Fifth Circuit Defers to EPA's Expertise, Approves Broad § 404 Wetlands Jurisdiction

Kenneth L. Rosenbaum

Editors' Summary: In Avoyelles Sportsmen's League, Inc. v. Marsh, the Fifth Circuit ruled that bottomland hardwood wetlands cannot be converted into farmland without an FWPCA § 404 permit. The court endorsed EPA's broad interpretatin of wetlands and established a deferential standard for review of EPA wetland determinations. The author analyzes these rulingsand the changing role of the courts in the implementation of § 404.

[13 ELR 10397]

Since 1899, the Army Corps of Engineers has had authority to control dredging and filling of the nation's navigable waters.¹ In 1972 enactment of § 404 of the Federal Water Pollution Control Act (FWPCA) expanded the Corps' authority to include dredging and filling of all the nation's waters.² Environmental groups, developers, and the Corps have repeatedly locked horns in court over just how broad this new authority is.³

In Avoyelles Sportsmen's League, Inc. v. Marsh,⁴ the parties argued over whether landowners needed a § 404 permit to convert a bottomland hardwood forest to farmland. The Fifth Circuit ruled that most of the forest was wetlands, which are governed by § 404, and that the landowners needed a permit. Like most § 404 decisions, Avoyelles broadly construed the Corps' jurisdiction. However, the case is the first appellate decision to endorse the Environmental Protection Agency's (EPA's) inclusive interpretation of wetlands and the first to hold that land clearing for agricultural conversion can be "dredge and fill." As such, the case places millions of acres of southern bottomlands under the Corps' aegis.⁵

Equally important are the decision's administrative holdings.The Corps, EPA, and various courts have all claimed authority to interpret the extent of § 404 jurisdiction. The Avoyelles court acknowledged EPA's power to interpret FWPCA jurisdictional limits and established a deferential standard for judicial review of EPA's determination.

The Case

Avoyelles concerned the clearing of a 20,000-acre tract of bottomland hardwoods in Louisiana.⁶ The tract contained some areas of cypress swamp, more or less permanently inundated, some regularly flooded areas with flood-tolerant vegetation, and some areas that were relatively dry. In the early summer of 1978, the landowners, private defendants in the case, began to clear the tract to turn it into a soybean farm.

The Corps ordered them to stop while it determined whether the FWPCA gave it authority to regulate their activities. The FWPCA prohibits the "discharge of pollutants" into "navigable waters" without a permit.⁷ These terms are broadly defined. "Pollutants" include fill or dreded spoils,⁸ and "navigable waters" include all the waters of the United States,⁹ including wetlands.¹⁰ In general, EPA has the power to issue discharge permits.¹¹ However, § 404 gives the Corps power to issue permits for discharge of fill or dredged spoils.¹² The section allows EPA to veto Corps permits for cause.¹³

After studying the tract, the Corps determined that [13 ELR 10398] about 35 percent of it was covered with obligate hydrophytes — plants that thrive only in water-saturated soils. Based on this finding, the Corps determined that 35 percent was wetlands subject to § 404 jurisdiction. The remainder of the tract, the Corps concluded, was outside its jurisdiction under § 404.

In November of 1978 the plaintiffs sued the landowners and the Corps, asking the court to rule that the entire tract was wetlands and that all of the land clearing was subject to § 404. The district court enjoined further clearing and, because EPA and the Fish and Wildlife Service apparently disagreed with the Corps on the extent of the wetlands, ordered the government to do a final wetlands determination. EPA interpreted § 404 wetlands jurisdiction to include not only land with obligate hydrophytes, but also land with vegetation that tolerates flooding — facultative hydrophytes — and land with soils that bear evidence of saturation. Using this interpretation, EPA submitted a final wetlands determination to the court declaring 80 percent of the tract to be wetlands.

Two issues were before the court at trial. The court first had to determine whether defendants' land clearing was a "dredge and fill" activity regulated under § 404. It concluded that § 404 did apply to land clearing done on wetlands.¹⁴ The court then had to consider whether EPA was correct in determining that 80 percent of the tract was wetlands. The court concluded that EPA had misclassified some of the tract's soils, and that in fact 90 percent of the tract was wetlands.¹⁵ The court enjoined the clearing of those lands without a § 404 permit.

