Petition for Writ of Certiorari — Residents of Gordon Plaza, Inc., Petitioner v. LaToya Cantrell, in Her Official Capacity as Mayor of the City of New Orleans, Louisiana, et al.
Supreme Court briefMay 25, 2022
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App. 1
United States Court of Appeals
for the Fifth Circuit
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No. 21-30294
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RESIDENTS OF GORDON PLAZA, INC.,
Plaintiff—Appellant,
versus
LATOYA CANTRELL, in her official Capacity as Mayor of
the City of New Orleans; CITY OF NEW ORLEANS,
Defendants—Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-1461
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(Filed Feb. 1, 2022)
Before OWEN, Chief Judge, and CLEMENT and ENGELHARDT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Appellant, the Residents of Gordon Plaza, Inc.
(“Gordon Plaza”), appeals the dismissal with prejudice
of its complaint, filed under the citizen-suit provision
of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6972(a)(1)(B), against the Appellees—LaToya Cantrell, in her official capacity as
Mayor of the City of New Orleans, and the City of New
Orleans (collectively, the “City”).
App. 2
For the reasons that follow, we AFFIRM.
I.
A.
Gordon Plaza is an association of primarily African American residents of a neighborhood called Gordon Plaza located on the site of the Agriculture Street
Landfill (“Site”) that the City previously owned and operated. Because of this previous use, the Site allegedly
contains significant levels of hazardous chemicals and
solid waste. Approximately twenty years after the City
ceased using the Site as a landfill, it developed the Site
for residential use. The City is alleged to have targeted
Black residents in selling the residential units and
without disclosing that the Site had previously been
used as a landfill.
In 1994, the Environmental Protection Agency
(“EPA”) listed the Site as a Superfund site on the National Priorities List (“NPL”) based on concerns about
arsenic, lead, and polynuclear aromatic hydrocarbon
levels. From 1994 to 2001, the EPA fenced off part of
the Site, removed two feet of soil in some areas, placed
a permeable “geotextile mat” over some contaminated
soils, and covered some contaminated soils with about
a foot of soil. In 2002, the EPA announced it had “completed all response actions for the Agriculture Street
Landfill site in accordance with Close Out Procedures
for National Priorities List Sites.”
App. 3
In 2005, Hurricane Katrina devastated New Orleans. The complaint alleges that, after the storm, the
U.S. Agency for Toxic Substances and Disease Registry
(a federal public health agency of the U.S. Department
of Health and Human Services) concluded that chemical concentrations at the Site “pose[d] an indeterminate public health hazard.” And in 2018, the EPA
determined that the soil on nine residential properties
on the Site “may contain contaminant levels that are
unacceptable for non-industrial use.” Gordon Plaza alleges that, because of soil erosion caused by storms and
the passing of time, the geotextile mat is exposed in
some places and missing in others, releasing contaminated soil.
In 2008, the EPA and the City reached a Superfund consent decree (“Consent Decree” or “Decree”) requiring the City to take certain actions to “protect the
remedy” that the EPA installed at the Site, and
“thereby, [protect] the public health or welfare or the
environment at the Site.” The “remedy” is defined as
“the excavation of 24 inches of soil, placement of a permeable geotextile mat/marker on the subgrade, backfilling the excavated area with clean fill, covering the
clean fill with grass sod, landscaping and yard restoration, driveway and sidewalk replacement, and final detailing.” Because the “soil cap and geotextile mat
covering the Site could be breached or degraded by excavation . . . or by the failure to maintain the vegetative cover over the soil cap,” the Decree requires the
City “to maintain the [soil] cap” at the Site. Specifically:
App. 4
The [City] will mow vegetation at least twice
per year, and otherwise maintain[ ] its right of
ways . . . in order to maintain a stable vegetative cover. Because lack of mowing/maintenance by private owners of land within the
Site is likely to damage the subsurface geotextile mat, the City will use its available authorities to (a) require that landowners mow and
otherwise maintain the grass vegetation on
their properties, or (b) undertake the necessary maintenance directly.
The City must also “refrain from using the Site . . . in
any manner that would interfere with or adversely affect the implementation, integrity, or protectiveness of
the remedy.”
The Decree also required the City to provide a
Technical Abstract—a protocol for utility providers to
“follow to maintain the integrity of the permeable soil
and geotextile mat” with instructions on how to
properly excavate beneath the geotextile mat, if necessary—to all utilities operating within the Site, and to
“direct that all of its agencies and departments . . . incorporate the Technical Abstract . . . as standard operating procedures when working within the Site.”
Among its other commitments under the Consent
Decree, the City was required to “designate an official
of the City as the Project Coordinator who will be responsible for ensuring the City’s compliance with the
requirements of the Decree” and who “shall be the lead
point of contact for EPA with the City.” The City “shall
submit to EPA on an annual basis . . . a written
App. 5
progress report that describes the actions which have
been taken to achieve compliance.” And the Decree additionally provides for EPA oversight, including access
for “5-year reviews,” for “[m]onitoring, investigation,
removal, remedial or other activities at the Site,” as
well as for “[a]ssessing [the City’s] compliance with
[the] Consent Decree.”
The EPA’s most recent five-year review report was
issued in 2018 (“2018 Five-Year Review Report”) and
comprises 31 pages of EPA findings and 321 pages of
attachments and appendices. The Report concluded
that the City was in compliance with the Consent Decree. Specifically, the Report stated that the “soil barrier that covers the entire site is in place and expected
to remain in place over time, restricting exposure to
the remaining subsurface contaminants associated
with the site.”
B.
On May 15, 2020, Gordon Plaza brought this citizen suit under RCRA, § 6972(a)(1)(B), alleging that the
Site remains contaminated with hazardous chemicals
causing residents to suffer from cancer and other
health conditions. Gordon Plaza seeks a declaration of
imminent and substantial endangerment and an order
that the City perform an environmental quality analysis, risk assessment, and full abatement of the Site.
The complaint failed to inform the district court of the
2008 Consent Decree between the City and the EPA.
App. 6
The City attached the Decree to its responsive
pleadings and moved to dismiss under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), arguing that
the suit was precluded by RCRA’s statutory bar on citizen suits where a “responsible party is diligently conducting a removal action” pursuant to a consent decree
with the EPA. See 42 U.S.C. § 6972(b)(2)(B)(iv); see also
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C.
§ 9601(23) (providing statutory definition of “removal”
action). The district court took judicial notice of the
Consent Decree and granted dismissal with prejudice
based on its finding that the Decree “requires the City
to perform removal actions on an ongoing basis” and
that Gordon Plaza “fail[ed] to plausibly allege that the
City’s continued actions under the consent decree are
not ‘removal actions.’ ”
Gordon Plaza moved the court to reconsider its final order under Rule 59(e). See FED. R. CIV. P. 59(e).
The district court denied the motion. Gordon Plaza
timely appealed.
We note that the instant lawsuit presents Gordon
Plaza’s second time at bat on these claims—which it
failed to properly inform the district court about as required by the local rules. See E.D. LA. L.R. 3.1. In April
2018, Gordon Plaza filed a RCRA citizen suit against
the City, seeking the relocation of its members (“2018
Litigation”). The suit was dismissed without prejudice
for lack of standing. Residents of Gordon Plaza, Inc. v.
Cantrell (Gordon Plaza I), No. 18-4226, 2019 WL
App. 7
2330450, at *2–3 (E.D. La. May 31, 2019).1 Gordon
Plaza’s motion to amend the complaint was denied
upon the district court’s finding that Gordon Plaza had
acted with “bad faith or dilatory motive” because, in
part, its “theories of recovery [were] intentionally advanced in a piecemeal or disjointed fashion.”
On appeal, Gordon Plaza argues three grounds for
reversal. First, that the district court abused its discretion by relying on the City’s diligent-removal-action
defense, which Gordon Plaza contends was improperly
asserted in a reply brief. Second, that the district court
erred in finding that the City has been diligently engaged in a removal action.2 And third, that the district
court abused its discretion by denying leave to amend.
1
The Gordon Plaza I court offered its view in dicta that the
2008 Consent Decree did not trigger RCRA’s statutory bar
against citizen suits. 2019 WL 2330450, at *3–4. The court found
that the City’s obligations, such as “maintaining a stable vegetative cover, involve basic maintenance of completed removal actions” and are not, themselves, removal actions. Id. at *3. The
court cited no authority for this holding. Because the district
court’s discussion of the citizen-suit statutory bar takes place in
dicta and in a separate civil action seeking distinct relief, it was
not the law of the case in the underlying proceedings. See Med.
Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (law
of the case doctrine “govern[s] the same issue in subsequent
stages in the same case” (emphasis added)).
2
Gordon Plaza disputed the district court’s taking judicial
notice of the 2008 Consent Decree and the 2018 Five-Year Review
Report. It has waived that issue on appeal.
App. 8
II.
We review de novo the grant of a motion to dismiss
under Rule 12(b)(6). See Meador v. Apple, Inc., 911 F.3d
260, 264 (5th Cir. 2018). “To survive a motion to dismiss, 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, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. We accept
all well-pleaded facts as true and draw all reasonable
inferences in favor of the plaintiff. See Kelson v. Clark,
1 F.4th 411, 416 (5th Cir. 2021).
III.
Gordon Plaza sets forth three arguments to challenge the district court’s dismissal of the complaint under RCRA’s statutory bar, which provides that citizen
suits may not be commenced where a “responsible
party is diligently conducting a removal action” pursuant to a consent decree with the EPA. 42 U.S.C.
§ 6972(b)(2)(B)(iv). First, that the district court abused
its discretion by considering whether the City’s actions
under the Consent Decree are removal actions because, according to Gordon Plaza, the City raised this
defense in a reply brief. Second, that the court erroneously determined the City’s actions under the Decree
are “removal” actions. And third, that the court erred
App. 9
when it found the City has been “diligently” performing those actions.
A.
We begin with the threshold issue whether the
City first asserted in a reply brief its defense that its
actions under the Consent Decree constituted “removal” actions. In the Fifth Circuit, a district court
abuses its discretion when it considers new arguments
raised for the first time in a reply brief without providing the “non-movant an adequate opportunity to respond prior to a ruling.” Thompson v. Dall. City Att’y’s
Off., 913 F.3d 464, 471 (5th Cir. 2019) (quoting Vais
Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004)).
Gordon Plaza contends that “[n]either the City nor the
District Court identified any instance in which the City
claimed—before that reply—to have conducted a ‘removal action,’ whether in the case under appeal or in
the preceding case.”
The City first asserted its defense that the Consent Decree with the EPA barred citizen suits under
RCRA in the 2018 Litigation, and the court identified
“[t]he question before [it] [as] whether defendants are
. . . ‘diligently conducting a removal activity’ as required to preclude a citizen suit.” Gordon Plaza I,
2019 WL 2330450, at *3 (quoting 42 U.S.C.
§ 6972(b)(2)(B)(iv)). The City stated that it was “asserting these same grounds for dismissal” in its motion to
dismiss in the proceedings below. The City further explained that “Gordon Plaza’s citizen suit is barred by
App. 10
the RCRA since the EPA has been proceeding with a
removal action . . . and has entered a Consent Decree
with the City . . . in 2008 which has extended additional remediation and with which the City is in
compliance.” In asserting that Gordon Plaza’s suit
was statutorily barred, the City cited 42 U.S.C.
§ 6972(b)(2)(B)(iv). Notably, in its opposition to the motion to dismiss, Gordon Plaza recognized that “Section
6972(b)(2)(B)(iv) would only apply . . . if—in the present tense—‘a responsible party [e.g., the City] is diligently conducting a removal action,’ ” and argued that
“[n]either EPA nor any other party . . . is actually engaging in a removal action because the agency finished
the removal actions.”
Because we find that the City raised its defense
under 42 U.S.C. § 6972(b)(2)(B)(iv) in both the 2018
Litigation and in its motion to dismiss in the instant
suit, we hold that the district court did not abuse its
discretion by considering it.
B.
We turn next to Gordon Plaza’s contention that
this citizen suit is not barred because the City’s obligations under the 2008 Consent Decree are not “removal”
actions. Gordon Plaza sets forth two arguments. First,
that we should accord deference to an EPA statement
in the preamble to a proposed rule, which, according
to Gordon Plaza, represents the EPA’s authoritative
interpretation of “removal” to exclude “operation and
maintenance” activities. Second, that the City’s
App. 11
activities under the Consent Decree do not fall within
the statutory definition of a “removal” action. Neither
contention has merit.
1.
We turn first to the issue whether the EPA has
provided an authoritative interpretation of “removal”
to which we should accord deference under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), or, in the alternative, a persuasive
interpretation under Skidmore v. Swift & Co., 323 U.S.
134 (1944). We find that deference is not appropriate
under either framework.
When reviewing an agency’s legal construction of
the statute that it administers, we apply the two-step
analysis established by the Supreme Court in Chevron.
See 467 U.S. at 842–44. But before leaping into the
Chevron two-step, we must determine whether the
agency construction is of a form that warrants application of the framework at all. The Supreme Court has
instructed federal courts not to reach Chevron steps
one or two unless the court first determines “the
agency interpretation claiming deference was promulgated in the exercise of that authority” to make rules
carrying the force of law. United States v. Mead Corp.,
533 U.S. 218, 227 (2001); see also Dhuka v. Holder, 716
F.3d 149, 155 (5th Cir. 2013) (noting the “predicate requirement that the agency have issued its interpretation in a manner that gives it the force of law”). We
refer to this threshold inquiry as “Chevron step zero.”
App. 12
See Ali v. Barr, 951 F.3d 275, 279 (5th Cir. 2020) (citing
Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV.
187, 191 (2006)).
Gordon Plaza argues that the “EPA has spoken directly to the issue” before us in a proposed rule—specifically, the EPA’s 2002 proposal to delete a particular
Superfund site from the NPL. See EPA, Notice of Intent
to Delete the Del Norte County Pesticide Storage Area
Superfund Site from the National Priorities List, 67
Fed. Reg. 51,528 (Aug. 8, 2002). Gordon Plaza points to
one sentence in the preamble to that proposed rule:
The “CERCLA . . . defines response as removal and remedial actions, and does not include operation and
maintenance activities.” Id. According to Gordon
Plaza, this sentence presents the EPA’s “legal conclusion” that “removal” action excludes “operation and
maintenance.”
Notably, the proposed rule does not indicate an intention to clarify rights and obligations generally with
the force of law but rather to set out a fact-bound inquiry into the application of a regulation to a particular party—here, the provision for NPL site deletion in
the National Oil and Hazardous Substances Pollution
Contingency Plan (“NCP”), 40 C.F.R. § 300.425(e). See
Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); see
also Mead, 533 U.S. at 226. And the specific language
at issue does not purport to provide an agency position
on the statutory definition of a “removal” action but to
parrot Congress’s existing definition for a “response”
action. In any event, we have long held that “proposed
regulations are entitled to no deference until final.”
