Opposition — Diamond v. United States

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-OCTOBER TERM, 1979 |

HERMAN DIAMOND, PETITIONER Jog

v. |

UNITED STATES OF AMERICA, ET AL.

. ON PETITION FOR A WRIT OF C IORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WADE H. MCCREE, JR. |

Solicitor General

JAMES W, MOORMAN

Assistant Attorney General

ROBERT L. KLARQUIST

JOSHUA I. SCHWARTZ

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

On the Pupreme Court of the United tates

OCTOBER TERM, 1979

No. 80-190

HERMAN DIAMOND, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

‘QUESTIONS PRESENTED

1. Whether the United States’ exercise of regula-

tory jurisdiction over Georgia tidal marshlands within

the navigable waters of the United States pursuant to

Section 10 of the Rivers and Harbors Act of 1899, 33

U.S.C. 408, is prohibited by an 1802 agreement be-

tween the United States and the State of Georgia es-

tablishing the boundaries of that state or this Court’s

I

Il

decision in Oregon ex rel. State Land Board v. Cor-

vallis Sand & Gravel Co., 429 U.S. 363 (1977).

2. Whether the district judge erred in denying

petitioner’s application for his recusal.

3. Whether the United States Attorney was au-

thorized to file and prosecute a civil action to enjoin

petitioner, who had not obtained the necessary permit

from the Corps of Engineers, from filling a tidal marsh

in the navigable waters of the United States.

4. Whether petitioner was denied due process by

the district court’s consolidation of the two cases on

review here.

ITI

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

International Business Machines Corp., In

i Gb ha tds ok ee en cee eens

Johnson v. Manhattan Ry., 289 U.S. 479 .

Kaiser Aetna v. United States, 444 U.S.

Dk cbs 0:ks ch chek tetas ete Ks

Oregon ex rel. State Land Board v. Cor-

vallis Sand & Gravel Co., 429 U.S. 363 .

Parker Precision Products Co. v. Met-

ropolitan Life Ins. Co., 407 F.2d 1070 ..

Parrish v. Board of Commissioners of the

Alabama State Bar, 524 F.2d 98, cert.

GHEE SE Us ok deb hoe daha cers

United States v. Grinnell Corp., 384 U.S.

United States v. Rands, 389 U.S. 121.....

Zabel v. Tabb, 480 F.2d 199, cert. denied,

Ge ee Cd CNG han VER) ve ne ches bees

IV

Cases—Continued:

Zdanok v. Glidden Co., Durkee Famous

Foods Division, 327 F.2d 944, cert. de-

AG Ee Cs Wo kaso V ve u be-0 RENEE On

Statutes, rule and regulation:

Act of April 7, 1798, ch. 28, 1 Stat. 549 ...

Act of May 10, 1800, ch. 50, 2 Stat. 69 ....

Rivers and Harbors Act of 1899, 33 U.S.C.

401 et seq.:

Section 10, 33 U.S.C. 403 ............

Section 17, BB 4.8.0. G16... ok. cvenciece

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POR. es OP, F. GD). isis cs cvnecccvese ced

33 C.F.R. 209.120(f) (1974) ....... cece eee

Miscellaneous:

1 American State Papers (Class VIII)—

Public Lands, Document No. 69 (Lowrie

CRE hig nds Cee aadee sc ielcaneetnns

Page

10

OPINIONS BELOW

The April 28, 1980, opinion of the court of appeals

and the June 24, 1980, substitute opinion of the court

of appeals rendered on the government’s petition for

rehearing in the nature of clarification (Pet. App.

16a-18a) are not reported. The district court’s August

2, 1978, opinion denying petitioner’s motion to set

aside the judgment in Civ. Action No. 3092 (App. A,

infra, la-13a) and its August 2, 1978, opinion in Civ.

Action No. 475-221 (App. B, infra, 14a-21a) are not

reported. The district court’s order of May 9, 1979,

denying petitioner’s application for recusal (App. C,

infra, 22a-25a) and the July 20, 1979, order granting

summary judgment to the defendants in Civ. Action

No. 477-80 (App. D, infra, 26a-35a) are likewise not

reported.!

The district court’s previous opinion in Civ. Action

No. 3092 is not reported. The Fifth Circuit’s opinion

affirming the district court’s judgment on the earlier

occasion is reported at 512 F.2d 157 (1975), and this

Court’s denial of certiorari is reported at 423 U.S. 928

(1975).

JURISDICTION

The judgment of the court of appeals was entered on

April 28, 1980. Petitioner’s petition for rehearing was

denied on May 28, 1980. The government’s petition for

rehearing in the nature of clarification was granted,

and a substitute opinion was rendered on June 24,

1980. Petitioner’s petition for rehearing, reclarifica-

1The district court opinions were not included in petitioner’s

appendix and have therefore been reproduced here.

1

2

tion, and recall of mandate was denied on July 21,

1980. The petition for a writ of certiorari was filed on

August 8, 1980. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner is the owner of a tract of tidal marsh-

land along Richardson Creek, a navigable tributary of

the Wilmington River located in Chatham County,

Georgia. In 1965, petitioner received permission from

the United States Army Corps of Engineers to build a

dock into Richardson Creek, but did not apply for a

permit to fill the land. Petitioner began filling his

property in 1966 and continued through 1973. Com-

mencing in 1972, representatives of the Corps and the

Georgia Department of Natural Resources repeatedly

informed petitioner that the filling was unauthorized

and illegal.2 Thereafter, on April 5, 1978, the United

States filed an action against petitioner in the United

States District Court for the Southern District of

Georgia seeking a permanent injunction against fur-

ther filling of the tidal marsh and a mandatory injunc-

tion to compel removal of the illegally placed fill. The

State of Georgia was granted leave to intervene as a

plaintiff. The district court found that the area that

had been filled by petitioner was within the navigable

waters of the United States and that petitioner’s fil-

ling in the absence of a Corps of Engineers permit

violated Section 10 of the Rivers and Harbors Act of

2As a result of one encounter, petitioner was arrested and

charged in Chatham County Court with the misdemeanor of-

fense of filling marshland without a state permit. Petitioner was

acquitted, after a jury trial, on January 22, 1974.

3

1899, 33 U.S.C. 408. The district court therefore per-

manently enjoined petitioner from further fill activities

on his property. United States v. Diamond, Civ. Ac-

tion No. 3092 (S.D. Ga. April 17, 1974).

Petitioner appealed to the United States Court of

Appeals for the Fifth Circuit, which affirmed. United

States v. Diamond, 512 F.2d 157 (1975). The Fifth

Circuit rejected, inter alia, petitioner’s arguments

that the United States Attorney had not been au-

thorized to commence or prosecute the action and that

petitioner’s filled property did not lie within the navig-

able waters of the United States. Petitioner then

sought review in this Court, raising, inter alia, the

question whether the United States’ exercise of regu-

latory jurisdiction over Georgia tidal marshlands

within the navigable waters of the United States con-

flicts with the 1802 “Georgia Cession” (1 American

State Papers (Class VIII)—Public Lands, Document

No. 69 (Lowrie ed. 1834) (Pet App. la-2a)) establish-

ing the boundaries of that state. No. 75-287, O.T.

1975, Pet. 9. This Court denied certiorari. 423 U.S.

928 (1975).

2. Petitioner had filed an application with the Corps

of Engineers fur an after-the-fact permit to authorize

existing and future fill. The Corps denied this permit

application on March 26, 1974, citing detrimental ef-

fects of the proposed fill and adverse comments from

interested parties and the State of Georgia. See 33

C.F.R. 209.120(f) (1974). Petitioner than filed an ac-

tion in the United States District Court for the South-

ern District of Georgia, Diamond v. United States,

Civ. Action No. 475-221, to obtain judicial review of

the permit denial. The district court granted the gov-

4

ernment’s motion to consolidate this action with Civ.

Action No. 3092, the government’s injunctive action

discussed above. Petitioner also filed motions under

Fed. R. Civ. P. 60(b) seeking relief from the judgment

in Civ. Action No. 3092 on various grounds and moved

to set aside the order consolidating the two cases.

