Citations
- 263 F. Supp. 3d 1318
Full opinion text
OPINION AND ORDER
THOMAS W. THRASH, JR., United ■ States District Judge
This matter is before the Court on the Government’s motion for order relating to the preservation of documents and electronically stored information [37]; the Government’s motion to dismiss [61]; the Government’s motion to dismiss for lack of subject-matter jurisdiction [62]; the Plaintiffs’ motion for oral argument [72]; Plaintiff Bryant’s motion to amend complaint [77]; the Plaintiffs’ motion for extension of time to complete discovery and to stay [83]; Plaintiff Johnston’s pro se motion to amend [97]; Plaintiff Douse’s pro se motion for reconsideration [117]; Plaintiff Straw’s pro se motion for clerk’s entry of default [121]; Plaintiff Douse’s pro se motion to amend [123]; Plaintiff Wright’s motion to amend complaint [126]; the Government’s motion to dismiss all cases based on North Carolina statute of repose [127]; Plaintiff Douse’s pro se motion for punitive and exemplary damages [143]; the Government’s motion to strike [152]; Plaintiff Douse’s pro se motion for additional award of damages, for relief based on Bivens, and for a protective order [156]; Plaintiff Bryant’s supplemental motion to amend [164]; Plaintiff Straw’s pro se motion for permanent injunction [165]; Plaintiff Straw’s pro se fourth motion for clerk’s entry of default [169]; the Government’s motion for protective order [172]; the Plaintiffs’ motion to transfer pursuant to 28 U.S.C. § 1631 or motion for conditional suggestion of remand [176]; Plaintiff Straw’s pro se first motion for clerk’s entry of default [178]; the Plaintiffs’ motion for a hearing [188]; and Plaintiff Straw’s pro se motion for refund and further relief [192].
I. Procedural History
In this Multidistrict Litigation (MDL), the Plaintiffs are service members and/or their family members who allege they were exposed to toxic substances in the water supply while living at Marine Corps Base Camp Lejeune in North Carolina. The Plaintiffs further contend that the United States failed to monitor the quality of the water supply at Camp Lejeune and failed to provide notice to the Plaintiffs concerning the presence of toxic substances in the water , supply. The Plaintiffs allege that they have suffered illnesses or death as a result of the actions of the United States and bring their actions pursuant to the ' Federal Tort Claims Act (“FTCA”), 28 U.S;C. §§ 2671-2680. There are currently seventeen eases in the MDL and, although the potential number' of plaintiffs is not known, there are currently over 4,000 claimants in the administrative process with the Department of the Navy.
Given the amount of time that has passed since it has addressed substantive matters, the court finds it useful to give a summary of the course of the litigation to this point. When the Multidistrict Litigation was formed, the court held a scheduling conference. After hearing from the parties, the court determined that the most efficient course of action would be to first address two threshold legal questions: (1) whether the limitations period contained in the Comprehensive Environmental Response Compensation and Liability (“CERCLA”) preempted the North Carolina statute of- repose; and (2) whether the North Carolina statute of repose had an exception for latent diseases. Answering these two questions has taken the better part of five years.
Because the court determined that threshold legal issues needed to be addressed first, the court did not call for the filing of an omnibus complaint. But the court-did permit discovery on the Feres doctrine and the Federal Tort Claims Act discretionary function exception. The parties had briefed motions to dismiss based on these two theories. Those motions are still pending.
In an order dated September 29, 2011, the court held that although a plain reading of 42 U.S.C. §' 9658 of CERCLA might counsel a different result, based on' the purpose of CERCLA as a remedial statute, section 9658 preempted both statutes of limitation and statutes of repose. Therefore, the court found that the applicable North Carolina statute of repose contained in North Carolina General Statute § 1-52(16) barred claims from accruing more than ten years from the last act giving rise to the cause of action would not apply to the Plaintiffs. A consequence of this holding was that the court did not then need to consider whether North Carolina’s statute of repose contained an exception for latent disease. However, the Government then asked the court to rule on this alternative ground so that the parties could take an interlocutory appeal to the .United States Court of Appeals for the Eleventh Circuit on both legal rulings. The court agreed to do so and permitted the parties to brief the matter of a latent disease exception. In an order dated May 11, 2012, .the court held that the statute of repose in North Carolina General Statute § 1-52(16) did not contain an exception for latent diseases.
The Government then filed a motion for permission to file an interlocutory appeal pursuant' to 28 U.S.C. § 1292(b). The court granted that motion. The Court of Appeals accepted the appeal on October 31, 2012, which was docketed as 'Bryant v. United States, and held oral argument in the case on January 17, 2014. However, just days prior to the argument, the United States Supreme Court granted certiorari in CTS Corp. v. Waldburger, No. 13-339, which would be directly controlling authority on the issue of CERCLA preemption. The Court of Appeals held its ruling to await' the Supreme Court’s opinion in Waldburger.
On June 9, 2014, the Supreme' Court held that CERCLÁ section 9658 did not preempt. North Carolina’s statute of repose, The Eleventh Circuit then took up the parties’ appeal. In its opinion, the Court of Appeals recognized the Supreme Court’s holding in Waldburger as answering the first question and therefore turned to the second question — whether the North.Carolina statute of repose includes an exception for latent disease. Based on the statute as it existed when the Plaintiffs brought their cases, the Court of Appeals found that the statutory language was unambiguous .and did. not contain an exception for latent disease.
The Eleventh Circuit recognized, however, that shortly after the Supreme Court issued its decision in Waldburger, the North Carolina legislature amended the statute of repose to add the following language: “The 10-year period set forth in G.S. 1-52(16) shall not be construed to bar an action for personal injury, or property damages caused or contributed to by ... the consumption, exposure, or use of water ‘ supplied from groundwater contaminated by a hazardous substance, pollutant, or contaminant.” The General Assembly specified.that this amendment applied to any actions “filed, arising, or pending” on or after June 20, 2014. Nevertheless, the Court of Appeals found that the amendment should not-apply retroactively because it “substantively amended the statute of repose to create an exception for groundwater contamination and, as a result, can only apply prospectively, lest [the amendment] divest the Government of a vested right.” The Court of Appeals then remanded the case.
