Gardner v. U.S. Army Corps of Engineers, 1:05CV00088-WRW.
| Decision Date | 03 January 2007 |
| Docket Number | No. 1:05CV00088-WRW.,1:05CV00088-WRW. |
| Citation | 504 F.Supp.2d 396 |
| Parties | Kevin GARDNER, et al., Plaintiffs v. U.S. ARMY CORPS OF ENGINEERS; Colonel Wally Walters, District Engineer, Little Rock District, U.S. Army Corps of Engineers; Thomas S. Park, Operations Manager, Greers Ferry Project Office; and Joseph T. Benton, III., Defendants. |
| Court | U.S. District Court — Eastern District of Arkansas |
Richard H. Mays, Law Office of Richard H. Mays, Little Rock, MN, for Plaintiffs.
E. Fletcher Jackson, U.S. Attorney's Office, Little Rock, AR, R. Bryan Tilley, R. Bryan Tilley Law Firm, Heber Springs, AR, for Defendants.
Pending is separate Defendants U.S. Army Corps of Engineers, Colonel Wally Walters, and Thomas S. Park's ("Corps") Motion to Dismiss.1 Plaintiffs ("Gardners") responded,2 the Corps filed a Reply,3 and the Gardners filed a Surreply. The Corps asserts that this action is brought under the Administrative Procedure Act ("APA"), and that Plaintiffs have failed to exhaust their administrative remedies. Alternatively, the Corps argues that there is no final agency action.
The Gardners filed a complaint for injunctive and declaratory relief asking that the Corps be required to issue them a permit for a private boat dock. The Gardners purchased land and applied for the permit on a flowage easement of Greers Ferry Lake. The lake shore is managed by the Corps. The previous owners of this property had already applied for and were given permission to build a dock, but their permit application was placed in suspension, pending the outcome of litigation challenging the validity of the Corps' Shoreline Management Plan. Before selling their home to the Gardners, the previous owners granted an access easement to an association of land owners in the area. These land owners are represented by Defendant Joseph Benton III ("Benton"), and also claim they are entitled to a dock permit in the same location — in the Gardners' back yard.
Shortly after buying the property, the Gardners contacted Mr. Thomas Park ("Park"), Operations Manager of the Greers Ferry Project Office, to secure their dock permit.4 Mr. Park has the authority to issue Shoreline Use Permits, such as dock permits. The Gardners also met with Mr. Bennie Rorie ("Rorie"), Natural Resource Specialist with the Corps, to confirm the site conditions for the dock.
During this application process, Rorie and Park discovered that a third-party-Benton — had a competing claim to the water flow easement.5 Based on this, the Corps refused to issue a permit to the Gardners until the easement's ownership was either voluntarily settled or settled by a court order.
In its Answer and Motion to Dismiss, the Corps alleges that: (1) the Gardners have been in a long-running land dispute over the boat dock; (2) this dispute involves a conflict over access to the water easement, and a conflict over which party filed first for a permit; (3) an administrative appeal process is available under the Greers Ferry Shoreline Management Plan; (4) the Gardners filed this lawsuit without following this process and appealing to the Division Engineer; (5) under the Shoreline Management Plan, the Corps has the most experience with managing limited shoreline resources; (6) the Gardners did not exhaust their administrative remedy and are seeking to settle a local land dispute by involving the Corps and the federal courts. In its Reply to the Gardners' Response to the Motion to Dismiss, the Corps also asserted there is no final agency action.
The Gardners counter that the administrative appeal process is futile because the Corps has not denied their permit application, but has refused to consider it — and this is not the kind of decision that can be administratively appealed.
