CAROL V. CLENDENING, as Personal Representative of the Estate of Gary J. Clendening v. UNITED STATES OF AMERICA
No. 20-1878
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
November 30, 2021
PUBLISHED. Argued: September 21, 2021. 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)
Before AGEE and WYNN, Circuit Judges, and Frank W. VOLK, United States District Judge for the 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.
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
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 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
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,
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 “discretionary-function” exception,
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.”
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.
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 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.
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]
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. 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 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 off-duty hours, but not during a period of leave or furlough.“); 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) (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 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 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
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 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
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 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 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 discretionary-function 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
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 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-to-warn 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.”
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.
1.
The
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 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
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 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,” 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
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 presence of toxins, carcinogens, or poisons falls under the discretionary function
exception to the [Federal Tort Claims Act]‘s waiver of sovereign immunity.”14 Sanchez 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
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 Lejeune in 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 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.”
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
AFFIRMED