Clendening v. United States, No. 20-1878 (4th Cir. 2021)Annotate this Case
Clendening sued the government for her husband’s wrongful death allegedly caused by his exposure to contaminated water and environmental toxins while stationed at the Marine Corps Base Camp Lejeune in Jacksonville, North Carolina. Her complaint also asserted claims for subsequent fraudulent concealment and failure to warn relevant personnel of the severity, scope, and impact of said exposure.
The district court dismissed all claims for lack of subject-matter jurisdiction The Fourth Circuit affirmed. The wrongful death claims are barred under the “Feres” doctrine and the failure-to-warn claims are barred under the Federal Torts Claims Act’s “discretionary function” exception, 28 U.S.C. 2680(a). The exposure cited as the cause of Clendening’s death stemmed from the relationship between Clendening and his military service; the military’s provision of water and accommodations to its troops is clearly activity incident to service. While the failure-to-warn claim is not barred by Feres, the government had no mandatory duty to warn Clendening of his exposure after the fact. The “challenged conduct is the product of judgment or choice,” and involved a decision “based on considerations of public policy.”