Petition for Writ of Certiorari — Carol V. Clendening, as Personal Representative of the Estate of Gary J. Clendening, Petitioner v. United States

No. ______

In the

Supreme Court of the United States

__________________

CAROL V. CLENDENING,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

NICHOLAS F. BAKER

Counsel of Record

NICK BAKER LAW LLC

320 North Meridian Street

Suite 801

Indianapolis, IN 46204

(317) 456-7889

nick@nickbakerlaw.com

Counsel for Petitioner

April 29, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

The questions presented are:

(1) Does Feres v. United States, 340 U.S. 135 (1950)

apply to an unwitting Judge Advocate General Officer’s

toxic exposure not related to his service.

(2) Whether the Federal Tort Claims Act’s

discretionary function exception 28 U.S.C 2680(a)

applies to the military’s failure to notify and warn

Camp Lejeune residents of their exposure to toxins

pursuant to standing law.

ii

PARTIES TO THE PROCEEDING

Carol V. Clendening, Plaintiff-Appellant in the

court below and Petitioner here, is an individual.

The United States of America is the Respondent

and Defendant-Appellee.

Because Petitioner is not a corporation, a corporate

disclosure statement is not required under Supreme

Court Rule 29.6.

iii

STATEMENT OF RELATED PROCEEDINGS

This case arises from and is related to the following

proceedings in the United State’s Court of Appeals for

the Fourth Circuit and the district court of the Eastern

District of North Carolina:

– Clendening v. U.S., No. 4:19-CV-00106-BR,

order issued June 19, 2020.

– Clendening v. U.S., 19 F.4th 421 (4th Cir. 2021),

opinion issued November 30, 2021.

There are no other proceedings in State or Federal

Court directly related to these proceedings under this

Court’s Rule 14(1)(b)(iii).

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3

A. Feres and its progeny . . . . . . . . . . . . . . . . . 3

B. The Environmental Catastrophe at Camp

Lejeune, North Carolina . . . . . . . . . . . . . . 7

C. Judge Advocate General Officer

Clendening’s Service and Death . . . . . . . 12

D. Proceedings Below . . . . . . . . . . . . . . . . . . 13

REASONS FOR GRANTING THE PETITION . . . 15

I.

There is nothing about Captain Clendening’s

toxic exposure that was “incident to service.”

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. The are no Feres factors or tests that

apply to Clendening’s claims . . . . . . . . . . 16

v

B. Cases where contamination and exposure

are incident to service . . . . . . . . . . . . . . . 23

II.

The discretionary function exception to the

FTCA does not excuse either the illegal

dumping at Camp Lejeune nor a campaign to

conceal and not warn those exposed. . . . . . . 25

III.

If Feres applies to Clendening’s claims, it

must be abandoned . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Fourth Circuit

(November 30, 2021) . . . . . . . . . . . App. 1

Appendix B Order in the United States District

Court for the Eastern District of North

Carolina Southern Division

(June 19, 2020) . . . . . . . . . . . . . . App. 29

Appendix C Judgment in the United States

District Court for the Eastern District

of North Carolina Southern Division

(June 19, 2020) . . . . . . . . . . . . . . App. 43

vi

TABLE OF AUTHORITIES

CASES

Aikens v. Ingram,

811 F.3d 643 (4th Cir. 2016). . . . . . . . . . . . . . . . 14

Air & Liquid Systems Corp. v. DeVries,

139 S. Ct. 986 (2019). . . . . . . . . . . . . . . . . . . . . . 31

Ashcroft v. Iqbal,

556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . . 28

Bartholomew v. Burger King Corp.,

21 F. Supp. 3d 1089 (D. Haw. 2014) . . . . . . . . . 20

Berkovitz v. United States,

486 U.S. 531 (U.S. 1988) . . . . . . . . . . . . . . . . . . 25

Brooks v. United States,

337 U.S. 49 (1949). . . . . . . . . . . . . . . . . . . . 3, 4, 21

Brown v. United States,

739 F.2d 362 (8th Cir. 1984). . . . . . . . . . . . . . . . 18

Costo v. United States,

248 F.3d 863 (9th Cir. 2001). . . . . . . . . . . 3, 32, 33

Daniel v. United States,

139 S. Ct. 1713 (2019). . . . . . . . . . . . . . . . . . 31, 32

Doe v. United States,

141 S. Ct. 1498 (2021) . . . . . . . . . . . . . . . 5, 32, 35

Elliott by and Through Elliott v. United States,

13 F.3d 1555 (11th Cir. 1994). . . . . . . . . . . . . . . 20

Estate of McAllister,

134 Cal. App. 349 (Cal. Ct. App. 1933) . . . . . . . 32

vii

Estate of McAllister,

942 F.2d 1473 (9th Cir. 1991). . . . . . . . . . . . . . . 33

Feres v. United States,

340 U.S. 135 (1950). . . . . . . . . . . . . . . . . . . passim

Hale v. United States,

416 F.2d 355 (6th Cir. 1969). . . . . . . . . . . . . . . . 34

Heilman v. United States,

731 F.2d 1104 (3d Cir. 1984) . . . . . . . . . . . . 32, 33

Hinkie v. United States,

715 F.2d 96 (3d Cir. 1983) . . . . . . . . . . . . . . . . . 32

In re Agent Orange Product Liability Litigation,

506 F. Supp. 762 (E.D.N.Y. 1980) . . . . . . . . . . . 23

In re Camp Lejeune N.C. Water Contamination

Litig., 263 F. Supp. 3rd 1318 (N.D. Ga. 2016). . . . 25

Indian Towing Co. v. United States,

350 U.S. 61 (1955). . . . . . . . . . . . . . . . . . . . . . 4, 26

Kelly v. United States,

512 F. Supp. 356 (E.D.Pa 1981) . . . . . . . . . . . . . 23

Larson v. Domestic Foreign Corp.,

337 U.S. 682 (1949). . . . . . . . . . . . . . . . . . . . . . . . 3

Laswell v. Brown,

683 F.2d 261 (8th Cir. 1982). . . . . . . . . . . . . . . . 23

Lombard v. United States,

690 F.2d 215 (D.C. Cir. 1982). . . . . . . . . . . . . . . 23

Lutz v. Sec. of Air Force,

944 F.2d 1477 (9th Cir. 1991). . . . . . . . . . . . . . . 20

viii

Major v. United States,

835 F.2d 641 (6th Cir. 1987), cert. denied,

487 U.S. 1218 (1988). . . . . . . . . . . . . . . . . . . . . . 19

Mass v. United States,

94 F.3d 291 (7th Cir. 1996). . . . . . . . . . . . . . . . . 23

Minns v. United States,

155 F.3d 445 (4th Cir. 1998). . . . . . . . . . . . . . . . 23

O’Neill v. United States,

140 F.3d 564 (3d Cir. 1998) . . . . . . . . . . . . . . . . 22

Ortiz v. United States,

No. 13-1500 (10th Cir. 2015) . . . . . . . . . . . . . . . 32

Parker v. United States,

611 F.2d 1007 (5th Cir. 1980). . . . . . . . . . . . . . . 17

Persons v. United States,

925 F.2d 292 (9th Cir. 1991). . . . . . . . . . . . . 32, 33

Ricks v. Nickels,

295 F.3d 1124 (10th Cir. 2002). . . . . . . . . . . . . . 18

Ritchie v. United States,

733 F.3d 871 (9th Cir. 2013). . . . . . . . . . . . . . . . 32

Schnurman v. United States,

490 F. Supp. 429 (E.D. Va. 1980) . . . . . . . . . . . . 23

Schoenfeld v. Quamme,

492 F.3d 1016 (9th Cir. 2007). . . . . . . . . . . . . . . 20

Stanley v. CIA,

639 F.2d 1146 (5th Cir. 1981). . . . . . . . . . . . . . . 24

ix

Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666 (1977). . . . . . . . . . . . . . . . . . . . . . . . 5

