Burnette v. Carothers

• Decision Date: 01 August 1998
• Docket Number: Docket Nos. 98-7835
• Citation: 192 F.3d 52
• Parties: (2nd Cir. 1999) MARIE G. BURNETTE, RALPH G. BURNETTE, JR., Plaintiffs-Appellants, BRIAN E. BURNETTE, A Minor, by his parents and next friends, Ralph & Marie Burnette, et al., Plaintiffs, v. LESLIE CAROTHERS, ENVIRONMENTAL PROTECTION DEPARTMENT OF CONNECTICUT, Consolidated-Defendants-Appellees, ARTHUR J. ROCQUE, JR., Commissioner Environmental Protection, LOWELL P. WEICKER, JR., Governor, BRUCE L. MORRIS, CT Dept. of Public Works, LARRY MEACHUM, Commissioner Official Capacity, CT Dept. of Corrections, STATE OF CONNECTICUT, JOHN G. ROWLAND, Governor, THEODORE R. ANSON, Commissioner, JOHN J. ARMSTRONG, Commissioner, Defendants-Appellees. (L), 98-9003(CON)
• Court: U.S. Court of Appeals — Second Circuit

Page 52

192 F.3d 52 (2nd Cir. 1999)

MARIE G. BURNETTE, RALPH G. BURNETTE, JR., Plaintiffs-Appellants, BRIAN E. BURNETTE, A Minor, by his parents and next friends, Ralph & Marie Burnette, et al., Plaintiffs, v. LESLIE CAROTHERS, ENVIRONMENTAL PROTECTION DEPARTMENT OF CONNECTICUT, Consolidated-Defendants-Appellees, ARTHUR J. ROCQUE, JR., Commissioner Environmental Protection, LOWELL P. WEICKER, JR., Governor, BRUCE L. MORRIS, CT Dept. of Public Works, LARRY MEACHUM, Commissioner Official Capacity, CT Dept. of Corrections, STATE OF CONNECTICUT, JOHN G. ROWLAND, Governor, THEODORE R. ANSON, Commissioner, JOHN J. ARMSTRONG, Commissioner, Defendants-Appellees.

Docket Nos. 98-7835(L), 98-9003(CON)

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: April 9, 1999

Decided: September 13, 1999

Appeal from a dismissal of a citizen enforcement action and from an adverse grant of summary judgment on a CERCLA claim by the United States District Court for the District of Connecticut (Ellen Bree Burns, Judge). We hold that appellants' citizen suit brought pursuant to the Clean Water Act, Resource Conservation and Recovery Act, and CERCLA as well as appellants' claim for response costs under CERCLA are barred by the Eleventh Amendment. We therefore affirm. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] RALPH G. BURNETTE, JR., and Marie G. Burnette, pro se, Somers, Connecticut, for Plaintiffs-Appellants.

ROBERT D. SNOOK, Assistant Attorney General (Richard Blumenthal, Attorney General of Connecticut, of counsel), Hartford, Connecticut, for Defendants-Appellees Lowell P. Weicker, Jr., Governor, Bruce L. Morris, CT Dept. of Public Works, Larry Meachum, Commissioner Official Capacity, CT Dept. of Corrections, State of Connecticut, John G. Rowland, Governor, Theodore R. Anson, Commissioner, John J. Armstrong, Commissioner.

ROBERT B. TEITELMAN, Assistant Attorney General (Richard Blumenthal, Attorney General of Connecticut, of counsel), Hartford, Connecticut, for Defendants-Appellees Leslie Carothers, Environmental Protection Department of Connecticut, and Arthur J. Rocque, Jr., Commissioner Environmental Protection.

Before: WINTER, Chief Judge, NEWMAN, and SOTOMAYOR, Circuit Judges.

WINTER, Chief Judge:

This is an appeal from the dismissal of a citizen enforcement action brought pursuant to the citizen suit provisions of the Clean Water Act ("CWA"), 33 U.S.C. § 1365, the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9659, as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986). Because we agree with the district court that the Eleventh Amendment bars the relief sought by the citizen suit and the action for recovery of response costs, we affirm.¹

Appellants, Marie G. Burnette and Ralph G. Burnette, Jr., appearing pro se, are homeowners in the Rye Hill section of Somers, Connecticut. They filed this action against various state officers in their official capacities, claiming that hazardous substances had emanated, and continued to emanate, from the Connecticut Correctional Institute ("CCI"), a prison located north of Rye Hill and operated by the Connecticut Department of Corrections. Appellants alleged that these toxic substances had polluted and were continuing to pollute their on-site water wells. They sought injunctive and monetary relief.² In addition, they sought reimbursement from defendants for response costs which were alleged to have been incurred as a result of "a release or threatened release of hazardous substances" from CCI. See 42 U.S.C. § 9607(a)(4)(B). The complaint also included claims under CERCLA for a declaratory judgment, future response costs, and contribution, pursuant to 42 U.S.C. § 9613(f)(1).

