Franks v. Ross

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JERRY FRANKS; LAVERNE COFIELD; 

EASTON ACRES RESIDENTS

ASSOCIATION,

Plaintiffs-Appellants,

v.

WILLIAM G. ROSS, JR., Secretary for

the North Carolina Department of

Environment and Natural Resources,  No. 01-2354

in his official capacity; DEXTER

MATTHEWS, Director of Division of

Solid Waste Management, in his

official capacity; WAKE COUNTY;

WAKE COUNTY BOARD OF

COMMISSIONERS,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief Judge.

(CA-00-936-5-BO)

Argued: June 3, 2002

Decided: December 4, 2002

Before MOTZ and KING, Circuit Judges, and

Robert R. BEEZER, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit,

sitting by designation.

2 FRANKS v. ROSS

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge King wrote the opinion, in which Judge Motz and Senior

Judge Beezer joined.

COUNSEL

ARGUED: Marcus B. Jimison, Katherine Leigh Carpenter, LAND

LOSS PREVENTION PROJECT, Durham, North Carolina, for

Appellants. Michael R. Ferrell, Wake County Attorney, WAKE

COUNTY ATTORNEY’S OFFICE, Raleigh, North Carolina; Lauren

Murphy Clemmons, Assistant Attorney General, NORTH CARO-

LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellees. ON BRIEF: Shelley Tager Easton, Deputy County Attor-

ney, WAKE COUNTY ATTORNEY’S OFFICE, Raleigh, North Car-

olina; Roy Cooper, Attorney General, Nancy E. Scott, Assistant

Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-

TICE, Raleigh, North Carolina, for Appellees.

OPINION

KING, Circuit Judge:

Plaintiffs Franks, Cofield, and the Easton Acres Residents Associa-

tion (the "Plaintiffs") appeal from the district court’s October 2001

decision dismissing their complaint. The Plaintiffs sought injunctive

relief against the Wake County Board of Commissioners and Wake

County (collectively, "Wake County" or the "County"), as well as

from officials of the North Carolina Department of Environment and

Natural Resources (the "DENR Defendants"), to halt the construction

of a landfill in Holly Springs, North Carolina. The complaint alleged

that the actions of Wake County and the DENR Defendants in con-

nection with the landfill violated Title VI of the Civil Rights Act of

1964, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 1982,

and the Equal Protection Clause of the Fourteenth Amendment. In

addition, the Plaintiffs asserted a public policy challenge against the

County, pursuant to N.C. Gen. Stat. § 14-234 (the "State Claim").

FRANKS v. ROSS 3

The district court dismissed as untimely the Plaintiffs’ Title VI,

§ 1982, and Equal Protection claims against Wake County. The court

also dismissed the State Claim and the Title VIII challenge for failure

to state claims upon which relief could be granted. Finally, the court

relied on Eleventh Amendment sovereign immunity to dismiss the

Plaintiffs’ claims against the DENR Defendants. In disposing of the

case, the court also denied the Plaintiffs leave to amend their com-

plaint for a second time. Franks v. Ross, No. 5:00-CV-936-BO(3),

Order (E.D.N.C. Oct. 12, 2001) (the "Dismissal Order"). As explained

below, we affirm the court’s dismissal of the State Claim against

Wake County. However, we reverse its dismissal of the Title VI,

§ 1982, and Equal Protection claims against the County.1 Further, we

conclude the court erred in refusing to authorize an amendment of the

complaint and in determining that the DENR Defendants are entitled

to immunity.

I.

A.

This proceeding arises from the efforts of Wake County to con-

struct and operate a landfill in Holly Springs, North Carolina. These

efforts have followed a tortured path, and they implicate issues of

racial discrimination, conflicts of interest, administrative procedure,

and the timeliness and ripeness of claims.

The small town of Holly Springs is home to the largest percentage

of African Americans of any municipality in Wake County.2 Despite

having less than two percent of the County’s population, this African-

American community has long borne a disproportionate share of

Wake County’s landfills. In 1975, Wake County sited a 300-acre solid

waste landfill in Feltonsville, a neighborhood adjoining Holly

Springs. This landfill (the "Feltonsville Landfill") operated for over

twenty years. Holly Springs itself is presently home to three other

landfills.

1

In their appeal, the Plaintiffs have not contested the dismissal of their

Title VIII claim as to Wake County, and we do not address it here.

2

Wake County encompasses the major municipality of Raleigh, the

capital of the Tar Heel State.

4 FRANKS v. ROSS

In the early 1990s, Wake County decided to pursue the creation of

a new landfill in Holly Springs, designated as the "South Wake Land-

fill." In February 1999, the DENR issued the County a permit autho-

rizing construction of the South Wake Landfill (the "South Wake

Permit" or the "Permit"). The Plaintiffs promptly challenged the issu-

ance of the Permit in state administrative proceedings. Thereafter, in

December 2000, they instituted this proceeding in the Eastern District

of North Carolina, seeking injunctive relief against the County and

the DENR to halt construction of the South Wake Landfill. When

their claims were dismissed, the Plaintiffs filed this appeal. In our

review of the dismissal, we are obliged to accept as true the facts

alleged in the complaint.3 Those facts are further reviewed in relevant

part below.

