BRIEF FOR RESPONDENTS IN NATIONAL MOOT COURT COMPETITION
1972-73/ HELTER SMELTER, INC., V . EFFIA PEEL,
IVA KOFF, HOWARD E, EISE, AND D , FOUEY YATES
CHARLES 0, GRIGSON
GROVER HARTT, III
WYNETTE J, HEWETT
NOTE:
THE TEAM USING THIS BRIEF PLACED SECOND IN REGIONAL COMPETITION
AND THUS PARTICIPATED IN COMPETITION FOR NATIONAL HONORS IN FINAL
ROUNDS HELD IN NEW YORK CLTY. FROM MORE THAN 120 LAW SCHOOLS ENTERED
IN THE COMPETITION, THIS BRIEF WAS SELECTED AS THE LLTH BEST BRIEF,
No. 0001
IN THE
SUPREME COURT OP, THE UNITED STATES
October Term, 1972
HELTER SMELTER, INC.,
Petitioner,
v.
EMMA PEEL, IVA KOFF, HOWARD D. EISE,
and D. FOLEY YATES,
Respondents.
On Writ of Certiorari to the
Court of Appeals for the Twelfth Circuit
BRIE?' FOR RESPONDENTS
Texas Tech University
School of Law
Lubbock, Texas
November 1, 1S7 2
Charles O. Grigson
Grover Hartt, III
Wynette J. Hewett
Attorneys for Respondents
I N D E X
Page
Index of Authorities
iv
Opinions Below
1
Jurisdiction
i
Questions Presented
2
Statutes Involved
2
Statement
3
Summary of Argument
4
Argument and Authorities
6
I.
DENIAL OF RESPONDENTS''RIGHT TO PROCEED AS A
CLASS IS A FINAL DECISION FOR PURPOSES OF
APPEAL
A.
B.
7
The district court's denial of the right
to proceed as a class will terminate litigation of the merits of the case
10
Other avenues of appeal are not viable
13
THIS CLASS ACTION IS PROPERLY MAINTAINABLE
UNDER FEDERAL RULE 2 3(b)(3) BECAUSE QUESTIONS
COMMON TO THE CLASS PREDOMINATE OVER THOSE
AFFECTING INDIVIDUAL MEMBERS AND IT IS SUPERIOR TO OTHER AVAILABLE METHODS OF ADJUDICATION
15
C.
II.
The class action determination is a final
order which is collateral to thi, merits
of the case
•
6
A.
This class action is appropriate because
questions common to the class predominate
over those affecting individual members
1.
2.
16
Violation of the Clean Air Act raises
questions common to -he class that are
predominant
17
Questions common to the class predominate under Respondents' common law
nuisance claim
18
L G 8
Page
3.
E.
III.
This class action is superior to other
available means for fair and efficient
adjudication,...
THE CLEAN AIR ACT PROVIDES A JURISDICTIONAL
PREDICATE FOR A PRIVATE DAMAGE CLAIM
A.
The doctrine of implying a damage remedy
for those injured by violation of a federal
statute furnishes jurisdiction for Respondents' claims
1.
B.
24
26 .
The case at bar should be included in
the extensive application given to
this doctrine
27
The purpose and intent of Section 304 include private claims for damages
30
2.
3.
The Section should be construed as an
integral part of the Clean Air Act
itself
30
The Section should be construed as a
remedial statute
32
The Section should not be construed
as an exception to the doctrine of
implied damages
33
THE FEDERAL COURTS HAVE PENDENT JURISDICTION
OVER THE NUISANCE CLAIM
B.
21
26
1.
A.
19
The doctrine has a firm basis in the
decisions of this Court
2.
IV.
Although there are individual questions,
the court has flexible means to render
the suit manageable
36
The allegations in the complaint are
sufficient to warrant the exercise of
pendent jurisdiction
36
Petitioner's cessation of operations
should not oust jurisdiction over the
nuisance claim
,
38
1.
2.
Mootness does not oust federal jurisdiction
38
Exarcisir. jurisdiction over the pendent claim is not an abuse of discretion . 39
ii
Page
Conclusion
40
Certificate
41
Appendices
A-i
viii
1 6 5
•INDEX OF AUTHORITIES
Page
Cases
A.H. Phillips, Inc. v. Walling, 324 U.S. 490
(1945)
.
33
Addison v. Holly Hill Fruit Products, 322 U.S.
607 (194-i;
23
Allen v. State Board of Elections, 393 U.S. 544
(1969)
Almenares v. Wyman, 453 F.2d 1075 (2d Cir.
. 29,30
1971),
cert. denied, 405 U.S.- 994 (1972)
Bell v. Hood, 327 U.S. 678 (1946)
38
27, 28,29
Bevins v. U.S.
Six Unknown
Fed. Narcotics Agents, 403
388 (1971)
29,30
Biechele v. Norfolk & Western Railway Co., 309
F.Supp. 354 (N.D. Ohio 1969)
18,20,22
Burnet v. Guggenheim, 288 U.S. 280 (1933)
35
Caceres v.
International
Assn'n,
422 F. 2dAir
141Transportation
(2d Cir. 1970)
12
Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949)
7,8,9,15
Dann v. Studebaker-Packard Corp., 283 F.2d 201
(6th Cir. 1961)
Deitrick
37
v. Greany, 309 U.S. 190 (1940)
Dickinson U.S.
v. Petroleum
Conversion Corp., 338
507 (1949)
Dolgow v. Anderson, 43 F.R.D. 472
1968)
28
7,10
(E.D.N.Y.
Eisen v. Carlisle & Jacquelin, 370 F.2d 119
(2d Cir. 1966), -cert. denied, 336
U.S. 1035 (1969)
Eisen v. Carlisle & Jacquelin, 391 L?.2d 555 (2d
Cir. 1968)
19,22,24
11,12,13
17,19,20,23
Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968)..16,17,19,24
iv
Page
Fagot v. Flintkote Company, 305 F.Supp.
407 (E.D. La. 1969)
Fischer v. Kletz, 41 F.R.D. 377 (S.D.
N.Y. 1966)
29
17, 21,22
Gillespie v. United States Steel Corp., 379
U.S. 148 (1964)
10,11,12,13,14,15
Goldstrike Stamp Company v. Christensen,
436 F. 2d 791 (10th Cir. 1970)
17
Gold-Washing & Water Company v. Keyes,
96 U.S. 199 (1877)
24
Gosa v. Securities Investment Co., 449
F. 2d 1330 (5th Cir. 1971)
12
Green v. Wolf Corp., 406 F.2d 291
(2d. Cir. 1968), cert, denied, 395 U.S.
977
12,18,21
Kackett v. General Host Corp., 4 55 F.2d
618 (3d Cir. 1972), cert, denied,
407 U.S. 925 (1972)
13
Hansberry v. Lee, 311 U.S. 32 (1940)
22
Harris v. Palm Springs Alpine Estates, Inc.,
329 F. 2d 919 (9th Cir. 1964)
16
Hazel Bishop, Inc. v. Perfemme, Inc., 314
F.2d 399 (2d Cir. 1963)
Hecht Co. v. Bowles, 321 U.S. 321 (194 4)
38
39
Hohmann v. Packard Investment Company,
399 F. 2d 711 (7th Cir. 1968)
Hurn v. Oursler, 289 U.S. 238 (1933)
Hymer v. Chai, 407 F. 2d '136 (9 th Cir. 1969)
J.I. Case (1964)
Company v. Borak, 337 U.S. 4 26
Joseph v. Norman's Health Club, Inc.,
336 F. 3upp. 507 (E.D. Mo.'1971)
Kardon v. National Gypsum Co., 69 F. Supp.
512 (E.D. Pa. 1946)
Korn v. Franchard Corporation, 443 F.2d
1301 (2d Cir. 1971)
iv
22
37
36
25,29,30,32
23
27
12,13
Page
Leather's Best, Inc. /. S.S. Mormaclynx,
451 F. 2d 800 (2d Cir. 1971)
39
Mader v. Armel, 402 F.2d 158 (6th Cir. 196S),
cert, denied, 394 U.S. 930 (1969)
17
Miller v. Robertson, 266 U.S. 243 (1924) .
32
Minnesota 44
v. F.R.D.
United 539
States
Steel C1962)
on. ,
(D. Minn.
24
Montana-Dakota Util. Co. v. Northwestern
Pub. S. Co., 341 U.S. 246 (1951)
27
Mullane v. Central Hanover Bank & Tru^t Co.,
339 U.S. 306 (1950)
22
Nashville Milk Co. v. Carnation Company,
355 U.S. 373 (1958)
27
Neiswonger v. Goodyear Tire & Rubber Co.,
35 F .2d 761 (N.D. Ohio 1929)
28
Osborn v. Bank of United States, 9 Wheat.
738 (1824)
36
Reitmeister v. Reitmeister, 162 F.2d 691
(2d Cir. 1947)
Roberts v. United States District Court,
339 U.S. 844 (1950)
26, 29
1
8
Rosado v. Wyrnan , 397 U.S. 397 (1970)
40
Roschen v. Ward, 279 U.S. 337 (1929)
30
Scarborough v. Atlantic Const. Line R. Co.,
178 F.2d 253 (4th Cir. 1949), cert.
denied, 339 U.S. 919 (1950)
33
Securities & E. Com'n. v. C.M. Joiner L. Corp.,
320 U.S. 344' (1943)
34
Siegal v. Chicken Delight, Inc., 271 F. Supp.
722 (N.D. Cal. 1967)
'
16,20
Snyder v. Harris, 394 U.S. 332 (1969)
13
Sola Electric
Co. v.
Electric Co.,
317 U.S.
173 Jefferson
(1942)
28
vi
L B
8
Page
Sprague v. Ticonic Nat. iank, 307 U.S.
161 (1939)
12
Stack v. Boyle, 342 U.S. 1 (1951).
8
St. Louis,
Mountain
& Southern
Ry.
v. Iron
Southern
Express
Co., 108
U.S. 24 (1883)
6
Strachman v. Palmer, 177 P. 2d 4 27 (1st
Cir. 1949)
37
Swift v. Compania Columbiana del Caribe,
339 U.S. 684 (1950)
9
Switchmen's Union of North America v.
National Mediation Board, 320
U.S. 297 (1943)
34
Taussig v. Wellington Fund, Inc., 313 F. 2d
472 (3d Cir. 1963), cert, denied,
374 U.S. 806 (1963)
40
Tcherepnin v. Knight, 389 U.S. 332 (1S67)
32
Texas & P. R. Co. v. Rigsby, 241 U.S. 33
(1916)
26,28
Textile Workers Union of America v. Lincoln
Mills, 353 U.S. 448 (1957)
27
Tunstall v. Brotherhood of Locomotive Firemen.
& Engineermen, 322 U.S. 210 (1944)
28
United Mine Workers of America v. Gibbs, 383
U.S. 715 (1966)
37,39
United States v. Baltimore & O. R. Co., 133
F.2d 831 (4th Cir. 1943)
33
United States v. Bishop Processing Company,
423 F. 2d 469' (4th Cir. 1970), cert.
denied, 398 U.S. 904 (1970)
32
United States v. W. T. Grant Co., 34 5 U.S.
623 (1953)
39
Washington v. General Motors Corp., 405
U.S. 109 (1972)
32
Weeks v. Southern Bell Telephone & Telegraph
Company, 408 F.2d 228 (5th Cir. 1969)
33
vii
L G 9
Page
Weingartner v. Union Oil, 4 31 F.2d 26
(9th Cir. 1970) , cert. denied,
400 U.S. 1000 (1971)
12
Wham-O-Mfg. Co. v. Paradise Manufacturing
Co., 327 F. 2d 748 (9th Cir. 1964)
William Aldred's Case, 77 Eng. Rep. 816
(K.B. 1611)
.
38
36
Wills v. Trans World Airlines, Inc., 200
?. Supp. 360 (S.D. Cal. 1961)
29,30
Wyandote Trans. Co. v. United States, 3 89
U.S. 191 (1967)
29 .
Yaffe v. Powers, 454 F.2d 1362 (1st Cir.
