Perkins v. United States

• Court: District Court, W.D. Washington
• Decided: June 26, 2023
• Docket: 3:22-cv-05701
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TRISTAN ROSE PERKINS, Independent CASE NO. 3:22-cv-05701-RJB 11 Administratrix of Succession of the Decedent GERALDINE RABB PERKINS, ORDER ON THE UNITED 12 STATES’ PARTIAL MOTION TO Plaintiff, DISMISS 13 v. 14 UNITED STATES OF AMERICA, 15 Defendant. 16 This matter comes before the Court on the United States’ Partial Motion to Dismiss for 17 Lack of Subject Matter Jurisdiction. Dkt. 15. The Court has considered the pleadings filed in 18 support of and in opposition to the motion and the file herein. 19 This case arises from the June 6, 2020 death of Geraldine Rabb Perkins from pleural 20 mesothelioma allegedly resulting from para-occupational and environmental exposure to 21 asbestos fibers originating from Puget Sound Naval Shipyard (“PSNS”). Dkt. 1. Her husband, 22 Harang Joseph Perkins, an enlisted Navy Machinist Mate, was stationed at PSNS between 1968 23 and 1974. Id. Mrs. Perkins did his laundry and the family lived in a home less than a mile from 24 1 PSNS. Id. The Plaintiff, Mrs. Perkins’ daughter and administratrix, sues the United States under 2 the Federal Tort Claims Act, (“FTCA”) 28 U.S.C. § 2671 et. seq., for damages. Id. 3 The United States now moves to dismiss a portion of the Plaintiff’s claims asserting that it is 4 entitled to the discretionary function exception to the FTCA’s waiver of sovereign immunity. 5 Dkt. 15. It also maintains that Plaintiff’s claims for failure to warn should be dismissed on

6 alternative grounds. Id. For the reasons provided below, the United States’ motion (Dkt. 15) 7 should be granted, in part, and denied, in part. 8 I. FACTS 9 On September 3, 1968, Mr. Perkins was transferred by the United States Navy to PSNS. 10 Dkt. 15-4 at 3. Mrs. Perkins and their children moved with him and lived near the base in 11 Bremerton, Washington. Dkt. 1 at 6. Mr. Perkins was initially assigned to the security division. 12 Dkt. 15-4 at 16. 13 According to his December 17, 1969 to June 8, 1970 performance evaluation, Mr. 14 Perkins was reassigned to maintenance of the steam heating system of vessels at PSNS. Dkt. 15-

15 4 at 13. This work included “maintain[ing] and repair[ing] steam leaks by replacing lines, 16 thermostats and maintain[ing] all heating and ventilation systems onboard . . .” Dkt. 15-4 at 14. 17 On June 22, 1970, Mr. Perkins was transferred to Danang, Vietnam. Dkt. 15-4 at 3. In 18 May of 1971, Mr. Perkins joined the USS Sacramento (Dkt. 15-4 at 4) while she was at sea. 19 During the time Mr. Perkins was onboard and until August 1971, the USS Sacramento provided 20 support to the United States fleet combat operations in Southeast Asia by providing fuel, 21 ammunition and other supplies to combat units. Dkt. 15-4 at 27. 22 By December 1, 1971, the USS Sacramento was at PSNS in Bremerton, Washington for 23 an overhaul. Dkt. 15-5 at 5. In his June 2, 1971 to December 1, 1971 performance evaluation, it 24 1 was noted that Mr. Perkins was “assigned to the [forward] engine room for maintenance and 2 supervisory duties.” Dkt. 15-4 at 11. The evaluator noted that Mr. Perkins “desires an 3 opportunity to obtain training in areas he feels he is not fully qualified in. [Mr. Perkins] is 4 presently involved in an extensive overhaul and is doing his best to learn, do and lead . . .” Dkt. 5 15-4 at 11. The Navy sent Mr. Perkins to a training school in San Diego, California from

