The opinion of the court was delivered by: MARVIN E. ASPEN
MARVIN E. ASPEN, District Judge:
42 U.S.C. § 9613(h) (Supp. 1991). While conceding that Wausau's reimbursement claim (Count X) falls within one of the five exceptions to the jurisdictional bar, i.e., § 9613(h)(3), defendants argue that this provision deprives this court of subject matter jurisdiction over the remaining claims (Counts I-IX). Defendants' contention, however, fails to account for the current posture of this case; the cleanup measures mandated under the § 9606(a) order were completed on October 25, 1991 and, as such, § 9613(h) is simply inapplicable to the present action.
The legislative history of § 9613(h) clearly reveals that it was enacted to "preclude piecemeal review and excessive delay of cleanup." 132 Cong. Rec. S14928 (daily ed. Oct. 3, 1986) (statement of Sen. Thurmond); see Reardon v. United States, 947 F.2d 1509, 1513-14 (1st Cir. 1991); Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1390 (5th Cir. 1989); Chemical Waste Management, Inc. v. United States Environmental Protection Agency, 673 F. Supp. 1043, 1055 (D. Kan. 1987). Given these purposes, many courts have concluded that § 9613(h) "bars the federal courts from hearing pre-enforcement challenges to the merits of [removal or remedial actions]." Reardon, 947 F.2d at 1512 (emphasis added); see also Boarhead Corp. v. Erickson, 923 F.2d 1011, 1013-14 (3d Cir. 1991); Schalk v. Reilly, 900 F.2d 1091, 1095-96 (7th Cir.), cert. denied, 111 S. Ct. 509, 112 L. Ed. 2d 521 (1990); Voluntary Purchasing Groups, 889 F.2d at 1388; North Shore Gas Co. v. United States Environmental Protection Agency, 753 F. Supp. 1413, 1416-17 (N.D. Ill. 1990), aff'd, 930 F.2d 1239 (7th Cir. 1991). Drawing from this principle, and concluding that opposite circumstances justify an opposite result, we hold that § 9613(h) does not prohibit post-enforcement challenges to remedial or removal actions. See Werlein v. United States, 746 F. Supp. 887, 894-95 (D. Minn. 1990) ("The Court has jurisdiction to hear challenges to a completed, separate phase of the . . . cleanup.").
Defendants argue, however, that even if § 9613(h) is inapplicable to post-enforcement challenges to remedial or removal action, Wausau filed its suit prior to the completion of the cleanup measures and, therefore, its claims fall within the ambit of the jurisdictional bar. While this argument is not meritless, it is overly formalistic. As noted by defendants, § 9613(h) was enacted to affect the "timing" of review. That a potentially responsible party's suit, filed pre-enforcement, was dismissed under § 9613(h) does not preclude that party from refiling post-enforcement. See Wagner Seed Co. v. Bush, 292 App. D.C. 44, 946 F.2d 918, 919 (D.C. Cir. 1991) (After plaintiff's attempt to enjoin enforcement of EPA's § 9606(a) order was dismissed, Wagner Seed Co. v. Daggett, No. 86-0097 (E.D.N.Y. Jan. 27, 1986), aff'd, 800 F.2d 310 (1986), the court considered a reimbursement claim because the company later complied with the cleanup order.), cert. denied, 118 L. Ed. 2d 304, 60 U.S.L.W. 3687, 112 S. Ct. 1584 (1992). As such, were this court to dismiss Wausau's claims because they were filed prematurely, Wausau would undoubtedly refile immediately. Requiring such a hollow procedural exercise would neglect the ends of justice.
In sum, § 9613(h) does not limit this court's jurisdiction to review completed remedial or removal action.
Accordingly, assuming proper jurisdiction under each of the relevant statutes or constitutional provisions, Wausau's claims are entitled to judicial review. We now turn to consider whether this court possesses jurisdiction over Wausau's claim for reimbursement under the specific dictates of CERCLA.
B. Wausau's Claim for Reimbursement (Count X)
Defendants contend that because the EPA has not issued a final decision on Wausau's petition for reimbursement, the instant claim is barred under the explicit dictates of § 9606(b)(2) and the related doctrine of exhaustion of administrative remedies.
