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

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

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

App. 1

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-1878

[Filed: November 30, 2021]

__________________________________________

CAROL V. CLENDENING, as Personal

)

Representative of the Estate of

)

Gary J. Clendening,

)

)

Plaintiff - Appellant,

)

)

v.

)

)

UNITED STATES OF AMERICA,

)

)

Defendant - Appellee.

)

__________________________________________)

Appeal from the United States District Court for the

Eastern District of North Carolina, at Wilmington. W.

Earl Britt, Senior District Judge. (7:19-cv-00137-BR)

Argued: September 21, 2021

Decided: November 30, 2021

Before AGEE and WYNN, Circuit Judges, and Frank

W. VOLK, United States District Judge for the

App. 2

Southern District of West Virginia, sitting by

designation.

Affirmed by published opinion. Judge Wynn wrote the

opinion, in which Judge Agee and Judge Volk joined.

ARGUED: Nicholas Frederick Baker, NICK BAKER

LAW LLC, Indianapolis, Indiana, for Appellant. Daniel

Tenny, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. ON BRIEF:

Jeffrey Bossert Clark, Acting Assistant Attorney

General, Mark B. Stern, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington,

D.C.; Robert J. Higdon, Jr., United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY,

Raleigh, North Carolina, for Appellee.

WYNN, Circuit Judge:

In 2019, Carol V. Clendening (“Plaintiff”) filed suit

against the United States for her husband’s wrongful

death allegedly caused by his exposure to contaminated

water and environmental toxins while stationed at the

Marine Corps Base Camp Lejeune in Jacksonville,

North Carolina. Her complaint also asserted claims

against the United States for its subsequent fraudulent

concealment and failure to warn relevant personnel of

the severity, scope, and impact of said exposure.

The district court dismissed all claims for lack of

subject-matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). Because we find that Plaintiff’s

claims are barred under the Federal Torts Claims Act,

we affirm the district court’s dismissal.

App. 3

I.

The following facts are taken from Plaintiff’s

complaint. On November 16, 2016, Gary Clendening

(“Clendening”) lost his years-long battle against adult

leukemia, Waldenstrom macroglobulinemia, and

chronic lymphoblastic lymphoma. His widow, Plaintiff,

claims her husband’s death resulted from his constant

exposure, while stationed on active military duty at

Camp Lejeune, to contaminated water and “radioactive

waste, chemical weapon waste, solvents, benzene, and

other carcinogens that were improperly disposed,

buried or spilled at” the base. J.A. 5. 1

From May 1970 to December 1971, Clendening

resided at Camp Lejeune while serving as a United

States Marine Officer in the Judge Advocate Division

of the Marine Corps. Clendening lived in the Hadnot

Point area of the base, located near the Hadnot Point

Fuel Farm, a former incinerator and landfill. At some

point in time, the Hadnot Point Fuel Farm tanks began

to leak, contaminating the water supply with “fuel

products” and other “hazardous materials.” J.A. 9, 20.

By 1980, the Government was aware of the leakage but

issued no warnings regarding the resulting potential

health or safety effects.

That same year, a contractor discovered “radioactive

Strontium 90 (Sr-90) pellets and dead beagles” buried

“just below the surface of the ground” near where

Clendening was stationed. J.A. 9–10. Subsequent

analysis conducted in 1981 found elevated levels of

1

Citations to the J.A. refer to the Joint Appendix filed by the

parties in this appeal.

App. 4

Sr-90 in the area. Yet the Government still took no

action to inform exposed personnel or shut down the

potentially contaminated waterways. In 1984,

additional testing revealed benzene contamination in

a Hadnot Point drinking well, which led to the

subsequent closure of that well and to the review and

closure of several other wells on base. By 1985, all

identified contaminated wells supplied by the Hadnot

Point Water Treatment Plant distribution network

were shut down due to the presence of volatile organic

compounds in the network. Three years later, a

monitoring report “described a 15-foot layer of fuel

floating” atop the water table below the Hadnot Point

Fuel Farm and identified significant benzene levels in

nearby wells. J.A. 21.

As a result of the numerous contamination reports,

Camp Lejeune was placed on the Environmental

Protection Agency’s Superfund National Priorities List

in 1989. All investigation and remediation activities at

the base were subsequently “placed under the oversight

of” the federal government pursuant to the Resource

Conservation and Recovery Act and the Comprehensive

Environmental Response, Compensation, and Liability

Act. J.A. 21–22. A “review of environmental treatment

options” in 1993 unearthed “storage tanks containing

fuel, cleaning solvents and other chemicals” that “had

been buried at sites across Camp Lejeune for years.”

J.A. 22. The Department of Health and Human

Services’s Agency for Toxic Substances and Disease

Registry (“Agency for Toxic Substances”) published a

Public Health Assessment for Camp Lejeune in 1997.

However, in 2009, the Agency for Toxic Substances

took the Public Health Assessment down from its

App. 5

website, in part because it failed to discuss the extent

of benzene exposure.

Two years after the assessment was removed from

the website, the Government “directed” the Agency for

Toxic Substances “to attempt to survey former Camp

Lejeune employees’ health conditions.” J.A. 18. In 2012,

the Agency for Toxic Substances issued a new report

detailing significant contamination of the water supply

at Camp Lejeune, including at Hadnot Point. Two

years later, the Centers for Disease Control and

Prevention reported that individuals stationed at Camp

Lejeune had a 68% higher risk of developing multiple

myeloma. In 2016, the Department of Veterans Affairs

“adopted regulations [stating] that . . . eight associated

diseases including . . . adult leukemia were presumed

to have been caused by . . . exposure at Camp Lejeune.”

Id.

In 2019, two and a half years after Clendening’s

death, Plaintiff filed the instant suit pursuant to the

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–

2680. She alleged (1) fraudulent and “willfully and

wantonly negligent” conduct pertaining to the exposure

of military personnel to dangerous chemicals and the

subsequent failure to warn of the same, (2) fraudulent

concealment, (3) fraudulent publication of notice to the

public, (4) wrongful death due to water contamination,

and (5) wrongful death from direct exposure not

incident to Clendening’s service. J.A. 26.

The Government moved to dismiss under Rule

12(b)(1), arguing that Plaintiff’s claims were barred by

the rule announced in Feres v. United States, 340 U.S.

135 (1950); the Federal Tort Claims Act’s

App. 6

“discretionary-function” exception, 28 U.S.C. § 2680(a);

or both. The district court dismissed all claims for lack

of subject-matter jurisdiction, Clendening v. United

States, No. 7:19-CV-137-BR, 2020 WL 3404733, *2–6

(E.D.N.C. June 19, 2020), and Clendening timely

appealed.

II.

Whether a claim falls within the purview of the

Federal Tort Claims Act presents an issue of

subject-matter jurisdiction that we review de novo.

Rich v. United States, 811 F.3d 140, 144 (4th Cir.

2015).

“As a general matter, the United States is immune

from suit unless it waives that immunity.” Sanders v.

United States, 937 F.3d 316, 327 (4th Cir. 2019)

(quoting In re KBR, Inc., Burn Pit Litig., 744 F.3d 326,

341 (4th Cir. 2014)). The Federal Tort Claims Act

creates a limited waiver of the United States’ sovereign

immunity, generally making the Government liable in

tort “in the same manner and to the same extent as a

private individual under like circumstances.” 28 U.S.C.

§ 2674. But that waiver is curtailed by several

exceptions. 28 U.S.C. § 2680; Feres, 340 U.S. at 146;

Hancox v. Performance Anesthesia, P.A., 455 F. App’x

369, 371 (4th Cir. 2011) (per curiam). The plaintiff

bears the burden of showing “that none of the statute’s

waiver exceptions apply to [her] particular claim.”

Welch v. United States, 409 F.3d 646, 651 (4th Cir.

2005). If the plaintiff cannot satisfy this burden, “then

the claim must be dismissed.” Id.

