author: AGUILAR, District Judge.

text:
    PINOLE POINT PROPERTIES, INC., a California Corporation, Plaintiff, v. BETHLEHEM STEEL CORPORATION, a Delaware Corporation, Defendant.
    No. C-83-5893-RPA.
    United States District Court, N.D. California.
    Oct. 22, 1984.

      Steven N. Roberts, Nossaman, Gutchner, Knox & Elliott, San Francisco, Cal., for plaintiff.
    Gary H. Anderson, Patrick L. Finley, Pillsbury, Madison & Sutro, San Francisco, Cal., for defendant.
   OPINION AND ORDER

AGUILAR, District Judge.

This is one of the earliest cases in which a federal district court has been called upon to interpret the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”). On the present motion, the Court must determine the extent, if any, to which CERCLA provides for a private cause of action. More specifically, the Court must determine whether the Act contemplates recovery for private clean-up activities that are undertaken at a hazardous waste disposal site in the absence of any governmental action with respect to the particular site.

FACTS:

Plaintiff, Pinole Point Properties, is a subsidiary of a small, local steel concern called Pinole Point Steel Company. On or about February 20,1979, Pinole Point Steel Company purchased a tract of land from defendant Bethlehem Steel Corporation. On or about December 17, 1979, the tract of land was transferred from Pinole Point Steel Company to plaintiff, Pinole Point Properties. Plaintiff still owns the land today.

There is a pond located on the land in question. Plaintiff alleges that from 1965 to 1975 defendant released hazardous substances into the pond. More specifically, plaintiff alleges that the defendant used the pond as a “facility” within the meaning of section 107(a) of CERCLA, 42 U.S.C. § 9607(a). Plaintiff has commenced cleanup operations at the pond.

In this lawsuit, plaintiff seeks a declaratory judgment that defendant will be liable for plaintiffs past, present and future clean-up costs. In addition to seeking recovery under CERCLA, plaintiff also alleges state causes of action under theories of nuisance and ultrahazardous activity.

Defendant moves to dismiss plaintiffs entire complaint for failure to state a claim upon which relief may be based. Fed.R. Civ.P. 12(b)(6). Defendant maintains that plaintiff cannot bring this action under CERCLA for a variety of reasons including: (1) CERCLA does not apply to disposal sites that the government has not acted upon or regulated; (2) plaintiff lacks standing to sue under CERCLA; (3) plaintiffs CERCLA claims are not ripe for adjudication; and (4) CERCLA precludes private claims for damages to natural resources. Defendant also argues that plaintiffs state law claims do not set forth proper causes of action and are barred by the statute of limitations in any event. Plaintiff opposes the motion to dismiss in all respects.

FEDERAL CLAIMS

Defendant’s motion to dismiss plaintiff’s CERCLA claims, and plaintiff’s opposition to the motion, reflect fundamentally opposed views of the purpose of the Comprehensive Environmental Response, Compensation and Liability Act. Essentially, defendant reads the Act as giving the government the authority to respond to the problem of hazardous waste disposal sites. Defendant contends that the Act provides for a single response to the problem of hazardous waste disposal sites, and that the response contemplated is governmental or at least government triggered. In this sense, defendant gives the Act a narrow construction.

Plaintiff, on the other hand, views the Act as a comprehensive response to the hazardous waste disposal problem. Plaintiff maintains that CERCLA provides for a variety of public and private responses to the hazardous waste disposal site problem. Plaintiff argues that the Act contains independent and severable provisions for certain governmental actions, certain private actions, and for recovery from the so-called Superfund under some circumstances. Plaintiff therefore interprets the Act broadly as permitting and even encouraging private initiative in eradicating hazardous waste sites.

The differing views of the general intent of the Act underlie the parties’ positions on the motion to dismiss. In determining this motion, then, the Court will be required to take a position on the scope of the Act. Thus, it is appropriate for the court to begin its discussion with an overview of CERCLA.

Overview of CERCLA:

Congress enacted CERCLA on December 11, 1980. The major provisions of the Act are set forth below.

Section 101 of the Act contains the definitions that relate to the Act. The next section, section 102, bestows upon the Administrator of the Environmental Protection Agency (EPA) the authority and obligation to promulgate regulations designating what will be considered a hazardous substance and what level of release must be reported. Section 103 contains the requirements with respect to reporting the existence of a release of hazardous substances.

Section 104 establishes the parameters and procedures of the governmental response to the hazardous waste disposal site problem. Among other things, section 104 gives the President the authority to act in response to the release of hazardous substances. It also puts certain limits on expenditures from the fund created by the Act, and it provides for cooperation between the federal government and state and local governmental authorities.

Section 105 requires that the President prepare a National Contingency Plan (NCP) for the removal of hazardous substances and calls for EPA to devise a comprehensive scheme for addressing the problem of hazardous waste disposal sites. Further, section 105 directs EPA to establish priorities and to reflect those priorities in a national list of priority clean-up sites. (The parties refer to this list as the National Priorities List or NPL.)

Section 106 provides for abatement actions brought by the government in cases involving an imminent and substantial endangerment to public health and welfare. Under section 106, the President may ask the Attorney General to “secure such relief as may be necessary to abate such danger.” The EPA is also directed to establish guidelines for the application and use of the procedure in section 106.

Section 107, which is a major focus of the instant motion to dismiss, is the section that assigns liability for the release of hazardous wastes. The reach of the liability is extremely broad. The parties that are liable include owners of vessels, owners of the site at the time of dumping, present owners of the site, anyone who by contract or agreement arranged for the disposal or transport of hazardous wastes to the site, and any person who accepted hazardous wastes for disposal at the site. Under section 107(a), the liable parties are responsible for: (1) all costs of removal incurred by the federal or state governments not inconsistent with the National Contingency Plan (NCP); (2) any other response costs incurred by any other person consistent with the NCP; and (3) damages for injury to or loss of natural resources.

Section 107(b) contains the defenses to liability. The defenses are extremely limited, including only acts of God, acts of war, and acts of an unconnected third party if the liable party can show it exercised due care and took reasonable precautions against foreseeable acts by the third parties.

The remainder of section 107 concerns determinations of the amount of damages that can be recovered from liable parties.

Section 108 provides that parties who are engaged in transporting hazardous waste materials must produce a bond insuring their financial responsibility for any damages that may occur. Section 109 provides civil penalties against any parties who do not comply with the requirements of section 108.

Section 110 protects employees who report the existence of a hazardous waste disposal site. This section is essentially a “whistleblower” protection provision. Whistleblowers are protected from adverse employment actions that may arise from their reporting.

Sections 111 and 112 control the use of the so called “Superfund.” Section 111 spells out the authorized uses of the $1.6 billion in the fund. Section 112 establishes the procedures for making claims against the fund.

To date, only a few courts have had occasion to interpret the provisions of CERCLA. Thus, the Court does not have much case authority upon which to rely. Furthermore, the Act’s legislative history is not very helpful. The Act passed after a major floor fight in the Senate. Major amendments were proposed and adopted on the floor, and the Court is therefore left without the ordinary sources of legislative history.

In general, the courts that have interpreted CERCLA have given it a broad reading. Judge Magnuson of the federal district court in Minnesota said:

A review of the statute and the Committee Reports reveals at least two Congressional concerns that survived the final amendments to the Act. First, Congress intended that the federal government be immediately given the tools necessary for prompt and effective response to problems of national magnitude resulting from hazardous waste disposal. Second, Congress intended that those responsible for problems caused by the disposal of chemical poisons bear the cost and responsibility for remedying the harmful conditions they created.