When exhaustion is statutorily mandated, the exhaustion requirement is a jurisdictional prerequisite to judicial review. Weinberger v. Salfi, 422 U.S. 749, 764, 95 S. Ct. 2457, 2466, 45 L. Ed. 2d 522 (1975); Boarhead Corp., 923 F.2d at 1023 n.18; Saulsbury Orchards & Almond Processing, Inc. v. Yeutter, 917 F.2d 1190, 1194 (9th Cir. 1990). "Although judicially developed exhaustion requirements might be waived for discretionary reasons by courts, statutorily created exhaustion requirements bind the parties and the courts." Saulsbury Orchards, 917 F.2d at 1194. Section 9606(b)(2) specifies the following prerequisites to judicial review of reimbursement petitions: First, within 60 days after the completion of the requirements of a § 9606(a) order, the party seeking reimbursement must petition the EPA for the reasonable costs of such action, plus interest. 42 U.S.C. § 9606(b)(2)(A) (Supp. 1991). Second, the EPA must "refuse to grant all or part of [the § 9606] petition." Id. § 9606(b)(2)(B). Finally, the petitioner must file the action within 30 days of the EPA's refusal in the appropriate United States district court. Id. We construe the first and second requirements, collectively, to impose an exhaustion requirement central to this court's subject matter jurisdiction.
On March 22, 1991, Wausau initiated the administrative review process by submitting a petition for reimbursement to the EPA's Office of Waste Programs Enforcement ("OWPE"). That petition invoked two responses: (1) a letter dated June 10, 1991, from David A. Ullrich, Director of the Waste Management Division of Region V of the EPA (the "Region's letter"), and (2) a letter dated June 26, 1991, from Bruce M. Diamond, Director of OWPE (the "OWPE letter"). The Region's letter stated that Wausau had not yet complied with the § 9606(a) order, detailing the perceived inadequacies. Wausau argues that this letter constitutes a "refusal to grant" its petition, and its claim is properly before the court. We disagree. Indeed, in its response to Wausau's petition, the OWPE explicitly stated: "Based on the statute [i.e., CERCLA], and the Region's letter, OWPE considers the petition prematurely submitted and will not evaluate the petition until the required action is completed." Rather than deny the petition, in whole or in part, the OWPE gave Wausau two courses of action, either of which would result in the review of its petition: "If you have any basis to demonstrate that you have completed the action, please let us know right away. Otherwise, the Petitioner may, within 60 days after completing the required action, file a new petition with OWPE." The plain language of this letter clearly indicates that Wausau's petition for reimbursement was not being "refused," in whole or part, but rather that further action on the part of Wausau was necessary for the EPA to evaluate the petition.
More significantly, Wausau's actions following receipt of the OWPE letter provide unequivocal confirmation that not only was the EPA's action preliminary, but Wausau understood that fact. On July, 9, 1991, Wausau submitted "Post Response Action Compliance Comments" to the EPA in an effort to demonstrate that it had completed the required cleanup measures. This submission should have placed the EPA in a position to rule on Wausau's petition. However, that opportunity was nullified by this action, also filed by Wausau on July 9, 1991. Indeed, in its prayer for relief in Counts I-III, Wausau seeks to "enjoin defendants from denying Wausau's Petition for Reimbursement of Costs under § 106(b)(2) [ 42 U.S.C. § 9606(b)(2)]." Under these circumstances, even if CERCLA did not mandate exhaustion, Wausau, having initiated administrative remedies, must allow the EPA to render a decision regarding the petition for reimbursement. Cf. McGinty v. United States Dep't of Army, 900 F.2d 1114, 1117 (7th Cir. 1990) (Once government employee, in age discrimination suit, has initiated administrative remedies, they must be exhausted before suit may be filed.). Accordingly, Count X of Wausau's second-amended complaint is dismissed without prejudice.
IV. Individual Defendants' Motion to Dismiss
A. Personal Jurisdiction over Defendant Reilly
Although acknowledging that he was personally served with the summons and second-amended complaint on November 27, 1991, Reilly argues that this court lacks personal jurisdiction over him -- a non-resident defendant. As recognized and argued by the parties, the question of whether this court may exercise personal jurisdiction over Reilly is a question of due process. In order to comport with the dictates of the United States Constitution, Reilly must "have certain minimum contacts" with Illinois "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940)); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985) (The "constitutional touchstone" is "whether the defendant purposefully established 'minimum contacts' in the forum State."); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490 (1980).
It is "foreseeability," and not physical presence, that is critical; the due process analysis entails a determination of whether Reilly's "conduct and connection with the forum State are such that [they] should reasonably anticipate being hauled into court there." World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567; see also Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 283 (7th Cir. 1990). Contacts with Illinois that are "random" or merely "fortuitous" will not be sufficient to "establish that exercise of [Illinois'] jurisdiction was foreseeable." Heritage House Restaurants, 906 F.2d at 283 (citation omitted). In other words, the minimum contacts requirement is satisfied if there is "'some act by which [Reilly] purposefully avails himself of the privilege of conducting activities within [Illinois].'" FMC Corp. v. Varonos, 892 F.2d 1308, 1313 (7th Cir. 1990) (quoting Jacobs/Kahan & Co. v. Marsh, 740 F.2d 587, 592 (7th Cir. 1984)).
