Stringer v. Town of Jonesboro

• Decision Date: 18 January 2021
• Docket Number: No. 20-30192,20-30192
• Citation: 986 F.3d 502
• Parties: Renee STRINGER, Plaintiff—Appellant, v. TOWN OF JONESBORO; James Bradford, individually and in his official capacity as Mayor of the Town of Jonesboro, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

986 F.3d 502

Renee STRINGER, Plaintiff—Appellant,

v.TOWN OF JONESBORO; James Bradford, individually and in his official capacity as Mayor of the Town of Jonesboro, Defendants—Appellees.

No. 20-30192

United States Court of Appeals, Fifth Circuit.

FILED January 18, 2021

Joshua Lintz Critselous, P. Heath Hattaway, H2 Legal, L.L.C., Ruston, LA, Pamela Nathan Breedlove, Breedlove Law Firm, Bossier City, LA, for Plaintiff—Appellant.

Ben Louis Mayeaux, Jennifer Miller Ardoin, Bradley Lance Person, NeunerPate, Lafayette, LA, for Defendants—Appellees.

Before Elrod, Duncan, and Wilson, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

For nearly a decade, the Town of Jonesboro's wastewater system has spewed sewage onto Renee Stringer's property and into her home. Stringer repeatedly complained about this offensive problem to the Town and its Mayor, to no avail. Litigation ensued. Stringer brought a "citizen suit" under the Clean Water Act ("CWA"), see 33 U.S.C. § 1365, as well as constitutional claims under 42 U.S.C. § 1983 for the uncompensated taking of her property and the Mayor's retaliation against her. The district court dismissed all her claims. It held her citizen suit barred because the CWA prohibits such suits when a state is addressing the problem through "comparable" state law. See 33 U.S.C. § 1319(g)(6)(A)(ii). It held her § 1983 claims untimely under Louisiana's one-year prescriptive period.

The district court was right about Stringer's § 1983 claims. She was long aware of the underlying facts and failed to sue within a year. We therefore affirm the judgment dismissing those claims. But the district court was mistaken about Stringer's CWA citizen suit. The enforcement action to which the court pointed—the state health department's enforcement of the sanitary code—is not "comparable" to the CWA under our precedent. We therefore reverse the judgment dismissing Stringer's CWA suit and remand for further proceedings consistent with this opinion.

I

Stringer alleges¹ that, since at least 2011, the Town's wastewater treatment system has malfunctioned during periods of heavy rain. The culprit is the chronic failure of a pump at the "Cemetery Lift Station." Stringer's complaint identifies numerous discharges from the overwhelmed pump, beginning in 2013 and continuing into 2019. These effluvia, she claims, taint local creeks and rivers that are "waters of the United States" under the CWA. See Rapanos v. United States , 547 U.S. 715, 732, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion). They also invade Stringer's property, fouling her home's plumbing and frustrating daily chores like washing dishes or bathing. The noxious overflow has also strewn her yard with condoms, toilet paper, raw sewage, and feminine hygiene products and forced her to endure "horrendous odors."

Starting as far back as November 2011, Stringer repeatedly sought help from the Town and its Mayor, James Bradford, all in vain. She claims this was not bureaucratic sclerosis but political payback: Bradford had it in for Stringer because, while a Town alderwoman, she ran against him for Mayor in 2014. Stringer accuses Bradford of retaliating against her in various ways—such as by ignoring her pleas, getting the Town to sue her frivolously, and refusing to deliver sandbags to her house.

Louisiana regulators—including the Louisiana Department of Health (LDOH) and the Louisiana Department of Environmental Quality (LDEQ)—have long known about the problems flowing from the Cemetery Lift Station. On several occasions, LDEQ sent the Town warning letters and issued compliance orders about unauthorized discharges, including those afflicting Stringer. LDOH has also acted. Enforcing the state Sanitary Code, LDOH issued the Town a compliance order about the discharges on Stringer's property, imposed mandatory ameliorative measures, and assessed a daily fine. See generally LA. STAT. ANN. § 40:6 (providing penalties for Sanitary Code violations). When these spurs failed, LDOH went to state court and obtained an enforcement order against the Town.

On December 17, 2018, Stringer gave the mandatory notice of intent to file a citizen suit under the CWA. See 33 U.S.C § 1365(b). After the required waiting period, she sued the Town and Bradford (collectively, "Defendants") in federal district court on March 18, 2019, originally asserting only a CWA claim. In July 2019, the district court issued a notice of intent to dismiss under its local rules, because the Defendants had not responded and Stringer had not sought entry of default. See W.D. LA. LOCAL RULE 41.3. Stringer asked for more time to take a default. To show good cause for her request, Stringer attached various documents, some concerning LDEQ's enforcement efforts. The district court granted her motion. Stringer then filed an amended complaint adding two § 1983 claims (a takings claim and a First Amendment retaliation claim) along with new allegations supporting her CWA claim.

