884 F.2d 1 (1st Cir. 1989), 89-1264, Coggeshall Development Corp. v. Diamond

• Citation: 884 F.2d 1
• Party Name: COGGESHALL DEVELOPMENT CORP., et al., Plaintiffs, Appellees, v. William J. DIAMOND, etc., et al., Defendants, Appellants.
• Case Date: September 05, 1989
• Court: United States Courts of Appeals, U.S. Court of Appeals — First Circuit

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884 F.2d 1 (1st Cir. 1989)

COGGESHALL DEVELOPMENT CORP., et al., Plaintiffs, Appellees,

v.

William J. DIAMOND, etc., et al., Defendants, Appellants.

No. 89-1264.

United States Court of Appeals, First Circuit

September 5, 1989

Heard Aug. 3, 1989.

J. Carol Williams, with whom Donald A. Carr, Acting Asst. Atty. Gen., Washington, D.C., Lincoln C. Almond, U.S. Atty., Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., and Angus E. Crane, Atty., Dept. of Justice Land & Natural Resources Division, Washington, D.C., was on brief, for defendants, appellants.

James M. Sloan, III, with whom Gardner, Sawyer, Gates & Sloan, Providence, R.I., was on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal could well have been avoided had the government directly raised the defense

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of sovereign immunity before the district court. Nevertheless, because it goes to the jurisdiction of the court, the defense of sovereign immunity "can be raised at any time, and indeed by a court of appeals on its own motion." Leonhard v. United States, 633 F.2d 599, 618 n. 27 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); see also Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974); Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1162 n. 6 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988). Decision of this issue is dispositive of this appeal. We reverse the decision of the district court issuing a writ of mandamus against various officers of the United States and order dismissal of this action for lack of subject matter jurisdiction.

The facts

In 1986, Coggeshall Development Corp. and Coggeshall Marine, Inc. ("Coggeshall") purchased approximately 20.3 acres from the State of Rhode Island Port Authority ("RIPA"). This land had been the site of a small boat basin ("Bend Boat Basin") maintained by the United States Navy ("Navy") in Portsmouth, Rhode Island. RIPA acquired the land by conveyance from the General Services Administration ("GSA") when it was surplused by the Navy sometime in early 1978.

The GSA deed to RIPA provided in part:

The Grantor hereby grants the Grantee all sewer lines located within said parcels 1 and 2, along with the perpetual and assignable right to connect at the boundary of Grantee's property with certain sewer mains owned by Grantor and located on other land of Grantor. Grantor covenants that it will maintain its sewer mains and appurtenances which connect sewer lines in the fee area to the City of Newport's public sewer system. (Emphasis added).

In its deed to Coggeshall, RIPA granted "all those rights and easements appertaining thereto granted to Grantor [RIPA] by the [GSA] Deed."

The Navy occupies the land adjacent to the Bend Boat Basin. Through this adjacent land pass the sewer lines leading from the Bend Boat Basin to the Newport sewer plant. Coggeshall submitted a rezoning request to the Portsmouth Planning Board for approval to construct residential condominiums in the Bend Boat Basin area. The town requested views from the Navy on the proposal.

On April 15, 1987, the Navy notified the Planning Board that it was setting a 12,000 gallon per day sewer discharge limit for the Bend Boat Basin area and that no future increase of this limit could be obtained through the Navy's utilities. Subsequently, this same information was communicated to Coggeshall by the Navy on April 26, 1988. Thereafter, GSA adopted the Navy's position in this respect.

Coggeshall seeks an additional effluent discharge of 60,000 gallons per day to allow full development of the Bend Boat Basin parcel. Pursuant to the above-cited provision in the GSA deed, it claims that it is the Navy's duty to upgrade and maintain the sewer lines that pass through its property so that they can handle the additional effluent discharge.

Claiming the authority of 28 U.S.C. Sec. 1361, ¹ Coggeshall brought an action in the United States District Court for the District of Rhode Island against the administrators of GSA for the region in question, and against the Navy's director of public works in Newport, Rhode Island, seeking mandamus relief "to permit [Coggeshall] the perpetual and assignable right to connect at the boundary of the property owned by the [Navy] such sewer connections and sewer mains as are necessary for the use and enjoyment of [Coggeshall's] property." After trial, the district court granted judgment on behalf of Coggeshall and issued a writ of mandamus "order[ing] that the Navy take [Coggeshall's] future needs into account in its upcoming study of the sewer system's needs and that the Navy within a reasonable time make repairs as required to allow [Coggeshall] to tie into the sewer

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system for up to the requested total amount of 72,000 gallons of discharge per day."

Sovereign immunity

(1) A jurisdictional issue

It is beyond discussion that the United States cannot be sued absent an express waiver of its immunity as a sovereign. Block v. North Dakota, ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). "A necessary corollary of this rule is that when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied." Id. Absent a waiver of sovereign immunity, courts are totally lacking in jurisdiction to entertain actions against the United States. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941).

(2) The United States as a party

Notwithstanding that the United States is not a named party, "a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration' ... or if the effect of the judgment would be 'to restrain the government from acting, or to compel it to act.' " Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963).

In certain instances, an action will not be considered against the United States, and thus will not be barred by sovereign immunity, if it is one for specific relief against officers. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949). However, to come within this "specific relief" exception a claimant must allege and prove that the officer has acted outside of the scope of his authority. Id. at 690, 69 S.Ct. at 1461.

(3) Waiver of immunity

Waiver of immunity "cannot be implied but must be unequivocably expressed." United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The most commonly known waivers of sovereign immunity by the federal government are, in the field of torts, the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., and in contract disputes, the Tucker Act, 28 U.S.C....