ELR Citation: ELR 20459
No(s). 91-5358 (11th Cir. Aug 11, 1992)

The court holds that a corporation, previously found to have violated the Federal Water Pollution Control Act (FWPCA) and the Rivers and Harbors Act (RHA) in building a bridge in the Florida Keys, is not entitled to a retrial on all issues presented at trial and must prepare and submit an environmental plan for implementation of a remedy, even though the U.S. Supreme Court vacated the Eleventh Circuit's previous ruling that affirmed the district court and contained the order to prepare the environmental plan. On appeal from the bench trial, the Eleventh Circuit affirmed the district court's civil penalties, equitable restitution, and denial of the corporation's request for a jury trial, but ruled that the corporation should have been required to prepare and submit for court approval a proposed environmental plan for implementation of the remedy (M.C.C. I, 15 ELR 21091). On appeal, the U.S. Supreme Court vacated the Eleventh Circuit's affirmation of the district court and directed the Eleventh Circuit to reconsider its opinion in light of the Court's decision in Tull v. United States, 17 ELR 20667, which held that a defendant is entitled to a jury trial for the determination of its liability for civil penalties under the FWPCA. On remand, the Eleventh Circuit interpreted Tull to affect only that part of the Eleventh Circuit's previous decision related to the issue of the corporation's right to a jury trial, and found the remaining decision to be the law of the case (M.C.C. II, 18 ELR 21080). The Eleventh Circuit thereafter remanded to the district court for a jury trial on the issue of liability only and ordered that the remedy part of the Eleventh Circuit's previous decision should be used to guide the district court if the corporation were found liable. Subsequently, the corporation petitioned for rehearing, claiming that the Eleventh Circuit had misinterpreted Tull and that it was entitled to a retrial on all issues. The Eleventh Circuit denied the petition and noted that no jury trial would be necessary if the government abandoned its claim for civil penalties and simply accepted the equitable restitution ordered by the district court (M.C.C. III). On remand, the district court accepted the government's waiver of its claim for civil penalties and ordered the corporation to prepare and submit an environmental plan.

The court holds that the Supreme Court's order vacating M.C.C. I did not set aside all prior proceedings and did not entitle the corporation to a retrial on all issues. Although a general vacation by an appellate court of a lower court's judgment vacates the entire judgment below, a vacation that merely requires further consideration in light of a new Supreme Court decision is much more limited and does not nullify all prior proceedings. 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 this court was not bound by its previous decision, it was free to adopt any or all of M.C.C. I that, upon reconsideration, it determined to be unaffected by Tull. The court observes that this is precisely what it did in M.C.C. II and M.C.C. III. Although this court's statement in M.C.C. II that the remaining portions of M.C.C. I were the law of the case may not have been technically correct in light of the Supreme Court's vacation of M.C.C. I, its effect was to reinstate by reference only those portions of M.C.C. I that were considered to be unaffected by Tull, and from which this court saw no reason to depart. Upon remand, therefore, the district court was required to comply with the mandate and statement of the law in M.C.C. II and M.C.C. III, which it did.

The court also holds that the corporation's other assertions on appeal, that the United States lacks standing to seek relief and that the navigational servitude doctrine insulates the corporation's activities from the FWPCA and the RHA, are without merit. This court's decision in M.C.C. I rejected these same arguments, and was not affected by the Tull decision.

[Previous decisions in this litigation are published at 13 ELR 20305, 15 ELR 21091, and 18 ELR 21080.]

Counsel for Plaintiff/Appellee
Suzan Ponzoli, Ass't U.S. Attorney
U.S. Attorney's Office
155 S. Miami Ave., Ste. 600, Miami FL 33130
(305) 536-5477

Counsel for Defendants/Appellants
Thomas A. Harris
Arbitration and Mediation Services, Inc.
427 High St., Chattanooga TN 37403
(615) 265-3505

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