# Petition for Writ of Certiorari — Fernandes v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1201%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 869 ## Text 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. 1/27 (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. 2/27 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 4/27 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). 5/27 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). 6/27 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). 7/27 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. 8/27 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 13/27 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 : < “ ) 3 i % , 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 % a | + 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 $ 24 NS s 4 3 * #8 % a | SURO te Pras iy hoe? iE ARAN b Batt ER nd balk 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 Stunt be eee eceaaaara ts oP Geruiiea aie a: caats SF ar RAY RST Oe ae eee ee a 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: ® i? 3 _ & oS La. 3 ae 3: Hg ood B es ey RRR Irae Boh 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 E [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1201%3A1. Public record. Not legal advice.