Petition for Writ of Certiorari — Grine v. Coombs

0) Supreme Ceurt Us.

FILED

02 218 vu 92002

IN THE

SUPREME COURT of the UNITRRAEAFESe CLERK

Robert W. Grine II, Joanne D. Grine, Estate of Margaret M. Grine,

Petitioners

vs.

WILLIAM R. COOMBS; BILLIE M. YOST; JACK W. SHRUM,

ET UX; ROTOCAST PLASTIC; ESSEX ENVIRONMENTAL

INDUSTRIES, INC.; TIONESTA BOROUGH COUNCIL;

RONALD HALL, President of Borough Council, in an individual

and official capacity, SCOTT DAUM, Borough Manager of

Tionesta, in an individual and official capacity;

COMMONWEALTH OF PENNSYLVANIA DEPAR NT OF

ENVIRONMENTAL PROTECTION (“DEP”); GARY

WOZNIAK, in an individual and official capacity as an agent of

the DEP; DANIEL HOLLE eee, Response Coordinator,

Northwest Region, in an individual and official capacity, as an

agent of the DEP; RONALD W. COOMBS, Executor of the Estate

of WILLIAM R. COOMBS, DECEASED; UNITED STATES OF

AMERICA ENVIRONMENTAL PROTECTION AGENCY

(EPA); MICHAEL MCCABE, Regional Administrator, Region

III, U.S. EPA;

Respondents

On Petition for a Writ of Certiorari

To the Third Circuit Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Janice Haagensen

Counsel of Record

349 New Road

Enon Valley, PA 161120

Tel: (724) 336-5962

Attorney for Petitioners,

Robert W. Grine II, Joanne D. Grine, Estate of Margaret M. Grine

QUESTION PRESENTED

I. Whether the Third Circuit Court of Appeals infringed

upon Petitioners’ fundamental rights to due process

and rights of access to the courts when it summarily

granted the United States’ Rule 27 Motion to dismiss

the Petitioners’ appeal as of right from a final order

certified pursuant to Rule 54(b), on grounds that the

appellate court lacked jurisdiction over the subject

matter of the appeal?

TABLE OF CONTENTS

Opinions Babee... niissicadepaseiiaenidenie ues 5. 1

POCO 00 0.005inssiescnbmpaniiimna dein cae ee 1

Constitutional and Statutory

Provisions leveled .....:ins<sspipeapaleiiiaai ei i. 3

Statement of the Cantieyss cusssaibisiabisieaieceeiieiaty os 4

Reasons for Granting the Writ

|. The decision of the Third Circuit Court of Appeals

interprets an important federal statute in a way that

conflicts with this Court’s precedents and with settled

law in the Tisked Cloeulls jeanssctihs sis sasciitces ss. 8

TABLE OF AUTHORITIES Page

Cases

Bensalem v. Am. Fidelity Fire Ins. Co.,

A OO CO ic, LGBT )aesicsvsdscsisstsnniccscsncssocsvoorsnnvccss 10

Culbreth v. Amosa (Pty.) Ltd.,

898 F.2d 13 (3% Cir. 1990 per curiam) ..........:.ssesseesseess 10

Curtiss-Wright Corp. v. General Electric Co.,

100 S. Ct. 1460 (1983).......ccsccrrcccsccrcsrseccsseersscensenees 10, 11

Delaware Valley Citizens Council for Clean Air v.

Davis, 932 F.2d 256 (3° Cir. 1991) ...sssssesssssssseesseesssees 10

Dickinson v. Petroleum Conversion Corp.,

70 S. Ct. 322 (1950) .....crscrccresccrsecsecsesssersessseeescrseeees 9, 10

Ex parte McCardle,

7 Wall. 506, 19 L. Ed 264 (1869) ........cccccceeseeeeneeneees 11

Mansfield, C & L.M.R. Co. v Swan,

111 U.S. 379 (1884) ........scscsscsscscossccsrseessrsssesscssssesssersees 11

Steel Co. v. Citizens for a Better Environment,

140 L. Ed 2d 210 (1998) .........ccccccccssssscerssceerssessensens ‘diineae

Constitutions

Se en: ens 3

Statutes

BB U.S.C. § 1291 ...ccrcerccsrcccescssscssrccrescsssssnssacsncsecsersees 3, 10

QB U.S.C. § 133] ....csccccssessssscsrsersersssssssssssesecsssesnessaseneereres 2

Rules of Procedure

Federal Rules of Civil Procedure,

IN THE

SUPREME COURT of the UNITED STATES

Robert W. Grine II, JoAnne D. Grine, and the

Estate of Margaret M. Grine,

Petitioners

VS.