The Defendants moved to dismiss the CWA claim, arguing LDOH's ongoing enforcement efforts triggered the "diligent prosecution bar" against citizen suits. See 33 U.S.C. § 1319(g)(6)(A)(ii). They moved to dismiss the § 1983 claims as untimely.

Adopting the magistrate's report and recommendation, the district court dismissed all of Stringer's claims. The court agreed that LDOH's enforcement of the Sanitary Code triggered the CWA's diligent prosecution bar in § 1319(g). It also found both of Stringer's § 1983 claims untimely under Louisiana's one-year limitations period. Stringer moved for reconsideration, which the district court construed as a Rule 59(e) motion to alter or amend the judgment. In denying that motion, the district court pointed out for the first time that "LDEQ is also prosecuting [the Town] for the alleged [discharges], as evidenced by Stringer's filings."

Stringer timely appealed.

II

A district court's Rule 12(b)(6) dismissal for failure to state a claim is reviewed de novo . ANR Pipeline Co. v. La. Tax Comm'n , 646 F.3d 940, 946 (5th Cir. 2011). Dismissal is proper when, accepting all well-pled facts as true, the plaintiff has not stated a plausible claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). An otherwise plausible claim may also be doomed by a procedural impediment, like a statute of limitations or similar bar. See , e.g. , Jones v. Alcoa, Inc. , 339 F.3d 359, 364 (5th Cir. 2003).

III

The CWA creates a regime of water pollution regulation that harnesses state and federal power. See 33 U.S.C. § 1251(a), (b) ; see also Rapanos , 547 U.S. at 722-23, 126 S.Ct. 2208 ; Sw. Elec. Power Co. v. EPA , 920 F.3d 999, 1004 (5th Cir. 2019). The law protects the "integrity of the Nation's waters" through a permitting process that forbids the "discharge of pollutants" into the "waters of the United States" without prior state or federal regulatory approval. See 33 U.S.C. §§ 1251(a) ; 1311(a); 1362(7). Illicit discharges invite various sanctions, including injunctive relief, civil fines, and criminal penalties. Id. § 1319. Enforcement is primarily the work of government regulators. Id. § 1319(a)–(g). But Congress also "empowered private citizens to bring suit in federal court against alleged violators of the [CWA]." Env't. Conservation Org. v. City of Dallas , 529 F.3d 519, 526 (5th Cir. 2008) ; see generally 33 U.S.C. § 1365(a) (providing "any citizen may commence a civil action on his own behalf" under specified circumstances). These "citizen suits" are "meant to supplement rather than to supplant governmental action." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. , 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) ; see also Piney Run Pres. Ass'n v. Cnty. Comm'rs Of Carroll Cnty., MD , 523 F.3d 453, 456 (4th Cir. 2008) (citizen suits "provide a second level of enforcement" that "ensure[s] th[at] state and federal governments are diligent in prosecuting [CWA] violations.").

Two key CWA provisions confirm the supplemental role of citizen suits. First, § 1365, which authorizes citizen suits, provides that "[n]o [such] action may be commenced" if a state or federal regulator "has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the [CWA] standard, limitation, or order." 33 U.S.C. § 1365(b)(1)(B). That limitation is not implicated here because no state or federal regulator has sued to enforce the CWA against the Town (the LDOH has sued to enforce only the state Sanitary Code). Second, § 1319 provides that no CWA violation shall "be the subject of a civil penalty action under ... section 1365" when "a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection." Id. § 1319(g)(6)(A)(ii); see generally Lockett v. EPA , 319 F.3d 678, 683 (5th Cir. 2003) (discussing § 1319(g) bar).

It is the § 1319(g) bar that we must address. The district court ruled the bar was triggered, thus halting Stringer's suit, because the LDOH's ongoing enforcement of the Sanitary Code was action "comparable" to the CWA's enforcement measures. Stringer contests that ruling on appeal, arguing that under our precedent the Sanitary Code is not comparable to the CWA. We agree.

Our court set out the parameters of this inquiry in Lockett . Drawing on precedent from our sister circuits, we explained that a state statute is "comparable" to the CWA under § 1319(g)(6)(A)(ii) " ‘so long as the state law contains comparable penalty provisions which the state is authorized to enforce, has the same overall enforcement goals as the federal CWA, provides interested citizens a meaningful opportunity to participate at significant stages of the decision-making process, and adequately safeguards their legitimate substantive interests.’ " Lockett , 319 F.3d at 684 (quoting Arkansas Wildlife Fed'n v. ICI Americas, Inc. , 29 F.3d 376, 381 (8th Cir. 1994) ); see also Jones v. City of...