App. 13
Howard Hughes Co. v. Comm’r, 805 F.3d 175, 185 (5th
Cir. 2015) (quoting In re Appletree Mkts., Inc., 19 F.3d
969, 973 (5th Cir. 1994)). This is, in part, because “a
proposed regulation does not represent an agency’s
considered interpretation of its statute.” Commodity
Futures Trading Comm’n v. Schor, 478 U.S. 833, 845
(1986). And that logic is at play here where the purported legal conclusion from the preamble of the proposed rule fails to materialize in the finalized rule.
The final rule following the proposed rule consists
of one sentence: “Table 1 of appendix B to part 300 is
amended by removing the entry for” the particular site
at issue. EPA, Notice of Deletion for the Del Norte
County Pesticide Storage Area Superfund Site from the
National Priorities List, 67 Fed. Reg. 58,731 (Sept. 18,
2002). The introductory summary of the final rule includes a notably distinct version of the language at
issue: “The EPA and the State of California . . . have
determined that all appropriate response actions under CERCLA, other than Operation and Maintenance
and Five-Year reviews, have been completed.” Id. (emphasis added). The addition of the phrase “other than”
appears to undermine Gordon Plaza’s position by suggesting that operation and maintenance activities are
included within the scope of response activities.
Gordon Plaza persists that the EPA implicitly implemented an interpretation of “removal” that excludes operation and maintenance activities because
the NCP only allows for sites to be deleted from the
NPL “where no further response is appropriate,” 40
C.F.R. § 300.425(e), and “response” is defined to include
App. 14
“removal,” 42 U.S.C. § 9601(25). But obvious separation-of-powers principles prevent us from deferring to
language in the preamble of a proposed regulation that
the EPA declined to include in its final rule, which itself only purported to provide an individual, ad hoc
determination. Appletree Mkts., 19 F.3d at 973. Cf.
Kaufman v. Nielsen, 896 F.3d 475, 484–85 (D.C. Cir.
2018) (declining to accord Chevron deference to agency
letter “singularly focused” on the application of a regulation to one individual and not “clearly intended to
have general applicability and the force of law” (citation omitted)).
Because the language in the proposed rule does
not provide an interpretation of “removal” carrying the
force of law, it fails to pass Chevron step zero and we
do not accord deference under that framework.
Gordon Plaza argues that the language in the proposed rule is at least entitled to Skidmore deference,
which applies to “agency interpretations of statutes
they administer that do not carry the force of law.”
Luminant Generation Co. v. EPA, 675 F.3d 917, 928
(5th Cir. 2012). Skidmore deference follows from the
understanding that agency constructions, even where
not authoritative, are entitled to respect insofar as
they “constitute a body of experience and informed
judgment to which courts and litigants may properly
resort for guidance.” Skidmore, 323 U.S. at 140. However, with the deferential thumb removed from the
scale, only the “well-reasoned views of the agencies implementing a statute” warrant respect. Mead, 533 U.S.
at 227 (quoting Bragdon v. Abbott, 524 U.S. 624, 642
App. 15
(1998)). The weight provided to the agency’s interpretation “will depend upon the thoroughness evident in
its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if
lacking power to control.” Skidmore, 323 U.S. at 140.
The EPA’s proposed rule lacks the necessary
markers of persuasion. This statement about the statutory definition of “response” does not purport to interpret an ambiguous provision of CERCLA, and does not
meaningfully set forward as the subject of notice-andcomment rulemaking the interpretation of an ambiguous statute. Rather, the language at issue is housed in
the preamble of a proposed rule that purports to call
for comment on the ad hoc deletion of a site from the
NPL. The proposed rule is devoid of statutory interpretation or discussion. Its language does not indicate intent to provide a generally applicable interpretation of
“removal.” The sentence at issue—language that was
not adopted in the final rule—lacks the hallmarks of
persuasion and is not entitled to Skidmore deference.
We hold that neither Chevron nor Skidmore deference is warranted.
2.
Gordon Plaza asserts that CERCLA’s definition of
“removal” does not encompass the City’s obligations
under the Consent Decree. The classification of a “removal” action is a question of law. United States v. W.R.
Grace & Co., 429 F.3d 1224, 1234 (9th Cir. 2005).
App. 16
The Consent Decree refers to the City’s obligations
as “proper operation and maintenance practices and
institutional controls.” The parties agree that the
City’s activities are “maintenance” actions. The essence of their dispute is whether the City’s maintenance actions fall within the scope of “removal” actions
under CERCLA.
The Decree provides that, “[u]nless otherwise expressly provided,” terms used in the Decree adopt the
definition provided in CERCLA or in regulations
promulgated thereunder. The Decree does not define
“removal action” or “operation and maintenance practices.” CERCLA does not provide definitions for the
terms “operation” or “maintenance” but defines the
term “removal” as:
The cleanup or removal of released hazardous
substances from the environment, such actions as may be necessary taken in the event
of the threat of release of hazardous substances into the environment, such actions as
may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed
material, or the taking of such other actions
as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.
The term includes, in addition, without being
limited to, security fencing or other measures
to limit access, provision of alternative water
supplies, [and] temporary evacuation and
App. 17
housing of threatened individuals not otherwise provided for. . . .
42 U.S.C. § 9601(23). We have recognized that “Congress intended that the term ‘removal action’ be given
a broad interpretation.” Geraghty & Miller, Inc. v.
Conoco Inc., 234 F.3d 917, 926 (5th Cir. 2000) (quoting
Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836,
843 (6th Cir. 1994)), abrogated on other grounds as recognized by Vine Street LLC v. Borg Warner Corp., 776
F.3d 312, 317 (5th Cir. 2015); see also United States v.
Lowe, 118 F.3d 399, 402 (5th Cir. 1997) (noting the
term is “defined broadly”). The definition of removal
encompasses more than the “cleanup . . . of released
hazardous substances from the environment”; it also
covers the “monitor[ing], assess[ing], and evaluat[ion
of ] the . . . threat of release of hazardous substances”
and the catchall “taking of such other actions . . . to
prevent, minimize, or mitigate damage . . . , which may
otherwise result from a . . . threat of release” of hazardous substances. § 9601(23). Accordingly, we have
observed that removal is “aimed at containing and
cleaning up hazardous substance releases.” Lowe, 118
F.3d at 403 (emphasis added). And this understanding
is reflected in the NCP, which lists examples that, “as
a general rule,” fall within the scope of a removal action, including the “[c]ontainment . . . of hazardous
materials—where needed to reduce the likelihood of
human, animal, or food chain exposure.” 40 C.F.R.
§ 300.415(e)(8).
The definition of “removal” action encompasses
the City’s ongoing obligations under the Consent
App. 18
Decree. The Decree states its objective is to task the
City with fulfilling certain obligations in order to “protect the [EPA’s] remedy on the Site and, thereby, the
public health or welfare or the environment at the
Site.” In parallel language, “removal” broadly includes
the “taking of such other actions as may be necessary
to prevent, minimize, or mitigate damage to the public
health or welfare or to the environment.” 42 U.S.C.
§ 9601(23).
The Decree specifically requires the City to “maintain a stable vegetative cover.” The vegetative cover
prevents erosion of the soil cap and geotextile mat. And
“failure to maintain the vegetative cover” risks that
the soil cap and geotextile mat will be “breached or degraded.” The EPA installed the soil cap and geotextile
mat to protect against “the release or threatened release of hazardous substances at the [Site].” “Because
contaminants have been left in place beneath the geotextile mat,” and “[b]ecause [the] lack of mowing/
maintenance . . . is likely to damage the subsurface
geotextile mat,” “proper operation and maintenance
practices and institutional controls are required to
maintain the integrity of the cap.” Accordingly, the City
is obligated to mow vegetation “at least twice per year”
and to “use its available authorities to (a) require that
landowners otherwise maintain the grass vegetation
on their properties, or (b) undertake the necessary
maintenance directly.” The City was also required to
pass an ordinance requiring property owners to notify
the City if they intend to excavate soil beneath the
geotextile mat, and to “direct that all of its agencies
App. 19
and departments” incorporate the Technical Abstract
as standard operating procedure within the Site.
In sum, the City must maintain the vegetative
cover, which protects the integrity of the geotextile
mat, and thereby prevents the contaminants underneath from being released. This obligation easily falls
within the definition of a “removal” action to include
“the taking of such [ ] actions as may be necessary to
prevent, minimize, or mitigate damage . . . , which may
otherwise result from a release or threat of release.” 42
U.S.C. § 9601(23).
Gordon Plaza wholly fails to engage with the statutory text, except to point out that the definition of “removal” does not explicitly include the terms “operation
and maintenance.” Gordon Plaza then points to EPA
guidance and regulations, terminology in the 2008
Consent Decree and 2018 Five-Year Review, and dicta
in our precedent—all of which Gordon Plaza alleges
contradicts our reading of the statutory definition of
“removal.”
First, Gordon Plaza cites to language in an EPA
regulation defining “[o]peration and maintenance” as
“measures required to maintain the effectiveness of
response actions,” and separately defining “[r]espond
or response” as “remove, removal, remedy, or remedial
action, including enforcement activities related
thereto.” 40 C.F.R. § 300.5. But neither definition informs the definition of “removal” nor whether “removal” actions exclude “[o]peration and maintenance.”
Similarly, Gordon Plaza’s citation to the NCP’s
App. 20
provision that operation and maintenance measures
“are initiated after the remedy has achieved the remedial action objectives” is not helpful because CERCLA
separately defines “remedy” and “removal.” See 40
C.F.R. § 300.435(f )(1); 42 U.S.C. § 9601(23), (24).
Second, Gordon Plaza points to EPA Superfund
guidance separately discussing removal actions and
“post-removal site controls” (“PRSCs”). See EPA, Superfund Removal Procedures: The Removal Response
Decision, Site Discovery to Response Decision, p. 8
(June 1998). But this guidance is not illuminating because the EPA defines PRSCs as “those activities that
are necessary to sustain the integrity of a [ ] removal
action following its conclusion” and concludes that a
PRSC “may be a removal . . . action under CERCLA.”
400 C.F.R. § 300.5.
Third, Gordon Plaza argues that the language in
the Decree and the 2018 Five-Year Review Report reflect that the EPA does not consider the City’s activities to be “removal” actions but “Post-Removal
Activities” and “maintenance and protect[ion]” actions.
But we have already explained that the City’s “maintenance” of the vegetative cover and “protection” of the
geotextile mat falls within the statutory definition of a
“removal” action.
Finally, Gordon Plaza cites to dicta in our precedent that “a ‘removal’ is generally understood to be a
short-term response.” Lowe, 118 F.3d at 402. This generality arises from caselaw distinguishing the statutory definitions of “removal” and “remedial” actions.
App. 21
E.g., Voluntary Purchasing Grps., Inc. v. Reilly, 889
F.2d 1380, 1382 n.4 (5th Cir. 1989). Whether removal
actions are generally short- or long-term by comparison to remedial actions does not determine the specific
question before us. Cf. W.R. Grace & Co., 429 F.3d at
1244 (rejecting that removal actions must be shortterm); Village of Milford v. K-H Holding Corp., 390 F.3d
926, 934 (6th Cir. 2004) (same).
In short, Gordon Plaza has failed to point to authority clearly interpreting “removal” to exclude operation and maintenance activities. We hold that the
City’s maintenance obligations under the Decree are
“removal” actions under CERCLA.
C.
We turn next to Gordon Plaza’s contention that
the City was not “diligently” conducting a removal action. We hold that Gordon Plaza has failed to plausibly
plead this allegation.
At the threshold, we note that the Consent Decree
provides a framework for ongoing monitoring of the
City’s performance of its obligations under the Decree.
Specifically, the Decree provides for annual reporting,
EPA oversight and 5-year review inspections, stipulated penalties if the City is found in noncompliance
with its provisions, and dispute resolution culminating
in court. We take note of these regular reporting and
inspection requirements because RCRA’s statutory
bar on citizen suits is “intended to avert citizen suit
interference with state and federal enforcement
App. 22
activities.” Chico Serv. Station, Inc. v. Sol P.R. Ltd., 633
F.3d 20, 28 (1st Cir. 2011). We observed in the context
of the Clean Water Act—which we have found “requires like interpretation” to the citizen-suit provisions of RCRA, Cox v. City of Dallas, 256 F.3d 281, 308
(5th Cir. 2001)—that “the citizens’ role in enforcing the
Act is ‘interstitial’ and should not be ‘intrusive,’ ” La.
Env’t Action Network v. City of Baton Rouge, 677 F.3d
737, 740 (5th Cir. 2012) (per curiam) (quoting Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 61 (1987)). Here, Gordon Plaza’s complaint addresses the same environmental concerns as the Consent Decree. Cf. A-C Reorg. Tr. v. E.I. DuPont de
Nemours & Co., 968 F. Supp. 423, 430–31 (E.D. Wis.
1997) (finding RCRA citizen-suit not barred by consent
order where plaintiff ’s claims went beyond consent order).
The district court found that “[n]othing in the complaint indicates that the City fails to comply with the
consent decree, or that the City is not diligently conducting a removal action in abiding by the consent decree.” The complaint does not allege that the City is in
violation of the Decree. It alleges that “no responsible
party is diligently conducting a removal action” without any factual allegations in support. In an attachment to the complaint, Gordon Plaza included a photo
of a person lifting a tarp on the ground next to a fenced
off area of vegetation. The photo is dated May 10, 2016,
and captioned: “Exposed geotextile mat (indicating the
interface between fill and contaminated soil).” Gordon
Plaza also points to a statement from the EPA’s 2018
App. 23
Five-Year Review Report (which was attached to the
City’s responsive pleadings): “The City reports quarterly grass cutting . . . , however, during the site inspection, heavily overgrown vegetation . . . was observed.”
Gordon Plaza argues that it has thus plausibly alleged “deficient performance [ ] not adher[ing] to the
actions ordered by the Decree.” We disagree. The photo
attached to Gordon Plaza’s complaint is dated to 2016.
Gordon Plaza concedes that the EPA has since reviewed the Site—in 2018—and found the City in compliance with the Consent Decree. Specifically, that the
“soil barrier that covers the entire site is in place and
expected to remain in place over time, restricting exposure to the remaining subsurface contaminants associated with the site.” And that the City was mowing the
vegetation more frequently than required. The EPA
did not record exposed geotextile mat. The note of
“overgrown vegetation” did not prevent the EPA’s finding the City in compliance with the Decree.
“Factual allegations must be enough to raise a
right to relief above the speculative level.” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Twombly, 550 U.S. at 555). “[W]here the well-pleaded
facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R.
