530 F.2d 625 (5th Cir. 1976), 74--3571, Bankers Life & Cas. Co. v. Callaway

Docket Nº:74--3571.
Citation:530 F.2d 625
Party Name:BANKERS LIFE & CASUALTY CO., Plaintiff-Appellant, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants-Appellees.
Case Date:April 21, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 625

530 F.2d 625 (5th Cir. 1976)

BANKERS LIFE & CASUALTY CO., Plaintiff-Appellant,


Howard H. CALLAWAY, Secretary of the Army, et al.,


No. 74--3571.

United States Court of Appeals, Fifth Circuit

April 21, 1976

Rehearing and Rehearing En Banc

Denied Aug. 4, 1976.

Page 626

Ronald S. Sales, Palm Beach, Fla., William T. Kirby, Chicago, Ill., Martin J. Gaynes, Washington, D.C., for plaintiff-appellant.

Robert W. Rust, U.S. Atty., Miami, Fla., Patrick A. Mulloy, Dept. of Justice, Wallace H. Johnson, Asst. Atty. Gen., George R. Hyde, Edward J. Shawaker, Attys., Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG and AINSWORTH, Circuit Judges, and NICHOLS, [*] Associate Judge.

GOLDBERG, Circuit Judge:

Nineteen years ago, Bankers Life and Casualty Company (Bankers) first acquired a dredge and fill permit from the Army Corps of Engineers, issued pursuant to the Rivers and Harbors Act, 33 U.S.C. § 403. Today Bankers stands before this Court for the second time in five years, struggling to extricate itself from the morass of bureaucratic inaction. Relying on section 9(b) of the Administrative Procedure Act (APA), 5 U.S.C. § 558(c), it asks for a declaration that its permit rights under its 1960 permit have never expired and for an injunction ordering the Corps to hold a hearing on its renewal application. The district court, in an order bare of reasons, dismissed the complaint in response to the Government's invocation of the sovereign immunity and want of ripeness defenses. Although we find that neither of these grounds warranted dismissal, we think the trial court's disposition was correct, for under our reading of section 9(b) of the APA, Bankers cannot prevail on the merits.


At the risk of miring the reader in a bog of detail, we have chosen to discuss the facts, which are undisputed for the most part, fairly extensively, in order to place the complex administrative law questions in context. We begin by reproducing the account of the background of this litigation that appeared in our first opinion: 1

The history of this effort by Bankers to turn part of the waters of Lake Worth into land may be summarized as follows. On April 17, 1957, Bankers paid the Florida State Board of Trustees of the Internal Improvement Trust Fund of Florida (the state agency which at that time could appropriately deal with the matter) the sum of $26,000 for the use of 2,500,000 cubic yards of fill. Much of the fill, approximately 1,116,170 cubic yards, was consumed

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in the filling of other lands by Bankers and is not part of the subject matter of this action.

On February 15, 1957, Bankers applied to the Corps of Emgineers for a permit to fill the property, and this was granted on or about April 29, 1957. There was nothing in the Federal Statutes at the time that required the Corps of Engineers to consider conservation, and there is nothing in the record to indicate that any study of possible ecological effects was made at that time. The permit which was issued carried the following statement on its face.

'That this instrument does not give any property rights either in real estate or material, or any exclusive privileges.'

It also stated that:

'If the structure or work herein authorized is not completed on or before the 31st day of December, 1960, this permit if not previously revoked or specifically extended, shall cease and be null and void.'

At the request of Bankers, the Corps, in December, 1960, extended the permit to December 31, 1963. The extension also contained the statement that if work authorized by the permit was not completed during the period of extension the permit would become null and void if not previously revoked or specifically extended. On December 16, 1963, the Trustees wrote the Corps a letter requesting that final consideration of Bankers' application for another permit extension be deferred pending Bankers' receipt of a local fill permit in accordance with Florida Statute Section 253.--124, F.S.A. The Corps agreed to defer Bankers' permit extension and on December 27, 1963, informed Bankers that it would not be possible to grant an immediate extension at that time because of Corps policy when there was local objection.

