*1 ALJ, the majority properly as holds. Ad- personal Dennis Dionicio GARCIA
ditionally, as record-supported “other representative discrediting[Carmickle’s] estate of Marcel- reasons testi- Garcia, deceased; ino Inez Maria mony” are neither “numerous” nor Gar- partic- cia, individually jointly parents and ularly compelling. Carmickle testified Deja positions next change that he has to “constant- friends Bonet Garcia clarified, Garcia, minors, ly” pressed by then when and Nicolas Dionicio but counsel, Plaintiffs-Appellants, that he sit for minutes could majori- changing positions. without As the ty recognizes, the ALJ credited Carmick- FORCE; AIR UNITED STATES James
le’s clarification and included the 15-min- Roche, Secretary G. of the United ute limitation in the residual functional Force; Chenenga Manage- Air States capacity Maj. assessment. It Op. at 1161. ment, LLC; Northeast Construction apparent changing is not positions Company Nevada; Doe, John Con- minutes, every day long, necessarily tractor, Defendants, perceived would be some- described as than thing less Car- “constant” motion. mickle also testified that he can lift 10 America,
pounds occasionally United though even his doc- States Defendant-Appellee. tor found that he lift pounds could frequently. That significant difference is No. 07-2106. art, as a term of necessarily but meaningful lay person. distinction to a United States Court of Appeals, Tenth Circuit. summary, the ALJ erred consider- ing two factors that prohibits. the law Be- July only two, relatively cause minor record-
supported reasons buttress the ALJ’s con-
clusion, wholly while two im- reasons were
proper, I cannot conclude that the ALJ’s credibility
errors did affect his adverse
finding. Applying the harmless error test precedent,
mandated our I would there-
fore hold the ALJ’s errors were not
harmless.
(“FTCA”), 1346(b), 2671, §§ 28 U.S.C. personal injuries damages to toxic mold in exposure sustained from Holloman housing their on-base unit at Air (“HAFB”) Base in New Mexico. Force They allege the mold resulted from penetrated through their home water roof, and that the a leak failing identify negligent ment the mold prevent the leak time to from *4 developing. Finding ment’s fell within the actions FTCA, U.S.C. 2680(a), granted § court sum- the district mary judgment government. The for also Fed.R.Civ.P. court denied the Garcias’ 56(f) request to conduct for continuance discovery further as well as their Fed. 60(b) from judg- motion for relief R.Civ.P. ment, upon which based evidence ob- from contractor private tained jurisdic- exercise installed their roof. We § 1291 and affirm. tion under 28 U.S.C.
Background (A. 16, and Bailey February August Brent Jennifer Rozzoni Between P.A., briefs), Dixon, Bailey, on the 23, 2002, & in an Scholl lived on-base the Garcias NM, Plaintiffs-Appel- for Albuquerque, housing HAFB located 2553A unit at lants. (“Unit 2553A”). Prior to Loop Valencia taking possession Unit the Garcias Dinnell, Attorney, Trial M. Civil
Adam 2553A, the contracted with Branch, Division, Environmental Torts (“North- Company Section, Department U.S. of Justice Northeast Construction Torts (and Keisler, east”) Peter D. As- Gay Kang; family E. 113 on-base hous- renovate General, Division; J. Attorney Civil sistant HAFB, including units at Unit 2553A. ing Branch; Director, Glynn, Torts Patrick converting involved The renovation Director; Bordeaux, Deputy Joann J. “low-slope” roof roof of Unit 2553A from Fishback, Director; Assistant on David S. millimeters pitch or than 250 (slope of less brief) D.C., for Defen- Washington, meter) (slope pitch roof per “pitch” to a dant-Appellee. more). meter or per of 250 millimeters type this recommended The LUCERO, KELLY, and Before typ- roofs pitch “slope conversion” because HARTZ, Judges. Circuit less mainte- ically longer require last and KELLY, JR., Judge. Circuit PAUL The low-slope than roofs. renova- nance prior to completed “Garcias”) tion of Unit 2553A (the brought this Plaintiffs of it. taking possession Act Federal Tort Claims action under the 1996, 23, February August Garcia moved out of Unit On Dennis Garcias inspection an form for Unit completed into housing. 2553A off-base That same The form some minor cos- 2553A. noted day, pre- SafeNet Environmental Services defects, metic but did indicate pared report a mold identification later, Ten days mold or water leaks. Chenega. stated that on Au- report moved into 2553A. Between Garcias Unit gust fungal SafeNet found visible February April 49th 1996 and spore growth varying degrees at HAFB was Engineering Squadron Civil on depending centrations the location with- man- responsible for the maintenance and 21, 2002, in Unit 2553A. On November 2553A, agement of Unit but the Garcias Clayton Group prepared a mold as- report any problems did maintenance government. That sessment for the as- time during period. sessment found that the air 2553A Unit May Chenega Management, Safety Occupational did not exceed (“Chenega”) responsible for LLC became Health Administration standards did management the maintenance and of Unit high not indicate levels of toxic mold. Nei- Subsequently, experi- 2553A. Garcias Clayton Group SafeNet ther nor the defin- *5 problems enced some maintenance with itively identified the cause of the mold.1 unit, their each of which was resolved subsequently The Garcias filed adminis- 6,
