F I L E D

United States Court of Appeals

Tenth Circuit

JUN 23 1998

PUBLISH
UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

DOMINGO ARAGON; EVA ARAGON; LEWIS

AUDET; ANNE AUDET; VIRGINIA BARTLETT;
BOB C. BECK; INEZ BECK; BILLY BROWN;
CHRISTA BROWN; CLEMENTE CABRIOLES;
MANUEL CERECERES; ROSEMARY DEAN; EVA
GOMEZ; ETHEL LOGAN; CAREY LOGAN;
BENITO MARTINEZ; EPIFANIA MARTINEZ;
M.C. MCDONALD; SHIRLEY MCDONALD; TOM
MAGGART, JR.; STEVE OLDFIELD; TAMMY
OLDFIELD; G.R. PARTIN; MOLLY PARTIN;
RICHARD PRESCOTT; ROY PRESCOTT; FRANK
RHYMES; RITA RHYMES; FERN ROWDEN;
DARRYL SAMPLES; MARY SAMPLES;
ROSALINDA SOSA; JOE TORRES; DESTRY
TUCKER; DANA TUCKER,

No. 97-2047

Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court

for the District of New Mexico
(D.C. No. CIV-94-592-JP)
Richard A. Blenden (Daniel R. Dolan and Pete V. Domenici, Jr. of Dolan &

Clerk

Domenici, Albuquerque, New Mexico, with him on the brief) of Blenden Law
Firm, Carlsbad, New Mexico, for Plaintiff-Appellants.
S. Michael Scadron (Frank W. Hunger, Assistant Attorney General; John J. Kelly,
United States Attorney; John Zavitz, Assistant United States Attorney; and J.
Patrick Glynn, Joann J. Bordeaux, David S. Fishback, and J. Charles Kruse of the
Department of Justice with him on the brief) of the Department of Justice,
Washington, D.C., for Defendant-Appellee.
Before TACHA, BRORBY, and BRISCOE, Circuit Judges.
BRORBY, Circuit Judge.

The plaintiffs-appellants, Mr. Domingo Aragon and other landowners

residing southeast of the former Walker Air Force Base (Plaintiffs), filed a tort
action pursuant to the Federal Tort Claims Act, 28 U.S.C. 1346(b)(1), 26712680, alleging negligence and negligence per se relating to the contamination of
their residential water wells. 1 The Government answered the complaint and filed
a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1), claiming the discretionary function exception to the Tort Claims Act, 28
U.S.C. 2680(a), barred the action. After a four-day bench trial focusing on the
discretionary function exception, the district court dismissed the case for lack of
The Plaintiffs action also included civil rights claims for deprivation of
property, inverse condemnation, and appropriation without due process and
without compensation. The parties do not address these claims on appeal.
1

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subject matter jurisdiction. 2 The Plaintiffs appeal the district court's dismissal.
We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I. Background
In 1942, the military established an airbase on the outskirts of Roswell,
New Mexico, to train Army Air Corps pilots for World War II. In 1949, the base
was redesignated Walker Air Force Base (the "Base"), and became a Strategic Air
Command Post. The Base was used by the United States Air Force during the
Korean Conflict for flying and supporting reconnaissance missions. The Base
also was prepared to assist Strategic Air Command war planes bombard strategic
targets in the event of war. In the 1960s, the Bases mission expanded to support
United States military efforts in Vietnam.

Throughout this time, the military washed aircraft and aircraft engines with
trichloroethylene ("TCE"), on or near Base runways. TCE is a toxic organic
solvent, known to be used by the military as a degreasing agent. At least every
other day a squadron of fourteen aircraft were washed on ready-alert pads
This bench trial was held pursuant to the district courts bifurcation and
scheduling order dated October 6, 1995. The district court bifurcated damage
issues from this trial, which focused solely on the discretionary function
exception and related liability issues.
2

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located near the runways. These planes were used for special missions designed
to gather information on how close aircraft could fly over a nuclear detonation
without being contaminated. The planes were washed immediately after returning
from their missions to remove radioactive debris and dust. The resulting TCEcontaminated waste water flowed into ditches and unlined detention basins
located near the Bases east boundary. 4

In 1967, the government deactivated the Base, and in 1968, deeded most of
the site to the City of Roswell. In 1991, the New Mexico Environmental
Department detected TCE in the Plaintiffs' wells located near the Bases east
boundary. The Army Corp of Engineers subsequently identified the probable
source of contamination as the Base site.

