Giovanni v. U.S. Dep't of the Navy

Decision Date02 October 2018
Docket NumberNos. 17-2473 & 17-3196,s. 17-2473 & 17-3196
Citation906 F.3d 94
Parties Kristen GIOVANNI, Individually and as parent and natural guardian of V.G., a minor, and D.G., a minor; Charles Giovanni, Individually and as parent and natural guardian of V.G., a minor and D.G., a minor; Anthony Giovanni, Appellants in No. 17-2473 v. UNITED STATES DEPARTMENT OF the NAVY Dorothy Palmer; George Palmer, Appellants in No. 17-3196 v. United States Department of the Navy
CourtU.S. Court of Appeals — Third Circuit

Mark R. Cuker, [ARGUED], Amy Montemarano, Cuker Law, 2005 Market Street—Ste. 1300, Philadelphia, PA 19103, Counsel for Appellants Kristen Giovanni, Charles Giovanni and Anthony Giovanni.

Steven E. Angstreich, [ARGUED], Amy R. Brandt, Weir & Partners, 1339 Chestnut Street—Ste. 500, Philadelphia, PA 19107, Counsel for Appellants Dorothy Palmer and George Palmer

Jeffrey H. Wood, [ARGUED] Eric Grant, Chloe H. Kolman, Sonya J. Shea, Thomas J. Alford, Brian C. Toth, Jeffrey S. Beelaert, United States Department of Justice, Environment & Natural Resources Division, P.O. Box 7611, Ben Franklin Station, Washington, DC 20044, Counsel for Appellee

Deanna K. Tanner, Delaware Riverkeeper Network, 925 Canal Street—Ste. 3701, Bristol, PA 19007, Counsel for Amicus Appellants Delaware Riverkeeper and Delaware Riverkeeper Network

Suzanne I. Novak, Earthjustice, 48 Wall Street—19th Fl., New York, NY 10005, Counsel for Amicus Appellants Brendan Boyle, Lori Cervera, Renee Frugoli, Hope Grosse, Yvonne Love, Minda Ruch, Joanne Stanton and Jacquelyn Rose Wiest

Kevin S. Hannon, 1641 Downing Street, Denver, CO 80218, Counsel for Amicus Appellant Toxics Action Center

Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges


JORDAN, Circuit Judge.

The Giovanni family and the Palmer family live in neighborhoods close to contaminated federal facilities that were owned and operated for decades by the United States Navy. The families filed separate suits in state court under the Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 Pa. Cons. Stat. §§ 6020.101-.1305, seeking orders requiring the Navy to pay for medical monitoring and to conduct a health assessment or health effects study that would include blood testing for themselves and others exposed to the hazardous substances released at the contaminated facilities. The Navy removed the cases to the United States District Court for the Eastern District of Pennsylvania, which concluded that the claims fell within the ambit of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "the Act"), 42 U.S.C. §§ 9601 - 9675, and were challenges under that Act to ongoing cleanup efforts at the facilities. Based on that, the Court further decided that it lacked subject matter jurisdiction over the cases and dismissed them. The Giovannis and Palmers now appeal those orders of dismissal.

We will affirm in part. In our view, the claim for a health assessment or health effects study is barred, as the District Court said, because it challenges ongoing cleanup efforts. But we will vacate and remand in part because we conclude that the medical monitoring claim is not a challenge under CERCLA and that it is not barred by sovereign immunity.


The Navy owns a number of properties in Pennsylvania, including the Willow Grove Naval Air and Air Reserve Station in Horsham Township and the Naval Air Development Center in Warminster Township (collectively, "the Naval Facilities"). Because of the Navy's activities, both facilities are contaminated with hazardous substances. Among the contaminants are perfluorinated compounds ("PFCs"), including perfluorooctanoic acid ("PFOA") and perfluorooctanesulfonic acid ("PFOS").

Studies have identified the toxic effects that PFCs have on people, including increased risk of kidney cancer

, testicular cancer, thyroid disease, ulcerative colitis, pregnancy-induced hypertension, and high cholesterol. And the Environmental Protection Agency ("EPA") has specifically warned that drinking water containing PFOA and PFOS above certain thresholds poses health risks. It issued a non-binding provisional health advisory recommending a maximum combined PFOA/PFOS concentration in public drinking water of 70 parts per trillion (0.07 µg/L).

Groundwater sampling at both the Naval Facilities revealed that the PFOA and the PFOS levels exceeded the health advisory levels. Those facilities, being in need of further investigation to determine the nature and extent of the public health and environmental risks associated with chemical contamination, have been added to the National Priorities List ("NPL"), which is also sometimes called the Superfund List.2

The Navy has begun environmental cleanup efforts, and the parties do not dispute that those efforts are ongoing in both places.

