Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AVENAL POWER CENTER, LLC

ONE ALLEN CENTER, LEVEL 31

500 DALLAS STREET

HOUSTON, TX 77002

Plaintiff,

v. CIVIL ACTION NO.

U.S. ENVIRONMENTAL PROTECTION

AGENCY

1200 PENNSYLVANIA AVENUE, N.W.

WASHINGTON, DC 20004

and

LISA P. JACKSON, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION

AGENCY

1200 PENNSYLVANIA AVENUE, N.W.

WASHINGTON, DC 20004

Defendants.

ORIGINAL COMPLAINT

Plaintiff Avenal Power Center, LLC ("Avenal" or the "Company"), by and through its

attorneys, files this complaint against the United States Environmental ProtectionAgency and Lisa P.

Jackson, Administrator ofthe United States Environmental Protection Agency (the "Administrator")

(collectively, "Defendants" or "EPA") and alleges and says as follows:

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Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 2 of 16

NATURE OF THE ACTION

1. This is a citizen suit to enforce the Clean Air Act ("CAA" or "the Act"), brought

under section 304(a)(2) ofthe CAA, 42 U.S.C. 7604(a)(2), against the Defendants for their failure

to perform a mandatory duty required by the Act.

2. Since August 2007, the Company (and its predecessor, Federal Power Avenal, LLC)

has been working with EPA to secure the necessary approvals to construct a state-of-the-art 600

megawatt natural gas-fired power plant, known as the Avenal Energy Project (the "Project")

3. Under the Act, construction on the Project caimot begin until EPA issues a

"Prevention of Significant Deterioration" ("PSD") permit, to ensure, among other things, that the

Project will not violate any air quality standards and will have the "best available control technology"

to control certain air emissions. 42 U.S.C. 7470-7492.

4. The permit conditions imposed by the San Joaquin Valley Air Pollution Control

District and already accepted by the Company are sufficient to ensure that the Project meets all the

requirements ofthe Clean Air Act. In fact, the Project will be among the cleanest power plants in the

world.

5. The initial PSD permit application for the Project was submitted to EPA in February

2008, and EPA notified the Company by letter dated March 19, 2008, that the PSD permit

application was complete.

6. Under Section 165(c) ofthe CAA, 42 U.S.C. 7475(c), EPA is required to take final

action on a PSD permit application within one year ofreceiving the complete application. By law,

Defendants should have granted or denied the PSD permit for the Project no later than March 19,

2009.

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Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 3 of 16

7. Despite repeated requests from the Company asking Defendants to take final action

on the PSD permit application, Defendants have disregarded and continue to disregard their statutory

duty to act on the PSD permit application.

8. Defendants' failure to comply with their mandatory duty has had, and will continue to

have, substantial adverse economic impacts on the Company.

THE PARTIES

9. Defendants are the United States Environmental Protection Agency and Lisa P.

Jackson, Administrator ofthe United States Environmental Protection Agency. Both are located and

have their principal place ofbusiness at 1200 Pennsylvania Avenue N.W., Washington, DC 20004.

Pursuant to Federal Rule of Civil Procedure 4(i) and 42 U.S.C. 7604(c)(3), EPA may be served

with process by delivering a copy ofthe summons and complaint via registered or certified mail to

the United States attorney for the district in which this action is brought, to the Attorney General of

the United States, and to the EPA Administrator.

10. The Company, Avenal Power Center, LLC, is the developer of the Project. The

Company is a "person" within the meaning of Section 302(e) of the Act, 42 U.S.C. 7602(e).

JURISDICTION AND VENUE

11. This Court has jurisdiction over the subject matter ofthis action pursuant to section

304(a) ofthe Act, 42 U.S.C. 7604(a), and 28 U.S.C. 1331.

12. Venue is proper in this Court pursuant to section 304(a) and 28 U.S.C. 1391(e).

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Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 4 of 16

BACKGROUND

A. Statutory and Regulatory Background

13. The Act creates a detailed and comprehensive legal framework designed to protect

and enhance the quality of the nation's air while at the same time allowing for economic

development.

