IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

STATE OF FLORIDA, ex rel. FREDA

COBB, LYNN PADGETT, 

Plaintiff,

vs. CASE NO. 5:10-cv-118/RS-MD

UNITED STATES DEPARTMENT

OF JUSTICE, ET AL. 

Defendants.

_________________________________________/

UORDER

Before me is Defendants‟ Motion to Dismiss (Doc. 15) and Plaintiff‟s Objection to 

the Defendants‟ Motion to Dismiss (Doc. 25). 

UI. Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure requires dismissal of claims 

for “lack of subject-matter jurisdiction.” See FED. R. CIV. P. 12(b)(1). A motion to 

dismiss under Rule 12(b)(1) may assert either a factual attack or a facial attack to 

jurisdiction. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009)

(citations omitted). A factual attack challenges the existence of subject matter 

jurisdiction in fact, irrespective of the pleadings. Matters outside the pleadings, such as

testimony and affidavits, are considered. Id. In a facial attack, on the other hand, the 

court examines whether the complaint has sufficiently alleged subject-matter jurisdiction

and construes the complaint in the light most favorable to Plaintiff and accepts all facts 
alleged in the complaint as true. Id; Trimble v. United States Soc. Sec., 2010 U.S. App. 

LEXIS 4811, at *8 (11th Cir. 2010). 

II. IIBackground

Plaintiff, the State of Florida ex rel., alleges that the US Department of Justice

(“DOJ”), the Federal Bureau of Prisons (“FBP”), and Federal Prison Industries, Inc.

(“UNICOR”), operate an electronics recycling program at the Federal Correctional 

Institute in Marianna, Florida (“FCI Marianna”) as a public nuisance in violation of FLA.

STAT. § 823.05(1) (2009). Plaintiff seeks both temporary and permanent injunctive relief

to prohibit all recycling activities. 

III. IDiscussion

A. Standing and Parens Patriae 

Article III of the United States Constitution limits the role of the federal judiciary 

to resolving cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-

560, 112 S. Ct. 2130, 2136 (1992). Standing is a core component of this Article III 

requirement that must be established by litigants before a court may exercise jurisdiction 

over their claims. Id. at 560, 112 S. Ct. at 2136. The doctrine of standing requires (1)

that Plaintiff must have suffered an injury-in-fact; (2) that there must be a causal 

connection between the injury and the conduct complained of; and (3) that it must be 

likely, as opposed to merely speculative that the injury will be redressed by a favorable 

decision. Id at 560-561, 112 S. Ct. at 2136. 

To support standing, general factual allegations of injury resulting from the 

Defendants‟ conduct may suffice at the pleading stage. On a motion to dismiss, the court
"presume[s] that general allegations embrace those specific facts that are necessary to 

support the claim.” Id. at 561, 112 S. Ct. at 2137. 

In general, a state has standing where it has suffered an injury (1) to its sovereign 

interest; (2) to some proprietary interest; or (3) to its quasi-sovereign or parens patriae

interest. Chiles v. Thornburgh, 865 F.2d 1197, 1208 (11th Cir. 1989). However, a state 

does not have standing as parens patriae to bring an action against the federal 

government to vindicate the rights of its citizens. Id. at 1209. The rationale is that, as 

between sovereigns, the US government most properly represents citizens as parens 

patriae. See Alfred L. Snapp & Son, Inc. v. PR, 480 U.S. 592, 610 n.16, 102 S. Ct. 3260, 

3270 n.16 (1982) (citing Massachusetts v. Melon, 262 U.S. 447, 485-486, 43 S. Ct. 597, 

600-601 (1923)). 

Plaintiff alleges that Litigant Cobb (Doc. 1. Attach. 1, p. 4), prison employees, 

their families, and people in the community of Jackson County (Doc. 1. Attach. 1, p. 4), 

and prison inmates (Doc. 1, Attach. 1, p.3) have been injured from exposure to toxic 

substances from the Defendants‟ electronics recycling program. These allegations can 

best be characterized as injuries to the health and welfare of the state‟s citizens. F

1

F Thus, 

these are injuries to the state in its function as parens patriae, Massachusetts v. EPA, 549 

U.S. 497, 519, 127 S. Ct. 1438, 1454 (2007); Alfred L. Snapp & Son, Inc., 480 U.S. at 

607, 102 S. Ct. at 3269; N.D. v. Minn., 263 U.S. 365, 375-376, 44 S. Ct. 138, 140 (1923); 

 

1 These alleged injuries are not to the state‟s sovereign interests or proprietary interests. Sovereign interests 

are the state‟s ability to exercise power within its jurisdiction and the demand for recognition from other sovereigns 

of its boarders and the like. Proprietary interests are those associated with the state acting like other associations or 

private parties such as owning land or participating in a business venture. See Alfred L. Snapp, 480 U.S. at 601-03, 