On August 2, 1978, the district court rendered two

separate opinions, one denying the Rule 60(b) motions

in Civ. Action No. 3092 (App. A, infra) and the other

upholding the denial of the after-the-fact permit in

Civ. Action No. 475-221 (App. B, infra). The court

found that petitioner’s motions to set aside the judg-

ment in Civ. Action No. 3092 were untimely in part

and were, in any event, without merit. The court re-

jected petitioner’s renewed arguments that the filled

tidal marsh lies outside the navigable waters of the

United States, that the land is outside the jurisdiction

of the Corps of Engineers under the 1802 “Georgia

Cession” or 16 U.S.C. 662(h), and that the filing of the

government’s original complaint was unauthorized. In

Civ. Action No. 475-221, the district court found that

the Corps’ denial of a permit was rational and in ac-

cordance with law. The court also denied petitioner’s

motion to set aside the consolidation of the two ac-

tions, citing its broad discretion in the management of

its own docket (App. A, infra, at 12a—13a).

3. In the interim, petitioner had commenced

Diamond v. Marland, Civ. Action No. 477-80 (S.D.

Ga.), a civil rights damage action against an official of

the Georgia Department of Natural Resources and

various officials of the Corps of Engineers, charging

that the defendants caused him to be illegally arrested

5

in 1973 (see page 2, note 2, swpra), had conspired to

secure filing of the complaint in the government’s in-

junctive action (Civ. Action No. 3092), and had pre-

sented false or misleading testimony or prepared mis-

leading evidence in that case. Petitioner moved to dis-

qualify District Judge Lawrence in this damage action

pursuant to 28 U.S.C. 144. The application rested es-

sentially upon the Judge’s conduct of the government’s

injunctive action. This application was denied from the

bench, and the court subsequently received a letter

from petitioner’s counsel disclaiming any intention to

pursue the matter (App. C, infra, 23a, n.2)

On May 7, 1979, three days prior to a scheduled

hearing on defendants’ motions for summary judgment

in the damage action, petitioner, by then acting pro se,

filed a “Complaint and Injunction,” designated Civ.

Action No. 479-159, by which he again sought to dis-

qualify the District Judge from continuing to preside in

the damage action. He alleged personal bias and re-

cited in addition that Judge Lawrence had ruled

against him regarding the 1802 “Georgia Cession” and

had confiscated petitioner’s property. Treating the

complaint as a renewed application for recusal pur-

suant to 28 U.S.C. 144 and 455, the district court de-

nied the application (App. C, infra). The court noted

that all of petitioner’s allegations, save one, com-

plained of his judicial conduct and essentially chal-

lenged prior rulings. The remaining allegation, as-

serting the judge’s membership in a club claimed to

exclude members of an unspecified “minority class” to

which petitioner allegedly belongs, was found legally

insufficient to support disqualification.

6

The district court entered an opinion on July 20,

1979, granting summary judgment as to all defendants

who had been served in the damage action (App. D,

infra). The court held that all of petitioner’s claims

were barred by res judicata and collateral estoppel

based upon the judgments in Civ. Action Nos. 3092

and 475-221, supra, and a prior damage action in

which the district court had also granted summary

judgment for the defendants. Diamond v. Marland,

395 F. Supp. 482 (S.D. Ga. 1975).

4. The court of appeals affirmed the various judg-

ments and orders appealed from in a single per curiam

opinion (Pet. App. 16a-18a), stating only that its rul-

ing did not impair petitioner’s right to maintain a dock,

as distinguished from filling.4

ARGUMENT

The decision below is correct, does not conflict with

any decision of this Court or any court of appeals, and

does not present any issue warranting review by this

Court. The petition for certiorari is the culmination of

years of litigation in numerous actions and seeks to

re-open matters that were fairly, correctly, and finally

decided.

%Petitioner did not appeal the adverse judgment in the earlier

damage action.

4In addition to the actions discussed above, petitioner

brought a damage action against the Assistant United States

Attorney who handled Civ. Action No. 3092. Summary judg-

ment was granted to the defendant based upon official immu-

nity. Diamond v. Walter, Civ. Action No. 479-87 (S.D. Ga.).

The court of appeals affirmed on August 5, 1980.. Diamond v.

Walter, No. 80-7121 (5th Cir.). Petitioner has petitioned for re-

hearing.

7

1. Petitioner asserts (Pet. 8-10) that, despite the

provisions of the Rivers and Harbors Act of 1899, the

State of Georgia has exclusive jurisdiction to regulate

activities, including fill, in navigable waters within its

boundaries. This is plainly incorrect. See, e.g., Kaiser

Aetna v. United States, 444 U.S. 164, 171-172 (1979),

and cases cited therein. In support of his contention,

petitioner cites the 1802 “Georgia Cession,” an agree-

ment negotiated between commissioners representing

the United States and comissioners representing

Georgia, fixing the boundaries of that State and ceding

excess territory claimed by Georgia to the United

States.5 Nothing in this agreement, authorized by the

Act of April 7, 1798, ch. 28, 1 Stat. 549, and the Act of

May 10, 1800, ch. 50, 2 Stat. 69, relinquishes the

power of the United States under the Commerce

Clause (see Kaiser Aetna v. United States, supra) to

regulate the use of navigable waters.® Petitioner mis-

takes a disclaimer of federal title for relinquishment of

regulatory power. Federal power to regulate place-

ment of fill in the navigable waters of the United

States does not depend on title to land. Zabel v. Tabb,

430 F.2d 199, 206 (5th Cir. 1970), cert. denied, 401

U.S. 910 (1971); ef. United States v. Rands, 389 U.S.

121, 127 (1967). Petitioner’s reliance on Oregon ex rel.

State Land Board v. Corvallis Sand & Gravel Co., 429

5 As noted at page 3, supra, petitioner raised this issue in his

earlier petition for certiorari in No. 75-287.

®Article II of the Cession (Pet. App. 2a-3a), on which

petitioner apparently relies, merely disclaims any federal asser-

tion of plenary jurisdiction of the kind exercised in the ter-

ritories as to lands within the Georgia boundaries established.

Georgia’s sovereignty within its boundaries thus remained equal

to that of all other states.

8

U.S. 363 (1977), is misplaced for the same reason.

Corvallis holds only that state law ordinarily controls

the determination of the effect of movement of a

navigable river upon title to the riverbed. The deter-

mination of title is not in issue here.

2. Petitioner challenges (Pet. 10-11) Judge Law-

rence’s denial of his application for recusal. The appli-

cation stated no grounds sufficient to require recusal.

It is fundamental that in order to require recusal the

“alleged bias and prejudice * * * must stem from an

extrajudicial source and result in an opinion on the

merits on some basis other than what the judge

learned from his participation in the case.” United

States v. Grinnell Corp., 384 U.S. 568, 583 (1966).

Here, petitioner’s allegations relatedeto past judicial

rulings. Disqualification was not appropriate in these

circumstances. See, e.g., In re International Business

Machines Corp., 618 F.2d 923, 928 (2d Cir. 1980). The

remaining ground offered in support of the request for

recusal—the district judge’s alleged membership in a

club excluding members of an unspecified class in-

cluding petitioner—is insufficient to show personal

bias infecting the court’s ruling. Parrish v. Board of

Commissioners of the Alabama State Bar, 524 F.2d

98, 101 (5th Cir. 1975) (en banc), cert. denied, 425 U.S:

944 (1976); cf. Parker Precision Products Co. v. Met-

ropolitan Life Ins. Co., 407 F.2d 1070, 1077-1078 (3d

Cir. 1969).7

7Petitioner has now urged (Pet. 10-11) new grounds for dis-

qualification pertaining to the district judge’s personal associa-

tions, which were not presented below. They should not be con-

sidered here. In any event they present no more basis for re-

cusal than the grounds previously urged. We also question the

9

3. Petitioner challenges (Pet. 18-19) the authority of

the United States Attorney to file and prosecute Civ.

Action No. 3092. He argued this point unsuccessfully

to the Fifth Circuit on his first appeal in 1975 (United

States v. Diamond, supra, 512 F.2d at 159), but de-

clined to raise it in his petition for certiorari seeking

review of that judgment. Petitioner’s contention is, in

any event, without merit. Pursuant to 33 U.S.C. 413,

it is the responsibility of the Department of Justice to

“conduct the legal proceedings necessary to enforce

the provisions of * * * [33 U.S.C.] 403 * * *.” This re-

sponsibility may be carried out through the appropri-

ate United States Attorney. 28 U.S.C. 547.8

timeliness of petitioner’s May 7, 1979, application for recusal.

See 28 U.S.C. 144; In re International Business Machines

Corp., supra, 618 F.2d at 932.

®Petitioner has previously argued that the filing of the com-

plaint in Civ. Action No. 3092 was unauthorized, absent a re-

quest therefor from the Secretary of the Army or his delegate.