6 January 22, 1972 to April 20, 1972. Dkt. 15-4 at 20. During that time, he completed several 7 classes including those entitled “Boiler Inspection and Automatic Combustion Control,” 8 “Operation of Naval Propulsion Machinery,” “Machinery (Steam Operated Pumps) Operations 9 and Maintenance,” and “Machinist Mate Maintenance.” Dkt. 15-4 at 29. 10 After attending training, Mr. Perkins returned to PSNS and the USS Sacramento. Dkt. 11 15-4 at 9. According to his performance evaluation, dated December 2, 1971 to June 1, 1972, it 12 was noted that after returning from training, he initially was assigned as a training assistant for a 13 month (until around May 20, 1972), but was then transferred to the “POL Division,” “a division 14 of twenty-seven men.” Dkt. 15-4 at 9. There is no indication in the record what the “POL

15 Division” was. His performance evaluation also mentions his work as a “Repair Five” training 16 petty officer. Dkt. 15-4 at 10. 17 On August 12, 1972, Mr. Perkins was admitted to the Naval Hospital in Bremerton, 18 Washington and was not released from the hospital until November 9, 1972. Dkt. 15-4 at 6. The 19 parties do not contend that his hospitalization was related to asbestos exposure. After his release 20 from the hospital, Mr. Perkins was placed on permanent limited duty and worked at PSNS’s 21 Special Services Hobby Shop, bowling alley, and the barracks. Dkt. 15-4 at 6-7. He was 22 transferred to Corpus Christie, Texas in March of 1974 and his family, including Mrs. Perkins, 23 went with him. Dkt. 15-4 at 22. 24 1 Many years later, on February 21, 2020, Mrs. Perkins was diagnosed with pleural 2 mesothelioma. Dkt. 1 at 7. She succumbed to her illness and died on June 6, 2020. Id. Her 3 daughter and administratrix filed this case on September 19, 2022 pursuant to the FTCA. Id. 4 II. DISCUSSION 5 A. STANDARD FOR MOTION TO DISMISS

6 A complaint must be dismissed under Fed. R. Civ. P. 12(b)(1) if, considering the factual 7 allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the 8 Constitution, laws, or treaties of the United States, or does not fall within one of the other 9 enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or 10 controversy within the meaning of the Constitution; or (3) is not one described by any 11 jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v. 12 Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986); see 28 U.S.C. §§ 1331 (federal 13 question jurisdiction) and 1346 (United States as a defendant). 14 The United States, as sovereign, is immune from suit unless it consents to be sued. See

15 United States v. Mitchell, 445 U.S. 535, 538 (1980); Cato v. United States, 70 F.3d 1103, 1107 16 (9th Cir. 1995). The FTCA, the statute upon which this case is brought, is a limited waiver of 17 sovereign immunity. See 28 U.S.C. § 1346 (b). (The FTCA is the exclusive remedy for state 18 law torts committed by federal employees within the scope of their employment. 28 U.S.C. § 19 2679 (b)(1)). “The FTCA was created by Congress with the intent to compensate individuals 20 harmed by government negligence, and as a remedial statute, it should be construed liberally, 21 and its exceptions should be read narrowly.” Terbush v. United States, 516 F.3d 1125, 1135 (9th 22 Cir. 2008). 23 B. DISCRETIONARY FUNCTION EXCEPTION TO FTCA’S WAIVER OF SOVEREIGN IMMUNITY 24 1 Among the exceptions to the FTCA waiver of sovereign immunity is the “discretionary 2 function exception.” It excludes: 3 Any [§ 1346] claim based upon an act or omission of an employee of the 4 Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or 5 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 6 the discretion involved be abused.

7 28 U.S.C. § 2680(a). “The discretionary function exception insulates certain governmental 8 decision-making from judicial second guessing of legislative and administrative decisions 9 grounded in social, economic, and political policy through the medium of an action in 10 tort.” Myers v. U.S., 652 F.3d 1021, 1028 (9th Cir. 2011). The Plaintiff bears the “burden of 11 showing there are genuine issues of material fact as to whether the exception should apply, but 12 the government bears the ultimate burden of establishing that the exception applies.” Schurg v. 13 United States of Am., 63 F.4th 826, 831–32 (9th Cir. 2023). 14 A two-step test is used to determine whether the discretionary function applies. Terbush, 15 at 1129 (citing Berkovitz v. United States, 486 U.S. 531, 536–37 (1988)). In the first step, the 16 court determines “whether challenged actions involve an element of judgment or 17 choice.” Id. “The discretionary element is not met where a federal statute, regulation, or policy 18 specifically prescribes a course of action for an employee to follow.” Id. The inquiry ends if 19 there is such a statute or policy directing mandatory and specific action because there can be no 20 element of discretion when an employee “has no rightful option but to adhere to the 21 directive.” Id. 22 If the challenged actions do involve an element of judgment or choice, then the court 23 turns to the second step in the test in the discretionary function exception test. Terbush, at 1129. 24 1 The second step requires the court to decide “‘whether that judgment is of the kind that the 2 discretionary function exception was designed to shield,’ namely, ‘only governmental actions 3 and decisions based on considerations of public policy.’” Terbush, at 1130 (quoting Berkovitz at 4 536-37). “More specifically, if the judgment involves considerations of social, economic, or 5 political policy, the exception applies.” Nieves Martinez v. United States, 997 F.3d 867, 876 (9th