1972)
24
Zalkind v. Scheiman, 139 F.2d 895 (2d Cir.
1943), cert, denied, 322 U.S. 738
(1944)
37
Statutes
Clean Air Act, as amended, 4 2 U.S.C. §
1857c-4 (1970)
8
Clean Air Act, as amended, 4 2 U.S.C. §
1857h-2 (1970)
....25,30,31,33, 34
Judicial Code and Judiciary, 28 U.S.C.
§ 1291 (1958)
6,7,8,9,10,13,14,15
Judicial Code and Judiciary, 28 U.S.C.
§ 1292 (1958)
13,14
National Environmental Policy Act,
42 U.S.C. § 4331
32
FED. R. CIV. P. 8(a) .'.
25
FED. R. CIV. P. 23
8,15,17,13,19, 21,23,24
FED. R. CIV. P. 54(b)
»
14
Miscellaneous
ABA, Report of the Special Committee
or: Federal Rules of Civil Procdure, 38 F.R.D. 95 (1965)
15
viii
1
7
0
Page
ALI, Study of vhe Division of Jurisdiction Between State and Federal
Courts, § 1313 (Tent. Draft No. 6,
1968)
38
W. BARRON & A. HOLTZOFF, FEDERAL PRACTICE
& PROCEDURE, § 23 (Wright ed.
1960)
37.
116 CONG. REC. 5-205D7 (daily ed. Dec.
18, 1970)
35
Cox, The Supreme Court, 19 6 5 Term, 80
HARV. L. REV. 91 (1966)
39
Frankfurter, Some Reflections on the
Reading of Statutes, 1 Benjamin
N. Cardozo lectures, Association
of the Bar of the city of New
York 125 (1970)
30
Jackson, Problems of Statutory Interpretation, 8 F.R.D. 121 (1948) .
34
Juergensmeyer, Control of Air Pollution
Through the Assertion of Private
?Cights, 1967 Duke L.J. 112b
31
Kaplan, Continuing Work of the Civil Committee: 19 6 6 Amendments to the
Feci :;.:al Rules of Civil Procedure,
81 HARV. L. REV. 356 (1967)
15
Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or
Canons About How Statutes are to
be Construed, 3 VAND. L. REV. 395
(1950)
31
C. MCCORMICK, DAMAGES § 60 (1927)
12
1 J.MOORE, FEDERAL PRACTICE 1(0.60 [8.-3]
(1960)
25
Note, Implying Civil Remedies from Federal
Regulatory Statutes, 77 ,HARV. L.
REV. 285 (1963}
27
Note, Interlocutory Appeal from Orders
Striking Class Action Allegations,
70 COLUM. L. REV. 1292 (1970)
9,14
viii
1 7 1
Page
W. PROSSER, HANDBOOK OF THE LAW OF TORTS
§ 87 (4th ed. 1971)
18
RESTATEMENT
(1965)
26
Rosenthal, The Federal Power to Protect the
Environment: Avallable Devices to
Compel or Induce Desired Conduct,
45 S. Cal. L. Rev. 397 (1972)
31
S. REP. No. 1196, 91st Cong. 2d Sess. 38
(1970)
.
34
Sive, Securing, Examining, and Cross-examining
Expert Witnesses in Environmental
Cases, 68" MICH. L. REV. 1175 ("1970)
11
(SECOND) OF TORTS, § 286
3 J. SUTHERLAND, STATUTES AND STATUTORY
INTERPRETATION, § 5702 (3d ed. 1943)
1970 U.S. CODE CONG. AND ADM. NEWS 5356
C. WRIGHT, FEDERAL COURTS, § .19 (2d ed. 197 0)
7A C. WRIGHT
& A. MILLER,
FEDERAL
PRACTICE
AND PROCEDURE
§ 1802
(1972)
32
31,35
36
14,19
IN THE
SUPREME COURT OF THE UNITED STATES
October Terra, IS72
No. 0001
HELTER SMELTER, INC.,
Petitioner,
v.
EMMA PEEL, IVA KOFF, HOWARD D. EISE,
and D. FOLEY YATES,
Respondents.
On Writ of Certiorari to the
Court of Appeals for the Twelfth Circuit
BRIEF FOR RESPONDENTS
OPINIONS BELOW
The opinions of the United States District Court for
the Middle District of Effluvia and the Unites States Court of
Appeals for the Twelfth Circuit, as yet unreported, are set
forth in the Record at pages 7-9 and 10-12 respectively.
9
JURISDICTION
Statement of jurisdiction is omitted pursuant to Rule
IV(B), 1972 Rules of the National Moot Court Competition.
2
QUESTIONS PRESENTED
1.
Whether the class action determination, although
collaterc, ... to the merits of the case, is an appealable final
order?
2.
Whccher denial of Respondents' right to proceed
as a class is an appealable final order, since it terminates
the litigation of the merits of the case?
3.
Whether Petitioner's liability for unlawful emis-
sions presents predominate questions of law or fact common to
the class?
4.
Whether a class action is the superior method of
adjudication because of the flexible and efficient procedures
available to the court for management of the suit?
5. -Whether the doctrine of implied damages for violation of a federal statute applies to the Clean Air Act?
6.
Whether the Congress intended to exclude a damage
remedy from the Clean Air Act's authorization for citizen
suits?
7.
Whether the pendent nuisance claim is dependent
upon subject matter jurisdiction of the federal damage claim?
STATUTES INVOLVED
Relevant provisions of the Judicial'Code and Judiciary,
Federal Rules of Civil Procedure, and the Clean Air Act are
included in the appendices.
Complete reproduction here is
omitted pursuant to Rule 40(3), 1970 Revised Rules of the
Supreme Court.
1.74
3
STATEMENT
Petitioner, Helter Smelter, Inc., is a corporation
organized under the laws of the State of Effluvia.
It is
engaged in the business of smelting and refining ores and
metals and operates a smelter in the city of Downwind.
(R. 2).
Operation of this smelter causes the emission of immense quantities of the gas sulfur dioxide. (R. 3) .
Pursuant to the Clean Air Act, ambient air standards
were adopted by the State of Effluvia and accepted by the
Administrator.
smelt..
(R. 2-3).
Petitioner continued to operate its
in violation of these standards.
(R. 3).
Respondents
filed notice with the Petitioner asking that it comply, but
Petitioner replied that compliance was not profitable.
More-
over, Petitioner threatened to close .the smelter causing
substantial unemployment if forced to comply. (R. 3).
After this response, and after both the Administrator
and Effluvia failed to take action, Respondents filed suit on
their own behalf and on behalf of the other residents of
Downwind.
(R. 3) .. Respondents are four residents of Downwind:
Emma Peel, Iva Koff, Howard D. Eise, and D. Foley Yates.
In
their suit Respondents sought an injunction to stop the
continuing pollution.
They also sought damages predicated on
violation of the Clean Air Act and Effluvia's law of nuisance.
(R. 5-6).
Indicative of the ty^es and extent of injuries
caused by the sulfur dioxide are those suffered by the respondents.
Emma Peel sustained property damage in the amount of
$1,665.00.
(R. 4).
Iva Koff suffered personal injuries and
J . 7 5
4
business losses amounting to $4 , 325.00.
(R. 4).
Howard D. Ei.se
experienced personal injuries and business losses of $625.00.
(R. 5).
D. Foley Yates sustained business losses of $3,000.00.
(R. 5).
After the action was filed in the district court, but
before it could be brought to trial, Petitioner closed the
smelter, thereby rendering the injunction issue moot.
(R. 8).
Resolving the remaining issues, the court held that a damage
remedy could be implied from the Clean Air Act; that even in
the absence of such claim that the court could retain jurisdiction of the pendent claim; and that the suit could not be
maintained as a class action.
(R. 8-9).
On review, the court of appeals determined that the
class'action ruling was appealable and that the district court
erred in refusing to allow the suit to proceed in that manner.
(R.. 11-12) .
The court' affirmed the district court's finding of
jurisdiction under the Clean Air Act and the pendent claim.
(R. 11-12).
This Court granted certiorari to consider all
questions raised by the record.
(R. 13).
S U G A R Y OF ARGUMENT
The overriding question before the Court is whether
Respondents will receive a meaningful hearing of their claims
against Petitioner.
For Respondents to receive a hearing, this
Court must find a basis for subject matter jurisdiction.
For
the hearing to be meaningful, this Court must hold that the
class action can be maintained.
5
Two grounds for jurisdiction are present:
Jurisdic-
tion of the damage claim under the Clean Air Act, and jurisdiction of the pendent nuisance claim.
If the Court approves
jurisdiction of the federal claim, then jurisdiction of the
pendent claim seems clear.
Yet if the federal damage claim
is denied, jurisdiction can still be granted to the pendent
claim.
The Court should affirm jurisdiction on both grounds,
but the case can still be heard by affirming jurisdiction on
either ground.
The possibility of jurisdiction on only one ground
makes the class action determination critical.
Because the
individual claims are small, the four Respondents cannot bear
the costs of litigation without: a class action.
If jurisdic-
tion under the Clean Air Act is allowed, Respondents can
potentially recover some or all of their costs under its
provisions.
However, if jurisdiction is sustained only as to
the pendent claim, Respondents' already dubious chances of
recovering costs vanish.
Therefore,' this Court should affirm the right to
appeal the dismissal of the class action.
Denial of the class
action is properly interpreted as a final order.
More
importantly, denial of the class action is fatal to this suit
regardless of other findings.
The class action itself is an
altogether suitable and proper method for the conduct of this
suit.
It is appropriate because the predominate questions
are the same for all members of the class.
Because a class
action is both efficient and fair, it is the superior means
213
6
for litigation of this suit.
This Court should affirm the right to proceed as a
class under the Clean Air Act claim and the nuisance claim.
The Clean Air Act was designed to protect against the type of
harm which Respondents have suffered.
Jurisdiction to sue for
damages is present because of the doctrine of implied remedies
to those injured by violation of a federal statute.
Since the
nuisance claim is based upon the same nucleus of operative
fact, pendent jurisdiction should be upheld.
This common
nucleus of fact relates to the entire case, and is not dependent upon the federal damage claim alone.
The undisputed
jurisdiction to issue an injunction supplies pendent jurisdiction even with the smelter closed and the federal damage
claim denied.
ARGUMENT AND AUTHORITIES
I.
DENIAL OF RESPONDENTS' RIGHT TO PROCEED AS A CLASS IS A
FINAL DECISION FOR PURPOSES OF APPEAL.
The courts of appeals are authorized jurisdiction of
appeals from all final decisions of the district courts.
Judicial Code and Judiciary, 28 U.S.C. § 1291 (1958). (Appendix A).
What constitutes a final decision under this statute
has been disputed many times before this Court.
A judgment
on the merits of a case has been held to be final "when it
terminates the litigation between the parties on the merits of
the case, ana leaves nothing to be done but to enforce by
execution what has been determined."
St. Louis, Iron Mountain
& Southern Ry. v. Southern Express Co., 10S U.S. 24 (1883).
Petitioner urges that dismissal of the class action
is not appealable by contending that this order was not a
final decision on the merits of the case.
However, this Court
"has long given this provision [§ 1291] a practical rather than
a technical construction."
Cohen v. B'ene.i:icial Industrial
Loan Corp., 337 U.S. 541, 546 (1949)." A final disposition of
rights collateral to the merits of a case has been declared
appealable by this Court.
11
Cohen.
In another instance of
practical construction" this Court held that any order which
effectively terminates the litigation of an action is final
under § 1291.
Dickinson v. Petroleum Conversion Corp., 338
U.S. 507 (1949).
The denial of Respondents' right to proceed
as a class was collateral to the merits of this action and
would have terminated the litigation, but for an appeal.
Holding the district court's decision to be appealable is in
accord with the prior decisions of this Court.
A.
The class action determination is a final order which
is collateral to the merits of the case.
An appealable final order "is a final disposition of .
a claimed right which is not an ingredient of the cause of
action and does not require consideration with it."
546-47.
Cohen, at
This Court held that an order requiring a plaintiff
to post bond to cover expenses in a stockholder's derivative
action was an appealable final order_even though it was
collateral to the merits of the case.
