173 F.R.D. 1

(Cite as: 173 F.R.D. 1, *5)

homeowners' claims did not wait until the homeowners had enough information to calculate their damages. Sprint Communications, 76 F.3d at 1228. To accept the homeowners' view would frustrate the purpose of the jurisdictional limitations period, which is to encourage the prompt presentation of claims. Under the homeowners' view, they could have waited years to sell their homes, extending the limitations period indefinitely beyond the discovery of the buried munitions.

The homeowners here filed their administrative claims in May 1996, over two years after the unearthing of the material and the demand letter. The homeowners' failure to file an administrative claim within two years of when their claims accrued accordingly bars their claims under the FTCA.

III. THE COURT WILL GRANT MILLER'S MOTION TO DISMISS THE HOMEOWNERS' CLAIMS AGAINST MILLER.

[8] In light of the Court's ruling with respect to the government's motion to dismiss the homeowners claims, the Court will decline to exercise supplemental jurisdiction over the homeowner's claims against Miller. The homeowners and Miller are both citizens of the District of Columbia; thus, there is no diversity jurisdiction. 28 U.S.C. § 1367 provides for supplemental jurisdiction over related

Page 5

claims if a court has original jurisdiction over other claims in the action. However, under § 1367(c)(3), the Court may decline to exercise supplemental jurisdiction over a claim if the Court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). See also LaShawn A. v. Barry, 87 F.3d 1389, 1397 n. 10 (D.C.Cir.1996) (en banc) (if federal claims are dismissed before trial, state claims should be dismissed as well) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966)). The case is in the damages phase with respect to Miller and the United States. The issue of Miller's liability to the homeowners involves only matters of local law, which are best resolved in District of Columbia Court.

CONCLUSION

For the reasons set forth herein, the Court will deny the government's Motion for Reconsideration, will grant the government's Motion to Dismiss, and will grant Miller's Motion to Dismiss. Miller's Motion for Summary Judgment will be declared moot. The Court will issue an Order of even date herewith, consistent with the foregoing Memorandum Opinion and setting a schedule for trial on the damages issue remaining in this case.

END OF DOCUMENT

77-354 D-3

963 F.Supp. 1231

(Cite as: 963 F.Supp. 1231)

W.C. & A.N. MILLER COMPANIES, Plaintiff,

V.

UNITED STATES of America, Defendant.

Civil Action No. 96-00453.

United States District Court, District of Columbia.

March 21, 1997.

Landowner brought action against United States under Federal Tort Claims Act (FTCA) for damages allegedly arising from United States Army's burial of munitions during World War I on leased land. On defendant's motion to dismiss or for summary judgment, the District Court, Sporkin, J., held that: (1) plaintiff's claims were not barred by FTCA's effective date or independent contractor provisions; (2) plaintiff's claims arising from defendant's failure to warn of buried munitions were not barred by FTCA's discretionary function provision; (3) claims were not barred by statute of limitations; and (4) defendant owed duty to warn plaintiff, as a subsequent occupant of property, that defendant buried munitions on property.

So ordered.

Reconsideration denied, 1997 WL 251515.

[1] UNITED STATES ~78(14) 393k78(14)

Question of whether claim has accrued under Federal Tort Claims Act (FTCA) is matter of state law. 28 U.S.C.A. § 1346(b).

[2] LIMITATION OF ACTIONS —~55(2) 241k55(2)

Claim "accrues" when negligent act or omission complained of has had impact that results or will result in injury.

See publication Words and Phrases for other judicial constructions and definitions.

[3] UNITED STATES →78(2) 393k78(2)

Federal Tort Claims Act (FTCA) confers jurisdiction over claims for which injury occurred after Jan. 1, 1945, regardless of when act or omission complained of occurred; FTCA's effective date provision establishes jurisdiction on basis of

Page 6

when claims accrued rather than when allegedly tortious conduct occurred. 28 U.S.C.A. § 1346(b).

[4] UNITED STATES 78(4) 393k78(4)

Federal Tort Claims Act (FTCA) adopts commonlaw distinction between liability of employer for negligent acts of its employees and for negligent acts of those with whom it contracts; for government to be liable under FTCA, it must be shown that acts or omissions complained of were taken by employee of government. 28 U.S.C.A. §§ 1346(b), 2671.

