Jurist v. Long Island Power Auth.

• Decision Date: 10 March 2020
• Docket Number: 19-CV-3762 (MKB) (LB)
• Parties: HERBERT H. JURIST, SUSAN JOHNSON, DONALD POWERS, ALENA WALTERS, LINDA JURIST, ROBERT SLAWSKI and STEVE WALTER, Plaintiffs, v. THE LONG ISLAND POWER AUTHORITY, THE POWER AUTHORITY OF THE STATE OF NEW YORK, ERIK KULLESEID, COMMISSIONER OF THE NEW YORK STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION, THE NEW YORK STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION ("NYS DEC"), BASIL SEGGOS, COMMISSIONER OF NYS DEC, THE BUREAU OF OCEAN ENERGY MANAGEMENT, THE NEW YORK STATE DEPARTMENT OF STATE and THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, Defendants.
• Court: U.S. District Court — Eastern District of New York

HERBERT H. JURIST, SUSAN JOHNSON, DONALD POWERS, ALENA WALTERS,LINDA JURIST, ROBERT SLAWSKI and STEVE WALTER, Plaintiffs, v. THE LONG ISLAND POWER AUTHORITY, THE POWER AUTHORITY OF THE STATE OF

NEW YORK, ERIK KULLESEID, COMMISSIONER OF THE NEW YORK STATE

OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION, THE NEW YORK

STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION,

THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION ("NYS DEC"),

BASIL SEGGOS, COMMISSIONER OF NYS DEC, THE BUREAU OF OCEAN ENERGY

MANAGEMENT, THE NEW YORK STATE DEPARTMENT OF STATE

and THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, Defendants.

19-CV-3762 (MKB) (LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 10, 2020

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiffs Herbert H. Jurist, Susan Johnson, Donald Powers, Alena Walters, Linda Jurist, Robert Slawski, and Steve Walter,¹ proceeding pro se, commenced the above-captioned action on June 3, 2019 in the New York Supreme Court, Nassau County, against Defendants the LongIsland Power Authority, the Power Authority of the State of New York, Commissioner of the New York State Office of Parks and Recreation and Historic Preservation Erik Kulleseid, the New York State Office of Parks and Recreation and Historic Preservation, the New York State Department of Environmental Conservation ("NYS DEC"), Commissioner of NYS DEC Basil Sagos, the New York State Department of State, and the New York State Energy Research and Development Authority (collectively, the "State Defendants"), and the Bureau of Ocean Energy Management ("BOEM"). (Notice of Removal ¶ 1, Docket Entry No. 1.) On June 27, 2019, BOEM removed the action to the Eastern District of New York. (Id.) Plaintiffs assert claims under various state and federal laws in connection with the construction of an Energy Education Center in Jones Beach State Park. (Verified Pet. & Compl. ("Compl.") ¶¶ 1-3, annexed to Notice of Removal as Ex. A, Docket Entry No. 1-1.)

On July 11, 2019, Walters moved to remand the case to state court. (Pl. Mot. to Remand ("Pl. Mot."), Docket Entry No. 9.) BOEM opposes the motion. (BOEM Opp'n to Pl. Mot. ("BOEM Opp'n"), Docket Entry No. 16.) The State Defendants take no position on the motion. (See State Defs. Resp. to Pl. Mot. ("State Defs. Resp."), Docket Entry No. 15.) On August 5, 2019, the Court referred the motion to Magistrate Judge Lois Bloom for a report and recommendation. (Order dated Aug. 5, 2019.) By report and recommendation dated October 4, 2019, Judge Bloom recommended that the Court deny the motion (the "R&R"). (R&R, Docket Entry No. 43.) Walters objected to the R&R, and BOEM responded. (Pl. Obj. to R&R ("Pl. Obj."), Docket Entry No. 44; BOEM Opp'n to Pl. Obj. ("BOEM Opp'n to Pl. Obj."), Docket Entry No. 48.)

For the reasons set forth below, the Court adopts the R&R and denies the motion to remand.

I. Background

On June 3, 2019, Plaintiffs commenced an action in the New York Supreme Court, Nassau County, against various state agencies and officials, as well as BOEM. (See generally Compl.) Plaintiffs' claims arise in connection with the construction of an Energy Education Center in Jones Beach State Park. (Id. ¶¶ 1-3.) Plaintiffs assert claims under various federal laws — specifically, the Land and Water Conservation Act, the Coastal Barrier Resources Act, the Coastal Zone Management Act, the National Environmental Policy Act ("NEPA"), and the National Historical Preservation Act (the "NHPA"). (Id. ¶¶ 19-47, 194-235, 262-351, 380-431.) In addition, Plaintiffs assert various state law claims, including violations of the State Environmental Quality Review Act, the Tidal Wetlands Act, and the State Historical Preservation Act, as well as state common law claims for breach of public land trust and parkland alienation and public nuisance. (Id. ¶¶ 48-193, 236-61, 352-415, 432-75.) As to BOEM, the only federal defendant named in the Complaint, Plaintiffs allege violations of NEPA and the NHPA. (Id. ¶¶ 282-97, 298-351, 416-31.)

