Opposition — Davis v. United States

No. 83-1241

Jn the Supreme Court of the Hnited States

OCTOBER TERM, 1983

Roy E. Davis, ETC., PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

F. HENRY Hasicurt, II a

Assistant Attorney General

Dirk D. SNEL

JANET L. STECKEL

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the district court properly dismissed petitioner's

action under the Federal Tort Claims Act for damages to

compensate for the government's alleged violation of the

Clean Water Act's pollutant discharge restrictions.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

City of Milwaukee v. Illinois, 451 U.S.

Dl adh Adnan é6ekwedbbesedtievecesone 5, 6, 7,8

Flanagan v. Gregory and Poole, Inc.,

136 W. Va. 554, 67S.E. 2d 865 .........0008. 6

Hough v. Marsh, 557 F. Supp. 74 .........+++: 8

Maine v. Thiboutot, 448 U.S.1 2.6.6.6. c eens 7

Middlesex County Sewerage Authority v.

National Sea Clammers Association, 453

CEU DE Reesk che eCnebes cedebeccdcoes 5, 6, 7,8

National Sea Clammers Association v. City

of New York, 616 F.2d 1222 ........ceeeeeeee 7

Statutes:

Administrative Procedure Act, 5 U.S.C.

DT UMihats da bbeshsdebderinerovcocecces 8

Clean Water Act, 33 U.S.C. (& Supp. V)

SEO GU GDE, cccccccvcccesecccccccecoecccccs 2

§ 404, 33 U.S.C. (Supp. V) 1344 ........... iy

Fae BP OME RIED ccccccccccccccce 1,3,8

(111)

IV

Page

Statutes—Continued:

§ 50S(a), 33 U.S.C. 136S(a) «2... cece eee 5,6

§ 505(a)(2), 33 U.S.C. 136S(aX(2) ..... 600s x

§ 50S(e), 33 U.S.C. 136S(e) «0... cece ee eeenes 8

Clean Water Act of 1977, Pub. L. No. 95-217,

© 2, DE Beat. 1566 .cccccccccccvccccvcsccccess 4

Federal Tort Claims Act:

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28 U.S.C. (& Supp. V) 2671 ef seg. ......++: 2

p fie rrr 6

42 U.S.C. (Supp. V) 1983 ......cccereeeeeeeees 7

Gu the Supreme Court of the Mnited States

Octoser Term, 1983

No. 83-1241

Roy E. Davis, ETC., PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 38a-44a) is

reported at 722 F. 2d 1157. The opinion of the district court

(Pet. App. 3la-37a) is unreported.

JURISDICTION

The judgment of the court of appeal was entered on

September 14, 1983. The petition for a writ of certiorari was

filed as of December 2, 1983. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATUTES INVOLVED

28 U.S.C. 1346(b), originally enacted as part of the Fed-

eral Tort Claims Act, and portions of Section 505 of the

Clean Water Act, 33 U.S.C. 1365, are set forth at Pet. App.

31a-32a, 34a-37a.

(1)

STATEMENT

1. Petitioner instituted this action in the United States

District Court for the Eastern District of Virginia in

October 1980. He sought damages against the United States

under the Federal Tort Claims Act, 28 U.S.C. 1346(b) and

28 U.S.C. (& Supp. V) 2671 et seq., for alleged violations of

the Clean Water Act, 33 U.S.C. (& Supp. V) 1251 et seq., by

the United States Air Force at Langley Air Force Base in

Virginia. Petitioner buys polluted clams and transplants

them from polluted waters to the Back River in Virginia

where the clams are cleansed and resold. Langley Air Force

Base, which fronts on the Back River, operates a sewage

collection system and pumping facility through which sew-

age and wastes are pumped into sewage lines owned and

operated by the Hampton Roads Sanitation District, alsoa

defendant in the district court. Pet. App. 3la-32a, 40a-4la.

2. On June 22, 1979, the United States Environmental

Protection Agency (EPA) issued a notice of violation and

order for compliance to Langley Air Force Base. EPA

found that in recent years because of increased pressure

during heavy rains, Langley had been unable to pump all of

its sewage into the Sanitation District's system, resulting in

sewage overflow in violation of the Clean Water Act.'

