United States Court of Appeals
For the First Circuit
No. 04-1909
MARINA BAY REALTY TRUST LLC; NEPONSET CIRCLE
SKILLED NURSING AND REHABILITATION CENTER II, INC.;
GORDON DEVELOPMENT GROUP, INC.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA; U.S. DEPT. OF DEFENSE;
U.S. DEPARTMENT OF THE NAVY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer, Senior District Judge.*
William A. DeVasher, Jr., with whom Michael B. Cosentino,
Molly Cochran, and Seegel, Lipshutz & Wilchins, P.C., were on
brief, for appellants.
David C. Shilton, Attorney, Appellate Section, with whom
Thomas L. Sansonetti, Assistant Attorney General, Andrew Doyle,
Attorney, Environmental Defense Section, and John Stahr, Attorney,
Appellate Section, U.S. Department of Justice, Environment &
Natural Resources Division, were on brief, for appellees.
Theodore L. Hunt, Attorney, with whom Peter D. Keisler,
Assistant Attorney General, J. Patrick Glynn, Director, Joann J.
*
Of the District of Columbia, sitting by designation.
Bordeaux, Deputy Director, David S. Fishback, Assistant Director,
and Henry T. Miller, Senior Trial Counsel, U.S. Department of
Justice, Civil Division, Torts Branch, Environmental Torts Section,
were on brief, for appellees.
May 3, 2005
STAHL, Senior Circuit Judge. This case asks us to decide
whether the United States has waived its sovereign immunity for a
suit by a private owner to recover monetary damages for its cleanup
of past oil contamination on property that was formerly a United
States Navy base. Finding that the United States has not waived
its sovereign immunity, we affirm.
I. BACKGROUND
In 1917, the Defendant-Appellee United States1 acquired
600-plus acres of land located in Quincy, Massachusetts, including
the subject of this litigation, a 3.8 acre parcel of land referred
to by the parties as "Lot 50." From 1917 to 1953, the United
States used the 600-plus acre parcel, including Lot 50, for various
defense purposes, including as a Naval air station. In conjunction
with the property's operation, the United States government made
various improvements to the property, including construction of an
airplane hangar, an airplane parking lot, and the installation of
a 3,000 gallon underground storage tank to hold fuel oil for the
hangar heating system.2
1
This action was brought against the United States of America,
the United States Department of Defense, and the United States
Department of the Navy, which we collectively refer to as the
"United States."
2
A 1948 plan and diagram of the airplane hangar shows that a
second, smaller underground storage tank was located near the
newly-installed 3,000 gallon underground storage tank. It is
unclear when the smaller underground storage tank was installed.
The contamination in this case stems only from the corrosion of the
3,000 gallon tank.
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In 1954, the Navy deactivated and closed the base, and
subsequently offered the property for sale. On December 5, 1956,
the 600-plus acre parcel, including Lot 50, was transferred to
Boston Edison Company by deed "without any covenants or warranties
whatsoever, either express or implied." During Boston Edison's
ownership of the property, the airplane hangar was removed, and
approximately two to three feet of fill was placed on Lot 50,
covering the hangar's concrete foundation and the surrounding
asphalt airplane parking area.
At some time in 1997, Peter Gordon, looking for a
potential site for the construction of a nursing home, began
negotiating for the purchase of a twelve-acre parcel that included
Lot 50.3 As part of a due diligence inspection, an environmental
site assessment of the property was prepared. Because of the
property's prior use, the site assessment noted that there could be
3
Gordon owns and controls all Plaintiff-Appellant entities
(collectively "Plaintiffs" or "Appellants") in this action.
