Opposition Brief — Acierno v. Skinner

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No. 91-125 SEP 23

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OFFICE CF THE CLERK

Gn the Supreme Court of the United States

OCTOBER TERM, 1991

FRANK ACIERNO, PETITIONER =

Vv,

SAMUEL K. SKINNER,

SECRETARY OF TRANSPORTATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MEMORANDUM FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

202) 514-2217

TABLE OF CONTENTS

Page

NR NR EIRENE ES RE ERIE 5 Se Ree An ROE la

FARR 3 eR RE ceebdeenetdlandeis akties 5a

Appendix C ......... Pe area se ites nahivinleaeseadamnchecaeetiecsones 7a

Appendix D ............... Bios s eeedegapeah waassauseenessaeabneubncanaceoeccwbaes 8a

I ins 217s ace ccatens ca degee cata uaneeenetsedaceas peepee osdacbonneds 9a

TABLE OF AUTHORITIES

Cases:

Citizens to Preserve Overton Park, Inc. Vv. Volpe,

401 U.S. 402 (1971) .............. eas 6

Tuley Vv. Heyd, 482 F.2d 590 (5th Cir. 1973) Cones 7

Constitution, statutes and rules:

U.S. Const. Amend. V ; 2

Federal-Aid Highway Act of 1966, 23 U. Ss. C. 138 . 2,5,6

National Environmental Policy Act of 1969, 42

U.S.C. 4331 (C) Ra Bt to. SRE co 2,5

Uniform Relocation Assistance and Real Property

Acquisition Policies Act of 1970, 42 U.S.C.

I. SEES SRA tae kn a SOAR he nO ot PR ca 2.6

PRESERVE PIT AICI tee COTE 3

A I og eteas ee ania dome 2,5

Fed. R. Civ. P.:

Rule 12(b) (6) _..... Ure Ate ee ee he: 5, 6

IUD. <cxnencccoucasastedsiLevasits slabgidassetddeal 4

Iu the Suprene Court of the United States

OCTOBER TERM, 1991

No. 91-125

FRANK ACIERNO, PETITIONER

Vv. -

SAMUEL K. SKINNER,

SECRETARY OF TRANSPORTATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MEMORANDUM FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

The petition for a writ of certiorari seeks review

of an order of the United States Court of Appeals for

the Third Circuit (Pet. App. A3-A4) summarily af-

firming the district court’s dismissal of this action.

Petitioner contends that the district court erred in

(1) dismissing two counts of his complaint on grounds

of laches and (2) restricting the scope of discovery.

The district court fully set forth the factual and

legal considerations relevant to its laches determina-

tion and decided the issue correctly. Pet. App. A12-

Ai9. We rely on the court’s explication of that

holding.

With respect to petitioner’s contentions (Pet. 10-

12) regarding discovery, the district court rulings

(1)

2

that petitioner challenges are not reproduced in the

appendix to the petition; nor are they adequately de-

scribed in the petition. We therefore have reproduced

the pertinent rulings in the appendices hereto.

Petitioner contends (Pet. 11) that the district court

improperly granted summary judgment “on the mer-

its” of his complaint without affording him sufficient

opportunity to conduct discovery on the merits. That

contention is incorrect. The court dismissed the com-

plaint based on issues that were fully briefed and

argued following adequate opportunity for discovery.

1. Petitioner filed this suit in March 1990 to chal-

lenge a federally funded highway project in Delaware,

part of which took a portion of petitioner’s land.

Petitioner’s complaint, filed in the United States Dis-

trict Court for the District of Delaware, alleged that

the state or federal respondents, or both, had violated

the Federal-Aid Highway Act of 1966, 23 U.S.C. 138

(Count 1) [hereinafter, the “Section 4(f) claim’’];

the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4331(C) (Count 2); the Uni-

form Relocation Assistance and Real Property Acqui-

sition Policies Act of 1970, 42 U.S.C. 4651 (Count 3) ;

petitioner’s rights under the Fifth Amendment and

under 42 U.S.C. 1881 (Count 4); and various state

environmental statutes (Count 5). Reproduced Rec-

ord (R.R.) 163a-179a.

