In re Cangemi
| Decision Date | 31 March 2017 |
| Docket Number | 12-CV-3989(JS)(SIL) |
| Parties | THOMAS CANGEMI, JODI CANGEMI, MARIANN COLEMAN, FRANCIS J. DEVITO, LYNN R. DEVITO, LEON KIRCIK, ELIZABETH KIRCIK, CAROL C. LANG, TERRY S. BIENSTOCK, DANIEL LIVINGSTON, VICTORIA LIVINGSTON, ROBIN RACANELLI, JAMES E. RITTERHOFF, GALE H. RITTERHOFF, ELSIE V. THOMPSON TRUST, JOHN TOMITZ, and THELMA WEINBERG TRUSTEE OF THE THELMA WEINBERG REVOCABLE LIVING TRUST, Plaintiffs, v. THE UNITED STATES OF AMERICA; THE U.S. ARMY CORPS OF ENGINEERS; COL. JOHN R. BOULE II, individually and in his official capacity; THE TOWN OF EAST HAMPTON; WILLIAM J. WILKINSON, individually and in his official capacity; THE STATE OF NEW YORK; JOE MARTENS, Commissioner of the New York State of Environmental Conservation; and CESAR A. PERALES, Secretary of the New York State Department of State, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Plaintiffs:
Jonathan Halsby Sinnreich, Esq.
Timothy F. Hill, Esq.
Sinnreich Kosakoff & Messina LLP
267 Carleton Ave., Suite 301
Central Islip, New York 11722
For Defendants:
The U.S.A., U.S.
Army Corps of Engineers, and
Col. John R. Boule II
Vincent Lipari, Esq.
United States Attorney's Office
Eastern District of New York
610 Federal Plaza, 5th Floor
Central Islip, New York 11722
Town of East
Hampton
Anthony F. Cardoso, Esq.
Steven C. Stern, Esq.
Sokoloff Stern LLP
179 Westbury Avenue
Carle Place, New York 11514
Plaintiffs allege that their waterfront property has been damaged by two rock jetties (the "Jetties") owned by the Town of East Hampton (the "Town") and repaired by the U.S. Army Corps of Engineers (the "Corps"). Most recently, in a Memorandum and Order ("M&O") dated March 7, 2016, the Court granted and denied aspects of the Government's motion to dismiss. As a result, two defendants remain: the Town and the Government.1
Five motions are pending before the Court. First, the Government urges the Court to reconsider its recent ruling. (Docket Entry 97.) Second, Plaintiffs request that the Court consider their supplemental submissions in opposition to the Government's reconsideration motion. (Docket Entry 117.)Finally, the Government and the Town of East Hampton separately move for summary judgment (Docket Entries 107, 111) and Plaintiffs move for partial summary judgment (Docket Entry 114). For the reasons that follow, the Court has considered Plaintiffs' supplemental submissions. The Government's motions are GRANTED, and the remaining motions are DENIED.
The Court assumes familiarity with the facts and procedural history, which are referenced only as necessary to explain the Court's decision. (Mar. 2016 M&O at 3-6; Mar. 2013 M&O at 4-8.)2
Plaintiffs are property owners in Montauk, New York, which is located within the municipal boundaries of the Town. ( As alleged in their pleadings, the Jetties prevent the natural replenishment of sand and thus damage Plaintiffs' property through accelerated erosion. (Am. Compl, Docket Entry 18, ¶¶ 5, 70.)
Under the Rivers and Harbors Act of 1945, the Corps has exclusive authority over navigation and safety within the federal channel which runs between the Jetties. (Gov't's 56.1 Stmt.,Docket Entry 108, ¶¶ 7, 9-10.) Among other things, the Corps conducts feasibility studies to report to Congress and recommend whether a project should be approved and funded.3 (USACE Report at 3.)
In 1991 and again in 2002, Congress authorized the Corps "to determine the need for measures to address storm damage reduction, shoreline protection, environmental restoration and protection and other allied purposes in the vicinity of LakeMontauk Harbor, East Hampton, New York." (2002 Resolution at 2; 1991 Resolution at 2.) To date, the feasibility study has not been completed. (Pls.' 56.1 Stmt. ¶ 139.)