App. 7

Plaintiff argues that her claims may proceed under

the Federal Tort Claims Act. But the district court

found that two different exceptions to the Act’s limited

waiver required dismissal of her claims, concluding

(1) that the Feres doctrine barred Plaintiff’s tort claims

for Clendening’s exposure to contaminated water and

other toxins while living at Camp Lejeune, and (2) that

to the extent a failure-to-warn claim survived Feres, it

was also barred under the discretionary-function

exception. Clendening, 2020 WL 3404733, at *4–6.

Plaintiff challenges both conclusions on appeal.

First, she asserts that the Feres doctrine does not apply

to this case because Clendening’s exposure was not

“incident to any military project” and because the

“[G]overnment’s conduct served no military purpose.”

Opening Br. at 24. Alternatively, she asks that, should

this Court find Feres applies, we abridge or overturn it.

Second, Plaintiff argues that the discretionary-function

exception does not apply to the military’s failure to

provide clean drinking water nor to its subsequent

failure to warn. We address each issue in turn.

A.

We first consider the applicability of what’s known

as the Feres doctrine. Shortly after the Federal Tort

Claims Act became law in 1946, the Supreme Court

considered a series of cases in which service members

or their executors sued the United States for injuries

sustained “due to negligence of others in the armed

forces.” Feres, 340 U.S. at 138 (1950). The Court

concluded that “the Government is not liable under the

Federal Tort Claims Act for injuries to servicemen

where the injuries arise out of or are in the course of

App. 8

activity incident to service.” Id. at 146 (emphasis

added).2

There is no “specific element-based or bright-line

rule” for determining whether certain conduct was

“incident to service.”3 Aikens v. Ingram, 811 F.3d 643,

650 (4th Cir. 2016), as amended (Feb. 1, 2016) (citing

United States v. Shearer, 473 U.S. 52, 57 (1985)).

Instead, we must ask whether “particular suits would

call into question military discipline and

decisionmaking [and would] require judicial inquiry

into, and hence intrusion upon, military matters.”

Cioca v. Rumsfeld, 720 F.3d 505, 515 (4th Cir. 2013)

(alteration in original) (quoting United States v.

Stanley, 483 U.S. 669, 682 (1987)). “Put another way,

where a complaint asserts injuries that stem from the

relationship between the plaintiff and the plaintiff’s

service in the military, the ‘incident to service’ test is

implicated.” Id.

2

“The Supreme Court has emphasized three broad rationales

underlying the Feres doctrine: (1) the distinctly federal nature of

the relationship between the government and members of the

armed forces, (2) the availability of existing alternative

compensation schemes in the military, and (3) the fear of

damaging military structure and discipline.” Kendrick v. United

States, 877 F.2d 1201, 1204 (4th Cir. 1989) (citing Stencel Aero

Eng’g Corp. v. United States, 431 U.S. 666, 671–73 (1977)).

3

Other circuits have adopted more specific factor-based tests. See,

e.g., Gros v. United States, 232 F. App’x 417, 418 (5th Cir. 2007)

(per curiam) (“We consider three factors to determine whether a

suit is barred: 1) the duty status of the plaintiff at the time of the

incident; 2) whether the incident occurred on or off the base; and

3) the plaintiff’s activity at the time of the injury.”).

App. 9

This test is admittedly “broad and amorphous.”

Aikens, 811 F.3d at 651. And this Court has remarked

numerous times on the vast coverage of the Feres

doctrine, stating that “in recent years the [Supreme]

Court has embarked on a course dedicated to

broadening the 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.” Stewart v. United States,

90 F.3d 102, 105 (4th Cir. 1996) (quoting Major v.

United States, 835 F.2d 641, 644 (6th Cir. 1987)); see

Aikens, 811 F.3d at 651.

Accordingly, the “focus” of the Feres doctrine “is not

upon when the injury occurs or when the claim

becomes actionable, rather it is concerned with when

and under what circumstances the negligent act

occurs.” Kendrick v. United States, 877 F.2d 1201, 1203

(4th Cir. 1989). While considerations such as the duty

status of the service member,4 whether the injury took

place on base, and what activity the service member

was engaged in at the time are relevant, they are not

always determinative. See Aikens, 811 F.3d at 651.

4

For example, courts often examine whether the service member

was on active duty (including while on liberty), leave, furlough, or

entirely discharged at the time the wrongful act occurred. See

Feres, 340 U.S. at 146. These statuses are usually considered on a

spectrum. For instance, in Lanus v. United States, the Eleventh

Circuit noted that “liberty status,” referring to “ short time periods,

often including weekends, when active-duty personnel are not on

authorized leave from duties but are outside normal working

hours,” was not the equivalent of “furlough, leave, or pass” as it “is

not a reprieve from active duty at all.” 492 F. App’x 66, 68, 70 n.4

(11th Cir. 2012) (per curiam).

App. 10

Moreover, this test “does not inquire whether the

discrete injuries to the victim were committed ‘in

support of the military mission.’” Cioca, 720 F.3d at

515.

With one exception, Plaintiff’s claims fall squarely

within Feres purview. The exposure cited as the cause

of Clendening’s death occurred in the course of his

day-to-day, 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.” Id. Moreover, the military’s provision

of water and accommodations to its troops is clearly

activity “incident to service.” See Aikens, 811 F.3d at

651 (noting that “[i]ncident to service” is not “a narrow

term” and that courts have found service members to

be engaged in an activity “incident to service” “when

. . . enjoying a drink in a noncommissioned officers

club, . . . riding a donkey during a ballgame sponsored

by the Special Services division of a naval air station,

and while swimming in a swimming pool at an airbase”

(quoting Hass for Use & Benefit of U.S. v. United

States, 518 F.2d 1138, 1141 (4th Cir. 1975))).

Indeed, it is hard to see how Plaintiff’s exposure

claims are meaningfully different from Feres itself. In

Feres, an active-duty soldier died when his barracks

caught fire. Feres, 340 U.S. at 137. His estate alleged

that the military negligently housed him in a building

“known to be unsafe” due to a “defective heating plant”

and failed to keep an adequate fire watch. Id. The

Supreme Court said these claims arose out of activity

“incident to service,” fell outside the scope of the

App. 11

Federal Tort Claims Act, and were therefore barred by

sovereign immunity. Id. at 146.

Thus, in Feres, as in this case, death allegedly

resulted from unsafe living conditions on base.

Numerous other courts evaluating claims related to

Camp Lejeune agree. E.g., Gros v. United States, 232 F.

App’x 417, 418–19 (5th Cir. 2007) (per curiam)

(affirming dismissal, under Feres, of plaintiff’s claims

stemming from exposure to contaminated water at

Camp Lejeune and noting that “there is little to

distinguish this case from Feres itself”), aff’g No.

CIV.A.H-04-4665, 2005 WL 6459834, at *2 (S.D. Tex.

Sept. 27, 2005) (“The events alleged to have given rise

to [plaintiff’s] injuries are quite similar to those of

Feres. In each case, the injuries occurred in the

serviceman’s home, on military property, during offduty hours, but not during a period of leave or

furlough.”); Foster v. Dep’t of the Navy, No. 5:19-CV429-FL, 2020 WL 1542092, at *3 (E.D.N.C. Mar. 31,

2020) (granting motion to dismiss for lack of subject

matter jurisdiction and remarking that plaintiff’s

Camp Lejeune exposure claim “is indistinguishable

from Feres itself”); see also In re Camp Lejeune N.C.

Water Contamination Litig., 263 F. Supp. 3d 1318,

1342 (N.D. Ga. 2016) (finding service members’ claims

of exposure while stationed at Camp Lejeune barred by

Feres), aff’d on other grounds, 774 F. App’x 564 (11th

Cir. 2019) (per curiam); Perez v. United States, No.

09-22201-CIV, 2010 WL 11505507, at *1, *2–5 (S.D.

