Petition — Motor Vehicle Manufacturers Ass'n of the United States v. Costle

Supreme Court brief1981

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Office -Supreme Court, U.

| FILED

80-1236

JAN @L 1981

POO ie ALEXANDER L STEVAS,

| CLERK |

IN THE ~

Supreme Court of the United States

OCTOBER TERM, 1980

Motor VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., A NEW YORK CORPORATION;

AMERICAN Motors CORPORATION, A MARYLAND

CORPORATION; CHRYSLER CORPORATION AND GENERAL

Motors CORPORATION, DELAWARE CORPORATIONS;

VOLKSWAGEN OF AMERICA, INC., A NEW JERSEY

CORPORATION; DETROIT AUTOMOBILE DEALERS

ASSOCIATION, INC., AND MICHIGAN AUTOMOBILE

\ DEALERS ASSOCIATION, INC., MICHIGAN

| CORPORATIONS, Petitioners,

DouGLas M. COosTLE, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PETITION FOR WRIT OF CERTIORARI

Of Counsel: THEODORE SOURIS

BODMAN, LONGLEY &

WILLIAM H. CRABTREE DAHLING

Vice President and General 34th Floor

Counsel 100 Renaissance Center

CHARLES H. LocKwoop Detroit, Michigan 48243

Motor VEHICLE (313) 259-7777

MANUFACTURERS

ASSOCIATION OF THE Attorneys for Petitioners

UNITED STATES, INC.

300 New Center Building

Detroit, Michigan 48202

January 21, 1981

[List of Counsel Continued on Inside Cover]

ke ENA MERE ERT RATERS “VRTTO TESTIS NEE ERR RR LL ST ORT

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

KENNETH I. GLUCKMAN

AMERICAN Motors CORPORATION

The American Center

27777 Franklin Road

Southfield, Michigan 48034

THOMAS P. DONOHUE

MICHAEL W. GRICE

Office of the General Counsel

CHRYSLER CORPORATION

P.O. Box 1919

Detroit, Michigan 48121

Otis M. SMITH

General Counsel

WILLIAM L. WEBER

GEORGE F. BALL

GENERAL Motors CORPORATION

3044 West Grand Boulevard

Detroit, Michigan 48202

GERHARD P. RIECHEL

VOLKSWAGEN OF AMERICA, INC.

818 Sylvan Avenue

Englewood Cliffs, New Jersey 07632

COLOMBO AND COLOMBO

By FREDERICK COLOMBO

Attorneys for

DETROIT AUTOMOBILE DEALERS

ASSOCIATION, INC.

Suite 209

1500 North Woodward Avenue

Birmingham, Michigan 48011

WILLINGHAM, CoTE’ HANSLOVSKY,

GRIFFITH & FORESMAN, P.C.

By RAYMOND J. FORESMAN, JR.

Attorneys for

MICHIGAN AUTOMOBILE

DEALERS ASSOCIATION, INC.

1331 E. Grand River,

P.O. Box 1070

East Lansing, Michigan 48823

’%

QUESTION PRESENTED FOR REVIEW

When a district court rules in a citizen suit brought

under §304(a)(2) of the Ciean Air Act that the En-

vironmental Protection Agency failed to perform a non-

discretionary duty to issue two sets of regulations essen-

tial to petitioners’ compliance with emissions perfor-

mance warranty regulations and that such failure,

coupled with immediate enforcement of the warranty

regulations, will cause irreparable injury to petitioners,

does §307(b) of the Act deny the court jurisdiction to en-

join enforcement of the warranty regulations until EPA

complies with its statutory duty?

PARTIES BELOW

The parties to the proceedings in the courts below

are those identified in the caption of the case and, in ad-

dition, Ford Motor Company and Ed Bailey, Inc., doing

business as Ed Bailey AMC/Jeep. Ford and Bailey have

not joined as petitioners in this Court.

’%

STATEMENT REGARDING CORPORATE PETI-

TIONERS PURSUANT TO SUPREME COURT

RULE 28.1

The corporate petitioners herein, their parent com-

panies, subsidiaries (except wholly owned subsidiaries),

and affiliates are as follows:

A. Motor Vehicle Manufacturers Association of

the United States, Inc.

MVMaA is a not-for-profit trade association incorporated

in New York. It has no parent, subsidiaries, or affiliates.

Its members are:

American Motors Corporation

Checker Motors Corporation

Chrysler Corporation

Ford Motor Company Freightliner Corporation

General Motors Corporation

International Harvester Company

Mack Trucks, Inc.

The Nolan Company

PACCAR Inc.

Volkswagen of America, Inc.

Walter Motor Truck Company

White Motor Corporation

B. American Motors Corporation:

Willys Motors Australia Pty., Ltd.

Amnor N.V.

Regie Nationale des Usines Renault

Arab American Vehicles Company

Rambler Motors (AMC) Limited

Vehiculos Automores Mexicanos, S.A.

Jeep de Venezuela, S.A.

Ensambladora Carabobo, C.A.

Jeep Caracas, S.A.

Mahindra & Mahindra, Ltd.

Constructora Venezolan de Vehiculos, C.A.

iil

C. Chrysler Corporation

Chrysler Financial Corporation

Chrysler Credit Corporation

Chrysler Corporation has numerous other subsidiaries

which are located in the United States and in foreign

countries. The majority have the Chrysler name incor-

porated therein.

D. General Motors Corporation

United States and Canadian Subsidiaries:

General Motors Acceptance Corporation

Motors Insurance Corporation

General Motors of Canada, Ltd.

General Motors Corporation has numerous other sub-

sidiaries which are located in foreign countries. The ma-

jority have the General Motors name _ incorporated

therein.

E. Volkswagen of America, Inc.

Volkswagenwerk Aktiengesellschaft

Vorelco, Inc.

Vorelco of California, Inc.

F. Detroit Automobile Dealers Association, Inc.

DADA has no parent, affiliates or subsidiaries.

G. Michigan Automobile Dealers Association, Inc.

MADA has no parent, affiliates, or other than wholly

owned subsidiaries.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ............-0-00000: i

PS ut tvued bu nade as dsgecnne owes ae oe i

STATEMENT REGARDING CORPORATE PETITIONERS PUR-

SUANT TO SUPREME COURT RULE 28.1 .............. il

a ons as ocd du au Wsa6 66> he te dace eon Vv

ee eC ksh duw edo pep hb es oé.ee wwe vi

OPINIONS AND ORDERS BELOW ...............000eeeees 1

Ec dake weds ie's ck vbebss,64.404 06 ¥spe‘eon 2

oe Even eben ease ne Ohés 2

CONCISE STATEMENT OF THE CASE............2000e000e- a

REASONS FOR GRANTING THE WRIT ................0005- 8

I. Scope of Citizen Suits Under §304(a)(2) ........ 9

II. District Court’s Jurisdiction to Grant Ancillary

PONE os Vv tonwwnatassS.cucwees 17

PE Ldn e as wiece the deivekianeeacease aug. 21

PREVIOUS PAGE WAS BLANK |

-*%

TABLE OF AUTHORITIES

CASES: PAGE

Adamo Wrecking Co. v. United States, 434 U.S. 275, 98

oe Ng Be ee Bd) ar 13, 16

Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.

aS Oakes Zhu, Swiws.y: wacko » 6 0 Ves 19

Brown v. Board of Education, 349 U.S. 294, 75 S.Ct.

i a i ok ech adnbeeaees 19

Harrison v. PPG Industries, Inc., 446 U.S. 578, 100

S.Ct. 1889, 64 L.Ed. 2d 525 (1980) ............... 16

Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88

i cu ck debe back sduetieces 19

Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41

ee a hi eke aldchivdcbasleis bes 19

Morrow v. District of Columbia, 417 F.2d 728 (DC Cir.

GLO Laie sub ded beds s caeevess 19, 20, 21

Natural Resources Defense Council, Inc. v. Train, 411

F.Supp. 864 (SDNY), aff’d, 545 F.2d 320 (2nd Cir.

EE eM. os Le peeee wees geste 10, 11

National Treasury Employees Union v. Nixon, 492 F.2d

EU erway wah aveee v4 Mae ea ss 17, 18

Riggs v. Johnson County, 73 U.S. 166, 18 L.Ed. 786

EO CMGI) ogy vas’ x46 ee ob do 6 9/6 6 19

Sierra Club v. Ruckelshaus, 344 F.Supp.253 (DDC),

aff'd per curiam, 4 ERC 1815 (DC Cir. 1972), aff’d

by an equally divided court sub nom. Fri v. Sierra

Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140,

reh. den’d, 414 U.S. 884, 94 S.Ct. 33, 38 L.Ed.2d

ea Ld ls ain e's peers 9, 11

Swann v. Charlotte-Mecklenberg Board of Education,

402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. 2d 554 (1971)... 19

STATUTES:

The Clean Air Act

Meda saa dibeeeelicrscseldh oss 3,

EE oe sects edasccvessev.cces seriatim

Vii

Table of Authorities Continued

STATUTES: PAGE

Sn RG ea ah eerie seriatim

§307(b), 42 U.S.C. 7607(b), formerly 42 U.S.C.

SI ee asc k ik ot abek ce Rabun seriatim

Title 28, United States Code

cholic ce cab een tite pete

ONS ARI a nee Amn

The Administrative Procedure Act

PR HOE iis als eR RRR aed leak Rad aD

The Federal Water Polution Control Act

DEAT e GRO oti bi ben dee Heketscae'sdewsns

The Outer Continental Shelf Lands Act

8 id EONS SSD ee aoe hs eee eres ee

The Noise Control Act

ey Ces NE ED ica os aa so dig 4 hss Ge WOR nea ka Be

The Resource Conservation and Recovery Act

Grass a PR Lous bo saci A bch dee ésanneue

ADMINISTRATIVE MATERIALS:

Emissions Performance Warranty Regulations, 45 Fed.

Reg. 34829 (May 22, 1980), codified at 40 CFR Part

i NE PUI Sin a! ord W nina a aio tosis Waa Rh

Notice of Status of Maintenance Regulations, 45 Fed. Reg.

eee I TE ah cib ddd usecase canbedewe

Aftermarket Parts Certification Regulations, 45 Fed. Reg.

78448 (November 25, 1980). ............. 00 cee eee

Vili

Table of Authorities Continued

MISCELLANEOUS MATERIALS: PAGE

1 W. Barron & A. Holtzoff, Federal Practice and

Procedure §23 (Wright ed. 1960) .................. 20

—~w

’*%

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

MoToR VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., A NEW YORK CORPORATION;

AMERICAN Motors CORPORATION, A MARYLAND

CORPORATION; CHRYSLER CORPORATION AND GENERAL

Motors CORPORATION, DELAWARE CORPORATIONS;

VOLKSWAGEN OF AMERICA, INC., A NEW JERSEY

CORPORATION; DETROIT AUTOMOBILE DEALERS

ASSOCIATION, INC., AND MICHIGAN AUTOMOBILE

DEALERS ASSOCIATION, INC., MICHIGAN

CORPORATIONS, Petitioners,

Vv.

Douc.Las M. CosTLeE, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINIONS AND ORDERS BELOW

The opinions and orders of neither the district court

nor the court of appeals have been published. A copy of

the court of appeals’ Order is included in the appendix

at App. 13a; copies of the Opinion and Order of the

district court are included at App. la and App. 9a,

respectively.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1) and 28 U.S.C. 1651:

**§1254. Courts of appeals; certiorari; appeal; cer-

tified questions

**Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

“*(1) By writ of certiorari granted upon the peti-

tion of any party to any civil or criminal case before

or after rendition of judgment or decree;... .’’