The Fifth Circuit Opinion

On appeal, the Fifth Circuit considered both the wetlands ruling and the land-clearing ruling. First, addressing the wetlands determination, the court of appeals chided the district court for deciding the wetlands issue de novo when it had an administrative decision complete with record before it.¹⁶ The proper standard of review, the Fifth Circuit concluded, was the Administrative Procedure Act's (APA's) arbitrary and capricious standard. Plaintiffs argued that de novo review was proper because the wetlands determination was a jurisdictional question. The court declared that if the question was whether the federal government had jurisdiction over any of the tract, de novo review would be proper. In Avoyelles, the question was simply the extent of the government's jurisdiction within the tract. This determination is best left to the agencies' expertise, and must be reviewed under the same standard as other administrative findings.¹⁷

The court of appeals, for the sake of judicial economy, proceeded to consider several issues that stemmed from its ruling on the standard of review but that were not addressed below. The court ruled that EPA did not need to follow APA rulemaking procedures when it adopted the methods it used to determine whether the tract was a wetland.¹⁸ So long as EPA's methods interpreted rather than amended the definition, EPA's choice amounted to creation of an interpretive rule and was not subject to the notice and comment requirements of the APA.

The court did not squarely address whether the Corps or EPA should have the final word on wetlands identification methodology. That question was not before the court, since the Corps had deferred to EPA's determination. However, the court noted that by ruling of the Attorney General, the ultimate authority to determine jurisdiction under § 404 rests with EPA.¹⁹ Also, the court noted that the Corps had effectively adopted EPA's methods by supporting them in this suit.²⁰

Examining the definition of wetlands and EPA's interpretation of it, and acknowledging the great deference due EPA in interpretation of FWPCA regulations, the court held that EPA's choice of methods did not unfairly amend the definition.²¹ Further, EPA's interpretation of wetlands was consistent with the FWPCA and the Constitution.²² Finally, the court sustained EPA's application of its wetlands interpretation to the tract as not arbitrary or capricious.²³ The court thus endorsed EPA's finding that 80 percent of the tract was wetlands and rejected the district court's finding that 90 percent of the tract was wetlands.

The court then turned to the second major issue, whether the land-clearing operations on wetlands required a § 404 permit. The court noted that the agencies had not made a formal finding suitable for judicial review, and the court regretted that the district court had not asked the Corps to make such a determination under the primary jurisdiction doctrine.²⁴ Noting that the agencies had presented their interpretations at trial and did not press the primary jurisdiction issue on appeal, the court declined to remand the issue to the agencies and instead reviewed the district court's decision under the usual standards of appellate review.

The district court had found that defendants' clearing operations included, besides removal of vegetation, some soil movement and leveling. The court of appeals sustained these findings under the "not clearly erroneous" standard.²⁵ The district court held that the heavy equipment used for clearing constituted point sources, and that the mere removal of vegetation, which destroyed the ecological function of the wetlands, was a "discharge" under the FWPCA. The court of appeals affirmed the point source ruling, but called the "mere removal" question a "false issue" because the defendants were doing more than just removing vegetation. Land was leveled and dead vegetation was buried. These acts constituted a discharge of fill. The court refused to consider whether mere removal of vegetation would come under § 404, nor did the court rule, as the district court did, that the vegetation [13 ELR 10399] was part of the wetlands and that its burial constituted discharge of dredged materials.²⁶

Finally, the court disposed of several other issues: if affirmed the district court's ruling that land clearing was not a normal farming or silvicultural activity exempt from regulation under § 404(f)(1);²⁷ it agreed with the district court that the landowners' takings claims were not ripe;²⁸ it ruled that the district court properly denied a motion to intervene filed after the case had been appealed;²⁹ and it refused to rule on three minor issues not raised below.³⁰

Discussion

Avoyelles has implications both for the immediate administration of the § 404 program and the review of that administration in the courts. The Corps by and large has been a reluctant guardian of wetlands.³¹ Its original § 404 regulations excluded wetlands altogether;³² these were struck down in court as being contrary to the statute.³³ It subsequently adopted a broader definition of its jurisdiction, but when Avoyelles was brought, the Corps interpreted its definition of wetlands narrowly to include only lands with obligate hydrophytes. After the Avoyelles trial court endorsed a broader interpretation of wetlands, the Corps applied that interpretation, bu only in the trial court's district.³⁴ Now that the Fifth Circuit has endorsed EPA's wetlands methodology, the Corps will presumably apply it at least within the circuit, which includes much of the South's bottomlands.

