Isn’t it ironic? Children can’t sue under federal lead-paint law

For many years, lead was a key component of paint.

Pigments used to color paint contained lead. Lead is highly opaque, so a little paint could go a long way — think “one-coat” coverage. Lead is also a very durable material and almost impervious to water, so a dirty wall could be scrubbed clean without affecting the painted finish.

But no paint job, not even a lead-based paint job, lasts forever. It eventually it cracks and peels, producing lead dust. The process also produces chips, which apparently taste sweet.

Kids just love ‘em.

But lead is toxic. Over time, if you get enough of it in you, it attacks the nervous system, among other things. You begin to act as if your brain has turned to mush. Some historians say this explains the often-insane behavior of ancient Roman nobility, who swilled wine from goblets made of lead.

Recognizing all of this, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act of 1992 (RLPHRA), 42 U.S.C. §§ 4851-4856. From Sixth Circuit Judge Richard Allen Griffin, writing in Roberts v. Hamer, et al.:

Congress enacted the RLPHRA based upon its findings that low-level lead poisoning, caused primarily by the ingestion of household dust containing lead from deteriorating or abraded lead-based paint, endangers the health and development of children living in as many as 3.8 million American homes. 42 U.S.C. § 4851.

The act requires property owners to disclose the potential presence of lead-based paint in residential structures and to provide information about how to guard against the paint’s dangers. If the disclosures aren’t made and the information is not provided, the act allows someone who buys a home or rents a residence, “the purchaser or the lessee” in the act’s words, to collect three times their provable damages.

Christina Roberts, whose two children were conceived and raised in an apartment, alleged that her landlords didn’t follow the act. She sued as next friend on behalf of her children, who, she alleged, were poisoned by lead paint in the apartment.

The federal district court dismissed the case.

Griffin agreed. Roberts’ children have no cause of action under the act, he said.

We consider … the text of the relevant provision. …

“Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual. 42 U.S.C. § 4852d(b)(3).”

The language plainly and expressly limits private recovery to a “purchaser or lessee” of target housing, and no one else. … “Where a statute names the parties granted the right to invoke its provisions, such parties only may act.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6-7 (2000) … .

Because the language is plain — indeed, it could not be more so — we stop here and hold that children of a lessee may not sue a lessor for violations of the RLPHRA’s disclosure requirements.

We decline to expand the cause of action or to infer an implied one where Congress has expressly created one. …

Congress created a cause of action for purchasers and lessees, not those who happen to benefit from the sales and leases, yet are not, themselves, purchasers or lessees.

All is not lost, noted Griffin, citing Mason ex rel. Heiser v. Morrisette, 403 F.3d 28 (1st Cir. 2005), for the proposition that children can pursue causes of action under state and local lead-paint abatement laws.

No quibble here with Griffin’s analysis. The quibble is with Congress, which enacted a law out of concern for millions of children who are at-risk for lead poisoning but didn’t provide the children with a federal remedy.

Frederick Douglass said it best, “At a time like this, scorching irony, not convincing argument, is needed.”

6th Circuit: Go ahead, take another crack at this

In the vast majority of the United States federal district courts, plaintiffs suing under the Americans with Disabilities Act must show that their disability was a “motivating factor” for being fired from their jobs.

But the bar is set much higher in Michigan, Ohio, Tennessee and Kentucky. The Sixth Circuit has ruled in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), that a plaintiff’s disability must be the “sole reason.”

And that’s the reason, Judge Gilbert S. Merritt wrote in Lewis v. Humboldt Acquisition Corp., a federal district court in Tennesse correctly rejected an ADA plaintiff’s proposed jury instructions, which contained the more generous “motivating factor” language.

But in doing so, there was a clear invitation to Lewis’ attorney, Michael L. Weinman of Jackson, Tenn., to move for an en banc hearing.

One panel of the Sixth Circuit can’t overrule another, Gilbert explained, citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685 (6th Cir. 1985), and 6th Cir. R. 206(c).

Gilbert noted that Salmi had tied the hands of four other panels previously asked to overrule Monette’s “sole reason” standard. In a footnote, Gilbert explained how to get past that:

To avoid the inefficiency of appealing to a panel that could not grant her the remedy that she seeks, Lewis could have filed a petition requesting that her appeal initially be heard en banc, rather than by this panel. See Fed. R. App. P. 35. Although en banc hearings are “not favored,” they may be ordered when “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a)(2).

One such example is a case in which a panel decision “conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.” Fed. R. App. P. 35(b)(1)(B). Of course, after this panel issues its opinion, Lewis may still move for rehearing en banc. See Fed. R. App. P. 40.

I asked Weinman if he was going to file the en banc motion.

“I sure am,” he said, adding that if that didn’t work in his favor, “this may be my shot at the Supreme Court.”

Weinman has tried the case twice. The first jury hung. The second deliberated “for several hours,” he said. Then, the jury sent out a note asking whether Lewis’ disability had to be the sole reason she was fired. The jury no-caused his client after getting the answer.

It’s a fairly safe bet the motion will be granted. Judge Richard Allen Griffin, concurring in Lewis, wrote:

[O]ur precedent on this issue of exceptional importance is misguided and contrary to the overwhelming authority of our sister circuits. Accordingly, the question appears appropriate for rehearing en banc. See Fed. R. App. P. 35(b)(1)(B).

We lifted the “sole reason” requirement from the Rehabilitation Act’s “solely by reason of her or his disability” language, see 29 U.S.C. § 794(a), and imported it into the ADA, reasoning in a footnote in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir. 1995), that “[t]he analysis of claims under the Americans with Disabilities Act
roughly parallels those brought under the Rehabilitation Act.” Monette, 90 F.3d at 1177- 78 (citing Maddox, 62 F.3d at 846 n.2).

As a super-majority of our sister circuits have held, however, the plain language of the ADA does not support application of the Rehabilitation Act’s “sole reason” standard.

The “super-majority” breaks down like this: there are 12 regional circuits; 10 have considered the issue; eight have adopted the “motivating factor” standard. The Sixth and Tenth Circuits use the “sole reason” standard.

We’ll keep an eye on this one.