Fla. Mar. 1, 2010) (dismissing under Feres claims

pertaining to the contamination of the water at Camp

Lejeune, the Government’s knowing exposure of service

members, and the subsequent failure to rectify or

App. 12

warn); cf. Lanus v. United States, 492 F. App’x 66,

67–70 (11th Cir. 2012) (per curiam) (barring a claim

under Feres for wrongful death of an active-duty,

on-liberty service member who died while sleeping from

a fire allegedly caused by the United States’ “negligent

upkeep” of assigned housing at a Naval Air Station).5

Plaintiff attempts to distinguish Feres in three

ways, arguing that Clendening’s injuries were not

related to a military objective and thus not “incident to

service”; that another case is more on-point; and that

the negligence of Feres is distinguishable from the

intentional acts here. None of these arguments are

persuasive.

Plaintiff first suggests that Feres only applies where

the exposure itself was “related to or served a military

objective” or “implicate[s] [a] military function.”

Opening Br. at 10–11, 16, 28 (citing, among other

cases, Maas v. United States, 94 F.3d 291, 293–95 (7th

Cir. 1996) (barring exposure claim under Feres where

service members participated in a “clean-up operation”

requiring them to “pick up radioactive debris”), and

Hinkie v. United States, 715 F.2d 96, 98 (3d Cir. 1983)

(involving an exposure claim arising from a

serviceman’s participation in nuclear testing)). But, as

5

But see Elliott v. United States, 13 F.3d 1555, 1556–57, 1563

(11th Cir.) (finding a claim against the Government for the

negligent maintenance of on-base housing, resulting in carbon

monoxide poisoning of a service member on leave and his wife, not

barred by Feres), reh’g granted and opinion vacated, 28 F.3d 1076

(11th Cir.), and on reh’g, 37 F.3d 617 (11th Cir. 1994) (affirming

district court’s judgment in favor of plaintiffs due to an evenly

divided court).

App. 13

previously mentioned, this Court has flatly stated that

the “incident to service” rule “does not inquire whether

the discrete injuries to the victim were committed ‘in

support of the military mission.’” Cioca, 720 F.3d at

515.” Put another way, where a complaint asserts

injuries that stem from the relationship between the

plaintiff and the plaintiff’s service in the military, the

‘incident to service’ test is implicated.” Id. Thus, the

fact that Clendening was not specifically ordered to

handle contaminants or that the Government has

articulated no strategic military purpose for exposing

Clendening to dangerous substances is irrelevant.6

Second, Plaintiff argues that this case does not fall

under Feres, but rather its counterpart, Brooks v.

United States, 337 U.S. 49 (1949), which allowed a

service member’s claims against the Government to

proceed. Id. at 52–53; see Opening Br. at 24–26. In

Brooks, two enlisted brothers and their father were

driving along a public highway when their car was hit

6

Plaintiff’s reliance on Lutz v. Secretary of Air Force, 944 F.2d

1477 (9th Cir. 1991), to argue otherwise is unpersuasive. In Lutz,

three of Major Marsha Lutz’s subordinates entered her office,

removed personal notes, and copied and disseminated them in an

attempt to ruin Major Lutz’s military reputation by implying she

had “a lesbian relationship with her civilian secretary.” Id. at

1479–80. The Ninth Circuit found Feres not to bar Major Lutz’s

claims against the individual defendants, holding that

“[i]ntentional tortious and unconstitutional acts directed by one

servicemember against another which further no conceivable

military purpose and are not perpetrated during the course of a

military activity surely are past the reach of Feres.” Id. at 1487

(emphasis added). Here, however, Plaintiff does not assert

wrongdoing on the part of any individual service members against

Clendening. Instead, she alleges that the Navy itself is culpable.

App. 14

by an army vehicle. 337 U.S. at 50. One of the brothers

died in the accident. Id. The Supreme Court allowed a

tort suit against the Government because the accident

“had nothing to do with the [brothers’] army careers,”

and their injuries were “not caused by their service

except in the sense that all human events depend upon

what has already transpired.” Id. at 52. However, just

one year later, the Court in Feres cabined Brooks by

finding the fact that the surviving Brooks brother was

on furlough at the time of the accident and “under

compulsion of no orders or duty and on no military

mission” to be a “vital distinction” that explained why

Brooks’s injury was not “incident to service.” Feres, 340

U.S. at 146. By contrast, at the time of Clendening’s

exposure, he was on active-duty status and stationed

on base due to his position as a Marine Corps Officer.

Third, Plaintiff contends that the Government’s

negligence in Feres cannot be compared with the

intentional, willful, or wanton “poisoning [of] enlisted

Marines and civilians” at Camp Lejeune. Reply Br. at

2. Even if Plaintiff had not waived this argument by

failing to squarely raise it until her Reply Brief,7 it is

unavailing. Applicability of the Feres doctrine depends

on whether the injury arose “incident to service,” not

the Government’s blameworthiness. See, e.g., Purcell v.

United States, 137 F. App’x 158, 160 (10th Cir. 2005)

(“The Feres doctrine turns on the relationship of the

plaintiff’s injury to his or her military service, not the

specific tort theory asserted to redress the injury. If it

7

A party “waive[s] [an] argument by raising it for the first time in

its reply brief.” Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty

Network, Inc., 722 F.3d 591, 602 n.13 (4th Cir. 2013).

App. 15

applies, it excepts the federal Government from any

liability ‘under the [Federal Tort Claims Act].’” (quoting

Ricks v. Nickels, 295 F.3d 1124, 1127 (10th Cir. 2002)).

Thus, we and other circuits have repeatedly applied

Feres to bar claims against the United States even

where the wrongful conduct was alleged to be

intentional, illegal, or unconstitutional. See, e.g.,

Aikens, 811 F.3d at 649–52 (4th Cir.) (applying Feres to

bar “constitutional claims brought against state officers

under 42 U.S.C. § 1983” that arose “incident to

service”); Trerice v. Summons, 755 F.2d 1081, 1084–85

(4th Cir. 1985) (recognizing that “Feres itself is a bar to

any common law tort claims” (emphasis added));

Mackey v. United States, 226 F.3d 773, 776 (6th Cir.

2000) (“There is no authority in the [Federal Tort

Claims Act] or Supreme Court precedent to apply the

Feres doctrine only to claims of negligence and not to

claims of intentional torts.”); Bowen v. Oistead, 125

F.3d 800, 804 (9th Cir. 1997) (“Feres bars intentional

tort claims as well as simple negligence claims.”); Kohn

v. United States, 680 F.2d 922, 925 (2d Cir. 1982)

(“[T]he Feres doctrine applies to both negligent and

intentional torts, absent specific statutory

exceptions.”); Stanley v. Cent. Intel. Agency, 639 F.2d

1146, 1152 (5th Cir. Unit B Mar. 1981) (barring a claim

under Feres despite plaintiff’s contention that the

wrongful act was “patently illegal”); Purcell, 137 F.

App’x at 160 & n.1 (10th Cir.) (finding that Feres bars

both intentional tort and constitutional claims that

arise “incident to service”).

Her attempts to distinguish Feres having failed,

Plaintiff implores this Court to overrule, or at least

abrogate, Feres. To be sure, criticism of the Feres

App. 16

doctrine abounds. Justices, judges, and scholars have

routinely noted the harsh results brought about by the

doctrine, and many have suggested Feres itself was

wrongly decided.8 See, e.g., United States v. Johnson,

481 U.S. 681, 700–01 (1987) (Scalia, J., dissenting)

(“Feres was wrongly decided and heartily deserves the

‘widespread, almost universal criticism’ it has

received.” (quoting In re “Agent Orange” Prod. Liab.

Litig., 580 F. Supp. 1242, 1246 (E.D.N.Y. 1984)));

Lanus v. United States, 570 U.S. 932, 933 (2013)

(Thomas, J., dissenting from denial of certiorari)

(agreeing with Justice Scalia’s statement in Johnson

that Feres was “wrongly decided,” and stating that “[a]t

a bare minimum, it should be reconsidered”). However,

despite the rampant criticism, the Feres doctrine still

stands, and this Court is bound by it. See Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,

484 (1989) (“[T]he Court of Appeals should follow the

case which directly controls, leaving to [the Supreme]

Court the prerogative of overruling its own decisions.”).

