Petition for Writ of Certiorari — Robinson v. United States

NO.

IN THE

Supreme Court Of Che Anited States

OCTOBER TERM 1992

ROY B. ROBINSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Sidney Farr *

1300 Main, Suit 1700

Houston, Texas 77002

713/658-8171

* Counsel of Record

James E. Ross

3209 Montrose Blvd.

Houston, Texas 77006

Attorneys For Petitioner

Alpha Law Brief Company ® Houston, Texas @ (713) 981-9000 © 1-800-981-9001

i

QUESTION PRESENTED

Whether the final judgment on the merits in an

action for declaratory and related coercive relief is res

judicata of a compulsory counterclaim that the defendant

failed to assert in that action.

(A

il

LIST OF ALL PARTIES TO THE PROCEEDING

All of the parties in the United States Court of

Appeals for the Fifth Circuit are listed in the caption.

ill

TABLE OF CONTENTS

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STATUTES AND REGULATIONS INVOLVED ... 2

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REASONS FOR GRANTING THE WRIT ........ 4

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TABLE OF AUTHORITIES

Cases

American Mills Co. v. American Surity Co.

Se Ms PO Ae eh Chae ee ERE OS

Crutcher v. Aetna Life Ins. Co., 746 F.2d

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Dillard v. Security Pacific Brokers, Inc.,

Sod Fae Grr, CC, Be) bs se ew ss

Federated Dept. Stores, Inc. v. Moitie,

ek SE es Ae a ao a ee ee es

Horn &. Hardart Co. v. Nat’l. R.R. Passenger

Corp., 69 F. Supp. 1258 (D.D.C. Cir. 1987) ..

Horn &. Hardart Co. v. Nat’l. R.R. Passenger

Corp., 843 F.2d 546 (D.C. 1988)..........

In-Sink-Erator MFG. Co. v. Waste King Corp.,

346 F.20, 246, (7 Th Cir, 1965) . 2. cc ees

Syril v. Knoll International 748 F.2d

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SECONDARY AUTHORITIES

NO.

IN THE

Supreme Court Of Che United States

OCTOBER TERM 1992

ROY B. ROBINSON,

Petitioner,

Vv

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App. la) is

unreported. The district court gave no opinion separate from

its judgment, which is likewise unreported (App. 3a).

Neither did the district court in the earlier related declaratory

judgment action, but it did make findings and conclusions

(App. 8a) ancillary to its judgment (App. 7a).

BASIS FOR JURISDICTION

The judgment of the court of appeals was entered on

April 8, 1993 (App. 2a). A timely petition for rehearing was

denied on May 3, 1993 (App. 23a). This Court has

jurisdiction to review the judgment under 28 U.S.C. §

1254(1).

2

STATUTES AND REGULATIONS INVOLVED

This case involves 28 U.S.C. §§ 2201 and 2202, 33

U.S.C. §§ 403, 407, 1311(a), 1319(b), 1344(s)(3),

1344(s)(5) and 33 CFR 323.2. It also involves Rules 12(b),

13(a), and 16(e) of the Federal Rules of Civil Procedure.

These authorities appear verbatim in the appendix, beginning

at App. 25a.

STATEMENT OF THE CASE

In 1977 under 33 U.S.C. §§ 403 and 1311 the United

States Army Corps of Engineers issued Roy Robinson a

permit to dredge a boat slip on wetlands he owned riparian

to Dickinson Bayou in Galveston County, Texas (89 R. 127;

84 R. 85, 100, 167 and unnumbered record page between 10

and 11).” In 1978 a dispute came up about whether

Robinson had violated that permit by dredging a slip outside

the bounds of the permit (84. R. 77-79, 167). To resolve the

protracted dispute Robinson sued the government in 1984 in

the federal district court in Galveston (Civil Action G-84-35)

for a declaratory judgment that he hadn’t violated the 1977

permit and for a mandatory injunction directing the Corps to

grant him another permit to maintenance dredge the channel

leading up to the disputed slip and to dispose the dredge spoil

in navigable waters (84 R. 6, 11, 182, 187). Although the

government filed no answer or counterclaim, it did file a

motion under Rule 12(b) of the Federal Rules of Civil

Procedure, requesting dismissal of the case for lack of

jurisdiction of the subject matter and for failure to exhaust

administrative remedies, all couched in the alternative as a

“"84 R" refers to the record in Robinson's declaratory judgment

action filed in 1984, and "89 R" refers to the government’s injunction suit

(this case) filed in 1989.

3

motion for summary judgment (84 R 229-234). The district

court expressly rejected the Rule 12(b) grounds alleged for

dismissal and overruled the government’s motion for

summary judgment (84 R 196-199).

In 1986 after trial on the merits under a joint pretrial

order signed by the attorneys for both parties (84 R 229-234)

the district court rendered judgment that Robinson had

violated the permit and so dismissed his suit (84 G. 255,

256). According to the supporting findings and conclusions

the violation was that Robinson had dredged a slip in an area

not included in the permit (84 R. 256, 257).

In 1989 the government filed the present action (G-

89-298) in the same federal district court under 33 U3... §

1344(s)(3) and (5), authorizing suit for violation of a

dredging permit, and 33 U.S.C. § 1319(b), authorizing suit

for violation of a spoil discharge permit (84 R. 1). Besides

those pleaded statutes the district court also had original

jurisdiction over this action under 28 U.S.C. § 1345 and 33

U.S.C. §§ 403, 406 and 1311(a). The complaint prays that

Robinson be prohibitively enjoined from any further dredging

and mandatorily enjoined to restore the illegally dredged

wetland area and that he be fined $10,000 for each day of

violation (89 R. 12). The averred basis for this relief was

the 1986 judgment in the earlier suit (89 R 8, 9).

Robinson’s answer included the affirmative defense

that same 1986 judgment barred the government from

bringing the present action, because that earlier judgment

was res judicata of the government claims (89 R 10-21).

The basis alleged for this proposition was that the

government’s causes of action to enjoin the dredging and

impose a fine were compulsory counterclaims in the first suit

under Rule 13(a) of the Federal Rules of Civil Procedure,

because they were based on the same occurrence as the

4

claims that Robinson asserted in that first suit.