The Estate of William R. Coombs, et al,

Respondents

2 Petition for a Writ of Certiorari

To the United States Court of Appeals

for the Third Circuit

Petitioners, Robert W. Grine II, JoAnne D. Grine, and the

Estate of Margaret M. Grine, respectfully pray that a writ for

certiorari issue to review the order of the United States Court

of Appeal for the Third Circuit entered in this proceeding on

February 27, 2002.

iV

OPINIONS BELOW

The summary decision of the Third Circuit Court of Appeals

which granted the United States’ Rule 27 Motion to dismiss

the Petitioners’ Appeal as docketed at No. 01-4118 and as

taken from the district court order certified in accordance

with Rule 54(b) of the Federal Rules of Procedure and

entered on September 19, 2001, was filed on February 27,

2002; it appears at Appendix A (App. A) and it is

unreported.

The appellate order summarily denying the Petitioners’

timely-filed Petition for Rehearing was entered on April 23,

2002, it appears at Appendix B (App. B), and is unreported.

GROUNDS FOR JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1). The summary decision of the United States Court

of Appeals granting the United States’ Rule 27 Motion for

Dismissal of the appeal at No. 01-4118 was entered on

February 27, 2002. The Court of Appeals denied Petitioners’

timely-filed Petition for Rehearing on April 23, 2002.

The question presented did not arise until Petitioners

received the appellate court’s order of February 27, 2002

granting the United States’ Rule 27 Motion to dismiss the

appeal docketed at No. 01-418 by the Court of Appeals on

November 14, 2001. Petitioners thereupon sought rehearing

arguing that the Court of Appeals had erred in prohibiting a

timely appeal as of right from a final order and that its

decision resulted in fundamental unfairness and a violation

of the due process clause of the federal constitution.

1

The jurisdiction of the United States District Court for the

Western District of Pennsylvania was invoked pursuant to 28

U.S.C. §1331.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case concerns the Fifth Amendment to the United States

Constitution which provides, in pertinent part, that “No

person shall . . . be es, of life, liberty, or property,

without due process of law; .

This case also concerns Section 1291 of Title 28, U.S.C.,

which provides that “the courts of appeals shall have

jurisdiction of appeals from all final decisions of the district

courts of the United States ...”

STATEMENT OF THE CASE

Petitioners’ initial complaint was filed on December 21,

1995; their Amended Complaint was filed on April 2, 1996.

Petitioners are Robert W. Grine, II, Joanne D. Grine, and the

Estate of Margaret M. Grine; Defendants were William R.

Coombs; Billie M. Yost; Jack Shrum, et. ux.; Essex

Environmental Industries, Inc.; Rotocast Plastic Products,

Inc.; Tionesta Borough Council, Ronald hall, President of

Borough Council, in an individual and official capacity;

Scott Daum, Borough Manager of Tionesta, in an individual

and official capacity; Commonwealth of Pennsylvania,

Department of Environmental Protection; Daniel Holler,

Emergency Response Coordinator, Northwest Region, in an

individual and official capacity; Gary Wozniak, in an

individual and official capacity; United States of America

Environmental Protection and Michael McCabe, Regional

Administrator, Region III, U.S. EPA.

Petitioners brought suit under the Resource Conservation and

Recovery Act of 1976 (“RCRA”), 42 U.S.C. §6901 et. seq.,

the Federal Water Pollution Control Act (“Clean Water

Act”), 33 U.S.C. §1251 et. seg., and the Comprehensive

Environmental Response, Compensation, and Liabilities Act

of 1980 (“CERCLA”), 42 U.S. C. §9601 et. seq., as amended

by the Superfund Amendments and Reauthorization act of

1986. Petitioners also brought suit against the US EPA and

its Region III Director under the Freedom of Information

Act, 5 U.S.C. §552. The Amended Complaint also assets

causes of action under the state common-law theories of

intentional infliction of emotional distress, trespass, nuisance

and strict liability, as well as a claim pursuant to the

Pennsylvania Hazardous Sites Cleanup Act (“PHSCA”), 35

Pa. Stat. Tit. 35, §6020.101 et seq.

