United States v. Pennsylvania Environmental Hearing BoardUnited States v. Pennsylvania Environmental Hearing Board
The United States of America brings this action requesting that “1. A judgment be entered declaring that: (a) Section 605 of the Pennsylvania Clean Stream Law, 35 P.S. 691.605, is neither applicable to nor enforceable against the United States or its officers or agents; (b) the civil penalties totaling $1,667,000.00 imposed by order of the Pennsylvania Environmental Hearing Board against the officers and agents of the United States, are invalid, and (c) the penalties entered as liens upon the Judgment Records of the Prothonotary of Lackawanna County, Pennsylvania, are null and void. 2. The defendants, their successors, agents, attorneys and employees be permanently enjoined from enforcing and collecting the said penalties as liens or instituting any proceedings to enforce the provisions of the Pennsylvania Clean Streams Law, 35 P. S.. 691.605, against the plaintiff herein; . ” Jurisdiction is invoked under Sections 1345, 2201 and 2202 of Title 28 of the United States Code.
Defendants have moved to dismiss the action on the grounds: (1) the court is without jurisdiction and the government lacks standing to sue; (2) the action is barred by the federal anti-injunction statute; (3) the doctrine of res judicata bars the court from granting relief; (4) the government waived its right to maintain this action since it did not remove the state proceeding pursuant to
On September 5, 1972, the Pennsylvania Department of Environmental Resources filed a complaint for civil penalties before the Pennsylvania Environmental Hearing Board (Board) against the Chamberlain Manufacturing Corporation, the operator of the United States Army Ammunition plant in Scranton, Pennsylvania; Daniel E. Duggan, Commanding Officer of that facility for the United States Army; and Robert Froehlke, Secretary of the Army. The complaint alleged violations of the Pennsylvania Clean Streams Law, Act of June 1937, P.L.1989, as amended,
The Board issued an “adjudication” and assessed civil penalties of $1,667,-000.00 against Chamberlain and Duggan. As to Froehlke, the complaint was dismissed for lack of jurisdiction over his person. The Board rejected the sovereign immunity claim and found that the complaint was filed against private individuals who were not acting within the scope of their governmental authority, and that the action was not against the United States. Chamberlain and Duggan filed an appeal to the Pennsylvania Commonwealth Court allegedly to protect their rights in the event of an adverse determination here. Subsequently, the appeal was stayed by the Commonwealth Court pending the disposition of various motions in this action, or until its further order.
The United States of America filed this action in its own right. The government initially moved for a preliminary injunction to prevent collection of the penalties imposed. The motion was withdrawn upon a stipulation that the liens would not be enforced pending the final disposition of this action.
Because of the procedural handling of the entire matter and the conflicting federal and state interests, serious and difficult problems of federal-state relations are presented. The main issues center around the interplay of the United States, as plaintiff, seeking declaratory and injunctive relief in a federal court to protect its interests during the pendency of a state proceeding involving the same issues with alleged agents of the government as defendants in the state action.
JURISDICTION AND STANDING
The court has jurisdiction with the United States as plaintiff pursuant to
ANTI-INJUNCTION STATUTE
Section 2283 of Title 28, United States Code reads:
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. . . . ”
Defendants argue the court lacks jurisdiction as the declaratory relief sought would necessarily be a permanent injunction against a state administrative proceeding. The United States is not a party to the Board proceeding. In Leiter Minerals, Inc. v. United States, supra, in which the United States brought suit to preliminarily enjoin a state court *549 proceeding, the Court held that under proper circumstances, § 2283 is not applicable to stays sought by the United States.
“ . . . There is, however, a persuasive reason why the federal court’s power to stay state court proceedings might have been restricted when a private party was seeking the stay but not when the United States was seeking similar relief. The statute is designed to prevent conflict between federal and state courts. This policy is much more compelling when it is the litigation of private parties which threatens to draw the two judicial systems into conflict than when it is the United States which seeks a stay to prevent threatened irreparable injury to a national interest. The frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state court proceedings except under the severe restrictions of28 U. S.C..§ 2283 ,28 U.S.C.A. § 2283 , would be so great that we cannot reasonably impute such a purpose to Congress from the general language of28 U.S. C. § 2283 ,28 U.S.C.A. § 2283 , alone.
“ . . . Therefore, since the position of the United States is essentially a defensive one, we think that it should be permitted to choose the forum in this ease, even though the state litigation has the elements of an action characterized as quasi in rem. . . . ”352 U.S., at 225-226 and 228.
RES JUDICATA
Defendants contend that Chamberlain and Duggan are bound by the Board’s determination that it had subject matter jurisdiction, and that the Board’s decision is res judicata and not subject to collateral attack.
