Bryant v. United States of America
Filing
44
OPINION and ORDER in case 1:10-cv-02741-TWT; denying as moot (37) Motion for Order; granting (61) Motion to Dismiss ; granting (62) Motion to Dismiss ; denying as moot (72) Motion for Oral Argument; denying as moot (77) Motion to Amend; denying as moot (83) Motion for Extension of Time, Motion to Stay; denying as moot (97) Motion to Amend; denying (117) Motion for Reconsideration ; denying (121) Motion for Clerks Entry of Default; denying as moot (123) Motion to Amend; denying as moot (126) Motion to Amend; granting (127) Motion to Dismiss ; denying (143) Motion for Punitive Damages/Exemplary Damages; denying as moot (152) Motion to Strike ; denying (156) MOTION For Additional Award for Damages, MOTION for Relief To Infer the Bivens Remedy and MOTION for Equal Protection Clause; denying as moot (164) Motion to Amend; denying (165) Motion for Permanent Injunction; denying (169) Motion for Clerks Entry of Default; granting (172) Motion for Protective Order; denying (176 ) Motion to Transfer Case; denying (176) Motion to Remand ; denying (178) Motion for Clerks Entry of Default; denying as moot (188) Motion for Hearing; denying (192) Motion for Refund of Filing Fees and Further Relief in case 1:11-md-02218-TWT. This case is DISMISSED. Signed by Judge Thomas W. Thrash, Jr. on 12/5/2016. Associated Cases: 1:11-md-02218-TWT et al.(jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE CAMP LEJEUNE NORTH
CAROLINA WATER
CONTAMINATION LITIGATION
:
:
:
:
:
MULTIDISTRICT LITIGATION
NO. 1:11-MD-2218-TWT
OPINION AND ORDER
This matter is before the Court on the Government’s motion for order relating
to the preservation of documents and electronically stored information [37]; the
Government’s motion to dismiss [61]; the Government’s motion to dismiss for lack
of subject-matter jurisdiction [62]; the Plaintiffs’ motion for oral argument [72];
Plaintiff Bryant’s motion to amend complaint [77]; the Plaintiffs’ motion for
extension of time to complete discovery and to stay [83]; Plaintiff Johnston’s pro se
motion to amend [97]; Plaintiff Douse’s pro se motion for reconsideration [117];
Plaintiff Straw’s pro se motion for clerk’s entry of default [121]; Plaintiff Douse’s
pro se motion to amend [123]; Plaintiff Wright’s motion to amend complaint [126];
the Government’s motion to dismiss all cases based on North Carolina statute of
repose [127]; Plaintiff Douse’s pro se motion for punitive and exemplary damages
[143]; the Government’s motion to strike [152]; Plaintiff Douse’s pro se motion for
additional award of damages, for relief based on Bivens, and for a protective order
[156]; Plaintiff Bryant’s supplemental motion to amend [164]; Plaintiff Straw’s pro
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se motion for permanent injunction [165]; Plaintiff Straw’s pro se fourth motion for
clerk’s entry of default [169]; the Government’s motion for protective order [172];
the Plaintiffs’ motion to transfer pursuant to 28 U.S.C. § 1631 or motion for
conditional suggestion of remand [176]; Plaintiff Straw’s pro se first motion for
clerk’s entry of default [178]; the Plaintiffs’ motion for a hearing [188]; and Plaintiff
Straw’s pro se motion for refund and further relief [192].
I.
Procedural History
In this Multidistrict Litigation (MDL), the Plaintiffs are service members
and/or their family members who allege they were exposed to toxic substances in the
water supply while living at Marine Corps Base Camp Lejeune in North Carolina.
The Plaintiffs further contend that the United States failed to monitor the quality of
the water supply at Camp Lejeune and failed to provide notice to the Plaintiffs
concerning the presence of toxic substances in the water supply. The Plaintiffs allege
that they have suffered illnesses or death as a result of the actions of the United States
and bring their actions pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 2671-2680. There are currently seventeen cases in the MDL and, although the
potential number of plaintiffs is not known, there are currently over 4,000 claimants
in the administrative process with the Department of the Navy.
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Given the amount of time that has passed since it has addressed substantive
matters, the court finds it useful to give a summary of the course of the litigation to
this point. When the Multidistrict Litigation was formed, the court held a scheduling
conference. After hearing from the parties, the court determined that the most
efficient course of action would be to first address two threshold legal questions: (1)
whether the limitations period contained in the Comprehensive Environmental
Response Compensation and Liability (“CERCLA”) preempted the North Carolina
statute of repose; and (2) whether the North Carolina statute of repose had an
exception for latent diseases.1 Answering these two questions has taken the better
part of five years.
Because the court determined that threshold legal issues needed to be addressed
first, the court did not call for the filing of an omnibus complaint.2 But the court did
permit discovery on the Feres doctrine and the Federal Tort Claims Act discretionary
1
See Doc. No. [11], Transcript, April 19, 2011.
2
See Doc. No. [24] (court noted that “allowing for consolidated motions
(and responses) applying these legal arguments to all current Plaintiffs in this MDL
will afford the parties an opportunity to effectively brief these issues without
duplication and will afford the court an opportunity to issue clear rulings on each
legal argument that can guide the future of this MDL”).
3
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function exception.3 The parties had briefed motions to dismiss based on these two
theories.4 Those motions are still pending.
In an order dated September 29, 2011, the court held that although a plain
reading of 42 U.S.C. § 9658 of CERCLA might counsel a different result, based on
the purpose of CERCLA as a remedial statute, section 9658 preempted both statutes
of limitation and statutes of repose.5 Therefore, the court found that the applicable
North Carolina statute of repose contained in North Carolina General Statute § 152(16) barred claims from accruing more than ten years from the last act giving rise
to the cause of action would not apply to the Plaintiffs. A consequence of this
holding was that the court did not then need to consider whether North Carolina’s
statute of repose contained an exception for latent disease. However, the Government
then asked the court to rule on this alternative ground so that the parties could take
an interlocutory appeal to the United States Court of Appeals for the Eleventh Circuit
on both legal rulings. The court agreed to do so and permitted the parties to brief the
3
See Doc. No. [24] (directing 60 day period of discovery on FTCA’s
discretionary function exception and Feres doctrine and staying discovery as to all
other matters).
4
See Doc. Nos. [61] and [62].
5
See Doc. No. [13].
4
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matter of a latent disease exception.6 In an order dated May 11, 2012, the court held
that the statute of repose in North Carolina General Statute § 1-52(16) did not contain
an exception for latent diseases.7
The Government then filed a motion for permission to file an interlocutory
appeal pursuant to 28 U.S.C. § 1292(b).8 The court granted that motion.9 The Court
of Appeals accepted the appeal on October 31, 2012,10 which was docketed as Bryant
v. United States, and held oral argument in the case on January 17, 2014. However,
just days prior to the argument, the United States Supreme Court granted certiorari
in CTS Corp. v. Waldburger, No. 13-339, which would be directly controlling
authority on the issue of CERCLA preemption. The Court of Appeals held its ruling
to await the Supreme Court’s opinion in Waldburger.
On June 9, 2014, the Supreme Court held that CERCLA section 9658 did not
preempt North Carolina’s statute of repose.11 The Eleventh Circuit then took up the
6
See Doc. No. [49].
7
See Doc. No. [68].
8
See Doc. No. [81].
9
See Doc. No. [87].
10
See Doc. No. [89].
11
See CTS Corp. v. Waldburger, ___ U.S. ___, 134 S. Ct. 2175 (2014).
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parties’ appeal. In its opinion, the Court of Appeals recognized the Supreme Court’s
holding in Waldburger as answering the first question and therefore turned to the
second question – whether the North Carolina statute of repose includes an exception
for latent disease.12 Based on the statute as it existed when the Plaintiffs brought their
cases, the Court of Appeals found that the statutory language was unambiguous and
did not contain an exception for latent disease.13
The Eleventh Circuit recognized, however, that shortly after the Supreme Court
issued its decision in Waldburger, the North Carolina legislature amended the statute
of repose to add the following language: “The 10-year period set forth in G.S. 152(16) shall not be construed to bar an action for personal injury, or property
damages caused or contributed to by . . . the consumption, exposure, or use of water
supplied from groundwater contaminated by a hazardous substance, pollutant, or
contaminant.”14 The General Assembly specified that this amendment applied to any
actions “filed, arising, or pending” on or after June 20, 2014.15 Nevertheless, the
Court of Appeals found that the amendment should not apply retroactively because
12
See Bryant v. United States, 768 F.3d 1378 (11th Cir. 2014).
13
Id. at 1381.
14
Id. at 1381-82 (quoting N.C. Gen. Stat. Ann. § 130A-26.3).
15
Id. at 1382.
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it “substantively amended the statute of repose to create an exception for groundwater
contamination and, as a result, can only apply prospectively, lest [the amendment]
divest the Government of a vested right.”16 The Court of Appeals then remanded the
case.
This court accepted the order as mandate and held a Scheduling Conference on
February 25, 2015, during which the Plaintiffs indicated they intended to seek
certiorari as to the Eleventh Circuit’s ruling in Bryant.17 The Supreme Court denied
the Plaintiffs’ petition for writ of certiorari.18 The court held another Scheduling
Conference on January 6, 2016. During that conference, the court directed the
Government to file a motion to dismiss based on the Eleventh Circuit’s holding in
Bryant.19 In addition to responding to the Government’s motion, the Plaintiffs have
filed numerous motions to amend their complaints, as well as a motion to transfer or
remand the Multidistrict Litigation.
16
Id. at 1385.
17
See Doc. Nos. [106] and [109].
18
See 136 S. Ct. 71 (2015).
19
See Doc. No. [124].
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II.
Discussion
A.
Motion to Transfer or Remand
1.
Impact of Stahle and Choice of Law Questions
In their motion to transfer, the Plaintiffs essentially ask that the court
reconsider the outcome of Bryant in light of the Fourth Circuit’s recent ruling in
Stahle v. CTS Corporation.20 The Plaintiffs’ arguments are premised on a contention
that the Fourth Circuit’s holding in Stahle is in conflict with the Eleventh Circuit’s
ruling in Bryant. In Stahle, the plaintiff filed a negligence action alleging that his
leukemia was caused by his exposure to toxic solvents when he was a child. The
Fourth Circuit considered the scope of North Carolina General Statute § 1-52(16) in
relation to Stahle’s claim. The Stahle court first recalled that the Fourth Circuit
previously held in Hyer v. Pittsburgh Corning Corp., that “the [North Carolina]
Supreme Court does not consider disease to be included within a statute of repose
directed at personal injury claims.”21 Although the Stahle court agreed that section 152(16) “functions as a statute of repose directed at certain personal injury claims,” it
found that the “North Carolina General Assembly has not expressly expanded the
20
817 F.3d 96 (4th Cir. 2016).
21
Id. at 100 (citing Hyer, 790 F.2d 30, 34 (4th Cir. 1986).
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language to include disease.”22 Thus, the court found that section 1-52(16) does not
apply to claims arising out of disease.23 The court rejected CTS’s argument that Hyer
addressed a different statute of repose.24 Instead, the court ruled that “we anticipate
that the Supreme Court of North Carolina would rule that Section 1-52(16) is not
applicable to Stahle’s claim arising from disease.”25 The Stahle court then went on
to discuss its disagreement with the Eleventh Circuit’s ruling in Bryant that the plain
language of section 1-52(16) demonstrated that there was no exception for latent
diseases.26
22
Id.
23
Id.
24
Id. at 100-01 (citing Hyer and Wilder v. Amatex Corp., 314 N.C. 550,
336 S.E.2d 66 (1985)). Although the Eleventh Circuit did not discuss Hyer or Wilder
in Bryant, this court did address both of those cases in its determination that section
1-52(16) did not contain an exception for latent diseases. See Doc. No. [68], at 9-14.
The court specifically rejected an argument that the analysis of the North Carolina
Supreme Court in Wilder directly applies here because the statute of repose discussed
in Wilder is materially different than that considered in this case. Id. The court also
noted that no North Carolina case had cited Hyer, but rather it had been cited only by
other Fourth Circuit cases. Id. In Bryant, without a discussion of Hyer and Wilder,
the Eleventh Circuit outright rejected the interpretation proffered by Stahle, finding
that it ignored the plain language of the statute. See Bryant, 768 F.3d at 1381.
25
817 F.3d at 104.
26
Id. at 104-07.
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There can be no dispute that under the “law of the case” doctrine, the court
must apply the Eleventh Circuit’s ruling in Bryant.27 There are only three exceptions
to this doctrine: (1) discovery of new evidence, (2) controlling authority that renders
Bryant contradictory, and (3) the ruling is clearly erroneous and would work manifest
injustice. None of these exceptions is present here. In candor, the court is troubled
by the argument raised by the Plaintiffs’ Liaison Counsel that this court “certainly
does not owe blind deference to the erroneous 11th Circuit Bryant opinion.”28 The
Plaintiffs rely upon a quote from Rutherford v. Columbia Gas that “some courts have
recognized that the obligation to properly determine state law is more important than
the general dictate to defer to prior federal precedent construing state law.”29 The
Plaintiffs’ quote does not come from the majority opinion in Rutherford. Rather, it
comes from the concurring and dissenting opinion.30 Moreover, Rutherford involved
whether a panel of the Sixth Circuit was bound to follow a prior Sixth Circuit panel’s
interpretation of Ohio law when that interpretation was based on an opinion of a
27
See, e.g., Venn v. St. Paul Fire & Marine Ins. Co., 99 F.3d 1058, 1063
(11th Cir 1996) (“Under the law of the case doctrine, both the district court and the
appellate court are generally bound by a prior appellate decision of the same case.”).
28
See Doc. No. [160], at 15-16.
29
575 F.3d 616 (6th Cir. 2009).
30
Id. at 624 (Clay, J., concurring in part and dissenting in part).
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lower Ohio court. The discussion in Rutherford was not whether a district court had
to follow the precedent of its own circuit court of appeals in the same case. On this
matter, there really can be no dispute. Obviously, this court’s circumstances are
vastly different. There can be no dispute that as a district court, this court must
follow Bryant.
Similarly irrelevant for this court is whether any one federal court of appeals
must follow another federal court of appeals’ view of state law. Yet, the Plaintiffs
cite to Factors Etc., Inc. v. Pro Arts, Inc.,31 as if it provides some authority for this
court to disregard Bryant when Factors really discusses whether the Second Circuit
should follow the Sixth Circuit’s interpretation of a matter of state law. It is
axiomatic that the Second Circuit is not controlled by the Sixth Circuit.
Finally, the Plaintiffs expend a great deal of energy arguing why the Eleventh
Circuit was incorrect in its interpretation of North Carolina law and should have
reached the same outcome as Stahle.32 Again, as a district court, this court is bound
to follow Bryant. This court has no authority or desire to reconsider an opinion of the
Eleventh Circuit. Moreover, simply because the Fourth Circuit sits in North Carolina
does not render it as the final authoritative word on the interpretation of North
31
652 F.2d 278, 283 (2d Cir. 1981).
32
See Doc. No. [160], at 16-22.
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Carolina law. The Fourth Circuit – like all federal courts across the country – is
charged with making an Erie prediction as to what the highest court of North Carolina
would say about North Carolina state law.33 Regardless of whether as a practical
matter, the Fourth Circuit might have more experience in interpreting North Carolina
law, there is nothing “binding” about the Fourth Circuit’s decision in Stahle as to
other federal courts of appeal, or even as to North Carolina state courts, of course.
Moreover, the court notes that the decision in Stahle, itself, is a cogent
reminder of the fact that North Carolina law remains highly unsettled in this area. In
her concurring opinion, Judge Thacker noted two factors that this court had
previously relied upon in finding that section 1-52(16) does not contain an exception
for latent diseases: (1) Hyer can only be considered dicta because it construed a
materially different statute than section 1-52(16); and (2) Hyer has not been cited by
a reported North Carolina decision.34 Judge Thacker went even further in discussing
the muddied waters of North Carolina law in this area in noting that the North
Carolina Supreme Court as well as now four different federal circuits have reached
33
See, e.g., Molinos Valle Del Cibao C. por A. v. Lama, 633 F.3d 1330,
1348 (11th Cir. 2011) (citing Guideone Elite Ins. Co. v. Old Cutler Presbyterian
Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005)).