In August 1993, the Plaintiffs filed claims with the Air Force for
compensation, which were subsequently rejected. The Plaintiffs then filed this
action against the United States under the Federal Tort Claims Act, requesting
damages for personal injuries, emotional distress, diminution in property values,
and other related compensation. The Plaintiffs countered the Governments
Plaintiffs identified other possible sources of TCE contamination within
the Base. Our analysis, however, is unaffected by the precise number or location
of TCE sources.
4

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motion to dismiss by claiming Air Force manuals, regulations, and New Mexico
state law imposed a mandatory, nondiscretionary duty on the Air force to consider
the effects of waste water disposal on groundwater and to dispose of its waste
water so as to avoid groundwater pollution. In addition, the Plaintiffs claimed the
decisions on how to dispose of TCE are not the type of policy decisions the
discretionary function exception was designed to protect. The district court
rejected the Plaintiffs contentions and dismissed their complaint. The Plaintiffs
appeal, relying on essentially the same arguments they presented to the district
court.

II. Analysis
The Federal Tort Claims Act waives sovereign immunity for actions against
the United States resulting from injuries caused by the negligent acts of
governmental employees while acting in the scope of their employment. 28
U.S.C. 1346(b)(1). The United States can be held liable in the same manner
and to the same extent as a private individual under like circumstances. Id.
2674. Excluded from the Tort Claims Acts broad waiver of immunity are
claims based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty by a federal agency or a federal
governmental employee. Id. 2680(a). This exception marks the boundary
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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. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). The exception applies
even if the governmental employees were negligent. Allen v. United States, 816
F.2d 1417, 1421 (10th Cir. 1987), cert. denied, 484 U.S. 1004 (1988).

The discretionary function exception poses a jurisdictional prerequisite to

suit, which the plaintiff must ultimately meet as part of his overall burden to
establish subject matter jurisdiction. Miller v. United States, 710 F.2d 656, 662
(10th Cir.) (quoting Baird v. United States, 653 F.2d 437, 440 (10th Cir. 1981),
cert. denied, 454 U.S. 1144 (1982)), cert. denied, 464 U.S. 939 (1983). We
review de novo whether this exception applies to the undisputed facts in this case.
Duke v. Department of Agric., 131 F.3d 1407, 1409 (10th Cir. 1997).

In determining whether the discretionary function exception applies to the

challenged conduct, we use the two-pronged analysis provided by the United
States Supreme Court in Berkovitz v. United States, 486 U.S. 531, 536 (1988).
Duke, 131 F.3d at 1409. Since the exception covers only those acts involv[ing]
an element of judgment or choice, we must first determine if "a federal statute,
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regulation, or policy specifically prescribes a course of action for an employee to

follow. Berkovitz, 486 U.S. at 536. This Court requires the prescribed course
of conduct be specific and mandatory. See, e.g., Daigle v. Shell Oil Co., 972 F.2d
1527, 1540 (10th Cir. 1992) (ruling general health and safety policies underlying
CERCLA response actions provided discretion because they were not couched in
terms of specific and mandatory directives); Allen, 816 F.2d at 1421 (concluding
the Atomic Energy Commissions general statutory duty to consider public health
and safety when conducting open air atomic bomb tests was broad and
discretionary). If a federal statute, regulation or policy imposes specific,
mandatory directives, conduct pursuant to those directives is not discretionary
since the employee has no rightful option but to adhere to the directive.
Berkovitz, 486 U.S. at 536. However, if the employees conduct involves a
matter of choice or judgment, then the action is discretionary, and we proceed to
the second prong of our analysis. Id.

Under the second prong of the Berkovitz test, we must determine whether
the exercise of judgment or choice at issue is of the kind that the discretionary
function exception was designed to shield. Id. [O]nly governmental actions
and decisions based on considerations of public policy are protected by the
exception. Id. at 537. This limitation is consistent with Congress [desire] to
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'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. (quoting Varig, 467 U.S. at 814).