United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100 (D.Minn.1982).

Based on this reading of Congressional intent, Judge Magnuson concluded that “CERCLA should be given a broad and liberal construction. The statute should not be narrowly interpreted to frustrate the government’s ability to respond promptly and effectively, or to limit the ability of those responsible for cleanup costs beyond the limits expressly provided.” Reilly Tar, 546 F.Supp. at 1112. Similarly, in United States v. Wade, Judge Newcomer of the Eastern District of Pennsylvania gave the Act a broad reading at every opportunity. 577 F.Supp. 1326 (E.D.Pa.1983). Thus, although the precedent is thin, the courts that have addressed the question of the scope of CERCLA have erred on the side of giving a broad reading to the Act.

With these prefatory comments set forth, the Court turns to a consideration of the specific grounds for dismissal stated in defendant’s motion.

1. Does CERCLA apply to hazardous waste disposal sites that are not on the National Priorities List (NPL) and are not otherwise regulated by the federal government?

Plaintiff concedes that the land in question does not appear on the National Priorities List (NPL). In fact, the federal government has not regulated this land in any respect. Further, the federal government has not approved or certified the clean-up activities that plaintiff has undertaken or plans to undertake in the future. Defendant argues that because there has been no governmental action whatsoever with respect to plaintiff’s land, plaintiff cannot state a cause of action under CERCLA.

Plaintiff seeks recovery under section 107(a)(4)(B) of the Act. The relevant portion of section 107(a) provides that “[n]otwithstanding any other provision or rule of law and subject only to the defenses set forth in subsection (b) of this section,” the present owner of a facility, the owner at the time of the hazardous waste release, and other specified parties shall be liable for

(4)(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the [NCP]; (B) any other necessary costs of response incurred by any other person consistent with the [NCP]; and (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.

Defendant argues that section 107 does not authorize a private right of action. Rather, defendant maintains that section 107 merely establishes liability for purposes of sections 111 and 112, which govern use of the Superfund. Under section 112(a), a claimant against the Superfund must first present its claim to any party that might be liable under section 107. If that claim is not satisfied, the claimant may bring an action directly against the responsible party or may make a claim against the Superfund. Payments from the Superfund are limited to “necessary response costs incurred by [any party other than the government] as a result of carrying out the National Contingency Plan, provided, however, that such costs must be approved under said [National Contingency] Plan and certified by the responsible federal official.” 42 U.S.C. § 9611(a)(2). Based on this language, defendant contends that CERCLA envisions governmental action as a condition precedent to any and all private liability.

The Court is not swayed by defendant’s interpretation of the statutory language. The Court finds that section 107 and sections 111 and 112 provide causes of action that are distinct and independent. Close attention to the statutory language reveals the correctness of this view.

First of all, the opening clause of section 107 lends itself to broad interpretation. The opening clause states a severe limitation on defenses available in cases under section 107: “Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section..This limitation on defenses surely suggests the existence of a basis for liability separate and independent from liability under sections 111 and 112.

Second, the language of section 107(a)(4)(B) is extremely broad and inclusive. That section states that “[a]ny person who ... owned or operated any facility at which such hazardous substances were disposed of ... shall be liable for any other necessary costs of response incurred by any other person consistent with the National Contingency Plan.” 42 U.S.C. § 9607(a)(4)(B) (emphasis added). It is difficult for the Court to imagine statutory language that would more clearly grant a private cause of action.

Third, defendant’s attempt to join sections 107 to sections 111 and 112 does not make sense. Section 112 requires that a person claiming against the Superfund first obtain federal approval of its response costs under the National Contingency Plan. This requirement makes perfect sense in light of the limited availability of federal funds. The requirement does not, however, make sense when applied to causes of action that do not involve the government. This, too, indicates that section 107 should be read as creating a cause of action independent from that created in sections 111 and 112.

Further support of the separateness of the sections is evidenced by the language of section 108(e) which provides that “any claim authorized by section 9607 or 9611 of this title may be asserted against any guarantor ...” 42 U.S.C. § 9608(c) (emphasis added).

Finally, the relevant case law supports the Court’s conclusion that section 107 creates an independent basis for recovery. In U.S. v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100 (D.Minn.1982), Judge Magnuson addressed this point directly. Defendant, Reilly Tar, sought to limit liability under section 107 to those costs for which expenditures could be made from the Superfund. Reilly Tar argued that all claims, whether against the government or a private party, must be assertable against the fund under section 111 or are not compensable. Judge Magnuson concluded that “Reilly Tar’s complex analysis of the Act is incorrect. Most importantly, Reilly Tar errs in attempting to link liability under section 107 to authorized uses of the Fund provided in section 111. Liability under section 107(a) is independent of the authorized uses of the Fund under section 111 ____” Reilly Tar, 546 F.Supp. at 1114.

From reading the language of section 107, Judge Magnuson found that the section “was meant to stand by itself; liability under it can be determined without the numerous inquiries suggested by the defendant ____ Liability for the specified response costs under section 107(a) is absolute, subject only to the defenses listed in section 107(b) -...” Id. Finally, Judge Magnuson concluded that because “[tjhere is no claim before the court seeking recovery from the Fund ... [t]he authorized uses of the Fund provided by section 111 are ... not relevant to this action.” Id.

Judge Magnuson’s decision in Reilly Tar is directly applicable to the instant case and strongly supports this Court’s analysis. Chief Judge Clark of the Western District of Missouri reached the same conclusion in United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823 (W.D.Mo.1984). Chief Judge Clark found “[t]he fact there is not a claim before this Court seeking recovery on behalf of the fund does not bar recovery by the plaintiff. An action brought pursuant to section 107(a) [is] independent and separate of the provisions authorizing use of the Superfund.” Both Reilly Tar and Northeastern Pharmaceutical involve actions brought by the federal government. However, courts faced with private litigants have reached the same conclusion. See e.g. Jones v. Inmont Corp., 584 F.Supp. 1425, 1428 (S.D.Ohio 1984); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1142 n. 9 (E.D.Pa.1982).

Thus, based on the language of the statute and the prior court decisions interpreting that language, this Court concludes that section 107 does provide for a private cause of action and a basis of liability that is separate and distinct from the liability created in sections 111 and 112.

Defendant’s other argument about section 107 is that the language requiring that recoverable costs be “consistent with the National Contingency Plan” is exactly the same as the requirement in section 111(a) that costs recoverable from the fund be incurred “as a result of carrying out the National Contingency Plan.” In this manner, defendant attempts to convince the Court that plaintiff’s costs cannot be “necessary” or “consistent with the National Contingency Plan” because plaintiff did not incur its costs at EPA’s direction. Defendant also points out that the National Contingency Plan provides for remedial responses only at sites listed on the National Priorities List and only after analysis and evaluation by the EPA. See 40 C.F.R. §§ 300.68(a) and 300.68(f) — (i). Two recent decisions of California district courts provide support for defendant’s argument. See Wickland Oil Terminals v. ASARCO, Inc., 590 F.Supp. 72 (N.D.Cal., 1984); Cadillac-Fairview/California, Inc. v. Dow Chemical Co., CY-83-7996/CY-83-8034 (C.D.Cal. Mar. 5, 1984).

