Reply Brief — Grine v. Coombs

No. 02-218

THE CLERK

esi

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

Petitioners

¥.

William R. Coombs; et al.

On Petition for a Writ of Certiorari

To the Third Circuit Court of Appeals

REPLY BRIEF

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, and without

disturbing the Propriety of the district court's

execution of certification?

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases d

Cold Metal Process Co. v. United Engineering

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

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Delaware Valley Citizens Council for Clean Air v.

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Ebrahimi v. City of Huntsville Bd of Education,

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National Union Fire Ins. Co. v. City Sav., F.S.B.,

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Statutes and rules

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Comprehensive Environmental Response,

Compensation, and Liability Act of

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

Resource Conservation and Recovery Act

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Fed R. Civ. P.:

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IN THE

SUPREME COURT of the UNITED STATES

No. 02-218

Robert D. Grine, Joanne D. Grine, and Estate of

Margaret M. Grine, Petitioners

VS.

William R. Coombs, et al.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

Petitioners’ Reply Brief

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.

The appellate order summarily denying the Petitioners’

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

2002.

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JURISDICTION

The jurisdiction of this Court is invoked under 28 US.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.

The jurisdiction of the United States District Court for

the Western District of Pennsylvania was invoked pursuant

to 28 U.S.C. §1331.

STATEMENT

Petitioners will not reiterate here the bulk of their

statement of the case as detailed in their J uly-filed petition

for certiorari, but do wish to reemphasize that in their

Amended Complaint they brought suit against the U.S. EPA

for violations of the Resource Conservation and Recovery

Act of 1976 (“RCRA”), 42 U.S.C. §6901 et seg. and for

violations of the Comprehensive Environmental Response

and Liability Act of 1980, 42 U.S.C.A. §9601 et seq., as

amended by the Superfund Amendments and

Reauthorization Act of 1986. Petitioners also sued the US.

EPA for its violation of the Freedom of Information Act, 5

U.S.C. §552.

ARGUMENT

The federal appellees have made a startling concession in

their brief in opposition as to the correctness of their prior

argument presented in their Rule 27 Motion. Since such a

confession is fresh, it needs to be discussed at the first

opportunity. To begin with, the summary order of the Third

Circuit Court of Appeals dismissing the petitioners’ appeal

from a certified order for lack of subject-matter jurisdiction

is constitutionally defective and has resulted in the

deprivation of the petitioners’ substantive and procedural

rights to due process of law. Review by this court is thus

warranted.

The federal appellees argued strenuously in their Rule 27

Motion, as submitted to the Third Circuit, that the appellate

court should dismiss petitioners’ appeal for lack of subject-

matter jurisdiction because the district court judge could

prohibit an immediate appeal as of right from a certified

order in reliance on Rule 62(h). The federal appellees knew

that this argument was specious when they made it. As they

have accurately reflected in their brief in Opposition to the

petition for certiorari, “. . . a stay under rule 62(h)

subsequent to Rule 54(b) certification does not interfere with

the appealability of that judgement.” Fed. Brief at 6

(citations omitted).

The federal appellees should have completed their legal

research before and not after they submitted their Rule 27

motion to the Court of Appeals.

A fatally flawed argument was both presented and

embraced in bad faith (and in bad taste) by the federal

appellees. The Third Circuit did nothing to signify its

awareness of the impropriety of this argument; instead it

ruled in favor of the federal appellees.

The Court of Appeals summarily (ie., without

explanation) granted the federal appellees’ Rule 27 motion

to dismiss the appeal for lack of subject-mater jurisdiction.

The Court of Appeals never made the slightest attempt to

assess the validity of the certification executed by the district

court judge, and never acknowledged that prohibition of an

3

appeal subsequent to certification was truly unprecedented;

i.e., unheard of. As petitioners have said before, the rule of

finality is not subject to a judicially created exception at the

district court level though the district court's improper

reliance on Rule 62(h), in conjunction with a Rule 54(b)

certificate of finality.

As the appellate court unambiguously stated in

Delaware Valley, (Delaware Valley Citizens Council for

Clean Air v. Davis, 932 F.2d 256 (34 Cir. 1991)), 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.

Although it is late in the day, the federal appellees in

their brief have recognized the wisdom of this position: See

Fed. Brief at 6, 7: . . .”[I]f the district court properly made

[the Rule 54(b)] certification, we must then exercise

jurisdiction over this appeal.” Delaware Valley, at 263.

And, as this Court has held, “[I]f the District Court certifies a

final order on a claim which arises out of the same

transaction and occurrence as pending claims, and the Court

of Appeals is satisfied that there has been no abuse of

discretion, the order is appealable.” Cold Metal Process Co.

v. United Engineering & Foundry Co., 76 S. Ct. 904, 100

L.Ed. 1311 (1956).

The Court of Appeals must consider the propriety of

Rule 54(b) certification because such certifications implicate

the scope of the court's appellate jurisdiction. See Ebrahimi

v. City of Huntsville Bd of Educ., 114 F.3d. 162 (11% Cir.

1997); Delaware Valley Citizens Council for Clean Air v.

