Feindt v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
PATRICK FEINDT, JR., et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 22-00397 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART
THE REMAINDER OF DEFENDANT’S PARTIAL
MOTION TO DISMISS FIFTH AMENDED COMPLAINT [ECF NO. 210]
Before the Court is Defendant United States of
America’s (“Defendant” or “United States”) Partial Motion to
Dismiss Fifth Amended Complaint [ECF No. 210] (“Motion”), filed
on December 7, 2023. [Dkt. no. 213.] Plaintiffs filed their
memorandum in opposition on January 4, 2024, and Defendant filed
its reply on January 12, 2024. [Dkt. nos. 219, 228.] This matter
came on for hearing on February 2, 2024. On February 14, 2024,
this Court issued an order granting in part Defendant’s Motion,
insofar as the portions of Counts I and II alleging failure to
properly test water for petroleum were dismissed with prejudice
(“2/14 Order”). [Dkt. no. 275.1] The Court directed further
briefing addressing the second prong of the discretionary
function exception analysis as applied to the portion of
1 The 2/14 Order is also available at 2024 WL 624021.
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Count II alleging the failure to properly remediate affected
homes. 2/14 Order, 2024 WL 624021 at *9. Defendant filed its
supplemental brief on February 28, 2024 (“Supplemental Brief”),
and Plaintiffs filed their supplemental brief in response on
March 6, 2024 (“Supplemental Response”). [Dkt. nos. 288, 308.]
For the reasons set forth below, the remainder of the Motion is
granted in part and denied in part. The Motion is denied as to
the portion of Count II regarding Defendant’s alleged negligent
failure to adhere to the Single Family Home Flushing Protocol
and Standard Operating Procedures (collectively “SOP”) during
its government-personnel-conducted flushing program in
Plaintiffs’ homes. The Motion is granted insofar as the
remaining portion of Count II alleging failure to properly
remediate affected homes is dismissed with prejudice.
BACKGROUND
This case arises out of the May 6 and November 20,
2021 fuel leaks from the United States Navy’s (“the Navy”) Red
Hill Bulk Fuel Storage Facility on Joint Base Pearl Harbor-
Hickam (“Red Hill” and “JBPHH”). [Fifth Amended Complaint, filed
12/1/23 (dkt. no. 210), at pgs. iii, 1; ¶¶ 4, 9.] Relevant to
this Motion, Plaintiffs allege federal officers failed to
properly remediate affected homes. [Id. at ¶ 481.j.]
Plaintiffs allege “[t]he Navy’s initial flushing
program asked residents to run their water, and flush toilets
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and other devices to remove contaminants,” which compounded the
harm because “[s]ome residents reported that chemical fumes
became overwhelming when they started flushing.” [Id. at ¶ 51.]
Plaintiffs contend government personnel flushing the homes did
so negligently, causing further harm by leaving water damage and
toxicity behind. Plaintiffs allege most flushing teams emptied
water heaters into yards, adding toxins to the soil which
infiltrated ground water. [Id.] Plaintiffs further allege “[t]he
Navy’s flushing efforts did not include replacement of plastics
or water heaters. Nor did the flushing effort include scrubbing
the air of the air contaminants — a common practice in
remediation.” [Id. at ¶ 58.] Finally, “[o]nce [Defendant]
cleared neighborhoods as ‘safe,’ families were forced to move
back into the homes that made them sick,” and upon moving back
into their homes many got sick and/or reported that there was
fuel sediment at the bottom of water heaters and that “they
continued to get burned during showers and experience[d] other
symptoms.” [Id. at ¶ 59.]
Defendant’s Motion asks this Court to dismiss the
following claims from Plaintiff’s Fifth Amended Complaint for
lack of subject matter jurisdiction: (1) the portion of Count II2
2 In Count II, Plaintiffs’ negligent undertaking claim,
Plaintiffs allege “[f]ederal officers breached the duty to
exercise ordinary care after an undertaking” because, among
(. . . continued)
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alleging failure to properly remediate affected homes and
(2) the portions of Counts I and II3 alleging failure to test
water samples for petroleum. Defendant argues it is entitled to
sovereign immunity pursuant to the Federal Tort Claims Act’s
(“FTCA”) discretionary function exception codified at Title 28
United States Code Section 2680(a). [Motion at 2.] The 2/14
Order dismissed with prejudice the portions of Counts I and II
alleging failure to test water samples for petroleum, 2024 WL
624021, at *8, and found that the first prong of the
discretionary function met regarding the portion of Count II
alleging failure to properly remediate affected homes, id. at
*7. This Order therefore addresses the second prong of the
discretionary function exception regarding the portion of
Count II alleging failure to properly remediate affected homes.
other things, “[o]fficers failed to properly remediate affected
homes.” [Fifth Amended Complaint at ¶ 481.j.]
3 In Count I, Plaintiffs’ negligence claim, Plaintiffs
allege “[f]ederal officers breached the duty to exercise
ordinary care at Red Hill” because, among other things,
“[o]fficers failed to test water samples for petroleum and
destroyed water samples from affected homes.” [Fifth Amended
Complaint at ¶ 467.j.] In Count II, Plaintiffs’ negligent
undertaking claim, Plaintiffs allege “[f]ederal officers
breached the duty to exercise ordinary care after an
undertaking” because, among other things, “[o]fficers failed to
test water samples for petroleum and destroyed water samples
from affected homes.” [Id. at ¶ 481.k.]
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STANDARD
Federal Rule of Civil Procedure 12(b)(1) authorizes a
defendant to move for dismissal of an action for “lack of
subject-matter jurisdiction[.]” “A Rule 12(b)(1) jurisdictional
attack may be facial or factual.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted).
“A ‘facial’ attack accepts the truth of the plaintiff’s
allegations but asserts that they are insufficient on their face
to invoke federal jurisdiction.” Leite v. Crane, 749 F.3d 1117,
1121 (9th Cir. 2014) (citation and internal quotation marks
omitted). “A ‘factual’ attack . . . contests the truth of the
plaintiff’s factual allegations, usually by introducing evidence
outside the pleadings.” Id. (citations omitted).
“In resolving a factual attack on
jurisdiction, the district court may review
evidence beyond the complaint without converting
the motion to dismiss into a motion for summary
judgment.” Safe Air, 373 F.3d at 1039. The court
“need not presume the truthfulness of the
plaintiff[’s] allegations,” White v. Lee, 227
F.3d 1214, 1242 (9th Cir. 2000), and may “resolve
factual disputes concerning the existence of
jurisdiction,” McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988). “Once the moving
party has converted the motion to dismiss into a
factual motion by presenting affidavits or other
evidence properly brought before the court, the
party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden
of establishing subject matter jurisdiction.”
Savage v. Glendale Union High Sch., Dist.
No. 205, 343 F.3d 1036, 1040 (9th Cir. 2003).
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Shahim v. United States, Case No. 2:21-cv-02401-ODW(AGR), 2022
WL 1644440, at *2 (C.D. Cal. May 24, 2022) (alteration in
Shahim) (footnote omitted). Whether the challenge is facial or
factual, the government bears the burden of proving the
discretionary function exception applies. Terbush v. United
States, 516 F.3d 1125, 1128 (9th Cir. 2008).
When “the jurisdictional issue and substantive claims
are so intertwined that resolution of the jurisdictional
question is dependent on factual issues going to the merits,”
the district court uses a summary judgment standard. Autery v.
United States, 424 F.3d 944, 956 (9th Cir. 2005) (quotation
marks and citation omitted). “Such an intertwining of
jurisdiction and merits may occur when a party’s right to
recovery rests upon the interpretation of a federal statute that
provides both the basis for the court’s subject matter
jurisdiction and the plaintiff’s claim for relief.” Williston
Basin Interstate Pipeline Co. v. An Exclusive Gas Storage
Leasehold & Easement in the Cloverly Subterranean, Geological
Formation, 524 F.3d 1090, 1094 (9th Cir. 2008) (citation
omitted).
Here, Defendant attached two declarations and an
exhibit to its Motion, thereby “convert[ing] the motion to
dismiss into a factual motion by presenting affidavits or other
evidence properly brought before the court[.]” See Safe Air for
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Everyone, 373 F.3d at 1039 (quotation marks and citation
omitted). Further, the questions pertinent to the application of
the discretionary function exception – (1) were federal
employees exercising discretion in conducting in-home
remediation in a way that implicated policy, and (2) were
federal employees exercising discretion in conducting testing
the water in a way that implicated policy – are not intertwined
with the merits of the claims at issue in the Motion (whether
Defendant was negligent in conducting in-home remediation and
testing). See Fifth Amended Complaint at ¶¶ 467.j, 481.j, 481.k.
Therefore, the Motion may be properly brought as a Rule 12(b)(1)
motion and need not be treated as a summary judgment motion.
DISCUSSION
“An action can be brought by a party against the
United States only to the extent that the Federal Government
waives its sovereign immunity. If sovereign immunity has not
been waived, the court must dismiss the case for lack of subject
matter jurisdiction.” Esquivel v. United States, 21 F.4th 565,
572–73 (9th Cir. 2021) (citations and internal quotation marks
omitted).
The FTCA generally waives the United States’
sovereign immunity and permits tort suits for
damages against the government “in the same
manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C.
§ 2674; Esquivel v. United States, 21 F.4th 565,
572–73 (9th Cir. 2021). Specifically, the FTCA
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grants district courts jurisdiction over civil
actions for money damages for negligent or
wrongful acts or omissions of government
employees acting in the scope of employment
“under circumstances where the United States, if
a private person, would be liable to the claimant
in accordance with the law of the place where the
act or omission occurred.” 28 U.S.C.
§ 1346(b)(1); Esquivel, 21 F.4th at 572–73.
Agustin v. United States, Civ. No. 22-00167 JMS-WRP, 2023 WL
160076, at *3 (D. Hawai`i Jan. 11, 2023) (footnote omitted).
However, the United States did not waive sovereign immunity for
all tort claims: the discretionary function exception of
Section 2680(a) is an important exception at issue here.
“The government does not waive immunity for tort
claims if the alleged tortfeasor was performing a discretionary
function or duty when he or she injured the plaintiff. This is
true even if the employee abused that discretion.” Lam v. United
States, 979 F.3d 665, 672 (9th Cir. 2020) (citing 28 U.S.C.
§ 2680(a)). The FTCA’s discretionary function exception provides
that the FTCA does not apply to
[a]ny claim based upon an act or omission of an
employee of the 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 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). The discretionary function exception is
meant “to prevent judicial ‘second-guessing’ of legislative and
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administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.”
United States v. S.A. Empresa De Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 814 (1984). Therefore, when the
discretionary function exception applies, “the United States has
not waived its sovereign immunity, and the district court lacks
subject matter jurisdiction over a plaintiff’s claim.” Lam, 979
F.3d at 672 (citation omitted). Defendant has the burden to
prove the discretionary function exception applies. See id. at
673.
To determine whether the discretionary function
exception bars a claim, courts use a two-part test: (1) the
conduct must be discretionary, meaning it must “involve[] an
element of judgment or choice”; Berkovitz v. United States, 486
U.S. 531, 536 (1988); and (2) the discretion must be
“susceptible to social, economic, or political policy analysis,”
Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005)
(citation omitted). Further,
When established governmental policy, as
expressed or implied by statute, regulation, or
agency guidelines, allows a Government agent to
exercise discretion, it must be presumed that the
agent’s acts are grounded in policy when
exercising that discretion. For 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. The focus of the inquiry is
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not on the agent’s subjective intent in
exercising the discretion conferred by statute or
regulation, but on the nature of the actions
taken and on whether they are susceptible to
policy analysis.
United States v. Gaubert, 499 U.S. 315 (1991). Put slightly
differently, “to avoid dismissal, a plaintiff must allege facts
that support a finding that the government employee’s negligence
was not grounded in policy judgments.” Lam, 979 F.3d at 674.
To meet prong two of the discretionary function
exception analysis, “[t]he relevant choice must be susceptible
to some consideration of social, economic, or political policy.”
Kim v. United States, 940 F.3d 484, 487 (9th Cir. 2019)
(brackets, citation and internal quotation marks omitted). This
Court must determine “whether that judgment is of the kind that
the discretionary function exception was designed to shield,
namely, only governmental actions and decisions based on
considerations of public policy.” Id. (quotation marks and
citation omitted). “The key factor in identifying judgments that
are protected by the discretionary function exception is the
presence of competing policy considerations that must be
weighed.” Nanouk v. United States, 974 F.3d 941, 949 (9th Cir.
2020) (citations and internal quotation marks omitted).
Plaintiffs claim Defendant negligently caused further
harm by, among other things: carrying out its initial flushing
program asking residents to run their water and flush toilets to
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remove contaminants; carrying out the government-personnel-
conducted flushing program; failing to replace plastics and
water heaters (where water heaters led to further burns when
families moved back into their homes); and failing to scrub the
air of contaminants. [Fifth Amended Complaint at ¶¶ 51, 58-59.]