B.

The Plaintiffs allege that Wake County has long engaged in a pat-

tern of intentional discrimination in the siting of undesirable landfills

near predominantly African-American communities. They also assert

that the DENR, "by approving and permitting sites for landfills . . .

near Black neighborhoods and communities," has engaged in a simi-

lar pattern of discrimination. The DENR has permitted at least four

other landfills in and around Holly Springs, "near areas primarily

occupied by minorities," i.e., the Feltonsville Landfill, the Browning-

Ferris Industries Landfill, the Cary Landfill, and the Holly Springs

Landfill.

The siting and permitting of the landfill at issue here began in

October 1990, when the Wake County Board of Commissioners

decided to purchase additional property in order to expand the

Feltonsville Landfill. One of the commissioners, a Mr. Adcock, voted

in favor of the land purchase, despite the fact that he owned eighty-

four acres of the land involved. On September 1, 1992, the Holly

Springs Board of Commissioners adopted a resolution granting per-

mission to the County to expand the Feltonsville Landfill. Once the

County received that permission, it sought approval from the DENR.

Prior to securing the DENR’s approval, however, new state and fed-

3

Anita’s N.M. Style Mexican Food, Inc. v. Anita’s Mexican Foods

Corp., 201 F.3d 314, 316 (4th Cir. 2000).

FRANKS v. ROSS 5

eral environmental regulations came into effect. These regulations

required all unlined landfills, such as the Feltonsville Landfill, to

close by January 1, 1998. Upon learning that the Feltonsville Landfill

would be forced to close, the County altered its proposed landfill proj-

ect, abandoning the expansion plan for the Feltonsville Landfill in

favor of the construction of an entirely new landfill. In December

1992, it submitted a site application plan to the DENR for the con-

struction of the South Wake Landfill. If completed, the South Wake

Landfill will spread across 471 acres, at a height of 280 feet.

On March 25, 1994, in the course of acquiring property on which

to build the South Wake Landfill, the County condemned the eighty-

four acre tract of land owned by Commissioner Adcock. On March

14, 1995, the DENR issued, pursuant to its regulations, a site suitabil-

ity letter for the Landfill. This letter notified the County that the site

was considered appropriate, and it authorized the County to apply to

the DENR for a permit to construct the South Wake Landfill. On

December 31, 1996, Wake County submitted to the DENR its appli-

cation for a permit.

The Plaintiffs assert that "the defendants . . . pursued every route

possible in order to prevent the plaintiffs from receiving adequate

notice and participating in discussions regarding the landfill at a

meaningful point in the process." Indeed, there was no public partici-

pation in the process until May 16, 1998, when the DENR, before rul-

ing on the County’s permit application, conducted a public hearing on

the proposed South Wake Landfill. Three days after the hearing, the

Holly Springs Board of Commissioners revoked its October 1992 res-

olution authorizing the County to expand the Feltonsville Landfill.4

Thereafter, in September 1998, the DENR inquired of the County

whether its construction of the South Wake Landfill would dispa-

rately impact minority communities. The County responded that there

would be no such disparate impact. On February 18, 1999, the DENR

issued the South Wake Permit, authorizing the County to construct

the South Wake Landfill.

4

While the Holly Springs Board of Commissioners had adopted its

1992 resolution granting the County permission to expand the Feltons-

ville Landfill, the Board has never approved construction of a new waste

disposal facility, such as the South Wake Landfill.

6 FRANKS v. ROSS

C.

The Plaintiffs’ challenges to the construction of the South Wake

Landfill have travelled a complicated path; they are ongoing both in

this Court and in the Court of Appeals of North Carolina. In March

1999, Plaintiff Franks filed a "contested case" petition with North

Carolina’s Office of Administrative Hearings, seeking both to set

aside the DENR’s issuance of the South Wake Permit and to enjoin

Wake County from taking any action with regard to the South Wake

Landfill.5 An Administrative Law Judge (the "ALJ"), ruling on a sum-

mary judgment motion, concluded that Wake County had violated

North Carolina law in the permitting process by, inter alia, failing to

procure Holly Springs’s permission to construct the new landfill and

failing to comply with the mandate of N.C. Gen. Stat. § 153A-136(c).

This statutory provision requires that a county board of commission-

ers, prior to selecting a new landfill site, consider alternative sites as

well as socioeconomic and demographic data, and conduct a public

hearing.6 Franks v. N.C. Dep’t of Env’t & Natural Res., 99 EHR

5

When a North Carolina state agency and a "person" are unable to

informally resolve a dispute between them, "either the agency or the per-

son may commence an administrative proceeding to determine the per-

son’s rights, duties, or privileges, at which time the dispute becomes a

‘contested case.’" N.C. Gen. Stat. § 150B-22. An Administrative Law

Judge ("ALJ") then issues a recommended decision and transfers the case

to the responsible agency for a final decision. Id. § 150B-34. The agency

must issue its final decision within 90 days of receiving the official

record; in the event it fails to meet the statutory deadline, a party may

seek a court order declaring the ALJ’s recommended decision the "final

agency decision." Id. § 150B-44 (amended 2000). Once a final agency

decision has been reached in a contested case, "any person who is

aggrieved . . . is entitled to judicial review of the decision." Id. § 150B-

43.

