Loughlin, Thomas P. v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2004 Decided December 21, 2004

No. 03-5284

Thomas P. Loughlin, et al.
Appellees

v.

United States of America and
American University,
Appellees

Glenbrook Limited Partnership, et al.
Appellants

Consolidated with
03-5286, et al.

Appeals from the United States District Court
for the District of Columbia
(No. 02cv00152)
(No. 02cv00294)
(No. 02cv00349)

Mitchell E. Zamoff argued the cause for appellants
Glenbrook Limited Partnership, et al. With him on the briefs
were Sten A. Jensen, Rene E. Browne, Matthew T. Ballenger, J.
Douglas Baldridge, Patrick M. Regan, Richard S. Lewis, and
 2

Victoria S. Nugent. Jonathan E. Halperin and Thanos Basdekis
entered appearances.

Mitchell E. Zamoff, Sten A. Jensen, Rene E. Browne, and
Matthew T. Ballenger were on the brief of appellant The
American University.

S. Michael Scadron, Senior Trial Counsel, U.S. Department
of Justice, argued the cause for appellee United States of America.
With him on the brief were Peter D. Keisler, Assistant Attorney
General, Kenneth L. Wainstein, U.S. Attorney, Jeffrey S.
Bucholtz, Deputy Assistant Attorney General, J. Patrick Glynn,
Director, and David S. Fishback, Assistant Director.

Richard S. Lewis and Victoria S. Nugent were on the brief
for appellee Camille Saum.

Before: EDWARDS and RANDOLPH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: The Federal Tort Claims Act
("FTCA") gives district courts jurisdiction over civil actions on
claims against the United States (the "Government") 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 or her employment, under circumstances where the
Government, if a private person, would be liable to the claimant
under the law of the place where the act or omission occurred.
See 28 U.S.C. §§ 1346(b), 2671-2680 (2000). This waiver of
sovereign immunity does not extend to claims against the United
States "based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation . . . or based upon the exercise or performance or the
 3

failure to exercise or perform a discretionary function." 28
U.S.C. § 2680(a).
This case involves an FTCA action brought by appellants –
American University ("AU"); Glenbrook Limited Partnership,
Lawrence N. Brandt, Inc., Lawrence N. Brandt, and Robert
Brant (collectively "Glenbrook-Brandt"); Thomas P. Loughlin
and Kathi Loughlin, individually and on behalf of their children;
Patricia Gillum; and Camille Saum – for the Government's
alleged negligence in (1) burying dangerous munitions and toxic
chemicals on property leased from AU in the Spring Valley area
of the District of Columbia around the time of World War I, (2)
failing to issue warnings about the buried munitions and
chemicals and the resulting dangerous conditions, and (3) failing
to investigate and remedy the hazards and contamination it
caused. Gillum and Saum initially filed their FTCA and local
law claims in D.C. Superior Court. Their local law actions
claimed that AU was liable to the plaintiffs under District of
Columbia law, because the dangerous munitions and toxic
chemicals on AU's property, and the hazardous conditions
resulting therefrom, caused injuries to neighboring property
owners. AU removed these actions to the District Court under
28 U.S.C. § 1441(b)-(c) (2000). The Loughlins filed both their
FTCA action and supplemental local law claims similar to those
filed by Gillum and Saum in District Court. The District Court
invoked its supplemental jurisdiction over all local law claims
against AU under 28 U.S.C. § 1367(a) (2000).
AU filed a motion under Rule 12(b)(6) of the Federal Rules
of Civil Procedure to dismiss the local law actions for failure to
state a claim. The District Court denied this motion and wrote
a lengthy opinion suggesting that the Loughlins, Gillum, and
Saum had stated a cause of action against AU under District of
Columbia law. See Loughlin v. United States, 209 F. Supp. 2d
165 (D.D.C. 2002) ("Loughlin I"). The District Court turned to
the FTCA matter after rendering a judgment on the
 4

supplemental action. The trial court first allowed the parties
jurisdictional discovery limited to the existence of rules,
regulations, or directives that might pertain to the first part of
the discretionary function exception. The District Court then
granted the Government's motion to dismiss with prejudice the
FTCA actions under the discretionary function exception. See
Loughlin v. United States, 286 F. Supp. 2d 1, 3 (D.D.C. 2003)
("Loughlin II"). Having found that it lacked subject matter
jurisdiction under the FTCA, the District Court dismissed all
remaining claims without prejudice. Id. at 30. The FTCA
claimants appeal the dismissal of their claims, as well as the
limited scope of the trial court's discovery orders. AU
separately appeals the District Court's denial of its motion to
dismiss the supplemental action against the University. In the
alternative, AU asserts that, if the actions resting on District of
Columbia law are moot, then the District Court's decision on the
non-federal claims should be vacated.
We affirm the District Court's dismissal of the FTCA claims
under the discretionary function exception. Although the trial
court's framework for discovery was misguided, we nonetheless
find that the parties had a full and fair opportunity to determine
the relevant jurisdictional facts and the District Court had an
adequate record upon which to rest its judgment. Finally, we
vacate the District Court's decision denying AU's motion to
dismiss. The District Court had no subject matter jurisdiction
over the FTCA action. Therefore, the trial court had no
supplemental jurisdiction under § 1367(a) to entertain non-
federal claims. Accordingly, because it should not have reached
the merits of the negligence claims under District of Columbia
law, the District Court's views on local law are a nullity and
must be vacated.
I. BACKGROUND
In April 1917, at the invitation of AU, the United States
Army leased grounds from the University and gave its Corps of
 5

