Petition for Writ of Certiorari — William L. Huntress, et al., Petitioners v. United States
Supreme Court briefSep 30, 2020
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NO. 20–_________
IN THE
Supreme Court of the United States
WILLIAM L. HUNTRESS AND ACQUEST
DEVELOPMENT, LLC,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for A Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
GEORGE ROBERT BLAKEY
JOHN J. BURSCH
WILLIAM J. & DOROTHY K.
Counsel of Record
O’NEILL PROFESSOR OF LAW BURSCH LAW PLLC
EMERITUS, NOTRE DAME
9339 Cherry Valley
Avenue SE, #78
LAW SCHOOL*
8630 East Monterosa Avenue Caledonia, MI 49316
(616) 450-4235
Scottsdale, AZ 85251
jbursch@burschlaw.com
(574) 514-8220
*For identification only
Counsel for Petitioners
(Additional counsel on inside cover)
GARY T. CORNWELL
THE CORNWELL LAW FIRM
900 North Rainbow
Ranch Road
Wimberly, TX 78676
(409) 659-7788
BRADLEY R. CAHOON
DURHAM JONES & PINEGAR
111 South Main Street, Suite 2400
Salt Lake City, UT 84111
(801) 415-3000
i
QUESTIONS PRESENTED
In 2006, this Court rejected the EPA’s Clean
Water Act jurisdiction over a wetland that does not
abut navigable-in-fact waters. Sackett v. E.P.A., 566
U.S. 120, 123–24 (2012) (explaining Rapanos v. United States, 547 U.S. 715 (2006)). Yet the EPA filed a
civil action in 2009 and a felony criminal indictment
in 2011 against Petitioners for alleged violations
related to purported wetlands located miles from
navigable waters. After a court dismissed the indictment for the Government’s grand-jury interference,
the Government re-indicted in 2013—after Sackett.
That indictment was dismissed in 2016.
Petitioners filed this Federal Tort Claims Act suit
for abuse of process and malicious prosecution. That
Act creates subject-matter jurisdiction and waives
sovereign immunity for United States employees’ negligent or wrongful conduct, subject to a few exceptions,
including the exercise of “a discretionary function.” 28
U.S.C. 2680(a). But the Act also includes a lawenforcement proviso that clarifies the Act’s provisions
“shall apply to any claim” for “abuse of process[ ] or
malicious prosecution.” 28 U.S.C. 2680(h) (emphasis
added). The court of appeals picked § 2680(a) over
§ 2680(h) and dismissed. That ruling presents two
recurring, important questions for this Court’s review:
1. Whether the discretionary-function exception
nullifies the law-enforcement proviso (as four circuits
have now held), limits that proviso (as one circuit has
held), or yields to it (as one circuit has held).
2. Whether the discretionary-function exemption
applies when government officials act outside their
jurisdiction.
ii
PARTIES TO THE PROCEEDING
Petitioners are William L. Huntress and Acquest
Development, LLC.
Respondent is the United States of America.
LIST OF ALL PROCEEDINGS
1. U.S. Court of Appeals for the Second Circuit,
No. 19-1147-cv, William L. Huntress, Acquest
Development, LLC v. United States of America,
judgment entered April 30, 2020, en banc rehearing
denied July 1, 2020.
2. U.S. District Court for the Southern District of
New York, No. 18-cv-2974, William L. Huntress, et al.
v. United States, final judgment entered March 29,
2019.
CORPORATE DISCLOSURE STATEMENT
Petitioner Acquest Development, LLC, has no
parent corporation or publicly held company that
owns 10% or more of its stock.
iii
TABLE OF CONTENTS
Questions Presented .................................................... i
Parties to the Proceeding ........................................... ii
List of All Proceedings ............................................... ii
Corporate Disclosure Statement ............................... ii
Petition Appendix Table of Contents.......................... v
Table of Authorities.................................................... vi
Opinions Below ............................................................ 1
Jurisdiction .................................................................. 1
Statutory Provisions Involved .................................... 2
Introduction ................................................................. 4
Statement .................................................................... 8
A. Petitioners and their business ............................. 8
B. The disputed properties ........................................ 9
C. Tensions increase ................................................ 11
D. The 2011 criminal indictment ............................ 12
E. The 2013 re-indictment ...................................... 14
F. The costs of the EPA’s bullying ......................... 15
G. Proceedings below ............................................... 16
H. Postscript............................................................. 18
iv
TABLE OF CONTENTS—Continued
Reasons for Granting the Petition ............................ 19
I.
The Second Circuit’s decision exacerbates
a deep and mature circuit split ....................21
II. The Second Circuit’s decision makes a
hash of the Federal Tort Claims Act’s text
and
effectively
writes
the
lawenforcement proviso out of the Act ..............25
III. The discretionary-function exception does
not shield federal law-enforcement
officers from acting without jurisdiction .....28
IV. This case is an ideal vehicle to resolve the
circuit conflict ...............................................31
CONCLUSION .......................................................... 34
v
PETITION APPENDIX TABLE OF CONTENTS
United States Court of Appeals for the
Second Circuit,
Summary Order in 19-1147,
Issued April 30, 2020 .........................................1a–6a
United States District Court for the
Southern District of New York,
Opinion and Order in 1:18-CV-2974,
Issued March 29, 2019 .....................................7a–21a
United States Court of Appeals for the
Second Circuit,
Order in 19-1147 (denying petition for
rehearing en banc),
Issued July 1, 2020 .................................................22a
United States District Court for the
Southern District of New York,
Complaint in 1:18-CV-2974,
Filed April 4, 2018 .......................................... 23a–82a
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Al Shiari v. CACI Premier Tech.,
368 F. Supp. 3d 935 (E.D. Va. 2018) ................... 33
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008) ........................................ 25, 28
Artuz v. Bennett,
531 U.S. 4 (2000) .................................................. 28
Berkovitz v. United States,
486 U.S. 531 (1988) .............................................. 28
Bivens v. Six Unknown Named Agents of
the Federal Bureau of Investigation,
403 U.S. 388 (1971) ........................................ 20, 23
Bloate v. United States,
559 U.S. 196 (2010) .............................................. 25
Caban v. United States,
671 F.2d 1230 (2d Cir. 1982) ............. 20, 23, 24, 31
Campos v. United States,
139 S. Ct. 1317 (2019) .......................................... 31
Campos v. United States,
888 F.3d 724 (5th Cir. 2018) .......................... 20, 23
Castro v. United States,
562 U.S. 1168 (2011) ............................................ 31
FDA v. Brown & Williamson Tobacco
Corp.,
529 U.S. 120 (2000) .............................................. 26
Garling v. EPA,
849 F.3d 1289 (10th Cir. 2017) ...................... 19, 21
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Gasho v. United States,
39 F.3d 1420 (9th Cir. 1994) ................ 7, 17, 20, 22
Gibson v. United States,
457 F.2d 1391 (3d Cir. 1972) ............................... 26
Gray v. Bell,
712 F.2d 490 (D.C. Cir. 1983) ...................... passim
Huntress v. United States,
810 Fed. App’x 74 (2d Cir. 2020) ...........................1
Huntress v. United States,
No. 1:18-cv-02974, 2019 WL 1434572
(S.D.N.Y. Mar. 29, 2020)........................................1
Medina v. United States,
259 F.3d 220 (4th Cir. 2001) ........................ passim
Millbrook v. United States,
569 U.S. 50 (2013) .......................................... 19, 21
Morissette v. United States,
342 U.S. 246 (1952) .............................................. 33
Myers & Myers Inc. v. U.S. Postal Serv.,
527 F.2d 1252 (2d Cir. 1975) ............................... 29
Nguyen v. United States,
556 F.3d 1244 (11th Cir. 2009) .................... passim
Nurse v. United States,
226 F.3d 996 (9th Cir. 2000) ................................ 29
Owen v. City of Indep.,
445 U.S. 622 (1980) .............................................. 28
Rapanos v. United States
547 U.S. 715 (2006) ...................................... passim
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Raz v. United States,
343 F.3d 945 (8th Cir. 2003) ................................ 29
Sackett v. E.P.A.,
566 U.S. 120 (2012) ...................................... passim
Sutton v. United States,
819 F.2d 1289 (5th Cir. 1987) .............. 7, 17, 23, 27
Thames Shipyard & Repair Co. v. United
States,
350 F.3d 247 (1st Cir. 2003) ................................ 29
The United States of America v. Acquest
Dev., LLC & William L. Huntress,
W.D.N.Y. No. 1:13-CR-00199 (pending) .............. 14
U.S. Fid. & Guar. Co. v. United States,
837 F.2d 116 (3d Cir. 1988) ................................. 29
United States Army Corps of Eng’rs v.
Hawkes Co.,
136 S. Ct. 1807 (2016) .......................................... 10
United States v. Acquest Dev., LLC,
932 F. Supp. 2d 453 (W.D.N.Y. 2013) ................. 14
United States v. Gaubert,
499 U.S. 315 (1991) .............................................. 28
Wang v. United States,
61 F. App’x 757 (2d Cir. 2003) ..................... passim
Welch v. United States,
546 U.S. 1214 (2006) ............................................ 31
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Statutes
28 U.S.C. 1254 .............................................................1
28 U.S.C. 1346 ................................................... 2, 4, 16
28 U.S.C. 2671 ........................................................... 16
28 U.S.C. 2674 ......................................................... 2, 4
28 U.S.C. 2678 ........................................................... 33
28 U.S.C. 2680 ................................................... passim
33 U.S.C. 1319 ........................................................... 10
33 U.S.C. 1344 ........................................................... 10
33 U.S.C. 1362 ........................................................... 12
Rules
Fed. R. Civ. P. 11 ....................................................... 14
Fed. R. Civ. P. 12 ................................................. 16, 31
Regulations
33 C.F.R. pt. 331 ........................................................ 10
The Navigable Waters Protection Rule:
Definition of ‘Waters of the United States,
85 Fed. Reg. 22250 (Apr. 21, 2020) ..................... 18
x
TABLE OF AUTHORITIES—Continued
Page(s)
Other authorities
2 Frederick Pollock & Frederic Maitland,
The History of the English Law 465
(2d ed. 1899) ......................................................... 33
Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of
Legal Texts 183 (2012) (citations
omitted) ................................................................ 25
S. Rep. 93-588, 93d Cong., 2d Sess.,
reprinted in 1974 U.S. Code Cong. &
Ad. News 2789................................................ 23, 27
1
OPINIONS BELOW
The District Court opinion granting Respondent’s
motion to dismiss is reported at Huntress v. United
States, No. 1:18-cv-02974, 2019 WL 1434572
(S.D.N.Y. Mar. 29, 2020), and is reprinted at App.7a.
The court of appeals opinion affirming that ruling is
reported at Huntress v. United States, 810 Fed. App’x
74 (2d Cir. 2020), and is reprinted at App.1a. The
Second Circuit’s order denying rehearing en banc is
not reported but is reprinted at App.22a.
JURISDICTION
The judgment of the court of appeals was entered
on April 30, 2020. App.1a. The court of appeals denied
Petitioners’ timely request for rehearing en banc on
July 1, 2020. App.22a. This Court has jurisdiction
under 28 U.S.C. 1254(1).
2
STATUTORY PROVISIONS INVOLVED
A provision of the Federal Tort Claims Act, 28
U.S.C. 2674, provides, in pertinent part:
The United States shall be liable, respecting
the provisions of this title relating to tort
claims, in the same manner and to the same
extent as a private individual under like
circumstances, but shall not be liable for
interest prior to judgment or for punitive
damages.
Section 1346(b)(1) of Title 28 provides, in pertinent part:
[T]he district courts . . . shall have exclusive
jurisdiction of civil actions on claims against
the United States . . . for injury or loss of
property, or personal injury or death caused
by the negligent or wrongful act or omission of
any employee of the Government while acting
within the scope of his office or employment,
under circumstances where the United States,
if a private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.
3
Section 2680 of Title 28 provides, in relevant part:
The provisions of this chapter and section 1346(b)
of this title shall not apply to—
(a) Any claim . . . based upon the exercise or
performance or the failure to exercise or
perform a discretionary function or duty on
the part of a federal agency or an employee of
the Government, whether or not the
discretion involved be abused. . . . [The
“discretionary-function exception.”]
***
(h) Any claim arising out of assault, battery,
false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference
with contract rights: Provided, That, with
regard to acts or omissions of investigative or
law enforcement officers of the United States
Government, the provisions of this chapter
and section 1346(b) of this title shall apply to
any claim arising . . . out of assault, battery
false imprisonment, false arrest, abuse of
process, or malicious prosecution. For the
purpose of this subsection “investigative or
law enforcement officer” means any officer of
the United States who is empowered by law to
execute searches, to seize evidence, or to make
arrests for violations of Federal law.” [The
“law-enforcement proviso” (emphasis added).]
4
INTRODUCTION
The federal courts of appeal have “struggled” to
resolve the “unsettled” question of “whether and how
to apply the” Federal Tort Claim Act’s discretionaryfunction exception in 28 U.S.C. 2680(a) in cases
brought under the law-enforcement proviso found in
28 U.S.C. 2680(h). Medina v. United States, 259 F.3d
220, 224 (4th Cir. 2001). Accord App.20a–21a n.7
(“Circuit courts appear to disagree over whether
claims listed in the law-enforcement-officer proviso
would be barred if they are based on the performance
of discretionary functions within the meaning of
§ 2680(a).”) (multiple citations omitted). This case
provides an ideal vehicle for this Court to apply the
law-enforcement proviso’s plain language, resolve the
circuit split, and affirm that the discretionaryfunction exception does not bar suits involving bad
acts committed by federal investigatory and lawenforcement officers.
The Federal Tort Claims Act creates federal-court
jurisdiction over, and waives the United States’
sovereign immunity from, claims involving injuries
“caused by the negligent or wrongful act[s] or
omission[s]” of government employees. 28 U.S.C.
2674; 28 U.S.C. 1346(b)(1). The Act contains a list of
exceptions to this jurisdictional grant and immunity
waiver, including the so-called “discretionary-function
exception,” which exempts claims “based upon the
exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of
a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” 28
U.S.C. 2680(a) (emphasis added).
5
A later subsection goes on to exempt certain torts
as well. 28 U.S.C. 2680(h). But, recognizing the seriousness of misconduct perpetuated by federal investigators and law-enforcement officers, that subsection
also sets forth what has become known as the lawenforcement proviso: “Provided, That, with regard to
acts or commission of investigative or law enforcement officers of the United States Government, the
provisions of this chapter and section 1346(b) of this
title shall apply to any claim arising . . . out of” six bad
acts, including “abuse of process” and “malicious
prosecution.” 28 U.S.C. 2680(h). And the proviso defines “investigative or law enforcement officer” broadly: “any officer of the United States who is empowered
by law to execute searches, to seize evidence, or to
make arrests for violations of Federal law.” Ibid.
The present dispute is the latest in a long line of
cases at the intersection between the discretionaryfunction exemption and the law-enforcement proviso.
Petitioners William Huntress and Acquest
Development are successful and well-regarded realestate developers who have constructed office buildings across the country to house esteemed companies
and federal agencies, including the U.S. Treasury, the
IRS, and even the EPA, among many others.
In 1997, a Huntress-owned company, Acquest
Wehrle, LLC, purchased a commercially zoned property on Wehrle Drive in Amherst, New York, that the
U.S. Army Corps of Engineers, in 1997 and again in
2001, determined had a non-jurisdictional 2.6-acre
“isolated wetland,” which did not abut any waterway
of the United States. When Huntress and Acquest
sought to develop the property, in 2002, the EPA tried
to assert Clean Water Act jurisdiction over the parcel,
precipitating contentious civil litigation.
6
Things got worse after another Huntressaffiliated company, Acquest Transit, LLC, purchased
a nearby, 97-acre farm, a property that had its own
isolated (alleged) wetlands on Transit Road in
Amherst. In 2009, alleging Clean Water Act violations, the EPA sued Huntress and Acquest in dual
civil lawsuits. And when Huntress and Acquest
refused to capitulate, the EPA escalated the matter
and filed a felony criminal indictment against them in
2011. A federal district court dismissed the indictment after Huntress and Acquest established that the
Government interfered with the grand jury’s investigation, but the EPA re-indicted in 2013.
Aside from the EPA’s obvious retaliation, the
problem with these felony proceedings is that the EPA
lacks Clean Water Act jurisdiction over parcels that
do not abut and are miles from navigable-in-fact
waters. This Court rejected the EPA’s more expansive
wetlands-jurisdiction theory in Rapanos v. United
States, 547 U.S. 715 (2006), five years before the EPA
first indicted Petitioners. And the Court confirmed
Rapanos’ holding in Sackett v. E.P.A., 566 U.S. 120,
123–24 (2012), a year before the re-indictment. But
this Court’s rulings were of no moment to the EPA. At
a 2007 conference, a year after Rapanos, the EPA
demanded that Huntress and Acquest pay $2 million
to develop the Wehrle property or the EPA would prohibit any development at the site and fine Petitioners
$400,000. When Huntress and Acquest’s counsel
raised their jurisdictional objection, the EPA’s local
Regional Counsel grew agitated and, referring to the
Rapanos ruling, declared, “Let the Chief Justice try to
enforce it!” App.61a. That same Regional Counsel was
the EPA staff member who ultimately referred Petitioners’ jurisdictional challenge to the EPA’s Criminal
Investigative Division for indictment.
7
After the 2013 re-indictment was dismissed,
Huntress and Acquest filed this lawsuit under the
Federal Tort Claims Act, claiming damages for the
EPA’s destruction of their business based on the very
public and damaging accusation that they were felons.
The Government challenged jurisdiction and asserted
immunity, arguing that the EPA officials’ conduct fell
within the discretionary-function exception. Huntress
and Acquest responded that the Government had no
discretion to bring criminal indictments in the
absence of Clean Water Act jurisdiction, and that the
abuse of process and malicious prosecution claims fell
within the law-enforcement proviso in any event.