**$1651. Writs

‘**(a) The Supreme Court and all courts establish-

ed by Act of Congress may issue all writs necessary

or appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.

‘*(b) An alternative writ or rule nisi may be issued

by a justice or judge of a court which has jurisdic-

tion.’’

The court of appeals’ Order was issued on

September 19, 1980. That court denied a timely petition

for rehearing on October 23, 1980, App. 2la , the man-

date of the court of appeals theretofore having been

issued on September 30, 1980, App. 19a.

STATUTES INVOLVED

The pertinent sections of the Clean Air Act involved

in this appeal are §207, 42 U.S.C. 7541; §304, 42 U.S.C.

7604; and §307(b), 42 U.S.C. 7607(b). Their texts are set

forth verbatim in the appendix at App. 27a, App. 33a

and App. 37a.'

' Citations in this brief, unless otherwise noted, are to the Clean

Air Act, the ‘‘Act’’, as amended. Parallel citations to Title 42 of

the United States Code are provided in the Table of Authorities.

CONCISE STATEMENT OF THE CASE

This suit involves the jurisdictional relationship be-

tween §304(a)(2), the citizen suit provision of the Clean

Air Act, the ‘‘Act’’, and §307(b), the Act’s exclusive

review provision, as they apply to the Administrator’s

failure to perform nondiscretionary duties under §207 of

the Act.

On May 22, 1980, EPA promulgated, to be effective

60 days later on July 21, 1980, emissions performance

warranty regulations which required automobile

manufacturers to warrant the performance of the emis-

sions control systems of their light-duty vehicles for their

useful lives provided the vehicles are maintained in ac-

cordance with written maintenance instructions issued by

the manufacturers.’

The respondent is required by §207 to issue two

other sets of regulations governing maintenance instruc-

tions, §207(c)(3), and aftermarket parts certification,

§207(a)(2). Petitioners claim, and respondent denies, that

respondent has a nondiscretionary duty to promulgate

those two regulations before requiring automobile

manufacturers to issue emissions performance warranties

because the manufacturers’ liabilities under the warran-

ties are affected by the maintenance instructions and by

the use or non-use of certified replacement parts.

On June 30, 1980, EPA announced that develop-

ment of proposed maintenance regulations was being

“temporarily postponed’’. 45 Fed. Reg. 44117 (June 30,

1980), App. 39a. Work also was then in progress on pro-

? 45 Fed. Reg. 34829 (May 22, 1980), codified as 40 CFR Part

85, Subpart V (1980). Section 202(d) of the Act establishes that the

useful life of a light duty motor vehicle or engine is 5 years or

50,000 miles, whichever first occurs.

posed regulations for certification of aftermarket parts,

but those regulations were not promulgated until

November 25, 1980, long after the effective date of the

warranty regulations and even after the hearings both in

the district court and in the Sixth Circuit.’

Some of petitioners notified respondent on July 12,

1980, pursuant to §304(b), of his failure to perform non-

discretionary duties under the Act. On July 18, 1980,

petitioners brought suit in the district court under the

citizen suit provision of the Act, §304(a)(2), alleging

that, before EPA lawfully can enforce the emissions per-

formance warranty regulations, it is compelled by §207

to promulgate the two other related sets of regulations.*

Petitioners alleged further that enforcement of the war-

ranty regulations prior to the promulgation of the two

missing sets of regulations would cause them irreparable

injury. P xspondent did not assert as a defense to the ac-

tion petitioners’ inability to comply with the 60 day

notice provision of §304(b) before suit normally may be

commenced and the district court found that the

statutory notice given was reasonable under the cir-

cumstances which were created by the respondent.

District Court Opinion, App. 2a.

Trial occurred on August 15, 1980, at which time

the district court, Judge Anna Diggs Taylor, presiding,

ruled: (a) that §207 did require EPA to promulgate the

two related sets of regulations, as petitioners contended,

before enforcing the performance warranty regulations;

> 45 Fed. Reg. 78448 (November 25, 1980).

* Jurisdiction also was asserted under the Mandamus Act, 28

U.S.C. 1361; the Declaratory Judgment Act, 28 U.S.C. 2201 and

2202; and the Administrative Procedure Act, 5 U.S.C. 706. The

Sixth Circuit held that the district court had jurisdiction under sec-

tion 304 of the Clean Air Act. App. 33a.

(b) that EPA had failed to do so; and (c) that under

such circumstances, petitioners would be irreparably in-

jured by immediate enforcement of the warranty regula-

tions. App. 4a to 7a. The district court neither ruled

upon the validity of the warranty regulations nor the

procedures .ollowed by EPA in issuing them, although

the Sixth Circuit mistakenly said that it did. On August

27, the district court issued both a declaratory judgment

incorporating its August 15 ruling and an injunction en-

joining enforcement of the warranty regulations until the

model year after promulgation of the missing regula-

tions. App. 9a.

The district court, in issuing its injunctive order,

specifically found that:

“Each of the plaintiffs and the public at large

would sustain irreparable injury if this Court were

not to stay and enjoin the implementation of defen-

dant’s May 22 regulations until the regulations

governing maintenance, use, and after market parts

certification have been promulgated.

* * *

“It can’t be denied, and this Court finds, that

this scheme would create irreparable divisions be-

tween plaintiff American automcbile manufacturers

and dealers and their customers, concerning the

reliability of plaintiffs’ product, and their will-

ingness to stand behind it, whether no instructions

on maintenance are issued, or overly stringent in-

structions are issued, or overly loose instructions are

issued. The entire area would be disputed as a result

of defendant’s failure to act as they were dicected,

and not only loss of goodwill but a $10,000 per

vehicle penalty for any miscalculation will result, to

the manufacturers.

“‘The manufacturers’ present inability to designate

any certified after market parts creates the same

problem. And no battle with the customer could

really be won. There would also be irreparable in-

jury in the adoption and later correction of pro-

cedures which later might prove unnecessary or im-

proper and there is the incalculable cost thereof,

and the incalculability of costs... [is] itself ir-

reparable damages, and, again, the loss of market

position to be sustained if and when those costs are

attempted to be passed on to the American car

buyer, the cost of the defendant’s behavior.’’

District Court Opinion, App. Sa to 6a.

Instead of issuing a writ of mandamus or man-

datory injunction to compel issuance of the maintenance

and parts certification regulations, the district court

issued a declaratory judgment and an injunction pro-

hibiting enforcement of the performance warranty

regulations pending EPA’s compliance with the Act,

concluding that they would provide sufficient induce-

ment for the agency to perform its statutory duties.

District Court Order, App. 10a to Ila.

EPA appealed to the Court of Appeals for the Sixth

Circuit and moved for summary reversal or, alternative-

ly, for stay of the injunction pending appeal. The mo-

tion was heard on September 11 by Judges Martin,

Jones and Peck of the Sixth Circuit. On September 19,

an Order was issued vacating the injunction, leaving the

declaratory judgment intact, and ‘‘transferring the case”’

to the United States Court of Appeals for the District of

Columbia Circuit. Sixth Circuit Order, App. 13a. On

December 15, 1980, the latter court disclaimed jurisdic-

tion to review a decision of the district court in the

Eastern District of Michigan and transferred the case

back to the Sixth Circuit. D.C. Circuit Order, App. 23a.

On January 7, 1981, the Sixth Circuit requested briefs

from respondent’s counsel on the appeal from the

district court’s order. Sixth Circuit Clerk’s letter, App.

25a.

The Sixth Circuit, in its September 19 ruling, held

that the district court could ‘‘fuliy and completely grant

relief?’ under §304(a)(2) by ordering EPA to issue the

missing regulations, but that ‘‘... If it is necessary to

enjoin the enforcement of the performance warranty

regulations or to consider their viability, because the per-

formance warranty regulations are invalid without pro-

per parts certification and maintenance regulations, then

such actions must be brought pursuant to Section

307(b)(1) in the Court of Appeals for the District of Col-

umbia. .. .’’ Sixth Circuit Order, App. 18a. The Sixth

Circuit did not review the district court’s finding that

respondent had failed to perform a nondiscretionary du-

ty nor did it consider any of the factual findings of in-

jury which led the district court to enter its injunctive

order. Instead, the Sixth Circuit ruled simply that the in-

junction had been entered without jurisdiction.

The Sixth Circuit’s ruling acknowledged the district

court’s §304(a)(2) jurisdiction to compel agency action,

but held that relief from the irreparable injuries that the

agency’s failure to act had caused could only be sought

in a separate proceeding under §307(b) in the District of

Columbia Circuit. Petitioners asked this Court to review

that Order which drastically curtails the relief obtainable

in a citizen suit to compel an agency to perform its

statutory duty whenever it is necessary to enjoin the en-

forcement of a regulation subject to §307(b) review.’

Upon the Sixth Circuit’s vacating the injunction,

manufacturing petitioners issued emissions performance

warranties for their 1981 model year vehicles condition-

ed, however, upon the outcome of litigation over the

warranty regulations. If petitioners ultimately prevail,

* Review of the district court’s declaratory judgment is now

before the Sixth Circuit and is not a subject of this petition.

the emissions performance warranties will be invalid,

although owners of 1981 model year vehicles will con-

tinue to be protected by the normal manufacturer’s war-

ranty issued to purchasers of new vehicles and by the 5

year/50,000 mile emissions control defect warranty man-

dated by §207(a) of the Act.

REASONS FOR GRANTING THE WRIT

A number of statutes which provide for comprehen-

sive regulatory agency supervision include district court

remedies by which any citizen, without regard for con-

siderations of standing, may compel agencies to perform

nondiscretionary duties. Those statutes often also con-

tain exclusive review provisions sharply restricting the

courts in which interested parties with standing to do so

may seek judicial review of the substantive and pro-

cedural validity of regulations promulgated or final agen-

cy action taken.°

The ruling below, if allowed to stand, will effective-

ly hamstring the efficacy of such citizen suits by depriv-

ing the district courts of power to provide effective

remedies when, contemporaneous with and as a direct

result of an agency’s failure to perform nondiscretionary

duties, other agency actions or regulations threaten ir-

reparable injury. Such ruling not only defeats Congress’

purpose to provide effective citizen suits, but it also

undercuts traditional notions of a district court’s

* Other federal statutes which authorize citizen suits in the district

courts and provide for exclusive jurisdiction for review of regula-

tions or final agency action in the United States Courts of Appeals

are: the Federal Water Pollution Control Act, see 33 U.S.C. 1365

and 1369; the Outer Continental Shelf Lands Act, see 43 U.S.C.

1349; the Noise Control Act, see 42 U.S.C. 4911 and 4915; and the

Resource Conservation and Recovery Act, see 42 of U.S.C. 6972

and 6976.

jurisdiction to grant ancillary relief in resolving a case

over which it has subject matter jurisdiction.

No prior decision of this Court has attempted to

harmonize the effective reach of citizen suit provisions

and exclusive review provisions. However, in Sierra Club

v. Ruckelshaus, 344 F. Supp. 253 (DDC), aff’d per

curiam, 4 ERC 1815 (DC Cir. 1972), aff’d by an equally

divided Court sub nom. Fri v. Sierra Club, 412 U.S.