14. Part C of Title I of the Act, 42 U.S.C. 7470-7492, sets forth permitting

requirements for power plants and other major industrial facilities to be built in areas that already

meet federal air quality standards for clean air. These requirements are designed to protect public

health and welfare and to ensure that economic growth will occur in a manner consistent with the

preservation of existing clean air resources. These provisions are generally referred to as the PSD

program.

15. As set forth in Section 165, 42 U.S.C. 7475, and 40 C.F.R. 52.21, any person

proposing to construct a major stationary source in an attainment area must first obtain a PSD permit.

16. Under the PSD program, a "major stationary source" is defined to include fossil fuelfired steam electric plants of more than 250 million British thermal units (Btu) per hour heat input

which emit or have the potential to emit one hundred tons per year or more of any regulated air

pollutant. 40 C.F.R. 52.21(b)(1)(i)(a).

17. Section 165(c) of the Act states:

Any completed permit application under [the PSD program] for a major

emitting facility in any area to which this part applies shall be granted or

denied not later than one year after the date of filing of such completed

application.

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Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 5 of 16

42 U. S.C. 7475(c). Section 165(c) establishes a clear, nondiscretionary duty on EPA to take final

action on a PSD permit application within twelve months after receiving a complete permit

application.

B. The Project's PSD Permit Application

18. The Project is a major stationary source that the Company has proposed to construct

in an area designated as attaining the National Ambient Air Quality Standards.

19. Since August 2007, the Company has been working with EPA to secure a PSD permit

for the Project.

20. The PSD permit application for the Project was submitted to EPA in February 2008.

21. EPA issued a letter finding the application to be complete on March 19, 2008. A true

and correct copy of this letter is attached to this Complaint as Exhibit A and incorporated by

reference herein.

22. Under Section 165(c) ofthe Act, 42 U.S.C. 7475(c), Defendants were required to

take final action on the PSD permit application for the Project no later than March 19, 2009.

Defendants have disregarded their nondiscretionary duty and still have not taken final action on the

permit, even though the statutory deadline for such action was almost a year ago.

NOTICE

23, Section 304(a)(2) of the Act, 42 U.S.C. 7604(a)(2), provides that:

Except as provided in subsection (b) of this section, any person may

commence a civil action on his own behalf.... against the Administrator

where there is alleged a failure of the Administrator to perform any act or

duty under this chapter which is not discretionary with the Administrator.

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Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 6 of 16

24. Section 304(b)(2) ofthe Act, 42 U. S.C. 7604(b)(2), provides that ''no action may be

commenced... under subsection (a)(2) ofthis section prior to 60 days after the plaintiff has given

notice of such action to the Administrator."

25. Plaintiffgave actual notice to Defendants ofits intent to file this civil action in a letter

addressed to the Administrator dated December 21, 2009 (the "Notice Letter"). A true and correct

copy ofthe Notice Letter is attached to this Complaint as Exhibit B and is incorporated by reference

herein. This Notice Letter satisfies the pre-suit notice requirement of section 304(b) ofthe Act, 42

U.S.C. 7604(b).

26. The 60-day period required by section 304(b) of the Act, 42 U.S.C. 7604(b),

between issuance of the Notice Letter and con-n-nencement ofthis civil action expired on February

22, 2010.

CLAIM FOR FAILURE TO PERFORM NONDISCRETIONARY DUTY

27. Paragraphs 1 through 26 are realleged and incorporated herein by reference.

28. Defendants have failed to perform their nondiscretionary duty under section 165(c) of

the Act, 42 U.S.C. 7475(c), to either grant or deny the completed PSD permit application for the

Project not later than one year after the date of filing of such completed PSD permit application.

29. Absent an appropriate order ofthis Court, Defendants will continue to disregard this

statutory duty and not render a decision on the PSD permit for the Project.

30. As provided in sections 304(a) and (d) of the Act, 42 U.S.C. 7604(a) and (d),

Defendants' failure to perform their nondiscretionary duty subjects them to injunctive relief, costs,

and attorneys' fees for this action that this Court determines appropriate.

