Cangemi et al v. The United States of America et al

Filing 95

MEMORANDUM & ORDER granting in part and denying in part 71 Motion to Dismiss for Lack of Jurisdiction; The Federal Defendants' motion to dismiss the Amended Complaint (Docket Entry 71) is GRANTED IN PART and DENIED IN PART. First, the FTCA C laims are DISMISSED as against the USACE and Col. Boule. Second, the Taking Claims are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction, and the Court will not transfer the Taking Claims to the Court of Federal Claims because that court does not have jurisdiction. Third, the APA Claim is DISMISSED WITH PREJUDICE. Finally, Counts XIII (injunctive relief) and XIV (declaratory judgment) are DISMISSED WITH PREJUDICE. Thus, as to the Federal Defendants, Plaintiffs' FTCA Claims against the United States are the only claims that move forward. So Ordered by Judge Joanna Seybert on 3/7/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
THOMAS CANGEMI, JODI CANGEMI,
MARIANN COLEMAN, FRANCIS J. DEVITO,
LYNN R. DEVITO, LEON KIRCIK,
ELIZABETH KIRCIK, CAROL C. LANG,
TERRY S. BIENSTOCK, DANIEL
LIVINGSTON, VICTORIA LIVINGSTON,
ROBIN RACANELLI, JAMES E.
RITTERHOFF, GALE H. RITTERHOFF,
ELSIE V. THOMPSON TRUST, JOHN TOMITZ,
and THELMA WEINBERG TRUSTEE OF THE
THELMA WEINBERG REVOCABLE LIVING
TRUST,

MEMORANDUM & ORDER
12-CV-3989(JS)(SIL)

Plaintiffs,
-against–
THE UNITED STATES OF AMERICA; THE
U.S. ARMY CORPS OF ENGINEERS; COL.
JOHN R. BOULE II, individually and
in his official capacity; WILLIAM J.
WILKINSON, individually and in his
Official capacity; and THE TOWN
OF EAST HAMPTON,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Jonathan Halsby Sinnreich, Esq.
Timothy F. Hill, Esq.
Sinnreich Kosakoff & Messina LLP
267 Carleton Ave., Suite 301
Central Islip, New York 11722
For Defendants:
The U.S.A., U.S.
Army Corps of
Engineers, and
Boule

Vincent Lipari, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza, 5th Fl.
Central Islip, New York 11722

Town of East
Hampton:

Anthony F. Cardoso, Esq.
Steven C. Stern, Esq.
Sokoloff Stern LLP
179 Westbury Ave.
Carle Place, New York 11514

SEYBERT, District Judge:
Plaintiffs bring this action against the United States
of America, the U.S. Army Corps of Engineers (“USACE”), and Col.
John R. Boule II, individually and in his official capacity, (“Col.
Boule” and, collectively, the “Federal Defendants”) as well as the
other remaining defendant, the Town of East Hampton, to redress
damage to Plaintiffs’ real property that they allege has been
caused

by

the

Lake

Montauk

Harbor

jetties

(the

“Jetties”).

Currently pending before the Court is the Federal Defendants’
motion to dismiss the Amended Complaint for lack of subject matter
jurisdiction and for failure to state a claim.

(Docket Entry 71.)

For the following reasons, Defendants’ motion is GRANTED IN PART
and DENIED IN PART.
BACKGROUND1
The Court assumes familiarity with the facts of this
case, which are chronicled in the Court’s Memorandum and Order

The facts alleged in the Amended Complaint are presumed to be
true for the purposes of this Memorandum and Order. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 1975, 167
L. Ed. 2d 929 (2007) (“[A] judge ruling on a defendant’s motion
to dismiss a complaint must accept as true all of the factual
allegations contained in the complaint.” (internal quotation
marks and citation omitted)).
1

2

dated March 29, 2013.
188 (E.D.N.Y. 2013).

Cangemi v. United States, 939 F. Supp. 2d
The salient details are discussed below.

Plaintiffs own waterfront property in Montauk, New York
that is allegedly being damaged by the Jetties.
Docket Entry 18, ¶¶ 2, 68-70.)

(Am. Compl.,

As an initial point, private

parties constructed the Jetties in the 1920s.

(Am. Compl. ¶ 41.)

After the Jetties fell into disrepair, the USACE requested that
Congress approve and fund a project for the “repair and extension”
of the Jetties.

(Am. Compl. ¶¶ 41-42.)

Congress approved the

project in 1945, directing the USACE to perform periodic dredging
to maintain a navigational channel for Lake Montauk Harbor.
Compl. ¶¶ 54-55.)

The work was completed in 1968.

(Am.

(May 1995

Project Study Plan, Lipari Decl. Ex. F, Docket Entry 73-6, at 102
(noting that the “[e]ast jetty repair and west jetty repair” was
completed in 1968).)
Decades later, Congress directed the USACE to perform a
planning study on the Jetties through a congressional resolution
in 1991 and again in 2002 (the “1999 Resolution” and the “2002
Resolution,” respectively).

(See 1999 Resolution, Lipari Decl.

Ex. I, Docket Entry 73-9; 2002 Resolution, Lipari Decl. Ex. M,
Docket Entry 73-13.)

