Petition for Writ of Certiorari — Fernandes v. Environmental Protection Agency
Supreme Court brief1998
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Supreme Court of the United States
October Term, 1998
Nelson Fernandes,
Petitioner,
V.
EPA, Administrator of the EPA,
Regional Administrator for Region II,
Commissioner of NJDEP,
Rockaway Township Town Council,
Attorney General of the United States,
Respondents.
Petition for Writ of Certiorari
Nelson Fernandes, Pro-Se
9 Fox Run
Denville, N.J. 07834
(973) 627 — 2138
Questions for Review
1. Did appellate panel violate law of the case, stare decisis,
and dismissal without prejudice by affirming res judicata based on
the 95 opinion, overlooking the May 1995 affirmed dismissal
without prejudice (Exh. F). Did it also err by overlooking orders
that show the court relied on its Aug. 95 order for res judicata.
2. Did defendants waive their right to res judicata by not
previously appealing the May 1995 order or March 1995 opinion.
And does law of the case require the courts to honor the
dismissal without prejudice, and limit sanctions to a re-filing of
only those claims listed in the affirmed 1995 opinion.
3. Did district court lack jurisdiction to render its Aug. 1995
order, thus causing a manifest injustice by finding res judicata,
since the 1997 opinion states it relinquished jurisdiction in the
March 1995 opinion on statute of limitations grounds, and by not
vacating the May 95 order to regain jurisdiction.
4. Did a constitutionally protected property interest develop
in the affirmed dismissal when defendants failed to appeal, and
did courts take that interest contrary to law of the case rules. Did
panel err by ruling on the 95 opinion, instead of finding court had
no power to deviate based on orders appellant provided.
5. Does the record show the courts failed to read the
complaint on appellant’s equitable tolling allegation, and the
allegations against Rockaway. And does the findings on the
sanction and statute of limitations represent a denial of due
process or gross abuse by failing to read the complaint.
6. Since the complaint alleges equitable tolling, fraudulent
concealment, and a continuing violation of federal law, was it a
gross abuse of discretion for the appellate court to affirm the bar
of limitations without reading, and reviewing the allegations as
they apply to these doctrines.
7. Does law of the case bar a district court from modifying
the claims listed in the 1995 opinion since they were affirmed.
And can appellant rely on that affirmation to raise claims nine and
ten since they are not in that opinion, and are based on a different
nucleus of facts.
8. If law of the case precludes reexamination of issues
decided on appeal, was appe!lant entitled to file his action because
of the affirmed dismissal without prejudice. And does the sanction
represent an unconstitutional taking of appellant’s property, since
the claims it basis the sanction on are different from those in the
affirmed 1995 opinion that would constitute res judicata.
9. Since EPA admitted not having explicit CWA authority to
impose its grant condition, is EPA in continuing violation of
Supreme Court rulings that require explicit statutory authority,
and does that conduct support equitable tolling and a continuing
violation theory because its grant condition came after those
rulings. And did the appellate court deny due process by not
deciding this question, because it proves the allegations in the
complaint.
10. Did the district court abuse its discretion by not
converting the motion to dismiss into one for summary judgment
since equitable tolling, fraudulent concealment, and a continuing
violation theory are alleged in the complaint. If so, was the court
required to consider appellant’s motion for summary judgment
instead of dismissing it as moot.
11. Was appellant denied due process by affirming res
judicata on the 95 opinion because that error kept the panel from
reaching facts in the record that were pertinent to the appeal. Facts
that prove appellant’s action was timely, that the district court had
no power to find res judicata or impose a sanction contrary to the
affirmed order and opinion, and to avoid appellant’s law of the
case arguments.
12. If the Aug. 95 order is found to be valid, can it be res
judicata against the affirmed dismissal without prejudice, thus
allowing a court to find res judicata on an order that it could have
vacated before it was appealed. Moreover, would that allow a
lesser court to overrule the mandate in the affirmed dismissal, law
of the case rules, aad appellant’s right to file another action in
reliance of the affirmed dismissal without prejudice.
13. Did the appellate court have a duty to review the Aug. 95
order for a manifest injustice or lack of jurisdiction as requested
by appellant, and was it required to render a finding on that
request. Moreover, is that finding also essential to the proceedings
since its res judicata affirmation based on the 1995 opinion
overlooks the Aug. 95 order in a manner that creates the
impression that the district court never relied on that order for res
judicata.
14. Was EPA’s motion for clarification rendered moot by the
district court denial of reconsideration, and its failure to vacate the
May 1995 dismissal without prejudice.
15. If the panel didn’t err on the issues in this petition, would
it have to answer appellant’s question of law on EPA’s continuing
violation of the CWA.
Parties
The caption includes the names of all the parties.
Table of Contents
Official and Unofficial Opinions ...............::ccceceseseeeseseseseneeenenenenenens |
eels Te Fe AT III cvs viiecgsevevcsnresencninorescisenapemmnianonadyocesipencermaneinaetiony 2
Constitutional Provisions and Statutes Involved ................:00++0 3
Dereorntt OF Bae CRIT insist csisss scecesscnsieceeceinnsssacessccovanastcecansesiseoessbvoes 3
I - Appellate Court Erred on Res Judicata..............:cseseeeseeseen 9
II - Gross Abuse by Both Coutts................sscccssssesseresessseeeeessesensness 10
III - Neither Court Read the Complaint ................:cc:ccccecesseeeeeeeeeee 17
IV — Denying Due Process by Avoiding a Question of Law......22
V - Conduct That Shocks the Conscience ............:cc::cccseeeeeeeeees 24
VI - Denying Rehearing Constitutes a Denial of Due Process ...26
COINCLUTSIOING. 0. iscsicscssversnssseivissesstassssnciessensaveveascnsevenatsndeateconeenatey 27
Table of Authorities
Cases
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855 (C.A.3 1994) oo. cccccccccccssseeseees 17
Ariz. v. Calif., 460 U.S. 605, 618 (1983).......4, 9, 10, 11, 12, 14, 16, 24
Bailey v. Glover, 88 U.S. 342, 349-50 (1875); .o....cccccccccescecceceecreeees 7,19
Bd. of Regents v. Roth, 408 U.S. 564, 576 (1971) ..cccccccccscssscccssosess 5, 15
Bd. of Tr. v. Centra, 983 F. 2d 495, 504 (3% Cir.1992).....ccccccccccsccsssosse. 9
Bowen v. Mass., 487 U.S. 879, 892 (1988) ..o.....ccccccccecccsccesescsscssceeeeesees 6
Brenner v. Local 514, 927 F.2d 1283, 1295 (3 Cir.1991 ........0.cc00000-. 21
Bridge v. U.S. Parole Com'n, 981 F.2d 97, 102 (3rd Cir.1992) .......... 14
Briggs v. Pa. R. Co., 334 U.S. 304, 306 (1948) ......ccccccccccccsssesececeeeees 6,9
Bouman w. Wine, 346 U7:5. BAG CIOS oon iiiiisicsccssevcs cs cciccssssscscceesees, 19
Casey v. Plan. Parent., 14 F.3d 848, 856 (3™ Cir. 1994)........ 6, 9, 10, 15
Chev. U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138 (C.A.5 1993) .15
Conly v. Gibson, 355 U.S. 41, 45-46 (1957) ..o.ccccccccccccsceseseeseceseseeeeeee 17
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).......... 9,14
SOV ER , PRIN, DO MI, BO CIOS OD iscsi icscevechcevscsebincs Lacie pekdcnsan ts, 14
Emsheimer v. City of New Orleans, 186 U.S. 33 (1902) .....cccccccecccsseee. 5
Golden Gate Tr. Corp. v. L.A., 493 U.S. 103, 112 (1989) oo... 22
Griffin v. Mich. Dept. of Correct., 5 F.3d 186, 190 (6™.Cir.)........00... 14
Hanna v. U.S.V.A. Hosp., 514 F.2d 1092, 1094 (3d.Cir.1975). .......... 20
Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 245 (1943)... 10
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ..........cccc000-. .20
Irwin v. Dept. of V.A., 498 U.S. 89, 100 (1990).............. 5, 6, 12, 15, 20
Juidice v. Vail , 430 U.S. 327, 331-332 (1977).......cccccccscssesceseseseceecees 1]
Leone v. Aetna Cas. & Surety Co., 599 F.2d 566, 567 (3 Cir. 1979). 17
Liddell v. Missouri, 731 F.2d 1294, 1305 (8".Cir.1983). ). ...ccccccccs00.-. 1]
Little Earth of United Tribes v. Dept. of Housing,
ee eae Sek, BOE Or i i ee 14
Lony v. E.I. DuPont de Nemours & Co.,
ae Sean ey Ee CI ats WI OP aia sissicriesssvoadesiiccincdocsancacmccauvearnncs 19
Maryland Cas. Co. v. Jones, 279 U.S. 792, 796 (1929) .o.....ccecccccceeeeee. 21
Mitchell v. Maurer, 293 U.S. 237, 244 (1934) .....o.ccccccccesseeceecceeceeeceee 11
Montana v. U.S., 440 U.S. 147, 153-4 (1979) ooocccccccccccccesecsceeeseeeees 14
Nat. Ass'n. of Metal Fin. v. E.P.A., 719 F.2d 624, 638 (3d.Cir. 1983) .22
Pennhurst St. S&H v. Halderman, 451 U.S. 1, 17 (1981) ..0.0......0... 7,21
Piedmont & N. Ry. Co. v. U.S., 280 U.S. 469 (1930)......ccccceccseceeeee. 13
Pioneer Invest. Svs. v. Brunswick Assoc. Ltd., 507 U.S. 380 (1993) ..25
Ricketts v. Adamson, 483 U.S. 1 (1987) ..........ccccccccccsssscescecscecececeee. 9,14
Robinson & Dalton, 107 F.3d 1018, 1022 (3d.Cir.1997) 0.0... cceceeee. 20
Table of Authorities
Cases
Shanty Town Ass. Ltd. v. E.P.A., 843 F.2d 782, 789 (4" Cir.1988)7, 22
St. of NJ Dept. of Ed. V. Hustedler, 662 F.2d 208, 214 (3 Cir.1981) 22
Taylor v. Freeland & Kronz, 503 U.S. 638 (1992).........ccccceeeeeeneeeenes 7
U.S. v. Camou, 184 U.S. 572 (1902). ...........ccccccceseeee sabia ciel. PEARS. 4
OF We SE re CFs Bias BF ee scttiicacertinsasctssreveasvinds toe 58
U.S. v. Gaubert, 499 U.S. 315, 327 (1991) ...... ccc eeeeeeeeeeeseneee 4,5,17
U.S. v. Glaxo Group Lad., 410 U.S. 52 (1973).......00.:.c200ssrcccesseneseeerees 13
U.S. v. Lehigh Val R Co., 220 U.S. 257 (1911)... eeeeeeeeeeeees hs ky
U.S. v. Minicone, 26 F.3d 297, 300 (C.A.2) .........:ccccccesssseeeesseeeeeeee Dy 14
U.S. v. Salerno, 481 U.S. 739, 746 (1987). ..........c:cccccssseceesreeessreeresrne dd
U.S. v. Stanley, 483 U.S. 669, 674 (1987) .......ccccccccecesereerseeeenens 12, 13
U.S. v. Uccio, 940 F.2d 753, 757 (2d Cir. 1991) ...........cccccsssesssssseeeees 17
U.S., Etc. v. Comm. Science Tech., 574 F.2d 1292, 1296 (1978) ....... 18
Univ. of Texas v. Camenisch, 451 U.S. 390, 399 (1981)... an
Waley v. Johnston, 316 U.S. 101 (1942).......cccccccsseereeeeeseeeeneeneeeeeeees 13
Statutes
Be se PE A Bigin iebdockivenri viet sdeckantits Shsthuatbibs deeahebdopaiemncettiasteeisenatt 12
Sa a cain nlibalinas ave hannieakabiowineninghesnaeniee 8
Rules
Regulations
vil
Official and Unofficial Opinions
Exh. Page Date Subject
A l Apr. 23, 1998 Denial of Petition for Rehearing
B 2-3 Feb. 26, 1998 Appellate Court Judgment
> 4-6 Feb. 26, 1998 Appellate Opinion
D 8-26 Aug. 12,1997 District Court Opinion/Order
7 Oct. 7, 1996 Denial of Petition for Certiorari
E 27 May 13, 1996 Denial of Petition for Rehearing
F 28 Mar. 26, 1996 Affirmation of Orders
G 29-31 Aug. 24,1995 Partial summary judgment
H 32-34 June 19,1995 Order on Reargument
I 35-36 May 11,1995 Dismissal without prejudice.
J 37-43 Mar. 27,1995 District Court opinion
(A, p.12) — A designates the Exhibit letter, p. indicates the page
on which the statement referred to can be found. The page
numbers of the exhibits are sequentially numbered from | to the
last page of the last exhibit, in order to provide precise locations.
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(i)
(ii)
(iv)
(v)
Basis for Jurisdiction
Feb. 26, 1998 Judgement of the Third Circuit (Exh. B).
Feb. 26, 1998 Appellate Opinion (Exh. C).
Aug. 12, 1997 District court opinion and order (Exh. D)
Apr. 23, 1998 Denial of Rehearing Petition (Exh. A).
This Court’s jurisdiction is invoked pursuant to 28 U.S.C.
5 1254(1) By writ of certiorari granted upon the petition
of any party to any civil or criminal case, before or after
rendition of judgment or decree.
Petitioner, referred to as (“appellant”), has served a copy
of this petition on the Solicitor General of the U.S.
pursuant to Rule 29. 4. (a) of this court.
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Constitutional Provisions and Statutes Involved
This case was dismissed on a motion for failure to state a
claim. Therefore, the merits were not reached.
Statement of the Case
Complainant seeks money damages for a civil rights
conspiracy, violations of CWA, and a violation of a Title VI
regulation. EPA denied appellant a federal benefit by imposing a
grant condition not authorized by statute in violation of Supreme
Court rulings. This case on multiple claims was dismissed without
prejudice on May 11, 1995 (Exh, I). That order was affirmed on
review (Exh. F). Appellant filed this action in reliance of the
affirmed dismissal without prejudice, only to have it dismissed on
res judicata and statute of limitations grounds.
District court dismissed appellant’s complaint on 12 issues.
Appellant’s brief reduced that to three (3) issues, which result
from misstated facts in the district court opinion and an appellate
error. Two issues stem from the appellate court’s failure to read
the complaint as the result of prejudicial remarks. The third results
from panel erroneously affirming res judicata based on the 1995
opinion, which overlooks the May 11, 1995 dismissal without
3/27
prejudice (Exh. I) that was affirmed (Exh. F). Moreover, the
district court relied on its Aug. 95 order for res judicata, not the
March 95 opinion. Both courts also disregarded appellant’s
property interest in the affirmed dismissal and took his property
by imposing a sanction in violation of law of the case.
Additional pertinent facts are as follows:
l. The panel overlooked the May 1995 order (Exh. F),
which incorporates the Mar. 1995 opinion (Exh. J) by necessary
implication. Arizona v. Cal., 460 U.S. 605, 609 (1983).
2. Appellate panel errs by affirming res judicata (Exh.
C) based on the 1995 opinion (Exh. J). That opinion resulted in
the May 11, 1995 order that dismissed appellant’s claims without
prejudice (Exh. I). That order was affirmed on review (Exh. F),.
Hence, the 1995 opinion is subject to the law of the case, which
the panel overrides by not honoring the decision of last appellate
review (Exh. F). Arizona v. Cal.. 460 U.S. 605, n.8 (1983), U.S.
v. Camou, 184 U.S. 572 (1902).
3. The 1995 opinion reviewed by the appellate court
listed the claims from the state case (J, p.39). Since cleims nine
and ten are not in that list (K, p.56-57), the imposition of the
sanction and the panel’s affirmation proves it did not read the
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complaint. U.S. v. Gaubert, 499 U.S. 315, 327 (1991). Moreover,
the district court was barred from modifying affirmed orders. U.S.
v. Minicone, 26 F.3d 297, 300 (C.A.2)
4. Both courts finds the statute of limitations has run,
which overlooks allegations of equitable tolling, fraudulent
concealment and a continuing violation theory in the complaint,
further proving they did not read the complaint (K, p.56). U.S. v.
Gaubert, 499 U.S. 315, 327 (1991).
5. By sua sponte overriding the law of the case, the
appellate panel violated stare decisis. Irwin vy. Dept. of V.A., 498
U.S. 89, 100 (1990). (stare decisis demands an attempt to
reconcile prior decisions rather than overruling them).
6. The panel also denied appellant his constitutionally
protected property interest in the affirmed dismissal without
prejudice. Bd. of Regents _v. Roth, 408 U.S. 564, 576 (1971); U.S.
v. G.M.C., 323 U.S. 373, 378 (1945) (Property rights in a physical
thing have been described as the rights "to possess, use and
dispose of it."); Emsheimer v. City of New Orleans, 186 U.S. 33,
48 (1902) (dismissed without prejudice, these claims, 'since
acquired and now held and owned by’ complainant).
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7. Appellate panel finds appellant is re-filing an APA claim,
though money claims are not subject to review under the APA.
Bowen v. Mass., 487 U.S. 879, 892 (1988).
8. The panel's error results in its avoiding facts in the 1997
opinion/order, which shows the district court lacked jurisdiction to
render its Aug. 1995 order. The district court relied on the Aug. 95
order in support of res judicata, though it has no power to deviate
from the mandated issues (Exh. D, p. 13-14). Briggs v. Pa. R. Co..
334 U.S. 304, 306 (1948); Casey v. Plan. Parenthood. 14 F.3d
848, 856 (3 Cir. 1994).
9. Failure to read the complaint keeps the courts from having
to recognize the allegations against Rockaway in this case are
linked to EPA’s violations, proving appellant was not aware of
EPA’s violations during the state case in late 1993. So, late
discovery of EPA’s violations makes appellant’s complaint C.A.
94-338 filed on Jan. 24, 1994 timely against EPA.
10. Appellant’s current complaint is subject to equitable
tolling because appellant actively pursued his judicial remedies.
Irwin _v. Dept. of Veteran Affairs, 498 U.S. 89. 95-6 (1990)
(Equitable tolling applies against government, and treats new
complaint as timely, if the former is filed before limitations runs).