This court accepted the order as mandate and held a Scheduling Conference on February 25, 2015, during which the Plaintiffs indicated they intended to seek certio-rari as to the Eleventh Circuit's ruling in Bryant. The Supreme Court denied the Plaintiffs’ petition for writ of- certiorari. The court held another Scheduling Conference on January 6, 2016. During that conference, the court directed the Government to file a motion to dismiss based on the‘Eleventh Circuit’s holding in Bryant. In addition to responding to the Government’s motion, the Plaintiffs have filed numerous motions to amend their complaints, as well as a motion to transfer or remand the Multidistrict Litigation.
II. Discussion
A. Motion to Transfer or Remand
1. Impact of Stahle and Choice of Law Questions
In their motion to transfer, the Plaintiffs essentially ask that the court reconsider the outcome of Bryant in light of the Fourth Circuit’s recent ruling in ‘Stahle y, CTS Corporation. The Plaintiffs’ arguments are premised on a contention that the Fourth Circuit’s holding in Stahle is "in conflict with the Eleventh Circuit’s ruling in Bryant. In 'Stahle, the plaintiff filed a negligence action alleging that his leukemia was cáúsed, by his exposure to toxic solvents when he was a child. The Fourth Circuit considered the scope of North Carolina General Statute § 1-52(16) in relation to Stahle’s claim. The Stahle court first recalled that the Fourth Circuit previously held in Hyer v. Pittsburgh Corning Corp., that “the [North Carolina] Supreme Court does not consider disease to be included within a statute of repose directed at personal injury claims.” Although the Stahle court agreed that section 1-52(16) “functions as a statute of repose directed at certain personal injury claims,” it found that the “North Carolina General Assembly has not expressly expanded the language to include disease.” Thus, the court found that section 1-52(16) does not apply to claims arising out of disease. The court rejected CTS’s argument that Hyer addressed a different statute of repose. Instead, the court ruled that “we anticipate that the Supreme Court of North Carolina would rule that Section 1-52(16) is not applicable to Stahle’s claim arising from disease.” The Stahle court then went on to discuss its disagreement with the Eleventh Circuit’s ruling in Bryant that the plain language of section 1-52(16) demonstrated that there was no exception for latent diseases.
There can be no dispute that under the “law of the case” doctrine, the court must apply the Eleventh Circuit’s ruling in Bryant. There are only three exceptions to this doctrine: (1) discovery of new evidence, (2) controlling authority that renders Bryant contradictory, and (3) the ruling is clearly erroneous and would work manifest injustice. None of these exceptions is present here. In candor, the court is troubled by the argument raised by the Plaintiffs’ Liaison Counsel that this court “certainly does not owe blind deference to the erroneous 11th Circuit Bryant opinion.” The Plaintiffs rely upon a quote from Rutherford v. Columbia Gas that “some courts have recognized that the obligation to properly determine state law is more important than the general dictate to defer to prior federal precedent construing state law.” The Plaintiffs’ quote does not come from the majority opinion in Rutherford. Rather, it comes from the concurring and dissenting opinion. Moreover, Rutherford involved whether a panel of the Sixth Circuit was bound to follow a prior Sixth Circuit panel’s interpretation of Ohio law when that interpretation was based on an opinion of a lower Ohio court. The discussion in Rutherford was not whether a district court had to follow the precedent of its own circuit court of appeals in the same case. On this matter, there really can be no dispute. Obviously, this court’s circumstances are vastly different. There can be no dispute that as a district court, this court must follow Bryant.
Similarly irrelevant for this court is whether any one federal court of appeals must follow another federal court of appeals’ view of state law. Yet, the Plaintiffs cite to Factors Etc., Inc. v. Pro Arts, Inc., as if it provides some authority for this court to disregard Bryant when Factors really discusses whether the Second Circuit should follow the Sixth Circuit’s interpretation of a matter of state law. It is axiomatic that the Second Circuit is not controlled by the Sixth .Circuit.
Finally, the Plaintiffs expend a great deal of energy arguing why the Eleventh Circuit was incorrect in its interpretation of'North Carolina law and should have reached the same outcome as Stahle. Again, as a district court, this court is bound to follow Bryant. This court has no authority or desire to reconsider an opinion of the Eleventh Circuit. Moreovér, simply because the Fourth Circuit sits in North Carolina does not render it as the final authoritative word on the interpretation of North Carolina law. The Fourth Circuit — like all federal courts across the country — is charged with making an Erie prediction as to what the highest court of North Carolina would say about North Carolina state law. Regardless of whether as a practical matter, the Fourth Circuit' might have more experience in interpreting North Carolina law, there is nothing “binding” about the Fourth Circuit’s decision in Stahle as to other federal courts of appeal, or even as to North Carolina state courts, of course.
