Morgan v. United States
| Decision Date | 28 September 2011 |
| Docket Number | No. 09-838 L,09-838 L |
| Parties | RONALD AND CAROLYN MORGAN, Pro Se, Plaintiffs, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Fifth Amendment Takings Claim; Timeliness, 28 U.S.C. § 2501 (2006); Tucker Act, 28 U.S.C. § 1491(a)(1) (2006); Subject Matter Jurisdiction, RCFC 12(b)(1); Motion for Judgment on the Pleadings, RCFC 12(c).
Ronald and Carolyn Morgan, Marietta, GA, pro se.
Joshua A. Doan, Washington, DC, with whom was Ignacia S. Moreno, Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice, for defendant. Cara M. Johnson, Environmental Litigation Attorney, United States Air Force, Washington, DC, of counsel.
This takings case is currently before the court on defendant's motion for judgment on the pleadings based on lack of subject matter jurisdiction, pursuant to Rules 12(b)(1) and 12(c) of the Rules of the United States Court of Federal Claims (RCFC). For the reasons set forth herein, defendant's motion for judgment on the pleadings is granted.
In this case, plaintiffs allege that defendant took an avigation easement over their property without just compensation in violation of the Takings Clause of the Fifth Amendment. More specifically, they argue that frequent low-altitude flights by military aircraft arriving at, and departing from, Dobbins Air Reserve Base (Dobbins) have resulted in a permanent and substantial interference with the use and enjoyment of their property.
Defendant responds that the claims raised in the complaint are untimely and are therefore beyond the subject matter jurisdiction of this court. In addition, defendant contends that certain of those claims must be dismissed because they sound in tort. For the reasons discussed below, the court holds that none of the claims raised by plaintiffs are within this court's subject matter jurisdiction.
Dobbins is a 143-acre military installation located approximately fifteen miles northwest of Atlanta in Cobb County, Georgia. Decl. of Clarence L. Miller (Miller Decl.) ¶ 6.2 Dobbins commenced operations in 1941 as a civil aviation facility, then known as Rickenbacker Field, and was later acquired by the United States in 1943 for the assembly of B-29 aircraft at an on-site facility now known as Plant 6.3 Id. ¶¶ 8, 13. While the host unit at Dobbins performed an operational mission in the past, the installation is now used primarily to train reservists in the United States Air Force (Air Force). Id. ¶ 14.
The primary airstrip at Dobbins has a generally east-west orientation and is designated as Runway 11/29.4 Miller Decl. ¶ 15. The western half of the airstrip is known as Runway 11, while the eastern half is known as Runway 29. Id. ¶ 17. Runway 11/29, which was constructed in 1941 and expanded in 1951, has a total length of 10,000 feet and a total width of 300 feet. Id. ¶ 15. The centerline of the airstrip has not moved since its original construction in 1941, and the dimensions of the runway have not changed since 1951. Id. ¶¶ 15-16.
In addition to Runway 11/29, there is also a secondary airstrip at Dobbins, which is designated as Runway 110/290. Id. ¶ 18. Runway 110/290 is also known as the "assault landing strip." Id. The construction of the assault landing strip was completed in 2003, and the airstrip became operational in February of that year. Id. The assault landing strip runs parallel to Runway 11/29, and is 3500 feet long and 60 feet wide. Id. Runway 110/290 is adjacent to Runway 29, see Pls.' Resp. Ex. C, and its west end is located approximately one and one-half miles east of the west end of Runway 11, Miller Decl. ¶ 18.
There are also two helicopter landing pads at Dobbins - the north helipad and the south helipad - which are both located at the western end of the airfield. Id. ¶ 19. Dobbins is also home to Plant 6 and a number of accessory buildings. See id. ¶ 13; Pls.' Resp. Ex. C.
In recent years, Dobbins has been home to at least one private contractor and a number of military tenants, which are described below.
The host unit at Dobbins is the Air Force's 94th Airlift Wing, which has been stationed at Dobbins since the 1970s and has been operating C-130s at theinstallation since the 1980s.5 Miller Decl. ¶ 9. Between 1998 and the present, there have been eight C-130s associated with the host unit at Dobbins, all of which are used to train pilots, navigators, and loadmasters. Id. ¶ 27.
The United States Navy operated Naval Air Station (NAS) Atlanta at the installation from 1959 until 2008. Miller Decl. ¶ 11. Between 2001 and 2008, both the Navy and the United States Marine Corps had F/A-18s stationed at NAS Atlanta. Id. ¶¶ 33-34. All twelve of the F/A-18s operated by the Navy had departed Dobbins by June 2004, id. ¶ 33, while all twelve of the F/A-18s operated by the Marines had left the base by June 2008, id. ¶ 34. In addition to its F/A-18s, the Navy also had stationed at Dobbins six E-2C aircraft, one UC-12B, and between two and four C-9Bs during that time period. Id. ¶ 33. In 2001, the Marines had stationed at Dobbins six AH-1N and four UH-1N helicopters, which began to leave the installation in 2008. Id. ¶ 34. By the summer of 2010, none of those helicopters remained on the base. Id.
