U.S. Technology Corporation et al v. Mississippi Department of Environmental Quality et al
Filing
61
ORDER granting 34 Motion to Dismiss; granting 36 Motion to Dismiss; denying 53 Motion for Preliminary Injunction Signed by Honorable David C. Bramlette, III on 7/28/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
U.S. TECHNOLOGY CORPORATION, et al.
VS.
PLAINTIFFS
CIVIL ACTION NO. 5:15-cv-66(DCB)(MTP)
MISSISSIPPI DEPARTMENT OF
ENVIRONMENTAL QUALITY, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Motion to Dismiss
(docket entry 34) brought by defendant Richard Harrell (“Harrell”)
in his individual capacity; on the Motion to Dismiss (docket entry
36) brought by defendant Steven Bailey (“Bailey”) in his individual
capacity; and on the Motion for Preliminary Injunction (docket
entry 53) brought by plaintiffs U.S. Technology Corporation and
Raymond F. Williams.
Having carefully considered the motions and
responses, the memoranda of the parties and the applicable law, and
being fully advised in the premises, the Court finds as follows:
Plaintiff U.S. Technology Corporation (“UST”) and an entity
known as Hydromex entered into a supply and recycle agreement on
August 11, 2000.
The Hydromex Agreement obligated Hydromex to
recycle a material called “spent blast material” (“SBM”) sent by
UST
to
the
Hydromex
operation
in
Yazoo
City,
Mississippi.
According to the plaintiffs’ Amended Complaint, defendant Steven
Bailey,
an
employee
of
defendant
Mississippi
Department
of
Environmental Quality (“MDEQ”), visited the Yazoo site from 2000-
2002. Shortly after Bailey’s visits to the site began, MDEQ issued
an order against Hydromex, and Hydromex was shut down in November
of 2002.
Thereafter, MDEQ and UST entered into an Agreed Order,
and a series of Amendments to that Order, concerning the SBM at the
Yazoo property.
In 2008, UST also filed a lawsuit against Pat
Ramsay and Delta Logging Company, Inc. (“Delta Logging”).1
In the
2008 lawsuit, UST sought cost recovery and contribution from Ramsay
and Delta Logging (the landowner of the subject property) for
remediation and recycling costs related to the remaining waste at
the Yazoo property, under the Federal Comprehensive Environmental
Response Compensation and Liability Act (“CERCLA”).
The 2008
lawsuit was ultimately resolved through an agreement between UST
and Ramsay, pursuant to which UST would continue operations as
outlined in a 2011 Agreed Order between UST and MDEQ.
Two years later, in 2013, the plaintiffs maintain that they
“petition[ed] the Court for relief” in the case between UST and
Ramsay due to “intervening causes interfering with the completion
of the settlement agreement between ... UST and Ramsay.”
Amended
Complaint, ¶ 72. Thereafter, the plaintiffs contend that MDEQ sent
UST a cease and desist letter concerning the SBM after test results
“reported high cadmium results.”
Id., ¶¶ 88, 90.
The plaintiffs
contend that MDEQ’s testing of the SBM was incorrect, that the
plaintiffs’ testing was accurate, and that the SBM is non-toxic.
1
UST v. Ramsay, et al., Civil Action No. 5:08-cv-218(DCB).
2
Id., ¶¶ 98-99.
On July 14, 2015, the plaintiffs filed their
original Complaint in the instant federal action, and subsequently
filed an Amended Complaint on December 3, 2015.
There are two federal causes of action asserted against the
individual defendants Harrell and Bailey in the Amended Complaint:
Deprivation of Due Process Rights under 42 U.S.C. § 1983 (Count 8),
and Violation of the Dormant Commerce Clause (Count 9).
plaintiffs’
claims
and
the
individual
defendants’
The
qualified
immunity defenses must be viewed in conjunction with the series of
agreed orders entered into between the plaintiffs and MDEQ.
After
the Hydromex operation was shut down in 2002, UST and MDEQ entered
an Agreed Order and a series of Amendments, which are incorporated
in and attached to the plaintiffs’ Amended Complaint.
2003 Agreed Order: The first Agreed Order was entered into
between UST and MDEQ in July of 2003. This original Order provides
that UST “shipped to Hydromex much of the spent blast material
[“SBM”] that has been received at and handled by Hydromex.” Agreed
Order, p. 1.
The Agreed Order also states that the material
“received by Hydromex was to be either nonhazardous or was to be
handled and recycled in such a manner as to qualify the material
for the ‘recycling exclusion’ from the definition of solid waste
contained in 40 C.F.R. § 261.2(e).”
Id.
The Agreed Order further
states that “much of the material received by Hydromex was handled
in an improper manner.”
Id.
3
In addition, and pursuant to Commission Order No. 4510-02
issued against Hydromex, the 2003 Agreed Order explicitly set forth
MDEQ’s position on the material at issue in the instant litigation:
“the Commission considers all of this material in its current
condition or status to be solid or hazardous waste subject to
regulation by Subtitles D and C of the Resource Conservation and
Recovery Act ..., Miss. Code Ann. § 17-17-1 et seq., and the
Mississippi Hazardous Waste Management Regulations (Regulation HW1).”
Agreed Order, p. 2.
Through the original Agreed Order, UST
sought “permission from the Commission to conduct operations at the
Hydromex facility to recycle and remove the containerized material
and the inadequately or improperly recycled material located at the
Hydromex facility.”
Id.
UST submitted to MDEQ “a comprehensive
plan describing how [UST] proposes to handle the ... material ...
at the Hydromex site in a manner that will render the material
nonhazardous ....”
Id., p. 3.
The Agreed Order set forth that any
“deviation from this plan must be approved in advance by the
Commission.”
Id., pp. 3-4.
The Agreed Order also made clear that
“[n]othing ... shall limit the rights of MDEQ or the Commission in
the event [UST] fails to comply with the Agreed Order,” and that
“[n]othing contained in this Agreed Order shall limit the rights of
the Commission to take enforcement or other actions against [UST]
... for past, present, or future violations of environmental laws,
rules, and regulations or for the creation or exacerbation of any
4
pollution or contamination at the Hydromex facility.”
Id., p. 7.
2011 Agreed Order, First Amendment: In February 2011, UST
sought to amend the original agreed order. Specifically, UST sought
“permission from the Commission to remediate the former Hydromex,
Inc. site.
The ultimate objective of th[e] Agreed Order Amendment
is to remediate the site to clear closure.”
First Amendment (Doc.
28-4). Under this Amendment to the Agreed Order, UST was to “submit
a Site Remediation Plan to MDEQ for approval” and upon MDEQ’s
request, UST was to “perform TCLP analyses on the blocks and report
its results to MDEQ.”
Id.
Similarly, under the agreed amendment,
“[a]ll materials deemed by MDEQ to be non-recyclable” were to be
“evaluated ... for appropriate disposition as determined by MDEQ”
and any sampling results were to be provided to MDEQ, with MDEQ
retaining the right to “take split samples.”
The 2011 amendment
also provided as follows:
[UST] shall have two (2) calendar years … to complete the
processes of material recovery, onsite reconstitution,
shipment of the recyclable materials to the designated
manufacturing facility, disposal of the non-recyclable
materials, over-excavation of the soil, and disposal of
the over-excavated soil.
. . .
Any deviation from this Agreed Order Amendment, the Site
Remediation Plan, or the Post-Closure Plan must be
approved in advance in writing by MDEQ on behalf of the
Commission.
Id.
