Carol Clendening v. United States

19 F.4th 421

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 30, 2021
• Docket: 20-1878
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1878

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 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.

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

1 Citations to the J.A. refer to the Joint Appendix filed by the parties in this appeal.

2 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.

3 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 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)

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 “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.”

5 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 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

6 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] Court has embarked on a course dedicated to broadening

the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel

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.”).

7 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

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).

8 “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

9 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.

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).

10 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

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.

11 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 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

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).

12 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 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”).

13 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.

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).

14 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 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).

15 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.

16 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.” 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.

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

17 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.

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 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.

18 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 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

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 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.

19 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

20 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

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”).

21 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

22 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 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

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).

23 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

24 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