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"discretionary functions" of the government. Second, the defendant asserts that the statute of limitations bars suit by the plaintiff whose founders knew or should have known of its claims when they purchased the land. Third, the defendant asserts that the Complaint fails to state a claim upon which relief can be granted because under District of Columbia law, a leaseholder owes no duty to a subsequent purchaser of land under muisance, negligence, or trespass theories. The plaintiff filed an opposition to the present motion on August 12, 1996, to which the defendant replied on September 9, 1996. On September 19, 1996, the plaintiff moved to file a surreply, which the court shall accept, as it addresses issues raised in the defendant's reply.

DISCUSSION

Dismissal is appropriate when the Court lacks jurisdiction over the subject matter of a claim or when the plaintiff has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), (6). Under Rule 12(b)(6), a claim must be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In evaluating the plaintiff's complaint on a motion to dismiss, the Court must accept the factual allegations as true and draw all reasonable inferences therefrom in favor of the plaintiff. Maljack Productions, Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C.Cir.1995). At the same time, the Court must not accept inferences drawn by the plaintiff if they are unsupported by the facts, nor must the Court accept purely legal conclusions masked as factual allegations. Id.

If, on a motion to dismiss pursuant to 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Fed.R.Civ.P. 12(b). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). An issue must be both genuine and material to preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10. An issue is genuine if there is sufficient evidence to support a rational finding either way. In making this determination, the nonmovant's evidence is to be believed, and all justifiable inferences are to be drawn in [their] favor." Id. at 255, 106 S.Ct. at 2513. "Only disputes of facts that might affect the outcome of the suit... will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. at 2510.

1. THE COURT HAS SUBJECT MATTER JURISDICTION OVER THE PLAINTIFF'S CLAIMS ARISING FROM THE DEFENDANT'S FAILURE ΤΟ WARN OF THE BURIED MUNITIONS.

A. The plaintiff's claims are not barred by the FTCA's "effective date" or "independent contractor" provisions; The plaintiff's claims arising from the defendant's failure to warn of buried munitions are not barred by the discretionary function provision.

As a sovereign, the United States is immune from suit except if it has consented to be sued. United States v. Dalm, 494 U.S. *1236 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). The FTCA waives sovereign immunity for civil suits against the United States for money damages for injury or loss of property, or personal injury caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b).

The FTCA contains several exceptions to this waiver of sovereign immunity. Berkovitz v. United States, 486 U.S. 531, 535, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). If a plaintiff's claims are excepted from the FTCA's waiver of sovereign immunity, the Court lacks subject matter jurisdiction

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over those claims. See Cope v. Scott, 45 F.3d 445, 448 (D.C.Cir. 1995).

Exceptions to the waiver of sovereign immunity are established by the FTCA's effective date, independent contractor, and discretionary function provisions, each of which the defendant cites as a bar to the present suit. The Court concludes that the effective date and independent contractor provisions do not bar suit here. The discretionary function provision bars suit with respect to the defendant's burial of munitions, investigation, and failure to remove the munitions; however, it does not bar suit with respect to the defendant's failure to warn of the buried munitions.

i. The FTCA's "Effective Date" Provision Does Not Bar Claims Arising From The Defendant's Conduct Prior To January 1, 1945 Because The Plaintiff's Claims Did Not Accrue Until After That Date; The FTCA Establishes Jurisdiction On The Basis Of When A Claim Accrues, Rather Than When The Tortious Conduct Occurs.

By its effective date provision, the FTCA confers jurisdiction in district court for civil actions for money damages against the United States on

claims... accruing on and after January 1, 1945... in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). It is the defendant's position that the FTCA does not apply to claims arising out of acts or omissions that occurred before 1945, even if the injuries resulting from those acts or omissions occurred after 1945. According to the defendant, any claims arising from the Army's burial of munitions during the 1917-1920 time period are barred by the FTCA's effective date provision.