Once again, the Court must disagree with defendant’s interpretation of the Act. First, assuming the correctness of defendant’s equation of “consistency with” the NCP under section 107(a)(4)(B) and “carrying out” the NCP under section 111(a)(2), the second clause of the latter provision contains an additional requirement for Superfund claims: “Provided, however, that such costs must be approved under said plan and certified by the responsible federal official.”

If “consistency with” the NCP included government approval and/or certification, the second clause of § 9611(a)(2) would be unnecessary, and statutes should be read to avoid surplusage. See Petro Marketing Group, Inc. v. Commodity Futures Trading Comm., 680 F.2d 566, 569-70 (9th Cir. 1982). Consistency with the NCP and government pre-authorization are thus distinct requirements, only the first of which must be satisfied for recovery under section 107(a)(4)(B).

Second, the Court’s interpretation is supported by the provisions of the NCP itself. The Preamble to the Plan notes that confusion had been generated by 40 C.F.R. §§ 300.25(d)-(f) of the proposed draft as to whether those sections prohibited remedial action without prior EPA approval:

[Section 300.25(d) ] has been rewritten to require that persons who intend to undertake response actions and seek reimbursement from the Fund, must obtain pre-authorization in order for the response action to be considered consistent with the Plan for purposes of section [9611(a)(2)] of CERCLA.... Section 300.25(d) does not apply to private parties who undertake response actions, but do not intend to seek reimbursement from the Fund.

44 Fed.Reg. 31180, 31196 (July 16, 1982) (emphasis added).

The underlined language makes clear that consistency with the NCP for purposes of a private action under . section 107(a)(4)(B) does not require federal pre-authorization or supervision.

Moreover, the limitation in 40 C.F.R. § 300.68(a) of remedial actions to inclusion on the NPL applies only for purposes of response financed by the Superfund. The priority list serves to allocate scarce government resources, a purpose not served by curtailing the remedial actions undertaken by private persons who later seek to recover from those responsible for the release of the hazardous waste disposal. Thus, consistency with the National Contingency Plan, not pre-authorization or appearance on the National Priorities List, is all that is required under section 107(a)(4)(B).

In Stepan Chemical, the court refused to dismiss plaintiff’s action under section 107. The Stepan Chemical court rejected the same argument that defendant here proposes — that private actions cannot be consistent with the National Contingency Plan unless the federal government has taken some action in connection with the disposal site in question. The court found that the legislative history of CERCLA “indicates that the National Contingency Plan was regarded as a means of assuring that responses under the act would be both cost-effective and environmentally sound.” 544 F.Supp. at 1144 n. 16.

By its ruling here, the Court does not mean to suggest that it has concluded that plaintiff’s clean-up activities are consistent with the NCP. As other courts have recognized, the party seeking to recover its costs must bear the burden of pleading and proving consistency with the National Contingency Plan. See e.g., Northeastern Pharmaceutical, 579 F.Supp. at 850-51. However, the question of consistency is a factual determination that turns on the efficacy and cost-effectiveness of clean-up action. This factual determination cannot be made on the basis of the pleadings but must await development of a factual record. Stepan Chemical, 544 F.Supp. at 1144. Thus, at this time the Court expresses no opinion about the ultimate question of whether plaintiff’s response was consistent with the National Contingency Plan.

•2. Does plaintiff have standing to seek recovery of costs under Section 107?

As the present owner of a hazardous waste disposal site, plaintiff itself is potentially a liable party under section 107(a). Defendant claims that as a potentially liable party, plaintiff has no standing to sue under section 107(a)(4)(B). Defendant argues that allowing a liable party to sue under section 107 would inevitably lead to absurd results. For instance, defendant asserts that section 112(a) would require a liable party to present a claim against itself. Also, defendant suggests that if a liable party could claim against the fund, then the government would be entitled under section 112(e)(1) to subrogation to recover the dispersed funds from the claimant, resulting in a merry-go-round of litigation.

Defendant’s argument must fail. The provisions upon which defendant relies concern claims against the Superfund under sections 111 and 112. As the Court determined earlier in this Opinion, there is a separate and independent cause of action under section 107. Because of the Court’s earlier determination, the parade of horribles suggested by defendant cannot and will not occur where an allegedly liable party seeks to recover from another liable party, rather than from the Superfund.

Further, in Stepan Chemical, the only case directly on point, the court rejected the very argument advanced by defendant here. The court found the defendant’s argument nonsensical inasmuch as it would preclude recovery by non-culpable persons who incur cleanup costs. 544 F.Supp. at 1142. The Stepan Chemical court correctly noted that the phrase “any other person” in § 9607(a)(4)(B) refers to persons other than the state and federal government rather than to persons other than those liable under the Act. Id. Finding that liability would advance the statutory purpose of facilitating prompt clean up of hazardous waste dumpsites, the court concluded that

[plaintiff) has undertaken to clean up the ensuing damage and now seeks to recover its response costs from parties which were allegedly involved in the illegal dumping and which are made expressly liable for response costs. I cannot conclude that [plaintiff’s] right to maintain this action is barred by the hypothetical possibility that had the federal or state government brought this suit, [plaintiff] too would be liable.

544 F.Supp. at 1143. But see D’Imperio v. United States, 575 F.Supp. 248, 253 (D.N.J. 1983).

In accordance with the Stepan Chemical decision, this court finds that plaintiff does have standing to state a claim for relief under section 107.

3. Is plaintiffs claim for declaratory relief against defendant under CERCLA ripe for adjudication?

Defendant argues that Plaintiff’s action is not ripe because of lack of governmental action with respect to the disposal site in question. Defendant relies heavily on the decision in D’Imperio v. United States, 575 F.Supp. 248 (D.N.J.1983). In D’Imperio, the court dismissed as premature a complaint seeking declaratory relief. The instant case, however is readily distinguished from D’Imperio.

In D’Imperio, plaintiff sought declaratory relief against the government. The EPA had begun the early steps toward designating the D’lmperio site as a hazardous waste disposal site. The administrative decision-making process was, however, only in the preliminary stages. The EPA had not taken any final or irrevocable actions. DTmperio sought a declaratory judgment stating that it was not liable to the EPA or the Superfund. The court dismissed plaintiff’s claim because the government action was still too hypothetical.

In this case, in contrast, plaintiff has already conducted considerable clean up activities. Plaintiff has alleged that it will continue these clean up operations. Plaintiff seeks a declaration that defendant will be liable for at least some of the costs of these operations.

In cases in which either the government or a private party has expended response costs, courts have not hesitated to grant declaratory relief. In Ohio ex rel. Brown v. Georgeoff 562 F.Supp. 1300 (N.D.Ohio 1983), for example, the Court granted declaratory relief under § 9607(a)(4)(A) to the plaintiff State that had already expended $875,000. The court held defendant liable for response costs not yet incurred. The court found plaintiff’s claim was “a real controversy between parties having adverse legal interests of such immediacy and reality as to warrant a declaratory judgment,” 562 F.Supp. at 1316, see also U.S. v. Wade, 577 F.Supp. at 1335 (government may sue under section 107(a)(4)(A) for future costs to “better effectuate the purposes of the Act”). Relying on the Brown and Wade decisions discussed earlier, the court in Jones v. Inmont recently refused to dismiss a private plaintiff’s claim for declaratory relief as to future response costs under section 107(a)(4)(A). The Jones court said:

To require either the government or a private party to complete cleanup prior to filing suit would defeat the dual purposes of CERCLA to promote rapid response to hazardous situations and to place the financial burden on the responsible parties. Therefore, as the plaintiff’s complaint does allege that they have already incurred some portion of the response costs necessary to clean up the site, the controversy is sufficiently real to allow the Court to determine defendant’s liability for future costs.

