Burnette v. CarothersBurnette v. Carothers
RALPH G. BURNETTE, JR., and Marie G. Burnette, pro se, Somers, Connecticut, for Plaintiffs-Appellants.
ROBERT D. SNOOK, Assistant Attorney General (Richard Blumenthal, Attorney General of Connecticut, of counsel), Hartford, Connecticut, for Defendants-Appellees Lowell P. Weicker, Jr., Governor, Bruce L. Morris, CT Dept. of Public Works, Larry Meachum, Commissioner Official Capacity, CT Dept. of Corrections, State of Connecticut, John G. Rowland, Governor, Theodore R. Anson, Commissioner, John J. Armstrong, Commissioner.
ROBERT B. TEITELMAN, Assistant Attorney General (Richard Blumenthal, Attorney General of Connecticut, of counsel), Hartford, Connecticut, for Defendants-Appellees Leslie Carothers, Environmental Protection Department of Connecticut, and Arthur J. Rocque, Jr., Commissioner Environmental Protection.
WINTER, Chief Judge:
2 Appellants, Marie G. Burnette and Ralph G. Burnette, Jr., appearing pro se, are homeowners in the Rye Hill section of Somers, Connecticut. They filed this action against various state officers in their official capacities, claiming that hazardous substances had emanated, and continued to emanate, from the Connecticut Correctional Institute (“CCI“), a prison located north of Rye Hill and operated by the Connecticut Department of Corrections. Appellants alleged that these toxic substances had polluted and were continuing to pollute their on-site water wells. They sought injunctive and monetary relief.2 In addition, they sought reimbursement from defendants for response costs which were alleged to have been incurred as a result of “a release or threatened release of hazardous substances” from CCI. See
3 Arguing that the case was barred by the Eleventh Amendment, appellees moved to dismiss for lack of subject matter jurisdiction. They also moved for summary judgment on the claim for response costs, arguing that the Eleventh Amendment prohibited recovery of monetary damages. The district court dismissed all claims, holding that the State and its agents were immune from suit under the Eleventh Amendment. In addition, the court granted appellees’ motion for summary judgment, holding that appellants were not entitled to response costs from the State or to potential contribution costs because such recovery would violate the State‘s sovereign immunity. This appeal followed.
DISCUSSION
4 a) Citizen Suit
5 We review de novo a dismissal pursuant to
6 In dismissing the action, the district court held that Congress did not, by authorizing environmental citizen suits, intend to abrogate the states’ sovereign immunity. It also concluded that the State of Connecticut did not waive its sovereign immunity as to plaintiffs’ CWA, RCRA, and CERCLA claims. We agree.
7 The Eleventh Amendment provides that: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
8 In certain circumstances, however, Congress may abrogate the states’ constitutionally secured immunity from suit in federal court. To do so, Congress must make “‘its intention unmistakably clear in the language of the statute.‘” Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.” Atascadero, 473 U.S. at 246.
10 Appellants assert, however, that even if a citizen suit would ordinarily be barred under the Eleventh Amendment, immunity does not apply here because the complaint is in the nature of a qui tam action and the United States is the real party in interest. We disagree. In Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972), we held that “there is no common law right to maintain a qui tam action; authority must always be found in legislation. . . . [T]he terms and structure of the particular statute are decisive.” Id. at 84. The statutes at issue do not grant citizens the right to sue on behalf of the United States nor do they establish a formula for recovering civil penalties. To the contrary, the citizen suit provisions authorize “any citizen [to] commence a civil action on his own behalf.”
11 Appellants suggest on appeal that some of their claims remain viable because they fit within the exception to Eleventh Amendment immunity established by Ex Parte Young, 209 U.S. 123 (1908) (holding that suits against state officers, rather than against State itself, are permitted when seeking prospective relief). See Note 3, supra. However, appellants failed to raise this issue in the district court, even though they were then represented by counsel. Perceiving that no miscarriage of justice will result, we hold that their claim under Ex Parte Young has been waived. See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976) (noting that federal appellate courts may resolve issues not passed on below where injustice might otherwise result).
