# Petition for Writ of Certiorari — Sun Pipe Line Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1523%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1055 ## Text 87-1567 [ ssnonn ELLE D No. MAR 21 1988 IN Tilt JOSEPH &. SPANIOL, CLERK SUPREME COURT OF THE UNI October Term. 19S7 SUN PIPE LINE COMPANY. Petitioner t. ENVIRONMENTAL PROTECTION AGENCY. Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ~ Kenneth Scott, Esq. *Bruce J. Chasan, Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER 1811 Chestnut Street Philadelphia, PA 19103 (215) 563-5600 Attorneys for Petitioner Sun Pipe Line Company * Counsel of Record PACKARD PRESS LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000 QUESTIONS PRESENTED 1. Whether, on a “motion for reconsideration” under Fed- eral Rule of Civil Procedure 59(e), the failure of the United States District Court to allow an amendment to the complaint pursuant to Federal Rule of Civil Procedure 15, in the absence of prejudice to the defendant, was an abuse of discretion? 2. Whether the District Court had jurisdiction to judicially review the action of the Environmental Protection Agency in denying permission under 40 C.F.R. §§2.401 et seq. to Sun Pipe Line Company to videotape a deposition of an agency employee for use in a case in which the United States is not a party? 3. Whether, under the circumstances, the action of the Environmental Protection Agency in denying permission under 40 C.F.R. §§2.041 et seg. to Sun Pipe Line Company to videotape a deposition of an agency employee was invalid because it was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law? THE PARTIES Plaintiff, petitioner herein, is Sun Pipe Line Company (“SPL”). SPL is incorporated under the law of Pennsylvania and has its principal office in Tulsa, Oklahoma. It owns and operates petroleum pipelines in numerous states, and it transports both refined petroleum products and crude oil. It is presently an indirectly-owned subsidiary of Sun Company, Inc. through a holding company, Sun Pipe Line Company of Delaware. Defendant, respondent herein, is the Environmental Pro- tection Agency, an agency of the United States government. RULE 28.1 LISTING SUN PIPE LINE COMPANY AND SUBSIDIARIES AND AFFILIATES HOLDING COMPANY SUN PIPE LINE COMPANY OF DELAWARE 100% OWNED COMPANIES Sun Pipe Line Company: Eastern Area Mid-Continent Area Southwest Area Mid-Continent Pipe Line Company Sun Oil Line Company of Michigan Sun Pipe Line Services Co. JOINT VENTURES Explorer Pipeline Company Inland Corporation Mid-Valley Pipeline Company Maumee Section West Texas Gulf Pipe Line Company UNDIVIDED INTEREST High Island Pipeline System Jay Field Mesa Pipe Line PARENT COMPANY AND ADDITIONAI Adamantech, Inc. Alliance Enterprise Corporation Helios Capital Corporation Helios Service Company Puerto Rico Sun Oil Company Radnor Corporation Sun Carriers, Inc. Sun Company, Inc. (Parent Company il . AFFILIATES Sun Company Information Systems, Inc. Sun-Del Services, Inc. Sun Distributors, Inc. Sunedco Coal Company Sun Exploration and Production Company Sun Exploration and Production Company of Pennsylvania, Inc. Sun Gas Liquids, Inc. Sun Gas Terminals and Storage (PA), Inc. Sun Gas Transmission Company, Inc. Sun Geothermal Company Sun Marine Terminals, Inc. Sunoco Credit Corporation Sunoco Energy Development Co. Sun Oil Trading Company Sun Refining and Marketing Company Sun Shale Oil Company Sun Ship, Inc. Sun Tech, Inc. The Claymont Investment Company White River Shale Oil Company Yabucoa Sun Oil Company, Inc. TABLE OF CONTENTS QUESTIONS PRESENTED «0.2 ccc sic ca ce ccecaces ee RI rok oo Oe C0 eek enh Ree eas woeeee. JF og 30.3), Se paegueeaeatee s a, EO GTR ha e n e ce ne cao nen ee ee tees UMNO 13s cs hunt yadda bay ead keds STATUTORY PROVISIONS INVOLVED.............. STATEMENT OF THE CASE.................0-00-. A. Factual Background, The Underlying Litigation. . B. Sun Pipe Line Company's Request To E.P.A. ... C. Proceedings In U.S. District Court ............ DD. Proceedings In The Court of Appeals ...... REASONS FOR GRANTING THE WRIT............. IN ITS EVALUATION OF SPL’S “MOTION FOR RECONSIDERATION,” THE FAILURE OF THE TRIAL COURT TO ALLOW AN AMENDMENT TO THE COMPLAINT PURSUANT TO RULE 15, ABSENT PREJUDICE TO E.P.A.. WAS AN Ae Ce EPS IRIEN Cocks necks ascsneeaes THE DISTRICT COURT HAD JURISDICTION TO JUDICIALLY REVIEW AGENCY ACTION TAKEN PURSUANT TO AGENCY REGULA- TIONS WHEN THE ACTION WAS ALLEGED BY PETITIONER TO BE ARBITRARY, CAPRI- CIOUS AND AN ABUSE OF DISCRETION .... TABLE OF CONTENTS— Continued) Page Il. WHETHER THE E.P.A. ACTION WAS ARBI- TRARY, CAPRICIOUS, AN ABUSE OF DISCRE- TION, OR OTHERWISE NOT IN) ACCOR- DANCE WITH LAW, WITHIN THE MEANING OF THE APA, IS A QUESTION WHICH NEEDS TO BE RESOLVED IN AN APPROPRIATE HEARING AT THE DISTRICT COURT LEVEL. — 16 bee Rk Pee Pernt ty Par A ky: 1S APPENDIX Opinion, Appeal of Sun Pipe Line Company, 831 F.2d 22 Order Denying Petition For Rehearing (Nov. 20, 1987).. A-9 Order of Justice Byron R. White dated February 11, 1988 Extending Time To File Petition For Writ of Certio- - rari To and Including March 21, 1988 .............. 4-10 DEANU SOc ck vcnatnvssekes asareevedae tne 4-1] DESC. FA 6 cs 0 ins p eeacene eee A-]] S U.S. Ga. occas etn ceanceeeiel eeeee A-1] S 0.5.0... Fee. 62s ies nedeasar chee A-11-12 BB UGA. QR s ok hove ene ccdekes eee ee A-1]2 FEDERAL RULES OF CIVIL PROCEDURE .......... A-12 Re DIO ne cia pc Uew nena ene pee eee A-]2 ehe TE on. kev ccehesastgreee eee A-12 ett CD ois cco se kctegidheseie eee A-13 Public Information; Testimony by Employees and Produc- tion of Documents in Civil Legal Proceedings, 40 C.F.R. Part 2, Subpart C, 50 Fed. Reg. 32386 (Aug. 9, TABLE OF CONTENTS— Continued Page Sun Pipe Line Companys Requests For Admissions To Plaintiffs (February 20, 1987) And Answers Thereto, Hudachek v . Sun Company, Inc., et al., No. S4-01115- 11-2 (excerpts and Attachments “B™ and “C” A-2] Letter, Butler Buchanan, IIL, Esq. to Donnell L. Nantkes, Esq.. Environmental Protection Agency, April 3, 1987 A-29 Application For Issuance of Order Requiring the United States Environmental Protection Agency To Produce Dr. Thomas Spittler To Testify By Videotape Deposi- tion, MBD #57-315 (D. Mass.), filed April 29. 19ST . A-31 Letter, Patrick A. Parenteau, Regional Counsel. Environ- mental Protection Agency. to Butler Buchanan. UI. Esq.. April 29. 1987 AH Transcript of Hearing before Hon. Walter J. Skinner, U.S District Judge, Boston, Massachusetts, April 30, 1987 A-35 Motion For Reconsideration Of Order Denving The Peti- tion of Sun Pipe Line Company To Require The Environmental Protection Agency To Produce Dr Thomas Spittler For A Videotape Deposition, and Affidavit, IBD #S7-315. filed May 6, 1987 4-39 Memorandum Of Law In Support Of Motion For Recon- sideration, MBD #87-315, filed May 6, 1987 AH Order Denving Motion For Reconsideration, \IBD #S87- 31S Nav S. LOST . AD tw ‘1 TABLE OF AUTHORITIES Cases. Page Appeal of Sun Pipe Line Company, $31 F.2d 22 (1st Cir. ee rear ey per em erry ye Passim Califano v. Sanders, 430 U.S. 99 (1976) ... (apaavan ae Chrysler Corp. cv. Brown, 441 U.S. 282 (1979) ....... 13, 14 Cipriani, et al. v. Sun Pipe Line Company, et al.. No. §3-03557-11-2 (Bucks Co. C.C.P.).. 2.2... 0.000005. 3, 4 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 PP ae eae pee em ee 14. 16 Concerned Residents of Buck Hill Falls v. Grant, 337 F.2d SL I cs dade rtneueeLounas eens oae 14. 15 Conley v. Gibson, 355 U.S. 41 (1957)... 2.0... . § 11, 18 Davis Enterprises, Sun Pipe Line Company. et al. t United States Environmental Protection Agency. No. SPL, Ess coe cccutchucesetsccues ya Dunlop v. Bachowski, 421 U.S. 560 (1975)............. WA Foman v. Davis, 371 U.S. 175 (1962) ..... 7, 5,9, 10. 11, 12 Giza v. Secretary of Health, Education and Welfare. 628 F.2d 748 (Ist Cir. 1980) ................... 6.5.9 Hudachek, et al. cv. Sun Company, Inc., et al.. No. §$4-01113-11-2 (Bucks Co. C.C.P.) .............. 3, 4.5 Kiser v. General Electric Corp., $31 F.2d 423 (3d Cir. Rey ee eer erry oe 11, 12 Kozak vc. Struth, _. Pa. __, 331 A.2d 420 (1987) .... 5 Lerman v. Chuckleberry Publishing, Inc., 521 F.Supp. 225 fe APP errr rer rr rer yer ye ll Local 1219, American Federation of Government Em- ployees v. Donavan, 683 F.2d 511 (D.C. Cir. PP istvaddakeadgguecsnasentbeseegundvuye 13. 14. 15 Morris ct. Gressette, 432 U.S. 491 (1977)... 0... . vil TABLE OF AU THORITIES— Continued ( ases Pave Rennekamp cv. Blair, 376 Pa. 620, 101 A.2d 669 (1954 . Re ynolds Vii tals ( ompany t (row ther 572 7 Supp 285 1D. Mass. 1983 6.9 Sacks v. Reynolds Securities. In 593 F.2d 1234 (Dt Cir. 1975 1] Sanders v. Clemco Industries, 823 F.2d 214 (Sth Cir. 1987 12 Service t. Dulles. 354 U.S. 363 (1957 13. 14 Sheehan t. Army and Air Force Exchange Service. 619 F 2d 1132 (Sth Cir. 1980). reversed on other grounds 556 U.S. 728 (1982 13. 14, 15 Sweeney vt. Keystone Provident Insurance Company 575 F.Supp. 31 (D.Mass. 1953 10 l'nited States 1 Belanger. 598 F Supp. 595 (D.Me L9S4 l] (United States v. Hougham, 364 U.S. 310 (1960 10 United States v. Springer, 491 F.2d 239 (9th Cir. 1974 1} rite d Sfates ey rel Touhy Re van 440) | S 162 195] % Wong Wing Hang v. Immigration and Naturalization Services HO |} Id 715 (2d Cir. 1966 16 STAIt TES AND REGULATIONS Federal Rule of Civil Procedure 15 7.9 Federal Rule of Civil Procedure lia z, S ii, 12 Federal Rule of Civil Procedure 15id 2. 1] Federal Rule of Civil Procedure 59% - 4,9, hd Federal Rules of Evidence 5 grat > 30] 14 TABLE OF AUTHORITIES— Continued) STATUTES AND REGULATIONS Page Pe asl vueee das hier eA aee ea sew es I ny iss ce bub isiecsoseovescsns esses l4 PRED Sabacccaesecrysassnewcag tia sacs ss l4 Lf TD sh ee ere e Rawr Teer re we at Rk eo, | erie ee ere eee 2, 15, 16 ER” | ER ore porn er neg rr ee 2 a ie ae nd ea rere ose 05s 2. 7, 13, 5 of pe EAA eer eorre ery err rr err ry ey 2 40 C.F.R. Part 2, Subpart C §§2.401-2.406 .. 2, 6, 12. 13, 14 Administrative Procedure Act................. 7. 14, 15, 16 Freedom of Information Act........0.0.0.0.0000000 0.00005. 6,17 ee a a err ey ren ore y) ee | kA. rE Pree Tee eee ee 8.9 5s _) SP erre rTP ET Tae eee ere 2 OTHER AUTHORITIES $.Rep. No. 752, 79th Cong., Ist Sess. (1945)... ......... l4 50 Fed. Reg. 32386 et seq. (August 9, 1985).......... 12, 13 United States Constitution, Full Faith and Credit SNS ts Fre Pas e ER ERTS eRe TS LET CORE SA TTS 6 No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1987 SUN PIPE LINE COMPANY, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Sun Pipe Line Company respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. OPINIONS BELOW The opinions pertinent to this Petition are the April 30, 1987 bench ruling of the United States District Court for the District of Massachusetts (A-35 to A-38), the May 8, 1987 Order of the district court denying the “motion for reconsideration” (A-52), and the October 16, 1987 Opinion of the United States Court of Appeals for the First Circuit, 831 F.2d 22 (1st Cir. 1987) (A-1 to A-8). JURISDICTION fhe judgment of the Court of Appeals for the First Circuit vas entered on October 16, 1987. A Petition For Rehearing Before Original Panel And Rehearing In Banc was filed on October 30, 1987 and denied on November 20, 1987 (A-9 By Order dated February 11, 1988, Justice White extended the time to file a Petition for Writ of Certiorari to and including March 21, 1988S (4-10 he Supre me Court has jurisdiction to review the judgment ow pursuant to 28 U.S.C. §§1254 (1) and 2101 (c), and Sup Ct. R. 20.4 STATUTORY PROVISIONS INVOLVED The following pertinent statutes are set forth in the Appen- > U.S.C. §§$701(a), 702, 706(2A), and 28 U.S.C. $1331 \-11 to A-12 the following pertinent Federal Rules of Civil Procedure ire set forth in the Appendix: Federal Rules of Civil Procedure Isa), Lid), and 59(e) (A-12 to A-13 The following pertinent regulations are set forth in th Appendix: 40 C.F.R. Part 2, Subpart C, §§2.401-2.406 (A-16 to 4 -() STATEMENT OF THE CASE 4. Factual Background, The Underlying Litigation Sun Pipe Line Company (SPL) is the owner and operator of an underground petroleum pipeline which runs from Marcus Hook, PA to Newark, NJ. The pipeline was punctured by a cabl: television contractor on November 12, 1982, in Newtown Bucks County, PA, resulting in a net loss of approximate! 50,000 gallons of unleaded gasoline into the ground. In subs« quent months, gasoline vapors entered the basements of number of homes in an adjacent housing development known «: Newtown Crossing. On or about May 15, 1983, the case of Pier Cipriani, et a/ v. Sun Pipe Line Company, et al., No. $3-03557-11-2, was filed in the Court of Common Pleas for Bucks County. The Cipriani case is a class action with nine families named as _ plaintiffs Among other things, the complaint alleges property damage and various adverse health effects suffered by the homeowners in Newtown Crossing. The theories of liability alleged against SPI include strict liability and negligence. Beginning in February 1954, numerous cases were filed by “opt-out” plaintiffs in the Court of Common Pleas for Bucks County, including Joseph Hudachek, et al. v. Sun Company Inc., et al., No. 84-01113-11-2, and several others. Sun Pipe Line Company, which is a subsidiary of Sun Company, Inc., is also a defendant in the opt-out cases. These suits are similar the Cipriani action in that the plaintiffs are alleging propert damage and adverse health effects as a result of the pipelin accident. : In April 1983, before the homeowners suits were filed, the U.S. Environmental Protection Agency ("E.P.A.~) was invited by the Pennsylvania Department of Health to do air monitorin: in numerous homes in Newtown Crossing. The monitoring aros: out of requests by certain homeowners to the Pennsylvania Department of Health to have an independent agency do testing to obtain unbiased results regarding the levels of hydrocarbons 4 present in their homes. On April 6 and 7, 1983. Dr. Thomas Spittler Ph.D.. of the U.S. E.P.A. Region I Laboratory. did ai 4 monitoring with a portable gas chromatrography machine and Tenax tubes in six homes in Newtown Crossing, and he also sampled the ambient air outside the homes. The homes at which Dr. Spittler did his air sampling were owned by three families who are claimants in the Cipriani class action case and three opt-out families, including the Hudacheks. The air monitoring tests done by E.P.A. in Newtown Crossing were requested by Mr. Gary Schultz of the Pennsyl- vania Department of Health, and the results were reported by E.P.A. to Mr. Schultz (A-24 to A-28). E.P.A. did not do the testing pursuant to any regulatory program it was then enforc- ing. However, the Centers for Disease Control, the Pennsylva- nia Department of Health, and the Bucks County Department of Health used the E.P.A. data (and data obtained by the industrial hygiene firm hired by SPL) to develop health criteria regarding exposure to gasoline vapors. On February 21, 1985, the Court of Common Pleas certi- fied the class in the Cipriani action as to common issues of fact on liability, but it held that each plaintiff would have to prove damages individually. The certified class consists of 200 home- owners. In September and October, 1986, the liability trial was held in the Cipriani action. SPL and four other co-defendants were held by the jury to be causally negligent for the pipeline accident under comparative negligence principles. ! Subsequent to the jury verdict on liability, trial preparation began in earnest on the homeowners damage claims. Two cases in particular, the Melso claim (class action plaintiffs), and the Hudachek claim (opt-out plaintiffs), were designated by the trial judge as the first two claims to be tried. In pre-trial discovery, SPL served requests for admissions to the Hudachek and Melso plaintiffs to admit the authenticity 1. SPL was held 18% liable. The contractor who punctured the pipeline, Tri-State Telecommunications, Inc., was held 40% liable; the cable television company, Davis Enterprises, was held 13% liable; the township engineer, Jan Gouza, and his firm, Pickering, Corts and Summerson, Inc., were held 15% liable: and the firm which drew the maps omitting the pipeline, E.A. Design, Ltd., was held 14% liable. and truth of the reported results obtained by E.P.A.’s Dr. Spittler. Both the Hudachek and Melso plaintiffs refused to admit the truth of the E.P.A. results without having an oppor- tunity to cross-examine the chemist who did the work (Dr. Spittler) (A-21 to A-28). B. Sun Pipe Line Company's Request To E.P.A. In January and again in April 1987, the Hudachek trial was scheduled for May 11, 1987.2 On April 3, 1987, soon after receipt of plaintiffs answers to the requests for admissions, counsel for SPL wrote to the E.P.A. General Counsel in Washington, D.C. to request permission to videotape a depo- sition of Dr. Spittler (A-29). The circumstances behind the request were briefly explained in the letter.® The E.P.A. General Counsel's office referred SPL’s request to the Regional Counsel's office in Boston. In the meantime, on April 23, 1987, SPL obtained a commission from the court in Bucks County to take an out-of-state deposition of Dr. Spittler. Counsel for SPL desired one videotape deposition of Dr. Spittler at which all interested plaintiffs) counsel could be present. In this manner, counsel for SPL expected that Dr. Spittler would need to testify only once for a period of 1 to 2 hours. On April 28, 1987, counsel for SPL issued a Notice of Deposition to ‘Dr. Spittler and served copies of same to the attorneys of record in the Pennsylvania cases. 2. Subsequently, on May 6, 1987, the state court postponed the trial date to allow completion of additional discovery. 3. In order for expert witnesses in Pennsylvania courts to render opinion testimony on the hazards of exposure to gasoline vapors, the testimony must be based on the witness's personal knowledge, uncontradicted facts in evidence. or an assumed state of facts reasonably shown by the record. Kozak v. Struth. __Pa. __ , 531 A.2d 420, 422 (1987). Pennsylvania courts do not follow the Federal Rules of Evidence on expert testimony. Kozak v. Struth, supra, 531 A.2d at 423. Ifa party does not prove the facts which go into the hypothetical question framed to the expert witness, the opinion is based on unproved assumptions and is therefore worthless guess and conjecture. Rennekamp Blair, 376 Pa. 620, 101 A.2d 669, 672-3 (1954). Thus, if SPL. does not prove the E.P.A. results, its expert witnesses will not be able to rely on the E.P.A. data as a basis for their opinions. Kozak v. Struth, supra, 3531 A.2d at 422-3 6 There were several telephone calls in April 1987 between counsel for SPL and the E.P.A. Regional Counsel's office attempting to arrange the deposition, but no agency decision was made until after SPL’s petition was filed in the U.S. District Court in Boston on April 29, 1987 (A-31 to A-33). The Regional Counsel, relying on E.P.A. regulations, 40 C.F.R. Part 2, Subpart C, §§2.401 et seq., sent a letter that date refusing SPL’s request (A-34). C. Proceedings In U.S. District Court E.P.A. prepared a brief opposing SPL's petition. A hearing was held before Hon. Walter Jay Skinner, U.S.D.J., on April 30, 1987. The court, relying on Giza v. Secretary of Health, Education and Welfare, 628 F.2d 7458 (1st Cir. 1980), denied SPL's petition but indicated it might entertain a “motion for reconsideration’ if authority was provided (A-38). Giza had held that the federal courts could not compel testimony by F.D.A. employees pursuant to a state court subpoena on the basis of the Freedom of Information Act, mandamus jurisdiction, comity, or the Full Faith and Credit Clause of the Constitution. On May 6, 1987, SPL filed a “motion for reconsideration’ together with an affidavit by counsel, a memorandum of law, and several exhibits (A-39 to A-51). SPL alleged that Giza, supra, is distinguishable, and that E.P.A.’s refusal to permit Dr. Spittler to testify by videotape deposition was arbitrary and capricious agency action subject to judicial review (A-40). SPL cited dictum in Reynolds Metals Company vt. Crowther, 572 F.Supp. 288, 291 (D. Mass. 1983) (The narrow basis of this court’s decision [refusing to enforce a subpoena for testimony by two O.S.H.A. employees| clearly does not preclude appropriate judicial supervision of a department's exercise of discretion to prohibit testimony by its emplovees. ) (A-40, A-45). On May $8, 1987, the court entered the following order on SPL’s “motion for reconsideration: “DENIED. The Reynolds Metals case cited by petitioner confirms the prior denial of the petition. 5/8/87 W. J. Skinner, USDJ.” (A-52). All proceedings were concluded in less than 10 days. D. Proceedings In The Court of Appeals In the appeal to the First Circuit, the parties briefed and argued to questions: (1) Was there jurisdiction in the district court to judicially review action of the E.P.A. taken under agency regulations? (2) If so, was the agency action arbitrary, capricious or an abuse of discretion within the meaning of the Administrative Procedure Act (APA)? The E.P.A.'s brief framed its “Issues Presented” in substantially the same terms stated by SPL in its “Questions Presented.” On October 16, 1987, the court of appeals rendered its judgment and opinion holding that Fed. R. Civ. P. 59(e) was the appropriate standard for judging SPL’s “motion for reconsidera- tion, and that the trial judge did not abuse his discretion in denying the motion. Appeal of Sun Pipe Line Company, 531 F.2d 22, 24-5 (Ist Cir. 1987) (A-5). The court held that it need not resolve the question of whether the district court had jurisdiction to review the agency action complained of. Id. at 24 (A-4). The E.P.A. at no time had argued that SPL’s appeal should be denied for failure to show an abuse of discretion on the part of the trial judge in denying SPL’s “motion for reconsideration. E.P.A. was content to argue that it should win the case because the agency action complained of was committed to agency discretion by law, and therefore there was no jurisdiction under 28 U.S.C. §1331 and the APA. Moreover, E.P.A. never argued that it was in any way prejudiced by the new claim asserted by SPL in the “motion for reconsideration.” SPL’s petition for rehearing contended that the “motion for reconsideration was in substance a motion to vacate the judg- ment and amend the complaint which should have been allowed pursuant to Fed. R. Civ. P. 15. Foman v. Davis, 371 U.S. 175, 1$2 (1962). The precise question presented was this: “Whether, on a motion for reconsideration’ under Rule 59(e), the failure of the trial court to allow an amendment to the complaint pursuant to Rule 15, in the absence of prejudice to the defendant, was an abuse of discretion?” The petition for rehearing was denied without explanation on November 20, 1987 (A-9). REASONS FOR GRANTING THE WRIT Summary. Normally federal agencies have authority to restrict testimony by their employees when they are subpoe- naed to testify in private litigation. United States ex rel. Touhy vt. Regan, 340 U.S. 462 (1951); Giza v. Secretary of Health, Education & Welfare, 628 F.2d 748 (Ist Cir. 1980). However, when a federal agency has regulations establishing criteria which govern when it will allow testimony by its emplovees in private litigation, there is no reason why agency action in applying those regulations should be exempt from judicial review pursuant to 28 U.S.C. §1331 and the APA. This case presents a novel application of settled principles of law concerning judicial review and it has the potential to limit the doctrine of Touhy v. Regan, supra. It is an important question of federal law which should be settled by this Court. Sup. Ct. R. 17. 1(c). Whether or not the E.P.A. action in this case was arbitrary, capricious or an abuse of discretion within the meaning of the APA, 5 U.S.C. $706(2)(A), is certainly important to SPL, but we recognize that the decision on this issue should most likely be made at the district court level following remand, assuming this Court agrees that SPL’s “motion for reconsideration” stated a valid claim for relief. The threshold issue is whether the district court and court of appeals properly applied the Federal Rules of Civil Procedure in denving SPL’s “motion for reconsideration.” It is well-settled that the Federal Rules of Civil Procedure should be construed so as to do substantial justice, Conley v. Gibson, 355 U.S. 41, 48 (1957), and cases should be decided on their merits, not technicalities. Whatever its label, SPL’s “motion for reconside- ration” was in reality a motion to vacate the judgment and amend the complaint, and it should have been allowed pursuant to F. R. Civ. P. 15(a). Foman v. Davis, supra. It was an abuse of discretion not to allow SPL to amend its complaint. Id. The decisions of the district court and the court of appeals were such departures from the usual course of judicial proceedings so as to call tor the exercise of this Court's power of supervision, and said Y decisions were also in direct conflict with applicable decisions of this Court. Sup. Ct. R. 17.1(a), (ce). I. IN ITS EVALUATION OF SPL’S “MOTION FOR RE- CONSIDERATION,” THE FAILURE OF THE TRIAL COURT TO ALLOW AN AMENDMENT TO THE COM- PLAINT PURSUANT TO RULE 15, ABSENT PREJU- DICE TO E.P.A., WAS AN ABUSE OF DISCRETION. At the April 30, 1987 hearing on SPL’s original petition, the district court (Judge Skinner) citing Giza, supra, made clear his view that SPL had produced no authority to compel the deposition of Dr. Spittler (A-37). The colloquy between the court and SPL’s counsel (Mr. Glovsky) shows that counsel made an oral motion for leave to file an amended pleading which would include authority for the requested relief. The court appeared to grant such leave, though it suggested filing a “motion for reconsideration. (A-38). On May 6, 1987, SPL filed its “motion for reconsideration” (A-39). The motion complained that “the action of the E.P.A. Regional Counsel in refusing to permit the videotape deposition [per the letter dated April 29, 1987]” was arbitrary and capri- cious agency action subject to judicial review (A-40). The court dismissed SPL’s “motion for reconsideration” within 48 hours with a terse opinion: “DENIED. The Reynolds Metals case cited by petitioner confirms the prior denial of the petition.” (A-52). Drawing reasonable inferences, it appears that the trial judge did not believe he was being turnished with any authority new and distinguishable from Giza, supra. It is not clear how he evaluated SPL’s motion under Rule 59(e), whether he recog- nized that a new claim was being made, or whether he evaluated the motion pursuant to Rule 15. But if the court had construed the “motion for reconside- ration” as a motion to vacate the judginent in order to allow an amended complaint, then it should have been allowed. Foman t. Davis, 371 U.S. 178, 182 (1962). In the case cited, involving a will contest between a decedent's daughter and his second wife, the district court dismissed plaintiff's complaint to enforce | ) ' ‘ , , yt | : ’ { rT ' it ; i) ? | ' _ f eis ' ' t tin ‘ , , i, ' \ ; ’ ’ j ; ry [ [ 7 ‘ | } ‘ tic '4 ' ’ >. ’ ‘ | | “ap a . , ‘ ; ; ; ‘ ; ‘ | | t i tiie) , ' . , | { I ; ’ ’ ’ | | { 7 , ‘ , ; ’ bint r [ eid ' . . ~ ' ‘ . ' s _ ’ ~*~ ’ | } ‘ | ; cj rr} ’ rt ’ ‘ ' , foc ,? ; ' ; 4 ‘ t tery tivg 7 > yanror r\ i ’ Ff HK ‘ ’ " .. % \ ; ' i SPI ‘ : boas p ‘ — cot teeth : ‘ ‘ } | ; ‘ ‘ ’ ‘ tT} | tT | ; . , " ' ; ew «¢ gent \} | Tot. ; . rre i o« '? ; 4 ; . : tp) pit iti Va nied new ( f t Aad | I \ I , ’ , ’ ’ j os - _ : nieadit } srathvecor ‘ ' ie? 4 el ' rye f tf . ! | | } ’ rhe rivil ; ca i! Le > j Rigi ; j ul j 7 ——. ‘ . " } " ') ; . ’ ; ‘ . ~ ‘ 5 ) ‘5 | | = ’ -— on . " : ’ " : } - +?) | " " " | ers ; iy rw) , +7 st Pie ty» gee ’ ‘ ’ ; ; . ; : - wyr ' ‘ Phy, ; ; Piyy =) ' | ; ; 7 ; ; ; ; ‘ ith +} ; ; ; ; ’ ; ; ‘ } " ) " ; ‘ ‘ G n. 355 U.S. 41. 48 (195 | ect t pm ; ; +} it phe Tel ; ; 4 | ; i ; ; ; ;% . ’ : ; ’ ’ ’ ’ rive ‘+ ry, . ’ * ‘ vl ’ , , 4 Phys er Sa rf ‘ Rew Sy j ; j ys } a ‘ , | ty »? + Hye loredct feng ' sat ; 42:3 ; | ; ; -) , ’ ’ A as to cure SPI Id. Nor were there any rep ated failure! s cle hcvencies by amendments pre viously allowed ld The First Circuit sought to justifv its holding by citing SPL's “lassitude” in delaving its request to E.P.A. for Dh We dispute this characterization. but assuming arguendo that SPL could have Spittler S deposition S31 B.2d at 26 (A-7 been more diligent this “delav’ was not of the tvpe which results in untai pre juclice to the adverse party in litigation E.P.A.). See Sanders v. Clemco Industries, 823 F.2d 214, 216-7 Sth Cir. 1987) (district court abused its discretion in not allowing amendment to complaint pursuant to Rule 15(a) in absence of showing of untair prejudice to defendant due to delay); Kiser v. General Electric Corp., supra at 428 (same). In this case, E.P.A. could not show prejudice to itself if. an unendment had been allowed to SPL s original application Indeed, E.P.A. never invoked any procedural or technical objection, but instew sought to have this controversy resolved on its merits I. THE DISTRICT COURT HAD JURISDICTION TO JU- DICIALLY REVIEW AGENCY ACTION TAKEN PUR- SUANT TO AGENCY REGULATIONS WHEN THE AC- TION WAS ALLEGED BY PETITIONER TO BE ARBITRARY, CAPRICIOUS AND AN ABUSE OF DIS- CRETION., The E.P.A. has regulations governing the extent to which semplovees may testifs in private lawsuits. 40 C.F. R. §§2.40] er. Se q SO) be dl Ke Vv 32356 August 9 iYSS \-14 to A-20 These regulations are clearly not a blanket proscription of \ s K..P.A emplovee testimony in privat lawsuits. As the avencys said nn the pre amble to the re vulations We recognize that there are situations were EPA should cooperate with Federal, State or local authorities as part ol the Agency s joint re sponsibility for de veloping and enfore ing environmental standards and other policies. This regu lation does not pre lude such activities. and numerous EPA thie ] ils ire’ ¢ Mipowe ré dl to authorize Ste rr te Stimony 50 Fed. Reg. 32386. Further, in explaining the © evils” which the agency expected would be avoided by the regulations, the summary to the preamble stated as follows The intended effect of this regulation is to ensure that EPA employees time is spent on EPA business and to avoid the appearance that EPA is taking sides in private litigation ld., 50 Fed. Reg. 32386. See 40 C.F.R. §2.401(c), 50 Fed. Reg at 32387, incorporating these and other criteria into the regula tion (A-1S E.P.A. must clearly exercise discretion in deciding when it will permit its emplovees to testify in private lawsuits, but the agency s discretion in doing so is limited by the criteria set forth in the above-referenced regulations. It is well-settled that each federal agency is bound by its own regulations. Service Dulles, 354 U.S. 363, 372, 388 (1957) (discharge of foreign service officer held invalid due to failure of State Department to abide by agenev regulations). As this Court said in Service Dulles While it is of course true that under the MeCarran Rideo the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards neither was he prohibited from doing so, as we have already held, and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them Id., 354 U.S. at 388 Federal judicial review of agency actions in applying federal law is available under 28 U.S.C. $1331. Califano v. Sanders, 430 U.S. 99, 104-107 (1976); Chrysler Corp. v. Brown, 441 U.S 282, 317 (1979): Sheehan vt. Army and Air Force Exchange Service, 619 F.2d 1132, 1139 (Sth Cir. 1980), reversed on othe grounds, 456 U.S. 728 (1982). Jurisdiction under $1331 is also available for judicial review of agency action taken pursuant to agency regulations. Local 1219, American Federation of Gort ernment Employees tv. Donovan, 683 F.2d 511, 515-516 (D.C I4 Cir. 1982); Sheehan v. Army and Air Force Exchange Service, 619 F.2d at 1139. Of course, the availability of judicial review is subject to two exceptions. i.e. where “statutes preclude judicial review,” and where “agency action is committed to agency discretion by law.” 5 U.S.C. §701(a) (1), (2); Chrysler Corp. v. Brown, supra at 317. The latter exception applies only “where statutes are drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971), quoting $.Rep. No. 752, 79th Cong., Ist Sess., 26 (1945). Federal courts should not interpret a statute or regulation to confer unreviewable power to an administrative agency in the absence of a persuasive reason to believe that such was the purpose of Congress. Morris v. Gressette, 432 U.S. 491, 500-501 (1977); Dunlop v. Bachowski, 421 U.S. 560, 564 and n.5 (1975). In the present case, there is no statute precluding judicial ~ review. Also, the E.P.A. regulations are not drawn so broadly that it may be held as a matter of law that “agency action is committed to agency discretion by law.” Definite standards for considering requests for testimony by agency employees are set forth in the regulations themselves, e.g. 40 C.F.R. §2.401(c), and in the preamble to the regulations. Since there is law to apply, and since there is no evidence that Congress intended E.P.A.’s exercise of discretion to be unreviewable, judicial review should clearly be available. This court must decide whether the E.P.A. regulations themselves set forth sufficient standards which limit the agency s discretion, thereby affording judicial review under the APA.+ It is submitted that the agency regulations clearly provide “judi- cially discernible limits.” and judicial review is therefore avail- able. Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 4. To the extent the First Circuit relied on the broad discretion conferred in the “housekeeping statute,” 5 U.S.C. $301, see $31 F.2d at 25 (A-5), such reliance was misplaced. The agency action complained of in this case was ostensibly taken pursuant to agency regulations, not the “housekeeping statute.” Accordingly, this court must look to the agency regulations. Service vr Dulles, supra 15 29, 35-36 (3d Cir. 1976); Local 1219, American Federation of Government Employees v. Donovan, supra at 515-6. In sum, the district court had jurisdiction under 28 U.S.C. §1331 and the APA. As was said in Sheehan v. Army and Air Force Exchange Service, supra, there is subject matter jurisdic- tion to decide this controversy, “and authority to award nonmon- etary compensation flows from the confluence of 28 U.S.C. §$1331(a) and 5 U.S.C. §702.” Id., 619 F.2d at 1141. The two statutes together provide a waiver of sovereign immunity “for actions against federal government agencies, seeking nonmone- tary relief, if the agency conduct is otherwise subject to judicial review.” Id., 619 F.2d at 1139. [We add parenthetically that almost identical litigation is pending in the U.S. District Court for the Eastern District of Peunsylvania, Davis Enterprises, Sun Pipe Line Company, et al. vu. U.S. Environmental Protection Agency, No. 87-5315. Plain- tiffs in the Davis Enterprises case seek a videotape deposition of a second E.P.A. employee who works in Philadelphia and who was also involved in the air monitoring at the Newtown Crossing homes, including dates Dr. Spittler was not present. The case has been submitted to the district court in Philadelphia on cross-motions for summary judgment (filed January 15, 1985) and a stipulation of facts. The parties expect the district court to decide the jurisdictional claim, i.e., whether judicial review is available, and, if so, whether the E.P.A.’s conduct in refusing permission for a deposition of an agency employee was in violation of the APA, 5 U.S.C. §706(2)(A). When a decision is rendered, it will be furnished to this Court. | lb Il. WHETHER THE E.P.A. ACTION WAS ARBITRARY, : CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTH ERWISE NOT IN) ACCORDANCE WITH LAW, WITHIN THE MEANING OF THE APA, IS A QUES TION WHICH NEEDS TO BE RESOLVED IN AN APPROPRIATE HEARING AT THE DISTRICT COURT LEVEL. ludicial review under 5 U.S¢ STOGI2NA) to determin whether agenev action was “arbitrary” or “capricious requires the trial court to “consider whether the decision was based on a consideration of the relevant factors and whether there has been iclear error of judgment.” Citizens to Preserve Overton Park 1 Volpe 1Ol U.S. 402, 416 (1971 The standard of review for abuse of discretion” is similar but not identical. E.g.. an abuse t discretion occurs when an wWeneys departs from established policies. Wong Wing Hang v. Immigration & Naturalization Service, 360 F.2d 715, 719 (2d Cir. 1966), cited in Citizens to Preserve Overton Park v. Volpe, supra at 416 In its “motion tor reconsideration, SPL alleged that the KE. P.As refusal to permit a videotape deposition of Dr. Spittler was arbitrary, capricious and an abuse of discretion because his testimony would further the public interest and could not be misconstrued as taking sides in private litigation (A-40). SPI ileged that E.P.A. misapplied the criteria in its regulations. Id \ memorandum of law expanded upon these allegations \-44 to \-51). In particular, SPL pointed out that the air monitoring results obtained by Dr. Spittler were not available from any ther witness, that the evidence was relevant, and that D1 Spittler would be testifving only as to what compounds were tound and in what concentrations, not whether the levels were sale or TON The trial courts terse denial of the “motion tor reconside tion gave no clue as to whether the court engaged in any tnalvsis pursuant to the APA, 5 U.S-¢ STO6(2 A). On the ntrarv, the inference must be that the court did no such thing ne courts ruling implied that the court did not believe it Was | ) , ) } cing presented with any new authority for the reque sted reliet 17 The First Circuit engaged in an analysis of SPL’s new claim for the liwited purpose of evaluating whether the district court abused its discretion under Rule 59(e), pertaining to motions for reconsideration. 831 F.2d at 25 (A-6). The court of appeals thereby supplied a rationale for sustaining the district court's | denial of the “motion for reconsideration’ when there is no evidence that the district court itself had such a rationale. In particular, the court of appeals chastised SPL for attach- ing certain addenda to its appeliate brief. 831 F.2d at 25 (A-6). This referred to the fact that after the district court had denied the “motion for reconsideration,” SPI> made a Freedom Of Information Act request to E.P.A. for all documents evidencing decisions by the agency since August 1985 wherein the agency allowed testimony by its employees in litigation in which the United States was not a party. The documents furnished by PA) showed numerous occasions where employee testimony was permitted in private litigation because it was relevant and despite no discernible agency interest. In bringing these in- stances to the attention of the First Circuit, SPL’s appellate brief stated at p.23, n. 16: We recognize that these materials were not before the District Judge in this case, but we do not expect E.P.A. to complain about citations to its own decisions and prece- dents which are matters of public record. However, if this Court deems it improper to consider these materials on appeal, it would still be appropriate to remand this case to the trial court for a hearing at which Addenda “B™ through BB could be introduced into evidence. E.P.A., in its brief to the First Circuit, did not object to the precedents on grounds that they were not before the district court. Instead, the agency sought to distinguish several of the cases and it argued that other decisions should not be applied as precedents. The First Circuit's chastisement of SPL on this matter underscores the fact that the court fastened onto perceived procedural deficiencies and did everything it could to avoid 1S deciding the case on the merits. In doing so, the court subverted the purposes of the Federal Rules of Civil Procedure. SPL's allegations in the “motion for reconsideration” called for a hearing of some kind. It is well-settled that a claim should not be dismissed unless the plaintiff can prove no set of facts which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-6 (1957). CONCLUSION For the foregoing reasons, the petition for a writ of certio- rari should be granted. Respectfully submitted, Kenneth Scott, Esq. Bruce J]. Chasan, Esq. WILSON, ELSER, MOSKOWITZ, I; DELMAN & DICKER 1811 Chestnut Street Philadelphia, PA 19103 215) 563-5600 Attorneys for Petitioner Sun Pipe Line Company March 21, 1988 APPENDIX United States Court of Appeals For the First Circuit No. 87-1529 APPLICATION FOR ISSUANCE OF ORDER REQUIRING THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY TO PRODUCE DR. THOMAS SPITTLER TO TESTIFY BY VIDEOTAPE DEPOSITION SUN PIPE LINE COMPANY, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS (Hon. Walter Jay Skinner, U.S. District Judge! Before Campbell, Chief Judge, Garth,* Senior Circuit Judge, and Selya, Circuit Judge. Bruce ]. Chasan with whom Kenneth Scott, Wilson, Elser, Moskowitz, Edelman & Dicker, Richard D. Glovsky and Steven T. Sager were on brief for appellant. - Charles J. Sheehan, Department of Justice, Land and Natural Resources Division, with whom Martin W. Matzen, Department of Justice, Land and Natural Resources Division, Thomas E.. Hookano, Acting Assistant Attorney General, Robert S. Mueller, United States Attorney, and Francis S. Blake, General Counsel, Environmental Protection Agency, were on brief for appellee Environmental Protection Agency. * Of the Third Circuit, sitting bv designation \-] October 16, 1987 SELYA, Circuit Judge. This chameleon of a case comes before us in a considerably different posture than it originally assumed in the district court. Thus, we recount the factual predicate and evolution of the litigation with exacting care preliminary to our explanation of why we affirm the district court. In November 1982, a gasoline pipeline near Newtown, Pennsylvania was accidentally punctured and a large quantity of fuel — perhaps as much as 100,000 gallons — escaped. Under- ground seepage and the spread of noxious fumes followed. In April 1983, a state agency, the Pennsylvania Department of Health, asked a federal official, Dr. Thomas Spittler,! to conduct air monitoring in the vicinity of the ruptured pipeline. He did so and reported the results to state health officials. The next month, the oil leak spilled over into the local courts. Homeowners filed a class action suit against Sun Pipe Line Co. (Sun), appellant before us, claiming property damage and various adverse health effects. Several other related civil cases were subsequently filed. The state court eventually certi- fied the class, bifurcated the class action suit, and tried the liability phase. A jury found Sun negligent. The court then designated representative plaintiffs and scheduled trial of their damage claims. In discovery which Sun initiated only after the liability verdict was in, it sought an admission of the truth and authenticity of Dr. Spittlers test results. But, the claimants refused. 