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Giovanni v. United States Department of Navy

United States District Court, E.D. Pennsylvania

January 15, 2020

KRISTEN GIOVANNI, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE NAVY, Defendant. DOROTHY PALMER, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE NAVY, Defendant.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         The 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.

         The 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.

         I

         A

         The Giovanni and Palmer families discovered that their private wells contained dangerous levels of PFCs. (Consol. Am. Compl. ¶¶ 28, 36, ECF No. 41.[1]) 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, [2] 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.)

         B

         The 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).

         The 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 at 102.

         The 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.

         After 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.[3] (Consol. Am. Compl. ¶¶ 66-85.)

         II

         A

         Where a 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).

         B

         To 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. 8(a)(2)).

         When 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).

         III

         The 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).

         The 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 ...


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