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    Oceanview Farms v. United States, 4th Cir. (2000)

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of Oceanview Farms' third party claim against the United States and NRCS for negligently designing its wastewater storage lagoon. The district court found it lacked subject matter jurisdiction because the design of the lagoon fell under the discretionary function exception to the Federal Tort Claims Act. The Court of Appeals agreed that although the NRCS engineers' design decisions involved technical engineering judgments, the design considerations were susceptible to policy analysis regarding effectiveness, safety, cost, and environmental impact. Therefore, the design fell within the discretionary acts protected from liability under the discretionary function exception.

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    Oceanview Farms v. United States, 4th Cir. (2000)

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of Oceanview Farms' third party claim against the United States and NRCS for negligently designing its wastewater storage lagoon. The district court found it lacked subject matter jurisdiction because the design of the lagoon fell under the discretionary function exception to the Federal Tort Claims Act. The Court of Appeals agreed that although the NRCS engineers' design decisions involved technical engineering judgments, the design considerations were susceptible to policy analysis regarding effectiveness, safety, cost, and environmental impact. Therefore, the design fell within the discretionary acts protected from liability under the discretionary function exception.

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    Filed: 2000-05-03 Precedential Status: Non-Precedential Docket: 99-2096

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of Oceanview Farms' third party claim against the United States and NRCS for negligently designing its wastewater storage lagoon. The district court found it lacked subject matter jurisdiction because the design of the lagoon fell under the discretionary function exception to the Federal Tort Claims Act. The Court of Appeals agreed that although the NRCS engineers' design decisions involved technical engineering judgments, the design considerations were susceptible to policy analysis regarding effectiveness, safety, cost, and environmental impact. Therefore, the design fell within the discretionary acts protected from liability under the discretionary function exception.

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    35 views4 pages

    Oceanview Farms v. United States, 4th Cir. (2000)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of Oceanview Farms' third party claim against the United States and NRCS for negligently designing its wastewater storage lagoon. The district court found it lacked subject matter jurisdiction because the design of the lagoon fell under the discretionary function exception to the Federal Tort Claims Act. The Court of Appeals agreed that although the NRCS engineers' design decisions involved technical engineering judgments, the design considerations were susceptible to policy analysis regarding effectiveness, safety, cost, and environmental impact. Therefore, the design fell within the discretionary acts protected from liability under the discretionary function exception.

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    of 4

    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 pro2

    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

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