6 Cir. 2021). 7 In its partial motion to dismiss, the government argues that the following claims are 8 barred by the discretionary function exception: (a) all claims that the Navy failed to provide Mr. 9 Perkins with protective clothing, equipment, laundry service and/or facilities to shower or 10 change, (b) all claims that the Navy failed to warn of para-occupational and environmental 11 asbestos exposure hazards, and (c) all claims arising before March 1970. Dkt. 15. The Plaintiff 12 concedes (c) that the United States is immune from all claims arising before March 1970. Dkt. 13 16 at 1 n.1. Accordingly, the United States’ partial motion to dismiss claims arising before 14 March 1970 (Dkt. 15) should be granted. The Plaintiff opposes the motion for claims based on

15 the remaining acts described in (a) and (b). Dkt. 16. Each of these acts (a) and (b) will be 16 assessed below using the two step process to determine whether the discretionary function 17 applies. 18 1. Whether PSNS’s Acts Were Discretionary? 19 The Plaintiff points to three sources of mandatory asbestos directives she contends the 20 Navy was required to follow: the March 1970 NAVMAT P-5100 (filed in the record at Dkt. 17- 21 28), the February 9, 1971 Navy Ship Systems Command’s NAVSHIPS Instruction 5100.26 22 (filed in the record at Dkt. 17-29), and the July 1972 measures incorporated into Chapter 9390 of 23 24 1 the Naval Ships Technical Manual (filed in the record at Dkt. 15-17).1 Dkt. 16. Again, if there is 2 a mandatory directive and the government failed to follow it, the inquiry ends and the exception 3 does not apply. Nieves Martinez at 876. 4 The Plaintiff argues in her response that the Navy failed to show that it adhered to its 5 mandatory asbestos containment policies. Dkt. 16. The government properly notes that its

6 motion is limited only to certain activities: (a) that of the Navy’s failure to provide Mr. Perkins 7 with protective clothing, equipment, laundry and/or facilities to shower and change and (b) the 8 Navy’s failure to warn of the danger of para-occupational or environmental exposures to 9 asbestos. This opinion is limited to those actions that are the subject of the motion (a) and (b) 10 and does not reach any of the Plaintiff’s other theories of liability. 11 a. Navy’s Failure to Provide Mr. Perkins with Protective Clothing, Equipment, Laundry Service and/or Facilities to Shower or Change 12 The March 1970 NAVMAT P-5100 directives explain that “[t]he most significant 13 exposure to asbestos dust occurs during the ripout or tearout of asbestos materials aboard a ship. 14 Exposures also result during the production and installation of asbestos containing materials.” 15 Dkt. 17-28 at 22. In regard to the provision of protective clothing, these directives provided, in 16 part: 17 2(c)(2) Personnel engaged in ripout operations will be provided and required to 18 wear clean coveralls at the beginning of each shift. Prior to removing the dust respirator, used coveralls shall be removed. Clean or single-use coveralls shall be 19 provided daily.