Moreover, the court notes that the decision in Stahle, itself, is a cogent reminder of the fact that North Carolina law remains highly unsettled in this area. In her concurring opinion, Judge Thacker noted two' factors that this court had previously relied upon in finding that section 1-52(16) does not contain an exception for latent diseases: (1) Hyer can only be considered dicta because it construed a materially different statute than section 1-52(16); and (2) Hyer has not b.een cited by a reported North Carolina decision. Judge Thacker went even further in discussing the muddied waters of North Carolina law in this area in noting that the North Carolina Supreme Court as well as now four different federal circuits have reached conflicting conclusions on the question of whether “personal injury” in North Carolina encompasses a claim for “disease.” She stated:
The Supreme Court of North Carolina itself has'sent mixed signals about the scope of § 1-52(16). Compare Dunn v. Pac. Emp’rs Ins. Co., 332 N.C. 129, 418 S.E.2d 645, 647-48 (1992) (holding that, in an action based on the decedent’s death from cancer based on exposure to hazardous chemicals, § 1-52(16) would be the proper statute of limitations for the underlying claim- for bodily injury), and Wilder, 336 S.E.2d at 69 (suggesting that “the statute of limitations contained in the first clause of G.S. 1-52(16)” “govern[s] all negligence claims”), with Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 853 n. 2 (1988) (suggesting that § 1-52(16) was “intended to apply to plaintiffs with latent injuries,” and is “inapplicable” to claimants who are “aware of [their] injury as soon as it occur[s]”), and Misenheimer [v. Burris], 637 S.E.2d [173], 175-76[, 360 N.C. 620 (2006) ] (explaining that latent injury claims remain subject to the statute of repose in § 1-52(16));- see also Ante at 109-10.
And outside of North Carolina’s borders, after the publication of this decision, four circuits will have addressed this state law question, all with different views of the statute’s scope. Compare In re Dow Corning Corp., 778 F.3d 545, 552 (6th Cir. 2015) (“The Fourth Circuit has consistently applied th[e] ‘disease exception,’ first announced by the North Carolina Supreme Court in Wilder v. Ama-tex, to diseases incurred from exposure to harmful. products”), and Bryant v. United States, 768 F.3d 1378, 1381 (11th Cir. 2014) (holding that the .statute of repose in § -1 — 52(16) unambiguously applies to disease claims), and Klein v. DePuy, Inc., 506 F.3d 553, 569 (7th Cir. 2007) (in holding that “§ .1-62(16) is not limited to latent injury claims,” relying on Dunn and Wilder, rejecting Hyer, and ignoring Misenheimer).
For this eourt, of course,. the Eleventh Circuit’s ruling in Bryant is binding.
In addition, the Plaintiffs argue that Stahle is now binding authority on North Carolina law and for this reason, the court must reconsider its prior ruling and should apply Stahle and not Bryant. There are numerous reasons why the Plaintiffs’ argument is an incorrect statement of the law. The Plaintiffs first argue that because most of the underlying cases were filed in North Carolina, the court must apply North Carolina law under the “transferee/transferor” theory. As to the Plaintiffs from other states, the Plaintiffs contend that the court would have to undertake a choice of law analysis based on the individual facts and causes of action pleaded in each of those complaints.
Before addressing the Plaintiffs’ arguments concerning whether this court is bound to apply the law of the transferor forum, the court finds it useful to delve at some depth into the basis for this court’s jurisdiction. As the Government points out, these cases have been brought under the Federal Tort Claims Act and, as such, the basis for'jurisdiction is not diversity, but rather original federal question jurisdiction under the Federal Tort Claims Act. Much of the argument made by the Plaintiffs is based on them incorrect assumption that this is a diversity action. For example, the Plaintiffs are correct that in a diversity action, the MDL court must apply the law of the transferor forum, that is, the law of the state, in which the action was .filed, including the-transferor forum’s choice-of-law rules. In diversity actionSj the transferee-transferor considerations can. be quite complex. But, the court need not reach these issues because this is not a diversity case..
When aii MDL court (the “transferee” court) has a case with jurisdiction based on federal law, it does not apply the law of the transferor court as it would under Van Dusen/Ferens, rather the transferee' eourt should follow the law of its own circuit on questions- of federal law. “As a general rule, questions of federal law in MDL-transferred cases are governed by the law of the transferee circuit.” .
The court must now consider under Eleventh Circuit authority which law to apply to the Plaintiffs’ federal cause of action under the Federal Tort Claims Act. “It is well settled that the United States, as a sovereign' entity, is immune from suit unless it consents to be sued.” “Through the enactment of the FTCA, the federal government has, as a general matter, waived its immunity from tort suits based on state law tort claims.”
The Zelaya court also explained that:
Any plaintiff seeking to sue thé United States under the FTCA must satisfy two initial statutory burdens to establish jurisdiction. Clark v. United States, 326 F.3d 911, 912 (7th Cir. 2003). First, as with all suitors in federal courts, the plaintiff must identify an explicit statutory grant of subject matter jurisdiction, which in the case of the FTCA is 28 U.S.C. § 1346(b)(1). Id. This statute provides:
Subject to the provisions Of chapter 171 of this title [i.e., 28 U.S.C. §§ 2671-2680], the district courts .. ■. shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1,1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of fhe place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). Translated, any time the federal government is sued based on the act of an employee performed within the scope of his employment duties, federal district courts will have exclusive jurisdiction of such claims. In addition, § 1346(b)(1) sets, as a predicate, a requirement that the circumstances be such that á private person would be liable under the law . of the state where the federal employee’s act or omission occurred, had a private person so acted.
The “reference in § 1346(b)(1) to ‘the law of. the place where the act or omission occurred’ means the law of the state where the alleged tort occurred.” “Because the United States is a sovereign entity, the second jurisdictional requirement is a statute that waives its sovereign immunity.” The court discusses this second requirement in more detail below when addressing the discretionary function exception.
