The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs seek a declaration that defendant has acted in excess of his statutory authority by issuing a Notice of Violation ("NOV") of the Clean Air Act ("CAA"), 42 U.S.C. § 7401, et seq., and an injunction to prevent defendant from instituting "any civil, administrative, or legal action or proceeding of any sort, in any forum, arising out of or related to the events, transactions, occurrences, or legal relations at issue" in the NOV. (Am. Compl. at 17.) Defendant moves for dismissal on the basis of lack of jurisdiction, arguing that sovereign immunity has not been waived; the action, if justiciable at all, properly lies within the exclusive jurisdiction of a circuit court; and the agency action is not final and therefore non-reviewable. For the reasons stated below, the Court grants defendant's motion and dismisses plaintiffs' complaint for lack of jurisdiction.
In July 2004, the United States Environmental Protection Agency ("EPA") issued a NOV to plaintiffs alleging that a nitric acid manufacturing facility that plaintiffs owned and operated was violating Part C of the CAA, the Ohio State Implementation Plan ("SIP"), the federal New Source Performance Standards ("NSPS") for nitric acid plants, and sections 502 and 503 of the CAA. (Am. Compl. ¶¶ 38, 40, Ex. D.) Plaintiffs claim that this action exceeded defendant's statutory authority because plaintiffs did not violate the statute and regulations and because affirmative defenses prevent enforcement. (Id. ¶¶ 47-73.) While plaintiffs allege that a "decision as to enforcement has been made," they fail to assert that defendant has in fact brought an enforcement action. (Pls.' Opp'n at 2.)
Federal courts are courts of limited jurisdiction that may exercise only those powers authorized by the Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). "'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is [the] power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citations omitted). In a suit where the United States or one of its agencies is a defendant, a waiver of sovereign immunity is a prerequisite to subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586 (1941). Here, the Court is without jurisdiction because plaintiffs have failed to satisfy the requirements for any of three potentially applicable waivers of statutory immunity: (1) the Larson doctrine for ultra vires acts of federal officers; (2) section 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq.; and (3) section 307(b)(1) of the CAA.
In reviewing a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), "the Court must accept the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiffs' favor." Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C. 2000). When opposing a Rule 12(b)(1) motion, plaintiffs have the burden of persuasion to establish by a preponderance of the evidence the existence of subject matter jurisdiction. Id. "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377 (citations omitted).
II. Ultra Vires Acts of a Federal Official and the Larson Doctrine
Plaintiffs attempt to cast their complaint as one that seeks a determination that defendant has acted ultra vires, rather than as a facial attack upon the validity of the NOV issued by the EPA. (See Pls.' Opp'n at 7 ("[Plaintiff] is not appealing the NOV . . . . Rather, [plaintiff] is challenging the Administrator's actions in excess of his legal and statutory authority to enforce . . . CAA requirements.").) Were the Court to blindly accept this characterization, it would have to agree that judicial review would be favored, since "[t]he presumption is particularly strong that Congress intends judicial review of agency action taken in excess of delegated authority." Amgen, Inc. v. Smith, 357 F.3d 103, 111 (D.C. Cir. 2004). Consistent with that presumption, sovereign immunity does not bar a suit challenging the actions of a federal officer who has acted in excess of his legal authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90 (1949) ("[W]here the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. . . . His actions are ultra vires his authority and therefore may be made the object of specific relief . . . without impleading the sovereign . . . ."); see Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996) ("[I]f the federal officer, against whom injunctive relief is sought, allegedly acted in excess of his legal authority, sovereign immunity does not bar a suit.").
However, plaintiffs cannot invoke this narrow exception to the doctrine of sovereign immunity. Although plaintiffs appear to believe that the mere invocation of the words "ultra vires" is sufficient to eviscerate the protections of sovereign immunity, they fail to allege any ultra vires action by defendant. On the contrary, plaintiffs raise a laundry list of defenses to a potential enforcement action. In effect, they contend that defendant has acted ultra vires by issuing a NOV to a party that lacks liability. But as Larson and its progeny make clear: "[I]n [ultra vires] cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient." Larson, 337 U.S. at 690 (emphasis added). See also Amgen, Inc., 357 F.3d at 113 (D.C. Cir. 2004) (allegations that an authorized action was "arbitrary, capricious, or procedurally deficient" are insufficient). Defendant is clearly authorized to issue a NOV "[w]henever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit" or various other requirements or prohibitions. 42 U.S.C. § 7413(a)(1), (3). Thus, defendant acts within his statutory power if he finds a violation, and even if this finding is ultimately found to be in error, as plaintiffs allege, it is still within defendant's statutory authority to issue a notice.*fn1
Furthermore, were the Court to embrace plaintiffs' expansive interpretation of ultra vires action, administrative adjudication would effectively be precluded by artful pleading. In this case, Congress has provided enforcement mechanisms for reviewing alleged violations of the CAA. After the EPA issues a NOV, it may issue an order requiring compliance, issue an administrative penalty, bring a civil enforcement action, or request the Attorney General bring a criminal enforcement action. 42 U.S.C. § 7413(a)(1), (3). Each of these enforcement options provides an opportunity for plaintiffs to raise the very defenses they argue here. See 42 U.S.C. § 7413(a)(4) (requiring EPA to confer with the person to whom the NOV was issued prior to issuing order); 42 U.S.C. § 7413(d)(2)(A) (requiring a hearing on the record before issuing penalties); 42 U.S.C. § 7413(b) (requiring an action in a United States District Court for civil enforcement); 42 U.S.C. § 7413(a)(3)(D) (requiring the Attorney General to commence a criminal action). See also Union Elec. Co. v. EPA, 593 F.2d 299, 304-06 (8th Cir. 1979) (defenses to NOV issued for CAA can be raised in any subsequent enforcement proceedings). If an alleged CAA violator is able to enjoin an agency's nascent enforcement action by merely claiming that the Administrator has acted ultra vires, as plaintiffs attempt to do here, the statutory enforcement mechanisms would be rendered meaningless. This outcome is flatly inconsistent with the notion of administrative adjudication and Congress' intent when enacting section 113 of the CAA.
Thus, plaintiffs cannot merely parrot the phrase ultra vires and thereby benefit from the Larson doctrine and avoid the ...