CIV. P. 8(a)(2)). Here, the complaint relies on a single
conclusory statement and a photo predating the EPA’s
conclusion that the City is in compliance with the Consent Decree. We hold that Gordon Plaza has failed to
App. 24
plausibly allege that the City is not diligently performing a removal action.3
IV.
Finally, Gordon Plaza contends the lower court improperly dismissed the complaint without leave to
amend. We disagree. “Whether leave to amend should
be granted is entrusted to the sound discretion of the
district court, and that court’s ruling is reversible only
for an abuse of discretion.” Heinze v. Tesco Corp., 971
F.3d 475, 485 (5th Cir. 2020) (quoting Pervasive Software Inc. v. Lexware GmbH, 688 F.3d 214, 232 (5th Cir.
2012)). But a district court may only deny leave “for a
substantial reason, such as undue delay, repeated failures to cure deficiencies, undue prejudice, or futility.”
Stevens v. St. Tammany Par. Gov’t, 17 F.4th 563, 575
(5th Cir. 2021) (quoting U.S. ex rel. Spicer v. Westbrook,
3
Gordon Plaza also argues that the issue of “diligence” is a
question of fact that cannot be determined at the motion to dismiss stage. We disagree. We have explicitly declined to determine
whether “diligence” is “a fact-intensive question that can only be
answered after the proper development of a record.” See La. Env’t
Action Network, 677 F.3d at 750 (considering the diligent-prosecution bar on citizen-suits under the Clean Water Act, 33 U.S.C.
§ 1365(b)(1)(B)). Gordon Plaza points to our holding in Tanglewood East Homeowners v. Charles-Thomas, Inc., where we found
that “diligence” under § 6972(b)(2)(B) “is a fact issue [ ] that the
complainants cannot be expected to prove[ ] at the pleading
stage.” 849 F.2d 1568, 1574 (5th Cir. 1988). But Tanglewood did
not involve a consent decree binding the responsible party’s conduct, government oversight, reporting requirements, and site examinations; nor did it provide for penalties and dispute resolution
in the case of a violation of the consent decree. We find those differences persuasive here.
App. 25
751 F.3d 354, 367 (5th Cir. 2014)). Absent such factors,
leave to amend should be “freely given.” Fed. R. Civ. P.
15(a).
The district court denied Gordon Plaza’s second
attempt to plead its claims based on its findings of undue delay, bad faith or dilatory motive, repeated failures to cure deficiencies, and undue prejudice to the
City. The court explained that the 2018 Litigation and
the City’s responsive pleading in the instant suit
placed Gordon Plaza on notice of the materiality of
the issue whether the City was diligently engaged in
a removal action and the statutory bar under
§ 6972(b)(2)(B)(iv). Thus the court found the request
for leave to amend unduly delayed and in bad faith.
As discussed, the City properly raised its defense
under RCRA’s statutory bar in both its responsive
pleading and in the 2018 Litigation. Yet, Gordon Plaza
failed to timely amend its pleadings and further failed
to indicate with any particularity the factual allegations with which it proposes to amend its complaint.
Indeed, Gordon Plaza implied in its briefing before us
that it cannot provide more detailed allegations “without the benefit of discovery.” Based on Gordon Plaza’s
repeated failure to cure its pleadings and lack of diligence to present any indication of the factual allegations with which it seeks to amend its complaint, we
hold that the district court did not abuse its discretion
in denying leave to amend.
*
*
*
App. 26
We AFFIRM.
App. 27
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
RESIDENTS OF
GORDON PLAZA, INC.
VERSUS
NO. 20-1461
LATOYA CANTRELL, ET AL.
SECTION “R” (3)
ORDER AND REASONS
(Filed Nov. 5, 2020)
Defendants Latoya Cantrell and the City of New
Orleans (collectively “the City”) move to dismiss this
matter.1 Plaintiff, Residents of Gordon Plaza, Inc.
(“Residents”) opposes the motion.2 For the following
reasons, the Court grants the motion.
I.
BACKGROUND
This case is a dispute over environmental conditions at Gordon Plaza. Plaintiff alleges that Gordon
Plaza sits atop the former Agriculture Street Landfill
(“ASL”).3 According to the complaint, ASL was a Cityoperated dump from 1909-57 and from 1965-66.4 During those years, plaintiff alleges, the City disposed of
hazardous chemicals and solid waste at ASL.5 And
1
See R. Doc. 13.
See R. Doc. 16.
3
See R. Doc. 1 at 6 ¶ 28.
4
See id. at 5 ¶ 24.
5
See id. at 6 ¶ 26.
2
App. 28
after the City ceased using ASL for waste-disposal purposes, plaintiff contends that the City developed approximately 47 acres of ASL for residential use in the
1970s and 1980s.6 Plaintiff asserts that those residential developments include Gordon Plaza.7
Plaintiff alleges that in 1994, the Environmental
Protection Agency (“EPA”) placed the former ASL site
on its “National Priorities List,” noting concern about
arsenic, lead, and polynuclear aromatic hydrocarbons
levels.8 Following ASL’s placement on the National
Priorities List, plaintiff alleges that from 1994 to 2001,
the EPA fenced off a portion of ASL,9 removed two feet
of soil, and placed a permeable “geotextile mat”10 over
some contaminated areas, and covered those areas
with approximately one foot of soil.11 But, the Residents contend, the EPA did not replace soil or install a
geotextile mat on at least nine residential properties
at Gordon Plaza.12 Plaintiff contends that after the
EPA completed its work in 2002, it published a “Final
6
See id. at 6 ¶ 28.
See id.
8
See id. at ¶ 35.
9
See id. at ¶ 36.
10
According to the Fourth Five-Year Report, “[t]he purpose
of the geotextile fabric . . . [is] to create a physical barrier between
clean cover soils and the underlying contaminated soil.” R. Doc.
13-3 at 18.
11
See R. Doc. 1 at ¶ 36.
12
See id. at ¶ 37.
7
App. 29
Closeout Report” in which the EPA announced that it
would take no further action at ASL.13
Plaintiff alleges that in 2005, Hurricane Katrina
devastated ASL.14 After the storm, the U.S. Agency for
Toxic Substances and Disease Registry (“ATSDR”)—a
federal public health agency of the U.S. Department of
Health and Human Services—allegedly concluded that
chemical concentrations at ASL posed a public health
hazard.15 Plaintiff also contends that flooding and time
have eroded the soil the EPA installed between 1994
and 2001.16
In 2008, the City entered into a consent decree
with the EPA.17 The consent decree requires the City
to take actions to “protect the remedy”18 at ASL, and
“thereby, the public health or welfare or the environment.”19 The consent decree requires the City to “maintain the [soil] cap” at Gordon Plaza and to “provide for
13
See id. at 8 ¶ 43.
See id. at 8 ¶ 45.
15
See id. at 8 ¶ 46.
16
See id.
17
See R. Doc. 13-2.
18
See id. at 9 ¶ 4. The consent decree defines “remedy” as
“the excavation of 24 inches of soil, placement of a permeable geotextile mat/marker on the subgrade, backfilling the excavated
area with clean fill, covering the clean fill with grass sod, landscaping and yard restoration, driveway and sidewalk replacement, and final detailing.” Id. at 8.
19
See id. at 9 ¶ 5.
14
App. 30
appropriate restrictions on use and excavation of the
property.”20
Plaintiff asserts that ASL remains contaminated
with harmful chemicals and that those chemicals
cause cancer and other harmful health conditions.21 On
May 15, 2020, the Residents filed a complaint under
the citizen suit provision of the Resource Conservation
and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B).22
The City filed a motion to dismiss in response.23 The
City argues that there is no subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1).24 In the
alternative, the City argues that the Residents fail to
state a claim under Federal Rule of Civil Procedure
12(b)(6).25 The Court considers the parties’ arguments
below.
II.
LEGAL STANDARD
A. Rule 12(b)(1)
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v.
City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In
20
See id.
See id. at 10-11 ¶¶ 64-71.
22
See R. Doc. 1.
23
See R. Doc. 13.
24
See 13-1 at 1.
25
See id.
21
App. 31
ruling on a Rule 12(b)(1) motion to dismiss, the Court
may rely on (1) the complaint alone, presuming the allegations to be true (2) the complaint supplemented by
undisputed facts; or (3) the complaint supplemented by
undisputed facts and the Court’s resolution of disputed
facts. Den Norske Stats Ojeselskap As v. HeereMac Vof,
241 F.3d 420, 424 (5th Cir. 2001); see also BarreraMontenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996). The party asserting jurisdiction bears the burden of establishing that the district court possesses jurisdiction. Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001).
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, plaintiff must plead enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007)). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. The Court must accept all wellpleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But
the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at
678.
App. 32
On a Rule 12(b)(6) motion, the Court must limit its
review to the contents of the pleadings, including attachments. Brand Coupon Network, L.L.C. v. Catalina
Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The
Court may also consider documents attached to a motion to dismiss or an opposition to that motion when
the documents are referred to in the pleadings and are
central to a plaintiff ’s claims. Id. “In addition to facts
alleged in the pleadings, however, the district court
‘may also consider matters of which [it] may take judicial notice.’ ” Hall v. Hodgkins, 305 F. App’x 224, 227
(5th Cir. 2008) (citing Lovelace v. Software Spectrum,
Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996)).
III. DISCUSSION
A. Judicial Notice
A court may take judicial notice of adjudicative
facts that are not subject to reasonable dispute, either
because they are (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Fed.
R. Evid. 201(b). Conversion of the motion-to-dismiss
into a motion for summary judgment is not required
when the Court takes judicial notice under Federal
Rules of Evidence 201(b). See 5C Wright & Miller, Fed.
Prac. & Proc. Civ. § 1366 (3d ed.) (noting that matters
of which a court can take judicial notice are not considered “matters outside the pleadings” and do not require conversion of a motion to dismiss into a motion
App. 33
for summary judgment); see also Gen. Retail Servs., Inc.
v. Wireless Toyz Franchise, LLC, 255 F. App’x 775, 785
(5th Cir. 2007) (quoting Wright & Miller with approval); Bethea v. St. Pau. Guardian Ins., 2003 WL
292302 (E.D. La. 2003) (“Though the Court may not
look beyond the pleadings [in deciding a 12(b)(6) motion], the [C]ourt may take into account matters of
public record.”).
The Court takes judicial notice of the City’s consent decree with the EPA, which the City has attached
to its motion to dismiss. Group Against Smog and Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 127 (3d Cir.
2016) (taking judicial notice of a consent decree and
noting that consent decrees are “public records as they
are court decisions and final judgments”). The Court
also takes judicial notice of the EPA’s “Fourth FiveYear Report” pertaining to the ASL site, which is also
attached to the City’s motion to dismiss.26 See Funk v.
Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (affirming district court’s decision to take judicial notice of
publicly-available documents and transcripts produced by the FDA).
B. Subject Matter Jurisdiction
When a Rule 12(b)(1) motion is filed in conjunction
with other Rule 12 motions, subject matter jurisdiction
must be decided first because “the court must find jurisdiction before determining the validity of a claim.”
Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172
26
See R. Doc. 13-3.
App. 34
(5th Cir. 1994). Accordingly, the Court turns first to its
subject matter jurisdiction.
The City argues that the Court lacks statutory authority to adjudicate this lawsuit.27 The City points to
several provisions in RCRA that bar suit under the citizen-suit provision:
(b) No action may be commenced under [the
citizen suit provision] of this section if the
[EPA] Administrator, in order to restrain or
abate acts or conditions which may have contributed or are contributing to the activities
which may present the alleged endangerment
...
(i) has commenced and is diligently prosecuting an action under section 6973 of this title or under section 106 of the Comprehensive
Environmental Response, Compensation and
Liability Act of 1980;
(ii) is actually engaging in a removal action
under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980; or
(iv) has obtained a court order (including a
consent decree) . . . pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and
Feasibility Study (RIFS), or proceeding with a
remedial action.
27
See R. Doc. 13-1 at 10-11; R. Doc. 18-1 at 4.
App. 35
42 U.S.C. § 6972(B) (emphases added). The City argues
that the above provisions are jurisdictional, meaning
that if the Court finds plaintiff ’s suit statutorily
barred under one of them, it must dismiss for lack of
subject-matter jurisdiction.
But the City’s argument is unavailing. The U.S.
Supreme Court has made clear that “[w]hen Congress
does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as
nonjurisdictional in character.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 516 (2006); see also Louisiana Envtl.
Action Network v. City of Baton Rouge, 677 F.3d 737,
749 (5th Cir. 2012) (“Absent such a clear statement
from Congress, we hold that the ‘diligent prosecution’
bar is a nonjurisdictional limitation on citizen suits.”).
Moreover, the Fifth Circuit has already clarified
that the first of the above subsections—the “diligent
prosecution” provision—is “a statutory defense, arising
from RCRA itself ” and that it “is not jurisdictional.”
See Cox v. City of Dallas, 256 F.3d 281, 303 n.40 (5th
Cir. 2001) (citing 42 U.S.C. § 6972(B)). And the Seventh
Circuit has explicitly held that the statutory bars in
RCRA are not jurisdictional. Adkins v. VIM Recycling,
Inc., 644 F.3d 483, 491 (7th Cir. 2011) (writing that it
was “incorrect” for the district court to treat RCRA’s
statutory bars as “a question of subject matter jurisdiction”). In Adkins, the Seventh Circuit reasoned that
“RCRA’s limits on citizen suits appear in separate provisions that do not ‘speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.’ ”
Id. at 492 (quoting Zipes v. Trans World Airlines, Inc.,
App. 36
455 U.S. 385, 394 (1982)). Based on this authority, the
Court finds that it has subject matter jurisdiction over
this matter, and it proceeds to consider the parties’
arguments under Federal Rule of Civil Procedure
12(b)(6).
C. Failure to State a Claim
Plaintiff ’s suit is barred under 42 U.S.C. § 6972.
Under § 6972, “[n]o action may be commenced” under
RCRA’s citizen-suit provision if the EPA “has obtained
a court order (including a consent decree) . . . pursuant
to which a responsible party is diligently conducting a
removal action. . . .” Id. (emphasis added). The relevant
statute defines “removal” as “the taking of such . . . actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the
environment.” 42 U.S.C. § 9601 (23) (cross-referenced
by 42 U.S.C. § 6972).
The consent decree requires the City to perform
removal actions on an ongoing basis. In the consent decree, the Court notes that “contaminants have been left
in place beneath the geotextile mat” under Gordon
Plaza.28 It also notes that the soil cap and geotextile
mat “could be breached or degraded . . . by the failure
to maintain the vegetative cover over the soil cap.”29 As
a result, the consent decree provides that “proper operation and maintenance practices and institutional
28
29
See R. Doc. 13-2 at 5.
See id.
