Muth v. U.S.

• Decision Date: 06 August 1993
• Docket Number: No. 92-2414,92-2414
• Citation: 1 F.3d 246
• Parties: D.P. MUTH; J.P. Muth, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 246

1 F.3d 246

D.P. MUTH; J.P. Muth, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 92-2414.

United States Court of Appeals, Fourth Circuit.

Argued March 31, 1993.

Decided August 6, 1993.

Gary Edward Pullin, Cleek, Pullin & Bibb, Charleston, WV, argued (Travis S. Haley, on brief), for plaintiffs-appellants.

Paul Lee Yanowitch, Civil Div., U.S. Dept. of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., Michael W. Carey, U.S. Atty., Donald L. Stennett, Asst. U.S. Atty., J. Patrick Glynn, Director, Torts Branch, Joann J. Bordeaux, Deputy Director, Torts Branch, Christina M. Humway, Civil Div., U.S. Dept. of Justice, on brief), for defendant-appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

HILTON, District Judge:

Appellants D.P. Muth and J.P. Muth bring this appeal from an order of the district court granting summary judgment to appellee United States, on the grounds that the statute of limitations for this action, pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. Sec. 2401(b), has expired. 804 F.Supp. 838. Appellants also appeal the district court's dismissal of J.P. Muth according to Federal Rule of Civil Procedure 12(h)(3), for failure to fulfill a jurisdictional prerequisite. We affirm.

Appellants D.P. Muth and J.P. Muth own approximately 20 acres of land near the center of what was an 8000 acre complex known as the West Virginia Ordnance Works (WVOW). The WVOW produced trinitrotoluene (TNT) from 1942 until 1945. Following efforts to clean up any areas contaminated by TNT by-products, parcels of the WVOW were sold to private individuals. D.P. Muth obtained 20 acres of property through four separate conveyances from the United States over the course of four decades. ¹ Each conveyance was originally to Mason Furniture Company (MFC), a business operated by D.P. Muth from 1948 until 1976. In 1988, MFC deeded all four parcels, totalling the twenty acres, to D.P. and J.P. Muth.

By May of 1981, certain areas of the former WVOW were found to be contaminated with by-products of the TNT manufacturing process. After an investigation, the Environmental Protection Agency (EPA) listed the WVOW on its National Priorities List. ² The USATHMA conducted a remedial investigation of the site from 1984 until 1986, and in 1986 published and disseminated the Remedial Investigation Final Report (RIFR). The RIFR showed no nitroaromatic contamination of the Muths' water wells, but did document contamination in areas within one quarter mile of their property. ³

During 1989 and 1990, a supplemental investigation of the WVOW was conducted which included taking over 22 soil and water samples ⁴ from appellants' property. Again, the USATHMA concluded in its 1991 Supplemental Investigation Final Report (SIFR) that neither the soil nor water samples from appellants' property showed signs of nitroaromatic contamination.

Beginning in September 1988, and continuing through August 1992, appellant D.P. Muth corresponded with the Army, the EPA and various elected representatives on matters relating to contamination discovered at the WVOW site. In at least three letters written to the government before July of 1989--more than two years before the administrative claim was filed--the appellant explicitly indicated that he knew the former use of his property, that contaminants had been discovered at property adjacent to and surrounding his property, and that, as a result, his property had been rendered worthless.

In his first correspondence with the government, dated September 19, 1988, D.P. Muth wrote to the Army and the EPA, requesting that the Army check his property for contamination. Muth specifically noted in the letter that his property was located near or adjacent to sites where contaminants were detected. He advised the government that he knew that a facility used in the TNT production process, the sellite plant, had been located on his property. Muth further stated that he was aware that the Army had sampled the water supply wells on his property, and had installed numerous test wells on the WVOW site. He in fact noted, "the [Army contractor] ... used my property as their base of operations." Finally, Muth admitted in the letter that he knew that the value of his property had been affected by the discovery of contamination: "This past week I offered my property for the new industrial park and I was told by the management of the present industrial park that property in the old TNT plant site was not desirable for any industry...."