Engineers ("Corps") exclusive control over the property. Later
that year, the Bureau of Mines established the American
University Experiment Station ("AUES") in order to consolidate
its chemical weapons research. When AUES was transferred
from civilian control to the War Department's newly formed Gas
Service, it became central to the Gas Service's Research
Division, which used the experiment station to develop,
manufacture, and test myriad chemical weapons. In order to
simulate battlefield conditions, gas weapons were tested in
trenches, bunkers, and pits created on the property. Loughlin II,
286 F. Supp. 2d at 3-4.
Shortly after the war's end, AUES was disbanded and the
Army transferred personnel and equipment to other bases. It is
undisputed, however, that some munitions and chemical warfare
materials remained buried in Spring Valley, either as a result of
weapons testing or deliberate burial. Id. at 4. In March 1920,
the Army signed an agreement pledging to restore the buildings
and grounds to the condition they were in when the Government
took control of the property. This agreement appears to have
been superceded, however, by a subsequent 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. Id. The Army nevertheless performed some salvage
and restoration work before leaving AUES; some contaminated
structures were burned and others were boarded up and
surrounded with fencing. Id. at 4 n.4.
In 1986, when AU embarked on plans to build a new
athletic facility, the University discovered a 1921 article in The
American University Courier, which reported that the Army had
buried munitions on or near the University campus during
World War I. The University notified the Army, which
conducted document reviews and scoured the site with metal
detectors, but did not uncover conclusive evidence of any buried
 6

munitions. Id. at 4. In 1990, American University sold property
to Glenbrook-Brandt, which planned to construct two houses, at
what is today 4825 and 4835 Glenbrook Road. In the course of
these construction projects, workers uncovered old laboratory
equipment and possible chemical contaminants. They also
experienced severe physical reactions to the site that required
emergency hospital care. Id. at 5. Glenbrook-Brandt informed
the University, which retained an industrial hygiene consulting
firm to investigate. The firm identified a herbicide, Silvex, in
the soil, which it explained could irritate the senses, but was not
a hazardous substance. Id.
Around this time, workers excavating land approximately
one mile from the Glenbrook-Brandt property discovered an
underground munitions bunker. That project's developer
contacted the Army, which commenced investigations that
lasted until 1995 and unearthed live and spent munitions and
chemical warfare-related materials from the World War I era.
These events gave rise to separate litigation against the United
States by the owner/developer of that property. Id. at 5 & n.6
(citing W.C. & A.N. Miller Cos. v. United States, 963 F. Supp.
1231 (D.D.C. 1997)).
In January 1994, the Army, now immersed in a
comprehensive investigation to locate buried weapons, sought
and received permission from Glenbrook-Brandt to access its
properties and sample the soil. Id. at 5. In February 1994,
Thomas and Kathi Loughlin tendered a purchase offer to buy the
property at 4825 Glenbrook Road. Glenbrook-Brandt disclosed
to the Loughlins the recent developments, and the Loughlins
hired an independent testing organization to sample the soil and
evaluate potential environmental hazards. This independent
firm found no contamination from hazardous substances. Id. at
5-6. On March 21, 1994, the Loughlins contracted to purchase
4825 Glenbrook Road.
 7

Meanwhile, on March 9, 1994, the Corps collected soil
samples from the Glenbrook-Brandt properties. Soil and
groundwater samples were also collected from other "points of
interest" throughout the area. In June 1995, the Defense
Department issued its final Record of Decision, which
concluded that no further action was necessary with respect to
the removal operation in Spring Valley. At this time, the Army
had removed from the area 141 pieces of ordnance, 43 of which
were suspected of being chemical weapons. Id. at 5.
The Environmental Protection Agency ("EPA") also
conducted soil sampling at 4825 Glenbrook Road during this
time. EPA collected seven samples on March 11, 1994, one of
which revealed heightened levels of arsenic. Id. at 6. Both the
Loughlins and Glenbrook-Brandt allege that they lacked
knowledge of this abnormal result until it was disclosed to them
by the Corps in early February 1999. Id. Indeed, in January
1995, the Corps issued a letter to the Loughlins and other Spring
Valley residents, which stated that the soil samples had not
revealed chemical agents or explosives and that no hazard to
human health or to the environment existed as a result of the
Army's activities at AUES. Id.
In June 1996, however, workers at the site of the AU
President's residence at 4835 Glenbrook Road, next door to the
Loughlins' home, suffered reactions to odors and fumes that
burned their eyes. These workers unearthed laboratory
glassware and broken bottles filled with chemicals. The
University hired 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
contamination included arsenic. Id. These events led the
District of Columbia to conduct its own investigation, which
also found elevated levels of arsenic and other toxic substances.
Id.
 8