34
See Stahle, 817 F.3d at 111-12 (Thacker, J., concurring).
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conflicting conclusions on the question of whether “personal injury” in North
Carolina encompasses a claim for “disease.” She stated:
The Supreme Court of North Carolina itself has sent mixed
signals about the scope of § 1–52(16). Compare Dunn v. Pac. Emp’rs
Ins. Co., 332 N.C. 129, 418 S.E.2d 645, 647–48 (1992) (holding that, in
an action based on the decedent’s death from cancer based on exposure
to hazardous chemicals, § 1–52(16) would be the proper statute of
limitations for the underlying claim for bodily injury), and Wilder, 336
S.E.2d at 69 (suggesting that “the statute of limitations contained in the
first clause of G.S. 1–52(16)” “govern[s] all negligence claims”), with
Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 853 n. 2 (1988)
(suggesting that § 1–52(16) was “intended to apply to plaintiffs with
latent injuries,” and is “inapplicable” to claimants who are “aware of
[their] injury as soon as it occur[s]”), and Misenheimer [v. Burris], 637
S.E.2d [173], 175–76[, 360 N.C. 620 (2006)] (explaining that latent
injury claims remain subject to the statute of repose in § 1–52(16)); see
also Ante at 109-10.
And outside of North Carolina’s borders, after the publication of
this decision, four circuits will have addressed this state law question,
all with different views of the statute’s scope. Compare In re Dow
Corning Corp., 778 F.3d 545, 552 (6th Cir. 2015) (“The Fourth Circuit
has consistently applied th[e] ‘disease exception,’ first announced by the
North Carolina Supreme Court in Wilder v. Amatex, to diseases
incurred from exposure to harmful products”), and Bryant v. United
States, 768 F.3d 1378, 1381 (11th Cir. 2014) (holding that the statute of
repose in § 1–52(16) unambiguously applies to disease claims), and
Klein v. DePuy, Inc., 506 F.3d 553, 559 (7th Cir. 2007) (in holding that
“§ 1–52(16) is not limited to latent injury claims,” relying on Dunn and
Wilder, rejecting Hyer, and ignoring Misenheimer).35
35
Id. at 114.
13
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For this court, of course, the Eleventh Circuit’s ruling in Bryant is binding.36
In addition, the Plaintiffs argue that Stahle is now binding authority on North
Carolina law and for this reason, the court must reconsider its prior ruling and should
apply Stahle and not Bryant. There are numerous reasons why the Plaintiffs’
argument is an incorrect statement of the law. The Plaintiffs first argue that because
most of the underlying cases were filed in North Carolina, the court must apply North
Carolina law under the “transferee/transferor” theory. As to the Plaintiffs from other
states, the Plaintiffs contend that the court would have to undertake a choice of law
analysis based on the individual facts and causes of action pleaded in each of those
complaints.
Before addressing the Plaintiffs’ arguments concerning whether this court is
bound to apply the law of the transferor forum, the court finds it useful to delve at
some depth into the basis for this court’s jurisdiction. As the Government points out,
these cases have been brought under the Federal Tort Claims Act and as such, the
basis for jurisdiction is not diversity, but rather original federal question jurisdiction
36
The Plaintiffs also contend that § 1-52(16) does not apply to any causes
of action that are not based on North Carolina law. Some of the Plaintiffs have raised
wrongful death, intentional infliction of emotional distress, and post-discharge failure
to warn claims. To the extent such claims exist under state law other than North
Carolina and are not barred by the North Carolina statute of repose, the court
addresses them below in conjunction with the discretionary function exception under
the Federal Tort Claims Act.
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under the Federal Tort Claims Act.37 Much of the argument made by the Plaintiffs
is based on their incorrect assumption that this is a diversity action. For example, the
Plaintiffs are correct that in a diversity action, the MDL court must apply the law of
the transferor forum, that is, the law of the state in which the action was filed,
including the transferor forum’s choice-of-law rules.38 In diversity actions, the
transferee-transferor considerations can be quite complex.39 But the court need not
reach these issues because this is not a diversity case.
When an MDL court (the “transferee” court) has a case with jurisdiction based
on federal law, it does not apply the law of the transferor court as it would under Van
Dusen/Ferens, rather the transferee court should follow the law of its own circuit on
37
See, e.g., James Ventures, L.P. ex rel. Alpert v. Timco Aviation Servs.,
Inc., 315 F. App'x 885, 888 (11th Cir. 2009).
38
See, e.g., Ferens v. John Deere Co., 494 U.S. 516, 524 (1990); Van
Dusen v. Barrack, 376 U.S. 612 (1964).
39
See, e.g., Wahl v. General Electric Co., 786 F.3d 491 (6th Cir. 2015)
(discussing application of Van Dusen/Ferens in Multidistrict Litigation in conjunction
with distinctions between § 1404 and § 1406).
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questions of federal law.40
“As a general rule, questions of federal law in
MDL-transferred cases are governed by the law of the transferee circuit.”41
The court must now consider under Eleventh Circuit authority which law to
apply to the Plaintiffs’ federal cause of action under the Federal Tort Claims Act. “It
is well settled that the United States, as a sovereign entity, is immune from suit unless
it consents to be sued.”42 “Through the enactment of the FTCA, the federal
government has, as a general matter, waived its immunity from tort suits based on
state law tort claims.”43
The Zelaya court also explained that:
40
See, e.g., In re Korean Air Lines Disaster of September 1, 1983, 829
F.2d 1171 (D.C. Cir. 1987), aff’d on other grounds sub nom. Chan v. Korean Air
Lines, Ltd., 490 U.S. 122 (1989); U.S. ex rel. Hockett v. Columbia/HCA Healthcare
Corp., 498 F. Supp. 2d 25, 39-40 (D.D.C. 2007).
41
Hockett, 498 F. Supp. 2d at 40. The Plaintiffs’ citation to In re Dow
Corning Corp. (Sutherland v. DCC Litig. Facility), 778 F.3d 545 (6th Cir. 2015), does
not counsel a different result. In Sutherland, the plaintiff had filed a diversity
personal injury case against the defendant. When the defendant entered into
bankruptcy, the federal district court transferred the personal injury case to the court
overseeing the defendant’s bankruptcy proceedings. Id. at 549. The Sixth Circuit
recognized that although this was “not quite a diversity case,” the court should still
apply the state law of the transferor court in which the personal injury case was
originally filed. Id. at 549-51. These are not the circumstances of this case.
42
Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015).
43
Id. (citing Millbrook v. United States, ___ U.S. ___, 133 S. Ct. 1441,
1443 (2013)).
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Any plaintiff seeking to sue the United States under the FTCA must
satisfy two initial statutory burdens to establish jurisdiction. Clark v.
United States, 326 F.3d 911, 912 (7th Cir. 2003). First, as with all
suitors in federal courts, the plaintiff must identify an explicit statutory
grant of subject matter jurisdiction, which in the case of the FTCA is 28
U.S.C. § 1346(b)(1). Id. This statute provides:
Subject to the provisions of chapter 171 of this title [i.e.,
28 U.S.C. §§ 2671–2680], the district courts . . . shall have
exclusive jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and after
January 1, 1945, for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law
of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). Translated, any time the
federal government is sued based on the act of an employee performed
within the scope of his employment duties, federal district courts will
have exclusive jurisdiction of such claims. In addition, § 1346(b)(1)
sets, as a predicate, a requirement that the circumstances be such that a
private person would be liable under the law of the state where the
federal employee's act or omission occurred, had a private person so
acted.44
The “reference in § 1346(b)(1) to ‘the law of the place where the act or omission
occurred’ means the law of the state where the alleged tort occurred.”45 “Because the
44
Id.
45
Id. at 1323 (citing Stone v. United States, 373 F.3d 1129, 1130 (11th Cir.
2004)).
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United States is a sovereign entity, the second jurisdictional requirement is a statute
that waives its sovereign immunity.”46 The court discusses this second requirement
in more detail below when addressing the discretionary function exception.
The “law of the place where the act or omission occurred” means “the whole
law of the State where the act or omission occurred,” including the choice of law
rules of that state.47 “The plaintiff’s injury is considered to be sustained in the state
‘where the last act occurred giving rise to [the] injury.’”48 Here, there can be no
dispute but that the place is North Carolina, the state in which all of the Plaintiffs
resided at the time they allege they were exposed to a contaminated water supply at
Camp Lejeune. All actions with respect to the water supply at Camp Lejeune took
place in North Carolina. North Carolina applies the traditional lex loci delicti rule in
tort cases.49 Significantly, under North Carolina law, a statute of repose is considered
46
Id. at 1322.
47
See Richards v. United States, 369 U.S. 1, 11 (1962); Schippers v.
United States, 715 F.3d 879, 886 (11th Cir. 2013).
48
Harco, 206 N.C. App. at 694, 698 S.E.2d at 724.
49
See, e.g., Boudreau v. Baughman, 322 N.C. 331, 335, 368 S.E.2d 849,
853-54 (1988); Harco Nat’l Ins. Co. v. Grant Thornton LLP, 206 N.C. App. 687, 692,
698 S.E.2d 719 (2010).
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substantive law and therefore is also part of the “law of the place” of North
Carolina.50
While the FTCA does direct that North Carolina law applies as the “law of the
place where the act or omission occurred,” the fact that federal law points to state law
for its choice of law does not mean that the cause of action arises under state law.
This is not a distinction without a difference, as this very case shows. There is only
one federal law. The court applies the federal law as located in its controlling
precedent – in this case, Bryant. The court does not ignore the fact that – as it turns
out – the Eleventh Circuit and the Fourth Circuit have reached different conclusions
as to the interpretation of North Carolina law to be applied to this federal question
under the FTCA. But that simply happens to be a product of the fact that there are
different federal courts of appeal in the United States. A plaintiff has no “right” to
the Fourth Circuit’s interpretation of North Carolina law over the Eleventh Circuit’s
interpretation. Once the determination was made to put these cases into an MDL
assigned to the United States District Court for the Northern District of Georgia, that
choice was fixed as to the Eleventh Circuit’s interpretation.
50
See, e.g., Christie v. Hartley Constr., Inc., 367 N.C. 534, 766 S.E.2d 283
(2014); Boudreau, 322 N.C. at 341, 368 S.E.2d at 857 (“If the action is not brought
within the specified period, the plaintiff ‘literally has no cause of action. The harm
that has been done is damnum absque injuria – a wrong for which the law affords no
redress.’” (citation omitted)).
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Perhaps understanding that this court has no choice but to follow Bryant, the
Plaintiffs make several suggestions as to procedural options the court could exercise
as a means of avoiding the outcome dictated by Bryant. First, the Plaintiffs
recommend that the court “remand” this case. Second, the Plaintiffs suggest that if
the court finds there is no subject-matter jurisdiction, it should “transfer” the cases
back to the United States District Court for the Eastern District of North Carolina.51
For the reasons explained below, neither of these procedural options is available to
the court.
The court begins by noting the procedure under which these cases were
transferred to the Northern District of Georgia. Pursuant to 28 U.S.C. § 1407, the
United States Judicial Panel on Multidistrict Litigation may transfer “civil actions
involving one or more common questions of fact [] pending in different districts . .
. to any district for coordinated or consolidated pretrial proceedings.”52 “Each action
so transferred shall be remanded by the panel at or before the conclusion of such
proceedings to the district from which it was transferred unless it shall have been
previously terminated.”53 Here, the Judicial Panel found under section 1407 that all
51
See Doc. No. [176].
52
28 U.S.C. § 1407.
53
Id.
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actions shared “factual questions arising out of alleged death or injuries due to
contaminated drinking water on the Marine Corps Base at Camp Lejeune” and should
be centralized.54
The Plaintiffs contend that when jurisdiction is lacking, remand under 28
U.S.C. § 1631 to the Court of Appeals that does have jurisdiction is the proper course
of action. The court cannot agree. Title 28 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of
this title or an appeal, including a petition for review of administrative
action, is noticed for or filed with such a court and that court finds that
there is a want of jurisdiction, the court shall, if it is in the interest of
justice, transfer such action or appeal to any other such court in which
the action or appeal could have been brought at the time it was filed or
noticed, and the action or appeal shall proceed as if it had been filed in
or noticed for the court to which it is transferred on the date upon which
it was actually filed in or noticed for the court from which it is
transferred.55
Courts have applied section 1631 where a plaintiff files a case “in the wrong court for
very understandable reasons” and requiring re-filing in the right court might raise
statute of limitations issue.56 That is not the situation facing the Plaintiffs here. For
the claims barred by North Carolina’s statute of repose, there is no “right court” in
54
See Doc. No. [1], Transfer Order.
55
28 U.S.C. § 1631.
56
See, e.g., ITT Base Servs. v. Hickson, 155 F.3d 1272, 1276 (11th Cir.
1998).
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which the claims could be filed. Those claims have been extinguished by operation
of North Carolina substantive law.57
Most significantly, the Plaintiffs offer no response to the Government’s
argument that any remand or transfer is barred by Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach.58 In Lexecon, Lexecon was one of several defendants in
a Multidistrict Litigation case concerning economic losses resulting from the failure
of the Lincoln Savings & Loan. While the MDL proceeded on pretrial issues, the
plaintiffs and Lexecon reached a settlement. Lexecon then filed a state law action
against class counsel for the plaintiffs. That case was also transferred into the
Multidistrict Litigation. After the remaining parties in the litigation reached a
settlement, Lexecon asked for its case against class counsel to be “remanded,” but
class counsel asked for the case to be “transferred” under 28 U.S.C. § 1404 to the
same court having presided over the pretrial proceedings in the MDL.
The Supreme Court held that the MDL court had no authority to “transfer” any
individual case under section 1404. The Court began with the language of section
57
To the extent the court reaches below an alternative ruling that the
Plaintiffs’ claims are also barred by the discretionary function exception to the FTCA,
that holding arises out of issues related to sovereign immunity and that is also not an
issue that can be “corrected” by remand or transfer to a different court.
58
523 U.S. 26 (1998).
22
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1407(a) which authorizes the Judicial Panel on Multidistrict Litigation to transfer
civil actions with common issues of fact “to any district for coordinated or
consolidated pretrial proceedings,” but imposes a duty on the Judicial Panel to
remand any such action to the original district “at or before the conclusion of such
pretrial proceedings.”59 But the Court also noted the language of the Judicial Panel’s
Rule 14(b) which provides that “[e]ach transferred action that has not been terminated
in the transferee district court shall be remanded by the Panel to the transferor district
for trial, unless ordered transferred by the transferee judge to the transferee or other
district under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406.”60 Further, the Court noted
that the language of § 1407(a), itself, applied only to pretrial proceedings and did not
specifically bar a “self-transfer.”61
Ultimately, however, the Court found that “textual pointers” lead to the
opposite conclusion that there could not be such a “transfer” because of the
mandatory “shall” preceding the direction to remand the cases at the conclusion of
pretrial proceedings.62 “In the absence of any indication that there might be
59
Id.
60
Id. at 33.
61
Id. at 33-34.
62
Id. at 35.
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circumstances in which a transferred case would be neither ‘terminated’ nor subject
to the remand obligation, then, the statutory instruction stands flatly at odds with
reading the phrase ‘coordinated or consolidated pretrial proceedings’ so broadly as
to reach its literal limits, allowing a transferee court’s self-assignment to trump the
provision imposing the Panel’s remand duty.”63 The Court continued: “Section
1407(a) speaks not in terms of imbuing transferred actions with some new and
distinctive venue character, but simply in terms of ‘civil actions’ or ‘actions.’ It says
that such an action, not its acquired personality, must be terminated before the Panel
is excused from ordering remand.”64 Thus, the Court found that Rule 14(b) was
inconsistent with the statutory language of section 1407(a).65 The Supreme Court
viewed section 1407 not as a jurisdictional statute, but rather as a “venue statute that
. . . categorically limits the authority of courts (and special panels) to override a
plaintiff’s choice [of forum].”66 Accordingly, an MDL transferee court cannot order
a transfer of a case from the MDL back to itself or to any other district court directly.
