Federal Jury awards $6.5 million damages against PADEP

On March 4, a federal jury in Philadelphia awarded MFS Inc. $6.5 million in damages against the PADEP Northeast Regional Director, the current and former air quality program managers, and an enforcement attorney.  See:  MFS, Inc. v. Thomas A. Dilazaro et al., No. 08-2508 (E.D. Pa).  In so doing, the jury found that high ranking DEP managers had violated the company's constitutional Due Process and Equal Protection rights, had taken enforcement action as retaliation against the company, and had interfered in efforts to sell the property.    The jury verdict was preceeded by a court ruling that the individuals were not necessarily protected by sovereign immunity, and that the alleged facts, if proven, could in fact constitute violations of First Amendment retaliation and 14th Amendment Due Process and Equal Protection . 

This result is highly unusual because sovereign immunity typically protects a state agency against claims that they enforced regulations unfairly or in a mean spirited way ( which his how clients often feel after a contentious enforcement action).  In the MFS case, the conduct of DEP managers (including the Director) was deemed to be sufficiently outrageous to rise to the level of constitutional violation. 

The impact of this verdict remains to be seen; however it is reasonable to expect more suits alleging constitutional violations as well as increased care n by DEP personnel in the way that enforcement decisions are  both rendered and documented.