Petition for Writ of Certiorari — Andrew U. D. Straw, Petitioner v. United States, et al.

Supreme Court briefDec 30, 2017

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No.

In the

Supreme Court of the United States

Andrew U. D. Straw,

Petitioner,

United States,

Respondent.

APPENDIX to Petition for a Writ of Certiorari

to the Eleventh Circuit U.S. Court of Appeals

APPENDIX

Andrew U. D. Straw

1900 E. Golf Rd., Suite 950A

Schaumburg, IL 60173

T (312) 985-7333 F (877) 310-9097

Email: andrew@andrewstraw.com

Petitioner, Proceeding Pro Se

A- 2

INDEX TO APPENDIX

COVER

INDEX TO THE APPENDIX

ELEVENTH CIRCUIT ORDER OF BAR

ADMISSION DENIAL 11/1/2017

A3A5

ELEVENTH CIRCUIT ORDER

DISMISSING ANDREW'S FAMILY'S

APPEALS 12/4/2017

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U.S. Constitution, Amendment V

Case: 16-17573 Date Filed: 12/04/2017 Page: 2 of 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-17573-GG

In Re: CAMP LEJEUNE, NORTH CAROLINA WATER CONTAMINATION LITIGATION.

ANDREW U.D. STRAW,

JAMES NATHANIEL DOUSE,

ERICA Y. BRYANT,

ROBERT BURNS,

DANIEL J. GROSS, IT,

ROBERT PARK,

SHARON KAY BOLING,

LINDA JONES,

AVA STRAW,

JAMES STEVENS,

ESTATE OF SANDRA KAY ISAACS STRAW STEVENS,

Plaintiffs Appellants,

versus

UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

United States of America,

ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY,

DIVISION DIRECTOR, DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY,

DEPARTMENT OF DEFENSE,

SECRETARY OF THE NAVY,

Defendants Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

ENTRY OF DISMISSAL: Pursuant to the 11th Cir.R. 42-1(b), the appeal is dismissed for want

of prosecution as to appellants Ava Straw, James Stevens and the Estate of Sandra Kay Isaacs

Straw Stevens because they have failed to file an appellant's brief within the time fixed by the

Case: 16-17573 Date Filed: 12/04/2017

Page: 3 of 3

rules, effective December 04, 2017.

DAVID J. SMITH

Clerk of Court of the United States Court

of Appeals for the Eleventh Circuit

by: Joe Caruso, GG, Deputy Clerk

FOR THE COURT BY DIRECTION

Case: 1647573 Date Filed: 11/01/2017 Page: 1 of 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No 16-17573-GO

In Re: CAMP LEJEUNE, NORTH CAROLINA WATER CONTAMINATION LITIGATION.

ANDREW U.D. STRAW,

JAMES NATHANIEL DOUSE,

ERICA Y. BRYANT,

el al.,

Plaintiffs Appellants,

versus

UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

United States of America,

et a!,,

Defendants Appellees.

On Appeal from the United States District Court for the

Northern District of Georgia

Andrew Straw has submitted a "Motion to Reconsider or Reconsider En Bane," seeking

reconsideration of the October 16, 2017 order denying his motion to suspend the rules and his

application for admission to this Court's Bar, His motion states that with his application for

admission, he provided a "Certificate of Good Standing from the Virginia State Bar."

Case: 16-17573 Date Fed: 11/01/2017 Page: 2 of 2

This Court's rules, however, require that applicants to the Bar provide, among other

things, "a certificate of good standing issued within the previous six months from a court

described in FRAP 46(a)(1)" 11th Cit. R. 46-I (emphasis added). Federal Rule of Appellate

Procedure 46(a)(1) provides: "An attorney is eligible for admission to the bar of a court of

appeals if that attorney is of good moral and professional character and is admitted to practice

before the Supreme Court of the United States, the highest court of a state, another United States

court of appeals, or a United States district court (including the district courts for Guam, the

Northern Mariana Islands, and the Virgin Islands)." Similarly, an attorney seeking to appear

pro hac vice in a particular proceeding before this Court must provide a certificate of good

standing from one of those listed courts. 11th Cit. R. 46-4 (stating that an attorney applying to

appear pro hac vice in a particular proceeding must provide, among other things, a certificate of

good standing issued within the previous six months from a court described in Fed. R. App. P.