Appellant Marina Bay Realty Trust LLC ("Marina Bay") is a property
holding company that was formed to acquire the twelve-acre parcel
(including Lot 50). Appellant Neponset Circle Skilled Nursing and
Rehabilitation Center II, LLC ("Neponset") was formed to operate
the nursing homes owned by the Gordon entities. Appellant Gordon
Development Group, Inc. ("Gordon Development") was formed to
supervise and oversee the construction of a nursing home on Lot 50
after Lot 50 was sold and transferred to Alliance Health of
Brockton, Inc. ("Alliance"). Alliance is not a party to this
action and is not related or affiliated with the Appellant
entities. At times, we refer to actions being taken by "Gordon,"
although we do not imply that Gordon was acting at any time in his
personal capacity, but at all times in his professional capacity on
behalf of one of his various entities.
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underground storage tanks on the property, and advised that a
geophysical survey be conducted to determine whether any
underground storage tanks were present. Gordon decided not to
further investigate the matter, and Marina Bay Development Group,
LLC ("MBDG"), a Gordon entity not a party to this appeal, purchased
the twelve-acre parcel on October 30, 1997, pursuant to a quitclaim
deed which provided that the property was being transferred: "AS
IS, WHERE IS, and WITH ALL FAULTS."4
MBDG then subdivided the twelve-acre parcel into three
lots (one of which is Lot 50), and, in December 1997, transferred
Lot 50 to Appellant Marina Bay.5 After the transfer, Marina Bay
engaged an environmental consulting firm to conduct an
environmental investigation. Their work detected elevated levels
of petroleum hydrocarbons in the soil.
A second environmental consulting firm conducted further
investigation, and located a corroded 3,000 gallon underground
storage tank and an intact 350-plus gallon underground storage tank
containing No. 2 fuel oil/diesel fuel. Marina Bay had the second
firm remove the two underground tanks and excavate the contaminated
4
We do not address the implications of the language contained
in the deeds from the United States to Boston Edison and from
Boston Edison to MBDG on the liability of the United States as that
discussion is not necessary to our resolution of the appeal.
5
The remaining two lots were sold to unrelated entities and
are not involved in this appeal.
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soil around the corroded tank. The clean-up of the site was
completed on December 30, 1998.
During the time between the first environmental firm's
detection of the contamination, and the second firm's removal of
the contamination, problems arose with Marina Bay's efforts to
secure financing for the construction of a nursing home on Lot 50
largely as the result of the property being located on a 100-year
flood plain. Apparently frustrated with the financing problems,
Gordon decided to sell Lot 50.
On September 22, 1999, Appellant Marina Bay sold Lot 50
to Alliance and, as part of the transaction, Appellant Neponset
agreed to transfer to Alliance its nursing home business. Alliance
also paid Marina Bay $655,748 for pre-development expenses and
agreed to pay Appellant Gordon Development $500,000 to supervise
and oversee the construction of a nursing home on Lot 50 for
Alliance. A nursing home was then constructed on Lot 50.
On August 11, 2000, Appellants Marina Bay and Neponset
brought this action against the United States in the United States
District Court for the District of Massachusetts seeking recovery
of approximately $310,000 in cleanup costs and $2.2 million for
what it claimed to be increased construction and finance costs
associated with the delay experienced as a result of the
contamination discovered on the site. The Appellants raised four
claims in their complaint: Counts I and II alleged that the United
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States was liable for costs under Massachusetts General Laws
Chapter 21E ("Chapter 21E"), Sections 5(a)(5) and 5(a)(2),
implicitly claiming that the United States had waived its sovereign
immunity for such liability under Section 6001(a) of the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6961(a); Count
III alleged that the United States was liable for Appellants' costs
under Chapter 21E, claiming that the United States had waived its
sovereign immunity for such liability under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680; and Count IV alleged
a common law negligence claim, implicitly asserted through the
FTCA.
The United States filed a motion to dismiss, arguing that
neither the RCRA nor the FTCA waived its sovereign immunity for
private money damages arising from the alleged past contamination.