The Fifth Circuit's ruling that the land clearing was dredge and fill under § 404 may also encourage the Corps to implement § 404 broadly. Two recent decisions had cast doubt over whether land clearing ever requires a permit. In the first, Save Our Wetlands, Inc. v. Sands,³⁵ the court held that the felling of trees in a wetland for a utility right-of-way does not require a permit. That case can be distinguished from Avoyelles: in Save Our Wetlands the land was to remain a wetland minus its trees, while in Avoyelles the land was to become upland, removed from the waters of the United States. The Avoyelles court endorsed this distinction.³⁶ In the second decision, National Wildlife Federation v. Gorsuch,³⁷ the court held that EPA need not regulate dams under the point source discharge provisions of § 402 of the FWPCA because § 402 only governs the addition of external pollutants. The Avoyelles court ruled that § 404 governs a discharge even if it adds no external pollutants.³⁸ These rulings make it unlikely that any wetland could be converted into an upland farm without a § 404 permit.Since 80 percent of wetland loss is due to agricultural conversion,³⁹ Avoyelles reaffirms the Corps' authority to control a significant amount of the loss.

Of course, Avoyelles does not guarantee that the Corps will try to stop the loss of wetlands. Avoyelles merely requires the landowners to apply for a permit; the Corps has considerable discretion in granting permits. In addition to granting individual permits, the Corps can reduce its role in protecting wetlands in two ways: it can amend its regulations to reduce the scope of its authority to deny a permit, or it can grant nationwide permits to give blanket approval to certain activities. The Corps has recently taken both routes.⁴⁰

Judicial Review Under Avoyelles

The courts have never arrived at a consistent standard for reviewing applications of § 404 wetlands regulations. The two courts of appeals that see the most § 404 litigation, the Fifth and Eleventh Circuits, have moved towards different standards. The Eleventh Circuit's district courts have generally done de novo review,⁴¹ and recently the court of appeals tacitly gave the de novo standard its blessing.⁴²

The Fifth Circuit's district courts have generally been more deferential but have been inconsistent. In United States v. Fleming Plantations,⁴³ decided in 1978, the court heard evidence on the nature of the tract but sustained the Corps' determination using a reasonableness standard.The same court three years later, in Buttrey v. United States,⁴⁴ refused to allow new evidence and sustained the Corps' determination on the record using the arbitrary and capricious standard. A year later, the court apparently did a de novo review in Bayou Des Familles Development Corp. v. United States Corps of Engineers⁴⁵ and then went back to the reasonableness standard in Bayou St. John Improvement Association v. Sands.⁴⁶

Twice recently, the Fifth Circuit has addressed the question of the proper scope of review. In the appeal of [13 ELR 10400] Buttrey,⁴⁷ the court summarily approved the arbitrary and capricious standard. In Avoyelles, in a more detailed discussion of the scope of review, the court approved the arbitrary and capricious standard, reserving de novo review for times when "the court must determine whether the property falls under the agency's jurisdiction at all before it may determine whether the exercise of the agency's jurisdiction is appropriate."⁴⁸

This ruling is unclear. Does the court mean that de novo review is proper only if the agency has made no formal finding on the extent of its jurisdiction? Another part of Avoyelles suggests that in such a case, the court should stay its review and remand the question to the agency under the primary jurisdiction doctrine.⁴⁹ Does the court mean that de novo review is proper when the jurisdictional dispute involves all of a tract rather than part of a tract? That would mean that if the landowners in Avoyelles had owned only the 10 percent of the tract that the trial court said were wetlands and EPA said were not, the court of appeals would have sustained the trial court's de novo review. Clearly, no policy of judicial fairness, consistency, or economy supports such a result.

