Memorandum and Order Re: Motion to Dismiss
MARVIN J. GARBIS, District Judge.
The Court has before it the United States' Motion to Dismiss Claims Exceeding Administratively Sought Damages for Lack of Subject Matter Jurisdiction [ECF No. 10] and the materials submitted relating thereto. The Court finds a hearing unnecessary.
This lawsuit arises out of the contamination of Frederick Baker's ("Plaintiff") real property located in Annapolis, Maryland. Plaintiff alleges that the United States Navy ("Navy") repeatedly trespassed on his property and dumped waste, based upon the incorrect assumption that it was naval property. In February 2017, Plaintiff filed suit against the United States alleging one count of trespass. Plaintiff alleges that his property is unsaleable and worthless and now seeks $730,761.86 in compensatory damages. The United States filed the instant Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction for damages in excess of the $169,861.86, which was the total amount claimed by Plaintiff administratively.
Factual Background 1
On February 6, 2003, Plaintiff purchased property located at 2009 Woodland Road in Annapolis, Maryland ("Baker Property"). The Baker Property abuts property owned by the Navy. Plaintiff's home is on the Baker Property atop a small hill, overlooking Naval Station Storage Yard 2 ("Storage Yard 2"). When Plaintiff purchased the property, he was unaware that throughout the 1940's the Navy had used Storage Yard 2 for waste and oil disposal. In 1973, the Navy removed bulk waste materials from Storage Yard 2 and covered the area with clean soil.
In the spring of 2012, Plaintiff observed stakes and flags placed on his property in the Northwest Ravine, an area adjacent to, but outside of, Navy property and Storage Yard Two. He informed the Navy personnel that this was on his property, and after he showed them a plat describing his property, the Navy suspended work. After subsequent investigation, the Navy determined that Plaintiff did in fact own the property in question.
After acknowledging that this area was Plaintiff's property, the Navy entered into a right-of-entry agreement to conduct "environmental restoration" of the area. During this restoration, the Navy removed trees from the Baker Property. Plaintiff was then able to see the solid waste dumped on his property, including large concrete metal rods and other scrap metals protruding from the soil. In 2012 and 2013, the Navy removed the waste and asbestos containing materials from the Northwest Ravine.
On January 23, 2014, Plaintiff met with a representative of the Navy who informed him that, in late 2013, soil contamination had been discovered in the Northwest Ravine. Navy personnel provided Plaintiff with a report entitled
On March 7, 2014, Plaintiff sent the Navy a letter requesting it to provide him with a connection to public water because he feared that his well was contaminated. The Navy refused to provide this connection, but agreed to test the drinking water on the Baker Property. The Navy subsequently informed him that detectable elevated levels of GRO were present in his drinking water.
On May 30, 2014, Plaintiff and his counsel wrote to the Navy and took the position that the Navy had contaminated his property, causing him to abandon his water well, rendering his property unsaleable and worthless, and totally destroying its $710,000.00 market value. [ECF No. 10-1]. This letter further stated that Plaintiff intended, pursuant to the Federal Torts Claim Act, to seek appropriate relied for the damages he has suffered as a result of the Navy's acts and omissions.
In the summer of 2014, Plaintiff entered into another right-of-entry agreement permitting the Navy to continue investigations of the area and to remove contaminated soil. A subsequent environmental report indicated that the soil on the Baker Property still had DRO levels exceeding Maryland's soil cleanup standards.
Navy real estate personnel admitted that the Navy had trespassed on the Baker Property due to its mistaken belief that the Northwest Ravine was naval property. However, the Navy has steadfastly maintained the position that is not responsible for contamination of the Baker Property.
On August 25, 2014, Plaintiff filed two administrative tort claims with the Navy and submitted two Standard Form 95s ("95") for money damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671. Plaintiff filed one 95 ("Form One") requesting $149,100.00, to account for the diminution in value of his Property caused by the Navy's contamination.
Plaintiff attached to each 95 form individual attachments, a home appraisal, and a letter to Navy counsel. The letter to Navy counsel stated that as a "direct result of the Environmental Contamination Mr. Baker has incurred approximately $170,000 in monetary damages (described in the Forms 95 which are attached). Accordingly, this letter, along with the enclosed Federal Forms 95 formally tenders these claims to the Navy under the Federal Torts Claim Act . . . for damages incurred to date." [ECF No. 15-1]. Counsel's letter noted that the claim did not include foreseeable damages, as prior to learning of the contamination Mr. Baker had planned to sell the property to fund his retirement.
