Envirotech Sanitary Systems, Inc. v. Shoener

• Citation: 745 F. Supp. 271
• Decision Date: 14 March 1990
• Docket Number: No. Civ. 90-0073.,Civ. 90-0073.
• Parties: ENVIROTECH SANITARY SYSTEMS, INC., Plaintiff, v. Edward SHOENER; and Department of Environmental Resources, Defendants.
• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

745 F. Supp. 271

ENVIROTECH SANITARY SYSTEMS, INC., Plaintiff, v. Edward SHOENER; and Department of Environmental Resources, Defendants.

No. Civ. 90-0073.

United States District Court, M.D. Pennsylvania.

March 14, 1990.

COPYRIGHT MATERIAL OMITTED

Brigid E. Carey, Thomas J. Foley, Jr., Scranton, Pa., Anthony J. Mazullo, Foley, McLane, Nealon, Foley & McDonald, Scranton, Pa., for plaintiff.

Kathryn L. Mershimer, Deputy Atty. Gen., Harrisburg, Pa., for defendants.

CONABOY, Chief Judge.

I

On January 12, 1990, Plaintiff filed a complaint claiming that the Defendants violated Envirotech's constitutional rights to equal protection and due process of law by inappropriately processing its application for a waste disposal permit.¹ In the form of temporary relief, the Plaintiff petitioned this Court for an injunction prohibiting the Defendants from issuing any decision upon Envirotech's initial application for a solid waste disposal permit and to otherwise maintain the present status quo existing between the parties to this matter until further order of this Court.

After giving the parties an opportunity to respond to the petition², this court heard oral arguments by counsel in open court on March 9, 1990. This memorandum shall address the issues raised at that hearing for injunctive relief, including whether this action should proceed in light of the eleventh amendment bar to suits against a state. We are of the opinion that it should not and, accordingly, this matter shall be dismissed.

II

In its complaint, Plaintiff seeks to obtain equitable relief against Defendants DER and Edward Shoener for what is perceived to be a violation of Envirotech's rights to due process and equal protection under the fifth and fourteenth amendment to the federal Constitution. Envirotech also seeks compensatory and punitive damages from Edward Shoener, individually, for "subjecting Envirotech and/or causing Envirotech to be subjected to, an alleged deprivation of Envirotech's constitutional rights."

The alleged deprivation revolves around an application filed by Envirotech on December 31, 1987, to obtain a permit for the operation of a municipal waste landfill in Susquehanna County, Pennsylvania. The parties have indicated that such applications have two parts, commonly known as Phase I and Phase II. At this juncture, Envirotech's application is in the Phase I stage and, according to the affidavit of William McDonald, it is the intent of DER to deny this portion of the application. Doc. No. 3, Exhibit A.

Plaintiff contends, however, that the pending denial is a result not of the alleged deficiencies cited by the DER in their correspondence, but rather, as a result of the ultra vires acts of Defendant Shoener. In dealing with Envirotech's application, it is alleged that Shoener's actions were outside the scope of his legal authority under the Solid Waste Management Act of Pennsylvania (hereinafter "SWMA", 35 P.S. § 6018.101 et seq.). These improper actions, in turn, are alleged to have violated Envirotech's constitutional rights to due process and equal protection.

Plaintiff seeks to enjoin the Defendants from acting adversely on its application for several reasons. First, the issuance of a denial by DER of Envirotech's Phase I application would allegedly trigger Envirotech's contractual obligations to third parties, thus forcing the immediate repayment of all long-term loan obligations. This would essentially "put Envirotech out of business" and cause Envirotech's shareholders to suffer a Six Million Dollar out-of-pocket loss. Second, Envirotech seems to infer that post-denial remedies are inadequate due to a "three-year backlog" which exists at the appellate administrative board. Accordingly, Plaintiff seeks to enjoin the Defendants from acting on the permit application until this court hears Envirotech's arguments concerning the alleged constitutional deprivations.

