Roberts v. Hamer

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0241p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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CHRISTINA ROBERTS, next friend of Howard
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Felix Wipfel, a minor, and Thealyn Wipfel, a
minor, -
Plaintiff-Appellant, -
No. 09-6481

,
>
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v.
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CHRISTOPHER HAMER; JOAN HAMER,
Defendants-Appellees. -
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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 09-00117—David L. Bunning, District Judge.
Argued: June 10, 2011
Decided and Filed: August 26, 2011
Before: COLE, McKEAGUE, and GRIFFIN, Circuit Judges.

_________________

COUNSEL
ARGUED: Steven J. Megerle, Covington, Kentucky, for Appellant. Sherrill P.
Hondorf, HONDORF LAW OFFICE, Batavia, Ohio, for Appellees. ON BRIEF:
Steven J. Megerle, Covington, Kentucky, Robert N. Trainor, Covington, Kentucky, for
Appellant. Sherrill P. Hondorf, HONDORF LAW OFFICE, Batavia, Ohio, Donald L.
Nageleisen, Covington, Kentucky, for Appellees.
_________________

OPINION
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GRIFFIN, Circuit Judge. Plaintiff Christina Roberts, proceeding solely as the
next friend of her two minor children, appeals the district court’s dismissal of her
children’s claims against defendants Christopher and Joan Hamer for violations of the
disclosure requirements contained in the Residential Lead-Based Paint Hazard

1
No. 09-6481 Roberts v. Hamer, et al. Page 2

Reduction Act of 1992 (“RLPHRA”), 42 U.S.C. §§ 4851-4856. Because the statute does
not provide her children with a cause of action to sue for the violations, we affirm.

I.

Christina Roberts is the mother of minors Howard Felix Wipfel and Thealyn
Wipfel. In October 2002, Roberts and her partner (also the father of Roberts’s two
children) entered into a lease agreement with Christopher and Joan Hamer to rent an
apartment in Covington, Kentucky. Before entering into the agreement, defendants
allegedly failed to provide the family with federally-required disclosure forms regarding
the potential presence of lead-based paint in the apartment building. Defendants also
failed to provide the family with a precautionary pamphlet detailing how to protect
against the dangers of lead-based paint. As a result of these failures, Roberts’s children
“were conceived, and resided in the subject property for several years where unknown
to them high levels of lead were present.” Roberts’s minor children allegedly suffered
damages as a result of the exposure to lead paint in the building and will continue to
suffer physical and mental injury for the rest of their lives.

On behalf of her children, Roberts, as their next friend, filed a seven-count
complaint against defendants. In count one, she contends that defendants’ failure to
make the appropriate disclosures before the family entered into the lease agreement
violated the RLPHRA and the regulations promulgated thereunder. In counts two
through seven, she asserts violations of both state law and the federal Toxic Substances
Control Act, as amended (“TSCA”), 15 U.S.C. §§ 2601-2629.

Defendants moved under Rules 12(b)(1) and (6) of the Federal Rules of Civil
Procedure to dismiss all seven claims. With respect to the RLPHRA claim, defendants
argued that the children lacked standing to assert a claim under the statute. They argued
also that the children lacked a private right to sue for money damages under the TSCA.
They sought a discretionary dismissal of the state-law claims without prejudice under
28 U.S.C. § 1367(c). Defendants included in their motion and supporting brief facts that
were uncovered during discovery in a related state action involving Roberts. Roberts
moved to strike defendants’ entire motion on the basis that such material could not be
No. 09-6481 Roberts v. Hamer, et al. Page 3

considered on a motion to dismiss and that converting defendants’ motion into one for
summary judgment was not possible because the factual statements contained in the
motion were unsupported by citations to record evidence. See Fed. R. Civ. P. 56(c)(1).

The district court granted defendants’ motion, dismissed the federal claims with
prejudice, and dismissed the state-law claims without prejudice in its discretion under
28 U.S.C. § 1367. It found it unnecessary to consider materials outside of the complaint
referenced in defendants’ motion to dismiss, confined its review to the complaint’s
allegations, and denied as moot Roberts’s motion to strike. The district court considered
Roberts’s request that she be granted leave to amend the complaint to assert a claim
against defendants under the RLPHRA in her own capacity, but denied leave based on
futility because her individual claim would be barred by the statute of limitations.

Roberts timely appealed.

II.

