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1
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ACLU MEMO IN SUPPORT
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EXTRACTED KEY WORDS
DEFENDANTS PLAINTIFFS PERMIT EXERCISE WEST MIFFLIN OCCUPANCY COMPLAINT LAND COURT PRELIMINARY INJUNCTION MUNICIPALITY EXERCISE CLAUSE SUBSTANTIAL BURDENS MEMBERS PURCHASE OCCUPY GRACE CHRISTIAN GOVERNMENT RLUIPA PENNSYLVANIA TEMPORARY RESTRAINING ORDER FIRST AMENDMENT IRREPARABLE INJURY DENY SECOND REGULATIONS PRELIMINARY INJUNCTIVE RELIEF COTTONWOOD CHRISTIAN STRICT SCRUTINY FREEDOM BAPTIST CHURCH |
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THE SECOND BAPTIST CHURCH OF )
HOMESTEAD, INC., et al. )
)
Plaintiffs, )
)
v. ) Civil Action No. _______
)
BOROUGH OF WEST MIFFLIN, et al., )
)
Defendants. )
MEMORANDUM IN SUPPORT OF THE ISSUANCE OF A
TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION
I. INTRODUCTORY STATEMENT
Plaintiffs are The Second Baptist Church of Homestead,
Inc. (hereinafter referred to as "Second Baptist"), a
predominantly African-American Baptist congregation,1 and
several church members. Plaintiffs challenge the decision of
the Defendants, Borough of West Mifflin and a West Mifflin
municipal zoning official, to deny Second Baptist an occupancy
permit that would allow it to purchase, occupy and use an
existing church in the Borough as a church. Plaintiffs base
their request for a temporary restraining order and/or a
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2
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BIBB DECLARATION
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EXTRACTED KEY WORDS
DELIVERING POWER BAR LLP SAN BERLIN CALIFORNIA BEACH LLC AES DECLARATION SETTLEMENT AGREEMENT AIR DISTRICT INQUIRY IS0 COMPLAINT CREDITS AES SHUTDOWN MATTER NOX EMISSION CREDITS ISO AIR POLLUTION CONTROL SAN DIEGO COUNTY VARIANCE SUFFICIENT CREDITS PLANTS APCD LETTER FOREGOING |
w
1 Norma G. Formanek (CA Bar No. 111474)
Laura C. Roche (CA Bar No. 174596)
2 FARELLA BRAUN & MARTEL LLP
Russ Building, 30th Floor
3 235 Montgomery Street
San Francisco, CA 94104
4 Telephone: (415) 954-4400
Facsimile: (4 15) 954-4480
5 Edward Berlin
6 John R. Ferguson
Timothy A. Ngau
7 SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
3000 I< Street, N.W.
8 Washington, DC 20007 Cl Vb', !, j
Telephone: (202) 424-7500 `."
/ YE-L
1-1 I
9 Facsimile: (202) 424-7643 .--.---
10 [Appearing Pro Hat Vice]
11 Attorneys for Plaintiff
CALIFORNIA INDEPENDENT SYSTEM
12 OPERATOR CORPORATION
13 UNITED STATES DISTRICT COURT
14 FOR THE EASTERN DISTRICT OF CALIFORNIA
15 SACRAMENTO DIVISION
16 .f?!!Ks- 0 1 - 0 2 3 8 FCD
17
CALIFORNIA INDEPENDENT SYSTEM Civil No.
