Appendix — Davis v. United States

88-124) [ETT D

NO. DEC @ 18S

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IN THE an

Supreme Court of the United States

October Term 1983

Roy E. Davis, Individually and

Trading as Roy E. Davis, Seafood,

Petitioner

V.

UNITED STATES OF AMERICA and its

Agency the United States Air Force

and

THE CITY OF HAMPTON, a political

subdivision of the Commonwealth

of Virginia,

Respondents

and

HAMPTON ROADS SANITATION DISTRICT,

Third-Party Defendant.

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

James E. Bradberry

MOORE, MOORE AND BRADBERRY

13185. Warwick Boulevard

Newport News, Virginia 13602-0100

(804) 877-0255

LLL SL LLL LTE IO LILES LIS LOGE ALLTEL IML LL LIX ELE LEE ELLE AION EE IE

APPELLATE PRINTING SERVICES. INC. HERITAGE BLOG . RICHMOND. VA (804) 643-7789

TABLE OF CONTENTS

Page

Complaint, Davis v. U.S., et al.... 2a

Answer, Davis v. U.S., et al ....-- Iléa

BMOCION CO AmBMGcccccrvcccccesecccvscee Baa

Motion of United States to

Dismiss eeeeeneteeeneteeeeeneeeeeeeee 26a

Response of Plaintiff to

Motion to DismisS «---.-e-esseere- 28a

Memorandum Order, Davis, dis-

missing action in District

Court eeeeeeneeeeeeeeeeeeeeeeeeee 3la

Opinion, Davis Fourth Circuit

Court of Appeals eeeeeeeee ee eeee 38a

28 U.S.C. 1331 (a) coccecccccccccece $58

28 U.S.C. 1346 (b) eecccccccccsccese 468

28 U.S.C. 2674 eccccccvcccccccccsece 478

28 U.S.C. 2680 coccsccccccccesesese 48a

33 U.S.C. 1365 ccccccccccccccccccee Sle

Title 21, Sec. 218, Code of

Va.;1950, as amended «---+-+++.+++ 56a

Title 21, Sec. 223, Code of

¥ Va.; 1950, as amended ----.--.-. 58a |

‘ Title 62.1, Sec. 44.3(6), Code

E of Va.? 1950, as amended eeeeeee 59a 3

4 :

Table of Contents continued

P Page

Title 62.1, Sec. 44.5, Code

of Va.; 1950, as amended ....--- 60a

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NEWPORT NEWS DIVISION

ROY E. DAVIS, Individually and

Trading as ROY E. DAVIS SEAFOOD,

Plaintiff,

Vv.

UNITED STATES OF AMERICA and

its Agency the UNITED STATES

AIR FORCE

SERVE: Justin W. Williams

United States Attorney

for the EASTERN DISTRICT

OF VIRGINIA

United States Attorney's Office

Post Office Building

Norfolk, Virginia

and

THE CITY OF HAMPTON, a political

subdivision of the Commonwealth

of Virginia

SERVE: 0O. Wendell White

City Manager

City Hall

Hampton, Virginia,

Defendants.

COMPLAINT

1. This action arises under the

Federal Tort Claims Act, 28 USC § 1346

ii AS

cael So" A a:

Reta, Ree cS Ae

3a

(b), and 28 USC 8 2671 et seq.; the

Federal Water Pollution Control Act, 33

usc 8 1365 (e); and pendent jurisdiction

over claims arising under 21-287, 62.1-

44.3(6) and 62.1-44.5, Code of Virginia,

1950, as amended.

2. The Plaintiff resides in the

above-captioned judicial district, and

all acts and/or omissions herein com-

plained of have occurred in the above-

captioned judicial district.

COUNT ONE

CLAIM AGAINST THE FEDERAL SOVEREIGN

3. At all times herein mentioned,

the Defendant United States operated a

sewage collection system and pumping

facilities at Langley Air Force Base in

Hampton, Virginia.

4. Your Plaintiff operates a sea-

food business in Back River, a tributory

of the Chesapeake Bay, and the said

Langley Air Force Base fronts on said

‘aa

o

;

:

33

ws

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o

4a

river.

5. Plaintiff is in the business of

purchasing polluted clams pursuant to

Commonwealth of Virginia supervision and

transplanting the clams from polluted

water to Back River where the clams are

cleaned and resold to the public. The

required cleansing period is fifteen (15)

days.

6. Plaintiff has leased shellfish

ground from the Commonwealth of Virginia

and uses the river bottom of Back River

for transplanting the clams for cleans-

ing. Plaintiff has been operating the

business for at least seven (7) years.

7. Back River has been closed by the

State Health Department to the harvesting

of shellfish due to the discharge of un-

treated sewage into Back River. Defen-

dant United States did, on at least nine

(9) occasions between February 25, 1979

5a

and September 6, 1979, dump 17,819,000

gallons of raw untreated sewage into the

Back River.

8. That the discharge of sewage

comes from pumping station number 1370

located on Langley Air Force Base and

operated by defendant United States.

9. That such discharge caused the

Back River to be closed, for the cleans-

ing and harvesting of clams, thereby

causing Plaintiff to have to close his

business, as a result of which Plaintiff

has been damaged.

