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

Supreme Court, U.S.

PILED

\3) JUN 28 1985

No. 84-1779

ALEXANDER L. STEVAS

Saini

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

COMMONWEALTH OF PENNSYLVANIA, ET AL., PETITIONERS

Vv.

DELAWARE VALLEY CITIZENS’ COUNCIL FOR

CLEAN AIR, &T AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Acting Solicitor General

F. HENRY HABICcnrT II

Assistant Attorney General

PETER R. STEENLAND, JR.

JACQUES B. GELIN

Maria A. IIZUKA

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY *

QUESTION PRESENTED

Whether the Commonwealth of Pennsylvania was pre-

cluded by the doctrine of res judicata from relying on a state

court judgment “invalidating” a federal court consent

decree entered into by the State to challenge the earlier

federal court judgment ratifying the consent decree.

(I)

TABLE OF CONTENTS

Page

See eepinnnnseaiedeansdensseukewn |

ie iiss oS an oh oes ob aw ob 6 ew aac |

ees ie Silsbee baka ean web bbed ke odarwe |

Cau sh ee bddsbeisecsatandseeeneceakevus 6

I eta eee ee ae leb eed iuun 12

TABLE OF AUTHORITIES

Cases:

A.D. Juilliard & Co. v. Johnson,

166 F. Supp. 577, aff'd, 259 F.2d 837,

RG es WI RE ebb edt cesccsccscces 8

American Furniture Co. v. International

Accommodations Supply, 721 F.2d 478 ....... 7

Bardo v. Commonwealth, 40 Pa. Commw.

rr 8

Burd v. Commonwealth, 443 A.2d 1197,

rev'd sub nom. Scanlon v. Commonwealth,

Be Ee i i ST Pauw BED cnc cccvcccccececs 4,8

Delaware Valley Citizens’ Council for Clean

Air v. Pennsylvania, 674 F.2d 970,

ee ae | Y . ee 4

Delaware Valley Citizens’ Council for Clean

Air v. Pennsylvania, 674 F.2d 976,

cert. dented, 459 U.S. 905 2... cccccccccccccces 3

Delaware Valley Citizens’ Council for Clean

Air v. Pennsylvania, 533 F. Supp. 869,

aff'd, 678 F.2d 470, cert. denied,

CY ae ee dee dnduesasecsceess 3, 4, 11

IV

Page

Cases—-Continued:

Donovan v. City of Dallas, 377 U.S. 408 ....... 8

Ry VE, TE TS ects ide cndencncs 8

Erie R.R. v. Tompkins, 304 U.S. 64 .......... 10

Hines v. Davidowitz, 312 U.S. 52 .............. a

Kremer v. Chemical Construction Corp.,

| Perr Ter Tre reer Teer rT ee 6-7

Los Angeles Branch NAACP v. Los Angeles

Unified School Dist., 750 F.2d 731 ........... 8

Nash County Bd. of Educ. v. Biltmore Co.,

if Ba errr rer eer eee 8

Nevada v. United States, 463 U.S. 110 ......... 8

Pennsylvania v. EPA, 500 F.2d 246 ............ 2

Sola Electric Co. v. Jefferson Electric Co.,

PET SO SOE aU CER RKRSRG hid 06s keno ss 10

Stoll v. Gottlieb, FOS U.S. 165 ......ccccccecere 8

W.E. Hedger Transp. Corp. v. Ira S. Bushey

re ek Ere 7

Washington v. Penwell, 700 F.2d 570 ...... 10, 11

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass'n,

Ee See ak hho ch ka PULA erkaenssensdene

West v. Bank of Commerce & Trusts,

FOF PAGO 65 be ce dvdr ntancedasasaeecs 10, 11

ae

Page

Constitution and statutes:

U.S. Const. Art. IV, § 1 (Full Faith

Oh Ce EE ib. bo % sk 6 nS 05.0 6s Ssdcvivees 8

Anti-Injunction Act, 28 U.S.C. 2283 ............ 9

Clean Air Act Amendments of 1977, 42 U.S.C.

rg fF MPT ToT eT RTE TTTT ET TTT Cie Tee. 2

GE TEA. PD oo cen acccdsécsnasnns 10

So UE, Pee. cp acacdevesnecexeueun 10

Se Fe SAK acs 00004450008 Ceneenee 2

Clean Air Amendments of 1970, 42 U.S.C.

te BE os fF Serre rre rT irrr rT l

42 U.S.C. (1976 ed.) 1857c-5 .............. 2

Act of May 4, 1983, Act No. 3, 75 Pa. Cons.