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11. EPA admitted to the 4 th. Circuit that it did not have
explicit authority for its grant condition. Shanty Town Assoc. Ltd.
v. E.P.A., 843 F.2d 782, 789 (4™ Cir.1988) (This case was argued
in a motion for summary judgment and in appellant’s question of
law to the Third Circuit).
12. EPA involved the NJDEP, RVRSA, and Rockaway to
fraudulently conceal the fact that it knew it did not have explicit
statutory authority and that it was violating Supreme Court rulings
when it imposed its grant condition in 1983. Pennhurst St. S&H v.
Halderman, 451 U.S. 1, 17 (1981); Univ. of Texas v. Camenisch,
451 U.S. 390, 399 (1981).
13. In support of fraudulent concealment, exhibit B (p. 76) to
complaint, item 6. - Strategy and Timetable, shows EPA
conspired with NJDEP to have them deny grant waivers.
Appellant could not be aware of this conspiracy until EPA filed
this exhibit in the former federal case.
14. EPA concealed the fact that it conspired with the NJDEP
to deny appellant’s class due process and equal treatment since it
lacked statutory authority. Bailey v. Glover, 88-U.S. 342, 349-50
(1875); Taylor v. Freeland & Kronz, 503 U.S. 638 (1992).
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15. Exh. A to comp. (p.67) shows EPA knew its grant
condition prevents building a septic system, thus denying all
practical use of wetland lots in furtherance of its illegal conduct.
16. NJDEP recommended denial of appellant’s waiver
request (Exh. E to comp.) after appellant received an exemption
from the N.J. Wetlands Act (Exh. D to comp.), proving it acted
without jurisdiction in support of EPA’s conspiracy.
17. Exh. C to complaint adopts Region II actions as policy,
making Administrator responsible for the region II conspiracy,
and the illegal grant condition.
18. Denial of reconsideration (Exh. H) found no error to
justify a rehearing, thus declining jurisdiction to grant partial
summary judgement in Aug. 1995.
19. Aug. 24, 1995 order repeats the dismissal without
prejudice proving there was no intent to amend the May order to
regain jurisdiction for partial summary judgment (G, p.30).
20. EPA’s 1995 motion for partial summary judgment was
moot since APA review was time barred (D, p.13).
21. Panel was given all the orders, which should have resulted
in the review of the overlooked affirmed dismissal without
prejudice, and appellant’s law of the case arguments.
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ARGUMENT |
Appellate Court Erred on Res Judicata
Res judicata gives dispositive affect to a prior judgment. Bd.
of Tr. v. Centra, 983 F. 2d 495, 504 (3™ Cir.1992). Whereas, a
dismissal without prejudice allows a plaintiff to file another
action Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990); Ricketts vy. Adamson, 483 U.S. | (1987). Hence, the
appellate court erred as a matter of law by affirming res judicata
based on the Mar. 1995 opinion (C, p.4-5) since that opinion
resulted in the overlooked May 11, 1995 order that dismissed
appellant’s claims without prejudice (Exh. | & D). That order was
affirmed, which requires the panel to honor the decision of that
court (Exh. F). Arizona vy. Cal., 460 U.S. 605, n.8 (1983).
The orders show the district court based res judicata on its
Aug. 95 order (Exh. G), not its 1995 opinion. By deliberately
erring on the 1995 opinion, the panel avoids having to find the
district court had no power or authority to deviate from the
mandated dismissal without prejudice and listed former claims
(Exh. F). Briggs v. Pa. R. Co., 334 U.S. 304, 306 (1948); Casey v.
Plan. Parenthood, 14 F.3d 848, 856 (3" Cir. 1994). So, the
foregoing conduct denied appellant due process in three ways.
9/27
ARGUMENT II
Gross Abuse by Both Courts on Law of the Case
Appellant’s brief argued law of the case and that the Aug. 24,
1995 order constituted a manifest injustice. Appellant asked that
EPA be denied the benefit of that order. Hazel-Atlas Co. v.
Hartford Co., 322 U.S. 238, 245 (1943). The appellate court ended
by sua sponte overruling law of the case and stare decisis.
Appellate Court Overrides Law of the Case
The panel finds, “Fernandes has litigated the 1989 denial of
his application for a waiver, as shown in the 1995 opinion of
the district court. He lost on the merits, and cannot continue
to challenge this occurrence by adding new parties and
refiling the action.” The panel errs since the 1995 opinion
resulted in a dismissal without prejudice (Exh. 1), making that
order law of the case when it was affirmed (Exh. F). Ariz. v.
Calif., 460 U.S. 605, 618 (1983)(a decided rule of law should
continue to govern the same issue in the same case). And, in a
closely related case. Casey v. Planned Parenthood, 14 F.3d 848,
856 v.11 3" Cir.1994). The doctrine prevents relitigation of
settled issues in a case, thus protecting the settled expectations of
10/27
parties, ensuring uniformity of decisions, and promoting judicial
efficiency. Montana v. U.S., 440 U.S. 147, 153-4 (1979). The
panel sua sponte affirmed res judicata based on the Mar. 95
opinion, which overlooks the affirmed May 95 order. Except, an
appellate court can only reconsider a previously decided issue if
substantially different evidence is introduced or the decision is
clearly erroneous and works a manifest injustice. Arizona v.
California, 460 U.S. 605, n.8 (1983) Neglecting an order violates
the fundamental purpose of the law of the case. Liddell _v.
Missouri, 731 F.2d 1294, 1305 (8".Cir.1983). The panel neglected
orders, which avoided its duty to sua sponte recognize when a
district court lacks jurisdiction. Mitchell v. Maurer, 293 U.S. 237,
244 (1934). See Juidice v. Vail , 430 U.S. 327, 331-332 (1977).
Order in Support of Res Judicata Should Have Been Vacated
In its review of the March 27, 1995 oral opinion, the current
opinion states (D, p.13), “It also found the challenge to the EPA
grant condition time-barred by a six year statute of limitations
imposed by the APA.” The district court then states (D, p.14),
“By Letter Order dated August 24, 1995, the Court granted
summary judgment in favor of the United States, finding that
the EPA had not acted arbitrarily and capriciously when it
denied Fernandes’s waiver request.” The opinion omits the
word “partial”, and fails to mention its Aug. order was based on
APA 5 U.S.C. 706(2)(A) (G, p.30-31). So, the APA bar that
resulted in the dismissal without prejudice bars the Aug. 24, 1995
order. Hence, the panel’s erroneous ruling on the 95 opinion kept
it from reaching the fact that the district court lacked jurisdiction
to render its Aug. 95 order, thus breaching that duty, denying due
process, and violating stare decisis. Irwin vy. Dept. of V.A., 498
U.S. 89, 100 (1990) (stare decisis demands an attempt to reconcile
prior decisions rather than overruling them).
The Aug. 95 order constituted a manifest injustice since the
May order was never vacated to regain jurisdiction. US. _v.
Stanley, 483 U.S. 669, 674 (1987). So, the court clearly lacked
jurisdiction to grant partial summary judgment on Aug. 24, 1995
(G, p.31). Waley v. Johnston, 316 U.S. 101, 104-5 (1942);
Piedmont & N. Ry. Co. v. U.S., 280 U.S. 469, 476 (1930)(res
judicata does not apply when the court lacked jurisdiction). The
August order also reaffirms the dismissal without prejudice
proving no change was intended (G, p.30). In its denial of
reconsideration, the court also reaffirmed the dismissal without
12/27
prejudice, and expressly rejected jurisdiction since no error was
found (H. p.33). So, EPA’s motion for clarification was moot.
Even if the Aug. order were valid it would bar another APA
claim, not the damage claims that were affirmed. Arizona v.
California, 460 U.S. 605, n.7 (1983) (“A judgment may be final in
a res judicata sense as to a part of an action although the litigation
continues as to the rest”).
The foregoing supports the inference that the court rendered
its Aug. 95 order without jurisdiction, so it could dismiss this
action on res judicata grounds. Misstated facts in the 97 opinion,
and a sanction for claims not listed in the 95 opinion, supports this
inference. This conduct is a gross abuse of discretion that requires
reversal. U.S. v. Glaxo Group Ltd., 410 U.S. 52, 64 (1973); US.
v. Lehigh Val R Co., 220 U.S. 257, 271 (1911).
Panel Acted Arbirarily to Avoid Law of the Case Arguments
The panel realized it could not affirm res judicata based on the
Aug. 95 order, since the court lacked jurisdiction by not vacating
the May 95 order. U.S. v. Stanley, 483 U.S. 669, 674 (1987). It
also realized, defendants did not appeal the May 95 order or the
March 95 opinion, thus waiving their right to challenge either in
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this case. Montana v. U.S., 440 U.S. 147, 153-4 (1979); Bridge v.
U.S. Parole Com’n, 981 F.2d 97, 102 (3 Cir.1992); Griffin v.
Mich. Dept. of Correct., 5 F.3d 186, 190 (6".Cir.); Little Earth of
United Tribes v. Dept. of Housing, 807 F.2d 1433, 1441
(8".Cir.1986). So it avoided; these facts, the affirmed May 95
order, and appellant’s law of the case arguments by arbitrarily
affirming res judicata based on the March 1995 opinion.
The record shows that the May 95 order (Exh. 1)) dismissed
appellant’s claims without prejudice. Appellant relied on that
order as providing him with the right to file another action. Cooter
& Gell v. Hartmax Corp., 110 S.Ct. 2447, 2456, 2460 (1990);
Ricketts v. Adamson, 483 U.S. | (1987); California v. Texas, 437
U.S. 601 (1978). The May 95 order was affirmed by the appellate
court (F, p.28), making it law of the case. Arizona v. California,
460 U.S. 605, 618 (1983) (Dictum); Davis v. O'Hara, 266 U.S.
314 (1924). That affirmation bars the district court from now
reconsidering the dismissal without prejudice, and from amending
the list of claims subject to res judicata. U.S. v. Minicone, 26 F.3d
297, 300 (C.A.2); Chevron U.S.A., Inc. v. Traillour Oil Co., 987
F.2d 1138, 1150 (C.A.5 1993). It also bars the appellate court
from reconsidering its prior ruling, because no new evidence,
14/27
rsapnnial
intervening change in law, or error was brought to the panel’s
attention. Jd. @ 300; id. @ 1150. It limits the court to “issues not
expressly or implicitly disposed of by the appellate decision.”
Casey v. Planned Parenthood, 14 F.3d 848, 856 (3 Cir.1994)
(court had no power to deviate from appellate mandate).
The panel avoided the law of the case arguments by making it
appear that the Merch 95 opinion ended the case, and that district
court’s res judicata ruling was based on that opinion, which
arbitrarily disregards the orders presented by appellant in his brief.
Moreover, the panel cited no facts or authority that would suggest
it was correcting any error, it simply misstates facts to create a
false impression. This conduct overrules law of the case, and stare
decisis. Irwin v. Dept. of V.A., 498 U.S. 89, 100 (1990).
Disregarding the affirmed May 95 order also overrules the
Supreme Court case cited on a dismissal without prejudice, which
grants the right to file a new action. The panel’s conduct denied
appellant due process, and his constitutionally protected property
interest in the dismissal without prejudice that was affirmed on
appeal, which remains uncontested and unchanged (Exh. F). Bd.
of Regents v. Roth, 408 U.S. 564, 576 (1971); U.S. v. GM.C.,
323 U.S. 373, 378 (1945).
15/27
District Court Violated Law of the Case
In the 95 opinion reviewed by the panel (J, p.39), the district
court listed the claims from the state action that would constitute
res judicata; (1) Selling property in violation of N.J.S.A. 40:A12-
13, (2) Policy and custom to sell worthless lots in violation of 42
USC 1983, (3) Township Engineer conspired with Council to sell
worthless lots, (4) Council conspired to sell worthless lots, (5)
Conspiracy to conceal grant condition, (6) Denying requests to
conceal conspiracy to sell worthless lots, (7) Engineer harassed
plaintiff, (8) Engineer discriminated upon plaintiff; (9) Fraud by
selling lots "as is."
Law of the case bars a court from “reconsidering or
modifying any of its prior decisions that have been ruled on by
the court of appeals,” U.S. v. Uccio, 940 F.2d 753, 757 (2d
Cir.1991). Despite this rule, the district court found claims nine
and ten against Rockaway barred by res judicata, though unrelated
to the claims outlined in the 1995 opinion (J, p.39). This violates
the common-law precept that an issue once determined by a
competent court is conclusive. Arizona v. Cal., 460 U.S. 605, 619
(1983) This arbitrary conduct by the district court is consistent
with its rendering the Aug. 95 order without jurisdiction.
16/27
ARGUMENT Iil
Neither Court Read the Complaint
Appellant was denied due process because the appellate court
did not read the complaint or accept its allegations as true. So, its
affirmation is reversible gross abuse of discretion. U.S. v. Lehigh
Val R Co., 220 U.S. 257 (1911).
When a motion to dismiss is based on the statute of
limitations bar “[t]he question to be answered thus becomes
whether the assertions of the complaint, given the required broad
sweep would permit adduction of proofs that would provide a
recognized legal basis for avoiding the statutory bar.” Leone v.
Aetna Cas. & Surety Co., 599 F.2d 566, 567 (3 Cir.1979). The
panel is required to accept facts alleged in the complaint and
attached exhibits, as true. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855
(C.A.3 1994); U.S. v. Gaubert, 499 U.S. 315, 327 (1991).
Allegations of pro se complaint are held to a less stringent
standard. Conly v. Gibson, 355 U.S. 41, 45-46 (1957).
District Court Misleads the Panel
The district court creates the impression that it read the
allegations against Rockaway, as follows; (D, p.23), “No matter
17/27
how plaintiff restates or restyles his bases for relief, the issues
and the claims are based upon the same facts and have been
resolved against him.” This statement prejudiced the panel,
causing it to treat the matter summarily, instead of reading and
accepting the allegations in the complaint as true.
Had the panel not overlooked the affirmed dismissal without
prejudice, and had it read appellant’s allegation of equitable
tolling, it would have answered appellant’s question of law,
proving EPA to be in continuing violation of law. U.S.. Etc. v.
Comm. Science Tech., 574 F.2d 1292, 1296 (1978).
The Panel Erred Several Ways by Affirming the Sanction
Appellant alleged (K, p.56-57); “CLAIM NINE -
Rockaway Township's Ordinance 54-IOOL Denied a Federal
Benefit.” and “CLAIM TEN - Rockaway Township IHegally
Charged an Assessment.” The appellate court found (C, p.5);
“He litigated the merits of his 1985 purchase of the plot of
land in New Jersey state court. As the 1993 opinion of the New
Jersey Appellate Division shows, Fernandes has actually
litigated his claims on the merits in the state courts. He cannot
sue once more concerning this same transaction or
18/27
4
USAR Nand aintes
occurrence.” Since a challenge to an ordinance and illegal
assessment has nothing to do with the 1985 purchase, or any issue
in the 1995 opinion, proves the panel affirmed the sanction
without reading the complaint, in reliance of the court’s
misleading statement, thus breaching its duty. Since appellant's
allegations are based on a different nucleus of facts, the sanction
must be rescinded as inconsistent with the panel’s basis for
affirmation, which were claims related to the 1985 purchase.
By failing to read the complaint, there is no way the panel
could determine if the district court abused its discretion or not.
Lony v. E.1. DuPont de Nemours & Co., 935 F.2d 604, 615 (3d
Cir. 1991). Instead, the panel accepted the court’s conclusions at
face value, which proves both courts failed to read the complaint
in order to determine if appellant’s allegations actually constituted
res judicata. Jd @ 614. Moreover, the courts violate law of the
case by arbitrarily finding res judicata on issues not in the 95
opinion. So, both courts are guilty of a gross error amounting to a
denial of due process that deprives both courts of jurisdiction to
render and affirm this judgment. Burns v. Wilson, 346 U.S. 844
(1953). So, the sanction takes appellant’s property in violation of
due process. U.S. v. G.M.C., 323 U.S. 373, 378 (1945).
19/27
The sanction was imposed to avoid finding the allegations
against Rockaway flowed from EPA’s misconduct, not the claims
in the 95 opinion, proving appellant was unaware of his claims
against the EPA during the state case. Moreover, the sanction
avoids a thorough review of the Aug. 12, 1997 opinion (D, p.12),
which contains facts proving appellant’s complaint was timely
based on late discovery. That opinion states, the district court
found appellant’s petition for certification to the N.J. Supreme
Court was denied on May 13, 1993. The Supreme Court denied
Certiorari on Oct. 4, 1993, and appellant filed his complaint on
Jan. 24, 12°4, which makes it timely based on belated discovery,
since appellant alleged “equitable tolling, fraudulent
concealment and continuing violation.” Bailey v. Glover. 88
U.S. 342, 349-50 (1875).
Denial of Due Process on Statute of Limitations
The appellate panel’s failure to read the complaint is further
evinced by its failure to determine if allegations of any tolling
doctrines existed and could be supported in the complaint. Havens
Realty Corp. v. Coleman, 455 U.S. 363 (1982).
20/27
The appellate court erred by not reading the allegation (K,
p.56); “The statute of limitations is not a bar to this action. .
the doctrines of estoppel, equitable tolling, fraudulent
concealment and continuing violation also apply to all the
defendants.” This allegation appears in the complaint, so EPA’s
statute of limitations defense never appeared on the face of the
complaint. Hanna _v. U.S.V.A. Hosp., 514 F.2d 1092, 1094
(3d.Cir.1975). The district court deliberately abused its discretion
by avoiding this allegation so it didn’t have to convert EPA’s
motion into one for summary judgment, which would require
consideration of appellant’s motion for summary judgment,
instead of dismissing it as moot (D, p.26). Robinson & Dalton,
107 F.3d 1018, 1022 (3d.Cir.1997). The court’s refusal to
consider appellant’s motion for summary judgment resulted in his
including the pertinent facts in a question of law that was
presented to the appellate court.
Since appellant’s former complaint was timely based on late
discovery, equitable tolling requires the current complaint be
treated as timely. Irwin v. Dept. of Veteran Affairs, 498 U.S. 89,
95-96 (1990). The facts are in the record, but were overlooked as
a result of the error on the sanction.
