Connecticut Action Now. Inc. v. Roberts Plating Co.

• Decision Date: 21 March 1972
• Docket Number: No. 255,Docket 71-1674.,255
• Citation: 457 F.2d 81
• Parties: CONNECTICUT ACTION NOW, INC., et al., Plaintiffs-Appellants, v. ROBERTS PLATING COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

457 F.2d 81 (1972)

CONNECTICUT ACTION NOW, INC., et al., Plaintiffs-Appellants, v. ROBERTS PLATING COMPANY, INC., Defendant-Appellee.

No. 255, Docket 71-1674.

United States Court of Appeals, Second Circuit.

Argued November 9, 1971.

Decided March 21, 1972.

David B. Beizer, New Haven, Conn., for plaintiffs-appellants.

Charles J. Negaro, Waterbury, Conn., for defendant-appellee.

Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, and Bernie Rothbaum, Jr., Attys., Dept. of Justice, Washington, D. C., for the United States, amicus curiae.

Before FRIENDLY, Chief Judge, FEINBERG, Circuit Judge, and DAVIS, Judge.^*

DAVIS, Judge:

This is the eighth recorded attempt in the last year or two by environmentalists to have a federal court hold that private persons may sue in qui tam for fines under §§ 13 and 16 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 407, 411, even though the Department of Justice fails or refuses to proceed under those provisions. The previous decisions have all been adverse,¹ as was the ruling below of then Chief Judge Timbers for the District Court for the District of Connecticut. 330 F.Supp. 695 (D.Conn. 1971). The Department of Justice, which filed a brief amicus curiae at our request, takes the same position. We agree and also hold, along with several of the earlier cases as well as the Department, that private plaintiffs, suing on behalf of the public, are similarly barred from seeking to enjoin violations of § 13 (often called the Refuse Act).

The complaint alleges that the defendant, Roberts Plating Company, Inc., has discharged and continues to discharge waste materials from its metal finishing plant into the navigable waters of the Naugatuck and Housatonic Rivers in Connecticut, and into Long Island Sound, without the required permit. Plaintiff Connecticut Action Now, Inc. is a non-profit conservation-oriented body and the individual plaintiffs are citizens of Connecticut. None is a riparian owner or user, and they allege no special relationship to the particular rivers so as to set themselves apart from the general public. The complaint asserts that, although plaintiffs informed the United States Attorney of defendant's polluting activities and requested him both to prosecute and to seek an injunction, he "has not taken and will not in the foreseeable future take any action to enforce the provisions of Title 33 U.S.C. §§ 407 and 411 against this defendant polluter." Roberts Plating moved to dismiss on several grounds, including the plaintiffs' lack of standing. The District Court dismissed, holding that "there is no right, prior to conviction, to maintain a private qui tam action under 33 U.S.C. § 411 to recover criminal penalties for unlawful discharge into navigable waters"; that the court lacked jurisdiction under 28 U.S.C. § 2461 (dealing with recovery of a "civil fine, penalty, or pecuniary forfeiture") to entertain an action to recover a criminal fine or forfeiture; and that plaintiffs failed to plead or prove the requisite jurisdictional amount to maintain an injunctive action under 28 U.S.C. § 1331. 330 F.Supp. at 699.^1a

Qui tam action: Section 13 of the 1899 statute, 33 U.S.C. § 407, forbids discharge of waste into navigable waters,² while § 16, 33 U.S.C. § 411, imposes the sanction.³ Plaintiffs invoke, of course, the last clause of § 16: "one-half of said fine to be paid to the person or persons giving information which shall lead to conviction." The difficulty, as all the prior decisions on the point have noted, is that Congress has imposed a criminal penalty to be enforced by the Attorney General, without saying or suggesting that the informer can proceed on his own against the polluter, before conviction is obtained by federal prosecutors.

In our jurisprudence, there is no common law right to maintain a qui tam action; authority must always be found in legislation. United States ex rel. Marcus v. Hess, 317 U.S. 537, 541, 63 S.Ct. 379, 87 L.Ed. 443 (1943). "It is settled law that an informer can in no case sue in his own name to recover a forfeiture given in part to him, unless the right to sue is accorded by the statute raising the forfeiture." Drew v. Hilliker, 56 Vt. 641 (1884). That is why the terms and structure of the particular statute are decisive. Cf. United States ex rel. McCans v. Armour & Co., 146 F.Supp. 546 (D.D.C. 1956), aff'd per curiam, 102 U.S.App.D.C. 391, 254 F.2d 90 (C.A.D.C. 1958), cert. denied, 358 U.S. 834, 79 S.Ct. 57, 3 L.Ed.2d 152; United States v. Aster, 176 F.Supp. 208 (E.D.Pa. 1959), aff'd, 275 F.2d 281 (3rd Cir. 1960), cert. denied, 364 U.S. 894, 81 S.Ct. 223, 5 L.Ed.2d 188. All of the past rulings (of which we are aware) upholding a private right to sue turned on language which stated expressly or clearly implied that the informer could begin the proceeding without waiting for governmental action.⁴ In Marcus v. Hess, supra, 317 U.S. at 540, 63 S.Ct. at 379 the most recent Supreme Court authority, the statute provided that "suit may be brought and carried on by any person, as well for himself as for the United States."