Three principal reasons
for allowing appeals from a small class of collateral orders
were expressed:
1) the order finally determined "a claim of
8
right separable from, and collateral to, rights a.sserted in the
action"; 2) it was "too important to be denied review"; and
3) upon final judgment
it will be too late effectively to
review the . . . order, and the rights . . . w i l l have been
lost, probably irreparably."
Cohen, at 546.
Also, it was
held that the order was too independent of the cause itself to
require that appellate consideration be deferred until the
whole case is adjudicated.
When a decision is within these
criteria, it is appealable under § 1291.
This reasoning was followed in Roberts v. United
States District Court, 339 U.S. 844 (1950) when appeal was
allowed under § 1291 of a petition to proceed in forma pauperis,
although collateral to the merits of the case.
Similarly, in
Stack v. Boyle, 342 U.S. 1 (1.951) a collateral order denying
a motion to reduce excessive bail was held appealable, following the Cohen rationa_e.
The district court's order undier FED. R. CIV. P. 2 3
determining that Respondents' suit was not maintainable as a
class action is an.appealable collateral order.
The merits
of this case concern the issue of Petitioner's emissions of
sulfur dioxide and whether these emissions constituted a
nuisance or violated the ambient air standards of the Clean
Air Act, as amended, 42 U.S.C. § 1857 c-4 (1970).
The only
issue decided when Respondents are n'ot allowed to proceed as
a class is whether the district court believes that the
requirements of Rule 2 3 have been met.
This decision has no
relevance to the merits of the case; thus, it is a completely
i _ 8 0
9
collateral order.
Nevertheless, as in Cohen the district
courts' decision "is the final disposition of a claimed
right."
Review of this order will have no bearing on the
substantive issues involved.
This decision is too important to be denied review.
Appeal of this order is not merely a review of the district
court's discretion but it is a review of issues of law.
Whether questions of law common to the class predominate is
a critical issue over which review should be allowed.
See
Note, Interlocutory Appeal from Orders Striking Class Action
Allegations, 70 COLUM. L. REV. 1292 (1970).
In Swift v. Compania Columbiana del Caribe, 339 U.S.
684 (1950), this Court held that a collateral order vacating a
maritime lien on the plaintiff's vessel was properly appealable under § 1291.
The rationale was that review of the order
vacating the attachment after a judgment on the merits would
have been futile because the right to attach would be irreparably lost.
The denial of Respondents' right to proceed as a
class must be immediately reviewed to be effective because
upon final judgment this right will have been virtually lost.
Postponing review until a judgment for either party will
effectively destroy the right to proceed as a class.
During
a lengthy trial some members of the' class would likely file
complaints against Petitioner; however, many other members
will never be represented if there is no appeal.
Upon a
judgment for Respondents oniy on their own behalf, there is
213
10
little likelihood that the class action determination would
be raised on appeal.
no longer exist.
A duty to represent the class would
However, if the issue were raised and
Respondents prevailed, fairness to Petitioner requires a new
•crial.
Therefore, immediate appeal of this collateral order
should be allowed.
B.
The district court's denial of the rlcht to proceed
as a class will terminate litigation of the merits
of the case.
A decision which terminates litigation on the merits
of the case is appealable under § 1291.
Dickinson, supra.
If
an order has the effect of disposing of the decision on the
merits of the case, it need not be a final decision on the
merits to be appealable.
Gillespie v. United States Steel
Corp., 379 U.S. 148 (1964).
Gillespie involved a suit for negligence by a seaman's
mother under maritime law with a state claim for wrongful death
The district court held that the federal law provided exclusive
remedy, then struck the state claim and claims of the decedent'
brothers and sisters.
This Court allowed appeal under § 1291
reasoning that the danger of denying justice by delaying the
appeal outweighed the consideration of inconvenience and costs
of piecemeal review.
Mr. Justice Black said that final within
the meaning of § 1291 should have a practical construction
because "it is impossible to devise a formula to resolve all
marginal cases coming within . . . the 'twilight zone' of
finality."
Gillespie, at 152.
This Court should again constru
§ 1291 practically, and allow Respondents' appeal of dismissal
of the class action.
In Eisen v. Carlisle & Jacquelin, 370 F.2d 119
(2d Cir. 1966) , cert, denied, 386 U.S. 1035
(1969) , an adverse
decision on a class action determination was held to be appealable under § 1291.
The court ruled that this decision would
terminate the case if appeal was not granted.
Because the
case involved complex and costly issues and the plaintiff's
claim was small
($70.00), the court reasoned that the case
would not be adjudicated without appeal.
The Gillespie
rationale of balancing competing considerations of piecemeal
review and the danger of denying justice by delay was observed.
Since the order was the "death knell" of the litigation, there
would be no piecemeal appeals.
Eisen, at 121.
Thus, both
considerations led to the conclusion that appeal was proper.
The order dismissing Respondents' class action comes
within the "twilight zone" of finality.
Since the claims are
small, the action will die if appeal is not allowed.
There-
fore, there will be either an appeal of the class action
determination or no appeal at all; questions of inconvenient
piecemeal review will never be reached.
Denial of the right to proceed as a class will terminate Respondents' litigation because their claims are too
small..
The size of the claim is important because of the
complex technical'proof required and the extensive expert
testimony needed.
Sive, Securing, Examining, and Cross-
examining Expert Witnesses in Environmental Cases, 6 8 MICK.
L. REV. 1175
(1970).
A claim will not continue to be prosecuted
when the costs of litigation are greater than the possible
L 8 3
12
recovery.
Eisen.
Although the Clean Air Act provides for
recovery of costs of litigation. Respondents may be forced
to rely only on the pendent nuisance claim for damages.
Absent a statute, recovery of attorney and witness fees is
the exception rather than the rule.
Sprague v. Ticonic
Nat. Bank,- 307 U.S. 161 (1939); C. MCCORMICK, DAMAGES.
§ 60, at 234 (1927).
The lower courts are in dispute concerning the
appealability of a class action determination.
Nevertheless,
when the order dismissing the class action terminates the
action, appeal is usually allowed, as it should be if Gillespie
is followed.
Appeal is not allowed when claims are very large
because these claims will continue to be prosecuted.
Wein-
gartner v. Union Oil, 431 F.2d 26 (9th Cir. 1970), cert,
denied, 400 U.S. 1000 (1971) [$353,700.00 claim]; Caceres v.
International Air Transport Ass'n., 422 F.2d 141 (2d Cir.
1970) [average claim of $150,000.00].
are involved appeal is usually allowed.
But when small claimants
Korn v. Franchard Corp-
oration, 443 F.2d 1301 (2d Cir. 1971) [$386.00 claim]; Green v.
Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert, denied, 395
U.S. 977 (1969) [approximately $1,000.00 claim].
In Gosa v.
Securities Investment Co., 449 F.2d 1330 (5th Cir. 1971) the
court denied appeal of a class accion determination when the
claimed damage was small, ($3,222.20).
However, the reason
for denying appeal was that no evidence was shown that the
action.would likely terminate without review.
Respondents' claims range from $625.00 to $4,325.00.
213
13
213
Due to the complex nature of this suit (R. 11), costs will
exceed the recovery if permission to represent the class
is not granted.
Therefore, without appeal Respondents'
action will lapse.
In one of the companion cases to Korn, the court
held that dismissing the class action when the claim was
$3,500.00 would not end litigation on the merits.
Because
the amount claimed approached the jurisdictional requirement
of $10,000.00, the court presumed the action would be prosecuted to judgment.
Respondents' largest claim is one-half
the amount in Korn.
Therefore, Respondents' claims should
be considered individually in view of this Court's negative
attitude toward aggregation in actions brought under Rule 23.
Snyder v. Harris, 394 U.S. 332 (1969).
C.
Other avenues of appeal are not viable.
Only one court of appeals has refused to allow
appeal when a class action determination terminates the
litigation on the merits.
Kackett v. General Host Corp.,
455 F.2d 618 (3d Cir. 1972), cert, denied, 407 U.S. 925
(1972). As emphasized by the vigorous dissent, the court
made no reference whatsoever to Gillespie.
The majority
refused to allow appeal when the claim of the representative
plaintiff was $9.00.
The court reasoned that alternative
methods for appeal should be sought', instead of allowing
appeal under § 1231.
Respondents submit that the interpre-
tation of Gillespie in Eisen is the better approach and
should be followed here.
Alternatives available to Respondents are unjust and
14
inadequate.
The District Court is authorized to certify an
order appeasable if there is significant d-ifference of opinion
concerning the issue or when appeal may materially advance the
litigation.
(1958).
Judicial Code and Judiciary, 28 U.S.C. § 1292
(Appendix A).
Yet, it is not probable that the court
which denied the right to proceed as a class will allow appeal.
"District Courts generally have been reluctant to grant Section 1292(b) orders, and this
attitude seems to have been particularly prevalent in class actions. For example, only one
Rule 23 case has been found in which an application for a Section 1292(b) certification was
granted."
7A C. WRIGHT & A. iYilLLER, FEDERAL
PRACTICE AND PROCEDURE, § 1802, at 279-80 (1972).
[hereinafter cited as WRIGHT & MILLER]
Appeal allowed under FED. R. CIV. P. 54(b). is also
inadequate because it too is within the district court's discretion.
(Appendix A).
Securing a writ of mandamus is an
alternative to an appeal under § 1291; however, this method is
procedurally difficult and limited to cases of significant
abuse of discretion.
WRIGHT & MILLER, at 282.
Refusal to
amend a petition after a class action is dismissed will result
in final judgment on the merits of the case, but this leaves
only an "all or nothing" appeal.
Note, Interlocutory Appeal
from'Orders Striking Class Action Allegations, 7 0 COLUM. L.
REV. 1292 (1970) .
Any available alternative to appeal under §
1291 would be severely inequitable for Respondents.
Although specific dollar amounts may be of some significance in determining whether Respondents' action will
terminate when denied the right to proceed as a class, the
principal test is that formulated by Gillespie.
The incon-
venience of review must be shown to outweigh the danger of
15
denying justice by delay before appeal wi 1 be denied.
The injustice of delaying Respondents' appeal by far
outweighs any inconvenience of possible piecemeal litigation.
Moreover, since, the decision, by the district court ends the
litigation for Respondents, appeal should be allowed, for this
is the final order of the case.
Even the authors of amended
Rule 23 agree that class action determinations should be appealable.
ABA, Report of the Special Committee on Federal Rules of
Procedure, 33 F.R.D. 95 (1965); See also Kaplan, Continuing
Work of the Civil Committee:
19 6 6 Amendments to the Federal
Rules of Civil Procedure, 81 HARV. L. REV. 356
(1967).
Dismissal of Respondents' class action is collateral
to the merits of the case, and is appealable for the- reasons
this Court stated in Cohen.
The dismissal also effectively
terminates Respondents' litigation in the action and is appealable under the rationale expressed in Gillespie.
Therefore,
this Court should affirm the court of appeals' decision that
appeal of the class action determination was proper under
§ 1291.
II.
THIS CLASS ACTION IS PROPERLY MAINTAINABLE UNDER FEDERAL
RULE 2 3(b)(1) BECAUSE QUESTIONS COMMON TO THE CLASS PREDOMINATE OVER THOSE AFFECTING INDIVIDUAL MEMBERS AND IT
IS SUPERIOR TO OTHER AVAILABLE METHODS OF ADJUDICATION.
To be properly maintainable,.- a class action must meet
all of the requirements of Rule 23 (a) and one of the require9
ments of Rule 23(b).
FED. R. CIV. P. 23.
(See Appendix A).
The requirements of Rule 23(a) are not in dispute in the
instant case since there are numerous plaintiffs, common
questions, adequate representation, and typical claims.
Sub-
213
16
division
(b)(I) does not apply because uhe interests of the
plaintiffs do r.3t necessarily affect each other.
ment under subdivision
The require-
(b)(2) does not apply because the issue
of injunctive relief is now moot.
However, subdivision
(b)(3)
does apply to Respondents because questions common to the class
predominate over those affecting individual members, and the
class action is superior to other available means of adjudication .