63
Id.
64
Id. at 37.
65
Id. at 40.
66
Id. at 42.
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Lexecon’s bar has been interpreted broadly.67 At least two other courts have
held that Lexecon’s bar on transfer under section 1404 extends to transfer under
section 1631 to correct some jurisdictional defect.68 It is true that this court as the
transferee court may “suggest” to the Judicial Panel that it should remand the case.69
But for all of the reasons given in this order, the court does not find any compelling
reason to make such a suggestion.
The Plaintiffs also argue that the issue is one of “venue” because the Fourth
Circuit would permit these cases to proceed based on its interpretation of North
Carolina law, and the Eleventh Circuit will not. The court again does not agree with
this characterization. Venue in this case is not “improper” as the term is used in
67
See In re Asbestos Prods. Liab. Litig. (No. VI), 965 F. Supp. 2d 612, 622
(E.D. Pa. 2013) (“It follows, therefore, that after an MDL transferee court has seen
an MDL case through the pretrial phase, the MDL court can either rule on the dispute,
or suggest to the JPML that it be remanded to the transferor court for trial. Succinctly
put, Lexecon does not allow an MDL transferee court to transfer a case back to itself
for trial; nor does Lexecon leave room for the MDL transferee court to transfer MDL
cases to other districts directly.”).
68
See In re Chiquita Brands Int’l, Inc. Alien Tort Statute & S’holder
Derivative Litig., ____ F. Supp. 3d ____, 2016 WL 3247913 (S.D. Fla. June 1,
2016); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., MDL No. 1873, 2012
WL 1580761 (E.D. La. May 4, 2012) (observing that under Lexecon district court
could transfer directly-filed cases under § 1406(a) but likely not tagalong cases).
Compare In re Western States Wholesale Natural Gas Antitrust Litig., MDL No.
1566, 2010 WL 2539728 (D. Nev. June 4, 2010) (cannot transfer MDL case under
§ 1631 unless party waives venue).
69
See Panel Rule 10.1(b).
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section 1406(a). The fact that the United States Court of Appeals for the Fourth
Circuit has construed North Carolina law in a way that is more favorable to the
Plaintiffs’ position than the interpretation of North Carolina law offered by the United
States Court of Appeals for the Eleventh Circuit does not mean that this court is an
“improper” venue.
The Judicial Panel on Multidistrict Litigation determined that these cases
should be transferred to the Northern District of Georgia and the Plaintiffs have
offered no argument that this decision was procedurally flawed other than the fact
that they had asked the Judicial Panel on Multidistrict Litigation to consolidate these
cases for pretrial proceedings in the United States District Court for the Eastern
District of North Carolina where several of the cases were pending. The Judicial
Panel, however, was under no obligation to follow that request.
The Plaintiffs also complain that Erica Bryant (the only plaintiff who filed in
the Northern District of Georgia) had asked this court – prior to the formation of the
MDL – to transfer the case to the Eastern District of North Carolina. This court did
not rule on that motion prior to the transfer of the MDL to the Northern District of
Georgia and then denied the motion as moot once the MDL was transferred. Again,
there is nothing improper in the sequencing of these events. But the Plaintiffs
contend that the holding of Bryant will result in a “miscarriage of justice” because the
26
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Eleventh Circuit’s ruling on the statute of repose applies “simply because of where
the Panel decided to transfer all of the cases, even in the face of Bryant’s earlier
request for transfer.”70 However, these are the kinds of decisions that are made every
day in MDL litigation and consolidation assignments. It is not enough to argue that
the decision turned out not to be favorable to the Plaintiffs and therefore is a
“miscarriage of justice.” The Plaintiffs fail to substantiate in any way their argument
that this outcome violates their Equal Protection and Due Process rights.71
This is different than a situation in which a plaintiff truly filed in the wrong
venue or filed in a district court that lacked personal jurisdiction over a defendant.
In those cases, the plaintiff might argue a potential miscarriage of justice. Here,
rather, the “jurisdictional” or “venue” argument raised by the Plaintiffs is actually an
argument against the substantive ruling by the Bryant court that the claims have been
extinguished as a matter of law by a statute of repose under North Carolina law – the
law which would apply to the Plaintiffs’ claims no matter where they are filed. The
Plaintiffs ask for remand or transfer here solely as a means of avoiding the outcome
required by the Eleventh Circuit’s ruling in Bryant. Under these circumstances, the
70
See Doc. No. [176], at 12.
71
Id. at 13.
27
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court finds that this is not a proper basis for remand or transfer, even if the court had
the authority to do either.
Finally, the Plaintiffs argue that the Multidistrict Litigation is a “nullity”
because the court did not establish a Steering Committee or direct the Plaintiffs to file
an omnibus complaint. The court finds this argument to be totally without merit. As
the court explained above, it made the determination to address the threshold legal
issues in the case first because of the possibility that those legal matters could be
outcome determinative. As it turns out, they were. The court understands the
Plaintiffs’ frustration that it took five years to reach a conclusion on these issues, but
that is an unfortunate reality of litigation when arguments are raised to the level of the
United States Supreme Court.
In finding that it is bound by Bryant and the North Carolina statute of repose
bars the Plaintiffs’ claims, the court is not indifferent to the assertions made by the
Plaintiffs here. The Plaintiffs have raised serious allegations and contend they and
their families have suffered very serious consequences as a result of the
contamination of the water supply at Camp Lejeune. But the nature of the Plaintiffs’
allegations cannot alter the court’s obligation to follow the law.
28
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2.
New Theories of Liability
Given the substantive outcome of the Eleventh Circuit and Supreme Court
cases, in their most recent motions, the Plaintiffs have contended that the North
Carolina statute of repose that has been at issue for the entirety of this litigation is not
actually the statute of repose the court should apply. While the Plaintiffs recognize
that it would have been better for them to have raised this argument at the inception
of this litigation five years ago, they say it is an issue of subject-matter jurisdiction
which the court must address at any stage of the litigation.
The Plaintiffs now argue that the applicable North Carolina statute of repose
is one related to real property.72 The Government responds that the real property
72
Plaintiff Wright has filed a proposed amended complaint with
allegations geared toward this new argument about the statute of repose, as well as
the Government’s arguments on the discretionary function exception to the FTCA
discussed below. Plaintiff Bryant has also filed several proposed amended
complaints. Despite the fact that the court has not granted leave to amend, the court
considers the factual allegations raised by Plaintiffs Wright and Bryant in the interest
of judicial economy.
Given that even considering the additional allegations in Plaintiff Wright’s and
Plaintiff Bryant’s proposed amended complaints, the court determines that the
Plaintiffs’ claims are barred under North Carolina’s statute of repose as well as the
Feres doctrine and the discretionary function exception to the Federal Tort Claims
Act, the court DENIES AS MOOT Plaintiff Bryant’s motion to amend complaint
[77]; DENIES AS MOOT Plaintiff Wright’s motion to amend complaint [126] and
DENIES AS MOOT Plaintiff Bryant’s supplemental motion to amend [164].
Because the court denies these motions as moot, the court need not consider the
Government’s arguments that the Plaintiffs should not be permitted to amend their
complaints for various procedural reasons or because they are dilatory and futile. The
court DENIES AS MOOT the Government’s motion to strike [152].
29
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statute of repose does not apply because the Plaintiffs’ alleged injuries arise out of
contamination of the water supply at Camp Lejeune and not any structural or
architectural defect in the real property improvements.
In her proposed amended complaint addressing the real property statute of
repose, Plaintiff Wright asserts that there are three sources of contamination of the
Camp Lejeune water supply: (1) the dry cleaners at Tarawa Terrace, (2) leaking
storage tanks at the Hadnot Point aquifer, and (3) surreptitious dumping of chemical
contaminants from training exercises for firemen. The Plaintiffs contend that the
Tarawa Terrace and Hadnot Point contamination go to wells, underground piping and
delivering systems, and water treatment plants that constitute “improvements to real
property” and thus implicate North Carolina General Statute § 1-50(a)(5) which
contains a shorter six year statute of repose than § 1-52(16). Further, the Plaintiffs
contend a defendant may not take advantage of the six year statute of repose under
§ 1-50(a)(5) if the property owner was in actual control or possession of the
improvement and knew or should have known of the defective and unsafe conditions
or the property owner engaged in willful or wanton negligence or concealment.73
73
Section 1-50(a)(5)(d) provides:
The limitation prescribed by this subdivision shall not be
asserted as a defense by any person in actual possession or
control, as owner, tenant or otherwise, of the improvement
at the time the defective or unsafe condition constitutes the
proximate cause of the injury or death for which it is
30
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North Carolina General Statute § 1-50(a)(5) provides:
No action to recover damages based upon or arising out of the defective
or unsafe condition of an improvement to real property shall be brought
more than six years from the later of the specific last act or omission of
the defendant giving rise to the cause of action or substantial completion
of the improvement.74
In Wilson v. McLeod Oil Co.,75 the North Carolina Supreme Court discussed
§ 1-50(a)(5) and the purpose of its statute of repose. The Court explained that the:
exception found in this section is based on the continued duty of owners
and tenants to inspect and maintain the premises. Gillespie v. Coffey, 86
N.C.App. 97, 356 S.E.2d 376 (1987). Furthermore, § 1–50(5) was not
intended to limit the liability of persons in the Warrens’ situation
because it was “designed to limit the potential liability of architects,
contractors, and perhaps others in the construction industry for
improvements made to real property.” Lamb v. Wedgewood South
Corp., 308 N.C. 419, 427–28, 302 S.E.2d 868, 873 (1983) (interpreting
similar language in an earlier version of the statute). This statute limits
the liability for certain groups who might otherwise be subject to a
longer statute of limitation. Id. at 427, 302 S.E.2d at 873. The exception
in this statute indicates that the limited period of liability was not
intended to apply to those in actual possession or control of the land if
they knew or had reason to know of the defect.76
proposed to bring an action, in the event such person in
actual possession or control either knew, or ought
reasonably to have known, of the defective or unsafe
condition.
See N.C. Gen. Stat. § 1-50(a)(5)(d).
74
N.C. Gen. Stat. § 1-50(a)(5).
75
327 N.C. 491, 398 S.E.2d 586 (1990).
76
Id. at 517, 398 S.E.2d at 600.
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Later cases confirm the fact that § 1-50(a)(5) was meant to address the liability of
architects, designers, and contractors. For example, in Dawson v. North Carolina
Department of Environment and Natural Resources,77 the court considered the
purpose of § 1-50(a)(5) and noted that:
the plain language of the statute indicates that the statute does not apply
unless the action “aris[es] out of the defective or unsafe condition of an
improvement to real property.” N.C. Gen. Stat. § 1–50(a)(5)(a). Indeed,
our Supreme Court has held:
In order for this statute to apply, three circumstances must
exist: (1) the action must be for recovery of damages to
real or personal property, (2) the damages must arise out of
the defective and unsafe condition of an improvement to
real property, and (3) the party sued must have been
involved in the designing, planning, or construction of the
defective or unsafe improvement.
Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 302, 271 S.E.2d
385, 391 (1980) (emphasis added).
Similarly, in Trustees of Rowan Tech. Coll. v. J. Hyatt Hammond
Assocs., 313 N.C. 230, 239, 328 S.E.2d 274, 280 (1985) (emphasis
added), the Court held that N.C. Gen. Stat. § 1–50(a)(5) “deals with
actions for damages for breach of contract, negligence, and recovery of
economic or monetary loss in general arising from faulty repair or
improvement to real property against, among others, persons who
furnish the design for or supervise the construction of such repair or
improvement. . . .” Phrased differently, the statute “deals expressly with
claims arising out of defects in improvement to realty caused by the
performance of specialized services of designers and builders.” Id., 328
S.E.2d at 279–80 (emphasis added).
77
204 N.C. App. 524, 694 S.E.2d 427 (2010).
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In sum, a prerequisite for application of N.C. Gen. Stat. § 1–50(a)(5) is
that there must have been an improvement to real property and that
improvement must be either defective or unsafe.78
Here, the Plaintiffs contend that the wells, underground piping and delivery
systems, and water treatment plants constitute improvements to real property under
§ 1-50(a)(5). The Plaintiffs assert that the wells and water treatment plants were
contaminated and therefore were unsafe or defective. Presuming that § 1-50(a)(5) is
the appropriate statute of repose, the Plaintiffs then go on to state that the
Government cannot take advantage of this statute of repose because it has remained
the landowner of the property in question and was aware of the “improvements”
regarding the water treatment system and engaged in “willful and wanton
negligence.”
Significantly, however, there is no contention that the design or construction
of the water treatment plants or wells was defective such that it caused the
contamination of the water. Rather, the Plaintiffs clearly assert that the Government
78
Id. at 529-30, 694 S.E.2d at 431 (footnote omitted); see also Forsyth
Mem’l Hosp., Inc. v. Armstrong World Indus., Inc., 336 N.C. 438, 447, 444 S.E.2d
423, 429 (1994) (referring to § 1-50(a)(5) as “statute of repose governing actions
against a materialman arising out of improvement to real property.”); Trustees of
Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., 313 N.C. 230, 239, 328 S.E.2d
274, 280 (1985) (“Our decision is further bolstered by the fact that § 50(5) was
enacted, like many similar statutes across the country, at the urging of architects and
builders in order to protect them against claims arising long after their work had been
accomplished.”).
33
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itself, or individuals permitted by the Government to be on the property, dumped
chemicals into the ground such that the water table became contaminated. It is the
dumping and the failure to monitor water quality, the Plaintiffs contend, that caused
the contamination, not any malfunction with the water treatment and delivery system.
There is no contention that the water treatment system failed to operate as designed.
Based on these allegations, the court finds that section 1-50(a)(5) does not apply
because the issue here is not one of a “defective or unsafe condition of an
improvement to real property.” Thus, the statute of repose in § 1-52(16) does apply.79
For all of the foregoing reasons, the court reaffirms that the ten-year North
Carolina statute of repose in § 1-52(16) applies to the Plaintiffs’ claims. There
appears to be no disagreement that the affected wells were taken out of use in 1987.
The earliest claim made by any Plaintiff was in 1999, after the ten-year period of
repose had expired. The Plaintiffs’ claims, therefore, are barred. However, the
Plaintiffs now argue that there is a factual dispute as to when the Government took
its last action that would start the repose clock ticking. The Plaintiffs offer two
theories: (1) the Government continued to make omissions during the ten-year period
of repose; and (2) newly discovered evidence gives rise to a recent duty to warn claim
79
See Wilson, 327 N.C. at 518, 398 S.E.2d at 600 (where landowners
knew of presence of underground tanks, they could not avail themselves of six year
statute of repose and § 1-52(16) applied).
34
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not barred by the statute of repose. The Plaintiffs point to a 2012 report of the
Agency of Toxic Substances Disease Registry (“ATSDR”) that contamination also
occurred at the Hadnot Point fuel farm and that contamination by chlorinated solvents
occurred in the drinking water at Camp Lejeune from at least 1957 through 1987.
The Plaintiffs contend that the Government failed to warn of this contamination and
engaged in fraudulent concealment of information.
Specifically, the Plaintiffs allege: (1) the Government delayed sufficient testing
and shut down of the impacted wells from at least 1982 and reliable testing was not
reported until 2010, (2) the Government covered up the causal link between
contamination and injuries by concealing information about groundwater
contamination, (3) the Government continues to “instill confidence” in those exposed
that there is no link between the contamination and injury and “instill doubt” in the
minds of victims that there was any problem, (4) the Government repeatedly
attempted to hide information about contamination, (5) the Government did not notify
victims of potential contamination until 2008 and the notification letter, itself,
continued the Government’s concealment, and (6) all of these acts caused victims to
delay seeking treatment for latent diseases and to delay filing suit.80
80
See Doc. No. [160], at 25-28 (collecting allegations from various
complaints).