Even if we accept at face value the criticized dictum in Marcus, 317 U.S. at 541 n. 4, 63 S.Ct. at 382, that "statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue. Adams v. Woods, 2 Cranch 336, 6 U.S. 336, 2 L.Ed. 297,"⁵ we find that the legislation in this case is not neutral but leans strongly toward preclusion of the private informer. Section 413 of Title 33 is explicit that "The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 * * * of this title; and it shall be the duty of United States attorneys to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of the Army or by any of the officials hereinafter designated * * *." The statutory scheme is apparent and consistent: § 407, supra, note 2, establishes the offense; § 411, supra, note 3, provides the sanction for violations; and § 413, supra, directs that enforcement and prosecution proceedings be conducted by the Department of Justice. It is hard to look at this pattern except as a mandate that the Federal Government is to be the initiator of the proceeding.

Even where legislation was more confused as to the relationship between the federal responsibility for prosecution and the role of the private informer, the courts have opted for the primacy of the Justice Department. In Williams v. Wells Fargo & Co. Express, 177 F. 352 (8th Cir. 1910), the difficulty was that Rev.Stat. 4059, 17 Stat. § 325 (1872), provided that one-half of the penalties imposed for violation of laws affecting the Post Office be paid to the person "informing and prosecuting for the same", while Rev.Stat. 919 declared that "all suits arising under the postal laws, shall be brought in the name of the United States." The court held that although the former provision, taken alone, would authorize a qui tam suit, the sections, when read together, showed a Congressional purpose that only the United States should bring the action. Similarly, in Rosenberg v. Union Iron Works, 109 F. 844, 846 (N.D.Cal.1901), an action under the Alien Contract Labor Law of February 26, 1885, § 3, 23 Stat. 332, the statute provided that the penalty "may be sued for and recovered by the United States or by any person who shall first bring his action therefor . . . And it shall be the duty of the district attorney . . . to prosecute any case at the expense of the United States." Though the language was much stronger in its intimation of a qui tam proceeding than here, the opinion insisted that all actions must be commenced by the United States Attorney.⁶

Moreover, the plain implication of the format of § 411, with its language of "misdemeanor", "on conviction", "to conviction", "fine" or "imprisonment", "fine and imprisonment", is that there must be a criminal proceeding, a conviction obtained as a result of that proceeding, and the imposition of a discretionary fine or sentence of imprisonment as punishment for the crime. In this respect, the statute is the same as § 4 of the Smuggling Act of July 18, 1866, 14 Stat. 178, 179, which United States v. Claflin, 97 U.S. 546, 547, 24 L.Ed. 1082 (1878), summarily held "contemplated a criminal proceeding and not a civil action of debt. It imposed a penalty for receiving, concealing, buying, selling, or in any manner facilitating the transportation, concealment, or sale of goods illegally imported. The penalty was a fine on conviction, not exceeding $5,000 nor less than $50, or imprisonment, or both, at the discretion of the court. It is obvious, therefore, that its provisions cannot be enforced by any civil action, certainly not in an action of debt."

Appellants discern a conflict between Claflin and Stockwell v. United States, 13 Wall. 531, 80 U.S. 531, 20 L.Ed. 491 (1871), written by the same justice, but in that earlier case (allowing civil recovery by the Government) the sanction was not a variable fine or imprisonment, to be imposed by the sentencing judge, but simply forfeiture of double the amount of the illegally imported goods. Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720 (1909), which permitted recovery by the United States of an immigration penalty through a civil action, took pains to say (p. 108, 29 S.Ct. page 477): "Of course, if the statute by which the penalty was imposed contemplated recovery only in a criminal proceeding, a civil remedy could not be adopted. United States v. Claflin, 97 U.S. 546."⁷ Other Supreme Court cases allowing a civil penalty (United States v. Zucker, 161 U.S. 475, 16 S.Ct. 641, 40 L.Ed. 777 (1896); United States v. Regan, 232 U.S. 37, 34 S.Ct. 213, 58 L.Ed. 494 (1914)) likewise involved legislation different from §§ 407 and 411 of Title 33 in that the other action was merely for...