Petition for Writ of Certiorari — Fernandes v. Environmental Protection Agency

In The

Supreme Court of the United States

Nelson Fernandes,

Petitioner,

Vz.

EPA, Administrator of the EPA,

Regional Administrator for Region II,

Commissioner of NJDEP,

Rockaway Township Town Council,

Attorney General of the United States,

Respondents.

Petition for Writ of Certiorari

Nelson Fernandes, Pro-Se

9 Fox Run

Denville, N.J. 07834

(973) 627 — 2138

Questions Presented for Review

1. Did the panel abuse its discretion by denying petitioner’s

motion to recall the mandate on any of the issues presented.

Calderon v. Thompson, 118 S. Ct. 1489, 1498 (1998).

2. Petitioner’s appellate brief cited standards of review to

compel reading the complaint, accepting its allegations as true and

determining if the district court abused its discretion (Exh. M).

~ Does refusal to comply in the appeal and motion to neni deny

petitioner the right to be heard (denied due process) since his

complaint was dismissed for failure to state a claim, especially

after arguing the district court's failure to read the complaint (Exh.

N) and showing the allegations differed from its rulings. And does

that refusal plus the conduct outlined in the certification (Exh. Q)

prove extrajudicial bias. And do oversights violate the law argued

since they may be deliberate denials of due process.

3. Did the panel abuse its discretion or deny due process by

not vacating the August 95 order since it is void.

4. Did failure to disclose the fact that the allegations in the

complaint were unrelated to the panel’s basis for affirmation

amount to a fraud on the court or a denial of due process.

ee

Parties

The caption includes the names of all the parties

Table of Contents

Cees On LOU oo vise cnnseiseee ee l

ees Gr FIR ivccoktsccetassie eee 2

Constitutional Provisions and Statutes Involved.............. 3

Statement of the Case - Review for Abuse of Discretion ...3

Summary of the Grounds Given to Recall the Mandate......5

Authorities Cited in the Motion to Support BE céserecavm 7

Authorities Cited on Extrajudicial Bias by the Panel.........9

Fraud Upon Appellate Court or Due Process Violation ....11

The August 95 Order is Void in Three Ways................ 15

Refusal to Read Complaint Denied Due Process............ 18

Substantial Prejudice on State of Limitations Issue ........ 23

Grounds for the Accepting Certification as Proof of Bias..25

Recusal of the Panel and Judge Walls........................ 26

CCOMGIIIIOIII. ooo x vnunccscdescucecissiasenn eee 27

Table of Authorities

Cases:

Accord, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363,

DEG, B, 1 CAGFA) crcererecercevesecvsvcscsnsrevcerevssovosnvorveveventosernsoveqseososevereorvevees 37

Aerojet-General Corp. v. American Arbitration Assoc., 478 F.2d 248,

254 (Deh Cir.1973)..ccccerecccorerearersereeserecensecvescoverseresverervesecsecesesrssesssorerees 7

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986). .........ccscsceseeneeeneees 9

ALA Inc. v. CCAIR Inc., 29 F.3d 855 (C.A.3 1994) .......cccccceeseereeeeees 18

Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989).............200 11

Arizonal v. California, 460 U.S. at 618 1.8). .........ccccccsseeeeeesreeeeeeeeens 16

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) )......s:sessssssereeseeees 14, 24

Assoc. Gen. Cont. of Conn. Inc. v. New Haven, 41 F.3d 62 (2d

| | ee 6

Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1020 (3d. Cir. 1987) ).....12

Bandai America Inc. v. Bally Midway Mfg. Co., 775 F.2d 70 (3rd

CU DIEBD, cncecssnrveecneovesvvrererensevesveveqversonsoerunseseonvevesoveqvesesoveces sevousensseneeseee 7

Board of Trustees V. Centra, Inc., 983 F.2d 495, 504 (3d Cir. 1992).” .21

Brady v. Maryland, 373 U.S. 83, 86 . . (1963)........ssssssesesssnsrseseersseenes 13

Briggs v. Pa. R.R. Co., 334 U.S. 304, 306, 92 L. Ed. 1403 (1948).......... 7

Calderon v. Thompson, 118 S. Ct. 1489, 1498 (1998)...........00 2, 9, 25

Cardascia, 951 F.2d at 482)...........cccceeeees thn ada 4

Casamento, 887 F.2d at 1149-5S0............cssccsssserseeseeeeeeenseeseseseessneeens 4,21

Christionsom, 466 U.S. at 817). ...cccvsevsresecceccseessoresessoesneccoccsensseseenereeseuses 16

Cont. Casualty Co. v. Dominick D'andrea Inc., 150 F.3d 245

(3d Cle. 199G) cccecoseceoveccovescocussverecovenvesnevesoreveneeveresevsoreneoserecrovers 7, 18,24

Cook v. Peter Kiewit Sons Co., 775 F.2d 1030,

1037 & 1.13 (Dth.Cir. 1985) .........ccccccccccscorsrsersrcecsreereecersrencsssscsscersoees 21

Davis v. Bd. of Sch. Comm. of Mobile County, 517 F.2d 1044, 1051

(Sth Cir. 1975), cert. denied, 425 U.S. 944 (1976). .........:scsseceseeereeeees 9

Deutsch v. U.S., 67 F.3d 1080, 1083 (3d. Cir. 1995) ........::cccceeseeeeeeeens 17

Dilaura v. Power Auth., 982 F.2d 73 (2d.Cir. 1992) ).........:ccssceeseeeeeeees 16

Graham v. Johnson, No. 99-22014 (Sth Cir. 02/25/1999)..........:csccsseseee 2

Greater Boston TV Corp., 463 F.2d 268 (D.C. Cir.1971). ........:seceeseeees 8

Groden v. Random House Inc., 61 F.3d 1045 (2d Cir. 1995) ............00+++ 10

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) ........ 17

Gulf Oil Corp. v. Comm. of I.R.S., 914 F.2d 396 (3d.Cir. 1990) .......... 18

Haines v. Kerner, 404 U.S. 519, 520..........c0s:200+ 8, 14, 18, 19, 21, 23, 24

Hall v. Marion Sch. Dist. No.2, 31 F.3d 183 (4th Cir.1994)..............4. 10

Hazel-Atlas Glass Co. v. Hartford Empire Co.,

OER BS | 7

Hughes v. Rowe, 449 U.S. 5 (1980) ). ......-.scesssesesesensesrseseeseeesnensesneesees 20

Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) ............. 4

Table of Authoriti

Inter. Union UAW v. Mack Tr. Inc., 820 F.2d 91, 95 (3d.Cir.1987) .... 18

In re Crivello, 134 F.3d 831 (7th Cir. 1998) ...............ccssccssccssseccssssesesees 11

In re Intermagnetics America, Inc., 926 F.2d 912, 916 (9th Cir. 1991). 11

In re Murchison, 349 U.S. 133, 136 (1955) ..0......cceeeceseeeteeeteeeseeeeeeenees 10

lowa V. Illinois, 151 U.S. 238 (1894). ........0..00.... 8, 14, 15, 19, 20, 22, 23

Jason Aaron Boling v. Roy Romer, No.96-1115 (10th.Cir.1996) ......... 19

Johnson v. Bechtel Assoc. Pro., 801 F.2d 412, 416 (D.C.Cir. 1986). ....... 7

Leone v. Aetna Cas. & Surety Co., 599 F.2d 566, 567 (3 Cir.1979). ..23

Liteky v. U.S., 114 S. Ct. 1147, 1155 (1994)... eceeeeeeees 10, 26

Margoles v. Johns, 660 F.2d 291, 296 (7th Cir. 1981), cert. denied,

455 U.S. 909, 71 L. Ed. 2d 447, 102 S. Ct. 1256 (1982)... 10

Matter of Norton, 128 N.J. 520, 539 (1992)..........cccsccssseeserceseeeeeeeeenes 12

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ).........:cscceeeeee 13, 14,24

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 (1988.... 11

Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 314 (1950) ). .20

Newark Branch, N.A.A.C.P. v. Harrison, 907 F.2d 1408,

ee le IU cnchicenidnniiieicasasitaieicainidhienniessdiddidaasiteeonisninieiius 6,17

Nix v. Whiteside, 475 U.S. 157, 170 1.6 (1986) .............ccceeeeeeesteeeeeees 12

ol RE RR ee ee ene 10

Orndoff v. U.S.I.R.S., 26 F.3d 131 (9th.Cir.1994) ). oo ceeeeees 21

Oscar v. Univ. Students Co-op Assn., 965 F.2d 783, 785 (9th.Cir.) ..... 19

Parks v. Hargett, No. 98-7068 (10th. Cir.1999) oo... eeeceeseeeeeeneees 19

Pensiero v. Robert L. Lingle, 847 F.2d 90 (3d.Cir.1988) 0.00.00... 17

Perkins v. Standard Oil, 487 F.2d 672, 674 (9th Cir. 1973)...............0006 7

Piedmont & N. Ry. Co. v. U.S., 280 U.S. 469, 476 (1930) ............ee 17

Pumphrey v. K.W. Thompson Tool Co., Nos. 94-35281,

TC ans 12, 18

Rita Kernan v. One Washington Park Urban, 154 N.J. 437, 464 (1998).

PRR TNE SIRE AIR ERD WS URE wl 9 Bee dh Banas MERE SE CRORE ir 12

Robinson, 806 F.2d at 450 (3rd Cir.1986) ............cccccceeseesceeseeeeeeeeeeeeees 9

Salve Regina College v. Russell, 499 U.S. 225, 237-38 (1991) ). ......... 20

Schwartz v. U.S., 976 F.2d 213, 217 (4th.Cir. 1992). 0.00... 16, 25

eae 0. TIS DEF Uh, Gite Be LEU erencicecccrecrsescenccnnzenscencavornte 11,19

U.S. v. Beard, 913 F.2d 193 (5™ Cir.1990) ........cscscsssesssecssesseessesssecseseess 11

U.S. v. Bertoli, 40 F.3d 1384 (3d.Cir.1994) ). oo... cece eeeeeeteeeeees 25, 26

U.S. v. Califorpia, S67 U.S. 746, 756 (1993) ....ccccecccecvscccsceccsvcesersesereees 17

CE 0 Sas See nny I ia nasa nccccccintinsetdesonanturiesesconsconen 5

US. v. Page, 828 F.2d 1476 (10™ Cir.1987). .......cceccsescsesssesseecsessseeseeesees 9

U.S. v. Retos, 25 F.3d 1220, 1228 (3d.Cir.1994) )....... eee eeeceesteeeeeeee 5

U.S. v. Russell, 134 F.3d 171 (3d.Cir.1998). 00.0... eeeeeeeeeeeeetee eee e eee 5

U.S. v. Salameh, 152 F.3d 88 (2d Cir. 1998) 000.0... eeeceeteeeseeeeeeee 4,21

Table »f Authorities

U.S. v. United Mine Workers, 3... U.S. 258, 292 n. 57 (1947) )........... 16

U.S. v. Vontsteen, 950 F.2d 1086 (Sth Cir.1992)......... cc cecssereeeeeed 5, 18

U.S. ex rel. Wilson v. Walker, 109 U.S. 258, 266 (1883) ).............00006 15

V.T.A. Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th.Cir.1979) ). ........... 15

Valent v. Mitchell, 962 F.2d 288, 299 (3d.Cir. 1992) .........ccesseereeeeeee 18

Vecchione v. Wohlgemuth, 426 F.Supp. 1297, 1307-1310,

I, Sa Fe Ce CD cercernserctelsncirntetactcininiinirninnnns 16

Waley v. Johnston, 316 U.S. 101 (1942)..........ccccsssssscessereeseeeresereneenees 17

White v. Higgins, 116 F.2d 312 (Ist Cir. 12/12/1940). ........eeeecereeeenes 7

White v. White, 886 F.2d 721 (4th.Cir.1989) 0.0... ee eceeeeeeeeteeeeeeees 19

Withrow v. Larkin, 421 U.S. 35, 47, 43 L. Ed. 2d 712 (1975).............. 10

Zarnes v. Rhodes, 64 F.3d 285 (7th.Cir.1995) ..........cscccssscessssseessesseeees 19

Statutes:

FE UB.G. 6 FBGA) ccecercossvicccssvrnetnrisreniensnnenensiciccaienannmnunmnsasniniie 2

BD CE. GI scsvsncsvscneesicsetnetrssnetaievniinteiviamiupianniniiiniianeniaiaiininiion 3

TOIT i icin ncehaibciseniniaaptitsicaiaiitaniaidsasninanitainaainisidiedianininteniamniandaaamimtie 6

Other Authorities:

MT sisi waicisiteaeedediantihadibiaieepiaamatioipaiemaaabaieniiamaaaimiamaaiate 13, 30

9 Charles Alan Wright & Arthur R. Miller, Fed. Pract. & Proc.,

ee REF e Cs Fe iiivinsivsinsiciinitamapecvnnsntaninitininianecveiennniuntiiaies 17

T. J. Moore & J. Lucas, Moore's Fed. Pract. P 60.33,

GESIS CIB E, TOFD ccccecentsccscteinserccitsnneastbianinninnnininaanaieicnainann 11

11 Wright & Miller, Fed. Pract. & Proc. Sect. 2862 at 198-200 (1973) 16

Rules:

I I es nsenscctcveveiinsnsaccedpencdivtnapechnstiniiaienecashinntasaneehsananiesnaiiaiid 3,4, 15

Ne se panacea dceienieipemnesainiia maeieaaanaana 12, 14

a FN RAEI C I IM ies Mr venn ARIS Geen ROD tty, NEET Sat 14

Be FID) enccisctisinssnsnsnoreccetnicnsonptiintciniiisinhiagiisebiniaiapmemmmnaitsnempnnaaiii 2

Bias FD G., GOD, ccvrisceinccrvivscsrassenectisnataneptansnnsecsintanvnmstenunsiniinsnmnstinnatiaion 2

IE OE IN... 0. cscsssshisisorseninnitensieiasiaaanceaniaiaisbiaadidieianiasiiammuanaelliamaat 18

linn ol Pen CE cecsicsscciisasntnsiiunianaciiinaiaciiatiigintiaviiiinduiiintainani 12

Official and Unofficial Opinions:

Exh. Page Date Subject

l May 18, 1999 Denial of the motion to Clarify.

2 Apr. 29, 1999 Denial of the motion to Recall

A l Apr. 23, 1998 Denial of Petition for Rehearing

B 2-3 Feb. 26, 1998 Appellate Court Judgment

C 4-6 Feb. 26, 1998 Appellate Opinion

D 8-26 Aug. 12,1997 District Court Opinion/Order

7 Oct. 7, 1996 Denial of Petition for Certiorari

E 27 May 13, 1996 Denial of Petition for Rehearing

"T)

28 Mar. 26, 1996 Affirmation of Orders

G 29-31 Aug. 24, 1995 Partial summary judgment

H 32-34 June 19,1995 Order on Re-argument

I 35-36 May 11,1995 Dismissal without prejudice.

J 37-43 Mar. 27,1995 District Court opinion

Basis for Jurisdiction:

Orders to be Reviewed

Apr. 29, 1999 Denial of the motion to Recall

May 18, 1999 Denial of the motion to Clarify.

Jurisdictional Authority

This Court has jurisdiction pursuant to 28 U.S.C. §

1254(1). Rule 13(3) also provides for a review of orders. Calderon

v. Thompson, 118 S. Ct. 1489, 1498 (1998) ("[T]he courts of

appeals are recognized to have an inherent power to recall their

mandates, subject to review for an abuse of discretion."). As

quoted in Graham_v. Johnson, No. 99-22014 (Sth Cir.

02/25/1999).

Service on Solicitor General

Petitioner served a copy of this petition on the Solicitor

General of the U.S. pursuant to Rule 29. 4. (a).

s i V Vv :

The panel refused to read the complaint in the appeal and the

motion to recall in violation of the Due Process Clause of the

Fourteenth Amendment, which requires recalling the mandate,

vacation, other appropriate relief, and recussal. 28 U.S.C. 455(a).

Review For Abuse of Discretion:

The motion to recall the mandate was denied. It reviewed

every issue affirmed by the panel for plain error. The recall would

be followed by a rule 60(b) action if necessary. The issues were;

1. Res Judicata in EPA’s favor was based on the August

1995 order, which remains void. Refusing to recall the mandate

and not vacating this void order was an abuse of discretion.

2. The panel affirmed a statute of limitations bar after

refusing to read tolling allegations pursuant to a cited Supreme

Court ruling. So its refusal to read those allegations in the motion

to recall continues to deprive petitioner of the required reviewed.

3. Res Judicata and the sanction was achieved by a fraud on

the courts by Rockaway’s attorney, and the panel’s refusal to read

the complaint pursuant to cited standards, since the allegations are

unrelated to the panel’s basis for affirmation.

The panel refused to read the complaint in the motion to

recall pursuant to standards of review ignored in the appellate

brief. So, it continues to avoid determining if the district court

abused its discretion by dismissing for failure to state a claim. The

panel also refused to recall a void order that would end the last

obstacle to full reinstatement. Moreover, the panel’s refusal to

recall the mandate prejudices any Rule 60(b) action and proves

bias by the panel based on its action in the appeal and this motion.

The issues in the motion were issues of law. So, petitioner

cited the following authority to compel the panel to decide these

issues. Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714

(1986). The panel abused its discretion by denying the motion to

recall and by not deciding issues of law.

“To satisfy this "extremely difficult burden, of showing an

abuse of discretion, an appellant must demonstrate that the denial

of the motion caused substantial prejudice," Casamento, 887 F.2d

at 1149-50 . . . that is, "prejudice so great as to deny him a

fair trial,” Cardascia, 951 F.2d at 482. "If the denial of the motion

causes some prejudice, but less than substantial prejudice, we are

not apt to reverse." Casamento, 887 F.2d at 1150.” U.S. v.

Salameh, 152 F.3d 88 (2d Cir. 1998).

Summary of the Grounds Given to Recall the Mandate:

Petitioner moved to recall the mandate, vacate the August

95 order and other relief. The grounds were as follows;

1) Mr. Higgins perpetrated a fraud on both courts.

2) The affirmed August 1995 order remains void in three ways.

3) The following errors ' by the panel resulted in substantial

prejudice, thus warranting recall. Refusal to correct errors in the

motion to recall proves the panel was biased during the appeal;

a) A panel must apply standards of review to each issue.

U.S. v. Vontsteen, 950 F.2d 1086 (Sth Cir.1992). None were

applied to the review of the complaint (Exh. C), though they were

cited in the appellate brief, and pointed out in the motion to recall.

b) Standards of review were cited (Exh. M, p.87), which

required reading the complaint, accepting its allegations as true,

and determining if the district court abused its discretion.