Jones v. Inmont Corp., 584 F.Supp. 1425 at 1430 (S.D.Ohio 1984).

Jones’ reasoning is persuasive here. Plaintiff has already expended funds for investigation and cleanup. The contours of plaintiff’s controversy with Bethlehem with regard to future costs are defined clearly enough to render appropriate a determination of future liability.

For the reasons stated above, the Court hereby denies in its entirety defendant’s motion to dismiss plaintiff’s claim under CERCLA.

STATE CLAIMS

The plaintiff’s complaint also contains state law claims of nuisance and ultrahazardous activity. Both claims are barred by the statute of limitations and must, therefore, be dismissed.

Under California law, actions for injury to real property must be brought within three years after the cause of action accrues. Cal.Code Civ.Proe. § 338(2). The cause of action accrues on the date that the plaintiff knows, or reasonably should know that an injury occurred. Dujardin v. Ventura County General Hospital, 69 Cal.App.3d 350, 138 Cal.Rptr. 20 (1977). Furthermore, if discovery of the injury is delayed, the complaint must allege, “facts which show that the failure to make an earlier discovery was reasonable, justifiable and not a result of plaintiffs failure to investigate or act.” Id., 69 Cal.App.3d at 356, 138 Cal.Rptr. 20.

The plaintiff alleges that Bethlehem released toxic substances on the property until 1975. Plaintiff bought the land in 1979 and this lawsuit was filed in December 1983. From the face of the complaint, it appears that the release of pollutants ceased approximately four yeárs before the plaintiff bought the property. The plaintiff owned the land for at least four years before this suit was filed. Plaintiff has alleged no facts that demonstrate that it did not know of the state of the property at the time of the purchase; nor does the plaintiff allege that the discovery of injury to the property was delayed and that this delay was justified. Because these allegations do not appear on the face of the complaint, and because over three years passed between the date that the plaintiff acquired the property and the date that plaintiff filed this action, the Court finds that plaintiffs state claims are time barred.

The plaintiff argues that the statute of limitations has not run because the nuisance is continuing. Therefore, the plaintiff contends that it is entitled to bring successive actions for damages until the nuisance is abated. The mere existence of an abatable nuisance, however, does not toll the statute of limitations indefinitely. Rather, each separate invasion of plaintiffs property creates a new cause of action, and a new statute of limitations begins to run. Nestle v. City of Santa Monica, 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480 (1972). In the present case, the plaintiff alleges that the last time Bethlehem disposed of waste in the pond was in 1975. No new invasion of the plaintiffs property rights is alleged to have occurred since then. Therefore, the statute of limitations ran in 1978 and plaintiffs nuisance claim, filed in 1983, is barred by the statute of limitations.

CONCLUSION

Based on the analysis set forth in the body of this Opinion, and for good cause appearing, the Court hereby denies defendant’s motion to dismiss plaintiff’s claims under the Comprehensive Environmental Response, Compensation, and Liability Act. The Court does, however, grant defendant’s motion to dismiss plaintiff’s state law claims.

IT IS SO ORDERED.

      . The statement of the facts is drawn from plaintiffs complaint. The case is before the Court on defendant’s motion to dismiss, and therefore the Court accepts as true the factual allegations set forth in plaintiff s complaint.

      . Moreover, while it is true that section 112(a) permits private parties to choose between suing ' under section 107 or claiming against the fund, nothing in section 112(a) limits section 107’s cause of action to claims that could be asserted against the fund.

      . Defendant’s argument that "claim" in this context refers to a "demand in writing for a sum certain,” but not to a legal action, is without merit. Section 108(c) allows the guarantor to “defend” the claim asserted. Moreover, section 108(d) explicitly provides that “[a]ny guarantor acting in good faith against which claims under this chapter are asserted as a guarantor shall be liable under [section 107] of this title or [section 112(c)] of this title only up to [policy limits].”

      . There is an indication of some concern that the Court's decision will involve courts in determining whether private remedial actions are safe, environmentally sound, and cost-effective. This concern is unwarranted. Courts are clearly capable of assessing a private party’s remedial action to <|etermine consistency with agency guidelines just as courts review agency action to determine compliance with statutes or regulations.

      . Even if the claims were not barred by the statute of limitations, they would likely fail on the merits. Liability for a private nuisance arises upon the invasion of another’s interest in the use and enjoyment of land. 7 Witkin, Summary of California Law, § 91, (8th Ed.1974). At the time that defendant was using the waste disposal pond, defendant owned the pond. Defendant stopped using the pond and then sold the land to the plaintiff. Plaintiff apparently acquired the property with full knowledge of the existence of the waste disposal pond. Plaintiff makes no allegations to the contrary.
      The plaintiff does not allege any facts which would demonstrate that the defendant ever interfered with the property rights of another; only that the defendant disposed of waste on its own land and then sold the land. These allegations would not ordinarily state a claim in nuisance.
      The claim for ultrahazardous activity would likewise fail. Strict liability in Tort is "limited to the kind of harm the possibility of which makes the activity abnormally dangerous.” Restatement 2d, Torts, § 519. The harm alleged by plaintiff here, that is, the cost of cleaning up the pond and diminished property value, is not the type of harm for which strict liability generally attaches.


source: Caselaw Access Project

author: FOREMAN, Chief Judge:

license: Public Domain

text:
    Lionel MARTIN, et al., Plaintiffs, v. GRANITE CITY STEEL CORPORATION, an Illinois corporation, and Granite City Steel Division of National Steel Corporation, Defendants.
    Civ. No. 84-3125.
    United States District Court, S.D. Illinois.
    Oct. 22, 1984.

      Richard Shaikewitz, Wiseman, Shaikewitz, McGiven & Wahl, Alton, 111., for plaintiffs.
    R. Eric Robertson, Lueders, Robertson & Konzen, Granite City, 111., J.F. McKenna, III, and C.R. Babst, III, Thorp, Reed & Armstrong, Pittsburgh, Pa., for defendants.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Plaintiffs filed this action in the Circuit Court, Third Judicial Circuit, Madison County, Illinois, alleging that the defendants, by recycling coal by-products into their coke ovens, intentionally exposed the plaintiffs to toxins and carcinogens. The plaintiffs seek to represent a class of all persons who have worked for the Granite City plant since June of 1982 and all non-employees who have lived within a five mile radius of the plant since June of 1982. The Complaint specifically alleges that some class members have suffered damages less than $10,000 and some have suffered damages in excess of $15,000. In addition, the plaintiffs seek punitive damages, attorney’s fees, and equitable relief in that the defendants be required to provide and pay for complete physical testing and medical attention to all class members, and that the defendants cease the recycling procedure. The defendants removed the case to the United States District Court for the Southern District of Illinois.

The main motion before the Court is plaintiffs’ Petition to Remand. Plaintiffs contend that since some class members’ claims are for less than $10,000, the case cannot be removed. Defendants argue that the prayer for punitive damages, attorney’s fees, and full medical attention bring the claims of these class members over the $10,000 barrier, but that in any event, this Court has jurisdiction over the less than $10,000 claims pursuant to 28 U.S.C. § 1441(c) since these claims are separate and independent.