Accordingly, we affirm the district court’s judgment

that Feres bars all of Plaintiff’s claims premised upon

Clendening’s initial exposure to toxic substances.

B.

That leaves Plaintiff’s failure-to-warn claim.

Plaintiff alleges that, even after Clendening was

8

The particular case of Camp Lejeune has attracted some

bipartisan efforts in Congress, including one recent proposal to

waive sovereign immunity specifically for those who were exposed

to contaminated water at the base. See Camp Lejeune Justice Act

of 2021, H.R. 2192, 117th Cong. § 2(e) (2021).

App. 17

discharged, the Government had a duty to warn

Clendening of the health risks posed by his exposure

to contaminants at Camp Lejeune, especially as the

Government learned more about those risks over the

years. The Government concedes that Feres does not

bar this claim, and we agree. However, we conclude

that it is otherwise barred by another exception to

Federal Tort Claims Act liability, the discretionaryfunction exception.

While the Feres doctrine may be broad, it is not all

encompassing. The Supreme Court indicated in United

States v. Brown, 348 U.S. 110 (1954), that Feres may

not bar a service member’s claim where the

Government commits a separate wrongful act,

resulting in injury, after the service member’s

discharge. Id. at 110–13 (finding Feres not to bar a

serviceman’s claim for severe nerve damage resulting

from the Veterans Administration’s application of a

defective tourniquet during a post-service surgery for

an injury received while in active-duty service); see also

Bradley v. United States, 161 F.3d 777, 778–82 (4th

Cir. 1998) (reversing district court’s Feres-based grant

of summary judgment to the Government for the

wrongful-death claim of the estate of a servicewoman

who died from an infection after being repeatedly

turned away by military medical staff because, despite

the possibility that the infection was merely a

reoccurrence of a previous active-duty infection, the

negligent medical treatment at issue was a separate

act occurring after the servicewoman was placed on

off-duty status).

App. 18

Several other circuits have applied Brown’s

rationale and found that “separate” or “independent”

failure-to-warn claims arising after a service member’s

discharge are not barred by Feres. Broudy v. United

States, 661 F.2d 125, 128 (9th Cir. 1981); see, e.g.,

Maas, 94 F.3d at 296 (7th Cir.); Cole v. United States,

755 F.2d 873, 880 (11th Cir. 1985). In other words, a

plaintiff “can maintain an action based on the

[military]’s post-discharge failure to warn or treat the

injured service person if the negligent act constituted

a new and independent tort.” Maas, 94 F.3d at 296

(quoting M.M.H. v. United States, 966 F.2d 285, 288 n.2

(7th Cir. 1992)). For a failure-to-warn claim to

constitute “a new and independent tort,” the duty to

warn must arise after the service member’s discharge.

See id. If, by contrast, the duty to warn “originated

when the injured serviceman was in the armed forces

and merely continued after discharge” then the tort is

not “separate,” but a “continuing tort” barred under

Feres. Cole, 755 F.2d at 876; see also Minns v. United

States, 155 F.3d 445, 450 (4th Cir. 1998) (suggesting

that a failure-to-warn claim arising during service

would be barred under Feres).

Applying the rationale of Brown and its progeny, we

find Plaintiff’s failure-to-warn claim is not barred by

Feres. Here, the initial injury “incident to service” was

Clendening’s exposure to toxic chemicals and

hazardous substances while at Camp Lejeune.

However, according to the complaint, the Government

was not aware of any such exposure until 1979 or 1980.

Therefore, any duty on the part of the Government to

warn Clendening arose years after he left the service in

App. 19

1973 and would constitute a “separate” and

“independent” tort not incident to his military service.

However, this is not the end of our inquiry. The

Government contends that, even if Plaintiff’s failure-towarn claim survives Feres, it is barred by the Federal

Tort Claims Act’s discretionary-function exception. As

discussed next, we agree.

C.

The Federal Tort Claims Act states that its limited

waiver-of-sovereign-immunity provisions “shall not

apply” to claims “based upon the exercise . . . or the

failure to exercise . . . a discretionary function or duty

on the part of . . . the Government, whether or not the

discretion involved be abused.” 28 U.S.C. § 2680(a). To

determine whether the discretionary-function exception

applies, we employ a two-step analysis. Wood v. United

States, 845 F.3d 123, 128 (4th Cir. 2017).

First, we “must determine whether the conduct in

question ‘involves an element of judgment or choice.’”

Id. (quoting Berkovitz ex rel. Berkovitz v. United States,

486 U.S. 531, 536 (1988)). Conduct cannot be deemed

discretionary where “a statute, regulation, or policy

prescribes the [Government]’s conduct.” Id. If the

“challenged conduct is the product of judgment or

choice,” we proceed to the second step. Id. Under the

second step, we consider whether the challenged

conduct “is of the kind that the discretionary function

exception was designed to shield,” i.e., a decision “based

on considerations of public policy.” Berkovitz, 486 U.S.

at 536–37.

App. 20

1.

The first question is whether the Government’s

failure to warn was the product of discretion as

opposed to mandate. We conclude that it was

discretionary. Plaintiff fails to identify any state,

federal, or agency provision that would have required

the Government to issue a specific warning to

Clendening after his discharge.9

Plaintiff argues that the Government’s actions were

specifically prescribed by certain Department of the

Navy Bureau of Medicine and Surgery (“BUMED”)

regulations which became effective in 1972.10 Opening

9

At oral argument, Plaintiff’s counsel argued for the first time that

the Government’s conduct violated two additional Navy

regulations. Counsel also seemed to argue that discovery should

have been granted to allow Plaintiff to discover what additional

regulations the Government may have violated. However, Plaintiff

never mentioned this argument or the two Navy regulations in her

complaint or in any briefing before this Court. Nor did Plaintiff’s

counsel notify opposing counsel, or this Court, of his intention to

rely on such authority. Because we generally “will not consider

arguments not made in the briefs, but raised instead for the first

time at oral argument,” we decline to consider these regulations

and the connected discovery argument. United States v. Pena, 952

F.3d 503, 511 (4th Cir. 2020), as amended (Mar. 11, 2020).

10

Plaintiff also references the Atomic Energy Act of 1954 and the

1948 Water Pollution Control Act for the proposition that the

Government had no discretion to pollute the water or bury nuclear

waste at the base. Atomic Energy Act of 1954, Pub. L. 83-703, § 57,

68 Stat. 919, 932 (current version at 42 U.S.C. § 2077); Water

Pollution Control Act, Pub. L. 80-845, 62 Stat. 1155 (1948)

(amended 1972). Plaintiff does not fully flesh out these arguments.

However, even assuming the Government did violate these

statutes, its negligent conduct pertaining to Clendening was the

App. 21

Br. at 34–37. She points to several provisions contained

in BUMED 6240.3C which state, in part, that

“[d]rinking water shall not contain impurities in

concentrations which may be hazardous to the health

of consumers.” Dep’t of the Navy, Bureau of Med. and

Surgery, BUMED Instruction 6240.3C 7(d) (1972).

Given the language of this provision, Plaintiff asserts

the Government had no discretion to provide

contaminated drinking water.

Even if that were true, this argument is not

persuasive because the BUMED regulation

contemplates only the drinking water itself; it says

nothing about the need to provide warnings.11

However, as noted above, any claims resulting from the

exposure are barred under Feres.12 What is critical here

exposure to these hazards. And, as discussed above, the exposure

itself was incident to service and thus any resulting claims would

be barred under Feres. Plaintiff does not clearly allege otherwise.

Nor does she point to any provision outlining a duty to warn.

11

Indeed, the only provision in BUMED 6240.3C that even

mentions a potential duty to warn is a comment in a footnote, not

cited by either party, which states “the public should be warned of

the potential dangers of using the water for infant feeding” in

areas where the “nitrate or nitrite content of water is known to be

in excess of the listed concentration.” Dep’t of the Navy, Bureau of

Med. and Surgery, BUMED Instruction 6240.3C 7(d)(1) n.3.

