Francis Cammisa & Jack A. James, Inc. v. Gorsuch

No. H-82-1168 (D. Conn. April 29, 1983)

The district court rules that it cannot compel the Administrator of the Environmental Protection Agency (EPA) to perform an interim audit of a contract awarded to plaintiff under the Federal Water Pollution Control Act to construct a portion of a sanitary sewer system in East Hampton, Connecticut. The court finds that while the audit provision creates a duty in the grant recipient to keep records open to EPA, it does not create a duty in EPA to perform an interim audit. Because the performance of an interim audit id discretionary, no writ of mandamus can issue.

Counsel for Plaintiff
John Rose Jr.
Byrne, Shechtman & Slater
P.O. Box 3216, Hartford CT 06103
(203) 525-4700

Counsel for Defendant
Thomas J. Riley, Ass't U.S. Attorney
P.O. Box 1824, New Haven CT 06508
(203) 432-2108

Jesse Carrillo
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3126

[13 ELR 20635]

Clarie, J.:

Ruling on the Defendant's Motion to Dismiss

Pursuant to Rule 12(b), FED. R. CIV. P., the defendant has moved to dismiss the plaintiff's complaint which seeks, under 28 U.S.C. § 1361, to compel the Administrator of the Environmental Protection Agency (EPA) to perform an interim audit on a contract awarded to the plaintiff under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. The Court finds that there is no plainly defined and peremptory duty on the part of the defendant to perform an interim audit, and hence no writ of mandamus can issue.The defendant's motion to dismiss is accordingly granted.

Facts

The plaintiff is a joint venture contractor, which entered into several contracts with the East Hampton, Connecticut, Water Pollution Control Authority, hereafter Grantee, to construct a portion of a sanitary sewer system being built in the Town of East Hampton and financed by federal funds administered by the Environmental Protection Agency, pursuant to 33 U.S.C. § 1361 of the Federal Water Pollution Control Act. After plaintiff's Contract No. 2 was substantially completed, a dispute arose between the plaintiff and the Grantee, concerning payment due to the plaintiff. This dispute led to the filing of a lawsuit in Connecticut Superior Court, Judicial District of Middlesex, by the plaintiff on September 4, 1981, seeking money damages from the Grantee. The complaint alleges that the Grantee's agent, a private engineer, failed to keep adequate records of work performed by the plaintiff.

In March and April, 1982, the plaintiff requested that the EPA perform an audit on Contract No. 2, in order to determine what the plaintiff was owed by the Grantee. By a letter dated April 15, 1982, the Assistant Inspector General for Audits for the EPA advised the plaintiff that "I will have my Divisional Inspector General for Audits undertake an audit of this project as soon as his auditors and engineering staff are available to do so." (emphasis added). In response to the plaintiff's further insistence that the EPA conduct an immediate audit of the individual Contract No. 2, even before the East Hampton project as a whole was completed, the Divisional Inspector General for Audits, Eastern Division, informed the plaintiff in a letter of October 13, 1982 that "our audits are normally performed at the end of a project not on a contract by contract basis." The plaintiff had been similarly informed by the Chief of the Municipal Facilities Branch, Region I of the EPA, as early as April 14, 1982. At no time has the plaintiff filed any affidavit with the EPA, stating fraud against the Government.

Discussion

The plaintiff seeks a writ of mandamus, pursuant to 28 U.S.C. § 1361, to compel the defendant, Administrator of the EPA, to perform an interim audit on Contract No. 2, between the plaintiff and the Grantee, Town of East Hampton. As the Second Circuit stated in Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir. 1972), cert. denied 411 U.S. 918 (1973), mandamus may issue only where three elements co-exist:

(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.

Id.

The only statutory provision pertaining to audits of water pollution control grants administered by the EPA is 33 U.S.C. § 1361(d), which reads:

Audit

(d) the Administrator and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access, for the purpose of audit and examination, to any books, documents, papers, and records of the recipients that are pertinent to the grants received under this chapter.

While this provision creates a duty in grant recipients to keep their records open to the EPA, it cannot be construed to create a duty in the EPA to perform an interim audit, even before a grant project is completed. One federal regulation, promulgated in accordance with the Federal Water Pollution Control Act, more specifically adresses interim audits of water pollution control grants. 40 C.F.R. § 30.820(a) provides:

§ 30.820 Audit

(a) Preaward or interim audits may be performed on grant applications and awards.

(Emphasis added). On its face, this regulation makes the performance of an interim audit discretionary, and not mandatory. The plaintiff's review of the legislative history of the Federal Water Pollution Control Act does not reveal any congressional intention that contradicts or overrides the plain language of the applicable regulation, which makes an interim audit discretionary.

The plaintiff has failed to establish a plainly defined and peremptory duty on the part of the defendant Administrator to perform an interim audit on Contract No. 2. No writ of mandamus can issue and the defendant's motion to dismiss is accordingly granted.

SO ORDERED.