10. That Langley Air Force Base is a

military base and as such is subject to

the requirements of the Federal Water

Pollution Control Act (hereinafter FWPCA),

as amended, 33 USC 8 1251-1376; that in

an effort to stop such discharge of sew-

age, Plaintiff filed suit in this Dis-

trict under the caption Roy E. Davis t/a

pe

BP

E

3

Roy E. Davis Seafood v. United States

June 22, 1979, the Environmental Protec-

tion Agency, pursuant to its statutory

authority under FWPCS, found that Lang-

ley Air Force Base has violated FWPCA

and ordered compliance with FWPCA.

ll. That Defendant United States

owes a duty to the Plaintiff not to

injure him by the wrongful aiethases of

sewage into a navigable river in viola-

tion of the FWPCA; and that as a direct

and proximate result of the wrongful

conduct of Defendant United States, your

Plaintiff has been forced to close his

business.

12. That as a direct result of the

closing of the Back River, resulting

from the discharge of raw sewage by De-

fendant United States, your Plaintiff

was forced to purchase clams from other

;

’ 3

ye

sources at uw cost in excess of his nor-

mal cost; that Plaintiff was forced to

borrow money he would not have had to

borrow except for the disruption of his

business due to the closure of Back Ri-

ver; that Plaintiff suffered loss of

sales due to the closure of the river;

that Plaintiff's business was severely

Gisrupted due to the closure of the

river; that Plaintiff lost customers due

to the closure of the river; that Plain-

tiff lost profits due to the closure of

the river; that Plaintiff will continue

to suffer damages each time the Back

River is closed to the harvesting of

shellfish, if Defendant United States'

wrongful conduct persists, and that the

Defendent United States was duly noti-

fied by claim of September 13, 1979.

13. That on September 13, 1979,

Plaintiff submitted his claim for dama-

ges to Defendant United States, but on

May 6, 1980, the claim was rejected by

Defendant United States.

COUNT TWO

CLAIM AGAINST THE MUNICIPAL SOVEREIGN

14. The allegation of Paragraphs 4,

5, and 6 are incorporated herein, by

reference, as if fully set out.

15. At all times mentioned herein,

Defendant City of Hampton (hereinafter

Hampton) operated a sewerage collection

‘system and pumping facilities.

16. That the Back River, in which

Plaintiff conducts his clam cleansing

and harvesting business, has been closed

by the Virginia State Health Department

to the harvesting of shellfish because

of the frequent discharge of raw sewer-

age into the waters thereof; that Defen-

dant Hampton has, on at lease twenty-

eight (28) occasions, between January l,

1979 and July 31, 1980 discharged in ex-

9a

cess of 400,000 gallons of raw sewerage

into the Back River.

- 17. =‘That such discharge caused the

Back River to be closed, for the cleans-

ing and harvesting of clams, thereby

causing Plaintiff to have to close his

business, as a result of which Plaintiff

has been damaged.

18. That Defendant Hampton, a poli-

tical subdivision of the Commonwealth of

Virginia, is subject to the requirements

of the Federal Water Pollution Control

Act, 33 USC S 1251 et seq. and 62.1-44.5,

) Code of Virginia, as amended, prohibit-

ing the discharge of pollutants into

navigable waters such as the Back River.

19. That Defendant Hampton owes a 7

duty to the Plaintiff not to injure him .

by the wrongful discharge of sewage into cG

a navigable waterway in violation of the

Pederal Water Pollution Control Act and

oh pe peo eee

tee ee

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10a

the Code of Virginia; that as a direct

and proximate result of the wrongful con-

duct of Defendant Hampton, your Plaintiff

has been forced to close his business on

numerous occasions and has suffered ser-

ious financial loss.

20. That as a direct result of the

closing of the Back River resulting from

the discharge of raw sewage by Defendant

your Plaintiff has been forced to pur-

chase clams from other sources at a cost

in excess of his normal cost; that Plain-

tiff has been forced to borrow money he

would not have had to borrow except for

the disruption of his business due to the

closure of Back River; that Plaintiff

suffered loss of sales due to the closure

of the river; that Plaintiff's business

was severely disrupted, business and

customers lost, expenses increased, and

Plaintiff will continue to suffer addi-

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a iMaiea es VO Thee

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4! ) ey t 4

Ae sis a SS Fn | Ss as ce ie Ae

lla

tional damages every time that Back River

is closed to the harvest of shellfish

due to the wrongful conduct of the De-

fendant.

21. That notice of the injury caused

Plaintiff the actions of Defendant Hamp-

ton was, pursuant to 8.01-222, Code of

Virginia, sent, by certified mail, to

the Hampton City Manager on October 22,

1980.

DAMAGES

22. That as a result of the wrong-

ful and unlawful conduct of the defend-

ants, jointly and severally, in viola-

tion of federal and state statutes, your

Plaintiff has been damaged in the sum

of THREE HUNDRED TWENTY-ONE THOUSAND

EIGHT HUNDRED FIFTY-TWO and 00/100ths

DOLLARS ($321,852.00), for which he seeks

recovery herein.

