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Padres Hacia Una Vida Mejor, An Unincorporated Association, and El v. Lisa P. Jackson

February 4, 2013

PADRES HACIA UNA VIDA MEJOR, AN UNINCORPORATED ASSOCIATION, AND EL PUEBLO PARA EL AIRE Y AGUA LIMPIO, AN UNINCORPORATED ASSOCIATION,
PLAINTIFFS ,
v.
LISA P. JACKSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY, AND U.S. ENVIRONMENTAL PROTECTION AGENCY,
DEFENDANTS.



ORDER ON DEFENDANTS' MOTION TO DISMISS (Doc. No. 42)

This is a case brought by Plaintiffs under 5 U.S.C. § 706(1) (hereinafter "§ 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. However, on August 30, 2012, Defendants finally issued a letter of dismissal on Plaintiffs' Title VI complaint, which permanently closed the matter. Defendants now move under Rule 12(b)(1) to dismiss this case in light of the Title VI dismissal. The Court ordered additional briefing on several issues, including whether the Court can grant Plaintiffs their requested prospective relief under § 706(1), whether declaratory relief would be "effective" in this case if the requested prospective relief is unavailable, and whether the work done on the now complete Title VI complaint would make it unlikely that Plaintiffs would suffer material delays if they choose to file a second Title VI complaint. See Doc. No. 57. Having received the briefing from the parties, the Court will grant Defendants' motion.

GENERAL BACKGROUND

From the Complaint, Plaintiffs are associations whose members reside in Buttonwillow 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 United States 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. Of particular relevance to this case is the dump in Kettleman City, which is the Kettleman Hills toxic waste dump.

On December 12, 1994, Plaintiffs filed with the EPA's Office of Civil Rights ("OCR") a Title VI discrimination complaint against the 10 Agencies and the owners of the two toxic waste disposal dumps (hereinafter the "Owners"). 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. The letter raised the issue of EPA's failure to adhere to regulatory deadlines in processing Title VI complaints. The letter indicated that EPA had missed the relevant deadline by eight months, and warned that Plaintiffs were aware of their remedies under 5 U.S.C. § 706.

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.

On August 26, 2000, Plaintiffs and other Title VI complainants submitted comments on the EPA's Draft Revised Guidance for Investigating Title VI Administrative Complaints.

Between 2006 and 2007, EPA failed to process a single Title VI complaint in accordance with its regulatory guidelines.

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.

On June 30, 2011, Plaintiffs filed this lawsuit. The Complaint contains a single cause of action 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) *fn1 (hereinafter § 7.115 or § 7.115(c)) 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 § 7.115.

On August 30, 2012, Defendants finally completed their regulatory duties and issued a letter of dismissal of Plaintiffs' Title VI claim. See Doc. No. 41. With that letter of dismissal, Plaintiffs' Title VI complaint, filed over 17 years ago, is now permanently closed. See id.

LEGAL FRAMEWORK

Federal Rules of Civil Procedure 12(b)(1)allows for a motion to dismiss based on lack of subject matter jurisdiction. See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental precept that federal courts are courts of limited jurisdiction. Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). "It is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Vacek, 447 F.3d at 1250. Rule 12(b)(1) motions may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See Wolfe, 392 F.3d at 362; see also Meyer, 373 F.3d at 1039. When a defendant makes a factual challenge "by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Meyer, 373 F.3d at 1039; Savage, 343 F.3d at 1039 n.2. The court need not presume the truthfulness of the plaintiff's allegations under a factual attack. Meyer, 373 F.3d at 1039; White, 227 F.3d at 1242.

DEFENDANTS' MOTION

Defendants' Arguments Defendants argue that dismissal is appropriate for several reasons.

First, the sole remedy for a violation of § 706(1) is to compel the agency's action that has been unlawfully withheld or unreasonably delayed. Plaintiffs' requested prospective injunction would override statutory limitations and would provide relief where no duty has been ignored.

Second, Plaintiffs' lack standing to obtain prospective relief. Plaintiffs have not asserted a concrete and particularized injury caused by the agency's alleged failure to correctly process future complaints. Such a claim would by hypothetical, speculative, and constitute a possible future injury. Further, the prospective relief would not redress the ...


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