Chenega. September For on example, government, claims the which trative with 2001, in reported a water leak were denied. The Garcias then filed this ceiling. Chenega problem the fixed the on against government pursuant suit the 15, September they 10. re- On October They brought the FTCA. also various a ported spongy, a discolored area on wall. against 26, state-law claims Northeast and Chenega repaired On November the 30, Chenega. that Arguing wall. November the re- the On Garcias ported suit, had the exception that sheetrock fallen over function bars the Garcias’ water heater. fixed Chenega problem that government the moved to dismiss for lack 8,May 2002, they on December 3. subject jurisdiction, On matter the reported mildew on a wall. bedroom alternative, summary for judgment. The re-grouted and Chenega re-caulked two included sworn declara- 24, to fix problem. May shower the On concerning any mandatory tions the lack of reported the that the Garcias dishwasher inspection policies. residential roof ad- spraying water all over the kitchen. responding to the dition merits of the Chenega subsequently fixed the dishwash- motion, government’s the request- Garcias er. 56(f) ed a Rule continuance to conduct further discovery. The district court de-
It not until the summer of 2002 56(f) request, nied the Rule construed the Chenega the Garcias first evalu- asked government’s as a for motion motion sum- they ate the mold that now claim caused judgment jurisdictional injuries. mary because is- physical responded housing the sues were intertwined with the merits of Garcias case, August August hotel from 4 to On and granted summary judgment 19. Nothing 1. in the record shows when the leak mended the source the mold should be 126; in the Garcias' roof mold occurred or that the investigated. Aplt.App. Aplee. See at developed in the Garcias' home as a result of However, Supp.App. at record 52. is a leak in their roof. Neither SafeNet nor the any investigation silent as to whether such Clayton Group definitively identified place. ever took organizations cause of mold—both recom- 312, complaint as sidering allegations at Aplt.App. See government. to the in the record. Duke well as the evidence Dep’t Agric., v. decision, the Garci- the court’s Following Cir.1997). (10th court As district regarding evidence additional as obtained gov summary judgment for granted discretionary func- of the applicability ernment, only we determine whether the North- discovery with from exception tion applies, a exception function evidence, and, on the basis east issue, 60(b) jurisdictional judgment and make no for relief motion filed a Fed.R.Civ.P. Viewing of the case. Id. all district court on the merits judgment. The from Fed.R.Civ.P. motion under infer drawing evidence and reasonable strued 54(b) final yet entered the court had light therefrom in the most favor ences 37-38, Supp.App. judgment, Aplee. nonmoving party, Fye v. Okla. able of the discre- applicability reaffirmed Comm’n, 516 F.3d Corp. notwithstanding tionary (10th Cir.2008), that sum we determine at 41-49. Id. the new evidence. if “there is mary judgment appropriate fact no issue as to material against genuine Northeast claims subsequently judg dismissed movant is entitled to Chenega were and that the to settlement pursuant prejudice of law.” Fed.R.Civ.P. ment as a matter court’s de- making the district agreements, 56(c). appeal. See Jackson ripe
cisions Am., Inc., N. Trucks Function Discretionary Volvo B. Cir.2006).2 the Gar- appeal, On sovereign im The FTCA waives (1) grant arguments: make three cias munity against for actions the United *6 inappropriate summary judgment of injuries by from caused resulting States to follow failed government because the governmental acts of em negligent governing mandatory policies Air Force of their ployees acting scope while of their roof—in periodic inspection 1346(b)(1). § employment. See 28 U.S.C. otherwise, im- the district court holding “in can be held liable The United States (2) evidence; the denial weighed properly and to the same extent the same manner 56(f) error; request was of their Rule circum under like private as a individual (3) relief of their motion for the denial § Excluded from this Id. 2674. stances.” error because new evi- judgment from immunity are claims based on waiver of had showed that dence discretionary func “a performance voluntarily duty inspect a to assumed agen a duty part on the federal tion or arguments in roof. address these We 28 cy employee or an of the Government.” turn. 2680(a). “discretionary § This U.S.C. jurisdictional exception poses function
Discussion suit, plaintiff which the prerequisite to I. ultimately part of his overall must meet as A. Review Standard juris subject matter burden to establish States, 146 Aragon diction.” v. United de review the district court’s
We Cir.1998) (10th 819, (quotations 823 F.3d of the dis applicability termination of the omitted). discretionary function novo, “If the de cretionary function by Court on March was terminated this Chenega were dis- which 2. Northeast and Before 20, litigation, Aplt.App. filed a from this at 24. missed 2006. See (No. 05-2289) appeal premature notice 1176 1954, (1988).