PRAYER

12a

23. As a result of the foregoing,

your Plaintiff respectfully prays for

the following relief:

a) Recovery from the defend-

ants, jointly and severally, in the sum

of THREE HUNDRED TWENTY-ONE THOUSAND

EIGHT HUNDRED FIFTY-TWO and 00/100ths

DOLLARS ($321,852.00), as compensation

for damages caused by defendant's will-

ful and wrongful conduct;

b) Recovery of attorney's fees,

expert witness fees and Court costs, as

provided for in 33 USC S 1365(d); and

c) Issuance of a permanent in-

junction against each defendant, barring

any further discharge of raw sewerage in-

to the waters of the Back River.

DATED: October 27, 1980.

Roy E. Davis

/3/ By: Wayne Moore

/s/ Wayne Moore

TESOL eee ee

l3a

D. Wayne Moore

Counsel for Plaintiff

MOORE, MOORE & BRADBERRY

13185 Warwick Boulevard

Newport News, Virginia 23602

CERTIFTIZCATE

I certify that a true copy of the

foregoing Complaint was this 27 day of

October, 1980, mailed by registered U.S.

mail, postage prepaid, to the Attorney

General of the United States, U. S. Jus-

tice Department, Washington, D. C. in

accordance with Rule 4(d), Federal

Rules of Civil Procedure.

/s/ Wayne Moore

D. Wayne Moore

l4a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NEWPORT NEWS DIVISION

ROY E. DAVIS,

Plaintiff,

Vv. CIVIL ACTION NO.

80-202-NN

UNITED STATES OF AMERICA,

UNITED STATES AIR FORCE,

AND THE CITY OF HAMPTON,

Defendant.

ANSWER

THE UNITED STATES AND THE UNITED

STATES AIR FORCE, by and through the

United States Attorney, for the Eastern

District of Virginia, answer the com-

plaint of plaintiff Roy E. Davis as

follows:

1. Admits that jurisdiction in his

case exists under the Federal Tort Claims

Act but deny all other allegations of

paragraph 1 of the Complaint.

2. Admits the allegations of para-

graph 2 of the Complaint.

15a

COUNT ONE

CLAIM AGAINST THE FEDERAL SOVEREIGN

3. Admit the allegations of para-

graph 3 of the Complaint.

4. Admit the allegations of para-

graph 4 of the Complaint.

5. The defendant United States ad-

mits that the plaintiff is in the busi-

ness of purchasing clams, transplanting

them in the Back River, harvesting them

and then selling them to the public. The

defendant United States is without suffi-

cient information to form an opinion with

regard to the other allegations of para-

graph 3, and accordingly, denies said

allegations.

6. The defendant admits the alle-

gations of paragraph 6, except that the

defendant is without knowledge with re=-

gard to the length of time the plaintiff

has been in the business of clam pro-

l6a }

cessing and accordingly denies alle-

gations with regard to the length of

time.

7. The defendant United States ad-

mits that in the year 1979 tl» Back Ri-

ver was closed to the harvesting of .-

shellfish on several occasions by the

Virginia State Health Department. The

defendant United States admits that on

at least nine (9) occasions between

February 25, 1979 and September 6, 1979

overflows of sewage occurred near pump

station 1370 at Langley Air Force Base,

Virginia which may have resulted in

“quantities of partially treated sewage

entering the Back River. The defendant

United States denies the other allega-

tions of paragraph Fe

8. Admit that occasional and inter- ‘

mittent discharges of less than fully

treated sewage occurred at the Building

17a

1370 pumping station on Langley Air Force

Base and that said pumping station is

operated by the defendant United States

Air Force, an agency of the defendant the

United States. Defendants aver addition-

ally that discharges of untreated or in-

adequately treated sewage occurred at

other locations under the control of per-

sons other than the federal defendants.

9. Deny the allegations of paragraph

9 of the Complaint.

10. The defendant United States ad-

mits that Langley Air Force Base is sub-

ject to the Federal Water Pollutions Con-

trol Act and that plaintiff filed a suit

in this district, Civil Action No. 79-

113-NN, under such act. The defendant

denies any knowledge of the motive which

prompted the filing of said suit. De-

fendant admits that the Environmental

_ Protection Agency issued an order on June

18a

1, 1979 but denies the effect of that or-

der. Defendant avers further that the

Environmental Protection Agency issued an

Order on December 1, 1980 under its auth-

ority allowing Langley until July 1, 1983

to come into full compliance with the

provisions of the Clean Water Act (pre-

viously known as the Federal Water Poll-

ution Control Act.)

ll. Deny the allegations of paragraph

ll of the Complaint.

12. Admit that the defendant United

States was notified by claim of Septem-

ber 13, 1979, but deny knowledge of the

nature, cause or extent of any damages

allegedly suffered by plaintiff. Defen-

dant also denies that any damages was

caused by the action of the defendant

United States.

13. Admit the allegations of para-

graph 13 of the Complaint.

19a

COUNT TWO

CLAIM AGAINST THE MUNICIPAL SOVEREIGN

14-21. Federal defendants pray that

they be excused from answering paragraphs

14-21 of the Complaint which pertain

solely to the defendant City of Hampton.

Federal defendants do not possess know-

ledge sufficient to form a belief as to

the truth of the allegations contained

in paragraphs 14-21.

DAMAGES

22. Deny the allegation of damages

contained in paragraph 23 of the Com-

plaint.

PRAYER

23. Deny the allegations contained

in paragraph 23 of the Complaint.