The “law of the place where the act or omission occurred” means “the whole law of the State where the act or omission occurred,” including the choice of law rules of that state.' “The plaintiffs injury is considered to be sustained in the state “where 'the last act occurred giving rise to [the] injury.’ ” Here, there can be no dispute but that the place is North Carolina, the state in which all of the Plaintiffs resided at the time they allege they were exposed to a contaminated water supply at Camp Lejeune. All actions with respect to the water supply at Camp Lejeune took place in North Carolina. North Carolina applies the traditional lex loci delicti rule in tort cases. Significantly, under North Carolina law, a statute of repose is considered substantive law and therefore is also part of the “law of the place” of North Carolina. ‘
While the FTCA does direct that North Carolina law applies as the “law of the place where the act or omission occurred,” the fact that federal law points to state law for its choice of law does not mean that the cause of action arises under state law. This is not a distinction without a difference, as this very case shows. There is only one federal law. The court applies the federal law as located in its controlling precedent — in this case, Bryant. The court does not ignore the fact that — as it turns out— the Eleventh Circuit and the Fourth Circuit have reached different conclusions as to the interpretation of North Carolina law to be applied to this federal question under the FTCA. But that simply happens to be a product of the fact that there are differ-; ent federal courts of appeal in the United States. A plaintiff has no “right” to the Fourth Circuit’s interpretation of North Carolina law over the Eleventh Circuit’s interpretation. Once the determination was made to put these cases into an MDL assigned to the United States District Court for the Northern District of Georgia, that choice was fixed as to the Eleventh Circuit’s interpretation.
Perhaps understanding that this court has no choice but to follow Bryant, the Plaintiffs make several suggestions as to procedural options the court could exercise as a means of avoiding the outcome dictated by Bryant. First, the Plaintiffs recommend that the court “remand” this case. Second, the Plaintiffs suggest that if the court finds’ there is no subject-matter jurisdiction, it should “transfer” the cases back to the United States District Court for the Eastern District of North Carolina. For the reasons explained below, neither of these procedural options is available to the court.
The court begins by noting the procedure under which these cases were transferred to the Northern District of Georgia. Pursuant to 28 U.S.C. § 1407, the United States Judicial Panel on Multidistrict Litigation may transfer “civil actions involving one or more common questions of fact [ ] pending in different districts ... to any district for coordinated or consolidated pretrial proceedings.” “Each action so transferred shall be remanded by the panel at or before the conclusion of such proceedings to the district from which it was transferred unless it shall have been previously terminated.” Here, the Judicial Panel found under section 1407 that all actions shared “factual questions arising out of alleged death or injuries due to contaminated drinking water on the Marine Corps Base at Camp Lejeune” and should be centralized.
The Plaintiffs contend that when jurisdiction is lacking, remand under 28 U.S.C. § 1631 to the Court of Appeals that does have jurisdiction is the proper course of action. The court cannot agree. Title 28 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
Courts have applied section 1631 where a plaintiff files a case “in the wrong court for very understandable reasons” and requiring re-filing in the right court might raise statute of limitations issue. That is not the situation facing the Plaintiffs here. For the claims barred by North Carolina’s statute of repose, there is no “right court” in which the claims could be filed. Those claims have been extinguished by operation of North Carolina substantive law.
Most significantly, the Plaintiffs offer no response to the Government’s argument that any remand or transfer is barred by Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach. In Lexecon, Lexecon was one of several defendants in a Multi-district Litigation case concerning economic losses resulting from the failure of the Lincoln Savings <& Loan. While the MDL proceeded on pretrial issues, the plaintiffs and Lexecon reached a settlement. Lexe-con then filed a state law action against class counsel for the plaintiffs. That case was also transferred into the Multidistrict Litigation. After the remaining parties in the litigation reached a settlement, Lexe-con asked for its case against class counsel to be “remanded,” but class counsel asked for the case to be “transferred” under 28 U.S.C. § 1404 to the same court having presided over the pretrial proceedings in the MDL.
The Supreme Court held that the MDL court had no authority to “transfer” any individual case under section 1404. The Court began with the language of-section 1407(a) which authorizes the Judicial Panel on Multidistrict Litigation to transfer civil actions with common issues of fact- “to any district for coordinated or consolidated pretrial proceedings,” but imposes a duty on the Judicial Panel to remand any such action to the original district “at or before the conclusion of such pretrial proceedings.” But the Court also noted the language of the Judicial Panel’s Rule 14(b) which provides that “[ejach transferred action that has not been terminated in the transferee district court shall be remanded by the Panel to the transferor district for trial, unless ordered transferred by the transferee judge tp the transferee or other district under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406.” Further, the Court noted that the language of § 1407(a), itself, applied only to pretrial proceedings and did not specifically bar a “self-transfer.”
Ultimately, however, the Court found that “textual pointers” lead to the opposite conclusion that there could not be such a “transfer” because of the mandatory “shall” preceding the direction to remand the cases at the conclusion of pretrial proceedings. “In the absence of any indication that there might be circumstances in which a transferred case would be neither 'terminated’ nor subject to the remand obligation, then, the statutory instruction stands flatly at odds with reading the phrase ‘coordinated or consolidated pretrial proceedings’, so broadly as to reach its literal limits, allowing a transferee court’s self-assignment to trump the provision imposing the Panel’s remand duty.” The Court continued: “Section 1407(a) speaks not in terms of imbuing transferred actions with some new and distinctive venue character, but simply in terms of ‘civil actions’ or ‘actions.’ It says that such an action, not its acquired personality, must be- terminated before the Panel is excused from ordering remand.” Thus, the Court found that Rule 14(b) was inconsistent with the statutory language of section 1407(a). The Supreme Court viewed section 1407 not as a jurisdictional statute, but rather as a “venue statute that ... categorically limits the authority of courts (and special panels) to override a plaintiffs choice [of forum].” Accordingly, an MDL transferee court cannot order a transfer of a case from the MDL back to itself or to any other district court directly.
Lexecon’s bar has been .interpreted broadly. Át least two other courts have held ,that Lexepon’s bar on transfer, under section 1404 extends to transfer under section 1631 to correct some jurisdictional defect. It is true that this court as the transferee court may “suggest” to the Judicial Panel that it should remand the case. But for all of the reasons given in this order, the court does not find any compelling reason to make such a suggestion.