On petitioner’s first appeal to the Fifth Circuit, that court cor-

rectly concluded that no such request was necessary. United

States v. Diamond, supra, 512 F.2d at 159. Moreover, the rec-

ord below shows that a request was in fact made.

Petitioner’s allegations (Pet. 11-12) of misconduct by the at-

torney for the government are utterly unfounded. Petitioner’s

claims apparently refer to an unrelated case, because Chief

Judge Brown, who petitioner asserts questioned Assistant

United States Attorney Walter’s conduct, was not on the panel

that rendered either of the court of appeals’ opinions in this liti-

gation. We were informed by the United States Attorney’s Of-

fice that the incident to which petitioner probably refers was a

suggestion by Chief Judge Brown at oral argument in an unre-

lated criminal case that, inasmuch as Mr. Walter’s conduct of

the prosecution had been questioned, albeit unsuccessfully, it

would have been preferable to assign the appellate argument for

the government to another attorney. No court reprimanded Mr.

Walter for prosecutorial misconduct, nor was he severed in-

10

4, Petitioner seems to perceive (Pet. 19-22) a denial

of due process in the court of appeals’ citation of its

earlier decision in United States v. Diamond, 512

F.2d 157, cert. denied, 423 U.S. 928 (1975). Petitioner

describes the earlier judgment as vacated. This is in-

correct. The court of appeals never vacated its judg-

ment. Petitioner apparently argues that the district

court’s consolidation of Civ. Action No. 475-221 (the

action for review of the Corps’ denial of an after-the-

fact permit) with Civ. Action No. 3092 automatically

vacated the judgment of the district court in the latter

case, which had by then been affirmed by the court of

appeals, with review denied by this Court. It is a suffi-

cient answer to this novel contention to note that the

consolidation of cases does not destroy the separate

identity of each. Johnson v. Manhattan Ry., 289 U.S.

479, 496-497 (1933); Zdanok v. Glidden Co., Durkee

Famous Foods Division, 327 F.2d 944 (2d Cir.), cert.

denied, 377 U.S. 934 (1964).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

ROBERT L. KLARQUIST

JOSHUA I. SCHWARTZ

Attorneys

SEPTEMBER 1980

voluntarily from employment with the United States Depart-

ment of Justice.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Civil Action No. 3092

Civil Action No. 475-211

UNITED STATES OF AMERICA, PLAINTIFF

v.

HERMAN DIAMOND, DEFENDANT

HERMAN DIAMOND, PLAINTIFF

Vv.

UNITED STATES OF AMERICA AND

UNITED STATES ARMY CORPS OF ENGINEERS,

SAVANNAH DISTRICT, DEFENDANTS

OPINION AND ORDER ON DIAMOND’S MOTIONS

TO SET ASIDE PRIOR JUDGMENT AND ORDER OF

CONSOLIDATION OF THE TWO ACTIONS

I

On April 5, 1973, the United States filed a suit

against Herman Diamond. I will hereafter refer to this

action as Suit One. The complaint alleged that defend-

ant was illegally filling estuarine marshes in violation

la

2a

of 33 U.S.C. §§ 403 and 407.1 The land in question is

marshland lying on Richardson Creek in Chatham

County, Georgia. The Government sought a perma-

nent injunction against further filling and a mandatory

injunction to remove existing fill or, alternatively,

compensatory and punitive damages.

I entered a temporary restraining order on the same

day the action was filed.

On April 7, 1973, the State of Goergia requested

leave to intervene in the action. The Intervenor sought

a permanent injunction, pursuant to State law and

regulations, against further filling of the coastal

marshlands of Georgia. I granted the motion subject to

objection by defendant. The intervention raised the

question of the State’s title to marshlands. I have

never ruled on that issue and do not intend to.

On June 14, 1973, Mr. Diamond applied to the Corps

of Engineers for an after-the-fact permit allowing him

to continue the fill operations on his property. In a let-

ter dated March 26, 1974, the District Engineer denied

such application on the ground that “the issuance of an

After-the-Fact Permit for the proposed and existing

fill would not be in the public interest. . . .”

An Opinion-Order was issued in Suit One on April

17, 1974. In it this Court found that Richardson Creek

was navigable within the meaning of the Rivers and

Harbors Act of 1899. “Defendant filled the two-acre

1Section 403 prohibits “creation of any obstruction not affirm-

atively authorized by Congress, to the navigable capacity of any

of the waters of the United States. . . .” Section 407 prohibits

discharging or depositing any refuse into navigable waters or

tributaries of navigable waters.

8a

marsh area without a Permit from the Army and con-

tinued to fill after being warned that such activity was

illegal.” I further ruled that “the area filled in by Mr.

Diamond would have been inundated at mean high

water had not the same been filled” and that as a mat-

ter of law the fill area was within the navigable waters

of the United States. Diamond had violated the Rivers

and Harbors Act, this Court held, by filling marshland

without a permit.

Subsequently, a permanent injunction issued pro-

hibiting further fill or construction operations on the

site. | abstained, however, from ruling on the manda-

tory injunction pending outcome of the administrative

process. See United States v. Moretti, Inc., 478 F.2d

413 (5th Cir.).

In United States v. Diamond, 512 F.2d 157 the

Fifth Circuit affirmed this Court’s ruling. Application

for certiorari was denied, 423 U.S. 928.

On August 28, 1975, Diamond filed the instant suit

in this Court under the Administrative Procedure Act

(6 U.S.C. § 701 et seq.). It is denominated as Suit

Two.? In it Diamond sought review of the agency’s ac-

tion, alleging that the denial of the permit was arbi-

trary and capricious and that it exceeded the Corps’

statutory authority. In December, 1975 this Court

consolidated the two suits, pursuant to Rule 42(a).

Almost a year after filing Suit Two, Mr. Diamond filed

a motion for stay and remand for completion of the

2There is also a third suit currently pending, Herman

Diamond v. Dr. Frederick C. Marland et al. CV 477-80. In that

suit, Mr. Diamond revives a claim decided against him in

Diamond v. Marland, 395 F. Supp. 482 (S.D., Ga.).

4a

administrative proceedings then in process. Conclud-

ing that Mr. Diamond’s administrative remedies had

been exhausted, I denied the motion in an Order dated

August 9, 1976.

Undaunted by the adverse decisions of the Corps of

Engineers, this Court and the Fifth Circuit, Diamond

(who proceeds pro se) has filed numerous post-

judgment motions in which he seeks the reopening and

reconsideration of both Suits One and Two. I will con-

sider first the motions pending in Suit One and then

take up the motion in Suit Two.

II

On April 13, 1976, Diamond filed a motion pursuant

to Rule 60(b) for relief from the judgment in Suit One.

Alleging additional grounds for relief, he sought to

amend this motion on June 2, 1976, and on June 28,

1977. In all, Diamond enumerates six bases for set-

ting aside the judgment in Suit One. In his briefs and

letters to this Court, defendant raises still other

grounds which might be construed as additional

grounds for his motion.

The simple truth of the matter is that Mr. Diamond

is trying to relitigate a case decided against him by

this Court in 1974 and affirmed by the Fifth Circuit on

appeal.

® Rule 60(b) provides that motions must be made within a rea-

sonable time or, if under 60(b)(1), (2), or (3), within one year

from judgment. The random approach Mr. Diamond has taken

appears to put him beyond a reasonable time. However, I do not

decide the motions on that basis except where the one year lim-

itation is applicable.

5a

Ill

Rule 60(b) provides for relief from judgments on

several grounds.* Whether to grant relief from judg-

ment under Rule 60(b) is within the sound discretion of

the district court. Fackelman v. Bell, 564 F.2d 734

(5th Cir.); Hand v. United States, 441 F.2d 529 (5th

Cir.).

The Government contends that this Court lacks

jurisdiction over the 60(b) motions because the judg-

ment in question was affirmed on appeal. It cited

Butcher & Sherrerd v. Welsh, 206 F.2d 259 (8rd Cir.)

in support of that position. That view was changed by

the decision of the Supreme Court of the United States

in Standard Oil Co. of California v. United States,

429 U.S. 17. In that case, the Supreme Court held that

a district court does not need appellate permission to

reopen a case after it has been reviewed on appeal and

affirmed. The Court found the reasons supporting the

requirement of appellate leave to be unpersuasive and

stated that “we have confidence in the ability of dis-

trict courts to recognize frivolous Rule 60(b) motions.”

