Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lemon v. Harvey

August 25, 2006


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


Before the Court are plaintiffs' Motion [36] for Leave to File Second Amended Complaint and defendants' Motions [26, 27, 28] to Dismiss for Lack of Jurisdiction, or in the alternative, Motions for Summary Judgment. The Court will grant plaintiffs' Motion [36], as the Court finds plaintiffs' amendments have no effect on the Court's ruling on defendants' Motions [26, 27, 28] -- which the Court will also grant. The Court finds the plaintiffs lack standing to bring this action and so will dismiss their claims for lack of subject matter jurisdiction. As defendants' motions are dispositive, the Court will deny as moot defendants' other pending matter, Motion [40] to Strike. A separate order will follow this Memorandum Opinion.


Communities slated to lose their military facilities -- and the employment opportunities found therein -- often result to legal and political fisticuffs to halt base closures.*fn1 While jobs attendant to the military are lost, see, e.g., Dalton v. Specter, 511 U.S. 462 (1994), the land the base occupied, freed from the federal government's grasp, becomes available for development by state and local governments. The shuttering of Fort Ritchie, the base in question here, has generated its fair share of discord -- among those seeking to influence the base's redevelopment. See, e.g., Role Models America, Inc. v. PenMar Dev. Corp., 394 F. Supp. 2d 121 (D.D.C. 2005) (Bates, J.); Role Models America, Inc. v. White, 193 F. Supp. 2d 76 (D.D.C. 2002) (Urbina, J.), rev'd, 317 F.3d 327 (D.C. Cir. 2003).

Plaintiffs Jim Lemon and Robin Biser reside near Fort Ritchie in the Catoctin Mountains of western Maryland. They bring this suit to, inter alia, prevent the transfer of property at Fort Ritchie between the defendants: the Secretary of the Army, PenMar Development Corporation ("PenMar"), and Corporate Offices Properties Trust ("COPT"). In doing so, plaintiffs hope to avert environmental damage and loss of valuable historic buildings that plaintiffs contend will occur if the planned development of the base land proceeds.

Fort Ritchie was selected to be shuttered in 1995. (Second Am. Compl. ¶ 8.) In 1997, Maryland created defendant PenMar to serve as the local redevelopment authority ("LRA") for the Fort. (Id. ¶ 14.) PenMar subsequently entered into an agreement with the Army, the Maryland State Historic Preservation Officer, and the Advisory Council on Historic Preservation to ensure the protection of a historic area of the Fort, known as the Camp Ritchie Historic District. (See Admin. R. 775-785.) As PenMar moved ahead with the redevelopment plans, the Army prepared an environmental impact statement analyzing various intensities of land use on the base property and the environmental effects to be expected from each. (See Admin. R. 336-685.) PenMar requested an economic development conveyance of the land from the Department of Defense, predicated on a redevelopment plan it submitted in 1997. (See Admin. R. 878-911) PenMar also entered into a memorandum of agreement with the Army, ostensibly obliging PenMar to uphold, among other things, the aforementioned historic preservation agreement. (See Admin. R. 919-997.) In 2004, PenMar entered into an agreement to sell the Fort Ritchie land to defendant COPT (with clauses designed to uphold prior historic preservation efforts), which then proposed its own development plan. (See Admin. R. 1005-1028; 1067-1114.) It is the promulgation of this plan, along with the events leading thereto, to which plaintiffs object.

In their second amended complaint, plaintiffs allege that defendants violated the Defense Base Closure and Realignment Act of 1990 ("BRAC"), Pub. L. No. 101-510, 104 Stat. 1485; the National Environmental Policy Act ("NEPA"), 42 U.S.C.A. §§ 4321-4370 (West 2003 & Supp. 2006); and the National Historic Preservation Act ("NHPA"), 16 U.S.C.A. § 470 (West 2000 & Supp. 2006). Per BRAC, plaintiffs contend that defendants have "conspired to implement an illegitimate and unlawful redevelopment plan," breaching agreements plaintiffs claim are binding on the developers and the Army (Count I). (Second Am. Compl. ¶ 25.) As a result of the deviation from those plans, plaintiffs allege that defendants will increase the environmental impact of the development beyond that contemplated in earlier impact studies, thus violating the NEPA (Count II). Lastly, plaintiffs aver that construction plans for the base interfere with, among other things, parade fields that are located within the Camp Ritchie Historic District -- allegedly in violation of the NHPA (Count III).

All three defendants have filed motions to dismiss, or in the alternative, for summary judgment. Defendants contend that plaintiffs lack standing to sue under any of the three counts listed above. Defendants further contend that this Court lacks the subject matter jurisdiction to adjudicate Count I because plaintiffs have no right of action under BRAC. Defendants also note that Count II is barred by a statute of limitations. Lastly, defendants contend that because they complied with the laws under which plaintiffs bring suit, defendants are due judgment as a matter of law. The Court finds that plaintiffs lack standing to bring this lawsuit, and consequently need not expound on the legal standard for granting summary judgment. The question of standing goes to a Court's subject matter jurisdiction. The Court therefore turns to the standard for dismissal for lack of subject matter jurisdiction.


I. Legal Standard

A. Dismissal for Lack of Subject Matter Jurisdiction

1. Generally

The sine qua non of judicial proceedings in federal court is a court's subject matter jurisdiction over the dispute. The primacy of this requirement is demonstrated by the strength of the mandate to dismiss a case that the court lacks subject matter jurisdiction to hear. A motion to dismiss for lack of subject matter jurisdiction (FED. R. CIV. P. 12(b)(1)) can be entertained at any point in the proceedings -- or even at their conclusion -- and courts are charged with dismissing a case sua sponte if it becomes apparent that they lack the subject matter jurisdiction to hear it. See FED. R. CIV. P. 12(b)(1), 12(h)(3); Arbaugh v. Y & H Corp., 126 S.Ct. 1235, 1240 (Feb. 22, 2006).

As is typical in ruling on a dispositive motion, in ruling on a 12(b)(1) motion, a court will give the plaintiff the benefit of all favorable inferences that can be drawn from the proffered facts. See Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). Allegations are construed, when possible, to favor the plaintiff. Id. Further, unlike other 12(b) motions to dismiss, in a motion to dismiss under 12(b)(1), a court may consider facts outside the pleadings in ruling on the existence of subject matter jurisdiction. Herbert v. Nat'l Acad. Of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Nonetheless, the burden is, in the first place, on ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.