UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: July 13, 1983.
HOVSONS, INC., A NEW JERSEY CORPORATION, THE COALITION TO SAVE AGRICULTURE, A NEW JERSEY CORPORATION, THE COALITION FOR THE SENSIBLE PRESERVATION OF THE PINELANDS, AN UNINCORPORATED ASSOCIATION, FOLSOM TOWNSHIP, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, WOODLAND TOWNSHIP, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS AND MARVIN F. MATLACK AND SHIRLEY ANN MATLACK, PINELAND LANDOWNERS, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, PAMELA AND DESIREE, PINELAND LANDOWNERS DEFENSE FUND, INC., A NEW JERSEY CORPORATION, BOARD OF EDUCATION OF WASHINGTON TOWNSHIP, A CORPORATE ENTITY UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND BOARD OF EDUCATION OF WOODLAND TOWNSHIP, A CORPORATE ENTITY UNDER THE LAWS OF THE STATE OF NEW JERSEY, TOWNSHIP OF LACEY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND LAKE LENAPE LAND CO., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS-INTERVENORS, APPELLANTS
THE SECRETARY OF THE INTERIOR OF THE UNITED STATES OF AMERICA, DEFENDANT AND STATE OF NEW JERSEY, THE PINE BARRENS COALITION, THE NEW JERSEY AUDUBON SOCIETY; THE ENVIRONMENTAL DEFENSE FUND, INC., THE NATURAL RESOURCES DEFENSE COUNCIL, INC., FRIENDS OF THE EARTH, THE SIERRA CLUB, THE NATIONAL PARKS AND CONSERVATION ASSOCIATION, THE AMERICAN RIVERS CONSERVATION COUNCIL, AND THE NATIONAL WILDLIFE FEDERATION, DEFENDANT-INTERVENORS, APPELLEES
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Garth and A. Leon Higginbotham, Jr., Circuit Judges, and Fullam, District Judge.*fn* Garth, Circuit Judge, concurring and dissenting.
Opinion OF THE COURT
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
I. PROCEEDINGS BELOW
This is a suit by a number of plaintiffs who allege that they are aggrieved by actions of the State of New Jersey and the Secretary of the Interior of the United States, and who together have approved and adopted New Jersey's "Comprehensive Management Plan" (CMP) for the Pinelands area of New Jersey. The Pinelands National Reserve was created by Congress in the National Parks and Recreations Act of 1978, ("the Act"), 16 U.S.C. § 471i (Supp. 1982),
(1) to protect, preserve and enhance the significant values of the land and water resources of the Pinelands area;
(2) to encourage and assist the State of New Jersey and its units of local government in the development of a comprehensive management plan for the Pinelands area in order to assure orderly public and private development in the area. . . .
(3) to provide, during the development of this comprehensive plan, Federal financial assistance for the acquisition of lands in the Pinelands area that have critical ecological values which are in immediate danger of being adversely affected or destroyed. . . .
Pub. L. 95-625, Title V, § 502, Nov. 10, 1978, 92 Stat. 3492, 16 U.S.C. § 471i(b).
Each of the plaintiffs is an owner or user of property in the Pinelands, or in the case of each of the plaintiff municipalities, an agency which taxes Pinelands property. New Jersey's CMP undeniably restricts most development in the Pinelands and restricts a great deal of land in the Pinelands to specified, fairly narrow uses. The plaintiffs allege that they have been harmed by those restrictions and have sought to invalidate them. Some of the plaintiffs have challenged the effects of the CMP in various other administrative and judicial proceedings in New Jersey.
This action challenges the preparation, approval and effects of the CMP and alleges various deficiencies in the environmental impact statement (EIS) upon which it is based. The importance of the EIS is that the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (NEPA), requires a legally sufficient EIS before federal funds may be disbursed pursuant to "any major Federal action funded under a program of grants to States." 42 U.S.C. § 4332(2)(D). The federal Pinelands Act provides for federal funding to assist New Jersey's implementation of its CMP. 16 U.S.C. § 47li(k).
Count I of the complaint charges various violations of NEPA, specifically, that the EIS upon which the Secretary based his approval of the CMP was deficient under 42 U.S.C. § 4332(2)(C). The EIS was allegedly deficient because it was based on a preliminary draft of the CMP; because it did not adequately describe and analyze the social and economic impact of the CMP; because it did not set forth in sufficient detail the data, methodology, and standards on which it was based; and because it failed adequately to address alternatives to the CMP. The plaintiffs seek preliminarily and permanently to enjoin the Secretary from approving the CMP (and hence from authorizing the expenditure of federal funds for the Pinelands under 16 U.S.C. § 47i(k)) until a legally sufficient EIS is prepared.
