Opposition Brief — Grine v. Coombs

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OCT15 2992

No. 02-218 ony

In the Supreme Court of the mted States

ROBERT W. GRINE, JOANNE D. GRINE, AND ESTATE OF

MARGARET M. GRINE, PETITIONERS

VU.

WILLIAM R. COOMBS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

GREER S. GOLDMAN

JOHN T. STAHR

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

{

Ne pr pene

ead

QUESTION PRESENTED

Whether the court of appeals erred in dismissing pe-

titioners’ appeal for lack of jurisdiction.

(I)

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Black v. Cutter Labs., 351 U.S. 292 (1956) ...c.c.c.cscecesseseeee

Bulldog Trucking, Inc., In re., 66 F.3d 1390 (4th

California v. Rooney, 483 U.S. 307 (1987) ...c.cccsecesecceseseee

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Bg Pe See OT CLEP Saisiihinsssicecsncsscscsercossaveviernsonacsetesseres

Curtiss-Wright Corp. v. General Elec. Co., 446 U.S.

SF RUMITTE cencttcsnittinssscaseivelaestvateniebondudobooninvinonvesaevsvetocesvovevecens

Delaware Valley Citizens Council for Clean Air v.

Davis, 982 F.2d 256 (Sd Cir. 1991) ........c.cvscsssecesecosecesssssoese

Grine v. Coombs:

a aie chshnsabcbbalichjaendetiieeaniorsenmrecvece’

RN IIE isn ccsiatniobaceseisininbsaiGuevivebioesencierieiooieee

I NN I IIIT ase casinsnoencantensoecncsesainsesaveonscuncsoseoneovensee

National Smelting of New Jersey, Inc. Bondholders’

Litigation, In re., 695 F. Supp. 796 (D.N.J.

SP UEET: heseiiilbentaeiibssiscadetithnleehetniidcséabcinsrilnsecndnsraaveniasemenoves

National Treasury Employees Union v. FLRA, 712

AE RII SEs BURIED Sa sissiisvnsnisacssctssspncceseesenenmssiresseosieves

PUTIN eibsecicdaltilicdiiaitiacssakceaninibenisstivesysasitadacacisenitamesninneioveeosoes

Wisconsin Liquor Co. v. Park & Tilford Distillers

Corp., 267 F.2d 928 (7th Cir. 1959) ...scccccccssssssssssssssssssessee

Ziegler Chem. & Mineral Corp. v. American

Gilsonite Co., 332 F.2d 668 (9th Cir. 1964) ....cccccccccccceeeee

(IIT)

SOPH E OEE H EEE HEHE EEE E EH OSTEO EEE EEHEEEES EOE ESOEE TEES ESSE SESE SEES EOE E EE ESS

PORTH HEH EE ET THOT ETE H TOE H EEE O EEE ETE TOTES ESTE EE EEH OSES E ESTE ESE SESE SESE SEES ESSE EEE EES

SOT H HEE E HA EE HT ETEH EHH ETESE EOE HE SESE EEE EE ESET EEE OEE HESS OE SE SEH EEE EOE SESE SESE EEE OEES

SORE H EEE E EEE TET EE EET OE EEE E ESTEE SEO EE EEE EE ESEEEESES TEETER EEE CERES EE EEE EEE S EEE OEES

SEPA O HEE H EE EEE EEE TEO EEO E EEE EEEOE EES E SESE EE HOES EEE ESEEEE ES EEE EEEE SES EEEONESEE EES

Cor nt = =

Statutes and rules: Page

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9601

Cb BOG. covrersevecervesrenonransnsesenonsenennvesonsesseunesoeoessnnneenseneesconsoneneooosees 2

Freedom of Information Act, 5 U.S.C. 552 wo. eeeeeeeeees 2

Resource Conservation and Recovery Act of 1976,

CB ERs, FIRE RODE, ccrrcitcinaiiviintinimmmmimennimmnncin 2

Water Pollution Control Act, 33 U.S.C. 1251

06 BOR. ceveciceeryninivinrinnnaniemiensmnmnatenainsininnntanet evicioneennnnvacinncannes 2

Pennsylvania Hazardous Sites Cleanup Act, 35 Pa.

