U.S. v. Accra Pac, Inc., 98-3331

• Citation: 173 F.3d 630,1999 WL 222944
• Decision Date: 16 April 1999
• Docket Number: No. 98-3331,98-3331
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ACCRA PAC, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 630

173 F.3d 630

UNITED STATES of America, Plaintiff-Appellee, v. ACCRA PAC, INC., Defendant-Appellant.

No. 98-3331.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1999.

Decided April 16, 1999.

Andrew B. Baker, Jr., Office of the United States Attorney, Dyer, IN, Sherry Estes, Environmental Protection Agency, Region 5, Office of Regional Counsel, Chicago, IL, Todd Kim (argued), Department of Justice, Land & Natural Resources Division, Washington, DC, for Plaintiff-Appellee.

Richard S. VanRheenen (argued), VanRheenen & Associates, Indianapolis, IN, for Defendant-Appellant.

Before POSNER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Accra Pac abandoned an aerosol-can facility following an explosion and fire. The United States filed suit demanding that Accra Pac remove hazardous wastes from the site. The parties settled; Accra Pac did not concede liability but promised to cleanse the site under a plan agreeable to the Environmental Protection Agency. In 1997 the EPA ratified Accra Pac's proposal. Dissatisfied with mere approval, Accra Pac asked the district judge who is supervising compliance with the consent decree to take a blue pencil to the EPA's decision. Stripped of its details, Accra Pac's objection is that the EPA used the occasion to trumpet that it had been right all along, and that Accra Pac's data (and proposed cleanup plan) confirmed the need for action. Accra Pac asked the judge to require the EPA to be more neutral, reflecting the fact that the case was settled without an adjudication of liability. But the judge decided that the EPA's characterizations have some factual support and refused to require any change.

Before oral argument, we called for supplemental memoranda to address two issues that the parties' briefs slighted: whether there is appellate jurisdiction and, if so, whether the district court itself had jurisdiction. Appellate jurisdiction is problematic because its only potential source is 28 U.S.C. § 1291, which authorizes appeal from a "final decision." One of many orders interpreting or implementing a consent decree cannot readily be called "final", and we have held accordingly that housekeeping orders in long-running cases are not appealable. E.g., Bogard v. Wright, 159 F.3d 1060 (7th Cir.1998); Association of Community Organizations for Reform Now v. Illinois State Board of Elections, 75 F.3d 304 (7th Cir.1996). But regulatory proceedings under consent decrees, like bankruptcies and post-judgment collection proceedings in regular civil cases, can encompass many other disputes that otherwise would be independent pieces of litigation. When that occurs, we ask whether a particular order would be appealable if it had been entered in a stand-alone case. RTC v. Ruggiero, 994 F.2d 1221 (7th Cir.1993); King v. Ionization International, Inc., 825 F.2d 1180 (7th Cir.1987); In re Morse Electric Co., 805 F.2d 262 (7th Cir.1986). The current dispute between Accra Pac and the EPA could have been a stand-alone suit under the Administrative Procedure Act, seeking review of the EPA's order approving the cleanup plan; the ruling now on appeal would have been the terminal order in such a suit. So it is appealable--but this theory of appellate jurisdiction has other implications, for a stand-alone suit would not have come within the district court's jurisdiction.

Suppose Accra Pac had filed suit under the APA seeking review of the EPA's order. The district court would have dismissed that suit without reaching the merits, because Accra Pac could not have established the first requirement: that it be "adversely affected or aggrieved" by the administrative decision. 5 U.S.C. § 702. Unwelcome language in a substantively favorable decision is not the kind of adverse effect that meets the requirement of actual injury. CH2M Hill Central, Inc. v. Herman, 131 F.3d 1244 (7th Cir.1997); Board of Trade of City of Chicago v. SEC, 883 F.2d 525 (7th Cir.1989). Likewise a litigant may not appeal from unfavorable statements in a judicial opinion, if the judgment was favorable. California v. Rooney, 483 U.S. 307, 311-14, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987); Grinnell Mutual Reinsurance Co. v. Reinke, 43 F.3d 1152 (7th Cir.1995); Abbs v. Sullivan, 963 F.2d 918 (7th Cir.1992); Bolte v. Home Insurance Co., 744 F.2d 572 (7th Cir.1984). A court of appeals reviews judgments, not opinions. Someone who seeks an alteration in the language of the opinion but not the judgment may not appeal; likewise if the document is an administrative decision rather than a judicial one.

Reluctance to review language divorced from results has a sound footing in the statutory requirement of an adverse effect--not to mention the constitutional requirement of a "case or controversy"--and has practical support too. Few victors in litigation or the administrative process are thrilled with the opinion; almost everyone perceives that different language could have produced benefits--perhaps ammunition for some future dispute (a particular concern of institutional litigants and those involved in long-running disputes), perhaps psychic gratification. It is work enough to resolve claims made by losers; review of claims made by winners could double the caseload, and to what end? Judicial time devoted to what may be a litigant's will-o'-the-wisp is time unavailable to resolve other, more concrete, disputes. No wonder appellate courts do not issue Writs of Erasure to change language in district judges' opinions, when the judgments are uncontested. When the speaker is part of the Executive Branch, there is even less justification for altering the language used to explain a decision. The President and his aides are entitled to express their views in their own words,...