541, 93 S. Ct. 2770, 37 L. Ed. 2d 140, reh. den’d, 414

U.S. 884, 94 S. Ct. 33, 38 L. Ed. 2d 132 (1973), the

Court upheld the power of a district court in a §304

citizen suit to enjoin the EPA Administrator from acting

upon regulations he had issued until he performed his

nondiscretionary duty to issue further regulations despite

the Administrator’s argument in the district court that

the predecessor to §307 provided plaintiffs with ap-

propriately complete relief and that they should have

sued in the court of appeals.

Scope of Citizen Suits Under §304(a)(2)

In §304(a)(2) of the Act, Congress authorized ‘‘any

person’’, without regard to amount in controversy,

citizenship, standing or damage, to bring suit in the

district courts to require the Administrator to perform

nondiscretionary duties. Section 304(a)(2) provides, in

pertinent part:

‘*(a)... any person may commence a civil action

on his own behalf...

x * *

**(2) against the Administrator where there is

alleged a failure of the Administrator to perform

any act or duty under this Act which is not discre-

tionary with the Administrator... .

* * *

‘‘The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties . . . to order the Administrator to

perform such act or duty... .”’

Congress further recognized that injunctive relief

properly could be sought in such action. Section 304(d)

provides, in pertinent part:

‘“(d) .. . The court may, if a temporary restrain-

ing order or preliminary injunction is sought, re-

quire the filing of a bond or equivalent security in

accordance with the Federal Rules of Civil Pro-

cedure.”’

In §307(b)(1) of the Act, Congress provided that

judicial review of nationally applicable regulations pro-

mulgated or final action taken by the Administrator

could only be brought in the District of Columbia Cir-

cuit. Section 307(b)(1) provides, in pertinent part:

**(b)(1) A petition for review of action of the Ad-

ministrator in promulgating ... any ... nationally

applicable regulations promulgated, or final action

taken, by the Administrator under this chapter may

be filed only in the United States Court of Appeals

for the District of Columbia... .’’

The issue presented is whether the district court, in

exercising its §304(a)(2) jurisdiction, impermissibly in-

fringed upon the exclusive jurisdiction of the District of

Columbia Circuit under §307(b) when it enjoined en-

forcement of the performance warranty regulations until

the respondent promulgates the other two sets of regula-

tions required of him by the Act.

The Sixth Circuit ruled that the district court could

have ordered the respondent Administrator to perform

nondiscretionary statutory duties. Sixth Circuit Order,

App. 18a. See also Natural Resources Defense Council,

Inc. v. Train, 411 F. Supp. 864 (SDNY), aff’d, 545 F.2d

320 (2d Cir. 1976). The Sixth Circuit should have ruled,

in addition, that the district court had jurisdiction to

grant injunctive relief to protect petitioners from the ir-

reparable injury which the district court found would oc-

cur because of the Administrator’s failure to perform his

nondiscretionary duties before enforcing his performance

warranty regulations. See Sierra Club v. Ruckelshaus,

supra.

However, without analysis or even consideration of

the irreparable injury found by the district court, the

Sixth Circuit ruled that the district court lacked jurisdic-

tion to enjoin enforcement of the performance warranty

regulations, mistakenly concluding that the district

court’s injunction was predicated upon that court’s

determination that the performance warranty regulations

were invalid absent promulgation of parts certification

regulations and maintenance regulations. Determination

of invalidity of the performance warranty regulations,

the Sixth Circuit said, was within the exclusive review

jurisdiction of the District of Columbia Circuit pursuant

to §307(b). Sixth Circuit Order, App. 18a.

The district court’s conclusion, as expressed in its

opinion and declaratory judgment, did not include a fin-

ding that respondent’s emissions performance warranty

regulations are invalid for any reason, substantive or

procedural, notwithstanding the Sixth Circuit’s mistaken

belief that it did.’ The district court’s decision has no ef-

’ The Sixth Circuit’s Order, App. 18a, reveals that the court

believed the injunction was issued ‘‘because the performance war-

ranty regulations are invalid without proper parts certification and

maintenance regulations’’ and that such relief is obtainable only in

a §307(b) action. Nothing in the district court’s Opinion or Order

substantiates the Sixth Circuit’s belief. Nowhere in its Order does

-*%

fect upon the validity of the warranty regulations’ provi-

sions. They remain intact, subject to review by the

District of Columbia Circuit under §307(b).* The district

court’s injunction merely suspended enforcement of the

warranty regulations until the Administrator has fulfilled

all of his statutory nondiscretionary duties under the

Act.

The Sixth Circuit vacated the district court’s injunc-

tion on the ground that it constituted impermissible

‘‘review’’ of the warranty regulations’ validity, which

§307(b) reserves exclusively for the District of Columbia

Circuit. If that ruling be correct, §304(a)(2) citizen suits

cannot provide complete and effective relief whenever

the district court’s order must in any way affect a

regulation theretofore promulgated or final action taken

which is subject to §307(b) review. That result is unsup-

the Sixth Circuit consider petitioners’ and the district court’s ex-

planations that the validity of the performance warranty regulations

was neither challenged by petitioners nor adjudicated by the district

court and that the injunction was ancillary relief to protect peti-

tioners from irreparable harm in the interim before respondent

could comply with all of the requirements of §207, as interpreted by

the district court. See Part Il, infra.

* Some of petitioners have filed a petition for review of the per-

formance warranty regulations under §307(b) in the District of Col-

umbia Circuit, No. 80-1828, but no such review was sought or ob-

tained from the district court in the Eastern District of Michigan.

The District of Columbia Circuit review involves a myriad of issues

relating to the validity of the performance warranty regulations

such as, for example, the inadequacy of the administrative record

to support the regulations’ provisions, procedural irregularities in

their promulgation, inclusion of provisions beyond the scope of the

Administrator’s statutory authority, and the like. Those are objec-

tions to the regulations which clearly require the District of Colum-

bia Circuit to ‘‘review’’ the performance warranty regulations to

determine their intrinsic validity.

ported by law and impairs Congress’ purpose to provide

effective citizen suit remedies under the Clean Air Act

and under other statutes with similar provisions. Citizen

suits, expressly created to avoid standing problems, are

drastically limited by the Sixth Circuit’s narrow inter-

pretation of the jurisdictional scope of those special

statutory rights to su

Few citizens will invoke §304(a)(2) type rights if, at

best, only partial relief will be available to them in such

suits. The §307(b) remedy is even less available to most

citizens precisely because they lack standing or because

they seek only to challenge the Administrator’s failure to

perform statutory duties which can be brought only ina

district court under a citizen suit provision such as

§304(a)(2).

In addition, citizens with otherwise valid citizen suit

claims may not be aware of other regulations or final ac-

tions upon which their suits may impact until long after

the limited 60 day period for §307(b) review of such

regulations or actions has passed. As Justice Powell

stated, concurring in Adamo Wrecking Co. v. United

States, 434 U.S. 275, 290, 98 S. Ct. 566, 575, 54 L. Ed.

2d 538 (1978):

‘The 30-day [now 60-day] limitation on judicial

review imposed by the Clean Air Act would afford

precariously little time for many affected persons

even if some adequate method of notice were af-

forded. It also is totally unrealistic to assume that

more than a fraction of the persons and entities af-

fected by a regulation — especially small contractors

scattered across the country — would _ have

knowledge of its promulgation or familiarity with or

access to the Federai Register. .. .’’

°%

The practical effect of the Sixth Circuit’s ruling is

virtually to preclude any suit by citizens whenever a

district court’s §304(a)(2) remedy, whether by injunction

or otherwise, would have any effect on regulations or

final agency actions which are or were subject to §307(b)

review. Section 307(b) does not so require, nor does any

other provision of the Act.

Nothing in the Act limits a district court’s authority

under §304(a)(2) to grant relief required by the court’s

interpretation of the Act’s provisions. Section 307(b)

grants courts of appeals exclusive jurisdiction only to

review regulations promulgated or final actions taken

under statutory authority. The Sixth Circuit, in reality,

extended the breadth of exclusive review under §307(b)

to include judicial review of the Act itself.

The substantive content of the warranty regulations

and the specific procedures by which they had been pro-

mulgated were of no importance in the district court

proceedings and played no part therein. The Sixth Cir-

cuit deprived petitioners’ §304(a)(2) remedy of any mean-

ing when it leap-frogged into §307(b) by concluding,

mistakenly, that a regulation which the district court

never read, nevertheless, had been subjected to ‘‘judicial

review’’ by that court.

The respondent announced he would make the per-

formance warranty regulations effective on the 60th day

following their promulgation. It was the impending re-

quirement that automobile manufacturers issue emissions

performance warranties before they were apprised of the

maintenance and parts certification regulations’ provi-

sions, not the specific warranty regulations that had been

promulgated, which gave rise to petitioner’s §304(a)(2)

cause of action. In effect, the respondent ‘‘jumped the

gun’’ by seeking to implement performance warranties

before he had fully complied with the statutory scheme

had not been affected by respondent’s failure to meet

the Act’s August 7, 1979 deadline for promulgation of

parts certification regulations’, nor by his delay in pro-

mulgating maintenance regulations. They became af-

fected by respondent’s failures, however, when he an-

nounced he was going to require automobile manufac-

turers to issue warranties even before the supporting

regulations had been promulgated. Petitioners moved

promptly under §304(a)(2) to compel promulgation of

the supporting regulations before enforcement of the

warranty regulations by instituting suit as soon as they

could in the district court, the only court where such

relief could be obtained directly without having to

challenge the validity of the performance warranty

regulations.

The district court’s ruling did not interfere with the

legitimate scope of §307(b). As noted in footnote 8,

supra, the petitioners seeking review under §307(b) are

not requesting injunctive relief against enforcement of

the warranty regulations pending issuance of the sup-

porting regulations but, rather, are challenging the

validity of those warranty regulations on substantive and

procedural grounds. Nor did the district court’s ruling

establish an exception to §307(b) which would threaten

its intended function. Petitioners established in the

district court that the Administrator had failed to per-

* Section 207(a)(2) of the Act required respondent to promulgate

those regulations two years after the effective date of the 1977

amendments io the Act. The deadline for promulgation was,

therefore, August 7, 1979, rather than August 7, 1977, as stated by

the Sixth Circuit. Sixth Circuit Order, App. 15a.

’>

form very significant nondiscretionary statutory duties

and that such failures, coupled with immediate enforce-

ment of the warranty regulations, would cause ir-

reparable injury both to a major industry and to the

American public as well. That is precisely the type of

situation for which a citizen suit was designed to afford

prompt and effective relief. Instead, the Sixth Circuit’s

decision virtually mandates bifurcation of litigation in

such circumstances, at least when the 60 day. review

period had not run. See Adamo Wrecking, p. 13, supra.

Under the Sixth Circuit’s ruling, a citizen may seek

only a limited mandamus remedy in the district court

and is then without further remedy in that court despite

continuing and irreparable injury resulting from the Ad-

ministrator’s failures. To receive full relief in a case like

this, the citizen must journey to a distant appellate court

for further protection in aid of the district court’s ruling.

In view of the increasing welter of administrative agency

rulings, regulations and actions subject to §307(b)

review, see Harrison v. PPG Industries, Inc., 446 U.S.