The Plaintiffs also argue that the issue is one of “venue” because the Fourth Circuit would permit these cases to proceed based on its interpretation of North Carolina law, and the Eleventh. Circuit .will not. The court again does not agree with this characterization. Venue in this case is not “improper” as the term, is used in section 1406(a). The fact.that the United States Court of Appeals for the Fourth Circuit has construed North Carolina law in a way that is more favorable to the Plaintiffs’ position than the interpretation of North Carolina law offered by the United States Court of Appeals for the Eleventh Circuit does not mean that this court is an “improper” venue.
The Judicial Panel on Multidistrict Litigation determined that these cases should be transferred to the Northern District of Georgia and thé Plaintiffs have offered no argument 'that this decision was procedurally flawed other than the fact that they had asked the Judicial Panel on Multidis-trict Litigation to consolidate these cases for pretrial proceedings in the United States District Court for the Eastern District of North Carolina where several of the cases were pending. The Judicial Panel, however, was under no obligation to follow that request. . . .
The Plaintiffs also complain that Erica Bryant (the only plaintiff who filed in the Northern District of Georgia) had asked this court — prior to the formation of the MDL — to transfer the case to the Eastern District of North Carolina. This court did not rule on -that motion prior to the transfer of the MDL to the Northern District of Georgia and then denied the motion as moot once the MDL was transferred. Again, there is nothing improper in the sequencing of these events. But the Plaintiffs contend that the holding of Bryant will result in a “miscarriage of justice” because the Eleventh Circuit’s ruling on the statute of repose applies “simply because of where the Panel decided to transfer all of the cases, even in the face of Bryant’s earlier request for transfer.” However, these are the kinds of decisions that are made every day in MDL litigation and consolidation assignments. It is not enough to argue that the decision turned out not to be favorable to the. Plaintiffs and therefore is a “miscarriage of justice.” The Plaintiffs fail to substantiate in any way their argument that this outcome violates their Equal Protection and Due Process rights.,
This is different than a situation in which a plaintiff 'truly- filed in the wrong venue ■ or filed in a district court that lacked personal jurisdiction over a defendant. In those cases, the plaintiff might argue a-.potential miscarriage of justice. Here, rather, the “jurisdictional” 'or “venue” argument raised by the Plaintiffs is actually an argument against the substantive ruling by the Bryant court that the claims have been extinguished as a matter of law by a statute of repose under North Carolina law — the law which would apply to the. Plaintiffs’ claims no matter where they are filed. The Plaintiffs ask for remand or transfer here solely as a means of avoiding the outcome required by the Eleventh Circuit’s ruling in Bryant. Under these circumstances, the court finds that this is not a proper basis for remand or transfer, even if the court had the authority to do either.
Finally, the Plaintiffs argue that the Multidistrict Litigation is a “nullity” because the court did not establish a Steering Committee or direct the Plaintiffs to file an omnibus complaint. The court finds this argument to be totally without merit. As the court explained above, it made the determination to address the threshold legal issues in the case first because of the possibility that those legal matters could be outcome determinative. As it turns out, they were. The court understands the Plaintiffs’ frustration that it took five years to reach a conclusion on these issues, but that is an unfortunate reality of litigation when arguments are raised to the level of the United States Supreme Court.
In finding that it is bound by Bryant and the North Carolina statute of repose bars the Plaintiffs’ claims, the court is not indifferent to the assertions made by the Plaintiffs here. The Plaintiffs have raised serious allegations and contend they and their families have suffered very serious consequences as a result of the contamination of the water supply at Camp Lejeune. But the nature of the Plaintiffs’ allegations cannot alter the court’s obligation to follow the law.
2. New Theories of Liability
Given the substantive outcome of the Eleventh Circuit and Supreme Court cases, in their most recent motions, the Plaintiffs have contended that the North Carolina statute of repose that has been at issue for the entirety of this litigation is not actually the statute of repose the court should apply. While the Plaintiffs recognize that it would have been better for them to have raised this argument at the inception of this litigation five years ago, they say it is an issue of subject-matter jurisdiction which the court must address at any stage of the litigation.
The Plaintiffs now argue that the applicable North Carolina statute of repose is one related to real property. The Government responds that the real property statute of repose does not apply because the Plaintiffs’ alleged injuries arise out of contamination of the water supply at Camp Lejeune and not any structural or architectural defect in the real property improvements.
In her proposed amended complaint addressing the real property statute of repose, Plaintiff Wright asserts that there are three sources of contamination of the Camp Lejeune water supply: (1) the dry cleaners at Tarawa Terrace, (2) leaking storage tanks at the Hadnot Point aquifer, and (3) surreptitious dumping of chemical contaminants from training exercises for firemen. The Plaintiffs contend that the Tarawa Terrace and Hadnot Point contamination go to wells, underground piping and delivering systems, and water treatment plants that constitute “improvements to real property” and thus implicate North Carolina General Statute § l-50(a)(5) which contains a shorter six year statute, of repose than § 1-52(16). Further, the Plaintiffs contend a defendant may not take advantage of the six year statute of repose under § l-50(a)(5) if the property owner was in actual control or possession of the improvement and knew or should have known of the defective and unsafe conditions or the property owner engaged in willful or wanton negligence or conceal-. ment.
North Carolina General Statute § 1-50(a)(5) provides:
No action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of- the improvement.,
In Wilson v. McLeod Oil Co., the North Carolina Supreme Court discussed § l-50(a)(5) and the purpose of its statute of repose. The Court explained that the:
exception found in this section is based on the continued - duty of owners and tenants to inspect and maintain the premises. Gillespie v. Coffey, 86 N.C.App. 97, 356 S.E.2d 376 (1987). Furthermore, § 1-50(5) was not intended to limit the liability of persons in the Warrens’ situation because it was “designed to limit the potential liability of architects, contractors, and perhaps others in the construction industry for improvements made to real property.” Lamb v. Wedgewood South Corp. 308 N.C. 419, 427-28, 302 S.E.2d 868, 873 (1983) (interpreting similar language in an earlier version of the statute). This statute limits the liability for certain groups who might otherwise be subject to a longer statute of limitation. Id. at 427, 302 S.E.2d at 873. The exception in this statute indicates that the limited period of liability was not intended to apply to those in actual possession or control of the land if they knew or had reason to know of the defect.
