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United States v. Mt. Vernon Memorial Estates, Inc.

Citation: 14 ELR 20503
No. No. 83-1694, 734 F.2d 1230/(7th Cir., 05/16/1984) Refusal to reinstate the cause aff'd

The court holds that a district court did not abuse its discretion by refusing appellants' motion to reinstate a Federal Water Pollution Control Act § 404 enforcement suit that the government had voluntarily dismissed. Appellants had challenged the government's complaint, contesting jurisdiction over the disposal site and retroactive application of § 404 regulations. They also filed a counterclaim for a taking of their property, which was dismissed for lack of jurisdiction. The entire suit was dismissed voluntarily with leave to reinstate when appellants agreed to apply for a § 404 permit. When the Corps denied appellants' application, appellants moved to reinstate to settle the jurisdiction and taking issues. The district court denied the motion.

The circuit court first holds that the dismissal of the suit was a final judgment not rendered interlocutory by the subsequent leave to reinstate, and appellants did not file a timely appeal of it. The sole question before the court is whether denial of reinstatement was an abuse of discretion. The court holds that the district court's ruling did not constitute repudiation of the settlement agreement. Since the dismissal agreement was between the government and the appellants, the district court's action could not breach it. Further, the district court had no authority to reinstate the government's claims after the government had voluntarily withdrawn. Though appellants might now have a cause of action for judicial review of the permit denial, in the dismissed suit the appellants had no cause of action of their own properly before the district court. Once the voluntary dismissal of the government's claim was entered, no cause of action remained.

Counsel for Appellants
Russell J. Topper
111 W. Washington St., Chicago IL 60602
(312) 726-3001

Counsel for Appellee
Robert L. Klarquist, David C. Shilton, Kay Richman
Land and Natural Resources Division
Department of justice, Washington DC 20530
(202) 633-2731

Before ESCHBACH, POSNER, and FLAUM, Circuit Judges.