Refusing to read the complaint denied petitioner the review called

for by the authorities cited, again denying petitioner due process.

' “For there to be plain error, there must be an "error" that is

“plain” and that "affects substantial rights." U.S. v. Retos, 25 F.3d

1220, 1228 (3d Cir. 1994) (quoting U.S. v. Olano, 507 U.S. 725

(1993)). A deviation from a legal rule is “error.” Id. at 733. A

"plain error is one which is "clear" or "obvious." Id. at 734.” U.S.

v. Russell, 134 F.3d 171 (3d Cir. 01/16/1998).

c) "The principle is well-settled in this circuit that an order

dismissing a complaint without prejudice is not a final and

appealable order, unless the plaintiff no longer can amend the

complaint because, for example, the statute of limitations has

run." Newark Branch, N.A.A.C.P. v. Harrison, 907 F.2d 1408,

1416-17 (3d Cir. 1990). The court’s 1997 opinion states it granted

summary judgment in August 95 though it barred the APA claim

on statute of limitations grounds thus denying petitioner the right

to be heard. That bar made the May 95 order appealable (Exh.!).

d) The panel disregarded this due process violation in the

1997 opinion (Exh. D, p.12). The admitted denial of due process

renders the August 1995 order void, thus warranting its recall.

e) Petitioner appealed the August 1995 summary judgment

ruling since the statute of limitations bar was not in any order to

be appealed. The district court admits imposing that bar, so it had

no jurisdiction to grant summary judgment. So, the August 1995

order is void and petitioner was denied the right to appeal that bar.

So, petitioner “should not suffer the adverse res judicata effects

of a district court judgment when it is denied the benefit of

appellate review through no fault of its own.” Assoc. Gen.

Cont. of Conn. Inc. v. New Haven, 41 F.3d 62 (2d Cir.1994).

Authorities Cited in the Motion to Support Recall:

The authority of Court of Appeals to recall its mandate is

clear. Aerojet-General Corp. v. American Arbitration Assoc., 478

F.2d 248, 254 (9th Cir.1973). While the authority is not conferred

by statute, id., it exists as part of the court's power to protect the

integrity of its own processes. Perkins v. Standard Oil, 487 F.2d

672, 674 (9th Cir. 1973), citing Briggs v. Pennsylvania R.R. Co.,

334 U.S. 304, 306, 92 L. Ed. 1403, 68 S. Ct. 1039 (1948). “We

recognize that an attorney's deliberate attempt to mislead the

court may be such a fraud as will permit the reopening of a

judgment. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322

U.S. 238, 245-46, (1944).” As quoted in Bandai America Inc. v.

Bally Midway Mfg. Co., 775 F.2d 70 (3rd Cir.1985). “When the

alleged error was fundamental and resulted in a highly

prejudicial error do exceptional circumstances exist.”

Continental Casualty Co. v. Dominick D'andrea Inc., 150 F.3d

245 (3d Cir. 1998). This power should be exercised in exceptional

circumstances. Johnson v. Bechtel Assoc. Pro. Corp., 801 F.2d

412, 416 (D.C.Cir.1986). “The power exists to reopen the points

of law already decided . in a clear instance of previous error,

to prevent a manifest injustice.” White v. Higgins, 116 F.2d 312

(Ist Cir. 12/12/1940). "Exceptional circumstances in order to

override the strong policy of repose . . the recall of an appellate

mandate to avoid injustice is . a deeply rooted equity

jurisprudence ._ if a case involves the kind of injustice that

would support an independent suit in the trial court, but presents

an instance where action is needed from an appellate-court, which

cannot entertain a new "independent" action, the remedy of recall

of mandate may well be appropriate” Greater Boston TV Corp.,

463 F.2d 268 (D.C. Cir.1971).

The above authorities are clear and to the point. So, the

August 1995 order should have been recalled since the 1997

district court opinion admits barring petitioner’s right to be heard

then entered summary judgment in EPA’s favor. The three

remaining issues would have been recalled had the panel read the

complaint, accepted its allegations as true, and reviewed for an

abuse of discretion pursuant to the standards cited in the appellate

brief (Exh. M). However, the panel affirmed without considering

the allegations, thus violating Haines v. Kerner, 404 U.S. 519,

520. So, petitioner was denied a meaningful opportunity to be

heard in accordance with the authorities cited in violation of due

process. lowa v. Illinois, 151 U.S. 238 (1894).

thoriti i n Extrajudicial Bias by the Panel:

Petitioner cited authorities that require correction of errors

to avoid a manifest injustice. And also cited the following

authorities to show finality in the face of errors would prove bias.

“Although we have had no occasion to discuss the abuse

standard as applied to actions of a court of appeals as distinct from

those of a trial court, there is no reason to suppose the criterion

should be affected merely because it is an appellate court. .”

Calderon v. Thompson, 118 S. Ct. 1489, 1498 (1998). Webster’s

Ninth New Collegiate Dictionary defines “extrajudicial” as “done

in contravention of due process of law.” "Such pervasive bias

and prejudice is shown by otherwise judicial conduct as would

constitute bias against a party." Davis v. Bd. of Sch. Comm. of

Mobile County, 517 F.2d 1044, 1051 (Sth Cir. 1975), cert. denied,

425 U.S. 944, 48 L. Ed. 2d 188, 96 S. Ct. 1685 (1976). As quoted

in U.S. v. Page, 828 F.2d 1476 (10" Cir.1987). This Court held

“evidence of a generalized bias may be sufficient to establish a

constitutional violation, but only in the most extreme of

cases.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986).” As

quoted in Robinson, 806 F.2d @ 450 (3rd Cir.1986). “Bias or

prejudice connotes an unfavorable opinion that is somehow

"wrongful or inappropriate," because it is undeserved”. Liteky v.

U.S., 114 S. Ct. 1147, 1155 (1994).” As quoted in Groden v.

Random House Inc., 61 F.3d 1045 (2d Cir.1995). See, e.g.,

Margoles v. Johns, 660 F.2d 291, 296 (7th Cir. 1981), cert.

denied, 455 U.S. 909, 71 L. Ed. 2d 447, 102 S. Ct. 1256 (1982)

("A litigant is denied due process if he is in fact treated unfairly").

"Not only is a biased decision maker constitutionally unacceptable

but ‘our system of law has always endeavored to prevent even the

probability of unfairness." Id. (quoting In re Murchison, 349 U.S.

133, 136 (1955)).” As quoted in Hall v. Marion Sch. Dist. No.2,

31 F.3d 183 (4th Cir.1994). The Supreme Court has recognized,

however, that the likelihood of bias or appearance of bias can, in

certain circumstances, be so substantial as to create a conclusive

presumption of actual bias. See, e.g., Withrow v. Larkin, 421 U.S.

35, 47, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975) (there are cases

where "experience teaches that the probability of actual prejudice

on the part of the judge . . is too high to be constitutionally

tolerable"). See also In re Murchison, 349 U.S. 133, 136 (1955)

("to perform its high function in the best way ‘justice must satisfy

the appearance of justice’) (quoting Offutt v. U.S., 348 U.S. 11,

14 (1954)). My certification (Exh. Q) outlines many biased acts.

10

Fraud Upon Appellate Court or Due Process Violation:

Mr. Higgins’ failure to disclose a material fact to the

panel amounts to a fraud upon the court. “To constitute a fraud on

the court, alleged misconduct must harm the integrity of the

judicial process and hamper the administration of justice.”

Alexander _v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989)

(quoting T. J. Moore & J. Lucas, Moore's Fed. Pract. P 60.33, at

515 (2d ed. 1978)); see also In re Intermagnetics America, Inc.,

926 F.2d 912, 916 (9th Cir. 1991). “Failure to disclose .

constituted a fraud upon the court.” U.S. v. Beard, 913 F.2d 193

(5 Cir.1990). “Court should not fall prey to the professional's

[law firm] story of confusion, miscommunication, or negligence.

We believe a. . court should punish a willful failure to disclose .

. . aS an attempt to put forth a fraud upon the court. In re Crivello,

134 F.3d 831 (7th Cir.1998). ‘Willful attempt’ can be inferred

from "any conduct, the likely effect of which would be to mislead

or conceal," Spies v. U.S., 317 U.S. 492, 499 (1943). “Appellate

lawyer must master the trial record.” McCoy v. Court of Appeals

of Wisconsin, 486 U.S. 429, 438 (1988). “Rules of ethics already

prescribe . . attorney must disclose facts and law contrary to his

or her client's interests.” Jd.@ 440-41, n.14. “No independent

action would be entertained for relief from a judgment after one

year except for "fraud on the court" as distinguished from fraud on

a party.” Sylvia Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1020

(3d.Cir.1987). “Rules of Professional Conduct provide federal

courts with a guide.” Nix v. Whiteside, 475 U.S. 157, 170 n.6

(1986); Pumphrey v. K.W. Thompson Tool Co., Nos. 94-35281,

94-35282 (9" Cir.1995) (a licensed attorney, "is aware of the

necessity for compliance with the rules of discovery and the rules

of professional responsibility”). As a New Jersey attorney, Mr.

Higgins concealment of material facts violated the rules;

Attorneys “stood silent as the miscarriage of justice

occurred before [their] eyes. Both lawyers knew that the

judge had been misled or that he was making a colossal

mistake due to his lack of accurate information about

the case. Even though his client was the beneficiary of this

miscarriage, Norton must have known that he could not

ethically accept a victory won by these means.” Matter of

Norton, 128 N.J. 520, 539 (1992).

“In commenting on RPC 3.3, the American Bar

Association states, "[t]here are circumstances where failure

to make a disclosure is the equivalent of an affirmative

misrepresentation.

As adopted in New Jersey, RPC 3.3 exceeds the

requirements of disclosure imposed by the ABA version.

The New Jersey version of RPC 3.3 mandates that a

lawyer shall not knowingly “fail to disclose to the

tribunal a material fact with knowledge that the

tribunal may tend to be misled by such failure." Rita

Kernan v. One Washington Park Urban, 154 N.J. 437, 464

(1998).

12

The foregoing outlines the law on this type of fraud. Else,

failure to disclose a material fact is a due process violation; “the

court stated that the failure to disclose material information is

a due process violation “irrespective of the good or bad faith

of the prosecution.”” Brady v. Maryland, 373 U.S. 83, 86 (1963).

Mr. Higgins read the complaint and had a duty to master

the trial record for appeal. So, he knew Claim Nine against

Rockaway challenged ordinance 54-100L, and Claim Ten alleged

an illegal assessment (Exh. K, p.58-60). Upon reading the opinion

that follows he knew the panel made a colossal error by affirming

res judicata and the sanction based on the 1985 purchase since it is

not related to either claim. Nor was that opinion listed in the

March 95 ruling (Exh. J, p. 41) that he used to prepare the May 95

dismissal without prejudice (Exh. I). So, he knew petitioner was

denied a meaningful review. Mathews v. Eldridge, 424 U.S. 319,

333 (1976). So, concealing allegations that the panel overlooked

obstructed the administration of justice;

He litigated the merits of his 1985 purchase of the plot

of land in New Jersey state court. As the 1993 opinion of

the New Jersey Appellate Division shows, Fernandes has

actually litigated his claims on the merits in the state courts.

He cannot sue once more concerning this same

transaction or occurrence. (Panel’s Opinion, Exh. C)

Mr. Higgins’ conduct violated the following Rules;

RPC 3.3(a) A lawyer shall not knowingly: (5) Fail to

disclose to the tribunal a material fact with knowledge that the

tribunal may tend to be misled by such failure.

RPC 8.4 Misconduct: It is professional misconduct for a

lawyer to: (d) Engage in conduct that is prejudicial to the

administration of justice.

Petitioner proved the panel’s opinion was not related to

the allegations in the complaint. So, refusing to read the complaint

pursuant to Haines v. Kerner, as cited in the appellate brief denied

petitioner the required review. lowa_v. Illinois, 151 U.S. 238

(1894). (“No order can stand in respect of which full opportunity

to be heard has not been afforded”). The panel’s refusal to

consider the fraud also denied petitioner a meaningful review.

"The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a

meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

Refusing to consider the fraud and its continued refusal to read the

complaint pursuant to cited standards proves the panel purposely

refused to address the district court’s denial of due process.

14

The panel disregarded a denial of due process in the

district court’s August 12, 1997 opinion (Exh. D, p.16-17). That

opinion states the following about its March 1995 bench ruling,

“It also found the challenge to the EPA grant condition time-

barred by a six year statute of limitations imposed by the

APA.” It went on to state “by Letter Order dated August 24,

1995, the Court granted summary judgment in favor of the

United States, finding the EPA had not acted arbitrarily and

capriciously when it denied Fernandes’ waiver request.” From

this reading the panel knew that summary judgment on the APA

claim (Exh. G, p.33) in August of 1995 was inconsistent with due

process, since petitioner was denied the opportunity to be heard.

lowa v. Illinois, 151 U.S. 238 (1894). The district court admits

barring the APA claim thus refusing to consider that claim. Then

grants summary judgment on the claim it barred. V.T.A., Inc. v.

Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979) (judgment is void

under Rule 60(b)(4) if the rendering court was powerless to enter

it); U.S. ex rel. Wilson v. Walker, 109 U.S. 258, 266 (1883) ("not

within the powers granted to it by the law"). "A judgment is not

void merely because it is erroneous. It is void only if the court that

15

rendered it lacked jurisdiction of the subject matter, or of the

parties, or if it acted in a manner inconsistent with due process

of law." Schwartz v. U.S., 976 F.2d 213, 217 (4th Cir. 1992)

(quoting 11 Wright & Miller, Federal Pract. and Proc. § 2862 at

198-200 (1973)). A judgment remains void until such time

jurisdiction is finally determined to exist, and, by virtue of the

federal courts’ "jurisdiction to determine jurisdiction,” is elevated

by its "bootstraps" to the status of a valid judgment, see U.S. v.

United Mine Workers, 330 U.S 258, 292 n.57 (1947); Vecchione

v. Wohlgemuth, 426 F. Supp. 1297, 1307-1310 (E.D. Pa.)

(describes "bootstrap" principle), affd, 558 F.2d 150 (3d Cir.),

cert. denied, 434 U.S. 943 (1977). A panel can sua sponte reverse

orders that result in a manifest injustice even when law of the case

is involved. Dilaura v. Power Auth., 982 F.2d 73 (2nd Cir.1992).

See Christianson, 486 U.S. at 817 (quoting Ariz. v. Cal., 460 U.S.

at 618 n.8).

The August 1995 order is also void because petitioner

filed a notice of appeal on June 22, 1995 (Exh. L), three days after

the court denied reconsideration (Exh. H), and two months before

its August 1995 order (Exh. G). That notice denied the district

court jurisdiction to enter its August 95 order;

16

“As a general rule, the filing of a notice of appeal divests

the district court of jurisdiction over the case pending

disposition of the appeal. Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 58, 74 L. Ed. 2d 225, 103 S. Ct.

400 (1982) (per curiam)” Mary Ann Pensiero v. Robert L.

Lingle, 847 F.2d 90 (3 Cir.1988).

Third, the May 1995 order ended the litigation. U.S. v.

California, 507 U.S. 746, 756 (1993); see also 9 Charles Alan

Wright & Arthur R. Miller, Fed. Pract. and Proc. § 2273 (3d ed.

1995) (a dismissal without prejudice is "a final termination of the

present action"); Deutsch v. U.S., 67 F.3d 1080, 1083 (3d Cir.

1995). The district court’s admitted statute of limitations ruling

ended jurisdiction. Newark Branch, N.A.A.C.P._v. Harrison,

supra. So, the lower court knew it had no jurisdiction to enter its

August 1995 order. Waley v. Johnston, 316 U.S. 101, 104-5

(1942); Piedmont & N. Ry. Co. v. U.S., 280 U.S. 469, 476 (1930)

(res judicata does not apply when court lacked jurisdiction).

Since the foregoing proves the panel overlooked a due

process violation in the 1997 district court opinion and that the

August 1995 order remains void in two other ways, the panel’s

refusal to recall a void order proves bias. The August 1995 void

order was never raised by its bootstrap in order to justify not

recalling the mandate and not vacating that order.

17

i

Refusal to Read Complaint Denied Due Process:

“An appellate court must apply some standard of review

to every issue it considers . ._ if neither party suggests the

appropriate standard, the reviewing court must determine the

proper standard on its own.” U.S. v. Vontsteen, supra.; Gulf Oil

Corp. v. Comm. of LR.S., 914 F.2d 396 (3rd Cir. 1990) “When

the alleged error was fundamental and resulted in a highly

prejudicial error do exceptional circumstances exist”. Continental

Casualty Co. v. Dominick D'andrea Inc., 150 F.3d 245 (3d Cir.

1998). Page 5 of the appellate brief (Exh. M), shows petitioner

presented standards of review that required reading the complaint.

Haines v. Kerner, 404 U.S. 519 (1972). Accepting its allegations

and exhibits as true. ALA. Inc. v. CCAIR. Inc., 29 F.3d 855

(C.A.3 1994). Determining if the district court abused its

discretion. Inter. Union. UAW v. Mack Trucks. Inc., 820 F.2d 91,

95 (3d.Cir.1987); Valenti v. Mitchell, 962 F.2d 288, 299 (3d. Cir.

1992). The panel disregarded these standards, and failed to state

the standard it did apply in its opinion (Exh. C). The panel relied

on the district court opinion after petitioner specifically argued

that it failed to read the complaint (Exh. N). Appellant presented

these facts in the motion to recall proving the panel should correct

18

its error by applying the cited standards. So, its continued refusal

to provide the review required by Haines v. Kerner, supra is a

continued denial of the opportunity to consider the allegations,

instead of the district court opinion. lowa v. Illinois, supra.

“The district court is obligated to construe the complaint

liberally. See Haines v. Kerner, 404 U.S. 519 (1972) (inartfully

pleaded allegations of the pro se complaint are held to less

stringent standards than formal pleadings drafted by lawyers).” As

quoted in White v. White, 886 F.2d 721 (4th Cir.1989). See; Parks

v. Hargett, No. 98-7068 (10th Cir.1999). “We review the district

court's decision de novo and liberally construe plaintiff's

pleadings. Heines v. Kerner.” As quoted in Jason Aaron Boling v.

Roy Romer, No. 96-1115 (10" Cir.1996). “We review de novo the

district court's dismissal for failure to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6).” Oscar v. Univ. Students Co-op. Ass'n,

965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 113 S. Ct. 655

(1992). “we must construe Zarnes's complaint liberally in

determining whether the court properly dismissed these

claims.” Zarnes v. Rhodes, 64 F.3d 285 (7th Cir.1995). “We

cannot say with assurance that petitioner can prove no set of

facts in support of his claim entitling him to relief. Haines v.