The Gardners have also sued Benton and have asked that he be compelled to assert any claims he may have in this action. Jurisdiction is asserted under the Declaratory Judgment Act.6
It is well established that a plaintiff generally must exhaust his administrative remedies before proceeding in federal court.7 Exhaustion is generally required because it (1) prevents premature interference with agency processes; (2) allows the agency to function efficiently and have an opportunity to correct its own errors; (3) affords the parties and the courts the opportunity to benefit from the agency's experience and expertise; (4) allows the agency to compile a record which is adequate for judicial review; and (5) it promotes effective and efficient judicial review by ensuring that such review is of a fully developed factual record.8
Exhaustion of administrative remedies is favored, but may be excused by a limited number of exceptions to the general rule.9 "A party may be excused from exhausting administrative remedies if the complaint involves a legitimate constitutional claim, if exhaustion would cause irreparable harm, if further administrative procedures would be futile, or if the issues to be decided are primarily legal rather than factual."10
A party that is challenging the agency action has the burden of proving that exhaustion should be excused.11 The Gardners have the burden to show that they should be excused because the administrative procedures would be futile.
An administrative remedy will be deemed futile if there is no doubt that the agency cannot provide relief.12 The question, then, is whether the Division Engineer has the power to grant relief to the Gardners by issuing a dock permit.
In some cases, exhaustion is excused when it "would be futile because of the certainty of an adverse decision."13 This exception is limited to instances in which "the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further."14
The APA provides for review of agency action but only if they action is final.15 An administrative action is final if it marks the consummation of the agency's decisionmaking process and if it "determines rights or obligations from which legal consequences will flow."16 "The finality doctrine is concerned with whether the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury."17
The APA's provisions for judicial review of "agency actions" are contained in 5 U.S.C. §§ 701-706. Those provisions state that any person "adversely affected or aggrieved" by agency action,18 including a failure to act, is entitled to judicial review as long as the action is a "final agency action for which there is no other adequate remedy."19
But, before gaining access to federal courts, a party must first clear the hurdle of 5 U.S.C § 701(a). This subsection gives courts the power of review, except under the following circumstances: (1) the statute, on which the action is based, precludes judicial review; or (2) the action is committed to an agency's discretion by law.20
The second exception is a very narrow one, and is only applicable in those rare instances where, there is no law to apply.21 Under 5 U.S.C. 701(a)(2), if no judicial standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for abuse of discretion.22 In considering whether administrative action is capable of judicial review under the APA, the test is not whether a statute, lacks applicable law, but, whether, in a given case, there is no law to be applied.23 Thus, the existence of some law that is generally applicable to the subject matter will not necessarily remove agency discretion. There is law to apply, only if a specific statute or regulation limits the agency's discretion to act in the specific manner which is challenged.24
When an agency refuses to act, it does not exercise coercive power over an individual's liberty or property rights, and, thus, does not infringe upon areas that courts often are called upon to protect. In contrast, when an agency affirmatively acts as an enforcer, the action can be reviewed to determine whether the agency exceeded its enforcement power.25 Typically a decision not to act is considered discretionary and outside judicial review. But, courts have drawn a distinction between an agency's decision not to act with respect to an entire class, as opposed to decisions that affect only one individual.26
When a statute or act contains no standard governing a denial of a waiver request, and when the waiver affects only one party, then the denial is not subject to judicial review.27 Similarly, agency decisions to deny the allocation of electric power to a single city, or to refuse to grant an exemption to one state, are not subject to judicial review.28 An agency's decision not to renew an examiner's authority is also unreviewable.29 Finally, a prosecutor's decision not to prosecute cannot be reviewed.30
In determining whether a matter has been committed solely to agency discretion, consideration is given to the nature of the administrative action at issue and the language and structure of the legal standards. In other words, when the action's nature is not affirmative action, and when it applies only to a single party — generally, it is within the agency's discretion and is not reviewable. Moreover, the language of the underlying regulation or statute is important. When a statute or regulation uses the word "may," it lacks a clear legal guideline.31
The Declaratory Judgment Act states "["[i]n a case of actual controversy within its jurisdiction, ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought."32 The Act is available in federal courts only in cases involving an actual...
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McClung v. Paul
...is no law to be applied in a given case. Strickland v. Morton, 519 F.2d 467, 470 (9th Cir. 1975); Gardner v. U.S. Army Corps of Engineers, 504 F. Supp. 2d 396, 399 & n.23 (E.D. Ark. 2007) (citing same). "Thus, the existence of some law that is generally applicable to the subject matter will......