In February 1998, the Corps conducted a geophysical
survey of the Korean Ambassador's residence at 4801 Glenbrook
Road, which also abuts 4825 Glenbrook Road, and found two
potential burial pits. The Corps informed Spring Valley
residents that it would investigate whether additional chemical
warfare-related materials existed at 4801 Glenbrook Road. A 75
millimeter projectile was discovered buried six inches deep in
the Ambassador's property in February 1999. Id. at 6-7.
In December 1998, the Corps also began further
investigation of the Loughlins' property "'to confirm the absence
of buried munitions, remnants thereof, and associated material.'"
Id. at 7 (quoting United States' Stat. of Material Facts Not in
Dispute ¶ 70). On June 9, 1999, the Corps collected 22 soil
samples. All but four of the samples contained elevated levels
of arsenic. Id. Based on the June 1999 samples, the Corps
concluded that there was an "'unacceptable hazard'" from arsenic
on the properties at 4801 and 4825 Glenbrook Road. Id. The
Corps informed the Loughlins, who were forced to permanently
evacuate their home. Since 1996, Army investigations in Spring
Valley unearthed 667 pieces of ordnance, including chemical
munitions and bottles of chemicals. These events spawned
several lawsuits. Id.
This case presents FTCA claims brought by appellants
against the Government. The Loughlins, Gillum, and Saum also
brought negligence claims against AU, id.; Loughlin I, 209 F.
Supp. 2d at 167, which brought cross-claims against the
Government under the FTCA, see Br. of AU, Loughlins,
Glenbrook-Brandt, Saum, and Gillum ("FTCA Appellants' Br.")
ii-iii. The Gillum and Saum actions were initially filed in
Superior Court and then removed to federal court under 28
U.S.C. § 1441(b)-(c). The Loughlins filed both their FTCA
action and their supplemental local law claims in District Court.
The District Court exercised its supplemental jurisdiction over
the local law claims under 28 U.S.C. § 1367. On March 13,
 9

2002, AU moved to dismiss the local law claims pursuant to
Rule 12(b)(6). On June 3, 2002, the District Court denied AU's
motion to dismiss, finding that AU owed a legal duty under the
applicable District of Columbia law. See Loughlin I, 209 F.
Supp. 2d at 167.
On September 20, 2002, the Government filed a motion to
dismiss or, in the alternative, for summary judgment against all
FTCA claimants (appellants) under the discretionary function
exception. See United States District Court for the District of
Columbia, Civil Docket for Case No. 1:02-cv-00294-ESH,
reprinted in Joint Appendix ("J.A.") 20, 28. Appellants argued
that the motion was premature, because jurisdictional discovery
was necessary. The District Court permitted jurisdictional
discovery limited to the existence of mandatory directives
relevant to the first part of the discretionary function exception.
See Loughlin II, 286 F. Supp. 2d at 7. The District Court
subsequently granted the Government's motion to dismiss under
the discretionary function exception, dismissing all claims
against the United States with prejudice, and all remaining
claims, including those against AU, without prejudice. See id.
at 30.
Appellants appeal the dismissal of their case under the
discretionary function exception and the court's restrictions on
jurisdictional discovery. See FTCA Appellants' Br. 10-41. AU
separately appeals the District Court's denial of its motion to
dismiss under Rule 12(b)(6), seeking reversal on the merits with
respect to Saum if we find jurisdiction under the FTCA, or
vacatur if we affirm the applicability of the discretionary
function exception. See Appellant AU's ("AU") Br. 9-11. Prior
to oral argument, we ordered, sua sponte, that counsel be
prepared to address the jurisdictional basis for this court to
exercise appellate review and the effect that a determination that
diversity jurisdiction exists for the case between Saum and
American University would have on AU's request for vacatur.
 10

See Loughlin v. United States, No. 03-5284, Order (D.C. Cir.
Oct. 15, 2004) ("Order of 10/15/04").
II. ANALYSIS
The FTCA vests the district courts with jurisdiction over
civil damages claims against the United States
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 . . . if a private person[]
would be liable to the claimant in accordance with the law
of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). This waiver of sovereign immunity is
limited in part by 28 U.S.C. § 2680(a), which insulates the
Government from suits regarding
[a]ny 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). The second clause of § 2680(a) "marks the
boundary between Congress' willingness to impose tort liability
upon the United States and its desire to protect certain
governmental activities from exposure to suit by private
individuals." United States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).
A. The Discretionary Function Exception
The discretionary function exception is a barrier to subject
matter jurisdiction. See Cope v. Scott, 45 F.3d 445, 448 (D.C.
Cir. 1995). A district court thus has no authority to address the
 11

merits of claims allegedly arising under the FTCA in cases in
which the plaintiff is unable to overcome this jurisdictional
barrier. Because federal jurisdiction determinations are purely
legal, we review de novo the District Court's judgment on the
applicability of the discretionary function exception. See
Macharia v. United States, 334 F.3d 61, 64 (D.C. Cir. 2003),
cert. denied, 124 S. Ct. 1146 (2004) (dismissal pursuant to FED .
R. CIV. P. 12(b)(1) reviewed de nov o); Cope, 45 F.3d at 450
(rulings on application of the discretionary function exception
reviewed de novo). A complaint may be dismissed on
jurisdictional grounds only if "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957).
The Supreme Court has established a two-step test to
determine whether a governmental act or omission falls within
the ambit of the discretionary function exception. See Cope, 45
F.3d at 448 (citing United States v. Gaubert, 499 U.S. 315
(1991)). These two prongs track the language of § 2680(a). The
first asks whether a "'federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow. . . .'" Gaubert, 499 U.S. at 322 (quoting Berkovitz v.
United States, 486 U.S. 531, 536 (1988)). If such a binding
directive exists, then "the employee has no rightful option but to
adhere to the directive." Berkovitz, 486 U.S. at 536. Failure to
abide by such directives opens the United States to suit under
the FTCA.
In the absence of such specific directives and where the
"challenged conduct involves an element of judgment," id., the
second step determines whether the challenged discretionary act
or omission is "of the nature and quality that Congress intended
to shield from tort liability." Varig Airlines, 467 U.S. at 813.
The Supreme Court has explained that "[b]ecause the purpose of
the exception is to prevent judicial second-guessing of
 12

legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action
in tort, . . . the exception protects only governmental actions and
decisions based on considerations of public policy." Gaubert,
499 U.S. at 323 (internal quotation marks and citations omitted).
"What matters is not what the decisionmaker was thinking, but
[rather] the type of decision being challenged . . . ." Cope, 45
F.3d at 449.
Appellants principally contend that the Government failed
to warn them of the buried munitions and toxic chemicals and of
the soil contamination that these materials purportedly created.
They argue that the District Court erred when it concluded that
these claims are covered by the discretionary function exception.
See FTCA Appellants' Br. 12-34.
Appellants first submit that the Government's decision not
to warn of the buried material violated binding directives. See
FTCA Appellants' Br. 23-34. If mandatory directives so
constrained the Government's discretion, the discretionary
function exception would not protect a failure to warn. We
agree with the District Court, however, that appellants have
failed to cite any regulations or policies that prescribed a
nondiscretionary duty to warn. We therefore affirm the District
Court's ruling on prong one of the discretionary function test for
the reasons enunciated by the District Court in its exhaustive
opinion. See Loughlin II, 286 F. Supp. 2d at 9-19.
Although appellants point to myriad documents from the
World War I era, they fail to identify a specific and binding
directive that (1) addressed AUES or research facilities in
general, and (2) proscribed the burial of munitions or required
that such burials be marked. As the District Court explained,
appellants point to a 1919 shipping order that addressed AUES
but did not discuss buried munitions, and a Gas Warfare
Bulletin that proscribed burial in most cases and required
 13

markings where burial was permitted, but gives no indication
that it applied to activities at AUES. See id. at 9-14.
Appellants also fail to identify specific and binding
directives that pertain to their negligence claims for the post-
1986 time period, i.e., after the Government had begun to
investigate the potential existence of submerged chemical
warfare materials and the risk of contamination. See id. at 14-
19. We reject, moreover, appellants' suggestion that the
Government had adopted an unwritten or de facto policy to
inform the community during this time period. As the District
Court concluded:
While . . . documents do suggest that the Army wished to
communicate information to the public about the progress
of its investigation, it reads far too much into them to argue
that they demonstrate an official, irrevocable commitment
to alert the public to every development in the search for
buried munitions, or to every potential danger that was
discovered.
Id. at 29. Thus, appellants have failed to identify relevant
binding directives or policies, the violation of which would
bring this case outside of § 2680(a).
We turn, then, to the second prong of the discretionary
function exception. Appellants argue that the Government's
failure to warn of the buried munitions and of the resulting
contamination was not a decision susceptible to public policy
considerations. See FTCA Appellants' Br. 12-23. First,
appellants seem to urge that the Government's decision to bury
the munitions without disclosing their burial during World War I
or its immediate aftermath is not the type of decision susceptible
to public policy considerations. This argument is untenable.
The decision whether to warn of these burials in the immediate
aftermath of the War was "fraught with . . . public policy
considerations," Cope, 45 F.3d at 449 (internal quotation marks
 14

omitted). As the District Court observed, it required balancing
"competing concerns of secrecy and safety, national security and
public health." Loughlin II, 286 F. Supp. 2d at 23. Indeed, at
oral argument, appellants' counsel conceded that national
security concerns are greater when the decision whether to warn
is contemporaneous with the war effort. See Recording of Oral
Argument at 3:17-:28.
Appellants contend, however, that because the
Government's duty to warn was ongoing, concerns that were
salient in wartime cannot determine the nature of the
Government's decision not to warn over the subsequent 80 years.
See FTCA Appellants' Br. 22; Recording of Oral Argument at
2:30-:49. The argument is without merit. Appellants' position
assumes that the Government was required consistently and
regularly to revisit its initial decision not to warn and re-balance
the relevant factors. A judicially constructed requirement to
rethink particular decisions not to warn on a regular basis for
over 80 years would constitute precisely the "judicial second-
guessing" that the discretionary function exception was intended
to displace. Gaubert, 499 U.S. at 323 (internal quotation marks
omitted). It would insert the courts into prioritization and
resource allocation decisions that implicate serious political,
social, and economic considerations. Instead, in order for us to
consider whether the decision not to warn was susceptible to
public policy considerations in subsequent years, appellants
must identify circumstances in which the Government itself
would have revisited the decision not to warn.
Appellants point to two such events. The first is a finding
by EPA that one of seven soil samples collected in 1994 from
the 4825 Glenbrook Road property revealed heightened levels
of arsenic. See FTCA Appellants' Br. 22. Appellants allege that
they were not informed of this result until 1999. Second,
appellants allege that they were not informed of a 1993 Draft
Field Sampling Plan, which identified as "points of interest" two
 15

munitions pits adjacent to the 4825 Glenbrook property. See id.;
see also Engineering-Science, Inc., 1 Field Sampling Plan for
Hazardous and Toxic Waste, Spring Valley Project,
Washington, D.C. (on behalf of the U.S. Army Corps of
Engineers), 6/30/93 ("Draft Field Sampling Plan"), J.A. 2857,
2878. Appellants submit that the Government's knowledge of
specific hazards (the abnormal soil sample and the points of
interest in the Draft Field Sampling Plan) renders the decision
whether to warn void of public policy considerations. See
FTCA Appellants' Br. 22.
Appellants' arguments on these two points fail for the
reasons provided by the District Court:
In deciding whether this information [on the abnormal soil
sample result] should be made public, the agency would
have had to weigh several factors, including the reliability
of the test, the significance of one unusual result, the
possibility of unnecessarily alarming Spring Valley
residents should the danger have ultimately proved
unfounded, and whether further testing should be done
before this data was revealed. Conducting this delicate
balance is a matter that calls for discretion of the sort that
the FTCA shields from judicial second-guessing. . . .
Similarly, with respect to the pits, while there were two
shell pits . . . identified in a Draft Field Sampling Plan
prepared by the Corps in 1993 . . . , no information existed
at the time that the pits actually contained munitions. . . .
[T]he existence of munitions pits–which were constructed
to test, not bury, explosives–does not necessarily indicate
the presence of buried contaminants. Certainly, the Plan
which claimants suggest was withheld from them does not
indicate that weapons or other toxic materials were actually
in the ground. As such, the Army's decision whether to
announce this limited information, with its highly
speculative relationship to actual risk, is subject to the same
 16

