436 F.3d 19, 24 (1st Cir. 2006) (internal quotation marks

omitted); see also Irving v. United States, 162 F.3d 154, 162 (1st

Cir. 1998) (en banc); Wood v. Unites States, 290 F.3d 29, 36 (1st

Cir. 2002). To be discretionary, the conduct must involve “an

element of judgment or choice.” United States v. Gaubert, 499 U.S.

315, 322 (1991) (quoting Berkovitz v. United States, 486 U.S. 531,

536 (1988)); see also Dalehite v. United States, 346 U.S. 15, 34

(1953). 

Assuming that the challenged conduct “involves an element

of judgment,” we next consider “whether that judgment is of the

kind that the discretionary function exception was designed to
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shield.” Berkovitz, 486 U.S. at 536; see also Varig Airlines, 467

U.S. at 813. In other words we ask whether “the exercise of

discretion involve[s] (or is [] susceptible to) policy-related

judgments.” Montijo-Reyes, 436 F.3d at 24; see also Irving, 162

F.3d at 162.

The district court held, and the plaintiffs do not

contest, that “the military activities carried out by the Navy on

Vieques over the past several decades have involved discretionary

decision-making of the most fundamental kind,” requiring “balancing

competing concerns of secrecy and safety, national security and

public health.” Thus it is undisputed that the discretionary

function exception generally precludes FTCA claims based on the

Navy’s operation of the AFWTF.

This is not, however, the end of the inquiry. The

plaintiffs point out that the discretionary function exception

generally does not apply if the activity in question violates a

mandatory federal law. Gaubert, 499 U.S. at 324. In such

circumstances the exercise of discretion is precluded. The

plaintiffs argue that the Navy violated mandatory directives

imposed by federal statutes, the Clean Water Act, 33 U.S.C. §§

1251-1357 (2000) (“CWA”), RCRA, and the Noise Control Act, 42

U.S.C. §§ 4901-4918(2000) (“NCA”).

C.

It has long been established under the FTCA that actions
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by a government employee complying with a mandatory policy

directive are protected by the discretionary function exception.

Dalehite, 346 U.S. at 36; Varig Airlines, 467 U.S. at 820. In

Dalehite, the Court held that the discretionary function exception

protected the conduct of government employees who participated in

the production and dissemination of a fertilizer that exploded,

reasoning that the exception must shield the action of subordinates

implementing a regulatory plan because otherwise, each action by a

subordinate could potentially give rise to governmental liability,

and the exception would “fail at the time it would be needed.” 346

U.S. at 36. The Varig Airlines Court similarly shielded the FAA’s

implementation of a spot-check plan and the actions of employees

carrying out the plan, reasoning that the agency had discretion to

implement the plan and that the actions of the employees carrying

it out reflected the agency’s policy choices. 467 U.S. at 819-20.

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

Court addressed for the first time the question whether failure to

comply with such a directive made the discretionary function

exception inapplicable. The Court held that the discretionary

function exception did not shield the actions of employees of the

Food and Drug Administration and the National Institutes of Health

who licensed a vaccine in violation of mandatory requirements. The

Court held that this claim “does not challenge a discretionary

function. Rather, the claim charges a failure on the part of the
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agency to perform its clear duty under federal law. When a suit

charges an agency with failing to act in accord with a specific

mandatory directive, the discretionary function exception does not

apply.” Id. at 544.

Thereafter the Supreme Court returned to the issue in

United States v. Gaubert. 499 U.S. 315 (1991). That case involved

a claim by the directors of a thrift institution that the Federal

Home Loan Bank Board, pursuant to the Home Owner’s Loan Act of

1933, 12 U.S.C. §§ 1461-1470, had negligently supervised the

thrift, causing it to incur losses. The Gaubert Court reaffirmed

that when an employee follows a mandatory requirement in a

regulation, and when that regulation was promulgated by an agency

with delegated Congressional authority to implement a statute, the

agency has discretion in deciding how to implement the statute, and

the conduct of the employee who obeys the regulation is protected

by the discretionary function exception. Id. at 323-24. Thus,

when “a regulation mandates particular conduct, and the employee

obeys that direction, the Government will be protected because the

action will be deemed in furtherance of the policies which led to

the promulgation of the regulation.” Id.