Courts generally have had problems deciding on a consistent standard of review for issues involving an agency's jurisdiction.⁵⁰ Congress compounded the courts' problems in the FWPCA. First, Congress defined agency jurisdiction using the words "navigable waters."⁵¹ "Navigable waters" was a common law concept developed in cases disputing private property rights in submerged and tidal lands.⁵² In the 1899 Rivers and Harbors Act (RHA), Congress borrowed the common law concept to delineate the Corps' power to regulate dredging and filling.⁵³ To this day, courts have ruled that the common law and the RHA navigable waters standard are identical, that the courts may rule de novo on navigability, and that the Corps has no power to alter RHA navigability through regulations.⁵⁴

In the FWPCA, Congress again used "navigable waters," this time to delineate the extent of both the Corps' and EPA's jurisdiction. However, Congress abandoned the common law definition, defining navigable waters as "the waters of the United States, including the territorial seas."⁵⁵ Still, Congress couched the Act's jurisdiction in terms that the courts traditionally interpreted de novo.

Congress further encouraged the courts towards de novo review in the Act's legislative history. The conference committee report explained that "navigable waters" was a constitutional standard, stretching as far as the Commerce Clause allows.⁵⁶ Courts are loath to give up their preeminent role in interpreting the Constitution. Also, the committee report declared that the interpretation of navigable waters is to be "unencumbered by agency determinations which would have been made or may be made for administrative purposes."⁵⁷ Congress thus left the courts ample, though not certain, support for de novo review.

The Avoyelles court attempted to articulate a standard that would allow de novo review in some circumstances, but would avoid having the courts duplicate the complex factual inquiry agencies must sometimes make to establish the bounds of § 404 jurisdiction. This approach makes sense; the courts cannot match the agencies' expertise in applying wetlands biology in the field. But traditional judicial deference may be inappropriate here; Congress intended the courts to keep a close watch on agency implementation of § 404. Courts should defer to agency application of § 404 regulations, but should keep a sharp eye on the content of regulations, including interpretive regulations. Under this rule of scrutinizing regulations rather than their application, the district court in Avoyelles was wrong in taking expert testimony on the tract and making an independent wetlands determination. However, the court was correct in scrutinizing EPA's wetlands determination methods and in ruling that EPA was improperly excluding certain soils from the wetlands category. In practice, this approach would save the court time and preclude plaintiffs from raising new evidence about a tract at trial, but would still allow the court to keep a strong rein on the § 404 program, as Congress intended.

The Future of the § 404 Program

Avoyelles in a sense is part of a past era — a time when the greatest pressure for change in the implementation of § 404 came through the courts. The greatest pressure is now coming from within the executive branch.

In response to criticism that the § 404 program is overly burdensome to landowners,⁵⁸ the Corps has proposed new regulations to speed up and ease the § 404 permitting process.⁵⁹ For example, applicants will no longer have the [13 ELR 10401] burden of proving that their projects are in the public interest.⁶⁰ Also, the Corps will allow less time to review applications.⁶¹ The new regulations claim not to have changed the definition of wetlands, but to have elaborated on it by further defining some terms.⁶² Critics have claimed that these further definitions will drastically reduce the scope of the Corps' jurisdiction, excluding areas such as bottomland hardwoods and tundra.⁶³

The Corps has also reduced its oversight role through the use of general permits. These allow a specific class of activities to proceed without individual permit review. Last year the Corps issued 25 nationwide general permits.⁶⁴ Some of these have been criticized not only as a significant retreat from wetlands protection, but also as illegal.⁶⁵

The courts' role in § 404's implementation is not over. Already, environmentalists have challenged the Corps' reforms.⁶⁶ But the courts will act to brake changes rather than to speed them; judicial interpretation of § 404 will set the limits of the Corps' reforms.

1. Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401-466n, ELR STAT. 41141.

2. 33 U.S.C. § 1344, ELR STAT. 42142.

3. See, e.g., infra cases cited in notes 50-56 and accompanying text.

4. 13 ELR 20942 (5th Cir. Sept. 26, 1983).

5. In 1978, the nation had 5.18 million acres of bottomland hardwoods, over half of which were in Louisiana. The nation lost approximately 6.6 million acres of bottomland hardwoods between 1937 and 1978. FORSYTHE & GARD, STATUS OF BOTTOMLAND HARDWOODS ALONG THE LOWER MISSISSIPPI RIVER 4-5 (undated; published by the U.S. Fish and Wildlife Service, Jackson, Miss. 39201).