A.
This class action is appropriate because questions
common to the class predominate over those affecting
individual members J
Petitioner contends that questions affecting individ-
uals predominate over those affecting the class as a whole.
(R. 9).
Although the district court approved
(R. 9), the court
of appeals rejected this contention and held that questions
common to the class do predominate.
(R. 12).
When common issues predominate over those affecting
individual members, a class action is proper.
Esplin v.
v
I-Iirschi, 402 F. 2d 94 (10th Cir. 1968);
Siegal v. Chicken
Delight, Inc., 271 F. Supp. 722 (N.D. Cal. 1967),
In Siegal
plaintiffs were franchise holders seeking damages on the basis
of both federal and state statutes.
The defendant contended
that differences in the size and types of members of the
plaintiff class, as well as differences in the market location
made the class action 'inappropriate.'
In rejecting defendant's
contention, the court held that where there is a "common
nucleus of operative fact" a class action is proper even if
complete factual identity is lacking.
The .court in Harris v. Palm Springs Alpine Estates,
i _ 8 8
17
Inc. , 329 F. 2d 909 (9th Cir. 1964), held that where there is a
"common course of conduct" toward members of the class, the
existence of individual issues does not render a class action
inappropriate.
Subsequent to the 19 66 amendments to Rule 23,
the test has received continued acceptance.
Esplin, supra;
Fischer v. Kletz, 41 F.R.D. 377 (S.D.N.Y. 1966).
Holding that Rule 23 should be given a liberal rather
than a restrictive interpretation, the court in Eisen v.
Carlisle & Jacc-r.elin, 391 P. 2d 555 (2d Cir. 1963) [hereinafter cited as Eisen (II)], allowed a class action to proceed.
It reasoned that the acts of the defendants (conspiracy and
misrepresentation) raised predominant questions even though
plaintiffs were effected in different ways.
Although Respondents seek to recover for various
injuries, all claims of the class members arise from a "common
nucleus of operative fact"—Petitioner's flagrant violation of
emission standards.
Petitioner also followed a "common course
of conduct" toward the residents of Downwind.
With respect to
each member of the class, the air was polluted in disregard of
adopted standards.
Even though some factual differences exist,
the maintenance of the class action is proper when common
questions predominate.
Gold Strike Stamp Company v. Christen-
sen, 436 F.2d 791 (10th Cir. 1970); Mader v. Armel, 402 F.2d
158 (5-v.h Cir. 1968), cert, denied, 394 U.S. 930 (1969).
Thus
Respondents' suit is proper as a class action for claims
arising under both the Clean Air Act and common law nuisance.
1.
Violation of the Clean Air Act raises questions
common to the class that are predominant.
18
Respondents must show that Petitioner was in violation of the authorized ambient air standard adopted by the
State of Effluvia pursuant ^o the Clean Air Act.
Expert testi-
mony will be required to establish the violation.
(R. 11).
If
each claimant were required to present experts and. individually
litigate his c.:.aim, the result would be repetitive
litigation.
Repetitious litigation contravenes the purpose of the procedural device of class action.
Green v. Wolf Corp., supra.
Since the issues raised by Petitioner's violation of the
applicable standards are common to all members of the class
and extensive expert testimony is required to establish
liability, these questions predominate.
2.
Questions common to the class ;~:.:edo:;J.nate under
Respondents' common law nuisance claim.
Under the second count of the petition Respondents
have alleged a common law nuisance claim.
(R. 5).
In order
for the court to determine the liability of Petitioner, it
will be necessary to consider whether Petitioner made an
unreasonable use of its land.
The court will be weighing
such factors as the gravity of the harm, the extent and duration of the interference, cost of eliminating the condition.,
and the utility of the conduct.
W. PROSSER, HANDBOOK OF THE
LAW OF TORTS, § 87 (4th ed. 19 71).
Whether the use of land
was unreasonable is the predominate question concerning Petitioner's liability.
Since the issue is common to each member
of the class, individual litigation would be repetitive and
contrary to the purpose of Rule 23.
In Liechele v. Norfolk & Western Railway Co., 309 F.
J . 9 0
19
Supp. 354 (N.D. Ohio 1969), the court considered a class action
seeking injunction and damages for nuisance•created by defendant's coil storage operation.
In that case the plaintiffs
alleged various types of damage.
The suit was allowed to pro-
ceed as a class action even though there were individual
questions concerning damages.
In the case at bar, the individ-
ual questions concerning damages should not defeat the use of
the class action device.
3.
Although there are individual questions, uhe
court has flexible means to render the suit
manageable.
"Common questions need not be dispositive of the
entire action" in order to proceed as a class; they must
merely "represent a significant aspect of the case" that is
common to all members.
7A C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE, § 1778, at 53-54
Esplln, supra.
(1972); See also
Although Respondents raise individual
issues concerning damages, <;.any methods exist for efficient
adjudication of this action.
Potential difficulty in the
management of a class action, although a factor for consideration, is not in itself conclusive of whether the suit is an
appropriate class actionl
FED. R. CIV. P. 23(b); Eisen II
Many new techniques have been developed for managing class
actions.
WRIGHT & MILLER, § 1784, at 119.
These include
subdivision of the class, use of a special, master, and use
of damage claim forms.
The court in Dolgow v. Anderson 7
43 F.R.D. 472 (E.D.
N.Y. 1963), rejected the defendant's contention that a class
action under 23(b)(3) was filled with "procedural horrors".
20
The court emphasized the flexibility which it possessed in
working out equitable procedures for finding damages.
In
Siegal, the defendant had listed nine areas in which there
were individual questions.
However, that court rejected the
contention that such questions rendered the class action
unmanageable.
Subdivision of the members of the class was
among the procedures found to be applicable by both the Dolgow
and Siegal courts.
Members of the class represented by Respondents can be
subdivided on the basis of the nature of the damage which
Helter Smelter has inflicted.
Or the court may find subdivi-
sion practical on the basis of the amount of damages.
In any
instance, courts should employ subdivision rather than dismiss
the suit if difficulties develop. Eisen
(II).
In Biechele, the court approved the use of a special
master to determine damages.
After the introduction of testi-
mony to establish the liability, members of the class filed
damage claims on forms agreed to by counsel.
The parties by
stipulation could then attempt to reach agreement on the amount
of damages.
By this manner the need for individual
litigation
was reduced to only those instances in which agreement could
not be reached.
A special master could be appointed to determine the
amount of damages in the instant case.
Only in those cases
in which the parties could not agree would it be necessary to
have amount of damages litigated.
For example, if the damage
was to vegetation, a special master could utilize a test to
determine the quantity of sulfur in the plant material.
The
21
results of this test would then be applied to tables scientifically verified to determine the amount of the harm to the
plants.
Tabatabai & Bremner, A Simple Tur.-idimetric Method of
Determining Total Sulfur in Plant Materials, 62 AGRONOMY J.
805 (1970;.
B.
This class action is superior to other available means
for fair and efficient adjudication.
If the pertinent factors to be considered by the court
in Rule 23(b) (3) (Appendix A) show that a class action is the
superior means of adjudication, then it should be maintainable.
Fischer, supra.
The first factor is the interest of members
of the class in individually controlling the prosecution of
separate actions.
There has been no showing that individual
members of the class have such an interest.
of the representative Respondents are small.
(R. 12).
The claims
Since these claims
are small, it is unlikely that each would institute an action on
his own behalf.
One of the purposes of Rule 23 is to provide
a forum for the small claimant.
Green v. Wolf, supra., In
the instant case this purpose would be served by allowing the
class action.
The second factor to be considered by the court is the
extent E.nd nature of litigation commenced by members of the
class.
The court of appeals noted "there is no other litiga-
tion pending . . ., and the appropriate governmental officials
have not seen fit to enforce the standards . . . allegedly
being violated."
(R. 12).
Since no other action has been
commenced., the second relevant factor favors the maintenance
of the class action.
The third factor to be considered by the court in
22
determining whether to allow the action to proceed as a class
suit is the desirability of concentrating the litigation of
the claims in the particular forum.
Since L-he claimants are
concentrated in a single geographic area, it is not only
improbable that scattered suits will develop, but. also more
desirable to hear the suits in one.forum. Dolgow, supra.
As
in Uoh" ~.nn v. Packard Instrument Company, 3 99 F. 2d 711 (7 th
Cir. li-68) , respondents' action would achieve economies of
time, effort,and expense.
A class action is superior when
these economies are achieved because there is no duplication
of effort by judges or attorneys, and inconsistent rulings are
precluded.
Fischer, supra.
The fourth factor to be weighed by the court is the
difficulty likely to be encountered in the management of the
class action.
Important to the determination of manageability
of the case is consideration of notice.
Since class actions
involve binding judgments on persons not present in court, but
represented by others, notice must meet the requirements of
due process.
In Hansberry v. Lee, 311 U.S. 32 (1940), the
Court held that the procedures adopted must conform to the
requirements of due process and fairly insure the protection
of absent parties who are to be bound.
The notice given must
be reasonably calculated to apprise interested parties of the
pendency of the action and afford 'them an opportunity to
present their objections.
Trust Co., 339 U.S. 306
In Biechele
Mullane v. Central Hanover Bank &
(1950).
the court held that notice by publica-
tion was sufficient to meet due process requirements.
In that
23
case, the plaintiffs were concentrated
tion.
in one geographic loca-
Notice by publication, which included a map designating
the area of che potential class, was prominently placed in a
local newspaper.
(This notice is reproduced in Appendix 3.)
Respondents are concentrated within a particular
geographic area, the city of Downwind.
Notice prominently
placed in a local newspaper will meet due process requirements.
Such notice is the "best notice practicable under the circum-*
stances."
FED. R. CIV. P. 23(c)(2).
(Appendix A).
The number of potential merabers (83, 000) does not
/
:.... nder the suit unmanageable.
Moreover, a class involving
substantially larger numbers of plaintiffs has been upheld
even when the members were more widely dispersed.
In Eisen
(II), the potential number of members of the class was
3,750,000, and the court approved the use of a class action.
Respondents seek to represent significantly fewer class members
(
than in Eisen
(II).
Finally, damage claims can be appropriately administered by the use of a special master, damage forms, and subdivision of the class.
Where members of the class do not
wish to be bound by the.judgment they may request exclusion.
FED. R. CIV. P. 23(c).
Following Eisen
(II), the court in
Joseph v. Norman's Health Club, Inc., 336 F. Supp. 307
(E.D.
Mo. 1971), noted that since there was no conflict of interest
on the face of the complaint, and no indication of incompetency
of counsel, the suit would be superior as a class action. The
court emphasized that the order was subject to alteration or
amendment before che decision on the merits.
In the case at
213
24
bar, the order allowing class action would be subject to alteration or amendment should the need arise. FED. R. CIV. P. 23(c)
(1)
.
The court in Yaffe v. Powers, 454 F.2d 1352 (1st. Cir.
1972), observed that it would be improper for a court to refuse
to allow the case to proceed as a class action because of
vaguely perceived management problems.
Such a rule would
discount the power of the court to deal with a class suit
flexibly in response to difficulties as they arise.
Envisioned
difficulty should not prevent a class action where-the problems
can be met by the court.
"It cannot be denied that the resolution
of the class action issue places an onerous
burden on che trail court. But if there is
to be an error made, let it be in favor and
not against the maintenance of the class
action, for it is always subject to modification should later developments during the
course of the trial so require." Esolin v.
Kirschi, <*02 F.2d 94 (10th Cir. 19id") .
Because Respondents' class is so numerous, j.oinder is
impractical.
A test suit will not effectively bring these
small claimants before the court.
Dolcow, supra. Similar
claims will go unprosecuted by allowing intervention or
individual litigation. .Minnesota v. United States Steel Corp.,
44 F.R.D. 559 (D.Minn. 1968).
Therefore, this class action is
superior to any available alternative means of adjudication.
III.
THE CLEAN AIR ACT PROVIDES A JURISDICTIONAL PREDICATE
FOR A PRIVATE DAMAGE CLAIM.
The complaint filed by Respondents in the district
court properly alleged jurisdiction in accordance with the
well pleaded complaint rule.