The defendants’ position as to the United States is unclear. “The Defendants anticipate that the United States will raise the objection that sovereign immunity is a jurisdictional bar and that the applicability of the government’s immunity from' suit may be raised collaterally. United States v. United States Fidelity and Guaranty Co.,
The court’s concern is not the res judicata effect on Chamberlain and Duggan but rather on the United States as plaintiff here. There is certainly cause for dispute whether the subject matter jurisdiction was actually litigated without reservation so as to preclude Chamberlain and Duggan from collaterally attacking jurisdiction in this court.
See
Restatement of Judgments, § 10 (1942); England v. Medical Examiners, 1964,
The problem of a res judicata effect on the United States is compounded by the fact an Assistant United States At *550 torney appeared at the hearing on behalf of Chamberlain, Duggan and Froehlke. The government’s attorney indicated he appeared on behalf of the named defendants for the limited purpose to object to the jurisdiction of the Board. Reasons were given, and a brief memorandum in support of the objection was submitted. No evidence was presented on this issue.
In Land v. Dollar, 1946,
United States v. United States Fidelity Co., 1940,
“But, it is said, that there was a waiver of immunity by a failure to object to the jurisdiction of the Missouri District Court over the cross-claim. It is a corollary to immunity from suit on the part of the United States and the Indian Nations in tutelage that this immunity cannot be waived by officials. If the contrary were true, it would subject the Government to suit in any court in the discretion of its responsible officers. This is not permissible.” (Footnotes omitted.)309 U.S. 506 , at 513,60 S.Ct. 653 , at 657,84 L.Ed. 894 .
See IB Moore’s Federal Practice § 0.-405 [4.-1] at 650-652.
The fact that an Assistant United States Attorney appeared on behalf of the defendants for the limited purpose to object to jurisdiction does not change the result.
United States v. United States District Court, 9 Cir. 1953,
“As is seen, the United States is not named as a party and the court throughout its entertainment of the action has conducted the case upon its holding that the United States is not a party and is not a necessary or indispensable party to the maintenance of the action. . . . An Assistant Attorney General is the attorney of record for all of the named United States officials and employees who have appeared in the case, and throughout the proceedings he has actively participated in the interests of the Project as directed by the Attorney General of the United States.
“There is nothing new, irregular, or improper in the fact that government attorneys have been and are attorneys for the government officers and employees who have appeared in the case, and that fact, standing alone, does not bring the United States into the case as a party.
“The Rank v. Krug action has been on trial for approximately two hundred court days, and the relevant water problems have been presented in detail with governmental experts and counsel actively participating. However, the United States is not a party to the action, and no judgment in the case can be entered against it, and no *551 judgment that may be entered in the case can be res judicata as to the United States. . . . ” (Footnotes omitted.)206 F.2d 303 , at 306, 307.
See also United States v. Village of Little Chute, Wisconsin, 7 Cir. 1957,
In United States v. Dollar, 9 Cir. 1952,
“As we pointed out on an earlier occasion, United States v. Dollar, 9 Cir.,193 F.2d 114 , the ground of the judgment below is that by reason of the intervention of governmental counsel in the defense of the suit against the Maritime Commission, the United States is estopped to relitigate the issues determined in that suit. The decision appears to us at loggerheads with repeated declarations of the Supreme Court in the course of the earlier suit. Land v. Dollar,330 U.S. 731 , 736, 737, 739,67 S.Ct. 1009 ,91 L.Ed. 1209 ; Land v. Dollar,341 U.S. 737 , 739, 741,71 S.Ct. 987 ,95 L.Ed. 1331 . It is for that tribunal, not for us or for the district judge, to determine whether those declarations still hold good.” at 553.
Judge Pope in his concurring opinion, points to the consistency of a government attorney representing public officials, without a res judicata bar on the United States to later raise the defense of sovereign immunity:
“When an individual holding public office is sued, as here, it is not in the public interest that he should not be defended. I think that a public policy that he should -be defended and the. propriety of his challenged acts asserted, is fully consistent with the rule of sovereignty immunity. Yet appellees would have it that if the Attorney General provides this defense, the Government is bound practically to the same extent as. if it had been properly made a defendant in the first place.
“The argument that litigation should have an end, that the private litigant who sues the public officer as an individual should not be denied the fruits of a hard won victory, is not without appeal. But I think that the public policy behind the rule of sovereign immunity is one which must prevail against these other considerations. That, in my opinion, is why the ordinary rules of collateral estoppel should not apply here.” (Footnotes omitted.)196 F.2d 551 , at 554.