For several years no further action was taken as between Bankers and the Corps of Engineers. During this time various attempted settlements of disputes were negotiated between Bankers, the State of Florida and the Village of North Palm Beach concerning the title of the submerged lands sought to be filled. On December 6, 1968 and March 17, 1969, Bankers corresponded with the Village in an effort to obtain a local fill permit. In June, 1969, the Village informed Bankers that a permit would be granted; however, shortly thereafter on July 10, 1969, the Village undertook to rescind this action.

By letter dated July 10, 1969, the same date as the meeting of the Village Council rescinding the action of June, Bankers addressed a letter to the Corps of Engineers stating that a permit had been received by letter from the Village of North Palm Beach and stating that 'in as much as there were no other objections to the extension of the permit, as stated in your letter of December 27, 1963, to us, I trust this removes the final obstacle and you will grant the extension requested promptly.'

The Corps of Engineers, obviously not desiring to resolve any underlying disputes as to whether the requirements referred to in the original request to the Corps from the Trustees had all been met, responded by letter of July 18, stating 'it will still be necessary, however, that the written approval of the Trustees of the Internal Improvement Fund be furnished before further action can be taken on your application.'

The status of the matter thus was that the state agency had requested that the application be held up in December, 1963. The Corps of Engineers had held it up, indicating that once the matters referred to in the state's letter were cleared it would be the purpose of the Corps of Engineers to proceed with an issuance of the extension. However, it was not until more than five years later that Bankers undertook to inform the Corps that it considered the conditions previously existing to have now been satisfied. The Corps of Engineers, quite appropriately, we think, deferred its action until

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it obtained a 'go ahead' from the Trustees, the state body which had originally requested the deferment of the issuing of the permit.

Bankers Life & Casualty Co. v. Village of North Palm Beach, 5 Cir. 1972, 469 F.2d 994, cert. denied, 1973, 411 U.S. 916, 93 S.Ct. 1543, 36 L.Ed.2d 307 (hereinafter referred to as Bankers I).

Thus, to recapitulate, as of December 31, 1963, Bankers was told that it needed two permits in order to conduct its fill operations legally: the Rivers and Harbors Act permit, which it had already held for over six years, had to be renewed, and a local permit from the Village of North Palm Beach had to be secured. Since the Corps refused to grant an extension of the Rivers and Harbors Act permit until the Trustees officially withdrew their objection, and since Bankers took the position that all legal obstacles had been removed, the parties had reached an impasse which led to Bankers' first lawsuit.

II. Bankers I

Bankers' theory in its first effort to assure that it held a valid federal permit proceeded as follows: (1) But for the trustees' intervention, the Corps would have extended the permit in December 1963; (2) the Trustees, as a matter of Florida law, had no power to require a local permit under Florida Statutes § 253.124; and therefore, (3) the original intervention was without effect, and the Corps should be compelled to renew the 1960 permit or issue a new permit.

The district court agreed with this reasoning, and entered two significant orders: it directed the Corps to grant the Rivers and Harbors Act permit without reference to local permits or ecology; and it decreed that Bankers had the right to fill without a section 253.124 permit, and that upon completion of the filling project, title in the land should be quieted in Bankers.

This Court reversed on both points. First, it held that even if the Trustees had been wrong as a matter of state law, it was still error to require the Corps to issue its permit. Primarily, this was because the grant or denial of a permit is not a purely ministerial act. Over the time period since the Trustees first voiced their objection, the Corps had acquired new obligations to consider various environmental factors, all of which applied to Bankers. Rather than filing a formal application with the Corps, Bankers chose to file a lawsuit. Rejecting this approach, the Court held that '(t)he matter was not ripe for court action because the official of the government, who was empowered to act, had not been given an opportunity to perform the duties imposed on him by the federal statutes.' 469 F.2d at 999.

With regard to the state law rulings the district court had agreed with the two premises offered by Bankers: that the Trustees' request was the sole impediment to renewal, and that the Trustees had no power to block Bankers' permit. It based the latter holding on its determination that Florida Statute section 253.124, which was added by Laws of Florida, Act of 1957, Ch. 57--362, § 4, did not apply to Bankers by virtue of the grandfather clause contained in section 11 of the Act of 1957.

At this juncture, it becomes important to understand some of the intricacies of Florida law relating to riparian owners' rights in submerged lands. As described in Bankers I, at 469 F.2d 997 n. 3, the applicable law prior to the Act of 1957 was the...

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