18 OPERATOR CORPORATION,
19 Plaintiff, DECLARATION OF TRACY BIBB
20 vs. SUPPORT OF EX PARTE
APPLICATION FOR TEMPORARY
21 WILLIAMS ENERGY MARKETING AND RESTRAINING ORDER AND ORDER
TRADING CO., AES PLACERITA, INC., AES TO SHOW CAUSE
22 ALAMITOS, LLC, AES HUNTINGTON
BEACH LLC, AES REDONDO BEACH LLC,
23 AND DYNEGY POWER CORP.,
24 Defendants.
25
26
27
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3
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AMICUS BRIEF
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EXTRACTED KEY WORDS
FAIR HOUSING COURT DAUBERT DEFENDANT UNITED STATES PLAINTIFFS DISCRIMINATION EXPERT TESTIMONY RACE ENFORCEMENT FAIR HOUSING ACT FACT EVIDENCE EXCLUDE TESTERS REAL ESTATE HOUSING PROVIDERS HOUSING TESTING PROGRAM DISTRICT COURT METROPOLITAN ENFORCEMENT RESPONSIBILITIES VIOLATION METHODOLOGY ADMISSIBILITY TREATMENT FAIR HOUSING LAWS HOUSING OPPORTUNITY GUNDAKER REAL ESTATE LITIGATION NATIONWIDE FAIR HOUSING |
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
METROPOLITAN ST. LOUIS EQUAL
HOUSING OPPORTUNITY
COUNCIL, et al.
Plaintiffs,
v.
Cause No. 4:98CV00837 SNL
GORDON A. GUNDAKER REAL ESTATE
CO., INC.
Defendant.
______________________________________
BRIEF OF THE UNITED STATES AS AMICUS CURIAE OPPOSED TO THE
APPLICATION OF DAUBERT TO FAIR HOUSING TESTING EVIDENCE
I. INTEREST OF THE UNITED STATES
The Fair Housing Act prohibits housing providers and others from
making housing unavailable or otherwise discriminating on the basis of
race, color, national origin, religion, sex, handicap and familial
status. The United States, through litigation by the Attorney General
and administrative enforcement by the Department of Housing and Urban
Development, has important enforcement responsibilities under the Act,
42 U.S.C. §§ 3610, 3612 and 3614. As part of its enforcement
responsibilities, the United States administers a nationwide fair
housing testing program and has filed 60 cases alleging violations of
the Fair Housing Act based on testing evidence developed through this
program. Accordingly, the United States has a substantial interest in
ensuring that the question of whether Daubert v. Merrill Dow
Pharmaceuticals, 509 U.S. 579 (1993), applies to fair housing testing
evidence is appropriately decided.
II. BACKGROUND
Plaintiffs, the Metropolitan St. Louis Equal Housing Opportunity
Council (EHOC) and the City of Florissant, filed this lawsuit on May
14, 1998 alleging that Defendant Gordan A. Gundaker Real Estate
steered homeseekers on the basis of their race in violation of the
Fair Housing Act, 42 U.S.C. § 3601 et. Seq. The Plaintiffs rely on
evidence gathered through EHOC's fair housing testing program to show
that the Defendant engaged in unlawful discrimination. Defendant filed
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4
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MODIFIED FINAL JUDGMENT
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EXTRACTED KEY WORDS
UNITED STATES WASTE JUDGEMENT RELEVANT DISPOSAL ASSETS COURT PURCHASER PLAINTIFFS LANDFILL RELEVANT HAULING ASSETS TRANSFER STATION ATTORNEY DIVESTITURE FLORIDA PROVISIONS TRUSTEE DISPOSAL RIGHTS AGREEMENT TIME PERIOD FEL COMMERCIAL ROUTES WASHINGTON APPROVALS ACCOMPLISH COMMONWEALTH PENNSYLVANIA WASTE MANAGEMENT DETROIT RESOURCE RECOVERY PRIOR AIR SPACE CONSULTATION PROPOSED DIVESTITURE |
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
__________________________________________)
UNITED STATES OF AMERICA; )
STATE OF OHIO; )
STATE OF ARIZONA; )
STATE OF CALIFORNIA; )
STATE OF COLORADO; )
STATE OF FLORIDA; )
COMMONWEALTH OF KENTUCKY; )
STATE OF MARYLAND; )
STATE OF MICHIGAN; )
STATE OF NEW YORK; ) Civil No.: 1:98 CV 1616