ARGUMENT IV
Denying Due Process by Avoiding a Question of Law
The appellate panel erred as a matter of fact and law by
finding res judicata on the same opinion that resulted in the
affirmed dismissal without prejudice, and by finding the statute of
limitations had run by not reading appellant’s equitable tolling
allegation. The panel acted arbitrarily to avoid appellant’s
question of law. Maryland Cas. Co. v. Jones, 279 U.S. 792, 796
(1929) (question of law is reviewable, like a motion by plaintiff).
Both courts used judicial tactics to avoid a motion for
summary judgment and a question of law supported by the fact
that EPA’s grant condition continues to violate the CWA since
Feb. 9, 1984 when RVRSA accepted that condition. Brenner v.
Local 514, 927 F.2d 1283, 1295 (3 Cir.1991)(continuing
violation is accepted federal doctrine). Claim Six, alleges
Supreme Court and third circuit required explicit authority, and
Claim Eight alleges a violation of CWA (K, p.52-53). EPA’s grant
condition was imposed three years after rulings that prohibit
EPA’s grant condition. Pennhurst St. S&H v. Halderman, 451
U.S. 1, 17 (1981); Univ. of Texas v. Camenisch, 451 U.S. 390,
399 (1981); St. of NJ Dept. of Ed. V. Hustedler, 662 F.2d 208,
22/27
A itil
, 4 a ee TY oe “ .
LA A CLA G ie SAAD PA ASS AS DROS til ev Let Wie EERIE 8 PA SAS MES BAe RE Sc
NOES Retews acs A Lue 1
214 (3™ Cir.1981) (“terms and conditions of a federal grant must
be set forth clearly and unambiguously in the statute authorizing
the grant.”’).
“EPA concedes that the FWPCA does not give it
authority to regulate sewer service directly.” Shanty Town
Assoc. Ltd. v. E.P.A., 843 F.2d 782, 789 (4" Cir.1988). By
admitting it lacked explicit statutory authority after it imposed its
grant condition disposes of any fact that would bar consideration
of a pure question of law. M..eover, the Administrator of the EPA
excluded residential properties from regulations on polluting
public treatment works 40 CFR § 403.1. Nat. Ass'n. of Metal Fin.
v. E.P.A., 719 F.2d 624, 638 (3d.Cir.1983) (Conduct admitting a
lack of authority over residential properties prior to imposing the
grant condition, proving a deliberate and continuing violation of
the CWA and owner’s property rights).
EPA's grant condition amount to a "violation of a federal
right that has been found to be implicit in a statute's language
and structure is as much a "direct violation" of a right as is
the violation of a right that is clearly set forth in the text of the
statute." Golden Gate Tr. Corp. vy. L.A., 493 U.S. 103, 112
(1989).
23/27
ARGUMENT V
Conduct That Shocks the Conscience
The facts clearly show that the appellate court did not read
appellant’s complaint though the standards of review require it be
read. This supports the inference of a policy that precludes reading
the primary document to a review of a dismissal for failure to state
a claim, or it proves the panel was prejudiced by the district
court’s misleading statement that these were the same claims that
it formerly dismissed.
Furthermore, the appellate court affirmed res judicata based
on the 95 opinion, which violates the law of the case by
disregarding the May 95 order (Exh 1) and the Appellate
affirmation of that order (Exh. F), which appellant provided. The
panel acted arbitrarily so it could avoid the record, two law of the
case arguments, and a question of law. Moreover, the panel fails
to cite one fact or authority that would even remotely suggest that
it was correcting some error by the former appellate court, thus
proving it overlooked these orders. Consequently, the arbitrary
affirmation of res judicata denied appellant due process.
There is a third and equally important issue to be considered
by this Court. That is the issue of a district court avoiding a
24/27
4
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summary judgment motion by “abusing its discretion” with
misstated findings, misleading facts, and unsupportable sanction.
Not to mention its failure to convert the motion to dismiss into
one for summary judgment by deliberately avoiding appellant’s
allegation of equitable tolling.
The policies of both courts have denied appellant due process.
Moreover, it encourages further violations by EPA because it now
thinks the courts are incompetent, or support agency violations in
order to conceal EPA’s misconduct from the public. It further
appears that the courts have no compunction about leaving the
public injured by illegal agency conduct, and by imposing
sanctions to deprive the public of even more property as an
oppressive act, and to punish appellant for attempting to correct
the misconduct of the EPA and Rockaway. The foregoing clearly
constitutes conduct that shocks the conscience. U.S. v. Salerno,
481 U.S. 739, 746 (1987).
25/27
ARGUMENT VI
Denying Rehearing Constitutes a Denial of Due Process
The Appellate Court’s denial of appellant’s petition for
rehearing is a refusal to comply with FRAP 40, which amounts to
a denial of due process. Appellant filed a petition for rehearing in
conformance with that section of FRAP 40 that states: “The
petition must state with particularity the points of law or fact
which in the opinion of the petitioner the court has overlooked
or misapprehended. . .”
Appellant’s petition for rehearing, stated: “Appellant’s
complaint alieged; fraudulent concealment, equitable tolling,
waiver and a continuing violation.” On the issue of the sanction,
appellant included copies of the overlooked documents in the
petition, and stated; “The panel overlooked these exhibits,
which proves its affirmation [of the sanction] is wrong and
unjust.” Denying a petition to refuse to reconsider factual errors
is to state these facts are not in the record, which is not true.
Pioneer Invest. Svs. v. Brunswick Assoc. Ltd., 507 U.S. 380
(1993) (Supreme Court is not obligated to accept findings when
they are not supported by the record).
26/27
CONCLUSIONS
Appellant filed a complaint to address the violations of the
EPA, only to be denied due process by the courts. This petition
clearly shows both courts erred in ways that supports the inference
of deliberate gross abuses aimed at disposing of a pro se litigant,
or possibly any litigant because of a predisposed inclination
toward federal agencies, regardless of their actions, which proves
a gross abuse by way of oppression.
When a district and appellate court willingly abuses their
discretion with judicial trickery, it reflects on this Court as the
supervisor of the lesser courts. It conveys the impression that the
law is what the courts will allow it to be by judicial trickery to
avoid facts and circumvents legal arguments, instead of based on a
forthright assessment of the facts and the-law.
Appellant filed this petition in order to correct these abuses,
and to determine if the courts are truly governed by law or merely
the perception of law created by artifice. I truly pray that you will
vindicate my belief that the conduct to this point is not is
indicative of the conduct to be expected in this Court, or accepted
by this Court, when it involves agency violations.
27/27
sahil ork ae al
a Ee a Se
Table of Exhibits
Exh. Page Date Subject
A Apr. 23, 1998 Denial of Petition for Rehearing
B 2-3 Feb. 26, 1998 Appellate Court Judgment
C 4-6 Feb. 26, 1998 Appellate Opinion
D 8-26 Aug. 12,1997 District Court Opinion/Order
7 Oct. +, 1996 Denial of Petition for Certiorari
E 27 May 13, 1996 Denial of Petition for Rehearing
F 28 Mar. 26, 1996 Affirmation of Orders
G 29-31 Aug. 24,1995 Order “partial summ. judgment”
H 32-34 June 19,1995 Order on Reargument
I 35-36 May 11,1995 Order dismissing without prej.
J 37-43 Mar. 27, 1995 District Court opinion
Complaint and Attached Exhibits
K
Q
Q.
44-64
65-69
70-76
77-78
79-81
82-83
84-85
Feb. 27, 1997
Apr. 23, 1979
May 25, 1979
July 11, 1980
Oct. 21, 1988
Apr. 1, 1989
May 5, 1989
Amended Complaint
EPA document
EPA document
EPA document
Wet.exemption
Recom. Denial
EPA letter
EXH.-A April 23, 1998 Denial of Petition for
Rehearing
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 97-5579
NELSON FERNANDES, Appellant
V.
EPA; ADMINISTRATOR OF THE EPA;
REGIONAL ADMINISTRATOR FOR REGION II;
COMMISSIONER OF NJDEP; ROCKAWAY TOWNSHIP
COUNCIL; ATTORNEY GENERAL, Appellee
(D.C. Civ. No. 96-cv-05791)
Present: BECKER, Chief Judge, SLOVITER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN,
NYGAARD,
ALITO, ROTH, McKEE, RENDELL and GARTH,” Circuit
Judges,
SUR PETITION FOR PANEL REHEARING
WITH SUGGESTION FOR REHEARING IN BANC
The petition for rehearing filed by appellant having been
submitted to the judges who participated in the decision of this
Court, and to all the other available circuit judges in active
service, and no judge who concurred in the decision having asked
for rehearing, and a majority of the circuit judges of the circuit in
regular active service not having voted for rehearing by the court
in banc, the petition for rehearing is DENIED.
BY THE COURT:
“s/BECKer”
Chief Circuit Judge
DATED: APR 23, 1998
EXH. - B Feb. 26, 1998 Appellate Court Judgment
IN THE UNITED STATES COURT OF APPEALS
NO. 97-5579
NELSON FERNANDES, Appellant
V.
EPA; ADMINISTRATOR OF THE EPA:
REGIONAL ADMINISTRATOR FOR REGION II:
COMMISSIONER OF NJDEP; ROCKAWAY TOWNSHIP
COUNCIL; ATTORNEY GENERAL
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 96-cv-05791)
District Judge: Honorable William H. Walls
Submitted Under Third Circuit LAR 34. l(a)
February 13, 1998
Before: BECKER, Chief Judge, ALITO and GARTH,
Circuit Judges.
(Filed Feb. 26 1998)
JUDGMENT
This case came on to be heard on the record from the
United States District Court for the District of New Jersey and
was submitted on February 13, 1998. On consideration whereof it
is now here
ORDERED AND ADJUDGED by this court that the order of the
district court of August 12, 1997 be and the same is hereby
affirmed.
2
Costs taxed against appellant.
ATTEST:
“s/P. Douglas Sisk”
Clerk
DATED: Feb. 26, 1998
~
A
EXH.-C Feb. 26, 1998 Appellate Opinion
NOT-FOR-PUBLICATION
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 97-5579
NELSON FERNANDES.
Appellant
V.
EPA; ADMINISTRATOR OF THE EPA:
REGIONAL ADMINISTRATOR FOR REGION II;
COMMISSIONER OF NJDEP; ROCKAWAY TOWNSHIP
COUNCIL; ATTORNEY GENERAL
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 96-cv-05791)
District Judge: Honorable William H. Walls
Submitted Under Third Circuit LAR 34. l(a)
February 13, 1998
Before: BECKER, Chief Judge, ALITO and GARTH,
Circuit Judges.
(Filed Feb. 26, 1998)
MEMORANDUM OPINION
BECKER, Chief Circuit Judge.
The order of the district court will be affirmed. As to the
merits of Fernandes’ claim, his claims are barred by res judicata.
3
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a
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a
ed
5
He litigated the merits of his 1985 purchase of the plot of land
in New Jersey state court. As the 1993 opinion of the New
Jersey Appellate Division shows, Fernandes has actually
litigated his claims on the merits in the state courts. He cannot
sue once more concerning this same transaction or occurrence.
See, e.g., Board of Trustees V. Centra, Inc., 983 F.2d 495, 504
(3d Cir. 1992). Similarly, Fernandes has litigated the 1989
denial of his application for a waiver, as shown in the 1995
opinion of the district court. He lost on the merits, and cannot
continue to challenge this occurrence by adding new parties
and refiling the action. Id. Further, Fernandes has filed this
action in 1997, between 8 and 12 years after the relevant
events. His actions are barred by the applicable statutes of
limitations.
As to the district court's Rule | 1 sanctions, we review for
abuse of discretion. Lony v. E.l. DuPont de Nemours & Co.. 935
F.2d 604, 615 (3d Cir. 1991). However, this standard may
incorporate other standards of review, for the Supreme Court has
indicated that a district court "would necessarily abuse its
discretion if it based its ruling on an erroneous view of the law or
on a clearly erroneous assessment of the evidence." Cooter & Gell
v. Harrmarx Corp., 496 U.S. 384, 405 (1990). Given the facts of
this case, the district court's sanctions are not an abuse of
discretion. Fernandes has been pursuing claims against Rockaway
for almost a full decade. He has appealed the clearly merited
dismissals of his claims all the way to the United States Supreme
Court twice, and yet still has come back for more. The district
court did not abuse its discretion in forcing Fernandes to pay a
modest amount of attorney's fees, and in enjoinnig him from
bringing even more suits arising from these same events. The
order of the district court wil] be affirmed.
TO THE CLERK:
Please file the foregoing opinion of the court.
BY THE COURT:
“S/ Becker”
Chief Circuit Judge
\ Cah
The Supreme Court denied a petition for Certiorari on October 7,
1996 that appellant was unable to find in order to present it in this
spot.
EXH.-—D August 12, 1997 District Court Opinion & Order
UNITED STATES DISTRICT COURT
District of New Jersey
Chambers of Martin Luther King Jr.
William H. walls 50 Walnut Street
District Judge Newark, New Jersey 07101
(201) 645-2564
(201) 645-6467 Fax
NOT FOR PUBLICATION
LETTER ORDER
ORIGINAL ON FILE WITH CLERK OF THE COURT
Nelson Fernandes
9 Fox Run
Denville, New Jersey 07834
Plaintiff pro se
Susan Handler-Menahem
Assistant United States Attorney
United States Attorney’s Office
District of New Jersey
970 Broad Street
Newark, New Jersey 07102
Attorney for Federal Defendants
Kim L. Simmons
Environment and Natural Resources Division
Environmental Defense Section
Department of Justice
P.0. Box 23986
Washington, DC 20026-3986
Attorney for Federal Defendants
Neca PRS ie EIS eM SCAN Ae! ntred “
MM gales Sept gioom.
Pts iar SOME id CASS Ness AMES RN Reon hewtic ty
James J. Higgins
Boyar, Higgins & Suozzo, P.A.
10 Park Place, Suite 415
Morristown, New Jersey 07960
Attorney for Defendant Rockaway
Township Town Council
Re: Fernandes V. EPA, et als. Civil No. 96-5791
Dear Counsel and Litigant:
For the fourth time in seven years, plaintiff Nelson Fernandes
(“Fernandes”) has brought suit against various parties for the 1989
denial of permission to connect his property in Rockaway
Township to the township sewer line. Defendants United States
Environmental Protection Agency (the EPA”), Administrator of
the EPA, Administrator of Region II of the EPA, and the Attorney
General of the United States (collectively, "the federal
defendants") move for dismissal of the Complaint. Defendant
Rockaway Township Town Council ("Rockaway") moves for
dismissal of the Complaint and also for sanctions against
Fernandes under Rule 11 of the Federal Rules of Civil Procedure.
Fernandes cross moves for summary judgment. Pursuant to Rule
78 of the Federal Rules of Civil Procedure, the Court decides this
matter on the basis of the written submissions of the parties.
Factual Background
On August 6, 1985, Rockaway Township held a public
sale of real property by auction. The terms of the public auction
were that the property was sold "as is" and that "no representations
of any kind are made by the Township of Rockaway as to the
Rockaway as to the condition, area, or boundaries of the property
herein relevant."
Lot 8 was one of the land parcels on which the public bid.
A portion of Lot 8 was covered by environmentally sensitive
freshwater wetlands. On September 21, 1985, plaintiff won
ownership of Lot 8 by bidding $10,000.00. Plaintiff had a title
search done at the time of purchase. On November 15, 1985,
plaintiff took title to Lot 8 by deed recorded with the Morris
County Clerk. Plaintiff later purchased Lot 9, which is adjacent to
Lot 8, at a tax sale. He planned to subdivide the two lots and
build a single family dwelling and hoped to connect the single
family home to the municipal sanitary sewer line that ran adjacent
to his lots. However, his application was rejected because of a
grant condition imposed by the federal government.
The Rockaway valley Regional Sewer Authority
("RVRSA") operates a sewer system in Morris County, New
Jersey. In 1983, the federal government gave RVRSA a grant to
fund in part a sanitary sewer system. According to Grant
Agreement No. C340389- 04-02, lots within an environmentally
sensitive area (such as wetlands) cannot be connected to federally
funded sewers without a written waiver from the EPA Regional
Administrator. The purpose of the condition is to protect the
surrounding wetlands. —-
Plaintiff's lots are two of approximately 140 lots in the
Township which were impacted by the EPA grant condition.
10
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aD NOS A:
In 1989, at Fernandes' request, the RVRSA submitted a
waiver application to the EPA for Lot 8. The Army Corps of
Engineers and the NJDEP determined that Lot 8 contained
wetlands areas. After reviewing the application, defendant New
Jersey Department of Environmenta! Protection ("NJDEP")
recommended that the waiver be denied and forwarded the
application and recommendation to the EPA. On May 5, 1989,
after reviewing the application and NJDEP's recommendation, the
EPA denied Fernandes' request for a waiver.
Procedural Background
On July 19, 1990, Fernandes filed an Amended Complaint
in the United States District Court for the District of New Jersey
against Rockaway Township Town Council and the Township
Engineer alleging that he was fraudulently induced into
purchasing the two lots without Rockaway disclosing a sewer use
ban imposed on those properties because of the EPA grant
condition. Fernandes v. Rockaway Township Town Council, Civ.
No. 90-0830 (MTB). On November 28, 1990, the Hon. Maryanne
Trump Barry, U.S.D.J., dismissed the case without prejudice for
failure to state a claim for violation of any constitutional right.
On December 4, 1990, Fernandes filed another action
against the same defendants in the Superior Court of New Jersey,
Law Division, Morris County. Fernandes v. Rockaway Township
Town Council, Docket No. MRS-L-5845-90. On July 10, 1991,
the court dismissed all but two counts of the complaint; the
1]
remaining two were dismissed on January 3, 1992. On January
22, 1993, the Appellate Division affirmed the dismissal of
Fernandes' state court complaint, and on March 15, 1993, the
New Jersey Supreme Court denied Fernandes' petition for
certification. Fernandes' motion for reconsideration from the
state supreme court was denied on May 11, 1993, and on
October 4, 1993, the United States Supreme Court denied
plaintiff's petition for a writ of certiorari.
Undaunted, Fernandes brought another suit in federal
court on January 24, 1994, which was assigned to the
undersigned. Fernandes v. Rockaway Township et al., Civ.