EPA's order directed Langley to identify the causes of past

releases of untreated sewage and to plan preventive actions.

It also required Langley to submit to EPA and the Virginia

State Water Control Board a schedule for expeditious

compliance with Virginia's sewage regulations. Langley

notified EPA of the actions it was taking to alleviate the

'We are lodging with the Court a separate addendum of documents

that were filed in Davis v. United States, No. 79-1 13-NN (E.D. Va), the

companion case to the instant action. The EPA orders, as well as

a oe Se ee ee eee

aaa 4.

al

3

problem. However, Langley noted that it was having diffi-

culty pumping sewage into the Sanitation District's force

main because of high pressures in the main that caused

overloading and resulted in untreated discharges. Langley

also asserted that other point-source discharges from

Hampton contributed to sewage discharges into the Back

River.

Prior to the commencement of the present action, peti-

tioner had filed another suit in the Eastern District of

Virginia (No. 79-113-NN) against the Air Force and the

EPA, invoking the “citizen suit” provision in Section 505 of

the Clean Water Act, 33 U.S.C. 1365. Thereafter, the

Commonwealth of Virginia intervened as a plaintiff in No.

79-113-NN, naming Langley, the Sanitation District, and

the Cities of Hampton and Newport News as defendants

and alleging violations of the Clean Water Act. The Com-

monwealth agreed to dismiss its suit after an adequate

program commenced for elimination of infiltration and

inflow.

On December 2, 1980, the EPA issued an extension order

to Langley. It found that Langley had made a substantial

and good faith effort to comply with the June 22, 1979 order

and the requirements of the Clean Water Act. Beause of the

corrective actions taken by Langley, Hampton and other

users of the Sanitation District's system, the agency found

that no overflow had occurred since December 1979. EPA

therefore extended the time for Langley to achieve complete

compliance. As a result of these actions by EPA, on Janu-

ary 27, 1981, petitioner entered into a consent decree with

EPA and the Air Force to dismiss No. 79-113-NN. If this

consent decree, petitioner expressly concurred that the

actions of the EPA were “adequate and reasonable based on

current circumstances.” The consent decree further stated

that it should not be construed to be an admission of

4

liability by any agency of the United States. Consequently,

the district court entered an order dismissing No. 79-

113-NN.

3. While No. 79-113-NN was still pending petitioner filed

the present complaint against the United States and the City

of Hampton (Pet. App. 2a-13a). With respect to the United

States, the new complaint alleged the same violations of the

Clean Water Act by Langley—the discharge of untreated

sewage into the Back River—that were asserted in No.

79-113-NN. These violations of the Act, the complaint

alleged, caused the closing of Back River by the Common-

wealth of Virginia and therefore of petitioner's shellfish

business (Pet. App. 4a-6a, paras. 7,9, 11). Asa result of this

alleged breach by the United States of its supposed duty not

to injure petitioner by a “wrongful discharge of sewage into

a navigable river in violation of the [Clean Water Act]

(Pet. App. 6a, paragraph 11), petitioner claimed $321,852

as damages against the United States pursuant to the Tort

Claims Act as compensation for his loss of business (Pet.

App. 2a-3a, Ila, para. 22).’

The United States moved to dismiss the complaint. The

district court granted the motion, relying on only one of the

several grounds urged by the government—that the com-

plaint failed to state a claim upon which relief could be

granted (Pet. App. 32a). The district court held that

2Petitioner Mfers to the Clean Water Act as the Federal Water

Pollution Control Act. Both designations may properly be used to

describe the Act. See Clean Water Act of 1977, Pub. L. No. 95-217, § 2,

91 Stat. 1566.

‘Petitioner had previously submitted an administrative claim for

damages as required by the Tort Claims Act. The Air Force denied the

tort claim on May 6, 1980 (Pet. App. 7a-8a), on the ground that there

was no negligence in the discharge of untreated sewage.

