August 14, 2000.
MEMORANDUM OPINION AND ORDER
Defendant's Motion to Dismiss filed on June 3, 1999, is before the Court. Plaintiff West Dallas Coalition for Environmental Justice ("Coalition") filed a Second Amended Complaint against the United States of America ("United States") and Carol Browner in her capacity as Administrator of the United States Environmental Protection Agency, alleging that actions of the federal defendants constituted: (1) a violation of the Equal Protection component of the Fifth Amendment and (2) a violation of 42 U.S.C. § 1981. For the reasons stated below, Defendant's Motion to Dismiss is GRANTED as to all claims.
I. BACKGROUND FACTS
This is a long and convoluted case. Consequently, the only facts in this section are the ones relevant to the issue before this court today. On October 31, 1991, pursuant to 42 U.S.C. § 9604, the Environmental Protection Agency ("EPA") commenced a removal action for the RSR Corporation Superfund Site ("Site"), which contains approximately 13.6 square miles in West Dallas. This action involved the removal of contaminated material from residential property at the
On December 5, 1991, the Coalition, an unincorporated association of West Dallas residents, initiated this action seeking an order directing the EPA not to implement the then planned removal action. In response, the EPA moved to dismiss the action, alleging that this Court lacked subject matter jurisdiction under 42 U.S.C. § 9613(h) and § 9659, and, subsequently on the ground of mootness.
This section bars challenges to ongoing removal actions.
This section requires a mandatory 60-day notice requirement before initiating a CERCLA citizen suit.
In March 1995, while the motion to dismiss was pending, the Dallas Housing Authority ("DHA") completed the demolition of 167 buildings and excavation and removal of approximately 24,000 cubic yards of contaminated soil from West Dallas residential property. On May 9, 1995, the EPA signed a "Record of Decision" ("ROD") for the residential property. The ROD stated that no further action was necessary for protection of human health and the environment.
See Record of Decision RSR Corporation Superfund Site Operable Unit No. 2-DHA Property Dallas, Texas dated May 9, 1995, at 8.
On December 14, 1998, this Court granted the EPA's motion to dismiss the Coalition's claims based on environmental statutes, but denied the motion with respect to the claims based on the Administrative Procedure Act ("APA"), the Fifth Amendment, and 42 U.S.C. § 1982. On December 23, 1998, the EPA filed a Motion for Reconsideration as to claims that had not been dismissed. On February 22, 1999, in response to this motion, this Court found that the Coalition asserted claims that did not directly challenge an on-going EPA removal action, hence, the Coalition was granted 30 days to amend the complaint "to clarify that its claims are, in fact, not site specific."
The Coalition filed its Second Amended Complaint on March 23, 1999. The Coalition alleges that actions of the EPA violate the Fifth Amendment and brings forth a new claim under 42 U.S.C. § 1981. The Coalition asserts that this Court has jurisdiction under the APA, 5 U.S.C. § 701 et seq., and 28 U.S.C. § 1331 and 1343. The complaint alleges that (1) West Dallas is a low-income, minority community in the City of Dallas; (2) hazardous substances have been and are being released in West Dallas; (3) the EPA knew or should have known of these releases which "present an imminent hazard to health and the environment of West Dallas;" (4) the EPA failed to take effective action to prevent or remedy the releases; (5) the EPA has performed adequate cleanups "in other areas which are inhabited by white residents;" (6) the EPA's actions, in addition to other federal actions, have contributed to Dallas area segregation by inhibiting the revitalization of West Dallas; (7) the EPA's alleged failure to clean up West Dallas has contributed to this segregation by causing white residents to avoid or leave West Dallas; and (8) the EPA's actions were intended to discriminate and have discriminated against West Dallas residents because of their race and ethnicity. The Coalition seeks a permanent injunction directing the EPA to clean up hazardous substances in the residential area and an order to take numerous additional actions related to the alleged environmental injustices. On June 3, 1999, Defendants filed a Motion to Dismiss.
