Am. Unites for Kids v. Rousseau

985 F.3d 1075

AMERICA UNITES FOR KIDS; Public Employees for Environmental Responsibility, Plaintiffs-Appellants,

v.Sylvia ROUSSEAU, In Her Official Capacity As Co-Interim Superintendent Of The Santa Monica Malibu Unified School District; Christopher King, In His Official Capacity As Co-Interim Superintendent Of The Santa Monica Malibu Unified School District; Jan Maez, In Her Official Capacity As Associate Superintendent And Chief Financial Officer Of The Santa Monica Malibu Unified School District; Laurie Lieberman ; Jose Escarce; Craig Foster ; Maria Leon-Vazquez; Richard Tahvildaran-Jesswein; Oscar de la Torre; Ralph Mechur, In Their Official Capacities As Members Of The Santa Monica Malibu Unified School District Board Of Education, Defendants-Appellees.

America Unites for Kids; Public Employees for Environmental Responsibility, Plaintiffs-Appellants,

v.Ben Drati, Superintendent Of The Santa Monica Malibu Unified School District; Melody Canady, Associate Superintendent; Jon Kean; Laurie Lieberman ; Craig Foster ; Maria Leon-Vazquez; Richard Tahvildaran-Jesswein; Oscar de la Torre; Ralph Mechur, Members Of The Board Of Education, Defendants-Appellees.

No. 16-56390

No. 19-55088

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2019 Pasadena, California

Filed January 22, 2021

SIMON, District Judge:

In this citizens’ civil action to enforce the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601 – 2629, two environmental organizations sued administrators and board members of the Santa Monica Malibu Unified School District. Plaintiffs sought remediation of several school buildings containing dangerous levels of polychlorinated biphenyls (PCBs). After a court trial in 2016, the district court entered judgment in favor of one of the Plaintiffs, dismissed the other for lack of standing, and issued a permanent injunction against Defendants. The district court also imposed sanctions against both Plaintiffs under the court's inherent authority. Although the TSCA allows a court to award reasonable attorneys’ fees, expert witness fees, and other costs of suit under 15 U.S.C. § 2619(c)(2), the district court denied fees and costs to the prevailing Plaintiff as part of the court's sanctions order. After the district court entered judgment and a permanent injunction in 2016, certain events occurred in late 2018, prompting Defendants to ask the court to modify the permanent injunction, which the court did.

In this appeal, Plaintiffs challenge the district court's sanctions order and its dismissal of one of the Plaintiffs for lack of standing. Plaintiffs also challenge the district court's decision in December 2018 partially modifying the 2016 permanent injunction. Plaintiffs also ask us to take judicial notice of a document dated September 11, 2019, which Plaintiffs did not present to the district court.

Significant developments in the law governing a district court's inherent authority to sanction a party in a civil suit for litigation misconduct also occurred after the district court entered its 2016 judgment and permanent injunction. In 2017, the Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger , ––– U.S. ––––, 137 S. Ct. 1178, 197 L.Ed.2d 585 (2017), which clarified the procedural requirements and substantive limitations that apply when a district court imposes sanctions under its inherent authority, rather than pursuant to any statute or rule. Because the district court did not have the benefit of Goodyear when it issued its sanctions ruling, the court's order understandably does not comply with Goodyear ’s procedural and substantive limitations.¹

For the reasons explained below, we vacate and remand the district court's sanctions order. We also reverse the district court's dismissal of one Plaintiff for lack of standing. We affirm in part the district court's 2018 amended judgment and permanent injunction (except for the sanctions order, which is vacated and remanded). Finally, we deny Plaintiffs’ request for judicial notice.

BACKGROUND

The Environmental Protection Agency (EPA) regulates PCBs under the TSCA and its implementing regulations, 40 C.F.R. § 761.² Plaintiff America Unites for Kids (AU) is a nonprofit organization that promotes environmental health in schools, including advocating for removal of PCBs. Plaintiff Public Employees for Environmental Responsibility (PEER) is a nonprofit organization that advocates for public employees concerned with environmental issues. Defendants are administrators and members of the Board of Education of the Santa Monica Malibu Unified School District (School District). The School District operates, among other schools, Juan Cabrillo Elementary School (JCES) and Malibu Middle and High School (MMHS), both located in Malibu, California (collectively, the Malibu Campus). AU's members and officers include parents of students who attend classes at the Malibu Campus.