2013 Second Agreed Order Amendment:
5
In June 2013, ten years
after the original agreed order, UST sought to amend again, and MDEQ
agreed to provide “additional time to [UST] to remediate the
[Hydromex] site.”
Second Amendment, p. 2.
By the terms of the
second agreed amendment, UST was provided until December 31, 2013
to “remediate the site” and UST was allowed “to utilize the
processed SBM at the site as intermediate road base as approved by
the Mississippi Department of Transportation.”
Id., pp. 2-3.
This
agreed order also outlined a process for sampling test results and
stated that MDEQ “may take split samples.”
Id., pp. 4-5.
Further,
the second agreed order mandated that “[a]ny deviation from this
Second Amendment to Agreed Order must be approved in advance in
writing by MDEQ on behalf of the Commission.”
Id., p. 9.
In their Amended Complaint, the plaintiffs maintain that, on
or about October of 2013, “MDOT informed Plaintiff Williams of UST
that the project [discussed in the second agreed amendment] did not
receive its funding and as such the project would not be going
forward as planned.”
Amended Complaint, ¶ 56.
Plaintiff Williams
allegedly contacted Defendant Bailey from MDEQ and requested that
UST be allowed to “move the remaining SBM down the street to store
it until the MDOT funding was received or other arrangements could
be made.”
Id., ¶ 58.
According to the complaint, “Defendant
Harrell directed Defendant Bailey to inform Plaintiff Williams that
he could not store the SBM a mile down the road” and that the SBM
needed to be removed by December 31, 2013 per the express language
6
of the agreed order.
Id., ¶ 60.
Nevertheless, the plaintiffs then “entered into a contract with
a recycling facility known as and referred to as MGM in Missouri”
and “took measures to have the SBM moved to MGM,” without receiving
written approval from MDEQ as required by the 2013 agreed order
amendment.
Id., ¶¶ 66-67.
The Amended Complaint alleges that
“Plaintiff Williams had a conversation with Defendant Bailey and
Attorney Roy Furrh from MDEQ about the shipments ....” Id., ¶ 70.
The plaintiffs characterize MDEQ’s direction for the plaintiffs to
“cease all shipments to Missouri” as “arbitrary,” despite the second
agreed order amendment not being complied with by UST, and despite
UST admitting to violating the second agreed order amendment in the
third agreed order amendment.
2014 Third Agreed Order Amendment: In April 2014, MDEQ and UST
entered into a third amendment to the original agreed order.
pertinent part, the agreement states:
In October and November, 2013, [UST] shipped via truck
approximately 9,075,722 pounds of wastes including Spent
Blast Material (“SBM”) from the Hydromex site ... to
Missouri Green Materials (“MGM”) without obtaining the
required approval from MDEQ. This action by [UST] was a
violation of the Second Amendment to Agreed Order Number
4614-03 previously issued on June 13, 2013 ....
Approximately 7,000,000 pounds of the wastes remain on
location at the Hydromex site.
...
In violation of ... the Second Amendment to Agreed Order
No. 4613 03, [UST] has failed to use the SBM at the MDOT
site(s) and did not properly dispose of the remaining
material by December 31, 2013; and further, [UST] did not
7
In
seek or gain approval in advance from MDEQ prior to
shipping approximately 9,075,722 pounds of wastes
including SBM to Missouri.
Third Amendment, pp. 1-2.
Despite UST’s labeling MDEQ actions as “arbitrary,” UST entered
into the third agreed order, agreeing to the above violations.
UST
also “agree[d] to settle the ... matter ... [i]n lieu of a formal
enforcement hearing.”
Id., ¶ 3.
In addition, UST agreed “to treat
and dispose of the remaining approximately 7 million pounds of
wastes including SBM and contaminated soil at the Hydromex site ....
In addition to the Treatment and Disposal plan requirements, [UST]
must treat the wastes at the site to meet federal land disposal
restrictions (“LDR”) standards before transportation and disposal
of the treated material.”
Id., ¶¶ 3-4.
Much of the plaintiffs’ complaint in this case centers on a
dispute over the testing of the SBM and whether it should be
classified as “waste,” despite the fact that the SBM is clearly
classified as “waste” in the 2014 third agreed order amendment, and
in the original agreed order of 2003.
Like the previous agreed
amendments, the third agreed order amendment contains the following
provisions:
Any deviation from this Third Amendment to Agreed Order
must be approved in advance in writing by MDEQ on behalf
of the Commission.
. . .
The execution of this Third Amendment to Agreed Order by
[UST] constitutes [UST’s] commitment to remediate the
8
site to clean closure.
. . .
[UST] consents to the entry of this Third Amendment to
Agreed Order by resolving the claims of the Commission
addressed herein. At the same time, the parties agree
that the Commission continues to allege that the matters
addressed herein are violations as expressed herein.
Id., pp. 8-9.
In addition, Section 9 of the third amendment specifically
indicates that MDEQ and the commission are not limited in taking
enforcement or other actions for violations not addressed or for
future violations. Id. at 20, ¶ 9. Shortly after the entry of that
order, MDEQ “decided to test the treated material,” as provided in
the order, and “the results reported high cadmium results.” Amended
Complaint, ¶ 88.
According to the Amended Complaint, “the high
results as reported by the internal MDEQ lab caused MDEQ to send a
cease and desist letter on July 8, 2014 to Plaintiff UST’s counsel.”
Id., ¶ 90. The plaintiffs maintain that “MDEQ chief of staff, Chris
Wells, indicated in an email in November of 2014 that Plaintiff UST
could proceed under the Order if payments were made to MDEQ of
$5,000.00 a week.
Such a stance by Mr. Wells is arbitrary,
capricious and abusive to Plaintiffs.” Id., ¶¶ 106-107.
The defendants move for dismissal of the Amended Complaint.
To survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a “complaint must allege ‘sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.’”
9
Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th
Cir. 2010)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1949 (2009)).
“‘A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Hershey,
610 F.3d at 245 (quoting Iqbal, 556 U.S. 662, 129 S.Ct. at 1949).
Although a court must take the factual allegations in the complaint
as true and construe them in the light most favorable to the
plaintiff, this “tenet” is “inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678.
In other words, “conclusory allegations or
legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied
Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993); Patton v. Bryant,
2014 WL 36618, *1 (S.D. Miss. Jan. 6, 2014), reconsideration denied,
2014 WL 457921 (S.D. Miss. Feb. 4, 2014), aff’d, 584 F. App’x 242
(5th Cir. 2014).
I. 42 U.S.C. Section 1983 and Qualified Immunity
The defendants claim qualified immunity in reference to 42
U.S.C. § 1983.
The doctrine of qualified immunity shields a
governmental official from civil liability for damages based upon
the performance of discretionary functions if the official’s acts
did not violate clearly established constitutional or statutory law
of which a reasonable person would have known.
467 F.3d 459, 462 (5th Cir. 2006).
10
Easter v. Powell,
Qualified immunity applies when
a government official reasonably could have believed that his
Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir.
actions were legal.
2011)(en banc).
“This immunity protects all but the plainly
incompetent or those who knowingly violate the law ....”
371.
Id. at
Therefore, a court should not deny immunity unless “existing
precedent [has] placed the statutory or constitutional question
beyond debate.”
Id. (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083, 179 L. Ed. 2d 1149 (2011)).
To determine whether a defendant is entitled to qualified
immunity,
the
court
analysis,
inquiring
engages
“(1)
in
whether
a
non-sequential,
the
plaintiff
two-pronged
has
alleged
a
violation of a constitutional right and, if so, (2) whether the
defendant’s
behavior
was
objectively
reasonable
established law at the time the conduct occurred.”
of
Oxford,
Miss.,
2013
WL
123703,
2013)(citing Easter, 467 F.3d at 462).
