U.S. v. El Dorado County

Jan 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17134. Appeal from the United States District Court for the Eastern District of California. A staff summary of the case indicates that the panel dismissed for lack of jurisdiction, due to lack of a final appealable order, an appeal from the district court's order suspending a consent decree between the Federal government and El Dorado County, pending further hearings. The panel held that if a district court order deals with a consent decree that has injunctive effects, an appeal from it should be analyzed under the requirements set out in Carson v. Am. Brands, Inc., 450 U.S. 79 (1981). The panel held that the Federal government failed to satisfy the Carson factors, and concluded that the court lacked jurisdiction at this time to review the district court's order.

 

    The Appeals Court said, "The United States of America (government) entered into a consent decree with El Dorado County (County) concerning the clean up of an abandoned landfill located near Lake Tahoe in California. The County shortly thereafter moved to modify the decree, and the district court suspended the decree pending further hearings. The government appealed. The County later moved to dismiss for lack of jurisdiction, arguing that the order was not appealable because it is nonfinal. We have jurisdiction to determine our own jurisdiction, Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004), and we dismiss the appeal."

 

    Further, the Appeals Court ruled, "The government has not shown that it will suffer serious, perhaps irreparable harm if we do not review the district court's order now. The government argues that if the order freeing the County from its obligations is allowed to stand even temporarily, further damage to the landfill site is a serious possibility. However, at worst, the government must pay for the clean up activities itself and then be reimbursed. This kind of harm does not qualify. . .

 

    "Nor has the government shown that the order can only be challenged by immediate appeal. Once the district court has held its evidentiary hearing and enters the final judgment, the government can appeal the same legal issues. The government argues that the order can only be appealed now because the project will fail if the County is not required to continue clean up. This is merely a repetition of the government's harm arguments, and fails for the same reason. As stated before, at worst, the government must pay for the clean up itself and then be reimbursed. That situation has no impact on the reviewability of the underlying legal issue. Because the government has failed to satisfy the Carson factors, we do not have jurisdiction at this time. The motion to dismiss is therefore granted."

 

    Access the complete opinion (click here). [#Solid, #Remed, #CA9]

 

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Indian Harbor Insurance Co. v. U.S.

Jan 11: In the U.S. Court of Appeals, Federal Circuit, Case No. 12-5030. Appealed from the United States Court of Federal Claims. The Appeals Court explains that Indian Harbor Insurance Company (Indian Harbor) appeals the final judgment of the Court of Federal Claims dismissing Indian Harbor's Second Amended Complaint. In that complaint, Indian Harbor sought reimbursement under Section 330 of the National Defense Authorization Act of 1993, Pub. L. No. 102-484, (Nov. 30, 1993) (Section 330) for environmental cleanup costs associated with the development of property formerly used as a military base. The Court of Federal Claims determined that Indian Harbor failed to identify a "claim for personal injury or property" that triggered the government's duty to indemnify under Section 330, Indian Harbor Insurance Co. v. United States, 100 Fed. Cl. 239, 240 (Fed. Cl. 2011) and, thus, dismissed the complaint under Rule 12(b)(6) of its rules.

 

    The Appeals Court summarizes saying, "Because we disagree with the trial court's interpretation of the requirements of Section 330, we reverse the decision of the Court of Federal Claims and remand for proceedings in accordance with this decision." In further background the Appeals Court indicates that, "Indian Harbor subsequently filed suit in the Court of Federal Claims seeking $5,331,872.09, plus interest and any additional amounts proven at trial, pursuant to Section 330. The United States moved to dismiss. Following briefing by the parties, oral argument was held on June 20, 2011. On June 28, 2011, the Court of Federal Claims granted Indian Harbor's unopposed motion to file its First Amended Complaint, which clarified Count II of the Complaint. On July 5, 2011, the Court of Federal Claims granted the Defendant's motion in part, dismissing Count I of Indian Harbor's Complaint on grounds that Indian Harbor failed to allege facts plausibly suggesting the existence of a 'claim for personal injury or property damage' as required under Section 330."

    The Appeals Court said, "Although the plain language of Section 330 is clear that there must be a "suit, claim, demand or  action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage," we find no support for the proposition that the claim for personal injury or property damage must be adversarial. . . Thus, we see no reading of the plain language resulting in the conclusion that the RWQCB's [Regional Water Quality Control Board's] communications with TLCP [Tustin Legacy Community Partners, LLC] do not constitute a "claim" under Section 330."

 

    Finally, the Appeals Court concludes, "There is nothing to suggest that addition of the phrase 'claim for personal injury or property damage' was intended to limit the scope of governmental indemnification in a way that ignores the original purpose of the Act. The Court of Federal Claims reads far too much into that clause; we decline to do so."

 

    Access the complete opinion (click here). [#Remed, #CAFed]

 

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