App. 37
controls are required to maintain the integrity of the
cap.”30 It orders the City to implement “[w]ork,” i.e.,
satisfy specified “compliance requirements,”31 to
“maintain the [soil] cap and provide for appropriate restrictions on the use and excavation of the property.”32
As to Gordon Plaza, the consent decree requires the
City to “use its available authorities to (a) require that
landowners mow and otherwise maintain the grass
vegetation on their properties, or (b) undertake the
necessary maintenance directly.”33 Additionally, the
City must “maintain and repair the security fence,”34
and “mow vegetation at least twice per year, and otherwise maintain . . . a stable vegetative cover” on property adjacent to Gordon Plaza.35
Plaintiff does not allege that the City fails to abide
by the consent decree. Instead, plaintiff argues that
the consent decree requires maintenance-type actions
that are not removal actions. But this distinction plaintiff draws—without citation to authority—has no basis
in the statute, which defines “removal” actions as those
that “prevent, minimize, or mitigate damage to the
public health” or “environment.” 42 U.S.C. § 9601 (23).
As recently as 2018, the EPA stated that the actions
30
See id. at 5.
The consent decree defines the term “Work” as “the compliance requirements set forth in Section V of the Decree.” Id. at
8-9.
32
See id.
33
See id. at 10.
34
See id. at 8 ¶ 5(a).
35
See id.
31
App. 38
the City has taken, and continues to take under the
consent decree, are “protective of human health and
the environment” and that those actions will “continue
to be protective” into the future.36 In sum, plaintiff fails
to plausibly allege that the City’s continued actions under the consent decree are not “removal actions.” Accordingly, § 6972 bars this suit.
IV. CONCLUSION
For the foregoing reasons, the City’s motion is
GRANTED.
New Orleans, Louisiana, this 5th day of November, 2020.
/s/ Sarah S. Vance
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
36
See R. Doc. 13-3 at 3.
App. 39
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RESIDENTS OF
GORDON PLAZA, INC.
VERSUS
CIVIL ACTION
NO. 20-1461
LATOYA CANTRELL, ET AL.
SECTION “R” (3)
JUDGMENT
Considering the Court’s Order and Reasons1 on
file herein,
IT IS ORDERED, ADJUDGED, AND DECREED
that Plaintiff Residents of Gordon Plaza, Inc’s complaint is dismissed with prejudice.
New Orleans, Louisiana, this 6th day of November, 2020.
/s/ Sarah S. Vance
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
1
R. Doc. 25.
App. 40
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
RESIDENTS OF
GORDON PLAZA, INC.
VERSUS
NO. 20-1461
LATOYA CANTRELL, ET AL.
SECTION “R” (3)
ORDER AND REASONS
(Filed Apr. 30, 2021)
Plaintiff, Residents of Gordon Plaza, Inc., (“Residents”)1 moves for the Court to alter or amend its
Judgment2 dismissing its complaint with prejudice.3
Defendants, LaToya Cantrell and the City of New Orleans (collectively “the City”), oppose the motion.4
Plaintiff alleges that the City marketed a housing
development to predominantly African Americans that
was built on contaminated land in the 1970s and
1980s.5 The complaint alleges that those residents, to
this day, face degradative health effects as a result of
the contaminants beneath their land.6
1
Plaintiff alleges that it is a corporation formed to help the
members of the Gordon Plaza residential community. R. Doc. 1 at
3 ¶ 12.
2
R. Doc. 26.
3
R. Doc. 27.
4
R. Doc. 31.
5
R. Doc. 1 at 6, ¶¶ 28, 32.
6
Id. at 11 ¶ 71.
App. 41
In this case, the Court is presented with a discrete
legal question—whether the Resource Conservation
and Recovery Act (“RCRA”), 42 U.S.C. § 69m, et seq.,
bars plaintiff ’s cause of action. The RCRA says that
“citizen suits,” like plaintiff ’s, cannot proceed under
certain conditions. Having considered RCRA’s text, the
weight of available authority, and the parties’ arguments, the Court is convinced that one of those conditions—a consent decree between the City and the
EPA, and the City’s actions under that consent decree—precludes plaintiff ’s citizen suit. See discussion
infra, Part III.
I.
BACKGROUND
This case arises from the alleged environmental
conditions at Gordon Plaza. In its complaint, plaintiff
alleges that Gordon Plaza sits atop the former Agriculture Street Landfill (“ASL”).7 The Residents allege that
ASL was a City-operated dump from 1909-57 and from
1965-66.8 During those years, plaintiff alleges, the City
of New Orleans disposed of hazardous chemicals and
solid waste at ASL.9 And after the City ceased using
ASL for waste-disposal purposes, plaintiff contends
that the City developed approximately 47 acres of ASL
for residential use in the 1970s and 1980s.10 Plaintiff
7
R. Doc. 1 at 1 ¶ 1.
Id. at 5 ¶ 24.
9
Id. at 6 ¶¶ 25-26.
10
Id. at 6 ¶ 28.
8
App. 42
alleges that those residential developments include
Gordon Plaza.11
Plaintiff alleges that in 1994, the Environmental
Protection Agency (“EPA”) listed the former ASL site
as a Superfund Site on the National Priorities List
(“NPL”), noting its concern about arsenic, lead, and
polynuclear aromatic hydrocarbon levels.12 Following
ASL’s placement on the NPL, plaintiff contends that
from 1994 to 2001, the EPA fenced off a portion of
ASL,13 removed two feet of soil, placed a permeable geotextile mat over some contaminated areas, and covered those areas with approximately one foot of soil.14
Plaintiff alleges that after the EPA completed its work
in 2002, it published a “Final Closeout Report” in
which the EPA announced that it would take no further action at ASL, including at Gordon Plaza.15
In 2005, plaintiff alleges that Hurricane Katrina
devastated the ASL.16 After the storm, the U.S. Agency
for Toxic Substances and Disease Registry
(“ATSDR”)—a federal public health agency of the U.S.
Department of Health and Human Services—allegedly
concluded that chemical concentrations at ASL posed
an indeterminate public health hazard.17 Plaintiff
11
Id.
Id. at 7 ¶ 35.
13
Id. at 7 ¶ 36.
14
Id.
15
Id. at 8 ¶ 43.
16
Id. at 8 ¶ 45.
17
Id. at 8 ¶ 46.
12
App. 43
asserts that the soil the EPA installed between 1994
and 2001 has eroded, and that the hazardous waste at
Gordon Plaza presents an imminent and substantial
endangerment to health and/or the environment.18 On
May 15, 2020, the Residents filed a complaint under
the citizen suit provision of RCRA, 42 U.S.C.
§ 6972(a)(1)(B).19 Plaintiff asks that this Court order,
among other things, the City to fully abate the alleged
endangerment at the former ASL.20
The City moved to dismiss plaintiff ’s complaint.21
In its motion to dismiss, the City informed the Court of
what plaintiff did not mention in its complaint—the
City entered into a consent decree with the EPA in
2008 to address the environmental conditions at Gordon Plaza.22 The City asserted that the consent decree
18
Id. at 8 ¶ 47.
Id. at 13 ¶ 84.
20
Id. at 14 ¶ D.
21
R. Doc. 13.
22
As discussed infra in Part III.E, the record indicates that
plaintiff is the same entity that filed suit against the City in
Residents of Gordon Plaza, Inc. v. Cantrell, No. 18-4226, 2019 WL
2330450 (E.D. La. May 31, 2019). See, e.g., R. Doc. 13-1 at 8; R.
Doc. 35 at 2-3. There, another court dismissed plaintiff ’s claim for
relocation on jurisdictional grounds, holding that plaintiff failed
to establish associational standing. Cantrell, 2019 WL 2330450,
at * 2. The City argued in that case, as it does here, that the consent decree bars plaintiff ’s claim. Id. at *3. After the court found
plaintiff ’s claim dismissible on standing grounds, it considered
in dicta whether the suit would otherwise be able to go forward
notwithstanding the statutory bar. The court’s discussion of the
statutory bar is dicta because it “does not constitute an essential
or integral part of the legal reasoning behind [the] decision.” See
In re Hearn, 376 F.3d 447, 453-54 (5th Cir. 2004) (quoting
19
App. 44
precludes plaintiff ’s citizen suit to enforce the RCRA
on behalf of the EPA.23
The Court took judicial notice of the consent decree.24 The consent decree provides as follows:
Objectives of the Parties. The objectives of the
Parties in entering into this Consent Decree
are to protect the remedy[25] on the [ASL] and,
thereby, the public health or welfare or the environment at the [ASL], by the implementation of the Work and institutional controls by
[the City], and to resolve the claims of [the
United States] against [the City] for Past
Centennial Ins. v. Ryder Truck Rental, Inc., 149 F.3d 378, 385-86
(5th Cir. 1998)). Notwithstanding this earlier litigation, in which
it was made apparent that the consent decree would be material
to whether plaintiff could bring a claim under the citizen-suit provision, plaintiff did not mention the consent decree anywhere in
its complaint when it refiled its claim before this Court.
23
R. Doc. 13-1 at 8.
24
R. Doc. 25 at 7.
25
The consent decree defines the term “remedy” to mean:
The placement of a permeable geotextile mat followed
with orange fencing (to serve as a highly visible
marker), covering the mat/marker with twelve inches
of clean fill, and re-establishing a vegetative layer on
the clean fill on OU1. For OU2 and OU3, the excavation
of 24 inches of soil, placement of a permeable geotextile
mat/marker on the subgrade, backfilling the excavated
area with clean fill, covering the clean fill with grass
sod, landscaping and yard restoration, driveway and
sidewalk replacement, and final detailing.
R. Doc. 13-2 at 8 ¶ m.
App. 45
Response Costs as provided in this Consent
Decree.26
Noting that the “soil cap and geotextile mat covering
the Site could be breached or degraded by excavation
. . . or by the failure to maintain the vegetative cover
over the soil cap,”27 the consent decree provides that
“the City shall implement Work to maintain the [soil]
cap” at the former ASL.28 The consent decree provides:
The [City] will mow vegetation at least twice
per year, and otherwise maintain, its right of
ways within OU1 in order to maintain a stable
vegetative cover. Because lack of mowing/
maintenance by private owners of land within
the Site is likely to damage the subsurface geotextile mat, the City will use its available authorities to (a) require that landowners mow
and otherwise maintain the grass vegetation
on their properties, or (b) undertake the necessary maintenance directly.29
Additionally, the consent decree states that the City
must “maintain and repair the security fence” on property adjacent to Gordon Plaza until 2018.30
26
R. Doc. 13-2 at 9 ¶ 4.
Id.
28
R. Doc. 13-2 at 9 ¶ 5.
29
Id. at 10 ¶ 5(b).
30
Id. at 9 ¶ 5(a). The consent decree provides that the City
“shall maintain and repair the to the security fence . . . for a period of 10 years from the date of entry of the Decree, or until the
Site is delisted from the NPL, or EPA otherwise approves the removal of the fence, whichever is sooner.” Id. at 9 ¶ 5(a).
27
App. 46
The consent decree also requires the City to take
various actions “[w]ithin 60 days from the date of entry
of this Decree.”31 Namely, the consent decree provides
that the City must provide a Technical Abstract32 to all
utilities operating with the ASL, providing instructions on how to excavate soil beneath the geotextile
mat, if such excavation should become necessary.33 It
also provides that “the City will join and maintain its
membership in the LAOne Call program and will designate an office within the City as the point of contact
to provide the Technical Abstract” for utilities operating in the ASL.34 The consent decree also provides that,
the City “will direct that all of its agencies and departments, including the Sewerage and Water Board of
New Orleans,” (SWB) incorporate the Technical Abstract as standard operation procedure at the ASL.35
The consent decree also provides that “within 60
days of the entry of this Decree and on an annual basis
thereafter,” the SWB must include a protocol for
31
R. Doc. 13-2 at 10 ¶¶ 5(c)-(e).
The Technical Abstract, attached to the consent decree,
provides a “protocol” that various utility providers “should follow
to maintain the integrity of the permeable soil and geotextile mat
implemented” by the EPA. That protocol includes, for example,
notifying the City that excavation below the geotextile mat is necessary and that “[s]oils excavated within the top two feet of the
excavation (above the geotextile) may be set aside and used as
backfill in the same area.” R. Doc. 13-2 at 41.
33
Id. at 10 ¶ 5(c).
34
Id. at 10 ¶ 5(d).
35
Id. at 10 ¶ 5(e).
32
App. 47
property maintenance36 in bills to property owners.37
If the SWB does not do so, the City must take up this
task.38 In addition, the consent decree indicates that
the City must “designate an appropriate landfill facility for the disposal of soils excavated and removed from
beneath the geotextile mat” within 45 days of the entry
of the consent decree.39
The consent decree further provides that “[w]ithin
30 days of entry of this Decree, the [City] will designate
an official of the City as the Project Coordinator who
will be responsible for ensuring the City’s compliance
with the requirements of the Decree.”40 The Project Coordinator, “shall be the lead point of contact for the
EPA with the City,” and the Project Coordinator is “responsible for ensuring the City’s compliance with the
requirements of the Decree.”41
The consent decree also provides a number of
what it refers to as “institutional controls.”42 There, the
consent decree requires that the City “refrain from using the ASL . . . in any manner that would interfere
with or adversely affect the implementation, integrity,
36
The protocol for maintenance, like that Technical Abstract, provides procedures for excavating beneath the geotextile
soil mat, when necessary. R. Doc. 13-2 at 42-43.
37
Id. at 11 ¶ 5(f ).
38
Id. at 11 ¶ 5(f ).
39
Id. at 11 ¶ 5(g).
40
Id. at 11 ¶ 6.
41
Id.
42
Id. at 11-17.
App. 48
or protectiveness of the remedy.”43 The consent decree
also provides that the City must “execute and record
. . . an easement, running with the land, that grants a
right of access” to the United States, and also “grants
the right to enforce the land use restrictions” to the
United States and to the State and its representatives.44 The consent decree provides that the City
“shall, within 45 days of entry of this Consent Decree”
submit to the EPA a draft easement for review and approval.45
In the event that property is owned or controlled
by persons other than the City where land use restrictions are needed, the City must execute and record
a conveyance notice within 60 days of the entry of the
consent decree.46 The conveyance notice must run with
the land, to alert future transferees of “the response
action and waste in place, and to explain maintenance
and excavation guidelines for the property.”47
The consent decree also provides that, within 60
days, the City “shall submit to the EPA for approval a
proposed zoning ordinance and/or permit requirement”
that will require “owners or lessees of the land within
the Site . . . who seek to excavate soil to a depth of
greater than 18 inches . . . provide notice” to the City
43
Id. at 13 ¶ 7(b).
Id. at 13 ¶ 7(c).
45
Id. at 13 ¶ 8.
46
Id. at 14 ¶ 9.
47
Id.