Count II of the complaint alleges that the Secretary failed to adequately consider various factors set forth by Congress in the federal Pinelands Act that must be considered before federal funding can be approved. Those factors include the following: whether the CMP provides for the greatest possible use of police power; whether the state allowed sufficient public participation in the preparation of the CMP; whether the CMP would be implemented promptly; and whether the CMP adequately provides for federal representation, for protection of the Pinelands National Reserve, for the national defense mission, and for continuing state oversight. Count II includes a prayer for preliminary and permanent injunctive relief to prevent the Secretary from approving and funding the CMP until the Secretary has complied with 16 U.S.C. § 471i(g)(2).
Count III alleges that the CMP constitutes a taking of the plaintiffs' property for public use without just compensation, in violation of the United States Constitution and state and federal law. The plaintiffs seek an injunction requiring the Secretary and the state to pay for any such property wrongfully taken, and to withhold approval and implementation of the CMP until the unconstitutional takings have ceased.
The district court denied all preliminary injunctive relief and thereafter, by order dated July 14, 1981, granted partial summary judgment on the merits in favor of the defendants on Counts I and II. Hovsons, Inc. v. Secretary of the Interior, 519 F. Supp. 434 (D.N.J. 1981). In the same order, the district court abstained from decision on Count III in reliance on Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), and stayed proceedings on the claim pending resolution of state administrative and judicial proceedings. The court specifically retained jurisdiction over Count III.
The plaintiffs have appealed to this court challenging the entry of summary judgment on Counts I and II, seeking a remand for trial on those claims, and seeking to overturn the district court's decision to abstain on Count III. We affirm.
Before reaching the merits, we must determine two preliminary issues. The first is whether this court has jurisdiction of the appeal, and the second is whether counsel for one of the appellants should be disqualified.
When this appeal was argued there was a substantial question as to whether the appeal was from a judgment which was "final" for purposes of 28 U.S.C. § 1291. Only two of the three counts in plaintiffs' Complaint were encompassed within the grant of partial summary judgment. The district court had stayed the remaining count in the exercise of a P ullman -type abstention, and there was authority in this circuit to the effect that such orders are not final and appealable under 28 U.S.C. § 1291. See Brace v. O'Neill, 567 F.2d 237 (3d Cir. 1977); Cotler v. Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537 (3d Cir. 1975); Arny v. Philadelphia Transport Company, 266 F.2d 869 (3d Cir. 1959). Since it appeared probable that the Supreme Court would shortly render a definitive decision on the appealability, under 28 U.S.C. § 1291, of Pullman -type abstentions and stay orders (the court having recently granted certiorari to consider the question), decision of this appeal was deferred.
On February 23, 1983, the Supreme Court decided Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765, 51 U.S.L.W. 4156 (1983), holding that when a district court enters a stay of proceedings for the purpose of requiring the case to be litigated in a state forum, such orders are final and appealable under 28 U.S.C. § 1291.*fn1 It is therefore now clear that we have jurisdiction over this appeal.
B. Motion to Disqualify Counsel
After this appeal was filed, the Secretary of the Interior moved to disqualify appellants' counsel. The Secretary alleges that appellants' counsel, Robert V. Paschon, is currently representing conflicting interests. Mr. Paschon is the senior partner in the firm of Paschon, Feurey and Kotzas of Toms River, New Jersey, in which capacity he represents the appellants. He is also Staff Judge Advocate on the staff of the Commander of the New Jersey Air National Guard in which capacity he serves part time as a legal advisor to the New Jersey Air National Guard. The Secretary's motion alleges that "Mr. Paschon's official legal duties [as Staff Judge Advocate] have included participation in meetings and discussions as a representative of the New Jersey Air National Guard regarding various Pinelands Plan issues . . . . [and that] Mr. Paschon, acting in his official capacity, has participated in meetings with the Pinelands Commission and its staff regarding the formulation of the [Comprehensive Management] Plan and its impact upon the defense mission." Mr. Paschon has denied that he participated in any meetings concerning the impact of the CMP on the defense mission of the United States, and categorically denies that he has represented any conflicting interests.
The relevance of the "defense mission of the United States" to this case is that 16 U.S.C. § 47li(g)(2)(G) requires the Secretary of the Interior to consider whether "the national defense mission of the military installations within, contiguous or adjacent to the Pinelands National Reserve has been adequately provided for" before approving federal funding for the CMP. Of course, the national defense mission is only one of a great many factors the Secretary was obliged to consider before approving the CMP,*fn2 but it was also a factor that the plaintiffs alleged the Secretary did not consider. In small part they seek to invalidate the Secretary's approval of the CMP for that reason. The appellees object to Mr. Paschon's allegedly evaluating the defense mission for the United States as a Staff Judge Advocate and thereafter suing the United States for its failure adequately to evaluate the defense mission.
