Cudjoe ex rel. Cudjoe v. Dept. of Veterans Affairs.

• Citation: 426 F.3d 241
• Decision Date: 13 October 2005
• Docket Number: No. 04-3003.,04-3003.
• Parties: Derryen D. CUDJOE, A Minor Child By and Through his Natural Guardians and Next Friends, Barbarette and Derry CUDJOE, Appellants v. DEPARTMENT OF VETERANS AFFAIRS; Anthony J. Principi, Secretary of Veterans Affairs; Roger W. Robert.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

426 F.3d 241

Derryen D. CUDJOE, A Minor Child By and Through his Natural Guardians and Next Friends, Barbarette and Derry CUDJOE, Appellants v. DEPARTMENT OF VETERANS AFFAIRS; Anthony J. Principi, Secretary of Veterans Affairs; Roger W. Robert.

No. 04-3003.

United States Court of Appeals, Third Circuit.

Argued May 24, 2005.

Filed October 13, 2005.

Sharon A. Ziegler (Argued), Kingsport, Tennessee, for Appellants.

Susan D. Bricklin (Argued), Office of United States Attorney, Philadelphia, Pennsylvania, for Appellees, Department of Veterans Affairs and Anthony J. Principi, Secretary of Veterans Affairs.

Edward J. Schwabenland (Argued), Schwabenland & Ryan, P.C., Wayne, Pennsylvania, for Appellee, Roger W. Robert.

Before: SCIRICA, Chief Judge, ALITO and ROSENN, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Chief Judge.

At issue is whether the United States has waived sovereign immunity to suits for money damages under certain provisions of the Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 4851 et seq., and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.

Plaintiff filed suit against the Department of Veterans Affairs and a private landlord for unlawfully failing to disclose lead paint contamination in a leased apartment. Finding no express waiver of sovereign immunity, the District Court dismissed the claims for lack of subject matter jurisdiction. It also declined to exercise supplemental jurisdiction over related causes of action under state law. We will affirm the judgment on waiver of sovereign immunity, but vacate and remand the claims against the landlord for further proceedings.

I.

Plaintiff Derryen Cudjoe filed a complaint, by and through his natural guardians and next friends Barbarette and Derry Cudjoe, alleging the Department of Veterans Affairs and landlord Roger W. Robert violated federal law by failing to disclose information concerning lead contamination when his family leased an apartment in 2000 at 197 East 198th Street, Chester, Pennsylvania.¹ Cudjoe asserts federal causes of action under the Residential Lead-Based Paint Hazard Reduction Act and the Toxic Substances Control Act (Count I), as well as common law claims of negligence (Count II), against the Department of Veterans Affairs and Robert. The complaint also includes common law claims of negligent misrepresentation and omission (Count III), and intentional misrepresentation and omission (Count IV), against Robert alone.

After residing in the apartment for several months, Cudjoe, then two years old, tested positive for high concentrations of lead in his blood. The family vacated the apartment. The Bureau of Health of the City of Chester examined the property in November 2000, and found dangerous levels of lead paint and dust throughout the premises. Nevertheless, the complaint was not filed until September 24, 2003.

Robert answered the complaint, counter-claimed that Cudjoe's injuries were caused by his parents, and brought cross-claims against the Department of Veterans Affairs for liability, indemnification and/or contribution. Without filing an answer, the Department of Veterans Affairs moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), contending that neither the Residential Lead-Based Paint Hazard Reduction Act nor the Toxic Substances Control Act, alone or in conjunction, waived the government's sovereign immunity against private suits for money damages. The Department of Veterans Affairs argued Cudjoe should have proceeded instead under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Cudjoe, however, failed to exhaust his administrative remedies under the Federal Tort Claims Act, and his claim is now barred by its two-year statute of limitations, 28 U.S.C. § 2401(b). Cudjoe argued in response that he was not required to proceed under the Federal Tort Claims Act because the Residential Lead-Based Paint Hazard Reduction Act and the Toxic Substances Control Act, in conjunction with one another, waive sovereign immunity and provide an independent cause of action. The District Court granted the government's motion to dismiss, Cudjoe ex rel. Cudjoe v. Dep't of Veterans Affairs, 2004 WL 1447834 (E.D.Pa. Jun. 28, 2004), and Cudjoe filed this timely appeal.

