Moden v. U.S., 04-5092.

• Citation: 404 F.3d 1335
• Decision Date: 15 April 2005
• Docket Number: No. 04-5092.,04-5092.
• Parties: Donald MODEN and Barbara Moden, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

404 F.3d 1335

Donald MODEN and Barbara Moden, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 04-5092.

United States Court of Appeals, Federal Circuit.

April 15, 2005.

COPYRIGHT MATERIAL OMITTED

Ted L. McBride, Beardsley, Jensen & Von Wald, Prof. L.L.C., of Rapid City, South Dakota, argued for plaintiffs-appellants.

Katherine J. Barton, Attorney, Appellate Section, Environment and Natural

Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Thomas L. Sansonetti, Assistant Attorney General, Mark Haag, Attorney, and, William Shapiro, Attorney, General Litigation Section.

Nancie G. Marzulla, Defenders Of Property Rights, of Washington, DC, for amicus curiae Defenders Of Property Rights.

Before MICHEL, Chief Judge, LOURIE, and PROST, Circuit Judges.

PROST, Circuit Judge.

Donald and Barbara Moden appeal the dismissal of their case by the United States Court of Federal Claims for lack of subject matter jurisdiction. See Moden v. United States, 60 Fed. Cl. 275 (2004). For the reasons stated herein, we treat the dismissal as a grant of summary judgment. Because the Modens fail to raise a genuine issue of material fact with respect to at least one element of their claim, we affirm the grant of summary judgment.

BACKGROUND

A. Factual Background

The Modens own a ranch located about five miles east of Ellsworth Air Force Base (EAFB) and near the town of Box Elder, South Dakota. Since being activated in 1942, EAFB has served in various capacities as a support, training, maintenance, and testing facility for the United States Air Force. In particular, during the 1940s and 1950s routine aircraft maintenance activities at EAFB involved using trichloroethylene (TCE) to degrease airplane parts.

Since 1985, various governmental entities have commissioned studies to investigate the release of hazardous substances at EAFB as well as to develop, implement, and monitor appropriate responses to the release of those substances. In 1998 one of the commissioned studies identified that groundwater underneath the Modens' ranch was contaminated with TCE, a possible carcinogen. Researchers, including government experts, now believe that if contaminated groundwater migrated to the Modens' ranch from EAFB, the contamination may have been caused by the routine aircraft maintenance activities involving chemical solvents including TCE. While unable to identify with certainty the actual source of the contamination, government reports focus on two sites within EAFB known as Pride Hanger and Building 8115.

During the 1940s and 1950s, maintenance workers at Pride Hanger and Building 8115 used a mixture that included TCE to remove grease from airplane parts. At Pride Hanger, the TCE was stored in a large underground storage tank. After mixing the TCE with oil, maintenance workers would apply the mixture to the airplane parts before washing the mixture and grease off of the airplane parts using pressurized water. An industrial drainage system was used to collect the mixture, water, and grease for transport to an industrial water treatment plant.

The parties agree that the facilities and practices at EAFB met or exceeded state and federal requirements for storage and use of hazardous substances. They also agree that there is no evidence that TCE was intentionally or even accidentally dumped into the groundwater by anyone at EAFB. Nevertheless, they agree that TCE is currently present in the groundwater under the Modens' ranch and that projections indicate that the duration of the contamination may be as long as fifty years.

B. Procedural Background

On May 15, 2001, the Modens filed suit against the United States in the Court of Federal Claims, alleging that their property was contaminated by TCE as the result of government actions amounting to a taking under the Fifth Amendment to the United States Constitution. They specifically argued that the government actions constituted an inverse condemnation of their property.

The United States moved for judgment on the pleadings or, in the alternative, for summary judgment on the grounds that, inter alia, the Modens failed to state a claim upon which relief could be granted and that the Court of Federal Claims lacked jurisdiction because the Modens' claim sounds in tort. After the Court of Federal Claims permitted some discovery, the United States renewed its motion.