On June 27, 2019, BOEM filed a Notice of Removal of the action to this Court, asserting that the action could be removed to federal court pursuant to 28 U.S.C. §§ 1441(a) and 1442(a)(1). (Notice of Removal ¶ 8.) In support, BOEM alleged that it "is an agency within the United States Department of the Interior ('DOI'), a federal agency of the United States of America," and that "[b]ecause Plaintiffs seek declaratory and injunctive relief as a result of alleged 'acts' of the DOI and/or an 'officer . . . of the United States,' this action may be removed pursuant to [section 1442(a)(1)]." (Id. ¶¶ 5-6.) By letter dated July 3, 2019 (the "July 3, 2019 Letter"), Walters opposed removal, and noted, inter alia, that BOEM had incorrectly alleged that Plaintiffs asserted claims pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C.§§ 1346(b)(1), 2671-80. (July 3, 2019 Letter 3, Docket Entry No. 5; Notice of Removal ¶ 5.)²

On July 10, 2019, BOEM filed an Amended Notice of Removal, acknowledging Walters' "letter . . . objecting to the removal, in part, because the removal notice cited an inapplicable statutory basis for removal." (Am. Notice of Removal ¶ 10, Docket Entry No. 7.) BOEM asserted that "notwithstanding the ministerial error [in paragraph five of the initial Notice of Removal], removal . . . is [proper] because this Court has original jurisdiction over actions brought, inter alia, against the United States as a defendant and mandamus actions against the United States and its agencies," and thus "[p]ursuant to 28 U.S.C. § 1441(a), this action may be removed" to federal court. (Id. ¶¶ 11-12.) In a footnote, BOEM noted that section 1441(a) "was cited as a basis for removal in the . . . initial notice of removal." (Id. ¶ 12 n.1.) Unlike the initial Notice of Removal, the Amended Notice of Removal did not explicitly invoke section 1442(a)(1). (See generally id.) On July 11, 2019, Walters filed another letter opposing removal, which Judge Bloom later construed as a motion to remand. (See Pl. Mot.; Order dated July 23, 2019, Docket Entry No. 12.)

By Order dated February 14, 2020 (the "February 2020 Order"), the Court noted that "the Amended Notice of Removal did not invoke section 1442(a)(1) as a grounds for removal, and [that] section 1441(a) is not a proper basis for removal where the other defendants did not consent to removal." (Feb. 2020 Order.) The Court directed BOEM to provide supplemental briefing as to whether the Court could consider the original Notice of Removal in deciding the motion to remand, or was limited to the basis for removal raised in the Amended Notice of Removal. (Id.) By letter dated February 21, 2020, in response to the February 2020 Order,BOEM argued that while the Court could consider the original Notice of Removal, the Amended Notice of Removal on its own "sets forth a sufficient basis for removal under section 1442(a)(1)." (BOEM Suppl. Br. ("Suppl. Br.") 1, Docket Entry No. 49.)

II. Report and recommendation

Judge Bloom recommended that the Court deny the motion to remand. (R&R 1.) Judge Bloom concluded that removal was proper under 28 U.S.C. § 1442(a)(1), (id. at 3), noting that a "case removed under this statute falls within the federal court's jurisdiction as long as 'the removing defendant (1) is a federal agency or officer, or acted under the direction of one; (2) has a colorable federal defense; and (3) can establish a causal connection between the conduct in question and the federal directive," (id. at 4 (quoting Donohue v. CBS Corp., No. 17-CV-7232, 2017 WL 5713222, at *2 (S.D.N.Y. Nov. 27, 2017))). Judge Bloom reasoned that because Plaintiffs "plead claims against a federal agency under a number of federal laws," and because Plaintiffs' "claims for declaratory and injunctive relief implicate BOEM's official authority," the requirements of section 1442(a)(1) are satisfied. (R&R 4.)

Judge Bloom rejected Walters' argument that section 1442(a)(1) does not apply here because it covers only suits relating to alleged conduct performed "under color of such office," noting that "[c]ourts have questioned how 'a federal agency — . . . as opposed to a federal official — can act in any way but 'under color' or 'officially.'" (Id. at 4 (alterations in original) (quoting Moreland v. Van Buren GMC, 93 F. Supp. 2d 346, 352 (E.D.N.Y. July 23, 1999)).) After noting the Moreland court's observation of the "'dearth of authority' regarding removal by a federal agency," (id. at 4 n.5 (quoting Moreland, 93 F. Supp. at 352)), Judge Bloom discussed the Sixth Circuit's decision, several years after Moreland, "analyz[ing] section 1442(a)(1) and its legislative history and [holding] that a federal agency can always remove under section1442(a)(1) because the colorable defense requirement and the 'act under color of such office' appl[y] only to federal officers as opposed to the United States or Federal Agencies" (id. at 4-5 (citing City of Cookeville v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 389-91 (6th Cir. 20017))). Judge Bloom further noted that while the Second Circuit has not addressed the "act under color of such office" language in section 1442(a)(1), other districts have followed the Sixth Circuit holding in City of Cookeville. (Id. at 5 & n.6 (first citing Jax Leasing, LLC v. Xiulu Ruan, 359 F. Supp. 3d 1129 (S.D. Ala. 2019); and then citing Cox v. Hegvet, No. 08-CV-415, 2009 WL 1407009, at *4 (D. Idaho May 19, 2009)).)

III. Discussion

a. Standards of review

i. Report and recommendation

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. Id.; see also United States...