Avella v. United States Army Corps of Engineers

No. 90-5289 (11th Cir. September 17, 1990)

The court holds that a district court lacked jurisdiction to review a Corps of Engineers' negative response to a landowner's request for confirmation that the Federal Water Pollution Control Act nationwide dredge and fill permit applies to the landowner's property. The court holds that the Corps' response does not constitute agency action, or assuming it does, the response is not final agency action under the Administrative Procedure Act (APA) subject to judicial review. The Corps' response to a request for confirmation is merely advisory and has no binding legal effect on a potential permittee. Moreover, the denial of judicial review of a negative response under these circumstances is consistent with APA jurisprudence and with the regulatory scheme established under § 404. Additionally, the court notes that the Declaratory Judgment Act is not a source of subject matter jurisdiction.

[The district court opinion is published at 20 ELR 20920.]

Counsel for Appellant

Anthony J. O'Donnell

Akermkan, Senterfitt & Eidson

One Brickell Sq., 801 Brickell Ave., 24th Fl., Miami, FL 33131

(305) 374-5600

Counsel for Appellant

M. Alice Thurston, Jon M. Lipshultz

Enviroment and Natural Resources Division

U.S. Department of Justice, Washington DC 20530

(202) 514-2000

[21 ELR 20542]

PER CURIAM:

Opinion^*

The district court dismissed this case for want of subject matter jurisdiction. We affirm.

First the response of the appellee complained of does not constitute agency action within the meaning of 5 U.S.C. § 5551 (13), because such response is not an order, license, or any other action or failure to act referred to in that section. Alternatively, assuming that it could be said that the response is agency action, it is not final agency action within the meaning of the Administrative Procedure Act (APA). See 5 U.S.C. § 704 (1988). "[T]o be final an order must 'impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.' "ECEE, Inc. v. FPC, 526 F.2d 1270, 1273 (5th Cir.), cert. denied, 429 U.S. 867, 97 S. Ct. 176 (1976) (emphasis in original) (quoting Chicago & SouthernAir Lines v. Waterman Steamship Corp., 333 U.S. 103, 13, 68 S. Ct. 431 (1948)). The response complained of here has no binding legal effect on the appellant as a potential permittee. It merely advised appellant that his proposed activity is unauthorized. The denial of judicial review (of a negative agency response) under the circumstances here is entirely consistent with APA jurisprudence and, further, with the regulatory scheme implicated in this case.

Appellant contents that the district court should have invoked the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (1988), and granted him relief. We disagree. The Declaratory Judgment Act is not a source of subject matter jurisdiction; thus, given the lack of a jurisdictional base, the district court had no power to grant relief under the Act.

The judgment of the district court is, accordingly,

AFFIRMED.

* The court indicated that the opinion was not to be published.