4

Petitioners were the victims of rogue or midnight dumping of

acutely hazardous toxic substances transported in federally-

licensed overpack drums abandoned in close proximity to

their home and private water supply. After they sued

individual owners of the site, transporters, corporate entities

who generated the waste, and government agencies which

had failed to invewtigate the nature and extent of the

contamination, Petitioners became the targets of a grand jury

convened to investigate the commission of an environmental

crime, and were surveilled by federal agents.

All Defendants, including the U.S. EPA in the person of its

agents on the site, are in violation of the Resource

Conservation and Recovery Act of 1976 (“RCRA”), 42

U.S.C. §6901 et seg., and disposed of or caused other to

dispose of waste materials on the Coombs site; the matenal

so disposed of was defined by law to be a hazardous waste.

The federal Defendants knew that the wastes had the

potential to be harmful to others or to the environment;

Defendants knew that the wastes site did not have a permit or

interim status authorizing treatment, storage or disposal of

hazardous wastes. The U.S. EPA possessed the authority to

abate illegal activity on the Coombs site, and failed to end

such activities.

All Defendants, and others as yet unknown to Plaintiffs,

knowingly conspired and agreed together to dispose of

hazardous wastes without a permit, in violation of RCRA.

All Defendants knowingly disposed of and caused,

counseled, commanded, induced and procured the knowing

disposal of hazardous wastes as defined in 40 CFR 261.10 et

seq.

Plaintiffs sued all Defendants as owner or operators of an

unpermitted facility, as that term is defined in §101(9) of the

5

Comprehensive Environmental Response and Liability Act

of 1980, 42 U.S.C.A. §9601 et seq., as amended by both the

Superfund Amendments and Reauthorization Act of 1986,

and as arrangers for the disposal of hazardous substances.

Plaintiffs sued Defendants U.S. EPA under the Freedom of

Information Act, as amended, (5 U.S.C. §552(a)(4)(h), and

sought injunctive relief against the United States. Plaintiffs

also asked for attorneys’ fees and costs.

Plaintiffs requested consequential and punitive, special and

incidental damages, plus attorneys’ fees and costs, from all

Defendants, and also requested injunctive and declaratory

relief. Plaintiffs requested that court fines be assessed

against all Defendants; Plaintiffs asked that they be awarded

any and such other legal and equitable relief as the court

deemed proper.

On August 13, 1996, the U.S. EPA motioned for summary

judgement on Plaintiffs FOIA claims. On August 19, 1996,

the U.S. EPA filed a motion to dismiss certain claims in the

Plaintiffs’ Amended Complaint. They also filed a brief in

opposition to Plaintiffs’ Motion for Writ of Mandamus. U.S.

EPA’s Motion for Summary Judgement was granted in part,

but with respect to certain claims the motion was taken under

advisement by the district court.

On December 27, 1996, the district court granted the United

States’ Motion to Dismiss the Amended Complaint and the

Petition for Writ of Mandamus. On December 18, 1997,

Petitioners motioned for an order adjudging the U.S. EPA

and the PA DEP in civil contempt. Petitioners filed a motion

for reconsideration of the order of December 27, 1996, and

the order of February 9, 1998, on March 10, 1998. The

6

district court issued an order limiting the scope of a contempt

hearing in relation to the U.S. EPA on August 25, 1998.

Petitioners’ Motion for Reconsideration of the district court’s

order of December 27, 1996 was denied by the district court

on February 27, 2001.

Plaintiffs’ Motion for Reconsideration of the order of

August 25, 1998, was filed on February 26, 2001 and denied

by the district court on May 2, 2001.

At the conclusion of the hearing of September 19, 2001, the

district court judge granted the federal motion for Rule 54(b)

certification of the order granting the United States Motion

to dismiss the Amended Complaint. The district court

directed the entry of a final “judgement” dismissing all

claims against the U.S. EPA.

The district court judge then purported to stay “enforcement”

of the order of dismissal until the end of the case, pursuant to

Fed. R.C.P. Rule 62(h).

(On October 22, 2001, the order of September 19, 2001 was

entered into the record by the district court.) On October 30,

2001, the Petitioners filed a notice of appeal from the final

order of the United States District court for the Western

District of Pennsylvania at No. 95-CV-342, as initially

entered on December 27, 1996, and certified as a final order

in accordance with Rule 54(b) on September 19, 2001.

REASONS FOR GRANTING THE WRIT

I. The decision of the Third Circuit Court of

Appeals conflicts with this Court’s precedents and

with settled law in the Third Circuit.

The Court of Appeals has erred in ruling that it lacks subject-

matter jurisdiction over an appeal as of right from a final

order. The rule of finality is not subject to a judicially

created exception at the district court level through the

district court’s improper reliance on Fed. R. Civ. Proc. Rule

62(h), in conjunction with a Rule 54(b) certificate of finality.

The district court has successfully eliminated plaintiffs’ right

to take an immediate appeal from an order certified in

accordance with Rule 54(b) as a final order.

The court has also successfully insulated its order from

review or reconsideration before an end-of-case judgement

because its order has lost its interlocutory status, even though

it is protected from review.

The district court has thus entered an order that cannot be

challenged on any grounds whatsoever until judgement day.

Rule 54(b) certification of an order for immediate appeal

makes such an order appealable as of right, and reliance on

Rule 62(h) does not invalidate Rule 54(b) on this point.

“The requirement in Rule 54(b) that the court make an

express determination that there is no just reason for

delaying the review of a judgement on fewer than all the

claims ... eliminates any doubt whether an immediate appeal

may be sought.” Fed. Practice & Procedure, Wright, Miller

8

& Kane, Civil 2"! §2254, p. 38. (Emphasis supplied,

footnote omitted.)

Rule 54(b) “provides an opportunity for litigants to obtain

from the District Court a clear statement of what the court is

intending with reference to finality ...” ~Dickensen_v.

Petroleum Conversion Corp., 70 S. Ct. 322, 324 (1950).

The Court of Appeals must accept jurisdiction over an appeal

if it is satisfied that the district court’s order is properly

before it; 28 U.S.C.S. §1291.

Because the Rule 27 motion as framed by the federal

appellees implicated the scope of the court’s appellate

jurisdiction, it was incumbent on the Court of Appeals to

establish the propriety of the district court’s certification of

its own order for immediate appeal, pursuant to Rule 54(b).

Since the appellate court never sought to review or disturb

the certificate of finality, the district court’s certified order

can sustain an appeal.

The appellate court made no inquiry whatsoever of record to

determine if certification was proper, and let the entry of

certification pursuant to Rule 54(b) stand undisturbed as

executed by the district court judge. Thus, the Court of

Appeals did not restore the interlocutory character of the

district court judge’s adjudication. The scope of appellate

jurisdiction was never delineated by the appellate court

through meaningful review of the record (or through

anything approaching meaningful review of the propriety of

the certification.)

The Court of Appeals in the guise of dealing summarily with

the Rule 27 motion submitted by the federal appellees did

nothing to disturb the district court’s Rule 54(b) certification.

9

The Court of Appeals thus let stand the district court’s

adjudication pursuant to Rule 54(b). Because the Court of

Appeals’ appellate jurisdiction is strictly a matter of statute,

Congress’s determination that Courts of Appeal should hear

only final orders is conclusive. Bensalem v. Am. Fidelity

Fire Ins. Co., 644 F.2d 990 (3 Cir 1981). If the district

court properly made its Rule 54 certification, the Court of

Appeals must then exercise jurisdiction over the appeal. Del.

Valley Citizens Council for Clean Air v. Davis, 932 F.2d 256

(3 Cir. 1991). In this case, the Court of Appeals never

considered the propriety of the rule 54(b) certification, even

though certification implicated the scope of its jurisdiction.

