Opposition Brief — Pennsylvania v. Delaware Valley Citizens' Council for Clean Air

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

Office - Supreme Court, U.

FILED

JUN 3 1985

No. 84-1779 ae

IN THE SUPREME COURT OF THE CLERK

UNITED STATES

October Term, 1984

COMMONWEALTH OF PENNSYLVANIA et al.,

Petitioners

VS.

DELAWARE VALLEY CITIZENS‘ COUNCIL FOR

CLEAN AIR, et al.

and

UNITED STATES OF AMERICA,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION OF DELAWARE VALLEY

CITIZENS’ COUNCIL, et al.

Jerome Balter

*Michael Churchill

Public Interest Law

Center of Philadelphia

1315 Walnut Street,

Suite 1632

Philadelphia, Pa. 19107

(215) 735-7200

Counsel for Respondents

Delaware Valley Citizens

Council, et al.

*Counsel of Record.

COUNTER-STATEMENT OF PETITIONERS' QUESTION

Whether it is a per se abuse of

judicial discretion for a federal

district court to deny petitioners'

Reie G6O(b), F.R. Civ. F., motion te

vacate a federal court consent decree

entered five years earlier to settle

a lawsuit enforcing a federal

statute, when the moving party has

obtained substantial benefits as a

result of the consent decree and its

motion to vacate is based on a

State Supreme Court decision col-

laterally attacking the validity of

the consent decree.

TABLE OF CONTENTS

Counter-Statement of

POUR EOOROTe GEOBELOR. ccc ccc cccccs

ee ee OT RELOGD. ccc ccscccoees

Brief in Opposition of

Delaware Valley Citizens'

Council for Clean Air,

Qt al. wecceees ee

tea dad's b.wt pe6 6 0.6 © Tre rer rere

tee ed ene ebb 6666 66 0 08 ©

BUMOE TV ccc ccccc ec scecsseceses

I. The District Court

Did Not Abuse Its

Judicial Discretion

In Denying Petition-

ers’ Rule 60(b) Mo-

tion to Vacate the

COMOBORE BPOSTOG sc. ccccces

II. The Third Circuit De-

cision Is Not In

Conflict With Deci-

sions of the Other

DOPE RE ek edeeeecoecce

III. State Courts May Not

Enjoin Federal Court

Judgments Enforcing

Federal Statutes.......

eee oe Perr rrrrr rr "orerPrrrrire

TABLE OF CITATIONS

Page

Cases

Bardo v. Commonwealth, 40 Pa.

Commonwealth 558, 397 A.2d

* - ee fs eee e yaar 38

Boughner v. Secretary of Health,

Education and Welfare, 572

F.a6 Dre Lee Gat. EPTO) es 18, 39

Burd v. Commonwealth of Pennsyl-

vania Department of Trans-

portation, 66 Pa.Common-

wealth 129, 443 A.2d 1197

eet. kere prey yr or kas Sa

Burd v. Commonwealth of Pennsyl-

vania Department of Trans-

portation, No. 1506 C.D.

1981 (Cmwlth. Ct. of Pa.,

Al Bek 6 he hae Ob ee Ak. 44, 32

Central National Bank v.

Stevens, 169 U.S. 432

Cs bck ks 4 4s ane oe es 34

Commonwealth of Pennsylvania v.

Environmental Protection

Agency, 500 F.2d 246 (3d

+ me ae Pe er ae 3

DVCCCA v. Commonweaith, C.A. No.

76-2068 (E.D. Pa. 3/25/81);

aff'd. 674 F.2d 970 (3d Cir.

i. ° > Ae rrr ere rere Tee 6, 10

DVCCCA v. Commonwealth, C.A. No.

76-2068 (E.D. Pa. 5/20/81);

aff'd. 674 F.2d 976 (3d Cir.

1982); cert. denied 459 U.S.

i tS PEPPTTTVETT Tee

DVCCCA v. Commonwealth, C.A. No.

76-2068 (E.D. Pa. 6/16/81)

DVCCCA v. Commonwea

lth,

533

F.Supp. 869 (E.D. Pa. 1981

aff'd. 678 F.2d 470 (3d Cir.

1982); stay denied 458 U.S.

1125 (158397 cert. denied

459 U.S. 969. ccc cccccccces

DVCCCA v. Commonwealth, C.A. No.

2068 (E.D. Pa. G/13/84) ;

aff'd. 755 F.2d 38 (3d Cir.

2711/85) coccce

DVCCCA v. Commonwea

lth,

Appeal

Nos. 84-1179 and 84-1208

(3d Cir. Slip Op. 5

Embry v. Palmer, 10

7 +OU~.S.~.

/14/85)

CLES Z)eccccccccccecs ccccee

Federated Department Stores v.