In May 1990, the federal and state respondents

filed dispositive motions. The federal respondents

moved for summary judgment in their favor on the

ground that petitioner’s entire suit was barred by

laches. R.R. 247a. As to Count 1, the Section 4(f)

claim, they sought summary judgment on the addi-

tional ground that the undisputed facts established

compliance with Section 4(f). The federal respond-

3

ents also moved to dismiss Counts 3 through 5, among

other reasons, for failure to state a claim and lack of

subject matter jurisdiction. R.R. 249a-250a. The

state respondents likewise moved for summary judg-

ment based on laches and on count-specifie grounds.

District Court Clerk’s Record (C.R.) 39-40.

Judge James Latchum, the district court judge

initially assigned to this case, issued a scheduling

order in conjunction with the filing of respondents’

motions. Judge Latchum’s order set a date for argu-

ment on the motions and authorized “discovery re-

lated to the motions to be argued.” R.R. 226a.

Shortly thereafter, petitioner filed a motion for

recusal of Judge Latchum. On May 21, 1990, Judge

Latchum issued an order and opinion recusing him-

self pursuant to 28 U.S.C. 455(a). C.R. 36; App.,

infra, la-6a. In a memorandum to Chief Judge

Joseph Longobardi, Judge Latchum noted that peti-

tioner had also requested that the case be assigned

to a judge from outside the district, a request over

whieh Judge Latchum had no authority. App., infra,

7a. The case was reassigned to Chief Judge Longo-

bardi. C.R. 37; App., infra, 8a.

2. At a status conference on May 29, 1990, Chief

Judge Longobardi denied petitioner’s request that the

case be referred to the Chief Judge of the Court of

Appeals for reassignment to a judge from outside

the district. R.R. 406a-409a. Petitioner made no

further effort to have the case heard by a different

judge. Judge Longobardi also adopted Judge Latch-

um’s prior order permitting discovery only on the

issues raised in respondents’ pending motions. R.R.

434a-436a; App., infra, 10a-12a. In response to peti-

tioner’s claim that-the prior order was unduly re-

strictive, Judge Longobardi made clear that he would

4

consider that claim “very closely” if it were submitted

in writing and supported by affidavit, as provided in

Fed. R. Civ. P. 56. R.R. 434a; App., infra, 10a.

Petitioner did not pursue the court’s invitation to

file a written request for modification of the discov-

ery order.

At a hearing on petitioner’s application for a tem-

porary restraining order in June 1990, Judge Longo-

bardi reiterated his willingness to allow petitioner

adequate discovery to respond to the pending motions

and to enlarge Judge Latchum’s prior order if peti-

tioner requested it:

With regard to the scope of discovery, discovery

is limited to dealing with the issues raised by

the parties. Obviously, briefing on the issue is

designed to bring to the Court all of the infor-

mation available by the plaintiffs [sic] which

might be pertinent in response to the defendants’

motions. Discovery after that time would serve

no useful purpose either to the Court or to the

plaintiffs.

Under these circumstances, the discovery will

be cut off sometime prior to the filing of the brief

on June 11.

However, upon request of the plaintiffs, the

Court would give them additional time to con-

duct discovery and thereby move the oral argu- -

ment date from June 20 to some later time.

C.R. 52, at 14; Supp. R.R. 32 (emphasis added) ;

App., infra, 15a. Subsequent to that ruling, Juage

Longobardi again declared that he would have will-

ingly expanded discovery if petitioner had asked.

Pet. App. A28 (the court “was perfectly willing to

allow [petitioner] additional] time in which to conduct

discovery on all of the issues raised in [ respondents’ ]

motions” ).

5

In light of the proceedings below, petitioner’s pres-

ent contention (Pet. 11) that he was denied adequate

discovery is unpersuasive. Petitioner was given re-

peated opportunities to expand the scope of the origi-

nal discovery order, but he failed to avail himself of

those opportunities.

