Franks v. Ross , 313 F.3d 184 ( 2002 )


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  •                            PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JERRY FRANKS; LAVERNE COFIELD;          
    EASTON ACRES RESIDENTS
    ASSOCIATION,
    Plaintiffs-Appellants,
    v.
    WILLIAM G. ROSS, JR., Secretary for
    the North Carolina Department of
    Environment and Natural Resources,               No. 01-2354
    in his official capacity; DEXTER
    MATTHEWS, Director of Division of
    Solid Waste Management, in his
    official capacity; WAKE COUNTY;
    WAKE COUNTY BOARD OF
    COMMISSIONERS,
    Defendants-Appellees.
    
    Appeal from the United States District Court
    for the Eastern District of North Carolina, at Raleigh.
    Terrence W. Boyle, Chief Judge.
    (CA-00-936-5-BO)
    Argued: June 3, 2002
    Decided: December 4, 2002
    Before MOTZ and KING, Circuit Judges, and
    Robert R. BEEZER, Senior Circuit Judge of the
    United States Court of Appeals for the Ninth Circuit,
    sitting by designation.
    2                          FRANKS v. ROSS
    Affirmed in part, reversed in part, and remanded by published opin-
    ion. Judge King wrote the opinion, in which Judge Motz and Senior
    Judge Beezer joined.
    COUNSEL
    ARGUED: Marcus B. Jimison, Katherine Leigh Carpenter, LAND
    LOSS PREVENTION PROJECT, Durham, North Carolina, for
    Appellants. Michael R. Ferrell, Wake County Attorney, WAKE
    COUNTY ATTORNEY’S OFFICE, Raleigh, North Carolina; Lauren
    Murphy Clemmons, Assistant Attorney General, NORTH CARO-
    LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
    Appellees. ON BRIEF: Shelley Tager Easton, Deputy County Attor-
    ney, WAKE COUNTY ATTORNEY’S OFFICE, Raleigh, North Car-
    olina; Roy Cooper, Attorney General, Nancy E. Scott, Assistant
    Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
    TICE, Raleigh, North Carolina, for Appellees.
    OPINION
    KING, Circuit Judge:
    Plaintiffs Franks, Cofield, and the Easton Acres Residents Associa-
    tion (the "Plaintiffs") appeal from the district court’s October 2001
    decision dismissing their complaint. The Plaintiffs sought injunctive
    relief against the Wake County Board of Commissioners and Wake
    County (collectively, "Wake County" or the "County"), as well as
    from officials of the North Carolina Department of Environment and
    Natural Resources (the "DENR Defendants"), to halt the construction
    of a landfill in Holly Springs, North Carolina. The complaint alleged
    that the actions of Wake County and the DENR Defendants in con-
    nection with the landfill violated Title VI of the Civil Rights Act of
    1964, Title VIII of the Civil Rights Act of 1968, 
    42 U.S.C. § 1982
    ,
    and the Equal Protection Clause of the Fourteenth Amendment. In
    addition, the Plaintiffs asserted a public policy challenge against the
    County, pursuant to 
    N.C. Gen. Stat. § 14-234
     (the "State Claim").
    FRANKS v. ROSS                               3
    The district court dismissed as untimely the Plaintiffs’ Title VI,
    § 1982, and Equal Protection claims against Wake County. The court
    also dismissed the State Claim and the Title VIII challenge for failure
    to state claims upon which relief could be granted. Finally, the court
    relied on Eleventh Amendment sovereign immunity to dismiss the
    Plaintiffs’ claims against the DENR Defendants. In disposing of the
    case, the court also denied the Plaintiffs leave to amend their com-
    plaint for a second time. Franks v. Ross, No. 5:00-CV-936-BO(3),
    Order (E.D.N.C. Oct. 12, 2001) (the "Dismissal Order"). As explained
    below, we affirm the court’s dismissal of the State Claim against
    Wake County. However, we reverse its dismissal of the Title VI,
    § 1982, and Equal Protection claims against the County.1 Further, we
    conclude the court erred in refusing to authorize an amendment of the
    complaint and in determining that the DENR Defendants are entitled
    to immunity.
    I.
    A.
    This proceeding arises from the efforts of Wake County to con-
    struct and operate a landfill in Holly Springs, North Carolina. These
    efforts have followed a tortured path, and they implicate issues of
    racial discrimination, conflicts of interest, administrative procedure,
    and the timeliness and ripeness of claims.
    The small town of Holly Springs is home to the largest percentage
    of African Americans of any municipality in Wake County.2 Despite
    having less than two percent of the County’s population, this African-
    American community has long borne a disproportionate share of
    Wake County’s landfills. In 1975, Wake County sited a 300-acre solid
    waste landfill in Feltonsville, a neighborhood adjoining Holly
    Springs. This landfill (the "Feltonsville Landfill") operated for over
    twenty years. Holly Springs itself is presently home to three other
    landfills.
    1
    In their appeal, the Plaintiffs have not contested the dismissal of their
    Title VIII claim as to Wake County, and we do not address it here.
    2
    Wake County encompasses the major municipality of Raleigh, the
    capital of the Tar Heel State.
    4                           FRANKS v. ROSS
    In the early 1990s, Wake County decided to pursue the creation of
    a new landfill in Holly Springs, designated as the "South Wake Land-
    fill." In February 1999, the DENR issued the County a permit autho-
    rizing construction of the South Wake Landfill (the "South Wake
    Permit" or the "Permit"). The Plaintiffs promptly challenged the issu-
    ance of the Permit in state administrative proceedings. Thereafter, in
    December 2000, they instituted this proceeding in the Eastern District
    of North Carolina, seeking injunctive relief against the County and
    the DENR to halt construction of the South Wake Landfill. When
    their claims were dismissed, the Plaintiffs filed this appeal. In our
    review of the dismissal, we are obliged to accept as true the facts
    alleged in the complaint.3 Those facts are further reviewed in relevant
    part below.
    B.
    The Plaintiffs allege that Wake County has long engaged in a pat-
    tern of intentional discrimination in the siting of undesirable landfills
    near predominantly African-American communities. They also assert
    that the DENR, "by approving and permitting sites for landfills . . .
    near Black neighborhoods and communities," has engaged in a simi-
    lar pattern of discrimination. The DENR has permitted at least four
    other landfills in and around Holly Springs, "near areas primarily
    occupied by minorities," i.e., the Feltonsville Landfill, the Browning-
    Ferris Industries Landfill, the Cary Landfill, and the Holly Springs
    Landfill.
    The siting and permitting of the landfill at issue here began in
    October 1990, when the Wake County Board of Commissioners
    decided to purchase additional property in order to expand the