*3
(N.D.
under
clearly
Parks v. City
Miss.
Jan.
9,
If the plaintiff fails to
state a constitutional claim or if the defendant’s conduct was
objectively reasonable under clearly established law, then the
governmental official is entitled to qualified immunity.
Id.
Once a defendant has invoked qualified immunity, the plaintiff
has the burden of demonstrating that the defendant is not entitled
to such immunity.
2007).
Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
To sustain the burden under § 1983, a plaintiff “must claim
that the defendants committed a constitutional violation under
11
current law” and “that the defendants’ actions were objectively
unreasonable in light of the law that was clearly established at the
time of the actions complained of.” Atteberry v. Nocona Gen. Hosp.,
430 F.3d 245, 252-53 (5th Cir. 2005).
Even after Iqbal, the Fifth
Circuit has explained that, when a defendant asserts the defense of
qualified immunity, district courts “are guided both by the ordinary
pleading standard and a heightened one.”
351 F.App’x 890, 893 (5th Cir. 2009).
Floyd v. City of Kenner,
“Heightened pleading requires
allegations of fact focusing specifically on the conduct of the
individual who caused plaintiff’s injury.” Reyes v. Sazan, 168 F.3d
158, 161 (5th Cir. 1999).
A plaintiff, under this standard, “cannot
be allowed to rest on general characterizations” in its complaint.
Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995)(en banc).
Instead, the complaint “must speak to the factual particulars of the
alleged actions ....”
Id.
The plaintiffs’ claims, pursuant to 42 U.S.C. § 1983, are also
subject to section 1983’s statute of limitations.
Many of the
allegations asserted in the amended complaint fall outside of the
statute of limitations.
For instance, much of the complaint refers
to alleged actions taken by MDEQ and/or the individual defendants
in 2002 and early 2011.
Amended Complaint, ¶¶ 25-46.
Because
Congress has not specified a limitations period for Section 1983
suits, in such cases “federal courts borrow the forum state’s
general personal injury limitations period.”
12
Piotrowski v. City of
Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995).
The relevant
limitations period in Mississippi is three (3) years from the day
the cause of action accrues.
Miss. Code Ann. § 15–1–49 (2003); see
also James v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990)(in § 1983
suit, finding “the three year residual period provided by Section
15–1–49, Miss. Code Ann. applies”); Cuvillier v. Taylor, 503 F.3d
397, 401-02 (5th Cir. 2007).
The plaintiffs’ original Complaint was
filed on July 14, 2015, and their Amended Complaint was filed on
December 3, 2015.
Therefore, to survive a motion to dismiss on
statute of limitations grounds, the plaintiffs’ claims must have
originated less than three years before the complaints were filed.
Several of the allegations in the Amended Complaint are brought
solely against MDEQ, “the defendants” collectively and/or other
named MDEQ officials.
Such vague and imprecise allegations do not
comport with the doctrine of qualified immunity and the dictates of
Section 1983.
Liability under Section 1983 may not be conferred to
an individual defendant by general allegations against MDEQ or other
individuals
employed
by
MDEQ,
because
defendant’s
personal
involvement
in
proof
the
of
alleged
an
individual
wrong
is
a
prerequisite to liability on a claim for damages under 42 U.S.C. §
1983.
Tate v. Gusman, 459 F. Supp.2d 519, 523 (E.D. La. 2006).
A
state actor may be individually liable under § 1983 only if he or
she “was personally involved in the acts causing the deprivation of
his constitutional rights ....”
Douthit v. Jones, 641 F.2d 345 (5th
13
Cir. 1981); see also Watson v. Interstate Fire & Casualty Co., 611
F.2d 120 (5th Cir. 1980).
Thus, the individual defendants are
entitled to immunity under § 1983 for any asserted actions in which
they were not personally involved.
II. The Dormant Commerce Clause Claim
The Commerce Clause provides that Congress has the power to
regulate interstate commerce.
U.S. CONST. ART. I, § 8, c1. 1,3.
If, however, Congress has chosen not to regulate in a certain area,
then the states or localities may regulate in that area, subject to
the so-called “Dormant Commerce Clause.” United Haulers Ass’n, Inc.
v. Oneida-Herkimer Solid Waste Mgmt., 127 S.Ct. 1786, 1792-93
(2007).
Dormant Commerce Clause analysis involves a two-step
inquiry:
the
first
question
is
“whether
discriminates against interstate commerce.”
a
challenged
law
Department of Revenue
of Ky. v. Davis, 553 U.S. 328, 338 (2008); see also United Haulers
Ass’n., Inc. v. Oneida–Herkimer Solid Waste Mgmt. Auth., 550 U.S.
330, 338 (2007)(“to determine whether a law violates this so-called
‘dormant’ aspect of the Commerce Clause, we first ask whether it
discriminates on its face against interstate commerce”). The second
step
of
the
interstate
inquiry
commerce:
examines
“Absent
any
potential
discrimination
burden
for
placed
[a]
on
forbidden
purpose ... the law ‘will be upheld unless the burden imposed on
[interstate] commerce is clearly excessive in relation to the
putative local benefits.’”
Davis, 553 U.S. at 338–39.
14
The Dormant
Commerce Clause generally “prohibits economic protectionism – that
is, regulatory measures designed to benefit in-state economic
interests by burdening out-of-state competitors.”
New Energy Co.
v. Limbach, 486 U.S. 269, 273 (1988).
In this case, the plaintiffs’ allegations do not raise a
Dormant Commerce Clause concern, nor do they allege that defendants
Harrell and/or Bailey acted objectively unreasonable under any
“clearly established” Dormant Commerce Clause law.
In fact, they
do not point to a single state or local law that supposedly runs
afoul of the dormant Commerce Clause.
The plaintiffs contend only
that “Defendants’ statements to the Missouri EPA that the SBM was
hazardous, and ordering Plaintiffs to cease all SBM shipments to
MGM, the Missouri facility, had and have no basis in law.”
Complaint, ¶ 208.
should
not
be
Amended
Although the plaintiffs contend that the SBM
classified
as
“hazardous
waste”
and
that
the
plaintiffs should be able to transport the SBM wherever they please,
the Dormant Commerce Clause does not afford such a right.
The
Commerce Clause does not bestow on businesses a right to be free
from allegedly excessive regulation, environmental or otherwise.
Nor does the Clause protect any particular business or individual
engaged in interstate commerce.
In rejecting such claims of undue
burden, the Fifth Circuit has emphasized that the Clause “protects
the interstate market, not particular interstate firms.”
Insur. Co. v. Abbott, 495 F.3d 151, 164 (5th Cir. 2007).
15
Allstate
“[T]he
fact that a law may have ‘devastating economic consequences’ on a
particular interstate firm is not sufficient to rise to a Commerce
Clause burden.”
Pharm. Research & Mfrs. of Am. v. Concannon, 249
F.3d 66, 84 (1st Cir. 2001).
Moreover, the plaintiffs do not plead any “discrimination” on
interstate commerce, and do not plead facts showing the absence of
even-handedness in the application of any state or local law.
Discrimination
“differential
in
the
treatment
instant
of
context
in-state
and
is
defined
out-of-state
as
the
economic
interests that benefits the former and burdens the latter.”
Oregon
Waste Sys. Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994).
The classic example of discriminatory treatment is a state law that
imposes substantially higher fees on out-of-state operators than
similarly situated in-state operators.