Cons. Stat. Ann. §§ 6020.101 et seg. (West 1998)............... 2

Beam. Ge, EE. RID sccceinsnisanseeinntiviarenincreininnmninaniiviptieitichnhsinctartigens 8

Fed. R. Civ. P.:

SOI MIE sicsisisneiiitibacsbentochthcebieisieilanscccinigiilictiinicgti 3, 4, 5, 6, 7,

AGVIROTY COTTA HOED cccecenvssesesereeinecsensstnsaseenereeninennien

UI ID <incesicnnrniiitrliansinn setacsithiiianailelevitvaiiaclinbadiiom 8

NE EE siicicssnirsniitaisinidieanniiniisiteininmnebininindianins 3, 4, 5, 6,

AGViBOry COMMILLSE MOLE .......cecrecccserecenscesoserereerereseseorers

Jn the Supreme Court of the Anited States

No. 02-218

ROBERT W. GRINE, JOANNE D. GRINE, AND ESTATE OF

MARGARET M. GRINE, PETITIONERS

VU.

WILLIAM R. COOMBS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. Al) is

unreported. The order of the district court is unre-

ported.

| JURISDICTION

The decision of the court of appeals was entered on

February 27, 2002. A petition for rehearing was denied

on April 23, 2002 (Pet. App. B1-B2). The petition for a

writ of certiorari was filed on July 19, 2002. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

This is the fourth time petitioners have filed a

petition for a writ of certiorari in this case against

multiple private parties and federal, state, and local

governments.’ In addition, since the initiation of this

litigation, petitioners have: (1) appealed the district

court’s decision to the court of appeals seven times; (2)

sought and been denied rehearing and rehearing en

banc numerous times; and (3) sought and been denied a

writ of mandamus removing the trial judge from the

matter. The litigation against the private defendants is

still unresolved in the district court.

1. Petitioners filed suit in 1995 in federal district

court against multiple private parties and federal, state,

and local government defendants. Petitioners allege

that hazardous waste migrated to their property from

barrels on an adjacent tract, damaging their land and

living environment. In April 1996, they amended their

complaint to assert claims under the Resource Conser-

vation and Recovery Act of 1976, 42 U.S.C. 6901 et seq.,

the Water Pollution Control Act, 33 U.S.C. 1251 et seq.,

the Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9601 et seq.,

state common law, and the Pennsylvania Hazardous

Sites Cleanup Act, 35 Pa. Cons. Stat. Ann. §§ 6020.101

et seq. (West 1993).

In their amended complaint, petitioners added the

United States Environmental Protection Agency

(EPA) as a defendant. Petitioners charged, inter alia,

that the EPA had violated the Freedom of Information

Act (FOIA), 5 U.S.C. 552, by failing to disclose certain

documents. After numerous motions and hearings

1 See Grine v. Coombs, 532 U.S. 1021 (2001); Grine v. Coombs,

528 U.S. 1160 (2000); Grine v. Coombs, 526 U.S. 1117 (1999).

regarding petitioners’ claims against the EPA, the

district court held a final hearing on the remaining

FOIA claims and a motion for contempt that petitioners

had filed against the EPA. On September 19, 2001, the

court issued a decision from the bench in which it found

- that the EPA had fully satisfied its obligations under

FOIA and that there was “an utter lack of evidence”

that the EPA was in civil contempt. 9/19/01 Tr. 1-20.

At the end of the hearing, the court granted the EPA’s

motion for certification under Federal Rule of Civil

Procedure 54(b) of its order granting the EPA’s motion

to dismiss petitioners’ amended complaint. Rule 54(b)

reads in relevant part:

When more than one claim for relief is pre-

sented in an action, whether as a claim,

counterclaim, cross-claim, or third-party claim,

or when multiple parties are involved, the court

may direct the entry of a final judgment as to

one or more but fewer than all of the claims or

parties only upon an express determination that

' there is no just reason for delay and upon an

express direction for the entry of judgment.

* * *

Fed R. Civ. P. 54(b). On October 22, 2001, the district

court entered an order memorializing its September 19

bench decision granting the EPA’s motion for Rule

54(b) certification.

The district court certified the judgment under Rule

54(b) because, as the court found, the “equities do tip in

favor of certification.” 9/19/01 Tr. 24. The court also

found that petitioners’ claims against the EPA were

“distinct” from those asserted against the other de-

fendants, rendering duplicative work in the court of

appeals unlikely. Jbid.