 However, the Court also concluded that the discretionary

function exception does not shield the conduct of an employee who

violates a mandatory regulation. Id. In that situation, the

employee’s action cannot be deemed in furtherance of the policies
-12-

of the statute that the regulation implements. Nor does his

conduct reflect a permissible exercise of the discretion that

Congress delegated. Thus, “[i]f [a government] employee violates

[a] mandatory regulation, there will be no shelter from liability

because there is no room for choice and the action will be contrary

to policy.” Id. at 324. In the circumstances of Gaubert itself,

the Court concluded that the federal regulators acted in accordance

with the governing regulations enacted pursuant to delegated

authority to implement the Home Owners' Loan Act, and thus the

discretionary function exception precluded the suit. Id. at 334.

Each of the cases invoking the rule of Gaubert has

involved a suit against the United States based on the activities

of federal regulators; for example in Gaubert itself, the

activities of Federal Home Loan Bank Board regulators, Id. at 318-

19, and in Berkovitz, the actions of Food and Drug Administration

and National Institutes of Health regulators. 486 U.S. 533. The

language of both Berkovitz and Gaubert appears to be directed to

mandatory regulations governing the conduct of employees of the

regulatory agency. Thus, in Gaubert, the Court was concerned with

the situation “[w]here Congress has delegated the authority to an

independent agency . . . to implement the general provisions of a

regulatory statute and to issue regulations to that end.” 499 U.S.

at 323. See also Berkovitz, 486 U.S. at 545 (noting that

“application of the discretionary function exception . . . hinges
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on whether the agency officials making that determination

permissibly exercise policy choice”). This is not surprising. The

issue in those cases concerned the exercise of discretion by the

regulators under the statutes conferring their authority, and it

became important to determine whether the regulators were

exercising the discretion conveyed by the regulation under their

organic statute. If they were acting contrary to the regulatory

scheme, they were not exercising appropriate discretion. 

Here the issue is quite different. The regulated party

(the Navy) is not exercising or purporting to exercise discretion

under the regulatory statutes. The Navy’s discretion comes from an

entirely different source, namely, its authority to conduct

military operations. Just as the Navy cannot claim to exercise

discretion under the regulatory statutes, its discretion under

military statutes likely cannot be cabined by the dictates of the

regulatory statutes. In other words, we think that the rule of

Gaubert may well be inapplicable to mandatory directives aimed at

a regulated party, where the regulated party is not exercising

discretion under the mandatory statute or regulation. We also

perceive that there is a particularly strong argument for limiting

the rule of Gaubert where the exercise of military authority is

involved, in view of the numerous cases cautioning the courts to

avoid interfering with the exercise of discretionary military

authority. See, e.g., United States v. Shearer, 473 U.S. 52, 57
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(1985) (“civilian court [should not] second-guess military

decisions”). See also United States v. Muniz, 374 U.S. 150, 162

(1963), United States v. Brown, 348 U.S. 110, 112 (1954).

Applying the rule of Gaubert to regulated entities, as

well as to regulatory entities, would create an anomaly. If the

regulators were the defendants, Gaubert would then apply only if

they were acting clearly contrary to the statute or regulation. If

the regulated entities were sued, they would have been bound to

follow not only the plain language of the statute or regulation,

but also the interpretation of the regulatory entity under Chevron,

U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984), and

United States v. Cleveland Baseball Co.. 532 U.S. 200, 219 (2001).

The FTCA would become a medium for enforcing the entire regulatory

scheme, including the discretionary decisions of the regulatory

agency, an eventuality that Congress likely did not contemplate

when it enacted the FTCA. 

However, we need not decide the difficult question

whether the rule of Gaubert is inapplicable to regulated parties

for we conclude that the Gaubert rule is inapplicable here for

other reasons.

We turn to the three statutes that plaintiffs claim were

violated here.
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III.

A. The Clean Water Act

Plaintiffs first rely on alleged violations of the Clean

Water Act (“CWA”), 33 U.S.C. § 1251-1387 (2000). The CWA prohibits

discharging pollutants into the ocean without a National Pollutant

Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§

1311(a), 1323(a). The plaintiffs argue that the Navy was required,

under the CWA, to obtain a valid NPDES permit before conducting

ship-to-ship and ship-to-shore live fire exercises, because those

exercises risked discharging pollutants in to the waters around

Vieques. The plaintiffs also argue that the Navy did not have a

valid permit. We conclude that the Navy had a valid NPDES permit,

and thus did not violate any mandatory CWA requirement.

