                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 11 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARIA GARCIA; et al.,                            No. 14-15494

              Plaintiffs - Appellants,           D.C. No. 3:13-cv-03939-WHO

 v.
                                                 MEMORANDUM*
GINA MCCARTHY, in her official
capacity as Administrator of the U.S.
Environmental Protection Agency; et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Northern District of California
               William Horsley Orrick III, District Judge, Presiding

                       Argued and Submitted April 15, 2016
                            San Francisco, California

Before: NOONAN, BEA, and CHRISTEN, Circuit Judges.

      In June of 1999, parents of Latino school children filed an administrative

complaint with the Environmental Protection Agency (“EPA”) pursuant to its

regulations implementing Title VI of the Civil Rights Act of 1964 (“Title VI” or “the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Act”) alleging that the California Department of Pesticide Regulation (“CDPR”)—a

recipient of federal funds—authorized the use of methyl bromide and other pesticides

in a fashion that had a disproportionately harmful effect on Latino school children in

violation of Title VI. See Angelita C. v. Cal. Dep’t of Pesticide Regulation, EPA File

No. 16R–99–R9. EPA investigated the complaint, made a preliminary finding of a

prima facie violation of Title VI, and began negotiations with CDPR. Twelve years

later, in August of 2011, EPA settled the Angelita C. case by entering into a voluntary

compliance agreement with CDPR, and dismissed the complaint. The complainants

were never informed of the status of their complaint in the twelve years between the

time it was accepted for investigation and when it was dismissed. EPA denied

complainants’ requests to reopen the settlement agreement.

      In August 2013, plaintiffs, “parents of children who attended, currently attend,

or will attend schools in Oxnard, California (Ventura County) and who were, are, or

will be exposed to dangerous levels of toxic pesticides and fumigants,” filed the

present action challenging EPA’s settlement with CDPR. They appeal the district

court’s grant of EPA’s motion to dismiss for lack of subject matter jurisdiction. Fed.

R. Civ. P. 12(b)(1). We affirm, and hold that EPA’s decision to settle, as well as the

scope of its investigation, “is committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830 (1985).


                                          2
                                           I.

      While Chaney addressed an agency’s refusal to act, courts that have had

occasion to address the issue have uniformly held that an agency’s decision to settle

falls under the penumbra of agency inaction that has traditionally been subject to a

rebuttable presumption against judicial review. United States v. Carpenter, 526 F.3d

1237, 1241-42 (9th Cir. 2008) (holding that decision to settle is unreviewable, but that

plaintiffs could still challenge settlement for agency’s failure to comply with

procedural mandates); N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209, 1215 (D.C.

Cir. 1993); Balt. Gas & Elec. v. FERC, 252 F.3d 456, 460 (D.C. Cir. 2001); United

Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1327 (6th Cir. 1993); United States v.

Gary, 963 F.2d 180, 184-85 (8th Cir. 1992); see also Greer v. Chao, 492 F.3d 962,

966 (8th Cir. 2007) (O’Connor, J. (ret.)) (scope of investigation); Mahoney v. U.S.

Consumer Prods. Safety Comm’n, 146 F. App’x 587, 590 (3d Cir. 2005)

(unpublished). This conclusion flows from Chaney’s central teaching that “[t]he

danger that agencies may not carry out their delegated powers with sufficient vigor

does not necessarily lead to the conclusion that courts are the most appropriate body

to police this aspect of their performance. That decision is in the first instance for

Congress.” Chaney, 470 U.S. at 834.




                                           3
      Plaintiffs’ allegations that EPA acted arbitrarily and capriciously by limiting its

investigation to methyl bromide exposure between 1995 and 2001, and by failing to

allow for plaintiffs’ participation in settlement negotiations are entirely untethered to

any statutory provision or regulation implementing Title VI. None of the statutes or

regulations cited by plaintiffs provide a meaningful standard for defining the limits

of EPA’s discretion in investigating a complaint, and none require EPA to permit

plaintiffs to participate in EPA’s settlement negotiations. EPA’s plenary authority to

either accept, reject, or refer a complaint to another federal agency, 40

C.F.R. § 7.120(d)(1)(i), must necessarily include the lesser power to determine the

scope of the investigation in the event the complaint is accepted. See Madison-Hughes

v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996); Greer, 492 F.3d at 966.

