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Cudjoe v. Dep't of Veterans Affairs

October 13, 2005

DERRYEN D. CUDJOE, A MINOR CHILD BY AND THROUGH HIS NATURAL GUARDIANS AND NEXT FRIENDS, BARBARETTE AND DERRY CUDJOE, APPELLANTS
v.
DEPARTMENT OF VETERANS AFFAIRS; ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS; ROGER W. ROBERT



On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil Action No. 03-cv-05367. (Honorable Legrome D. Davis).

The opinion of the court was delivered by: Scirica, Chief Judge

PRECEDENTIAL

Argued May 24, 2005

Before: SCIRICA, Chief Judge, ALITO and ROSENN, Circuit Judges

OPINION

At issue is whether the United States has waived sovereign immunity to suits for money damages under certain provisions of theResidential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 4851 et seq., and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.

Plaintiff filed suit against the Department of Veterans Affairs and a private landlord for unlawfully failing to disclose lead paint contamination in a leased apartment. Finding no express waiver of sovereign immunity, the District Court dismissed the claims for lack of subject matter jurisdiction. It also declined to exercise supplemental jurisdiction over related causes of action under state law. We will affirm the judgment on waiver of sovereign immunity, but vacate and remand the claimsagainst the landlord for further proceedings.

I.

Plaintiff Derryen Cudjoe filed a complaint, by and through his natural guardians and next friends Barbarette and Derry Cudjoe, alleging the Department of Veterans Affairs and landlord Roger W. Robert violated federal law by failing to disclose information concerning lead contamination when his family leased an apartment in 2000 at 197 East 198th Street, Chester, Pennsylvania.*fn1 Cudjoe asserts federal causes of action under theResidential Lead-Based Paint Hazard Reduction Act and the Toxic Substances Control Act (Count I), as well as common law claims of negligence (Count II), against the Department of Veterans Affairs and Robert. The complaint also includes common law claims of negligent misrepresentation and omission (Count III), and intentional misrepresentation and omission (Count IV), against Robert alone.

After residing in the apartment for several months, Cudjoe, then two years old, tested positive for high concentrations of lead in his blood. The family vacated the apartment. The Bureau of Health of the City of Chester examined the property in November 2000, and found dangerous levels of lead paint and dust throughout the premises. Nevertheless, the complaint was not filed until September 24, 2003.

Robert answered the complaint, counter-claimed that Cudjoe's injuries were caused by his parents, and brought cross-claims against the Department of Veterans Affairs for liability, indemnification and/or contribution. Without filing an answer, the Department of Veterans Affairs moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), contending that neither the Residential Lead-Based Paint Hazard Reduction Act nor the Toxic Substances Control Act, alone or in conjunction, waived the government's sovereign immunity against private suits for money damages. The Department of Veterans Affairs argued Cudjoe should have proceeded instead under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Cudjoe, however, failed to exhaust his administrative remedies under the Federal Tort Claims Act, and his claim is now barred by its two-year statute of limitations, 28 U.S.C. § 2401(b). Cudjoe argued in response that he was not required to proceed under the Federal Tort Claims Act because the Residential Lead-Based Paint Hazard Reduction Act and the Toxic Substances Control Act, in conjunction with one another, waive sovereign immunity and provide an independent cause of action. The District Court granted the government's motion to dismiss, Cudjoe ex rel. Cudjoe v. Dep't of Veterans Affairs, 2004 WL 1447834 (E.D. Pa. Jun. 28, 2004), and Cudjoe filed this timely appeal.

II.

We have jurisdiction under 28 U.S.C. § 1291 over the appeal from the order granting the motion to dismiss for lack of subject matter jurisdiction. In this facial attack under Federal Rule of Civil Procedure 12(b)(1) challenging the court's subject matter jurisdiction, we treat the allegations in the complaint as true, making the disposition of the motion a purely legal determination. Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 495-96 (3d Cir. 1987) . Our review is plenary. Id.

III.

Cudjoe's contention that the United States has waived sovereign immunity to private suits claiming money damages for failure to disclose lead-paint contamination draws on separate provisions in the Toxic Substances Control Act and the Residential Lead-Based Paint Hazard Reduction Act.*fn2 Specifically, he claims the waiver of sovereign immunity with respect to lead paint in 15 U.S.C. § 2688 exposes the United States not only to the Toxic Substances Control Act's penalties, but also to the private cause of action for treble damages under the Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 4852d(b)(3). Cudjoe argues these provisions provide him with a right to sue the Department of Veterans Affairs directly, without using the procedures set forth in the Federal Tort Claims Act.

We reproduce and summarize the provisions at issue. The waiver of sovereign immunity with respect to lead paint in the Toxic ...


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