393 F.3d 155 (D.C. Cir. 2004), 03-5284, Loughlin v. United States

Docket Nº:03-5284, 03-5286.
Citation:393 F.3d 155
Party Name:Thomas P. LOUGHLIN, et al., Appellees, v. UNITED STATES of America and American University, Appellees, Glenbrook Limited Partnership, et al., Appellants.
Case Date:December 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 155

393 F.3d 155 (D.C. Cir. 2004)

Thomas P. LOUGHLIN, et al., Appellees,


UNITED STATES of America and American University, Appellees,

Glenbrook Limited Partnership, et al., Appellants.

Nos. 03-5284, 03-5286.

United States Court of Appeals, District of Columbia Circuit

December 21, 2004

Argued Oct. 18, 2004

Page 156

[Copyrighted Material Omitted]

Page 157

Appeals from the United States District Court for the District of Columbia. (No. 02cv00152) (No. 02cv00294) (No. 02cv00349).

Mitchell E. Zamoff argued the cause for appellants Glenbrook Limited Partnership, et al. With him on the briefs were Sten A. Jensen, Rene E. Browne, Matthew T. Ballenger, J. Douglas Baldridge, Patrick M. Regan, Richard S. Lewis, and Victoria S. Nugent. Jonathan E. Halperin and Thanos Basdekis entered appearances.

Mitchell E. Zamoff, Sten A. Jensen, Rene E. Browne, and Matthew T. Ballenger

Page 158

were on the brief of appellant The American University.

S. Michael Scadron, Senior Trial Counsel, U.S. Department of Justice, argued the cause for appellee United States of America. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, Jeffrey S. Bucholtz, Deputy Assistant Attorney General, J. Patrick Glynn, Director, and David S. Fishback, Assistant Director.

Richard S. Lewis and Victoria S. Nugent were on the brief for appellee Camille Saum.

Before: EDWARDS and RANDOLPH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.


EDWARDS, Circuit Judge.

HARRY T. EDWARDS, Circuit Judge.

The Federal Tort Claims Act ("FTCA") gives district courts jurisdiction over civil actions on claims against the United States (the "Government") for money damages for injury or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his or her employment, under circumstances where the Government, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred. See 28 U.S.C. §§ 1346(b), 2671-2680 (2000). This waiver of sovereign immunity does not extend to claims against the United States "based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation ... or based upon the exercise or performance or the failure to exercise or perform a discretionary function." 28 U.S.C. § 2680(a).

This case involves an FTCA action brought by appellants--American University ("AU"); Glenbrook Limited Partnership, Lawrence N. Brandt, Inc., Lawrence N. Brandt, and Robert Brant (collectively "Glenbrook-Brandt"); Thomas P. Loughlin and Kathi Loughlin, individually and on behalf of their children; Patricia Gillum; and Camille Saum--for the Government's alleged negligence in (1) burying dangerous munitions and toxic chemicals on property leased from AU in the Spring Valley area of the District of Columbia around the time of World War I, (2) failing to issue warnings about the buried munitions and chemicals and the resulting dangerous conditions, and (3) failing to investigate and remedy the hazards and contamination it caused. Gillum and Saum initially filed their FTCA and local law claims in D.C. Superior Court. Their local law actions claimed that AU was liable to the plaintiffs under District of Columbia law, because the dangerous munitions and toxic chemicals on AU's property, and the hazardous conditions resulting therefrom, caused injuries to neighboring property owners. AU removed these actions to the District Court under 28 U.S.C. § 1441(b)-(c) (2000). The Loughlins filed both their FTCA action and supplemental local law claims similar to those filed by Gillum and Saum in District Court. The District Court invoked its supplemental jurisdiction over all local law claims against AU under 28 U.S.C. § 1367(a) (2000).