19

Kerner. . . accordingly, the Court of Appeals should have

reversed the dismissal of this claim and remanded for further

proceedings.” As quoted in Hughes v. Rowe et al, 449 US. 5,

101 S. Ct. 173, 66 L. Ed. 2d 163, 49-U.S.L.W. 3346 (1980).

This line of cases requires the same review in the district,

appellate, and Supreme Courts. So, the required review for

dismissed pro se complaints is de novo. Salve Regina College v.

Russell, 499 U.S. 225, 237-38 (1991) (“[w]hen de novo review is

compelled, no form of appellate deference is acceptable.").” The

panel’s refusal to review de novo denied appellant the opportunity

to prove the district court abused its discretion since its findings

are not related to the allegations, proving it failed to read it.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950). “No order can stand in respect of which full opportunity to be

heard has not been afforded.” Iowa v. Illinois, 151 U.S. 238 (1894).

The panel reviewed the district court’s sanction ruling

pursuant to the same standard in the following holding which first

read the complaint to construe pro se pleadings:

“We review the district court's imposition of Rule 11

sanctions for abuse of discretion. Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 405 (1990); U.S. v. Borneo,

Inc., 971 F.2d 244, 248 (9th Cir. 1992). . While the

district court may impose Rule 11 sanctions against a

20

pro se litigant for filing a frivolous claim, the court must

construe pro se pleadings liberally. See Haines v. Kerner,

404 U.S. 519, 520 (1972); Cook v. Peter Kiewit Sons Co.,

775 F.2d 1030, 1037 & n.13 (9th Cir. 1985). Orndoff v.

U.S.LR.S., 26 F.3d 131 (9th Cir.1994)

Appellant cited a standard that required reading the complaint

and pointed out the lower court’s failure to read it (Exh. N).

Hence, the panel’s refusal to do so on appeal and in the motion to

recall caused petitioner substantial prejudice. Casamento, 887

F.2d at 1150.” U.S. v. Salameh, 152 F.3d 88 (2d Cir.1998).

Judge Becker’s opinion states;

“The order of the district court will be affirmed. As to the

merits of Fernandes’ claim, his claims are barred by res

judicata. He litigated the merits of his 1985 purchase of

the plot of land in New Jersey state court. As the 1993

opinion of the New Jersey Appellate Division shows,

Fernandes has actually litigated his claims on the merits

in the state courts. He cannot sue once more concerning

this same transaction or occurrence. See, e.g.. Board of

Trustees V. Centra, Inc., 983 F.2d 495, 504 (3d Cir. 1992).”

“Given the facts of this case, the district court's

sanctions are not an abuse of discretion. Fernandes has been

pursuing claims against Rockaway for almost a full decade.

He has appealed the clearly merited dismissals of his

claims all the way to the United States Supreme Court

twice, and yet still has come back for more. ._ . The

order of the district court will be affirmed.”

This opinion affirmed the sanction by relying on the

opinion that refers to the 1985 purchase (Exh. C). Reading the

pleadings pursuant to Haines v. Kerner would have disclosed

21

Claim Nine against Rockaway challenges ordinance 54-100L, and

Claim Ten alleges an illegal assessment (Exh. K, p.58-60). Both

claims are clearly unrelated to the 1985 purchase and the district

court’s 1995 bench ruling (Exh. J, p.41) which outlines the claims

that would be res judicata. Petitioner further certified the

allegations had nothing to do with the claims in that ruling. So

refusing to correct substantial prejudice perpetuated the following

injustice in the 1997 district court opinion (Exh. D, p. 26).

“This Court ruled in 1995 that the claims against Rockaway

were barred by res judicata. No matter how plaintiff restates

or restyles his bases for relief, the issues and the claims are

based upon the same facts and have been resolved against

him.” (Exh. D, p. 26) (Exh. J, p.41)

The district court clearly relied on its 1995 ruling, which does

not list the allegations in the complaint proving it failed to read both

before finding res judicata in Rockaway’s favor and imposing its

sanction on petitioner. So, petitioner proved the panel’s opinion was so

blatantly incorrect, that its refusal to recall res judicata and the sanction

amounts to substantial prejudice and a deliberate denial of due process.

lowa v. Illinois, 151 U.S. 238 (1894). It clearly proves the panel was

biased against petitioner and that it acted in support of the district court’s

original denial of due process, which indicates a conspiracy to deny pro

se litigant’s due process. My certification (Exh. Q) addresses this and

numerous other acts that prove a deliberate denial of due process.

22

Substantial Prejudi — a

The panel’s opinion as follows (Exh. C) is inconsistent with

the allegations, proving its refusal to read the complaint pursuant

to cited standards of review caused a “manifest injustice” and also

denied petitioner a fair opportunity to be heard.

“Further, Fernandes has filed this action in 1997,

between 8 and 12 years after the relevant events. His

actions are barred by the applicable statutes of

limitations.” (emphasis added )

This opinion as compared to one allegation that alleges

tolling doctrines proves the panel erred (Complaint, Exh. K, p.57);

CLAIM EIGHT -— Administrator / Regional

Administrator Failed to Comply with the CWA.

13. The statute of limitations is not a bar to this

action, since the EPA has waived its right to rely on the

statute of limitations, not withstanding the doctrines of

estoppel, equitable tolling, fraudulent concealment and

continuing violation also apply to all the defendants.

The panel’s refusal to comply with Haines v. Kerner,

supra. (Exh. M) in the motion to recall continues to deny a

meaningful opportunity to be heard, Iowa v. Illinois, 151 U.S. 238

(1894), just so the panel can avoid the following duty:

“(t]he question to be answered thus becomes whether the

assertions of the complaint, given the required broad sweep

would permit adduction of proofs that would provide a

recognized legal basis for avoiding the statutory bar.”

Leone v. Aetna Casualty, 599 F.2d 566, 567 (3 Cir.1979).

23

“when the alleged error was fundamental and resulted

in a highly prejudicial error do exceptional circumstances

exist”.” Continental Casualty Co. v. Dominick D’andrea Inc., 150

F.3d 245 (3d Cir. 1998). Disregarding a Supreme Court ruling that

requires reading the complaint is an exceptional circumstance.

This was not meant to replace an appeal, since petitioner

cited Haines v. Kerner in his appellate brief (Exh. M). It merely

reviewed the facts to show the panel’s failure to read the

complaint substantially prejudiced petitioner’s right to be heard.

The following argument shows disregarding standards of review

in the appeal that require reading the complaint, accepting the

allegations as true, and reviewing for an abuse of discretion was a

de novo standard of review, not a deferential one. Since the

dismissal was based on the allegations in the complaint, the

panel’s refusal to read the complaint denied the meaningful

review required by Haines v. Kerner, supra. in the appeal and

continues to deny that review in the motion to recall. "The

fundamental requirement of due process is the opportunity to

be heard ‘at a meaningful time and in a meaningful manner.

Mathews _v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

24

“In order to prevail on a motion to disqualify a judge, a

party must file a timely and sufficient affidavit showing

extrajudicial bias or prejudice.” 28 U.S.C. § 144; Thomassen, 835

F.2d at 732. "A favorable or unfavorable predisposition can .. .

deserve to be characterized as 'bias' or 'prejudice’. U.S. v. Bertoli,

40 F.3d 1384 (3d Cir. 1994). "A judgment is not void merely

because it is erroneous. It is void only if the court that rendered it

. acted in a manner inconsistent with due process of law."

Schwartz v. U.S., 976 F.2d 213, 217 (4th Cir. 1992) (quoting 11

Wright & Miller, Federal Pract. and Proc. § 2862 at 198-200

(1973)). “Although we have had no occasion to discuss the abuse

standard as applied to actions of a court of appeals as distinct from

those of a trial court, there is no reason to suppose the criterion

”

should be affected merely because it is an appellate court. .

Caideron v. Thompson, 118 S. Ct. 1489, 1498 (1998). Based on

these authorities, | am submitting my certification (Exh. Q ) to

show the panel, and Judge Walls decided issues in this and the

former case with a predisposition to deny me due process which

requires recalling the mandate, vacating orders, and other

appropriate relief including disqualification.

25

Recusal of the Panel and Judge Walls:

The foregoing proves the denial of the motion to recall

was an abuse of discretion. Moreover, the conduct outlined in the

certification (exh. Q), goes toward proving the district and

appellate court’s conduct supports the inference that they have a

custom of avoiding substantial allegations, to dismiss and

affirming the dismissal for failure to state a claim by avoiding

standards of review that would prove the initial failure to read it.

The foregoing supports recusal because the decisions of

the district court in 1995 and 1997, as well as the panel’s actions

on appeal and the motion to recall displays, "a deep-seated

favoritism or antagonism that would make fair judgment

impossible." U.S. v. Bertoli, 40 F.3d 1384 (3d.Cir.1994).

“Section 455(a) . . addresses the appearance of partiality,

guaranteeing not only that a partisan judge will not sit, but also

that no reasonable person will have that suspicion. See Liljeberg,

supra, at 860.” Liteky v. U.S., 114 S. Ct. 1147 (1994).

To claim bias on the basis of review errors would have been

premature. But, the panel’s handling of the motion to recall together with

its conduct on appeal as outlined in my certification (Exh. Q) shows the

panel’s refusal to correct proves bias in both proceedings.

26

Conclusions:

The panel affirmed four issues (Exh. C) by overlooking

standards of review that required reading the complaint, accepting

its allegations as true, and determining if the district court abused

its discretion, as well as overlooking an admitted denial of due

process in the district court’s 1997 opinion (Exh. D).

To deny the motion to recall after being made aware of

these oversights is an abuse of discretion. However, the way the

panel and district courts conducted themselves on the issues

outlined in my certification (Exh. Q) clearly proves ‘they

deliberately overlooked issues in order to deny due process.

I trust this Court will review my certification in order to

decide whether the actions of both courts was inconsistent with

the way each issue should have been handled so as to make its

oversights appear deliberate. And that the panel’s initial

oversights and its subsequent refusal to correct them is the final

manifestation of its denial of due process so as to warrant this

Court granting the appropriate relief for extrajudicial bias or an

abuse of discretion.

27

Table of Exhibits

Date Subject

=

Fad

=

é

Cs

o

May 7, 1999 Denied Motion for Clarify

Apr. 23, 1999 Denied Motion to Recall

Apr. 23, 1998 Denied Petition for Rehearing

Feb. 26, 1998 Appellate Court Judgment

Feb. 26, 1998 Appellate Opinion

10-10 Oct. 7, 1996 Denied Petition for Certiorari

11-29 Aug. 12, 1997 District Court Opinion/Order

30-30 May 13, 1996 Denied Petition for Rehearing

31-31 Mar. 26, 1996 Affirmation of Orders

32-34 Aug. 24, 1995 Partial summary judgment

35-36 June 19, 1995 Order on Reargument

37-38 May 11, 1995 Dismissal without prejudice.

39-45 Mar. 27, 1995 District Court bench ruling

46-65 Feb. 27, 1997 Amended Complaint

66-70 Apr. 23, 1979 EPA Memo

71-77 May 25, 1979 EPA Memo on Conspiracy

78-79 July 11, 1980 EPA Memo Commend.Consp.

80-82 Oct. 21, 1988 Wetlands Exemption Letter

83-84 Apr. 1, 1989 NJDEP Recommendation

85-86 May 5, 1989 Letter Denying Grant Waiver

—~YPv—

oa Se wN

AwZOVaG asewv= |

monne ®

L 87-87 Jun. 22, 1995 Notice of Appeal

M 88-89 From appellate brief

N 90-91 From appellate brief

O 92-93 From appellate brief

P 94-95 From appellate brief

Q 96-107 Jun. 20, 1999 Petitioner’s Certification

vt gh

LF t

hs

ire

Fels

je, a!

i praked

i; ae

‘ie

EXH. 1 MAY 18,1999 Denied Motion for Clarification

UNITED STATES COIJRT OF APPEALS FOR THE

THIRD CIRCUIT

May 7, 1999

No. 97-5579

Re: Fernandes v. Rockaway Township

Present: Becker, Chief Judge, Alito and Garth, Circuit

Judges.

1. Motion filed by Appellant for Clarification or in the

Alternative Reconsideration of the Court’s Order

dated 4/29/99.

2. Any response to the above motion is due 5/17/99

and will be forward upon receipt.

*A copy of the Court’s 4/29/99 order attached for the Court’s

information Only.

Donna L. Lee

Case Manager

Direct Dial 597-3137

ORDER

The forgoing motion is denied. All orders entered by the

Court in this matter have been authorized by the judges of

the panel and comply fully with the Federal Rules of

Appellate Procedure, the Local Rules of this Court, and the

Internal Operating Procedures of this Court. Additional

motions made in this same matter will be deemed vexatious

and subject to appropriate sanctions.

By the Court

S/Becker

Circuit Judge

DATED: May 18, 1999

EXH.2 APRIL 29,1999 Denied Motion to Recall

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

April 23, 1999

No. 97-5579

Re: —Fernandes v. Rockaway Township

Present: Becker, Chief Judge , Alito and Garth, Circuit

Judges.

1. Motion filed by Appellant to Recall the Mandate and

Other Relief.

2. The Memorandum Opinion and Judgment in this

appeal was filed 2/26/98 and a Petition for Rehearing

was filed on 3/31/98 An Order denying this petition

was filed on 4/23/98 and the mandate was issued on

5/4/98.

3. Any response to the above motion is due 4/27/99,

and will be forward upon receipt.

- Donna L. Lee

Case Manager

Direct Dial 597-3137

ORDER

The forgoing motion is denied.

By the Court,

S/Becker

Circuit Judge

DATED: APR 29, 1999

EXH.-A April 23, 1998 Denial of Petition for Rehearing

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-5579

NELSON FERNANDES, Appellant

V.

EPA; ADMINISTRATOR OF THE EPA:

REGIONAL ADMINISTRATOR FOR REGION II;

COMMISSIONER OF NJDEP; ROCKAWAY TOWNSHIP

COUNCIL; ATTORNEY GENERAL, Appellee

(D.C. Civ. No. 96-cv-05791)

Present: BECKER, Chief Judge, SLOVITER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,

ALITO, ROTH, McKEE, RENDELL and GARTH,” Circuit

Judges,

SUR PETITION FOR PANEL REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

The petition for rehearing filed by appellant having been

submitted to the judges who participated in the decision of this

Court, and to all the other available circuit judges in active service,

and no judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the court

in banc, the petition for rehearing is DENIED.

BY THE COURT:

“s/Becker”

Chief Circuit Judge

DATED: APR 23, 1998

EXH. - B Feb. 26, 1998 Appellate Court Judgment

IN THE UNITED STATES COURT OF APPEALS

NO. 97-5579

NELSON FERNANDES, Appellant

V.

EPA; ADMINISTRATOR OF THE EPA;

REGIONAL ADMINISTRATOR FOR REGION II:

COMMISSIONER OF NJDEP; ROCKAWAY TOWNSHIP

COUNCIL; ATTORNEY GENERAL

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 96-cv-O5791)

District Judge: Honorable William H. Walls

Submitted Under Third Circuit LAR 34.1(a)

February 13, 1998

Before: BECKER, Chief Judge, ALITO and GARTH,

Circuit Judges.

(Filed Feb. 26 1998)

JUDGMENT

This case came on to be heard on the record from the

United States District Court for the District of New Jersey and was

submitted on February 13, 1998. On consideration whereof it is

now here

ORDERED AND ADJUDGED by this court that the order of the

district court of August 12, 1997 be and the same is hereby

affirmed.

Costs taxed against appellant.

ATTEST:

“s/P. Douglas Sisk”

Clerk

DATED: Feb. 26, 1998

EXH. -C Feb. 26, 1998 Appellate Opinion

NOT-FOR-PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-5579

NELSON FERNANDES,

Appellant

V.

EPA; ADMINISTRATOR OF THE EPA;

REGIONAL ADMINISTRATOR FOR REGION II;

COMMISSIONER OF NJDEP; ROCKAWAY TOWNSHIP

COUNCIL; ATTORNEY GENERAL

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 96-cv-05791)

District Judge: Honorable William H. Walls

Submitted Under Third Circuit LAR 34.1(a)

February 13, 1998

Before: BECKER, Chief Judge, ALITO and GARTH,

Circuit Judges.

(Filed Feb. 26, 1998)

MEMORANDUM OPINION

BECKER, Chief Circuit Judge.

The order of the district court will be affirmed. As to the

merits of Fernandes' claim, his claims are barred by res judicata.

He litigated the merits of his 1985 purchase of the plot of land

in New Jersey state court. As the 1993 opinion of the New

Jersey Appellate Division shows, Fernandes has actually

litigated his claims on the merits in the state courts. He cannot

sue once more concerning this same transaction or occurrence.

See, e.g., Board of Trustees V. Centra, Inc., 983 F.2d 495, 504

(3d Cir. 1992). Similarly, Fernandes has litigated the 1989

denial of his application for a waiver, as shown in the 1995

opinion of the district court. He lost on the merits, and cannot

continue to challenge this occurrence by adding new parties

and refiling the action. Id. Further, Fernandes has filed this

action in 1997, between 8 and 12 years after the relevant

events. His actions are barred by the applicable statutes of

limitations.

As to the district court's Rule 11 sanctions, we review for

abuse of discretion. Lony v. E.I. DuPont de Nemours & Co., 935

F.2d 604, 615 (3d Cir. 1991). However, this standard may

incorporate other standards of review, for the Supreme Court has

indicated that a district court "would necessarily abuse its

discretion if it based its ruling on an erroneous view of the law or

on a clearly erroneous assessment of the evidence." Cooter & Gell

8

See

yv. Hartmarx Corp., 496 U.S. 384, 405 (1990). Given the facts of

this case, the district court's sanctions are not an abuse of

discretion. Fernandes has been pursuing claims against Rockaway

for almost a full decade. He has appealed the clearly merited

dismissals of his claims all the way to the United States Supreme

Court twice, and yet still has come back for more. The district

court did not abuse its discretion in forcing Fernandes to pay a

modest amount of attorney's fees, and in enjoinnig him from

bringing even more suits arising from these same events. The order

of the district court will be affirmed.

TO THE CLERK:

Please file the foregoing opinion of the court. P

BY THE COURT:

“S/ Becker”

Chief Circuit Judge

The Supreme Court denied a petition for Certiorari on October 7,

1996 that appellant was unable to find in order to present it in this

spot.

10

EXH.-D August 12, 1997 District Court Opinion & Order

UNITED STATES DISTRICT COURT

District of New Jersey

Chambers of Martin Luther King Jr.