1. Dr. Spittler was then, and apparently still is, Chief, Technical Support Branch. Environmental Services Division, Region I Laboratory of the federal Environmental Protection Agency (EPA). Region I is |. adquartered in Massachusetts, thus explaining the appellant's choice of venue A-3 Little daunted, Sun then requested the EPA to allow Dr. Spittler to star in a videotaped deposition. The Pennsylvania court authorized the taking of the deposition, but never issued a subpoena or otherwise commanded the witness's appearance. Nevertheless, the appellant noticed the deposition without any means of assuring the witness's attendance and sued in the United States District Court for the District of Massachusetts fo: an order compelling the EPA to produce Dr. Spittler.2 In the meantime, the agency spurned Sun's request, declining to deliver the witness. After hearing, the district judge rained on Sun's parade. He denied the application in an ore tenus bench decision, essen- tially on the ground that the district court lacked authority to compel a federal emplovee like Spittler, in his official capacity, to respond to a state court subpoena.’ Within a week, Sun abandoned its original theory of the case. It moved for recon- sideration, focusing not on the production of Dr. Spittler’s body, but on the propriety of EPA’s administrative refusal to allow the deposition. In this motion, Sun argued for the first time that the agency action should be set aside as arbitrary and capricious. The district court abjured reconsideration and this appeal ensued. Appellant's current theory of the case is grounded upon twin premises: (1) that EPA’s decision not to permit Dr. Spittler to testify is subject to judicial oversight; and (2) that such scrutiny, if undertaken, will demonstrate the irrationality of the agency s action. The first of these premises implicates the coverage of the judicial review provisions of the Administrative 2. The sole relief praved for in the complaint was “an order requiring the Environmental Protection Agency to produce Dr. Thomas Spittler for a videotaped deposition.” The complaint was never amended 3. The district court, in so ruling, relied principally upon our decision in Giza v. Seeretary of HEW. 628 F.2d 748, 751-52 (Ist Cir. 1980). Given the gravamen of the appellant's case as it then stood, Giza was clearly controlling. See generally United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951 ~ f wi Phy al ; ; have hese nittecd ¢ - C- " : | i\\ ) I ‘5 { wall i yA iy iti Tan ' } : ’ ‘ Vrnethe rive ive'l » cies ) iT} 7 ' - i) i) rT ; ir? ity ’ il | its il il \f ’ . iv | ‘% ; res eed ft vs vdare c] ) ) ; $2.403 Procedures when voluntary testimony is requested ' \ re LL st tor testimon ' in} | PA ip ere cle . } ’ ~ 102] must De vrit ine st tute the ture ny tive : ‘ ls +; . 1 ¢} | +} ; ; } sues t*sStll ) i | cus \T if LeSTLTTNIOT oO) , ’ ‘ tive ] t¢ e*st | | | \ ‘5 | ré ] ests Te riveree cliate | ’ ] ] } ] | tive ( rer ( i si ris tf SIvie ’ } tive is¢ | ' ' ip wees. 1 tive Othe | | spectol ( ¥¢ T«l tiv I} Sp t | ' ' ' ' (,enera r ty 1 Ulla itty tive re Th endation ot tive ' ' ' ) ) e*e pel ] ) in ( v¢ ian { ) 7 i] cle siv’ q*¢ ; ity ; vith tive ipprol ricate \ wa ; Ac TT sty if . ft emp! vees in the Othe t Inspector Ge ! the Inspector Ceneral ' his designe deter nes whetthrye iplia ce with thre request W wuld clear| ec } the interests t EPA and ’ sponds is 8) is pract | ‘ $2.404 Procedures when an employee is subpoenaed. ’ ] } i) 4 Opes ot subpoenas mus immediate iv i nt to tl ' , , ( o¢ era C Wset OF his cle sivnec with the recommendations rT ' ' ’ . . : th emi vee S$ SsUDeTVISOrS | vw (.,eneral Co S4 r his desig | ' ee, in consultation with the ippropriate Assistant Administra . . , tor, Regional Administrator or Staff Office Director, determines ' ' , , ; , ' ' . vhether comphance with the subpoena would eal De mm the ] ! interests ol I PA ma re sponds iS SOO iS praficable 1 ' ' ' ' ' . b it the Lene ra ( 1 \é rhs designee denies ippl ) } ’ lv with ¢] | Hy #] \ OT ip with the s1 pan i vroithe thas wted \ he return , , , ’ , } } late, the emplovec st appear at the stated time and plac ? } , miess vdivised ry\ the ( 54 eral ( preTy Se r fis 1 signee that the | } ] } } ’ ' . ppoet i was tf Vall issued or served or that the subpoena | } i ] J ? 7 | ; } as tere yitharaw! prod ‘ i 1. hese re? Mmwons al 1? , } re spect iv retuse | pl cle i esti r produce i ; ‘ + low mments. U nite Stat ey ] shit Raw MOUS 162 ) The atorementioned cases are scheduled tor trial on Miav LL. LYS) G) The Environmental Protection Agency has not indicated whether or not Dr. Spittler will honor petitioner s request On April 23, 19ST, a commission was issued out of the Court of Common Pleas of Bucks County, Pennsvivania. autho rizing Sun Pipe Line Company to take the ce position of Dh Dhomas Spittler Ph.D... Director. U.S. E.P.A.. Re gion | Labo ratory, 60 Westview Street. Lexington, MA 02173 (copy of commission is attached and labelled Exhibit ¢ been served a CODV IS ittached ‘ \ deposition note has und leabve le d | xhibit 1) WHEREFORI wales requiring the I duce Dr. Thomas Spitth r tor a videotaped de posit 10-00 (o¢ lock 1. Thi ctl Wedne sda Via tr) | jx ~ it ; Chics s oof Richard 1) (Cslovsk 5 | \filk Street s t Boston NPA O98 109 SUN PIPI LINE COMI Petiti By Its Attorn LAW OFFICES OF RICH CLOVSKY e ‘ K i ‘ K lal LD. | t \] rk ST 5 ‘ i MIA - 19 - , . } i | b | he ( nirt © Agen oe tithonet pravs that t | > nvironmental Protection \! \-34 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION | I Fo. KENNEDY FEDERAL BUILDING BOSTON. MASSACHUSETTS 02203 April 29, 1987 Mr. Butler Buchanan, III Wilson, Elser & Morkowitz Edelman & Dicker IS11 Chestnut Street Philadelphia, PA 19103 Re: Request for Deposition of Dr. Thomas Spittle: Dear Mr. Buchanan This letter is in re ponse to your letter, dated April 3. 19ST, to Donnell Nantkes, Office of General Counsel requesting the deposition of Dr. Thomas Spittler, an employee in the Environmental Services Division, Region I. U.S Environmental Protection Agency \ request ot this nature is governed by the regulation found at 40 (_F_R.. Part 2. Subpart C. The purpose of these regulations is to assure that EPA emplovees official time is used for official purposes Pursuant to 40 C.F.R. §2.403, EPA emplovees may testify in private litigation only under circumstances where the Regional Counsel determines that compliance with such a request would clearly be in the interest of EPA Unfortunately, after consultation with Mr. Spittler's supervisor and_ the Regional Administrator, | have determined that your request is not clearly in the interest of EPA Accordingls your request is hereby denied Should vou have any questions with re spect to this matter please contact lames T. Owens. IL. Senior Assistant Regional Counsel at (617) 565-3325 Sincerely s Pat Pas Patrick A. Parenteau Ke gional ¢ unsel 1) onell Nantke ()¢,¢ Richard Glovsky. Esq s] Milk Street Boston, MA 02109 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS IN RE: APPLICATION FOR ISSUANCE OF ORDER > MBD No. 87-315 REGARDING ENVIRONMEN- TAL PROTECTION AGENCY BEFORE THE HONORABLE WALTER JAY SKINNER United States District Judge Courtroom 6 U.S.P.O. & Courthouse Boston, Massachusetts April 30, 1987 APPEARANCES For the EPA: ANDREW S. HOGELAND, ESO. Assistant U.S. Attornes 1107 USPO & Courthouse Boston, MA 02109 For the Sun Pipeline Company: RICHARD GLOVSKY, ESQ. 31 Milk Street Boston, MA 02109 DEBORAH MEEKS, Official Court Reporter, U.S. District Court, 204 USPO & Courthouse, Boston, MA 02109, (617) 338-8439, Computer-aided Transcription PROCEEDINGS [2:25 p.m. | THE