Rosemere Neighborhood Ass'n v. U.S. E.P.A.

• Decision Date: 17 September 2009
• Docket Number: No. 08-35045.,08-35045.
• Parties: ROSEMERE NEIGHBORHOOD ASSOCIATION, a Washington non-profit corporation, Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States Department of the Interior; Stephen L. Johnson, in his official capacity as Administrator of the Environmental Protection Agency, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 1169

ROSEMERE NEIGHBORHOOD ASSOCIATION, a Washington non-profit corporation, Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States Department of the Interior; Stephen L. Johnson, in his official capacity as Administrator of the Environmental Protection Agency, Defendants-Appellees.

No. 08-35045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2009.

Filed September 17, 2009.

Christopher Winter, Crag Law Center, Portland, OR, for the plaintiff-appellant.

Rebecca Shapiro Cohen, Assistant U.S. Attorney, Seattle, WA, for the defendants-appellees.

Marybelle Nzegwu, San Francisco, CA, for amicus curiae, Center on Race, Poverty & the Environment.

Appeal from the United States District Court for the Western District of Washington, Benjamin H. Settle, District Judge, Presiding. DC No. CV 07-5080 BHS.

Before: BETTY B. FLETCHER, A. WALLACE TASHIMA, and SIDNEY R. THOMAS, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Rosemere Neighborhood Association ("Rosemere") appeals the district court's dismissal of its action against the Environmental Protection Agency ("EPA") on mootness grounds. We conclude that the district court erred in dismissing the case, because the voluntary cessation exception to mootness applies. We therefore reverse.

I. Factual and Procedural Background

Rosemere is a non-profit community organization in Clark County, Washington. It works to improve the provision of municipal services in low-income communities, and has had a contentious relationship with the City of Vancouver, Washington (the "City") over these issues.

In 2003, Rosemere filed an administrative complaint against the City with the EPA's Office of Civil Rights ("OCR"). The EPA established the OCR to investigate complaints of discrimination in the use of federal funds, pursuant to Title VI of the Civil Rights Act of 1964. See 42 U.S.C. § 2000d-1; 40 C.F.R. pt. 7. In its complaint, Rosemere alleged that the City failed properly to utilize EPA funds to address lingering environmental problems in low-income and minority communities in the City.

According to the regulations governing the OCR, any party may file a complaint alleging discrimination which the OCR "will review" for acceptance or rejection within 20 days. 40 C.F.R. § 7.120(d)(1)(i). If the OCR accepts the complaint, it shall issue preliminary findings within 180 days of the beginning of the complaint investigation. 40 C.F.R. § 7.115(c)(1).

Shortly after Rosemere filed its complaint, the City opened an inquiry into Rosemere that eventually culminated in the revocation of Rosemere's status as a formal neighborhood association. Rosemere then filed a second complaint with the OCR in December 2003, alleging retaliation by the City.¹ The OCR did not accept or reject this second complaint within twenty days as the regulations require, ostensibly because of "severely limited office resources and a substantial volume of competing programmatic demands." In fact, some eighteen months lapsed with no action by the OCR, until Rosemere filed suit in federal district court in June 2005 against the EPA, seeking to compel the OCR to accept or reject the retaliation complaint. About six weeks later, the OCR notified Rosemere that it had accepted the complaint for investigation. The EPA then moved to dismiss Rosemere's action as moot. The district court granted the motion, concluding that the delay was nothing "more than an isolated instance of untimeliness and oversight," and there was no evidence that the EPA's failure to act was a "practice" the EPA might resume in the future.

Following the OCR's acceptance of the complaint, the parties by all accounts worked together to pursue the investigation. By February 2007, however, some eighteen months after accepting the complaint, the OCR still had not issued preliminary findings or recommendations, and Rosemere filed the present lawsuit under the Administrative Procedure Act ("APA") to compel action.² See 5 U.S.C. § 706(1). Rosemere sought a declaratory judgment that the EPA had violated the regulatory deadlines of 40 C.F.R. § 7.115, as well as an injunction compelling the EPA to complete the investigation. About ten weeks later, on April 30, 2007, the OCR completed its investigation into the complaint and sent a notification letter to Rosemere. The OCR concluded that the timing of the City's actions against Rosemere was "suspicious," but did not amount to impermissible retaliation, thereby closing the complaint. The EPA then moved to dismiss Rosemere's action as moot.