6

On July 22, 1992, while Wake County was seeking to expand the Fel-

tonsville Landfill, North Carolina enacted § 153A-136(c), which pro-

vides that a county board of commissioners shall:

consider alternative sites and socioeconomic and demographic

data and shall hold a public hearing prior to selecting or approv-

ing a site for a new sanitary landfill that receives residential solid

waste that is located within one mile of an existing sanitary land-

fill within the State.

FRANKS v. ROSS 7

0344, 380, Recommended Decision (Sept. 28, 1999) (the "Recom-

mended Decision"). The Recommended Decision required the DENR

to withdraw the South Wake Permit "until all procedural requirements

are met." Id. at 22. In November 1999, the ALJ transferred the case

to the DENR for a "final agency decision," pursuant to N.C. Gen.

Stat. § 150B-34. After the DENR failed to render its decision within

the ninety-day period mandated by the statute, Franks requested the

Wake County Superior Court to declare the Recommended Decision

to be the DENR’s final agency decision. The Superior Court agreed

with Franks and, on October 4, 2000, it concluded that the Recom-

mended Decision constituted the DENR’s final agency decision.

Franks v. N.C. Dep’t of Env’t & Natural Res., 00 CVS 3742, Order

(Wake County Super. Ct. Oct. 4, 2000).

Wake County then initiated a separate proceeding in Wake County

Superior Court, pursuant to N.C. Gen. Stat. § 150B-43, appealing the

DENR’s final agency decision, which revoked the South Wake Per-

mit. That court, on March 16, 2001, reversed the DENR’s final

agency decision, and it ordered the DENR to reissue the Permit.

County of Wake v. N.C. Dep’t of Env’t & Natural Res., 00 CVS

11760, Petitioner’s Proposed Order (entered by Wake County Super.

Ct. Mar. 16, 2001) (the "Permit Reissuance Decision"). Franks then

appealed the Permit Reissuance Decision to the Court of Appeals of

North Carolina, where it is presently pending. The appeal was heard

by the Court of Appeals on April 17, 2002, and the issues before the

court include, inter alia, the applicability of § 153A-136(c) to the

South Wake Landfill dispute, as well as whether Holly Springs was

entitled to withdraw its 1992 approval of the expansion of the

Feltonsville Landfill.

N.C. Gen. Stat. § 153A-136(c). Prior to submitting its permit application

for the South Wake Landfill to the DENR in 1996, Wake County failed

to conduct a public hearing to inform the residents of Holly Springs of

the County’s original plan to expand the Feltonsville Landfill, or of its

plan to build the South Wake Landfill. The applicability of § 153A-

136(c) to the South Wake Landfill is disputed by the parties, and applica-

tion of the statute is a primary issue being litigated in the ongoing state

proceedings.

8 FRANKS v. ROSS

D.

On December 21, 2000, after the South Wake Permit had been

revoked and while the Superior Court’s review of the DENR’s "final

agency decision" was pending, the Plaintiffs filed suit against the

County and the DENR in the Eastern District of North Carolina, seek-

ing to enjoin the entire South Wake Landfill process. In their initial

complaint, the Plaintiffs maintained that the siting of the South Wake

Landfill violated Title VI,7 Title VIII,8 § 1982,9 and the Equal Protec-

tion Clause. In addition, the complaint asserted the State Claim, main-

taining that Commissioner Adcock had violated North Carolina public

policy, specifically N.C. Gen. Stat. § 14 234, by participating in the

siting of the South Wake Landfill on his own land, rendering the con-

demnation transaction void. By their complaint, the Plaintiffs

requested the court to declare the siting, approval, and funding of the

South Wake Landfill to be illegal, and they further requested that the

court "[e]njoin Defendants from constructing, operating, and/or main-

taining the South Wake Landfill." After Wake County and the DENR

separately moved to dismiss the complaint for want of jurisdiction

and for failure to assert any claims upon which relief could be

granted, the Plaintiffs amended their complaint, dismissing their

claims against the DENR itself and naming instead the DENR Defen-

dants (the "First Amended Complaint").10 On May 29, 2001, the

7

The pertinent part of Title VI is codified at 42 U.S.C. § 2000d and

provides that "[n]o person in the United States shall, on the ground of

race . . . be subjected to discrimination under any program or activity

receiving Federal financial assistance." 42 U.S.C. § 2000d.

8

The relevant section of Title VIII is codified at 42 U.S.C. § 3604(b)

and provides that it is unlawful "[t]o discriminate against any person in

the terms, conditions, or privileges of sale or rental of a dwelling . . .

because of race." 42 U.S.C. § 3604(b).

9

Pursuant to § 1982 of Title 42 of the United States Code "[a]ll citizens

. . . have the same right, in every State . . . , as is enjoyed by white citi-

zens thereof to inherit, purchase, lease, sell, hold, and convey real and

personal property." 42 U.S.C. § 1982.

10

The First Amended Complaint was filed on February 26, 2001, pur-

suant to Rule 15(a) of the Federal Rules of Civil Procedure, and it named

DENR Secretary William G. Ross, Jr., and a DENR Director, William

Meyer, as defendants in their official capacities. Subsequently, Dexter

Matthews replaced Mr. Meyer as Director, and he is now a defendant.