Later cases confirm the fact that § 1-50(a)(5) was meant to address the liability of. architects, designers, and contractors. For example, in Dawson v. North Carolina Department of Environment and Natural Resources, the court considered the purpose of §, l-50(a)(5) and noted that:
the plain language of the statute indicates that the statute does not apply unless the action “aris[es] out of the defective or unsafe condition of an improvement to real property.” N.C.- Gen. Stat. § l-50(a)(5)(a). Indeed, our Supreme Court has held:
In order for this statute to apply, three circumstances must exist: (1) the action must be for recovery of damages to real or personal property, (2) the damages must arise out of the defective and unsafe condition of an improvement to real property, and (3) the party, sued must have been involved in the designing, planning, or construction of the defective or unsafe improvement.
Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 302, 271 S.E.2d 385, 391 (1980) (emphasis added).
Similarly, in Trustees of Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., 313 N.C. 230, 239, 328 S.E.2d 274, 280 (1985) (emphasis added), the Court held that N.C. Gen. Stat, § l-50(a)(5) “deals with actions for damages for breach of contract, negligence, and recovery of economic or monetary loss in general arising from faulty repair or improvement to real property against, among others, persons who furnish the design for or supervise the construction of such repair or improvement,',..” Phrased differently, the statute “deals expressly with claims arising out of defects in improvement to realty caused by the performance of specialized services of designers and builders,” Id., 328 S.E.2d at 279-80 (emphasis added).
In sum, a prerequisite for application of N.C, Gen, Stat, § l~50(a)(5) is that there must have been an improvement to real property and that improvement must be either defective or unsafe.
Here, the Plaintiffs contend that the wells, underground piping and delivery systems, and water treatment plants constitute improvements to real property under § 1 — 50(a)(5)! The Plaintiffs assert that the wells and water treatment plants were contaminated and therefore were unsafe or defective. Presuming that § l-50(a)(5) is the appropriate statute of' repose, the Plaintiffs then go on to state that the Government cannot take advantage of this statute of repose because it has remained the landowner of the property in' question and was aware of the “improvements” re-' garding the'water treatment system and engaged in “willful and wanton negligence."
Significantly, however, there is no contention that the design or construction of the water treatment plants or wells was’ defective such that it caused the contamination of the water. Rather, the Plaintiffs clearly assert that the Government itself, or individuals permitted by the Government to be on the property, dumped chemicals into the ground such that the water table became contaminated. It is the dumping and the failure to monitor water quality, the Plaintiffs contend, that caused the ’ contamination, not any malfunction with the water treatment and delivery system. Thére is no contention that the water treatment system failed to operate as designed. Based on these allegations, the court finds that section l-50(a)(5) does not apply because the issue here is not one of a “defective or' unsafe condition of an im--provement to real property.” Thus, the statute of repose in § 1-52(16) does apply.
For all of the foregoing reasons, the court reaffirms that the ten-year North Carolina statute of repose in § 1-52(16) applies to the Plaintiffs’ claims. There appears to be no disagreement that the affected wells were taken out of use m 1987. The earliest claim made by any Plaintiff was in .1999, after the ten-year period of repose had expired. The Plaintiffs’ claims, therefore, are barred. However, the Plaintiffs now argue that there is a factual dispute as to when the Government took its last action that would start the repose clock ticking. The Plaintiffs offer two theories: (1) the Government continued to make omissions during the ten-year period of repose; and (2) newly discovered evidence gives rise to a recent duty to warn claim not barred by the statute of repose. The Plaintiffs point to a 2012 report of the Agency of Toxic Substances Disease Registry (“ATSDR”) that contamination also occurred at the Hadnot Point fuel farm and that contamination by chlorinated solvents occurred in the drinking water at Camp Lejeune from at least 1957 through 1987. The Plaintiffs contend that the Government failed to warn of this contamination and engaged in fraudulent concealment of information.
Specifically, the Plaintiffs allege: (1) the Government delayed sufficient testing and shut down of the impacted wells from at least 1982 and reliable testing was not reported until 2010, (2) the Government covered up the causal link between contamination and injuries by concealing information about groundwater contamination, (3) the Government continues to “instill confidence” in those exposed that there is no link between the contamination and injury and “instill doubt” in the minds of victims that there was any problem, (4) the. Government repeatedly attempted to hide information about contamination, (5) the Government did not notify victims of potential contamination until 2008 and the notification letter,.itself, continued the Government’s concealment, and (6) all of these acts caused victims to delay seeking treatment for latent diseases and to delay filing suit.
The Government responds that (1) these claims are still, barred by the statute of repose if the underlying conduct occurred more .than ten years before a claim was filed because the statute of repose does not run anew with every occurrence of continuing acts or omissions that fail to ameliorate an injury and alternatively (2) these claims would be barred by the discretionary function exception under the FTCA.
.In Hodge v. Harkey, the plaintiffs— neighboring landowners — filed suit against a gas station and the oil company that supplied the station with gas, alleging that their property had become contaminated from underground storage tanks at the gas station. The defendants raised the ten-year statute of repose contained in § 1-52(16). The plaintiffs responded that the defendants were either obligated to or. undertook certain repairs and remediation efforts which tolled the statute of repose. The court rejected the plaintiffs’ arguments. “This Court has previously held that a statute of repose containing ‘no action’ language barred all claims, including claims seeking to extend liability for subsequent repairs or remedial measures.” Similarly, in Monson, the court held that “[t]o allow the statute of repose to toll or start running anew each time a repair is made would subject a defendant to potential open-ended liability for an indefinite period of time, defeating the very purpose' of statutes of repose....” North Carolina holds that “[substantive rights, such as those created by the statute of repose are not subject to tolling.”