The United States also argued that liability for the FTCA claims
contained in Counts III and IV were barred by the discretionary
function and misrepresentation exceptions of the FTCA.6 On July 5,
2001, the district court granted the United States' motion in part,
dismissing Counts I and II, finding that the RCRA did not waive the
United States' sovereign immunity from suit for private money
damages. The district court denied the United States' motion as to
Counts III and IV, finding that the United States would not enjoy
6
Because of our ultimate resolution of the case, we do not
discuss the discretionary function and misrepresentation exceptions
to the FTCA.
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sovereign immunity if the Plaintiffs proved, as they alleged in
their complaint, that the United States was negligent or wrongful
in its contamination of Lot 50, and that the discretionary function
and misrepresentation exceptions contained in the FTCA did not bar
the Plaintiffs' FTCA-based claims.
At the close of discovery, the United States filed a
motion for summary judgment on Plaintiffs' claims for consequential
damages, that is, the claims alleging that the United States was
liable for increased construction and financing costs, arguing that
the Plaintiffs had not incurred any such costs.7 The court granted
the United States' motion for summary judgment just prior to the
commencement of trial.
Trial then commenced on Plaintiffs' two FTCA claims,
Counts III and IV, now seeking recovery only for Plaintiffs' actual
clean-up costs. On the fifth day of trial, Plaintiffs rested their
case-in-chief with the exception of one witness--an expert witness
named Dr. Rogers--because that witness was unavailable. The United
States filed a motion for judgment on partial findings pursuant to
Federal Rule of Civil Procedure 52(c), arguing that the FTCA only
7
In response to the United States' motion, Plaintiffs asserted
that another entity, Gordon Development, had actually incurred the
increased construction and financing costs, and moved to add Gordon
Development as a plaintiff. The court granted Plaintiffs' motion,
and the United States subsequently renewed its motion for summary
judgment as to all Plaintiffs, including Gordon Development,
arguing that Gordon Development could not prove that it incurred
such costs.
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waives sovereign immunity for negligent or wrongful conduct by a
federal employee--a fact that the United States argued the
Plaintiffs had failed to prove, could not prove with the testimony
of Dr. Rogers, and could not establish through Chapter 21E's
"causation" requirement. As a result of scheduling conflicts, the
court adjourned the trial and took the government's motion under
advisement. On May 27, 2004, the district court granted the United
States' motion and entered judgment for the United States stating
that the Plaintiffs "appear to concede that they have not proven
negligence" and finding that "[w]here . . . there has been no
showing of negligence or other tortious conduct," the FTCA does not
waive sovereign immunity for a violation of Chapter 21E. The
Plaintiffs filed this timely appeal.
II. ANALYSIS
Plaintiffs-Appellants claim that the United States is
liable under Chapter 21E, Section 5, and common law negligence,
for Appellants' costs associated with the oil contamination. The
United States, however, enjoys sovereign immunity from such a suit
absent a waiver that must be "unequivocally expressed in statutory
text." Lane v. Pena, 518 U.S. 187, 192 (1996). A waiver will not
be implied, and a waiver of the government's sovereign immunity
"will be strictly construed, in terms of its scope, in favor of the
sovereign." Id. Thus, "[t]o sustain a claim that the [United
States] is liable for awards of monetary damages, the waiver of
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sovereign immunity must extend unambiguously to such monetary
claims." Id. And, "[a] statute's legislative history cannot
supply a waiver that does not appear clearly in any statutory
text." Id.
Here, the Appellants argue that two statutory provisions,
one contained in the RCRA, and the other contained in the FTCA, do
waive the United States' sovereign immunity and thus the United
States can be held liable for the costs allegedly incurred by
Appellants as a result of the United States' past contamination of
Lot 50. Finding that neither provision unequivocally expresses a
statutory waiver as required by Lane, we affirm.
