Petition — City of Highland Park v. Train

Su; Court, U. &

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j

OCT 29 1975

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IN THE 1 MICHAE

be 0-22 — — -— --

upreme Cont ofthe hited states

OCTOBER TERM, 1975

No %75-610 1

THE CITY OF HIGHLAND PARK, ILLINOIS, EtTc., ET AL.,

Petitioners,

vs.

RUSSELL E. TRAIN, ETC., ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

JOsEPH V. KARAGANIS,

SANFORD R. GAIL,

KARAGANIS & GAIL LTD.,

180 North LaSalle Street,

Chicago, Illinois 60601,

Counsel for Petitioners.

Of Counsel:

THOMAS H. COMPERE,

BERLE L. SCHWARTZ,

1707 St. Johns Avenue,

Highland Park, Illinois 60035.

October, 1975.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

PAGE

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Reasons for Granting the Writ .............0..e0008> 10

1. The Decision Below Conflicts with Decisions of the

Supreme Court as to the Exclusivity of a Statutory

Jurisdictional Grant and the Preclusion of Traditional

Bases of Subject Matter Jurisdiction............. 10

2. The Decision Below Conflicts with the Decisions of

Other Courts of Appeals as to the Exclusivity of

42 U. S.C. See wee Oe eee COs

Subject Matter Jurisdiction. ............00+0006: 14

3. The Decision Below Conflicts with the Decision of

Other Courts of Appeals as to the Appropriate Forum

—District Court or Court of Appeals—to Seek

Review of the Administrators Failure to Include

Statutorily Mandated Components in Promulgation

GE TIER: cc cece ws ccccccee ce oceccescces 15

4+ thn Wickens thchowr Cones Sasttanen Problems

Regarding the Subject Matter Jurisdiction of the

Federal Courts and the Administration of Judicial

Review Under the Clean Air Act.............. 16

ii

CITATIONS.

| Cases.

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967)

ced ccenecencenesdaasensetebeseasass 8, 12, 13, 14, 17

Anaconda v. Ruckelshaus, 482 F. 2d 130 (10th Cir.

) Pre rr rrr OPrrrrrrrTerriy Tr t. le seececees 4, 16

Bell v. Hood, 327 U. S. 678 (1946) ...... wie ee dle de 12

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 409 F. 2d 718 (2nd Cir. 1969),

revd. on merits 403 U. S. 388 (1971) ...........-.. 12

City of Highland Park v. Train, 374 F. Supp. 758 (N. D.

BR, BOTS) occ ccccccccccccccesecccesacs lo sees 2,7,9

City of Highland Park v. Train, 519 F. 2d 681 (7th Cir.

ADTS) wcccccccevececceccwesesvecveceressens 1,4,9

Fri v. Sierra Club, 412 U. S. 541 (1973) ..........4.- 4,7

Montana-Dakota Co. v. Pub. Serv. Co., 341 U. S. 246

CREED ccccédcccckoebsbddeecespuceesceuesaye 12

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 481 F. 2d 116 (10th Cir. 1973) ...... 10

Natural Resources Defense Council v. Train, 510 F. 2d 692 _

CP, & Ge. Be vee ceccccdscoesass 8, 9, 11, 12, 14, 17

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 512 F. 2d 1351 (D. C. Cir. 1975). .4, 5, 16

Natural Resources Defense Council v. Train, 519 F. 2d

287 CD. CG. Gat. 1987S) cccccccccccccces 4, 5, 8, 9, 14, 15

Oljato Chapter of Navajo Tribe v. Train, 515 F. 2d 654

(D. C. Cie. 1975) ..ccccccccccccccvccccscccces 8,14

Peoples v. United States Dep’t. of Agriculture, 427 F. 2d

561 (D. C. Cir. 1970) 2... ccc cceccccccccccccces 12

© ee eres eee - .

i '

Pickus v. United States Board of Parole, 507 F. 2d 1107

Ge Ss Ga Be: So oR ehh ck knee ce cb cc cwoece i2

Powell v. McCormack, 395 U. S. 486 (1969) .......... 12

Rusk vy. Cort, 369 U. S. 367 (1962) ...... ++ -8, 13, 14,17

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U. S.

283 (1938) ...... bd Oi EP Rs ch Ov et dsb 006 hee, 12

Sierra Club v. Train, ...__. F. Supp. we C.C.C. A.

Pe: FOE oon bwestevowstwissavccesincts we («SG

Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C.

1972), affd. per curiam, 4 E. R. C. 1815 (D. C. Cir.

