America Unites for Kids v. Sylvia Rousseau ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICA UNITES FOR KIDS; PUBLIC No. 16-56390
EMPLOYEES FOR ENVIRONMENTAL
RESPONSIBILITY, D.C. No.
Plaintiffs-Appellants, 2:15-cv-02124-
PA-AJW
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.
2 AMERICA UNITES FOR KIDS V. ROUSSEAU
AMERICA UNITES FOR KIDS; PUBLIC No. 19-55088
EMPLOYEES FOR ENVIRONMENTAL
RESPONSIBILITY, D.C. No.
Plaintiffs-Appellants, 2:15-cv-02124-
PA-AJW
v.
BEN DRATI, Superintendent Of The OPINION
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.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted December 11, 2019
Pasadena, California
Filed January 22, 2021
Before: Diarmuid F. O’Scannlain and Richard A. Paez,
Circuit Judges, and Michael H. Simon, * District Judge.
*
The Honorable Michael H. Simon, United States District Judge for
the District of Oregon, sitting by designation.
AMERICA UNITES FOR KIDS V. ROUSSEAU 3
Opinion by Judge Simon;
Partial Concurrence and Partial Dissent by
Judge O’Scannlain
SUMMARY **
Environmental Law
In a citizens’ suit under the Toxic Substances Control
Act, the panel vacated the district court’s order sanctioning
plaintiffs; reversed the district court’s dismissal of a plaintiff
for lack of standing; affirmed in part the district court’s
amended judgment and permanent injunction; and
remanded.
America Unites for Kids and Public Employees for
Environmental Responsibility (“PEER”) sued
administrators and board members of the Santa Monica
Malibu Unified School District, seeking remediation of
school buildings containing polychlorinated biphenyls
(PCBs). After a bench trial in 2016, the district court entered
judgment in favor of America Unites, dismissed PEER for
lack of standing, issued a permanent injunction against
defendants, and imposed sanctions against both plaintiffs
under the court’s inherent authority. In 2018, the district
court modified the permanent injunction.
In Part I of its opinion, the panel vacated the sanctions
order in light of the Supreme Court’s subsequent decision in
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 AMERICA UNITES FOR KIDS V. ROUSSEAU
Goodyear Tire & Robber Co. v. Haeger, 137 S. Ct. 1178(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. The first sanction imposed
by the district court precluded plaintiffs from using in this or
any future action the evidence obtained through their
unauthorized testing of materials taken from school
buildings without permission. The panel ruled that, on
remand, if the district court intends to reimpose an issue
preclusion sanction, it must explain how such a sanction is
compensatory rather than punitive and satisfies the “but for”
standard directed in Goodyear, requiring a showing that but
for the sanctionable misconduct, there would not be any
harm warranting compensatory relief. The panel held that
the district court abused its discretion in finding bad faith
and imposing sanctions based on the testing plaintiffs
performed before filing this lawsuit. The panel also vacated
sanctions requiring payment for repair of damage caused by
the unauthorized testing and payment of defendants’
attorneys’ fees incurred in preparing defendants’ motion for
sanctions. The panel concluded that a sanction striking
plaintiffs’ prayer for attorneys’ fees under TSCA’s fee-
shifting provision was punitive rather than compensatory
and thus required criminal procedural safeguards not
provided by the district court. Further, even if this sanction
was in part compensatory, the district court failed to comply
with Goodyear’s framework because it did not apply the but-
for standard of causation. The panel held that a prohibition
of further sampling was a discovery order rather than a
sanction and was within the district court’s discretion. A
sixth sanction, ordering plaintiffs’ officers to file certain
declarations regarding unauthorized testing, also was in part
a discovery order rather than a sanction. The panel
concluded that a section of this sanction limiting plaintiffs’
AMERICA UNITES FOR KIDS V. ROUSSEAU 5
advocacy implicated First Amendment considerations,
which it left for the district court to resolve on remand.
In Part II, the panel reversed the district court’s dismissal
for lack of standing of PEER, a non-membership
organization serving public employees concerned about
exposure to environmental risk at work. The panel
concluded that PEER had associational standing because the
close connection between its mission and the interests of its
non-member teachers was enough to give it a personal stake
in the outcome of this lawsuit.
In Part III, the panel affirmed the district court’s partial
modification of the permanent injunction under Fed. R. Civ.
P. 60(b)(5) following the passage of a bond measure and
other significantly changed circumstances. The panel held
that the district court did not abuse its discretion in finding
that the requirements in the 2016 permanent injunction that
the School District remediate all pre-1979 buildings by the
end of 2019 were no longer equitable based on a likelihood
that buildings would be demolished and rebuilt.
In Part IV, the panel denied plaintiffs’ request for judicial
notice of a document never presented to the district court.
Judge O’Scannlain concurred in Parts III and IV of the
majority’s opinion and dissented from Parts I and II, which
reversed the district court’s orders imposing sanctions and
dismissing PEER for lack of standing. Judge O’Scannlain
wrote that the Goodyear framework did not apply to the
district court’s denial of attorneys’ fees, and this denial was
a proper exercise of the district court’s discretion under
TSCA. Further, the remaining sanctions were not properly
challenged by plaintiffs in this appeal because, as plaintiffs
conceded, the first three sanctions were moot and no longer
6 AMERICA UNITES FOR KIDS V. ROUSSEAU
disputed by the parties, and the only arguments raised with
respect to the fifth and sixth sanctions were based on the
First Amendment, which the majority declined to address.
As to standing, Judge O’Scannlain wrote that PEER failed
to provide evidence from which to infer that it was
effectively an association or that a teacher who supported the
organization was the functional equivalent of a member.
COUNSEL
Paula Dinerstein (argued), Public Employees for
Environmental Responsibility, Silver Spring, Maryland;
Charles Avrith, Browne George Ross LLP, Los Angeles,
California; Lawrence Herbert Nagler (argued), Nagler &
Associates, Santa Monica, California; for Plaintiffs-
Appellants.
Kevin M. Fong (argued), Pillsbury Winthrop Shaw Pittman
LLP, San Francisco, California; Mark E. Elliott and
Stephanie Amaru, Pillsbury Winthrop Shaw Pittman LLP,
Los Angeles, California; for Defendants-Appellees.
AMERICA UNITES FOR KIDS V. ROUSSEAU 7
OPINION
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
8 AMERICA UNITES FOR KIDS V. ROUSSEAU
entered its 2016 judgment and permanent injunction. In
2017, the Supreme Court decided Goodyear Tire & Rubber
Co. v. Haeger, 137 S. Ct. 1178 (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
1
See generally Lu v. United States, 921 F.3d 850, 858 (9th Cir.
2019) (noting that “Goodyear shed a new light on the framework for
awarding attorneys’ fees as sanctions”); see also Jeffrey C. Dobbins, The
Inherent and Supervisory Power, 54 Ga. L. Rev. 411, 437 n.115 (2020)
(“The Goodyear case is a somewhat surprising limitation on the scope
of inherent authority in the absence of statutory or rule-based limits.”).
2
Under the TSCA, beginning in 1978, “no person may . . . use any
polychlorinated biphenyl in any manner other than in a totally enclosed
manner.” 15 U.S.C. § 2605(e)(2)(A). The TSCA, however, allows the
EPA Administrator to issue rules authorizing the use of PCBs “other than
in a totally enclosed manner if the Administrator finds that such . . . use
AMERICA UNITES FOR KIDS V. ROUSSEAU 9
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
. . . will not present an unreasonable risk of injury to health or the
environment.” 15 U.S.C. § 2605(e)(2)(B). The EPA has concluded that
items “with PCB concentrations of 50 ppm [parts per million] or greater
present an unreasonable risk of injury to health within the United States.”
40 C.F.R. § 761.20. The EPA also has directed that “[n]o persons may
use any PCB, or any PCB Item regardless of concentration, in any
manner other than in a totally enclosed manner . . . .” 40 C.F.R.
§ 761.20(a).
10 AMERICA UNITES FOR KIDS V. ROUSSEAU
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
3
Before 1978, large quantities of PCBs were used to enhance
pliability in various products. Construction materials manufactured with
PCBs included caulk, adhesives, and paint. Caulk containing PCBs was
widely installed in public buildings, including schools.
AMERICA UNITES FOR KIDS V. ROUSSEAU 11
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
12 AMERICA UNITES FOR KIDS V. ROUSSEAU
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, again entered the Malibu
Campus and took another sample on September 21, also
without the School District’s knowledge or permission.
In denying Plaintiffs’ motion for reconsideration, the
district court stated:
The EPA has far more expertise in this area
than does the Court, and is in a much better
position to balance the significant costs of
requiring school districts throughout the
country to test and remove PCB-containing
AMERICA UNITES FOR KIDS V. ROUSSEAU 13
caulk and other building materials against the
potential health risks of leaving those
products in place until school buildings
undergo planned renovations or demolitions.
To allow the testing of caulk without air and
surface wipe testing first showing levels of
PCBs in excess of the EPA’s health-based
screening levels would expose schools to
extraordinarily costly, and what the EPA has
deemed unnecessary, testing and remediation
expenses.
On Friday, October 9, ten days after the district court
issued its ruling denying Plaintiffs’ motion for
reconsideration, DeNicola again entered the Malibu Campus
without authorization and again collected samples of caulk
and other building materials; she was accompanied by an
unidentified man. A School District employee, speech
pathologist Emily Huffman, observed DeNicola’s actions,
including DeNicola entering a classroom. Both DeNicola
and the man who accompanied her carried box cutters and
resealable bags. Huffman saw DeNicola and the man cut
material from around the bottom of an interior window
frame in a classroom; Huffman also saw them remove
material from around another window frame in an adjoining
classroom. Upon being discovered, DeNicola told Huffman
about this lawsuit and asked her not to inform the school’s
principal about the presence of DeNicolo and the man who
was with her or what they were doing.
After learning of DeNicola’s activities, the School
District reported her actions to the Los Angeles County
Sheriff’s Department, asserting that some of the testing
disturbed areas that the School District’s environmental
consultant had recently remediated and that the damage
14 AMERICA UNITES FOR KIDS V. ROUSSEAU
caused by DeNicola’s unauthorized testing may cost
between $90,000 and $120,000 to repair. After investigating,
the Los Angeles County District Attorney’s Office declined
to prosecute for felony vandalism or trespassing. In
explaining the decision not to bring any charges, a Deputy
District Attorney stated that
he strongly believed the element of
“maliciously” damages or destroys property
was not present as required by [Cal. Penal
Code] 594(a)(2)(3). [DeNicola] and her
husband were not “maliciously” damaging
property, rather they were attempting to
determine how many PCBs were in the
molding, etc. This is clearly evidenced by the
fact that they sent the samples to my office’s
Environmental Crimes Division, coupled
with the fact that the molding had 30% PCB’s
(if I recall correctly). Also, extent of damage
was unclear and did not appear to meet the
required $400 threshold, although the school
district claimed approximately $17,000 (or
more) in damages.