20 Dkt. 17-28 at 23. Further, it provides that “mandatory precautions contained in this publication 21 are characterized by use of the words shall, must, prohibited. Precautions which are not 22 1 The Plaintiff points to other sources of mandatory asbestos control measures but these measures are dated after Mr. 23 Perkins left the USS Sacramento on August 12, 1972. Dkt. 16 at 16 n. 61. On November 8, 1972, Mr. Perkins was released from the hospital and was assigned permanent light duty at PSNS’s hobby shop, bowling alley and barracks 24 until he left PSNS for Texas. 1 mandatory but are recommended or advisory in nature are indicated by use of the words should, 2 will, may.” Dkt. 17-28 at 21. 3 In July 1972, the Navy incorporated certain mandatory asbestos control measures into 4 Chapter 9390 of the Naval Ships Technical Manual. As it relates to the provision of protective 5 clothing, Chapter 9390.3 of the Naval Ships Technical Manual (“Precautions for Dust Producing

6 Materials (Particularly Asbestos)”) provided the following: “b. Workers shall be supplied clean 7 coveralls or disposable coveralls for each work shift involving “rip-out” of insulation.” Dkt. 15- 8 17 at 4. 9 These two regulations constitute mandatory action on the part of the Navy: if Mr. Perkins 10 was involved in the “ripout” or “tearout” of asbestos, the government was required to provide 11 him protective clothing. This challenged action (provision of protective clothing if he did) did 12 not involve an element of choice. Terbush at 1129. The government does not assert that it 13 provided Mr. Perkins protective clothing but contends that as a Machinist Mate, Mr. Perkins was 14 not engaged in the “ripout” or “tearout” of asbestos. The government fails to cite any authority

15 for this proposition. It points to general studies, but does not demonstrate that Mr. Perkins did 16 not “ripout” or “tearout” asbestos. Information from Mr. Perkins’ performance evaluations leads 17 to a reasonable inference that he was engaged in the “ripout” or “tearout” of asbestos after March 18 of 1970. See e.g. Dkt. 15-4 at 13-14 (from December 17, 1969 to June 8, 1970, Mr. Perkins was 19 assigned to maintenance of the steam heating system, doing work that included “maintain[ing] 20 and repair[ing] steam leaks by replacing lines, thermostats and maintain[ing] all heating and 21 ventilation systems onboard . . .”) Parties do not dispute that asbestos insulation was used 22 throughout those systems. At a minimum, there are genuine issues of material fact as to whether 23 Mr. Perkins was involved in “ripout” or “tearout” of asbestos. Moreover, the government’s 24 1 position, that Mr. Perkins was not involved in “ripout” or “tearout” of asbestos, is particularly 2 troubling because it failed to respond to discovery requests from Mr. Perkin’s family about his 3 actual duties and assignments by raising the defense of discretionary function in its discovery 4 response. 5 “The discretionary element is not met where a federal statute, regulation, or policy

6 specifically prescribes a course of action for an employee to follow.” Terbush at 1129. The 7 United States has failed to demonstrate that the step one, discretionary element, is met as to the 8 provision of protective clothing for Mr. Perkins. 9 In contrast, the United States has carried its burden on step one as to its failure to provide 10 Mr. Perkins with other protective equipment (like dust respirators), and/or laundry service and/or 11 facilities to shower or change. While the regulations the Plaintiff points to do arguably require 12 the provision of dust respirators, she fails to demonstrate that the failure to provide Mr. Perkins a 13 respirator caused injury to Mrs. Perkins because her injury is alleged to be connected to doing his 14 laundry and to environmental exposure from being downwind of PSNS. There is no plausible

15 connection with the Navy’s failure to provide him a respirator and her injury from doing his 16 laundry or living downwind. Violated rules or policies must have a causal connection to the 17 alleged FCTA injury for the court to have jurisdiction over the claim. See Dichter-Mad Family 18 Partners, LLP v. United States, 709 F.3d 749, 751 (9th Cir. 2013)(finding alleged violations of 19 policies lack a causal relationship to plaintiffs’ alleged injuries required to establish jurisdiction 20 so certain FTCA claims were properly dismissed). The same is true of the Navy’s failure to 21 provide Mr. Perkins a place to shower or change. There is no connection to the Navy’s failure to 22 provide Mr. Perkins a place to shower or change and Mrs. Perkin’s contracting mesothelioma 23 from doing his laundry or being downwind from PSNS. To the extent the Plaintiff bases her 24 1 claims on the government’s failure to provide Mr. Perkins other protective equipment like dust 2 respirators or a place to shower or change, the claim should be dismissed for lack of jurisdiction. 3 While the Navy’s failure to provide Mr. Perkins laundry services is arguably connected to 4 her injury from doing his laundry, none of the regulations to which the Plaintiff points required 5 the government to provide Mr. Perkins with laundry services. The June 7, 1973 BUMED