The 1999 Resolution required the USACE “to

For the purposes of this Memorandum and Order, the Court will
use the page numbers generated by the Electronic Case Filing
System when referring to the parties’ exhibits.
2

3

determin[e] if further improvements for navigation are advisable.”
(1999 Resolution at 2.)

Similarly, the 2002 resolution directed

the USACE “to determine the need for measures to address storm
damage reduction, shoreline protection, environmental restoration
and protection . . . in the vicinity of Lake Montauk Harbor.”
(2002 Resolution at 2.)

As discussed below, the USACE needed to

perform a feasibility study to determine whether Congress would
fund and authorize a project.

(July 1, 2014 USACE Report, Lipari

Decl. Ex. J, Docket Entry 73-10, at 3 (“Congressional authorization
for construction is based on the feasibility study.”).)
the feasibility study has not yet been completed.

To date,

(See Am. Compl.

¶¶ 80-81; see generally Sinnreich Decl., Docket Entry 80, ¶¶ 3246.)
Essentially, Plaintiffs contend that the Jetties have
caused

accelerated

erosion,

waterfront properties.

which

has

damaged

Plaintiffs’

(See, e.g., Am. Compl. ¶¶ 68-70.)

The

Jetties, they allege, prevent the natural replenishment of sand
onto their property and leave the properties vulnerable to further
damage.

(Am. Compl. ¶¶ 5, 70.)

Plaintiffs allegedly incurred

“millions of dollars in damages and loss and injury to [their]
property.”

(Am. Compl. ¶ 78.)

Plaintiffs assert that the Federal

Defendants and the Town of East Hampton are aware of the “negative
impacts of the Jetties upon plaintiffs’ property . . . [but] have

4

failed to take timely and effective actions to resolve and/or
mitigate the damage.”

(Am. Compl. ¶¶ 80-81.)

Plaintiffs filed this lawsuit on April 17, 2014. (Docket
Entry 1.)

As relevant to the Federal Defendants, the Amended

Complaint asserts eleven causes of actions.

Five counts arise

under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2671 (collectively, the “FTCA Claims”): negligence (Count I),
private

nuisance

appropriation

(Count

of

II),

resource

public
–

interference

(Count VII), and trespass (Count IX).
40.)

nuisance

(Count
with

III),

property

(Am. Compl. ¶¶ 86-112, 131-

Counts V, VI, and X allege that the Federal Defendants

deprived Plaintiffs of, and unlawfully took, their property in
violation of the Constitution (collectively, the “Taking Claims”).
(Am. Compl. ¶¶ 118-126, 141-43.)
Administrative

Procedure

Act

Count XII seeks, under the

(“APA”),

injunctive relief (the “APA Claim”).
Finally,

Counts

XIII

and

XIV

seek

declaratory judgment, respectively.

judicial

review

and

(Am. Compl. ¶¶ 147-51.)
injunctive

relief

and

a

(Am. Compl. ¶¶ 152-63.)

Defendants now move to dismiss the Amended Complaint.
(Docket Entry 71.)

In support, Defendants make three principal

arguments: (1) the FTCA Claims are barred by the discretionary
function exception (the “DFE”), and thus the Court does not have
subject matter jurisdiction to adjudicate them (Defs.’ Br., Docket
Entry 72, at 3-19); (2) under the Tucker Act, the Federal Court of
5

Claims has exclusive jurisdiction over the Taking Claims (Defs.’
Br. at 20-22); and (3) the remaining claims--the APA Claim and
Counts XIII and XIV--fail to state a claim (Defs.’ Br. at 23-26).
In opposition, Plaintiffs primarily attack the DFE,
arguing that the exception does not apply because the USACE
violated

directives

that

were

mandatory,

(Pls.’ Br., Docket Entry 79, at 5-28.)

not

discretionary.

Otherwise, to the extent

that the Amended Complaint fails to state a claim for the FTCA
Claims and all others, Plaintiffs seek permission to file a Second
Amended Complaint, which would “identif[y] more specifically the
statutes,

regulations

plaintiff’s claims.”

and

policies

.

.

.

that

give

rise

to

(Pls.’ Br. at 33-34.)
DISCUSSION

I.

Legal Standards
A.

Legal Standard for a Rule 12(b)(1) Motion
To

plaintiff

survive

must

a

motion

establish

to

subject

dismiss
matter

under

12(b)(1),

jurisdiction.

a

See

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

In

resolving the motion, the Court may consider affidavits and other
materials

beyond

the

pleadings

questions.

See id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d

1006, 1011 (2d Cir. 1986)).

to

resolve

jurisdictional

The Court must accept as true the

factual allegations contained in the Complaint, but it will not
draw

argumentative

inferences

in
6

favor

of

Plaintiffs

because

subject matter jurisdiction must be shown affirmatively.

See

Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (citations omitted).
B.

Legal Standard for a Rule 12(b)(6) Motion
To survive a motion to dismiss, a complaint must plead

“enough facts to state a claim to relief that is plausible on its
face.”

Twombly, 550 U.S. at 570, 127 S. Ct. at 1974.