Moitie, 452 U

Greco v. Reynolds,

416 F.

2d 963

CSdCir. 1969)... ccccccccces

-S. 394 (1981)

Kremer v. Chemical Constr. Corp.,

456 U.S. 461 (

London v. Philadel

1982)

hia,

412 Pa.

496, 194 A.2d 901 (1963)..

Mayberry v. Maroney,

1159 (3d Cir.

558

1977)

- iv -

F.2d

Set 2. «

| Sy -

vaisateiy eee

<% 7a y

ee > Pa

| 3} ark

| - . “e)

* Je et a a ct 3'5

7 : Pi - . 7

McKim v. Voorhies,

11 U.S.

Scanlon v. Commonwealth of

Pennsylvania Department

f Transportation, No.

)

1762 C.D. 1981 (Cmwlth

CK. OF Pia tves

hies (7

CEORER) 27h CEELZcccccecs

Scanlon v. Commonweaith of

Pennsylvania Department

of Transportation, 502

Pa. 577, 467 A.2d 1108

(Pa., 11/26/83) ..cceee

Stoll v. Gottlieb,

165 (1938)....

305 U.S.

14,

United States Steel Corp. v

Fraternal Association of

Steelhaulers,

Ol F.2d

COTS TTT) eT

1269 (3d Cir. 1979)......

United States v. Swift & Co.,

(2 )) re

286 U.S. 106 (

Virgin Islands National Bank

v. Tyson, 506 F.2d 802

(3d Cir. 1974)

Washineton v. Penwell,

570 (9th Cir.

700 F.2d

1983) ...e0%

West v. Bank of Commerce &

Trusts, 167 F.2d 664 (4th

Cir. 1948)....

Williams v. Wilkes,

18350) wc ccccccces

14 Pa.

228

16,

20,

}

‘

’

;

’

)

United States Constitution

United States Constitution,

Article 7 nr se ee

Federal Statutes

Clean Air Act, P.L. 95-95, 91

Stat. GBS) COF TIT). cae

Cieea Air Act, 42 9.8.C. 7501

et seq. eoeeneew#nwe#e?#e#e?%#s*?#* 2 2.6 @ @

Cleaa: &4e Bee, 62: 0.3.C. 73502,

a © a 2s Parra ae ee aa

Clean Air Act, 42 U.S.C. 7506,

a et ee ere

Federal Rules and Regulations

Rule 60(b), Federal Rules of

GEavGE PEOCOSSTE sik ccccccs

Rule 60(b)(5), Federal Rules

of Civil Procedure.....

Rule 60(b)(6), Federal Rules

OF Civil Preceegure. .csecs

ee Se eee

ee a ae a aks

40 C.F.R. 52.2020 et seq. ....

40 C.F.R. 52.2038(d)(6), 38

Fed. Reg. 32884

Set...) Seen betes

45 Fed. Reg. 33607 et aa

(5/20/80). eedbee bese

- vi -

13,

45 Fed. Reg. 33610 (5/20/80)..

45 Fed. Reg. 33611 (5/20/80)..

45 Fed. Reg. 81746 (12/12/80).

Commonwealth Statutes

i Es occ ccc ee

House Bill 739-1979 (vetoed)..

House Bill 456-1981, Act

| 0

Other Authorities

18 C. Wright, A. Miller &

E.Cooper 4468 (1981),

Federal Practice and

Ps 6 6 6 0 6 6 0 0 Piles a6 6

Degnan, Federalized Res

Judicata, 85 Yale L.J.

PUIG Ge 5 os 6 6 600 0 0c

- vii -

No. 84-1779

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1984

COMMONWEALTH OF PENNSYLVANIA et al.,

Petitioners

vs.

DELAWARE VALLEY CITIZENS' COUNCIL

FOR CLEAN AIR, et al.

and

UNITED STATES OF AMERICA,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION OF DELAWARE VALLEY

CITIZENS" COUNCIL, et al.

Respondents, Delaware Valley

Citizens' Council for Clean Air, et al,

respectfully request this Court to deny

the petition for a writ of certiorari

seeking review of the judgment of the

United States Court of Appeals for the

Third Circuit reported at 755 F.2d 38 (3d

ae ee

War Sr:

Pa fade

fe :

OS PA ose

meet

may

- Ge.

Ape

Cpe

Nees CTRL FR GRE 4 6 hE a SP

Cir. 1985) which is reproduced in

petitioners’ Appendix at 7a to 25a.