The district court recognized the circuits’
disagreement “over whether claims listed in the lawenforcement-officer proviso would be barred if they
are based on the performance of discretionary
functions within the meaning of § 2680(a).” App.20a–
21a n.7 (contrasting Medina v. United States, 259
F.3d 220, 224–26 (4th Cir. 2001), Gasho v. United
States, 39 F.3d 1420, 1435 (9th Cir. 1994), and Gray
v. Bell, 712 F.2d 490, 507–08 (D.C. Cir. 1983), with
Nguyen v. United States, 556 F.3d 1244, 1257 (11th
Cir. 2009), and Sutton v. United States, 819 F.2d 1289,
1297 (5th Cir. 1987)). But the court ultimately agreed
with the circuits holding that “Plaintiffs ‘must clear
the § 2680(a) discretionary function hurdle’ before
they can proceed on their intentional torts claims
arising from law enforcement officers’ misconduct
under § 2680(h).” Id. (quoting Medina, 259 F.3d at
226). This result, said the court, was consistent with
the Second Circuit’s unpublished decision in Wang v.
United States, 61 F. App’x 757, 758–59 (2d Cir. 2003).
Id. The Second Circuit affirmed in a summary order.
App.1a–6a.
8
Huntress and Acquest ask this Court to grant the
petition and reverse. The interplay between the lawenforcement proviso and the discretionary-function
exception has long flummoxed the circuits, and
resolution of this unsettled question is essential to
deter overzealous federal regulators pursuing criminal charges. What’s more, this case presents an ideal
vehicle to resolve the split. Certiorari is warranted.
STATEMENT
A. Petitioners and their business
William Huntress is a lifelong resident of New
York State, other than the four years he served in the
United States Air Force. App.30a–31a. After working
as a Certified Public Accountant for Price Waterhouse
Coopers and a real-estate investment and development firm, Huntress started his own company,
Acquest, for which he is the sole member and
manager. App.31a.
Through Acquest and its related, single-purpose
entities, Huntress has built and provided beautiful
commercial buildings for a long list of prominent
private companies, including AT&T, Prudential
Securities, American Airlines, Liberty Mutual
Insurance, Red Bull, and numerous medical practices.
App.31a n.1. Huntress also has had a long, productive
relationship with the federal government, building
state of the art facilities to house federal agencies
across the country. App.31a. These agencies have
included the National Labor Relations Board, the
Small Business Administration, the Department of
Commerce, the Food & Drug Administration, the
Department of Labor, the General Services Administration, the Navy, the Internal Revenue Service, the
Department of Veteran’s Affairs, and even the EPA,
among many others. App.31a–32a n.2.
9
B. The disputed properties
In 1997, an Acquest entity purchased a 20-acre
commercially zoned property in the Town of Amherst,
on Wehrle Drive. App.35a. Huntress fully expected to
develop the property into the same type of highquality commercial development that Acquest
routinely built for government agencies and private
companies across the United States. App.35a.
Huntress was no novice when it came to purchasing and developing real property. He purchased the
Wehrle land understanding the need to determine
legal and environmental restrictions that might be an
impediment to the project. App.36a. He was aware of
an existing Army Corps of Engineers Nationwide
Permit allowing the Wehrle property’s previous owner
to fill .99 acres of an alleged 2.6 acre “isolated
wetland” on the property, a permit that ran with the
land. App.36a. It seemed clear that the Wehrle land
was isolated from any traditional navigable waterways. App.36a. But to remove any doubt, Huntress
obtained from the Army Corps in 2001 a jurisdictional
determination that the land contained only “isolated
wetlands” and was therefore not subject to Clean
Water Act jurisdiction and needed no permit from the
Corps. App.36a.
That small, isolated wetland was not what
initially precipitated the EPA’s interest, however. It
was an unrecorded, 50-year development moratorium
on the property that the EPA had required as a
condition of monetary grants the EPA made to the
Town of Amherst for sewer improvements. App.36a.
But because the Grant and Moratorium Agreement
had never been recorded in the County Clerk’s office,
Huntress had no notice of it. App.37a.
10
Once the EPA’s recording mistake became clear,
the agency issued a determination in 2002 that the
Wehrle property constituted a “Special Case,” an
unusual and rarely used designation. App.37a. The
EPA did this to take regulatory control away from the
Army Corps and reverse the Corps’ determination—
made only one year before—that the small, isolated
spot of “wetlands” was not within Army Corps or EPA
jurisdiction. App.37a. Incidentally, the EPA’s designation also violated a 1989 EPA and Army Corps
Memorandum of Agreement that made the Army
Corps’ jurisdictional determination binding on the
federal government. App.38a; United States Army
Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1812
(2016); 33 U.S.C. 1319, 1344(s); 33 C.F.R. pt. 331;
EPA, Memorandum of Agreement: Exemptions Under
Section 404(F) of the Clean Water Act § VI-A (1989).
This was the EPA’s first step to show Huntress and
Acquest who was boss. App.38a.
In 2006, Huntress and an Acquest entity bought a
second property for development in the Town of
Amherst, a 97-acre farm on Transit Road. App.39a.
Like many other farms in the area, the Transit farm
has some water on it, including (1) a small, man-made
pond that contains rainwater, and (2) temporary
puddles that result from snow melt or following a few
days of heavy rain. App.50a. Huntress leased the
property to farmers who farmed this property in the
same way that had been done for a hundred years.
11
C. Tensions increase
In response to the EPA’s “Special Case” designation, Huntress sued the EPA and the Army Corps,
seeking a declaration that the Wehrle land was
exempt from Clean Water Act wetlands regulation.
App.38a. The district court ultimately dismissed the
complaint for lack of subject-matter jurisdiction,
concluding there was no final agency action under the
Administrative Procedures Act. App.38a.
In the same lawsuit, Huntress sued the Town of
Amherst, seeking a declaration that the unrecorded,
50-year development-moratorium agreement with the
EPA resulted in an unconstitutional taking without
compensation. App.38a–39a. The district court dismissed that claim as unripe because Huntress had not
pursued his state remedies. App.39a. So, Huntress
sued in state court and ultimately obtained a favorable jury verdict and payment of $3.94 million for the
illegal termination of the office-park project Huntress
and Acquest planned for the Wehrle land. App.39a.
By then, the EPA had enough of William
Huntress; it sued him and Acquest in two civil
lawsuits, alleging Clean Water Act violations at both
the Wehrle and Transit lands. App.39a. And when
Huntress and Acquest refused to capitulate, the EPA
retaliated by criminally indicting them both. App.39a.
Neither the civil complaints nor criminal indictments
alleged that Petitioners had harmed or even
threatened to harm the environment. App.34a–35a.
But these actions were consistent with comments
made by an EPA Region 6 administrator the year
before the first criminal indictment, who suggested
that the EPA use enforcement tactics similar to the
Roman army’s: crucify “the first five guys [you] see”
and the rest will be “really easy to manage.” App. 73a.
12
D. The 2011 criminal indictment
In November 2011, the EPA indicted Huntress
and Acquest in United States v. Acquest Development,
LLC and William L. Huntress, W.D.N.Y. No. 1:11-CR00347. App.70a. The indictment was premised on
alleged acts and omissions that the Government
claimed were illegal solely because of the EPA’s Clean
Water Act jurisdiction over the Transit property.
App.48a–49a. To satisfy the jurisdictional prerequisite, the indictment alleged that the Transit land
contained “wetlands” that constituted “navigable
waters” encompassed by the Clean Water Act’s
undefined reference to “waters of the United States.”
33 U.S.C. 1362(7). In support of that allegation, the
indictment pointed primarily to a 2005 wetlands
“discount” on the purchase price (though in fact a
purchase-agreement amendment removed any credit
for wetlands because the seller did not agree that the
property was subject to the Clean Water Act)—with
no explanation of how any wetlands abutted navigable
waters.
At the time of the first indictment, this Court had
already made clear that not all wetlands are
“jurisdictional wetlands,” i.e., part of “the waters of
the United States.” App.50a. The controlling authority was this Court’s decision in Rapanos v. United
States, 547 U.S. 715 (2006), a dispute that similarly
involved alleged wetlands that were not abutting and
miles from navigable waters. But the Justices were
unable to reach a majority rationale.
In short, the indictment rested squarely on a
jurisdictional theory that this Court had rejected in
Rapanos.
13
But the EPA’s officials didn’t care. At a settlement
conference involving the civil actions, Huntress,
Acquest, and their legal counsel sat down in New York
City with various EPA officials including Walter
Mudgan, the EPA’s former Regional Counsel for EPA
Region 2 and, at the time this lawsuit was filed, the
EPA’s Director of the Emergency and Remedial
Response Division. App.60a–61a. The EPA said it
would only allow Huntress to develop the Wehrle land
if he and Acquest paid the federal government
$2 million. App.61a. Otherwise, Huntress and
Acquest would have to pay a $400,000 fine with no
right to develop the property. App.61a. Huntress and
Acquest’s counsel explained that the EPA could not
establish Clean Water Act jurisdiction over the
Wehrle property. App.61a. At that, Mudgan became
agitated and, when reference was made to this Court’s
decision in Rapanos, Mudgan declared: “Let the Chief
Justice try to enforce it!” App.61a.
Mudgan’s intransigence can hardly be brushed
aside as an aberrant remark by a single EPA malcontent. App.61a. Mudgan held a high-level position in
the EPA. App.61a. The fact that the EPA’s rulemaking in this context mirrored Mudgan’s statement
suggests he was merely expressing a widely held
sentiment at the agency. App.62a. And it was Mudgan
himself who ultimately referred Huntress and
Acquest to the EPA’s Criminal Investigative Division
for indictment. App.61a. Yet when pressed about
these circumstances at his deposition, Mudgan
demurred because, despite his position as Regional
Counsel, he was not a criminal-law or criminalenvironmental-law expert, he was not a Clean Water
Act expert, and he was not an expert on the Clean
Water Act’s wetlands provisions. App.63a.
14
As the complaint in the instant action alleges,
“pursuant to Fed. R. Civ. Proc. 11(b)(3),” “it is probable
that evidence will be developed after a reasonable
opportunity for further investigation and discovery,
showing that those indictments were procured with
the assistance and complicity of a number of EPA
employees.” App.62a. Indeed, EPA officials have
already exposed their goal to simply grind Huntress
and Acquest into the ground with litigation. Months
before the first indictment was returned, the EPA
suggested that Huntress could avoid jail time simply
by kowtowing to the EPA’s demands in the Transit
civil case. App.68a–69a. And in a separate
conversation with Acquest’s general counsel, Phyllis
Feinmark, the EPA’s Branch Chief, Water and
General Law Branch, Office of Regional Counsel in
New York City, caustically explained: “The government does not care about money or time; Bill Huntress
does.” App.65a.
E. The 2013 re-indictment
The EPA’s initial indictment was dismissed in
early 2013 based on the EPA’s interference with the
grand jury. United States v. Acquest Dev., LLC, 932 F.
Supp. 2d 453 (W.D.N.Y. 2013). So, in September 2013,
the EPA re-indicted Petitioners in United States v.
Acquest Development, LLC and William L. Huntress,
W.D.N.Y. No. 1:13-CR-00199. App.9a. This time, the
EPA asserted its Clean Water Act jurisdiction by
characterizing the Transit property as having
“potential wetlands.” App.50a.
15
Between the 2011 indictment and the 2013 reindictment, this Court decided Sackett v. E.P.A., 566
U.S. 120 (2012). There, the Court was again confronted with the EPA’s questionable assertion of jurisdiction on account of wetlands. And Justice Scalia,
writing for a unanimous court, emphasized that
although “no one rationale commanded a majority,”
the Court answered “no” to the question of “whether a
wetland not adjacent to navigable-in-fact waters fell
within the scope of the [Clean Water] Act.” Id. at 123–
24. And in a concurrence, Justice Alito described the
dangerous philosophy that brought another wetlands
case back to the Court: “Any piece of land that is wet
at least part of the year is in danger of being classified
by EPA employees as wetlands covered by the Act,”
and “if property owners begin to construct a home on
a lot that the agency thinks possesses the requisite
wetness, the property owners are at the agency’s
mercy.” Id. at 132 (Alito, J., concurring). A prophetic
prediction indeed.
Despite all this, the EPA tightened the press on
Huntress and Acquest by re-indicting them. On
March 10, 2016, all the 2013 re-indictment’s charges
against Petitioners were dismissed. App.70a.
F. The costs of the EPA’s bullying
The EPA effectively prevented the Wehrle
property from being developed for more than a decade.
And the EPA’s announcement that William Huntress
and his company were felons effectively destroyed
their ability to conduct business and exposed
Huntress to potential incarceration in a federal
penitentiary. App.71a. The EPA’s campaign also cost
Huntress millions of dollars in legal and expert
witness fees. App.64a.
16
G. Proceedings below
In April 2018, Huntress and Acquest filed this
action under the Federal Tort Claims Act, 28 U.S.C.
2671, et seq., and 28 U.S.C. 1346(b)(1), against the
United States, seeking damages for malicious prosecution, intentional infliction of emotional distress, and
abuse of process. App.10a. Consistent with the Act’s
law-enforcement proviso, Huntress and Acquest
claimed that the bad acts were perpetrated by numerous “investigative or law enforcement officers” as
defined in 28 U.S.C. 2680(h). App.25a.
The United States moved to dismiss the
Complaint for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) and for
failure to state a claim upon which relief may be
granted under Rule 12(b)(6). The district court
granted the motion under Rule 12(b)(1), holding that
the conduct of the EPA’s officials fell within the
discretionary-function exception to the Federal Tort
Claims Act, 28 U.S.C. 2680(a). App.7a. In so holding
the court noted the circuit conflict over the
discretionary-function exception and the Federal Tort
Claims Act’s law-enforcement proviso in 28 U.S.C.
2680(h), and the court aligned itself with the circuits
that have held that the discretionary-function
exception nullifies the law-enforcement proviso:
Section 2680(h) bars claims against the
Government ‘arising out of,’ among other
things, ‘malicious prosecution[ and] abuse of
process . . . [.]’ but has a proviso that waives
immunity for these torts when committed by
‘law enforcement officers.’ 28 U.S.C. § 2680(h).
Circuit courts appear to disagree over
whether claims listed in the law-enforcement
proviso would be barred if they are based on
17
the performance of discretionary functions
within the meaning of § 2680(a). Compare
Medina v. United States, 259 F.3d 220, 224–
26 (4th Cir. 2001), Gasho v. United States, 39
F.3d 1420, 1435 (9th Cir. 1994), and Gray [v.
Bell], 712 F.2d [490,] 507–08 [D.C. Cir. 1983],
with Nguyen v. United States, 556 F.3d 1244,
1257 (11th Cir. 2009), and Sutton v. United
States, 819 F.2d 1289, 1297 (5th Cir. 1987).
The Court agrees with the majority of these
Circuits that Plaintiffs ‘must clear the
§ 2680(a) discretionary function hurdle’ before
they can proceed on their intentional torts
claims arising from law enforcement officers’
misconduct under § 2680(h). Indeed, the
Second Circuit has relied on the discretionary
function exception to dismiss false arrest and
malicious prosecutions claims arising from
law enforcement officers’ alleged misconduct
brought against the Government under the
FTCA, without requiring the Government to
overcome the hurdle of the law-enforcementofficer proviso to § 2680(h). Wang v. United
States, 61 F. App’x 757, 758–59 (2d Cir. 2003).
[App.20a–21a n.7.]
“[B]ecause the discretionary function exception
shields the Government from any causes of action that
Plaintiffs have asserted in their Complaint,”
concluded the district court, “the Complaint must be
dismissed for lack of subject matter jurisdiction.”
App.20a. The Second Circuit affirmed in a summary
order with no additional substantive analysis.
App.1a–6a.
18
H. Postscript
On June 22, 2020, the EPA finalized a clarified
definition of “waters of the United States” under the
Clean Water Act. The rule finally capitulated to what
this Court had said all along in Rapanos and Sackett,
namely, that the EPA lacks jurisdiction over wetlands
unless they “abut a territorial sea or traditional
navigable water, a tributary, or a lake, pond, or
impoundment of a jurisdictional water; are inundated
by flooding” from such a water; “are physically separated from” such a water “only by a natural berm,
bank, dune, or similar natural feature” or by “an artificial dike, barrier, or similar artificial structure [if]
that structure allows for a direct hydrological surface
connection to” such a water. The Navigable Waters
Protection Rule: Definition of ‘Waters of the United
States, 85 Fed. Reg. 22250, 22251 (Apr. 21, 2020).
The practical effect of this Rule is an EPA
admission of precisely what Huntress and Acquest
claimed from the beginning: that the EPA lacked
Clean Water Act jurisdiction over either the Wehrle
or Transit properties. Yet if the Federal Tort Claims
Act’s discretionary-function exception nullifies the
law-enforcement proviso, as the EPA successfully
argued to the lower courts in this case, Huntress and
Acquest will be deprived of discovery and the
opportunity to prove that the EPA’s criminal actions
against them were unlawful from the get-go.
19
REASONS FOR GRANTING THE PETITION
As recent national events have emphasized, lawenforcement officials have great power to protect
community safety and the public good. But that power
can be abused. Without an avenue to pursue a remedy
in such cases, citizens are left at the mercy of officials
who sometimes choose to use their vast power and
leviathan-like resources to subdue those they are
supposed to defend and protect.
Congress saw this problem and addressed it by
enacting the law-enforcement proviso in the Federal
Tort Claims Act. 28 U.S.C. 2680(h). The proviso’s
plain language “extends the waiver of sovereign
immunity” to “any” claim against federal law
enforcement officers for abuse of process or malicious
prosecution. Millbrook v. United States, 569 U.S. 50,
52–53 (2013). “Nothing in the text [of the proviso]
further qualifies the category of ‘acts or omissions’
that may trigger FTCA liability.” Id. at 55.
The problem is that the federal courts of appeals
have “struggled” in deciding the “unsettled” question
of “whether and how to apply the [discretionary
function] exception in cases brought under the” lawenforcement proviso. Medina, 259 F.3d at 224. Accord,
e.g., Garling v. EPA, 849 F.3d 1289, 1298 n.5 (10th
Cir. 2017) (“recogniz[ing] the disagreement”); App.
