Murray Energy Corporation et al v. Administrator of Environmental Protection Agency

Filing 40

ORDER DENYING MOTION: Denying 34 MOTION to Dismiss the Complaint and MOTION to Strike Prayer for Injunctive Relief filed by Administrator of Environmental Protection Agency. Signed by Chief Judge John Preston Bailey on 9/16/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling

MURRAY ENERGY CORPORATION,
MURRAY AMERICAN ENERGY, INC.,
THE AMERICAN COAL COMPANY,
AMERICAN ENERGY CORPORATION,
THE HARRISON COUNTY COAL COMPANY,
KENAMERICAN RESOURCES, INC., THE
MARION COUNTY COAL COMPANY, THE
MARSHALL COUNTY COAL COMPANY,
THE MONONGALIA COUNTY COAL
COMPANY, OHIOAMERICAN ENERGY
INC., THE OHIO COUNTY COAL COMPANY,
and UTAHAMERICAN ENERGY, INC.,
Plaintiffs,
v.

Civil Action No. 5:14-CV-39
Judge Bailey

GINA McCARTHY, Administrator,
United States Environmental Protection
Agency, in her official capacity,
Defendant.

ORDER DENYING MOTION
Pending before this Court is Defendant’s Motion to Dismiss the Complaint and
Motion to Strike Prayer for Injunctive Relief [Doc. 34]. In the Motion, the defendant moves
to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1), and, in the alternative, moves to strike paragraph (c) of the plaintiffs’ prayer for
relief, requesting injunctive relief, pursuant to Fed. R. Civ. P. 12(f). The Motion has been
fully briefed and is ripe for decision.

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This action centers around § 321(a) of the Clean Air Act, 42 U.S.C. § 7621(a). This
statutory provision provides:
The Administrator shall conduct continuing evaluations of potential loss or
shifts of employment which may result from the administration or
enforcement of the provision of [the Clean Air Act] and applicable
implementation plans, including where appropriate, investigating threatened
plant closures or reductions in employment allegedly resulting from such
administration or enforcement.
42 U.S.C. § 7621(a) (brackets added).
In her Motion, the Administrator argues that this Court is without subject matter
jurisdiction to hear this case because the plaintiffs have not articulated a sufficient statutory
waiver of the Government’s sovereign immunity. This, she contends, is because the
statute upon which the plaintiffs rely is discretionary and § 321(a) does not contain a date
certain for action by the Administrator.
“As a sovereign, the United States is immune from all suits against it absent an
express waiver of its immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941).
All waivers of sovereign immunity must be ‘strictly construed . . . in favor of the sovereign.’
Lane v. Pena, 518 U.S. 187, 192 (1996). For that reason, it is the plaintiff's burden to show
that an unequivocal waiver of sovereign immunity exists and that none of the statute's
waiver exceptions apply to his particular claim. Williams v. United States, 50 F.3d 299,
304 (4th Cir. 1995). If the plaintiff fails to meet this burden, then the claim must be
dismissed. Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001).” Welch v. United

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States, 409 F.3d 646, 650-51 (4th Cir. 2005).
In this case, the plaintiffs assert jurisdiction under § 304 of the Clean Air Act, 42
U.S.C. § 7604, which provides in pertinent part:
Except as provided in subsection (b) of this section [notice requirements],
any person may commence a civil action on his own behalf - ******
(2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this chapter which is not
discretionary with the Administrator . . .
******
The district courts shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, . . . to order the Administrator
to perform such act or duty, as the case may be. . ..
42 U.S.C. § 7604(a).
Accordingly, the “substantive issue in this case is one of statutory construction,
specifically whether the [Clean Air Act] imposes a discretionary or non-discretionary duty
on the EPA Administrator.” Monongahela Power Co. v. Reilly, 980 F.2d 276 (4th Cir.
1993).
There is some confusion as to the appropriate standard to be applied in a case such
as this. The Fourth Circuit has indicated that the analysis should be conducted under Rule
12(b)(1):
[W]e observe that rather than granting summary judgment pursuant to Rule

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56(c), the district court should have dismissed the suit for want of jurisdiction
under Rule 12(b)(1) if the United States is not liable for Williams' injury. See
Broussard v. United States, 989 F.2d 171, 177 (5th Cir. 1993) (per curiam)
(noting that the proper practice is to dismiss for want of jurisdiction for
purposes of the FTCA under Rule 12(b)(1), not to grant summary judgment
under Rule 56(c)); Shirey v. United States, 582 F.Supp. 1251, 1259 (D.
S.C.1984) (explaining that if the court lacks subject matter jurisdiction, the
suit must be dismissed). We find distinguishing between the various modes
of liability to have procedural ramifications. The plaintiff bears the burden of
persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1),
see Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.),
cert. denied, 501 U.S. 1222 (1991), because “[t]he party who sues the United
States bears the burden of pointing to ... an unequivocal waiver of immunity,”
Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466
U.S. 958 (1984). In ruling on a Rule 12(b)(1) motion, the court may consider
exhibits outside the pleadings. See Mortensen v. First Federal Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Indeed, “the trial court is free to
weigh the evidence and satisfy itself as to the existence of its power to hear
the case.”