William H. walls 50 Walnut Street

District Judge Newark, New Jersey 07101

(201) 645-2564

(201) 645-6467 Fax

NOT FOR PUBLICATION

LETTER ORDER

ORIGINAL ON FILE WITH CLERK OF THE COURT

Nelson Fernandes

9 Fox Run

Denville, New Jersey 07834

Plaintiff pro se

Susan Handler-Menahem

Assistant United States Attorney

United States Attorney’s Office

District of New Jersey

970 Broad Street

Newark, New Jersey 07102

Attorney for Federal Defendants

Kim L. Simmons

Environment and Natural Resources Division

Environmental Defense Section

Department of Justice

P.0. Box 23986

Washington, DC 20026-3986

Attorney for Federal Defendants

11

James J. Higgins

Boyar, Higgins & Suozzo, P.A.

10 Park Place, Suite 415

Morristown, New Jersey 07960

Attorney for Defendant Rockaway

Township Town Council

Re: Fernandes V. EPA, et als. Civil No. 96-579]

Dear Counsel and Litigant:

For the fourth time in seven years, plaintiff Nelson Fernandes

(“Fernandes”) has brought suit against various parties for the 1989

denial of permission to connect his property in Rockaway

Township to the township sewer line. Defendants United States

Environmental Protection Agency (the EPA”), Administrator of

the EPA, Administrator of Region II of the EPA, and the Attorney

General of the United States (collectively, "the federal

defendants") move for dismissal of the Complaint. Defendant

Rockaway Township Town Council ("Rockaway") moves for

dismissal of the Complaint and also for sanctions against

Fernandes under Rule 11 of the Federal Rules of Civil Procedure.

Fernandes cross moves for summary judgment. Pursuant to Rule

78 of the Federal Rules of Civil Procedure, the Court decides this

matter on the basis of the written submissions of the parties.

Factual Background

On August 6, 1985, Rockaway Township held a public

sale of real property by auction. The terms of the public auction

were that the property was sold "as is" and that "no representations

of any kind are made by the Township of Rockaway as to the

12

Sa

condition, area, or boundaries of the property herein relevant."

Lot 8 was one of the land parcels on which the public bid.

A portion of Lot 8 was covered by environmentally sensitive

freshwater wetlands. On September 21, 1985, plaintiff won

ownership of Lot 8 by bidding $10,000.00. Plaintiff had a title

search done at the time of purchase. On November 15, 1985,

plaintiff took title to Lot 8 by deed recorded with the Morris

County Clerk. Plaintiff later purchased Lot 9, which is adjacent to

Lot 8, at a tax sale. He planned to subdivide the two lots and build

a single family dwelling and hoped to connect the single family

home to the municipal sanitary sewer line that ran adjacent to his

lots. However, his application was rejected because of a grant

condition imposed by the federal government.

The Rockaway valley Regional Sewer Authority

("RVRSA") operates a sewer system in Morris County, New

Jersey. In 1983, the federal government gave RVRSA a grant to

fund in part a sanitary sewer system. According to Grant

Agreement No. C340389- 04-02, lots within an environmentally

sensitive area (such as wetlands) cannot be connected to federally

funded sewers without a written waiver from the EPA Regional

Administrator. The purpose of the condition is to protect the

surrounding wetlands. -

Plaintiff's lots are two of approximately 140 lots in the

Township which were impacted by the EPA grant condition.

In 1989, at Fernandes’ request, the RVRSA submitted a

}3

waiver application to the EPA for Lot 8. The Army Corps of

Engineers and the NJDEP determined that Lot 8 contained

wetlands areas. After reviewing the application, defendant New

Jersey Department of Environmental Protection ("NJDEP")

recommended that the waiver be denied and forwarded the

application and recommendation to the EPA. On May 5. !989.

after reviewing the application and NJDEP’s recommendation, the

EPA denied Fernandes’ request for a waiver.

Procedural Background

On July 19, 1990, Fernandes filed an Amended Complaint

in the United States District Court for the District of New Jersey

against Rockaway Township Town Council and the Township

Engineer alleging that he was fraudulently induced into purchasing

the two lots without Rockaway disclosing a sewer use ban

imposed on those properties because of the EPA grant condition.

Fernandes v. Rockaway Township Town Council, Civ. No. 90-

0830 (MTB). On November 28, 1990, the Hon. Maryanne Trump

Barry, U.S.D.J., dismissed the case without prejudice for failure to

state a claim for violation of any constitutional right.

On December 4, 1990, Fernandes filed another action

against the same defendants in the Superior Court of New Jersey,

Law Division, Morris County. Fernandes v. Rockaway Township

Town Council, Docket No. MRS-L-5845-90. On July 10, 1991,

the court dismissed all but two counts of the complaint; the

remaining two were dismissed on January 3, 1992. On January 22,

14

1993, the Appellate Division affirmed the dismissal of Fernandes’

state court complaint, and on March 15, 1993, the New Jersey

Supreme Court denied Fernandes’ petition for certification.

Fernandes’ motion for reconsideration from the state supreme court

was denied on May 11, 1993, and on October 4, 1993, the United

States Supreme Court denied plaintiff's petition for a writ of

certiorari.

Undaunted, Fernandes brought another suit in federal

court on January 24, 1994, which was assigned to the undersigned.

Fernandes v. Rockaway Township et al., Civ. No. 94-338 (WHW).

He asserted claims against the EPA, the Regional Administrator,

Rockaway Township Town Council and Township Engineer,

RVRSA, RVRSA|s Executive Director, the law firm of Dorsey &

Bell, and John Dorsey and Joseph Bell, individually. The 1994

complaint, as amended, alleged a conspiracy and other

wrongdoing by all defendants relating to the 1984 EPA grant

condition imposed pursuant to the Clean Water Act, 33 U.S.C. §§

1251 et seq. The complaint set forth thirty-nine claims in all,

including federal civil rights claims, contract claims, takings

claims, and challenges to agency action under the

Administrative Procedure Act ("APA") , 5 U.S.C. §§ 701 et

seq.

The federal defendants moved for dismissal of the

Complaint on the basis of the doctrine of sovereign immunity,

failure to state a claim upon which relief could be granted, lack

15

of subject matter jurisdiction, and failure to comply with the

statute of limitations. The Rockaway defendants, including

Dorsey & Bell, John Dorsey, and Joseph Bell, moved for dismissal

on res judicata grounds, citing the state court suit which concluded

in their favor.

The Court heard oral argument on March 27, 1995 and

ruled that Fernandes’ claims against Rockaway Township, the

Town Council and Township Engineer were barred by res judicata

by virtue of the previous state court action against those parties.

The Court further ruled that the claims against Dorsey & Bell and

John Dorsey and Joseph Bell were also precluded by res judicata,

"identical issues hav[ing] been decided on prior adjudication."

With regard to the federal defendants, the Court noted

that sovereign immunity barred the claims. The Court refused

to find a waiver under the Federal Tort Claims Act ("FTCA"), 28

U.S.C. §§ 1346 (b), 2671-2680 because Fernandes had not

complied with the administrative claim requirement. It also found

the challenge to the EPA grant condition time-barred by a six

year statute of limitations imposed by the APA.

On May 11, 1995, this Court dismissed all of plaintiff's

claims against Rockaway, Rockaway's Township Engineer, the

law firm of Dorsey & Bell, John Dorsey and Joseph Bell,

individually, RVRSA, and RVRSA's Executive Director,

dismissed without prejudice all of plaintiff's claims against the

16

EPA and the Regional Administrator of Region II and denied

plaintiff's motion for partial summary judgment. On June 20,

1995, the court denied Fernandes's motion for reargument. By

Letter Order dated August 24, 1995, the Court granted

summary judgment in favor of the United States, finding that

the EPA had not acted arbitrarily and capriciously when it

denied Fernandes's waiver request.

Fernandes appealed the Court's rulings to the United States

Court of Appeals for the Third Circuit. The Third Circuit affirmed

the three orders by Judgment Order dated March 26, 1996. The

United States Supreme Court denied certiorari on October 7, 1996.

Not to be discouraged by this turn of events, on February

24, 1997, Fernandes filed the instant Complaint against Rockaway,

the EPA, the Regional Administrator, the Attorney General of the

United States, the EPA Administrator and the Commissioner of the

NJDEP. In his Amended Complaint, Fernandes sets out twelve

claims for relief arising from the denial of the waiver, including

denial of due process and equal treatment; conspiracy by the EPA

and NJDEP in violation of 42 U.S.C. §§ 1983 and 1985; violations

of his civil rights pursuant to 42 U.S.C. § 1983; a claim entitled

"Third Circuit and Supreme Court Limited EPA's Use of Grant

Conditions;" violation of EPA regulations and Title VI; failure to

comply with the Clean Water Act, 33 U.S.C. §§ 1251 et seq.;

denial of federal benefits; illegally charging an assessment; failure

of the Attorney General to perform her duty, and intentional

17

infliction of emotional distress. Fernandes seeks mandamus.

declaration of the parties’ rights, and millions of dollars in

damages.

Analysis

I. Whether Claims Against the Federal Defendants Should

Be Dismissed.

The federal defendants move for dismissal of Fernandes’

Complaint on the grounds of res judicata, lack of subject matter

jurisdiction, failure to state a claim upon which relief may be

granted, and the applicable statutes of limitations. The Court has

considered all the arguments raised by Fernandes in opposition to

the motion and finds them to be without merit. Therefore,

dismissal is warranted.

The doctrine of res judicata refers to the "distinctive

effects of a judgment separately characterized as 'claim preclusion’

and issue preclusion.” 5 Charles A. Wright, Arthur R. Miller, &

Edward H. Cooper, Federal Practice and Procedure § 4402, at 6

(1981). Issue preclusion is based upon the notion that "later courts

should honor the first actual decision of a matter that

has already been litigated." Burlington Northern R. v. Hyundai

Merchant Marine, 63 F.3d 1227, 1231 (3d Cir. 1995). "[0] nce an

issue is actually and necessarily determined by a court of

competent jurisdiction, that determination is conclusive in

subsequent suits based on a different cause of action involving a

party to the prior litigation." Montana V. United States, 440 U.S.

147, 153 (1979). Issue preclusion is applied when "(1) the issue

sought to be precluded [is] the same as that involved in the prior

action; (2) that issue [was] actually litigated; (3) it [was]

determined by a final and valid judgment; and (4) the

determination [was] essential to the prior judgment." Burlington

Northern, 63 F.3d at 1232 (citations omitted)

Claim preclusion derives from the principle that "prior

judgments may preclude later litigation both as to matters that

have actually been litigated and decided and as to matters that have

never been litigated or decided." 5 Wright, Miller & Cooper,

supra § 4406, at 44. Application of the doctrine requires (1) a final

judgment on the merits in a prior suit involving; (2) the same

parties or their privities; and a (3) subsequent suit based on the

same cause of action. Board of Tr. of Trucking Emp. Pension

Fund v. Centra, 983 F.2d 495, 504 (3d Cir. 1992) (citations

omitted). When deciding if claim preclusion bars the second

action, a court should consider, among other things, whether the

acts complained of and the demand for relief are the same (that is,

whether the wrong for which redress is sought is the same in both

actions), whether the theory of recovery is the same, and whether

the material facts alleged are the same. United States V. Athlone

Indus.. Inc., 746 F.2d 977, 983 (3d Cir. 1984). A later claim may —

19

be precluded even if different statutes or theories are cited by the

claimant. Id.

The 1994 suit before this Court culminated in a final

judgment on the merits. Essentially, Fernandes seeks the same

relief as he pursued before this Court in the 1994 complaint --

damages and a voiding of the denial of the waiver. The facts have

not changed in the meantime, and the parties remain the same.

Even though Fernandes has cobbled together different claims and

theories as alleged grounds for relief, this Court has already- held

that the EPA's denial of the grant waiver was not arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with the law. - Such a conclusion necessarily includes a finding

that the decision to deny the grant waiver was not illegal and did

not violate any prevailing law or regulation.

Among the issues raised by Fernandes on his appeal to the

Third Circuit was whether "the EPA grant condition represent([ed]

a continuing violation by violating the holdings of Cape May

Greene [Inc. V. Warren, 698 F.2d 179 (3d Cir. 1983)], other case

law and regulations that preceded the grant condition." Reply Aff.

of James J. Higgins, Exh. G. In affirming the District Court, the

Court of Appeals implicitly concluded that there was no violation.

These holdings cannot be relitigated under the guises raised by

Fernandes in the present Complaint.

Even if res judicata did not preclude Fernandes’ claims,

Fernandes’ Complaint is deficient for several other reasons. The

barrier of sovereign immunity discussed by the Court in its

previous opinion has not been surmounted by Fernandes’ filing of

20

an administrative claim under the Federal Tort Claims Act because

the applicable statute of limitations of two years has run. See 28

U.S.C. § 2401(b); Zeleznik V. United States, 770 F.2d 20, 22 (3d

Cir. 1985). ("[A] suit against the United States under the Federal

Tort Claims Act is the exclusive remedy for tort claims arising

from the actions of government officials or employees."), cert.

denied, 475 U.S. 1108 (1986). Moreover, although Fernandes has

invoked the FTCA, he has not named the United States as a

defendant, even though the United States is the only proper party

in an FTCA suit. See. e.g.. Galvin V. OSHA, 860 F.2d 181, 183

(Sth Cir. 1983). Therefore, Fernandes cannot pursue claims

against the EPA, the Administrator, or the Region I] Administrator

under the FTCA.

Fernandes also styles his Complaint as stating a claim

under the citizen suit section of the Clean Water Act, 33 U.S.C. §

1365 (a) (2) , which permits a suit against the Administrator where

there is alleged a failure of the Administrator to perform any act or

duty under the Act which is not discretionary. However, any

claims he may raise under the purview of the citizen suit

provisions must fail due to res judicata. The Court has already

concluded, in its finding that there was no clear error in the denial

of the waiver, that the EPA did not fail to perform any mandatory

duty. To the extent that Fernandes challenges the EPA

regulations authorizing the grant condition, his claims are also

barred by the statute of limitations governing challenges to agency

21

action. See 5 U.S.C. §§ 701-706, Bench Opinion of March 27,

1995 ("Bench Op.") at 9-10.

To the extent that Fernandes asserts claims for violations

of his civil rights pursuant to 42 U.S.C. §§ 1983, 1985, and 2000d,

those claims are barred by the two year statute of limitations

applicable to civil rights claims brought in this district. See

N.J.S.A. 2A:14-2 (West 1990); Wilson V. Garcia, 471 U.S. 261

(1985) (holding that the statute of limitations for civil rights

actions is the same as the state statute of limitation for personal

injuries). Fernandes’ state law tort claims are similarly barred by

the two year limitation for bringing an action under state law.

However, Fernandes’ complaints of civil rights violations

fail for more substantive reasons. First, Fernandes has failed to

allege that these federal actors acted under color of state law -- a

requirement for maintaining a § 1983 action based upon denial of

due process or equal protection. See U.S. Const. amend. XIV, §

1;' Artway V. Attorney General, 87 F.3d 1235, 1251, 1268 (3d Cir.

1996) . Second, his claims under Title VI of the Civil Rights Act

of 1964, 42 U.S.C. § 2000d must fail because contrary to

Fernandes’ position, such a claim requires an alleged

discrimination based upon race, color or national origin.

Fernandes’ argument that equal protection applies when "any

person” is denied a benefit simply lacks merit. Therefore, those

claims would have to be dismissed for failure to state a claim upon

which relief can be granted. Fernandes also claims that Executive

Order 12250, 45 Fed. Reg. 72995 (Nov. 2, 1980) requires the

Attorney General to find that the regulations appearing at 40

C.F.R. §§ 35.925-8(b) and 35.925.13(e) exceeded the EPA's

statutory authority. The Court does not pass on the question of

whether Executive Order No. 12250 provides Fernandes with an

independent right to sue. Instead, it notes that a government

agency's "decision not to prosecute or enforce . _ . is a decision

generally committed to an agency's absolute discretion” Heckler

V. Chaney, 470 U.S. 821, 830 (1985). The presumption against

review may be rebutted "where the substantive statute has

provided guidelines for the agency to follow in exercising its

enforcement powers," (id. at 832-33), a situation not present here.

Moreover, Executive Order 12250, which generally prohibits

discrimination in federally funded programs, is modeled upon Title

VI. Thus, a claim based upon the Executive Order thus depends upon

the viability of Fernandes’ claim for relief under 42 U.S.C. § 2000d.

As the Court has already stated that Fernandes has failed to state a

claim under this statute, Count Eleven must also be dismissed.

Lastly, to the extent that Fernandes seeks damages for an

alleged taking, his claims must be dismissed for lack of subject matter

jurisdiction for the reasons stated on the record at the hearing of

March 27, 1995. See 28 U.S.C. §§ 1346 (a) (2) and 1491(a) (1),

Bench Op. at 17-22. For all of these reasons, the Complaint is

dismissed with prejudice as to the federal defendants.

Il. Whether the Claims Against Rockaway Should Be

Dismissed And Whether Rule |! Sanctions Should Be

Imposed.

Fernandes asserts that Rockaway's ordinance "denied a

federal benefit," illegally charged an assessment, and intentionally

23

inflicted emotional distress on him. Fernandes has already brought

three separate lawsuits against Rockaway Township on various claims

stemming from the same underlying facts -- the denial of the waiver

and the limitations placed upon the property sold to him as a result of

the EPA grant condition. All three lawsuits were concluded

unfavorably to plaintiff, and the most recent dismissal of these claims

was with prejudice. Fernandes appealed two of the three dispositions

all the way to the United States Supreme Court; at all points, the

matters were resolved against Fernandes.

It is clear that these claims against Rockaway Township

are barred by res judicata. To the extent that they are not, they are

also barred by New Jersey's entire controversy doctrine, which

1. ‘It appears that Fernandes has a potential remedy.

The federal defendants renew their position that

Fernandes should submit a completed application for a

waiver. They state that EPA's willingness to consider a

completed application [with further information relating

to the impact of the proposed activities] has not

changed." Federal Defendants' Reply Brief at 6. The

Court suggests that this route, while not a guarantee of

success, is preferable to the continued litigation which has

so far proven fruitless for plaintiff.

requires joinder of "all parties with a material interest, one that can

affect or be affected by the judicial outcome of a legal

controversy." Cogdell V. Hospital Ctr. at Orange, 116 N.J. 7, 23

(1989). The doctrine is predicated on the notion that the

adjudication of a legal controversy should occur in one litigation in

only one court. Esoldi V. Esoldi, 930 F. Supp. 1015, 1025 (D.N.J.

