Clendening v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation19 F.4th 421
Docket NumberNo. 20-1878,20-1878
Parties Carol V. CLENDENING, as Personal Representative of the Estate of Gary J. Clendening, Plaintiff - Appellant, v. UNITED STATES of America, Defendant - Appellee.
Decision Date30 November 2021

ARGUED: Nicholas Frederick Baker, NICK BAKER LAW LLC, Indianapolis, Indiana, for Appellant. Daniel Tenny, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jeffrey Bossert Clark, Acting Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before AGEE and WYNN, Circuit Judges, and Frank W. VOLK, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Volk joined.

WYNN, Circuit Judge

In 2019, Carol V. Clendening ("Plaintiff") filed suit against the United States for her husband's wrongful death allegedly caused by his exposure to contaminated water and environmental toxins while stationed at the Marine Corps Base Camp Lejeune in Jacksonville, North Carolina. Her complaint also asserted claims against the United States for its subsequent fraudulent concealment and failure to warn relevant personnel of the severity, scope, and impact of said exposure.

The district court dismissed all claims for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Because we find that Plaintiff's claims are barred under the Federal Torts Claims Act, we affirm the district court's dismissal.

I.

The following facts are taken from Plaintiff's complaint. On November 16, 2016, Gary Clendening ("Clendening") lost his years-long battle against adult leukemia

, Waldenstrom macroglobulinemia, and chronic lymphoblastic lymphoma. His widow, Plaintiff, claims her husband's death resulted from his constant exposure, while stationed on active military duty at Camp Lejeune, to contaminated water and "radioactive waste, chemical weapon waste, solvents, benzene, and other carcinogens that were improperly disposed, buried or spilled at" the base. J.A. 5.1

From May 1970 to December 1971, Clendening resided at Camp Lejeune while serving as a United States Marine Officer in the Judge Advocate Division of the Marine Corps. Clendening lived in the Hadnot Point area of the base, located near the Hadnot Point Fuel Farm, a former incinerator and landfill. At some point in time, the Hadnot Point Fuel Farm tanks began to leak, contaminating the water supply with "fuel products" and other "hazardous materials." J.A. 9, 20. By 1980, the Government was aware of the leakage but issued no warnings regarding the resulting potential health or safety effects.

That same year, a contractor discovered "radioactive Strontium 90 (Sr-90) pellets and dead beagles" buried "just below the surface of the ground" near where Clendening was stationed. J.A. 9–10. Subsequent analysis conducted in 1981 found elevated levels of Sr-90 in the area. Yet the Government still took no action to inform exposed personnel or shut down the potentially contaminated waterways. In 1984, additional testing revealed benzene contamination in a Hadnot Point drinking well, which led to the subsequent closure of that well and to the review and closure of several other wells on base. By 1985, all identified contaminated wells supplied by the Hadnot Point Water Treatment Plant distribution network were shut down due to the presence of volatile organic compounds in the network. Three years later, a monitoring report "described a 15-foot layer of fuel floating" atop the water table below the Hadnot Point Fuel Farm and identified significant benzene levels in nearby wells. J.A. 21.

As a result of the numerous contamination reports, Camp Lejeune was placed on the Environmental Protection Agency's Superfund National Priorities List in 1989. All investigation and remediation activities at the base were subsequently "placed under the oversight of" the federal government pursuant to the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation, and Liability Act. J.A. 21–22. A "review of environmental treatment options" in 1993 unearthed "storage tanks containing fuel, cleaning solvents and other chemicals" that "had been buried at sites across Camp Lejeune for years." J.A. 22. The Department of Health and Human Services's Agency for Toxic Substances and Disease Registry ("Agency for Toxic Substances") published a Public Health Assessment for Camp Lejeune in 1997. However, in 2009, the Agency for Toxic Substances took the Public Health Assessment down from its website, in part because it failed to discuss the extent of benzene exposure.

