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LOUGHLIN v. U.S.

September 10, 2003

THOMAS P. LOUGHLIN, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS; PATRICIA GILLUM, ET AL., PLAINTIFFS, V. AMERICAN UNIVERSITY, ET AL., DEFENDANTS; CAMILLE SAUM, PLAINTIFF, V. AMERICAN UNIVERSITY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Ellen S. Huvelle, District Judge

MEMORANDUM OPINION

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 Page 2 governmental.*fn1 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.*fn2 Now that such discovery has been completed, the parties have filed supplemental memoranda addressing the issue. After Page 3 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.*fn3

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 Page 4 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.*fn4 Page 5

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,*fn5 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, Page 6 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.*fn6 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 Page 7 Corps' letter suggested that the soil there was not known to be hazardous and that sampling was being done solely for purposes of investigation and reassurance. The samples were collected on March 9, 1994. Additional soil and groundwater samples from a number of "points of interest" throughout the area were also gathered. In June 1995, the Defense Department issued its final Record of Decision, which concluded that no further action was necessary with respect to Operation Safe Removal in Spring Valley. This decision concluded OSR FUDS. During these operations, the Army removed 141 pieces of ordnance from the area, 43 of which were suspected of being chemical weapons. See General Accounting Office, Report to the Subcommittee on the District of Columbia Committee on Government Reform, House of Representatives (June 2002) at 3. (Claimants' Supp. Mem., Ex. 22 ("GAO Report").)

Meanwhile, in February 1994, plaintiffs Thomas and Kathi Loughlin tendered a purchase offer to buy the property at 4825 Glenbrook. After executing the sales contract, Glenbrook-Brandt informed the Loughlins of what had been discovered on the property during construction. As a result of these disclosures, the Loughlins hired an independent testing organization, Engineering Consulting Services (ECS), to sample the soil and conduct an evaluation of potential environmental hazards on the 4825 property. ECS conducted its independent investigation of the 4825 Glenbrook property on March 11, 1994. The firm analyzed four soil samples for eight metals, including arsenic, and numerous pesticides, herbicides, and volatile and semi-volatile substances. Its report concluded that no hazardous compounds were found and that the lot at 4825 Glenbrook Road had not been impacted by contamination from hazardous materials.

On March 21, 1994, the Loughlins contracted to purchase 4825 Glenbrook. Prior to closing, the Loughlins and Glenbrook-Brandt entered into an agreement whereby Glenbrook-Brandt indemnified the Loughlins in the event that hazardous materials were found. This 7 Page 8 Indemnification Agreement described the discoveries to date and the testing that had already been done on the property. Plaintiffs have explained that they expected that the government would conduct further soil sampling, but that the results would not be known prior to settlement.

Around this same time, the EPA conducted its own soil sampling at the 4825 property. EPA collected seven samples on March 11, 1994, one of which showed elevated levels of arsenic. Both the Loughlins and Glenbrook-Brandt have denied knowledge of this result, at least until it was disclosed to them by the Corps in early February 1999. Indeed, in January 1995, the Corps issued a letter to the Loughlins and their neighbors indicating that the analysis of soil samples taken from their neighborhood had not detected the presence of chemical agents or explosives and that no hazard to human health or to the environment existed as a result of the Army's activities in Spring Valley.

However, in June 1996, workers planting a tree on the grounds of the AU President's house at 4835 Glenbrook, next door to the Loughlins' residence, were overcome by odors and fumes that burned their eyes. The workers unearthed laboratory glassware and broken bottles filled with chemicals. To investigate this incident, AU called in Apex Environmental, Inc., which conducted soil samples that confirmed the existence of a contaminated area approximately 12 feet in diameter and up to two feet deep. The most worrisome development was the presence of arsenic in the soil.*fn7 An investigation by the District of Columbia triggered by these events also Page 9 revealed elevated concentrations of arsenic and other toxic substances, including hydrochloric acid.

Next, in February 1998, the Corps conducted a geophysical survey of the Korean Ambassador's residence at 4801 Glenbrook Road, which also abuts the 4825 property, and found two potential disposal pits that required further investigation. A similar geophysical survey was not done at 4825 Glenbrook. However, in April and June 1998, the Army sent letters to Spring Valley residents informing them that the Corps, in coordination with the EPA and the District of Columbia government, would be looking into whether additional materials or contaminants associated with chemical warfare existed at the 4801 Glenbrook site. After that investigation began in February 1999, a 75 mm projectile was discovered buried only six inches deep in the backyard of the Ambassador's residence.