1996); DiTrolio V. Antiles, 142 N.J. 253, 267 (1995). It prevents

a plaintiff from litigating claims that were or could have been

litigated in a prior proceeding and also bars claims against parties

who should and could have been named in the prior proceedings.

Itskoff V. F & G Realty of New Jersey, 890 F. Supp. 351, 355

(D.N.J. 1995); Cogdell, 116 N.J. at 26.2 Therefore, Counts Nine,

Ten and Twelve are dismissed with prejudice.

Rockaway Township has moved for sanctions against

Fernandes. Rule 11 of the Federal Rules of Civil Procedure states

that an unrepresented party may be sanctioned for violations of

subsection (b), which provides that a pleading or motion must not

be | presented for any improper purpose, such as to harass or to

cause unnecessary delay or needless increase in the cost of

litigation;" and requires that the "claims, defenses, and other legal

contentions therein are warranted by existing law or by a

2A federal court hearing a federal cause of action is bound

by New Jersey's entire controversy doctrine, an aspect of the

_ substantive law of New Jersey, by virtue of the Full Faith and

Credit Act, 28 U.S.C. § 1738 (1994) . Rycoline Prods.. Inc. V.

Sun Graphic Inc., 109 F.3d 883, 888 (3d Cir. 1997). Accordingly,

the entire controversy doctrine applies to bar claims in a federal

court when there was a previous state-court action involving the

same transaction. Bennun V. Rutgers the State Univ., 941 F.2d

154, 163 (3d Cir. 1991) , cert. denied, 502 U.S. 1066 (1992)

nonfrivolous argument for the extension, modification, or reversal

of existing law or the establishment of new law[.]" Fed. R. Civ. P.

25

11(b) & (c)

Having brought four separate and unsuccessful suits

against various Rockaway defendants, it is clear that Fernandes

has had more than the proverbial two bites of the apple.? This

Court ruled in 1995 that the claims against Rockaway were

barred by res judicata. No matter how plaintiff restates or

restyles his bases for relief, the issues and the claims are based

upon the same facts and have been resolved against him. To

the extent that they have not, the claims are barred by the entire

controversy doctrine. Plaintiff's dogged pursuit of claims against

Rockaway, claims which have been dismissed by two different

courts and passed on by the United States Supreme Court, can only

be considered harassment this time. Accordingly, Rule | 1

sanctions are appropriate.

Rule |1 instructs that a sanction "shall be limited to what

is sufficient to deter repetition of such conduct." Fed. R. Civ. P.

11(c) (2). Such sanctions may consist of "directives of a

nonmonetary nature, . . . or, if imposed on motion and warranted

for effective deterrence, an order directing payment to the movant

of some or all of the reasonable attorneys’ fees and other expenses

incurred as a direct result of the violation." Id.

31n fact, one may argue that he has sampled the whole

orchard.

Rockaway should be compensated for the costs it has

26

i = CC RR RN ASCE

expended in defending this baseless action. According to the

Affidavit of Legal Services and Disbursements submitted by

counsel for Rockaway, such costs total $3,168.51. However,

because the Court is not persuaded that an award of costs is an

adequate deterrent in this case, the Court will enter an order

enjoining Fernandes from bringing any more complaints against

Rockaway Township, its attorneys, the Rockaway Township Town

Council, RVRSA, or any of their agents which arise from the

denial of the Fernandes’ grant waiver application in 1989 or the

earlier sale of the property to Fernandes. It is the Court's view that

only this type of sanction can deter future attempts at relitigation

of this matter.

Ill. Whether A Default Judgment Should Be Entered Against

Defendant NJDEP.

Fernandes notes that defendant NJDEP has not responded to

his Complaint and moves for a default judgment against it. The Court

is tempted to grant the relief sought by Fernandes against this party.

However, a review of the Complaint reveals that the claims against

NJDEP rely upon findings that the denial of the grant waiver or the

grant condition were illegal or improper, or that NJDEP was a party to

a violation of Fernandes’ civil rights. These claims all fail for reasons

discussed more fully above. Therefore,

the Complaint must also be dismissed as to the NJDEP.

Moreover, claims against the NJDEP should have been

27

brought in either of the last two lawsuits concerning this subject

matter. Because they were not, the entire controversy doctrine

prevents Fernandes from being able to assert claims against this

defendant now.

28

Conclusion

Having considered the arguments of counsel and litigant,

and for the reasons stated above;

IT IS on this 12 th. day of August, 1997;

ORDERED that the Amended Complaint of plaintiff

Nelson Fernandes and all the claims within be and hereby are

dismissed with prejudice; and it is

FURTHER ORDERED that plaintiff's motion for

summary judgment be and hereby is dismissed as moot; and it is

FURTHER ORDERED that judgment be entered against

Fernandes and in favor of defendant Rockaway Township Town

Council in the amount of. $3,168.51; and it is

FURTHER ORDERED that plaintiff be and hereby is

enjoined from instituting any further suits against Rockaway

Township, its attorneys, the Rockaway Township Town Council,

RVRSA, or any of their agents, which arise from the denial of the

grant waiver in 1989 or the sale of the subject property to

Fernandes.

SO ORDERED:

“s/ William H. Walls, U.S.D.J.”

EXH.-E May 13, 1996 Denial of Petition for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5433 & 95-5646

NELSON FERNANDES,

Appellant

v.

ROCKAWAY TOWNSHIP, TOWN COUNCIL, AND

TOWNSHIP ENGINEER; R.V.R.S.A (ROCKAWAY VALLEY

REGIONAL SEWERAGE AUTHORITY);

E.P.A. (ENVIRONMENTAL PROTECTION AGENCY);

DORSEY & BELL; JOHN H. DORSEY; JOSEPH BELL

(D.C. Civ. No. 94-cv-00338)

SUR PETITION FOR REHEARING

Present: SLOVITER, Chief Judge,

BECKER, STAPLETON, MANSMANN, GREENBERG,

SCIRICA, COWEN, NYGAARD, ALITO, ROTH,

LEWIS, McKEE and SAROKIN, Circuit Judges.

The petition for rehearing filed by appellant in the above-

entitled case having been submitted to the judges who participated

in the decision of this Court and to all the other available circuit

judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a

majority of the circuit judges of the circuit in regular service not

having voted for rehearing, the petition for rehearing by the panel

and the Court in banc, is denied.

BY THE COURT,

Circuit Judge

Dated: May 13, 1996

EXH.-—F Appellate Affirmation of the District Court Orders

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5433 & 95-5646

NELSON FERNANDES,

Appellant

v.

ROCKAWAY TOWNSHIP, TOWN COUNCIL, AND

TOWNSHIP ENGINEER; R.V.R.S.A (ROCKAWAY VALLEY

REGIONAL SEWERAGE AUTHORITY);

E.P.A. (ENVIRONMENTAL PROTECTION AGENCY);

DORSEY & BELL; JOHN H. DORSEY; JOSEPH BELL

Appeal from the United States District Court

for the District of New Jersey .

D.C. Civil Action No. 94-cv-00338

(Honorable William H. Walls)

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 15, 1996

Before: STAPLETON, SCIRICA and COWEN, Circuit Judges

JUDGMENT ORDER

After consideration of all contentions raised by appellant, it is

ADJUDGED AND ORDERED that the district court's

order entered May 15, 1995, letter-order entered June 20, 1995,

and letter-order entered August 28, 1995, be and are hereby

AFFIRMED.

Costs taxed against appellant.

BY THE COURT,

Circuit Judge

Attest:

DP. Douglas Sisk, Clerk, March 26, 1996

31

EXH.-—G Aug. 24, 1995 Order

Re: Nelson Fernandes v. Rockaway Town Council and Township

Engineer, et al. Civil Action No. 94-338 (WHW)

Dear Counsel:

This matter is before the Court on Defendant Environmental

Protection Agency's motion for clarification.

INTRODUCTION

On August 6, 1985, Rockaway Township held a public sale

of real property by auction. Rockaway Township sold all property

"as is" without any representations "as to the condition, area, or

boundaries." Lot 8 was one of the land parcels on which the public

bid. A portion of lot 8 was covered by environmentally sensitive

freshwater wetlands.

On September 21, 1985, Plaintiff Fernandes won ownership

of lot 8 by bidding $10,000.00. Fernandes had. a title search done

at the time of purchase. On November 15, 1985, Fernandes took

title to lot 8 by deed recorded with the Morris County Clerk.

Planning to build a single family dwelling, Fernandes hoped to

connect the home to an adjacent municipal sanitary sewer line.

However, his application for the connection was rejected because

of a grant condition imposed by the federal government.

In 1983, the federal government gave Rockaway Township a

grant so that the Township could build a sanitary sewer system.

According to Grant Agreernent No. C340389-04-02, lots within an

environmentally sensitive area ("ESA") cannot be connected to

federally funded sewers. The purpose of the condition is to protect

the surrounding wetlands. Fernandes’ request for a waiver from

EPA's ban to connect to the sewerage system was denied.

In January 1994, Fernandes filed a Complaint naming the

following defendants: the Environmental Protection Agency

("EPA"), the EPA" Regional Administrator ("Regional

Administrator"), Rockaway Township, Rockaway Town Council,

Rockaway Township Engineer, Rockaway Valley Regional

Sewerage Authority ("RVRSA"), Dorsey & Bell Law Off ice, John

Dorsey and Joseph Bell. All of the above-named defendants

moved to dismiss plaintiff's Complaint. Fernandes cross-moved for

a partial summary judgment. EPA and the EPA Regional

Administrator then moved for a partial summary judgment.

In its May 11, 1995 Order, this Court (1).dismissed with

prejudice all of plaintiff's claims against defendants Rockaway

Township Town Council and Township Engineer, Dorsey and

Bell, John Dorsey and Joseph Bell, and Rockaway Valley

Regional Sewerage Authority and its Executive Director, (2)

dismissed without prejudice all of plaintiffs claims against

United States Environmental Protection Agency and Regional

Administrator of Region II and (3) denied plaintiff's motion for

partial summary judgment. EPA's motion for partial summary

judgement was not decided. EPA presently moves for clarification

as to the status of its motion for partial summary judgment. The

motion for clarification is granted and this Court will now proceed

with its determination of the partial summary judgment motion.

The EPA requests a finding that its denial of Fernandes |

grant waiver was not arbitrary and capricious. A reviewing court

must set aside agency action deemed " to be arbitrary, capricious,

and abuse of discretion, or otherwise not in accordance with law."

5 U.S.C. sec. 706(2) (A). The court must "consider whether the

decision was based on a consideration of the relevant factors and

whether there has been a clear error of judgment." Stoeco Dev. .

Ltd. V. Department of Army Corps of Eng'rs, 701 F.Supp 1075,

1080 (D.N.J. 1988), appeal dismissed, 879 F.2d 860 (1989)

(quoting Citi to P V. Volpe, 401 U.S.

402, 415-16 (1971)). However, the court is "not empowered to

substitute its judgment for that of the agency." Td. The standard

of. review is "highly deferential"; agency findings are "entitled to a

presumption of regularity.” Id.

Before granting a waiver application, the EPA must be

assured that the proposed activities do not violate the Clean Water

Act ("CWA"), 33 U.S.C. §§ 1251-1387. Congress enacted the

CWA in order to "restore and maintain the chemical, physical, and

biological integrity of the Nation's waters." 33 U.S.C. sec. 1251

(a). Thereafter, the discharge of dredged or fill materials from a

point source into wetlands without a section 404 permit issued by

the U.S. Army Corps of Engineers became prohibited. See 33

U.S.C. §§ 1311 (a), 1344.

Before granting a waiver application, the following factors

are to be considered: (1) area extent of vacant parcel(s) which

33

contain ESAs (i.e., floodplains and/or wetlands); (2) extent and

ecological quality of ESAs affected; and (3) amount of existing

development surrounding the parcel(s). See Exhibits to

Declaration of Robert W. Hargrove, Exh. D. To obtain the

necessary information, an inspection of the property was

conducted in March 1989 at the request of the EPA. Id. at Exhs.

N, 0. The inspection revealed extensive wetlands, several small

streams running from the property into White Meadow Lake, and

significant development of surrounding lots. Id. Based on the

above data, the EPA denied Fernandes’ waiver application. The

EPA has offered to

reevaluate Fernandes’ application provided that a more recent

site inspection is performed and information demonstrating that

any sewer system connections will not jeopardize the wetlands is

provided.. Id. at Exhs. Q, R.

Based on the above, this court finds that the EPA considered

the relevant factors and made no "clear error" when reaching its

decision. The site inspection conducted in 1989 did not reveal a

significant decrease in wetlands warranting reclassification. The

property continues to be predominantly wetlands and therefore

continues to be protected under the Clean Water Act. The EPA's

decision to protect the wetlands is rationally based on the available

information. No contravening evidence is offered by the plaintiff.

Accordingly,

IT IS on this 24 th. day of August 1995 ;

ORDERED that the EPA's motion for clarification is

granted; and it is further

ORDERED that EPA's motion for partial summary

judgment is granted.

WILLIAM H. WALLS, U.S.D.J.

34

as i eg ee Be ee el

EXH.-H June 19, 1995 Denial of Reargument

Dear Counsel:

This matter is before the Court on plaintiff's motion

for reargurnent.

INTRODUCTION

On August 6, 1985, Rockaway Township held a

public sale of real property by auction. The terms of the public

auction were that the property was sold "as is" and that "no

representations of any kind are made by the Township of

Rockaway as tQ the condition, area, or boundaries of the property

herein relevant." Lot 8 was one of the land parcels on which the

public bid. A portion of lot 8 was covered by environmentally-

sensitive freshwater wetlands. On September 21, 1985: plaintiff

won ownership of lot 8 by bidding $10,000.00. plaintiff had a title

search done at the time of purchase. On November 15, 1985,

plaintiff took title to lot 8 by deed recorded with the Morris

County Clerk. Plaintiff later purchased lot 9 which is adjacent to

lot 8. He planned to subdivide the two lots and build a single

family dwelling. plaintiff hoped to connect the single family home

to the municipal sanitary sewer line that ran adjacent to his lots.

However, his application was rejected because of a grant condition

imposed by the federal government. In 1983, the federal

government gave Rockaway Township a grant so that the

Township could build a sanitary sewer system. According to

Grant Agreement No. C340389-04-02, lots within an

environmentally sensitive area could not be connected to federally

funded sewers. The purpose of the condition is to protect the

surrounding wetlands. plaintiff's lots are two of approximately

140 lost in the Township which were impacted by the EPA grant

condition. plaintiff attempted to obtain a waiver from EPA's ban,

but defendant Rockaway Valley Regional sewage Authority

received a letter on May 5. 1989 from the EPA's Acting Regional

Administrator denying the request.

All of the defendants moved to dismiss plaintiff's various

claims against them. plaintiff cross-motioned for partial summary

judgment. EPA, in addition to its motion to dismiss, moved for

partial summary judgment against the plaintiff.

In its May 11, 1995 Order, this Court (1) dismissed with

35

prejudice all of plaintiff's claims against defendants Rockaway

Township Town Council and Township Engineer, Dorsey and

Bell, John Dorsey and Joseph Bell, and Rockaway Valley

Regional Sewerage Authority and its Executive Director, (2)

dismissed without prejudice all of plaintiff's claims against

United States Environmental Protection Agency and Regional

Administrator of Region II and (3) denied plaintiff's motion for

partial summary judgement. EPA's motion for partial summary

judgement was not decided.

<

Discussion

Under Rule 12(1) of the United States District Court Rules, the

party moving for reargument must state "concisely the matters or

controlling decisions which [said party believes the Judge or

Magistrate has overlooked." Id. If the motion is granted, "the

matter shall be reargued orally." Id.

The primary determination in a motion for reargument is

whether "dispositive factual matters or controlling decisions of

law" were overlooked by the Court. Pelham v. United States, 661

F.Supp. 1063, 1065 (D.N.J. 1987). A motion for a reargument is

not an opportunity for a party to presen't new arguments. Elorham

Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162

(D.N.J. 1988). Where the Court has not overlooked facts and cases

properly presented at the time of the motion, the Third Circuit has

consistently denied relief. See Egloff v. New Jersey Air National

Guard, 684 F. Supp. 1275 (D.N.J. 1988). A party's disagreement

with the Court's decision "should be dealt with In the normal

appellate process, not on a motion for reargument." Florham Park

Chevron, 680 F. Supp. at 163.

Simply stated, plaintiff sets forth no matter or controlling

decision which was overlooked by this Court. Therefore.

plaintiff's motion for reconsideration is denied.

CONCLUSION

For the reasons set forth in this Letter Opinion, it is on this

19 th. day of June 1995

ORDERED that Plaintiff's motion for reargument be and

hereby is denied.

“s/ William H. Walls, U.S.D.J./

_

EXH.-I May 11, 1995 Order

BOYAR, HIGGINS & SUOZZO, P.A. (JH 8207)

A Professional Corporation

10 Park Place, Suitte. 415

Morristown, New Jersey 07960

(201) 538-8008

Attorneys for Defendants, Rockaway Township

Town Council and Township Engineer

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NELSON FERNANDES, Civil Action # 94-338(WHW)

Plaintiff,

ROCKAWAY TOWNSHIP TOWN

COUNCIL AND TOWNSHIP

ENGINEER, et al

Defendants .

x

ORDER DISMISSING AMENDED COMPLAINT

AS TO ALL DEFENDANTS

THIS MATTER having been opened to the Court on March

27, 1995, honorable William H. Walls, U.S.D.J. presiding, upon

defendants’ motions brought pursuant to Fed.R.Civ.P.12(b\1),

Fed..R.Civ.P.12(b)(6) and Fed.R.Civ.P.56 to dismiss the Amended

Complaint, by defendants, Rockaway Township Town Council

and Township Enginee:r by Boyar, Higgins & Suozzo, P.A.

(James J.Higgins, Esq. appearing); by defendants, United States

Environmental Protection Agency and Regional Administrator of

Region II, by the United States Department of Justice (Mark A.