A. Discretionary Conduct
We now apply Berkovitz to the present facts. The Plaintiffs contend the Air
Force violated specific, mandatory requirements to cooperate with state and local
officials to prevent water pollution, and to dispose of TCE in such a manner to
avoid polluting groundwater, as set forth in Executive Order 10014, Air Force
Manuals 85-14 (Maintenance and Operation of Sewage and Industrial Plants and
Systems (1959)) and 88-11 (Sewage, Refuse and Industrial Waste) (1956)), Air
Force Regulation 91-9 (Utilities Operation and Services: Sewage and Industrial
Waste Works (1950, 1953, 1958, 1965)), and New Mexico state law. 5
Accordingly, the Plaintiffs maintain the government's conduct was not within the
discretionary function exception. We review each document in turn to determine
The Plaintiffs urge this court to rely on Clark v. United States, 660 F.
Supp. 1164 (W.D. Wash. 1978), affd, 856 F.2d 1433 (9th Cir. 1988), to rule the
Air Force was required by its manuals to consider the effect of ground water in
disposing its industrial waste. However, we decline for the principal reasons that
Clark (1) is factually distinguishable and involved legal provisions and
Washington state law not applicable in the present case, and (2) having been
decided prior to Berkovitz, the analysis in Clark strays significantly from
presently accepted discretionary function analysis. Clark simply has no
precedential value in this circuit.
5

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whether, indeed, any of the documents prescribed a specific, mandatory course of

conduct regarding the disposal of waste water from aircraft washdown operations
at the Base.

Executive Order 10014

Executive Order 10014 directed
heads of the departments, agencies, and independent establishments
of the executive branch ... to take such action as may be practicable,
in cooperation with State and local authorities ... to insure the
disposal of sewage, garbage, refuse, and other wastes accumulated in
the course or as a result of Federal activities ... in such manner as
will conform with programs formulated under State law....
Exec. Order No. 10014, 13 Fed. Reg. 6601 (1948) (emphasis added). Although
the Plaintiffs concede Order 10014 gave discretion to the Air Force as to which
method it chose to dispose of its waste water, the Plaintiffs suggest Order 10014
did not permit the Air Force to do nothing and to pollute the groundwater. In
other words, the Plaintiffs contend Order 10014 did not permit the Air Force
simply to run its TCE-contaminated waste water into an open ditch.

By its express language, Executive Order 10014 required the Air Force to
take action only as practicable. Exec. Order No. 10014, 13 Fed. Reg. 6601
(1948). A]s may be practicable is a prime example of discretionary language,
which gave federal agencies a choice or judgment on what action to take, if any.
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It is clear the Order promoted a policy of cooperation with state and local water
authorities; however, the Order alone contained no specific, mandatory directives
for the Air Force to follow in disposing its waste water from aircraft washdown
operations. See Daigle, 972 F.2d at 1540; Allen, 816 F.2d at 1421. Moreover,
with respect to the Plaintiffs argument that Order 10014 did not permit the Air
Force to simply do nothing, the record fails to support the Plaintiffs suggestion
the Air Force never considered the impact of its method for disposing the TCEcontaminated waste water on groundwater pollution. Thus, the Plaintiffs cannot
rely on Order 10014 to establish jurisdiction under the Federal Tort Claims Act.

Air Force Manual 85-14

The Plaintiffs next contend federal standards in effect when Order 10014
applied determined what methods of disposal were practicable, and therefore
prescribed standards for the Air Force to follow to avoid groundwater pollution.
The Plaintiffs rely, in part, on Air Force Manual 85-14 (1959) to support their
contention the Air Force had identified practicable methods to dispose of its
toxic wastes, which could not be ignored pursuant to Order 10014. They refer to
E1.02, which states [t]he installations engineer, in accordance with AFR 91-9,
will supervise the treatment and disposition of industrial wastes, which will be
accomplished in a manner meeting anti-pollution requirements established by
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State control agencies. AFM 85-14 E1.02. They also refer to E1.03b, which
states the [d]ischarge of [industrial waste] must be stringently controlled. In
addition, the Plaintiffs refer to E1.04d, which states wastes produced in the
cleaning of aircraft ... pollute potable water. Id. E1.04d. Lastly, they refer to
E2.01a, which states "[o]pen carrier ditches and canals must not be used for the
collection of industrial wastes involving fire or explosion hazards or odor
nuisance. Id. E2.01a. The Plaintiffs suggest a fair reading of these
provisions imposes a specific, mandatory duty on the Air Force to handle TCE in
a reasonable manner, which prohibits running it into an unlined ditch and pit.