20a–21a n.7 (cataloguing the disagreement between
the Fourth, Fifth, and D.C. Circuits on the one hand,
and the Fifth and the Eleventh Circuits on the other).
The circuits are now hopelessly split into four
camps. One circuit—the Eleventh—categorically
holds that the law-enforcement proviso applies
“regardless of whether the acts giving rise to it involve
a discretionary function,” Nguyen v. United States,
556 F.3d 1244, 1256–57 (11th Cir. 2009).
20
The Second Circuit reached that same conclusion
regarding claims involving arrests and detentions.
Caban v. United States, 671 F.2d 1230 (2d Cir. 1982).
But it failed to apply it to this case involving alleged
abuse of process and malicious prosecution by EPA
officials, summarily affirming the district court and
its reliance on the Second Circuit’s unpublished
decision in Wang v. United States, 61 Fed. App’x 757,
758–59 (2d Cir. 2003).
Three circuits—the D.C., the Fourth, and the
Ninth—take the opposite approach, holding that the
law-enforcement proviso is swallowed whole by the
discretionary-function exception. Gray v. Bell, 712
F.2d 490 (D.C. Cir. 1983); Medina v. United States,
259 F.3d 220, 224 (4th Cir. 2001); Gasho v. United
States, 39 F.3d 1420 (9th Cir. 1994).
And one additional circuit—the Fifth—holds that
the two provisions “must be read together,” such that
only a narrow subset of claims go forward: those
alleging egregious, intentional misconduct along the
lines of the Collinsville raids and in Bivens v. Six
Unknown Named Agents of the Federal Bureau of
Investigation, 403 U.S. 388 (1971). Campos v. United
States, 888 F.3d 724, 736–38 (5th Cir. 2018).
This Court should grant the petition, adopt the
Eleventh Circuit’s approach, hold that the
discretionary-function exception has no application to
unconstitutional acts and the six torts listed in the
law-enforcement proviso, and reverse and remand.
21
I.
The Second Circuit’s decision exacerbates a
deep and mature circuit split.
Seven years ago, in Millbrook v. United States,
569 U.S. 50 (2013), the Government acknowledged the
circuit split over the interplay between the Federal
Tort Claims Act’s discretionary-function exception
and law-enforcement proviso. Three years ago, the
Tenth Circuit became the most recent circuit to
“recognize the disagreement.” Garling v. EPA, 849
F.3d 1289, 1298 n.5 (10th Cir. 2017). The Second
Circuit’s decision here exacerbates the conflict, which
now involves four differing approaches. This Court’s
review is sorely needed.
1. In the first camp is the Eleventh Circuit, which
applies a categorical rule that the discretionaryfunction exception yields to the law-enforcement
proviso. In that court’s words, “sovereign immunity
does not bar a claim that falls within the proviso to
subsection (h), regardless of whether the acts giving
rise to it involve a discretionary function.” Nguyen, 556
F.3d at 1256–57 (emphasis added). So, “if a claim is
one of those listed in the proviso to subsection (h),
there is no need to determine if the acts giving rise to
it involve a discretionary function; sovereign
immunity is waived in any event.” Id. at 1257.
In Nguyen, the Eleventh Circuit rejected the
argument that the discretionary-function exception
protected agents involved in a DEA investigation of
the plaintiff’s medical practice that resulted in claims
for false arrest, false imprisonment, and malicious
prosecution. Although such an investigation necessarily involves judgment calls, “to the extent of any
overlap and conflict between [the law-enforcement]
proviso and [the discretionary-function exception], the
proviso wins.” Id. at 1252–53.
22
The Eleventh Circuit reached that result based on
“[t]wo fundamental canons of statutory construction,
as well as the clear Congressional purpose behind the”
law-enforcement proviso. 556 F.3d at 1252. First, the
law-enforcement proviso “is more specific than the
discretionary function exception.” Id. at 1253. Second,
the law-enforcement proviso was amended after the
discretionary-function exception’s enactment, and
“[w]hen subsections battle, the contest goes to the
younger one.” Id. Given the law-enforcement proviso’s
text and purpose, there is no excuse for “rewriting the
words ‘any claim’ in the proviso to mean only claims
based on the performance of non-discretionary
functions.” Id. at 1256.
There is no dispute that if the EPA had pursued
its unlawful indictment and re-indictment against
Huntress and Acquest in the Eleventh Circuit, their
suit under the law-enforcement proviso would have
been allowed to proceed.
2. In the second camp are the D.C., Fourth, and
Ninth Circuits, holding that the discretionaryfunction exception nullifies the law-enforcement
proviso. Gray, 712 F.2d at 508 (a plaintiff “must clear
the ‘discretionary function’ hurdle and satisfy the
‘investigative or law enforcement officer’ limitation to
sustain” a Federal Tort Claims Act claim); Medina,
259 F.3d at 224 (plaintiff’s tort claims, each enumerated in the law-enforcement proviso, were barred by
the discretionary-function exception); Gasho v. United
States, 39 F.3d at 1433 (when there is “interplay”
between the law-enforcement proviso and the other
§ 2680 exceptions, the other exceptions control, even
though this “effectively bars any remedy” for some of
the claims the law-enforcement proviso authorizes).
23
3. The Fifth Circuit is the sole member of the third
camp. It refuses to adopt a “categorical[ ]” rule and
instead holds that the two provisions “must be read
together.” Campos, 888 F.3d at 731, 737. If the lawenforcement proviso applies, then a district court
should determine whether the alleged misconduct is
along the lines of the Collinsville raids and in Bivens.
Id. at 736–38. Collinsville was one of the locales where
government agents engaged in “abusive, illegal, and
unconstitutional ‘no-knock’ raids” that caused
Congress to enact the law-enforcement proviso in the
first place. Sutton, 819 F.2d at 1295 (quoting S. Rep.
93-588, 93d Cong., 2d Sess., reprinted in 1974 U.S.
Code Cong. & Ad. News 2789, 2790).
4. And that brings us to the last camp, the Second
Circuit. In a previous case that involved arrests and
detentions, the court essentially applied the same
categorical rule as the Eleventh Circuit. Caban, 671
F.2d at 1233. On the one hand, the court said that “the
activities of the INS agents who detained appellant do
not fall within the purview of [the discretionaryfunction exception] because the activities are not the
kind that involve weighing important policy choices.”
Ibid. On the other, the court acknowledged that INS
officials exercised judgment in deciding who met
detention criteria but concluded that characterizing
those acts as discretionary would “jeopardize a
primary purpose for enacting” the law-enforcement
proviso. Id. at 1234. Because Congress intended the
law-enforcement proviso to include “the decision of a
narcotics agent as to whether there is probable cause
to search, seize, or arrest,” id. at 1235, “a fortiori”
courts should interpret the proviso to waive sovereign
immunity when INS agents make the same kind of
decision, ibid.
24
Here, too, EPA officials exercised judgment in
deciding to criminally indict Huntress and Acquest.
But if the law-enforcement proviso is to have any
meaning, it cannot be negated by the discretionaryfunction exception. Yet the lower courts did not follow
Caban’s rule or reasoning. The district court examined the circuit split, sided with the D.C., Fourth, and
Ninth Circuits’ categorical rules and the Second
Circuit’s unpublished decision in Wang, and held that
the discretionary-function exception engulfs the lawenforcement proviso. App.20a–21a n.7. And a Second
Circuit panel summarily affirmed, citing Wang and
the D.C. Circuit’s Gray decision while cursorily concluding that courts “have uniformly found” allegations
like those Huntress and Acquest make against the
EPA to be “quintessential examples of governmental
discretion” and thus “immune under the discretionary
function exception.” App.5a (quoting Gray, 712 F.2d
at 513). The Second Circuit denied rehearing en banc.
App.22a.
In sum, any hope that the Second Circuit would
bring some semblance of order to the multi-circuit
split is gone. And the conflict is outcome determinative. If Huntress and Acquest’s action arose in the
Eleventh Circuit, they would now be taking discovery.
If it arose in the Fifth Circuit, they could at least
argue that the EPA’s alleged acts were so abusive
(given their unconstitutionality) that the acts warranted further investigation. Even in the Second
Circuit, Huntress and Acquest might have had a
chance if their claims had involved arrests or
detentions. But though their claims were based on
much worse government conduct—criminal felony
indictments—they were never given an opportunity to
prove their damage claims. This Court should grant
review and resolve the circuit conflict.
25
II. The Second Circuit’s decision makes a hash
of the Federal Tort Claims Act’s text and
effectively writes the law-enforcement
proviso out of the Act.
At first glance, it is understandable why courts
have struggled to reconcile the law-enforcement
proviso and the discretionary-function exception.
After all, the word “any” means of every kind. E.g., Ali
v. Fed. Bureau of Prisons, 552 U.S. 214, 218–19, 228
(2008). And § 2680(a) excludes “[a]ny claim” involving
a discretionary function, while § 2680(h) includes “any
claim” based on the listed torts.
But as the Eleventh Circuit explains, reconciliation is not difficult. The law-enforcement proviso
is limited to “six specified claims arising from acts of
two specified types of government officers.” Nguyen,
556 F.3d at 1253. In contrast, the discretionaryfunction exception “applies generally to claims arising
from discretionary functions or duties of federal
agencies or employees.” Ibid. In that situation, the
“specific statutory provision trumps [the] general
one.” Ibid. (citations omitted). Accord, e.g., Antonin
Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 183 (2012) (citations
omitted); Bloate v. United States, 559 U.S. 196, 207
(2010) (a statute’s “specific provision” “controls”
provisions “of more general application”).
Indeed, the “most common example of irreconcilable conflict—and the easiest to deal with—involves a
general prohibition that is contradicted by a specific
permission.” Scalia, Reading Law at 183. And that is
the very situation presented here. The discretionaryfunction exception, enacted in 1946, involves a
general prohibition on suing the Government arising
out of its officials’ discretionary acts. Added as a
26
Federal Tort Claims Act amendment in 1974, the lawenforcement proviso gives a specific permission:
federal jurisdiction and waiver of sovereign immunity
to pursue six enumerated tort claims against
“investigative or law enforcement officers of the
United States.” 28 U.S.C. § 2680(h). Given a conflict
before the discretionary-function exception’s general
prohibition and the law-enforcement proviso’s specific
permission, the law-enforcement “proviso wins.”
Nguyen, 556 F.3d at 1253.
Temporal consideration of the two provisions’
enactment dates reinforces that conclusion. A laterenacted statute generally controls over an earlierenacted statute on the same topic. Scalia, Reading
Law at 186. And that result is “particularly” true
when “the scope of the earlier statute is broad but the
subsequent statute[ ] more specifically address[es] the
topic at hand.” FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 143 (2000). Here, the
discretionary-function exception broadly prohibits
any lawsuits involving a discretionary act. The laterenacted law-enforcement proviso specifically addresses only six specific torts that should always go
forward. In such a situation, the later and more
specific law-enforcement proviso controls. See Brown
& Williamson, 529 U.S. at 143.
That result is also the one that best comports with
Congressional intent. The 1974 amendment that
added the law-enforcement proviso was a major
change in U.S. sovereign immunity. Until then,
subsection (h)—which Congress enacted in 1946 without the proviso—ensured that sovereign immunity
remained for eleven, listed torts. Gibson v. United
States, 457 F.2d 1391, 1395–96 (3d Cir. 1972).
27
Then came the infamous raids by federal agents
on innocent families’ homes in Collinsville, Illinois.
See S. Rep. No. 93-588 (1974), reprinted in 1974
U.S.S.C.A.N. 2789, 2790. The agents conducted the
raids based on mistaken information and without
warrants, leaving terrified family members and
broken personal property in their wake. Yet under
then-existing § 2680(h), those innocent victims could
not recover damages from the federal government
because of sovereign immunity. 1974 U.S.C.C.A.N. at
2790 (“There is no effective legal remedy against the
Federal Government for the actual physical damage,
much less the pain, suffering and humiliation to
which the Collinsville families have been subjected.”).
Congress added the law-enforcement proviso to
correct that wrong: “The effect of this provision is to
deprive the Federal Government of the defense of
sovereign immunity in cases in which Federal law
enforcement agents, acting within the scope of their
employment, or under color of Federal law, commit
any of the following torts: assault, battery, false
imprisonment, false arrest, malicious prosecution, or
abuse of process.” Id. at 2789–91.
So, to hold “that the discretionary function exception in subsection (a) trumps the specific provision in
subsection (h) would defeat what we know to be the
clear purpose of the 1974 amendment.” Nguyen, 556
F.3d at 1256. Accord, e.g., Sutton, 819 F.2d at 1297
(“[I]f the law enforcement proviso is to be more than
an illusory—now you see it, now you don’t—remedy,
the discretionary function exception cannot be an
absolute bar which one must clear to proceed under
§ 2680(h).”). And doing so would effectively negate
§ 2680(h) or, at minimum, eliminate the words “any
claim” at the beginning of the proviso “to mean only
claims based on the performance of non-discretionary
28
functions,” contrary to this Court’s well-established
canons of construction. Nguyen, 556 F.3d at 1256
(citing Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228
(2008) (interpreting § 2680(c) so as not to eliminate or
rewrite the word “any”)), and Artuz v. Bennett, 531
U.S. 4, 10 (2000), among others).
As noted above, other circuits disagree with this
conclusion. But as the Eleventh Circuit highlighted,
“[n]one of those decisions addresses the war between
the ‘anys’ in § 2680(a) and (h).” Nguyen, 556 F.3d at
1257. “None of them applies the canons of statutory
construction under which a more specific and more
recently enacted provision trumps a more general and
earlier one.” Ibid. And “[n]one of them comes to grips
with the clear congressional purpose behind the
enactment of the [law-enforcement] proviso to
subsection (h).” Ibid. Only this Court’s review can
resolve that conflict.
III. The discretionary-function exception does
not shield federal law-enforcement officers
from acting without jurisdiction.
Long ago, this Court announced that governments
lack “discretion” to violate the law. Owen v. City of
Indep., 445 U.S. 622, 649 (1980). That is why the
Court has limited the “range of choices” protected by
the discretionary-function exception to those that
comply with “federal policy and law.” Berkovitz v.
United States, 486 U.S. 531, 538 (1988). Actions
outside that range do not qualify for the discretionaryfunction exception; the clause “insulates the Government from liability [only] if the action challenged in
the case involves the permissible exercise of policy
judgment.” Id. at 537. Accord, e.g., United States v.
Gaubert, 499 U.S. 315, 325 (1991) (government acts
29
qualify for the law-enforcement exception only when
involving “judgment as to which of a range of permissible courses is the wisest.”). That is why six circuits
recognize, for example, that the exception does not
except “actions that are unauthorized because they
are unconstitutional.” Thames Shipyard & Repair Co.
v. United States, 350 F.3d 247, 254–55 (1st Cir. 2003).
Accord Myers & Myers Inc. v. U.S. Postal Serv., 527
F.2d 1252, 1261 (2d Cir. 1975); U.S. Fid. & Guar. Co.
v. United States, 837 F.2d 116, 130 (3d Cir. 1988);
Medina v. United States, 259 F.3d 220, 225 (4th Cir.
2001); Raz v. United States, 343 F.3d 945, 948 (8th
Cir. 2003); Nurse v. United States, 226 F.3d 996,
1002–03 (9th Cir. 2000).
Yet the lower courts here ignored Huntress and
Acquest’s repeated arguments that the EPA lacked
jurisdiction over the Transit land. After Rapanos—
and certainly after Sackett—EPA officials were on
notice that their Clean Water Act jurisdiction required them to show that any wetlands on the Transit
property abutted navigable waters. But the lower
courts disregarded that this crucial connection did not
exist. The district court said that because “[t]he EPA
is charged with the responsibility and the authority to
enforce the” Act, “[o]nce the EPA had determined that
the Transit Property was subject to the” Clean Water
Act, “it had the discretionary authority to faithfully
enforce” the Act and ensure Petitioners’ compliance
with it. App.18a–19a. This analysis was backward;
the district court never considered whether the EPA
had acted unlawfully by not only ignoring but thumbing its nose at this Court’s decision in Rapanos.
30
The Second Circuit panel’s decision was likewise
backward. Spurning Huntress and Acquest’s arguments as mere “tautology,” the panel concluded that
the complaint “fail[ed] to provide factual allegations
that would permit the Court to find that the alleged
conduct fell outside the scope of the discretionary
function exception” on the ground that “the allegedly
wrongful conduct, as described in Plaintiffs’
complaint, involved an exercise of discretion and was
susceptible to policy analysis.” App.6a.
It is difficult to understand that conclusion. The
indictment and re-indictment both involved the
Transit property, and Huntress and Acquest alleged
that the “characteristics of the land at issue in
Rapanos are the characteristics of the Transit Road
land.” App.52a. Yet the EPA’s officials “simply ignored
the Rapanos decision and used the agencies’ interpretation” of the Clean Water Act (that this Court rejected) to issue the indictment and the re-indictment.
App.55a. “What was clear when the government
indicted [William] Huntress and his company is that
the indictments were unlawful.” App.57a.
If those allegations are taken as true—as they
must be on a Rule 12(b)(1) motion (Huntress and
Acquest have never been given the opportunity to take
discovery and make that showing)—then the EPA
lacked Clean Water Act jurisdiction over the property
from the get go, and its actions to prosecute and
punish Huntress and Acquest were unlawful, i.e., not
in the range of policy choices that federal law would
allow. For that additional reason, this Court should
grant the petition, reverse, and instruct the lower
courts that a discretionary-conduct-exception inquiry
requires a legal determination that government
officials acted in accord with the law.
31
IV. This case is an ideal vehicle to resolve the
circuit conflict.
This petition is not the first to raise the circuit
conflict involving the discretionary-function exception
and the law-enforcement proviso. The Government
successfully resisted two petitions as not properly
preserving the question. Br. in Opp’n 13, Castro v.