Id.; see also Richland–Lexington Airport Dist. v. Atlas

Properties, 854 F.Supp. 400, 407 (D. S.C. 1994) (cogently explaining the
differences between dismissal procedure under Rule 12(b)(1) and summary
judgment under Rule 56(c)). We exercise plenary review over issues raised

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under Rule 12(b)(1). See Black Hills Aviation, Inc. v. United States, 34
F.3d 968, 972 (10th Cir. 1994).

The differing procedural standards of

dismissal under Rule 12(b)(1) and summary judgment under Rule 56(c) are
more than academic; dismissal under Rule 12(b)(1) has two consequences:
one, the court may consider the evidence beyond the scope of the pleadings
to resolve factual disputes concerning jurisdiction; and two, dismissal for
jurisdictional defects has no res judicata effect. See 2A James W. Moore,
Moore's Federal Practice ¶ 12.07, at 12–49 - 12–50 (2d ed.1994). The
district court implicitly recognized these principles in opining that Williams and
Meridian can litigate in state court.
Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).
On the other hand, the District of Columbia Circuit has more recently held that the
analysis should be conducted under Rule 12(b)(6):
Although we hold that we do not lose jurisdiction over this controversy by
reason of mootness, this does not resolve the jurisdictional theory upon
which the district court relied in dismissing the case under Rule 12(b)(1) for
lack of subject matter jurisdiction. Sierra Club, 724 F.Supp.2d at 42–43.
The district court's ruling was based on the proposition that the
Administrator's decision was discretionary and therefore not justiciable.
Before this court, Sierra Club, which certainly does not concede that the
district court should have dismissed the claim at all, argues that the analysis
should have been under Rule 12(b)(6) to determine whether the complaint

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failed to state a claim upon which relief could be granted rather than under
the jurisdictional standards of Rule 12(b)(1). While it does not in the end
affect the outcome, we ultimately agree that Rule 12(b)(6) should govern.
We hasten to state that we do not fault the district court for basing its
dismissal on Rule 12(b)(1) rather than Rule 12(b)(6).

The distinction

between a claim that is not justiciable because relief cannot be granted upon
it and a claim over which the court lacks subject matter jurisdiction is
important. But we cannot fault the district court, as this court “ha[s] not
always been consistent in maintaining these distinctions.”

Oryszak v.

Sullivan, 576 F.3d 522, 527 (D.C. Cir. 2009) (Ginsburg, J., concurring).
Indeed, we have provided authority both that discretionary duty claims fall
outside our jurisdiction, and that such claims are nonjusticiable under Rule
12(b)(6). In Association of Irritated Residents v. EPA, we held that
agency decisions excluded from judicial review by 5 U.S.C. § 701(a)(2) are
outside the court's jurisdiction. 494 F.3d 1027, 1030 (D.C. Cir. 2007) (“In this
case, subject matter jurisdiction turns on whether the Agreement constitutes
a rulemaking subject to APA review, or an enforcement proceeding initiated
at the agency's discretion and not reviewable by this court.”). Two years
later, in Oryszak v. Sullivan, we came to a different conclusion. Without any
reference to Association of Irritated Residents, we stated:
Because the APA does not apply to agency action committed
to agency discretion by law, a plaintiff who challenges such an