44
App. 49
before doing so.48 The record indicates the City was
able to pass this ordinance.49 The consent decree further provides that “[i]f EPA determines that land/
water use restrictions in the form of state or local laws,
regulations, ordinances or other governmental controls
are needed . . . [the City] shall cooperate with EPA’s
efforts to secure such governmental controls.”50
The consent decree also provides a framework
through which the EPA monitors the City’s performance. Specifically, the consent decree provides that
the City “shall provide” the EPA “with access at all reasonable times to the Site . . . for the purpose of conducting,” among other things, “[m]onitoring, investigation,
removal, remedial or other activities at the Site,” as
well as “[a]ssessing [the City’s] compliance with [the
consent decree].”51 In addition, the consent decree indicates that the City “shall submit to EPA on an annual
basis . . . a written progress report that describes the
48
Id. at 15-16 ¶ 11(a).
R. Doc. 13-3 at 53. The ordinance provides that “[o]wners
or lessees of land within the Agriculture Street Landfill Site who
seek to excavate soil to a depth of greater than 18 inches shall
provide notice to the Department of safety and Permits and shall
first apply for an Excavation Permit certifying in such Excavation
Permit application their intent to excavate and to comply with the
U.S. Environmental Protection Agency’s Protocol on Post-Removal maintenance for Property Owners for the handling of contaminated soils and repair of the soil/geotextile mat.” Id.
50
R. Doc. 1-2 at 16-17 ¶ 12.
51
Id. at 12 ¶ 7(a)(1), (7).
49
App. 50
actions which have been taken to achieve compliance.”52
The consent decree provides that the City will
“provide the [EPA] . . . access” to allow the EPA to perform “5-year reviews.”53 In its motion to dismiss, the
City attached the EPA’s most recent five-year report
(“Report”), issued in May of 2018.54 The Court took judicial notice of the Report.55 The Report, comprising 31
pages of the EPA’s findings and 321 pages of attachments and appendices, found the City in compliance
with the consent decree.56 Specifically, the EPA noted
that the soil cap “is protected from erosion” and that
the “soil barrier that covers the entire site is in place
and expected to remain in place over time, restricting
exposure to the remaining subsurface contaminants
associated with the site.”57 The EPA found that the soil
cap remained “protective of human health and the environment.”58
The Report sets out the following “recommendations” with respect to ASL:
OU2: The constituents detected from the residential sub-slab surface do not appear to pose
a toxicity risk from dermal/ingestion, but
52
Id. at 17 ¶ 14.
Id. at 12 ¶ 7(a)(1).
54
R. Doc. 13-3.
55
R. Doc. 25 at 7.
56
R. Doc. 13-3 at 3.
57
Id.
58
Id.
53
App. 51
indoor air sampling is recommended at this
residential location to further aid in the evaluation of potential risk from vapor intrusion.
Soil sampling results at the other residential
properties at OU2[59] will be communicated to
the respective property owners.60
OU4: The City of New Orleans will be notified of the sampling results with detections of
the site COCS that exceed residential screening levels on their rights-of-way.
Neither of these recommendations indicates a deficiency in the City’s effort to preserve the soil cap, and
the sampling recommendations address actions the
EPA would take. At the end of the Report, the EPA indicates that another will follow in five years.61
The Court found that plaintiff ’s complaint, viewed
in light of the consent decree and the Report, was statutorily barred by 42 U.S.C. § 6972, which provides:
(B) No action may be commenced under [the
citizen suit provision] of this section if the
[EPA] Administrator, in order to restrain or
abate acts or conditions which may have contributed or are contributing to the activities
which may present the alleged endangerment
...
59
The consent decree divides the ASL into multiple “operable
units” or “OUs.” OU1 refers to “undeveloped property,” while OU2
includes “Residential Properties,” including Gordon Plaza. R. Doc.
13-2 at 4.
60
R. Doc. 13-3 at 11.
61
Id. at 31.
App. 52
(iv) has obtained a court order (including a
consent decree) . . . pursuant to which a responsible party is diligently conducting a removal action. . . .
42 U.S.C. § 6972(b)(2)(B)(iv) (emphasis added). The relevant statute defines “removal” as “the taking of such
. . . actions as may be necessary to prevent, minimize,
or mitigate damage to the public health or welfare or
to the environment, which may otherwise result from
a release or threat of release.” 42 U.S.C. § 9601 (23)
(cross-referenced by 42 U.S.C. §6972).62
In its complaint, plaintiff made the conclusory allegation that “[t]his lawsuit is not precluded by governmental action” because “no responsible party is
diligently conducting a removal action . . . pursuant to
a judicial or administrative order,”63 referencing Section 6972(b)(2)(B)(iv). But plaintiff also alleged that
contaminated soil lies underneath the soil cap at the
ASL.64 The consent decree indicates that the soil cap
will erode if not protected.65 The consent decree tasks
the City with preserving the soil cap on an ongoing
62
R. Doc. 25 at 10. The term “release” means “any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching dumping, or disposing into the environment. . . .” 42 U.S.C. § 9601 (22). There is no question that the
soil cap prevents a “release” of contaminated soil. R. Doc. 1 at 2
¶ 9 (referring to the installation of the soil cap as a “removal” action, which would require the soil cap to prevent “release” of hazardous substances).
63
R. Doc. 1 at 2 ¶ 10.
64
R. Doc. 1 at 7 ¶ 36.
65
R. Doc. 13-2 at 9 ¶ 5.
App. 53
basis through the foregoing obligations.66 In the 2018
Report, the EPA found the City’s actions “sufficient . . .
to protect the permeable soil cover that covers the contaminants that remain in the subsurface soils.”67 The
EPA noted that, as a result of the soil cap remaining in
place, the remedy at the ASL continued to be “protective of human health and the environment.”68
In its Order and Reasons dismissing plaintiff ’s
lawsuit, the Court found, based on the allegations of
the complaint, the consent decree, and the Report, that
the action was barred by Section 6972(b)(2)(B)(iv), and
the Court dismissed plaintiff ’s complaint with prejudice.69 Now, plaintiff moves the Court to alter or amend
its judgment under Federal Rule of Civil Procedure
59(e).70 The Court considers the motion below.
II.
LEGAL STANDARD
Reconsideration or alteration of an earlier order
“is an extraordinary remedy that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479
(5th Cir. 2004); see also Fields v. Pool Offshore, Inc., No.
97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998),
qff ’d, 182 F.3d 353 (5th Cir. 1999). In exercising its discretion, the Court must “strike the proper balance” between the need for finality and “the need to render just
66
Id.
R. Doc. 13-3 at 7.
68
R. Doc. 25 at 12.
69
R. Doc. 26.
70
R. Doc. 27.
67
App. 54
decisions on the basis of all the facts.” Edward H.
Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir.
1993). “ ‘Under Rule 59(e), amending a judgment is
appropriate (1) where there has been an intervening
change in the controlling law; (2) where the movant
presents newly discovered evidence that was previously unavailable; or (3) to correct a manifest error of
law or fact.’ ” Torres v. Livingston, 972 F.3d 660, 663
(5th Cir. 2020) (quoting Demahy v. Schwarz Pharma,
Inc., 702 F.3d 177, 182 (5th Cir. 2012) (per curiam)). “A
motion to alter or amend the judgment under Rule
59(e) . . . ‘cannot be used to raise arguments which
could, and should have been made before the judgment
issued.’ ” Rosenzweig v. Azurix Corp., 332 F.3d 854, 86364 (5th Cir. 2003) (quoting Simon v. United States, 891
F.2d 1154, 1159 (5th Cir. 1990)).
III. DISCUSSION
A. Plaintiff ’s Reply Brief Argument
First, plaintiff argues that the Court committed a
manifest error because it considered an argument
raised for the first time in the City’s Reply.71 “Generally
. . . district court’s in this circuit will [not] ‘review arguments raised for the first time in [a] reply brief.’ ”
RedHawk Holdings Corp. v. Schreiber Tr. of Schreiber
Living Tr. - DTD 2/8/95, 836 F. App’x 232, 235 (5th Cir.
2020) (quoting Peteet v. Dow Chem. Co., 868 F.2d 1428,
1437 (5th Cir. 1989)). Plaintiff asserts that the City
raised the following argument for the first time in its
71
R. Doc. 27-1.
App. 55
Reply brief: the City’s activities under the consent decree were “removal actions” that preclude plaintiff ’s
ability to bring a citizen suit under RCRA.72
In its motion to dismiss, the City wrote the following: “the EPA has been proceeding with a removal action . . . since 1994 and has entered a Consent Decree
with the City of New Orleans in 2008 which has extended additional remediation and with which the
City is in the compliance.”73 Plaintiff ’s position is that
this language “arguably”74 indicates that the EPA, and
not the City, was engaged in a removal action. As a result, plaintiff argues, the City did not explicitly assert
that it was engaged in removal actions until its Reply,
where it wrote: “[t]here is no abatement action for
Gordon Plaza to prosecute against the City as a ‘citizen
attorney general’ where the EPA and the City have
agreed to the abatement and removal work in the Consent Decree. . . .”75
Plaintiff ’s argument is without merit. In its motion to dismiss, the City argued that removal actions
at Gordon Plaza preclude plaintiff ’s ability to avail itself of the citizen suit provision in RCRA.76 Further, the
City also cited 42 U.S.C. § 6972(b)(2)(B)(iv) to assert
that plaintiff ’s citizen suit was statutorily barred.77 As
72
Id. at 5.
R. Doc. 13-1 at 8.
74
R. Doc. 27-1 at 6.
75
R. Doc. 20 at 3.
76
R. Doc. 13-1 at 2
77
Id. at 10.
73
App. 56
plaintiff admitted in its opposition, this statute bars its
citizen suit only if the City, and not the EPA, is engaged
in a removal or a remedial action.78 What is more,
plaintiff responded to the City’s argument in a broad
fashion in its opposition, writing that “[n]either [the]
EPA nor any other party . . . is actually engaging in a
removal action. . . .”79 The Court finds that the City
raised this argument in its original motion to dismiss
and that plaintiff had the opportunity to respond (and
in fact did respond) to it. Thus, plaintiff fails to demonstrate that the Court made a manifest error of law
when it considered the argument that the City was engaged in a removal action.
B. Plaintiff ’s Chevron Argument
Plaintiff next argues—for the first time on reconsideration—that the Court must defer to the EPA’s
interpretation of the word “removal” under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). At the outset, the Court notes that
“[a] motion to alter or amend the judgment under Rule
59(e) . . . ‘cannot be used to raise arguments which
could, and should have been made before the judgment issued.’ ” Rosenzweig, 332 F.3d at 863-64 (quoting
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.
1990)). Plaintiff ’s failure to raise its Chevron argument in its opposition precludes its success on reconsideration.
78
79
R. Doc. 16 at 1.
Id. at 2 (emphasis added).
App. 57
But even if the Court opens the door to plaintiff ’s
Chevron argument, it still fails. “[A] court’s analysis of
whether Chevron deference applies has a predicate requirement that the agency . . . issue[ ] its interpretation in a manner that gives it the force of law.” Dhuka
v. Holder, 716 F.3d 149, 155 (5th Cir. 2013); see also
United States v. Mead Corp., 533 U.S. 218, 226-27
(2001) (holding that, before deferring to an agency’s
interpretation of a statute under Chevron, courts must
ask whether “Congress delegated authority to the
agency generally to make rules carrying the force of
law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority”). The Fifth Circuit and other courts have come to
refer to this predicate requirement as “Chevron step
zero.” Ali v. Barr, 951 F.3d 275, 279 (5th Cir. 2020); see
also Martin v. Soc. Sec. Admin., Comm’r, 903 F.3d 1154,
1159 (11th Cir. 2018) (referring to this requirement as
“step zero”); United States v. Harmon, No. 19-395,
2020 WL 7668903, at *7 (D.D.C. Dec. 24, 2020) (same);
N. New Mexico Stockman’s Ass’n v. United States Fish
& Wildlife Serv., No. 18-1138, 2020 WL 6048149, at *85
(D.N.M. Oct. 13, 2020) (same).!!
Next, courts turn to Chevron’s familiar two-step
framework. “At step one, [courts] ask ‘whether Congress has directly spoken to the precise question at issue.’ ” Gulf Fishermens Ass’n v. Nat’l Marine Fisheries
Serv., 968 F.3d 454, 460 (5th Cir. 2020) (quoting Chevron, 467 U.S. at 842). “If the intent of Congress is clear,
that is the end of the matter.” Chevron, 467 U.S. 837 at
842. Only if the statute is “ ‘truly ambiguous,’ ” Gulf
App. 58
Fishermens Ass’n, 968 F.3d at 460 (quoting Kisor v.
Wilkie, 139 S. Ct. 2400, 2415 (2019)), should the Court
proceed to step two, and courts must “ ‘exhaust all the
‘traditional tools’ of construction,’ including ‘text,
structure, history, and purpose’ ” before concluding
that a statute is “truly ambiguous.” Gulf Fishermens
Ass’n, 968 F.3d at 460 (quoting Kisor, 139 S. Ct. at 2415
(2019). Step two then asks “whether the agency’s construction [of the statute] is ‘permissible.’ ” Id. (quoting
Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1014 (5th Cir.
2019)). As explained below, plaintiff fails to demonstrate manifest error of law, because plaintiff fails to
show that any of these requirements is satisfied in its
motion for reconsideration.
1. Chevron Step Zero
For Chevron deference to apply, the EPA must
have “issued its interpretation in a manner that gives
it the force of law.” Dhuka, 716 F.3d at 155. The text of
the purported “agency interpretation” at issue here
comes from a proposed rule, not a final rule. Specifically, plaintiff points to 67 Fed. Reg. 51,528. This page
in the Federal Register contains the EPA’s 2002 proposal to delete the Del Norte County Pesticide Storage
Area Superfund Site from its National Priorities List
(NPL). Id. The proposed rule contains the following
passage:
App. 59
CERCLA[80] section 101(25) defines response
as removal and remedial actions, and does not
include operation and maintenance activities.81
Plaintiff asserts that the above passage indicates that
“removal” actions, in the EPA’s view, do not include “operation and maintenance activities.”82 It is plaintiff ’s
position that the City’s actions in preserving the soil
cap at Gordon Plaza are maintenance activities, rather
than removal actions.
Putting aside that the above passage does not purport to define the word “removal,” but indicates that it
is parroting CERCLA’s definition of the word “response,” courts have held that proposed rules, not having gone through the notice-and-comment process,83 do
80
The Court notes that RCRA cross references the Comprehensive Environmental Response, Compensation and Liability
Act’s (CERCLA’s) definition of “removal.” See 42 U.S.C.
§ 6972(b)(2)(B)(ii) (cross-referencing CERCLA to define “removal
action”).
81
R. Doc. 27-1 at 6; 67 Fed. Reg. 51,528.
82
R. Doc. 27-1 at 4.
83
The U.S. Supreme Court summarizes the notice-andcomment process as follows:
First, the agency must issue a general notice of proposed rulemaking, ordinarily by publication in the
Federal Register. Second, if notice is required, the
agency must give interested persons an opportunity to
participate in the rule making through submission of
written data, views, or arguments. An agency must
consider and respond to significant comments received
during the period for public comment. Third, when the
agency promulgates the final rule, it must include in
App. 60
not carry the force of law. See United States v. Springer,
354 F.3d 772, 776 (8th Cir. 2004) (writing that “an
agency that exercises its discretion to propose a rule
has no duty to promulgate its proposal as a final rule”
and that “it is well-settled that ‘proposed regulations
. . . have no legal effect’ (quoting Sweet v. Sheahan, 235
F.3d 80, 87 (2d Cir. 2000)); see also Commodity Futures
Trading Comm’n v. Schor, 478 U.S. 833, 845 (1986) (“It
goes without saying that a proposed regulation does
not represent an agency’s considered interpretation of
its statute and that an agency is entitled to consider
alternative interpretations before settling on the view
it considers most sound.”). Indeed, the proposed rule
here provides that the “EPA’s Regional Office will accept and evaluate public comments before making a final decision to delete [the Site].” 67 Fed. Reg. 51,529.
As plaintiff points out, a final rule followed the
proposed rule, which deleted the Del Norte County
Pesticide Storage Area Superfund Site from the NPL.
See 67 Fed. Reg. 58,730. But the final rule does not contain the language of the proposed rule that plaintiff relies on. Instead, it consists of one sentence, which
provides, “Table 1 of appendix B to part 300 is amended
by removing the entry for ‘del Norte Pesticide Storage,
Crescent City, CA.’ ” Id.84 Plaintiff points to 40 C.F.R.
the rule’s text a concise general statement of its basis
and purpose.
Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015) (citations
and alterations omitted).
84
The final rule also contains an introductory summary that
muddles the language in the proposed rule that plaintiff relies on
App. 61
§ 300.425(e), which states that, sites can be removed
from the NPL only when “no further response [including removal] is appropriate.” Thus, plaintiff asserts,
the Del Norte Site could not have been deleted had a
removal action been ongoing, and, there, only operation and maintenance continued.
Plaintiff ’s position is that, in adopting a terse rule
to delete a single site from the NPL—a list that includes over 1,000 sites85—the EPA intended to interpret the statute that defines the word “removal” in a
manner that would carry sweeping implications for
both the statute, 42 U.S.C. § 9601 (23) (defining removal), and other EPA regulations, 40 C.F.R. § 300.5
(defining removal); 40 C.F.R. § 300.415 (characterizing
removal). There is no indication in the proposed rule or
final rule that the EPA intended to do anything other
than delete the Del Norte Site from the NPL. Cf. Kaufman v. Nielsen, 896 F.3d 475, 484-85 (D.C. Cir. 2018)
(finding no Chevron deference in the adjudication context for agency letter that was not “ ‘clearly intended to
to argue that removal actions cannot include operation and
maintenance. The summary to the final rule indicates that:
The EPA and the State of California, through the California Department of Toxic Substances Control, have
determined that all appropriate response actions under
CERCLA, other than Operation and Maintenance and
Five-Year reviews, have been completed.
See 67 Fed. Reg. 58,730. The phrase “other than” means that operation and maintenance activities can fall into the definition of
“response action,” but here have been found not to foreclose eliminating the site from the NPL.
85
See 40 C.F.R. § 300, App. B.
App. 62
have general applicability and the force of law’ when
the letter singularly focused on Kaufman.”); United
States v. Harmon, No. CR 19-395, 2020 WL 7668903, at
*8 (D.D.C. Dec. 24, 2020) (finding no Chevron deference
in the agency adjudication context “under step-zero”
where agency letter was “about the status of a single
company and does not purport to express broader principles about application” of the statute). Accordingly,
plaintiff fails to demonstrate that the EPA issued an
interpretation of the statute defining the word “removal” in “a manner that gives it the force of law.”
Dhuka, 716 F.3d at 155. This forecloses the applicability of Chevron deference. Id.
2. Chevron Step One
But even assuming Chevron step zero is satisfied,
plaintiff does not address Chevron’s remaining requirements. Under Chevron’s “step one,” the Court
asks “whether Congress has spoken directly to the precise question at issue.” Chevron, 467 U.S. at 842. If
Congress has spoken to the issue and “the intent of
Congress is clear, that is the end of the matter.” Chevron, 467 U.S. at 842. Only if Congress’s intent is “truly
ambiguous” may the Court proceed to step two of the
Chevron analysis. Gulf Fishermen Ass’n, 968 F.3d at
460 (quoting Kisor, 139 S. Ct. at 2415).
Here, Congress has spoken directly to the issue,
defining the term “removal” as follows:
The terms “remove” or “removal” mean[ ] the
cleanup or removal of released hazardous
App. 63
substances from the environment, such actions as may be necessary taken in the event
of the threat of release of hazardous substances into the environment, such actions as
may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed
material, or the taking of such other actions
as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.
The term includes, in addition, without being
limited to, security fencing or other measures
to limit access, provision of alternative water
supplies, temporary evacuation and housing
of threatened individuals not otherwise provided for, action taken under section 9604(b)
of this title, and any emergency assistance
which may be provided under the Disaster Relief and Emergency Assistance Act.
42 U.S.C. § 9601 (23) (cross-referenced by 42 U.S.C.
§ 6972(b)(2)(B)). Plaintiff does not establish, or even
argue, that the above statute is ambiguous. Instead,
plaintiff argues—for the first time in its Reply brief on
its motion to reconsider—that the CERCLA, as a general matter, is a notoriously imprecise statute.86 Plaintiff ’s general assertion that CERCLA is drafted with
imprecision is a far cry from what the Fifth Circuit requires to demonstrate the requisite ambiguity for a
particular statutory provision: “ ‘exhaust[ing] all the
86
R. Doc. 35 at 5.
App. 64
‘traditional tools’ of construction,’ including ‘text,
structure, history, and purpose.’ ” Gulf Fishermen
Ass’n, 968 F.3d at 460 (quoting Kisor, 139 S. Ct. at
2415). Not having demonstrated that Congress’s definition of “removal” is “truly ambiguous,” plaintiff fails
to show that this prerequisite for Chevron deference is
satisfied.
3. Chevron Step Two
Finally, plaintiff has not explained how Chevron
step-two is satisfied. Under Chevron, a court need defer to an agency’s interpretation of a statute only if the
agency’s construction is “permissible.” Sw. Elec. Power
Co., 920 F.3d at 1014. “A permissible construction is
one that ‘reasonabl[y] accommodate[es] . . . conflicting
policies that were committed to the agency’s care by
the statute.” Chevron, 467 U.S. at 845. “An agency interpretation can fail Chevron step two if ‘it is contrary
to clear congressional intent or frustrates the policy
Congress sought to implement.’ ” Sw. Elec. Power Co.,
920 F.3d at 1028 (quoting Garcia-Carias v. Holder, 697
F.3d 257, 271 (5th Cir. 2012)).
Plaintiff ’s proposed construction conflicts with the
statute’s plain language. In United States v. Lowe, 118
F.3d 399 (5th Cir. 1997), the Fifth Circuit examined
CERCLA’s definition of the term “removal.” The Lowe
court noted that CERCLA’s definition of “removal” included the word “monitoring.” Id. at 402. The Fifth Circuit observed that “[u]nder a plain language statutory
reading with an eye to context, the monitoring
App. 65
provided for under the ‘removal’ definition relates to
an evaluation of the extent of a release or threat of a
release of hazardous substances.” Id. at 403. The Fifth
Circuit held that “the monitoring referred to in [the
statute’s] definition of removal action . . . clearly include[s] government oversight.” Id. at 404. Thus,
“[g]overnment monitoring or oversight,” carried out to
“prevent or minimize the release of hazardous substances,” constituted a “removal” action. Id. at 403.
Here, the proposed rule indicates that the socalled “operation and maintenance” activities at the
Del Norte Site consisted of monitoring. The proposed
rule provides that “Del Norte County will continue to
provide monitoring at the Site” and that “Semiannual
groundwater monitoring will be ongoing at the Site” to
evaluate contamination levels. See 67 Fed. Reg. 51,530.
If the EPA’s proposed rule and final rule mean, as
plaintiff suggests, that operation and maintenance activities which consist of monitoring cannot be a removal action, this would run contrary to the statute’s
plain language as explained in Lowe, where the Fifth
Circuit observed that the statutory definition of the
word “removal” included “monitoring” activities. Lowe,
118 F.3d at 403. Thus, plaintiff fails to demonstrate
that the construction it seeks to impose on the proposed and final regulations is a permissible one.
4. The City’s Actions as “Removal” Actions
Further, to hold that the City’s actions under the
consent decree are not “removal” actions, whether
App. 66
under Chevron or some other doctrine of administrative deference, would run counter to other principles
articulated in the Lowe case. The Lowe court found
that “[t]he term removal is aimed at containing and
cleaning up hazardous substance releases.” Id. at 403
(5th Cir. 1997) (emphasis added). It further provided
that the term “removal” is “defined broadly” and that
it “includes those activities that are deemed necessary
to prevent hazardous releases from adversely affecting
the public health.” Id.
Under Lowe, plaintiff ’s allegations, the consent
decree, and Report indicate that the City’s actions are
removal actions. Plaintiff alleges that contaminated
soil lies under the soil cap at the ASL.87 The contaminated soil, plaintiff alleges, poses harm to its members.88 The consent decree indicates that the geotextile
mat and soil cap, placed on top of the contaminated
soil, will not preserve themselves. Rather, “[t]he soil
cap and geotextile mat covering the Site could be
breached or degraded by excavation within the Site or
by the failure to maintain the vegetative cover over the
soil cap.”89 It further provides that “the City shall implement . . . Work to maintain the [soil] cap.”90
This work, the consent decree indicates, is aimed
at protecting “the public health or welfare or the
87
R. Doc. 1 at 7 ¶ 36.
Id. at 1, 7, 8 ¶¶ 1, 36, 47.
89
R. Doc. 13-2 at 9.
90
Id.
88
App. 67
environment at the Site.”91 The work includes mowing
vegetation “at least twice per year” and “otherwise
maintain[ing] a stable vegetative cover.”92 And where
there are “private owners within the Site,” the consent
decree provides that “the City will use its available authorities to (a) require that landowners otherwise
maintain the grass vegetation on their properties, or
(b) undertake the necessary maintenance directly.”93
The consent decree also indicates that City must implement a number of controls. See discussion supra,
Part I, at 5-11. For example, the City agreed to refrain
from using the ASL in a manner that would disturb the
remedy,94 it passed an ordinance that requires property owners to notify the City in the event they intend
to excavate soil beneath the mat,95 and it agreed to “direct that all of its agencies and departments” incorporate the Technical Abstract as standard operating
procedure within the ASL.96 Under the consent decree,
the City must use its “available authorities” to ensure
that landowners “mow and otherwise maintain” the
91
Id.
Id. at 10 ¶ 5(b).
93
Id.
94
Id. at 13 ¶ 7(b).
95
R. Doc. 13-3 at 53. The ordinance provides that “[o]wners
or lessees of land within the Agriculture Street Landfill Site who
seek to excavate soil to a depth of greater than 18 inches shall
provide notice to the Department of safety and Permits and shall
first apply for an Excavation Permit. . . .” Id.
96
R. Doc. 13-2 at 10 ¶ 5(e).
92
App. 68
grass vegetation on their property, or it must “undertake the necessary maintenance directly.”97
And as contemplated in Lowe, the City is not free
from EPA oversight and monitoring—the consent decree indicates that the City “shall submit to EPA on an
annual basis . . . a written progress report that describes the actions which have been taken” to maintain
the soil cap.98 The consent decree also provides that the
City “shall . . . provide the United States and its representatives . . . with access at all reasonable times to the
Site” for monitoring purposes.99 Nothing in the complaint indicates that the City fails to comply with the
consent decree, or that the City is not diligently conducting a removal action in abiding by the consent
decree.
a. Plaintiff ’s Duration Argument
Plaintiff cherry picks one sentence from Lowe
where the court wrote “[a] ‘removal’ is generally understood to be a short-term response. . . .” Id. at 402 (emphases added) (citing Daigle v. Shell Oil Co., 972 F.2d
1527, 1533-34 (10th Cir. 1992)). This general understanding comes from cases in which courts juxtapose
the statutory definition of the word “removal” with the
97
Id. at 10 ¶ 5(b).
Id. at 17.
99
Id. at 12.
98
App. 69
word “remedial,”100 and deduce that because “remedial” actions are “permanent” in nature, removal actions are generally short-term. See Voluntary
Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1382
100
The statute defines the term “remedial action” as follows:
The terms “remedy” or “remedial action” mean[ ] those
actions consistent with permanent remedy taken instead of or in addition to removal actions in the event
of a release or threatened release of a hazardous substance into the environment, to prevent or minimize
the release of hazardous substances so that they do not
migrate to cause substantial danger to present or future public health or welfare or the environment. The
term includes, but is not limited to, such actions at the
location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay
cover, neutralization, cleanup of released hazardous
substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of
reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate
and runoff, onsite treatment or incineration, provision
of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the
public health and welfare and the environment. The
term includes the costs of permanent relocation of residents and businesses and community facilities where
the President determines that, alone or in combination
with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure
disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite
storage, treatment, destruction, or secure disposition of
hazardous substances and associated contaminated
materials.
42 U.S.C. § 9601 (24) (emphasis added).
App. 70
(5th Cir. 1989) (citing only the statutory definitions for
“removal” and “remedial” and deducing that removal
actions are “aimed at preventing environmental damage in the short-term”); see also Exxon Corp. v. Hunt,
475 U.S. 355, 360 (1986) (citing the statutory definitions for “removal” and “remedial,” and noting in passing removal actions are “short-term cleanup,” because
“remedial actions” provide for a “permanent remedy”);
In re Bell Petroleum Servs., 3 F.3d 889, 894 (5th Cir.
1993) (citing Reilly and noting that “[r]emoval actions
generally are immediate or interim responses” (emphasis added)).
But neither the Fifth Circuit nor the U.S. Supreme
Court has purported to hold, or even to address,
whether removal actions must be short-term actions to
qualify as such. And, at least two circuits courts, the
Ninth and the Sixth, have addressed that question and
have rejected the invitation to impose that requirement under the statute. See, e.g., United States v. W.R.
Grace & Co., 429 F.3d 1224, 1244 (9th Cir. 2005); Village of Milford v. K-H Holding Corporation, 390 F.3d
926 (6th Cir. 2004) (noting in passing that “[w]e
acknowledge the point that this court repeatedly has
observed that removal actions are frequently shortterm actions in response to an emergency,” but clarifying that it has “never held that such characteristics are
requirements for finding the costs of an action recoverable as removal costs”).
The Ninth Circuit’s analysis in Grace is instructive. The Grace court considered the environmental
conditions in Libby, Montana. In Grace, the EPA
App. 71
invoked its authority under CERCLA to clean up asbestos-related contamination from mining operations
that took place near Libby. Grace, 429 F.3d at 1226. The
clean-up actions involved the removal of “hazardous
soil from [a] screening plant, restrict[ing] access to contaminated roads, install[ing] a temporary cover on a
school’s ice skating rink, and excavat[ing] and backfill[ing] contaminated soil.” Id. at 1242. The issue in
that case—whether the EPA could recover the costs it
spent in performing the cleanup—turned “on whether
its response [was] properly characterized as a removal
action,” or whether its clean-up action was instead a
“remedial” action. Id. at 1232. Rejecting the argument
that removal actions must be short term, the Grace
court noted that the statute did not mandate that outcome.
The Grace court cited to an EPA guidance memorandum,101 where the EPA takes the position that “ ‘removal actions are most often of short duration, but
they certainly can be long-running responses, too,
thereby undercutting the probative value of duration
. . . in deciding whether an action is removal rather
than remedial in nature.’ ” Id. at 1244 (quoting Stephen Luftig, Director, Office of Emergency and Remedial Response, Use of Non-Time-Critical Authority in
Superfund Response Actions (Feb. 14, 2000), available
101
The EPA’s website suggests that this guidance document
has not been superseded by further guidance. See Non-Time
Critical Removal Actions, Environmental Protection Agency,
https://www.epa.gov/superfund/nontime-critical-removal-actions
(last visited Apr. 20, 2021) (listing the guidance document as part
of “a partial list of the EPA’s guidance for removals”).
App. 72
at https://semspub.epa.gov/work/HQ/129447.pdf (last
visited Apr. 19, 2021)). The Grace court, relying on the
EPA guidance, specifically noted that “ ‘[a]s a practical
matter, removal actions are often permanent solutions
such as can be the case in a typical soil or drum removal.’ ” Id. Finding the reasoning in the guidance
memorandum persuasive, the Grace court declined to
impose the requirement on the statute that removal
actions must be short-term actions. In addition, the
Grace court considered more practical considerations,
noting that it did not “want to tie the EPA’s hands or
compel it to adopt short-term remedies for fear that
any more permanent solutions automatically will be
dubbed ‘remedial actions’ and that it did not “make
economic or practical sense to impose a requirement
that removal actions must be only temporary in nature.” Id.
The Court finds the Grace court’s analysis of “removal” actions persuasive. Further, the plain language
of the statutory definition of the word “removal” does
not call for the Court to impose a requirement that all
removals must be short-term actions. Accordingly, the
Court finds that plaintiff fails to demonstrate manifest
error with respect to its argument that removals must
be short-term actions.102
102
Even if the Court assumes that the EPA’s activities in
installing the soil cap are distinct from the City’s efforts to
maintain the cap, plaintiff fails to recognize the concept of “postremoval site control,” which the EPA says can constitute a removal action:
App. 73
C. Plaintiff ’s Argument that It Is Entitled
to Develop a Factual Record on the
Question of “Diligence”
Next, plaintiff emphasizes a different passage in
§ 6972, arguing that it is entitled to develop a factual
record on the City’s “diligence”:
(B) No action may be commenced under [the
citizen suit provision] of this section if the
[EPA] Administrator . . .
(iv) has obtained a court order (including a
consent decree) . . . pursuant to which a responsible party is diligently conducting a removal action.
42 U.S.C. § 6972 (emphasis added). The Court finds
that plaintiff fails to demonstrate manifest error on
this ground as well.
“Congress intended for [citizen suits] to be utilized
only when the government failed to exercise its power
under RCRA.” River Village West LLC v. Peoples Gas
Light and Coke Co., 618 F. Supp. 2d 847, 853 (N.D. Ill.
2008); see also Kara Holding Corp. v. Getty Petroleum
Mktg., Inc., 67 F. Supp. 2d 302, 307 (S.D.N.Y. 1999)
(“[C]itizen suits are only intended to allow private
Post-removal site control means those activities that
are necessary to sustain the integrity of a Fundfinanced removal action following its conclusion. Postremoval site control may be a removal or remedial action under CERCLA. The term includes, without being
limited to, activities such as relighting gas flares, replacing filters, and collecting leachate.
40 C.F.R. 300.5 (emphasis added).
App. 74
attorneys general to fill the gaps in public enforcement
endeavors, and are oftentimes conditioned upon the
failure of federal and state officials to exercise their
own enforcement responsibilities.”). The citizen suit
provision is not available to private attorneys general
when the EPA and the State are engaged in addressing
the alleged endangerment at issue. Inc. Vill of Garden
City v. Gensco, Inc., No. 0777-5244, 2009 WL 3081724,
at *5 (E.D.N.Y. Sept. 23, 2009) (“The purpose of [RCRA]
is clear; it is intended to prevent district courts and environmental agencies from acting at cross-purposes.”
(collecting cases)); cf. R.E. Goodson Constr. Co. v. Int’l
Paper Co., No. 02-4184, 2005 WL 2614927 (D.S.C. Oct.
13, 2005) (“To ensure that citizen suits are not duplicative or disruptive of federal or state remediation efforts, [RCRA] § 7002(b)(2) bars citizen suits in certain
instances where the U.S. or a State has acted to address the alleged endangerment.”). This framework is
“intended to avert citizen suit interference with state
and federal enforcement activities.” Chico Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20, 28 (1st
Cir. 2011); see also Louisiana Env’t Action Network v.
City of Baton Rouge, 677 F.3d 737, 740 (5th Cir. 2012)
(writing that, in the context of the Clean Water Act
claim, “the citizens’ role in enforcing the Act is ‘interstitial’ and should not be ‘intrusive’ ” (quoting Gwaltney
of Smithfield, Ltd., v. Chesapeake Bay Found., Inc., 484
U.S. 49, 61 (1987)); Cox v. City of Dallas, Tex., 256 F.3d
281, 308 (5th Cir. 2001) (“We are persuaded that the
similarity of the citizen suit provisions of the CWA and
the RCRA requires like interpretation.”).
App. 75
Here, the consent decree indicates that the City
must take actions to preserve the integrity of the soil
cap at Gordon Plaza.103 It also provides that the City
“shall” provide a report to the EPA on an annual basis.104 The consent decree also indicates that the City
must “provide the United States and its representatives, including EPA and its contractors, with access at
all reasonable times to the Site” to allow the EPA to
engage in “[m]onitoring, investigation, removal, remedial or other activities at the Site, including 5-year reviews.”105 The EPA conducted its most recent review of
the ASL in 2018, and found the City in compliance with
the consent decree.106 The EPA also found the City’s actions in maintaining the soil cap protective of human
health and the environment.107 The 2018 Report also
indicates that the EPA intends to produce another report in five years’ time.108
The consent decree also provides a framework for
the EPA to penalize the City if it violates the consent
decree. The consent decree contains a section dedicated
to stipulated penalties.109 Under that section, “[s]tipulated penalties are due and payable within 30 days of
the date of the demand for payment of the penalties by
103
Id. at 9 ¶ 5.
Id. at 17 ¶ 14.
105
Id. at 12.
106
R. Doc. 13-3 at 3.
107
Id. at 3.
108
Id. at 31.
109
R. Doc. 13-2 at 24.
104
App. 76
the EPA” if the City is found in noncompliance.110 And
if the EPA and the City dispute whether the City acts
in violation, the consent decree provides a framework
for dispute resolution in which disagreements as to the
City’s compliance would ultimately be resolved by the
Court.111
Plaintiff ’s view is that none of the above factors
demonstrates whether the City is “diligently conducting” a removal action. Plaintiff points to passages in
the Report that, plaintiff asserts, indicate that the
City’s actions have not been diligent. For example,
plaintiff notes that the EPA found that the fencing on
the property adjacent to Gordon Plaza was in a state
of disrepair when it conducted the inspection leading
to the Report.112 But, as plaintiff admits elsewhere,113
the City was no longer required to maintain the fence
under the consent decree as of May of 2018, when the
2018 Report was issued. The Court also notes that
plaintiff does not allege in the complaint that any of
the harm it seeks relief from is due to the City’s failure
to maintain the security fencing in the property next
to Gordon Plaza.
Plaintiff also asserts that the EPA noted in its Report that vegetation in a part of the ASL was overgrown. As to that undeveloped property, the Report
indicates that the City reported quarterly grass
110
Id. at 24.
Id. at 20-23.
112
R. Doc. 27-1 at 11.
113
R. Doc. 27-1 at 11 n.3.
111
App. 77
cutting,114 which was more frequent than the consent
decree requires. The Decree states that the City must
“mow [the] vegetation at least twice per year.”115 Importantly, the EPA’s observations as to the security
fence and vegetation did not undermine its ultimate
determination that the City was in compliance with
the consent decree.
Plaintiff also argues that the question of diligence
is, by its nature, one that requires a more developed
factual record.116 That is, plaintiff argues that only further discovery could reveal whether the City is being
diligent in conducting a removal action. This argument
ignores the fact that plaintiff has been in litigation
with the City over the alleged conditions at the ASL
since 2018, the year the EPA issued the Report. Further, the plaintiff was aware of the consent decree and
the obligations it imposes on the City, which this Court
has found to be a removal action. See discussion infra,
Part III.E. The members of plaintiff association allegedly live on the ASL117 and are in a position to know or
to have find out whether the City carried out its obligations under the consent decree. The Court does not
see why plaintiff needs discovery to allege facts to indicate that the City’s conduct of a removal action under the consent decree has not been diligent. Further,
the Court notes that plaintiff ’s position has always
114
Id.
R. Doc. 13-2 at 10.
116
R. Doc. 27-1 at 10.
117
R. Doc. 1 at 3 ¶ 12.
115
App. 78
been that the City’s conduct under the consent decree
was not a removal or a remedial action. It only now
seeks to pivot to the question of whether any removal
action is being diligently conducted, a question which
it could have and should have addressed earlier.118
Under plaintiff ’s reading of the statute, no defendant could ever win a motion to dismiss by invoking
the statutory bar in 42 U.S.C. § 6972(b)(2)(B)(iv)—discovery would always be required to determine whether
a defendant “is diligently conducting” a removal or remedial action at the present moment. The Court finds
this contrary to the plain meaning of the statute, which
precludes a citizen suit from “commenc[ing]” in the
first instance. 42 U.S.C. § 6972; see also Grp. Against
Smog & Pollution, Inc. v. Shenango Inc., 810 F.3d 116,
129 (3d Cir. 2016) (taking judicial notice of two consent
decrees, finding that plaintiff ’s citizen suit under the
Clean Air Act under the “diligent prosecution” bar, and
affirming dismissal under Rule 12(b)(6)).
Further, allowing pretrial discovery on the question of “diligence,” when plaintiff does not even allege
that the City is in violation of the consent decree would
be unnecessarily disruptive of any ongoing cooperation
between the EPA and the City regarding their handling of the conditions at Gordon Plaza. Cf. Harlow v.
Fitzgerald, 457 U.S. 800, 817 (1982) (noting that pretrial discovery ought to be avoided in the qualified
118
Plaintiff filed its second complaint in 2020. See id. This
complaint did not indicate any changes at the ASL since 2018,
when it filed its first complaint.
App. 79
immunity context because pretrial discovery can be
“peculiarly disruptive of effective government”); Wicks
v. Mississippi State Emp. Servs., 41 F.3d 991, 995 n.16
(5th Cir. 1995) (noting that one of the purposes of qualified immunity is to avoid imposing the burdens of discovery on the defendant unnecessarily).
The Third Circuit’s reasoning in Group Against
Smog & Pollution, Inc. v. Shenango Inc., 810 F.3d 116
(3d Cir 2016), is instructive. There, the court considered a plaintiff ’s citizen suit against a defendant’s operations at the Neville Island Coke Plant. Id. at 120.
The plaintiff sought to establish that the defendant’s
plant violated binding requirements under the Clean
Air Act, 42 U.S.C. § 7604(a)(1). The Third Circuit consulted the so-called “diligent prosecution” bar to citizen
suits under the Act. That provision provides:
No action may be commenced—
if the Administrator or State has commenced
and is diligently prosecuting a civil action in a
court of the United States or a State to require
compliance with the standard, limitation, or
order, but in any such action in a court of the
United States any person may intervene as a
matter of right.
42 U.S.C. § 7604 (emphasis added). The Third Circuit
noted that a 2012 consent decree and a 2014 consent
order that dealt with the violations at issue. Shenango,
810 F.3d at 121-22. The Court took judicial notice of
both the consent decree and the consent order, reviewed the terms of those documents, and ruled that
App. 80
plaintiff ’s citizen suit was barred, affirming the district court under Federal Rule of Civil Procedure
12(b)(6). Id. at 131-32. The court noted that “[b]oth the
2012 Consent Decree and 2014 Consent Order and
Agreement utilize ongoing monitoring and recording of
[defendant’s] emissions, as well as allow . . . the right
to inspect [defendant’s] facilities or record emissions.”
Id. at 130. Because the consent decree and consent order remained in force at the time plaintiff filed its citizen suit, the court found that plaintiff ’s citizen suit
was barred. Shenango’s analysis of “diligent prosecution” is analogous to the question of whether the City
is “diligently conducting” a removal action here, insofar as Shenango indicates that the question of “diligence” need not be reserved for after the motion-todismiss stage.
Plaintiff relies on Tanglewood E. Homeowners v.
Charles-Thomas, Inc., 849 F.2d 1568, 1574 (5th Cir.
1988), for its argument that diligence is a question of
fact. In Tanglewood, plaintiff ’s alleged that highlytoxic waste accumulated on their property in the years
before it became a residential development. Id. at 1571.
Under RCRA, the appellant argued that plaintiff ’s citizen-suit was barred under a different subsection of
the statute that bars citizen suits when the EPA is
“‘diligently proceeding with a remedial action.’ Id. at
1573 (quoting 42 U.S.C. § 6972(b)(2)(B)(iii)). Under
that provision, the Tanglewood court found that the
question of diligence was “a fact issue and that the
complainants cannot be expected to prove, at the
App. 81
pleading stage, the EPA’s methodology or diligence in
the cleanup efforts.” Id.
But Tanglewood is distinguishable. That case did
not involve a consent decree that purported to bind the
responsible party’s conduct. Indeed, the subsection of
§ 6972 at issue in Tanglewood does not contemplate
the possibility that the EPA and the State might use a
consent decree to enforce RCRA. Relatedly, there was
no mention in Tanglewood of ongoing reporting requirements, or evidence of consistent EPA examinations of the site at issue.