Affirmative Defenses

1. The plaintiff has failed to join

other known and potential polluters of

the Back River, including both point and

non-point sources of pollution, and has %

20a

failed to join the Hampton Roads Sanita-

tion District, an agency known to the

plaintiff, whose acts and powers direct-

ly and indirectly control the amount of

pollutants that are discharged into the

Back River. The failure to join these

indespensible parties will result in un-

just and incomplete adjudication of the

allegations in the complaint.

2. The plaintiff assumed the risk of

injury by instituting a business to plant

and harvest clams in the Back River, a

river portions of which have been perman-

ently closed for years because of high

levels of fecal coliform and other pollu-

tants and other portions of which have

been periodically closed temporarily,

because the river becomes periodically

inundated with high levels of fecal coli-

form and other pollutants during periods

of moderate to heavy rain fall.

eS a =

2la

3. The plaintiff's own negligence

contributed to the alleged injury in

that the plaintiff failed to plant and

harvest his clams in a manner that would

insure that they would not die during

periods when the Back River was closed

on account of the presence of fecal

coliform and other pollutants.

4. The plaintiff's own negligence

contributed to the alleged injury in that

the plaintiff, along with others, dis-

charged pollutants into the Back River

which elevated the level of fecal coli-

form and other pollutants in the river.

5. The Federal defendant's alleged

actions and omissions in establishing

the collection facilities for sewage at

Langley Air Force Base constitute acts

and omissions of an employee of the

government, exercising due care, in the

execution of a statute or regulation and.

Bes

im

~«

\

-

:

wo

22a

is based on the exercise and performance

and/or failure to exercise or perform

discretionary functions and duties on

the part of a Federal agency.

6. The alleged pollution of the

Back River resulted from rain fall, in

the Newport News-Hampton, Virginia area,

which was an act of God and was the

proximate and superceding cause of the

alleged injury complained of.

7. The plaintiff is restricted to

recovering attorney's fees under the

Tort Claim Act and is barred from recov-

ering attorney's fees under Title 33,

United States Code, by the doctrine of

Res Judicata.

8. The plaintiff is barred from

bringing an action under 33 U.S.C. 1365

by the doctrine of Res Judicata.

WHEREFORE the defendant United States

23a

petition this Honorable Court to dismiss

the complaint with vrejudice and cost.

UNITED STATES OF

AMERICA

/s/ By: John F. Kane

Assistant United

States Attorney

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NEWPORT NEWS DIVISION

ROY E. DAVIS, Individually and

Trading as ROY E. DAVIS SEAFOOD,

Plaintiff,

Vv. CIVIL ACTION FILE

NO. 80-202-NN

UNITED STATES OF AMERICA and

its Agency the UNITED STATES

AIR FORCE,

and

THE CITY OF HAMPTON, a political

subdivision of the Commonwealth of

Virginia,

Defendants.

MOTION TO AMEND COMPLAINT

COMES NOW Plaintiff, by counsel,

and pursuant to Rule i5, Federal Rules of

Civil Procedure, moves to amend para-

graph ore (1) of the Complaint by adding

the following language: "Further, plain-

tiff asserts federal question jurisdic-

tion under 28 USC 1331."

ROY E. DAVIS

25a

/s/ By: Wayne Moore

Of Counsel

/s/ Wayne Moore

Counsel for Plaintiff

13185 Warwick Boulevard

Newport News, Virginia 23602

CERTIFICATE

I hereby certify that a true and

correct copy of the foregoing Motion to

Amend Complaint was this 24th day of

June, 1981 mailed to all counsel of re-

cord.

/s/ Wayne Moore

MOORE, MOORE & BRAD- “@

BERRY

-

3

7

4

26a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NEWPORT NEWS DIVISION

ROY E. DAVIS, Individually

and Trading as ROY E. DAVIS

SEAFOOD,

Plaintiff,

Vv. CIVIL ACTION NO:

80-202-NN

UNITED STATES OF AMERICA and

its Agency the UNITED STATES

AIR FORCE,

and

THE CITY OF HAMPTON, a political

subdivision of the Commonwealth

of Virginia,

Defendants.

MOTION TO DISMISS

Comes now the United States by its

attorney and moves this Honorable Court

to dismiss the complaint on the grounds

that the Court lacks jurisdiction over

the subject matter, that the complaint”

fails to state a claim upon which relief

has failed to join indispensable parties,

for the reasons more fully set forth in i

27a

the attached Memorandum In Support of the

Motion to Dismiss.

Respectfully submitted,

ELSIE L. MUNSELL

UNITED STATES ATTORNEY

/s/ By: John F. Kane

John F. Kane

Assistant United States

Attorney

28a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NEWPORT NEWS DIVISION

ROY E. DAVIS, Individually

and Trading as ROY E. DAVIS

SEAFOOD,

Plaintiff,

Vv. CIVIL ACTION NO.:

80-202-NN

UNITED STATES OF AMERICA and

its Agency the UNITED STATES

AIR FORCE, ?

and

THE CITY OF HAMPTON, a political

subdivision of the Commonwealth

of Virginia,

Defendants.

RESPONSE TO MOTION TO DISMISS

COMES NOW Plaintiff, ROY E. DAVIS,

by counsel, and says that this Honorable

Court has jurisdiction over the subject

matter of Plaintiff's complaint under

the provisions of the Federal Tort Claims

Act; that the Plaintiff has asserted a

claim upon which relief can be granted

in the form of monetary damages awarded e

ww

29a \

against the polluting parties; and that

the Plaintiff has joined all parties

necessary to a complete adjudication, on

the merits, of Plaintiff's claim for

damages arising from the massive pollu-

tion of the Back River as a direct and

proximate result of the actions and in-

actions of the Defendants.

