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P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-7751

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. e du/thir dc ir c uit_1998/172Filed July 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7751

JOSEPH KERNS; KATHLEEN KERNS; WILLIAM M. TORNEY; LOIS A. TORNEY; MAUREEN MOYER; JOHN D. COFFMAN; MARTHA C. COFFMAN, on behalf of themselves and other similarly situated property ow ners, 9 Del.C. 6519 persons and other persons being asses sed for the payment of the "West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District

v.

DALE R. DUKES, individually and as Sussex County Government President and Council President; GEORGE J. COLLINS, individually and as Sussex County Council Member; WILLIAM D. STEVENSON, SR., individually an d as Sussex County Council Member; GEORGE B. COLE, individually and as Sussex County Council Member; RALPH E. BENSON, individually and as Sussex County Council Member; ROBERT L. STICKELS, individually a nd as Sussex County Administrator; ROBERT W. WOOD, individually and as Sussex County Engineer; CHRISTOPHE A.G. TULOU, individually and as Delawar e Department of Natural Resources and Environmental Control Secretary; GERALD L. ESPOSITO, individuall y and as a Director of Delaware Department of Natural Resources and Environmental Control; EDWIN H. CLAR K, individually and as then Secretary of Delaware Department of Natural Resources and
Environmental Control

Joseph Kerns and Kathleen Kerns, William M. Torney and Lois A. Torney, Maureen Moyer, John D. Coffman and Martha C. Coffman, individually and as representative Plaintiff s on behalf of the certified class,

AppellantsOn Appeal From the United States District Court

for the District of Delaware (D.C. Civ. No. 96-113)

Argued May 21, 1997

Before: SLOVITER and ROTH, Circuit Judges, and POLLAK, District Judge*

(Filed July 24, 1998)

Francis J. Trzuskowski James F. Kipp Francis J. Schanne (argued) Trzuskowski, Kipp, Kelleher &

Pearce 1020 North Bancroft Parkway

Box 429 Wilmington, DE 19899 Attorneys for Appellants

Carl Schnee (argued) Prickett, Jones, Elliott, Kristol &

Schnee 1310 King Street

P.O. Box 1328 Wilmington, DE 19899

Dennis L. Schrader
Veronica O. Faust

107 West Market Street

P.O. Box 690 Georgetown, DE 19947 Attorneys for Appellees Dale Dukes, George J. Collins, William D. Stevenson, George Cole, Ralph E. Benson, Robert L. Stickels, Robert W. Wood

___________________________________________________ ______________

* Hon. Louis H. Pollak, United States District Judg e for the Eastern District of Pennsylvania, sitting by designation.

2Keith A. Trostle

Department of Justice 820 North French Street, 8th Floor Wilmington, DE 19801 Attorney for Appellee Christophe A. Tulou

Kevin P. Maloney Department of Natural Resources 89 Kings Highway

P.O. Box 1401 Dover, DE 19903 Attorney for Appellee Gerald L. Esposito

David L. Ormond, Jr. Department of Justice 820 North French Street, 8th Floor Wilmington, DE 19801 Attorney for Appellee
Edwin H. Clark

OPINION OF THE COURT

POLLAK, District Judge:

This appeal presents the question whether a suit in the District Court for the District of Delaware brought by certain Delaware property owners challenging assess ments charged to them to provide for an expanded sewer sy stem is barred either by the Tax Injunction Act, 28 U.S. C. S 1341 -- which provides that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collect ion of any tax under State law where a plain, speedy and e fficient remedy may be had in the courts of such State"-- or by principles of comity. Because we find that the dist rict court properly dismissed the suit, we affirm the judgment of the
district court.

I.

This civil action challenges decisions taken by the
defendants -- members and officials of the Sussex C ounty

3Council ("the County defendants"), and officials of the

Delaware Department of Natural Resources and Environmental Control ("the DNREC defendants")-- to (1)
authorize the establishment of the "West Rehoboth Expansion of the Dewey Beach Sanitary Sewer Distric t" and (2) take subsequent steps to implement such authori zation. The plaintiffs -- appellants in this court -- are s everal persons owning real property in the expanded sewer district ("the Property Owners"). The Property Owners allege that, by virtue of the establishment of the expanded sewe r district, they are being compelled to discontinue r eliance on their own septic systems and, in lieu thereof, to j oin the expanded sewer system and to pay an array of servic e charges and fees for the privilege of obligatory pa rticipation in the expanded sewer system.

The complaint sets forth three counts arising under federal law. The first count, based upon 42 U.S.C. S 1983, alleges deprivations by the County defendants of th e Property Owners' Fourteenth Amendment rights to procedural due process; this count undergirds the P roperty Owners' most strongly argued claim -- namely, that under Delaware law the establishment of the expanded sewe r district could be legally accomplished only pursuan t to a vote (an "election") of the affected Property Owner s, a procedural step not taken in this instance. The sec ond count, also based upon 42 U.S.C. S 1983, alleges th at the actions of the County defendants and the DNREC defendants have infringed upon the Property Owners' Fourteenth Amendment rights to substantive due proc ess: the Property Owners contend that the defendants' ac tions were not based on any rationally supportable public health concerns and that they "have impinged upon the [Pro perty Owners'] use and enjoyment of their real property b y mandating a financial charge and legal encumbrance thereon, as well as limiting, controlling, and char ging for the use of said property." Complaint at p. 15. The third count, undertaking to set forth a claim pursuant to 33 U.S.C. S 1365(a)(2), the civil enforcement provisio n of the Clean Water Act,1 alleges that the DNREC defendants failed

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1. 33 U.S.C. S 1365(a)(2) provides: "[A]ny citizen may commence a civil action on his own behalf . . . against the [EPA] Ad ministrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator."

4to perform certain federally mandated environmental and

cost reviews.2

The Property Owners brought this suit as a proposed class action, alleging their readiness to represent an estimated 7000 persons said to be similarly situate d. The complaint recites that, by way of relief:

Plaintiffs request, for themselves and all other members of the class, that:

A. The rights of the class members to have an election on the establishment of the "West R ehoboth Expansion of the Dewey Beach Sanitary Sewer District" be adjudicated and declared, and t hat the prior unlawfully decreed Sewer District be d eclared void ab initio;

B. The defendants and each of them be temporarily and permanently restrained and e njoined from requiring members of the class to conne ct to the unlawfully created sewer district and from c harging or assessing said members of the class for t he costs of creating, constructing, maintaining and o perating said sewer district (and any debt thereon), unless
and until such time as the sewer district is lawfully created by election and compliance with 9 De l.C. Ch. 65, after proper environmental and cost revi ew, and from any further construction of said sewer district, or creation of new debt thereon, without furthe r order of the Court;

C. The defendants be Ordered to notify all persons, within the said sewer district, of their right

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2. The complaint also contains a fourth count charg ing both sets of defendants with a variety of derelictions of state law. However, there is not complete diversity of citizenship as between th e plaintiffs and the defendants, with the result that the fourth count i s one which could come within the subject matter jurisdiction of the federal district court only as a claim "supplemental" to validly pleaded f ederal claims. 28 U.S.C. S 1367(a). Since the district court conclude d that the federal claims were not cognizable, and it is the correctne ss of that ruling which is now before this court, there is no present need for this court to
consider the fourth count.

