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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 819

## 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

l.

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

16
16

18

28

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

)3

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

27

23

34

19

37

38

7
=
oa
:
a
+
«
i
J
-

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,

33

11

35

19

22

19

30

30

38

>
}
:
4
‘
y
’
;
’
)

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,

35

21

25

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:
tg

=
a

Pa fade

fe :
Ta

ot

OS PA ose
meet

may
a

- Ge.

Ape
Cpe

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ry

ae

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

|S
ct

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).

ee

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- °

7

_

(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

ee

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).

ee

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

a)

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.

Se

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

ce

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.

Se

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

oe

tare

es

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

i

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.

mo

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

j

- oo
ee
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

ae

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

oe

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0208%3A2. Public record. Not legal advice.