ORDER ON DEFENDANTS' MOTION TO DISMISS (Doc. No. 11)
This is a case brought by Plaintiffs under 5 U.S.C. § 706(1) of the Administrative Procedures Act ("APA"). Plaintiffs contend that Defendants have failed to act on a Title VI complaint of discrimination that was filed in 1994. Defendants now move under Rules 12(b)(1) and 12(b)(6) to dismiss this case. For the reasons that follow, the Court will deny the motions.
From the Complaint, Plaintiffs are associations whose members reside in Buttonwillow, California and Kettleman City, California. The populations of Buttonwillow and Kettleman City are majority Latino, and a substantial portion of the populations of these cities are below the poverty line. Two of California's Class I toxic waste disposal sites are located in these cities. The U.S. Environmental Protection Agency ("EPA") has distributed federal financial assistance to ten California agencies ("10 Agencies"). The 10 Agencies are responsible for the permitting and oversight of the Class I toxic waste disposal dumps in Buttonwillow and Kettleman City.
On December 12, 1994, Plaintiffs filed with the EPA a Title VI
discrimination complaint against the 10 Agencies and the owners of the
two toxic waste disposal dumps (hereinafter the "Owners").*fn2
The Title VI complaint alleges that the Owners and the 10
Agencies discriminated against Plaintiffs in the siting, permitting,
expansion, and operation of the toxic waste dumps.
On July 18, 1995, EPA notified Plaintiffs that it had accepted their Title VI complaint for investigation.
On October 14, 1996, Plaintiffs sent a letter to then EPA Administrator, Carol Browner.*fn3
The letter raised the issue of EPA's failure to adhere to regulatory deadlines with respect to processing Title VI complaints. In pertinent part, the letter stated, "The EPA should have completed its preliminary investigation by mid-January of 1996. The EPA missed its deadline by eight months. As of October 1, 1996, the EPA was still evaluating the responses to [Plaintiffs'] complaint and had not formulated nor sent the recipients its preliminary findings and recommendations for achieving voluntary compliance, in violation of 40 C.F.R. § 7.115(c)(1)." Court's Docket Doc. No. 11-3 at p. 11.*fn4 Further, the letter warned: "We are all well aware that there are remedies under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, available to us if EPA continues to fail to meet its statutory and regulatory obligations." Id. at p. 1. The letter included a "remedies" section that recommended that the EPA take 10 steps to remedy the failure to process Title VI complaints. See id. at pp. 16-17.
On December 9, 1996, EPA responded to the October 1996 letter. EPA agreed that it needed to improve the timeliness of its decisional process, and informed Plaintiffs that it had taken steps to enhance the investigation and processing of Title VI complaints so as to address the concerns raised in the letter. The steps included increasing staff and establishing a Title VI work group and task force.
On August 26, 2000, Plaintiffs (as well as 58 other Title VI complainants) submitted comments on the EPA's Draft Revised Guidance for Investigating Title VI Administrative Complaints. Of those complainants, 41 had complaints under consideration or accepted for investigation, and 18 had been rejected on procedural or technical grounds.
Between 2006 and 2007, EPA failed to process a single Title VI complaint in accordance with its regulatory guidelines.
On January 19, 2011, EPA found that, at the time Plaintiffs filed their Title VI complaint, Imperial County Air Pollution Control District was not a recipient of federal financial assistance. Accordingly, the complaints against that agency were dismissed.
On March 21, 2011, Deloitte Consulting released a final report (the "Deloitte Report") that evaluated the EPA's Office of Civil Rights. The Deloitte Report found that EPA had not adequately adjudicated Title VI complaints. The report found that delays in accepting and investigating complaints by the Office of Civil Rights are the result of: (1) the complexity of determining whether a complaint is under EPA's jurisdiction; (2) a lack of EPA methods to conduct needed analysis; (3) a lack of standard operating procedures; and (4) a lack of supporting resources from EPA and staff.
To date, EPA has resolved only one Title VI complaint on the merits. On October 30, 2008, EPA found no adverse impact relating to a steel mill in Flint, Michigan.
On June 30, 2011, Plaintiffs filed this lawsuit. The Complaint contains a single cause of action. Plaintiffs seek relief under 5 U.S.C. § 706(1). Plaintiffs allege that EPA has violated, and continues to violate, 40 C.F.R. § 7.115(c)(1) because it failed to issue preliminary findings and recommendations for voluntary compliance in response to Plaintiffs' Title VI complaint within 180 days of EPA's initiation of investigation. Plaintiffs seeks declaratory and injunctive relief so that EPA will comply with 40 C.F.R. § 7.115.
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). However, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To "avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The Ninth Circuit has distilled the following principles from Iqbal and Twombly:
First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint, but it may take judicial notice of public records outside the pleadings, review materials which are properly submitted as part of the complaint, and review documents that are incorporated by reference in the Complaint if no party questions their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a Rule 12(b)(6) motion is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted where amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. ...