Angela Pieper v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-02457-CCB Copies to all parties and the district court/agency. [1000177413].. [16-2035]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-2035

ANGELA PIEPER, Individually and as Personal Representative of the Estate of
Kristen Renee Hernandez, And All Similarly Situated Personal Representatives of
Estates of Deceased Persons Whose Deaths Were Caused by Toxic Exposure On
or Emanating From US Army Base Ft. Detrick; WILFREDO HERNANDEZ;
EMMA HERNANDEZ; ROBERT ANDREW THOMAS, III; RANDY WHITE;
LOUISE MASON, On Her Own Behalf, and On Behalf of All Similarly Situated
Persons Suffering From Diseases Caused by Toxic Exposure On or Emanating
From US Army Garrison, Ft. Detrick; BRANDON F. WHITE, On His Own
Behalf, and On Behalf of All Similarly Situated Persons Suffering From Fear of
Diseases Caused by Toxic Exposure On or Emanating From US Army Garrison
Ft. Detrick,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA, by and Through Its Instrumentalities the
Department of Defense, the U.S. Army And the U.S. Army Garrison Fort Detrick,
Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, Chief District Judge. (1:15-cv-02457-CCB)

Argued: September 15, 2017

Before NIEMEYER, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Decided: October 20, 2017

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ARGUED: Michael Ray Hugo, HUGO & ASSOCIATES, PLLC, Framingham,
Massachusetts, for Appellants.
Christina Maria Falk, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF:
Christopher T. Nace, PAULSON & NACE, PLLC, Washington, D.C., for Appellants.
Chad A. Readler, Acting Assistant Attorney General, J. Patrick Glynn, Director, Torts
Branch, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Current and former residents of Frederick, Maryland brought this suit under the
Federal Tort Claims Act (“FTCA”) for injuries they trace to the United States Army’s
waste disposal and remediation practices at Fort Detrick, an active base within
Frederick’s city limits. The residents’ claim is twofold: First, they allege that the Army
negligently disposed of trichloroethylene, tetrachloroethylene, and other hazardous
chemicals at Fort Detrick.