Along with reporting Plaintiffs’ conduct to local law
enforcement, Defendants filed a motion with the district
court, asking for terminating sanctions against both AU and
PEER, or such lesser sanctions as the court may deem
appropriate. Defendants based their motion on both Rule 37
of the Federal Rules of Civil Procedure and the district
court’s inherent powers and authority. On December 21,
2015, the district court entered an order sanctioning
Plaintiffs.
AMERICA UNITES FOR KIDS V. ROUSSEAU 15
In awarding sanctions, the district court noted that
Rule 37(b)(2)(A) authorizes a court to sanction a party that
“fails to obey an order to provide or permit discovery.” The
district court added that the Ninth Circuit “has foreclosed the
application of Rule 37 sanctions . . . where a party’s alleged
discovery-related misconduct is not encompassed by the
language of the rule.” Unigard Sec. Ins. Co. v. Lakewood
Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992). The
district court concluded that “Rule 37 does not authorize the
issuance of sanctions in circumstances such as these, where
a party has not violated an order requiring it to provide or
permit discovery, but has obtained evidence without
utilizing one of the methods for obtaining discovery
contemplated by the Federal Rules of Civil Procedure.”
The district court next considered Plaintiffs’ conduct
under the district court’s inherent powers and authority,
explaining that parties are “subject to sanctions, including
dismissal, when they acquire evidence in an illegal or
otherwise wrongful manner.” The court noted that if
Plaintiffs did not need to use the procedures of Rule 34 to
conduct testing of building materials at the Malibu Campus,
then Plaintiffs’ application for expedited discovery, motion
to compel, and motion for reconsideration all would have
been unnecessary. The district court added that courts
“readily distinguish between evidence acquired legitimately
outside of discovery procedures and wrongfully acquired
evidence.” The district court found that “Plaintiffs
understood that the Court’s order denying the Rule 34
inspection they sought, and phasing discovery so that
destructive testing could only occur once air and surface
wipe testing established its necessity, prevented Plaintiffs
from conducting the discovery that they believed was
necessary[.]” The court added that DeNicola’s efforts to
conceal her activities by asking an employee of the School
16 AMERICA UNITES FOR KIDS V. ROUSSEAU
District not to report DeNicola’s actions establish that
DeNicola knew that her conduct was wrongful, and this
“constituted or was tantamount to bad faith.”
The district court also explained that by filing suit
and implicitly agreeing to resolve their
dispute in this forum, Plaintiffs agreed to be
bound by this Court’s procedures and rulings.
Their resort to “self-help” subverts the
Court’s orders and the orderly administration
of justice. Additionally, by wrongfully
acquiring evidence and presenting that
evidence to the [School] District, the EPA,
and Congressman Lieu, Plaintiffs have
attempted to obtain the relief they seek in this
action in a manner that conflicts with how the
Court had ordered that this action proceed.
The court also stated that the unauthorized testing
constituted “willful violations of the Court’s orders and,
even without reference to the Court’s orders, is an affront to
the judicial process.” The district court held that “this
repeated intentional conduct, committed despite this Court’s
repeated orders prohibiting the testing that DeNicola and
Brenton Brown conducted, establishes by clear and
convincing evidence the willful and bad faith conduct
necessary for the imposition of sanctions under the Court’s
inherent power.”
The district court declined to impose terminating
sanctions, finding that less drastic sanctions were available.
At the same time, the court declined to limit sanctions only
to precluding Plaintiffs from using their “ill-gotten evidence
in this action,” because that result would “not properly deter
Plaintiffs and other litigants from engaging in such conduct.”
AMERICA UNITES FOR KIDS V. ROUSSEAU 17
Instead, the district court imposed six separate and distinct
sanctions on Plaintiffs.
First, the district court precluded Plaintiffs from using in
this action and in any future litigation any evidence obtained
through their “unauthorized testing.” Second, the court
ordered AU and DeNicola, jointly and severally, to pay the
School District’s reasonable costs necessary to repair the
physical damage to the Malibu Campus caused by the
unauthorized testing. Third, the court directed Plaintiffs to
pay Defendants’ reasonable attorneys’ fees incurred in
preparing Defendants’ motion for sanctions. Fourth, to
“deter Plaintiffs and other parties from engaging in similar
conduct in the future,” the Court struck Plaintiffs’ prayer for
attorneys’ fees, expert witness fees, and costs, which
Plaintiffs otherwise likely would have been allowed under
15 U.S.C. § 2619(c). 4 Fifth, the court ordered Plaintiffs and
their officers, directors, members, supporters, employees,
and anyone acting in concert with them, to cease any further
efforts to sample or test caulk at the Malibu Campus, except
with the express authorization of the court. And sixth, the
court ordered Plaintiffs to file declarations confirming,
among other things, that they will not “advocate or suggest
that others engage in unauthorized testing.” The district
court also found that “[a]lthough PEER did not directly
participate in the unauthorized testing, they did attempt to
benefit from it by jointly submitting that evidence to the
[School] District, the EPA, and Congressman Lieu.” Based
on this finding, the district court did not order PEER to
4
Defendants did not ask the district court to impose this sanction of
denying Plaintiffs’ prevailing attorneys’ fees, expert witness fees, and
costs. Indeed, Plaintiffs had no notice that the district court was even
considering this sanction until after the district court entered the
sanctions order.
18 AMERICA UNITES FOR KIDS V. ROUSSEAU
compensate the School District for any physical damage
caused by the unauthorized testing, but it did subject PEER
to the other sanctions.
On the merits of the lawsuit, the district court conducted
a court trial on May 17, 2016. On September 1, 2016, the
court issued findings of fact and conclusions of law as well
as a judgment and permanent injunction. The court
dismissed PEER for lack of standing and entered judgment
in favor of AU against Defendants. The district court
permanently enjoined the School District after
December 31, 2019 from using any office, classroom, or
other structure on the Malibu Campus built before 1979 in
which students, teachers, administrators, or staff are often
present, unless “all window and door systems and
surrounding caulk at any such location has been replaced.”
Consistent with the court’s sanctions order dated December
21, 2015, the court ordered each party to bear its own costs
and attorneys’ fees.
As for PEER’s standing, the district court explained that
PEER submitted a declaration from Katy Lapajne, a self-
described “supporter” of PEER and AU and a teacher at
MMHS, who was concerned about the effects of PCB
exposure on her health. PEER also submitted its Articles of
Incorporation and Bylaws. The court, however, ruled that
PEER’s Articles and Bylaws “were not properly introduced
or authenticated through any witness testimony” and
sustained Defendants’ evidentiary objections to those
documents. The court then held that Lapajne’s declaration
by itself did not establish PEER’s organizational or
associational standing.
On November 6, 2018, more than two years after the
district court entered the permanent injunction, voters passed
a $195 million General Obligation Bond, referred to as
AMERICA UNITES FOR KIDS V. ROUSSEAU 19
“Measure M,” to pay for the modernization, demolition, and
reconstruction of the Malibu Campus. The School District
expected this funding to lead to the demolition of many
buildings that the 2016 permanent injunction required the
School District to remediate by the end of 2019, although the
demolition and reconstruction work was not expected to be
completed until the end of 2024. The School District
estimated that removal of caulking in the pre-1979 buildings
under the 2016 injunction would cost between $3.9 and
$5.2 million, although the School District did not give an
estimate for alternative measures, such as moving students
to portable classrooms while the demolition and
reconstruction process went forward.
By mid-November 2018, the School District also had
performed representative sampling of window and door
systems subject to the 2016 permanent injunction. That
sampling revealed that the TSCA violations existed in fewer
window and door systems than the parties and the district
court had previously assumed. The School District also
discovered unlawful levels of PCBs in flooring, shellac, and
ventilation systems that had not previously been known and,
thus, were not addressed in the district court’s 2016
permanent injunction.
On November 19, 2018, Defendants filed a motion for
partial modification of the 2016 permanent injunction. On
December 20, 2018, the district court granted that motion
and issued an amended judgment and permanent injunction.
The district court found that the requirements in the 2016
permanent injunction that the School District remediate all
pre-1979 buildings by the end of 2019 were no longer
equitable based on the likelihood that the Malibu Campus
buildings would be demolished and rebuilt. The amended
permanent injunction gave the School District a five-year
20 AMERICA UNITES FOR KIDS V. ROUSSEAU
extension, until the end of 2024, to cease using all pre-1979
buildings unless the School District removed all caulking
and building materials with PCBs greater than 50 ppm. The
court also required the School District to mitigate the harm
of continued use of the pre-1979 buildings by caulking over
existing caulk, painting over plywood walls with PCBs
levels more than 50 ppm, inspecting the flooring in all rooms
with tiling containing PCBs and patching or replacing
broken or missing tiles, performing air and wipe testing, and
transferring students and staff to new buildings as they
became available. The district court found that the
requirements of the modified injunction would be “more
protective of the health of the students, faculty, and staff than
would otherwise be provided under the current Judgment
and Permanent Injunction.”
The district court also found that the new evidence
rendered the 2016 injunction unsuitable because it would
require “the replacement of window and door systems in
buildings that are likely to be demolished within the next
several years that do not pose a health risk, while doing little
to minimize exposure from other newly-discovered sources
of PCBs.” The 2016 injunction also did not require
remediation of the newly discovered areas containing PCBs,
which the district court addressed in the 2018 amended
judgment and permanent injunction. The district court found
that “the passage of Measure M, the subsequent testing
results, and the existence of cheaper alternative measures
that will more effectively protect public health are sufficient
changed circumstances to justify modification of the Court’s
Judgment and Permanent Injunction.”
AMERICA UNITES FOR KIDS V. ROUSSEAU 21
STANDARDS
We review a district court’s imposition of sanctions
under its inherent powers for abuse of discretion. Chambers
v. NASCO, Inc., 501 U.S. 32, 55 (1991); Jorgensen v.
Cassiday, 320 F.3d 906, 912 (9th Cir. 2003). We also give
“great deference” to a district court’s factual findings
underlying a sanctions order. Evon v. Law Offices of Sidney
Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012) (quoting F.J.
Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d
1128, 1136 (9th Cir. 2001)). Those findings may not be set
aside unless they are clearly erroneous. Anheuser-Busch,
Inc. v. Nat. Beverage Distribs., 69 F.3d 337, 348 (9th Cir.
1995). We review de novo, however, any legal analysis by
the district court in imposing sanctions. NRDC v. Winter,
543 F.3d 1152, 1157 (9th Cir. 2008).
We also review de novo First Amendment issues, such
as those raised here. U.S. Dist. Ct. v. Sandlin, 12 F.3d 861,
865 (9th Cir. 1993) (“In cases . . . raising First Amendment
issues, an appellate court has an obligation to make an
independent examination of the whole record in order to
make sure that the judgment does not constitute a forbidden
intrusion on the field of free expression.” (cleaned up)). And
we review de novo questions of standing. San Diego Cnty.
Gun Rights Comm. v. Reno, 98 F.3d 1121, 1124 (9th Cir.
1996). Finally, we review for abuse of discretion a district
court’s modification of a permanent injunction under
Rule 60(b)(5) of the Federal Rules of Civil Procedure.
Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 263 n. 7
(1978).
22 AMERICA UNITES FOR KIDS V. ROUSSEAU
DISCUSSION
I. District Court’s Order of Sanctions
A. Framework for Imposing Sanctions under
Inherent Authority
“Federal courts possess certain ‘inherent powers,’ not
conferred by rule or statute, ‘to manage their own affairs so
as to achieve the orderly and expeditious disposition of
cases.’” Goodyear, 137 S. Ct. at 1186 (quoting Link v.
Wabash R. Co., 370 U.S. 626, 630–31 (1962)). “That
authority includes ‘the ability to fashion an appropriate
sanction for conduct which abuses the judicial process.’” Id.(quoting Chambers, 501 U.S. at 44–45). This power includes
the ability to punish conduct before the court as well as
actions beyond the court’s confines, regardless of whether
that conduct interfered with courtroom proceedings. See
Chambers, 501 U.S. at 44; F.J. Hanshaw, 244 F.3d at 1136;
see also Dobbins, supra note 1, at 422 (“This power is often
described as ‘supervisory’ power over the parties and actors
within the jurisdiction of a particular court.”). Also, “[t]he
power of a court over members of its bar is at least as great
as its authority over litigants.” Roadway Exp., Inc. v. Piper,
447 U.S. 752, 766 (1980).
A district court may, among other things, dismiss a case
in its entirety, bar witnesses, exclude other evidence, award
attorneys’ fees, or assess fines. F.J. Hanshaw, 244 F.3d
at 1136. Although it is preferable that courts use—and first
consider—the range of federal rules and statutes dealing
with misconduct and abuse of the judicial system, “courts
may rely upon their inherent powers to sanction bad-faith
conduct even where such statutes and rules are in place.” Id.at 1136–37; see also Chambers, 501 U.S. at 50 (“[W]hen
there is bad-faith conduct in the course of litigation that
AMERICA UNITES FOR KIDS V. ROUSSEAU 23
could be adequately sanctioned under the Rules, the court
ordinarily should rely on the Rules rather than the inherent
power. But if in the informed discretion of the court, neither
the statute nor the Rules are up to the task, the court may
safely rely on its inherent power.”). “Because of their very
potency, inherent powers must be exercised with restraint
and discretion.” Chambers, 501 U.S. at 44.
“To protect against abuse and to ensure parties receive
due process, individuals subject to sanction are afforded
procedural protections, the nature of which varies depending
upon the violation, and the type and magnitude of the
sanction.” F.J. Hanshaw, 244 F.3d at 1137. “The more
punitive the nature of the sanction, the greater the protection
to which an individual is entitled.” Id. Thus, when a court is
considering using its inherent authority to impose sanctions,
the first step is to determine whether the potential sanctions
that may be imposed are compensatory, punitive, or both.
The answer to this question will affect both the procedural
requirements and the substantive limitations that apply. To
use a simplistic analogy, a district court must first determine
whether the party commencing a legal action is seeking a
civil (compensatory) remedy or a criminal (punitive)
outcome so that the correct procedural requirements and
substantive limitations can be correctly applied. 5
The Supreme Court has explained that when strictly
compensatory or remedial sanctions are sought, civil
procedures, rather than criminal-type procedures, may be
applied. See Int’l Union, United Mine Workers of Am. v.
Bagwell, 512 U.S. 821, 826–830 (1994). Thus, when only
civil procedures are used, the sanction may go no further
5
A civil case seeking both compensatory and punitive damages
presents a hybrid situation.
24 AMERICA UNITES FOR KIDS V. ROUSSEAU
than to redress the wronged party “for losses sustained” and
may not impose any additional consequence as punishment
for the sanctioned party’s misbehavior. Id. at 829 (quoting
United States v. Mine Workers, 330 U.S. 258, 304 (1947)).
As clarified by the Supreme Court in Goodyear, when a
sanction is imposed under a court’s inherent authority as a
penalty or to punish someone, “a court would need to
provide procedural guarantees applicable in criminal cases,
such as a ‘beyond a reasonable doubt’ standard of proof.”
Goodyear, 137 S. Ct. at 1186.
We have previously compared punitive sanctions
“intended to vindicate the court’s authority and the integrity
of the judicial process” to criminal penalties for contempt.
See F.J. Hanshaw, 244 F.3d at 1138. In those circumstances,
“the contemnor must be afforded the full protection of a
criminal jury trial,” including the right to be advised of the
charges, the right to a disinterested prosecutor, the right to
assistance of counsel, a presumption of innocence, proof
beyond a reasonable doubt, the privilege against self-
incrimination, the right to cross-examine witnesses, the
opportunity to present a defense and call witnesses, and the
right to a jury trial if the fine or sentence imposed will be
serious. Id. at 1138–39; see also Lu, 921 F.3d at 860 ( stating
that “‘non-compensatory sanctions’ may be ‘akin to criminal
contempt and may be imposed only by following the
procedures applicable to criminal cases, including
appointment of an independent prosecutor, proof beyond a
reasonable doubt and a jury trial’” (quoting Miller v. City of
Los Angeles, 661 F.3d 1024, 1030 (9th Cir. 2011))).
If, however, sanctions are strictly limited to
compensatory or remedial measures, these criminal-type
protections are not required. Further, as the Supreme Court
explained, “[c]ompensation for a wrong . . . tracks the loss
AMERICA UNITES FOR KIDS V. ROUSSEAU 25
resulting from that wrong.” Goodyear, 137 S. Ct. at 1186.
Thus, “a sanction counts as compensatory only if it is
calibrated to the damages caused” by the sanctionable
conduct on which it is based. Id. (cleaned up). Moreover, a
district court acting under its inherent authority to impose
compensatory sanctions must apply a “but-for” causation
standard. Id. at 1187. In other words, but for the sanctionable
misconduct, would there be any harm warranting
compensatory relief? If so, a sanction might be available but
must be limited to compensating for the specific harm. If not,
the sanction would appear to be punitive.
When acting under its inherent authority to impose a
sanction, as opposed to applying a rule or statute, a district
court must find either: (1) a willful violation of a court order;
or (2) bad faith. See Evon, 688 F.3d at 1035. As the Supreme
Court has explained, a sanction may be awarded either for
willful disobedience of a court order or when a party has
acted in bad faith, vexatiously, wantonly, or for oppressive
reasons. See Roadway Exp., 447 U.S. at 766; Fink v. Gomez,
239 F.3d 989, 991 (9th Cir. 2001).
“A determination that a party was willfully disobedient
is different from a finding that a party acted in bad faith.
Either supports the imposition of sanctions.” Evon, 688 F.3d
at 1035. Further, “a ‘willful’ violation of a court order does
not require proof of mental intent such as bad faith or an
improper motive, but rather, it is enough that a party acted
deliberately.” Id.
On the other hand, bad faith, including conduct done
vexatiously, wantonly, or for oppressive reasons, requires
proof of bad intent or improper purpose. See Evon, 688 F.3d
at 1035; Fink, 239 F.3d at 993–94. Bad faith also is not
restricted to situations where the action was filed in bad
faith. Bad faith may also be found in the conduct of the
26 AMERICA UNITES FOR KIDS V. ROUSSEAU
litigation. See Roadway Exp., 447 U.S. at 766. Finally,
because a district court’s inherent powers are so potent, we
require that when a court imposes sanctions based on bad
faith, the court must make an explicit finding that the
sanctioned party’s conduct “constituted or was tantamount
to bad faith.” See Primus Auto. Fin. Servs., Inc. v. Batarse,
115 F.3d 644, 648–50 (9th Cir. 1997) (quoting Roadway
Exp., 447 U.S. at 767).
B. Application of Framework to Each Sanction
Imposed 6
1. Evidence preclusion and prospective issue
preclusion
The first sanction imposed by the district court precluded
Plaintiffs “from using in this action the evidence obtained
through their unauthorized testing.” The district court added:
6
In vacating the sanctions order in its entirety, we express no views
on whether Plaintiffs’ conduct was sufficient to establish bad faith or
willful violation of a court order. See Evon, 688 F.3d at 1035; Roadway
Exp., 447 U.S. at 766. On remand, the district court should consider anew
the basis for the sanctions and make explicit its findings. See Evon,
688 F.3d at 1035 (explaining that sanctions under the court’s inherent
power can be imposed for “(1) willful violation of a court order; or
(2) bad faith” and that determining “a party was willfully disobedient is
different from a finding that a party acted in bad faith”). To that end, the
district court should specify the distinct actions warranting sanctions—
the collection of samples, testing of those samples, violation of a court
order, the distribution of the results to others, or other potential
misconduct. In the event the district court imposes the same or different
sanctions, the court’s findings will elucidate its application of the
Goodyear framework. See Goodyear, 137 S. Ct. at 1187 (explaining the
“causal connection” required for compensatory sanctions “is
appropriately framed as a but-for test” based on the party’s particular
misconduct).
AMERICA UNITES FOR KIDS V. ROUSSEAU 27
By “unauthorized testing,” the Court includes
all testing conducted by Plaintiffs and those
affiliated with them both before the initiation
of this action and any testing that has
occurred since the commencement of this
action that was conducted without the
permission of Defendants or authorized by
this Court. The Court further orders that this
is an issue preclusion sanction barring
Plaintiffs from using the facts obtained by
their unauthorized testing in this or any future
litigation.
The district court concluded its discussion of this sanction
by explaining that issue preclusion bars successive litigation
of an issue of fact or law actually litigated and resolved and
citing Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 592
(9th Cir. 1983), for the proposition that “a punitive dismissal
is equivalent to an adjudication on the merits.”