1972), affd. by an equally divided Court sub nom. Fri

v. Sierra Club, 412 U. S. 541 (1973) ............ 4,7, 15

The Fair v. Kohler Die Company, 228 U. S. 22 (1913) .. 12

Wheeldin v. Wheeler, 373 U. S. 647 (1963) .......... 12

Statutes.

2 Ue Te Ge © Pe OE coc cncceeccnces 2, 3, 6, 8, 10, 12, 14

Pb es OE 6d dibs 0008 6000 ese ceennedeasion 9,15

Be a Oy tie SUED 9-56.06 ns ka ces Vedeeoabeteens 2

- , RY =r +2, 3, 5, 6, 8, 10, 12, 14

Be as Oe Gis OD 6 ec owredes docbuee bin 2, 3, 5, 6, 8, 10, 14

33 GU. & Gs BEBE scicc civee. vetévorwesewboecen 5,11, 14

SO Os is EE occas caveecesec wisstesenreeéeqets 5

Ge ie. Oe ee ee 0 c hi ceexnbdnbhatdesséiveenes 2,3

42 U.S. C. § 1857h-2....2, 3, 5, 6, 8, 9, 10,11, 12, 13, 14, 15

GG, Be es vc ok vcnbbvecctersoséocses 2, 3, 7, 16

Regulations.

39 Fed. Reg. 7270 (February 25, 1974) ............. 6

39 Fed. Reg. 42510 (December 5, 1974) ........... 4,7, 15

Supreme Court of the GAnited States

OcToBerR TERM, 1975

No. .....

THE CITY OF HIGHLAND PARK ILLINOIS, eEtc., BT AL.,

Petitioners,

vs.

RUSSELL E. TRAIN, ETc., ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

The Petitioners, The City of Highland Park, Illinois, The

Village of Deerfield, Illinois, Tri-Suburban Defense Council,

Franklin Cole, Joan Cole, Lesley Kodner, Denise Kodner, James

Frankel, Florence Frankel, Andrew Taft, Katherine Taft, Thomas

Nathan, Louise Nathan, Ralph L. Brill, Judith Brill, Ludoslaw

Tybur, Kay Tybur, respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit entered in this proceed-

ing on July 24, 1975.

The modified opinion of the Court of Appeals for the Seventh

Circuit entered July 24, 1975 (A10) is reported at 519 F. 2d

681 (7th Cir. 1975). The court’s original opinion, entered

2

June 10, 1975 (A45), is unreported. The opinion of the

United States District Court for the Northern District of Illinois,

Eastern Division (A71), dismissing the action is reported at

374 F. Supp. 758 (N. D. Ill. 1974).

The judgment of the Court of Appeals for the Seventh Circuit

was entered on June 10, 1975 (A43). A timely petition for re-

hearing and suggestion for en banc hearing was denied and the

Court modified its previous opinion on July 24, 1975 (A39).

This petition for certiorari was filed within 90 days of that date.

This Court's jurisdiction is invoked under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED.

1. Whether § 304 of the Clean Air Act, 42 U. S. C.

§ 1857h-2, is the exclusive basis of district court subject matter

jurisdiction to remedy the Environmental Protection Agency

Administrator's failure to perform a statutorily mandated duty

under the Clean Air Act, 42 U. S. C. § 1857 et seq.?

2. Whether the 60 day notice prerequisite for actions under

§ 304 is a bar to subject matter jurisdiction in actions brought

under the general federal question statute (28 U. S. C. § 1331);

the statute creating subject matter jurisdiction to an

officer of the United States to perform his duty (28 U. S. C.

§ 1361); and the Administrative Procedure Act (5 U. S. C.

§§ 701-706) where § 304(e) specifically preserves preexisting

statutory and common law causes of action?

3. Whether the Administrator’s failure to include statutorily

mandated elements in his promulgation of a regulation under

the Clean Air Act renders such failure reviewable in the district

court (under either 42 U. S. C. § 1857h-2, 28 U. S.C. § 1331,

28 U. S. C. § 1361, 5 U. S. C. §§ 701-706) or in the Court

of Appeals (under 42 U. S. C. § 1857h-5(b)(1)) or both?

STATUTES INVOLVED.

This case involves the jurisdictional grants for judicial review

under the Clean Air Act of 1970—Section 304, 42 U. S. C.

§ 1857h-2 (A4) and Section 307, 42 U. S. C. § 1857h-5 (A7)

—and subject matter jurisdiction under 28 U. S. C. § 1331

(A4), 28 U. S. C. § 1361 (A4) and the provisions of the

Administrative Procedure Act, 5 U. S. C. § 701 ef seg. (A1).