[5] UNITED STATES 78(5.1) 393k78(5.1)

Landowner's claim, under Federal Tort Claims Act (FTCA), that United States Army was negligent in failing to take appropriate action after learning from its independent contractor that there were possible burial sites, shell and bomb pits, trenches, and possible test areas remaining from war effort was not barred by FTCA's independent contractor provision; landowner's challenge was to Army's conduct, not to contractor's conduct. 28 U.S.C.A. §§ 1346(b), 2671.

[6] UNITED STATES ←78(12) 393k78(12)

Discretionary function exception to district court jurisdiction under Federal Tort Clairns Act (FTCA) marks boundary between Congress' willingness to impose tort liability on United States and its desire to protect certain governmental activities from exposure to suit by private individuals; exception was designed to prevent courts from "second guessing," through decisions in tort actions, the way that government officials choose to balance economic, social, and political factors as they carry out their official duties. 28 U.S.C.A. § 2680(a).

[7] UNITED STATES 78(12) 393k78(12)

To determine whether discretionary function exception applies in particular Federal Tort Claims Act (FTCA) case, court must first determine whether any federal statute, regulation, or policy specifically prescribes course of action for employee to follow; if specific directive exists, then employee had no choice and no rightful option but to adhere to directive, but if no specific directive exists, court must make second determination of whether judgment is of the kind that FTCA exception was

963 F.Supp. 1231

(Cite as: 963 F.Supp. 1231)

designed to shield from liability, that is, a decision grounded in social, economic, or political policy. 28 U.S.C.A. § 2680(a).

[8] UNITED STATES —➡78(12) 393k78(12)

Discretionary function provision of Federal Tort Claims Act (FTCA) barred landowner's claims based on United States' allegedly wrongful burial of munitions during World War I, allegedly negligent investigation in 1986, and failure to remove munitions prior to landowner's discovery; United States' actions were types of conduct that implicated social, economic, or political judgment, and were thus beyond reach of FTCA. 28 U.S.C.A. § 2680(a).

[9] UNITED STATES →78(12) 393k78(12)

Discretionary function provision of Federal Tort Claims Act (FTCA) did not bar landowner's claims based on United States Army's failure to mark or warn that there were buried munitions on private land; Army's decision was not type of decision that involved social, economic, or policy considerations. 28 U.S.C.A. § 2680(a).

[10] LIMITATION OF ACTIONS ——95(7) 241k95(7)

Real estate business' claims under Federal Tort Claims Act (FTCA), for damages allegedly arising from United States Army's burial of munitions during World War I, were not barred by FTCA's two-year statute of limitations, despite argument that claims accrued when business' founders purchased property in question because founders should have been aware of Army's activities at time of purchase; even if founders knew that property was a testing site, there was no evidence that founders knew or had reason to know that Army had buried munitions beneath surface of property. 28 U.S.C.A. § 2401(b).

[11] NEGLIGENCE →→136(14) 272k136(14)

Question whether duty is owed is question of law to be determined by the court.

[12] NEGLIGENCE →2 272k2

Determination of whether duty should be imposed is made by weighing various policy considerations and

Page 7

reaching a conclusion that plaintiff's interests are, or are not, entitled to legal protection against conduct of defendant.

[13] UNITED STATES 78(5.1) 393k78(5.1)

Under District of Columbia law, as predicted by district court, United States Army owed duty to warn landowner, as a subsequent occupant of property, that Army buried munitions on property during World War I; when it buried live munitions, Army in effect "booby-trapped" the land, it had to be obvious to Army when it embarked on its disposal project that any subsequent user of land might need to excavate below the surface for subsequent construction, and Army was in best position to warn future occupants.

*1232 Amy L. Edwards and Christopher A. Myers, Holland & Knight, Washington, DC, for Plaintiff.

Roderick L. Thomas, Assistant United States Attorney, Eric H. Holder, Jr., United States Attorney, on the briefs, and Jeffrey D. Smith, Major, United States Army, of counsel, for Defendant.

MEMORANDUM OPINION

SPORKIN, District Judge.