The Secretary alleges*fn3 that Mr. Paschon's conduct violates Disciplinary Rule 9-101(B) of the American Bar Association Code of Professional Responsibility, which provides:
A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.
Disciplinary Rule 9-101(B) complements, and indeed reinforces, DR 5-105(B) of the Code, which provides in pertinent part:
A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests . . . .
We assume, for purposes of argument only,*fn4 that Mr. Paschon has violated both DR 9-101(B) and DR 5-105(B). Nevertheless, we do not believe disqualification is appropriate, even assuming that the Code has been violated.
We observed in United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980):
Although disqualification ordinarily is the result of a finding that a disciplinary rule prohibits an attorney's appearance in a case, disqualification never is automatic. See Church of Scientology v. McLean, 615 F.2d 691, 693 (5th Cir. 1980); Central Milk Producer's Coop. v. Sentry Food Stores, Inc., 573 F.2d 988, 991 (8th Cir. 1978); International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1293 (2d Cir. 1975). We have noted that the district court 'has a wide discretion in framing its sanctions to be just and fair to all parties involved. ' IBM v. Levin, 579 F.2d 271, 279 (3d Cir. 1978).
This case is a rare but good example of when disqualification would neither be just nor fair to the parties involved.
Initially, we note that the Secretary is lukewarm, at best, about pressing his motion. At oral argument counsel for the Secretary, while not waiving the motion, retreated from it somewhat:
I don't want to delay resolution of this appeal, we do feel it's an important matter. . . . I certainly feel strongly that Mr. Paschon should not be participating, but since he is here and since everyone's here and since the court has the briefs and has the issues I'm very reluctant to object, and I won't object, to Mr. Paschon participating today. I would only point out that if Mr. Paschon decides to go into the specific issue of the impact upon the military mission in the Pinelands, that that might well compound the mischief and the conflict we've attempted to point out to the court in our motion.
Second, we share the district court's concern about "the questionable nature of plaintiffs' standing" to raise objection to the Secretary of the Interior's consideration of the national defense mission. 519 F. Supp. at 450. Even assuming that a private plaintiff could suffer some "distinct and palpable injury to himself," Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), because of the Secretary's failure to consider whether the CMP adequately provided for the national defense mission, none of the allegations made by these plaintiffs in this case suggests such injury. Thus, with respect to this single, narrow, alleged violation of the statute, the plaintiffs have raised only a "generalized grievance shared in substantially equal measure by all or a large class of citizens." Warth v. Seldin, 422 U.S. at 499. In our view, they have not demonstrated their standing to object to the Secretary's alleged failure to fulfill his statutory duty.
The reason that we have addressed the plaintiffs' standing is that their absence of standing is an important factor in assessing the interests at stake in our consideration of the Secretary's motion to disqualify. Our conclusion on the plaintiff's lack of standing to challenge the Secretary's consideration of the national defense mission vitiates any harm that the United States might have suffered by reason of a conflict. Mr. Paschon's governmental employer, Major General Francis R. Gerard, of the New Jersey Air National Guard, submitted an affidavit in opposition to Mr. Paschon's disqualification, which affidavit denied the existence of a conflict, and from which we can infer that he does not view Mr. Paschon's alleged conflict to be detrimental to the Air National Guard. Nor has the Secretary of the Interior suffered any prejudice from the alleged conflict, since the plaintiffs' challenge to the Secretary's consideration of the defense mission is effectively a nullity. Mr. Paschon's arguments on behalf of the plaintiffs in no way eroded whatever contribution he, as Staff Judge Advocate, may have made to the federal government's assessment of the national defense mission.
Finally, the lack of substantive merit in the plaintiffs' claims in Counts I and II, coupled with the tendency of pending litigation to impede the implementation of governmental programs, strongly militates in favor of a resolution of the disqualification question now rather than later. We think that the appellees' interests (and those of the public) will be better served by our deciding this appeal in their favor now than they would be by a decision disqualifying Mr. Paschon from pursuing this appeal.
We note also that our decision on disqualification applies only to Mr. Paschon's representation of the appellants in this court in this appeal. We express no view on whether Mr. Paschon should be permitted to continue to represent the plaintiffs in the district court if and when the plaintiffs return to the district court to pursue their claims in Count III.
The appellees' Motion to Disqualify Counsel will be denied.
On the merits, we affirm the district court's decision, essentially for the same reasons set forth in the careful and thorough opinion of Judge Thompson. Hovsons, Inc. v. Secretary of the Interior, 519 F. Supp. 434 (D.N.J. 1981).
The judgment of the district court will be affirmed.