STATEMENT OF THE CASE.

The controversy presented to this Court involves the “juris-

dictional badminton” played by the United States Environmental

Protection Agency, the Circuit Courts of Appeal and the dis-

‘trict courts in applying the jurisdictional grants created by the

Clean Air Act, 42 U. S. C. § 1857 ef seq. and the preexisting

jurisdictional grants under 28 U. S. C. § 1331, 28 U. S. C.

§ 1361 and 5 U. S. C. §701 ef seg. Instead of administering a

system for judicial review designed to give swift and clear adjudi-

cation of substantive rights and obligations under the statute,

the lower courts have become bogged down in a series of juris-

dictional inconsistencies. These inconsistencies have hamstrung

the Congressional desire to achieve air quality on an expeditious

schedule and have left persons injured by EPA actions or failures

to act asking the jurisdictional analog to the Abbott and Costello

refrain—“Who’s on first?”

Though there are a number of variations, the basic problem

stems from promulgation of regulations by the Administrator in

which the Administrator fails to include statutorily mandated

components. Under § 307 of the Clean Air Act, 42 U. S. C.

§ 1857h-5(b) (1), judicial review of promulgated regulations is

directly in the United States Court of Appeals for the “appro-

priate circuit”. Under § 304 of the Clean Air Act, 42 U. S. C.

§ 1857h-2(a), the Administrator’s failure to perform a non-

discretionary duty can be reviewed by an action against the

Administrator in the district court.

4

Since a promulgation of regulations which fails to include

statutorily mandated components necessarily involves both pro-

mulgation and failure to act, the courts have demonstrated a

schizophrenic reaction to attempts to seek judicial review either

in the district court or the court of appeals. Indeed, the Circuit

Court of Appeals for the District of Columbia has suggested that

the Administrator’s failure to include statutorily required com-

ponents in the regulations he promulgates may be reviewable

either in the district court (§ 304) or the court of appeals

(§ 307). See Natural Resources Defense Council v. Environ-

mental Protection Agency, 512 F. 2d 1351, 1356-1357 (D. C.

Cir. 1975). At least one other circuit has held that once a

regulation is promulgated, all challenges, including failures to

include certain components, should be heard by the appellate

court. Anaconda v. Ruckelshaus, 482 F. 2d 1301, 1304 (10th

Cir. 1973). The Seventh Circuit in the decision below held

that despite the Administrator’s promulgation of what purported

to be regulations governing significant deterioration (39 Fed.

Reg. 42510, December 5, 1974) and despite the Administrator’s

claim that the sole method of judicial review for deficiencies

in those regulations was in the court of appeals, the exclusive

avenue of review was in the district court. City of Highland Park

v. Train, 519 F. 2d 681, 697 (7th Cir. 1975)* (A37).

This confusion over jurisdiction between district court and

appellate court has been compounded by the inconsistent pesi-

tions taken by the Administrator in jurisdictional disputes in

Clean Air Act cases and almost identical jurisdictional disputes

1. Ironically, the district judge who first ordered the Admin-

istrator to promulgate significant deterioration regulations has held

that the promulgation of even partial significant deterioration regula-

tions vests jurisdiction exclusively in the court of appeals. Order of

Judge John H. Pratt, November 15, 1974, in Sierra Club v. Train,

omens F. Supp. ........ (D. D. C. C. ‘A. No. 1031-72). It was Judge

Pratt who originally entered the order requiring promulgation of

significant deterioration regulations. Sierra Club v. Ruckelshaus, 344

F Supp. 253 (D. D. C. 1972); aff'd. per curiam ........ 2?

4 E.R. C. 1815 (D. C. Cir. 1972), affd. by an equally divided

Court sub nom. in Fri v. Sierra Club, 412 U. S. 541 (1973).

5

under the similar judicial review provisions of the Federal Water

Pollution Control Act Amendments of 1972.” In some cases the

Administrator has argued that omissions or failures to include

statutorily required components in regulations should be brought

in the district court® and in other cases the Administrator has

argued that such omissions must be challenged exclusively in

the appellate court.*

This “jurisdictional badminton’”® game reached its zenith in

the instant case. Petitioners brought suit in the district court

against the Administrator and a group of shopping center

developers seekings a mandatory injunction requiring the Ad-

ministrator to promulgate “complex source” regulations and

significant deterioration regulations relating to complex sources.

