Loughlin v. U.S.

• Decision Date: 10 September 2003
• Docket Number: No. CIV.A.02-0152 ESH.,CIV.A.02-0152 ESH.
• Citation: 286 F.Supp.2d 1
• Parties: Thomas P. LOUGHLIN, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

286 F.Supp.2d 1

Thomas P. LOUGHLIN, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

No. CIV.A.02-0152 ESH.

United States District Court, District of Columbia.

September 10, 2003.

Patrick Michael Regan, Regan, Halperin & Long, P.L.L.C., Washington, DC, for plaintiffs.

J. Patrick, Glynn, David S. Fishback, S. Michael Scadron, Christina Humway, Jane Mahoney, Steven M. Talson, Jason Patil, Theodore Hunt, United States Department of Justice, Thomas M. Ray, Joel E. Wilson, Claes H. Lewenhaupt, U.S. Attorney's Office, Mitchell E. Zamoff, Hogan & Hartson, L.L.P., Kirby D. Behre, Paul, Hastings, Janofsky & Walker, L.L.P., J. Douglas Baldridge, Howrey Simon Arnold & White, LLP, Washington, DC, for defendants/cross-claimants/cross-defendants.

MEMORANDUM OPINION

HUVELLE, District Judge.

During the First World War, the United States Army began an intensive effort to develop and test new instruments of war, including chemical weapons. A significant portion of this research was conducted at the American University Experiment Station (AUES) in the District of Columbia's Spring Valley neighborhood. Although the Army vacated AUES soon after the war ended, it left behind a buried cache of chemical munitions and various other toxic materials associated with gas warfare. For decades the residents of Spring Valley remained unaware that these materials lay submerged beneath their homes; indeed, it was not until the mid-1980s that American University launched the first investigation into the issue. Since then, both private landowners and the federal government have conducted a barrage of tests to uncover the scope of the problem, as well as the ongoing threat that the buried munitions may pose to human health and the natural environment. These events have also triggered a series of lawsuits that include an array of claims, counterclaims, and cross-claims against litigants both private and governmental.¹ Despite this procedural complexity, however, the legal question now before the Court is straightforward: whether the claims made against the federal government under the Federal Tort Claims Act (FTCA) are barred by that statute's discretionary function exception, 28 U.S.C. § 2680(a). These claims are based on three discrete sets of events: (1) the Army's allegedly negligent disposal, storage, and handling of chemical weapons (including their burial) during the time that AUES was operational; (2) the Army's alleged failure, from World War I until the present, to issue adequate warnings about the existence and danger of buried munitions in Spring Valley; and (3) the government's allegedly negligent removal and clean-up efforts once those munitions were detected.

In a previous order issued in these cases, the Court denied the government's motions to dismiss in part, but specifically reserved judgment on the discretionary function argument. See Loughlin v. United States, 230 F.Supp.2d 26, 29 n. 3 (D.D.C.2002). The Court then gave the claimants an opportunity to conduct discovery regarding the existence of rules, regulations, or directives that might bear on whether the exception applies here.² Now that such discovery has been completed, the parties have filed supplemental memoranda addressing the issue. After considering these arguments, and for the reasons set forth below, the Court concludes that the discretionary function exception does apply in these cases, and will therefore grant the government's motions to dismiss.

BACKGROUND

The military's presence in Spring Valley began when the Board of Trustees of American University (AU) wrote a letter to President Woodrow Wilson in April 1917 offering the use of their 92-acre campus to the government in support of the ongoing war effort. After accepting the offer, the Army leased the grounds from the University and gave its Corps of Engineers ("Corps") exclusive control over the property, which became known as Camp American University. (The name was subsequently changed to Camp Leach.) Later that year, the federal government's Bureau of Mines established AUES in order to consolidate its chemical weapons research, which had theretofore been conducted at locations scattered around the country. Approximately 600 scientists and engineers came to be stationed on the campus, where they worked to develop and test numerous aspects of chemical warfare. Civilian control of the research station did not last, however, and on June 25, 1918, President Wilson formally transferred AUES from the Bureau of Mines to the War Department, specifically to its newly formed Gas Service.³