Taber v. Maine,

67 F.3d 1029 (2d Cir. 1995) . . . . . . . . . . . . . 32, 33

United States v. Brown,

348 U.S. 110 (1954). . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Johnson,

481 U.S. 681 (1987). . . . . . . . . . . . . 5, 6, 17, 19, 29

United States v. Muniz,

374 U.S. 150 (1963). . . . . . . . . . . . . . . . . . . . . . . 30

United States v. S.A. Empresa de Viacao Aerea

Rio Grandense (Varig Airlines),

467 U.S. 797 (1984). . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Shearer,

473 U.S. 52 (1985). . . . . . . . . . . . . . . . 5, 16, 17, 18

United States v. Stanley,

483 U.S. 669 (1987). . . . . . . . . . . . . . . . . . . . . 5, 24

Washington v. Dep’t of the Nary,

446 F. Supp. 3d 20 (E.D.N.C. 2020) . . . . . . . . . . 26

STATUTES

28 U.S.C. § 1254(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1346 et seq. . . . . . . . . . . . . . . . . . . . . . 2, 3

28 U.S.C. § 2671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2674 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2680(a). . . . . . . . . . . . . . . . . . . . . . i, 2, 25

x

28 U.S.C. § 2680(a)-(f) . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2680(h)-(n). . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2680(j) . . . . . . . . . . . . . . . . . . . . . 3, 19, 24

28 U.S.C. § 2680(k). . . . . . . . . . . . . . . . . . . . . . . 19, 24

John Warner, National Defense Authorization Act

for Fiscal Year 2007, Pub. L. No. 109-364,

§318(b)(1), 120 Stat. 2083 (2006) . . . . . . . . . . . . 27

National Defense Authorization Act for Fiscal Year

2008, Pub. L. No. 110-181, 122 Stat. 3 . . . . . . . 27

OTHER AUTHORITIES

Black’s Law Dictionary (7th ed. 1999). . . . . . . . . . . 19

Economic Impact Analysis for RIN 2900-A66,

Diseases Associated with Exposure to

Contaminants in the Water Supply at Camp

Lejeune, August 26, 2016. http://s3.amazonaws.

com/content.washingtonexaminer.biz/web-pro

ducers/VaestimatesDavis.pdf . . . . . . . . . . . . . . . 12

Feres: The “Double-edged Sword” Kaitlan Price,

Dickinson Law Review Vol. 125, Issue 3 . . . . . . . 4

Mike Magner, A Trust Betrayed 2014 . . . . . . . . . . . . 8

Robert O’Dowd, A Few Good Men, Too Many

Chemicals, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1

PETITION FOR WRIT OF CERTIORARI

This Court has not evaluated whether Feres v.

United States, 340 U.S. 135 (1950) applies to a Judge

Advocate General (“JAG”) Officer’s unknown toxic

exposure at Camp Lejeune, North Carolina. Feres was

adopted to interpret the Federal Tort Claims Act’s

(“FTCA”) narrow bar to service members’ claims that

arise during “combat related activities” and “times of

war.” It is not and never has been a blanket immunity

to service members’ tort claims. There is nothing about

Clendening’s service as a lawyer in training at Camp

Lejeune that was incident to or involved toxic exposure

in furtherance of a military mission or purpose. Feres

has never been so far extended to the basic need to

breathe air and drink water when the exposure serves

no military purpose.

The discretionary function exception to the Federal

Tort Claims Act has never been used to excuse illegal

conduct, most especially decades of illegal dumping and

ongoing fraudulent concealment of chemical and

nuclear waste at Camp Lejeune. Despite a law

ordering the military to notify former base residents of

their toxic exposure, the Fourth Circuit below held that

military brass had discretion to do nothing at all.

While many service members have paid the ultimate

sacrifice exposed to the world’s most noxious

substances in service, when they sign up to die for their

country, they do not sign up to be unknowingly exposed

to illegal dumping and a post-service coverup. If this

case is not the vehicle to move this Court to rein in

Feres, save God’s recruitment of those that save this

Court.

2

OPINIONS BELOW

The United States Court of Appeals for the Fourth

Circuit’s opinion is reported at 19 F.4th 421 and

reproduced at App.1. The district court for the Eastern

District of North Carolina’s unpublished order in 7:19CV-137-BR is reproduced at App.29.

JURISDICTION

The Fourth Circuit issued its opinion affirming the

District Court for the Eastern District of North

Carolina on November 30, 2021. The Chief Justice, on

February 23, 2022, extended the time to file any

certiorari petition to and until April 29, 2022. This

Court has jurisdiction under 28 U.S.C § 1254(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioner brought the underlying action under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 et

seq., which states “[T]he United States shall be liable,

. . . in the same manner and to the same extent as a

private individual under like circumstances, . . . .” 28

U.S.C. § 2674. App.5-6.

Respondent moved for dismissal under Federal Rule

of Civil Procedure 12(b)(1) for lack of jurisdiction,

arguing that Petitioners’ complaint, accepting the

allegation as true, is barred by the Feres doctrine.

Respondent also moved for dismissal under the FTCA’s

discretionary function immunity exception. 28 U.S.C

2680(a). App.6.

3

STATEMENT OF THE CASE

A. Feres and its progeny

Prior to 1946, the doctrine of sovereign immunity

reigned supreme in the United States under the notion

that “the king can do no wrong.” Larson v. Domestic

Foreign Corp., 337 U.S. 682, 695 (1949). Sovereign

immunity barred all private citizens’ civil tort lawsuits

against the government.

In 1946, Congress limited the federal government’s

sovereign immunity from suit by enacting the Federal

Tort Claims Act (“FTCA”). 28 U.S.C. § 1346. The FTCA

abolished the government’s immunity by giving citizens

the right to sue the government including its employees

in federal court for tort injuries. Costo v. United States,

248 F.3d 863, 869 (9th Cir. 2001) (Ferguson, J.,

dissenting).

The FTCA specifically defines an

“employee of the Government” to include members of

the U.S. military or naval forces and members of the

National Guard. 28 U.S.C. § 2671.

Congress set forth exceptions to the government’s

liability under the FTCA. See generally 28 U.S.C.

§ 2680(a)-(f), (h)-(n). Section 2680(j) prevents any tort

claim “arising out of the combatant activities of the

military or naval forces, or the Coast Guard, during

time of war.” Congress did not, however, bar service

members from suing the government.

In 1949, this Court heard its first case addressing

service members’ claims under the FTCA. In Brooks v.

United States, an army vehicle struck a civilian vehicle

while traveling at night. 337 U.S. 49 (1949). Three

men, two of whom were service members, occupied the

4

civilian vehicle. One service member died, and the

other two occupants were injured. The government

moved to dismiss plaintiffs’ suit under the FTCA

because of their status as members of the armed forces

during the accident. This Court ruled for the plaintiffs,

stating, “[We] are dealing with an accident which had

nothing to do with [plaintiffs’] army careers, injuries

not caused by their service except in the sense that all

human events depend upon what has already

transpired.”1 Id. at 52. The Court further observed

that the FTCA contained many exceptions, none of

which exclusively bar a plaintiff’s claim because of

military status. Id. at 53.

