MOTION FOR RECALL OF MANDATE AND AMENDMENT OF JUDGMENT.
Adams, Hunter and Garth, Circuit Judges. Hunter Circuit Judge, dissenting.
The EPA has moved this Court to recall the mandate and to amend the judgment in American Iron and Steel Institute v. EPA (AISI I),*fn1 decided by us on November 7, 1975. Two primary issues must be considered in connection with such a request: first, whether - and, if so, when - this Court has the power to reconsider and modify a judgment after the time for rehearing has expired; and second, whether the EPA's motion to recall the mandate should be granted under the circumstances present here.
This controversy originally arose when the American Iron and Steel Institute and several steel companies petitioned this Court to review water pollution regulations designed by the EPA. Promulgated for companies engaged in basic iron and steel manufacturing operations, such regulations established single-number effluent limitation standards for point sources in the industry.*fn2 In seeking judicial review, the Institute and the other petitioners challenged the authority of the EPA to issue effluent limitation regulations and contended that, in any event, such regulations failed to conform to the requirements of the Federal Water Pollution Control Act Amendments of 1972 (Act).*fn3 Although this Court held that the EPA has the power to issue the regulations in question,*fn4 the regulations were deemed to diverge, in certain respects, from the statutory strictures.
Specifically, the AISI I panel ruled that the regulations did not comport with § 301*fn5 and § 304*fn6 of the Act. We construed those provisions to require that the § 301 limitations represent "both the base level or minimum degree of effluent control permissible and the ceiling (or maximum amount of effluent discharge) permissible nationwide within a given category",*fn7 and that the § 304 guidelines "provide precise guidance to permit issuing authorities in establishing a permissible level of discharge that is more stringent than the ceiling."*fn8
Consonant with such an interpretation, the EPA was instructed to promulgate, on remand, § 304 guidelines which would specify "permissible 'ranges' of limitations" and "factors to be taken into account" by permit-issuing authorities in setting effluent limitations for particular point sources.*fn9 Also, the Administrator was ordered to "reconsider the [§ 301] limitations with the base level and ceiling concepts in mind."*fn10 The matters to be dealt with on remand, and the underlying rationales, are delineated in considerable detail in the AISI I opinion.*fn11
Immediately after our decision in AISI I, four other courts of appeals considered the "range" and "guidance" questions.*fn12 Each of these tribunals, however, reached a conclusion contrary to that of this Court: they sustained single number effluent limitation regulations, as designed for various industrial categories, and declined to order the EPA to reconsider or amend its § 301 and § 304 standards. As a result, the position of this Court with respect to the "range", "guidance" and related matters deviates from that of all other courts of appeals which have spoken on the issue.
Despite such a schism, the EPA has initiated efforts to develop regulations and guidelines for the iron and steel industry in conformity with the mandate of this Court. Nonetheless, we were advised at oral argument that only limited progress has been made in developing "ranges" and "guidance" factors. Perhaps such lack of advancement reflects the magnitude of the EPA's duties on remand as well as its anticipation that the Supreme Court would settle the uncertainty whether the tasks prescribed by this Court are required by the Act.
On February 23, 1977, the Supreme Court decided E. I. duPont de Nemours and Company v. Train*fn13 - its first foray into the interpretative morass surrounding § 301 and § 304 of the Act. That case concerned the review of a set of regulations crafted by the EPA for the inorganic chemical industry which are essentially identical in form to those implicated in AISI I. And the duPont Court approved the single-number effluent limitations as promulgated.
Thereafter, the EPA filed its motion to recall the mandate and modify the judgment in AISI I. The agency asserts, inter alia, that the construction of the Act as set forth in the opinion of this Court, together with the instructions to develop "range", "guidance" and related factors for regulation of the iron and steel industry, deviates from the Supreme Court's opinion in duPont.
Given this backdrop, we proceed to determine whether this Court may reconsider and modify a judgment following the expiration of the rehearing period and, if so, whether the relief that the EPA seeks is appropriate in the present context.
It is not surprising that there are relatively few precedents dealing with the question whether a court of appeals possesses the authority to recall a mandate. Undoubtedly, litigants may have been deterred from bringing "recall" petitions by the weighty policy interests which undergird the salutary principle that there should be an end to a controversy in litigation: Not only should parties be entitled to rely on a judgment as the final settlement of their dispute, but courts must be able to clear their dockets of decided cases in order to permit them to hear new controversies which have arisen and require resolution by the judicial process. Put another way, parties should be afforded ample opportunity to litigate their claims, but once a final disposition is reached they should not expect that the good offices of the court will be available for a chance to press their claims anew.
Despite these considerations, it would appear that an appellate court does have the power to recall a mandate in appropriate instances. Insofar as we have been able to ascertain, this Court has not spoken on the issue.*fn14 But many of our sister circuits have accepted, without question, the proposition that courts of appeals may vacate their judgments in certain limited circumstances.*fn15 Apparently, no court now takes the position that a federal tribunal lacks authority to recall its own mandate.
The source of the power to recall a mandate has not been conclusively identified. One court of appeals has discovered a "foundation in statute" for judicial authority to recall a mandate.*fn16 It points to 28 U.S.C. § 2106, which expressly authorizes an appellate court to affirm, modify or vacate any judgment as that court may deem to be "just under the circumstances." While, on its face, § 2106 seems to apply primarily to review by an appellate tribunal of a judgment or order of an inferior court, arguably the statute sanctions reassessment by a court of appeals of its own decisions as well.*fn17
Most courts of appeals have rooted the authority to recall a mandate in the "inherent power" of a court. The Eighth Circuit, sitting en banc, has posited, for example, that a mandate may be recalled "in the exercise of this court's supervisory power over [a] litigation and in order to protect the integrity of this court's [earlier] mandate. . . ."*fn18 Likewise, a panel of the Ninth Circuit has declared: "The authority of a Court of Appeals to recall a mandate is not conferred by statute, but its existence cannot be questioned. . . ."*fn19
Thus, although there are various possible sources of judicial power to recall a mandate, it is well recognized that a court of appeals has such authority. In light of this recognition, and reflective of the fact that the parties to the present controversy do not contest such a premise, we conclude that ...