However, given the language of the comment, it is not clear that

this single footnote creates a mandatory duty to warn. Even if it

did, such a warning would not pertain to Clendening or the

injuries he suffered since it is expressly limited to risks to infants

from nitrates and nitrites.

12

Plaintiff cites two district court cases, Washington v. Dep’t of the

Navy, 446 F. Supp. 3d 20 (E.D.N.C. 2020), and Jones v. United

App. 22

is whether the Government had a separate duty to

warn Clendening of the exposure after it had occurred.

Plaintiff points to no provision within BUMED 6240.3C

establishing a mandatory duty to warn Clendening of

his exposure.

Although not referenced in the complaint or

Plaintiff’s Opening Brief, the Government highlights

two statutes enacted in the late 2000s which speak to

a duty to warn service members of any exposure

resulting from their time at Camp Lejeune. However,

it contends that the language of these statutes permits

discretion on the part of the Government. We agree.

Both cited statutes contain broad language, leaving

numerous decisions involving elements of “judgment or

choice” in the hands of the Government. The first

statute states that “the Commandant of the Marine

Corps shall take appropriate actions . . . to notify

States, 691 F. Supp. 2d 639 (E.D.N.C. 2010), but they are

distinguishable. While the courts in both Washington and Jones

found the 1972 BUMED Instructions for Camp Lejeune to leave no

room for discretion and to mandate a clean water supply, both

involved exposure claims arising after 1972. Washington, 446 F.

Supp. 3d at 22, 26–28; Jones, 691 F. Supp. 2d at 640, 642–43.

Moreover, neither case involved claims stemming from the direct

injury of a service member and neither court discussed Feres. See

Washington, 446 F. Supp. 3d at 23, 25–29; Jones, 691 F. Supp. 2d

at 640, 642–43. Instead, both cases focused on whether decision

makers had discretion or could consider matters of policy in

determining whether to provide clean water at Camp Lejeune. See

Washington, 446 F. Supp. 3d at 25–29; Jones, 691 F. Supp. 2d at

642–43; see also Opening Br. at 30–31. That is a different question

than one presented here: whether the Navy had discretion to

decide whether and how to later warn Clendening about the extent

and impact of his exposure.

App. 23

former Camp Lejeune residents and employees who

may have been exposed to drinking water impacted by

trichloroethylene and tetrachloroethylene.” 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). The second

statute similarly provides that “the Secretary of the

Navy shall make reasonable efforts to identify and

notify directly individuals who were served by the

system during the period identified in the study of the

drinking water contamination to which they may have

been exposed.” National Defense Authorization Act for

Fiscal Year 2008, Pub. L. No. 110-181, § 315(b), 122

Stat. 3, 56–57 (emphasis added).

There is some mandatory language included in both

public laws. See § 318(b), 120 Stat. 2083, at 2143–44

(“shall take appropriate actions”); § 315(b), 122 Stat. 3,

at 56–57 (“shall make reasonable efforts”). However,

we have previously noted that “[t]he existence of some

mandatory language does not eliminate discretion

when the broader goals sought to be achieved

necessarily involve an element of discretion.” Holbrook

v. United States, 673 F.3d 341, 348 (4th Cir. 2012)

(quoting Miller v. United States, 163 F.3d 591, 595 (9th

Cir. 1998)) (finding the directive that “[t]he [Federal

Aviation] Administrator shall issue an airworthiness

certificate when the Administrator finds that the

aircraft conforms to its type certificate and, after

inspection, is in condition for safe operation” could not

be read to remove all discretionary “safety-related

decisions” (citations omitted)). We have considered

various statutes, public laws, and regulations

containing some mandatory language, such as “shall,”

App. 24

but found discretion remained with the Government

where the “general, sweeping language” of the text did

not remove all relevant decisions from their control.

Baum v. United States, 986 F.2d 716, 721–22 (4th Cir.

1993); see Holbrook, 673 F.3d at 348–49. 13

In the same way, the broad language of the

high-level directives at issue here—that the

Government shall “make reasonable efforts” and “take

appropriate actions”—indicates that the Government

“retains discretion regarding the implementation of

those mandates.” Rich, 811 F.3d at 145. Determining

what is “reasonable” or “appropriate” necessarily

involves elements of judgment and choice on the part of

the Government. See Baum, 986 F.2d at 721–22, 722

n.2 (noting that the language of construction guidelines

stating “[s]ubstantial railings along each side of the

bridge shall be provided for the protection of traffic”

was still “far too general to serve as a mandatory

regulation governing the choice of guardrail post

materials”). So those statutes, like the BUMED

regulations, cannot support Plaintiff’s claim that the

Government had a mandatory duty to warn

Clendening.

13

See also Clark v. United States, 695 F. App’x 378, 385–86 (10th

Cir. 2017) (explaining that “the mere use of verb forms that

indicate mandatory action is insufficient as a matter of law for us

to infer a non-discretionary function” and that “[w]here the

regulatory language ‘mandates’ the consideration of alternatives,

the weighing of factors, or the application of policy priorities

bounded by practical concerns, the language leaves to the

decisionmaker’s discretion how best to fulfill such ‘mandatory’

priorities”).

App. 25

2.

Having concluded that the “challenged conduct is

the product of judgment or choice,” we turn to the

second step of the discretionary-function analysis.

Wood, 845 F.3d at 128. Under the second step, we

consider whether the challenged conduct involved a

decision “based on considerations of public policy.”

Berkovitz, 486 U.S. at 537. If the relevant “statute,

regulation, or agency guideline[]” permits discretion, “it

must be presumed that the [Government’s] acts are

grounded in policy when exercising that discretion.”

United States v. Gaubert, 499 U.S. 315, 324 (1991).

This is a “strong presumption.” Id. Thus, “[f]or a

complaint to survive a motion to dismiss, it must allege

facts which would support a finding that the challenged

actions are not the kind of conduct that can be said to

be grounded in the policy of the regulatory regime.” Id.

at 324–25. This analysis centers on “the nature of the

actions taken [by the Government] and on whether

they are susceptible to policy analysis.” Id. at 325. And

in our analysis, “we do not ‘inquire whether policy

considerations were actually contemplated in making

a decision.’” Blanco Ayala v. United States, 982 F.3d

209, 214–15 (4th Cir. 2020) (quoting Smith v. Wash.

Metro. Area Transit Auth., 290 F.3d 201, 208 (4th Cir.

2002)). Rather, our inquiry is objective, asking whether

the challenged decision “is one which we would expect

inherently to be grounded in considerations of policy.”

Seaside Farm, Inc. v. United States, 842 F.3d 853, 858

(4th Cir. 2016) (quoting Baum, 986 F.2d at 721).

Courts have frequently found that “the

[G]overnment’s decision whether to warn about the

App. 26

presence of toxins, carcinogens, or poisons falls under

the discretionary function exception to the [Federal

Tort Claims Act]’s waiver of sovereign immunity.”14

Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86,

101–02 (1st Cir. 2012) (collecting cases in which other

circuits have held that the decision whether to issue a

warning fell within discretionary-function exception).

Indeed, as this Court and others have observed, “the

decision to warn is ‘replete with choices’ and requires

‘ascertaining the need for a warning and its cost,’

‘determining the group to be alerted, as well as the

content and procedure of such notice,’ and ultimately,

‘balanc[ing] safety with economic concerns.’” Minns,

155 F.3d at 452 (quoting Maas, 94 F.3d at 297); see also

Seaside Farm, 842 F.3d at 859 (explaining that

“decisions regarding [Salmonella] contamination

warnings are ‘grounded in the policy of protecting the

public from a health risk, and reducing adverse

economic impact’” and that “[d]iscretion is necessary to

evaluate available information, assess the sufficiency

and reliability of evidence, resolve conflicting data,

determine the overall nature of a health threat, and

ultimately settle on a course of action”); Sánchez, 671

at 101–02. Furthermore, where the Government has

provided some warning or disclosure, the decision not

to provide additional, earlier, or more urgent warnings

may more clearly indicate the existence of policy

choices than would a failure to provide any warning at

14

Of course, not all decisions whether to warn will ultimately pass

the discretionary-function test. See, e.g., Clark, 695 F. App’x at

387–88 (comparing failure-to-warn claims against park services

that were barred by the discretionary-function exception with

those that were not).