A claim is

plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Although
the Court must accept all allegations in the Amended Complaint as
true, this tenet is “inapplicable to legal conclusions.”

Id.

Thus, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citation

omitted).

determination

is

a

Ultimately,

the

“context-specific

Court’s

task

that

Id.

plausibility
requires

the

reviewing court to draw on its judicial experience and common
sense.”

Id. at 679, 129 S. Ct. at 1950.
In deciding a motion to dismiss, the Court is generally

confined to “the allegations contained within the four corners of
[the] complaint.”

Pani v. Empire Blue Cross Blue Shield, 152 F.3d

67, 71 (2d Cir. 1998).

However, the Court may consider “any

written instrument attached to [the complaint] as an exhibit,
7

materials incorporated in it by reference, and documents that,
although

not

incorporated

complaint.”

by

reference,

are

integral

to

the

Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)

(internal quotation marks and citation omitted).
II.

The FTCA Claims
A.

Proper Defendants
As an initial matter, the United States is the only

proper defendant for the FTCA Claims. See 28 U.S.C. §§ 1346(b)(1),
2679(b)(1).
United

Indeed, the FTCA “authorizes suits only against the

States

and

not

against

federal

agencies

officials acting in their official capacities.”

and

federal

See, e.g., Barnes

v. United States, No. 00-CV-3544, 2004 WL 957985, at *2 (E.D.N.Y.
Apr. 12, 2004) (citations omitted).

Thus, the FTCA Claims are

DISMISSED as against the USACE and Col. Boule.
B.

Discretionary Function Exception
The Federal Defendants argue that the FTCA Claims must

be dismissed against the United States for lack of subject matter
jurisdiction under the DFE.
§ 2680.

(Defs.’ Br. at 4-19); see 28 U.S.C.

The Court disagrees.
1.

Separation of Powers

As a preliminary matter, Plaintiffs request that the
Court compel the USACE to take action:
As far as anyone can perceive, the project
continues
to
flounder
in
a
cycle
of
negotiations and bureaucratic minutiae and
8

will continue to do so unless and until this
Court compels the USACE to take final and
effective action to fulfill the Congressional
mandate imposed upon it in 1991 to complete
its study and fix the problem.
(Sinnreich Decl. ¶ 46 (internal quotation marks omitted; emphasis
added).)

That request is denied on two grounds.

First, under the

FTCA, Plaintiffs are entitled only to money damages, not injunctive
relief.

See

Rufu

v.

United

States,

876

F.

Supp.

400,

406

(E.D.N.Y. 1994) (“The only form of relief provided in the Federal
Tort Claims Act is money damages.”).

Second, as discussed further

below, Plaintiffs’ request is barred by the separation of powers
doctrine.
Separation of powers mandates that “one branch of the
Government
another.”

may

not

intrude

upon

the

central

prerogatives

of

Loving v. United States, 517 U.S. 748, 757, 116 S. Ct.

1737, 1743, 135 L. Ed. 2d 36 (1996).

As “[t]he wellspring of the

discretionary function is the doctrine of separation of powers,”
In re Joint E. & S. Dists. Asbestos Litig., 891 F.2d 31, 35 (2d
Cir.

1989),

Congress.

this

Court

cannot

decide

questions

reserved

for

In re World Trade Ctr. Disaster Site Litig., 521 F.3d

169, 192 (2d Cir. 2008) (“[T]he discretionary function exception
serves to protect the principles embodied in the separation of
powers doctrine by keeping the judiciary from deciding questions
consigned

to

the

executive

and

legislative

branches

of

the

government.” (internal quotation marks and citations omitted)).
9

Thus, the decision to approve a USACE project is for Congress, not
the judiciary.

See Cty. of Vernon v. United States, 933 F.2d 532,

535 (7th Cir. 1991); see also State of Okla. v. Guy F. Atkinson
Co., 313 U.S. 508, 527, 61 S. Ct. 1050, 1060, 85 L. Ed. 2d 1487
(1941)

(“Such

questions

of

effectiveness

matters
policy.
of

a

raise
They

not
relate

particular

constitutional
to

project.

the

issues

but

need,

and

wisdom,
They

are

therefore

questions for the Congress[,] not the courts.”).3
“Congress directs the [USACE] through authorizations,
appropriations,

and

oversight

of

projects, and other activities.”
3.)

its

studies,

construction

(July 1, 2014 USACE Report at

USACE activities proceed with the following process:
Standard Project Development.
The standard
process for a [USACE] project requires two
separate congressional authorizations--one
for investigation and one for construction-as well as appropriations. The investigation
phase starts with Congress authorizing a
study; if it is funded, the [USACE] conducts
an initial reconnaissance study followed by a
more
detailed
feasibility
study.
Congressional authorization for construction
is based on the feasibility study.

