Appeal from the United States District Court for the Central District of Illinois. Nos. 1075 and 1094 -- Robert D. Morgan, Judge .
Before Pell and Sprecher, Circuit Judges, and Marovitz,*fn* Senior District Judge.
These two consolidated cases concern the operation of a hazardous waste storage facility by Nuclear Engineering Company (NEC) at Sheffield, Illinois. This interlocutory appeal, brought pursuant to 28 U.S.C. § 1292(b), raises issues pertaining to the existence of federal subject matter jurisdiction over the two cases. For the reasons set forth below, we find that the district court is without jurisdiction to entertain these actions.
In a sense, the origin of the dispute underlying these cases can be traced to a press conference held on April 22, 1980*fn1 by former Illinois Attorney General William J. Scott. At the press conference, Scott announced that he intended to commence lawsuits against persons he believed to be violating Illinois' environmental protection laws, among whom was NEC for its operation of the Sheffield facility. The Sheffield facility is used for the storage of explosives and chemical and radioactive wastes.
On May 8, 1980, NEC filed an action in United States District Court for the Central District of Illinois against Scott as an individual and in his official capacity (the "NEC action"), alleging jurisdiction under 28 U.S.C. §§ 1331(a), 1332(a), and 2201-02. The federal law gravamen of NEC's complaint is that Scott has threatened to require NEC to cease operation of the Sheffield facility and to remove all hazardous wastes now stored there in violation of NEC's fourteenth amendment due process rights and its rights under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987 (the "RCRA").*fn2 NEC states in its complaint that its Sheffield facility is operated pursuant to all permits required by the Illinois Environmental Protection Act (the "IEPA") Ill.Rev.Stat. ch. 111 1/2, §§ 1001-51, and is subject to the provisions of the RCRA relating to the disposal of hazardous wastes.*fn3 NEC alleges that if Scott were to institute proceedings against it to force the discontinuance of its operation of the Sheffield facility, Scott would be "acting unlawfully outside the powers of his office."
NEC claims that Scott's alleged threatened interruption of its services is injuring it in that current and potential customers are seeking the services of a handler of hazardous wastes whose services are not so threatened. NEC also alleges that Scott's threatened action is causing it injury in that its ability to obtain financial investment is being impaired. NEC seeks a declaratory judgment providing that as long as it complies with the RCRA and all state and local law with respect to its operation of the Sheffield facility it may continue the operation of that facility. Further, NEC requests that an injunction be issued restraining Scott from instituting any civil action against NEC as to its operation of the Sheffield facility.
On May 20, 1980, Scott filed a four-count complaint against NEC and Teledyne Industries, Inc.*fn4 in Illinois Circuit Court for the Thirteenth Judicial Circuit (the "Illinois action"), alleging that the Sheffield facility was being operated in violation of state statutory and common law. Specifically, Counts I and II assert violations of provisions of the IEPA, Count III alleges a violation of Ill.Rev.Stat. ch. 14, §§ 11 and 12,*fn5 and Count IV alleges a common law nuisance. The Illinois action seeks an injunction requiring NEC to cease the operation of its Sheffield facility and to remove all hazardous wastes stored there. The Illinois action also seeks the assessment of penalties for each violation of state law alleged and for each day of continued operation of the facility in violation of state law.
On the same day the Illinois action was filed, Illinois moved in district court to dismiss the NEC action asserting, inter alia, that the district court lacked subject matter jurisdiction over the NEC action and, in the alternative, that the district court should abstain from hearing the NEC action. On May 28, 1980, NEC removed the Illinois action to United States District Court for the Central District of Illinois, alleging jurisdiction pursuant to 28 U.S.C. §§ 1331(a) and 1332(a). On the following day, Illinois moved to remand its action to state court, denying the existence of federal subject matter jurisdiction over its claims.
On May 29, 1980, the district court heard pending motions in both the NEC and Illinois actions, including Illinois' motion to dismiss and its motion to remand. Both of those motions were denied by the district court without the issuance of a written opinion. The district court that day also consolidated the two actions. On June 20, 1980, Illinois filed a motion requesting that the district court reconsider its denial of Illinois' motions, enter findings in support of its rulings on Illinois' motions, and, in the event reconsideration was denied, certify its order denying Illinois' motions for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On June 25, 1980, the district court denied Illinois' motion insofar as it sought reconsideration and to obtain the entry of findings,*fn6 but granted Illinois' request that the district court certify its denials of Illinois' motions for interlocutory appeal pursuant of 28 U.S.C. § 1292(b). In its certification order of June 25, the district court found that the question of whether diversity jurisdiction exists over the two actions was a controlling question of law about which there is a substantial difference of opinion. On July 1, 1980, NEC moved to amend the district court's June 25, 1980 order "so as to certify the issue of federal question jurisdiction as a controlling question of law in addition to the issue of diversity jurisdiction." On July 3, 1980, the district court granted NEC's motion. Illinois filed its request for interlocutory appeal on July 11, 1980. Thereafter, we granted leave to appeal.
