*1 ' 3. Discussion had stand whether Miller issue close challenge the search is a one. ing to GAYLE, Plaintiff-Appellant, Gregory good reasoning in makes
While the Rahme sense, complicating this involves several case govern present in that factors not case.. WALKER, Superintendent, Hans G. disputed agreed
ment has not that Lewis al., Defendants-Appellees. et Therefore, ar it is property. store Miller’s 97-2710. No. time, guable length of that at least for some privacy in expectation of Miller had an Appeals, States Court of United goods society might that consider reasonable Circuit. Second páyment involved. Lew whether or not was July 1998. ready getting he is’s statement was complicates goods further mat dispose CABRANES, Circuit Before: MINER issue, standing We need not decide ters. CHATIGNY,* Judge. Judges, District however, express opin no and we therefore having brought appel- appeal An been assuming argument upon ion it. Even se, having found that pro lant and the Court busi standing Miller and that the had necessary appeal, it is transcript a for the cards, phone, beepers, and hotel cell ness hereby appeal that said is DIS- ORDERED admitted, directory should not have been to rein- MISSED WITHOUT PREJUDICE government correct that error was provided appellant, within 30 statement beyond harmless a reasonable doubt. The order, days provides this of the date of during the establish items seized search (2) (1) transcript; proof trial Court with: girls massage ran a busi that Miller and the transcript; that he has ordered trial suggestion Notwithstanding Miller’s ness: (3) proof that he has moved disputed he have existence would transcript. free Fed. court for a trial See massage for the admission business but 10(b). R.App.P. Upon timely filing of a tran- materials, disputed the existence of appeal script appeal, oh will in the record overwhelming evi- BMI established be reinstated. dence, testimony including the of MG and LK, to Mar- tape-recorded Miller’s statement outcall, girl he
tinez that had Miller’s massage ran
post-arrest that he admission girls, with the and the fact that
business arrest, Miller’s she
when MG was found after handing BMI cards out business In re CHAMBERS DEVELOPMENT hotel. downtown INC., COMPANY, Petitioner. No. 97-3145. argu- all of Miller’s have considered We require they do not ments find Appeals, States Court of United above, stated here. For reasons reversal Third Circuit. judgment the district court. we affirm the
Argued June May Decided * Connecticut, sitting by designation. Court for the District the United States District Of *3 miasma which plunged procedural into a
...
at
virtually impenetrable.” 62 F.3d
ever.
It
more confused than
The case is now
jurisprudential
miasma to a
evolved from
cube,
jumbled
becoming
more
Rubik’s
dispute arises from breach
each turn. The
action between Chambers and
of contract
Authority
Utilities
Passaic
(“PCUA”).
lead-
the intricacies
We detailed
I. We will
ing up
dispute
to the
background
insofar
summarize the
now
raised
necessary
the issues
as is
to resolve
*4
petition before us.
by the mandamus
1987,
into’
In
and PCUA entered
Chambers
County’s
dispos-
for Passaic
waste
a contract
into three
The contract was divided
al.
and Ac-
parts:
Agreement
for the Grant
(“Initial Agreement”);
quisition of License
and
Long-Term Agreement for the Grant
Residue
Acquisition of a License for Ash
(“Long-Term Agreement”);
Disposal
Waste
David Fernan-
(Argued),
R. Cole
Michael
Agreement.
License
and an Easement and
Bevelock, Riker,
dez,
Danzig, Scher-
Gregory
rights
Agreement governed the
The Initial
Morristown, NJ,
LLP,
er, Hyland & Perretti
1,
parties
from December
and duties of
Co.,
Development
Inc.
for Chambers
Long-
The
December
1992.
until
right's and
Agreement governs the
L. Term
Benjamin
(Argued), Jonathan
Clarke
Gluck,
parties from December
DeCotiis,
duties of the
William's,
Fitzpatrick &
1, 2002.
Teaneck, NJ,
County
until December
Passaic
Utilities
for
Authority.
required
Agreement
Initial
PCUA
municipal solid waste
deposit all of its
McKEE,
Before: STAPLETON
(“MSW”)
Pennsyl-
in
in
landfills
ROSENN,
Judges, and
Senior
Circuit
air-
to reserve
required Chambers
vania and
Judge.
Circuit
df 2.25 million
up to maximum
space fоr
year period.
in
first five
MSW the
tons of
THE
OF
COURT
OPINION
$51,225,000 in advance
paid Chambers
disposal rights. Perfor-
period
for its first
McKEE,
Judge.
Circuit
in
Agreement
is not
Initial
mance of the
Inc.,
Company,
Development
Chambers
dispute.
following
of mandamus
petitions for a writ
ash
Agreement covered
Long-Term
Co.,
Development
remand
Chambers
our
by-
non-processible and
residue waste
Inc.,
Authority,
County
Passaic
Utilities
by a mass burn
generated
pass solid waste
I”).