See also United States v. Dollar, 9 Cir. 1951,
In Hussey v. United States, 1911,
“(1) This ground is not tenable. Carr v. United States,98 U.S. 433 ,25 L.Ed. 209 , is a parallel case. There, as here, a judgment in an action against officers of the United States in possession of property, in which action the district attorney of the United States, by direction of the Secretary of the Treasury, appeared and defended, was urged in a subsequent action to estop the United States from contesting the title to the property. It was held that the judgment did not constitute an estoppel. To the same effect is United States v. Lee,106 U. S. 196 , 217,1 S.Ct. 240 ,27 L.Ed. 171 .” *552222 U.S. 88 , at 93,32 S.Ct. 33 , at 35,56 L.Ed. 106 .
Land v. Dollar, 1951,
. . While that judgment is not res judicata as to the United States, it is res judicata as to the Commission and the Secretary. And it is the Commission and the Secretary who have been ordered by this court to deliver possession of the shares. The claim of the United States does not appear to rest upon a record title or upon certificates issued to it, or upon any recorded fact whatever. It appears to rest upon a legal question of agency, and that question has been decided in a suit in which those agents made that claim.” at 376.
The District of Columbia court appears to take the position that a judgment involving governmental officials will not be res judicata as to the United States, but the United States in a subsequent suit may only raise matters not actually decided in the prior suit. This court refuses to follow this reasoning in view of the cases cited above which require the preservation of the sovereign immunity of the United States.
Assuming, arguendo, that the District of Columbia case is a correct interpretation of the law, the facts are substantially different here and would dictate a contrary result.
Restatement of Judgments, § 10 (1942) states:
“(2) Among the factors appropriate to be considered in determining that collateral attack should be permitted are that
“(a) the lack of jurisdiction over the subject matter was clear;
“(b) the determination as to jurisdiction depended upon a question of law rather than of fact;
“(c) the court was one of limited and not of general jurisdiction;
“(d) the question of jurisdiction was not actually litigated;
“(e) the policy against the court’s acting beyond its jurisdiction is strong.”
The Board certainly has limited jurisdiction, and there is compelling policy to maintain the sovereign immunity of the United States. See Comment (b) at 60-62. In addition, Chamberlain and Duggan did not willingly and without reservation submit the federal claim to the Board so as to bar a federal court from taking evidence and deciding the immunity question. England v. Medical Examiners, supra; Roy v. Jones, 3 Cir. 1973,
Although it cannot be said lack of jurisdiction is absolutely clear, the facts here strongly suggest a collateral proceeding to decide the federal sovereign immunity claim is not without justification. An Army commander of a government facility and a private corporation interacted to provide services to the government in that facility, and both were held civilly liable for polluting state waters in the production of army munitions. See, e. g., Lombard Corporation v. Resor, D.C.1970,
REMOVAL
The defendants contend the Board proceeding could have been removed to the federal courts, and failure to do so constitutes a waiver of maintaining this action. The government argues that it could.not have removed the state action because the Board proceeding was an administrative action and not a court proceeding as required by
“Viewed in this context, the ruling of the court below cannot be sustained. The federal officer removal statute is not ‘narrow’ or ‘limited.’ Colorado v. Symes,286 U.S. 510 , 517,52 S.Ct. 635 , 637,76 L.Ed. 1253 (1932). At the very least, it is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law. One of the primary purposes of the removal statute — as its history clearly demonstrates — was to have such defenses litigated in the federal courts. The position of the court below would have the anomalous result of allowing removal only when the officers had a clearly sustainable defense. The suit would be removed only to be dismissed. Congress certainly meant more than this when it chose the words ‘under color of . office.’ In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal coúrt. The officer need not win his case before he can have it removed.
In cases like this one, Congress has decided that fedéral officers, and indeed the Federal Government itself, require the protection of a federal forum. This policy should not be frustrated by a narrow, grudging interpretation of§ 1442(a)(1) .” Willingham v. Morgan, 1969,395 U.S. 402 , 406-407,89 S.Ct. 1813 , 1816,23 L.Ed.2d 396 .
The First Circuit in Volkswagen De Puerto Rico, Inc. v. Puerto Rico Labor Relations Board, 1 Cir. 1972,
Here, the Board’s procedures are adjudicatory, and not of a legislative nature, the Board can assess penalties for violation of an environmental law, and can file and enforce liens on property of those persons found in violation of the law. The question of sovereign immunity of federal officials is more properly one for a federal rather than a state administrative forum.
The question remains what is the effect of Chamberlain’s and Duggan’s failure to remove. The answer is closely tied to the res judicata effect of the *554 Board’s determination of its jurisdiction.
