Kovach v. The United States of America

Background

Thomas F. Kovach, proceeding without a lawyer and without paying filing fees, brought an action under Section 505(a) of the Federal Water Pollution Control Act, commonly called the Clean Water Act. He sued the United States, the United States Department of Defense, the United States Air Force, the State of New York, the New York Air National Guard, the 105th Airlift Wing, and retired Major General Paul A. Weaver, Jr.

Kovach alleged that in 1990, while he was serving at Stewart Air National Guard Base, a crew used a fire truck to pump chemically contaminated stormwater or wastewater from a detention pond over the base’s perimeter fence. He alleged that the material flowed into a body of water and then into a creek. He further alleged that he reported the incident to the New York State Department of Environmental Conservation and that a state response team later attempted to contain the foam.

Kovach alleged that he experienced ongoing health problems and that later testing showed elevated levels of perfluorooctane sulfonic acid, or PFOS, in his blood. He sought personal damages of $25,000 per day for the period from the alleged dumping through the filing of his complaint, as well as retroactive military promotion, retroactive military retirement, and other relief. He also sought to hold Weaver and the government defendants responsible under a theory that employers are liable for employees’ conduct.

Motions and standing

The Federal Defendants, the State Defendants, and Weaver moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim.

The State Defendants argued that Kovach lacked Article III standing because the relief he requested could not remedy his alleged injuries. Standing requires an injury, a connection between the injury and the challenged conduct, and a likelihood that the court’s decision will provide relief. The court focused on the third requirement, commonly called redressability.

The court explained that the Clean Water Act’s citizen-suit provision allows injunctions and civil penalties, but civil penalties are paid to the United States Treasury rather than to private plaintiffs. The court held that Kovach therefore could not obtain personal damages through this action. It also determined that his requests for military promotion, military retirement, and Airborne wings were outside the relief allowed by the citizen-suit provision. Because none of the relief he requested could provide the required remedy, the court concluded that he lacked standing and that his Clean Water Act claim against all defendants had to be dismissed.

The court did not decide whether the alleged violation was too old to support a Clean Water Act citizen suit or whether Kovach adequately alleged an injury. It also did not assess possible claims under the Federal Tort Claims Act or other tort theories because Kovach stated that the Federal Tort Claims Act was not the basis of his complaint and that he had not brought an individual tort claim.

Leave to amend and disposition

Although courts generally give self-represented litigants an opportunity to amend a complaint, the court found that amendment would be futile because it would still lack subject-matter jurisdiction. The court therefore did not grant leave to amend.

The court granted the motions to dismiss. It certified that any appeal would not be taken in good faith and denied permission to proceed without paying filing fees for an appeal. The clerk was directed to terminate the motions and close the case.