Hovsons, Inc. v. Secretary of Interior of United States

711 F.2d 1208, 19 ERC 1751

• Court: Court of Appeals for the Third Circuit
• Decided: July 13, 1983
• Docket: No. 81-2580
• Status: Published

Opinions

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 Pine-lands 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. § 471i(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. § 471i(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, 61 S.Ct. 643, 85 L.Ed. 971 (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.

II.

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.

A. Jurisdiction

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 Pullman-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); Amy 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., — U.S. —, 103 S.Ct. 927, 74 L.Ed.2d 765 (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. § 1291.¹ 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 Pine-lands 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. § 471i(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 CMP², 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 alleges³ that Mr. Pas-chon’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 only⁴, 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 ease, 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, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (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, 95 S.Ct. at 2205. 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.

III.

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).

IV.

The judgment of the district court will be affirmed.

1 . ... The Court made clear the continuing validity and scope of Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) and, in a footnote, pointed out that “Idlewild’s reasoning is limited to cases where (under Colorado River [Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)], abstention, or a closely similar doctrine) the object of the stay is to require all or an essential part of the federal suit to be litigated in a state forum.... We hold only that a stay order is final when the sole purpose and effect of the stay is precisely to surrender jurisdiction of a federal suit to a state court.” — U.S. at p. — n. 11, 103 S.Ct. at p. 934 n. 11.

2 . The Secretary was also required by 16 U.S.C. § 471i(g)(2) to consider the adequacy of public participation in the formulation of the CMP; the adequacy of the state’s proposals for implementation of the CMP; federal representation in implementation of the CMP; the sufficiency of the proposed use of police power in the plan; natural, ecological, agricultural, scenic, cultural, recreational and economic factors; and the continuing oversight of the plan by the Governor of New Jersey.

3 . The Secretary’s motion was made for the first time in this court. The motion alleges, and we have no reason to doubt, that the United States Attorney’s Office did not become aware of Mr. Paschon’s work with the New Jersey Air National Guard until after the filing of the present appeal.

4 . There is a substantial dispute as to whether this matter was one in which Mr. Paschon “had substantial responsibility while he was a public employee” within the meaning of DR 9-101(B). With respect to DR 5-105(B), it is far from clear whether Mr. Paschon’s representation of these appellants (arguing that the defense interests of the nation were not adequately safeguarded by the Secretary in approving the CMP) has been, or could be, adversely affected by his relationship with the Air National Guard. So far as the record discloses, he has never been obliged to support the CMP or to urge that it does adequately accommodate the defense interests of the nation. In any event, the appellees are not in a position to preclude waiver of disqualification by the respective clients.