A. RCRA
Appellants first contend that they can recover against
the United States for its violations of Chapter 21E because RCRA
Section 6001(a)(1) contains a waiver of the United States'
sovereign immunity from liability for private monetary damages
and/or because compliance with Chapter 21E is a "requirement" under
Massachusetts state law. The district court found that the RCRA
contained no such waiver, and dismissed Appellants' RCRA claims for
lack of subject matter jurisdiction. We review the dismissal de
novo. Aroostook Band of Micmacs v. Ryan, No. 04-1517, 2005 WL
845191, at *6 (1st Cir. Apr. 13, 2005).
Our inquiry begins (and ends in accordance with Lane)
with the statutory text. The text of RCRA Section 6001(a), 42
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U.S.C. § 6961(a), provides, in relevant part, that the United
States government:
shall be subject to, and comply with, all Federal, State,
interstate, and local requirements, both substantive and
procedural (including any requirement for permits or
reporting or any provisions for injunctive relief and
such sanctions as may be imposed by a court to enforce
such relief), respecting control and abatement of solid
waste or hazardous waste disposal and management in the
same manner, and to the same extent, as any person is
subject to such requirements, including the payment of
reasonable service charges. The Federal, State,
interstate and local substantive and procedural
requirements . . . include, but are not limited to, all
administrative orders and all civil and administrative
penalties and fines, regardless of whether such penalties
or fines are punitive or coercive in nature or are
imposed for isolated, intermittent, or continuing
violations. The United States hereby expressly waives
any immunity otherwise applicable to the United States
with respect to any such substantive or procedural
requirement (including, but not limited to, any
injunctive relief, administrative order or civil or
administrative penalty or fine referred to in the
preceding sentence, or reasonable service charge).
In our review of the statutory language, we first note
the obvious: there is no express waiver of immunity for private
suits seeking monetary damages. And, "a clear focus on the precise
statutory language--'requirements . . . respecting control and
abatement' including 'all administrative orders and all civil
administrative penalties and fines'--does not plainly encompass
response costs and thus does not evidence an unambiguous waiver of
sovereign immunity to private suits for reimbursement of response
costs. . . . At most, there is an ambiguity [in § 6961(a)]
regarding a waiver, and such an ambiguity must be construed in
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favor of immunity." McClellan Highway Corp. v. United States, 95
F. Supp. 2d 1, 16, 17 (D. Mass. 2000).8 The district court was
correct to find that the RCRA did not waive the United States'
sovereign immunity in this case.9
B. FTCA
The Appellants also bring two claims under the FTCA: the
first alleges a violation of Chapter 21E and the second alleges
that the United States was negligent under common law principles.
Just as with the RCRA claims, Appellants must point to an
8
Appellants argue that the 1992 amendments to the RCRA waiver
section expanded the United States' liability to cover the type of
claims at issue here, that is, private suits for monetary damages
associated with the cleanup of past contamination. We disagree.
Although the amendments did further explain the requirements to
which the United States is subject without immunity, these
"requirements" are only those "respecting control and abatement of
solid waste or hazardous waste disposal and management." Although
the amendments do include a statement that these "requirements"
include "any such substantive or procedural requirement (including
but not limited to, any injunctive relief, administrative order or
civil or administrative penalty or fine)," nowhere does the
original or amended language provide the unambiguous waiver with
respect to monetary damages as explicitly required by Lane. See
518 U.S. at 192 ("To sustain a claim that the [United States] is
liable for awards of monetary damages, the waiver of sovereign
immunity must extend unambiguously to such monetary claims.").
And, private monetary damages are not similar enough to "any
injunctive relief, administrative order or civil or administrative
penalty or fine" to be covered by the "including but not limited
to" language in the statute.
9
We note that in light of our conclusion that the RCRA does
not waive sovereign immunity from private suits for money damages
seeking reimbursement for cleanup costs, we do not address the
United States' argument that the RCRA waiver of sovereign immunity
is only for current and prospective acts of contamination, and does
not apply to past acts of contamination.
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unequivocal waiver of the United States' sovereign immunity in the
text of the FTCA.