A Rule 12(b)(6) motion to dismiss is disfavored in the law and is rarely granted. See Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). When ruling on a motion to dismiss, the court must accept all well-pleaded facts as true and view them in the light most favorable to the pleading party. See, e.g., Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). The complaint will only be dismissed if it appears beyond doubt that the pleading party can prove no set of facts in support of its claim that would entitle it to relief. See, e.g., Campbell, 43 F.3d at 975; Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). The relevant question is not whether the pleading party will prevail but whether it is entitled to offer evidence to support its claims. See Cross Timbers Concerned Citizens v. Saginaw, 991 F. Supp. 563, 571 (N.D. Tex. 1997).
B. Sovereign Immunity
Defendants allege that this Court should dismiss the complaint because federal courts are courts of limited jurisdiction, and absent jurisdiction conferred to them by statute, they lack the power to adjudicate claims. See Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994). As the party asserting jurisdiction, Plaintiff bears the burden of demonstrating that jurisdiction is proper. See Epps v. Bexar-Medina-Atascosa Counties Water Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982).
A party may not bring suit against the United States without an explicit waiver of sovereign immunity by Congress. See, e.g., United States v. Sherwood, 312 U.S. 584, 586-87 (1941); Ware v. United States, 626 F.2d 1278, 1286 (5th Cir. 1980). This well-established principle also extends to government agencies and officers. See Simons v. Vinson, 392 F.2d 732, 735-36 (5th Cir. 1968).
However, under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., "final agency action" is subject to judicial review and thus, sovereign immunity is waived. Id. at § 704. Conversely, absent some "final" action, the APA does not provide a cause of action to challenge agency decisions, and in effect, courts lack the requisite subject matter jurisdiction to adjudicate the matter. See, e.g., Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1990); Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994).
The Supreme Court has established four factors for determining when agency action is indeed "final": (1) whether the challenged action is a definitive statement of the agency's position, (2) whether the action has the status of law with penalties for noncompliance, (3) whether the impact on the plaintiff is direct and immediate, and (4) whether the agency expects immediate compliance. See, e.g. Califano v. Sanders, 430 U.S. 99, 105 (1977); Abbott Laboratories v. Gardner, 387 U.S. 136, 149-53 (1967).
In this case, factors (2) and (4) do not apply. However, Plaintiff alleges that "[t]he U.S's, the EPA's, and Ms. Browner's and her predecessors' actions have had the effect of and were done for the purpose of discriminating against the residents of the West Dallas community because of those residents' race and ethnicity." Second. Am. Compl. ¶ 13. Moreover, Plaintiff also asserts that "the denial of the right to be free from racial discrimination and segregation is final agency action." Resp. Br. at 6.
Despite these allegations, Plaintiff does not indicate any specific site where the Environmental Protection Agency ("EPA") has taken inadequate action or inaction. Thus, a "definitive statement" of the EPA's position does not exist. In addition, because Plaintiff has not indicated any site where the EPA failed to take action, "direct and immediate harm" has not been sufficiently alleged.
Therefore, because none of the four factors which indicate "final agency action" have been adequately pled, there does not exist "final agency action." In effect, the APA cannot be used to waive sovereign immunity. Thus, on the basis of Defendant's sovereign immunity, this Court lacks the requisite subject matter jurisdiction to hear Plaintiffs claim. Because, Plaintiff fails to even meet the minimum threshold level concerning jurisdiction, this action cannot be subject to judicial review and Defendants' Motion to Dismiss is GRANTED.
C. Plaintiff's Section 1981 Claim
Defendants further allege that when considering Plaintiff's Section 1981 claim, subject matter jurisdiction is lacking for other reasons. Section 1981 gives all citizens of the United States the right "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981(a). Further, Section 1981(c), which was added by the Civil Rights Act of 1991, provides that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c) (emphasis added).