Kristen Giovanni, along with her husband Charles Giovanni, her son Anthony Giovanni, and two other minor children V.G. and D.G., lives across the street from the Willow Grove facility. The water from their private well had a combined PFOA/PFOS level of 2.88 µg/L, which exceeds the concentration exposure threshold recommended by the EPA. The Navy provided the Giovannis with bottled water for several months before it connected them to the Warrington Township public water supply. But even that public water supply is contaminated with PFCs.

Dorothy Palmer, along with her son George Palmer, has lived less than one mile from the Warminster facility since 1981. For years, they used a private well on their property, until they learned about the PFOA and PFOS contamination in the groundwater. The water from their private well had a combined PFOA/PFOS level of 0.62 µg/L, which exceeds the combined exposure threshold recommended by the EPA. The Navy provided the Palmers with bottled water until it connected them to the Warminster Municipal Authority's public water supply. Subsequent testing of that supply has revealed PFC contamination there too.


The Giovannis filed a complaint against the Navy in the Montgomery County Court of Common Pleas, and the Palmers did the same in the Bucks County Court of Common Pleas. Both complaints alleged harm from the contaminated public and private water sources for residents around the Naval Facilities due to the Navy's allegedly improper disposal of hazardous substances. Each complaint included a single state law claim under HSCA seeking, among other things, the costs of medical monitoring and an order compelling the Navy to conduct a health assessment or health effects study that would include blood testing for themselves, and "others exposed to the contaminants and hazardous substances released from the Warminster and Willow Grove [f]acilities[.]" (Palmer Appendix ("P.A.") at 16.) They also alleged that the Navy waived its sovereign immunity pursuant to § 120(a)(1) of CERCLA, 42 U.S.C. § 9620(a)(1), and § 6001(a) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6961(a).

The Navy removed both cases to the District Court under 28 U.S.C. § 1442(a)(1). The Giovannis and Palmers then filed motions to remand their cases to state court. The Navy responded by moving to dismiss the cases without remand, which the Giovannis and Palmers opposed.

The District Court held a hearing on the competing motions in the Giovannis' case. The parties agreed that removal was proper under 28 U.S.C. § 1442, which prompted the Court to deny the motion for remand. Ultimately, the Court dismissed the Giovannis' complaint, and it issued a thorough and detailed memorandum opinion to support its decision. It concluded that § 113(h) of CERCLA3 deprived it of jurisdiction to hear a claim that would interfere with an ongoing cleanup under CERCLA, and that the Giovannis' claims that the Navy should pay for medical monitoring and should provide a health study amounted to a challenge to the ongoing response actions at the Naval Facilities. The Court construed § 113(h) of CERCLA as depriving both it and the state courts of jurisdiction, and thus it dismissed the Giovannis' case under the doctrine of derivative jurisdiction, without remand.

The District Court then disposed of the Palmers' complaint in a footnote order granting the Navy's motion to dismiss, "consistent with the Court's Opinion in Giovanni [.]" (P.A. at 45.) In that order, the District Court rejected an additional argument raised by the Palmers, namely that the cleanup activities were initiated under § 120 of CERCLA4 and were therefore not affected by § 113(h)'s jurisdictional bar. It concluded that the authority to clean up the Naval Facilities derived from § 104 of the Act,5 not § 120.

The Giovannis and Palmers filed these timely appeals. Amicus briefs have been filed in support of the Giovannis and Palmers by the following groups: (1) the Delaware Riverkeeper Network and Maya van Rossum, also known as the Delaware Riverkeeper; (2) the Toxics Action Center; and (3) Brendan Boyle, Lori Cervera, Renee Frugoli, Hope Grosse, Yvonne Love, Minde Ruch, Joanne Stanton, and Jacquelyn Rose Wiest, all of whom currently live or formerly lived near the Naval Facilities.6


We will affirm in part and vacate in part the District Court's dismissal of the Giovannis' and Palmers' complaints and will affirm its decision not to remand to state court. Although the requests for a government-led health assessment or health effects study are barred under § 113(h) as challenges to ongoing response actions, the requests for the costs associated with private party medical monitoring are not barred by that CERCLA provision because that relief does not interfere with or alter the ongoing cleanup efforts. Moreover, the relief sought by the Giovannis' and Palmers' on their medical monitoring claims is best characterized as injunctive relief, and the federal government has waived sovereign immunity to suits by private parties seeking such relief. We will therefore vacate the District Court's...

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