Thereafter, on March 8, 2001, the Plaintiffs dismissed their claims

against the DENR without prejudice.

FRANKS v. ROSS 9

Plaintiffs requested leave to amend a second time, seeking to file their

"Second Amended Complaint," in order to respond to the Permit

Reissuance Decision and to assert a claim under 42 U.S.C. § 1983.

The court, however, by its Order of October 12, 2001, denied the

motion to amend, concluding that the amendment would "clearly prej-

udice" the DENR Defendants. Dismissal Order at 11.

The Dismissal Order also granted the motions of Wake County and

the DENR Defendants to dismiss the First Amended Complaint. The

court concluded that the Title VI, § 1982, and Equal Protection claims

against Wake County were barred by North Carolina’s three year stat-

ute of limitations. Id. at 5-7. In addition, the court ruled that both the

State Claim and the Title VIII challenge against the County failed to

pass muster under Rule 12(b)(6) of the Federal Rules of Civil Proce-

dure. Id. at 7-9. The court further determined that the DENR Defen-

dants were entitled to sovereign immunity, and it dismissed the claims

asserted against them. Id. at 9-11. The Plaintiffs appeal, contending

that the court erred in dismissing their claims and that it abused its

discretion in declining to grant them leave to file their Second

Amended Complaint. We possess jurisdiction pursuant to 28 U.S.C.

§ 1291.

II.

A.

The Plaintiffs raise three primary contentions in their appeal. First,

they assert that the court abused its discretion in refusing to grant

them leave to amend. Second, they maintain that the district court

improperly dismissed their claims against Wake County. And third,

they contend that the DENR Defendants are not entitled to sovereign

immunity. We begin our analysis of the issues by explaining the

applicable standards of review.

B.

First, we review for abuse of discretion the denial of a motion for

leave to amend a complaint. HCMF Corp. v. Allen, 238 F.3d 273,

276-77 (4th Cir. 2001). Under Rule 15(a), which governs such

10 FRANKS v. ROSS

requests, leave to amend a complaint "shall be freely given when jus-

tice so requires." Fed. R. Civ. P. 15(a).

In certain situations we review de novo a district court’s dismissal

of a claim on statute of limitations grounds. United States v. United

Med. and Surgical Supply Corp., 989 F.2d 1390 (4th Cir. 1993).

Where, as here, the challenge is not to the existence of certain facts,

but instead rests on "whether those facts demonstrate a failure [to

bring a timely claim,] resolution . . . turns on questions of law which

are reviewed de novo." Id. at 1398.

We likewise review de novo the dismissal of a complaint for fail-

ure to state a claim upon which relief could be granted. GE Inv. Pri-

vate Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.

2001). Such a motion to dismiss, made under Rule 12(b)(6), "should

not be granted unless it appears certain that the plaintiff can prove no

set of facts which would support its claim and would entitle it to

relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.

1993). In considering such a motion, "the court should accept as true

all well-pleaded allegations and should view the complaint in a light

most favorable to the plaintiff." Id.

Finally, the existence of sovereign immunity is a question of law

that we review de novo. Research Triangle Inst. v. Bd. of Governors

of the Fed. Reserve Sys., 132 F.3d 985, 987 (4th Cir. 1997). In addi-

tion, we review de novo a "district court’s legal determination [of]

whether Ex parte Young relief is available." CSX Transp., Inc. v. Bd.

of Pub. Works of W. Va., 138 F.3d 537, 541 (4th Cir. 1998).

We address each of the Plaintiffs’ contentions in turn.

III.

A.

We first consider the Plaintiffs assertion that the district court erred

in refusing to permit the filing of their Second Amended Complaint.

Although we review the denial of a motion to amend for abuse of dis-

cretion, a court abuses its discretion "by resting its decision on a

FRANKS v. ROSS 11

clearly erroneous finding of a material fact." Quince Orchard Valley

Citizens Ass’n v. Hodel, 872 F.2d 75, 78 (4th Cir. 1989) (internal quo-

tation and citation omitted). As explained below, the court’s conclu-

sion that the defendants would be clearly prejudiced was based on an

error of material fact.

On May 29, 2001, the Plaintiffs sought leave to file their Second

Amended Complaint, in order to respond to the Superior Court’s Per-

mit Reissuance Decision and to add a § 1983 claim. In their proposed

Second Amended Complaint, the Plaintiffs sought to request the dis-

trict court to "order [the DENR Defendants] to revoke and withdraw

the permit for the South Wake Landfill." The court declined to grant

leave to amend, however, on the ground that the amendment would

"clearly prejudice" the DENR Defendants. Dismissal Order at 11. The

court based this conclusion on its mistaken belief that the Plaintiffs

had not sought leave to amend until "nearly seven months" after the

Permit Reissuance Decision. Id. Specifically, the court believed that

the Superior Court had issued its decision on October 4, 2000, and

that the Plaintiffs had not sought leave to amend until April 27, 2001.11

Id. In fact, however, the Superior Court had issued its Permit Reissu-

ance Decision on March 16, 2001, rather than on October 4, 2000,

and the Plaintiffs had filed their motion to amend on May 29, 2001.