Various circuits have repeated this refrain. See, e.g.,
Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29, 35
(3rd Cir. 1976); United States v. White, 869 F.2d 822, 829 (5th
Cir. 1989); Derryberry v. Tennessee Valley Auth., 182 F.3d 916
(Table), 1999 WL 519323, at *2 (6th Cir. 1999); Taylor Bay
Protective Ass’n v. Adm’r, U.S. E.P.A., 884 F.2d 1073, 1080 (8th
Cir. 1989); Guerrero v. Clinton, 157 F.3d 1190, 1195 (9th Cir.
1998); United States v. Erves, 880 F.2d 376, 380 (11th Cir.
1989); Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288,
318-19 (D.C. Cir. 1998).
3

10

(July 1, 2014 USACE Report at 3); see also 33 U.S.C. § 2282(a)(1)
(requiring “specific authorization by Congress” for “any water
resources project-related study”).

In sum, the Court will not

direct the USACE to complete the project.
at 406.

See Rufu, 876 F. Supp.

The Court must now analyze whether the DFE applies.
2.

The Discretionary Function Exception

Generally, the FTCA has waived sovereign immunity for
any claims against the United States for recovery:
for injury or loss of property, or personal
injury or death caused by the negligent or
wrongful act or omission of any employee of
the Government while acting within the scope
of
his
office
or
employment,
under
circumstances where the United States, if a
private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).

One exception to this waiver, however, is

the DFE, which bars “[a]ny claim

. . . based upon the exercise or

performance or the failure to exercise or perform a discretionary
function.”

28 U.S.C. § 2680(a); accord 28 U.S.C. §§ 1346(b)(1).

The purpose of this exception is to balance “Congress’ willingness
to impose tort liability upon the United States and its desire to
protect certain governmental activities from exposure to suit by
private individuals.” United States v. S.A. Empresa de Viaco Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S. Ct. 2755,
2762, 81 L. Ed. 2d 660 (1984).

In keeping with Congress’s intent,

“‘the FTCA, as a remedial statute, should be construed liberally,
11

and its exceptions should be read narrowly.’”

Cohen v. United

States, No. 98-CV-2604, 2004 WL 502924, at *7 (E.D.N.Y. Jan. 29,
2004) (quoting O’Toole v. United States, 295 F.3d 1029, 1037 (9th
Cir. 2002)); see Gotha v. United States, 115 F.3d 176, 179 (3d
Cir. 1999) (“[I]f the word ‘discretionary’ is given a broad
construction, it could almost completely nullify the goal of the
[FTCA].” (internal quotation marks in original)).
Plaintiffs bear the initial burden of proving that their
claims fall outside the scope of the DFE.
States, 713 F.3d 159, 162 (2d Cir. 2013).

Molchatsky v. United
If the DFE applies, the

Court is deprived of subject matter jurisdiction, and the case
must be dismissed.
1235

n.5

(2d

Cir.

See Caban v. United States, 671 F.2d 1230,
1982)

(citations

omitted);

FED.

R.

CIV.

P. 12(b)(1).
Through a pair of cases, the Supreme Court articulated
a two-prong test to assess whether the DFE applies: Berkovitz v.
United States, 486 U.S. 531, 536-37, 108 S. Ct. 1954, 1958-59, 100
L. Ed. 2d 531 (1988) and United States v. Gaubert, 499 U.S. 315,
322-23, 111 S. Ct. 1267, 1273-74, 113 L. Ed. 2d 335 (1991).

As

the Second Circuit summarized, the two requirements are as follows:
“(1) the acts alleged to be negligent must be discretionary, in
that they involve an element of judgment or choice and are not
compelled by statute or regulation, and (2) the judgment or choice
in question must be grounded in considerations of public policy or
12

susceptible to policy analysis.”

Coulthurst v. United States, 214

F.3d

(internal

106,

109

(2d

Cir.

2000)

quotation

marks

and

citations omitted).
This Court’s analysis begins and ends with the first
prong.4

Simply stated, an act is discretionary if the employee’s

conduct is “the product of judgment or choice.”

See Berkovitz,

486 U.S. at 536, 108 S. Ct. at 1959. On the other hand, an employee
has no discretion “when a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow” and thus “the employee has no rightful option but to adhere
to the directive.”

Id., 108 S. Ct. at 1958-59.

The Court notes, however, that the challenged action is either
grounded in policy concerns or, at the very least, susceptible
to policy analysis. Gaubert, 499 U.S. at 324-25, 111 S. Ct. at
1274-75; see also In re Joint E. & S. Dists. Asbestos Litig.,
891 F.2d at 37 (“[I]t is unimportant whether the government
actually balanced economic, social, and political concerns in
reaching its decision.”). One of the primary purposes of the
federal improvements was to provide a safe harbor for commercial
vessels, sport-fishing vessels, and recreational crafts. (H.R.
Doc. No. 369, Lipari Decl. Ex. C, Docket Entry 73-3, at 3, ¶ 3;
see Lipari Decl., Docket Entry 73, ¶ 36.) The federal
improvements also provided commercial benefits because
commercial fishermen, with a safe harbor, could operate yearround without the need to transfer their activities during the
winter. (H.R. Doc. No. 369 at 19, ¶ 63 (“These fishermen are
handicapped, particularly during the winter months, due to the
unprotected nature of Fort Pond Bay.”).) Moreover, Congress
specifically authorized the USACE “to determine the need for
measures to address storm damage reduction, shoreline
protection, environmental restoration and protection and other
allied purposes in the vicinity of Lake Montauk Harbor, East
Hampton, New York.” (2002 Resolution, at 2.)
4

13

This Court has already recognized that the USACE has
broad discretion in managing any water resources-related project.
See DeVito v. United States, No. 95-CV-2349, 1997 WL 1038120, at
*10 (E.D.N.Y. 1997), R&R adopted by, 12 F. Supp. 2d 269 (E.D.N.Y.
1998).