The next year, Feres v. United States evaluated the

death of an active-duty service member resulting from

a fire in an army barracks. 340 U.S. 135 (1950). The

Feres Court, while expressly not overruling Brooks,

denied any relief under the FTCA, concluding that the

government is not liable under the FTCA for injuries to

service members when their “injuries arise out of or are

in the course of activity incident to [military] service.”

Id. at 146. The Court identified two primary rationales2

supporting its decision. First, the Court declared it

1

Feres: The “Double-edged Sword” Kaitlan Price, Dickinson Law

Review Vol. 125, Issue 3.

2

The Court described another rationale, which it has since

abandoned: the absence of the parallel private liability required by

the FTCA. See Indian Towing Co. v. United States, 350 U.S. 61, 67

(1955) (“we would be attributing bizarre motives to Congress were

we to hold that it was predicating liability on such a completely

fortuitous circumstance — the presence or absence of identical

private activity.”).

5

would not intrude in the distinctively federal

relationship between members of the armed forces and

the government. Second, the Feres Court noted existing

legislation to compensate injured service members. Id.

at 143-44.

Since Feres was decided, this Court has referenced

it as a doctrine in less than a dozen cases. Most cases

involve the service member’s actual military activity

with a stated purpose from ejection system

malfunctions (Stencel Aero Eng’g Corp. v. United

States, 431 U.S. 666 (1977)), a coast guard pilot’s

helicopter crash (United States v. Johnson, 481 U.S.

681 (1987)), and an army study involving the secret

dosing of a service member (United States v. Stanley,

483 U.S. 669 (1987)).

Two cases including the most recent Feres matter

denying certiori, Doe v. United States, 141 S. Ct. 1498

(2021) and United States v. Shearer, 473 U.S. 52 (1985),

involve allegations of inadequate policies and

procedures in place or a failure of a supervisory officer

to protect service members from other service

member’s criminal conduct. See United States v.

Shearer, 473 U.S. 52 (1985). In Doe, a West Point cadet

was raped and sued the government claiming

inadequate housing and inadequate safety policies and

procedures. 141 S. Ct. 1498 In Shearer, the mother of

a service member sued the military alleging a failure to

protect her son from an assailant led to his death after

her son was killed off base by another service member.

United States v. Johnson is the most recent opinion

of this Court providing Feres guidance that is relevant

to the issues presented here. A 5-4 Court decision

6

reaffirmed the Feres holding that service members are

barred from bringing tort claims against the

government when injuries arise out of an activity

incident to service. 481 U.S. at 687-88. The Court

maintained that Feres must only apply to matter that

relate to service or have a service-related connection.

Id. at 684-85. There was no dispute that Johnson’s

death in the performance of a Coast Guard rescue

mission on the high seas was incident to service. Id. at

685-86. Johnson analyzed how compliance with the

military’s rules, demands, discipline, chain of

command, and teachings is vital to building an effective

and lasting armed force. Id. at 691. The Court, like in

Feres, evaluated whether a legislative compensatory

scheme was available to relieve service members. The

Johnson Court held that where the legislature has

provided benefits and compensation for service member

injuries, the legislature has spoken to their relief. Id.

at 689-90. Since then, the Court and lower courts have

applied a near-complete bar of military FTCA suits

under the Feres doctrine.

On December 20, 2019, Congress passed the

National Defense Authorization Act (“NDAA”), SB

1790, 133 Stat 1198, permitting for the first-time

service member’s medical negligence claims. On March

3, 2022, the United States House of Representatives

passed HR 3967 – The Honoring Our PACT Act which

would provide relief, treatment, and benefits to

Veterans that have suffered from toxic exposure during

their service including those exposed to burn pits in

Iraq and Afghanistan. Under the current version of the

bill, Section 706 would also allow Camp Lejeune

7

contamination claims to proceed on the merits. The bill

is currently before the United States Senate.

B. The Environmental Catastrophe

Camp Lejeune, North Carolina

at

The United States Navy and the United States

Marine Corps have owned and operated North

Carolina’s Camp Lejeune as a Marine Corp base since

1941. CA.App.6. As part of constructing Camp Lejeune,

the government built the Hadnot Point Fuel Farm,

which consisted of above ground and underground fuel

storage tanks with hundreds of thousands of gallons of

leaded and unleaded gasoline, kerosene, and diesel

fuel. Id.

Rather than pipe in water from local municipalities,

the government built its own water supply facilities,

including wells and water treatment plants throughout

Camp Lejeune. CA.App.14. The water supply facilities

collected water from deep-water wells which were

treated, tested, and approved by the government.

CA.App.16. The water was transported through pipes

to residents throughout the base. CA.App.8. The

Hadnot Point water supply well identified as HP-602

was about 1,200 feet northwest and downgradient of

the Hadnot Point Fuel Farm. CA.App.19.

The deep-water wells from which the base sourced

its water tapped into an underground aquifer heavily

contaminated with toxic and hazardous materials from

various sources, including the Hadnot Point Fuel Farm.

CA.App.9. Overpumping of the base’s water wells

sucked in fuel and contaminants that had leaked from

the fuel farm or that had been improperly disposed at

8

the landfill and the incinerator site and other

contaminants into the deep aquifer. CA.App.9. The

contaminated ground water leached toxic chemicals

into the walls of the water supply wells serving the

Hadnot Point water distribution system. Id. The

drinking water flowed from the wells into the Hadnot

Point Water Treatment Plant and, without being

decontaminated or remediated, could flow to residences

and businesses of military personnel and civilians

living and working. Id.

In 1980, the government discovered that the fuel

facilities’ tanks and pipelines were insufficiently

maintained and were deteriorating and that at least

two tanks had leaking valves. CA.App.20.

Recommendations were made to replace and install

new piping, new tank valves and concrete valves for all

storage tanks; and empty and clean the interiors of all

underground storage tanks and inspect them for leaks.3

The same year, a government contractor discovered

that the government had disposed of radioactive

strontium 90 (Sr-90) pellets and dead beagles just

below the surface of the ground near where service

members, including Clendening, lived and worked

while stationed on base.4 CA.App.9.

3

No one acted on these recommendations until 1989. CA.App.20.

Just as alarmingly, the concerns identified in the report were not

disclosed to any potential victims, including military personnel and

their dependents, or the public. CA.App.20.

4

See also Mike Magner A Trust Betrayed 2014; Robert O’Dowd A

Few Good Men, Too Many Chemicals, 2019.

9

On April 9, 1981, the government conducted a case

study to evaluate the toxicity of the radioactive

exposure to the inhabitants and guests of Camp

Lejeune. The analysis and report occurred before any

notice or shutdown of the contaminated water systems.

The report revealed elevated Sr-90, but the government

did nothing to ensure that former, current and future

personnel and civilians were not exposed to radioactive

material or, if exposed, were provided treatment.

CA.App.10.

Then, in 1984, tests performed by a Navy contractor

revealed benzene at 380 parts per million in a Hadnot

Point drinking well identified as HP-602. CA.App.21.