COUNTER-STATEMENT OF THE CASE

In June 1976 the plaintiffs,

Delaware Valley Citizens' Council for

Clean Air, et al. ("DVCCCA"), brought a

citizens’ lawsuit to enforce the Clean

Air Act, 42 USC 7401

seq. Named as

defendants were the Commonwealth of

Pennsylvania. and two of its executive

officers.! The lawsuit sought injunctive

relief to compel the Commonwealth to

comply with the Pennsylvania State

Implementation Plan ("SIP) to establish a

motor vehicle inspection and maintenance

("I/M") program in those areas of the

lIn addition to the Commonwealth,

the other defendants were the Pennsyl-

vania Secretary of Transportation and the

Pennsylvania Secretary of the Department

of Environmental Resources. The adminis-

trator of the United States Environ-

mental Protection Agency was also named

as a defendant but was subsequently

dismissed when the United States brought

its own action against the Commonwealth.

= =

state which had not attained compliance

with the national ambient air quality

standards for carbon monoxide, 40 CFR

50.8, or ozone, 40 CFR 50.9.2 The

SIP required the Commonwealth to imple-

ment the :I/M program by May 1, 1975, 40

CFR 52.2038(d)(6), 38 Fed Reg. 32884

(11/28/73).3

In February, 1977 the United

States commenced its own action against

the Commonwealth and the two actions were

consolidated. The parties then undertook

negotiations to settle the case by way

of a consent decree,

2The two geographical areas in which

the I/M program was required were the 5

county greater Philadelphia air region

and the 5county greater Pittsburgh air region.

3The Commonwealth never chalienged

the I/M requirement though it had

petitioned for review of other aspects of

the EPA regulation. Commonwealth of

Pennsylvania v. Environmental Protection

Agency, 500 F.2d 246 (3rd Cir. 1974).

io: ce

While these negotiations were

in progress the United States Congress

amended the Clean Air Act, P.L. 95-95,

91 Stat. 685 (8/7/77) in ways that were

particularly relevant to the negotia-

tions. Among the provisions added to the

Clean Air Act was Section 172, 42 USC

7502, which required a state to commit

itself by July 1, 1979 to implement an

I/M program if it determined that it

could not meet the carbon monoxide or

ozone national standards by December 31,

1982. In the event that such a state

failed to make the commitment it would be

ineligible to receive federal-aid highway

funds for those areas of the State

that were in non-attainment of the air

quality standards. Section 176, 42 USC

7506.

Since the Commonwealth acknow-

ledged that it could not attain the air

Mer Ie

quality standards by 12/31/82, 45

Fed. Reg. 33610 (5/20/80), the Common-

wealth risked the imminent loss of

hundreds of millions of dollars annually

of federal-aii highway funds if it did

not commit itself to implement the I/M

program.4

The Clean Air Amendments,

therefore, had a salutary effect on the

negotiations and in August 1978 the

consent decree was approved by the

Court. Thereafter the Commonwealth

submitted the consent decree to the EPA

4an estimate of the highway funds

which the Commonwealth might have lost,

on an annual basis, is approximately

$400,000,000. That is the amount

withheld from the Commonwealth in 1982

when the district court, as a civil

contempt sanction, enjoined the United

States Secretary of Transportation from

granting federal-aid highway funds to the

Commonwealth. DVCCCA v. Commonwealth,

533 F.Supp. 869 (E.D. Pa. 1982), aff'd

678 F.2d 470 (3d Cir. 1982), cert. den.,

459 U.S. 969 (1982).

etal

So a

FOOD Ben Whe Cy een F anaes he

Se wane

win. So ie teats I tee

DEE SERIE LEEDS BME 6 PS Vint NEI NR OO ae ten

as evidence of its commitment to the I/M

program. 45 Fed. Reg 33611 (5/20/80).

Throughout the negotiations the

defendants (the Commonwealth and the two

state executive officers) were repre-

sented by the Attorney General of

Pennsylvania. DVCCCA v. Commonwealth,

674 F.2d 970, 973-74 (3d Cir. 1982). The

attorney general never voiced any

question as to his legislative authority

to enter into a decree that obligated the

Commonweaith to implement an I/M pro-

gram. When the parties'indicated their

preference for a "franchise system" I/M

program the attorney general informed the

negotiators that such a system had not

been authorized by the legislature.

Therefore the consent decree explicitly

conditioned the use of a franchise

System on future legislative action

- 6- °

(65a).5 If, however, the legislature

failed to adopt franchise system legisla-

tion the Commonwealth agreed to employ a

"private garage” system (65a) for which

legislative authority did exist according

to the attorney general. The consent

decree, therefore, did not condition the

use of a private garage system on any

future legislative enactment.

The filing of the consent

decree, unfortunately, did not end the

Commonwealth's opposition to the I/M

program. The first manifestation of this

opposition was the state legislature's

refusal, in 1979, to pass legislation for

a “franchise system" I/M program. Under

the terms of the consent decree, then,

the Commonwealth was required to imple-

ment a “private garage" system. (65a).

SReferences are to the petitioners’

Appendix.