In 2009 and 2010, the School District discovered PCBs in air and soil samples at the Malibu Campus. In 2011, the School District removed 48 truckloads of soil containing PCBs and pesticides. After several teachers and alumni at the Malibu Campus were diagnosed with thyroid cancer during the following two years, teachers and parents began advocating for additional environmental testing.

In the fall of 2013, the School District tested certain rooms at the Malibu Campus for PCBs in window and door caulking and interior wall paint, as well as in air samples. That testing revealed that the Malibu Campus contained PCBs in caulking above the legal limit and in air samples above outdoor background levels.³ In November 2013, the EPA informed the School District that a PCB clean-up plan was required. The School District performed additional remediation in 2014, along with additional testing.

Parents of students at the Malibu Campus also conducted their own testing in 2014. They gathered samples from window and door caulking in several classrooms and submitted those samples to laboratories for PCB testing. After some samples revealed additional classrooms with unlawful levels of PCBs, AU submitted the test results to the EPA and the School District. Jennifer DeNicola, the president of AU and a parent of an elementary school student at JCES, also submitted the test results to the Los Angeles County District Attorney's Office, requesting enforcement of state public health laws.

On March 23, 2015, AU and PEER filed this citizen suit under the TSCA. Among other matters, Plaintiffs sought injunctive relief, requiring the School District to remove all building materials that violate the TSCA and its regulations. On April 1, Plaintiffs filed a First Amended Complaint, a motion for preliminary injunction, several supporting declarations, and an application to accelerate discovery under Rule 34(a)(2) of the Federal Rules of Civil Procedure. In their application for accelerated discovery, Plaintiffs asked the district court to permit their qualified environmental expert to enter the Malibu Campus on a weekend to take caulking samples in every regularly occupied room in any building constructed before 1980.

The next day, April 2, Defendants filed their opposition to Plaintiffs’ application for accelerated discovery. On April 6, the district court granted in part and denied in part Plaintiffs’ application, ruling that the parties may begin discovery before the district court held a scheduling conference under Rule 26(f) but also stating that

discovery should be accomplished according to the normal response time for such discovery. The request to conduct a site inspection from April 17, 2015, through April 19, 2015, is denied. The Court expects the parties to work cooperatively to schedule their discovery and to resolve most if not all disputes without the intervention of the Magistrate Judge or this Court.

On April 29, Defendants moved to dismiss or, in the alternative, to stay, under the doctrine of primary jurisdiction. At about the same time, Plaintiffs served a discovery request under Rule 34, seeking entry onto the Malibu Campus to conduct a site inspection for PCBs. After Defendants objected, Plaintiffs moved to compel.

On June 15, 2015, while Plaintiffs’ motion to compel was pending, the district court denied the School District's motion to dismiss or stay. In rejecting the School District's argument that the case should be dismissed under the doctrine of primary jurisdiction, the district court explained that it could eliminate the possibility of interference with the EPA's jurisdiction by "limiting the testing that Plaintiffs are allowed to undertake through the discovery process" to air and wipe sampling. The district court then would allow testing of "caulk or more invasive discovery" only if the air and wipe sampling showed that to be necessary. On June 30, 2015, Plaintiffs withdrew their motion to compel but stated their intention to serve a "revised request to enter onto land under Fed. R. Civ. P. 34(a)(2) to proceed with the type of discovery approved by the Court in its June 15, 2015 Order."

Without informing the School District, however, DeNicola collected samples of caulk from classrooms at the Malibu Campus between June 4 and June 8, 2015, and she submitted those samples to an independent laboratory to test for PCBs. After DeNicola received the test results, AU forwarded that information to the School District, the EPA, and Congressman Ted Lieu. Brenton Brown, another member of AU's leadership, obtained samples from the Malibu Campus on August 5, and DeNicola took additional samples on August 5, and August 21, 2015, all without the School District's knowledge or permission.

On August 24, Plaintiffs asked the district court to reconsider the portion of its ruling that limited Plaintiffs’ right to conduct physical testing at the Malibu Campus. The district court denied Plaintiffs’ motion for reconsideration on September 30, 2015. While that motion was pending, however, AU, through DeNicola,...