United States Court of Appeals

For the First Circuit

No. 04-1908

JACOB C. MASON, BY HIS GUARDIAN, RICHARD HEISER, ESQ.;

NATASHA A. MASON, BY HER GUARDIAN, RICHARD HEISER, ESQ.,

Plaintiffs, Appellants,

v.

JAMES P. MORRISETTE; JOSEPH M. GRIFFITHS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr. U.S. District Judge]

Before

 Torruella, Circuit Judge,

Coffin and Stahl, Senior Circuit Judges.

Neil T. Leifer, with whom Allyson S. Hauck, Thornton & Naumes,

and Christopher J. Seufert, were on brief, for appellants.

Sean T. O'Connell, with whom Shaheen & Gordon, P.A., was on

brief, for appellee Griffiths.

Stephen J. Dibble, with whom Robert T. Mittelholzer and

Mittelholzer & Dibble, PLLC, were on brief, for appellee

Morrisette.

April 7, 2005
1All references throughout the opinion to the United States

Code are to 42 U.S.C.

2Prior to moving to the Bow Street apartment, the Masons

resided at 94-95 Franklin Street in Franklin, New Hampshire, from

December 1, 1996 to May 21, 1997, in an apartment owned at all

relevant times by Appellee Morrisette. In the Appellants'

complaint to the district court, they stated that both Jason and

Natasha were tested for lead poisoning and were determined to have

high blood lead levels during the time they resided on Franklin

Street. The Appellants stated that their mother complained to

Appellee Morrisette regarding a possible lead paint hazard in the

Franklin Street apartment, and that Appellee Morrisette suggested

that the Masons move to the West Bow Street apartment. These facts

are not relied on nor discussed by the Appellants in their brief to

this court.

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STAHL, Senior Circuit Judge. The issue presented in this

appeal is whether a lessee's minor children have standing to sue a

lessor for failure to disclose information regarding the hazards of

lead paint as required by the Residential Lead-Based Paint Hazard

Reduction Act ("RLPHRA"), 42 U.S.C. § 4851, et. seq.1 We find that

they do not.

I. BACKGROUND

Plaintiffs-Appellants Jason C. Mason and Natasha A. Mason

are minor children who resided with their mother, Lisa Mason, at

18-A West Bow Street, Franklin, New Hampshire from May 21, 1997

until July 2, 1998. During that time, the property was first owned

by Appellee James P. Morrisette and then was subsequently

transferred to Appellee Joseph M. Griffiths.2 On September 29,

1997, Natasha was examined and found to have high levels of lead in

her blood. As a result, on October 15, 1997, the New Hampshire
3It is not clear from the record, and the Appellants declined

to provide an explanation at argument, why Lisa Mason, as the

mother of Jason and Natasha, did not bring the suit against the

Appellees.

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Division of Health Services inspected the West Bow Street apartment

for lead paint and found significant lead contamination. Appellee

Griffiths was ordered by the state to abate the lead hazards

discovered during the inspection but did not comply. Both Jason

and Natasha were subsequently tested and their blood contained

dangerous amounts of lead. On July 2, 1998, the state of New

Hampshire provided the Masons with emergency housing so that they

could vacate their lead-ridden apartment.

Natasha and Jason, through their guardian and attorney

Richard Heiser, brought suit in the United States District Court

for the District of New Hampshire alleging that the Appellees

violated the RLPHRA.3 In their complaint, they also raised several

state law claims including that the defendants violated the New

Hampshire Consumer Protection Act, were negligent in failing to

maintain both the Franklin Street and West Bow Street buildings,

and misrepresented that the West Bow Street building was lead-free.

Defendants Morrisette and Griffiths moved to dismiss the

RLPHRA claims, arguing that the leasehold in question was pursuant

to an oral lease, and that the protections and remedies of the

RLPHRA apply only to written leases. The district court, before

ruling on the defendants' motion to dismiss, requested sua sponte
4The district court then declined to exercise supplemental

jurisdiction over the Appellants' remaining state law claims.

 We note that because the district court granted the

Appellees' motion to dismiss based on the Appellants' lack of

standing, the issue of whether the disclosure provision of the

RLPHRA applies to oral leases is not before this court.