429 U.S. at 19.

4“On motion and upon such terms as are just, the court may

relieve a party or his legal representative from a final judgment,

order, or proceeding for the following reasons: (1) mistake, in-

advertence, suprise, or excusable neglect; (2) newly discovered

evidence .. .; (3) fraud ..., misrepresentation, or other mis-

conduct of an adverse party; (4) the judgment is void; (5) the

judgment has been satisfied . . . ; or (6) any other reason jus-

tifying relief from the operation of the judgment. The motion

shall be made within a reasonable time, and for reasons (1), (2),

and (3) not more than one year after the judgment, order, or

proceeding was entered or taken... .”

6a

I will take up now Diamond’s various motions and

the applicable subsections of Rule 60(b).

IV

In his original post-judgment motion, Diamond ar-

gued that the judgment should be set aside under

60(b)(6) because Government Exhibit 1 is inaccurate

and was not introduced in evidence.® He dlleges that

my Order of April 17, 1974, was substantially based on

this exhibit. He contends that the overlay of aerial

photographs attached to the exhibit was not properly

superimposed and did not correctly indicate his prop-

erty and fill area. In one of the amendments, Diamond

claims that the survey of his property by the Corps

was inaccurate and that reliance thereon constituted

fraudulent misrepresentation and misconduct.®

The motion is ostensibly based on Rule 60(b)(6)

which provides for relief for any other reason justify-

ing same. However, it must be considered as one

under 60(b)(3). Motions to set aside for misrepresenta-

tion or misconduct fall within 60(b)(3). “Where either

Clauses (b)(1), (2), (8), (4), or (5) provide coverage for

the movant’s claim, relief may not be obtained pur-

5The record reflects that the Exhibit was introduced at the

hearing on August 29, 1973. See also “Clerk’s Certificate As to

Exhibits” sent up on appeal. Even if it were not introduced, the

objection should have been made at the time or, at least, within

one year of judgment.

® Although this motion is decided on the technical ground of

Rule 60(b), I impute no fraud or misconduct to the Government

or its witnesses. I do not believe or find that any fraud was

perpetrated upon this Court. See generally England v. Doyle,

281 F.2d 304 (9th Cir.).

7a

suant to Clause (b)(6).” Gulf Coast Building and Sup-

ply Company v. International Brotherhood of Elec-

trical Workers, Local No. 480, 460 F.2d 105 (5th Cir.).

See also Ackermann v. United States, 340 U.S. 193;

Klapprott v. United States, 335 U.S. 601.

As stated, motions under 60(b)(3) must be brought

within one year of the judgment. Since the motion to

set aside was filed more than two years after judg-

ment, it must be dismissed as untimely filed. See

Prickett v. Duke Power Company, 49 F.R.D. 116

(D.S.C.), aff'd 429 F.2d 984 (4th Cir.).

V

In his motion of April 18, 1976, Diamond moved for

relief under 60(b)(4) from a void judgment. A judg-

ment is void under 60(b)(4) “only if the court that ren-

dered it lacked jurisdiction of the subject matter, or of

the parties, or if it acted in a manner inconsistent with

due process of law.” 11 Wright and Miller, Federal

Practice and Procedure: Civil, at 198-200 (footnotes

omitted). Apparently, there is no time limit for pre-

senting such a motion if the court lacks jurisdiction.

Misco Leasing, Inc. v. Vaughn, 450 F.2d 257 (10th

Cir.).

Diamond claims that this Court was without juris-

diction because the United States in 1802 ceded to the

State of Georgia all lands within the boundaries of the

State. He contends that under 48 U.S.C. § 1811 the

cession of lands to Georgia divests the United States of

any jurisdiction over his property. The Submerged

Lands Act provides that title to and ownership of

lands beneath navigable waters within each state is in

8a

the state. 43 U.S.C. § 1311(a).7 Diamond claims that

the prior judgment is void because the Rivers and

Harbors Act, 33 U.S.C. § 408, conflicts with the 1802

cession and that the exercise of federal jurisdiction in

this case is “ex post facto.”

That argument has been made before without suc-

cess. “Congress clearly has the power under the

Commerce Clause to regulate the use of Landholders’

submerged riparian property for conservation pur-

poses and has not given up this power in the Sub-

merged Lands Act.” Zabel v. Tabb, 430 F.2d 199, 206

(5th Cir.), cert. den. 401 U.S. 910.

VI

Mr. Diamond urges four reasons for setting aside

the judgment under 60(b)(6), that is, “any other reason

justifying relief.”

A. First, he says that Oregon ex rel. State Land

Board v. Corvallis Sand & Gravel Co., 429 U.S. 363

“established that Riparian Rights supercede the Fed-

eral Agency Rule that Federal Jurisdiction extends to

the Mean High Water Line, within the boundaries of

the State of Georgia. [Diamond] has Riparian Rights

to low water mark under Georgia statutes.” In Cor-

vallis, the highest Court held that ownership of river-

beds within a state should be determined by state,

rather than federal, law.

7The United States specifically retained the right to control

those lands and waters for navigation, flood control, and power

production. 43 'J.S.C. § 1311(d). Moreover, it retained its “pow-

ers of regulation ... for the constitutional purposes of com-

merce... .” 48 U.S.C. § 1314.

9a

That decision avails Mr. Diamond nought. The issue

here is not the ownership of submerged lands. It is

whether the Corps has jurisdiction to regulate the use

of such land. That the Corps does have such power has

already been established. Zabel v. Tabb, supra.

Richardson Creek has been found to be, and is, navig-

able within the meaning of 33 U.S.C. §§ 403, 407; and

Diamond’s property is below the mean high water

mark. United States v. Diamond, 512 F.2d 157, cert.

den. 423 U.S. 928.

B. Secondly, Mr. Diamond argues that his property

is less than ten acres and as such is exempt from Corps

regulations. 16 U.S.C. § 662(h). It is not apposite.

That section states that “(t]he provisions of sections

661 to 666c of this title shall not be applicable to those

projects for the impoundment of water where the

maximum surface area of such impoundments is less

than ten acres. ...” Mr. Diamond misconstrues the

exception. The Act “requires that any federal agency

granting a permit for license to modify any stream or

body of water shall first consult with the United States

Fish and Wildlife Service, Department of the Interior

and also with the head of the agency exercising ad-

ministration over the wildlife resources of the par-

ticular state....” United States v. Stoeco Homes,

Inc., 498 F.2d 597, 606 (8rd Cir.), cert. den. 420 U.S.

927. See also Zabel v. Tabb, supra, 480 F.2d at 206.

Such consultation is not required if the impoundment

is less than ten acres. The exemption does not restrict

the jurisdiction of the Corps.

C. Diamond’s third basis for setting aside the judg-

ment under Rule 60(b)(6) is that the complaint filed by

10a

the United States was void. Although his argument is

not clear, he alleges two reasons which he contends

voided the complaint.

First, he argues that an affidavit used in support of

the temporary restraining order was void. Dr. Fred-

erick Marland from the Georgia Department of Natu-

ral Resources signed the affidavit that is required in

support of a temporary restraining order. F.R.Civ.P.

65(b). Mr. Diamond contends that Dr. Marland was

not authorized to sign such an affidavit.* How such a

contention would void the complaint in Suit One is be-

yond me.

In his affidavit, Dr. Marland stated that he observed

two truck loads of fill material being dumped on

Diamond’s property; that he saw Diamond push this

material into the marsh with a bulldozer, and that, in

his judgment, such filling would cause irreparable

harm to the marshlands.® To support a temporary re-

straining order, “the evidentiary quality of the af-

fidavit must be sufficient to convince a court that there

is immediate and great danger of irreparable in-

jury... .” 11 Wright & Miller, Federal Practice and

Procedure: Civil at 515. Dr. Marland’s affidavit met

that standard.

®Mr. Diamond has confused what he perceives to be the

power to arrest with the right to submit an affidavit. He points

out that in Howell v. State, 238 Ga. 95, the Georgia Supreme

Court held unconstitutional a statute that made a violation of

the regulations of the Department of Natural Resources a mis-

demeanor. However, Dr. Marland is not thereby prohibited

from submitting affidavits in support of the civil action.

*See in this connection, Diamond v. Marland, 395 F. Supp.

432 (S.D., Ga.).

lla

Secondly, Diamond contends that the complaint was

void because no official designated by 33 U.S.C. § 413

had requested the United States Attorney to initiate

such an action.!° He made this same argument on his

appeal in Suit One. The Fifth Circuit responded that

“the United States Attorney’s duty to prevent viola-

tions of the law justifies his taking action against il-

legal fill operations regardless of who brings the viola-

tion to his attention.” United States v. Diamond,

supra, 512 F.2d at 159.