—— ee

— ee ee

In December 1979 the General

Assembly voted for House Bill 739-1979

which called for a one year delay in the

I/M program but the bill failed enactment

when the legislature could not override

the Governor's veto. A consequence of

this legislative attempt to interfere

with the consent decree, however, was a

delay of the I/M program from August l,

1980, as required by the consent decree

(79a), to May 1, 1981 as provided in the

modified consent decree. (86a).

The Commonwealth then failed to

implement the I/M program by the May l,

1981 start-up date and the Common-

wealth was held to be in violation of the

consent decree, DVCCCA v. Commonwealth,

Cites Bo. 76-2068 (8.3. Pa. -3/20781)+4

tee OTe Tae Se Coe: Cie 1988};

eert. den. 459 U.S. 905 (1982). As a

consequence the district court had to

an Se

reschedule the I/M program to May l,

oer x DYCCCA vy. Coggsonwealth,

C.A. No. 76-2068 (E.D. Pa. 6/16/81).

The General Assembly then

enacted, over the Governor's veto, House

Bill 456-1981, Act 99-1981 (10/5/81)

which prohibited the Pennsylvania

Department of Transportation from

expending any funds to establish or

implement the I/M program. The Common-

wealth was then held to be in civil

contempt and a contempt sanction was

imposed which barred the Commonwealth

from receiving federal-aid highway funds

for the greater Philadelphia and Pitts-

burgh air regions. DVCCA v. Common-

weestn, 333 F.Supp 869 (E.D. Pa.

A733 782)2 oft a. 678 F.2d 470 (3d

Gare Beear?s @teas Gen. 458 U.S. 1125

(1982); cert. den. 459 U.S. 969 (1982).

The contempt sanction remained

in effect sixteen months until the

General Assembly enacted Act 3-1983

(5/4/83) authorizing the Pennsylvania

Secretary of Transportation to implement

the I/M program.

In 1980, almost two years after

the consent decree had been approved by

the district court two groups of state

legislators petitioned the district court

for permission to intervene in the

federal court action for the purpose of

vacating the consent decree but both

petitions were denied, DVCCCA v. Common-

et enw. we ae eae © ee See ee

(E.D. Pa. 3/25/81); eff", G74 Fi2é. 970

(3d Cir. 1982).

While the appeal of the

intervention decision was pending in

the Circuit Court these legislators, in

August 1981, petitioned the Commonwealth

—" =

SRO IE Lg Se aS RR ie He 6S wh ey ah POE.

Court of Pennsylvania to enjoin the

Pennsylvania Department of Transportation

from implementing the I/M program.®

These petitions did not include the

federal court plaintiffs, DVCCA and

United States, as parties to the state

court proceedings.

Though the General Assembly's

attempt to delay the I/M program in

December 1979 (House Bill 739-1979)

indicated General Assembly recognition of

legislative authority for the I/M

program, in the Commonwealth Court the

state legislators contended that there

had been no legislative authority for

6Burd v. Commonwealth of Pennsyl-

vania Department of Transportation,

Ro. 1506 C.D. 1981 (Cawlth. Ct. of

Pa.) and Scanlon v. Commonwealth of

Pennsylvania Department of Transpor-

tation, No. 1762 C.D. 1981 (Cmwlth.

Ct. of Pa.)

—

the I/M program when the Attorney General

entered into the consent decree in 1978.

The Commonwealth Court in

April, 1982 rejected the legislators'

position and held that legislative

authority had existed in 1978 .to

implement an I/M program. Burd v. Com-

monwealth, 66 Pa. Commonwealth Ct. 129,

443 A.2d 1197 (5/14/82).

One year after the Commonwealth

Court's decision in Burd, supra, the

General Assembly enacted Act 3-1983

(5/4/83) which authorized the Department

of Transportation to go forward with the

I/M program. This purged the

Commonwealth's contempt and on May 6,

1983 the district court vacated the

contempt sanction to enable the Common-

wealth to receive the $400,000,000

of withheld federal-aid highway funds.

On May 18, 1983 the district court again

modified the consent decree to establish

June 1, 1984 as the new date for start up

of the I/M program, a date more than nine

years later than the EPA required

start up date of May 1, 1975. 40 CFR

52.2038(d)(6), 28 Fed. Reg. 32884

(11/28/73).

The enactment of Act 3-1983,

however, did not end the Commonwealth's

resistance to the I/M program. Some five

months after its passage, and after the

federal-aid highway funds had been made

available to the Commonwealth, and more

than five years after the consent decree

had been filed, the Supreme Court of

Pennsylvania, in a 3 to 2 divided

decision reversed the Commonwealth

Court's decision in Burd and held that

the Pennsylvania Attorney General had not

had legislative authority in 1978 to

commit the Commonwealth to implement an

I/M program and declared that the federal

court consent decree was a nullity.

