Louis PAOLINO; Marie Issa, Plaintiffs, Appellants, v. JF REALTY, LLC; Joseph I. Ferreira; Robert Yabroudy; LKQ Route 16 Used Auto Parts, Inc., d/b/a Advanced Auto Recycling; Joseph I. Ferreira, Trustee of The Joseph I. Ferreira Trust, Defendants, Appellees.
No. 12-2031
United States Court of Appeals, First Circuit.
March 13, 2013.
To the extent that the defendant bases his miscarriage of justice claim on his supposed misapprehension of the advisory nature of the sentencing guidelines, our previous discussion is dispositive. What remains—his insistence that the government‘s case against him “was less than overwhelming“—is nothing more than empty rhetoric, debunked by the defendant‘s own admissions during the change-of-plea colloquy. The short of it is that the defendant has not shown any error, let alone the glaring strain of error needed to fuel a miscarriage of justice finding.
There is one loose end. In advocating for the withdrawal of his guilty plea, the defendant seems to suggest that he received ineffective assistance of counsel. Because the waiver of appeal provision contains an explicit exception for challenges based on ineffective assistance of counsel, we comment briefly on this suggestion. See United States v. McCoy, 508 F.3d 74, 77 (1st Cir.2007) (explaining that “[e]ven a knowing and voluntary appeal waiver only precludes appeals that fall within its scope“).
The defendant‘s ineffective assistance claim (to the extent that one exists) was not raised below. Although “[t]he Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel,” Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir.1994), a defendant lacks “an absolute right” to bring such a “claim for the first time on direct review of a conviction or sentence,” United States v. Rivera-Orta, 500 Fed.Appx. 1, 4, 2013 WL 285678 (1st Cir.2013) [No. 11-1927, slip op. at 9].
“We have held with a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court.” United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.1993). This principle governs here.
We need go no further. For the reasons elucidated above, we uphold the judgment of the district court; without prejudice, however, to the right of the defendant, should he so choose, to raise an ineffective assistance of counsel claim by way of a petition for collateral review. See
So Ordered.
Christopher M. Kilian was on brief for Conservation Law Foundation, amicus curiae.
Robert Clark Corrente, with whom Christopher L. Ayers and Burns & Levinson LLP, were on brief, for appellees.
Before LYNCH, Chief Judge, HOWARD, Circuit Judge, and CASPER,* District Judge.
LYNCH, Chief Judge.
This appeal presents an issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given at least sixty days before a citizen enforcement action may be brought under the federal Clean Water Act (CWA),
The required contents of pre-suit notice are prescribed in
This holding requires us to find error in the district court‘s dismissal of this case. We reverse, in part, and remand for further proceedings consistent with this opinion.
I.
Plaintiffs Louis Paolino and Marie Issa appeal from a district court order dismiss1ing with prejudice their most recent attempt to bring a citizen enforcement action against the defendants pursuant to
An overview of the CWA, including its provisions governing citizen enforcement actions, helps to explain our conclusion. Congress adopted the CWA in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
State and federal authorities are authorized to enforce the CWA through suit.
At least sixty days before initiating such an action, however, a citizen plaintiff must give notice of the alleged violations to the state in which they occurred, the EPA Administrator, and the putative defendant(s).
The CWA does not describe the service or contents of pre-suit notice, providing instead that “[n]otice . . . shall be given in such manner as the [EPA] Administrator shall prescribe by regulation.”
In this case, the plaintiffs jointly own a five-acre property in the Town of Cumberland, Rhode Island. Their property sits downhill from and abuts the southwestern edge of a larger thirty-nine-acre property (the “Property“) owned by defendant JF Realty, LLC, of which defendant Joseph I. Ferreira is the only member.3 Since 1984, Ferreira has used or permitted others to use the Property to operate an automobile salvage and recycling business. The Property is currently leased for that purpose to the defendant LKQ Route 16 Used Auto Parts, Inc., and contains approximately 2,000 automobiles in various stages of recycling.
Plaintiffs filed this action in the District of Rhode Island on January 20, 2012. The complaint contains a single count, which alleges that the defendants are in continuing violation of CWA
On October 7, 2011—more than ninety days before filing their complaint—plain
Defendants filed their motion to dismiss the complaint on February 14, 2012, arguing that plaintiffs had failed to allege or establish several mandatory prerequisites to a citizen suit under the CWA. Specifically, defendants asserted that (1) plaintiffs’ pre-suit Notice did not describe the alleged CWA violations with the specificity required under
The district court issued an order on July 26, 2012, dismissing the complaint under
We limit our review to the sufficiency of plaintiffs’ pre-suit Notice and the adequacy of service on defendant Yabroudy.5
II.
