Murray Energy Corp. v. McCarthy

• Decision Date: 16 September 2014
• Docket Number: Civil Action No. 5:14-CV-39
• Court: U.S. District Court — Northern District of West Virginia
• Parties: MURRAY ENERGY CORPORATION, MURRAY AMERICAN ENERGY, INC., THE AMERICAN COAL COMPANY, AMERICAN ENERGY CORPORATION, THE HARRISON COUNTY COAL COMPANY, KENAMERICAN RESOURCES, INC., THE MARION COUNTY COAL COMPANY, THE MARSHALL COUNTY COAL COMPANY, THE MONONGALIA COUNTY COAL COMPANY, OHIOAMERICAN ENERGY INC., THE OHIO COUNTY COAL COMPANY, and UTAHAMERICAN ENERGY, INC., Plaintiffs, v. GINA McCARTHY, Administrator, United States Environmental Protection Agency, in her official capacity, Defendant.

MURRAY ENERGY CORPORATION,

MURRAY AMERICAN ENERGY, INC.,

THE AMERICAN COAL COMPANY,

AMERICAN ENERGY CORPORATION,

THE HARRISON COUNTY COAL COMPANY,

KENAMERICAN RESOURCES, INC.,

THE MARION COUNTY COAL COMPANY,

THE MARSHALL COUNTY COAL COMPANY,

THE MONONGALIA COUNTY COAL COMPANY,OHIOAMERICAN ENERGY INC.,THE OHIO COUNTY COAL COMPANY,and UTAHAMERICAN ENERGY, INC., Plaintiffs, v. GINA McCARTHY, Administrator,

United States Environmental Protection Agency,

in her official capacity, Defendant.

Civil Action No. 5:14-CV-39

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling

September 16, 2014

Judge Bailey

ORDER DENYING MOTION

Pending before this Court is Defendant's Motion to Dismiss the Complaint and Motion to Strike Prayer for Injunctive Relief [Doc. 34]. In the Motion, the defendant moves to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and, in the alternative, moves to strike paragraph (c) of the plaintiffs' prayer for relief, requesting injunctive relief, pursuant to Fed. R. Civ. P. 12(f). The Motion has been fully briefed and is ripe for decision.

This action centers around § 321(a) of the Clean Air Act, 42 U.S.C. § 7621(a). This statutory provision provides:

The Administrator shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of [the Clean Air Act] and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.

42 U.S.C. § 7621(a) (brackets added).

In her Motion, the Administrator argues that this Court is without subject matter jurisdiction to hear this case because the plaintiffs have not articulated a sufficient statutory waiver of the Government's sovereign immunity. This, she contends, is because the statute upon which the plaintiffs rely is discretionary and § 321(a) does not contain a date certain for action by the Administrator.

"As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941). All waivers of sovereign immunity must be 'strictly construed . . . in favor of the sovereign.' Lane v. Pena, 518 U.S. 187, 192 (1996). For that reason, it is the plaintiff's burden to show that an unequivocal waiver of sovereign immunity exists and that none of the statute's waiver exceptions apply to his particular claim. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). If the plaintiff fails to meet this burden, then the claim must be dismissed. Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001)." Welch v. UnitedStates, 409 F.3d 646, 650-51 (4th Cir. 2005).

In this case, the plaintiffs assert jurisdiction under § 304 of the Clean Air Act, 42 U.S.C. § 7604, which provides in pertinent part:

Except as provided in subsection (b) of this section [notice requirements], any person may commence a civil action on his own behalf - -

* * * * * *

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator . . .

* * * * * *

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, . . . to order the Administrator to perform such act or duty, as the case may be. . ..

42 U.S.C. § 7604(a).

Accordingly, the "substantive issue in this case is one of statutory construction, specifically whether the [Clean Air Act] imposes a discretionary or non-discretionary duty on the EPA Administrator." Monongahela Power Co. v. Reilly, 980 F.2d 276 (4th Cir. 1993).