3. Petitioner errs in asserting (Pet. 11) that the

court’s ruling on respondents’ motions “expanded

* * * beyond the limited scope of discovery and is-

sues * * * established [by the court].” As discussed

above, the discovery order expressly permitted dis-

covery on all issues raised in the motions. Further-

more, the decision dismissing petitioner’s complaint

was based solely on the grounds set forth in the

motions.

The court granted summary judgment on Counts 1

and 2—the Section 4(f) and NEPA claims—on

grounds of laches. Pet. App. A12-A19, A30. As an

alternative basis for granting summary judgment on

Count 1, the court ruled in favor of respondents on

the merits. Jd. at A19-A25. In dismissing Count 3,

the claim based on the Uniform Relocation Assistance

and Real Property Acquisition Policies Act, the court

agreed with respondents’ argument that the statute

does not create a private cause of action. Jd. at A25-

A26. The court likewise adopted respondents’ posi-

tion in holding that Count 4—alleging violations of

due process and equal protection by the federal re-

spondents and a violation of 42 U.S.C. 1981 by the

state respondents—failed to state a claim against any

of the respondents and therefore had to be dismissed

under Fed. R. Civ. P. 12(b) (6). Pet. App. A26-28,

A32-A35. Having dismissed all of the federal claims,

the court declined to exercise pendent jurisdiction

over, and accordingly dismissed, the state-law claims

in Count 5. Jd. at A29.

6

Thus, contrary to petitioner’s assertion (Pet. 11),

the court did not adopt an “expanded theory” in dis-

missing the complaint. Nor were “all of petitioner’s

environmental claims” dismissed ‘“‘on the merits,” as

petitioner asserts (ibid.). The court addressed the

merits only as an alternative basis for dismissing pe-

titioner’s Section 4(f) claim in Count 1. That deter-

mination did not “expand” the issues previously

framed in the case, since the federal respondents had

sought summary judgment on the merits of Count 1.

See C.R. 38, at 16-19. In any event, the court prop-

erly based its review of the Section 4(f) claim on

the administrative record, which was made part of

the record in the district court. See Citizens to Pre-

serve Overton Park, Inc. v. Volpe, 402 U.S. 401, 420

(1971).

4. Finally, there is no merit to petitioner’s asser-

tion (Pet. 11-12) that the court improperly “ ‘con-

ver[ted]’ * * * respondent’s motions under Fed. R.

Civ. P. Rule 12(b)(6) into motions for summary

judgment.” Notwithstanding the breadth of that as-

sertion, the court treated respondents’ Rule 12(b) (6)

motions as motions for summary judgment in only

one instance. The Court granted summary judgment

in favor of the federal respondents on Count 4 (al- —

leging constitutional violations) as an alternative

disposition to its primary holding that Count 4 failed

to state a clairm. Pet. App. A34-A35. That alterna-

tive disposition was entirely proper. Petitioner pre-

sented no evidence or allegations to support his claim

under Count 4, and he failed to rebut in any way an

affidavit (C.R. 38, Exh. 3; Supp. R.R. 9-11) sub-

mitted by the federal respondents on the issue. Be-

cause respondents’ Rule 12(b) (6) motion thus pre-

sented ‘‘matters outside the pleading” with respect

7

to Count 4, it was proper for the court to treat the

motion as it did. See, ¢.g., Tuley v. Heyd, 482 F.2d

590, 592-593 (5th Cir. 1973).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

SEPTEMBER 1991

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

Civil Action No. 90-150-JLL

FRANK E. ACIERNO, individually

and as Trustee ad litem for

Residents and Tenants, PLAINTIFF

Uv.

SAMUEL SKINNER, individually and in his capacity as

Secretary, U.S. Department of Transportation,

JOHN DAVIS, individually, and in his capacity as

Director of the Highway Division, Delaware De-

partment of Transportation; MANUEL MARKS, in-

dividually and in his capacity as Division Admin-

istrator, Federal Highway Administration; THOMAS

D. LARSON, individually and in his capacity as Fed-

eral Highway Administrator; RONALD C. CAR-

MICHAEL, individually and as delegee, Federal

Highway Administrator, DEFENDANTS

and

ALBERT H. MARTA, DEFENDANT-INTERVENOR

MEMORANDUM OPINION

Wilmington, Delaware

May 21, 1990.

