United States District Court, E.D. North Carolina, Eastern Division
C. Dever III United States District Judge
November 6, 2019, defendant moved to dismiss plaintiff Alice
Tate's ("Tate" or "plaintiff")
complaint for lack of subject matter jurisdiction and failure
to state a claim upon which relief can be granted [D.E. 11]
and filed a memorandum in support [D.E. 11-1]. See
Fed.R.Civ.P. 12(b)(1), (6). On November 6, 2019, the court
notified Tate about the motion, the response deadline, and
the consequences of failing to respond [D.E. 12]. See
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975) (per curiam). Tate did not respond. As explained below,
the court grants defendant's motion to dismiss.
alleges that her family ingested water from public utilities
at Camp Lejeune in Jacksonville, North Carolina, which caused
her late husband's death, her daughter's sickness,
and her sickness. See Compl. [D.E. 1-1] 2. In 2001, Tate
submitted three administrative claims forms requesting
compensation for those injuries on behalf of herself, her
daughter Lanira Murphy, and her late husband Lamont
Murphy. See Def. Ex. 2-4 [D.E. 11-2, 11-3, 11-4].
Tate reports that she ingested water at Camp Lejeune from
1984 to 1987 while Lamont Murphy served on Camp Lejeune.
See Def. Ex. 2 [D.E. 11-2] 4, 7. Tate claims that
the water caused her to suffer from cancer. See Id.
at 4-5; cf. Compl. 4. Lanira Murphy reports ingesting the
water at Camp Lejeune while in Tate's womb during the
same time period. See Def. Ex. 3 [D.E. 11-3] 6. As a result,
Lanira Murphy reports numerous illnesses, that she "was
very sick as a child," and that she still suffers from
"chest pains." See Id. at 1, 9; cf. Compl.
3. Lanira Murphy's form also states that Lamont Murphy
died as a result of ingesting the water supply on Camp
Lejeune. See Def. Ex.3 [D.E. 11-3] 3. Tate seeks
relief for the death of her husband, for her daughter's
sickness, and for her own sickness. See Compl. 2-6.
motion to dismiss under Rule 12(b)(1) of the Federal Rules of
Civil Procedure tests subject-matter jurisdiction, which is
the court's "statutory or constitutional power to
adjudicate the case." Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 89 (1998) (emphasis
omitted); see Holloway v. Pagan River Dockside Seafood.
Inc., 669 F.3d 448, 453 (4th Cir. 2012); Constantine
v. Rectors & Visitors of George Mason Univ., 411
F.3d 474.479-80 (4th Cir. 2005). A federal court "must
determine that it has subject-matter jurisdiction over the
case before it can pass on the merits of that case."
Constantine, 411 F.3d at 479-80. As the party
invoking federal jurisdiction, Tate bears the burden of
establishing that this court has subject-matter jurisdiction
in this action. See, e.g., Steel Co., 523
U.S. at 104; Evans v. B.F Perkins Co., 166 F.3d 642,
647 (4th Cir. 1999); Richmond. Fredericksburg &
Potomac R.R. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991). In considering a motion to dismiss for lack of
subject-matter jurisdiction, the court may consider evidence
outside the pleadings without converting the motion into one
for summary judgment See. e.g., Evans. 166 F.3d at
647. A court should grant a motion to dismiss under Rule
12(b)(1) "only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as
a matter of law." Id. (quotation omitted).
whether subject-matter jurisdiction exists over Tate's
claims, Congress has not waived sovereign immunity for
lawsuits under the Federal Tort Claims Act ("FTCA")
against the Department of the Navy in its own name. See 28
U.S.C. § 2679 (a); F.D.I.C. v. Meyer, 510U.S.
471, 475-77 (1994); Kerns v. United States, 585 F.3d
187, 193-94 (4th Cir. 2009). Moreover, Tate's claim
against the United States fails to allege a violation of
North Carolina law as required under 28 U.S.C. §
1346(b). See, e.g., Meyer, 510 U.S. at 477.