46(a)(1)).

Mr. Straw has not provided a certificate of good standing from the Supreme Court of

Virginia or any of the other courts listed In Fed. R. App. P. 46(a)(1), and he remains suspended

from practice in Indiana by the Indiana Supreme Court

Mr. Straw's motion for recusal is DENIED.

Mr. Straw's application for admission to this Court's Bar has been denied. The Court's

rules do not provide for reconsideration of that decision. Any additional submissions relating to

this admissions matter or any pending or closed disciplinary matters will not be accepted for

filing in this Court.

CHIEF JUDGE

Case: 16-17573 Date Filed: 10/16/2017 Page: 1 of 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-17573-GG

In Re: CAMP LEJEUNE, NORTH CAROLINA WATER CONTAMINATION LITIGATION.

ANDREW U.D. STRAW,

JAMES NATHANIEL DOUSE,

ERICA Y. BRYANT,

et al.,

Plaintiffs Appellants,

versus

UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

United States of America,

et al.,

Defendants Appellees.

On Appeal from -------------------------the United States District Court for the

Northern District of Georgia

-------------------------ORDER:

Andrew Straw's "Instanter Motion" is DENIED.

Andrew Straw's "Motion Re: W.D. Wisconsin & VSB Certificate," which is construed as

a motion to suspend Fed. R. App. P. 46(a)(1) and 11th Cir. R. 46-1 and accept his deficient

application for admission, is DENIED.

Case: 16-17573 Date Filed: 10/16/2017 Page: 2 of 2

Andrew Straw's application for admission to the bar is DENIED. Because Andrew

Straw has not been admitted to practice before this Court, he shall not be regarded as counsel of

record for Ava Straw, James Stevens, and the Estate of Sandra Kay Isaacs Straw Stevens. This

Court shall regard Straw's prose initial brief, filed on May 12, 2017, as being filed solely on his

own behalf.

Appellants Ava Straw and James A. Stevens are directed to file their initial briefs within

forty (40) days of the date of this order. If the briefs are not filed within this time period, this

appeal will be dismissed as to these appellants.

The Court directs the Estate of Sandra Kay Isaacs Straw Stevens to retain counsel

admitted to practice before this Court, and to file its counseled brief within forty (40) days of the

date of this order. If the counseled brief is not filed within this time period, this appeal will be

dismissed as to the Estate of Sandra Kay Isaacs Straw Stevens.

Is! Ed Carries

CHIEF JUDGE

Case: 16-17573 Date Filed: 09/06/2017 Page: 1 of 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-17573-GG

In Re: CAMP LEJEUNE, NORTH CAROLINA WATER CONTAMINATION LITIGATION.

LEANDRO PEREZ, et al.,

Plaintiffs,

ANDREW U.D. STRAW,

JAMES NATHANIEL DOUSE,

ERICA Y. BRYANT,

ROBERT BURNS,

DANIEL J. GROSS, II,

ROBERT PARK,

SHARON KAY BOL1NG,

LINDA JONES,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

United States of America,

ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY,

DIVISION DIRECTOR, DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY,

DEPARTMENT OF DEFENSE,

SECRETARY OF THE NAVY,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

Case: 16-17573 Date Piled: 09/06/2017 Page: 2 of 2

Before: WILSON and JULIE CARNES, Circuit Judges.