(la)

2a

LATCHUM, Senior District Judge.

This action is a broad based challenge to the com-

pletion of construction of relocated Delaware Route 7

connecting Route 13 to I-95. The planning and steps

taken toward the three-phase construction of the new

highway had its beginnings at least as early as 1985.

Some portions of the highway have been completed.

Plaintiff’s complaint, which seeks to enjoin construc-

tion of a portion of Route 7, was filed on March 29,

1990. (Docket Item [“D.I.’] 1.) At the same time

plaintiff moved for a temporary restraining order

(“TRO”). (D.I. 4.) Because the undersigned was

acting as “Duty Judge” for this Court during the

week of March 26, 1990, the case was assigned to

that judge. Local Rule 2.2(C)(1). On the repre-

sentation of plaintiff’s attorneys that all other parties

had been notified, the undersigned judge held a TRO

hearing on March 29, 1990, and denied that motion.

(See D.I. 8.) Before the time for defendants to ap-

pear and file answers, plaintiff again moved for a

preliminary injunction and leave to take depositions.

(D.I. 13 & 14.) Because of the need to expedite these

proceedings and to resolve promptly obvious problems

with the then posture of the pleadings, the Court on

April 19, 1990, scheduled a Rule 16 Scheduling con-

ference for May 7, 1990. (D.I. 16.)

As a resuit of discussions and comments of counsel

at that conference, the Court entered a Preliminary

Rule 16 Scheduling Order on May 7, 1990. (D.I. 21.)

That order, in substance, (a) permitted the interven-

tion of Albert H. Marta as a defendant; (b) set an

expedited schedule for defendants to file answers,

motions and an administrative record; (c) established

a briefing schedule on all motions; and (d) set oral

3a

argument thereon at 10:00 a.m., June 20, 1990.

(Id.).

On May 17, 1990, plaintiff filed a motion to recuse

the undersigned judge from presiding over any fur-

ther proceedings in this case on the grounds that: (1)

the undersigned judge had previously represented the

Delaware State Highway Department before his ap-

pointment to the bench; (2) that the undersigned

judge, before assuming the bench, had advocated, in

other matters on behalf of the Delaware Highway

Department, the same position as defendants advocate

here; and (3) that the undersigned judge because of

his earlier representation of the Delaware Highway

Department and his relationship to counsel has a per-

sonal bias of the present matter because he did not

reveal that he had once represented the Delaware

Highway Department before the scheduling confer-

ence. (D.I. 34 & Ex. at 22-23.)

It is correct that the undersigned judge was ap-

pointed attorney for the Delaware Highway Depart-

ment for New Castle County in 1948 and served as

such until 1950. He also served as attorney for the

Delaware Interstate Highway Division from August

17, 1955 to February 6, 1963, and as attorney for the

Delaware River and Bay Authority from February 6,

1963 to August 21, 1968. All of this is public infor-

mation, which appears and has appeared for many

years in biographical sketches of the undersigned

judge.»

However, this judge has no recollection that he has

ever met defendant John Davis or ever had any deal-

ings with him in any capacity or any other defendant

1 See, e.g., Who’s Who in America; Who’s Who in the East;

Almanac of the Federal Judiciary; Judicial Staff Directory;

Who’s Who in American Law; Judges of the United States.

4a

named in this action. Furthermore, the Court has

never, prior to this suit, met or had any dealings with

the plaintiff in this action.

Of course, this judge personally knows plaintiff’s

and defendants’ attorneys because all of them have

appeared before him as a judge in other matters.

This judge has no recollection of retaining Aubrey B.