No. 94-338 (WHW). He asserted claims against the EPA, the
Regional Administrator, Rockaway Township Town Council and
Township Engineer, RVRSA, RVRSA|s Executive Director, the
law firm of Dorsey & Bell, and John Dorsey and Joseph Bell,
individually. The 1994 complaint, as amended, alleged a
conspiracy and other wrongdoing by all defendants relating to the
1984 EPA grant condition imposed pursuant to the Clean Water
Act, 33 U.S.C. §§ 1251 et seq. The complaint set forth thirty-
nine claims in all, including federal civil rights claims,
contract claims, takings claims, and challenges to agency
action under the Administrative Procedure Act ( "APA"),5
U.S.C. §§ 701 et seq.
The federal defendants moved for dismissal of the
Complaint on the basis of the doctrine of sovereign immunity,
4
4
4
;
failure to state a claim upon which relief could be granted, lack of
subject matter jurisdiction, and failure to comply with the statute
of limitations. The Rockaway defendants, including Dorsey &
Bell, John Dorsey, and Joseph Bell, moved for dismissal on res
judicata grounds, citing the state court suit which concluded in
their favor.
The Court heard oral argument on March 27, 1995 and
ruled that Fernandes’ claims against Rockaway Township, the
Town Council and Township Engineer were barred by res judicata
by virtue of the previous state court action against those parties.
The Court further ruled that the claims against Dorsey & Bell and
John Dorsey and Joseph Bell were also precluded by res judicata,
"identical issues hav[ing] been decided on prior adjudication."
With regard to the federal defendants, the Court noted
that sovereign immunity barred the claims. The Court refused
to find a waiver under the Federal Tort Claims Act ("FTCA"), 28
U.S.C. §§ 1346 (b), 2671-2680 because Fernandes had not
complied with the administrative claim requirement. It also
found the challenge to the EPA grant condition time-barred
by a six year statute of limitations imposed by the APA.
On May 11, 1995, this Court dismissed all of plaintiff's
claims against Rockaway, Rockaway's Township Engineer, the
law firm of Dorsey & Bell, John Dorsey and Joseph Bell,
individually, RVRSA, and RVRSA's Executive Director,
dismissed without prejudice all of plaintiff's claims against the
EPA and the Regional Administrator of Region II and denied
plaintiff's motion for partial summary judgment. On June 20,
1995, the court denied Fernandes's motion for reargument. By
Letter Order dated August 24, 1995, the Court granted
summary judgment in favor of the United States, finding that
the EPA had not acted arbitrarily and capriciously when it
denied Fernandes's waiver request.
Fernandes appealed the Court's rulings to the United
States Court of Appeals for the Third Circuit. The Third Circuit
affirmed the three orders by Judgment Order dated March 26,
1996. The United States Supreme Court denied certiorari on
October 7, 1996.
Not to be discouraged by this turn of events, on February
24, 1997, Fernandes filed the instant Complaint against
Rockaway, the EPA, the Regional Administrator, the Attorney
General of the United States, the EPA Administrator and the
Commissioner of the NJDEP. In his Amended Complaint,
Fernandes sets out twelve claims for relief arising from the denial
of the waiver, including denial of due process and equal treatment;
conspiracy by the EPA and NJDEP in violation of 42 U.S.C. §§
1983 and 1985; violations of his civil rights pursuant to 42 U.S.C.
§ 1983; a claim entitled "Third Circuit and Supreme Court
Limited EPA's Use of Grant Conditions;" violation of EPA
regulations and Title VI; failure to comply with the Clean Water
14
oe ena
56 pe 62 ee ABE RASTER SE SORA A eG i it lets ie eh
Act, 33 U.S.C. §§ 1251 et seq.; denial of federal benefits; illegally
charging an assessment; failure of the Attorney General to ~
perform her duty, and intentional infliction of emotional distress.
Fernandes seeks mandamus, declaration of the parties’ rights, and
millions of dollars in damages.
Analysis
I. Whether Claims Against the Federal Defendants Should
Be Dismissed.
The federal defendants move for dismissal of Fernandes’
Complaint on the grounds of res judicata, lack of subject matter
jurisdiction, failure to state a claim upon which relief may be
granted, and the applicable statutes of limitations. The Court has
considered all the arguments raised by Fernandes in opposition to
the motion and finds them to be without merit. Therefore,
dismissal is warranted.
The doctrine of res judicata refers to the "distinctive
effects of a judgment separately characterized as ‘claim preclusion’
and issue preclusion." 5 Charles A. Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice and Procedure § 4402, at 6
(1981). Issue preclusion is based upon the notion that "later
courts should honor the first actual decision of a matter that
15
has already been litigated." Burlington Northern R. v. Hyundai
Merchant Marine, 63 F.3d 1227, 1231 (3d Cir. 1995). "[0] nce an
issue is actually and necessarily determined by a court of _
competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action involving a
party to the prior litigation." Montana V. United States, 440 U.S.
147, 153 (1979). Issue preclusion is applied when "(1) the issue
sought to be precluded [is] the same as that involved in the prior
action; (2) that issue [was] actually litigated; (3) it [was]
determined by a final and valid judgment; and (4) the
determination [was] essential to the prior judgment." Burlington
Northern, 63 F.3d at 1232 (citations omitted)
Claim preclusion derives from the principle that "prior
judgments may preclude later litigation both as to matters that
have actually been litigated and decided and as to matters that
have never been litigated or decided." 5 Wright, Miller & Cooper,
supra § 4406, at 44. Application of the doctrine requires (1) a
final judgment on the merits in a prior suit involving; (2) the same
parties or their privities; and a (3) subsequent suit based on the
same cause of action. Board of Tr. of Trucking Emp. Pension
Fund v. Centra, 983 F.2d 495, 504 (3d Cir. 1992) (citattons
omitted). When deciding if claim preclusion bars the second
action, a court should consider, among other things, whether the
acts complained of and the demand for relief are the same (that is,
whether the wrong for which redress is sought is the same in both
actions), whether the theory of recovery is the same, and whether
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the material facts alleged are the same. United States V. Athlone
Indus.. Inc., 746 F.2d 977, 983 (3d Cir. 1984). A later claim may
be precluded even if different statutes or theories are cited by the
claimant. Id.
The 1994 suit before this Court culminated in a final
judgment on the merits. Essentially, Fernandes seeks the same
relief as he pursued before this Court in the 1994 complaint --
damages and a voiding of the denial of the waiver. The facts have
not changed in the meantime, and the parties remain the same.
Even though Fernandes has cobbled together different claims and
theories as alleged grounds for relief, this Court has already- held
that the EPA's denial of the grant waiver was not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with the law. - Such a conclusion necessarily includes a finding
that the decision io deny the grant waiver was not illegal and did
not violate any prevailing law or regulation.
Among the issues raised by Fernandes on his appeal to the
Third Circuit was whether "the EPA grant condition represent[ed]
a continuing violation by violating the holdings of Cape May
Greene [Inc. V. Warren, 698 F.2d 179 (3d Cir. 1983)], other case
law and regulations that preceded the grant condition." Reply Aff.
of James J. Higgins, Exh. G. In affirming the District Court, the
Court of Appeals implicitly concluded that there was no violation.
These holdings cannot be relitigated under the guises raised by
Fernandes in the present Complaint.
Even if res judicata did not preclude Fernandes’ claims,
Fernandes’ Complaint is deficient for several other reasons. The
17
barrier of sovereign immunity discussed by the Court in its
previous opinion has not been surmounted by Fernandes' filing of
an administrative claim under the Federal Tort Claims Act
because the applicable statute of limitations of two years has run.
See 28 U.S.C. § 2401(b); Zeleznik V. United States, 770 F.2d 20,
22 (3d Cir. 1985). ("[A] suit against the United States under the
Federal Tort Claims Act is the exclusive remedy for tort claims
arising from the actions of government officials or employees."),
cert. denied, 475 U.S. 1108 (1986). Moreover, although
Fernandes has invoked the FTCA, he has not named the United
States as a defendant, even though the United States is the only
proper party in an FTCA suit. See. e.g.. Galvin V. OSHA, 860
F.2d 181, 183 (Sth Cir. 1983). Therefore, Fernandes cannot
pursue claims against the EPA, the Administrator, or the Region II
Administrator under the FTCA.
Fernandes also styles his Complaint as stating a claim
under the citizen suit section of the Clean Water Act, 33 U.S.C. §
1365 (a) (2) , which permits a suit against the Administrator
where there is alleged a failure of the Administrator to perform
any act or duty under the Act which is not discretionary.
However, any claims he may raise under the purview of the
citizen suit provisions must fail due to res judicata. The Court has
already concluded, in its finding that there was no clear error in
the denial of the waiver, that the EPA did not fail to perform any
mandatory duty. To the extent that Fernandes challenges the EPA
At CALE tee 8
regulations authorizing the grant condition, his claims are also
barred by the statute of limitations governing challenges to agency
action. See 5 U.S.C. §§ 701-706, Bench Opinion of March 27,
1995 ("Bench Op.") at 9-10.
To the extent that Fernandes asserts claims for violations
of his civil rights pursuant to 42 U.S.C. §§ 1983, 1985, and 2000d,
those claims are barred by the two year statute of limitations
applicable to civil rights claims brought in this district. See
N.J.S.A. 2A:14-2 (West 1990); Wilson V. Garcia, 471 U.S. 261
(1985) (holding that the statute of limitations for civil rights
actions is the same as the state statute of limitation for personal
injuries). Fernandes' state law tort claims are similarly barred by
the two year limitation for bringing an action under state law.
However, Fernandes’ complaints of civil rights violations
fail for more substantive reasons. First, Fernandes has failed to
allege that these federal actors acted under color of state law -- a
requirement for maintaining a § 1983 action based upon denial of
due process or equal protection. See U.S. Const. amend. XIV, §
1;' Artway V. Attorney General, 87 F.3d 1235, 1251, 1268 (3d
Cir. 1996) . Second, his claims under Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d must fail because contrary to
Fernandes’ position, such a claim requires an alleged
discrimination based upon race, color or national origin.
Fernandes’ argument that equal protection applies when "any
person" is denied a benefit simply lacks merit. Therefore, those
claims would have to be dismissed for failure to state a claim
upon which relief can be granted. Fernandes also claims that
19
Executive Order 12250, 45 Fed. Reg. 72995 (Nov. 2, 1980)
requires the Attorney General to find that the regulations
appearing at 40 C.F.R. §§ 35.925-8(b) and 35.925.13(e) exceeded
the EPA's statutory authority. The Court does not pass on the
question of whether Executive Order No. 12250 provides
Fernandes with an independent right to sue. Instead, it notes that
a government agency's "decision not to prosecute or enforce . . . is
a decision generally committed to an agency's absolute
discretion." Heckler V. Chaney, 470 U.S. 821, 830 (1985). The
presumption against review may be rebutted "where the
substantive statute has provided guidelines for the agency to
follow in exercising its enforcement powers," (id. at 832-33), a
situation not present here.
Moreover, Executive Order 12250, which generally prohibits
discrimination in federally funded programs, is modeled upon Title
VI. Thus, a claim based upon the Executive Order thus depends
upon the viability of Fernandes’ claim for relief under 42 U.S.C. §
2000d. As the Court has already stated that Fernandes has failed to
state a claim under this statute, Count Eleven must also be dismissed.
Lastly, to the extent that Fernandes seeks damages for an
alleged taking, his claims must be dismissed for lack of subject
matter jurisdiction for the reasons stated on the record at the hearing
of March 27, 1995. See 28 U.S.C. §§ 1346 (a) (2) and 1491(a) (1),
Bench Op. at 17-22. For all of these reasons, the Complaint is
dismissed with prejudice as to the federal defendants.
II. Whether the Claims Against Rockaway Should Be
Dismissed And Whether Rule 11 Sanctions Should Be
20
Imposed.
Fernandes asserts that Rockaway's ordinance "denied a
federal benefit," illegally charged an assessment, and intentionally
inflicted emotional distress on him. Fernandes has already brought
three separate lawsuits against Rockaway Township on various
claims stemming from the same underlying facts -- the denial of the
waiver and the limitations placed upon the property sold to him as a
result of the EPA grant condition. All three lawsuits were concluded
unfavorably to plaintiff, and the most recent dismissal of these claims
was with prejudice. Fernandes appealed two of the three dispositions
all the way to the United States Supreme Court; at all points, the
matters were resolved against Fernandes.
It is clear that these claims against Rockaway Township
are barred by res judicata. To the extent that they are not, they are
also barred by New Jersey's entire controversy doctrine, which
1. ‘It appears that Fernandes has a potential remedy.
The federal defendants renew their position that
Fernandes should submit a completed application for a
waiver. They state that EPA's willingness to consider a
completed application [with further information relating
to the impact of the proposed activities] has not
changed." Federal Defendants' Reply Brief at 6. The
Court suggests that this route, while not a guarantee of
success, is preferable to the continued litigation which
has so far proven fruitless for plaintiff.
requires joinder of "all parties with a material interest, one that
can affect or be affected by the judicial outcome of a legal
controversy." Cogdell V. Hospital Ctr. at Orange, 116 N.J. 7, 23
21
. PUBLISHER’S NOTE:
THE FOLLOWING PAGE WAS UNAVAILABLE FOR FILMING:
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transaction. Bennun V. Rutgers the State Univ., 941 F.2d 154,
163 (3d Cir. 1991) , cert. denied, 502 U.S. 1066 (1992)
nonfrivolous argument for the extension, modification, or reversal
of existing law or the establishment of new law([.]" Fed. R. Civ. P.
11(b) & (c)
Having brought four separate and unsuccessful suits
against various Rockaway defendants, it is clear that Fernandes has
had more than the proverbial two bites of the apple.3 This Court
ruled in 1995 that the claims against Rockaway were barred by res
judicata. No matter how plaintiff restates or restyles his bases
for relief, the issues and the claims are based upon the same
facts and have been resolved against him. To the extent that
they have not, the claims are barred by the entire controversy
doctrine. Plaintiff's dogged pursuit of claims against Rockaway,
claims which have been dismissed by two different courts and
passed on by the United States Supreme Court, can only be
considered harassment this time. Accordingly, Rule 11 sanctions
are appropriate.
Rule 11 instructs that a sanction "shall be limited to what
is sufficient to deter repetition of such conduct." Fed. R. Civ. P.
11(c) (2). Such sanctions may consist of "directives of a
nonmonetary nature, .. . or, if imposed on motion and warranted
for effective deterrence, an order directing payment to the movant
of some or all of the reasonable attorneys’ fees and other expenses
incurred as a direct result of the violation." Id.
5 ea a cc
31n fact, one may argue that he has sampled the whole
orchard.
Rockaway should be compensated for the costs it has
expended in defending this baseless action. According to the
Affidavit of Legal Services and Disbursements submitted by
counsel for Rockaway, such costs total $3,168.51. However,
' because the Court is not persuaded that an award of costs is an
adequate deterrent in this case, the Court will enter an order
enjoining Fernandes from bringing any more complaints against
Rockaway Township, its attorneys, the Rockaway Township
Town Council, RVRSA, or any of their agents which arise from
the denial of the Fernandes’ grant waiver application in 1989 or
the earlier sale of the property to Fernandes. It is the Court's view
that only this type of sanction can deter future attempts at
relitigation of this matter.
Il. Whether A Default Judgment Should Be Entered Against
Defendant NJDEP.
Fernandes notes that defendant NJDEP has not responded to
his Complaint and moves for a default judgment against it. The
Court is tempted to grant the relief sought by Fernandes against this
party. However, a review of the Complaint reveals that the claims
} against NJDEP rely upon findings that the denial of the grant waiver
or the grant condition were illegal or improper, or that NJDEP was a
party to a violation of Fernandes' civil rights. These claims all fail for
reasons discussed more fully above. Therefore,
the Complaint must also be dismissed as to the NJDEP.
Moreover, claims against the NJDEP should have been
brought in either of the last two lawsuits concerning this subject
matter. Because they were not, the entire controversy doctrine
prevents Fernandes from being able to assert claims against this
defendant now.
Nw
Ww
Conclusion
Having considered the arguments of counsel and litigant,
and for the reasons stated above;
IT IS on this 12 th. day of August, 1997;
ORDERED that the Amended Complaint of plaintiff
Nelson Fernandes and all the claims within be and hereby are
dismissed with prejudice; and it is
FURTHER ORDERED that plaintiff's motion for
summary judgment be and hereby is dismissed as moot; and it is
FURTHER ORDERED that judgment be entered against
Fernandes and in favor of defendant Rockaway Township Town
Council in the amount of. $3,168.51; and it is
FURTHER ORDERED that plaintiff be and hereby is
enjoined from instituting any further suits against Rockaway
Township, its attorneys, the Rockaway Township Town Council,
RVRSA, or any of their agents, which arise from the denial of the
grant waiver in 1989 or the sale of the subject property to
Fernandes.
SO ORDERED:
“s/ William H. Walls, U.S.D.J.”
26
sae, ata
EXH.-—E May 13, 1996 Denial of Petition for Rehearing
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NELSON FERNANDES,
Appellant
v.
ROCKAWAY TOWNSHIP, TOWN COUNCIL, AND
TOWNSHIP ENGINEER; R.V.R.S.A (ROCKAWAY VALLEY
REGIONAL SEWERAGE AUTHORITY);
E.P.A. (ENVIRONMENTAL PROTECTION AGENCY);
DORSEY & BELL; JOHN H. DORSEY; JOSEPH BELL
(D.C. Civ. No. 94-cv-00338)
SUR PETITION FOR REHEARING
Present: SLOVITER, Chief Judge,
BECKER, STAPLETON, MANSMANN, GREENBERG,
SCIRICA, COWEN, NYGAARD, ALITO, ROTH,
LEWIS, McKEE and SAROKIN, Circuit Judges.
The petition for rehearing filed by appellant in the above-
entitled case having been submitted to the judges who participated
in the decision of this Court and to all the other available circuit
judges of the circuit in regular active service, and no judge who
concurred in the decision having asked for rehearing, and a
majority of the circuit judges of the circuit in regular service not
having voted for rehearing, the petition for rehearing by the panel
and the Court in banc, is denied.
BY THE COURT,
Circuit Judge
Dated: May 13, 1996
27
EXH.—F Appellate Affirmation of the District Court Orders
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 95-5433 & 95-5646
NELSON FERNANDES,
Appellant
v.
