SAN FRANCISCO (CN) — San Francisco Police Department officers who claim they were exposed to radioactive contamination while working at the Hunters Point Naval Shipyard told a Ninth Circuit panel Wednesday that a federal judge erred by letting the U.S. government off the hook in their lawsuit.
The federal judge ruled in 2023 that the government had immunity because the officers' claims were based off of a misrepresentation from a government contractor. Their attorney Sara Peters told the Ninth Circuit panel the misrepresentation exception should not apply because the officers were not relying on misrepresentations but rather the transfer of the Hunters Point property from the Navy to the city of San Francisco, and what happened afterwards.
Tetra Tech EC, an environmental analysis firm, was paid more than $250 million by the U.S. Navy from 2006 to 2012 to clean up the site. Whistleblowers came forward with accusations that Tetra Tech falsified reports during that period, and the U.S. Environmental Protection Agency released a review finding that 90% to 97% of soil samples in two areas of the site were potentially compromised or purposefully falsified.
The class of SFPD officers sued the U.S. Navy in 2020, claiming Navy did not do enough to monitor Tetra Tech's cleanup of the shipyard, which operated as a top-secret radiological test site from 1946 to 1969. Hunters Point was also a place where ships returning from hydrogen bomb tests were decontaminated. Since 1997, the SFPD stationed hundreds of officers at the shipyard's Building 606 after the city leased the shipyard from the Navy in 1997.
Neither Tetra Tech nor the city and county of San Francisco are parties in the officers' action.
Peters said Congress limits misrepresentation exemption claims under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which aims to ensure that local governments are actively involved in the management and cleanup of hazardous waste sites within their jurisdictions.
U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, said he was “struggling” to understand Peters’ argument because the gravamen of the plaintiffs’ complaints seemed to center entirely on misrepresentation.
“Well, the injury to the plaintiffs is not caused by their reliance on a misrepresentation but rather by a property transaction. So the plaintiffs here, the current and former employees of the San Francisco Police Department, who were stationed out at the shipyard by virtue of this lease, they were injured, physically injured, by a property transaction that resulted in them being stationed there,” Peters replied. “That property transaction came about through misrepresentations by the United States Navy to the city of San Francisco. But that's not the tort since it was not the plaintiffs relying on those representations that led to their injury.”
Albert Lai, counsel for the government, said that Peters was arguing for an exception in the case because a party other than the plaintiffs — the Navy — was duped by misrepresentation. Still, he said, her entire argument was still grounded in misrepresentation.
“A court should be reading a complaint to see what the substance of the claims are. It's not about how a plaintiff chooses to style their claims. It's about really what is the gravamen of the case, Lai said. “And here the gravamen of the case are misrepresentations allegedly made by the U.S. Navy. Their entire claim is that the Navy allegedly knew the building was contaminated and did not do any remediation at all.”
On rebuttal, Peters said her clients' action did not meet the legal elements for a claim of misrepresentation.
“And so while we very explicitly do allege that there are false statements that go to the core of our claims and of the tort at issue, we absolutely do not concede that any of the causes of action state the legal elements of a claim for misrepresentation,” she said.
The panel took the matter under submission. It did not give a timeline on when it would rule.
Land developers and homeowners also sued Tetra Tech in the matter, with a $6.3 million settlement in 2021 resolving some of the claims.
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