Hicks

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TED HICKS, ET AL. CIVIL ACTION

VERSUS 24-395-SDD-RLB

UNITED STATES OF AMERICA, ET AL.

RULING

This matter is before the Court on the Motion for Partial Judgment on the Pleadings

pursuant to Federal Rule of Civil Procedure (“Rule”) 12(c) filed by Defendants, the United

States of America, the United States Army Corps of Engineers, Cullen Jones, and

Kimberly Peeples (collectively, “Defendants”).1 Plaintiffs, Ted Hicks and Grand Lake LLC

(collectively, “Plaintiffs”), filed an Opposition,2 and Defendants filed a Reply.3 For the

following reasons, the Motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiffs filed this lawsuit seeking judicial review of an Approved Jurisdictional

Determination (“AJD”) issued by the United States Army Corps of Engineers (“USACE”)

which determined that a tract of land owned by Plaintiffs is subject to regulation under the

Clean Water Act (“CWA”).4 In addition to review of the AJD under the Administrative

Procedure Act (“APA”), Plaintiffs seek “recovery of costs, expert fees, and attorney fees

upon the resolution of the action” pursuant to the Equal Access to Justice Act (“EAJA”).5

1 Rec. Doc. 27.

2 Rec. Doc. 29.

3 Rec. Doc. 32.

4 Rec. Doc. 1, ¶¶ 1–3.

5 Id. at ¶¶ 34–38.

Further, Plaintiffs claim they were denied procedural due process due to delays by

Defendants during Plaintiffs’ administrative appeal of the AJD.6

By the instant Motion, Defendants seek dismissal of Plaintiffs’ procedural due

process claim and the EAJA request. As to the procedural due process claim, Defendants

argue: 1) Plaintiffs’ allegations fail to meet the Rule 8 pleading standard; 2) Defendants

are entitled to sovereign immunity; and 3) Plaintiffs failed to adequately allege a protected

liberty or property interest and constitutionally inadequate process.7 As to the EAJA

request, Defendants argue it should not be treated as an independent cause of action,

and even if it were, it would be unripe.8

II. LAW AND ANALYSIS

A. Rule 12(c) Standard

Rule 12(c) provides that, “[a]fter the pleadings are closed—but early enough not

to delay trial—a party may move for judgment on the pleadings.” “A motion for judgment

on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss

under Rule 12(b)(6).”9 The Court should accept all well-pleaded facts as true, viewing

them in the light most favorable to the plaintiff, the non-moving party.10

A motion for judgment on the pleadings under Rule 12(c) is designed to dispose of

a case where the material facts are not in dispute and a judgment on the merits can be

rendered by looking at the substance of the pleadings and any judicially noted facts.11

6 Id. at ¶ 39.

7 Rec. Doc. 27-1, pp. 15–23.

8 Id. at pp. 23–24.

9 Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

10 Guidry v. Am. Public Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007); See also In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

11 Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per ciruam) (citing 5A

Wright & Miller, Federal Practice & Procedure, § 1367 at 509–10 (1990); J.M. Blythe Motor Lines Corp. v.

Blalock, 310 F.2d 77, 78–79 (5th Cir. 1962)).

Additionally, the court may rely on the complaint, its proper attachments, “documents

incorporated into the complaint by reference, and matters of which a court may take

judicial notice.”12

“The central issue is whether, in the light most favorable to the plaintiff, the

complaint states a valid claim for relief.”13 “The issue is not whether the plaintiff will

ultimately prevail, but whether [the plaintiff] is entitled to offer evidence to support his

claim.”14 To survive a defendant's motion, a plaintiff must allege enough facts “to state a

claim that is plausible on its face.”15 “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.”16 “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.”17 A complaint is insufficient if it merely “tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’”18 The plaintiff's “[f]actual allegations must be enough to

raise a right to relief above the speculative level, on the assumption that all the allegations

in the complaint are true (even if doubtful in fact).”19 “[W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of misconduct, the complaint

has alleged—but not ‘shown’—‘that the pleader is entitled to relief.’”20

12 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).