A memorandum in support of this re-

sponse is being filed contemporaneously

herewith. | :

ROY E. DAVIS, Individu-

ally and Trading as 4

ROY E. DAVIS SEAFOOD

/s/ James E. Bradberry ;

Of Counsel 7

/s/ James E. Bradberry Re

MOORE, MOORE & BRADBERRY a

13185 Warwick Boulevard

Newport News, Virginia 23602

CERTIFICATE

I hereby certify that a true and :

correct copy of the foregoing Response

to Motion to Dismiss was this 5th day of

30a

April, 1982 mailed to all counsel of re-

cord.

/s/ James E. Bradberry

MOORE, MOORE & BRADBERRY

3la

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

ROY E. DAVIS, ETC.,

Plaintiff,

Vv. CIVIL ACTION NO.:

80-202-NN

UNITED STATES OF AMERICA, ETC., ET AL.,

Defendants.

MEMORANDUM ORDER

Plaintiff operates a seafood busi-

ness in Back River, a tributary of the

Chesapeake Bay. As a part of this busi- ©

ness, plaintiff purchases polluted clams §

and transplants the clams from polluted

water to Back River where the clams are

cleansed. The area of river bottom used

by plaintiff is leased by plaintiff from B

the Commonwealth of Viteinta; Prior to a

the commencement of this action, the a"

Virginia State Health Department closed a

Back River to the harvesting of shell- 4

fish due to the discharge of untreated

iit

32a

sewage into Back River. Plaintiff has

instituted this action against the .

United States and the City of Hampton,

asserting that it was their discharge of

sewage into Back River that caused the

closing of Back River to shellfishing.

The defendants have filed motions to dis-

miss, asserting several bases for the

motion. The Court need address only the

United States' motion to dismiss for

failure to state a claim upon which re-

lief may be granted.

Plaintiff asserts in his complaint

that the pollution of Back River by de-

fendants is in vidlation of the Federal

Water Pollution Control Act, 33 U.S.C.

65 1251 et seg. Plaintiff also asserts

that the City of Hampton's actions are

in violation of Virginia law. Because :

of the injury he has suffered as a re- :

sult, he seeks damages of $321,852.00, "g

33a

recovery of attorney's and witness fees,

and issuance of a permanent injunction

prohibiting defendants from polluting

the Back River.

The Supreme Court has recently de-

cided what rights are conferred on pri-

vate citizens by the Federal Water Pollu-

tion Control Act. Middlesex County Sew-

erage Authority v. National Sea Clammers

4 Assoc., 101 S. Ct. 2615 (1981). In

Middlesex the Court ruled that the FPWPCA

conferred no private right of action in-

dependent of the citizen suit provisions

of the Act. The citizen suit provision,

33 U.S.C. § 1365, permits suit against

any person who is alleged to be in viola-

tion of a standard or limitation pro-

mulgated under the Act. 33 U.S.C. 8 1365

(a). "This provision... authorized only

ny prospective relief, and the citizen ee

plaintiffs first must give notice to the ‘

‘we

\y

34a

EPA, the State, and any alleged viola-

tor." 101 S. Ct. at 2619. Plaintiff's

claims under the FWPCA fail in two re- *

spects. First, the complaint does not

state that plaintiff served the requisite

notice. Second, the claim fails because

the FWPCA confers no right to recover

damages; the only remedies available are

those provided by the Act. 101 S. Ct.

at 2625. Under the rule of Middlesex,

plaintiff's claims under the FWPCA

against the United States and City of

Hampton must be dismissed.

Despite the rule of Middlesex,

plaintiff argues that he may still suc-

ceed in this action. Plaintiff would

read Middlesex as limited to those situ-

ations in which a private right of action

is asserted under the FWPCA. In plain-

tiff's view, Middlesex does not affect

actions brought under the Federal Tort

35a

Claims Act. 28 U.S.C. 8 1346.

There are two problems with plain-

tiff's theory. First, plaintiff is

seeking to recover for a tort based upon

the violation of effluent standards es-

tablished pursuant to the FWPCA. Effect-

ively, plaintiff is seeking to enforce

the FWPCA, despite Middlesex, through a

private right of action. In view of the

Supreme Court's holding in Middlesex,

especially the Court's discussion of the

Act's saving clause , 33 U.S.C. 8 1365(e),

to accept plaintiff's theory would fly

in the face of Middlesex. The Federal

Tort Claims Act cannot be used to cir-

cumvent the scheme of the FWPCA. This

conclusion is buttressed by the second

flaw in plaintiff's theory. In City of

Milwaukee v. Illinois, 101 S. Ct. 1784

(1981), the Supreme Court held that the

FWPCA has superseded the federal common

- J . ] .

x P

iy

a

36a

law of nuisance. Were plaintiff per-

mitted to bring a nuisance action based

upon a violation of the FWPCA under the

Federal Tort Claims Act, not only would

Middlesex be circumvented, but a fed-

eral common law of nuisance would be re-

established--through the use of the very

statute that supplanted the common law

with a statutory scheme. The Federal

Tort Claims Act cannot be used to cause

such an incongruous result.