“Complex” or “indirect source” are terms used to describe facili-

ties which don’t emit pollutants themselves but which attract

significant vehicle congestion and thus cause significant vehicular

pollution. The Administrator has repeatedly stated that such

sources are significant health hazards and that preconstruction

permit review is the only rational method of changing traffic de-

sign or location to avoid traffic congestion. Petitioners sought a

preliminary injunction against the developers asking that con-

struction be halted until the regulations had been applied to

the proposed center. Promulgation of the regulations was long

overdue under the statutory timetable mandated by the Clean

Air Act.

Jurisdiction in the district court was predicated on 28 U. S. C.

§ 1331, 28 U. S. C. § 1361, § 304 of the Clean Air Act, and

2. § 505 (district court, 33 U. S. C. § 1365) and § 509 (appel-

late court 33 U. S. C. § 1369).

> N. R. D.C. v. E. P. A., 512 F. 2d 1351, 1357 (D. C. Cir.

1975).

4. Brief of Federal appellees in the Seventh Circuit in the instant

case, City of Highland Park v. Train, at p. 12: See also Natural Re-

sources Defense Council v. Train, 519 F. 2d 287, 290 (D. C. Cir.

1975).

5. See the dissenting opinion of Judge Wright in N. R. D. C. v.

E. P. A., 512 F. 2d 1351 at 1361 (D. C. Cir. 1975).

6

the Administrative Procedure Act, § U. S. C. § 701 ef seq.

Since construction of the shopping center was imminent and be-

cause preliminary injunctive relief was sought under Rule 65,

Federal Kules of Civil Procedure, petitioners did not file a 60

day notice as required by § 304(b). Instead, they relied on the

traditional bases for district court jurisdiction alleged in their

complaint.

While the district court litigation was pending, the Adminis-

trator promulgated what purported to be “indirect source” reg-

ulations. 39 Fed. Reg. 7270 (February 25, 1974}. However,

he expressly excluded from the scope of his indirect source

regulations the significant deterioration aspects of indirect source

control.

“Because several basic approaches are still being considered,

an attempt to reflect non-deterioration considerations in the

indirect source regulations would be premature. How-

ever it is EPA’s intent that indirect source and significant

deterioration regulations will be consistent with one another.

Specific relationships will be addressed in regulation to be

promulgated on significant deterioration.”

39 Fed. Reg. at 7271

(emphasis added).

Despite a claim by the Administrator that § 304 was the

exclusive basis of district court jurisdiction and that the action

was therefore barred by failure to give 60 days notice, the dis-

trict court held that the 60 day notice provision did not bar

jurisdiction under 28 U. S. C. §§ 1331 and 1361. However, the

district court ruled for the Administrator on the merits, con-

cluding that the Administrator had complied with his statutory

duty by promulgating the February 25, 1974 indirect source

regulations.

As to the failure of the Administrator to include significant

deterioration aspects of indirect source regulations, the district

court concluded that the significant deterioration issue was dis-

7

cretionary with the Administrator.* He therefore dismissed the

complaint for failure to state a claim.

Petitioners appealed and during the pendency of the appeal the

Administrator promulgated what purported to be significant

deterioration regulations. 39 Fed. Reg. 42510 (December 5,

1974). However, contrary to his earlier promise to include in-

direct source controls in his significant deterioration regulations,

no mention was made concerning indirect sources. Yet the

Administrator’s brief in the Seventh Circuit below argued that

the December 5, 1974 regulations had complied fully with the

court’s order in Sierra Club v. Ruckelshaus, 344 F. Supp. 253

(D. D. C. 1972), aff'd. per curiam, 4 E. R. C. 1815 (D. C.

Cir. 1972); aff'd. by an equally divided Court sub nom. Fri v.

Sierra Club, 412 U. S. 541 (1973). The Administrator con-

tended that any dissatisfaction with those regulations should be

reviewed exclusively in the court of appeals under § 307.

Petitioners attempted to preserve the merits of their claim from

these jurisdictional anomalies by maintaining both the district

court appeal’ and by filing a timely petition for review directly in

the court of appeals under § 307.* On petitioners’ motion, the

two proceedings were consolidated.

In direct contrast to the district court below the Seventh

Circuit held that the Administrator had not complied with the

mandate of the Sierra Ciub decision but that the petitioners

6. “Moreover, it has not been conclusively determined that the

Clean Air Act requires the prevention of significant deterioration as a

decision by an equally divided Supreme Court is not an authorita-

tive determination for other cases.” 374 F. Supp. 758 at 774 (A97),

referring to this Court’s action in Fri v. Sierra Club, 412 U. S. 541

(1973).