578, 100 S. Ct. 1889, 64 L. Ed. 2d 525 (1980), there will

be countless situations in which an order compelling an

agency to act has an impact upon regulations theretofore

promulgated or action the agency previously has taken.

The Sixth Circuit’s ruling elevates any such ‘‘impact’’ to

the level ‘of §307(b) ‘‘review’’ of such regulations or ac-

tions, thereby foreclosing appropriate relief in a

§304(a)(2) action. A more effective discouragement of

citizen suits hardly can be imagined. Such a result cannot

have been in the contemplation of Congress.

‘Indeed, the bifurcation mandated by the Sixth Cir-

cuit’s ruling is particularly oppressive in view of the fact

that injunctive relief, if permissible only under §307(b),

would have had to have been sought in the District of

Columbia Circuit within 60 days of the promulgation of

the warranty regulations while, at the same time, the

citizen suit under §304(a)(2) proceeded in the district

court in Detroit, Michigan. Since the grant of the injunc-

tion would depend upon the success, or likelihood

thereof, of the proceedings in the district court, the Sixth

Circuit’s artificial severance of these proceedings results

in exquisite timing problems, obvious repetition in sub-

mitting proofs, and a virtual death blow to the

maintenance of a §304(a)(2) citizen suit.

District Court’s Jurisdiction To Grant Ancillary Injunc-

tive Relief

The Sixth Circuit acknowledged that the district

court had jurisdiction in a suit under §304(a)(2) to com-

pel EPA’s, Administrator to issue the maintenance and

the parts certification regulations required of him by

§207 of the Act. Sixth Circuit Order, App. 18a. Judge

Taylor stated in her Order, par. 5, App. 10a to Ila, that

she would not issue a writ of mandamus or mandatory

injunction compelling respondent to perform his

statutory duties because she believed that her declaratory

judgment and grant of injunctive relief would induce

respondent’s compliance with such duties. Judge Taylor

was undoubtedly correct in believing that what she did

was the essential equivalent of a writ of mandamus.'°

The injunction, however, was something more than

just a practical substitute for a writ of mandamus. Had

it not been vacated, it would have protected petitioners,

'© See National Treasury Employees Union v. Nixon, 492 F.2d

587 (DC Cir. 1974), where declaratory relief was provided under

mandamus jurisdiction in lieu of the actual writ of mandamus.

’*

’-*%

as a writ of mandamus could not then have done, from

respondent’s imposing upon automobile manufacturers a

warranty obligation the district court had ruled, in light

of the Act’s unfulfilled requirements, was both

premature and irreparably injurious.''

If the district court had jurisdiction to order respon-

dent to issue the maintenance and the parts certification

regulations, as the Sixth Circuit concluded, it had

jurisdiction to explain its decision, for example, by is-

suance of its declaratory judgment. See National

Treasury Employees Union v. Nixon, 492 F.2d 587 (DC

Cir. 1974). It also had the power to issue an injunction

based on such declaration and its findings of irreparable

injury. See the All Writs Act, 28 U.S.C. 1651, and §2 of

the Declaratory Judgment Act, 28 U.S.C. 2202.

If the district court’s declaratory judgment, that

§207 imposed mandatory duties upon EPA to be per-

formed before the agency could require issuance of war-

ranties, had been issued with a writ of mandamus, it

would have accorded petitioners relief only in futuro

upon EPA’s compliance with such a writ. Such orders,

however, except for their res judicata value, would not

effectively have prevented respondent from causing ir-

reparable injury to petitioners who would have been re-

quired to continue issuing warranties during the period it

would have taken him to comply with such a writ of

mandamus. For that reason, the district court determin-

ed that its declaratory judgment and an injunction would

grant more effective relief to petitioners in the cir-

'' Congress expressly contemplated that injunctive relief would be

granted in citizen suits under §304. Subsection 304(d), quoted at p.

10, supra, provides for requiring a bond or equivalent security

when a temporary restraining order or preliminary injunction is

sought in any §304 action.

cumstances then existing than would its declaratory judg-

ment and a writ of mandamus.

By denying the district court’s right to grant injunc-

tive relief instead of a writ of mandamus, the Sixth Cir-

cuit undermined the universally recognized power of a

district court to ‘‘mould each decree to the necessities of

the particular case’’,'? and to fashion relief on the princi-

ple that the scope of the remedy is determined by the

nature and extent of the wrong.'? While the more recent

of the cases cited in footnote 13 all involved the extent

of a district court’s power to fashion effective relief in

school desegregation cases, the underlying principle, that

a district court has the power to grant ancillary relief to

make effective its determination of a controversy over

which it has subject matter jurisdiction, has been

recognized and applied generally to other controversies.

E.g., Allee v. Medrano, 416 U.S. 802, 812-814, 94S. Ct.

2191, 2198-2199, 40 L. Ed. 2d 566, (1974); Riggs, supra,

73 U.S. at 187; and Morrow v. District of Columbia,

417 F. 2d 728, 737 (DC Cir. 1969).'*

'* Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 592, 88

L. Ed. 754 (1944).

'» Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127, 41

L.Ed.2d 1069 (1974). See also Swann v. Charlotte-Mecklenberg

Board of Education, 402 U.S. 1, 15, 91 S. Ct. 1267, 1276, 28 L.

Ed. 2d 554 (1971); Brown v. Board of Education, 349 U.S. 294,

300, 75 S. Ct. 753, 756, 99 L. Ed. 1083 (1955); Riggs v. Johnson

County, 73 U.S. 166, 187, 18 L.Ed. 786 (1868).

'*In Morrow at page 732-733, Judge J. Skelly Wright com-

prehensively examined the issue of the ancillary power of federal

courts. In footnote 10 of his opinion, he summarized his analysis:

**. . . two different types of judicial power are presented by

this case. The first is the power of a court to issue different

types of remedies to effectuate its conceded jurisdiction over

some subject matter. . . . The second is the power of a court fo

The Sixth Circuit simply erred in denying the district

court’s power to grant ancillary injunctive relief to effec-

tuate its §304(a)(2) jurisdiction. That error, unless cor-

rected, deprives petitioners of effective §304(a)(2) relief

which the Sixth Circuit acknowledged the district court

had the power to grant, Sixth Circuit Order, App. 17a to

18a, and which the district court believed it was gran-

ting. District Court Order, par. 5, App. 10a to Ila.

Petitioners at no time claimed entitlement to injunc-

tive relief except as ancillary to other relief for which

there clearly was a jurisdictional basis. If there is a

jurisdictional basis for the principal relief sought, an-

cillary relief may be granted at the discretion of the trial

court even if it would have no independent jurisdiction

to grant such relief. See Morrow, supra. The Sixth Cir-

cuit isolated the ancillary relief sought, decided there was

no jurisdiction to grant ancillary relief alone, and ended

its consideration of this matter there. That occurred 1)

despite the holding of the district court that it had

jurisdiction over the principal relief sought (i.e., relief in

the nature of mandamus under §304); 2) despite the

Sixth Circuit’s own recognition of §304(a)(2) jurisdiction

in the district court;'* and 3) despite the specific findings

assert jurisdiction over a subject matter different from, but

related to, a matter properly before the court... .

‘‘We note this distinction because some commentors refer to

both types of power as ‘ancillary jurisdiction.’ See 1 W. Bar-

ron & A. Holtzoff, Federal Practice and Procedure §23

(Wright ed. 1960). We think the term ‘ancillary jurisdiction’ is

more appropriate to the latter power — it connotes the court

taking jurisdiction in a matter over which, but for a pending

matter, it would have no jurisdiction. The former power is

more apprppriately seen as involving the form or style of relief

granted by a court regarding a subject matter independently

within its jurisdiction.’’ Emphasis in original text.

'* **The district court can fully and completely grant relief for the

failure of the Administrator to issue mandatory regulations pur-

by the district court of irreparable injury, a finding un-

touched by the Sixth Circuit.

If the district court had such jurisdiction, which

nobody contests, then it also had the power to grant an-

cillary relief by issuing such writs and orders as were

necessary to enforce its judgment and protect its jurisdic-

tion. The Sixth Circuit never reached that issue because

of its analysis, in isolation, of the ancillary relief

granted. Such misapprehension regarding the nature of

the relief petitioners sought below. was crucial, just as it

would be in any case in which a court considers only the

jurisdictional basis for ancillary relief and, finding none,

rejects the case in chief for which there is jurisdiction.

CONCLUSION

The Sixth Circuit recognized that the district court

had jurisdiction under §304(a)(2) to compel respondent

to supply the missing regulations, but improperly con-

strued §307(b) to deny to the district court jurisdiction to

make its order of compulsion effective. By a strained in-

terpretation of ‘‘judicial :eview’’ the court of appeals

barred the district court from effectively enforcing man-

datory duties identifiable from the Act itself.

Such restriction of the district court’s jurisdiction is

not mandated by the Act; on the contrary, because it has

the effect of gutting the citizen suit remedy of §304 -

(a)(2), such restriction frustrates the intent of Congress

suant to Section 207(a)(2) and Section 207(c)(3) of the Clean Air

Act by ordering the Administrator to issue parts certification and

maintenance instruction regulations... .’’ Sixth Circuit Order,

App. 17a to 18a. Petitioners, of course, do not agree with the Sixth

Circuit’s belief that a mere order compelling issuance of the missing

regulations would constitute adequate relief. See discussion at pp.

17-20, supra.

to provide for such citizen suits in the district courts.

The ruling of the court of appeals also takes from the

district courts their power, based on both statute and the

common law, to issue the ancillary writs and orders

necessary to effectuate relief they have jurisdiction to

grant.

This case illustrates the potential for harm, for in-

justice, which exists in the absence of effective judicial

restraint upon the exercise of powers delegated to ad-

ministrative agencies. District Judge Taylor defined its

scope in her opinion and identified accurately its cause in

this case:

‘‘This brings us to the irreparable injury to the

American car buying public; to the national interest

in clean air on which the Congressional scheme was

based; and to the millions of Americans whose

livelihood hinges on the survival of the automobile

industry. All are seriously and irreparably disserved

by the administrator’s whimsical failure to meet

nondiscretionary duties, while demanding com-

pliance with nonexistent rules. There is no public in-

terest whatsoever served by such a situation.”’

District Court Opinion, App. 6a to 7a.

Judge Taylor’s remedial order would have ac-

complished substantial justice within traditional notions

of jurisdictional power, but the Sixth Circuit’s Order un-

does that. More importantly, it practically immunizes

such agency action and inaction as are here involved

from any restraint except the agency’s own self-restraint.

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

THEODORE SOURIS

BODMAN, LONGLEY &

DAHLING

34th Floor

100 Renaissance Center

Detroit, Michigan 48243

(313) 259-7777

Attorneys for Petitioners

Of Counsel:

WILLIAM H. CRABTREE

Vice President and General Counsel

CHARLES H. LocKwoop

Motor VEHICLE MANUFACTURERS

ASSOCIATION OF THE

UNITED STATES, INC.

300 New Center Building

Detroit, Michigan 48202

KENNETH I. GLUCKMAN

AMERICAN Motors CORPORATION

The American Center

27777 Franklin Road

Southfield, Michigan 48034

THOMAS P. DONOHUE

MICHAEL W. GRICE

Office of the General Counsel

CHRYSLER CORPORATION

P.O. Box 1919

Detroit, Michigan 4812]

Otis: M. SMITH

General Counsel

WILLIAM L. WEBER

GEORGE F. BALL

GENERAL Motors CORPORATION

3044 West Grand Boulevard

Detroit, Michigan 48202

GERHARD P. RIECHEL

VOLKSWAGEN OF AMERICA, INC.