In United States v. Zenón-Encarnación, 387 F.3d 60, 63-64

(1st Cir. 2004), this court addressed the validity of the Navy’s

NPDES permit for the AFWTF. The appellant was convicted of

entering one of the AFWTF firing ranges, which the Navy had

designated a “danger zone” closed to the public. The appellant

argued that the Navy lacked a valid NPDES permit, and thus that it

lacked authority under the pertinent regulations to designate the

area a “danger zone.” Id. at 63. The court held that:

The Navy received a valid NPDES permit in

1984. That permit expired in 1989, and the

Navy applied to the Environmental Protection

Agency (“EPA”) for a new permit. The EPA

deemed the application complete but failed to

act on it. Under the applicable regulation,
 Plaintiffs below also raised FTCA claims based on 4

violations of the CWA requirements other than its permitting

requirement. They do not pursue these claims on appeal.

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this failure means that the 1984 permit

continued in force despite its expiration.

Id. at 63 (internal quotations omitted). The court affirmed the

district court’s conclusion that the 1984 NPDES permit continued in

effect through April 9, 2002 (the date the defendant was found in

the restricted area). The district court found that the permit

remained in effect until “[t]he Navy . . . formally withdrew its

permit renewal application . . . in a letter dated April 21, 2003.”

United States v. Zenón, 285 F. Supp. 2d 109, 115 (D.P.R. 2003),

vacated on other grounds, Zenón-Encarnación, 387 F.3d at 67.

We see no basis for disagreeing with Zenón’s holding that

the Navy had a valid permit, nor with the district court’s holding

that the permit remained in effect until April, 2003. Although the

plaintiffs are not bound under the doctrines of res judicata or

collateral estoppel, they make no effort to demonstrate error in

the earlier cases’ conclusions. We therefore hold that the Navy’s

actions were in compliance with the statute; the discretionary

function exception applies; and the plaintiffs’ claims were

properly dismissed.4

B. The Resource Conservation and Recovery Act

The plaintiffs next rely on RCRA, 42 U.S.C. § 6901, et

seq. (2000). They argue that the Navy violated a mandatory RCRA
 See also H.R. Rep. No. 94-1491, pt. 1 at 3 (1976) (RCRA 5

was enacted to address “the overriding concern of . . . the effect

on the population and the environment of the disposal of discarded

hazardous wastes–those which by virtue of their composition or

longevity are harmful, toxic or lethal.”).

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requirement by operating the open burning/open detonation facility

at the AFWTF without a valid RCRA permit.

“RCRA is a comprehensive environmental statute that

governs the treatment, storage, and disposal of solid and hazardous

waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996).5

Congress delegated to the EPA primary authority to implement and

enforce the provisions of RCRA. Chicago v. Evt’l Def. Fund, 511

U.S. 328, 331 (1994) (“RCRA . . . empowers EPA to regulate

hazardous wastes from cradle to grave.”). Among other things, RCRA

regulates “hazardous waste treatment, storage and disposal

facilities” (“TSDFs”). 42 U.S.C. § 6924. A RCRA permit from the

EPA is required in order to lawfully operate a TSDF. 42 U.S.C. §

6925(a). It is undisputed that the Navy’s facility on Vieques

qualified as a TSDF under the statute.

The parties agree that the Navy timely initiated the

first step in the permit application process, and in so doing

obtained “interim” permit status that allowed the Navy to operate

the facility lawfully for a time. See 42 U.S.C. §§ 6925(e),

6930(a); 40 C.F.R. § 270.70(a) (2000). The primary dispute is

whether the Navy timely initiated the second stage in the
The question here appears to turn on whether, under the 6

pertinent regulations, the open burning/open detonation facility

was fairly classified as a hazardous waste “treatment” facility, as

opposed to a “land disposal” or “incinerator” facility. See 40

C.F.R. § 260.10. If the latter, then the second part of the Navy’s

RCRA permit application was untimely, and its interim permit status

was revoked. See 42 U.S.C. § 6925(e)(2); 40 C.F.R. § 270.73(f).

The district court found that the open burning/open detonation

facility was properly classified a “treatment” facility under the

RCRA regulations, and that consequently the Navy timely completed

the second step in the permitting process and retained its interim

permit status until the AFWTF was shut down.

