            Case: 12-14883   Date Filed: 03/26/2013   Page: 1 of 9


                                                       [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                              _____________

                             No. 12-14883
                         Non-Argument Calendar
                            _____________

                   D. C. Docket No. 4:12-cv-00294-VEH

CHARLES A. BROWN,
LISA M. BROWN,
RONALD L. COLLINS,

                                                      Plaintiffs-Appellants,

                                   versus

TENNESSEE VALLEY AUTHORITY,

                                                      Defendant-Appellee.

                             ______________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                             ______________

                             (March 26, 2013)


Before DUBINA, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.


PER CURIAM:
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      Appellants Charles A. Brown and Lisa M. Brown, husband and wife, and

Appellant Ronald L. Collins (collectively “Appellants”) challenge the district

court’s dismissal of their amended complaint against Appellee Tennessee Valley

Authority (“TVA”). For the reasons that follow, we affirm the dismissal.

                                         I.

      Appellants own land adjacent to Lake Guntersville in Scottsboro, Alabama.

TVA owns the land beneath the lake and land along the shoreline up to the 600-

foot contour line. According to the complaint, several years ago, a TVA employee,

Richard Thrasher, erroneously told Mr. Brown that TVA “could not” issue a

permit allowing the Browns to build a boathouse on the Browns’ preferred site on

TVA land adjacent to the Browns’ property. Thrasher explained that the preferred

site was a protected wetland. In reliance upon Thrasher’s statement, the Browns

did not formally request a permit from TVA to build a boathouse at their preferred

site. Instead, Mr. Brown made costly revisions to his plans for his property. He

received a TVA permit to build and constructed a boathouse in a less desirable

location to the west of his property. He also modified the subdivision of his parcel

to accommodate the future construction of boathouses in areas allowed by TVA.

The Browns allege that these modifications decreased the value of the subdivided

lots. They sold one lot to a third party at a lower price than they would have sold

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it, absent the modifications. That party sold the lot to Appellant Ronald L. Collins,

who still owns the property.

      In March 2010, Appellants learned that TVA granted construction permits to

Appellants’ neighboring landowners in the location where Thrasher represented

that TVA would not allow boathouse construction. TVA issued these permits

without notifying Appellants. Collins claims that he owns an intervening parcel of

land between the shoreline and the neighbors, that this ownership interest prohibits

TVA from permitting construction without his consent, and that he does not

consent to the construction. The neighboring landowners did not actually begin

construction, and their permits expired after 18 months by operation of law.

Appellants and their neighbors are involved in state court litigation concerning

their property rights as they relate to the adjoining TVA-owned site for proposed

boathouse construction.

      Appellants filed the underlying complaint and amended complaint in federal

court seeking injunctive and declaratory relief concerning the TVA’s issuance of

construction permits on land adjacent to their properties. Further, the Browns

sought various damages in tort as a result of their reliance upon Thrasher’s




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misrepresentation. 1 TVA filed a Federal Rule of Civil Procedure 12(b)(6) motion

to dismiss the amended complaint. While the motion was pending, the district

court requested supplemental briefing on the issue of standing. After hearing oral

argument, the district court dismissed Collins’s tort claims because he suffered no

damages as a result of Thrasher’s alleged misrepresentation; Collins’s and the

Browns’ claims for declaratory and injunctive relief because their claims became

moot upon the expiration of the neighboring landowners’ building permits; and the

Browns’ tort claims because the Browns lacked standing as their alleged damages

were not fairly traceable to TVA. Appellants timely brought the instant appeal.

                                                 II.

       We review de novo the dismissal of a case for mootness, Christian Coalition

of Fla., Inc. v. United States, 662 F.3d 1182, 1188 (11th Cir. 2011), or lack of

standing, Ga. State Conference of NAACP Branches v. Cox, 183 F.3d 1259, 1262

(11th Cir. 1999).

                                                III.

       On appeal, Appellants present two arguments: (A) that the district court’s

finding of mootness was improper; and (B) that in finding a lack of standing, the


       1
          At oral argument in the district court, Plaintiffs’ counsel conceded that Collins suffered
no money damages as a result of Thrasher’s misrepresentations, and thus, the tort claims apply
solely to the Browns.
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district court incorrectly concluded that TVA could not be subject to liability for

Thrasher’s statement concerning TVA permitting, which is a discretionary

governmental function. We address Appellants’ arguments in turn.

                                         A.

      The Constitution limits the jurisdiction of federal courts to actual cases and

controversies. Yunker v. Allianceone Receivables Mgmt., Inc., 701 F.3d 369, 372

(11th Cir. 2012). When a case no longer presents a live controversy, the court can

no longer give meaningful relief to the plaintiff, and the case is moot. Id. The

district court found that Appellants’ claims for equitable relief were moot because

the TVA-issued permits to the neighboring landowners expired. The district court

reasoned that the possibility that the neighbors would petition TVA for new

permits was too speculative, and even if TVA issued new permits in the future,

Appellants could petition the court for review at that time. We agree that the

expiration of the permits moots Appellants’ claims against TVA for injunctive or

declaratory relief.