13 Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001) (quoting St. Paul Mercury Ins. Co. v.

Williamson, 224 F.3d 425, 440 n. 8 (5th Cir. 2000)).

14 Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).

15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

17 Id. (quoting Twombly, 550 U.S. at 556).

18 Iqbal, 556 US at 678.

19 Guidry, 512 F.3d at 180.

20 Iqbal, 556 US at 678.

“Pleadings should be construed liberally, and judgment on the pleadings is

appropriate only if there is no disputed issue of fact and only questions of law remain.”21

“If it is clear that the plaintiff can prove no set of facts that would entitle them to relief, then

the court may dismiss the claim.”22 While the Court must accept all well-pleaded facts as

true, it should not “strain to find inferences favorable to the plaintiff.”23 Further, the Court

should not “accept as true conclusory allegations or unwarranted deductions of fact.”24 A

Motion to dismiss under Rule 12(c), just like Rule 12(b)(6), is disfavored and rarely

granted.25

B. Procedural Due Process Claim

1. Rule 8

Defendants first argue that Plaintiffs’ procedural due process claim should be

dismissed for failure to comply with the pleading standard of Rule 8. Rule 8 provides, in

pertinent part: “A pleading that states a claim for relief must contain ... a short and plain

statement of the claim showing that the pleader is entitled to relief[.]” The allegations must

“give the defendant fair notice of what the plaintiff's claim is and the grounds upon which

it rests.”26 This pleading standard “does not require ‘detailed factual allegations,’ but it

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”27

21 Hughes, 278 F.3d at 420.

22 Jones, 188 F.3d at 324.

23 Taha v. William Marsh Rice Univ., No. CIV.A. H-11-2060, 2012 WL 1576099, at *2 (S.D. Tex. May 3,

2012) (quoting Southland Sec. Corp. v. Inspire Ins Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

24 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000) (quoting Tuchman v. DSC

Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994)).

25 Boyd v. Dallas Indep. Sch. Dist., No. 3:08-CV-0426, 2009 WL 159243, at *1 (N.D. Tex. Jan. 21, 2009)

(citing Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981)).

26 Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other grounds by Twombly, 550 U.S. 544.

27 Iqbal, 556 U.S. at 678.

Plaintiffs’ Complaint includes the following allegations which expressly reference

due process:

The Corps regulates and restricts Plaintiffs’ freedom to use

and enjoy said lands. USACE regulation also provides

regulated persons administrative appeal rights on certain

Corps’ actions, but the federal regulatory agencies involved

have obstructed Plaintiffs’ appeal rights while for over three

years holding Plaintiffs in perpetual limbo without use of the

lands Defendants have deemed jurisdictional despite expert

reports to the contrary. The Corps’ actions and inactions are

arbitrary and capricious and deprive Plaintiffs of the due

process of law.28

…

Defendants then failed to follow their own regulations

providing for administrative appeal of USACE actions.

Defendants delayed for 27 months during the appeal process

causing additional substantial damages to Plaintiffs including

lost financial opportunity as during this delay period the Parish

instituted a Parish wide moratorium upon similar residential

developments. Defendants vexatiously denied Plaintiffs their

procedural due process by neglecting to issue an

administrative appeal decision, despite Plaintiffs waiting more

than twice the time period dictated by regulation.29

Construing the Complaint liberally in Plaintiffs’ favor, the Court finds that these

allegations meet the notice-pleading standard required by Rule 8. The Complaint contains

enough substance to give Defendants fair notice of the grounds upon which the

procedural due process claim rests: unwarranted delays in the appeal process resulting

in lost use of the land and financial opportunities. Therefore, the Court will deny the Motion

with respect to Rule 8.