As this Court unambiguously stated in Delaware Valley, if

the district court properly certified its orders as final

judgements for purposes of appeal, the Court must then

exercise its jurisdiction over an appeal as of right.

Accordingly, the Court of Appeals has subject-matter

jurisdiction over this interlocutory appeal by virtue of the

district court’s certification and by virtue of the effect of 28

U.S.C.A. §1291. “If the district court properly made that

certification, we must then exercise jurisdiction over this

appeal pursuant to 28 U.S.C.A. §1291 (West. Supp. 1990).

See Curtiss-Wright Corp. v. General Electric Co., 446 US.

1, 8, 100 S. Ct. 1460, 1465, 64 L.Ed.2d 1 (1980); Culbreth v.

Amosa (Pty) Ltd., 898 F.2d 13, 14 (3 Cir. per curiam)).”

Delaware Valley, at 263.

Rule 62 cannot be utilized to limit the scope of appellate

jurisdiction as conferred on the Courts of Appeal by statute.

Rule 62(h), Stay_of judgement as to Multiple Claims or

Multiple Parties, states only that “when a court has ordered a

final judgement under the conditions stated in Rule 54(b),

10

the court may stay enforcement of that order until the

entering of a subsequent judgement or judgements and may

prescribed such conditions as are necessary to secure the

benefit thereof to the party in whose favor the judgement is

entered.” Rule 62(h) can only be utilized to stay execution

of a judgement made on the merits.

In Curtiss-Wright Corp. v. General Electric Company, 100 S.

Ct. 1460 (1980), the order that was certified was the district

court’s granting of summary judgement on the merits of a

nineteen-million dollar claim for balance due on specific

contracts. Ftn. 3 in Curtiss-Wright means what it says: “We

note that Federal Rule of Civil Procedure 62(h) allows a

court certifying a judgement under Rule 54(b) to stay its

enforcement until the entering of a subsequent judgement or

judgements.” (Emphasis supplied.) Rule 62(h) has never

been used in Curtiss-Wright or any other case to stay an

appeal as of right from a final order invoking statutory and

constitutional grants of jurisdiction to an Article III court.

The district court judge who dismissed appellants’ complaint

for lack of jurisdiction over the subject-matter had no power

to enter a subsequent judgement on the merits and no power

to execute on a judgement. He could not “enforce” an order

dismissing claims in the amended complaint for lack of

jurisdiction.

“Without jurisdiction, the court cannot proceed at all in any

course. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is

that of announcing the fact and dismissing the cause.” Ex

parte McCardle, 7 Wall. 506, 514, 19 L.Ed 264 (1869), cited

in Steel Co. v. Citizens for Better Envir., 140 L.Ed.2d 210,

227 (1998). And see: Mansfield, C. & L.M.R. Co. v. Swan,

111 U.S. 379, 382, 28 L.Ed 462 (1884).

11

The Court of Appeals has never concluded (certainly not

through its summary disposition of a Rule 27 motion without

explanation or opinion) that the district court orders as

certified pursuant to Rule 54(b) are not final orders within

the meaning of §1291, with regard to the claims to which

they apply.

This is improper when the Court of Appeals is purporting to

deal with a query as to the scope of its jurisdiction. The

district court thus madé its adjudication final when it

executed its certificate in light of the appellate court’s failure

(or its refusal) to review the propriety of certification de

novo.

The Court of Appeals never determined (other than

summarily, and off the record) whether the district court’s

certification had the requisite aspects of finality. Such a

review is mandatory in order to establish the scope of

appellate jurisdiction. This is a deprivation of the appellants’

rights of due process. The district court made its

adjudications final when it executed its certificate.

Petitioners have the same right to take an appeal as any other

litigants in this system. No viable exception to the scope of

appellate jurisdiction has been drafted by the district court,

by the federal appellees, or by this Court.

Because appellants have been summarily denied their right

to take an appeal from a final order, within the meaning of

28 U.S.C.A. §1291, they have been denied their due process

right of meaningful access to the courts. The Court’s

summary dismissal of this appeal from a final order is

constitutionally defective.