5to refuse to connect and/or to disconnect, a nd the

right to receive a refund, if exercising sai d right, of any capitalization fees previously paid and/ or any quarterly rates or other fees and costs paid regarding
said sewer district.

D. The plaintiffs be awarded attorneys' fee s and other applicable costs or fees pursuant to 4 2 U.S.C. section 1988;

E. The plaintiff class be awarded money dam ages incident to the equitable relief requested a nd such moneys be placed in trust. Such monies shall be sufficient to compensate the plaintiff class members for any liability and costs incurred on the new sewer district, including but not limited to costs of connections, fees previously paid by the pla intiffs to the defendants plus interest, and to pay for any debt
created from construction of the sewer distr ict; and

F. Plaintiffs have such other legal and equ itable relief as the Court may deem appropriate, in cluding costs and expenses.3

Complaint at pp. 19-20 (emphases in original).

In the district court, the defendants moved to dism iss all or part of the suit -- or, in the alternative, to s tay the suit pending state court resolution of state law questio ns -- on a variety of grounds. Defendants chiefly argued tha t: 1) the Tax Injunction Act ("The district courts shall not enjoin, suspend or restrain the assessment, levy or collect ion of any tax under State law where a plain, speedy and e fficient remedy may be had in the courts of such State") was a bar to the district court's subject matter jurisdiction ; 2)

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3. In their brief on appeal, the Property Owners ha ve characterized the relief they seek as "(a) A declaration that the`Wes t Rehoboth Expansion of the Dewey Beach Sanitary Sewer District' is void ab initio; (b) Injunctive relief barring mandatory connections; ba rring new construction on Phase III of the sewer project; and barring related charges; (c) Attorney's fees and costs under 42 U.S .C. SS 1983 and 1988; and (d) Compensatory damages resulting from the unl awful creation of the sewer district and its sewer system." Appellant s' Brief on Appeal, pp.

3-4.

6principles of comity required dismissal of the suit ; and 3)

the Clean Water Act claim was not cognizable agains t the
DNREC defendants. The district court concluded that the suit should be dismissed. Kerns v. Dukes, 944 F. Su pp. 1214 (D. Del. 1996). Central to the district court' s analysis was the determination that the suit was a challenge to the imposition and enforcement of taxes: as noted above , the suit seeks inter alia to enjoin the defendants "fro m charging or assessing said members of the class for the cost s of creating, constructing, maintaining and operating s aid sewer district (and any debt thereon)." As a challe nge to a local taxation scheme, the suit was found by the di strict court to run afoul both of federal comity principle s and of the Tax Injunction Act, 28 U.S.C. S 1341. The distr ict court

went on to state:

This holding does not put an end to plaintif fs' chances of prevailing on their lawsuit in the state court system. All arguments made by plaintiffs before this Court may
be made in a state court.

Id. at 1222. In an order dated November 8, 1996, th e district court dismissed the action for lack of sub ject matter jurisdiction and the Property Owners appealed to th is

court.

On appeal, the Property Owners contended that: "The primary, objective purpose of the present lawsuit i s to address the arbitrary and capricious establishment of a sewer district. Thus, the relief requested in the c ase at bar does not implicate Federal Comity or the Tax Injunc tion Act." Appellants' Brief p. 34. After oral argument, and because the resolution of this appeal potentially i mplicated a question of Delaware law, this court issued an or der certifying a question to the Supreme Court of Delaw are.4

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4. Delaware Supreme Court Rule 41(a)(ii) provides:

The Supreme Court of the United States, a C ourt of Appeals of the United States, the United States District Co urt or the Highest Appellate Court of any other State may, on m otion or sua sponte, certify to this Court for decision a questio n or questions of law arising in any case before it prior to the e ntry offinal judgment

if there is an important and urgent reason for an immediate determination of such question or questions by this Court and the certifying court has not decided the questio n or questions in the

case.

7Our certification order read, in relevant part; 5

There are two crucial issues on appeal. As to the first, without now deciding the issue we wil l assume for the purposes of this certification order tha t the district court is correct that plaintiffs' suit is th e sort of challenge to the processes of state and loca l taxation which federal comity doctrines and the Tax I njunction Act were designed to keep out of a federal d istrict court. The remaining issue is whether the co urts of Delaware can provide plaintiffs with (in the language of the Tax Injunction Act, language which we al so regard as applicable to the comity aspect of the ca se) a"plain, speedy and efficient remedy." This is of cou rse a federal question to be determined by this Court. How ever, the federal question is one whose basic ingredie nts constitute a question of Delaware law. There fore, as ordered below, we will certify to the Suprem e Court of Delaware the following question:

To what extent does the jurisdiction of Del aware's courts (whether taken singly or in combinati on) encompass plaintiffs' claims, and to what ex tent are Delaware's courts able to provide such relie f as those claims, if sustained, would entail?

We seek, that is, to ascertain the degree t o which plaintiffs are able to pursue in the courts of Delaware those claims that they have chiefly pressed in the federal district court: "First, that they we re arbitrarily denied the right to vote on a new district. Second, they were arbitrarily denied an environmental pro cess which
we believe to be fixed and vested. And third , that the sewer district that was built is not legitim ately or rationally related to an existing health men ace for the
need for that sewer. And that's the basis of the lawsuit." Argument of Counsel for Plaintiffs at Hearing Before District Court on Motions to Dismiss, Oct. 16, 1996, Transcript at 16-17. We seek also to a scertain to what degree the requested relief -- includin g a

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5. The full text of this court's certification orde r is annexed hereto as Appendix A.

8declaratory judgment, injunctive relief, and money

damages -- may be obtained in the courts of Delaware.

The Delaware Supreme Court, after full briefing and argument, handed down an opinion carefully and comprehensively addressing the issues tendered by o ur inquiry with respect to Delaware law. Regarding the Property Owners' S 1983 claims, the Delaware Suprem e Court stated that:6

[T]he state courts of Delaware may hear the Property
Owners' S 1983 claims. . . . While concurren t jurisdiction over S 1983 claims may lie in e ither the Superior Court or the Court of Chancery, the selection of the forum is dictated by the relief sough t. The Property Owners seek declaratory relief, inj unctive relief and money damages on their S 1983 cla ims. They also seek an award of attorney's fees pursua nt to 42

U.S.C. S 1988.

The Court of Chancery has exclusive jurisdi ction where injunctive relief is sought. The Court of Chancery may award declaratory relief, where there is otherwise a basis for equitable jurisdiction . The requests for an award of money damages and f or attorneys' fees do not prevent the Court of Chancery from exercising jurisdiction over the S 1983 claims. The Court of Chancery, in its discretion, may el ect to exercise jurisdiction over legal claims conc urrent to equitable claims properly before it. Once th e Court of Chancery accepts jurisdiction over the entir e controversy, the court is empowered to resol ve the entire controversy, even if doing so require s an award of a purely legal remedy, such as money dama ges. Finally, sovereign immunity does not bar an action brought pursuant to S 1983. Accordingly, the Court of Chancery has jurisdiction over the Property Owners'
S 1983 claims.

Kerns v. Dukes, 707 A.2d 363, 367-68 (Del. 1998) (footnotes and citations omitted). With respect to the

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6. The full text of the Delaware Supreme Court's op inion is annexed hereto as Appendix B.