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The Government responds that (1) these claims are still barred by the statute
of repose if the underlying conduct occurred more than ten years before a claim was
filed because the statute of repose does not run anew with every occurrence of
continuing acts or omissions that fail to ameliorate an injury and alternatively (2)
these claims would be barred by the discretionary function exception under the
FTCA.
In Hodge v. Harkey,81 the plaintiffs – neighboring landowners – filed suit
against a gas station and the oil company that supplied the station with gas, alleging
that their property had become contaminated from underground storage tanks at the
gas station. The defendants raised the ten-year statute of repose contained in § 152(16). The plaintiffs responded that the defendants were either obligated to or
undertook certain repairs and remediation efforts which tolled the statute of repose.
The court rejected the plaintiffs’ arguments.82 “This Court has previously held that
a statute of repose containing ‘no action’ language barred all claims, including claims
seeking to extend liability for subsequent repairs or remedial measures.”83 Similarly,
81
178 N.C. App. 222, 631 S.E.2d 143 (2006).
82
Id. at 226, 631 S.E.2d at 146.
83
Id. (citing Whitehurst v. Hurst Built, Inc., 156 N.C. App. 650, 577
S.E.2d 168 (2003); Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 515
S.E.2d 445 (1999)).
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in Monson, the court held that “[t]o allow the statute of repose to toll or start running
anew each time a repair is made would subject a defendant to potential open-ended
liability for an indefinite period of time, defeating the very purpose of statutes of
repose. . . .”84 North Carolina holds that “[s]ubstantive rights, such as those created
by the statute of repose are not subject to tolling.”85
These decisions are not surprising. The Supreme Court in Waldburger
addressed the unique nature of statutes of repose. The Court explained that a “statute
of repose . . . puts an outer limit on the right to bring a civil action. That limit is
measured not from the date on which the claim accrues but instead from the date of
the last culpable act or omission of the defendant.”86 Because the repose is not related
to the accrual of the cause of action, it is the “equivalent” to a “cut off” or an
84
133 N.C. App. at 240, 515 S.E.2d at 449; see also Brown v. American
Multimedia, Inc., 170 N.C. App. 697, 614 S.E.2d 606 (Table), 2005 WL 1330919
(N.C. App. June 7, 2005) (applying statute of repose despite plaintiffs’
characterization of claims as “contribution” or “fraudulent failure to reveal material
information” because repose “establishes a fixed limit as to when entities, such as
landowners, can expect to no longer be exposed to lawsuits for damage to property”
and court would not “allow end-run around the statute of repose that would ignore a
clear mandate to the contrary and undermine the chief virtue of the statute, its
certainty”).
85
See Stallings v. Gunter, 99 N.C. App. 710, 716, 394 S.E.2d 212, 216
(1990) (holding that “fraudulent concealment . . . cannot operate to toll the running
of the statute of repose”).
86
CTS Corp. v. Waldburger, ___ U.S. ___, 134 S. Ct. 2175, 2182 (2014).
37
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“absolute bar” that may take place prior to the occurrence of discovery of an injury.87
The Court explained that a “statute of repose is a judgment that defendants should be
free from liability after the legislatively determined period of time, beyond which the
liability will no longer exist and will not be tolled for any reason.”88 Accordingly,
“[s]tatutes of repose . . . generally may not be tolled, even in cases of extraordinary
circumstances beyond a plaintiff’s control.”89
For these reasons, the court finds that any failure to warn claims – including
alleged “renewed” duty to warn of the release of the ATSDR report – do not “toll”
or restart the statute of repose. The court GRANTS the Government’s motion to
dismiss [127]. The court finds that all the Plaintiffs’ claims based on North Carolina
law are barred by the ten-year statute of repose contained in North Carolina General
Statute § 1-52(16). Nonetheless, in the alternative, the court addresses below whether
the discretionary function exception under the Federal Tort Claims Act would also
apply to the Plaintiffs’ North Carolina law claims as well as encompass the newly
alleged claims that might be governed by law other than North Carolina.90
87
Id. at 2183.
88
Id. (quotation and citation omitted).
89
Id.
90
As the court explains below, in their proposed amended complaints,
several Plaintiffs allege claims of wrongful death or loss of consortium based on law
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B.
Motion to Dismiss (Feres)
The Government argues that for those Plaintiffs who were service members at
the time their claims accrued, in addition to the North Carolina statute of repose, the
Feres doctrine also bars any recovery against the United States under the Federal Tort
Claims Act for claims directly related to the contamination of the water supply as
well as for any alleged failure to warn of the contamination. The Plaintiffs respond
that these service members were not always on active duty at Camp Lejeune and the
Feres doctrine should not be applied when there are times of furlough or inactive
service. The Plaintiffs further argue that the court should not consider the failure to
warn claims as one unified claim, but rather the court should find the Feres doctrine
applies only to the times upon which the Government’s obligation to warn arose
while a particular plaintiff was on active duty as a service member.91
other than North Carolina. The Plaintiffs argue that those claims are not governed by
the North Carolina law and the North Carolina statute of repose. The Government
responds that under the Federal Tort Claims Act, those claims would still be governed
by North Carolina law no matter where a wrongful death occurred. See Doc. No.
[170], at 4-7 (citing inter alia Gould Elecs. Inc. v. United States, 220 F.3d 169 (3d
Cir. 2000) and Simon v. United States, 341 F.3d 193, 196 (3d Cir. 2003)). The court
need not tackle this complex choice of law question because it determines below that
these claims are also barred by the discretionary function exception.
91
The court notes that the Plaintiffs make other less than persuasive policy
arguments concerning the application of the Feres doctrine. See Doc. No. [71], at 29
(arguing Government has duty to warn based on “moral imperative”); Doc. No. [176],
at 14 (“this Court – or another – deserves a chance to stand up to defeat the
outrageous doctrine of Feres that has taken our courts so far from the plain language
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It has long been established that the “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.”92 The court considers three factors: “(1) duty status,
(2) location, and (3) activity, to determine whether a service member’s injuries
resulting from government negligence . . . are incident to service [,]” and thus subject
to the doctrine announced in Feres.93 The Eleventh Circuit has held that “the
serviceman’s duty status was the most important criterion in determining whether an
injury was incident to military service.”94 “Where the claimant is injured on base
while on ‘active duty,’ Feres applies virtually as a matter of law.”95
of the statute that Feres pretends to interpret so as to be absurd”).
92
Feres v. United States, 340 U.S. 135, 146 (1950); see also United States
v. Brown, 348 U.S. 110 (1954); Brooks v. United States, 337 U.S. 49 (1949).
93
Whitley v. United States, 170 F.3d 1061, 1070 (11th Cir. 1999).
94
Jimenez v. United States, 158 F.3d 1228, 1229 (11th Cir. 1998) (per
curiam).
95
Starke v. United States, 249 F. App’x 774 (11th Cir. 2007). The parties
expend a great deal of energy on the question of whether the Government’s motion
to dismiss on the basis of the Feres doctrine should be considered under Federal Rule
of Civil Procedure 12(b)(1) or 12(b)(6). See, e.g., Carmichael v. Kellogg, Brown &
Root Servcs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (explaining facial attack
based solely on allegations in complaint is addressed by Rule 12(b)(6) while factual
attack including information outside complaint considered under Rule 12(b)(1)). The
court need not address this issue because it is clear no matter whether considering
material outside the complaints or not, the claims of active service members are
barred by the Feres doctrine.
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Here, there is no dispute that for at least part of their time in service Plaintiff
military service members were on active duty at Camp Lejeune. Thus, it is clear that
the claims of those service members that accrued while they were on active duty are
barred by the Feres doctrine. The Plaintiffs’ alleged exposure to contaminated water
occurred over a period of time. This is not a situation where one incident is the cause
of injury and whether the service member was on active duty or on furlough at the
time of that singular incident can be readily determined.96 There is no way to parcel
the Plaintiffs’ alleged injuries between times of active duty and times of furlough.
Given the policy considerations behind the Feres doctrine, the court rejects the
Plaintiffs’ argument that if the service member was not on active duty for every single
day of his time as a service member then Feres cannot apply.97
96
Cf. Elliott v. United States, 13 F.3d 1555 (11th Cir. 1994) (holding Feres
doctrine did not apply to claim service member seriously injured by carbon monoxide
poisoning while sleeping in base housing while on leave), vacated by 28 F.3d 1076
(11th Cir. 1994), and 37 F.3d 617 (11th Cir. 1994) (district court order affirmed by
operation of law due to equally divided en banc court).
97
See also Gros v. United States, 232 F. App’x 417 (5th Cir. 2007) (per
curiam) (finding same claims of injury due to contamination by former service
member stationed at Camp Lejeune barred by Feres doctrine); Perez v. United States,
Civil Action No. 09-22201 (S.D. Fla. June 14, 2010) (Jordan, J.), Slip op., at 6
(“although it is not exactly clear what precise activity or activities Mr. Perez was
engaged in every single time he drank or used the contaminated water at the Camp,
it is undeniable that he drank and used the water while performing at least some
military activities in 1985 and 1986”), attached at Doc. No. [61], Ex. F.
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As to the second factor, these service members were clearly located on the
Camp Lejeune base which points to the application of the Feres doctrine. Finally,
while the Plaintiffs were not always engaged in a “military” activity, Feres, itself,
makes clear that sleeping while stationed on active duty at a military base is an
activity “incident to service” and therefore satisfies the third factor.98 Accordingly,
the court finds that the claims raised by the Plaintiffs when they were service
members are barred by the Feres doctrine.
More complicated are the “failure to warn” claims of service members arising
after their discharge from service.99 In Cole v. United States,100 the court considered
the claims of the representatives of a deceased service member who alleged that the
98
See Feres, 340 U.S. at 135 (holding service member acting “incident to
service” when he was killed in fire while off-duty and sleeping in his barracks).
99
Given the procedural posture of this litigation, the court assumes for the
purposes of discussion that the Plaintiffs are able to state a claim for a “new duty to
warn” on the part of the Government which arose at least for some service member
Plaintiffs after they were discharged. The court, however, is mindful of the
comments by Judge Jordan while he considered this claim in Perez v. United States,
before that case was transferred to the instant MDL. See Civil Action No. 09-22201
(S.D. Fla. June 14, 2010), Slip op., at 5 n.2 (“Given the government’s alleged
long-standing knowledge that TCE is hazardous to human health, it may be very
difficult for the plaintiffs to prove that a new duty to warn arose from the alleged new
knowledge about TCE’s carcinogenic qualities after Mr. Perez’s discharge in 1987
and before the government notified Mr. Perez of the water contamination in 2008.
But that is not the issue at this early stage.”), attached at Doc. No. [61], Ex. F.
100
755 F.2d 873 (11th Cir. 1985).
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Government should have known of the dangers of radiation exposure experienced on
a ship used for atomic bomb testing but failed to warn the service member. In
particular, the plaintiffs claimed that after the service member was discharged from
active duty, the Government’s knowledge of the dangers “expanded” to the point
where a “new duty to warn” was triggered.101
The court recognized that the courts of appeal “universally applied the Feres
doctrine to bar such suits in which the duty to warn originated when the injured
serviceman was in the armed forces and merely continued after discharge.”102 But the
Cole court found that the plaintiffs’ allegations of post-discharge conduct by the
Government would take the claim outside of the Feres bar. The Court stated:
Our review of the law in this area suggests that in a case alleging a
failure by the government to warn of in-service active-duty exposure to
hazardous substances, the crucial inquiry is whether the purported
conduct of the government giving rise to the plaintiff’s cause of action
occurred while the injured party was still a member of the armed forces.
Under this standard, the claim in the plaintiffs’ proposed amendment
would not be barred by the Feres doctrine. The relevant ‘injury’ here is
the aggravation or perpetuation of Cole’s radiation-induced condition
due to the government’s failure to discharge its new duty to warn. It is
urged that the conduct by the United States causing this injury occurred
entirely after he left the service.103
101
Id. at 875.
102
Id. at 876 (collecting cases); see also Stanley v. Central Intelligence
Agency, 639 F.2d 1146 (5th Cir. Unit B 1981).
103
Id. at 877 (footnotes and citations omitted).
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Cole contains an extensive policy discussion of why the court found that the postdischarge allegations did not implicate the policy behind Feres.104
The court, however, need not resolve whether the “post-discharge” failure to
warn claims would survive Feres because the Government argues in the alternative
that even if they do under Cole, the Plaintiffs’ failure to warn claims are barred by the
discretionary function doctrine. The court addresses this argument below. For the
foregoing reasons, the court GRANTS the Government’s motion to dismiss on the
basis of the Feres doctrine [61]; DENIES AS MOOT the Plaintiffs’ motion for oral
argument [72]; DENIES AS MOOT the Plaintiffs’ motion for extension of time to
complete discovery and to stay [83]; and GRANTS the Government’s motion to
dismiss as to the Feres doctrine [127].
C.
Motion to Dismiss (Discretionary Function Exception)105
104
Id. at 877-80; see also Maas v. United States, 94 F.3d 291, 295-98 (7th
Cir. 1996) (permitting post-discharge failure to warn claims as outside Feres
doctrine).
105
The court recognizes that one of the cases originally consolidated into
the MDL was further along in the pipeline than the others. See Laura Jones v. United
States, Civil Action No. 7:09-CV-106-BO (E.D.N.C.). In Jones, the Honorable
Terrence Boyle, in the United States District Court for the Eastern District of North
Carolina, held that the statute of repose did not apply to Jones’ claims. See Jones v.
United States, 751 F. Supp. 2d 835 (E.D.N.C. 2010). Shortly after the MDL was
consolidated in the Northern District of Georgia, the court considered briefing from
the parties as to whether the Jones decision had any binding precedential effect on the
court’s analysis going forward. In the interim, however, the court dismissed Plaintiff
Jones on the basis of judicial estoppel. Thus, Jones, was no longer part of the MDL
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The Plaintiffs raise a variety of negligence claims against the Government: (1)
and the court did not need to reach any conclusions as to the precedential effect of
Judge Boyle’s order.
In a brief discussion in a separate order, Judge Boyle concluded that certain
Navy regulations and base orders gave mandatory direction to the Government with
respect to the water supply system at Camp Lejeune and therefore the discretionary
function exception did not apply. See Jones v. United States, 691 F. Supp. 2d 639
(E.D.N.C. 2010). The Plaintiffs again argue in their response to the Defendant’s
motion to dismiss on the basis of the discretionary function exception that Judge
Boyle’s order in Jones should be “law of the case” in this MDL despite the fact that
Jones was dismissed.
The Plaintiffs rely on two cases for their “law of the case” argument. See In
re Ford Motor Co., 591 F.3d 406 (5th Cir. 2009) and In re Pharmacy Benefit
Managers Antitrust Litig., 582 F.3d 432 (3d Cir. 2009). But Ford discusses the
obligations of the “transferor” court in receiving the orders of the “transferee” court
in an MDL. Although perhaps confusing, the “transferee” court in these cases is the
court in front of which the MDL was consolidated. The “transferor” court is the court
in which the individual case originated. Of course, at the conclusion of the pretrial
MDL proceedings, the MDL “transferee” court returns the individual case to the
originating “transferor” court. It is this “remand” after completion of the pretrial
matters that occupies the analysis in Ford. That is not the situation before this MDL
court in determining whether Judge Boyle’s orders are “law of the case.”
Even Pharmacy Benefit Managers – which discusses the deference the MDL
court should give to an order already entered in a transferred action – does not
mandate that the MDL court accept all previous rulings made in a case. Pharmacy
Benefit Managers recognizes that the “law of the case” doctrine is a discretionary
doctrine. The MDL “transferee” court may take into account the degree to which a
“transferor” court may have analyzed a particular legal issue. See In re Bank of
America Wage & Hour Emp’t Litig., MDL No. 2138, 2010 WL 4180530 (D. Kan.
Oct. 20, 2010) (declining to consider order of transferor court as “law of the case”
where basis of order “unknown”).
In any event, as it found above, the court need not reach any conclusion about
the “law of the case” because the Jones case has been dismissed. But the court notes
that the discretionary function exception is a very significant feature of this litigation.
It is difficult for the court to perceive that the decision from an individual case would
bind the remaining MDL cases before any opportunity for all parties to conduct
discovery and engage in briefing and argument on the issue.