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that the parties address the issue of whether the minor children of

a lessee have standing to sue the lessor under the RLPHRA. After

reviewing the parties' submissions, the district court granted the

defendants' motion to dismiss, holding that the minor children were

not "lessees" for purposes of the RLPHRA and therefore had no

statutory standing to seek remedies under that statute.4

The Appellants filed this timely appeal, arguing that the

district court committed reversible error when it ruled that the

minor children did not have standing because the plain language of

the RLPHRA, along with the legislative history and the regulations

implementing the RLPHRA, make it clear that the statute was enacted

to protect children residing in residential property from lead

poisoning, and thus Congress intended for the minor children of

lessees to have standing under the civil liability provision. The

Appellants contend that the district court's interpretation of the

statute produces an absurd result because it provides that only the

adult lessee may seek damages for violations of the disclosure

provision of the RLPHRA when it is actually the children of the

adult lessees, not the adults themselves, who are the ones likely

to suffer injury from such violations. Finding that the plain
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language of the statute limits the private cause of action to a

"purchaser or lessee," and because the Mason children cannot be

considered either, we affirm.

II. ANALYSIS

We review a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) de novo, and we ask whether the wellpleaded facts, taken as true, justify recovery on any supportable

legal theory. See Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir.

2000). Thus, for purposes of our review of the district court's

motion to dismiss, we assume that the defendants were obligated to

disclose under the RLPHRA, that they did not disclose in violation

of the RLPHRA, and that Natasha and Jason's lead poisoning was

caused by the defendants' violation of the statute. With these

assumptions, we turn to our review of the statute.

A. The Statutory Scheme

The RLPHRA was enacted in 1992 in an effort, among other

things, "to develop a national strategy to build the infrastructure

necessary to eliminate lead-based paint hazards in all housing as

expeditiously as possible" and to "educate the public concerning

the hazards and sources of lead-based paint poisoning and steps to

reduce and eliminate such hazards." § 4851a(1), (7). The Act was

the response to congressional findings that "low-level lead

poisoning is widespread among American children, afflicting as many

as 3,000,000 children under age 6," § 4851(1); that "the health and
5"Target housing" is defined in the RLPHRA as "any housing

constructed prior to 1978," with a few limited exclusions.

§ 4851b(27).

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development of children living in as many as 3,800,000 American

homes is endangered by chipping or peeling lead paint, or excessive

amounts of lead-contaminated dust in their homes," § 4851(5); and

that "the danger posed by lead-based paint hazards can be reduced

by abating lead-based paint or by taking interim measures to

prevent paint deterioration and limit children's exposure to lead

dust and chips," § 4851(6).

As part of a comprehensive plan to reduce the hazards of

lead-based paint in the national residential housing stock, the

RLPHRA provided the statutory framework to require the disclosure

of information concerning lead hazards upon the transfer of

residential property. § 4852d. It is this "disclosure provision"

that is the subject of the case before us today.

The disclosure provision of the RLPHRA directs the

Secretary of the Department of Housing and Urban Development

("HUD") and the Administrator of the Environmental Protection

Agency ("EPA") to "promulgate regulations . . . for the disclosure

of lead-based paint hazards in target housing which is offered for

sale or lease." § 4852d(a)(1).5 The statute goes on to state: 

The regulations shall require that, before the purchaser

or lessee is obligated under any contract to purchase or

lease the housing, the seller or lessor shall—

(A) provide the purchaser or lessee with a lead hazard

information pamphlet . . . ;
6The ten-day inspection period is only for purchasers of

target housing and does not apply to lessees of target housing.

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(B) disclose to the purchaser or lessee the presence of

any known lead-based paint, or any known lead-based paint

hazards, in such housing . . . ; and 

(C) permit the purchaser a 10-day period . . . to conduct

a risk assessment or inspection for the presence of leadbased paint hazards.6

§ 4852d(a)(1).

The statute also provides for an array of penalties for

violations of the disclosure provision including a civil liability

remedy which states: "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." § 4852d(b)(3). The HUD and

the EPA have jointly promulgated regulations implementing Section

4852d, and have defined lessee to mean "any entity that enters into

an agreement to lease, rent, or sublease target housing, including

but not limited to individuals, partnerships, corporations, trusts,

government agencies, housing agencies, Indian tribes, and nonprofit

organizations." 40 C.F.R. § 745.103; 24 C.F.R. § 35.86. The issue

we must decide is whether Congress intended for the minor children

of lessees to have standing to enforce this civil liability

provision against landlords who violate the disclosure provision.