III

Both sides agree that a state has the inherent authority to control certain conduct to benefit and preserve the health, safety, and welfare of its citizenry. Under that authority, commonly know as a sovereign's "police power", a state may issue regulations that limit and control certain activities. If a party complies with those regulations, that party is entitled to a permit or a license to operate in the area governed by the regulations, such as a landfill in this case. The Commonwealth, of course, retains the right to determine whether or not the regulations have been complied with and also has a right to formulate a process which will be used to determine if those regulations have been fulfilled.

For instance in this case, the Commonwealth would argue that even if the court denies the issuance of a temporary restraining order and a letter of denial by the DER is issued, the Plaintiff still has the right to appeal that determination to the Environmental Quality Board which will then hold a hearing to determine whether or not the denial was arbitrary and capricious.

Plaintiff agrees in part with the Defendants' argument. Envirotech acknowledges the right of the Commonwealth to issue regulations which must be complied with before a permit will be issued. But they claim they have complied with all the regulations and indeed, were orally notified that they were in compliance by the appropriate governmental official, Mr. David Lamareaux. But in spite of such notice, another official of the Commonwealth, the Defendant, Mr. Shoener, arbitrarily and illegally denied their right to proceed and is the real author of the letter of denial which will be issued to them. They argue, then, that an official of the Commonwealth is violating the Commonwealth's own regulations and is certainly being arbitrary and capricious, at the least, in denying the Plaintiff its right to proceed beyond the first step in this landfill application process. In addition, Plaintiff argues it would be foolhardy to say that its rights are adequately protected by an appeal to the review board, because, they assert, it takes at least three years to get a hearing before that board, although the Commonwealth contests this assertion.

These arguments raise several problems for the court at this stage of the proceedings. The first is that we have a fact dispute as to the actions of the Defendant Shoener which normally is not resolved at a hearing for injunctive relief and would have to be resolved at a further hearing, if at all, by this Court. Second is a fact dispute on whether or not the time element needed to get a hearing, or to complete a hearing, before the review board, is of such importance that it would cause this Court to override concepts of comity and grant the very unusual relief of issuing a temporary restraining order, even if we were to believe that it would take an extended period of time to gain a hearing before the board.

Defendants oppose the granting of an injunction claiming that this court does not have jurisdiction over this matter. Further, the Commonwealth argues that an examination of Plaintiff's request shows that Envirotech has failed to satisfy any of the four elements necessary to obtain injunctive relief³ nor does its claims rise to the level of a constitutional deprivation.

IV

A. The Jurisdictional Challenge.

Plaintiff has sued for both injunctive relief and monetary damages, the latter applying only against Defendant Shoener in his individual capacity. Defendants have challenged the propriety of Plaintiff's claims against both Defendants on the basis that the eleventh amendment to the United States Constitution bars this suit.⁴

That amendment provides, in relevant part:

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.

USCA, Cons. Amend. 11.⁵

The eleventh amendment is generally recognized as a bar to suits against a State unless specifically overridden by act of Congress⁶ or unless the State has consented to be sued.⁷ Vermett v. Hough, 606 F.Supp. 732, 742 citing Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Fizpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

As the Supreme Court explained in Pennhurst v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984):

"The Eleventh Amendment is an explicit limitation of the judicial power of the United States." Missouri v. Fiske, 290 U.S., 18 at 25 54 S.Ct. 18, 20, 78 L.Ed. 145. (1933) It deprives a federal court of power to decide certain claims against States that otherwise would be within the scope of Art. III's grant of jurisdiction. For example, if a lawsuit against state officials under 42 U.S.C. § 1983 alleges a constitutional claim, the federal court is barred from awarding damages against the state treasury even though the claim arises under the Constitution. See Quern v. Jordan, 440 U.S. 332 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Similarly, if a § 1983 action alleging a constitutional claim is brought directly against a State, the Eleventh Amendment bars a federal court from granting any relief on that claim. See Alabama v. Pugh, 438 U.S. 781 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). The Amendment thus is a specific constitutional bar against hearing even federal claims that otherwise would be within the jurisdiction of the federal courts.

Pennhurst 465 U.S. at 119, 104 S.Ct. at 918.

Thus, the principle of sovereign immunity has been declared a constitutional limitation on the federal judicial power established in Article III:

"That a State may not be sued without it consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the constitution of the United States that it has become established by repeated decisions of this court that the

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