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Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 7 of 16

PRAYER FOR RELIEF

WHEREFORE, the Company requests that this Court:

Order Defendants to immediately grant or deny the PSD permit application for the

Project as required by the CAA;

2. Order Defendants to take other appropriate actions to remedy, mitigate, and offset the

harm to Plaintiff caused by Defendants' disregard of their statutory duty;

3. Award Plaintiff its attorneys' fees and costs ofthis action; and

4. Grant such other relief as the Court deems just and proper.

Dated: riql, L.3.1 C5. 2 01 0

Respectfully submitted,

BRACEWELL & GIULIANI LLP

LINIC`

effrey. Ha/ d

ki C. arN‘. 45 974

Bracewell & Giuliani LLP

2000 K St., NW, Suite 500

Washington, DC 20006-1872

Telephone: (202) 828-5852

Telecopier (202) 857-4812

Jeffholmstead@bglip. coin

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Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 8 of 16

EXHIBIT A
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 9 of 16

T)7i,1"'Es.1; ENVt tt cr• .icf i.3

a.

san

March 19, 2008

Nit. Stuart Zisman

AvenalPower Center, LLC

500 Datlas Street, Level 31

Houston, 'IN 77002

Subject: .Prevention of Significant Deterioration Appbcation .No, 08-S,1-01

.Avenal Power Center, LLC

Menai Energy Project., Avenal, California

Dear 1V1r. Zisman;

This letter is in response. to Avenal Power Center, LLCS application for a

Prevention ofS.n4allicant Deterioration (PSI)) Permit for the Avenal Power Center,

LIC's Avenal f.'`, nergy Project, The application was submitted with the letter or

transmittal dated February 15, 2008 and received by this office on February 20, 2003.

Additional application copies t'lo WM': provided on March 3, 2008, The application k

for the construction and operation of a 600 MW combined-cycle electric power

ir,enerating plant mid ancillary facilities. The proposed projectwill be located between the

San I iii s Canal (Calitbrnia Aqueduct) aod the Avenal Cutoff Road, six Miles northeast of

the City of.Avenal ma Kings County, Califbrnia.

After our review of the above application, as well as follow-up information

submitted per our request and received on March 14. 2008 and March 17. 2008, we have

determined that the P,SD permit application is administratively complete as of March 19,

2008. A preliminary determination, which will include an Ambient Air Quality Impact

Report (AAQ1R) and draft permit, is being developed. However, it is possible that we

wi If need clarifying information on one or inure parts or the application before. we can

issue a draft permit.

'this notification of administrative completeness does not imply that the :ETA

agrees with any analyses, conclusions or positions contained in the application. Also, if

you should request a suspension in the processing of the application, or submit: new

information indicating a significant change in the project design, ambient impact or

emissions, this determination ofadministrative completeness may be re,.:i.sed,
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 10 of 16

Upon iSStla rice Of the preliminary determination, We will publish a public notiee

of our intent to issue the permit. The comment period specified in the notice shall he at

least 30 days.

Please be advised that; at any time. anyone may have full access to the applicadon

materials and other MIOrmation you provide to us in connection with this permit action.

There fOre, we are informing you ofyour riLthts to claim business conlidentiality under

40 CFR Subpart 13 lor any part of or all of the information you provide us, lf you do

not make a claim ofconfidentiality [br any or this material within 15 days of the date you

receive this letter you will have waived your right to do so. The facility name and

address may not he claimed as confidential.

11 you wish to claim confidentiality, you must substantiate your claim. Your

substantiation must address the points enumerated in the attachment to this letter> it1

accordance with 40 CFR 2,204(0.

IT you have any questions concerning the lin/3M of your application, please

4.:ontact Shirley F. Rivera, Environmental Engineer, of my staff at (415) 972-3966. For

questions regarding confidentiality claims. please contact. Ann Lyons at (415) 972-3S83.

Eor air quality modeling questions, please contact Carol Bohnenkamp at (415) 947-4130.