BY THE COURT:

Upon review of the parties' responses to our jurisdictional questions, and without

commenting on any issues that may remain outstanding as to the payment of filing fees, we

conclude that Andrew Straw, Ava Straw, James Stevens, and Andrew Straw, as the Administrator

of the Estate of Sandra Kay Isaacs Straw Stevens, have perfected appeals from the district court's

December 5, 2016 judgment dismissing their cases that were transferred and consolidated for

pre-trial proceedings in the district court under MDL No. 2218. See Fed. R. App. P. 3. Notably,

they have filed two separate appeals, one from the dismissal of a complaint filed by Andrew

Straw and Ava Straw, and another from the dismissal of a complaint separately filed by James

Stevens and Andrew Straw, as the Administrator of the Estate of Sandra Kay Isaacs Straw

Stevens. See Gelboim v. Bank ofAm. Corp., 135 S. Ct. 897, 904 (2015) ("Cases consolidated for

MDL pre-trial proceedings ordinarily retain their separate identities, so an order disposing of one

of the discrete cases in its entirety should qualify under [28 U.S.C.] § 1291 as an appealable final

decision."). Accordingly, their appeals MAY PROCEED.

We will address Andrew Straw's "Motion for Admission & Appearance" in a separate

order.

Case 1:11-md-02218-TWT Document 197 Filed 12/05/16 Page 1 of 96

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. 1:1 1-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 PLQ

motion to amend [97]; Plaintiff Douse's pLo se motion for reconsideration [117];

Plaintiff Straw's pLo se motion for clerk's entry of default [121]; Plaintiff Douse's

pLo 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 pm motion for punitive and exemplary damages

[143]; the Government's motion to strike [152]; Plaintiff Douse's pm 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 pm

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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 plo 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].

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.' 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

.See Doc. No. [11], Transcript, April 19, 2011.

See Doe. 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").

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function exception.' The parties had briefed motions to dismiss based on these two

theories.' 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

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).

See Doc. Nos. [61] and [62].

See Doc. No. [ 13 ].

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matter of a latent disease exception.' 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.'

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,'° 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." The Eleventh Circuit then took up the

See Doc. No. [49].

See Doc. No. [68].

See Doc. No. [8 1 ].

See Doc. No. [87].

See Doc. No. [89].

See CTS Corp. V. Waldburger,

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U.S.

134 S. Ct. 2175 (2014).

Case 1:11-md-02218-TWT Document 197 Filed 12/05/16 Page 6 of 96

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.'2 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.'3

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."" 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

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See Bryant v. United States, 768 F.3d 1378 (11th Cir. 2014).

Id. at1381.

IL at 1381-82 (quoting N.C. Gen. Stat. Aim. § 130A-26.3).

Id. at 1382.

Case 1:11-md-02218-TWT Document 197 Filed 12/05/16 Page 7 of 96

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."" 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.'7 The Supreme Court denied

the Plaintiffs' petition for writ of certiorari.'8 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. '9 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.

Id. at 1385.

See Doc. Nos. [106] and [109].

See 136 S. Ct. 71(2015).

See Doc. No. [124].

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II.

Discussion

Motion to Transfer or Remand

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.2° 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 ."2'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

817 F.3d 96 (4th Cir. 2016).

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 .2' 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 Stable's claim arising from disease."" The Stahie 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

Id.

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. jç.L 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 Stahie, finding

that it ignored the plain language of the statute. See Bryant, 768 F.3d at 1381.

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817 F.3d at 104.

Id. at104-07.

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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. ,2' 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."" 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

See Doc. No. [160], at 15-16.

575 F.3d 616 (6th Cir. 2009).

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.").

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.," 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 Stable." 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

652 F.2d 278, 283 (2d Cir. 1981).

See Doc. No. [160], at 16-22.

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Carolina law. The Fourth Circuit

like all federal courts across the country

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 Stahie 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 Stahie, 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

See,

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)).

Stahie, 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, 322N.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. Burns], 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

Coming 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

Id. at114.

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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 Stable is now binding authority on North

Carolina law and for this reason, the court must reconsider its prior ruling and should

apply Stable 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

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

DusenlFerens, rather the transferee court should follow the law of its own circuit on

£,

James Ventures. L.P. ex rel. Alpert v. Timco Aviation Servs..