Lank, Esq., as a special counsel before assuming the

bench in any matter involving the Delaware State

Highway Department, and has no recollection of ad-

vocating on behalf of the Delaware Highway Depart-

ment the same defense as defendants are advocating

here. All of this, if it ever occurred, was more than

twenty-one years ago. But be that as it may, the

present motion to recuse under 28 U.S.C. § 455(a)

requires a judge to voluntarily disqualify himself ‘in

any proceeding in which his impartiality might rea-

sonably be questioned.”

Most authorities which have considered the issue

have held that even if no bias or prejudice of a judge

may actually exist, it is enough to disqualify him if

there be the mere appearance of some partiality.

Limeco, Ine. v. The Division of Lime, 571 F.Supp. 710,

711 (N.D.Miss. 1983). Thus, to say that one has no

recollection of any bias, and subjectively believes there

is none, does not justify refusing voluntary disquali-

fication. Accordingly, to eliminate any possible ques-

tion of the appearance of partiality, the plaintiff’s mo-

tion to recuse will be granted.

The undersigned stands recused and will request

that this case be assigned to another judge who will

be required, depending on the new judge’s court sched-

ule, to either go forward with, or reset the date for,

oral argument on the motions now being briefed.

An Order in conformance with this Memorandum

Opinion will be entered.

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

~ FOR THE DISTRICT OF DELAWARE

Civil Action No. 90-150-JLL

FRANK KE. ACIERNO, individually

and as Trustee ad litem for

Residents and Tenants, PLAINTIFF

VU.

SAMUEL SKINNER, individually and in his capacity as

Secretary, U.S. Department of Transportation,

JOHN DAVIS, individually, and in his capacity as

Director of the Highway Division, Delaware De-

partment of Transportation; MANUEL MARKS, in-

dividually and in his capacity as Division Admin-

istrator, Federal Highway Administration; THOMAS

D. LARSON, individually and in his capacity as Fed-

eral Highway Administrator; RONALD C. CAR-

MICHAEL, individually and as delegee, Federal

Highway Administrator, DEFENDANTS

and

ALBERT H. MARTA, DEFENDANT-INTERVENOR

ORDER

For the reasons stated in the Court’s Memorandum

Opinion entered in this case on this date, it is

6a

ORDERED that plaintiff’s recusal motion is hereby

granted and the undersigned stands recused and will

request this case be assigned to another judge.

Dated: May 21, 1990.

/s/ James L. Latchum

United States District Judge

Ta

APPENDIX C

MEMORANDUM DATE: May 21, 1990

TO: Chief Judge Longobardi

FROM: Judge Latchum

RE: Acierno v. Skinner et al., C.A. No. 90-150-JLL

I enclose a Memorandum Opinion and Order entered

today in the above case in which, upon plaintiff’s mo-

tion, I have recused myself from further proceedings

in this matter. Therefore, I request that the case be

assigned to another judge.

I point out that plaintiff’s recusal motion also re-

quests the assignment of another judge from outside

this district—a request over which I have no author-

ity.

In addition, I call your attention to the fact that

this case is moving on an expedited track at plaintiff’s

urging. The parties are in the midst of briefing sev-

eral outstanding motions including plaintiff’s motion

for a preliminary injunction. There is an outstand-

ing Rule 16 Scheduling Order setting oral argument

on all motions to be heard on June 20, 1990, at 10 a.m.

When the case is assigned to a new judge, a deter-

mination will have to be made by the new judge

whether the scheduled oral argument shall proceed on

that date and that, of course, will depend on the new

judge’s existing calendar schedule.

md.

ec: Stephen B. Potter, Esq.

Kent A. Jordan, Esq.

Frederick H. Schranck, Esq.

Stephen E. Herrmann, Esq.

J. R. McAllister, Jr., Clerk

8a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

Civil Action No. 90-150 LON*

FRANK E. ACIERNO

V.

SAMUEL SKINNER

JOHN DAVIS

MANUEL MARKS

THOMAS D. LARSON

RONALD C. CARMICHAEL

NOTICE OF REASSIGNMENT OF JUDGE

Please note that the above case has been reassigned

from Judge Latchum to Judge Longobardi.

/s/ J.R. McAllister, Jr.