These decisions are not surprising. The Supreme Court in Waldburger addressed the unique nature of statutes of repose. The Court explained that a “statute of repose ... puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.” Because the repose is not related to the accrual of the cause of action, it is the “equivalent” to a “cut off’ or an “absolute bar” that may take place prior to the occurrence of discovery of an injury. The Court explained that a “statute of repose is a judgment that defendants should be free from liability after the legislatively determined period of time, beyond which the liability will no longer exist and will not be tolled for any reason.” Accordingly, “[s]tatutes of repose ... generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiffs control.”
For these reasons, the court finds that any failure to warn claims — including alleged “renewed” duty to warn of the release of the ATSDR report — do not “toll” or restart the statute of repose. The court GRANTS the Government’s motion to dismiss [127]. The court finds that all the Plaintiffs’ claims based on North Carolina law are barred by the ten-year statute of repose contained in North Carolina General Statute § 1-52(16). Nonetheless, in the alternative, the court addresses below whether the discretionary function exception under the Federal Tort Claims Act would also apply to the Plaintiffs’ North Carolina law claims as well as encompass the newly alleged claims that might be governed by law other than North Carolina.
B. Motion to Dismiss (Feres)
The Government argues that for those Plaintiffs who were service members at the time their claims accrued, in addition to the North Carolina statute of repose, the Feres doctrine also bars any recovery against the United States under the Federal Tort Claims Act for claims directly related to the contamination of the water supply as well as for any alleged failure to warn of the contamination. The Plaintiffs respond that these service members were not always on active duty at Camp Le-jeune and the Feres doctrine should not be applied when there are times of furlough or inactive service. The Plaintiffs further argue that the court should not consider the failure to warn claims as one unified claim, but rather the court should find the Feres doctrine applies only to the times upon which the Government’s obligation to warn arose while a particular plaintiff was on active duty as a service member.
It has long been established that the “Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” The court considers three factors: “(1) duty status, (2) location, and (3)' activity, to determine whether a service member’s injuries resulting from government negligence ... are incident to service [,] ” and thus subject to the doctrine announced in Feres. The Eleventh Circuit has held that “the serviceman’s duty status was the most important criterion in determining whether an injury was incident to military service.” “Where the claimant is injured on base while on ‘active duty,’ Feres applies virtually, as a matter of law.”
Here, there is no dispute that for at least part of their time in service Plaintiff military service members were on active duty at Camp Lejeune. • Thus, it is clear that the claims of those service members that accrued while they were on active duty are barred by the Feres doctrine. The Plaintiffs’ alleged exposure to contaminated water occurred over a period of time. This is not a situation where one incident is the cause of injury and whether the service member was on active duty or on furlough at the time of that singular incident can- .be readily determined. There is no way to parcel the Plaintiffs’ alleged injuries between times of active duty and times of furlough. Given the policy considerations behind the Feres doctrine, the court rejects the Plaintiffs’ argument that if the service member was not on active duty for every single day of his time as a service member then Feres cannot apply.
As to the second factor, these service members were clearly located on the Camp Lejeune base which points to the application of the Feres doctrine. Finally, while the Plaintiffs, were not always engaged in a “military” activity, Feres, itself, makes clear that sleeping while stationed on active duty at a military base is an activity “incident to service” and therefore satisfies the third factor. Accordingly, the court finds that the claims raised by the Plaintiffs when they were service members are barred by the Feres doctrine.
More complicated are the “failure to warn” claims of service members arising after their discharge from service. In Cole v. United States, the court considered the claims of the representatives of a deceased service member who alleged that the Government should have known of the dangers of radiation exposure experienced on a ship used for atomic bomb testing but failed to warn the service member. In particular, the plaintiffs claimed that after the service member was discharged from active duty, the Government’s knowledge of the dangers “expanded” to the point where a'“new duty to warn” was triggered.
The court recognized that the courts of appeal “universally applied the Feres doctrine to bar such suits in which the duty to warn originated when the injured serviceman was in the armed forces and merely continued after discharge.” But the Cole court found that the plaintiffs’ allegations of post-discharge conduct by the Government would take the claim outside of the Feres bar. The Court stated:
Our review of the law in this area suggests that in a case alleging a failure by the government to warn of in-service active-duty exposure to hazardous substances, the crucial inquiry is whether the purported conduct of the government giving rise to the plaintiffs cause of action occurred while the injured party was still a member of the armed forces. Under this standard, the claim in the plaintiffs’ proposed amendment would not be barred by the Feres doctrine. The relevant ‘injury’ here is the aggravation or perpetuation of Cole’s radiation-induced condition due to the government’s failure to discharge its new duty to -warn. It is urged that the conduct by the United States causing this injury occurred entirely after he left the service.
Cole contains an extensive policy discussion of. why the court found that the post-discharge allegations did not implicate the policy behind Feres.
The court, however, need not resolve whether the “post-discharge” failure to warn claims would survive Feres because the Government argues in the alternative that even if they do under-Cole; the Plaintiffs’ failure to warn claims are barred by the discretionary function doctrine. The court addresses this argument below. For the foregoing reasons, the court GRANTS the Government’s motion to dismiss on the basis of the Feres doctrine [61]; DENIES AS MOOT the Plaintiffs’ motion for oral argument. [72]; DENIES AS MOOT the Plaintiffs’ motion for extension of time to complete discovery and to stay [83]; and GRANTS the Government’s motion to dismiss as to the Feres doctrine [127].