‘Thus, petitioner is incorrect when he asserts (Pet. 9-10) that the court

dismissed the case because it lacked “tort jurisdiction.”

5

petitioner’s action for damages under the Tort Claims Act,

based upon a violation of the Clean Water Act, was barred

by Middlesex County Sewerage Authority v. National Sea

Clammers Association (Sea Clammers), 453 U.S. 1 (1981),

and City of Milwaukee v. Illinois, 451 U.S. 304 (1981). The

district court noted that Sea Clammers and Milwaukee held

that the citizen suit provision of Section 505(a) of the Clean

Water Act, 33 U.S.C. 1365(a), is the exclusive remedy for

private citizens for violations of that Act, and preempts

private claims under federal common law or statute (Pet.

App. 33a-36a). Since all claims against the United States

were dismissed, eliminating the federal causes of action, the

court also dismissed without prejudice petitioner's pendent

claim against the City of Hampton (id. at 36a-37a).

4. The court of appeals affirmed (Pet. App. 38a-44a). It

agreed with the district court that petitioner was, in the

guise of a federal tort claim, seeking a private remedy for

violation of the Clean Water Act, a course barred by Sea

Clammers. Since petitioner’s complaint based the right of

recovery solely on Clean Water Act violations, and con-

tained no allegations of negligence or wrongful conduct

other than Clean Water Act violations, the court of appeals

held that the district court correctly dismissed the action for

failure to state a claim (Pet. App. 43a-44a).

DISCUSSION

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or any other

court of appeals. Accordingly, further review is not

warranted.

1. Petitioner seeks to have this Court decide an issue that

was not raised by his complaint and was not decided by the

lower courts. Petitioner concedes (Pet. 9-12), as he did

below, that this Court's decision in Sea Clammers bars any

private cause of action to remedy violations of the Clean

6

Water Act other than actions properly brought under the

citizen suit provision of Section 505(a) of that Act, 33

U.S.C. 1365(a). Petitioner argues, however, that Sea

Clammers did not eliminate “separate, independent and

long standing remedies for damage caused by the tortious

misconduct of the government” under the Tort Claims Act

(Pet. 12-13), and asserts that his claim was not based on

violations of the Clean Water Act, but on negligent pollu-

tion of the Back River (id. at 12-14). This is incorrect.

Petitioner’s complaint did not allege any negligent action

cognizable under the Virginia common law of tort. His

federal tort claim was based solely on “the wrongful dis-

charge of sewage into a navigable river in violation of the

[Clean Water Act] (Pet. App. 6a (emphasis added)). This

was the allegation that the district court (Pet. App. 32a) and

court of appeals (id. at 40a, 44a) addressed.‘

2. As a result of his change in tactics petitioner appar-

ently does not challenge the holdings made below that this

Court’s decisions in Sea Clammers and Milwaukee stand as

a bar to his action based on violations of the Clean Water

Act. The concession is compelled. “The establishment [in

the Clean Water Act] of such a self-consciously comprehen-

sive program” for the regulation of water pollution was

intended by Congress to preempt any private right of action

under federal common law to remedy any matter addressed

‘It is doubtful that petitioner could have asserted a negligent tort

against the government. The government denied petitioner's adminis-

trative claim for damages because it found that whatever pollution may

have occurred was not due to the negligent operation by Langley of its

sewage pumping facilities. A federal tort claim must be based ona claim

of negligent conduct by government employees, as opposed to other,

non-negligent, torts such as the creation of a nuisance. See 28 U.S.C.

1346(b), 2674; Flanagan v. Gregory and Poole, Inc., 136 W. Va. 554,

562, 67 S.E. 2d 865, 871 (1951) (defining nuisance as the violation of an

absolute duty, which may occur when the best of care is taken).

.

by the Act. City of Milwaukee v. Illinois, 451 U.S. at 319,

320. Sea Clammers, like the instant case, was a suit for

damages to remedy violations of the Clean Water Act. This

Court held (453 U.S. at 14) that recovery of damages for

violations of the Act was not permitted:

In view of the elaborate enforcement provisions it can-

not be assumed that Congress intended to authorize by

implication additional judicial remedies for private

citizens suing under [the Clean Water Act].