12

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Dated: ! Ws 207, 2002

Respectfully,

-

J S. Haagense

Counsel of Record

349 New Road

Enon Valley, PA 16120

Telephone: (724) 336-5962

13

Appendix A

Appendix B

APPENDIX

Summary Decision of Third

Circuit Court of Appeals

Granting the United States’

Rule 27 Motion to Dismiss the

Petitioners’ Appeal for Lack of

Subject-Matter Jurisdiction

Summary Decision of the

Third Circuit Court of Appeals

Denying the _ timely-filed

Petition for Rehearing

14

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

January 25, 2002

D-43

Docket No. 01-4118

ROBERT W. GRINE, JOANNE D. GRINE

And MARGARET M. GRINE, Appellants

vs

WILLIAM R. COOMBS, ET AL.

(Western District Civil No. 95-cv-00342) (SJM)

Present: NYGAARD, ROTH and BARRY Circuit

Judges

(1) Motion of Federal Appellees for Dismissal of Appeal

for Lack of Appellate Jurisdiction;

(2) Appellants’ Response to Appellees’ Rule 27 Motion

for Summary Dismissal of Appeal for Lack of

Appellate Jurisdiction;

(3) Motion by Federal Appellees for Leave to File Reply

to Response to Motion to Dismiss Out of Time;

(4) Reply of Federal Appellees to Response of Appellant

to Motion to Dismiss Appeal for Lack of Appellate

Jurisdiction, not filed unless the Court so directs.

Dana Moore Case Mgr.

(267) 299-4927

Copy of Clerk’s 1/16/02 Order

Sent for Court’s Information.

ORDER

The foregoing motion to dismiss is granted. The motion to

file the reply out of time is denied as moot.

Dated: Feb. 27, 2002 By the Court,

DMM/cc: Janice S. Haagensen, Esq.

Bonnie R. Schlueter, Esq. Circuit Judge

Russell F. Smith, III, Esq.

APPENDIX A

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-4418

ROBERT W. GRINE II; JOANNE D. GRINE;

ESTATE OF MARGARET M. GRINE,

Appellants

v.

BILLIE M. YOST; JACK W. SHRUM, ET UX; ROTOCAST

PLASTIC PRODUCTS; ESSEX ENVIRONMENTAL

INDUSTRIES, INC.; TIONESTA BOROUGH COUNCIL OF

FORREST COUNTY; RONALD HALL, President of Borou

Council, in an individual and official ity; SCOTT DA

BOROUGH MANAGER OF TIONES in an individual an

official capacity, COMMONWEALTH OF PENNSYLVANIA

DEPAR OF ENVIRONMENTAL PROTECTION

(“DEP”); GARY WOZNIAK, in an individual and official

capacity as an agent of the DEP; DANIEL HOLLER, Emergency

esponse Coordinator, Northwest Region, in an individual and

P; RONALD W.

po

official capacity, as an agent of the D

COOMBS, Executor of the Estate of WILLIAM R. COOMBS,

DECEASED; MICHAEL MCCABE, Re ional Administrator,

Region III, U.S. EPA; UNITED STATES OF AMERICA

E ONMENTAL PROTECTION AGENCY (EPA);

On Appeal from the United States District Court for the Western

District of Pennsylvania

(D.C. Civ. No. 95-cv-00342)

SUR PETITION FOR REHEARING

BEFORE: BECKER, Chief Judge.

ALITO, ROTH, MCKEE,

SLOVITER, SCIRICA, NYG

RENDELL, BARRY, AMBRO and FUENTES, Circuit Judges

APPENDIX B

The Petition for rehearing filed the Appellant in the above-entitled

matter, having been submitted to the judges who participated in

the decision of this court and to all other available circuit judges in

regular active service, and no judge who concurred in the decision

having asked for rehearing, and a mabey of the circuit judges in

regular active service, and no judge who concurred in the

decisions having asked for rehearing, and a majority of the circuit

judges in regular active service not having voted for rehearing by

this court en banc, the Petition for Rehearing is hereby DENIED.

It is so ordered. |

By the Court,

—_

United States Circuit Judge

DATE: April 23, 2002

DMM<ccc: Janice S. Haagensen, Esq.

Russell! F. Smith, III, Esq.

Bonnie r. Schlueter, Esq.

Received and Filed

4-23-02 DM

Marcia M. Waldron, Clerk