Thus, contrary to the district court’s understanding, the Plaintiffs had

not waited seven months to seek to amend their complaint, but they

had instead sought such leave less than three months after the Permit

Reissuance Decision.

Under the applicable Rule, "leave [to amend a complaint] shall be

freely given when justice so requires." Fed. R. Civ. P. 15(a). In fact,

such leave "should be denied only when the amendment would be

prejudicial to the opposing party, there has been bad faith on the part

of the moving party, or the amendment would be futile." Edwards v.

City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (emphasis in

original) (internal quotation and citation omitted). In these circum-

11

On October 4, 2000, the Superior Court entered its Order deciding

that the Recommended Decision of the ALJ (revoking the DENR’s issu-

ance of the South Wake Permit) constituted the final agency decision of

the DENR. The Permit Reissuance Decision was rendered in a separate

proceeding five months later.

12 FRANKS v. ROSS

stances, the filing of the Second Amended Complaint, less than three

months after entry of the Permit Reissuance Decision, could hardly

have prejudiced the defendants. And in light of the significance of the

Permit Reissuance Decision, the filing of the Second Amended Com-

plaint should have been authorized. As Judge Ervin properly observed

in Quince Orchard, supra, a decision premised on a "clearly errone-

ous finding of material fact" constitutes an abuse of discretion.12 872

F.2d at 78.

B.

In dismissing the Plaintiffs’ claims against Wake County, the dis-

trict court concluded that the Plaintiffs’ Title VI, § 1982 and Equal

Protection claims (the "Federal Claims") were filed in an untimely

manner. It then decided that the State Claim failed to pass muster

under Rule 12(b)(6). In determining the propriety of the court’s dis-

missal of these claims against Wake County, we first assess the stat-

ute of limitations issue.

1.

In December 2000, the Plaintiffs filed their initial complaint

against Wake County. The court concluded that North Carolina’s

three-year statute of limitations, found in N.C. Gen. Stat. § 1-52(16),

applied to the Federal Claims, and that the limitations period began

to run in either 1991 or 1992, "when the County made the decision

to site the landfill and began to purchase property." Dismissal Order

at 6. Because the Plaintiffs filed their Federal Claims more than eight

years later, the court found those claims to be untimely. While the

court correctly identified the applicable limitations period, it erred in

concluding that the period started to run in 1991 or 1992.

First of all, the predicate bases for the Federal Claims do not con-

tain an explicit limitations period. The Federal Claims are accordingly

governed by the limitations period of the most analogous state stat-

12

Wake County and the DENR Defendants contend that, in any event,

the court’s refusal to authorize the amendment should be affirmed

because it would have been futile. This Court, however, is ill-suited to

decide a claim of futility not addressed by the district court.

FRANKS v. ROSS 13

utes. As Chief Judge Wilkinson explained in Jersey Heights Neigh-

borhood Association v. Glendening, 174 F.3d 180, 187 (4th Cir.

1999), "the personal nature of the right against discrimination justifies

applying the state personal injury limitations period." In this instance,

the district court correctly concluded that the applicable statute of lim-

itations for personal injury actions in North Carolina is three years.

N.C. Gen. Stat. § 1-52(16).

The question of when a statute of limitations is triggered is one of

federal law. As the Third Circuit has observed, a cause of action

accrues for purposes of the statute of limitations "when it is suffi-

ciently ripe that one can maintain suit on it." Whittle v. Local 641,

Int’l Bhd. of Teamsters, 56 F.3d 487, 489 (3d Cir. 1995); see also Bell

v. Aerodex, 473 F.2d 869 (5th Cir. 1973) ("[A] cause of action

accrues when the plaintiff could first have successfully maintained a

suit based on that cause of action."); Skyberg v. United Food & Com-

mercial Works Int’l Union, 5 F.3d 297, 301 (8th Cir. 1993) (same);

Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 163 (2d Cir. 1989)

(same). Wake County contends that the limitations period began to

run "at the latest by the time Wake County submitted its site plan

application to the DENR in December, 1992." The Plaintiffs, by con-

trast, maintain that the period was not triggered until the DENR

issued the South Wake Permit on February 18, 1999, which autho-

rized the construction of the South Wake Landfill.

Put simply, the applicable statute of limitations could not have

been triggered in either 1991 or 1992, because the Plaintiffs’ claims

would not then have been ripe for determination. See Whittle, 56 F.3d

at 489. In evaluating the ripeness of claims for judicial review, courts

must balance "the ‘fitness of the issues for judicial decision’ and the

‘hardship to the parties of withholding court consideration.’" Ohio

Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998) (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). As our Judge

Russell properly explained, "[a] case is fit for judicial decision . . .

where the agency rule or action giving rise to the controversy is final

and not dependent upon future uncertainties or intervening agency

rulings." Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976

F.2d 203, 208 (4th Cir. 1992) (citing Abbott Labs., 387 U.S. at 149).

Therefore, in assessing when the limitations period was triggered in

14 FRANKS v. ROSS

this dispute, we must first ascertain when the final agency action

occurred that gave rise to this controversy.