Davis, 932 F.2d 256 (34 Cir. 1991): National Union Fire

Insurance Company v. City Sav., F.S.B., 28 F.3d 376 (3"4 Cir.

1994) as amended.

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. The Court of Appeals never made any finding

that the district court’s decision to certify was erroneous. It

never even considered the propriety of the Rule 54(b)

certification as executed by the district court. Such a review

4

was mandatory to establish the scope of appellate

jurisdiction. See Curtiss-Wright. Thus there is no

disposition made of record to indicate that the Court of

Appeals ever noticed or found that the district court orders

as certified pursuant to Rule 54(b) were not final orders

within the meaning of §1291.

The district court’s adjudication became final when it

executed its certificate. Without intervention by this court,

petitioners will be denied an immediate appeal as of right

from a standing final order, nor can petitioners ask for

review or reconsideration of an order that has lost its

interlocutory status, before an end-of-case judgement is

effected at some future date.

Petitioners have been stripped of both their right to take

an immediate appeal from a final order and their right to

challenge the order on an interlocutory basis prior to

judgement. The federal appellees are absolutely right when

they note there is no other case on the books in which the

district court judge certified an order prior to making the

decision to prevent an immediate appeal. (To this we say:

there is now.)

The Court of Appeals apparently dismissed for lack of

subject-matter jurisdiction because it approved of the federal

argument that the judge who executed the certification could

decide to block an appeal of the certified order. This is the

only possible explanation in view of the fact that the Court

did not challenge the propriety of the certification executed

in the district court. Petitioners are certainly not “in the

same position that they would have been in had the district

court refused to certify.” (Fed. Brief at 8; Ftn. 4.) Petitioners

have been denied due process because given the current

posture of this case, they are confronted with an inviolate

order which cannot be immediately appealed. Nor can it,

prior to judgement day, be challenged or its revision sought

because its true interlocutory character has never been

restored by the appellate court. The Court of Appeals has

not and does not intend to make the finding that it was error

for the district court to certify, or to determine that

immediate appeal could be precluded after certification.

5

The text of Rule 54(b) states the following:

(b) Judgement Upon Multiple Claims or Involving

Multiple Parties. When more than one claim for relief is

presented in an action, whether as a claim, counter-claim,

cross-claim, or third-party claim, or when multiple parties

are involved, the court may direct the entry of a final

judgement 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 judgement. In the absence of such

determination and direction, any order or other form of

decision, however designated, which adjudicates fewer than

all the claims or the rights and liabilities of fewer than all the

parties shall not terminate the action as to any of the claims

or parties, and the order or other form of decision is subject

to_revision at any time before the entry of judgement

adjudicating all the claims and the rights and liabilities of all

the parties. (Emphasis supplied.)

So long as the certification is undisturbed, the appellants

when they return to the district court cannot effect

reconsideration or revision of said order.

Subsequent to the filing of Petitioners writ of certiorari

on July 19, 2002, the petitioners motioned for clarification

from the Court of Appeals as to date of issuance of the

mandate. The Clerk of Court responded by personally

denying the motion and stating that “the appeal was

decided by an order on a motion and not by the entry of

final judgement.” See Exh. A, Denial of Appellant’s Rule 27

Motion for Correction of Record and Issuance of Mandate.

The Clerk stated that the Court had nothing to convey in the

form of a directive to the district court: “The purpose of the

mandate is to return jurisdiction back to the district court

and to convey any directives of the court of appeals to the

district court. Since this Court determined that it lacked

appellate jurisdiction over the appeal, neither of these

purposes would have been served by issuance of a

mandate.” The federal appellees appear to be under the

impression that the Court of Appeals did effect a judgement:

“. . .[T]hey [the Petitioners] seek review of the judgement of

6

the Court of Appeals. That judgement ... dismissed

petitioners’ appeal for lack of jurisdiction ...” Fed. Brief at 7.

This is a further illustration of the Court of Appeals’

intent to leave untouched the certification effected in the

district court and the district court’s decision to prohibit an

appeal as of right. Petitioners can neither take an immediate

appeal from the certified order nor can they challenge the

order on the grounds that it is interlocutory and open to

revision prior to judgement. The district court, with the

assistance of the federal appellees and the encouragement of

the court of appeals, has fashioned an order inaccessible to

any challenge from Petitioners. It is not inaccurate for

petitioners to say that a sacred cow is on the horizon.

Petitioners at the present time are unarmed against this

development. It was the clear duty of the reviewing court to

follow precedent; i.e., the appellate court was duty-bound to

assess the propriety of the trial court's certification and the

propriety of its attempt to eliminate an appeal subsequent to

its own certification of the challenged order. See Curtiss-

Wright. The Court of Appeals must scrutinize the district

court's evaluation of factors resulting in certification for

immediate appeal. It must also scrutinize the district court's

desire to eliminate an immediate appeal subsequent to

certification. The Court of Appeals was never ignorant of

the fact that certification cannot be executed by a district

court judge who intends to preclude an immediate appeal of

the certified order. Thus, the Court of Appeals could not

properly defer to the district court's judgement given its

knowledge that the district court sought to eliminate the

petitioners’ right to an immediate appeal from a final-order.