28 Rec. Doc. 1, ¶ 2.

29 Id. at ¶ 39.

2. Sovereign Immunity

The doctrine of sovereign immunity “renders the United States, its departments,

and its employees immune from suit except as the United States has consented to be

sued.”30 As Defendants recognize, “Section 702 of the APA waives the United States’

sovereign immunity for actions seeking non-monetary relief against federal government

agencies.”31 However, Defendants argue that Plaintiffs’ procedural due process claim

does not fall under the APA’s waiver of sovereign immunity because Plaintiffs only seek

monetary relief for the claim.32

Although not explicitly clear in the Complaint, Plaintiffs clarify in their Opposition

brief that they seek only declaratory and injunctive relief for the due process claim.33 In

light of this concession, the Court will deny the Motion for dismissal on sovereign immunity

grounds.

3. Failure to State a Claim

Finally, Defendants argue that Plaintiffs failed to raise a plausible due process

claim “because (1) [they] ha[ve] not been deprived of a liberty or property interest

protected by the Due Process Clause and (2) review of the [AJD] by this Court affords all

of the process that is due to [Plaintiffs].”34

“The first inquiry in every due process challenge is whether the plaintiff has been

deprived of a protected interest in ‘property’ or ‘liberty.’”35 According to the Supreme Court,

30 Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 373 (5th Cir. 1987).

31 Cambranis v. Blinken, 994 F.3d 457, 462 (5th Cir. 2021) (quoting Alabama-Coushatta Tribe of Tex. v.

United States, 757 F.3d 484, 488 (5th Cir. 2014)).

32 Rec. Doc. 27-1, pp. 16–17.

33 Rec. Doc. 29, pp. 4–5.

34 Rec. Doc. 27-1, pp. 17–18.

35 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citing Mathews v. Eldridge, 424 U.S. 319,

332 (1976)).

“[t]o have a property interest in a benefit, a person clearly must have more than an

abstract need or desire for it. He must have more than a unilateral expectation of it. He

must, instead, have a legitimate claim of entitlement to it.”36

As noted above, Plaintiffs allege that unwarranted delays by Defendants during

the AJD administrative appeal process resulted in lost use of the land and financial

opportunities.37 More specifically, Plaintiffs claim that despite regulations requiring

appeals to be completed within twelve months after acceptance of the appeal request,

Plaintiffs were “forced to withdraw their appeal of the AJD on March 15, 2024, nearly 26

months after the acceptance of the appeal by the USACE and 27 months after its

submittal.”38 Arguing for dismissal, Defendants characterize these alleged losses as

“indirect impacts [which] do not give rise to constitutional due process claims.”39

Defendants also argue that the right to an administrative appeal “is not an independent

property right that gives rise to a due process claim” because there is no recognized

property interest in a particular procedure in and of itself.40

In opposition, Plaintiffs cite the Supreme Court’s decision in United States ex rel.

Accardi v. Shaughnessy41 for the proposition that a due process violation occurs when an

agency fails to adhere to their own regulations and prejudice results.42 Plaintiffs explain

36 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

37 Rec. Doc. 1, ¶¶ 2, 39.

38 Id. at ¶¶ 15–17.

39 Rec. Doc. 27-1, p. 19.

40 Id.

41 347 U.S. 260 (1954).

42 Rec. Doc. 29, p. 6. Interpreting Accardi, the Fifth Circuit has noted that “‘[f]ailure to adhere to regulations

can constitute a denial of due process of law,’ not that it always does.” Leyva v. Barr, 838 F. App’x 13, 19

(5th Cir. 2020) (quoting Arzanipour v. I.N.S., 866 F.2d 743, 746 (5th Cir. 1989)). More specifically, an

agency’s failure to adhere to regulations may be a “per se denial of due process” only if “the regulation is

required by the constitution or a statute.” Id. Otherwise, a claimant must make an additional showing of

prejudice for a due process claim. Id. In this case, Plaintiffs do not appear to argue a per se due process

violation, instead focusing on the alleged prejudice resulting from Defendants’ actions.

that AJDs lapse after five years. Relying on Accardi and its progeny, Plaintiffs argue that

Defendants’ violation of regulations imposing a twelve-month maximum on appeal

decisions causes prejudice because the AJD will expire mid-litigation, potentially forcing