315 F. App'x 885, 888 (11th Cir. 2009).

See,

Ferens v. John Deere Co., 494 U.S. 516, 524 (1990); Van

Dusen v. Barrack, 376 U.S. 612 (1964).

Wahl v. General Electric Co., 786 F.3d 491 (6th Cir. 2015)

(discussing application of Van DusenlFerens 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. ,41 "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

The Zelaya court also explained that:

.S,

In re Korean Air Lines Disaster of September 1, 1983, 829

F.2d 1171 (D.C. Cir. 1987), affd on other grounds sub nom. Chan v. Korean Air

Lines, Ltd., 490 U.S. 122 (1989); U.S. ex rd. Hockett v. ColumbialHCA Healthcare

Corp., 498 F. Supp. 2d 25, 39-40 (D.D.C. 2007).

Hockett, 498 F. Supp. 2d at 40. The Plaintiffs' citation to In re Dow

Corning Corp. (Sutherland v. DCC Litig. Facility), 778 F.3 d 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. Jh 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.

Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015).

Id (citing Millbrook v. United States,

1443 (2013)).

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U.S.

133 S. Ct. 1441,

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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

Id.

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. ,16 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.""' 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 locidelicti rule in

tort cases.49 Significantly, under North Carolina law, a statute of repose is considered

Id. at 1322.

See Richards v. United States, 369 U.S. 1, 11(1962); Schippers v.

United States, 715 F.3d 879, 886 (11th Cir. 2013).

Harco, 206 N.C. App. at 694, 698 S.E.2d at 724.

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.

£, g.y 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.5'

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 .,,12 "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."" Here, the Judicial Panel found under section 1407 that all

See Doc. No. [176].

28 U.S.C. § 1407.

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

See Doe. No. [1], Transfer Order.

28 U.S.C. § 1631.

See, g.yITT 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."

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

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.

523 U.S. 26 (1998).

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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."" 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. § l406. 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

Id.

Id. at33.

Id at 33-34.

Id. at35.

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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. ,14 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

plaintiffs choice [of forum]."" 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.

Id. at 37.

Id. at 40.

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

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.").

See In re Chiguita 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).

____

____,

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 ofjustice" because the

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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."7° 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 ofjustice." 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

See Doc. No. [176], at 12.

Id. at 13.

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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.

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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

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].

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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.

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

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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. jçj 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).

N.C. Gen. Stat. § 1-50(a)(5).

327 N.C. 491, 398 S.E.2d 586 (1990).

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." I, 328

S.E.2d at 279-80 (emphasis added).

. ."

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

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.").

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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

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).

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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

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. 12 "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,

178 N.C. App. 222, 631 S.E.2d 143 (2006).

Id. at 226, 631 S.E.2d at 146.

j (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..

North Carolina holds that "[s]ubstantive rights, such as those created

by the statute of repose are not subject to tolling.""

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

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").

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").

CTS Corp. v. Waldburger,

U.S.

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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 ajudgment 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.""

For these reasons, the court finds that any failure to warn claims

alleged "renewed" duty to warn of the release of the ATSDR report

including

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

Id. at2183.

(quotation and citation omitted).

Id.

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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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.9'

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.

The court notes that the Plaintiffs make other less than persuasive policy

arguments concerning the application of the Feres doctrine. See Doe. 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."" "Where the claimant is injured on base

while on 'active duty,' Feres applies virtually as a matter of law.""

of the statute that Feres pretends to interpret so as to be absurd").

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).

Whitley v. United States, 170 F.3d 1061, 1070 (11th Cir. 1999).

Jimenez v. United States, 158 F.3d 1228, 1229 (11th Cir. 1998) (per

curiam).

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). S,

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.

HIJ

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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

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).

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 Doe. 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,'°° the court considered

the claims of the representatives of a deceased service member who alleged that the

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).

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."' 0' 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.'03

101

Id. at875.

102

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].

Motion to Dismiss (Discretionary Function Exception)"'

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. S 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).'°6 "These exceptions must be strictly construed in favor of

the United States, and when an exception applies to neutralize what would otherwise

106.