policy considerations that attended upon EPA's decisions
whether to go public with its soil test results.
Loughlin II, 286 F. Supp. 2d at 28-29 (internal quotation marks
and citations omitted). The District Court's judgment is
consistent with this court's decision in Wells v. United States,
851 F.2d 1471 (D.C. Cir. 1988), where we held that the
discretionary function exception barred claims that EPA
negligently failed to inform residents neighboring three lead
smelters of potential risks and to provide a timely remedy for the
hazards. See id. at 1472. Wells concluded that EPA's decision
to engage in further study to determine the appropriate lead
testing level was based on public policy considerations,
including the socio-political and economic implications of
recognizing an action level in one situation that could not be
consistently applied. See id. at 1473, 1477.
Appellants contend, however, that Cope v. Scott, not Wells,
controls this case. In Cope, we held that prong two of the
discretionary function exception did not extend to the
Government's decision not to post a warning sign on a particular
strip of road. See Cope, 45 F.3d at 451. We rejected the
Government's purported public policy concern of aesthetics,
given the numerous signs on the same stretch of road. See id. at
452. Appellants submit that just as Cope held that the decision
whether to post warning signs in suitable locations was not
susceptible to public policy considerations once other warning
signs were placed on the same strip of road, the Government's
decision in 1999 to warn Spring Valley residents of
contamination reveals that public policy considerations did not
determine the Government's earlier decisions not to issue such
warnings. Thus, appellants argue, the only remaining questions
are what the Government knew and when, which turn on
negligence law, not public policy. See Recording of Oral
Argument at 13:25-:52. This argument cannot carry the day for
appellants.
 17

The geography gap in Cope (warning sign at one location
but not at another) is not analogous to the time gap here
(warning issued in 1999 but not earlier). In Cope, the presence
of no less than 23 signs on the same strip of road was probative
of the nature of the decision to place an additional warning sign,
because it demonstrated that the Government was not concerned
with preserving a pristine view on the particular stretch of road.
See Cope, 45 F.3d at 452 ("[T]he Park Service has chosen to
manage the road in a manner more amenable to commuting
through nature than communing with it."). In contrast, the
Government's decision to warn Spring Valley residents of
contamination in 1999 sheds no light on whether the prior
decision not to warn was "'susceptible to policy judgment' and
involve[d] an exercise of 'political, social, [or] economic
judgment.'" Cope, 45 F.3d at 448 (quoting Gaubert, 499 U.S. at
325; Varig Airlines, 467 U.S. at 820) (second alteration in
original). That a Government agent in 1999 made a different
decision is irrelevant. See, e.g., Allen v. United States, 816 F.2d
1417, 1424 (10th Cir. 1987) ("However erroneous or misguided
[the government's] deliberations may seem today, it is not the
place of the judicial branch [through the FTCA] to now question
them."). The passage of time gave the Government more
information to digest, an opportunity to re-weigh the political,
social, and economic considerations, and occasion to make a
new policy judgment. The earlier judgment was no less a matter
of policy because the later judgment was arguably better
informed.
In other words, the nature of the decision whether to warn
in 1999 was different from the nature of the decision whether to
warn prior to 1999 because of intervening discoveries that
rendered the risk to public health substantially less speculative.
The burial pit on the property of the Korean Ambassador, which
abuts the Loughlins' property, was not discovered until 1998-
1999. When this pit was finally located, it was found to contain
submerged munitions. Loughlin II, 286 F. Supp. 2d at 28 n.27.
 18

In addition, 18 of 22 soil samples taken in June 1999 revealed
elevated levels of arsenic. Id. at 7. Thus, the warnings that were
issued in 1999 followed the discovery of a new burial pit and
extensive new soil sampling results. They do not shed light on
the nature of the earlier decisions not to warn.
B. The Discovery Orders
Before leaving the FTCA appeal, we turn to appellants'
challenge to the District Court's discovery orders. Appellants
submit that the District Court abused its discretion by limiting
discovery to the existence of binding directives under prong one
of the discretionary function exception. See FTCA Appellants'
Br. 34-40. We review the District Court's discovery rulings for
abuse of discretion. See Macharia, 334 F.3d at 64. Although
the District Court's partition between "prong-one discovery" and
"prong-two discovery" is misguided, we find no basis for
reversal.
Because the prong-two inquiry looks to the type of decision
whether to warn, irrespective of considerations that factored into
the actual decision, see Cope, 45 F.3d at 449, it may often be the
case that discovery is unnecessary to determine whether prong
two of the discretionary function exception extends to any
particular act or omission. There are situations, however, where
the factual predicate is critical to an accurate analysis of the
nature of the decision made. In Cope, for example, we rejected
the Government's purported policy justification because we
considered it in light of the factual context: The government's
alleged aesthetic considerations were undermined by the
presence of multiple signs on the same stretch of road. See
Cope, 45 F.3d at 452.
The District Court therefore erred in suggesting that our
"[c]ircuit law permits discovery as to prong 1 only." Tr. of
Status Conference of 12/16/02, J.A. 1728, 1796. Ignatiev v.
United States, 238 F.3d 464 (D.C. Cir. 2001), on which the
 19

