Smoke Rise, Inc. v. Washington Suburban Sanitary Commission

No. 73-1031 (D. Md. April 10, 1974)

The court grants motion to dismiss, as barred by sovereign immunity, claims against the EPA Administrator in a suit against him and various state and local governments by landowners in counties where a sewer hook-up moratorium has been imposed. Plaintiffs seek injunctive relief requiring the Administrator to develop comprehensive plans and regulations for the discharge of pollutants pursuant to the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), and to discontinue withholding grant funds for the construction of sewage treatment facilities. The only jurisdictional basis for such claims is § 505 of the FWPCA, but plaintiffs in this case failed to give the Administrator 60 days notice of their intention to file suit as required by that section of the Act. The court unequivocally rejects the contention that "substantial compliance" with the notice provision has occurred because more than 60 days elapsed from the date the complaint was filed to the date of the hearing. Such an approach, the court rules, would constitute impermissible judicial amendment of an explicit statutory provision.

Counsel for Plaintiffs
John J. Delaney
Linowes & Blocher
Suite 600 Metropolitan Building
8720 Georgia Avenue
Silver Spring, Maryland 20910

Counsel for Defendant Russell E. Train
Michael D. Graves
Department of Justice
Washington, D.C. 20530

[4 ELR 20427]

Northrop, J.

ORDER GRANTING MOTION TO DISMISS OF DEFENDANT RUSSELL E. TRAIN

This is an action brought by various landowners, for themselves and as representatives of the class of persons so situated, against Russell E. Train, Administrator of the Environmental Protection Agency, and various state and local governmental bodies. Plaintiffs allege that the defendants have made it impossible for plaintiffs to develop their land, because some defendants have imposed sewer hook-up moratoria in the counties in which said land is situated, and because all defendants have failed to develop comprehensive plans for dealing with the lack of waste treatment facilities in or for those counties. The plaintiffs seek injunctive relief requiring the Administrator to develop regulations for the discharge of pollutants pursuant to Section 402 of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), 33 U.S.C. Section 1342, to develop comprehensive plans pursuant to Sections 208 and 303 of the FWPCA, 33 U.S.C. Sections 1288 and 1313, and to discontinue withholding grant funds for the construction of sewage treatment facilities.

He matter is presently before the Court on the defendants' motions to dismiss. The Court held a hearing on March 29, 1974, which was limited to the issues raised in the motions to dismiss.

Russell E. Train, as Administrator of the Environmental Protection Agency, is an agent of the United States. Plaintiffs sued him in his official capacity. Consequently, this is a suit against the United States, and, unless Congress has consented, this suit is barred by the doctrine of sovereign immunity. Dugan v. Rank, 372 U.S. 609 (1963); Malone v. Bowdoin, 369 U.S. 643 (1962); Land v. Dollar, 330 U.S. 731 (1947). Any waiver of sovereign immunity by Congress "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969).

Plaintiffs rely upon 28 U.S.C. Sections 1331, 2201 and 2202 as the bases for this Court's jurisdiction. Section 1331 has never been construed to constitute a waiver of the sovereign immunity of the United States. Beale v. Blount, 461 F.2d 1133 (C.A. 5, 1972); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 686 (C.A. 10, 1966); Anderson v. United States, 229 F.2d 675 (C.A. 5, 1946); Nehf v. United States, 302 F. Supp. 356 (N.D. Ill., 1969); Kentucky v. Fri, 5 ERC 1728 (W.D. Ky., 1973). Moreover, the Declaratory Judgment Act, 23 U.S.C. Sections 2201 and 2202, is procedural in nature and does not enlarge the jurisdiction of the district courts or waive the sovereign immunity of the United States. E.g., White v. Administrator of General Services Administration, 343 F.2d 444 (C.A. 9, 1965); Donnely v. Mavar Shrimp & Oyster Company, 190 F.2d 409 (C.A. 5, 1951).

Waiver of the sovereign immunity of the United States with respect to actions of the Administrator taken pursuant to his authority under the FWPCA can only be found in the FWPCA itself. Section 505(a)(2) of the FWPCA, 33 U.S.C. Section 1365(a)(2), allows "any citizen" to "commence a civil action on his own behalf . . . against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator." Section 505(a)(2) does not, however, constitute a blanket consent to suit. Section 505(b)(2) of the Act goes on to provide that "[n]o action may be commenced . . . under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator." (Emphasis added.)

Plaintiffs allege that the Administrator failed to perform certain non-discretionary duties under the FWPCA. Plaintiffs did not, however, predicate this Court's jurisdiction upon Section 505 of the FWPCA. However, even if plaintiffs were allowed to amend their complaint to base jurisdiction upon Section 505, it would do them no good in this case. Waivers of sovereign immunity are strictly construed and their terms must be complied with precisely. Seriano v. Uniited States, 352 U.S. 270 (1957). Plaintiffs, by not giving the Administrator notice of their intention to file suit at least sixty days before they filed, did not comply with the requirements of Section 505.

Plaintiffs filed their complaint on October 18, 1973.They did not give notice of their intention to file suit until December 5, 1973. In an attempt to circumvent the clear language of Section 505, plaintiffs rely upon the case of Riverside v. Ruckelshaus, 3 ELR 20043 (S.D. Cal., 1972).In that case, which involved a citizen suit brought under the Clean Air Act,¹ no notice was given to the Administrator. However, since more than sixty days elapsed from the date of filing of the complaint to the date of hearing, the court held that there had been "substantial compliance" with the sixty-day notice provision.

This Court finds more persuasive the cases of The City of Highland Park v. Train, unreported, No. C 73-3027 (N.D. Ill., 1974); and [4 ELR 20428] Pinkney v. Ohio Environmental Protection Agency, [4 ELR 20460] No. C 73-1159 (N.D. Ohio, 1974), both of which unequivocally rejected contentions similar to those advanced by the plaintiffs in Riverside v. Ruckelshaus.² In The City of Highland Park, the Court, in rejecting the argument that a lapse of sixty days from the filing of the complaint constitutes compliance with the citizen suit provision, said at slip op. p. 14:

Such an approach to the notice provision constitutes, in effect, judicial amendment in abrogation of explicit, unconditional statutory language and this court respectfully declines so to ignore or to modify the notice requirement.

This Court can discern no difference between the argument that having a hearing more than sixty days after the complaint is filed when no notice has been given constitutes compliance with the notice provision, and the argument that having a hearing more than sixty days after notice is filed when notice is only filed after suit is begun constitutes such compliance. Finding "compliance" in either situation necessitates engrafting a judifical amendment onto the clear language of Section 505(b)(2). This this Court refuses to do. Since plaintiffs did not comply with the notice provision, this Court lacks jurisdiction under Section 505 of the FWPCA, 33 U.S.C. Section 1365, to entertain plaintiffs' claims against the Administrator. As a result, consent by Congress not being present, this cause is barred by the doctrine of sovereign immunity.

Therefore, it is hereby ordered that defendant Train's Motion to Dismiss in the above-captioned cause is hereby granted, and plaintiffs' claims against the Administrator are hereby dismissed, without prejudice.

1. Section 304 of the Clean Air Act, 42 U.S.C. Section 1857h-2, is identical to Section 505 of the Federal Water Pollution Control Act Amendments of 1972.

2. Both cases involved citizen suits under the Clean Air Act.