In early November 1988, both the EPA and the Army responded to D.P. Muth's inquiries. Both agencies advised the appellant of the pertinent results of the aforementioned remedial investigation, indicating that no explosives-related contaminants had been detected on his property, and explaining in detail the basis for their conclusion that there was no potential for future contamination of Mr. Muth's property from nearby sites at which contaminants had been detected. The Army reminded Mr. Muth that the results of samples drawn from the wells on his property had been supplied to him by the State of West Virginia in July of 1985.

On December 5, 1988, Mr. Muth again wrote to the Army requesting that it provide a letter stating that the property was not a "hazardous situation." Mr. Muth stated that, "I have made a direct offer to the Mason County Development Authority ... to consider my property for the future industrial site. They immediately advised me that they consider any property of the old West Virginia Ordnance Works as undesirable for anything." (Emphasis added.) Mr. Muth also reported that he had offered to sell or lease his property, but "the real estate people informed me it will be difficult to dispose of this property because of contamination found on the former West Virginia Ordnance site." On January 9, 1989, Mr. Muth wrote to Senator Byrd regarding the Army's purchase of the Mason County Industrial Park, which was located adjacent to his property. Mr. Muth acknowledged that he was aware that the Army had purchased the Industrial Park because it was "hazardous and dangerous." Mr. Muth further informed Senator Byrd that, "I recently offered my property to Mason County Industrial Board for a future Industrial Park. Several members of the board have informed me that any property of the former West Virginia Ordnance Works is undesirable and unsafe for anything."

On the same date, January 9, 1989, appellant wrote to USATHMA requesting copies of the analysis of soil and groundwater samples taken from his property. On February 28, 1989, the Army responded, and enclosed copies of three reports summarizing the information known about the nature and extent of the contamination at the WVOW. Among the reports provided was the 1986 RIFR which contained information about the use of appellant's property and surrounding land during World War II, and the analysis of samples taken from Mr. Muth's wells.

Mr. Muth continued to carry on a considerable volume of correspondence with the Army and his elected representatives after July of 1989. His correspondence during this period reveals a steady effort to convince the Army to purchase his land, which he asserted, consistent with earlier statements, was worthless.

In spite of the aforementioned correspondence, appellant D.P. Muth did not file his administrative complaint with the Army until July 19, 1991. Appellant J.P. Muth did not file an administrative complaint at all. D.P. Muth's claim was denied on September 25, 1991, and appellants filed the district court action on March 5, 1992. The complaint alleged that as a result of the negligent contamination of the WVOW in the 1940's, appellants' property diminished in value, effectively rendering it economically worthless.

The United States sought summary judgment in the district court action on the grounds that the FTCA's two-year statute of limitations for this action, 28 U.S.C. Sec. 2401(b) (1988), had expired. The lower court found that a claim accrues under the FTCA "when the plaintiff knows, or in the exercise of due diligence, should have known both the existence and the cause of his injury." Gould v. United States Dept. of Health and Human Servs., 905 F.2d 738, 742 (4th Cir.1990) (en banc), cert. denied, 498 U.S. 1025, 111 S.Ct. 673, 112 L.Ed.2d 666 (1991); see also United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Mr. Muth argued that the cause of action was timely because he acted with due diligence and/or the principle of equitable tolling extended the time in which to file the claim. Nevertheless, the district court stated that the administrative complaint was filed with the Army in July 19, 1991, and thus if plaintiff's claim accrued prior to July 19, 1989, his action was barred by the statute of limitations, Sec. 2401(b).

I.

First, we agree with the district court's decision to dismiss appellant J.P. Muth from this case for failure to follow the jurisdictional prerequisite for this FTCA action, namely, filing an administrative claim with the appropriate federal agency. See 28 U.S.C. Sec. 2675(a) (1988). The district court found, and this court agrees, that if there are multiple claimants in the matter, each claimant must "individually satisfy the jurisdictional prerequisite of filing a proper claim, unless another is legally entitled to assert such a claim on their behalf." Frantz v. United States, 791 F.Supp. 445, 447 (D.Del.1992). Thus appellant J.P. Muth was properly dismissed from this case.

II.

Second, this court notes that the FTCA is a limited waiver of sovereign immunity. See 28 U.S.C. Secs. 2671-2680; Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Among the limitations Congress placed on the consent to suit is the requirement that the plaintiff...