Conant v. United States

No. 83-3325 (11th Cir. February 27, 1984)

The court rules that a claim for damages caused by an allegedly wrongfully issued Army Corps of Engineers dredge and fill cease and desist order must meet the requirements of the Federal Tort Claims Act (FTCA), but that a claim for equitable relief may lie under the Administrative Procedure Act (APA). The court holds that the district court lacked evidence to support its ruling that appellant's damage claim was untimely under the FTCA. Further, it holds that injunctive relief from Corps' action under § 404 of the Federal Water Pollution Control Act is not barred by sovereign immunity, since the APA waives that immunity.

Counsel for Appellant (Pro Se)
Marcus Conant
P.O. Box 30, Gainesville FL 32602
(904) 372-4813

Counsel for Appellee
Kenneth Sukhia, Ass't U.S. Attorney
110 E. Park Ave., Rm. 100, Tallahassee FL 32301
(904) 224-3186

Before Hill, Johnson, and Henderson, JJ.

[14 ELR 20428]

Per curiam:

This lawsuit stems from June 1981 cease and desist order issued by the United States Army Corps of Engineers prohibiting further discharges by Marcus Conant of dredge or fill materials in the water of the United States at or near the Santa Fe River in Alachua County, Florida. Upon receipt of the cease and desist order, Conant filed a claim with the Army Corps of Engineers seeking $300,000 in damages resulting from the issuance of the order. Notice of final denial of his administrative claim was dated July 13, 1982. The basis for the denial according to the July 13, 1982, letter was that the claim was "not payable because the applicable statute (28 U.S.C. 2680(a)) excludes liability for inspection and enforcement of the Clean Water Act." On January 19, 1983, Conant filed in the United States District Court for the Northern District of Florida his pro se complaint seeking monetary damages and injunctive relief. His complaint alleges that the United States District Court had jurisdiction over the case pursuant to 28 U.S.C.A. § 1331 and that the Corps of Engineers had misapplied the Clean Water Act of 1977 by issuing the cease and desist order. He requests that the district court award him $300,000 in compensatory damages, plus an amount in punitive damages to be determined by the court. He further asked the district court to nullify the cease and desist order and enjoin the Corps from taking additional action against him. The government moved to dismiss his complaint on the ground that the court lacked subject matter jurisdiction in that Conant's claim was barred under 28 U.S.C.A. § 2401 because he did not commence his action within six months of the date on which the notice of final denial of his administrative claim was mailed.

Finding that Conant had failed to bring his suit within the six-month period required by Section 2401, the district court dismissed his monetary damage claim for lack of jurisdiction. The district court in a separate order determined that Conant's claim for injunctive relief was barred by the doctrine of sovereign immunity. Accordingly, the court dismissed his entire action with prejudice.

According to 28 U.S.C.A. § 2401, a tort claim against the United States shall be forever barred unless the action is commenced "within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." See Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir. 1975).¹ This court cannot set aside the district court's finding as to the mailing date of the final notice unless that finding is clearly erroneous. FED. R. CIV. P. 52(a). In determining that Conant had failed to file his action timely, the district court found that the Corps' final notice was mailed to him on July 13, 1982, and that he filed his claim on January 19, 1983, more than six months later. The record does reflect that the letter of the Corps is dated July 13, 1982; however, there is nothing in the record showing that it was mailed on that date.Consequently, in the absence of any evidence establishing the mailing date of the final notice, the district court erred in finding that Conant failed to file his claim for monetary damages within the six-month period required by Section 2401. This part of Conant's claim will be remanded to the district court for the purpose of allowing the parties to present evidence as to the "date of mailing" of the July 13, 1982, letter of the Corps of Engineers.

In considering the disposition by the district court of Conant's claim for injunctive relief against the Corps of Engineers pursuant to 28 U.S.C.A. § 1331, we start with the premise that a suit for injunctive relief against a federal agency is barred by sovereign immunity unless specifically and explicitly waived. See Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682, 686-90 (1949); Petterway v. Veterans Administration Hospital, 495 F.2d 1223, 1225 (5th Cir. 1974). Although Conant characterizes his claim as one under Section 1331, that section cannot be construed as a waiver of sovereign immunity. Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972). However, this does not end the matter since 5 U.S.C.A. § 702 provides that a party suffering a legal wrong or adversely affected or aggrieved because of agency action is entitled to judicial review of that action and the party's claim shall not be dismissed on the ground that it is against the United States. It is clear, therefore, that Section 702 "waives sovereign immunity for actions against federal government agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to judicial review." Sheehan v. Army & Air Force Exchange Service, 619 F.2d 1132, 1139 (5th Cir. 1980), rev'd on other grounds, 456 U.S. 728 (1982).

Title 33 U.S.C.A. § 1311 prohibits the discharge of fill material into navigable waters unless authorized by 33 U.S.C.A. § 1344. Under Section 1344 the Secretary of the Army is authorized to issue permits for the discharge of fill material into navigable waters. Conant alleges in his complaint, however, that he was not required to obtain a permit because normal fish farming on a scale where the fish farming facilities produce less than a 100,000 harvest weight pounds per year are exempted from the statutory provisions and therefore, since his operation was not that large, the Corps of Engineers improperly issued him a cease and desist order. There is no question but that the United States Army Corps of Engineers is an "agency" within the meaning of the Administrative Procedure Act, Jaffee v. United States, 592 F.2d 712, 719 (3rd Cir.), cert. denied, 441 U.S. 961 (1979). Therefore, construing Conant's allegations liberally, which we must under Haines v. Kerner, 404 U.S. 519 (1972), it is clear that he states a claim that he suffered a legal wrong because of the Corps of Engineers' action. Consequently, the district court erred in dismissing his claim for injunctive relief as barred by sovereign immunity.

For the foregoing reasons, the judgments entered in this case by the district court are REVERSED and the case is REMANDED for further proceedings.

1. The Eleventh Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, which is binding unless and until overruled or modified by this Court en banc. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).