App. 27

all. See Clark v. United States, 695 Fed. App’x 378, 388

(10th Cir. 2017).

Here, we find that the Government’s decision of how

and when to warn implicates policy decisions. To issue

warnings, the Government would need to “evaluate

available information, assess the sufficiency and

reliability of evidence, resolve conflicting data,

determine the overall nature of a[ny] health threat[s],”

Seaside Farm, 842 F.3d at 859, consider how to identify

potentially exposed individuals, decide what type of

medium or combinations of mediums would be the best

way to convey the risk to those exposed, and weigh

practicality and economic constraints. All these

decisions implicate public policy, health, and safety

concerns. See, e.g., id.; Maas, 94 F.3d at 297–98.

Moreover, it appears that the Government provided

at least some warnings, inadequate though they may

be. Per the complaint, the Agency for Toxic Substances

published a Public Health Assessment for Camp

Lejeunein 1997, though it was taken down from its

website in 2009. In 2011, the Government directed the

Agency for Toxic Substances “to attempt to survey

former Camp Lejeune employees’ health conditions.”

J.A. 18. In December 2012, the Agency for Toxic

Substances released a new report discussing the

contamination of the water at Camp Lejeune and

indicating that harmful chemicals, such as benzene and

trichlorethylene, were found within the Hadnot Point

Water Treatment Plant service area. Four years later,

the Government ultimately “adopted regulations

[stating] that . . . eight associated diseases . . . were

presumed to have been caused by . . . exposure at Camp

App. 28

Lejeune.” J.A. 18. Thus, the Government did provide

some warnings, and its decision to not issue earlier

warnings may very well have been due to any of the

policy decisions discussed above.

We do not discount the severe harm Clendening

suffered, allegedly due to exposure at Camp Lejeune.

Nor do we conclude that earlier, more complete

warnings would not have been helpful to him.

However, “the discretionary function exception applies

‘even if the discretion has been exercised erroneously’

and is alleged ‘to frustrate the relevant [regulatory]

policy.’” Holbrook, 673 F.3d at 350 (alteration in

original) (quoting Gaubert, 499 U.S. at 338 (Scalia, J.,

concurring in part and concurring in the judgment)). As

the statute specifies, the exception applies “whether or

not the discretion involved [is] abused.” 28 U.S.C.

§ 2680(a).

Because we find the discretionary-function

exception of the Federal Tort Claims Act applies to

Plaintiff’s failure-to-warn claim, we affirm the district

court’s dismissal.

III.

For the reasons stated above, we affirm the district

court’s dismissal of all of Plaintiff’s claims for lack of

subject-matter jurisdiction under Rule 12(b)(1).

AFFIRMED

App. 29

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:19–CV–137–BR

[Filed: June 19, 2020]

__________________________________________

CAROL V. CLENDENING, as Personal

)

Representative of the Estate of Gary J.

)

Clendening,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA,

)

)

Defendant.

)

__________________________________________)

ORDER

This matter is before the court on the United States

of America’s (“defendant” or the “government”) motion

to dismiss Carol Clendening’s (“plaintiff”) complaint.

(DE # 20.) Plaintiff filed a response, (DE ## 22, 23), to

which defendant filed a reply, (DE # 24). This matter

has been fully briefed and is now ripe for disposition.1

1

Also before the court is plaintiff’s motion for a settlement

conference, (DE # 25), to which the government responded in

App. 30

I. BACKGROUND

This dispute involves a United States Marine Judge

Advocate General’s Corps (“JAG”) Officer, Gary J.

Clendening (“Clendening”), who served at Camp

Lejeune from May 1970 to December 1971. (See

Compl., DE # 1, ¶ 2.) Clendening passed away on

16 November 2016 after having suffered

from “Waldenstrom macroglobulinemia, chronic

lymphoblastic lymphoma, and adult leukemia.” (Id.

¶ 3.) Plaintiff, as representative of Clendening’s estate,

claims the injuries resulting in his death were caused

by his exposure at Camp Lejeune to contaminated

water as well as “radioactive waste, chemical weapon

waste, solvents, benzene, and other carcinogens that

were improperly disposed, buried or spilled.” (Id. ¶ 2.)

Plaintiff’s complaint contains numerous allegations.

She contends Camp Lejeune had three main water

distribution systems which served the residential

areas. (Id. ¶ 50.) Plaintiff asserts that Clendening

resided at one of the Hadnot Point family housing

areas, (id.), which was served by the Hadnot Point

water distribution system, (id.), near the Hadnot Point

Fuel Farm, (id. ¶ 51). The Hadnot Point Fuel Farm was

allegedly comprised of 15 fuel tanks which stored

various chemicals and substances. (Id.) Plaintiff

contends Clendening “regularly consumed and was

exposed to substantial amounts of water supplied by

opposition, (DE # 27). The government opposes plaintiff’s motion

on the same grounds stated in its motion to dismiss. (Id.)

Therefore, plaintiff’s motion is denied and the court addresses the

merits of defendant’s motion to dismiss.

App. 31

the Hadnot Point water supply facilities,” (id. ¶ 41),

which he used for “drinking cooking, bathing, and

washing clothing,” (id.).

The maintaining of the Hadnot Point water system

was regulated by a 1972 order from the Department of

Navy Bureau of Medicine and Security (“BUMED”). (Id.

¶ 34.) BUMED 6240.3C regulated the water supply and

imposed water quality standards. (Id. ¶¶ 35, 36.) It

states, in relevant part,

a. The water supply should be obtained from the

most desirable source which is feasible, and

effort should be made to prevent or control

pollution of the source. If the source is not

adequately protected by natural means, the

supply shall be adequately protected by

treatment.

b. Frequent sanitary surveys shall be made of

the water supply system to locate and identify

health hazards which might exist in the system.

(Id. ¶ 35.) It further provides, in relevant part,

d. Chemical Characteristics (Limits). Drinking

water shall not contain impurities in

concentrations which may be hazardous to the

health of the consumers……………..Substances

which may have deleterious physiological effects,

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.

(Id. ¶ 36 (omission in original).)

App. 32

Plaintiff contends defendant violated the BUMED

by permitting “gasoline and diesel, radioactive

material, and chemical weapons to leak from the Fuel

Farm, the landfill, and the incinerator[,] into the

ground.” (Id. ¶ 38.) She also alleges “[t]he contaminated

ground water in turn leached toxic and hazardous

chemicals into the walls of the water supply wells

serving the Hadnot Point water distribution system[,]”

(id. ¶ 39), and defendant failed to test and treat the

contaminated water in violation of the BUMED, (id.

¶¶ 39, 40).

Additionally, plaintiff alleges the government

discovered that the inhabitants of Camp Lejeune had

been exposed to radioactive chemicals in 1980,

following a contractor’s visit where Strontium 90, a

radioactive element, was discovered just below the

earth’s surface at a recreational area near Clendening’s

residence and work. (Id. ¶ 18.) As a result of this

discovery, the government conducted a study regarding

the degree of toxic exposure inhabitants at Camp

Lejeune suffered, which was completed on 9 April 1981.

(Id.) Plaintiff also contends the government discovered

that the fuel storage at Hadnot Point Fuel Farm was

leaking and in general disrepair in 1980. (Id. ¶ 52.)

Beginning in 1984, various studies followed regarding

the conditions of the Hadnot Point Fuel Farm and

water supply, which defendant did not release to the

public until 2012. (Id. ¶¶ 54–56, 69.)

Plaintiff brings claims of fraud, specifically

concealment, (id. at 18), willful and wanton negligence,

(id. at 21), fraudulent publication of notice to the

public, (id. at 26), wrongful death due to water

App. 33

contamination, (id. at 27), and wrongful death due to

direct exposure, (id. at 28), under the Federal Tort

Claims Act (“FTCA”). Defendant moves to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(1) for

lack of subject matter jurisdiction.