Consequently, Robinson contended that the government was

required to assert those enforcement claims, if ever, in that

earlier declaratory judgment action (89 R. 20).

Nevertheless the district court rendered judgment in

this second suit mandatorily enjoining Robinson to restore the

wetland area he had improperly dredged (App. 3a). Ina

very short opinion without elaboration the court of appeals

affirmed the district court’s judgment (App. la).

REASONS FOR GRANTING THE WRIT

This case presents an important question never

determined by the Supreme Court about a diametric

conflict between the federal declaratory judgment statutes

(28 U.S.C. §§ 2201 and 2202) and Rule 13(a) of the

Federal Rules of Civil Procedure. The question is

whether a final judgment in an action for declaratory

relief based on 28 U.S.C. § 2201 and related coercive

relief not based on 28 U.S.C. § 2201 is res judicata of a

Rule 13(a) compulsory counterclaim, which the defendant

failed to assert in the declaratory judgment action.

This is a little case but a big question. In a simple

fact situation it gives the Court a chance to resolve a clear

conflict between a federal statute and a federal rule, which

will probably come up hereafter in all kinds of different

cases. There is no conflict between the decisions of different

circuits, because the Fifth Circuit’s decision here seems to be

the first to decide the issue. However, there is certainly a

conflict in principal between the opinion of the district court

in Horn &. Hardart Co. v. Nat’l. R.R. Passenger Corp. , 69

F. Supp. 1258 (D.D.C. Cir. 1987) and the Fifth Circuit’s

decision in this case.

5

Unfortunately, neither the court of appeals nor the

district court wrote an opinion that went into the merits of

this question. Nevertheless, the petitioner Robinson has

consistently maintained both in the district court as well as

the court of appeals that the 1986 judgment of the district

court in Roy B. Robinson v. United States of America (G-

84-255) operates as res judicata to preclude the government

from obtaining an injunction in the present action, which was

not filed until 1989 (G-89-298). The rejection of that

contention by both of the lower courts was serious error,

which has obviously affected the outcome of the litigation so

far.

“For a prior judgment to bar an action on the basis of

res judicata, the parties must be identical in both suits, the |

prior judgment must have been rendered by a court of

competent jurisdiction, there must have been a final judgment

on the merits and the same cause of action must be involved

in both cases . . . [T]he principal test for comparing causes

of action is whether the primary right and duty or wrong are

the same in each action." Dillard v. Security Pacific

Brokers, Inc., 835 F.2d 607, 608 (Sth Cir. 1988). These

basic criteria are probably accepted in all courts.

The present case clearly meets the first three of the

four tests just recited. But what about the fourth test? Was

the same cause of action involved in both Robinson’s 1984

declaratory judgment suit (G-84-35) and the government’s

1989 injunction suit (G-89-298)? | G-84-35 was Robinson's

suit for a judgment (1) declaring that he hadn’t violated his

1977 dredging permit by digging an unauthorized slip

without authorization of the Corps and (2) mandating the

Corps to grant him a permit to maintenance dredge the

channel to that slip and dispose of the dredging spoil (84 R.

187, 182). The government filed no counterclaim in that

action, in which after trial on the merits the district court

6

rendered judgment that Robinson had violated the permit and

accordingly dismissed the case (A 7a). The government

filed the present action (G-89-298) to prohibitively enjoin

Robinson from further dredging the slip and channel and to

mandatorily enjoin him to restore the slip to its original state

(R. 12). The government’s claim asserted in this case is

obviously not the same as Robinson’s claim in the first case,

which the G-84-35 judgment expressly adjudicated. So why

should the G-84-35 judgment be res judicata of the G-89-298

claim for an injunction? Because Rule 13(a) of the Federal

Rules of Civil Procedure extends the scope of res judicata to

preclude litigation in a second suit not only of matters that

were expressly raised and adjudicated in the first suit

between the same parties, but also matters that should have

been raised and adjudicated in the first suit.

"A final judgment on the merits of an action

precludes the parties or their privies from relitigating issues

that were or could have been railed in that action."

Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398

(emphasis supplied).

In pertinent part Rule 13(a) of the Federal Rules of

Civil Procedure provides:

"(a) Compulsory

Counterclaims. A _ pleading

Shall state as a counterclaim

any claim which at the time of

serving the pleading the pleader

has against any opposing party,

if it arises out of the

transaction or occurrence that

is the subject matter of the

opposing party’s claim and

does not require for its

adjudication the presence of

q

third parties of whom the court

cannot acquire jurisdiction."

(emphasis supplied).

While the rule doesn’t expressly say so, the legal

consequence of the government’s failure to assert a

compulsory counterclaim in the first suit is that the

unasserted counterclaim is merged into the judgment in the

first suit, so that first judgment is res judicata that the

government’s unasserted compulsory counterclaim has been

denied. Dillard v. Security Pacific Brokers, Inc., 835 F.2d

607, 608 (Sth Cir. 1988); Crutcher v. Aetna Life Ins. Co.,

746 F.2d 1076 (Sth Cir. 1984). See also Advisory

Committee Note 7 to Rule 13a, citing American Mills Co. v.

American Surety Co., 260 U.S. 360.

The government’s causes of action for an injunction

and fine were compulsory counterclaims in G-84-35, because

they arose out of the same occurrence as the plaintiff

Robinson’s claims for a declaratory judgment that he hadn’t

violated his dredging permit and for a mandatory injunction

ordering the Corps to issue him a maintenance dredging

permit. Therefore, even though those compulsory

counterclaims weren’t asserted in G-84-35, they’re barred by

res judicata and Rule 13(a) from being asserted in this later

action. Consequently, Rule 13(a) required the district court

to dismiss the government’s complaint in this case.

But this dismissal mandate of the federal \rule runs

head on into 28 U.S.C. § 2202, which says:

“Further necessary or proper

relief based on a declaratory

judgment or decree may be

granted, after reasonable notice

and hearing, against any

8

adverse party whose rights

have been determined by such

judgment."