6 Instruction 6260.14, which covers the laundering of asbestos contaminated clothing, came out 7 after Mr. Perkin’s hospitalization in the fall of 1972 and permanent transfer to light duty in 8 PSNS’s Hobby Shop, bowling alley, and barracks. To the extent the Plaintiff bases her claims 9 on the Navy’s failure to provide Mr. Perkin’s laundry services, this choice was discretionary and 10 so, the analysis then turns to whether that decision is a policy based decision. Step two on this 11 issue is below in Section B. 2. a. 12 b. Navy’s Failure to Warn of Para-Occupational and Environmental Asbestos Exposure Hazards 13 As it relates to warnings, an examination of each of the sources of mandatory conduct to 14 which the Plaintiff points is unavailing for her on step one of the discretionary decision analysis. 15 The March 1970 NAVMAT P-5100 required, 16 2(c)(3) Shipboard “ripout” of insulation shall be accomplished in designated 17 exclusion areas. Only personnel whose work requires their presence shall be permitted in such areas. All personnel entering such areas shall be made aware of 18 the hazards. Ships’ force (crewmen) and others accomplishing essential duties in the removal area are required to wear approved respirators. 19 Dkt. 17-28 at 23. The February 1971 Navy Ship Systems Command’s NAVSHIPS Instruction 20 5100.26 required that: 21 3(b)(3) The area around the installation procedures should be isolated when 22 possible. Adequate warning signs (enclosure (1)) will be posted. Only persons whose work requires their presence should be permitted in such areas. If airborne 23 asbestos dust is present, they will wear Bureau of Mines approved respirators for dust or leave the area. 24 1 Dkt. 17-29 at 5. The July 1972 Chapter 9390.3 of the Naval Ships Technical Manual 2 (“Precautions for Dust Producing Materials (Particularly Asbestos)”) provided the following: 3 c. Shipboard “rip-out” of insulation shall be accomplished in designated areas. 4 Only personnel whose work requires their presence shall be permitted in such areas. All personnel entering these areas shall be advised of the hazard. Crewmen 5 and others accomplishing essential duties in the removal area are required to wear respirators. 6 Dkt. 15-17 at 4. 7 None of these regulations required the Navy to warn of the danger of para-occupational 8 or environmental exposure to asbestos - the alleged causes of the Plaintiff’s injuries. Further, the 9 June 7, 1973 BUMED Instruction 6260.14, requiring that “anyone who gives contaminated 10 clothing to another person for laundering shall inform such person of the requirements to prevent 11 the release of asbestos . . .” came after Mr. Perkin’s transfer to light duty in the fall of 1972. 12 Accordingly, the government has shown that there was no mandatory action required, so it had 13 discretion on whether to warn of the danger of para-occupational or environmental exposures to 14 asbestos prior to the fall of 1972. It has met step one on the “failure to warn of these dangers” 15 claim. Analysis on step two follows. 16 2. Whether the Acts Involved Considerations of Social, Economic or Political 17 Policies?

18 For those activities that the government carried its burden on at step one (the 19 governments’ failure to provide Mr. Perkins laundry services and its failure to warn of the danger 20 of para-occupational or environmental exposures), the next step is determining whether the 21 government’s failures involved the kind of decisions that the discretionary function exception 22 was intended to shield - only those decisions involving “considerations of social, economic or 23 political policies.” Nieves Martinez at 876. 24 1 a. Navy’s Failure to Provide Mr. Perkins Laundry Services

2 There was a legitimate, competing policy consideration underlying the government's 3 failure to provide Mr. Perkins with laundry services – its felt it needed “to address simultaneous 4 and more urgent safety concerns” presented by a range of hazards on PSNS it perceived to exist 5 at the time. Nanouk v. United States, 974 F.3d 941, 949 (9th Cir. 2020). The government points 6 out that its decisions regarding how to manage construction and repair work on vessels like the 7 USS Sacramento are susceptible to policy analysis because at the time, during the Vietnam War, 8 it was faced with numerous workplace safety decisions involving many potential hazards, 9 including asbestos. Dkt. 15. It contends that it prioritized its actions based on the hazards it 10 perceived at the time. Id. “Where there is even one policy reason why officials may decide not 11 to take a particular course of action to address a safety concern, the exception applies.” Chadd v. 12 United States, 794 F.3d 1104, 1112 (9th Cir. 2015). 13 The Plaintiff argues that the government failed to show that it actually made the decision 14 not to implement safety requirements based on policy considerations. This argument is