7. In the Seventh Circuit, the district court appeal was designated

No. 74-1271.

8 In the Seventh Circuit, the petition for review of the Adminis-

trator’s failure to include significant deterioration controls for carbon

monoxide, hydrocarbons, oxides of nitrogen and photochemical oxi-

——— vehicular pollutants associated with indirect sources—in

on December 5, 1974, 39 Fed. Reg. 42510, was

promulgation

yt ane No. 75-1006.

had failed to meet the jurisdictional prerequisites to raise the

substantive issue. The court of appeals held that the Adminis-

trator’s failure to include statutorily mandated components in

the promulgated regulations should be reviewed exclusively in

the district court. Moreover, the Seventh Circuit held that the

exclusive basis for district court subject matter jurisdiction

was § 304(a)(2). It held that district court jurisdictional bases

which would have existed apart from § 304—28 U.S.C. § 1331,

28 U. S. C. § 1361 and the Administrative Procedure Act, 5

U. S. C. § 701 ef seq.—had been barred by the enactment of

§ 304. The Seventh Circuit’s decision that § 304 was the ex-

clusive basis of district court subject matter jurisdiction was

made despite the express savings provision of § 304(e), 42

U. S. C. § 1857h-2(e) which states:

“(e) Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any emis-

sion standard or limitation or to seek any other relief (in-

cluding relief against the Administrator of a State

agency).”

Since the Seventh Circuit held that § 304 is the exclusive

basis of district court jurisdiction and since petitioners had not

given the sixty day notice required by § 304(b)(1)(A) as a

prerequisite to an action under § 304, the court of appeals held

that there was no subject matter jurisdiction in the district court.

Moreover, despite a petition for rehearing which cited both

the directly contrary opinion of the District of Columbia Circuit

in Natural Resources Defense Council v. Train, 510 F. 2d 692,

698-703 (D. C. Cir. 1975)* and the decision of this Court in

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) and

Rusk v. Cort, 369 U. S. 367 (1962), the Seventh Circuit de-

clined to change its decision. It simply filed a modified opinion

acknowledging the conflict between the Seventh Circuit and

the District of Columbia Circuit.

9. See also Natural Resources Defense Council v. Train, 519 F.

2d 287, 291 (D.C. Cir. 1975); Oljato Chapter of Navajo Tribe v.

Train, 515 F.2d 654, 664 n. 16 (D. C. Cir. 1975).

9

The Seventh Circuit's decision on the exclusivity of § 304

as a basis of district court jurisdiction raises a three-pronged

dilemma in cases where the Administrator fails to include certain

components in promulgating regulations:

1. Requirement of a 60 day notice prior to commencing an

action effectively precludes a person suffering injury as a result

of the Administrator’s failure to act from seeking temporary or

preliminary injunctive relief pursuant to Rule 65 of the Federal

Rules of Civil Procedure. As explained in N. R. D. C. v. Train,

510 F. 2d 692, 700 (D. C. Cir. 1975) the purpose of § 304

was to expand jurisdiction to those lacking the requisite injury

for standing and jurisdictional amount. It was not designed to

bar emergency relief for those actually suffering injury who wow!d

have had the requisite standing to seek relief under other jur-

isdictional grants.

2. Exclusivity of § 304 jurisdiction would render unre-

viewable those failures to act which are not a violation of a clear

duty but are an abuse of discretion normally reviewable under

5 U. S. C. § 706(2)(A). Cf. N. R. D. C. v. Train, 519 F.

2d 287, 291 (D. C. Cir. 1975). Both the district court and the

court of appeals below questioned whether the duty to promul-

gate significant deterioration regulations was non-discretionary

or actually within the discretion of the Administrator.” If the

duty to promulgate is discretionary then § 304 jurisdiction does

not exist and review of the Administrator’s failure to promulgate

such regulations is in a “jurisdictional limbo” N. R. D. C. v.

Train, 519 F. 2d 287 at 291.

3. Congress clearly intended § 304 to expand the jurisdic-

tion of district courts to persons who would otherwise not have

the requisite standing to sue. Congress wanted uninjured citizens

to act as “private attorneys general” to aid in the enforcement

of the Clean Air Act." As a limitation on this new expansion

10. City of Highland Park vy. Train, 519 F. 2d at 692 (A27);

district court opinion 374 F. Supp. at 774 (A97).