Sincerely,

/fie

Vitn'i V

(ierardo Rios

(Thiel Permits Office

Attachment

cc; Jim Rexroad, Avenal Power Center, FIX

Robert Fletcher, California Air Resource Board

Christopher Meyer, California Energy Commission

Derek Fukuda, San Joaquin Valley APCD

Dave Warner, San Joaquin Valley APCD

Eric Walther, Sierra Research

2
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 11 of 16

'Distribution_qf conies:

Jim Rex.road

Avenal 'Power Center, LLC

500 Dallas Street, 'Level 31

.1-10 usto n. TX 77002

Robert Fletcher, Division Chief

Stationary Source Division

California Air Resources Board

1001 "r- Street

P.O. Box 2815

Sacramento, CA 95812

Christopher Meyer, Project Manager

California Energy Commission

1516 9th Street, MS-15

Sacramento, CA 95814

Derek Fukuda, .Air Quality Engineer

San Joaquin Valley APCD

1990 .E. Gettysburg Ave.

Fresno, CA 937726

Dave Warner, Director, Permit Services

San Joaquin Valley APCD

1990 E. Gettysburg Ave.

Fresno, CA 93726

Eric Walther

Sierra Research

1801 J Street

Sacramento, CA 95814

3
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 12 of 16

ATTACHMENT

INSTRUCTIONS FOR CLA lm CONFIDENTJALITY

A. Pursuant to 40 CFR 2.204(e), your claim must address these points:

I. The portions of the inkrmation alleged to be entitled to confidential

treatment;

it. The period of time for which confidential treatment is desired by the business

(e.g., until the occu.rrence of:a specific event, or permane.ntly);

iii. The purpose for which the information was l'urnished to EPA and the

appropriate (late of submission, if known;

iv. 'Whether a business confidentiality claim accompanied the information when

it was received by EPA;

v, Measures taken by you to guard against. the .undesited disclosure ofthe

information to others:

vi. The extent to which the information has 'been disclosed to others and the

precautions taken in connection therewith;

Pertinent confidentiality determinations, if any, by EPA or other 'Federal

agencies, and a copy of any such determination or reference to it, ifavailable;

viii.Whether you assert that disclosure of this information would be likely .to

result in substantial harintUl effects on your business's competitive position,

and if so, what those harmful effects would be, why they Shduld be viewed as

substantial; and an explanation of the casual relationship between disclosure

and such harmful effect, and

ix. Whether you assert that the information is .voluntarily submitted information

and if so, whether any disclosure of the information would tend to lessen the

availability to EPA of simihir information in the future. "Voluntarily

submitted information" is defined in 40 CFR Section 2.201(1) as business

information in EPA's possession.

a) The submission of which EPA has no statutory or contractual authority

to require; and

b) The submission of which was not prescribed by statute or regulation as

a condition ofobtaining some benefit (or avoiding some disadvantage)
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 13 of 16

under a regulatory program ofgeneral apphcability, including such

regulatory programs as permit, hcensing, 'registration, or certification.

programs, but excluding programs concerned solely o.r primarily with.

the award or administration by EpA of contracts or grants.

B. We will diloe in Formation covered by your claim only to the extent provided

for in 40 CFR Part 2, Subpart B Confidentiality of Business Informatkm. Please

address your claim and sLzhst;:tatiadon of confidentiality to the staliperson

mentioned in the letter at Region 9 (A ER-3), 75 Hawthorne Street, San

Francisco. CA 94105.
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 14 of 16

EXHIBIT B
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 15 of 16

BRACI Texas

New York

Jeffrey R. Holmslead

Partner

&GIULIANI Washington, DC

Conneoticut 202.828, 5552 Office

Dubai 202,8574812 Fax

Kazakhstan

London jeff.holmstead@bglfia.com

Bracewell & Oiuiiani LLP

2000 K Street NW

Suite 500

Washington, DC

20006-1872

December 21, 2009

By Messenger and Electronic Mail

The Honorable Lisa Jackson

Administrator

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

RE: Notice of Intent to Sue EPA for Its Failure to Act on Avenal PSD Permit as required

by the Clean Air Act

Dear Ms. Jackson:

I am writing on behalf of Avenal Power Center, LLC ("Avenal Power"), the applicant

for a Prevention ofSignificant Deterioration (PSD) permit for the proposed Avenal Energy

Project ("Avenal") (permit number SJ 08-01). In accordance with section 304 ofthe Clean

Air Act, 42 U.S.C. §7604(a)(2), this letter shall serve as formal notice ofAvenal Power's

intent to file suit against the U.S. Environmental Protection Agency (EPA) for EPA's failure

to perform its mandatory duty under the Clean Air Act to issue the PSD permit for Avenal in

a timely fashion.

