59 F.4th 180
5th Cir.2023Background
- Addicks and Barker dams/reservoirs (Buffalo Bayou watershed) are Corps flood-control projects; the Corps adopted a 2012 Water Control Manual (WCM) governing reservoir operations.
- Fort Bend County, Fort Bend County Drainage District, and Cinco MUD No. 1 (the County Parties) allege the Corps’ WCM and related policies allowed impoundment of floodwaters on non-federal upstream land (non‑GOL), causing extensive flooding in the 2016 Tax Day Flood and Hurricane Harvey (2017).
- Plaintiffs assert the Corps failed to acquire additional upstream land required by Corps guidance/regulations and failed to revise the WCM after the floods; they sued under the APA seeking injunctive, declaratory, and mandamus relief (no money damages alleged as the primary relief).
- The district court dismissed with prejudice for lack of subject-matter jurisdiction (holding the Court of Federal Claims had exclusive jurisdiction under the Tucker Act / Takings framework) and for failure to state a claim; plaintiffs appealed.
- The Fifth Circuit reversed and remanded: it held the Tucker Act did not provide an adequate alternative remedy to bar APA review, rejected dismissal of the WCM §706(2) challenge (subject to mootness inquiry), and remanded for production of the administrative record and further factual development on whether certain Corps regulations/guidance impose mandatory duties to acquire land.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under APA §702/§704 vs. Tucker Act | APA waives sovereign immunity; plaintiffs seek non‑monetary equitable relief so district court has jurisdiction | Tucker Act / Claims Court provides exclusive/adequate remedy for claims tied to takings; thus district court lacks jurisdiction | Tucker Act did not provide an adequate remedy for plaintiffs’ equitable claims; §702/§704 jurisdictional requirements met and dismissal for lack of jurisdiction was error |
| Takings allegations in complaint | Plaintiffs primarily seek agency-compliance relief, not a Tucker Act damages claim; APA relief is appropriate | Presence of takings theory means Claims Court has exclusive jurisdiction | Plaintiffs cannot rely on the Takings Clause under §706(2)(B); but the existence of a takings theory does not bar APA review of statutory/regulatory claims |
| Challenge to 2012 WCM as arbitrary and capricious (§706(2)(A)) | WCM failed to consider upstream property interests and allowed impounding on non‑GOL; Corps record must be produced for review | Corps contends WCM may be superseded by a 2019 manual (mootness) and defended its rulemaking | Reversed dismissal; if not moot, §706(2) review appropriate and the agency record must be produced for merits review |
| Failure to revise WCM (§706(1)) | Corps had a duty under ER 1110-2-240 to update WCM in response to changed conditions/flooding | Regulation uses discretionary language ("as necessary"); no mandatory, non‑discretionary duty exists | Regulation’s "shall...as necessary" confers discretion; no pleaded mandatory duty to revise WCM, so §706(1) relief on that theory fails at pleading stage |
| Duty to acquire additional land (§706(1)) | ERs and guidance (ER 405-1-12, ETL 110-2-22, others) required acquiring lands up to maximum design pool; Corps failed to do so | Corps says guidance/regulations are discretionary, non‑public, or not binding and thus impose no mandatory duty | Plaintiffs plausibly pleaded that ER 405-1-12 and ETL 110-2-22 may create a mandatory duty; remanded for production of non‑public ER/ETL and factual development to determine whether a binding, mandatory duty exists |
| Reassignment on remand | District judge’s rulings (denying discovery, ordering one‑page statement, factual statements) show bias; reassignment needed | No conduct showing inability to be impartial; reassignment would waste resources | Reassignment denied: appellate court found no objective basis to question judge’s impartiality and remand to the same judge appropriate |
Key Cases Cited
- Lujan v. National Wildlife Federation, 497 U.S. 871 (standing requires agency action and injury causation/redressability)
- Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55 (§706(1) mandamus relief limited to specific, nondiscretionary duties)
- Bowen v. Massachusetts, 487 U.S. 879 (equitable relief that requires payment is not necessarily "money damages")
- Knick v. Township of Scott, 139 S. Ct. 2162 (takings claims are for the Court of Federal Claims when compensation is sought)
- Luminant Generation Co. v. U.S. EPA, 675 F.3d 917 (judicial review under arbitrary-and-capricious standard limited to agency record)
- Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484 (§702 waiver and sovereign immunity principles)
- Amoco Production Co. v. Hodel, 815 F.2d 352 (when courts may "pierce the pleadings" to assess substance of equitable vs. monetary claims)