of ongoing federal involvement and control there is no jurisdiction for a federal court to order a federal agency to undertake NHPA review or to enjoin the project of private actors. This is not an "otherwise living case" and the redress sought is unavailable.
This court has located no real substantive case law regarding the Boundary Revision Act, but it is persuaded that plaintiffs have no action under it, because (1) again, it is similarly directed at a federal agency and does not provide for after the fact remedies once that agency is no longer involved, and (2) it is this court's understanding that the very land exchange objected to here was authorized by Congress in that act, when it explicitly accepted the boundaries suggested in the study and explicitly authorized the exclusion and disposal of excluded parcels (among them the 7.5 acre one) specified in the study.
III. The State Claims
Plaintiffs have also alleged that the defendants have failed to comply with the Pennsylvania Constitution and municipal ordinances and are liable to plaintiffs under tort law.
A. The Claims Under the Municipal Ordinances and the Pennsylvania Constitution.
Plaintiffs have alleged that the federal defendants violated Gettysburg borough planning ordinances enacted under the authority of the Pennsylvania Municipal Planning Code, 53 Pa. Cons. Stat. Ann. § 10101, et seq. According to plaintiffs, these borough ordinances require submission and approval of proposed subdivision and land development projects. Plaintiffs claim that the federal defendants' conveyance of the 7.5 acre parcel was a subdivision and that prior borough approval should be sought for it. Plaintiffs also allege that the federal defendants have violated Article I, Section 27 of the Pennsylvania Constitution, which states:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people. . . . As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
See Borough of Moosic v. Pennsylvania Pub. Util. Comm'n, 59 Pa. Commw. 338, 429 A.2d 1237, 1239 (1981). The federal defendants raise a defense of sovereign immunity.
It appears from the complaint and pleadings that this suit is one against federal agencies and their administrators in their official capacities. Generally, an action against such federal officers is deemed a suit against the federal government if the requested judgment would operate against the government. Hawaii v. Gordon, 373 U.S. 57, 58, 10 L. Ed. 2d 191, 83 S. Ct. 1052 (1963). A judgment operates against the government when it would affect the government's fiscal, proprietary, or programmatic interests or interfere with public administration. See Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 14 Federal Practice & Procedure § 3655 at 218; Gordon, 373 U.S. at 58 (where relief sought would require federal officer's official action, affect public administration of government agencies and cause disposition of government property, suit was one against federal government); Land v. Dollar, 330 U.S. 731, 738, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947) (where relief sought would expend itself from public treasury or domain, or interfere with public administration, suit was one against the sovereign). In this instance, the relief sought, apparently a recision of the land exchange, and an order to obtain municipal and/or state approval before it could recur, would operate against the federal government: it would affect agency administration, require official acts by the federal agencies involved, and affect the disposition of federally owned property.
When the real party in interest is the federal government, sovereign immunity applies, unless Congress has waived such immunity through the passage of statutes expressly authorizing such actions. United States v Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 587-88, 85 L. Ed. 1058, 61 S. Ct. 767 (1941)); Jaffee v. United States, 592 F.2d 712, 718 (3d Cir.), cert. denied, 441 F.2d 961 (1979). Such statutory waivers are strictly construed and not lightly extended. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983).
Federal defendants argue that there is no federal statutory waiver of immunity applicable here. Plaintiffs have not responded to this argument.
Although federal defendants have not raised this point, the Administrative Procedure Act ("APA") has been held to constitute an express waiver of sovereign immunity under certain circumstances. The relevant provisions of the APA are as follows:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof . . . [by action in federal court] seeking relief other than money damages . . . [Such] an action . . . shall not be dismissed . . . on the ground that it is against the United States . . . .
5 U.S.C. § 702. See Jaffee, 592 F.2d at 718. This waiver of immunity for non-monetary claims against federal agencies applies where the action involves matters which arise under the Constitution, laws or treaties of the United States, as per 28 U.S.C. § 1331. Id. at 718, n.12. See also Acosta v. Gaffney, 558 F.2d 1153, 1155-56 (3d Cir. 1977) (APA not independent source of subject matter jurisdiction, but confers standing on party suffering injury because of agency action or adversely affected by agency action within meaning of Immigration and Naturalization Act).
With regard to the borough ordinance and state constitutional claim, the relevant agency act was not an agency act "within the meaning of a relevant [federal] statute," or arising under the Constitution or federal law, but an omission to act under local and state law. Hence, the court believes that the Administrative Procedure Act's waiver of immunity would not extend to the current situation, and that the federal defendants are indeed immune from these claims based on state law.
