                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                            APR 26 2005
                       FOR THE TENTH CIRCUIT
                                                       PATRICK FISHER
                                                                 Clerk

RONNIE ROSS, LINDA ROSS,
husband and wife; RICHARD ROWE,
ANGELA ROWE, husband and wife;
LISA EZELL, a single woman;
BARRY TALLEY, CHERYL                         No. 04-6146
TALLEY, husband and wife,              (D.C. No. 03-CV-188-L)
                                             (W.D. Okla.)
        Plaintiffs - Appellants,

      and

LUTHER BAGWELL, LORRA
BAGWELL, husband and wife; GARY
SELPH, PENNY SELPH, husband and
wife; GEORGE GHEGAN, BECKY
GHEGAN, husband and wife;
CHRISTOPHER ALBRECHT,
KAREN ALBRECHT, husband and
wife; GARY BALL, LISA BALL,
husband and wife; WILBUR BALL,
LAURA BALL, husband and wife;
GARRET CLARK, a married man;
MONTE MCKINNEY, a single man;
JEWELL FOSHEE, KRYSTI
FOSHEE, husband and wife; HAMA
BARRETT, RITA BARRETT,
husband and wife; DENVER FORAN,
BEVERLY FORAN, husband and
wife; ANDREW SELPH,
MARGARET SELPH, husband and
wife,

        Plaintiffs,

 v.
    UNITED STATES OF AMERICA,

          Defendant - Appellee.


                           ORDER AND JUDGMENT           *




Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

                                    I. Discussion

       The United States Air Force operated Tinker Air Force Base in Oklahoma

City for decades. Tinker AFB became one of the military’s largest, and was a

central location for aircraft maintenance and repair. Unfortunately, these

operations generated substantial volumes of hazardous waste, including toxic

solvents such as trichloroethylene (TCE). The Air Force’s practice beginning in

the 1940s until the 1980s—as was the practice of most industrial concerns—was


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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to bury the waste in unlined pits or other storage areas on the property. No

special precautions were taken to prevent the waste from migrating to local

neighborhoods.   1



      Plaintiff-appellants are individual residents and landowners in Tinker View

Acres located near the Base. Plaintiffs= complaint was filed in federal court under

the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1) (FTCA), and is based on

Oklahoma negligence and property law. It alleges that the government created a

public and private nuisance when it generated hazardous waste at the Base and

then allowed the waste to permeate the ground water and migrate to their

property. The primary waste complained of is TCE. “TCE is a toxic organic

solvent, known to be used by the military as a degreasing agent.” Aragon v.

United States, 146 F.3d 819, 822 (10th Cir. 1998). Plaintiffs contend that the

government failed to properly dispose of the waste, failed to stop the pollution,

and issued untimely and inadequate warnings. They further argue that the

pollution damaged their property values and may have caused unspecified

personal injuries.

      In response to plaintiffs= complaint, the government filed a motion to


1
  Congress responded to hazardous waste concerns in the 1970s and 1980s by
enacting more stringent environmental laws such as CERCLA (Comprehensive
Environmental Response Compensation and Liability Act), 42 U.S.C. § 9601   et
seq. , and RCRA (Resource Conservation and Recovery Act), 42 U.S.C. § 6901    et
seq. , that now cover most federal facilities.

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dismiss for lack of subject matter jurisdiction, citing the discretionary function

exception to the FTCA and the various federal statutes and regulations under

which officials at the Base operated. The district court granted the motion, and

the plaintiffs appeal. Because we agree with the district court that the activities

complained of are shielded by the discretionary function exception to the FTCA,

we affirm.

                                          A.

      The Federal Tort Claim Act generally removes the protection of sovereign

immunity for the government in cases where government employees have caused

damage by their negligence during the course of their employment. Excluded

from this waiver of immunity, however, are so-called discretionary acts. Thus,

“the waiver of immunity does not apply to ‘any claim . . . 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.’” Kiehn v. United States, 984 F.2d

1100, 1102 (10th Cir. 1993) (quoting 28 U.S.C. § 2680(a)). To determine

whether discretionary conduct applies, we employ a two-step analysis, Berkovitz

v. United States, 486 U.S. 531, 536-37 (1988), and review de novo the district

court’s application of the exception. Aragon, 146 F.3d at 823.




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                                          B.

      The first step under Berkovitz involves a threshold determination that the

government’s challenged conduct was done pursuant to “a federal statute,

regulation, or policy [that] specifically prescribes a course of action for an

employee to follow.” Berkovitz, 486 U.S. at 536. Plaintiffs conceded that no

such statute is involved in this case, and therefore the government=s actions are

considered discretionary.

                                          C.