The district court’s decision precluding Plaintiffs from
using certain testing evidence in this case may be more
compensatory (or remedial) than punitive. The court’s
further decision ordering issue preclusion in future litigation,
however, appears to be punitive, especially considering the
court’s citation to Wyle and that decision’s reference to a
“punitive dismissal.” At a minimum, on remand, if the
district court intends to reimpose an issue preclusion
sanction, it must explain how such a sanction is
compensatory rather than punitive and satisfies the “but for”
standard directed in Goodyear.
In addition, even assuming without deciding that the
testing performed by Plaintiffs after filing this lawsuit was
conducted in bad faith, as the district court determined, there
28 AMERICA UNITES FOR KIDS V. ROUSSEAU
are insufficient grounds for concluding that Plaintiffs’
testing activities before the initiation of this action were done
in bad faith. As for any testing done before the start of this
lawsuit, there could be no abuse of or affront to judicial
process. Nor is there any evidence of bad intent or improper
purpose. At least to this extent, the district court abused its
discretion in imposing sanctions based on Plaintiffs’ testing
performed before Plaintiffs filed this lawsuit.
2. Physical damage caused by Plaintiffs’ conduct
The second sanction imposed by the district court
required AU and DeNicola, jointly and severally, to pay the
School District “the amount of money reasonably necessary
to repair the physical damage to the Malibu Campus caused
by the unauthorized testing.” This sanction appears to be
compensatory, rather than punitive. It also appears to satisfy
the “but for” test explained in Goodyear. The problem,
however, is with the district court’s use of the phrase
“unauthorized testing.”
The district court did not separately define that phrase in
discussing its second sanctions provision, so we assume that
the district court intended the same meaning that was used
in the first sanctions provision. As discussed above,
however, that includes testing activities performed before
the start of this action. For the same reasons discussed above,
there is no evidence that Plaintiff undertook any of these
prefiling testing actions in bad faith.
3. Defendants’ fees incurred in bringing
sanctions motion
The third sanction imposed by the district court directed
Plaintiffs to pay Defendants the reasonable attorneys’ fees
incurred by Defendants’ counsel in preparing Defendants’
AMERICA UNITES FOR KIDS V. ROUSSEAU 29
motion for sanctions. This sanction appears to be
compensatory. To the extent, however, that Defendants
sought any punitive sanctions in their motion, the district
court’s award of Defendants’ fees incurred in preparing their
motion may not satisfy Goodyear’s “but-for” causation
requirement. 7 On remand, the district court can evaluate this
issue.
4. Denial of Plaintiffs’ TSCA fees and costs
The fourth sanction imposed by the district court was
striking Plaintiffs’ prayer for attorneys’ fees, expert witness
fees, and costs under 15 U.S.C. § 2619(c). The district court
began its discussion of this sanction by stating that the
purpose of this sanction is “[t]o deter Plaintiffs and other
parties from engaging in similar conduct in the future.” Such
a deterrent rationale shows that this sanction is punitive,
rather than compensatory. See, e.g., 18 U.S.C.
§ 3553(a)(2)(B) (stating that deterrence is a factor to be
considered in determining an appropriate criminal sentence);
see also Richard S. Frase, Punishment Purposes, 58 Stan. L.
Rev. 67, 70 (2005) (discussing deterrence as one of the
purposes of punishment). Thus, criminal procedural
safeguards were required but not provided.
Further, even if the sanction imposed here was in part
compensatory, the district court failed to comply with
Goodyear’s framework because it did not apply the but-for
7
In Lu, we explained that, under Goodyear “[b]ecause the fee award
must be compensatory, rather than punitive, the award may go no further
than to redress the wronged party for losses sustained.” Lu, 921 F.3d
at 861 (internal quotation marks omitted). To the extent that Defendants’
motion seeks punitive sanctions, any award of Defendants’ fees for that
portion of their motion would violate Goodyear’s “but-for” causation
standard.
30 AMERICA UNITES FOR KIDS V. ROUSSEAU
standard of causation or “undertake the granular inquiry
indicated by that opinion, i.e., segregating individual
expense items or categories of such items and establishing
that they would not have been incurred except for”
Plaintiffs’ misconduct. See Lu, 921 F.3d at 862. The district
court’s order of sanctions provides no analysis of any
connection between any harm to Defendants caused by
Plaintiffs’ purported misconduct and the district court’s
decision to strike Plaintiffs’ prayer for fees and costs under
the TSCA.
Defendants, however, argue that Goodyear does not
apply. In Goodyear, the Supreme Court reversed a district
court’s sanction that required the defendant to pay all the
litigation costs incurred by the plaintiffs. The Supreme Court
explained that if that sanction was compensatory, the district
court was required to draw a causal connection between the
defendant’s bad faith discovery abuse and the fees awarded.
Goodyear, 137 S. Ct. at 1186. The Supreme Court remanded
so that the trial court could determine how much of the
plaintiffs’ litigation expenses would not have been incurred
but for the defendant’s sanctionable conduct. Id. at 1190.
Here, Defendants are correct that the sanction in
Goodyear was an order for the defendant to pay the
plaintiffs’ litigation expenses that the plaintiffs otherwise
would have had to bear under the American Rule. 8 The
sanction here, however, denied Plaintiffs’ recovery of any
prevailing party attorneys’ fees, expert witness fees, and
costs that Plaintiffs likely would have otherwise recovered
8
Under the American Rule, each party bears its own fees and costs
unless a statute or contract provides otherwise. See Peter v. Nantkwest,
Inc., 140 S. Ct. 365, 370 (2019).
AMERICA UNITES FOR KIDS V. ROUSSEAU 31
under the TSCA’s fee-shifting provision. 9 We view this as a
distinction without a difference.
In Goodyear, the district court changed the default
allocation of responsibility for litigation expenses. The
Supreme Court held that if the district court did that as
punishment for the sanctioned party’s misbehavior, the
procedural guarantees applicable in criminal cases were
required. See Goodyear, 137 S. Ct. at 1186. When such
safeguards are absent, “a court’s shifting of fees is limited to
reimbursing the victim.” Id. Similarly, the district court here
denied the benefit of the TSCA’s fee-shifting provision as
punishment for Plaintiffs’ conduct that the district court
found to be in bad faith and an affront to the judicial process.
That is a punitive sanction. See Bagwell, 512 U.S. at 827–28
(explaining that a contempt sanction may be punitive if it is
“to vindicate the authority of the court” (quoting Gompers v.
Bucks Stove & Range Co., 221 U.S. 418, 441 (1911)).
According to the Supreme Court, however, punitive
sanctions may be imposed only after certain procedural
guarantees applicable in criminal cases have been provided,
which did not occur here. See Goodyear, 137 S. Ct. at 1186.
Defendants also argue that this portion of the district
court’s sanctions order merely obligates Plaintiffs to pay
their own fees and costs incurred in the litigation, which is
the norm under the American Rule. The TSCA, however,
contains an explicit fee-shifting provision, which provides
9
In relevant part, the TSCA provides in citizens’ civil actions: “The
court . . . may award costs of suit and reasonable fees for attorneys and
expert witnesses if the court determines that such an award is
appropriate. Any court, in issuing its decision in an action brought to
review such an order, may award costs of suit and reasonable fees for
attorneys if the court determines that such an award is appropriate.”
15 U.S.C. § 2619(c)(2).
32 AMERICA UNITES FOR KIDS V. ROUSSEAU
for an award of “costs of suit and reasonable fees for
attorneys and expert witnesses if the court determines that
such an award is appropriate.” 15 U.S.C. § 2619(c)(2).
We have previously interpreted similar fee-shifting
provisions in other environmental statutes to allow a district
court the discretion to deny attorneys’ fees to a prevailing
plaintiff “only where there are ‘special circumstances.’”
Saint John’s Organic Farm v. Gem Cnty. Mosquito
Abatement Dist., 574 F.3d 1054, 1063 (9th Cir. 2009). 10
Under this standard, first articulated by the Supreme Court
in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400(1968), “the court’s discretion to deny a fee award to a
prevailing plaintiff is narrow, and a denial of fees on the
basis of ‘special circumstances’ is extremely rare.” Saint
John’s Organic Farm, 574 F.3d at 1064 (internal quotation
marks and citations omitted). There is no reason why this
standard under the Clean Water Act would not apply in a
case under the TSCA.
In Saint John’s Organic Farm, we explained the
rationale for such a strict limitation on the district court’s
discretion to deny a fee-shifting motion under the Clean
Water Act. Saint John’s Organic Farm, 574 F.3d at 1062. In
doing so, we relied on the Supreme Court’s discussion in
Piggie Park, which involved a claim under Title II of the
Civil Rights Act of 1964. In Saint John’s Organic Farm, we
quoted the following from Piggie Park:
10
In Saint John’s Organic Farm, we interpreted the fee-shifting
provision of the Clean Water Act, which provides that a court “may
award costs of litigation (including reasonable attorney and expert
witness fees) to any prevailing or substantially prevailing party,
whenever the court determines such award is appropriate.” 33 U.S.C.
§ 1365(d).
AMERICA UNITES FOR KIDS V. ROUSSEAU 33
When a plaintiff brings an action under that
Title, he cannot recover damages. If he
obtains an injunction, he does so not for
himself alone but also as a “private attorney
general,” vindicating a policy that Congress
considered of the highest priority. If
successful plaintiffs were routinely forced to
bear their own attorneys’ fees, few aggrieved
parties would be in a position to advance the
public interest by invoking the injunctive
power of the federal courts. Congress
therefore enacted the provision for counsel
fees – not simply to penalize litigants who
deliberately advance arguments they know to
be untenable but, more broadly, to encourage
individuals injured by racial discrimination to
seek judicial relief under Title II.
Saint John’s Organic Farm, 574 F.3d at 1062 (quoting
Piggie Park, 390 U.S. at 402).