Two years after the assessment was removed from the website, the Government "directed" the Agency for Toxic Substances "to attempt to survey former Camp Lejeune employees' health conditions." J.A. 18. In 2012, the Agency for Toxic Substances issued a new report detailing significant contamination of the water supply at Camp Lejeune, including at Hadnot Point. Two years later, the Centers for Disease Control and Prevention reported that individuals stationed at Camp Lejeune had a 68% higher risk of developing multiple myeloma

. In 2016, the Department of Veterans Affairs "adopted regulations [stating] that ... eight associated diseases including ... adult leukemia were presumed to have been caused by ... exposure at Camp Lejeune." Id.

In 2019, two and a half years after Clendening's death, Plaintiff filed the instant suit pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 – 2680. She alleged (1) fraudulent and "willfully and wantonly negligent" conduct pertaining to the exposure of military personnel to dangerous chemicals and the subsequent failure to warn of the same, (2) fraudulent concealment, (3) fraudulent publication of notice to the public, (4) wrongful death due to water contamination, and (5) wrongful death from direct exposure not incident to Clendening's service. J.A. 26.

The Government moved to dismiss under Rule 12(b)(1), arguing that Plaintiff's claims were barred by the rule announced in Feres v. United States , 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) ; the Federal Tort Claims Act's "discretionary-function" exception, 28 U.S.C. § 2680(a) ; or both. The district court dismissed all claims for lack of subject-matter jurisdiction, Clendening v. United States , No. 7:19-CV-137-BR, 2020 WL 3404733, *2–6 (E.D.N.C. June 19, 2020), and Clendening timely appealed.

II.

Whether a claim falls within the purview of the Federal Tort Claims Act presents an issue of subject-matter jurisdiction that we review de novo. Rich v. United States , 811 F.3d 140, 144 (4th Cir. 2015).

"As a general matter, the United States is immune from suit unless it waives that immunity." Sanders v. United States , 937 F.3d 316, 327 (4th Cir. 2019) (quoting In re KBR, Inc., Burn Pit Litig. , 744 F.3d 326, 341 (4th Cir. 2014) ). The Federal Tort Claims Act creates a limited waiver of the United States' sovereign immunity, generally making the Government liable in tort "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. But that waiver is curtailed by several exceptions. 28 U.S.C. § 2680 ; Feres , 340 U.S. at 146, 71 S.Ct. 153 ; Hancox v. Performance Anesthesia, P.A. , 455 F. App'x 369, 371 (4th Cir. 2011) (per curiam). The plaintiff bears the burden of showing "that none of the statute's waiver exceptions apply to [her] particular claim." Welch v. United States , 409 F.3d 646, 651 (4th Cir. 2005). If the plaintiff cannot satisfy this burden, "then the claim must be dismissed." Id.

Plaintiff argues that her claims may proceed under the Federal Tort Claims Act. But the district court found that two different exceptions to the Act's limited waiver required dismissal of her claims, concluding (1) that the Feres doctrine barred Plaintiff's tort claims for Clendening's exposure to contaminated water and other toxins while living at Camp Lejeune, and (2) that to the extent a failure-to-warn claim survived Feres , it was also barred under the discretionary-function exception. Clendening , 2020 WL 3404733, at *4–6.

Plaintiff challenges both conclusions on appeal. First, she asserts that the Feres doctrine does not apply to this case because Clendening's exposure was not "incident to any military project" and because the "[G]overnment's conduct served no military purpose." Opening Br. at 24. Alternatively, she asks that, should this Court find Feres applies, we abridge or overturn it. Second, Plaintiff argues that the discretionary-function exception does not apply to the military's failure to provide clean drinking water nor to its subsequent failure to warn. We address each issue in turn.

A.

We first consider the applicability of what's known as the Feres doctrine. Shortly after the Federal Tort Claims Act became law in 1946, the Supreme Court considered a series of cases in which service members or their executors sued the United States for injuries sustained "due to negligence of others in the armed forces." Feres , 340 U.S. at 138, 71 S.Ct. 153 (1950). The Court concluded that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. " Id. at 146, 71 S.Ct. 153 (emphasis added).2

There is no "specific element-based or bright-line rule" for determining whether certain conduct was "incident to service."3 Aikens v. Ingram , 811 F.3d 643, 650 (4th Cir. 2016), as amended (Feb. 1, 2016) (citing United States v. Shearer , 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) ). Instead, we must ask whether "particular suits would call into...

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