 499 U.S. at 324 (holding that applicability of the 7

discretionary function exception turns on whether challenged

conduct “will be deemed in furtherance of the policies which led to

the promulgation of the regulation”).

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permitting process. But the plaintiffs also urge that the Navy 6

violated RCRA in other respects. We need not resolve these complex

questions of RCRA compliance because we conclude that the Gaubert

line of cases is inapplicable to this situation. 

As we have noted earlier, where suit under the FTCA is

brought against the regulated entity there is a potential conflict

between enforcement by the agency charged by Congress with

enforcement responsibility and what amounts to indirect enforcement

of the same statutory requirements through the FTCA. We conclude

that at a minimum, it is necessary under such circumstances to

determine whether the imposition of damages liability on the

regulated entity under the FTCA would undermine the policies of the

regulatory statute. Indeed, Gaubert itself recognized the

important role played by the policies of the mandatory statutes.7

Under the FTCA, the Tucker Act and other statutes
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providing remedies against the United States, the Supreme Court and

the courts of appeal have repeatedly recognized that the waiver of

sovereign immunity reflected in various statutes must be

interpreted in light of significant policies reflected in other

related federal statutes. Thus, for example, the Feres doctrine

precludes a FTCA remedy for actions by the military when Congress

has created an alternative remedial scheme, because the FTCA

“should be construed to fit . . . into the entire statutory system

of remedies against the Government to make a workable, consistent

and equitable whole.” Feres v. United States, 340 U.S. 135, 139

(1950). The Tucker Act has been held inapplicable where Congress

has provided alternative remedies under other statutes. E.g., Lion

Raisins, Inc., v. United States, 416 F.3d 1356, 1372-73 (Fed. Cir.

2005). Most pertinently, the Back Pay Act (“BPA”), allowing suit

by improperly discharged federal employees for back pay, has been

held inapplicable to employees who were denied a remedy under

another statute--the Civil Service Reform Act (“CSRA”). United

States v. Fausto, 484 U.S. 439 (1988). The Court reasoned that

“[t]he CSRA established a comprehensive system” that

“deliberate[ly] exclu[ded]” the employees who sought to invoke the

BPA, and that allowing those employees to obtain judicial review

under the BPA would undermine the “considered congressional

judgment” in the CSRA to preclude such review. Id. at 448, 455. 

We think that this same principle is applicable here as
See also West v. Gibson, 527 U.S. 212, 222 (1999); Lane 8

v. Pena, 518 U.S. 187, 192 (1996).

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well. Imposing liability under the FTCA because of the failure of

a federal employee to comply with a mandatory directive is not

permissible if the imposition of such liability on a regulated

entity would undermine the purposes of the regulatory statute

creating the mandatory directive.

In short, when evaluating plaintiffs’ contentions that

the violation of mandatory requirements implies a waiver of

sovereign immunity under the FTCA, we must refrain from imposing

liability on the government when doing so would subvert a

congressional decision to preclude regulated entity liability in

the statute creating the mandatory directive. This is in keeping

with our obligation to construe such waivers narrowly and to

resolve any ambiguity or uncertainty in favor of immunity. United

States v. Williams, 514 U.S. 527, 531 (1995).8

Here allowing recovery of compensatory damages under the

FTCA for RCRA violations would adversely affect the RCRA statutory

scheme. This is not a situation in which Congress simply left

unaddressed the question of damages liability under the mandatory

statute. Rather, we deal here with a situation in which Congress

affirmatively decided to limit the available remedies and to

preclude compensatory damages. In RCRA, Congress directly

addressed the role of private parties in the enforcement of the
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statute. The RCRA citizen-suit provision allows “any person” to

commence an action to prevent an “imminent and substantial

endangerment to health or the environment.” 42 U.S.C. § 6972(a).

The provision confers jurisdiction on district courts to “restrain”

violations and order persons to “take other such action;” thus it

confers jurisdiction over suits for injunctive relief. Id.;

Meghrig v. KFC Western, Inc., 516 U.S. 479, 484-85 (1996). The

district courts may also impose civil penalties for RCRA

violations. 42 U.S.C. §§ 6972(a), 6928(a).