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disposal of pollutants and contaminants at Camp Lejeune, (2) failure to protect the
Camp Lejeune water supply from contamination, (3) failure to investigate and
remediate contamination, and (4) failure to adequately warn inhabitants of exposure
to contaminated water. The Government contends that even if these claims were not
barred by the statute of repose, the Plaintiffs’ negligence and “failure to warn” claims
are also barred by the “discretionary function” exception to the Federal Tort Claims
Act. The Plaintiffs respond that the discretionary function exception is not applicable
because the regulations issued by the Navy Bureau of Medicine and Surgery
(“BUMEDs”) as well as other regulations provided mandatory duties and specific
courses of action with respect to safe water supply such that the Government’s
obligations in this area were ministerial and not discretionary. The Plaintiffs further
argue that the Government made the choice to provide its own water supply at Camp
Lejeune rather than use the local municipality’s water, and thus, these actions become
akin to business or routine maintenance of property.
As the court explains above, there are exceptions to the Government’s liability
under the FTCA. One of those is the “discretionary function” exception contained
in 28 U.S.C. § 2680(a).106 “These exceptions must be strictly construed in favor of
the United States, and when an exception applies to neutralize what would otherwise
106
See, e.g., Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015).
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be a waiver of immunity, a court will lack subject matter jurisdiction over the
action.”107
Section 2680(a) exempts from FTCA liability:
(a) Any Claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or 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 the discretion involved be
abused.108
“In short, the discretionary function exception serves to preserve sovereign immunity
for any claim that is based on a federal agency or employee’s performance or
nonperformance of a discretionary task, even if, in so acting, the agency employee
may have abused his discretion.”109
“In guiding the courts’ application of the discretionary function exception, the
Supreme Court has formulated a two-part test. First, the conduct that forms the basis
of the suit must involve an element of judgment or choice by the employee.”110 “In
determining whether judgment or choice is present in the particular conduct at issue,
107
Id. (quotation and citation omitted).
108
Id.
109
Id. at 1329.
110
Id. (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
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the inquiry focuses on whether the controlling statute or regulation mandates that a
government agent perform his or her function in a specific manner.”111 “If a federal
statute, regulation, or policy specifically prescribes a course of action for an
employee to follow, the Government will have failed to show that the action at issue
allowed for the employee’s exercise of judgment or choice because, in that case, the
employee had no rightful option but to adhere to the directive.”112 “Conversely, unless
a federal statute, regulation, or policy specifically prescribes a course of action
embodying a fixed or readily ascertainable standard, it will be presumed that the
particular act involved an element of judgment or choice.”113
“If the Government has met this first element of the test for applying the
exception, then the second part of the test requires the court to determine whether that
judgment is of the kind that the discretionary function exception was designed to
shield.”114 “A particular decision will be of the kind protected by the exception if it
is the type of decision that one would expect to be inherently grounded in
considerations of policy.”115 “Indeed, when a government agent is permitted to
111
Id. (quotations and citations omitted).
112
Id. at 1329-30 (quotation and citation omitted).
113
Id. at 1330 (quotation and citations omitted).
114
Id. (quotation and citation omitted).
115
Id.
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exercise discretion in making a particular decision – whether that permission is
express or implied – it must be presumed that the agent’s acts are grounded in policy
when exercising that discretion.”116 “Finally, in examining whether an employee’s
discretion is of the type grounded in public policy, one uses an objective test, and the
employee’s subjective intent is irrelevant.”117
The court finds here that its ruling on the discretionary function exception is
a matter properly considered under Rule 12(b)(1) subject-matter jurisdiction.118
Because the court permitted a period of discovery on the discretionary function
exception, the court finds that this is not simply a facial challenge to which the court
would need to assume the truth of the allegations in the complaints and proposed
amended complaints, rather the court views this as a factual challenge pursuant to
which the Plaintiffs bear the burden of proof to show that a waiver of sovereign
116
Id. (quotation and citation omitted).
117
Id.; see also United States v. Gaubert, 499 U.S. 315, 325 (1991) (focus
of inquiry is “not on the agent’s subjective intent . . ., but on the nature of the actions
taken and on whether they are susceptible to policy analysis”).
118
See Zelaya, 781 F.3d at 1338-39 (detailed discussion on jurisprudential
considerations of Rule 12(b)(6) or Rule 12(b)(1) dismissal). Further, for the same
reasons as addressed in Zelaya, the court finds the result would be the same whether
the court considered the arguments pursuant to Rule 12(b)(1) or Rule 12(b)(6). Id.
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immunity exists.119 Thus, the court may consider matters outside of the pleadings to
determine whether it has subject-matter jurisdiction.120
Based on the arguments presented by the Plaintiffs, the court finds there is
some confusion in the briefing in distinguishing between the issue of negligence and
the issue of whether a specific federal statute or regulation provided guidance such
that any action taken or not taken was not a matter of discretion, but rather was
mandatory. For this reason, the court finds it useful to give more measured
consideration to Autery v. United States.121 In Autery, the plaintiffs filed suit against
the United States for death and injuries sustained by passengers in an automobile
when two black locust trees fell on their car in the Great Smoky Mountain National
Park. Over a decade before the accident, the National Park Service had issued a
“directive” which stated:
119
See, e.g., Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked
Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011); OSI, Inc. v. United States, 285 F.3d
947, 951 (11th Cir. 2002). Citing Whisnant v. United States, 400 F.3d 1177, 1181
(9th Cir. 2005), the Plaintiffs argue that the Government bears the burden of
demonstrating the applicability of the discretionary function exception. The Eleventh
Circuit does not apply the burden in the same manner as the Ninth Circuit. See also
S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 333 (3d Cir. 2012) (holding
Government bears burden of proving discretionary function exception).
120
See, e.g., McMaster v. United States, 177 F.3d 936, 940 (11th Cir.
1999).
121
992 F.2d 1523 (11th Cir. 1993).
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Protection of the visitor, and park and concessioner employees, from
violations of laws and regulations and from hazards inherent in the park
environment, is a prime responsibility of the National Park Service. The
saving and safeguarding of human life takes precedence over all other
park management activities, whether the life is of the visitor,
concessioner, or park employee. . . .122
Pursuant to that directive, the unwritten policy at the time of the accident was to
“make every reasonable effort within the constraints of budget, manpower, and
equipment available to detect, document, remove, and prevent tree hazards.”123
Under this policy, rangers would visually inspect trees and report back any known
hazardous trees for removal.124 Natural resources specialists at the Park were also
aware of the special danger facing black locust trees due to bore infestation and the
accompanying recommendation to remove such trees.125
discuss the information about black locust trees.126
122
Id. at 1525.
123
Id.
124
Id.
125
Id.
126
Id.
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Park personnel met to
In carefully considering both United States v. Gaubert,127 and Berkovitz v.
United States,128 the Autery court first analyzed what policy issue was before it. The
court stated:
The district court’s inquiry, on the other hand, by asking whether the
park officials had discretion to remove “hazardous” trees, begs the
question. The tree inspection program was designed to identify which
trees were hazardous. Whether park personnel had discretion in
executing that plan is the relevant issue. The district court’s analysis
appears to collapse the question of whether the Park Service was
negligent into the discretionary function inquiry. That is, after finding
that the Park Service had knowledge of the danger of black locust trees,
the district court imposed a “reasonableness” requirement on the
government’s conduct.129
The court found, instead, that it “is the governing administrative policy, not the Park
Service’s knowledge of danger, however, that determines whether certain conduct is
mandatory for purposes of the discretionary function exception. The FTCA expressly
provides that the exception applies to policy judgments, even to those constituting
abuse of discretion.”130 The court further stated “the relevant inquiry here is whether
controlling statutes, regulations and administrative policies mandated that the Park
Service inspect for hazardous trees in a specific manner. If not, then the Park
127
499 U.S. 315 (1991).
128
486 U.S. 531 (1988).
129
992 F.2d at 1528 (footnote omitted).
130
Id. (quotation and citation omitted).
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officials’ decision to employ a particular inspection procedure—and its execution of
that plan—is protected by the discretionary function exception.”131
The Autery court found that the Park Service had granted rangers discretion in
inspecting trees and in determining which trees should be removed. The court
distinguished Phillips v. United States,132 noting that the tree inspection plan did not
“compel park employees to inspect certain trees on certain days or remove a
particular number of trees per week.”133 Ultimately, the Autery court found that there
was no specific mandatory policy that removed discretion; and that the decisions of
the Park rangers were grounded in social, economic, and public policy such that the
discretionary function exception applied.134
Similarly, here, the Plaintiffs argue that the Government failed in following the
regulation that the water supply at Camp Lejeune should not be contaminated. But
whether contamination occurred due to negligence is not the relevant inquiry; rather
the question is whether any federal statute or regulation presented sufficiently specific
instructions to base personnel on how to provide for a safe water supply.
131
Id.
132
956 F.2d 1071 (11th Cir. 1992).
133
992 F.2d at 1529.
134
Id. at 1530-31.
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1.
Federal Statute or Regulation
The first step on the discretionary function analysis is whether the conduct of
the officials at Camp Lejeune was controlled by a statute or regulation that mandated
the government agent perform in a specific manner. Over the course of the litigation,
the Plaintiffs have pointed to several different federal statutes or regulations they
believe set forth mandatory duties on the part of the Government.135 Although there
is no master complaint at this point in the litigation, the court will consider all
arguments raised by the Plaintiffs in their briefing and in their proposed amended
complaints. In their first response to the Government’s motion to dismiss on the basis
of the discretionary function exception, the Plaintiffs argued that mandatory
obligations were set forth in the 1974 Federal Safe Drinking Water Act and its 1996
amendments.136
The Safe Drinking Water Act of 1974 authorized the Environmental Protection
Agency to regulate drinking water standards for public water supplies.137 The EPA
135
The Plaintiffs sporadically make reference to the fact that they requested
and did not receive certain items from the Government in discovery. The court is not
persuaded by these comments as the Plaintiffs did not pursue any recourse with the
court during the period of discovery on the Feres doctrine and the discretionary
function exception.
136
See Doc. No. [136], Plaintiff Bryant’s Proposed Amended Complaint,
¶¶ 106-07.
137
See 42 U.S.C. §§ 300f et seq.
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established a priority of substances it would begin to regulate and it began to set
Maximum Contaminant Levels as enforceable standards.138 The initial list, effective
in 1977, contained only ten substances, none of which were the relevant contaminants
to Camp Lejeune.139 Under a general category of “chlorinated hydrocarbons,” the
EPA regulated four pesticides – endrin, lindane, methoxychlor, and toxaphene.140
In the early 1980s, the Environmental Protection Agency announced that it
would begin the process of developing regulations for volatile organic chemicals such
as those at issue here.141 The chemicals that the Plaintiffs specify in their complaints
are benzene, trichloroethylene (TCE), tetrachloroethylene (PCE), dichloroethene
(DCE), and vinyl chloride. The Government’s expert, Dr. Davis Ford, testified that
the DCE and vinyl chloride detected in the ground at Camp Lejeune are “daughter
products” of PCE and TCE and likely resulted from the use and disposal of TCE and
PCE at Camp Lejeune.142 He further noted that benzene is generally present in the
138
See 48 Fed. Reg. 45502 (Oct. 5, 1983).
139
See Doc. No. [79], Ex. 36.
140
See Doc. No. [62], Ex. 14 (40 Fed. Reg. 59570 (Dec. 24, 1975)).
141
Id.
142
See Doc. No. [62], Ex. 9 at 17.
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environment, usually as a result of industrial activities, storage tanks, and vehicle
maintenance.143
In 1984, the EPA issued a proposal for “recommended” maximum
contamination levels for TCE, PCE, DCE, and vinyl chloride.144 It was not until 1989
that the EPA issued final regulations for enforceable maximum contamination levels
for benzene, TCE, and vinyl chloride.145 Final levels for DCE and PCE were not
effective until 1992.146 Likewise, and significantly, the BUMEDs did not specifically
list benzene, vinyl chloride, TCE, and DCE until the 1993 update to BUMED
6240.10 after the Camp Lejeune contaminated wells were closed.147
The Plaintiffs also refer to Base Order 5100.13B governing the Safe Disposal
of Contaminants or Hazardous Waste (including organic solvents) which provides
that commanders and officers will “cause periodic inspections to be made of
143
Id. at 12-13.
144
Id., Ex. 37.
145
See Doc. No. [62], Ex. 10.
146
Id., Exs. 9 and 11.
147
Id., Exs. 18 (noting that these substances only recently had “maximum
contamination levels” set by EPA) and 19 (adding tetrachloroethylene (PCE) to
BUMED instruction based on newly enacted EPA regulation).
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contaminants and hazardous materials in stock to determine serviceability.”148 The
Base Order also states that the Base Safety Manager “will direct safe disposition of
subject waste not salable or usable.”149
The Plaintiffs rely most extensively150 on the following provisions of the
BUMEDs:
6a.
The water supply should be obtained from the most desirable
source which is feasible, and effort should be made to control
pollution of the source. If the source is not adequately protected
by natural means, the supply shall be adequately protected by
treatment.151
The BUMED further specified that “adequate protection by treatment means any one
or any combination of the controlled processes of coagulation, sedimentation,
148
See Base Order, § 4a. The Base Order is attached as Exhibit 9 to the
Plaintiffs’ response to the Defendant’s motion to dismiss on the basis of the
discretionary function exception. See Doc. No. [70].
149
Id. at § 4a(3).
150
The Plaintiffs specifically disavow any reliance on the Clean Water Act,
the Resource Conservation Recovery Act (“RCRA”) or Suggested No Adverse
Response Levels (“SNARLS”). See Doc. No. [70], at 6 n.4. To the extent that any
individual Plaintiff would rely on the SNARLS, see Doc. No. [126], ¶¶ 52-54, as the
name indicates, such levels were only “suggested” and therefore could not form the
basis of any specific mandatory direction to base officials.
151
See BUMED 6240.3B (effective September 30, 1963); BUMED
6240.3C (effective August 25, 1972). The 1963 BUMED is attached as Exhibit 2 to
the Plaintiffs’ response to the Defendant’s motion to dismiss on the basis of the
discretionary function exception. See Doc. No. [70]. The 1972 BUMED is attached
as Exhibit 6.
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absorption, filtration, disinfection or other processes which produce a water
consistently meeting the requirements of these standards.”152
It continued:
6b.
Frequent sanitary surveys shall be made of the water supply
system to locate and identify health hazards which might exist in
the system.153
A “health hazard” is defined as including “a structural defect in the water supply
system, whether of location, design, or construction which may regularly or
occasionally prevent satisfactory purification of the water supply or cause it to be
polluted from extraneous sources.”154
Moreover, section 7 of the BUMED discussed the standards or limits generally
contained in the 1962 Public Health Service Drinking Water Standards.
7(c). Chemical characteristics: limits. Drinking water shall not contain
impurities in concentrations which may be hazardous to the health of the
consumers. It should not be excessively corrosive to the water supply
system. Substances used in its treatment shall not remain in the water
in concentration greater than required by good practice. Substances
which may have deleterious physiological effect, 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.155
152
Id., § 5b.
153
Id., § 6b.
154
Id., § 5d.
155
Id., § 7c.
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The 1972 BUMED specifies that the “presence of the following substances in excess
of the concentrations listed shall constitute grounds for rejection of the supply [listing
values for specific substances].” Under “pesticides” one of those substances was
listed as “chlorinated hydrocarbons.”156
The Plaintiffs then allege that the Government was “fraudulent” and “willfully
and wantonly negligent in failing to follow [the] mandate” of the BUMEDs and
“failed to exercise due care” by causing or allowing pollutants and contaminants such
as “trichloroethylene (TCE), as well as PCE and refined petroleum produces, such as
benzene, toluene, ethylbenzene, and xylenes (BTEX)” to leak and contaminate the
base water supply.157
As to the relevance of the BUMEDs, the court finds OSI, Inc. v. United
States,158 to be most directly applicable to this case. In OSI, a neighboring property
owner sued the Government for damages allegedly resulting from contamination
caused by the dumping of hazardous substances at Maxwell Air Force base. The
plaintiff argued that the decisions made by the Air Force base regarding the disposal
of hazardous substances were not subject to the discretionary function exception
156
See BUMED 6240.3C, § 7(3)d(2).