11. Compare the lack of a standing requirement under § 304

with the required standing to seek appellate review under § 307,

10

of jurisdiction to non-injured private attorneys general, Congress

imposed a 60 day notice provision. However, Congress expressly

stated that § 304 was not intended to affect or restrict the jur-

isdiction and remedies which existed under other statutes and

at common law. But the Court of Appeal’s decision below

destroys those traditional statutory bases of judicial relief for

persons suffering actual injury.

REASONS FOR GRANTING THE WRIT.

1. The Decision Below Conflicts with Decisions of the Supreme

Court as to the Exclusivity of a Statutory Jurisdictional

Grant and the Preclusion of Traditional Bases of Subject

Matter Jurisdiction.

The district court action below was brought under four sep-

arate bases of subject matter jurisdiction:

a. 28 U. S. C. § 1331—general federal questions

b. 28 U.S. C. § 1361—action to compel a federal officer

to perform a duty owed to plaintiff

c. 5 U. S. C. § 701 et seg.—the Administrative Pro-

cedure Act

d. 42 U. S. C. § 1857h-2—<itizen suits under the Clean

Air Act

The Seventh Circuit held that § 1857h-2 is the exclusive jur-

isdictional basis for district court claims against the Adminis-

trator. Since petitioners, in seeking preliminary injunctive relief,

had not filed the 60 day notice required by § 1857h-2(b) (1)

(A), the Seventh Circuit held that no suit could be commenced

even though the action was also brought under jurisdictional

grants provided by other statutes.

Unfortunately the Seventh Circuit completely ignored the ex-

istence of the explicit statutory language which preserves other

Natural Resources Defense Council v. E. P. A., 481 F. 2d 116, 119-

120 (10th Cir. 1973).

il

statutory and common law remedies wholly independent of

§ 304.

Section 304(e) expressly provides:

“Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute

or common law to seek enforcement of any emission

standard or limitation or to seek any other relief (includ-

ing relief against the Administrator or a State agency).”

42 U. S. C. § 1857h-2(e) (A6).

The explicit congressional intent set forth in § 1857h-2(e)

not to restrict traditional remedies is echoed throughout the

legislative history of the Clean Air Act. For example, the House-

Senate Conference Committee stated:

“The right of persons or classes of persons to seek enforce-

ment or relief under any other statute or common law

remedy is not affected.”™

The Senate Public Works Committee expressed similar intent:

“It should be noted however that the section [1857h-2]

would preserve any rights or remedies under any other

law.”*

The 60 day notice requirement was intended only as a limita-

tion to the special actions under § 1857h-2 and was not intended

to restrict jurisdiction over actions that could exist independent

of § 1857h-2. See: Natural Resources Defense Council v. Train,

510 F. 2d 692, 698-703 (D. C. Cir. 1975). Indeed, the pur-

12. See: A Legislative History of the Clean Air Act Amend-

ments of 1970, prepared by the Environmental Policy Division of the

Congressional Research Service of the Library of Congress (1974)

p. 206.

13. Id. at 438.

12

pose of § 1857h-2 was to expand federal subject matter jurisdic-

tion by removing obstacles of jurisdictional amount and standing

which barred actions by citizens not suffering “injury in fact”.

This special citizen suits provision was definitely not intended

to limit those actions where traditional jurisdictional amount

and standing requirements had been met.’® See: N. R. D. C.

Vv. Train, supra, 510 F. 2d at 700.

The clear statutory language of the savings clause, § 1857h-

2(e), and the multiple expressions of legislative intent not to

restrict independent remedies becomes even more significant

when viewed in light of this Court’s decisions analyzing govern-

ment claims of exclusivity of review under specielized statutes.

The leading decision is Abbott Laboratories v. Gardner, 387

U. S. 136 (1967).

In Abbott, a group of drug manufacturers brought suit in

district court challenging a labeling regulation promulgated by

15. That subject matter jurisdiction exists under other statutes to

review the Administrator’s failure to act is clear. Where the district

court must examine the federal substantive law upon which a claim

for relief is founded, the district court has subject matter jurisdiction

under 28 U. S. C. § 1331, general federal question jurisdiction. The

Fair v. Kohler Die Company, 228 U. S. 22, 25 (1913); Bell v.

Hood, 327 U. S. 678, 682 (1946); Wheeldin v. Wheeler, 373 U. S.

647, 649 (1963); Montana-Dakota Co. v. Pub. Serv. Co., 341 U. S.