Cir.1995) (“Chambers
On (“MOU”) damages for Understanding The district court noted no Memorandum Landfill, Long-Term breach had occurred bеcause the Empire Sanitary with Under Inc. MOU, agreed Agreement all not to take effect until De- PCUA to deliver Passa- was 1, 1992, County Empire’s granted permanent ic landfill in solid waste to cember a Pennsylvania period injunction, following of 15 for caveat: Eastern with MOU, years. Empire prior like the attempting, and is This Court cannot Chambers, subject agreement with to permanent injunction, issuance of a review, approval amendment NJDEPE, statutory bind which has the NJDEPE. duty regulate of solid waste Jersey. approved New NJDEPE County the Passaic Freeholders and While contingency use of landfill preparing Empire were PCUA submit period for the 1992-2002 and there is NJDEPE, Chambers learned of the MOU to nothing of to indicate that until No- record complaint Empire MOU filed attempted vember PCUA has district court for the District of Western approval obtain other method seeking enjoin Pennsylvania the PCUA disposal. contrary Absent direction Empire. proceeding from with NJDEPE, from Passaic bound to an antici- alleged that MOU amounted honor its contract with Chambers.2 Long patory Term breach PCUA Agreement it had with Cham- Chambers. Accordingly, injunctive the court worded its alleged equitably bers also PCUA order as follows: a contract estopped entering into permanent injunction granted to [A] Empire. Plaintiff, Development Corpora- Defendant, against tion and Passaic Coun- filed cross-motions ty Authority. until Utilities Unless and summary judgment. The PCUA’s motion *6 contrary by directed the a valid certifi- argument Dewling on its that the was based [NJDEPE], cation of the con- PCUA shall rejection Long- Certification was operating tinue under the terms and condi- was Agreement Term that PCUA free Agreement LongTerm tions of the for the options pursuant explore alternative landfill grant acquisition aof license of ash contained in Commissioner the directive Provided, disposal. residue waste howev- Dewling’s certification. er, nothing in this shall be order 20, 1992, November the district court On restricting any by proceeding construed as granted, summary judgment in favor of any seeking ap- party before NJDEPE of anticipatory on its breach con- any proval disapproval long- of primary held claim. district court that the tract plan disposal municipal term for the of Agreement’s validity did Long-Term not de- solid waste PCUA. pend ever upon whether the RRF was built. summary judg- entered The district court It held: then equita- ment in favor of on Chambers’ PCUA ap- of landfills Because use estoppel ble claim because Chambers could proved contingency, as a and becausе reasonable reliance. demonstrate approved plan no other for NJDEPE [A]ny Long- the disposal of solid waste in the 1992-2002 reliance Chambers on Agreement being primary Term solid period, obligated PCUA is both under its Agreement plan under waste for entire 1992- Long-Term disposal New Chambers, period Jersey to use Cham- is unreasonable. state law continue sophisticated corporation involved in as bers’ landfills. action, any pri of date when NJDEPE to take doctrine 1. November PCUA Empire mary jurisdiction implicated the MOU with to NJDEPE for submitted approval. is not here. See Inc., Teleconcepts, Cir. MCI 1995). clearly stated 2. Since the district court that its interpreted could not be to bind the County a Verified governmental enti- Passaic submitted negotiations two with ties, seeking approval rely contingent ap- of could not Petition to NJDEPE Agreement disposal Long-Term Empire County’s primary of as proval as Passaic equivalent primary approval. seeking PCUA took plan. approval, In position Commissioner’s any portion party appealed Neither “only a- approved Certification court’s 1992 decision. district November other contingency plan absence injunc- court issued its Before approvеd by the DEP.” disposal strategy tion, it had not NJDEPE notified PCUA that instate, primary yet come forward with’ 8, 1993, agreed to re- April On NJDEPE solution. Scott Wein- disposal Commissioner contingent Empire arrangement, view the er wrote: long-term, upon submitting also in- PCUA currently County disposal has no Passaic 20, 1993, plan. August disposal state On plan place long-term of out- use participated a status conference PCUA disposal authorized with- of-state Acting with the then Commissioner contingency plan backup in the context of NJDEPE, M. Fox. At that confer- Jeanne Department’s Sep- stated use as within “[tjhere ence, is no stated that exist- PCUA Therefore, tember 1987 certification. ing [with Chambers] out-of-state contract Passaic Plan is deficient with recognized and that fact has been Passaic 13:lE21(b)3. respect to N.J.S.A. plan.” new County in its submission of this Despite this not in reminder 7, 1993, On Commissioner Fox October compliance requirement for an in- approved proposal designate Em- PCUA’s disposal facility, state PCUA submitted pire’s County’s out-of-state landfill as Passaic Empire MOU to NJDEPE review primary disposal approving mechanism. approval on November Decem- On Empire arrangement, Fox Commissioner 7, 1992, ber the Commissioner NJDEPE comparison stated: “In to the Chambers’ formally to: оrdered Agreement, Empire Agreement offers Department supporting all Submit