It is well settled that a waiver of sovereign immunity must be specific and explicit. See United States v. Shaw, 309 U.S. 495, 60 (1940). Section 1981 does not contain an express waiver of sovereign immunity, merely a general prohibition of racial discrimination. Penn v. Schlesinger, 490 F.2d 700, 703 (5th Cir. 1973), rev`d on other grounds, 497 F.2d 970 (1974) (en banc). Because of this, beginning with Beale v. Blount, 461 F.2d 1133, 1137 (5th Cir. 1972), the "Fifth Circuit has long held that the federal government retains sovereign immunity for claims brought under [Section 1981]." Maximum Care Home Health Agency v. HCFA, No. 3097-CV-1451-R, 1998 WL 901642, at *5 (N.D. Tex. April 14, 1998).
Moreover, in Lee v. Hughes, 145 F.3d 1272 (llth Cir. 1998), the Eleventh Circuit noted that the plain language of Section 1981 confirms that the statute does not apply to the federal government. Id. at 1277. Specifically, while Section 1981 provides a cause of action for individuals who are discriminated against by private actors or under color of state law, it does not provide a cause of action for discrimination under color of federal law. Id.; see also Williams v. Glickman, 936 F. Supp. 1, 3-5 (D.D.C. 1996) (providing an in-depth discussion of the rationale behind the holding that the federal government is immune from suit under Section 1981).
Thus, because the federal government is immune from suit under Section 1981, Plaintiffs Section 1981 claim should be DISMISSED for lack of subject matter jurisdiction.
D. Plaintiff's Fifth Amendment Equal Protection Claim
Moreover, Defendants alleges that even if jurisdiction was proper, Plaintiff has not adequately asserted a Fifth Amendment equal protection claim which would withstand Defendant's Motion to Dismiss. The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law . . ." U.S. CONST. amend. V. In numerous decisions, the Supreme Court has held that the Due Process Clause of the Fifth Amendment forbids the federal government from denying equal protection of the laws. See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976); Bolling v. Sharpe, 347 U.S. 497, 500 (1954). Hence, "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93 (1976).
Under equal protection analysis, in order to demonstrate the existence of a racial classification based on a facially neutral law or official act, there must be both proof of discriminatory purpose and proof of discriminatory impact. See, e.g, McCleskey v. Kemp, 481 U.S. 279,292 (1987); Mobile v. Bolden, 446 U.S. 55, 67 (1980), Washington v. Davis, 426 U.S. 229, 239 (1976). Mere proof of discriminatory impact is insufficient by itself to show the existence of a racial classification — there must also be proof of discriminatory purpose. Washington, 426 U.S. at 239.
Discriminatory purpose can be proven by demonstrating a clear pattern that can be explained only by a discriminatory purpose. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960); Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). Another way of proving discriminatory purpose is through the history surrounding the government's action, "particularly if it reveals a series of official actions taken for invidious purposes." Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252, 267 (1977). A third way of proving discriminatory purpose is through the legislative or administrative history of a law. Id. at 268.
Although Plaintiff asserts that Defendant's actions have contributed to the segregation of the Dallas area, Plaintiff fails to identify any specific West Dallas site which the EPA has neglected to act and identifies only one non-minority site, Bio-Ecology Systems, Inc., which the EPA has initiated hazardous cleanup. Resp. Br. at 8-9. Although the pleaded facts, taken as true in the light most favorable to the non-moving party, may demonstrate a discriminatory impact — a site in a non-minority area has had at least one hazardous cleanup while sites in minority areas have not — discriminatory purpose, even with the facts taken as true, cannot be shown. Citing one incident of hazardous cleanup in a non-minority neighborhood is insufficient to allege discriminatory purpose, either through statistical pattern, history of agency action, or legislative history. Because Plaintiff has insufficiently alleged discriminatory purpose, an essential element of a Fifth Amendment equal protection claim, the Court must DISMISS Plaintiffs Complaint.
For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED as to all claims. It is so ORDERED.