B. Federal Torts Claim Action
Plaintiffs originally alleged a state tort claim of fraud against the federal defendants, but "recognizing the doctrine of sovereign immunity," they have substituted a tort claim for the intentional infliction of emotional distress. As plaintiffs realize, the Federal Tort Claims Act, the statute which waives the doctrine of sovereign immunity of the United States from suit for tort injuries caused by its employees, recognizes a number of exceptions to its statutory waiver. These exceptions, which are listed in 28 U.S.C. § 2680(h), include claims "arising out of misrepresentation . . . [and] deceit." 28 U.S.C. 2680(h).
Federal defendants allege that plaintiffs' new claim of intentional infliction of emotional distress is merely their former fraud claim in disguise, and should be excluded on that basis. They urge the court to look beyond the plaintiffs' stated tort
theory to the actual substantive allegations, which arise out of fraud. There is indeed a significant legal precedent in Federal Tort Claims Act cases for courts to look beyond the asserted legal theories to the substance of the acts claimed, in order to determine if the claim in reality arises from one of the legal theories excluded by 28 U.S.C. § 2680. See, e.g., Sheehan v. United States, 896 F.2d 1168, 1170-73 (9th Cir. 1990); Fitch v. United States, 513 F.2d 1013, 1015 (6th Cir.), cert. denied, 423 U.S. 866, 46 L. Ed. 2d 95, 96 S. Ct. 127 (1975); Cross Bros. Meat Packers v. United States, 533 F. Supp. 1319, 1321-22 (E.D. Pa. 1982), rev'd on other grounds, 705 F.2d 682 (3rd Cir. 1983). However, this step is unnecessary here. This court is persuaded that it lacks the jurisdiction to address plaintiffs' federal tort claim.
Federal defendants correctly state that the Federal Tort Claims Act (the "Act") contains a procedural prerequisite to a court action under it: the claimant must first submit his or her claim, stating a sum certain in damages,
to the appropriate federal agency. That agency must issue a final denial in writing of the claim, or fail to dispose of it within six months (deemed a denial). 28 U.S.C. § 2675 (a). This requirement for administrative exhaustion has been strictly construed by courts which view it as a jurisdictional bar. See Livera v. First Nat. State Bank, 879 F.2d 1186, 1194 (3d Cir.), cert. denied, Livera v. Small Business Admin., 493 U.S. 937, 107 L. Ed. 2d 322, 110 S. Ct. 332 (1989); United States v. Burzynski Cancer Research Inst., 819 F.2d 1301, 1306 (5th Cir.), reh'g denied en banc, 829 F.2d 1124 (5th Cir. 1987), cert. denied, Wolin v. United States, 484 U.S. 1065, 98 L. Ed. 2d 990, 108 S. Ct. 1026 (1988); Tuttle v. United States Postal Serv., 585 F. Supp. 55, 56 (M.D. Pa. 1983), aff'd without op., 735 F.2d 1351 (3d Cir. 1984).
In this instance, plaintiffs have characterized their intentional infliction of emotional distress claim as one under the Federal Tort Claims Act, see Plaintiffs' Response to Federal Defendants' Motion to Dismiss at 21-22, but neither their complaint nor any of their briefs allege that they have undertaken the requisite prior administrative route at the agency level. In fact, federal defendants state that plaintiffs have not exhausted this route. Hence, this court has no jurisdiction to consider the federal claim for intentional infliction of emotional distress.
IV. The Remaining Defendants
As a result of the foregoing, all claims over which this court has original jurisdiction will be dismissed. With regard to the remaining state law claims against the private defendants, the court declines to exercise supplemental jurisdiction over them, and will remand these claims to state court. See 28 U.S.C. § 1367.
SYLVIA H. RAMBO
United States District Judge
Dated: July 2, 1992.
ORDER - July 2, 1992, Filed
In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:
1) The motion to dismiss filed by the federal defendants is GRANTED:
a) Plaintiffs' claims against federal defendants based on NEPA, NHPA, and the Boundary Revision Act are DISMISSED because the redress sought is no longer available under these statutes.
b) Plaintiffs' claims against the federal defendants based on the Federal Torts Claim Act are DISMISSED for lack of jurisdiction.
c) Plaintiffs' claims against the federal defendants based on the state Constitution and municipal ordinances are DISMISSED on the basis of sovereign immunity.
2) The motion to dismiss filed by defendants Gettysburg
College and Gettysburg Railroad are GRANTED IN PART as follows:
a) Plaintiffs' claims against the Gettysburg Railroad and Gettysburg college based on NEPA, NHPA and the Boundary Revision Act are DISMISSED.
b) Plaintiff's claims against the Gettysburg Railroad and Gettysburg College based on municipal ordinances, the Pennsylvania Constitution, and state tort law are hereby transferred to the Court of Common Pleas of Adams County, Pennsylvania. The Clerk of Court is directed to effect the transfer.
3) Plaintiffs' motion for extension of discovery time is now deemed MOOT.
SYLVIA H. RAMBO
United States District Judge
Dated: July 2, 1992.