157
See Wright Proposed Am. Cmplt., ¶ 67; Bryant Proposed Am. Cmplt.,
¶¶ 262-64.
158
285 F.3d 947 (11th Cir. 2002).
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because certain manuals that governed landfill disposal decisions created mandatory
obligations on the part of the Government.159
The court found that the manual in question made it an “objective” to protect
water sources in the disposal of hazardous materials.160 Ultimately, the OSI court
held “that an agency manual which provides only objectives and principles for a
government agent to follow does not create a mandatory directive which overcomes
the discretionary function exception to the FTCA.”161 The court also found that the
“nature of the military’s function requires that it be free to weigh environmental
policies against security and military concerns. We hold that the decisions at issue
here reflect the kind of judgment that the discretionary function exception is designed
to shield.”162
The Plaintiffs are correct that the BUMEDs use mandatory language with
respect to the need to deliver clean drinking water. Significantly, however, the
159
Id. at 951.
160
Id. (citing to facts as established in Aragon v. United States, 146 F.3d
819, 826 (10th Cir. 1998) which considered same regulations as cited by plaintiff in
OSI).
161
Id. at 952.
162
Id. at 953; see also Slappey v. U.S. Army Corps of Eng’rs, 571 F. App’x
855 (11th Cir. 2014); Snyder v. United States, 504 F. Supp. 2d 136 (S.D. Miss. 2007),
aff’d, 296 F. App’x 399 (5th Cir. 2008).
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manner in which this objective was to be achieved was left to the agency. For
example, as the Plaintiffs themselves point out, the “grounds for rejection” language
is a term of art from the 1962 Public Health Service Drinking Water Standards.163
But those standards contain discretion because the “grounds for rejection” limits are
“limits, which should not be exceeded when more suitable water supplies can be
made available” and the limits are “based on factors which render a supply less
desirable for use.”164
The question is not whether Camp Lejeune was under a directive to provide a
clean water supply; the question is whether those responsible for the required clean
water supply had any discretion in the manner in which that supply was to be
achieved.165 The fact that BUMEDs were orders that had to be followed by the
Marine Corps does not mean that the BUMEDs contained specific mandatory
instructions for how to achieve a clean water supply that removed any discretion from
163
See Doc. No. [70], Ex. 5.
164
Id. at 22.
165
It is for this reason that the Plaintiffs’ emphasis on the testimony of the
Defendant’s Rule 30(b)(6) witness, Dr. Davis Ford, is inapposite. See Doc. No. [70],
at 26-31. Dr. Ford clearly testified that BUMEDs were public health directives that
could not be disregarded and the BUMEDs contained certain minimum requirements
for water quality. But this testimony does not answer the question in the first step of
the discretionary function analysis – whether there was a specific mandatory policy
that had to be followed on how to assure water quality.
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the part of those responsible for the water supply at Camp Lejeune. There simply is
no question here but that there were a myriad of discretionary decisions that had to
be made about how to provide clean water at Camp Lejeune.166
The Base Order also does not specify any particular contaminants and gives
base officials discretion to determine whether an item is salable or serviceable and
where it should be disposed. There are no mandatory or specific methods of disposal
required in the Base Order. Similarly, in Autery, the mandatory directive was that
“saving and safeguarding of human life takes precedence over all other park
management activities,” but the manner in which that prime responsibility was
achieved was left to the discretion of the Park Service employees. In Rodriguez v.
166
Finally, the Plaintiffs point to the provision of the 1972 BUMED which
stated that “[f]requent sanitary surveys shall be made of the water supply system” and
argue – without citation – that no such surveys were ever conducted. The
Government, however, proffered testimony from Julian Wooten, Director of Camp
Lejeune’s Office of Natural Resources and Environmental Affairs in the 1980s that
he had worked in a “potable water” laboratory at Camp Lejeune and had done a
variety of testing on substances such as bacteria, chloroform bacteria, possibly
salinity, and chlorine and fluoride. See Doc. No. [79], Ex. 39, Wooten Depo., at
1-12, 22-27. The Government has also produced records of water supply evaluations
conducted from the late 1950s to the 1970s, including the first six “chlorinated
hydrocarbon” pesticides listed in the initial implementation of the Safe Drinking
Water Act regulations. See id., Exs. 40-42. These reports are quite lengthy and
detailed. To the extent they address the complexity of providing an adequate water
supply, they are more evidence of the fact that decisions with regard to the water
supply required a great deal of discretion and the balancing of logistics and
capabilities.
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United States,167 the regulations governing the provision of exercise equipment to
detainees at an immigration holding facility provided that the facility had to offer
“safe” conditions for the use of the equipment, but it did not “point to the manner”
in which the facility was to provide those conditions.168 Thus, the court determined
that there was discretion and choice in the manner in which the facility set up the
exercise equipment.169
The Plaintiffs’ own industrial hygiene expert, Andrew Havics, likewise
testified that the Safe Drinking Water Act began to set national standards through the
issuance of recommended maximum contamination levels and then enforceable
maximum contamination levels.170 But levels for benzene, TCE, and vinyl chloride
were not proposed until 1987, and PCBs not proposed until 1991.171
The 1972 BUMED referenced by the Plaintiffs only regulates a category of
“chlorinated hydrocarbons” as a part of the “pesticides” category. The 1972 BUMED
was based on the 1962 Public Health Service Drinking Water Standards which did
not regulate any of the “volatile organic solvents” at issue here. As described above,
167
415 F. App’x 143 (11th Cir. 2011).
168
Id. at 146.
169
Id.
170
See Doc. No. [71], Havics Aff., ¶ 23.
171
Id., ¶ 25.
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the EPA only regulated “chlorinated hydrocarbons” as part of pesticides. The
Government’s experts, Dr. Davis Ford (environmental engineer) and Dr. Remy
Hennet (geochemist) both testified that the types of chemicals that caused the relevant
contamination here were not regulated prior to 1985 when the Camp Lejeune wells
closed. Dr. Hennet provided testimony about the use of the term “chlorinated
hydrocarbon” in the BUMEDs. He testified that the term “chlorinated hydrocarbon”
referred to a class of “pesticides, herbicides, and fungicides” and not the volatile
organic compounds such as TCE and PCE.172 The Plaintiffs express disdain for the
Government’s distinction between “pesticides” and “organic solvents” because both
are “poisons” and the source does not matter to the “health and welfare of our
Marines and their families.”173 Of course, this is not the applicable inquiry. The
question is whether there were specific mandatory regulations concerning certain
substances that the Plaintiffs allege were present in the Camp Lejeune water supply.
When viewed through this lens, whether those substances are characterized as
“pesticides” or “organic solvents” is very relevant to the inquiry of whether certain
regulations mandated limits as to contaminants. The Plaintiffs’ expert agreed on the
characterization of these chemicals.
172
See Doc. No. [62], Ex. 20, ¶ 5 (Hennet Decl.).
173
See Doc. No. [70], at 31-32.
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The Plaintiffs offered the testimony of Dr. Benjamin Ross and Steven Amter
that it was generally known that organic solvents have “carcinogenic properties” as
early as the late 1940s. But there is no information in the record which would support
an argument that there was any specific mandatory regulation from any source
governing contamination by volatile organic substances, benzene, TCE, DCE, PCE,
or vinyl chloride. Nor, for that matter, is the Government’s knowledge as to the
danger of any particular relevance. As the court noted in Autery, Park Service
personnel certainly had knowledge that the black locust trees were dangerous, but
they also had the discretion to determine a course of action to deal with that danger.
Therefore, the court finds that the Plaintiffs have not established the existence of any
mandatory regulation for the relevant contaminant volatile organic compounds until
after the wells at Camp Lejeune were closed.
The source of the Plaintiffs’ contention that the Government had an obligation
to “warn” is not clear to the court. In response to the Government’s motion to
dismiss on the discretionary function exception, the Plaintiffs argue that a new duty
to warn arose from the Safe Water Drinking Act of 1974 and its amendments
addressing levels of exposure in 1987 and 1991. But those pieces of legislation
addressed levels of contaminants and did not give any mandatory and specific
instruction on the duty to warn individuals no longer served by the drinking water
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supply. Accordingly, the court finds that the Plaintiffs have not pointed the court to
any mandatory non-discretionary federal regulations that would have directed the
Government to warn any former service members. The first specific notification
provisions regarding Camp Lejeune appeared in legislation in 2006 and 2008.174
In 2006, Congress mandated that the Government “take appropriate action” to
locate and inform former military personnel and residents of the contamination of the
water supply after the completion of the study by the Agency for Toxic Substances
and Disease Registry (“ATSDR”) on the relationship of childhood cancers and birth
defects to the contaminated drinking water at Camp Lejeune.175 The 2008 Act
requires the Secretary of the Navy to “make reasonable efforts to identify and notify
directly individuals who were served by the Tarawa Terrace Water Distribution
System.”176 The court finds that neither of these statutes provides specific nor
mandatory procedures on notification and such decisions were still within the
discretion of the Government.
174
See Pub. L. No. 109–364, § 318, 120 Stat. 2083, 2143-2144 (Oct. 17,
2006) and Pub. L. No. 110-181, § 315, 122 Stat. 3, 56-57 (Jan. 28, 2008).
175
See Pub. L. No. 109–364, § 318, 120 Stat. 2083, 2143-2144 (Oct. 17,
2006).
176
See Pub. L. No. 110-181, § 318.
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In her proposed amended complaint, Plaintiff Wright also lists several
occasions upon which she contends a duty to warn arose. The Plaintiffs allege that on
October 21, 1980, data was collected from various water sources at Hadnot Point on
an HHTM Surveillance Form.177 The form noted that the water was “highly
contaminated with low molecular weight halogenated hydrocarbons.”178 A second
data collection form taken on December 18, 1980 reports “heavy organic
interference” with the detection of certain chemical compounds and recommends
testing by a different method.179 On February 26, 1981, the report indicated that
“water highly contaminated with other chlorinated hydrocarbons (solvents).”180 An
August 1982 report of Grainger Laboratories found the presence of chlorinated
hydrocarbons which would impact health and therefore were brought to the attention
of Camp Lejeune officials.181 Exhibit H also contains a series of memos which
documents additional testing of samples and analysis performed by Grainger
Laboratories with comments from base scientific personnel.182 The memos confirm
177
See Doc. No. [130], Ex. E.
178
Id.
179
Id., Ex. F.
180
Id., Ex. G.
181
Id., Ex. H.
182
Id.
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that trichloroethylene (TCE) and tetrachloroethylene (PCE) were not regulated
substances although SNARLS existed for some of the substances.183 The memos also
generally reflect the beginning efforts to identify the source of the contamination.184
But nothing in these memos triggered a duty to warn or specified any manner in
which to notify residents.
Finally, Plaintiff Wright identifies as an individual act of negligence an April
1982 memo to residents of Tarawa Terrace which noted that the base was having
“serious problems” providing sufficient water supply to residents because some wells
had been taken out of service due to “trace” amounts of contaminants.185
On September 1, 2008, as part of the effort to comply with congressional
mandates that the Department of the Navy make efforts to reach all residents of Camp
Lejeune, the Navy worked with the Internal Revenue Service to send notices to
residents for whom the Navy did not have a current address.186 The notice indicated
it related to water quality at Camp Lejeune and encouraged individuals to sign up for
183
Id.
184
Id.
185
Id., Ex. K; see also Doc. No. [70], at 44-45 (citing at Ex. 15 this 1985
notice to residents of Tarawa Terrace).
186
See Doc. No. [164], Ex. F.
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a notification registry.187 It indicated that unregulated chemicals had been in the
water in the early 1980s and the Navy was attempting to assess the health impact.188
Again, the language of the statute was not specific in the manner in which the
Department of Navy should go about making these contacts or the language that
should be used in the notifications. For all of these reasons, the court finds there was
no federal statute or regulation that mandated a government agent perform his
function in a specified manner.
2.
Implications for Policy Concerns
The second step in the discretionary function analysis is whether the judgment
that must be exercised by the Government agents is the kind the discretionary
function doctrine was intended to shield. The Government points out that the policy
considerations in this matter included: providing adequate water supply to the base,
maintaining military readiness, prioritizing military obligations with limited financial
resources, addressing drinking water standards for those substances actually
regulated, and working within the greater Department of Defense Installation
Restoration Program (“IRP”) and the Navy’s Assessment and Control of Installation
Pollutants (“NACIP”). These two programs encompass the Department of Defense’s
187
Id.
188
Id.
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consolidated effort to address contaminated military sites throughout the United
States through the establishment of priority listings similar to the EPA Superfund site.
As OSI and Aragon make clear, the direction of resources on a military base
during the Cold War is a classic illustration of the kind of balancing of national
security and economic policies that should be protected by the discretionary function
exception. The court is not persuaded otherwise by the authority cited by the
Plaintiffs. In Gibson v. United States,189 the plaintiff sued the Department of Navy
when he slipped and fell while inspecting FEMA mobile homes to be sold at an
auction. The court likened the Government’s role here as the same as any other
“business.” But the provision of clean water is a classic government function and not
that of a “business.” Furthermore, the disposal of hazardous material is not the type
of “routine property maintenance” contemplated in Gibson. Nor is it the type of
problem that can be resolved with “garden-variety remedial steps” as contemplated
in S.R.P. ex rel. Abunabba v. United States.190
189
809 F.3d 807 (5th Cir. 2016).
190
676 F.3d 329, 338 (3d Cir. 2012). The court might further note that the
Abunabba court actually held that the discretionary function exception applied where
the plaintiff was bitten by a barracuda while playing near the shore of a national
monument and had alleged that the Government should have posted additional
warning signs. Id. at 338.
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Finally, the Plaintiffs argue that the Government should not be permitted to
utilize the discretionary function exception because they have alleged that the
negligent conduct was marked by individual carelessness or laziness.191 It does not
appear that the Eleventh Circuit has recognized this carve out to the discretionary
function exception.192 Moreover, nothing in the allegations made by the Plaintiffs can
be characterized by individual carelessness or laziness. As the court explained above,
there is no evidence that the Government refused to conduct water quality surveys.
All of the cases cited by the Plaintiffs involved single instances of negligence or
failure to conduct some kind of inspection. The evidence in the record shows that the
implications of dumping, leaking, and contamination were not fully understood until
the mid-to-late 1980s, when the Government began regulating these substances. A
myriad of policy considerations went into assuring the water supply at Camp Lejeune
and later addressing the contamination of the water supply.
191
See Doc. No. [141], at 21.
192
See Rich v. United States, 811 F.3d 140, 147 (5th Cir. 2015) (“The
Second Circuit has acknowledged that discretionary conduct cannot be grounded in
a policy decision when that conduct is marked by individual carelessness or laziness.
See Coulthurst v. United States, 214 F.3d 106 (2d Cir. 2000) (concluding that the
discretionary function exception would not apply to a prison official’s inspection of
faulty weight equipment that caused plaintiff’s injuries if that inspection was
performed in a ‘carelessly inattentive’ manner).”).
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Furthermore, it is clear that decisions whether to warn are full of implications
for policy concerns. In Sanchez ex rel. D.R.-S. v. United States,193 the court
considered the claims of residents of the Puerto Rican island of Vieques that the
Department of the Navy was negligent in failing to warn them of the dangers of
contamination from decades of ammunition use on the island. The court found that
the Navy’s decisions in this area were discretionary. The court distinguished cases
of “obvious health hazards” or “easily-correctable danger from environmental
effects” and found in contrast that the policy issues as to the accumulated ammunition
were significant because the Navy had to “weigh competing interests between secrecy
and safety, national security and public health.”194 In reaching this conclusion, the
court relied on cases from the Ninth and D.C. Circuits which held that decisions
concerning pollution disclosures by the military were covered by the discretionary
function exception.195 Even more specifically applicable to the facts here, the
193
671 F.3d 86 (1st Cir. 2012).
194
Id. at 100 (quotation and citation omitted).