exception applies
challenged con
expenditure of Federal the exe Application [or] C. 810, cution of a Federal project....” at Id. appeal, argue On that the omitted). (quotation S.Ct. government’s conduct was not discretion- ary but do not arguments assert To determine whether conduct respect to the prong second of Berkovitz. falls within the function ex Therefore, we ception, apply only we address whether two-part test set forth the Supreme challenged government Court in Berkovitz v. conduct at issue 531, 536, United 486 U.S. discretionary. 108 S.Ct. here was R.App. See Fed. Stores, respect to follow with required ment was 28(a)(9)(A); Adler v. Wal-Mart P. Cir.1998) periodic inspection to the of Garcias’ 664, Inc., roof. inadequately arguments (explaining waived). are
briefed apply type AFI does not 32-1051 roof on 2553A. As described earli- Unit argue that The Garcias er, converted the roof on Unit Northeast discretionary be- was not ment’s conduct low-slope pitch roof to a roof 2553A from failed to follow cause the taking pos- to the Garcias prior sometime mandatory policies governing specific, guidance AFI sets forth session. 32-1051 roof, as set inspection of periodic low-slope management on Air Force Engineer Sup- “Air Force Civil forth in roofs, Throughout AFI pitch roofs. Pitched Roof- Agency Field Guide: port 32-1051, the instruction refers to manuals Evaluation, Inspection, ing Systems, maintenance of “mem- pertain (the “AFCESA Criteria” Maintenance roofs, 188, id. at up” brane” or “built see 1996, Guide”), November Field dated 190, 191, 194-97, types which are low- (“AFI”) 32-1051, Instruction Air Force roofs, id. at 467. AFI 32-1051 slope see that the They argue May 1994. dated places, roofs in two only pitch refers to weighed evi- improperly court district requires the specifically neither of which They also concluding otherwise. dence in periodic inspections Air to conduct Force 33-360, January rely AFI dated on fact, In AFI Id. at 188-89. pitch roofs. require direct arguing that AFI’s expressly states reference the Air Force. at all levels of compliance monitors these pitch roofs that user “[t]he government ad- They claim that had the roofs, personnel re- and roof maintenance it would have policies, these hered to according to the war- spond complaints cor- in their roof and identified the leak Thus, AFI 32-1051 ranty.” Id. de- mold could problem rected the before that the Garcias were expressly provides reviewed each of these velop.3 We have roof, monitoring their responsible for that none of and conclude documents government. mandatory specific, prescribe them argument applica- inspec- conduct regarding course of limited to low- AFI 32-1051 is not tion of roof. tion of the Garcias’ Essentially, they slope roofs is meritless. clearly The AFCESA Field Guide out provisions AFI 32-1051 discuss certain only guide” a “field whose states that infer that these and ask us to of context ready reference for provide “is to purpose For to their roof. exam- provisions apply conducting a roof man establishing and rely paragraph pro- which ple, they on roofing steep-sloped agement program “low-slope procedures for inspection vides addition, systems.” ApltApp. “low-slope green at 468. roofs” and category red *8 yellow category is silent with category the Field Guide roofs” but “all AFCESA argue to inspections roof are at 193-94. The Garcias respect to when roofs.” Id. single no need to a man that would be prescribe “[t]here it does not occur.4 Thus only applied if AFI ‘low-slope’ 32-1051 the out of conduct that datory course court, R.App. See Fed. thus waived them. also and have district 3. Before the Adler, 28(a)(9)(A); at 679. 144 F.3d P. government failed to follow claimed that the testing governing mandatory policies the only included selected 4. Garcias have The containment, quality as the indoor air as well in their AFCESA Field Guide pages of the of mold. On and remediation eradication analysis pertains appendix therefore our and arguments they press these appeal, do not only pages. to those “prime example is reason- lan- slope to roofs” and thus it low applies provide specif- that AFI to order alone did not guage”; able to infer 32-1051 directives). ic, mandatory an Air Br. at 10. initial Force Aplt. all roofs. As matter, expressly do not state Garcias AFI argue Garcias 32-1051 The “yellow constitutes a cate- that their roof roofing inspectors Air Force to requires any support gory” roof or offer evidence to roofing “monitor the work of all contrac- Regardless, ig- such a claim. Garcias reject daily accept a basis a tors on and expressly pro- nore which paragraph basis,” a roofing daily contractor’s work on red, yellow, green vides that