City of LA. v. Santa Monica Baykeeper, PETITIONER-APPELLAN

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Trott
• Citation: 254 F.3d 882
• Parties: (9th Cir. 2001) CITY OF LOS ANGELES, HARBOR DIVISION, A MUNICIPAL CORPORATION,KAISER INTERNATIONAL, A CORPORATION, PETITIONER, v. SANTA MONICA BAYKEEPER, A NON- PROFIT CORPORATION; TERRY TAMMINEN, AN INDIVIDUAL,
• Docket Number: PETITIONER-APPELLAN,00-55397,AND,Nos. 00-55396,RESPONDENTS-APPELLEES,s. 00-55396
• Decision Date: 26 June 2001

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254 F.3d 882 (9th Cir. 2001) CITY OF LOS ANGELES, HARBOR DIVISION, A MUNICIPAL CORPORATION, PETITIONER-APPELLANT, AND KAISER INTERNATIONAL, A CORPORATION, PETITIONER,
v.
SANTA MONICA BAYKEEPER, A NON- PROFIT CORPORATION; TERRY TAMMINEN, AN INDIVIDUAL, RESPONDENTS-APPELLEES. Nos. 00-55396, 00-55397 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 5, 2001
Filed June 26, 2001

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William L. Waterhouse (Argued and Briefed), Office of the Los Angeles City Attorney, San Pedro, California, for petitioner-appellant City of Los Angeles, Harbor Division.

Steven A. Broiles (Argued and Briefed), Broiles & Timms, Llp, Los Angeles, California, for petitioner-appellant Kaiser International.

Eric A. Amador (Argued and Briefed), Kimble, MacMichael & Upton, Fresno, California, for the respondents-appellees.

Daniel G. Cooper (Appeared did not argue), Lawyers for Clean Water, San Francisco, California, for the respondents- appellees.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding D.C. No. CV-97-07761-DDP

Before: Stephen S. Trott, A. Wallace Tashima, and William A. Fletcher, Circuit Judges.

Trott, Circuit Judge

Pasadena, California

Opinion by Judge Trott

OPINION OVERVIEW

This appeal concerns the validity of a recission order issued by the district court purporting to withdraw its previous order certifying an interlocutory appeal, and the effect the recission order has on our ability to hear this appeal. We conclude that the recission order was properly issued by the district court, and that we therefore lack jurisdiction to entertain the merits of this appeal.

DISCUSSION

1. Background

This case involves a citizen suit brought by Santa Monica BayKeeper and Terry Tamminen (collectively, "BayKeeper") against Kaiser International Corporation

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("Kaiser") and the City of Los Angeles ("the City") for alleged violations of the Clean Water Act and Clean Air Act. BayKeeper is a not-for- profit public benefit corporation whose stated mission is to survey the environmental health of the Pacific Ocean, its bays and estuaries, and its surrounding watersheds in or near the Los Angeles Basin. In December of 1998, Kaiser and the City filed a motion seeking the dismissal of BayKeeper's suit pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Kaiser and the City argued, inter alia , that BayKeeper's allegations concerning Kaiser's operational violations were moot and that the district court lacked subject matter jurisdiction over the claims of insufficient cleanup because BayKeeper had failed to provide the 60-day pre- litigation notice required in such citizen suits by the Clean Water Act and Clean Air Act.

On October 4, 1999, District Judge William D. Keller issued an order denying in part Kaiser's and the City's motion, concluding that although BayKeeper's claim concerning Kaiser's "active discharges" was moot, BayKeeper's claim involving Kaiser's "passive discharges" was not. Judge Keller held also that BayKeeper had given an adequate 60- day notice of its allegations concerning passive discharges.

Kaiser and the City filed with the district court a request for certification of an interlocutory appeal with respect to Judge Keller's October 4 order, and submitted a proposed order certifying such an appeal. A hearing date was set for November 15, 1999. Prior to this scheduled hearing date, on October 28, 1999, Judge Keller signed and entered the proposed order prepared by Kaiser and the City. Unaware that the order had been entered, BayKeeper timely filed the next day papers opposing Kaiser's certification request.

Having received the requisite certification order from the district court, the City and Kaiser submitted separate petitions with the Ninth Circuit on November 5, 1999 and November 8, 1999, respectively, seeking certification of their proposed interlocutory appeals. On November 10, 1999, Judge Keller reversed course and issued an order explaining that it had considered the motions for certification submitted by Kaiser and the City and that the motions had been denied . On November 18, 1999, Judge Keller issued another minute order denying Kaiser's motion for reconsideration "for the reasons identified by the plaintiffs." This order was particularly puzzling given that no motion for reconsideration had been submitted by any of the parties. Upon realizing the inconsistency between his October 28 and November 10 orders, Judge Keller issued a final order on December 28, 1999, purporting to withdraw the October 28 certification order and denying Kaiser and the City certification to seek an interlocutory appeal. This case was subsequently transferred to District Judge Dean D. Pregerson on January 25, 2000.

Two months later, on February 29, 2000, we approved the petitions for interlocutory appeal submitted by Kaiser and the City, specifying three issues that could be addressed by the parties in their opening briefs:

(1) "[W]hether the 60-day notice and service prerequisites for a citizen suit under the Clean Water Act and Clean Air Act have been met";

(2) "[W]hether any claims not already rejected by the district court are moot"; and

(3) "[W]hether this court can exercise jurisdiction under 28 U.S.C. §§ 1292(b)".

Kaiser filed also a petition for writ of mandamus challenging the district court's

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order denying the motion to dismiss, which we dismissed on February 29, 2000.

2. Jurisdiction

Our initial duty is to determine whether we have jurisdiction to hear this appeal. See United States v. Houser, 804 F.2d 565, 568 (9th Cir. 1986) ("[I]t is the duty of of [sic] this court to dismiss whenever it becomes apparent that we lack jurisdiction." (internal quotations omitted)). To resolve this issue, we must look to 28 U.S.C. §§ 1292(b), which sets forth the procedural requirements for bringing an interlocutory appeal. "Section 1292(b) provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, the district court so certifies, and the court of appeals exercises its discretion to take up the request for review." Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 n.10 (1996) (emphasis added). Thus, a party must obtain certification from both the district court and the court of appeals to bring an interlocutory appeal.

Here, the parties disagree as to whether Kaiser and the City obtained the requisite certification from the district court to bring this interlocutory appeal. BayKeeper maintains that Kaiser and the City did not, arguing that the district court properly withdrew its original certification order by issuing the December 28 recission order. Kaiser and the City counter that they did acquire the necessary certification from the district court because the December 28 recission order exceeded the scope of the district court's authority, thus leaving the original October 28 certification order intact. The viability of this appeal therefore hinges on whether the district court properly rescinded its October 28 certification order. As discussed below, we conclude that it did, and therefore that Kaiser and the City are precluded from bringing this interlocutory appeal.

a. The district court properly rescinded its October 28 certification order.

The general rule regarding the power of a district court to rescind an interlocutory order is as follows:"As long as a district court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981) (emphasis added); see also Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000) (stating that when a district court issues "an interlocutory order, the district court has plenary power over it and this power to reconsider, revise, alter or amend the interlocutory order is not subject to the limitations of Rule 59"); High Country Arts and Craft Guild v. Hartford Fire Ins. Co., 126 F.3d 629, 635 (4th Cir. 1997) (same); Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991) (same).

The implementation of this...