9Property Owners' claim that they were arbitrarily d enied an

environmental review under the Clean Water Act, the Delaware Supreme Court stated that:

Under 29 Del.C. S 8003(12) and the State Re volving Fund Agreement, the DNREC Secretary is requi red to
conduct an environmental review. This review is mandatory and may be enforced in equity. DNR EC is not protected from injunctive relief by the doctrine of sovereign immunity. Thus, it appears that th e Property Owners would be able to obtain an injunction ordering performance of the reviews they seek.

Id. at 369 (footnotes and citations omitted).

II.

Aided by the opinion of the Delaware Supreme Court, we now are in a position to resolve the issues posed b y this appeal.

The Tax Injunction Act bars a federal court from enjoining "the assessment, levy or collection of an y tax under state law" where state law provides a "plain, speedy and efficient" remedy. In Rosewell v. LaSalle Natio nal Bank, 450 U.S. 503 (1981), the Supreme Court recognized t hat "[t]he statute `has its roots in equity practice, i n principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations.' " Id. at 522 (quoting Tully v. Griffin, Inc. 429 U.S. 68, 73 (19 76)). In California v. Grace Brethren Church, 457 U.S. 393 ( 1982), the Court held that the Tax Injunction Act bars fed eral courts from hearing declaratory judgment actions in state
tax cases. Id. at 407.

In Fair Assessment in Real Estate v. McNary, 454 U. S. 100 (1981), the Court determined that suits seeking damages because of the imposition of allegedly wron gful taxes are not cognizable in a federal court; while not expressly barred by the Tax Injunction Act, damage actions are barred by principles of comity provided that ef fective
relief is obtainable in state court. The Court reas oned that damage actions "would be no less disruptive of [a s tate's] tax system than would the historic equitable effort s to

10enjoin the collection of taxes, efforts which were early held

barred by considerations of comity." Id. at 112. Ta ken together, the Tax Injunction Act and the Supreme Co urt's decision in McNary make it clear that a federal cou rt cannot entertain a suit posing either an equitable or a le gal challenge to state or local taxes ("any tax under s tate law") if a sufficient remedy (a remedy which the Tax Inju nction Act terms "plain, speedy and efficient" and which c omity views as "plain, adequate and complete")7 is availa ble in

state court. See 454 U.S. at 115.

Therefore, this appeal presents two principal issue s: First, whether the Property Owners' suit constitute s a challenge to the processes of state or local taxati on; and second, whether the courts of Delaware can provide the Property Owners with a "plain, speedy and efficient " remedy for the Property Owners' claims.

Subsequent to the issuance of the Delaware Supreme Court's opinion, the Property Owners submitted to this court a supplemental memorandum captioned "Memorandum of Appellants Addressing the Delaware Supreme Court's Answer to the Certified Question of Law." In that memorandum, the Property Owners have acknowledged that state law "affords them the poten tial for all of the relief that they request in the Federal Complaint." Appellants' Supplemental Memorandum, p. 3. Accordin gly, the Property Owners have narrowed their argument on appeal to the following: "[w]hile the state forum m ay afford all the relief requested, it is submitted that fede ral court jurisdiction should remain open to the Property Own ers because this is not a state tax case (i.e., prong o ne of the two part Federal Comity/Tax Injunction analysis)."8

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7. In McNary, the Court stated that:

We discern no significant difference, for p urposes of the principles recognized in this case, between remedies wh ich are"plain, adequate, and complete," as that phrase has been used in articulating the doctrine of equitable restr aint, and those which

are "plain, speedy and efficient," within the me aning of S 1341.

454 U.S. at 115.

8. The Property Owners couple this argument with a contention that "federal court jurisdiction should remain open to t he Property Owners

11Appellants' Supplemental Memorandum, p.4. The Prope rty

Owners do not dispute the characterization of the assessments in this case as a tax. They insist, how ever, that the primary purpose of their suit is to "addre ss the arbitrary and capricious establishment of a sewer s ystem" and not to challenge the sewer assessments. Therefo re, according to the Property Owners, maintenance of th is suit would not constitute federal judicial interference with Delaware's state or local tax system.

In McNary, the Supreme Court quoted with approval Justice Brennan's explanation in an earlier case of the
rationale behind federal deference to state courts in state

tax cases:

The special reasons justifying the policy o f federal
noninterference with state tax collection ar e obvious. The procedures for mass assessment and colle ction of state taxes and for administration and adjud ication of taxpayers' disputes with tax officials are g enerally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordan ce with the state procedures. If federal declaratory rel ief were available to test state tax assessments, sta te tax administration might be thrown into disarray , and taxpayers might escape the ordinary procedur al requirements imposed by state law. During th e pendency of the federal suit the collection of revenue under the challenged law might be obstructed , with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state law, which, like issues of state regulatory law, are more properly hear d in the

state courts.

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because . . . state law was uncertain at the time o f the filing of the federal complaint." Appellants' Supplemental Memora ndum, p. 4. We do not think the authority of a federal district court to entertain a plaintiff's case can turn on the degree of the plaintiff's lack of certainty at the inception of the litigation as to whether the plain tiff's claims are of a kind that could be adequately addressed in a state court.

12454 U.S. at 108 n.6 (quoting Perez v. Ledesma, 401 U.S.

82, 127-28 n.17 (1971) (Brennan, J., concurring in part and dissenting in part)).

Viewing appellants' complaint in the light of Justi ce Brennan's words, we are persuaded that maintenance of this suit would impinge on exactly the state turf t hat Congress and the Court have sought to protect again st federal judicial intrusion. The Property Owners are challenging the actions of the County and DNREC defendants in establishing the sewer system which h as given rise to the assessments they are now required to pay. Given the relief sought -- that the sewer district be "declared void" and that the defendants be "enjoine d from requiring members of the class to connect to the un lawfully created sewer disrict and from charging or assessin g said members of the class for the costs of creating, con structing, maintaining and operating said sewer district"9 -- we agree with the district court that this action, if permit ted to go forward, would heavily involve the federal courts i n Delaware tax matters. And, given this direct and substantial challenge to a system of assessments -- i.e. taxes -- that is now in place, we find unpersuasive the argument that the Property Owners' primary target i s"the arbitrary and capricious establishment of a sewer s ystem" and that this somehow insulates the Property Owners ' suit from the Tax Injunction Act and the demands of comi ty.10

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9. Complaint, p. 19. See also supra note 3.

10. The proposition contended for by the Property O wners is illustrated by Pendleton v. Heard, 824 F.2d 448, 451 (5th Cir. 1987), a case strongly relied on by the Property Owners in their brief on appeal. Pendleton v. Heard was a suit alleging that a propo sed county bond issue to finance bridge and road construction, if p ermitted to go forward without any opportunity for county voters to seek a county election on the bond issue, would contravene section 5 of the f ederal Voting Rights Act. Noting that "the purpose of this suit is the v indication of voting rights," and that "[a]ny effect on the issuance of bonds or the subsequent imposition of taxes is incidental," id. at 452, the Fifth Circuit reversed the district court's order dismissing the suit and remanded for trial before a statutory three-judge court as required by the Voting Rights Act. In the case at bar, the Property Owners, in challen ging assessments that have already been imposed, are seeking to recover t he assessments that

13Finally, we turn to the question whether the Delawa re

courts can provide a "plain, speedy and efficient" remedy to the Property Owners. In order for a remedy in Delaw are's state courts to satisfy this standard, it must be procedurally adequate, Rosewell, 450 U.S. at 512, a nd provide a " `full hearing and judicial determinatio n' at which [the Property Owners] may raise any and all constit utional objections to the tax." Id. at 514 (quoting LaSalle National Bank v. County of Cook, 312 N.E.2d 252, 255-56 (Ill

. 1974)).