      We thus move to the second step of the Berkovitz analysis. This requires us

to decide “whether the exercise of judgment or choice at issue ‘is of the kind that

the discretionary function exception was designed to shield.’” Aragon, 146 F.3d

at 823 (quoting Berkovitz, 486 U.S. at 536). The exception shields only

government decisions based on public policy, id., and the very existence of a

government regulation giving government employees discretion “creates a strong

presumption that a discretionary act authorized by the regulation involves

consideration of the same policies which led to the promulgation of the

regulations.” United States v. Gaubert, 499 U.S. 315, 324 (1991). Our inquiry

here must focus on the nature of the government=s actions “and on whether they

are susceptible to policy analysis.” Id. at 325.

      As the district court recognized, our decision in this case is controlled by


                                           5
Aragon v. United States, 146 F.3d 819 (10 th Cir. 1998). In Aragon, the plaintiffs

made nearly identical claims to the ones brought here. Landowners who lived

nearby Walker Air Force Base in Roswell, New Mexico, claimed that Air Force

operations generated TCE contamination which polluted their residential water

wells. In affirming dismissal of the landowners’ pollution claims, we concluded

the FTCA discretionary function exception applied. Our analysis focused not on

the policies surrounding groundwater protection, but on the “broader policies

affecting airbase operations.” 146 F.3d at 826. We admitted to “little doubt” that

the decisions surrounding the operation of an airbase “involve[] policy choices of

the most basic kind.” Id. The broader public and military policies at issue

allowed the Air Force “to place security and military concerns above any other

concerns,” including—unfortunately—concerns about hazardous waste disposal.

Id. We thus affirmed the district court=s dismissal for lack of subject matter

jurisdiction.

      Recognizing their jurisdictional problem created by Aragon’s interpretation

of the discretionary function exception, the plaintiffs redirect our attention

elsewhere: the government’s efforts to warn the neighborhood about TCE

pollution. They do not specifically allege an absence of warning; rather, they

argue that the warnings they did receive were “untimely and inadequate.” Again,

we agree with the district court that the policy choices surrounding the warnings


                                          6
given (or the delayed issuance thereof) are likewise shielded by the discretionary

function exception.

      We turn to our decision in Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir.

1992), to resolve this claim. In Daigle, the plaintiffs, also neighbors to a military

base, sued over the cleanup of chemical munitions and other toxic waste stored at

the Rocky Mountain Arsenal near Denver, Colorado. One of their claims

involved the alleged failure of the Army to warn them of impending toxic air

emissions during cleanup activities. Id. at 1538. In response to this argument, we

held that “‘[a] decision [about a failure to warn] that is a component of an overall

policy decision protected by the discretionary function exception also is protected

by this exception.’” Daigle at 1542 (quoting Zumwalt v. United States, 928 F.2d

951, 955 (10th Cir. 1991)).

      Plaintiffs= inadequate warning claim thus fails here for the same reasons the

duty to warn claim failed in Daigle: the procedures involved in deciding when

and how much to tell plaintiffs about the TCE contamination at the Base implicate

similar policy concerns to those involved in the overall cleanup. These

governmental decisions are grounded in policy discretion and, as such, are

shielded by the discretionary function exception to the FTCA.

      Plaintiff-appellants attempt to distinguish Daigle by arguing that the failure

to warn was a “‘nondecision’ that was never considered or attended to at all,”


                                          7
Aplt. Br. at 19, and thus should not be protected by the exception. This court,

however, previously has rejected a similar formulation of a failure to warn claim.

In Kiehn v. United States, 984 F.2d 1100 (10 th Cir. 1993), we concluded:

      [I]t is unnecessary for government employees to make an actual
      conscious decision regarding policy factors. In fact, we have found
      it irrelevant whether the alleged failure to warn was a matter of
      deliberate choice or a mere oversight. The failure to consider some
      or all critical aspects of a discretionary judgment does not make that
      judgment less discretionary and does not make the judgment subject
      to liability.

984 F.2d at 1105 (applying discretionary function exception)(quotations and

citations omitted).

      Here, the record shows that the Air Force in fact decided to conduct a study

before commencing cleanup operations to determine the pervasiveness of the TCE

problem and to consider remediation options. Government officials made no

decision one way or the other about whether to notify the neighboring residents of

the contamination problem. After deciding on a cleanup plan, the Tinker View

neighbors were notified of the proposed operation, and, for the first time, learned

of the extent of the TCE contamination. This is the same type of conduct that

implicates policy considerations under Daigle and Kiehn. Thus, even if “a matter

of deliberate choice or a mere oversight,” Kiehn, 984 F.2d at 1105, the failure to

warn claims here are barred by the discretionary function exception.




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                                  II. Conclusion

      In conclusion, plaintiffs’ complaint is barred by the FTCA’s discretionary

function exception. Accordingly, the judgment of the district court is

AFFIRMED.

                                      Entered for the Court



                                      Timothy M. Tymkovich
                                      Circuit Judge




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