D. Finally, Diamond seeks to set aside the judg-

ment on the grounds that the United States and the

State of Georgia are guilty of malicious abuse of proc-

ess and of placing him in double jeopardy. This conten-

tion is based on the fact that he was found not guilty in

Chatham County Superior Court on the criminal

charge of illegal fill activity. He asserts that the

United States by initiating the civil action in Suit One

and the State of Georgia by intervening in Suit One

have placed him in double jeopardy and have abused

the judicial process.

Again, Mr. Diamond misconceives the law. He fails

to recognize that liability in a civil case may be based

on a lesser standard of proof than that required for a

criminal conviction. Acquittal of criminal charges

would not preclude the State from seeking civil rem-

edies. See Lewis v. Frick, 233 U.S. 291; United States

v. Burch, 294 F.2d 1 (5th Cir.). Even if Suit One were

10Section 413 provides that “it shall be the duty of United

States Attorneys to vigorously prosecute all offenders ...

whenever requested to do so by the Secretary of the Army or by

any of the officials hereinafter designated. . . .”

12a

- acriminal case, no bar of double jeopardy arising from

his acquittal of State criminal charges could be raised

against the United States. The Constitution does not

prohibit dual prosecutions by dual sovereigns. United

States v. Corbo, 555 F.2d 1279 (5th Cir.). Mr.

Diamond raised this issue in Diamond v. Marland,

395 F. Supp. 432 (S.D., Ga.). It was decided adversely

to him and he cannot now relitigate it.

The other points argued in his briefs and letters to

this Court are equally devoid of merit.

MOTION TO SET ASIDE ORDER

CONSOLIDATING SUITS ONE AND TWO

On June 30, 1977, eighteen months after this Court

ordered Suits One and Two to be consolidated, Mr.

Diamond moved to set aside the consolidation. He ar-

gues that, because of the posture of the two cases, the

consolidation will prevent his receiving a fair and im-

partial trial in Suit Two. His precise position is not at

all clear.

Rule 42(a) provides that the district court may con-

solidate all actions “involving a common question of

law or fact.” In Suits One and Two, the parties are the

same, and the actions arise from the same set of facts,

Diamond’s illegal fill activity. The operative facts have

previously been before this Court. The two cases

overlap because a wrongful denial of the after-the-fact

permit in Suit Two could vitiate the prior judgment of

this Court in Suit One.

11 Both actions are before this Court, not before a jury. I fail

to see how consolidation could prejudice the parties.

13a

“A trial court has broad discretion in determining

whether to consolidate a case pending before it.” Na-

tional Association for the Advancement of Colored

People of Louisiana v. Michot, 480 F.2d 547

(5th Cir.). Further, they possess inherent power to

manage their dockets expeditiously. See Jn re Air

Crash Disaster at Florida Everglades, 549 F.2d 1006

(5th Cir.).

In any event, the ruling by this Court on the mo-

tions in Suit One moots the motion to set aside the

consolidation of the two lawsuits.

ORDER

Diamond’s various motions pending in Civil Action

No. 3092 and CV475-211 are overruled and judgment

will issue accordingly.

This August 2nd, 1978.

/s/ ALEXANDER A. LAWRENCE

Judge, United States District Court

Southern District of Georgia

l4a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Civil Action No. 3092

Civil Action No. 475-221

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

HERMAN DIAMOND, DEFENDANT

HERMAN DIAMOND, PLAINTIFF

Vv.

UNITED STATES OF AMERICA AND UNITED STATES

ARMY CORPS OF ENGINEERS, SAVANNAH DISTRICT,

DEFENDANTS

ORDER AND OPINION IN HERMAN DIAMOND VS.

UNITED STATES OF AMERICA AND UNITED STATES

ARMY CORPS OF ENGINEERS (CV475-221)

I have this day entered an Order denying the pend-

ing motions of Herman Diamond in these consolidated

cases. The material facts were dealt with at some

length. The issues involved in this case concern only

the second suit, Diamond v. United States, CV475-

221.

A short conspectus of that litigation will be helpful.

On June 14, 1973, Mr. Diamond applied for an after-

15a

the-fact permit for filling of a marsh area on

Richardson Creek in Chatham County, Georgia. The

District Engineer denied the application on March 26,

1974. The applicant then filed suit under the Adminis-

trative Procedure Act, 5 U.S.C. § 701 et seg. Essen-

tially, plaintiff alleges that the denial of the after-

the-fact permit was arbitrary and capricious.

An evidentiary hearing was held in this Court on

April 17, 1976. Subsequent hearings have been had.

Both sides have filed briefs.

I

Before addressing the merits, I take up one matter.

On April 18, 1976, Mr. Diamond filed, without leave of

court, an amendment to his complaint. It adds five

new numbered paragraphs and a prayer for relief. The

amendment specifies wherein the District Engineer

erred in denying the requested permit. It alleges that

the Government has unlawfully confiscated plaintiff's

property for which compensatory damages of $100,000

are sought.

The Government has moved to strike paragraph 7 of

the amendment. It asserts

“That by reason of the aforesaid facts and acts

of the defendants, and the premises herein, the

aforesaid property of the plaintiff has been un-

lawfully confiscated by defendants, thereby de-

nying plaintiff the use of said property and caus-

ing plaintiff unnecessary expense, all to the dam-

age of the plaintiff in the amount of One Hundred

Thousand ($100,000.00) Dollars. . . .”

The Government contends that Diamond has not

complied with Rule 15(a). The amendment was not

l6a

filed until nearly five months after the filing of defend-

ant’s answer to the original complaint. As stated, no

leave to amend was sought or obtained. Such permis-

sion “shall be freely given when justice so requires.”

Rule 15(a). See Foman v. Davis, 371 U.S. 178. “But if

a complaint or an answer, as amended, would be sub-

ject to a motion to dismiss under Rule 12(b)(6) or a

motion to strike under Rule 12(f), as the case may be,

it would be an idle move for the court to allow such an

amendment over the objection of the opposing

party. ...” 3 Moore’s Federal Practice, § 15.08[4] at

904.

Upon timely motion, “the court may order stricken

from any pleading any insufficient defense or any re-

dundant, immaterial, impertinent, or scandalous mat-

ter.” Rule 12(f). However, “motions to strike are

viewed with disfavor by the courts.” Great Northern

Paper Company v. Babcock & Wilcox Company, 46

F.R.D. 67, 69 (N.D., Ga.). “Therefore, such motions

will not be granted unless the allegations are so imma-

terial that they can have no possible bearing on the

issues at trial and unless their presence unduly preju-

dices the opposing party... .” United States v.

Southern Motor Carriers Rate Conference, 439 F.

Supp. 29, 39 (N.D., Ga.).

Rule 12(f), according to 5 Wright & Miller, Federal

Prattice and Procedure: Civil at p. 782, “is neither an

authorized nor a proper way to procure the dismissal

of all or a part of a complaint. . . .” The Government’s

motion to strike is in the nature of one for dismissal or

17a

partial summary judgment. “[WJjhen there is no

showing of prejudicial harm to the moving party, the

courts generally are not willing to determine disputed

and substantial questions of law upon a motion to

strike. Under such circumstances, the court may prop-

erly, and we think should, defer action on the motion

and leave the sufficiency of the allegations for deter-

mination on the merits.” Augustus v. Board of Public

Instruction of Escambia County, Florida, 306 F.2d

862, 868 (5th Cir.).

The Government’s motion to strike the amendment

is denied and same is permitted to be filed.

IT

Although the Secretary of the Army has wide dis-

cretion in granting or denying after-the-fact permits,

his decision may be reviewed in the district court. 5

U.S.C. § 706. See Zabel v. Tabb, 430 F.2d 199 (5th

Cir.), cert. den. 401 U.S. 910. However, the court

“may not substitute its judgment for that of the Secre-

tary.” Di Vosta Rentals, Inc. v. Lee, 488 F.2d 674,

678 (5th Cir.), cert. den. 416 U.S. 984.

In his original complaint, Mr. Diamond complained

of the Secretary’s decision on four grounds. He

tracked the language of 5 U.S.C. § 706(2)(A), (B), (C),

and (D).! The standard of review in such cases is

whether “there was a rational basis for the denial of

1To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, inter-

pret constitutional and statutory provisions, and determine the

18a

the permit.” Joseph G. Moretti, Inc., v. Hoffman, 526

F.2d 1311 (5th Cir.).?