DISCUSSION

28 U.S.C. § 1441(a) provides that any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendants to the federal district court embracing the place where the state action is pending. Since this is not a federal question ease, the Court would have proper removal jurisdiction if the case met the requirements of a diversity action. Generally, a diversity action requires that there be complete diversity of citizenship between the parties and that the amount in controversy exceeds $10,000. See 28 U.S.C. § 1332. The removing party has the burden of establishing diversity of citizenship together with the requisite jurisdictional amount. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).

There appears to be complete diversity in this case. In a class action, the courts look only to the citizenship of the representative parties. Snyder v. Harris, 394 U.S. 332, 340, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319 (1969). Hence, the named plaintiffs are all residents of Illinois. The two named defendants are Granite City Steel Company and Granite City Steel Division of National Steel Corporation. Granite City. Steel Division is a Delaware corporation with its principal place of business in the State of Pennsylvania. Granite City Steel Company is an Illinois corporation. However, the defendants have moved to drop Granite City Steel Company as a misjoined party stating that it is merely a holding company, and as such is not a necessary, indispensable, or real party in interest. Plaintiffs respond by asking that the motion to drop a misjoined party be denied until such time as the plaintiffs have an opportunity to discover the role of the holding company. In any event, the plaintiffs did not raise the citizenship problem in their Petition to Remand. Further, this Court has already held that Granite City Steel Company (the holding company) has no interest in such a lawsuit. Niemeyer v. Granite City Steel Company, No. 83-3333 (S.D.Ill. Dec. 16, 1982) (order denying motion to remand). Therefore, the defendants’ motion to drop the misjoined party is granted.

The Supreme Court has held that for class actions all class members must meet the amount in controversy requirement when jurisdiction is asserted on the basis of § 1332. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1974). The principle is equally applicable to remand situations. See 1A Moore’s Federal Procedure If 0.157. The defendants do not contest this fact, but rather assert that punitives, attorney’s fees, and the value of equitable relief sought should be included in determining whether the amount in controversy requirement has been met.

With regard to attorney’s fees, they may be included in the jurisdictional sum if they are allowed by statute or provided for by contract. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3712. Additionally, [wjhen the applicable substantive law makes the award of attorney’s fees discretionary, a claim that this discretion should be exercised in favor of the plaintiffs makes the requested fee part of the amount in controversy. Id. One court has held, however, that when the court’s discretion forms the basis for the award of attorney’s fees, the plaintiff must allege a specific amount. Blank v. Preventive Health Programs, Inc., 504 F.Supp. 416 (S.D.Ga.1980). In an event, under Illinois law, there exists no statutory authorization for attorney’s fees nor does the Court have the power to award them. Therefore, attorney’s fees cannot be included in the calculation.

With respect to punitive damages, the Supreme Court has held that they can be included in determining the amount in controversy requirement if under the governing law of the suit they are recoverable. Bell v. Preferred Life Assurance Soc., 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943). Thus, if the plaintiffs can recover punitive damages under Illinois law, the amount of such damages must be included in the calculation. Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310 (7th Cir.1970).

Punitive damages are allowed in Illinois where a defendant has acted wilfully or with such extreme negligence as to indicate reckless disregard for the safety of others. Hazelwood v. Illinois Central Gulf R.R., 114 Ill.App.3d 703, 71 Ill.Dec. 320, 450 N.E.2d 1199 (1983). The plaintiffs in the instant case seek punitive damages because the defendants acted intentionally. Therefore, punitive damages must be taken into account in determining the amount in controversy.

With regard to the equitable relief sought, a valuation of the amount in controversy is a complex task. A court must not only undertake to evaluate intangible rights, but it must decide what rights are involved in the controversy and from whose viewpoint their value is to be measured. McCarty v. Amoco Pipeline Company, 595 F.2d 389 (7th Cir.1979). In McCarty, the Seventh Circuit adopted the “either viewpoint rule” for removal of cases. Under this rule, the test for determining the amount in controversy is the pecuniary result of either party which the judgment would directly produce.

In Count II of their Complaint, the plaintiffs ask for “full, complete, and proper medical attention for all class members” and that the Court take “any action it deems necessary and proper to prevent future injuries to the class members.” The defendants, by way of affidavit, state that the costs for a detailed physical examination would be in excess of $150.00 per person, amounting to $450,000 for all of its employees. They also state that it would cost them in excess of $10,000 each year to dispose of the by-products rather than recycle them. Thus, under the “either viewpoint rule,” the Court must take into consideration over $450,000 as the valuation of the equitable relief sought.

Hence, based on the above discussion, the Court must add an amount for punitive damages and an amount for the equitable relief sought to the compensatory damages in determining whether the jurisdictional minimum has been met. This final total must appear to a “legal certainty” to be less than the jurisdictional amount to justify remand. 1A Moore’s Federal Practice ¶ 0.157[6].

In the present case, the Court is ever mindful of the fact that awards for punitive damages can reach staggering amounts. Although the plaintiffs do not seek a specific dollar figure for the punitive damages the Court will assume for purposes of this determination that this amount may be “staggering” if the plaintiffs’ allegations are true. Therefore, in viewing the claims for compensatory damages, punitive damages, and equitable relief, together with an estimate for the number of class members, this Court cannot say to a legal certainty that the total award will not yield more than $10,000 to each successful claimant.

Alternatively, the jurisdictional amount is met under an exception to the rule against aggregation of claims by multiple parties. The settled rule is that “when several plaintiffs unite to enforce a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916); see also C. Wright, Law of Federal Courts 139 n. 8 (3d ed. 1976). The plaintiffs in the present case have a common and undivided interest in the recovery of punitive damages against the defendant. In Re Northern District of California “Daikon Shield” IUD Products Liability Litigation, 526 F.Supp. 887 (N.D.Cal.1981), vacated and remanded on other grounds, 693 F.2d 847 (9th Cir.1982). While no individual plaintiff has a right to an award of exemplary damages, all plaintiffs have a collective interest in the creation of a fund sufficient to punish and deter any alleged misconduct on the part of the defendant. Accordingly, the Court must look to the amount of the potential fund, and not the individual awards, for the determination of the amount in controversy. Id. at 911. Additionally, the plaintiffs have a common and undivided interest in enjoining the recycling activity. Based on the above discussion, it is clear that these amounts exceed the $10,000 requirement. Therefore, this Court’s removal jurisdiction is proper. The Court does not reach the defendants’ contention that § 1441(c) confers jurisdiction over the less than $10,000 claimants.

Accordingly, plaintiffs’ Petition for Remand (Document No. 9) is hereby DENIED. Defendants’ Motion to Drop Misjoined Party (Document No. 3) is hereby GRANTED. Granite City Steel Corporation is hereby DISMISSED from this case.

IT IS SO ORDERED.

      . It should be noted at this point that although the Court refers to this action as a class action, the Court has not as of yet certified this class. Assuming proper certification, the Court herein is determining whether it possesses proper subject matter jurisdiction.


author: QUACKENBUSH, District Judge.

text:
    Donald W. HEWITT, M.D., Plaintiff, v. Peter GRABICKI, M.D., et al., Defendants.
    No. C-80-480-JLQ.
    United States District Court, E.D. Washington.
    Oct. 23, 1984.

      Lawrence C. Smith, Spokane, Wash., for plaintiff.
    Carroll D. Gray, Asst. U.S. Atty., Spokane, Wash., for defendants.
   MEMORANDUM OPINION GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

QUACKENBUSH, District Judge.