The Court there a!so considered, sua sponte, an alternative

statutory basis for the recovery of damages for violations of

the Act—42 U.S.C. (Supp. V) 1983, which authorizes rec-

overy of damages against state officials for civil rights viola-

tions. The Court found that recovery of damages was

barred for violations of the Clean Water Act under 42

U.S.C. (Supp. V, 1983 or any other statute. 453 U.S. at

20-21.’ Thus, it is beyond dispute that petitioner may not

pursue an action under the Tort Claims Act seeking com-

pensation for the government's alleged violation of the

Clean Water Act.®

*See Maine v. Thiboutot, 448 U.S. | (1980).

Petitioner correctly notes (Pet. 14) that Tort Claims Act recovery for

Clean Water Act violations was not addressed in Sea Clammers because

the federal tort claim was dismissed in the court of appeals as not timely.

National Sea Clammers Association v. City of New York, 616 F.2d

1222, 1236 (3d Cir. 1980). However, given this Court's broad language

in both Milwaukee and Sea Clammers regarding the preemptive nature

of the Clean Water Act in matters involving the enforcement of its

provisions, we cannot suppose a Tort Claims Act suit to remedy viola-

tions of the Clean Water Act would be treated differently from a civil

rights suit under 42 U.S.C. (Supp. V) 1983.

*Petitioner contends (Pet. 18) that the same issue is raised in other

actions pending in the district courts and that, therefore, his petiti

should be granted. Plaintiffs in Kelley v. United States, No. 79-10199

(E.D. Mich.) did raise a claim similar to petitioner's, but it was resolved

by aconsent decree. In Dickerson, Inc. v. American Electric Corp., No.

82-244-Civ-J-B (M.D. Fila.), plaintiffs claimed damages against the

This result is not altered by the savings clause in Section

505(e) of the Clean Water Act, 33 U.S.C. 1365(e), referred to

by petitioner (Pet. 15-17), which states:

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).

Petitioner's contention conflicts with this Court’s decisions

in Milwaukee, 451 U.S. at 328-329 and Sea Clammers, 453

U.S. at 20-21 n.31. Actions preserved by Section 505 are for

enforcement of other “anti-pollution standards arising

under other statutes or state common law,” but not other

remedies for the enforcement of the Clean Water Act. Sea

Clammers, 453 U.S. at 20 n. 31.9

private defendants for violating the Clean Water Act. But the claim

against the United States was a federal tort claim for damages based on

the government's alleged negligence. Therefore, Dickerson does not

involve precisely the same issue presented here.

*Hough v. Marsh, $57 F. Supp. 74 (D. Mass. 1982), cited by peti-

tioner (Pet. 13), does not present a square conflict with the lower court

rulings here. There, plaintiffs sought review under the Administrative

Procedure Act (APA), 5 U.S.C. 701-706, of a decision by the Corps of

Engineers to issue a permit, pursuant to Section 404 of the Clean Water

Act, 33 U.S.C. (Supp. V) 1344, to a party seeking to deposit landfill ina

wetland. The court correctly held the action under the APA should not

be dismissed because of the preemptive effect of the Clean Water Act's

citizen suit provision. It found that Section 505 had no application to

review of agency action under Section 404. And it noted that, while

Section $0S(a(2) (33 U.S.C. 1365(a)(2)) does permit actions to compel

performance cf nondiscretionary agency duties, issuance of a Section

404 permit wes a discretionary function, properly reviewable under the

APA. 557 F. Supp. at 78. The court also stated that the Clean Water

Act's citizen suit provision did no’ preempt an APA action because,

under Sea Clammers, the savings clause preserved actions under other

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E, LEE

Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

Dirk D. SNEL

JANET L. STECKEL

Attorneys

MARCH 1984

laws, such as the APA. 557 F. Supp. at 78-79. As we demonstrate above,

this portion of its ruling was incorrect. However, that error is of little

consequence here since the court's alternative ground for decision was

correct.