significant savings in the form avoided respect proposed to its documents with transportation costs including the plan certification Memoran- municipal waste.” The Commissioner also Understanding and contract with dum Long-Term that the wrote Chambers-PCUA long-term disposal Empire as well as the Agreement merely contingent “was ar- strategy previously required by the De- *7 which, rangement purposes, Department for 11, 1992 partment’s September Plan'Certi- Nonetheless, never effect.” the Com- took justifications sup- fication other Long-Term indicate missioner did the 9,1992. January port by this contract Agreement a completely was not dead issue. day, extend- On the same the Commissioner imposed “If ... legislation She wrote: arrangement year the Chambers for one ed Empire Agreement which the renders void regulatory process completed, was until the voidable, Long-Term the Chambers Empire. a contract with and PCUA executed Agreement contingency plan can be activat- 1992, On or about December ed, pending the of the institution instate application post judgment filed an for relief long-term disposal solution.” seeking temporary a with the district сourt not restraining against approval order PCUA’s of Chambers did seek to have PCUA’s Order, Empire suggested In an Empire. a contract with dated contract with rescinded as 1, 1993, February 1, February court’s the district denied the district Or- order, Instead, restraining supplement but indicated that it der. Chambers filed a the seeking previous summary judgment entertain a motion the revoca- the motion would remedy. contending another tion of PCUA’s action or execution of MOU and Empire actual, proceeding “post- contract with an Chambers was its constituted While actions, judgment” proceeding anticipatory, was rather than an breach of PCUA con- approval good tract a process with NJDEPE for breach the covenant with dealing. argued Empire faith fair Contract. On December July ap- and Chambers Long- denied on was that the of the case law (Chambers I). pealed. had been declared a bind- Agreement Term and that in or- ing and enforceable II. order, comply der to the district court’s with I, panel In of this court unani- approval of the required PCUA to seek was mously district concluded that court’s Agreement, present Chambers-PCUA summary .judgment to PCUA grant of approv- to NJDEPE for competing contract improper never sought damages PCUA had moved al. because This time Chambers in. summary judgment. at 584. profits Id. The expected lost amount of its majority agreed “there panel also are of the balance Chambers-PCUA e.on- regarding unresolved material issues of fact traet. obligations under the Chambers [PCUA’s] responded Agree- that the Initial PCUA agree- long-term unaltered unrescinded as it ment the law of the case was the can an evi- ment which resolved be NJDEPE, only plan approved dentiary majority hearing.” Id. right gave it the to seek court’s that, agreement long-term noted while the plan. Empire approval NJDEPE subject expressly did not that it was state a magistrate referred to matter was NJDEPE, approval nonetheless judge Report and Recommenda- who filed a could not be unless NJDEPE implemented tion he recommended that Cham- which approved plan. Id. PCUA’s amended Since summary judgment de- bers’ be motion plan .approve did NJDEPE PCUA’s “in summary judgment granted nied and that toto”, “enig- Certification was though in favor never of PCUA even meaning of the matic” and “left the Cham- summary judgment. moved for Long-Term Agreement susceptible bers 29, 1994, the On June district court interpretation.” than one Id. more Accord- adopted Report and Recommendation of grant ingly, court’s we vаcated the district judge. while magistrate and, summary judgment remanded “for fur- report adopting magistrate’s recom- opinion, proceedings with this ther consistent mendation, district court wrote: privilege to Chambers amend evidence record to [I]f there were complaint present it to the case in enable support ... Id., assertion doing so, In its current status.” at 589. “[PCUA], 1992indicated that the as late as court as we instructed the district follows: performed long- on a contract would be remand, court should first On the district find that term I would New Jer- basis”... [Dewling Certi- determine the effect scope duty sey precedent on the long-term on the Chambers fication] hearing into good required faith whether connection, agreement. it should ascer- duty good faith breached [PCUA] Authority tain whether the evinced un- performance of its contract with Cham- long-term derstanding that the Chambers bers. binding by agreement was still commis- sioning report Aaimo and other responded to this *8 Chambers statement 59(e) reports.3 It also determine a Fed.R.Civ.P. similar should filing motion under Authority’s purpose fact in seeking judgment to as a that the to amend the so as hearing duty filing complaint Jersey in the New evidentiary on the of order an supported it good That State Court and whether performance. faith motion was Chambers, clearly prepared port it According required PCUA for PCUAand shows 3. to that basis, formally certify, an period annual Chambers that its that it covered the time from to could accommodate the volume Agree- facilities period the time of both the Initial contemplated the fifteen- of solid waste full Long-Term Agreement. the Chambers ment and