Sierra Club v. Rex C. Leathers, 754 F.2d 952, 11th Cir. (1985)

754 F.
2d 952
1 Fed.R.Serv.3d 743
SIERRA CLUB, Plaintiff-Appellant,

v.
Rex C. LEATHERS, et al., Defendants-Appellees.
No. 83-8756.
United States Court of Appeals,

Eleventh Circuit.
March 8, 1985.
Stephen E. O'Day, Atlanta, Ga., Frederick S. Middleton, III, Washington,

D.C., for plaintiff-appellant.
Curtis E. Anderson, Asst. U.S. Atty., Atlanta, Ga., Robert S. Greenspan,
Appellate Staff, Margaret E. Clark, Freddi Lipstein, U.S. Dept. of Justice,
Civ. Div., Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Northern District of
Georgia.
Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior
Circuit Judge.
RONEY, Circuit Judge:
The Sierra Club sought declaratory and injunctive relief against the Federal
Highway Administration and the United States Department of Transportation
alleging they failed to enforce provisions of the Highway Beautification Act
(HBA), 23 U.S.C.A. Sec. 131, regarding the control of outdoor advertising in
South Carolina. The trial court held that defendants' discretionary authority
under the Act is precluded from judicial review under the terms of the statute
and the doctrine of prosecutorial discretion. It dismissed Sierra Club's
complaint. We vacate and remand to the district court to transfer the case to the
United States District Court in South Carolina for further proceedings.
The Highway Beautification Act provides generally for the regulation and
The Highway Beautification Act provides generally for the regulation and
control of billboards and other outdoor advertisements adjacent to interstate and
federal aid primary highways. Its purpose is "to protect the public investment in
such highways, to promote the safety and recreational value of public travel,
and to preserve natural beauty." 23 U.S.C.A. Sec. 131(a). The controls are
described in general terms in subsections (c) and (d) of section 131 of the Act
implemented in detail by Federal Highway Administration (FHWA) regulations
found in 23 C.F.R. Part 750.
The Act requires each state participating in the highway beautification program
to exercise "effective control" over outdoor advertising. States not maintaining
effective control are subject to the Act's enforcement provisions. The penalty
for a noncomplying state is that its federal aid highway funds "shall be reduced
by amounts equal to 10 per centum ... until such time as such State shall provide
for effective control." 23 U.S.C.A. Sec. 131(b). See also South Dakota v.
Adams, 587 F.2d 915 (8th Cir.1978), cert. denied, 441 U.S. 961, 99 S.Ct. 2404,
60 L.Ed.2d 1065 (1979).
Having been notified of alleged violations of the Act in South Carolina by Dr.
Charles Floyd, Chairman of the Department of Real Estate and Urban
Development at the University of Georgia, an FHWA inspection team
conducted a fact finding inspection and delivered a report of its findings and
recommendations. Under the section entitled "recommendations," the report
stated that "[t]he findings of this inspection indicate that South Carolina is not
effectively controlling outdoor advertising." Various corrective measures
designed to bring South Carolina into compliance were suggested, and the
report was submitted to the Administrator.
Dr. Floyd received a letter on July 16, 1981 from the Region 4 FHWA
Administrator indicating that the inspection team report was a draft subject to
future revision. He was further informed on September 9, 1981 that the FHWA
was "satisfied with actions already taken or planned courses of action by South
Carolina ... in assuring compliance with Federal requirements for outdoor
advertising." The letter concluded by noting that the FHWA was making an
"overall assessment" of the outdoor advertising program for the region.
The Regional Administrator, Rex C. Leathers, wrote Dr. Floyd again on

January 7, 1982. He stated that the "overall assessment" mentioned in the
September 9 letter had been completed, and that a "Regional Policy" covering
four HBA issues had been developed. No further administrative action is
indicated in the record, and this letter is apparently the last contact between Dr.
Floyd and defendant prior to instigation of this lawsuit.
Plaintiff sought: (1) a declaratory judgment declaring that South Carolina is not
exercising effective control over outdoor advertising; (2) a mandatory
injunction requiring defendants to make a formal determination that South
Carolina is not exercising that effective control; and (3) a mandatory injunction
requiring defendants to withhold ten percent of South Carolina's federal aid
highway funds until South Carolina demonstrated to the district court's
satisfaction that it was exercising effective control. South Carolina was not
made a party to the lawsuit. The suit was brought in the northern district of
Georgia.
The Act provides that a state whose federal highway funds are reduced
pursuant to the Act's requirements may appeal that decision to the district court
within that state. 23 U.S.C.A. Sec. 131(l ). Review of the district court's holding
is in the "court of appeals for the circuit in which the state is located...." The
congressional purpose behind this section was to ensure "that all these
questions may be raised in a single court action and a multiplicity of suits
avoided." H.R.Rep. No. 1084, 89th Cong., 1st Sess. (1965), reprinted in [1965]
U.S.Code Cong. & Ad.News 3710, at 3718.
In order to carry out the congressional purposes behind these jurisdictional

