United States Court of Appeals
For the First Circuit
No. 04-1908
JACOB C. MASON, BY HIS GUARDIAN, RICHARD HEISER, ESQ.;
NATASHA A. MASON, BY HER GUARDIAN, RICHARD HEISER, ESQ.,
Plaintiffs, Appellants,
v.
JAMES P. MORRISETTE; JOSEPH M. GRIFFITHS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr. U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.
Neil T. Leifer, with whom Allyson S. Hauck, Thornton & Naumes,
and Christopher J. Seufert, were on brief, for appellants.
Sean T. O'Connell, with whom Shaheen & Gordon, P.A., was on
brief, for appellee Griffiths.
Stephen J. Dibble, with whom Robert T. Mittelholzer and
Mittelholzer & Dibble, PLLC, were on brief, for appellee
Morrisette.
April 7, 2005
STAHL, Senior Circuit Judge. 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 Residential Lead-Based Paint Hazard
Reduction Act ("RLPHRA"), 42 U.S.C. § 4851, et. seq.1 We find that
they do not.
I. BACKGROUND
Plaintiffs-Appellants Jason C. Mason and Natasha A. Mason
are minor children who resided with their mother, Lisa Mason, at
18-A West Bow Street, Franklin, New Hampshire from May 21, 1997
until July 2, 1998. During that time, the property was first owned
by Appellee James P. Morrisette and then was subsequently
transferred to Appellee Joseph M. Griffiths.2 On September 29,
1997, Natasha was examined and found to have high levels of lead in
her blood. As a result, on October 15, 1997, the New Hampshire
1
All references throughout the opinion to the United States
Code are to 42 U.S.C.
2
Prior to moving to the Bow Street apartment, the Masons
resided at 94-95 Franklin Street in Franklin, New Hampshire, from
December 1, 1996 to May 21, 1997, in an apartment owned at all
relevant times by Appellee Morrisette. In the Appellants'
complaint to the district court, they stated that both Jason and
Natasha were tested for lead poisoning and were determined to have
high blood lead levels during the time they resided on Franklin
Street. The Appellants stated that their mother complained to
Appellee Morrisette regarding a possible lead paint hazard in the
Franklin Street apartment, and that Appellee Morrisette suggested
that the Masons move to the West Bow Street apartment. These facts
are not relied on nor discussed by the Appellants in their brief to
this court.
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Division of Health Services inspected the West Bow Street apartment
for lead paint and found significant lead contamination. Appellee
Griffiths was ordered by the state to abate the lead hazards
discovered during the inspection but did not comply. Both Jason
and Natasha were subsequently tested and their blood contained
dangerous amounts of lead. On July 2, 1998, the state of New
Hampshire provided the Masons with emergency housing so that they
could vacate their lead-ridden apartment.
Natasha and Jason, through their guardian and attorney
Richard Heiser, brought suit in the United States District Court
for the District of New Hampshire alleging that the Appellees
violated the RLPHRA.3 In their complaint, they also raised several
state law claims including that the defendants violated the New
Hampshire Consumer Protection Act, were negligent in failing to
maintain both the Franklin Street and West Bow Street buildings,
and misrepresented that the West Bow Street building was lead-free.
Defendants Morrisette and Griffiths moved to dismiss the
RLPHRA claims, arguing that the leasehold in question was pursuant
to an oral lease, and that the protections and remedies of the
RLPHRA apply only to written leases. The district court, before
ruling on the defendants' motion to dismiss, requested sua sponte
3
It is not clear from the record, and the Appellants declined
to provide an explanation at argument, why Lisa Mason, as the
mother of Jason and Natasha, did not bring the suit against the
Appellees.
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that the parties address the issue of whether the minor children of
a lessee have standing to sue the lessor under the RLPHRA. After
reviewing the parties' submissions, the district court granted the
defendants' motion to dismiss, holding that the minor children were
not "lessees" for purposes of the RLPHRA and therefore had no
statutory standing to seek remedies under that statute.4
The Appellants filed this timely appeal, arguing that the
district court committed reversible error when it ruled that the
minor children did not have standing because the plain language of
the RLPHRA, along with the legislative history and the regulations
implementing the RLPHRA, make it clear that the statute was enacted
to protect children residing in residential property from lead
poisoning, and thus Congress intended for the minor children of
lessees to have standing under the civil liability provision. The
Appellants contend that the district court's interpretation of the
statute produces an absurd result because it provides that only the
adult lessee may seek damages for violations of the disclosure
provision of the RLPHRA when it is actually the children of the
adult lessees, not the adults themselves, who are the ones likely
to suffer injury from such violations. Finding that the plain
4
The district court then declined to exercise supplemental
jurisdiction over the Appellants' remaining state law claims.
We note that because the district court granted the
Appellees' motion to dismiss based on the Appellants' lack of
standing, the issue of whether the disclosure provision of the
RLPHRA applies to oral leases is not before this court.
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language of the statute limits the private cause of action to a
"purchaser or lessee," and because the Mason children cannot be
considered either, we affirm.
II. ANALYSIS
We review a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) de novo, and we ask whether the well-
pleaded facts, taken as true, justify recovery on any supportable
legal theory. See Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir.
2000). Thus, for purposes of our review of the district court's
motion to dismiss, we assume that the defendants were obligated to
disclose under the RLPHRA, that they did not disclose in violation
of the RLPHRA, and that Natasha and Jason's lead poisoning was
caused by the defendants' violation of the statute. With these
assumptions, we turn to our review of the statute.
A. The Statutory Scheme
The RLPHRA was enacted in 1992 in an effort, among other
things, "to 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." § 4851a(1), (7). The Act was
the response to congressional findings that "low-level lead
poisoning is widespread among American children, afflicting as many
as 3,000,000 children under age 6," § 4851(1); that "the health and
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development of children living in as many as 3,800,000 American
homes is endangered by chipping or peeling lead paint, or excessive
amounts of lead-contaminated dust in their homes," § 4851(5); and
that "the danger posed by lead-based paint hazards can be reduced
by abating lead-based paint or by taking interim measures to
prevent paint deterioration and limit children's exposure to lead
dust and chips," § 4851(6).
As part of a comprehensive plan to reduce the hazards of
lead-based paint in the national residential housing stock, the
RLPHRA provided the statutory framework to require the disclosure
of information concerning lead hazards upon the transfer of
residential property. § 4852d. It is this "disclosure provision"
that is the subject of the case before us today.
The disclosure provision of the RLPHRA directs the
Secretary of the Department of Housing and Urban Development
("HUD") and the Administrator of the Environmental Protection
Agency ("EPA") to "promulgate regulations . . . for the disclosure
of lead-based paint hazards in target housing which is offered for
sale or lease." § 4852d(a)(1).5 The statute goes on to state:
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 . . . ;
5
"Target housing" is defined in the RLPHRA as "any housing
constructed prior to 1978," with a few limited exclusions.
§ 4851b(27).
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(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
(C) permit the purchaser a 10-day period . . . to conduct
a risk assessment or inspection for the presence of lead-
based paint hazards.6
§ 4852d(a)(1).
The statute also provides for an array of penalties for
violations of the disclosure provision including a civil liability
remedy which 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." § 4852d(b)(3). The HUD and
the EPA have jointly promulgated regulations implementing Section
4852d, and have defined lessee to mean "any entity that enters into
an agreement to lease, rent, or sublease target housing, including
but not limited to individuals, partnerships, corporations, trusts,
government agencies, housing agencies, Indian tribes, and nonprofit
organizations." 40 C.F.R. § 745.103; 24 C.F.R. § 35.86. The issue
we must decide is whether Congress intended for the minor children
of lessees to have standing to enforce this civil liability
provision against landlords who violate the disclosure provision.
B. Our Review of the Statute
In our review of § 4852d(b)(3), we must first ask whether
it is clear that Congress intended either to limit the term
6
The ten-day inspection period is only for purchasers of
target housing and does not apply to lessees of target housing.
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"lessee" to a party who legally enters into a lease with a lessor
or to permit the minor children who reside with the lessee to
enforce the disclosure provision. See Bryson v. Shumway, 308 F.3d
79, 84 (1st Cir. 2002) ("If the meaning of a statute is clear, we
enforce that meaning."). 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. See Gladysz v. Desmarais,
No. Civ. 02-208-B, 2003 WL 1343033, at *2 (D.N.H. March 17, 2003)
(unpublished) ("The civil liability provision in RLPHRA is within
the 'disclosure' section and as such, it is both logical and
reasonable to read the civil liability to cover only purchasers or
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lessees who were deprived of the required notice of lead hazards
'upon the transfer of residential property.'"). Although it
appears that we are the first circuit court of appeals to address
this issue, district courts have similarly found that the plain
meaning of § 4852d(b)(3) limits recovery to a "purchaser or lessee"
to the exclusion of minor children of a lessee. See id. at *3
(holding that grandchildren of lessee residing in home with lead-
based paint hazards did not have standing to sue landlord because
§ 4852d(b)(3) clearly limits recovery to a 'purchaser or lessee');
L.B. III v. Hous. Auth. of Louisville, 345 F. Supp. 2d 725, 729
(W.D. Ky. 2004) (minor children of lessees "fail to fit the
statutory [standing] requirement because they were neither
purchasers nor lessees of the property in which they lived").7
7
The Appellants cite Sipes v. Russell, 89 F. Supp. 2d 1199
(D. Ks. 2000) as evidence that at least one district court has held
that the minor children of a lessee have standing to pursue a claim
under § 4852(b)(3). In that case, the United States District Court
for the District of Kansas held that although it did have subject
matter jurisdiction over the plaintiffs' RLPHRA claims, the
regulations implementing the disclosure provision of the RLPHRA did
not take effect until after the plaintiffs entered into their lease
with the defendant. Therefore, the plaintiffs could not recover
under § 4852(b)(3). At no point did the court state that the minor
children had standing to pursue a claim under § 4852(b)(3), and
contrary to Appellants' argument, a finding of subject matter
jurisdiction does not imply that a party has standing to bring a
claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
89 (1998); Cooperman v. Individual, Inc., 171 F.3d 43, 47 n.3 (1st
Cir. 1999).
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C. The HUD/EPA Regulation and Legislative History
Having determined that Congress' intent to limit recovery
under § 4852d(b)(3) to a "purchaser or lessee" is clear from a
plain reading of the statute, it is not necessary for us to consult
either the HUD/EPA regulation defining lessee or the legislative
history of the RLPHRA. See Bryson, 308 F.3d at 85 (If a "statute
is unambiguous, we use neither legislative history, nor
administrative agency interpretation.") (internal citations
omitted). We briefly discuss both, however, because we do not find
that our interpretation of the statute is in conflict with either.
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 have standing under Section 4852(b)(3), and the
Appellants do not have standing under either the regulation or the
statute.
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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.
III. CONCLUSION
For the above-mentioned reasons, the district court's
grant of the Appellees' motion to dismiss is AFFIRMED.
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