year Chambers that of the contract. claims term argued report the demonstrates that Alaimo that event, in PCUA it done so. In expected for waste to use Chambers dis- PCUA independent an challenged the certifications and expired. posal after contract the short-term consultant, Engineering, was to Alaimo retained argument ap- the not in PCUA did address this sought perform study. report to The determine a peal. capacity Re- of the Chambers landfills. The utility against Au- In a lawsuit another that it lawsuits. contention Chambers' they binding authority involving competitor, a contract thority knew a Chambers had subject Authority’s place, in in argued had that contract Chambers compliance with certification.4 [NJDEPE] in was made question was invalid because-it factually court determine Finally, the must bidding.5 public The Cham- the absence of Authority attempting whether the with- was also reached bers contract PCUA obligations under disengage itself from its. that public bidding, PCUA-asserted out long-term contract with Chambers because judicially es- be Chambers should therefore could with in it secure validity “con- of its topped asserting Empire prices it at better and whether Second, argued tract” with PCUA. PCUA good the covenant of faith and fair violated complaint should be dis- that the amended dealing doing. in so represented Chambers had missed because seeking interpretation it
that was not Dewling phase in an Certification earlier One argued lawsuit. PCUA Count remand, filed count On a two exactly complaint amended did Chambers’ opinion. App. complaint per our amended that and it should therefore be dismissed. alleged Dewling 26-40. One Count identify a Certification directed PCUA to summary re- judgment motion was disposal- facility Jersey New 1992 and magistrate judge, who recom- ferred to contingent alter- approved as the com- mended that Count One of amended identify native in the event PCUA failed to plaint under doctrine be dismissed disposal facility. in-state judicial estoppel. He concluded that Cham- that, by choosing perform averred it previously represented bers had that was qualifications, a con- thesе PCUA assumed seeking interpret to have obligation tractual to use Chambers as the Certification, Dewling but that Chambers’ Count exclusive out-of-state- alternative. just complaint sought amended such an inter- duty alleged that Two PCUA breached magistrate judge pretation. Id. at 7-8. The dealing by good convincing. faith and fair rejected judicial estoppel argument, first contract, approve Empire NJDEPE to validity agreement had because the destroying thus the fruits of the Chambers- already by the established district court been PCUA contract. the law the ease. and was thus eventually filed a motion for sum- magistrate judge went even mary argued judgment which further. ruled He that Count One should complaint amended must be dis- plain meaning of “as barred dismissed judicial estoppel. the basis missed on the 1987 certification.” Id. at n. 7. The judicial estoppel argument two facets. had magistrate judge opined argued had as- PCUA first that Chambers positions separate give “did not Chambers an ex- serted inconsistent two Certification PCUA, According January September, Cham- PCUA filed a state court action, against declaratory judgment naming began competitor, as defen- bers suit Waste Man- Chambers, NJDEPE, Inc., seeking agement Pennsylvania, Jersey Empire dants in New court, seeking lоng-term perform that it is liable to state to invalidate ash declaration under Management performance disposal after if such contract between Waste the contract later-approved primary Authority. -and the Essex Utilities Cham- due the existence of a alternative; law, declaring may Jersey that PCUA bers contended under New coun- pay- ty utility required upon authorities terminate its contract with Chambers are to adhere *9 public-bidding procedures awarding any long- damages in ment in accordance with section 9.3 contract; Thus, restraining argued and Chambers from term ash contracts. Chambers, obligation County-Waste interfering Essex with PCUA’s to secure con- because the safe, Management arrangements adequate pub- provide awarded tractual to was without bidding, illegal ratepayers services to its and lic it and void. Chambers economical argued prevailed parties trial that action dem- in the court and the ulti- citizens. Chambers this mately agreed appeal with the that its contract to dismiss an filed onstrates PCUA believed Jersey appellate New court. with Chambers valid enforceable.
223
Cir.1996).
Supreme
Act
period”
“[t]he
That
states
elusive contract
1992-2002
Id.,
the
n. 2.
Act of
out-of-state аlternative.
3
Court and all courts established
necessary,
may issue all
or
Congress
writs
adopted
Report
court
The district
jurisdic
respective
in aid of their
appropriate
opinion
as its
and entered
Recommendation
agreeable
usages
princi
to
tions and
dismissing
an
Count
the amend-
One of
1651(a).
ples
§
Tradi
of law.” 28 U.S.C.
result,
complaint.
ed
As a
the breach of
tionally,
writ of
used
mandamus has been
good
claim asserted in
re-
faith
Count Two
an inferior
exer
“to confine
court to a lawful
Thereafter,
de-
mained.
district court
jurisdiction
prescribed
compel
cise of its
or
requests by both
and PCUA
nied
duty
authority
it
its
it
its
to exercise
when
is
certify
the matter for immediate interlocu-
Co.,
so.” Will v.