In December 1998, the Corps again contacted the Loughlins to express an interest in doing further investigation of their property "to confirm the absence of buried munitions, remnants thereof, and associated material." (United States' Stat. of Material Facts Not in Dispute ¶ 70.) Later that month, Corps representatives met with the Loughlins at their home to obtain permission to conduct further testing and to answer their questions. The Loughlins were temporarily relocated (from March to November 1999) to allow the Corps to conduct further soil sampling at 4825 Glenbrook, which it did on June 9, 1999. A total of 22 soil samples were gathered. All but four of the samples contained arsenic above the EPA Region III Risk-Based Concentration value of 0.43 mg/kg, the highest reading being 50.4 mg/kg. The Corps' final evaluation and analysis for the properties at 4801 and 4825 Glenbrook Road, which were based on the June 1999 samples, concluded that there was an "unacceptable hazard" from arsenic on Page 10 the property. As a result, the Loughlins were again forced to leave their home, this time permanently.

Even before they left, the Loughlins had invoked the terms of their Indemnification Agreement with Glenbrook-Brandt. In a February 10, 1999 letter that referenced the apparent presence of chemical weapons and the corresponding government investigations, the Loughlins provided notice that they were considering invoking the buy-back provision of that agreement. This they did formally on March 27, 2000, requesting that Glenbrook-Brandt repurchase the property from them based on the now-confirmed presence of high levels of arsenic in the soil, as well as the discovery of more than 23 ordnance-related items from the disposal pit on the Korean Ambassador's property. Indeed, since 1996, further investigation by the Army has uncovered 667 pieces of ordnance in Spring Valley, 25 of which are chemical munitions, as well as 101 bottles of chemicals. See GAO Report, at 3.

As noted, these events have spawned a series of lawsuits, including claims brought against AU and the federal government by the Loughlins (Civil Action No. 02-152), by their nanny Patricia Gillum (Gillum v. The American University, Civil Action No. 02-294), and by another property owner from nearby Sedgwick Road (Saum v. The American University, et al., Civil Action No. 02-349). The Court has previously denied AU's motions to dismiss the plaintiffs' claims in these cases, see Loughlin v. United States, 209 F. Supp.2d 165 (D.D.C. 2002), and has also denied the government's motions to dismiss except insofar as they were based upon the discretionary function exception, Loughlin, 230 F. Supp.2d at 29 & n. 3.*fn8 On Page 11 December 19, 2002, the Court granted claimants' request for discovery regarding the existence of mandatory directives relevant to the discretionary function question, and requested further briefing on the application of that exception to the facts of these cases. That discovery having been completed and the parties' supplemental motions having been filed, the Court can now turn to the merits of defendant's argument.

ANALYSIS

I. Introduction to the Discretionary Function Exception

The question before the Court is whether the various negligence claims that have been brought against the federal government are barred by the discretionary function exception. While the FTCA generally authorizes a broad waiver of the government's sovereign immunity for claims sounding in tort, the statute exempts from this waiver "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). It is entirely irrelevant to this issue whether the government was negligent, or otherwise failed to protect the public from harm. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1540 (10th Cir. 1992) ("Harsh as it may be, whether the Army substantially endangered Plaintiffs' health and welfare is irrelevant to the discretionary function determination."); Allen v. United States, 816 F.2d 1417, 1421-22 (10th Cir. 1987). Rather, the only issue is whether in making the decisions that resulted in these lawsuits, the government was performing a discretionary function, and that determination does not hinge upon whether those decisions were wise and commendable, or, as the residents of Spring Valley now understandably Page 12 contend, unwise and deplorable.*fn9 Instead, deciding whether § 2680(a) applies involves a two-step legal analysis, which must be applied separately for each action or omission upon which the claims against the government are based. See Hughes v. United States, 116 F. Supp.2d 1145, 1150 (N.D. Cal. 2000).