Specifically, Tate's seeks to bring suit in her
individual capacity and not as the personal representative or
collector of the decedent, as required under the North
Carolina Wrongful Death Act. See N.C. Gen. Stat.§
28A-18-2; see Boston v. Davis, No. 3:11cv450, 2012
WL 748675, at *1-2 (W.D. N.C. Mar. 8, 2012) (unpublished);
Estate of Tallman v. City of Gastonia, 200 N.C.App.
13, 15, 682 S.E.2d 428, 430 (2009); Westinghouse v.
Hair, 107 N.C.App. 106, 108, 418 S.E.2d 532, 533 (1992).
Furthermore, the Feres doctrine bars Tate's wrongful
death. claim because Lamont Murphy's alleged exposure to
contaminated water was incident to his military service.
See Feres v. United States, 340 U.S. 135,
146 (1950); see also Stencel Aero Eng' g Corp. v.
United States, 431 U.S. 666, 670 (1977); Stewart v.
United States, 90 F.3d 102, 105-06 (4th Cir. 1996);
In re Camp Lejeune N.C. Water Contamination Litig.,
263 F.Supp.3d 1318, 1341-43 (N.D.Ga.2016)("In re
Camp Lejeune"), aff'd, 774Fed.Appx.564
(11th.Cir. 2019) (per curiam) (unpublished). As for
Tate's claim on behalf of her adult daughter, Tate cannot
bring, in her own name, a claim for alleged injuries to her
daughter. See, e.g., McNamara v. Kerr-McGee Chemical
Corp., 328 F.Supp. 1058, 1060-61 (E.D. N.C. 1971);
Crowell v. Chapman, 306 N.C. 540, 543-44, 293 S.E.2d
767, 770 (1982); cf. Stem v. Cinoman, 221 N.C.App.
231, 233, 728 S.E.2d 373, 374-75 (2012).
the FTCA's discretionary function exception bars
Tate's claims. The exception provides governmental
immunity from "[a]ny claim . . . based upon the exercise
or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the
discretion involved be abused." 28 U.S.C. §
2680(a); see Sanders v. United States, 937 F.3d 316,
327 (4th Cir. 2019). The application of the discretionary
function exceptions involves a "two-step analysis."
Wood v. United States, 845 F.3d 123, 128 (4th Cir.
2017); see Sanders, 937 F.3d at 328. First, the
court must determine whether the conduct at issue concerns
"'an element of judgment or choice.'"
Wood, 845 F.3d at 128 (quoting Berkowitz by
Berkowitz v. United States, 486 U.S. 531, 536 (1988));
see Sanders, 937 F.3d at 328. Second, if the conduct
does involve judgment or choice, then the court must
determine whether the decision was "based on
considerations of public policy." Wood, 845
F.3d at 128 (quoting Berkowitz, 486 U.S. at 537);
see Sanders, 937 F.3d at 328.
the first criterion, Tate fails to cite any mandatory
language that prescribes a specific course of conduct that a
government employee failed to follow concerning water
contamination at Camp Lejeune. Thus, the conduct necessarily
involves a "discretionary" judgement or choice.
Moreover, Tate would not be able to make such a showing, even
with the benefit of counsel and discovery. See In re Camp
Lejeune, 263 F.Supp.3d at 1341-57. Additionally, Tate
also fails to allege any facts to show that the
military's decisions regarding the use, disposal, and
regulation of chemicals in the Camp Lejeune water supply,
along with its investigation, remediation, and notification
decisions concerning the water supply, were not based on
considerations of public policy. Decisions involving use and
disposal of chemicals, together with related decisions
regarding environmental investigation and remediation,
require consideration of multiple policy factors, including
"national security, resource constraints, and
environmental impact." Pieper v. United States,
713 Fed.Appx. 137, 140 (4th Cir. 2017) (per curiam)
(unpublished) (quotation omitted); see Oxendine v. United
States, No. 3:08-4036-CMC-PJG, 2009 WL 3757517, *5
(D.S.C. Nov. 9, 2009) (unpublished); cf In re Clamp
Lejeune, 263 F.Supp.3d at 1341-57. Accordingly, the
court does not have subject-matter jurisdiction over the
claims in Tate's complaint.
the court GRANTS defendant's motion to dismiss [D.E. 11]