Gadsden Industrial Park LLC v. United States of America, The et al

Filing 36

MEMORANDUM OPINION. Signed by Judge Robert B Propst on 6/26/2014. (AVC)

FILED
2014 Jun-26 AM 10:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
GADSDEN INDUSTRIAL PARK,
LLC,

)
)
)
Plaintiff,
)
)
v.
)
)
THE UNITED STATES OF AMERICA, )
et al.,
)
)
Defendants.
)

NO. 4:14-cv-00039-RBP

MEMORANDUM OPINION
This cause comes on to be heard on defendant the United States of America’s Motion to
Dismiss, filed on April 14, 2014, and defendants CMC, Inc. (“CMC”) and Harsco Corporation’s
(“Harsco”) Motion to Dismiss, or in the Alternative, to Stay, filed on May 2, 2014. (Docs. 20
and 25). For the reasons stated below, the court finds that the United States’ motion is due to be
GRANTED and CMC and Harsco’s motion is due to be DENIED.
I. Background
On January 8, 2014, plaintiff Gadsden Industrial Park, LLC (“GIP”) filed tortious
conversion and negligence claims against the United States under the Federal Torts Claim Act
(“FTCA”) and against CMC and Harsco. (Doc. 1). Prior to this filing, the Environmental
Protection Agency (the “EPA”), under the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), designated the Gulf States Steel Site as a
Superfund site due to on-site contamination and “undertook to remediate the Site.” (Id. at ¶¶ 1213). To this end, the EPA contracted with CMC to act as its site manager, and CMC contracted
with Harsco to work at the Superfund site. (Id. at ¶ 14). During the remediation of the site, the

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defendants removed, sold, and/or rendered unusable several lines of installed railroad track
owned by GIP. (Id. at ¶¶ 10, 17, 19, 21). GIP now seeks compensation for the lost railroad
tracks in this court, (doc. 1), and in the Court of Federal Claims (the “CFC”), (doc. 25-1).
II. Legal Standard
A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss a complaint
for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). These attacks on subject matter
jurisdiction come in two separate forms – a “facial” challenge or a “factual” challenge. The
Eleventh Circuit summarized,
“[f]acial attacks” on the complaint “require[ ] the court merely to look and see if
[the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and
the allegations in his complaint are taken as true for the purposes of the motion.”
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied,
449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980) (citing Mortensen v. First
Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). “Factual attacks,” on
the other hand, challenge “the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such as testimony
and affidavits, are considered.” Id.
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). When the attack is factual, “no
presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.” Id. at 1529 (quoting Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)).
B. Rule 12(b)(6)
A defendant may move to dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief may be granted.
“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint ‘are to be
accepted as true and the court limits its consideration to the pleadings and exhibits attached
thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW,
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Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). All “reasonable inferences” are
drawn in favor of the plaintiff. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.
2002). “[U]nsupported conclusions of law or of mixed fact and law have long been recognized
not to prevent a Rule 12(b)(6) dismissal.” Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003)
(quoting Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)).
To survive a 12(b)(6) motion to dismiss for failure to state a claim, a complaint only
requires “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007).1 The Supreme Court explained in Twombly that a
complaint “does not need detailed factual allegations,” but that the allegations “must be enough
to raise a right to relief above the speculative level.” Id. at 555. Furthermore, “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.” Id. at 556 (quotation marks
omitted). The Supreme Court clarified the Twombly standard in Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009): “[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” The Eleventh Circuit has explained that the Twombly/Iqbal rule “‘does not impose a
probability requirement at the pleading stage,’ but instead ‘simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of the necessary element.’” Watts v.
Fla. Int’l. Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).