and condi- implying that the Air Force was again pertain low-slope tion to roofs. categories to work obligated inspect Northeast’s dur- engi- at 190 roof Aplt.App. (instructing See ing the renovation of the Garcias’ roof. “facility neers to make list of base However, Br. at 9. AFI 32-1051 also Aplt. roofs, then list into low-slope divide[ ] responsible states that contractor is “[t]he red; yellow; categories: three condition quality for control” and Air Force “[t]he green”). reject and therefore the Gar- We job is to the contrac- inspector’s monitor Similarly, of AFI reading cias’ 32-1051. quality program. During tor’s control reject paragraph we their reliance on 8 for job days, remain for first few at the sever- roofing that Air in- proposition Force day al each to the contrac- hours observe required spectors are to “confirm leak control quality program. tor’s After roofs,” newly im- tightness of constructed satisfactory achieves a level contractor plying obligated that the Air Force to confidence, you can reduce the time.” inspect their roof after it was renovated added). Thus, at ApltApp. (emphasis Aplt. provision Northeast. Br. at 9. The clearly delegates quality AFI 32-1051 rely specifically on which the Garcias re- independent pro- trol to contractors and yellow category fers to roofs and is thus the Air Force discretion in vides with inapplicable Aplt. to Garcias’ roof. See monitoring that quality control—these App. at 191. provisions oversight sufficiently are not addition, although gen- AFI to specific liability. 32-1051 establish erally with it provides compliance is Elder v. United Cf. (10th Cir.2002) required, compliance (finding it does not mandate mandato- 1177-78 proce- safety with specific inspection ry guidelines roof Park Service National 33-360, AFI sufficiently specific dures. Pursuant to AFI 32- decision- remove “compliance a banner stating making contains under them from publication mandatory.” exception). language with this Id. at alone However, conclusion, reject AFI first such a compels 32-1051’s we merely “provides sentence states that argument the district court guidance establishing maintaining weighed reaching legal for evidence in this management program.” roof at 188. Accordingly, Id. conclusion. the Garcias have simply AFI spe- any specific does not contain directives that identified cific, mandatory roof inspection periodically directives. mandated (finding gener- Aragon, inspect their roof and district court Cf. al compliance grant summary judgment executive order manda- was correct tory practicable” but use of term government.5 “as *9 statute, Judge suggests regulation, policy. 5. that were Lucero if he inter- federal or We preting recently note that Tenth Circuit has re- impression, as a of first matter he would jected argument. Sydnes, a similar See 523 interpret mandatory allowing the FTCA as (“Considering F.3d tort law a at state law, just duties to arise from state tort required that structions or standards II. inspect Air Force to their roof for leaks or response the Garcias’ Concurrent The court further noted home for mold. motion government’s of the the merits to underway for discovery that had been six summary judgment, for to dismiss/motion 56(f) at the time of the Rule re- months 56(f) a Rule counsel submitted the Garcias’ quest and the Garcias had access to obtain a continuance requesting affidavit provided sup- in policies stated discovery. The affidavit additional port Aplt.App. of its motion. See at 313- 14. opportu- not had an A. Plaintiffs have safety the Defendant’s nity to discover court’s We review the district habitability [sic] for its on- policies 56(f) request of a Rule for an abuse denial [HAFB]; B. Plaintiffs housing at base Party N.M. of discretion. Libertarian opportunity had an to discover have not (10th Herrera, v. Cir. a policy that Defendant has the reasons 2007). ruling “A to defer a party seeking identification, surveillance, and for mold 56(f) summary judgment on under Rule remediation; cannot and C. Plaintiffs why explainfs] must ‘file an affidavit that claim respond to Defendant’s completely precluding summary judgment can facts in in this case was that its conduct [sic] identify includes presented. not be This discretionary. respects ing probable facts available Id. at 159. steps have been taken to obtain these what ” Franco, v. (quoting facts.’ Id. Trask 56(f) provides: Rule (10th Cir.2006)) (alteration 1036, 1042 F.3d by the motion shows party opposing