Stat. Ann. § 4706(b) (Purdon Supp.

GSE dd hia hn wins ssn bieennsadanreenneee 5

In the Supreme Court of the Hnited States

OcTOBER TERM, 1984

No. 84-1779

COMMONWEALTH OF PENNSYLVANIA, ET AL., PETITIONERS

v.

DELAWARE VALLEY CITIZENS’ COUNCIL FOR

CLEAN AIR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 7a-25a) is

reported at 755 F.2d 38. The orders of the district court

(Pet. App. la-2a, 3a-6a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 11, 1985. The petition fer a writ of certiorari was

filed on May 3, 1985. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Clean Air Amendments of 1970, 42 U.S.C. (1976

ed.) 1857 et seq., required each state to submit to the Envi-

ronmental Protection Agency a state implementation plan

(1)

2

for reducing air pollution to meet certain national stan-

dards. 42 U.S.C. (1976 ed.) 1857c-5.' Petitioner Common-

wealth of Pennsylvania submitted a plan that included,

among other things, an inspection and maintenance (I/ M)

program for automobile emission systems. EPA modified

and promulgated the plan; it specified that the I/ M pro-

gram was to be implemented by May |, 1975. The I/M

program required motor vehicles to be inspected annually

to determine if their exhaust emitted excessive amounts of

pollutants. If they did, the owners would be required to

have the necessary repairs made. The Commonwealth

sought review of certain aspects of the plan as promulgated,

but it did not challenge either the requirement that it

implement an I/ M program or the deadline for implement-

ing that program. See Pennsylvania v. EPA, 500 F.2d 246

(3d Cir. 1974).

The Commonwealth never implemented the I/M pro-

gram. In 1976, respondent Delaware Valley Citizens’ Coun-

cil for Clean Air (Delaware Vailey) sued petitioners—the

Commonwealth and certain state agencies and officials—in

the United States District Court for the Eastern District of

Pennsylvania, seeking to require them to implement the

1/ M program. In 1977, the United States also sued petition-

ers, seeking similar relief. Pet. App. 11a. On August 29,

1978, petitioners entered into a consent decree with Dela-

ware Valley and the United States, agreeing to implement

an I/M program for certain areas by August |, 1980. The

consent decree was embodied in an order of the district

court (id. at 60a-80a).

In March 1980, the parties and the district court agreed to

extend the deadline for implementing the program to May

1, 1981 (Pet. App. 86a). The Commonwealth failed to meet

'The Clean Air Act was amended and recodified in 1977. See Clean

Air Act Amendments of 1977, 42 U.S.C. 7401 et seg. The provision

governing state implementation plans now appears at 42 U.S.C. 7410.

3

that deadline. In February 1981, petitioners still had not

issued regulations specifying the equipment needed in the

I/M program, and they sought a further extension of the

deadline to January 1, 1983. In June 1981, the district

court, after learning from EPA that air quality in the areas

covered by the decree still did not meet the specified

national standard, refused to extend the deadline further.

The court declared petitioners to be in violation of the

consent decree and ordered them to submit a plan for the

immediate implementation of the I/ M program. The court

modified that plan and ordered that it be implemented by

May i, 1982. On petitioners’ appeal, the court of appeals

unanimously affirmed. Delaware Valley Citizens’ Council

for Clean Air v. Pennsylvania, 674 F.2d 976 (3d Cir.), cert.

denied, 459 U.S. 905 (1982).

2. Following the district court’s decision of June 1981,

the Pennsylvania legislature enacted a statute, H.B. 456,

over the governor’s veto, prohibiting the expenditure of any

funds on the 1/ M program. Delaware Valley then moved to

have petitioners declared in contempt.

In a lengthy opinion, the district court declined to con-

sider H.B. 456 to be a changed circumstance that warranted

modification of its order. The court noted that “the Com-

monwealth of Pennsylvania with a full range of technical

and professional guidance and representation at its disposal

entered, after considerable opportunity for deliberation

and negotiation, into a consent decree in which it agreed to

implement an I/M program * * *.” Delaware Valley Citi-

zens’Council for Clean Air v. Pennsylvania, 533 F.Supp.

869, 880 (E.D. Pa.), aff'd, 678 F.2d 470 (3d Cir.), cert.

denied, 459 U.S. 969 (1982). The court further stated (533 F.

Supp. at 880): “In this case, there is no doubt that [petition-

ers] are no longer complying with the consent decree. [Peti-

tioners] themselves admitted, that with the passage of H.B.

456, they had discontinued all efforts to implement an I/ M

4

program * * *.” The district court accordingly declared the

Commonwealth to be in civil contempt and imposed sanc-

tions. The court enjoined the Secretary of the United States

Department of Transportation from approving any pro-

jects or awarding any grants for highways in the areas

covered by the consent decree other than for the purposes of

safety, mass transit, or projects related to the improvement

of air quality. 533 F. Supp. at 883-884. On petitioners’

appeal, the court of appeals again unanimously affirmed,

and this Court again denied certiorari. Delaware Valley

Citizens’ Council for Clean Air v. Pennsylvania, 678 F.2d

470 (3d Cir.), cert. denied, 459 U.S. 969 (1982).

3. Shortly after the enactment of H.B. 456, two groups of

state legislators filed actions in the Commonwealth Court

of Pennsylvania, challenging the validity of the consent

decree. Burd v. Commonwealth, 443 A.2d 1197 (1982),

rev'd sub nom. Scanlon v. Commonwealth, 502 Pa. 577,

467 A.2d 1108 (1983).? Characterizing the action brought

by the state legislators as “a classic confrontation between

the federal and state judicial systems” (443 A.2d at 1198),

the state court recognized both the validity of the federal

decree and the Commonwealth’s statutory authority, H.B.

456 notwithstanding, to implement the decree. Neverthe-

less, the court also acknowledged that, because of H.B. 456,

the Commonwealth lacked the financial means to exercise

its statutory authority. The court declined to grant the

legislators’ notion to enjoin petitioners from implementing

the I/M program.

On appeal, the Supreme Court of Pennsylvania reversed

and remanded. Scanlon v. Commonwealth, 502 Pa. 577,

467 A.2d 1108 (1983) (Pet. App. 26a-55a). Holding that the

?These same legislators had sought unsuccessfully to intervene in the

federal proceedings. Delaware Valley Citizens’ Council for Clean Air

v. Pennsylvania, 674 F.2d 970 (3d Cir.), cert. denied, 458 U.S. 1125

(1982).

5

Commonwealth was not bound by the federal decree

because, first, the decree “was signed only by the Pennsyl-

vania Department of Transportation and the Pennsylvania

Department of Environmental Resources” (id. at 29a n.5),

and, second, because relevant state motor vehicle statutes

provided no authority for the Pennsylvania Department of

Transportation to enter into the consent decree,’ the state

supreme court declared the federal decree “a nullity” (id. at

42a). Two justices of the state supreme court dissented (id.

at 43a-5Sa).

On remand, the Commonwealth Court ordered the .

Commonwealth to cease all activities required to comply

with the federal consent decree (Pet. App. 57a-59a).