District Court relied, see Tr. of Mots. Hearing of 1/13/03, J.A.
1826, 1834, is not on point. In Ignatiev, FTCA claimants
alleged that the Secret Service "likely had internal objectives or
policies that created the requisite mandatory obligation" to take
certain safety precautions, which the claimants alleged had not
been taken. 238 F.3d at 466. We held that the lower court erred
in not permitting discovery on the existence of such directives,
noting that "the only discovery necessary to establish
jurisdiction pertains . . . to the existence vel non of internal
governmental policies . . . ." Id. at 467. Circumscribing
discovery in this way was consistent with the Ignatiev
appellants' claim. Even in Ignatiev, however, we recognized
that where "facts [are] necessary to establish jurisdiction,"
plaintiffs must be afforded the "opportunity for discovery of
[such] facts . . . prior to" the granting of a motion to dismiss for
lack of subject matter jurisdiction. Id.
Jurisdictional discovery on the data that was available when
a particular decision was made may be especially salient in the
failure-to-warn context, where the speculativeness of the risk
affects the nature of the decision not to disclose. Indeed, the
District Court relied on such facts when it concluded that the
discretionary function exception applies to appellants' failure-to-
warn claim. See Loughlin II, 286 F. Supp. 2d at 28 ("[W]hile
there were two shell pits . . . identified in a Draft Field Sampling
Plan prepared by the Corps in 1993 . . . , no information existed
at the time that the pits actually contained munitions."). When
such facts are probative of the nature of the decision itself,
jurisdictional discovery may be illuminating. No bright line rule
confines discovery to prong one of the discretionary function
exception. The suggestion, moreover, that one can neatly
partition "prong-one discovery" from "prong-two discovery" is
misleading. Evidence that sheds light on the type of decision
made is not necessarily distinct from evidence on binding
directives that would be responsive to prong one. The search for
 20

binding directives may – and here, did – uncover important facts
pertaining to the nature of the decisions at issue.
Although the District Court misconstrued our case law on
jurisdictional discovery, the discovery orders nonetheless
afforded the parties a full and fair opportunity to pursue relevant
information, which, in turn, allowed the District Court to make
a just finding on the speculativeness of the risk. This occurred
because, as it turned out in this case, the so-called prong-one
discovery reasonably embraced the available data on potential
hazards. The 1993 Draft Field Sampling Plan identified pits
and trenches as "potential burial areas," and presented "sampling
activities [to] be used to evaluate the possible presence of
chemical agents or chemical agent-related contamination and
explosives or explosive-related contamination." Draft Field
Sampling Plan at J.A. 2901. The Draft Field Sampling Plan
itself, therefore, undermines the suggestion that the Government
had specific knowledge of buried munitions or contamination in
the area. A Final Remedial Investigation Evaluation Report
explains that the location of "point of interest 24," the munitions
pit that was eventually discovered on the Korean Ambassador's
property, was revised when aerial and supporting photographs
were reevaluated as a result of a 1997 evaluation of the earlier
remedial investigation. See U.S. Army Engineering and Support
Center, U.S. Army Corps of Engineers & Parsons Engineering
Science, Inc., Final Remedial Investigation Evaluation Report,
Operation Safe Removal Formerly Used Defense Site,
Washington, D.C., 1/8/98, J.A. 1972, 2078. Thus, the
documents cited by appellants reveal an involved investigation
and Government actors struggling to define the scope of the
potential hazard.
To the extent that appellants seek additional discovery
relevant to the prong-two inquiry, they have failed to
particularize their requests. In their briefs and when pressed at
oral argument, appellants consistently failed to articulate
 21

precisely what information, pertaining to the nature of the
decision whether to warn, they had been denied. See Recording
of Oral Argument at 32:17-34:59. Given the sprawling record
already compiled in this case and appellants' failure to
particularize additional discovery requests, we conclude that the
District Court's discovery orders reasonably provided the trial
court and this court with the necessary facts to evaluate the
nature of the challenged decisions.
C. Disposition of the District Court Opinion Denying
American University's Motion to Dismiss under Rule
12(b)(6).
The only remaining question is whether the District Court's
decision addressing the local law claims can survive the court's
subsequent determination that it lacked subject matter
jurisdiction over the federal claims. We hold that it cannot.
The District Court considered claims against AU pursuant
to its supplemental jurisdiction under 28 U.S.C. § 1367. Section
1367(a) provides:
[I]n any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution. . . .
28 U.S.C. § 1367(a). The District Court exercised supplemental
jurisdiction over the local law claims against AU based on its
original jurisdiction over the FTCA claims against the
Government. On March 13, 2002, AU moved to dismiss the
local law claims pursuant to Rule 12(b)(6). The District Court
denied AU's motion to dismiss, because it found that AU owed
a legal duty under the applicable District of Columbia laws. See
Loughlin I, 209 F. Supp. 2d at 167-69. AU seeks vacatur of the
 22