Section 165(c) of the Clean Air Act requires EPA to take final action on a PSD permit

within 12 months after receiving a complete permit application. 42 U.S.C. §7475(c). Averial

Power submitted its permit application on February 15, 2008, and EPA notified Avenal

Power that its PSD permit application was complete on March 19, 2008. Thus, by statute,

EPA should have taken final action on the Avenal permit more than 9 months ago.

Section 304 of the Clean Air Act authorizes civil actions against the Administrator to

compel him or her to perform any act or duty that is not discretionary under the Clean Air

Act. 42 U.S.C. §7604(a)(2). The Administrative Procedure Act, 5 U.S.C. 706, as well as

Section 304 of the Clean Air Act, also authorizes lawsuits to compel EPA to take actions,

such as permitting decisions, that have been unreasonably delayed. This letter provides the

necessary notice required before such actions can be filed, which may occur sixty (60) days

(for a mandatory duty suit) and one-hundred and eighty (180) days (for a suit based on EPA's
Case 1:10-cv-00383-RJL Document 1 Filed 03/09/10 Page 16 of 16

The Honorable Lisa Jackson

December 21, 2009

Page 2

unreasonable delay) from the date ofthis letter. 42 7604. IfAvenal Power finds it

necessary to file any such action, it will seek all appropriate relief, including injunctive,

declaratory, monetary, and any other relief as may be awarded by a court of competent

jurisdiction.

This permitting action is straightforward and does not raise any unusual issues,

Avenal Power has proposed to construct a natural gas-fired combined cycle generating

station that would employ state-of-the-art control technology for minimizing emissions. The

Company and its expert consultants have worked cooperatively with EPA throughout the

permitting process to ensure that the Agency has everything it needs to process the permit

application and issue the permit. From the very beginning, Avenal Power has made it clear

that time was of the essence because of financial commitments the Company was required to

make, and that it was relying on EPA issue the permit in accordance with the schedule set by

Congress. Even though this deadline passed many months ago, the Company has been

somewhat reassured by statements from EPA officials that the permit would be issued before

the end ofthe year. It now appears, however, that this schedule is in doubt.

The comment period, which had been extended to accommodate everyone who had

raised any concerns about the proposed project, ended more than two months ago. Even so,

there were relatively few comments on the proposed permit, and these comments do not raise

any new or difficult issues. We simply do not understand why it has taken so long to finalize

a PSD permit for a state-of-the-art combined cycle gas-fired power plant.

We still hope that the Agency will issue the permit by year end and that it will not be

necessary for us to bring a lawsuit to force the EPA to issue a permit that, by law, it should

have issued almost a year ago. However, unless the Agency acts within the 60-day notice

period, we are prepared to file a complaint seeking all appropriate remedies from a court of

competent jurisdiction.

Very truly yours,

reyR.4-c.fio stead

e(Ak.,

Bracewell & Giuliani LLP

CC: Laura Yoshii, EPA Region 9 (by electronic mail)

Deborah Jordan, EPA Region 9 (by electronic mail)

Kerry Drake, Region 9 (by electronic mail)

Gerardo Rios, EPA Region 9 (by electronic mail)

Gina McCarthy, OAR (by electronic mail)

Bill Haxnett, OAR/OAQPS (by electronic mail)

Brian Doster, OGC (by electronic mail)
/05 DC)

Case 1:10-cv-00383-RJL Document 1-1 Filed 03/09/10 Page 1 of 2

C

CIVIL COVER SHEET 10-32a

.1S-44

I (a) PLAINTIFFS DEFENDANTS

U S. Environmental Protection Agency and Lisa P Jackson, in her Avenal Power capacity Center, LLC as Administrator of the United States Environmental Protection Agency

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT

(IN U.S. PLAINTIFF CASES ONLY)

(b) COUN TY OF RESIDENCE OF FIRST LISTED PLAINTIFF NOTE IN L AND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF

(EXCEPT IN U.S. PLAINTIFF CASES) LAND INVOLVED

(c) A FTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)

Jeffrey R Holmstead, Bracewell & Giuliani LLP Case: 1:10-cv-00383

2000 K St, NW, Suite 500

Washington, DC 20006-1872 Assigned To: Leon, Richard J.