Arguing that the case was barred by the Eleventh Amendment, appellees moved to dismiss for lack of subject matter jurisdiction. They also moved for summary judgment on the claim for response costs, arguing that the Eleventh Amendment prohibited recovery of monetary damages. The district court dismissed all claims, holding that the State and its agents were immune from suit under the Eleventh Amendment. In addition, the court granted appellees' motion for summary judgment, holding that appellants were not entitled to response costs from the State or to potential contribution costs because such recovery would violate the State's sovereign immunity. This appeal followed.

DISCUSSION

a) Citizen Suit

We review de novo a dismissal pursuant to Fed. R. Civ. P. 12(c). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. See id. We may dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 46 (1957).

In dismissing the action, the district court held that Congress did not, by authorizing environmental citizen suits, intend to abrogate the states' sovereign immunity. It also concluded that the State of Connecticut did not waive its sovereign immunity as to plaintiffs' CWA, RCRA, and CERCLA claims. We agree.

The Eleventh Amendment provides that: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "While the Amendment by its terms does not bar suits against a State by its own citizens, [the Supreme] Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). State immunity extends to state agencies and to state officers who act on behalf of the state. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-47 (1993). Thus, when the state is the real party in interest, the Eleventh Amendment generally bars federal court jurisdiction over an action against a state official acting in his or her official capacity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984).³

In certain circumstances, however, Congress may abrogate the states' constitutionally secured immunity from suit in federal court. To do so, Congress must make "'its intention unmistakably clear in the language of the statute.'" Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). "A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically." Atascadero, 473 U.S. at 246.

The CWA, RCRA, and CERCLA contain substantially identical provisions permitting citizens to sue as private attorneys general in circumstances where government authorities have, after notice, failed to take steps to remedy particular environmental harms. These provisions state that "any citizen may commence a civil action on his own behalf -- (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of [the Act]." 33 U.S.C. § 1365(a)(1) (emphasis added); see also 42 U.S.C. § 6972; 42 U.S.C. § 9659. These provisions do not unequivocally express Congress's intent to abrogate sovereign immunity and subject states to suit. Far from evidencing a Congressional intent to do away with sovereign immunity, these provisions are expressly limited by the Eleventh Amendment. See Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 423 (9th Cir. 1996) (district court properly dismissed all claims under CWA against state agency on Eleventh Amendment immunity ground); Froebel v. Meyer, 13 F. Supp. 2d 843, 849-50 (E.D. Wis. 1998) ("[T]he plainest meaning" of language in CWA is that "the Eleventh Amendment retains some presumptive force . . . ."); Rowlands v. Pointe Mouillee Shooting Club, 959 F. Supp. 422, 426 (E.D. Mich. 1997) (RCRA citizen suit provision operates within the Eleventh Amendment), aff'd, 182 F.3d 918 (6th Cir. 1999). The district court was, therefore, correct in holding that these citizen suit provisions do not abrogate Connecticut's sovereign immunity and that the state defendants are therefore entitled to immunity from suit in federal court.

Appellants assert, however, that even if a citizen suit would ordinarily be barred under the Eleventh Amendment, immunity does not apply here because the complaint is in the nature of a qui tam action and the United States is the real party in interest. We disagree. In Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972), we held that "there is no common law right to maintain a qui tam action; authority must always be found in legislation. . . . [T]he terms and structure of the particular statute are decisive." Id. at 84. The statutes at issue do not grant citizens the right to sue on behalf of the United States nor do they establish a formula for recovering civil penalties. To the contrary, the citizen suit provisions authorize "any citizen [to] commence a civil action on his own behalf." 33 U.S.C. § 1365(a) (emphasis added); see also 42 U.S.C. § 6972; 42 U.S.C. § 9659. The United States is not, therefore, the real party in interest here.

Appellants suggest on appeal that some of their claims...