Rigau, Esq. appearing); by defendants, Dorsey & Bell, John

Dorsey and Joseph Bell by Dorsey & Fisher (Douglas R. Cabana,

Esq. appearing); and by defendants, Rockaway Valley Regional

Sewerage Authority and Executive Director, by McManimon &

Scotland (Joseph Maraziti, Esq. appearing); and on cross-motion

of plaintiff, Nelson Fernandes for partial summary judgment

(Nelson Fernandes, pro se appearing), and the Court having

considered the papers filed by the moving parties and those

submitted in opposition, having heard oral argument on March 27,

1995 and for

37

good cause shown, all as set forth on the record, 1995:

IT IS on this 11 th. day of May, 1995:

ORDERED, that the motion of all defendants be and the

same are hereby granted; and it further

ORDERED, that the Amended Complaint be and the same is

hereby dismissed with prejudice as to defendants, Rockaway

Township Town Council and Township Engineer; Dorsey & Bell,

John Dorsey and Joseph Bell; and Rockaway Valley Regional

Sewerage Authority and its Executive Director, with no costs; and

it is further

ORDERED, that the Amended Complaint be and the

same is hereby dismissed without prejudice, as to defendant,

United States Environmental Protection Agency and Regional

Administrator of Region II; and it is further

ORDERED, that plaintiffs motion for partial summary

judgment be and the same is hereby denied; and it is further

ORDERED, that counsel for defendants, Rockaway

Township Town Council and Township Engineer, shall serve a

copy of this Order upon plaintiff pro se and all counsel appearing

within 10 days of it having been entered.

“s/WILLIAM H. WALLS, U.S.D.J.”

38

i ae as es es Oe es

EXH.-J Mar. 27, 1995 District Court Opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil No. 94-0338(WHW)

TRANSCRIPT OF PROCEEDINGS - March 27, 1995

FERNANDES, Plaintiff,

-VS-

ROCKAWAY TOWNSHIP, ET AL, Defendants.

BEFORE:

THE HONORABLE WILLIAM H. WALLS,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

NELSON FERNANDEZ, PRO SE.

BOYAR, HIGGINS & SUOZZO, P.A.

BY: JAMES J. HIGGINS, ESQ.,

-and-

MC MANIMON & SCOTLAND, ESQS..,

BY: JOSEPH J. MARAZITI, JR., ESQ..,

-and-

DOUGLAS R. CABANA, ESQ.,

Attorneys for Defendants.

Pursuant to Section 753 Title 28 United States Code, the following

transcript is certified to be an accurate record as taken

stenographically in the above-entitled proceedings.

PHYLLIS T. LEWIS, C.S.R.

OFFICIAL COURT REPORTER - U.S. DISTRICT COURT

P.O. BOX 25588, Newark, New Jersey, 07101

(201) -645-3677

Start of Page 2

39

(March 27, 1995)

(The foregoing was not ordered at this time.)

THE COURT: In August of 1985 Rockaway

Township held a public sale of real property. That was done by

auction. Property was sold "as is." No representations of any kind

were made by the Township of Rockaway as to the condition, area

or boundaries of the property sold.

Lot 8 was one of the land parcels which was

available for bidding by the public. A portion of that lot was

covered by the environmental sensitive fresh water wetlands.

The present plaintiff, Mr. Fernandez, won by

bidding $10,000 for Lot 8, and he had a title search done at time of

purchase and took title by deed recorded with the Morris County

Clerk.

He later purchased Lot 9 adjacent to Lot 8, and

according to his representations, planned to divide the two lots and

build a single-family dwelling. He hoped to connect it to the

sanitary sewer line that ran adjacent to his lots. However, his

application was rejected because of a grant condition imposed by

the federal government.

In 1983 the federal government had given or gave

Rockaway Township a grant in order that the Township could

build a sanitary sewer system.

Acording to that grant agreement, lots within that

Start of Page 3

environmental sensitive area could not be connected to federally

funded sewers. The purpose of the condition was to protect the

surrounding wetlands.

Unfortunately, plaintiff's lots are two of

approximately 140 lots in the Township which were impacted by

that grant condition.

Mr. Fernandez attempted to obtain a waiver from

that ban of the EPA, but in 1989 Rockaway Valley Regional

Sewerage Authority received a letter from the EPA's Acting

Regional Administrator denying the request.

Consequently, Mr. Fernandez sought the aid of

Federal Court, U.S. District Court for this district, and brought a

40

complaint against Rockaway Township Town Council and the

Township Engineer, and that complaint or a later amended

complaint alleged ten causes of action, including alleged material

misrepresentation, violation of statute and fraudulent concealment

That was dismissed by Judge Barry of this Court on

November 28, 1990 determining that it might be better for plaintiff

to commence his action before the State Court, which he did.

Apparently in 1991, and again in 1992, his State

Court actions were dismissed by the Superior Court of New Jersey.

Start of Page 4

He had in the amended complaint before the

State Court alleged:

(1) That the sale of property to him by Rockaway

Township was in violation of state statute 40:A 12-13.

(2) That there was a malicious policy and custom of

Rockaway Township Town Council to sell worthless lots in

violation of 42 USC section 1983.

(3) That the Township Engineer had conspired with the

Town Council in carrying out this policy with regard to the sale of

lots.

(4) That the Township Council members conspired among

themselves to effect the sale of lots which represented a malicious

abuse of governmental power.

(5) That there was, in addition, conspiracy to have the

Township conceal the EPA grant condition.

(6) That the Township arbitrarily denied requests from

owners of wetland lots to conceal the original conspiracy.

(7) That the Rockaway Township Engineer harrassed

plaintiff in violation of his constitutional rights.

(8) That such rights were infringed by the Township

Engineer, which represented discrimination upon plaintiff who

was a member of a minority.

(9) That there was fraud committed upon him and the

public when the Rockaway Township made an "as is” sale, making

it appear to conform to statutes.

Start of Page 5

And lastly, that the Township sale of the lots contrary to the statute

represents a taking and implied promise to pay compensation.

41

As | said before, this complaint was dismissed in

two parts really by two Superior Court Judges, and thereafter

exercising the right of automatic appeal to the Appellate Division.

Again, Mr. Fernandez lost. The Appellate Division asserting in

dismissing the matter, "We see no basis for breach of contract

claims advanced by plaintiff to the extent he relies upon tort claims

because of the personal injury aspect of the federal claims." He

was barred by the statute of limitations, and also, that the claims

pursuant to 42 USC section 1983 were barred by the New Jersey's

two-year statute of limitations.

Thereupon, Mr. Fernandez sought relief from the

New Jersey Supreme Court, which denied certification in March of

1995. He petitioned the Court for reconsideration which again was

denied in May in 1993.

Thereafter he sought writ of certiorari from our

United States Supreme Court, which was denied in October of

1993.

I think I fairly represented the procedural history, —

and now he commences this present action before this Court, ~

having done so in January of last year, January 24, 1994.

Start of Page 6

As I said originally to him, | repeat to all parties,

with regard to the claims brought against Rockaway Township, the

Town Council and Township Engineer, all of those, in my opinion,

have been the subject of res judicata. His claims against Rockaway

Township, the Town Council and the Township Engineer have

been adequately and fully, in my opinion, presented and tested

before trial judges and through the process of appellate review.

These matters, as I said, were denied. The merits of

them were found to be wanting by two Superior Court judges and

later by the Appellate Division, which action was reviewed by our

highest tribunal. Because these claims have already been

adjudicated, they are therefore barred. All of the elements of res

judicta are satisfied, and his claims against these parties are

dismissed.

42

Plaintiff's claims brought against defendants Dorsey

& Bell Law Office, John Dorsey and Joseph Bell, are dismissed by

the doctrine of collateral estoppel. The thrust of that type of

determination is that identical issues have been decided on prior

adjudication. There has been a final judgment on the merits

The party against whom the bar has been asserted

either was a party or in privity with a party of the former

adjudication, and the party against whom the bar is associated had

a full and fair opportunity to litigate the

Start of Page 7

issues in question.

Defendants John Dorsey and Joseph Bell of the

Dorsey & Bell law firm represented Rockaway Township in the first

action. Plaintiff alleged in discovery, that said defendants were aware

of the Rockaway Township's policy to sell wetland lots.

Furthermore, plaintiff contends defendant Joseph

Bell admitted alleged concealment before the Superior Court. The

issue of whether Rockaway Township concealed the grant petition

has already been adjudicated.

The claim asserting knowledge of Rockaway

Township's concealment made against the attorneys in the law

office must per force fail if a court already determined that

Rockaway Township did not conceal the grant condition, or that

the burden of proof with regard to this assertion has not been met.

Therefore, these matters having already been

adjudicated adversely against him, they have to be dismissed, as |

do now dismiss them, against the individual attorneys.

Now, Mr. Fernandez comes with an attack upon

the actions of the EPA and Regional Administrator. Basically

he seeks $20 million against the EPA and the Regional

Administrator. I will be very succinct about it. The

Government only permits itself to be sued under sovereign

Start of Page 8

immunity, and here there has been no waiver of sovereign

immunity. Therefore, any seeking of $20 million must be

dismissed because such claims are barred by the doctrine of

sovereign immunity. The United States is immune from suit

except if it consents to be seex!,

In relation to his claim against the Regional

Administrator of Region II, he does not name a particular person.

No individual is on notice of a lawsuit against him personally, and

no one is aware of an obligation to defend. Should we treat this

then as an official capacity claim, official capacity suits are

pleaded as actions against the entity because the entity is the real

party in interest. Under those circumstances, the plaintiff can only

recover damages from such an entity, unlike a circumstance of

where an individual has been named in the complaint specifically.

Here the plaintiff does not even name an individual.

It appears that he is simply using this in an attempt to recover more

money from the Government.

However, as I said before, the Government only can

consent to be sued, and in this capacity claim for better status, we

note that the Government has not waived immunity.

Plaintiff argues that immunity is waived under the

Federal Tort Claims Act 28 USC sections 1346(b), 2671-2680.

However, he has not complied with the Federal Tort Claims

administrative claim requirement which is a jurisdictional

Start of Page 9

prerequisite to maintaining a suit. See Livera vs. First National

State Bank of New Jersey, 879 F.2d 1186, 1194, a Third Circuit

decision in 1989, which has been reviewed by our own United

States Supreme Court in denying cert, 493 U.S. 937.

Mr. Fernandez also argues that immunity is waived

under the National Environmental Protection Act, but again, the

government must waive severeign immunity, particularly where he

seeks damages because of a violation of that act does not give rise

to monetary damages. Fund for Animals, Inc. vs. Espy, 814 F.

Supp. 142, 151, a 1993 case from the District of Columbia teaches

us SO.

Plaintiff brings claims under 42 USC 1981, 1982,

1983 and 2000(d), claiming immunity having been waived

under the Federal Tort Claims Act, but as I noted, he has not

complied with the jurisdictional prerequisite.

Additionally, plaintiff says that he wants $20

million in damages, and he makes a takings claim. Under the

as

Tucker Act, soverign immunity is waived and recovery on a

takings claim is permissible in Federal District Court if the

recovery is limited to $10,000. Otherwise, he must seek the forum

of the United States Court of Federal Claims. However, again,

there has been no waiver of immunity.

With regard lastly to his challenge to the EPA grant

condition, that is subject to a six-year statute of

Start of Page 10

limitations found in 28 USC section 2401(a). That cause of

action consists of the plaintiff's rights claimed and the

defendant's infringement of that right. The grant of that right

accrued when the condition became final, when it was accepted

in February of 1984. The statute of limitations began to run

then. Plaintiff's complaint was filed on January 27, 1994. His

challenge is barred by the statute of limitations and is

dismissed.

Plaintiff's claims against the EPA and the Regional

Administrator are dismissed so, too, against Rockaway Valley

Sewerage Authority, because there is no evidence that would

independently link RVRSA, which is Rockaway Valley Regional

Sewerage Authority to any claimed acts.

Any claimed acts against that authority are

dependent upon any cognizable acts that plaintiff could make

against other defendants, which unfortunately he failed to do. For

those reasons, the matters are dismissed.

(The matter was concluded.)

45

EXH.- K Amended Complaint

Nelson A. Fernandes, Pro Se

9FoxRun

Denville, N.J. 07834

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No: 96-5791 (WHW)

CIVIL ACTION

AMENDED COMPLAINT

Nelson Fernandes,

Plainfiff,

-VS-

EPA , Administrator of the EPA,

Regional Administrator for Region II,

Commissioner of NJDEP,

Rockaway Township Town Council,

Attorney General,

Defendants.

Nem Nee ee Nee ee ee”

PARTIES

Plaintiff: Nelson Fernandes, 9 Fox Run, Denville, N.J.

07834, (201) 627-2138 (Pro-Se)

Defendants: Administrator of EPA, 401 M.St. S.W.,

Washington, D.C. 20460,

Reg. Admin. for Region II, Rm. 937A, 26 Federal

Plaza, N. Y., N.Y. 10278, Commissioner of

N.J.D.E.P., CN402, Trenton, N.J. 08625-0029,

Rockaway Township Town Council, 65 Mt. Hope

Rd., Rockaway 07866-1698.

Attorney General, USD of Justice, 950

Pennsylvania NW, Wash., DC 20530

46

JURISDICTION

Federal Tort Claims Act, 28 U.S.C. §§ 1346(a) (b); 2671-2680

(1988) ("FTCA").

42 U.S.C.§ 1983 42 U.S.C.§ 1985(3) 33 U.S.C.§ 1251 et eq.

28 U.S.C. § 1331 28 U.S.C. § 1332 28 U.S.C. § 1366

28 U.S.C. § 1343 42 U.S.C. § 2000d et seq.

5 U.S.C. §701 et seq.

28 U.S.C. § 2201 28 U.S.C. § 1361 28 U.S.C. §1651

Pendent jurisdiction of pendent state claims that arise out of the

same nucleus of operative facts. United Mine Workers V. Gibbs,

383 U.S. 715 (1966).

P NDS A JURY TRIAL

Each fact or allegation is to be considered a pertinent part of

any other claim if needed to complete that claim, so that claim is

not considered defective by its absence.

Rockaway Township will be referred to as “Rockaway”, the

Rockaway Valley Regional Sewer Authority will be referred to as

“RVRSA”, the Environmental Protection Agency will be referred

to as "EPA", the N.J. Department of Environmental Protection will

be referred to as "NJDEP", the Clean Water Act will be referred to

as "CWA".

PERTINENT FACTS AND STANDING.

1. Rockaway Township knew its ordinance denying sewer

service was illegal. So it fraudulently concealed the fact that it

relied on its ordinance. Rather than disclose this fact, it sold land

affected by said ordinance to plaintiff. The township then

approved plaintiffs subdivision although it could not be connected

to the sewer, nor be granted a permit to build a septic system. After

the subdivision was approved, the township denied plaintiff

building permits by making it appear that said grant condition

occurred after the subdivision was approved.

2. Plaintiff was denied the right to build as the result of said

grant condition. However, the only authority that existed to deny

connection was the town's ordinance that was conceald to make it

47

appear that Rockaway was acting in support of federal authority.

After being denied the right to build, plaintiff followed the

procedures provided by Rockaway to obtain a grant waiver.

3. On October 21, 1988 the NJDEP, Division of Coastal

Resources exempted plaintiffs property from having to obtain a

freshwater wetlands permit.

4. On April 1, 1989, plaintiff received a letter from the

NJDEP, Division of Water Resources stating that it was

reconfirming its recommendation to deny plaintiffs waiver,

although plaintiff never received the original recommendation to

deny his waiver.

5. On May 5, 1989, plaintiff received a copy of EPA's

official denial of his grant waiver that relied on NJDEP's

recommendation.

6. Plaintiff met with the EPA and NJDEP on May 30, 1989.

During that meeting, Mr. Llewellyn, EPA's attorney, admitted

plaintiff could fill his lots based on an ACOE permit, thus

destroying the wetlands on his lot, but refused to allow plaintiff to

connect to the sewer. There was no mention of nonpoint source

mnoff.

STANDING

7. Plaintiff was provided sewer connection slips by

Rockaway's Engineering Dept. to show that connection points

were provided to service his lots.

8. Plaintiff paid a sewer assessment in detrimental

reliance of these slips, thus entitling him to sewer service, that

was later denied by Rockaway Township, RVRSA, NJDEP,

and EPA.

9. Plaintiff had the lots subdivided in detrimental reliance of

the sewer connection slips and the assessment that he paid.

10. Rockaway Township, RVRSA, NJDEP, and EPA dealt

with plaintiff as a person entitled to sewer service, but denied the

right by the grant condition. Processing plaintiffs grant waiver

appeal until denied on May 5, 1989, represents an affirmative act

amounting to a waiver of their right to challenge plaintiffs right to

enforce a Title VI regulation, or challenge the validity of the

regulation they rely on.

11. Plaintiff is a third party beneficiary to Grant No.

C340389-04.

48

DPS RR EMEA PT GAT FORE Ne RINNE te YEE oo, age OR

PAGE 1

12. Plaintiff is entitled to service since 40 CFR Ch. |,

Subpart. F, §30.600 (E) requires: These authorities prohibit you

from excluding any person from paflicipating in, denying them the

benefits of. . . any program or activity involving federal financial

assistance.

13. Plaintiff filed a notice of intent to sue in accordance

with the citizen's suit provision of the Clean Water Act, which

provides a waiver of EPA's sovereign immunity.

/

CLAIM ONE - EPA's, Mr. Hargrove, proposed a Denial of Due

Process & Equal Treatment.

1. Robert Hargrove, as a soils conservationist, wrote a memo on

4/23/79 on "Limited access interceptor sewers as they relate to the

construction grant program in New Jersey" (Exh. A).

2. His memo went beyond the concept in the article that it

was based on, by recommending a grant condition to limit sewer

hook-ups that is part of Grant No. C340389-04.

3. He reviewed cases related to sewer service but never

considered the Title VI regulation or other federal court rulings

that bar the grant-eondition that he recommended.

4. His "EPA Authority Section" contained no statutory,

regulatory, or judicial authority to support EPA using a grant

condition, nor did it present the federal law that prohibits its use.

5. Mr. Hargrove knew N.J. septic regulations would not

allow permits for septic systems on lots within 100' of a sewer

line (Exh. A, p.2). Hence, the grant condition caused plaintiff a

denial of state rights and a due process violation, since no

procedure is adequate to protect his right.

6. Mr. Hargrove's failure to address a large body of federal

law that would be violated, shows he recklessly disregarded

plaintiffs rights.

7. Regional Administrator abdicated his duty by failing to

have the Attorney General determine if Mr. Hargrove's concept

complied with federal and state law, thus failing to perform the

nondiscretionary duty of complying with enabling authorities.

, 8. Plaintiff asks the court to review the allegations in this

claim.

CLAIM TWO - Mr. Sullivan Instituted a Policy to Deny Due

Process and Equal Treatment.

1. Mr. Sullivan, Chief of EIS Preparation Branch, wrote a-

policy memo dated 5/25/79 on the subject of "Grant and Permit

Conditions to Restrict Sewer Hookups in Environmentally Critical

Areas" (Exh. B). His memo required the initial use of the grant

condition to deny sewer hookups in grants to be provided to Cape

May, New Jersey and two others areas, which precede the grant

provided to the RVRSA that affects plaintiff.

2. Mr. Sullivan relied on Mr. Hargrove's memo although on

its face it results in a denial of due process and equal treatment

(Exh. A, p. 2).

