Appendix — Tivian Laboratories, Inc. v. United States

NICHARL KODAK, JR., CLERK

ee ee oe epee

, In the

SUPREME COURT OF THE UNITED STATES

October Term, 1978

“8- 1635

No.

TIVIAN LABORATORIES, INC,

Petitioner,

vs.

UNITED STATES OF AMERICA,

‘Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST

JUDICIAL CIRCUIT

—— —

——-— —

—_— —§$ ———

———-

PETITION FOR CERTIORARI FILED APRIL 4,

1979

APPENDIX

A-1

APPENDIX TO PETITION

FOR WRIT OF CERTORARI

DOCKET ENTRIES: —

1. On or about October 16, 1975, initial

letter from Environmental Agency to Defer

dant.

2. Service of said letter on Defendant

by U.S.Marshal on October 28, 1975.

3. Defendant was to provide certain informa-

tion as requested by the letter to the "EPA"

by November 7, 1975, and then by November

17, 1975.

4, Defendant sent letter to U.S.Marshall

on November 1, 1975 declining to respond

to "EPA'S" request. |

5. On May 6, 1976, a complaint and summons

were issued and served by plaintiff's

agents.

6. On May 24, 1976, an answer, motion to

dismiss, and counter claim were filed by

the Vice President of Legal Affairs of the

of the defendant.

7. On May 28, 1976, plaintiff filed an ob-

jection to defendant's motion to dismiss.

8. On June 22, 1976, defendant filed a

reply to plaintiff's objection to defen-

dant's motion to dismiss,

9. On June 23, 1976, defendant filed

Interrogatories against the plaintiff.

10. On July 7, 1976, defendant filed a

motion to compel response to Interro-

gatories.

ll. On July 9, 1976, plaintiff filed

an objection to defendant's motion

to compel.

12. On July 22, 1976, defendant filed

a reply to plaintiff's objection.

13. On July 29, 1976, hearing before

Judge Hagopian on defendant's motion.

Ordered that Interrogatories be an-

swered by the "EPA."

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14. On August 12, 1976, plaintiff filed

motion to default defendant on grounds

that defendant failed to answer the

complaint and summons .

15. On September 10, 1976, defendant filed

a reply to plaintiff's motion for default

judgment.

16. On September 16, 1976, defendant, filed

a claim for dismissal for violation of

court order compelling answers to

Interrogatories.

17. On Seotember 22, 1976, plaintiff filed

ob jection to defendant's claim for dis-

missal.

18. On October 26, 1976, a hearing on defen-

dants claim for dismissal held before

Judge Hagopian and ordered on November 2,

1976, to stay defendant's claim pending a

disposition of plaintiff's motion for de-

fault judgment.

19. On December 8, 1976, Judge Pettine

granted default judgment and struct

all pleadings of defendant.

20. Defendant's claim for hearing with

a competent and impartial judge filed

December 30, 1976.

21. Conditional Notice of Appeal filed

by President of Corporation (defendant)

on December 20, 1976.

22. On February 4, 1977, notice of ap-

peal and motion to set aside entry of

default.

23. On February 8, 1977, plaintiff

filed objection to set aside entry of

default.

24. On April 14, 1977, defendant's

motion to set aside entry of default.

25. On April 22, 1977, notice of with-

drawal of appeal sent to Circuit Court

of Appeals (First Circuit) and granted.

26. On October 24, 1977, defendant filed

Interrogatories.

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27. On November 28, 1977, plaintiff filed m

motion for summary judgment and motion for

protective order.

28. On December 6, 1977, defendant filed ob-.

jections to plaintiff's motions for summary

judgment and protective order.

29. On December 19, 1977, Court ordered

further memorandums on matters raised in

plaintiff's motion for summary judgment and

motion for protective order.

30. On January 4, 1978, defendant filed

its further memorandum on the matters

raised by plaintiff's motions.

31. On January 11, 1978, plaintiff filed

its further memorandum on the matters

raised on its motions for summary judgment

and protective order.