The primary issue on appeal is whether the district court erred in finding that the contents of plaintiffs’ pre-suit Notice were insufficiently specific to satisfy the requirements set forth in
In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 59-60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), the Supreme Court explained that the CWA‘s pre-suit notice requirements serve two purposes, each related to the supplementary role Congress envisioned for citizen enforcement actions. First, pre-suit notice allows federal and state agencies to initiate their own enforcement action against an alleged violator, obviating the need for a citizen suit. Id. at 59-60; see also
Congress entrusted to the EPA the task of determining what information a pre-suit notice letter would need to include in order to achieve these purposes.
Pursuant to these directives, the EPA adopted
shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.
The key language in
The adequacy of the information contained in pre-suit notice will depend upon, inter alia, the nature of the purported violations, the prior regulatory history of the site, and the actions or inactions of the particular defendants. For example, where, as here, the alleged violations concern the unlawful discharge of pollutants, several courts have found that only those discharges for which the notice identifies a particular pollutant will withstand a sufficiency challenge. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 401 (4th Cir.2011); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 487-88 (2d Cir.2001); see also Brod v. Omya, Inc., 653 F.3d 156, 169 (2d Cir.2011) (same under RCRA notice requirements (citing Catskill, 273 F.3d at 487)). Since that was done here, we do not decide whether it is always required.
The CWA does not require, however, that a citizen plaintiff “list every specific aspect or detail of every alleged violation,” or “describe every ramification of a violation.” Hercules, 50 F.3d at 1248. This is so because, “in investigating one aspect” of an alleged violation, “the other aspects of that violation . . . will of necessity come under scrutiny” by the putative defendant. Id. Thus, the Ninth Circuit has twice found that a notice letter alleging continuing unlawful discharges of pollutants need not list every date on which such discharges occurred. Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913 (9th Cir.2004); BayKeeper, 309 F.3d 1153. In both cases, other information in the notice letter concerning the cause and source of the alleged discharges permitted the defendants to identify an adequate number of specific dates on which these discharges occurred and to take remedial action. Waterkeepers, 375 F.3d at 917-18 (violations caused on “every rain event over 0.1 inches” (internal quotation marks omitted)); BayKeeper, 309 F.3d at 1159 (violations caused “on each day when the wind has been sufficiently strong to blow” pollutants into adjacent slough (internal quotation marks omitted)). Similarly, the Third Circuit in Hercules held that a sufficiently alleged discharge violation in pre-suit notice also informed the defendants of “any subsequently discovered monitoring, reporting or recordkeeping violation that is directly related to the discharge violation.” 50 F.3d at 1248. “In short, the Clean Water Act‘s notice provisions and their enforcing regulations require no more than ‘reasonable specificity.‘” BayKeeper, 309 F.3d at 1158 (quoting Catskill, 273 F.3d at 488); Natural Res. Council of Me. v. Int‘l Paper Co., 424 F.Supp.2d 235, 249 (D.Me.2006).
In the present dispute, the defendants launch an omnibus attack on the contents of plaintiffs’ October 7 Notice letter. They assert that the Notice did not contain sufficient information to identify: (1) the specific standard or limitation at issue, (2) the activity alleged to have caused a violation of that standard or limitation, and (3) the particular defendant responsible for that violative activity.6 The district court granted defendants’ motion to dismiss on the first of these grounds, finding that the Notice “fail[ed] to provide sufficiently specific information for the recipients to identify which CWA standard is being violated.” Paolino, 2012 WL 3061594, at *7.
Plaintiffs respond that this conclusion was erroneous in two respects: first,
The information in plaintiffs’ October 7 pre-suit Notice, as we soon describe, was
On pages three and four of the Notice, plaintiffs describe in some detail the mechanisms through which they allege the Property is discharging pollutants into navigable waters. Specifically, the Notice states that in 1984 defendant Ferreira relocated a drainage ditch from the Property onto the plaintiffs’ land, creating an “Intermittent Stream.” This Intermittent Stream flows through the plaintiffs’ property into the Curran Brook, which eventually discharges into the Robin Hollow Reservoir—a source of drinking water for the City of Pawtucket, Rhode Island. The Notice asserts that defendants use the Intermittent Stream to drain a contaminated pond on the rear of the Property and to divert otherwise hazardous storm water runoff from the Property into the pathway leading to the Reservoir.