246, 249 (1951); Powell v. McCormack, 395 U. S. 486, 516

(1969); Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 409 F. 2d 718, 719-720 (2nd Cir. 1965),

rev'd. on merits, 403 U. S. 388 (971). ‘The complaint alleges and no

one has disputed that the amount in controversy exceeds $10,000.

ng Paul Mercury Indem. Co. v. Red Cab Co., 303 U. S. 283

(1938)

While not essential to subject matter jurisdiction (given jurisdic-

tion under § 1331), this Court has indicated and and tho Cissulk Consts

of Appeals have increasingly held, that the Administrative Procedure

Act, 5 U. S. C. § 701 et seq. provides an independent basis of sub-

ject matter jurisdiction. See: Pickus v. United States Board of Parole,

507 F. 2d 1107, 1109 (D. C. Cir. 1974) and cases cited therein.

There is no need to engage in extended discussion on the Seventh Cir-

cuit’s narrow construction of 28 U. S. C. § 1361 jurisdiction other

than to note that the rigid mandamus construction of § 1361 is con-

trary to the broad remedial purpose of the statute. See: Peoples v

United States Department of Agriculture, 427 F. 2d 561 (D. Cc.

Cir. 1970).

13

the Commissioner of the Food and Drug Administration. The

district court dismissed the complaint on the ground that 21

U. S. C. §§ 371(e) and (f), which provided for review of cer-

tain kinds of regulations in the Court of Appeals, was the

exclusive review mechanism. This Court reversed, stating:

“Judicial review of a final agency action will not be cut off

unless there is persuasive reason to believe that such was

the purpose of Congress.”

387 U. S. at 140.

This Court found no evidence at all that Congress intended to

preclude traditional avenues of judicial review. Indeed, in an

analysis particularly appropriate to the instant case, this Court

emphasized the existence of a savings clause provision in the

review statutes which, like § 1857h-2(e), preserved existing

remedies. 387 U. S. at 144. The Court found the savings clause

to be affirmative evidence of congressional intent to preserve

remedies such as those existing under the Administrative Proce-

dure Act:

“We prefer to take the savings clause at face value and to

read it in harmony with the policy favoring judicial review

expressed in the Administrative Procedure Act and this

Court’s decisions.”

387 U. S. at 146.

See also: Rusk v. Cort, 369 U. S. 367 (1962). In Rusk, a

physician who had left the United States and had refused to

submit to induction into the military, applied for a passport to

return to this country. The State Department denied the pass-

port on the ground that Cort had lost his citizenship. Cort then

sued the Secretary of State in the district court under the Ad-

ministrative Procedure Act. The district court denied the govern-

ment’s motion to dismiss which argued that a statutory habeas

corpus proceeding pursuant to 8 U. S. C. § 360(c) was the

only method for reviewing determinations of citizenship. Upon

the district court’s holding of jurisdiction under the Administra-

tive Procedure Act and its ruling in favor of the plaintiff on

14

the merits, the government appealed. This Court affirmed, stat-

ing:

“{Tjhe Court will not hold the broadly remedial provisions

of the Administrative Procedure Act are unavailable to

review administrative decisions . . . in the absence of clear

and convincing evidence that Congress so intended.”

369 U. S. at 380.

Applying the mandates of Abbott Laboratories v. Gardner

and Rusk v. Cort to the instant case, it is Clear that there is

no evidence of congressional intent to preclude traditional forms

of judicial review by imposing a 60 day notice requirement on

such remedies. Indeed, § 1857h-2(e) and its legislative history

demonstrates affirmative evidence that Congress wished to pre-

serve traditional avenues of review independent of any such

restraints.

The direct conflict between the Seventh Circuit’s decision

below and the decisions of the this Court in Abbott Labora-

tories Vv. Gardner, supra and Rusk v. Cort, supra justify the

grant of certiorari to review the judgment below.

2. The Decision Below Conflicts with the Decisions of Other

Courts of Appeals as to the Exclusivity of 42 U. S. C.

§ 1857h-2 as a Basis of District Court Subject Matter

Jurisdiction.

As noted above the District of Columbia Circuit has held that

the citizen suit jurisdictional grant of the Clean Air Act, 42

U. S. C. § 1857h-2, and its jurisdictional counterpart in the

Federal Water Pollution Control Act, 33 U. S. C. § 1365 are

not the exclusive bases for district court subject matter jurisdic-

tion and that 28 U. S. C. § 1331, 28 U. S. C. § 1361 and the

Administrative Procedure Act, 5 U. S. C. § 701 ef seq. also

conferred subject matter jurisdiction on the district court.

N. R. D. C. v. Train, 510 F. 2d 692, 698-703."* This holding

16. See also N. R. D. C. v. Train, 519 F. 2d 287, 291 (D. C.

Cir. 1975); Oljato Chapter of Navajo Tribe v. Train, 515 F. 2d 654,

664 n. 16 (D. C. Cir. 1975).

