U.S. v. M.C.C. of Florida, Inc.

• Decision Date: 11 August 1992
• Docket Number: No. 91-5358,91-5358
• Citation: 967 F.2d 1559
• Parties: , 23 Envtl. L. Rep. 20,459 UNITED STATES of America, Plaintiff-Appellee, State of Florida Department of Environmental Regulation, Plaintiff-Intervenor, Appellee, v. M.C.C. OF FLORIDA, INC., and Michael's Construction Co., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1559

967 F.2d 1559

35 ERC 1870, 23 Envtl. L. Rep. 20,459

UNITED STATES of America, Plaintiff-Appellee State of Florida Department of Environmental Regulation Plaintiff-Intervenor, Appellee, v. M.C.C. OF FLORIDA, INC., and Michael's Construction Co. Defendants-Appellants.

No. 91-5358.

United States Court of Appeals Eleventh Circuit.

Aug. 11, 1992.

Thomas A. Harris, Chattanooga, Tenn., for defendants-appellants.

Susan Hill Ponzoli, Asst. U.S. Atty., Miami, Fla., Jack Chisolm, Florida Dept. of Environmental Regulation, Tallahassee, Fla., Linda Collins-Hertz, Asst. U.S. Atty., Miami, Fla., William A. Baxter, Atty., U.S. Army Corps of Engineers, (Sp. Asst. to U.S. Atty., S.D.Fla.), Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

The facts pertinent to this appeal are set out generally at United States v. M.C.C. of Florida, Inc., 772 F.2d 1501 (11th Cir.1985) (M.C.C. I ). We refer here only to the events which essentially bear on the issues now before us.

This controversy arises out of a civil action brought by the United States of America and the Florida Department of Environmental Regulation for injunctive relief to prohibit dredging activities by M.C.C. of Florida, Inc. and Michael Construction Company (hereafter collectively referred to as M.C.C.) for restoration of the areas dredged by M.C.C. and for civil penalties. The case was tried without a jury over the objection of M.C.C. The district court found that M.C.C. had violated the Rivers and Harbors Act, 33 U.S.C. § 403, et seq., the Clean Water Act, 33 U.S.C. § 1251, et seq., and various state statutes. The court ordered M.C.C. to pay a $20,000 civil penalty under the Clean Water Act and a $200,000 equitable judgment under the Rivers and Harbors Act for use in restoration projects. United States v. M.C.C. of Florida, Inc., 81-2373-CIV (S.D.Fla. March 12, 1984).

On appeal to this court, M.C.C. argued that it had a right to a jury trial, and that its conduct was not prohibited by the Rivers and Harbors Act or by the Clean Water Act. This court held that M.C.C. had no right to a jury trial, that its conduct violated federal law, and that, while an equitable remedy such as that ordered by the district court was appropriate, M.C.C. should have been required to prepare and submit for court approval a proposed environmental plan for implementation of the remedy. M.C.C. I, 772 F.2d at 1504-07.

M.C.C. then petitioned the United States Supreme Court for a writ of certiorari. The writ was granted and the Supreme Court issued a mandate vacating this court's judgment in M.C.C. I, directing this court to reconsider its opinion in light of Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987). M.C.C. of Florida, Inc. v. United States, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 809 (1987). In Tull, the Supreme Court held that a defendant is entitled to a jury trial for the determination of its liability for civil penalties under the Clean Water Act. On remand, this court interpreted the Supreme Court's mandate to affect only that part of the M.C.C. I opinion entitled "Jury Trial," and found the remaining portions of the prior opinion to be the "law of the case." United States v. M.C.C. of Florida, Inc., 848 F.2d 1133, 1134 (11th Cir.1988) (M.C.C. II ). The panel thus remanded to the district court for a jury trial on the issue of liability only and stated: "If the jury returns a verdict for the United States, the district court will be guided by that part of our opinion captioned 'Remedy.' " Id.

M.C.C. petitioned for rehearing, contending that this court had misinterpreted the Tull decision and that M.C.C. was entitled to a retrial on all issues presented by the case. In an opinion denying M.C.C.'s petition, the panel held that M.C.C. was not entitled to retrial on all issues, and further noted that no jury trial would be necessary if the Government were to abandon its claim for civil penalties and simply accept the equitable restitution of $200,000. United States v. M.C.C. of Florida, Inc., 863 F.2d 802, 803-04 (11th Cir.1989) (M.C.C. III ).

Following remand to the district court, the Government waived its claim for civil penalties. The district court approved the waiver and entered an order dismissing the Government's claim for civil penalties, and requiring M.C.C. to prepare and submit an environmental plan for implementation of the remedy. United States v. M.C.C. of Florida, Inc., 81-2373-CIV (S.D.Fla. Feb. 12, 1991). This appeal followed.

M.C.C. argues on this appeal that the Supreme Court's order vacating M.C.C. I set aside all prior proceedings and entitled M.C.C. to a retrial on all issues. We disagree.

The order of the Supreme Court stated as follows:

Certiorari granted, judgment vacated, and case remanded for further consideration in light of Tull v. United States, [481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) ].

M.C.C. of Florida, Inc. v. United States, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 809 (1987).

M.C.C. is correct in asserting that a general vacation by an appellate court of the lower court's judgment vacates the entire judgment below, divesting the lower court's earlier judgment of its binding effect. Johnson v. Board of Educ., 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982); Dorsey v. Continental Casualty Co., 730 F.2d 675 (11th Cir.1984). A vacation which merely requires further consideration in light of a new Supreme Court decision, however, is of a much more limited nature. The effect of a vacation such as the one at issue was not to nullify all prior proceedings. On the contrary, it merely required the court to reconsider its opinion in M.C.C. I in light of the law set forth in Tull. The Supreme Court did not take a position on whether Tull actually affected the outcome of M.C.C. I, but was instructing this court to make that determination. Thus, although the panel was not bound by its prior decision, it was free to adopt any or all of M.C.C. I that, upon reconsideration, it determined to be unaffected by Tull. See, e.g., Jones v. American Broadcasting Co., 961 F.2d 1546 (11th Cir.1992). Cf. Moore v. Zant, 885 F.2d 1497, 1502-03 (11th Cir.1989) (plurality opinion of en banc court) (consideration of issues beyond Supreme Court's specific mandate is "permitted by" the remand order), cert. denied, --- U.S. ----, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990).

This is precisely what the court did in M.C.C. II and III. After concluding that the jury trial right recognized in Tull applied only to the issue of liability for civil penalties under the Clean Water Act, the court reaffirmed the rest of the district court's opinion, and issued directions to the district court for its treatment of the remedy issue:

We interpret the Supreme Court's remand to affect only that portion of our prior opinion captioned "Jury Trial," 772 F.2d at 1506-07. Thus, the remaining portions of our opinion are the law of the case. We remand to the district court for a jury trial on the issue of liability. If the jury returns a verdict for the United States, the district court will be guided by that part of our opinion captioned "Remedy," 772 F.2d at 1507-08.

M.C.C. II, 848 F.2d at 1134.

Upon M.C.C.'s petition for rehearing, the court further noted that

on remand the...