At the hearing on April 17, 1976, Colonel Edwin C.

Keiser, then the District Engineer of the Corps of En-

gineers at Savannah, explained his reasons for denying

the permit. In reaching his decision, Colonel Keiser

relied on 33 C.F.R. § 209.120. (Gov’t. Ex. A). That

regulation provides that “The benefit which reasonably

may be expected to accrue from the proposal must be

balanced against its reasonably foreseeable detri-

ments. ... All factors which may be relevant to the

proposal must be considered .... No permit will be

granted unless its issuance is found to be in the public

interest.”

Colonel Keiser gave the following explanation for

denying the after-the-fact permit sought by Diamond:

meaning or applicability of the terms of an agency action. The

reviewing court shall—. . .

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege,

or immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by law.

2The substantial evidence test under 5 U.S.C. § 706(2)(E) is

not applicable. See Camp v. Pitts, 411 U.S. 138.

*These proposed regulations were effective on May 4, 1973.

Mr. Diamond’s application was filed on June 14, 1973 while the

proposed regulations were still in effect. The applicable provi-

sions are the same as those currently in effect. See 33 C.F.R.

§ 209.120(f).

19a

“Well, basically, in evaluating the public inter-

est aspect it did not appear that this would be in

the public interest, that it was not the best alter-

native use of the land. It disrupted the food

chains, had an adverse effect on fisheries, as well

as on wildlife in the area, had water quality impli-

cations, a change in land use from marsh land the

productive use in that regard—as I say, I consid-

ered alternatives, and there seemed to be other

feasible alternatives that would not destroy the

marsh to have access to the water for boating. I

considered the views of the other agencies and

particularly in areas in which they have cogni-

zance in reaching my decision as well, and their

obligation to the fact that this fill had been placed

below mean high water without prior authoriza-

tion.”

Tr. pp. 9-10.

The District Engineer relied on responses to a public

notice which he had issued on October 2, 1978. (Gov’t.

Ex. 2). Both the Department of the Interior and the

Environmental Protection Agency recommended de-

nial of the permit. The responding State agencies felt

that application should be first made to them. The

Ogeechee Audubon Society objected to the fill. Colonel

Keiser relied on a 1932 Corps report to determine

navigability of the area involved. (Tr. p. 15). He also

considered a topographic map prepared from a

supplementary survey. (Tr. p. 18).4 He verified the

“Much ado has been made concerning the fact that the overlay

introduced at the hearing does not precisely correspond to the

topographic survey. Colonel Keiser explained that when he

made his determination he used large scale photographs rather

than the reductions that were introduced. (Tr. p. 23).

20a

information by a site survey. (Tr. p. 24). The District

Engineer concluded that the fill would result in minor

effects on navigation and that it had “decreased pro-

ductivity in deeper water areas of the estuarine. The

fill work has also eliminated habitat nesting, feeding

and wading areas for a number of birds and animals.”

(Gov’t Ex. 2, pp. 4-5). Colonel Keiser found “on bal-

ance, that the public interest is best served by denial

of the permit application and removal of the fill to the

historic mean high water line.” (Gov’t. Ex. 2, p. 6).

This Court finds that there was a rational basis for

his conclusions and ruling.

“It was consistent with the applicable regula-

tions, 38 C.F.R. § 209.120, and with the three

major pieces of legislation which set policy in this

area, the National Environmental Policy Act of

1969, 42 U.S.C. § 4831-4347, the Fish and Wildlife

Coordination Act of 1934, 16 U.S.C. § 771-666c,

and the Rivers and Harbors Appropriation Act of

1899. The Corps properly considered environmen-

tal factors in making its decision. Zabel v. Tabb,

supra. It properly consulted other agencies in

making its decision. United States v. Moretti, 5th

Cir. 1978, 478 F.2d 418. See also Bankers Life and

Casualty Company v. Village of North Palm

Beach, 469 F.2d 994 (5 Cir. 1972).”

DiVosta Rentals, Inc. v. Lee, supra 488 F.2d at

681.

III

A few words concerning Diamond’s amendments are

proper at this point.

First, he contends that the District Engineer was

not authorized to deny the permit. This is ill founded.

2la

Section 209.120(i) authorizes such action by the Dis-

trict Engineer. Under 33 C.F.R. § 209.120(p)(1), the

district engineer may deny a permit “when a State has

objected to a required certification of compliance with

its coastal zone management program.” |

Secondly, Diamond claims that a permit is not re-

quired for fill prior to December 18, 1968. Colonel

Keiser testified that the fill placed prior to that time

would not have to be removed. (Tr. pp. 13-14).

Thirdly, Mr. Diamond contends that there has been

an unlawful taking of his property and that he has sus-

tained damage as a result. The Administrative Proce-

dure Act does not constitute a waiver of sovereign

immunity as to suits for money damages. Warner v.

Cox, 487 F.2d 1801 (5th Cir.). The Act itself states

that it is restricted to cases “seeking relief other than

money damages.” 5 U.S.C. § 702.

ORDER

The decision of defendants denying plaintiff's appli-

cation for an after-the-fact permit is affirmed. Judg-

ment in CV475-221 will be entered in favor of the de-

fendants.

This August 2nd, 1978.

/S/ ALEXANDER A, LAWRENCE

Judge, United States District Court

Southern District of Georgia

22a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Civil Action No. 479-159

HERMAN DIAMOND, PLAINTIFF

Vv.

Honorable, Judge,

ALEXANDER A. LAWRENCE, DEFENDANT.

ORDER DENYING PLAINTIFF'S MOTION TO RECUSE

On May 7, 1979, Mr. Diamond filed a “Complaint and

Injunction,” styled Herman Diamond vs. Honorable

Judge, Alexander A. Lawrence, CV479-159. He seeks

to disqualify me from presiding in the case of Diamond

vs. Marland, CV477-80 on the basis of my alleged per-

sonal bias against him.

A hearing in the latter case is scheduled for May 10,

1979, on the motions for summary judgment by the

defendants. Notice was mailed to the parties on April

26, 1979. Since that time, Mr. Diamond’s counsel has

withdrawn from the case.

The action is instituted pursuant to 42 U.S.C.

§§ 1983, 1985(3) alleging violation of plaintiffs civil

rights. Jurisdiction is predicated on 28 U.S.C.

§ 13843(4). Mr. Diamond asks that an injunction issue

and that the May 10th hearing be vacated.

23a

The complaint in 479-159 alleges that, in two prior

actions involving Mr. Diamond, I have ruled contrary

to the Georgia Cession of 1802 and have unlawfully

confiscated his property.! An injunction is not the

proper means to seek recusal of a judge. Under the

statute, the proper method is by filing an affidavit of

bias. 28 U.S.C. § 144. Herman Diamond’s complaint

will be deemed to be a renewal of the motion for dis-

qualification previously filed in 477-80.?

Attached to Diamond’s complaint in 479-159 is a

copy of the “Verified Application to Disqualify Judge”

which Mr. Diamond filed in 477-80. The former motion

for recusal was based only on 28 U.S.C. § 144. How-

ever, it will likewise be considered as filed pursuant to

28 U.S.C. § 455.4

Mr. Diamond apparently relies on the language in

§ 144 that, upon the filing of an affidavit of prejudice

yes ap ieee (

1See United States v. Diamond, 512 F.2d 157 (5th Cir.), cert.

den. 423 U.S. 928; Diamond v. Marland, 395 F. Supp. 432

(S.D., Ga.).

2As I recall, I indicated orally that I was denying the motion

to recuse myself in 477-80 at a hearing held in CV3092 and

CV477-221. In a letter to this Court dated September 27, 1977,

Ralph Snow, Diamond’s former counsel, indicated that Diamond

no longer wished to appeal denial of the application for disqual-

ification. He added, “Mr. Diamond also asked me to express his

appreciation to the Court staff and to your Honor personally for

the cooperative attitude expressed to him recently .. .”

3“Whenever a party to any proceeding in a district court

makes and files a timely and sufficient affidavit that the judge

before whom the matter is pending has a personal bias or preju-

dice either against him or in favor of any adverse party, such

judge shall proceed no further therein, but another judge shall

be assigned to hear such proceeding.”

