United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Giovanni and Palmer families live near facilities that were
owned and operated by the United States Navy. After
discovering that chemicals from the facilities infiltrated
their water supply, they sued the Navy under
Pennsylvania's Hazardous Sites Cleanup Act. The Navy
filed a Motion to Dismiss, arguing that the Court lacks
jurisdiction because the Navy has not waived sovereign
immunity. In the alternative, the Navy argues that
Plaintiffs' Consolidated Amended Complaint fails to state
a claim because neither perfluorooctane sulfonate
(“PFOS”) nor perfluorooctanoic acid
(“PFOA”)-the two perfluorochemical compounds
(“PFCs”) found in the water-are “hazardous
substances” under HSCA.
Third Circuit Court of Appeals already ruled in this case
that the Navy waived sovereign immunity under the Resource
Conservation and Recovery Act, foreclosing the Navy's
continuing argument to the contrary. The Navy is correct,
however, that the PFCs are not hazardous substances under
HSCA. After studying the parties' briefing (ECF Nos. 43,
45 and 47) and holding oral argument (ECF No. 53), the Court
grants the Navy's Motion on that ground.
Giovanni and Palmer families discovered that their private
wells contained dangerous levels of PFCs. (Consol. Am. Compl.
¶¶ 28, 36, ECF No. 41.) They later learned that the
Navy had improperly disposed of PFOA and PFOS at its Willow
Grove and Warminster facilities, which allowed the substances
to infiltrate the groundwater supply of both public and
private drinking wells. (Id. ¶¶ 22, 26,
34.) The Navy provided the families with bottled water for
six months, after which the families used their local
townships' water supplies. (Id. ¶¶ 32,
40.) Despite being connected to the townships' supplies,
the families were still exposed to PFCs. (Id.
¶¶ 42, 46.) As a result of the contamination,
Plaintiffs filed suit in 2016 in state court under HSCA,
seeking costs for medical monitoring and an order requiring
the Navy to perform a health assessment and health effects
study of residents affected by the contamination.
(Id. ¶ 2.)
Navy removed the cases to federal court. (Notice of Removal,
ECF No. 1-1, No. 16-4873; Notice of Removal, ECF No. 1, No.
17-765.) In 2017, the Court dismissed the claims, holding
that it lacked jurisdiction because the requested remedies
were “challenge[s]” to a “removal or
remedial action” under the Comprehensive Environmental
Response, Compensation and Liability Act. See (Mem.
Op., ECF No. 22, No. 16-4873; Order, ECF No. 16, No. 17-765).
Third Circuit affirmed in part and vacated and remanded in
part. Giovanni v. U.S. Dep't of Navy, 906 F.3d
94 (3d Cir. 2018). The court of appeals affirmed the
dismissal of Plaintiffs' claim for a government-led
health assessment and health effects study because that claim
constituted a “challenge” to ongoing response
efforts under § 113(h) of CERCLA and was therefore
barred from federal court review. Giovanni, 906 F.3d
Circuit vacated the dismissal of the private medical
monitoring claim. Id. The court first reviewed that
claim under CERCLA, holding that although medical monitoring
was not a “challenge” to the ongoing cleanup
effort, the Navy did not waive sovereign immunity under
§ 120(a)(1) of CERCLA because the Willow Grove and
Warminster facilities were included on the National
Priorities List. Id. at 118 n.26 (citing
Warminster Twp. Mun. Auth. v. United States, 903
F.Supp. 847, 850 (E.D. Pa. 1995) (“[T]he waiver of
sovereign immunity described in CERCLA cannot operate to
expose the Government to liability under the HSCA [for
facilities on the NPL].”)). The Third Circuit
concluded, however, that the Navy waived immunity under RCRA.
Id. at 121.
the Third Circuit issued its decision, the Navy sought a
rehearing en banc but the court of appeals denied
the request. Order Denying Petition for Rehearing en
Banc, Giovanni, 906 F.3d 94 (No. 17-2473). This
Court then consolidated the cases (ECF No. 38) and Plaintiffs
filed a Consolidated Amended Complaint. (ECF No. 41.) The
Consolidated Amended Complaint asserts one claim under HSCA
and requests as a remedy the costs of medical
monitoring. (Consol. Am. Compl. ¶¶ 66-85.)
pleading does not allege facts sufficient to establish
subject matter jurisdiction, a party can move to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1).
Challenges to subject matter jurisdiction may be facial or
factual in form. Gould Elecs. Inc. v. United States,
220 F.3d 169, 176 (3d Cir. 2000). The assertion of sovereign
immunity as a defense is properly treated as a facial
challenge. See Urella v. Pa. State Troopers
Ass'n, 2008 WL 1944069, at *3 (E.D. Pa. May 2,
2008). With facial challenges, the Court treats the
complaint's allegations as true and decisions on any
motions are purely legal determinations. Cudjoe v.
Dep't of Veterans Affairs, 426 F.3d 241, 244 (3d
Cir. 2005). In reviewing a facial attack under Rule 12(b)(1),
the Court's inquiry is limited to the allegations in the
complaint, the documents referenced in or attached to the
complaint, and matters in the public record. In re Intel
Corp. Microprocessor Antitrust Litig., 452 F.Supp.2d
555, 557 (D. Del. 2006).
survive dismissal under Federal Rule of Civil Procedure
12(b)(6), the complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the facts pled
“allow[ ] the court to draw the reasonable inference
that [a] defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
the complaint includes well-pleaded factual allegations, the
Court “should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.” See Connelly v. Lane Const. Corp.,
809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556
U.S. at 679). However, this “presumption of truth
attaches only to those allegations for which there is
sufficient factual matter to render them plausible on their
face.” Schuchardt v. President of the U.S.,
839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and
citation omitted). This plausibility determination is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. (quoting Connelly, 809
F.3d at 786-87).
United States enjoys immunity from suit absent an explicit
waiver of sovereign immunity. United States v.
Mitchell, 445 U.S. 535, 538 (1980). “Sovereign
immunity is jurisdictional in nature, ” FDIC v.
Meyer, 510 U.S. 471, 475 (1994), and extends to
governmental agencies of the United States, including the
Navy. See Antol v. Perry, 82 F.3d 1291, 1296 (3d
Cir. 1996). The government's consent to be sued cannot be
implied; it must be “unequivocally expressed” and
waivers of sovereign immunity must be “strictly
construed” in favor of the government. United
States v. Idaho ex rel. Dep't of Water Resources,
508 U.S. 1, 6-7 (1993) (citations omitted).
Navy asserts a sovereign immunity defense under RCRA,
see (Def.'s Mot. to Dismiss (“Def.'s
Mot.”) 11-18, ECF No. 43), and Plaintiffs respond that
the Third Circuit already held that the Navy waived its
immunity. (Pls.' Resp. Opp'n Mot. to Dismiss
(“Pls.' Resp.”) 5, ECF No. 45.) The Navy,
however, claims that the court of appeals did not actually
decide whether a claim for medical monitoring
“satisfies all the textual elements of RCRA's
[immunity] waiver” and asks the Court to conclude that