See, e.g., Ford Motor Co.
v. Texas Dep’t of Transp., 264 F.3d 493, 500 (5th Cir. 2001).
That
a regulatory burden “falls on some interstate companies does not,
by itself establish a claim of discrimination against interstate
commerce.” Exxon Corp. v. Maryland, 437 U.S. 117, 126 (1978); Ford
Motor Co., 264 F.3d at 501.
The plaintiffs’ Amended Complaint contains no allegation that
any state or local law draws a distinction between interstate and
intrastate commerce so as to trigger Commerce Clause concerns.
Instead, the plaintiffs contend only that UST is burdened by
regulatory
oversight
from
the
state
16
agency
charged
with
that
oversight.
The plaintiffs then allege that individual employees of
MDEQ should be held individually liable for monetary damages.
Further, although the plaintiffs complain about the shipments to
Missouri being halted, they admitted in writing in an agreed order
that the shipments amounted to an explicit “violation of the Second
Amendment to Agreed Order Number 4614-03 previously issued on June
13, 2013.”
neither
Third Amendment, pp. 1-2.
invoke
the
Dormant
The plaintiffs’ allegations
Commerce
Clause
nor
overcome
the
qualified immunity hurdle.
III. Due Process Claims
The
plaintiffs’
next
federal
pursuant to the Due Process Clause.
cause
of
action
is
brought
The right to due process has
both procedural and substantive dimensions.
“[T]he Due Process
Clause’s primary protection against the arbitrary exercise of power
by government officials is its requirement of fair procedures - that
is, of procedural due process.”
Univ.,
227
F.3d
133,
139
(3rd
Nicholas v. Pennsylvania State
Cir.
2000).
“The
substantive
component of the Due Process Clause limits what government may do
regardless of the fairness of procedures that it employs, and covers
government conduct in both legislative and executive capacities.”
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 399 (3rd
Cir. 2000)(citing County of Sacramento v. Lewis, 523 U.S. 833, 846
(1998)). But the Supreme Court “has always been reluctant to expand
the concept of substantive due process because guideposts for
17
responsible decisionmaking in this unchartered area are scarce and
open-ended.”
Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992).
The plaintiffs’ due process claim centers on a violation of a
purported liberty interest. According to the Amended Complaint, the
“Defendants violated Plaintiffs’ fundamental liberty interest in
operations.”
Amended Complaint, ¶ 197.
The complaint then alleges
that “Defendants MDEQ, Bailey and Harrell, acting under color of
state law, violated Plaintiff[s] ... fundamental liberty interest
in continuing its business and allowing it to meet its obligations
to other entities.”
Id., ¶ 198.
Because the plaintiffs do not
specify whether they are asserting a substantive or procedural due
process claim, the Court addresses both.
A. Substantive Due Process
The starting point for both a substantive and a procedural due
process claim is the showing of an identifiable liberty interest
protected under the Fourteenth Amendment.
See Siegert v. Gilley,
500 U.S. 226, 232 (1991)(noting that whether the plaintiff has been
deprived of a right secured by the Constitution is a threshold
inquiry in a § 1983 claim); Moore v. Willis Independent School
Dist., 233 F.3d 871, 875 (5th Cir. 2000); Bishop v. Wood, 426 U.S.
341, 347–50 (1976)(affirming summary judgment for defendants because
plaintiff had failed to show a deprivation of a cognizable liberty
or property interest).
As the undersigned found in Torjusen v.
18
State of Mississippi, 1995 WL 865479, (S.D. Miss. March 15, 1995),
“In order for Plaintiff to succeed on his due process claim under
§ 1983, he must prove that he has a recognized ‘liberty or property’
interest within the purview of the Fourteenth Amendment.”
*11.
Id. at
The plaintiffs claim that “Defendants MDEQ, Bailey and
Harrell, acting under color of state law, violated Plaintiff UST’s
and
Williams’
fundamental
liberty
interest
in
continuing
its
business and allowing it to meet its obligations to other entities.”
Amended Compliant, ¶ 198. The Due Process Clause does encompass the
right “to engage in any of the common occupations of life,” Board
of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972), and
this
concept
individuals.
of
liberty
protects
Trifax Corp. v.
corporations
as
well
as
District of Columbia, 314 F.3d 641,
643 (D.C. Cir. 2003). Notwithstanding this general principle,
however, the plaintiffs have not been denied the opportunity to
engage in their chosen occupation/business, and they have not
plausibly pled a cognizable liberty interest as a matter of law.
As
numerous
courts
have
reasoned,
the
Constitution
only
protects this enumerated liberty from state actions that threaten
to deprive persons of the right to pursue their chosen occupation.
State actions that exclude a person from one particular job or state
actions that provide governmental oversight of that job are not
actionable in a due process claim.
See, e.g., Conn v. Gabbert, 526
U.S. 286, 291-92 (1999)(finding that the Fourteenth Amendment’s “due
19
process right to choose one’s field of private employment ... is
nevertheless subject to reasonable government regulation”).
The
protected liberty interest is therefore one to pursue a calling or
occupation, i.e. to enter an economic field.
Id.; see also Bernard
v. United Twp. High Sch. Dist. No. 30, 5 F.3d 1090, 1092–93 (7th
Cir. 1993); Latessa v. N.J. Racing Comm’n, 113 F.3d 1313, 1317–18
(3rd Cir. 1997).
In this case, the plaintiffs do not allege an inability to
obtain employment or enter an economic field. In fact, MDEQ is only
requiring the plaintiffs to perform their business activities in
Mississippi in the manner to which they agreed in the agreed orders,
and with continued regulatory oversight by MDEQ and Region IV of the
Environmental Protection Agency (“EPA”). Third Amendment, pp. 1-20.
For example, in Section 9 of the Third Amendment, the plaintiffs
specifically agreed that MDEQ or the commission are not limited in
taking enforcement or other actions for violations not addressed or
for future violations.
This is insufficient to summons any rights
secured by the Fourteenth Amendment.
UST is not precluded from
entering an economic field, nor is it prohibited from completing a
specific job.
Instead, UST only must “treat and dispose” the SBM
in accordance with federal and state standards.
The plaintiffs’ characterization of their claim as one invoking
a fundamental liberty interest is similar to the approach taken in
Lochner
v.
New
York,
198
U.S.
20
45,
64
(1905),
which
is
“now
thoroughly discredited.”
266 (3rd Cir. 1990).
See Lutz v. City of York, 899 F.2d 255,
As a matter of law, the Fourteenth Amendment
has no application to the instant regulation of UST’s conduct while
it is engaged in its business.
See, e.g., Conn, 526 U.S. at 292
(noting that successful due process “cases all deal with a complete
prohibition of the right to engage in a calling, ... not [a] ...
brief interruption”).
As the Supreme Court and other courts make
clear, the due process clause places its focus on prohibition into
an economic field.
In addition, even that right is still “subject
to reasonable governmental regulation.”
Id.
The case before this Court does not involve a prohibition of
entry into an economic field; nor does the Fourteenth Amendment
provide the plaintiffs with a constitutionally-conferred liberty
interest in doing business without governmental oversight.
In
Allocco Recycling, Ltd. v. Doherty, 378 F. Supp.2d 348, (S.D. N.Y.
2005), the district court held:
Plaintiff is not denied the ability to engage in the
transfer-station business because it cannot expand its
operations to process construction debris along with fill
material. It is not wholly prevented from engaging in
its chosen business; rather, it simply complains that the
City regulations impermissibly limit the amount of
business it can do. But the Due Process Clause does not
protect the claimed liberty of maximizing one’s business
or profit merely because it guards against government
prohibition of entry into that business altogether.
