3d Circuit Says No Waiver of Sovereign Immunity for Private Rights of Action under the Residential Lead-Based Paint Hazard Reduction Act

The Third Circuit in Cudjoe ex rel. Cudjoe v. Department of Veterans Affairs, 426 F.3d 241 (3d Cir. Oct. 13, 2005) recently held that the Toxic Substances Control Act's waiver of sovereign immunity for any federal, state, interstate, and local substantive and procedural requirements with respect to lead-based paint did not extend to the private action for treble damages under the Residential Lead-Based Paint Hazard Reduction Act:

At issue is whether the private right of action for treble money damages under the Residential Lead-Based Paint Hazard Reduction Act is one of the "substantive and procedural requirements" to which the government has waived immunity in 15 U.S.C. § 2688. Because a waiver of sovereign immunity must be unambiguously expressed and may not be implied, Pena, 518 U.S. at 192, 116 S.Ct. 2092, and must be strictly construed in favor of the sovereign, Orff, 125 S.Ct. at 2610, we will not interpret "substantive and procedural requirements" to include a private suit under 42 U.S.C. § 4852d(b)(3).

Notably absent from the listed examples of substantive and procedural requirements is any explicit reference to a private right of action for money damages. The only language in 15 U.S.C. § 2688 that perhaps comes close is the submission to any "civil penalty ... imposed[.]" But a civil penalty is defined as "a fine assessed for a violation of a statute or regulation." Black's Law Dictionary 1168 (8th ed.2004). The example given in the dictionary is "the EPA levied a civil penalty of $10,000 on the manufacturer for exceeding pollution limits." Id. Similarly, the Residential Lead-Based Paint Hazard Reduction Act itself distinguishes between "monetary penalties" (as enforced by HUD under 42 U.S.C. § 3545(f)) on the one hand, and "civil liability" on the other. Compare 42 U.S.C. § 4852d(b)(1) with 42 U.S.C. § 4852d(b)(3). Because an express, unambiguous waiver is required to waive sovereign immunity, we will not construe "civil penalty" under 15 U.S.C. § 2688 broadly to include the private suit for money damages available under 42 U.S.C. § 4852d(b)(3).