II. DISCUSSION

When a Rule 12(b)(1) motion challenge is raised

to the factual basis for subject matter

jurisdiction, the burden of proving subject

matter jurisdiction is on the plaintiff. In

determining whether jurisdiction exists, the

district court is to regard the pleadings’

allegations as mere evidence on the issue, and

may consider evidence outside the leadings

without converting the proceeding to one for

summary judgment. The district court should

apply the standard applicable to a motion for

summary judgment, under which the nonmoving

party must set forth specific facts beyond the

pleadings to show that a genuine issue of

material fact exists. The moving party should

prevail only if the material jurisdictional facts

are not in dispute and the moving party is

entitled to prevail as a matter of law.

Richmond, Fredericksburg & Potomac R. Co. v. United

States, 945 F.2d 765, 768–69 (4th Cir. 1991) (internal

citations omitted).

Defendant moves to dismiss for lack of subject

matter jurisdiction on two grounds: (1) the Feres

Doctrine and (2) the FTCA’s discretionary function

exception. (See Mem. Supp. Mot. Dismiss, DE # 21, at

App. 34

10, 24.) Plaintiff contends neither doctrine applies to

her case and, furthermore, that the Feres Doctrine

should be abrogated as a matter of law. (Pl.’s Resp.

Opp’n, DE # 23, at 18, 25–26.)

A. Feres Doctrine

Defendant contends that because Clendening’s

death allegedly resulted from his exposure to

contaminated water and exposure to chemicals and

radioactive waste near his residence at Camp Lejeune

during his military service there, (Mem. Supp. Mot.

Dismiss, DE # 21, at 12), his injury was incident to his

service and, therefore, barred under Feres, (id. at 15).

Plaintiff contends Feres does not bar her claims

because the government has not established what

“service related activity” Clendening “was engaged in

at the time of his service” which involved his chemical

exposure. (Pl.’s Resp. Opp’n, DE # 23, at 18.) Further,

plaintiff contends the government “fails to identify any

military decision that would be affected by this Court’s

jurisdiction.” (Id. at 20.)

“[T]he 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.”

Feres v. United States, 340 U.S. 135, 146 (1950).

“[W]here a complaint asserts injuries that stem from

the relationship between the plaintiff and the plaintiff’s

service in the military, the ‘incident to service test’ is

implicated.” Aikens v. Ingram, 811 F.3d 643, 651 (4th

Cir. 2016) (internal citation omitted); accord Cioca v.

Rumsfeld, 720 F.3d 505, 515 (4th Cir. 2013). “The

factors to be considered are: (1) the duty status of the

service member; (2) the situs of the injury; and (3) the

App. 35

activity the service member was engaged in at the time

of the injury.” Shoen v. United States, 885 F. Supp.

827, 829 (E.D.N.C. 1995) (alteration in original

omitted), aff’ d, 81 F.3d 151 (4th Cir. 1996); Aikens, 811

F.3d at 650–51 (these factors are fact-specific, no

bright-line rules have been adopted by “Feres and its

progeny”). The incident to service test “does not inquire

whether the discrete injuries to the victim were

committed in support of the military mission, but

instead whether the asserted injuries stem from the

relationship between the plaintiff and the plaintiff’s

service in the military.” Nacke v. United States, 783 F.

App’x 277, 281 (4th Cir. 2019) (internal quotation

marks omitted).

“[T]he Fourth Circuit has considered the rationales

behind the incident to service test, as dictated by the

Supreme Court, to bar most military service-based

claims.” Cubias v. United States, No. 5:19–CV–46–FL,

2019 WL 4621981, at *2 (E.D.N.C. Sept. 23, 2019)

(internal citations and quotation marks omitted);

accord Chappell v. Wallace, 462 U.S. 296, 299 (1983);

Stewart v. United States, 90 F.3d 102, 105 (4th Cir.

1996) (finding that the Supreme Court has broadened

the Feres Doctrine to include “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”). However, “the Feres [D]octrine does

not bar an action against the United States for a

service-related injury suffered by a veteran as a result

of independent post-service negligence.” Broudy v.

United States, 722 F.2d 566, 570 (9th Cir. 1983); accord

United States v. Brown, 348 U.S. 110, 112 (1954)

(finding that plaintiff’s injury, permanent nerve

App. 36

damage as a result of a defective tourniquet applied in

a veteran’s hospital while on active duty, exempt from

the Feres Doctrine because the injury itself occurred

after discharge when the individual was on civilian

status); Maas v. United States, 94 F.3d 291, 295–96

(7th Cir. 1996); Cole v. United States, 755 F.2d 873,

876 (11th Cir. 1985); Stanley v. Central Intelligence

Agency, 639 F.2d 1146, 1154–55 (5th Cir. 1981); In re

Camp Lejeune N. Carolina Water Contamination

Litig., 263 F. Supp. 3d 1318, 1342–43 (N.D. Ga. 2016),

aff’d sub nom. Perez v. United States, Dep’t of the Navy

(In re Camp Lejeune, N.C. Water Contamination

Litig.), 774 F. App’x 564 (11th Cir. 2019), cert. denied,

Douse v. United States, No. 19–737, 2020 WL 2814771,

at *1 (U.S. June 1, 2020), and cert. denied, Bryant v.

United States, No. 19–982, 2020 WL 2814772, at *1

(U.S. June 1, 2020).

Plaintiff’s claims against defendant, with exception

of her negligence claim to the extent it alleges postdischarge failure-to-warn, are based on injuries that

occurred while Clendening lived and worked at Camp

Lejeune as an active duty JAG Officer. As such,

injuries resulting from his daily life at Camp Lejeune,

such as drinking and using contaminated water or

living in a housing unit geographically near disposed

radioactive materials, are incident to his military

service. Other courts have reached a similar conclusion.

See e.g., Foster v. Dep’t of the Navy, No. 5:19–CV–

429–FL, 2020 WL 1542092, at *3 (E.D.N.C. Mar. 31,

2020) (finding plaintiff’s injury, arising from consuming

contaminated drinking water while stationed at Camp

Lejeune, incident to his military service and therefore

barred under Feres); Swanson v. United States, No.

App. 37

3:18–CV–02148–JR, 2019 WL 7633157, at *2 (D. Or.

Nov. 6, 2019) (finding plaintiff’s negligence claim for

exposure to contaminated water barred by Feres

because it occurred while plaintiff was on active duty

status as a student at Camp Lejeune’s Motor Transport

School), report and recommendation adopted, 2020 WL

423384 (D. Or. Jan. 24, 2020); In re Camp Lejeune, 263

F. Supp. 3d at 1341 (dismissing all of plaintiff’s claims

under Feres, except for post-discharge failure-to-warn

claims, as the servicemember’s injuries were a result of

drinking and using contaminated drinking water while

on active duty at Camp Lejeune); O’Connell v. Dep’t of

Navy, No. CIV.A. 10–10746–NMG, 2010 WL 5572928,

at *3 (D. Mass. Dec. 21, 2010) (finding plaintiff’s claim

barred by Feres because his injury caused by drinking

water at Camp Lejeune, “arose out of military life”);

Perez v. United States, No. 09–22201–CIV, 2010 WL

11505507, at *3 (S.D. Fla. Mar. 1, 2010) (finding

plaintiff’s injury from drinking and using contaminated

water while on active duty at Camp Lejeune incident to

his military service because it is the government’s duty

to provide housing and water for soldiers on military

bases); Gros v. United States, No. CIV.A.H–04–4665,

2005 WL 6459834, at *2 (S.D. Tex. Set. 27, 2005)

(dismissing plaintiff’s claim, “arising from the use of

contaminated water in his home” at Camp Lejeune

because it was legally indistinguishable from the injury

in Feres), aff’d, 232 F. App’x 417 (5th Cir. 2007).

Plaintiff‘s claim that Clendening was also injured as a

result of direct exposure to radioactive waste and other

improperly disposed toxic substances does not alter the

court’s conclusion.