Plaintiff therefore has no liberty interest that can
sustain its due process claims.
Id. at 373-74; see also Parate v. Isibor, 868 F.2d 821, 831–32 (6th
Cir.
1989),
noting
that
due
process
21
claims
are
confined
to
situations in which individuals are precluded from entering an
economic field and that, in prior case law, plaintiffs “were denied
an opportunity to enter” a profession.
Id.
The Parate court
distinguished Wilkerson v. Johnson, 699 F.2d 325 (6th Cir. 1983), on
which the plaintiff had relied:
In [Wilkerson], the plaintiff applicants were denied an
opportunity to enter the barbering profession by
operation of state law. See id. at 326-27. Wilkerson,
however, did not involve the application of rules and
regulations to individuals presently engaged in their
chosen profession. See id. at 327. [In] Wilkerson ...
individuals [were precluded] from entering a profession,
and thus, may be distinguished from the present appeal,
which involves the regulation of an individual’s conduct
while engaged in the profession.
Parate, 868 F.2d at 831-32 (emphasis in original). See also Bernard
v. United Twp. High Sch. Dist. No. 30, 5 F.3d 1090, 1092–93 (7th
Cir. 1993)(“But our cases show that the Constitution only protects
this liberty from state actions that threaten to deprive persons of
the right to pursue their chosen occupation.
State actions that
exclude a person from one particular job are not actionable in suits
like Bernard’s that are brought directly under the due process
clause.
It is the liberty to pursue a calling or occupation, and
not the right to a specific job, that is secured by the Fourteenth
Amendment.”)(quotations removed); see also Wedges/Ledges of Cal.
Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 65 (9th Cir. 1994).
The Fourteenth Amendment is not so elastic as to distend its
protection to the unfettered right to operate a business free from
governmental
regulation
—
especially
22
not
when,
as
here,
the
plaintiffs entered a series of agreed orders with MDEQ and failed
to satisfy the conditions of those agreements.
No company enjoys
an unfettered, constitutionally-conferred liberty interest in doing
business
without
governmental
oversight.
Accordingly,
the
plaintiffs have not plausibly pled any cognizable liberty interest
as a matter of law, let alone a “clearly established” one under
which
the
individual
objectively
defendants
unreasonable.
could
Because
be
the
said
to
plaintiffs
have
have
acted
not
demonstrated a clearly established liberty interest that can sustain
a substantive due process claim, dismissal of this claim is proper.
The plaintiffs also fail to demonstrate a substantive due
process violation on the part of the individual defendants as a
matter of law.
Substantive due process claims are not favored.
Indeed, courts routinely proffer that “[s]ubstantive due process,
as a theory for constitutional redress, has in the past fifty years
been disfavored[.]” Colon Medina & Sucesores, Inc. v. Custodio, 964
F.2d 32, 41-42 (1st Cir. 1992); accord, Licari v. Ferruzzi, 22 F.3d
344, 350 (1st Cir. 1994).
In the case sub judice, even were the
Court to assume, arguendo, that the plaintiffs could assert a
cognizable liberty interest, the substantive due process action
still fails.
Because of § 1983’s personal involvement requirement
and the qualified immunity standard, generalized allegations against
MDEQ and/or other MDEQ employees/officials do not suffice.
See,
e.g., Reyes, 168 F.3d at 161 (“‘[P]laintiff [must] support[] his
23
claim with sufficient precision and factual specificity to raise a
genuine issue as to the illegality of defendant’s conduct at the
time of the alleged acts.’”)(quoting Schultea v. Wood, 47 F.3d 1427,
1434).
“Heightened pleading requires allegations of fact focusing
specifically on the conduct of the individual who caused the
plaintiff’s
injury.”
Id.
(citing
Wicks
v.
Mississippi
State
Employment Servs., 41 F.3d 991, 995 (5th Cir. 1995); see also
Douthit, 641 F.2d at 346 (“The plaintiff must establish either that
the defendant supervisory official was personally involved in the
acts causing the deprivation of his constitutional rights or that
a causal connection exists between an act of the official and the
alleged constitutional violation.” (citing Watson v. Interstate Fire
& Casualty Co., 611 F.2d 120 (5th Cir. 1980); Henzel v. Gerstein,
608 F.2d 654 (5th Cir. 1979)).
The allegations that reasonably could be construed as against
defendants Harrell and Bailey are as follows:
* Defendant Bailey had a duty to alert authorities and
the Plaintiffs when he inspected the Yazoo site from
2000-2002 and witnessed the improper designs and
mismanagement of the SBM.
Amended Complaint, ¶ 46.
* Defendant Bailey’s failure to disclose the reality of
the Hydromex operations caused significant and additional
clean-up costs for Plaintiffs.
Id., ¶ 47.
* Plaintiff Williams spoke with
MDEQ to request if he could move
the street to store it until
received or other arrangements
permitting him to comply with
24
Defendant Bailey from
the remaining SBM down
the MDOT funding was
could be made, thus
the Ramsay settlement
agreement.
Id., ¶ 58.
* Defendant Bailey told Plaintiff Williams he would check
to see if the remaining SBM could be moved to a facility
which was less than a mile down the road from the Yazoo
site.
Id., ¶ 59.
* Defendant Harrell directed Defendant Bailey to inform
Plaintiff Williams that he could not store the SBM a mile
down the road and that he needed to get it removed from
the Yazoo site by December 31, 2013.
Id., ¶ 60.
* Plaintiff Williams abided by Defendant Harrell’s
instructions to have the material removed from the Yazoo
site by December of 2013.
Id., ¶ 65.
* Plaintiff UST entered into a contract with a recycling
facility know as and referred to as MGM in Missouri to
recycle the remaining material at the Yazoo site.
Id., ¶ 66.
* Plaintiff Williams sent a letter to Defendant Bailey on
November 18, 2013 of [sic] the shipments of SBM to
Missouri and his intention to have all of the material
removed by December 31, 2013.
Id., ¶ 69.
* Plaintiff Williams had a conversation with Defendant
Bailey and with Attorney Roy Furrh from MDEQ about the
shipments to Missouri and they expressed no concern.
Id., ¶ 70.
* Defendant Harrell began solely making the decisions
regarding UST.
Id., ¶ 74.
* Defendant Harrell testified at a hearing in Case No.
5:08CV218 that he solely made the decision, after
learning that the MDOT project failed to get its funding,
to classify the SBM as hazardous waste.
Id., ¶ 75.
* Defendant Harrell arbitrarily decided to ignore all
prior agreed orders and abused his power toward
25
Plaintiffs.
Id., ¶ 76.
* Defendant Harrell’s arbitrary and deceitful orders to
cease operation violated Plaintiffs’ rights as citizens.
Id., ¶ 77.
* Defendant Bailey spoke to Missouri EPA and informed
them that the SBM was hazardous waste, conduct for which
there was no public benefit.
Id., ¶ 78.
* Defendants made these false statements recklessly and
with knowledge of its [sic] contrary position to prior
agreements and the consequences of said statements.
Id., ¶ 81.
* Defendants sent a cease and desist letter to further
restrict Plaintiff’s administrative rights to object to
MDEQ’s order to stop removing the SBM.
Id., ¶ 93.
* The cease and desist of operations violated Plaintiffs’
due process rights.
Id., ¶ 94.
* Dr. Meiggs[] opined that the MDEQ lab had used their
own manufactured HCI, which created an improper testing
of the material causing unreliable results.
Id., ¶ 97.
* Plaintiff UST’s laboratory was correct in their testing
methods which demonstrated that the treated SBM was nontoxic.