United States, 562 U.S. 1168 (2011) (No. 10-309); Br.
in Opp’n 14, Welch v. United States, 546 U.S. 1214
(2006) (No. 05-529). It successfully opposed the third
by downplaying the conceded circuit split and arguing
the merits. Br. in Opp’n 36–41, Campos v. United
States, 139 S. Ct. 1317 (2019) (No. 18-234). But no
such arguments warrant denial here.
To begin, the issue is fully preserved. In rejecting
Petitioners’ arguments, the district court recognized
the circuit split and sided with “the majority,”
concluding that the discretionary-function exception
nullifies the law-enforcement proviso. App.20a–21a
n.7. Huntress and Acquest highlighted that conflict in
both their opening and reply briefs filed with the
Second Circuit, quoting at considerable length the
Eleventh Circuit’s analysis in Nguyen and raising the
sympathetic language in the Second Circuit’s own
Caban decision. Appellants’ Opening Br. 29–32;
Appellants’ Reply Br. 23–26. But the panel gave that
argument the back of its hand in its summary order,
citing Gray and the unpublished Wang decision,
App.5a, thus exacerbating the circuit conflict.
In addition, the record cleanly frames the question
presented. The facts are not disputed because the
district court granted the Government’s motion to
dismiss under Rule 12(b)(1), which requires that all
alleged facts be accepted as true. And those facts state
a claim under the law-enforcement proviso.
32
Next, this Court’s resolution of the question
presented will be outcome determinative. If the Court
adopts the Eleventh Circuit or Fifth Circuit approach,
Petitioners’ case will move forward. If not, they will
never have their day in court.
This Court’s intervention is also crucial to vindicate Congressional intent. If the Fifth and Eleventh
Circuits are correct, a circuit majority has effectively
written the law-enforcement proviso out of the
Federal Torts Claim Act. That is contrary to the
context and purpose of the amendment that added the
proviso, to say nothing of the separation of powers.
Moreover, as the deepening circuit split and the
numerous previous petitions demonstrate, this is a
mature conflict that will not go away. Further percolation is not warranted because there is no foreseeable
path by which the circuits will resolve the three-way
split on their own. Either victims of Government
misconduct are being deprived of their day in court in
the Second, Fourth, Ninth, and D.C. Circuits, or the
Government is improperly being denied sovereign
immunity in the Fifth and Eleventh Circuits. Either
way, the Court should immediately intervene and
settle the question.
What’s more, Petitioners’ lawsuit against the EPA
is an ideal context to consider the interplay of the
discretionary-function exception and the lawenforcement proviso. Cases brought under the proviso
often involve arrests and use of force that can cause
heated political passions, pitting law enforcement
officials against individual rights. Petitioners’
complaint involves the EPA’s abuse of its white-collar
criminal authority in the context of officials who
thumbed their noses at this Court’s precedents.
33
Conversely, the petition does not present other,
collateral issues that would complicate a future
petition if the Court decided to wait. These include but
are not limited to: (1) the Federal Tort Claims Act’s
denial of a jury trial, contrary to the Seventh
Amendment; (2) the Act’s inflexible and possibly
unlawful limitation on legal fees, see 28 U.S.C. 2678;
and (3) whether, under a proper understanding of our
country’s history, the United States should enjoy
sovereign immunity at all from tort suits, see Al
Shiari v. CACI Premier Tech., 368 F. Supp. 3d 935,
944–58 (E.D. Va. 2018) (comprehensively reviewing
the transformation of sovereign immunity from a
doctrine founded on feudal principles to one endorsed
by American common law). So, this vehicle is not only
suitable but clean.
Finally, this Court has recognized that “felony” is
“as bad a word as you can give to man or thing.”
Morissette v. United States, 342 U.S. 246, 260 (1952)
(citing 2 Frederick Pollock & Frederic Maitland, The
History of the English Law 465 (2d ed. 1899)). Yet that
is the word the EPA branded on William Huntress
and his companies, causing incalculable losses and
public humiliation. This is precisely the type of
governmental abuse that Congress sought to remedy
by enacting the law-enforcement proviso. Only this
Court can undo the erasing of the causes of action
Congress intended to provide and give Petitioners
what the court of appeals denied them: their rightful
day in court.
34
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
JOHN J. BURSCH
Counsel of Record
BURSCH LAW PLLC
9339 Cherry Valley Avenue SE, #78
Caledonia, MI 49316
(616) 450-4235
jbursch@burschlaw.com
GEORGE ROBERT BLAKEY
WILLIAM J. & DOROTHY K. O’NEILL
PROFESSOR OF LAW EMERITUS,
NOTRE DAME LAW SCHOOL*
8630 East Monterosa Avenue
Scottsdale, AZ 85251
(574) 514-8220
GARY T. CORNWELL
THE CORNWELL LAW FIRM
900 NORTH RAINBOW RANCH ROAD
WIMBERLY, TX 78676
(409) 659-7788
BRADLEY R. CAHOON
DURHAM JONES & PINEGAR
111 South Main Street, Suite 2400
Salt Lake City, UT 84111
(801) 415-3000
SEPTEMBER 2020
Counsel for Petitioners
* For identification only
PETITION APPENDIX TABLE OF CONTENTS
United States Court of Appeals for the
Second Circuit,
Summary Order in 19-1147,
Issued April 30, 2020 .........................................1a–6a
United States District Court for the
Southern District of New York,
Opinion and Order in 1:18-CV-2974,
Issued March 29, 2019 .....................................7a–21a
United States Court of Appeals for the
Second Circuit,
Order in 19-1147 (denying petition for
rehearing en banc),
Issued July 1, 2020 .................................................22a
United States District Court for the
Southern District of New York,
Complaint in 1:18-CV-2974,
Filed April 4, 2018 .......................................... 23a–82a
1a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT
HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL
RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE
(WITH
THE
NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF
IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States
Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of
New York, on the 30th day of April, two
thousand twenty.
PRESENT:
GUIDO CALABRESI,
RICHARD C. WESLEY,
RICHARD J. SULLIVAN,
Circuit Judges.
___________________________________
2a
William L. Huntress, Acquest
Development, LLC,
Plaintiffs-Appellants,
v.
No. 19-1147
United States of America,
Defendant-Appellee.
_______________________________
[2]
FOR
PLAINTIFFSAPPELLANTS:
MICHAEL
B.
SMITH
(Jonathan D. Lupkin, on
the brief), Lupkin PLLC,
New York, NY.
Bradley
R.
Cahoon,
Durham
Jones
&
Pinegar, P.C., Salt Lake
City, UT.
Gary T. Cornwell, The
Cornwell
Law
Firm,
Wimberley, TX.
FOR DEFENDANTAPPELLEE:
CHARLES
S.
JACOB,
Assistant United States
Attorney
(Christopher
Connolly,
Assistant
United States Attorney,
on the brief), for Geoffrey
S. Berman, United States
Attorney for the Southern
District of New York, NY.
Appeal from the United States District Court for
the Southern District of New York (Oetken, J.).
3a
UPON DUE CONSIDERATION, IT IS
HEREBY
ORDERED,
ADJUDGED,
AND
DECREED that the judgment of the district court is
AFFIRMED.
Plaintiffs-Appellants William Huntress and
Acquest Development, LLC (collectively, “Plaintiffs”)
appeal from an order of the district court (Oetken, J.)
dismissing their complaint against the United States
for lack of subject matter [3] jurisdiction. On appeal,
Plaintiffs argue that the district court erred in
concluding that their claims, which allege that the
government wrongfully prosecuted Plaintiffs, were
foreclosed by the discretionary function exception to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346(b). See 28 U.S.C. § 2680(a). We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on appeal, to which we refer
only as necessary to explain our decision.
When considering the dismissal of a complaint
under Federal Rule of Civil Procedure 12(b)(1), “we
review factual findings for clear error and legal
conclusions de novo.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000) (internal quotation marks
omitted). “A case is properly dismissed for lack of
subject matter jurisdiction . . . when the district court
lacks the statutory or constitutional power to adjudicate it.” Id. The “plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id.
Plaintiffs brought their complaint under the
FTCA, which provides jurisdiction in the federal
courts and waives the sovereign immunity of the
United States in claims involving injuries “caused by
the negligent or wrongful act[s] or [4] omission[s]” of
government employees, subject to certain exceptions.
4a
28 U.S.C. § 1346(b)(1). One such exception is found in
28 U.S.C. § 2680(a), known as the “discretionary function exception,” which exempts from the FTCA’s grant
of jurisdiction “[a]ny claim . . . based upon the exercise
or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or
not the discretion involved be abused.” Id. § 2680(a).
Accordingly, courts must dismiss claims based on the
performance of discretionary functions for lack of
subject matter jurisdiction. See, e.g., Fazi v. United
States, 935 F.2d 535, 539 (2d Cir. 1991).
The discretionary function exception applies when
two conditions are met. First, the challenged acts
must “involve[] an element of judgment or choice.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
Second, the judgment must be “of the kind that the
discretionary function exception was designed to
shield,” meaning the conduct is a “governmental
action[]” or “decision[] based on considerations of
public policy” or susceptible to policy analysis. Id. at
536–37; see also United States v. Gaubert, 499 U.S.
315, 325 (1991). “[T]he purpose of the exception is to
prevent judicial second-guessing of legislative and
administrative [5] decisions grounded in social, economic, and political policy through the medium of an
action in tort.” Gaubert, 499 U.S. at 323 (internal
quotation marks and citation omitted).
On its face, the gravamen of Plaintiffs’ complaint
is that EPA agents wrongfully procured and prosecuted indictments against Plaintiffs. See, e.g., App’x
at 13 (“The government’s conduct in indicting Bill
Huntress and Acquest . . . was unlawful.”); App’x at
31 (“Not once, but twice, the EPA procured indictments of Bill Huntress and his company based on [its
5a
allegedly unconstitutional] ‘interpretation’” of the federal Clean Water Act); App’x at 48 (“By this Complaint Plaintiffs respectfully allege that the EPA’s act
of ‘making an example’ of Bill Huntress, and ‘hitting
him as hard as possible’ – by indicting him, publicly
accusing him of being a felon, destroying his ability to
conduct his business, and subjecting him to possible
incarceration in a federal penitentiary – even though
a step down from crucifixion, is a Constitutionally
unacceptable means for the EPA to make the populace
‘really easy to manage.’”). These allegations, which are
grounded in “an agency’s decision . . . to prosecute or
enforce, whether through civil or criminal process,”
clearly involved “decision[s] generally committed to
an [6] agency’s absolute discretion.” Heckler v.
Chaney, 470 U.S. 821, 831 (1985). “[C]ourts have
uniformly found” such “quintessential examples of
governmental discretion . . . to be immune under the
discretionary function exception.” Gray v. Bell, 712
F.2d 490, 513 (D.C. Cir. 1983); see also Wang v. United
States, 61 F. App’x 757, 759 (2d Cir. 2003) (summary
order) (“Conduct taken by law enforcement agents
involving an element of discretion . . . is bulletproof
from liability under the operative discretionary
function exception.”).
Plaintiffs contend that the discretionary function
provision nevertheless should not apply to bar claims
alleging unconstitutional or illegal conduct, because
such conduct is necessarily outside the “permissible”
exercise of judgment. Plaintiffs’ Br. at 22–23. To be
sure, as the district court recognized, “[i]t is, of course,
a tautology that a federal official cannot have discretion to behave unconstitutionally or outside the scope
of his delegated authority.” App’x at 64 (quoting Myers
& Myers, Inc. v. U.S. Postal Serv., 527 F.2d 1252, 1261
(2d Cir. 1975)). But mere conclusory assertions of
6a
unconstitutionality cannot carry Plaintiffs’ burden of
establishing jurisdiction. Here, Plaintiffs’ complaint,
construed in the light most favorable to Plaintiffs,
fails to provide [7] factual allegations that would
permit the Court to find that the alleged conduct fell
outside the scope of the discretionary function exception. We therefore find that the allegedly wrongful
conduct, as described in Plaintiffs’ complaint, involved
an exercise of discretion and was susceptible to policy
analysis. Accordingly, the district court did not err in
holding that Plaintiffs’ claims were foreclosed by the
discretionary function exception to the FTCA.
Conclusion
We have reviewed the remainder of Plaintiffs’
arguments – including that Plaintiffs’ claims fall
within and are specifically authorized by the law
enforcement proviso of the intentional tort exception
– and find them to be without merit. Accordingly, we
AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
7a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM L. HUNTRESS,
et al.,
Plaintiffs,
-v-
18-CV-2974 (JPO)
OPINION AND
ORDER
UNITED STATES,
Defendant.
J. PAUL OETKEN, District Judge:
Plaintiffs William L. Huntress and Acquest Development, LLC (“Acquest”) (collectively, “Plaintiffs”)
bring this action against Defendant the United States
(“the Government”) under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2671 et seq., alleging malicious prosecution, intentional infliction of emotional
distress, and abuse of process by agents of the Environmental Protection Agency (“EPA”). (Dkt. No. 1
(“Compl.”).) The Government moves to dismiss the
Complaint for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) and for
failure to state a claim upon which relief may be
granted under Rule 12(b)(6). (Dkt. No. 15.) For the
reasons that follow, the Government’s motion is
granted pursuant to Rule 12(b)(1).
I.
Background
The following facts are drawn primarily from the
allegations in Plaintiffs’ Complaint, which are presumed true for purposes of deciding this motion, as
8a
well as from prior judicial opinions of which this Court
may take judicial notice.1
[2] Huntress is the President and Sole Managing
Member of Acquest, a limited liability company in
New York. (Compl. at 2.) Acquest owns two pieces of
property in Amhert, New York—one on Wehrle Drive
(the “Wehrle Property”), and the other on Transit
Road (the “Transit Property”). (Compl. at 11, 14.)
In January 2009, the Government commenced a
civil action against Acquest Transit LLC (“Acquest
Transit”)2 for violations of the Clean Water Act
(“CWA”) on the Transit Property. United States v.
Acquest Transit LLC, No. 09 Civ. 055S, 2009 WL
2157005, at *1 (W.D.N.Y. July 15, 2009). In light of
Acquest Transit’s failures to comply with the EPA’s
cease and desist orders, the court granted the
Government’s motion for a preliminary injunction and
enjoined Acquest Transit from “performing any additional earthmoving work at the” Transit Property.
1 “A district court reviewing a motion to dismiss may also
consider documents of which it may take judicial notice, including pleadings and prior decisions in related lawsuits.” Gertskis v.
U.S. E.E.O.C., No. 11 Civ. 5830, 2013 WL 1148924, at *1
(S.D.N.Y. Mar. 20, 2013). Here, the Court takes judicial notice of
the decisions in United States v. Acquest Transit LLC, No. 09 Civ.
055S, 2009 WL 2157005 (W.D.N.Y. July 15, 2009), United States
v. Acquest Dev., LLC, 932 F. Supp. 2d 453 (W.D.N.Y. 2013),
United States v. Huntress, No. 13 Cr. 199, 2015 WL 631976
(W.D.N.Y. Feb. 13, 2015), and United States v. Acquest Wehrle,
LLC, No. 09 Civ. 637, 2017 WL 6387801 (W.D.N.Y. Nov. 1, 2017).
2 Acquest Transit LLC appears to be a company managed by
Huntress. Compare United States v. Acquest Transit LLC, No. 09
Civ. 055S, 2009 WL 2157005, at *1 (W.D.N.Y. July 15, 2009) with
Compl. at 14.
9a
Acquest Transit LLC, 2009 WL 2157005, at *10–11.
That lawsuit is still pending. (Compl. at 14.)
Also in 2009, the Government filed another civil
action against Plaintiffs and Acquest Wehrle, LLC, for
CWA violations on the Wehrle Property. (Compl. at
14.) The Government later voluntarily dismissed this
action with prejudice in 2017. United States v. Acquest
Wehrle, LLC, No. 09 Civ. 637, 2017 WL 6387801, at *1
(W.D.N.Y. Nov. 1, 2017).
Later in 2011, the Government procured a sevencount indictment against Plaintiffs and Acquest
Transit accusing them of various crimes, “including
conspiracy, obstruction of justice, concealment of
material facts, and violations of the Clean Water Act.”
United States v. Acquest Dev., LLC, 932 F. Supp. 2d
453, 456 (W.D.N.Y. 2013). This indictment was eventually [3] dismissed without prejudice on the ground
that the Government had interfered with the grand
jury’s independence. Id. at 463. The dismissing court
allowed the Government leave “to seek another indictment before a different grand jury.” Id.
Subsequently, a new grand jury returned a fivecount indictment against Plaintiffs and Acquest
Transit in 2013. (Compl. at 38.) Plaintiffs and Acquest
Transit moved to dismiss the indictment, but the
court denied their motion. United States v. Huntress,
No. 13 Cr. 199, 2015 WL 631976, at *1 (W.D.N.Y. Feb.
13, 2015).3 Acquest Transit later entered into a plea
agreement with the Government, under which it
agreed to plead guilty to the criminal contempt charge
and pay a $500,000 fine. See United States v.
3 The Westlaw database misstates this case’s docket number.
Instead of No. 13 Civ. 199S, the correct case number is No. 13 Cr.
199.
10a
Huntress, No. 13 Cr. 199 (W.D.N.Y. Nov. 5, 2015), Dkt.
No. 77 at 1. The Government subsequently dismissed
the rest of the charges against Acquest Transit and
Plaintiffs. See United States v. Huntress, No. 13 Cr.
199 (W.D.N.Y. Mar. 11, 2016), Dkt. No. 85.
On April 4, 2018, Plaintiffs commenced this
lawsuit against the Government under the FTCA for
its employees’ alleged wrongdoing in connection with
the issuance of these two criminal indictments. (Dkt.
No. 1.) Specifically, Plaintiffs allege that that [sic] the
EPA agents responsible for Plaintiffs’ prosecution
improperly “procure[d the] two indictments” against
them. (Compl. at 42.) Plaintiffs assert three causes of
action in connection with the EPA agents’ alleged
improper conduct: (1) malicious prosecution, (2)
intentional infliction of emotional distress, and (3)
abuse of process. (Compl. at 42–45.)