The opinion of the Delaware Supreme Court makes it clear that the courts of Delaware can indeed provid e the forms of judicial inquiry and (as appropriate) judi cial remedy that meet the requirements of the Tax Injunc tion Act and the principles of comity. Indeed, as noted above, the supplemental memorandum submitted to this court by the Property Owners subsequent to the issuance of t he authoritative opinion of the Delaware Supreme Court has affirmed the Property Owners' recognition that Dela ware law "affords them the potential for all of the reli ef that they request in the Federal Complaint."11 And should it be the

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have been paid and to enjoin collection of the asse ssments in the future.
Closer to the mark than Pendleton v. Heard is Carso n v. City of Fort Lauderdale, 293 F.2d 337 (5th Cir. 1961), in which the Fifth Circuit affirmed dismissal, pursuant to the Tax Injunction Act, of a suit in which "[p]laintiffs . . . seek an injunction to restrain the city from carrying forward its plan to install sewers and make the con sequent assessments and service charges." Id. at 338. See also Burris v . City of Little Rock, 941 F.2d 717 (8th Cir. 1991) (holding that the Tax Injunction Act barred review of a S 1983 action to challenge an assessmen t to pay for sewer improvements).

11. In assessing the scope of the phrase "all of th e relief that [the Property Owners] request in the Federal Complaint," it should be borne in mind that the complaint embraces two S 1983 clai ms and a Clean Water Act claim under 33 U.S.C. S 1365(a)(2). The d istrict court "dismiss[ed] plaintiff 's action based on considera tions of comity and the Tax Injunction Act. As a result . . . the applicabi lity of the Clean Water Act [was] not considered." 944 F. Supp. 1218. Given our disposition of the antecedent comity and Tax Injunction Act issues , it would not appear appropriate for this court to undertake to r esolve the academic

14case that the anticipated proceedings in the Delawa re

courts fail to resolve issues of federal law in a m anner deemed by the Property Owners to be satisfactory, t he Property Owners would, pursuant to the Federal Judi cial Code, be able to seek certiorari review by the Supr eme Court of the United States. 28 U.S.C. S 1257.

III.

For the foregoing reasons, the judgment of t he district
court will be affirmed.

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question whether the Clean Water Act claim, were it separable from the companion counts of the complaint and from the broa d relief sought, would have been cognizable. Suffice it to note that it is at least

doubtful that a claim that state officials failed to perform certain federally
mandated environmental and cost reviews fits within the framework of 33 U.S.C. S 1365(a)(2), which authorizes a citizen to "commence a civil action on his own behalf . . . against the [EPA] Ad ministrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." In any event, it appears from the opinion of the Delaw are Supreme Court that a lawsuit seeking a court order requiring the DNREC Secretary to
conduct a mandated environmental review is tenable under Delaware's equity jurisprudence.

15APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7751

JOSEPH KERNS, et al.

Appellants

v.

DALE R. DUKES, et al.

Appellees

On Appeal From the United States District Court
for the District of Delaware (D.C. Civ. No. 96-113)

Present: SLOVITER, Chief Judge, ROTH, Circuit Judge, and POLLAK, District Judge*

ORDER CERTIFYING A QUESTION OF LAW PURSUANT
TO DELAWARE SUPREME COURT RULE 41

This 31st day of July 1997, the Court having found that:

(1) This matter came before the United States Court of Appeals for the Third Circuit on May 21, 1997, on a ppeal from a final judgment of the United States District Court for the District of Delaware, Honorable Murray M. Schwa rtz, United States District Judge, dismissing plaintiffs ' complaint on grounds of comity and/or for lack of jurisdiction, see 944 F. Supp. 1214 (D. Del. 1996);

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* Hon. Louis H. Pollak, United States District Judg e for the Eastern District of Pennsylvania, sitting by designation.

16(2) The following facts are undisputed:

(a) This civil action challenges decisions taken by the
defendants -- members and officials of the Sussex C ounty Council ("the County defendants"), and officials of the Delaware Department of Natural Resources and Environmental Control (DNREC) -- to (1) authorize t he establishment of the "West Rehoboth Expansion of th e Dewey Beach Sanitary Sewer District" and (2) take subsequent steps to implement such authorization. T he plaintiffs -- appellants in this Court -- are sever al persons owning real property in the expanded sewer district . The plaintiffs allege that, by virtue of the establishm ent of the expanded sewer district, they are being compelled t o discontinue reliance on their own septic systems an d, in lieu thereof, to join the expanded sewer system and to pay an array of service charges and fees for the privil ege of obligatory participation in the expanded sewer syst em.

(b) The complaint sets forth three counts arising u nder federal law. The first count, based upon 42 U.S.C.S 1983, alleges deprivations by the County defendants of pl aintiffs' Fourteenth Amendment rights to procedural due proce ss; this count undergirds plaintiffs' most strongly arg ued claim -- namely, that under Delaware law the establishmen t of the expanded sewer district could be legally accomp lished only pursuant to a vote (an "election") of the affe cted property owners, a required procedural step not tak en in this instance. The second count, also based upon 42 U.S.C. S 1983, alleges that the actions of the County defe ndants and the DNREC defendants have infringed upon plaint iffs' Fourteenth Amendment rights to substantive due proc ess: plaintiffs contend that the defendants' actions wer e not based on any rationally supportable public health c oncerns and that they "have impinged upon the plaintiffs' u se and enjoyment of their real property by mandating afina ncial charge and legal encumbrance thereon, as well as li miting, controlling, and charging for the use of said prope rty." Complaint at 15. The third count, undertaking to se t forth a claim pursuant to 33 U.S.C. S 1365(a)(2), alleges that the DNREC defendants failed to perform certain federall y mandated environmental and cost reviews. (The compl aint also contains a fourth count charging both sets of

17defendants with a variety of derelictions of state law.

However, there is not complete diversity of citizen ship as between the plaintiffs and the defendants, with the result
that the fourth count is one which could come withi n the subject matter jurisdiction of the federal district court only as a claim "supplemental" to validly pleaded federa l claims. 28 U.S.C. S 1367(a). Since the district court concl uded that the federal claims were not cognizable, and it is t he correctness of that ruling which is now before this Court, there is no present need for this Court to consider the fourth count.)