We have found such “special circumstances” justifying
the denial of a fee-shifting motion only rarely, such as when
the plaintiff’s actions did not provide a social benefit. For
example, we declined to award attorneys’ fees to a prevailing
plaintiff when “counsel failed to provide the court with any
analysis of the central case, and thereby necessitated the
court to engage in independent research.” Bateson v. Geisse,
857 F.2d 1300, 1306 (9th Cir. 1988).
Defendants cite to the Eighth Circuit’s decision in Kuehl
v. Sellner to support its argument that “special
circumstances” exist here. 887 F.3d 845 (8th Cir. 2018). But
that case is distinguishable. In Kuehl, the Eighth Circuit held
that an award of attorney fees would have been inconsistent
34 AMERICA UNITES FOR KIDS V. ROUSSEAU
with the purpose of the Endangered Species Act (ESA),
which was at issue in that case. The court held that the
plaintiffs sought to use the ESA as “a weapon to close small,
privately owned zoos—a circumstance never discussed
during the Act’s passage.” Id. at 856. Kuehl is inapplicable
here because Plaintiffs’ requested remedy was entirely
consistent with the purpose of the TSCA. See, e.g.,
Physicians Comm. for Responsible Med. v. Johnson,
436 F.3d 326, 327 (2d Cir. 2006) (“Congress enacted TSCA
in 1976 with the express purpose of limiting the public health
and environmental risks associated with exposure to and
release of toxic chemical substances and mixtures.”). In this
appeal, we decline to decide whether Plaintiffs’ conduct
constitutes “special circumstances” sufficient to deny fee-
shifting under the TSCA. The district court may consider
that issue on remand in the event Plaintiffs file a motion for
attorneys’ fees under the TSCA and Defendants raise the
issue in response.
5. Prohibition of further sampling
The fifth “sanction” imposed by the district court ordered
Plaintiffs and their officers, directors, members, supporters,
employees, and anyone acting in concert with them to cease
any efforts to sample or test caulk, other building materials,
or any other item at the Malibu Campus, except with the
express authorization of the court. This order is neither a
compensatory sanction nor a punitive sanction; indeed, it is
not technically a sanction of any kind. Instead, it is merely
an order by the district court to manage discovery in a civil
lawsuit. Thus, it is within the district court’s discretion. See
Fed. R. Civ. P. 26(b)(2)(C) (allowing a district court to limit
the frequency or extent of discovery); Fed. R. Civ. P.
26(c)(1)(B) (allowing a district court to issue a protective
order specifying the terms for discovery). The district court
AMERICA UNITES FOR KIDS V. ROUSSEAU 35
did not abuse its discretion by ordering that no sampling or
testing of caulk, other building materials, or any other item
at the Malibu Campus be performed, except with the express
authorization of the court.
6. Prohibition on Advocating Unauthorized
Testing
The sixth “sanction” imposed by the district court
ordered Plaintiffs’ officers to file declarations confirming
that: (1) they understand that the court has ordered that no
further unauthorized testing be performed at the Malibu
Campus without express authorization from the court;
(2) Plaintiffs’ officers will comply with the court’s orders;
and (3) Plaintiffs and their officers will not participate in
unauthorized testing or “advocate or suggest that others
engage in unauthorized testing.” As with the fifth “sanction,”
the first clause, the second clause, and the first half of the
third clause of the sixth “sanction” are not technically
sanctions. Instead, they are merely orders by the district
court to ensure compliance with the district court’s
prospective order managing civil discovery. These
provisions are within the district court’s discretion. The
second half of the third clause, however, limits Plaintiffs’
advocacy, which implicates First Amendment
considerations.
Plaintiffs’ opening brief asserts without support or
analysis that this portion of the district court’s sanctions
order “unconstitutionally restricts their freedom of
expression.” Defendants respond that Plaintiffs waived this
issue both by failing to raise it in the district court and by
failing to discuss it in Plaintiffs’ opening brief beyond this
conclusory assertion. Neither side presents any case law
about the substance of this issue, and we decline to address
it as inadequately presented. See Dodd v. Hood River Cnty.,
36 AMERICA UNITES FOR KIDS V. ROUSSEAU
59 F.3d 852, 863 (9th Cir. 1995) (holding that we rarely
consider an issue not raised below); see also Cmty. House,
Inc. v. City of Boise, 490 F.3d 1041, 1053 (9th Cir. 2007)
(declining to consider a state constitutional claim presented
for the first time on appeal).
Plaintiffs also argue that the district court’s sanctions
order punished Plaintiffs’ First Amendment-protected
petitioning activity. Plaintiffs begin by noting the portion of
the district court’s order stating that “by wrongfully
acquiring evidence and presenting that evidence to the
School District, the EPA, and Congressman Lieu, Plaintiffs
have attempted to obtain the relief they seek in this action in
a manner that conflicts with how the Court had ordered that
this action proceed.” From this, Plaintiffs contend that in
presenting the testing results to the School District, the EPA,
and Congressman Lieu, they were merely exercising their
First Amendment-protected right to disseminate information
and petition the government for redress of grievances.
Defendants respond that the district court did not impose
sanctions to punish Plaintiffs for their First Amendment-
protected petitioning activity, but to punish them for
discovery abuse: the taking of caulking samples that
amounted to “unauthorized, wrongful, and criminal
gathering of evidence and the willful violations of court
orders” and an “affront to the judicial process.” Defendants
add that the district court’s mention of Plaintiffs’ submission
of the test results to the School District, the EPA, and
Congressman Lieu was made only in the context of
confirming that Plaintiffs “attempted to benefit from [their]
wrongful conduct.” Plaintiffs reply that their taking of
caulking samples did not need to be authorized and was not
wrongful, criminal, or a willful violation of any court order.
Thus, according to Plaintiffs, the only remaining possibility
AMERICA UNITES FOR KIDS V. ROUSSEAU 37
is that the court entered sanctions against Plaintiffs based on
their protected petitioning activities.
We need not resolve this issue. Under Goodyear, any
punitive sanction imposed under a court’s inherent authority
against a party in civil litigation requires criminal-type
safeguards that were not afforded here. Indeed, even
compensatory sanctions require notice and an opportunity to
be heard. See Lasar v. Ford Motor Co., 399 F.3d 1101, 1110
(9th Cir. 2005) (“In particular, ‘it is axiomatic that
procedural due process requires notice of the grounds for,
and possible types of, sanctions.’” (brackets and citation
omitted)); see also Sec. Nat. Bank of Sioux City v. Jones Day,
800 F.3d 936, 944 (8th Cir. 2015) (“Any opportunity to be
heard would be of little value without notice of the nature of
a potential sanction, for only with that information can a
party respond in a cogent way.”). If, on remand, the district
court were to impose punitive sanctions, after providing all
required criminal-type procedural safeguards, the district
court can clarify that it is not imposing any sanction on
Plaintiffs based on First Amendment-protected activities. 11
II. PEER’s Standing
An association or organization can sue based on injuries
to itself or to its members. Warth v. Seldin, 422 U.S. 490,
511 (1975) (“Even in the absence of injury to itself, an
association may have standing solely as the representative of
its members.”). The Supreme Court has recognized that an
organization may have associational standing to sue on
11
If the district court on remand imposes sanctions potentially
implicating First Amendment-protected activities, Plaintiffs should be
permitted to raise any constitutional concerns and the district court
should address them in the first instance.
38 AMERICA UNITES FOR KIDS V. ROUSSEAU
behalf of its members when: (1) its members would
otherwise have standing to sue in their own right; (2) the
interests it seeks to protect are germane to the organization’s
purpose; and (3) neither the claim asserted nor the relief
requested requires the participation of individual members
in the lawsuit. Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333, 343 (1977).
Here, the district court held that PEER lacked standing.
PEER provided a declaration from Katy Lapajne, a
“supporter,” rather than a “member,” in support of its
standing claim. 12 The district court found this declaration
insufficient to establish standing. On appeal, PEER argues
that because its organizational structure does not allow for
“membership,” a declaration from a supporter can be enough
to establish the Hunt elements. Further, PEER notes that the
organization at issue in Hunt did not itself have any
members.
In Hunt, the Supreme Court explained that the
Washington State Apple Advertising Commission was a
state agency that represented the interests of the state’s apple
growers and dealers. 432 U.S. at 336–37. The Commission
was made up of 13 Washington apple growers and dealers
who were nominated and elected within electoral districts by
their fellow growers and dealers. Id. at 337. Nevertheless,
the Supreme Court held that the growers and dealers
possessed “indicia of membership,” citing their sole
responsibility for electing members of the Commission, for
12
The district court sustained Defendants’ evidentiary objections to
PEER’s Articles of Incorporation and Bylaws. PEER did not argue in its
opening brief that the district court erred in this ruling. As a result, that
issue is not before us.
AMERICA UNITES FOR KIDS V. ROUSSEAU 39
serving on the Commission, and for financing the
Commission’s activities. Id. at 344.
In applying Hunt, we have not required all these indicia
of membership, so long as “the organization is sufficiently
identified with and subject to the influence of those it seeks
to represent as to have a ‘personal stake in the outcome of
the controversy.’” Or. Advoc. Ctr. v. Mink, 322 F.3d 1101,
1111 (9th Cir. 2003) (quoting Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 261 (1977)). In
Oregon Advocacy, we held that a non-membership
organization had associational standing because it “serves a
specialized segment of Oregon’s community: the disabled in
general, including the mentally ill and, more specifically,
incapacitated criminal defendants. Those groups are the
primary beneficiaries of OAC’s activities, ‘including the
prosecution of this kind of litigation.’” Id. (quoting Hunt,
432 U.S. at 344).
PEER, like the organization in Oregon Advocacy, serves
a “specialized segment” of the community: public
employees concerned about exposure to environmental risk
at work. And like the groups at issue in Oregon Advocacy,
Lapajne and her fellow teachers were the “primary
beneficiaries” of PEER’s activities, including the
prosecution of this lawsuit. Lapajne, a teacher in the School
District, states in her declaration that she is a teacher at
MMHS and that she has been a supporter of PEER since
November 2013, when PEER became an advocate for
teachers and staff at the Malibu Campus about
environmental contamination. Indeed, Lapajne sent a letter
to the School District in October 2013 on behalf of
20 teachers and staff, expressing their concerns that
environmental conditions at the school might be affecting
their health. She taught in a classroom found to contain
40 AMERICA UNITES FOR KIDS V. ROUSSEAU
illegal levels of PCBs. Lapajne also stated that she suffered
stress and anxiety about the effects of PCBs on her health
when she was told to continue teaching in her classroom.
PEER did not present direct evidence that it is “subject
to the influence” of teachers like Lapajne. Both Hunt and
Oregon Advocacy, however, explained the various ways in
which non-members exercise control over an organization
and its leadership. In Oregon Advocacy, the majority of its
board members were people with disabilities, the group
whose interests the organization purported to represent in
that lawsuit. Neither Hunt nor Oregon Advocacy explicitly
required that the organization be subject to the influence of
those it seeks to represent, although both cases treated that
as an important “indicia of membership.” We are aware of
no federal appellate decision in which a non-member
organization showed that it served a “specialized segment”
of the community that is the “primary beneficiary” of its
activities but failed to establish that those non-members
exercised control over the operation of the organization.