AU filed a motion under Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss the local law actions for failure to state a claim. The District Court denied this motion and wrote a lengthy opinion suggesting that the Loughlins, Gillum, and Saum had stated a cause of action against AU under District of Columbia law. See Loughlin v. United States, 209 F.Supp.2d 165 (D.D.C.2002) (" Loughlin I"). The District Court turned to the FTCA matter

Page 159

after rendering a judgment on the supplemental action. The trial court first allowed the parties jurisdictional discovery limited to the existence of rules, regulations, or directives that might pertain to the first part of the discretionary function exception. The District Court then granted the Government's motion to dismiss with prejudice the FTCA actions under the discretionary function exception. See Loughlin v. United States, 286 F.Supp.2d 1, 3 (D.D.C.2003) (" Loughlin II"). Having found that it lacked subject matter jurisdiction under the FTCA, the District Court dismissed all remaining claims without prejudice. Id. at 30. The FTCA claimants appeal the dismissal of their claims, as well as the limited scope of the trial court's discovery orders. AU separately appeals the District Court's denial of its motion to dismiss the supplemental action against the University. In the alternative, AU asserts that, if the actions resting on District of Columbia law are moot, then the District Court's decision on the non-federal claims should be vacated.

We affirm the District Court's dismissal of the FTCA claims under the discretionary function exception. Although the trial court's framework for discovery was misguided, we nonetheless find that the parties had a full and fair opportunity to determine the relevant jurisdictional facts and the District Court had an adequate record upon which to rest its judgment. Finally, we vacate the District Court's decision denying AU's motion to dismiss. The District Court had no subject matter jurisdiction over the FTCA action. Therefore, the trial court had no supplemental jurisdiction under § 1367(a) to entertain non-federal claims. Accordingly, because it should not have reached the merits of the negligence claims under District of Columbia law, the District Court's views on local law are a nullity and must be vacated.


In April 1917, at the invitation of AU, the United States Army leased grounds from the University and gave its Corps of Engineers ("Corps") exclusive control over the property. Later that year, the Bureau of Mines established the American University Experiment Station ("AUES") in order to consolidate its chemical weapons research. When AUES was transferred from civilian control to the War Department's newly formed Gas Service, it became central to the Gas Service's Research Division, which used the experiment station to develop, manufacture, and test myriad chemical weapons. In order to simulate battlefield conditions, gas weapons were tested in trenches, bunkers, and pits created on the property. Loughlin II, 286 F.Supp.2d at 3-4.

Shortly after the war's end, AUES was disbanded and the Army transferred personnel and equipment to other bases. It is undisputed, however, that some munitions and chemical warfare materials remained buried in Spring Valley, either as a result of weapons testing or deliberate burial. Id. at 4. In March 1920, the Army signed an agreement pledging to restore the buildings and grounds to the condition they were in when the Government took control of the property. This agreement appears to have been superceded, however, by a subsequent 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. Id. The Army nevertheless performed some salvage and restoration work before leaving AUES; some contaminated structures were burned and others were boarded up and surrounded with fencing. Id. at 4 n. 4.

Page 160

In 1986, when AU embarked on plans to build a new athletic facility, the University discovered a 1921 article in The American University Courier, which reported that the Army had buried munitions on or near the University campus during World War I. The University notified the Army, which conducted document reviews and scoured the site with metal detectors, but did not uncover conclusive evidence of any buried munitions. Id. at 4. In 1990, American University sold property to Glenbrook-Brandt, which planned to construct two houses, at what is today 4825 and 4835 Glenbrook Road. In the course of these construction projects, workers uncovered old laboratory equipment and possible chemical contaminants. They also experienced severe physical reactions to the site that required emergency hospital care. Id. at 5. Glenbrook-Brandt informed the University, which retained an industrial hygiene consulting firm to investigate. The firm identified a herbicide, Silvex, in the soil, which it explained could irritate the senses, but was not a hazardous substance. Id.

Around this time, workers excavating land approximately one mile from the Glenbrook-Brandt property discovered an underground munitions bunker. That project's developer contacted the Army, which commenced investigations that lasted until 1995 and unearthed live and spent munitions and chemical warfare-related materials from the World War I era. These events gave rise to separate litigation against the United States by the owner/developer of that property. Id. at 5 & n. 6 (citing W.C. & A.N. Miller Cos. v. United States, 963 F.Supp. 1231 (D.D.C.1997)).

In January 1994, the Army, now immersed in a comprehensive investigation to locate buried weapons, sought and received permission from Glenbrook-Brandt to access its properties...

To continue reading