102 S. Ct. at 3265-66.
Chiles, 865 F.2d at 1208, and, therefore, cannot be maintained against the US 

government.F

2

F

Plaintiff contends that the suit is “not an attempt to promote the „general welfare‟ 

of the populace of the State of Florida in its entirety, but, rather, it is a targeted attempt to 

protect . . . [Jackson County].” (Doc. 25, p. 4). Without citing any authority, Plaintiff

invites the court to alter the plain meaning of FLA. STAT. § 60.05 (2009) which allows a 

citizen to sue “in the name of the state” (emphasis added). It is by virtue of this statute 

that Plaintiff has made its nuisance claim, and an attempt to alter the statute‟s plain 

meaning and historical interpretation is ineffective to escape the conclusion that Plaintiff 

acts as parens patriae and, thus, must be dismissed for the reasons stated above. See, 

e.g., Kathleen Citrus Land Co. v. City of Lakeland, 124 Fla. 659, 662, 169 So. 356, 358 

(1936) (“When authority to bring a suit to suppress a nuisance is properly conferred upon 

a private citizen the suit is in effect one instituted on behalf of the public and in which the 

real complaintant to the same extent as though the suit were brought by the Attorney 

General.”). 

B. Sovereign Immunity

The doctrine of sovereign immunity precludes the US government and its agencies 

from being sued without the government‟s consent. Ishler v. Internal Revenue, 237 Fed.

Appx. 394, 397 (11th Cir. 2007). Consent to be sued is a prerequisite for jurisdiction,

 

2 Defendants DOJ and FBP are government entities. UNICOR is a government-owned corporation, Core Concepts 

of Fla., Inc. v. United States, 327 F.3d 1331, 1333 (Fed. Cir. 2003), and is also an executive agency. 5 U.S.C. § 105 

(2009); Galvan v. Federal Prison Indus., 199 F.3d 461, 463 (D.C. Cir. 1999). All are entitled to protection from 

suits brought by states as parens patriae. 
Trimble, 2010 U.S. App. LEXIS 4811, at *8, and must be “unequivocally expressed” in 

statutory text to act as a waiver of sovereign immunity. Gomez-Perez v. Potter, 553 U.S. 

474, 128 S. Ct. 1931, 1942-43 (2008) (citing Lane v. Peña, 518 U.S. 187, 192, 116 S. Ct. 

2092, 2096 (1996)). Because Plaintiff bears the burden of establishing subject matter 

jurisdiction, Plaintiff must prove an explicit waiver of immunity. Ishler, 237 Fed. Appx. 

at 398. 

The doctrine of sovereign immunity applies to all suits against the United States 

government. Actions are against the government where “the judgment sought is to be 

satisfied from monies of the federal Treasury, or where the judgment interferes with 

public administration, or where the judgment's effect is to compel or restrain the 

government's actions.” Ishler, 237 Fed. Appx. at 398 (citing Panola Land Buyers Ass'n 

v. Shuman, 762 F.2d 1550, 1555 (11th Cir. 1985)). Plaintiff‟s request for equitable relief, 

if granted, would, by the very nature of Plaintiff‟s request, restrain the government from 

acting – namely, by enjoining it from operating its recycling facilities. For Plaintiff to 

proceed, therefore, it must overcome the sovereign‟s immunity. FDIC v. Meyer, 510 

U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal 

Government and its agencies from suit.”). This immunity extends not only to DOJ and 

FBP but to UNICOR. See Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1, 1-4 

(5th Cir. 1973) (noting that even though a wholly owned government corporation, selfsufficient, incorporated in the District of Columbia and, like a private corporation, 

managed by a board of directors, a claim against UNICOR is “essentially one against the 

United States” and barred by the doctrine of sovereign immunity). 
In this action, Plaintiff has not established a basis for any waiver of sovereign 

immunity. The Federal Tort Claims Act creates a cause of action only for those seeking 

“money damages” and, thus, is of no moment to Plaintiff who requests injunctive relief. 

28 U.S.C. § 1346(b) (2009). Likewise, Plaintiff‟s reliance on the Administrative 

Procedure Act (“APA”) is misplaced. Citing Miccosukee Tribe of Indians v. United 

States, 680 F. Supp. 2d 1308 (S.D. Fla. 2010), Plaintiff contends that the APA is a 

general waiver of sovereign immunity for suits where a non-monetary remedy is sought. 

The Miccosukee decision does not operate as a blanket waiver of immunity and is not 

binding on this court. Rather, Miccosukee is premised, in part, on Panola Land Buyers 

Assoc. v. Shuman, 762 F.2d 1550, 1555-56 (11th Cir. 1985) which held that claims 

seeking permanent injunctions are barred by sovereign immunity because such claims 

interfere with public administration. Because enjoining the UNICOR recycling program 

would clearly interfere with public administration (i.e., the Government‟s administration 

of its recycling program) and restrain the government‟s actions (i.e., by enjoining the 

operation of the program), Plaintiff‟s requested relief is against the sovereign, as set forth 

in Panola, 762 F.2d at 1556, for which the sovereign is entitled to immunity. 

Accordingly, the Government Defendants are entitled to sovereign immunity as to 

Plaintiff‟s claims for injunctive relief.
IV. Conclusion 

IT IS ORDERED: 

1. Government Defendants‟ Motion to Dismiss (Doc. 15) is granted with prejudice. 

2. The clerk is directed to close the case in its entirety for all purposes. 

ORDERED on August 12, 2010

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE