United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
following matter is before the court on plaintiff United
States of America's (“the government”) motion
to dismiss defendants' counterclaim, ECF No. 9. For the
reasons set forth below, the court grants the motion.
case arises out of alleged violations of the Clean Water Act
(“CWA”) by defendants. Defendant Paul Mashni
(“Mashni”) owns the corporate entity defendants.
The complaint alleges that defendants own two parcels of
property, the Legareville site and the Edenborough site, that
contain and are adjacent to tributaries, wetlands, and rivers
that constitute “waters of the United States, ”
as defined by the CWA. The government alleges that defendants
operated land-clearing, filling, grading, and other
mechanized earthmoving construction equipment at the
Legareville and Edenborough sites without the required
permit, resulting in the discharge of pollutants into the
“waters of the United States” and therefore
violating the CWA.
government filed its complaint on August 17, 2018, asking the
court to enjoin the defendants from further discharge of
pollutants in violation of the CWA, compel defendants to
restore the impacted waters and mitigate any damage, and
assess and direct defendants to pay civil penalties for the
violation. Defendants answered the complaint and filed a
counterclaim seeking a declaration that the Legareville and
Edenborough sites “do not involve directly or
indirectly waters of the United States” and that the
sites are exempt from any CWA permitting requirements
pursuant to the CWA's agricultural exemption.
Counterclaim ¶ 2. Defendants also seek an injunction
preventing the government form exercising jurisdiction over
the Legareville and Edenborough sites. The government filed a
motion to dismiss the counterclaim on November 26, 2018. ECF
No. 9. On December 28, 2018, defendants responded and also
sought leave to file an amended answer. ECF No. 14. The
government replied on February 7, 2019. ECF No. 17.
Defendants then wrote a letter that essentially constitutes a
surreply on February 8, 2019. ECF No. 18. Defendants wrote
another letter on March 8, 2019 asking the court to stay the
case pending resolution of a proposed rule that will clarify
the definition of “waters of the United States, ”
ECF No. 20, to which the government did not consent.
12(b)(6) motion for failure to state a claim upon which
relief can be granted “challenges the legal sufficiency
of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see
also Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (“A motion to dismiss under Rule
12(b)(6) . . . does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.”). To be legally sufficient, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion should not be
granted unless it appears certain that the plaintiff can
prove no set of facts that would support his claim and would
entitle him to relief. Mylan Labs., Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule
12(b)(6) motion, the court should accept all well-pleaded
allegations as true and should view the complaint in a light
most favorable to the plaintiff. Ostrzenski v.
Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan
Labs., Inc., 7 F.3d at 1134. “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
previously brought a case against the government before this
court in June 2018, Finish Line Foundation II Inc. v.
U.S. Army Corps of Engineers, No. 2:18-cv- 01727-DCN, in
which defendants sought the same relief they currently seek
in their counterclaim. There, the government sought to dismiss
the complaint on the same grounds as it seeks to dismiss the
counterclaim here. The court held a hearing on the motion on
October 18, 2019 and dismissed the case without prejudice
with the understanding among the parties that defendants
could bring their declaratory judgment action as a
counterclaim in this enforcement action.
current action, the government argues that defendants'
counterclaim should be dismissed because the counterclaim is
barred by sovereign immunity. Defendants brought their
counterclaim pursuant to 28 U.S.C. § 1331, 28 U.S.C.
§ 2201-02 (the Declaratory Judgment Act), and 5 U.S.C.
§ 702 (the Administrative Procedure Act or
“APA”). The government explains that the only
statute that could provide a waiver of sovereign immunity is
the APA, and the APA cannot be invoked here because there was
no agency action that could be challenged under the APA.
well established that as a sovereign, the United States is
immune from suit. United States v. Testan, 424 U.S.
392, 398 (1976). As such, the federal government may not be
sued unless Congress waives its immunity. United States
v. Mitchell, 463 U.S. 206, 212 (1983); Testan,
424 U.S. at 399. “[S]ection 1331 ‘is not a
general waiver of sovereign immunity. It merely establishes a
subject matter that is within the competence of federal
courts to entertain.'” Randall v. United
States, 95 F.3d 339, 345 (4th Cir. 1996) (citations
omitted). Similarly, the Declaratory Judgment Act, 28 U.S.C.
§§ 2201- 02, does not waive sovereign immunity.
Friends of Dereef Park v. Nat'l Park Serv., 2015
WL 12807800, at *9 (D.S.C. May 27, 2015); Stogsdill v.
Sebelius, 2013 WL 521483, at *4 (D.S.C. Feb. 11, 2013)
(citing Balistrieri v. United States, 303 F.2d 617,
619 (7th Cir. 1962)). Therefore, the only statute under which
the government's sovereign immunity could be waived here
is through the APA.
provides a limited waiver of sovereign immunity when a person
suffers “legal wrong because of agency action, or [is]
adversely affected or aggrieved by agency action within the
meaning of a relevant statute.” 5 U.S.C. § 702. As
a result, the APA permits judicial review of “[a]gency
action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court.”
Id. § 704. “‘[A]gency action'
includes the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial
thereof, or failure to act.” Id. §
551(13). The definition “focuses on an agency's
determination of rights and obligations, . . . whether by
rule, order, license, sanction, relief, or similar
action.” Village of Bald Head Island v. U.S. Army
Corps of Engineers, 714 F.3d 186, 193 (4th Cir. 2013).
Therefore, the government's sovereign immunity is waived
if defendants challenge a final agency action. The
counterclaim does not explicitly allege an agency action, but
the government interprets the following to be defendants'
allegation of an agency action: “[b]y bringing its
Complaint, Plaintiff has The Corps has [sic] made a final
determination that Defendants' property contains
jurisdictional waters which gives rise to ‘direct and
appreciable legal consequences.'” Counterclaim
¶ 15. In other words, the agency action is the
government's filing of the instant enforcement action.
The government argues that the filing of this enforcement
action does not fall within the APA's definition of a
final agency action, and even assuming that it did, the APA
does not apply to agency litigation decisions because
litigation decisions are committed to agency discretion by
based on defendants' response to the motion to dismiss,
the court need not determine whether the APA can be invoked
here to waive the government's sovereign immunity.
Defendants respond by explaining that they are not seeking a
review of the decision to file the instant action, which
would constitute the APA claim, but instead seek a
declaratory judgment that they have not violated the
ECF No. 14 at 1. However, the court cannot grant this relief
against the government, because the Declaratory Judgment Act
does not waive the government's sovereign immunity.
See Friends of Dereef Park, 2015 WL 12807800, at *9.
also explain that “in the interests of judicial
efficiency, [they] do not oppose [the government]'s
motion to dismiss, so long as it is without prejudice in
order to permit the filing of the attached proposed Amended
Answer and Affirmative Defenses.” ECF No. 14 at 2.
However, in the proposed amended answer, defendants appear to
have simply renamed their counterclaim as an affirmative
defense, as all of the content in the proposed affirmative
defense section appears to be identical to the content of the
counterclaim. Moreover, defendants cannot amend their answer
to change their counterclaim to an affirmative defense,
because the content of the counterclaim simply does not fall
within the definition of an affirmative defense. As the
government points out, “[a]n affirmative defense is the
‘defendant's assertion raising new facts and
arguments that, if true, will defeat the plaintiff's or
prosecution's claim, even if allallegations
in the complaint are true.” Emergency One,
Inc. v. Am. Fire Eagle Engine Co., 332 F.3d 264, 271
(4th Cir. 2003) ...