Furthermore, the letter stated that the "equitable resolution of this dispute, of course, is for the United States Navy to immediately purchase Mr. Baker's property at its full value ($710,000), as supported by the Federal Yellow Book Appraisal enclosed with the Form 95."
The statement attached to Form One, noted that "based on the contamination, Mr. Baker wishes for the Navy to either (1) make an immediate payment of $149,100.00 for the diminished value of his property, or alternatively, (2) purchase the Property outright for the full, non-contaminated value." [ECF No. 1-1] at 3.
In October of 2014, the Navy requested supplemental information in support of Plaintiff's SF 95 submissions, in accordance with 28 C.F.R. 14.4 and 32 CFR 750.37. [ECF No. 10-3]. Plaintiff's response to the Navy included:
[ECF No. 13-B].
On August 31, 2016, the Navy denied Plaintiff's claims pursuant to the discretionary function exception of 28 U.S.C. § 2680.
A party may seek dismissal for lack of subject matter jurisdiction pursuant to Rule
A motion made under Rule 12(b)(1) should be granted "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law."
If the complaint is facially attacked, the Court must accept the allegations as true, but no such presumption applies to a factual attack.
Plaintiff brings this lawsuit under the FTCA, which constitutes a "limited waiver" of the United States' sovereign immunity.
The dispositive issue for this Court is whether the correspondence between the parties and the attachments to the SF 95, including the home appraisal, constitute sufficient notice that Plaintiff was making a total claim for $730,761.86 under 28 U.S.C. § 2675(a).
Before an action can be instituted under the FTCA, claimants must have exhausted their administrative remedies. 28 U.S.C. § 2675(a) provides:
The requirements of 28 U.S.C. § 2675 are met when claimant:
The sufficiency of the notice requirement under 2675(a) is "more than a question of technical niceties."
Value of the Claim
The United States does not dispute that Plaintiff provided adequate notice to the Navy of the nature of the claim. The parties dispute the second consideration for adequate notice under § 2675 — whether the Navy had sufficient notice that the Plaintiff was seeking a sum certain of $730,761.86. Plaintiff contends that by reviewing the entirety of his claim, including his 95s, the attached statements, and the appraisal, the Navy had adequate notice of his intent to claim a larger amount of $730,761.86. [ECF No. 13] at 2. The Navy contends that it was only on notice that Plaintiff was seeking $169,861.86 because the amounts listed on Plaintiff's SF 95 forms in the boxes marked "amount of claim in dollars" totaled this amount.
The typical procedure for notice under § 2675 is the completion of an SF 95. But, a claimant is not required to place the notice on an SF 95, provided that the claimant's supplied material provides sufficient information to apprise the United States that a claim is being asserted against them and a specified amount of damages.
Regarding notice via letters, in
However, other courts have held that claimants met the notice requirements of § 2675, even though the notice was "less than ideal."
Applying the above principles to the instant action leads the Court to conclude that the communications from Plaintiff to the Navy satisfied § 2675 with regard to the claim for the full uncontaminated value of the Baker Property. Plaintiff was conscientious in pursuing his claim. Plaintiff's notice included:
[ECF No. 15-1].
Unlike the plaintiff in
The situation presented by Plaintiff is analogous to that in
The United States alleges that Plaintiff's suggested "equitable" resolution of his claim, requesting the Navy to purchase his home for the untainted value, was improper because "specific performance is not permitted under the FTCA." [ECF No. 15] at 4. At most, Plaintiff's use of the word "equitable" could be regarded as Surplusage; no "statutory or administrative purpose of investigation or pre-suit settlement was disserved by the inclusion of such surplus verbiage."
Plaintiff did not "withhold vital information and hinder settlement of a claim in hopes of obtaining a disposition in court."
The FTCA is "intended to provide a framework conducive to the administrative settlement of claims, not to provide a basis for a regulatory checklist which, when not fully observed, permits the termination of claims regardless of their merits."
For the foregoing reasons: