Assn Commty Orgn Ref v. US Army Corps Engs ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30569
Summary Calendar
ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW,
(ACORN),
Plaintiff-Appellant,
versus
UNITED STATES ARMY CORPS OF ENGINEERS; RODNEY E. SLATER,
United States Secretary of Transportation; U.S. DEPARTMENT OF
TRANSPORTATION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-108-K
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December 19, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
The Association of Community Organizations for Reform Now
(“ACORN”) appeals the district court’s summary judgment dismissal
of its suit seeking a preliminary injunction enjoining lock-pile
testing and further construction with respect to the lock
replacement and canal expansion project at the Inner Harbor
Navigational Canal (“the IHNC”) in New Orleans, Louisiana. ACORN
has failed to raise on appeal, and has therefore abandoned, its
claim that the Environmental Impact Statement prepared by the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-30569
-2-
United States Army Corps of Engineers failed to address the
disproportionate adverse effects the IHNC project would have on
minority communities, in violation of the National Environmental
Protection Act, Council on Environmental Quality regulations, and
Executive Order 12898. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
ACORN’s only remaining claim is that the United States
Department of Transportation (“the DOT”), through the United States
Coast Guard, violated the DOT Act by failing to conduct a § 4(f)
analysis of the use of historic sites by the bridge phase of the
IHNC project prior to the commencement of construction on the
project. Under § 4(f) of the DOT Act, now codified at 49 U.S.C. §
303(c):
The Secretary [of the DOT] may approve a
transportation program or project . . .
requiring the use of . . . land of an historic
site of national, State, or local significance
. . . only if–
(1) there is no prudent and feasible
alternative to using that land; and
(2) the program or project includes all
possible planning to minimize harm to the . . .
historic site resulting from the use.
“The United States is immune from suit except as it waives its
sovereign immunity.” Wilkerson v. United States, 67 F.3d 112, 118
(5th Cir. 1995). “Congress sets forth the terms of those waivers
and courts may not exercise subject matter jurisdiction over a
claim against the federal government except as Congress allows.”
Id. A waiver of immunity “‘must be unequivocally expressed in
statutory text . . . [and] will be strictly construed, in terms of
its scope, in favor of the sovereign.’” Rothe Dev. Corp. v. United
No. 00-30569
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States Dep’t of Defense, 194 F.3d 622, 624 (5th Cir. 1999) (citing
Lane v. Pena, 518 U.S. 187, 192 (1996)).
Neither ACORN’s filings in the district court nor its briefs
in this court identify any statutory provision waiving the United
States’ sovereign immunity with respect to this suit for injunctive
relief. We are left to presume that ACORN’s suit was brought
pursuant to the waiver of immunity set forth in 5 U.S.C. § 702.
See Rothe Dev. Corp., 194 F.3d 622 at 624. “A waiver [of immunity]
as to injunctive relief . . . can be found in § 702 of the
Administrative Procedure Act, which permits parties ‘suffering
legal wrong because of agency action’ to file an ‘action in a court
of the United States seeking relief other than money damages.’”
Id. (citing 5 U.S.C. § 702).
The Administrative Procedure Act, however, does not subject
every action by an agency to judicial review. See
Taylor-Callahan-Coleman Counties Dist. Adult Prob. Dep’t v. Dole,
948 F.2d 953, 956 (5th Cir. 1991). “Section 704 of that Act limits
judicial review to ‘[a]gency action made reviewable by statute and
[to] final agency action for which there is no adequate remedy in
a court....’" See id. (citing 5 U.S.C. § 704).
ACORN has not identified, and we have not discovered, a
statute making reviewable the DOT’s failure to conduct a § 4(f)
analysis with respect to a project it has not yet approved, such as
the IHNC project’s bridge phase. Moreover, ACORN has not alleged,
nor is there an indication, that the DOT’s failure to conduct a §
4(f) analysis of the not-yet-approved bridge phase of the IHNC
project constituted a final agency action. See Veldhoen v. United
No. 00-30569
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States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994) (holding that
a final agency action “imposes an obligation, denies a right, or
fixes a legal relationship”).
In light of the foregoing, ACORN has not shown that the
defendants waived their sovereign immunity from suit. See
Taylor-Callahan-Coleman Counties Dist. Adult Prob. Dep’t, 948 F.2d
at 956. The district court’s judgment is AFFIRMED on the
alternative ground of lack of subject-matter jurisdiction. See
Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (court of
appeals may affirm district court’s judgment on any basis supported
by the record).
AFFIRMED.