United States District Court, S.D. Texas, Galveston Division
MANNING ROLLERSON, Plaintiff.
PORT FREEPORT and UNITED STATES ARMY CORPS OF ENGINEERS, Defendants.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
Manning Rollerson ("Rollerson") filed this suit
against the Brazos River Harbor Navigation District of
Brazoria County n/k/a Port Freeport (the "Port")
and the United States Army Corps of Engineers (the "Army
Corps"). Before me is The United States Army Corps of
Engineers' Motion to Dismiss ("Motion to
Dismiss"). See Dkt. 37. After reviewing the
record and the law, I RECOMMEND that the
Army Corps's Motion to Dismiss (Dkt. 37) be
recently issued a Memorandum and Recommendation
("M&R") addressing a Rule 12(b)(6) motion filed
by the Port. See Rollerson v. Port Freeport, No.
3:18-CV-00235, 2019 WL 4394584 (S.D. Tex. Sept. 13, 2019). In
the M&R, I set forth specific facts as pled in Plaintiffs
Second Amended Complaint ("Second Amended
Complaint"). See id at * 1. Because the Army
Corps's Motion to Dismiss concerns the Second Amended
Complaint, I incorporate by reference my previous recitation
of the facts involved in this case. I assume all well-pled
facts as true and view those facts in the light most
favorable to Rollerson. I add the following alleged facts
from the Second Amended Complaint that are relevant to the
disposition of the Army's Corps's Motion to Dismiss.
alleges that the Freeport Harbor Channel Improvement Project
(the "Port's Expansion Project") is funded in
part by the Army Corps. Rollerson contends that he filed an
Administrative Complaint with the Army Corps, complaining
that the Port's Expansion Project did not comply with
Title VI of the Civil Rights Act of 1964 ("Title
VI"), 42 U.S.C. § 2000d et seq. See Dkt.
36 at 43-5. After the Army Corps denied his Administrative
Complaint, Rollerson filed this suit. Rollerson asserts two
claims against the Army Corps under the Administrative
Procedures Act ("APA"), 5 U.S.C. § 701 et
seq. In Count I, Rollerson challenges the Army
Corps's recent denial of his Administrative Complaint,
which alleged the Port's violation of Title VI. Based on
Count I, Rollerson seeks the following remedy: "a
declaration that the [Army Corps] failed to carry out a
statutorily required or purely ministerial act by refusing
[his] Administrative Complaint" and a judgment
compelling the Army Corps "to stop funding [the
Ports' Expansion Project]" and "to provide
oversight of the Port's land acquisition practices to
ensure [they are] in accordance with the Uniform Act."
Id. at 45. In Count II, Rollerson challenges the
Army Corps's alleged failure to enforce Title VI and the
Uniform Relocation Assistance and Real Property Acquisition
Policy Act ("URA"), 42 U.S.C. § 4601 et
seq. See Id. at 46-48. Rollerson's requested remedy
under Count II is virtually the same remedy he describes
under Count I. The only difference is Rollerson seeks to add
a line in the declaration stating that the Army Corps also
violated the APA by "continuing to fund [the Ports'
Expansion Project] with federal funds." Id. at
Army Corps has moved to dismiss both claims under Rule
12(b)(1) and Rule 12(b)(6).
TO DISMISS STANDARD
must dismiss a suit for lack of subject matter jurisdiction
under Rule 12(b)(1) where it lacks the statutory or
constitutional power to adjudicate the case. See Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998). Subject matter
jurisdiction fails if the plaintiff lacks Article III
standing. See Bender v. Williamsport Area Sch. DisL,
475 U.S. 534, 541-42 (1986). Therefore, when a plaintiff
lacks standing to sue in federal court, it is appropriate to
dismiss the action pursuant to Rule 12(b)(1) for want of
subject matter jurisdiction. See Chair King, Inc. v.
Hous. Cellular Corp., 131 F.3d 507, 509 (5th Cir. 1997).
pleading must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). This pleading standard
does not require "detailed factual allegations, but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007))
(internal quotation marks omitted). Under Rule 12(b)(6), a
party may "move for dismissal for a failure to state a
claim upon which relief can be granted." Lemieux v.
Am. Optical Corp., 712 Fed.Appx. 409, 412 (5th Cir.
2018) (internal quotation marks omitted). "The complaint
must be liberally construed in favor of the plaintiff, and
all facts pleaded in the complaint must be taken as
true." Lowrey v. Tex. A&M Univ. Syst., 117
F.3d 242, 247 (5th Cir. 1997).
is appropriate "when a plaintiff fails to allege
sufficient facts that, taken as true, state a claim that is
plausible on its face." Amacker v. Renaissance Asset
Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). However,
"[m]otions to dismiss under Rule 12(b)(6) are viewed
with disfavor and are rarely granted." Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009)
(internal quotation marks and citation omitted).
"Determining whether the plausibility standard has been
met is 'a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.'" Turner v. Pleasant, 663 F.3d 770,
775 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at
Count I: The ...