3. Mr. Sullivan also relied on regulation 35.925-8(b) that

appears in Attachment | to his memo as the authority for imposing

grant conditions (Exh. B, p.6).

4. This regulation exceeds EPA's statutory authority by

disregarding federal law that prevents conditions relating to

plaintiffs rights, unless there is explicit statutory authority.

5. Mr. Sullivan also relied on regulation 35.925-13(e) as.

providing authority to impose a grant condition to restrict sewer

hook-ups (Exh. B, p.7). This regulation exceeds EPA's statutory

authority, thus denying due process and equal treatment, when that

condition was used.

6. Plaintiff asks the court to declare whether the preceding

regulations fail to stay within the authority of the enabling statute.

PAGE 2

7. Mr. Sullivan knew these regulations were inadequate

by recognizing conditions of this type were only accepted when

instituted by the state (Exh. B, p. 2). However, no such law existed

in New Jersey.

8. Mr. Sullivan then instituted a scheme to deny due

process in his memo, under "Strategy and Timetable" (Exh.B,

p-5) "6. Negotiate with State to require them to amend its

review procedure to reject grant applications and deny sewer

extension permits.

9. EPA had NJDEP deny waiver requests, so EPA could

deny plaintiffs waiver on the grounds that it was supporting state

action, in order to fraudulently conceal their own violations.

50

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OPES ST ee P CLT ENE i: NN aE EE Niet: (ht

10. This conspiracy represents an affirmative act amounting

to a waiver of EPA's and NJDEP's right to rely on statute of

limitations or other defense that would bar judicial review.

11. Mr. Sullivan's policy constitutes a "conscious and

express" abdication of EPA's enforcement duties under the

Clean Water Act (CWA).

12. EPA failed to perform a nondiscretionary duty by

creating a wetland lots classification in a grant condition instead of

the manner provided by 33 U.S.C. § 1316.

13. EPA failed to perform a nondiscretionary duty by

invading this state's independence when it negotiated a denial of

due process with NJDEP, to affect its quasi judicial proceedings.

14. On July 11, 1980, Eckardt C. Beck, Assistant

Administrator for Water and Waste Management, wrote a memo

approving the use of Mr. Sullivan and Mr. Hargrove's concept,

making this an official EPA discriminatory policy (Exh. C).

15. Endorsing a policy that negotiates a denial of due

process and equal treatment with a state agency is a failure to

perform the nondiscretionary duty of constitutional conduct.

16. The EPA proceeded with it plan to cause plaintiff

intentional infliction of emotional distress as the means that would

prevent him from challenging their action.

17. Plaintiff prays the court review the above and declare the

rights of the parties on each of the above issues.

CLAIM THREE - EPA and NJDEP's Conspiracy.

1. The underpinnings of this conspiracy are contained in

Mr. Sullivan's 5/25/79 memo (Exh. B, p. 5) "6. Negotiate with

State to require them to amend its review procedure to reject

grant applications and deny sewer extension permits.

2. Presenting this memo in the earlier case represents the

first disclosure of this ongoing concealment of EPA's conspiracy

with the NJDEP.

3. Mr. Sullivan's policy led EPA to "consciously and

expressly" abdicate its enforcement duties under the Clean Water

Act (CWA) by conspiring with the NJDEP to have them review

and recommend denial of plaintiffs grant waiver appeal in

violation of due process. This conspiracy was done in violation of

42 U.S.C. 1983 and 1985.

4. The EPA failed to perform a nondiscretionary duty by

51

involving the NJDEP in the grant waiver review process.

5. The EPA directed the RVRSA to submit grant waiver

appeals to the NJDEP.

6. NJDEP, Division of Water Resources recommendation to

deny plaintiffs grant waiver amounted to an affirmative act

waiving its right to claim the protection of the statute of limitations

and any other affirmative defense that would bar a judicial review.

PAGE 3

7. NJDEP, Division of Water Resources acted in

furtherance of this conspiracy by reviewing Title VI grant

waiver appeals, doing a field study, preparing its report, and

by recommending the EPA deny plaintiffs appeal as Mr.

Sullivan had planned (Exh. E).

8. The review done by the Division of Water Resources,

Municipal Waste Water Assistance Element was done at the

direction of the Commissioner, making him a party to for this

ongoing conspiracy.

9. Plaintiff seeks a declaratory judgment as to the rights of

the NJDEP, EPA and plaintiff, or in the alternative, to compel the

EPA and NJDEP perform its statutory duties. Plaintiff seeks

damages for EPA and NJDEP's invidious discrimination that has

damaged plaintiff.

10. NJDEP's ongoing participation in this conspiracy

abrogates its Eleventh Amendment Immunity in accordance

with 42 U.S.C. § 2000d-7(b), for NJDEP's denial of equal

treatment by recommending a denial of plaintiffs grant waiver

to further the conspiracy.

11. This statute abrogates immunity for violations after

October 21, 1986.

12. Plaintiffs complaint against all the defendants is timely

by virtue of the doctrines of waiver, estoppel, fraudulent

concealment and the continuing violation theory.

13. EPA denied plaintiffs grant waiver in support of

NJDEP's recommendation in furtherance of ifs conspiracy to make

it appear that it was acting in support of state action, which

amounts to a fraudulent concealment and denial of equal

protection that resulted from their joint effort (Exh. F).

14. 33 U.S.C. §§§ 1316,1317, & 1319 do not provide the

- 52

Oh EE EEE EOeO/'O

EPA with authority to deny sewer service via a grant condition or

to make the NJDEP a party to such a denial.

15. This conspiracy was designed to mask the existence of

a cause of action by creating a facade of joint federal and state

action, requiring both the EPA and NJDEP be parties in this

lawsuit in order to show that each lacks the requisite authority

and to prove the recommendation of the NJDEP, taken with

EPA denial of a grant waiver represents the conspiratorial act.

16. Plaintiff asks the court to declare whether EPA and

NJDEP conspired to deny his rights.

CLAIM FOUR - NJDEP's Violation of 42 U.S.C. 1983.

1. NJDEP, Division of Coastal Resources granted

plaintiff a freshwater wetlands exemption on 10/21/88 (Exh.D).

This exemption ended NJDEP's state authority to act further.

2. EPA conspired with NJDEP, Division of Water

Resources to have them recommend denying plaintiff sewer

service under the color of state law, in order to deny plaintiffs

property right to a Title VI benefit, and to deny him equal

treatment, thus violatifig 42 U.S.C. 1983.

3. NJDEP discriminated against plaintiff by recommending a

denial of sewer service in furtherance of its conspiracy with the

EPA, so EPA could deny the waiver in reliance of their act.

4. Plaintiff asks the court to declare whether NJDEP violated

plaintiffs federal rights.

CLAIM FIVE - Equal Protection Violation.

1. Regulations 35.925-8(b) and 35.925-13(e) rely on implied

CWA authority.

2. U.S. Supreme Court held that grant conditions require

explicit statutory authority several years before the EPA imposed

its grant condition of the RVRSA.

3. The EPA used it rightful authority to impose grant conditions to

make the United States liable for an act that was carried out in the name

of the government, and has injured people who

PAGE 4

were intended beneficiaries of a federal program, so that the

government must stand behind the injury done to those who were

supposed to benefit, not be injured.

Se

4. The EPA failed to perform its duty by attaching their grant

condition to the grant provided to the RVRSA.

5. EPA failed to perform its duty in accordance with its

authority, which has resulted in a denial of both; due process

and equal protection by instituting regulations that exceed the

explicit authority of the Clean Water Act, and constitutional

limitations.

6. Plaintiff asks the court to declare whether EPA violated

equal protection.

CLAIM SIX - Third Circuit and Supreme Court Limited EPA's

Use of Grant Conditions.

1. EPA's Cape May grant condition led to a Third Circuit

case, which EPA actively participated in. That case held that EPA

exceeded CWA authority, and was exercising authority over

people who are not directly subject to EPA authority.

2. That holding acts as a conclusive bar to EPA's imposing it

grant condition in any grant in the Third Circuit. The decision of

which predates EPA's grant condition on the RVRSA.

3. The Regional Administrator's grant condition imposed

on the RVRSA on 2/9/84, represents a failure to perform the

nondiscretionary duty created by the Third Circuit holding.

4. EPA's grant condition caused RVRSA members to pass

ordinances in support of a contract condition that fails to provide

explicit statutory authority and also violates the law of this Circuit.

5. EPA was fully aware of these holdings, so its imposition

of the same condition on the RVRSA amounted to an intentional

constitutional discrimination aimed at causing plaintiff damage

and intense emotional distress.

6. Plaintiff asks the court for a declaratory judgment on this

claim.

CLAIM SEVEN - The EPA Grant Condition Violates an EPA

Regulation and Title VI.

1. EPA failed to perform the nondiscretionary duty in 40

, CFR Ch. I, Sub. F, §30.600 (E), by requiring the RVRSA violate

this regulation by complying with its grant condition, after it

imposed a duty to not violate the regulation.

2. Publishing this regulation in the annual release of the

federal register up to 1995, shows this was the prevailing

regulation that should have governed EPA's conduct.

54

PNET Ta CN arene Ram tie

3. EPA's "failure to comply with regulations is a fatal

flaw to administrative action"

4. Plaintiff as a third party beneficiary seeks to enforce this

regulation. Plaintiff also seeks compensatory damages for EPA's

intentional discrimination and intentional emotional distress.

5. The violation of this regulation represents a violation of

the principles in Title VI upon which this regulation and plaintiffs

alternative right to enforce this regulation are based.

6. The foregoing regulation provides a constitutionally

Protected property interest that EPA's grant condition denies, thus

representing a denial of equal protection.

7. 1f plaintiff is foreclosed from enforcing this regulation

then the procedural safeguards to protect his interest are

insufficient to protect it, thus resulting in a due process violation.

8. Plaintiff asks the Court to declare plaintiffs rights on this

claim.

PAGE 5

CLAIM EIGHT - Administrator / Regional Administrator Failed

to Comply with the CWA.

1. EPA's violation of a U.S. Supreme Court ruling that bars ~~

using a grant condition without explicit statutory authority renders

the condition "void ab initio." Hence, EPA is subject to a damages

remedy, including extraordinary damages. Those violations are

recapped, as follows:

(a) Taking private property without paying compensation

contrary to Court of Claims holding, although EPA's conduct

forecloses compensation for a taking. _

(b) 40 CFR 35.925-13(e) denies intended beneficiaries due

Process and equal treatment in violation of the V and XIV

Amendments.

(c) Regional Administrator failure to verify that Mr.

Hargrove's memo was within the limits of CWA authority.

(d) 40 CFR 35.925-8(b) and 35.925-13(e) exceeds the

Statutory authority in 33 U.S.C. § 1319.

(e) The EPA exceeded Title VI authority by involving the

NJDEP in the review of plaintiffs grant waiver appeal.

(f) Classification "wetland lots" without legal authority.

$5

(g) The Administrator ratified an equal treatment and due

process violation.

(h) That violation of equal protection represents a waiver of

EPA's sovereign immunity.

(i) Imposing the grant condition without explicit statutory

authority.

(j) EPA's conspiracy with the NJDEP.

(k) Violating the holdings of Cape May Greene.

(1) Violating 40 CFR Ch. I, Subpart F, §30.600 (E.

2. Not withstanding the foregoing reasons, EPA also failed to

perform the nondiscretionary duty in § § § 1316, 1317 and 1319

which requires identification, regulation and enforcement, not a

denial of a federal benefit that fails to comply with these statutes,

while it violated a regulation. a

3. The grant waiver process denies plaintiff due process since

its procedural safeguards are insufficient to protect plaintiffs third

party right to conmect to the sewer. The grant waiver process

subjects plaintiff to EPA's discretion as affected by its conspiracy,

instead of the explicit statutory requirements in §§§ 1316,1317 and

1319.

4.EPA's grant condition evinces a _ belief by the

Administrator that wetland lots are introducing pollutants into

publicly owned treatment works, since EPA's authority to deny the

effluent standard is limited to that reason. Hence, EPA Kegional

Administrator failed to perform his nondiscretionary duty in

accordance with § § 1316 and 13H, which calls for the

identification of "new sources’ that will be subject to regulatory

guidelines and enforcement. Instead, he imposed a grant condition

that circumvents the nondiscretionary enforcement duties in §

1319.

5.Or, the Administrator believes that wetland lots increases

"nonpoint source” runoff pollution. Hence, denying connection to

the sewer, prevents construction in order to prevent the runoff,

which fails to perform the duty in 33 U.S.C. § 1316 that allows

classification and subsequent regulation and enforcement in

accordance with sections 1317 and 1319.

6. EPA believes that preventing connection to the sewer

prevents runoff pollution by preventing development of vacant

wetland lots. This theory fails to address the runoff from-existing

homes built on wetland lots that are allowed to connect to the

sewer. Hence, the grant condition bears no relation to the objective

56

eS |

sought by treating members of the same class differently,

amounting to a denial of equal treatment.

PAGE 6

7. EPA's failure to require home owners on wetland lots to

obtain a permit for the runoff that EPA considers damaging to the

waters of the United Stated represents a waiver of its right to argue

that said runoff is damaging to said waters. EPA's failure to

exercise its authority against these owners further proves the denial

of sewer service to vacant wetland lot owners was aimed at taking

private property under the guise of regulation.

8. 33 U.S.C. § 1365(a\(2) provides a waiver of immunity to

file an action against the Administrator and Regional

Administrator where there is alleged a failure to perform any act or

duty under this chapter which is not discretionary.

9. 33 U.S.C. § 1365(b) on notice, provides that an action

can begin with notification in the case of an action under this

section respecting a violation of sections 13 16 and 1317(a) of this

title. Plaintiff moved in accordance with this provision.

Furthermore, notice was given in the manner prescribed by

regulation.

10. 33 U.S.C. § 1365(e) also provides a waiver of immunity

without the need for notice when an action is brought under

another statute. Plaintiff having brought this action under 42

U.S.C. § 2000d et seq., as well.

11. Plaintiff also requests the review contemplated by citizen

suit provision, APA, and the review contemplated by Title VI, and

any other applicable statute.

12. The Court must enforce the effluent standard applicable

to residential lot owners since to distinguish between owners of

vacant wetland lots versus developed wetland lots represents an

arbitrary discrimination that amounts to a constitutional denial of

equal treatment, and a deliberate denial of a federal benefit.

13. The statute of limitations is not a bar to this action,

since the EPA has waived its right to rely on the statute of

limitations, not withstanding the doctrines of estoppel,

equitable tolling, fraudulent concealment and continuing

violation also apply to all the defendants.

57

14. Plaintiff seeks damages as provided by 33 U.S.C. §

1365(aX2) in the phrase "amount in controversy," and in

accordance with Title VI for plaintiffs compensatory damages, the

intentional discrimination, and plaintiffs emotional distress, as

provided by 33 U.S.C. § 1365(e).

CLAIM_NINE - Rockaway Township's Ordinance 54-IOOL

Denied a Federal Benefit.

1. Rockaway Township is a member of the RVRSA.

2. Rockaway agreed to comply with 40 CFR Ch. I, Subpart

F, §30.600 (E, as a member of the RVRSA, in order to get the

federal grant.

3. EPA's grant condition is a contract condition since it fails to

present explicit federal statutory authority that Rockaway could act

upon.

4. Rockaway passed ordinance §54-IOOL in support of the

grant condition, which constitutes local action, since no federal

authority was provided to support Rockaway's actions.

5. Rockaway's passage of ordinance §54-IOOL to deny

wetland lot owners the right to connect to the sewer in support of

EPA's grant condition represents a failure to perform the duty

called for by 40 CFR Ch. I, Subpart F, §30.600 (E.

6. Rockaway Township violated a federal regulation that

preempts its ordinance, thus proving Rockaway violated federal

law.

» By violating the regulation and Title VI,

Rockaway Township violates NJSA 40A:48-2, thus exceeding the

authority in an enabling statute, which renders its ordinance "void

ab initio”.

PAGE 7

8. Passing an ordinance that denied plaintiff the right to

connect to the sewer represents a breach of both; the duty

created by regulation, and the duty to protect the public.

9. Passing an ordinance that continues to affect plaintiffs

class to this date in violation of an enabling statute, Title VI

regulation, and their duty, represents a continuing violation.

10. Rockaway's intentional discrimination of a policy

Congress considers vital, amounts to a waiver of its affirmative

defenses in accordance with federal law.

58

11. Rockaway’s passage of this ordinance represents a

violation of 42 U.S.C. 1983 since the town denied plaintiff equal

treatment and property rights protected by the Constitution.

12. Plaintiff makes Rockaway Township a party in order to

have this court declare the rights of the parties with respect to the

ordinance passed in support of a contract condition that fails to

provide explicit federal authority.

13. Rockaway Township knew this ordinance violated the

law, so it took extraordinary steps to conceal that its actions were

in support of local law.

CLAIM TEN - Rockaway Township Illegally Charged an

Assessment.

1. Rockaway provided plaintiff with sewer connection slips

to lead plaintiff to believe that he could connect to the sewer while

concealing the ordinance that would prevent connection.

2. Rockaway sold plaintiff a lot it knew was affected by that

ordinance.

3. Rockaway charged plaintiff an assessment though his lots

did not appear in the ordinances applicable to the area where they

are located.

4. State law provides for a refund of assessments when the

benefit for which they were paid was not provided.

5. Rockaway's planning board approved plaintiffs minor

subdivision to fraudulently conceal its illegal ordinance and

assessment.

6. State regulations preclude septic system within 100’ feet

of a sewer line. The regulation and grant condition prevents

development.

7. Upon plaintiffs application for building permits,

Rockaway made it appear that the grant condition was recently

imposed in order to conceal that said denial was based on

ordinance.

8. Rockaway’s acts in furtherance of the grant condition and

it nonexistent assessment represent affirmative acts amounting to a

waiver of its right to claim the protection of the statute of

limitations, res judicata, and claim preclusion in accordance with

federal law.

9. Plaintiffs N.J. freshwater wetlands exemption and Army

Corp of Engineer's fill permit have long expired, thus preventing

59

plaintiff from developing.

10. Plaintiff is entitled to damages for being denied the right

to build at that time.

11. Plaintiff asks the court to declare plaintiffs rights on

these issues

CLAIM ELEVEN - The Attorney General failed to perform their

duty.

1. The Attorney General of these United States failed to

perform his or her duty in accordance with E.O. 12250 by not

recognizing that Regulations 40 CFR 35.925-8(b) and 35.925-

13(e) are inadequate since they exceed EPA's statutory authority,

in whole or in part. The failure of which creates an implied

authority that does not exist.