Although Roberts appeals the district court’s entire order of dismissal, see Notice
of Appeal, she has briefed only the dismissal of the RLPHRA claim and the related
denial of her motion to strike. Accordingly, we address the RLPHRA claim only. See
Terry v. Tyson Farms, Inc., 604 F.3d 272, 280 n.5 (6th Cir. 2010) (noting that issues not
raised and argued on appeal are deemed forfeited). And given that the district court
considered only the allegations in the complaint, we find no error in its denial of
Roberts’s motion to strike as moot.

A.

Regarding the appropriate standard of review, the district court did not specify
the legal standards it applied to defendants’ motion to dismiss, which was brought under
subparagraphs (1) and (6) of Rule 12(b). The court ultimately concluded that the
children lacked “standing” to sue under the RLPHRA, suggesting that it considered
defendants’ motion under Rule 12(b)(1). See, e.g., Stalley v. Methodist Healthcare, 517
F.3d 911, 916 (6th Cir. 2008) (“We review de novo a district court’s dismissal of a case
for lack of standing – lack of subject matter jurisdiction – under Fed. R. Civ. Proc.
No. 09-6481 Roberts v. Hamer, et al. Page 4

12(b)(1).”). Courts that have addressed this very issue also have framed the problem in
terms of “standing.” See Mason ex rel. Heiser v. Morrisette, 403 F.3d 28, 28 (1st Cir.
2005) (“The issue presented in this appeal is whether a lessee’s minor children have
standing to sue a lessor for failure to disclose information regarding the hazards of lead
paint as required by the [RLPHRA].”); McCormick v. Kissel, 458 F. Supp. 2d 944, 947
(S.D. Ind. 2006) (concluding that “because an individual’s standing to sue may go
beyond what is explicitly stated in a statute, D.M. does have standing under RLPHRA”);
see also Cudjoe ex rel. Cudjoe v. Dep’t of Veterans Affairs, 426 F.3d 241, 250 (3d Cir.
2005).

Framing the issue in this way, however, is potentially confusing because
“standing,” by itself, traditionally has referred to whether a plaintiff can satisfy Article
III’s case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992); Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) (“[S]tanding is a question
of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case
or controversy, or at least to overcome prudential limitations on federal-court
jurisdiction[.]” (emphasis omitted)), and there is no doubt that the children satisfy this
threshold jurisdictional requirement. The parties’ briefs on appeal demonstrate their
confusion on the issue. Defendants contend that “these two minor children cannot
invoke the court’s federal question jurisdiction under the RLPHRA because Congress
did not empower them to do so[,]” while at the same time recognizing that “the District
Court did have subject matter jurisdiction over claims under the RLPHRA[.]” And
Roberts devotes a section of her brief to explaining why her children have Article III and
prudential standing.

The parties have confused the questions of constitutional and prudential standing
with statutory standing, which asks “whether this plaintiff has a cause of action under
the statute.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97 n.2 (1998). The
question is closely related to the merits inquiry (oftentimes overlapping it) and is
analytically distinct from the question whether a federal court has subject-matter
jurisdiction to decide the merits of a case. See id.; Davis, 442 U.S. at 239 n.18
No. 09-6481 Roberts v. Hamer, et al. Page 5

(distinguishing the concepts of Article III standing and cause of action and noting that
“[w]hether petitioner has asserted a cause of action . . . depends not on the quality or
extent of her injury,” as does the inquiry under Article III standing, “but on whether the
class of litigants of which petitioner is a member may use the courts to enforce the right
at issue”); see also Radha A. Pathak, Statutory Standing and the Tyranny of Labels,
62 Okla. L. Rev. 89, 111 (2009) (discussing the tendency of federal courts, especially
in ERISA cases, to incorrectly treat statutory standing as a threshold inquiry akin to
jurisdiction – sometimes treating it as jurisdictional – instead of addressing it as a merits
question). This case concerns statutory standing, an issue we find to be a matter of
statutory construction, not jurisdiction.

Where a plaintiff lacks statutory standing to sue, her claim should be dismissed
for failure to state a claim upon which relief can be granted, not for lack of subject-
matter jurisdiction. See Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep’t of
Educ., 615 F.3d 622, 626 (6th Cir. 2010); Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d
1021, 1024 (9th Cir. 2009);1 Bridges v. Am. Elec. Power Co., 498 F.3d 442, 444 (6th
Cir. 2007); see also Northwest Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 365
(1994) (“The question whether a federal statute creates a claim for relief is not
jurisdictional”); cf. Cobb v. Contract Transp., Inc., 452 F.3d 543, 548-50 (6th Cir. 2006)
(rejecting contention on appeal that the district court lacked subject-matter jurisdiction
over plaintiff’s FMLA claim because defendant did not meet the statute’s definition of
“employer” and because the plaintiff did not meet the definition of “eligible
employee”).2

1
In Vaughn, the Ninth Circuit originally stated its standard of review in terms of subject-matter
jurisdiction because that was how the district court had addressed the question of the plaintiff’s statutory
standing. Vaughn v. Bay Envtl. Mgmt., Inc., 544 F.3d 1008, 1010 (9th Cir. 2008). Apparently intending
to avoid further confusion on the question in the future, the court issued an amended opinion nearly nine
months later solely for the purpose of substituting its original standard-of-review paragraph with the
following language: “Although the district court dismissed the case for lack of subject matter jurisdiction,
a dismissal for lack of statutory standing is properly viewed as a dismissal for failure to state a claim rather
than a dismissal for lack of subject matter jurisdiction.” Vaughn, 567 F.3d at 1024 (citations omitted).
2
We recognize that in the past we have acknowledged an exception to this general rule in the
ERISA context, where we have treated as jurisdictional the question whether a plaintiff is a “participant”
or “beneficiary” permitted to assert a cause of action under ERISA. See, e.g., Moore v. LaFayette Life Ins.
Co., 458 F.3d 416, 442 (6th Cir. 2006); Ward v. Alt. Health Delivery Sys., Inc., 261 F.3d 624, 626 (6th Cir.
2001); Swinney v. Gen. Motors Corp., 46 F.3d 512, 518 (6th Cir. 1995). But see Bridges, 498 F.3d at 444
No. 09-6481 Roberts v. Hamer, et al. Page 6

“We give fresh review to a district court’s order to dismiss a claim under Civil
Rule 12(b)(6).” Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 308 (6th Cir. 2009). In
doing so, we “accept all allegations in the complaint as true” and “determine whether the
allegations plausibly state a claim for relief.” Id.

B.

In 1992, Congress enacted the RLPHRA based upon its findings that low-level
lead poisoning, caused primarily by the ingestion of household dust containing lead from
deteriorating or abraded lead-based paint, endangers the health and development of
children living in as many as 3.8 million American homes. 42 U.S.C. § 4851. The
RLPHRA was enacted to, among other things, “develop a national strategy to build the
infrastructure necessary to eliminate lead-based paint hazards in all housing as
expeditiously as possible” and to “educate the public concerning the hazards and sources
of lead-based paint poisoning and steps to reduce and eliminate such hazards.” Id.
§ 4851a(1), (7).

The RLPHRA authorizes the Secretary of Housing and Urban Development to
take actions to reduce the potential for lead poisoning, including: providing grants to
eligible applicants to evaluate and reduce lead-based paint hazards in housing that is not
federally owned or assisted or publicly owned; establishing a task force to make
recommendations on expanding resources and efforts to evaluate and reduce lead-based
paint hazards in private housing; issuing guidelines for the conduct of federally
supported work involving risk assessments, inspections, interim controls, and the
eventual abatement of lead-based paint hazards; and promulgating regulations for the
disclosure of lead-based paint hazards in “target housing” (generally, housing
constructed prior to 1978, see id. § 4851b(27)) that is offered for sale or lease. Id. §§
4852, 4852a-d.

(“This case turns on whether [plaintiff] is a ‘participant’ in the Plan, a question of ‘statutory standing’ (not
Article III standing).” (emphasis added)). This, of course, is not an ERISA case.
No. 09-6481 Roberts v. Hamer, et al. Page 7

The statute is explicit with respect to the contents of the regulations the Secretary
must promulgate. Relevant here, the regulations “shall require that, before the purchaser
or lessee is obligated under any contract to purchase or lease the housing, the seller or
lessor shall – (A) provide the purchaser or lessee with a lead hazard information
pamphlet,” and “(B) disclose to the purchaser or lessee the presence of any known
lead-based paint, or any known lead-based paint hazards, in such housing and provide
to the purchaser or lessee any lead hazard evaluation report available to the seller or
lessor[.]” Id. § 4852d(a)(1)(A), (B). The regulations so provide. See 40 C.F.R.
§ 745.107(a)(1), (2); see also Sweet v. Sheahan, 235 F.3d 80, 86-87 (2d Cir. 2000)
(“[T]he statute imposes obligations on the agencies to promulgate regulations which will
then – and only then – impose obligations on sellers and lessors.”).