ROCKAWAY TOWNSHIP, TOWN COUNCIL, AND
TOWNSHIP ENGINEER; R.V.R.S.A (ROCKAWAY VALLEY
REGIONAL SEWERAGE AUTHORITY);
E.P.A. (ENVIRONMENTAL PROTECTION AGENCY);
DORSEY & BELL; JOHN H. DORSEY; JOSEPH BELL
Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 94-cv-00338
(Honorable William H. Walls)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 15, 1996
Before: STAPLETON, SCIRICA and COWEN, Circuit Judges
JUDGMENT ORDER
After consideration of all contentions raised by appellant, it is
ADJUDGED AND ORDERED that the district court's
order entered May 15, 1995, letter-order entered June 20, 1995,
and letter-order entered August 28, 1995, be and are hereby
AFFIRMED.
Costs taxed against appellant.
BY THE COURT,
Circuit Judge
fi
Attest:
DP. Douglas Sisk, Clerk, March 26, 1996
28
Senne eee aN RE ee
EXH.—G Aug. 24, 1995 Order
Re: Nelson Fernandes v. Rockaway Town Council and Township
Engineer, et al. Civil Action No. 94-338 (WHW)
Dear Counsel:
This matter is before the Court on Defendant Environmental
Protection Agency's motion for clarification.
INTRODUCTION
On August 6, 1985, Rockaway Township held a public sale
of real property by auction. Rockaway Township sold all property
"as is" without any representations "as to the condition, area, or
boundaries." Lot 8 was one of the land parcels on which the public
bid. A portion of lot 8 was covered by environmentally sensitive
freshwater wetlands.
On September 21, 1985, Plaintiff Fernandes won ownership
of lot 8 by bidding $10,000.00. Fernandes had a title search done
at the time of purchase. On November 15, 1985, Fernandes took
title to lot 8 by deed recorded with the Morris County Clerk.
Planning to build a single family dwelling, Fernandes hoped to
connect the home to an adjacent municipal sanitary sewer line.
However, his application for the connection was rejected because
of a grant condition imposed by the federal government.
In 1983, the federal government gave Rockaway Township a
grant so that the Township could build a sanitary sewer system.
According to Grant Agreernent No. C340389-04-02, lots within an
environmentally sensitive area ("ESA") cannot be connected to
federally funded sewers. The purpose of the condition is to protect
the surrounding wetlands. Fernandes’ request for a waiver from
EPA's ban to connect to the sewerage system was denied.
In January 1994, Fernandes filed a Complaint naming the
following defendants: the Environmental Protection Agency
("EPA"), the EPA" Regional Administrator ("Regional
Administrator"), Rockaway Township, Rockaway Town Council,
Rockaway Township Engineer, Rockaway Valley Regional
Sewerage Authority ("RVRSA"), Dorsey & Bell Law Off ice, John
Dorsey and Joseph Bell. All of the above-named defendants
moved to dismiss plaintiff's Complaint. Fernandes cross-moved for
a partial summary judgment. The EPA and the EPA Regional
29
Administrator then moved for a partial summary judgment.
In its May 11, 1995 Order, this Court (1).dismissed with
prejudice all of plaintiffs claims against defendants Rockaway
Township Town Ceuncil and Township Engineer, Dorsey and
Bell, John Dorsey and Joseph Bell, and Rockaway Valley
Regional Sewerage Authority and its Executive Director, (2)
dismissed without prejudice all of plaintiff's claims against
United States Environmental Protection Agency and Regional
Administrator of Region II and (3) denied plaintiffs motion for
partial summary judgment. EPA's motion for partial summary
judgement was not decided. EPA presently moves for clarification
as to the status of its motion for partial summary judgment. The
motion for clarification is granted and this Court will now proceed
with its determination of the partial summary judgment motion.
DISCUSSION
The EPA requests a finding that its denial of Fernandes |
grant waiver was not arbitrary and capricious. A reviewing court
must set aside agency action deemed " to be arbitrary, capricious,
and abuse of discretion, or otherwise not in accordance with law."
5 U.S.C. sec. 706(2) (A). The court must "consider whether the
decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment." Stoeco Dev. .
Ltd. V. Department of Army Corps of Eng'rs, 701 F.Supp 1075,
1080 (D.N.J. 1988), appeal dismissed, 879 F.2d 860 (1989)
(quoting Citizens to Preserve Overton Park V. Volpe, 401 U.S.
402, 415-16 (1971)). However, the court is "not empowered to
substitute its judgment for that of the agency." Td. The standard
of. review is "highly deferential"; agency findings are "entitled to
a presumption of regularity." Id.
Before granting a waiver application, the EPA must be
assured that the proposed activities do not violate the Clean Water
Act ("CWA"), 33 U.S.C. §§ 1251-1387. Congress enacted the
CWA in order to "restore and maintain the chemical, physical, and
biological integrity of the Nation's waters." 33 U.S.C. sec. 1251
(a). Thereafter, the discharge of dredged or fill materials from a
point source into wetlands without a section 404 permit issued by
the U.S. Army Corps of Engineers became prohibited. See 33
U.S.C. §§ 1311 (a), 1344.
Before granting a waiver application, the following factors
are to be considered: (1) area extent of vacant parcel(s) which
contain ESAs (i.e., floodplains and/or wetlands); (2) extent and
ecological quality of ESAs affected; and (3) amount of existing
development surrounding the parcel(s). See Exhibits to
Declaration of Robert W. Hargrove, Exh. D. To obtain the
necessary information, an inspection of the property was
conducted in March 1989 at the request of the EPA. Id. at Exhs.
N, 0. The inspection revealed extensive wetlands, several small
streams running from the property into White Meadow Lake, and
significant development of surrounding lots. Id. Based on the
above data, the EPA denied Fernandes’ waiver application. The
EPA has offered to
reevaluate Fernandes’ application provided that a more
recent site inspection is performed and information demonstrating
that any sewer system connections will not jeopardize the
wetlands is provided.. Id. at Exhs. Q, R.
Based on the above, this court finds that the EPA considered
the relevant factors and made no "clear error" when reaching its
decision. The site inspection conducted in 1989 did not reveal a
significant decrease in wetlands warranting reclassification. The
property continues to be predominantly wetlands and therefore
continues to be protected under the Clean Water Act. The EPA's
decision to protect the wetlands is rationally based on the
available information. No contravening evidence is offered by the
plaintiff.
Accordingly,
IT IS on this 24 th. day of August 1995 ;
ORDERED that the EPA's motion for clarification is
granted; and it is further
ORDERED that EPA's motion for partial summary
judgment is granted.
WILLIAM H. WALLS, U.S.D.J.
—
EXH.—H June 19, 1995 Denial of Reargument
Dear Counsel:
This matter is before the Court on plaintiff's
motion for reargurnent.
INTRODUCTION
On August 6, 1985, Rockaway Township held a
public sale of real property by auction. The terms of the public
auction were that the property was sold "as is" and that "no
representations of any kind are made by the Township of
Rockaway as tQ the condition, area, or boundaries of the property
herein relevant. " Lot 8 was one of the land parcels on which the
public bid. A portion of lot 8 was covered by environmentally-
sensitive freshwater wetlands. On September 21, 1985; plaintiff
won ownership of lot 8 by bidding $10,000.00. plaintiff had a
title search done at the time of purchase. On November 15, 1985,
plaintiff took title to lot 8 by deed recorded with the Morris
County Clerk. Plaintiff later purchased lot 9 which is adjacent to
lot 8. He planned to subdivide the two lots and build a single
family dwelling. plaintiff hoped to connect the single family
home to the municipal sanitary sewer line that ran adjacent to his
lots. However, his application was rejected because of a grant
condition imposed by the federal government. In 1983, the federal
government gave Rockaway Township a grant so that the
Township could build a sanitary sewer system. According to
Grant Agreement No. (C340389-04-02, lots within an
environmentally sensitive area could not be connected to federally
funded sewers. The purpose of the condition is to protect the
surrounding wetlands. plaintiffs lots are two of approximately
140 lost in the Township which were impacted by the EPA grant
condition. plaintiff attempted to obtain a waiver from EPA's ban,
but defendant Rockaway Valley Regional sewage Authority
received a letter on May 5. 1989 from the EPA's Acting Regional
Administrator denying the request.
All of the defendants moved to dismiss plaintiff's various
claims against them. plaintiff cross-motioned for partial summary
judgment. EPA, in addition to its motion to dismiss, moved for
partial summary judgment against the plaintiff.
2, _—
In its May 11, 1995 Order, this Court (1) dismissed with
prejudice all of plaintiff's claims against defendants Rockaway
Township Town Council and Township Engineer, Dorsey and
Bell, John Dorsey and Joseph Bell, and Rockaway Valley Regional
Sewerage Authority and its Executive Director, (2) dismissed
without prejudice all of plaintiff's claims against United States
Environmental Protection Agency and Regional Administrator
of Region II and (3) denied plaintiff's motion for partial summary
judgement. EPA's motion for partial summary judgement was not
decided.
Discussion
Under Rule 12(1) of the United States District Court Rules, the
party moving for reargument must state "concisely the matters or
controlling decisions which [said party believes the Judge or
Magistrate has overlooked." Id. If the motion is granted, "the
matter shall be reargued orally." Id.
The primary determination in a motion for reargument is
whether "dispositive factual matters or controlling decisions of
law" were overlooked by the Court. Pelham v. United States, 661
F.Supp. 1063, 1065 (D.N.J. 1987). A motion for a reargument is
not an opportunity for a party to presen't new arguments. Florham
Park Chevron, Inc. v. Chevron U.S.A.., Inc., 680 F. Supp. 159, 162
(D.N.J. 1988). Where the Court has not overlooked facts and cases
properly presented at the time of the motion, the Third Circuit has
consistently denied relief. See Egloff+. New Jersey Air National
Guard, 684 F. Supp. 1275 (D.N.J. 1988). A party's disagreement
with the Court's decision "should be dealt with In the normal
appellate process, not on a motion for reargument." Florham Park
Chevron, 680 F. Supp. at 163.
Simply stated, plaintiff sets forth no matter or controlling
decision which was overlooked by this Court. Therefore, plaintiff's
motion for reconsideration is denied.
CONCLUSION
For the reasons set forth in this Letter Opinion, it is on this
19 th. day of June 1995
ORDERED that Plaintiff's motion for reargument be and
hereby is denied.
33
“s/ William H. Walls, U.S.D.J./
0 ON
EXH.-I May 11, 1995 Order
BOYAR, HIGGINS & SUOZZO, P.A. (JH 8207)
A Professional Corporation
10 Park Place, Suitte. 415
Morristown, New Jersey 07960
(201) 538-8008
Attorneys for Defendants, Rockaway Townshi p
Town Council and Township Engineer
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NELSON FERNANDES, Civil Action # 94-338(WHW)
Plaintiff,
ROCKAWAY TOWNSHIP TOWN
COUNCIL AND TOWNSHIP
ENGINEER, et al
Defendants .
Xx
ORDER DISMISSING AMENDED COMPLAINT
AS TO ALL DEFENDANTS
THIS MATTER having been opened to the Court on March
27, 1995, honorable William H. Walls, U.S.D.J. presiding, upon
defendants' motions brought pursuant to Fed.R.Civ.P.12(b)(1),
Fed..R.Civ.P.12(b) (6) and Fed.R.Civ.P.56 to dismiss the Amended
Complaint, by defendants, Rockaway Township Town Council and
Township Enginee:r by Boyar, Higgins & Suozzo, P.A. (James
J.Higgins,~ Esq. appearing); by defendants, United States
Environmental Protection Agency and Regional Administrator of
Region II, by the United States Department of Justice (Mark A.
Rigau, Esq. appearing); by defendants, Dorsey & Bell, John
Dorsey and Joseph Bell by Dorsey & Fisher (Douglas R. Cabana,
Esq. appearing); and by defendants, Rockaway? Valley Regional
Sewerage Authority and Executive Director, by McManimon &
Scotland (Joseph Maraziti, Esq. appearing); and on cross-motion of
plaintiff, Nelson Fernandes for partial summary judgment (Nelson
Fernandes, pro se appearing), and the Court having considered the
papers filed by the moving parties and those submitted in
opposition, having heard oral argument on March 27, 1995 and for
good cause shown, all as set forth on the record, 1995:
IT IS on this 11 th. day of May, 1995:
ORDERED, that the motion of all defendants be and the
same are hereby granted; and it further
ORDERED, that the Amended Complaint be and the same is
hereby dismissed with prejudice as to defendants, Rockaway
Township Town Council and Township Engineer; Dorsey & Bell,
John Dorsey and Joseph Bell; and Rockaway Valley Regional
Sewerage Authority and its Executive Director, with no costs; and
it is further
ORDERED, that the Amended Complaint be and the
same is hereby dismissed without prejudice, as to defendant,
United States Environmental Protection Agency and Regional
Administrator of Region II; and it is further
ORDERED, that plaintiffs motion for partial summary
judgment be and the same is hereby denied; and it is further
ORDERED, that counsel for defendants, Rockaway
Township Town Council and Township Engineer, shall serve a
copy of this Order upon plaintiff pro se and all counsel appearing
within 10 days of it having been entered.
“s/WILLIAM H. WALLS, U.S.D.J.”
EXH. - J Mar. 27, 1995 District Court Opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 94-0338(WHW)
TRANSCRIPT OF PROCEEDINGS - March 27. 1995
FERNANDES, Plaintiff,
-VS-
ROCKAWAY TOWNSHIP, ET AL, Defendants.
BEFORE:
THE HONORABLE WILLIAM H. WALLS.
UNITED STATES DISTRICT JUDGE
APPEARANCES:
NELSON FERNANDEZ, PRO SE.
BOYAR, HIGGINS & SUOZZO, P.A.
BY: JAMES J. HIGGINS, ESQ.,
-and-
MC MANIMON & SCOTLAND, ESQS.,
BY: JOSEPH J. MARAZITI, JR., ESQ..
-and-
DOUGLAS R. CABANA, ESQ.,
Attorneys for Defendants.
Pursuant to Section 753 Title 28 United States Code, the following
transcript is certified to be an accurate record as taken
stenographically in the above-entitled proceedings.
PHYLLIS T. LEWIS, C.S.R.
OFFICIAL COURT REPORTER - U.S. DISTRICT COURT
P.O. BOX 25588, Newark, New Jersey, 07101
(201) -645-3677
Start of Page 2
37
(March 27, 1995)
(The foregoing was not ordered at this time.)
THE COURT: In August of 1985 Rockaway
Township held a public sale of real property. That was done by
auction. Property was sold "as is." No representations of any
kind were made by the Township of Rockaway as to the
condition, area or boundaries of the property sold.
Lot 8 was one of the land parcels which was
' available for bidding by the public. A portion of that lot was
covered by the environmental sensitive fresh water wetlands.
The present plaintiff, Mr. Fernandez, won by
bidding $10,000 for Lot 8, and he had a title search done at time
of purchase and took title by deed recorded with the Morris
County Clerk.
: He later purchased Lot 9 adjacent to Lot 8, and
according to his representations, planned to divide the two lots
and build a single-family dwelling. He hoped to connect it to the
sanitary sewer line that ran adjacent to his lots. However, his
application was rejected because of a grant condition imposed by
the federal government.
In 1983 the federal government had given or gave
Rockaway Township a grant in order that the Township could
build a sanitary sewer system.
Acording to that grant agreement, lots within that
Start of Page 3 ‘
' environmental sensitive area could not be connected to federally
funded sewers. The purpose of the condition was to protect the
surrounding wetlands.
Unfortunately, plaintiff's lots are two of
approximately 140 lots in the Township which were impacted by
that grant condition.
Mr. Fernandez attempted to obtain a waiver from
that ban of the EPA, but in 1989 Rockaway Valley Regional
Sewerage Authority received a letter from the EPA's Acting
Regional Administrator denying the request.
Consequently, Mr. Fernandez sought the aid of
Federal Court, U.S. District Court for this district, and brought a
38
asin ae re canter EE eR ne ue mera ane RT aS
Stn’ aie man Tie RW Hrs Malek «tas Mors Mates
et mine Del a nla le Gis 7B:
complaint against Rockaway Township Town Council and the
Township Engineer, and that complaint or a later amended
complaint alleged ten causes of action, including alleged material
misrepresentation, violation of statute and fraudulent concealment.
That was dismissed by Judge Barry of this Court on
November 28, 1990 determining that it might be better for plaintiff
to commence his action before the State Court, which he did.
Apparently in 1991, and again in 1992, his State
Court actions were dismissed by the Superior Court of New Jersey.
Start of Page 4
He had in the amended complaint before the
State Court alleged:
(1) That the sale of property to him by Rockaway
Township was in violation of state statute 40:A 12-13.
(2) That there was a malicious policy and custom of
Rockaway Township Town Council to sell worthless lots in
violation of 42 USC section 1983.
(3) That the Township Engineer had conspired with the
Town Council in carrying out this policy with regard to the sale of
lots.
(4) That the Township Council members conspired among
themselves to effect the sale of lots which represented a malicious
abuse of governmental power.
(5) That there was, in addition, conspiracy to have the
Township conceal the EPA grant condition.
(6) That the Township arbitrarily denied requests from
owners of wetland lots to conceal the original conspiracy.
(7) That the Rockaway Township Engineer harrassed
plaintiff in violation of his constitutional rights.
(8) That such rights were infringed by the Township
Engineer, which represented discrimination upon plaintiff who was
a member of a minority.
(9) That there was fraud committed upon him and the
public when the Rockaway Township made an "as is" sale, making
it appear to conform to statutes.
Start of Page 5
39
And lastly, that the Township sale of the lots contrary to the
statute represents a taking and implied promise to pay
compensation.
As I said before, this complaint was dismissed in
two parts really by two Superior Court Judges, and thereafter
exercising the right of automatic appeal to the Appellate Division.
Again, Mr. Fernandez lost. The Appellate Division asserting in
dismissing the matter, "We see no basis for breach of contract
: claims advanced by plaintiff to the extent he relies upon tort
claims because of the personal injury aspect of the federal claims.’
He was barred by the statute of limitations, and also, that the
claims pursuant to 42 USC section 1983 were barred by the New
Jersey's two-year statute of limitations.
Thereupon, Mr. Fernandez sought relief from the
New Jersey Supreme Court, which denied certification in March
of 1993. He petitioned tie Court for reconsideration which again
was denied in May in 1993.
Thereafter he sought writ of certiorari from our
United States Supreme Court, which was denied in October of
1993.
I think I fairly represented the procedural history,
and now he commences this present action before this Court,
having done so in January of last year, January 24, 1994.