Scanlon v. Commonwealth, 502 Pa. 577,

467 A.2d 1108 (10/26/83). (26a).

On remand, the Commonwealth

Court enjoined the Pennsylvania Depart-

ment of Transportation from implementing

the consent decree. Burd v. Common-

wealth, No. 1506 C.D. 1981 (Cmwlth.

Ct. 1/9/84). (57a).

Notwithstanding the state

court injunction the Pennsylvania

Department of Transportation continued

its I/M program preparations in confor-

mance with its obligations under the

consent decree. Some two months later,

on March 5, 1984, the Commonwealth

submitted its motion to the district

court requesting the court, under Rule

60(b)(5), and (6), Fed. Rules of Civil

Proc., to vacate the consent decree

OO eee

in the light of the state court deci-

sions. The district court, however,

denied the motion. DVCCA v. Common-

wealth, C. A. 76-2068 (E.D. Pa. 4/13/84)

($030 a888 4.0785 F.2d 90° 490

Cir. 27172783).. ¢7a). |

The Commonwealth did, finally,

implement the I/M program on June l,

1984, as required by the district court

order of 5/18/83, and the program has

been operating continuously to the

present time.

REASONS FOR DENYING THE WRIT

SUMMARY

Petitioners seek review of the

circuit court decision affirming the

district court's denial of petitioners'

motion to vacate the federal district

court consent decree designed to enforce

federal environmental legislation.

Petitioners filed their motion to vacate

more than five years after the consent

decree was entered and more than two

years after petitioners were held to be

in civil contempt.

Motions to vacate final

judgments, under Rule 60(b),

awe Sats Fey. @£@ dirtocted te. the

eiscretion of the district court.

Appellate review of Rule 60(b) decisions

are based on an abuse of discretion

standard.

«10

The circuit court review found

there was a "profound lack of equities in

the [petitioners'] position" (23a) and

held that the district court had not

abused its discretion. This strong,

unanimous appellate affirmation of the

district court's decision does not

warrant yet another review for abuse of

discretion.

Petitioners contend that a

federal court, as a matter of law, must

vacate a federal court consent decree if

subsequent to the consent decree a State

Supreme Court determines that as a matter

of state law, that the federal decree is

a nullity. This claim has no support in

case law, is contrary to the decisions of

this Court and violates the equitable

principles for deciding motions to modify

or vacate final federal court judgments.

a TP

I. THE DISTRICT COURT DID NOT

ABUSE ITS JUDICIAL DISCRETION

IN DENYING PETITIONERS RULE 60(b)

MOTION TO VACATE THE CONSENT DECREE

—A-

The Commonwealth's motion to

vacate the consent decree was filed more

than five (5) years after the decree

was approved by the district court. It

was brought pursuant to Rule 60(b),

F.R. Civ. P., which provides for equi-

table relief from final judgments to

strike a proper balance between the

conflicting principles that litigation be

brought to an end and that justice be

done, Boughner v. Secretary of Health,

Education and Welfare, 572 F.2d 976, 977

(34 Cis *978). Rule 60(b) motions,

therefore, must be decided on equitable

grounds at the sound discretion of the

court. Virgin Islands National Bank

v. Tyson, 506 F.2d 802, 804 (3d Cir

1974); Greco v. Reynolds, 416 F.2d 963

(3d Cir. 1969).

The scope of appellate review of

Rule 60(b) decisions is limited to a

determination of whether the district

court decision was an abuse of judicial

discretion. United States Steel

Corp. v. Fraternal Association of

Steelhaulers, 601 F.2d 1269, 1274 (3d

Cir. 1979), Boughner v. Secretary of

Health, Education and Welfare, 572 F.2d

976, 977 (3d Cir. 1978).

Relief from final judgments is

extraordinary and may be granted only

upon a showing of exceptional circum-

stances and even then the party seeking

relief must bear a heavy burden to

establish that "dangers once substantial,

have become attenuated to a shadow.”

= 1a

Usites States ¢,. Switt & Co,., 286

U.S. 106, 119 (1932); and the principle

of finality of judgment demands that the

party seeking relief demonstrate that

absent relief from judgment it will

suffer extreme and unexpected hardship.

Mayberry v. Maroney, 558 F.2d 1159, 1163

C34 Cir. 2977}.

Petitioners’ motion to vacate

was brought under Rule 60(b)(5) and Rule

60(b)(6). Under Rule 60(b)(5) the

moving party must demonstrate that it is

entitled to relief from the terms of the

final judgment (or consent decree)

because "it is no longer equitable that

the judgment should have prospective

application." Rule 60(b)(6) requires the

moving party to demonstrate that there is

"any other reason justifying relief from

the operation of the judgment." Peti-

tioners have not met the test in respect

to either of these rules.

