Summary
stating that "[t]he clear and unambiguous language of [Panola and Sheehan] is that the waiver of sovereign immunity contained in Section 702 . . . is a general waiver of sovereign immunity without limitation on whether a cause of action under the APA is also pled"
Summary of this case from Miccosukee Tribe of Indians of Florida v. U.S.Opinion
Case No. 2:03-cv-229-T-30SPC
April 22, 2004
ORDER
THIS CAUSE comes before this Court upon the Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (Dkt. #34) and Plaintiffs' response (Dkt. #36) thereto. On April 21, 2004, this Court heard oral argument on this matter. After close consideration, this Court concludes that Defendants' motion should be granted, but Plaintiffs should be given leave to file an amended complaint seeking review under the Administrative Procedures Act (the "APA") of the biological opinions rendered.
This is an action seeking injunctive, declaratory, and mandamus relief against the Director (the "Director") of the Fish and Wildlife Service (the "FWS") and the Secretary (the "Secretary") of the Department of the Interior (the "Department") (collectively the Director and the Secretary are referred to as the "Defendants"). The remaining Plaintiffs are two land given leave to file an amended complaint seeking review under the Administrative owners, a marine contractors' association, three marine contractors, and a permitting service. Each plaintiff is seeking a permit (on their own behalf or on the behalf of others) to construct docks and other structures on Florida waterways.
The contractors association itself is not seeking a permit, but several of its members, who are also plaintiffs in this action, are seeking permits. The contractors and the permitting service are and will allegedly seek other permits that will require similar biological opinions.
Plaintiffs' five count Amended Complaint alleges that the FWS: (a) failed to timely complete consultations and render biological opinions under the statutory deadlines imposed by the Endangered Species Act ("ESA"); and (b) was wrongly applying the incidental take authorization requirements of the Marine Mammal Protection Act ("MMPA") in rendering its biological opinions under the ESA. Defendants' Motion asserts that after this action was filed, the FWS rendered its biological opinions on each permit specifically referenced in the Amended Complaint. Defendants moved to dismiss, arguing that Counts I-III are now moot and that this Court lacks subject matter jurisdiction over this dispute
II. DISCUSSION A. SUBJECT MATTER JURISDICTION
Plaintiffs have primarily argued that subject matter jurisdiction exists under 28 U.S.C. § 1331 (federal question jurisdiction) or under 16 U.S.C. § 1540(g) (the ESA citizen suit provision). The government responded that the ESA citizen suit provision does not apply and sovereign immunity bars this Court from exercising federal question jurisdiction over this dispute. This Court will consider each argument in turn.
This Court rejects Plaintiffs other bases for subject matter jurisdiction over this dispute. The Eleventh Circuit has held that the Declaratory Judgment Act is procedural only and did not form an independent basis for subject matter jurisdiction. See Household Bank v. JFS Group, 320 F.3d 1249, 1253 (11th Cir. 2003). Similarly, the Eleventh Circuit has concluded that the All Writs Act did not provide an independent basis for subject matter jurisdiction. See Henson v. Ciba-Geigy Corp., 261 F.3d 1065, 1070-71 (11th Cir. 2001). Additionally, mandamus jurisdiction over Counts II and III is inappropriate because an alternative adequate remedy exists for review under 5 U.S.C. § 706(1), See generally Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (per curiam) (stating that mandamus is extraordinary remedy available only when no other adequate remedy exists).
1. The ESA Citizen Suit Provision
The Supreme Court has held that the ESA citizen suit provision contained in 16 U.S.C. § 1540(g) did not authorize jurisdiction over claims for maladministration or violations of 16 U.S.C. § 1536.See Bennett v. Spear, 520 U.S. 154, 172-74 (1997). Plaintiffs' claims under the ESA allege either maladministration by the FWS or violations of 16 U.S.C. § 1536. Plaintiffs attempt to distinguish their claims from those raised in Bennett, but this Court concludes that Bennett is controlling here. Therefore, this Court concludes that subject matter jurisdiction does not exist under 16 U.S.C. § 1540(g).
