19 F.4th 421
4th Cir.2021Background
- Plaintiff (Carol Clendening) sued under the Federal Tort Claims Act for her husband Gary Clendening’s death from adult leukemia, allegedly caused by exposure to contaminated water and toxins while stationed at Camp Lejeune (May 1970–Dec 1971).
- Contamination at Hadnot Point (fuel leaks, volatile organics, Sr‑90) was discovered and investigated in the 1970s–1980s; Camp Lejeune was later placed on the EPA Superfund list and federal remediation and study efforts followed.
- Plaintiff alleged wrongful death, fraudulent concealment, and a post‑service failure to warn about the exposure; suit was filed in 2019.
- The government moved to dismiss under Rule 12(b)(1), asserting the Feres doctrine and the FTCA discretionary‑function exception; the district court dismissed for lack of subject‑matter jurisdiction.
- On appeal the Fourth Circuit affirmed: it held exposure claims barred by Feres; the post‑service failure‑to‑warn claim was not barred by Feres but was barred by the FTCA discretionary‑function exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Feres bars tort claims for on‑base exposure while on active duty | Clendening's exposure was not "incident to service" because it did not serve a military objective | Feres bars claims arising out of activity incident to service (housing/water provided by military) | Feres bars the exposure‑based wrongful death claims |
| Whether this Court should abrogate or narrow Feres | Feres should be overruled/abridged given its harsh results | Court is bound by Supreme Court precedent; cannot overrule Feres | Court declines to abrogate Feres and follows precedent |
| Whether a post‑discharge failure‑to‑warn claim is barred by Feres | Duty to warn arose after discharge so claim is a separate tort not barred by Feres | Government conceded Feres does not bar this post‑service failure‑to‑warn claim | Feres does not bar the post‑service failure‑to‑warn claim |
| Whether the FTCA discretionary‑function exception bars the post‑service failure‑to‑warn claim | Failure to warn was mandatory or non‑discretionary | Decisions about whether, when, and how to warn involve policy judgments and discretion | Discretionary‑function exception applies; failure‑to‑warn claim barred |
Key Cases Cited
- Feres v. United States, 340 U.S. 135 (1950) (FTCA does not apply to injuries "incident to service")
- United States v. Brown, 348 U.S. 110 (1954) (post‑service wrongful acts may fall outside Feres)
- Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531 (1988) (framework for first step of discretionary‑function analysis)
- United States v. Gaubert, 499 U.S. 315 (1991) (presumption that discretionary acts are grounded in policy; second‑step analysis)
- Cioca v. Rumsfeld, 720 F.3d 505 (4th Cir. 2013) (defining the "incident to service" inquiry as whether the injury stems from the military‑service relationship)
- Aikens v. Ingram, 811 F.3d 643 (4th Cir. 2016) (no bright‑line test for "incident to service")
- Wood v. United States, 845 F.3d 123 (4th Cir. 2017) (applies two‑step discretionary‑function test)
- Seaside Farm, Inc. v. United States, 842 F.3d 853 (4th Cir. 2016) (government warning decisions are generally policy‑grounded and thus discretionary)