Baker v. United States of America
MEMORANDUM AND ORDER Denying 10 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Marvin J. Garbis on 8/9/2017. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
* CIVIL ACTION NO. MJG-17-546
UNITED STATES OF AMERICA,
Memorandum and Order Re: Motion to Dismiss
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
This lawsuit arises out of the contamination of Frederick
Baker’s (“Plaintiff”) real property located in Annapolis,
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.
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
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.
informed the Navy personnel that this was on his property, and
“Facts” contained herein are as alleged by Plaintiff and
not necessarily agreed to by Defendant.
after he showed them a plat describing his property, the Navy
After subsequent investigation, the Navy
determined that Plaintiff did in fact own the property in
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.
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
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.
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
The State of Maryland’s numeric cleanup standard for GROs
and DROs is 230 mg/kg. The Navy’s report indicated that levels
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.
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.
subsequent environmental report indicated that the soil on the
Baker Property still had DRO levels exceeding Maryland’s soil
of GRO ranged from 3 to 380 mg/kg and levels of DROs ranged from
12 to 2,400 mg/kg.
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
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
The subsurface investigation report of the Northwest Ravine
during the fall of 2015 concluded that the majority of the
contamination was outside the naval Property and the Baker
Property. [ECF No. 1] at 11. Plaintiff contends that this
characterization of the location is incorrect.
contamination, with the loss attributable to risk and stigma,
was 560,900.00. The diminution in market value attributable to
the risk and stigma was $149,100.00. [ECF No. 1-1].
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
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
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.
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. 103].
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 the property damage;
(4) Correspondence between the Department of the Navy
regarding the right-of-entry agreement;
(5) A copy of an access agreement between Mr. Baker and the
Navy whereby the Department of the Navy agreed to make
certain payments to Mr. Baker in order to secure access
to his property needed for the sampling and study of the
(6) Materials relating to Plaintiff’s efforts to sell the
a. Including a letter from a real estate brokerage that
Mr. Baker consulted to ascertain whether his
property could be sold.
b. Letter from the brokerage stating that on account of
contamination, in his professional opinion, the
property is not saleable.
[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.
A party may seek dismissal for lack of subject matter
jurisdiction pursuant to Rule6 12(b)(1).
It is well established
that “[t]he burden of proving subject matter jurisdiction on a
[Rule 12(b)(1)] motion to dismiss is on the plaintiff, the party
asserting jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th
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.”
Waverley View Inv’rs, LLC v. United States, 79 F. Supp. 3d 563,
568 (D. Md. 2015) (quoting Evans v. B.F. Perkins Co., 166 F.3d
“Any claim based upon an act or omission of an employee of
the Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or regulation
be valid, or 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 an employee of the
Government, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a).
All aforementioned Rules refer to the Federal Rules of
642, 647 (4th Cir. 1999)).
A motion to dismiss pursuant to Rule
12(b)(1) may attack the complaint on its face or attack the
existence of subject matter jurisdiction. Richland-Lexington
Airport Dist. v. Atlas Properties, Inc., 854 F.
If the complaint is facially attacked, the Court must
accept the allegations as true, but no such presumption applies
to a factual attack. Id.
When considering a factual attack the
Court is free to weigh evidence outside of the pleadings and
satisfy itself as to the existence of its jurisdiction to hear
Waverley View Inv’rs, LLC, 79 F. Supp. 3d at 569.
Plaintiff brings this lawsuit under the FTCA, which
constitutes a “limited waiver” of the United States’ sovereign
Molzof v. United States, 502 U.S. 301, 305 (1992).
This statute renders the United States liable “in the same
manner and to the same extent as a private individual under like
As the FTCA constitutes a waiver of
sovereign immunity, the procedures set forth in Section 28
U.S.C. § 2675 must be adhered to strictly. Keene Corp. v. United
States, 700 F.2d 836, 841 (2d Cir. 1983).
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:
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 . . . .