In light of the principles discussed above, we conclude that subjecting Reilly to jurisdiction does not offend due process. Reilly is the Administrator of the EPA, working out of Washington, D.C. As Administrator, Reilly supervises the activities of each of the EPA regional offices, including that of Region V located in Chicago, Illinois. By reason of his ultimate authority over the actions taken out of Region V, Reilly should have reasonably foreseen being subjected to the jurisdiction of an Illinois court. See Green v. Carlson, 581 F.2d 669, 676 (7th Cir. 1978) (In an action for inappropriate medical care, the court possessed personal jurisdiction over the Director of the Federal Bureau of Prisons and the Assistant Surgeon General of the United States because the former bore responsibility for the management of the federal prison system and the later was responsible for monitoring the medical services within the prison.), aff'd, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980); cf. The Superior Oil Co. v. Andrus, 656 F.2d 33, 41 (3d Cir. 1981) (For purposes of laying venue, government defendants not personally present in Delaware are nonetheless "found" in Delaware "by reason of their ultimate responsibility for the services rendered there.").
B. Absolute Immunity to State-Law Claims
Defendants argue that they are absolutely immune to the state-law claims (i.e., state-tort claims and state-constitutional claims) asserted against them in their individual capacities, as the exclusive remedy for such claims lies against the United States pursuant to 28 U.S.C. § 2679(d). That provision provides in pertinent part:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1) (Supp. 1991). The Attorney General's designee has made the required certification that the actions of the defendants were within the scope of their employment. The individual defendants now move to dismiss these claims and substitute the government as the sole defendant. The sole issue respecting these claims is whether the defendants were acting within the scope of their employment at the time they arose. Wausau challenges the Attorney General's certification, and we will review the issue de novo. See Hamrick v. Franklin, 931 F.2d 1209, 1211 (7th Cir.), cert. denied, 112 S. Ct. 200, 116 L. Ed. 2d 159 (1991).
It is undisputed that the present scope of employment question is governed by the state law of respondeat superior. Further, the parties each argue in reference to Illinois law and, as such, we will assume for the purposes of this motion that Illinois law controls. Under Illinois law,
an employer may be liable for the negligent, wilful, malicious or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer; however, the employer is not liable to an injured third party where the acts complained of thereby were committed solely for the benefit of the employee.
Randi F. v. High Ridge YMCA, 170 Ill. App. 3d 962, 964, 524 N.E.2d 966, 968, 120 Ill. Dec. 784 (1st Dist. 1988) (citing Webb v. Jewel Companies, Inc., 137 Ill. App. 3d 1004, 1006, 485 N.E.2d 409, 411, 92 Ill. Dec. 598 (1st Dist. 1985), and cases cited therein). Thus, "if an employee commits an intentional tort with the dual purpose of furthering the employer's interest and venting personal anger, respondeat superior may lie; however, if the employee acts purely in his own interest, liability under respondeat superior is inappropriate." Id. at 967, 524 N.E.2d at 970.
Wausau's second-amended complaint does not contain a single factual allegation to indicate that any of the defendants were acting solely for their own interest. At best, accepting all factual allegations as true and drawing all reasonable inferences therefrom, the three individual defendants may have acted under the type of dual purpose described in Randi F. -- conduct under which respondeat superior may lie. Although the issue of whether an employee has departed from the scope of employment by acting purely for his own interest, rather than at least in part for the employer, is normally a question for the jury, Wausau's mere conclusory allegations that defendants acted "arbitrarily, unreasonably, maliciously and in reckless disregard of Wausau's rights" are insufficient to meet its present burden. Accordingly, we dismiss each of Wausau's state-law claims against the individual defendants and substitute the United States as the sole defendant to those claims.
Thus, of the claims against the individual defendants, only those brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), remain.
C. Wausau's Bivens Claims
In Counts I-III of its second-amended complaint, Wausau names the EPA officials in their individual capacities for their purportedly unconstitutional administration of CERCLA. Specifically, Wausau claims that defendants violated its right to procedural due process in that they designated Wausau a PRP and respondent to the § 9606 order without adequate pre-or post-deprivation process, and because they violated pertinent regulations, guidelines and directives relating to CERCLA. Additionally, defendants allegedly violated Wausau's rights to substantive due process and equal protection of the law because the designation was arbitrary. The individual defendants now move to dismiss these claims, arguing as follows: First, Wausau has failed to allege specific, personal misconduct on the part of each defendant. Second, there are special factors in the present litigation that counsel against providing Wausau with a separate damages remedy inferred directly under the United States Constitution. Finally, the individual defendants are shielded from the constitutional claims described above under the doctrine of qualified immunity. Because we agree that Wausau has failed to allege sufficient facts to establish personal responsibility on the part of the individual defendants, we do not reach defendants' other arguments.
