     Case: 19-30213   Document: 00515278690     Page: 1   Date Filed: 01/21/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit


                                 No. 19-30213                        FILED
                                                              January 21, 2020
                                                                Lyle W. Cayce
STATE OF LOUISIANA,                                                  Clerk

             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

             Defendant - Appellee




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before DAVIS, SMITH, and COSTA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      The State of Louisiana sued the United States for injunctive relief
alleging that the United States Army Corps of Engineers (“Corps”) has failed
to maintain the Gulf Intracoastal Waterway in compliance with the River and
Harbor Improvements Act. The State asserts that the United States has
waived its sovereign immunity for such a claim under the Administrative
Procedure Act (“APA”), specifically 5 U.S.C. § 702, because the State has been
“adversely affected or aggrieved by agency action within the meaning of a
relevant statute.” We conclude that the State fails to satisfy the requirements
for the waiver of sovereign immunity under § 702 in that it does not challenge
“agency action” and the State’s alleged injury does not fall within the “zone of
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                                      No. 19-30213
interests” of the River and Harbor Improvements Act. We additionally hold
that the State’s “failure to act” claim is not subject to judicial review under the
APA because the Corps is not legally required to preserve and/or maintain the
Gulf Intracoastal Waterway at a certain width. Therefore, we AFFIRM the
district court’s judgment dismissing the State’s complaint under Rule 12(b)(1)
for lack of subject matter jurisdiction.
                                    I. Background
       In 1925 the United States Congress enacted the River and Harbor
Improvements Act (“Act”), which authorized the construction of the Gulf
Intracoastal Waterway (“Waterway”), 100 feet in width, from New Orleans to
Galveston. 1 In 1942 Congress expanded the authorized width of the Waterway
to 125 feet. 2 The United States, in furtherance of the Act’s mandate, entered
into a servitude agreement with Louisiana landowners, obtaining a servitude
limited to 300 feet in width affecting property in Vermilion Parish. The State
later acquired property known as White Lake Wetlands Conservation Area
(“White Lake Property”) in Vermilion Parish. The United States’ servitude
runs across a portion of the White Lake Property.
       In its complaint, 3 the State alleges that the Corps has failed to confine
the Waterway to the parcel of ground upon which it holds its servitude and
that the Waterway now extends onto land owned by the State. The State
asserts that jurisdiction is proper under § 702 of the APA because the loss of


       1 River & Harbor Improvements Act of 1925, Pub. L. No. 68-585, ch. 467, 43 Stat. 1186,
1187; H.R. Rep. No. 1122 (1925).
       2 Pub. L. No. 77-675, ch. 520, 56 Stat. 703, 703 (1942).
       3 The State’s initial complaint asserted a claim against the United States under the

Federal Tort Claims Act (“FTCA”). In response to the United States’ motion to dismiss
asserting that it had not waived its sovereign immunity under the FTCA, the State requested
leave to amend its complaint to set forth claims under the Little Tucker Act and the APA.
The district court granted the State leave to amend and denied the United States’ motion to
dismiss without prejudice to re-urge the motion later. In its amended complaint, at issue in
this appeal, the State asserts a claim against the United States under the APA only.
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its property “aris[es] from inaction on the part of the [Corps]” and a “continuing
failure to act to rectify the physical encroachment in violation of Defendant’s
legal duties owed to Plaintiff.” The State also asserts that jurisdiction is proper
under § 702 because it “is not seeking monetary damages, rather injunctive
relief.” The State requests an injunction requiring abatement and removal of
the encroachment, as well as restoration of the property to its prior condition.
      In response to the State’s complaint, the United States filed a motion to
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) based on its
sovereign immunity. The United States asserted that in the absence of a
waiver of its sovereign immunity, the district court lacked subject matter
jurisdiction over a claim against it. The United States argued that although
the APA provides a limited waiver of its sovereign immunity, express
exceptions to the waiver found in § 704 of the APA deprived the district court
of subject matter jurisdiction. Specifically, the United States contended that
the State has an adequate remedy for an alleged breach of the servitude
agreement under the Tucker Act in the Court of Federal Claims. The United
States further argued that there has been no “final” agency action by the Corps.
      The State responded by asserting that § 702 of the APA waives the
United States’ sovereign immunity where a person is “adversely affected or
aggrieved by agency action within the meaning of a relevant statute” and seeks
nonmonetary relief. The State argued that under that provision of the § 702
waiver, there is no requirement of “finality.” It further contended that its claim
arises from a “relevant statute,” the River and Harbor Improvements Act
(“Act”) and its amendments, which allocated funds for and authorized the
construction and maintenance of the Waterway. The State further contended
that the Corps has failed to act on its responsibility to maintain the Waterway
within the agreed-to and authorized parameters.


