As a sovereign entity, the United States government is immune from suit unless it consents to be sued.¹ However, its sovereign immunity may be waived under certain circumstances under the Federal Torts Claim Act (“FTCA”), which is the exclusive remedy for state law torts committed by federal employees within the scope of their employment.²

Tristan Perkins relied on the FTCA when suing the United States following her mother’s mesothelioma diagnosis and death allegedly caused by asbestos exposure.³ Tristan Perkins’s father, Harang Joseph Perkins, was an enlisted United States Navy Machinist Mate, who worked at the Puget Sound Naval Shipyard in Washington between 1968 and 1974.⁴ Mr. Perkins’s wife, Gerladine Perkins, was allegedly secondarily exposed to asbestos fibers when laundering his work clothes worn to the Shipyard.

The United States argued for dismissal using the exception to the FTCA’s waiver of sovereign immunity for discretionary governmental conduct.⁵ Conduct is considered discretionary if it involves room for judgment or choice by the acting government employee.⁶ The United States argued that its conduct in relation to Navy asbestos policies in place at the Shipyard allowed for employee discretion, and, as such, its decision making should be insulated from judicial second guessing via a tort claim.⁷

Courts use a two-step test to determine whether the discretionary function exception applies.⁸ First, a court must determine whether the challenged action involves judgment or choice.⁹ If there is a statute or policy directing mandatory and specific action, there is no element of discretion and the test ends.¹⁰ If the challenged action does involve judgment or choice, then the court moves on to the second step, which requires the court to “consider ‘whether that judgment is of the kind that the discretionary function exception was designed to shield,’ namely, ‘only governmental actions and decisions based on considerations of public policy.’”¹¹

When the United States District Court for the Western District of Washington employed this test in a December 2024 bench trial, it found that while some of the Navy’s asbestos-related policies were discretionary, others were not.¹² For example, Chapter 9390 of Naval Ships Technical Manual was found to require, among other things, that discarded, scrap asbestos materials immediately be placed in plastic bags that are then sealed and that workers performing rip out procedures are to be supplied with clean or disposable coveralls for each work shift.¹³ Therefore, the United States was subject to suit under the FTCA and the Court adjudicated the merits of Plaintiff’s claims, including, whether, for example, a violation of Chapter 9390 led to asbestos adhering to Mr. Perkins’s clothing that was then brought home for laundering.¹⁴

Ultimately, the Court held that Plaintiff failed to prove that Gerladine Perkins experienced more than de minimis para-occupational asbestos exposure resulting from actionable Navy conduct.¹⁵ The evidence showed that Mr. Perkins generally did not perform work with or near asbestos-containing materials and that any failure by the Navy to comply with asbestos-containment procedures would not have increased asbestos fibers on his clothing.¹⁶ Notably, the Court held that Plaintiff’s experts’ were unconvincing and classified their opinions as speculative.¹⁷ Plaintiffs’ experts assumed Mr. Perkins received substantial asbestos exposure merely due to working at the Shipyard and that this presumed exposure was carried home to Gerladine Perkins via dusty and dirty clothing, which was a description provided by his daughter more than 50 years later.¹⁸

Courts regularly recognize the government’s immunity to suit based on an employee’s purportedly tortious conduct—especially when it comes to discretionary conduct. This has been the case numerous times in asbestos cases, where courts have held that those claims are precluded by the discretionary function exception.¹⁹ Perkins highlights a party’s ability to contravene this exception to the FTCA’s waiver of sovereign immunity and may be of interest to non-government defendants who have long asserted that the actions (or inactions) of the Navy and its personnel served ultimate reason for the exposure and resulting asbestos disease. It is possible that the Court’s FTCA analysis will encourage plaintiffs and defendants alike to include the United States government in future asbestos cases as a defendant or third-party defendant. Nevertheless, the Perkins ruling also serves as a reminder that even if the suit is allowed to proceed, a party must still establish causation, which may prove particularly difficult in a federal court bench trial.

1. Perkins v. United States, 2024 WL 5232578, at *2 (W.D. Wash. 2024) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). ↩︎
2. Perkins, 2024 WL 5232578, at *2 (citing 28 U.S.C. § 1346(b) and 28 U.S.C. § 2679(b)(1)). ↩︎
3. Perkins, 2024 WL 5232578, at *1. ↩︎
4. Perkins, 2024 WL 5232578, at *1. ↩︎
5. Perkins, 2024 WL 5232578, at *2. ↩︎
6. Mynatt v. United States, 45 F.4th 889, 896 (2022). ↩︎
7. Perkins, 2024 WL 5232578, at *2. ↩︎
8. Perkins, 2024 WL 5232578, at *2 (citing Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)). ↩︎
9. Perkins, 2024 WL 5232578, at *2 (citing Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)). ↩︎
10. Perkins, 2024 WL 5232578, at *2 (citing Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)). ↩︎
11. Perkins, 2024 WL 5232578, at *2 (citing Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting Berkovitz v. United States, 486 U.S. 531, 536–37 (1988)); Perkins, 2024 WL 5232578, at *2 (“The Supreme Court explained in United States v. Gaubert that ‘if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.’ 499 U.S. 315, 324 (1991). ‘When established governmental policy, as express or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.’ Id.”.) ↩︎
12. Perkins, 2024 WL 5232578, at *1, *3. ↩︎
13. Perkins, 2024 WL 5232578, at 3-4. ↩︎
14. Perkins, 2024 WL 5232578, at 3-4. ↩︎
15. Perkins, 2024 WL 5232578, at 15-17. ↩︎
16. Perkins, 2024 WL 5232578, at 15-17. ↩︎
17. Perkins, 2024 WL 5232578, at 15-17. ↩︎
18. Perkins, 2024 WL 5232578, at 15-17. ↩︎
19. Bobo v. AGCO Corp., 981 F. Supp. 2d 1130, 1149–50 (N.D. Ala. 2013) (“See, e.g., Sea–Land Service Inc. v. United States, 919 F.2d 888, 892 (3d Cir.1990) (‘The government’s failure, both during and after war, to warn of the potential health risks of asbestos [on government operated ships] once it learned of them was a matter susceptible to policy analysis and within the discretionary function exception.’) (alteration supplied); In re Joint E. & S. Districts Asbestos Litigation, 891 F.2d 31, 38 (2d Cir.1989) (‘[W]e find that the government’s failure to adopt a safety program to warn of asbestos-related dangers on board [government operated] ships in the midst of World War II is covered by the discretionary function exception.’) (alterations supplied); Lively v. United States, 870 F.2d 296, 298 (5th Cir.1989) (affirming the district court’s decision that the discretionary function doctrine precluded liability to GSA’s decision ‘to proceed with a program [of stockpiling asbestos] without warning of the hazards of the substance to which it was exposing the public’) (alteration supplied); Gordon v. Lykes Brothers Steamship Co., Inc., 835 F.2d 96, 100 (5th Cir.1988) (‘The government’s decision not to establish a safety program for seaman working with asbestos was a similar choice [protected by the discretionary function doctrine].’) (alteration supplied). See also Morgen v. U.S. Department of Navy, 323 Fed.Appx. 515, 516–17 (9th Cir. 2009) (affirming a district court’s application of the discretionary function doctrine to the Navy’s failure to warn naval shipyard employees about the dangers of asbestos exposure).”) ↩︎