    Feltonsville Landfill. One of the commissioners, a Mr. Adcock, voted
    in favor of the land purchase, despite the fact that he owned eighty-
    four acres of the land involved. On September 1, 1992, the Holly
    Springs Board of Commissioners adopted a resolution granting per-
    mission to the County to expand the Feltonsville Landfill. Once the
    County received that permission, it sought approval from the DENR.
    Prior to securing the DENR’s approval, however, new state and fed-
    3
    Anita’s N.M. Style Mexican Food, Inc. v. Anita’s Mexican Foods
    Corp., 
    201 F.3d 314
    , 316 (4th Cir. 2000).
    FRANKS v. ROSS                              5
    eral environmental regulations came into effect. These regulations
    required all unlined landfills, such as the Feltonsville Landfill, to
    close by January 1, 1998. Upon learning that the Feltonsville Landfill
    would be forced to close, the County altered its proposed landfill proj-
    ect, abandoning the expansion plan for the Feltonsville Landfill in
    favor of the construction of an entirely new landfill. In December
    1992, it submitted a site application plan to the DENR for the con-
    struction of the South Wake Landfill. If completed, the South Wake
    Landfill will spread across 471 acres, at a height of 280 feet.
    On March 25, 1994, in the course of acquiring property on which
    to build the South Wake Landfill, the County condemned the eighty-
    four acre tract of land owned by Commissioner Adcock. On March
    14, 1995, the DENR issued, pursuant to its regulations, a site suitabil-
    ity letter for the Landfill. This letter notified the County that the site
    was considered appropriate, and it authorized the County to apply to
    the DENR for a permit to construct the South Wake Landfill. On
    December 31, 1996, Wake County submitted to the DENR its appli-
    cation for a permit.
    The Plaintiffs assert that "the defendants . . . pursued every route
    possible in order to prevent the plaintiffs from receiving adequate
    notice and participating in discussions regarding the landfill at a
    meaningful point in the process." Indeed, there was no public partici-
    pation in the process until May 16, 1998, when the DENR, before rul-
    ing on the County’s permit application, conducted a public hearing on
    the proposed South Wake Landfill. Three days after the hearing, the
    Holly Springs Board of Commissioners revoked its October 1992 res-
    olution authorizing the County to expand the Feltonsville Landfill.4
    Thereafter, in September 1998, the DENR inquired of the County
    whether its construction of the South Wake Landfill would dispa-
    rately impact minority communities. The County responded that there
    would be no such disparate impact. On February 18, 1999, the DENR
    issued the South Wake Permit, authorizing the County to construct
    the South Wake Landfill.
    4
    While the Holly Springs Board of Commissioners had adopted its
    1992 resolution granting the County permission to expand the Feltons-
    ville Landfill, the Board has never approved construction of a new waste
    disposal facility, such as the South Wake Landfill.
    6                                 FRANKS v. ROSS
    C.
    The Plaintiffs’ challenges to the construction of the South Wake
    Landfill have travelled a complicated path; they are ongoing both in
    this Court and in the Court of Appeals of North Carolina. In March
    1999, Plaintiff Franks filed a "contested case" petition with North
    Carolina’s Office of Administrative Hearings, seeking both to set
    aside the DENR’s issuance of the South Wake Permit and to enjoin
    Wake County from taking any action with regard to the South Wake
    Landfill.5 An Administrative Law Judge (the "ALJ"), ruling on a sum-
    mary judgment motion, concluded that Wake County had violated
    North Carolina law in the permitting process by, inter alia, failing to
    procure Holly Springs’s permission to construct the new landfill and
    failing to comply with the mandate of N.C. Gen. Stat. § 153A-136(c).
    This statutory provision requires that a county board of commission-
    ers, prior to selecting a new landfill site, consider alternative sites as
    well as socioeconomic and demographic data, and conduct a public
    hearing.6 Franks v. N.C. Dep’t of Env’t & Natural Res., 99 EHR
    5
    When a North Carolina state agency and a "person" are unable to
    informally resolve a dispute between them, "either the agency or the per-
    son may commence an administrative proceeding to determine the per-
    son’s rights, duties, or privileges, at which time the dispute becomes a
    ‘contested case.’" N.C. Gen. Stat. § 150B-22. An Administrative Law
    Judge ("ALJ") then issues a recommended decision and transfers the case
    to the responsible agency for a final decision. Id. § 150B-34. The agency
    must issue its final decision within 90 days of receiving the official
    record; in the event it fails to meet the statutory deadline, a party may
    seek a court order declaring the ALJ’s recommended decision the "final
    agency decision." Id. § 150B-44 (amended 2000). Once a final agency
    decision has been reached in a contested case, "any person who is
    aggrieved . . . is entitled to judicial review of the decision." Id. § 150B-
    43.
    6
    On July 22, 1992, while Wake County was seeking to expand the Fel-
    tonsville Landfill, North Carolina enacted § 153A-136(c), which pro-
    vides that a county board of commissioners shall:
    consider alternative sites and socioeconomic and demographic
    data and shall hold a public hearing prior to selecting or approv-
    ing a site for a new sanitary landfill that receives residential solid
    waste that is located within one mile of an existing sanitary land-
    fill within the State.
    FRANKS v. ROSS                              7
    0344, 380, Recommended Decision (Sept. 28, 1999) (the "Recom-
    mended Decision"). The Recommended Decision required the DENR
    to withdraw the South Wake Permit "until all procedural requirements
    are met." Id. at 22. In November 1999, the ALJ transferred the case
    to the DENR for a "final agency decision," pursuant to N.C. Gen.
    Stat. § 150B-34. After the DENR failed to render its decision within
    the ninety-day period mandated by the statute, Franks requested the
    Wake County Superior Court to declare the Recommended Decision
    to be the DENR’s final agency decision. The Superior Court agreed
    with Franks and, on October 4, 2000, it concluded that the Recom-
    mended Decision constituted the DENR’s final agency decision.
    Franks v. N.C. Dep’t of Env’t & Natural Res., 00 CVS 3742, Order
    (Wake County Super. Ct. Oct. 4, 2000).
    Wake County then initiated a separate proceeding in Wake County
    Superior Court, pursuant to N.C. Gen. Stat. § 150B-43, appealing the