15

was based on an extensive analysis of the legislative history and

purpose of § 304 as well as adherence to the savings clause

provisions of § 304(e). The decision of the Seventh Circuit

below is directly contrary to the holdings of the District of

Columbia Circuit.

An additional related conflict with the District of Columbia

Circuit arises from the Seventh Circuit’s characterization of the

Administrator’s significant deterioration obligation as potentially

discretionary (A27). If so, review of that obligation would not

even be available under § 304—which is limited to non-discre-

tionary duties—but would be reviewable as an abuse of dis-

cretion under the Administrative Procedure Act, 5 U. S. C.

§ 706. N. R. D. C. v. Train, 519 F. 2d 287, 291 (D. C.

Cir. 1975).

‘These conflicts justify the grant of certiorari to review the

judgment below.

3. The Decision Below Conflicts with the Decision of Other

Courts of Appeals as to the Appropriate Forum—District

Court or Court of Appeals—to Seek Review of the Ad-

ministrator’s Failure to Include Statutorily Mandated Com-

ponents in Promulgation of Regulations.

The Administrator promulgated what purported to be signifi-

cant deterioration regulations oc» December 5, 1974, 39 Fed.

Reg. 42510. He claimed that this promulgation statisfied the

court order in Sierra Club v. Ruckelshaus, supra. To protect

their jurisdictional base, petitioners—already on appeal of the

district court action in Docket No. 74-1271—filed a timely

petition for review directly in the Seventh Circuit Court of

Appeals under § 307—Docket No. 75-1006.

The Seventh Circuit found—and counsel for the Adminis-

trator admitted at oral argument—that the December 5, 1974

regulations did not include statutorily mandated components."

17. Controls for vehicular pollutants—carbon monoxide, hydro-

carbons, etc.

16

The Seventh Circuit held that the Administrator’s failure to in-

clude the components was reviewable only in the district court

and not in the court of appeals under § 307.

The Tenth Circuit has taken a directly contrary view and

held that the Administrator’s promulgation of regulations and

the components of those regulations are only reviewable in

the courts of appeals pursuant to § 307. Anaconda vy. Ruckels-

haus, 482 F. 2d 1301, 1304-1305 (10 Cir. 1973).

The District of Columbia Circuit has taken a different ap-

proach. It has recognized the semantic confusion which neces-

sarily results from characterizing an inadequate or incomplete

action as an action or a failure to act. Thus, where the Ad-

ministrator has promulgated a regulation which in the opinion

of the challengers does not go far enough, jurisdiction could

rest either in the district court or the court of appeals. N. R.

D. C. v. E. P. A., 512 F. 2d 1351, 1356-1357 (D. C. Cir.

1975).

These conflicts justify the grant of certiorari to review the

judgment below.

4. The Decision Below Creates Significant Problems Regarding

the Subject Matter Jurisdiction of the Federal Courts and

the Administration of Judicial Review Under the Clean

Air Act. ‘

As discussed above, a statutory scheme which was intended

to give expeditious review of substantive issues under the Clean

Air Act has become bogged down in broad jurisdictional in-

consistencies between the circuits. If the appellate court is

the appropriate forum for judicial correction of statutorily de-

ficient regulations, then the decision below is clearly erroneous

and will lead to further confusion of the review structure.

If, conversely, the district court is the appr-oriate forum,

the Seventh Circuit’s radical constriction of district court juris-

diction flies in the face of express Congressional intent, this

17

Court’s decisions in Abbott Laboratories v. Gardner, supra

and Rusk v. Cort, supra and the decisions of the District of

Columbia Circuit in N. R. D. C. v. Train, 510 F. 2d 692

(D. C. Cir. 1975).

If allowed to stand, the decision below will greatly expand

the ever growing litigation over the jurisdiction of our court

system at great cost to effective judicial administration.

CONCLUSION.

For the above reasons a Writ of Certiorari should be issued

to review the judgment and opinion of the Seventh Circuit.

Respectfully submitted,

JOSEPH V. KARAGANIS,

SANFORD R. GAIL,

KARAGANIS & GaIL LTD.,

180 North LaSalle Street,

Chicago, Illinois 60601,

Counsel for Petitioners.

Of Counsel:

THOMAS H. COMPERE,

BERLE L. SCHWARTZ,

1707 St. Johns Avenue,

Highland Park, Illinois 60035.

October, 1975.