United States v. City of Detroit

25 F. App'x 384

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 11, 2002
• Docket: No. 01-1277
• Status: Published

Opinions

OPINION

NORRIS, Circuit Judge.

The district court in this case issued an order under the All Writs Act, 28 U.S.C. § 1651(a), directing the United States Army Corps of Engineers (“Corps”) to accept dredged material in order to prevent the frustration of a consent judgment designed to address water pollution problems in and around Detroit. For the reasons that follow, we vacate the order of the district court.

I.

In 1977, the United States brought suit against the City of Detroit, the Detroit Water and Sewerage Department (hereinafter the city and department will be referred to jointly as “Detroit”), and the State of Michigan, alleging that the Detroit wastewater treatment system was operating in violation of the Clean Water Act, 33 U.S.C. §§ 1251-1387, and its National Pollutant Discharge Elimination System (“NPDES”) permit. That year, the parties signed a consent judgment setting a schedule to bring the treatment plant into compliance. Detroit’s failure to comply led to a party-negotiated amended consent judgment in 1981 which contained a revised compliance schedule.

The State revised the NPDES permit in July 1997, and the city fell out of compliance. In 1998, the State issued a notice of violation to Detroit, which then entered into negotiations for a proposed administrative consent order. In August 2000, Detroit and the State negotiated a Second Amended Consent Judgment, which was approved by the district court, to bring Detroit into compliance.¹ This is the order at issue in the instant case. Among other things, the order required Detroit to dredge and dispose of 146,000 cubic yards of sediment from Conner Creek, a channel connected to the Detroit River. Discharges from Detroit’s sewage treatment plant had contaminated the creek. Under the agreement, this dredging was to be completed “as soon as possible,” and definitely before the completion of a Combined Sewer Overflow basin that Detroit was building in the vicinity. The sediment was to be disposed of “in accordance with state and federal requirements.” The United States Environmental Protection Agency (“EPA”) refused to participate in the negotiation of the agreement, explaining that it had not been part of the administrative proceedings.

Detroit had been planning to dredge Conner Creek before the project was added as a requirement in the consent judgment. In 1998, it had asked the Corps if it could dispose of the sediment at the Confined Disposal Facility (“CDF”) at Pointe Mouillee, which is a wetlands area on the western shore of Lake Erie. Pointe Mouillee, operated by the Corps on bottomland owned by Michigan, includes a state game area and a 3.5-mile dike built to contain dredged material from the Detroit and Rouge Rivers. The Confined Disposal Facility, which has a capacity of 18,600,000 cubic yards, was constructed in 1981 under the authority of a statute on soil disposal facilities, 33 U.S.C. § 1293a.

The Corps at this point refused to accept the Conner Creek sediment, citing the elevated concentrations of lead and cadmium in the material. Detroit next explored the idea of dewatering the dredged sediment at the edge of the creek and then transporting the sediment to a landfill. Vigorous community opposition to the prospect of a malodorous dewatering along the creek led Detroit to table this plan. Detroit then returned to the Corps and suggested putting the sediment in a containment cell at the Pointe Mouillee facility; the cell would be covered with clean material to prevent contamination of the environment. The Corps expressed concern over the level of contaminants but agreed to work with Detroit and Michigan to find a solution. Negotiations ensued. The Corps requested and received Michigan’s approval for the use of Pointe Mouillee for the sediment. The Corps then required Michigan to obtain the approval of the United States EPA and the United States Fish and Wildlife Service and to agree to hold the federal government harmless from liability arising out of the Conner Creek disposal. The Corps also insisted upon an Environmental Assessment to determine whether the disposal would comply with National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4332 et. seq., requirements. The Corps also directed Detroit to obtain a dredging permit, a permit already required by the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403. Michigan responded to the Corps’ demands by refusing to obtain the concurrence of either EPA or the Fish and Wildlife Service on the ground that these approvals would take too much time.

Combined Sewer Overflow Basin

In the meantime, Detroit agreed to undertake another project that became linked to the dredging — the construction of a thirty-million gallon settling basin at Conner Creek to contain the combined sewer overflow (“CSC”) from industrial and sanitary sewage and stormwater runoff. The basin was required by Detroit’s NPDES permit for its sewage treatment plan. Under the state-issued permit. Detroit was to begin construction of the basin by January 1, 2001, and to complete it by January 1, 2005. The high cost of the project prompted Detroit to apply to the State Revolving Loan Fund, which required a project description and environmental studies. When Detroit presented its basin project description, the State required that Detroit include in the proposal its plans for the Conner Creek dredging (even though the dredging is not being funded by the state revolving fund, and Detroit maintained that the two projects were separate). In other words, Detroit could not get funding for the basin unless it had secured a place to put its Conner Creek sludge. The city claimed that, if it did the basin project without state funding, there would be an additional cost to ratepayers of $40,000,000. Thus the time pressure invoked by the State and Detroit in the instant motion to compel the Corps’ acceptance of the sediment stems from the state-issued NPDES permit requiring Detroit to commence building the basin by January 1, 2001.²