II. Appellate Jurisdiction.
Before turning to the substantive issues raised by this appeal, we must address a rather thorny question pertaining to our appellate jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1292(b). Appeals brought pursuant to section 1292(b) must be filed within 10 days of the entry of the certification order, and that requirement is jurisdictional.*fn7 E. g., Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407, 408 (6th Cir. 1971). The district court's June 25 order of certification effectively commenced the 10 day period for appeal from the district court's order denying Illinois' motions to dismiss the NEC action and to remand the Illinois action.
The question presented is whether Illinois' appeal was timely filed even though filed more than 10 days after entry of the district court's June 25, 1980 order. Or, stated differently, the question presented is whether the 10 day period for purposes of appeal must be computed from the date of entry of the June 25, 1980 order or may instead be computed from the date of entry of the district court's July 3, 1980 order amending the June 25 order. The answer to this question determines whether the appeal is properly before the Court.
The instant jurisdictional question appears to have arisen from a fundamental misunderstanding shared by the parties and the district court as to the scope of a section 1292(b) appeal. The parties and the district court apparently interpret section 1292(b) as authorizing interlocutory appeal of specific legal questions, rather than from particular orders. The language and purpose of the statute and the applicable law, however, are to the contrary. Civil Aeronautics Board v. Tour Travel Enterprises, Inc., 605 F.2d 998, 1003 n.12 (7th Cir. 1979); Consolidated Express, Inc. v. New York Shipping Association, 602 F.2d 494, 501-02 (3d Cir. 1979), vacated on other grounds, 448 U.S. 902, 100 S. Ct. 3040, 65 L. Ed. 2d 1131 (1980); Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 994-95 (2d Cir.), cert. denied, Bersch v. Arthur Andersen & Co., 423 U.S. 1018, 96 S. Ct. 453, 46 L. Ed. 2d 389 (1975); see generally Note, Interlocutory Appeals in the Federal Courts under 28 U.S.C. § 1292(b), 88 Harv.L.Rev. 607, 628-29 (1975). Section 1292(b) permits appeals from orders involving "a controlling question of law as to which there is substantial ground for difference of opinion," not just the specific question. Civil Aeronautics Board v. Tour Travel Enterprises, Inc., 605 F.2d at 1003 n.12. When an order is certified for appeal by a district court and appeal is accepted by a court of appeals all questions material to the order are properly before the court of appeals. To view section 1292(b) as allowing review of only the question of law making an order appealable would frustrate the utility of the section 1292(b) appeal process where, for example, the court of appeals affirms the order certified, based upon its agreement with the district court's resolution of the legal question, but fails to reach other questions material to the order that were erroneously decided by the district court. Hence, when the district court in the instant case on June 25, 1980 certified its order denying Illinois' motions, all material questions decided in that order, including the question of whether federal question jurisdiction existed over the cases, would have been properly before this Court if an appeal had been timely filed and accepted. The July 3, 1980 amendment to the June 25, 1980 order was therefore superfluous.
Clearly, this Court may not enlarge the time for filing an appeal pursuant to section 1292(b). Fed. R. App. P. 26(b). However, it is not so clear whether this Court may permit a district court to in effect enlarge the time for appealing from a certified order by vacating and reentering or amending an order of certification so as to arguably recommence the running of the 10 day period.*fn8 That issue has been grappled with by few courts, all of them outside of this Circuit. Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977); In re La Providencia Development Corp., 515 F.2d 94 (1st Cir. 1975); Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407 (6th Cir. 1971); Borskey v. American Pad & Textile Co., 296 F.2d 894 (5th Cir. 1961); Nakhleh v. Chemical Construction Corp., 366 F. Supp. 1221 (S.D.N.Y.1973). None of these cases resolved the precise issue before this Court, and the only principle common to most of the above decisions is that a district court may not reenter a certification order to enlarge the time for appeal when the failure to timely appeal from the original certification order was due solely to mere neglect of counsel. E. g., Woods v. Baltimore & Ohio R.R. Co., 441 F.2d at 408. But see In re La Providencia Development Corp., 515 F.2d at 95. Nakhleh and Borskey stand for the proposition that reentry of an order of certification will be given effect only if accompanied by reconsideration of some new issue relating to the merits of the order sought to be appealed from. La Providencia, on the other hand, implicitly sanctions reentry of a certification order if it will afford the parties a timely appellate decision. The most flexible approach is apparently that endorsed by the Third Circuit in Braden where the court gave effect to the reentry of a certification order upon consideration of the facts surrounding reentry of the ...