(c) The plaintiffs have brought this suit as a prop osed class action, alleging their readiness to represent an estimated 7000 persons said to be similarly situate d. The complaint recites that, by way of relief:

Plaintiffs request, for themselves and all other members of the class, that:

A. The rights of the class members to have an election on the establishment of the "West R ehoboth Expansion of the Dewey Beach Sanitary Sewer District" be adjudicated and declared, and that the pr ior unlawfully decreed Sewer District be declare d void ab initio;

B. The defendants and each of them be tempo rarily and permanently restrained and enjoined from requiring members of the class to connect to the unlawfully created sewer district and from c harging or assessing said members of the class for the costs of creating, constructing, maintaining and oper ating said sewer district (and any debt thereon), unles s and until such time as the sewer district is lawfully created by election and compliance with 9 Del.C. Ch. 65 , after proper environmental and cost review, and fr om any further construction of said sewer district, or creation of new debt thereon, without further order of t he Court;

C. The defendants be Ordered to notify all persons, within the said sewer district, of their rig ht to refuse to connect and/or to disconnect, and the right to receive a refund, if exercising said right, of any c apitalization

18fees previously paid and/or any quarterly ra tes or

other fees and costs paid regarding said sew er district.

D. The plaintiffs be awarded attorneys' fee s and other applicable costs or fees pursuant to 4 2 U.S.C. section 1988;

E. The plaintiff class be awarded money dam ages incident to the equitable relief requested a nd such moneys be placed in trust. Such monies shall be sufficient to compensate the plaintiff class members for any liability and costs incurred on the new sewer district, including but not limited to costs of connections, fees previously paid by the pla intiffs to the defendants plus interest, and to pay for any debt
created from construction of the sewer distr ict; and

F. Plaintiffs have such other legal and equ itable relief as the Court may deem appropriate, in cluding costs and expenses.

Complaint at 19-20 (emphases in original).

(d) In the district court, the defendants moved to dismiss all or part of the suit -- or, in the alter native, to stay the suit pending state court resolution of sta te law questions -- on a variety of grounds. The district court
concluded that the suit should be dismissed. Centra l to its analysis was the determination that the suit was a challenge to the imposition and enforcement of taxe s: as noted above, the suit seeks inter alia to enjoin th e defendants "from charging or assessing said members of the class for the costs of creating, constructing, main taining and operating said sewer district (and any debt the reon)." As a challenge to a local taxation scheme, the suit was found by the district court to run afoul both of fe deral comity doctrines, see, e.g., Fair Assessment in Rea l Estate Ass'n v. McNary, 454 U.S. 100 (1981), and of the Ta x Injunction Act, 28 U.S.C. S 1341, which provides: " The district courts shall not enjoin, suspend or restra in the assessment, levy or collection of any tax under Sta te law where a plain, speedy and efficient remedy may be h ad in the courts of such State." Specifically, the distri ct court
held:

19Mindful of the fact that Sussex County alre ady has

invested $70,000,000 in the sewer district a nd the plaintiffs have been assessed taxes, the Cou rt finds that permitting the present case to go forwa rd will
result in substantial federal court interfer ence in the County's revenue collecting ability. The Cou rt alternatively dismisses the case based on th e Tax Injunction Act.

944 F. Supp. at 1222. The district court went on to state:

This holding does not put an end to plaintif fs' chances of prevailing on their lawsuit in the state court system. All arguments made by plaintiffs before this Court may
be made in a state court.

Id. This latter recital was not developed in detail in the district court's opinion;

(3) The question of law set forth below should be c ertified to the Supreme Court of Delaware for the following reasons:

(a) There are two crucial issues on appeal. As to t he first, without now deciding the issue we will assum e for the purposes of this certification order that the distr ict court is correct that plaintiffs' suit is the sort of challe nge to the processes of state and local taxation which federal comity doctrines and the Tax Injunction Act were designed to keep out of a federal district court. The remaining issu e is whether the courts of Delaware can provide plaintif fs with (in the language of the Tax Injunction Act, languag e which we also regard as applicable to the comity aspect o f the case) a "plain, speedy and efficient remedy." This is of course a federal question to be determined by this Court. However, the federal question is one whose basic ingredients constitute a question of Delaware law. Therefore, as ordered below, we will certify to the Supreme Court of Delaware the following question:

To what extent does the jurisdiction of Del aware's courts (whether taken singly or in combinati on) encompass plaintiffs' claims, and to what ex tent are Delaware's courts able to provide such relie f as those claims, if sustained, would entail?

20We seek, that is, to ascertain the degree to which plaintiffs

are able to pursue in the courts of Delaware those claims that they have chiefly pressed in the federal distr ict court: "First, that they were arbitrarily denied the right to vote on a new district. Second, they were arbitrarily denie d an environmental process which we believe to be fixed and vested. And third, that the sewer district that was built is not legitimately or rationally related to an existi ng health

menace for the need for that sewer. And that's the basis of the lawsuit." Argument of Counsel for Plaintiffs at Hearing Before District Court on Motions to Dismiss, Oct. 1 6, 1996, Transcript at 16-17. We seek also to ascertain to w hat degree the requested relief -- including a declarat ory judgment, injunctive relief, and money damages -- m ay be
obtained in the courts of Delaware.

(b) Resolution of the issues of law presented in th e certified question will guide this Court's analysis of the federal question whether a "plain, speedy and effic ient" remedy is available to plaintiffs in the courts of Delaware. In the absence of such an available remedy, this ca se will
be heard in federal courts rather than state courts whether or not this Court concludes that the complaint cons titutes a challenge to processes of state and local taxatio n. An appropriate regard for the delicate balance between state and national judicial authority counsels that, inso far as feasible, decisions relating to the jurisdiction an d remedial capacity of the Delaware state courts -- decisions central to the resolution of this case -- be made by the Delaw are courts themselves.

(c) Our concern about the remedy available in the Delaware courts arises in part from the potential t ension between the decision of the Court of Chancery in De laware Bankers Ass'n v. Division of Revenue of the Dep't o f Finance, 298 A.2d 352, 356 (Del. Ch. 1972) (holding that in some cases there is an adequate remedy at law for a n attack on an illegal or unconstitutional tax throug h the Tax Appeal Board), and that of the Superior Court in Ta tten Partners v. New Castle County Bd. of Assessment Rev iew, 642 A.2d 1251, 1262-65 (Del. Super. 1993) (holding that taxpayer could not have presented substantive due p rocess claim to the Board of Assessment Review because of the limited jurisdiction of that board);

21(4) The important and urgent reasons for an immedia te

determination by the Supreme Court of Delaware of t he question certified are:

(a) Determination of the certified question is impo rtant to the resolution of a controversy that assertedly affects some 7000 Delaware property owners and challenges outlays of at least $70,000,000. The State of Delaw are has a substantial interest in ensuring the most authori tative possible determination of the issues on which this litigation

turns.

(b) A definitive determination by the Supreme Court of Delaware of the remedies available to plaintiffs in the
Delaware state courts will obviate the need for thi s Court to speculate on that question, and will avert the poss ibility
that this Court would arrive at a conclusion incons istent with the authoritative result that might be obtaine d from Delaware's highest court;

(5) If certification is accepted, it is recommended that the plaintiffs (Joseph Kerns, et al.) be appellants, an d that the defendants (Dale R. Dukes, et al.) be appellees, fo r purposes of the caption on any filings in the Supre me Court of Delaware with respect to the question cert ified.

NOW, THEREFORE, IT IS ORDERED that the following question of law is certified to the Supreme Court o f the State of Delaware for disposition in accordance wit h Rule

41 of that Court:

To what extent does the jurisdiction of Del aware's courts (whether taken singly or in combinati on) encompass plaintiffs' claims, and to what ex tent are Delaware's courts able to provide such relie f as those claims, if sustained, would entail?