Keyes, 96 U.S. 199
(1877).
Gold-Washing & Water Co. v.
Section 304 of the Clean Air Act,
25
as amended, 42 U.S.C. & 1857h-2 (1970) C'..ppendi>; A) provides
that the district courts shall have jurisdiction regardless of
the amount in controversy or the citizenship of the parties.
This "special federal question" jurisdiction, 1 J. MOORS,
FEDERAL PRACTICE «jf 0.6 0 £3.-3], at 630 (2d ed. 1250), applies
to actions .cased on violations of the national emission standards.
Respondents' complaint satisfied the pleading rules of
FED. R. CIV. P. 8(a)
(Appendix A) and the procedure specified
in Section 304 (Appendix A).
Not until Petitioner had refused
to conform to' the sulfur dioxide emission standards, and not
until the Administrator and the State of Lffluvia failed to
compel compliance was suit filed. (R. 3).
In this suit
Respondents prayed for an injunction to scop th e continuing
pollution and damages to repair the harm already done.
(R. 5-6).
. Rather than contest the injunction, Petitioner ceased
(
operation.
In the present posture of the case, the critical
issue is whether the federal courts have subject matter jurisdiction over the damage claim.
Both of the courts below held
-chat the authorization c-f Section 304 for "citizen suits"
included actions for damages.
(R. 8,11}.
Petitioner's notion to the contrary should be rejected
by this Ccrrt.
Initially, Respondents rely on this Court's
doctrine of implying a damage remedy* tc those injured by
violation of a federal statute.
to the provisions and purposes of
Application of this doctrine
Clean Air Act results in
the conclusion that a damage remedy should be implied in this
W7
26
case.
A.
The doctrine of implying a damage remedy for those
injured b'r violation of a federal statute furnishes
jurisdict-on for Respondents' claims.
i.
The doctrine has a firm basis in the decisions
of this Court.
The conclusion of the district court that Section 304
must be construed to afford redress to injured individuals was
well supported by the decisions of this Court-.
Reliance by .
the district court upon Texas & P.R. Co. v. Rigsby, 241 U.S.
33 (1916) was particularly appropriate.
Allowing a railroad
worker's damage claim under the Federal Safety Appliance Act,
Chap. 196, 27 -cat. at L., Comp. Stat. 1913; the Court in
Rigsby adverted to the maxim,
7
bi jus ibi remedium.
Although
the Act was silent as to such claims, the Court held that
liability to the worker injured by its violation would be
"deemed."
Rigsby, at 40.
Since its inception in Rigsby, the practice of implying
damages for violations of federal statutes has become well
establishes:..
The description of the practice as a "doctrine"
vras first made by Judge Learned Hand.
meister, 162 F.2d 691, 6S .
Reitraeister v. Reit-
(2d Cir. 1S47) .
Indeed, in another
case relied upon by the district court, this Court reaffirmed
the doctrine, saying, ". „ . it is the duty of the courts to
be alert to provide such remedies_ . . . "
Borah, 137 U.S. 426, 433 (1964).
J.I. Case Company v.
This doctrine has also been
embraced by the Restatement of Torts.
RESTATEMENT (SECOND) OF
TORTS § 286, comment d at 26-7 (1965). (Appendix C).
The conceptual basis for the doctrine of implied
L 9 8
27
remedies rests in part on the policy articulated in Textile
Workers Union of America v. Lincoln Mills, 353 U.S. 448
(1957).
There the Court said that it ". . . i s not uncommon for federal
courts to fashion federal lav/ where federal rights are concerned."
Textile Workers, at 457.
Complementing this policy is the precept that, "The
disregard of the command of a statute is a wrongful act and a
tort."
Kardon v. National Gypsum Co., 69 F. Supp. 512 (E.D.
Pa. 1946).
The synthesis of these two ideas is that the
federal courts "may use any available remedy to make good the
wrong done."
Bell v. Hood, 327 U.S. 673, 634 (1946); See also
Note, Implying Civil Remedies from Federal Regulatory Statutes,
77 HARV. L. REV. 285
2.
(1963).
The case at bar should be included in the extensive application given to this doctrine.
Since the Court implied a damage remedy in Rigsby
more than half a century ago, it has applied the doctrine in a
wide variety of situations.
Nevertheless, candor requires that
Respondents note that there have been occasions when it was
refused.
However, these instances are neither common nor
analogous to the case at bar.
The Court did not'imply damages in Nashville Milk Co.
v. Carnation Company, 355 U.S. 373 (1553), but the treble
damages sought were clearly excluded by the language of the
statute.
The Clean Air Act has no expressed exclusion, and
Respondents contend that none should be inferred.
In spite
of a vigorous dissent by four justices, no remedy was implied
in Montana-Dakota Util. Co. v. Northwestern' Pub. S. Co., 341
28
U.S. 246 (-951).
There the Court declined to review the
"reasonableness" of orders of the Federal Power Commission.
Although an administrative agency is designated to promulgate
emission standards under the Clean Air Act, the present case
involves no dispute as to its orders.
tion that the defendant
Nor is there any ques-
(Petitioner) comes within the ambit of
the statute . s there was in Addison v.
.'oliv Hill Fruit Produces,
322 U.S. 607 (1944) .
In marked contrast to the relatively few refusals to
imply remedies, are the numerous instances in which relief has
been implied.
The following cases indicate the breadth of the
situations in which federal courts have implied remedies.
1)
Violation of Federal Safety Appliance Act, s u p r a . —
Texas & P.R. Co. v. Rigsby, supra.'
2)
Violation of Air Commerce Act, 49 U.S.C. § 1 7 3 —
Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761 (N.D.
Ohio 1929)
3)
Violation of National Banking Act, 12 U.S.C. § 8 3 —
Deitrick v. Greaney, 309 U.S. 190
4)
(1940)
Violation of Sherman Anti-Trust Act, 15 U.S.C. § 1 et
seg.--Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173
(1942)
5)
Violation of Railway Labor Act, 45 U.S.C. § 151 et
seq.—Tunstall v. Brotherhood of Locomotive Firemen & Engineering, 323 U.S. 210 (1944)
6)
supra.
Violation of U.S. CONST, amends.
IV, V — B e l l v. Hood,
Although jurisdiction was found in Bell, the claim was
dismissed on the merits.
On very similar facts recovery was
£
0
0
29
cranted in Bevins v. Six Unknown Fed. Narcotics Agents, 4 03
U.S. 388 (1971)
7)
Violation of the Communications Act of 1934, 47 U.S.C.
§ 605—Reitmeister v. Reitmeister, supra.
8)
Violation of Civil Aeronautics Act, 49 U.S.C. § 434,
as amended, id. § 1374 (b) (1958)—Wills v. Trans World Airlines,
Inc., 200 F. Supp. 360 (S.D. Cal. 1961)
9)
Violation of Securities and Exchange Act of 1934, 15
U.S.C. § 73n(a)—J.I. Case Company, v. Borak, supra.
10)
Violation of Rivers and Harbors Act of 1899, 33 U.S.C.
§ 401 et
seq.—Wyandotte Trans. Co. v. United States, 389
U.S. 191 (1967)
11)
Violation of Voting Rights Act of 1955, 42 U.S.C.
§ 1973 et
seq.—Allen v. State'Board of Elections, 393 U.S.
544 (1969)
12)
Violation of the Fair Labor Standards Act, 29 U.S.C.
§ 215(a)(3)—Fagot v. Flintkote Company, 305 F. Supp. 407
(E.D.La. 1969) .
As a remedy was implied for the above viola-
tions of federal law, one should be implied now for violation
of the Clean Air Act.
Some cases have emphasized the need for the party
claiming damages to comfe within the class protected by the
statute.
Respondents are clearly members of the class protec-
ted by the Clean Air Act because it applies to all citizens.
First, there is nothing inconsistent with such a broad
definition of the protected class in view of Bell and Bevins.
Second, even if those cases should be distinguishable since
they are based upon Constitutional, as opposed to statutory
a o i
30
protections, Respondents still are in a protected category.
Other.classes have included voters in Allen, the investing
public in :5orak, ana airline passengers in Wills.
potentially a member of such a class.
Anyone is
Therefore, Respondents
are members of the class protected by the Clean Air Act.
B
•
The purpose_and intent of Section 304 include private
claims f o f damages.
1.
The Section should be construed as an integral
part of the Clean Air Act is'seif.
Unlike .sany of the statutes which have been the basis
of implied damage remedies, the Clean Air Act explicitly
authorizes suits by individuals.
Section 304 enables individ-
uals to file suit against any person violating emission standards established pursuant to the Act.
This Section should
be construed to provide not only injunctive relief, but also
damages.
Since nothing in the Act states that only injunctive
relief is available, this position- is consistent with
Mr. Justice Holmes' advice to use "common sense in construing
laws as saying what they obviously mean."
279 U.S. 337, 341
Roschen v."Ward,
(1929).
If the plain language of Section 304 is not sufficiently obvious, then surely it becomes so when read in the
context of the entire Act.
Another former member of this
Court has admonished that the "totality of the enactment" is
the key to correct interpretation.
-Frankfurter, Come Reflec-
tions on the Reading of Statutes, 1 BENJAMIN N. CARDOZO
LECTURES, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 215,
221
(1970).
The Congressional findings and purposes contained in.
31
the first section of the Act express appreciation of the
"mounting dangers to the public health and welfare."
§ 1357.
42 U.3.C.
Resort to legislative history, reveals that strategies
of the past .have been "inadequate" anc. "hat the-' must be
accelerated, expanded, and intensified.
AND ADM. NEWS-, p. 5356.
Committee realized
1S70 U.S. CODE CONG.
More specifically, the Conference
need •' - capitalize on the momentum
existing at the "grassroot level."
Id., at 53 50.
Even before the 1970 enactment, the importance of the
private suit in pollution control had been recognized.
Juer-
gensmeyer, Control of Air Pollution Through the Assertion of
Private Rights, 1967 DUKE L.J. 1126.
Subsequently, the civil
action for damages has been advocated as an effective enforcement device.
Rosenthal, The Federal Power to Protect the
Environment:
Available Devices to Compel or Induce Desired
Conduct, 45 S. CAL. L. REV. 397, 420, 447 [1912).
Although
such su-ts cannot serve as the only means of pollution control,
they are an excellent method to exploit the popular momentum
f
found by the Congress.
Therefore, the Court has more than adequate grounds
for allowing damage suits on the basis of their theraputic
value.
The prospect of paying for injuries caused would be a
powerful incentive to stop pollution.
Thus, Congressional
purpose would be served.
As Section 304 should be read as part of the Clean Air
Act, so should the Act be read as part of national policy.
A
statute must be ". „ . merged into a going system of law. . . ."
Llewellyn, Remarks on the Theory of Appellate Decision and the
32
Rules' or Canons .About How. Statutes are to be Construed, 2 VAND.
I. REV. 395, 400 (1950).
In this context, the Congress has recognized that "all
practicable means and measures" should be employed to protect
the environment.
42 U.S.C. § 4331.
National Environmental Policy /.ct of 196 9 ,
Judicial interpretation of the Clean Air Act
has required strict compliance even when it has meant serious
economic reprecussions.
Company, 423 F.2d 469
904 (1970).
United States v. Bishop Processing
(4th Cir. 1970), cert, denied, 398 U.S.
This Court has referred to air pollution as one
of the most "notorious" problems in modern experience.
ington v. General Motors Corp., 406 U.S. 109
Wash-
(1972) .
(Statis-
tical information showing diseases associated with air pollution can be found in Appendix D.)
Holding that Section 304
authorizes damage suits supplies an essential element of
national environmental policy.
2.
The Section should be construed as a remedial
statute.
(
This Court has adhered to the rule that remedial
statutes should be construed broadly.
Miller v. Robertson,
266 U.S. 24 3 (1924); See also 3 J. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION, § 5702, at 69 (2d ed. 1943).
More
recently it has applied this rule to the Securities and
Exchange Act of 1934, 15 U.S.C. 78 et., seq.
Knight, 389 U.S. 332 (1967).
