capacity that "cost" was discussed in ARA Leisure was the statement that "the fact that Park Service maintenance personnel were required to work within a budget does not make their failure to maintain [the road in a safe condition] a discretionary function for the purposes of the FTCA." 831 F.2d at 195. The instant case does not involve the requirement of working within a budget. Rather, the Chief of Engineers noted that the alterations found in the Supplemental Assurance were made "in recognition of the need for early protection of the South Shore of Long Island and in an effort to ease the immediate financial burden on local interests." Supplemental Assurance, U.S. Ex. L. At the minimum, this statement reveals that more than monetary concerns were considered by the Corps of Engineers.
Finally, Plaintiff contends that the Corps of Engineers' decisions in the instant case are not susceptible to policy analysis because the record demonstrates that they acquiesced to the demands of a private citizen, Mr. Juan Trippe. The submitted evidence of this citizen's "improper" influence is a letter, dated August 24, 1964, from the Chief of Engineering Division for the Corps of Engineers ("Chief") to the Commissioner of Public Works for the County ("Commissioner"). See Plaintiffs Ex. F. To refresh the memory, this letter was sent after the Supplemental Assurance was signed by the State and County but prior to the issuance of the Georgica Report finding a necessity for groins at Georgica Pond. In that letter, the Chief forwarded a "sketch of the recommended locations of the groins at Georgica Pond." The letter also recommended that the County take no action to acquire any lands because the Chief of Engineers had not yet found a necessity for the proposed Georgica groins. From Plaintiffs perspective, the damning part of the letter occurs when the Chief states: "It is also my understanding that Mr. Juan Trippe was arranging to have the County acquire the lands at minimum cost. Should you now wish to move the groins, I would appreciate your coordinating the matter with Mr. Trippe."
This communication, according to Plaintiff, rendered the decision to not follow the full plan outlined in the Long Island Report an act that is "not entitled to the protection of the [D]iscretionary [F]unction [Excep]tion." Plaintiff provides no case law for this specific proposition. Plaintiff merely provides the cryptic comment that "Can it safely be said that Congress would not be disturbed to find that the [Corps of Engineers] greatly truncated its grand project, and located groins to suit Juan Trippe, and not its own engineers." The Court is not persuaded.
Plaintiffs evidence has merely raised the possibility that Mr. Trippe may have aided the County in acquiring the lands necessary for the groins. There is no indication that this aid predated the County Resolution which demanded the Georgica Groins. The Chiefs mere awareness of Mr. Trippe's involvement does not render the Corps of Engineers' decisions invalid. Moreover, assuming arguendo that Mr. Trippe's alleged influence tainted the County's decision-making, there is no case law for the proposition that the alleged taint carries over to the Corps of Engineers's exercise of discretion. In fact, 28 U.S.C. § 2680(a) provides that the Discretionary Function Exception shall apply "whether or not the discretion involved be abused." Finally, as clearly expressed in the letter, the final decision of whether there was a necessity for the Georgica Groins was in the hands of the Chief of Engineers. There is no indication at all that the Chief of Engineers had knowledge of Mr. Trippe's existence. In sum, while the Court does reach the issue of whether there is a circumstance in which the improper involvement of an individual might possibly invalidate the United States' reliance on the Discretionary Function Exception, the facts of the instant case simply do not support such a finding.
Despite the many arguments presented by Plaintiff and the County, the instant facts present the Court with a decision that readily comports with policy analysis. To paraphrase the Second Circuit from In Re Agent Orange Product Liability Litigation, 818 F.2d 194 (2d Cir. 1987): At issue is a decision of the Army Corps of Engineers' highest superiors that was designed to aid waterfront homeowners in their struggle with hurricane erosion. 818 F.2d at 200. The planning of a project is the classic case of a decision that is susceptible to policy analysis. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The contrary authority cited by the County and by Plaintiff has failed to convinced the Court otherwise.
C. Claims for Equitable Relief.
Plaintiff argues that the Court should continue to maintain all equitable claims against the United States. In support of this argument, Plaintiff relies on Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), for the proposition that an executive officer might not be shielded from suit when he acted unconstitutionally or beyond his statutory powers. This case, and its accompanying argument, fail to persuade the Court. Specifically, Larson held that an executive officer may be enjoined from continuing to enforce a constitutionally infirm statute or regulation. 337 U.S. at 691, 69 S.Ct. 1457. That species of equitable relief bears little relation to the relief sought in the instant case. In the instant case, Plaintiff and the County seek an equitable remedy forcing the United States, not an officer thereof, to remove the offending Georgica groins and to provide massive beach nourishment (through sand fill added to the damaged beaches and dune rehabilitation). Comparing the actual Larson holding to the instant facts, Plaintiffs argument carries little persuasive weight.
In addition, Plaintiff cites Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), for the proposition that "recovery in the Court of Claims is not available if the taking private property for public use is unauthorized." This statement appears accurate. See id. at 127 n. 165, 95 S.Ct. 335. However, the Court cannot ascertain the purpose of stating the limits to the Court of Claims' jurisdiction in the context of this argument.
D. Supplemental Jurisdiction Over Claims Against the United
The County's brief on the exercise of supplemental jurisdiction is perplexing. After raising the issue of supplemental jurisdiction, the County's memorandum devotes three pages to discussing permissive and compulsory joinder. See County's Memorandum at 8-10. As alleged, the County states that it is statutorily barred from providing the relief sought by Plaintiff. As such, the County argues that complete relief cannot be granted unless the United States is joined as a party. This is a requirement under the compulsory joinder provision, Fed.R.Civ.P. 19(b), of the Federal Rules. The County argues that, since Rule 19(b) seems to compel joinder, there are "compelling reasons and exceptional circumstances that warrant the exercise of jurisdiction." Presumably, when the County speaks of "jurisdiction" in this context, it is referring to supplemental jurisdiction. The Court is not persuaded.
This argument fails to account for the underlying reason that the Court lacks subject matter jurisdiction over the United States in this context. The Court's subject matter jurisdiction over the United States exists only to the extent that the United States has waived its sovereign immunity. See Hercules, Inc. v. United States, 516 U.S. 417, 422-423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996); see also Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3654 p. 269 (3d Ed. 1998). Supplemental jurisdiction, as codified in 28 U.S.C. § 1367, does not constitute a waiver of sovereign immunity. Neither does Rule 19(b). As such, the Court will not utilize supplemental jurisdiction in the instant case.
E. The Flood Control Act.
As discussed supra, the Court has held that the exception to the FTCA, codified at 28 U.S.C. § 2680(a), is implicated by the Corps of Engineers' actions in this case. As such, the Court does not reach the issue of whether the Flood Control Act, 33 U.S.C. § 702(c), applies to the facts of the instant case.
For the reasons discussed supra, the Corps of Engineers' exercise of allowable discretion in a manner that is susceptible to policy analysis triggers the exceptions to the FTCA, codified at 28 U.S.C. § 2680(a). Since the challenged actions of the Corps of Engineers fall into the Discretionary Function Exception of the FTCA, the Court does not have subject matter jurisdiction over the claims raised against the United States. See Merritt v. Shuttle, Inc., 245 F.3d 182, 192 (2d Cir. 2001). As such, all of the claims against the United States are DISMISSED. This decision does not reach the remainder of the third-party complaint, asserting claims against the State of New York as well as against individuals working for the state.