818 Sylvan Avenue

Englewood Cliffs, New Jersey 07632

COLOMBO AND COLOMBO

By FREDERICK COLOMBO

Attorneys for

DETROIT AUTOMOBILE DEALERS

ASSOCIATION, INC.

Suite 209

1500 North Woodward Avenue

Birmingham, Michigan 48011

WILLINGHAM, CoTfé, HANSLOvVSKY,

GRIFFITH & FORESMAN, P.C.

By RAYMOND J. FORESMAN, JR.

Attorneys for

MICHIGAN AUTOMOBILE

DEALERS ASSOCIATION, INC.

1331 E. Grand River,

P.O. Box 1070

East Lansing, Michigan 48823

January 21, 1981

PETITIONERS’ APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TABLE OF CONTENTS

PAGE

Opinion of the United States District Court for the

Eastern District of Michigan..................... la

Order of the United States District Court for the Eastern

District of Michigan Entering an Injunction and a

Declaratory Judgment .................00 eee eeee 9a

Opinion and Order of the United States Court of Ap-

peals for the Sixth Circuit Vacating the Injunction

and Transferring the Case to the United States

Court of Appeals for the District of Columbia ..... 13a

Order of the United States Court of Appeals for the

Sixth Circuit Issuing Its Mandate................. 19a

Order of the United States Court of Appeals for the

Sixth Circuit Denying Petition for Rehearing....... 2la

Order of the United States Court of Appeals for the

District of Columbia Returning the Case to the Sixth

a oy ck sauce sccesscccsccesess 23a

Letter from the Clerk, United States Court of Appeals

for the Sixth Circuit Directing Appellant to File His

Tee ewe ececnses 25a

Section 207(a), (b) and (c) of the Clean Air Act, 42

ES a 27a

Section 304 of the Clean Air Act, 42 U.S.C. 7604 ...... 33a

Section 307(b) of the Clean Air Act, 42 U.S.C. 7607(b).. 37a

Notice of Status of Maintenance Regulations, 45 Fed.

Reg. 44117 (June 30, 1980) ..................04.. 39a

OPINION OF THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

Civil Action No. 80-72618

UNITED STATES OF AMERICA IN THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT OF

MICHIGAN SOUTHERN DIVISION

Motor VEHICLE MANUFACTURERS ASSOCIATION OF THE

, UNITED STATES, INC., a New York corporation; AMERICAN

‘ Motors CorRPORATION, a Maryland corporation; CHRYSLER

CORPORATION, FORD MoTOR COMPANY and GENERAL

Motors CORPORATION, Delaware corporations; VOLKSWAGEN

OF AMERICA, INC., a New Jersey corporation; and Ep

BAILEY, INC., a Michigan corporation, d/b/a Ep BAILLEY

AMC/JEEP, Plaintiffs,

DoucLas M. CostTLe, Administrator, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, Defendant.

PROCEEDINGS HAD before the HONORABLE ANNA DIGGS

TaYLor, District Judge, United States District Court, at court-

room 228 Federal Building, Detroit, Michigan, on Friday,

August 15, 1980, commencing at or about the hour of 2:00

p.m.

APPEARANCES:

BODMAN, LONGLEY &

DAHLING

By: THEODORE SOURIS

MICHAEL B. LEWISTON

Davip G. CHARDAVOYNE

FREDERICK J. DINDOFFER

34th Floor,

i00 Renaissance Center

Detroit, Michigan 48243

Appearing on behalf of the

Plaintiffs,

Official Court Reporter

Lena Van Smith

? 3

The Court would like to place its findings on the record

as it is required to do, either on application for preliminary

injunction or in disposing of the lawsuit; and this is the

Court’s final order, inasmuch as we’ve consolidated this

hearing.

The Court finds that it has jurisdiction of this matter

pursuant to the following statutes: 28 USC 1361, which pro-

vides original jurisdiction in the district courts in mandamus

to compel an officer or agency of the United States to per-

form a duty owed to plaintiff. The factors held by the case

law to justify such a Writ of Mandamus are: that the officer

has a plain duty to perform certain acts. That the plaintiff has

a plain right to the performance of those acts. That the plain-

tiff has no other remedy. This Court finds that they all exist

in this case as will be discussed.

The Court also has jurisdiction under 28 USC 1331(a)

and 1336(a), which provides original federal question jurisdic-

tion. There is no question but that this matter arises under the

laws of the United States, specifically the mandates of Con-

gress that defendant promulgate certain regulations under the

Clean Air Act.

The Court has jurisdiction under 42 USC 7604(a)2 the

citizens or persons suits provision of the Air Pollution Con-

trol Act. And the Court will not consider the 60 day notice

provision of that act to impose an absolute barrier to this

suit. See Conservation Society of Southern Vermont, Inc. ver-

sus Secretary of Transportation, 503 F.2d 927, a Second Cir-

cuit case, and others which were cited aptly in the plaintiff’s

brief.

The defendant in this suit promulgated the regulations

sought here to be stayed on May 22, 1980, precisely 60 days

prior to their effective date of July 21, 1980, thereby

precluding the possibility of plaintiff giving 60 days notice

prior to filing suit. Plaintiffs gave notice on July 11, 1980,

and filed suit on July 18, 1980, and this Court finds that such

notice was reasonable under the circumstances which were

created by the defendant.

The Court finds that the defendant administrator has

breached his plain, nondiscretionary, and mandatory duty to

plaintiffs and to the general public, as alleged by the plain-

tiffs. That is, on May 22, 1980, the defendant promulgated

certain regulations as he is authorized to do by the Air Pollu-

tion Control Act, 42 USC 7541(b).

The regulations require manufacturers to warrant the

emission control device or system of every new motor vehicle

manufactured in the model year commencing after their effec-

tive date of July 21st 1980.

This means that they govern warranties on all vehicles

commencing to be manufactured this August, this month, for

the 1981 model year. Congress provided that the manufac-

turers’ warranty required by these regulations shall run to

ultimate purchasers and shall promise that: If the vehicle or

engine is maintained and operated in accordance with instruc-

tions which the manufacturer must give in accordance with

other regulations, and if aftermarket parts which are certified

in accordance with yet other regulations are used in the

vehicles, then the manufacturer will bear the cost of and

remedy any nonconformity of the vehicle with State or

Federal clean air laws which might result in penalties. This

responsibility is on the manufacturer for the useful life of the

vehicle or engine, which the Court understands is 50,000 miles

or five years.And a manufacturer’s failure to honor the war-

ranties or the general regulatory scheme will result in a penal-

ty of $10,000 per vehicle.

The law also provides at 42 USC 7541(c)(3)(A) that the

manufacturer shall furnish with each new vehicle written in-

structions for proper maintenance care which shall comply

with the maintenance regulations which the defendant ad-

ministrator shall promulgate. Moreover, the law requires that,

in bold-face type on the first page of those instructions, the

manufacturer advise consumers that repairs may be made by

any establishment using the certified automotive parts which

have been provided by administrative regulations.

Clearly Congress intended and has directed that the ad-

ministrator promulgate regulations to certify parts, and to

govern proper maintenance and use, prior to his promulgation

of the regulations requiring warranties and instruction books

which must be based upon those regulations.

But the administrator has not done so and has created a

clear Catch 22, not only for the manufacturers and the dealers

for whom any course of action, (other than selling no cars) is

equally likely to result in enormous penalties and loss of

business, but also for the consumer, who would be buying a

controversy, if he buys a car under such administratively-

created disorder.

The regulations governing certification of after market

parts are required by 42 USC 7541(a)(2). That section states:

“The Administrator shall promulgate such regulations no

later than two years following the date of enactment of

this paragraph’’,

which was enacted August 7, 1977. Those regulations have

not yet today been promulgated by defendant administrator.

Regulations for instructions for proper maintenance and

operation are required by 42 USC 7541(c)(3), and have not yet

even been proposed by the administrator. According to the

administrator’s own publication in the federal record, indeed,

he announced a postponement in June of 1980, his counsel

have made many contradictions on the record of that fact;

has offered no proof; has maintained that these regulations

exist; but they are demonstrably not present in the booklet

presented to the Court.

Obviously, Congress intended the administrator to act

prior to the manufacturers’ instruction books in making these

regulations. To construe the language otherwise is to compel

the administrator’s later regulations possibly to include all

terms of all manufacturers’ instruction books, and, therefore,

delegate the regulatory responsibility to the manufacturers.

Such intention will not be construed by this Court.

Sa &

So the Congress, in mandatory language, has directed

that two definitive sets of regulations serve as the basis for the

regulations on warranties which the administrator has now

promulgated. But he has put the cart before the horse, to the

great injury of all concerned and promulgated neither of the

two basic sets.

To gloss over these obvious gaps in this promulgation,

the administrator has published a preamble to these regula-

tions which states that their full extent will be determined in

future rules, and that, in the meanwhile, all maintenance in-

structions shall be as ‘‘reasonable and necessary’’, but the

Congress mandated the administrator in 1977 to specify what

is reasonable and necessary. Indeed, the Congress eliminated

the previous statutory language of reasonable and necessary in

this amendment of 1977; and not intending, obviously, to

direct the manufacturers and their customers to fight it out

among themselves what is reasonable and necessary.

On the undisputed facts, defendant has failed to perform

a nondiscretionary duty, of which plaintiffs are entitled to his

performance. This Court is not being asked to review the

substance of any regulations, but to mandate the defendant’s

obedience to Congressional directives that they be prom-

ulgated in the proper and intended sequence.

Each of the plaintiffs and the public at large would sus-

tain irreparable injury if this Court were not to stay and en-

join the implementation of defendant’s May 22 regulations

until the regulations governing maintenance, use, and after

market parts certification have been promulgated.

The affidavits attached to the Complaint attest to the ir-

reparable injury to each of the plaintiffs separately, in their

particular individual business circumstances, and this Court

finds those affidavits credible.

It is unable to credit the representations of the defendant

that damages to individuals are one matter but the same

damages cumulatively sustained on the opposite side are

meaningless.

But there are more universal irreparable damages which

would flow from this proposition, if it is not stayed.

It can’t be denied, and this Court finds, that this scheme

would create irreparable divisions between plaintiff American

automobile manufacturers and dealers and their customers,

concerning the reliability of plaintiffs’ product, and their will-

ingness to stand behind it, whether no instructions on

maintenance are issued, or overly stringent instructions are

issued, or overly loose instructions are issued. The entire area

would be disputed as a result of defendant’s failure to act as

they were directed, and not only loss of goodwill but a

$10,000 per vehicle penalty for any miscalculation will result,

to the manufacturers.

The manufacturers’ present inability to designate any cer-

tified after market parts creates the same problem. And no

battle with the customer could really be won. There would

also be irreparable injury in the adoption and later correction

of procedures which later might prove unnecessary or im-

proper and there is the incalculable cost thereof, and the in-

calculability of costs in itself irreparable damages, and, again,

the loss of market position to be sustained if and when those

costs are attempted to be passed on to the American car

buyer, the cost of the defendant’s behavior.

The manufacturer’s only alternative would be the realiza-

tion of a simple loss for those expenses which could only

result in the industry’s inability to pursue the innovations

which it must, for its own survival and for ours as a society.