Tcherepnin v.
Characterizing that Act as
remedial is entirely consistent with implying a damage
remedy in view of Borak, supra.
Therefore, liberal interpre-
tation of the Clean Air Act calls for an implied remedy.
33
Judge Dobie remarked in United States v. Ba... .;imore &
0..v. Co., 133 F. 2d 831, 839
(4th Cir. 1943) that liberal
construction of remedial statutes was appropriate,
"...
particularly when this will tend to subserve, rather than
defeat, the purpose of the Act."
That observation applies
with equal force in the case at bar.
Because of the Congres-
sional purposes behind the Clean Air Act, a liberal construction should be given to Section 304.
The corollary of the rule requiring broad construction
of remedial statutes is that exceptions will be narrowly
construed.
A.H. Phillips, Inc. v. Wailing, 324 U.S.
(1945).
Moreover, the burden of proving an exception is upon the person
claiming it.
Weeks v. Southern Bell Telephone & Telegraph
Company, 408 F.2d 228
(5th Cir. 1969)."
Therefore, it is not for Respondents to prove that a
damage claim is encompassed in Section 304.
The doctrine of
implied damages taken together with the language of the
statute and its purpose is ample predicate for jurisdiction.
If any exception exists, it is for the Petitioner to prove
it.
Such an exception must be proved with "crystal clarity."
Scarborough v. Atlantic Coast Line R. Co., 178 F. 2d 253 (4t.h
Cir. 1949), cert, denied 339 U.S. 919
3.
(1950).
The Section should not be construed as an exception to the doctrine of implied damages.
Petitioner's best hope for proving an exception to
Section 304 appears to be reliance upon the maxim, Expressio
unius est exclusis alterius.
This m a x i m — l i t e r a l l y , the
expression of one thing is the exclusion of a n o t h e r — h a s
occasionally been accepted by this Court.
Switchmen's Union
£00
of North America v. Rational Mediation- 1 • .:d, 320 U.S. 297
(1943).
Nevertheless, this Court has also subordinated the
principle to the "dominating general purpose" of a statute.
Securities
- E. Com'n v. C. M. Jc.'ner L. Corp., 32 0 U.S. 34 4
(1943) .
If the principle has any application here, then it
should be subordinated to the dominating purposes of the Clean
Air Act.
Another weakness with such an argument is that it
would have to be based upon an expression of only injunctive
relief in Section 304.
expression.
Yet, the Section makes no such
42 U.S.C. § 1857h-2.
(Appendix A).
For these reasons, Petitioner must place its hope for
reversal upon S. REP. NO. 1196, 91st Cong. 2d Sess. 38
(1970) .
This report by the Committee for Public Works was
submitted prior to passage of the Senate version of the bill.
According to the committee, the bill makes no provision for
damage suits, or for that matter, class actions.
This item of
legislative history is placed in proper perspective by
Mr. Justice Jackson's comment. , "It is a poor cause that cannot find some plausible support in legislative history, . . ."
Jackson, Problems of Statutory Interpretation, 8 F.R.D. 121, 12
(1948).
(Article also appears at 34 A.B.A.J. 535 (1948).)
This report should not be taken as a controlling
expression of legislative intent.
First, and most obviously,
if the Congress intended to make such an exclusion, then why
did it not say so in the Act itself?
Why did it hide the
exclusion in a remote committee report?
Respondents suggest
that the answer to this question is thar the Congress did not
35
express an exclusion in the Act because the Congress did not
inte.:,' co make one.
Second, if the Congress intended to make such an
exclusion, then why did it not repeat the language in the
Joint Committee Report which harmonized the Senate and House
bills?
1970 U.S. CODE AND ADM. NEWS, p. 53o8.
Why was
omission of the exclusion not mentioned before fina,l passage
by the Senate?
Dec. 18, 1970).
116 CONG. REC. 5-20597—5-20611
(daily ed.
The answer is that the exlcusion vanished
from subsequent reports because the Congress did not intend to
confuse the Act with a contrary intent.
suggestions are only inferences.
Admittedly, these
Respondents' point is that
such inferences as may be drawn are just as strong, if not
stronger, for their position than for Petitioner's.
In Burnet v. Guggenheim, 288 U.S. 230, 288
(1933),
Mr. Justice Cardozo concluded that the inherent problem of
construction is making a choice between uncertainties.
solution'was to choose the "lesser uncertainty."
His
Jurisdiction
for a damage claim rests upon the certainty of the doctrine
of implied damages and the certainty of Congressional purpose
to combat air pollution.
The most that Petitioner can do is
to raise an uncertainty regarding the Sen:te report.
However,
any such uncertainty does not create a "crystal clear exception," and it should be resolved in favor of Respondents.
The district court correctly concluded that to deny
redress to individuals injured by violations of the Clean Air
Act would frustrate Congressional purpose.
(R. o).
That
judgment should be affirmed.
^
0
7
36
IV.
THE FEDERAL COURTS HAVE I'ENDENT JURISDICTION OVER THE
NUISANCE CLAIM.
Count II of Respondents' complaint alleged that the
same facts which proved a violation of the CIc,an Air Act also
proved a nuisance claim.
(R. 5).
Petitioner has stipulated
that the common lav/ of Effluvia provides for such a nuisance
action.
(R. 7).
been recognized.
Indeed, common law nuisance claims have long
William Aldred's Case, 77 Eng. Rep. 816
(K.B. 1611).
Petitioner's assertion that the federal courts lack
jurisdiction over the c.-aim should be rejected.
The doctrine
of pendent jurisdiction supplies authority for federal adjudication of this claim.
The decisions by the courts below, that
pendent jurisdiction would not be ousted even in the absence of
a damage claim under the Clean Air Act
(R. 8-S, 11-12), should
be affirmed.
A.
The allegations in the complaint are sufficient to
warrant the exercise of pendent jurisdiction.
- The doctrine of pendent jurisdiction has been traced
to the need for authority to decide all questions presented in
a case.
Osborn v. Bank of United States, S Wheat 7 38, 823
(1824); C. WRIGHT,FEDERAL COURTS § 19, at 63 (2d ed. 1970).
In distinguishing pendent jurisdiction from ancillary
jurisdic-
tion, it has been seated that, "Joinder of claims, not joinder
of parties, is the object of- the doctrine."
407 F.2d 136, 137 (Sth Cir. 1969).
Hymer v. Chai,
The desirability of this
joinder of claims in terms of judicial eccnomy and efficiency
was noted by the court of appeals in the present case.
(R. 11).
Two decisions by this Court reprt sent the alpha and
213
37
omega of the doctrine of pendent jurisdiction.
Respondent?'
nuisance claim could be heard under either of them.
Hum
v.
Pursier, 289 U.S. 238 (1933) held that federal courts had
jurisdiction to adjudicate state claims which were merely
distinct grounds of a single cause of action.
In H u m
the
Court held that a federal claim for copyright infringement
and a state claim for unfair competition satisfied the test.
Application by the lower courts of the H u m
resulted in considerable confusion.
test
The test was variously
interpreted as "identical facts" Strachman v. Palmer,'177
F.2d 427 (1st Cir. 1949); "substantially the same facts"
Zalkind v. Scheiman, 139 F.2d 895 (2d
Cir. 1943), cert.
denied 322 U.S. 738 (1944); and "substantially identical facts"
Dann v. Studebaker-Packard Corp., 288 F.2d 201 (6th Cir. 1961).
Although this situation was criticized for its indefiniteness,
W. BARRON & A. KCLTZOFF, FEDERAL PRACTICE S PROCEDURE, § 23,
at 100 (Wright ed. 1960); the facts to support the present
case could satisfy even these restrictive tests.
If ar«y indef initeness existed under the H u m
test, it
was removed by United Mine Workers of .avierica v. Gibbs 38 3 U.S.
715 (1956).
Criticizing the old approach as "unnecessarily
grudging," the Court held that state claims could be tried
with federal claims when they sprang from a "common nucleus of
operative fact".
Gibbs, at 725.
The common nucleus in the
case at bar is the emission of sulfur dioxide.
Emissions from
th e smelter not only violated the Clean Air Act but also
constituted a nuisance.
Jurisdiction over pendent state claims has become so
£00
38
common that its codification has been urged.
ALI, Study of the
Division of Jurisdiction Between State and Federal Courts,
S 1313, at 10-11
(Tent. Draft No. 6, 1968).
The applicability
of this doctrine to Respondents' case is illustrated by Almenares
v. Wyman, 453 F.2d 1075 (2d Cir. 1971), cert, denied, 405 U.S.
994 (1972).
There the court allowed pendent jurisdiction over
a class action even though the class in the primary claim was
not entirely coextensive with the class in the pendent claim..
Here the same class seeks redress on both claims; pendent
jurisdiction provides the means.
B.
Petitioner's cessation of operaticns should not oust
jurisdiction over the nuisance claim.
1.
Mootness does not oust federal jurisdiction.
Pendent jurisdiction attached at the time the complaint was filed.
Petitioner's attempt to avoid trial depends
upon a finding of no jurisdiction for a damage claim under the
Clean Air Act.
If such a finding were made, then Petitioner
could argue that since the injunction issue was moot, no basis
for federal jurisdiction remained.
There are cases which hold that if the federal claim
is disposed of before trial, the pendent claim may be dismissed.
Wham-O-Mfg. Co. v. Paradise Manufacturing Co., 327
F.2d 748 (9th Cir. 1964).
However, the district court rejected
this proposition in favor of the broader view in Hazel Bishop,
Inc.
v. Perfemme, Inc., 314 F.2d 399
(2d Cir. 1963).
(R. 9).
Affirming this decision, the court of appeals noted that
Respondents did not plead a federal question merely to secure
a federal forum for their state claim.
(R. 11-12).
The
interests of judicial economy and fairness were promoted by
213
39
this holding.
Underlying the reasoning of the courts below is the
principle chat federal jurisdict.ion . is not ousted by mootness.
"Along wit'-; its power to hear the case, the courts' power to
grant injunctive relief survives discontinuance of the illegal
conduct."
United States v. W.T. Grant Co., 345 U.S. 629, 632
(1953); Hecht Co. v., Bowles, 321 U.S. 321
(1944)..
Therefore,
even if there is no jurisdiction fo..' damages under the Clean
Air Act, there would still be jurisdiction to hear the pendent
claim ^espice the mootness of the injunction issue.
2.
Exercising jurisdiction over the pendent claim is
not an abuse of discretion.
Gibbs has been held to require "two discrete inquiries"
as to pendent jurisdiction:
First, power to hear the state "
claim; second, assuming power, discretion to hear the state
claim.
Leather's Best, Inc. v. S.S. Mormaclynx, 4 51 ?.2d 8 00
H d Cir. 1971).
The courts below already had power to hear
Respondents' claim.
Particularly in view of Petitioner's
efforts to escape jurisdiction, t-he district court's ruling
does not give rise to an abuse of discretion.
Moreover, discretion to hear the case is justified
by pragmatic interests as well as the interest of fairness to
Respondents.
Commenting on Gibbs, former Solicitor General
Cox noted, " . . .
where the state claim is related to impor-
tant questions of federal policy, the case for exercise of
pendent jurisdiction would be particularly strong."
Supreme Court, 196 5 Term, 80 HARV. L. REV. 91, 224
Cox, The
(1966).
Federal air pollution policy further strenghtens the decision
213
52
by the courts below to exercise pendent jurisdiction.
Neither mootness of the injunction, nor denial of the
federal damage claim should defeat pendent
jurisdiction.
Responding to similar issues in Taussig v. Wellington Fund,
Inc., 312 F.2d 472
(3d Cir. 1963) cert, denied 374 U.S. '806
(1963), the court held " . . .
actual right to relief under
some federal statute need not be established to justify adjudication of the merits of the common law claim."
Taussig, at
475.
Any remaining doubt was resolvea by Rosado v. Wvman,
397 U.S. 397
(1970).
Relying on the power-discretion analysis,
the Court rejected the contention that mootness of the primary
claim is a threshold jurisdictional defect.
The Court went on
to allow a class action on a pendent claim although the primary
claim was moot.