AUES became the centerpiece of the Gas Service's Research Division, which used the facility to develop, manufacture, and test a variety of chemical weapons, including mustard gas and phosgene. This research was not confined to the laboratory, however, and included extensive field testing of artillery and mortar rounds containing various noxious agents. For example, 75 millimeter shells filled with different forms of mustard gas were fired in order to determine the toxicity and range of the gas clouds produced. In an effort to simulate battlefield conditions, trenches were dug and bunkers built on the leased property, where gas weapons and incendiary devices were tested. For similar purposes, underground bomb and shell pits were constructed of concrete or wood at various locations around AUES, as well as on adjacent property owned by Charles Spaulding. See Martin K. Gordon, et al., A Brief History of the American University Research Station (Office of History Headquarters, U.S. Army Corps of Engineers, 1994) at 21-31 ("Brief History").

Soon after World War I ended in November 1918, the Army ceased operations at AUES, and began to transfer personnel and equipment to other bases, in particular to the Edgewood Arsenal in Maryland. It is now undisputed, however, that some munitions and other materials associated with chemical weapons research remained buried in the University's property, either as a result of the ordnance testing or from being deliberately buried in pits located around the campus. In an agreement dated March 11, 1920, the Army pledged to restore the buildings and grounds to the condition they were in when the government took control of the facility. This arrangement, however, appears to have been superceded by a Memorandum of Agreement dated June 21, 1920, in which the University agreed to release the government from its obligation to restore the property in exchange for the transfer of title to certain buildings erected by the Army on the campus.⁴

The next set of relevant events occurred in 1986, when AU initiated plans to build a new athletic facility on its campus. At that time, the University discovered a 1921 article that had been published in The American University Courier indicating that the Army had buried munitions on or near the campus during World War I. The University conducted interviews and an extensive literature search in an effort to obtain information substantiating or refuting this report. It also sought help from the Army, which performed a document review and dispatched its ordnance disposal unit to scour the site using metal detectors. None of these investigations conclusively revealed the presence of any buried munitions,⁵ and the athletic facility was completed as planned, although with the Corps on hand to supervise excavation and drilling. Claimants allege that around this same time, a study conducted by the Environmental Protection Agency (EPA) concluded that a parcel of property at 4825 Glenbrook Road, which adjoins the AU campus at its Glenbrook Road boundary, contained a probable burial ground for dangerous munitions and highly toxic materials. The government disputes this allegation.

In 1990, AU sold the Glenbrook Road property to Glenbrook-Brandt, which intended to begin construction of two houses there (4825 Glenbrook and 4835 Glenbrook). This construction was halted twice in May 1992 after Glenbrook-Brandt's workers were overcome by strong odors and suffered eye and lung pains requiring emergency hospital care. During excavation, workers also uncovered old laboratory equipment, possible chemical contaminants, broken jars, and a 55-gallon drum. Glenbrook-Brandt notified AU of these developments and requested that AU investigate. AU retained Environmental Management Systems (EMS), an industrial hygiene consulting firm, to look into these incidents. While the first set of tests came up negative, a second round identified the presence of the herbicide Silvex in the soil. EMS's report explained that Silvex is irritating to the eyes and senses, but is not a hazardous substance. Later that summer Glenbrook-Brandt removed four loads of the Silvex-contaminated soil from the property and proceeded with construction.

Meanwhile, in January 1993, workers excavating a separate piece of land approximately one mile from the Glenbrook Road property discovered an underground munitions bunker. The developer of that project called in the Army to investigate. Over the course of investigations that ran until 1995, the Corps unearthed a variety of live and spent munitions, ordnance-related debris, and laboratory materials, all dating from the World War I era.⁶ The Army's investigation was part of Operation Safe Removal Formerly Used Defense Site (OSR FUDS), which was launched in the Spring Valley area in order to locate caches of buried weapons associated with AUES. This project was conducted under the authority of the Defense Environmental Restoration Program (DERP), 10 U.S.C. §§ 2701-2707, and Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.

As part of these efforts, in January 1994, the Corps asked and received permission from Glenbrook-Brandt to access the Glenbrook Road properties in order to sample the soil. The Corps' letter suggested that the soil there was not known to be...