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Bullseye Glass Co. v. Brown

United States District Court, D. Oregon

June 26, 2019

BULLSEYE GLASS CO., an Oregon Corporation, Plaintiff,
v.
KATE BROWN, in her capacity as Governor of Oregon, RICHARD WHITMAN, in his capacity as Director, Oregon Department of Environmental Quality, PATRICK ALLEN, in his capacity as Director, Oregon Health Authority, MULTNOMAH COUNTY HEALTH DEPARTMENT, State Officials Jane Doe and State Officials John Doe, Defendants.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         BACKGROUND

         A. Order Dismissing Substantive Due Process Claim

         A 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.

         Opinion and Order (doc. 50) at pp. 11-15.

         The Court permitted plaintiff to seek leave to amend the claim, noting:

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.

         Order (doc. 55) at p. 3

         B. Proposed Allegations

         Plaintiff 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 ...


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