HP-602 was shut down in December 1984. Id. The

closure of HP-602 prompted a review of other wells on

base, several of which were shut down. Id. By

February 1985, operations at all recognized

contaminated supply wells within the Hadnot Point

Water Treatment Plant distribution network were

terminated because volatile organic compounds

(“VOC”) were discovered throughout late 1984 and

early 1985. CA.App.21.

A 1988 monitoring report described a 15-foot layer

of fuel floating on top of the water table a few feet

below the service of a fuel farm at the Hadnot Point

Industrial Area. The same report found evidence of

benzene in monitoring wells at levels as much as

29,000 parts per billion. This information was

concealed from potential victims, including military

personnel and dependents, or the public. Id.

Because of contamination findings, on November 4,

1989, Camp Lejeune was placed on the U.S.

10

Environmental Protection Agency’s (“EPA”) National

Priorities List (“NPL”). Id. By 1991, all groundwater

contaminant investigations and remediation activities

at Camp Lejeune were placed under the oversight of

the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”) and the

Resource Conservation and Recovery Act (“RCRA”)

Programs. CA.App.21-22. Two years later, a review of

environmental treatment options found that storage

tanks containing fuel, cleaning solvents and other

chemicals had been buried at sites across Camp

Lejeune for years. CA.App.22.

In 2007, retired Marine master sergeant, Jerry

Ensminger, discovered a 1981 document that described

a radioactive dump site at Camp Lejeune that did not

comply with federal law. CA.App.17. The waste

included SR-90, a known cause of cancer, particularly

leukemia. Master sergeant Ensminger’s nine-year-old

daughter, Janey, had died in 1985 of leukemia. It was

not until 2014 that the government acknowledged it

knew about the 1981 document, but the government

continued to refuse to remediate, notify or treat

potential victims, or take any other actions to address

its radioactive dump site. Id. The death of young Janey

Ensminger and the efforts of her father helped to

create H.R.1742 – the Janey Ensminger Act – which

established a presumption of service connection for

illnesses associated with contaminants in the water

supply at Camp Lejeune between the years 1957 and

1987.

In 2011, the government finally directed the Agency

for Toxic Substances & Disease Registry (ATDSR”) to

11

survey former Camp Lejeune employees’ health

conditions. CA.App.18. In 2014, the Center for Disease

Control reported that Marines stationed at Camp

Lejeune have a 68% higher risk of multiple myeloma.

CA.App.18. In 2012, the ATSDR was granted access to

a “secret” government database to continue its water

modeling reports, but most of these documents are still

being withheld from the public. CA.App.23.

Before 2012, the government publicly blamed a

privately owned dry cleaner, ABS One Hour Cleaners,

for the release of contaminants at Camp Lejeune.

CA.App.23. Not until December 2012 did the ATSDR

publish the conclusions of RCRA investigations of

leaking above ground storage tanks and underground

storage tanks, which occurred at approximately

seventy locations throughout the Hadnot Point study

area. CA.App.23. The 2012 ATSDR Report reveals that

water within the Hadnot Point Water Treatment Plant

service area was contaminated mostly with

trichloroethylene (“TCE”), and Perchloroethylene

(“PCE”) and refined petroleum products, such as

benzene, toluene, ethylbenzene, and xylenes (“BTEX”),

and that significant contamination occurred in former

Hadnot Point Fuel Farm and Building 1115.

CA.App.24. The refueling facility, Building 1115, had

seven underground tanks, installed as early as 1943

(and dug up fifty years later), that were about three

hundred feet from Hadnot Point Well 602. Maximum

benzene concentrations in samples taken from monitor

wells at the Hadnot Point Fuel Farm and Building

1115 reached 43,000 micrograms per liter. CA.App.24.

12

In 2016, the Department of Veteran Affairs (“VA”)

adopted regulations that eight serious diseases,

including Captain Gary Clendening’s adult leukemia,

were presumed to have been caused by exposure to

contaminants at Camp Lejeune. CA.App.18. To this

day, the government has not acknowledged nor taken

any remedial action to address the hazardous levels of

chemical weapons waste or radioactive material

wrongfully disposed at Camp Lejeune. CA.App.23.

That same year, the VA estimated that of the

862,468 Marines and Reservists exposed at Camp

Lejeune from 1953 until 1987, 378,125 will have died

by 2018.5

C. Judge Advocate General Officer

Clendening’s Service and Death

Petitioner Carol Clendening is the widow of

decedent Gary James Clendening, a retired Judge

Advocate General (“JAG”) officer with the United

States Marine Corps. CA.App.31. Gary Clendening was

respected for his hard work, quick thinking, and

excellent command of the rules. CA.App.32. After his

military service, he practiced law in his home state of

Indiana as a defense trial attorney joining the esteem

of the American College of Trial Lawyers. CA.App.3233.

5

Economic Impact Analysis for RIN 2900-A66, Diseases Associated

with Exposure to Contaminants in the Water Supply at Camp

Lejeune, August 26, 2016. http://s3.amazonaws.com/content.wash

ingtonexaminer.biz/web-producers/VAestimatesDavis.pdf

13

For nineteen months from May 1970 to December

1971, Clendening lived at Camp Lejeune in an area

served by the Hadnot Point water distribution system.

He had no idea that the water supplied to him for

drinking, cooking, and bathing was contaminated with

toxic chemicals, nor did he know that he was constantly

being exposed to radioactive waste, chemical weapon

waste, solvents, benzene, and other carcinogens

improperly disposed, buried, or spilled at Camp

Lejeune. CA.App.5.

In 2007, Clendening was diagnosed with

W a l d e nst rom m a crog l ob ul i nem i a , c h r o n i c

lymphoblastic lymphoma, and eventually, adult

leukemia. CA.App.17. After fighting and suffering for

years, Clendening died on November 16, 2016 never

notified or knowing what caused his cancer or

benefiting from a compensation plan. CA.App.6,31.

The government has since admitted through the

Department of Veteran Affairs that Clendening’s

exposure while he lived and worked at Camp Lejeune

caused his cancer and other illnesses. CA.App.17-18.

Never was Clendening’s service at Camp Lejeune

incident to any published chemical or radioactive

exposure survey, test, exercise, study or other military

program. Instead, he volunteered to be and was

succinctly a lawyer in the Marines.

D. Proceedings Below

In 2019, Gary’s widow, Carol Clendening sued the

United States of America, alleging fraudulent

concealment, willful and wanton negligence, fraudulent

publication of notice to the public, wrongful death due

to water contamination, and wrongful death due to

14

direct exposure. CA.App.14. The government moved to

dismiss under Federal Rule of Civil Procedure 12(b)(1)

for lack of subject matter jurisdiction, arguing that the

Feres doctrine barred Clendening’s claims. CA.App.37.

The district court granted the government’s motion

to dismiss all claims, finding that all but one of

Clendening’s claims involved injuries incident to

military service, and, thus, were barred by the Feres

doctrine. The failure-to-warn claim, according to the

district court, survived Feres but was barred by the

FTCA’s discretionary function exception clause.

App.41-42.