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The Supreme Court in Bell Atl. Corp. v. Twombly abrogated the oft-cited standard that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief” set forth in Conley v. Gibson. See Bell Atl. Corp., 127 S. Ct.
at 1968 (quoting Conley, 355 U.S. 41, 45-46 (1957)). The Supreme Court stated that the “no set of facts” standard
“is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell
Atl. Corp., 127 S. Ct. at 1969.
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However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1937.
III. Discussion
A. The United States’ Motion to Dismiss
In its motion, the United States has mounted a factual challenge to this court’s
jurisdiction and argues that the court lacks jurisdiction because GIP has failed to meet the
requirements of 28 U.S.C. § 2675(a). (Doc. 21, p. 5). “A district court only has jurisdiction over
an FTCA action if the plaintiff has met section 2675(a)'s requirements.” Burchfield v. United
States, 168 F.3d 1252, 1254-55 (11th Cir. 1999) (citing Bush v. United States, 703 F.2d 491, 494
(11th Cir. 1983)). Section 2675(a) provides, in pertinent part:
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, unless the claimant shall
have first presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by certified or
registered mail.
28 U.S.C. § 2675(a). The United States contends in its motion and attached affidavit that GIP
has not filed an administrative claim. See Burchfield, 168 F.3d at 1255 (11th Cir. 1999) (§
2675(a) requires the plaintiff to “(1) give [ ] the [appropriate] agency written notice of his or her
claim sufficient to enable the agency to investigate and (2) place[ ] a value on his or her claim.”)
(quotations and citation omitted). GIP responds that its July 19, 2013 letter, see (doc. 24-1, p. 1),
is sufficient to “present[] the claim” under § 2675(a).
Assuming, without deciding, that the letter was sufficient to present the claim,2 the court
finds that the claim was not “denied by the agency in writing and sent by certified or registered

2

The court notes that (1) “the amount of information required is ‘minimal’” and (2) the July letter “place[d] a value
on [the] claim.” Burchfield, 168 F.3d at 1255 (citations omitted).
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mail.” 28 U.S.C. § 2675(a). As GIP admits, “the EPA’s denial of the claim was not ‘sent by
certified or registered mail.’” (Doc. 24, p. 11) (quoting 28 U.S.C. 2675(a)). GIP, however,
contends that this court should be “unwilling to permit the United States to stand on
technicalities”, see Forest v. United States, 539 F. Supp. 171, 174 (D. Mont. 1982), or to
“sandbag [GIP],” see McGowan v. Williams, 623 F.2d 1239, 1243 (7th Cir. 1980). (Doc. 24, p.
12). But, as the Supreme Court of the United States stated,
[t]he [§ 2675(a)] command that an “action shall not be instituted ... unless the
claimant shall have first presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency in writing and sent by
certified or registered mail” is unambiguous. We are not free to rewrite the
statutory text.
McNeil v. United States, 508 U.S. 106, 111 (1993) (emphasis added); see also Phillips v. United
States, 260 F.3d 1316, 1318 (11th Cir. 2001) (“It is well established that the FTCA is a specific
waiver of the sovereign immunity of the United States and must be strictly construed.”). §
2675(a) plainly and unambiguously requires that the agency’s denial be (1) “in writing” and (2)
“sent by certified or registered mail.” Like the Supreme Court, this court is not free to rewrite or
disregard the statutory requirements.
GIP also argues that because § 2675(a) would deem the claim denied on January 19,
2014 and this suit was filed on January 8, 2014, the court should not dismiss the claims against
the United States. § 2675(a) provides that “[t]he failure of an agency to make final disposition
of a claim within six months after it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for purposes of this section” (Emphasis added).
Thus, GIP could only “deem[]” the claim denied after January 19, 2014; almost six months is not
six months. This court’s subject matter jurisdiction is not a matter of horseshoes and hand
grenades. See Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008)
(stating that the court would lack jurisdiction over a suit initiated before written denial and
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within six months of the filing of the administrative claim). Consequently, GIP has not met the
requirements of § 2675(a), and this court lacks subject matter jurisdiction over GIP’s claims
against the United States.
B. CMC and Harsco’s Motion to Dismiss/Stay
In their facial challenge, CMC and Harsco contend that they are entitled to immunity for
GIP’s claims against them under “the doctrine of derivative or absolute immunity,” the
government contractor defense, and § 2675(a). (Doc. 25, ¶¶ 5-7). Alternatively, they argue that
the court should stay this proceeding in favor of GIP’s action against the United States in the
CFC. (Id. at ¶ 8).
1. Absolute Immunity: Westfall and the Government Contractor Defense
CMC and Harsco argue that the test for absolute immunity articulated in Westfall v.
Erwin, 484 U.S. 292 (1988) entitles them to immunity from state tort law. Similarly, they
contend that the “government contractor defense” set out in Boyle v. United Technologies Corp.,
487 U.S. 500 (1988) grants them immunity. These Supreme Court decisions create two similar,
and often over-lapping, tests for granting immunity to those employed and/or contracting with
the United States government. The court will first outline the legal framework and subsequent
history of these decisions and then apply them to the facts of the current case.
As a threshold matter, although CMC and Harsco have framed their motion to dismiss as
an attack on the court’s subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the
question of absolute immunity for nongovernmental actors is not a jurisdictional issue. See
Westfall, 484 U.S. at 299 (“A material issue of fact thus exists as to whether petitioners exercised
sufficient discretion in connection with the alleged tort to warrant the shield of absolute
immunity.”); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 77 (2d Cir. 1998) (affirming