There is some confusion as to the appropriate standard to be applied in a case such as this. The Fourth Circuit has indicated that the analysis should be conducted under Rule 12(b)(1):

[W]e observe that rather than granting summary judgment pursuant to Rule56(c), the district court should have dismissed the suit for want of jurisdiction under Rule 12(b)(1) if the United States is not liable for Williams' injury. See Broussard v. United States, 989 F.2d 171, 177 (5th Cir. 1993) (per curiam) (noting that the proper practice is to dismiss for want of jurisdiction for purposes of the FTCA under Rule 12(b)(1), not to grant summary judgment under Rule 56(c)); Shirey v. United States, 582 F.Supp. 1251, 1259 (D. S.C.1984) (explaining that if the court lacks subject matter jurisdiction, the suit must be dismissed). We find distinguishing between the various modes of liability to have procedural ramifications. The plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1), see Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222 (1991), because "[t]he party who sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity," Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984). In ruling on a Rule 12(b)(1) motion, the court may consider exhibits outside the pleadings. See Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Indeed, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id.; see also Richland-Lexington Airport Dist. v. Atlas Properties, 854 F.Supp. 400, 407 (D. S.C. 1994) (cogently explaining the differences between dismissal procedure under Rule 12(b)(1) and summary judgment under Rule 56(c)). We exercise plenary review over issues raisedunder Rule 12(b)(1). See Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 972 (10th Cir. 1994). The differing procedural standards of dismissal under Rule 12(b)(1) and summary judgment under Rule 56(c) are more than academic; dismissal under Rule 12(b)(1) has two consequences: one, the court may consider the evidence beyond the scope of the pleadings to resolve factual disputes concerning jurisdiction; and two, dismissal for jurisdictional defects has no res judicata effect. See 2A James W. Moore, Moore's Federal Practice ¶ 12.07, at 12-49 - 12-50 (2d ed.1994). The district court implicitly recognized these principles in opining that Williams and Meridian can litigate in state court.

Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).

On the other hand, the District of Columbia Circuit has more recently held that the analysis should be conducted under Rule 12(b)(6):

Although we hold that we do not lose jurisdiction over this controversy by reason of mootness, this does not resolve the jurisdictional theory upon which the district court relied in dismissing the case under Rule 12(b)(1) for lack of subject matter jurisdiction. Sierra Club, 724 F.Supp.2d at 42-43. The district court's ruling was based on the proposition that the Administrator's decision was discretionary and therefore not justiciable. Before this court, Sierra Club, which certainly does not concede that the district court should have dismissed the claim at all, argues that the analysis should have been under Rule 12(b)(6) to determine whether the complaintfailed to state a claim upon which relief could be granted rather than under the jurisdictional standards of Rule 12(b)(1). While it does not in the end affect the outcome, we ultimately agree that Rule 12(b)(6) should govern. We hasten to state that we do not fault the district court for basing its dismissal on Rule 12(b)(1) rather than Rule 12(b)(6). The distinction between a claim that is not justiciable because relief cannot be granted upon it and a claim over which the court lacks subject matter jurisdiction is important. But we cannot fault the district court, as this court "ha[s] not always been consistent in maintaining these distinctions." Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir. 2009) (Ginsburg, J., concurring). Indeed, we have provided authority both that discretionary duty claims fall outside our jurisdiction, and that such claims are nonjusticiable under Rule 12(b)(6). In Association of Irritated Residents v. EPA, we held that agency decisions excluded from judicial review by 5 U.S.C. § 701(a)(2) are outside the court's jurisdiction. 494 F.3d 1027, 1030 (D.C. Cir. 2007) ("In this case, subject matter jurisdiction turns on whether the Agreement constitutes a rulemaking subject to APA review, or an enforcement proceeding initiated at the agency's discretion and not reviewable by this court."). Two years later, in Oryszak v. Sullivan, we came to a different conclusion. Without any reference to Association of Irritated Residents, we stated:

Because the APA does not apply to agency action committed to agency discretion by law, a plaintiff who challenges such anaction cannot state a claim under the APA. Therefore, the court has jurisdiction over his case pursuant to § 1331, but will properly grant a motion to dismiss the complaint for failure to state a claim. Oryszak, 576 F.3d at 525.

Sierra Club v. Jackson, 648 F.3d 848, 853-54 (D.C. Cir. 2011).

Inasmuch as this Court is a part of the Fourth Circuit, this Court will apply Rule 12(b)(1).

In determining whether this Court has jurisdiction, the EPA's position is not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Our Children's Earth Found. v. EPA, 527 F.3d 842, 846 (9th Cir. 2008), citing Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1038-39 (D.C. Cir. 2002) ("Nor is an agency's interpretation of a statutory provision defining the jurisdiction of the court entitled to our deference under Chevron.) (In turn citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990)).

In determining whether the statute imposes a non-discretionary duty, this Court is mindful that "the term 'nondiscretionary' has been construed narrowly. See Environmental Defense Fund [...