United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. RUSSO UNITED STATES MAGISTRATE JUDGE
Bullseye Glass Co., initiated this case on December 12, 2017,
asserting defendants Governor Kate Brown
(“Brown”), Director of the Oregon Department of
Environmental Quality (“DEQ”) Richard Whitman
(“Whitman”), Director of the Oregon Health
Authority (“OHA”) Patrick Allen,
(“Allen”) violated plaintiff's
“substantive due process” pursuant to 42 U.S.C.
§ 1983, among other claims. Plaintiff sought a
declaration that federal air quality regulation, 40 C.F.R.
Part 63, Subpart SSSSSS, § 63.11448, (“Regulation
6S”), does not apply to plaintiff or its operations.
The Court dismissed plaintiff's section 1983 claim
without prejudice on January 2, 2019, and plaintiff now seeks
leave to amend. The motion should be denied.
Order Dismissing Substantive Due Process Claim
review of the Court's January 2, 2019, Order informs the
reasoning for denial of the motion to amend:
The Court … holds that Bullseye has not sufficiently
alleged conduct that “shocks the conscience.”
… Bullseye offers no specific allegations of fact that
plausibly support its characterization of intentional,
deliberate, or knowing falsehoods on the part of Defendants,
nor any intentional effort falsely to paint Bullseye as the
epicenter of industrial air pollution in Portland. Bullseye
only offers legal conclusions couched as factual allegations,
which the Court does not credit as true.
Nor is the Court persuaded by Bullseye's argument that,
for the allegations that are properly factual rather than
merely legal conclusions, Ninth Circuit precedent compels the
conclusion that “allegations identical to those
Bullseye has raised” must be found to “shock the
conscience.” Among other things, the Court notes that
the Ninth Circuit cases cited by Bullseye are factually
distinguishable. Bullseye classifies the Ninth Circuit
precedent it relies upon into four categories, each arguably
showing a type of executive action that may establish
constitutional arbitrariness that “shocks the
conscience.” These categories are: (1) actions based on
improper motive; (2) sudden changes of a course of executive
action; (3) false justifications for executive action; and
(4) “singling out” a specific person or company.
The Court addresses each in turn.
1. Improper Motive
Bullseye does not offer any specific factual allegations
plausibly suggesting any improper governmental motive.
Instead, Bullseye makes conclusory assertions, such as that
Defendants “used Bullseye as a scapegoat to conceal
from the public DEQ's failure to establish any program to
identify or control toxic waste emissions from small and
medium size businesses.” Bullseye did not allege any
specific factual basis for this conclusion….
2. Sudden Change of Course ….
Bullseye … acknowledges that the governmental
actors' initial motivation for regulating Bullseye was
the preliminary results of the Moss Study. After receiving
these results, a DEQ official contacted Bullseye and informed
Bullseye that DEQ would be conducting air quality emissions
testing by placing an air quality monitor close to
Bullseye's facility. DEQ tested and measured the air
quality over a period of 18 days in October and early
November 2015. On January 19, 2016, DEQ received the test
results. These results showed maximum daily concentrations of
arsenic and cadmium above typical urban concentrations, as
defined by the federal Agency for Toxic Substances and
Disease Registry. Although Bullseye contests the Moss Study
and the reliability of the air quality testing results,
neither Multnomah County nor the State Defendants gave only
“broad and conclusory” reasons for any change of
course. Instead, the factual allegations that Bullseye
recites indicate that there were specific and non-conclusory
reasons for the change of course, which occurred during a
period of months, and that Defendants were apparently
responding to a potentially serious public health hazard. In
the context of this case, such a change of course, if that is
what happened, is not conscience-shocking.
3. False Justification
Bullseye asserts that Defendants “unlawfully and
deceitfully” invoked the Governor's Cease and
Desist authority and that the Governor falsely asserted that
Bullseye presented “an imminent and substantial
endangerment to the health of persons.” Such assertions
… do not allege specific facts that indicate that the
Defendants' justification was false. Therefore, the
allegations that Bullseye presents do not state a facially
plausible claim that Defendants' actions were supported
by a false justification.
4. Singling Out a Specific Person or Company
Bullseye cites Bateson v. Geisse for the proposition
that singling out “one individual to be treated
discriminatorily” may also be a violation of
substantive due process. 857 F.2d 1300, 1303 (9th Cir. 1988).
In Bateson, the Ninth Circuit held that the
plaintiff had met all of the requirements necessary for the
city to issue him a building permit, but that the city
council voted to withhold the permit without providing the
plaintiff with any process. Id. In Bateson,
however, the constitutional violation was not simply
“singling out” a specific person or company for
differential treatment but doing so in a fashion that was
arbitrary or discriminatory. As discussed above, the facts
alleged by Bullseye indicate that Defendants' actions
were neither arbitrary nor discriminatory but instead were
related to a perceived serious health risk.
and Order (doc. 50) at pp. 11-15.
Court permitted plaintiff to seek leave to amend the claim,
Plaintiff shall comply with the requirements of LR 15-1(d),
and the Magistrate Judge in the first instance shall
determine whether the proposed amendment is futile or would
otherwise be subject to dismissal. See Carrico v. City
& Cty. of San Francisco, 656 F.3d 1002, 1008 (9th
Cir. 2011) (“A court should ‘freely give leave
[to amend] when justice so requires.' Fed.R.Civ.P.
15(a)(2). It is properly denied, however, if amendment would
be futile.”). Regarding futility, the Ninth Circuit has
explained: “Leave to amend is warranted if the
deficiencies can be cured with additional allegations that
are ‘consistent with the challenged pleading' and
that do not contradict the allegations in the original
complaint.” United States v. Corinthian
Colleges, 655 F.3d 984, 995, quoting Reddy v. Litton
Indus., Inc., 912 F.2d 291, 296-97 (9th Cir.1990)
(emphasis added). Further, if Plaintiff files a motion to
amend Count 1, Defendants may respond with any appropriate
challenges to the proposed amended complaint, including those
not previously resolved by the Court. See, e.g.,
Opinion and Order at 11 n.5.
(doc. 55) at p. 3
asserts its proposed allegations cure the deficiencies noted
in the Court's January 2, 2019, Order. Plaintiff alleges
that in late 2015 and early 2016, DEQ and OHA leaked
incomplete, unverified, and misleading details of various
tests regarding airborne emissions from plaintiff's
glass-making facility. Proposed Amended Complaint (doc. 57-1)
at ¶ 21. Plaintiff asserts the public and press were
sharply critical of defendants for permitting plaintiff's
alleged emissions and failing to regulate those emissions.
Id. At ¶ 23. Plaintiff alleges that prior to
the outcry and criticism, defendant DEQ had planned to follow
its normal practices and request permit writers develop a
plan to reduce plaintiff's emissions, but due to bad
press, defendants “created an artificial public health
crisis by falsely portraying Bullseye as a dangerous and
recalcitrant polluter in an effort to shift ...