      Plaintiffs’ allegation that the settlement agreement fails to secure “compliance”

with Title VI as required by 40 C.F.R. § 7.115 is also without merit. Having failed to

define what substantive “compliance” with Title VI requires, Congress chose not to

cabin EPA’s otherwise unreviewable discretion in deciding how to enforce the Act.

Plaintiffs’ argument that the Court may look to the Act’s broad remedial language to

divine a definition of “compliance” was rejected by the Chaney court. Chaney, 470

U.S. at 835-36; see also Balt. Gas & Elec., 252 F.3d at 461. Plaintiffs’ suggestion that




                                           4
the Court should imbue “compliance” with meaning derived from Title VI case law

is similarly flawed. See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987).

                                               II.

      A decision that is committed to agency discretion by law may nonetheless be

reviewable where the agency has “‘consciously and expressly adopted a general policy’

that is so extreme as to amount to an abdication of its statutory responsibilities.”

Chaney, 470 U.S. at 833 n.4 (citing Adams v. Richardson, 480 F.2d 1159, 1162 (D.C.

Cir. 1973) (en banc)).1 Plaintiffs argue that EPA’s failure to comply with its own

regulatory deadlines for: (1) accepting or rejecting the administrative complaint, and

(2) making recommendations for voluntary compliance, qualify as such a dereliction

of duty.2


       1
         Plaintiffs also cite Adams, a D.C. Circuit opinion published a dozen years before
Chaney, for the much broader proposition that Title VI provides “law to apply.” 480 F.2d at
1162 (“The terms of Title VI are not so broad as to preclude judicial review.”). However Adams
did not purport “to resolve particular questions of compliance or noncompliance,” id. at 1163, as
plaintiffs are admittedly attempting to do here, but rather dealt with the rare circumstance where
an agency’s actions amounted to an utter “dereliction of duty.” Id. In sum, Adams retains vitality
only in the rare circumstance for which it is cited in a footnote of Chaney. See e.g. Marlow v.
U.S. Dep’t of Educ., 820 F.2d 581, 583 (2d Cir. 1987). The more sweeping characterization
urged by plaintiffs would essentially overrule Chaney and furthermore finds no basis in Adams
itself.
       2
        EPA accepted the administrative complaint on December 11, 2001—875 days past the
20-day deadline for doing so. 40 C.F.R. § 7.120(d)(1)(i). EPA made a preliminary finding of a
prima facie violation on April 22, 2011, approximately twelve years beyond the 180-day
deadline prescribed by its regulations. 40 C.F.R. § 7.115(c)(1).

                                                5
      However, this case centers not around the effects of EPA’s delay, but rather

around EPA’s interpretation of its own enforcement duties under Title VI, a matter

committed to its discretion by law. In Adams, the remedy the court provided to combat

the agency’s dereliction of duty was an injunction which forced the agency to act. See

Adams, 480 F.2d at 1164 n.5. In the case at bar, the EPA has already acted. While the

EPA’s delay is lamentable, plaintiffs can no longer claim a judicially redressable harm

resulting from it—and in any event, expressly waived any cause of action alleging an

injury arising from EPA’s undue delay before the district court. See Garcia v.

McCarthy, No. 13-CV-03939-WHO, 2014 WL 187386, at *11 n.5 (N.D. Cal. Jan. 16,

2014).

                                                III.

      EPA’s regulations establish, at most, a set of procedural guidelines it must

comply with during the investigation and enforcement process. Plaintiffs do not allege

a failure to comply with these procedural guidelines, nor do they point to any statutory

or regulatory provision that would provide this Court with “law to apply.”3



         3
         Plaintiffs also argue that Section 603 of the Act provides a basis for judicial review. This
section authorizes review “[i]n the case of action, not otherwise subject to judicial review,
terminating or refusing to grant or to continue financial assistance upon a finding of failure to
comply with any requirement imposed pursuant to section [602].” 42 U.S.C. § 2000d-2.
However EPA did not terminate, refuse to grant, or refuse to continue funding to CDPR;
therefore Section 603 is inapplicable here. Marlow, 820 F.2d at 582.

                                                 6
Accordingly, we are without subject matter jurisdiction to hear this case. We therefore

need not reach EPA’s argument that plaintiffs are also precluded from bringing this

suit because they have an alternative “adequate remedy in a court.” 5 U.S.C. § 704.

Finally, we deny plaintiffs’ motion for judicial notice.

AFFIRMED.




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