C. Motion to Dismiss (Discretionary Function Exception)
The Plaintiffs raise a variety of negligence claims against the Government: (1) disposal of pollutants and contaminants at Camp Lejeune, (2) failure to protect the Camp Lejeune water supply from contamination, (3) failure to investigate and remediate contamination, and (4) failure to adequately warn inhabitants of exposure to contaminated water. The Government contends that even if these claims were not barred by the statute of repose, the Plaintiffs’ negligence and “failure to warn” claims are also barred by the “discretionary function” exception to the Federal Tort Claims Act. The Plaintiffs respond that the discretionary function exception is not applicable because the regulations issued by the Navy Bureau of Medicine and Surgery (“BUMEDs”) as well as other regulations provided mandatory duties and specific courses of action with respect to safe water supply such that the Government’s obligations in this area were ministerial and not discretionary. The Plaintiffs further argue that the Government made the choice to provide its own water supply at Camp Lejeune rather than use the local municipality’s water, and thus, these actions become akin to business or routine maintenance of property.
As the court explains above, there are exceptions to the Government’s liability under the FTCA. One of those is the “discretionary function” exception contained in 28 U.S.C. § 2680(a). “These exceptions must be strictly construed in favor of the United States, and when an exception applies to neutralize what would otherwise be a waiver of immunity, a court will lack subject matter jurisdiction over the action.”
Section 2680(a) exempts from FTCA liability:
(a) Any 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.
“In short, the discretionary function exception serves to preserve sovereign immunity for any claim that is based on a federal agency or employee’s performance or nonperformance of a discretionary task, even if, in so acting, the agency employee may have abused his discretion.”
“In guiding the courts’ application of the discretionary function exception, the Supreme Court has formulated a two-part test. First, the conduct that forms the basis of the suit must involve an element of judgment or choice by the employee.” “In determining whether judgment or choice is present in the particular conduct at issue, the inquiry focuses on whether the controlling statute or regulation mandates that a government agent perform his or' her function in a specific manner.” “If a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, the Government will have failed to show that the action at issue allowed for the employee’s exercise of judgment or choice because, in that case, the employee had no rightful option but to adhere to the directive.” “Conversely, unless a federal statute, regulation, or policy specifically prescribes a course of action embodying a fixed or readily ascertainable standard, it will be presumed that the particular act involved an element of judgment or choice.”
“If the Government has met this first element of the test for applying the exception, then the second part of the test requires the court to determine whether that'judgment is of the kind that the discretionary function exception was designed to shield.” “A particular decision will be of the kind protected by the exception if it is the type of decision that one would expect to be inherently grounded in considerations of policy.” “Indeed, when a government agent is permitted to. exercise discretion in making a particular decision — whether that permission is express or implied; — it must be presumed that the agent’s aets are grounded in policy when exercising that discretion.” “Finally, in’ examining whether an employee’s discretion is of the type grounded in public policy, one uses an objective test, and the employee’s subjective intent is irrelevant.”
The court finds here that its ruling on the discretionary function exception is a matter properly considered under Rule 12(b)(1) subject-matter jurisdiction. Because the court permitted a period of discovery on the discretionary function exception, the court finds that this is not simply a facial challenge to which the court would need to assume the truth of the allegations in the complaints and proposed amended complaints, rather the court views this as a factual challenge pursuant to which the Plaintiffs bear the burden of proof to show that a waiver of,sovereign immunity exists, Thus, the court may consider 'mat-, ters outside of the pleadings to determine whether .it has subject-matter jurisdiction.
Based on the arguments presented by the Plaintiffs, the court finds there is some confusion in the briefing in distinguishing between' the issue of negligence and the issue of whether a specific federal statute or regúlátion provided guidance such that any action taken or not taken was not a matter of discretion, but rather was mandatory. For this reason, the court finds it' useful to give more measured consideration to Autery v. United States. In Au-tery, the plaintiffs filed suit against the United States for death and injuries sustained by passengers in an automobile when two black locust trees fell on their car in the Great Smoky Mountain National Park. Over a decade before the accident, the National Park Service had issued a “directive” which stated:
Protection of the visitor, and park and concessioner employees, from violations of laws and regulations and from hazards' inherent in the park environment, is a prime responsibility of the National Park Service. The saving and safeguarding of human life takes precedence over all other park management activities, whether the life is of the visitor, conces-sioner, or park employee....
Pursuant to that directive, the unwritten policy at the time of the accident was to “make every reasonable- effort within’ the constraints of budget, manpower, and equipment- available to detect, document, remove, and prevent tree hazards.” Un-der this policy, rangers would visually inspect trees and report back any known hazardous trees for removal. Natural resources specialists at the Park were- also aware of the special danger facing black locust trees due to bore infestation and the accompanying recommendation to remove such trees. Park personnel met to discuss the information about black locust trees.
In carefully considering both United States v. Gaubert, and Berkovitz v. United States, the Autery court first analyzed what policy issue was before it. The court stated:
The district court’s inquiry, on the other hand, by asking whether the park officials had discretion to remove “hazardous” trees, begs the question. The tree inspection program was designed to identify which trees were hazardous. Whether park personnel had discretion in executing that plan is the relevant issue. The district court’s analysis appears to collapse the question of whether the Park Service was negligent into the discretionary function inquiry. That is, after finding, that the Park Service had knowledge of the danger of black locust trees, the district court imposed a “reasonableness” requirement on the government’s conduct. •
The court found, instead, that it “is the governing administrative policy, not the Park Service’s knowledge of danger, however, that determines whether certain conduct is mandatory for purposes of the discretionary function exception. The FTCA expressly provides that the exception applies to policy judgments, even to those constituting abuse of discretion.”' The court further stated “the relevant inquiry here is whether controlling statutes, regulations and administrative policies mandated that the Park Service inspect for hazardous trees in a specific manner. If not, then the Park officials’ decision to employ a particular inspection procedure — and its execution of that plan — is protected by the discretionary function exception.”
The Autery court found that the Park Service had granted rangers discretion in inspecting trees and in determining which trees should be removed. The court distinguished Phillips v. United States, noting that the tree inspection plan did not “compel park employees to inspect certain trees on certain days or remove a particular number of trees per week.” Ultimately, the Autery court found that there was