Pendent jurisdiction over the nuisance claim
presents the same question; it should receive the same result.
CONCLUSION
For the reasons stated, Respondents respectively pray
that the judgment of the United States Court of Appeals for
the Twelfth Circuit be affirmed in all things.
Respectively
submitted,
>
/
t
.
-7
V
•> ,
,
Charier,
Grigson
Grover Hartt, III
Wynette J. Hewett
41
CERTIFICATE
We certify that this brief h-s been prepared and
served in compliance with the 197 2 Nationa.- Moot Court Competition Rules.
Cuarxes 0
>
Grigson
/
-v'
biover xiar'cc, i n
i
\
Wy .ette J. Hewett
2
1
3
A P P E N D I C E S
Page
APPENDIX A
Judicial Code and Judiciary,
23 U.w.C. S 1291 (1958)
A-I
Judicial Code and Judiciary,
28 U.S.C. § 1292 (1958)
A-l
Cle::.n Air Act, as amended,
42 U . S . C .
§ 1857C-4
(1970)
A-l
Clean Air Act, as amended,
42 U..S.C. § I357h-2 (1970)
A-2
Federal Rules of Civil Procedure.
Rule o ia.)
A-4
Federal Rules of Civil Procedure,
Rule 23
Federal Rules of Civil Procedure,
Rule 54(b)
.
A-4
A-6
APPENDIX B
Notice by Publication, Blechele v.
Norf•• "Ik & Western Railway Co. , 309
F. Supp. 354 (1969)
B-i
APPENDIX C
Restatement (Second) of Torts
C-l
APPENDIX D
R. Ridker, ECONOMIC COSTS OF AIR
POLLUTION, (1967)
D-I
A—1
A P P E N D I X
A
JUDICIAL CODS AKD JUDICIARY, 28 U.S.C. § 1291
§ 1291.
(1958)
Final decisions of district courts
The courts of appeals shall have jurisdiction of
appeals from all final decisions of th« district courts of the
United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the
District Court of the Virgin Islands, except where a direct
review may be had in the Supreme Court.
JUDICIAL CODE AND JUDICIARY, 28 U.S.C. § I2S2 (1958)
§ 129 2.
Interlocutory decisions
(b) When a district judge, in making in a civil action
an order not otherwise appealable under 'this section, shall be
of the opinion that such order involves a controlling question
of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of
Appeals may thereupon.- in its discretion, permit an appeal to
be taken from such order, if application is made to it wihtin
ten days after the entry of the order: Provided, however,
That application for an appeal hereunder shall not stay
proceedings in the district court unless the district judge
or the Court of Appeals or a judge thereof shall so order.
CLEAN AIR ACT, as amended, 42 U.S.C. § 1857c-4
§ 1857c-4.
(1970)
National primary and secondary ambient air quality
standards; promulgation; procedure
(a) (1) The Admir.istrator-(A) within 30 days after December 13, 1970,
shall publish proposed regulations prescribing a national primary ambient air quality standard and a national secondary
ambient air quality standard for each air pollutant for which
air quality criteria have been issued prior to such date; and
(B) after a reasonable time for interested
persons to submit written comments thereon (but no later than
90 days after the initial publication of such proposed standards) shall by regulation promulgate such proposed national
primary and secondary ambient air quality standards with such
modifications as he deems appropriate.
(2) With respect to any air pollutant for which
air quality criteria are issued after December 31, 1970, the
221V
A- 2
Administrator shall publish, simultaneously with the issuance
of such criteria and information, proposed national primary
and secondary ambient air quality standards for any such
pollutant. The procedure provided for in paragraph (1) (E)
of this subsection shall apply to the promulgation of such
standards.
(b) (1) National primary ambient air quality
standards, prescribea under subsection (a) of this section
shall be ambient air quality standards the attainment and
maintenance of which in the judgment of the Administrator,
based on such criteria and allowing an adequate margin of
safety are requisite to protect the public health.
Such
primary standards may be revised in the same manner as
promulgated.
(2) Any
itional secondary ambient air quality
standard prescribed under subsection (a; of this section
shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based
on such criteria, is requisite to protect the public welfare
from any known or anticipated adverse effects associated with
the presence of such air pollutant in the ambient air.
Such
secondary standards may be revised in the same manner as.promulgated .
CLEAN AIR ACT, as amended, 42 U.S.C. § IS57h-2
§ 18 57h-2.
Citizen suits—Establishment of right to bring
suit
(a) Except as provided in subsection (b) of this
section, any person may commence a civil action on his own
behalf—
(1) against any person (indue-"ng (i) the United
States, and (ii) any other governmental
..;:umenta I i t y or
agency to the extent permitted by the Eleventh Amendment to
the Con stitution) who is alleged to be in violation of (A)
an emission standard or limitation unoer this chapter or (B)
an order issued by the Administrator or a State with respect
to such a standard or limitation, or
(2) Against, the Administrator where there is
alleged a failure of the Administrator to perform any act or
duty under this chapter which is not discretionary with the
Administrator.
The district courts shall have jurisdiction, without regard
to the amount in controversy or the citizenship of the
parties, to enforce such an emission standard or limitation,
or such an order, or to order the Administrator to perform
such act or duty, as the case may be.
A-3
Notice
(b) No action may be commenced-(1) under s .bsection (a'; (1) of this section-(A) prior to 6 0 day., after the plaintiff
has given notice of the violation i.i) to the Administrator,
(ii) to the State in which the violation oc'-urs, and (iii)
to any alleged violator of the standard, limitation, or
order, or
(B) if the Administrator or State has
commenced and is diligently prosecuting a civil action in
a court of the United States or a State to require compliance
with the standard, limitation, or order, but in any such action
in a court of the United States any person may intervene as a
matter of right.
(2) under subsection (a) (2) of this section prior
to 60 days after the plaintiff has given notice of such action
to the Administrator,
except that such action may be brought immediately after such
notification in the case of an action under this section
respecting a violation of section 1857c-7(c) (1) (B) of this
title or an order issued by the Administrator pursuant to
section 1857c-8(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall
prescribe by regulation.
Venue:
intervention by Administrator
(c) (1) Any action respecting a violation by a
stationa-y source of an emission standard or limitation or an
order respecting such standard or limitation may be brought
only in the judicial district in which such source is located.
(2) In such action under this section, the
Administrator, if not a party,' may intervene as a matter of
right.
Award of costs; security
(d) The court, in issuing :ny final order in any
action brought pursuant to subsection (a) of this section, may
award costs of litigation (including reasonable attorney and
expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary
restraining order or preliminary injunction is sought, require
the filing of a bond or equivalent security in accordance with
the Federal Rules of Civil Procedure.
Non-restriction of other rights
(e) Nothing in this section shall restrict any
right which any person (or class of persons) may have under
A-
any statute or common law to seek er. "orcement of
\y emission
standard or limitation, or to seek any other relief (including
relief against the Administrator or a State agency).
Definition
(f) For purposes of this section,, the term
"emission standard or limitation under this chapter" m e a n s —
(1) a schedule or timetable of compliance,
emission limitation, standard of performance or emission
standard, or
(2) a control or prohibition respecting a
motor vehicle fuel or fuel additive, which is in effect
under this chapter (including a requirement applicable by
reason of section 1857f of this title) or under an applicable
implementation plan.
FEDERAL RULES OF CIVIL PROCEDURE, RULE 8
Rule 8.
General Rules of Pleading
(a) 'Halms of Relief. A pleading which sets forth a
claim for relief", whether an original claim., counterclaim,
cross-claim, or third-party claim, shall contain (1) a short
and plain statement of the grounds upon which the court's
jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to
support it, (2) a short and plain statement of the claim
showing that the pleader is entitled to releif, and (3) a
demand for judgment for the relief to which he deems himself
entitled. Relief in the alternative or of several different
types may be demanded.
FEDERAL RULES OF CIVIL PROCEDURE, RULE 2 3
Rule 23.
Class Actions
(a) Prerequisites to a Class Action. One or more
members of a class may sue or be sued as representative parties
on behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are questions
of law or fact commo . tc the class, (3) the claims or defenses
of the representative parties are typicaJ of the claims or
defenses of the class," and (4) the representative parties will
fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be
maintained as a cxass action if the prerequisites of subdivision
(a) are satisfied, and in addition:
^±s
|
A-5
(1) the prosecution of separat. actions by or
ac.--.nst individual members of the class wou_^ create a risk
of
(A) inconsistent or varying adjudications with
respect to individual members of the class vihich would
establish incompatible standards of conduct for the party
opposing the class, or
(B) adjudications with respect to individual
members of the class which would as a practical matter be
dispositive of the interests of the other members n-":t parties
to the adjudications or substantially impair or impede their
ability to protect their interests; or
(2) the party opposing the class has acted or
refuse'" to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a
whole; or
(3) the court finds that the questions of law
or fact common to the meivuers of the class predominate over
any questions affecting only individual members, and that
a class action is superior to other available methods for
the fair and efficient adjudication of the controversy.
The matters pertinent to the findings include:
(A) the
interest of members of the class in individually controlling
prosecution or defense of separate actions; (I; the extent
and nature of any litigation concerning the controversy already commenced by or against members of the class; {C) the
desirability or under-...rability of concentrating the litiga- .
tion oi the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class
action.
(c) Determination by Order Whetner Class Action
to be Maintained; Notice; Judgment: Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action brought as a class action, the court shall
determine by order whether it is to be so maintained. An
order under this subdivision may be conditional, and may be
altered or amended before the decision on the merits.
(2) In any class action maintained under subdivision (b) (3), the court shall direct to the members of the
class the best notice practicable under the circumstances,
including individual- notice to all members who can be identified
through reasonable effort. The notice shall advise each member
that (A) the court will exclude him from the class if he so
requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request
£
1
9
A-3
exclusion; and (C) any member who does not request exclusion
may, if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a
class action under subdivision (b)
_) or (b) (2), whether
or not favorable to the class, shall include and describe
those whom the court finds to be members of the class. The
judgment in an action maintained as a class action under subdivision (b; ( J ) , whet he;;' or not favorable to the class,
shall include and specify or describe those to whom the notice
provided in subdivision (c) (2) was directed, and who have not
requested exlcusion, and whom the court finds to be members of
the class.
(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular
issues, or (B) a class may be divided into subclasses and
each subclass treated as a class, and the provisions of this
rule shall then be construed and applied accordingly.
(d) Orders in Conduct of Actions.
In the conduct
of actions to which this rule applies, the court may make
appropriate orders:
(I) determining the course of proceedings
or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the.members of the class or othwewise for the fair conduct of the action, that notice be given
in such manner as the court may direct to some or all of the
members of any step in the action, or of the proposed extent
of the judgment, or of the opportunity of members to signify
whether they consider the representation fair and adequate,
to intervene and present claims or defenses, or otherwise to
come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the
therefrom allegations as
to representation of absent persons, and that the action proceed accordingly; (5} dealing with similar procedural matters.
The orders may be combined with an order under Rule 16, and
may be altered or amended as may be desirable from time to
time.
(e) Dismissal or Compromise. A class action shall
not be dismissed or compromised without the approval of the
court, .• nd notice of the proposed dismissal c . compromise shall
be givc.n to all members of the class in such manner as the
court directs.
As amended Feb. 28, 1966, eff. July 1, 1966.
FEDERAL RULES OF CIVIL PROCEDURE, RULE 54
Rule 54.
Judgments; Costs
A-3
(b) Judgment Upon Multiple Claims or Involving
Multiple Parties. When more than one claim for relief is
presented in an action, v-hether 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. 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
parries shall not terminate the action as to any o f the
claims or parties, and the order or other form of decision
is subject to revision is subject to revision at any time
before the entry of judgment adjudicating ail the claims
and the rights and liabilities of all the parties.
B-1
NOT-ICE B Y
PUBLICATION
echelc v. Norfolk & Western Railvay Co., 309 F. Supp. 354
SOD I ^ S S E A L BXJPPLEME:;.-.
APPENDIX
Iti.
