Clendening v. United States

• Decision Date: 19 June 2020
• Docket Number: No. 7:19-CV-137-BR,7:19-CV-137-BR
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: CAROL V. CLENDENING, as Personal Representative of the Estate of Gary J. Clendening, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CAROL V. CLENDENING, as Personal Representative of the Estate of Gary J. Clendening, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 7:19-CV-137-BR

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION

June 19, 2020

ORDER

This matter is before the court on the United States of America's ("defendant" or the "government") motion to dismiss Carol Clendening's ("plaintiff") complaint. (DE # 20.) Plaintiff filed a response, (DE ## 22, 23), to which defendant filed a reply, (DE # 24). This matter has been fully briefed and is now ripe for disposition.¹

I. BACKGROUND

This dispute involves a United States Marine Judge Advocate General's Corps ("JAG") Officer, Gary J. Clendening ("Clendening"), who served at Camp Lejeune from May 1970 to December 1971. (See Compl., DE # 1, ¶ 2.) Clendening passed away on 16 November 2016 after having suffered from "Waldenstrom macroglobulinemia, chronic lymphoblastic lymphoma, and adult leukemia." (Id. ¶ 3.) Plaintiff, as representative of Clendening's estate, claims the injuries resulting in his death were caused by his exposure at Camp Lejeune to contaminatedwater as well as "radioactive waste, chemical weapon waste, solvents, benzene, and other carcinogens that were improperly disposed, buried or spilled." (Id. ¶ 2.)

Plaintiff's complaint contains numerous allegations. She contends Camp Lejeune had three main water distribution systems which served the residential areas. (Id. ¶ 50.) Plaintiff asserts that Clendening resided at one of the Hadnot Point family housing areas, (id.), which was served by the Hadnot Point water distribution system, (id.), near the Hadnot Point Fuel Farm, (id. ¶ 51). The Hadnot Point Fuel Farm was allegedly comprised of 15 fuel tanks which stored various chemicals and substances. (Id.) Plaintiff contends Clendening "regularly consumed and was exposed to substantial amounts of water supplied by the Hadnot Point water supply facilities," (id. ¶ 41), which he used for "drinking cooking, bathing, and washing clothing," (id.).

The maintaining of the Hadnot Point water system was regulated by a 1972 order from the Department of Navy Bureau of Medicine and Security ("BUMED"). (Id. ¶ 34.) BUMED 6240.3C regulated the water supply and imposed water quality standards. (Id. ¶¶ 35, 36.) It states, in relevant part,

a. The water supply should be obtained from the most desirable source which is feasible, and effort should be made to prevent or control pollution of the source. If the source is not adequately protected by natural means, the supply shall be adequately protected by treatment.

b. Frequent sanitary surveys shall be made of the water supply system to locate and identify health hazards which might exist in the system.

(Id. ¶ 35.) It further provides, in relevant part,

d. Chemical Characteristics (Limits). Drinking water shall not contain impurities in concentrations which may be hazardous to the health of the consumers.................Substances which may have deleterious physiological effects, or for which physiological effects are not known, shall not be introduced into the system in a manner which would permit them to reach the consumer.

(Id. ¶ 36 (omission in original).)

Plaintiff contends defendant violated the BUMED by permitting "gasoline and diesel, radioactive material, and chemical weapons to leak from the Fuel Farm, the landfill, and the incinerator[,] into the ground." (Id. ¶ 38.) She also alleges "[t]he contaminated ground water in turn leached toxic and hazardous chemicals into the walls of the water supply wells serving the Hadnot Point water distribution system[,]" (id. ¶ 39), and defendant failed to test and treat the contaminated water in violation of the BUMED, (id. ¶¶ 39, 40).

Additionally, plaintiff alleges the government discovered that the inhabitants of Camp Lejeune had been exposed to radioactive chemicals in 1980, following a contractor's visit where Strontium 90, a radioactive element, was discovered just below the earth's surface at a recreational area near Clendening's residence and work. (Id. ¶ 18.) As a result of this discovery, the government conducted a study regarding the degree of toxic exposure inhabitants at Camp Lejeune suffered, which was completed on 9 April 1981. (Id.) Plaintiff also contends the government discovered that the fuel storage at Hadnot Point Fuel Farm was leaking and in general disrepair in 1980. (Id. ¶ 52.) Beginning in 1984, various studies followed regarding the conditions of the Hadnot Point Fuel Farm and water supply, which defendant did not release to the public until 2012. (Id. ¶¶ 54-56, 69.)