District Court Order

On October 12, 2000, Michigan and Detroit filed a motion seeking an order to show cause why the Corps should not be ordered to accept the Conner Creek sediment. The district court concluded that the Corps was frustrating the August 2000 consent judgment, and it issued an order that “[t]he ACE [Army Corps of Engineers] accept dredged materials from Conner Creek for disposal at the Pointe Mouillee Confined Disposal FacEty.” United States v. Michigan, 122 F.Supp.2d 785, 793 (E.D.Mich.2000). The court contmued by rejecting the Corps’ conditions on the acceptance of the sediment:

I find that, pursuant to the Agreement Between the Urated States of America and the State of Michigan Actrng Through the Michigan State Department of Natural Resources for Local Cooperation at Detroit and Rouge Rivers, Michigan, dated May 10, 1974, the ACE has obtained from the State of Michigan the statutorily required liabEty protection language to which it is entitled under Section 123 of the River and Harbor Act of 1970, 33 U.S.C. § 1293a, and I ORDER that no further liabEty protection language from the State of Michigan is required or authorized by law.

Smce I find that the proposed disposal at the Pomte MouEee CDF [Confined Disposal FacEty] of dredged materials from Conner Creek does not constitute a new use of the facEty, I ORDER that it is not necessary that the ACE conduct a review of such disposal under the National Environmental Policy Act, or have developed a new EIS [Environmental Impact Statement] or EA [Environmental Assessment] by NEPA.

Id. at 793-94 (paragraph numbers omitted). The “new use” issue related to the Corps’ assertion that the CDF had been used previously for “navigational dredging” and the Conner Creek sludge was “environmental dredging,” a new use prompting a need for supplemental environmental studies. The district court denied a Corps motion for reconsideration, and the Corps appeals.

II.

A. Standard of Review

“A district court’s decision to grant or deny a permanent injunction is reviewed under several distmct standards. Factual findings are reviewed under the clearly erroneous standard, legal conclusions are reviewed de novo, and the scope of injunctive relief is reviewed for an abuse of discretion.” South Cent. Power Co. v. Int’l Bhd. Elec. Workers, 186 F.3d 733, 737 (6th Cir.1999) (citation omitted); see also Assoc. for Retarded Citizens of Conn., Inc. v. Thorne, 30 F.3d 367, 369 (2d Cir.1994) (reviewing an All Writs Act jomder order for abuse of discretion). We are presented with the questions of whether the Corps is protected by sovereign immunity and whether the All Writs Act applies to non-parties, questions of law that we review de novo.

B. Sovereign Immunity

The parties dispute the applicabEty of the waiver of sovereign immunity codified in the Administrative Procedures Act (“APA”), 5 U.S.C. § 702. Sovereign immunity renders the United States immune from suit except when it has consented to be sued. See Hercules, Inc. v. United States, 516 U.S. 417, 422, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). The APA, which waives the government’s immunity for nonmonetary claims, provides, in relevant part:

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 nor relief therein be denied on the ground that it is against the United States ... Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance.

5 U.S.C. § 702.³ .

Detroit and Michigan claim that the APA’s waiver of sovereign immunity is a general waiver applying to all suits for declaratory, injunctive, or mandamus relief, and is not limited to suits brought under the APA. The Corps contends instead that such waiver applies only when the court reviews a complaint filed under the APA. The Corps identifies two problems: 1) Detroit and Michigan did not file an APA complaint (instead filing a motion for an order to show cause); and 2) the district court did not review the agency inaction under the APA. Instead it relied on the All Writs Act, and it did not make a finding of wrongdoing by the Corps, which would have been necessary for an APA claim. See 5 U.S.C. § 706. The Corps argues that its understanding of the waiver provision is supported by statutory structure since the waiver was inserted into the APA rather than as an independent provision of the United States Code. In addition, the Corps invokes the principle that “a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citation omitted).

This circuit has not adopted the Corps’ restrictive view of the § 702 waiver of sovereign immunity and has applied the waiver in cases brought under statutes other than the APA. See A.E. Finley & Assocs., Inc. v. United States, 898 F.2d 1165, 1167 (6th Cir.1990) (“the Administrative Procedure Act, specifically 5 U.S.C. § 702, waives sovereign immunity under § 1331”; case arising under the Contract Disputes Act); Newsom v. Vanderbilt Univ., 653 F.2d 1100, 1107 (6th Cir.1981) (applying the APA waiver to a claim brought under the Hill-Burton Act on free hospital care); see also Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996) (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not”); United States v. Mitchell, 463 U.S. 206, 227 n. 32, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (stating in dicta that with the APA “Congress enacted a general consent to such suits [for declaratory, injunctive or mandamus relief].”). The filing of a motion rather than a complaint does not automatically preclude a waiver of sovereign immunity. Since the motion in the instant case did not seek monetary damages, it provides a proper basis for the application of the APA waiver.