As to the United States, there cannot be a waiver of the right to present the sovereign immunity claim in a federal court. The United States was not a party to the Board’s proceeding. Nor was the United States required to intervene in the state action. Alonzo v. United States, 10 Cir. 1957,
Although it is not material to the determination here, there is a serious question if Chamberlain or Duggan waived any rights in view of the Supreme Court’s holding in England v. Medical Examiners, supra 4 :
“. . . That is, he may inform the state courts that he is exposing his federal claims there only for the purpose of complying with [Government & Civic Employees Organizing Committee v.] Windsor, [353 U.S. 364 ,77 S.Ct. 838 ,1 L.Ed.2d 894 ,] and that he intends, should the state courts hold against him on the question of state law, to return to the District Court for disposition of his federal contentions. Such an explicit reservation is not indispensable; the litigant is in no event to be denied his right to return to the District Court unless it clearly appears that he voluntarily did more than Windsor required and fully litigated his federal claims in the state courts. When the reservation has been made, however, his right to return will in all events be preserved.” (Footnotes omitted.) at 421-422.
ABSTENTION
The only question raised by the United States here, and by the individual defendants at the Board proceeding, is federal sovereign immunity. The questions subsumed in this determination, i. e., whether the officials acted within the scope of their authority, or whether the United States waived its immunity by congressional act, are of a federal nature. Neither the United States nor the defendants at the Board level raised any issue of state law, nor is the subject matter in dispute state related or local in character. See, e. g., Howell v. Citizens First National Bank of Ridgewood, 3 Cir. 1967,
• In Island Airlines, Inc. v. C. A. B., 9 Cir. 1965,
“We agree with the district court’s conclusion:
‘The United States may lawfully maintain suits in its own courts to prevent interference with the means it adopts to exercise its powers of government and to carry into effect its policies.’ (Citations omitted.) “This is true, and injunctive relief
will be granted, even though a state court action is pending raising the same issue, but with different parties. United States v. Deasy,24 F.2d 108 (D.Idaho 1928). . . .” at 744.
See also Id. at 742; United States v. Taylor’s Oak Ridge Corp., E.D.Tenn. 1950,
The policy reason underlying the abstention question here is similar to that which permits the United States to maintain a separate action to protect its sovereign interest in the face of the anti-injunction statute, and a res judicata bar, i. e., the overriding interest of the United States.
The United States is not a party to the Board proceeding. The court must exercise its jurisdiction “to prevent the effectuation of state court proceedings that might conflict with the ultimate federal court judgment.” Leiter Minerals, Inc. v. United States, supra at 228. It is anomalous to argue the United States is exempt from the anti-injunction statute and is not bound by res judicata to protect its interests, but that this court should abstain from hearing the matter pending a state determination of a purely federal concern.
This case presents an unusual situation. The parties stipulated that the penalties and liens will not be enforced or collected pending the final disposition of the instant case. .In return, the government withdrew its motion for a preliminary injunction. In the meantime, the Commonwealth Court stayed the appeal 5 of the Board’s decision. If the court were to abstain from hearing the matter and dismiss the action on Younger v. Harris principles, 6 or because of the anti-injunction statute, the penalties and liens might become collectible. This would be an abuse of the court’s discretion in view of the government’s interest.
OTHER ARGUMENTS
Defendants contend that the court should decline jurisdiction since “the Plaintiff and the real parties in interest have failed to exhaust their administrative and judicial remedies.” The exhaustion requirement does not apply to state judicial remedies. Gibson v. Berryhill, 1973,
It is finally contended that “The complaint fails to state a cause of action in that Plaintiff, United States of America, is subject to State requirements respecting control and abatement of pollution.” Defendants here allege from “October 18, 1972, onward, the United States has consented to any suit for pollutional discharges from federal facilities.” This allegation as well as other questions involving sovereign immunity are for this court’s determination. Nevertheless, it is to be noted that the Board did not assess any penalties for dates subsequent to October 4, 1972.
The motion to dismiss will be denied.
Notes
. Defendants’ “Memorandum In Support of Defendants’ Motions To Dismiss And To Strike” at 22.
. Id. at 25, 26.
. “
“(a) A civil action or criminal prosecution commenced in a State court . . .”
*553 Ҥ 1442a. Members of armed forces sued or prosecuted
“A civil or criminal prosecution in a court of a State of the United States . . . ”
. See the majority and concurring opinions in Roy v. Jones, supra, regarding the procedural posture of a case for the England abstention principles to apply; and England v. Medical Examiners, at 422 n. 13.
. Following the decision of the Board, and after this action was commenced, the individual defendants at the Board level filed an appeal to the Commonwealth Court. The appeal was filed allegedly as a protective measure, and presumably can be terminated by the individual defendants.
The intervening appellee, Department of Environmental Resources, filed a motion to quash the appeal as untimely. The motion is still pending.
. See, e. g., Younger v. Harris, 1971,