We first address the Manual generally, and then evaluate the particular
sections the Plaintiffs cite. An agency manual, in contrast to a regulation, is not
necessarily entitled to the force and effect of law. See Schweiker v. Hansen, 450
U.S. 785, 789 (1981) (per curiam) (ruling a Social Security Claims Manual not
binding on the government). This is particularly true if the agency did not intend
the manual to be mandatory, but rather intended it as a guidance or advisory
document. See Hamlet v. United States, 63 F.3d 1097, 1103-05 (D.C. Cir. 1995)
(holding agency personnel manual not binding if, among other factors, the agency
did not intend for it to be binding). Air Force Manual 85-14 specifically states it
is intended for guidance and [b]ecause of the varied nature of industrial
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problems, principles rather than practices are emphasized. AFM 85-14, E1.01
(Purpose and Scope). This express qualification weighs heavily against ruling the
Manual prescribed mandatory directives for the Air Force to follow.

Furthermore, we find no specific, mandatory directives in the particular

sections cited by the Plaintiffs. Consistent with the Manuals purpose and scope,
those sections provide Air Force personnel discretion in their decisions on how to
dispose of TCE. For example, under E1.02, the installation engineer's
supervision of industrial waste disposal is governed by Air Force Regulation 91-9
(1953). AFM 85-14, E1.02. Air Force Regulation 91-9 requires installation
commanders to cooperate with civil authorities on state stream abatement
programs to prevent water pollution and to comply with state water contamination
standards. AFR 91-9, 8 (1958). At the outset, we question whether this
regulation applied to the challenged conduct at all since it pertained to state
stream abatement programs, not to isolated ditches and groundwater.

Nevertheless, we fail to find any support in the record that the installation
commander did not cooperate with state officials. In addition, the Plaintiffs fail
to bring to our attention any New Mexico water quality standards in effect during
the Base operations, and which provided specific, mandatory directives pertaining
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to TCE disposal.

The Plaintiffs do refer to a New Mexico public nuisance statute in effect

during the Base's operations, which prohibited the knowing and unlawful
introduction of any substance into a public water body causing the water to be
dangerous for human consumption. N.M. Stat. Ann. 40A-8-2 (1953) (recodified
as N.M. Stat. Ann. 30-8-2 (1978)). We cannot equate this broad public
nuisance statute to specific, mandatory water quality standards. In addition, the
Plaintiffs cite no evidence in the record indicating the Air Force knowingly and
unlawfully introduced TCE into a public water body. The Air Force disposed of
TCE-contaminated waste water in isolated unlined ditches or basins. Although
the Army Corps of Engineers opine TCE ultimately seeped into the underground
aquifer, which constitutes a body of public water under the statute, N.M. Stat.
Ann. 30-8-2 (1978), the record does not support the Plaintiffs' contention the
Air Force acted knowingly and unlawfully. Finally, and most important, even if
state standards had existed, or the nuisance statute somehow created a standard,
existing Air Force Regulation 91-9 expressly provided Air Force personnel with
discretion to resolve any conflict in favor of Air Force policy.

Returning our attention to Air Force Manual 85-14, E1.03 states the
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discharge of toxic wastes must be "stringently controlled." AFM 85-14 E1.03.

Section E1.04d. acknowledges that solvents used in cleaning aircraft pollute
potable water. Id. E.01d. However, these sections do not prescribe specific,
mandatory waste water disposal methods or treatment procedures. 6 With regard to
the aircraft washdown operations at issue, the Manual states [t]he only treatment
ordinarily required for aircraft wash water wastes is to remove free oils and
greases. Id. 4.04. The treatment and disposal of organic solvents is not even
mentioned.

Lastly, we consider E2.01a, which prohibits the use of open carrier

ditches to collect industrial wastes involving fire or explosive hazards, or odor
nuisance. Id. E2.01a. The record indicates TCE generally does not involve fire
or explosive hazards. The Plaintiffs provided no evidence TCE involves an odor
nuisance. Based on the record, we fail to see how this section in any way
specifically directed the disposal of the aircraft waste water at issue.

Instead, the Manual clearly states wastes are as varied as industrial and
commercial operations themselves, and therefore treatment for each type of waste
must be considered individually. AFM 85-14 E1.04. Likewise, E3.03
specifically provides [t]here is no standard method for treating industrial
wastes, recognizing the differences between industrial sites. Id. E.3.03.
6

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We therefore find nothing in Air Force Manual 85-14 that usurps Air Force
personnel discretion to determine how to dispose of TCE-contaminated waste
water.