II.

We have jurisdiction under 28 U.S.C. § 1291 over the appeal from the order granting the motion to dismiss for lack of subject matter jurisdiction. In this facial attack under Federal Rule of Civil Procedure 12(b)(1) challenging the court's subject matter jurisdiction, we treat the allegations in the complaint as true, making the disposition of the motion a purely legal determination. Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 495-96 (3d Cir.1987). Our review is plenary. Id.

III.

Cudjoe's contention that the United States has waived sovereign immunity to private suits claiming money damages for failure to disclose lead-paint contamination draws on separate provisions in the Toxic Substances Control Act and the Residential Lead-Based Paint Hazard Reduction Act.² Specifically, he claims the waiver of sovereign immunity with respect to lead paint in 15 U.S.C. § 2688 exposes the United States not only to the Toxic Substances Control Act's penalties, but also to the private cause of action for treble damages under the Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 4852d(b)(3). Cudjoe argues these provisions provide him with a right to sue the Department of Veterans Affairs directly, without using the procedures set forth in the Federal Tort Claims Act.

We reproduce and summarize the provisions at issue. The waiver of sovereign immunity with respect to lead paint in the Toxic Substances Control Act states in part that:

Each department, agency, and instrumentality of executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in a lead-based paint hazard, and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for certification, licensing, recordkeeping, or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief) respecting lead-based paint, lead-based paint activities, and lead-based paint hazards in the same manner, and to the same extent as any nongovernmental entity is subject to such requirements, including the payment of reasonable service charges. The Federal, State, interstate, and local substantive and procedural requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines regardless of whether such penalties or fines are punitive or coercive in nature, or whether imposed for isolated, intermittent or continuing violations. The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement (including, but not limited to, any injunctive relief, administrative order, or civil or administrative penalty or fine referred to in the preceding sentence, or reasonable service charge). The reasonable service charges referred to in this section include, but are not limited to, fees or charges assessed for certification and licensing, as well as any other nondiscriminatory charges that are assessed in connection with a Federal, State, interstate, or local lead-based paint, lead-based paint activities, or lead-based paint hazard activities program.

15 U.S.C. § 2688. The provision submits entities of the federal government to any federal, state or local "substantive and procedural requirement" regarding lead paint hazards, waiving the United States' sovereign immunity to such requirements.

The Residential Lead-Based Paint Hazard Reduction Act is a disclosure statute requiring a seller or lessor of residential target housing (1) to provide the purchaser or lessee with a lead hazard information pamphlet (as described in 15 U.S.C. § 2686); (2) to disclose the known or possible presence of lead-based paint or other lead hazards; (3) to provide information about lead hazards; and (4) to allow the purchaser or lessee a ten-day risk assessment period.³ 42 U.S.C. § 4852d(a). A seller or lessor who knowingly violates these requirements is subject to the following penalties:

(1) Monetary penalty

Any person who knowingly violates the provisions of this section shall be subject to civil money penalties in accordance with the provisions of section 3545 of this title.

(2) Action by Secretary

The Secretary [of Housing and Urban Development] is authorized to take such lawful action as may be necessary to enjoin any violation of this section.

(3) Civil liability

Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual.

(4) Costs

In any civil action brought for damages pursuant to paragraph (3) the appropriate court may award court costs to the party commencing such action, together with reasonable attorney fees and any expert witness fees, if that party prevails.

(5) Prohibited act

It shall be a prohibited act under section 409 of the Toxic Substances Control Act [15 U.S.C. § 2689] for any person to fail or refuse to comply with a provision of this section or with any rule or order issued under this section. For purposes of enforcing this section under the Toxic Substances Control Act [15 U.S.C. § 2601 et seq.] the penalty for each violation applicable under section 15 of that Act [15 U.S.C. § 2615] shall not be more than $10,000.

42 U.S.C. § 4852d(b)(1)-(5). Subsections (1) and (2) provide the...