GARTH, Circuit Judge, concurring and dissenting:
At the time that this case was argued before us, I was satisfied that the district court's order of July 14, 1981 was not appealable. It was not appealable, in my view, because while the district court had rendered judgment on all but one of the claims presented, the fact that one claim remained unresolved because the district court had abstained from deciding it under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), was sufficient to deprive the entire order of finality for purposes of 28 U.S.C. § 1291. See Cotler v. Inter-County Orthopaedic Ass'n, 526 F.2d 537, 540 (3d Cir. 1975); Frederick L. v. Thomas, 578 F.2d 513, 516 (3d Cir. 1978). Further, the appeal had not been certified by the district court pursuant to Fed. R. Civ. P. 54(b), nor did it qualify for review under any other statutory or decisional authority.
Since this case was argued, however, the Supreme Court has intimated, in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765, 51 U.S.L.W. 4156 (1983), that orders abstaining from exercise of jurisdiction under Pullman are final for purposes of appellate review. Thus, because the Pullman abstention portion of the July 14, 1981 order must be regarded as final for purposes of review if we accept the Supreme Court's intimation to that effect, the entire order in the present case would now be regarded as final.
It should be noted, however, that a Pullman abstention order was not directly in question in Cone, and thus that language in the Cone opinion dealing with the finality of Pullman abstention orders is arguably dictum. Further, the Supreme Court, as a historical matter, inaccurately characterized the holding in Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 8 L. Ed. 2d 794, 82 S. Ct. 1294 (1962), the case which the Supreme Court regarded as having held that Pullman abstention orders were appealable.*fn1
For these reasons, I am not as confident as is the majority that Cone must be read as overruling such decisions as that of this court in Cotler v. Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537, 540 (3d Cir. 1975).*fn2 See Maj. op. at 1211.
Even though I continue to believe that the rationale accepted in Cotler is a sound and viable one, and I have doubts about the reach of the actual holdings in Cone and Idlewild, I am constrained to recognize the clear direction provided by the Supreme Court in Cone with respect to the appealability of Pullman abstention orders. I therefore agree with the majority -- albeit with substantial misgivings*fn3 -- that the July 14, 1981 order of the district court is properly before us for review. See Maj. op. at 1211.*fn4
I do not agree, however, that we should rule on the disqualification motion presented to this court by the Secretary, and never presented to, addressed by, or ruled upon by, Judge Thompson in the district court. This motion is based on allegations that Paschon has violated Disciplinary Rules 9-101(B) and 5-105(B). We have before us, in connection with these allegations, flatly contradictory affidavits implicating the very core of the representation of Hovsons' by Paschon. In my opinion this motion raises serious factual questions appropriate only for a fact-finding court, in this instance, the district court.*fn5
Thus it is highly inappropriate and unwise for this court to resolve these disputed questions of fact by engaging in appellate fact finding. See Pullman-Standard v. Swint, 456 U.S. 273, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982). Indeed, we have invariably subscribed to the proposition that ". . . it is not the proper role of this court to make findings of fact in the first instance . . ." FTC v. British Oxygen Co., Ltd., 529 F.2d 196, 200 (3d Cir. 1976). Because motions seeking to disqualify attorneys turn on the facts,*fn6 (as the majority concedes that this one does, see Maj. op. at 1212 & n. 4), I suggest that the Majority has exceeded its responsible and proper function by the manner in which it has reviewed the documents before us, and thereby effectively precluded the possibility of the district court finding facts that are essential to the proper disposition of the Secretary's motion.
Moreover, I believe that when a serious claim for disqualification is presented in a case that will not be ended by our disposition on appeal,*fn7 and especially when the circumstances alleged in support of the disqualification motion permeate the trial as well as the appellate proceedings, it is inappropriate to resolve that issue and to limit its resolution, as the majority does, to the appellate proceedings. For, in the event that the Secretary pursues his motion before the district court, there might well emerge before that court facts, which, if they had been known to us, would have resulted in disqualification before the district court. The effect of our present ruling could only be to prevent consideration of those facts for the period during which this appeal has been prosecuted, surely an incongruous and unjust result.
Ultimately the third count of Hovsons' complaint may return to the district court for disposition, and in any case Paschon continues to represent plaintiff Hovsons' in a matter implicating the public interest. Under these circumstances, I do not believe that we should take it upon ourselves, without the benefit of a proper exploration of the facts involved and of a resolution of the conflicting allegations, to conclude that, even if violations of the Code of Professional Ethics had occurred, disqualification would be inappropriate.*fn8
For myself, I would not have come to any conclusion with respect to the Secretary's motion, nor would I have found or assumed facts from disputed contentions in the parties' affidavits. Rather, I would have left the matter of Mr. Paschon's disqualification to the district court on remand.
I, therefore, respectfully dissent from the judgment reached by the majority of this court, but only insofar as it denies the Secretary's motion for disqualification of Hovsons' counsel.