B. Our Review of the Statute

In our review of § 4852d(b)(3), we must first ask whether

it is clear that Congress intended either to limit the term
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"lessee" to a party who legally enters into a lease with a lessor

or to permit the minor children who reside with the lessee to

enforce the disclosure provision. See Bryson v. Shumway, 308 F.3d

79, 84 (1st Cir. 2002) ("If the meaning of a statute is clear, we

enforce that meaning."). Here, the plain language of the statute

limits recovery under § 4852d(b)(3) to a "purchaser or lessee." We

find this limitation not only clear, but also consistent with the

purpose of the disclosure provision--to provide the purchaser or

lessee of target property with notice that there could be a leadbased paint hazard present in the subject premises, and the

opportunity to either decline to enter into a contract regarding

the premises or proceed forward with the transaction in the face of

the knowledge that a lead-based paint hazard could be present. See

§ 4852d(a)(1). This disclosure provision does not require the

seller or lessor to abate the lead-paint hazard, nor disqualify a

purchaser or lessee with young children from occupying a property

that possibly contains lead-based paint hazards. Thus, because a

violation of the statute occurs when the seller or lessor fails to

disclose, it is logical that the party harmed by the failure to

disclose is the purchaser or the lessee. See Gladysz v. Desmarais,

No. Civ. 02-208-B, 2003 WL 1343033, at *2 (D.N.H. March 17, 2003)

(unpublished) ("The civil liability provision in RLPHRA is within

the 'disclosure' section and as such, it is both logical and

reasonable to read the civil liability to cover only purchasers or
7The Appellants cite Sipes v. Russell, 89 F. Supp. 2d 1199

(D. Ks. 2000) as evidence that at least one district court has held

that the minor children of a lessee have standing to pursue a claim

under § 4852(b)(3). In that case, the United States District Court

for the District of Kansas held that although it did have subject

matter jurisdiction over the plaintiffs' RLPHRA claims, the

regulations implementing the disclosure provision of the RLPHRA did

not take effect until after the plaintiffs entered into their lease

with the defendant. Therefore, the plaintiffs could not recover

under § 4852(b)(3). At no point did the court state that the minor

children had standing to pursue a claim under § 4852(b)(3), and

contrary to Appellants' argument, a finding of subject matter

jurisdiction does not imply that a party has standing to bring a

claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

89 (1998); Cooperman v. Individual, Inc., 171 F.3d 43, 47 n.3 (1st

Cir. 1999).

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lessees who were deprived of the required notice of lead hazards

'upon the transfer of residential property.'"). Although it

appears that we are the first circuit court of appeals to address

this issue, district courts have similarly found that the plain

meaning of § 4852d(b)(3) limits recovery to a "purchaser or lessee"

to the exclusion of minor children of a lessee. See id. at *3

(holding that grandchildren of lessee residing in home with leadbased paint hazards did not have standing to sue landlord because

§ 4852d(b)(3) clearly limits recovery to a 'purchaser or lessee');

L.B. III v. Hous. Auth. of Louisville, 345 F. Supp. 2d 725, 729

(W.D. Ky. 2004) (minor children of lessees "fail to fit the

statutory [standing] requirement because they were neither

purchasers nor lessees of the property in which they lived").7
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C. The HUD/EPA Regulation and Legislative History

Having determined that Congress' intent to limit recovery

under § 4852d(b)(3) to a "purchaser or lessee" is clear from a

plain reading of the statute, it is not necessary for us to consult

either the HUD/EPA regulation defining lessee or the legislative

history of the RLPHRA. See Bryson, 308 F.3d at 85 (If a "statute

is unambiguous, we use neither legislative history, nor

administrative agency interpretation.") (internal citations

omitted). We briefly discuss both, however, because we do not find

that our interpretation of the statute is in conflict with either.

First, our interpretation is consistent with the HUD/EPA

definition of lessee, which essentially confirms that any entity

that is capable of entering into a legally binding contract for the

purchase or lease of real property is permitted to seek redress for

a violation of the disclosure provision of the RLPHRA; that is, the

regulation clarifies that the term "lessee" is not limited to

individuals and that it includes sublessees. See 40 C.F.R. §

745.103; 24 C.F.R. § 35.86 & Comment IV(C)(9). Thus, the

regulation, which is a reasonable clarification of the statute,

does not, as the Appellants contend, impermissibly narrow the class

of "lessees" who have standing under Section 4852(b)(3), and the

Appellants do not have standing under either the regulation or the

statute.
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Similarly, our interpretation of Section 4852d does not

conflict with the legislative history of the RLPHRA. To be sure,

as Appellants point out, it is clear from both the legislative

history and the text of the statute itself that the RLPHRA was

enacted to protect children from the hazards of lead-based paint in

residential housing. But, the disclosure provision is merely one

method in an attempt to effectuate this goal, and does not conflict

with the overarching purposes of the RLPHRA to protect children

from lead poisoning.

Lastly, we note that the federal scheme to reduce the

hazards of lead-based paint in residential housing is intended to

be implemented in conjunction with state and local laws that

require abatement of lead-based paint. Thus, the Mason children

are not left without a remedy: they can pursue claims against the

Appellees in the New Hampshire state courts.

III. CONCLUSION

For the above-mentioned reasons, the district court's

grant of the Appellees' motion to dismiss is AFFIRMED.