Air Force Manual 88-11

The Plaintiffs also rely on Air Force Manual 88-11 (1956) to support their
contention the Air Force had a nondiscretionary duty to dispose of its wastewater
so as to avoid groundwater contamination. Similar to Manual 85-14, Manual 8811 emphasizes principles rather than practices [b]ecause of the varied nature of
industrial waste problems. The Plaintiffs, however, suggest Manual 88-11
requires the Air Force to do whatever may be necessary to protect water resources
from pollution damage under all circumstances. The Manual imposes no such
requirement. Instead, the Manual articulates that the protection of water
resources is the objective of industrial waste disposal. An objective, alone, does
not equate to a specific, mandatory directive. In addition, the Plaintiffs have
provided no evidence the Air Force did not consider this objective in its aircraft
washdown operations.

Furthermore, in working towards its objective, the Manual recognizes

[t]here is no standard method for treating industrial wastes due to the
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complexity and diversity of industrial wastes. AFM 88-11 6-17. Accordingly,

the Manual does not prescribe specific, mandatory conduct. To the extent the
Manual identifies pollution control practices, it uses suggestive, rather than
mandatory language. For example, it suggests [i]ndustrial waste disposal should
be discussed with the state water pollution control agencies. AFM 88-11, 6-05
(emphasis added). The Manual further provides, [i]nformation should be
furnished to the state indicating insofar as practicable the characteristics and
qualities of industrial wastes to be handled. Id. (emphasis added). Most
important, the Manual expressly acknowledges [t]he exigencies of military
operations and security may preclude strict adherence to all of these
recommendations relative to cooperation with the state pollution control
authority. Id. 6-05(c). Manual 88-11 thus left much discretion to those
implementing its recommendations.

In summary, not one of the sources cited by the Plaintiffs provided specific,
mandatory directives for the Air Forces disposal of waste water from the aircraft
washdown operations. Therefore, the Air Forces decision on how it disposed of
its waste water from the washdown operations was discretionary.

B. Public Policy Considerations

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Having concluded the Air Force had discretion regarding its handling and
disposal of wastewater from its aircraft washdown operations, we proceed to the
second prong of the Berkovitz analysis and ask whether that activity was of the
kind that the discretionary function exception was designed to shield. Berkovitz,
486 U.S. at 536. Only decisions and actions based on considerations of public
policy are protected from liability. Id. at 537.

The Plaintiffs contend our evaluation of the Air Force's conduct should
focus on groundwater protection policies, not the broader policies affecting
airbase operations. Therefore, the Plaintiffs claim since the Air Force did nothing
to contain TCE used in aircraft washdown operations, its actions were not based
on considerations of relevant public policy.

We fully agree with the district court on this issue. We have little doubt
... the Air Forces actions involved policy choices of the most basic kind. The
Base operated under military exigencies during World War II, the Korean
Conflict, the Vietnam Conflict, and the Cold War. Operational decisions during
this twenty-five year active period undoubtedly were subject to defense and
security considerations which encompass the heart of military policy. Indeed, the
record makes clear the military recognized it needed flexibility to weigh its
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groundwater protection policies against broader public and military policies; thus
it allowed the Air Force to place security and military concerns above any other
concerns. See, e.g., AFM 88-11, 6-05c. (stating [t]he exigencies of military
operations and security may preclude strict adherence to ... recommendations
relative to cooperation with the state pollution control authority.

We also recognize [w]hen established governmental policy, as expressed

or implied by statute, regulation, or agency guidelines, allows a Government
agent to exercise discretion, it must be presumed that the agent's acts are
grounded in policy when exercising that discretion. United States v. Gaubert,
499 U.S. 315, 324 (1991). Therefore, to survive a motion to dismiss, the
Plaintiffs must have alleged facts which support the finding the governments
actions were not grounded in policy. Id. at 324-25. We focus not on the agent's
subjective intent in exercising the discretion conferred by statute or regulation,
but on the nature of the actions taken and on whether they are susceptible to
policy analysis. Id. at 325. Accordingly, we need not determine what specific
factors led Air Force personnel to dispose of the TCE-contaminated waste water
as it did. The record before us sufficiently demonstrates that Base operational
decisions, including industrial waste disposal decisions, were subject to public
policy analysis due to the military exigencies at the time. Plaintiffs fail to
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provide proof to the contrary. We therefore conclude the Air Forces disposal of
TCE-contaminated waste water at Walker Air Force Base was the kind of activity
the discretionary function is designed to shield. Hence, the discretionary function
applies, and we AFFIRM the dismissal of this case.

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