First, the Court must consider whether the challenged action is actually a "matter of choice for the acting employee." Berkovitz v. United States, 486 U.S. 531, 536 (1988). To this end, Prong One of the inquiry asks whether a federal statute, regulation, or policy "specifically prescribes a course of action" for the federal employee or agency to follow, id.; if so, the actor has no lawful choice but to follow the directive, and as such, no discretionary judgment is implicated by his ultimate obedience or disobedience. See United States v. Gaubert, 499 U.S. 315, 324 (1991) ("If the employee violates the mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy."). Not all regulations satisfy this standard; indeed, in order to preclude the government from availing itself of the discretionary function exception, a directive must "be mandatory and it must clearly and specifically define what the employees are supposed to do." C.R.S. by D.B.S. v. United States, 11 F.3d 791, 799 (8th Cir. 1993). A general directive that leaves implementation decisions in the hands of federal officials is not sufficient; instead, only those "regulations that Page 13 give no options to a government agency take away the exercise of discretion." Gotha v. United States, 115 F.3d 176, 181 (3d Cir. 1997); see also Kelly v. United States 241 F.3d 755, 761 (9th Cir. 2001) (broad mandates that do not specify a particular course of conduct do not remove discretion); C.R.S., 11 F.3d at 800-01 (no liability where those charged with implementing a mandatory requirement were given wide latitude regarding its execution).

Next, assuming the absence of a mandatory directive, and therefore the presence of some degree of judgment, the second prong requires the Court to determine whether the choice made is of the sort that the discretionary function exception was designed to shield. The Supreme Court has observed that in enacting the exception, "Congress wished to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. Varig Airlines, 467 U.S. 797, 814 (1984). As such, the exception does not protect all governmental actions and decisions that include an element of choice. Instead, it shields only those that are "susceptible to policy analysis," in other words, those "based on considerations of public policy" or "grounded in regulatory policy." Gaubert, 499 U.S. at 323-25 & n. 7; Berkovitz, 486 U.S. at 537; see also Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995) ("The mere association of a decision with regulatory concerns is not enough.").

Significantly, however, the Prong Two inquiry is not a subjective one. What matters is not what the decisionmaker was actually thinking (that is, whether matters of policy were actually considered), but rather whether the "nature" of the decision is one that implicates a policy judgment. See Macharia, 334 F.3d at 67; cf. Shansky v. United States, 164 F.3d 688, 692 (1st Cir. 1999) ("The critical question is whether the acts or omissions that form the basis of the suit are susceptible to a Page 14 policy-driven analysis, not whether they were the end product of a 13 policy-driven analysis."). It is therefore not necessary for the government to offer documentary or testimonial evidence that in making the challenged decisions, its employees specifically considered the kinds of policy issues that it now claims shield those decisions from liability under the FTCA.

II. Prong One: Mandatory Directives

Over the past six months the claimants have conducted extensive discovery concerning the existence of mandatory directives relevant to the application of Prong One. The Court must now consider whether the materials they have obtained in fact reveal that the government violated any specific legal directives with respect to the claims at issue here. As described above, these events fall into three general categories: (1) the allegedly negligent handling and disposal of munitions during the World War I era; (2) the alleged failure to give adequate warnings to the public that chemical weapons were buried in the area; and (3) the allegedly negligent investigation and clean-up of the burial sites once the presence of munitions and munitions-related materials were suspected. For purposes of the present inquiry, the Court will divide its analysis between those actions and omissions that took place during the World War I era and those that took place after 1986, when claimants first began to suspect that toxic munitions were buried beneath their land.

A. Actions and Omissions During the World War I Era

The claimants first argue that military personnel at AUES violated specific Army directives both by burying a large cache of chemical munitions and by failing to post adequate warnings about the burials that had occurred. In support of these assertions, claimants point to a set of manuals and bulletins issued by the Chemical Warfare Service (CWS), the Army unit that Page 15 ultimately became responsible for chemical warfare during the World War I.*fn10 Most significant is the Gas Warfare Bulletin issued by the Director of CWS and dated October 1, 1918. (FTCA Claimant's Supp. Mem, Ex. 3 ("Bulletin").) The Bulletin is described on its cover page as "A Summary of Information for Gas Officers" and includes a list of guidelines regarding the care, storage, and destruction of chemical ...


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