Rosemere v. Epa

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROSEMERE NEIGHBORHOOD 
ASSOCIATION, a Washington non-
profit corporation,
Plaintiff-Appellant,
v. No. 08-35045
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, an agency of  DC No.
CV 07-5080 BHS
the United States Department of
OPINION
the Interior; STEPHEN L. JOHNSON,
in his official capacity as
Administrator of the
Environmental Protection Agency,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding

Argued and Submitted
April 14, 2009—Seattle, Washington

Filed September 17, 2009

Before: Betty B. Fletcher, A. Wallace Tashima, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Tashima

13499
13502 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA

COUNSEL

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

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

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

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 dismiss-
ing 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, Wash-
ington (the “City”) over these issues.
 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA 13503
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 com-
plaints 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 minor-
ity 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 begin-
ning 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 retali-
ation 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 untime-
1
The OCR eventually dismissed Rosemere’s first complaint, because
Rosemere could not establish the required nexus between EPA funds and
the City’s actions, a decision not at issue in the present case.
13504 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA
liness 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 par-
ties by all accounts worked together to pursue the investiga-
tion. By February 2007, however, some eighteen months after
accepting the complaint, the OCR still had not issued prelimi-
nary 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 let-
ter 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 com-
plaint. The EPA then moved to dismiss Rosemere’s action as
moot.

Rosemere conducted limited discovery into the OCR’s his-
tory of handling complaints in responding to the EPA’s moot-
ness argument. That discovery uncovered data suggesting that
2
The EPA argues that Rosemere seeks relief that is no longer available
under APA § 706(1) because of the EPA’s voluntary actions; thus, that the
EPA is immune from suit. Section 702 waives the government’s sovereign
immunity for actions, such as this one, that seek injunctive relief. See
Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992). In turn, § 706 pre-
scribes standards for judicial review and demarcates what relief a court
may (or must) order. See Norton v. S. Utah Wilderness Alliance, 542 U.S.
55, 62 (2004); see also Forest Guardians v. Babbitt, 174 F.3d 1178, 1186-
87 (10th Cir. 1999). Where a court initially has jurisdiction under the
APA, a proposition that the EPA does not challenge in this case, the exis-
tence of statutory limitations on the remedies that the court may impose
does not defeat jurisdiction. The question of what remedies are available
and appropriate is one that we need not and do not address at this time.
 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA 13505
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 com-
plaint 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 volun-
tary 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 com-
plaints by Rosemere with the OCR, Rosemere could not
establish the sufficient likelihood of future delays necessary
to invoke the voluntary cessation exception. This appeal fol-
lowed.

II. Discussion

[1] 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 jurisdic-
tion to consider moot claims. Church of Scientology v. United
States, 506 U.S. 9, 12 (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 per-
formed 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 alleg-
13506 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA
ing 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 (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 (1968)).

[2] The party alleging mootness bears a “heavy burden” in
seeking dismissal. Laidlaw, 528 U.S. at 189. 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 demon-
strate that Rosemere will not encounter further regulatory
delays in the processing of its complaints. EPA could plausi-
bly 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, sec-
ond, by showing that, even if Rosemere does file such a com-
plaint, 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 fur-
3
In the district court, the EPA argued that it had taken a number of steps
to ensure prompt compliance with the regulatory deadlines, including hir-
ing more staff and adjusting its complaint-processing procedures. The
EPA does not raise this argument on appeal though, and we do not con-
sider it. We do note, however, that the EPA’s efforts at reform, while laud-
able, would not automatically moot the case, because “announcement of
an intention to change or adoption of a plan to work toward lawful behav-
ior” is generally insufficient to defeat an exception to mootness. See 13C
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3533.7, at 351-52 (3d ed. 2008) (footnote omit-
ted).
 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA 13507
ther 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”).

[3] 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 this Court of its constitutional power to adjudicate
this case.”). More importantly, when there is an argument
about whether a plaintiff will again encounter a challenged
activity, this court has required little more than what
Rosemere has already supplied: a stated intention to resume
the actions that led to the litigation.
13508 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA
For example, in Porter, 496 F.3d at 1014-15, the California
Secretary of State threatened several plaintiffs with prosecu-
tion for establishing “vote-swapping” websites during the
2000 election. The plaintiffs challenged the Secretary of State
in court, and the Secretary argued that the case was moot
because the plaintiffs had already shut down their sites. Id. at
1017. We concluded that the voluntary cessation exception
nonetheless applied. To show the likelihood of recurrence, it
was sufficient that the plaintiffs “stated that they will set up
vote-swapping websites” in the future, and that other plain-
tiffs “expressed their interest” in using such sites. Id. at 1017
n.6. We required nothing more from the plaintiffs to demon-
strate that they would again encounter the challenged govern-
ment behavior. Rather, it was the Secretary of State who had
“the ‘heavy burden’ of establishing that it is ‘absolutely clear’
that California will not threaten to prosecute” the plaintiffs if
they created such sites in the future. Id. at 1017.

