Keith v. LeFleur

• Docket Number: 2200821
• Decision Date: 08 September 2023
• Parties: Anthony Keith, Ronald C. Smith, William T. Gipson, and Latonya J. Gipson v. Lance R. LeFleur, in his official capacity as Director of the Alabama Department of Environmental Management; and Marilyn G. Elliott, in her official capacity as a Deputy Director and the Nondiscrimination Coordinator of the Alabama Department of Environmental Management
• Court: Alabama Court of Civil Appeals

1

Anthony Keith, Ronald C. Smith, William T. Gipson, and Latonya J. Gipson v. Lance R. LeFleur, in his official capacity as Director of the Alabama Department of Environmental Management; and Marilyn G. Elliott, in her official capacity as a Deputy Director and the Nondiscrimination Coordinator of the Alabama Department of Environmental Management

No. 2200821

Alabama Court of Civil Appeals

September 8, 2023

Appeal from Montgomery Circuit Court (CV-19-900283)

ON APPLICATION FOR REHEARING

MOORE Judge.

This court's opinion released on June 23, 2023, is withdrawn and the following is substituted therefor.

Anthony Keith, Ronald C. Smith, William T. Gipson, and Latonya J Gipson ("the landowners") appeal from a judgment entered by the Montgomery Circuit Court ("the trial court") in favor of Lance R. LeFleur ("the director"), in his official capacity as the director of the Alabama Department of Environmental Management ("ADEM"), and Marilyn G. Elliott, in her official capacity as a deputy director at ADEM who serves as ADEM's nondiscrimination coordinator ("the nondiscrimination coordinator"). We reverse the trial court's judgment and remand with instructions for the trial court to enter a summary judgment in favor of the landowners.

Background

The Civil Rights Act of 1964 provides that "[n]o person shall ... be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Section 42 U.S.C. § 2000d-1, requires federal agencies "empowered to extend Federal financial assistance to any program or activity" to issue rules and regulations to achieve the objective of preventing and redressing unlawful discrimination committed by the recipient of the financial assistance. Pursuant to 42 U.S.C. § 2000d-1, the United States Environmental Protection Agency ("the EPA") promulgated a rule generally prohibiting unlawful discrimination, including racial discrimination, "under any program or activity receiving EPA assistance ...." 40 C.F.R. § 7.30. Furthermore, the EPA directed that "each recipient [of EPA financial assistance] shall adopt grievance procedures that assure the prompt and fair resolution of complaints which allege violation of[, among other subparts, 40 C.F.R. § 7.30]." 40 C.F.R. § 7.90(a).

ADEM is a state agency that receives financial assistance from the EPA. On November 5, 2018, the director, expressly citing 40 C.F.R. § 7.90(a), issued a memorandum ("the November 5, 2018, memorandum") to the nondiscrimination coordinator, adopting procedures for resolving complaints of unlawful discrimination ("the grievance procedures"). The November 5, 2018, memorandum provides, in pertinent part:

"The Nondiscrimination Coordinator will process complaints alleging discrimination by ... []ADEM[] on the basis of race, color, national origin, disability, age, sex, retaliation or intimidation against any individual or group as protected by 40 C.F.R. Parts 5 and 7 (see paragraph (10) below), as follows:

"(1) Complaints alleging discrimination by ADEM will be forwarded to ADEM's Nondiscrimination Coordinator in Montgomery.

"(2) In cases where the complainant is unable or incapable of providing a written statement, a verbal complaint of discrimination will be forwarded to the Nondiscrimination Coordinator at [a specified telephone number]. The complainant will be interviewed by an ADEM employee who, if necessary, will assist the person in converting [oral] complaints to writing.

"(3) All complaints alleging discrimination by ADEM shall be reviewed for the following information:

"a. the specific action(s) by ADEM that allegedly discriminate or result in discrimination in violation of 40 C.F.R. Parts 5 and 7.

"b. the specific impact that allegedly has occurred or will occur as the results of such action(s); and

"c. the identity of the parties subjected to, impacted by, or potentially impacted by the alleged discrimination.

"(4) Within ten working days of receipt of the complaint, ADEM will provide the complainant or his/her representative with a written acknowledgement of receipt and notice of how the complaint will be investigated. ADEM will also notify complainants that their complaint may also be filed with the U.S. EPA, External Civil Rights Compliance Office, 1200 Pennsylvania Avenue, N.W., Mail Code 1201A, Washington, DC 20460-1000 in accordance with 40 C.F.R. Parts 5 and 7.