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district court’s dismissal for absolute immunity under Rule 12(b)(6)); Boyle, 487 U.S. 500, 514
(1988) (“[W]hether the facts establish the conditions for the [government contractor] defense is a
question for the jury.”); Lambert v. Mail Handlers Benefit Plan, 886 F. Supp. 830, 837 n.3 (M.D.
Ala. 1995) (“[T]he [Boyle] court was examining a federal common law preemption defense
asserted by the defendant rather than the presence of federal question jurisdiction.”). Thus, the
court will analyze the immunity issue under Fed. R. Civ. P. 12(b)(6).
a. Westfall Immunity
In Westfall, the Supreme Court held that federal officials were not entitled to “absolute
immunity … from state-law tort liability unless the challenged conduct is within the outer
perimeter of [the] official's duties and is discretionary in nature.” 484 U.S. at 300. In requiring
that the act be discretionary, the Court reasoned as follows:
The central purpose of official immunity, promoting effective government, would
not be furthered by shielding an official from state-law tort liability without
regard to whether the alleged tortious conduct is discretionary in nature. … It is
only when officials exercise decisionmaking discretion that potential liability may
shackle “the fearless, vigorous, and effective administration of policies of
government.”
Id. at 296-297 (quoting Barr v. Matteo, 360 U.S. 564, 571 (1959)). The Court rejected a
“wooden interpretation” of discretionary, noting that some conduct “will often involve the
exercise of a modicum of choice and yet be largely unaffected by the prospect of tort liability.”
Id. “Courts must not lose sight of the purposes of the official immunity.” Id. at 299. Instead,
whether an act is discretionary involves an analysis of “whether the contribution [of immunity]
to effective government in particular contexts outweighs the potential harm to individual
citizens.” Id.
Soon after the Westfall decision, however, Congress amended the FTCA to provide
absolute immunity to government employees for all acts within the scope of their employment,

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discretionary or otherwise. United States v. Smith, 499 U.S. 160, 163 (1991). Despite Westfall
being superseded by statute, some circuits courts have continued to apply the Westfall test to
private actors contracting with the government. See Pani v. Empire Blue Cross Blue Shield, 152
F.3d 67, 72 (2d Cir. 1998) (“[T]he Westfall test remains the framework for determining when
nongovernmental persons or entities are entitled to the same immunity.”); Mangold v. Analytic
Servs., Inc., 77 F.3d 1442, 1447 (4th Cir. 1996) (“Extending such immunity to the private sector,
in the narrow circumstances where the public interest in efficient government outweighs the
costs of granting such immunity, comports with the principles underlying the immunity
recognized in Barr and Westfall.”); Slotten v. Hoffman, 999 F.2d 333, 337 (8th Cir. 1993)
(extending absolute immunity to a private party’s discretionary actions). Relying on these cases,
CMC and Harsco ask this court to also apply Westfall to government contractors.
b. Government Contractor Defense
When applicable, the “government contractor defense” displaces state tort law and
applies, instead, the “federal law of a content prescribed (absent explicit statutory directive) by
the courts – so-called ‘federal common law.’” Boyle, 487 U.S. at 504. This preemption,
however, “only [occurs] when the imposition of liability under state law would create a
‘significant conflict’ with federal policy in an area of ‘uniquely federal interest.’” Hudgens v.
Bell Helicopters/Textron, 328 F.3d 1329, 1333 (11th Cir. 2003) (quoting Boyle, 487 U.S. at 507).
The Supreme Court further limited the defense by adopting a three-part test to determine “the
scope of displacement.” Boyle, 487 U.S. at 513. Thus, in order to be immune from state tort
liability under Boyle, CMC and Harsco must demonstrate (1) the contract involves an area of
uniquely federal interest; (2) a significant conflict exists between the state law and that interest;