[4] The Government now moves to dismiss the
Complaint for lack of subject matter jurisdiction
under Rule 12(b)(1) and for failure to state a claim
under Rule 12(b)(6). (Dkt. No. 15.) With briefing now
completed (Dkt. Nos. 23, 26), the motion is ripe for
resolution.
II. Legal Standards
“Generally, a claim may be properly dismissed for
lack of subject matter jurisdiction where a district
court lacks constitutional or statutory power to adjudicate it.” Kingsley v. BMW of N. Am. LLC, No. 12 Civ.
234, No. 12 Civ. 350, 2012 WL 1605054, at *2
(S.D.N.Y. May 8, 2012). “In resolving a motion to
dismiss under Rule 12(b)(1)” based solely on a facial
challenge to the sufficiency of a pleading, “the district
court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences
11a
in favor of the party asserting jurisdiction.” Tandon v.
Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d
239, 243 (2d Cir. 2014). If, however, “jurisdictional
facts are placed in dispute, the court has the power
and obligation to decide issues of fact by reference to
evidence outside the pleadings, such as affidavits.” Id.
(quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL,
671 F.3d 140, 145 (2d Cir. 2011) (per curiam)). The
party asserting subject matter jurisdiction bears “the
burden of proving by a preponderance of the evidence
that it exists.” Id. (quoting Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000)).
To survive a motion to dismiss for failure to state
a claim, a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible when a plaintiff pleads facts that
would allow “the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The Court
must accept as true all well-pleaded factual allegations in the complaint, and ‘draw [ ] all inferences in
the plaintiff’s favor.’” Goonan v. Fed. Reserve Bank of
N.Y., 916 F. Supp. 2d 470, 478 (S.D.N.Y. 2013) (alteration in original) (quoting Allaire [5] Corp. v. Okumus,
433 F.3d 248, 249–50 (2d Cir. 2006)). However, “the
tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
III. Discussion
As a threshold matter, the Court must consider
whether it has the statutory or constitutional power
to adjudicate this case. The Government argues,
12a
among other things, that the Court does not have subject matter jurisdiction to hear this case because all of
Plaintiffs’ claims are based on alleged misconduct of
the EPA agents that falls within the FTCA’s discretionary function exception. (Dkt. No. 16 at 7–11.)
Plaintiffs contend that the discretionary function
exception does not apply. (Dkt. No. 23 at 2–6.)
The FTCA waives the sovereign immunity of the
United States from suits for negligent or wrongful
conducts of government employees subject to several
exceptions. See 28 U.S.C. §§ 2671–80. Under the discretionary function exception, the Government is not
liable for any claim based upon the exercise or failure
to exercise “a discretionary function or duty on the
part of a federal agency or an employee of the Government, whether or not the discretion involved be
abused.” Id. § 2680(a).
The Supreme Court has laid out a two-part test to
evaluate whether a government employee’s conduct
falls within the discretionary function exception.
First, the alleged misconduct must involve an “element of judgment or choice” and not be compelled by
statute or regulation. Berkovitz v. United States, 486
U.S. 531, 536 (1988); see also United States v. Gaubert,
499 U.S. 315, 322 (1991). Second, the alleged misconduct must be “based on considerations of public policy.” Berkovitz, 486 U.S. at 537; see also Gaubert, 499
U.S. at 323. This latter requirement is meant to prevent courts from engaging in the “‘second-guessing’ of
[6] legislative and administrative decisions grounded
in social, economic, and political policy.” Gaubert, 499
U.S. at 323 (quoting United States v. S.A. Empresa De
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 814 (1984)). Thus, the relevant inquiry is
“whether the [government] decision is susceptible to
13a
policy analysis.” In re Joint E. & S. Dists. Asbestos
Litig., 891 F.2d 31, 37 (2d Cir. 1989) (quoting U.S. Fid.
& Guar. Co. v. United States, 837 F.2d 116, 121 (3d
Cir. 1988).
Before engaging in the Berkovitz-Gaubert test to
evaluate whether the discretionary function exception
applies, the Court first needs to determine what the
alleged government misconduct is. Apparent inconsistencies between Plaintiffs’ allegations in the
Complaint and their opposition briefing render this
analysis somewhat more difficult than it otherwise
would be. Plaintiffs’ Complaint appears to base their
FTCA malicious prosecution claims against the
Government on their allegations that the EPA agents
“procure[d] two indictments of Bill Huntress and
Acquest,” and that “[t]he agents and employees of the
EPA . . . [brought] and/or [continued] those prosecutions” with malice. (Compl. at 42.) Plaintiffs’ two other
claims—intentional infliction of emotional distress
and abuse of process—also appear to be based on the
procurement of these two indictments. (Compl. 43–
45.) But in their opposition brief, Plaintiffs appear to
move away from this basis for their claims, and
instead assert that “the Complaint is not based on
‘prosecutorial decisions . . . ,’ or a ‘decision to
prosecute,’ . . . or even a claim against a [law enforcement officer] who merely aided ‘in the investigation to
determine whether to prosecute.’” (Dkt. No. 23 at 5 n.1
(emphasis in original).) In sum, Plaintiffs assert in
their brief that their claims actually “rest[] on conduct
of federal law enforcement officers . . . [who] generally
[do not] have absolute immunity.” Id.
[7] This new position that Plaintiffs take seems
irreconcilable with their Complaint, which again,
14a
relies entirely on the Government’s alleged procurement and prosecution of the two indictments against
Plaintiffs. (See generally Compl. at 42–46.)4 Still, in
light of Plaintiffs’ retraction of its reliance on any
“prosecutorial decisions” (Dkt. No. 23 at 5 n.1), and
“draw[ing] all reasonable inferences in favor of [Plaintiffs],” Tandon, 752 F.3d at 243, the Court is willing
to adopt Plaintiffs’ construction of their allegations. In
doing so, the only conduct alleged in the Complaint
that appears to provide a basis for Plaintiffs’ claims is
the conduct of EPA agent Walter Mugdan, who was
responsible for the referral of Plaintiffs’ CWA
violations “to the Criminal Investigative Division . . .
for indictment.” (Compl. at 31.)
The Court turns now to consider whether the
discretionary function exception applies to this
alleged conduct, and concludes that both prongs of the
Berkovitz-Gaubert test are satisfied, and that the
discretionary function exception of the FTCA bars
Plaintiffs’ claims against the Government. First,
Mugdan’s conduct in referring Plaintiffs to the
Criminal Investigative Division (“CID”) appears to
have involved “an element of judgment or choice,” and
Plaintiffs do not point to any “federal statute, regulation, or policy [that] specifically prescribes a course of
4 To the extent that Plaintiffs challenge the decision to institute
prosecution against them, their FTCA claims must be dismissed
because “[p]rosecutorial decisions as to whether, when and
against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law,
and, accordingly, courts have uniformly found them to be
immune under the discretionary function exception.” Gray v.
Bell, 712 F.2d 490, 513 (D.C. Cir. 1983); see also Wang v. United
States, No. 01 Civ. 1326, 2001 WL 1297793, at *4 (S.D.N.Y. Oct.
25, 2001) (holding that prosecutorial decisions fall within the
discretionary function exception).
15a
action” Mugdan was required to follow in making a
referral recommendation to the Criminal Investigative Division (“CID”). Berkovitz, 486 U.S. at 536–37.
The decision to refer Plaintiffs’ particular case for
further criminal investigation was therefore within
the discretion of Mugdan, because “all the components
of [that] determination–whether, when, whom and
how–reflect the [8] decision-maker’s judgment of how
best to enforce compliance and to deter misconduct in
others.” K.W. Thompson Tool Co. v. United States, 836
F.2d 721, 729 (1st Cir. 1988) (dismissing a malicious
prosecution claim brought against the United States
arising from a criminal prosecution brought by EPA
agents pursuant to the discretionary function exception). Thus, the first prong of the Berkovitz-Gaubert
test is met because the decision to refer Plaintiffs’
violations to the CID is quintessentially discretionary.
See Valdez v. United States, No. 08 Civ. 4424, 2009
WL 2365549, at *7 (S.D.N.Y. July 31, 2009)
(“[D]ecisions about how to conduct investigations fall
squarely
within
the
discretionary
function
exception.”).
The second prong of the Berkovitz-Gaubert test is
also satisfied, because Mugdan’s decision to refer
Plaintiffs’ alleged CWA violations to the CID involved
policy considerations “that the discretionary function
exception was designed to shield.” Berkovitz, 486 U.S.
at 536. As the Government argues, this sort of referral, which reflects “a judgment on whether and how to
investigate,” is a quintessentially discretionary function. (Dkt. No. 16 at 10.) Indeed, in determining
whether to refer Plaintiffs’ alleged CWA violations to
the CID, Mugdan was inevitably called upon to make
policy judgments regarding the seriousness of
Plaintiffs’ CWA violations, which in turn required his
balancing of “the need to maximize compliance with
16a
[the CWA], and the efficient allocation of agency
resources.” Berkovitz, 486 U.S. at 538 (quoting Varig
Airlines, 467 U.S. at 820). In balancing these factors,
Mugdan was essentially making an “administrative
decision[] grounded in social, economic, and political
policy,” one which this Court cannot and will not
second-guess. Varig Airlines, 467 U.S. at 814; see also
Valdez, 2009 WL 2365549, at *6 (“The judgments
made as to what acts to perform in a federal investigation of criminal activity are the kinds of policy
decisions that the discretionary function exception[]
seeks to protect.”) (collecting cases).
[9] Nevertheless, Plaintiffs contend that the discretionary function exception does not apply here
because the [sic] Mugdan’s conduct as an agent of the
EPA “was illegal, unconstitutional, and . . . outside of
the scope of the EPA’s jurisdiction,” and “was designed
and carried out merely to coerce compliance . . . with
EPA demands that the EPA had no jurisdiction to
make.” (Dkt. No. 23 at 6.)
“It is, of course, a tautology that a federal official
cannot have discretion to behave unconstitutionally or
outside the scope of his delegated authority.” Myers &
Myers, Inc. v. U.S. Postal Serv., 527 F.2d 1252, 1261
(2d Cir. 1975). The Court thus agrees with Plaintiffs
that the discretionary function exception does not
shield official conduct that is either unconstitutional
or clearly outside the scope of a Government agent or
agency’s properly delegated authority, at least where
that agent or agency “was acting so far beyond its
authority that it could not have been exercising a
function which could in any proper sense be called
‘discretionary.’” Birnbaum v. United States, 588 F.2d
319, 329–33 (2d Cir. 1978) (internal quotation marks
omitted) (holding that the discretionary function
17a
exception did not apply to the CIA’s collection of
intelligence with respect to domestic security matters
because the CIA’s statutory mandate was limited to
collecting foreign intelligence), partial abrogation
recognized by Hurwitz v. United States, 884 F.2d 684
(2d Cir. 1989); see also Watson v. United States, 179 F.
Supp. 3d 251, 272 (E.D.N.Y. 2016) (holding that the
discretionary function exception did not apply to ICE’s
arrest and detention of a U.S. citizen because the
ICE’s statutory authority to arrest and detain was
limited to aliens).
Here, Plaintiffs fail to show that the EPA agent’s
conduct was “so far beyond its authority that it could
not have been exercising a function which could in any
proper sense be called ‘discretionary.’” Birnbaum, 588
F.2d at 332 (citing Hatahley v. United States, 351 U.S.
173, 181 [10] (1956)). Plaintiffs allege that in light of
the Supreme Court decision in Rapanos v. United
States, 547 U.S. 715 (2006), the state of the law
surrounding the CWA “prior to and during the time of
the alleged wrongful conduct [was too vague to have]
clearly provided that the EPA had jurisdiction” over
Plaintiffs’ land. (Compl. at 27–31.) Accordingly,
Plaintiffs argue that the EPA agents’ conduct was
unlawful and beyond the scope of their delegated
authority because the CWA was so vague such that
the EPA’s assertion of jurisdiction lacked any basis in
law. (Dkt. No. 23 at 5–6; see also Compl. at 28 (“When
the law is unclear, there is, in effect, no law; and ‘the
rule of men’ fills the void.”).
Plaintiffs’ argument is unpersuasive. As an initial
matter, Plaintiffs’ suggestion that Rapanos left the
outer boundaries of CWA jurisdiction open to
interpretation does not establish that the CWA as a
whole thereby became unconstitutionally vague such
18a
that its conferral of jurisdiction over waters of the
United States to the EPA became void. In fact, even
in the wake of the Rapanos decision, federal courts
have uniformly upheld enforcement of the CWA in
circumstances where defendants have some knowledge of the possibility that their properties contain
waters of the United States. See, e.g., United States v.
Lucas, 516 F.3d 316, 327–28 (5th Cir. 2008); United
States v. Robertson, 875 F.3d 1281, 1292–93 (9th Cir.
2017). Here, Plaintiffs were on clear notice that the
Transit Property was subject to the CWA: The EPA
had issued at least two cease and desist orders to
Plaintiffs advising them of possible CWA violations on
the Transit Property before initiating any of the
criminal lawsuits giving rise to their tort claims. See,
e.g., Acquest Transit LLC, 2009 WL 2157005, at *10.
For all of their emphasis of the ambiguity surrounding
the CWA following Rapanos, Plaintiffs fail to point to
any authority holding that the EPA’s enforcement of
the CWA following Rapanos was a categorically
unconstitutional exercise of authority.
[11] Having determined that the CWA was not void
for vagueness, the Court now asks whether the EPA’s
assertion of jurisdiction over the Transit Property and
its subsequent enforcement actions was a proper
exercise of its delegated CWA authority. The CWA
prohibits the discharge of any pollutant into “the
waters of the United States.” 33 U.S.C. §§ 1311(a),
1362(7), (12). The EPA is charged with the responsibility and the authority to enforce the CWA. See id.
§ 1319. The EPA was thus acting within its statutory
mandate when determining whether the Transit
Property contained a body of water that was part of
the “water of the United States.” Once the EPA had
determined that the Transit Property was subject to
19a
the CWA, it had the discretionary authority to faithfully enforce the CWA and to ensure Plaintiffs’ compliance with the CWA. As such, the referral of Plaintiffs’
CWA violations to CID for further investigation was a
proper exercise of the EPA’s statutory authority.5
Finally, a key premise of Plaintiffs’ argument,
namely that the EPA’s jurisdictional determinations
in the wake of Rapanos necessarily entailed complicated decision-making in an area of regulatory uncertainty, if accept [sic] as true, serves only to undermine
Plaintiffs’ contention that the EPA clearly acted outside the scope of its authority in a manner sufficient
to defeat the Government’s reliance on the discretionary function exception. Indeed, the difficult regulatory
decision of delineating the extent of CWA enforcement
to pursue following Rapanos confirms the extent to
which the EPA’s decision making was “grounded in
social, economic, and political [12] policy,” which is
precisely what the discretionary function exception
intends to shield.6 Varig Airlines, 467 U.S. at 814.
5 Indeed, at least one court to have reviewed the EPA’s
conclusion that the Transit Property was subject to the CWA in
the wake of Rapanos concluded that EPA had acted within the
scope of its CWA enforcement authority, and held that at least
for purposes of a preliminary injunction, Acquest Transit had
“failed to meet its burden of demonstrating that the Clean Water
Act’s provisions do not apply to [the Transit] Property.” Acquest
Transit LLC, 2009 WL 2157005, at *11. This court’s holding at
the very least buttresses the conclusion that the EPA did not so
clearly step outside the bounds of its statutory authority in
enforcing the CWA with respect to the Transit Property such
that the discretionary function exception cannot apply here.
6 Plaintiffs’ allegations that the EPA agents had ulterior motives
behind their enforcement conduct do not defeat the application
of the discretionary function exception, because this “exception
[Footnote continued on next page]
20a
Plaintiffs’ conclusory statement that the EPA’s jurisdiction is “not clear”—without specifying which provision of the Constitution or the CWA that Agent
Mugdan’s enforcement actions clearly violated—is
insufficient to establish that the EPA has acted “so far
beyond its authority that it could not have been exercising a function which could in any proper sense be
called ‘discretionary.’” Birnbaum, 588 F.2d 319, 33
(internal quotation marks omitted).
In conclusion, because the discretionary function
exception shields the Government from any causes of
action that Plaintiffs have asserted in their Complaint, the Complaint must be dismissed for lack of
subject matter jurisdiction.7
is indifferent to the Government actor’s motivation.” Wang, 2001
WL 1297793, at *4.
7 Plaintiffs suggest that applying the discretionary function
exception under 28 U.S.C. § 2680(a) would conflict with the lawenforcement-officer proviso to 28 U.S.C. § 2680(h). (Dkt. No. 23
at 2–3.) The Court disagrees.
Section 2680(h) bars claims against the Government “arising
out of,” among other things, “malicious prosecution[ and] abuse
of process . . . [,]” but has a proviso that waives immunity for
these torts when committed by “law enforcement officers.” 28
U.S.C. § 2680(h). Circuit courts appear to disagree over whether
claims listed in the law-enforcement-officer proviso would be
barred if they are based on the performance of discretionary
functions within the meaning of § 2680(a). Compare Medina v.
United States, 259 F.3d 220, 224–26 (4th Cir. 2001), Gasho v.
United States, 39 F.3d 1420, 1435 (9th Cir. 1994), and Gray, 712
F.2d at 507–08, with Nguyen v. United States, 556 F.3d 1244,
1257 (11th Cir. 2009), and Sutton v. United States, 819 F.2d
1289, 1297 (5th Cir. 1987).
The Court agrees with the majority of these Circuits that
Plaintiffs “must clear the § 2680(a) discretionary function
[Footnote continued on next page]
21a
[13]
IV. Conclusion
For the foregoing reasons, Defendant’s motion to
dismiss is GRANTED.
The Clerk of Court is directed to close the motion
at Docket Number 15 and to close this case.
SO ORDERED.