Clendening appealed the district court’s decision to

the Fourth Circuit. The Circuit, admitting that the

Feres doctrine test is “‘broad and amorphous’” (quoting

Aikens v. Ingram, 811 F.3d 643, 651 (4th Cir. 2016))

(internal citations omitted)) and observing both the

rapid expansion of the doctrine in recent years and

widespread criticism of the doctrine, the Fourth Circuit

concluded that, “[w]ith one exception, Plaintiff’s claims

fall squarely within Feres purview.” App.9. The court

continued, “[t]he exposure cited as the cause of

Clendening’s death occurred in the course of his day-today, active-duty service while on base at Camp

Lejeune. Clendening’s injuries thus ‘stem[med] from

the relationship between [Clendening] and [his] service

in the military.’ Moreover, the military’s provision of

water and accommodations to its troops is clearly

activity ‘incident to service.’” Id. (quoting Aikens, 811

F.3d at 651) (internal citations omitted). The court

observed that, despite the harshness of the doctrine, it

is “bound by it” unless the Supreme Court overrules its

15

earlier decision. App.16. The Fourth Circuit also

agreed with the district court that the FTCA’s

discretionary function exception barred Clendening’s

failure-to-warm claim. App.28.

REASONS FOR GRANTING THE PETITION

There was nothing about Captain Clendening’s toxic

exposure that relate to any military mission or the

purpose of his service. “Incident to service” cannot

simply be everything a service member endures while

under commission, but, instead, it must have some

relation to his service in the military. Breathing air

and drinking water are not incident to service, they are

the most basic incidences to sustaining life. This case

provides the Court an opportunity to clarify the

“incident to service” test and rein in several court’s

blanket application of governmental immunity.

Granting certiorari would allow this Court to provide

a logical, fair, and uniform framework, curing the ills

of Feres and protecting our service members without

unduly disrupting the maintenance of military

discipline or “second-guessing” sensitive military

decisions. Permitting service member claims that have

no relation to any military benefit or any soldier’s

reasonable expectation of their commitment will only

protect the future recruitment of the military and this

Court’s ultimate authority to address an ongoing

injustice.

If the Court finds Feres applies here, the doctrine

logically cannot stand and must be abrogated. Such a

result would relinquish any Article III review of the

military and threaten future military recruitment. The

Feres Court expressly recognized there are exceptions

16

to barring all service member tort claims against the

government.

I.

There

is

nothing

about

Captain

Clendening’s toxic exposure that was

“incident to service.”

Much of the criticism of Feres stems from the lack of

a clear definition of what exactly constitutes “incident

to military service.”

Many lower courts have

improperly applied Feres as a blanket bar of all service

member FTCA suits, not just those injuries incurred

“incident to military service.”

A. The are no Feres factors or tests that

apply to Clendening’s claims.

Since its inception, Feres has been justified by

several factors and tests to determine whether the

injury was “incident to service” and its application is

appropriate. From chain-of-command, the distinctly

federal nature of the claims, to companion

compensatory legislative schemes, there is not one

relevant factor or test that would justify disqualifying

Clendening’s claims. In all cases invoking Feres, this

Court has made clear that, “[t]he Feres doctrine cannot

be reduced to a few bright-line rules; each case must be

examined in light of the statute as it has been

construed in Feres and subsequent cases.” Shearer,

473 U.S. at 57.

The three premises underlying Feres are: (1) that

Congress must not have intended state tort law to

govern the “distinctively federal” relationship between

the government and military members; (2) that

Congress must not have intended to provide FTCA

17

claims to service members who have received or will

receive veterans’ benefits as compensation; and

(3) “[t]he peculiar and special relationship of the soldier

to his superiors, [and] the effects of the maintenance of

such suits on discipline[.]” Johnson, 481 U.S. 688-691;

Feres, 340 U.S. at 140-43; United States v. Brown, 348

U.S. 110, 112 (1954).

The Circuits have adopted other tests and factors to

determine whether Feres is applicable. In Parker v.

United States, 611 F.2d 1007 (5th Cir. 1980), the Fifth

Circuit put forth a three-part test. The court rejected

the “active duty” or “but for” test,’ and concluded that

“[m]ore is needed for the activity to be incident to

military service.” Id. at 1011. This third prong

examined the plaintiff’s activities at the time of the

injury, with particular focus on the closeness of the

activity’s relationship to military service or mission. Id.

at 1013-15.

Prior to Johnson, this Court in Shearer further

examined the impact on chain of command and the

Court’s effort not to interfere with military decision

making holding the relevant inquiry in determining

Feres’s applicability to be “whether the suit requires

the civilian court to second-guess military decisions,

and whether the suit might impair essential military

discipline,” rather than the location of the incident.

473 U.S. at 57, 105. In Shearer, decedent was an offduty Army private who was murdered by another

serviceman recently released from prison while away

from the base. The plaintiff sued, claiming that the

Army’s negligence led to her son’s death. Id. In

holding that Feres barred the lawsuit, the Court

18

reasoned that allowing such an action would lead to too

much judicial involvement in military decision-making,

since commanding officers would likely be compelled to

testify about military rules, policies, and discipline. Id.

at 58. The Court focused on how it did not want to

encroach on negligent orders given or actions in the

course of military duty.

In Brown v. United States, 739 F.2d 362 (8th Cir.

1984), the Eighth Circuit used a two-part test that

considered all the factors identified in Shearer, but

placed substantially greater weight on the effect of a

service member’s suit on military discipline. The court

noted that “the preservation of military discipline is at

the heart of the Feres doctrine.” Id. at 368. The Eighth

Circuit held that a service member’s lawsuit arising

from his witnessing of a “mock lynching” on a military

base did not invoke Feres.

Without an ad hoc approach to service member’s

cases and an exception to Feres here, this Court will

have tacitly accepted a complete bar to service

member’s tort claims. That is exactly the opposite of

what this Court pronounced in Shearer. Ignoring the

ad hoc approach to Feres, the Tenth Circuit held: “[a]s

a result of the broad application of the incident to

service test, the Feres doctrine has been applied

consistently to bar all suits on behalf of service

members against the Government based upon servicerelated injuries.” Ricks v. Nickels, 295 F.3d 1124, 1128

(10th Cir. 2002) (emphasis in original). The Sixth

Circuit has also commented on the expansion of the

doctrine: “in recent years the [Supreme] Court has

embarked on a course dedicated to broadening the

19

Feres doctrine to encompass, at a minimum, all injuries

suffered by military personnel that are even remotely

related to the individual’s status as a member of the

military[.]” Major v. United States, 835 F.2d 641, 644

(6th Cir. 1987), cert. denied, 487 U.S. 1218, 108 (1988)

(emphasis in original).

The “incident to service” test has slowly consumed

claims never intended by Congress to be barred.

Carefully crafted exceptions in FTCA account for the

specific problems that may arise in allowing military

members to sue the government. The FTCA bars

liability for combatant activities of the military in a

time of war. 28 U.S.C. § 2680(j). It also bars liability

for a cause of action arising in a foreign country. 28

U.S.C. § 2680(k)

The FTCA does not feature the

phrase “incident to service” anywhere in its text, nor

can it be said that the Feres opinion provides a

practical methodology for determining whether an

activity or injury is “incident to service.” Thus, this

Court can now provide a narrowed test for what

qualifies as “incident to service.”

“Incident” as an adjective is defined as “[d]ependent

upon, subordinate to, arising out of, or otherwise

connected with (something else, usl. of greater

importance.”. Black’s Law Dictionary 765 (7th ed.

1999). The Circuits have recognized that “incident to

service” is something more than simply being in the

military.