Second, they accuse the Army of failing to adequately

remediate the resulting groundwater contamination. The plaintiffs sued the Army on
behalf of themselves and others who have suffered personal injuries or death as a result
of being exposed to this waste.
The United States moved to dismiss the case for lack of subject matter jurisdiction,
arguing that the plaintiffs’ claims were barred by the discretionary function exception to
the FTCA, which protects government policy choices from lawsuits. The district court
granted the motion and dismissed the case, relying on the two-step analysis established
by the Supreme Court in Berkovitz v. United States, 486 U.S. 531 (1988) and applied by
this court in Suter v. United States, 441 F.3d 306 (4th Cir. 2006). The Army’s waste
disposal and remediation decisions fell within the discretionary function exception, the
district court determined, because those decisions both involved an element of
discretionary judgment and were susceptible to policy analysis. We agree with the
district court and affirm its decision.
Fort Detrick was home to the Army’s biological warfare program from World War
II until President Nixon ended the program in 1969. From 1955 to the early 1970s, the
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Army disposed of trichloroethylene (“TCE”), tetrachloroethylene (“PCE”), and other
hazardous chemicals by burying them in unlined pits in what is known as Area B-11 at
Fort Detrick. As the district court has explained, this disposal method was standard
industry practice at the time. See Waverley View Inv’rs, LLC v. United States, 79 F.
Supp. 3d 563, 565–66 (D. Md. 2015) (describing the Army’s waste disposal practices at
Fort Detrick). Indeed, by burying the waste in Area B, the Army acted in compliance
with a regulatory directive that expressly approved such disposal. See Pieper v. United
States, No. CCB-15-2457, 2016 WL 4240086, at *5 (D. Md. Aug. 11, 2016) (discussing
Fort Detrick Regulation 385-1).
In 1974, the Army began monitoring groundwater conditions near Area B disposal
areas, and in or around 1991, this effort detected TCE contamination. The following
year, the Army began supplying nearby residents with an alternative water source. In
1997, the Army confirmed that PCE and TCE from the waste disposal pits in Area B-11
had contaminated groundwater under neighboring land. A 25-million-dollar removal
action successfully reduced TCE and PCE concentrations in the groundwater, but further
remediation was estimated at nearly a billion dollars and ultimately rejected as too costly.
Instead, the Army installed protective caps to contain the waste, at a cost of 5.5 million
dollars.
This case began when current and former residents of Frederick brought suit in
federal court under the FTCA, contending that the Army was negligent both in its initial
disposal of toxic materials and in its failure to fully correct the resulting contamination.
The plaintiffs alleged that they and their family members had contracted (or feared
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contracting) cancer, autoimmune disorders, and other diseases – some of which proved
fatal – from exposure to this waste.
The United States moved to dismiss under Rule 12(b)(1) of the Federal Rules of
Civil Procedure, arguing that the court lacked subject matter jurisdiction to hear the case
because the suit was barred under the discretionary function exception to the FTCA. To
defeat the government’s Rule 12(b)(1) motion, the plaintiffs had the burden of proving
that subject matter jurisdiction existed. Piney Run Pres. Ass’n v. Cty. Comm’rs, 523 F.3d
453, 459 (4th Cir. 2008). In a careful and detailed opinion, the district court concluded
that the plaintiffs could not meet that burden, and dismissed their suit for lack of subject
matter jurisdiction. See Pieper, 2016 WL 4240086, at *4–6.
As the district court explained, the FTCA effects only a “limited waiver” of the
federal government’s sovereign immunity from suit. Id. at *3 (quoting Molzof v. United
States, 502 U.S. 301, 305 (1992)). Through the FTCA, the government has allowed itself
to be sued for some tort claims, but not all, and the statute identifies several exceptions to
its waiver of immunity. See 28 U.S.C. §§ 1346(b), 2680. The exception at issue in this
case – the discretionary function exception – is designed to shield government policy
decisions from lawsuits. See Wood v. United States, 845 F.3d 123, 131 (4th Cir. 2017)
(explaining that allowing the threat of tort liability to shape military policy is “exactly
what the discretionary function exception seeks to avoid”). Specifically, under 28 U.S.C.
§ 2680(a), the United States retains its immunity from suit as 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
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the discretion involved be abused.” Congress intended that exception to preclude liability
for choices made by government officials who must exercise judgment on matters of
“social, economic, and political policy.” Suter, 441 F.3d at 310 (citation omitted). And
as the district court recognized, because waivers of sovereign immunity must be strictly
construed, an FTCA plaintiff bears the burden of proving that the government conduct in
question does not fall within the discretionary function exception. Pieper, 2016 WL
4240086, at *3; see also Wood, 845 F.3d at 127.
This was not the district court’s first application of the discretionary function
exception to the Army’s waste disposal and remediation practices at Fort Detrick. In an
earlier FTCA suit challenging the same Army conduct at issue here – this one brought by
the owner of adjacent land – the court dismissed a nearly identical complaint under the
discretionary function exception. See Waverley View, 79 F. Supp. 3d at 565. The Pieper
plaintiffs filed suit in this case shortly after Waverley View was decided, raising the same
