Building Industry Ass'n of Superior California v. Babbitt
| Decision Date | 24 November 1998 |
| Docket Number | No. 97-5255,97-5255 |
| Citation | 161 F.3d 740 |
| Parties | , 29 Envtl. L. Rep. 20,328 BUILDING INDUSTRY ASSOCIATION OF SUPERIOR CALIFORNIA, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees. Environmental Defense Center, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Lawrence R. Liebesman argued the cause for appellants. With him on the briefs was Rafe Petersen. Duane J. Desiderio entered an appearance.
Elizabeth Ann Peterson, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Lois J. Schiffer, Assistant Attorney General, and David C. Shilton, Attorney. Robert L. Klarquist, Attorney, entered an appearance.
Neil Levine argued the cause for intervenors Environmental Defense Center and Butte Environmental Council. With him on the brief was Anne Spielberg.
James B. Dougherty was on the brief for amicus curiae National Wildlife Federation.
Robin L. Rivett and Anne M. Hayes were on the brief for amici curiae Pacific Legal Foundation, et al.
Before: EDWARDS, Chief Judge, WALD and SENTELLE, Circuit Judges.
Appellants, Building Industry Association of Superior California, et al. (collectively "BIA") appeal from a judgment of the United States District Court for the District of Columbia upholding a decision of the United States Fish and Wildlife Service ("FWS") to list as endangered or threatened under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. ("ESA"), four different species of "fairy shrimp." The district court certified the listing claim under Rule 54(b) of the Federal Rules of Civil Procedure, but provided no reason for its certification. While in some applications Rule 54(b) requires merely entry of a final order and an "express determination" that there is no just reason for delay, we hold that, in cases such as this where it is not evident that certification is appropriate, further explanation by the district court may be necessary. Having concluded that the district court's certification is inadequate under this standard of review, we dismiss the appeal as outside our jurisdiction.
Under Section 4(a) of the ESA, the Secretary of the Department of the Interior determines whether to list a species as "endangered" or "threatened." 16 U.S.C. § 1533(a). An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). "To the maximum extent practicable," within 90 days after receiving a petition of an interested person to list a species, the Secretary is charged with making a finding concerning whether listing is warranted. 16 U.S.C. § 1533(b)(3)(A). If the listing may be warranted, the Secretary must make a determination either that the petitioned action is not warranted, warranted, or warranted but precluded within 12 months of receiving the petition. 16 U.S.C. § 1533(b)(3)(B). The Secretary determines whether a given species is an "endangered species" under a number of statutorily specified factors found in 16 U.S.C. § 1533(a)(1), "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A).
The ESA states that at the same time the Secretary is making this listing decision, the Secretary must, "to the maximum extent prudent and determinable," designate a "critical habitat" for the listed species. 16 U.S.C. § 1533(a)(3). Nevertheless, there are circumstances under which a critical habitat designation need not be made concurrently with the listing decision. Where such designation is not prudent or critical habitat is not determinable, FWS regulations require that "the reasons for not designating critical habitat ... be stated in the publication of proposed and final rules listing a species." 50 C.F.R. § 424.12(a).
Fairy shrimp are tiny crustaceans found in California's Central Valley region. They inhabit vernal pools-seasonally wet, isolated water bodies. On May 8, 1992, FWS published a rule proposing to list five species of fairy shrimp as endangered pursuant to Section 4 of the Endangered Species Act and solicited public comment. 57 Fed.Reg. 19,856-862. After receiving comments from the public on the proposed listing, on September 19, 1994, FWS published its final rule listing three of the five species of fairy shrimp as "endangered" and one of the five species as "threatened." 59 Fed.Reg. 48,136-153. However, FWS did not designate a critical habitat for the fairy shrimp species it had listed, concluding that "the publication of precise maps and descriptions of critical habitat in the Federal Register would make these species more vulnerable to incidents of vandalism." Id. at 48,151.
BIA brought suit in the district court, challenging both FWS's final listing decision and its failure to designate a critical habitat. On July 25, 1997, the district court ruled on motions for summary judgment, upholding FWS's decision to list the fairy shrimp and remanding to FWS for the limited purpose of clarifying or reconsidering its decision to forego designating a critical habitat. Building Indus. Ass'n of Superior California v. Babbitt, 979 F.Supp. 893, 906 (D.D.C.1997). FWS filed an additional report on September 26, 1997, providing additional support from the administrative record and articulating additional factual and legal bases for its decision not to designate a critical habitat. On October 13, 1997, the Environmental Defense Center filed a response, criticizing the FWS finding as insufficiently supported in the record. On October 27, 1997, FWS filed a response to BIA's motion, defending its decision not to designate critical habitat. Pursuant to Rule 54(b), on January 6, 1998, the district court certified for appellate review those issues relating to FWS's decision to list the fairy shrimp.
United States circuit courts are courts of limited jurisdiction. See generally U.S. Const. Art. III, §§ 1, 3. We do not have appellate jurisdiction over every decision of a district court, but only "final decisions," subject to some exceptions for appealable interlocutory decisions not applicable here. 28 U.S.C. §§ 1290, 1291. The determination of what constitutes a final decision is not normally a difficult one. Generally, a court may assume that for a judgment to be appealable it must be final " 'as to all the parties, [and] as to the whole subject-matter and as to all the causes of action involved.' " Andrews v. United States, 373 U.S. 334, 340, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963) (quoting Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347, 64 L.Ed. 616 (1920)). However, such an absolute rule of total finality poorly serves the real world of complex litigation. Our rules of civil procedure accommodate reality in Rule 54(b), which provides that in the case of litigation involving joined claims or parties, "the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties...." However, the court may do so "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Our jurisdiction over the present controversy arises under that provision, if we have jurisdiction at all.
Therefore, before we approach the merits of appellants' claim, we must first determine whether the order of the district court allowing the partial summary judgment as to the listing claim is final and appealable under Rule 54(b). The question is jurisdictional. Haynesworth v. Miller, 820 F.2d 1245, 1253 (D.C.Cir.1987). If we have no jurisdiction over a cause purportedly before us, then it is our duty to dismiss the cause. Id. Having considered the question in this case, and examined the briefs and the supporting record, we conclude that we do not have jurisdiction and therefore must dismiss this appeal.
Determination of the exceptional cases qualifying for Rule 54(b) certification is initially the province of the district court, which "function[s] as a 'dispatcher,' " deciding which less-than-totally final dispositions meet the standard for finality set forth in the Rule and therefore qualify for certification. The Supreme Court has long recognized that the placement of this decision in the discretion of the district court is a wise one, as that court is "the one most likely to be familiar with the case and with any justifiable reasons for delay." Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). Therefore, the law affords considerable discretion to the district courts in making the certification decision under Rule 54(b). However, "with equally good reason, any abuse of that discretion remains reviewable by the Court of Appeals." Id.
In Sears, the Supreme Court offered initial guidance for our review of the district court's exercise of that discretion. Under Sears, we should consider as legitimate grounds for the dismissal of such an appeal as outside our jurisdiction any of the following:
(1) that the judgment of the District Court was not a decision upon a "claim for relief,"
(2) that the decision was not a "final decision" in the sense of an ultimate disposition of an individual claim entered in the course of a multiple claims action, or
(3) that the District Court abused its discretion in certifying the order.
Id. at 436, 76 S.Ct. 895. The first two of these grounds appear to be questions of law, which presumably we would review for error on the record, making a de novo decision as to the question of law. Cf. ...
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