United States District Court, D. Columbia.
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For KINGMAN PARK CIVIC ASSOCIATION, Plaintiff: Frazer Walton, Jr., LEAD ATTORNEY, LAW OFFICE OF FRAZER WALTON, JR., Washington, DC.
For VINCENT C. GRAY, In his Official Capacity as Mayor of the District of Columbia, Defendant: Alicia Marie Cullen, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC; Chad Alan Naso, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Kingman Park Civic Association (" Kingman Park" ) filed suit against Vincent C. Gray in his official capacity as the Mayor of the District of Columbia, challenging aspects of the District's plan to construct a streetcar line in the northeast quadrant of the District. Presently before the Court is Defendant's  Motion to Dismiss the Amended Complaint or, in the alternative, for Summary Judgment and Plaintiff's  Motion to Stay and for Reconsideration of the Court's Order Denying
Plaintiff's Motion for Leave to File a Second Amended Complaint. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court finds that Plaintiff has standing to challenge the streetcar-related construction on the campus of Spingarn Senior High School, but not the installation of overhead streetcar wires in the Kingman Park neighborhood. However, all counts, except Counts II and VI, of Plaintiff's Complaint must be dismissed because Plaintiff has failed to state a claim for relief or a claim over which this Court has jurisdiction regarding the construction on the Spingarn campus. The Court holds Counts II and VI in abeyance pending Defendant's production of certain documents related to the environmental impact of construction on Spingarn Senior High School. The Court also finds that Plaintiff cannot be granted leave to amend its Amended Complaint to include a Clean Air Act claim because it failed to meet the Clean Air Act's strict pre-suit notice requirements. Accordingly, Defendant's  Motion to Dismiss or, in the alternative, for Summary Judgment is GRANTED IN PART and HELD IN ABEYANCE IN PART and Plaintiff's  Motion to Stay and for Reconsideration of the Court's Order Denying Plaintiff's Motion for Leave to File a Second Amended Complaint is DENIED.
A. Factual Background
For the purposes of Defendant's Motion to Dismiss, the Court presumes the following facts pled in Plaintiff's Amended Complaint to be true, as required when considering a motion to dismiss. See Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681, 386 U.S.App.D.C. 144 (D.C. Cir. 2009). The District of Columbia intends to construct a streetcar network extending across 37 miles. Am. Compl. ¶ 10. On or about March 31, 2011, the D.C. Council passed and approved the " Transportation Infrastructure Amendment Act of 2010," D.C. Code § 9-1171, permitting " Aerial Wires for Streetcars" for the streetcar transit line running along H Street and Benning Road in the northeast quadrant of the District. Id. ¶ 17. Around December 2011, the District of Columbia Department of Transportation (" DDOT" ) decided to build a " car barn" on the grounds of Spingarn Senior High School (" Spingarn campus" ), located on the 2500 block of Benning Road, Northeast.
Id. ¶ ¶ 13, 18. The car barn will be used to house streetcars while not in operation and will also serve as an operations and maintenance facility. Id. ¶ 14. An electrical substation was also proposed to be constructed on the Spingarn campus. Id. ¶ 20. Plaintiff and Advisory Neighborhood Commission (" ANC" ) 5B Commissioner Bernice Blacknell, whose ANC district includes Spingarn Senior High School, were not notified of DDOT's decision to construct on the Spingarn campus in December 2011. Id. ¶ 18. ANC Commissioner Blacknell was first informed of the proposed construction on the grounds of Spingarn campus in March 2012 at an ANC meeting. Id. ¶ 21. Shortly thereafter, ANC 5B Commissioner Blacknell objected to proposed construction plans and requested the District not construct on the grounds of Spingarn High School. Id. ¶ 22. ANC Commissioner Blacknell also submitted a citizens petition to the District in opposition to the proposed construction on Spingarn campus. Id.
In September 2012, Plaintiff filed an application with the District for the historic landmark designation of Spingarn Senior High School. Id. ¶ 29. In October 2012, ANC 5B issued a resolution sent to the D.C. Historic Preservation Board (" Preservation Review Board" ) indicating the Commission's support of Plaintiff's application for historic designation of Spingarn High School and informing the Preservation Review Board of citizen opposition to construction of a car barn on the grounds of the Spingarn campus. Id. ¶ 24 (citing Compl., Pl.'s Ex. 5). In November 2012, the Preservation Review Board accepted Spingarn Senior High School as the site for the new car barn. Id. ¶ 31. Later that same month, the Preservation Review Board designated Spingarn High School as an historic landmark in the District of Columbia Inventory of Historic Sites. Id. ¶ 32. On April 4, 2013, the Preservation Review Board unanimously approved the concept for the streetcar car barn and training center on the Spingarn campus. Id. ¶ 33. On May 2, 2013, the Preservation Review Board gave final approval to the concept and plans for the construction of a car barn and training center on the Spingarn campus. Id. ¶ 36.