On April 9, 2004, the Court of Federal Claims granted the motion and dismissed the complaint for lack of subject matter jurisdiction. The Court of Federal Claims first noted that, while it is authorized to exercise jurisdiction over takings claims, it does not have jurisdiction over claims that sound in tort. 60 Fed. Cl. at 279. Then, it cited Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed.Cir.2003), for the two-pronged test "that must be utilized in distinguishing a taking from a tort in inverse condemnation cases." 60 Fed. Cl. at 282. "[F]irst, a property loss compensable as a taking only results when the government intends to invade a protected property interest or the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action...." Ridge Line, 346 F.3d at 1355. Second, "to constitute a taking, an invasion must appropriate a benefit to the government at the expense of the property owner, or at least preempt the owner's right to enjoy his property for an extended period of time, rather than merely inflict an injury that reduces its value." Id. at 1356.

The Court of Federal Claims then examined the evidence in this case under the identified two-pronged test. Under the first part of the first prong, the Court of Federal Claims noted that the Modens did not allege an intentional invasion by the United States. 60 Fed. Cl. at 283. Characterizing the second part of the first prong as an inquiry into the "foreseeability" of damage, the Court of Federal Claims listed "three occurrences [that] would have had to have been foreseeable or predictable by the Air Force at the time of its authorized use of the chemical solvents." Id. at 284-85. First, "during the 1940s and 1950s ... the government would have had to have known that TCE was a component of these solvents and was a contaminant." Id. at 285. Second, the Modens "would have to show that it would have been predictable or foreseeable by the government that these chemical solvents, containing TCE, would have been released into the groundwater." Id. Third, the Modens "would have to show that the government should have foreseen that the contaminant would naturally migrate toward plaintiffs' property." Id. at 285-86.

The Court of Federal Claims ultimately concluded that the Modens either did not present evidence or did not contradict evidence presented by the United States with regard to the first or second occurrence. Instead, the Modens focused on the third occurrence, which, according to the Court of Federal Claims, even if proved, alone would be insufficient for jurisdiction to be proper. Thus, because the Court of Federal Claims found that the Modens failed to satisfy Ridge Line's first prong, it found subject matter jurisdiction to be lacking.¹

The Court of Federal Claims entered a final judgment on April 14, 2004. The Modens timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

A. Jurisdiction

The Court of Federal Claims dismissed the present case for what it deemed a lack of subject matter jurisdiction. 60 Fed. Cl. at 291. In doing so, however, the Court of Federal Claims addressed the merits of the Modens' nonfrivolous inverse condemnation claim. Thus, the Court of Federal Claims indicated a possible misunderstanding of the appropriate role of a trial court in addressing three different types of motions: a motion to dismiss a complaint for lack of subject matter jurisdiction; a motion to dismiss a complaint for failure to state a claim upon which relief can be granted; and a motion for summary judgment on the merits.

We have attempted to clarify the appropriate inquiries that a court must make in response to these types of motions. See, e.g., Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687-88 (Fed.Cir.1992). The Court of Federal Claims has interpreted Spruill as suggesting that when a defendant disputes the merits of a claim in a motion to dismiss for lack of subject matter jurisdiction, jurisdiction should be assumed and the merits of the claim should be addressed. See, e.g., Janowsky v. United States, 31 Fed. Cl. 520, 521 (1994); Morris v. United States, 33 Fed. Cl. 733, 743 (1995).

In Spruill we concluded that subject matter jurisdiction exists when a petitioner asserts a nonfrivolous claim:

To the extent a successful claim against the government requires compliance with all statutory elements of the claim, failure of proof of an element of the cause of action means the petitioner is not entitled to the relief he seeks. To conclude in such a case that the petitioner loses because the forum is "without jurisdiction" is to obscure the nature of the defect. It would be more accurate to conclude that the petitioner has failed to prove the necessary elements of a cause for which relief could be granted. The forum has jurisdiction to hear the matter in the first instance — that is, subject-matter jurisdiction existed — as long as the petitioner asserted nonfrivolous claims.

978 F.2d at 687-88. Similarly, the Supreme Court has identified that "[d]ismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is `so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting ...