ACORN v. Edwards

• Decision Date: 22 April 1996
• Docket Number: No. 94-30714,94-30714
• Citation: 81 F.3d 1387
• Parties: , 64 USLW 2684, 108 Ed. Law Rep. 1080, 26 Envtl. L. Rep. 21,257 ACORN, Association of Community Organizations for Reform Now; Illene Sippio, Individually and as tutrix of her minor daughters, Terri Sippio and Torey Sippio; Frank Crosby, Individually and as tutor of his minor son, Devin Crosby, Plaintiffs-Appellees, v. Edwin EDWARDS, In his official capacity as Governor of Louisiana; J. Christopher Pilley, In his official capacity as Secretary of the Louisiana Department of Health and Hospitals; T. Jay Ray, In his official capacity as Administrator of the Safe Drinking Water Program, Louisiana Department of Health and Hospitals, Office of Public Health, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1387

81 F.3d 1387

42 ERC 1942, 64 USLW 2684, 108 Ed.

Law Rep. 1080,

26 Envtl. L. Rep. 21,257

ACORN, Association of Community Organizations for Reform Now; Illene Sippio, Individually and as tutrix of her minor daughters, Terri Sippio and Torey Sippio; Frank Crosby Individually and as tutor of his minor son, Devin Crosby Plaintiffs-Appellees, v. Edwin EDWARDS, In his official capacity as Governor of Louisiana; J. Christopher Pilley, In his official capacity as Secretary of the Louisiana Department of Health and Hospitals; T. Jay Ray, In his official capacity as Administrator of the Safe Drinking Water Program, Louisiana Department of Health and Hospitals, Office of Public Health Defendants-Appellants.

No. 94-30714.

United States Court of Appeals Fifth Circuit.

April 22, 1996.

Nathalie M. Walker, New Orleans, LA, for plaintiffs-appellees.

J. Carol Williams, Washington, DC, Jeffrey Paul Kehne, Washington, DC, for U.S.

Emile C. Rolfs, III, William Frank Ridlon, II, Breazeale, Sachse & Wilson, Baton Rouge, LA, for defendants-appellants.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, DUHE and PARKER, Circuit Judges.

DUHE, Circuit Judge:

A public interest group and two concerned parents sued Louisiana state executive officials, in their official capacities, to force the State into compliance with the Lead Contamination Control Act of 1988, Pub.L. No. 100-572, 102 Stat. 2884 (codified in relevant part at 42 U.S.C. §§ 300j-21 to 300j-26). After the suit was dismissed as moot, the Plaintiffs successfully moved for attorney's fees. The Defendant state officials appealed the award. Because we agree that the Plaintiffs failed to allege a violation of a lawful requirement of the Act, and thus no basis for an award of attorney's fees exists, we reverse and render judgment dismissing the claim for attorney's fees.

I. The Lead Contamination Control Act of 1988

In response to concerns that the nation's children were being exposed to unsafe levels of lead in their drinking water, Congress passed the Lead Contamination Control Act of 1988 ("LCCA"). H.R.Rep. No. 1041, 100th Cong., 2d Sess. at 6-8 (1988), reprinted in 1988 U.S.C.C.A.N. 3793, 3793-95. The LCCA amended the Safe Drinking Water Act ("SDWA") to target what Congress perceived was a significant source of such lead contamination--electric drinking water coolers containing lead solder or lead-lined water tanks located in schools. Id. at 7, reprinted in 1988 U.S.C.C.A.N. at 3794-95. Under the LCCA, the Administrator of the Environmental Protection Agency and the States share responsibility for remedying this problem.

The Administrator is required to identify each brand and model of drinking water cooler which is not lead free, including each brand and model that has a lead-lined tank. 42 U.S.C. § 300j-23(a). A list of the identified drinking water coolers must then be published, subject to the Administrator's continuing duty to update the list as new information becomes available. ¹ Id. The Administrator is also required to distribute to the States the list of non-lead free drinking water coolers, as well as to publish a guidance document and testing protocol aimed at helping local educational agencies, schools, and day care centers determine the source and degree of lead contamination in their drinking water systems and remedy such contamination. 42 U.S.C. § 300j-24(a)-(b).

The States' responsibilities under the LCCA stem from only two provisions. Section 300j-24(c) provides that "[e]ach State shall provide for the dissemination to local educational agencies, private nonprofit elementary or secondary schools and to day care centers of the guidance document and testing protocol published [by the Administrator], together with the list of drinking water coolers published under section 300j-23(a) of this title." 42 U.S.C. § 300j-24(c). Further, § 300j-24(d) requires States to establish remedial action programs for the removal of lead contaminants from school drinking water systems. More particularly, this section states:

(d) Remedial action program

(1) Testing and removing lead contamination

Within 9 months after October 31, 1988, each State shall establish a program, consistent with this section, to assist local educational agencies in testing for, and remedying, lead contamination in drinking water from coolers and from other sources of lead contamination at schools under the jurisdiction of such agencies.