The ultimate consideration when determining whether
an organization has associational standing is whether it has
a “personal stake in the outcome of the controversy.” Oregon
Advocacy, 322 F.3d at 1111 (citation omitted). Here, the
close connection between PEER’s mission and the interests
of its non-member teachers is enough to give the
organization a personal stake in the outcome of this lawsuit.
Thus, PEER has associational standing.
III. District Court’s Partial Modification of
Permanent Injunction
In 2018, the district court partially modified its 2016
injunction under Rule 60(b)(5). That rule permits courts to
“relieve a party or its legal representative from a final
AMERICA UNITES FOR KIDS V. ROUSSEAU 41
judgment, order, or proceeding . . . [if] applying it
prospectively is no longer equitable.” Fed. R. Civ.
P. 60(b)(5). A district court’s authority to modify an
injunction is more limited than its authority to formulate an
injunction in the first instance because of the additional
interest in the finality of judgments. “A balance must thus be
struck between the policies of res judicata and the right of
the court to apply modified measures to changed
circumstances.” Sys. Fed’n No. 91 v. Wright, 364 U.S. 642,
647–48 (1961).
A party requesting modification must show “a
significant change either in factual conditions or in the law
warranting modification of the decree.” United States v.
Asarco Inc., 430 F.3d 972, 979 (9th Cir. 2005) (citing Rufo
v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)).
Further, the modification must be “suitably tailored to
resolve the problems created by the changed factual or legal
conditions.” Id. If the moving party cites significantly
changed circumstances, it must also show that the changed
conditions make compliance with the consent decree more
onerous, unworkable, or detrimental to the public interest.
Id.The significant changed circumstance here was the
passage of the bond measure known as “Measure M” on
November 6, 2018. In addition, post-judgment sampling
showed that some of the window and door systems at the
schools did not have levels of PCBs that exceeded the legal
limit of 50 ppm. Defendants also discovered additional
violations of the TSCA in other building materials at the
Malibu Campus that were not addressed in the district
court’s 2016 permanent injunction.
The passage of Measure M did not make compliance
with the 2016 injunction more onerous or unworkable. In
42 AMERICA UNITES FOR KIDS V. ROUSSEAU
fact, it made compliance easier because the School District
could draw upon additional funds to comply with the
injunction’s remediation measures. Thus, the only basis on
which the modification can be justified is that compliance
would be “detrimental to the public interest.”
In December 2018, the district court found that
compliance with the 2016 injunction was detrimental to the
public interest mainly because compliance required public
expenditures to remediate a TSCA violation in buildings
likely to be demolished within the next several years.
Remediation, thus, would be an inefficient use of limited
public funds. Further, the district court found that it would
be in the public interest to spend money more efficiently by
modifying the injunction’s remediation requirements.
Plaintiffs argue that the district court’s modification
conflicts with the TSCA, which prohibits the use of PCBs in
a wide variety of circumstances. See 15 U.S.C.
§ 2605(e)(2)(A). In implementing the TSCA, the EPA found
that PCBs in concentration of 50 ppm or more “present an
unreasonable risk of injury to health within the United
States.” 40 C.F.R. § 761.20. Plaintiffs argue that although
district courts have discretion when fashioning injunctive
relief, they cannot “override Congress’ policy choice,
articulated in a statute, as to what behavior should be
prohibited.” United States v. Oakland Cannabis Buyers’
Coop., 532 U.S. 483, 497 (2001). Further, “when a court of
equity exercises its discretion, it may not consider the
advantages and disadvantages of nonenforcement of the
statute.” Id. at 498.
Defendants respond, however, and Plaintiffs concede,
that the TSCA does not require an immediate injunction for
every violation of the statute, and any such requirement
would not be feasible. In modifying the 2016 permanent
AMERICA UNITES FOR KIDS V. ROUSSEAU 43
injunction, the general feasibility or advisability of statutory
compliance was not at issue. Rather, the district court found
that continued use of pre-1979 buildings until 2024 was
preferable because it would enable the School District to
comply with the TSCA more efficiently, including allowing
for more comprehensive remediation.
Plaintiffs also argue that the district court’s finding that
the partially amended injunction would “more effectively
protect public health” than the 2016 injunction is
unsupported by facts in the record. We disagree and
conclude that the district court’s factual findings are not
clearly erroneous. Although the modification does not
require a specific timetable for the proposed demolitions, the
district court did not abuse its discretion by concluding that
the School District’s plan to demolish the pre-1979 buildings
by 2024, rather than remediate them, is a more effective way
to reduce exposure to PCBs in the long run.
Finally, Plaintiffs argue that it is illogical to conclude
that the interim mitigation measures that the district court
required (e.g., covering over existing caulk and employing
“best management practices” through cleaning) could be
more protective than simply removing the caulk and building
materials or ceasing all use of pre-1979 buildings. Although
Plaintiffs’ argument may have some appeal in a snapshot or
in the short term, the amendment was not an abuse of the
district court’s discretion when considering the long-term
effects of demolition versus remediation. The district court’s
finding that demolition and replacement would be more
protective of human health in the long term is a reasonable
factual finding, and the district court did not abuse its
discretion.
44 AMERICA UNITES FOR KIDS V. ROUSSEAU
IV. Judicial Notice
Plaintiffs ask us to take judicial notice of a document
dated September 11, 2019, posted on the School District’s
website. The document lists “all known and assumed
building materials with PCBs over 50 parts per million
(ppm) which are over the Toxic Substances Control Act
[TSCA] limit for use.” The document also details the School
District’s plans to remediate some of these buildings.
Plaintiffs argue that the School District’s plans to remediate,
as shown in this document, undermine the factual basis of
the district court’s partial modification.
This document, dated nine months after the district
court’s modification order, was never presented to the
district court, and the relevant record on appeal is the record
before the district court. “It is rarely appropriate for an
appellate court to take judicial notice of facts that were not
before the district court.” Kohn Law Grp., Inc. v. Auto Parts
Mfg. Miss., Inc., 787 F.3d 1237, 1241 (9th Cir. 2015)
(citation omitted). This is not one of those rare cases. We
decline Plaintiffs’ request that we take judicial notice of the
document dated September 11, 2019.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED AND
VACATED IN PART, AND REMANDED.
AMERICA UNITES FOR KIDS V. ROUSSEAU 45
O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:
I concur in Parts III and IV of the majority’s opinion, in
which we affirm the district court’s partial modification of
the permanent injunction and decline to expand the record
on appeal. I disagree, however, with the majority’s reversal
of the district court’s orders imposing sanctions on America
Unites for Kids (“America Unites”) and Public Employees
for Environmental Responsibility (“PEER”) and dismissing
PEER from the case for lack of standing. For the reasons
expressed herein, I respectfully dissent from those portions
of the majority’s opinion.
I
This action was initiated by America Unites and PEER
under the citizen-suit provision of the Toxic Substances
Control Act (“TSCA”), 15 U.S.C. § 2619. They seek to
compel the Santa Monica-Malibu Unified School District
(“the School District”) to take immediate measures to
remove harmful polychlorinated biphenyls (“PCBs”)
detected at certain Malibu schools. 1
TSCA prohibits the use of PCBs beyond specified
concentration levels, but the statute delegates to the
Environmental Protection Agency (“EPA”) the authority to
promulgate rules regarding the use and removal of PCBs.
See 15 U.S.C. § 2605(e)(2)(A), (B). The EPA has issued
extensive guidance to schools regarding PCBs, and the
School District worked closely with the EPA in this case to
1
The majority ably recounts the extensive factual and procedural
history of this matter, so I provide only a brief overview of those aspects
of the case that help to illuminate my disagreement with the majority’s
conclusions.
46 AMERICA UNITES FOR KIDS V. ROUSSEAU
investigate—and, in certain instances, to abate—PCBs at the
designated Malibu schools. While this action was being
litigated in the district court, the EPA had determined that air
and surface wipe testing was sufficient to monitor PCB
concentrations at the schools.
In pre-trial discovery practice, America Unites and
PEER repeatedly sought permission from the district court
to test caulk and other school building materials for PCBs.
The district court consistently refused to authorize such
intrusive discovery, however, unless they could first provide
evidence that air and surface wipe testing showed PCBs in
excess of levels deemed acceptable by the EPA. The district
court chose to phase discovery in this manner to avoid
interfering with the EPA’s expertise and regulatory authority
under TSCA.
Nevertheless, America Unites defied the district court’s
orders and entered onto School District property to take
physical samples of school building materials. Accordingly,
at the request of the School District, the district court
imposed sanctions on America Unites and PEER. 2 Among
other measures, the district court determined in advance that,
due to the parties’ misconduct, it would decline to award
America Unites and PEER attorney’s fees and costs under
TSCA, regardless of whether they ultimately prevailed in the
suit.
After a bench trial, the district court ruled in favor of
America Unites on its TSCA claim and entered a permanent
2
PEER was not involved in the unauthorized testing, but the district
court imposed most of the sanctions on PEER as well, due to its
involvement in the presentation of the evidence from such testing to the
School District, the EPA, and a member of Congress, and its defense of
the testing in its briefing on the motion for sanctions.
AMERICA UNITES FOR KIDS V. ROUSSEAU 47
injunction. The court found, however, that PEER lacked
associational standing and dismissed it from the case.
America Unites and PEER take issue with the district court’s
decision with respect to both sanctions and lack of standing.
II
A
The majority concludes that the district court’s order
denying attorney’s fees and costs to America Unites violates
the limitations, ostensibly articulated in Goodyear Tire &
Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), on a trial
court’s inherent power to punish a litigant for abuse of the
judicial process. See Maj. Op. at 29–34. In Goodyear, the
Supreme Court held that, when a trial court exercises its
inherent authority to sanction a litigant’s bad faith conduct
by ordering it to pay the other side’s legal fees, the amount
of the award must be limited to the fees that the innocent
party incurred because of the misconduct. 137 S.Ct. at 1186.
A fee award that extends further than the amount caused by
the misconduct ceases to be “compensatory” and becomes
“punitive,” and Goodyear recognized that such punitive
monetary fines require the “procedural guarantees
applicable in criminal cases,” like the beyond-a-reasonable-
doubt standard of proof. Id. Absent such procedures, a
punitive fee award may not stand. Id.The majority invokes Goodyear, which was decided
after the district court’s order, in support of the proposition
that the district court’s anticipatory denial of attorney’s fees
and costs to America Unites was punitive—and therefore
invalid due to the district court’s failure to provide
heightened, criminal-type procedural safeguards.