If a may not Rule original). party A invoke reasons, that, specified affidavit 56(f) discovery is “by simply stating justify present cannot facts essential specificity must ‘state with incomplete but may: the court opposition, its the additional material will rebut how (2) (1) motion; a contin- deny the order ” Id. at summary judgment motion.’ obtained, affidavits to be uance to enable Ezra, Weinstein, & (quoting Ben taken, or other discov- depositions to be Inc., 980, 987 Co. Am. Online (3) undertaken; any issue ery be Cir.2000)). just order. other 56(f) (2008).6 Fed.R.Civ.P. challenge to essentially recites court’s decision district request, The district court denied the 56(f) and summarizes the district Rule did not finding that the Garcias’ counsel any make They decision. do not court’s further be revealed specify what would authority to or cite legal arguments discovery, explain nor did he how addition- Adler, 144 position. support their See al information would allow the Garcias Regardless, the affidavit sub F.3d at 679. government’s evidence rebut directives, failed to in- mitted the Garcias’ counsel no Air Force there were employees with[in] the government's discretion discretion of federal limit on the federal FTCA.”) stage impermissibly (emphasis origi- jurisdictional meaning con- of the plaintiffs’ claims with the nal). flates the merits of question whether the United States has those jurisdiction on the courts to hear ferred 56(f) restyled 2007 and we use Rule Indeed, only place. the first claims in changes the current version as no substantive way plaintiffs might on succeed conceivable Advisory the rule in 2007. See were made to policy theory by pointing to federal Notes, 2007 Amendments. Committee incorporating law as a limit on state tort *10 1180
identify any specific upon facts which would cre- motion was based three documents fact, genuine (1) ate a issue of material let obtained from Northeast: Contract No. identify what steps alone had been taken F29651-93-C-0012 between Northeast and plan to obtain such facts and a for the government regarding Phase I of addition, already future. upgrade housing Northeast’s of 113 units had six months to discovery prior conduct (which 2553A) on HAFB included Unit 56(f) request to their and Rule “does not (the (2) Contract”); I “Phase Air Force compel grant the court to a continuance to specifications for the Phase I Contract that party dilatory has been in conduct- (3) (“Specifications”); “Stipulation and ing discovery.” City Bolden Topeka, v. Settlement and Agreement” between the (10th Cir.2006). Kan., 441 F.3d government and Northeast entered into on Therefore, the district court did abuse (“Settlement Agree- December by denying request. its discretion ment”). ApltApp. See at 337-56. The Garcias also attached the affidavit of T.J. III. Hiehle, Northeast, the former president of Following the grant district court’s to their responsive pleadings before the summary judgment government, for the district court. Id. at 438-41. the Garcias obtained additional evidence discovery from they Northeast that We have reviewed this evidence government claimed showed the voluntari agree and with the district court that ly duty assumed a inspect their roof nothing changes contained therein during Northeast’s renovation of Unit conclusion that discretionary function 2553A and warrant the roof installation. exception precludes the Garcias’ suit. Ac See Bell United cording Garcias, the Phase I Con (10th Cir.1997) (explaining gov tract Specifications provided and North voluntarily ernment’s assumed contractual east plans, with “detailed specifications obligations impose can nondiscretionary and direction” regarding Northeast’s reno government employees). duties on On the 2553A, vation of thereby Unit eliminating evidence, basis of this the Garcias filed a any government regarding discretion 60(b) Fed.R.Civ.P. motion for relief from Aplt. renovation. Br. at 15. The Garcias judgment, arguing claim that inspectors, pursu function inapplicable was to their ant to I the Phase Contract Specifica and claim that negligent tions, required were inspect the renova retaining supervising and Northeast. tion to ensure that the roof installation The district court construed the motion “weathertight” provided adequate and 54(b) under Fed.R.Civ.P. because final protection. moisture disagree. Id. We judgment yet entered, had not been concluded that the newly discovered evi I merely Phase Contract provides dence did not support the Garcias’ claims Engineer the “Base Civil or his au- and that excep representative thorized designated tion still applied. Aplee. See Supp.App. at representative Contracting of the Offi- 43-49. cer for purpose of technical surveil- lance of workmanship inspection
We review a district
court’s Rule
54(b)
materials
being performed
reconsideration of
for work
prior
its
interlocu
under
tory decision de novo.
this contract.”