Dated: March 29, 2019
New York, New York
J. PAUL OETKEN
United States District Judge
hurdle” before they can proceed on their intentional torts claims
arising from law enforcement officers’ misconduct under §
2680(h). Medina, 259 F.3d at 226. Indeed, the Second Circuit has
relied on the discretionary function exception to dismiss false
arrest and malicious prosecutions claims arising from law
enforcement officers’ alleged misconduct brought against the
Government under the FTCA, without requiring the
Government to overcome the hurdle of the law-enforcementofficer proviso to § 2680(h). Wang v. United States, 61 F. App’x
757, 758–59 (2d Cir. 2003); see also Valdez, 2009 WL 2365549, at
*4–7. Because the Court has already concluded that Plaintiffs’
claims must be dismissed under the discretionary function
exception, the Court need not discuss whether the lawenforcement-officer proviso would apply here.
22a
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
_______________________________________________
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 1st day of July, two
thousand twenty.
William L. Huntress, Acquest
Development, LLC,
Plaintiffs - Appellants,
v.
United States of America,
ORDER
Docket No.
19-1147
Defendant - Appellee.
Appellants, William L. Huntress and Acquest
Development, LLC, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The
panel that determined the appeal has considered the
request for panel rehearing, and the active members
of the Court have considered the request for rehearing
en banc.
IT IS HEREBY ORDERED that the petition is
denied.
FOR THE COURT:
Catherine O’Hagan Wolfe
23a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM L. HUNTRESS, AND
ACQUEST DEVELOPMENT, LLC
PLAINTIFFS,
V.
THE UNITED STATES,
§
§
§
§ CIVIL ACTION NO.
§ [1:18-cv-02974]
§
DEFENDANT.
COMPLAINT
Now come William L. Huntress and Acquest
Development, LLC, Plaintiffs, by and through their
attorneys, LUPKIN PLLC, THE CORNWELL LAW FIRM,
and G. ROBERT BLAKEY, seeking damages pursuant to
the Federal Tort Claims Act.
TABLE OF CONTENTS
I.
Parties ......................................................... [24a]
II.
Nature of Claims and Jurisdiction ............. [24a]
III.
Venue ........................................................... [26a]
IV.
Scope of the Conspiracy .............................. [27a]
V.
Conditions Precedent .................................. [28a]
VI.
The Facts, Part One: Overview .................. [28a]
VII. The Facts, Part Two: Chronology of Events . [35a]
VIII. The Facts. Part Three: Avoiding The Rule
of Law .......................................................... [40a]
IX.
The Constitutional Requirement of Clear
Notice........................................................... [43a]
X.
Applying the Constitutional Principles to
This Case ..................................................... [48a]
24a
XI.
Intent, Part One: Using Vagueness as
a Tool ........................................................... [57a]
XII. Intent, Part Two: A Disdain for the
Constitution and Supreme Court ............... [60a]
XIII. Intent, Part Three: Additional Facts
Showing Maliciousness ............................... [63a]
XIV. First Cause of Action – Malicious Prosecution
..................................................................... [75a]
XV. Second Cause of Action – Intentional
Infliction of Emotional Distress ................. [76a]
XVI. Third Cause of Action: Abuse of Process.... [78a]
XVII. Conspiracy ................................................... [79a]
XVIII.Damages, and Prayer for Relief ................ [80a]
[2]
I.
PARTIES
1. Acquest Development, LLC is a New York limited
liability company (hereinafter, “Acquest”).
2. Plaintiff William L. Huntress (referred to herein
as, “Bill Huntress”) is a resident of the Town of
Amherst, N.Y. and the President and Sole Managing Member of Acquest.
3. This Complaint addresses acts committed by employees of federal agencies, including the Environmental Protection Agency (“EPA). However, the
only defendant is the United States. No person or
governmental agency is named as a Defendant.
II.
NATURE OF CLAIMS, AND JURISDICTION
1. This Complaint against the United States seeks
damages pursuant to the Federal Tort Claims Act
25a
(hereinafter, the “FTCA”), 28 U.S.C. § 2671, et seq.
and 28 U.S.C. § 1346(b)(1). The damages include
compensation for economic losses and personal injuries (damages to reputation, emotional distress
and mental anguish, humiliation and loss of consortium) caused by the negligent, wrongful and
intentional acts and omissions of employees of the
United States, while acting within the scope of
their offices and employment, under circumstances where the United States, if a private person, would be liable to the Plaintiffs in accordance
with the laws of the State of New York.
2. Such employees include EPA employees Walter
Mugdan, Phyllis Feinmark, Mary Ann Theising,
David Pohle, Douglas McKenna, and Murray
Lantner, as well as others whose identities are
currently unknown and whose conduct will be the
subject of formal discovery, as permitted by Fed.
R. Civ. Proc. 11(b)(3).
[3]
3. Because this Complaint includes causes of action
in the nature of malicious prosecution and abuse
of process, Plaintiffs further allege that, with
respect to those causes of action, the negligent,
wrongful and intentional acts and omissions were
committed by “investigative or law enforcement
officers” as defined in 28 U.S.C.A. § 2680(h), specifically, Special Agents of the Criminal Investigation Division of the EPA (hereinafter, “CID
agents”), including but not limited to Robert
Conway, William V. Lometti, David McLeod,
Brian Kelly, and Daniel Lau, assigned to the
EPA’s New York, NY Reporting Office, EPA
Region 2, 290 Broadway, New York, NY 10007.
26a
4. To the extent that other federal agency employees
who also participated in causing the malicious
prosecution and/or abuse of process were not
“investigative or law enforcement officers” as
defined in 28 U.S.C.A. § 2680(h), Plaintiffs allege
that such employees aided and abetted, conspired
with, and acted in concert with “law enforcement
agents” in initiating and committing those
wrongs, and that their conduct constituted overt
acts by conspirators in furtherance of the
conspiracy.
III.
VENUE
1. Venue is proper in the Southern District of New
York pursuant to 28 U.S.C.A. § 1402(b), in that
acts and omissions forming the basis of this
Complaint were committed by EPA employees
assigned to and working within the EPA’s New
York City Regional Offices, including acts and
omissions by CID agents Robert Conway, William
V. Lometti, David McLeod, Brian Kelly, and
Daniel Lau, assigned to the EPA’s New York
Reporting Office, EPA Region 2, 290 Broadway,
New York, NY 10007. Such acts include but are
not limited to acts and omissions that caused the
filing of unfounded felony criminal charges
against the [4] Plaintiffs, maliciously and without
probable cause, in two successive criminal cases,
The United States of America v. Acquest
Development, LLC and William L. Huntress, Case
Number 1:11-CR-00347, filed in the Western
District of New York on November 09, 2011, and
The United States of America v. Acquest
Development, LLC and William L. Huntress, Case
27a
Number 1:13-CR-00199, filed in the Western
District of New York on September 19, 2013.
IV.
SCOPE OF THE CONSPIRACY
1. By this Complaint, Plaintiffs seek damages
proximately caused by the filing of felony criminal
charges in those two cases. (Those felony charges
will hereinafter be referred to as “the
indictments.”)
2. The indictments against both Bill Huntress and
Acquest were subsequently dismissed.
3. Paragraph II.4 is incorporated by reference herein.
Further, pursuant to Fed. R. Civ. Proc. 11(b)(3),
Plaintiffs allege that the wrongful conduct that
forms the basis of this Complaint may have
included conduct by employees of the Army Core
[sic] of Engineers (“ACOE”), as well as attorneys
of the U.S. Department of Justice, and/or the
United States Attorney’s Office for the Western
District of New York (collectively, “DOJ”), who
knew or should have known of, and/or recklessly
disregarded the Constitutional prohibitions that
made the indictments of Bill Huntress and
Acquest unlawful. If subsequent discovery
produces evidence of this fact, then that conduct
by ACOE and/or DOJ employees would constitute
relevant and admissible evidence of overt acts of
co-conspirators who participated in the wrongful
conduct at issue herein.
[5]
4. Relevant times. This Complaint involves events
that began in 1997, and government acts and
28a
omissions in connection with those events that
have continued to the present date.
V.
CONDITIONS PRECEDENT
1. Plaintiffs have fully complied with all conditions
precedent in 28 U.S.C. § 2675 of the Federal Tort
Claims Act.
2. This suit has been timely filed, in that Plaintiffs
timely served notice of these claims on both The
Environmental Protection Agency and The United
States Department of Justice on April 3, 2017.
Notwithstanding the objectives of 28 U.S.C. §
2675, the EPA and the DOJ have refused to
discuss settlement of these claims.
3. Further, no agency of the government denied the
claim in writing or otherwise made any final
disposition of the claim within six months after
the claim was filed, pursuant to 28 U.S.C. § 2675.
Thus, the Plaintiffs (claimants) do hereby deem
such inaction to be a denial of the claim, and file
this Complaint with the Court as permitted by 28
U.S.C. § 2675(a).
4. Damages proximately caused by the conduct at
issue are capped by 28 U.S.C. § 2675(b) at the
amount of $387,629,459.
VI.
THE FACTS, PART ONE: OVERVIEW
1. The relevant events began in 1997 when Bill
Huntress and Acquest bought a small property in
Amherst, New York for development. The
purchase ultimately led to two civil cases filed by
the government in 2009, and two criminal
29a
indictments filed in 2011 and 2013. Eight years
later (in 2017), one of the two civil cases was
dismissed with prejudice on the government’s
motion. Four and one half years after the first of
the two criminal indictments was filed, all [6]
criminal charges against Bill Huntress and
Acquest were dismissed. The second of the two
civil cases is still ongoing.
2. This Complaint contains three causes of action:
malicious prosecution, intentional infliction of
emotional distress, and abuse of process, as well
as the law of conspiracy.
3. All of the claims for relief arise from government
efforts to coerce Bill Huntress – initially, via civil
complaints seeking millions of dollars in civil
penalties – into accepting the EPA’s assertion of
jurisdiction over his private land, upon the
rationale that the land constituted part of “the
waters of the United States” within the meaning
of the CWA. When that form of coercion proved to
be insufficient, the government twice indicted
him, both to increase the pressure and punish him
for his temerity in refusing to give in to the EPA’s
demands, and compel acceptance oftheir [sic]
assertion of alleged jurisdiction over his private
property.
4. This Complaint seeks damages caused to
Huntress by the two indictments. Because the
malicious prosecution, conspiracy, intentional
infliction of emotional distress, and abuse of
process causes of action each require that
Plaintiffs establish intentional conduct on the part
of the government, this Complaint provides
substantial factual detail of that intent.
30a
5. There was no “probable cause” for the criminal
charges because the Constitution of the United
States requires that charges of criminal conduct
may only be based on clear, unambiguous law that
proscribes alleged criminal conduct in writing,
and in advance of the occurrence of the conduct.
As will be described in detail herein, no such law
existed prior to or during the time period that the
conduct at issue in the indictments occurred.
Thus, the conduct alleged in the two indictments
was not “a crime,” and neither Bill Huntress’s nor
Acquest’s conduct was unlawful.
[7]
6. The government’s conduct in indicting Bill
Huntress and Acquest, however, was unlawful.
Further, for the reasons described in detail below,
the government’s agents intentionally committed
that wrongful conduct.
7. In making its decision to indict Bill Huntress and
Acquest, the government was not following the
objectives of Congress when Congress enacted the
CWA. The two indictments of Bill Huntress and
Acquest were not a criminal prosecution arising
from, or based on, any alleged harm to the environment (and no such harm occurred). Instead,
they were criminal prosecutions based on the
EPA’s notion that the EPA – whether acting
properly, or improperly, or even if acting without
jurisdiction – must be obeyed. The EPA’s objective
was to compel such obedience, and to punish Bill
Huntress and Acquest for perceived disobedience.
8. Bill Huntress was born in 1956 in Rochester, New
York. When he was 8 years old, his family moved
to the Buffalo/Clarence New York area, where –
31a
except for the 4 years he served in the United
States Air Force, from which he was honorably
discharged – he has lived ever since. In May, 1981,
he graduated from the University of Buffalo with
a Bachelor of Science degree in Business. He first
worked as a Certified Public Accountant for Price
Waterhouse Coopers (until 1985), and then
Realmark Properties (a real estate investment/
development firm). In August, 1988, Bill Huntress
started his company, Acquest. Bill Huntress is the
sole member and manager of Acquest. Over the
succeeding years, he built (through Acquest and
its related, single purpose entities) beautiful
commercial [8] buildings for a long list of prominent private companies.1 He also had a long,
amicable and profitable relationship with the federal government, building commercial structures
to house federal agencies all across the United
States.2
1 Acquest’s private clients included Children’s Hospital, Kaleida
Health System, Millard Fillmore Hospital, Buffalo Cardiology &
Pulmonary, Buffalo General Hospital, Dent Neurologic Institute,
Moog, Inc., Flower City Printing, The Mentholatum Company,
American Packaging, AT&T, Prudential Securities, American
Airlines, Headquarters, Inc., Federal Insurance Company,
Liberty Mutual Insurance, Schindler Elevator Corporation,
Bathfitter, Red Bull North America, Inc., Sodexho America, LLC,
Pilkington North America, Inc., Shred - It USA, Inc., Hobart
Corporation, and Security Credit Systems.
2 Acquest’s contracts with federal government agencies included
the National Labor Relations Board, the United States Attorney,
the U.S. Small Business Administration, the Immigration &
Naturalization Services, the U.S. Department of Commerce, the
U.S. Drug Enforcement Administration, U.S. Bankruptcy Court,
U.S. Food & Drug Administration, the U.S. Department of Labor,
the U.S.D.A. National Wildlife Research Center, the U.S.
[Footnote continued on next page]
32a
9. Bill Huntress and his company were forced out of
business at the end of 2011 when the first of the
two indictments was procured by the EPA,
publicly accusing Bill Huntress and his company
of being felons.
10. By this Complaint, Plaintiffs do not seek to
diminish the necessary and proper scope of the
jurisdiction granted by Congress to the Executive
Branch for the protection of our environment. Bill
Huntress, as a husband, a father, and a creator of
beautiful buildings, understands and supports the
Congressional decision to entrust the EPA with
the power to deter those who would otherwise
pollute our environment with hazardous wastes.
11. In the opening section of a previous version of the
EPA’s own website (now moved to the website
archive, at https://archive.epa.gov/epa/aboutepa/
epa-history-1970-1985.html), in an article written
in 1985 styled, “EPA History (1970-1985”), the
EPA states:
[9] When the U.S. Environmental Protection
Agency [was] formed some fifteen years
Department of Health and Human Services, the U.S. Public
Defender, the U.S. General Services Administration, the Social
Security/Office of Hearings & Appeals, the Federal Executive
Board, the Defense Contract Management Agency, the USGS
Ecological Science Center, the U.S.D.A. Animal Plant Health
Inspection Service, the U.S. Navy, the Internal Revenue Service,
the U.S. Forest Service, the U.S. Department of Veteran’s Affairs, the U.S. Customs and Border Protection, the U.S. Treasury
Inspector General, the Department of Homeland Security, the
U.S. Senator’s Office, the Federal Protective Service, the
Railroad Retirement Board, the Occupational Safety and Health
Administration, the U.S. Department of Transportation, and
even the U.S. Environmental Protection Agency (a/k/a, the EPA).
33a
ago, America had just awakened to the
seriousness of its environmental pollution
problem. Creation of [the] EPA was part
of the response to growing public concern
and a grass roots movement to “do something” about the deteriorating conditions
of water, air, and land.
For years, raw sewage, industrial and
feedlot wastes had been discharged into
rivers and lakes without regard for the
cumulative effect that made our waters
unfit for drinking, swimming, and boating. Smokestack omissions and automobile exhausts made air pollution so bad in
certain communities that some people
died and many were hospitalized. The
land itself was being polluted by
indiscriminate dumping of municipal and
industrial wastes and some very toxic
chemicals that would later come to the
fore when their steel drum containers
would rust and leak hazardous materials
into soil and aquifers.3
12. The undeniable need for the EPA was accurately
described in the Congressional Declaration of
Goals and Policy in 33 U.S.C.A. § 1251. Therein,
Congress listed such objectives as the elimination
of discharges of pollutants into navigable waters
and the ocean; the development of technology
necessary to eliminate such discharges; and the
protection of water quality for the propagation
3 Some may even recall the previous year when, on June 22,
1969, the Cuyahoga River in Cleveland, Ohio, was so polluted it
caught fire.
34a
and preservation of fish, shellfish, and wildlife. By
this Complaint, Plaintiffs do not intend to
denigrate the accomplishments of the EPA in
addressing those problems. To the contrary, by
this Complaint, Plaintiffs seek to hold the EPA
accountable for its radical departure from the
mission entrusted to it by Congress.
[10]
13. Over the years, the EPA has garnered justifiable
public support whenever it stands tall to stop
those who threaten to harm what we all recognize
as the increasingly fragile environment in which
we live, thereby preserving for us and our
posterity a country where healthy foods, clean
water, and diverse wildlife will abound.
14. Plaintiffs bring this Complaint because the EPA
in this case lost sight of its Congressional mandate, and ignored the Constitutional principles
that limit its power as an executive branch
administrative agency. The EPA’s focus on Bill
Huntress was not the Congressional focus when
Congress created the EPA or enacted the Clean
Water Act. Bill Huntress did not dump poisonous
chemicals or toxic waste into the ground, much
less into “the waters of the United States.” Bill
Huntress farmed a piece of land that had been
farmed for a hundred years, moved some dirt
around, brought some fill dirt onto the land, and
built an access road onto the land. Nowhere in its
multiple civil complaints, or in the criminal
indictments that the EPA procured against Bill
Huntress and his company, did the EPA ever
35a
allege that Bill Huntress had harmed or even
threatened to harm the environment.4
15. The EPA’s objective was not to secure an
indictment of someone who had violated the law,
for the EPA had no probable cause to believe that
Huntress or Acquest had violated the law. Instead, the totality of the circumstances described
herein, the actual government conduct at issue,
and the actual words of EPA employees responsible for that conduct, evidence an abuse of the
EPA’s powers in an effort to coerce and punish
what the EPA considered to be a recalcitrant
landowner who refused to kowtow to the EPA’s
edicts; a belief by agents of the EPA that the end
justifies the means; and a conviction that, above
all else, the EPA must be obeyed.