4“(a) Any justice, judge, magistrate, or referee in bankruptcy

24a

against a judge, “such judge shall proceed no further

therein ...” However, “(t]he mere filing of an af-

fidavit of bias pursuant to 28 U.S.C. § 144 does not

require a trial judge to disqualify himself from a par-

ticular case.” United States v. Dansker, 537 F.2d 40,

53 (8rd Cir.), cert. den. 429 U.S. 1038. “It is only after

the judge against whom it is directed examines the af-

fidavit and finds it to be timely and sufficient that his

disqualification is made mandatory.” United States v.

Partin, 312 F. Supp. 1355, 13859 (E.D., La.).

“Once the motion is filed under § 144, the judge

must pass on the legal sufficiency of the affidavit, but

may not pass on the truth of the matters alleged.”

Davis v. Board of School Commissioners of Mobile

County, 517 F.2d 1044, 1051 (5th Cir.), cert. den. 425

U.S. 944. “The legal sufficiency of the affidavit is de-

termined by ascertaining whether it contains facts

which would ‘convince a reasonable man that a bias

exists.’ It is clear, however, that the facts alleged in

the affidavit must show that the judge’s bias is per-

sonal, as opposed to judicial, in nature.” United States

v. Archbold-Newman, 554 F.2d 665, 682 (5th Cir.),

cert. den. 434 U.S. 1000.

The first seven “facts” in Diamond’s application and

the only ground alleged in 479-159 are that I have

presided in prior cases involving him and related mat-

of the United States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circum-

stances:

(1) Where he has a personal bias or prejudice concerning

a party, or personal knowledge of disputed evidentiary

facts concerning the proceeding; . . .”

25a

ters and have ruled against him. “The § 455 determi-

nation, like the § 144 determination, should rest upon

extrajudicial rather than judicial conduct. [Cit.] Ap-

pellant’s grievance against members of this court con-

cerns only judicial conduct: he complains of prior rul-

ings by the court. Such allegations are insufficient

grounds for disqualification.” Hepperle v. Johnston,

590 F.2d 609, 614 (5th Cir.). See Duplan Corporation

v. Deering Milliken, Inc., 400 F. Supp. 497 (D.S.C.).

The other claim of personal bias is unsupported and

is insufficient in law. Parrish v. Board of Commis-

sioners of the Alabama State Bar, 524 F.2d 98, 101

(5th Cir.), cert. den. 425 U.S. 944.

The affidavit in 477-80 and the complaint filed in

479-159, construed together or separately, are legally

insufficient to require disqualification. The motion for

recusal is denied.

The foregoing is deemed a sufficient answer to the

complaint filed in CV479-159. The Clerk will file a

copy of this Order in CV479-159 and in CV477-80.

The motions for summary judgment in Diamond vs.

Marland will be heard as scheduled at 9:00 a.m. on

May 10, 1979, in the third floor courtroom of the Fed-

eral Building, Savannah, Georgia.

This May 9th, 1979.

/s/ ALEXANDER A. LAWRENCE

Senior Judge, United States District Court

Southern District of Georgia

26a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

HERMAN DIAMOND, PLAINTIFF

Vv.

DR. FREDERICK C. MARLAND, Department of Natural

Resources, State of Georgia; COLONEL EDWIN C.

KEISER, District Engineer; COLONEL FRANK WAL-

TER, District Engineer; STEVEN OSVALD, Permit Sec-

tion, Engineers; WILLIAM L. YOUNG, Engineer; ED- .

WARD MYATT, Engineer; GLENN F’. MACAULEY, of the

United States Corps of Engineers, Savannah, Georgia,

District, DEFENDANTS

ORDER ON MOTIONS OF THE DEFENDANTS

FOR SUMMARY JUDGMENT

I,

This is a civil rights action brought by Herman

Diamond under 42 U.S.C. §§ 1983 and 1985(3)! and for

142 U.S.C. § 1983. “Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for

redress.”

42 U.S.C. § 1985 (3). “If two or more persons in any State or

Territory conspire ... for the purpose of depriving, either di-

27a

alleged violation of his rights under the Fifth, Four-

teenth and other Amendments to the federal Constitu-

tion. Before this Court are motions for summary

judgments by Dr. Marland, Director of Marshland

Protection of the Georgia Department of Natural Re-

sources, and the Federal Defendants, Colonel Edwin

Keiser and Colonel Frank Walter, District Engineers

of the Army Corps of Engineers; Civil Engineers Wil-

liam Young and Glenn Macauley, and Steven Osvald,

Director of Permits; and Edward Myatt, engineer.”

The complaint alleges that Marland unlawfully ver-

ified complaints against Diamond in prior actions by

the State of Georgia and by the United States under

their respective marshland protection statutes and

Regulations. It is claimed that he conspired* with

other defendants to deprive plaintiff of his civil rights

in the suit by the United States for injunctive relief

against filling marshland and also deprivation of his

rights under the Federal Constitution.

rectly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities

under the laws ... in any case of conspiracy set forth in this

section, if one or more persons engaged therein do, or cause to

be done, any act in furtherance of the object of such conspiracy,

whereby another is injured in his person or property ... the

party so injured or deprived may have an action for the recov-

ery of damages, occasioned by such injury or deprivation,

against any one or more of the conspirators.”

2John Glenn Herndon, also of the Corps of Engineers, was

originally named as one of the defendants. He was striken as a

party by order of this Court dated May 16, 1979.

3A civil conspiracy is not actionable per se. The gist of the

cause of action is not the conspiracy or combination, it is the tort

perpretated upon the plaintiff with resultant damage. Johnson

v. Ellington, 196 Ga. 846; Cook v. Robinson, 216 Ga. 328.

28a

In the suit now before this Court, it is alleged that

Dr. Marland caused the unlawful arrest of plaintiff

under color of the Georgia Coastal Marshlands Protec-

tion Act of 1970. It is claimed that Engineers Keiser

and Walter presented false and misleading affidavits in

obtaining the injunction under the 1974 deicsion of this

Court. Civil Engineers Young and Macauley are al-

leged to have knowingly given false testimony in that

litigation. It is further claimed that Young testified

falsely as to tide levels on plaintiffs property and that

Macauley wrongly interpreted aerial photos of the

Diamond property introduced at the trial by the Corps

of Engineers.

The Government contends in its motion for summary

judgment that Diamond is seeking to reargue and re-

litigate matters and issues already decided by this

Court against him and affirmed by the Fifth Circuit

Court of Appeals. It is argued that the principles of

res judicata and collateral estoppel apply.

Counsel for Marland makes a like contention to the

Government’s in connection with his motion for sum-

mary judgment.

Il.

Antecedents of Present Litigation

Diamond is a chronic litigator. The antecedents of

the present litigation include the following actions

previously brought against or by him in connection

with this controversy.

1. State v. Diamond in the State Court of Chatham

County in 1974 for filling marshland without a State

permit. Diamond was acquitted after a jury trial.

29a

2. United States v. Diamond (S.D., Ga., Civil Ac-

tion No. 3092, 1974). Suit for injucntive relief by Gov-

ernmen: for unauthorized filling of marshland contrary

to federal law and regulations. Decision rendered

against Diamond. The grant of injunctive relief by this

Court was affirmed on appeal. See United States v.

Diamond, 512 F.2d 157 (1975), cert. den. 423 U.S.

928.

3. Diamond v. Marland, et. al., Civil Rights action

brought in 1974 by Diamond in this Court against Dr.

Marland, two Chatham County police officers, two

State Rangers and the Commissioners of Chatham

County. That action was based on his arrest without a

warrant and the resulting prosecution in the State

Court of Chatham County. The decisions by this Court

against Diamond growing out of the warrantless arrest

are reported in Diamond v. Coleman, et. al., 395 F.

Supp. 429 (1975). No appeal was taken from this rul-

ing.

4. In Diamond v. United States (S8.D., Ga., CV

475-221) plaintiff sued for damages as a result of the

denial by the Corps of Engineers of Diamond’s request

for an after-the-fact permit for filling marshland. The

suit was consolidated with that in United States v.

Diamond (CA 3092) and, following an evidentiary

hearing, was decided against him on August 2, 1978.

The denial of an after-the-fact permit was appealed to

the Court of Appeals and is currently pending there.‘

4 Also pending before the Court of Appeals is an appeal frora

an order dated August 2, 1978, denying Diamond’s motion under

F.R. Civ. P. Rule 60(b) for relief from the injunction obtained

by the Government in United States v. Diamond in 1974.

30a

5. Motion to recuse on ground of prior unfavorable

rulings. See Diamond v. Judge Lawrence (CV 479-

159, 5/9/79). Dismissed.