Clerk

Date: May 25, 1990

To: The Honorable Joseph J. Eongobardi

The Honorable James L. Latchum

Stephen B. Potter, Esq.

Kent A. Jordan, Esq.

Frederick H. Schranck, Esq.

E. Norman Veasey, Esq.

Statistical clerk

* When filing papers, please include the initials of the

Judge assigned to the case.

9a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF DELAWARE

Civil Action No. 90-150 (JLL)

FRANK E. ACIERNO, Individually and as Trustee

ad litem for Residents and Tenants, PLAINTIFF

Vv.

SAMUEL SKINNER, Individually and in his capacity as

Secretary, U.S. Department of Transportation;

JOHN Davis, Individually and in his capacity as

Director of the Highway Division, Delaware De-

partment of Transportation; MANUEL MARKS, In-

dividually and in his capacity as Division Adminis-

trator, Federal Highway Administration; THOMAS

D. LARSON, Individually and in his capacity as Fed-

eral Highway Administrator; RONALD C. CAR-

MICHAEL, Individually and as Delegee, Federal

Highway Administrator, DEFENDANTS

Wilmington, Delaware

Tuesday, May 29, 1990

2:15 o’clock, p.m.

Before: HONORABLE JOSEPH J. LONGOBARDI, Chief

Judge

10a

Appearances:

POTTER, SPILLER, CROSSE & LEONARD

By: STEPHEN B. POTTER, Esq.

-and-

SUGARMAN & ASSOCIATES,

By: ROBERT J. SUGARMAN, Esa.

(Philadelphia, Pennsylvania)

Counsel for Plaintiff

FREDERICK H. SCHRANCK, Esq.

Delaware Department of Transportation

Counsel for Defendant Davis

KENT A. JORDAN, Esq.,

Assistant United States Attorney

Counsel for Federal Defendants

Also Present:

RICHARDS, LAYTON & FINGER

By: STEPHEN E. HERRMANN, Esq.

For Intervenor/Defendant Albert Marta

* * * * *

[40] I want to deal now with the business about

discovery.

You are under the impression that you were limited

in your discovery. Apparently the order doesn’t do

that.

MR. SUGARMAN: The discovery limits me to

the laches issue and to the other defendant motions to

be argued on June the 20th. I specifically asked Judge

Latchum to permit me to have discovery with regard

to the merits, and he specifically refused it.

THE COURT: Do you want some discovery on

the laches and other motions?

lla

MR.SUGARMAN: Yes, your Honor.

THE COURT: Certainly there is a motion for

[41] summary judgment. If you make a representa-

tion to me that you need discovery to counter that mo-

tion, I think I would be obliged to look at it very

closely.

MR. SUGARMAN: Your Honor, I would like to

again call to the Court’s attention that the defense

of laches is to be weighed among all of the merits of

the case.

THE COURT: TIunderstand that.

MR. SUGARMAN: It can’t be decided as a single

issue.

THE COURT: Iam not going to decide that in

this case now today. I am not going to decide that.

MR. SUGARMAN: My only point as to discovery,

in order for the laches issue to be disposed of prop-

erly, the entire merits of the case have to be heard

because laches cannot be disposed of in isolation from

the merits of the case.

In order for the merits of the case to be disposed

of, I have to have discovery on the merits of the case.

Therefore, since the presumption that Judge Latchum

started with is wrong, namely that laches can be dis-

posed of independently of the other issues in the case,

it is inappropriate to deny discovery on all of the

other issues in the case in order to resolve the laches

issue.

Therefore, I do renew my request which I made to

Judge Latchum for discovery on the merits.

[42] MR. HERRMANN: Your Honor, two points.

One, to the extent the response is due June the 11th,

there is appropriate Rule 56 affidavits. With regard

to the necessity for more discovery, to the extent it

hasn’t already been allowed, and then I’m sure your

Honor would consider that.

12a

The other point, really, your Honor, is that counsel

is just wrong. There are numerous cases which we

cite endlessly in our brief where the courts have ruled

on the issue of laches as a preliminary matter. That’s

exactly what all our briefs have relied on.