In accordance with Supreme Court Rule 41, it is recommended that briefs shall be filed in the Supre me Court in the following order: the initial brief sha ll be filed by the plaintiffs as appellants, and any responsive brief(s) shall be filed by the defendants as appellees.

This Court shall retain jurisdiction meanwhile.

BY:
Louis H. Pollak

22FOR: Dolores K. Sloviter

Chief Judge United States Court of Appeals
for the Third Circuit

Jane R. Roth Circuit Judge United States Court of Appeals
for the Third Circuit

Louis H. Pollak District Judge
United States District Court
for the Eastern District of Pennsylvania (sitting by designation)

DATED: July 31, 1997

Counsel for the Parties:

FRANCIS J. TRZUSKOWSKI

JAMES F. KIPP

FRANCIS J. SCHANNE Trzuskowski, Kipp, Kelleher & Pearce 1020 N. Bancroft Parkway

P.O. Box 429 Wilmington, DE 19899 Attorneys for Appellants

CARL SCHNEE

PATRICIA A. PYLES Prickett, Jones, Elliott,
Kristol & Schnee 1310 King Street

P.O. Box 1328 Wilmington, DE 19899

23DENNIS L. SCHRADER

VERONICA O. FAUST Wilson, Halbrook & Bayard

107 West Market Street

P.O. Box 690 Georgetown, DE 19947 Attorneys for Appellees Dale Dukes, George J. Collins, William D. Stevenson, Sr., George B. Cole, Ralph E. Benson, Robert L. Stickels, and Robert W. Wood

KEITH A. TROSTLE DAVID L. ORMOND, JR.

KEVIN P. MALONEY Department of Justice Carvel State Office Building

820 N. French Street Wilmington, DE 19801 Attorneys for Appellees Christophe A.G. Tulou, Edwin H. Clark, and Gerald Esposito

24APPENDIX B

Joseph KERNS, Kathleen Kerns, William M. Torney, Lo is
A. Torney, Maureen Moyer, John D. Coffman and Martha C. Coffman, individually and as representative plaintiffs on behalf of the certified class, Defend ants Below, Appellants,

v. Dale DUKES, individually and as Sussex County
Government President and Council President, and George J. Collins, individually and as Sussex County Council Member, and William D. Stevenson, individually and as Sussex County Council Member, and George B. Cole, individually an d as Sussex County Council Member, and Ralph E. Benson, individually and as Sussex County Member, and Robert L. Stickels, individually and as Sussex Coun ty Administrator, and Robert W. Wood, individually and as Sussex County Engineer
, and Christophe A. Tulou, individually and as Delaware Department of Natural
Resources and Environmental Control Secretary, and Gerald L. Esposito, individu ally
as a Director of Delaware Department of Natural Resources and Environmental Control, and Edwin H. Clark, individually and as then Secretary of Del aware Department of Natural Resources and Environmental Control, Plaintiffs Bel ow, Appellees.

No. 338, 1997.

Supreme Court of Delaware.

Submitted: Jan. 20, 1998.

Decided: March 27, 1998.

Court Below: United States Court of Appeals for the Third Circuit, Docket No. 96-7751.

25Francis J. Trzuskowski, James F. Kipp, Francis J.

Schanne (argued), and F.L. Peter Stone, Trzuskowski , Kipp, Kelleher & Pearce, P.A., Wilmington, for Appellants

.

Dennis L. Schrader (argued) and Veronica O. Faust, Wilson, Halbrook & Bayard, Georgetown and Carl Schn ee, and Patricia A. Pyles McGonigle, Prickett, Jones, E lliott, Kristol & Schnee, Wilmington, for Appellees Dale R. Dukes, George J. Collins, William D. Stevenson, Sr., Georg e B. Cole, Ralph E. Benson, Robert L. Stickels, and Robe rt W.
Wood.

Keith A. Trostle, Deputy Attorney General, Departme nt of Justice, Wilmington, for Appellees Department of Na tural Resources and Environmental Control and Secretary Christophe A. Tulou.

Kevin P. Maloney, Deputy Attorney General, Departme nt of Justice, Wilmington, for Appellees Department of Natural
Resources and Environmental Control and Director Ge rald P. Esposito.

David L. Ormond, Jr., Deputy Attorney General, Department of Justice, Wilmington, for Appellees De laware Department of Natural Resources and Environmental Control and Secretary Edwin H. Clark.

Before VEASEY, C.J., WALSH and BERGER, JJ.

WALSH, Justice:

This matter originated through the filing of a civi l action
in the United States District Court for the Distric t of
Delaware. Plaintiffs in that action are Sussex Coun ty, Delaware, property owners (the "Property Owners"), who challenged the decision to create a new sewer distr ict, in which they are included, and the actions taken to implement that decision by defendants, the members and officials of the Sussex County Council (the "County ") and officials of the Delaware Department of Natural Res ources and Environmental Control ("DNREC"). The District C ourt dismissed the action on jurisdictional grounds, and the Property Owners appealed to the United States Court of Appeals for the Third Circuit (the "Third Circuit")

.

By order dated July 31, 1997, the Third Circuit cer tified the following question of law to this Court:

26To what extent does the jurisdiction of Dela ware's

courts (whether taken singly or in combinati on) encompass plaintiffs' claims, and to what ex tent are Delaware's courts able to provide such relie f as those claims, if sustained, would entail?

For the purpose of this certification, the Third Ci rcuit assumes that the Property Owners' suit is the sort of challenge to the processes of state and local taxat ion that federal comity doctrines and the Tax Injunction Act were designed to preclude from the jurisdiction of feder al district

courts.1

We conclude, in answer to the certified question, t hat the Court of Chancery would have jurisdiction over a st ate action based on the Property Owners' claims and cou ld provide full relief on those claims, if sustained.

I.

The Property Owners' suit was brought as a purporte d class action, with the class estimated at 7,000 Sus sex County property owners. They assert standing to pur sue their claims as taxpayers. The Property Owners cont end that they are being compelled to discontinue relian ce on their own septic systems, and to join and to pay th e costs of, and fees for, the expanded sewer system. In the complaint, the Property Owners allege: (i) violatio n of their procedural due process rights, under the 14th Amend ment and 42 U.S.C. S 1983, by the County's failure to ho ld a vote on expansion of the sewer district; (ii) violation of their substantive due process rights, under the 14th Amen dment and 42 U.S.C. S 1983, by actions taken by the Count y and DNREC, which were not based on any rationally supportable public health concern and which impinge upon their use and enjoyment of their real property thou gh financial charge and legal encumbrances thereon; an d (iii) failure by DNREC to undertake environmental and cos t

___________________________________________________ ______________

1. The Tax Injunction Act provides that federal cou rts "shall not enjoin, suspend or restrain the assessment, levy or collect ion of any tax under State law where a plain, speedy and efficient remed y may be had in the

courts of such State." 28 U.S.C. S 1341.

27reviews federally mandated in the Clean Water Act ( the

"CWA"), see 33 U.S.C. S 1251,et seq.2 The Property Owners'
counsel summarized their claims as

[f]irst, that they were arbitrarily denied t he right to vote on a new district. Second, they were arbitra rily denied an environmental process which we believe to befixed and vested. And third, that the sewer distri ct that was built is not legitimately or rationally rela ted to an existing health menace....