Defendant argues the Single Family Home Flushing
Protocol and Standard Operating Procedures (collectively “SOP”)
accounted for competing priorities, including health of
residents and government personnel conducting the flushing, time
to acquire materials, and time and personnel power. See Motion,
Mem. in Supp. at 10-11; id., Exh. 1 (Declaration of Commander
Trevor Bingham in Support of the United States of America’s
Motion to Dismiss (“Bingham Decl.”));4 Bingham Decl., Exh. A
(Single Family Home Flushing Plan Checklist and Standard
Operating Procedures, JBPHH, O`ahu, Hawai`i, December 2021).
In its Supplemental Brief, Defendant argues
Plaintiffs’ allegations about the decision not to scrub the air
of contaminants or to replace water heaters or piping challenge
the SOP – and more specifically, why the Navy did not include
those tasks within the SOP. [Supplemental Brief at 8.] For
example, the SOP included measures to address possible air
4 Commander Trevor Bingham was the Facilities Management
Division Director of JBPHH from 2021–2022. [Bingham Decl. at
¶ 1.] From approximately December 10, 2021 to March 15, 2022,
Bingham was in charge of facility flushing. [Id. at ¶ 4.]
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contamination in residents’ homes by requiring windows to be
open if pets are not in that room, and to ventilate the space
with blowers or fans if a fuel smell arose during the flushing
process. [Bingham Decl., Exh. A at PageID.8076.] Similarly, the
SOP stated to drain and refill water heaters in residences
rather than replace them. [Id. at PageID.8077-78.] These
decisions that the Navy made as to what to include in and
exclude from the SOP “involved a balancing of considerations,”
including the health of Plaintiffs; the health of those
conducting the flushing; available resources with which to
conduct the flushing, such as personal protective equipment
(“PPE”) for Covid safety; and the amount of time the flushing
would take. See Miller v. United States, 163 F.3d 591, 595 (9th
Cir. 1998); Bingham Decl. at ¶¶ 10-11. The Navy’s decisions
addressing possible air contamination, treatment of water
heaters, and the government-personnel-conducted flushing program
as outlined in the SOP were “susceptible to some consideration
of social, economic, or political policy.” See Kim, 940 F.3d at
487; see also Nanouk, 974 F.3d at 948 (holding the discretionary
function exception’s second prong was satisfied where “the
military adopted a triage system for addressing a large number
of simultaneous demands on finite resources, a policy judgment
that necessarily involved the weighing of competing social,
economic, and political considerations”).
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The Navy’s initial flushing program asking residents
to run their water and flush toilets to remove contaminants was
also susceptible to some consideration of policy, and falls
within the discretionary function exception. The Navy made this
request on November 30, 2021, ten days after the fuel leak.
[Fifth Amended Complaint at ¶¶ 30, 37.] This initial flushing
request was part of the decision to address possible wide-scale
contamination in many residences, which culminated in the
government-personnel-conducted flushing program, and is
therefore a policy-based decision covered by the discretionary
function exception. In other words, this was the first step of
the eventual government-personnel-conducted flushing program and
is a policy judgment of the type that the discretionary function
exception was intended to protect. Cf. Schurg v. United States,
63 F.4th 826, 834 (9th Cir. 2023) (“The Forest Service’s
communications about its fire-suppression activities ‘were part
of the decision to set, and the subsequent conduct of, the
burnout — which is undisputedly a policy-based decision covered
by the discretionary function exception.’” (quoting Esquivel, 21
F.4th at 576)), see Welsh v. U.S. Army, No. C 08-3599 RS, 2009
WL 250275, at *4 (N.D. Cal. Feb. 3, 2009) (“Policy judgments are
implicated when evaluating and responding to public health and
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environmental hazards.” (citation and internal quotation marks
omitted)).5
Defendant has established that the discretionary
function exception applies to the portion of Count II alleging
failure to properly remediate affected homes, pursuant to the
SOP. [Fifth Amended Complaint at ¶ 481.j.] Therefore, Defendant
retains sovereign immunity from that portion of Count II.
Defendant only argues the discretionary function
exception applies to the failure-to-remediate claim insofar as
it challenges the “scope and adequacy” of the SOP. See Motion,
Mem. in Supp. at 10 (“Plaintiffs appear to contend that the Navy
was negligent by not remediating their homes more than what was
required by the” SOP); Supplemental Brief at 2. Thus, to the
extent that Plaintiffs allege the United States was negligent in
departing from or failing to carry out the SOP when United
States personnel carried out the government-personnel-conducted
flushing program, these negligence claims are not barred by the
discretionary function exception.