Having dismissed all plaintiff's

claims against the United States, the

Court now turns to plaintiff's remaining

Claims against the City of Hampton. All

of plaintiff's remaining claims against

the City of Hampton are matters of state

law. As the United States is no longer

a party, and there are no remaining fed-

eral causes of action, this Court will

decline to retain jurisdiction over

37a

plaintiff's state law claims. Plain-

tiff's state law claims are dismissed

without prejudice.

The Clerk is directed to enter an

appropriate order.

It is so ORDERED.

Dated at Norfolk, Virginia, this 13th

day of April, 1982.

/s/ John A. MacKenzie

United States Dis-

trict Judge

38a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRQUIT

NO. 82-1423

ROY E. DAVIS, Individually and

Trading as ROY E. DAVIS SEAFOOD,

Appellant,

versus

UNITED STATES OF AMERICA and its

Agency the United States Air Force

the City of Hampton, a political

subdivision of the Commonwealth

of Virginia,

Appellees,

and

Hampton Roads Sanitation District,

Third-Party Defendant.

Appeal from the United States District

Court for the Eastern District of Vir-

ginia, at Newport News. John A.

MacKenzie, District Judge.

Argued: January ll, 1983

Decided: September 14, 1983

Before PHILLIPS and CHAPMAN, Circuit

Judges; and FIELD, Senior Circuit Judge.

39a

James E. Bradberry (D. Wayne. Moore,

Moore, Moore and Bradberry on brief) for

Appellants; Janet L. Steckel, Dept. of

Justice (Carol E. Dinkins, Assistant

Attorney General; Elsie Munsell, United

| States Attorney, John F. Kane, Assistant

United States Attorney; Kirk D. Snel,

Dept. of Justice on brief) for Appellee.

40a

PER CURIAM:

This is an appeal by Roy E. Davis

from a final judgment of the district

court dismissing his complaint under the

Federal Tort Claims Act. 28 U.S.C. §

1346(b), and 2671 et seg., seeking dama-

ges against the United States resulting

from the alleged violation by Langley

Air Force Base of the Federal Water Pol-

lution Control Act, 33 U.S.C. 1251 et

seq. The relevant facts are summarized

as follows.

The plaintiff operated a seafood

business in Back River, a tributary of

the Chesapeake Bay. Incident to this

business, the plaintiff purchased poliu-

ted clams and transplanted them in the

Back River where the clams were cleansed.

Yhe area of the river bottom used by the

plaintiff was leased from the Common-

wealth of Virginia. Prior to the conm- =

4la

mencement of this action the Vircinia

State Health Department closed Back

River to the harvesting of shellfish due

to the discharge of untreated sewage

into the river. In his complaint filed

against the United States and the City

of Hampton, Virginia, the plaintiff

asserted that it was their discharge of

sewage which caused the closing of the

river.

Prior to the institution of this

action, Davis had filed a complaint

against the Air Force and the Environ-

mental Protection Agency under the

citizen suit provision of the FWPCA, 33

U.S.C. 8 1365, alleging violations of

the Act and seeking enforcement of the

statute. In the course of this liti-

gation the EPA determined that the Air

Force had made substantial and good faith

efforts to comply with the requirements

42a

of the FWPCA, and ultimately a consent

decree was entered dismissing the en-

forcement action. In the decree Davis

stated that he found the actions of the

EPA to be “adequate and reasonable based

on current circumstances", and the action

was dismissed by an order which, among

other things, approved the payment of

attorney fees and costs to Davis' coun-

sel in that litigation.

Prior to the dismissal of the en-

forcement action, Davis had filed his

complaint in the present case on October

27, 1980. Thereafter, both the United

States and the City of Hampton filed

motions to dismiss which motions were

granted by the district court. The basis

for the dismissal of the action against of

the United States was the failure of the

plaintiff to state a claim upon which

relief could be granted, and since the

43a

federal cause of action were eliminated,

the district court also dismissed with-

out prejudice Davis' pendant claims

against the City of Hampton.

In dismissing the action against the

United States, the district court relied

upon Middlesex County Sewerage Authority

v. National Sea Clammers Assoc., 453 U.S.

1 (1981), in which the court held the

FWPCA conferred no private cause of

action independant of the citizens suit

provisions of the Act. The plaintiff,

however, contended in the district

court, as he does here, that Middlesex

does not apply to actions brought under

the Tort Claims Act. The district

judge rejected this theory, stating that,

in effect, the plaintiff was seeking to

enforce the FWPCA through a private cause

of action. We agree with the district

eas the Tort Claims jact cannot be

; ‘— (et

~

“s

. hes

ey

44a

used to circumvent the legislative scheme

of the FWPCA as recognized and inter-

preted by the court in Middlesex. The

complaint in this action posits the right

of recovery solely on the FWPCA and con-

tains no allegations of negligence or

wrongful conduct on the part of the

United States other than the alleged

violations of the Act. Absent such alle-

gations, the district court correctly

held that the plaintiff had failed to

state a claim upon which relief could be

, or

granted. We are further of the opinion

dae. 2 ae h

that consequent dismissal of the pendant

claims against the City of Hampton was

appropriate.

Accordingly, the judgment of dis- '

|

: missal is affirmed.