Since this Court’s decision in Johnson, lower courts

have continued to find exceptions to Feres. The cases

present facts, like those here, that highlight injuries so

far removed from military command and any military

20

mission. In Lutz v. Sec. of Air Force, 944 F.2d 1477 (9th

Cir. 1991), the Ninth Circuit held that the Feres

doctrine did not bar a military officer’s suit against

subordinates who broke into her office, stole sensitive

personal correspondence, and then distributed it in an

effort to damage her reputation, declaring that these

actions are “not ‘incident to service.’” Id. at 1488. In so

holding, the Court recognized that “not every action by

one member of the armed services against another

implicates military decision making, relates to the

military mission, or is incident to service.” Id. at 1484.

In an analogous case – Elliott by and Through

Elliott v. United States, 13 F.3d 1555 (11th Cir. 1994)

– the Eleventh Circuit held that the plaintiff’s claim

against the government for its alleged “maintenance of

on-base housing, which resulted in the carbon

monoxide poisoning of the service man on leave and his

wife, was not barred by Feres, in part because

“[p]roviding and maintaining single-family housing for

military personnel does not involve the federal

judiciary in sensitive military affairs” or questioning of

military orders. In Schoenfeld v. Quamme, 492 F.3d

1016 (9th Cir. 2007), the Ninth Circuit held that Feres

does not bar the claim of a service man who was

injured when his car crashed into an unrepaired

guardrail on his military base. The court noted that

“the neglected damage to the guardrail in this case

could just as easily have existed on a non-military

road” and also recognized “[t]here was nothing

distinctly military about the earlier car crash that

created it, nor about the dangerous condition itself.”).

And finally, in Bartholomew v. Burger King Corp., 21

F. Supp. 3d 1089, 1100 (D. Haw. 2014), a service

21

member sued an Army-owned Burger King franchise

after he bit into a burger containing metal pieces. The

court held that Feres does not apply because “eating a

Burger King Triple Whopper (equally available to the

military or general public) while at home on a sick day

simply does not implicate military command or

discipline.” Id.

Clendening, unbeknownst to him, sustained his

injury while he was simply breathing air, drinking

water, and generally existing in Camp Lejeune for

nineteen months to complete Officer and JAG training.

Nothing about Clendening’s service or mission as a

JAG officer in the Marines involved toxic exposure.

Clendening undisputedly was not engaged in

radioactive, chemical, or weapon’s testing. His injury

was not the result of military training or combat, nor

any military study or directive. He was harmed by no

mechanism other than his daily consumption of water

and air in the place where he bathed, ate, drank, and

slept. Clendening did these things just as does any

other human, including civilians, and other off-duty

soldiers. See Brooks, 337 U.S. at 57 (an “injur[y] not

caused by [his] service except in the sense that all

human events depend upon what has already

transpired.”).

Concerns about military discipline and order are not

implicated in this case—there is simply no connection

between Clendening’s unknowing constant and

continuous exposure and the decisional or disciplinary

interests protected by the Feres doctrine. The military,

through the dismissal of all Camp Lejeune related

complaints and the cover-up of what toxins exist,

22

leaves the decisional paradigm an ongoing mystery.

The government has failed here to isolate what decision

or tort it seeks to excuse.

The Fourth Circuit’s application of the Feres

doctrine to bar Petitioner’s claims sets a dangerous

precedent that service members who are exposed to

toxic and radioactive waste outside the scope of their

active-duty service will have no chance of recourse.

More generally, an interpretation that bars any service

member’s lawsuit against the government does not

compute with the express language of the FTCA. If

either this Court or Congress had intended such a

result, they could have issued such a wholesale bar.

“Where a plaintiff has engaged in an activity of a

civilian nature, the ‘incident to service’ test is not

satisfied and the Feres bar has not been applied.”

O’Neill v. United States, 140 F.3d 564, 565 (3d Cir.

1998) (Becker, CJ, dissenting). The main policy

justification of the Feres doctrine is a concern about

exposing the military’s discipline and command

decisions to judicial second-guessing. This Court can

provide a framework for determining which injuries

occurred “incident to service” which neither bars all

claims across the board nor, unduly subjects the

military’s sensitive decisions and disciplinary structure

to judicial second-guessing.

It is undisputed that Clendening’s mission at Camp

Lejeune did not ever involve exposure to radioactive

and chemical waste. At the very least, given the

inconsistent analyses applied by Circuits and lower

courts and the failure of the doctrine to protect even

those claims that cannot reasonably interfere with the

23

military order and discipline, the definition of what is

“incident to service” is ripe for review and clarification

by this Court.

B. Cases where contamination

exposure are incident to service.

and

Distinct from Clendening’s service, sometimes

soldiers are exposed or contaminated while in service

undeniably incident to a military purpose and

objective. Sometimes, those soldiers join the military

not ever excepting to encounter the toxins, but they

still must carry out orders to achieve a mission. Under

those circumstances, Feres remains a logical bar to a

service member’s claim. See Minns v. United States,

155 F.3d 445, 448 (4th Cir. 1998) (service members

administered experimental inoculations in anticipation

of chemical warfare in Desert Storm); Mass v. United

States, 94 F3d 291, 295 (7th Cir. 1996) (service member

participated in the cleanup of a “broken arrow” or

downed nuclear armed aircraft); Laswell v. Brown, 683

F.2d 261, 264 (8th Cir. 1982) (service member assisting

with low-level ionizing radiation during nuclear

weapons test); Lombard v. United States, 690 F.2d 215

(D.C. Cir. 1982) (service member worked on

“Manhattan Project”); Kelly v. United States, 512 F.

Supp. 356 (E.D.Pa 1981) (service member exposed to

thermonuclear radiation during military tests in south

pacific); Schnurman v. United States, 490 F. Supp. 429

(E.D. Va. 1980) (service member exposed to mustard

gas while testing anti-chemical warfare clothing); In re

Agent Orange Product Liability Litigation, 506 F. Supp.

762 (E.D.N.Y. 1980) (service members exposed in

combat and training).

24

Stanley v. CIA, 639 F.2d 1146 (5th Cir. 1981), is the

only case with allegations that the government

specifically withheld from the service member the

extent of his exposure. 483 U.S. 669 (1987). Stanley,

however, at least involved an actual governmental

program to which the service member volunteered. Id.

In Stanley, the government secretly administered

lysergic acid diethylamide (“LSD”) that caused the

service member to suffer hallucinations, incoherence,

and memory loss. Id. at 671. The Fifth Circuit applied

the Feres doctrine finding the service members

exposure was “incident to service.” 639 F.2d 1146.

Ostensibly, any burn pit claims from Iraq and

Afghanistan would also be barred because the soldiers

were exposed “incident to service.” Their injuries

certainly are the product of “combat activities . . .

during a time of war” that occurred “in a foreign

country.” 28 U.S.C §2680(j), (k). Congress’s effort in

H.R. 3976 – Honoring Our PACT Act to address these

exposed veteran’s is required because they are

otherwise barred by the FTCA exception. Clendening’s

claims, however, do not relate to any military activity

and are not incident to service. While Congress’s

efforts for the victims of Camp Lejeune are promising

and appreciated, this Court does not need legislative

action to permit Clendening’s claims to proceed.

If the government wishes to acknowledge that it

intentionally poisoned Marines and civilians at Camp

Lejeune to study the effects or analyze the

contamination, it could then establish that

Clendening’s exposure was incident to service. Because

25

that is not the case, the government is without

immunity.

II.

The discretionary function exception to the

FTCA does not excuse either the illegal

dumping at Camp Lejeune nor a campaign

to conceal and not warn those exposed.