32. On February 28, 1978, Court granted

plaintiff's motion for summary judgment.

33. On March 7, 1978, defendant filed its

notice of appeal fromCourt's granting of

plaintiff's motion for summary judgment

34. On March 13, 1978, plaintiff filed its

objection to defendant's motion for stay of

order and judgment.

35. On march 23, 1978, Court denied defen-

dant’s motion for stay of order and judgment.

36. Defendant filed an appeal of its motion

for stay of order and judgment with First

Circukt Court of Appeals on April 6, 1978.

37. On April 6, 1978, defendant filed its

Appendix to Brief with the First Circuit

Court of Appeals.

38. Order of the Court denying appellant's

motion for a stay of order and judgment of

the District Court , requiring Tivian La-

boratories to disclose to the EPA infor-

mation concerning Tivian's use of certain

chemicals, entered May 3, 1978.

39. Judgment of the Court of heiiiadite

dated December 20, 1978, affirming the

judgment of the District Court, except

that the case is remaned to the District

te a Sua

Court to determine Vivian's claim that

the compliance is unconstitutionally

burdensome, entitling it to reimburse-

ment as a matter of law.

40. Order of Court of Appeals, entered

April 5, 1979, denying motion for re-

hearing denial of stay of enforcement

of the order of December 20, 1978 pending

ruling on written petitions for same.

ee ay ae an

A=8,9

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

J

/

No. 78-1109.

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

Ve

TIVIAN LABORATORIES, INC.,

Defendant, Appellant.

ORDER OF COURT

Entered April 5, 1979

Upon request of appellant for

"stay of enforcement order December 20,

1978 pending ruling on written petitions

A-10 A-ll

MANDATE

UNITED STATES COURT OF APPEALS

for rehearing," | FOR THE FIRST CIRCUIT

It is ordered that said motion be,

and the same hereby is, denied. No. 78-1109.

UNITED STATES OF AMERICA

By the Court: Plaintiff, Appellee.

Ve

/s/ Dana H. Gallup : TIVIAN LABORATORIES, INC.,

Clerk. Defendant, Appellant.

JUDGMENT

Entered December 20, 1978

This cause was submitted on briefs on

~ | appeal from the United States District

Court for the District of Rhode Island.

ee

. le aoe

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Upon consideration whereof, It is Costs in favor of appellee are

now here ordered, adjudged and decreed taxed at Nothing ($0.00) as

as follows: The judgment of the District appellee filed no verified bill.

Court is affirmed in all respects, except

Certified and issued as

the case is remanded to the District

informal mandate under F.R.A.P.

Court for the limited purpose of determin-

41 on JAN 10 1979

ing Tivian's claim that compliance is so

burdensome as to entitle it to reimburse-

/s/Dana H.Gallup

ment for the costs of compliance in ac- Clerk.

Attest to

cordance with the opinion filed this day. True Copy

Costs to appellee.

By the Court: FREDERICK R,DeCESARIS

Clerk

/s/ Dana H. Gallup

By/s/Michele L.Hastings

Clerk. Deputy Clerk.

(cc: Messrs. Foster and Sammartino).

A-14

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

UNITED STATES OF AMERICA

Plaintiff, Appellee

TIVIAN LABORATORIES, INC.,

Defendant, Appellant.

ORDER OF COURT

Entered May 3, 1978

Appellant's motion for a stay

is hereby denied. The only immediate

effect of the district court's order

is that Tivian Laboratories, Inc.

will be required, prior to review in

A-15

this court, to disclose to the Envir-

onmental Protection Agency information

concerning Tivian's use of certain

named chemicals. If appellant should

prevail, this court can fashion relief

to bar the use by the government of the

information so acquired in future pro-

ceedings, whether civil or criminal.