provisions, South Carolina should be a party to this lawsuit. First, although this
suit is not based on the Secretary's decision to withhold ten percent of South
Carolina's federal highway funds, that is the result plaintiff seeks. Second the
HBA is effective in South Carolina only because of the outdoor advertising
control agreement executed between South Carolina and the FHWA. In effect,
plaintiff is alleging that South Carolina has breached that agreement. The
FHWA denies that the agreement was broken.
10
If this Court were to grant the relief plaintiff seeks, the Secretary would have to
withhold ten percent of South Carolina's federal highway funds. South Carolina
could then ask for judicial review of the Secretary's decision in South Carolina
district court. The Sierra Club would not be a party to that action and the
defendant would be the FHWA. South Carolina, as plaintiff, would contend
that it was not breaching its agreement, the position with which the Agency
agrees. The district court would be faced with the situation of having parties
supposedly on opposite sides of an issue in actual agreement on the underlying
basis of the suit. In any event, for the Georgia court to exercise jurisdiction over
the dispute would necessarily lead to multiple litigation over a single issue,
which Congress sought to avoid.
11
Rule 19(a) of the Federal Rules of Civil Procedure governs party joinder. Under
that rule a court must first determine whether the non-party is subject to service
of process "and whose joinder will not deprive the court of jurisdiction over the
subject matter of the action...." If so, the non-party must be joined as a party if
12
(1) in his absence complete relief cannot be accorded among those already
parties, or (2) he claims an interest relating to the subject of the action and is so
situated that the disposition of the action in his absence may (i) as a practical
matter impair or impede his ability to protect that interest or (ii) leave any of
the persons already parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of his claimed
interest."
13
Fed.R.Civ.P. 19(a). Rule 19(a)'s factors must be reviewed in light of "pragmatic

concerns, especially the effect on the parties and the litigation...." CITContainer Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284, 1290 (11th
Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1017 (1983),
citing Challenge Homes, Inc. v. Greater Naples Care Centers, Inc., 669 F.2d
667, 669 (11th Cir.1982).
14
It is clear in viewing the facts of this case in light of "pragmatic concerns" that
"complete relief" cannot be accorded those already parties without the joinder
of South Carolina. Plaintiff correctly points out that the mere risk of
inconsistent adjudications does not "negate the court's power to adjudicate as
between the parties who have been joined." Fed.R.Civ.P. Advisory Committee
Note. Yet the possibility of inconsistent adjudications is the key to this case.
The issue is whether this court can finally determine a controversy without
South Carolina being made a party.
15
Whether South Carolina is subject to service of process and thus joinable under
Rule 19(a) is problematic. Fed.R.Civ.P. 4(f) limits service of process to the
territorial limits of the district court's state unless a federal statute or other rule
authorizes out-of-state service of process. No federal statute provides for
service of process over South Carolina here. Fed.R.Civ.P. 4(e), however, allows
extra-territorial service "under the circumstances and in the manner" prescribed
by state law. Georgia's long-arm statute, Ga.Code Ann. 9-10-91, could
conceivably meet Rule 4(e)'s requirement. But even if South Carolina could be
joined in the Georgia litigation, the Act gives it a specific right to litigate the
issues in South Carolina and upon joinder, an immediate transfer would be in
order.
16
Therefore, it is appropriate to immediately transfer the case to a United States
District Court under the provisions of 28 U.S.C.A. Sec. 1404(a), which

provides that
17 the convenience of parties and witnesses, in the interest of justice, a district court
For
may transfer any civil action to any other district or division where it might have
been brought.
18
Under 28 U.S.C.A. Sec. 1391(e), venue in an action where the defendants are
federal officials lies either where all defendants reside or where the claim arose.
Certainly plaintiff's claim "arose" in South Carolina, so that venue is proper in
South Carolina as well as in the northern district of Georgia, which is where the
federal officials involved here reside.
19
The district court's decision granting defendant's motion for summary judgment
on the merits is vacated, and the action is remanded to the district court for
transfer to a United States District Court in South Carolina for further
proceedings.
20
VACATED and REMANDED.

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754 F.

SIERRA CLUB, Plaintiff-Appellant,

United States Court of Appeals,

Stephen E. O'Day, Atlanta, Ga., Frederick S. Middleton, III, Washington,

The Regional Administrator, Rex C. Leathers, wrote Dr. Floyd again on

In order to carry out the congressional purposes behind these jurisdictional

Fed.R.Civ.P. 19(a). Rule 19(a)'s factors must be reviewed in light of "pragmatic

Therefore, it is appropriate to immediately transfer the case to a United States

District Court under the provisions of 28 U.S.C.A. Sec. 1404(a), which

VACATED and REMANDED.

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