OPINION
This is a fifth amendment takings case. Plaintiff Michael M. Johnson (“Johnson”) is the sole shareholder of Johnson Properties, Inc. (“JPI”). JPI is the owner of a number of subsidiary companies that operate private sewage treatment plants in Louisiana. The present action arises from an order issued by the United States District Court for the
While Johnson’s appeal was pending in the Fifth Circuit, he filed the present case in which he also challenges the appointment of the receiver on takings grounds. The case is presently before this court on the government’s motion for summary judgment. The government contends that the Fifth Circuit’s ruling precludes the plaintiff from litigating his takings claim in this court and, in the alternative, that plaintiff has failed to state a valid takings claim.
Because the court finds that Johnson has failed to state a claim, the government’s motion for summary judgment is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
The following facts are not in dispute. Plaintiff Johnson is the vice president, chairman, and sole shareholder of JPI. JPI owns numerous subsidiary companies which are primarily engaged in the water and sewage treatment industry. This action arises from actions taken by JPI at its sewage treatment plants in Louisiana.
In 1998, the United States sued JPI and some of its subsidiaries alleging numerous violations of § 301 of the Clean Water Act (“CWA”), see 33 U.S.C. § 1311(a) (1994). The State of Louisiana intervened in the action as a plaintiff and added various state law violations to the complaint. Thereafter, the parties negotiated a consent decree which was entered by the United States District Court for the Western District of Louisiana in 1998. The decree specified the actions JPI was required to take in order to abate its state and federal environmental violations, and established stipulated penalties to be paid in the event that JPI violated the decree. The decree stated that the district court would retain jurisdiction over the matter “until further order of the Court or until termination of [the] Consent Decree.”
In February 1999, the United States and the State of Louisiana petitioned the district court for appointment of a receiver to ensure JPI’s compliance with the terms of the consent decree. According to the federal and state governments’ petition, JPI was not making adequate progress toward fully implementing the consent decree. Five months after the decree was entered, none of the solid waste treatment plants inspected was found to be in compliance with the terms of the decree: inspectors found 661 violations of the decree, including the continued release of raw sewage and sewage sludge into the environment.
Before the district court ruled on the governments’ request for appointment of a receiver, on March 12, 1999, JPI filed a petition in the Middle District of Louisiana for Chapter 11 bankruptcy protection. JPI also filed an application for a stay of the enforcement action in the bankruptcy court. The bankruptcy court initially granted the stay. However, after a conference with the parties involved in the enforcement action, the bankruptcy judge concluded that the enforcement action was exempt from the automatic stay provision. JPI then noticed a motion for stay in the district court on March 15, 1999. The district court denied the motion, and JPI subsequently petitioned the Fifth Circuit for a writ of mandamus. On March 18, 1999, the Fifth Circuit denied the petition. See In re Johnson Properties, Inc., No. 99-30264 (5th Cir.1999) (order denying petition for writ of mandamus).
Thereafter, the district court conducted a hearing on the governments’ motion to appoint a receiver because of JPI’s failure to
On April 22, 1999, Johnson, not JPI, appealed the order appointing a receiver to the Fifth Circuit on the grounds that the appointment resulted in a taking. In particular, Johnson argued that the receiver’s right to sell corporate property in order to achieve compliance with the consent decree amounted to a taking of his private property without just compensation. On May 3, 2000, the Fifth Circuit dismissed Johnson’s appeal for lack of standing, ruling as follows:
[Johnson] contends that he will be permanently deprived of property because the receiver will sell some of JPI’s subsidiaries’ assets in order to finance the process of bringing the [sewage treatment plants] into compliance with the terms of the consent decree____Johnson cannot complain that he will be injured because some of the subsidiaries’ assets may be sold by the receiver. It is a well-established principle of corporate law that corporate assets belong to the corporation, not to the shareholder. Thus, the injury asserted by Johnson actually inheres to the corporation. ... [W]e have not addressed the question whether a shareholder has standing to allege a taking of corporate assets. The Federal Circuit, which has, has only exercised jurisdiction over a derivative action asserting a takings claim when the action could be construed “as filed by a sole shareholder on behalf of a corporation alleging that compensation to the corporation will result in a surplus in which the shareholder possesses a direct interest.” We are not persuaded that Johnson has alleged such an interest here. As a result, we find that Johnson lacks standing to bring a takings claim or to assert one on appeal.
United States v. Acadiana Treatment Sys., Inc.,
While the Fifth Circuit appeal was pending, Johnson filed the present action in this court alleging the same takings claim he had presented to the Fifth Circuit. In particular, Johnson claimed that the actions taken by the receiver appointed by the district court “in disposing of the [JPI subsidiary] corporations’ assets is a taking for which Michael M. Johnson is due just compensation under the United States Constitution.” On May 17, 2000, after the Fifth Circuit dismissed his appeal, Johnson filed an amended complaint in this court to address his standing to press this suit. In the amended complaint, Johnson alleged that as sole shareholder of JPI, “compensation to the business will result in a surplus in which the plaintiff, as sole owner of the business, possesses a direct interest,” thereby conferring jurisdiction upon him.