Under that statute any party to a declaratory judgment

may bring a subsequent action (or at least a subsequent

motion in the same action) for any appropriate relief

warranted by the declaratory judgment. That includes claims

that the defendant could have asserted, but didn’t, in the

declaratory judgment action itself. So which controls? The

federal rule, which says the government can’t bring this

second suit for an injunction or the federal statute, which

Says it can.

According to one circuit the above statute authorizes

the defendant in a suit for declaratory judgment only to

prosecute in a later suit a claim based on the declaratory

judgment, which in the absence of that statute would be

buried under the judgment by res judicata. Horn &. Hardart

Co. v. National R.R. Passenger Corp., 843 F.2d 546, 549

(D.C. Cir. 1988). However, if in addition to a declaration

of rights the complaint in the first action requests "coercive

relief," then the Horn court of appeals acknowledged without

considering or deciding that the judgment in the first case

might be res judicata of any counterclaim arising out of the

same transaction as the principal claim involved in the first

suit, which the defendant failed to assert in that earlier

action. Horn &. Hardart Co. v. National R.R. Passenger

Corp. , 843 F.2d 546, 549 (D.C. 1988). The opinion of the

Horn district court was stronger, reasoning that res judicata

would bar such a counterclaim unless the defendant

succeeded in obtaining dismissal of the first case by a Rule

12(b) motion. Horn &. Hardart Co. v. Nat'l. R.R.

Passenger Corp., 659 F. Supp. 1258, 1265 (D.D.C, 1987).

9

In this connection, comment d of section 33 of the

Restatement (Second) of Judgments (1982) says:

"Pleaders sometimes interpolate

declaratory prayers redundantly

in standard actions, but this

should not produce differences

in the res judicata

consequences of those actions.

Thus a pleader demanding

money damages may also ask

for a corresponding

declaration. For res judicata

purposes the action should be

treated as an adversary

personal action concluded by a

personal judgment with the

usual consequences of merger,

bar, and issue preclusion. The

same applies to a prayer for a

declaration which would be the

substantial equivalent of a

judgment of _ rescission or

reformation. So also an action

to adjudicate interests in

property, such as an action to

quiet title, or to establish a

status such as divorce, may be

cast in declaratory form. This

should not alter the res judicata

effects of the judgments."

The holding in Horn was that Rule 13(a) and res

judicata didn’t apply to the facts of that particular case,

because the defendant in the first Horn case never filed an

answer or other pleading but instead only filed a Rule

10

12(b)(6) motion to dismiss for failure to state a claim, which

was granted. Both Horn courts held that such a motion is

not a “pleading,” that Rule 13(a) requirements for

compulsory counterclaims apply only to pleadings, and

therefore that Rule 13(a) didn’t apply. By contrast the

district court in the first Robinson case rejected the

government’s Rule 12(b) motion to dismiss (84 R 196-199)

following which the case was tried and adjudicated on the

merits under a joint pretrial order signed by the attorney for

the government as well as the attorney for Robinson. (84 R

229-234; 84 G 255, 256).

Under Rule 16(e) of the Federal Rules of Civil

Procedure the pretrial order "shall control the subsequent

course of the action." A pretrial order is a pleading. Syrie

v. Knoll International 748 F.2d 304 (Sth Cir. 1984); In-Sink-

Erator Mfg. Co. v. Waste King Corp, 346 F.2d, 248, 251

(7th Cir. 1965), cert. denied 382 U.S. 835.

Therefore, while the Horn decisions don’t apply, but

the rationale in the Horn district court opinion does. So also

does Rule 13(a). It’s apparent from the latter opinion that

when a suit for declaratory judgment is combined with a

claim for coercive relief, then the ordinary rules of res

judicata and compulsory counterclaim apply, and 28 U.S.C.

§ 2202 don’t apply. That 1987 opinion also noted that the

Horn action "seems the first federal case to confront directly

the issue." Horn &. Hardart Co. v. Nat’l. R.R. Passenger

Corp., 659 F. Supp. 1258, 1265 (D.D.C, 1987). However,

the Horn courts didn’t need to decide the issue, because the

first Horn action for declaratory and coercive relief was

dismissed under Rule 12(b)(6) for failure to state a claim.

In the first action brought by Robinson, he not only

requested a declaratory judgment that he hadn’t violated the

dredging permit, but he also asked that the Corps be ordered

1]

to issue him a maintenance dredging permit. The latter is a

request for coercive relief.. That being so, the ordinary

rules of res judicata and compulsory counterclaim should

apply to that suit for declaratory judgment. Since Robinson

asked for coercive relief in the first suit, the government’s

claim for an injunction against Robinson was a compulsory

counterclaim in the first suit. Because it wasn’t asserted in

that action, it’s barred by res judicata from assertion in this

action. If that’s not the law, then it should be; and this is the

Court and this is the time to make it the law. The buck

stops here.

CONCLUSION

For the reasons given, the petition for certiorari

should be granted.

Respectfully submitted,

Sidney Farr *

1300 Main, Suite 1700

Houston, Texas 77002

713/658-8171

* Counsel of Record

James E. Ross

3209 Montrose Blvd.

Houston, Texas 77006

Attorneys For Petitioner

APPENDIX

la

APPENDIX

U.S. COURT OF APPEALS

FILED

APR 08 1993

RICHARD E. WINDHORST, JR.

CLERK

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-7360

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROY B. ROBINSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(CA-G-89-298)

2a

Before REYNALDO G. GARZA, WILLIAMS, and JONES,

Circuit Judges. '

PER CURIAM:

Having carefully studied the briefs and contentions of

the parties in light of applicable law, the court finds no

reversible error of fact or law in this case. The judgment of

the district court is accordingly affirmed. See Fifth Circuit

Local Rule 47.6.

1. Local Rule 47.5 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession." Pursuant to that Rule, the court has

determined that this opinion should not be published.

3a

|

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

ENTERED

MAY 12 1992

Jesse E. Clark, Clerk

By Deputy: /s/ illegible

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

UNITED STATES OF §

AMERICA §

VS. § CIVIL NO. G-89-298

ROY B. ROBINSON §

ORDER

Before the Court is the application filed by the United

States of America seeking injunctive relief against Roy B.

Robinson, Defendant. The Court, having considered the

application is of the opinion that it should be, and it is

hereby, GRANTED.