Start of Page 6
As I said originally to him, I repeat to all parties,
with regard to the claims brought against Rockaway Township,
the Town Council and Township Engineer, all of those, in my
: opinion, have been the subject of res judicata. His claims against
Rockaway Township, the Town Council and the Township
Engineer have been adequately and fully, in my opinion,
presented and tested before trial judges and through the process of
appellate review.
' These matters, as I said, were denied. The merits
of them were found to be wanting by two Superior Court judges
and later by the Appellate Division, which action was reviewed by
our highest tribunal. Because these claims have already been
adjudicated, they are therefore barred. All of the elements of res
judicta are satisfied, and his claims against these parties are
dismissed.
40
i atid Dated eae
Plaiatiff's claims brought against defendants
Dorsey & Bell Law Office, John Dorsey and Joseph Bell, are
dismissed by the doctrine of collateral estoppel. The thrust of that
type of determination is that identical issues have been decided on
prior adjudication. There has been a final judgment on the merits
The party against whom the bar has been asserted
either was a party or in privity with a party of the former
adjudication, and the party against whom the bar is associated had
a full and fair opportunity to litigate the
Start of Page 7
issues in question.
Defendants John Dorsey and Joseph Bell of the
Dorsey & Bell law firm represented Rockaway Township in the first
action. Plaintiff alleged in discovery, that said defendants were
aware of the Rockaway Township's policy to sell wetland lots.
Furthermore, plaintiff contends defendant Joseph
Bell admitted alleged concealment before the Superior Court. The
issue of whether Rockaway Township concealed the grant petition
has already been adjudicated.
The claim asserting knowledge of Rockaway
Township's concealment made against the attorneys in the law
office must per force fail if a court already determined that
Rockaway Township did not conceal the grant condition, or that
the burden of proof with regard to this assertion has not been met.
Therefore, taese matters having already been
adjudicated adversely against him, they have to be dismissed, as |
do now dismiss them, against the individual attorneys.
Now, Mr. Fernandez comes with an attack upon
the actions of the EPA and Regional Administrator. Basically
he seeks $20 million against the EPA aud the Regional
Administrator. I will be very succinct about it. The
Government only permits itself to be sued under sovereign
Start of Page 8
immunity, and here there has been no waiver of sovereign
immunity. Therefore, any seeking of $20 million must be
dismissed because such claims are barred by the doctrine of
sovereign immunity. The United States is immune from suit
except if it consents to be sued.
4]
In relation to his claim against the Regional
Administrator of Region II, he does not name a particular person.
No individual is on notice of a lawsuit against him personally, and
no one is aware of an obligation to defend. Should we treat this
then as an official capacity claim, official capacity suits are
pleaded as actions against the entity because the entity is the real
party in interest. Under those circumstances, the plaintiff can only
recover damages from such an entity, unlike a circumstance of
where an individual has been named in the complaint specifically.
Here the plaintiff does not even name an
individual. It appears that he is simply using this in an attempt to
recover more money from the Government.
However, as I said before, the Government only
can consent to be sued, and in this capacity claim for better status,
we note that the Government has not waived immunity.
Plaintiff arguzs that immunity is waived under the
Federal Tort Claims Act 28 USC sections 1346(b), 2671-2680.
However, he has not complied with the Federal Tort Claims
administrative claim requirement which is a jurisdictional
Start of Page 9
prerequisite to maintaining a suit. See Livera vs. First National
State Bank of New Jersey, 879 F.2d 1186, 1194, a Third Circuit
decision in 1989, which has been reviewed by our own United
States Supreme Court in denying cert, 493 U.S. 937.
Mr. Fernandez also argues that immunity is waived
under the National Environmental Protection Act, but again, the
government must waive sovereign immunity, particularly where
he seeks damages because of a violation of that act does not give
rise to monetary damages. Fund for Animals, Inc. vs. Espy, 814
F. Supp. 142, 151, a 1993 case from the District of Columbia
teaches us so.
Plaintiff brings claims under 42 USC 1981,
1982, 1983 and 2000(d), claiming immunity having been
waived under the Federal Tort Claims Act, but as | noted, he
has not complied with the jurisdictional prerequisite.
Additionally, plaintiff says that he wants $20
million in damages, and he makes a takings claim. Under the
42
Tucker Act, soverign immunity is waived and recovery on a
takings claim is permissible in Federal District Court if the
recovery is limited to $10,000. Otherwise, he must seek the
forum of the United States Court of Federal Claims. However.
again, there has been no waiver of immunity.
With regard lastly to his challenge to the EPA grant
condition, that is subject to a six-year statute of
Start of Page 10
limitations found in 28 USC section 2401(a). That cause of
action consists of the plaintiff's rights claimed and the
defendant's infringement of that right. The grant of that right
accrued when the condition became final, when it was
accepted in February of 1984. The statute of limitations began
to run then. Plaintiff's complaint was filed on January 27,
1994. His challenge is barred by the statute of limitations and
is dismissed.
Plaintiff's claims against the EPA and the Regional
Administrator are dismissed so, too, against Rockaway Valley
Sewerage Authority, because there is no evidence that would
independently link RVRSA, which is Rockaway Valley Regional
Sewerage Authority to any claimed acts.
Any claimed acts against that authority are
dependent upon any cognizable acts that plaintiff could make
against other defendants, which unfortunately he failed to do. For
those reasons, the matters are dismissed.
(The matter was concluded.)
43
EXH.— K Amended Complaint
Nelson A. Fernandes, Pro Se
9FoxRun
Denville, N.J. 07834
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No: 96-5791 (WHW)
CIVIL ACTION
AMENDED COMPLAINT
Nelson Fernandes,
Plainflff,
-VS-
EPA , Administrator of the EPA,
Regional Administrator for Region II,
Commissioner of NJDEP,
Rockaway Township Town Council,
Attorney General,
Defendants.
i i i i a a a
—
PARTIES
Plaintiff: Nelson Fernandes, 9 Fox Run, Denville, N.J.
07834, (201) 627-2138 (Pro-Se)
Defendants: Administrator of EPA, 401 M.St. S.W..,
Washington, D.C. 20460,
Reg. Admin. for Region II, Rm. 937A, 26 Federal
Plaza, IY. Y., N.Y. 10278, Commissioner of
N.J.D.E.P., CN402, Trenton, N.J. 08625-0029,
Rockaway Township Town Council, 65 Mt. Hope
Rd., Rockaway 07866-1698.
Attorney General, USD of Justice, 950
Pennsylvania NW, Wash., DC 20530
44
JURISDICTION
Federal Tort Claims Act, 28 U.S.C. §§ 1346(a) (b); 2671-2680
(1988) ("FTCA").
42 U.S.C.§ 1983 42 U.S.C.§ 1985(3) 33 U.S.C.§ 1251 et eq.
28 U.S.C. § 1331 28 U.S.C. § 1332 28 U.S.C. § 1366
28 U.S.C. § 1343 42 U.S.C. § 2000d et seq.
5 U.S.C. §701 et seq.
28 U.S.C. § 2201 28 U.S.C. § 1361 28 U.S.C. §1651
Pendent jurisdiction of pendent state claims that arise out of the
same nucleus of operative facts. United Mine Workers V. Gibbs,
383 U.S. 715 (1966).
PLAINTIFF DEMANDS A JURY TRIAL
Each fact or allegation is to be considered a pertinent part of
any other claim if needed to complete that claim, so that claim is
not considered defective by its absence.
Rockaway Township will be referred to as “Rockaway”, the
Rockaway Valley Regional Sewer Authority will be referred to as
“RVRSA”, the Environmental Protection Agency will be referred
to as "EPA", the N.J. Department of Environmental Protection will
be referred to as "NJDEP", the Clean Water Act will be referred to
as "CWA".
PERTINENT FACTS AND STANDING.
1. Rockaway Township knew its ordinance denying sewer
service was illegal. So it fraudulently concealed the fact that it
relied on its ordinance. Rather than disclose this fact, it sold land
affected by said ordinance to plaintiff. The township then approved
plaintiffs subdivision although it could not be connected to the
sewer, nor be granted a permit to build a septic system. After the
subdivision was approved, the township denied plaintiff building
permits by making it appear that said grant condition occurred after
the subdivision was approved.
2. Plaintiff was denied the right to build as the result of said
grant condition. However, the only authority that existed to deny
connection was the town's ordinance that was concealed to make it
45
appear that Rockaway was acting in support of federal authority.
After being denied the right to build, plaintiff followed the
procedures provided by Rockaway to obtain a grant waiver.
3. On October 21, 1988 the NJDEP, Division of Coastal
Resources exempted plaintiffs property from having to obtain a
freshwater wetlands permit.
4. On April 1, 1989, plaintiff received a letter from the
NJDEP, Division of Water Resources stating that it was
reconfirming its recommendation to deny plaintiffs waiver,
_ although plaintiff never received the original recommendation to
deny his waiver.
5. On May 5, 1989, plaintiff received a copy of EPA's
official denial of his grant waiver that relied on NJDEP's
recommendation,
6. Plaintiff met with the EPA and NJDEP on May 30, 1989.
During that meeting, Mr. Llewellyn, EPA's attorney, admitted
plaintiff could fill his lots based on an ACOE permit, thus
destroying the wetlands on his lot, but refused to allow plaintiff to
connect to the sewer. There was no mention of nonpoint source
mnoff.
STANDING
7. Plaintiff was provided sewer ~connection slips by
Rockaway's Engineering Dept. to show that connection points
were provided to service his lots.
8. Plaintiff paid a sewer assessment in detrimental
reliance of these slips, thus entitling him to sewer service, that
was later denied by Rockaway Township, RVRSA, NJDEP,
and EPA.
9. Plaintiff had the lots subdivided in detrimental reliance
of the sewer connection slips and the assessment that he paid.
10. Rockaway Township, RVRSA, NJDEP, and EPA dealt
with plaintiff as a person entitled to sewer service, but denied the
right by the grant condition. Processing plaintiffs grant waiver
appeal until denied on May 5, 1989, represents an affirmative act
amounting to a waiver of their right to challenge plaintiffs right to
enforce a Title VI regulation, or challenge the validity of the
regulation they rely on.
11. Plaintiff is a third party bencficiary to Grant No.
C340389-04.
46
ae
PAGE 1
12. Plaintiff is entitled to service since 40 CFR Ch. I,
Subpart. F, §30.600 (E) requires: These authorities prohibit you
from excluding any person from paflicipating in, denying them the
benefits of. . . any program or activity involving federal financial
assistance.
13. Plaintiff filed a notice of intent to sue in accordance
with the citizen's suit provision of the Clean Water Act, which
provides a waiver of EPA's sovereign immunity.
CLAIM ONE - EPA's, Mr. Hargrove, proposed a Denial of Due
Process & Equal Treatment.
1. Robert Hargrove, as a soils conservationist, wrote a memo on
4/23/79 on "Limited access interceptor sewers as they_relate to the
construction grant program in New Jersey" (Exh. A).
2. His memo went beyond the concept in the article that it
was based on, by recommending a grant condition to limit sewer
hook-ups that is part of Grant No. C340389-04.
3. He reviewed cases related to sewer service but never
considered the Title VI regulation or other federal court rulings
that bar the grant condition that he recommended.
4. His "EPA Authority Section" contained no statutory,
regulatory, or judicial authority to support EPA using a grant
condition, nor did it present the federal law that prohibits its use.
5. Mr. Hargrove knew N.J. septic regulations would not
allow permits for septic systems on lots within 100' of a sewer
line (Exh. A, p.2). Hence, the grant condition caused plaintiff a
denial of state rights and a due process violation, since no
procedure is adequate to protect his right.
6. Mr. Hargrove's failure to address a large body of federal
law that would be violated, shows he recklessly disregarded
plaintiffs rights.
7. Regional Administrator abdicated his duty by failing to
have the Attorney General determine if Mr. Hargrove's concept
complied with federal and state law, thus failing to perform the
nendiscretionary duty of complying with enabling authorities.
8. Plaintiff asks the court to review the allegations in this
claim.
47
CLAIM TWO - Mr. Sullivan Instituted a Policy to Deny Due
Process and Equal Treatment.
1. Mr. Sullivan, Chief of EIS Preparation Branch, wrote a
policy memo dated 5/25/79 on the subject of "Grant and Permit
Conditions to Restrict Sewer Hookups in Environmentally Critical
Areas" (Exh. B). His memo required the initial use of the grant
condition to deny sewer hookups in grants to be provided to Cape
May, New Jersey and two others areas, which precede the grant
provided to the RVRSA that affects plaintiff.
2. Mr. Sullivan relied on Mr. Hargrove's memo although on
its face it results in a denial of due process and equal treatment
(Exh. A, p. 2).
3. Mr. Sullivan also relied on regulation 35.925-8(b) that
appears in Attachment | to his memo as the authority for
imposing grant conditions (Exh. B, p.6).
4. This regulation exceeds EPA's statutory authority by
disregarding federal law that prevents conditions relating to
plaintiffs rights, unless there is explicit statutory authority.
5. Mr. Sullivan also relied on regulation 35.925-13(e) as
providing authority to impose a grant condition to restrict sewer
hook-ups (Exh. B, p.7). This regulation exceeds EPA's statutory
authority, thus denying due process and equal treatment, when
that condition was used. ig
6. Plaintiff asks the court to declare whether the preceding
regulations fail to stay within the authority of the enabling statute.
PAGE 2
7. Mr. Sullivan knew these regulations were inadequate
by recognizing conditions of this type were only accepted when
instituted by the state (Exh. B, p. 2). However, no such law
existed in New Jersey.
8. Mr. Sullivan then instituted a scheme to deny due
process in his memo, under "Strategy and Timetable" (Exh.B,
p.5) "6. Negotiate with State to require them to amend its
review procedure to reject grant applications and deny sewer
extension permits.
9. EPA had NJDEP deny waiver requests, so EPA could
deny plaintiffs waiver on the grounds that it was supporting state
action, in order to fraudulently conceal their own violations.
48
10. This conspiracy represents an affirmative act amounting
to a waiver of EPA's and NJDEP's right to rely on statute of
limitations or other defense that would bar judicial review.
11. Mr. Sullivan's policy constitutes a "conscious and
express" abdication of EPA's enforcement duties under the
Clean Water Act (CWA).
12. EPA failed to perform a nondiscretionary duty by
creating a wetland lots classification in a grant condition instead of
the manner provided by 33 U.S.C. § 1316.
13. EPA failed to perform a nondiscretionary duty by
invading this state's independence when it negotiated a denial of
due process with NJDEP, to affect its quasi judicial proceedings.
14. On July 11, 1980, Eckardt C. Beck, Assistant
Administrator for Water and Waste Management, wrote a memo
approving the use of Mr. Sullivan and Mr. Hargrove's concept,
making this an official EPA discriminatory policy (Exh. C).
15. Endorsizg a policy that negotiates a denial of due process
and equal treatment with a state agency is a failure to perform the
nondiscretionary duty of constitutional conduct.
16. The EPA proceeded with it plan to cause plaintiff
intentional infliction of emotional distress as the means that would
prevent him from challenging their action.
17. Plaintiff prays the court review the above and declare the
rights of the parties on each of the above issues.
CLAIM THREE - EPA and NJDEP's Conspiracy.
1. The underpinnings of this conspiracy are contained in
Mr. Sullivan's 5/25/79 memo (Exh. B, p. 5) "6. Negotiate with
State to require them to amend its review procedure to reject
grant applications and deny sewer extension permits.
2. Presenting this memo in the earlier case represents the
first disclosure of this ongoing concealment of EPA's conspiracy
with the NJDEP.
3. Mr. Sullivan's policy led EPA to "consciously and
expressly" abdicate its enforcement duties under the Clean Water
Act (CWA) by conspiring with the NJDEP to have them review
and recommend denial of plaintiffs grant waiver appeal in
violation of due process. This conspiracy was done in violation of
42 U.S.C. 1983 and 1985.
4. The EPA failed to perform a nondiscretionary duty by
49
involving the NJDEP in the grant waiver review process.
5. The EPA directed the RVRSA to submit grant waiver
appeals to the NJDEP.
6. NJDEP, Division of Water Resources recommendation to
deny plaintiffs grant waiver amounted to an affirmative act
waiving its right to claim the protection of the statute of
limitations and any other affirmative defense that would bar a
judicial review.
PAGE 3
7. NJDEP, Division of Water Resources acted in
furtherance of this conspiracy by reviewing Title VI grant
waiver appeals, doing a field study, preparing its report, and
by recommending the EPA deny plaintiffs appeal as Mr.
Sullivan had planned (Exh. E).
8. The review done by the Division of Water Resources,
Municipal Waste Water Assistance Element was done at the
direction of the Commissioner, making him a party to for this
ongoing conspiracy.
9. Plaintiff seeks a declaratory judgment as to the rights of
the NJDEP, EPA and plaintiff, or in the alternative, to compel the
EPA and NJDEP perform its statutory duties. Plaintiff seeks
damages for EPA and NJDEP's invidious discrimination that has
damaged plaintiff.
10. NJDEP's ongoing participation in this conspiracy
abrogates its Eleventh Amendment Immunity in accordance
with 42 U.S.C. § 2000d-7(b), for NJDEP's denial of equal
treatment by recommending a denial of plaintiffs grant waiver
to further the conspiracy.
11. This statute abrogates immunity for violations after
October 21, 1986.
12. Plaintiffs complaint against all the defendants is timely
by virtue of the doctrines of waiver, estoppel, fraudulent
concealment and the continuing violation theory.
13. EPA denied plaintiffs grant waiver in support of
NJDEP's recommendation in furtherance of ifs conspiracy to
make it appear that it was acting in support of state action, which
amounts to a fraudulent concealment and denial of equal
protection that resulted from their joint effort (Exh. F).
50
14. 33 U.S.C. §§§ 1316,1317, & 1319 do not provide the
EPA with authority to deny sewer service via a grant condition or
to make the NJDEP a party to such a denial.
15. This conspiracy was designed to mask the existence of
a cause of action by creating a facade of joint federal and state
action, requiring both the EPA and NJDEP be parties in this
lawsuit in order to show that each lacks the requisite authority
and to prove the recommendation of the NJDEP, taken with
EPA denial of a grant waiver represents the conspiratorial act.
16. Plaintiff asks the court to declare whether EPA and
NJDEP conspired to deny his rights.