Similarly, in Southern Oregon Barter Fair v. Jackson
County, 372 F.3d 1128 (9th Cir. 2004), we considered a non-
profit community fair’s First Amendment challenge to the
county’s permitting procedures. The impetus for the action
was a tumultuous encounter between the fair and the county
in 1996, but the county argued that the case was moot because
the fair had not applied for another permit or engaged in any
fair preparations since then. Id. at 1134. In an argument strik-
ingly reminiscent of the one the EPA now makes, the county
contended that “the possibility that the Fair will actually
obtain funding and a site [for a new fair] is speculative.” Id.
We first allowed that the case might be moot “if the Fair had
entirely ceased to operate, left the business, and no longer
sought or intended to seek a license.” Id. However, failing
that, the case was not moot. The fair’s “stated intention to
return to business,” combined with its ongoing efforts to
arrange another gathering, were sufficient to demonstrate the
likelihood of recurrence. Id. The burden fell on the county to
prove that the barriers to holding another fair were “ ‘insur-
 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA 13509
mountable.’ ” Id. (quoting Clark v. City of Lakewood, 259
F.3d 996, 1012 (9th Cir. 2001)).

[4] Drawing on Jackson County, we note that if Rosemere
had dissolved its organization or ended its regulatory reform
efforts, we might be more hospitable to EPA’s mootness argu-
ment. But Rosemere has done no such thing. It has stated its
intention to file another complaint with the EPA, which is suf-
ficiently similar to what we required of the plaintiffs in Jack-
son County and Porter to defeat mootness. In fact, Rosemere
has done more, supplementing its claim with a declaration by
one of its officers that Rosemere will likely file another com-
plaint once it is assured of timely processing by the EPA —
lest it direct its limited resources at fruitless efforts. Given this
stated intent, the burden is on the EPA to show that there is
“very little chance” of further delays in the processing of the
complaints, cf. Luckie, 752 F.2d at 458, or that Rosemere
faces an “insurmountable” hurdle to filing another complaint,
see Jackson County, 372 F.3d at 1134. The EPA has done nei-
ther.

[5] Our conclusion that this case is not moot is also sup-
ported by an additional fact: What the district court initially
classified as an “isolated instance of untimeliness” has since
bloomed into a consistent pattern of delay by the EPA.
Rosemere has twice encountered that pattern whereby it files
a complaint, hears nothing for months, and then only after fil-
ing a lawsuit does the EPA respond. This “litigation history”
is probative of the likelihood of future delays. See Biodiver-
sity Legal Found. v. Badgley, 309 F.3d 1166, 1174 (9th Cir.
2002). We are also intent on ensuring that “the government
cannot escape the pitfalls of litigation by simply giving in to
a plaintiff ’s individual claim without renouncing the chal-
lenged policy, at least where there is a reasonable chance of
the dispute arising again between the government and the
same plaintiff.” Legal Assistance for Vietnamese Asylum
Seekers v. Dep’t of State, 74 F.3d 1308, 1311 (D.C. Cir.
1996), vacated on other grounds, 519 U.S. 1 (1996).
13510 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA
[6] Finally, we note that Rosemere’s experience before the
EPA appears, sadly and unfortunately, typical of those who
appeal to OCR to remedy civil rights violations. As indicated
earlier, discovery has shown that the EPA failed to process a
single complaint from 2006 or 2007 in accordance with its
regulatory deadlines. Amicus the Center on Race, Poverty &
the Environment has helpfully provided further examples of
such delay. This pattern of delay as shown by the experiences
of other parties before an agency can be relevant to the moot-
ness analysis, see Biodiversity, 309 F.3d at 1174, and helps
convince us that this action should go forward. See also In re
Ctr. for Auto Safety, 793 F.2d 1346, 1352 (D.C. Cir. 1986)
(holding that agency’s “pattern of delay in violation of the
unambiguous statutory command” was sufficient for the vol-
untary cessation exception to apply, notwithstanding the agen-
cy’s “bald assertion” of future timeliness).

[7] We thus conclude that the district court erred in dis-
missing Rosemere’s action. As the Seventh Circuit held,
“when the relief sought is an order to the delaying agency to
hurry up,” but the agency acts “to moot [the] case by acting
before [the] claim for relief can be decided,” such a sequence
“begs for an exception to the ordinary rules of mootness.”
Lucien v. Johnson, 61 F.3d 573, 574-75 (7th Cir. 1995).4
4
We also note that the EPA’s argument that Rosemere’s claim for pro-
spective injunctive relief is unripe is without merit, for several reasons.
First, Rosemere likely faces further delays from the agency and therefore
has a “realistic danger of sustaining a direct injury as a result of” the agen-
cy’s disregard of its own regulations. Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979) (articulating test for ripeness). Sec-
ond, as stated above, the jurisdictional discovery yielded an extensive
record of the EPA’s pattern of delay, so that little, if any, further factual
development is necessary. See Chang v. United States, 327 F.3d 911, 922
(9th Cir. 2003) (noting ripeness of claim when the “issues remaining are
legal and do not require further factual development”). Finally, Rosemere
faces hardship if this case cannot be adjudicated, because it cannot effec-
tively direct its litigation resources until it knows whether OCR will act
promptly on its complaints. See id. (“The uncertain state of the law is
 ROSEMERE NEIGHBORHOOD ASSOCIATION v. EPA 13511
III. Conclusion

[8] Rosemere’s complaintis not moot. The judgment of the
district court is reversed and the case remanded for further
proceedings consistent with this opinion.

REVERSED and REMANDED.

sufficient hardship to prompt judicial review.”). For these reasons,
Rosemere’s claim is ripe. See also 13B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 3532.6,
at 635 (3d ed. 2008) (“Protracted failure to act also may be subject to
review in order to determine whether action has been wrongfully with-
held.”) (collecting cases on ripeness).