8

and (3) their actions were within Boyle’s “scope of displacement.” The court will elaborate on
each of these pre-requisites for immunity to attach.
i. Uniquely Federal Interest
In Boyle, relying on the unique federal interests of the “obligations to and rights of the
United States under its contracts” and “civil liability of federal officials for actions taken in the
course of their duty,” the Court held that the “the procurement of [military] equipment by the
United States is an area of uniquely federal interest.” 487 U.S. at 506-507. While Boyle only
held that a unique federal interest is present in military, procurement contracts, the Eleventh
Circuit has extended the defense to a “service contract between the [United States] Army and [a
government contractor].” Hudgens, 328 F.3d at 1334. Furthermore, in a pre-Boyle case,3 the
Eleventh Circuit rejected an arbitrary distinction between military and non-military contractors:
Although most recent decisions refer to the defense as being available to
“military” contractors, “[t]he rationale behind the defense is an extension of
sovereign immunity: in circumstances in which the government would not be
liable, private contractors who act pursuant to government directives should not
be liable.” Hansen v. Johns-Manville Products Corp., 734 F.2d 1036 (5th Cir.
1984, en banc ), cert. denied, 470 U.S. 1051, 105 S.Ct. 1749, 84 L.Ed.2d 814
(1985). Both the history of the defense and its general rationale lead us to the
conclusion that it would be illogical to limit the availability of the defense solely
to “military” contractors. If a contractor has acted in the sovereign's stead and can
prove the elements of the defense, then he should not be denied the extension of
sovereign immunity that is the government contract defense.
Burgess v. Colorado Serum Co., Inc., 772 F.2d 844, 846 (11th Cir. 1985); Richland-Lexington
Airport Dist. v. Atlas Properties, Inc., 854 F. Supp. 400, 421 (D.S.C. 1994) (“[T]here is simply
no reason why a nonmilitary contractor should be barred from enjoying this extension of
immunity simply because he does not contract with the armed forces.”).
ii. Significant Conflict

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While the Boyle court rejected the Eleventh Circuit’s formulation of the government contractor defense, 487 U.S. at
513, the reasoning to apply the defense to non-military contractors is still applicable.
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To determine if a “significant conflict” between the uniquely federal interest and state
law existed, the Boyle court identified the “discretionary function” exception found in the § 2680
of the FTCA as the “limiting principle” of the defense. 487 U.S. at 509. In other words, “the
discretionary function exception to the FTCA [] define[s] the parameters of the defense.”
Richland-Lexington, 854 F. Supp. at 419.
While the FTCA generally allows suit against the United States for the negligence of
government employees, 28 U.S.C. § 1346(b), § 2680(a) – the discretionary function exception –
excludes “[a]ny claim … based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty.” This “exception will not apply when a federal statute,
regulation, or policy specifically prescribes a course of action for an employee to follow.”
Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). If there is no prescribed
course of action, then the court “must determine whether that judgment is of the kind that the
discretionary function exception was designed to shield.” Id. “The discretionary function
exception is intended to prevent the courts from second-guessing ... administrative decisions
grounded in social, economic, or political policy through the medium of an action in tort.” U.S.
Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009) (quotations
and citation omitted). Thus, for challenged action or decision to be discretionary – and thus
create a significant conflict – it must be “based on considerations of public policy.” Berkovitz,
486 U.S. at 537; Boyle, 487 U.S. at 511 (finding a significant conflict where the challenged act
involved “judgment as to the balancing of many technical, military, and even social
considerations”).
iii. Scope of Displacement

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Even if the action or decision involves a uniquely federal interest and a significant
conflict between that interest and the state law, it must also be with the “scope of displacement”
for immunity to apply.