App. 38

However, plaintiff’s negligence claim, to the extent

she alleges a post-discharge failure-to-warn claim, does

survive the Feres Doctrine. Plaintiff claims that after

Clendening was discharged from the military, new

information arose about his exposure to toxic

chemicals. This information purportedly formed a new

government duty to inform Clendening about his

exposure and any injuries occurring thereafter.2 All

other claims will be dismissed under Feres.

B. Discretionary Function Exception

The government argues this court lacks subject

matter jurisdiction, independent of the Feres Doctrine,

under the FTCA’s discretionary function exception.

(Mem. Supp. Mot. Dismiss, DE # 21, at 21.)

Specifically, the government contends there is no

“specific and mandatory provision requiring the United

States to inform former residents of the contamination

at Camp Lejeune” and, furthermore, that “any

post-discharge warning decision regarding the

contamination at Camp Lejeune would necessarily

involve complex decision-making, including

consideration of competing priorities and allocation of

resources[,]” (id. at 23). In response, plaintiff contends

the FTCA discretionary function exception does not

apply because the “government concedes that the

BUMEDS standards . . . that were enacted after

Captain Clendening’s service are enough to give rise to

2

The government concedes in its brief that post-discharge failureto-warn claims are not barred by Feres. (See Mem. Supp. Mot.

Dismiss, DE # 21, at 20 (citing Cole v. United States, 755 F.2d 873

(11th Cir. 1985).)

App. 39

a duty to warn the servicemember after his service

concluded.” (Pl.’s Resp. Opp’n, DE # 23, at 24.) Plaintiff

also cites to a 1981 Report of Radiological Affairs,

asserting that the report shows the radioactive

materials at Camp Lejeune were disposed of at the

military base prior to the 1954 Atomic Energy Act

(“AEA”), making their disposal a violation of a

mandatory federal law. (Id. (citing DE # 23-2, Ex. B, at

7 (“As is stated in Appendix A, the Navy likely had an

[Atomic Energy Commission] authorization to possess

these buttons before licensing was implemented in

accordance with the Atomic Energy Act of 1954”)).)

“As a general matter, the United States is immune

from suit unless it waives that immunity.” Sanders v.

United States, 937 F.3d 316, 327 (4th Cir. 2019)

(internal citation omitted). The FTCA acts as such a

waiver. Id. However,

That waiver is subject to exceptions[] and one

exception exists for the performance of

discretionary functions. This exception

immunizes the Government from “[a]ny claim

. . . based upon the exercise or performance or

the failure to exercise or perform a discretionary

function or duty on the part of a federal agency

or an employee of the Government, whether or

not the discretion involved be abused.

Id. (citing 28 U.S.C. § 2680(a) (2006)). Acts that are

discretionary in nature “involv[e] an element of

judgment or choice.” United States v. Gaubert, 499 U.S.

315, 322 (1991) (internal citation omitted).

App. 40

“The application of the discretionary function

exception involves a two-step analysis. First, the court

must determine whether the conduct at issue concerns

an element of judgment or choice.” Tate v. Camp

Lejeune, No. 4:19–CV–91–D, 2019 WL 7373699, at *2

(E.D.N.C. Dec. 30, 2019) (internal quotation marks and

citations omitted). This requires the court to examine

“whether any federal statute, regulation, or policy

specifically prescribes a course of action” regarding the

underlying alleged conduct. Seaside Farm, Inc. v.

United States, 842 F.3d 853, 858 (4th Cir. 2016). If “a

statute, regulation, or policy prescribes the employee’s

conduct, the conduct cannot be discretionary and thus

is unprotected by the discretionary function exception.”

Wood v. United States, 845 F.3d 123, 128 (4th Cir.

2017) (alternation in original). As for the second step,

if there is no applicable federal statue, regulation, or

policy, “the court must determine whether the decision

was ‘based on considerations of public policy.’” Tate,

2019 WL 7373699, at *2. That is, was the decision

based in some type of social, economic, or political

policy. See Wood, 845 F.3d at 128; see also Seaside

Farm, Inc., 842 F.3d at 858 (finding that courts do not

examine “whether policy considerations were actually

contemplated in making [the] decision.” (internal

quotation marks omitted).) If the decision is based on

public policy, the discretionary function exception

applies, and the government is protected from any tort

action. Id. Courts have generally found the

discretionary function exception applies to bar postdischarge failure-to-warn claims regarding water

contamination at Camp Lejeune. See In re Camp

Lejeune, 263 F. Supp. 3d at 134; Tate, No. 2019 WL

7373699, at *2.

App. 41

First, plaintiff fails to cite an applicable mandatory

regulation which was in place when the government

allegedly failed to warn Clendening. The BUMED

provisions cited by plaintiff, and quoted above, regard

the regulation of the water supply by treatment and

imposed water quality standards at Camp Lejeune.

(Compl., DE # 1, ¶¶ 35, 36; Pl.’s Resp. Opp’n, DE # 23,

at 24.) They in no way direct the government to report

such findings to the public or otherwise warn the

public, at any time. Cf. Washington v. Dep’t of the

Navy, No. 7:19–CV–112–BO, 2020 WL 1230131, at *5

(finding the discretionary function exception did not

apply to bar plaintiff’s claim because “[w]ith respect to

the BUMED’s prohibition on permitting hazardous

chemicals, known and unknown, to enter the water

supply, there was no such choice”). Further, a line in

the 1981 report regarding the 1954 AEA is not a

specific governmental regulation regarding disclosure

of information about potential radioactive material

exposure to prior inhabitants of Camp Lejeune. In the

absence of any legal or regulatory authority, the

government’s decision to disclose, or not disclose, such

information regarding the water supply and Hadnot

Point Fuel Farm involved judgment or choice.

Second, policy-making decisions control the

government’s action of whether to warn former

inhabitants at Camp Lejeune of the contaminants in

the water supply or any radioactive material exposure

from living near the Hadnot Point Fuel Farm.

“Plaintiffs cannot avoid the bar of section 2680(a) by

casting their claims as a failure by the government to

issue warnings of increased health risks.” Minns v.

App. 42

United States, 974 F. Supp. 500, 505 (D. Md. 1997),

aff’d, 155 F.3d 445 (4th Cir. 1998).

[A]scertaining the need for a warning and its

cost, and in determining the group to be alerted,

as well as the content and procedure for such

notice, the government would balance safety

with economic concerns. Deciding whether

health risks justify the cost of a notification

program, and balancing the cost and

effectiveness of a type of warning, are

discretionary decisions covered by § 2680(a).

Id. (internal citation omitted). Therefore, the

discretionary function exception bars plaintiff’s claim

based on the failure-to-warn.

III. CONCLUSION

For the foregoing reasons, the government’s motion

is ALLOWED. Plaintiff’s complaint is hereby

DISMISSED. The Clerk is DIRECTED to close the

case.

This 19 June 2020.

/s/ W. Earl Britt

W. Earl Britt

Senior U.S. District Judge

App. 43

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:19–CV–137–BR

[Filed: June 19, 2020]

_______________________________________

CAROL V. CLENDENING, as Personal )

Representative of the Estate of Gary J.

)

Clendening,

)

)

Plaintiff

)

)

v.

)

)

UNITED STATES OF AMERICA,

)

)

Defendant,

)

_______________________________________)

JUDGMENT

Decision by Court.

This case came before the Honorable W. Earl Britt,

Senior United States District Judge for consideration.

IT IS ORDERED, ADJUDGED AND DECREED the

government’s motion is ALLOWED. Plaintiff’s

complaint is hereby DISMISSED. The Clerk is

DIRECTED to close the case.

App. 44

This Judgment Filed and Entered on June 19, 2020,

with service on:

Nicholas Baker,

Thomas Kellis, II (via CM/ECF Notice of Electronic

Filing)

John Bain

(via CM/ECF Notice of Electronic

Filing)

DATE: June 19, 2020

PETER A. MOORE, JR., CLERK

[SEAL]

/s/ Lisa W. Lee

Lisa W. Lee, Deputy Clerk