Id., ¶ 98.
* The MDEQ test results are not valid because their
procedures were improperly performed.
Id., ¶ 99.
* Plaintiffs assert that these improperly performed
procedures were done intentionally to serve as a means to
abuse their [sic] power over Plaintiffs.
Id., ¶ 100.
* Defendant Herrell testified that he had never inquired
from the MDEQ lab [about] the problems with the testing
even though he was the laboratory’s direct supervisor.
26
Id., ¶ 101.
* The treated SBM poses no threat to the environment and
Defendant Harrell’s reckless indifference to Plaintiffs
serves no purpose other than an abuse of power.
Id., ¶ 102.
These allegations primarily break into two categories:
(I) Defendants Bailey and Harrell’s insistence that the SBM be
removed from the Yazoo site by December 31, 2013;
(II) Defendant Harrell’s alleged decision to classify the SBM
as hazardous waste.
(I). Removing SBM by December 31, 2013
Removal of the SBM and remediation of the Hydromex site by
December 31, 2013, was an explicit condition of the second agreed
order.
Specifically, the second agreed order amendment was entered
to provide “additional time to [UST] to remediate the [Hydromex]
site.”
Second Amendment, p. 2.
Per the second agreed amendment,
UST was provided until December 31, 2013, to “remediate the site.”
Id., pp. 2-3. Further, the second agreed order mandated that “[a]ny
deviation from this Second Amendment to Agreed Order must be
approved in advance in writing by MDEQ on behalf of the Commission.”
Id., p. 9.
In order to properly state a substantive due process claim, a
plaintiff must establish a “cognizable level of executive abuse of
power ... which shocks the conscience, violates the decencies of
civilized conduct or interferes with rights implicit in the concept
of ordered liberty.”
Brown v. NationsBank Corp., 188 F.3d 579, 591
27
(5th Cir.1999)(internal quotation marks omitted).
no
circumstances
under
which
defendants
Thus, there are
Bailey
and
Harrell’s
instructions for UST to comply with the terms of the second
amendment to the agreed order could be considered a violation of
substantive
due
process,
let
alone
a
established” substantive due process law.
violation
of
“clearly
See id.; Worley Brown,
LLC v. Miss. Dep’t of Archives & History, 2012 WL 1424398, *15-16
(S.D. Miss. Apr. 24, 2012).
(II). Classification of SBM as Waste
Much of the plaintiffs’ complaint against defendant Harrell is
centered on the classification of SBM as “hazardous waste” and the
instruction for UST to cease transporting SBM across state lines.
These allegations do not reach the level of a constitutional
concern.
The plaintiffs allege that the SBM was incorrectly
classified as waste for the first time in or about 2013.
Complaint, ¶ 55.
show otherwise.
Amended
The documents attach to the complaint, however,
For instance, the original agreed order entered in
2003 explicitly categorized SBM as “hazardous waste.”
In 2014, the
plaintiffs entered a third amendment to the agreed order, in which
the SBM was again classified as waste.
The plaintiffs’ allegation
that the SBM was incorrectly classified as waste for the first time
in or about 2013 lacks any support in the record.
The Court notes that, in ruling on a motion to dismiss, it may
rely
on
the
complaint
and
on
the
28
documents
attached
to
the
complaint. Financial Acquisition Partners LP v. Blackwell, 440 F.3d
278, 286 (5th Cir. 2006).
In the event of a conflict between the
attachment and the complaint, the attached document will control.
U.S. ex rel Riley v. St. Luke’s Episcopal Hospital, 355 F. 3d 370,
377 (5th Cir. 2004)(citing Simmons v. Peavy-Welsh Lumber Co., 113
F.2d 812, 813 (5th Cir.), cert. denied, 311 U.S. 685 (1940));
Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F. 2d 1200,
1206 (5th Cir. 1975); Massey v. Merrill Lynch & Co., Inc., 464 F.3d
642,
645
(7th
Cir.
2006)(when
documents
attached
to
complaint
contradict allegations, attachments trump allegations).
The Court further finds that even if the documents did not
control,
the
constitutional
classification
of
dimensions.
The
SBM
as
issue
waste
of
does
whose
not
results
reach
(the
plaintiffs’ or MDEQ’s) were the “right” results as to the SBM’s
level of toxicity cannot create a constitutional issue.
To hold
otherwise would be a radical departure from established federal law,
and would transform garden-variety disputes between an agency
charged with environmental oversight and a private business into a
constitutional issue whenever there is a dispute over environmental
testing results.
See, e.g., Coniston Corp. v. Village of Hoffman
Estates, 844 F.2d 461, 467 (7th Cir. 1988)(noting that “[n]o one
thinks substantive due process should be interpreted so broadly as
to protect landowners against erroneous zoning decisions,” and
finding that the case presented “a garden-variety zoning dispute
29
dressed up in the trappings of constitutional law”); Torjusen, 1995
WL 865479 at *12 (in which the undersigned noted that Section 1983,
even in the context of the outright denial of a license or permit,
“does not guarantee a person the right to bring a federal suit for
denial of due process in every proceeding in which he was denied a
license or permit. If that were the case, every allegedly arbitrary
denial by a town or city of a local license or permit would become
a federal case, swelling our already overburdened federal court
system beyond capacity”).
Courts have consistently found that the Due Process Clause does
not authorize federal courts to sit as appellate courts to review
the correctness of a state agency’s decision.
For example, the
Fifth Circuit, in FM Properties Operating Co. v. City of Austin, 93
F.3d 167, 174 (5th Cir. 1996), explained that wrongly interpreting
or administering state law does not create a federal constitutional
claim under substantive due process.
A legally or factually
incorrect decision is insufficient for a substantive due process
claim.
Id. (“the due process clause does not require a state to
implement its own law correctly, nor does the Constitution insist
that a local government be right.”); Washington v. Glucksberg, 521
U.S. 702, 720 (1997)(recognizing Court should “exercise the utmost
care whenever we are asked to break new ground in [substantive due
process] lest the liberty protected by the Due Process Clause be
subtly transformed into the policy preferences of the Members of
30
this
Court”)(internal
citation
and
quotation
marks
omitted);
Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 488
(1955)(“The day is gone when this Court uses the Due Process Clause
of the Fourteenth Amendment to strike down state laws, regulatory
of business and industrial conditions, because they may be unwise,
improvident,
thought.”)
or
out
of
harmony
with
a
particular
school
of
Because courts are generally reluctant to recognize new
substantive due-process rights, they are particularly reluctant to
do so when the rights derive from a constitutional tort. See, e.g.,
DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189,
202 (1989)(“The Due Process Clause of the Fourteenth Amendment does
not
transform
every
tort
committed
by
a
state
actor
into
a
constitutional violation.”); Daniels v. Williams, 474 U.S.. 327, 332
(1986)(“Our Constitution deals with the large concerns of the
governors and the governed, but it does not purport to supplant
traditional tort law in laying down rules of conduct to regulate
liability for injuries that attend living together in society.”).
It is axiomatic that the United States Constitution does not
require that a local government interpret its own law correctly,
because “[t]he power to decide, to be wrong as well as right on
contestable issues, is both privilege and curse of democracy.”
National Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124,
1127 (7th Cir.), cert. denied, 515 U.S. 1143 (1995).
