Board of Sup'rs of Fairfax County, Va. v. US, Civ. A. No. 75-392-A.

• Decision Date: 23 January 1976
• Docket Number: Civ. A. No. 75-392-A.
• Parties: BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, Plaintiff, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

408 F. Supp. 556

BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, Plaintiff, v. UNITED STATES of America et al., Defendants.

Civ. A. No. 75-392-A.

United States District Court, E. D. Virginia, Alexandria Division.

January 23, 1976.

COPYRIGHT MATERIAL OMITTED

Myra H. Barron, Asst. County Atty., Fairfax, Va., for plaintiff.

Richard B. Kabat, Asst. Corp. Counsel, Washington, D. C., for defendants.

MEMORANDUM

MERHIGE, District Judge.

The Board of Supervisors of Fairfax County, Virginia, bring this action seeking damages and injunctive relief for injuries resulting from the operation of an alleged public nuisance at Lorton, Virginia. Plaintiff alleges that (1) the District of Columbia and certain of its officials have failed to maintain and operate the Lorton Reformatory in a manner required by law; (2) that this improper maintenance causes the facility to be a public nuisance; and (3) that the Attorney General has no authority to designate as a suitable place of confinement, a facility which is a public nuisance. Defendants include the District of Columbia and certain of its officials, the United States of America and the Attorney General of the United States. The matter is before the Court on defendants' motion to dismiss, plaintiff's response thereto, and argument of counsel.

The Lorton Complex itself is a prison facility maintained and operated by the District of Columbia. The complex is situated on approximately 3000 acres of land located in Fairfax County, Virginia. The United States retains legal title to the land upon which the prison is located having acquired the land in several parcels beginning in 1910. Persons convicted in the courts of the District of Columbia for any offense are committed to the custody of the Attorney General whose responsibility is to select a place of confinement for the prisoner. D.C.Code § 24-425 (1973 ed.). The Lorton Complex is one such place of confinement.

Count I of the complaint alleges that due to the number and increasing frequency of escapes, riots and disturbances, the Lorton Complex constitutes a public nuisance. Plaintiff alleges numerous escapes, fires, and kidnappings to support this claim. The breaches of security and the resulting threat to the health and safety of the surrounding community allegedly stems from the negligent conduct of the District of Columbia defendants in maintaining the facility. The Lorton Complex, so it is argued, is a public nuisance, and the Attorney General must be enjoined from designating it as a suitable place of confinement.

Count II contends that the operation of the Lorton Complex deprives the inhabitants of Fairfax County of several rights secured under the Constitution of the United States. Plaintiff further asserts in Count III that water and waste water treatment plants, the coal dust run-off from the coal-fired boilers and gases emitted from the Lorton Complex has and continues to pollute the air and waters of Fairfax County in violation of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., 4332(C)(i), and the Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Clean Air Act, 42 U.S.C. § 1857 et seq. Plaintiff, in Count IV, seeks compensation for services provided by the county to the Lorton Complex. All defendants maintain that sovereign immunity precludes this action, that the Court does not have jurisdiction over the subject matter or in the alternative, that plaintiffs have failed to state a claim upon which relief can be granted, and that plaintiffs lack standing to maintain this suit.

Defendants' position is that sovereign immunity precludes this action with regard to the District of Columbia and the named defendants. Despite recurring criticism¹ it remains the law that the sovereign need not be subjected to unconsented suits. Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Malone v. Bowdin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948). A suit is one against the sovereign if the judgment expends itself on the public treasury, interferes with the public administration, or if the effect of the judgment would restrain the government from acting or compel it to act. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Beginning with Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), exceptions to the applicability of sovereign immunity were recognized. It is now settled that the doctrine does not apply to suits against government officials who act beyond their statutory authorization, or where the statute conferring their authority is unconstitutional. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948); Dugan v. Rank, 372 U.S. 609, 620-21, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). A declaration that the Lorton Reformatory is a public nuisance could indeed have a major impact on the public administration of the unit and could affect all the defendants in their official capacities. Therefore, the suit is barred by the doctrine of sovereign immunity unless encompassed by either of the Larson exceptions, or is otherwise consented to by the respective governments. Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947).