Raytheon
See
Id. at 382.
Con
Neither this
Inc.,
structors Inc. v.
provision,
ASARCO
nor
other in the Phase I
Cir.2003).
Contract,
prescribes
specific inspection
*11
Agreement
1995. The Settlement
does
respect
to the Garcias’
with
procedures
specific inspection proce-
prescribe
not
roof.
government
respect
for the
with
to
dures
Specifica-
the
reliance on
the Garcias’ roof.
provisions
merit. The
also without
tions is
Northeast,
to
apply
the
quoted
Garcias
Thus,
readily
is
the instant case
distin-
The Garcias have
government.
not the
Bell v.
on
guishable from
United
in
any provision
Specifi-
the
pointed
not
to
Bell,
primarily rely.
In
the
which Garcias
inspection
specific
that mandates
cations
government
engi-
contracted with a state
government.
for the
procedures
supervise compli-
neering commission to
safety
regarding
specifications
ance with
testimony
help
not
the
does
Mr. Hiehle’s
matter,
expansion of a reservoir. 127 F.3d at
the
an initial
case either. As
Garcias’
Northeast,
specifically required
1227. The contract
employee
was an
Mr. Hiehle
to facili-
question
engineer
pipeline
we
the
to remove
government, and
the
private
con-
at 1227-28. How-
testimony
the
tate the excavation. Id.
whether
ever,
construction,
the discretion-
govern-
is sufficient to show
during
tractor
apply.
ary
exception
function
should
allowed the contractor
supervisor
ment’s
testimony merely provides
his
Regardless,
pipeline
place,
to leave the
direct
inspec-
an
government “provided
that the
government’s specific
violation of the
con-
manager to oversee
project
tor and
duty.
plaintiff
Id. at 1228. The
tractual
I
under the Phase
performed
struction
injured
became
when he dove into
later
Contract,”
government “inspec-
and
submerged
the reservoir and hit the
dirt
that con-
performed to ensure
tions were
covering
pipeline.
embankment
Id. at
in accordance
performed
was
struction
1227. The Tenth Circuit held that
Id. at 439. Mr.
[Specifications].”
with the
inap-
government
that the
Hiehle does not state
pro-
because the contract did not
plicable
specific inspection
required
perform
to
supervisor
any
government
vide
such an obli-
or that
violated
procedures
of the
regarding the removal
discretion
gation.
at 1230.
pipeline. Id.
that under the
argue
also
Garcias
contrast,
in-
government
in the
By
government
Agreement,
Settlement
merely agreed
provide
an
stant case
to warrant
the renovation
Unit
agreed
manager with un-
inspector
project
and
claim is
Aplt. Br. at 15. This
2553A.
record
Nothing
duties.
specified
Agreement itself.
belied
the Settlement
assumed, let
government
shows
re-
Agreement, which
The Settlement
breached, any specific contractual
alone
Northeast and
dispute
solved a
between
imposed specific inspection
obligation
provides
that the
government,
related duties.
remaining
on
perform
ment would
work
Joy
rely
Ayala
on
v.
The Garcias also
at
December
housing units after
fallen under treated as that will be
kinds of decisions subject policy public
matters See, exception. e.g.,
discretionary function F.2d
Boyd v. United Cir.1989).
Nevertheless, cur- by our constrained arguments ad- and those precedent
rent compelled I am parties,
vanced judgment, and do so.
concur in the
HARTZ, concurring: Judge, Circuit join all of
I concur the result except that I do not Kelly’s opinion,
Judge AFI necessary to decide whether
think pitch roofs. applies to CANADA, LTD., NETWORK
BIG SKY Virgin corporation, Islands
a British
Plaintiff-Appellant, GOVERN- PROVINCIAL
SICHUAN
MENT, People’s a subdivision of China, Qingyang
Republic of Dis- Government,
trict a subdivision of China, foreign
People’s Republic
state, Defendants-Appellees.
No. 07-4014. Appeals,
United States Court
Tenth Circuit.
July