15 unavailing. “The challenged decision need not be actually grounded in policy considerations, 16 but must be, by its nature, susceptible to a policy analysis.” Schurg v. United States of Am., 63 17 F.4th 826, 834 (9th Cir. 2023). The government has carried its burden and demonstrated that its 18 failure to provide laundry services to Mr. Perkins was a discretionary decision based on public 19 policy. 20 b. Navy’s Failure to Warn of Para-Occupational and Environmental Asbestos Exposure Hazards 21 The government has shown that its failure to warn of para-occupational and 22 environmental asbestos exposure hazards was based on competing public policy concerns. 23 24 1 Generally, “a decision not to warn of a specific, known hazard for which the acting agency is 2 responsible is not the kind of broader social, economic or political policy decision that the 3 discretionary function exception is intended to protect.” Sutton v. Earles, 26 F.3d 903, 910 (9th 4 Cir. 1994). 5 The government here, however, has shown that it did not fully know of the danger of

6 para-occupational or environmental exposure of asbestos at the time. It properly points out that 7 policy considerations are implicated in the decision of whether to issue warnings or not at the 8 time including who should be warned, the content of the warning, form of the warning, impact of 9 the warning on the recipient, and the impact on the Navy’s mission. This would require 10 “difficult judgments balancing the magnitude of the risk from [para-occupational and 11 environmental asbestos exposure] — of which there was only fragmentary knowledge—against 12 the risks and burdens of a public program. Those risks included the potential consequences of 13 creating public anxiety and the health hazards inherent in the medical responses to the warning.” 14 In re Consol. U.S. Atmospheric Testing Litig., 820 F.2d 982, 997 (9th Cir. 1987). The

15 government’s decision to not warn of para-occupational or environmental exposure to asbestos 16 was sufficiently grounded in public policy to warrant application of the discretionary function 17 exception. 18 C. MISREPRESENTATION EXCEPTION TO FTCA’S WAIVER OF SOVEREIGN IMMUNITY 19 The government argues that, in the alternative, the Plaintiff’s failure to warn claims 20 should be dismissed based on 28 U.S.C. § 2680(h), which provides that “[a]ny claims arising out 21 of misrepresentation [or] deceit” are excluded from the FTCA’s waiver of sovereign immunity. 22 Dkt. 15. The Court need not reach this argument because, as above, the government’s decision 23 24 1 not to warn of para-occupational or environmental asbestos exposure hazards is protected by the 2 discretionary function exception. 3 D. CONCLUSION 4 The United States’ partial motion to dismiss should be granted, in part, and denied, in 5 part. This opinion is limited to the specific conduct by the government that was the subject of

6 this motion. It does not cover other allegedly negligent conduct the Plaintiff alleges the Navy 7 engaged in that caused Mrs. Perkin’s injuries, like its failure to properly contain asbestos or to 8 keep unnecessary people out of asbestos removal areas. 9 III. ORDER 10 Therefore, it is hereby ORDERED that: 11 The United States’ Partial Motion to Dismiss for Lack of Subject Matter Jurisdiction 12 (Dkt. 15) IS: 13  GRANTED AS TO: 14 o Claims based on events arising before March 1970; claims based on the

15 Navy’s failure to provide Mr. Perkins with protective equipment like a 16 dust respirator, laundry service, and/or a place to shower and/or change; 17 and claims based on the Navy’s failure to warn of para-occupational and 18 environmental asbestos exposure hazards; 19 o These claims ARE DISMISSED; 20  DENIED AS TO: 21 o Claims based on the Navy’s failure to provide Mr. Perkins protective 22 clothing. 23 24 1 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 2 to any party appearing pro se at said party’s last known address. 3 Dated this 26th day of June, 2023. A 4

5 ROBERT J. BRYAN United States District Judge 6

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