The Court finds that Defendant has destroyed

wetlands as a result of unauthorized dredging activity on and

adjacent to property owned by him in Galveston County,

more particularly described as Lots 1A, 2 and 2A in Block

87 of the San Leon Farm Home Tracts. The area destroyed

by Defendant is particularly illustrated as the "barge slip" on

the drawing attached hereto as Exhibit A, incorporated by

reference herein.

4a

The Court further finds that an injunction should issue

to permanently enjoin Defendant from any further work or

discharge in the navigable waters and the wetlands of the

United States located at and adjacent to his property, and

further to direct Defendant to restore the wetland area

illegally dredged and filled to its original condition.

It is, therefore, the ORDER of this Court that

Defendant be, and he is hereby, PERMANENTLY

ENJOINED from any further work or discharge in the

navigable waters or wetlands of the United States located at

or adjacent to his property as hereinabove described.

It is further ORDERED that Defendant be, and he is

hereby, DIRECTED TO RESTORE the wetland area found

by this Court to be illegally dredged and filled, to its original

condition and elevation.

It is further ORDERED that the fill material to be

used by Defendant to restore the area to its original

elevations shall consist of clean loam material, as that term

is recognized in the industry to mean a loose soil of mixed

sand, clay, and silt, free from any debris or contaminants of

any kind.

It is further ORDERED that Defendant shall deposit

a sufficient amount of fill material to restore the area to the

same sloping level as that of the adjacent wetland from the

shoreline to the end of the dredged area, which is

approximately 275 feet from the north end of the dredged

area.

It is further ORDERED that after the area has been

filled, Defendant shall plant the entire filled area with

Spartina Alterniflora, commonly known as smooth cordgrass,

in a gridlock pattern at intervals of three feet.

Sa

It is further ORDERED that Defendant shall continue

to replant the area each year during the month of April until

at least seventy percent of the restored area is covered with

live Spartina Alterniflora.

It is further ORDERED that Defendant shall permit

a representative from the United States Army Corps of

Engineers to be present at any and all times during the

performance of the restoration for the sole purpose of

observation.

It is further ORDERED that Defendant shall procure

the Spartina Alterniflora plants from the adjacent wetlands in

a manner which will not result in extensive harm to the

adjacent wetlands.

It is further GRDERED that ihe fill work and first

planting herein ordered shall be completed on or before

November 1, 1992.

It is further ORDERED that Defendant’s failure to

comply with this Order in any of its particulars, will subject

Defendant to the contempt powers of this Court to the full

extent permitted by law.

DONE at Galveston, Texas, this _12th_ day of _

May _., 1992.

Hugh Gibson

HUGH GIBSON

UNITED STATES DISTRICT JUDGE

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LEGEND

M-MARSH VEGETATION-INTERTIDE

TTIDAL FLAT

S-SHALLOW WATER

C-CREEK CHANNEL

H-HIGH MARSH

U-UPLAND VEGETATION

D-DIKE SPOIL DISPOSAL AREA

E-ERODED SPOIL

I-INDUSTRIAL SITE

B-BUILDING

R-ROAD

DICKINSON BAYOU

MARLIN MARINE a) /

/

be / |

E ESPEY. HUSTON & ASSOCIATES. INC

H ENGINEERING & ENVIRONMENTAL CONSULTANTS

FIG 2

0 100 200

SCALE LAND CLASSIFICATION MAP

OF THE PROJECT AREA

(from 1980 CIR Aerial Photography j

7a

CLERK U S DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

MAR 25 1986

JESSE E. CLARK, CLERK

BY DEPUTY /s/ Mamie Bergan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

ROY B. ROBINSON

VS.

THE UNITED STATES

OF AMERICA

C.A. G-84-35

———— Ss Sw

FINAL JUDGMENT

In accordance with the Court’s findings of fact and

conclusions of law, it is ORDERED,, ADJUDGED and

DECREED that plaintiff violated the Army Corps of

Engineers per No. 11/06, and this cause of action is hereby

DISMISSED.

This is a FINAL JUDGMENT.

DONE at Galveston, Texas, this the 25th __ day

of March , 1986.

Hugh Gibson

UNITED STATES DISTRICT JUDGE

GOVERNMENT

EXHIBIT

—

8a

CLERK U S DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

MAR 25 1986

JESSE E. CLARK, CLERK

BY DEPUTY /s/ Mamie Bergan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON, DIVISION

ROY B. ROBINSON

VS.

THE UNITED STATES

OF AMERICA

C.A. G-84-35

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FINDINGS OF FACT AND

CONCLUSIONS OF LAW

Plaintiff, Roy B. Robinson d/b/a/ Marlin Marine,

seeks a declaratory judgment pursuant to 28 U.S.C. §2201

that he has not violated a permit issued by the United States

Army Corps of Engineers ("Corps"). The parties tried the

case before the Court on 10-11 February 1986. Having

considered all evidence and argument presented, the Court

now makes the following findings of fact and conclusions of

law pursuant to Fed.R.Civ.P. 52(a).

Findings of Fact

FR On 6 December 1976 plaintiff applied to the

Corps for a permit to dredge a channel and build a bulkhead

at Dickinson Bayou, and the wetlands adjacent to it, in

Galveston County, Texas.

9a

2. On 9 March 1977 the Corps issued permit No.

11706 to plaintiff. The permit expired on 31 December

1980. The permit allowed plaintiff to perform "work in or

affecting navigable waters of the United States...pursuant to

Section 10 of the Rivers and Harbors Act of March 3, 1899

(33 U.S.C. 403)" and to "[d]ischarge dredged or fill material

into navigable waters... pursuant to Section 404 of the Federal

Water Pollution Control Act [°33 U.S.C. §1344]."

3. The permit provides:

: General Conditions

8. That all activities identified and

authorized herein shall be consistent with the terms and

conditions of this permit: and that any activities not

specifically identified and authorized herein shall constitute

a violation of the terms and conditions of this permit which

may result in the modification, suspension or revocation of

this permit, in whole or in part...or in the institution of such

legal proceedings as the United States Government may

consider appropriate ..... (Emphasis added).