Supposedly, those interests were those of the administrator, as

well.

This brings us to the irreparable injury to the American

car buying public; to the national interest in clean air on

which the Congressional scheme was based; and to the

millions of Americans whose livelihood hinges on the survival

of the automobile industry. All are seriously and irreparably

disserved by the administrator’s whimsical failure to meet

nondiscretionary duties, while demanding compliance with

nonexistent rules. There is no public interest whatsoever serv-

ed by such a situation.

Accordingly, declaratory judgment will enter.

That Congress has directed that defendant may not re-

quire plaintiffs to issue emission performance warranties

under the Act until after he has previously promulgated

maintenance and parts certification regulations which are now

required by the Act’s 1977 amendments, and in no event may

he lawfully require the issuance of warranties, except as to

. . . [vehicles] manufactured in the model year beginning after

all such regulations have been promulgated.

The effective date of the emissions performance warranty

regulations promulgated by the defendant at 45 Federal

regulations enjoined until either defendant has promulgated

the maintenance and parts certification regulations which

Congress has directed; or until further order of this Court,

whichever event may first occur.

Please submit an agreed upon order at the earliest possi-

ble date, counsel.

Court is in recess.

(End of proceedings at 5:25 P.M.)

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

ENTERING AN INJUNCTION

AND A DECLARATORY JUDGMENT

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Civil Action No. 80-72618

Motor VEHICLE MANUFACTURERS ASSOCIATION OF THE

UniTeD STATES, INc., a New York corporation; AMERICAN

Motors CorPoRATION, a Maryland corporation; CHRYSLER

CORPORATION, FORD Motor COMPANY and GENERAL

Motors CorPoRATION, Delaware corporations; VOLKSWAGEN

Or America, INC., a New Jersey corporation; DETROIT

AUTOMOBILE DEALERS ASSOCIATION, INC., a Michigan cor-

poration; Ep BatLey, INc., a Michigan corporation, d/b/a

Ep Baitey AMC/Jeep; and MICHIGAN AUTOMOBILE DEALERS

ASSOCIATION, INC., a Michigan corporation Plaintiffs

DouGcLas M. CostTLeE, ADMINISTRATOR, UNITED STATES EN-

VIRONMENTAL PROTECTION AGENCY, Defendant.

Declaratory Judgment And Injunction

This action came on for trial before the Court on August

15, 1980, the Honorable Anna Diggs Taylor, District Judge,

having ordered, pursuant to Fed R Civ P 65(a)(2), that the

trial of the action on the merits be advanced and consolidated

with the hearing on plaintiffs’ application for a preliminary

injunction and defendant’s motion to dismiss. The issues hav-

ing been duly tried and a decision having been duly rendered.

The Court does hereby Order, Adjudge and Declare as

follows:

1. The findings and conclusions contained in this Court's

opinion of August 15, 1980 are incorporated herein.

2. The Court has jurisdiction to hear and determine the

matters set forth in plaintiffs’ Complaint, and to grant the

PREVIOUS PAGE WAS BLANK }

10a

relief therein requested, pursuant to the Mandamus Act, 28

USC 1361; the Declaratory Judgment Act, 28 USC 2201 and

2202, in conjunction with 28 USC 1331l(a) and 1337(a); the

Administrative Procedure Act, 5 USC 704 ef seq., in conjunc-

tion with 28 USC 1331(a); and the citizen suit provision con-

tained in section 304 of the Clean Air Act, 42 USC 7604.

3. The Court does hereby determine and declare that:

a) section 207 of the Clean Air Act, 42 USC 7541,

imposes a nondiscretionary statutory duty upon defendant to

promulgate maintenance and parts certification regulations

prior to the model year in which defendant seeks to require

plaintiff manufacturers to issue emissions performance war-

ranties under the Act, and

b) defendant has not promulgated the maintenance

and parts certification regulations required by the Act, and

c) the Act, therefore, prohibits defendant from re-

quiring plaintiff manufacturers to issue emissions performance

warranties applicable to 1981 model year vehicles as he has at-

tempted to do. 45 Fed Reg 34829 et seq. (May 22, 1980).

4. Requiring plaintiff manufacturers to issue an emissions

performance warranty at a time when defendant has failed to

perform his nondiscretionary statutory duties to promulgate

maintenance and parts certification regulations would cause

immediate and irreparable injury to plaintiffs and to the

public and, therefore, defendant hereby is enjoined from en-

forcing his emissions performance warranty regulations, 45

Fed Reg 34829, ef seq. (May 22, 1980), except as to vehicles

manufactured in a model year commencing after defendant

has promulgated the maintenance and parts certification

regulations required by section 207 of the Act, 42 USC 7541.

5. The Court concludes that its Declaratory Judgment

and grant of injunctive relief will be sufficient to induce

defendant to perform his statutory duties and that it need not,

’%

lla

therefore, issue its writ of mandamus or mandatory injunction

ordering that such duties be performed.

ANNA DiGcGcs TAYLOR

United States District Judge

August 27, 1980

13a

OPINION AND ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

VACATING THE INJUNCTION AND TRANSFERRING

THE CASE TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 80-1591

Motor VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., a New York corporation; AMERICAN

Motors CORPORATION, a Maryland corporation; CHRYSLER

CORPORATION, FoRD Motor CoMPANY and GENERAL

Motors CorPORATION, Delaware corporations; VOLKSWAGEN

Or AMERICA, INC., a New Jersey corporation; DETROIT

AUTOMOBILE DEALERS ASSOCIATION, INC., a Michigan

corporation, Ep BAILEY, INc., a Michigan corporation,

d/b/a Ep BatLEy AMC/JEEP; and MICHIGAN AUTOMOBILE

DEALERS ASSOCIATION, INC., a Michigan corporation,

Plaintiffs-A ppellees,

Douctas M. CostLe, Administrator, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Defendant-Appellant.

Order

BEFORE: MArTIN and Jones, Circuit Judges, and PEcK,

Senior Circuit Judge

The Administrator of the United States Environmental

Protection Agency (the ‘‘Administrator’’) appeals from a

judgment of the Eastern District of Michigan permanently

enjoining the enforcement of the Emission Control System

Performance Warranty Regulation, 45 Fed. Reg. 34829 (May

22, 1980). Because we hold that Section 307(b)(1) of the Clean

Air Act, 42 U.S.C. §7601(b)(1) vests in the United States

Court of Appeals for the District of Columbia exclusive

PREVIOUS PAGE WAS BLANK |

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jurisdiction of petitions to review the validity of the

performance warranty regulation, we vacate the district

court’s injunction and order the transfer of this case to the

United States Court of Appeals for the District of Columbia.

The Clean Air Act gives the Administrator the authority

to require automobile manufacturers to provide performance

warranties on automobile emission parts for certain

automobiles once he has determined that certain conditions

are met.' In Section 207(c)(3), 42 U.S.C. §7541(c)(3), the

Clean Air Act requires * the Administrator to issue

' The Act provides in relevant part:

Testing methods and procedures

(b) If the Administrator determines that (i) there are available

testing methods and procedures to ascertain whether, when in

actual use throughout its useful life . . . each vehicle and engine to

which regulations under section 7521 of this title apply complies

with the emission standards of such regulations, (ii) such methods

and procedures are in accordance with good engineering practices,

and (iii) such methods and procedures are reasonably capable of

being correlated with tests conducted ‘under section 7525(a)(1) of

this title, then---

(1) he shall establish such methods and procedures by

regulation, and

(2) at such time as he determines that inspection facilities or

equipment are available for purposes of carrying out testing

methods and procedures established under paragraph (1), he

Shall prescribe regulations which shall require manufacturers to

warrant the emission control device or system of each new

motor vehicle or new motor vehicle engine to which a

regulation under section 7521 of this title applies and which is

manufactured in a model years beginning after the

Administrator first prescribes ... 42 U.S.C. §7541(b)

(Emphasis added.)

? (3A) The manufacturer shall furnish with each new motor

vehicle or motor vehicle engine written instructions for the proper

maintenance and use of the vehicle or engine by the ultimate

purchaser and such instructions shall correspond to regulations

which the Administrator shall promulgate. The manufacturer shall

lSa

‘‘maintenance instruction’’ regulations which require reference

to the ‘‘parts certification’’ regulations’ of Section 207(a)(2),

42 U.S.C. §7541(a)(2). Section 207(a)(2) provides for the

mandatory issuance of regulations on parts certification by

August 7, 1977.

The Motor Vehicle Manufacturers Association of

America (the ‘‘Association’’) filed a complaint in district

court alleging that the Act required the Administrator to

promulgate parts certification and maintenance instruction

regulations prior to the warranty regulation. The Association

sought injunctive and declaratory relief prohibiting the

Administrator’s enforcement of the warranty regulation.

Additionally, the Association sought a writ of mandamus to

require the issuance of parts certification regulations. The

district court held that the Administrator must issue parts

certification and maintenance regulations before he can

enforce the performance warranty requirements of Section

207(b) and enjoined enforcement of the performance warranty

regulations until the model year after the parts certification

and maintenance regulations are issued.

provide in boldface type on the first page of the written

maintenance instructions notice that maintenance, replacement, or

repair of the emission control devices and systems may be

performed by any automotive repair establishment or individual

using any automotive part which has been certified as provided in

subsection (a)(2) of this section. 42 U.S.C. §7541(c)(3).

> The Act provides:

(1) In the case of motor vehicle part or motor vehicle engine

the manufacturer or rebuilder of such part may certify that use of

such part will not result in a failure of the vehicle or engine to

comply with emission standards promulgated under section 7521 of

this title. Such certification shall be made only under such

regulations as may be promulgated by the Administrator to carry

out the purposes of subsection (b) of this section. The

Administrator sha// promulgate such regulations no later than two

years following August 7, 1977.

42 U.S.C. §7541(a)(2).

°%

’%>

l6a

The Administrator argues that Section 307(b)(1) of the

Clean Air Act of 1977, 42 U.S.C. §7607(b)(1), grants

exclusive jurisdictien to the United States Court of Appeals

for the District of Columbia. Section 307(b)(1) provides in

relevant part:

A petition for review of the Administrator in

promulgating ... any other nationally applicable

regulations promulgated ... under [the Clean Air Act]

... may be filed only in United States Court of Appeals

for the District of Columbia.

42 U.S.C. §7607(b)(1).

The Administrator argues that the performance warranty

regulations promulgated by him in May 1980, 45 Fed. Reg.

34829 et seq., was a national regulation within the ambit of

307(b)(1). Cf. Lubrizol Corp. v. Train, 547 F.2d 310 (6th Cir.

1976). (The district court does not have jurisdiction under the

Administrative Procedure Act, 5 U.S.C. §702 (1970), and 28

U.S.C. §1331 to hear a challenge to regulations requiring the

registration of motor vehicle fiiels and fuel additives.)

The district court in the instant case found jurisdiction

pursuant to the Mandamus Act, 28 U.S.C. §1361; the

Declaratory Judgment Act, 28 U.S.C. §§2201 and 2202; the

Administrative Procedure Act, 5 U.S.C. §704 ef seq., and

federal matter jurisdiction pursuant to 28 U.S.C. §1331; and

the citizen suit provision of Section 304 of the Clean Air Act,

42 U.S.C. §7604. However, the district court did not address

the applicability of Section 307(b)(1) of the Clean Air Act.