The permitting process for the South Wake Landfill involved two

essential steps: (1) the actions of the County in siting the Landfill and

acquiring property; and (2) the approval of the DENR, in the form of

its site suitability letter and its issuance of the Permit on February 18,

1999. As we have discussed, supra at 4-5, Wake County and the

DENR had an interwoven involvement in the permitting process over

an extended period. As such, the participation of the County and the

DENR are properly viewed as two parts of a single permitting pro-

cess. This controversy was not ripe for judicial review until the com-

pletion of the final step of the process, i.e., the DENR’s issuance of

the South Wake Permit. See New Hanover Township v. U.S. Army

Corps of Eng’rs, 992 F.2d 470 (3d Cir. 1993) (concluding that the

challenge to defendant’s issuance of a general permit to landfill cor-

poration was not ripe for review because corporation needed further

approval from state agency prior to proceeding with landfill project).

Indeed, it would have been premature for the Plaintiffs to file their

complaint in the early 1990s, or at any time prior to the DENR’s issu-

ance of the South Wake Permit in 1999. Had the DENR declined to

issue the Permit, the South Wake Landfill project could not have gone

forward, and the district court would have been unnecessarily entan-

gled in what the Supreme Court has aptly labeled an "abstract dis-

agreement[ ]." Abbott Labs., 387 U.S. at 148.

The parties disagree on the significance to this appeal of our han-

dling of a statute of limitations issue in Jersey Heights Neighborhood

Association v. Glendening, 174 F.3d 180 (4th Cir. 1999). In that situa-

tion, African-American residents of Maryland challenged the routing

of a proposed highway bypass. The Maryland State Highway Admin-

istration had studied alternate routes, and in May 1989 it issued its

Final Environmental Impact Statement, recommending the challenged

route. In August 1989, the Federal Highway Administration issued its

Record of Decision ("ROD") approving the proposed routing. We

concluded that the statute of limitations was triggered by the issuance

of the ROD, despite the fact that the bypass required additional per-

mits, because on the "fundamental question of where the highway

would be located, the ROD . . . signaled the end of the decisionmak-

ing process." Id. at 186. Further, we found ripeness as of the issuance

FRANKS v. ROSS 15

of the ROD because "there was no obvious factual contingency that

put construction seriously in doubt." Id. at 188.

In this case, by contrast, the County’s siting of the Landfill was a

preliminary step; there remained several obvious factual contingen-

cies that put the Landfill’s construction in serious doubt. Before

granting its approval for the Landfill, the DENR was required to fol-

low additional procedural steps and to consider numerous relevant

factors, including whether the Landfill would disparately impact

minority communities. The siting of the Landfill did not conclude the

decisionmaking process on the project. Thus, a challenge to the Land-

fill was not ripe for review, and the statute of limitations did not begin

to run, until the DENR issued the South Wake Permit on February 18,

1999.13 While the siting decisional process in Jersey Heights ended

with the ROD, this process carried through to the issuance of the

South Wake Permit. Thus, it is with the issuance of that Permit that

the statute of limitations began to run. See Whittle, 56 F.3d at 489

(concluding that limitations period commences to run when claim is

sufficiently ripe to bring cause of action).

In sum, the Federal Claims against Wake County became ripe for

review on February 18, 1999, when the DENR issued the South Wake

Permit, and the Plaintiffs were entitled to assert their claims within

three years of that date. They filed their complaint less than three

years later, on December 21, 2000, and hence it was timely. Thus, the

court erred in dismissing the Federal Claims against Wake County on

statute of limitations grounds.

13

The Eleventh Circuit, in a decision relied on by the Defendants, con-

cluded that an applicable statute of limitations was triggered when a

county board selected a landfill site, rather than when a state environ-

mental agency issued its permit. Rozar v. Mullis, 85 F.3d 556 (11th Cir.

1996). The court viewed its proper focus as "the time of the discrimina-

tory act" rather than when "the consequences of the act become painful."

Id. at 563. Our analysis differs from Rozar because the discriminatory act

that is under review must be the final siting approval, not just the siting

vote, in line with the requirement that there be "no obvious factual con-

tingency" that puts a particular injury in doubt. Jersey Heights, 174 F.3d

at 188.

16 FRANKS v. ROSS

2.

The Plaintiffs also contest the district court’s dismissal of the State

Claim, which charged Wake County with contravening North Caro-

lina public policy. The Plaintiffs alleged that, in Wake County’s effort

to acquire land to expand the Feltonsville Landfill, Commissioner

Adcock "participated in the discussion and seconded the purchase of

property even though his wife and he owned 84 acres that would . . .

be purchased for the landfill expansion." In March 1994, the County

condemned the eighty-four acres owned by Commissioner Adcock for

use in the South Wake Landfill, and Adcock received a judgment

against the County for over $400,000. The Plaintiffs maintain that this

transaction violated North Carolina public policy, specifically N.C.

Gen. Stat. § 14-234, which prohibits county commissioners from

receiving profits by entering into contracts with their county.14 The

district court dismissed the State Claim, concluding that, while § 14-

234 prohibits contracts between a commissioner and his county,

Commissioner Adcock’s profit resulted not from a contract, but rather

from a land condemnation. Dismissal Order at 8-9.

We agree with the district court that § 14-234 speaks of contracts,

and that it does not specifically prohibit a commissioner from profit-

ing from the condemnation of his land. While we are troubled by the

allegations surrounding Commissioner Adcock’s conduct, the revi-

sion of North Carolina’s public policy is not within our bailiwick. As

such, the court did not err in dismissing the State Claim.