4. Specifically, the permit authorized plaintiff to

"dredge a barge slip and channel and construct a steel pile

bulkhead and backfill." The permit specifies that all

activities were to be in accordance with the map and two

drawings attached thereto and "incorporated in and made a

part of the permit."

The first attached drawing, _ entitled

"Amendment to 11706. Location Map," shows the proposed

channel, slip, bulkhead, shop and spoil areas. The map also

shows a wetlands area adjacent to the shop area and spoil

areas. The drawing indicates that no spoil was to be placed

in this wetlands area ("no spoil area").

10a

6. Plaintiff dredged in the no spoil area after

January, 1976, but before the permit expired.

Conclusions of Law

l. The Court has jurisdiction pursuant to 28

U.S.C. §1331 and 5 U.S.C. §704 because the Court is

reviewing the scope of a Corps permit issued pursuant to 33

U.S.C. §§403, 1344.

2. The parties agree and the Court concludes that

areas in question are navigable waters and wetlands within

the jurisdiction of the Corps.

3. The permit did not authorize plaintiff to dredge

in the no spoil area.

4. Plaintiff argues that because the map only

indicated that no spoil could be placed on the area, and the

words "no dreding” were not added, he did not violate the

permit. Plaintiff’s argument invites the Court to construe the

permit in direct contradiction to permit General Condition

l.a.. which states that all activity that is not specifically

authorized is prohibited. The Court declines plaintiff's

invitation and holds that the permit means what it says:

activity that is not specifically authorized is prohibited.

» Plaintiff argues estoppel and laches against the

Corps’ claim of a violation of the permit. Plaintiff contends

that before the Corps issued the permit and during the

dredging, agents of the Corps saw the dredged no spoil area

delineated with stakes and flags. The Corps never attempted

to stop the dredging. Plaintiff essentially argues that the

Corps’ silence it showed that he did not violate the permit

lla

and 2) led him to believe that he had not violated the permit.

Plaintiff also argues laches--too much time has passed for the

government to argue a violation.

The Corp holds that the silence of the Corps does not

estopp it from arguing a violation of express terms of the

permit. See Utah Power & Light Co. v. United States, 243

U.S. 389, 409 (1917); Hicks v. Harris, 606 F .2d 65, 68-9

(Sth Cir. 1979); United States v. Florida, 482 F .2d 205, 209

(Sth Cir. 1973); Deltona Corp. v. Alexander, 682 F .2d 888.

891-92 (11th Cir. 1982); Lavin v. Marsh, 644 F .2d 1378,

1382-83 (9th Cir. 1981). Furthermore, laches would not

prevent the Corps from arguing that plaintiff violated the

permit, although it might prevent the Corps from taking

punitive action.

6. Accordingly, it is ORDERED, ADJUDGED

and DECREED that plaintiff violated the Army Corps of

Engineers permit No. 11706.

Te If any of the foregoing findings of fact

constitute conclusions of law, they are adopted as such. If

any of the foregoing conclusions of law constituted findings

of fact, they are adopted as such.

DONE at Galveston, Texas, this the 25th day

of March , 1986.

/s/ Hugh Gibson

UNITED STATES DISTRICT JUDGE

eS

12a

CLERK, U S DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

JUN 4 1985

JESSE E. CLARK, CLERK

BY DEPUTY /s/ Mamie B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

ROY B. ROBINSON )

) CONSOLIDATED

VS. )

) C.A. G-84-35

THE UNITED STATES ) w/C.A.G-84-325

OF AMERICA, ET AL )

ORDER

Before the Court are defendants United States of

America and the State of Texas’ motions to dismiss or

alternatively, motions for summary judgment, and the State

of Texas’ motion to remand filed in Civil Action G-84-325.

I.

The State of Texas alleges that plaintiff Roy Robinson

built and operated his marine salvage facility on Texas

Coastal Public Land without authorization from the State.

Pursuant to the Texas Coastal Public Lands Management

Act, TEX.NAT.RES.CODE ANN. Chapter 33, the State

instituted enforcement action against Robinson in the 98th

Judicial State District Court in Travis County. On January

23, 1984, Robinson initiated Civil action G-84-35 in this

Court, seeking a declaratory judgment against the United

13a

States and the State of Texas. On February 1, 1984,

Robinson removed the state proceeding to the federal court

in Austin, and the State moved to remand. The federal court

in Austin granted Robinson's motion to transfer the State’s

case to this Court (Civil Action G-84-325), where his

declaratory judgment action is pending. By order dated

March 7, 1985, this Court consolidated both cases because

of similar issues of law and facts.

The State’s cause of action against Robinson is

predicated upon the TEX.PARK & WILDLIFE CODE,

Chapter 86, and the Texas Coastal Public Lands Management

Act, a statute designed to protect the natural resources and

environmental interests of the State. Any constitutional or

federal question issues can only be raised by way of

Robinson’s defenses in the State enforcement action, and,

therefore, do not constitute basis for removal. Franchise Tax

Board of California v. Construction Laborers Vacation Trust

for Southern California, 463 U.S. 1 (1983).

The legality of plaintiffs activity under State law is

governed by a detailed statutory and regulatory scheme. See

TEX.NAT.RES.CODE, Chapter 33; 31 TEX.ADM.CODE

§§155.1-155.9. The environmental impact of plaintiff’s

activities upon Texas submerged lands implicates important

State interests which meet the criteria for absention. See

Younger v. Harris, 401 U.S. 37 (1971); Middlesex County

Ethics Committee v. Garden State Bar Association, 457 U.S.

423 (1982); Women’s Community Health Center of

Beaumont, Inc. v. Texas Health Facilities Comm. , 685 F .2d

974, 978 (Sth Cir. 1982). Adequate opportunity existed for

Robinson to raise his federal law defenses in the State

proceeding, which was ongoing at the time he attempted

removal.

l4a

Accordingly, the Court GRANTS the State’s motion

to dismiss in G-84-35 and REMANDS G-84-325 to the State

District Court.

Il.

Defendant United States alleges that 1) plaintiff's

jurisdictional theory is improper and 2) plaintiff has not

exhausted administrative remedies.

Plaintiff has amended his complaint, asserting

jurisdiction under the Administrative Procedure Act, 5

U.S.C. §702. Therefore, the United States’ first ground for

dismissal is MOOT.