CLAIM FOUR - NJDEP's Violation of 42 U.S.C. 1983.
1. NJDEP, Division of Coastal Resources granted
plaintiff a freshwater wetlands exemption on 10/21/88 (Exh.D).
This exemption ended NJDEP's state authority to act further.
2. EPA conspired with NJDEP, Division of Water
Resources to have them recommend denying plaintiff sewer
service under the color of state law, in order to deny plaintiffs
property right to a Title VI benefit, and to deny him equal
treatment, thus violating 42 U.S.C. 1983.
3. NJDEP discriminated against plaintiff by recommending a
denial of sewer service in furtherance of its conspiracy with the
EPA, so EPA could deny the waiver in reliance of their act.
4. Plaintiff asks the court to declare whether NJDEP violated
plaintiffs federal rights.
CLAIM FIVE - Equal Protection Violation.
1. Regulations 35.925-8(b) and 35.925-13(e) rely on implied
CWA authority.
2. U.S. Supreme Court held that grant conditions require
explicit statutory authority several years before the EPA imposed
its grant condition of the RVRSA.
3. The EPA used it rightful authority to impose grant
conditions to make the United States liable for an act that was
carried out in the name of the government, and has injured people
who
PAGE 4
5]
were intended beneficiaries of a federal program, so that the
government must stand behind the injury done to those who were
supposed to benefit, not be injured.
4. The EPA failed to perform its duty by attaching their
grant condition to the grant provided to the RVRSA.
5. EPA failed to perform its duty in accordance with its
authority, which has resulted in a denial of both; due process
and equal protection by instituting regulations that exceed the
' explicit authority of the Clean Water Act, and constitutional
limitations.
6. Plaintiff asks the court to declare whether EPA violated
equal protection.
CLAIM SIX - Third Circuit and Supreme Court Limited EPA's
Use of Grant Conditions.
1, EPA's Cape May grant condition led to a Third Circuit
case, which EPA actively participated in. That case held that EPA
exceeded CWA authority, and was exercising authority over
people who are not directly subject to EPA authority.
2. That holding acts as a conclusive bar to EPA's imposing it
grant condition in any grant in the Third Circuit. The decision of
which predates EPA's grant condition on the RVRSA.
3. The Regional Administrator's grant condition imposed
on the RVRSA on 2/9/84, represents a failure to perform the
nondiscretionary duty created by the Third Circuit holding.
4. EPA's grant condition caused RVRSA members to pass
ordinances in support of a contract condition that fails to provide
explicit statutory authority and also violates the law of this
Circuit.
5. EPA was fully aware of these holdings, so its imposition
of the same condition on the RVRSA amounted to an intentional
constitutional discrimination aimed at causing plaintiff damage
and intense emotional distress.
6. Plaintiff asks the court for a declaratory judgment on this
claim.
CLAIM SEVEN - The EPA Grant Condition Violates an EPA
Regulation and Title VI.
1. EPA failed to perform the nondiscretionary duty in 40
CFR Ch. I, Sub. F, §30.600 (E), by requiring the RVRSA violate
52
this regulation by complying with its grant condition, after it
imposed a cuty to not violate the regulation.
2. Publishing this regulation in the annual release of the
federal register up to 1995, shows this was the prevailing
regulation that should have governed EPA's conduct.
3. EPA's "failure to comply with regulations is a fatal flaw
to administrative action"
4. Plaintiff as a third party beneficiary seeks to enforce this
regulation. Plaintiff also seeks compensatory damages for EPA's
intentional discrimination and intentional emotional distress.
5. The violation of this regulation represents a violation of
the principles in Title VI upon which this regulation and plaintiffs
alternative right to enforce this regulation are based.
6. The foregoing regulation provides a constitutionally
protected property interest that EPA's grant condition denies, thus
representing a denial of equal protection.
7. 1f plaintiff is foreclosed from enforcing this regulation
then the procedural safeguards to protect his interest are
insufficient to protect it, thus resulting in a due process violation.
8. Plaintiff asks the Court to declare plaintiffs rights on this
Claim.
PAGE 5
CLAIM EIGHT - Administrator / Regional Administrator Failed
to Comply with the CWA.
—_—
|. EPA's violation of a U.S. Supreme Court ruling that bars
using a grant condition without explicit statutory authority renders
the condition "void ab initio." Hence, EPA is subject to a damages
remedy, including extraordinary damages. Those violations are
recapped, as follows:
(a) Taking private property without paying compensation
contrary to Court of Claims holding, although EPA's conduct
forecloses compensation for a taking.
(b) 40 CFR 35.925-13(e) denies intended beneficiaries due
Process and equal treatment in violation of the V and XIV
Amendments.
(c) Regional Administrator failure to verify that Mr.
Hargrove's memo was within the limits of CWA authority.
(d) 40 CFR 35.925-8(b) and 35.925-13(e) exceeds the
statuory authority in 33 U.S.C. § 1319.
(e) The EPA exceeded Title VI authority by involving the
NJDEP in the review of plaintiffs grant waiver appeal.
(f) Classification "wetland lots" without legal authority.
(g) The Administrator ratified an equal treatment and due
process violation.
(h) That violation of equal protection represents a waiver
of EPA's sovereign immunity.
(i) Imposing the grant condition without explicit statutory
authority.
(j) EPA's conspiracy with the NJDEP.
(k) Violating the holdings of Cape May Greene.
(1) Violating 40 CFR Ch. I, Subpart F, §30.600 (E.
2. Not withstanding the foregoing reasons, EPA also failed
to perform the nondiscretionary duty in § § § 1316, 1317 and 1319
which requires identification, regulation and enforcement, not a
denial of a federal benefit that fails to comply with these statutes,
while it violated a regulation.
3.The grant waiver process denies plaintiff due process
since its procedural safeguards are insufficient to protect plaintiffs
third party right to connect to the sewer. The grant waiver process
subjects plaintiff to EPA's discretion as affected by its conspiracy,
instead of the explicit statutory requirements in §§§ 1316,1317
and 1319.
4.EPA's grant condition evinces a belief by the
Administrator tuat wetland lots are introducing pollutants into
publicly owned treatment works, since EPA's authority to deny
the effluent standard is limited to that reason. Hence, EPA
Regional Administrator failed to perform his nondiscretionary
duty in accordance with § § 1316 and 1317, which calls for the
identification of "new sources’ that will be subject to regulatory
guidelines and enforcement. Instead, he imposed a grant condition
that circumvents the nondiscretionary enforcement duties in §
1319.
5.Or, the Administrator believes that wetland lots increases
"nonpoint source" runoff pollution. Hence, denying connection to
the sewer, prevents construction in order to prevent the runoff,
which fails to perform the duty in 33 U.S.C. § 1316 that allows
classification and subsequent regulation and enforcement in
accordance with sections 1317 and 1319.
54
6. EP 4 believes that preventing connection to the sewer
prevents runoff pollution by preventing development of vacant
wetland lots. This theory fails to address the runoff from existing
homes built on wetland lots that are allowed to connect to the
sewer. Hence, the grant condition bears no relation to the
objective sought by treating members of the same class
differently, amounting to a denial of equal treatment.
= PAGE 6
7. EPA's failure to require home owners on wetland lots to
obtain a permit for the runoff that EPA considers damaging to the
waters of the United Stated represents a waiver of its right to
argue that said runoff is damaging to said waters. EPA's failure to
exercise its authority against these owners further proves the
denial of sewer service to vacant wetland lot owners was aimed at
taking private property under the guise of regulation.
8. 33 U.S.C. § 1365(a)(2) provides a waiver of immunity
to file an action against the Administrator and Regional
Administrator where there is alleged a failure to perform any act
or duty under this chapter which is not discretionary.
9. 33 U.S.C. § 1365(b) on notice, provides that an action
can begin with notification in the case of an action under this
section respecting a violation of sections 1316 and 1317(a) of this
title. Plaintiff moved in accordance with this «OVision.
Furthermore, notice was given in the manner prescribed by
regulation.
10. 33 U.S.C. § 1365(e) also provides a waiver of immunity
without the need for notice when an action is brought under
another statute. Plaintiff having brought this action under 42
U.S.C. § 2000d et seq., as well.
11. Plaintiff also requests the review contemplated by
citizen suit provision, APA, and the review contemplated by Title
VI, and any other applicable statute.
12. The Court must enforce the effluent standard applicable
to residential lot owners since to distinguish between owners of
vacant wetland lots versus developed wetland lots represents an
arbitrary discrimination that amounts to a constitutional denial of
equal treatment, and a deliberate denial of a federal benefit.
55
13. The statute of limitations is not a bar to this action,
since the EPA has waived its right to rely on the statute of
limitations, not withstanding the doctrines of estoppel,
equitable tolling, fraudulent concealment and continuing
violation also apply to all the defendants.
i4. Plaintiff seeks damages as provided by 33 U.S.C. §
1365(a(2) in the phrase “amount in controversy," and in
accordance with Title VI for plaintiffs compensatory damages, the
intentional discrimination, and plaintiffs emotional distress, as
provided by 33 U.S.C. § 1365(e).
CLAIM _NINE - Rockaway Township's Ordinance 54-IOOL
Denied a Federal Benefit.
1. Rockaway Township is a member of the RVRSA.
2. Rockaway agreed to comply with 40 CFR Ch. I, Subpart
F, §30.600 (E, as a member of the RVRSA, in order to get the
federal grant.
3. EPA's grant condition is a contract condition since it fails to
present explicit federal statutory authority that Rockaway could
act upon.
4. Rockaway pasved ordinance §54-IOOL in support of the
grant condition, which constitutes local action, since no federal
authority was provided to support Rockaway's actions.
5. Rockaway's passage of ordinance §54-IOOL to deny
wetland lot owners the right to connect to the sewer in support of
EPA's grant condition represents a failure to perform the duty
called for by 40 CFR Ch. I, Subpart F, §30.600 (E.
6. Rockaway Township violated a federal regulation that
preempts its ordinance, thus proving Rockaway violated federal
' law.
7. By violating the regulation and Title VI,
Rockaway Township violates NJSA 40A:48-2, thus exceeding the
authority in an enabling statute, which renders its ordinance "void
ab initio".
PAGE 7
8. Passing an ordinance that denied plaintiff the right to
connect to the sewer represents a breach of both; the duty
created by regulation, and the duty to protect the public.
9. Passing an ordinance that continues to affect plaintiffs
56
)
class to this date in violation of an enabling statute, Title V1
regulation, and their duty, represents a continuing violation.
10. Rockaway's intentional discrimination of a policy
Congress considers vital, amounts to a waiver of its affirmative
defenses in accordance with federal law.
11. Rockaway's passage of this ordinance represents a
violation of 42 U.S.C. 1983 since the town denied plaintiff equal
treatment and property rights protected by the Constitution.
12. Plaintiff makes Rockaway Township a party in order to
have this court declare the rights of the parties with respect to the
ordinance passed in support of a contract condition that fails to
provide explicit federal authority.
13. Rockaway Township knew this ordinance violated the
law, so it took extraordinary steps to conceal that its actions were
in support of local law.
CLAIM TEN - Rockaway Township Illegally Charged an
Assessment.
1. Rockaway provided plaintiff with sewer connection slips
to lead plaintiff to believe that he could connect to the sewer while
concealing the ordinance that would prevent connection.
2. Rockaway sold plaintiff a lot it knew was affected by that
ordinance.
3. Rockaway charged plaintiff an assessment though his lots
did not appear in the ordinances applicable to the area where they
are located.
4. State law provides for a refund of assessments when the
benefit for which they were paid was not provided.
5. Rockaway's planning board approved plaintiffs minor
subdivision to fraudulently conceal its illegal ordinance and
assessment.
6. State regulations preclude septic system within 100’ feet
of a sewer line. The regulation and grant condition prevents
development.
7. Upon plaintiffs application for building permits,
Rockaway made it appear that the grant condition was recently
imposed in order to conceal that said denial was based on
ordinance.
8. Rockaway's acts in furtherance of the grant condition and
it nonexistent assessment represent affirmative acts amounting to a
57
a waiver of its right to claim the protection of the statute of
limitations, res judicata, and claim preclusion in accordance with
federal law.
9. Plaintiffs N.J. freshwater wetlands exemption and Army
Corp of Engineer's fill permit have long expired, thus preventing
plaintiff from developing.
10. Plaintiff is entitled to damages for being denied the right
to build at that time.
11. Plaintiff asks the court to declare plaintiffs rights on
these issues
CLAIM ELEVEN - The Attorney General failed to perform their
duty.
1. The Attorney General of these United States failed to
perform his or her duty in accordance with E.O. 12250 by not
recognizing that Regulations 40 CFR 35.925-8(b) and 35.925-
13(e) are inadequate since they exceed EPA's statutory authority,
in whole or in part. The failure of which creates an implied
authority that does not exist.
2. The Attorney General failed to catch the fact that
regulation 35.925-13(e) violates federal law, thus exceeding
EPA's statutory authority.
PAGE 8
3. Attorney General's failure, has resulted in EPA claiming
implied authority to impose its grant condition, thus making the
Attorney General partially responsible for plaintiff and his class
being denied their federal entitlement.
4. The Attorney General's sovereign immunity is waived in
33 U.S.C. § 1 365(a)(2) citizen's suit section of the CWA, since
the Attorney General's failure to review the regulations in relation
to standing federal law has contributed to EPA's violation of the
Clean Water Act.
5. The Attorney General's conduct is subject to review
under the APA since the Attorney General failure to perform her
duty, has contributed to EPA's violation of law.
6. Plaintiff asks the Court to review this claim in
accordance with the APA.
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CLAIM TWELVE - Intentional Emotional Distress.
1. EPA, NJDEP and Rockaway has caused plaintiff severe
intentional emotional distress by acting in violation of federal law
in support of a grant condition that has denied plaintiff equal
protection of the law, in order to prevent him from developing his
lots.
2. Their deliberate violation amounts to an affirmative act
that waives their right to affirmative defenses to prevent a judicial
review.
3. Rockaway has contributed to plaintiffs severe emotional
distress by passing a local ordinance to deny plaintiff a federal
benefit contrary to a regulation that it was obligated to follow. This
deliberate violation is outrageous since it constitutes a denial of
equal protection. It requires plaintiff to bring an action against the
EPA, NJDEP and Rockaway, in order to show that neither EPA or
NJDEP has authority that Rockaway can rely on to jusflty its
conduct.
4. EPA created a procedure for grant waivers that included
Rockaway, RVRSA, NJDEP and finally the EPA. This procedure
is illegal since EPA was violating federal law to impose its grant
condition in the first place. This procedure was intended to cause
intense emotional distress in each applicant for a waiver, as
supported by the fact that the EPA negotiated denials of these
waivers with the NJDEP. Therefore, this procedure was designed
to deny the very waiver for which the procedure was created,
proving deliberate intentional emotional distress.
5. The deliberate denial of due process evinced by EPA's
conspiracy with NJDEP proves the procedure to vindicate
plaintiffs rights was inadequate, to protect plaintiff from this
conspiracy, thus denying plaintiff due process. This conspiracy
being extreme and outrageous.
6. EPA's conspiracy continues to this date, proving plaintiff
continues to be denied the right to connect, even if he were to file
another waiver. Plaintiff class being denied all profitable use of
their property while this conspiracy continues.
7. The conduct of EPA, NJDEP and Rockaway is of such a
deliberate nature that plaintiff has suffered intense emotional
distress in the form of anger, rage, frustration, severe headaches,
and other symptoms that include, but is not limited to fear for his
life for bringing this action, which has only added to plaintiffs
59
emotional distress.
8. Since EPA's conduct is outlined in a memo that was not
available to plaintiff or his class, constitutes a fraudulent
concealment of a due process and equa! protection. This
conspiracy tolls the statute of limitations. EPA and NJDEP's
conduct on this point is so outrageous that it amounts to an
affirmative waiver of every conceivable affirmative defense that
could be raised to block a judicial review of this conduct.
PAGE 9
DEMANDS
DEMAND ONE
Plaintiff asks the Court to review the foregoing claims in
accordance with the statutes on declaratory judgment, APA
review, the review contemplated by 42 U.S.C. 2000d et seq., and
whatever review is called for by the citizens suit section of the
Clean Water Act, as well as any other relief that is within the
court's power to grant, beside the zelief requested in the following
demands.
Any alternative request for relief that the court is not able to
grant that must be stricken should only affect the offensive relief
without its affecting the relief remaining in that demand.
Each portion of a demand is severable from the rest, so if
any is deemed offensive, then the offensive portion can be freely
stricken by the Court, while the remaining portion survives.
DEMAND TWO
Plaintiff asks the court to exercise its powers of mandamus
within the limits of its discretion as it applies to any violation.
Plaintiff asks the court to exercise its powers of mandamus
within the limits of its discretion as it applies to the relief
requested.
DEMAND THREE
Plaintiff asks the court to declare the rights of the parties
60
with respect to Rockaway Township's ordinance § 54-1 OOL, since
that ordinance represents local action that denies a federal benefit
in violation of a federal regulation that preempts the ordinance.
Plaintiff also seeks a declaration of his rights with respect to
the pendent claim of Rockaway charging an assessment for a lot
that does not appear in the assessment ordinance, and his right to
recover the assessment paid.
Plaintiff further asks the court to declare whether plaintiff is
entitled to prejudgment interest on the assessment paid, since the
assessment was part of a fraudulent concealment that would make
it appear as though plaintiff would be able to connect, in order to
have the statute of limitations run out.
DEMAND FOUR
Plaintiff prays the jury grant him an award of one million
dollars or whatever amount the jury deems appropriate for
Rockaway Township's intentional infliction of severe emotional
distress caused by Rockaway’s intentional denial of a federal right,
its breach of duty to the public, its violation of 42 U.S.C. 1983 and
2000d et seq., and for deliberately concealing material facts from
plaintiff over a prolonged period of time to run the statute of
limitations.
PAGE 10
DEMAND FIVE
Plaintiff prays the Court declare or render its findings with
respect to EPA, NJDEP, Rockaway Township, and Attorney
General failed to perform their duty, breach their duty, otherwise
violate federal law, and the Constitution as it applies to each
allegation, claim, and issue.
DEMAND SIX
Plaintiff prays the jury award him compensatory damages
from either the EPA, Rockaway, or NJDEP, individually or
61
collectively in accordance with the respective percentage of
culpability.