      Appellants contend that their claims fall under an exception to the mootness

doctrine because their requested injunctive relief poses a challenge to the TVA’s

authority to determine contested property rights while those rights are being

litigated in state court. See Nat’l Parks Conservation Ass’n, Inc. v. U.S. Army

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Corps of Eng’rs, 574 F. Supp. 2d 1314, 1322–23 (S.D. Fla. 2008) (discussing

expired permit cases which reject application of the mootness doctrine). TVA

responds that Appellants failed to raise this argument in the district court. Even if

we choose to consider the argument, TVA contends that federal regulations

empower it to issue permits to a party even when that party’s ownership or

property rights are challenged. See 18 C.F.R. § 1304.2(a). Appellants view the

same regulations as preventing TVA from issuing permits to a party whose

property rights are disputed.

      After reviewing Appellants’ response to the district court’s order requesting

briefing on the mootness issue, and after reviewing Appellants’ assertions to the

court at oral argument, it appears that TVA is correct that Appellants did not raise

their argument in the district court. Because we may, but generally do not, review

issues which are raised for the first time on appeal, we elect not to consider

Appellants’ argument. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1331–32 (11th Cir. 2004). We therefore offer no opinion as to whose

interpretation of 18 C.F.R. § 1304.2(a) is correct. The district court’s dismissal of

the declaratory and injunctive relief claims on mootness grounds stands.

                                          B.



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      To have standing, a plaintiff must show that the injury he has suffered is

fairly traceable to the defendant’s challenged action. Fla. Wildlife Fed’n, Inc. v. S.

Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011). The Browns’ tort

claims against TVA arise from Thrasher’s representation that TVA “could not”

issue a permit for boathouse construction on the Browns’ preferred site. The

district court found that (1) “those statements were outside of Mr. Thrasher’s

authority,” and (2) TVA’s permitting process is a discretionary activity for which

the TVA cannot be held liable. [R. 34 at 7.] Consequently, the district court

determined that the Browns lacked standing to sue for damages in tort.

      The Browns argue that Thrasher’s statement did not exceed his authority,

and that he was not engaged in a discretionary activity entitling TVA to immunity

from suit. TVA contends that Thrasher’s alleged misrepresentation was made in

the course of TVA’s administration of a discretionary permitting program, and

thus, TVA cannot be held liable. Alternatively, they contend that Thrasher’s

statement was true and therefore non-actionable under Alabama tort law.

      At present and at the time of the alleged misrepresentation, Thrasher had no

authority to approve or deny a permit application. Even if we attribute Thrasher’s

statement to TVA for liability purposes, TVA would still not be liable. Section

26a of the federal statute creating the TVA empowers the TVA to regulate

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development along the Tennessee River system. 16 U.S.C. § 831y-1. TVA has

promulgated regulations governing the permitting of structures, including

boathouses, along TVA waterways like Lake Guntersville. Among TVA’s

regulations is its formal permitting process at issue in this case. See 18 C.F.R.

§§ 1304.2–1304.11. Courts have held that TVA’s discretionary decisions and

functions, like the administration of a permitting program, are not subject to

judicial review. See, e.g., N. Ala. Elec. Coop. v. TVA, 862 F. Supp. 2d 1291, 1301

(N.D. Ala. 2012) (citing and discussing Peoples Nat’l Bank of Huntsville, Ala. v.

Meredith, 812 F.2d 682, 685 (11th Cir.1987)). While Thrasher did not render an

official permitting decision, which would not be subject to judicial review, [see R.

34 at 7 (citing Ala.-Tenn. Forest Res. Ltd. P’ship v. TVA, No. CV 93-N-2713-NE,

Mem. Op. at 17 (N.D. Ala. Mar. 30, 1995))], Thrasher’s alleged misrepresentation

was made in the course of the TVA’s administration of its permitting program.

Thus, because TVA cannot be held liable for Thrasher’s statement to Mr. Brown,

we agree with the district court and TVA that the Browns have not alleged facts

that would support damages fairly traceable to TVA. See Whitmore v. Arkansas,

495 U.S. 149, 155–56, 110 S. Ct. 1717, 1723 (1990) (explaining that it is the

plaintiff’s obligation to clearly set forth facts establishing standing). The district

court correctly dismissed the Browns’ tort claims for lack of standing.

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                                        IV.

      For the foregoing reasons, we affirm the district court’s judgment of

dismissal of Appellants’ amended complaint against TVA.

      AFFIRMED.




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