[11]
VII.
THE FACTS PART TWO: CHRONOLOGY OF THE EVENTS
1. In 1997, Acquest bought a 20-acre commercially
zoned property on Wehrle Drive in the Town of
Amherst. It was a purchase that began with hope
and great expectations for Bill Huntress. It was a
property that should have (and otherwise would
have) produced the same high quality commercial
4 This case is much like the Vidrine case (Hubert P. Vidrine, et
al v. United States of America, 2012 WL 253124 (W.D. La.
1/26/2012, no appeal)), as well as others across the United States,
in which, even though no harm to the environment occurred or
was even threatened, and no actual crime was committed, the
EPA brought criminal charges to serve its own administrative
interest in increasing its power, and/or merely satisfying the
personal interests or egos of one or more of its employees. The
government conduct at issue in this case produced only a
mindless waste of public and private resources, and senseless
harm to a law abiding citizen of our country.
36a
development for the Town of Amherst that
Acquest routinely built for private companies and
governmental agencies across the United States.
2. It was not an investment that Bill Huntress made
naively, or out of a lack of experience in developing
commercial property. To the contrary, Bill
Huntress purchased the Wehrle land with a clear
understanding of the need (and the investigation
necessary) to determine legal restrictions applicable to such developments, including applicable
environmental laws and regulations. It was, however, a project that did not present – and should
have never come to involve – any insurmountable
environmental obstacles.
3. At the time of Acquest’s purchase of the Wehrle
land, there was an existing ACOE Nationwide
Permit allowing the previous owner to fill .99
acres of an alleged 2.6 acre “isolated wetland” on
the property (a permit that ran with the land).
The Wehrle land was isolated from any traditional
navigable waterways, and in 2001, Bill Huntress
obtained from the ACOE a (clearly correct)
jurisdictional determination that the Wehrle land
contained only “isolated wetlands” not subject to
regulation under the Clean Water Act.
4. In August, 2000 (approximately three years after
purchasing the land), Bill Huntress learned that
the property was subject to an unrecorded 50-year
development moratorium that, years before, had
been required by the EPA as a condition of an EPA
monetary grant to the Town of Amherst for sewer
improvements.
37a
[12]
5. The agreement between the EPA and the Town of
Amherst was styled “Grant and Moratorium
Agreement.” It memorialized the EPA’s agreement to pay the Town $5.8 million for sewer improvements in exchange for the Town’s agreement
to prevent certain properties from tapping into
portions of the Town’s new sewer system.
6. The property Acquest purchased on Wehrle Drive
was subject to the Grant and Moratorium Agreement, but the Agreement had never been properly
recorded in the County Clerk’s Office, or in the
manner required by New York state law in the
State Environmental Quality Review Act, so individual property owners (including Bill Huntress)
never received notice of the Grant and
Moratorium Agreement.
7. Under the Grant and Moratorium Agreement, the
EPA and the Town had arbitrarily, and without
any legal justification, labeled the Wehrle land as
“environmentally sensitive.” The EPA/Amherst
agreement thus effected an unconstitutional taking of the Wehrle land without just compensation.
8. On November 21, 2002, the EPA issued a
determination that the Wehrle land constituted a
“Special Case” – an unusual and rarely used
procedure. The EPA took this step in order to take
control away from the ACOE and reverse the
ACOE’s legally correct determination from the
year before (in 2001), that the small isolated spot
of “wetlands” was not within ACOE or EPA
jurisdiction.
38a
[13]
9. The EPA’s “special case” designation violated a
1989 EPA and ACOE Memorandum of Agreement
that made the ACOE determination binding on
the federal government. United States Army
Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807,
1812 (2016).5
10. The EPA’s “special case” assertion was the first in
a series of acts taken by the EPA with the apparent objective of showing Bill Huntress that the
EPA possessed great power to dictate what, if
anything, Bill Huntress could do with his private
property, and to deter him from challenging the
EPA’s edicts, or its alleged authority to issue
them.
11. Huntress sued the EPA and the ACOE in federal
court, claiming that the Wehrle land was exempt
from wetlands regulation under the CWA. On
June 20, 2008, the District Court issued a decision
dismissing the complaint against the federal
defendants for lack of subject matter jurisdiction
on the ground that the EPA’s wetlands designation and the ACOE’s rescission of plaintiff’s
provisional work permit did not constitute final
agency action within the meaning of the
Administrative Procedures Act.
12. In the same suit, Huntress had also sued The
Town of Amherst seeking a judgment declaring
5 ACOE jurisdictional determinations “are binding for five years
on both the Corps and the Environmental Protection Agency,
which share authority to enforce the Clean Water Act. See 33
U.S.C. §§ 1319, 1344(s); 33 CFR pt. 331, App. C; EPA,
Memorandum of Agreement: Exemptions Under Section 404(F)
of the Clean Water Act § VI-A (1989).”
39a
that the 50 year sewer moratorium agreement
entered in 1983 between the Town and the EPA
has resulted in an unconstitutional taking of
property without just compensation. The federal
court also dismissed that claim, holding that the
Court lacked jurisdiction because the claim was
not ripe, since Huntress had not unsuccessfully
attempted to obtain just compensation through
available
state
procedures.
Subsequently,
Huntress sued the Town of Amherst in state
court, and in June of 2016, following a series of
appeals from the jury [14] verdict in that case, the
Town of Amherst paid Acquest $3.94 million for
illegally terminating Acquest’s office-park project
planned for the Wehrle land.
13. But Huntress still could not move forward with
the development of the Wehrle land, because
Huntress’s problems with the EPA continued. And
what began with the Wehrle land in August, 2000,
continued when Huntress purchased a 97-acre
farm on Transit Road in Amherst in 2006 (hereinafter referred to as the “Transit Road land”).
14. Ultimately, in 2009, the EPA sued Bill Huntress
and Acquest in two civil cases, alleging Clean
Water Act violations at both the Wehrle and
Transit Road sites.
15. When the threat of the massive civil penalties that
the EPA sought in those two cases did not achieve
sufficient coercive effect, in 2011 and 2013 the
EPA procured not one, but two criminal indictments of Bill Huntress and Acquest.
16. As will be described in greater detail below, the
two indictments – which were procured in substantial part at the urging of Walter Mugdan, a
40a
senior official in the EPA’s New York Office – were
both defective. The first was dismissed by the
Court due to prosecutorial misconduct committed
during the grand jury proceedings; and both the
first and second indictments rested on conduct
that was not prohibited conduct under the law
because the EPA had no jurisdiction over the
Transit Road land. All charges against Huntress
and Acquest were finally dismissed in 2016.
17. On September 25, 2017, the government filed a
motion to dismiss the Wehrle civil case with prejudice; and on November 1, 2017, the Court granted
the motion. The Transit Road civil case is still
ongoing.
[15]
VIII.
THE FACTS. PART THREE: AVOIDING THE RULE OF LAW
1. At its heart, this Complaint involves two fundamental concepts on which our country, and our
Constitution, rest. The first is the due process
principle that the lives, freedoms and property of
the citizens of this country cannot be taken away
at the whim of those who hold government power.
Such governmental takings are only permitted for
clear wrongdoing which is proscribed in unambiguous, understandable, written terms before the
conduct occurs.
2. The second concept is that of separation of powers.
Recognizing that power corrupts, our forefathers
acted to create a government devoid of general,
undefined, amorphous powers, whereby each
branch and each entity within each branch of the
government might determine the scope of its own
41a
power.6 Under our system, those who are
entrusted with the power to run federal agencies
may not determine the scope of their own powers
– the jurisdiction of federal agencies is determined
solely by Congress (as construed, of course, by the
federal courts, if necessary and if possible, when a
statute is unclear).
3. Our country is based on the rule of law, as
contrasted with totalitarian regimes around the
world that tolerate “the rule of men.” Our
adherence to due process and a separation of [16]
powers thus preserves the “freedom” that we are
perhaps most proud of the United States – the
freedom from fear of our own government.
4. By this Complaint, Plaintiffs seek damages
caused by the EPA’s rejection of those principles;
its efforts to define its own jurisdiction; and its
determination to exercise its great power at its
6 Credit for the phrase “Power tends to corrupt, and absolute
power corrupts absolutely,” is often given to John Dalberg-Acton
(a/k/a, The Right Honourable The Lord Acton), as contained in
his letter to Bishop Mandell Creighton, April 5, 1887. (See,
Historical Essays and Studies, edited by J. N. Figgis and R. V.
Laurence, London: Macmillan, 1907.) However, the basic concept
was clearly part of the much earlier thinking of our country’s
founding fathers. See, e.g., Jay, John; Hamilton, Alexander;
Madison, James. The Federalist Papers. Unique Classics. Kindle
Edition at 809-810. (“No man is allowed to be a judge in his own
cause, because his interest would certainly bias his judgment,
and, not improbably, corrupt his integrity. With equal, nay with
greater reason, a body of men are unfit to be both judges and
parties at the same time.”) See also, The Structure of the
Government Must Furnish the Proper Checks and Balances
Between the Different Departments – Alexander Hamilton or
James Madison, February 8, 1788. The Federalist Papers.
Unique Classics. Kindle Edition at 4591.
42a
whim over privately owned land and upon those
who own the land.
5. In this case, the EPA took those actions even after
it had attempted and failed to convince the United
States Supreme Court that Congress (via the
CWA) had given it jurisdiction over land like that
owned by Bill Huntress.
6. The EPA thereby rejected the rule of law, and
assumed the role of a despot.
When we consider the nature and the
theory of our institutions of government,
the principles upon which they are supposed to rest, and review the history of
their development, we are constrained to
conclude that they do not mean to leave
room for the play and action of purely
personal and arbitrary power. * * * [T]he
fundamental rights to life, liberty, and the
pursuit of happiness, considered as individual possessions, are secured by those
maxims of constitutional law which are
the monuments showing the victorious
progress of the race in securing to men the
blessings of civilization under the reign of
just and equal laws, so that . . . the
government . . . ‘may be a government of
laws and not of men.’ For the very idea
that one man may be compelled to hold his
life, or the means of living, or any material
right essential to the enjoyment of life, at
the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.
43a
Yick Wo v. Hopkins, 118 U.S. 356, 369-370
(1886)(emphasis added).
IX.
THE CONSTITUTIONAL REQUIREMENT
OF CLEAR NOTICE
1. Our Constitution prohibits the government from
charging a citizen of the United States with
committing “a crime” that is not clearly defined by
law as “a crime” prior to the time the conduct at
issue occurred. Constitution of the United States,
Article I, section 9, and Fifth and Fourteenth
Amendments.7
2. This is commonly referred to as the “void for
vagueness” doctrine. “It is a basic principle of due
process that an enactment is void for vagueness if
its prohibitions are not clearly defined.” Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972).
Clearly defined means that a statute (on its face,
or as it has been construed by federal courts) must
“define the criminal offense with sufficient
definiteness that ordinary people can understand
what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory
7 See, also, Calder v. Bull 3 Dall. 386, 389-90 (1798); Frank v.
Mangum, 237 U.S. 309, 344 (1915); United States v. Harriss, 347
U.S. 612, 617 (1954)(“The constitutional requirement of
definiteness is violated by a criminal statute that fails to give a
person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute. The underlying principle is
that no man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed.”);
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)(“No one may be
required at peril of life, liberty or property to speculate as to the
meaning of penal statutes.”); Bouie v. City of Columbia, 378 U.S.
347, 351 (1964).
44a
enforcement.” Kolender v. Lawson, 461 U.S. 352,
357 (1983)(emphasis added).
3. This principle was summarized by the Supreme
Court in U.S. v. Lanier, 520 U.S. 259 (1997), in
this way:
There are three related manifestations of
the fair warning requirement. First, the
vagueness doctrine bars enforcement of “a
statute which either forbids or requires the
doing of an act in terms so vague that men
of common intelligence must necessarily
guess at its meaning and differ as to its
application.” * * * Second, as a sort of
“junior version of the vagueness doctrine,”
H. Packer, The Limits of the Criminal
Sanction 95 (1968), the canon of strict
construction of criminal statutes, or rule of
lenity, ensures fair warning by so resolving
ambiguity in a criminal statute as to apply
it only to conduct clearly covered. * * *
Third, although clarity at the requisite
level may be supplied by judicial gloss on
an otherwise uncertain statute, . . . due
process bars courts from applying a novel
construction of a criminal statute to
conduct that neither the statute nor any
prior judicial decision has fairly disclosed
to be within its [18] scope. * * * In each of
these guises, the touchstone is whether the
statute, either standing alone or as
construed, made it reasonably clear at the
relevant time that the defendant’s conduct
was criminal.
520 U.S. at 266-267 (Emphasis added.
Internal citations omitted.)
45a
See also, U.S. v. Santos, 553 U.S. 507 (2008),
wherein the Court affirmed the dismissal of the
defendant’s criminal conviction because there
were two equally plausible interpretations of a
criminal statute, stating, “Under a long line of our
decisions, the tie must go to the defendant. The
rule of lenity requires ambiguous criminal laws to
be interpreted in favor of the defendants subjected
to them.”
4. In FCC v. Fox Television Stations, Inc, 567 U.S.
239 (2012),the Supreme Court provided a brief
history of the Court’s recognition of these fundamental principles:
A fundamental principle in our legal system is that laws which regulate persons or
entities must give fair notice of
conduct that is forbidden or required.
See Connally v. General Constr. Co., 269
U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322
(1926) (“[A] statute which either forbids or requires the doing of an act in
terms so vague that men of common
intelligence must necessarily guess at
its meaning and differ as to its application, violates the first essential of due process of law”); Papachristou v. Jacksonville,
405 U.S. 156, 162, 92 S.Ct. 839, 31
L.Ed.2d 110 (1972) (“Living under a rule
of law entails various suppositions, one of
which is that ‘[all persons] are entitled to
be informed as to what the State commands or forbids’ ” (quoting Lanzetta v.
New Jersey, 306 U.S. 451, 453, 59 S.Ct.
618, 83 L.Ed. 888 (1939) (alteration in
original))). This requirement of clarity
46a
in regulation is essential to the protections provided by the Due Process Clause
of the Fifth Amendment. See United
States v. Williams, 553 U.S. 285, 304, 128
S.Ct. 1830, 170 L.Ed.2d 650 (2008). It
requires the invalidation of laws that are
impermissibly vague. A conviction or
punishment fails to comply with due
process if the statute or regulation
under which it is obtained “fails to
provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously
discriminatory enforcement.” Ibid. As
this Court has explained, a regulation is
not vague because it may at times be
difficult to prove an incriminating fact but
rather because it is unclear as to what fact
must be proved. See id. at 306, 128 S.Ct.
1830. (Emphasis added.)
567 U.S. at 253 (emphasis added)
[19]
5. Finally, federal agencies, just like federal courts,
must have jurisdiction in order to exercise their
delegated powers – jurisdiction granted by the
Constitution, or the legislature.8
8 See, e.g., U.S. v Hudson and Goodwin, 11 U.S. (7 Cranch) 32,
34 (1820)(Congress must specify the crime, and the punishment,
and designate a court with jurisdiction); and US v Bevans, 16
U.S. (3 Wheat) 336 (1818)(Marshall J.)(a murder in the Boston
Harbor not prosecutable even though within the general
jurisdiction of the United States because Congress had not
designated a Court to try it).
47a
6. A helpful summary as to this last principle was
recently provided by Circuit Judge Newman in his
dissenting opinion in Return Mail, Inc. v. United
States Postal Service, 868 F.3d 1350, at 1371-1372
(Fed. Cir. 2017):
This court has an independent obligation
to ascertain its own jurisdiction and that
of the tribunal below. See Mitchell v.
Maurer, 293 U.S. 237, 244, 55 S.Ct. 162,
79 L.Ed. 338 (1934) (“An appellate federal
court must satisfy itself not only of its own
jurisdiction, but also that of the lower
courts in a cause under review.”).
Although the foregoing concerns a court’s
review of a lower court’s jurisdiction, the
same principle applies to review of an
agency’s jurisdiction. See, e.g., Da Cruz v.
INS, 4 F.3d 721, 722 (9th Cir. 1993)
(considering, sua sponte, whether the BIA
lacked jurisdiction). This inquiry cannot
be waived. It is a “judicial function,” and
not that of an agency, to decide the limits
of the agency’s statutory powers. Social
Sec. Bd. v. Nierotko, 327 U.S. 358, 369, 66
S.Ct. 637, 90 L.Ed. 718 (1946).
“An agency is but a creature of statute.
Any and all authority pursuant to which
an agency may act ultimately must be
grounded in an express grant from
Congress.” Killip v. Office of Pers. Mgmt.,
991 F.2d 1564, 1569 (Fed. Cir. 1993). See
also Sealed Air Corp. v. United States Int’l
Trade Comm’n, 645 F.2d 976, 993 (CCPA
1981) (“Any authority delegated or
granted to an administrative agency is
48a
necessarily limited to the terms of the
delegating statute.”); Gibas v. Saginaw
Mining Co., 748 F.2d 1112, 1117 (6th Cir.
1984) (administrative agencies are vested
only with the authority given to them by
Congress); Atchison, Topeka & Santa Fe
Ry. Co. v. Interstate Commerce Comm’n,
607 F.2d 1199, 1203 (7th Cir. 1979)
(same).
7. Given the requirements of both fair notice and
actual jurisdiction, it is clearly unlawful for an
agency to cause someone to be indicted for violating its regulations when the law is so unclear that
no one can know whether the agency even has
jurisdiction over the person or [20] his property,
i.e., whether the statute the agency purports to be
enforcing even applies to the property and/or
conduct at issue.
X.
APPLYING THE CONSTITUTIONAL PRINCIPLES
TO THIS CASE
1. The application of these Constitutional principles
to the facts of this case is simple, easy and clear.
This Court need not rely on Bill Huntress’s
assertion of lack of clear notice.