While the parties do not dispute Clendening’s afterservice failure-to-warn claims survive Feres analysis,

the Fourth Circuit and the district court applied the

FTCA discretionary function exception 28 U.S.C.

2680(a)6 to bar Clendening’s failure to warn claims.7

The denial of Clendening’s failure-to-warn claims are

inconsistent with this Court discretionary function

exception analysis.

Berkovitz v. United States, 486 U.S. 531 (U.S. 1988)

is the seminal case to guide whether discretionary

6

28 U.S.C. 2680(a) provides:

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.

7

A lower court has applied the discretionary function exception to

other Camp LeJeune water contamination claims prior to any

Feres analysis holding the supply of water on base constitutes an

act or omission of the government. In re Camp Lejeune N.C. Water

Contamination Litig., 263 F. Supp. 3rd 1318 (N.D. Ga. 2016). The

government does not make the argument here.

26

function exception is applicable. The discretionary

function does not apply to when a specific rule,

regulation or policy governs the action and the

complaint alleges a failure of the government to comply

with the rule. Id. at 536. Thus, if the government or

its employee are alleged to have violated a guiding rule,

the discretionary function exception does not apply. Id.

Even if a rule has not been violated, the second inquiry

is whether the discretionary decision is one for which

the FTCA intended to excuse. Id. at 537.

The Fourth Circuit undisputedly only applied the

FTCA’s discretionary function immunity exception to

Petitioner’s failure-to-warn claim, not her other claims.

Like the Feres doctrine, the discretionary function

exception seeks to “prevent judicial ‘second-guessing’ of

legislative and administrative decisions grounded in

social, economic, and political policy through the

medium of an action in tort.” United States v. S.A.

Empresa de Viacao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797, (1984). But unlike the Feres

doctrine, the discretionary function policy is balanced

against the “broad and just purpose” of the FTCA to

compensate victims of negligence in the conduct of

governmental activities. Indian Towing Co. v. United

States, 350 U.S. 61, 67 (1955).

Clendening’s failure-to-warn claims are not excused

by military discretion because withholding notification

to former residents entirely is not a decision for which

discretion function exception was designed to shield.

See Washington v. Dep’t of the Nary, 446 F. Supp. 3d

20, 28 (E.D.N.C. 2020). The Fourth Circuit here

acknowledged that “the Commandant of the Marine

27

Corps shall take appropriate actions . . . to notify

former Camp Lejeune residents and employees who

may have been exposed to drinking water . . .” App.23

quoting John Warner National Defense Authorization

Act for Fiscal Year 2007, Pub. L. No. 109-364,

§318(b)(1), 120 Stat. 2083 2143-44 (2006)(emphasis

added). It further noted, that “the Secretary of the

Navy shall make reasonable efforts to identify and

notify directly individuals who were served by the

system. . . .” App.23 quoting National Defense

Authorization Act for Fiscal Year 2008, Pub. L. No.

110-181, §315(b), 122 Stat. 3, 56-57 (emphasis added).

If this Court were to accept the lower court’s failure-towarn claim analysis, there would remain no room to

withhold the application of the discretionary function

exception. The Fourth Circuit admitted that the

military received direct orders by law to notify former

residents of their toxic exposure. Ironically, it then

found there remains discretion to withhold notifying

veterans, or to do nothing at all. Essentially, the

Fourth Circuit held the military had discretion to

disobey an order.

The Defendant did not argue, and the lower courts

did not conclude, that the discretionary function

exception bars any of Petitioner’s claims other than her

failure-to-warn claim and, therefore, the lower courts’

application of this exception, albeit wrong, presents no

vehicle problem for this Court’s consideration of

Petitioner’s arguments against the Feres doctrine.

Clendening has alleged the government failed to

follow standing law throughout this action from the

complaint’s allegations of the wrongful and illegal

28

disposal of chemical and nuclear waste, to briefing and

argument at Eastern District of North Carolina and the

Fourth Circuit that the government has failed to follow

any of its regulations or orders to notify soldiers of

known toxic and nuclear exposure. While the Fourth

Circuit held some additional regulations cited at oral

argument to be late (App.20 fn.9.), without any

discovery and the military’s continued refusal to

disclose what happened at Camp Lejeune, the

government has not permitted the discovery of facts to

investigate what specific rules and regulations it

should have followed.

This case is the ideal vehicle to rein in the reach of

both the discretionary function exception and Feres.

Feres as applied to Petitioner’s claims was briefed and

decided at every stage of the proceedings below.

Because the case was decided on a motion to dismiss,

the issue is cleanly presented. The allegations

contained in Clendening’s complaint at this stage are

to be accepted as true. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). There is no challenge to the Petitioner’s

standing nor any other potential justiciability defect,

nor is there any dispute that Petitioner preserved her

arguments for appellate review.

Hearing this case would permit the Court to address

the question in a common factual context— service

members unwittingly exposed to contaminants in the

places where they live and work not at all related to

their service or mission – which is certain to arise

again. Applying the Feres doctrine to bar cases like

these, if not addressed now, will continue to fester each

29

time a case arises questioning adherence to toxic and

nuclear protocol.

Service members knowingly accept certain risks

when entering the military. This Court’s intervention

into only those cases involving decades of wrongdoing

by the military must be available for whom else will

hold it accountable. Accounting the military for its

negligence or intentional wrongdoing not related to its

military objectives will not undermine the chain-ofcommand, it will not interfere with military discipline,

and it will not subject the military to judicial secondguessing. The doctrine must be narrowed to apply to

only those circumstances that are incident or related to

service.

III.

If Feres applies to Clendening’s claims, it

must be abandoned.

Since its origin, the Feres doctrine has been the

subject of fierce criticism. In United States v. Johnson,

Justice Scalia for the dissent assailed the Feres

doctrine as a creature not of legislative command or

logical interpretation stating “Feres was wrongly

decided and heartily deserves the ‘widespread, almost

universal criticism’ it has received.” 481 U.S. at 700.

Justice Scalia addressed the three primary Feres

factors considered by the majority dismantling each

with their logical fallacy and lack of legislative written

or historical support. Id.

Firstly, Justice Scalia scoffed at the notion that

federal courts cannot apply state tort law to claims

with proof that the Court currently allow such practice

in federal prisoner suits against the government.

30

United States v. Muniz, 374 U.S. 150 (1963). Secondly,

he focused on statutory compensation schemes that

provide some relief to certain injured service members,

that relief can be terminated if a service member does

not fit the qualifications of the statute. He challenged

the majority’s contradictory rationale of disallowing

dual recovery, pointing out the Court’s history of

allowing dual recovery under both the Veterans’

Benefits Act and the FTCA in the past. Id. at 697.

Justice Scalia noted that the FTCA only narrowly

exempted the government from liability for “any claim

arising out of the combatant activities of the military or

naval forces, or the Coast Guard, during time of war”

(emphasis in original). Id. at 693.

Next, Justice Scalia addressed the majority’s

rationale of “protecting military discipline” writing:

“[t]o the extent that reading the FTCA as it is written

will require civilian courts to examine military decision

making and thus influence military discipline, it is

outlandish to consider that result ‘outlandish’” Id. at

700. He continued, “[i]f [plaintiff’s] helicopter had

crashed into a civilian’s home, the homeowner could

have brought an FTCA suit that would have invaded

the sanctity of military decisionmaking no less than

[plaintiff’s].” Id.