At the same time, the court stayed enforcement of

that judgment under Federal Rule of Civil Procedure

62(h), so as to “completely foreclose any possibility of

scattered appeals.” 9/19/01 Tr. 24 (quoting Jn re

National Smelting of New Jersey, Inc. Bondholders’

Litigation, 695 F. Supp. 796, 799 (D.N.J. 1988)). Rule

62(h) provides:

When a court has ordered a final judgment

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

court may stay enforcement of that judgment

until the entering of a subsequent judgment or

judgments and may prescribe such conditions as

are necessary to secure the benefit thereof to

the party in whose favor the judgment is en-

tered.

Fed R. Civ. P. 62(h). The court explained that the Rule

54(b) certification and simultaneous Rule 62(h) stay of

enforcement would serve to “finalize the judgments

* * * for the purposes of any further action in this case

at this level and insure that any appeals from judg-

ments in this case will be simultaneously heard.”

9/19/01 Tr. 25 (quoting National Smelting, 695 F. Supp.

at 800). |

2. On October 30, 2001, petitioners filed a notice of

appeal of the district court’s final order. In a summary

order dated February 27, 2002, the court of appeals

granted the EPA’s motion to dismiss for lack of appel-

late jurisdiction. Pet. App. Al. A petition for rehearing

was denied, again without opinion, on April 23, 2002.

Id. at B1-B2.

ARGUMENT

The unreported, summary order of the court of

appeals dismissing petitioners’ appeal for lack of juris-

diction does not warrant review by this Court. The

decision has no precedential effect, establishes no con-

flict, and reaches the proper result.

1. It is well settled that “the district court is

permitted to determine, in the first instance, the appro-

priate time when each ‘final decision’ upon ‘one or more

but less than all’ of the claims in a multiple claims action

is ready for appeal.” Sears, Roebuck & Co. v. Mackey,

351 U.S. 427, 435 (1956). In that capacity, the district

court acts as “dispatcher” to the court of appeals. Jd. at

435-437. This Court has reiterated that rule, stressing

that “{i]t is left to the sound judicial discretion of the

district court to determine the ‘appropriate time’ when

each final decision in a multiple claims action is ready

for appeal.” Curtiss-Wright Corp. v. General Elec. Co.,

446 U.S. 1, 8 (1980).

In Curtiss-Wright, this Court reaffirmed both the

requirement that district courts heed the general policy

against piecemeal appeals and the discretion owed to

trial court determinations under Rule 54(b). 446 U.S. at

8. Accordingly, an appellate court in Rule 54(b) cases

must ensure that the “juridical concern{]}” of “prevent-

[ing] piecemeal appeals” is met, and must give the

district courts’ discretionary judgments “substantial

deference.” Jd. at 10.

Here, the district court found that it was appropriate

to prevent piecemeal appeals. As noted above, many

issues remain to be resolved among numerous other

parties. By issuing a stay of the judgment under Rule

62(h) after certifying it under Rule 54(b), the court

sought to “finalize the judgments * * * for the

purposes of any further action in this case at this level

and insure that any appeals from judgments in this case

will be simultaneously heard.” 9/19/01 Tr. 25 (quoting

National Smelting, 695 F. Supp. at 800, and citing

Curtiss-Wright, 446 U.S. at 13 n.3).

Petitioners do not dispute the legitimacy of the

district court’s determination that piecemeal appeals

would not be appropriate. Rather, they contend that

the mechanism employed by the district court to

effectuate that determination was flawed and denied

them due process. In particular, they note that Rule

62(h) allows for delaying the enforcement of judgments

pending the resolution of other claims in the district

court, not for preventing piecemeal appeals. Rule 62(h)

is indeed a stay of enforcement, not appealability. See

Fed. R. Civ. P. 62(h) advisory committee’s note. The

D.C. Circuit has noted that stays under Rule 62 “do not

impede appeals from the stayed dispositive order; their

sole purpose is to preserve the status quo while an

appeal is in the offing or in progress.” National

Treasury Employees Union v. FLRA, 712 F.2d 669, 671

(D.C. Cir. 1983). Similarly, other courts of appeals, in

reviewing judgments stayed under Rule 62(h), have

proceeded with the understanding that a stay under

Rule 62(h) subsequent to Rule 54(b) certification does

not interfere with the appealability of that judgment.