    DENR’s final agency decision, which revoked the South Wake Per-
    mit. That court, on March 16, 2001, reversed the DENR’s final
    agency decision, and it ordered the DENR to reissue the Permit.
    County of Wake v. N.C. Dep’t of Env’t & Natural Res., 00 CVS
    11760, Petitioner’s Proposed Order (entered by Wake County Super.
    Ct. Mar. 16, 2001) (the "Permit Reissuance Decision"). Franks then
    appealed the Permit Reissuance Decision to the Court of Appeals of
    North Carolina, where it is presently pending. The appeal was heard
    by the Court of Appeals on April 17, 2002, and the issues before the
    court include, inter alia, the applicability of § 153A-136(c) to the
    South Wake Landfill dispute, as well as whether Holly Springs was
    entitled to withdraw its 1992 approval of the expansion of the
    Feltonsville Landfill.
    N.C. Gen. Stat. § 153A-136(c). Prior to submitting its permit application
    for the South Wake Landfill to the DENR in 1996, Wake County failed
    to conduct a public hearing to inform the residents of Holly Springs of
    the County’s original plan to expand the Feltonsville Landfill, or of its
    plan to build the South Wake Landfill. The applicability of § 153A-
    136(c) to the South Wake Landfill is disputed by the parties, and applica-
    tion of the statute is a primary issue being litigated in the ongoing state
    proceedings.
    8                             FRANKS v. ROSS
    D.
    On December 21, 2000, after the South Wake Permit had been
    revoked and while the Superior Court’s review of the DENR’s "final
    agency decision" was pending, the Plaintiffs filed suit against the
    County and the DENR in the Eastern District of North Carolina, seek-
    ing to enjoin the entire South Wake Landfill process. In their initial
    complaint, the Plaintiffs maintained that the siting of the South Wake
    Landfill violated Title VI,7 Title VIII,8 § 1982,9 and the Equal Protec-
    tion Clause. In addition, the complaint asserted the State Claim, main-
    taining that Commissioner Adcock had violated North Carolina public
    policy, specifically 
    N.C. Gen. Stat. § 14
     234, by participating in the
    siting of the South Wake Landfill on his own land, rendering the con-
    demnation transaction void. By their complaint, the Plaintiffs
    requested the court to declare the siting, approval, and funding of the
    South Wake Landfill to be illegal, and they further requested that the
    court "[e]njoin Defendants from constructing, operating, and/or main-
    taining the South Wake Landfill." After Wake County and the DENR
    separately moved to dismiss the complaint for want of jurisdiction
    and for failure to assert any claims upon which relief could be
    granted, the Plaintiffs amended their complaint, dismissing their
    claims against the DENR itself and naming instead the DENR Defen-
    dants (the "First Amended Complaint").10 On May 29, 2001, the
    7
    The pertinent part of Title VI is codified at 42 U.S.C. § 2000d and
    provides that "[n]o person in the United States shall, on the ground of
    race . . . be subjected to discrimination under any program or activity
    receiving Federal financial assistance." 42 U.S.C. § 2000d.
    8
    The relevant section of Title VIII is codified at 
    42 U.S.C. § 3604
    (b)
    and provides that it is unlawful "[t]o discriminate against any person in
    the terms, conditions, or privileges of sale or rental of a dwelling . . .
    because of race." 
    42 U.S.C. § 3604
    (b).
    9
    Pursuant to § 1982 of Title 42 of the United States Code "[a]ll citizens
    . . . have the same right, in every State . . . , as is enjoyed by white citi-
    zens thereof to inherit, purchase, lease, sell, hold, and convey real and
    personal property." 
    42 U.S.C. § 1982
    .
    10
    The First Amended Complaint was filed on February 26, 2001, pur-
    suant to Rule 15(a) of the Federal Rules of Civil Procedure, and it named
    DENR Secretary William G. Ross, Jr., and a DENR Director, William
    Meyer, as defendants in their official capacities. Subsequently, Dexter
    Matthews replaced Mr. Meyer as Director, and he is now a defendant.
    Thereafter, on March 8, 2001, the Plaintiffs dismissed their claims
    against the DENR without prejudice.
    FRANKS v. ROSS                              9
    Plaintiffs requested leave to amend a second time, seeking to file their
    "Second Amended Complaint," in order to respond to the Permit
    Reissuance Decision and to assert a claim under 
    42 U.S.C. § 1983
    .
    The court, however, by its Order of October 12, 2001, denied the
    motion to amend, concluding that the amendment would "clearly prej-
    udice" the DENR Defendants. Dismissal Order at 11.
    The Dismissal Order also granted the motions of Wake County and
    the DENR Defendants to dismiss the First Amended Complaint. The
    court concluded that the Title VI, § 1982, and Equal Protection claims
    against Wake County were barred by North Carolina’s three year stat-
    ute of limitations. Id. at 5-7. In addition, the court ruled that both the
    State Claim and the Title VIII challenge against the County failed to
    pass muster under Rule 12(b)(6) of the Federal Rules of Civil Proce-
    dure. Id. at 7-9. The court further determined that the DENR Defen-
    dants were entitled to sovereign immunity, and it dismissed the claims
    asserted against them. Id. at 9-11. The Plaintiffs appeal, contending
    that the court erred in dismissing their claims and that it abused its
    discretion in declining to grant them leave to file their Second
    Amended Complaint. We possess jurisdiction pursuant to 
    28 U.S.C. § 1291
    .
    II.
    A.
    The Plaintiffs raise three primary contentions in their appeal. First,
    they assert that the court abused its discretion in refusing to grant
    them leave to amend. Second, they maintain that the district court
    improperly dismissed their claims against Wake County. And third,
    they contend that the DENR Defendants are not entitled to sovereign
    immunity. We begin our analysis of the issues by explaining the
    applicable standards of review.
    B.
    First, we review for abuse of discretion the denial of a motion for
    leave to amend a complaint. HCMF Corp. v. Allen, 
    238 F.3d 273
    ,
    276-77 (4th Cir. 2001). Under Rule 15(a), which governs such
    10                           FRANKS v. ROSS
    requests, leave to amend a complaint "shall be freely given when jus-
    tice so requires." Fed. R. Civ. P. 15(a).
    In certain situations we review de novo a district court’s dismissal
    of a claim on statute of limitations grounds. United States v. United
    Med. and Surgical Supply Corp., 
    989 F.2d 1390
     (4th Cir. 1993).
    Where, as here, the challenge is not to the existence of certain facts,
    but instead rests on "whether those facts demonstrate a failure [to
    bring a timely claim,] resolution . . . turns on questions of law which
