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Baker v. United States

United States District Court, D. Maryland

August 9, 2017

FREDERICK BAKER, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM AND ORDER RE: MOTION TO DISMISS

          MARVIN J. GARBIS, UNITED STATES 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.

         I. BACKGROUND

         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.

         A. 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 Northwest Area Ravine Test Pit Sample Summary. The Navy contaminated the Baker Property with Diesel Range Organics (“DRO”), Oil Range Organics (“ORO”), and Gasoline Range Organics (“GRO”), in excess of Maryland State maximum contaminant levels.[2]

         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. Id.

         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.[3]

         B. Procedural Setting

         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.[4] Plaintiff filed a second 95 (“Form Two”) requesting $20, 761.86, for the costs incurred when connecting his home to the public water system because of the contamination of his potable water well. [ECF No. 1-1] at 4. The aggregate amount of the totals on the two 95s is $169, 861.86.

         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.” Id. As of July 23, 2014, the value of the Baker Property was hypothetically valued, if there were no contamination, to be $710, 000.00. The appraiser considered “the risk and stigma” attached to the property, and determined that if the property could be sold, the diminished value of the Baker Property would be $560, 900.00.

         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:

(1) Proof of ownership of the property;
(2) An itemized receipt of payment for necessary repairs;
(3) Evidence and information regarding the responsibility for the United States for ...

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