Fire Ins.
437
to do
Calvert
1292(b).
tory
§
appeal pursuant
28 U.S.C.
655, 661,
98 S.Ct.
224
opinion
opinion ...
becomes
University
Edgar,
v.
with
Hospital
[our]
Hahnemann
(citatiоns
must
considered
quota- part
internal
the mandate and
be
225
long-term
Report
1996
December
Recommen-
derstanding that
the Chambers
binding by
judge’s
agreement
magistrate
still
commission-
erro-
was
dation at.7-8.
report
similar
Dewling
and other
ing the 1991 Alaimo
neous
that the
Certifica-
conclusion
589. It
be obvious
reports.”
Id. at
should
tion
enforced as a matter of law was
could be
that,
the contract
had
concluded that
we
only
two
See
at 3
discussed
footnotes.
Id.
of law with no
be enforced as matter
n.'7;
could
February
n. 2
see
1997
and 8
also
intent,
would
as
extrinsic evidence
we
Report
at 1.
and Recommendation
contrary,
held
did. On the
we
have
as we
that, on
It is “axiomatic”
remand
that
the
Certification
determined
proceedings,
the “trial court must
further
ambiguous and that extrinsic evidence
was
proceed in
the mandate and
accordance with
meaning
necessary
determine its
inso-
appeal.”
of
as
on
law
case
established
Long
Agreement
Term
between
far as
Corp.,
Bankers
Co. v. Bethlehem Steel
Trust
De-
аnd PCUA was concerned.
Chambers
(3d Cir.1985).
holding,
court ruled
spite
district
prohibit
our
does not
mandate
[Dewling]
of
the “four corners
certi-
considering
court
new issues raised af
from
fication,”
clear as to bar Chambers’
were so
consider,
“may
A
ter remand.
district court
of
claim a matter
of contract
as
law.
breach
first impression,
as matter of
thbse issues
contrary to
holding
clearly
is so
our
That
expressly
implicitly disposed
byof
or
very little
discussion is
mandate that
further
appellate decision.” Id. at 950. Therefore
situation,
Thus, in the usual
required.
the district court was “free to make
analysis having
end our
concluded that
could
progress
order or direction
further
of the
ignored
the letter and
the district court
both
case,
...
not 'inconsistent with
decision
[our]
spirit of our mandate.
-any question
toas
not settled
the deci
however,
situation,
not,
is
This
the usual
judicial
sion” on
Id. The
of
remand.
doctrine
properly
if
go
and we
further we are to
must
estoppel
only
after our remand.
asserted
in this
The district
align the facts
“cube.”
Nevertheless,
argues that the dis
Chambers
the breach of contract action
court dismissed
ruling
judicial estoppel
trict
on
court’s
theory
judicial estoppel.
on the alternative
of
inconsistent with our mandatе
that We
fact,
Report and Recommendation
can therefore address the merits
that deci
adopted relied
that the district court
almost
jurisdiction.
sion under our mandamus
justify
exclusively upon that doctrine to
Br. at
relies
30-32. Chambers
magistrate
One. The
dismissal of Count
upon
following
language
judge stated:
I:
judi-
asserting
PCUA correct
requires
estoppel
cial
dismissal
Count
signifi-
attaches
some
concurrence
Complaint
the Amended
on
One
Em-
approval
cance to DEP’s
(cid:127)
assertion in
grounds other than Chambers’
pire
approval
This
had
contract.
no effect
Jersey
New
state court that solid waste
Authority’s obligations
under the
require
public bidding.
contracts
ap-
long-term contract. DEP’s
of this
To avoid dismissal
transfer
mat-
Empire
proval
signifies
of.the
ter,
represented to the Court
Empire
that the
contract conforms to
seeking interpretation
that was not
Jersey
disposal plan.
the New
waste
Dewling’s 1987 certification
Commissioner
Chambers,
contrast,
13. In
62 F.3d
588 n.