In addition to providing for public enforcement of its substantive provisions
through fines and injunctions, the RLPHRA authorizes private enforcement through civil
actions: “Any person who knowingly violates the provisions of this section shall be
jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the
amount of damages incurred by such individual.” 42 U.S.C. § 4852d(b)(3). It is this
provision that we consider here. Roberts contends on appeal, as she did below, that
despite her children’s status as neither purchasers nor lessees, the children nevertheless
are entitled to seek redress for their injuries caused by defendants’ alleged violations
because the children are de facto lessees with Article III and prudential standing to sue.3

C.

“‘A matter requiring statutory interpretation is a question of law requiring de
novo review, and the starting point for interpretation is the language of the statute
itself.’” United States v. Brown, 639 F.3d 735, 737 (6th Cir. 2011) (quoting United

3
Roberts argued below that one can plausibly read her complaint to allege a claim under the
RLPHRA on her own behalf. The district court rejected this interpretation of the complaint, see Dist. Ct.
Op. 7 (“A reading of the Complaint evidences that Christina Roberts is not included in the RLPHRA count
as asserting a claim on behalf of herself.”), and Roberts does not renew her argument on appeal. See
Roberts’s Br. 7 (“The mother and next friend of the injured children, Christina Roberts[,] filed this action
on her children’s behalf . . . .” (emphasis added)). She also does not challenge the district court’s denial
of leave to amend the complaint. Therefore, we do not address these abandoned issues.
No. 09-6481 Roberts v. Hamer, et al. Page 8

States v. Batti, 631 F.3d 371, 375 (6th Cir. 2011)). We begin with the cardinal rule of
statutory interpretation: “[T]he meaning of a statute must, in the first instance, be sought
in the language in which the act is framed, and if that is plain, and if the law is within the
constitutional authority of the lawmaking body which passed it, the sole function of the
courts is to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470,
485 (1917). “If the words are plain, they give meaning to the act, and it is neither the
duty nor the privilege of the courts to enter speculative fields in search of a different
meaning.” Id. at 490.

We consider first, then, the text of the relevant provision. Again, it states:

Any person who knowingly violates the provisions of this section shall
be jointly and severally liable to the purchaser or lessee in an amount
equal to 3 times the amount of damages incurred by such individual.

42 U.S.C. § 4852d(b)(3).

The language plainly and expressly limits private recovery to a “purchaser or
lessee” of target housing, and no one else. See Mason, 403 F.3d at 31. “Where a statute
names the parties granted the right to invoke its provisions, such parties only may act.”
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6-7 (2000)
(citation, internal quotation marks, and alterations omitted). Because the language is
plain – indeed, it could not be more so – we stop here and hold that children of a lessee
may not sue a lessor for violations of the RLPHRA’s disclosure requirements. We
decline to expand the cause of action or to infer an implied one where Congress has
expressly created one. See, e.g., Traverse Bay Intermediate Sch. Dist., 615 F.3d at 630
(“Congress has expressly delegated regulatory and enforcement authority to the
Secretary of Education; thus, it is logical to conclude that it did so at the exclusion of
local educational agencies.”); see also Alexander v. Sandoval, 532 U.S. 275, 286-87
(2001) (“Without [statutory intent], a cause of action does not exist and courts may not
create one, no matter how desirable that might be as a policy matter, or how compatible
with the statute.”); cf. Johnson v. City of Detroit, 446 F.3d 614, 625 (6th Cir. 2006).
No. 09-6481 Roberts v. Hamer, et al. Page 9

Ours is not the only circuit to consider this question. The First Circuit considered
it in Mason ex rel. Heiser v. Morrisette, 403 F.3d 28 (1st Cir. 2005). There, a lessee’s
two minor children, who both suffered from elevated levels of lead in their blood,
brought an action through their guardian/attorney against the lessors, alleging violations
of the disclosure provisions of the RLPHRA. Id. at 29. The First Circuit affirmed the
district court’s dismissal of the claim, “[f]inding that the plain language of the statute
limits the private cause of action to a ‘purchaser or lessee,’” which the lessee’s children
clearly were not. Id. at 30. The court explained:

Here, the plain language of the statute limits recovery under
§ 4852d(b)(3) to a “purchaser or lessee.” We find this limitation not only
clear, but also consistent with the purpose of the disclosure provision –
to provide the purchaser or lessee of target property with notice that there
could be a lead-based paint hazard present in the subject premises, and
the opportunity to either decline to enter into a contract regarding the
premises or proceed forward with the transaction in the face of the
knowledge that a lead-based paint hazard could be present. See
§ 4852d(a)(1). This disclosure provision does not require the seller or
lessor to abate the lead-paint hazard, nor disqualify a purchaser or lessee
with young children from occupying a property that possibly contains
lead-based paint hazards. Thus, because a violation of the statute occurs
when the seller or lessor fails to disclose, it is logical that the party
harmed by the failure to disclose is the purchaser or the lessee.