Indeed, Congress has delegated this discretionary duty to

the USACE, in part, through Title 33, Section 1 of the United
States Code, which spell out the USACE’s duties:
It shall be the duty of the Secretary of the
Army to prescribe such regulations for the
use, administration, and navigation of the
navigable waters of the United States as in
his judgment the public necessity may require
for the protection of life and property, or of
operations of the United States in channel
improvement . . . .
33 U.S.C. § 1 (emphasis added).

Thus, “Congress . . . has given

the [USACE] broad discretion to manage its navigational civil
works.”

Slappey v. United States Army Corps. of Engineers, 571 F.

App’x 855, 858 (11th Cir. 2014)
Without a congressional directive, Plaintiffs claim that
the USACE violated various regulations and guidelines: (1) USACE
Regulation ER 1105-2-100, Section 4-1(a)(2); (2) Water Resources
Development Act of 2007; (3) project “milestones;” (4) Section 111
of the River and Harbor Act of 1968; (5) 3 X 3 X 3 Paradigm; and
(6) Feasibility Cost Sharing Agreement (the “FCSA”).

(Pls.’ Br.

at 14-20); accord Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958
(“[T]he discretionary function exception will not apply when a

14

federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow.”).5

The Court will

address each one in turn.
Plaintiffs’

first

argument--that

USACE

regulations

required the feasibility study to be completed within thirty-six
months--is meritless.

(Pls.’ Br. at 14-15.)

Section 4-1(a)(2) of

the USACE Regulation provides that “[t]he objective of feasibility
studies

is

to

investigate

and

recommend

solutions

to

water

resources problems. . . . Typical studies should be completed in
18-36 months.”

(USACE Regulation ER 1105-2-100, Sinnreich Decl.

Ex. 29, Docket Entry 80-25, at 2 (emphasis added).)

Of course, a

“typical” study does not mean every study, nor does the word
“should” issue a mandatory command.

See United States v. Maria,

186 F.3d 65, 70 (2d Cir. 1999) (“[T]he common meaning of ‘should’
suggests or recommends a course of action . . . .”).
The next argument offered by Plaintiffs--that the USACE
violated the Water Resources Development Act of 2007 by failing to
complete the feasibility studies within two or four years--is
likewise without merit. (Pls.’ Br. at 15-16.) The Water Resources
Development Act of 2007 provides, in pertinent part:

Although the Amended Complaint does not discuss all of these
regulations and guidelines, the Court is permitted to review
evidence outside the complaint to determine whether the Court
has subject matter jurisdiction. See Makarova, 201 F.3d at 113
(citing Kamen, 791 F.2d at 1011).
5

15

The Chief of Engineers shall establish, to the
extent practicable, under paragraph (1)
benchmark goals for completion of feasibility
studies for water resources projects generally
within 2 years. In the case of feasibility
studies that the Chief of Engineers determines
may require additional time based on the
project type, size, cost, or complexity, the
benchmark goal for completion shall be
generally within 4 years.
33 U.S.C. § 2282a(c)(2) (emphasis added).

Courts in this Circuit

and elsewhere have determined that the phrase “to the extent
practicable” or its derivatives do not constitute a prescribed
course of action.

See, e.g., DeVito, 1997 WL 1038120 at *7

(finding that a provision requiring compliance “to the maximum
extent practicable” provided “some degree of latitude” and thus
was not an “absolute mandate”); Rosebush v. United States, 119
F.3d

438,

442

(6th

Cir.

1997)

(“Decisions

concerning

what

constitutes ‘practicable’ require the exercise of discretion which
is protected by FTCA § 2680(a).” (internal quotation marks in
original)); Aragon v. United States, 146 F.3d 819, 824 (“‘As may
be practicable’ is a prime example of discretionary language, which
gave federal agencies a choice or judgment on what action to take,
if any.” (internal quotation marks and emphasis in original;
alteration omitted)).
Plaintiffs also claim that certain project “milestones”
provide a mandatory timeline to complete a feasibility study.
(Pls.’ Br. at 17-19.)

But none of these milestones appear to

16

contain any provisions that make the proposed completion dates
mandatory.

(See, e.g., May 1995 Project Study Plan; Aug. 2002

Project Mgmt. Plan, Sinnreich Decl. Ex. 14, Docket Entry 80-12, at
3.)
Nor is there merit to Plaintiffs’ argument concerning
Section 111 of the River and Harbor Act of 1968.
19-20.)

(Pls.’ Br. at

Rather, the Court embraces the insights articulated in

Save the Dunes Council v. Alexander, in which the Seventh Circuit
analyzed Section 111’s applicable statute--33 U.S.C. § 426i--to
determine whether it authorized discretionary actions.
158, 161 (7th Cir. 1978).

