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

Background

The plaintiffs were current and former San Francisco Police Department employees who worked at Building 606 at the former Hunters Point Naval Shipyard. They alleged that they were exposed to unsafe levels of radioactive and other hazardous substances. The plaintiffs also included spouses and domestic partners of the employees, as well as surviving family members or personal representatives of deceased former employees.

The second amended complaint asserted six groups of tort claims against the United States: negligence-based claims, public nuisance, loss of consortium, wrongful death, negligent infliction of emotional distress based on fear of cancer, and intentional infliction of emotional distress. The plaintiffs alleged that the Navy failed to warn the City and County of San Francisco about hazardous substances used or released at the site and made misleading statements about the property’s safety.

Motion and Legal Standard

The United States moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which allows dismissal when the federal court lacks subject-matter jurisdiction. The court explained that the United States is protected from lawsuits by sovereign immunity unless it has expressly waived that protection. The Federal Tort Claims Act waives immunity for certain tort claims involving injury or death caused by negligent or wrongful acts of federal employees, but the Act contains exceptions.

The exception at issue was the misrepresentation exception in 28 U.S.C. § 2680(h). That exception preserves the government’s immunity from claims arising out of misrepresentation. The court also treated negligent failures to provide information or warnings as misrepresentation within the meaning of the exception.

Court’s Analysis

The court concluded that misrepresentation was central to every claim in the second amended complaint, rather than merely incidental. The complaint repeatedly alleged that the Navy made false or incomplete statements, concealed information, or failed to warn the City and its employees about hazardous substances. The court emphasized the complaint’s allegation that the Navy’s failure to warn was a substantial factor in causing the plaintiffs’ injuries and that the City relied on the Navy’s statements when it placed employees at the site.

The court rejected the plaintiffs’ argument that the exception did not apply because they did not personally rely on the Navy’s statements. Relying on Ninth Circuit and Supreme Court authorities discussed in the opinion, the court concluded that the statements did not need to be made directly to the plaintiffs and that the plaintiffs did not need to have personally relied on them for the exception to apply.

The court also rejected the plaintiffs’ argument that the Comprehensive Environmental Response, Compensation, and Liability Act required disclosure and therefore limited or suspended the misrepresentation exception. The court found that the plaintiffs had not presented controlling authority supporting that theory and noted that the relevant statutory language did not remove the alleged disclosure violations from the exception.

Finally, the court rejected the plaintiffs’ characterization of the case as involving the Navy’s negligent performance of operational tasks or its duties as a landowner. The court concluded that the allegations remained centered on the Navy’s alleged failures to disclose information and warn about hazardous substances. Because the misrepresentation exception applied, the court found it unnecessary to decide the government’s additional arguments based on the contractor and discretionary-function exceptions.

Disposition

Judge James Donato granted the United States’ motion to dismiss. The court dismissed the second amended complaint in its entirety for lack of subject-matter jurisdiction. The court stated that the dismissal was with prejudice because the plaintiffs had already been given an opportunity to amend, the prior order had identified the misrepresentation problem, and the plaintiffs had not shown that another amendment would help or requested another opportunity to amend. The case was closed, and judgment was ordered against the plaintiffs.