    are reviewed de novo." 
    Id. at 1398
    .
    We likewise review de novo the dismissal of a complaint for fail-
    ure to state a claim upon which relief could be granted. GE Inv. Pri-
    vate Placement Partners II v. Parker, 
    247 F.3d 543
    , 548 (4th Cir.
    2001). Such a motion to dismiss, made under Rule 12(b)(6), "should
    not be granted unless it appears certain that the plaintiff can prove no
    set of facts which would support its claim and would entitle it to
    relief." Mylan Labs., Inc. v. Matkari, 
    7 F.3d 1130
    , 1134 (4th Cir.
    1993). In considering such a motion, "the court should accept as true
    all well-pleaded allegations and should view the complaint in a light
    most favorable to the plaintiff." 
    Id.
    Finally, the existence of sovereign immunity is a question of law
    that we review de novo. Research Triangle Inst. v. Bd. of Governors
    of the Fed. Reserve Sys., 
    132 F.3d 985
    , 987 (4th Cir. 1997). In addi-
    tion, we review de novo a "district court’s legal determination [of]
    whether Ex parte Young relief is available." CSX Transp., Inc. v. Bd.
    of Pub. Works of W. Va., 
    138 F.3d 537
    , 541 (4th Cir. 1998).
    We address each of the Plaintiffs’ contentions in turn.
    III.
    A.
    We first consider the Plaintiffs assertion that the district court erred
    in refusing to permit the filing of their Second Amended Complaint.
    Although we review the denial of a motion to amend for abuse of dis-
    cretion, a court abuses its discretion "by resting its decision on a
    FRANKS v. ROSS                            11
    clearly erroneous finding of a material fact." Quince Orchard Valley
    Citizens Ass’n v. Hodel, 
    872 F.2d 75
    , 78 (4th Cir. 1989) (internal quo-
    tation and citation omitted). As explained below, the court’s conclu-
    sion that the defendants would be clearly prejudiced was based on an
    error of material fact.
    On May 29, 2001, the Plaintiffs sought leave to file their Second
    Amended Complaint, in order to respond to the Superior Court’s Per-
    mit Reissuance Decision and to add a § 1983 claim. In their proposed
    Second Amended Complaint, the Plaintiffs sought to request the dis-
    trict court to "order [the DENR Defendants] to revoke and withdraw
    the permit for the South Wake Landfill." The court declined to grant
    leave to amend, however, on the ground that the amendment would
    "clearly prejudice" the DENR Defendants. Dismissal Order at 11. The
    court based this conclusion on its mistaken belief that the Plaintiffs
    had not sought leave to amend until "nearly seven months" after the
    Permit Reissuance Decision. Id. Specifically, the court believed that
    the Superior Court had issued its decision on October 4, 2000, and
    that the Plaintiffs had not sought leave to amend until April 27, 2001.11
    Id. In fact, however, the Superior Court had issued its Permit Reissu-
    ance Decision on March 16, 2001, rather than on October 4, 2000,
    and the Plaintiffs had filed their motion to amend on May 29, 2001.
    Thus, contrary to the district court’s understanding, the Plaintiffs had
    not waited seven months to seek to amend their complaint, but they
    had instead sought such leave less than three months after the Permit
    Reissuance Decision.
    Under the applicable Rule, "leave [to amend a complaint] shall be
    freely given when justice so requires." Fed. R. Civ. P. 15(a). In fact,
    such leave "should be denied only when the amendment would be
    prejudicial to the opposing party, there has been bad faith on the part
    of the moving party, or the amendment would be futile." Edwards v.
    City of Goldsboro, 
    178 F.3d 231
    , 242 (4th Cir. 1999) (emphasis in
    original) (internal quotation and citation omitted). In these circum-
    11
    On October 4, 2000, the Superior Court entered its Order deciding
    that the Recommended Decision of the ALJ (revoking the DENR’s issu-
    ance of the South Wake Permit) constituted the final agency decision of
    the DENR. The Permit Reissuance Decision was rendered in a separate
    proceeding five months later.
    12                          FRANKS v. ROSS
    stances, the filing of the Second Amended Complaint, less than three
    months after entry of the Permit Reissuance Decision, could hardly
    have prejudiced the defendants. And in light of the significance of the
    Permit Reissuance Decision, the filing of the Second Amended Com-
    plaint should have been authorized. As Judge Ervin properly observed
    in Quince Orchard, 
    supra,
     a decision premised on a "clearly errone-
    ous finding of material fact" constitutes an abuse of discretion.12 
    872 F.2d at 78
    .
    B.
    In dismissing the Plaintiffs’ claims against Wake County, the dis-
    trict court concluded that the Plaintiffs’ Title VI, § 1982 and Equal
    Protection claims (the "Federal Claims") were filed in an untimely
    manner. It then decided that the State Claim failed to pass muster
    under Rule 12(b)(6). In determining the propriety of the court’s dis-
    missal of these claims against Wake County, we first assess the stat-
    ute of limitations issue.
    1.
    In December 2000, the Plaintiffs filed their initial complaint
    against Wake County. The court concluded that North Carolina’s
    three-year statute of limitations, found in 
    N.C. Gen. Stat. § 1-52
    (16),
    applied to the Federal Claims, and that the limitations period began
    to run in either 1991 or 1992, "when the County made the decision
    to site the landfill and began to purchase property." Dismissal Order
    at 6. Because the Plaintiffs filed their Federal Claims more than eight
    years later, the court found those claims to be untimely. While the
    court correctly identified the applicable limitations period, it erred in
    concluding that the period started to run in 1991 or 1992.
    First of all, the predicate bases for the Federal Claims do not con-
    tain an explicit limitations period. The Federal Claims are accordingly
    governed by the limitations period of the most analogous state stat-
    12
    Wake County and the DENR Defendants contend that, in any event,
    the court’s refusal to authorize the amendment should be affirmed
    because it would have been futile. This Court, however, is ill-suited to
    decide a claim of futility not addressed by the district court.
    FRANKS v. ROSS                             13
    utes. As Chief Judge Wilkinson explained in Jersey Heights Neigh-
    borhood Association v. Glendening, 
    174 F.3d 180
    , 187 (4th Cir.
    1999), "the personal nature of the right against discrimination justifies
    applying the state personal injury limitations period." In this instance,
    the district court correctly concluded that the applicable statute of lim-
    itations for personal injury actions in North Carolina is three years.
    