This matter came on regularly for hearing with oral argument in Spokane, Washington on Defendants’ Motion To Dismiss. The Motion to Dismiss will be treated as a Motion for Summary Judgment due to the reference by plaintiff to various depositions and affidavits in his opposition to the Motion to Dismiss. Fed.R.Civ.P. 12(b)(6). Plaintiff was represented by Lawrence C. Smith; Assistant United States Attorney Carroll D. Gray appeared for defendants.

Plaintiff Dr. Hewitt was hired in December 1967 as a staff urologist at the Spokane Veteran’s Administration Hospital and remained in that position until his alleged involuntary retirement on December 28, 1980. Plaintiff contends he was orally informed at his hiring that he would be allowed to independently request consultation assistance from private medical practitioners.

The bases of this action were the comments attached to plaintiff’s Proficiency Reports for the years 1978 and 1979. Ct. Rec. 53 at Exhibits A and Q. Defendant Dr. Grabicki, Chief of Surgical Services at the Spokane facility, prepared the challenged Proficiency Reports which were reviewed by defendant Dr. Guilfoil, Chief of Staff at the Spokane Veterans Administration Hospital. While defendants Guilfoil and Grabicki rated plaintiff’s performance satisfactory in the 1978 Proficiency Report, defendant Guilfoil’s comments on the 1979 report rated plaintiff’s performance as unsatisfactory. Ct.Rec. 53 at Exhibit Q. Plaintiff complains that certain statements in the 1978 and 1979 Proficiency Reports were improper.

Plaintiff unsuccessfully sought administrative relief to have the deleterious remarks removed from the 1978 Proficiency Report, however, his request was initially denied by Donald Drake, Personnel Officer at the Spokane Veterans Administration facility and ultimately by defendant Max Cleland, Administration of Veteran’s Affairs. Ct.Rec. 53, Exhibits H & P. Subsequently, the instant action was filed seeking to have the quoted comments removed.

Plaintiff’s complaint also challenges the comments in the 1979 Proficiency Report, alleging they were untruthful, misleading, conclusionary and constitute misrepresentations of fact. The challenged 1979 comments state as follows:

Dr. Hewitt’s numerical score has decreased in the past year, indicating deterioration in performance.
In response to direct questions, both the Chief, Surgical Services and Dr. Dodson, consultant in urology, have told me they would not allow Dr. Hewitt to operate on them.
Dr. Hewitt has been quite careless in completing VA SF 522, the Consent for Surgery form, so that it is not always evident that the patient realizes what operation or procedure he has consented to.
On one recent occasion Dr. Hewitt told the wife of a patient with inoperable carcinoma of the bladder that he could not help the patient because the Devil had taken over the patient’s body.
In view of the above, it seems to me that Dr. Hewitt will have to be carefully monitored by the Chief, Surgical Services.

Ct.Rec. 3 at 6-7; Ct.Rec. 49 at Ex. 2, p. 6.

Dr. Hewitt’s affidavit admits he did not attempt to obtain administrative relief on the 1979 Proficiency Report. The alleged basis of this decision was the disposition of plaintiffs challenge to the 1978 Proficiency Report which plaintiff felt was completely similar. Ct.Rec. 53 at 5-6.

Plaintiff’s complaint contains numerous causes of action against defendants Grabicki and Guilfoil, as well as against co-defendants Daniel Myhre (a former Medical Assistant at the Spokane Veterans Administration facility); then V.A. Administrator Max Cleland and the United States of America. Plaintiff has alleged diversity (28 U.S.C. § 1332), federal question (28 U.S.C. § 1331); 28 U.S.C. § 1343 and pendent jurisdiction as the bases for this court’s subject matter jurisdiction.

The substantive allegations are as follows:

1. Defendants Grabicki, Guilfoil and Myhre conspired to deprive plaintiff of his civil rights and that although defendants were aware of the deprivation they failed to act.

2. The Privacy Act, 5 U.S.C. § 552a is unconstitutional on its face and as applied as it constitutes a denial of procedural due process.

3. Defendants Grabicki, Guilfoil, Myhre and Cleland acted in contravention of the Merit System Principle Act, 5 U.S.C. § 2301.

4. Defendants Grabicki, Guilfoil and Myhre individually or in concert acted with intent to damage plaintiff’s reputation, good name, integrity, credibility and economic relationships as well as to inflict mental' suffering and emotional distress.

5. Defendants Grabicki and Guilfoil breached an oral contract with plaintiff.

6. Defendants Grabicki, Guilfoil and Myhre negligently misrepresented the Proficiency Report comments.

7. Defendants Guilfoil, Grabicki, Myhre, Cleland and the United States of America failed to maintain records with such accuracy, relevance, timeliness and completeness as to ensure an adequate review of the record.

Defendants have asserted numerous grounds in their Motion to Dismiss, including inter alia, failure to exhaust administrative remedies pursuant to 5 U.S.C. § 552a(g); that the Veterans Administration and not then V.A. Administrator Cleland, is the proper defendant; the absence of plaintiff’s right to appeal his proficiency rating as plaintiff is not an employee within the coverage of 5 U.S.C. § 2302; qualified immunity as to the defendants Guilfoil, Grabicki and Myhre; the absence of any constitutional violation as a result of the challenged proficiency reports; the discretionary functions exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(c); and the absence' of any oral contract or breach thereof.

PRIVACY ACT CLAIMS

The plaintiff Hewitt complains of certain statements contained in his December 6, 1978 Proficiency Report for the year of December 6, 1977 to December 6, 1978. This Proficiency Report, however, rated Dr. Hewitt’s overall performance as “satisfactory”. Of critical import to this portion of the Privacy Act claim is the fact that no “adverse determination” was based upon the complained of comments. The December 6, 1978 Proficiency Report was as follows:

Although Dr. Hewitt’s overall performance as a staff urologist is still satisfactory, there have been a number of incidences during the past year that have required counseling.
1. On at least two occasions, he scheduled patients for elective surgery without a history and physical examination in the chart and became upset when the ORS brought this to my attention and I ordered the surgery cancelled. In one case he then performed the history and physical examination while the patient was under preoperative sedation, had it duly recorded in the chart and then requested to proceed with the scheduled surgery which was denied.
2. Two of his patients with diabetes were not properly managed and required intervention by other members of the staff.
3. Dr. Hewitt’s attitude appeared to be that he was only responsible for urological problems. He was advised that he was responsible for all patients assigned to him and should be familiar with all their medical problems. He should exercise good judgment in seeking proper assistance from other members of the staff.
4. On two occasions, during discussions with Dr. Hewitt, he became so angry and emotionally upset that I was temporarily unable to continue on with the discussion.
Since these incidences, there has been improvement in Dr. Hewitt’s attitude and performance.

A Proficiency Report on one medical doctor staff member by the Chief, Surgical Services and the Chief of Staff, another medical doctor, is a highly subjective process which is a matter which requires the views, judgments and opinions of the medical experts. Such decisions are for the experts in the medical field, not the courts. Clearly, the Privacy Act was not designed to have such judgments made by federal judges in a trial de novo. See Turner v. Department of Army, 447 F.Supp. 1207, 1213 (D.C.1978). The intent of the Privacy Act is to require governmental agencies to maintain accurate records. In this ease, the plaintiff’s record is accurate. He disagrees with his superiors’ conclusions as contained in his Proficiency Report. Plaintiff contends that the statements made by his superiors are not factually correct, however, he does not contend that in fact these statements were not made by his superiors. As such, plaintiff’s record is accurate as to his 1978 Proficiency Report.