C.

Finally, we turn to the Plaintiffs’ claims against the DENR Defen-

dants, which the district court dismissed upon concluding that they

14

Section 14-234 of the General Statutes of North Carolina provides in

relevant part that:

[i]f any . . . commissioner [of] . . . any county . . . make[s] any

contract for his own benefit, under such authority, or be in any

manner concerned or interested in making such contract, or in

the profits thereof, . . . he shall be guilty of a misdemeanor.

N.C. Gen. Stat. § 14-234.

FRANKS v. ROSS 17

were entitled to sovereign immunity under the Eleventh Amendment.

In so ruling, the court rejected the Plaintiffs’ contention that the doc-

trine of Ex parte Young, 209 U.S. 123 (1908), provided an exception

to sovereign immunity in this case. Dismissal Order at 10.

It is established that sovereign immunity protects a state from being

sued by one of its own citizens without its consent. Alden v. Maine,

527 U.S. 706, 727-28 (1999). The long-standing doctrine of Ex parte

Young, however, "allows private citizens, in proper cases, to petition

a federal court to enjoin State officials in their official capacities from

engaging in future conduct that would violate the Constitution or a

federal statute." Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002).

Specifically, Ex parte Young authorizes "suits against state officers

for prospective equitable relief from ongoing violations of federal

law." Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir. 2001). To deter-

mine whether the Ex parte Young doctrine is applicable, as the

Supreme Court recently observed, a court "need only conduct a

straightforward inquiry into whether the complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as pro-

spective." Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., ___ U.S.

___, 122 S. Ct. 1753, 1760 (2002) (internal quotation and citation

omitted).

In their First Amended Complaint, the Plaintiffs repeatedly request

injunctive relief against the DENR Defendants. They specifically

seek, for example, "declaratory and injunctive relief against the North

Carolina Department of Environment and Natural Resources and the

Wake County Board of Commissioners." Further, they request that

the court "[e]njoin Defendants from constructing, operating and/or

maintaining the South Wake Landfill on the site which is the subject

of this lawsuit." The court concluded, however, that these allegations

fail to satisfy Ex parte Young because, when the Plaintiffs filed their

First Amended Complaint on February 26, 2001, naming the DENR

Defendants, the South Wake Permit had been revoked by the Superior

Court’s October 4, 2000, decision. Dismissal Order at 10; see Franks

v. N.C. Dep’t of Env’t & Natural Res., 00 CVS 3742, Order (Wake

County Super. Ct. Oct. 4, 2000) (making Recommended Decision the

final agency decision of the DENR). Although the South Wake Per-

mit had been reissued and was viable on October 12, 2001 (when the

court refused to authorize the filing of the Second Amended Com-

18 FRANKS v. ROSS

plaint), the court nonetheless concluded that the absence of a valid

landfill permit on February 26, 2001, when the Plaintiffs filed their

First Amended Complaint, left nothing to be enjoined. Dismissal

Order at 10. As an additional rationale, the court noted that the Plain-

tiffs sought to enjoin the construction, operation, and maintenance of

the South Wake Landfill, but that the DENR has no responsibility for

such things and hence could not be enjoined from doing them. Id. at

5 n.4.

First, the district court incorrectly concluded that Ex parte Young

does not apply here. The court determined that, because the South

Wake Permit had been revoked by the Superior Court when the First

Amended Complaint was filed, there was no ongoing violation of fed-

eral law to be enjoined. As discussed above, the Plaintiffs requested

leave to amend in order to respond to the reissuance of the South

Wake Permit, and when the court entered its Dismissal Order on

October 12, 2001, the South Wake Permit was viable. Regardless of

whether the court correctly concluded that the First Amended Com-

plaint did not allege an ongoing violation of federal law, the allega-

tions in the Second Amended Complaint should have been considered

in determining whether there was a jurisdictional defect. See Fed. R.

Civ. P. 15(d); Rowe v. United States Fid. & Guar. Co., 421 F.2d 937

(4th Cir. 1970) (explaining propriety of allowing supplemental plead-

ing under Rule 15(d) to cure a defect in the initial complaint).

Under Rule 15(d), a party may supplement its complaint "even

though the original pleading is defective in its statement of a claim

for relief or defense."15 Id. Various courts have concluded that "re-

15

A supplemental pleading differs from an amended pleading because

it relates to matters occurring subsequent to the filing of the initial com-

plaint. Fed. R. Civ. P. 15(d). To the extent that the Second Amended

Complaint responds to the Permit Reissuance Decision, it constituted a

supplemental pleading. This distinction is of little practical significance,

however, because the standards used by a district court in ruling on a

motion to amend or on a motion to supplement are nearly identical. In

either situation, leave should be freely granted, and should be denied

only where "good reason exists . . . , such as prejudice to the defendants."

Walker v. United Parcel Serv., 240 F.3d 1268, 1278 (10th Cir. 2001)

(internal quotation and citation omitted); see also Bates v. W. Elec., 420

FRANKS v. ROSS 19

quiring [a] plaintiff to go through the needless formality and expense

of instituting a new action when events occurring after the original fil-

ing indicated he had a right to relief [is] inconsistent with the philoso-

phy of the federal rules." 6A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1505 (2d ed. 1990) (citing cases).