Agreement
and contin-
Short-Term
adopted
following
state-
the district
Agree-
LongTerm
gent approval of
magistrate judge:
ment
ment
a manner
would obstruct
despite
party
For
to tell a
a Court
determining
NJDEPE from
where Passaic
Empire
approval
Agree-
real
world
County’s
go in the 1992-
solid waste should
the NJDEPE is
ment
the NJDEPE
period.
the Amended
Count One of
judicially
approved
deemed
have
Cham-
exactly
Complaint asks
that. Chambers
validity
with the
representa-
bers interferes
should be held bound
every
as
tions,
operations of the
bit
NJDEPE
the Court should dismiss Count
relief,
injunctive
since it essential-
much
Complaint.
of Amended
One
*12
juris-
appellate
ing
mandamus and
ly
authorities that
between
tells the solid waste
diction, we have said:
unless
NJDEPE certification is worthless
appellate
practical
difference between
approved
the court.
jurisdiction is
jurisdiction and mandamus
1996,
11,
Report and Recommen-
December
standard of
of review. Our
the standard
dation,
argues
at 8 n. 8. Chambers now
jurisdiction is ex-
under mandamus
review
with our con-
this statement
is inconsistent
narrow;
review
ceedingly
our standard of
claim does
clusion that its breach
jurisdiction
depend-
appellate
varies
under
approval of
not interfere with NJDEPE’s
upon to
ing
the issue that we are called
However,
PCUA-Empire
we can
contract.
jurisdic-
Accordingly, mandamus
review.
argument unless it
not address Chambers’
oppor-
appellate court less
tion affords an
jurisdiction.
within our mandamus
comes
tunity
court error
to correct district
opрortunity
pro-
case before it and less
Moreover,
A.
guidance
vide
for future cases.
Comity
appellate
between the district and
jurisdiction to review the
Our
courts is best served
resort to manda-
propriety
grant
court’s
of sum
only in limited circumstances. Re-
mus
mary judgment
petition
on a
for a writ of
jurisdiction
appellate
is there-
view under
question.
mandamus is
difficult
Since
preferable
fore
to review under mandamus
summary
granted
judgment
on Count
jurisdiction.
complaint,
One of Chambers’ amended
Count
(3d
Co.,
954, 964
In re Ford Motor
110 F.3d
(breach
good
dealing)
Two
faith and fair
Cir.1997) (citation omitted). Thus, manda
power,
appellate
Mandamus is an
remains.
appeal
and a writ
mus is not a substitute
“realistically
interlocutory
that is
a form of
granted
of mandamus will not be
if relief can
States,
appeal,” Martin v. United
96 F.3d
by way
jurisdic
appellate
be obtained
of our
(7th Cir.1996).
853,
However, it is “dif
854
tion.
Id. at 957. Mandamus is “disfavored
appeal.”
from an
Madden v.
ferent
kind
because
threaten the
its broad use would
(3d Cir.1996).
74,
Myers,
77
102 F.3d
Man
[congressional] policy against piecemeal ap
procedural
damus “constitutes a
mechanism peals.”
Litigation,
In re School Asbestos
977
through
appeals
(3d
which a court of
reviews
764,
Cir.1992)(citing
F.2d
772
Kerr v.
carefully
category
Court,
394,
circumscribed and discrete
United States District
426 U.S.
(1976)).9
403,
2119,
distinguish-
of district court orders.” Id. In
96
48
S.Ct.
L.Ed.2d 725
example, discovery
generally
disputed
9. For
orders are
context of a review of a claim that
194,
Corp.,
requiring pro-
appealable,
documents contained trade secrets
Smith v. BIC
869 F.2d
tection);
Inc.,
(3d
Therefore,
Cir.1989).
Cipollone
Group,
Liggett
v.
822
mandamus is the
198
335,
(3d Cir.1987) (discussing
F.2d
jurisdictional
340
manda-
appropriate
vehicle to review dis
jurisdiction
protective
mus
review of a
over
or-
of documents
when
closure
information
der).
privilege is asserted. See Rhone-Poulenc Rorer
Co.,
851,
(3d
Indemnity
v. Home
32 F.3d
861
Inc.
jurisdiction
We have exercised mandamus
over
Cir.1994) (discussing privilege or other interests
(cid:127)
privilege
product
and work
issues
because
Inc.,
confidentiality);
Group,
Liggett
Haines v.
"appealing
have found that
[those] issues after
81,
(3d Cir.1992) (discussing
975 F.2d
89
attor
ineffective,"
judgment
final
Co.,
In re Ford Motor
ney-client privilege
product
and work
doctrine
962,
simple
110
F.3d
for the
and obvious
protections); Westinghouse
Corp. Repub
Elec.
v.
"compliance
production
reason that
with the
or-
(3d
Philippines,
lic
951 F.2d
1422
destroys
right sought
protect-
ders ...
to be
Peil,
Cir.1991)(same); Sporck v.
759 F.2d
Bogosian,
ed.”