    N.C. Gen. Stat. § 1-52
    (16).
    The question of when a statute of limitations is triggered is one of
    federal law. As the Third Circuit has observed, a cause of action
    accrues for purposes of the statute of limitations "when it is suffi-
    ciently ripe that one can maintain suit on it." Whittle v. Local 641,
    Int’l Bhd. of Teamsters, 
    56 F.3d 487
    , 489 (3d Cir. 1995); see also Bell
    v. Aerodex, 
    473 F.2d 869
     (5th Cir. 1973) ("[A] cause of action
    accrues when the plaintiff could first have successfully maintained a
    suit based on that cause of action."); Skyberg v. United Food & Com-
    mercial Works Int’l Union, 
    5 F.3d 297
    , 301 (8th Cir. 1993) (same);
    Ghartey v. St. John’s Queens Hosp., 
    869 F.2d 160
    , 163 (2d Cir. 1989)
    (same). Wake County contends that the limitations period began to
    run "at the latest by the time Wake County submitted its site plan
    application to the DENR in December, 1992." The Plaintiffs, by con-
    trast, maintain that the period was not triggered until the DENR
    issued the South Wake Permit on February 18, 1999, which autho-
    rized the construction of the South Wake Landfill.
    Put simply, the applicable statute of limitations could not have
    been triggered in either 1991 or 1992, because the Plaintiffs’ claims
    would not then have been ripe for determination. See Whittle, 
    56 F.3d at 489
    . In evaluating the ripeness of claims for judicial review, courts
    must balance "the ‘fitness of the issues for judicial decision’ and the
    ‘hardship to the parties of withholding court consideration.’" Ohio
    Forestry Ass’n, Inc. v. Sierra Club, 
    523 U.S. 726
    , 733 (1998) (quoting
    Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 149 (1967)). As our Judge
    Russell properly explained, "[a] case is fit for judicial decision . . .
    where the agency rule or action giving rise to the controversy is final
    and not dependent upon future uncertainties or intervening agency
    rulings." Charter Fed. Sav. Bank v. Office of Thrift Supervision, 
    976 F.2d 203
    , 208 (4th Cir. 1992) (citing Abbott Labs., 
    387 U.S. at 149
    ).
    Therefore, in assessing when the limitations period was triggered in
    14                          FRANKS v. ROSS
    this dispute, we must first ascertain when the final agency action
    occurred that gave rise to this controversy.
    The permitting process for the South Wake Landfill involved two
    essential steps: (1) the actions of the County in siting the Landfill and
    acquiring property; and (2) the approval of the DENR, in the form of
    its site suitability letter and its issuance of the Permit on February 18,
    1999. As we have discussed, supra at 4-5, Wake County and the
    DENR had an interwoven involvement in the permitting process over
    an extended period. As such, the participation of the County and the
    DENR are properly viewed as two parts of a single permitting pro-
    cess. This controversy was not ripe for judicial review until the com-
    pletion of the final step of the process, i.e., the DENR’s issuance of
    the South Wake Permit. See New Hanover Township v. U.S. Army
    Corps of Eng’rs, 
    992 F.2d 470
     (3d Cir. 1993) (concluding that the
    challenge to defendant’s issuance of a general permit to landfill cor-
    poration was not ripe for review because corporation needed further
    approval from state agency prior to proceeding with landfill project).
    Indeed, it would have been premature for the Plaintiffs to file their
    complaint in the early 1990s, or at any time prior to the DENR’s issu-
    ance of the South Wake Permit in 1999. Had the DENR declined to
    issue the Permit, the South Wake Landfill project could not have gone
    forward, and the district court would have been unnecessarily entan-
    gled in what the Supreme Court has aptly labeled an "abstract dis-
    agreement[ ]." Abbott Labs., 
    387 U.S. at 148
    .
    The parties disagree on the significance to this appeal of our han-
    dling of a statute of limitations issue in Jersey Heights Neighborhood
    Association v. Glendening, 
    174 F.3d 180
     (4th Cir. 1999). In that situa-
    tion, African-American residents of Maryland challenged the routing
    of a proposed highway bypass. The Maryland State Highway Admin-
    istration had studied alternate routes, and in May 1989 it issued its
    Final Environmental Impact Statement, recommending the challenged
    route. In August 1989, the Federal Highway Administration issued its
    Record of Decision ("ROD") approving the proposed routing. We
    concluded that the statute of limitations was triggered by the issuance
    of the ROD, despite the fact that the bypass required additional per-
    mits, because on the "fundamental question of where the highway
    would be located, the ROD . . . signaled the end of the decisionmak-
    ing process." 
    Id. at 186
    . Further, we found ripeness as of the issuance
    FRANKS v. ROSS                             15
    of the ROD because "there was no obvious factual contingency that
    put construction seriously in doubt." 
    Id. at 188
    .
    In this case, by contrast, the County’s siting of the Landfill was a
    preliminary step; there remained several obvious factual contingen-
    cies that put the Landfill’s construction in serious doubt. Before
    granting its approval for the Landfill, the DENR was required to fol-
    low additional procedural steps and to consider numerous relevant
    factors, including whether the Landfill would disparately impact
    minority communities. The siting of the Landfill did not conclude the
    decisionmaking process on the project. Thus, a challenge to the Land-
    fill was not ripe for review, and the statute of limitations did not begin
    to run, until the DENR issued the South Wake Permit on February 18,
    1999.13 While the siting decisional process in Jersey Heights ended
    with the ROD, this process carried through to the issuance of the
    South Wake Permit. Thus, it is with the issuance of that Permit that
    the statute of limitations began to run. See Whittle, 
    56 F.3d at 489
    (concluding that limitations period commences to run when claim is
    sufficiently ripe to bring cause of action).
    In sum, the Federal Claims against Wake County became ripe for
    review on February 18, 1999, when the DENR issued the South Wake
    Permit, and the Plaintiffs were entitled to assert their claims within
    three years of that date. They filed their complaint less than three
    years later, on December 21, 2000, and hence it was timely. Thus, the
    court erred in dismissing the Federal Claims against Wake County on
    statute of limitations grounds.
    13
    The Eleventh Circuit, in a decision relied on by the Defendants, con-
    cluded that an applicable statute of limitations was triggered when a
    county board selected a landfill site, rather than when a state environ-
    mental agency issued its permit. Rozar v. Mullis, 
    85 F.3d 556
     (11th Cir.
    1996). The court viewed its proper focus as "the time of the discrimina-
    tory act" rather than when "the consequences of the act become painful."
    