Telephone. (202) 828-5852 Assign. Date: 3/9/2010

Description: Admn Agency Review

II. BASIS OF JURISDICTION III CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX

FOR PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

(PLACE AN x IN ONE BOX ONLY)

0 1 U S Government 0 3 Federal Question

PTF DFT PTF DFT

Plaintiff (ll S Government Not a Party) Citizen of this State 0 1 0 I

Incorporated or Principal Place 0 4 0 4

of Business in This State

9® 2 U S Government 0 4 Diversity

Defendant (Indicate Citizenship of Citizen ofAnother State 0 2 0 2 Incorporated and Principal Place 0 0 5

Parties in item III) of Business in Another State

Citizen or Subject of a 0 3 0 3

Foreign Country Foreign Nation 0 6 0 6

IV. CASE ASSIGNMENT AND NATURE OF SUIT

(Place a X in one category, A-N, that best represents your cause of action and one in a corresponding Nature of Suit)

0 A. Antitrust 0 B. Personal Injury/ ()C. Administrative Agency 0 D. Temporary Restraining

Malpractice Review Order/Preliminary

Injunction

1 1 151 Medicare Act

1 1 410 Antitrust 1 1 310 Airplane Any nature of suit from any category may Social Security: El3• 15 Airplane Product Liability be selected for this category of case

ri 861 HIA ((1395M I 1 320 Assault, Libel & Slander assignment. r---i ni3•30 Federal Employers Liability

862 Black Lung (923)

1 I 340 Marine 1 1 863 DIWC/D1WW (405(g) "(IfAntitrust, then A governs)*

345 Marine Product Liability 1 1 864 SSID Title XVI

r 1 350 Motor Vehicle 1 1 865 RSI (405(g)

E1 355 Motor Vehicle Product Liability

Other Statutes

CD 360 Other Personal Injury I 1 891 Agricultural Acts

I 1 362 Medical Malpractice I I 892 Economic Stabilization Act

El3•65 Product Liability (l1 1

id) 893 Environmental Matters

1 1 368 Asbestos Product Liability

'894 Energy Allocation Act

n1 890 Other Statutory Actions (If

Administrative Agency is Involved)

0 E. General Civil (Other) OR 0 F. Pro Se General Civil

Real Property Bankruptcy Forfeiture/Penaltv

1 1210 Land Condemnation 1 1422 Appeal 28 USC 158 El 610 Agriculture El 470 Racketeer Influenced &

1 1220 Foreclosure I I 423 Withdrawal 28 USC 157 Fl 620 Other Food &Drug Corrupt Organizations

ni 230 Rent, Lease & Ejectment 1-1 625 Drug Related Seizure r---i 480 Consumer Credit

I 1240 Torts to Land Prisoner Petitions of Property 21 USC 881 1 1 490 Cable/Satellite TV

I 12,45 Tort Product Liability El 535 Death Penalty I I 630 Liquor Laws r-i 810 Selective Service

1 1290 All Other Real Property 1 1 540 Mandamus & Other 1 640 RR & Truck 1 1 850 Securities/Commodities/

El 550 Civil Rights I I 650 Airline Regs Exchange

Personal Property I 1 555 Prison Condition I 1 660 Occupational 1 1 875 Customer Challenge 12 USC

E1370 Other Fraud Safety/Health 3410

r—1.57f cruth in Lemling Property Rights 690 Other Lj 900 Appeal of fee determination

i r

1 1380 Other Personal Property Damage 1-1 820 Copyrights under equal access to Justice

El 385 Property Damage Product Liability ri 830 Patent 1 1 950 Constitutionality of State

F---] 840 Trademark Other Statutes Statutes

I 400 State Reapportionment E] 890 Other Statutory Actions (if

Federal Tax Suits 1 1 430 Banks & Banking not administrative agency

1 1870 Taxes (US plaintiff or F-1450 Commerce/ICC review or Privacy Act

defendant Rates/etc. CI ED 871 IRS-Third Party 26 I 1460 Deportation

USC 7609
I.