Plaintiffs to restart the entire process and resulting in “compounding economic harm” in

the form of “expert and attorney expenses and lost development on 31 acres.”43 Worded

differently, Plaintiffs state: “[E]xpiration [of the AJD] mid-case (by November 2026)

prejudices Plaintiffs by limiting Plaintiffs to an all or nothing outcome before this Court, as

they cannot utilize the AJD... to proceed with 404 permitting without restarting the entire

process (potentially another 3+ years) if this Court finds any CWA jurisdiction here.”44

Plaintiffs also claim prejudice from being forced to “begin the additional process and

expense of resorting to litigation before this Court for any review.”45 Plaintiffs assert that

they filed their appeal application “under the well-founded presumption that administrative

remedies require exhaustion to enable judicial review.”46

In reply, Defendants argue that Plaintiffs have no claim under Accardi because

they have failed to demonstrate any prejudice from the alleged appeal delays.47

Defendants assert that a claimant does not have to complete an administrative appeal

before challenging an AJD in court.48 Further, Defendants argue that “[e]ven if an

applicant were to appeal their approved JD administratively (as Hicks did here), they

could simultaneously seek judicial review.”49 Therefore, Defendants conclude that

43 Id. at pp. 6–7.

44 Id. at p. 7.

45 Id. (emphasis in original).

46 Id. at p. 8.

47 Rec. Doc. 32, pp. 11–12.

48 Id.

49 Id.

Plaintiffs were not prejudiced because they could have sought Article III review of the AJD

all along.

In U.S. Army Corps of Engineers v. Hawkes Co., Inc., the Supreme Court held that

AJDs constitute “final agency action” subject to judicial review under the APA.50 However,

the Court did not discuss whether a party must exhaust administrative remedies before

seeking judicial review of an AJD.51 The doctrines of finality and exhaustion are distinct:

[T]he finality requirement is concerned with whether the initial

decisionmaker has arrived at a definitive position on the issue

that inflicts an actual, concrete injury; the exhaustion

requirement generally refers to administrative and judicial

procedures by which an injured party may seek review of an

adverse decision and obtain a remedy if the decision is found

to be unlawful or otherwise inappropriate.52

With respect to exhaustion, the Supreme Court made clear in Darby v. Cisneros that an

administrative appeal “is a prerequisite to judicial review only when expressly required by

statute or when an agency rule requires appeal before review and the administrative

action is made inoperative pending that review.”53

Plaintiffs claim they “presumed” that exhaustion was required based on the

information found within the AJD itself. In the section outlining the appeal options, the AJD

provides: “If you disagree with the approved JD, you may appeal the approved JD under

the Corps of Engineers Administrative Appeal Process by completing Section II of this

form and sending the form to the division engineer.”54 However, Plaintiffs do not cite any

statute or regulation requiring exhaustion as contemplated under Darby. Further, it is clear

50 578 U.S. 590 (2016).

51 Id. at 596 (noting that the applicants administratively appealed before seeking judicial review).

52 Darby v. Cisneros, 509 U.S. 137, 144 (1993) (quoting Williamson County Regional Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 193 (1985)).

53 Id. at 154 (emphasis in original).

54 Rec. Doc. 1-3, p. 12.

at this point that Defendants have waived any potential exhaustion argument in their

briefing.55 Moreover, it is unclear why Plaintiffs waited more than two total years (and

more than one year after they claim the appeal decision was due) to file suit. The absence

of support for an exhaustion requirement undermines Plaintiffs’ position that the delay in

seeking judicial review was solely attributable to Defendants. In sum, the Court finds

Plaintiffs’ “presumption” of an exhaustion requirement based on the text of the AJD

providing that a party “may” administratively appeal the decision is insufficient, and

Plaintiffs have not made an adequate demonstration of prejudice to support a claim under

Accardi.

Setting Accardi aside, the Court agrees with Defendants that an administrative

appeal is not a property interest in the context of a procedural due process claim.56

Moreover, even assuming the presence of a protected property interest, this Court’s

review will provide Plaintiffs with constitutionally adequate process with respect to their

challenge of the ADJ.57, 58

55 See Rec. Doc. 32, pp. 11–12. See also Lewis v. United States Army Corps of Eng'rs, No. CV 18-1838,

2021 WL 1401756, at *2 (E.D. La. Apr. 14, 2021) (USACE waived any exhaustion objection by arguing that

there is no exhaustion requirement for seeking judicial review of an AJD).