    Id. at 563
    . Our analysis differs from Rozar because the discriminatory act
    that is under review must be the final siting approval, not just the siting
    vote, in line with the requirement that there be "no obvious factual con-
    tingency" that puts a particular injury in doubt. Jersey Heights, 
    174 F.3d at 188
    .
    16                              FRANKS v. ROSS
    2.
    The Plaintiffs also contest the district court’s dismissal of the State
    Claim, which charged Wake County with contravening North Caro-
    lina public policy. The Plaintiffs alleged that, in Wake County’s effort
    to acquire land to expand the Feltonsville Landfill, Commissioner
    Adcock "participated in the discussion and seconded the purchase of
    property even though his wife and he owned 84 acres that would . . .
    be purchased for the landfill expansion." In March 1994, the County
    condemned the eighty-four acres owned by Commissioner Adcock for
    use in the South Wake Landfill, and Adcock received a judgment
    against the County for over $400,000. The Plaintiffs maintain that this
    transaction violated North Carolina public policy, specifically 
    N.C. Gen. Stat. § 14-234
    , which prohibits county commissioners from
    receiving profits by entering into contracts with their county.14 The
    district court dismissed the State Claim, concluding that, while § 14-
    234 prohibits contracts between a commissioner and his county,
    Commissioner Adcock’s profit resulted not from a contract, but rather
    from a land condemnation. Dismissal Order at 8-9.
    We agree with the district court that § 14-234 speaks of contracts,
    and that it does not specifically prohibit a commissioner from profit-
    ing from the condemnation of his land. While we are troubled by the
    allegations surrounding Commissioner Adcock’s conduct, the revi-
    sion of North Carolina’s public policy is not within our bailiwick. As
    such, the court did not err in dismissing the State Claim.
    C.
    Finally, we turn to the Plaintiffs’ claims against the DENR Defen-
    dants, which the district court dismissed upon concluding that they
    14
    Section 14-234 of the General Statutes of North Carolina provides in
    relevant part that:
    [i]f any . . . commissioner [of] . . . any county . . . make[s] any
    contract for his own benefit, under such authority, or be in any
    manner concerned or interested in making such contract, or in
    the profits thereof, . . . he shall be guilty of a misdemeanor.
    
