Mall Properties, Inc. v. Marsh, 87-1827

• Citation: 841 F.2d 440
• Decision Date: 11 March 1988
• Docket Number: No. 87-1827,87-1827
• Parties: , 18 Envtl. L. Rep. 20,829 MALL PROPERTIES, INC., Plaintiff, Appellee, v. John O. MARSH, Jr., etc., et al., Defendants, Appellees, City of New Haven, Intervenor-Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 440

841 F.2d 440

27 ERC 1429, 18 Envtl. L. Rep. 20,829

MALL PROPERTIES, INC., Plaintiff, Appellee, v. John O. MARSH, Jr., etc., et al., Defendants, Appellees City of New Haven, Intervenor-Defendant-Appellant.

No. 87-1827.

United States Court of Appeals First Circuit.

Submitted Jan. 21, 1988.

Decided March 11, 1988.

Kathleen P. Dewey, Appellate Section, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., for federal defendants, appellees' motion to dismiss.

Alice Richmond, Hemenway & Barnes, Boston, Mass., Daniel Riesel, and Sive, Paget & Riesel, P.C., New York City, on memoranda in support of motion to dismiss for plaintiff, appellee Mall Properties, Inc.

Neil Proto, Kelley, Drye and Warren, Washington, D.C., Frank B. Cochran, Peter B. Cooper, Cooper, Whitney, Cochran & Francois, New Haven, Conn., Edward F. Lawson, and Weston, Patrick, Willard & Redding, Boston, Mass. on memoranda in opposition to motion to dismiss for intervenor-defendant-appellant City of New Haven.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

PER CURIAM.

The government has filed a motion to dismiss, joined in by appellee Mall Properties, Inc., contending that a district court order, 672 F.Supp. 561, remanding to the Corps of Engineers for further proceedings is not a final appealable order and hence the present appeal should be dismissed. Appellant City of New Haven opposes the motion to dismiss. We reject the City's argument that the motion to dismiss was untimely. Jurisdictional defects are noticeable at any time. We turn, then, to the background.

Plaintiff Mall Properties, Inc., applied to the Corps of Engineers for permits to fill wetlands so that plaintiff might build a 1.1 million square foot, two story shopping mall in North Haven, Connecticut. The Corps denied the permit. Among the factors the Corps considered in concluding the project was contrary to the public interest was, first, the City of New Haven's opposition to the mall on the ground that a North Haven mall would adversely impact New Haven's economic development and, second, the Governor of Connecticut's statement at a July 1985 meeting that building the North Haven Mall was not worth the risk to New Haven. The district court ¹ concluded that the Corps had exceeded its authority (1) by basing the permit denial on socio-economic harms not proximately related to changes in the physical environment and (2) by not following its regulations which required that Mall Properties be provided notice of an opportunity to rebut the objection made by the Governor of Connecticut. Accordingly, the court remanded the case to the Corps for further proceedings consistent with its opinion. The question, then, is whether this remand order is now appealable.

New Haven argues that the district court entirely disposed of the matter before it--Mall Properties' petition for review--and granted Mall Properties the relief requested--a remand to the Corps. Hence, New Haven contends, the judgment is a final one. We disagree. Ultimately, Mall Properties wants the proper permits themselves and, in the event of a judicial challenge to the permit, a judgment adjudicating Mall's entitlement to the permits. Indeed, originally Mall's complaint asked the court to direct the Corps to issue Mall the permits (though Mall subsequently acknowledged that a remand would be the proper remedy were it to prevail). Thus, the district court's remand order does not grant Mall ultimately what Mall wants. Rather, the court's order is but one interim step in the process towards Mall's obtaining its ultimate goal. Consequently, we do not view the remand order as meeting the traditional definition of a final judgment, that is, one which "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). The litigation has not ended. It simply has gone to another forum and may well return again. Cf. In re Abdallah, 778 F.2d 75 (1st Cir.1985) (district court order remanding case to bankruptcy court for further proceedings not final appealable order), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 657 (1986); Giordano v. Roudebush, 565 F.2d 1015 (8th Cir.1977) (district court order ruling that plaintiff was not entitled to a full trial type procedure but remanding to agency for further consideration of plaintiff's arguments neither granted nor denied the ultimate relief plaintiff wanted--reinstatement and back pay--and was not a final appealable order); Transportation-Communication Division v. St. Louis-San Francisco Ry. Co., 419 F.2d 933, 935 (8th Cir.) (district court order which neither enforced nor denied enforcement of Board's award, but rather decided some issues and remanded for further proceedings, made no final determination of the entire merits of the controversy and is not appealable), cert. denied, 400 U.S. 818, 91 S.Ct. 34, 27 L.Ed.2d 45 (1970). The order is not final in the usual sense.