Moreover, appellant has not persuaded

us on the present record of the sub-

stantial likelihood of its prevailing

on the merits. In these circumstances,

the stay will not be granted, Barthuli

ve Board of Trustees, 46 U.S.L.W. 3212

(U.S. Sept. 20, 1977) (Rehnquist,

Circuit Justice).

A-16

To enable this court to carry out a

complete review, the present record is to

be supplemented with a transcrivt of the

hearing of February 23, 1978, which would

appear to contain the decision of the

district court read into the record. See

district court order and judanent of

February 28, 1978. Appellant is ordered

to obtain such a transcript to be includ-

ed in the record on review.

The motion for stay of order and

judgment of the district Court is hereby

denied.

By the Court:

/s

Clerk.

(Cert. c. Clerk, U.S.D.C., Mass;

cc: Messrs. Foster and Sammartino)

A-17

IN THE DISTRICT COURT OF THE

UNITED STATES FOR THE DISTRICT

OF RHODEISLAND

UNITED STATES OF AMERICA

PLAINTIFF C.A.

)

)

\NO. 76-0167

VS )

TIVIAN LABORATORIES, INC.

DEFENDANT

NOTICE OF APPEAL

Notice is hereby given that

Tivian Laboratories Inc., defen-

dant above named, hereby appeals

to the United States Circuit Court

of Appeals for the First Circuit

from the Order and JUdgment granting

plaintiff's Motion for Summary

Judgment pursuant to Rule 56, Federal

Rules of Civil Procedure against

defendant, Tivian Laboraties, Inc.

entered in this action on the 28th

day of February 1978.

Ya

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IN THE DISTRICT COURT OF

Tivian Laboratories, Inc. THE UNITED STATES FOR THE

by its attorney DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA )

Richard K. Foster

)

Pole 121 Great Road y aoetee NO

Bincoln, Rhode Island 76-0167

02865 TIVIAN LABORATORIES, INC. )

401-724-3042

ORDER AND JUDGMENT

This cause came on for hearing

on motion of plaintifi fora

summary judgment vursuant to Rule

56 ofthe Federal Rules of Civil Pro-

cedure; theCourt having considered

the pleadings in the action and

memoranda filed by the parties, and

due deliberation having been made,

and the decision of the Court having

been read, the Court having found

that there is no genuine issue as to

any material fact, it is hereby

A-20

ORDERED, that plaintiff's

motion for a summary judgment is

in all respects granted; it is

further

ORDERED, that defendant shall

supply the information duly reques-

ted by the Environmental Protection

Agency in its letter of October 16,

1975, forthwith; and it is further

ORDERED, that the issue of the

assessment of civil penalties as

set forth in Title 33, United States

Code, Section 1319 (d), remain

open until further Order of the

Court.

By Order, |

/s/ Kathleen M. Powers

Deputy Clerk

ENTER:

/s/ Raymond J. Pettine

CHIEF JUDGE

UNITED STATES DISTRICT COURT

2/28/78

A-21

IN THE DISTRICT COURT OF THE

UNITED STATES

FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA )

)

¥. ) CIVIL ACTION

) NO. 76-0167

TIVIAN LABORATORIES, INC, )

ORDER AND JUDGMENT

This cause came on for hearing on

motion of plaintiff for a summary judg-

ment pursuant to Rule 56 of the Federal

Rules of Civil Procedure; the Court

having considered the pleadings in the

action and memoranda filed by the

parties, and after hearing counsel for

the respective parties and due delibera-

tion having been made, and the decision

of the Court having been read, the Court

A=22

having found that there is no genuine

issue as to any material fact, it is

hereby

ORDERED, that plaintiff's motion

for a summary judgment is in all res-

pects granted; it is further

ORDERED, that defendant shall

supply the information duly requested

by the Environmental Protection Agency

in its letter of October 16, 1975,

forthwith; and it is further

ORDERED, that the issue of the

assessment of civil penalties as set

forth in Title 33, United States Code,

Section 1319(d),

Attest to True Copy

FREDERICK R.DeCESARIS

Clerk

By /s/Michele L.Hastings

Deputy Clerk

(undated)