Id. at 31.

The Mason court then recognized that extra-textual sources need not be
considered, but nonetheless briefly discussed the relevant regulations and legislative
history because it found both to be consistent with the statute’s plain language:

First, our interpretation is consistent with the HUD/EPA definition of
lessee, which essentially confirms that any entity that is capable of
entering into a legally binding contract for the purchase or lease of real
property is permitted to seek redress for a violation of the disclosure
provision of the RLPHRA; that is, the regulation clarifies that the term
“lessee” is not limited to individuals and that it includes sublessees. See
40 C.F.R. § 745.103; 24 C.F.R. § 35.86 & Comment IV(C)(9). Thus, the
regulation, which is a reasonable clarification of the statute, does not, as
the Appellants contend, impermissibly narrow the class of “lessees” who
No. 09-6481 Roberts v. Hamer, et al. Page 10

have standing under Section 4852[d](b)(3), and the Appellants do not
have standing under either the regulation or the statute.
Similarly, our interpretation of Section 4852d does not conflict with the
legislative history of the RLPHRA. To be sure, as Appellants point out,
it is clear from both the legislative history and the text of the statute itself
that the RLPHRA was enacted to protect children from the hazards of
lead-based paint in residential housing. But, the disclosure provision is
merely one method in an attempt to effectuate this goal, and does not
conflict with the overarching purposes of the RLPHRA to protect
children from lead poisoning.
Lastly, we note that the federal scheme to reduce the hazards of
lead-based paint in residential housing is intended to be implemented in
conjunction with state and local laws that require abatement of
lead-based paint. Thus, the Mason children are not left without a
remedy: they can pursue claims against the Appellees in the New
Hampshire state courts.

Id. at 32-33. We agree.

Various federal district courts, and state courts, too, have concluded that the
RLPHRA’s plain language confines private actions to purchasers and lessees of target
housing and thereby disallows the child of a lessee to maintain an action thereunder. See
Sabra ex rel. Waechter v. Iskander, No. 1:08-CV-1204-TWT, 2008 WL 4889681, at *3-
4 (N.D. Ga. Nov. 10, 2008); L.B. III v. Hous. Auth. of Louisville, 345 F. Supp. 2d 725,
729 (W.D. Ky. 2004); Wallace v. United States, 335 F. Supp. 2d 252, 259-60 (D.R.I.
2004); Gladysz v. Desmarais, No. Civ. 02-208-B, 2003 WL 1343033, at *2 (D.N.H.
Mar. 17, 2003); Skerritt v. Bach, 805 N.Y.S.2d 213, 214-15 (App. Div. 2005); Williams
v. Ciboro Rentals, No. CI04-5603, 2006 WL 176532, at *2 (Ohio. C.P. Jan. 13, 2006).
We recognize that there is some reported authority for Roberts’s view of the statute, see,
e.g., McCormick, 458 F. Supp. 2d at 947-49, but the authority does not persuade us to
depart from the statute’s plain language.

Finally, Roberts claims that her children’s status as third-party beneficiaries of
the lease under Kentucky law provides them with the same rights as the parties to the
lease, thereby making them de facto lessees with the right to sue under the RLPHRA.
Regardless of whether she is correct as a matter of state law, we fail to see the legal
No. 09-6481 Roberts v. Hamer, et al. Page 11

relevance of that fact here. Congress created a cause of action for purchasers and
lessees, not those who happen to benefit from the sales and leases, yet are not,
themselves, purchasers or lessees. Importing principles of state contract law into the
statutory analysis would be inappropriate where Congress has used plain and
unambiguous language in crafting a private enforcement mechanism.

III.

In conclusion, the RLPHRA expressly limits those who may sue for violations
of its disclosure requirements to a “purchaser or lessee.” Roberts’s children are neither.
Therefore, Roberts cannot state a valid claim under the RLPHRA on their behalf. We
affirm.