This court and others have said that generally orders remanding to an administrative agency are not final, immediately appealable orders. See, e.g., Pauls v. Secretary of Air Force, 457 F.2d 294, 297-298 (1st Cir.1972) (order remanding to Air Force Board for the Correction of Military Records directing discovery and detailed fact findings not appealable); ² Memorial Hospital System v. Heckler, 769 F.2d 1043 (5th Cir.1985) (hospital appeal from order remanding for further proceedings relating to Medicare reimbursement dismissed); Howell v. Schweiker, 699 F.2d 524 (11th Cir.1983) (claimant may not appeal from order remanding to Secretary for further proceedings); Eluska v. Andrus, 587 F.2d 996, 999-1001 (9th Cir.1978) (order remanding to Board of Land Appeals so that plaintiff may exhaust administrative remedies not appealable even though once such remedies are exhausted it may not be possible to review exhaustion order). See also 15 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure Secs. 3914 at pp. 551-553 (1976).

Exceptions have been recognized in some cases, however, and appeals have been allowed from orders remanding to an administrative agency for further proceedings. See, e.g., United States v. Alcon Laboratories, 636 F.2d 876, 884-885 (1st Cir.) (remand order putting in issue order in which agency enforcement action should proceed appealable under Cohen collateral order doctrine), cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1981); Gueory v. Hampton, 510 F.2d 1222 (D.C.Cir.1975) (Chairman's appeal from order remanding to Civil Service Commission allowed); Paluso v. Mathews, 573 F.2d 4 (10th Cir.1978) (Secretary's appeal from order remanding for further proceedings with respect to coal miner's application for benefits); Citizens to Preserve Overton Park v. Brinegar, 494 F.2d 1212 (6th Cir.1974) (no discussion of appealability), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975).

Trying to make order out of the case law, the City of New Haven argues that whereas remands for factual development may not be appealable orders, under a practical conception of finality, district court orders which determine an important legal issue, announce a new standard, and impose a new legal standard or procedural requirement upon the agency in the remand proceeding should be considered final and immediately appealable. Indeed, citing a number of cases, the City argues that that is in fact the distinction the case law has drawn.

In particular New Haven relies heavily on Bender v. Clark, 744 F.2d 1424 (10th Cir.1984). There, a crucial issue was whether a particular tract of land contained a known geologic structure (KGS). If it did, petitioner's noncompetitive oil and gas lease offer for the land would have to be rejected and the land could only be leased by competitive bidding. The Interior Board of Land Appeals determined that the government had made a prima facie case of the existence of a KGS and that petitioner had failed to show by "clear and definite evidence" that the government had erred. Petitioner sought judicial review. The district court concluded the Board had imposed too high a standard of proof on petitioner. Rather than "clear and definite" evidence, petitioner need only prove government error by a preponderance of the evidence. Consequently, the district court remanded to the Board for further proceedings applying the correct burden of proof. The government appealed. In determining whether the remand order was immediately appealable, the Tenth Circuit stated that "[t]he critical inquiry is whether the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review." Id. at 1427. The court decided the matter in favor of immediate appeal stating two reasons. First was the fact that the standard of proof issue was a serious and unsettled one. But second, "and perhaps most important," the court said, was that the...