Plaintiff has had the opportunity to have the 1978 Proficiency Report reviewed by the Administrator of the Veterans Administration who determined that the 1978 Proficiency Report should not be amended. Pursuant to 5 U.S.C. 552a(d)(3) the plaintiff has had the opportunity to insert a statement in his file setting forth the reason for his disagreement with the refusal of the agency to amend his 1978 Proficiency Report. The Privacy Act does provide for review by this court of the accuracy of the factual content of his record; however, this does not include substituting the judgment and opinion of this court for that of plaintiff’s medical superiors. Ferguson v. U.S., 447 F.Supp. 1213 (D.C.1978).

Besides the aforementioned reasons, plaintiff’s Privacy Act claim as to his 1978 Proficiency Report must also fail since there is no causal relationship between the statements contained in plaintiff’s 1978 Proficiency Report and an adverse determination as to the plaintiff. Plaintiff’s proficiency in the 1978 report was “satisfactory”. No adverse action was taken against the plaintiff as a result of the 1978 Proficiency Report. As stated in Edison v. Department of the Army, 672 F.2d 840, 845 (11th Cir.1982):

[5] The Privacy Act requires a causal relationship between the allegedly erroneous record and an adverse determination based on that record. Subsection (g)(1)(C) of the Act uses the phrases “in any determination ... that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.” (emphasis added). Subsection (g)(1)(D) similarly contains the phrase “fails to comply with any other provision ... in such a way as to have an adverse effect on an individual.” (emphasis added). The courts have the duty “to give effect to the intent of Congress, and in doing so our first reference is ... to the literal meaning of the words employed.” United States v. Second National Bank of North Miami, 502 F.2d 535, 539-40 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777. The district court properly-required Edison to prove proximate cause. See Bruce v. United States, 621 F.2d 914, 917 n. 9 (8th Cir.1980); see also United States v. Second Bank of North Miami, 502 F.2d 535, 539-40 (5th Cir. 1974).

Based upon the foregoing, plaintiff’s Privacy Act claim based upon the 1978 Proficiency Report must be DISMISSED WITH PREJUDICE.

The challenge to the comments contained in the 1979 Proficiency Report requires a different analysis as plaintiff admittedly did not pursue administrative relief with regard to the 1979 report. Plaintiff contends his failure to exhaust his statutory requirement to request the agency to amend his record (5 U.S.C. § 552a(d)(3)) should be excused due to futility.

The doctrine of primary administrative jurisdiction serves two goals: initial deference to the agency and conservation of judicial resources. Klicker v. Northwest Airlines, 563 F.2d 1310 (9th Cir.1977). Where the exhaustion requirement is due to an Act of Congress which designates an exclusive method of administrative appeal, administrative proceedings are a prerequisite to federal court jurisdiction. United States v. California Care Corp., 709 F.2d 1241, 1248 (9th Cir.1983); Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 500 (9th Cir.1980). If exhaustion of administrative remedies is statutorily mandated and exhaustion has not occurred, the action must be dismissed. Eluska v. Andrus, 587 F.2d 996 (9th Cir.1978).

5 U.S.C. § 552a(g) clearly requires administrative review as a condition precedent to a federal court action. There is no issue of partial exhaustion as to the 1979 Proficiency Report, thus, the Privacy Act challenge to the 1979 Proficiency Report must be DISMISSED WITHOUT PREJUDICE. See, Montgomery v. Rumsfeld, 572 F.2d 250, 253 (9th Cir.1978); Nagel v. U.S. Dept. of Health, Educ. & Welfare, 725 F.2d 1438, 1440-41 (D.C.Cir.1984).

MERIT SYSTEM PRINCIPLES ACT CLAIM

Plaintiff also claims defendants’ actions violated the provisions of the Merit System Principles Act, 5 U.S.C. § 2301 et seq. A performance evaluation pursuant to 5 U.S.C. § 4301, may be a prohibited personnel practice due to 5 U.S.C. § 2302(a). However, 5 U.S.C. § 4301(2)(C) states that the definition of employee does not include a physician with the Veteran’s Administration. Accordingly, plaintiff is not encompassed within the statutory scheme of the Merit System Principles Act, 5 U.S.C. § 2301 et seq. and thus the portion of his claim based upon 5 U.S.C. § 2301 must be DISMISSED WITH PREJUDICE.

PROCEDURAL DUE PROCESS CLAIMS

Plaintiff’s contention that there has been a denial of procedural due process is based upon the alleged failure of defendants to grant plaintiff a hearing at which he could challenge the accuracy of the comments section of the 1978 evaluation. The lack of procedural due process is also the apparent basis for the challenge to the constitutionality of the Privacy Act.

A two-part analysis is required to evaluate a procedural due process challenge. Plaintiff must first establish the existence of a liberty or property interest entitling him to due process protections. If there is a property interest, a balancing test is employed to determine what process is due. Jordan v. Lake Oswego, 734 F.2d 1374 (9th Cir.1984).

A protected property interest exists if there is á legitimate claim of entitlement to a specific benefit. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984). Plaintiff did not lose his job as a result of the 1978 evaluation; however, he claims that relief is necessary to compensate for damages to his reputation, good name, credibility and integrity. Ct.Rec. 3 at 12. Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976) holds that defamation alone is insufficient to establish a liberty or property interest; the defamation must occur in the course of the termination of employment. While plaintiff contends the gravamen of the suit is not a defamation action, it is clear that the comments to the 1978 Proficiency Report are the basis of plaintiffs allegation of a denial of procedural due process.

A protected liberty interest or safeguard may exist in protecting one’s good name, reputation, honor, and integrity under certain circumstances. Rich v. Secretary of Army, 735 F.2d 1220, 1226-27 (10th Cir.1984) and Lawrence v. Acree, 665 F.2d 1319, 1325-26 (D.C.Cir.1981). Similar to Lawrence v. Acree, supra, the possible stigma plaintiff may have incurred did not occur in connection with plaintiff’s termination, as plaintiff voluntarily terminated his employment. Plaintiff has not alleged he was forced to resign due to defendants’ actions in purposefully creating working conditions so intolerable that the employee had no option but to resign, Sure-Tan, Inc. v. National Labor Relations Board, — U.S.-,-, 104 S.Ct. 2803, 2809-10, 81 L.Ed.2d 732 (1984) (citing cases). Where, as here, there is no charge of dishonesty or immorality, no serious damage to plaintiff’s reputation or community standing may be shown. DeBose v. United States Dept. of Agr., 700 F.2d 1262, 1266-67 (9th Cir.1983).

Plaintiff voluntarily terminated his employment with the Veterans Administration and thus cannot claim a “dismissal [which] resulted in the publication of information which was false and stigmatizing”. Rich v. Secretary of the Army, 735 F.2d at 1227; Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 777-78 (9th Cir.1982). Further, the alleged stigmatizing information was made public only by plaintiff’s action in filing this action. Marwil v. Baker, 499 F.Supp. 560, 579 (E.D.Mich.1980). Accordingly, plaintiff’s procedural due process claims are DISMISSED WITH PREJUDICE.

CONSPIRACY CLAIMS AGAINST INDIVIDUAL DEFENDANTS

Plaintiff has also alleged the existence of a conspiracy between defendants Guilfoil, Grabicki, and Myhre to deny plaintiff his First and Fifth Amendment rights, a pendent conspiracy claim based upon damage to plaintiff’s economic relationships and reputation, as well as conspiracy allegations for breach of contract and intentional infliction of emotional distress. Ct.Rec. 3 at 2-3. For the reasons of immunity and those set forth below, plaintiff’s conspiracy claims must fail.