Finally, Justice Scalia reflected on the moral

questionability of the doctrine, observing with

Johnson’s death that had it occurred while he flew a

commercial, civilian plane, his family members could

have challenged military decision making and

recovered for losing their father and husband.

Because, however, Johnson was not a civilian or a

31

federal prisoner but instead devoted his life to serving

his country in the armed forces, he was without

recourse. Justice Scalia wrote that the Feres Court had

“no justification . . . to read exemptions into the [FTCA]

beyond those provided by Congress. If the [FTCA] is to

be altered, that is a function for the same body that

adopted it.” Id. Highlighting the combatant activities

exception of Section 2680(j), Justice Scalia observed

“that Congress specifically considered, and provided

what it thought needful for, the special requirements of

the military,” such that “[t]here was no proper basis

for” the Feres Court “to supplement—i.e., revise—that

congressional disposition.” Id.

In Daniel v. United States, 139 S. Ct. 1713 (2019),

the Court declined to hear the plaintiff’s argument for

overturning Feres. Justice Thomas, dissenting from

the denial of review, discussed another recent

case—Air & Liquid Systems Corp. v. DeVries, 139 S.

Ct. 986 (2019)—in which two veterans developed

cancer from asbestos exposure caused by the Navy’s

negligence. The manufacturer undisputedly delivered

the equipment to the government without asbestos; the

Navy added the asbestos to the equipment after

delivery. Because the service members believed Feres

a bar, they sued the manufacturers instead. “[T]he

Supreme Court then twisted traditional tort principals

to afford [plaintiffs] the possibility of relief” by allowing

them to sue a party not even remotely responsible for

the injury, creating both a legal fiction and an unfair

result. Justice Thomas wrote that “denial of relief to

military personnel and distortions of other areas of law

to compensate—will continue to ripple through our

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jurisprudence as long as the court refuses to reconsider

Feres.” Daniel, 139 S. Ct. at 1714.

Most recently, Justice Thomas wrote in Doe v.

United States, 141 S. Ct. 1498, 1499 (2021), it is critical

for this Court to “clarify the scope of the immunity we

have created. Without any statutory text to serve as a

guide, lower courts are understandably confused about

what counts as an injury ‘incident’ to military service.”

Justice Thomas noted that the FTCA renders the

federal government liable to members of the military

subject only to a “single military exception” involving

“combatant activities.” Id. Justice Thomas declared

that the 70-year-old Feres precedent is “demonstrably

wrong. . . .” Id.

Like Justices Scalia and Thomas, lower courts have

been unusually unequivocal and enthusiastic in their

criticisms of the doctrine. See, e.g., Estate of McAllister,

134 Cal. App. 349 (Cal. Ct. App. 1933); Persons v.

United States, 925 F.2d 292, 295 (9th Cir. 1991); Taber

v. Maine, 67 F.3d 1029 (2d Cir. 1995); Costo v. U.S.,

248 F.3d 863 (9th Cir. 2001); Ortiz v. United States, No.

13-1500 (10th Cir. 2015); Ritchie v. United States, 733

F.3d 871 (9th Cir. 2013). For example, in Hinkie v.

United States, 715 F.2d 96, 97 (3d Cir. 1983), after

affirming the district court’s dismissal of the plaintiffs’

claims pursuant to Feres, wrote, “[w]e are forced once

again to decide a case where we sense the injustice of

the result but where nevertheless we have no legal

authority, as an intermediate appellate court, to decide

the case differently.”

A year later, in Heilman v. United States, the Third

Circuit remarked on Feres’s “often harsh results” and

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the expansion of the doctrine to a nearly complete bar

of any negligence claim brought by a veteran. 731 F.2d

1104, 1112-13 (3d Cir. 1984). The court also expressed

concern that one of Feres’s justifications—the presence

of an existing compensation scheme for injured service

people—seems to have “broken down,” causing injured

parties to more frequently seek relief in the courts. Id.

at 1112. The court wrote “if we are to fulfill the duty

described by Lincoln and inscribed on the Veterans’

Administration building of ‘car[ing] for those who have

borne the battle,’ a system must be developed by which

those who have suffered for their country can be

compensated.” Id. at 1113.

In Taber v. Maine, the Fifth Circuit wrote that

Feres’s jurisprudence constituted “a singular tangle of

seemingly inconsistent rulings” that has “lurched

toward incoherence.” 67 F.3d at 1031. The court found

discerning the doctrine’s contours to be nearly

impossible. Taber declared, “[w]e would be less than

candid if we did not admit that the Feres doctrine has

gone off in so many different directions that it is

difficult to know precisely what the doctrine means

today.” Id. The Ninth Circuit wrote in Estate of

McAllister, “we follow a long tradition of reluctantly

acknowledging the enormous breadth of a troubled

doctrine” 942 F.2d 1473, 1480 (9th Cir. 1991) and in

Persons v. United States, 925 F.2d 292, 295 (9th Cir.

1991) that “the notion of ‘incident to service’ is a

repository of ambiguity[.]” And, in Costo v. United

States, 248 F.3d 863, 869 (9th Cir. 2001), it wrote:

we apply the Feres doctrine here without relish.

Nor are we the first to reluctantly reach such a

34

conclusion under the doctrine. Rather, in

determining this suit to be barred, we join the

many panels of this Court that have criticized

the inequitable extension of this doctrine to a

range of situations that seem far removed from

the doctrine’s original purposes.

The Sixth Circuit Court of Appeals, in Hale v.

United States, 416 F.2d 355, 358 (6th Cir. 1969),

criticized Feres’s “incident to service” test as “so lacking

in precision that the mere fact that the plaintiff was in

military service at the time of the accident can provide

a logical basis for the government’s arguing for

exclusion of the person concerned on a post hoc, ergo

propter hoc basis.”

If the Court finds Clendening’s claims are barred by

the Feres doctrine, then it has outgrown any logical or

predictable legal model for future cases. The doctrine

is not a statutory restriction on the right-to-sue, but a

court-imposed one. Article I, section 8, clause 14 of the

Constitution gives Congress the power to govern the

armed forces, but Feres conflicts with the express

language of the FTCA, its rationales are shaky, and it

sends a clear message to those already serving or may

enlist. Consider potential recruits learning there is no

recourse for family, friend, or community members that

were wrongfully killed at Camp Lejeune. They can

weigh joining to get their G.I. bill, serve their country,

all for the potential cost of dying a painful and tragic

death twenty years early for no purpose other than to

protect the military’s creation of what likely will be

America’s largest environmental catastrophe in its

history.

35

The Supreme Court has overturned two-hundred

and thirty-four of its own decisions. If this Court

cannot rein in Feres’s reach here, then “the better

answer is to bid it farewell.” Doe, 141 S. Ct. at 1499

(Thomas, J. dissenting). Given the ease with which its

critics demolish the rationale on which the Feres rests,

given how it has been used against unwitting military

members, and given the threat it poses to our

government’s ability to recruit service members, this

Court should abandon the Feres doctrine.

CONCLUSION

For all these reasons, Petitioner respectfully

requests that the Supreme Court grant the petition.

Respectfully submitted,

NICHOLAS F. BAKER

Counsel of Record

NICK BAKER LAW LLC

320 North Meridian Street

Suite 801

Indianapolis, IN 46204

(317) 456-7889

nick@nickbakerlaw.com

Counsel for Petitioner