195
Id. at 101 (citing Loughlin v. United States, 393 F.3d 155 (D.C. Cir.
2004) (holding government’s decision to bury toxic World War I munitions under
neighborhood without public disclosure subject to policy considerations); In re
Consol. U.S. Atmospheric Testing Litig., 820 F.2d 982 (9th Cir. 1987) (same
outcome where government did not disclose radiation dangers from military testing
program)); see also Slappey v. U.S. Army Corps of Eng’rs, 571 F. App’x 855 (11th
Cir. 2014) (“Indeed, we’ve repeatedly held that an agency’s decision whether to
warn, and how to warn, implicates policy concerns for purposes of the discretionary
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Sanchez court cited to numerous cases which “hold that the government’s decision
whether to warn about the presence of toxins, carcinogens, or poisons falls under the
discretionary function exception to the FTCA’s waiver of sovereign immunity.”196
function analysis. See, e.g., [U.S.] Aviation Underwriters[, Inc.], 562 F.3d [1297],
1300 [(11th Cir. 2009)] (decision whether to warn pilots of severe clear air
turbulence); Monzon v. United States, 253 F.3d 567, 572 (11th Cir. 2001) (decision
whether to warn of rip currents)”).
196
See Sanchez, 671 F.3d at 101-02 (“Ross v. United States, 129 F. App’x
449 (10th Cir. 2005) (discretionary function exception applied to Air Force’s decision
whether and how to warn neighbors of contamination of ground water by
trichloroethylene buried by Air Force); Savary v. United States, No. CV–95–07752,
1999 WL 1178956 (9th Cir. Dec. 14, 1999) (per curiam) (table case) (Jet Propulsion
Laboratory’s failure to issue warnings to its employees regarding dangers of exposure
to soil and groundwater contaminated by hazardous materials fell under the
discretionary function exception because the decision to make such a warning
required judgments balancing the magnitude of risk associated with contamination
with the risks and burdens of a public warning program); Minns v. United States, 155
F.3d 445, 450 (4th Cir. 1998) (military’s decision whether to warn veterans about
dangers of inoculations or exposure to pesticides fell under discretionary function
exception, and ‘questioning the military’s decision’ would create a ‘court-intrusion
problem’); Maas v. United States, 94 F.3d 291, 297 (7th Cir. 1996) (Air Force’s
decision not to warn veterans of cancer dangers associated with cleaning up crash site
of bomber carrying nuclear weapons fell under discretionary function exception:
‘[d]eciding whether health risks justify the cost of a notification program, and
balancing the cost and the effectiveness of a type of warning, are discretionary
decisions’); Angle v. United States, No. 95–1015, 1996 WL 343531, at *3 (6th Cir.
June 20, 1996) (per curiam) (table case) (Air Force’s decision not to warn occupants
of base housing of lead paint contamination fell under discretionary function
exception: the Air Force ‘had to balance the potential effectiveness of a general
warning against the possibility that such a warning might cause unfounded fears’);
Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir. 1992) (Army’s failure to warn
residents that cleanup of nearby toxic waste dump could cause exposure to waste fell
under discretionary function exception because procedures implementing cleanup
implicated policy considerations underlying CERCLA response actions).”
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The Plaintiffs point to the fact that the Government became aware of elevated
levels of contaminants in the early 1980s. The Government Accounting Office
(GAO) study Activities Related to Past Drinking Water Contamination at Marine
Corps Base Camp Lejeune (May 2007) discussed the first testing of the water supply
at the base in 1980.197 The first test lead to additional testing and the understanding
in 1982 and 1983 that TCE and PCE were the contaminants.198 The Report notes that
further testing was not done at that time because the EPA had not yet identified
standard acceptable levels for TCE and PCE in a water supply and variations in the
test results raised questions about the tests’ validity.199 It was in 1984 and 1985 as
part of the Navy NACIP program that the volatile organic contamination was
confirmed and the wells removed from service.200 Loughlin notes that a “decision to
engage in further study to determine the appropriate” levels is “based on public policy
considerations, including the socio-political and economic implications of
recognizing an action level in one situation that could not be consistently applied.”201
This is particularly noteworthy here where there is no dispute that the early to mid197
See Doc. No. [62], Ex. 7, at 20-29.
198
Id.
199
Id.
200
Id.
201
393 F.3d at 165.
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1980s was a period of scientific advancement in the understanding of the dangers of
these types of pollutants.202 None of this discussion relates to the merits of the
Plaintiffs’ allegations that the Government was negligent in its provision of water at
Camp Lejeune. Rather, the court holds that the supply of safe water on a military
base is a function rife with discretion and the decisions involved are the type the
discretionary function doctrine is designed to protect.
3.
Remaining Claims
202
Even in the absence of BUMEDs, the Plaintiffs argue that the court
should apply a North Carolina statute concerning a continuing duty to maintain
premises and inspect for leaking fuel tanks to their negligence claim. The Plaintiffs
contend that North Carolina law imposes on “every person who enters upon an active
course of conduct the positive duty to exercise ordinary care to protect others from
harm and calls a violation of that duty negligence.” See Doc. No. [70], at 44-45
(citing Quail Hollow E. Condo. Ass’n v. Donald J Scholz Co., et. al., 47 N.C. App.
518, 522, 268 S.E.2d 12, 15 (1980)). The Plaintiffs contend that base personnel
violated this duty when they issued a notice that stated only trace amounts of several
organic chemicals had been found in the water supply. See Doc. No. [70], at 44-45
(citing Ex. 15 (1985 notice to residents of Tarawa Terrace about limited water
supply). But, as the court explained above, the inquiry here is focused on whether
there is any mandatory federal statute or regulation that provides mandatory guidance
to Government agents, and not any state law that might provide a standard for
negligence liability. It is not clear to the court whether the Plaintiffs point to this state
statute for the purposes of substantive liability or for the purpose of demonstrating
that the Government officials here did not have any discretion in their actions because
they were mandated by North Carolina law. If it is the former, the court discusses
below that its ruling on the discretionary function exception bars such claims based
on state law claims. If it is the latter, a state statute cannot be the “specifically
prescribed course of action” the Government officials had to follow. See Zelaya, 781
F.3d at 1329 (referring to federal statute, regulation, or policy).
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Although the parties have focused their briefing on the claims of negligence
with respect to the contamination itself, as well as a failure to warn, the court’s
analysis applies equally to all other claims proposed by the Plaintiffs. For example,
Plaintiff Bryant’s proposed first amended complaint adds the following claims: (1)
negligence per se based on BUMEDs, (2) negligence per se based on federal and
North Carolina safe drinking water acts, (3) negligence per se based on the deficient
notice of warning sent by the Internal Revenue Service on September 1, 2008, (4)
loss of consortium under Georgia law, (5) wrongful death and loss of consortium
under North Carolina law, (6) negligent breach of the duty to warn, (7) negligent
infliction of emotional distress under North Carolina law, (8) Fifth Amendment Due
Process, (9) Fourteenth Amendment Equal Protection, (10) negligent breach of
warranty or merchantability based on the sale of drinking water in North Carolina,
(11) nuisance, and (12) trespass.203
The proposed amended complaint by Plaintiff Estate of Grace Wright is not as
specific in the claims it intends to bring. Rather, the Plaintiff simply lists categories
of alleged duties without specific reference to statute or obligation.204 In any event,
203
See Doc. No. [164].
204
See Doc. Nos. [126] and [130].
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the Plaintiff claims: (1) “violation” of BUMED 6240.3 (and other regulations), (2)
duty to warn, and (3) “willful and wanton negligence.”
As the court explained above, the Federal Tort Claims Act grants federal
jurisdiction to these claims under § 1346(b)(1) which provides:
Subject to the provisions of chapter 171 of this title [i.e., 28 U.S.C. §§
2671–2680], the district courts ... shall have exclusive jurisdiction of
civil actions on claims against the United States, for money damages,
accruing on and after January 1, 1945, for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.205
This is why Zelaya explains that “FTCA was enacted to provide redress to injured
individuals for ordinary torts recognized by state law but committed by federal
employees.”206 But the discretionary function exception provides:
(a) Any Claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or 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 the discretion involved be
abused.207
205
28 U.S.C. § 1346(b)(1).
206
See 781 F.3d at 1323.
207
28 U.S.C. § 2680(a).
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Thus, the discretionary function exception applies to “any claim based upon an act
or omission” of a government employee with respect to the “execution” of a statute
or the “performance or the failure to exercise or perform a discretionary function or
duty” on the part of a Government agency or employee. The court finds this language
covers all remaining claims made or proposed by the Plaintiffs.
Additionally, Plaintiff Bryant proposes two federal constitutional claims, the
first of which is a due process claim in which she contends that the Government
violated Mr. Bryant’s due process rights by failing to abide by the BUMEDs, the
Base Orders, the Federal Safe Drinking Water Act, and the North Caroline Safe
Drinking Water Act.208 The second is an equal protection claim described as the
Government’s “fail[ure] or refus[al] to provide Mr. Bryant with the protections from
contaminated drinking water afforded to him under military, federal, and state law.”209
In her proposed amended complaint, the Plaintiff names only the United States
as a defendant. However, claims for damages against the United States for violation
of constitutional rights are “barred by the doctrine of sovereign immunity.”210 For
208
See Doc. No. [164], ¶¶ 173-78.
209
Id., ¶¶ 179-83.
210
Boda v. United States, 698 F.2d 1174, 1176 (11th Cir. 1983); see also
FDIC v. Meyer, 510 U.S. 471, 485 (1994) (“[W]e implied a cause of action against
federal officials in Bivens in part because a direct action against the Government was
not available.”) (emphasis in original); McMahon v. Presidential Airways, Inc., 502
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this reason alone, the court dismisses Plaintiff Bryant’s attempt at alleging
constitutional claims.
Moreover, in addition to the fact that Plaintiff Bryant’s claim is barred by
sovereign immunity because it is brought only against the United States, Plaintiff
Bryant has not alleged sufficient facts to show that the Government’s conduct here
“shocks the conscience” so as to state a claim for a due process violation if the
Plaintiff were to amend her claim to bring a Bivens action against individual
defendants. Typically, substantive due process claims are raised by individuals who
are “in custody.”211 In the event, however, that the Plaintiffs here could still raise a
substantive due process claim, it must be “conscience shocking.”212 In Waddell, the
plaintiffs filed a substantive due process claim against various government officials
arising out of an automobile accident caused by a former county jail inmate who had
been released early to work as a confidential informant for the county and the DEA.
The court undertook a review of the substantive due process clause by noting that:
[w]e must take seriously the Supreme Court’s caution against expanding
the concept of substantive due process. . . . The Due Process Clause
F.3d 1331, 1334-35 (11th Cir. 2007) (“government has immunity by default”).
211
See generally Collins v. City of Harker Heights, 503 U.S. 115 (1992).
212
See Waddell v. Hendry Cnty. Sheriff’s Office, 329 F.3d 1300 (11th Cir.
2003).
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was intended to prevent government officials from abusing their power,
or employing it as an instrument of oppression. The substantive
component of the Due Process Clause protects individual liberty against
certain government actions regardless of the fairness of the procedures
used to implement them. But the Fourteenth Amendment must not be
used through section 1983 as a font of tort law to convert state tort
claims into federal causes of action.213
“Thus, conduct by a government actor will rise to the level of a substantive due
process violation only if the act can be characterized as arbitrary or conscience
shocking in a constitutional sense.”214 The Eleventh Circuit has also noted that the:
Supreme Court has acknowledged that “the measure of what is
conscience-shocking is no calibrated yard stick.” We know for certain,
however, that a showing of negligence is insufficient to make out a
constitutional due process claim. And even intentional wrongs seldom
violate the Due Process Clause. Acts “intended to injure in some way
unjustifiable by any government interest” are “most likely to rise to the
conscience-shocking level.” But, even conduct by a government actor
that would amount to an intentional tort under state law will rise to the
level of a substantive due process violation only if it also “shocks the
conscience.”215
In a non-custodial setting, “a substantive due process violation, would, at the very
least, require showing of deliberate indifference to an extremely great risk of serious
injury to someone in Plaintiff’s position.”216
213
Id. at 1304-05 (quotations and citations omitted).
214
Id. at 1305.
215
Id. (citations omitted).
216
Id. at 1306.
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In Dacosta v. Nwachukwa,217 the court reiterated that the “[s]ubstantive due
process doctrine is not a ‘font of tort law to be superimposed upon whatever systems
may already be administered by the States.’”218 “Indeed, substantive rights ‘created
only by state law (as is the case with tort law and employment law) are not subject
to substantive due process protection . . . because substantive due process rights are
created only by the Constitution.’”219 “Conduct by a government actor that would
amount to an intentional tort under state law would only rise to the level of a
substantive due process violation if it ‘shocks the conscience’ or interferes with rights
‘implicit in the concept of ordered liberty’ – in other words, only if it affects
individual rights guaranteed, explicitly or implicitly, by the Constitution itself.”220
217
304 F.3d 1045 (11th Cir. 2002).
218
Id. at 1048 (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).
219
Id. (quoting McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en
banc).
220
Id. (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)); see
also T.W. ex rel. Wilson v. School Bd. of Seminole Cnty., 610 F.3d 588, 598 (11th
Cir. 2010) (“Due Process Clause protects individuals against arbitrary exercises of
government power, but ‘only the most egregious official conduct can be said to be
arbitrary in the constitutional sense.’” . . . .“Conduct intended to injure in some way
unjustifiable by any government interest is the sort of official action most likely to
rise to conscience-shocking level.”); Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373,
1376 (11th Cir. 2002) (“Acts that fall between the poles of negligence and malign
intent require courts to make ‘closer calls.’”. . . .“When shaping the contours of dueprocess law, the [Supreme] Court has often emphasized the need to prevent the
Fourteenth Amendment from becoming a surrogate for conventional tort
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The Plaintiffs here allege negligence, but there are no sufficient facts in the Plaintiffs’
complaints to “shock the conscience.”
Plaintiff Bryant also has not offered any basis for why Mr. Bryant is entitled
to protection under the Equal Protection Clause. To raise a disparate treatment claim
under the federal Equal Protection Clause, a plaintiff must allege that (1) he is
similarly situated with other persons who were treated differently and (2) the
difference in treatment was based on a constitutionally protected interest.221 Plaintiff
Bryant has not articulated any constitutionally protected interest upon which the
treatment of Mr. Bryant was allegedly based.
A plaintiff may also allege a “classification” Equal Protection claim.222 Courts
recognize a subset of the classification cases known as “class of one” Equal
principles.”).
221
See, e.g., Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
(1979).
222
See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47
(1985) (Equal Protection Clause requires State to treat all persons similarly situated
alike or to avoid all classifications that are “arbitrary or irrational” and reflect “bare
. . . desire to harm a politically unpopular group”); Lofton v. Secretary of Dep’t of
Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) (“The central mandate
of the equal protection guarantee is that ‘[t]he sovereign may not draw distinctions
between individuals based solely on differences that are irrelevant to a legitimate
governmental objective.’”).
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Protection cases.223 In Olech, the Court stated that “[o]ur cases have recognized
successful equal protection claims brought by a ‘class of one,’ where the plaintiff
alleges that she has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.”224 In
Griffin, for example, the court considered (but ultimately rejected) a claim by a
property owner who requested a connection to the municipal water supply and was
told she would need to give the city an easement but where she claimed that other
property owners getting a connection were not required to give an easement.225 It also
does not appear that Plaintiff Bryant is asserting a classification or “class-of-one”
equal protection claim because there is no allegation that the Government acted
against Mr. Bryant based on characteristics unique to him.
For the foregoing reasons, the court finds the discretionary function exception
applies to the provision of a water supply at Camp Lejeune and therefore bars the
Plaintiffs’ negligence and related state law claims regarding the alleged
contamination of the water supply. The court GRANTS the Government’s motion
223
See, e.g., Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1200-01 (11th Cir.
2007) (citing Village of Willowbrook v. Olech, 528 U.S. 562 (2000)).
224
See 528 U.S. at 564-65.