In Meghrig the Supreme Court addressed the availability

of compensatory damages. There plaintiff property owners sued

former owners of the property under RCRA to recover the costs of

cleaning up a petroleum contamination. Meghrig, 516 U.S. at 481-82

(1996). The Court noted that RCRA’s “elaborate [enforcement]

scheme” is directed solely toward correcting existing or future

harms by restraining them, and that RCRA must be read to preclude

actions for damages. Meghrig, 516 U.S. at 484-85 (1996). The

Court found that RCRA makes clear that any private action is

precluded if the “EPA or the State has commenced, and is diligently

prosecuting, a separate enforcement action.” Id. at 486. If the

private actions allowed under RCRA included actions for

compensatory damages, the Court reasoned, those parties with

substantial grievances who were most deserving of a damages award--

the ones suing over violations grave enough to attract the
 In an analogous situation, the Supreme Court reasoned 9

that the CSRA could not logically be read to deny judicial review

to employees eligible for veterans’ preference (“preferential

employees”), but at the same time grant nonpreferential employees

access to such review, because such a reading would undermine the

preference system, result in an “inverted preference,” and favor

“random categories of employees.” Consequently, the Court held that

the CSRA precluded judicial review for nonpreferential employees.

Fausto, 484 U.S. at 449-51.

 The Court also held that the RCRA savings clause, 42 10

U.S.C. § 6972(f), which allows persons to “seek . . . relief” that

they may have “under any statute or common law,” merely preserves

causes of action under state law, and does not authorize a new

substantive RCRA cause of action for damages. Meghrig, 516 U.S. at

487.

-22-

attention of State or federal regulators--would be precluded from

recovery, whereas parties with grievances that were not substantial

enough to warrant State or EPA enforcement, would be able to

recover in damages. Id. at 486-87. “Therefore, if RCRA were 9

designed to compensate private parties for their past cleanup

efforts, it would be a wholly irrational mechanism for doing so.”

Id. at 486.10

Furthermore, Congress has manifested its desire to limit

RCRA damage suits against the government in particular. In 1992,

the Supreme Court held that RCRA’s remedial scheme did not waive

the government’s immunity from punitive fines imposed by state law.

U.S. Dept. of Energy v. Ohio, 503 U.S. 607, 627-28 (1992). Later

that year, Congress amended the RCRA citizen-suit provision to

expressly waive immunity over such fines, waiving sovereign

immunity for “all civil and administrative penalties and fines,
In the complaint, plaintiffs stated that “[plaintiffs] 11

are citizens covered under [RCRA],” and “24 U.S.C. § 6972(a)(1)(A)

of this act [the RCRA citizen-suit provision] allows for civil

actions for violation of any requirement of RCRA,” and “Plaintiffs

allege that the defendants have violated [RCRA].”

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regardless of whether such penalties or fines are punitive or

coercive in nature or are imposed for isolated, intermittent, or

continuing violations.” Pub. L. 102-386, 106 Stat. 1505 (October

6, 1992). However, Congress made it clear that, in permitting the

recovery of civil fines for RCRA violations, it did “not intend .

. . in any manner to authorize civil tort actions against the

federal government for damages.” H. Rep. No. 102-111, at 15

(1991), as reprinted in 1992 U.S.C.C.A.N. 1301.

If an action based on the FTCA were allowed here, the

district court would effectively be enforcing RCRA under the guise

of a FTCA claim. We think that allowing the recovery of damages in

a FTCA suit, based on the violation of a mandatory permitting

requirement under RCRA, would undermine the intent of Congress to

preclude compensatory damages awards for RCRA violations.

There is, moreover, reason to be concerned that the FTCA

suit here was specifically designed to achieve an end run around

the strict limitations placed by Congress on private damages

actions under RCRA. The complaint here originally alleged

violations of RCRA itself. While these direct RCRA claims were 11

eventually dismissed, the plaintiffs nonetheless continued to urge

that the state-law claim enforceable under the FTCA should
 For example, in defending against the government’s 12

motion to dismiss, the plaintiffs state that “Puerto Rico tort law

recognizes that under certain circumstances the violation of a

statute or regulation can itself constitute negligence,” that “the

language of the FTCA does not mandate that state law be applied

when the state courts themselves would be required to refer to and

apply federal law to determine . . . liability,” and that the

district court should not “preclude Plaintiff from establishing

Defendants’ violations under RCRA.”

