UNPUBLISHED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 Defendants-
Appellees.

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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Joseph Butler, PARKER, POE, ADAMS & BERN-
STEIN, 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 Attor-
ney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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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 dis-
missed Oceanview Farms' claim for lack of subject matter jurisdic-
tion 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 Con-
servation Service ("NRCS"), a division of the United States Depart-
ment 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-

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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 mil-
lion 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 negli-
gently 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 sov-
ereign immunity provides that the United States is not liable for any
claim "based upon the exercise or performance or the failure to per-
form 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 man-
datory directive. See Appellant's Br. at 48-50. The district court rejected
this argument because the provisions referred to were not actually man-
datory in the way Oceanview Farms suggested.

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cretion was akin to that used by a private engineer in making techni-
cal judgments, not the kind of discretion that would implicate
government policy and that would insulate the United States from lia-
bility under the discretionary function exception.

The district court correctly held that although the NRCS design
decisions involved technical engineering judgments, the design con-
siderations -- 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 consid-
erations 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

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