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action cannot state a claim under the APA. Therefore, the
court has jurisdiction over his case pursuant to § 1331, but will
properly grant a motion to dismiss the complaint for failure to
state a claim. Oryszak, 576 F.3d at 525.
Sierra Club v. Jackson, 648 F.3d 848, 853-54 (D.C. Cir. 2011).
Inasmuch as this Court is a part of the Fourth Circuit, this Court will apply Rule
12(b)(1).
In determining whether this Court has jurisdiction, the EPA’s position is not entitled
to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). Our Children’s Earth Found. v. EPA, 527 F.3d 842, 846 (9th Cir. 2008), citing
Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1038–39 (D.C. Cir. 2002) (“Nor is
an agency's interpretation of a statutory provision defining the jurisdiction of the court
entitled to our deference under Chevron.) (In turn citing Adams Fruit Co. v. Barrett, 494
U.S. 638, 650 (1990)).
In determining whether the statute imposes a non-discretionary duty, this Court is
mindful that “the term ‘nondiscretionary’ has been construed narrowly. See Environmental
Defense Fund [v. Thomas], 870 F.2d [892] at 899 [(2d Cir.), cert. denied, 493 U.S. 991
(1989)] (‘[T]he district court has jurisdiction under [section 7604] to compel the
Administrator to perform purely ministerial acts. . ..’); Sierra Club [v. Thomas], 828 F.2d
[783] at 791 [(D.C. Cir. 1987)] (‘clear-cut nondiscretionary duty’); Kennecott Copper
Corp. v. Costle, 572 F.2d 1349, 1355 (9th Cir. 1978) (citizen suit provision was intended
to ‘provide relief only in a narrowly-defined class of situations in which the Administrator

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failed to perform a mandatory function’ (quoting Wisconsin's Envtl. Decade, Inc. v.
Wisconsin Power & Light Co., 395 F.Supp. 313, 321 (W.D. Wis. 1975))); Mountain
States Legal Found. v. Costle, 630 F.2d 754, 766 (10th Cir. 1980) (‘specific nondiscretionary clear-cut requirements’), cert. denied, 450 U.S. 1050 (1981).” Monongahela
Power Co. v. Reilly, 980 F.2d 272, 276 n. 3 (4th Cir. 1992).
The first point of reference is, of course, the statute itself. “Although the line
between a congressional mandate and an area of agency discretion is not difficult to state,
ascertaining that line is not always as easy. When Congress specifies an obligation and
uses the word ‘shall,’ this denomination usually connotes a mandatory command. See
Alabama v. Bozeman, 533 U.S. 146, 153 (2001). On the other hand, ‘[a]bsent some
provision requiring EPA to adopt one course of action over the other, we can only conclude
that EPA's choice represented an exercise of discretion.’ Farmers Union Cent. Exch. v.
Thomas, 881 F.2d 757, 761 (9th Cir. 1989).” Our Children’s Earth Found. v. U.S.E.P.A.,
527 F.3d 842, 847 (9th Cir. 2008).
“However, not every decision is so easily categorized. As the Supreme Court
teaches, the decision-making process does not necessarily collapse into a single final
decision. ‘It is rudimentary administrative law that discretion as to the substance of the
ultimate decision does not confer discretion to ignore the required procedures of
decisionmaking.’ Bennett v. Spear, 520 U.S. 154, 172 (1997). In Bennett, considering
a citizen suit provision parallel to that in the CWA, the Supreme Court held, ‘[s]ince it is the
omission of these required procedures that petitioners complain of, their ... claim is
reviewable.’ Id. at 172 (emphasis added).” Id.

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Because this issue requires this Court to interpret language in a statute, the Court
must follow the well-established canons of statutory interpretation. “[W]hen the statute's
language is plain, the sole function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its terms.” Lamie v. U.S. Tr., 540
U.S. 526, 534 (2004) (citations and internal quotation marks omitted). The statute in
question, 42 U.S.C. § 7621, provides that the Administrator “shall conduct continuing
evaluations . . ..”
“The use of ‘shall’ creates a mandatory obligation on the actor . . . to perform the
specified action. See Allied Pilots Ass'n v. Pension Benefit Guar. Corp., 334 F.3d 93,
98 (D.C. Cir. 2003) (noting ‘the well-recognized principle that the word “shall” is ordinarily
the language of command’) (citation and internal quotation marks omitted); United States
v. Ins. Co. of N. Am., 83 F.3d 1507, 1510 n. 5 (D.C. Cir. 1996) (‘Cases are legion affirming
the mandatory character of “shall.”’) (citing United States v. Monsanto, 491 U.S. 600, 607
(1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per
curiam); Anderson v. Yungkau, 329 U.S. 482, 485 (1947);

Ass'n of Civilian

Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994).” Swanson Group Mfg. LLC
v. Salazar, 951 F.Supp.2d 75, 81 (D. D.C. 2013).
In Raymond Proffitt Found. v. EPA, 930 F.Supp. 1088, 1097 (E.D. Pa. 1996), the
Court stated “both the Supreme Court and the Third Circuit often have stated that the use
of the word ‘shall’ in statutory language means that the relevant person or entity is under
a mandatory duty. United States v. Monsanto, 491 U.S. 600, 607 (1989) (By using ‘shall’
in a civil forfeiture statute, ‘Congress could not have chosen stronger words to express its