In our review of a judgment on partial findings, entered
pursuant to Federal Rule of Civil Procedure 52(c), "we evaluate the
district court's conclusions of law de novo, and typically examine
the district court's underlying findings of fact for clear error."
Mullin v. Town of Fairhaven, 284 F.3d 31, 36-37 (1st Cir. 2002)
(internal citations omitted).
We now turn to the statutory text of the FTCA to see if
that statute contains an unequivocal waiver of the United States'
sovereign immunity for the damages sought in this case. The text
of the FTCA provides, in relevant part, that the United States has
waived sovereign immunity
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, under circumstances where the United
States, 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 provision is more promising for the
Appellants as it expressly waives sovereign immunity for private
suits seeking money damages--but, it does contain an important
limitation: the damages must arise from the "negligent or wrongful
act or omission" of a United States employee. Id. This means that
the United States cannot be held liable under the FTCA without a
showing of fault. In order to satisfy this "fault" requirement,
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Appellants argue that a violation of Chapter 21E, on its own, is
sufficient to establish "negligent or wrongful" conduct because it
requires a showing that the offending party caused the
contamination.
Chapter 21E states that "any person10 who otherwise caused
or is legally responsible for a release or threat of release of oil
or hazardous material from a . . . site, shall be liable, without
regard to fault." Chapter 21E § 5(a)(5).11 Although the "without
regard to fault" language suggests that the statute imposes strict
liability, the Supreme Judicial Court of Massachusetts has held
that the causation requirement of Chapter 21E, Section 5(a)(5)
requires showing of more than mere ownership. See Griffith v. N.
Eng. Tel. & Tel. Co., 649 N.E.2d 766, 769 (Mass. 1995). Contrary
to Appellants' contention, however, this does not mean that any
violation of Chapter 21E is "negligent or wrongful" for purposes of
the FTCA--it simply means that a prior owner cannot be held liable
10
It is uncontested that the United States is a "person" for
present purposes.
11
Appellants also brought a claim under Section 5(a)(2) of
Chapter 21E, which imposes liability on "any person who at the time
of storage or disposal of any hazardous material owned or operated
any site at or upon which such hazardous material was stored or
disposed of and from which there is or has been a release or threat
of release of hazardous material." The Appellants appear only to
discuss their claim on appeal under Section 5(a)(5), so we do not
address the applicability of Section 5(a)(2), which does not
explicitly cover oil contamination. See, e.g., Smilow v.
Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 43 (1st Cir.
2003) ("Issues raised on appeal in a perfunctory manner (or not at
all) are waived.").
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absent a showing that the prior owner caused the contamination.
The plaintiff need not show that the prior owner was negligent or
wrongful in doing so.
Appellants argue that the district court's grant of
partial judgment was untimely because Dr. Rogers was going to
testify that the United States "caused" the contamination. Even if
we were to assume that the testimony of Dr. Rogers was sufficient
to establish that the United States "caused" the contamination by
installing tanks that likely corroded in three years, the
Appellants have not shown how his testimony would establish that
the United States was "negligent or wrongful." His proposed
testimony would have established causation, not that the United
States was "negligent or wrongful" in installing the tanks back in
the 1940s.12
III. CONCLUSION
For the above-mentioned reasons, the district court's
order of dismissal of the RCRA claims and entry of judgment on
12
Although Dr. Rogers testified in his deposition that "in the
forties and fifties, the tank manufacturers and installers should
"very definitely" "have known" about the problems that could arise
from similar installations, he also testified that he "doubt[ed]
very much" that the Navy would have known the tank would fail as it
did. He also testified that thought that other entities "using or
purchasing tanks" would "most probably not" have known about such
a problem. Thus, even if Dr. Rogers were to testify to this effect
at trial, this would not establish that the United States knew or
should have known that the installation could cause a future
problem.
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partial findings for the United States on the FTCA claims are
AFFIRMED.
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