225
See 496 F.3d at 1203-07.
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to dismiss on the basis of the discretionary function exception [62] and GRANTS the
Government’s motion to dismiss [127].
D.
Remaining Procedural Requests
The Plaintiffs ask that the court establish (1) a Steering Committee, (2) set a
schedule for the filing of an Administrative Master Complaint, an answer by the
Government, and discovery. The court previously found that due to the relatively
small number of complaints filed in the MDL, it was not necessary at the origination
of the MDL to file a Master Complaint.226 The court stated that after the resolution
of the Feres and discretionary function exception issues, the court “will establish a
procedure, if necessary, for the filing of an Administrative Master Complaint and
assertion of defenses.”227
Now that the court has considered all of the allegations in the Plaintiffs’
complaints and proposed amended complaints, and has determined that the Plaintiffs
cannot move forward, there is no need for any further proceedings. Furthermore, the
court DENIES AS MOOT the Government’s motion for order relating to the
preservation of documents and electronically stored information [37].
E.
Pro Se Motions
226
See Doc. No. [24], at 6.
227
Id. at 7.
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Three individual plaintiffs have been filing pro se motions with the court. To
address some of these motions, it is necessary to review prior rulings made by the
court in the early stages of this litigation. On October 19, 2011, the court entered an
order staying “any deadline the Government has to file a responsive pleading (such
as an answer or motion to dismiss) in any case that is transferred to the Multidistrict
Litigation while the parties are conducting discovery and briefing on the threshold
jurisdictional issues.”228 As the court was still addressing jurisdictional issues in this
latest order, the Government’s obligation to file responsive pleadings has still been
stayed.
On October 17, 2013, the Judicial Panel on Multidistrict Litigation transferred
the case of Johnston v. Administrator, Environmental Protection Agency, Civil
Action No. 3:13-CV-10995 (S.D. W.Va.) to the MDL.229 Shortly thereafter, Mr.
Johnston filed a motion to amend complaint.230 The purpose of his proposed
amendment is to increase the monetary relief sought from $5,000,000 to $10,000,000
due to a recent diagnosis of renal cancer. Because the court has determined that the
228
See Doc. No. [21].
229
See Doc. No. [94].
230
See Doc. No. [97].
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Plaintiffs’ claims cannot go forward, the court DENIES AS MOOT Plaintiff
Johnston’s motion to amend [97].
Mr. James Douse filed a complaint in the Northern District of Georgia. On
August 8, 2012, the court transferred that complaint to the Multidistrict Litigation.231
On August 19, 2015, the court denied Mr. Douse’s “motion for an indicative ruling”
as the issues referenced by Mr. Douse in that motion at that time were pending on
appeal before the Eleventh Circuit.232 Mr. Douse filed a motion for reconsideration
of that order. In his motion for reconsideration, Mr. Douse references the injuries
suffered by him and his family allegedly due to water contamination at Camp
Lejeune. Mr. Douse’s motion for reconsideration addresses several of the same
arguments made by other Plaintiffs as to the statute of repose and the issue of
negligence under the Federal Tort Claims Act. For the same reasons as the court has
given above, the court DENIES Mr. Douse’s motion for reconsideration [117].
Mr. Douse also filed a motion to amend his complaint. In that motion, Mr.
Douse states he wishes to amend his complaint to add the statement of Secretary of
the Department of Veterans Affairs Bob McDonald concerning the ATSDR report on
contamination of drinking water at Camp Lejeune, as well as several points of
231
See Doc. No. [86].
232
See Doc. No. [116].
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procedural history in the litigation. Mr. Douse also alleges that the Government
committed “fraud” by hiding the contamination of the drinking water at Camp
Lejeune. He also adds arguments similar to those he raised in his motion for
reconsideration. For the same reasons as given above, the court DENIES AS MOOT
Mr. Douse’s motion to amend complaint [123].
Mr. Douse files a motion for punitive and exemplary damages due to the fact
that the Government attached Mr. Douse’s administrative complaint to the
Government’s opposition to Mr. Douse’s motion to amend. Mr. Douse claims the
attachment of the administrative file is a violation of the Health Insurance Portability
and Accountability Act (“HIPAA”) and thus he is entitled to punitive and exemplary
damages. The Government responds that the attachment of the entire file was
inadvertent. The Government also notes that it requested that the Clerk’s Office place
Mr. Douse’s administrative complaint under seal and this has been done. The court
finds that any exposure of information was inadvertent and for only a brief period of
time. Therefore, the court DENIES Plaintiff Douse’s motion for punitive and
exemplary damages [143]; and DENIES Plaintiff Douse’s motion for additional
award of damages, for relief based on Bivens, and for a protective order [156].
Mr. Andrew Straw has filed several motions for default judgment contending
that the Government has not answered his complaint. However, as the court
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explained above, when this Multidistrict Litigation case was opened, the court made
several procedural rulings to streamline the litigation. Significant to Mr. Straw’s
motions, the court directed the Government’s obligation to answer the Plaintiffs’
complaints was stayed until the court resolved the threshold legal issues discussed in
this order. The court also limited discovery to only two issues – the Feres doctrine
and the discretionary function exception. No other discovery was permitted until the
court resolved the threshold issues it addressed above. Under the terms of the Case
Management Order, the Government is not required to answer any Requests for
Admission propounded by any Plaintiff. For this reason, the court DENIES Plaintiff
Straw’s motion for clerk’s entry of default [121]; DENIES Plaintiff Straw’s fourth
motion for clerk’s entry of default [169]; GRANTS the Government’s motion for a
protective order [172]; and DENIES Plaintiff Straw’s first motion for clerk’s entry
of default [178].
Mr. Straw also filed a motion for permanent injunction, but this motion appears
to address current conditions at Camp Lejeune and Mr. Straw is not a current resident.
Thus, he does not have standing to seek any relief with respect to current conditions
at Camp Lejeune. The court DENIES Plaintiff Straw’s motion for permanent
injunction [165]. Finally, Mr. Straw asks that the court refund his $400 filing fee in
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this case because he has not received any justice.233 But Mr. Straw did not originally
file this suit in the Northern District of Georgia; he filed it in the District Court for
the Northern District of Illinois. Moreover, he also states that courts have denied him
in forma pauperis status and have determined that the cases he has filed are frivolous.
Dissatisfaction with the rulings of the court is not a sufficient basis for seeking refund
of a filing fee. The court DENIES Plaintiff Straw’s motion for refund and further
relief [192].
F.
Summary
The court has determined that it must follow the binding precedent of Bryant
and concludes that the Plaintiffs’ claims are barred by the ten-year statute of repose
under North Carolina law. Even if the claims were not barred by the statute of
repose, the court also finds that any claims by service members that accrued during
their time as service members are barred by the Feres doctrine. Finally, the court also
finds that there were no mandatory specific directives in the form of federal statute
or regulations which removed discretion from government actors regarding the water
supply at Camp Lejeune, and decisions relating to the disposal of contaminants, the
provision of water on the base, and whether any base inhabitant should be warned are
233
See Doc. No. [192].
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policy based decisions and the discretionary function exception applies, barring the
Plaintiffs’ claims.
Plaintiff Rivera contends that none of these rulings applies to his case because
it was not transferred to the MDL until February 4, 2016, after the Government filed
its latest motion to dismiss.234 The court notes that in its first Case Management
Order, it stated that the order would “govern the practice and procedure in any tagalong actions transferred to this court by the Judicial Panel on Multidistrict
Litigation.”235 But the court did not make any specific order as to whether substantive
rulings on common issues would also control the tagalong cases.
Under the present circumstances, however, the court finds that the rulings it
made here do apply to Plaintiff Rivera. As an initial matter, Plaintiff Rivera is
represented by the same counsel that represents Plaintiff Wright; and Plaintiff Rivera
adopted the arguments of Plaintiff Wright in response to the Government’s most
recent motions. Accordingly, Plaintiff Rivera did have an opportunity to respond.
Furthermore, much of what the court has ordered here is a reflection of binding
authority rendered by the United States Supreme Court and the Eleventh Circuit.
Nothing Plaintiff Rivera argues now can change that binding precedent. The court
234
See Doc. No. [159].
235
See Doc. No. [16], at 1.
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rejected above an argument that allegations of fraud and concealment would toll the
statute of repose. As to the discretionary function and Feres rulings, the court ordered
a specific discovery period and directed that the period of discovery would not be reopened for later filed tagalong cases.236 Thus, there cannot be new information from
Plaintiff Rivera that would alter the court’s conclusions as to the Feres doctrine and
the discretionary function exception.
Although the court grants the Government’s motions to dismiss, the court must
also address the manner in which the cases should be dismissed. A dismissal with
prejudice applies to all claims disposed of under North Carolina’s statute of repose,
as well as the Feres doctrine. The dismissal under the discretionary function
exception requires more detailed discussion. When the discretionary function
exception applies, the court is without subject matter jurisdiction. The Eleventh
Circuit has held that a “dismissal for lack of subject matter jurisdiction is not a
judgment on the merits and is entered without prejudice.”237 The Ninth Circuit,
236
See Doc. No. [24], ¶ 2.
237
See, e.g., Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys.,
Inc., 524 F.3d 1229 (11th Cir. 2008); Stanley v. Central Intelligence Agency, 639
F.2d 1146, 1157 (5th Cir. 1981) (internal citations omitted) (“[w]hen a court must
dismiss a case for lack of jurisdiction, the court should not adjudicate the merits of
the claim”); see also Ashford v. United States, 463 F. App’x 387, 395-96 (5th Cir.
2012) (holding that dismissal under discretionary function exception of FTCA on
jurisdictional grounds and therefore is without prejudice and not judgment on merits);
Hart v. United States, 630 F.3d 1085, 1091 (8th Cir. 2011) (same).
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however, has recognized that the discretionary function exception has its roots in the
sovereign immunity of the United States Government. Therefore, in Frigard v.
United States,238 the court held that “[o]rdinarily, a case dismissed for lack of subject
matter jurisdiction should be dismissed without prejudice so that a plaintiff may
reassert his claims in a competent court, . . . however, the bar of sovereign immunity
is absolute: no other court has the power to hear the case, nor can the [plaintiffs]
redraft their claims to avoid the exceptions to the FTCA. Thus, the district court did
not abuse its discretion in dismissing the action with prejudice.”239 The Eleventh
Circuit touched on this issue in Zelaya, where it noted that the court has always
considered issues of § 2680 to be jurisdictional, but noted as well that “we also
recognize that in its recent jurisprudence, the Supreme Court has become more
reluctant, when sanctioning the dismissal of some claims, to base its rejection on
jurisdictional grounds, as opposed to a deficiency in the merits of the claim.”240 But
238
862 F.2d 201 (9th Cir. 1988).
239
Id. at 204 (citation omitted).
240
781 F.3d at 1339; see also Parrott v. United States, 536 F.3d 629, 634
(7th Cir. 2008) (holding exceptions to United States’ waiver of sovereign immunity,
found in § 2680(a)-(n), “limit the breadth of the Government’s waiver of sovereign
immunity, but they do not accomplish this task by withdrawing subject-matter
jurisdiction from the federal courts”).
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the viability of this theory might be in some doubt as a result of Simmons v.
Himmelreich.241
There are additional concerns in this case that are unique. As the court
explained above, this Multidistrict Litigation was established to handle all complaints
filed concerning contamination of the water supply at Camp Lejeune. The court
determined that certain threshold legal issues had to be addressed before proceeding
to any extensive discovery or further development of the merits of the cases. Various
courts have taken over five years to address those threshold issues and have reached
the conclusion that CERCLA’s statute of limitations period does not preempt North
Carolina’s statute of repose and that the statute of repose does not contain an
exception for latent disease claims. Now, this court has also held that to the extent
any claims remain after those rulings, the Government’s actions with respect to the
water supply at Camp Lejeune are covered by the discretionary function exception
to the Federal Tort Claims Act. As explained above, the resulting lack of subject
matter jurisdiction is a consequence of sovereign immunity and is not a situation
where another court would potentially have subject-matter jurisdiction over the
Plaintiffs’ claims. Furthermore, the court has already considered all of the allegations
raised by the Plaintiffs in their latest proposed amendments. Thus, there is no further
241
___ U.S. ___, 136 S. Ct. 1843 (2016) (holding FTCA’s judgment bar
does not apply to cases decided under discretionary function exception).
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amendment to the Plaintiffs’ complaints that would potentially allow this court – or
any other – to exercise subject matter jurisdiction over the Plaintiffs’ claims. Thus,
although the court dismisses without prejudice under the discretionary function
exception due to Eleventh Circuit precedent, for all practical purposes, there is no
other forum where the Plaintiffs could bring these claims without meeting the same
sovereign immunity obstacle under the discretionary function exception.
The court must now determine what remains to be done in this Multidistrict
Litigation. The Government argues that once the court has determined it does not
have subject matter jurisdiction over the Plaintiffs’ claims, the court should dismiss
the pending cases. The Plaintiffs respond that the appropriate action is remand of the
cases back to the transferor courts.242
Under § 1407, “[e]ach action so transferred shall be remanded by the panel at
or before the conclusion of such proceedings to the district from which it was
transferred unless it shall have been previously terminated.”243 The court has
terminated the causes of action and therefore, there is no need to recommend to the
242
This transfer is distinguished from the Plaintiffs’ prior argument that the
court should engage in a jurisdictional or venue-based transfer – an argument the
court rejected above.
243
28 U.S.C. § 1407.
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Judicial Panel that the cases be sent back to the originating districts. The rules of the
Judicial Panel state that:
Where the transferee district court terminates an action by valid order,
including but not limited to summary judgment, judgment of dismissal
and judgment upon stipulation, the transferee district court clerk shall
transmit a copy of that order to the Clerk of the Panel. The terminated
action shall not be remanded to the transferor court and the transferee
court shall retain the original files and records unless the transferee
judge or the Panel directs otherwise.244
Accordingly, the court terminates this action without a suggestion of remand.
III.
Conclusion
The court DENIES AS MOOT the Government’s motion for order relating
to the preservation of documents and electronically stored information [37];
GRANTS the Government’s motion to dismiss [61]; GRANTS the Government’s
motion to dismiss for lack of subject-matter jurisdiction [62]; DENIES AS MOOT
the Plaintiffs’ motion for oral argument [72]; DENIES AS MOOT Plaintiff Bryant’s
motion to amend complaint [77]; DENIES AS MOOT the Plaintiffs’ motion for
extension of time to complete discovery and to stay [83]; DENIES AS MOOT
Plaintiff Johnston’s pro se motion to amend [97]; DENIES Plaintiff Douse’s pro se
motion for reconsideration [117]; DENIES Plaintiff Straw’s pro se motion for clerk’s
entry of default [121]; DENIES AS MOOT Plaintiff Douse’s pro se motion to
244
See Panel Rule 10.1(a).
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amend [123]; DENIES AS MOOT Plaintiff Wright’s motion to amend complaint
[126]; GRANTS the Government’s motion to dismiss all cases based on North
Carolina statute of repose [127]; DENIES Plaintiff Douse’s pro se motion for
punitive and exemplary damages [143]; DENIES AS MOOT the Government’s
motion to strike [152]; DENIES Plaintiff Douse’s pro se motion for additional award
of damages, for relief based on Bivens, and for a protective order [156]; DENIES AS
MOOT Plaintiff Bryant’s supplemental motion to amend [164]; DENIES Plaintiff
Straw’s pro se motion for permanent injunction [165]; DENIES Plaintiff Straw’s pro
se fourth motion for clerk’s entry of default [169]; GRANTS the Government’s
motion for protective order [172]; DENIES the Plaintiffs’ motion to transfer pursuant
to 28 U.S.C. § 1631 or motion for conditional suggestion of remand [176]; DENIES
Plaintiff Straw’s pro se first motion for clerk’s entry of default [178]; DENIES AS
MOOT the Plaintiffs’ motion for a hearing [188]; and DENIES Plaintiff Straw’s pro
se motion for refund and further relief [192].
The Clerk of the Court is DIRECTED to DISMISS this action.
SO ORDERED, this 5 day of December, 2016.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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