—B-

' lawsuit to

This citizens

enforce the Clean Air Act, 42 USC 7401 et

seq., was commenced in 1976 because the

Commonwealth had failed to meet its

obligation under the Pennsylvania State

Implementation Plan, 40 CFR 52.2020 et

seq., to implement a motor vehicle

emission inspection and maintenance

("I/M") program by May 1, 1975. 40 CFR

52.2038 (d)(6). The I/M program is one

of the United States Environmental

Protection Agency ("EPA") requirements

designed to attain compliance with the

national ambient air quality standards

for carbon monoxide, 40 CFR 50.8, and

ozone, 40 CFR 50.9.

Now, ten years after the I/M

program was scheduled to start, the

Commonwealth has still not attained the

national air standards for those two air

pollutants. Therefore, it cannot

be said that the danger which the consent

decree was designed to help overcome has

been "attenuated to a shadow.”

The petitioners acknowledge that

the continuation of the I/M program

required by the consent decree will not

cause them to suffer "extreme and

unexpected hardship" because they declare

they will continue the I/M program even

if the consent decree, is vacated.

(23a).

Petitioners fail to meet the

danger attentuation test of Swift & Co.,

Supra, and they fail to meet the hardship

test of Mayberry, supra. Failure to meet

either of these tests would warrant that

tare

petitioners' motion be denied, failure to

meet both tests requires that the motion

to be denied. The nine year history of

this litigation demonstrates that "every

branch of the government of the Common-

wealth of Pennsylvania - the executive,

legislative, and judicial - has fought

tooth and nail every effort of plaintiff

to make Pennsylvania respect the provi-

sions of a federal statute." DVCCCA

v. Commonwealth, Nos. 84-1179 & 84-1208

Cee wae. Se RGsES)s Slips es. p. 18.

(Becker, Circuit Judge).

The counter-statement of the

case, supra, sets forth the long list of

executive, legislative and judicial

actions by the Commonwealth to avoid

compliance with federal law and federal

court orders. These ehede. inter alia,

the violation of the consent decree,

DVCCCA v. Commonwealth, C.A. No. 76-2068

“2; oe

(E.D. Pa. 5/20/81); affd. 674 F.2d 976

(3d Cir. 1982); cert. den. 459 U.S. 905

(1982), which caused the I/M program to

be delayed twelve (12) months; legisla-

tive enactment of House Bill 456, Act

99-1981 (10/5/81) which cut off funds for

implementing the I/M program and caused

the district court to hold the Common-

wealth in civil contempt, DVCCCA v. Com-

monwealth, 533 F.Supp 869 (E.D. Pa.

1982); aff'd. 678 F.2d 470 (3d Cir.

1982); stay den. 458 U.S. 1125 (1982)

(Rehnquist, J.); cert den. 459 U.S. 969

(1982), and caused the I/M program to be

delayed an additional twenty five

(25) months.

Throughout this period of

intense legislative and executive

department resistance the Commonwealth

was receiving approximately $400,000,000

per year of federal-aid highway funds for

the greater Philadelphia and Pittsburgh

air regions.’ The Commonwealth would have

been ineligible for these federal

funds unless it had made a firm and

binding commitment to implement the I/M

program. Section 176, 42 USC 7506. See

also 45 Fed. Reg. 33607 et seq.

(5/20/80).8 The Commonwealth, however,

7These funds were temporarily

withheld by the civil contempt sanction

imposed in January, 1982, DVCCCA v. Com-

monwealth, 533 F.Supp 3609 (E.D.

Pa. 1982), until May, 1983 when the state

legislature enacted Act 3 - 1983 (5/4/83)

and purged the Commonwealth's contempt.

8In 1980, when the state of Califor-

nia failed to commit itself to implement

an I/M program in the air regions which

had not attained national ambient air

quality standards for ozone or carbon

monoxide federal-aid highway funds were

withheld in accordance with the require-

ments of Section 176. 45 Fed. Reg. 81746

(12/12/80).

has stated it is not prepared to return

these federal-aid funds to the federal

government if the federal courts were to

grant their motion to vacate the consent

decree. (22a). Thus, the Commonwealth

would have the federal court nullify the

consent decree on the basis of the

decision of the Pennsylvania Supreme

Court, Scanlon v. Commonwealth, 502

Pa. 577, 467 A.2d 1108 (1983), but

would retain the fruits of the consent

decree as though the decree had not been

nullified.

Petitioners contend, despite

their years long contumacious opposition

to the I/M program, that it was an abuse

of judicial discretion for the district

court to refuse to “put plaintiffs in a

position whereby enforcement of the

rights plaintiffs have acquired through-

=—

out this extensive litigation would be in

[petitioner's] hands." DVCCCA v. Common-

wealth, Ges No. 76-2068 (2.0. Pa.