And after Tanglewood, the Fifth Circuit decided
Louisiana Env’t Action Network v. City of Baton Rouge,
677 F.3d 737 (5th Cir. 2012). In that case, the court
considered a provision in The Clean Water Act, 33
U.S.C. § 1251, et seq., which bars citizen suits when the
“EPA or State ‘has commenced and is diligently prosecution a civil or criminal action . . . to require compliance with the standard.’ Id. at 740 (quoting 33 U.S.C.
§ 1365(b)(1)(B)). The Louisiana Environmental Action
Network court held that this so-called “diligent prosecution” bar was not jurisdictional, but it declined to
answer whether the question of “diligent prosecution”
was “a fact-intensive question that can only be answered after the proper development of a record.” Id.
at 750. The Fifth Circuit noted that it took “no position”
on that argument. Id. In other words, Louisiana Environmental Action Network indicated that it is an open
question whether the issue of “diligence” can be resolved based on the complaint and the enforcement
record before the Court.
App. 82
Given the circumstances of this case, where the
consent decree requires the City to take actions to preserve the soil cap, which are necessary to protect the
ASL from subsurface contamination; where the 2018
EPA Report indicates that the City is in compliance
with its obligations, and that the ASL remains protected; and where plaintiff makes no argument or allegation that the City is in violation of the consent
decree, the Court finds the record sufficient to hold
that plaintiff ’s lawsuit is barred by 42 U.S.C.
§ 6972(b)(2)(B)(iv).
D. Plaintiff ’s Argument on Judicial Notice
Plaintiff argues that it is entitled to a hearing on
the Court’s taking judicial notice of the consent decree
and the Report.119 “Pursuant to Federal Rule of Evidence 201, a court is entitled to take judicial notice of
adjudicative facts from reliable sources ‘whose accuracy cannot reasonably be questioned.” Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413,
422 (5th Cir. 2013). !Plaintiff points to Federal Rule of
Evidence 201(e), which provides:
On timely request, a party is entitled to be
heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If
the court takes judicial notice before notifying
a party, the party, on request, is still entitled
to be heard.
119
R. Doc. 27-1 at 2.
App. 83
Plaintiff cited, quoted, and relied on both the consent
decree and the Report extensively in its opposition to
the City’s motion,120 never raising a concern with
whether the Court should consider them. The Court
finds that plaintiff ’s request to be heard on the issue
of judicial notice is not timely and that plaintiff waived
its right to object on this issue by availing itself of the
contents of these documents in its opposition.
E. Previous Litigation
Plaintiff previously litigated a RCRA claim
against the City involving the conditions at Gordon
Plaza, and it failed to notify the Court of those proceedings. When the City moved to dismiss plaintiff ’s complaint, it noted that plaintiff previously filed a RCRA
citizen suit, and that case was captioned as Residents
of Gordon Plaza, Inc. vs. Mitchell Landrieu, No. 184226 (2018).121
There, the plaintiff sued the City before Judge
Ivan L. R. Lemelle in the Eastern District of Louisiana,122 seeking relocation of its members from Gordon
120
See, e.g., R. Doc. 16 at 2, 3, 6, 8, 13, 14, 16.
R. Doc. 13-1 at 8.
122
The Court takes judicial notice of the public records filed
in plaintiff’s litigation. See Joseph v. Bach & Wasserman, L.L.C.,
487 F. App’x 173, 178 (5th Cir. 2012) (“[T]he court may take judicial notice of matters of public record.”); see also Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (“[I]t is clearly proper
in deciding a 12(b)(6) motion to take judicial notice of matters of
public record.”).
121
App. 84
Plaza.123 The court dismissed plaintiff ’s action without
prejudice, finding that plaintiff had not established the
requirements for associational standing.124 Specifically, the court found that the relief plaintiff sought—
relocation of its members—would require “individual
participation” of members of the association, which
precludes associational standing. See Nat’l Rifle Ass’n
of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, &
Explosives, 700 F.3d 185, 191 (5th Cir. 2012). After the
court reached its holding, it offered a view in dicta as
to whether the consent decree (the same one at issue
in this case) barred plaintiff ’s citizen suit under 42
U.S.C. § 6972(b)(2)(B)(iv).125
123
R. Doc. 13-1 at 8-9. See R. Doc. 2 (Case No. 18-4226).
R. Doc. 74 (Case No. 18-4226).
125
R. Doc. 1 at 13 ¶ 84. The court’s discussion of the statutory
bar is not the law of this case. First, the court’s discussion of the
statutory bar takes place in dicta. See discussion supra, at 4-5
n.22; In re City of Philadelphia Litig., 158 F.3d 711, 718 (3d Cir.
1998) (noting that “[t]he law of the case doctrine . . . does not apply to dicta”). Second, the case before Judge Lemelle was a separate civil action, following a different complaint, under which
plaintiff sought different relief. Med. Ctr. Pharmacy v. Holder,
634 F.3d 830, 834 (5th Cir. 2011) (“The law-of-the-case doctrine
‘posits that when a court decides upon a rule of law, that decision
should continue to govern the same issue in subsequent stages in
the same case.’ ” (emphasis added) (quoting United States v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999))); see also 18B Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 4478
(2d ed. 2021) (“Law-of-the-case rules . . . do not apply between
separate actions, even if they are related.”). !!
124
App. 85
Plaintiff filed for reconsideration in the earlier
suit and sought to amend its complaint.126 The court
denied reconsideration, and it also denied plaintiff ’s
motion to amend its complaint.127 In denying plaintiff ’s
motion to amend, the court found, among other things,
that plaintiff acted with “bad faith and dilatory motive” because the plaintiff admitted it knew of other relief it could seek when it filed the complaint, but it
made the conscious decision not to seek it because it
“wished to emphasize [the relocation] remedy.”128 The
court observed that plaintiff ’s “theories of recovery
[were] intentionally advanced in a piecemeal [and] disjointed fashion,”129 and it denied plaintiff leave to
amend.
Two months after the court denied reconsideration, plaintiff filed the complaint before this Court. Under the local rules, plaintiff was required to inform the
Court of those earlier proceedings. It did not do so.
Eastern District of Louisiana Local Rule 3.1. provides:
When in a civil matter, commenced in or removed to the court, involves subject matter
that comprises all or a material part of the
subject matter or operative facts of another
action, whether civil or criminal, then or previously pending in any court or administrative agency, counsel must file a list and
126
R. Doc. 78 (Case No. 18-4226); R. Doc. 80 (Case No. 18-
4226).
127
R. Doc. 92 (Case No. 18-4226).
R. Doc. 92 at 11 (Case No. 18-4226).
129
Id. at 13 (Case No. 18-4226).
128
App. 86
description of all such actions then known to
counsel and a brief summary of the relationship between the cases. . . .
Plaintiff submitted a Civil Cover Sheet with the clerk’s
office.130 The Civil Cover Sheet asked plaintiff to identify “Related Case(s) If Any,” when it filed its complaint. For whatever reason, plaintiff left that field
blank.131
In addition to failing to notify the Court of this
previous litigation, plaintiff also elected to not mention
the consent decree in its complaint, notwithstanding
that it had notice from the earlier litigation that the
consent decree was material to whether its claim was
statutorily barred. The Court considers plaintiff ’s motion to amend against this background.
F. Plaintiff ’s Argument for Dismissal Without Prejudice and Leave to Amend
Plaintiff asserts that the Court should modify its
judgment and dismiss the case without prejudice and
grant plaintiff leave to file an amended complaint.132
In the Fifth Circuit, when a district court dismisses the
complaint, but does not terminate the action altogether, the plaintiff may amend under Federal Rule of
Civil Procedure 15 with permission from the court.
130
R. Doc. 1-8.
After consultation with the judge who handled the other
case, the Court finds that transfer to him at this juncture would
not promote judicial economy.
132
R. Doc. 27-1 at 12.
131
App. 87
United States ex rel. Hebert v. Dizney, 295 F. App’x 717,
724 (5th Cir. 2008); Rosenzweig, 332 F.3d at 865. “When
a district court dismisses an action and enters a final
judgment, however, a plaintiff may request leave to
amend only by either appealing the judgment, or seeking to alter or reopen the judgment under Rule 59 or
60.” Herbert, 295 F. App’x at 724; Rosenzweig, 332 F.3d
at 865. Here, the Court dismissed plaintiff ’s complaint
with prejudice.133 Because plaintiff timely filed a motion to reconsider,134 the Court will consider plaintiff ’s
request for leave to amend.
In the context of a motion for reconsideration, the
Fifth Circuit has held plaintiff ’s motion for leave to
amend “should be governed by the same considerations
controlling the exercise of discretion under rule 15(a).”
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 n.1
(5th Cir. 1981); see also Rosenzweig, 332 F.3d at 864
(providing that a motion to amend on a Rule 59(e) disposition should be governed by the standard set out in
Rule 15(a)).
While courts “should freely give leave when justice
so requires,” Fed. R. Civ. P. 15(a)(2), leave to amend is
not automatic or granted in every case. See Davis v.
United States, 961 F.2d 53, 57 (5th Cir. 1991). “[T]his
Circuit examines five considerations to determine
whether to grant a party leave to amend a complaint:
(1) undue delay, (2) bad faith or dilatory motive,
(3) repeated failure to cure deficiencies by previous
133
134
R. Doc. 26.
R. Doc. 27.
App. 88
amendments, (4) undue prejudice to the opposing
party, and (5) futility of the amendment.” Smith v.
EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). “Absent
any of these factors, the leave sought should be ‘freely
given.’ ” Id. (quoting Forman v. Davis, 371 U.S. 178, 182
(1962)).
Plaintiff does not supply the Court with a copy of
an amended complaint. “The failure to attach a copy of
the proposed complaint is not, on its own, fatal to a motion to amend.” Pena v. City of Rio Grande City, 879
F.3d 613, 618 (5th Cir. 2018). Still, it is incumbent upon
the plaintiff to ‘set forth with particularity the grounds
for the amendment and the relief sought.’ ” United
States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 331
(5th Cir. 2003) (quoting United States, ex rel. Willard v.
Humana Health Plan of Tex. Inc., 336 F.3d 375. 386-87
(5th Cir. 2003)). Plaintiff asserts that it intends to include additional factual allegations that would evince
a lack of diligence on the part of the City,135 but it gives
no indication of what those facts are. After considering
the relevant factors, the Court denies leave to amend.
1. Undue Delay
The Court finds that plaintiff has acted with undue delay. “Although Rule 15(a) does not impose a time
limit ‘for permissive amendment, at some point, time
delay on the part of a plaintiff can be procedurally fatal.’ ” Smith, 393 F.3d at 595 (quoting Whitaker v. City
of Houston, 963 F.2d 831, 836 (5th Cir. 1992)). “In such
135
R. Doc. 27-1 at 13.
App. 89
a situation, the plaintiff bears the burden of showing
the delay to be ‘due to oversight, inadvertence, or excusable neglect.’ ” Id. (quoting Whitaker, 963 F.2d at
836). Plaintiff has provided no reasonable explanation
for why it could not include more detailed allegations
regarding the City’s alleged lack of diligence in its complaint. By way of the earlier litigation, plaintiff had notice that the consent decree, and the statutory bar set
out in 42 U.S.C. § 6972(b)(2)(B)(iv), were material to
whether its action could proceed. Further, plaintiff
could have responded to the City’s motion to dismiss
with a request to amend the complaint, but it failed to
do so. And in the instant motion, plaintiff does not even
argue that its failure to include more detailed allegations was the product of “oversight, inadvertence, or
excusable neglect.” Accordingly, plaintiff fails to meet
its burden to establish these factors, and the Court
finds that this factor weighs against granting plaintiff
leave to amend.
2. Bad Faith or Dilatory Motive
Bad faith in this context is a term of art, and it
exists when a plaintiff is aware of facts and “fail[s] to
include them in the complaint . . . giv[ing] rise to the
inference that the plaintiff was engaging in tactical
maneuvers to force the court to consider various theories.” Dussouy, 660 F.2d at 599; see also Wimm v. Jack
Eckerd Corp., 3 F.3d 137, 140 (5th Cir. 1993) (affirming
denial of leave to amend because of bad faith, because
plaintiff “knew of the facts underlying their . . . claim
before this action commenced”); Cole v. Ridge, No. 2004
App. 90
WL 2237028, at *3 (N.D. Tex. Oct. 4, 2004) (“Bad faith
may bar amendment if the movant was aware of certain facts but failed to plead them in order to gain a
tactical advantage.”).
Plaintiff failed to notify the Court that it had previously litigated a claim involving the environmental
conditions at Gordon Plaza. In that case, the City argued that the consent decree barred plaintiff ’s citizen
suit. Still, plaintiff did not include a single factual allegation in its complaint before this Court relevant to
the consent decree. Now that the Court has dismissed
plaintiff ’s complaint because it found that the City’s
compliance with the consent decree constituted diligent pursuit of a removal action, plaintiff argues that
it is prepared to offer more detailed allegations as to
why the City’s conduct under the consent decree does
not bar its citizen suit. To the extent that plaintiff was
keeping these allegations in reserve, it acted with bad
faith and dilatory motive.
3. Repeated Failure to Cure Deficiencies
The Court also finds that plaintiff has failed to
cure deficiencies. Although the judgment in plaintiff ’s
earlier suit was not a decision on the merits, this is
plaintiff ’s second opportunity to provide the Court
with a sufficient pleading. It has failed to do so.
App. 91
4. Undue Prejudice to the Defendant
The Court finds that the City would suffer undue
prejudice were the Court to allow plaintiff leave to
amend. Plaintiff has been litigating against the City
regarding the environmental conditions at Gordon
Plaza for three years.136 The Court will not subject the
City to the prejudice associated with prolonged litigation and costs on the chance that plaintiff will file an
adequate pleading on its third attempt.
IV. CONCLUSION
For the foregoing reasons, plaintiff ’s motion is DENIED.
New Orleans, Louisiana, this 30th day of April,
2021.
/s/ Sarah S. Vance
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
136
R. Doc. 2 (Case No. 18-4226).
App. 92
United States Court of Appeals
for the Fifth Circuit
---------------------------------------------------------
No. 21-30294
---------------------------------------------------------
RESIDENTS OF GORDON PLAZA, INCORPORATED,
Plaintiff—Appellant,
versus
LATOYA CANTRELL, in her Official Capacity as Mayor
of the City of New Orleans; CITY OF NEW ORLEANS,
Defendants—Appellees.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-1461
--------------------------------------------------------------------------------------------------------------------------------------------------------
ON PETITION FOR REHEARING EN BANC
(Filed Mar. 2, 2022)
Before OWEN, Chief Judge, CLEMENT, and ENGELHARDT,
Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc as a
petition for panel rehearing (5TH CIR. R. 35 I.O.P.), the
petition for panel rehearing is DENIED. Because no
member of the panel or judge in regular active service
requested that the court be polled on rehearing en banc
App. 93
(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for
rehearing en banc is DENIED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.