The United States contends that although plaintiff

initially constructed and dredged his facility under a valid

Corps of Engineers permit, he performed additional dredging

not authorized by such permit. The United States claims that

plaintiff failed to complete an after-the-fact permit

application, and, therefore, has not exhausted available

administrative remedies to legitimize his unauthorized

activity. Plaintiff, on the other hand, maintains that he did

not perform unauthorized work, and, hence, did not need an

after-the-fact application.

Title 33 C.F.R. §326.3(d), governing unauthorized

activity and acceptance of an after-the-fact application,

provides that:

"If the responsible party fails to submit

an application...within a reasonable time

period, the district engineer may proceed on

his own initiative with a determination of

whether the activity is in the public interest.

The determination will be made in accordance

ADD he Ce BA Rie he le Caae

Sa se een a Se ee NS tale

RO Ag! sad cma conta iN

15a

with appropriate procedures..." (Emphasis

Added)

Thus, an after-the-fact application is not absolutely necessary

before the Corps of Engineers enters a final decision

directing remedial work. Accordingly, the Court finds the

United States’ "exhaustion" argument without merit.

The Court further finds that the only issue in this case

is whether plaintiff has violated his federal permit. A

resolution of this fact issue will determine whether the

Corps’ decision is arbitrary or capricious under the

Administrative Procedures Act.

In summary, the Court ORDERS as follows:

he defendant United States’ motion for summary

judgment is DENIED;

as defendant State of Texas’ motion to dismiss is

GRANTED;

3. the State of Texas’ motion to remand C.A. G-

84-325 is GRANTED;

4. the Court’s consolidation order of March 7,

1985 is VOID; and

¥ C. A. G-84-325 is REMANDED to the 98th

Judicial District Court, Travis County.

DONE at Galveston, Texas, this the 4th day

of June , 1985.

Hugh Gibson

UNITED STATES DISTRICT JUDGE

16a

CLERK U S DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

FEB 11 1986

JESSE E. CLARK, CLERK

BY DEPUTY: /s/ Mamie Bergan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

ROY B. ROBINSON §

§

vs § CIVIL ACTION NO.

§ G 84-35

THE UNITED STATES §

OF AMERICA §

JOINT PRETRIAL ORDER

Appearance of Counsel

Plaintiff, Roy B. Robinson, is represented by Richard

Parker, 1550 Castle Court, Houston, Texas 77006,

telephone (713) 521-0247.

Defendant, The United States of America, is

represented by Robert Darden, Assistant United States

Attorney, 515 Rusk Avenue, Suite 12000, Houston, Texas

77002, telephone (713) 229-2691.

17a

Statement of the Case

On or about March 8, 1977, Plaintiff Roy B.

Robinson was issued U.S. Army Corps of Engineers permit

no. 11706 to build a bulkhead as well as dredge a channel at

his commercial docking facility at Dickinson Bayou,

Galveston County, Texas. This he proceeded to do on about

January 1, 1978. His permit allowed him to dredge up to

55,000 cubic years of spoil by hydraulic dredge and dragline

for the construction of a docking facility and channel and

also to construct a steel sheet pile bulkhead. The dredge

material was placed, as per the permit, behind the bulkhead

and in a disposal area on high ground.

During the process of dredging, a Corps or Engineers

representative visited the site and found some run-off at the

disposal site. A cease and desist order was issued to Mr.

Robinson. Mr. Robinson, in cooperation with the Corps,

cleaned up the run-off to the Crops’ stipulation and

satisfaction and the cease and desist order was lifted.

In approximately November of 1978 during an on-site

inspection, field investigators for the Corps maintained that

Mr. Robinson exceeded the scope of his permit authority.

After a further investigation in 1979, a recommendation was

forwarded from the Permit Enforcement Branch of the Corps

of Engineers to the Legal Section that legal action be taken

against Mr. Robinson for violating his permit. The legal

branch has never referred that recommendation to the

Department of Justice for action and the matter has been

pending with the Corps’ Legal Section in Galveston since

1979. Mr. Robinson has steadfastly denied that he violated

his permit in any way.

Mr. Robinson brought this action in early 1984 under

the Declaratory Judgment Act seeking a _ judicial

18a

determination that he has not violated the Corps of Engineers

permit no. 11706. The only issue before this Court as per

this Court’s Order of June 4, 1985, is whether the Plaintiff,

Roy B. Robinson, violated the Corps of Engineers’ permit

no. 11706.

Jurisdiction

This Court has jurisdiction over the subject matter of

the parties hereto by virtue of the authority granted it under

28 U.S.C. §1357 and 28 U.S.C. §2201 as well as 33 U.S.C.

§403 and §407.

Motions

There are no motions pending at the present time.

Contentions of the Parties

The Plaintiff, Roy B. Robinson, claims that his

property rights and business enterprise have been hurt and

jeopardized because the Corps of Engineers has made an

internal judicial determination that he has violated his permit

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

§§304 and 407. This internal determination makes it

virtually impossible for Mr. Robinson to get a permit from

the Corps of Engineers to maintenance dredge his

commercial docking facility and adjacent channel, on which

he depends for his livelihood. Also, the internal decision of

non-compliance with permit 11706 stays with the property in

question, so should Mr. Robinson ever decide to sell, the

stigma of non-compliance stays attached to the property for

any subsequent purpose. His property value thus diminished

and a judicial determination that no violation has taken place

is the only way that Mr. Robinson can clear up the matter.

19a

Mr. Robinson contends that the failure of the Corps

to either bring a civil action against him or give him an

internal clearance leaves him with no option but to seek a

judicial determination under the Declaratory Judgment Act

that he has not violated permit no. 11706.

ne ee ee ee ee a

The Defendant The United States of America contends

that Mr. Robinson violated his permit.

The Defendant The United States of America further

contends that it has no duty to resolve issue in any other

form as to whether or not Mr. Robinson has violated permit

no. 11706.