    N.C. Gen. Stat. § 14-234
    .
    FRANKS v. ROSS                             17
    were entitled to sovereign immunity under the Eleventh Amendment.
    In so ruling, the court rejected the Plaintiffs’ contention that the doc-
    trine of Ex parte Young, 
    209 U.S. 123
     (1908), provided an exception
    to sovereign immunity in this case. Dismissal Order at 10.
    It is established that sovereign immunity protects a state from being
    sued by one of its own citizens without its consent. Alden v. Maine,
    
    527 U.S. 706
    , 727-28 (1999). The long-standing doctrine of Ex parte
    Young, however, "allows private citizens, in proper cases, to petition
    a federal court to enjoin State officials in their official capacities from
    engaging in future conduct that would violate the Constitution or a
    federal statute." Antrican v. Odom, 
    290 F.3d 178
    , 184 (4th Cir. 2002).
    Specifically, Ex parte Young authorizes "suits against state officers
    for prospective equitable relief from ongoing violations of federal
    law." Lytle v. Griffith, 
    240 F.3d 404
    , 408 (4th Cir. 2001). To deter-
    mine whether the Ex parte Young doctrine is applicable, as the
    Supreme Court recently observed, a court "need only conduct a
    straightforward inquiry into whether the complaint alleges an ongoing
    violation of federal law and seeks relief properly characterized as pro-
    spective." Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., ___ U.S.
    ___, 
    122 S. Ct. 1753
    , 1760 (2002) (internal quotation and citation
    omitted).
    In their First Amended Complaint, the Plaintiffs repeatedly request
    injunctive relief against the DENR Defendants. They specifically
    seek, for example, "declaratory and injunctive relief against the North
    Carolina Department of Environment and Natural Resources and the
    Wake County Board of Commissioners." Further, they request that
    the court "[e]njoin Defendants from constructing, operating and/or
    maintaining the South Wake Landfill on the site which is the subject
    of this lawsuit." The court concluded, however, that these allegations
    fail to satisfy Ex parte Young because, when the Plaintiffs filed their
    First Amended Complaint on February 26, 2001, naming the DENR
    Defendants, the South Wake Permit had been revoked by the Superior
    Court’s October 4, 2000, decision. Dismissal Order at 10; see Franks
    v. N.C. Dep’t of Env’t & Natural Res., 00 CVS 3742, Order (Wake
    County Super. Ct. Oct. 4, 2000) (making Recommended Decision the
    final agency decision of the DENR). Although the South Wake Per-
    mit had been reissued and was viable on October 12, 2001 (when the
    court refused to authorize the filing of the Second Amended Com-
    18                           FRANKS v. ROSS
    plaint), the court nonetheless concluded that the absence of a valid
    landfill permit on February 26, 2001, when the Plaintiffs filed their
    First Amended Complaint, left nothing to be enjoined. Dismissal
    Order at 10. As an additional rationale, the court noted that the Plain-
    tiffs sought to enjoin the construction, operation, and maintenance of
    the South Wake Landfill, but that the DENR has no responsibility for
    such things and hence could not be enjoined from doing them. 
    Id.
     at
    5 n.4.
    First, the district court incorrectly concluded that Ex parte Young
    does not apply here. The court determined that, because the South
    Wake Permit had been revoked by the Superior Court when the First
    Amended Complaint was filed, there was no ongoing violation of fed-
    eral law to be enjoined. As discussed above, the Plaintiffs requested
    leave to amend in order to respond to the reissuance of the South
    Wake Permit, and when the court entered its Dismissal Order on
    October 12, 2001, the South Wake Permit was viable. Regardless of
    whether the court correctly concluded that the First Amended Com-
    plaint did not allege an ongoing violation of federal law, the allega-
    tions in the Second Amended Complaint should have been considered
    in determining whether there was a jurisdictional defect. See Fed. R.
    Civ. P. 15(d); Rowe v. United States Fid. & Guar. Co., 
    421 F.2d 937
    (4th Cir. 1970) (explaining propriety of allowing supplemental plead-
    ing under Rule 15(d) to cure a defect in the initial complaint).
    Under Rule 15(d), a party may supplement its complaint "even
    though the original pleading is defective in its statement of a claim
    for relief or defense."15 
    Id.
     Various courts have concluded that "re-
    15
    A supplemental pleading differs from an amended pleading because
    it relates to matters occurring subsequent to the filing of the initial com-
    plaint. Fed. R. Civ. P. 15(d). To the extent that the Second Amended
    Complaint responds to the Permit Reissuance Decision, it constituted a
    supplemental pleading. This distinction is of little practical significance,
    however, because the standards used by a district court in ruling on a
    motion to amend or on a motion to supplement are nearly identical. In
    either situation, leave should be freely granted, and should be denied
    only where "good reason exists . . . , such as prejudice to the defendants."
    Walker v. United Parcel Serv., 
    240 F.3d 1268
    , 1278 (10th Cir. 2001)
    (internal quotation and citation omitted); see also Bates v. W. Elec., 420
    FRANKS v. ROSS                             19
    quiring [a] plaintiff to go through the needless formality and expense
    of instituting a new action when events occurring after the original fil-
    ing indicated he had a right to relief [is] inconsistent with the philoso-
    phy of the federal rules." 6A Charles Alan Wright & Arthur R. Miller,
    Federal Practice and Procedure § 1505 (2d ed. 1990) (citing cases).
    For example, in Security Insurance Co. of New Haven, Connecticut
    v. United States ex rel. Haydis, 
    338 F.2d 444
     (9th Cir. 1964), the
    plaintiff filed his complaint prior to a mandatory ninety-day waiting
    period required by law. He then filed a supplemental pleading, more
    than a year later, after the statute of limitations had expired. The
    defendants contended, alternatively, that the supplemental pleading
    was time-barred or, if it was found to relate back, the complaint was
    filed prematurely. 
    Id. at 444
    . The court, viewing this argument as
    absurd, observed that "[n]othing but the most compelling authority
    . . . would induce us to stay on this legal merry-go-round." 
    Id.
    Indeed, the filing of a supplemental pleading is an appropriate
    mechanism for curing numerous possible defects in a complaint. See
    Wilson v. Westinghouse Elec. Corp., 
    838 F.2d 286
     (8th Cir. 1988)
    (concluding that the plaintiff’s amended complaint cured ripeness
    defect in original complaint); Lyman v. Livingston, 
    257 F. Supp. 520
    ,
    525 (D. Del. 1966) (explaining that plaintiff was entitled to supple-
    ment complaint to demonstrate that she had made mandatory demand
    upon corporation and thereby had standing to bring stockholder deriv-
    ative suit); Ridgeway v. Int’l Bhd. of Elec. Workers, 
    466 F. Supp. 595
    (N.D. Ill. 1979) (allowing amendment to add party in order to cure
    defect in Title VII claim); Bates v. W. Elec., 
    420 F. Supp. 521
     (E.D.
    Pa. 1976) (permitting plaintiffs to file amended complaint to demon-
    strate that, subsequent to filing of initial complaint, they complied
    with jurisdictional prerequisites of Title VII).
    Even assuming, as the district court found, that the First Amended
    Complaint did not allege an ongoing violation of federal law, the
    F. Supp. 521 (E.D. Pa. 1976). In addition, we review both a denial of
    leave to amend and a denial for leave to supplement for abuse of discre-
    tion. See Rowe v. United States Fid. & Guar. Co., 
    421 F.2d 937
     (4th Cir.
    1970); Edwards v. City of Goldsboro, 
    178 F.3d at 242
    ; see also Burns
    v. Exxon Corp., 
    158 F.3d 336
     (5th Cir. 1998).
    20                          FRANKS v. ROSS
    Plaintiffs alleged an ongoing violation, as required by Ex parte
    Young, in their Second Amended Complaint. As we discussed earlier,
    supra at 10-12, the court should have authorized the filing of the Sec-
    ond Amended Complaint. And had it been filed, it would have
    resolved any potential Eleventh Amendment issue. Under the Second
    Amended Complaint, the Plaintiffs appropriately sought prospective
    injunctive relief against the DENR Defendants, and the court improp-
    erly dismissed the claims against them.
    Second, we are unable to accept the district court’s conclusion that
    the Ex parte Young doctrine does not apply to the DENR Defendants
    because the Plaintiffs sought only to enjoin the construction, opera-
    tion, and maintenance of the South Wake Landfill. While the DENR
    itself would not be "constructing, operating, and/or maintaining the
    South Wake Landfill," the Plaintiffs were not required to present a
    perfectly drafted complaint in order to survive a motion to dismiss.
    See Anderson v. Found. for Advancement, Educ. & Employment of
    Amer. Indians, 
    155 F.3d 500
    , 505 (4th Cir. 1998) (explaining that
    notice pleading requires a complaint to be read liberally in favor of
    the plaintiff); see also Fed R. Civ. P. 8(f) ("All pleadings shall be so
    construed as to do substantial justice."). Of course, the Plaintiffs were
    obliged to give notice to the defendants that they sought to enjoin the
    DENR Defendants’ involvement in the South Wake Landfill. And
    they fulfilled that obligation by asserting that "[t]his action challenges
    defendants’ approval, funding and construction of a landfill in plain-
    tiffs’ community . . . [and] [p]laintiffs seek declaratory and injunctive
    relief against the North Carolina Department of Environment and
    Natural Resources." (emphasis added). In these circumstances, the
    Plaintiffs adequately pleaded their request for injunctive relief against
    the DENR Defendants. Cf. Martin v. Deiriggi, 
    985 F.2d 129
    , 135 (4th
    Cir. 1993) (concluding that plaintiff placed defendant on notice of liq-
    uidated damages claim because "[t]he six page complaint at issue here
    discussed liquidated damages in two different paragraphs").
    This case is not unique: the DENR Defendants are state officials
    of North Carolina, acting in their official capacities. The Plaintiffs
    simply seek to enjoin them from engaging in what are alleged to be
    ongoing violations of federal law. The Plaintiffs adequately asserted
    claims for injunctive relief against the DENR Defendants under Ex
    parte Young, and the court erred in dismissing those claims.
    FRANKS v. ROSS                           21
    IV.
    Pursuant to the foregoing, we reverse the district court’s denial of
    leave to file the Second Amended Complaint, its dismissal of the Fed-
    eral Claims against Wake County, and its award of sovereign immu-
    nity to the DENR Defendants. We affirm its dismissal of the State
    Claim against Wake County, and we remand for such further proceed-
    ings as may be appropriate.16
    AFFIRMED IN PART, REVERSED
    IN PART, AND REMANDED
    16
    We leave to the parties and the district court any issue of whether
    abstention may be appropriate in the circumstances presented here.
    