Plaintiff prays for the loss of profit from the sale of two
houses that would have taken place in 1986, in the amount of Two
Hundred and Sixty Thousand Dollars ($ 260,000.), plus the
recovery of out of pocket costs of approximately forty five
thousand dollars ($ 45,000). The percentage of liability to be
determined by the jury, or court, if this is not a proper jury issue.
Plaintiff prays the jury award him prejudgment interest at
the prevailing rate that is paid in this state or by the federal
government, for each of the intervening years that plaintiff has
been denied the use of the profit and his costs. This award to be
paid by the parties in accordance with the disposition of liability
in the preceding paragraphs.
DEMAND SEVEN
Plaintiff prays the jury award him compensatory damages
for severe intense emotional distress in an amount the jury deems
appropriate. The jury being asked to fix the percentage of liability
for the EPA and NJDEP. If the jury is not entitled to set the
percentage of liability, then plaintiff asks the court to set it.
DEMAND EIGHT
Since plaintiff is not entitled to bring a class action suit,
plaintiff prays for extraordinary damages in the amount of twenty
five million $25,000,000. dollars or whatever amount a jury
deems appropriate. These moneys are to be put into an interest
bearing trust fund that will be used to compensate individual lot
owners for damages beyond the compensation for a taking as it
applies to a grant condition that prevents sewer connection in any
grant provided by the EPA. Compensation; for intense emotional
distress will be limited to $ 5,000. and compensatory damages
will also be limited to $5,000. as well. Every claim will be
supported by a court order that reviewed the damages before the
foregoing claims are paid. Plaintiff or the executor of his estate
wil! review and approve each claim before it is paid. A reviewing
fee of six percent will to be paid from the trust fund for that
review.
Each owner seeking damages for EPA's taking is to be
62
advised of this trust and its terms in order that they may take full
advantage of it. The fund will terminate ten year after it is begun
with the remaining funds to revert to plaintiff or his estate.
PAGE 11
If this action is successful, it may foreclose the use of these
waivers in future actions, thus denying other injured parties the
opportunity to recover damages beyond that of a taking. Therefore,
plaintiff asks for this award to heal his injury, and by realizing
others affected by this condition need recognition of their injury in
order to heal.
DEMAND NINE
Plaintiff asks the Court to allow him to further amend his
complaint, after he retains an attorney, based on the outcome of the
motions that will result from this complaint. If plaintiff is able to
prove a prima facie case, then attorneys may be willing to handle
this matter on a contingent fee arrangement. Since plaintiff cannot
afford the estimated fees for dealing with this case, he is forced to
handle the matter pro se.
DEMAND TEN
Plaintiff asks the jury for an award of punitive damages
against the EPA, NJDEP, and Rockaway, either individually or
collectively, in any amount it deems appropriate for defendant's
intentional violations. If percentage of culpability is needed, then
plaintiff asks the jury or the court to determine the percentage of
culpability
DEMAND ELEVEN
Plaintiff prays the court award him legal fees for the attorney
that will be used to deal with this matter after plaintiff makes a
prima facie showing that he has been denied due process, equal
treatment and for defendants violation of 42 USC 1983 and 2000d
et seq. Plaintiffs request for attorney's fees is further supported by
42 USC 1988.
63
February 27, 1997
Nelson A. Fernandes
EXHIBIT A TO COMPLAINT
U.S.E.P.A.
DATE: APR 23, 1979
SUBJECT: Limited access interceptor sewers as they relate
to the Construction Grant Program in New Jersey
FROM: Robert W. Hargrove, Soil Conservationist
NJ/PR Section, 2-WA-EI
TO: Daniel Sullivan, Chief
EIS Preparation Branch
THRU: Stephen Y. Arella, P.E., Chief
NJ/PR Section, 2-WA-EI
Limiting access to intercepting sewers is a complicated issue
because of the broad latitude for varying legal Interpretations. If
suitable controls could be implemented, it could be of great help to
prevent Induced growth in environmentally sensitive areas.
This paper will deal with an overview of the situation. Court cases
and New Jersey's State regulations and statutes will be explored.
EPA options as they pertain to this subject will be explained.
These options will be further illustrated by case studies In several
EPA regions.
Sewage Disposal as a Public Service
The question of whether or not sewage disposal is a public service
is an importent consideration in determining the legality of limiting
access. One important aspect is the source of funds. If, as in the
past, the funds arise from local taxes, it is likely to be considered a
public utility and limiting access would be difficult. However,
since passage of the Clean Water Act, most of the design and
construction of wastewater treatment facilities are financed by
Federal grants. The remainder comes from state grants and bond
issues which are recovered through user charges. Theoretically,
facilities built using such financial backing could limit sewer hook-
ups.
The issue of sewage disposal as a public service was also
65
addressed in the courts. In Cloyes vs. Delaware Township it was
noted "Sewage disposal is not one of the public services anciently
furnished by local governments, nor Is it uniformly so furnished
today." This was further substantiated in Pleasure Bay Apartments
vs. City of Long Branch, "Neither statutory nor case law impose;
a mandatory duty on a municipality to furnish municipal service
for disposal of garbage or other wastes:" These cases deal
primarily with a municipality not being required to provide such
service if none was provided in the first place.
New Jersey State Law
New Jersey's Sewerage Authority law enables counties or
municipalities, either alone or in combinations, to establish a
sewerage authority. Sewerage authorities are empowered to
construct, operate and maintain facilities to collect, treat and
dispose of sewage. The law specifies that these authorities have
the power, "to enter into any and all contract, execute any and all
instruments, and do and perform any and all acts or things
necessary, convenient or desirable for the purpose of the sewerage
authority or to carry out any power expressly given in this act."
The question of allowing hook-ups rests with both the authority
and the municipalities. The authority is free to reasonably fix the
terms and conditions oft service. The key word in this statement
seems to be reasonably. A case from Arizona is a good example of
this. In Travaini vs. Maricopa County the county concluded that
the county "having installed and maintained a sewer line past the
property in question, the city is thereafter required to allow any
abutting property owner to use said sewer subject only to
reasonable limitations." The "reasonable limitations" in this case
being the capacity of the line.
The Arizona case deals with a collection system in a populated
area, not an interceptor away from the population, and quite
possibly in a sensitive environmental area.
It should be noted that in the case of Southern-Burlington County
NAACP vs. Township of Mt. Laurel the courts have concluded
that limited access interceptors can not be used as a means of
exclusionary zoning.
i=w Jersey law states that sewerage authorities can be formed.
xe only stipulztion concerning hook-ups is the abatement of
pollutioi and related health hazards. Another consideration
stemming from EPA's cost effectiveness guidelines is that hook-
ups may be necessary for a system to be economically feasible.
State law does give to the authority the ability to enter into
contracts. These contracts are primarily with municipalities for
sewage collection and disposal. It seems to imply that they can also
enter into contracts with EPA through grant agreements. These
contracts stand on the same footing as contracts between natural
persons or municipalities.
New Jersey Septic System Regulations
The Septic System Regulations of New Jersey also affect the
issue. The state will not authorize the building of a septic
system on a property If a sewer line is within 100 feet of it.
With the exception of the general guidelines for sewer hook-
ups, the sewerage authority determines sewer use.
EPA Authority
Protection of environmentally sensitive. areas is mandated by
Federal policy. Certain actions can be taken to promote this policy
with respect to the Construction Grants Program. The first and
easiest mechanism is. to limit the capacity of the system to exlude
development in environmentally sensitive areas. This is an attempt
to limit the number of hook-ups to the system to areas where
growth will not impact critical areas.
There will be some small projects that can not be limited with
. fespect to carrying capacity because of minimum Sizing of unit
processes for treatment. Projects such as these might require grant
conditions. The conditions will have to be met in order to insure
receipt of a. 201 grant.
The subject of grant conditions was addressed in PRM 75-26
which dealt with mitigating secondary impacts in the Construction
Grants Process. The Regional Administrator can withhold of Step
and 3 grants until effects, or agrees to conditions in the grant
document requiring actions to minimize the effects.
Some actions to mitigate these secondary effects include, but are
not limited to: phasing and orderly extension of sewer service,
project changes improved land use planning, and sewer use
restrictions. It goes on to say that conditions on a grant must be
reasonable and the applicant must demonstrate "good faith" and be
moving toward mitigative action before the grant is awarded.
67
Actions that can be taken if the applicant refuses to abide by the
grant agreement are: withhold payments, refuse to process
subsequent grant applications from the municipality, refuse to
approve grants for future phases of the projects, enter an
injunction against the grant recipient, suspend project work or
terminate the grant and recover unexpended EPA funds.
The new regulations (9/27/78) on Municipal Wastewater
Treatment Works also contain provisions for conditions on grants.
Section 35.935-16 on page 44073 states that "the Regional
Administrator shall not pay more than 80% of the Federal-share of
any Step 3 project unless he has approved the grantee’s sewer use
ordinance." This means 15% or more of the total project costs
could be held if this is condition wasn't met. However, since this
process now entails just a review of the ordinance for compliance
with the regulation this may be of minimal value to us at this time.
Case Study Evaluation
Case studies from EPA regions show the various techniques that
a can be used to mitigate adverse impacts in the Construction
Grants Program.
In 1975 a project from Region I on Block Island, Rhode Island
could have encroached on environmentally sensitive areas. That
region first scaled down the project. Then a grant condition was
imposed to accept no new hook-ups from wetlands in accordance
with the State law.
That same Year a project from Region III in Falling Creek, VA
which involved the eutrophication of reservoirs and induced
secondary effects on Swift Creek Reservoir. Plant size was
reduced and the Step II grant was conditioned on the development
of a Swift Creek Watershed Management Plan.
In 1975 a Region VIII project in Renner, SD was leading to new
development on a floodplain. A grant condition, based on the
county floodplain ordinance, that said no new hook-ups from the
100 year floodplain. The Region also recommended that capacity
be limited to existing population plus a moderate increase.
In 1974 a Region IX project in Fairfield, CA included pressure to
increase industrial and low density residential land on or near
Suisun Marsh and pressure to develope agricultural land with
.. Yacts on air quality and wildlife. The Step 3 grant was
conditioned to not provide service to new development
68
immediately adjacent to the marsh based on pending State
protection legislation..
In 1976 a Region X project in North Fremont, SD was leading to
pressures to increase development in environmentally sensitive
areas. These areas included fishing and wildlife management areas.
The project was altered to have four small sub area facili.'es
instead of one large Regional plant with long interceptors. The
Step 2 and 3 grants were conditional on County compliance with
State law requiring development of growth controls and a
comprehensive land use plan.
Summary
Case studies show that EPA can and does use grant conditions and
project changes to limit development due to funded projects. It
should be said that if it is possible to base the grant condition on a
state or local law then do it. This will take a lot of heat for such an
action away from falling directly on EPA. Those laws could
include floodplain ordinances (Block Is., RI) or complying with
State requirements for land controls (North Fremont,’ SD). Such
conditions could be based on Federal law but this tends to foster
the public opinion that the Federal government is just trying to
control 'local zoning. State or local laws that apply to such
situations should be added ix to direct the public rage away from
EPA, when possible.
Limited access interceptors is a question that has never formally
been answered in the courts. to do so might require upwards of 3-4
years to make it through all appeals. The ‘question is not entirely
addressed in New Jersey State law either. The policy of protecting
sensitive environmental areas can be fostered by changing the plan
or imposing grant conditions. EPA has done this in the past and an
analysis t-f these cases show how such problems can be handled in
the future.
Recommended Regional Policy Options
1) Grant Conditions with 3rd party enforcement after grant
expiration.
2) 208 plan inclusion of model local sewer use ordinance and
adoption by local municipalities.
3) Approval of Sewer Use Ordinances by EPA.
4) Constraining service. agreements between MUA's and member
municipalities.
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EXHIBIT B TO COMPLAINT
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DATE MAY 251979
SUBJECT Grant and Permit Conditions to Restrict Sewer
Hookups in Environmentally Critical Areas
FROM _ Daniel Sullivan, Chief
EIS Preparation Branch
TO Conrad Simon, Director
Water Division
Scope of the Problem
EPA's funding of wastewater treatment works through the
Construction Grants Program has been criticized for not
adequately discouraging growth in environmentally sensitive
lands (i.e. floodplains, wetlands, and significant wildlife habitats).
In the past, the Agency's policy has been to eliminate any capacity
in proposed systems that would serve these sensitive lands.
However, in several cases this mitigating measure has proven to
be inadequate to curb unsound growth.
Issue
Should EPA-Region ii begin to affix special conditions to Step 2
and 3 construction grants, 208 areawide plans, and 402 permits to
prohibit development in environmentally critical areas?
Salient Factors
The September 27, 1978 Construction Grants Program Rules and
Regulations specifically encourages the use of grant conditions
restricting sewer hookups to protect environmentally sensitive
land from new development. However, because some of the legal
complexities associated with such grant conditions, Region II has
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never exercised this control. We now have several Ideal examples
where such conditions are both appropriate and easily justified.
Unfortunately, merely limiting the size of wastewater treatment
facilities does not adequately protect sensitive areas. An excellent
example of how a reduction in facilities capacity has a very limited
influence on where housing and sewer hookups can occur Is the
proposed Cape May Region project. The EPA had reduced the
size of the proposed facilities to specifically exclude wetlands,
flood hazard areas, and significant wildlife habitat areas from
development. Yet, an application for a 250 unit residential
development (in the flood hazard area - see attached Map 1) is
currently before the New Jersey Department of Environmental
Protection. Discussions with DEP personnel reveal that the
developer intends to rely on the proposed regional- sewer system
to satisfy the wastewater treatment need of the proposed housing
project.
a
Major Actors
1. USEPA-Region II (RA, WDD, RC)
2. U.S. Fish and Wildlife Service
3. New Jersey Department of Environmental Protection
4. _ Loc-al Municipalities
5. 208 Agencies
6. Natural Resources Defense Council
7. American Littoral Society
8. Na;tional Wildlife Federation
Political Considerations
Grant conditions of this type have been used in other regions but
have relied heavily upon State Law for their enforcement (see
Attachment |).New Jersey State Law does not adequately protect
environmentally sensitive areas primarily because federal
regulations encompass more types of sensitive areas. However,
there are strong statements in the New Jersey Water Pollution
Control Act (NJWPCA) Reguiations which mandate conformance
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of future 201 grants with applicable 201, 208 and 303 plans.
EPA has a clear mandate in law, regulation, executive orders and
EPA Policy (see Attachment 2) to protect the following critical
areas:
|. Significant Habitats of Wildlife, including Rare and
Endangered Species Habitats - Endangered Species
Act and Fish and Wildlife Coordination Act
2. Floodplains - Executive Order 11988
3. | Wetlands - Executive Order 11990
We also have some rather strict policies on protection of prime
agricultural lands (EPA Policy Statement - September 26, 1978)
and less strict policies on other sensitive areas, such as steep slope
areas and unique vegetational communities.
There- are a number of Influential national interest groups that
have been actively prodding EPA to apply such conditions.
Among these are:
1. Natural -Resources Defense Council
2. American Littoral Society
3. National Wildlife Federation
In addition, the U.S. Fish and Wildlife Service has also expressed
their opinion that grant conditions of this type should be used to
protect the unique ecological nature of the Cape May Region.
: a 3
Background
EPA-Region II has been reticent in applying such conditions in
| the past for several reasons. Most New Jersey facility planning
grants are given to Municipal Utility Auth. (MUAs) established
| through State Law. Some questions have been raised as to whether
|
or not an MUA can accept * condition which affects land use
controls and, If they can, whether the condition is enforceable
' against its member municipalities The NJSA 40:14A-23 (see
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FN
Attachment 3) appears to permit the MUA to accept such
conditions. Another frequent objection to the use of the grant
conditions has been that the duration of the enforcement of a grant
condition expires at the end of the grant period. However, since
many of our grants are phased, the applicability may well be
extended for considerably longer period than the Initial grant.
Admittedly, limiting access to interceptors or collection Systems
via grant conditions themselves will not guarantee better iand use
planning. However, it is an essential element of a multi-proaged
approach to resolving this problem.
The NPDES Proposed Revision of Existing Regulation published
in the August 21, 1978 Federal Register requires discharge permits
to be consistent with the reflective of the Clean Water Act and any
appropriate Federal Executive Orders. It also states that permits
should include more stringent requirements where necessary to
insure consistency with areawide waste treatment management
(208) plans (AW'TMP). Many existing permits are expiring in the
near future and, prior to reissuance, considerable effort is
anticipated to assure consistency with both 201 facilities plans and
208-funded AWTMP’s
Recommendations
Based on the May 24 briefing on the Cape May regional project,
the following represents my understanding of the direction set by
Eckardt C. Beck. The activities proposed can and should be
initiated concurrently and are not necessarily contingent upon the
success of the other parts for their effectiveness.
First, where the review of 201 facility plans (including EASs)
identifies environmentally sensitive areas requiring protection,
grant conditions should be affixed specifically constraining sewer
hookups. We anticipate that detailed maps of the facility planning
area will be used to identify sensitive areas and existing discharges
(I.e. homes and subdivisions) There are two New Jersey 201s In-
house that are excellent examples of the need for such conditions:
Jakes's Branch Interceptor and Stafford Township Collection
System.
we
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The proposed Cape May Region Wastewater Treatment Facilities
Plan requires a slightly different approach. A negative declaration
was issued on January 25, 1979. The use of a special conditlon
restricting sewer hookups represents a substantial change from the
statements made in the negative declaration. Once the facility plan is
revised to show which specific lots will Le served by the proposed
facility, we will issue an addendum to the negative declaration
specifically detailing our intent to use grant conditions. The
addendum will allow far a 30 calendar day comment period.
Second, the 208-funded areawide waste treatment management
plans (AWTMP) for these areas should be required to reflect the
need to protect these sensitive areas. In order to accomplish this
in the Cape May Region, the 208 agency should adopt the revised
201- plan as part of the AWTMP. No Step 3 grant will be awarded
to the CMCMUA until this portion of the AWTMP is approved by
EPA. We intend to send a letter to the Cape May 208 agency
informing them of this requirement.
Third, the Permits Branch, In coordination with Regional Council,
should develop permit conditions to reflect sewer hookup
restriction which are detailed in the special grant condition for the
Step 2 201 grants. Permits 8ranch should also develop a strategy
for indentifying future permit violations, e.g., if a
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