THE COURT: When you talk about laches, you’re

really talking about one very narrow issue, as I recall,

and that is prior knowledge?

MR. JORDAN: And undue prejudice.

THE COURT: Undue prejudice?

MR. JORDAN: Yes, your Honor.

THE COURT: With regard to those two issues, I

would allow discovery, assuming that appropriate

Rule 56 affidavit is filed. I see no reason to go beyond

that, if that’s the narrow scope of your laches issue.

MR. SUGARMAN: If I understand your Honor’s

ruling, and maybe your Honor didn’t intend it, your

Honor is narrowing the discovery that Judge Latchum

allowed. He allowed us discovery on the laches issue

without filing an [43] affidavit under Rule 56(e).

MR. HERRMANN: The only reason I mentioned

the Rule 56(e) affidavit, your Honor, is only to the ex-

tent that Mr. Sugarman somehow wishes to present

further in his brief the necessity for merits discovery

in order to resolve what we think is a limited issue.

THE COURT: If he wants to have discovery with

regard to the summary judgment motion, I will allow

it. He has got to follow the rules like everybody else

does.

And the discovery is limited to the very narrow

scope of your laches issue, those two items that you

just described. And the decision will be made on those

two very narrow issues and nothing else, because I

am limiting his discovery.

* * * * *

13a

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF DELAWARE

Civil Action No. 90-150 LON

FRANK E. ACIERNO, INDIVIDUALLY AND AS TRUSTEE

AD LITEM FOR RESIDENTS AND TENANTS, PLAINTIFF

VU.

SAMUEL SKINNER, Individually and in his capacity as

Secretary, U.S. Department of Transportation;

JOHN Davis, Individually and in his capacity as

Director of the Highway Division, Delaware De-

partment of Transportation; MANUEL MARKS, In-

dividually and in his capacity as Division Adminis-

trator, Federal Highway Administration; THOMAS

D. LARSON, Individually and in his capacity as Fed-

eral Highway Administrator; RONALD C.- CAR-

MICHAEL, Individually and as Delegee, Federal

Highway Administrator, DEFENDANTS

Wilmington, Delaware

Monday, June 4, 1990

10:30 o’clock a.m.

Before: HONORABLE JOSEPH J. LONGOBARDI, Chief

Judge

l4a

[2] Appearances:

STEPHEN B. POTTER, EsqQ., and

PAUL PTAK, Esq.

Potter, Spiller, Crosse & Leonard

-and-

ROBERT J. SUGARMAN, EsQ., and

JAMES NEILL, Esq.

(Philadelphia, PA)

Counsel for Plaintiff

KENT A. JORDAN, ESQ.

Assistant United States Attorney

-and-

JAMES SCOUTEN, ESQ.

Office of Regional Counsel

Federal Highway Administration

(Baltimore, MD)

Counsel for Federal Defendants

FREDERICK H. SCHRANCK, ESQ.

Delaware Department of Transportation

Counsel for State Defendants

STEPHEN E. HERRMANN, ESQ.

Richards, Layton & Finger

Counsel for Defendant-Intervenor

* * * * .

[14] THE COURT: Okay. With regard to any

misunderstanding about what is going to happen on

June 20th, there will be an oral argument on the mo-

tions by the defendants. It will not be a hearing. It

will be oral argument.

15a

With regard to the scope of discovery, discovery is

limited to dealing with the issues raised by the parties.

Obviously, briefing on the issue is designed to bring to

the Court all of the information available by the plain-

tiffs which might be pertinent in response to the de-

fendants’ motions. Discovery after that time would

serve no useful purpose either to the Court or to the

plaintiffs.

Under these circumstances, the discovery will be cut

off sometime prior to the filing of the brief on June 11.

However, upon request of the plaintiffs, the Court

would give them additional time to conduct discovery

and thereby move the oral argument date from June

20 to some later time.

* * * * *

YoU. S. GOVERNMENT PRINTING OFFICE; 1991 282061 45083