NAEP atl Be CED n'y AR Nag: Bile A a it Ny Sats Bet

nb Se a9 es

Admission of Fact

bos oa le

3 Roy B. Robinson was issued Corps of

Engineers permit no. 11706 effective March

9, 1977 allowing him to dredge approximately

55,000 cubic yards of material by hydraulic

dredge and dragline and construct at steel

sheet pile bulkhead at his commercial docking

facility on Dickinson Bayou in Galveston

County, Texas.

ae.

2. Mr. Robinson is the owner of the property the

subject of this lawsuit.

“ SO es i Le OS ie apn RR ewe oy

Contested Issues of Fact

l. Did Mr. Robinson violate the Corps of

Engineers permit no. 11706.

20a

Agreed Applicable Propositions of Law

This case is properly brought under the

Declaratory Judgment Act.

® None

Contested Issues of Law

Witnesses

The Plaintiff will call the following witnesses:

i

Roy B. Robinson, Plaintiff, who will testify

concerning the facts of permit no. 11706.

Mr. Eddie Anderson, who will testify

concerning the meetings with the Corps of

Engineers and the facts surrounding the

issuance of permit no. 11706.

Mr. John Wong, (adverse), by deposition, who

will testify as to the activities of the Corps of

Engineers.

Mr. Henry King, (adverse), who will testify as

to why the Corps of Engineers has taken no

legal action against Plaintiff Roy B. Robinson

in the past seven years.

Mr. Earl Mills, former Corps of Engineers

employee who will testify of the events prior

to the issuing of the permit and the initial

stages of the investigation.

DEY MRL tae SN

2la

In addition, the Plaintiff reserves the right to call any

or all of the witnesses listed by the Defendant.

The Defendant plans to call the following witnesses:

l.

Mr. Fred L. Anthamatten, U.S. Army Corps

of Engineers, Galveston, Texas 77553.

Mr. Donald Nanninga, U.S. Army Corps of

Engineers Galveston, Texas 77553. Mr.

Nanninga performed the initial field

investigation of the activity.

Marcos De La Rosa, U.S. Army Corps of

Engineers, Galveston, Texas. Mr. De La

Rosa is the Chief, General Regulatory Branch,

Galveston District, Corps of Engineers.

Fred Miller, U.S. Corps of Engineers,

Galveston, Texas, 77553.

Earl Mills, former Corps of Engineers

employee.

In addition, the Defendant reserves the right to call

any or all of the witnesses listed by the Plaintiff.

Settlement

All settlement possibilities have been exhausted and

this case will have to be tried.

Length of Trial

It is estimated by the parties that this case will take

approximately one and one-half to two days to try.

22a

We hereby respectfully request the entry of this

Order.

Respectfully submitted,

__/s/ Richard Parker

Richard Parker

1550 Castle Court

Houston, Texas 77006

(713) 521-0247

ATTORNEY FOR PLAINTIFF

/s/ Robert Darden

Robert Darden

Assistant United States Attorney

515 Rusk Avenue, Suite 1200

Houston, Texas 77002

(713)229-2600

ATTORNEY FOR DEFENDANT

This Joint Pre-trial Order is hereby approved and

entered this__ eleventh _ day of February _, 1986.

/s/ H. Gibson

UNITED STATES DISTRICT JUDGE

TF A OP OO as EP BOTS A: 5 a he Dit 0 PRE RE PE et ORD FO ha od

23a

US COURT OF APPEALS

FILED

MAY - 4 1993

RICHARD E. WINDHORST, JR.

CLERK

RECEIVED MAY 10 1993

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-7360

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROY B. ROBINSON,

Defendant-Appellant.

Appeal from the United States District Court of the

Southern District of Texas

ON PETITION FOR REHEARING

( May 4, 1993 )

Before REYNALDO G. GARZA, WILLIAMS and JONES,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in above entitled and numbered cause be and the same is

hereby DENIED. 5/3/93

ENTERED FOR THE COURT:

24a

/s/_ Edith H. Jones

United States Circuit Judge

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

MANDATE.

25a

This case involves 28 U.S.C. §§2201 and 2202, 33

U.S.C. §§ 403, 407, 1311(a), 1319(b), 1344(s)(3),

1344(s)(5) and 33 CFR 323.2. It also involves Rules 12(b),

13(a), 15(b) and 16(e) of the Federal Rules of Civil

Procedure. These authorities appear verbatim in the

appendix, beginning at App. 25a.

28 U.S.C. §2201. Creation of Remedy

(a) In case of actual controversy within its

jurisdiction, except with respect to Federal taxes other than

actions brought under section 7428 of the Internal Revenue

Code of 1986, a proceeding under section 505 or 1146 of

title 11, or in any civil action involving an antidumping or

countervailing duty proceeding regarding a class or kind of

Canadian merchandise, as determined b the administering

authority, any court of the United States, upon the filing of

an appropriate pleading, may declare the rights and other

legal relations of any interested party seeking such

declaration whether or not further relief is or could be

sought. Any such declaration shall have the force and effect

of a final judgment or decree and shall be reviewable as

such.

28 U.S.C. § 2202. Further Relief

Further necessary or proper relief based on a

declaratory judgment or decree may be granted, after

reasonable notice and hearing, against any adverse party

whose rights have been determined by such judgment.

33 U.S.C. § 403. Obstruction of navigable waters

generally; wharves; piers, etc.

26a

The creation of any obstruction not affirmatively

authorized by Congress to the navigable capacity of any of

the waters of the United States is prohibited; and it shall not

be lawful to build or commence the building of any wharf,

pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or

other structures in any prot, roadstead, haven, harbor, canal,

navigable river, or other water of the United States, outside

established harbor lines, or where no harbor lines have been

established, except on plans recommended by the Chief of

Engineers and authorized by the Secretary of the Army; and

it shall not be lawful to excavate or fill, or in any manner to

alter or modify the course, location, condition, or capacity

of, any port, roadstead, haven, harbor, canal, lake, harbor of

refuge, or inclosure within the limits of any breakwater, or

of the channel of any navigable water of the United States,

unless the work has been recommended by the Chief of

Engineers and authorized by the Secretary of the Army prior

to beginning the same.