‘

Il.

Arguments were heard on May 10, 1979, from 9:00

A.M. to 11:30 A.M. Diamond argues his own case for

an hour and a half. Counsel for the Federal Defendants

contended that the issues raised in this suit were ad-

judicated in earlier litigation between the parties. In

its motion for summary judgment the attorneys for

Dr. Marland argue that he was a defendant in the ear-

lier case of Diamond v. Marland et. al. (CV 474-40)

in which summary judgment was granted to the de-

fendants. The present action, his counsel insists, in-

volves the same issues of law and fact previously pre-

sented.

Counsel for the Federal Defendants argue that

United States v. Herman Diamond (No. 3092) decided

the present action adversely to him. (Federal Defend-

ants’ brief at 4-5). It is further contended that their

actions are clothed either with absolute or qualified

governmental immunity. See Butz v. Economou, 438

U.S. 478.

What Diamond is trying to do is relitigate issues

previously determined against him. His argument at

the hearing on May 10th last was reported but was not

transcribed. My impression is that he raised anew all

issues decided against him in previous cases. The re-

porter replayed the tape and made some notes. Along

with much irrelevant argument, Diamond contended

that defendants conspired to deprive him of the use of

3la

his property which was effectuated by officials of the

Corps of Engineers furnishing false and misleading af-

fidavits and giving false testimony at the trial of the

1974 case. Plaintiff requested that he be allowed to

plead this to a jury.

It is clear that Diamond is riding the same old nag .

with a different saddle.

IV.

As the present complaint is drawn, 28 U.S.C.

§§ 1983 and 1985(8) is extended to all of the defend-

ants. Those sections provide a remedy in the federal

courts only in the case of State action and not against

officers and agents of the federal government acting

under color of federal law. See Bethea v. Reid, 445

F.2d 1163 (8rd Cir.), cert. den. 404 U.S. 1061; Robin-

son v. Wichita Falls & North Texas Community Ac-

tion Corporation, 507 F.2d 245 (5th Cir.). The remedy

for conspiracy provided in 1985(3) embraces only State

action and does so only where there is “some racial, or

perhaps otherwise class-based, invidiously dis-

criminatory animus behind the conspirators’ action.”

Griffin, et. al. v. Breckenridge, et. al., 403 U.S. 88,

102. That element does not appear here.

The only claim of Diamond remaining is his contea-

tion that the defendants violated his rights under the

federal Constitution. In Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics,

403 U.S. 383, the Supreme Court held that a district

court’s jurisdiction under 28 U.S.C. § 1331 extended

to civil damage actions alleging a violation of the

Fourth Amendment. More recently, the Supreme

32a

Court has held that that same jurisdictional basis

applied to civil damage actions alleging violation of

equal protection under the Fifth Amendment. Davis

v. Passman, ___ U.S. __ (47 L.W. 4643). Under

those decisions, this Court has jurisdiction over

Diamond’s claims pursuant to § 1331.5

Except in the broadest sense, one cannot find in the

record that the Corps of Engineers and its officials

acted contrary to lawful authority or in derogation of

the federal Constitution.* However, this case is before

me on motion for summary judgment and I do not base

my decision on that point in the light (or better, the

crepuscule) of Bivens and Passman. As to both Mar-

land and the Federal Defendants, I find firmer ground

in relying on the doctrine of res judicata and collat-

eral estoppel.

V.

Counsel for all the defendants contend that the is-

sues raised by Diamond’s present complaint are barred

5 The case of Butz v. Economou, supra, involved a suit

against the Secretary of Agriculture, the Chief Hearing Exam-

iner and other officers of the Department. The Government con-

tended that the defendants possessed absolute immunity from a

suit for damages. However, the Supreme Court in a 5 to 4 deci-

sion held that the defendants possessed a qualified immunity,

that is, in the case of actions taken in good faith, rather than

absolute immunity.

6 The most that can be said is Diamond’s insistence that in the

trial before this Court in 1974 officials of the Corps of Engineers

lied. In libel and slander cases relevant affidavits and testimony

of witnesses at a trial are absolutely privileged under Georgia

law and federal common law. See Ga. Code Ann. §105-709; De-

nnis v. Adcock, 188 Ga. App. 425; Fedderwitz v. Lamb, 195 Ga.

691; Expedition Unlimited Aquatic Enterprises, Inc. v.

33a

by the principles of collateral estoppel. Under that

doctrine, the relitigating of issues of fact decided in

earlier cases involving the same parties is not_per-

mitted. The purpose is to prevent the needless repeti-

tion of litigation between parties when they have had a

fair opportunity to press their claims. A party to prior

litigation is collaterally estopped from raising any

claims or defenses that could have been raised therein.

Aerojet-General Corporation v. Askew, 511 F.2d 710

(5th Cir.), cert. den. 423 U.S. 908. “While res judicata

bars relitigation of the same cause of action, collateral

estoppel bars relitigation of the same facts or issues

that were necessarily determined in the prior pro-

ceeding.” Carr v. United States, 507 F.2d 191, n. 5

(5th Cir.), cert. den. 422 U.S. 1048. See also United

States ex rel. Harshian v. County Court of Knox

County, 122 U.S. 306, 318.

Diamond’s claim that Dr. Marland unlawfully pro-

cured his arrest wag raised and previously decided. In

Diamond v. Marla, et. al., 395 F. Supp. 432, plain-

tiff brought a civil rights action against him and others

alleging that ——- caused the four defendant law

enforcement officers#to unlawfully arrest and detain

plaintiff.” Diamond also claimed that his actions vio-

lated his Constitutional rights under the Fourth, Fifth,

and Fourteenth Amendments. This Court granted

Marland’s motion for summary judgment on the

ground that there was probable cause for the arrest.

Plaintiff claims in the action now before me that Dr.

Marland conspired with the federal defendants to deny

Smithosonian Institution, et. al. 566 F.2d 289 (C.A.D.C.);

Brown v. Collins, 402 F.2d at 212-213 (C.A.D.C.).

34a

him due process in the trial in 1974 in the case of

United States v. Diamond, CA No. 3092. Presumably

Mr. Diamond is of the opinion that Dr. Marland per-

jured himself in testifying in that case. In any event, it

is clear that at the evidentiary hearing therein he

could have sought to establish such a claim. Similarly,

the allegation that the Federal Defendants conspired

to deprive him of his rights by perjuring themselves

during the trial of United States v. Diamond (CA No.

3092) raises the issue of the conclusiveness of the

findings based on their testimony. Full opportunity

existed for plaintiff to explore that possibility at the

trial of the action for injunctive relief.

The only difference between the present action and

what was decided adversely to Diamond in the past is

the claim by him that there was a conspiracy by all of

the defendants herein to perjure themselves by giving

false testimony as witnesses in the prior suits in this

Court. The mere branding thereof as a “conspiracy”

does not change the substance of things. The tes-

timony of the defendants, whether right or wrong, was

the basis of the adverse decisions. It is a matter of

law, conclusive and preclusive of relitigation on the

theory of a conspiracy. Nor does the fact that the Fed-

eral Defendants here were not actual parties to United

States v. Diamond, supra, (CA No. 3092) affect at all

the conclusiveness of the findings against Diamond

based on their testimony. “Under the federal law of

res judicata, a person may be bound by a judgment

even though not a party if one of the parties to the suit

is so closely alligned with his interests as to be his vir-

tual representative.” Aerojet-General Corporation v.

Askew, supra, at 719.

35a

Diamond had a full and fair opportunity at the

hearing on the injunction to raise the issue of the wit-

nesses of the Corps of Engineers giving false tes-

timony. As stated above, collateral estoppel applies

not only to defenses that were expressly raised but to

those that could have been raised in a former action.

See Aerojet-General Corporation v. Askew, supra.

That aside, the determination of the question of falsity

of testimony is implicit in the findings of this Court

that the Government witnesses in the prior hearing

were not lying, but in fact were telling the truth.

Wherein is there any difference, save in terminology,

in Diamond arguing then that the witnesses gave false

testimony and in now claiming that they agreed among

themselves to do so? For the foregoing reasons de-

fendants’ motions for summary judgment must be

granted and the conspiracy action dismissed. Judg-

ment to that effect will be entered.

This July 20th, 1979.

/§; ALEXANDER A. LAWRENCE phalis

SENIOR JUDGE, UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

t U.S. GOVERNMENT PRINTING OFFICE: 1980 3286078 76