INTRODUCTION

On March 8, 1996, the plaintiff W.C. & A.N. Miller Companies ("Miller") filed this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., for damages allegedly arising from the United States Army's burial of munitions [FN1] during World War I on leased land in northwest Washington in the District of Columbia. Compl. 11 1-5. These munitions initially were discovered by Miller in January 1993, when Miller was excavating a trench for utilities *1233 for a new home on land it owned. Compl. ¶ 13.

FN1. The Complaint alleges that the Army buried intact munitions, assorted ordnance-related debris, and laboratory material, including scrap metal and contaminated laboratory glass. Compl. 15. The Court shall refer to the buried material collectively as "munitions."

The defendant has moved for dismissal or, in the alternative, for summary judgment on the grounds

963 F.Supp. 1231

(Cite as: 963 F.Supp. 1231, *1233)

that: (1) the Court lacks subject matter jurisdiction over the plaintiff's claims; (2) the claims are barred by the applicable statute of limitations; and (3) the plaintiff has failed to state a claim upon which relief can be granted. The plaintiff opposes the defendant's motion. Based on the pleadings, the entire record herein, the law applicable thereto, and for the reasons expressed below, the Court will deny the defendant's Motion, will hold that the defendant breached its duty of care to the plaintiff to warn of the buried munitions, and will set a schedule to dispose of the remaining issue of damages in this

case.

BACKGROUND

On April 30, 1917, in a letter addressed to President Woodrow Wilson, American University's board of trustees offered the United States Government the use of its 91-acre campus in northwest Washington to support the war effort against Germany. See Martin K. Gordon, Barry R. Sude, Ruth Ann Overbeck & Charles Hendricks, A Brief History of the American University Experiment Station and U.S. Navy Bomb Disposal School. American University (Office of History Headquarters, U.S. Army Corps of Engineers, June 1994) at 15. On May 28, 1917, the Army Corps of Engineers established Camp American University (later renamed Camp Leach) on a portion of the property. The Bureau of Mines established the American University Experiment Station ("AUES") on the campus a short time later. Id. at 16-19. Control of AUES was transferred by President Wilson to the War Department's Gas Service (later called the Chemical Warfare Service) on June 25, 1918. Id. [FN2]

FN2. Camp Leach and AUES were distinct entities. The property subject to the present suit is that formerly occupied by AUES.

By summer and fall of 1918, there were 12 research sections and more than 1,000 personnel researching war gas problems at the AUES. Id. at 19-20. By the end of the war, there were nearly 2,000 military and civilian personnel supporting the AUES's Research Division. Id. at 20. When space was required for additional drill fields and training trenches, the Construction Division of the Quartermaster Corps leased adjoining properties owned by area residents. There were 153 structures

Page 8

of various sizes and types spread throughout the campus and adjoining properties, including privately-owned tracts. Id. at 23.

The American University land and surrounding properties became the site of a massive training, research, and testing ground for conventional and chemical warfare defensive and offensive techniques. Projects were conducted related to the development, testing, and manufacture of gases, toxic and incendiary munitions, smoke mixtures, and signal flares. Field tests were conducted using gas shells, smoke clouds and equipment, mortars and Liven's projectiles, hand grenades, incendiary and flaming liquid weapons, and signal lights. Id. at 17-19.

On November 9, 1918, the German government officially accepted President Wilson's terms for an armistice, and two days later, the fighting in Europe ceased. Id. at 31. On November 29, 1918, the War Department ordered the immediate and complete demobilization of the Chemical Warfare Service. Under this order, the AUES suffered a drastic reduction in personnel and a dismantling of much of its research and manufacturing equipment for shipment to the Edgewood-Arsenal. A year later, the War Department ordered the Chemical Warfare Service to immediately vacate the AUES. It transferred personnel, equipment, and material to Edgewood Arsenal. Id. at 35.

In 1986, in response to inquiries from American University, see Def's Mot., Exh. 11, the United States contracted with the Bionetics Corporation to conduct a photographic analysis of the area, see id. Exh. 12. Pursuant to Contract No. 68-03-3161, Bionetics produced a report in July 1986, which indicated "*1234 possible burial sites" of munitions and gas. Id. Exh. 12 at 14.