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      In reply, the United States argued that neither the Act nor its
amendments provide the State with any statutory cause of action. The United
States additionally asserted that neither the Act nor its amendments impose
any affirmative obligation on the Corps with regard to the width of the
Waterway. Furthermore, the United States contended that the State’s interest
did not fall within the “zone of interests” of the Act or its amendments. The
United States finally maintained that “failure to act” claims implicate § 706(1)
of the APA which provides that the “reviewing court shall . . . compel agency
action unlawfully withheld or unreasonably delayed.”                  The United States
asserted that because there is no statute or regulation requiring the Corps to
maintain the Waterway as requested by the State, then it cannot be compelled
to do so, and its sovereign immunity has not been waived under the APA.
      The magistrate judge issued a report recommending that the United
States’ motion be granted. Over the State’s objection, the district court adopted
the report and recommendation and dismissed the State’s complaint for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1). The State timely
appealed.
                                    II. DISCUSSION
      This court reviews a district court’s Rule 12(b)(1) dismissal for lack of
subject matter jurisdiction de novo. 4 “Whether the United States is entitled to
sovereign immunity is a question of law which this court reviews de novo.” 5
The State contends that the United States has waived its sovereign immunity
in this matter under § 702 of the APA.               Section 702 of the APA “waives
sovereign immunity for actions against federal government agencies, seeking




      4   Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir. 2014).
      5   Id. at 488.
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nonmonetary relief, if the agency conduct is otherwise subject to judicial
review.” 6 Section 702, entitled “Right of review,” provides:
      A person [1] suffering legal wrong because of agency action, or
      [2] adversely affected or aggrieved by agency action within the
      meaning of a relevant statute, is entitled to judicial review thereof.
      An action in a court of the United States seeking relief other than
      money damages and stating 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 . . . on the
      ground that it is against the United States . . . . 7

      As explained by the Supreme Court in Lujan v. National Wildlife
Federation, 8 § 702 of the APA contains two separate requirements. First, the
person claiming a right to sue must identify some “agency action.” 9 As defined
by § 551(13) of the APA, “agency action” includes “an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 10
Second, the party seeking review under § 702 must show that he has suffered
legal wrong because of the challenged agency action or that he has been
“adversely affected or aggrieved” by the challenged agency action “within the
meaning of a relevant statute.” 11 The Lujan Court explained that “to be
‘adversely affected or aggrieved . . . within the meaning’ of a statute, the
plaintiff must establish that the injury he complains of . . . falls within the
‘zone of interests’ sought to be protected by the statutory provision whose
violation forms the legal basis for his complaint.” 12



      6 Id.
      7 5 U.S.C. § 702.
      8 497 U.S. 871 (1990).
      9 Id. at 882.
      10 5 U.S.C. § 551(13).
      11 Lujan, 497 U.S. at 882.
      12 Id. at 883 (citation omitted). Although Lujan involved Article III standing under

the APA, and not sovereign immunity, the Court’s decision required interpretation of the
same APA provisions at issue here.
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                                           No. 19-30213
         As to the first requirement, the State fails to point to any identifiable
“agency action” within the meaning of § 702. The State contends that the
Corps “has failed to maintain, preserve, and repair the Waterway so as to not
infringe on Louisiana’s property rights.” As noted by one of our sister circuits,
however, the term “action” as used in the APA “is a term of art that does not
include all conduct such as, for example, constructing a building, operating a
program, or performing a contract.” 13                Moreover, the agency action being
challenged must be “circumscribed [and] discrete.” 14 As this court has noted,
in interpreting the APA, Lujan “announced a prohibition on programmatic
challenges—challenges that seek wholesale improvement of an agency’s
programs by court decree, rather than through Congress or the agency itself
where such changes are normally made.” 15
         The State’s allegations focus on decades of inaction by the Corps in
failing to keep the Waterway from expanding beyond the width authorized by
Congress in 1942. The State’s “complaint fails to point to any identifiable
action or event.” 16           Consequently, the State has not satisfied the first
requirement under § 702 of identifying specific agency action and, thus, fails
to establish the United States has waived its sovereign immunity in this
matter. 17
         We also conclude that the State has not established that it meets the
second requirement under § 702 for a waiver of sovereign immunity, i.e., that


         13   Vill. of Bald Head Island v. U.S. Army Corps of Eng’rs, 714 F.3d 186, 193 (4th Cir.
2013).
         14   Id. at 194 (internal quotation marks and citation omitted).
         15   Alabama-Coushatta Tribe, 757 F.3d at 490 (internal quotation marks and citation
omitted).
          Id. (internal quotation marks and citation omitted).
         16

         Id. at 490–91 (holding that plaintiff failed to point to “any identifiable ‘agency action’
         17

within the meaning of § 702” because complaint brought “a challenge to the federal
management of the natural resources on the land in question” and “not to a particular and
identifiable action taken by the Government”).
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it has been adversely affected and aggrieved within the meaning of a relevant
statute. As stated by the Lujan Court, to satisfy this requirement “the plaintiff
must establish that the injury he complains of . . . falls within the ‘zone of
interests’ sought to be protected by the statutory provision whose violation
forms the legal basis for his complaint.” 18 Louisiana asserts that it has been
adversely affected and aggrieved within the meaning of a “relevant statute”—
the River and Harbor Improvements Act—because the Act (and its
amendment) provided for a width of 125 feet.                Under the Lujan Court’s
explanation of § 702’s “adversely affected” clause, however, Louisiana must
establish that the encroachment of its land “falls within the ‘zone of interests’
sought to be protected by” the Act. 19
       Review of the legislative history of the River and Harbor Improvements
Act and its amendment indicate that the purpose of the construction of the
Waterway was to promote commerce, and the purpose of the amendment
expanding the Waterway was to facilitate the transport of materials and
supplies for the military during World War II. Specifically, the Act provided
as an explanation for its enactment that “the railroads of the country are
unable to carry all of its commerce and we can only provide for transportation
of all the shipments offered by utilizing our waterways.” 20 The amendment to
the Act providing for the enlargement of the Waterway states that it was
enacted “to promote the national defense and to promptly facilitate and protect
the    transport    of   materials     and    supplies    needful       to   the   Military
Establishment.” 21       This language indicates that the delineation of the
Waterway to a width of 125 feet was motivated by the need for commerce on a



