Abbey v. United States of America, Department of the Navy

Background

The plaintiffs are current and former San Francisco Police Department employees who worked at Building 606 at the former Hunters Point Naval Shipyard in San Francisco. The plaintiffs also include spouses and domestic partners of those employees, as well as surviving family members or personal representatives of deceased former employees.

The employee plaintiffs alleged that they were exposed to unsafe levels of radioactive and other hazardous substances at Building 606 because of negligent acts by the Navy. Their claims against the United States included negligent undertaking, negligent failure to warn, negligence per se, negligent misrepresentation, public nuisance, loss of consortium, wrongful death, negligent infliction of emotional distress based on fear of cancer, and intentional infliction of emotional distress.

Motion and analysis

The United States moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction. The government argued that the claims were outside the Federal Tort Claims Act’s waiver of sovereign immunity because statutory exceptions applied.

The court identified a mismatch between the first amended complaint and the plaintiffs’ opposition brief. In their brief, the plaintiffs said they were not asserting that the Navy was legally responsible for Tetra Tech’s conduct and instead claimed that the Navy was directly liable for failing to monitor and oversee Tetra Tech’s disclosures. The complaint, however, included allegations about the Navy acting through Tetra Tech, about Tetra Tech and the Navy together, and about both the Navy’s direct and indirect concealment and misrepresentations.

The court held that these allegations did not give the United States fair notice of the claims and the grounds on which they rested. It also said that the lack of clarity made it difficult to analyze the independent-contractor exception and the discretionary-function exception to the Federal Tort Claims Act. The amended complaint therefore needed to identify which specific actions by the Navy were being challenged.

The court further stated that the misrepresentation exception appeared likely to bar at least some allegations as pleaded. It explained that the exception is not limited to claims involving financial loss in commercial transactions and can apply to personal-injury claims arising from misrepresentations or failures to warn. The court directed the plaintiffs to identify conduct other than alleged misrepresentations that formed the basis of their claims.

Disposition

The court dismissed the first amended complaint in its entirety, with leave to amend. It stated that no new claims or defendants could be added without the court’s prior approval. The order did not resolve the underlying liability allegations on their merits; it dismissed the complaint at the pleading and jurisdictional stage because the claims and challenged conduct were not stated clearly enough for the court to conduct the required analysis.