basic factual and legal contentions. The district court’s thorough opinion in Waverley
View accordingly guided its decision in Pieper, see 2016 WL 4240086, at *4, and it is
similarly instructive to this court’s analysis.
In Waverley View, the district court began its analysis by setting out the two-step
inquiry that determines whether government conduct falls within the discretionary
function exception. 79 F. Supp. 3d at 569; see Berkovitz, 486 U.S. at 536. The first
question is whether the challenged conduct “involves an element of judgment or choice.”
79 F. Supp. 3d at 569 (quoting Suter, 441 F.3d at 310). Under that prong, the plaintiffs,
to meet their burden, must show that the Army “lacked discretion regarding its waste
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management practices” at Fort Detrick because a “federal statute, regulation, or policy
specifically prescribe[d] a course of action” it was to follow. Id. (citation omitted).
Assuming the challenged conduct does involve judgment or choice, the second question
is whether the plaintiffs can show that those judgments nevertheless fall outside the
discretionary function exception because they are not “based on considerations of public
policy” or “susceptible to policy analysis.” Id. (citation omitted).
The district court in Waverley View then applied this two-step analysis to the same
waste disposal and remediation practices challenged here by the Pieper plaintiffs. First,
the court concluded that the plaintiff in Waverley View had failed to identify any specific,
mandatory legal provision regarding either waste disposal or remediation that left the
Army without the discretion to exercise judgment or choice. Id. at 570–74, 576–77.
Indeed, the court questioned whether some of the provisions cited by the plaintiff created
“mandatory” duties at all, or whether, read in context, they were “closer to statements of
policy goals.” Id. at 570. In any event, the court concluded that none was “sufficiently
specific” to bind the Army to a particular course of conduct. Id. at 571. As to whether
the Army’s judgments had the necessary “policy” dimension, the district court had little
difficulty answering in the affirmative: Disposal determinations required consideration
of multiple policy factors, including “national security, resource constraints, and
environmental impact,” id. at 575, while remediation decisions “required the Army to
balance public safety, health, environmental impact, resource constraints, regulatory
constraints, and stakeholder input,” id. at 577. Accordingly, the district court held that
the plaintiff could not show that the government conduct in question fell outside the
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scope of the discretionary function exception, and granted the government’s motion to
dismiss for lack of jurisdiction. Id. at 578.
The Pieper plaintiffs then filed this very similar suit before the same district court.
According to the plaintiffs, Waverley View did not foreclose their claims, because they
were pointing now to additional legal documents and directives that provided the
mandatory and specific duties the court had found missing in Waverley View.
In the opinion we now review, the district court considered the proffered
documents in detail, and determined that the direction they provided was neither
mandatory nor specific enough to bind the Army. See Pieper, 2016 WL 4240086, at *4–
5. Of the first two documents, Executive Orders issued by President Nixon, the court
noted that one had been considered already in Waverley View, and held that regardless,
neither removed the Army’s discretion. Id. at *4. In particular, the court emphasized that
any duties imposed by the Orders were pitched at a high level of generality – for instance,
a provision stating that “[t]he use, storage, and handling of all [chemical and biological]
materials . . . shall be carried out so as to avoid or minimize the possibilities for water and
air pollution,” id. (citation omitted) – and gave the Army no “specified instructions that it
[wa]s compelled to follow,” id. (quoting Williams v. United States, 50 F.3d 299, 309 (4th
Cir. 1995)). As for the final document, known as Fort Detrick Regulation 385-1, the
court found that it too was neither “mandatory [n]or sufficiently specific to bind the
Army,” and also noted that the very conduct the plaintiffs challenged – the disposal of
potentially contaminated materials in Area B – was expressly contemplated by the
regulation itself. Id. at *5.
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Nor, the court held, could the plaintiffs satisfy their burden under the second step
of the Berkovitz inquiry by showing that the Army’s waste and remediation decisions
“were not susceptible to policy analysis.” Id. at *6. On the contrary, the court found,
those decisions involve the balancing of multiple factors – including national security,
environmental impact, and human health – and “[t]he nature of the military’s function
requires that it be free to weigh environmental policies against security and military
concerns.” Id. (quoting OSI, Inc. v. United States, 285 F.3d 947, 953 (11th Cir. 2002)).
The plaintiffs timely appealed, raising substantially the same arguments they
advanced in the district court. We review the district court’s dismissal for lack of subject
matter jurisdiction de novo. Wu Tien Li-Shou v. United States, 777 F.3d 175, 179 (4th
Cir. 2015). Having carefully considered the controlling law and the parties’ briefs and
oral arguments, we affirm on the reasoning of the district court. The Army’s waste
disposal and remediation practices at Fort Detrick fall squarely within the discretionary
function exception to the FTCA. We express no opinion on the merits of the plaintiffs’
tort claims, because we lack jurisdiction to hear them.
AFFIRMED

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