The court set out a three-part test to determine the “scope of

displacement”:
Liability for design defects in military equipment cannot be imposed, pursuant to
state law, when (1) the United States approved reasonably precise specifications;
(2) the equipment conformed to those specifications; and (3) the supplier warned
the United States about the dangers in the use of the equipment that were known
to the supplier but not to the United States.
Id. at 512. The court reasoned that these requirements were necessary to ensure “the suit is
within the area where the policy of the ‘discretionary function’ would be frustrated” and to avoid
“some incentive for the manufacturer to withhold knowledge of risks.” Id. Applying this test to
a service/maintenance contract, the Eleventh Circuit
rearticulate[d] the defense's three elements to foreclose liability under state tort
law if (1) the United States approved reasonably precise maintenance procedures;
(2) [the contractor’s] performance of maintenance conformed to those procedures;
and (3) [the contractor] warned the United States about the dangers in reliance on
the procedures that were known to [the contractor] but not to the United States.
Hudgens, 328 F.3d at 1335. In the present case, then, the “scope of displacement” test would
require that (1) the EPA approved reasonable precise clean-up procedures; (2) CMC and Harsco
followed those procedures; and (3) CMC and Harsco revealed any dangers regarding the cleanup activity of which the government was not aware to the EPA. See Richland-Lexington, 854 F.
Supp. at 424.
c. Application of Westfall and Boyle
Considering the parameters of the defenses, subsequent courts’ interpretations, and the
arguments of the parties, the court determines the issues to be the following:
(1) Whether Westfall applies to private, government contractors.

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(2) Whether, if Westfall applies, CMC and Harsco have demonstrated that their actions
and/or decisions were “discretionary,” as the term was used by the Westfall court.
(3) Whether CMC and Harsco’s actions and/or decisions under the non-military, nonprocurement contract involved a “uniquely federal interest.”
(4) Whether CMC and Harsco’s actions and/or decisions created a “significant conflict”
with a “uniquely federal interest.” More specifically, whether the actions and/or decisions were
discretionary within the meaning of § 2680(a) of the FTCA.
(5) Whether, if CMC and Harsco’s actions and/or decisions involved a “significant
conflict” between a “uniquely federal interest” and state tort law, the actions and/or decisions
were also within the “scope of displacement.”
Assuming, without deciding, that (1) Westfall applies to the present case and (3) the
challenged actions and/or decisions involve a “uniquely federal interest,” the court finds that
under issues (2) and (4) CMC and Harsco have failed to demonstrate that their actions and/or
decisions were discretionary. Because the parties have not demonstrated a “significant conflict,”
the court need not consider (5) whether the actions and/or decisions were within the “scope of
displacement.”
Accepting the allegations of the complaint, as it must, the court finds that the alleged
conduct was not “discretionary.” The complaint alleges that “no contamination existed … which
would have authorized, necessitated or required the Defendants … to have removed GIP’s
railroad track.” (Doc. 1, ¶¶ 16,). It also specifically alleges that the defendants had “no
discretion … to [] remove[] GIP’s track or cover[] it,” (id. at ¶ 17), and then, for good measure,
re-alleges that each defendant “did not possess discretion,” (id. at ¶¶ 38, 42, 46). Moreover, the

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complaint does not establish the costs and benefits of that decision.4 Without such facts, the
court cannot determine “whether the contribution [of immunity] to effective government …
[would] outweigh[] the potential harm to [GIP].” Westfall, 484 U.S. at 299. The complaint also
does not contain facts indicating who made the decision to convert GIP’s property, how that
decision was made, why the decision was made, or if the decision was approved by the
government. Again, without facts concerning the decision making process, the court cannot find
that the decision was “based on considerations of public policy.” Berkovitz, 486 U.S. at 537;
Richland-Lexington, 854 F. Supp. at 420 (“To trigger operation of the [government contractor
defense], a defendant must demonstrate that the governmental authority approved of the
challenged conduct and that this approval encompassed the permissible exercise of judgment.”).
The allegations in the complaint do not establish that CMC or Harsco’s conduct was
discretionary under either Westfall or Boyle. Thus, at this stage in the litigation, CMC and
Harsco have failed to demonstrate that they are entitled to immunity.
2. Immunity under § 2675(a)
CMC and Harsco also contend their status as contractors allows them to rely on the
United States’ defense that GIP did not file an administrative claim as required by the FTCA.
(Doc. 26, p. 11). GIP responds that “CMC and Harsco cite numerous cases which simply do not
stand for the proposition that the administrative claim requirement … applies to private
corporations.” (Doc. 31, p. 18). The court agrees with GIP. See Mann v. Pierce, 803 F.2d 1552,
1556 (11th Cir. 1986) (finding that the FTCA did not apply); Gregory v. Mitchell, 634 F.2d 199,
203-04 (5th Cir. 1981) (dismissing claims against the United States and a federal agency for
4