See In re Bulldog Trucking, Inc., 66 .F.3d 1390, 1392-

1393 (4th Cir. 1995); Ziegler Chem. & Mineral Corp. v.

American Gilsonite Co., 332 F.2d 668, 669 (9th Cir.

1964); Wisconsin Liquor Co. v. Park & Tilford

Distillers Corp., 267 F.2d 928, 933 (7th Cir. 1959). See

also Delaware Valley Citizens Council for Clean Air v.

Davis, 932 F.2d 256, 263 (8d Cir. 1991) (observing that

“{ilf the district court properly made [the Rule 54(b)]

certification, we must then exercise jurisdiction over

this appeal”).’

It is not, however, the district court’s order of which

petitioners seek review in this Court. Rather, they

seek review of the judgment of the court of appeals.

That judgment, which dismissed petitioners’ appeal for

lack of jurisdiction, was correct. A court of appeals

lacks jurisdiction over an improperly certified appeal.

See Sears, Roebuck & Co., 351 U.S. at 486. And cer-

tification is improper where, as here, the district court

has decided against allowing an immediate appeal

because piecemeal appeals would be inappropriate in

view of the large number of appeals already brought by

petitioners. In other words, where a trial court

determines that an immediate appeal is inappropriate

and then empowers the losing party to appeal by

certifying a judgment under Rule 54(b), the court of

appeals may properly conclude that the lower court

should not have acted in such a self-defeating manner.’

Petitioners do not cite a single case in which a court

of appeals decided to exercise jurisdiction where a

2 Rather than issuing a Rule 62(h) stay, therefore, the district

court should have executed its decision to prevent piecemeal

appeals by denying certification on the ground that the importance

of precluding multiple appeals outweighed the equities. See

Curtiss-Wright, 446 U.S. at 8 (discussing need to balance “equities”

against “judicial administrative interests”); Fed. R. Civ. P. 54(b)

advisory committee’s note.

8 In the court of appeals, we argued that the court should

dismiss for lack of jurisdiction on the ground that the district

court’s Rule 62(h) stay precluded appellate jurisdiction. Although

dismissal was the correct disposition, we now believe that the

better reason for that result is that it was error for the district

court to certify despite its determination that an immediate appeal

would be inappropriate.

district court certified despite its decision that an

immediate appeal should not lie. We are aware of none.

The court of appeals, moreover, did not explain why it

was dismissing for lack of jurisdiction. It thus did not

announce a holding that conflicts with the decision of

any other court of appeals. Review by this Court is,

accordingly, unnecessary. See Sup. Ct. R. 10(a). :

2. Even if it were assumed that the court of appeals

relied on erroneous reasoning, this case still would not

warrant further review. “This Court ‘reviews judg-

ments, not statements in opinions.’” California v.

Rooney, 483 U.S. 307, 311 (1987) (per curiam) (quoting

Black v. Cutter Labs., 351 U.S. 292, 297 (1956)); see

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984). Because the judgment of the

court of appeals here was correct, review by this Court

is not warranted.

Further, petitioners are not aggrieved by the court of

appeals’ decision. They did not seek Rule 54(b) certi-

fication; rather, the EPA did. Accordingly, they never

sought the very ability to bring a separate appeal that

was denied. At issue here is not whether petitioners

will be able to appeal, but rather when they may do so.

Petitioners have no due process right to an immediate

appeal, particularly in this situation where the district

court clearly could (and should) have denied a Rule

54(b) certification.‘

4 Nor is there any basis for petitioners to complain that they

are aggrieved by their inability to litigate further against the EPA

in the trial court. They have already done so extensively through

numerous filings, motions, and hearings. See Pet. 4-7. And they

may still move in the district court for relief from judgment under

Federal Rule of Civil Procedure 60(b). In short, petitioners are

currently in the same position they would have been in had the

district court refused to certify.

Thus, petitioners’ claim (Pet. 12) that “they have

been denied their due process right of meaningful

access to the courts” is without merit. Petitioners ex-

plain neither how they have been denied due process

when they can appeal the judgment in favor of the EPA

after all issues in the case have been resolved, nor why

due process entitles them to bring an appeal prior to

that time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.