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intent that forfeiture be mandatory in cases where the statute applied. . . .’); Pierce v.
Underwood, 487 U.S. 552, 569–70 (1988) (noting that Congress's use of ‘shall’ in a statute
was ‘mandatory language’); Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S.
728, 739 n. 15 (1981) (same); United States v. Martinez–Zayas, 857 F.2d 122, 128 (3d
Cir. 1988) (stating that Congress clearly and unambiguously expressed its intent by stating
that the court ‘shall’ impose a mandatory sentence and that this created a mandatory legal
duty to impose the sentence); United States v. Troup, 821 F.2d 194, 198 (3d Cir. 1987)
(stating that Congress's use of the word ‘shall’ was ‘mandatory’); see also United States
ex rel. Senk v. Brierley, 471 F.2d 657, 659–60 (3d Cir. 1973).
The Fourth Circuit also construes “shall” as expressing a mandatory duty. “As the
Supreme Court remarked in a related context, ‘Congress could not have chosen stronger
words to express its intent that forfeiture be mandatory in cases where the statute applied.’
United States v. Monsanto, 491 U.S. 600, 607 (1989). ‘The word “shall” does not convey
discretion. It is not a leeway word, but a word of command.’ United States v. Fleet, 498
F.3d 1225, 1229 (11th Cir. 2007) (internal quotation marks omitted). The plain text of the
statute thus indicates that forfeiture is not a discretionary element of sentencing. Instead,
§ 2461 mandates that forfeiture be imposed when the relevant prerequisites are satisfied,
as they are here. United States v. Newman, 659 F.3d 1235, 1240 (9th Cir. 2011); see
also United States v. Torres, 703 F.3d 194, 204 (2d Cir. 2012).” United States v.
Blackman, 746 F.3d 137, 143 (4th Cir. 2014). See In re Rowe, 750 F.3d 392, 396-397
(4th Cir. 2014) and Air Line Pilots Assoc., International v. US Airways Group, Inc., 609
F.3d 338, 342 (4th Cir. 2010).

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The legislative history of § 321(a) supports the mandatory nature of the provision.
As the House Interstate and Foreign Commerce Committee reported:

“Under this

provision, the Administrator is mandated to undertake an ongoing evaluation of job losses
and employment shifts due to requirements of the act. This evaluation is to include
investigations of threatened plant closures or reductions in employment allegedly due to
requirements of the act or any actual closures or reductions which are alleged to have
occurred because of such requirements.” H.R. REP. NO. 95-294, at 317 (1977) (emphasis
added).
The EPA argues that the provision is discretionary inasmuch as it contains no “datecertain deadline,” citing inter alia, Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir.
1987) and Maine v. Thomas, 874 F.2d 883, 888 (1st Cir. 1989).
Whether a “date-certain deadline” is necessary to find a non-discretionary duty is
open to some questions. As Judge Sanders noted in Cross Timbers Concerned Citizens
v. Saginaw, 991 F.Supp. 563 (N.D. Tex. 1997):
Defendants claim that absent a “date-certain” deadline for an agency
obligation under the CWA, the duty is purely discretionary. See Sierra Club
v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987) (“In order to impose a clearcut nondiscretionary duty, we believe that a duty of timeliness must
categorically mandat[e] that all specified action be taken by a date-certain
deadline.”). In Sierra Club v. Thomas, the D.C. Circuit interpreted the Clean
Air Act to decide that congressional intent limits citizen suits to those in which
the court is able to determine readily whether a violation occurred. See id.

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at 791.

In the absence of an ascertainable deadline, the D.C. Circuit

reasoned, it may be impossible to conclude that Congress accords an action
such high priority as to impose upon the agency a “categorical mandate” that
deprives it of all discretion over the timing of its work. Id. Defendants
belabor, but quite accurately, that Plaintiff's claim is not related to any duty
for which the CWA provides a date-certain deadline.
The Court is inclined to reject Defendants' broad reading of the D.C.
Circuit's opinion in Sierra Club v. Thomas. The D.C. Circuit itself has
indicated that the question remains open whether a date-certain deadline is
required for a mandatory EPA duty to arise under the Clean Water Act. See
National Wildlife Federation v. Browner, 127 F.3d 1126, 1128 (D.C. Cir.
1997) (declining to decide “whether, as EPA contends, a ‘readily
ascertainable deadline’ for agency action is a necessary jurisdictional basis
for a citizen suit under the [Clean Water] Act”). Furthermore, other courts
have examined the issue of CWA mandatory duty without referring to a daterelated test. See, e.g., Browner, 127 F.3d at 1128; Miccosukee Tribe of
Indians v. USEPA, 105 F.3d 599, 602 (11th Cir. 1997) (and cases cited
therein). Finally, this Circuit's relevant jurisprudence, though it pre-dates
Sierra Club v. Thomas, examines the question from a different standpoint
of analysis. See, e.g., Sierra Club v. Train, 557 F.2d at 491.
991 F.Supp. at 568.
In Sierra Club v. Johnson, 2009 WL 2413094, *3 (N.D. Cal. Aug. 5, 2009), the