2. The Attorney General failed to catch the fact that

regulation 35.925-13(e) violates federal law, thus exceeding

EPA's statutory authority.

PAGES

3. Attorney General's failure, has resulted in EPA claiming

implied authority to impose its grant condition, thus making the

Attorney General partially responsible for plaintiff and his class

being denied their federal entitlement.

4. The Attorney General's sovereign immunity is waived in

33 U.S.C. § 1 365(a)(2) citizen's suit section of the CWA, since the

Attorney General's failure to review the regulations in relation to

standing federal law has contributed to EPA's violation of the

Clean Water Act.

5. The Attorney General's conduct is subject to review

under the APA since the Attorney General failure to perform her

duty, has contributed to EPA's violation of law.

6. Plaintiff asks the Court to review this claim in accordance

with the APA.

CLAIM TWELVE - Intentional Emotional Distress.

1. EPA, NJDEP and Rockaway has caused plaintiff severe

intentional emotional distress by acting in violation of federal law

in support of a grant condition that has denied plaintiff equal

protection of the law, in order to prevent him from developing his

60

lots.

2. Their deliberate violation amounts to an affirmative act

that waives their right to affirmative defenses to prevent a judicial

review.

3. Rockaway has contributed to plaintiffs severe emotional

distress by passing a local ordinance to deny plaintiff a federal

benefit contrary to a regulation that it was obligated to follow. This

deliberate violation is Outrageous since it constitutes a denial of

equal protection. It requires plaintiff to bring an action against the

EPA, NJDEP and Rockaway, in order to show that neither EPA or

NJDEP has authority that Rockaway can rely on to jusflty its

conduct.

4. EPA created a procedure for grant waivers that included

Rockaway, RVRSA, NJDEP and finally the EPA. This procedure

is illegal since EPA was violating federal law to impose its grant

condition in the first place. This procedure was intended to cause

intense emotional distress in each applicant for a waiver, as

supported by the fact that the EPA negotiated denials of these

waivers with the NJDEP. Therefore, this procedure was designed

to deny the very waiver for which the procedure was created,

proving deliberate intentional emotional distress.

5. The deliberate denial of due process evinced by EPA's

conspiracy with NJDEP proves the procedure to vindicate

plaintiffs rights was inadequate,-to protect plaintiff from this

conspiracy, thus denying plaintiff due process. This conspiracy

being extreme and Outrageous.

6. EPA's conspiracy continues to this date, proving plaintiff

continues to be denied the right to connect, even if he were to file

another waiver. Plaintiff class being denied all profitable use of

their property while this conspiracy continues.

7. The conduct of EPA, NJDEP and Rockaway is of such a

deliberate nature that plaintiff has suffered intense emotional

distress in the form of anger, rage, frustration, severe headaches,

and other symptoms that include, but is not limited to fear for his

life for bringing this action, which has only added to plaintiffs

emotional distress.

8. Since EPA's conduct is outlined in a memo that was not

available to plaintiff or his class, constitutes a fraudulent

concealment of a due process and equal protection. This

conspiracy tolls the statute of limitations. EPA and NJDEP's

conduct on this point is so Outrageous that it amounts to an

61

affirmative waiver of every conceivable affirmative defense that

could be raised to block a judicial review of this conduct.

PAGE 9

DEMANDS

DEMAND ONE

Plaintiff asks the Court to review the foregoing claims in

accordance with the statutes on declaratory judgment, APA

review, the review contemplated by 42 U.S.C. 2000d et seq., and

whatever review is called for by the citizens suit section of the

Clean Water Act, as well as any other relief that is within the

court's power to grant, beside the relief requested in the following

demands.

Any alternative request for relief that the court is not able to

grant that must be stricken should only affect the offensive relief

without its affecting the relief remaining in that demand.

Each portion of a demand is severable from the rest, so if

any is deemed offensive, then the offensive portion can be freely

stricken by the Court, while the remaining portion survives.

DEMAND TWO

Plaintiff asks the court to exercise its powers of mandamus

within the limits of its discretion as it applies to any violation.

Plaintiff asks the court to exercise its powers of mandamus

within the limits of its discretion as it applies to the relief

requested.

DEMAND THREE

Plaintiff asks the court to declare the rights of the parties

with respect to Rockaway Township's ordinance § 54-1 OOL, since

that ordinance represents local action that denies a federal benefit

in violation of a federal regulation that preempts the ordinance.

Plaintiff also seeks a declaration of his rights with respect to

the pendent claim of Rockaway charging an assessment for a lot

that does not appear in the assessment ordinance, and his right to

recover the assessment paid.

62

Plaintiff further asks the court to declare whether plaintiff is

entitled to prejudgment interest on the assessment paid, since the

assessment was part of a fraudulent concealment that would make

it appear as though plaintiff would be able to connect, in order to

have the statute of limitations run out.

DEMAND FOUR

Plaintiff prays the jury grant him an award of one mitlion

dollars or whatever amount the jury deems appropriate for

Rockaway Township's intentional infliction of severe emotional

distress caused by Rockaway's intentional denial of a federal right,

its breach of duty to the public, its violation of 42 U.S.C. 1983 and

2000d et seq., and for deliberately concealing material facts from

plaintiff over a prolonged period of time to run the Statute of

limitations.

PAGE 10

DEMAND FIVE

Plaintiff prays the Court declare or render its findings with

respect to EPA, NJDEP, Rockaway Township, and Attorney

General failed to perform their duty, breach their duty, otherwise

violate federal law, and the Constitution as it applies to each

allegation, claim, and issue.

DEMAND SIX

Plaintiff prays the jury award him compensatory damages

from either the EPA, Rockaway, or NJDEP, individually or

collectively in accordance with the respective percentage of

culpability.

Plaintiff prays for the loss of profit from the sale of two

houses that would have taken place in 1986, in the amount of Two

Hundred and Sixty Thousand Dollars ($ 260,000.), plus the

recovery of out of pocket costs of approximately forty five

thousand dollars ($ 45,000). The percentage of liability to be

determined by the jury, or court, if this is not a proper jury issue.

Plaintiff prays the jury award him prejudgment interest at the

prevailing rate that is paid in this state or by the federal

63

aaa i

government, for each of the intervening years that plaintiff has

been denied the use of the profit and his costs. This award to be

paid by the parties in accordance with the disposition of liability in

the preceding paragraphs.

DEMAND SEVEN

Plaintiff prays the jury award him compensatory damages for

severe intense emotional distress in an amount the jury deems

appropriate. The jury being asked to fix the percentage of liability

for the EPA and NJDEP. If the jury is not entitled to set the

percentage of liability, then plaintiff asks the court to set it.

DEMAND EIGHT

Since plaintiff is not entitled to bring a class action suit,

plaintiff prays for extraordinary damages in the amount of twenty

five million $25,000,000. dollars or whatever amount a jury deems

appropriate. These moneys are to be put into an interest bearing

trust fund that will be used to compensate individual lot owners for

damages beyond the compensation for a taking as it applies to a

grant condition that prevents sewer connection in any grant

provided by the EPA. Compensation; for intense emotional

distress will be limited to $ 5,000. and compensatory damages will

also be limited to $5,000. as well. Every claim will be supported

by a court order that reviewed the damages before the foregoing

claims are paid. Plaintiff or the executor of his estate will review

and approve each claim before it is paid. A reviewing fee of six

percent will to be paid from the trust fund for that review.

Each owner seeking damages for EPA's taking is to be

advised of this trust and its terms in order that they may take full

advantage of it. The fund will terminate ten year after it is begun

with the remaining funds to revert to plaintiff or his estate.

PAGE 11

T If this action is successful, it may foreclose the use of these

waivers in future actions, thus denying other injured parties the

opportunity to recover damages beyond that of a taking. Therefore,

plaintiff asks for this award to heal his injury, and by realizing

others affected by this condition need recognition of their injury in

64

EN VRP WASH BAK cages

order to heal.

DEMAND NINE

Plaintiff asks the Court to allow him to further amend his

complaint, after he retains an attorney, based on the outcome of the

motions that will result from this complaint. If plaintiff is able to

prove a prima facie case, then attorneys may be willing to handle

this matter on a contingent fee arrangement. Since plaintiff cannot

afford the estimated fees for dealing with this case, he is forced to

handle the matter pro se.

DEMAND TEN

Plaintiff asks the jury for an award of punitive damages

against the EPA, NJDEP, and Rockaway, either individually or

collectively, in any amount it deems appropriate for defendant's

intentional violations. If percentage of culpability is needed, then

plaintiff asks the jury or the court to determine the percentage of

culpability

AN VE

Plaintiff prays the court award him legal fees for the attorney

that will be used to deal with this matter after plaintiff makes a

prima facie showing that he has been denied due process, equal

treatment and for defendants violation of 42 USC 1983 and 2000d

et seq. Plaintiffs request for attomey's fees is further supported by

42 USC 1988.

February 27, 1997

Nelson A. Fernandes

65

EXHIBIT a TO COMPLAINT

U.S.E.P.A.

DATE: APR 23, 1979

SUBJECT: Limited access interceptor sewers as they relate

to the Construction Grant Program in New Jersey

FROM: Robert W. Hargrove, Soil Conservationist

NJ/PR Section, 2-WA-EI

TO: Daniel Sullivan, Chief

EIS Preparation Branch

THRU: Stephen Y. Arella, P.E., Chief

NJ/PR Section, 2-WA-El

Limiting access to intercepting sewers is a complicated issue

because of the broad latitude for varying legal Interpretations. If

suitable controls could be implemented, it could be of great help to

prevent Induced growth in environmentally sensitive areas.

This paper will deal with an overview of the situation. Court cases

and New Jersey's State regulations and statutes will be explored.

EPA options as they pertain to this subject will be explained.

These options will be further illustrated by case studies In several

EPA regions.

Sewage Disposal as a Public Service

The question of whether or not sewage disposal is a public service

is an important consideration in determining the legality of

limiting access. One important aspect is the source of funds. If, as

in the past, the funds arise from local taxes, it is likely to be

considered a public utility and limiting access would be difficult.

However, since passage of the Clean Water Act, most of the

design and construction of wastewater treatment facilities are

financed by Federal grants. The remainder comes from state

grants and bond issues which are recovered through user charges.

Theoretically, facilities built using such financial backing could

limit sewer hook-ups.

The issue of sewage disposal as a public service was also

addressed in the courts. In Cloyes vs. Delaware Township it was

noted "Sewage disposal is not one of the public services anciently

furnished by local governments, nor Is it uniformly so furnished

today." This was further substantiated in Pleasure Bay Apartments

vs. City of Long Branch, "Neither stat’ nor case law impose; a

mandatory duty on a municipality to fas» hb municipal service for

disposal of garbage or other wastes:" These cases deal primarily

with a municipality not being required to provide such service if

none was provided in the first place.

New Jersey State Law

New Jersey's Sewerage Authority law enables counties or

municipalities, either alone or in combinations, to establish a

sewerage authority. Sewerage authorities are empowered to

construct, operate and maintain facilities to collect, treat and

dispose of sewage. The law Specifies that these authorities have

the power, "to enter into any and all contract, execute any and all

instruments, and do and perform any and all acts or things

necessary, Convenient or desirable for the purpose of the sewerage

authority or to carry out any power expressly given in this act."

The question of allowing hook-ups rests with both the authority

and the municipalities. The authority is free to reasonably fix the

terms and conditions oft service. The key word in this statement

seems to be reasonably. A case from Arizona is a good example of

this. In Travaini vs. Maricopa County the county concluded that

the county “having installed and maintained a sewer line past the

Property in question, the city is thereafter required to allow any

abutting property owner to use said sewer subject only to

reasonable limitations." The "reasonable limitations" in this case

being the capacity of the line.

The Arizona case deals with a collection system in a populated

area, not an interceptor away from the population, and quite

possibly in a sensitive environmental area.

It should be noted that in the case of Southern-Burlington County

NAACP ys. Township of Mt. Laurel the courts have concluded

that limited access interceptors can not be used as a means of

exclusionary zoning.

New Jersey law states that Sewerage authorities can be formed.

The only stipulation concerning hook-ups is the abatement of

pollution and related health hazards. Another consideration

stemming from EPA's cost effectiveness guidelines is that hook-

ups may be necessary for a system to be economically feasible.

State law does give to the authority the ability to enter into

contracts. These contracts are primarily with municipalities for

sewage collection and disposal. It seems to imply that they can

also enter into contracts with EPA through grant agreements.

These contracts stand on the same footing as contracts between

natural persons or municipalities.

New Jersey Septic System Regulations

The Septic System Regulations of New Jersey also affect the

issue. The state will not authorize the building of a septic

system on a property If a sewer line is within 100 feet of it.

With the exception of the general guidelines for sewer hook-

ups, the sewerage authority determines sewer use.

EPA Authority

Protection of environmentally sensitive. areas is mandated by

Federal policy. Certain actions can be taken to promote this policy

with respect to the Construction Grants Program. The first and

easiest mechanism is. to limit the capacity of the system to exlude

development in environmentally sensitive areas. This is an

attempt to limit the number of hook-ups to the system to areas

where growth will not impact critical areas.

There will be some-small projects that can not be limited with

respect to carrying capacity because of minimum Sizing of unit

processes for treatment. Projects such as these might require grant

conditions. The conditions will have to be met in order to insure

receipt of a. 201 grant.

The subject of grant conditions was addressed in PRM 75-26

which dealt with mitigating secondary impacts in the Construction

Grants Process. The Regional Administrator can withhold of Step

and 3 grants until effects, or agrees to conditions in the grant

document requiring actions to minimize the effects.

Some actions to mitigate these secondary effects include, but are

not limited to: phasing and orderly extension of sewer service,

project changes improved land use planning, and sewer use

restrictions. It goes on to say that conditions on a grant must be

reasonable and the applicant must demonstrate "good faith" and be

moving toward mitigative action before the grant is awarded.

Actions that can be taken if the applicant refuses to abide by the

grant agreement are: withhold payments, refuse to process

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subsequent grant applications from the municipality, refuse to

approve grants for future phases of the projects, enter an injunction

against the grant recipient, Suspend project work or terminate the

grant and recover unexpended EPA funds.

The new regulations (9/27/78) on Municipal Wastewater

Treatment Works also contain Provisions for conditions on grants.

Section 35.935-16 on page 44073 states that "the Regional

Administrator shall not pay more than 80% of the Federal-share of

any Step 3 project unless he has approved the grantee's sewer use

ordinance." This means 15% or more of the total project costs

could be held if this is condition wasn't met. However, since this

Process now entails just a review of the ordinance for compliance

with the regulation this may be of minimal value to us at this time.

Case Study Evaluation

Case studies from EPA regions show the various techniques that

can be used to mitigate adverse impacts in the Construction Grants

Program.

In 1975 a project from Region I on Block Island, Rhode Island

could have encroached on environmentally sensitive areas. That

region first scaled down the project. Then a grant condition was

imposed to accept no new hook-ups from wetlands in accordance

with the State law.

That same Year a project from Region III in Falling Creek, VA

which involved the eutrophication of reservoirs and induced

secondary effects on Swift Creek Reservoir. Plant size was

reduced and the Step II grant was conditioned on the development

of a Swift Creek Watershed Management Plan.

In 1975 a Region VIII project in Renner, SD was leading to new

development on a floodplain. A grant condition, based on the

county floodplain ordinance, that said no new hook-ups from the

100 year floodplain. The Region also recommended that capacity

be limited to existing population plus a moderate increase.

In 1974 a Region IX project in Fairfield, CA included pressure to

increase industrial and low density residential land on or near

Suisun Marsh and pressure to develope agricultural land with

impacts on air quality and wildlife. The Step 3 grant was

conditioned to not provide service to new development

immediately adjacent to the marsh based on pending State

protection legislation..

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In 1976 a Region X project in North Fremont, SD was leading to

pressures to increase development in environmentally sensitive

areas. These areas included fishing and wildlife management

areas. The project was altered to have four small sub area facilities

instead of one large Regional plant with long interceptors. The

Step 2 and 3 grants were conditional on County compliance with

State law requiring development of growth controls and a

comprehensive land use plan.

Summary

Case studies show that EPA can and does use grant conditions and

project changes to limit development due to funded projects. It

should be said that if it is possible to base the grant condition on a

state or local law then do it. This will take a lot of heat for such an

action away from falling directly on EPA. Those laws could

include floodplain ordinances (Block Is., RI) or complying with

State requirements for land controls (North Fremont,’ SD). Such

conditions could be based on Federal law but this tends to foster

the public opinion that the Federal government is just trying to

control ‘local zoning. State or local laws that apply to such

situations should be added in to direct the public rage away from

EPA, when possible.

Limited access interceptors is a question that has never formally

been answered in the courts. to do so might require upwards of 3-

4 years to make it through all appeals. The ‘question is not entirely

addressed in New Jersey State law either. The policy of protecting

sensitive environmental areas can be fostered by changing the plan

or imposing grant conditions. EPA has done this in the past and an

analysis t-f these cases show how such problems can be handled

in the future.

Recommended Regional Policy Options

1) Grant Conditions with 3rd party enforcement after grant

expiration.

2) 208 plan inclusion of model local sewer use ordinance and

adoption by local municipalities.

3) Approval of Sewer Use Ordinances by EPA.

4) Constraining service. agreements between MUA's and member

municipalities.

EXHIBIT b TO COMPLAINT

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

DATE MAY25 1979

SUBJECT Grant and Permit Conditions to Restrict Sewer

Hookups in Environmentally Critical Areas

FROM Daniel Sullivan, Chief

EIS Preparation Branch

TO Conrad Simon, Director

Water Division

f robl

EPA's funding of wastewater treatment works through the

Construction Grants Program has been criticized for not

adequately discouraging growth in environmentally sensitive lands

(i.e. floodplains, wetlands, and Significant wildlife habitats). In the

past, the Agency's policy has been to eliminate any Capacity in

proposed systems that would serve these sensitive lands.

However, in several cases this mitigating measure has proven to be

inadequate to curb unsound growth.

Issue

Should EPA-Region ii begin to affix special conditions to Step 2

and 3 construction grants, 208 areawide plans, and 402 permits to

prohibit development in environmentally critical areas?

Salient Factors

The September 27, 1978 Construction Grants Program Rules and

Regulations specifically encourages the use of grant conditions

restricting sewer hookups to protect environmentally sensitive land

from new development. However, because some of the legal

complexities associated with such grant conditions, Region II has

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never exercised this control. We now have several Ideal examples

where such conditions are both appropriate and easily justified.

Unfortunately, merely limiting the size of wastewater treatment

facilities does nct adequately protect sensitive areas. An excellent

example of how a reduction in facilities ca

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