Charles A. Brown, et al. v. Tennessee Valley Authority

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14883
Non-Argument Calendar
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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.
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Appeal from the United States District Court
for the Northern District of Alabama
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(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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