* * * * * *

(3) Coolers

In the case of drinking water coolers, such program shall include measures for the reduction or elimination of lead contamination from those water coolers which are located in schools. Such measures shall be adequate to ensure that within 15 months after October 31, 1988, all such water coolers in schools under the jurisdiction of such agencies are repaired, replaced, permanently removed, or rendered inoperable unless the cooler is tested and found (within the limits of testing accuracy) not to contribute lead to drinking water.

Section 300j-25 provides that the Administrator shall make grants to the States to assist them in complying with these mandates. ²

Finally, § 300j-8 of the SDWA provides a mechanism by which "any person may commence a civil action on his own behalf" to force the Administrator and the States to carry out the mandates of the LCCA.

II. Procedural Background

Pursuant to the citizen's suit provision of the SDWA (42 U.S.C. § 300j-8), the Association of Community Organizations for Reform Now ("ACORN") ³ sent a "Notice of Intent to File Suit" letter to Louisiana's Governor; its Secretary of the Department of Health and Hospitals; and the Administrator of the Safe Drinking Water Program of the Louisiana Department of Health and Hospitals. Therein, ACORN alleged violations of § 300j-24(c) (failure to disseminate the EPA list of non-lead free drinking water coolers) and § 300j-24(d) ⁴ (failure to establish a remedial action program). After receiving this letter, the Department of Health and Hospitals distributed to local educational agencies, schools, and day care centers an EPA Fact Sheet that listed non-lead free drinking water coolers identified as of February 1990.

Thereafter, ACORN ⁵ sued these officials in their official capacities (hereinafter "Defendants"), alleging only that Defendants had failed to establish a remedial action program as required by § 300j-24(d), and seeking declaratory and injunctive relief. After concluding that distribution of the EPA Fact Sheet instead of the final list of non-lead free drinking water coolers published by the EPA in the January 18, 1990 Federal Register did not satisfy § 300j-24(c), ACORN amended its complaint to add a cause of action for violation of this provision of the LCCA.

Defendants moved for dismissal for lack of subject matter jurisdiction or, alternatively, summary judgment. Defendants claimed that ACORN did not give the notice required under § 300j-8(b)(1) and that ACORN, the organization, lacked standing. The district court denied Defendants' motion. ⁶ ACORN v. Edwards, 842 F.Supp. 227 (E.D.La.1993). Thereafter, Defendants answered ACORN's complaint reasserting inadequate notice and lack of subject matter jurisdiction, and alleging that ACORN's claims were barred by the Eleventh Amendment, that ACORN failed to join certain indispensable parties--i.e., the EPA and local educational agencies, and that the provisions of the LCCA at issue are unconstitutional. Defendants filed a Motion to Certify Constitutional Questions to the Attorney General of the United States.

ACORN moved for summary judgment on the issue that Defendants were in violation of § 300j-24(d)(3). Defendants then filed their own summary judgment motion seeking dismissal of all claims, or alternatively the claims of the individual plaintiffs and the § 300j-24(c) claim. The district court denied ACORN's summary judgment motion and Defendants' motion to certify the constitutional questions. Later, however, the district court, after a telephone status conference with all parties, granted Defendants' motion for summary judgment and dismissed all claims as moot. ⁷ The district court's ruling specifically reserved the parties' rights to litigate whether attorney's fees may be due.

ACORN then moved for an award of attorney's fees and other expenses pursuant to § 300j-8(d). ⁸ Defendants opposed this motion on numerous grounds; most notably that the provisions of the LCCA sought to be enforced are unconstitutional. The district court reaffirmed that all claims in this suit were dismissed as moot and ordered Defendants to pay attorney's fees and expenses of $41,181.25 to ACORN for payment by it in the same amount to its attorneys. Defendants timely appealed.

III. Discussion

On appeal, Defendants raise numerous alleged errors attacking the district court's award of attorney's fees. After wading through this morass, we elect to resolve Defendants' claims as follows.

A. 42 U.S.C. § 300j-24(c)

Defendants challenge both § 300j-24(c) and § 300j-24(d) as violative of the United States Constitution--in particular, the Tenth Amendment. We are mindful, however, that "[federal courts] have [a] duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration." County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). See also Ysleta Del Sur Pueblo v. Texas, 36 F.3d 1325, 1332 (5th Cir.1994), certs. denied, --- U.S. ----, ----, 115 S.Ct. 1358, 1358, 131 L.Ed.2d 215 (1995); Louisiana v. Public Investors, Inc., 35 F.3d 216, 219-20 (5th Cir.1994).

ACORN's original complaint alleged only that the State was in violation of § 300j-24(d). ACORN explained to the district court that, at the time suit was filed, it was not sure whether Defendants' earlier dissemination of the EPA Fact Sheet, in lieu of the list published by the...