{ AFFIRMED a

45a

STATUTORY APPENDIX

28 U.S.C. 1331

(at time of suit)

(a) The district courts shall have

Original jurisdiction of all civil act-

ions wherein the matter in conroversy

exceeds the sum or value of $10,000, ex-

Cclusive of interest and costs, and arises

under the Constitution, laws, or treaties

of the United States, except that no such

sum or value shall be required in any

such action brought against the United

States, any agency thereof, or any

officer or employee thereof in his

official capacity.

(b) * * #

(as amended)

The district courts shall have origin-

al jurisdiction of all civil actions

arising under the Constitution, laws, or —

treaties of the United States.

46a

28 U.S.C. 1346 (b)

Subject to the provisions of chapter

171 of this title [28 uscs 68 2671 et

seq.], the district courts, together with

the United States District Court for the

District. of the Canal Zone and the Dis-

trict Court of the Virgin Islands, shall

have exclusive jurisdiction of civil

actions on claims against the United

States, for money damages, accruing on

and after January 1, 1945, for injury or

loss of property, or personal injury or

death caused by the negligent or wrong-

ful 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.

47a

28 U.S.C. 2674

The United States shall be liable,

respecting the provisions of this title

relating tc tort claims, in the same

manner and to the same extent as a pri-

vate individual under like circumstances,

but shall not be liable for interest

prior to judgment or for punitive dam-

ages.

If, however, in any case wherein

death was caused, the law of the place

where the act or omission complained of

occurred provides, or has been construed

to provide, for damages only punitive in

nature, the United States shall be li-

able for actual or compensatory damages,

measured by the pecuniary injuries re-

sulting from such death to the persons

respectively, for whose benefit the

action was brought, in lieu thereof.

48a

28 U.S.C. 2680

The provisions of this chapter and

section 1346(b) of this title [28 uscs 6

1346(b)] shall not apply to-

(a) Any claim based upon an act

or omission of an employee of the Govern-

ment, exercising due care, in the execu-

cion of a statute or regulation, whether

or not such statute or regulation be

valid, or based upon the exercise or per-

formance 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.

(b) Any claim arising out of the

loss, miscarriage, or negligent trans-

mission of letters or postal matter.

(c) Any claim arising in respect

of the assessment or collection of any

tax or customs duty, or the detention of

49a

any goods or merchandise by any officer

of customs or excise or any other law-

enforcement officer.

(d) Any claim for which a remedy

is provided by sections 741-752, 781-790

of Title 46 [46 uscS 58 741 et seq.), re-

lating to claims or suits in admirality

against the United States.

(e) Any claim arising out of an

act or omission of any employee of the

Government in administering the provi-

sions of sections 1-31 of Title 50,

Appendix [50 Appx uscs 88.1 et seq.].

(£) Any claim for damages caused

by the imposition or establishment of a

quarantine by the United States.

(g) [Repealed]

(h) Any claim arising out of

assault, battery, false imprisonment, B

false arrest, malicious prosecution,

abuse of process, libel, slander, misre-

50a

presentation, deceit, or interference

with contract rights: Provided, that,

with regard to acts or omissions of in-

vestigative or law enforcement officers

of the United States Government, the

provisions of this chapter and section

1346(b) of this title [28 uscs 8 1346(b)]

shall apply to any claim arising, on or

after the date of the enactment of this

proviso, out of assault, battery, false

imprisonment, false arrest, abuse of pro-

cess, Or malicious prosecution. For the

purpose of this subsection, "“investiga-

tive 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.

(i) Any claim for damages caused

by the fiscal operations of the Treasury

or by the regulation of the monetary

-

— re

. Y RIt<

5la

system.

(j) Any claim arising out of the

combatent activities of the military or

naval forces, or the Coast Guard, during

time of war.

(k) Any claim arising in a for-

eign country.

(1) Any claim arising from the

activities of the Tennesse Valley

Authority.

(m) Any claim arising from the

activities of the Panama Canal Company.

(nm) Any claim arising from the

activities of a Federal land bank, a

Federal intermediate credit bank, or a

bank for co-operatives.

33 U.S.C. 1365-Citizen Suits

(a) Authorization; jurisdiction. Except

as provided in subsection (b) of this

section, any citizen may commence a civil

action on his own behalf-

52a

(1) against any r<ison (including (i)

the United States, and (ii) any other

governmental instrumentality or agency

to the extent permitted by the eleven-

th amendment to the Constitution) who

is alleged to be in violation of (A)

an effluent standard or limitation

under this Act or (B) an order issued

by the Administrator or a State with

respect to such a standard or limita-

tion, or

(2) against the Administrator where

there is alleged a failure of the Ad-

ministrator to perform any act or

duty under this Act which is not dis-

cretionary with the Administrator.

The district courts shall have juris-

diction, without regard to the amount in

controversy or the citizenship of the

parties, to enforce such an effluent

standard or limitation, or such an order,

53a

or to order the Administrator to perform

such act or duty, as the case may be, and

to apply any appropriate civil penalties

under section 309(d) of this Act [33 USCS

§ 1319).