Lm I
>J
\\ Las
li
S "vt..
u L
,-t i'.-.-a
TO ALL PERSONS CLAIMING TO BE A P r Z C C F O
BY COAL DUST FROM THE LOWifR L..AKE l:c:.::S
OF THE NORFOLK & WESTERN RAILWAY COMPANY
!N THE UNITED STATES DISTRICT C0UP7
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
C'^M-Si Diecho'c. ot al.,
Pl«intiff»,
vs.
Nor»oll< Ci V / s j t o r n R a i l w a y C o r n patty.
Defendant,
Mo. C 60-IS?
TO ALL P-- .SONS LIVING OR OWNING REAL ESTATE WITHIN THE ARSA OUTLINSi ON
7H6 MA? DEIOW, AND TK5 ZOUiNDAiUES SET FORTH IN THE DODY* OF V.-".r. NOViCSi
Yew aro horoby novifiod t h a t tho District
Courr
'«!io Unitud S t a t e s ft.' tho N o r t h e r n
District of C ! n o , V/aatorn Division, has ordofod
t h a t tiiia i w ' i j n p r o c o c o
o class a c t i o n ,
whoroin ail persons living -if ownir-g p r o p e r t y
witi-.ia ViSo following doscribod boundaries
of fho clans:
C o m m o n c i n g on tho thcro of Loko Erio
at t"!"i-i»
pain? ov O s d a r P o i n t ;
thonco souihoo6»v»'iy oiong vl;o thoru of L a k o
£rio t o
of tho C o d o r Point
x b<K'innir«:j
Cou&o'ivwy; vhoi. -. s'.s.thorly along tho c o n . c r
ov vSg C a d o r ?c;.r» Cl-«:.»'> w a y ar.d
-ivvoy
ilviv-* *© two ccr^cr c; Cleveland
•honed oattorly along tho center of C l e v e land
R o a d to R e m i n g t o n A v o n u o ;
ther.co
southerly alone; tho c J
r of
Rominglon
A v o n u o to Perkins A v o r . j t ; thence © a d o r l y
a l o n g tho -cantor oi
-\ir.s A v e n u * ta S i r u b
R o o d ; thonco sout.%
larly a n d wc . . iy
along v!.: tontor of Svrub R o a d to O l d
IIr o a d Ro««.': thonco »oui!v.vA:tofly olonn '.' ••>
contor of O l d R a i l r o a d i'inaC to E>ogart .io:. .;
thonco wostorly along vKo c a n t e r of u o g a r t
r o a d to S t a t e Routo
thonco northerly
along tho contor of S'.v.
Ticvv^
io Stato
Psoutoi 12 .:.id 101; J/.- r . : j \v;wi»r!y d o n g tho
contor of Svcv.v
i-*s 1* &nci i O l to M ; , ^
A v o n u o ; 4foonco northerly 6fc»«g ) h c conic.* of
(1969)
B-2
J — V .
,'OLK & WESTS
•Suyp. 35.) (1000)
C i t e (in 300 V
of tho protection
• in
ono it ultimately . .. .d,
fvtaplo Avcnuo to U.S. Route 6 and Stot©
}>oui 3 2':; thor.co v/ottorly along tho confer
of U.S. .\outo O and S t a t e .',cu?o 2'i to Stato
i-.outo 269; thanco northerly . iong i! ; contor
oi State Rouio 269 to Stave i\oute
thoncu
northerly along tho contor lino of
Stoto
Aouto 2 vo 1H point of Intersection with th©
Erie-Ottawa County
; thcnco easterly
o c r j i a Sanduiky Bay »'•-- ilio place of beginning.
A t to claims '.i'.' auf'AoQb^
n i n or
proporty, rogardloni of ihy t^vcorii
...,i-lov/.
auit, all tuch claims will
barr*:- unle;: tho
perion eftiorting »uch cl~!f.i •.;.iori his appearonco in thift action on or • . .fore November u,
I960.
IF Y O U W A N T T O M A K E A CLAii.-: F O R
D A M A G E S , you ma'/ prmervo your rig';.!
ri-»
,o by complotolng tno form hott! ii Li-!'. • . Or
APPEARANCE
tho b o i i o M of ii-.ii ne.:-.^. or
by writing a lottor toyir.-. v.>-v y t u r.nior your
appaaron^.o in t h i l law.tjir, t n u m ,iiin.j vho
fico or loHor to vim C k . k of tK^f U n i . ^ J j '
a
Di:trict Court, 1716 Spiolbusch Avon-: , Vo!
j,
Oliio, 4362*4, or by haviii-^ your l^wy^r do i.iil
for you.
IF YOV; l i v e O R O W N R E A L
EST/.V2
W I T H I N T H O S i DC . D A R I c S . you aro a member o." the clesa, and unless vou make a .written
rocc : to bo oxcluJwiJ. V O U W I L L
INC L ' J Z ^ D I N A N D " J O U N O DY T H E J U D G M E N T
R E N D E R E D wV "»..'• C O U R T , whother it is vavorjbio or u n t t i V O f A : . t o you.
IF Y O U W A N T T O DE r . ^ L U D E D from •
membership in tho c l a n , y--.: must complete
. « d %ion the form headed i\'-QUEST F O R EXC L U S I O N at tho bottom of this notico or write
a Jotter r e q u e u i n g exclusion, an.-i .nail it to the
Clerk of tho United Sii.tos District Court, 1716
Spielbusch Avanuc, Toledo, Ohio, 43624, or
hfivo your lawyer do this for you,
A L L R E Q U E S T S F O R I N C L U S I O N O ' i ENTUISS O F A P P C . ' . ' . A N C S M U S T SE f I L E O
Vv:,;-! TI-:S CL;:.. ' OR POSTWAR::'".:".- i\0
L A T E R T H A N i / ,:C1HT O N
f i U O A Y ,
N O V E M B E R 0. IV6C. O S T H E Y V.'iLL l i INEFFECTUAL.
This fiction it
-osontly at itluo. or.ci
may
c..: : ^ Tor nov.rir.r by tho C;;urt' c't
any timo aviwr N o v o m b jr
IVui..
IP YOU DO NOT WANT TO DE EX-
C L I J D E O , but w a n t to have your own lawyer
r e p l i a n t you, you should instruct hirn to c n i i c
your »:ppcorc.nco.
THE COUNT'S C R D : ? . THAT T S I S
TION S H A L . ; T , r c « o AS A c i a j ;
T I O N IS N O T
w£Te.U:;t-/.TiCM O F
O F TH5 CLAU,
This oc'. ion involves t w o matters, a claim
tar on order of injunction restraining tho c!o.'onec^t Norfolk £ Woavern R a i l w a y C o m p a n y
from continuing tho activities alloged to causo
coal dutf vo be blown about, and clti.ns for
damages to poraon and property a l l o g o j to
have bogn cau.;-,J by coat dust.
Ai:'.".:.TED, AND
DON J." YOUNG
Unitod S t a l i t
REQUEST FOR
D i s i r k i Juc'.;o
EXCLUSION
J a i l o r SicctScIo, ot ..!.,
pi.-.lnviffi,
No. C oi-139
Company,
Tho undeni^nod rocfuoiti to
lionod action.
ACAC.
TH3
is c x - Y A PRELIMINARY
de;:. '.NATIO,-' .'.5 TO THE ""TiNYI.'\L
PART: . iNVOLVeC. VHS ScCISi-iN AS TO
WHETK5R ANY 5U!JUNCT;V^ R£L!SF V.-.L
BE GRANTED 0.1 ANY ".'.: :AGES AWAR3.
ED WILL FOLLOV/ A T...AL ON The MERITS OF THE ACTION.
A s to tho claim for injunction, all portona
living or owning real ostato wi/i.in the boundaries described abovo wili bo bound by the judgment in this action whether it it ..>"orable or
unfavorable, unless vhov roqu,»'.t OKci jiion. They
need take no action ov any kind to i>o assurod
Nor^cll; i i W o : i t r n R a i l w a y
Defendant,
ov injunction r,
w u c l u J c J from the claaa of portion plaitni>V to *«I>J ALSVO cap*
Namo
..
Addrota
ENTRY O r
APPEARANCE
Dallac Ciocholc, ot
Plaiviiffl,
Nori'c.., i
Vs'oitorn R a i l w a y
Dofortdant.
•No. C 6C-129
Company,
* naraby untor my - ^ a a r c n c o co a mo,nbor of tho cloo» of ,>.ir?ioi: ^icitivi// to the ab;.-vu ocNamo
.
Addroaa
309 F.Supp.—23Va
221V
c - 1
A P P E N D I X
RESTATEMENT
§ 28 6.
C
(SECOND) 0? TORTS
When Standard of Conduct Defined by Legislation or
Rec '.ation Will 3e Adopted
The court may adopt as the standard of conduct of a reasonable
man the requirements of a legislative ena.ctment or an administrative regulation whose purpose is found to be exclusively
or in part
!a) to protect a class of perso...s which includes the
one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm
which has resulted, and
(d) to protect that interest against the particular
hazard from which the harm results.
Comment d. Where no provision for civil liability. The
enactment or regulation may, however, provide only for criminal liability, and not for civil liability; or in rare instances
it may merely prohibit certain conduct, and contain no provision
for any liability at all. In such cases the initial question is
whether the legislation or regulation is to be given any effect
in a civil suit. Since the legislation has not so provided,
the court is under no compulsion to accept it as defining any
standard of conduct for purposes of a tort action.
Where criminal legislation, although constitutional,
is entirely unreasonable or inappropriate—as were-, for
example, there is an automobile speed limit of six miles an
hour, enacted in 1908 and never r e p e a l e d — t h e court has no
choice, in a criminal prosecution, but to apply the law so
laid down. But since it is under no such compulsion in a civil
suit, it may still treat the provision as inapplicable for the
purposes of defining negligence in such a suit. In doing so,
it may rely on the justification that the legislature has
indicated no intention that it shall be so applied, since nothing
more than a criminal penalty has been provided. Obviously cases
will be re I-....tively infrequent in which legislation directed to
the safety of persons or property will be so obsolete, or so
unreasonable, or for some other reason inapplicable to the case,
that the court will take this position; but where the situation
calls for it, the court is free to do so.
On the other hand, the court is free, in making its own
judicial rules, to adopt and apply to the negligence action the
standard of conduct provided by such a criminal enactment or
regulation. This it may do even though the provision is for
221V
C-2
ine reason entirely ineffective for tis initial purposes, as
ere a traffic sig,.al is set up under an crdiru. ce which never
s been properly published and so for the purposes of a criminal
osecution is entirely \ -id. The c ..cision to adopt the standard
purely a judicial one, for the court to make* When the court
es adopt the legislature standard, it i acting to further the
neral purpose which it finds in the leg-wa.utionand not beuse it is in way required to do so.
On the same basis, the court may adopt the standard of
nduct laid down by an administrative regulation. The courts
ve tended to adopt administrative standards less frequently
an those of legislative enactments.
Again on the same basis, statutory provisions have been
cepted by the courts as a basis for civil'liability in actions
r torts other than negligence, such as trespass, deceit,
isance, or even struct liability.
D~1
A P P E N D I X
D
R. RIDKER, ECONOMIC COSTS OF AIR POLLUTION., at 54 (1967)
RESOURCE COSTS Q:7 DISEASES ASSOCIA'i ".<D T7Z./Z
f:
i
f
ype of
lost
Mi".icao of $
.
" ".iated v/itrSelc rite vDiseases,
Costs A
.;.:.ncer
of vhe
Respiratory Chronic
System
Ire mature
\ Death
513
'remature
; Burial
i5
'reatmen'c
35
POLLUTION
I
i
Common
Acute
Bronchitis Cold
13
i
Emphysema Asthma;
r.
6
na
0.2
na
09
na
200
52
na
1 «•.. •• 1
o. 2
331
59
i
i
i
i
0.7
2
-J.O
i
Lbsenteeisrr.
'otal
•'-•O-i
Uvi J
Source: Appendix Tables
t
;> n<
...r •v.
iMlU
i
75
1
na
.'•OU
na
! 60
64
j 259
;
!
i
J.
a
Using a discount rate of 5 per cent.
2
2
6