The requirements of 28 U.S.C. § 2675 are met when claimant:
(1) Gives the agency written notice of his or her claim
sufficient to enable the agency to investigate;
(2) Places a value on his or her claim.
Williams v. United States, 693 F.2d 555, 557 (5th Cir.
1982)(quoting Adams v. United States, 615 F.2d 284, 288 (5th
The sufficiency of the notice requirement under 2675(a) is
“more than a question of technical niceties.” Keene Corp., 700
F.2d at 842.
The “goal of the administrative claim requirement
is to let the government know what it is likely up against:
mandating that a claimant propound a definite monetary demand
ensures that ‘[t]he government will at all relevant times be
aware of its maximum possible exposure to liability and will be
in a position to make intelligent settlement decisions.’” Reilly
v. United States, 863 F.2d 149, 173 (1st Cir. 1988) (quoting
Martinez v. United States, 780 F.2d 525, 530 (5th Cir. 1986)).
Thus, claims brought pursuant to § 2675(a) will be dismissed to
the extent there has been a failure to comply with the
Value of the Claim
The United States does not dispute that Plaintiff provided
adequate notice to the Navy of the nature of the claim.
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.
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.7
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. Crow v. United States, 631 F.2d 28,
30 (5th Cir. 1980).
The notice-of-claim requirement “is an
eminently pragmatic one: as long as the language of an
administrative claim serves due notice that the agency should
investigate the possibility of particular (potentially tortious)
conduct and includes a specification of the damages sought, it
fulfills the notice-of-claim requirement.”
Techs., Inc. v. United States, 221 F.3d 34, 40 (1st Cir. 2000).
Regarding notice via letters, in College v. United States,
572 F.2d 453 (4th Cir. 1978), the court determined that the
The SF 95 indicates in bold above the space to enter the
total amount of the claim, that “[f]ailure to specify may cause
forfeiture of your rights.” [ECF No. 11].
The box above the
space for the claimant’s signature states in boldface and
capital letters: “I certify that the amount of claim covers only
damages and injuries caused by the accident above and agree to
accept said amount in full satisfaction and final settlement of
this claim.” Id. See also Kokotis v. United States Postal Serv.,
223 F.3d 275, 277–78 (4th Cir. 2000)(providing an in-depth
analysis of evaluating the amount of an SF 95 claim).
letter did not meet the requirements under § 2675 because it
only stated that: an accident had occurred, due to the United
States, surgery was done at a medical center on specific dates,
and there was permanent injury.
Consequently, without including
a sum certain, the letter was fatally deficient to constitute a
valid claim. Id. at 454.
However, other courts have held that claimants met the
notice requirements of § 2675, even though the notice was “less
than ideal.” Richland-Lexington Airport Dist., 854 F. Supp. at
In Crow v. United States, 631 F.2d 28(5th Cir. 1980), the
United States Court of Appeals for the Fifth Circuit Court held
that an invoice and inventory of the items on which the
plaintiff’s claims were based, and two formal letters of demand
sent by the claimant’s attorney to the Defendant, constituted a
Id. at 30.
The Court observed that the
agency had all the information it required to enable it to
process and evaluate the claim. Id.
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.
See, e.g., Santiago- Ramirez v. Sec. of Dept. of Def., 984
F.2d 16, 20 (1st Cir. 1993); Farmers State Savs. Bank v. Home
Admin., 866 F.2d 276, 277 (8th Cir. 1989).
conscientious in pursuing his claim.
(1) Two 95s, which noted “see attached statement” for
information [ECF No. 1-1];
(2) The attachment stated that Mr. Baker was requesting
that the Navy pay him the $149,100.00 for the
diminished value of his property, or alternatively,
(2) purchase the Property for the full noncontaminated value [ECF No.1-1] at 3;
(3) A detailed appraisal regarding the appraised value of
his home with and without the contamination;
(4) The contention that his property was entirely
unsaleable [ECF No. 15-1];
(5) Receipts regarding his costs for the water services.
[ECF No. 15-1].
Unlike the plaintiff in College, Baker did in fact place a
specific dollar amount on his damages.