Alternatively, the majority suggests that even if the denial of
fees to America Unites could be characterized as
48 AMERICA UNITES FOR KIDS V. ROUSSEAU
compensatory, the district court nonetheless failed to provide
a detailed analysis connecting the specific “penalty”
imposed and the amount of harm caused by the identified
misconduct. The majority therefore vacates the district
court’s sanctions order in its entirety and remands this case
for additional findings in accord with the compensatory-or-
punitive framework established by Goodyear.
In my view, Goodyear is inapplicable under the
circumstances of this appeal. Goodyear limits a trial court’s
discretion to award attorney’s fees pursuant to its inherent
“undelegated” power, not its discretion to decline to award
such fees pursuant to a statutory fees provision. Id. at 1186
n.5. The majority’s opinion elides this important distinction.
Goodyear’s reasoning is intended to protect litigants
from judicial caprice in instances where the trial court
imposes punitive monetary fines based on powers “not
conferred by rule or statute.” Id. at 1186. Goodyear’s
distinction between compensatory and punitive fee awards
comes from Mine Workers v. Bagwell, 512 U.S. 821 (1994),
which discusses the unique risks posed by an inherent
judicial contempt power:
Unlike most areas of law, where a legislature
defines both the sanctionable conduct and the
penalty to be imposed, civil contempt
proceedings leave the offended judge solely
responsible for identifying, prosecuting,
adjudicating, and sanctioning. . . . [I]ts fusion
of legislative, executive, and judicial powers
“summons forth . . . the prospect of ‘the most
tyrannical licentiousness.’”
Id. at 831 (quoting Young v. United States ex rel. Vuitton et
Fils S.A., 481 U.S. 787, 822 (1987) (Scalia, J., concurring));
AMERICA UNITES FOR KIDS V. ROUSSEAU 49
see also Goodyear, 137 S. Ct. at 1186 (“This court has made
clear that [an assessment of attorney’s fees], when imposed
pursuant to civil procedures, must be compensatory rather
than punitive in nature.” (citing Bagwell, 512 U.S. at 826–
30)).
Understood in this context, Goodyear imposes a
limitation on attorney’s fee awards because such monetary
awards may pose the same concerns regarding
“arbitrariness” and inadequate process as contempt
sanctions. Cf. Bagwell, 512 U.S. at 832 (“Our jurisprudence
in the contempt area has attempted to balance the competing
concerns of necessity and potential arbitrariness. . . .”). In
this respect, fee awards are different from the various
ordinary means available for district courts to “penalize a
party’s failure to comply with the rules of conduct governing
the litigation process,” such as “striking pleadings, assessing
costs, excluding evidence, [or] entering default judgment.”
Id. at 833. Such ordinary punitive judicial sanctions “never
have been considered criminal” in nature. Id.In the case of the challenged sanction here, the district
court did not require America Unites or PEER to pay the
School District’s attorney’s fees. 3 Indeed, the district court
did not attempt to shift fees from one party to another at all.
Rather, the court simply declined to award fees to a
prevailing party under a statute that permitted it to do so
where appropriate. Thus, the concerns that inform the
compensatory-punitive distinction emphasized in Goodyear
are not present. Specifically, TSCA’s citizen-suit provision
3
The district court did impose precisely such a penalty on America
Unites and PEER with the third sanction in its order. Nevertheless, as
explained below, that particular sanction is not properly before us
because the parties agree that it is moot.
50 AMERICA UNITES FOR KIDS V. ROUSSEAU
instructs the district court that it “may award costs of suits
and reasonable fees for attorneys and expert witnesses if the
court determines that such an award is appropriate.”
15 U.S.C. § 2619(c)(2). Regardless of the trial court’s
invocation of inherent powers as the authority allowing it to
enforce appropriate limits on discovery, its specific decision
regarding attorney’s fees is properly characterized as a
statutory determination under TSCA.
B
The appropriate question, then, is whether the district
court’s failure to award fees was permissible under TSCA.
Under TSCA, the district court certainly retained
discretion to decline to award attorney’s fees to America
Unites and PEER. Specifically, we have held that a court
may decline to award fees under similar statutes where
“special circumstances” warrant such an outcome. See Saint
John’s Organic Farm v. Gem Cty. Mosquito Abatement
Dist., 574 F.3d 1054, 1062 (9th Cir. 2009) (extending
“special circumstances” test to citizen suit provisions of the
Clean Water Act). To determine whether “special
circumstances” are present, the court considers whether
allowing attorney’s fees would further the purposes of the
statute and whether the balance of the equities favors or
disfavors the denial of fees. See Thomas v. City of Tacoma,
410 F.3d 644, 648 (9th Cir. 2004); Gilbrook v. City of
Westminster, 177 F.3d 839, 878 (9th Cir. 1999).
To be sure, the “special circumstances” standard is
satisfied infrequently. See Saint John’s Organic Farm,
574 F.3d at 1064 (“[D]enial of fees on the basis of ‘special
circumstances’ is ‘extremely rare.’” (quoting Borunda v.
Richmond, 885 F.2d 1384, 1392 (9th Cir. 1988))). Yet even
under that demanding standard, the record in this case
AMERICA UNITES FOR KIDS V. ROUSSEAU 51
supports the district court’s decision to decline to award fees
to America Unites and PEER.
1
To determine if there are special circumstances that
warrant denial of attorney’s fees to a prevailing plaintiff, we
first ask whether the award of fees would further the purpose
of the statute.
“Congress enacted TSCA in 1976 ‘to prevent
unreasonable risks of injury to health or the environment
associated with the manufacture, processing, distribution in
commerce, use, or disposal of chemical substances.’” Safer
Chemicals, Healthy Families v. EPA, 943 F.3d 397, 406 (9th
Cir. 2019) (quoting S. Rep. No. 94-698, at 1 (1976), as
reprinted in 1976 U.S.C.C.A.N. 4491, 4491). “TSCA
required EPA to regulate chemical substances that the
Agency found to ‘present an unreasonable risk of injury to
health or the environment.’” Id. (quoting 15 U.S.C.
§ 2605(a) (1976)). Thus, before engaging in any TSCA
rulemaking, the EPA must determine which risks are
unreasonable, and, in doing so, must “consider the costs of
any proposed actions.” Corrosion Proof Fittings v. EPA,
947 F.2d 1201, 1222 (5th Cir. 1991).
As mentioned above, the EPA has issued guidance to
schools regarding the removal and management of PCBs.
And, in this case, the EPA authorized the School District to
allow certain PCB-containing materials to remain on site so
long as air and surface wipe testing did not reveal heightened
levels of PCBs. The EPA informed the School District that
it did not recommend additional testing of caulk unless dust
or air samples persistently failed to meet EPA health-based
guidelines.
52 AMERICA UNITES FOR KIDS V. ROUSSEAU
Accordingly, when the School District moved to dismiss
or stay this action based on the EPA’s authority over PCBs
at Malibu schools, the district court denied the motion, but
recognized the potential for conflict between the intrusive,
and potentially costly, discovery sought by America Unites
and PEER, and the EPA’s more cautious approach. The
district court understood that, although America Unites and
PEER could claim to promote TSCA’s aims by bringing a
citizen suit, TSCA also delegates considerable authority to
the EPA to use its expertise and considered judgment to
address harmful chemicals, such as PCBs, in a prudent and
cost-effective way.
In consideration of such competing statutory interests,
the district court allowed the citizen suit to proceed only on
the condition that any PCB testing beyond the EPA’s
recommendation would be limited to prevent interference
with the EPA’s authority over management of PCBs at the
schools. In particular, the district court explained that
destructive testing of school building materials would not be
permitted unless initial air and surface wipe testing indicated
that more invasive discovery was necessary.
The trial court denied multiple requests by America
Unites and PEER to engage in more invasive testing of PCBs
at the schools. Undeterred, America Unites conducted such
sampling anyway. In fact, America Unites’ president
entered onto School District property without authorization
and used a box-cutter to remove material from school
buildings for laboratory testing. To put an end to such
recalcitrant behavior, the district court imposed sanctions.
An award of fees in these circumstances would not have
furthered the purposes of TSCA. Rather, granting fees to
America Unites or PEER would have undermined
Congress’s scheme, which specifically authorizes the EPA
AMERICA UNITES FOR KIDS V. ROUSSEAU 53
to implement and to enforce TSCA’s provisions, as it would
have awarded America Unites or PEER for actions that
directly contradicted the EPA’s determination of the
appropriate way to handle testing in this case. Plainly,
TSCA would not be buttressed by rewarding parties that
deliberately upset the careful statutory balance that the EPA
(and the trial court through its orders) attempted to strike in
this case. Cf. Kuehl v. Sellner, 887 F.3d 845, 856 (8th Cir.
2018) (denying attorney’s fees under the Endangered
Species Act where award would have been inconsistent with
the Act’s purpose).
2
Second, the balance of the equities also favors the court’s
denial of fees. The district court found that America Unites
and PEER had engaged in a pattern of unauthorized, illegal,
and wrongful testing, which it called an “outrageous abuse
of the judicial process.” The district court further found that
America Unites and PEER willfully violated court orders,
subverted the orderly administration of justice, and engaged
in bad-faith conduct. In these circumstances, it would hardly
be equitable to require the defendants to compensate
America Unites or PEER for the costs of their “overly
aggressive litigation strategy,” including the costs of
litigating the discovery orders that they subsequently flouted
and the costs of unauthorized testing. Cf. Williams v.
Hanover Hous. Auth., 113 F.3d 1294, 1301 (1st Cir. 1997)
(“‘[S]pecial circumstances’ warranting a denial of attorneys’
fees under [a similar statute’s fee provision] have been found
if there is a showing of ‘outrageous’ or ‘inexcusable’
conduct by plaintiffs (or plaintiffs’ counsel) during the
litigation of the case.” (quoting Lewis v. Kendrick, 944 F.2d
949, 956 (1st Cir. 1991))); see also De Jesus Nazario v.
Morris Rodriguez, 554 F.3d 196, 200–01 (1st Cir. 2009)
54 AMERICA UNITES FOR KIDS V. ROUSSEAU
(“We have . . . suggested other ‘bad faith or obdurate
conduct’ might . . . constitute special circumstances
warranting denial of attorney’s fees [under a similar
statute].” (quoting Stefan v. Laurenitis, 889 F.2d 363, 371
(1st Cir. 1989))).
C
The majority agrees that the foregoing “special
circumstances” analysis applies to attorney’s fees
determinations under TSCA, yet it insists that we must
remand the case because the district court did not make
explicit findings to support its denial of fees under that
standard. But we may affirm the district court on any basis
supported by the record. See In re Leavitt, 171 F.3d 1219,
1223 (9th Cir. 1999) (“The appellate court may affirm the
lower court on any ground fairly supported by the record.