(b) Notice. No action may be commenced-

(1) under subsection (a)(1) of this

section-

(A) prior to sixty days after

the plaintiff has given notice of

the alleged violation (i) to the

Administrator, (ii) to the State

in which the alleged violation

occurs, and (iii) to any alleged

violator of the standard, limita-

tion, or order, or

(B) if the Administrator or State

has commenced and is diligently

prosecuting a civil or criminal

action in a court of the United

States, or a State to require conm-

24

&,

rn

—-*, 2

, fis

ee

r +,

al

7

" m

;

A

:

(c)

54a

pliance with the standard, limita-

tion, or order, but in any such

action in a court of the United

States any citizen may intervene

as a matter of right.

(2) under subsection (a) (2) of this

section prior to sixty days after the

plaintiff has given notice of such

action to the Administrator, except

that such action may be brought imme-

diately after such notification in the

case of an action under this section "y

respecting a violation of sections

306 and 307(a) of this Act[33 USCS

88 1316, 1317(a)]). Notice under this

subsection shall be given in such

manner as the Administrator shall pre-

scribe by regulation.

Venue; intervention be Administrator.

(1) Any action respecting a violation

by a charge discharge source of an

x

55a

effluent standard or limitation or an

order respecting such standard or lim-

itation may be brought under this sec-

tion only in the judicial district in

which such source is located.

(2) In such action under this section,

the Administrator, if not a party, may

intervene as a matter of right.

(ad) Litigation costs. The court, in

issuing any final order in any action

brought pursuant to this section, may

award cost of litigation (including rea-

sonable attorney and expert witness fees)

to any party, whenever the court deter-

mines such award is appropriate. The

court may, if a temporary restraining

order or preliminary injunction is

sought, require the filing of a bond or

equivalent security in accordance with

the Federal Rules of Civil Procedure.

(e) Statutory or. common law rights not

56a

restricted. Nothing in this section

shall restrict any right which any person

(or class of persons) may have under any

statute or common law to seek enforcement

of any effluent standard or limitation or

seek any other relief (including relief

against the Administrator or a State

agency).

(f) * * ®#

(g) Citizen. For the purposes of this

section the term "citizen" means a per-

son Or persons having an interest which

is or may be adversely affected.

(h) * * ®#

Title 21, Code of Virginia

Section 218- Discharge into tidal

waters of matter causing pollution.- No

county, city, town or other public body,

or person shall discharge, or suffer to

be discharged, directly or indirectly in-

to any tidal waters of the district any

-

es

57a

sewage, industrial wastes or other refuse

which may or will cause or contribute to

pollution of any tidal waters of the dis-

trict any sewage, industrial wastes or

other refuse which may or will cause or

contribute to pollution of any tidal

waters of the district, provided, that

this provision shall be applicable only

to such part or parts of the tidal waters

of a district as shall be bounded and de-

scribed in a notice, published in a news-

paper or newspapers having, in the aggre-

gate, general circulation in all of the

counties and cities within which or bor-

dering upon which such part or parts of

the tidal waters of the district are lo-

cated, to the effect that the commission

has provided facilities reasonably

sufficient in its opinion for the dispo-

sal of sewage, which by discharge from

public sewer systems might cause or con-

io

58a

tribute to pollution of the bounded and

described part or parts of such tidal

waters, and that pollution of the same is

forbidden by law. Such a notice shall

constitute prima facie evidence of the

existence of facilities sufficient for

the disposal of such sewage. The provi-

sions of this section shall not prohibit

the disposal of sewage and industrial

wastes in the manner in which the same

is now being disposed of, or in any other

reasonable manner, by any county, city,

or town, no part of which constitutes a

part of any district, or by any person

in any such county, city or town, no part

of which constitutes a part of any dis-

trict.

Section 223- Punishment of violations.

- Any person violating any provision of

\this chapter shall be guilty of a mis-

demeanor and upon conviction shall be

* ee Se

Sei) Be

punished accordingly.

Title 62.1, Code of Virginia

Section 44.3(6)Definitions. "Pollution"

means such alteration of the physical,

chemical or biological properties of any

state waters as well as or likely to

create a nuisance or render such waters

(a) harmful or detrimental or injurious

to the public health, safety or welfare,

or to the health of animals, fish or

aquatic life; (b) unsuitable with rea-

sonable treatment for use as present or

possible future sources of public water

supply; or (c) unsuitable for recreation-

al, commercial, industrial, agricultural,

or other reasonable uses; provided that

(i) any alteration of the physical, chen-

ical, or biological property of state

waters, or a discharge or deposit of sew-

age, industrial wastes or other wastes to =~

state waters by any owner which by itself % i

is not sufficient to cause pollution, but

which, in combination with such alter-

ation of or discharge or deposit to state

waters by other owners is sufficient to

cause pollution; (ii) the discharge of

untreated sewage by any owner into state

waters; and (iii) contributing to the

contravention of standards of water qual-

ity duly established by the Board, are

"pollution" for the terms and purposes of

this chapter.

Section 44.5-Public policy regarding

waste discharges or other quality alter-

ations of state waters.- It is hereby de-

clared to be against public policy for

any owner who does not have a certificate

“issued by the Board to (1) discharge into

state waters inadequately treated sewage,

industrial wastes, other wastes, or any

ge ee a re eS ee

biological properties of such state

waters and make them detrimental to the

public health, or to animal or aquatic

life, or to the uses of such waters for

domestic or industrial consumption, or

for recreation, or for other uses.