See,

Zelayay. United States, 781 F.3d 1315, 1322(11th Cir. 2015).

ffel

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be a waiver of immunity, a court will lack subject matter jurisdiction over the

action.""'

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.'°8

"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.""'

"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.""' "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

jh (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 maimer."1 ' "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."3

"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."' 14 "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."5 "Indeed, when a government agent is permitted to

III

kh (quotations and citations omitted).

Id. at 1329-30 (quotation and citation omitted).

113

1çh at 1330 (quotation and citations omitted).

114

ILL. (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."6 "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."' 17

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."'

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

JL (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."' Thus, the court may consider matters outside of the pleadings to

determine whether it has subject-matter jurisdiction."'

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,

120

See,

121

992 F.2d 1523 (11th Cir. 1993).

Odyssey Marine Exploration. Inc. v. Unidentified Shipwrecked

Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011); OR 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).

McMaster v. United States, 177 F.3d 936, 940 (11th Cir.

1999).

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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,

122

concessioner, or park employee.

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." 23

Under this policy, rangers would visually inspect trees and report back any known

hazardous trees for removal.'24 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.'25 Park personnel met to

discuss the information about black locust trees. 126

122

Id. at 1525.

123

Id.

124

Id.

125

Id.

126

Id.

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In carefully considering both United States v. Gaubert, 12' and Berkovitz v.

United States, '28 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. 121

The court found, instead, that it "is the governing administrative policy, not the Park

Service's knowledge of danger, however, that determines whether certainconduct 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." "0 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."' 31

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,'32 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. 131

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.

Id.

132

956F.2d 1071 (llthCir. 1992).

133

992 F.2d at 1529.

134

Id. at 1530-31.

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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. '35 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. 116

The Safe Drinking Water Act of 1974 authorized the Environmental Protection

Agency to regulate drinking water standards for public water supplies."' 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 Doe. No. [136], Plaintiff Bryant's Proposed Amended Complaint,

¶J 106-07.

137

See

U.S.C. §§ 300f et q

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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.'39 Under a general category of "chlorinated hydrocarbons," the

EPA regulated four pesticides

endrin, lindane, methoxychior, and toxaphene.14°

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. 41 The chemicals that the Plaintiffs specify in their complaints

are benzene, trichloroethylene (TCE), tetrachioroethylene (PCE), dichioroethene

(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.'42 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. '43

In 1984, the EPA issued a proposal for "recommended" maximum

contamination levels for TCE, PCE, DCE, and vinyl chloride. '44 It was not until 1989

that the EPA issued final regulations for enforceable maximum contamination levels

for benzene, TCE, and vinyl chloride."' 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.'47

The Plaintiffs also refer to Base Order 5100.1313 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

Id. at 12-13.

144

Id., Ex. 37.

145

See Doe. No. [62], Ex. 10.

146

j,Exs.9 and 11.

147

j, 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.""' The

Base Order also states that the Base Safety Manager "will direct safe disposition of

subject waste not salable or usable.""'

The Plaintiffs rely most extensively"' on the following provisions of the

BLJIV1EDs:

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. at4a(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], TT 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." 52

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."54

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. '55

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152

i4, § 5b.

153

§ 6b.

154

j, § 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 "trichioroethylene (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.'57

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.,

TT 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. '59

The court found that the manual in question made it an "objective" to protect

water sources in the disposal of hazardous materials.'60 Ultimately, the QSI 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."6' 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 ofjudgment that the discretionary function exception is designed

to shield.""'

The Plaintiffs are correct that the BUMEDs use mandatory language with

respect to the need to deliver clean drinking water. Significantly, however, the

'59

d. at951.

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

161

162

Iiat 952.

Id. at 953; see also Slappey v. U.S. Army Cops of Eng'rs, 571 F. App'x

855 (11th Cir. 2014); Snyder v. United States, 504 F. Supp. 2d 136 (S.D. Miss. 2007),

affid, 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. 161

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." 64

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. 16' 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.'66

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 Doe. 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 I, 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, 161 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. 16' Thus, the court determined

that there was discretion and choice in the manner in which the facility set up the

exercise equipment. 161

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."' But levels for benzene, TCE, and vinyl chloride

were not proposed until 1987, and PCBs not proposed until 1991.1 '

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

jJ25.