The Court begins with the presumption that Congressional intent is expressed by the plain meaning of the words chosen. Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590-91, 7 L.Ed.2d 492 (1962). In the provision at issue, Congress used the two phrases "claims ... accruing" and "act or omission occurred" in the same sentence. Notably, Congress chose to include the phrase "on and after January 1, 1945" directly after the phrase "claims ... accruing," thereby logically indicating that the words "on and after January 1, 1945" modify the phrase "claims accruing" rather than the phrase "act or omission occurred."

...

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Had Congress intended that the act or omission at issue must occur after 1945, as the defendant suggests, it would have used an altogether different statutory construction.

[1][2] The phrases "claims ... accruing" and "act or omission occurring" are distinct. By specifying that a claim accrues on a certain date by virtue of some act or omission that occurred in a certain place, Congress intended to distinguish the place of the act from that act's operative effect. It is the operative effect, or injury, which measures when a claim accrues [FN4]. Thus, under the plain meaning of the words chosen, Congress *1237 intended that the FTCA confer jurisdiction over claims for which the injury occurred after January 1, 1945, regardless of when the act or omission complained of occurred.

FN4. The question when a claim accrues has been held to be a matter of federal law for purposes to the FTCA's statute of limitations. Kossick v. United States, 330 F.2d 933 (2d Cir.1964); Quinton v. United States, 304 F.2d 234 (5th Cir.1962); Maryland v. United States, 165 F.2d 869 (4th Cir.1947). However, whether or not a claim has accrued is a matter of state law in accordance with § 1346(b). See Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). District of Columbia case law holds that when the fact of an injury can be readily determined, a claim accrues at the time the injury actually occurs. Farris v. Compton, 652 A.2d 49, 54 (D.C.App.1994). However, if the existence of an injury is not readily apparent, the case law is clear that the claim does not accrue until the plaintiff, exercising due diligence, has "discovered or reasonably should have discovered all of the essential elements of [its] possible cause of action, i.e., duty, breach, causation and damages." Id. It is generally understood that the terminology "claim accrued" refers to the point at which damages are vested or injury has occurred, and a cause of action may be maintained. Black's Law Dictionary 37, 314 (4th ed.1968). A claim "accrues" when the negligent act or omission complained of has had an impact that results or will result in injury. See In re Silver Bridge, 381 F.Supp. 931, 940 (S.D.W.Va.1974) (citing W. Prosser, Law of Torts § 30 at 143-44 (4th ed. 1971)).

Courts that have focused on the FTCA's effective date provision have rejected the government's position and have held that as long as the injury occurred subsequent to January 1, 1945, a district court has jurisdiction, even if the tortious acts or

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omissions took place prior to that date. See Carnes v. United States, 186 F.2d 648 (10th Cir.1951) (FTCA permitted suit when child who took home an explosive device from a crashed Army airplane in 1944 was injured in February 1945 when the device exploded); In re Silver Bridge Disaster Litigation, 381 F.Supp. 931 (S.D.W.Va.1974) (claim of negligence with respect to Army's building of bridge in 1928 accrued in 1967 when the bridge collapsed). The government has not cited any persuasive authority to the contrary.

[3] In accordance with the plain language of the FTCA, the plaintiff's claims will not barred by the effective date provision just because those claims arise from acts and omissions that occurred before January 1, 1945. The effective date provision establishes jurisdiction on the basis of when the claims accrued rather than when the allegedly tortious conduct occurred.

ii. The Plaintiff's Claims Arising From The Allegedly Negligent Investigation In 1993 Are Not Barred By The Independent Contractor Provision Of The FTCA Because The Plaintiff's Challenge Is To The Defendant's Conduct, Not To The Contractor's Conduct.

[4] Liability under the FTCA must be premised upon a "negligent or wrongful act or omission of any employee of the Government." 28 U.S.C. § 1346(b) (emphasis added). The FTCA defines "employee of the government" to include "officers or employees of any federal agency," and defines "federal agency" to include

the executive department, the judicial and legislative branches, the military departments, independent establishments of the United states, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.