CMC and Harsco contend, briefly, that “any public funds paid by CMC and Harsco to the EPA from scrap
materials located on the Site and used to offset the cost of the Superfund site certainly convey a benefit to the public
by reducing the amount of government funds needed.” (Doc. 26, p. 7 n. 2). They then allege “[u]pon information
and belief” that the amount paid to the EPA exceeds one millions dollars. Id. There are several problems with this
argument; most notably, the defendants’ information and belief is not considered on a motion to dismiss. See
Grossman, 225 F.3d at 1231.
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failure to exhaust administrative remedies); Mays v. U.S. Postal Serv., 928 F. Supp. 1552, 1562
(M.D. Ala. 1996) aff'd, 122 F.3d 43 (11th Cir. 1997) (dismissing claims against the United States
Post Office); Richland-Lexington, 854 F. Supp. at 415 (analyzing the Contract Disputes Act).
CMC and Harsco cannot rely on the FTCA to shield them from state tort liability.
3. Stay
Alternatively, CMC and Harsco ask this court to stay the litigation, pending resolution of
GIP’s claim against the United States in the CFC. They contend that this case “would have
collateral estoppel and res judicata implications” and that a stay would “promote judicial
economies.” (Doc. 26, p. 14). GIP responds that “[r]es judicata does not apply” and that,
although collateral estoppel may apply, “that is simply the outcome that Congress has ordained.”
(Doc. 31, p. 19). The court is not persuaded that this action should be stayed.
Significantly, GIP was required to bring the separate actions in different courts. The
CFC “has exclusive jurisdiction to render judgment upon any claim against the United States for
money damages exceeding $10,000 that is ‘founded [] upon the Constitution ….’”

E.

Enterprises v. Apfel, 524 U.S. 498, 520 (1998) (emphasis added) (quoting 28 U.S.C. §
1491(a)(1)). Thus, “a claim for just compensation under the Takings Clause must be brought to
the [CFC] in the first instance.” Id. As to the state law claims, “the district courts … shall have
exclusive jurisdiction of civil actions on claims against the United States, for money damages, …
for injury or loss of property … caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment.” 28
U.S.C. § 1346 (emphasis added). Furthermore, the CFC does not have jurisdiction over tort
claims against private parties. See generally 28 U.S.C. § 1491. These actions could not be
brought together in the CFC or the district court.

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In their response, CMC and Harsco contend that despite the differing legal theories –
requiring different jurisdictions – the court should preclude GIP from receiving a double
recovery. (Doc. 34, pp. 7-8). CMC and Harsco are correct that GIP cannot recover twice for the
same injury under different legal theories.

See Gen. Tel. Co. of the Nw., Inc. v. Equal

Employment Opportunity Comm'n, 446 U.S. 318, 333 (1980) (“It also goes without saying that
the courts can and should preclude double recovery by an individual.”). However, the CFC “has
no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending
against the United States or its agents.” United States v. Tohono O'Odham Nation, 131 S. Ct.
1723, 1727 (2011) (interpreting 28 U.S.C. § 1500);5 UNR Indus., Inc. v. United States, 962 F.2d
1013, 1021 (Fed. Cir. 1992) aff'd sub nom. Keene Corp. v. United States, 508 U.S. 200, 113 S.
Ct. 2035, 124 L. Ed. 2d 118 (1993) (“[I]f the same claim is filed in another court after the
complaint is filed in the Claims Court, the Claims Court is by that action divested of
jurisdiction.”). Therefore, the continuation of this suit does not risk a double recovery for GIP,
and this court will not stay the proceeding in favor of the case before the CFC.
Conclusion
For the foregoing reasons, the United States’ Motion to Dismiss will be GRANTED, all
claims against the United States will be dismissed WITHOUT PREJUDICE, and CMC and
Harsco’s Motion to Dismiss, or in the Alternative, to Stay will be DENIED. The court will enter
a separate order to that effect contemporaneously.
This the 26th day of June 2014.

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“Two suits are for or in respect to the same claim … if they are based on substantially the same operative facts,
regardless of the relief sought in each suit.” Tohono O'Odham Nation, 131 S. Ct. at 1731.
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ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

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