To avoid dismissal or transfer of mat- ter, B. represented to the Court sеeking interpretation that it was not estoppel, Judicial sometimes Dewling’s-1987 certification Commissioner against called the doctrine the assertion of Agreement and contin- of the ShorL-Term positions, judge-made is a doc inconsistent gent approval Long-Term Agree- of the prevent litigant from trine that seeks to ment in a that would obstruct manner asserting position inconsistent with one determining from where NJDEPE Passaic previously asserted she in the County’s go solid waste should 1992- previous proceeding. It in a same or period. 2002 the Amended Count One of all inconsisten not intended eliminate Complaint exactly asks that. Chambers cies, inadvertent; rather, slight or however by representa- held should bound its be. designed prevent litigants it is tions, and Court should dismiss Count playing and with the fast loose courts. Complaint. One of the Amended Operations, Ryan G.P. v. Santiam-Midwest (3d Cir.1996) 11, Co., 355, Report 358 and Recommen- Lumber 81 F.3d December 1996 omitted).13 (citations problems There two with the quotations internal dation at 8. are G.P., grant Ryan Operations, one member of the Our review district court’s 13. 12. is, question panel apparently, a summary judgment plenary. Borough noted that there Mark v. Hatboro, Cir.), (3d judicial estoppel as to whether state law feder- 51 F.3d 1141 cert. denied, judicial estoppel applies diversity law in a S.Ct. 133 L.Ed.2d al 516 U.S. 116 Here, (1995). magistrate judge’s Report our action. We note that standard review Jersey general policy New Recommendation recites here does not contravene judicial estoppel appropriate jurisdictional rules are consis- is not the the federal mandamus Report and tent. December mendation, ‘1996 Recom- method to review district decision based 4. nor States at 5 n. Neither Chambers on the exercise of discretion. United 1981). Christian, ruling. disputes at 359 n. 2. PCUA 660 F.2d Cir. . executed, First, As the Chambers judge’s on the magistrate conclusion. level, all Passaic procedural obligated there to deliver purely technical and PCUA intentionally land- findings County are that Chambers waste to the Chambers no solid “play misrepresented position years so as to fast final ten Contract fills for the with the court.” For that reason loose was construct- in the event no incinerator alone, grant summary judgment to PCUA ed. improper we assume that such unless constructed. 44. No incinerator was findings implicit ruling. are the court’s Dewling Certification amounted 45. The judice, under the facts sub such partial approval of the Chambers Con- to a because, finding clearly erroneous would be tract, dеsignated that Chambers was such discuss, supported by it is not as we will disposal out-of-state facili- as the exclusive Second, importantly, record. and more County during ty for solid waste Passaic to, position response is in Chambers’ Contract, years the final ten with, totally consistent our mandate replaced by in- could be a suitable I. facility. disposal state posi- dispute over the “inconsistent” impli- parties expressly 46. The by can traced to a motion filed and/or
tions Dewling’s edly assented to Commissioner sought PCUA which PCUA modifications. complaint. dismiss first PCUA Chambers’ alia, argued, failure to inter 47. As modified Certifica- join indispensable party NJDEPE as an un- parties’ express together tion with the its claim. der 19 was fatal to Fed.R.Civ.P. assent, implied the Chambers Con- and/or responded that was not NJDEPE tract'obligated to utilize Chambers party indispensable because Chambers out-of-state facili- as the exclusive seeking rejection was not or modification ty for Passaic solid waste for the NJDEPE decision nor was Chambers years final ten of the Contract. seeking to affect NJDEPE’s interest Furthermore, as modified *16 management of its solid waste administration Dewling together with the Certification system. planning agreed The district court assent, parties’ express implied and/or Chambers, found that not with NJDEPE was obligated contract to re- Chambers PCUA indispensable party, an and dismissed entering any frain from into substitute dis- motion. PCUA’s posal any facility with contracts located argues again PCUA that Chambers once Jersey. outside of New magistrate judge it not assured the that was 49. In breach of these contractual obli- trying second-guess asking to NJDEPE' gations, PCUA entered into a substitute regu- the court to interfere with NJDEPE’s disposal Empire, pursuant with to latory jurisdiction when Chambers filed its agreed dispose PCUA of Passaic which seeking injunctive complaint relief based County facility solid waste at landfill upon alleged anticipatory PCUA’s breach. Taylor, Pennsylvania, peri- located in for a argues that PCUA Count One amend- 1, commencing od of time December remand, complaint, specifically ed filed after 2002, through beyond year the final Dewling interpret the court to asked the Chambers Contract. and, by doing, Certification so asked the Starting district court to interfere NJDEPE’s in and around December regulatory began performing function. The district PCUA under the Contract, agreed Empire Count One. accordingly dismissed ceased disposing County of Passaic solid waste at However, implicate One does not Count required by the Chambers landfills as regulatory authority. NJDEPE’s The rele- Chambers Contract. portion One' of vant of Count the amended complaint provides as follows: perform continues to PCUA under valid, Contract, Empire upon