28 U.S.C. § 2671 (emphasis added). Thus, the FTCA adopts the common-law distinction between the liability of an employer for the negligent acts of its employees and for the negligent acts of those with whom it contracts. Logue v. United States, 412 U.S. 521, 526, 93 S.Ct. 2215, 2218-19, 37 L.Ed.2d 121 (1973). In order for the government to be liable under the FTCA, it must be shown that the acts or omissions complained of were taken by an employee of the government.

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[5] The defendant asserts that, to the extent the plaintiff bases its action on the 1986 Photographic and Historical Report, it is immune from suit under the independent contractor provision. However, the defendant's invocation of the independent contractor provision is inappropriate in this case because the plaintiff's complaint does not challenge the actions of the independent contractor. Rather, the plaintiff claims that the 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." This claim is not barred by the independent contractor provision.

*1238 iii. The Discretionary Function Provision Of The FTCA Bars The Plaintiff's Claims Based On The Defendant's Allegedly Wrongful Burial of Munitions During 1917-1920, its Allegedly Negligent Investigation in 1986; And its Failure To Remove The Munitions Prior To 1993. The Discretionary Function Provision Does Not Bar Claims Based On the Defendant's Failure To Mark Or Warn That There Were Buried Munitions.

[6] The FTCA excepts from its provisions [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government whether or not the discretion involved be abused.

28 U.S.C. § 2680(a) (emphasis added). This exception to the Court's jurisdiction under the FTCA is known as the "discretionary function" exception and "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United State v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984) ("Varig Airlines "). It "was designed to prevent the 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." Cope v. Scott, 45 F.3d 445, 448 (D.C.Cir.1995) (citing

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Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764-65).

[7] The Supreme Court has defined a two-part test for deciding whether the discretionary function exception applies in a particular case. Id. at 448. Under this test, the Court must first determine whether any "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. If a specific directive exists, then the federal employee had no "choice" and no rightful option but to adhere to the directive. Id. However, if no specific directive exists, the action does involve judgment and the Court must make a second determination whether that judgment is of the kind that the FTCA exception was designed to shield from liability, that is, a decision grounded in social, economic, or political policy. Id.

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The plaintiff states that the Army was under orders to ship all equipment and supplies to Edgewood Arsenal. However, that *1239 proposition has not been supported by any documentation. The plaintiff also states that the defendant's burial of munitions violated 1913 regulations pertaining to public property accountability. According to the plaintiff's witness Richard H. Groves [FN5], a retired Army Lieutenant General, an officer in the relevant time period had only four options regarding the disposal of ordinance: (1) to retain it under his control and remain accountable; (2) to turn it in, if serviceable; (3) to expend it, if consumable, and certify that he had done so; or (4) to salvage unserviceable property and dispose of it after inspection and a survey [FN6]. Groves Dec. 10(0). In order to remove the government's conduct from the realm of discretion, a statute or regulation must be both mandatory and specific, such that "there is no element of judgment or choice" and the "employee has no rightful option but to adhere to that directive." Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. The plaintiff's reading of the 1913 regulations itself proves that the regulations permit an element of choice in disposing of property.

FN5. The defendant requests that the Declaration of the plaintiff's witness Groves be stricken or disregarded because, among other reasons, there is no basis for concluding that his Army experience qualifies him as an expert concerning World War I or Army regulations or policies. Even considering Groves' Declaration, however, neither Groves' testimony nor the other evidence of record is sufficient to establish jurisdiction over this action.

FN6. The government asserts that a "fifth" opinion was available in accordance with the 1913 regulations, that is, "when practicable," inspectors could cause the destruction of property "at or near the place of inspection." See Def's Reply at 16 & n. 16.