The Georgia Army National Guard (National Guard) is also stationed at Dobbins, and has operated eight UH-60 Blackhawk helicopters, three OH-58 observation helicopters, and one C-26 Metroliner at the installation since 2002.6 Miller Decl. ¶ 36.
Lockheed Martin has been operating Plant 6 at Dobbins since the 1950s. Id. ¶ 13. During that time, Lockheed has constructed and modified various aircraft at that facility, including the C-5, the C-130J, and the F-22. Id. As discussed more fully below, the F-22s manufactured at Plant 6 are subjected to several test flightsbefore leaving the installation and are accompanied by an F-16 chase plane during those flights.
In their complaint, plaintiffs allege that supersonic jets frequently pass over their property at altitudes of less than sixty feet.7 The F-22, F-16, and F/A-18 are the only types of aircraft that have been stationed at Dobbins in the recent past that are capable of reaching supersonic speeds, and those aircraft do not, except in emergencies, travel at such speeds within the airspace controlled by the Dobbins tower. Miller Decl. ¶¶ 50-51. In fact, aircraft within that airspace are not allowed to travel faster than 250 knots, which is well below the speed of sound. Id. ¶ 51.
As noted above, the host unit at Dobbins has been operating C-130s at the base since the 1980s, and there have been eight C-130s attached to that unit since 1998. Id. ¶¶ 9, 27. The C-130 is a cargo plane. It is not a jet and is not capable of traveling at supersonic speeds. Id. ¶ 9.
In 2001, the Navy and the Marines each operated a total of twelve F/A-18s at the base, for a total of twenty-four F/A-18s permanently stationed at Dobbins. Id. ¶¶ 33-34. Between February and August of 2005, the Marine unit to which the F/A-18s were attached was deployed to Iraq, and those twelve aircraft were not present at the base during that time. Id. ¶ 34. As noted above, the last of the F/A-18s operated by the Navy and the Marines left the installation permanently in June 2004 and June 2008, respectively. Id. ¶¶ 33-34.
In addition to their F/A-18s, the Navy and Marines also operated other types of aircraft at Dobbins. From sometime before 2001 until August 2008, the Navy operated six E-2Cs there. Id. ¶ 33. The Navy also operated between two and fourC-9Bs and one UC-12B from sometime before 2001 until May 2009. Id. From sometime before 2001 until 2010, the Marines operated six AH-1N helicopters and one UH-1N helicopter at the base. Id. ¶ 34. None of those Navy or Marine aircraft are capable of achieving supersonic speeds. Id. ¶ 50.
Production of the F-22 commenced at Plant 6 in 1998 and is expected to continue through 2012. Id. ¶ 38. Each new F-22 is required to complete five "checkout" flights from Runway 11/29 before it is transferred to a permanent duty station. Id. The F-22 checkout flights are performed with an F-16 chase plane and are conducted between 9:00 a.m. and 5:00 p.m. Id. Based on the total production of F-22s between 1998 and 2012, there have been an average of sixty-five F-22 checkout flights each year. The F-22s and the associated F-16s are the only planes still present at Dobbins that are capable of reaching supersonic speeds, and, as noted above, those aircraft are not permitted to travel at such speeds within Dobbins-controlled airspace. Id. ¶¶ 50-51.
Lockheed Martin also performs repairs and maintenance at Plant 6 on transient C-5s and C-130s. Id. ¶ 37. Lockheed typically services one to two C-5s each month, while repairs on C-130s are intermittent. Id. Because Lockheed does not perform repairs or maintenance on F-22s at Plant 6, the only F-22s present at Dobbins are those in production. Id. ¶ 38.
In addition to the F-16 chase planes that follow the F-22s during test flights, four F-16s were temporarily assigned to Dobbins following the events of September 11, 2001. Miller Decl. ¶ 43. Those F-16s departed the base in October 2002. Id.
The Georgia Army National Guard currently maintains eleven helicopters (eight UH-60s and three OH-58s) and one plane (a C-26) at Dobbins. Id. ¶ 36. None of them are capable of achieving supersonic speeds. Id. ¶ 50.
In addition to the aircraft permanently stationed at Dobbins, a number of transient aircraft use Runway 11/29 and pass through the installation's airspace. Id. ¶ 40. Some of the transient aircraft on the base are small planes that use the base to refuel, while other flights included in the...
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