12 b) Recovery of Response Costs
13 Appellants next claim that they incurred costs in responding to the release of hazardous wastes from CCI and are therefore entitled to reimbursement from the State pursuant to
14 We review the district court‘s grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998). In doing so, we construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir. 1998).
15 As an initial matter, claims made pursuant to CERCLA Section 113(f),
17 The Supreme Court in Seminole held that Congress could abrogate the states’ Eleventh Amendment immunity only when acting under the power vested in it by Section 5 of the Fourteenth Amendment. See 517 U.S. at 59, 65-66. CERCLA, however, was enacted pursuant to the Commerce Clause, and any provision in it that makes a state liable to private parties is accordingly unenforceable. See Seminole, 517 U.S. at 62 (implicitly recognizing that CERCLA was enacted pursuant to Commerce Clause); Union Gas, 491 U.S. at 19-23 (CERCLA enacted pursuant to Commerce Clause); Ninth Avenue Remedial Group v. Allis-Chalmers Corp., 962 F. Supp. 131, 135 (N.D. Ind. 1997) (holding that because Congress did not have power to abrogate immunity under Commerce Clause, unconsenting states are not liable to private parties under CERCLA); United States v. Iron Mountain Mines, Inc., 952 F. Supp. 673, 675 (E.D. Cal. 1996) (CERCLA passed pursuant to Commerce Clause and thus Congress lacked power to abrogate immunity); Prisco v. New York, No. 91 Civ. 3990, 1996 WL 596546, at *12-*14 (S.D.N.Y. Oct. 16, 1996) (CERCLA claims dismissed because sovereign immunity could not be abrogated without action pursuant to Fourteenth Amendment or state waiver and neither was present).
18 Appellants contend that CERCLA was also enacted pursuant to Congress‘s spending power under Article I, Section 8, Clause 1. Even if this were the case, however, Congress would still lack the power to abrogate the states’ immunity. “[A]fter Seminole, Congress cannot abrogate the States’ Eleventh Amendment sovereign immunity pursuant to any Article I power.” Close v. New York, 125 F.3d 31, 38 (2d Cir. 1997); see also Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2205 (1999) (”Seminole Tribe makes clear that Congress may not abrogate state sovereign immunity pursuant to its Article I powers . . . .“); cf. Alden, 119 S. Ct. at 2246 (holding that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts“). “[T]he only source of congressional abrogation stems from the Fourteenth amendment.” Close, 125 F.3d at 38; see also College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2224 (1999) (noting that Court has recognized individual suits against unconsenting states only when authorized by Congress‘s valid exercise of its Fourteenth Amendment enforcement power).
20 Appellants also claim that although Connecticut did not expressly waive its Eleventh Amendment sovereign immunity, its actions may be construed as a constructive waiver. Relying on Parden v. Terminal Ry., 377 U.S. 184 (1964), they contend that Connecticut consented to suit in federal court under CERCLA by engaging in an activity regulated by Congress, namely the operation of a prison from which toxic chemicals were released. Parden, however, has now been expressly overruled. See College Savings Bank, 119 S. Ct. at 2228. Because the law is now clear that a state cannot “constructively waive[]” its sovereign immunity in the manner alleged, id., appellants’ argument on this point fails.
21 Appellants finally argue that Connecticut consented to suit under CERCLA through the acceptance of federal monies. However, “the mere receipt of federal funds cannot establish that a State has consented to suit in federal court.” Atascadero, 473 U.S. at 246-47. Here, Congress did not manifest a clear intention to condition the receipt of federal funds under CERCLA on a state‘s waiver of Eleventh Amendment immunity. The district court was, therefore, correct in finding that Connecticut did not consent to suit in federal court.
CONCLUSION
22 We therefore affirm.