As relief, the Property Owners request, "for themse lves and all other members of the class," that:

A. The rights of the class members to have an election on the establishment of the "West R ehoboth Expansion of the Dewey Beach Sanitary Sewer District" be adjudicated and declared, and that the pr ior unlawfully decreed Sewer District be declare d void ab initio;

B. The defendants and each of them be tempo rarily and permanently restrained and enjoined from requiring members of the class to connect to the unlawfully created sewer district and from c harging or assessing said members of the class for the costs of creating, constructing, maintaining and oper ating said sewer district (and any debt thereon), unles s and until such time as the sewer district is lawfully created by election and compliance with 9 Del.C. ch. 65 , after proper environmental and cost review, and fr om any further construction of said sewer district, or creation of new debt thereon, without further order o f the
Court;

C. The defendants be Ordered to notify all persons, within the said sewer district, of their rig ht to refuse to connect and/or disconnect and the right to r eceive a refund, if exercising said right, of any cap italization

___________________________________________________ ______________

2. Property Owners also bring a fourth claim, based solely on state law, which is before the federal court as a claim supple mental to validly pleaded federal claims. Because only the validity o f the federal claims is now before the Third Circuit, there is no need to c onsider the fourth
claim at this time.

28fees previously paid and/or any quarterly ra tes or

other fees and costs paid regarding said sew er district;

D. The plaintiffs be awarded attorneys' fee s and other applicable costs or fees pursuant to 4 2 U.S.C. section 1988;

E. The plaintiff class be awarded money dam ages incident to the equitable relief requested a nd such monies placed in trust. Such monies shall be sufficient to compensate the plaintiff class members fo r any liability and costs incurred on the new sewe r district, including but not limited to costs of connec tions, fees previously paid by plaintiffs to the defenda nts plus interest, and to pay for any debt created fr om the construction of the sewer district; and

F. Plaintiffs have such other legal and equ itable relief as the Court may deem appropriate, in cluding costs and expenses.

(Complaint at 19-20 (emphasis in original).) In sum , the Property Owners seek declaratory relief, injunctive relief, money damages, and counsel fees.

The County and DNREC moved, on various grounds, to dismiss all or part of the suit, or, in the alterna tive, to stay the suit pending state court resolution of state la w questions. The United States District Court for the District of Delaware dismissed the suit for lack of jurisdic tion based on the Tax Injunction Act.3 Kerns v. Dukes, D.Del., 944 F.Supp. 1214, 1219-22 (1996). The District Court concluded, in part, that allowing the Property Owne rs to pursue their claim in federal court would result in "substantial federal court interference in [Sussex] County's revenue collecting ability." Id. at 1222.

The Property Owners appealed the dismissal to the T hird Circuit, where the appeal is now pending. To addres s fully the Property Owners' claims on appeal, the Third Ci rcuit must determine the federal question of whether a"pl ain,

___________________________________________________ ______________

3. The District Court also dismissed the suit on th e alternative ground of comity. Because the question as certified implicate s only the jurisdictional ruling, we do not address comity con cerns.

29speedy and efficient"4 remedy is available for the Property

Owners in Delaware's courts. Specifically, the Thir d Circuit seeks guidance from this Court as to the following:

We seek, that is, to ascertain the degree to which plaintiffs are able to pursue in the courts of Delaware those claims that they have chiefly pressed in the federal district court: `First, that they we re arbitrarily denied the right to vote on a new district. Second, they were arbitrarily denied an environmental pro cess which [they] believe to be fixed and vested. And t hird, that the sewer district that was built is not legitim ately or rationally related to an existing health men ace for the

need for that sewer....' We seek also to asc ertain to what degree the requested relief--including a declaratory judgment, injunctive relief, and money damages--may be obtained in the courts of De laware.

The Third Circuit certified its question to this Co urt out of concern for what it sees as "potential tension" bet ween the decision of the Court of Chancery in Delaware Banke rs Association v. Division of Revenue of the Departmen t of Finance, Del.Ch., 298 A.2d 352 (1972), and the Supe rior Court's holding in Tatten Partners v. New Castle Co unty Board of Assessment Review, Del.Super., 642 A.2d 12 51 (1993).

II.

This Court must examine a certified question of law in the context in which it arises. Rales v. Blasband, Del.Supr., 634 A.2d 927, 931 (1993). "The scope of issues that may be considered in addressing a certified question is li mited by the procedural posture of the case." Id. The matter before the Third Circuit on appeal arises from a motion to dismiss. On appeal from a motion to dismiss, all well-pled allegations of the complaint are accepted as true. Precision Air, Inc. v. Standard Chlorine of Del., Inc., Del.S upr., 654 A.2d 403, 406 (1995). Moreover, our certification acceptance is limited to the facts stated in the Th ird Circuit's Order of certification. Supr.Ct.R. 41(c)( iv). This

___________________________________________________ ______________

4. Tax Injunction Act. 28 U.S.C. S 1341.

30requirement necessarily limits the scope of our hol ding to

the facts recited infra.

A.

We first consider the Property Owners' claims broug ht pursuant to 42 U.S.C. S 1983, alleging violation of substantive and procedural due process rights by th e County and by DNREC. State courts have concurrent jurisdiction with the federal courts over actions b rought under S 1983. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). Thus, the state c ourts of Delaware may hear the Property Owners' S 1983 claim s.

The Property Owners express concern about an appare nt conflict between the holdings in Delaware Bankers a nd
Tatten Partners. A closer examination of the two ca ses, however, reveals that there is no actual tension. I n Delaware Bankers, the Court of Chancery declined to exercise equitable jurisdiction because there was a n adequate remedy at law for the alleged constitution al violations resulting from the application of a tax- -review by the State Tax Commissioner, followed by appeals, as of right, first to the Tax Appeal Board and finally to the Superior Court.5 298 A.2d at 358. Tatten Partners h olds that a taxpayer's S 1983 claim against the county B oard of Assessment is not properly before the Superior Cour t on appeal from the Board because judicial review is li mited to the merits of the assessment proceeding. 642 A.2d a t 1262. These cases, however, do not prevent primary jurisd iction in either the Superior Court or the Court of Chance ry over direct claims made pursuant to S 1983. Further, the Property Owners are not barred from access to the S uperior Court by Tatten Partners because there is no admini strative remedy that they must first exhaust. See Del.C., ti tle 9; Carr v. Board of Assessment Review, Del.Super., C.A . No. 93A-04-008, Graves, J., 1995 WL 109003 (Feb. 22, 19 95); Riley v. Banks, Del.Super., 62 A.2d 229 (1948).

While concurrent jurisdiction over S 1983 claims ma y lie

___________________________________________________ ______________

5. Delaware Bankers also addresses the requirements for class actions under Court of Chancery Rule 23.

31in either the Superior Court or the Court of Chance ry, the

selection of the forum is dictated by the relief so ught. The Property Owners seek declaratory relief, injunctive relief and money damages on their S 1983 claims. 6 They al so seek an award of attorney's fees pursuant to 42 U.S.C. S 1988.