2. Federal Question Jurisdiction and the APA
Section 1331 states that "[t]he district courts have original jurisdiction of all civil action arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. However, Section 1331 does not contain a waiver of the United States' sovereign immunity from suit See Sheehan v. Army Air Force Exch. Serv., 619 F.2d 1132 (5th Cir. 1980), rev'd on other grounds, 456 U.S. 728 (1982). If sovereign immunity applies, then it acts as a complete bar to Plaintiffs' claims.
In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to September 30, 1981, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
A suit seeking injunctive or declaratory relief against a named government official in their official capacity, like this action, is generally deemed to be a suit against the United States. See Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 687-88 (1949).
While Plaintiffs neither pled nor argued that one of their claims were brought under the APA, Section 702 of the APA contains a broad waiver of sovereign immunity. 5 U.S.C. § 702. Section 702 reads in pertinent part:
. . . [a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action. . . .Id.
In Panola Land Buyers Assn. v. Shuman, the Eleventh Circuit held that "[t]he defense of sovereign immunity is waived in actions against federal government agencies seeking nonmonetary relief if the agency conduct is itself subject to judicial review [under the APA]." 762 F.2d 1550, 1555 (11th Cir.1985). Panola involved an APA and declaratory challenge to the Farmers Home Administration's management of two federal loan programs. See id. at 1552-53. The Eleventh Circuit concluded without differentiating between the APA and declaratory claims that sovereign immunity was waived by Section 702 as to both. See id. at 1555: also Davis v. Rucker, case no. 3:01-cv-627, 2002 WL 31235735, at *4 (M.D. Fla. Aug. 23, 2002) (concluding that sovereign immunity defense was waived in a non-APA declaratory action).
In reaching its decision in Panola, the Eleventh Circuit cited to a former Fifth Circuit case Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1139 (5th Cir. 1980).Panola, 762 F.2d at 1555. Sheehan involved a claim that a government employee had been denied procedural due process in prosecuting an appeal of his termination from government service. 619 F.2d at 1136. The plaintiff did not plead a claim under the APA, but relied on the federal question statute and the Tucker Act alone to provide subject matter jurisdiction. See id. The district court dismissed the case for lack of subject matter jurisdiction. See id. The former Fifth Circuit reversed concluding, in relevant part, that federal question jurisdiction existed over the plaintiff's claims.See id. at 1138-39, The former Fifth Circuit held that "Congress did intend [under Section 702 of the APA] to waive the defense of sovereign immunity for nonstatutory review under section 1331."Id. at 1139.
Turning to this action, it is undisputed that judicial review is available for biological agency action" under the APA and subject to review). It is also undisputed that claims of inaction by an agency are reviewable under the APA, especially when an agency has an "unequivocal statutory duty to act." See, e.g., National Parks Conversation Assn., 324 F.3d 1229, 1239 (11th Cir. 2003) (quoting Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001)). Instead, Defendants argue that: (1) the waiver of sovereign immunity contained in Section 702 only applies to actions in which a cause of action under the APA is also pled; or (2) the jurisdictional and judicial review limitations contained in the APA apply to the non-APA claims brought by Plaintiffs.
Defendants first argument (Section 702's waiver of sovereign immunity only applies to non-APA claims when an APA claim is also pled) is not well taken. This Court realizes that several circuit courts have limited the waiver in such a fashion. However, this Court is bound by the Eleventh Circuit's decision in Panola and the former Fifth Circuit decision in Sheehan. The clear and unambiguous language of both opinions is that the waiver of sovereign immunity contained in Section 702 of the APA is a general waiver of sovereign immunity without a limitation on whether a cause of action under the APA is also pled.Panola, 762 F.2d at 1555; Sheehan, 619 F.2d at 1139.