       18 Lujan, 497 U.S. at 883 (citation omitted).
       19 Id. (citation omitted).
       20 H.R. Rep. No. 68-1122, at 1 (statement of Rep. Dempsey).
       21 56 Stat. at 703.

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                                       No. 19-30213
national scale. The interests of the landowners surrounding the Waterway do
not appear to have been within the Act’s “zone of interests.” 22 Based on the
foregoing, we conclude that the State has not met its burden of establishing
that § 702 of the APA provides for a waiver of the United States’ sovereign
immunity. 23
       In its reply brief and at oral argument, the State insists that it is not
making a programmatic challenge to the Corps’ maintenance of the Waterway.
Instead, the State asserts that it is challenging the Corps’ failure to act in a
discrete way and seeks to compel the Corps to act in accordance with law. The
State asserts that the Corps should be made to carry out “its basic duty to
maintain the [Waterway] banks in the White Lake area, and prevent erosion—
a legally required discrete action.” Specifically, the State contends that under
33 U.S.C. § 426i of the Act, the Corps has a discrete duty to maintain and
repair the Waterway within the specified dimensions and to repair shoreline
erosion in the White Lake area.              As described below, however, such an
argument implicates a different section of the APA, § 706(1), which also has
requirements for judicial review the State fails to satisfy.
       As explained by the Supreme Court in Norton v. Southern Utah
Wilderness Alliance, the APA places limits on “judicial review of agency




       22 Moreover, the only case the State points to regarding the Act’s “zone of interests” is
a district court case which determined that a particular provision of the Act “was enacted for
the benefit of vessels, and with respect to passengers and crews of vessels, as opposed to the
general public.” See Cruise Lines Int’l Ass’n Alaska v. City and Borough of Juneau, 356
F.Supp.3d 831, 847 (D. Alaska 2018) (emphasis added).
        23 Although the State relies heavily on Weyerhaeuser Co. v. United States Fish and
Wildlife Service, 139 S. Ct. 361 (2018), it was not disputed in that case that there was agency
action. The Supreme Court instead addressed a provision that excludes from APA review
“agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). That
APA provision is not at issue here. As we have determined, the State has failed at the
threshold requirement of showing agency action.

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inaction.” 24 “Failures to act are sometimes remediable under the APA, but not
always.” 25 The APA provides relief for a “failure to act” in § 706(1), which
provides that a reviewing court shall “compel agency action unlawfully
withheld or unreasonably delayed.” After examining the definition of agency
action under § 551(13) of the APA and noting that the definition includes a
“failure to act,” the Norton Court determined that “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.” 26 This “required-action” limitation
“rules out judicial direction of even discrete agency action that is not demanded
by law.” 27
      Although the River and Harbor Improvements Act authorized a width of
125 feet for construction of the Waterway, no provision of the Act requires the
Corps to maintain the Waterway at that width. The State contends that under
33 U.S.C. § 426i of the Act, the Corps has a discrete duty to maintain and
repair the Waterway within the specified dimensions and to repair shoreline
erosion in the White Lake area.       Contrary to the State’s contentions, the
statute imposes no such obligation on the Corps. Specifically, § 426i authorizes
the Corps “to investigate, study, plan, and implement structural and
nonstructural measures for the prevention or mitigation of shore damages
attributable to . . . [the] Waterway, if a non-Federal public body agrees to
operate and maintain such measures . . . .” 28
      The plain language of § 426i authorizes the Corps to take measures to
prevent or mitigate shore damage caused by the Waterway; it does not direct
the Corps to take such measures. Moreover, even if the Corps exercises its


      24 542 U.S. 55, 61 (2004).
      25 Id.
      26 Id. at 64.
      27 Id. at 65.
      28 33 U.S.C. § 426i(a).

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discretionary authority to act pursuant to § 426i, the statute facially places the
duty of operating and maintaining any preventative or mitigative measures
not on the Corps, but on the non-Federal public body that agrees to operate
and maintain those measures. In sum, the State’s argument that the Corps’
inaction is subject to judicial review under the APA has no merit.
                               III. Conclusion
      Based on the foregoing, we hold that the United States has not waived
its sovereign immunity under the APA from the State’s claims in this matter.
Accordingly, the district court’s judgment dismissing the State’s complaint for
lack of subject matter jurisdiction under Rule 12(b)(1) is AFFIRMED.




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