The SF 95 itself,
invites supplementation with additional pages. Murrey v. United
States, 73 F.3d 1448, 1452–53 (7th Cir. 1996).
the entirety of Plaintiff’s submission were read, notice of his
belief in the unsaleable condition of his home would “leap out
at the legally sophisticated reader.” Id. at 1453.
The situation presented by Plaintiff is analogous to that
in Williams v. United States, 693 F.2d 555 (5th Cir. 1982),
where the Court determined that the Government had sufficient
notice of the claim amount because the claimant had previously
filed an action in state court specifying that his damages were
$218,000.00. Id. at 558.
When the Williams claimant
subsequently filled out a 95 submission, requesting $7,000.00 in
property damages, and referred to his state action, it was
reasonable for the Government to supplement his 95 with the
facts contained in his complaint from the state action. Id.
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.” Erxleben v. United
States, 668 F.2d 268, 273 (7th Cir. 1981).
Even though framed
as an equitable resolution, Plaintiff provided the Navy counsel
with a definite figure representing the amount of damages he
claims he suffered as a result of his property’s being
unsaleable due to the contamination.9
Although Plaintiff used
the word “equitable” to effectively mean “fair,”– the
See Fallon v. United States, 405 F. Supp. 1320, 1322 (D.
Mont. 1976) (finding that a claim by a person injured on Post
Office property was sufficient even though on the Form 95 on the
line designated “personal injury” the words and figures
“approximately $15,000” appeared).
specification of the definite amount adequately advised the Navy
of its “maximum exposure.” Reilly, 863 F.2d at 173.
Plaintiff did not “withhold vital information and hinder
settlement of a claim in hopes of obtaining a disposition in
court.” College, 572 F.2d at 454.
On the contrary, Plaintiff
timely filed his 95 forms, with a good faith estimate of his
damages based on a documented appraisal.10
At the time of that
filing, he communicated that the Environmental Contamination
rendered his home “effectively unmarketable.” [ECF No. 15-1].
The Navy was apprised of the specifics of the claim by the
information contained in the submission and its correspondence
with Plaintiff in regards to requests for additional
information; combined, this satisfies the notice requirement and
statutory purpose of § 2675(a).
Plaintiff should not be
deprived of the chance to pursue his claim for damages sustained
where the Navy
was not misled as to how much damage was claimed
and why. See Little v. United States, 317 F. Supp. 8 (E.D. Pa.
1970) (determining that a plaintiff who inadvertently submitted
a claim only for her medical bills was nevertheless entitled to
See Funston v. United States, 513 F. Supp. 1000, 1007 (M.D.
Pa. 1981) (determining that where plaintiff’s administrative
request was broken down into claims for lost earnings, pain and
suffering, and the like, the statute places a limit only on the
aggregate amount of the claim, not on the various elements of
bring suit for a higher amount, when the government knew that a
mistake was made and had precise prior notice of the full amount
plaintiff was seeking in settlement of the claim).
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.”
Martinez v. United States, 728 F.2d 694, 697 (5th Cir. 1984)
(quoting Erxleben, 668 F.2d at 273).
It simply cannot be said
on the facts of this case that Plaintiff attempted to increase
the amount in excess of the amount originally presented to the
Rather, the Court finds that Plaintiff
adequately notified the Navy of the full amount of damage
attributable to the Navy’s alleged actions, for which he sought
As the United States was adequately placed on notice of the
sum certain value, there is no need to analyze whether this
falls into an exception under 28 U.S.C. § 2675(b).
For the foregoing reasons:
Defendant United States’ Motion to Dismiss Claims
Exceeding Administratively Sought Damages for Lack of
Subject Matter Jurisdiction [ECF No. 10] is DENIED.
Plaintiff shall arrange a telephone conference to be
held by August 30, 2017, to discuss the scheduling of
further proceedings herein.
SO ORDERED, on Wednesday, August 9, 2017.
Marvin J. Garbis
United States District Judge
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