584 F.2d

Ultimately, the court determined that

“the language of [§] 426i and the congressional intent in enactment
grant and authorize only discretionary decision of action or nonaction.”

Id. at 165.

The Court follows the Seventh Circuit’s

lead and finds that Section 111 is discretionary, not mandatory.
But the Court is persuaded that the 3 X 3 X 3 Paradigm
and the FCSA provide a “prescribe[d] . . . course of action.”
Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958;
17, 19).

(Pls.’ Br. at 16-

First, under the 3 X 3 X 3 Paradigm, all feasibility

studies must be completed within three years, cost no more than $3
million, and require three levels of review by the vertical team.
(Feb. 8, 2012 Mem., Sinnreich Decl. Ex. 27, Docket Entry 80-24, at
4-5, ¶¶ 5(a)(i)-(ii).)

The 3 X 3 X 3 Paradigm provides, in

relevant part, the following:
17

5. Conduct of Ongoing Feasibility Studies –
Section 2033(c) of the Water Resources
Development Act of 2007 directs that the
benchmark
goal
for
feasibility
study
completion be within 2 years, or generally up
to 4 years subject to the Chief determining
that the additional time is required due to
the project type, size, cost, or complexity.
Assuming adequate and timely appropriation of
funding, these requirements are consistent
with the principles of the new Planning
Paradigm and with our current Planning
Guidance (Par 4-1a(2) of ER 1105-2-100) which
states that typical feasibility studies should
be completed in 18-36 months. Therefore, the
following changes will be applied to all
feasibility studies that have not reached a
Feasibility Scoping Meeting (FSM) by 31
December 2011:
a. All feasibility studies will follow a
3x3x3 rule and will be completed in a
target goal of 18 months but no more than
three years; cost no greater than $3M and
a reasonable report size.
(Feb. 8, 2012 Mem. at 4 (emphasis added).)

As the Federal

Defendants correctly point out, the 3 X 3 X 3 Paradigm is designed
to be consistent with the Water Resources Development Act of 2007
and USACE Regulation ER 1105-2-100, Section 4-1(a)(2)--both of
which do not issue mandatory timelines.
Entry 85, at 16.)

(Defs.’ Reply Br., Docket

But in the very last sentence of Section 5(a),

the 3 X 3 X 3 Paradigm unambiguously states that if a Feasibility
Scoping Meeting was not conducted by December 31, 2011, “[a]ll
feasibility studies . . . will be completed in a target goal of 18
months but no more than three years . . . . .”
at 4.)

(Feb. 8, 2012 Mem.

Based on the record, the Court does not see that the
18

Federal Defendants reached a Feasibility Scoping Meeting during
the applicable timeframe.

Thus, since the memorandum is dated

February 8, 2012, the Federal Defendants were required to complete
the feasibility study by February 8, 2015, the three-year outer
limit.

By doing so, the Amended Complaint and Plaintiffs’ outside

evidence plausibly allege that the Federal Defendants violated a
mandatory directive.
Moreover, the FCSA provides that “[t]he Government,
using funds and in-kind services provided by the State and funds
appropriated

by

the

Congress

of

the

United

States,

shall

expeditiously prosecute and complete the [feasibility] Study.”
(FCSA, Lipari Decl. Ex. N, Docket Entry 73-14, at 4, Article II.
A.)

The operative word here is “shall.”

explained

in

Maria,

“the

ordinary

As the Second Circuit

understanding

describes a course of action that is mandatory.”
(internal

quotation

marks

in

original).

of

‘shall’

186 F.3d at 70

Thus,

the

Federal

Defendants’ motion to dismiss is DENIED as to the FTCA Claims
against the United States.
III. The Taking Claims
The Taking Claims assert that the Federal Defendants:
(1) “deprived plaintiffs of their property without due process of
law,” (Am. Compl. ¶ 119); (2) “treated plaintiffs differently than
. . . similarly situated” waterfront landowners, (Am. Compl.
¶¶ 122-23); and (3) thus, caused “an unlawful taking of property
19

for which plaintiffs are entitled to just compensation under the
Fifth and Fourteenth Amendments to the United States Constitution”
(Am Compl. ¶ 142).
million.
A.

All three counts seek damages in excess of $25

(Am. Compl. ¶¶ 120, 126, 143.)
Sovereign Immunity
To

the

extent

that

the

Taking

Claims

assert

constitutional tort claims, they are barred by sovereign immunity.
Absent a waiver, sovereign immunity insulates the United States
and its agencies from suit.

Dotson v. Griesa, 398 F.3d 156, 177

(2d Cir. 2005) (citations omitted).

The United States has not

waived its sovereign immunity for any constitutional tort claims
against itself or its agencies.

(Defs.’ Br. at 20 (citing Castro

v. United States, 34 F.3d 106, 110 (2d Cir. 1994))).

“Because

sovereign immunity is jurisdictional in nature,” these claims
would be dismissed for lack of subject matter jurisdiction.
Hollman

v.

Lindsay,

No.

08-CV-1417,

2009

WL

3112076,

at

See
*8

(E.D.N.Y. Sept. 25, 2009).
B.

The Tucker Act
But even if the Taking Claims assert non-constitutional

tort claims, they must also be dismissed for lack of subject matter
jurisdiction.