-24-

incorporate the RCRA standard of liability. They now seek to 12

overcome the discretionary function exception by alleging that the

Navy violated RCRA. From a policy standpoint, this is very little

different from pursuing a federal damages action in the teeth of

Congress’s refusal to create a private cause of action. Although

RCRA does not preempt remedies under state law, we are at the same

time disinclined to construe Congress’s waiver of immunity under

the FTCA to allow a suit Congress so clearly disfavored.

We conclude that a damage action under the FTCA is not

available against the Navy, based on a RCRA violation.

C. The Noise Control Act

The plaintiffs’ final argument is that the discretionary

function exception is inapplicable because the Navy’s live-fire

exercises violated mandatory requirements imposed by the Noise

Control Act (“NCA”), 42 U.S.C. § 4901-4918 (2000). Section 4 of

the NCA provides, in pertinent part, that

Each department, agency, or instrumentality

of the executive, legislative, and judicial

branches of the federal government – 

(1) having jurisdiction over any property or

facility, or
-25-

(2) engaged in any activity resulting, or

which may result, in the emission of noise,

shall comply with Federal, State, interstate,

and local requirements respecting control and

abatement of environmental noise to the same

extent that any person is subject to such

requirements.

42 U.S.C. § 4903(b) (2000).

The plaintiffs argue that section 4 of the NCA requires

the Navy to comply with the Puerto Rico Noise Prohibition Act,

which imposes a mandatory limitation on sound emissions. The

Puerto Rico Noise Prohibition Act of 2001, 24 P.R. Stat. § 3635(2),

provides that “[n]o person may cause or permit the emission of a

sound either in air or in water which . . . propagates into the

waters of Puerto Rico . . . a peak sound pressure level equal to or

in excess of 190 dB re 1-m-Pa.” The Puerto Rico legislature

appears to have enacted this provision to deal specifically with

noise emissions from the Navy’s live-fire exercises on Vieques

Island. See 24 P.R. Stat. § 3632 (“Findings”). 

The plaintiffs contend that the NCA coupled with the

Puerto Rico statute constitute a mandatory directive governing the

Navy’s activities at the AFWTF, rendering the discretionary

function exception inapplicable. We reject this contention because

the NCA does not make the Puerto Rico statute applicable to the

Navy. In Romero-Barceló, 643 F.2d at 854-55, this court held that

section 4 of the NCA was only intended to subject the federal

government to state and local “requirements” similar to “the
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federal requirements enforceable under § 12 [of the NCA] . . . .”

Section 12 of the NCA, codified at 42 U.S.C. § 4911 (2000),

provides for citizen suits to enforce “noise control requirements.”

Section 12 defines “noise control requirement” by reference to:

several provisions of the [NCA] which provide

for (a) standards, rules or regulations

controlling the noise emissions of motor

carriers, railroads and aircraft, [42 U.S.C.]

§§ 4916, 4917; 49 U.S.C. § 1431, (b)

labelling regulations, 42 U.S.C. § 4907, and

(c) noise emissions standards applicable to

specified domestic and imported products, id.

§§ 4905, 4908.

Romero-Barceló, 643 F.2d 855.

The noise that plaintiffs complain of here is generated

by military weapons and ordinance. The federal requirements

applicable to noise emissions by products, however, expressly

exclude “any military weapons or equipment which are designed for

combat use.” 42 U.S.C. § 4902(3)(B)(i). Pursuant to our

interpretation of section 4 of the NCA in Romero-Barceló, we

conclude that the statute does not make the Puerto Rico Noise

Prohibition Act applicable to the Navy’s use of “military weapons

or equipment,” since the statute makes clear that no federal

requirements are applicable to such activities. The NCA did not

impose mandatory standards on the Navy’s live-fire exercises. 

Accordingly, we hold that the NCA does not render the

discretionary function exception inapplicable.

IV.
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In summary, we conclude that none of the plaintiffs’

statutory arguments renders the discretionary function exception

inapplicable. We conclude that the district court correctly

dismissed the suits for lack of subject-matter jurisdiction. In

light of our jurisdictional holding, we have no occasion to address

the plaintiffs’ statute-of-limitations or causation arguments.

Because we hold that subject-matter jurisdiction was lacking as a

matter of law, additional jurisdictional discovery would not have

benefitted the plaintiffs, and the denial of such discovery was not

error.

The decision of the district court is

Affirmed.