42.The Contract was a informa- Chambers belief, binding per- contract when executed. tion and no intention of has required if obligations approval obligations set any of the forming under following af- obtained. We stated the never under the Chambers Contract. forth noting conditional of Commis- ter nature a complete actions constitute 52. These Dewling’s sioner Certification: Contract, in that the Chambers breach of re- they- in and continue to have resulted- first con- Chambers contends DEP’s complete abrogation of plan PCUA’s tingent approval sult in a made them duty dispose all Passaic facility to Chambers disposal the exclusive out-of-state _ County waste, waste at Chambers land- subject only solid for Passaic year unless and until fills until development alterna- of. in-state ____ facility in-state PCUA identifies suitable tives Dewling Certification. directed Authority Conversely, the maintains breach of the Chambers Con- 53. PCUA’s plan contingent approval DEP’s caused and continues cause tract has replace it to permitted Cham- amendment Chambers, signifiсant harm to economic disposal bers with alternatives. waste profits including lost from the Chambers I, then at 585. We ob- Chambers 62-F.3d Contract, profits as well as lost associated that the district court considered “the served other entities with contracts with plan contingent approval DEP’s sufficient to foregone in the reasonable Chambers justify enforcing the Chambers contract utilizing the PCUA intended on belief that DEP the absence of of some other approval airspace set aside Passaic substantial plan.” faulted the Id. at 5861 years ten County solid waste the final resolving effect district court for Contract. Dewling upon the 1987 Certification App. Petitioner’s at 10-12. Long Agreement Term between Chambers Thus, and PCUA. of the averments is the essence required PCUA court, however, specifi- Certification did resolve disposal facility by 1992
identify in-state original cally approval DEP’s whether contingent approved it as a the exclusive out-of- 1987 made Chambers PCUA failed to iden- alternative the event disposal company state waste for Passaic tify facility. complaint avers an in-state County waste after December obligated use Chambers develop PCUA should fail to in-state waste n Ac- as its exclusive out-of-state site. Nor disposal facilities. did address cordingly, asserts that PCUA the'Authority could DEP whether seek'a into a its contract when it entered authorizing breached use it to an alternative Empire for waste contract with out-of-state disposal facility out-of-state waste without *17 disposal. violating its contract with Chambers. specific with in- theory recovery simply Id. We then remanded
This does doing forth In so we regulatory NJDEPE’s func- structions set above. interfere with privilege specifically allowed “the asking specific is not tions. Chambers complaint to ... amend its to enable it performance of its contract with PCUA ., present in its current status.” Id asking the district court declare the case it is not hoped doing PCUA-Empire 589. We had so would contract void or voidable: proper adjudication succinctly of-this dis- states: “Chambers result However, against pute. what has followed damages PCUA for seeks contract Empire the matter further. Chambers ex- bringing substitution” confused [the] about privilege extended in our man- Br. at 27. There ercised the for Chambers. Petitioner’s complaint. doing so inconsistency pre-remand date and amended no in Chambers’ Moreover, attempt to have nothing . we did more than post-remand positions. it There, saga continu- resolve the of this I. district court much in Chambers stated as ruling though parties ing dispute by on the effect contract pointed that even out Dewling on Certification apparently understood had. NJDEPE, Long Agreement. rath- Term approval of subject to the and rule specify rights comply the mandate their er than party saw fit neither upon the issues raised in the (he FITZGERALD, Appellant complaint, amended district court inter- Kathleen preted playing Chambers’ amendments applied “fast and loose” with the court and Kenneth APFEL* Commissioner judicial S.
the doctrine of That was estoppel. Security clearly Social error. position take no on of the We the merits No. 97-1605. claim Chambers raises Count One of its Appeals, United States Court complaint. merely amended Count One re- Third Circuit. quires the district court to determine the parties’ understanding impact Argued March Long Certification on the Term Decided June Agreement. precisely That is what we had mandate, issuing ordered in our and it is
precisely what the district court would have complied
done had it with that mandate.
V.
Accordingly, grant peti- we will mandamus,
tion for a writ of vacate the granting summary court’s
judgment to Count One Cham- complaint;
bers’ amended and we will re- again, pro-
mand the case once for further
ceedings opinion. consistent with this
STAPLETON, concurring: Judge, Circuit agree
I with the court that the district disposition
court’s of Count One Complaint
Amended is inconsistent with the
prior mandate of this court and that support finding
record does that Cham “played
bers has fast and loose” with the Ryan Operations,
court. G.P. v. Santiam- Co.,
Midwest Lumber 81 F.3d
Cir.1996). join opinion I of the court to
the extent it is not inconsistent with the expressed my prior concurring opin
views Development Company,
ion. Chambers Inc. Authority,
v. Passaic Utilities *18 Cir.1995). * Procedure, Apfel Appellate Apfel Kenneth S. was sworn in as Commissioner Kenneth S. is substi- Security September of Social 1997. Pur- tuted J. for John Callahan as the defendant in 43(c)(1) suant to Rule of the Federal Rules of this suit.