The opinion of the court was delivered by: BAUMAN
Defendants United States of America and Port of New York Authority have moved separately pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss this action for lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted. Defendant City of New York has joined in the motions. For the reasons stated below the motions of all defendants will be granted.
This action grows out of the construction of the World Trade Center in downtown Manhattan. Plaintiff Field, President of the New York Counsel of the International Longshoremen's Association, sues individually and on behalf of a class consisting of "all longshoremen, seamen and citizens whose rights are involved and/or have an interest in the establishing of a world trade center in the downtown area of Manhattan, City and State of New York."
As the complaint alleges, the Port of New York Authority is a municipal corporate instrumentality created in 1921 by compact of the States of New York and New Jersey with the consent of the Congress of the United States. It is responsible for maintaining bridges, marine and air terminals and other facilities within the New York Port District. The complaint further alleges the Port of New York Authority undertook the construction of certain buildings to be known as the World Trade Center after it had represented to the public that "the undertaking would be of financial and other economic benefit to the people of New York and that it would create improvement in all forms of commerce and trade."
The complaint rambles on alleging that instead of benefiting the people of New York and the Port District, creation of the World Trade Center has harmed them in the following ways:
1. Longshoremen and seamen have lost jobs and been deprived of a so-called "Constitutional right to the use and benefit of waterfront property and piers and the free use of navigable rivers" because land fill taken from the excavation at the site of the World Trade Center was used to fill in an area of approximately 23.5 acres in the Hudson River on the west side of Manhattan, eliminating, in the process, Piers #3-13 along the riverfront.
2. The citizens of New York City have been deprived of tax revenue by the illegal grant of tax exempt status to the World Trade Center by the States of New York and New Jersey.
Plaintiff also claims there is uncertainty concerning the title to the upland created by the fill and as to the Port Authority's right to engage in real estate development. He questions its obligations under the bond issue which finances the Port Authority Trans-Hudson (PATH) railway system as well as the federal tax exempt status of interest on the bonds used to finance the World Trade Center.
Turning first to the question of subject matter jurisdiction as to the defendant United States of America, plaintiff makes the boot-strap argument that jurisdiction exists because the action is for a declaratory judgment pursuant to Title 28, U.S.C.A., Section 2201. However, the Declaratory Judgment Act by itself does not confer subject matter jurisdiction on the federal district courts. Skelly Oil Company v. Phillips Petroleum Co., 339 U.S. 667, 671, 672, 70 S. Ct. 876, 94 L. Ed. 1194 (1950); R.E.D.M. Corp. v. LoSecco, 291 F. Supp. 53, 58 (S.D.N.Y. 1968), aff'd 412 F.2d 303 (2d Cir. 1969). Some additional statutory basis must be stated in the complaint. It must also be borne in mind that no questions involving federal taxes may be considered under the Declaratory Judgment Act. Title 28, U.S. Code, Section 2201.
Plaintiff's only jurisdictional basis other than the Declaratory Judgment Act is alleged to be the Federal Tort Claims Act, Title 28, U.S. Code, Section 1346. In that connection, he contends that the Secretary of the Army acting through the Corps of Engineers illegally issued a permit
which allowed the Port Authority (with the permission of New York City) to place the fill generated by the construction of the World Trade Center behind the bulkheads along the Hudson River shoreline which formerly supported Piers 3 to 13. He states that this deprived longshoremen of their jobs and was in violation of their "Constitutional rights to the use of the piers."
Government regulation of economic and commercial activities has been sustained repeatedly in the face of claimed denials of "substantive due process of law" such as plaintiff makes here.
The piers in question, except to the extent that Congress imposed limitations, were under the control of the City of New York and were subject to alteration or removal for a public purpose. 1961 City Charter Sections 703, 704; Cf. Montgomery v. Portland, 190 U.S. 89, 105, 23 S. Ct. 735, 47 L. Ed. 965 (1903). Plaintiff does not allege a proprietary or franchise interest in the piers. Compare Appleby v. City of New York, 271 U.S. 364, 46 S. Ct. 569, 70 L. Ed. 992 (1926). His claim of damage rests on the assertion that he or the longshoremen or seamen who had worked there will find no employment at that place in the future. At most, this might constitute an interference with contract rights. But even assuming such an interference, the Federal Tort Claims Act by its terms provides that it shall not apply to "any claim arising out of . . . interference with contract rights." Title 28, U.S. Code, Section 2680(h).
Furthermore, that Act prohibits the institution of an action thereunder "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." Title 28, U.S. Code, Section 2675. No such procedure appears to have been followed here.
It might be argued that the possibility of subject matter jurisdiction exists under the judicial review provisions of the Administrative Procedure Act
or under the general "federal question" provisions of Title 28, U.S. Code.
However, no relief can be afforded by those Sections because of the enactment of legislation in 1968 which had the effect of ratifying the issuance of the permit and eliminating the question of its validity by declaring the filled area to be "non-navigable waters of the United States within the meaning of the laws of the United States",