"(5) The Nondiscrimination Coordinator, based on the information in the complaint and any additional information provided by the complainant, will determine if the matters alleged are within the jurisdiction of 40 C.F.R. Parts 5 and 7, and whether the complaint has sufficient merit to warrant an investigation. These determinations will be made within fifteen working days after the receipt of the complaint by ADEM. A complaint will be regarded as meriting investigation unless:

"a. it clearly appears on its face to be frivolous or trivial;

"b. Within the time allotted for making the determination of jurisdiction and investigative merit, ADEM voluntarily concedes noncompliance and agrees to take appropriate remedial action or reaches an informal resolution with the complainant; or

"c. Within the time allotted for making the determination of jurisdiction and investigative merit, the complainant withdraws the complaint.

"(6) If the Nondiscrimination Coordinator accepts the complaint, the Coordinator will designate an individual to investigate the allegation(s). After examining all of the information in light of the requirements of 40 C.F.R. Parts 5 and 7, the investigator will draft a report with findings and recommendations.

"(7) In the event that the complainant has not submitted sufficient information to make a determination of jurisdiction or investigative merit, ADEM may request additional information. This request shall be made within fifteen working days of the receipt of the complaint by ADEM. The complainant is under no obligation to provide any requested information.

"(8) In the case of complaints involving third party entities[,] e.g.[,] a sub-recipient, permit applicant or permittee, ADEM will notify the third party entity that the complaint has been received no later than the time of the written notice provided to a complainant that the complaint has been accepted. At such time, ADEM will ask the third party entity to provide information necessary for ADEM to investigate the complaint. ADEM will use the information provided by the third party entity and the complainant in resolving the complaint.

"(9) Within 120 days of accepting the complaint, the Office of the Director will respond in writing to the complainant approving or disapproving the findings and recommendations made in the investigative report, based upon a preponderance of the evidence. ADEM will implement the recommendations approved by the Office of the Director.

"(10) ADEM employees shall not retaliate, intimidate, threaten, coerce, or discriminate against any individual or group for the purpose of interfering with any right or privilege granted under 40 C.F.R. Parts 5 and 7, or because an individual has filed a complaint or has testified, assisted, or participated in any way in an investigation, or has opposed any practice made unlawful under 40 C.F.R. Parts 5 and 7.

"By and through this delegation of responsibilities to the ADEM Nondiscrimination Coordinator, the above procedures are hereby adopted to assure the prompt and fair resolution of complaints which allege unlawful discrimination under Title VI, and the other federal civil rights laws covered under 40 C.F.R. Parts 5 and 7."

On February 18, 2019, the landowners filed a complaint in the trial court seeking a judgment declaring that the grievance procedures developed and adopted by the director in the November 5, 2018, memorandum are invalid and seeking to enjoin their implementation. In the complaint, the landowners alleged that each of them had been subjected to racial discrimination by certain permitting activities of ADEM relating to landfills and wastewater facilities operating near their residences. The landowners asserted that they each have an interest in filing a grievance against ADEM based on the alleged racial discrimination but that ADEM had impaired their ability to file such a grievance by failing to validly adopt the grievance procedures.

The director and the nondiscrimination coordinator filed an answer to the complaint on March 25, 2019. The parties later filed competing motions for a summary judgment, and, on June 11, 2021, the trial court entered a summary judgment against the landowners, concluding that the landowners lacked standing to maintain a challenge to the validity of the grievance procedures. Having concluded that the landowners had failed to establish standing, which is a jurisdictional defect, see State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999), the trial court dismissed the landowners' complaint. The landowners timely appealed to this court, which has jurisdiction over the appeal pursuant to Ala. Code 1975, § 12-3-10 ("The Court of Civil Appeals shall have exclusive appellate jurisdiction of all ... appeals from administrative agencies other than the Alabama Public Service Commission ...."), as construed by our supreme court in Kimberly-Clark Corp. v. Eagerton, 433 So.2d 452, 454 (Ala. 1983) ("We hold that § 12-3-10, in referring to 'appeals from administrative agencies,' was intended to grant to the Court of Civil Appeals exclusive jurisdiction of all appeals involving the enforcement of, or challenging, the rules, regulations, orders, actions, or decisions of administrative agencies.").

Standard of Review

Although the trial court ordered that the case be "dismissed," it determined that the...