The Court of Chancery has exclusive jurisdiction wh ere injunctive relief is sought. 10 Del.C. S 341; Clark v. Teeven Holding Co., Del.Ch., 625 A.2d 869, 875 (1992) (cit ing 1 Pomeroy, Equity Jurisprudence S 139 (5th ed. 1951)) . See also, du Pont v. du Pont, Del.Supr., 85 A.2d 724 (1 951). The Court of Chancery may award declaratory relief, whe re there is otherwise a basis for equitable jurisdicti on. 10 Del.C. S 6501. The requests for an award of money d amages and for attorneys' fees do not prevent the Court of Chancery from exercising jurisdiction over the S 19 83 claims. The Court of Chancery, in its discretion, m ay elect to exercise jurisdiction over legal claims concurre nt to equitable claims properly before it. Clark, 625 A.2 d at 881- 82. Once the Court of Chancery accepts jurisdiction over the entire controversy, the court is empowered to r esolve the entire controversy, even if doing so requires a n award of a purely legal remedy, such as money damages. Wi lmont Homes v. Weiler, Del.Supr., 202 A.2d 576, 580 (1964 ). Finally, sovereign immunity does not bar an action brought pursuant to S 1983. See Will v. Michigan Dept. of S tate Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2312 n. 10, 105 L.Ed.2d 45 (1989) (injunctive relief is availab le under S 1983 against a state official in his or her offic ial capacity); Monell v. Department of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978) (S 1983 applies to municipalities and other local governments). Acc ordingly, the Court of Chancery has jurisdiction over the Pro perty
Owners' S 1983 claims.

With respect to the equivalency of the relief avail able in

___________________________________________________ ______________

6. To the extent that it is later determined that a n adequate remedy at law exists for the Property Owners' S 1983 claims, which the Third Circuit has assumed to be challenges to state taxat ion, neither a Delaware court nor a federal court could award inju nctive or declaratory
relief. National Private Truck Council v. Oklahoma Tax Cmm'n, 515 U.S. 582, 592, 115 S.Ct. 2351, 2357, 132 L.Ed.2d 509 (19 95).

32Delaware's courts, the concurrent jurisdiction of s tate

courts over S 1983 claims allows for relief identic al to that available in federal courts. Further, the Property Owners would be entitled to recover attorneys' fees, pursu ant to 42 U.S.C. S 1988, in Delaware's courts, provided that they establish that disposition of the case was on "subs tantial" constitutional grounds. Slawik v. State, Del.Supr., 480 A.2d 636, 640-41 (1984). In any event, the inability to recover attorneys' fees does not render the state remedy inadequate. National Private Truck Council, 515 U.S . at 592, 115 S.Ct. at 2357. Accordingly, the answer to the c ertified question is that Delaware's courts would have juris diction over the Property Owners' S 1983 claims and, should the Property Owners prevail, they would be entitled to relief equivalent to that available in a federal court.

B.

Turning next to the Clean Water Act claims, we are asked
to determine whether Delaware's courts would have jurisdiction over a state action embracing the subs tance of those claims and, should the Property Owners prevai l, whether Delaware's courts could grant relief equiva lent to
that available in federal court. The answer to the relief question controls the jurisdiction question and, th us, must be addressed first. Upon careful review of the Prop erty Owners' complaint, it appears clear that they seek injunctive relief requiring DNREC to perform federa lly
mandated environmental and cost reviews. See Wester n Air Lines, Inc. v. Allegheny Airlines, Inc., Del.Ch., 3 13 A.2d 145 (1973). The relief available in a citizen suit brou ght pursuant to 33 U.S.C. S 1365(a)(2)7 is limited to: (i) an order

___________________________________________________ ______________

7. 33 U.S.C. S 1365(a)(2) provides that

any citizen may commence a civil action on h is own behalf--

* * *

(2) against the Administrator where there is an alleged failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administ rator.

The district courts shall have jurisdiction ... to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty...

.

33directed to the EPA Administrator8 requiring perfor mance of

a nondiscretionary duty, such as performing the environmental and cost reviews; and (ii) an award o f costs, including attorneys' fees pursuant to 33 U.S.C.S 13 65(d),
to be made at the discretion of the District Court.

Under 29 Del.C. S 8003(12)9 and the State Revolvin g Fund Agreement,10 the DNREC Secretary is required to con duct an environmental review. This review is mandatory a nd may be enforced in equity. See Choma v. O'Rouke, De l.Ch., 300 A.2d 39, 41 (1972) (Court of Chancery may revie w a decision by an state agency administrator where the decision was arbitrary or an abuse of discretion). DNREC is not protected from injunctive relief by the doctrin e of sovereign immunity. See Will, supra. Thus, it appea rs that the Property Owners would be able to obtain an inju nction ordering performance of the reviews they seek. With respect to attorneys' fees, the Court of Chancery may award attorneys' fees as costs pursuant to 10 Del.C. S 51 06 and Court of Chancery Rule 54(d), where, in its discret ion, the equities so dictate. Wilmington Trust Co. v. Coulte r, Del.Ch., 208 A.2d 677, 681-82 (1965). Accordingly, it appear s that equivalent relief is available in the Court of Chan cery.

Because injunctive relief is sought, jurisdiction l ies in the Court of Chancery. 10 Del.C. S 341; Clark, supra. I t does not appear that there are any requirements incident to securing preliminary injunctive relief in the Court of Chancery that would not be required of the Property Owners in a federal action. The Property Owners cou ld be

___________________________________________________ ______________

8. The parties agree that the EPA Administrator wou ld not be a necessary party to any state action.

9. 29 Del.C. S 8003(12) provides, in pertinent part , that "[t]he Secretary shall conduct an environmental review of projects o therwise qualifying under this subsection which shall be sufficiently c onsistent with the provisions for environmental review established und er 40 C.F.R., Part 6, and the Secretary's environmental review standards established in Title

7."

10. The State Revolving Fund Agreement is the agree ment between the EPA Administrator and the State of Delaware that pe rmits the grant of federal funds, pursuant to 33 U.S.C. S 1381(a), to provide assistance in the construction, implementation or development of water pollution control programs. 33 U.S.C. S 1382(a).

34required to post a bond under either Federal Rule o f Civil

Procedure 65(c) or under Court of Chancery Rule 65( c).11 33 U.S.C. S 1365(d). Further, there are no administrat ive remedies that the Property Owners would be required to exhaust before bringing their suit directly in the Court of Chancery.

In sum, the answer to the certified question is tha t the jurisdiction of Delaware's courts encompasses claim s based on the CWA and that Delaware's courts are capable o f providing such relief as those claims, if sustained , would
entail.

On the basis of the foregoing, we conclude that the answer to the certified question is as follows:

The jurisdiction of the courts of Delaware e ncompasses the Property Owners' S 1983 claims as brough t, and such courts may provide relief equivalent to that available in federal court, should the claim s be sustained. The jurisdiction of the courts of Delaware also encompasses state law claims upon which the Property Owners may recover relief equivalen t to that
available in federal court on their CWA clai ms, should they prevail.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

11. Both Fed.R.Civ.P. 65(c) and Ch.Ct. R. 65(c) pro vide that

[n]o restraining order or preliminary injunction sh all issue except upon the giving of security by the applicant, in su ch sum as the court deems proper, for the payment of such costs a nd damages as may be incurred or suffered by any party who is fou nd to have been wrongfully enjoined or restrained.

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