The Tucker Act vests the Unites States Court of

Federal Claims with exclusive jurisdiction over non-tort claims
seeking more than $10,000 in damages:

20

The United States Court of Federal Claims
shall have jurisdiction to render judgment
upon any claim against the United States
founded either upon the Constitution, or any
Act of Congress or any regulation of an
executive department, or upon any express or
implied contract with the United States, or
for liquidated or unliquidated damages in
cases not sounding in tort.
28 U.S.C. § 1491(a); Bang Shun Lin v. Napolitano, No. 12-CV-5951,
2013 WL 866506, at *1 (E.D.N.Y. Mar. 8, 2013) (“Since plaintiffs
seek more than $10,000 in damages, exclusive jurisdiction lies in
the Court of Federal Claims under the Tucker Act.”).

Here, all

three counts of the Taking Claims seek well over $10,000 in
damages.

(Am. Compl. ¶¶ 120, 126, 143.)

Thus, as to the United

States and the USACE, the Taking Claims are DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction.

See JetBlue

Airways Corp. v. CopyTele Inc., No. 15-CV-0086, 2015 WL 6161774,
at *1 (2d Cir. Oct. 21, 2015) (“‘Article III deprives federal
courts of the power to dismiss a case with prejudice where federal
subject matter jurisdiction does not exist.’”) (quoting Hernandez
v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)).
Anticipating the Court’s ruling, Plaintiffs request that
the Court transfer the Taking Claims against the United States to
the Court of Federal Claims. (Pls.’ Br. at 32-33.) The applicable
statute provides that:
[t]he United States Court of Federal Claims
shall not have jurisdiction of any claim for
or in respect to which the plaintiff or his
21

assignee has pending in any other court any
suit or process against the United States or
any person who, at the time when the cause of
action alleged in such suit or process arose,
was, in respect thereto, acting or professing
to act, directly or indirectly under the
authority of the United States.
28 U.S.C. § 1500.

The purpose of the statute was “to prevent the

United States from having to litigate and defend against the same
claim in [two] courts.”

Harbuck v. United States, 378 F.3d 1324,

1328 (Fed. Cir. 2004).

The Court of Federal Claims has no

jurisdiction to hear the suit “if the same claim is pending in
another court at the time the complaint is filed in the Claims
Court.”

UNR Indus., Inc. v. United States, 962 F.2d 1013, 1021

(Fed. Cir. 1992).

As the Federal Circuit clarified, “two lawsuits

involve the same claim if they are based on the same operative
facts.”

Id. (internal quotation marks omitted).

Here, the FTCA

Claims, the Taking Claims, and the APA Claim arise out of the same
allegation--that

the

Federal

Defendants

were

aware

of

the

“negative impacts of the Jetties upon plaintiffs’ property . . .
[but] have failed to take timely and effective actions to resolve
and/or mitigate the damage.”

(Am. Compl. ¶¶ 80-81.)

Thus, the

Court will not transfer the Taking Claims because the Court of
Federal Claims does not have jurisdiction.
C.

Individual Liability under Section 1983
To the extent that the Taking Claims rely on individual

liability under Section 1983, they must be dismissed against Col.
22

Boule.

“[A] Section 1983 claim does not exist against federal

agents because they are not state actors for purposes of Section
1983.”

Faison v. Maccarone, No. 11-CV-0137, 2012 WL 681812, at

*11 (E.D.N.Y. Mar. 1, 2012). Rather, allegations that a government
official violated the Constitution are properly brought through a
claim under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d
619 (1971).

Accord Iqbal, 556 U.S. at 676, 129 S. Ct. at 1948 (To

state a Bivens claim, “a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions,
has violated the Constitution.”). But even if this Court construed
the claim under Bivens, it still fails.

The Amended Complaint

lacks any allegations that Col. Boule was personally involved in
any constitutional deprivation.

(See generally Am. Compl.)

In

fact, the Amended Complaint only references Col. Boule once--by
identifying him as a Commander of the USACE.

(Am. Compl. ¶ 27.)

Thus, as to Col. Boule, the Taking Claims are DISMISSED.
IV.

The APA Claim
Through the APA Claim, Plaintiffs seek judicial review

that the USACE’s actions were “arbitrary, capricious and not in
accordance with law.”

(Am. Compl. ¶ 149.)

Plaintiffs contend

that the USACE “cause[d] and contribute[d] to the maintenance of
an ongoing nuisance.”
the

APA

entitles

(Am. Compl. ¶ 150.)

them

to

a

“mandatory
23

Plaintiffs argue that
permanent

injunction”

ordering the USACE “to abate, mitigate, and permanently remedy and
prevent

the

further

destructive

impact

of

the

Jetties

on

plaintiffs’ properties and the public beaches and foreshore.” (Am.
Compl. ¶ 151.)
Plaintiffs assert that the United States has waived
sovereign immunity under the APA.

(Pls.’ Br. at 29-32.)

Not so.

The scope of the waiver under the APA is limited to equitable
relief.