The plaintiff also states that a lease for the subject property may have provided a mandatory prescription. Groves Decl. ¶ 10(A-C). However, in his declaration, Groves states that no lease for the 'subject property has been found. Thus, it is uncertain whether a lease even existed. [FN7]

FN7. The plaintiff states that the contents of a possible lease for the subject property would have provided that the government must surrender the

premises in original condition. However, to support this speculation, the plaintiff relies on an unexecuted document. See Groves Ded., Att. 5. The defendant, on the other hand, points to an executed 1918 lease involving property leased to the Army, in which the government agreed that "the land, so far as practicable, shall be restored to its original condition." See Groves Ded., Att. 5. Such language is not mandatory and specific. Additionally, the government points out that some of the Army leases contained indemnification clauses protecting the United States. See Groves Ded., Att. 3.

The defendant, on the other hand, states that during the relevant time period, burial was an accepted method for the permanent disposition of munitions. The government relies on American Expeditionary Force Regulation Number 253, dated November 1917, which provided that gas shells, bombs, and grenades should be buried in the ground 3 to 3-1/2 feet deep, and should not be thrown into water. Def's Mot. Exh. 16 at 31. The government asserts that similar burial guidance was given in January 1918, see Exh. 17 at 60, and January 1920, see Exh. 18 at 27. The regulations cited by the government do not appear to have had specific application to the disposal of munitions at AUES; rather, these regulations appear to have related to combat forces and battlefield activity, permitting the burial during a gas attack to protect combat troops.

Neither party has established that the government violated or followed any mandatory and specific statute, regulation, or policy governing the burial of munitions in connection with the subject property. [FN8] Accordingly, the Court shall turn to the second determination, that is, whether the conduct at issue here is of the kind that the discretionary function exception was designed to shield.

FN8. The parties have cited a memorandum from the Adjutant General of the Army, dated December 23, 1918, concerning the discontinuance of the use of Camp Leach. In that memorandum, the Commanding Officer at Camp Leach was ordered to "dispose of all supplies, equipment and transportation now at Camp Leach in such a way as will be for the best interest of the Government, and salvage such property as is considered necessary to salvage for the best interests of the Government ..." Def's Exh. 23. These directions, so far as they may relate to the subject property, are discretionary and do not provide a mandatory and specific prescription.

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*1240 b. The burial of the munitions, the 1986 investigation, and the failure to remove the munitions prior to 1993 are types of conduct that implicate "social, economic, or political judgment" and, therefore, beyond the reach of the FTCA.

Decisions regarding the disposal of munitions by the Army are of the type that require a balancing of objectives sought to be obtained against such considerations as staffing, funding, national security, and safety. Cf. Boyle v. United Technologies Corp., 487 U.S. 500, 511, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442 (1988) ("selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function [since it] often involves ... judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness."); Varig Airlines, 467 U.S. at 820, 104 S.Ct. at 2767-68 (government agents necessarily take calculated risks in order to make policy judgments regarding safety and in the advancement of a governmental purpose). Accordingly, numerous courts have applied the discretionary function exception in the context of military activities and the Government's handling and disposal of hazardous materials. See Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (claims arising from distribution of fertilizer for export to devastated areas after World War II barred by discretionary function exception); Kirchmann v. United States, 8 F.3d 1273, 1278 (8th Cir.1993) (discretionary function exception applied to action based оп groundwater contamination during construction of missile site); Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C.Cir.) (decisions concerning the "allocation of military and law enforcement resources [are] sheltered by the [discretionary function] exception"), cert. denied, 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 227 (1992); Allen v. United States, 816 F.2d 1417 (10th Cir.1987) (Atomic Energy Commission's decision involved in carrying out programs relating to open-air atomic bomb test were within discretionary function exception), cert. denied, 484 U.S. 1004, 108 S.Ct. 694, 98 L.Ed.2d 647 (1988); Laurence v. United States, 851 F.Supp. 1445, 1450-52 (N.D.Cal. 1994) (discretionary function applied to action based upon alleged contaminated soil used in construction of housing