4. The Commonwealth then moved in federal court to

vacate the consent decree. The motion was denied by the

district court (Pet. App. la-2a), and the court of appeals

unanimously affirmed (id. at 7a-25a). Rejecting the notion

that the dispute turned on state law, the court of appeals

first stated that “what was attacked collaterally in the state

court system was a final federal court judgment” (id. at

15a). The court of appeals then noted that the state supreme

court’s conclusion that the Commonwealth could not be

bound by the signatures of counsel for the Pennsylvania

Departments of Transportation and Environmental

Resources contradicted an earlier holding of the Third Cir-

cuit that the consent decree bound the entire Common-

wealth and its officers, agents, and employees (id. at

3The court concluded that legislation enacted by the Common-

wealth’s legislature in 1983, Act of May 4, 1983, Act No. 3, 75 Pa. Cons.

Stat. Ann. $ 4706(b) (Purdon Supp. 1985), which permits the estab-

lishment of an I/ M system only when required to comply with federal

law and to avoid the cut-off of federal funds—the situation in this

case—did not serve to validate the consent decree retroactively. The

court described the 1983 enactment as being “coerced by a Federal

Court Order, and delivered as ransom for the rescue of the citizens of

Pennsylvania from the considerable financial distress caused by the

withholding of million{s] of dollars in taxpayers’ funds ticketed for

Pennsylvania highways” (Pet. App. 40a-41a (footnote omitted)).

6

15a-16a). Thus, the court of appeals concluded that “the

ostensible relief” provided by the state court ruling “flies in

the face of settled law and the doctrine of res judicata” (id. at

17a). The court summarized its holding as follows (id. at 2la

(footnote omitted)):

Therefore, the case devolves to this. Only the federal

courts have the power to determine the authority of

federal court litigants, bringing suit under federal law,

to enter into consent decrees approved by a federal

court. The resolution of this dispute does not go to the

substantive merits of the controversy, but it goes

directly to basic jurisdictional powers of courts of

separate sovereignties. Accordingly, although the Penn-

sylvania Supreme Court’s discussion of state statutes

and especially its motor vehicle code is impressive and

erudite, jurisprudentially speaking, it is irrelevant to

the overarching question of the competency of a state

court to interfere with a final, federal court judgment

bottomed on federal law.

ARGUMENT

The court of appeals correctly concluded that the state

court lacked the power to entertain a challenge to a final

federal court decree entered pursuant to federal law. The

decision does not conflict with any decision of this Court or

any other court of appeals. Accordingly, further review by

this Court is not warranted.

1. The court of appeals correctly disposed of the issues

raised by petitioners when it recognized that “the Com-

monwealth could have litigated in 1978 in the federal court

issues presented before the state court in Scanlon” (Pet.

App. 20a-21a). Petitioners’ failure to do so precludes them,

under the doctrine of res judicata, from pursuing this

belated attempt to challenge a valid federal court decree. In

Kremer v. Chemical Construction Corp., 456 U.S. 461, 467

7

n.6 (1982), this Court noted the importance of the doctrine

of res judicata “in fulfilling the purpose for which civil

courts ha[ve] been established, the conclusive resolution of

disputes within their jurisdiction.”

Petitioners do not challenge the court of appeals’ conclu-

sion that they could have raised the issues they now seek to

litigate in the 1978 federal court proceedings, nor do they

offer any excuse for their failure to do so. Instead, petition-

ers’ sole response to this insurmountable barrier is that

“[rJes judicata must be raised in the District Court and may

not be raised by the parties on appeal” (Pet. 16). This

argument does not withstand scrutiny. It does not matter

whether res judicata is raised by a party in district court, or

in the court of appeals, or not at all, because of the clear

authority of a court, sua sponte, to raise the issue. As the

court stated in American Furniture Co. v. International

Accommodations Supply, 721 F.2d 478, 482 (Sth Cir.

1981):

In the posture of this case * * *, where all of the rele-

vant facts are contained in the record before us and all

are uncontroverted, we may not ignore their legal

effect, nor may we decline to consider the application

of controlling rules of law to dispositive facts, simply

because neither party has seen fit to invite our attention

to the issue by technically correct and exact pleadings.

We do so sua sponte.

