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Giovanni v. United States Department of Navy

United States District Court, E.D. Pennsylvania

July 6, 2017

KRISTEN GIOVANNI, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE NAVY, Defendant.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Since 2003, the Giovannis have lived in close proximity to the Naval Air Station Joint Reserve Base Willow Grove and the Naval Air Warfare Center Warminster. After discovering that chemicals from the naval facilities infiltrated their water supply, and concerned that they are at a higher risk of developing illnesses as a result of this contamination, the Giovannis sued the United States Department of the Navy in state court under Pennsylvania's Hazardous Sites Cleanup Act. They seek an injunction requiring the Navy to provide “medical monitoring, ” a health assessment, a health effects study and blood testing.

         The Navy removed the case pursuant to 28 U.S.C. § 1442(a)(1) and filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Willow Grove and Warminster facilities are subjects of an ongoing response action under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Because the Giovannis's lawsuit is a “challenge” to a “removal or remedial action” under CERCLA, the Court lacks jurisdiction to hear their claims and accordingly grants the Navy's motion.

         I.

         A.

         Kristen and Charles Giovanni are the parents of Anthony and two minor children, V.G. and D.G. (Compl., at 1, ECF No. 1-1.) The Giovannis have lived adjacent to the Navy's Willow Grove facility, where a private well located on the Giovannis's property supplied their water, since December 2003. (Id. ¶¶ 24-25.)

         In December 2014, the Giovannis discovered dangerous levels of perfluorochemical compounds (“PFCs”) in their water supply. (Id. ¶ 26.) They later learned that the facilities at Willow Grove and Warminster had improperly disposed of contaminants and hazardous substances, allowing them to enter the groundwater supply. (Id. ¶ 1.) The EPA has listed both facilities on its National Priorities List for over two decades. (Id. ¶ 22.) In other words, there is an ongoing clean-up action at these facilities under CERCLA. See 42 U.S.C. § 9601 et seq. The Navy provided the family with bottled water for six months, after which time the family used their local township's water supply. (Id. ¶¶ 31-32.) Contamination from the Willow Grove facility also impacted the township's water supply and the Giovannis were exposed to unsafe levels of PFCs from both sources of water. (Id. ¶¶ 34-36.)

         B.

         On August 23, 2016, the Giovannis sued the Navy in the Montgomery County Court of Common Pleas under Pennsylvania's Hazardous Sites Cleanup Act (“HSCA”). The Navy filed a notice of removal pursuant to 28 U.S.C. § 1442(a)(1) on September 12, 2016, (ECF No. 1), and the Giovannis filed a motion to remand on October 11, 2016, (ECF No. 7).

         In their motion to remand, the Giovannis argued that CERCLA divested the district court of jurisdiction because the case was brought under state law and 42 U.S.C. § 9613(h) bars “‘pre-enforcement review' of remedial and recovery actions.” (Pls.' Mot. to Remand, at 6, ECF No. 7-1.) They explained that since their “claims are being brought pursuant to Pennsylvania state law only” and the “EPA's response to the contamination resulting from the Willow Grove Facility is ongoing, ” they have “brought a pre-enforcement claim arising under state law and the Court is divested of jurisdiction of their HSCA claim.” (Id.)

         The Navy responded to the Giovannis's motion to remand and simultaneously filed a motion to dismiss for lack of subject matter jurisdiction. (ECF No. 8.) The Navy agreed with the Giovannis that § 9613(h) precluded the district court from exercising jurisdiction over the Giovannis's claims. The Navy argued, however, that CERCLA also barred the claims in state court and that the Navy had sovereign immunity.[1] The Navy moved to dismiss the case under Rule 12(b)(1) rather than remand pursuant to 28 U.S.C. § 1447(c).

         The Giovannis responded to the Navy's motion, (ECF No. 13), claiming again that the Court lacked subject matter jurisdiction. They contended that remand under § 1447(c) was proper and that the Court should not allow the Navy to use a “clever procedural two-step whereby parties . . . create limited jurisdiction for the sole purpose of dismissing the action.” (Pls.' Memo. in Op. to Def.'s Mot. to Dismiss, at 3, ECF No. 13 (quoting Northrop Grumman Tech. Serv., Inc. v. DynCorp Int'l LLC, No. 1:16-cv-534, 2016 WL 3144330, at *6 (E.D. Va. June 6, 2016).) The Giovannis also raised-for the first time-an alternative argument: their Complaint did not “challenge” a “removal or remedial action” under § 9613(h) so the Court did have jurisdiction to hear their claims. (Id. at 8-11.) The Giovannis's latter argument directly contradicted their initial position.

         The Court held oral argument on both motions on February 6, 2017. (ECF Nos. 17 & 18.) During argument, the Giovannis withdrew their motion to remand and focused primarily on their newly raised position-that their suit was not a challenge to a removal or remedial action. (Tr. of Hr'g, at 7:4-7, ECF No. 18.) Because the parties had not squarely briefed the most important issues remaining in the case, the Court ordered supplemental briefing on two questions: (1) whether a state law medical monitoring claim is a “challenge” to a “removal or remedial action” and is therefore barred by 42 U.S.C. § 9613(h); and (2) if the Court lacks subject matter jurisdiction, whether the case should be remanded to the state court pursuant to 28 U.S.C. § 1447(c) or dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 19.) The parties filed their supplemental briefs on March 31, 2017. (ECF Nos. 20 & 21.)

         II.

         A.

         CERCLA is a “comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.” Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994). There are two types of clean-up actions under CERCLA: remedial actions and removal actions. Remedial actions are “generally long-term or permanent containment or disposal programs” while removal actions are “typically ...


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