See also
Vineyard Investments, L.L.C. v. City Of Madison, Miss., 440 F.App’x
31
310, 313 (5th Cir. 2011); Marco Outdoor Advertising v. Regional
Transit Authority, 489 F.3d 669, 672 n.3 (5th Cir. 2007)(“plaintiff
must demonstrate that the abuse of power by the state official
‘shocks the conscience’”)(citing McClendon v. City of Columbia, 305
F.3d 314, 326 (5th Cir. 2002)(quoting County of Sacramento, 523 U.S.
at 846)).
La. 2009).
See also Woodard v. Andrus, 649 F.Supp.2d 496, 504 (W.D.
These long-standing principles are consistent with the
routine rejection of attempts to expand the reach of the substantive
due process doctrine. For instance, the Fifth Circuit has cautioned
that “‘only the most egregious official conduct can be said to be
arbitrary in the constitutional sense.’” McClendon, 305 F.3d at 326
(quoting County of Sacramento, 523 U.S. at 846).
Simply arbitrary
conduct is insufficient; the conduct must be sufficiently arbitrary
as to “shock the conscience.”
To
properly
state
a
Marco, 489 F.3d at 673 n.3.
substantive
due
process
claim,
the
“cognizable level of executive abuse of power is that which ‘shocks
the conscience,’ violates the ‘decencies of civilized conduct’ or
interferes
with
rights
‘implicit
in
the
concept
of
ordered
liberty.’”
Brown v. NationsBank Corp., 188 F.3d 579, 591 (5th Cir.
1999)(quoting Rochin v. California, 342 U.S. 165 (1952)).
This
standard is a demanding one: only “the most egregious official
conduct” qualifies, County of Sacramento, 523 U.S. at 846, and this
is particularly so when the plaintiff seeks merely to transform
purported
common-law
tort
into
32
a
constitutional
claim.
a
In
elaborating on “the constitutional concept of conscience shocking,”
the Supreme Court has “made it clear that the due process guarantee
does not entail a body of constitutional law imposing liability
whenever someone cloaked with state authority causes harm.”
County
of Sacramento, 523 U.S. at 848.
It is important to recognize that arbitrary and capricious “in
the constitutional sense” of substantive due process is utterly
unrelated to the “arbitrary and capricious” review standard employed
by a state court reviewing the correctness of an agency’s decision.
Discussing
what
is
“arbitrary,
or
conscience
shocking,
constitutional sense,” the Supreme Court has espoused:
To this end, for half a century now we have spoken of the
cognizable level of executive abuse of power as that
which shocks the conscience. We first put the test this
way in Rochin v. California, [342 U.S. 165, 172-73
(1952)], where we found the forced pumping of a suspect’s
stomach enough to offend due process as conduct “that
shocks the conscience” and violates the “decencies of
civilized conduct.”
In the intervening years we have
repeatedly adhered to Rochin’s benchmark.
See, e.g.,
Breithaupt v. Abram, 352 U.S. 432, 435, 77 S.Ct. 408,
410, 1 L.Ed.2d 448 (1957)(reiterating that conduct that
“‘shocked the conscience’ and was so ‘brutal’ and
‘offensive’ that it did not comport with traditional
ideas of fair play and decency” would violate substantive
due process); Whitley v. Albers, 475 U.S. 312, 327, 106
S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986)(same); United
States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095,
2101, 95 L.Ed.2d 697 (1987)(“So-called ‘substantive due
process’ prevents the government from engaging in conduct
that ‘shocks the conscience,’ ... or interferes with
rights ‘implicit in the concept of ordered liberty’”)
(quoting Rochin v. California, supra, at 172, 72 S.Ct.,
at 209-210, and Palko v. Connecticut, 302 U.S. 319, 325326, 58 S.Ct. 149, 151-152, 82 L.Ed. 288 (1937)). Most
recently, in Collins v. [City of] Harker Heights,
[Texas], [503 U.S. 115 at 128, 12 S.Ct. 1061 at 1070, 117
33
in
a
L.Ed.2d 261 (1992)] we said again that the substantive
component of the Due Process Clause is violated by
executive action only when it “can properly be
characterized as arbitrary, or conscience shocking, in a
constitutional sense.”
County of Sacramento, 523 U.S. at 846-47.2
Nothing in the plaintiffs’ Amended Complaint concerning the
classification
conscience.”
of
SBM
rises
to
the
level
of
“shocking
the
This is especially true since the plaintiffs have
failed to remediate the Yazoo site for over eleven years, and since
the SBM was labeled as waste in two agreed orders, one in 2003 and
another in 2011.
The characterization of SBM as waste (even
hazardous waste) was clearly not too “conscience shocking” to the
plaintiffs, even in a non-constitutional sense, when they twice
agreed in writing to orders classifying the SBM as waste.
Moreover, even if the SBM ultimately turns out to be non-toxic,
this is not conscience-shocking in a constitutional sense as a
2
The Sixth Circuit has explained that the “arbitrary and
capricious” criteria in the context of a substantive due process
claim regarding a state administrative action “is extremely
narrow.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1221
(6th Cir. 1992). “The use of the term ‘arbitrary and capricious’
in this context causes considerable confusion, because these same
terms are also used to describe the scope of review by state
courts of state administrative action. Therefore, it must be
emphasized that the state court scope of review of a decision of
a state administrative agency is far broader than the federal
scope of review under substantive due process.” Id. “In some
states, a state court may set aside state administrative action
as being ‘arbitrary and capricious’ on the ground, among others,
that it is not supported by substantial evidence. No such ground
may be used by the federal court in reviewing state administrative action in connection with a federal substantive due
process attack, however.” Id.
34
matter of law.
There is a considerable “difference between state
action that deprives an individual of constitutional rights and
state action that is merely tortious or negligent.”
Brown v.
Pennsylvania Dep’t of Health Emergency Med. Servs. Training Inst.,
318 F.3d 473, 480 (3rd Cir. 2003)(citing County of Sacramento, 523
U.S. at 848 (“It should not be surprising that the constitutional
concept of conscience shocking duplicates no traditional category
of common-law fault, but rather points clearly away from liability
or clearly toward it, only at the ends of the tort law’s spectrum
of
culpability.”)).
The
case
law
makes
it
clear
that
the
allegations in the case sub judice are insufficiently egregious to
state a substantive due process claim.
See, e.g., Worley Brown,
2012 WL 1424398 at *15-16 (denying due process claim when the
agency’s decision was “contrary to the evidence” and “incorrectly
decided”).
In this case, there is no plausibly-pled violation of
substantive due process, nor are there any allegations that can
pierce the cloak of qualified immunity.
The plaintiffs may not
simply allege that the Fourteenth Amendment has been violated or
that an action was arbitrary.
Instead, the plaintiffs “must claim
that the defendants committed a constitutional violation under
current law” and “that the defendants’ actions were objectively
unreasonable in light of the law that was clearly established at the
time of the actions complained of.”
As the Fifth Circuit recently held,
35
Atteberry, 430 F.3d at 252-53.
there must be adequate authority at a sufficiently high
level of specificity to put a reasonable official on
notice that his conduct is definitively unlawful. See
[Morgan, 659 F.3d] at 372.
Abstract or general
statements of legal principle untethered to analogous or
near-analogous facts are not sufficient to establish a
right “clearly” in a given context; rather, the inquiry
must focus on whether a right is clearly established as
to the specific facts of the case.
See Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583
(2004).
Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015); see
also Bosarge v. Mississippi Bureau of Narcotics, 796 F.3d 435, 442
(5th Cir. 2015); Reese v. Gray, 2011 WL 302873, *5 (N.D. Miss.