Plaintiff has not set forth the basis of his § 1343 claim. Assuming, arguendo, it is based on 42 U.S.C. § 1985(3), the action must fail due to plaintiff’s failure to plead the essential elements of a § 1985(3) claim. In an action filed under § 1985(3), a complaint must allege (1) a conspiracy, (2) to deprive any person or class of persons of equal protection of the laws or of equal privileges and immunities under the laws, (3) an act done by one of the conspirators in furtherance of the conspiracy, and (4) personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Additionally, plaintiff must allege facts which indicate that the conspiracy was motivated by a racial or some other class-based discriminatory animus. Id. Further, in § 1985(3) actions it is incumbent upon plaintiff to state specific facts showing with some degree of particularity that the named defendants’ participation or overt acts in the alleged conspiracy were the proximate or legal cause of his injury; mere causation in fact is insufficient. Arnold v. International Business Machines Corp., 637 F.2d 1350 (9th Cir.1981).

The mere fact that a conspiracy is alleged is insufficient to defeat an adequately supported motion for summary judgment. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983). Since defendants’ Motion To Dismiss is being treated as a Motion For Summary Judgment, plaintiff must point to some facts probative of a conspiracy to survive summary judgment. Ward v. E.E.O.G., 719 F.2d 311, 314 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2159, 80 L.Ed.2d 544 (1984). The court is satisfied insufficient facts have been raised to allow an inference of a conspiracy under § 1983, § 1985(3) or any state claims. Further, plaintiff has not pled the elements of an action under § 1985(3) or § 1983. It clearly appears that plaintiff can establish no factual matters to remedy the deficiencies in these claims. Accordingly, plaintiff’s conspiracy allegations are DISMISSED WITH PREJUDICE.

STATE TORT CLAIMS

Plaintiff has also filed numerous state tort claims against the defendants “under the Doctrine of Pendent Jurisdiction.” (Ct. Rec. 3, p. 3). These claims are:

1. Conspiracy to damage plaintiff’s economic relationship and reputation;

2. Conspiracy to cause breach of contract and to wilfully, maliciously, and tortiously inflict mental suffering upon the plaintiff.

Plaintiff alleges that these acts were committed by the defendants “as individuals, acting in bad faith and beyond the scope of their duties under law, regulation, custom and usage.”

Since the landmark decision of Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) federal officials have been afforded absolute immunity from common law tort liability if the federal officials’ actions were within the “outer perimeter” of the defendants’ authority. Barr held that a false and damaging publication within the outer perimeter of a federal official’s scope of duty was an exercise of discretion which was not itself actionable and would not become so even if it be assumed that the publication was made maliciously. At page 572, 79 S.Ct. at 1340 of Barr, the Court stated as follows:

... it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes of whose account it was vested in him.

The Ninth Circuit Court of Appeals has followed this mandate in cases such as Miller v. DeLaune, 602 F.2d 198, 199 (9th Cir.1979). Absolute immunity has been held to exist against a claim of conspiracy in the filing of an adverse performance evaluation by a federal official. Laurence v. Acree, 665 F.2d 1319 (D.C.Cir. 1981). The question of whether a defendant was acting within the outer perimeter of the official’s authority is a proper matter for summary judgment, since the factual inquiry is limited and is a legal issue for the court to decide. Butz v. Economou, 438 U.S. 478, 507-508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978); Shewmaker v. Minchew, 504 F.Supp. 156, 164 (D.C.1980); Expeditions Unlimited v. Smithsonian Instit., 566 F.2d 289, 292 n. 5 (D.C.Cir.1977). In this ease, it is clear that all of the individual defendants involved in the plaintiff’s proficiency ratings were acting within the scope of their official duties. As such, they are entitled to absolute immunity on the common law tort claims which must therefore be DISMISSED WITH PREJUDICE.

CONSTITUTIONAL VIOLATIONS CLAIMS

Plaintiff’s claims of constitutional violations by the defendants require the same scope of authority analysis as that applied to the immunity defenses on the common law tort claims, however, on the constitutional claims, the defendants are only entitled to qualified immunity. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S.Ct. 2727, 2737-39, 73 L.Ed.2d 396 (1982) the Supreme Court modified the elements to be analyzed in determining the applicability of qualified or “good faith” immunity. The Court recognized in Harlow that the “subjective” part of the prior two-prong analysis (objective and subjective) resulted in disruption of government officials’ actions and thoughts and was incompatible with the Court’s decision in- Butz that “insubstantial claims should not proceed to trial.” Instead, the Court in Harlow v. Fitzgerald, at page 818, 102 S.Ct. at 2738 adopted the objective test stating:

We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v. Navarette, 434 U.S. 555, 565 [98 S.Ct. 855, 861, 55 L.Ed.2d 24] (1978); Wood v. Strickland, 420 U.S. [308] at 322 [95 S.Ct. 992, at 1000, 43 L.Ed.2d 214].
Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonable competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.
By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not. implicated, the public interest may be better served by action taken “with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967).

In the instant case, the defendants were involved in their mandated duties of annually rating the plaintiff’s proficiency as a medical doctor. As held in Harlow, the mere allegation of subjective malice on the defendants’ part does not destroy their qualified immunity. Plaintiff’s constitutional claims must also be DISMISSED WITH PREJUDICE.

ALLEGED ORAL CONTRACT

Plaintiff alleges that Dr. Grabicki orally agreed at the time of plaintiff’s hiring to allow plaintiff to consult and obtain assistance on sophisticated surgery matters with outside doctors. Plaintiff alleges that the defendants rescinded and breached this oral promise. The defendants argue that Dr. Grabicki was without authority to enter into such an agreement, citing Federal Crop Insurance v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The defendants further contend that there can be no causal relationship established between the alleged breach of this oral agreement and plaintiffs retirement.

In paragraph (6) of his prayer for relief (Ct.Rec. 3, p. 12) plaintiff seeks judgment against the defendants Grabicki and the Veterans Administration in the amount of $500,000. Clearly, this court has no jurisdiction over such a contract claim. The Tucker Act, 28 U.S.C. § 1491, grants exclusive jurisdiction of such contract claims for over $10,000 to the Court of Claims. Since plaintiffs contractual claims is in effect one which alleges a breach of a governmental contract, allegedly entered into by governmental employees, the action is in effect one against the United States which, in view of the prayer, must be filed in the Court of Claims. The contractual claims against the individual defendants must fail since they were clearly acting within the scope of their employment. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1940). McQueary v. Laird, 449 F.2d 608-610 (10th Cir.1971).

For the foregoing reasons, plaintiffs breach of contract claims must be DISMISSED WITHOUT PREJUDICE.

Based upon the foregoing, plaintiffs complaint and the claims therein must be DISMISSED WITH PREJUDICE, except the Privacy Act challenge to the 1979 Proficiency Report and the Tucker Act claim for breach of contract, which claims shall be DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED. The Clerk is directed to enter this Order and forward copies to counsel.

      . Dr. Guilfoil is now deceased. Ct.Rec. 56.

      . Plaintiff has not pursued his challenge to the constitutionality of 5 U.S.C. § 552a and in any event, the court is satisfied the challenged statute is not unconstitutional. Plaintiff has an opportunity for a de novo hearing in his action based on the Privacy Act.

      . As the defendants were federal employees not acting under color of state law, plaintiff cannot satisfy the requirements of 42 U.S.C. § 1983.