Congress limited jurisdiction for review of national

regulations promulgated by the Administrator pursuant to the

Clean Air Act to the Court of Appeals for the District of

Columbia. The Association argues that the instant action is

not for review of the Administrator’s issuance of performance

warranty regulations. We hold that the action in the district

court was an attempt to review the agency’s issuance of

17a

performance warranty regulations, and that this case should

be transferred to the Court of Appeals for the District of

Columbia.

The Association’s argument in support of the district

court’s injunction has two parts, first that Section 304 of the

Clean Air Act* permits:

any person to commence a civil action ... against the

Administrator where there is alleged a failure of the

Administrator to perform any act or duty under... [the

Clean Air Act] which is not discretionary with the

Administrator. . . . District Courts shall have jurisdiction

... to order the Administrator to perform such act or

duty. (Emphasis added.)

Thus, the Association argues that Section 304 confers

jurisdiction upon the district court. The Association also

argues that once the district court has jurisdiction to order the

Administrator to perform a nondiscretionary duty (pursuant

to Section 304) the court must be allowed to fully effectuate

the rights of the Association by enjoining enforcement of the

performance warranty regulations. These arguments confuse

the issue. The district court reviewed the performance

warranty regulations when it decided that the _ parts

certification and maintenance regulations were necessary

preceding conditions for the issuance of the performance

warranty regulations. It is that review or any other review of

the regulation which is barred by Section 307(b)(1).

The district court can fully and completely grant relief

for the failure of the Administrator to issue mandatory

‘ Plaintiff's arguments are strongest about Section 304 of the

Clean Air Act. The other alleged grounds for jurisdiction found by

the district court suffer from the same disabilities which afflict the

claims of Section 304. Nothing in the Mandamus Act, Declaratory

Judgment Act or the federal issue jurisdiction gives the district

court the right to override the explicit grant of jurisdiction in

Section 307(b)(1). Thus, under none of these jurisdictional grounds

may the district court review the procedures used to issue the

performance warranty regulation.

18a

regulations pursuant to Section 207(a)(2) and Section 207(c)(3)

of the Clean Air Act by ordering the Administrator to issue

parts certification and maintenance instruction regulations. If

it is necessary to enjoin the enforcement of the performance

warranty regulations or to consider their viability, because the

performance warranty regulations are invalid without proper

parts certification and maintenance regulations, then such

actions must be brought pursuant to Section 307(b)(1) in the

Court of Appeals for the District of Columbia. This view

most appropriately effectuates the purpose of the Act.

Lubrizol Corp. v. Train, 547 F.2d 310 (6th Cir. 1976).

Accordingly, we hold the district court lacked jurisdiction

to enjoin enforcement of the performance warranty

regulations. The district court’s order enjoining enforcement

of the performance warranty regulation is vacated, and the

case is transferred to the United States Court of Appeals for

the District of Columbia. The mandate shall issue five days

after this order is filed with the Clerk of this Court.

ENTERED By ORDER OF THE

CouRT

Clerk

19a

ORDER OF THE UNITED STATES COURT OF AP-

PEALS FOR THE SIXTH CIRCUIT ISSUING ITS

MANDATE

UNITED STATES CouRT OF APPEALS FoR THE SIXTH CIRCUIT

Misc. No. 80-1591, 80-1604

Motor VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., a New York corporation; AMERICAN

Motors CORPORATION, a Maryland corporation; CHRYSLER

CORPORATION, FORD Motor CoMPANY and GENERAL

Motors CORPORATION, Delaware corporations; VOLKSWAGEN

Or AMERICA, INC., a New Jersey corporation; DETROIT

AUTOMOBILE DEALERS ASSOCIATION, INC., a Michigan cor-

poration, Ep BamLey, INc., a Michigan corporation, d/b/a

Ep Bailey AMC/JEEP; and MICHIGAN AUTOMOBILE DEALERS

ASSOCIATION, INC., a Michigan corporation, Plaintiff-

Appellees,

Vv.

Douc.ias M. CostLe, Administrator, UNITED STATES EN-

VIRONMENTAL PROTECTION AGENCY, Defendant-Appellant.

Order

BEFORE: MARTIN and JonEs, Circuit Judges, and PEck, Senior

Circuit Judge

The mandate shall issue on September 30, 1980.

It Is So ORDERED.

ENTERED By ORDER OF THE

COURT

Clerk

2la

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT DENYING

PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

Nos. 80-1591, 80-1604

Motor VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., a New York corporation; AMERICAN

Motors CORPORATION, a Maryland corporation; CHRYSLER

CORPORATION, FORD Motor COMPANY and GENERAL

Motors CoRPORATION, Delaware corporations; VOLKSWAGEN

OF AMERICA, INC., a New Jersey corporation; DETROIT

AUTOMOBILE DEALERS ASSOCIATION, INC., a Michigan

corporation; Ep BaILEy, INC., a Michigan corporation,

d/b/a Ep BatLEy AMC/JEEP; and MICHIGAN AUTOMOBILE

DEALERS ASSOCIATION, INC., a Michigan corporation,

Plaintiffs-Appellees,

Douc.Las M. CosTLeE, Administrator, United States

Environmental Protection Agency, Defendant-Appellant.

Order

BEFORE: MARTIN and JONES, Circuit Judges, and PEcK, Senior

Circuit Judge

The Court not having voted in favor of a rehearing en

banc, the petition for rehearing heretofore filed by the

Plaintiffs-appellees has been referred to the panel which heard

the appeal.

The Court concludes that the issues raised in the petition

for rehearing were fully considered upon the original

submission and decision of the appeal. The petition for

| PREVIOUS PAGE: WAS BLANK ANK |

+ ee ee cr rere men * <n ct mmenemmnamamt imaaatoy way

22a

rehearing is, therefore, denied. Appellee’s motions for recall

of the mandate and for oral argument are also denied.

It Is So ORDERED.

ENTERED By ORDER OF THE

COURT

Clerk

i *

23a

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT RETURNING THE CASE TO THE SIXTH

CIRCUIT

UNITED STATES COURT OF APPEALS

For THE District OF COLUMBIA CIRCUIT

September Term, 1980

No. 80-2467

Motor VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., ef al.,

Doucias M. CosTLE, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY, Appellant.

BEFORE ROBINSON, MACKINNON and WALD, Circuit Judges

Order

Two cases, Nos. 80-1591 and 80-1604, having been

transferred to this Court by the United States Court of

Appeals for the Sixth Circuit, and it appearing that each is an

appeal from a judgment of the United States District Court

for the Eastern District of Michigan, and this Court lacking

jurisdiction to consider an appea! from an action by any

district court other than the United States District Court for

the District of Columbia, see Preston Corp. v. Raese, 335

F.2d 827, 828 (4th Cir. 1964), it is

ORDERED by this Court that the record and certificate of

record in Sixth Circuit Nos. 80-1591 and 80-1604 be physically

transmitted and transferred to the Clerk of the United States

24a

Court of Appeals for the Sixth Circuit for appropriate

disposition by that Court.

Per Curiam

For the Court

Georce A. FISHER

George A. Fisher

Clerk

Circuit Judge Wap did not participate in the foregoing

order.

25a

LETTER FROM THE CLERK, UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT DIRECTING

APPELLANT TO FILE HIS BRIEF

Unitep Stares Court OF APPEALS

SIXTH CIRCUIT

U.S. Post Office & Courthouse Building

Cincinnati, Ohio 45202

January 7, 1981

Mr. Michael A. McCord

Land and Natural Resources Division

Appellate Section

U.S. Department of Justice

Washington, D.C, 20530

Re: Case No, 80-1591 — Motor Vehicle Manufacturers

Association of the United States et al., Plaintiffs-

Appellees, vs. Douglas M. Costle, Defendant-

Appellant, District Court No, 80-72618

Dear Mr. McCord:

Pursuant to the order from the U.S. Court of Appeals

for the District of Columbia Circuit the above-styled case has

been transferred to the Sixth Circuit Court of Appeals for

disposition. Accordingly, we have today filed the record and

have reopened the appeal as 80-1591 in this Court.

Twenty-five copies of your brief and ten copies of the

joint appendix are required to be filed within forty (40) days

from today. See Rules 31-32, FRAP, and Rule 12, Sixth

Circuit Rules. Two additional copies of your brief and one

copy of the appendix should be served on opposing counsel.

Proof of service in accordance with Rule 25(d), FRAP, should

accompany the submission of your briefs to this Court.

May we direct your attention to the enclosed outline

regarding the filing of documents in this Court and the

specific rules which regulate their preparation and submission.

’*

26a

The enclosed entry of appearance form should be

completed and returned to this office. Please include your

typed name, office address and phone number.

Very truly yours,

JcHN P,. HEHMAN, CLERK

Rutu M. KELLY

Deputy Clerk

27a

SECTION 207(a), (b) and (c) OF THE CLEAN AIR ACT,

42 USC 7451(a), (b) and (c).

Compliance By Vehicles And Engines In Actual Use

S.c. 207. (a)(1) Effective with respect to vehicles and

engines manufactured in model years beginning more than 60

days after the date of the enactment of the Clean Air

Amendments of 1970, the manufacturer of each new motor

vehicle and new motor vehicle engine shall warrant to the

ultimate purchaser and each subsequent purchaser that such

vehicle or engine is (A) designed, built, and equipped so as to

conform at the time of sale with applicable regulations under

section 202, and (B) free from defects in materials and

workmanship which cause such vehicle or engine to fail to

conform with applicable regulations for its useful life (as

determined under sec. 202 (d)).

(2) In the case of a motor vehicle part or motor vehicle

engine part, the manufacturer or rebuilder of such part may

certify that use of such part will not result in a failure of the

vehicle or engine to comply with emission standards

promulgated under section 202. Such certification shall be

made only under such regulations as may be promulgated by

the Administrator to carry out the purposes of subsection (b).

The Administrator shall promulgate such regulations no later

than two years following the date of the enactment of this

paragraph.

(3) The cost of any part, device, or component of any

light-duty vehicle that is designed for emission control and

which in the instructions issued pursuant to subsection (c) (3)

of this section is scheduled for replacement during the useful

life of the vehicle in order to maintain compliance with

reglations [sic] uvder section 202 of this Act, the failure of

which shall not interfere with the normal performance of the

vehicle, and the expected retail price of which, including

installation costs, is greater than 2 percent of the suggested

retail price of such vehicle, shall be borne or reimbursed at

the time of replacement by the vehicle manufacturer and such

28a

replacement shall be provided without cost to the ultimate

purchaser, subsequent purchaser, or dealer. The term

‘designed for emission control’’ as used in the preceding

sentence means a catalytic converter, thermal reactor, or other

component installed on or in a vehicle for the sole or primary

purpose of reducing vehicle emissions (not including those

vehicle components which were in general use prior to model

year 1968 and the primary function of which is not related to

emission control).