See also W.E. Hedger Transp. Corp. v. Ira S. Bushey &

Sons, Inc., 186 F.2d 236, 237 (2d Cir. 1951). In this case,

petitioners “can claim no surprise or prejudice” (American

Furniture Co., 721 F.2d at 482) from the fact that the court

of appeals treated the preexisting federal decree as res judi-

cata. All parties and the state court were well aware of the

8

existence of a final judgment.‘ Petitioners, therefore, can-

not be heard to complain of injustice simply because the

court of appeals articulated the obvious. See Los Angeles

Branch NAACP v. Los Angeles Unified School Dist., 750

F.2d 731, 745 (9th Cir. 1984) (en banc):

There is no manifest injustive in denying plaintiffs

the opportunity to relitigate a part of aclaim when they

had a previous opportunity to do so but elected against

it.

For this reason alone, the judgment of the court of appeals

was correct and should be left undisturbed.

2. The bar of res judicata is not the only obstacle to

petitioners’ reliance on state law to escape their federal

obligations. First, the state supreme court disregarded deci-

sions of this Court as well as its own courts holding that,

under the Full Faith and Credit Clause of the Constitution

(Art. IV, $ 1), state courts are not free to disregard the

judgments of federal courts. See, e.g., Stoll v. Gottlieb, 305

U.S. 165, 170 (1938); Embry v. Palmer, 107 U.S. 3, 10

(1883); Bardo v. Commonwealth, 40 Pa. Commw. 585, 587

n.1, 397 A.2d 1305, 1307 n.1 (1979). As this Court stated in

Donovan v. City of Dallas, 377 U.S. 408, 412 (1964) (foot-

note omitted):

‘In Scanlon, the Supreme Court of Pennsylvania described the fed-

eral actions as follows: “[W]ithout adjudication of any of the issues

raised, the actions were concluded by the entry of a consent decree

agreed to by counsel for the parties to the lawsuits” (Pet. App. 29a

(footnote omitted)). If the state court meant to suggest that such a

decree is something less than a judgment of a court issued after the

parties have fully litigated their differences, it was in error. See, e.g.,

Nevada v. United States, 463 U.S. 110 (1983); A.D. Juilliard & Co. v.

Johnson, 166 F. Supp. 577, 585(S.D.N.Y. 1957), aff'd, 259 F.2d 837 (2d

Cir. 1958), cert. denied, 359 U.S. 942 (1959). “[A] consent judgment ‘is

as conclusive and final as to any matter determined as one rendered in

invitum after contest and trial. And such a judgment cannot be

impeached collaterally in another proceeding.’ ” Nash County Bd. of

Educ. v. Biltmore Co., 640 F.2d 484, 487 (4th Cir. 1981) (citation

omitted).

9

Early in the history of our country a general rule

was established that state and federal courts would not

interfere with or try to restrain each other’s proceed-

ings.

It was wholly inappropriate for the state court to interject

itself into these federal proceedings and .o declare the fed-

eral decree “a nullity.” Moreover, as the court of appeals

noted (Pet. App. 23a n.6), there need be no concern over the

prospect of future interference by the state courts. The

Anti-Injunction Act, 28 U.S.C. 2283, ensures that petition-

ers need not be put in the awkward situation of attempting

to comply with conflicting court orders.°

Second, the federal interest in the subject matter of this

litigation is clearly paramount to the concerns of the state

supreme court. Because of the clear, congressionally-

established mandate to achieve compliance with the ambient

air quality standards required under the Clean Air Act,

there was no reason in this case for the federal courts to

defer to the state supreme court on any inconsistent inter-

pretation of .he long-standing consent decree duly entered

in federal court. The decision of the state court, issued so

late in this protracted dispute, “stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52,

67 (1941) (footnote omitted). Moreover, Congress clearly

contemplated the cooperation of the states with the federal

‘The action of the state supreme court in this matter is quite similar to

the situation before this Court in Washington v. Washington State

Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979).