Rosemere conducted limited discovery into the OCR's history of handling complaints in responding to the EPA's mootness argument. That discovery uncovered data suggesting that the OCR had missed its regulatory deadlines in almost every complaint filed with the agency in recent years.

On November 12, 2007, Rosemere filed an amended complaint in the action, adding a claim for injunctive relief to compel the EPA to process all Rosemere complaints filed in the next five years within the regulatory deadlines. Rosemere stated that it intended to refile its original Title VI complaint against the City in the near future, with better documentation of the funding nexus between the City and the EPA. On the basis of this stated intention, as well as the evidence of the pattern of delay obtained through discovery, Rosemere argued that the case was not moot and that, in any event, the voluntary cessation exception to mootness applied. The district court rejected these arguments and granted EPA's motion to dismiss. It concluded that, in the absence of any pending complaints by Rosemere with the OCR, Rosemere could not establish the sufficient likelihood of future delays necessary to invoke the voluntary cessation exception. This appeal followed.

II. Discussion

We review a district court's dismissal of an action for mootness de novo. Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir.1994). Federal courts lack jurisdiction to consider moot claims. Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). "A claim is moot if it has lost its character as a present, live controversy." Am. Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir.1997). In general, when an administrative agency has performed the action sought by a plaintiff in litigation, a federal court "lacks the ability to grant effective relief," and the claim is moot. See Pub. Util. Comm'n v. FERC, 100 F.3d 1451, 1458 (9th Cir.1996). Courts have long recognized, however, a "voluntary cessation" exception to mootness. Under this doctrine, the mere cessation of illegal activity in response to pending litigation does not moot a case, unless the party alleging mootness can show that the "allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). Without such an exception, "the courts would be compelled to leave [t]he defendant ... free to return to his old ways." Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir.2007) (alterations in original) (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)).

The party alleging mootness bears a "heavy burden" in seeking dismissal. Laidlaw, 528 U.S. at 189, 120 S.Ct. 693. It must show that it is "absolutely clear" that the allegedly wrongful behavior will not recur if the lawsuit is dismissed. See id. In the case at bench, this requirement means that the EPA must demonstrate that Rosemere will not encounter further regulatory delays in the processing of its complaints. EPA could plausibly satisfy this burden in one of two ways: first, by showing that it is extremely unlikely that Rosemere will file another complaint (and thus come before the agency again); or, second, by showing that, even if Rosemere does file such a complaint, the EPA will meet its regulatory deadlines in resolving it.

Before this court, the EPA has chosen to rely on the first alternative argument.³ It contends that, because Rosemere has no pending complaints before the agency, the prospect of further delay is merely "speculative." To defeat mootness, the EPA further argues, Rosemere must show to a "certainty" that it will file another complaint.

There are several problems with the EPA's argument. For one, it impermissibly attempts to shift the burden to Rosemere to defeat mootness. As we have stated, it is the EPA that bears the "heavy burden" in this case. See id. The EPA cannot meet this burden solely by claiming that Rosemere has not done enough to show the likelihood of further delays. See FTC v. Affordable Media, LLC, 179 F.3d 1228, 1238 (9th Cir.1999) (noting that the assertion that the plaintiff "did not offer any admissible evidence that the [defendants] were likely to repeat any wrongful conduct ... is not sufficient to satisfy the [defendants'] burden" to show mootness). Rather, the EPA must demonstrate why repetition of the wrongful conduct is highly unlikely. Cf., e.g., Luckie v. EPA, 752 F.2d 454, 458-59 (9th Cir.1985) (finding mootness because the permanent relocation of residents exposed to an asbestos dump meant there was "very little chance" the plaintiffs would encounter a second asbestos dump and "again be subjected to EPA's regulatory and enforcement scheme").

Put another way, the burden is not on Rosemere to show it will file another complaint. The burden is on the EPA to show that Rosemere will not do so. The EPA's attempt to reverse this burden is insufficient to show mootness. See Affordable Media, 179 F.3d at 1238; see also Armster v. U.S. Dist. Court, 806 F.2d 1347, 1359 (9th Cir.1986) ("The bare assertion by the Justice Department in its mootness motion that this situation will not recur .... [is not] sufficient to deprive ...