On September 22, 2000, the government filed a motion for summary judgment. The government contends that the present action is barred by the Fifth Circuit’s ruling. In the alternative, the government argues that plaintiff has failed to state a valid takings claim.
DISCUSSION
I. STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc.,
II. STANDING
The parties have devoted a large portion of their arguments to the question of whether the plaintiff has standing to bring a derivative shareholder suit in this court. The government takes the position that Johnson’s action is barred by principles of collateral estoppel and that Johnson may not relitigate his standing in this court because of the Fifth Circuit’s decision.
As noted above, the Fifth Circuit determined that Johnson could only bring a takings claim with respect to his corporation’s property through a derivative shareholder suit. The Fifth Circuit went on to hold that under the standard established by the Federal Circuit, a plaintiff asserting shareholder standing must, allege “that compensation to the corporation will result in a surplus in which the shareholder possesses a direct interest.” Applying that standard to Johnson, the Fifth Circuit concluded, “we are not persuaded that Johnson has alleged such interest here. As a result, we find that Johnson lacks standing to bring a takings claim or assert one on appeal.” Acadiana Treatment Sys., No. 99-30476, slip. op. at 10.
The Fifth Circuit additionally noted that any claim by Johnson based on JPI’s property interests was also barred by operation of the bankruptcy code. In a footnote, the Fifth Circuit stated, “because JPI has filed for bankruptcy, the bankruptcy trustee alone has standing to pursue a cause of action to enforce JPI’s rights. See 11 U.S.C. § 541(a).” Id. at 9 n. 4.
The plain words of the Fifth Circuit’s decision indicate that the court found that Johnson as an individual did not have standing and failed to properly assert a derivative shareholder interest. But the question posed to this court is whether the Fifth Circuit also decided that Johnson did not have standing as a shareholder to assert his action. As the Federal Circuit recently held in Banner v. United States,
Tested by these standards, this court finds that Johnson is not barred by collateral estoppel from maintaining this derivative shareholder claim. The Fifth Circuit plainly held that the Johnson could not bring an action with respect to corporate assets as an individual, but it did not reach the same conclusion with respect to his ability to bring a claim as a shareholder. To the contrary, the Fifth Circuit concluded that Johnson had failed to allege a claim on behalf of the corporation as a shareholder. In such circumstances, the issue of Johnson’s standing as a shareholder was not actually, and certainly not fully and fairly, litigated. Accordingly, under the Banner test, collateral estoppel does not bar Johnson from litigating this takings claim as a shareholder on behalf of his corporation.
The government argues in the alternative that even if Johnson has standing as a shareholder, his claim is still barred under the Bankruptcy Code. In particular, the government contends that the takings claim is still the property of JPI’s bankruptcy estate. In this connection, both parties agree that under 11 U.S.C. § 541, once JPI filed for bankruptcy, the rights of action of the debtor corporation passed to the estate created by commencement of the bankruptcy proceedings. Thereafter, only the bankruptcy trustee appointed to represent the debtor’s estate could bring suit. See Steyr-Daimler-Puch of Am. Corp. v. Pappas,
Johnson does not allege that he had the trustee’s or bankruptcy court's permission to proceed with this case. Instead, Johnson asserts that he is allowed to pursue this action on the grounds that the trustee “abandoned” this takings claim. In particular, Johnson argues that now that the bankruptcy estate is closed, the claim has been abandoned and he is free to pursue the action in his shareholder capacity.
The procedures for abandonment of property by a bankruptcy estate are set forth in 11 U.S.C. § 554:
(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(c) Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a ease is abandoned to the debtor and administered for purposes of section 350 of this title.
(d) Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate.
Relying on these provisions, Johnson argues that the trustee abandoned the takings claim when the District Court for the Middle Dis-triét of Louisiana issued its January 9, 2001 order, which directed that “the property of the estate remaining after the sale of busi
Any and all property of the bankruptcy estate of JPI, as consolidated with its subsidiary companies, that is not transferred as a result of the sale of assets and the terms of this chapter 11 plan be and is hereby deemed abandoned under the provisions of 11 U.S.C. § 554 as of entry of the order of confirmation of this plan.
Amended Plan of Reorganization, August 7, 2000, at 9.
The government argues in response that the takings claim is nonetheless still property of the bankruptcy estate because the claim was never properly abandoned within the meaning of the Bankruptcy Code. The government contends that in order for there to be a legal abandonment, the asset must be first identified and then affirmatively acted upon or rejected. See In re Auto West, Inc.,
There is no dispute that JPI, as debtor, never listed this takings claim as an asset of the bankruptcy estate, nor is there any evidence to suggest that the trustee in any way abandoned this claim. Because abandonment requires affirmative action or some other evidence of intent by the trustee, the government argues that the takings claim still belongs to the bankruptcy estate. See Stein v. United Artists Corp.,
While Johnson acknowledges these precedents, he argues that he should not be bound by them. He argues that under the unique circumstances of this case, the court should presume abandonment of the takings claim. First, Johnson asserts that under the terms of the district court order appointing the receiver, he was obliged to not interfere with the receiver’s actions and therefore was precluded from listing the claim as an asset, or suggesting to the receiver that he ought to do so. Johnson argues that in this case listing the claim with the trastee/receiver would have in effect been viewed as challenging the trustee/receiver’s actions. Second, Johnson argues that because the trustee was also acting in the capacity of the receiver, the trustee was fully aware of the claim, and this knowledge obviated the requirement that the claim be formally abandoned.