C. All Writs Act Authority Over the Corps

The parties dispute whether the court can issue an order against the Corps, a nonparty, under the All Writs Act. The All Writs Act provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).

The Corps contends that the All Writs Act may be used only to enforce “legal obligations imposed by statute or some other independent source of law.” Here, it argues, there are no independent legal obligations, and the court cannot enforce the consent judgment against it because it was not a party to the judgment. Detroit and Michigan defend the court’s authority with alternative arguments. First, they suggest two statutes as a basis for compelling the Corps to act: a requirement under the spoil disposal facility law that the government allow permittees to use a spoil disposal facility (e.g., the CDF at Pointe Mouillee), 33 U.S.C. § 1293a(g), and the APA’s requirements on timely agency action. 5 U.S.C. § 706.⁴ In the alternative, they argue that there was authority for the All Writs Act order because an obligation binding the Corps is unnecessary under United States v. New York Telephone, 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), which held that a court can issue an order against a party frustrating the implementation of a court order. Id. at 174, 98 S.Ct. 364. The district court in the instant case did not rely on independent obligations in issuing its All Writs Act order but instead premised its authority on the enforcement of the consent judgment and the precedent of New York Telephone. For this reason, Detroit and Michigan’s argument based on the statutory obligations is unavailing. We must decide if the consent judgment is sufficient to ground the court’s order against the Corps under New York Telephone.

In New York Telephone, a district court had determined that probable cause existed to justify the use of a pen register (a device to record telephone numbers that are dialed) in a criminal investigation, and it had ordered the local telephone company to assist the FBI. The telephone company refused to cooperate fully because of its concern that a pen register qualified as a wiretap, which would trigger stringent procedural requirements that were not followed. Id. at 163, 98 S.Ct. 364. The court, ruling that pen registers were not wiretaps, then issued an All Writs Act order directing the phone company to comply with the previously issued order. The Supreme Court affirmed:

The power conferred by the [All Writs] Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.

Id. at 174, 98 S.Ct. 364 (citations omitted). The Court reasoned that there was no way the FBI could have accomplished its court-authorized surveillance without the company’s cooperation; the phone company (a public utility with a “duty to serve the public”) was not far removed from the controversy because its facilities were being used in a crime; and the assistance required was not “in any way burdensome.” Id. at 174-75, 98 S.Ct. 364.

According to the Corps, New York Telephone does not govern in the instant case because the enforcement of a consent judgment is different from the enforcement of the court order in New York Telephone. The Corps cites the Court of Appeals for the Second Circuit, which has explained why a consent judgment is not a legal obligation authorizing the court to impose or enforce obligations on nonparties:

where a district court enters a privately-negotiated consent decree, it does not determine that the obligations assumed by the parties are required by law. Indeed, consent decrees often impose rights and obligations greater than those required by law. Because the terms of the consent decree were voluntarily assumed rather than legally imposed, there is no basis for extending the negotiated outcome to a nonparty. While a district court has authority to enforce a judicially-approved consent decree against the parties to it, a district court that enforces the decree against a non-party acts beyond its jurisdiction and thus beyond the scope of the All Writs Act.

Thome, 30 F.3d at 370 (citation omitted).

In the instant case, the consent judgment was negotiated by the parties, the obligations were not determined in an adjudication on the merits, and the United States was not a party to the judgment. The urgency of the situation stems from the deadlines negotiated by Detroit and Michigan, and it is not clear to us that alternatives to immediate Corps acceptance were unavailable. We agree with the Corps that New York Telephone does not control this case, and the district court lacked authority to enforce a consent agreement against a nonparty.

III.

For the foregoing reasons, the order of the district court is vacated.

1 . Wayne, Oakland, and Macomb Counties were also parties to the consent judgment.

2 . The record before us is unclear on whether basin construction has begun.

3 . The APA waiver of sovereign immunity does not apply to cases in which "statutes preclude judicial review,” or where a matter has been committed to agency discretion by law. 5 U.S.C. § 701(a)(l)-(2). Judicial review is available for "[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704, and applies "[ejxcept to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law.” 5 U.S.C. § 703.

4 . The statute governing the construction of spoil disposal facilities provides that "[a]ny spoil disposal facilities constructed under the provisions of this section shall be made available to Federal licensees or permittees upon payment of an appropriate charge for such use.” 33 U.S.C. § 1293a(g). The APA provides that a "reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed." See 5 U.S.C. § 706(1).