It is well established that Bivens actions and actions taken under 42 U.S.C. § 1983 "are identical save for the replacement of a state actor (§ 1983) by a federal actor (Bivens)." Bieneman v. City of Chicago, 864 F.2d 463, 469 (7th Cir. 1988), cert. denied, 490 U.S. 1080, 109 S. Ct. 2099, 104 L. Ed. 2d 661, 109 S. Ct. 2100 (1989). Like a defendant sued in his individual capacity under § 1983, the individual defendants in this case can only be held liable under Bivens for their individual wrongdoing. See Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985), cert. denied, 479 U.S. 816, 107 S. Ct. 71, 93 L. Ed. 2d 28 (1986). Thus, as is the case under § 1983, Bivens does not recognize the doctrine of superiors' liability, McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir. 1984), or the doctrine of respondeat superior. Monell v. Department of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978).
Furthermore, "a showing of mere negligence on the part of [federal] officials is insufficient to implicate an individual's due process rights for purposes of a claim under [Bivens ]." Rascon, 803 F.2d at 273 (citing Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)). Rather, to prevail Wausau must allege "that the official knowingly, willfully, or at least recklessly caused the alleged deprivation by his action or failure to act." Id. at 274; see also Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985).
In seeking leave to file the present second-amended complaint, Wausau stated that they wished
to include in the new pleading, among other things, allegations of defendants' "personal responsibility," i.e., allegations that the individual members of the United States Environmental Protection Agency knew, directed or were otherwise involved in, the acts giving rise to Wausau's causes of action, or that they acted or failed to act with a deliberate or reckless disregard for Wausau's constitutional rights.
Wausau's Supplemental Memorandum in Support of Its Motion for Leave to File a Second-Amended Complaint at 2. With respect to defendants Reilly and Adamkus, Wausau's pleading is devoid of a single factual allegation giving rise to an inference that either defendant bore any personal responsibility for the alleged constitutional deprivations. Instead, Wausau merely states that both Reilly and Adamkus "knew or should have known or, directed, approved, acquiesced in, ordered, sanctioned, set or promoted policy relating to, or otherwise participated in or was involved in, the acts of which Wausau complains, and/or [defendants] acted or failed to act with a deliberate or reckless disregard of Wausau's constitutional rights." This boilerplate amendment, while demonstrating a cognizance of the relevant law, is insufficient to withstand the instant motion to dismiss.
Concerning defendant Constantelos, Wausau's allegations are confined to the fact that Constantelos, as the Director of the Waste Management Division of the EPA for Region V, signed the § 9606 order. This fact alone, however, is insufficient to establish the requisite personal liability for any of the purported constitutional violations. That Constantelos signed the order sheds no light on his involvement in the investigation culminating in that order. The only reasonable inference to be drawn from Constantelos' signature is that he had knowledge that Wausau, along with others, was named as a PRP and a respondent. Even if this knowledge should have alerted him that Wausau's constitutional rights were being infringed, mere knowledge of a constitutional deprivation is inadequate to hold administrators liable in their individual capacities. See Crowder v. Lash, 687 F.2d 996, 1005-06 (7th Cir. 1982) (mere fact that the Commissioner of Corrections, through communications with his subordinates and oral and written communication from the plaintiff, was aware of the conditions in plaintiff's unit is insufficient to establish personal liability). Further, without any indication of the volume of orders passing through Constantelos at any given time, his signature alone does not give rise to an inference of deliberate or reckless disregard of Wausau's constitutional rights. To hold otherwise would be tantamount to authorizing personal liability on the part of any Director for any constitutional violation flowing from each and every order passing through his office. This is precisely the type of broad theory of liability rejected by the Seventh Circuit in Crowder. See id. at 1006.
For the reasons stated above, Wausau's claim for reimbursement under § 9606(b)(2) of CERCLA (Count X), is dismissed without prejudice for failure to exhaust administrative remedies. The federal defendants' motion to dismiss is denied with respect to all other arguments. Given the reasonable foreseeability that defendant Reilly could be subjected to the jurisdiction of an Illinois court, his motion to dismiss for lack of personal jurisdiction is denied. Concluding that each of the individual defendants acted within his scope of employment, we dismiss all of the state-law claims against those defendants and substitute the United States as the sole defendant. Finally, Wausau's Bivens claims against each of the individual defendants is dismissed for failure to plead facts sufficient to support a finding of personal responsibility. It is so ordered.
MARVIN E. ASPEN
United States District Judge
Dated April 6, 1992