CLERK: MBD $7-315, In Re Application for Issuance of Order Regarding the U.S. Environmental Protection Agency. THE COURT: See you at the side bar. AT THE BENCH VIR. GLOVSkY: Richard Glovsky. I present Sun Pipeline. VIR. HOGELAND: Andrew Hogeland representing the EPA. To trv to keep it short, if we can, it’s the Government's view that the area is controlled by Giza v. Secretary of HEW. A copy of that is attached to the brief we filed about an hour ago. We just got notice of the action THE COURT: [ve read it. VIR. HOGELAND: Briefly, Giza makes it clear that the Federal Court does not have authority to enforce even a state court subpoena if it’s issued. In this case, there's been no subpoena issued nor apparently, either, one applied for. THE COURT: I thought there was a subpoena issued in Pennsylvania? MR. HOGELAND: No, There’s a notice of deposition filed and there's a commission issued to a court reporter to appear authorizing the court reporter to take the deposition. THE COURT: A subpoena out of the District Court in Pennsylvania would have no effect up here? MIR. HOGELAND: Well, It—two answers. First, it doesn't have an effect here because there's no authority for this Court to enforce it. There may be matters .» state court where the Massachusetts state court would enforce the Pennsylvania state court subpoena if there was one. But there isn t, so we think it should be denied THE COURT: Certainly the Federal Court has the author- ity to enforce a deposition where the Witness is. VIR. HOGELAND: Well, if the case is pending in another Federal District Court and the subpoena issues out there, they apply to this Court that issues a pursuant order, that's correct The way it appears, though, is a state court who hasnt even issued al subpoena THE COURT: Was it in the state court MIR. HOGELAND.: It still is. And the Giza First Circuit case is the same. In fact, that was a Massachusetts state court case and the Court of Appeals upheld a denial of the District Court s entorcement THE COURT; You sav vou ve attached that? MR. HOGELAND.: Yes. It's here. And that's been followed by Judge Keeton in another opinion I have MR. GLOVSKY: That case has no bearing in this context THE COURT: What do vou sav about the Giza case? MR. GLOVSKY: I think it's contradicted, vour Honor, by the EPA’S own regulations that sav vou have to come to Federal Court to support a subpoena. And those regulations are also attached. If your Honor please, we're THE COURT: You mean these here? MR. GLOVSKY: Yes, its—in fact. I have a copy tor the Court. Your Honor, we re only asking for the testimony that will go for one hour and we'll do it at his convenience, wherever THE COURT: Well, Td help vou if I had the authority to do it. But the First Circuit seems to think that I don't have the authority to do it MR. GLOVSKY: They re saving there's no subpoena. In that case, your Honor, we could get a subpoena and we'd be right back here tomorrow THE COURT: I don't think that’s the issue. See. this regulation says that employees are prohibited from complying with the requests for production tor subpoenas and to appeal outside of matters that are not within the EPA. but that’s not vou want this man because MR. GLOVSKY: Because he went down to Pennsvivania to, as an EPA emplovee THE ( MOURT So | don t sce how Vou how does this help vou at all? VIR. GLOVSKY: Well. I think it suggests that vou have to come to Federal Court if vou re going to « ompel the testimony THE COURT: But it also suggests that if vou do come to Federal Court. vou're not voing to get it MR. GLOVSKY: Well, the regs provide that the avency can permit the testimony if they feel in their discretion it's appro priate THE COURT: Well. | cant order them to ex reise thei: discretion NIK iH \IK NIK Vik \ (ZLOVSAY: W Ki HOCkELAND (,TLOOVNSAY 1} HOGELAND f“¢)i VIK. GLOVSAY: We I tl K il rea il fashioned mandamu PH COURT: tit ret il it s discretionary. And if t i tional ilmost hyvpothesi if not subiect ¢ lamu Mandamus is rese ed for iinisterial act VIR. GLOVSKY: Well this situation, Judge, we re or iS} I e | ! 1 thi al tire | think that suite THE COURT: I w the hour if 1 had the thor But | ead thi i iVvindg | lor t ha e the wathority and. therefore. I have to advice vith regret that MR. GLOVKSY: Mav I do this, Judge, because I just received these papers? If I ca ache wait se sesthanats iv i ie back to see the ¢ rt thi THE COURT: Well, | , , W iething. vou ought to ha ir authorit MR. GLOVSKY: I thought we did in the regulat THE COURT: Well. vou're wrong VIR. GLOVSRY: [1 it always right rHE COURT: | think the best thing t b { it. Be i f t cos I moK f ‘ ' re @ t fet Ve! lar witli muir petitw Vik. GLOVSKY: Can I have a dav to review the case rHE COURT: Well, if i want to move for reconsidera VIR. HOGELAND: Thank Vik. GLOVSKY: Thanh hud iHik CLERA: It t in t bHk COURT: It t in ) f , A-39 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS APPLICATION FOR ISSUANCE | OR ORDER REQUIRING THE ~ UNITED STATES ENVIRONMEN- | TAL PROTECTION AGENCY TO — MBD#57-315 PRODUCE DR. THOMAS . SPITTLER TO TESTIFY BY VIDEOTAPE DEPOSITION MOTION FOR RECONSIDERATION OF ORDER DENY- ING THE PETITION OF SUN PIPE LINE COMPANY TO REQUIRE THE ENVIRONMENTAL PROTECTION AGENCY TO PRODUCE DR. THOMAS SPITTLER FOR A VIDEOTAPE DEPOSITION Petitioner, Sun Pipe Line Company (“SPL”), by its attor- neys, the law offices of Richard D. Glovsky, and Wilson, Elser, Moskowitz, Edelman & Dicker, hereby moves for reconsidera- tion of this Court's Order of April 30, 1987, denying petitioner's application for an order requiring the Environmental Protection Agency (EPA) to produce Dr. Thomas Spittler to testify by videotape deposition. In support of this Motion for Reconsider- ition, petitioner avers as follows: |. All averments in SPL’s original application filed on , April 29. 1987 are realleged and incorporated herein by rt te rer’ 2 The EPA filed its opposition to SPL’s original pplication on April 30, 1987. s. At the hearing before this Honorable Court on April 1). 19ST. the court sustained EPA‘s position mainly on the withority of Giza v. Secretary of HEW, 625 F.2d 748 (1st Cir. 1980). See copy of transcript attached hereto. \-40 $. Petitioner believes the holding of Giza v. Secretary of HEW, supra, is inapposite in the factual circumstances here, and desires to present further argument distinguish- ing it. 5. Petitioner would characterize this proceeding as an action for judicial review of agency action which it contends is arbitrary, capricious and an abuse of discretion. In particular, the action of the EPA Regional Counsel in refusing to permit the videotape deposition of Dr. Thomas Spittler is the agency action complained of. 6. This court has authority to review a federal agency s exercise of discretion in refusing to permit deposition testimony by an agency emplovee. Reynolds Metals Com- pany t. Crowther, 572 F.Supp. 258, 291 (D. Mass. 1983). 7. The action of the EPA Regional Counsel in refusing to permit Dr. Spittler’s videotape deposition was an abuse of discretion because (1) such testimony by Dr. Spittler would indeed further the public interest, as it) would pertain to matters closely connected with EPA business, and (2) such testimony, in the circumstances here, cannot be misconstrued as taking sides in. private litigation. For these reasons, which will be expanded upon in the attached Memorandum of Law, it is clear that the EPA Regional Counsel abused his discretion in applying the criteria of 40 C.F.R. §$2.401 et seg.. 50 Fed. Reg. 32387 (August 9, 1983). \-4] WHEREFORE, it is respectfully prayed that this Honor- able Court will reverse its prior ruling and order the EPA Regional Counsel to permit the videotape deposition. Law Offices of Richard D. Glovsky | Richard D. Glovsky 31 Milk Street, Suite S10 Boston, MA 02109 617) 423-7100 By: S Richard D. Glov sky and WILSON, ELSER, MOSKOWITZ EDELMAN & DICKER By: s/ Bruce J. Chasan Kenneth Scott Bruce J. Chasan Butler Buchanan, II] IS11 Chestnut Street Philadelphia, PA 19103 215) 563-5600 \-42 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS APPLICATION FOR ISSUANCE OF ORDER REQUIRING THE UNITED STATES ENVIRONMEN- PAL PROTECTION AGENCY TO MBD #87-315 PRODUCE DR. THOMAS SPITTLER TO TESTIFY BY VID- KOTAPKE DEPOSTTION AFFIDAVIT OF COUNSEL FOR SUN PIPE LINE COMPANY City of Philadelphia Commonwealth of Pennsvlvania BRUCE J. CHASAN, being duly sworn, deposes and says as tollows |. | am the attorney of the record for Sun