Louisiana v. United States

• Decision Date: 21 January 2020
• Docket Number: No. 19-30213,19-30213
• Citation: 948 F.3d 317
• Parties: State of LOUISIANA, Plaintiff - Appellant v. UNITED STATES of America, Defendant - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

948 F.3d 317

State of LOUISIANA, Plaintiff - Appellant

v.UNITED STATES of America, Defendant - Appellee

No. 19-30213

United States Court of Appeals, Fifth Circuit.

FILED January 21, 2020

Robert E. Couhig, Jr., Jason Andrew Cavignac, Couhig Partners, L.L.C., New Orleans, LA, for Plaintiff - Appellant.

Rachel Heron, Daniel Halainen, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, for Defendant - Appellee.

Before DAVIS, SMITH, and COSTA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

The State of Louisiana sued the United States for injunctive relief alleging that the United States Army Corps of Engineers ("Corps") has failed to maintain the Gulf Intracoastal Waterway in compliance with the River and Harbor Improvements Act. The State asserts that the United States has waived its sovereign immunity for such a claim under the Administrative Procedure Act ("APA"), specifically 5 U.S.C. § 702, because the State has been "adversely affected or aggrieved by agency action within the meaning of a relevant statute." We conclude that the State fails to satisfy the requirements for the waiver of sovereign immunity under § 702 in that it does not challenge "agency action" and the State’s alleged injury does not fall within the "zone of interests" of the River and Harbor Improvements Act. We additionally hold that the State’s "failure to act" claim is not subject to judicial review under the APA because the Corps is not legally required to preserve and/or maintain the Gulf Intracoastal Waterway at a certain width. Therefore, we AFFIRM the district court’s judgment dismissing the State’s complaint under Rule 12(b)(1) for lack of subject matter jurisdiction.

I. Background

In 1925 the United States Congress enacted the River and Harbor Improvements Act ("Act"), which authorized the construction of the Gulf Intracoastal Waterway ("Waterway"), 100 feet in width, from New Orleans to Galveston.¹ In 1942 Congress expanded the authorized width of the Waterway to 125 feet.² The United States, in furtherance of the Act’s mandate, entered into a servitude agreement with Louisiana landowners, obtaining a servitude limited to 300 feet in width affecting property in Vermilion Parish. The State later acquired property known as White Lake Wetlands Conservation Area ("White Lake Property") in Vermilion Parish. The United States’ servitude runs across a portion of the White Lake Property.

In its complaint,³ the State alleges that the Corps has failed to confine the Waterway to the parcel of ground upon which it holds its servitude and that the Waterway now extends onto land owned by the State. The State asserts that jurisdiction is proper under § 702 of the APA because the loss of its property "aris[es] from inaction on the part of the [Corps]" and a "continuing failure to act to rectify the physical encroachment in violation of Defendant’s legal duties owed to Plaintiff." The State also asserts that jurisdiction is proper under § 702 because it "is not seeking monetary damages, rather injunctive relief." The State requests an injunction requiring abatement and removal of the encroachment, as well as restoration of the property to its prior condition.

In response to the State’s complaint, the United States filed a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) based on its sovereign immunity. The United States asserted that in the absence of a waiver of its sovereign immunity, the district court lacked subject matter jurisdiction over a claim against it. The United States argued that although the APA provides a limited waiver of its sovereign immunity, express exceptions to the waiver found in § 704 of the APA deprived the district court of subject matter jurisdiction. Specifically, the United States contended that the State has an adequate remedy for an alleged breach of the servitude agreement under the Tucker Act in the Court of Federal Claims. The United States further argued that there has been no "final" agency action by the Corps.

The State responded by asserting that § 702 of the APA waives the United States’ sovereign immunity where a person is "adversely affected or aggrieved by agency action within the meaning of a relevant statute" and seeks nonmonetary relief. The State argued that under that provision of the § 702 waiver, there is no requirement of "finality." It further contended that its claim arises from a "relevant statute," the River and Harbor Improvements Act ("Act") and its amendments, which allocated funds for and authorized the construction and maintenance of the Waterway. The State further contended that the Corps has failed to act on its responsibility to maintain the Waterway within the agreed-to and authorized parameters.

In reply, the United States argued that neither the Act nor its amendments provide the State with any statutory cause of action. The United States additionally asserted that neither the Act nor its amendments impose any affirmative obligation on the Corps with regard to the width of the Waterway. Furthermore, the United States contended that the State’s interest did not fall within the "zone of interests" of the Act or its amendments. The United States finally maintained that "failure to act" claims implicate § 706(1) of the APA which provides that the "reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed." The United States asserted that because there is no statute or regulation requiring the Corps to maintain the Waterway as requested by the State, then it cannot be compelled to do so, and its sovereign immunity has not been waived under the APA.

The magistrate judge issued a report recommending that the United States’ motion be granted. Over the State’s objection, the district court adopted the report and recommendation and dismissed the State’s complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The State timely appealed.

II. DISCUSSION

This court reviews a district court’s Rule 12(b)(1) dismissal for lack of subject matter jurisdiction de novo.⁴ "Whether the United States is entitled to sovereign immunity is a question of law which this court reviews de novo."⁵ The State contends that the United States has waived its sovereign immunity in this matter under § 702 of the APA. Section 702 of the APA "waives sovereign immunity for actions against federal government agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to judicial review."⁶ Section 702, entitled "Right of review," provides:

A person [1] suffering legal wrong because of agency action, or [2] adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed ... on the ground that it is against the United States ....⁷

As explained by the Supreme Court in Lujan v. National Wildlife Federation ,⁸ § 702 of the APA contains two separate requirements. First, the person claiming a right to sue must identify some "agency action."⁹ As defined by § 551(13) of the APA, "agency action" includes "an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."¹⁰ Second, the party seeking review under § 702 must show that he has suffered legal wrong because of the challenged agency action or that he has been "adversely affected or aggrieved" by the challenged agency action "within the meaning of a relevant statute."¹¹ The Lujan Court explained that "to be ‘adversely affected or aggrieved ... within the meaning’ of a statute, the plaintiff must establish that the injury he complains of ... falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint."¹²

As to the first requirement, the State fails to point to any identifiable "agency action" within the meaning of § 702. The State contends that the Corps "has failed to maintain, preserve, and repair the Waterway so as to not infringe on Louisiana’s property rights." As noted by one of our sister circuits, however, the term "action" as used in the APA "is a term of art that does not include all conduct such as, for example, constructing a building, operating a program, or performing a contract."¹³ Moreover, the agency action being challenged must be "circumscribed [and] discrete."¹⁴ As this court has noted, in interpreting the APA, Lujan "announced a prohibition on programmatic challenges—challenges that seek wholesale improvement of an agency’s programs by court decree, rather than through Congress or the agency itself where such changes are normally made."¹⁵

The State’s allegations focus on decades of inaction by the Corps in failing to keep the Waterway from expanding beyond the width authorized by Congress in 1942. The State’s "complaint fails to point to any identifiable action or event."¹⁶ Consequently, the State has not satisfied the first requirement under § 702 of identifying specific agency action and, thus, fails to establish the United States has waived its sovereign immunity in this matter.¹⁷

We also conclude that the State has not established that it meets the second requirement under § 702 for a waiver of sovereign immunity, i.e., that it has been adversely affected and aggrieved within the meaning of a relevant statute. As stated by the Lujan Court, to satisfy this requirement "the plaintiff must establish that the injury he complains of ... falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint."¹⁸ Louisiana asserts that it has been adversely affected and aggrieved within the meaning of a "r...