While the question is close, the court agrees with the government that under the existing precedent, the plaintiffs takings claim was never listed and therefore it was never formally abandoned. Although it is highly unlikely that the trastee/receiver would have brought this takings claim, the
III. TAKINGS CLAIM
At the heart of this case is plaintiffs mistaken belief that the actions of the receiver gave rise to a takings claim. As the government correctly argues, appointment of a receiver to ensure compliance with a consent judgment does not implicate the takings clause.
Invoking the analytical framework employed in cases involving the physical occupation and control of property, Johnson argues that the court’s appointment of a receiver to attain compliance with the consent decree amounts to a “per se taking.” To make this argument, Johnson relies upon the Supreme Court decisions in Loretto v. Teleprompter Manhattan CATV Corp.,
Johnson’s reliance on Loretto and Petvee Coal is misplaced. The Federal Circuit has examined the limits of per se takings analysis in the context of enforcement proceedings. and has held that the “taking” of property in connection with a proceeding to enforce the law does not give rise to a per se taking. In particular, the Federal Circuit explained in Branch v. United States,
If the State of New York had seized Loret-to’s property after she failed to pay a tax liability, or if the federal government had seized the assets of the Pewee Coal Company after the company failed to pay a large civil penalty, the seizure of the property would not be a taking. In such cases, the tax assessment or civil penalty might be challenged on Takings Clause or other constitutional grounds, but if those assessments survived constitutional scrutiny, the consequent enforcement action, including seizure of the property, could not be challenged as a taking.
Branch,
Thus, under the Federal Circuit’s test, Johnson can only prevail on his takings claim if he can show that the underlying action— here the consent decree — amounted to a taking. If the consent decree did not give rise to a taking, then a court order to ensure compliance with that decree could not give rise to a taking. Plainly, Johnson cannot show that the consent decree gave rise to a taking. Johnson’s corporation “consented” to the subject judgment and agreed to come into compliance with the law. In such circumstances, he cannot claim that the underlying action was a taking.
In an effort to distinguish his case from Branch, Johnson argues that the appointment of the receiver went beyond enforcement of the underlying consent judgment, which only called for stipulated penalties. Although Johnson does not question the district'court’s authority to appoint a receiver, he contends that the appointment was separate from enforcement of the consent decree. He argues that the court allowed the government to simply take over his business for the public purpose of providing water and sewage services.
It is well-settled law that courts have broad authority to enforce their judgments with orders such as the one at issue here. See Holland v. N.J. Dept. of Corrections,
In this connection, the court agrees with the government that the appointment of a receiver with broad authority over JPI’s property is analogous to a lawful forfeiture under a forfeiture statute. More specifically, the Supreme Court has held that the government is not required to compensate an owner for property which it has lawfully acquired under the exercise of governmental authority other than eminent domain. Bennis v. Mich.,
In sum, the takings clause is not implicated by the district court’s action in ordering compliance with the consent decree through the appointment of a receiver with broad rights and responsibilities. The government’s motion in the alternative, for summary judgment on the basis that the plaintiff
CONCLUSION
Because Johnson has failed to state a valid takings claim against the government, Johnson has failed to state a claim for which this court can accord relief. Defendant’s motion for summary judgment is therefore GRANTED and the case is accordingly dismissed. Each party shall bear its own costs.
Notes
. Although the government originally argued that res judicata bars Johnson’s case, that argument is not supported. Res judicata, generally speaking, "bars a second attempt to relitigate the same cause of action between the parties” to an earlier action, as well as any other claim or issue that could have been raised in that action. United States v. Tatum,
While res judicata may not bar the suit, collateral estoppel may. Collateral estoppel is related to the doctrine of res judicata but "it can be applied to narrower portions of an action than is the case for res judicata.” Tatum,
. In making this argument at oral argument, Johnson suggested that the district court acted in error by appointing the same individual to serve as both the receiver and the trustee in this instance. Although Johnson did not seriously challenge the district court on this matter, it should be noted that this type of collateral attack cannot be permitted before this court. See Johnson v. Manhattan Ry. Co.,
. Johnson expressly represents that the receiver’s actions do not give rise to a regulatory taking. The court will therefore limit its analysis to a per se takings analysis.
. In a recent decision, Judge Loren Smith of this court opined that there is the potential for a compensable "judicial taking” in certain circumstances where "a court's decision that does not even 'arguably conform [] to reasonable expectations’ in terms of relevant law of property rights effects a ‘retroactive transformation of private into public property.’ ” Ultimate Sportsbar v. United States,
. The government also argues that where, as here, a defendant’s violations constitute a nuisance, there can be no taking when the government seeks to abate that nuisance. Because the court concludes that enforcement of the consent decree does not implicate the takings clause, the court does not reach this additional argument regarding the character of JPI’s consent decree violations.