Discovery Park Community Alliance v. City of Seattle

• Court: District Court, W.D. Washington
• Decided: April 29, 2021
• Docket: 2:19-cv-01105
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 ELIZABETH CAMPBELL, CASE NO. C19-1105-JCC 10 Petitioner, ORDER 11 v. 12 CITY OF SEATTLE, et al., 13 Respondents. 14

15 This matter comes before the Court on Respondent the United States Department of the 16 Army’s motion to dismiss (Dkt. No. 60). Having considered the parties’ briefing and the relevant 17 record, the Court GRANTS the motion for the reasons explained herein. 18 The Court previously granted the City of Seattle’s motion to join the Army as a 19 respondent in this action (Dkt. No. 25). At the time, Petitioners1 did not oppose the City’s motion 20 and the Court concluded that (a) joinder was appropriate under Washington’s Land Use Petition 21 Act, Wash. Rev. Code Chapter 36.70C, and (b) doing so would not deprive the Court of subject 22 matter jurisdiction over Petitioners’ claims against the City. (Id. at 2.) Petitioners subsequently 23 filed an Amended Petition (“Petition”), which named the Army as a respondent, although it 24 contained no allegations or legal claims directed at the Army (See generally Dkt. No. 32). The 25 1 Discovery Park Community Alliance was subsequently dismissed from the case for lack 26 of counsel, (Dkt. No. 52), leaving Elizabeth Campbell as the sole petitioner in this matter. 1 Army now moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 2 (Dkt. No. 60.) 3 1. Army’s Rule 12(b)(1) Motion 4 A Rule 12(b)(1) motion tests whether a court has subject matter jurisdiction to hear the 5 claims alleged. Fed. R. Civ. P. 12(b)(1). Once a party presents a Rule 12(b)(1) motion, the party 6 asserting jurisdiction bears the burden of establishing it. Ass’n of Am. Med. Coll. v. United 7 States, 217 F.3d 770, 778–79 (9th Cir. 2000). The Army argues that any potential claims against 8 it are barred by its sovereign immunity and, regardless, the Petition fails to establish Ms. 9 Campbell’s standing to bring claims against the Army. (Dkt. No. 60 at 8–13.) The Court agrees. 10 “The district court lacks jurisdiction in a suit against the federal government unless 11 Congress has consented to be sued.” S. Delta Water Agency v. U.S., Dep’t of Int., Bureau of 12 Reclamation, 767 F.2d 531, 535 (9th Cir. 1985). While a claim brought pursuant to the 13 Administrative Procedure Act (“APA”), 5 U.S.C. § 702, is an example of Congressional consent 14 to sue, see 5 U.S.C. § 704, a colorable APA claim requires a final agency action causing, or 15 likely to cause, injury. See Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 (9th Cir. 16 2005). Ms. Campbell alleges neither a final agency action nor an injury proximately caused by 17 the Army. (See generally Dkt. No. 32.) As a result, she has failed to establish standing and, 18 therefore, the Court lacks subject matter jurisdiction to award her the relief she seeks against the 19 Army. See Nuclear Info. and Resource Serv. v. Nuclear Reg. Comm’n, 457 F.3d 941, 949 (9th 20 Cir. 2006); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). 21 For the foregoing reasons, the Army’s motion to dismiss pursuant to Rule 12(b)(1) (Dkt. 22 No. 60) is GRANTED.2 The Army is DISMISSED without prejudice. Because the infirmities in 23 the Petition may be curable through amendment, see Sonoma Cnty. Ass’n of Retired Emp. v. 24 Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013), Ms. Campbell may amend the Petition, but 25 only to include allegations and legal claims against the Army. Amendment must be done within

26 2 The Court need not consider the Army’s Rule 12(b)(6) motion. 1 fourteen (14) days of this order. An amendment received beyond this date will not be considered. 2 3 DATED this 29th day of April 2021. A 4 5 6 John C. Coughenour 7 UNITED STATES DISTRICT JUDGE

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