5 U.S.C. § 702 (“[A] claim that an agency or an officer

or employee thereof acted or failed to act in an official capacity
or under color of legal authority shall not be dismissed nor relief
therein be denied on the ground that it is against the United
States.”);

see

also

5

U.S.C.

§

706(a)(1)

(providing

that

a

reviewing court shall “compel agency action unlawfully withheld or
unreasonably delayed”). By contrast, “[t]he FTCA limits its waiver
of sovereign immunity to plaintiffs seeking monetary relief.”
Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 119 (D. Conn. 2010).
Where, as here, a plaintiff’s APA claim arises under the
FTCA, the APA is inapplicable.

Beale v. Dep’t of Justice, No. 06-

CV-2186, 2007 WL 327465, at *6-7 (D.N.J. 2007) (“[A]lthough the
[APA]

generally

waives

the

United

States’

immunity

for

‘nonstatutory’ equitable actions . . . Plaintiffs’ claims are
statutorily derived from the FTCA and thus, the [APA] is not
applicable” (internal quotation marks in original); see also Smith
v. Potter, 187 F. Supp. 2d 93, 98 (S.D.N.Y. 2001) (“Congress has
24

not waived the government’s sovereign immunity for tort claims,
like the plaintiffs’ public nuisance claim, that seek injunctive
relief[, which] is not appropriate based on a public nuisance
theory.”).

Counts II and III of the FTCA Claims are based on a

private and public nuisance theory, respectively.
¶¶ 100-112.)

(See Am. Compl.

The APA Claim is based on those same theories, as it

discusses how the USACE’s “acts and failures to act cause[d] and
contribute[d] to the maintenance of an ongoing nuisance”--that is,
“the further destructive impact of the Jetties on plaintiffs’
[private] properties and the public beaches and foreshore.”
Compl. ¶¶ 150-51.)

(Am.

Thus, since the APA Claim is statutorily

derived from the FTCA Claims, it is DISMISSED WITH PREJUDICE.6

Alternatively, Plaintiffs fail to state a claim against the
USACE. “[A] claim under § 706(1) can proceed only where a
plaintiff asserts that an agency failed to take a discrete
agency action that it is required to take.” Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64, 124 S. Ct. 2373, 2379, 159
L. Ed. 2d 137 (2004) (emphasis in original).
6

Plaintiffs’ only authority in the Amended Complaint--that
“Section 111 of the Rivers and Harbors Act of 1968 authorizes
the Secretary of the Army to investigate, study, and construct
protects for the prevention or mitigation of shore damages
attributable to Federal navigation works”--is unpersuasive.
(Am. Compl. ¶ 82 (internal quotation marks omitted).) As noted
above, supra 17-18, the Court embraces the reasoning of the
Seventh Circuit in Save the Dunes Council, which determined that
Section 111 authorizes a discretionary decision. 584 F.2d at
165. Thus, the Amended Complaint does not allege that the USACE
failed to take a requested course of action. Even if Plaintiffs
grounded their claim based on the USACE’s alleged delay in
failing to act,” that argument would fail because “a delay
cannot be unreasonable with respect to action that is not
required.” Norton, 542 U.S. at 63 n.1, 124 S. Ct. at 2379.
25

V.

Injunctive Relief and Declaratory Judgment
The Amended Complaint asserts separate “counts” against

the

Federal

judgment.
stated,

Defendants

for

injunctive

(Am. Compl. ¶¶ 152-63.)

injunctive

and

and

declaratory

But as this Court previously

declaratory

separate causes of actions.”

relief

relief

are

remedies,

“not

Cangemi, 939 F. Supp. 2d at 196

(citing In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726,
731 (2d Cir. 1993)).

Thus, Counts XIII (injunctive relief) and

XIV (declaratory judgment) are DISMISSED WITH PREJUDICE.
VI.

Leave to Amend
Although the Court’s general practice is to grant leave

to amend the complaint when granting a motion to dismiss, “the
district court has the discretion to deny leave to amend where
there is no indication from a liberal reading of the complaint
that a valid claim might be stated.”

Hayden v. County of Nassau,

180 F.3d 42, 53 (2d Cir. 1999); Perri v. Bloomberg, No. 11-CV2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012).
finds

that

(injunctive

leave

to

relief)

replead
and

XIV

the

APA

Claim

(declaratory

and

The Court

Counts

judgment)

XIII

would

be

futile, and thus, leave to replead is denied.
CONCLUSION
The Federal Defendants’ motion to dismiss the Amended
Complaint (Docket Entry 71) is GRANTED IN PART and DENIED IN PART.
First, the FTCA Claims are DISMISSED as against the USACE and Col.
26

Boule.

Second, the Taking Claims are DISMISSED WITHOUT PREJUDICE

for lack of subject matter jurisdiction, and the Court will not
transfer the Taking Claims to the Court of Federal Claims because
that court does not have jurisdiction.
DISMISSED
relief)

WITH
and

PREJUDICE.

PREJUDICE.

XIV

Finally,

(declaratory

Third, the APA Claim is
Counts

judgment)

are

XIII

(injunctive

DISMISSED

WITH

Thus, as to the Federal Defendants, Plaintiffs’ FTCA

Claims against the United States are the only claims that move
forward.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
7 , 2016
Central Islip, New York

27