However, Defendants second argument (the limitations on jurisdiction and judicial review contained in the APA apply to non-APA claims) is well taken. Indeed, such power or duty of the court to dismiss any action. . . ."). In Panola, the Eleventh Circuit applied one such limitation to non-APA claims when that court analyzed whether the doctrine of exhaustion of remedies applied to both the APA and non-APA claims in that case. 762 F.2d at 1556-57. Additionally, other United States Courts of Appeal that have considered the issue have applied such limitations to non-APA claims. Finally, if this Court held that the APA's limitations on judicial review and jurisdiction did not apply to non-APA claims against an agency, then the limitations in the APA would be rendered meaningless. Anyone subject to an agency action could easily circumvent the limitations in the APA by simply claiming that their claims for administrative review were not APA claims. Therefore, this Court concludes that the limitations on jurisdiction and judicial review contained in the APA apply to non-APA claims brought against a government agency seeking review of agency actions.
See, e.g., Gallo Cattle Co. v. U.S. Dep't of Agriculture, 159 F.3d 1194, 1198 (9th Cir 1998) (concluding that because administrative action at issue was not a final agency action under 5 U.S.C. § 704 the claim had to be dismissed).
Plaintiffs' claims in this case seek review of agency action (or inaction), and are, therefore subject to the jurisdictional and judicial review limitations of the APA. Defendants argue that this Court must dismiss Counts IV and V because those counts seek review of non-final agency action, which is prohibited under 5 U.S.C. § 704 InNational Parks Conservation Assn., the Eleventh Circuit held that a district court pursuant to 5 U.S.C. § 704 should dismiss claims when there has been no final agency action. 324 F.3d at 1240. In making process; and (2) the action must be one by which either "`rights or obligations have been determined'" or "`legal consequences will flow.'" 520 U.S. at 177-78. The Court in that case concluded that biological opinions rendered by the FWS pursuant to the ESA were "final agency action" under the APA and subject to review. See id.
This Court concludes that Counts IV and V are not reviewable as currently pled because there was no final agency action taken by FWS as to any of the remaining Plaintiffs. Counts IV and V seek declaratory relief that the FWS should not apply the MMPA to their pending and future permits (when the FWS is conducting formal consultation of permits and rendering biological opinions) because the MMPA does not apply to inland waters or fixed structures such as docks. At the time that Plaintiffs filed their Amended Complaint, the FWS had rendered only one biological opinion on one of the permits referenced in the Amended Complaint. That plaintiff has since voluntarily dismissed its claims and is no longer before this Court. At the time of the Amended Complaint, none of the remaining Plaintiffs had their rights or obligations determined and no legal consequences could flow to Plaintiffs because no biological opinion had been rendered by the FWS on those permits, Therefore, this Court dismisses Counts IV and V because those counts seek review of non-final agency action. However, this Court will allow Plaintiffs leave to file a second amended complaint, seeking review of the biological opinions rendered by the FWS under the APA.
At oral argument, the Defendants conceded that no further review or exhaustion would be required once the FWS renders a biological opinion.
This Court expresses no opinion on whether: (a) the Florida Marine Contractor's Association would have standing to participate in such a dispute; and (b) the joinder of all of the biological opinions in one action seeking review would constitute misjoinder.