2. Both of the indictments at issue were premised on
acts and omissions that were allegedly illegal
solely because of the EPA’s alleged jurisdiction
over the Transit Road land. Therefore, the allegedly wrongful acts and omissions could only have
been unlawful if the EPA actually had jurisdiction
over the Transit Road land – i.e., it was necessary
that the CWA clearly applied to land such as the
Transit Road land.
49a
3. The CWA statute, on its face, applies only to
“navigable waters,” which the statute defines as
“the waters of the United States.” Thus, for the
government to have lawfully indicted Bill
Huntress and Acquest, it was constitutionally
required that the Transit Road land, as a matter
of law, was clearly part of “the waters of the
United States.”
4. In enacting the CWA, Congress first described the
statute as covering the country’s “navigable
waters,” but then defined “navigable waters” as
“the waters of the United States.”
5. The application of the CWA to certain bodies of
water (like the Niagra River) has been clear, and
without dispute. The Supreme Court also has
determined that certain “wetlands” are part of
“the waters of the United States.”
6. The Supreme Court has determined that other
bodies of water (such as isolated ponds) are not
covered by the CWA because they are not part of
“the waters of the United States.” (See, [21] e.g.,
Solid Waste Agency of Northern Cook CTY. v.
Army Corps of Engineers, 531 U.S. 159, 173
(2001))
7. However, at no point in time, prior to or during
the conduct at issue in the two indictments (20052010), or even since then, has the Supreme Court
ever been able to determine whether lands like
the Transit Road land are part of “the waters of
the United States.” More specifically, due to the
vagueness of the CWA, the Supreme Court has
tried, but been unable to determine whether land
like the Transit land constitutes a “water of the
United States.”
50a
8. The Transit Road land looks much like the many
other farm lands in the area. It has no standing
surface water except for one small pond that contains rain water, and puddles that last for a few
days after a heavy rain, or in the spring during
snow melt when the ground is still frozen.
9. During the years Bill Huntress owned the land,
crops were grown on the land.
10. During 2005-2010, the law was clear that not all
wetlands are “jurisdictional wetlands,” i.e., not all
wetlands are part of “the waters of the United
States.”
11. For land such as the Transit Road land to be part
of “the waters of the United States,” the first
requirement is that the land be a “wetland,” and
both indictments thus contained allegations to
that effect.
12. In its first indictment, the government alleged
that the Transit Road land was “wetlands.”
13. In its second indictment, the government repeatedly referred to the Transit Road land as containing “potential wetlands.” That new phrasing
was at least a tacit admission that even the first
requirement of the criminal charge was, in this
case, unclear. That ambiguity alone made the
indictment unlawful.
[22]
14. But the ambiguities only begin with that first
basic requirement that the Transit Road land be
a “wetland.” The scope of the ambiguities and uncertainties explodes with the larger and ultimate
issue of whether the land is a “jurisdictional
wetland,” i.e. is part of “the waters of the U.S.”
51a
15. As to that issue, not even the United States
Supreme Court, when it considered the issue, was
able to determine whether land such as the
Transit Road land was part of “the waters of the
United States,” and thus, whether or not the CWA
applies to such land.
16. The allegedly wrongful conduct, as specified in the
two indictments, occurred between June of 2005
and May 25, 2010. During that time period, the
controlling Supreme Court jurisprudence on this
issue was Rapanos v. U.S., 547 U.S. 715 (2006).
17. At issue in Rapanos were alleged wetlands that
are located remotely from traditional navigable
waters, that only lie near ditches (such as the
roadside ditch that lies outside of and runs
parallel to the west end of the Transit Road land);
that are not adjacent to any navigable water (such
as the Niagra River); that do not abut any
navigable water; and that contain no permanent,
standing or continuously flowing body of water,
such as a stream, ocean, river, or lake, but only an
isolated pond, or puddles of water lasting for a few
days after a big rain or while snow is melting in
the early spring, and rain water ditches through
which water flows intermittently or ephemerally,
providing drainage for rainfall.
18. Also at issue in Rapanos, as identified in the
opinions of at least some of the Justices, was the
importance, if any, of “boundary-drawing” clarity.
As described by Justice Scalia, that issue exists
whenever (as with the Transit Road land) the
alleged wetlands are located near a roadside ditch
which might be part of “the waters of the United
States,” and any surface [23] water covering the
“wetlands” does (or does not) create difficulty in
52a
determining the boundary between the wetlands
and the nearby “waters of the United States.”
Some of the Justices in Rapanos believed that
when there is no “boundary-drawing problem”
caused by a continuous surface water connection
with a water body that is part of “the waters of the
United States” in its own right, such a wetland is
not part of “the waters of the Unites [sic] States.”
Other justices disagreed.
19. The characteristics of the land at issue in Rapanos
are the characteristics of the Transit Road land.
20. When the Supreme Court in Rapanos attempted
to answer the question of whether such wetlands
(or potential wetlands) are part of “the waters of
the United States,” the Court was not able to
answer the question. The Rapanos opinion was 63
pages long (547 U.S. at 749 to 812), and contained
five (5) quite distinct and differing sets of views on
this issue, one opinion by Justices Scalia, Roberts,
Thomas, and Alito, a second concurring opinion by
Chief Justice Roberts, a third opinion (concurring
only in the judgment) by Justice Kennedy, a
fourth opinion by Justice Stevens (in which
Souter, Ginsburg and Breyer joined, dissenting),
and a fifth opinion by Justice Breyer. There was
no majority opinion, and thus no decision – no
answer by the Court to the critical question.
21. Left undecided, and thus unclear as a matter of
law, was even which factor, or factors, discussed
in the various opinions of the various Justices,
individually, or in combination, were material,
much less which factors were critical, in determining whether alleged wetlands of the general
nature at issue might be part of “the waters of the
United States.”
53a
[24]
22. Not only was the applicability of the CWA to such
land indisputably unclear after the Rapanos
decision was issued in 2006, it has remained
unclear to date, because Congress has enacted no
amendments clarifying the CWA, and neither the
EPA nor the ACOE has promulgated any lawfully
enacted, new, final administrative rule of law
(C.F.R. provision) removing the ambiguity.9
23. There had been no clarification even by the time
of Justice Alito’s reminder of the “notorious” lack
of clarity in the CWA in the Sackett case in 2012:
“The reach of the Clean Water Act is
notoriously unclear. Any piece of land that
is wet at least part of the year is in danger
of being classified by EPA employees as
wetlands covered by the Act, and according to the Federal Government, if property
owners begin to construct a home on a lot
that the agency thinks possesses the
requisite wetness, the property owners
are at the agency’s mercy. The EPA may
issue a compliance order demanding that
the owners cease construction, engage in
expensive remedial measures, and abandon any use of the property. If the owners
do not do the EPA’s bidding, they may be
9 A “lawfully promulgated” regulation, often called a “legislative
rule” must be within the scope of the rulemaking authority
conferred on the agency by Congress, and must be enacted in
compliance with the procedures prescribed by the APA. Sweet v.
Sheahan, 235 F.3d 80 (2nd Cir. 2000). The EPA did not issue any
such new rule “defining waters of the U.S.” between the date of
the Rapanos decision, and May, 2010, which was the last date of
any allegedly “illegal” conduct by Bill Huntress.
54a
fined up to $75,000 per day ($37,500 for
violating the Act and another $37,500 for
violating the compliance order).”
Sackett v. E.P.A., 566 U.S. 120, 132 (2012)
Nor has there been any clarification since the date
of those comments.
24. That is what this case is all about. Bill Huntress
spent years and millions of dollars in legal fees
resisting the EPA’s assertions of jurisdiction over
his land because the law – including both the
CWA statute itself, and the duly promulgated
EPA regulations – was indecipherably [25] vague
and ambiguous. Bill Huntress simply could not
know – nor, for that matter, could the EPA know
– whether or not the CWA applied to his land.
25. The EPA not only punished Bill Huntress for what
he could not know, it did so under the guise of
having jurisdiction over his property after it had
argued its interpretation of its jurisdiction to the
Supreme Court, and the Supreme Court had
declined to adopt the EPA’s interpretation.
26. Not once, but twice, the EPA procured indictments of Bill Huntress and his company based on
the EPA and ACOE’s “interpretation” that the
CWA applied to land like the Transit Road land –
the very interpretation of the CWA that the
Solicitor General (on behalf of EPA and ACOE)
had presented to (and been rejected by) the
Supreme Court in Rapanos, namely, that the
CWA gives those agencies jurisdiction over land
like the Transit land because such land constitutes a “water of the United States.”
27. Throughout Rapanos, the Supreme Court discussed whether it could grant “deference” to that
55a
interpretation. The Court’s consideration of such
deference appears repeatedly throughout the
plurality, concurring and dissenting opinions in
Rapanos. (547 U.S. at 749, 752, 756, 758, 766, 778,
799, 803, 805, 809, 810, 811.)
28. As indicated by the Supreme Court’s extensive
consideration of the deference issue, the Court
had before it all of the EPA’s interpretations,
regulations and opinions regarding the scope of
the EPA’s perceived jurisdiction. In the end, the
Supreme Court declined to grant deference to the
agencies’ interpretation.
[26]
29. And what did the government do after the
Rapanos Court found that the CWA was too vague
to grant deference to the agencies’ interpretation?
It simply ignored the Rapanos decision, and used
the agencies’ interpretation to get Bill Huntress
indicted – and not once, but twice.
30. The EPA ignored the Constitution, thumbed its
nose at the Supreme Court, and sent Bill
Huntress a message (in the form of an indictment): “Leave it to the EPA to determine what the
law is; it is none of your – or for that matter, the
Supreme Court’s – business.”
31. In the context of that government conduct, the
changes in the wording of the second of the two
indictments is revealing. First, as noted above,
there was the change from an allegation of
“wetlands” to “potential wetlands.”
32. In addition, the first indictment contained two
“Clean Water Act” counts, Counts 6 and 7, both
styled “Unpermitted filling of Wetlands,” and both
citing to Title 33, (specifically, 33 U.S.C. §§
56a
1319(c)(2)(A) and 1311(a)). In the second
indictment, those Title 33 Counts were
eliminated.
33. Both the changes from wetlands to potential wetlands, as well as the deletion of those Title 33
Counts, suggest an effort by the government to
cleverly avoid the issue of the “notoriously
unclear” provisions of the Clean Water Act. But
the effort was ineffective, since all of the counts in
both indictments arose out of alleged requirements (legal obligations) under the Clean Water
Act.10 In fact, both indictments specifically
alleged that not only the [27] Title 33 Counts, but
also the Title 18 charges rested on numerous provisions of the Clean Water Act. See, e.g., Second
indictment, ¶’s 4-10 at pages 2-4, under the
10 Count I in both indictments asserted a conspiracy involving
efforts “[t]o defraud the United States, that is, to hamper, hinder,
impede, impair, and obstruct by craft, trickery, deceit, and
dishonest means, the lawful and legitimate functions of the EPA
and the Corps in enforcing federal environmental laws and
regulations. Similarly, Count 2 of both indictments charged a
violation of 18 U.S.C. 1519 based on an alleged “intent to impede,
obstruct, and influence the investigation and proper administration of a determination by the U.S. Environmental Protection
Agency (EPA) as to the applicability of the Clean Water Act to
the Site.” The same fatal defect was present for the charges
under 18 U.S.C. § 1001 in Counts 3 and 4 of both indictments,
which rested on alleged false statements made to the EPA
regarding a “wetlands determination” and use of the land for
agricultural purposes. Thus, the elimination in the second
indictment of the two Title 33 (Clean Water Act) charges failed
to cure the jurisdictional defect. All of the felony charges in both
indictments rested on alleged jurisdiction of the EPA over the
Transit Road land, jurisdiction which simply did not exist under
the CWA in any clear, unambiguous manner, as constitutionally
required to support the felony charges in the indictment.
57a
heading, Authority of the Environmental
Protection Agency over the Clean Water Act.
34. The Constitutional issue in the context of those
indictments is not whether the EPA “had
jurisdiction” over land like the Transit Road land,
but whether the law prior to and during the time
of the alleged wrongful conduct clearly provided
that the EPA had jurisdiction. If it was not clear
that the EPA, via the CWA, had actual authority
over the Transit Road land, then it was equally
not clear that Bill Huntress’s conduct was illegal.
35. As the Supreme Court noted in FCC v. Fox
Television Stations, Inc., supra, “punishment fails
to comply with due process if the statute or regulation under which it is obtained “fails to provide
a person of ordinary intelligence fair notice of what
is prohibited.” Since not even men and women of
extraordinary intelligence (the Justices of the
United States Supreme Court) could determine
whether land such as the Transit Road land was
part of “the waters of the United States,” ipso
facto, persons of ordinary intelligence had no fair
notice.
36. What was clear when the government indicted
Bill Huntress and his company is that the indictments were unlawful.
[28]
XI.
INTENT, PART ONE: USING VAGUENESS AS A TOOL
1. The EPA’s efforts to sanction Bill Huntress for not
kowtowing to the edicts it issued to him were
deliberately lawless, because those edicts rested
on EPA assertions of “jurisdiction” over him and
his land which the Supreme Court had refused to
accept.
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2. The use and abuse of such vagueness is a tool that
EPA has come to rely on in its “enforcement”
activities – a pattern of choosing vagueness over
“fair notice” in its own regulations.
3. One example illustrating the point is the latest
definition of “the waters of the United States”
promulgated by the EPA in 2015 and published as
33 C.F.R. § 328.3 and 40 C.F.R. § 230.3 (identical
language), a definition which is 2,218 words long,
and is a model of unconstitutional vagueness and
incomprehensible ambiguity. Therein, the EPA
even unabashedly proclaims that “the term
waters of the United States” means “All waters in
paragraphs (a)(7)(I) through (v) of this section
where they are determined, on a case-specific
basis, to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. The waters identified in each of paragraphs
(a)(7)(I) through (v) of this section are similarly
situated and shall be combined, for purposes of a
significant nexus analysis.”
4. Within § 328.3 (at § 328.3(c)(5)) there is also
another similarly vague definition, a definition of
“significant nexus.” No one – at least no citizen in
our country – should be forced to risk a prison
term on his guess as to how the EPA might interpret and apply the words significant nexus in any
given case.
5. The EPA’s long standing practice of employing
such ambiguity in its rule making process evidences a deliberate choice – an intent to prevent
mere citizens from being able to know [29] what
“the law” requires, and thereby preserve the
EPA’s flexibility to punish those who refuse to
accept its unilateral interpretations of the law by
59a
subjecting the recalcitrants to millions of dollars
in fines, and even criminal indictment.
6. This kind of government conduct is not at all
uncommon where the rule of law does not exist.
The EPA says the ambiguity means one thing; the
landowner says it means another. And the EPA
wins the argument for the simple reason that
most landowners do not have the resources to
fight; and those who do will be indicted if they
persist in not allowing the EPA to win. That is
what happened to Bill Huntress.
7. When the law is unclear, there is, in effect, no law;
and “the rule of men” fills the void. That is what
Bill Huntress faced in this case.
8. By perpetuating vagueness, and eschewing fair
notice, the EPA preserves its ability to wield its
massive resources at will, “on a case by case
basis.” By citing its interpretations in justification
of its edicts, the EPA performs a clever slight-ofhand. It is a facade; it is the rule of men
masquerading as the rule of law: the law is what
the EPA says it is.
9. The EPA’s historical use of vagueness to achieve
its objectives has now been officially renounced by
the executive branch of our government. The
President, and the heads of the EPA and ACOE
have now publicly denounced the “rule of men”
within the EPA and ACOE, and ordered it to stop
in the Executive Order of February 28, 2017, titled
“Restoring the Rule of Law.” It was then confirmed by the EPA and ACOE in their March 6,
2017 Federal Register Notice, wherein both agencies explicitly recognized that, “It is important
that stakeholders and the public at large have
60a
certainty as to how the CWA applies to their [30]
activities.” Whether that newly proclaimed official
policy will become actual EPA practice, or how
long it may take if it does, remains unclear.11
XII.
INTENT, PART TWO: A DISDAIN FOR THE
CONSTITUTION AND SUPREME COURT
1. We briefly discussed above the concerns that led
our founding fathers to create a separation of
federal government powers in order to prevent the
abuse of power.
2. The indictment of Bill Huntress and his company
that occurred in this case represents the kind of
abuse of power by despotic monarchs that our
founding fathers sought to exclude from government in our country. Both those events and the
words of the EPA’s senior management suggest a
disdain within the EPA for those Constitutional
principles.
3. This disdain was openly expressed by the EPA’s
former Regional Counsel for EPA Region 2, now
the EPA’s Director of the Emergency and Remedial Response Division, Walter Mugdan, of the
EPA’s regional office in New York City.
4. At a conference held in New York City on July 27,
2007, involving Bill Huntress, two of his corporate
11 Long standing EPA practices tend to persist, as illustrated by
the EPA’s refusal to even discuss a possible settlement of this
case after these claims were administratively filed in early April
of this year, notwithstanding the clear Congressional objective or
promoting early, informal resolution of federal tort claims by
requiring that, as a condition precedent to filing a lawsuit, an
Administrative Claim be filed. (See ¶ V.2, pg. 4 above.)
61a
officers, and representatives of the EPA, the EPA
said it would only allow Huntress to develop some
of the Wehrle land if they paid $2,000,000 to the
government, and that otherwise they would have
to pay $400,000 and could never develop the
Wehrle property. In response, the General
Counsel of Acquest Wehrle stated that he did not
believe the EPA could demonstrate that it had any
jurisdiction over the Wehrle land under the Clean
Water Act. Mr. Mugdan became very agitated,
and making reference to the Supreme Court [31]
decision in Rapanos v. U.S., 547 U.S. 715 (2006),
in which Chief Justice Roberts joined the opinion
of Justice Scalia and wrote a separate opinion of
his own criticizing ACOE’s and EPA’s essentially
boundless views of the scope of their powers, Mr.
Mugdan then asserted, “Let the Chief Justice try
to enforce it!”
5. Mr. Mugdan’s view that the
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