court's decision, because the District Court had no authority to
exercise supplemental jurisdiction and render a decision against
AU in the absence of subject matter jurisdiction in the FTCA
action. AU also fears that litigants will attempt to invoke the
opinion in other proceedings. AU's concern is well founded.
The opinion has been cited as authoritative by other plaintiffs
suing AU in Superior Court. See Pls.'s Opp'n to Def. The
American University's Mot. to Dismiss, Jach v. Am. Univ., No.
03-CA-004659 (D.C. Super. Ct.), filed 9/4/03, reprinted in
Appellee Saum's Br. Add. 61, 84 ("All three of these arguments
[against a legal duty owed by AU to Spring Valley residents]
have already been rejected by the federal court in denying AU's
motion to dismiss the Spring Valley personal injury cases in the
case of Loughlin v. United States, 209 F. Supp. 2d 165 (D.D.C.
2002) (applying D.C. law).").
Appellee Saum contests AU's standing to seek vacatur. See
10/17/04 Letter filed by Appellee Saum, in response to Order of
10/15/04 ("Letter from Saum of 10/17/04"). Saum confuses
standing with mootness, however. Although Article III's case-
or-controversy requirement undergirds both our standing and
mootness jurisprudence, the two justiciability doctrines differ in
critical respects. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). As the Court has
noted, its "repeated statements that the doctrine of mootness can
be described as 'the doctrine of standing set in a time frame'"
may have created an impression of greater overlap than actually
exists between the two doctrines. Id. at 189-91 (internal
citations omitted). In fact,
[s]tanding doctrine functions to ensure, among other things,
that the scarce resources of the federal courts are devoted to
those disputes in which the parties have a concrete stake. In
contrast, by the time mootness is an issue, the case has been
brought and litigated, often (as here) for years.
 23

Id. at 191. In other words, "[m]ootness doctrine encompasses
the circumstances that destroy the justiciability of a suit
previously suitable for determination." 13A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & ED WARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3533 (2d ed. 1984).
The issue here is not whether AU lacked standing; indeed,
AU was the defendant who removed cases involving local law
claims to federal court, so its standing was never an issue.
Rather, the issues here are whether the local law claims against
AU, which rested solely on the District Court's supplemental
jurisdiction, were rendered moot due to the court's determination
that it lacked subject matter jurisdiction over the FTCA case,
and, if so, whether the District Court's decision addressing the
merits of the non-federal claims must be vacated.
Saum contends that AU has no "standing to appeal,"
because the non-federal claims are no longer before the District
Court. Letter from Saum of 10/17/04. In furtherance of this
argument, Saum suggests that the District Court's opinion on the
merits should not be disturbed, because it was issued against AU
before the court decided that it had no supplemental jurisdiction.
See Appellee Saum's Br. 4-5. According to Saum, this
confluence of circumstances bars AU from seeking vacatur of
the District Court's decision on appeal. See id. These
contentions are meritless in light of the Supreme Court's
decision in Arizonans for Official English v. Arizona, 520 U.S.
43 (1997).
The action in Arizonans for Official English was mooted
just after the district court had rendered a judgment in plaintiff's
favor, but before the court of appeals had heard the appeal. The
Ninth Circuit declined to find the case moot and upheld the
judgment for the plaintiff. Before the Supreme Court, plaintiff-
respondent urged that "the District Court judgment should not
be upset because it was entered before the mooting event
occurred and was not properly appealed." Id. at 72. While
 24

expressing "grave doubts" over whether the named petitioners
had standing to pursue appellate review, id. at 66, the Supreme
Court nonetheless entertained the appeal, held that the case was
moot, and concluded that "vacatur down the line" was required,
id. at 75. In reaching this result, the Court stressed that:
"[E]very federal appellate court has a special obligation to
satisfy itself not only of its own jurisdiction, but also that of
the lower courts in a cause under review . . . . And if the
record discloses that the lower court was without
jurisdiction this court will notice the defect . . . . [When the
lower federal court] lack[s] jurisdiction, we have
jurisdiction on appeal, not of the merits but merely for the
purpose of correcting the error of the lower court in
entertaining the suit."
Id. at 73 (quoting Bender v. Williamsport Area Sch. Dist., 475
U.S. 534 (1986) (internal quotation marks and citations
omitted)) (alterations in original).
Saum appears to submit that the District Court in this case
had subject matter jurisdiction over the local law negligence
claims at the time when it ruled on AU's motion to dismiss,
irrespective of whether it ultimately lacked such jurisdiction.
See Appellee Saum's Br. 4- 5. There is no merit to this
contention. As we held in Tuck v. Pan American Health
Organization, 668 F.2d 547 (D.C. Cir. 1981), subject matter
jurisdiction "is, of necessity, the first issue for an Article III
court," for "[t]he federal courts are courts of limited jurisdiction,
and they lack the power to presume the existence of jurisdiction
in order to dispose of a case on any other grounds." Id. at 549.
In the absence of subject matter jurisdiction, the District Court's
finding that AU owed Spring Valley residents a legal duty
constitutes little more than an impermissible advisory opinion.
Cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101
(1998) ("Hypothetical jurisdiction produces nothing more than
a hypothetical judgment – which comes to the same thing as an
 25