B. MOOTNESS OF COUNTS I-III
Defendants next argue that Counts I-III should also be dismissed because FWS has now rendered biological opinions on every permit referred to in the Amended Complaint. Plaintiffs respond that Counts I-III are not moot because the capable-of-repetition-yet-evading-review exception applies. As an initial matter, both the Supreme Court and the Eleventh Circuit have described the capable-of-repetition exception as "narrow" applying only in "exceptional circumstances." City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Dow Jones Co, v. Kaye, 256 F.3d 1251, 1256 (11th Cir. 2001). The Eleventh Circuit utilizes a two part test to determine when the exception applies.See Kaye, 256 F.3d at 1256. Courts in the Eleventh Circuit look to whether: (1) the action is too short in duration to be fully litigated prior to cessation or termination of the action; and (2) there is a "reasonable expectation that the same complaining party will be subject to the same action again." Id. at 1256.The first prong of the capable-of-repetition exception is met when because of the activity's nature the activity will cease prior to a party being able to obtain appellate review. See, e.g., Globe Newspaper Co. v. Superior Court of Norfolk Co., 457 U.S. 596 (1982) (concluding that a gag order in state court criminal trial was capable-of-repetition-yet-evading-review); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) (applying exception to a strike): Roe v. Wade, 410 U.S. 113 (1973) (concluding that abortion regulation challenge met exception because pregnancy will only last 266 days or less); Kaye, 256 F.3d at 1256-57 (holding that a gag order in a civil state court case did not meet the first prong of the capable-of-repetition exception because civil cases last longer than criminal cases). In addition, courts in the Eleventh Circuit examine whether the reason that the action is now moot is because of a delay by the complaining party in bringing the action. See Kaye, 256 F.3d 1257-58.
The second prong of the capable-of-repetition exception is met when future repetition is more than a potential or hypothetical concern to the complaining party. See BB Chemical Co. v. U.S. Envtl. Prot. Agency, 806 F.2d 987, 990 (11th Cir. 1986). In BB Chemical, the Eleventh Circuit held that the second prong was not met because the plaintiff issued by a Magistrate that allowed the EPA to collect samples, install monitoring wells, and obtain other environmental measurements. See id. at 988. The Eleventh Circuit dismissed an appeal challenging the warrant as moot because the warrant had been executed in the interim. See id. at 989. The Eleventh Circuit concluded that the capable-of-repetition exception did not apply because the plaintiff had not shown a likelihood that it would be subject to future allegedly illegal searches. See id.
This Court need not reach a conclusion on whether the first prong of the exception is met, which this Court believes is a close question, because Plaintiffs failed to meet the second prong of the exception. Other than conjecture and speculation, Plaintiffs have not shown a likelihood that the FWS will in the future fail to meet the statutory deadline for conducting consultations or rendering biological opinions. Indeed, the fact that such a statutory deadline exists counsels against any other conclusion by this Court absent some past evidence of repeated violations of the statutory deadlines. Therefore, this Court dismisses Counts I-III as moot. It is therefore ORDERED AND ADJUDGED that:
This question is a close question in this case because Plaintiffs delayed bringing suit against the Defendants so that they could invoke the ESA citizen suit provision and receive their attorneys' fees. This Court has already concluded that the Supreme Court in Bennett unequivocally held that jurisdiction for claims, like Plaintiffs' claims, did not exist under the ESA citizen suit provision.
Indeed as to the two land owner plaintiffs, there is absolutely nothing in the record that indicates that they will ever need to apply for another permit to construct another dock. All the remaining Plaintiffs have argued that they (or their members) will likely apply for permits in the future.
From the record before this Court, this Court does not know how often the FWS has failed to meet the statutory deadline in the past. Statistical evidence on either a state, regional, or area basis showing past inaction by the FWS is one way that Plaintiffs could show a likelihood of future inaction.
1. Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (Dkt. #34) is GRANTED.
2. Plaintiff is given TWENTY (20) DAYS to file an amended complaint, seeking review under the APA of the biological opinions. FAILURE TO FILE AN AMENDED COMPLAINT MAY RESULT IN THIS COURT DISMISSING THIS ACTION WITHOUT FURTHER NOTICE.
3. Because this Court is requiring Plaintiffs to re-plead this action under the APA, Plaintiffs' Motion for Summary Judgment (Dkt. #9) is DENIED without prejudice.
4. The Parties shall meet and file a Case Management Report within THIRTY (30) DAYS of Plaintiffs filing their second amended complaint. FAILURE TO FILE A CASE MANAGEMENT REPORT MAY RESULT IN THIS COURT DISMISSING THIS ACTION WITHOUT FURTHER NOTICE.
DONE and ORDERED.