UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 5, 1983
UNITED STATES OF AMERICA, APPELLANT
WADE, MELVIN R. AN INDIVIDUAL; EASTERN RUBBER RECLAIMING, INC., A CORPORATION, AND ABM DISPOSAL SERVICE CO., INC., A CORPORATION, TYSON, FRANKLIN P., AN INDIVIDUAL, BARNHOUSE, ELLIS, AN INDIVIDUAL, SLASS, LARRY H., AS TRUSTEE IN BANKRUPTCY OF ABM DISPOSAL SERVICE CO., INC., APOLLO METALS, INC.; CONGOLEUM CORPORATION, GOULD, INC.; H.K. PORTER COMPANY, INC.; SANDVIK STEEL, INC.; SUPERIOR STEEL COMPANY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Hunter, Higginbotham, Circuit Judges and Ziegler,*fn* District Judge.
Opinion OF THE COURT
HUNTER, Circuit Judge:
1. The United States initiated this action under section 7003 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6973 (1976 & Supp. V 1981), and section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9606(a) (Supp. V 1981), seeking, inter alia, permanent injunctive relief to remedy an alleged health and safety threat posed by the leakage of hazardous chemicals from a dumpsite in Chester, Pennsylvania (the "Wade site"). In its second amended complaint the government named as defendants the owners of the site, the transporters of waste to the site, and the alleged generators of the hazardous waste disposed of at the site prior to February 1978. On September 7, 1982, the district court entered an order dismissing the government's second amended complaint as against the alleged generators, holding that section 7003 of RCRA and section 106(a) of CERCLA could not be used to confer liability on nonnegligent, past off-site generators of hazardous wastes.
2. On November 3, 1982, the government filed a notice of appeal from the district court's order. On December 22, 1982, the appellees filed a motion to dismiss the appeal for want of jurisdiction. Because we hold that the district court's order is not a properly appealable order under 28 U.S.C. § 1292(a)(1) (1976), we will grant appellees' motion to dismiss.
3. On April 20, 1979, the United States filed a complaint in the United States District Court for the Eastern District of Pennsylvania against Melvin R. Wade, Eastern Rubber Reclaiming, Inc., and ABM Disposal Service seeking relief under section 7003 of RCRA, 42 U.S.C. § 6973 (1976 & Supp. V 1981).*fn1 The government sought an order enjoining defendants from storing or disposing any solid or hazardous waste at the Wade site and compelling defendants to formulate and implement a plan for removing the waste currently on that property. On March 14, 1980, the government filed an amended complaint adding as defendants Franklin P. Tyson and Ellis Barnhouse, principals of ABM, and Larry H. Slass, trustee in bankruptcy for ABM. The government again sought injunctive relief under section 7003.
4. On November 10, 1981, the government filed a second amended complaint adding as defendants Apollo Metals, Inc., Congoleum Corp., Gould, Inc., H.K. Porter Co., Inc., Sandvik Steel, Inc., and Superior Tube Co. In its second amended complaint the government alleged that those added companies generated some of the hazardous waste deposited at the Wade site prior to 1978. The government repeated its claim for relief under section 7003 of RCRA and added a claim for relief under section 106(a) of CERCLA.*fn2
5. On February 4, 1982, Gould, Inc., one of the alleged waste generators, filed a motion to dismiss the government's second amended complaint for failure to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6). On September 7, 1982, the district court filed an opinion and order granting the motion to dismiss. United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982). Examining the statutory language and legislative history of section 7003 of RCRA and section 106(a) of CERCLA, the district court concluded that they provided no statutory basis for relief against non-negligent, past off-site generators of hazardous wastes. Id. at 788. Accordingly, the district court entered an order dismissing the complaint as against the alleged generators. The district court's decision did not address the government's claims against the other defendants.*fn3
6. On November 3, 1982, the government filed a notice of appeal from the district court's September 7 order dismissing the government's second amended complaint. On December 22, 1982, the appellees*fn4 filed a motion to dismiss the government's appeal for want of jurisdiction. In its response the government argued that its appeal was properly brought pursuant to 28 U.S.C. § 1292(a)(1) (1976).*fn5 It contended that the district court's order had the practical effect of entirely disposing of the government's prayer for injunctive relief and thus was appealable under section 1292(a)(1) as an interlocutory order refusing an injunction. On January 7, 1983, appellees' motion to dismiss the appeal was referred to the merits panel.
7. Section 1292(a)(1) is an exception to the general principle that only final decisions of the federal district courts are reviewable on appeal. Carson v. American Brands, Inc., 450 U.S. 79, 83, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981); Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 57 L. Ed. 2d 364, 98 S. Ct. 2451 (1978); Kershner v. Mazurkiewicz, 670 F.2d 440, 446-47 (3d Cir. 1982) (in banc); Tokarcik v. Forest Hills School District, 665 F.2d 443, 446 (3d Cir. 1981), cert. denied, 458 U.S. 1121, 102 S. Ct. 3508, 73 L. Ed. 2d 1383 (1982). See generally Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 99 L. Ed. 233, 75 S. Ct. 249 (1955) (discussing history of rule). Under that provision a party has an appeal of right from "interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions." 28 U.S.C. § 1292(a)(1) (1976) (emphasis added). The Supreme Court has cautioned, however, that section 1292(a)(1) must be construed narrowly to conform to the congressional policy against piecemeal appeals. Carson, 450 U.S. at 84; Gardner, 437 U.S. at 480; Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 24, 17 L. Ed. 2d 23, 87 S. Ct. 193 (1966); see United States v. RMI Co., 661 F.2d 279, 281 (3d Cir. 1981). Thus for an interlocutory order to be immediately appealable, a litigant must show more than that the district court's order has the practical effect of refusing an injunction. In addition a party seeking an appeal of right under section 1292(a)(1) must establish that the district court's order might have a "serious, perhaps irreparable consequence," and that the order can be "effectively challenged" only by immediate appeal. Carson, 450 U.S. at 84; Shirey v. Bensalem Township, 663 F.2d 472, 475 (3d Cir. 1981); RMI, 661 F.2d at 281.
8. It is our view that the government has not made a sufficient showing to justify an immediate appeal under 28 U.S.C. § 1292(a)(1) (1976). While the district court's order does preclude the government from obtaining any injunctive relief against appellees, it does not bar the government from obtaining full injunctive relief against the other original defendants.*fn6 Thus the district court's order does not have the serious, perhaps irreparable, consequence of effectively denying the government its requested relief. Plantamura v. Cipolla, 617 F.2d 344, 346-47 (3d Cir. 1980); see Carson, 450 U.S. at 86 & n.11; Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480-81 & n.7, 57 L. Ed. 2d 364, 98 S. Ct. 2451 (1978). Furthermore the government has not shown that the district court's order will result in serious or irreparable consequences at the site itself sufficient to support immediate review. The fact that the government has not sought any preliminary injunctive relief in the five years since institution of this suit is a strong indication that the status quo can continue until the ultimate conclusion of the litigation. Shirey v. Bensalem Township, 663 F.2d at 476; United States v. RMI Co., 661 F.2d at 281-82; see Carson, 450 U.S. at 88-89.*fn7 Finally, on the facts of this case there is "nothing inherent in the district court's order which will escape review if the order is not immediately appealable." RMI, 661 F.2d at 282. Accordingly, we conclude that the government's appeal does not fall within the narrow category of cases immediately appealable under 28 U.S.C. § 1292(a)(1) (1976).
9. Appellees' motion to dismiss the government's appeal for want of appellate jurisdiction will be granted.