33 U.S.C. § 407. Deposit of refuse in navigable water

generally

It shall not be lawful the throw, discharge, or deposit,

or cause, suffer or procure to be thrown, discharge, or

deposited either from or out of any ship, barge, or other

floating craft of any kind, or from the shore, wharf,

manufacturing establishment, or mill of any kind, any refuse

matter of any kind or description whatever other than flowing

from streets and sewers and passing therefrom in a liquid

state, into any navigable water of the United States, or into

any tributary of any navigable water from which the same

shall float or be washed into such navigable water; and it

shall not be lawful to deposit, or cause, suffer, or procure to

be deposited material of any kind in any place on the bank of

any navigable water, or on the bank of any tributary of any

navigable water, where the same shall be liable to be washed

{

)

27a

into such navigable water, either by ordinary or high tides,

or by storms or floods, or otherwise, whereby navigation

shall or may be impeded or obstructed: Provided, That

nothing herein contained shall extend to, apply to, or prohibit

the operations in connection with the improvement of

navigable waters, or construction of public works, considered

necessary and proper by the United States officers

supervising such improvement or public work: And provided

further, That the Secretary of the Army, whenever in the

judgment of the Chief of Engineers anchorage and navigation

will not be injured thereby, may permit the deposit of any

material above mentioned in navigable waters, within limits

to be defined and under conditions to be prescribed by him,

provided application is made to him prior to depositing such

material; and whenever any permit is so granted the

conditions thereof shall be strictly complied with, and any

violation thereof shall be unlawful.

33 U.S.C. § 1311(a).

(a) Illegality of pollutant discharges except in

compliance with law

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this title, the

discharge of any pollutant by any person shall be unlawful.

33 U.S.C. § 1319(b)

(b) Civil actions

The Administrator is authorized to commence a civil

action for appropriate relief, including a permanent or

temporary injunction, for any violation for which he is

authorized to issue a compliance order under subsection (a)

of this section. Any action under this subsection may be

28a

brought in the district court of the United States for the

district in which the defendant is located or resides or is

doing business, and such court shall have jurisdiction to

restrain such violation and to require compliance. Notice of

the commencement of such action shall be given immediately

to the appropriate State.

33 U.S.C. § 1344(s)(3)

(s) Violation of permits

(3) The Secretary is authorized to commence a civil

action for appropriate relief, including a permanent or

temporary injunction for any violation for which he is

authorized to issue a compliance order under paragraph (1)

of this subsection. Any action under this paragraph may be

brought in the district court of the United States for the

district in which the defendant is located or resides or is

doing business, and such court shall have jurisdiction to

restrain such violation and to require compliance. Notice of

the commencement of such acton' shall be given

immediately to the appropriate State.

33 U.S.C. § 1344(s)(5)

(s) Violation of permits

(5) | Any person who violates any condition or

limitation in a permit issued by the Secretary under this

section, and any person who violates any order issued by the

Secretary under paragraph (1) of this subsection, shall be

subject to a civil penalty not to exceed $10,000 per day of

such violation.

1. So in original. Probably should be “action”.

Larrea

29a

"33 C.F.R. 323.2 Code of Federal Regulations

(b) The term ’navigable waters of the United States’

means those waters of the United States that are subject to

the ebb and flow of the tide shoreward to the mean high

water mark and/or are presently used, or have been used in

the past, or may be susceptible to use to transport interstate

or foreign commerce. (See 33 CFR Part 329 for a more

complete definition of this term.)

(c) The term ‘wetlands’ means those areas that are

inundated or saturated by surface or ground water at a

frequency and duration sufficient to support, and that under

normal circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs and

similar areas."

Rule 12(b), Federal Rules of Civil Procedure

(b) How Presented. Every defense, in law or fact,

to a claim for relief in any pleading, whether a claim,

counterclaim, cross-claim, or third-party claim, shall be

asserted in the responsive pleading thereto if one is required,

except that the following defenses may at the option of the

pleader be made by motion: (1) lack of jurisdiction over the

subject matter, (2) lack of jurisdiction over the person, (3)

improper venus, (4) insufficiency of process, (5)

insufficiency of service of process, (6) failure to state a claim

upon which relief can be granted, (7) failure to join a party

under Rule 19. A motion making any of these defenses shall

be made before pleading if a further pleading is permitted.

No defense or objection is waived by being joined with one

or more other defenses or objections in a responsive pleading

or motion. If a pleading sets forth a claim for relief to

which the adverse party is not required to serve a responsive

30a

pleading, the adverse party may assert at the trial any

defenses in law or fact to that claim for relief. If, on a

motion asserting the defense numbered (6) to dismiss for

failure of the pleading to state a claim upon which relief can

be granted, matters outside the pleading are presented to and

not excluded by the court, the motion shall be treated as one

for summary judgment and disposed of as provided in Rule

56, and all parties shall be given reasonable opportunity to

present all material made pertinent to such a motion by Rule

56.

Rule 13(a), Federal Rules of Civil Procedure

Compulsory counterclaims. A pleading shall state as

a counterclaim any claim which at the time of serving the

pleading the pleader has against any opposing party, if it

arises Out of the transaction or occurrence that is the subject

matter of the opposing party’s claim and does not require for

its adjudication the presence of third parties of whom the

court cannot acquire jurisdiction. But the pleader need not

state the claim if (1) at the time the action was commenced

the claim was the subject of another pending action, or (2)

the opposing party brought suit upon the claim by attachment

or other process by which the court did not acquire

jurisdiction to render a personal judgment on that claim, and

the pleader is not stating any counterclaim under this Rule

13.

Rule 15 (b), Federal Rules of Civil Procedures

(b) Amendments to Conform to the Evidence.

When issues not raised by the pleadings are tried by

express or implied consent of the parties, they shall be

treated in all respects as if they had been raised in the

pleadings. Such amendment of the pleadings as may be

—————

3la

necessary to cause them to conform to the evidence and to

raise these issues may be made upon motion of any party at

any time, even after judgment; but failure so to amend does

not affect the result of the trial of these issues.

Rule 16 (e), Federal Rule of Civil Procedure

(e) Pretrial Orders. After any conference held

pursuant to this rule, an order shall be entered reciting the

action taken. This order shall control the subsequent course

of the action unless modified by a subsequent order. The

order following a final pretrial conference shall be modified

only to prevent manifest injustice.