(b) If the Administrator determines that (i) there are

available testing methods and procedures to ascertain whether,

when in actual use throughout its useful life (as determined

under section 202 (d)), each vehicle and engine to which

regulations under section 202 apply complies with the

emission standards of such regulations, (ii) such methods and

procedures are in accordance with good engineering practices,

and (iii) such methods and procedures are reasonably capable

of being correlated with tests conducted under section 206 (a)

(1), then —

(1) he shall establish such methods and procedures by

regulation, and

(2) at such time as he determines that inspection

facilities or equipment are available for purposes of

carrying out testing methods and procedures established

under paragraph (1), he shall prescribe regulations which

shall require manufacturers to warrant the emission

control device or system of each new motor vehicle or

new motor vehicle engine to which a regulation under

section 202 applies and which is manufactured in a model

year beginning after the Administrator first prescribes

warranty regulations under this paragraph. The warranty

under such regulations shall run to the ultimate purchaser

and each subsequent purchaser and shall provide that if

(A) the vehicle or engine is maintained and

operated in accordance with instructions. under

subsection (c) (3),

29a

(B) it fails to conform at any time during its

useful life (as determined under section 202 (d))

to the regulations prescribed under section 202,

and

purchaser (or any subsequent purchaser) of such

vehicle or engine having to bear any penalty or

other sanction (including the denial of the right

to use such vehicle or engine) under State or

Federal law, .

then such manufacturer shall remedy such nonconformity

under such warranty with the cost thereof to be borne by

the manufacturer. No such warranty shall be invalid on

the basis of any part used in the maintenance or repair of

a vehicle or engine if such part was certified as provided

under subsection (a) (2). For purposes of the warranty

under this subsection, for the period after twenty-four

months or twenty-four thousand miles (whichever first

occurs) the term ‘‘emission control device or system”’

means a catalytic converter, thermal reactor, or other

component installed on or in a vehicle for the sole or

primary purpose of reducing vehicle emissions. Such

terms shall not include those vehicle components which

were in general use prior to model year 1968.

manufactured during model years beginning more than 60

days after the date of enactment of the Clean Air

Amendments of 1970 —

(1) If the Administrator determines that a substantial

number of any class or category of vehicles or engines,

although properly maintained and used, do not conform

to the regulations prescribed under section 202, when in

actual use throughout their useful life (as determined

under section 202 (d)), he shall immediately notify the

manufacturer thereof of such nonconformity, and he

shall require the manufacturer to submit a plan for

30a

remedying the nonconformity of the vehicles or engines

with respect to which such notification is given. The plan

shall provide that the nonconformity of any such vehicles

or engines which are properly used and maintained will

be remedied at the expense of the manufacturer. If the

manufacturer disagrees with such determination of

nonconformity and so advises the Administrator, the

Administrator shall afford the manufacturer and other

interested persons an opportunity to present their views

and evidence in support thereof at a public hearing.

Unless, as a result of such hearing the Administrator

withdraws such determination of nonconformity, he

shall, within 60 days after the completion of such

hearing, order the manufacturer to provide prompt

notification of such nonconformity in accordance with

paragraph (2).

(2) Any notification required by paragraph (1) with

respect to any class or category of vehicles or engines

shall be given to dealers, ultimate purchasers, and

subsequent purchasers (if known) in such manner and

containing such information as the Administrator may be

[sic] regulations require.

(3)(A) The manufacturer shall furnish with each new

motor vehicle or motor vehicle engine written instructions for

the proper maintenance and use of the vehicle or engine by

the ultimate purchaser and such instructions shall correspond

to regulations which the Administrator shall promulgate. The

manufacturer shall provide in boldface type on the first page

of the written maintenance instructions notice that

maintenance, replacement, or repair of the emission control

devices and systems may be performed by any automotive

repair establishment or individual using any automotive part

which has been certified as provided in subsection (a) (2).

(B) The instruction under subparagraph (A) of this

paragraph shall not include any condition on the ultimate

purchaser’s using, in connection with such vehicle or engine,

’*%

3la

any component or service (other than a component or service

provided without charge under the terms of the purchase

agreement) which is identified by brand, trade, or corporate

name; or directly or indirectly distinguishing between service

performed by the franchised dealers of such manufacturer or

any other service establishments with which such

manufacturer has a commercial relationship, and service

performed by independent automotive repair facilities with

which such manufacturer has no commercial realtionship;

except that the prohibition of this subsection may be waived

by the Administrator if —

(i) the manufacturer satisfies the Administrator that the

vehicle or engine will function properly only if the

component or service so identified is used in connection

with such vehicle or engine, and

(ii) the Administrator finds that such a waiver is in the

public interest.

of a label or tag permanently affixed to such vehicle or engine

that such vehicle or engine is covered by a certificate of

conformity issued for the purpose of assuring achievement of

emissions standards prescribed under section 202 of this Act.

Such label or tag shall contain such other information relating

to control of motor vehicle emissions as the Administrator

shall prescribe by regulation.

33a

SECTION 304 OF THE CLEAN AIR ACT, 42 USC 7604

Citizen Suits

Sec. 304. (a) Except as provided in subsection (b), any

person may commence a civil action on his own behalf —

(1) against any person (including (i) the United States,

and (ii) any other governmental instrumentality or agency

to the extent permitted by the Eleventh Amendment to

the Constitution) who is alleged to be in violation of (A)

an emission standard or limitation under this Act or (B)

an order issued by the Administrator or a State with

respect to such a standard or limitation,

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this Act which is not discretionary with the

Administrator, or

(3) against any person who proposes to construct or

constructs any new or modified major emitting facility

without a permit required under part C of title I (relating

to significant deterioration of air quality) or part D of

title I (relating to nonattainment) or who is alleged to be

in violation of any condition of such permit.

The district courts shall have jurisdistion, without regard to

the amount in controversy or the citizenship of the parties, to

enforce such an emission standard or limitation, or such an

order, or to order the Administrator to perform such act or

duty, as the case may be.

(b) No action may be commenced —

(1) under subsection (a) (1) —

(A) prior to 60 days after the plaintiff has given

notice of the violation (i) to the Administrator, (ii) to

the State in which the violation occurs, and (iii) to

any alleged violator of the standard, limitation, or

order, or

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34a

(B) if the Administrator or State has commenced

and is diligently prosecuting a civil action in a court

of the United States or a State to require compliance

with the standard, limitation, or order, but in any

such action in a court of the United States any

person may intervene as a matter of right.

(2) under subsection (a) (2) prior to 60 days after the

plaintiff has given notice of such action to the

Administrator,

except that such action may be brought immediately after

such notification in the case of an action under this section

respecting a violation of section 112(c) (1) (B) or an order

issued by the Administrator pursuant to section 113(a). Notice

under this subsection shall be given in such manner as the

Administrator shall prescribe by regulation.

source of an emission standard or limitation or an order

respecting such standard or limitation may be brought only in

the judicial district in which such source is located.

(2) In such action under this section, the Administrator,

if not a party, may intervene as a matter of right.

(d) The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section, may award

costs of litigation (including reasonable attorney and expert

witness fees) to any party, whenever the court determines such

award is appropriate. The court may, if a temporary

restraining order or preliminary injunction is sought, require

the filing of a bond or equivalent security in accordance with

the Federal Rules of Civil Procedure.

(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 emission standard

or limitation or to seek any other relief (including relief

against the Administrator or a State agency).. Nothing in this

section or in any other law of the United States shall be

35a

construed to prohibit, exclude, or restrict any State, local, or

interstate authority from —

(1) bringing any enforcement action or obtaining any

judicial remedy or sanction in any State or [sic] local

court, or

(2) bringing any administrative enforcement action or

obtaining any administrative remedy or sanction in any

State or local administrative agency, department or

instrumentality,

against the United States, any department, agency, or

instrumentality thereof, or any officer, agent, or employee

thereof under State or local law respecting control and

abatement of air pollution. For provisions requiring

compliance by the United States, departments, agencies,

instrumentalities, officers, agents, and employees in the same

manner as nongovernmental entities, see section 118.

(f) For purposes of this section, the term ‘‘emission

standard or limitation under this Act’’ means —

(1) a schedule or timetable of compliance, emission

limitation, standard of performance or _ emission

standard,

(2) a control or prohibition respecting a motor vehicle

fuel or fuel additive, which is in effect under this Act

(including a requirement applicable by reason of section

118) or under an applicable implementation plan, or

(3) any condition or requirement of a permit under

part C of title I (relating to significant deterioration of

air quality) or part D of title I (relating to

nonattainment), any condition or requirement of section

113(d) (relating to certain enforcement orders), section

119 (relating to primary nonferrous smelter orders), any

condition or requirement under an_ applicable

implementation plan relating to transportation control

measures, air quality maintenance plans, vehicle

inspection and maintenance programs or vapor recovery

36a

requirements, section 211 (e) and (f) (relating to fuels and

fuel. additives), section 169A (relating to visibility

protection), any condition or requirement under part B of

title I (relating to ozone protection), or any requirement

under section 111 or 112 (without regard to whether such

requirement is expressed as an emission standard or

otherwise).

37a

SECTION 307(b) OF THE CLEAN AIR ACT, 42 USC

7607(b)

General Provisions Relating To Administrative Proceedings

And Judicial Review

Sec. 307.

(b)(1) A_ petition for review of action of the

Administrator in promulgating any national primary or

secondary ambient air quality standard, any emission standard

or requirement under section 112, any _ standard of

performance or requirement under section 111,'° any standard

under section 202 (other than a standard required to be

prescribed under section 202(b) (1)), any determination under

section 202(b)(5), any control or prohibition under section

211, any standard under section 231, any rule issued under

section 113, 119, or under section 120, or any other nationally

applicable regulations promulgated, or final action taken, by

the Administrator under this Act may be filed only in the

United States Court of Appeals for the District of Columbia.

A petition for review of the Administrator’s action in

approving or promulgating any implementation plan under

section 110 or section 111(d), any order under section 111(j),

under section 112(c), under section 113(d), under section 119,

or under section 120, or his action under section 119 (c)(2)

(A), (B), or (C) (as in effect before the date of enactment of

the Clean Air Act Amendments of 1977) or under regulations

thereunder, or any other final action of the Administrator

under this Act (including any denial or disapproval by the

Administrator under title I) which is local or regionally

applicable may be filed only in the United States Court of

Appeals for the appropriate circuit. Notwithstanding the

preceding sentence a petition for review of any action referred

to in such sentence may be filed only in the United States

Court of Appeals for the District of Columbia if such action

is based on a determination of nationwide scope or effect and

if in taking such action the Administrator finds and publishes

that such action is based on such a determination. Any

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38a

petition for review under this subsection shall be filed within

sixty days from the date notice of such promulgation,

approval, or action appears in the Federal Register, except

that if such petition is based solely on grounds arising after

such sixtieth day, then any petition for review under this

subsection shall be filed within sixty days after such grounds

arise.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall not

be subject to judicial review in civil or criminal proceedings

for enforcement.

39a

NOTICE OF STATUS OF MAINTENANCE REGULA-

TIONS, 45 FED. REG. 44117 (JUNE 30, 1980)

Allowable Maintenance for Light Duty Vehicles (SAN No

1597)

A Description The Clear Air Act requires that automobile

manufacturers furnish to the purchaser written instruc-

tions for pcoper use and maintenance of new motor

vehicles and engines. This regulation will determine the

content of those instructions on the basis of maintenance

which is likely to be performed and which is necessary.

The Agency has temporarily postponed the schedule for

completion of this regulation.

B Classification Routine

C Statutory Authority CAA 207(c)(3). 42 USC 7541(c)(3)

D CFR Change 40 CFR 86

Merill Korth

EPA

Ann Arbor, MI 48105

FTS 8-374-8299

Comm 313-668-4208

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.