6. The facts are taken from the court of appeals opinion, 13 ELR 20942 (5th Cir. Sept. 26, 1983), and the two district court opinions, Avoyelles Sportsmen's League v. Alexander, 473 F. Supp. 525, 11 ELR 20315 (W.D. La. 1979); 511 F. Supp. 278, 11 ELR 20321 (W.D. La. 1981).

7. FWPCA § 301(a), 33 U.S.C. § 1311(a), ELR STAT. 42123, outlaws discharge of pollutants; FWPCA § 502(12), 33 U.S.C. § 1362(12), ELR STAT. 42146, defines discharges in terms of additions to navigable waters.

8. FWPCA § 502(6), 33 U.S.C. § 1362(6), ELR STAT. 42146.

9. FWPCA § 502(7), 33 U.S.C. § 1362(7), ELR STAT. 42146.

10. Wetlands are not mentioned in the statute, but the regulations implementing § 404 expressly include wetlands. 33 C.F.R. § 323.2, ELR REG. 46380.

11. FWPCA § 402, 33 U.S.C. § 1342, ELR STAT. 42141.

12. FWPCA § 404(a), 33 U.S.C. § 1344(a), ELR STAT. 42142.

13. FWPCA § 404(c), 33 U.S.C. § 1344(c), ELR STAT. 42143.

14. Avoyelles Sportsmen's League v. Alexander, 473 F. Supp. 525, 11 ELR 20315 (W.D. La. 1979).

15. Avoyelles Sportsmen's League v. Alexander, 511 F. Supp. 278, 11 ELR 20321 (W.D. La. 1981).

16. Avoyelles Sportsmen's League, Inc. v. Marsh, 13 ELR 20942, 20944-46 (5th Cir. Sept. 26, 1983).

17. The court's holding is critiqued infra in text accompanying notes 41-57.

18. 13 ELR at 20947-48.

19. Id. at 20944 n.12.

20. Id. at 20948 n.27.

21. Id. at 20948-50.

22. Id. at 20950-51.

23. Id. at 20951-52.

24. Id. at 20952-53.

25. Id. at 20954.

26. Id. at 20954-55.

27. Id. at 20955-56. Alternatively, the court noted, § 404(f)(2) disallows the § 404(f)(1) exemption for activities that change the use of the land.

28. 13 ELR at 20956-57.

29. Id. at 20957.

30. Id. at 20957-58.

31. See Blumm, The Clean Water Act's Section 404 Permit Program Enters Its Adolescence: An Institutional and Programmatic Perspective, 8 ECOL. L.Q. 410, 411, 416-17, 470 (1980); Tripp, Bottomland Hardwood Wetlands — Fifth Circuit Offers Protection at Last, NAT'L WETLANDS NEWSLETTER, Nov.-Dec. 1983, at 14. (Mr. Tripp was counsel for plaintiffs in Avoyelles.)

32. 39 Fed. Reg. 12119 (1974).

33. Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 5 ELR 20640 (D.D.C. 1975).

34. See Tripp, supra note 31.

35. 711 F.2d 634, 13 ELR 20851 (5th Cir. 1983).

36. 13 ELR at 20956 n.46.

37. 693 F.2d 156, 13 ELR 20015 (D.C. Cir. 1982).

38. 13 ELR at 20955 n.43.

39. See Tripp, supra note 31.

40. See infra text accompanying notes 58-65.

41. E.g., United States v. Conrad, 13 ELR 20532 (M.D. Fla. Mar. 22, 1983); United States v. Lambert, 13 ELR 20045 (M.D. Fla. June 3, 3, 1981), aff'd on other grounds, 695 F.2d 536, 13 ELR 20436 (11th Cir. 1983); United States v. Tilton, 12 ELR 21102 (M.D. Fla. Jan. 7, 1982), aff'd, 705 F.2d 429, 13 ELR 20583 (11th Cir. 1983); United States v. Carter, 12 ELR 20682 (S.D. Fla. Feb. 25, 1982); United States v. Weisman, 489 F. Supp. 1331, 10 ELR 20698 (M.D. Fla. 1980).

42. United States v. Tilton, 705 F.2d 429, 13 ELR 20583 (11th Cir. 1983).

43. 9 ELR 20103 (E.D. La. Dec. 22, 1978).

44. 11 ELR 20932 (E.D. La. Apr. 1, 1981), aff'd, 690 F.2d 1170, 13 ELR 20085 (5th Cir. 1982).

