# Appendix — Tivian Laboratories, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2772%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 442 U.S. 942 ## Text 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." A-3 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. A-5 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 A-13 A~12 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 A-19 A-18 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, A-28 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 Cs Salt --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2772%3A2. Public record. Not legal advice.