If the Court of Appeals dismissed the appeal for lack of

subject-matter jurisdiction because it liked the argument that

the district court judge could execute the certification and at

the same time eliminate the petitioners’ right to take an

immediate appeal, the Court erred. See Curtiss-Wright.

If the Court of Appeals believed that the certification was

flawed, it had a duty to reach this conclusion on the record,

and certainly was not free to defer to the defective reasoning

of the district court.

The federal appellees were deadly accurate in their

statement that “the court of appeals ... did not explain why

it was dismissing for lack of jurisdiction.” Fed. Brief at 8.

They were dead wrong in suggesting that this failure does

not create a conflict with other existing authority. On the

contrary, the Court of Appeals’ ruling is at war with every

other decision in this area that is still on the books, including

its own Third Circuit precedent and every Supreme Court

opinion yet written on this subject. Of course, petitioners

have not cited a case (other than this one) in which a court of

appeals exercised jurisdiction over a certified order despite a

district judge’s decision to eliminate an appeal. No such

case is on the books. The federal appellees, however, did

just that - they improperly relied on Curtiss-Wright for the

proposition that Rule 62(h) can be utilized subsequent to a

certification to preclude an appeal. Such a proposition

cannot be derived from any reading, fair or otherwise, of

Curtiss-Wright. The federal appellees have exhibited a lack

of remorse concerning the true character of the arguments

made in their Rule 27 motion. This leads petitioners to

wonder if the federal appellees were engaged in redneck fun

outside of the library when they first made this argument.

In any event, the federal appellees argued speciously that

the district court judge could execute a certificate of finality

pursuant to Rule 54(b) and swiftly eliminate the petitioner-

appellants’ right to take an immediate appeal through mere

allusion to Rule 62(h). This is nonsense.

No court in the land has held that a district court judge

can execute a certificate of finality and subsequently prohibit

an immediate appeal of the certified order. The Court of

Appeals accepted this flawed argument when it granted the

appellees Rule 27 motion to dismiss for lack of jurisdiction

over the appeal on grounds that the district court judge

could legitimately block an immediate appeal of his own

self-certified order.

The Court of Appeals in view of existing precedent knew

or should have known that this reasoning was dark and in

error.

In order to lose its statutory jurisdiction over an appeal

as of right from a final order, the appellate court had to

assess and disturb the district court certification. The Court

of Appeals did not and does not intend to challenge the

propriety of the district court certification and its clearly

unreasonable decision to prevent the petitioners from taking

an immediate appeal from a final order.

Unless and until this Court reviews the work of the court

of appeals, petitioners don’t have a horse in this race.

Without review of their writ by this Court, Petitioners have

as much hope of obtaining due process of law as they do of

summoning a unicorn out of the woods.

Petitioners are being beaten to death, in a legal sense,

while the appellate court is cold sober. The Third Circuit

Court of Appeals apparently does believe that it never had

jurisdiction over the appeal, even though the district court

executed a certificate of finality, which the Third Circuit

never disturbed. The conduct of the district court judge has

not been scrutinized by the Third Circuit; it has been

endorsed, as has the self-serving conduct of the federal

appellees.

The federal attitude is that the truth is not for everyone.

By no means is this a constitutional regime.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Jdnice Haagergen

Attorney for Petitioners

349 New Road

October 24th, 2002 Enon Valley, PA 16120

APPENDIX

APPENDIX A Clerk’s denial of

Petitioner-Appellants’

Rule 27 Motion for

Correction of Record

and Issuance of

Mandate

10

wie € PateTe past PRT ee Se ee

UNITED STATES COURT OF APPEALS

FOR THETHIRD CIRCUIT

No. 01-4118

Grine v. Coombs

To: Clerk

1) Appellant's Rule 27 Motion for Correction of Record

and Issuance of Mandate

The foregoing Motion is denied. The appeal was

decided by an order on a motion and not by the entry of a

formal judgment. Rule 41, Federal Rules of Appellate

Procedure, requires the issuance of a mandate only when a

formal judgment is entered. The purpose of the mandate is

to return jurisdiction back to the district court and to convey

any directives of the court of appeals to district court. Since

this Court determined that it lacked appellate jurisdiction

over the appeal, neither of those purposes would have been

served by issuance of a mandate.

The February 27, 2002 order dismissing the appeal was

certified to the district court on the date that it was issued.

Since this Court never had jurisdiction over the matter,

jurisdiction would not have been lost through the

certification of that order to the district court.

It is further noted that the issuance of a mandate has no

effect on the time deadlines for filing a petition for a writ of

certiorari. Rule 13.2, Supreme Court Rules.

Accordingly, no mandate has, or will, issue in the appeal

nor was one required.

For the Court,

/s/Marcia M. Waldron

Dated: August 29, 2002 Clerk

DMM/cc: Janice Haagensen, Esq. Received and Filed

Bonnie R. Schlueter, Esq. 8-29-02 DM

Russell F. Smith III, Esq. Marcia M. Waldon,

Clerk

APPENDIX A

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