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Rosemere Neighborhood Ass'n v. EPA

ELR Citation: 39 ELR 20213
Nos. No. 08-35045, (9th Cir., 09/17/2009)

The Ninth Circuit reversed and remanded a lower court decision dismissing a neighborhood association's APA action seeking to compel EPA's Office of Civil Rights (OCR) to act on their complaint that a city failed to properly use EPA funds to address lingering environmental problems in low-income and minority communities. The association filed their administrative complaint in 2003, but it wasn't until 2005—after the association filed its APA lawsuit against the OCR—that the OCR acted on, and rejected, the administrative complaint. The lower court then granted the OCR's motion to dismiss the association's APA action. On appeal, the OCR argued that because the association has no pending complaints before the Agency, the prospect of further delay is merely speculative. To defeat mootness, the OCR further argued, the association must show to a "certainty" that it will file another complaint. But the burden is on the OCR to show that there is "very little chance" of further delays in the processing of the complaints or that the association faces an "insurmountable" hurdle to filing another complaint. The OCR has done neither. What the lower court initially classified as an "isolated instance of untimeliness" has since bloomed into a consistent pattern of delay by the OCR. The association has twice encountered that pattern whereby it files a complaint, hears nothing for months, and then only after filing a lawsuit does the Agency respond. This litigation history is probative of the likelihood of future delays.