— ewe

A=-23

FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA )

)

PLAINTIFF, ) CIVIL

) ACTION

Ve ) NO,

) CA 76

TIVIAN LABORATORIES, INCORPORATED,) 0167

)

DEFENDANT. )

m

COMPLAINT

1. This is a civil action to impose

civil penalties against the defendant for

violating Section 308(a) of the Federal

Water Pollution Control Act Amendments

(FWPCA), 33 U.S.C. ss1318(a), and to com-

pel the defendant to provide the informa-

tion sought by the Environmental Protec-

tion Agency ("EPA") pursuant to Section

308 ‘of the FWPCA, 33 U.S.C. ss1318, and

Section 114(a) of the Clean Air Act, 42

U.S.C. ss1857c-9(a).

A-24

2. The Court has jurisdiction over

the subject matter of this action pursuant

to 28 06: 831345, 33 U.S.C. ss1319(b),

and 42 U.S.C. ss1857-8 (a) (3).

3. Degenient Tivian Laboratories,

Incorporated (the "Company"), is a corpora~

tion organized under the laws of Rhode

Island.

4. The Company employs approximately

15 persons in the production of plating

solutions, resins, waxes, and chemical

specialties for metal casting and finishing

as well as fundamental research and develop-

ment.

5. EPA is gathering information from

sources suspected of using polychlorinated

biphenyls and similar compounds (including

chlorinated terphenyls). EPA believes that

A=-25

Tivian Laboratories uses or handles certain

of these chemicals, which, EPA has determin-

ed, constitute a significant hazard to

human health and the environment. EPA seeks

this information for the purpose of develop-

ing effluent limitations, emission standards,

and other strategies to control these chemi-

cals under the FWPCA and the Clean Air Act.

6. On October 28, 1975, a United

States Marshal served upon the Company a

letter dated October 16, 1975, from EPA

requiring the submission of certain speci-

fied information regarding the Company's

use and handling of polychlorinated bi-

pPhenyls ("PCB"s"), chlorinated terphen-

yls, and other similar compounds or mix-

tures. This request was made pursuant

to authority granted EPA by Section 308

of the FWPCA and Section 114 of the Clean

A-26

Air Act.

7. Marvin S. Antelman, president

of the Company and registered Agent for

receipt of service for the iene. wis

fused to accept service prior to October

28, 1975, and cicavien was accomplished

by service on the Secretary of State.

8. Pursuant to the letter dated

October 16, 1975, the Company was re~-

quired to submit information on November

7, 1975, and again on November 17, 1975.

9. In a letter dated November l,

1975, to the U.S.Marshal, Providence,

Rhode Island, Mr. Andrew Melechinsky

declined on behalf of the Company to

respond to EPA's request for information.

To date, the Company has failed to comply

A-27

with that request.

10. Defendant has thereby violated

Section 308(a) of the FWPCA, 33 U.S.C.

8s1318(a), and Section 114(a) of the

Clean Air Act, 42 U.S.C. ssl1857c-9(a),

On every day since November 7, 1975.

WHEREFORE, plaintiff, the United

States of Jeswnehon:, respectfully prays:

1. That the defendant Tivian

Laboratories, Incorporated, be assessed

a civil penalty of $10,000 per day of

violation of Section 308(a) of the

FWPCA, in accordance with Section 309(d):

of the FWPCA, 33 U.S.C. ss1319(d).

2. That the defendant Tivian

Laboratories, Incorporated, be ordered to

Supply the information duly requested by

EPA in its letter of October 16, 1975,

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within five (5) days of the effective

date of said order. 33 U.S.C. ss1319(b),

42 U.S.C. ss1857c-8(b).

3. That the Court grant such

other relief as it may deem just and

proper.

Respectfully submitted,

LINCOLN C, ALMOND

United States Attorney

By :/s/

EVERETT SAMMARTINO

Assistant United States

Attorney

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