advisory opinion, disapproved by this Court from the
beginning.").
In addition, as Arizonans for Official English indicates, an
appellate court may act sua sponte to vacate a trial court
decision if it determines that the lower court lacked jurisdiction
due to mootness. This is precisely what happened in Flynt v.
Weinberger, 762 F.2d 134 (D.C. Cir. 1985) (per curiam), where
the District Court dismissed plaintiff's action as moot, but
offered an opinion on the merits. On appeal, we affirmed the
dismissal of the case on grounds of mootness and sua sponte
vacated the District Court's opinion. The decision in Flynt holds
that the district court, while purporting to dismiss the case
for lack of jurisdiction, improperly considered and offered
judgments on the underlying merits of the dispute. . . .
Where a controversy has become moot, it is the duty of
the appellate court to clear the path for future relitigation of
the issues raised. Accordingly, while we affirm the
dismissal of this particular complaint on the ground that it
is moot, we vacate the opinion of the district court.
Id. at 135-36 (citing United States v. Munsingwear, 340 U.S. 36,
40 (1950)). This holding is on point here. As in Flynt , the
District Court in this case had no jurisdiction to render a
judgment on the merits of the matters before it. Therefore, the
decision of the District Court must be vacated to "clear[] the
path for future relitigation by eliminating a judgment [AU] was
stopped from opposing on direct review." Arizonans for Official
English, 520 U.S. at 71 (internal quotation marks omitted). We
"utilize[] vacatur 'to prevent a judgment, unreviewable because
of mootness, from spawning any legal consequences,'"
irrespective of whether such consequences are imminent or
"remote." Am. Family Life Assurance Co. v. FCC, 129 F.3d
625, 631 (D.C. Cir. 1997) (quoting Munsingwear, 340 U.S. at
41).
 26

In this case, had the District Court properly considered the
FTCA action before addressing the claims that rested solely on
supplemental jurisdiction, it would have been clear beyond the
slightest doubt that Saum had neither subject matter jurisdiction
nor standing to seek a federal court ruling on the merits of her
local law claims against AU. Saum's suit against AU would
have been dismissed for want of subject matter jurisdiction with
no decision from the District Court on the merits. Saum surely
cannot avoid vacatur merely because the District Court
considered the FTCA and local law actions in the wrong order.
Finally, having foregone the opportunity to cross-appeal on
the issue of subject matter jurisdiction, Saum now argues for the
first time that the District Court in fact had jurisdiction over the
claims against AU under 28 U.S.C. § 1332(a) (2000) (diversity
of citizenship). See Appellee Saum's Br. 6. This claim comes
too late and barren of the requirements necessary to establish
diversity jurisdiction.
In her brief to this court, Saum acknowledges that "[n]either
of the parties presented diversity as the basis for jurisdiction in
the district court. Indeed, the University, as the removing
defendant, was precluded from asserting diversity in support of
its removal notice under 28 U.S.C. § 1441(b)." Appellee Saum's
Br. 6 n.2. Saum adds that she "was not required to amend her
complaint after the removal and set forth basis for federal court
jurisdiction." Id. This argument misses the point. AU's
removal rested in part on an assumption that the District Court
had supplemental jurisdiction over the non-federal claims under
28 U.S.C. § 1367(a). When it became clear that the court lacked
supplemental jurisdiction, Saum had no grounds upon which to
pursue her claims against AU unless she amended her complaint
to establish diversity jurisdiction. She never did this.
"Because federal courts are of limited jurisdiction, there is
a presumption against the existence of diversity jurisdiction.
Accordingly, the party seeking the exercise of diversity
 27

jurisdiction bears the burden of pleading the citizenship of each
and every party to the action." Naartex Consulting Corp. v.
Watt, 722 F.2d 779, 792 (D.C. Cir. 1983) (internal citations
omitted). Saum has never pleaded the facts necessary to
establish diversity. In a supplemental submission to this court,
Saum does nothing to meet her burden. Rather, relying on
District of Columbia ex rel. American Combustion, Inc. v.
Transamerica Insurance Co., 797 F.2d 1041, 1044 (D.C. Cir.
1986), Saum merely argues that diversity jurisdiction may be
found and exercised in the court of appeals where the facts
establishing such jurisdiction appear in the record. See Letter
from Saum of 10/17/04. Saum misconstrues Transamerica.
In Transamerica, we stated that "a party who has not
proved, or even alleged, that diversity exists [may] amend his
pleadings even as late as on appeal," particularly when the
amendment is uncontested. Id. at 1044 (discussing 28 U.S.C. §
1653 (1982) ("Defective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.")). Unlike
the appellee in Transamerica, Saum has not moved to amend
her complaint to aver diversity jurisdiction. And she has
presented no rationale that would warrant a departure from this
requirement. See, e.g., Wolfe v. Marsh, 846 F.2d 782, 785 n.4
(D.C. Cir. 1988) (per curiam). Nor has Saum cross-appealed on
the jurisdictional issue. Diversity jurisdiction must be pleaded
by the party claiming it. Jurisdictional pleading must not be
reduced to a mere afterthought years after the commencement of
the action. The court cannot act without jurisdiction and it is the
complaining party's burden to plead it. The question whether
diversity exists here has not been conceded by AU, and it has
not been properly presented by Saum.
There is a further problem with Saum's position. Even if we
were to find diversity jurisdiction, there would be no appropriate
redress. The District Court dismissed Saum's action for lack of
subject matter jurisdiction, and Saum has never appealed that
 28

judgment. Any decision by this court finding diversity would be
merely advisory. We therefore decline Saum's belated invitation
to determine whether there is an adequate basis for diversity
jurisdiction.
In sum, the District Court had no subject matter jurisdiction
over the FTCA action. The court had no supplemental
jurisdiction under § 1367(a) to entertain any of the non-federal
claims. Accordingly, we hold that, because it should not have
reached the merits of the negligence claims under District of
Columbia law, the District Court's decision against AU on local
law claims is a nullity and must be vacated.
III. CONCLUSION
The District Court's dismissal of appellants' FTCA claims
under the discretionary function exception is hereby affirmed.
The District Court's decision in Loughlin v. United States, 209
F. Supp. 2d 165 (D.D.C. 2002), which purports to address the
local law claims, is hereby vacated.
So ordered.