Plaintiff brings claims of fraud, specifically concealment, (id. at 18), willful and wanton negligence, (id. at 21), fraudulent publication of notice to the public, (id. at 26), wrongful death due to water contamination, (id. at 27), and wrongful death due to direct exposure, (id. at 28), under the Federal Tort Claims Act ("FTCA"). Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

II. DISCUSSION

When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.

Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768-69 (4th Cir. 1991) (internal citations omitted).

Defendant moves to dismiss for lack of subject matter jurisdiction on two grounds: (1) the Feres Doctrine and (2) the FTCA's discretionary function exception. (See Mem. Supp. Mot. Dismiss, DE # 21, at 10, 24.) Plaintiff contends neither doctrine applies to her case and, furthermore, that the Feres Doctrine should be abrogated as a matter of law. (Pl.'s Resp. Opp'n, DE # 23, at 18, 25-26.)

A. Feres Doctrine

Defendant contends that because Clendening's death allegedly resulted from his exposure to contaminated water and exposure to chemicals and radioactive waste near his residence at Camp Lejeune during his military service there, (Mem. Supp. Mot. Dismiss, DE # 21, at 12), his injury was incident to his service and, therefore, barred under Feres, (id. at 15). Plaintiff contends Feres does not bar her claims because the government has not established what "service related activity" Clendening "was engaged in at the time of his service" which involved his chemical exposure. (Pl.'s Resp. Opp'n, DE # 23, at 18.) Further, plaintiff contends the government "fails to identify any military decision that would be affected by this Court's jurisdiction." (Id. at 20.)

"[T]he Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146 (1950). "[W]here a complaint asserts injuries that stem from the relationship between the plaintiff and the plaintiff's service in the military, the 'incident to service test' is implicated." Aikens v. Ingram, 811 F.3d 643, 651 (4th Cir. 2016) (internal citation omitted); accord Cioca v. Rumsfeld, 720 F.3d 505, 515 (4th Cir. 2013). "The factors to be considered are: (1) the duty status of the service member; (2) the situs of the injury; and (3) the activity the service member was engaged in at the time of the injury." Shoen v. United States, 885 F. Supp. 827, 829 (E.D.N.C. 1995) (alteration in original omitted), aff'd, 81 F.3d 151 (4th Cir. 1996); Aikens, 811 F.3d at 650-51 (these factors are fact-specific, no bright-line rules have been adopted by "Feres and its progeny"). The incident to service test "does not inquire whether the discrete injuries to the victim were committed in support of the military mission, but instead whether the asserted injuries stem from the relationship between the plaintiff and the plaintiff's service in the military." Nacke v. United States, 783 F. App'x 277, 281 (4th Cir. 2019) (internal quotation marks omitted).

"[T]he Fourth Circuit has considered the rationales behind the incident to service test, as dictated by the Supreme Court, to bar most military service-based claims." Cubias v. United States, No. 5:19-CV-46-FL, 2019 WL 4621981, at *2 (E.D.N.C. Sept. 23, 2019) (internal citations and quotation marks omitted); accord Chappell v. Wallace, 462 U.S. 296, 299 (1983); Stewart v. United States, 90 F.3d 102, 105 (4th Cir. 1996) (finding that the Supreme Court has broadened the Feres Doctrine to include "at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military"). However, "the Feres [D]octrine does not bar an action against the United States for a service-related injury suffered by a veteran as a result of independent post-service negligence." Broudy v. United States, 722 F.2d 566, 570 (9th Cir. 1983); accord United States v. Brown, 348 U.S. 110, 112 (1954) (finding that plaintiff's injury, permanent nerve damage as a result of a defective tourniquet applied in a veteran's hospital while on active duty, exempt from the Feres Doctrine because the injury itself occurred after discharge when the individual was on civilian status); Maas v. United States, 94 F.3d 291, 295-96 (7th Cir. 1996); Cole v. United States, 755 F.2d 873, 876 (11th Cir. 1985); Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1154-55 (5th Cir. 1981); In re Camp...