As to the specific pollutants at issue, the Notice also contains a three-page list of individual dates, from November of 2002 to September of 2011, on which reported measures or observations of hazardous materials on the Property, or in its runoff, exceeded allowable levels under Rhode Island water quality standards.7 These entries vary in specificity, but none fails to identify a particular pollutant discharge said to be in violation of the terms of defendants’ RIPDES permit. For example, the following is among the shortest entries in the list:
2. On March 11, 2004, runoff from the Property sampled by [the Pawtucket Water Supply Board], analyzed to contain 8 ug/l of MBTE (none allowed).
From this information alone, defendants can identify the pollutant at issue (methyl tertiary butyl ether), the purported standard under Rhode Island law (0 micrograms per liter), and the alleged violation (an amount of MBTE in excess of 0 ug/l).
Other entries on the three-page list note turbidity measurements in discharges from the Property said to exceed those on which Rhode Island‘s DEM based its March 2, 2010 Notice of Violation to the defendants. Treating these allegations as accurate, defendants may identify the required information under
In concluding that this list was insufficiently specific, the district court noted that “not one of the listed items identifies ‘the specific standard [or] limitation’ of the CWA that has allegedly been violated.” Paolino, 2012 WL 3061594, at *6 (alteration in original). But given the other information which was provided,
Plaintiffs’ Notice letter also contains sufficient information for the defendants to
In addition to providing its own historical narrative describing these violations, the Notice also notes that the DEM independently attempted to resolve these issues in a September 23, 2010 letter addressed to defendant Robert Yabroudy of the Joseph I. Ferreira Trust. As with the alleged enforcement proceedings concerning the Property‘s turbidity levels, described above, the defendants may avail themselves of this letter, and any related enforcement proceedings arising from it, in identifying the particulars of the two grounds for invalidity.
Defendants also argue that, notwithstanding its specificity as to the nature and dates of the violations, the Notice “did not make any effort to identify the person or persons responsible for each alleged violation.” We disagree. At a minimum, the information in the Notice did allow the defendants to determine each other‘s responsibility for the individual violations, as required under
For these reasons, we reverse the district court‘s dismissal for lack of subject matter jurisdiction with respect to plaintiffs’ claims arising from the list of discharge violations and the invalid RIPDES permit. If on remand the plaintiffs press other claims, not discussed here, which fail to meet this test, defendants may move to dismiss those claims. Cf. Hercules, 50 F.3d at 1253 (remanding to the district court with instruction to “reinstate those discharge violations which are of the same type . . . as the discharge violations included in the plaintiffs’ 60-day notice letter“). Nothing in this opinion precludes the defendants from raising other defenses under
III.
The district court also held that, as to defendant Robert Yabroudy,8 an independent basis for dismissal was that plaintiffs’ service of pre-suit notice was defective under
There is no dispute that plaintiffs sent to each of the defendants by certified mail a copy of the Notice on October 7, 2011. Each of these copies was received and signed for by the relevant defendant, except for the Notice addressed to Yabroudy. That copy of the Notice was sent to the Property‘s street address, and returned by the post office with the parcel marked “Refused.” Other boxes on the certified mailing form, such as “Attempted—Not Known” and “Unclaimed,” were not checked.
We cannot conclude that the district court erred in finding that this Notice was defective. In his April 20, 2010 deposition, Yabroudy provided to plaintiffs his personal and work addresses, both of which were different than the Property‘s address. Although plaintiffs maintain that Yabroudy continued to work at the Property after this date, this did not ensure that he would receive notice sent there.9 At the very least, it was not clearly erroneous for the district court to conclude “that the notice . . . was not sent to Yabroudy at his residential or work address.” Paolino, 2012 WL 3061594, at *5.
Moreover, as the district court noted, it “[wa]s not required . . . to infer . . . that Mr. Yabroudy received and read the [Notice] Letter when it was delivered” based upon its being marked as “Refused.” Id. (third alteration in original) (internal quotation marks omitted). The record does not reveal to whom at the Property the post office attempted to deliver the Notice addressed to Yabroudy. This case is not about the principle that a defendant may not render notice defective by refusing its delivery herself. See, e.g., Comm. on Grievances of the U.S. Dist. Court for the E. Dist. of N.Y. v. Feinman, 239 F.3d 498, 499 (2d Cir.2001); Patmon & Young Prof‘l Corp. v. Comm‘r of Internal Revenue, 55 F.3d 216, 218 (6th Cir.1995).
Finally, we reject plaintiffs’ argument that neither the CWA nor
IV.
The judgment of the district court is reversed, in part, and the case is remanded for further proceedings consistent with this opinion. No costs are awarded.