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court refused to adopt a bright line rule that only duties with date-certain deadlines are
nondiscretionary.
This Court does not find the lack of a “date-certain deadline” to be fatal to the
plaintiffs’ case.

The statute states that the “Administrator shall conduct continuing

evaluations . . ..” While the EPA may have discretion as to the timing of such evaluations,
it does not have the discretion to categorically refuse to conduct any such evaluations,
which is the allegation of the plaintiffs.
In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court found that a provision
of the Endangered Species Act stating that: “The Secretary shall designate critical habitat,
and make revisions thereto, ... on the basis of the best scientific data available and after
taking into consideration the economic impact, and any other relevant impact, of specifying
any particular area as critical habitat” was language “of obligation rather than discretion.”
520 U.S. at 172 (Emphasis by Supreme Court).
The Court held that “the fact that the Secretary's ultimate decision is reviewable only
for abuse of discretion does not alter the categorical requirement that, in arriving at his
decision, he ‘tak[e] into consideration the economic impact, and any other relevant impact,’
and use ‘the best scientific data available.’ Ibid. It is rudimentary administrative law that
discretion as to the substance of the ultimate decision does not confer discretion to ignore
the required procedures of decisionmaking. See SEC v. Chenery Corp., 318 U.S. 80,
94–95 (1943).” Id. (Emphasis by Supreme Court).
This Court finds that, at this stage of the proceedings, the plaintiff’s allegations are
sufficient to provide this Court with the jurisdiction to hear this case under § 304 of the

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Clean Air Act. The EPA’s motion to dismiss for lack of jurisdiction shall be denied.
The defendant also seeks to have this Court strike the plaintiffs’ prayer for injunctive
relief. “The standard upon which a motion to strike is measured places a substantial
burden on the moving party. ‘A motion to strike is a drastic remedy which is disfavored by
the courts and infrequently granted.’ Clark v. Milam, 152 F.R.D. 66, 70 (S.D. W.Va. 1993).
Generally, such motions are denied ‘unless the allegations attacked have no possible
relation to the controversy and may prejudice the other party.’ Steuart Inv. Co. v. Bauer
Dredging Constr. Co., 323 F.Supp. 907, 909 (D. Md. 1971). Fanase v. Liberty Life
Assurance Co. of Boston, 2011 WL 1706531 (N.D. W.Va. May 5, 2011) (Stamp, J.).
Similarly, in Mayne-Harrison v. Dolgencorp, Inc., 2010 WL 3717604 (N.D. W.Va.
Sept. 17, 2010) (Bailey, J.), this Court held that “[p]ursuant to Rule 12(f) of the Federal
Rules of Civil Procedure, a court may ‘strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.’ Fed.R.Civ.R. 12(f). ‘[M]otions
under 12(f) are viewed with disfavor by the federal courts and are infrequently granted,’ and
are only granted with the challenged pleading has ‘no possible relation or logical connection
to the subject matter of the controversy’ or ‘cause some form of significant prejudice to one
or more parties to the action.’ 5C Charles A. Wright & Arthur Miller, Federal Practice &
Procedure §§ 1380.1382 (West 2009); see also Waste Mgmt. Holdings, Inc. v. Gilmore,
252 F.3d 316, 347 (4th Cir. 2001).
It is clear that this Court has the authority to grant injunctive relief in this case. The
statute provides that “[t]he district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, . . . to order the Administrator to

14

perform such act or duty, as the case may be. . ..” See Environmental Defense Fund v.
Thomas, 870 F.2d 892 (2d Cir. 1989).
While there may exist some question as to scope of the injunctive relief which may
be awarded by this Court, such a question does not satisfy the standard applicable to a
motion to strike. The argument as to the scope of relief is simply premature at this point
in the proceedings. Accordingly, the motion to strike will be denied.
For the reasons stated above, Defendant’s Motion to Dismiss the Complaint and
Motion to Strike Prayer for Injunctive Relief [Doc. 34] is DENIED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: September 16, 2014.

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