2011)(“‘Under
[the
Harlow]3
standard,
a
defense
of
qualified
immunity may not be rebutted by evidence that the defendant’s
conduct was malicious or otherwise improperly motivated.’”)(quoting
Crawford-El v. Britton, 523 U.S. 574, 588 (1998)).4
Here, the
plaintiffs have not (and cannot) point to any clearly established
federal law under which individual defendants Harrell and/or Bailey
acted objectively unreasonable.
The plaintiffs’ claim thus fails
at this stage.
B. Procedural Due Process
As the name implies, procedural due process is primarily
3
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396.
4
The Court notes that none of the MDEQ orders were entered
into or signed by either of the individual defendants, as
required for a § 1983 action against them. In addition, many of
the allegations in the Amended Complaint are directed at
individuals who are not named defendants in this case. See,
e.g., Amended Complaint, ¶¶ 82, 106-107.
36
concerned with procedures rather than outcomes.
Nevertheless, the
purpose of guaranteeing fair procedures is “not only to ensure
abstract fair play to the individual.”
Fuentes v. Shevin, 407 U.S.
67, 80–81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The procedures are
deployed in protection of particular interests - “life, liberty,
[and] property” - and they serve “to minimize substantively unfair
or mistaken deprivations” of those interests.
Id. at 81.
Thus,
while the procedural aspect of the Due Process Clause does not
categorically bar wrongful deprivations of life, liberty, and
property, it seeks to minimize the frequency of such deprivations
by mandating that all government deprivations be attended by fair
procedures. See, e.g., Woodard v. Andrus, 649 F.Supp.2d 496, 504-05
(W.D. La. 2009); Rathjen v. Litchfield, 878 F.2d 836, 839–40 (5th
Cir. 1989)(“[N]o denial of procedural due process occurs where a
person has failed to utilize the state procedures available to
him.”); Galloway v. Louisiana, 817 F.2d 1154, 1158 (5th Cir. 1987)
(“An employee cannot ignore the process duly extended to him and
later complain that he was not accorded due process.”); Worley
Brown, 2012 WL 1424398 at *14.
Even if a protected liberty interest were at stake in this
case, the plaintiffs cannot establish a procedural due process
violation, because they have either received or chosen to forgo all
the process they purportedly are due. First of all, the complainedof orders are all agreed orders between MDEQ and UST.
37
See Carey v.
Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)
(“Procedural due process rules are meant to protect persons not from
the deprivation, but from the mistaken or unjustified deprivation
of life, liberty, or property.”). Second, if the plaintiffs desired
to challenge a MDEQ letter or any MDEQ position, Mississippi state
law affords them a mechanism to do so.
Specifically, the relevant
state statute provides as follows:
Any interested person shall have the right to request the
commission to call a hearing for the purpose of taking
action in respect to any matter within the jurisdiction
of the commission by making a request therefor in
writing.
Upon receipt of any such request, the
commission shall conduct such investigations as it deems
necessary and may call a special hearing or may schedule
such matter for its next regular meeting or hearing day,
and after such hearings and with all convenient speed and
in any event within thirty (30) days after the conclusion
of such hearing shall take such action on the subject
matter thereof as it may deem appropriate.
Mississippi Code §§ 49-17-35; 49-17-41 (Resource Conservation and
Recovery Act); see also Myrick v. City of Dallas, 810 F.2d 1382,
1388 (5th Cir. 1987)(party may not skip available state postdeprivation procedures and then complain that the process was
inadequate or missing).
It is undisputed that UST could have requested a Commission
hearing, pursuant to the Resource Conservation and Recovery Act,
concerning the sampling differences and the disagreement over any
interpretation or position taken by MDEQ.
In the third agreed
order, the plaintiffs first acknowledged “that [UST] is entitled to
an evidentiary hearing before the Commission pursuant to Mississippi
38
Code Annotated § 49-17-31.”
Third Amendment, ¶ 10.
Following this
explicit acknowledgment in writing, UST “made an informed waiver of
[the] right” to an evidentiary hearing pursuant to § 49-17-35.
Id.
Concerning procedural due process, “the deprivation by state
action of a constitutionally protected interest in ‘life, liberty
or
property’
is
not
in
itself
unconstitutional;
what
is
unconstitutional is the deprivation of such an interest without due
process of law.”
Montgomery v. Mississippi, 498 F.Supp.2d 892, 910
(S.D. Miss. 2007)(citing Parratt v. Taylor, 451 U.S. 527, 537 (1981)
(emphasis in original)). Here, all orders were agreed to, state law
provided the plaintiffs with a mechanism for challenging any MDEQ
action or position, plaintiff UST admitted that it was entitled to
a hearing, and the plaintiffs made an “informed” waiver of the right
to a hearing in writing.
In addition, none of the MDEQ orders were
entered into by either of the individual defendants, as required for
a § 1983 action, and there is no clearly established procedural due
process law under which the individual defendants could have acted
objectively unreasonable. Thus, the plaintiffs have failed to state
a claim for infringement of procedural due process.
In conclusion, the Court has found a variety of reasons why the
federal claims the plaintiffs have brought against defendants
Harrell and Bailey in their individual capacities fail. As a matter
of law, none of the facts alleged by the plaintiffs trigger any
concerns protected by the Dormant Commerce Clause, or identify a
39
liberty interest secured by the Fourteenth Amendment, let alone
demonstrate that defendants Harrell and/or Bailey acted objectively
unreasonable under any “clearly established” federal law.
These
reasons entitle the individual defendants to dismissal, for no
federal law provides an avenue for relief.
Defendants Harrell and
Bailey’s motions to dismiss shall therefore be granted.
PRELIMINARY INJUNCTION
As for the plaintiffs’ motion for preliminary injunction
against MDEQ, it is barred by the Eleventh Amendment.
The Eleventh
Amendment bars all of the plaintiffs’ causes of action asserted
against MDEQ, including the request for a preliminary injunction.
In addition, MDEQ is not a “person” for purposes of 42 U.S.C. §
1983, the statute through which the plaintiffs’ federal claims are
urged, and the Court previously granted MDEQ’s motion to dismiss
based on sovereign immunity (docket entry 60).
The states, arms of
states, and officials acting in their official capacities are not
“persons” within the meaning of § 1983. Will v. Michigan Department
of State Police, 491 U.S. 58, 71 (1989); Davis v. City of Vicksburg,
Miss., 2015 WL 4251008, *2 (S.D. Miss. 2015)(finding that “states
and their arms are not ‘persons’ who can be liable under § 1983.”).
In addition, to the extent that the request for preliminary
injunctive relief might be premised upon state law, it is plainly
barred by Pennhurst State Sch. & Hosp. v. Haldernen, 465 U.S. 89,
104 S.Ct. 900 (“Pennhurst II”).
40
The Court previously entered a Memorandum Opinion and Order
(docket entry 60) denying the plaintiffs injunctive relief against
MDEQ and Harrell and Bailey in their official capacities, and
dismissing state law claims for injunctive relief without prejudice.
The court now denies the plaintiffs injunctive relief against
Harrell and Bailey in their individual capacities as well.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss (docket entry
34) brought by defendant Richard Harrell in his individual capacity
is GRANTED;
FURTHER ORDERED that the Motion to Dismiss (docket entry 36)
brought by defendant Steven Bailey in his individual capacity is
GRANTED;
FURTHER ORDERED that the Motion for Preliminary Injunction
(docket entry 53) brought by plaintiffs U.S. Technology Corporation
and Raymond F. Williams is DENIED.
A Final Judgment incorporating this Memorandum Opinion and
Order, and the Court’s prior Memorandum Opinion and Order (docket
entry 60) shall follow.
SO ORDERED, this the 28th day of July, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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