RECOR

aint

Case 1:10-cv-00383-RJL Document 1-1 Filed 03/09/10 Page 2 of 2

0 G. Habeas Corpus/ 0 H. Employment 0 I. FOL4/PRIVACY 0 J. Student Loan

2255 Discrimination ACT

1-1 152 Recovery ofDefaulted

I I 530 Habeas Corpus-General Fl 442 Civil Rights-Employment El 895 Freedom of Information Act Student Loans

I

I 510 Motion/Vacate Sentence (criteria: race, gender/sex, F-1 890 Other Statutory Actions (excluding veterans)

national origin, (if Privacy Act)

discrimination, disability

age, religion, retaliation)

*(If pro se, select this deck)* *(If pro se, select this deck)*

0 K. Labor/ERISA 0 L. Other Civil Rights 0 M. Contract 0 N. Three-Judge Court

(non-employment) (non-employment) I 1 110 Insurance FT 441 Civil Rights-Voting

I I 120 Marine (ifVoting Rights Act)

E..] 710 Fair Labor Standards Act I I 441 Voting (if not Voting Rights I 1 130 Miller Act

I 720 Labor/Mgmt. Relations Act) ni 140 Negotiable Instrument

I 730 Labor/Mgmt. Reporting & El 443 Housing/Accommodations I I 150 Recovery of Overpayment &

Disclosure Act =I 444 Welfare Enforcement ofJudgment

I I 740 Labor Railway Act E:I 440 Other Civil Rights rl 153 Recovery of Overpayment of

I 1 790 Other Labor Litigation 1-1 445 American w/Disabilities- Veteran's Benefits

I I 791 Empl. Ret. Inc. Security Act Employment El 160 Stockholder's Suits

I I 446 Americans w/Disabilities- ED 190 Other Contracts

Other Fl 195 Contract Product Liability

I I 196 Franchise

V. ORIGIN

1 Original 0 2 Removed 0 3 Remanded from 0 4 Reinstated 0 5 Transferred from 0 6 Multi district 0 7 Appeal to

Proceeding from State Appellate Court or Reopened another district Litigation District Judge

Court (specify) from Mag. Judge

CIV. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSEJ,

1

42 U S.0 7604(a)(2), against the Defendants for their failure to perform a mandatory duty required by law,

VII. REQUESTED IN CHECK IF THIS IS A CLASS DEMAND Attorney fees and costs: Check YES only ifdernande.uji pl;

COMPLAINT I I ACTION UNDER F R C P 23 JURY DEMAND: YES I I NO 0

VIII. RELATED CASE(S) (See instruction) YES L I NO Ifyes, please complete related case form

IFANY.

DATE,,,,j 0 SIGNATURE OF ATTORNEY OF

INSTRUCTIONS FOR COMPLETING‘GOIL COVER TCET JS-44

Authority for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleadings or other papers as required by

law, except as provided by local rules of court This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use ofthe Clerk of

Court for the purpose of initiating the civil docket sheet Consequently a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint Filed Listed below are tips

for completing the civil cover sheet These tips coincide with the Roman Numerals on the Cover Sheet

COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence Use 11001 to indicate plaintiff is resident of

Washington, D C, 88888 if plaintiff is resident of the United States but not ofWashington, D.0, and 99999 if plaintiff is outside the United States

CITIZENSHIP OF PRINCIPAL PARTIES This section is completed only if diversity of citizenship was selected as the Basis ofJuriscliction under Section

II

IV. CASE ASSIGNMENT AND NATURE OF SUIT The assignment of a judge to your case will depend on the category you select that best represents the

primary cause of action found in your complaint You may select only one category You must also select one corresponding nature of suit found under

the category of case

VI. CAUSE OF ACTION Cite the US Civil Statute under which you are filing and write a brief statement ofthe primary cause

VIII. RELATED CASES, IF ANY If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk's

Office

Because of the need for accurate and complete information, you should ensure the accuracy ofthe information provided prior to signing the form