45. 541 F. Supp. 1025, 13 ELR 20055 (E.D. La. 1982).

46. 13 ELR 20011 (E.D. La. June 17, 1982).

47. 690 F.2d 1170, 13 ELR 20085 (5th Cir. 1982).

48. 13 ELR at 20945.

49. Id. at 20952; see also id. at 20945 ("If the agency decision is not sustainable on the basis of the administrative record, then … the matter should be remanded …" (emphasis in original). Of course, the court here is not referring to primary jurisdiction, but to a related doctrine).

50. In Crowell v. Benson, 285 U.S. 22 (1932), the Court declared that in reviewing agency actions, courts may do a de novo review of "jurisdictional" facts. The case is seldom expressly followed, yet has never been overruled.

51. FWPCA § 502(12), 33 U.S.C. § 1362(12), ELR STAT. 42146.

52. See Leslie Salt Co. v. Froehlke, 578 F.2d 742, 749-50, 8 ELR 20481, 20483 (9th Cir. 1978).

53. That is, Congress used the term "navigable waters" in the Act without defining it, and the courts assumed that Congress intended the term to have its common law meaning. See id.

54. Id.

55. FWPCA § 502(7), 33 U.S.C. § 1362(7), ELR STAT. 42146.

56. CONF. REP. NO. 1236, 92d Cong., 2d Sess. 144, reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3776, 3822.

57. Id. (emphasis added).

58. For an overview of recent criticism of the § 404 program and the Corps' response, see Comment, Corps Recasts § 404 Permit Program, Braces for Political, Legal Skirmishes, 13 ELR 10128 (May 1983). The most influential criticism has come from the Presidential Task Force on Regulatory Relief. See 48 Fed. Reg. 21466 (1983) (preface to Corps' proposed regulations). For an example of private criticism of the program, see Parish & Morgan, History, Practice, and Emerging Problems of Wetlands Regulation: Reconsidering Section 404 of the Clean Water Act, 17 LAND & WATER L. REV. 43 (1982). For a response to Parish & Morgan, see Blumm, Wetlands Preservation, Fish and Wildlife Protection, and 404 Regulation: A Response, 18 LAND & WATER L. REV. 469 (1983).

59. 48 Fed. Reg. 21466 (1980) (proposed May 12, 1980). The proposed regulations have drawn strong reaction in recent public hearings. See Corps Holds Public Hearing on Proposed Permit Regulations, NAT'L WETLANDS NEWSLETTER, Nov.-Dec. 1983, at 3.

60. See 48 Fed. Reg. 21466 (1983) (discussion of § 320.4(a)(1)).

61. See id. at 21471-73 (proposed § 325.2, processing of applications). See also Comment, supra note 58, at 10131.

62. See id. at 21467 (discussion of § 323.2(a)).

63. E.g., Brown, Corps Proposals Are Further Retreat From Wetlands Protection, NAT'L WETLANDS NEWSLETTER, July-Aug. 1983, at 7; but see Gianelli, Regulatory Reform Equals Good Government, id. at 6 (stating that "[t]here has been no proposal … to reduce existing federal jurisdiction"). The proposed definitions are ambiguous, and whether they will actually reduce the Corps' jurisdiction is unpredictable.

In any case, the Corps probably lacks the authority to unilaterally reduce its § 404 jurisdiction; EPA has a say in the matter. This conclusion was reached by the Attorney General, 43 Op. Att'y Gen. No. 15 (Sept. 5, 1979), and endorsed by the Avoyelles court, 13 ELR at 20944 n.12. In comments responding to the Corps' proposed regulations, EPA reminded the Corps that any changes in the regulations affecting the Corps' jurisdiction under § 404 will require EPA's concurrence. Letter from the Office of the Administrator, EPA, to the Office of the Chief of Engineers at 22 (Aug. 31, 1983) (commenting on proposed 33 C.F.R. pt. 328).

The Corps would prefer to have primary authority for all aspects of the § 404 program. See Comment, supra note 58, at 10130, 10133.

64. 47 Fed. Reg. 32132 (1982).

65. See National Wildlife Federation v. Marsh, No. 82-3632, ELR PEND. LIT. 65775, 65784 (D.D.C., complaint filed Dec. 22, 1982).

66. Id.