Remand is not required when express findings are not made,
if a complete understanding of the issues may be had from
the record without the aid of separate findings.” (internal
quotations and citations omitted)).
Here the record plainly supports the conclusion that there
were “special circumstances” sufficient to justify the court’s
denial of attorney’s fees under TSCA. Given that the
relevant findings and determinations have already been
made by the district court, remand for additional
consideration of these same facts would be superfluous.
Even if a remand were called for, however, it would be a
limited remand to allow the district court to address the
“special circumstances” standard under TSCA—and not, as
the majority would have it, a remand for the trial court to
reconsider its decision in light of the Goodyear framework.
According to the majority, the trial court’s denial of fees
under TSCA, even if potentially justified by special
AMERICA UNITES FOR KIDS V. ROUSSEAU 55
circumstances, is still subject to reconsideration under the
Goodyear framework because the trial court’s “rationale”
for the denial of fees was deterrence, which ostensibly shows
that the sanction was punitive in nature. See Maj. Op. at 29–
30.
Contrary to the majority’s line of reasoning, Goodyear
nowhere implies that a district court’s “rationale,” stated or
unstated, is sufficient to transform a statutory determination
to decline attorney’s fees into a punitive award that requires
criminal procedural safeguards. Indeed, the Supreme Court
has indicated that, with respect to contempt sanctions, a trial
court’s characterization of the sanction it has imposed is not
controlling. See Bagwell, 512 U.S. at 828 (“[T]he stated
purposes of a contempt sanction alone cannot be
determinative.”). Rather, “conclusions about the civil or
criminal nature of a contempt sanction are properly drawn,
not from the subjective intent of a State’s laws and its courts,
but from examination of the character of the relief itself.” Id.(internal quotations omitted).
By applying Goodyear’s framework to any judicial
sanction with a supposedly punitive “rationale,” the
majority’s opinion would implicate many measures
fashioned by trial courts to address litigants’ misconduct or
abuse of process—pursuant to such courts’ inherent powers,
or, as in this case, pursuant to explicit statutory authority.
There is no indication that the Supreme Court intended for
its decision to have such a sweeping effect. Cf., e.g., Fuery
v. City of Chicago, 900 F.3d 450, 468–69 (7th Cir. 2018)
(“We have considered whether the Goodyear requirement to
calibrate the sanction to the bad-faith acts also applies to
sanctions other than an award of attorneys’ fees . . . . We
have reason to doubt that it does. The Supreme Court has
instructed that sanctions such as entering default judgment
56 AMERICA UNITES FOR KIDS V. ROUSSEAU
to penalize a party’s failure to comply with the rules of
conduct governing the litigation process have never been
considered criminal.” (internal quotations and citations
omitted)).
In my view, the district court’s statement that its denial
of attorney’s fees under TSCA was intended to deter further
misconduct by America Unites and PEER does not, by itself,
bring such denial within the Goodyear framework, which I
understand to be limited to attorney’s fee awards. Based on
the record before us, I would affirm the district court’s denial
of fees as a proper exercise of discretion under TSCA.
III
The majority also dwells on the other sanctions imposed
by the district court and finds most of them similarly wanting
under Goodyear’s framework. But none of the remaining
sanctions have been properly challenged in this appeal.
A
America Unites and PEER have already conceded that
the first three sanctions imposed by the district court are
moot and no longer disputed by the parties. The first
sanction barred America Unites and PEER from using any
of the evidence obtained from the unauthorized testing,
either in this action or in future actions. The second and third
sanctions required America Unites to pay the School District
for damages caused by the unauthorized testing and to pay
the attorney’s fees incurred by the School District to prepare
its motion for sanctions. Even without the use of evidence
from its independent testing, America Unites prevailed on
the merits at trial. And the School District decided it would
not retain the payments for damages and attorney’s fees.
Accordingly, these matters are moot, as America Unites and
AMERICA UNITES FOR KIDS V. ROUSSEAU 57
PEER noted in their opening brief. In any event, even if the
first three sanctions were not moot, any challenge to those
matters was forfeited. Accordingly, I would not join the
majority in addressing those sanctions on appeal.
B
America Unites and PEER did challenge the fifth and
sixth sanctions imposed by the district court. The fifth
sanction prohibited them from conducting further sampling
or testing without authorization. The sixth sanction required
them to sign declarations stating that they understood the
district court’s orders prohibiting further testing, that they
would comply with those orders, and that they would refrain
from advocating for further testing by others.
But the only arguments raised with respect to those
sanctions were based on the First Amendment. The majority
opinion here declines to address any First Amendment
issues. In fact, it affirms the fifth sanction, along with most
of the sixth sanction, on the ground that they were simple
orders aimed at managing discovery in a civil lawsuit, and
therefore within the district court’s lawful discretion under
the Federal Rules of Civil Procedure. See Maj. Op. at 34–
35.
Nevertheless, it appears that the majority opinion,
despite affirming these specific elements of the district
court’s order, remands the entire order regarding sanctions
as running afoul of Goodyear. I respectfully disagree with
the conclusion that any of the sanctions imposed by the
district court were improper or that a remand for additional
findings is necessary. The district court had discretion under
TSCA to decline to award fees and its decision is supported
by the record. The other sanctions are moot, and to the
extent they were not moot, no meritorious challenge with
58 AMERICA UNITES FOR KIDS V. ROUSSEAU
respect to them has been properly raised on appeal. I would
therefore affirm the trial court’s order regarding sanctions.
IV
After a bench trial, in which the district court ruled in
favor of America Unites and PEER on the merits of their
TSCA claim, the district court concluded that PEER did not
have associational standing and dismissed it from the case.
The majority opinion reverses the district court’s decision on
this issue.
An association has standing to bring suit on behalf of its
members when, among other requirements, its members
would otherwise have standing to sue in their own right.
Hunt v. Wash. Apple Advert. Comm’n, 432 U.S. 333, 343
(1977). An association without formal members may
nonetheless have standing if it has non-member constituents
with standing to sue, and those constituents possess
sufficient “indicia of membership.” Id. We require such
indicia of membership “to satisfy the purposes that undergird
the concept of associational standing: that the organization
is sufficiently identified with and subject to the influence of
those it seeks to represent as to have a ‘personal stake in the
outcome of the controversy.’” Or. Advocacy Ctr. v. Mink,
322 F.3d 1101, 1111 (9th Cir. 2003) (quoting Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
261 (1977)).
In this case, PEER submitted a declaration from Katy
Lapajne, a teacher at Malibu High School and a “supporter”
of the organization, as the basis for its claim to associational
standing. Whereas the district court found the declaration
insufficient to establish standing, the majority would allow
PEER to remain in this action based on Lapajne’s interest in
the suit.
AMERICA UNITES FOR KIDS V. ROUSSEAU 59
Under our precedents, however, Lapajne’s relationship
with PEER is too attenuated to support the key proposition
that PEER is so identified with individuals like her, and so
subject to their influence, as to have a “personal stake” in the
outcome of this dispute. The majority relies on Oregon
Advocacy Center v. Mink for the proposition that PEER is
sufficiently identified with Lapajne because PEER serves a
“specialized segment” of the community to which Lapajne
belongs: public employees concerned about exposure to
environmental harms at work. Cf. 322 F.3d at 1111(“[Oregon Advocacy Center] serves a specialized segment
of Oregon's community: the disabled in general, including
the mentally ill and, more specifically, incapacitated
criminal defendants.”). According to the majority’s opinion,
Lapajne and teachers like her are the primary beneficiaries
of PEER’s activities, including the filing of this suit, just as
the disabled defendants in Oregon Advocacy were the
primary beneficiaries of the Oregon Advocacy Center’s
work on behalf of the mentally ill.
The majority misreads PEER’s mission, however. PEER
seeks to facilitate “anonymous activis[m]” and “dissent” by
“employees and scientists within the government,” with a
particular focus on the “employees of government resource
management and environmental protection agencies.”
Remedying environmental occupational hazards in public
buildings is at best incidental to PEER’s work. By contrast,
in Oregon Advocacy, the connection between the Oregon
Advocacy Center and the disabled defendants whom it
represented was much closer: the association was created
under provisions of federal law to serve their needs. See
322 F.3d at 1105.
Moreover, as the majority concedes, there is no evidence
that PEER is subject to the influence of teachers like
60 AMERICA UNITES FOR KIDS V. ROUSSEAU
Lapajne. Nor is there is evidence that Lapajne either
participates in the election of PEER’s governing body or
finances its activities, which other courts of appeals have
suggested is a requirement for a public-interest
organization’s associational standing. See, e.g., Disability
Advocs., Inc. v. N.Y. Coal. for Quality Assisted Living, Inc.,
675 F.3d 149, 158–59 (2d Cir. 2012); Friends of the Earth,
Inc. v. Chevron Chem. Co., 129 F.3d 826, 829 (5th Cir.
1997); Am. Legal Found. v. F.C.C., 808 F.2d 84, 90 (D.C.
Cir. 1987). As Lapajne tells it, her support for PEER began
when PEER began to advocate for Malibu teachers; she did
not influence PEER’s decision to advocate for her. And
unlike in Oregon Advocacy, PEER’s organizational structure
does not mandate that a controlling number of individuals
like Lapajne serve on its governing board. Cf. 322 F.3d at
1111. PEER thus lacks the responsiveness to its constituents
that could justify treating it as an association, rather than as
an organization.
Ultimately, PEER fails to provide evidence from which
to infer that it is effectively an association or that Lapajne is
the functional equivalent of a member. Accordingly, I
would affirm the district court’s decision to dismiss PEER
from this case for lack of standing. I respectfully dissent
from the majority’s reversal of the district court with respect
to this question.
V
In sum, I join the majority in affirming the district court’s
modification of the injunction, but I do not think the district
court was required to comply with Goodyear when it
declined to award attorney’s fees to America Unites and
PEER pursuant to TSCA’s fee shifting provision. The
district court had discretion to decline to award fees under
TSCA if that outcome was justified by special
AMERICA UNITES FOR KIDS V. ROUSSEAU 61
circumstances, such as bad faith conduct, and the record
supports a finding that such circumstances existed here.
Accordingly, I would affirm the district court’s sanctions
order. I also respectfully dissent from the majority’s
conclusion that PEER has associational standing. Under our
precedents, PEER’s relationship to Lapajne is too attenuated
to support a conclusion that Lapajne is essentially a member
of PEER or that PEER has an adequate stake in this
litigation.
Indeed, I would affirm the district court’s orders in their
entirety.