The Army also conducted its own document review in 1986 to determine whether historical records reflected a large-scale burial of munitions on the AUES. Id. Exh. 14-15. The document review produced "no official documentation of the alleged large-scale burial of munitions on the [AUES]." Id. Exh. 14 at 1. However, the review concluded that "it can be inferred that laboratory quantities of toxic materials were disposed of onsite prior to or following the documented transfer of personnel and equipment from the [AUES] to Edgewood Arsenal

963 F.Supp. 1231

(Cite as: 963 F.Supp. 1231, *1234)

in November 1919." Id. The review concluded that official correspondence from the period "strongly suggests that all munitions were removed to Edgewood Arsenal," but that the review "could not disprove the possibility that some materials remain buried on or near Camp American University (i.e., Camp Leach]." Id. Exh. 15 at 1. The review further concluded: "If any materials were buried, they were probably small quantities of laboratory or experimental materials. All sources we found were inconsistent with the notion of substantial quantities of any munitions or the components for munitions existing at [American University]." Id. Exh. 15 at 3. [FN3]

FN3. The only sources stating that munitions were buried were found to be historically suspect. Bothsources were references in 1921 issues of the AU newspaper, The American University Courier. Both sources refer to burying $800,000 worth of munitions at the end of the war, two and a half years earlier. See Def's Mot. Exh. 15 at 2-3.

The plaintiff Miller is a family-owned real estate business operating in the Washington metropolitan area. Compl. 12. The plaintiff alleges that, in or around 1927, it began to accumulate various parcels of land in northwest Washington. The plaintiff ultimately acquired approximately 300 acres of land in this area over a period of several years. This area later became known as Spring Valley. Id. ¶ 6. Over the years, Miller has developed its Spring Valley holdings into housing, commercial, and retail space. Id. ¶ 7.

On or about January 5, 1993, Miller was excavating a trench for utilities for a new home on land Miller owned in Spring Valley. It discovered objects that appeared to be old munitions. Miller promptly notified the District of Columbia government, which in turn notified the United States Army. Compl. 13. The Army promptly assumed responsibility for the situation and conducted a response action pursuant to the Defense Environmental Restoration Act, 10 U.S.C. §§ 2701-07, and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.

The Army conducted its investigation in two phases. Phase I was the emergency response phase

Page 9

of the investigation, which lasted 27 days, from January 5, 1993 to February 2, 1993. Compl. ¶ 14. During Phase I, the Army excavated in and around the area where the objects had been discovered. The Army removed intact munitions, assorted ordnance-related debris, and laboratory material, all from the World War I era. Compl. 15. During Phase II of the investigation, which extended into 1995, the Army continued to investigate for buried munitions in an area over 600 acres in size. The Army discovered additional live munitions and spent ordnance and debris. Compl. 1 18-19. During both phases I and II, households were evacuated from the area.

On March 8, 1996, Miller filed the present suit under the Federal Tort Claims Act (FTCA). Miller claims that the Army was negligent in burying munitions during 1917-1920, failing to mark or warn the public that there were buried munitions, investigating in 1986, and failing to remove the munitions prior to 1993. Compl. ¶ 1. Specifically, Miller alleges that these acts and omissions: (1) interfered with Miller's use and enjoyment of the land and constitute a private nuisance; (2) interfered with the public's use and enjoyment of the land and constitute a public nuisance; (3) constituted a breach of the defendant's duty of care to Miller; and (4) constituted a trespass.

Miller seeks damages totaling approximately $14,000,000 for expenses it incurred in assisting the Army during its investigation, in defending itself against homeowners' legal proceedings, and in combating the effects on its business of the uncertainty in the *1235 community caused by the discovery of the buried munitions. Compl. 30-39. Miller does not claim that the Army negligently responded to the discovery of munitions, nor does it claim that any physical harm resulted from those munitions.

On July 19, 1996, the defendant filed the present motion to dismiss or, in the alternative, for summary judgment. First, the defendant asserts that the Court lacks subject matter jurisdiction over this case because the FTCA does not waive the government's sovereign immunity for claims arising from: (a) the defendant's conduct prior to January 1, 1945, the effective date of the FTCA; (b) the conduct of the defendant's independent contractor; and (c) the defendant's conduct that involves