Following previous motion practice, the remaining defendants are the Town and the Government. As for the Town, the remaining claims are: (1) private nuisance, (2) public nuisance, and (3) trespass. (Am. Compl. ¶¶ 100-12, 136-40.) As for the Government, the remaining claims are: (1) negligence, (2) private nuisance, (3) public nuisance, (4) appropriation of resources--interference with property, and (5) trespass. (Id. ¶¶ 100-12, 131-40.)
The Town has moved for summary judgment, contending that the material facts are undisputed. (See, Town's Summ. J. Mot., Docket Entry 111.) Plaintiffs oppose the motion, arguing that a reasonable factfinder could find that the Town shirked its responsibilities in erosion control. (Pls'. Opp'n Br., Docket Entry 125, at 1-4.)
For the remaining four motions, the centerpiece is the discretionary function exception to the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671. The FTCA generally waivesthe Government's sovereign immunity for monetary liability "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). But the discretionary function exception to this waiver bars any claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).
Previously, the Government moved to dismiss the case for lack of subject matter jurisdiction based on the discretionary function exception. (See, Gov't's 2015 Mot., Docket Entry 71.) The Court permitted claims alleging that the Corps violated a mandatory duty to complete a feasibility study on two separate grounds: (1) a February 2003 Feasibility Cost Sharing Agreement with the New York State Department of Environmental Conservation (the "FCSA") and (2) a February 2002 Corps memorandum that sets forth a "3X3X3 Paradigm."4 (Mar. 2016 M&O at 17-19.)
Now the Government urges the Court to reconsider its ruling because the Court overlooked the FCSA's termination provision, which the Corps may invoke at any time with thirty days'notice. (Gov't's Recons. Br., Docket Entry 98, at 1-5.) As for the 3X3X3 Paradigm, the Government moves for summary judgment, contending that the Corps did not violate a mandatory directive because the completion date of the feasibility study has been moved to April 17, 2017. (Gov't's Summ. J. Br., Docket Entry 110, at 10-11.) Assuming without conceding that the Government's motions are successful, Plaintiffs filed supplemental letter briefs arguing that the Court has subject matter jurisdiction over the public nuisance claim under federal common law.
Separately, Plaintiffs moved for partial summary judgment against the Government on the issue of causation--that is, whether the Jetties caused accelerated erosion. (Pls.' Summ. J. Br., Docket Entry 114-1, at 7.)
A motion for reconsideration is appropriate if "'the moving party can point to controlling decisions or data that the court overlooked--matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" Meyer v. Kalanick, 185 F. Supp. 3d 448, 451-52 (S.D.N.Y. 2016) (quoting Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
The Government urges the Court to reconsider its ruling that the FCSA imposes a mandatory directive.5 (Gov't's Recons. Br. at 1-5.) Three provisions of that agreement are relevant here:
(FCSA Preamble at 3, Art. II at 4, Art. X at 8) (emphasis added).6
In determining whether the discretionary function applies, the Court engages in a two-step inquiry: (1) whether the challenged action involves an "element of judgment or choice" and (2) whether the choice is "susceptible to policy analysis" and thus "of the kind that the discretionary function exception was designed to shield." United States v. Gaubert, 499 U.S. 315, 322-25, 111 S. Ct. 1267, 1273-75, 113 L. Ed. 2d 335 (1991). In its March 2016 M&O, the Court analyzed the first step and found that the FCSA issued a mandatory directive under Article II: (Mar. 2016 M&O at 19) (internal quotation marks and citation omitted).
Upon review, the Court overlooked the FCSA's termination provision in Article X. That language, interpreted together with Article II, provide the Corps with discretion to terminate the FCSA at any time with thirty days' notice. Thus, under the firststep, the challenged action is discretionary because the FCSA's use of the word "shall" is qualified by ...
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