4/13/84). (2a). In unanimously affirm-

ing, the Circuit Court concluded "[Wle

find a profound lack of equities in the

Commonwealth's position before the

district court." DVCCCA v. Commonwealth,

775 F.2d 38 (3d Cir. 4/26/84) (Aldersert,

Chief Judge).

In sum, petitioners have failed

to meet those tests established by

federal courts to warrant a modification

or vacation of final judgments. A review

of the equities so clearly establishes

that they are against the petitioners

that further appellate review is unwar-

ranted.

II. THE THIRD CIRCUIT DECISION

IS NOT IN CONFLICT WITH

DECISIONS OF THE OTHER CIRCUITS

Though petitioners submitted

their motion to vacate under Rule 60(b)

and the district court properly used

equitable principles to decide the motion

and the Court of Appeals for the Third

Circuit found that the district court had

not abused its discretion petitioners,

nonetheless, contend that the Third

Circuit decision is in conflict with

decisions of two other Circuit Courts.

Petitioners contention is manifestly

unsound since each Rule 60(b) motion is

unique and must be decided on equitable

principles on its own set of facts and

its own merits. Cf., Mayberry v. Ma-

roney. 558 F.2d 1159, 1164 (3d Cir.

1977).

« 2 o

- oo

hae Ley aay -

Hoping to avoid the equita-

ble principles which guide Rule 60(b)

determinations, petitioners’ brief fails

to note that their motion to vacate was

brought pursuant to Rule 60(b) and that

the district court's denial of the motion

was correctly reviewed by the Third

Circuit under an abuse of discretion

standard.

Petitioners suggest that the

district court should have vacated the

consent decree as a matter of law

(Pet. Statement of Question), (Pet.

Br. p. 14) because of the Pennsylvania

Supreme Court's collateral attack on the

federal court consent decree. This is a

question which petitioners had not

submitted to the district court.

Petitioners have not cited any

case which holds that a final federal

SS. 2

ee ee

amd

court judgment must be vacated as a

matter of law. Such a rule does not

exist because it could result in severe

inequities. Such a rule, applied here,

would result in the unjust enrichment of

the petitioners who gained hundreds of

millions of federal funds by entering

into the consent decree and now wish to

escape the obligations of that very same

decree. That is why all motions for

relief from final judgments under Rule

60(b) are decided on equitable rather

than legal grounds and why state court

decisions subsequent to a final federal

court judment, cannot have the effect of

nullifying the federal court judgment.

Petitioners cite Washington

v. Penwell, 700 F.2d 570 (9th Cir. 1983),

and West v. Bank of Commerce & Trusts,

167 F.2d 664 (4th Cir. 1948), as cases

that are in conflict with the Third

Circuit decision here. Petitioners are

mistaken. The cases cited do not involve

state court decisions to nullify federal

judgments subsequent to a federal court

judgment and the vacation of the consent

decrees in those cases were made under

traditional equitable standards based on

the particular facts of the individual

cases.

Hence the Third Circuit

decision does not conflict with decisions

in the other circuits.

IIL. STATE COURTS MAY NOT

ENJOIN FEDERAL COURT JUDGMENTS

ENFORCING FEDERAL STATUTES

In Scanlon v. Commonwealth

Department of Transportation, 502

Pa. 577, 467 A.2d 1108 (1983), two groups

of state legislators sought to enjoin the

executive branch of the Commonwealth from

implementing the I/M program mandated by

the federal court consent decree.

Neither DVCCCA nor the United States,

plaintiffs in the federal action, were

parties to the state court proceeding.

In the state court proceeding,

involving only the three branches of the

Commonwealth government, the Pennsylvania

Supreme Court held that legislative

authority for an I/M program had not

existed when the consent decree was

entered and the court declared the

federal decree to be a nullity and

unenforceable. (42a) Thereafter the

Commonwealth Court enjoined the Pennsyl-

vania Department of Transportation "from

carrying out the terms and conditions of

the Consent Decree." Burd v. Common-

wealth Department of Transportation,

No. 1506 C.D. 1981 (Cmwlth Ct. 1/9/84).

(58a).

S I

Though the state court injunction

has been in force since January 1984

petitioners have never conformed to its

terms. Instead, petitioners chose to

abide by the requirements of the federal

court consent decree; they implemented

the I/M program on June 1, 1984 and have

continued to operate the program ever

since. Nevertheless, petitioners

maintain that the federal courts must

give full faith and credit to the

decision of the Pennsylvania Supreme

Court and must vacate the federal

decree. Petitioners’ contention is

without support in law.

Since McKim v. Voorhies, ll

U.S. (7 Cranch) 279 (1812), when this

Court declared "[t]he State Court has no

jurisdiction to enjoin a judgment of the

Circuit Court of the United States..."