56 See, e.g., Richardson v. Twp. of Brady, 218 F.3d 508, 517 (6th Cir. 2000) (citing United of Omaha Life

Ins. Co. v. Solomon, 960 F.2d 31, 34 (6th Cir. 1992) (rejecting the plaintiff’s argument that he had “a property

interest in the procedures themselves, and that by failing swiftly to execute its procedures the Township

has deprived him of that property right without due process.”). See also Allen v. Mecham, No. CIV.A. 05-

1007(GK), 2006 WL 2714926, at *3 (D.D.C. Sept. 22, 2006) (“While it is certainly true that AOUSC cannot

deprive the Plaintiff of property without a ‘fair hearing,’ neither that hearing itself nor the right to a hearing

can constitute protected property. … [A] number of courts have explicitly rejected Plaintiff's circular

argument that procedures may constitute property subject to due process protection.”) (collecting cases).

57 See Hodel v. Virginia Surface Min. & Reclamation Ass'n, Inc., 452 U.S. 264, 303 (1981) (quoting Ewing

v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950)) (“It is sufficient, where only property rights are

concerned, that there is at some stage an opportunity for a hearing and a judicial determination.”).

58 Defendants additionally argue that Plaintiffs could simply “disregard the [AJD] and discharge dredged or

fill material into the property that he contends is not jurisdictional under the CWA, thereby putting the burden

on the United States to bring an enforcement action in federal court to seek compliance with the CWA.”

Rec. Doc. 27-1, pp. 21–22. The Supreme Court expressly rejected this reasoning in Hawkes, 578 U.S. at

600.

Accordingly, the Court will grant the Motion and dismiss Plaintiffs’ procedural due

process claim.

C. EAJA

The EAJA provides that the court shall award attorney's fees and costs to a

“prevailing party” in a civil action brought against the United States “unless the court finds

that the position of the United States was substantially justified or that special

circumstances make an award unjust.”59

Defendants argue the EAJA claim should be dismissed because it is “not an

independent cause of action.”60 Defendants also argue that an EAJA claim would be

unripe because there is no “prevailing party” at this time, and there has been no

determination whether Defendants’ position was “substantially justified.”61

In the Complaint, Plaintiffs request fees and costs under the EAJA “upon the

resolution of the action.”62 In their Opposition brief, Plaintiffs clarify that the “EAJA request

is ancillary to APA/CWA review” and is not intended to be a “standalone” claim.63 The

Court will construe Plaintiffs’ reference to EAJA in the Complaint as part of the relief

sought rather than an independent claim subject to dismissal.64 Accordingly, Defendants’

Motion will be denied in this regard.

59 28 U.S.C. § 2412(d)(1)(A).

60 Rec. Doc. 27-1, pp. 23–24 (quoting Holley v. Blinken, No. 20-CV-18938, 2022 WL 951369, at *5 n.6

(D.N.J. Mar. 30, 2022)).

61 Id.

62 Rec. Doc. 1, ¶ 38.

63 Rec. Doc. 29, p. 5.

64 Defendants “do[ ] not oppose [Plaintiffs] filing an application for attorneys’ fees and costs under EAJA

‘should the time become appropriate.’” Rec. Doc. 32, p. 14.

III. CONCLUSION

For the foregoing reasons, the Motion for Partial Judgment on the Pleadings65 is

GRANTED IN PART and DENIED IN PART.

The Motion to dismiss the Plaintiffs’ procedural due process claim is GRANTED,

and the claim is hereby dismissed with prejudice.

The Motion is DENIED with respect to Plaintiffs’ request for relief under the EAJA.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this _4_t_h_ d a y o f _ _ _F_e_b_r_u_a_ry____, 2026.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

65 Rec. Doc. 27.