B. Procedural History
Plaintiff Kingman Park Civic Association--an unincorporated neighborhood civic association whose members are residents of the Kingman Park neighborhood in Northeast Washington, D.C.--filed suit on June 28, 2013, against District of Columbia Mayor Vincent Gray in his official capacity challenging the District's plan to construct the streetcar line in the northeast quadrant of the District. Specifically, Plaintiff challenges the construction of the overhead street car wires on H Street and Benning Road and the car barn on the Spingarn campus as violating the Fifth Amendment's Equal Protection Clause, the National Historic Preservation Act, the District of Columbia's Comprehensive Plan, District of Columbia Zoning laws, the District of Columbia Environmental Policy Act of 1989, the Federal-Aid Highway Program, the U.S. Department of Transportation Act of 1966, the District of Columbia Historic Landmark and Historic District Protection Act of 1978, D.C. Code § 1-309.10(a)
's " great weight" requirement, and the District of Columbia Human Rights Act. The same day Plaintiff filed suit, Plaintiff also filed a Motion for Temporary Restraining Order and Preliminary Injunction. See ECF No. . Plaintiff filed an Amended Motion for Temporary Restraining Order on July 5, 2013, see ECF No. , and an Amended Complaint on July 9, 2013, see ECF No. . On July 29, 2013, the Court denied Plaintiff's Motion for Temporary Restraining Order and for Preliminary Injunction on the basis that Plaintiff was not likely to succeed on the merits of its claims, nor suffer irreparable injury absent emergency relief, and because the balance of the equities did not favor injunctive relief. See July 29, 2013, Order & Mem. Op., ECF Nos.  & .
On August 2, 2013, Plaintiff filed a Motion for Leave to File a Second Amended Complaint seeking to include a Clean Air Act (" CAA" ) claim and a Fair Housing Act claim. See ECF No. . Before the Court ruled on Plaintiff's motion to amend, Plaintiff withdrew its CAA claim, acknowledging that it failed to satisfy the CAA's pre-suit notice requirements. See ECF No. , at 1. On August 26, 2013, the Court denied Plaintiff leave to amend its Complaint to include a Fair Housing Act claim. See Aug. 26, 2013, Order & Mem. Op., ECF Nos.  & . Four days later, Defendant filed the present Motion to Dismiss or, in the alternative, for Summary Judgment. See ECF No. . Defendant moves the Court to dismiss all ten counts of Plaintiff's Amended Complaint for lack of standing or, alternatively, failure to state a claim. Following the completion of briefing of Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment, Plaintiff filed a motion moving the Court to reconsider its denial of Plaintiff's Motion for Leave to File Second Amended Complaint and to stay Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment pending the Court's decision on Plaintiff's Motion for Reconsideration. See ECF No. . Although Plaintiff claims to be moving the Court to reconsider its prior decision, Plaintiff only seeks leave to amend its Amended Complaint to include the CAA claim which the Court never denied, but Plaintiff voluntarily withdrew. Accordingly, Plaintiff's " Motion for Reconsideration" is in actuality no more than an additional motion for leave to file a second amended complaint. As the parties have fully briefed Plaintiff's " Motion for Reconsideration," the Court will now consider the propriety of permitting Plaintiff leave to amend its Amended Complaint to include a CAA claim. Since the Court denies Plaintiff leave to amend its Amended Complaint to include a CAA claim, the Court need not stay its consideration of Defendant's Motion to Dismiss to permit Defendant time to respond to Plaintiff's additional claim. Accordingly, the Court shall also consider Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment.
II. LEGAL STANDARD
A. Leave to Amend Complaint
Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a matter of course within a prescribed time period. See Fed.R.Civ.P. 15(a)(1). Where, as here, a party seeks to amend its pleadings outside that time period, it may do so only with the opposing party's written consent or the district court's leave. See Fed.R.Civ.P. 15(a)(2). The decision whether to grant leave to amend a complaint is entrusted to the sound discretion of the district court, but leave " should be freely given unless there is a good reason, such as futility, to the contrary." Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003, 321 U.S.App.D.C. 385 (D.C. Cir. 1996),
cert. denied, 520 U.S. 1197, 117 S.Ct. 1553, 137 L.Ed.2d 701 (1997). As the Supreme Court has observed:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be " freely given."
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). " [A] district court has discretion to deny a motion to amend on grounds of futility where the proposed pleading would not survive a motion to dismiss." Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945, 361 U.S.App.D.C. 257 (D.C. Cir. 2004), cert. denied, 545 U.S. 1104, 125 S.Ct. 2537, 162 L.Ed.2d 274 (2005). Review for futility is practically " identical to review of a Rule 12(b)(6) dismissal based on the allegations in the amended complaint." In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 215-16, 393 U.S.App.D.C. 415 (D.C. Cir. 2010) (quotation marks omitted). Because leave to amend should be liberally granted, the party opposing amendment bears the burden of coming forward with a colorable basis for denying leave to amend. Abdullah v. Washington, 530 F.Supp.2d 112, 115 (D.D.C. 2008).
B. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(1)
To survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828, 376 U.S.App.D.C. 18 (D.C. Cir. 2007). In determining whether there is jurisdiction, the Court may " consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S.App.D.C. 72 (D.C. Cir. 2003) (citations omitted). " At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106, 368 U.S.App.D.C. 297 (D.C. Cir. 2005). " Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1)," the factual allegations in the complaint " will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (citations omitted).
C. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds that it " fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, " state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
" A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
A. Leave to Amend Complaint
Plaintiff seeks to file a Second Amended Complaint that includes one count under the Clean Air Act (" CAA" ). Defendant opposes Plaintiff amending its Complaint to add the CAA claim because Plaintiff " has not complied with the relevant pre-suit notice requirements and has not stated a plausible claim for relief under the CAA." Def.'s Opp'n. at 1-2.
The CAA explicitly provides that " [n]o action may be commenced" under the citizen suit provision of the statute unless the plaintiff, at least 60 days prior to commencing the suit, provides " notice of the violation (i) to the Administrator [of the U.S. Environmental Protection Agency], (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, ...