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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.'72 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.""' 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.

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172

See Doc. No. [62], Ex. 20, ¶ 5 (Hennet Decl.).

173

.See Doc. No. [70],at31-32.

Case 1:11-md-02218-TWT Document 197 Filed 12/05/16 Page 65 of 96

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.'

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.'75 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." 76 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.

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).

174

175

See Pub. L. No. 109-364, § 318, 120 Stat. 2083, 2143-2144 (Oct. 17,

176

See Pub. L.No. 110-181,318.

2006).

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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. '77 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.'79 On February 26, 1981, the report indicated that

"water highly contaminated with other chlorinated hydrocarbons (solvents)." `0 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."' 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. '82 The memos confirm

177

See Doe. No. [130J, Ex. E.

178

179

I, Ex. F.

180

Id., Ex. G.

181

I, Ex. H.

182

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that trichioroethylene (TCE) and tetrachioroethylene (PCE) were not regulated

substances although SNARLS existed for some of the substances. '83 The memos also

generally reflect the beginning efforts to identify the source of the contamination.' 14

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. 18' 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 Doe. No. [164], Ex. F.

LSI

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a notification registry.'87 It indicated that unregulated chemicals had been in the

water in the early 1980s and the Navy was attempting to assess the health impact.'88

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.

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

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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 Superfiind 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,'89 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.' 90

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.'91 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], at2l.

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.""' 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.'95 Even more specifically applicable to the facts here, the

193

671 F.3d 86 (1st Cir. 2012).

194

JL at 100 (quotation and citation omitted).

195

jj 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 alsoSlappey v. U.S. Army Cows 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."' 96

function analysis. S.,

[U.S.] Aviation Underwriters[, Inc.], 562 F.3d [1297],

1300 [(11 th 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 10 1-02 ("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

trichioroethylene 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 ICE and PCE in a water supply and variations in the

test results raised questions about the tests' validity.'99 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. ,211

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.

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 Doe. No. [164].

204

See Doe. Nos. [126] and [130].

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the Plaintiff claims: (1) "violation" of BUIVIED 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. ,116 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.3dat 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.""'

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."21° For

208

See Doc. No. [164], ¶J 173-78.

209

I,JJl79-83.

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."21' In the event, however, that the Plaintiffs here could still raise a

substantive due process claim, it must be "conscience shocking.""' 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. ,2" 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

Jh at 1304-05 (quotations and citations omitted).

214

I.at 1305.

215

Id. (citations omitted).

216

Id. at 1306.

Eff

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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. 515218 "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. ,,211 "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 "22°

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

(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.22' 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, g.gPersonnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279

(1979).

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.").

222

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Protection cases. 121 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, g2. 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)).

AO 72A

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224

See 528 U.S. at 564-65.

225

See 496 F.3d at 1203-07.

Case 1:11-md-02218-TW7 Document 197 Filed 12/05/16 Page 84 of 96

to dismiss on the basis of the discretionary function exception [62] and GRANTS the

Government's motion to dismiss [127].

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].

Pro Se Motions

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226

See Doc. No. [24], at 6.

227

Id. at7.

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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 .,,12' 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 .23' 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.23'

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

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231

See Doc. No. [86].

232

See Doc. No. [116].

Case 1:11-md-02218-TW7 Document 197 Filed 12/05/16 Page 87 of 96

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].

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].

EPJ

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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. ,21' 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.""' The Ninth Circuit,

236

See Doc. No. [24], ¶ 2.

237

See,

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 .,,21' 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

239

862 F.2d 201 (9th Cir. 1988).

at 204 (citation omitted).

240

781 F.3d at 1339; see also Parrott v. United States, 536 F.3d 629, 634

(7th Cir. 200 8) (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.24'

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 me

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