Id. at 281, the federal courts have

- 33 -

consistently upheld the rule of comity

which requires state courts to recognize

and honor federal court judgments. [In

Embry v. Palmer, 107 U.S.-3 (1882) this

Court declared: |

"{TTjhe judgments of

the courts of the United

otates have invariably

been recognized, so far

as concerns the obliga-

tion created by them,

with domestic judgments

of the States, wherever

rendered and wherever

sought to be enforced...

The rule for determining

what effect shall be

given to such judgments

is that declared by this

court, in respect to the

faith and credit to be

given to the judgments of

State courts in the

courts of other States."

107 U.S. at 10.

Central National Bank v. Ste-

vens, 169 U.S. 432 (1898) held that "the

exemption of the authority of the Courts

of the United States from interference by

legislative or judicial action of the

States is essential to their independence

and efficiency." Id. at 460-61.

Stoll v

And in

. Gottlieb, 305 U.S. 165 (1938)

this Court ruled that:

305 U.S.

of res judicata,

"[T]he judgments and

decrees of the federal

courts in a state are

declared to have the same

dignity in the courts of

that state as those of

its own courts in a like

case and under similar

circumstances. But

where judgment or decree

of the federal court

determines a right

under a federal statute,

that decision is final

until reversed in

an appellate court, or

modified or set aside in

the court of its rendi-

Seem: 1 Citations

omitted].

(emphasis added).

at 170.

Whether grounded on the doctrine

full faith and credit or

the Supremacy Clause of the United

States Constitution,

Article VI, the

federal courts have consistently defended

federal court judgments from direct and

collateral attack by state courts. "It

would be unthinkable to suggest that

state courts should be free to disregard

the judgments of federal courts given the

basic requirement that state courts honor

the courts in other states and that

federal courts must honor state court

judgments." 18 C. Wright, A. Miller &

E. Cooper § 4468 (1981), Federal Practice

and Procedure. See also, Degnan,

Federalized Res Judicata, 85 Yale

Lud. 7Oh. CA976}.

Petitioners do not question the

federal subject matter jurisdiction of

this action, nor do they question the

authority of the Pennsylvania Attorney

General to represent the Commonwealth and

the other defendants in the action.

What petitioners do question is the scope

of the Attorney General's authority when

- 36 -

ap EET REPS oni SL

he negotiated the consent decree. But

that question is clearly ancillary to the

enforcement of the federal statute; it

could have been raised before the final

federal court judgment was entered. Now,

more than five years after that judgment

was entered, the doctrine of res judicata

bars relitigation by the parties or their

privies of issues that were or could have

been raised in the original action.

Kremer v. Chemical Constr. Corp., 456

U.S. 461, 162 S. Ct. 1883, 1889 n.6

(1982); Federated Department Stores

v. Moitie, 452 U.S. 394, 398 (1981).

The res judicata doctrine

has also been recognized by the courts of

Pennsylvania to bar relitigation of

matters ancillary to federal court

judgments where there was federal

law subject matter jurisdiction. Thus in

London v. Philadelphia, 412 Pa. 496, 194

- +

A.2d 901 (1963) the Pennsylvania Supreme

Court declared:

"Once the federal court

validly acquired juris-

diction, its jurisdic-

tion extended to all

matters ancillary to the

main cause of action even

though the ancillary

matter lacked federal

jurisdictional requisi-

tes...

(emphasis added)

412 Pa. at 499, 194 A.2d at 902-03.

Similarly in Bardo v. Commonwealth, 40

Pa. Commonwealth 558, 397 A.2d 1305

(1979) the state appellate court noted:

"Ie is etear that eo

federal court decision is

res judicata in subse-

quent state proceed-

ings...”

Id. at 587 n. 1, 397 A.2d at 1307 n. l,

See also Williams v. Wilkes, 14 Pa. 228,

231 (1850).

The federal and Pennsylvania

state courts have long recognized that

» an

the doctrine of res judicata bars the

state courts from interfering with

federal judgments implicating federal

law. The decision in Scanlon is an

aberration in that judicial history.

Therefore review of the Circuit Court's

judgment is not warranted.

-. o

CONCLUSION

For the foregoing reasons

Respondents, Delaware Valley Citizens

Council for Clean Air, respectfully

request this Court deny the Petition for

a Writ of Certiorari to review the

judgment of the Court of Appeals.

Respectfully submitted,

The Public Interest Law Center

of Philadelphia

Jerome Balter

*Michael Churchill

1315 Walnut Street, Suite 1632

Philadelphia, Pa. 19107

(215) 735-7200

Counsel for Respondents,

Delaware Valley Citizens

for Clean Air et al.

*Counsel of Record

+ 2 a

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.