For example, in Security Insurance Co. of New Haven, Connecticut

v. United States ex rel. Haydis, 338 F.2d 444 (9th Cir. 1964), the

plaintiff filed his complaint prior to a mandatory ninety-day waiting

period required by law. He then filed a supplemental pleading, more

than a year later, after the statute of limitations had expired. The

defendants contended, alternatively, that the supplemental pleading

was time-barred or, if it was found to relate back, the complaint was

filed prematurely. Id. at 444. The court, viewing this argument as

absurd, observed that "[n]othing but the most compelling authority

. . . would induce us to stay on this legal merry-go-round." Id.

Indeed, the filing of a supplemental pleading is an appropriate

mechanism for curing numerous possible defects in a complaint. See

Wilson v. Westinghouse Elec. Corp., 838 F.2d 286 (8th Cir. 1988)

(concluding that the plaintiff’s amended complaint cured ripeness

defect in original complaint); Lyman v. Livingston, 257 F. Supp. 520,

525 (D. Del. 1966) (explaining that plaintiff was entitled to supple-

ment complaint to demonstrate that she had made mandatory demand

upon corporation and thereby had standing to bring stockholder deriv-

ative suit); Ridgeway v. Int’l Bhd. of Elec. Workers, 466 F. Supp. 595

(N.D. Ill. 1979) (allowing amendment to add party in order to cure

defect in Title VII claim); Bates v. W. Elec., 420 F. Supp. 521 (E.D.

Pa. 1976) (permitting plaintiffs to file amended complaint to demon-

strate that, subsequent to filing of initial complaint, they complied

with jurisdictional prerequisites of Title VII).

Even assuming, as the district court found, that the First Amended

Complaint did not allege an ongoing violation of federal law, the

F. Supp. 521 (E.D. Pa. 1976). In addition, we review both a denial of

leave to amend and a denial for leave to supplement for abuse of discre-

tion. See Rowe v. United States Fid. & Guar. Co., 421 F.2d 937 (4th Cir.

1970); Edwards v. City of Goldsboro, 178 F.3d at 242; see also Burns

v. Exxon Corp., 158 F.3d 336 (5th Cir. 1998).

20 FRANKS v. ROSS

Plaintiffs alleged an ongoing violation, as required by Ex parte

Young, in their Second Amended Complaint. As we discussed earlier,

supra at 10-12, the court should have authorized the filing of the Sec-

ond Amended Complaint. And had it been filed, it would have

resolved any potential Eleventh Amendment issue. Under the Second

Amended Complaint, the Plaintiffs appropriately sought prospective

injunctive relief against the DENR Defendants, and the court improp-

erly dismissed the claims against them.

Second, we are unable to accept the district court’s conclusion that

the Ex parte Young doctrine does not apply to the DENR Defendants

because the Plaintiffs sought only to enjoin the construction, opera-

tion, and maintenance of the South Wake Landfill. While the DENR

itself would not be "constructing, operating, and/or maintaining the

South Wake Landfill," the Plaintiffs were not required to present a

perfectly drafted complaint in order to survive a motion to dismiss.

See Anderson v. Found. for Advancement, Educ. & Employment of

Amer. Indians, 155 F.3d 500, 505 (4th Cir. 1998) (explaining that

notice pleading requires a complaint to be read liberally in favor of

the plaintiff); see also Fed R. Civ. P. 8(f) ("All pleadings shall be so

construed as to do substantial justice."). Of course, the Plaintiffs were

obliged to give notice to the defendants that they sought to enjoin the

DENR Defendants’ involvement in the South Wake Landfill. And

they fulfilled that obligation by asserting that "[t]his action challenges

defendants’ approval, funding and construction of a landfill in plain-

tiffs’ community . . . [and] [p]laintiffs seek declaratory and injunctive

relief against the North Carolina Department of Environment and

Natural Resources." (emphasis added). In these circumstances, the

Plaintiffs adequately pleaded their request for injunctive relief against

the DENR Defendants. Cf. Martin v. Deiriggi, 985 F.2d 129, 135 (4th

Cir. 1993) (concluding that plaintiff placed defendant on notice of liq-

uidated damages claim because "[t]he six page complaint at issue here

discussed liquidated damages in two different paragraphs").

This case is not unique: the DENR Defendants are state officials

of North Carolina, acting in their official capacities. The Plaintiffs

simply seek to enjoin them from engaging in what are alleged to be

ongoing violations of federal law. The Plaintiffs adequately asserted

claims for injunctive relief against the DENR Defendants under Ex

parte Young, and the court erred in dismissing those claims.

FRANKS v. ROSS 21

IV.

Pursuant to the foregoing, we reverse the district court’s denial of

leave to file the Second Amended Complaint, its dismissal of the Fed-

eral Claims against Wake County, and its award of sovereign immu-

nity to the DENR Defendants. We affirm its dismissal of the State

Claim against Wake County, and we remand for such further proceed-

ings as may be appropriate.16

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED

16

We leave to the parties and the district court any issue of whether

abstention may be appropriate in the circumstances presented here.