Pipe Line Company. a Pennsylvania corporation, in numerous cases presently pending in the Court of Common Pleas for Bucks County, PA > 2. All factual averments in the attached Motion For Reconsideration Of Order Denying The Petition Of Sun Pipe Line Company To Require The Environmental Pro- tection Agency To Produce Dr. Thomas Spittler For A Videotape Deposition, and all factual averments in the A-43 accompanying memorandum of law in support thereof, are true and correct to the best of my knowledge, information and belief. s/_ Bruce J. Chasan BRUCE J. CHASAN SWORN TO AND SUBSCRIBED BEFORE ME THIS 4th DAY OF MAY, 1987. s/ Veronica A. Love-Myers NOTARY PUBLIC VERONICA A. LOVE-MYERS Notary Public, Phila., Phila. Co. My Commission Expires Oct. 29, 1990 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS APPLICATION FOR ISSUANCE OF ORDER REQUIRING THE UNITED STATES ENVIRONMEN- TAL PROTECTION AGENCY > MBD #87-3158 TO PRODUCE DR. THOMAS SPITTLER TO TESTIFY BY VIDEO- TAPE DEPOSTTION MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR RECONSIDERATION OF ORDER DENYING THE PETITION OF SUN PIPE LINE COMPANY TO REQUIRE THE ENVIRONMENTAL PROTECTION AGENCY TO PRODUCE DR. THOMAS SPITTLER FOR A VIDEOTAPE DEPOSITION INTRODUCTION The Environmental Protection Agency (EPA) has regula- tions governing the extent to which its employees may testify in private lawsuits. 40 C.F.R. $§2.401 ef seq 50 Fed Reg. 32356 August 9. 1985). These regulations are clearly not a blanket proscription of EPA employee testimony in private lawsuits. As the agency said in the preamble to the regulations We recognize that there are situations where EPA should cooperate with Federal, State or local authorities as part of the Agency's joint responsibility for developing and enforcing environmental standards and other policies. This regulation does not preclude such activities. and numerous EPA officials are empowered to authorize such testimony 7) 50 Fed. Reg. 32386. Further. in explaining the “evils” which the iWency expected would he avoided hy the regulations. the eamble stated as tollows A-45 The intended effect of this regulation is to ensure that EPA employees time is spent on EPA business and to avoid the appearance that EPA is taking sides in private litigation. Id., 50 Fed. Reg. 32386. See also, 40 C.F.R. §2.401(c), 50 Fed. Reg. at 32387. Clearly EPA must exercise discretion in deciding when it will permit its employees to testify in private lawsuits, and that discretion is clearly subject to judicial review. Reynolds Metals Company v. Crowther, 572 F.Supp. 288, 291 (D. Mass. 1983) (“The narrow basis of this court's decision clearly does not preclude appropriate judicial supervision of a department's exercise of discretion to prohibit testimony by its emplovees. ”) Under the facts presented in this matter, it is clear that the EPA became involved in the aftermath of the Newtown, PA pipeline accident to develop valid data which could be used by state, local and federal authorities to develop health criteria. EPA itself was not concerned with setting any standards, and it did not do so. Dr.Spittler’s testimony is desired for the purpose of establishing the validity of certain measurements he made in 1983 in individual homes.! This is a mere extension of the work he did in 1983, and it clearly remains a matter of public interest. There is very little risk of any appearance that Dr. Spittler’s testimony will tend to favor one party or another. Furthermore, the time involved (an estimated 1 to 2 hours for a videotape deposition) is de minimus in light of the substantial manpower that EPA has already devoted to the air monitoring work it did in Newtown, PA. FACTUAL BACKGROUND SPL’s petroleum pipeline was punctured by a cable televi- sion contractor in Newtown Township, PA on November 12, 1982. Approximately 50,000 gallons of unleaded gasoline was 1. Dr. Spittler will not be asked to give opinions as to whether the levels he found were safe or toxic. The parties in the Pennsylvania litigation have industrial hygienists, toxicologists, and medical doctors to render those ivpes of expert opinions. However, Dr. Spittler's expertise as a chemist is relevant to show his competence to make valid, reliable measurements ‘ | the oy j Th) \ ' ! shoclan asnan vliacont | thy ite tothe , peapy tian - f slanne ThE entorime thei » then basement Th Vn PrETT Taal tes attribute various adverse health svmptoms to exposure Van ST lrivedl in) TITLE trial 1, Tei steowurt \ cual | | bears i| tart TL MLL LLL 1" i ‘ { me ré thy level f liavckeo ay locen final i THLE wv rete | , \farcl » TON 4 senet i 1} afte’ « TT) EPA‘s brief (at p. 7) seeks to support the Regional Counsel s action by citing opposition to disclosure of attorney-client priv- ileged communications, intra-agency deliberations, and opin- ions by experts conducting work for EPA for possible use in agency litigation. Plainly none of these concerns are implicated in this case. In addition, all of Dr. Spittler's results have already been disclosed. EPA cannot possibly have any interest in maintaining confidentiality of Dr. Spittler’s results.° 3. Agency Interest. It is certainly hoped that EPA does not take a purely parochial or narrow view in determining what its interests are. Often the interests of the agency and the interests of private litigants in the proper administration of justice are in harmony. The same public concerns which. in- duced EPA to do air monitoring in Newtown Crossing in 1983 will still be at work in the forthcoming jury trials between SPL (and its co-defendants) and various displaced homeowners. The jurors, in the proper administration of justice, will want to know if any independent, non-aligned agency did any air monitoring and if so, what were the results (if available and otherwise admissible). The jurors may or may not give more weight to the 5. SPL has also offered to reimburse EPA for Dr. Spittler’s time, but this offer has been discouraged 6. In United States ex rel. Touhy ve. Ragen, 340 U.S. 462 (1951), the Court upheld the Attorney Generals decision not to perimit disclosure. of agency documents. In the present case the documents are already universally wailable. Cf. Sweet vc. Schenk, 792 F.2d 1447, 1452 (9th Cir 1986) (Norris. | lisse ntimg ind distinguishing Pouly A-50 test results obtained by EPA (compared to those obtained by the industrial hygienists retained by SPL), but it certainly would not be surprising if they did. The EPA results may well enhance the jury's confidence in its verdict, whatever it is. It is unlikely that EPA’s image will be in any way tarnished or diminished by permitting Dr. Spittler to testify by videotape deposition. Indeed, permitting his testimony may well enhance the administration of justice. Certainly this is something “in the public interest,” with which EPA’s interests are not at all in conflict. On the contrary, EPA epitomizes a “public interest” governmental agency, and the citizens of the United States should be able to look to it for unbiased factual information concerning disputes about environmental matters. Even if one viewed EPA's interests narrowly, then the counters ailing interests referenced above will balance a not outweigh the narrow agency mitcrests A-51 CONCLUSION Consideration of all elements in 40 C.F.R. §§2.401 et seq. clearly shows that the EPA Regional Counsel failed to give appropriate weight to the factors which auger for allowing the deposition of Dr. Thomas Spittler. The action of the Regional Counsel was arbitrary, capicious, and an abuse of discretion. This court should order the Regional Counsel to permit the deposition. —_— Respectfully submitted, Law Offices of Richard D. Glovsky By: 8 Richard D. Glovsky Richard D. Glovsky 31 Milk Street, Suite SLO Boston, MA 02109 (617) 423-7100 and WILSON, ELSER, MOSKOWITZ. EDELMAN & DICKER By: s Bruce J. Chasan Kenneth Scott Bruce J. Chasan Butler Buchanan, HI ISLL Chestnut Street Philadelphia, PA 19103 (215) 563-5600 exhibits and certificate of service omitted] at —_ OO ————— A452 [Handwritten Order in margin of Motion For Reconsider- ation Of Order Denying The Petition Of Sun Pipe Line Com- pany To Require The Environmental Protection Agency To Produce Dr. Thomas Spittler For a Videotape Deposition }: DENIED. The Reynolds Metals case cited by petitioner confirms the prior denial of the petition. SST WYSkinner US.DJ. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1523%3A1. Public record. Not legal advice.