There, the Washington Supreme Court had held that state agencies

could not comply with a duly entered federal court injunction. This

Court disagreed, holding that “{s]tate-law prohibition against com-

pliance with the District Court’s decree cannot survive the command of

the Supremacy Clause of the United States Constitution” (443 US. at

695). That holding is equally applicable here.

10

government in implementing the Clean Air Act. See 42

U.S.C. 7401(a)(3) and (4). The decision of the state supreme

court fails to take into account the overriding federal inter-

est in ensuring compliance with the requirements of the

Clean Air Act as expressed through the Commonwealth’s

state implementation plan and a valid consent decree signed

by the Commonwealth’s representatives. As this Court held

in Sola Electric Co. v. Jefferson Electric Co.,317 U.S. 173,

176 (1942) (citations omitted):

It is familiar doctrine that the prohibition of a fed-

eral statute may not be set at naught, or its benefits

denied, by state statutes or state common law rules.

* * * [T]he doctrine of [Erie R.R. v. Tompkins, 304

U.S. 64 (1938)], is inapplicable to those areas of judi-

cial decision within which the policy of the law is so

dominated by the sweep of federal statutes that legal

regulations which they affect must be deemed gov-

erned by federal law having its source in those statutes

rather than by local law. When a federal statute con-

demns an act as unlawful, the extent and nature of the

legal consequences of the condemnation, though left

by the statute to judicial determination, are neverthe-

less federal questions, the answers to which are to be

derived from the statute and the federal policy which it

has adopted. To the federal statute and policy, conflict-

ing state law and policy must yield.

3. Petitioners argue (Pet. 14-15) that the decision of the

court of appeals conflicts with the decisions of two other

federal courts that have held that federal consent decrees

must be vacated when in conflict with state law. But the two

cases relied on by petitioners, Washington v. Penwell, 700

F.2d 570 (9th Cir. 1983), and West v. Bank of Commerce &

Trusts, 167 F.2d 664 (4th Cir. 1948), simply restate the rule

that “an attorney at law has no authority, without his

client’s permission, to compromise his client’s claim” ( West,

11

167 F.2d at 666). In Penwell, the court of appeals noted that

“(t]he named defendants in this lawsuit were the state offi-

cials, not the state” (700 F.2d at 573 n.3). Thus, the decree in

Penwell had the effect of binding a non-party, thereby

creating “an impermissible constitutional confrontation

between the federal court and the state legislature” (700

F.2d at 574). No similar concern is present in the instant

case.

Much earlier in this litigation, the court of appeals con-

clusively held that the Commonwealth was a party to the

litigation, that it had been properly represented by the

Pennsylvania Department of Justice throughout the litiga-

tion, and that it was bound by the federal consent decree.

Delaware Valley Citizens’ Council for Clean Air v. Penn-

sylvania, 678 F.2d 470, 475-476 (3d Cir.), cert. denied, 459

U.S. 969 (1982). Clearly, a federal court can make its own

determination as to those parties properly before it. The

state supreme court, in rejecting the prior holding of the

Third Circuit, was simply wrong on the facts as well as the

law. Contrary to the state court’s assertion (Pet. App. 29a-

30a n.5), the Commonwealth was and always has been a

named defendant in this litigation, with authority to bind

the entire Commonwealth. Thus, “even if the executive

branch defendants were physically or legally incapable of

complying with the decree, those Commonwealth officials

sitting in the General Assembly certainly are not incapable

of insuring the Commonwealth’s compliance” (678 F.2d at

475-476 (footnote omitted)). Similarly, as noted in the dis-

senting opinion of Justice Zappala, “regardless of the intra-

governmental processes necessary to comply, the Com-

monwealth itself, not just the agencies of the executive, but

the entire state government, became bound by the consent

decree” (Pet. App. 48a). There is therefore no warrant to

disturb the lower courts’ refusal to vacate the consent

decree.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

F. HENRY HABICHT II

Assistant Attorney General

PETER R. STEENLAND, JR.

JACQUES B. GELIN

Maria A. IIZUKA

Attorneys

JUNE 1985

DOJ-1985-06