A. Plaintiff's Complaint and Requests for Relief
Defendant's primary contention is that "the relief sought [by ACMUA] is in actuality an order compelling a payment of money [by the United States] in excess of $3,573,750.00." Defendants' Brief at 7. Thus, defendants contend that ACMUA's claim falls squarely within the exclusive Tucker Act jurisdiction of the Claims Court. At first blush, this contention is not unsupportable. See, e.g., United States v. City of Kansas City, Kansas, 761 F.2d 605, 608 (10th Cir. 1985). For the reasons which follow, however, we disagree.
It is, of course, first necessary to scrutinize plaintiff's requests for relief and determine the identity of the real parties in interest. In its complaint, the plaintiff maintains that the EPA should have provided it with the requested grant money as soon as the EPA Board of Assistance Appeals (the Board) reversed the Regional Administrator's ineligibility determination. Plaintiff appears to have taken umbrage when the Administrator sought Board reconsideration, Plaintiff's Complaint para. 16, and was obviously piqued when the Administrator required FY 1985 state certification. Id. at paras. 19-22. In fact, plaintiff maintained that EPA's decisions were not only in bad faith, but "manifested a conduct that is outrageous and is abhorrent to the democratic system of government." Id. at paras. 30-31. Not surprisingly, therefore, the plaintiff requested this Court to "assess punitive damages against those EPA employees who are responsible for not following the requirements of the law and the express directions of the Board." Yet, these employees have never been named as defendants. Thus, without regard to its otherwise dubious merits, this relief could not be granted even assuming arguendo the availability of punitive damage awards, see 33 U.S.C. § 1319(d) and the absence of jurisdictional obstacles.
Plaintiff also seeks injunctive relief. Specifically, the ACMUA requests this Court to order the EPA to provide it with the grant certified in the NJDEP FY 1981 priority list. Additionally, plaintiff seeks an order compelling the EPA "to pay any shortfall in the amount ACMUA needs to purchase" the sewage treatment system at 1985 prices.
The citizen suit provision, discussed more fully below, explicitly empowers a court to order the EPA Administrator to perform nondiscretionary duties and to apply "any appropriate civil remedies under section 1319(d) of [the FWPCA]." 33 U.S.C. § 1365(a). The question of whether a request, like the plaintiff's herein, which seeks to have the Court order the EPA to disburse grant funds, is within the injunctive ambit of § 1365(a) or is a thinly disguised demand for unavailable damages is not easily answered. Although this question is considered at some length below, it is not dispositive. Instead, we shall hold that this Court has jurisdiction, pursuant to § 1365, to order the EPA Administrator to perform a nondiscretionary duty, specifically, to determine whether the appropriate state agency has certified that a grant application is entitled to priority over others on a state's priority list. See 33 U.S.C. § 1284(a)(3).
Plaintiff's remaining claims for relief seek an award of costs and counsel fees as well as whatever other legal and equitable relief this Court deems to be just and proper. The FWPCA specifically authorizes awards of the costs of litigation in appropriate citizen suits. See 33 U.S.C. § 1365(d). Thus, except regarding its merits, this request need not engender particular discussion.
Similarly, we think it is clear that both plaintiff's request for injunctive relief and other "just and proper" equitable relief encompass a permissible request for a declaration regarding the need for current NJDEP certification. See Fed. R. Civ. P. 57. Certainly, we could not order the EPA Administrator to abandon his insistance on FY 1985 state certification without first finding and declaring that the same is not required by the FWPCA. Moreover, the immediacy of their controversy and the adverse interests of the parties warrant this kind of equitable relief. See Middlesex Cty. Sewerage Auth. v. Sea Clammers, 453 U.S. 1, 14-17, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981); Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 85 L. Ed. 826, 61 S. Ct. 510 (1941). Compare J. E. Brenneman v. Schramm, 473 F. Supp. 1316, 1319-20 (E.D. Pa. 1979) (contractor lacked standing to contest EPA Administrator's failure to require a grant recipient to submit cost estimates). This construction of plaintiff's complaint does not complicate our jurisdictional inquiry because the Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202, does not serve as an independent source of subject matter jurisdiction. See Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437, 1438 (S.D. Fla. 1984) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 94 L. Ed. 1194, 70 S. Ct. 876 (1950)).
Although unspecific in this regard, plaintiff's complaint seems clearly to be directed against the Regional Administrator (who is not identified) in his official capacity. Thus, if successful, it would operate against the sovereign and the Tucker Act, discussed below, may be applicable. See, e.g., Hawaii v. Gordon, 373 U.S. 57, 58, 10 L. Ed. 2d 191, 83 S. Ct. 1052 (1941); Portsmouth Redevelopment & Housing Auth. v. Pierce, 706 F.2d 471, 473 (4th Cir. 1983). Contra Williamsport Sanitary Authority v. Train 464 F. Supp. 768, 775 (M.D. Pa. 1979).
Similarly, because the determinations of the Regional Administrator in this context are often final EPA determinations, see supra p. slip op. at 5-6, we shall construe plaintiff's complaint as stating a cause of action against the EPA Administrator thereby rendering the citizen suit provision of the FWPCA applicable. Ultimately, it is the EPA Administrator who is charged with the responsibility of determining whether a state certified project is entitled to funding. 33 U.S.C. § 1284. Thus, we would not dismiss plaintiff's complaint for lack of subject matter jurisdiction merely because it names as defendant the EPA Regional Administrator, instead of the EPA Administrator, without first permitting the appropriate amendment. See Fed. R. Civ. P. 15. Our subsequent disposition makes this amendment unnecessary.
B. Sovereign Immunity, the Tucker Act, and the Jurisdiction of the Claims Court.
As just mentioned, suits against a federal official for acts performed within his official capacity are actions against the sovereign and are prohibited in the absence of Congressional consent. See, e.g., United States v. Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976). Further, because it evinces a waiver of sovereign immunity, the grant of such a right of action must be made with specificity and not by implication. Id.
The Tucker Act, 28 U.S.C. §§ 1346 and 1491,
is a jurisdictional statute that does not itself create any substantive rights against the United States. Instead, it establishes
three conditions which, if satisfied, vest subject matter jurisdiction exclusively in the Claims Court. The action must be against the United States, seek monetary relief in excess of $10,000, and be founded upon the Constitution, federal statute, executive regulation, or government contract.
Portsmouth Redevelopment, 706 F.2d at 473. But cf. Coco Bros., Inc. v. Pierce, 741 F.2d 675 (3d Cir. 1984) (Claims Court's equitable jurisdiction is not exclusive of that of the district courts). Not every claim invoking the Constitution, a federal statute or regulation, however, creates a claim cognizable in the Claims Court.
The noncontractual claims considered under § 1491
can be divided into two somewhat overlapping classes - those in which the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum; and those demands in which money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury . . . [because of] a particular provision of law.