Plaintiff does not challenge the constitutionality of the statutes under which the Attorney General confines persons to Lorton,² or the statute under which the District of Columbia maintains and operates the facility.³ Rather, plaintiff asserts that the Lorton Complex is being maintained in a manner not authorized by statute and one which is constitutionally void. Neither title to the property nor the right to locate a prison on that property is challenged. Cf. Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971); Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928).

This case, then, is unlike Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928) where the Court refused to enjoin the use of certain land as a munition depot. In Wilbur, it was the location of an activity that was drawn in issue and not the manner in which the activity was pursued. Indeed, the Court in Wilbur recognized that "where the act complained of is not authorized by statute, . . . the person attempting it may be restrained in a proper case, notwithstanding his claim that he is acting in his official capacity." Ferris v. Wilbur, 27 F.2d 262, 264 (4th Cir. 1928). A similar controversy was litigated in Knox Hill Tenant Council v. Washington, 145 U.S. App.D.C. 122, 448 F.2d 1045 (1971) where tenants challenged the manner in which a housing project was being maintained. The housing project, as is Lorton, was operated and maintained by the District of Columbia while legal title remained vested in the United States. The plaintiffs in Knox Hill, as in the instant case, alleged that government officials were maintaining the project in a manner violative of the statute that authorized the existence of the facility. In rejecting the plea of sovereign immunity, the Court said:

There is nothing new about judicial entertainment of suits which charge that federal officials are acting outside of, or in conflict with, the responsibilities laid upon them by the Congress or the Constitution. Whether such charges are true, and, if so, what remedial action the court should or may direct, are questions partaking of the merits, and not of jurisdiction to explore the merits.

If, after trial, it be found that appellees do in fact have a responsibility for the property in their care which they are not recognizing adequately, the court's power, at the least, to declare that responsibility and to define that default is not dissipated solely by the circumstance that legal title to the property is in the United States. To hold otherwise would be to say that sovereign immunity forecloses any judicial inquiry whatsoever into the custodianship by a federal official of federal property. There is no magic about real estate, or its ownership by the United States, which hedges it guardians about with an immunity not available to other executants of public policies committed to their care by the Congress.

Knox Hill Tenant Council v. Washington, 145 U.S.App.D.C. 122, 448 F.2d 1045, 1052-53 (1971). Judge McGowan's reasoning in Knox Hill is persuasive and dispositive of the sovereign immunity claim.

The District of Columbia, as have other municipalities, has been unable to successfully maintain refuge behind the shield of sovereign immunity to avoid liability for maintaining an alleged public nuisance. George Washington Inn v. Consolidated Engineering Co., 64 U.S. App.D.C. 138, 75 F.2d 657, 659 (1935). See generally, 18 E. McQuillin, Municipal Corporations § 53.49 (3rd ed. 1963). Indeed, the District of Columbia has heretofore been held liable for maintaining a public nuisance at the Lorton facility. District of Columbia v. Totten, 55 U.S. App.D.C. 312, 5 F.2d 374 (1925). Should the plaintiff prove that the Lorton Complex is in fact a public nuisance, then it would not be a `suitable' place of confinement for persons convicted of crimes in the District of Columbia courts. D.C. Code § 24-425 (1973 ed.). The Attorney General in that event could properly be enjoined from exceeding his statutory authority in so designating the Lorton Reformatory. With regard to the District of Columbia and the individual defendants, sovereign immunity is no bar to this action. The county also named the United States as a defendant. As discussed below, the statutory waivers of sovereign immunity cited by plaintiff are inapplicable to the present action and therefore defendants' motion to dismiss as to the United States is well taken and will be granted.

Jurisdiction over the claim contained in Count III is arguably attained pursuant to 28 U.S.C. § 1331(a).⁴ The action arises under the federal common law of nuisance. The Board of Supervisors alleges that...