Document Info

Docket Number: 01-2354

Citation Numbers: 313 F.3d 184, 2002 WL 31716402

Judges: Motz, King, Beezer, Ninth

Filed Date: 12/4/2002

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (30)

kenneth-r-edwards-v-city-of-goldsboro-chester-hill-individually-and-in , 178 F.3d 231 ( 1999 )

lynn-martin-secretary-of-labor-united-states-department-of-labor-v , 985 F.2d 129 ( 1993 )

research-triangle-institute-v-the-board-of-governors-of-the-federal , 132 F.3d 985 ( 1997 )

justina-ghartey-v-st-johns-queens-hospital-local-1199-drug-hospital , 869 F.2d 160 ( 1989 )

new-hanover-township-paradise-watchdogs-beverly-ream-individually-and-as , 992 F.2d 470 ( 1993 )

ge-investment-private-placement-partners-ii-a-limited-partnership , 247 F.3d 543 ( 2001 )

paull-anderson-v-foundation-for-advancement-education-and-employment-of , 155 F.3d 500 ( 1998 )

Walker v. United Parcel Service, Inc. , 240 F.3d 1268 ( 2001 )

michael-j-whittle-james-calandrillo-v-local-641-international , 56 F.3d 487 ( 1995 )

quince-orchard-valley-citizens-association-inc-west-riding-citizens , 872 F.2d 75 ( 1989 )

hcmf-corporation-heritage-hall-holding-limited-partnership-heritage-hall , 238 F.3d 273 ( 2001 )

charter-federal-savings-bank-v-office-of-thrift-supervision-director-in , 976 F.2d 203 ( 1992 )

samuel-antrican-minor-alana-antrican-minor-by-their-next-friend-angela , 290 F.3d 178 ( 2002 )

Lynam v. Livingston , 257 F. Supp. 520 ( 1966 )

fed-sec-l-rep-p-97402-38-fed-r-evid-serv-462-united-states-of , 989 F.2d 1390 ( 1993 )

William E. Wilson v. Westinghouse Electric Corporation , 838 F.2d 286 ( 1988 )

john-h-rowe-jr-administrator-of-the-estate-of-larry-mitchell-rowe , 421 F.2d 937 ( 1970 )

George W. Bell, Jr., James E. Brewton, Plaintiffs-... , 473 F.2d 869 ( 1973 )

security-insurance-company-of-new-haven-conn-and-ray-e-trappman-and , 338 F.2d 444 ( 1964 )

Ridgeway v. INTERN. BROTH. OF ELEC. WKRS., ETC. , 466 F. Supp. 595 ( 1979 )

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