In their Supplemental Response, Plaintiffs contend
government personnel flushing the homes did so negligently,
causing further harm by leaving water damage and toxicity
behind. Supplemental Response at 2, 11-12, see also Fifth
5 Welsh was affirmed by the Ninth Circuit. 389 F. App’x 660
(9th Cir. 2010).
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Amended Complaint at ¶ 51. The Ninth Circuit has held that “the
design of a course of governmental action is shielded by the
discretionary function exception, whereas the implementation of
that course of action is not.” Whisnant, 400 F.3d at 1181
(emphases in original). This “design-implementation” doctrine
applies “largely in cases involving public health and safety,
and in circumstances where a private party would likely be held
liable for the same conduct or omission.” Gonzalez v. United
States, 814 F.3d 1022, 1035 (9th Cir. 2016) (citing cases).
Because the instant case involves public health and safety, this
doctrine applies. See Marlys Bear Med. v. U.S. ex rel. Sec’y of
Dep’t of Interior, 241 F.3d 1208, 1215 (9th Cir. 2001) (“The
decision to adopt safety precautions may be based in policy
considerations, but the implementation of those precautions is
not.”). Defendant has neither argued nor demonstrated that the
implementation of the SOP implicated policy concerns.
Implementing the SOP involved following the SOP, a straight-
forward checklist, which did not leave room for discretionary
decisions involving judgment or policy. In other words,
Defendant has not established that the portion of Plaintiffs’
claim alleging Defendant acted negligently in conducting the
government-personnel-conducted flushing by not following the SOP
are protected by the discretionary function exception. Instead,
these actions appear to constitute a “failure to effectuate
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policy choices already made.” See Nanouk, 974 F.3d at 950
(quotation marks and citation omitted); see also Whisnant, 400
F.3d at 1183 (holding the suit not barred by the discretionary
function exception when “Whisnant does not allege that the
government was negligent in designing its safety inspection
procedures; rather, he charges that the government was negligent
in following through on those procedures to safeguard the health
of employees and customers of the Bangor commissary.”); Fang v.
United States, 140 F.3d 1238, 1243 (9th Cir. 1998) (holding
that, although general medical protocols apply to the claim of
negligent rendering of CPR, the EMT’s rendering of CPR “is not
the type of governmental discretion which Congress wanted to
immunize from liability through the discretionary function
exception” because “[c]ompeting policy rationales do not dictate
or influence this conduct”). Count II – to the extent that it
alleges Defendant was negligent in conducting the government-
personnel-conducted flushing – is a viable claim. The remainder
of this claim, however, is not because it is barred by sovereign
immunity.
Defendant’s Motion is granted insofar as the portion
of Count II alleging failure to properly remediate affected
homes is dismissed, with the exception of the portion of the
claim alleging Defendant failed to follow the SOP in conducting
the government-conducted flushing program. Because amendment
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cannot cure the defect in the portion of Count II alleging
failure to properly remediate affected homes insofar as certain
actions were not included in the scope of the SOP, this portion
of Count II is dismissed with prejudice. See Hoang v. Bank of
Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018) (“Dismissal with
prejudice and without leave to amend is not appropriate unless
it is clear . . . that the complaint could not be saved by
amendment.” (quotation marks and citation omitted)).
CONCLUSION
For the foregoing reasons, the remaining portion of
Defendant’s Partial Motion to Dismiss Fifth Amended Complaint
[ECF No. 210], filed December 7, 2023, is HEREBY GRANTED IN PART
AND DENIED IN PART. The Motion is DENIED as to the portion of
Count II regarding Defendant’s allegedly negligent failure to
adhere to the SOP while conducting its government-personnel-
conducted flushing program in Plaintiffs’ homes. The Motion is
GRANTED insofar as the remaining portions of Count II alleging
failure to properly remediate affected homes is DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 21, 2024.
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PATRICK FEINDT, JR., ET. AL. V. UNITED STATES OF AMERICA, CV 22-
00397 LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART THE
REMAINDER OF DEFENDANT’S PARTIAL MOTION TO DISMISS FIFTH AMENDED
COMPLAINT [ECF NO. 210]
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