COMMONWEALTH OF PENNSYLVANIA; )
STATE OF TEXAS; )
STATE OF WASHINGTON; and )
STATE OF WISCONSIN, ))
Plaintiffs, ) Filed:
)
v. ))
USA WASTE SERVICES, INC.; )
DOME MERGER SUBSIDIARY; and )
WASTE MANAGEMENT, INC., ))
Defendants. )
__________________________________________)
MODIFIED FINAL JUDGMENT
WHEREAS, plaintiffs, the United States of America, the State of Ohio, the State of
Arizona, the State of California, the State of Colorado, the State of Florida, the Commonwealth
of Kentucky, the State of Maryland, the State of Michigan, the State of New York, the
Commonwealth of Pennsylvania, the State of Texas, the State of Washington, and the State of
Wisconsin, and defendants USA Waste Services, Inc. ("USA Waste") and Waste Management,
Inc. ("WMI"), by their respective attorneys, having consented to the entry of this Final Judgment
without trial or adjudication of any issue of fact or law herein, and without this Final Judgment
constituting any evidence against or an admission by any party with respect to any issue of law or
fact herein;
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6
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PETITIONERSBRIEF
|
EXTRACTED KEY WORDS
CITY PETITIONERS LAW ANIMALS HIALEAH SMITH FLORIDA EXERCISE ORDINANCES RELIGION RESTRICTING CHURCH APPEALS AMP KILLING UNITED STATES EMPLOYMENT DIVISION SLAUGHTER DISCRIMINATORY DISTRICT COURT PROHIBITION LUKUMI BABALU AYE CONSTITUTION STANDARDS SACRIFICED ANIMALS FREE EXERCISE AMERICAN CIVIL LIBERTIES CIVIL LIBERTIES UNION PRIMARY PURPOSE |
CHURCH OF THE LUKUMI BABALU AYE, INC CHURCH OF THE LUKUMI BABALU AYE, INC., and Ernesto PICHARDO, Petitioners, v. CITY OF HIALEAH, Respondent. No. 91-948. United States Supreme Court Petitioner's Brief. October Term, 1991. May 22, 1992. PETITIONER'S BRIEF, U.S.S.CT.ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT PETITIONERS' BRIEF Steven R. Shapiro American Civil Liberties Union Foundation 132 West 43 Street New York, New York 10036 (212) 944-9800 Jorge A. Duarte 44 West Flagler Street Miami, Florida 33130 (305) 358-2400 Mitchell Horwich Horwich & Zager, P.A. 1541 Sunset DriveSNIPPETS: |
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7
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STIPULATION AND ORDER
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EXTRACTED KEY WORDS
JUDGEMENT STIPULATION PARTIES ENTRY DEFENDANTS UNITED STATES DISTRICT PROVISIONS FLORIDA PARTY DIVESTITURE JUDGEMENT MIDDLE DISTRICT JACKSONVILLE HERETO MOTION COMPLIANCE WITHDRAWN CONSENT APPEALS COURT RULING DECLINING COMPLAINT SEPARATE STIPULATION EQUAL FORCE WRITING PARAGRAPH ENTERED PURSUANT ORDERED CONTINUED COMPLIANCE OBLIGATIONS |
HANDWRITTEN REVISIONS
BY JUDGE NOTED BELOW.
ADDITIONS AS
DELETIONS AS STRIKETHROUGH
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
__________________________________________)
UNITED STATES OF AMERICA, ))
Plaintiff, ) Civil No.: 99-516-Civ-J-20A
)
v. ))
FLORIDA ROCK INDUSTRIES, INC.; ) Filed:
HARPER BROS., INC.; )
COMMERCIAL TESTING, INC.; and )
DANIEL R. HARPER, ))
Defendants. )
__________________________________________)
STIPULATION AND ORDER
It is stipulated by and between the undersigned parties, by
their respective attorneys, as follows:
1. The Court has jurisdiction over the subject matter of
this action and over each of the parties hereto, and venue of
this action is proper in the United States District Court for the
Middle District of Florida.
2. The parties stipulate that a Final Judgment in the form
hereto attached may be filed and entered by the Court, upon the
motion of any party or upon the Court's own motion, at any time
after compliance with the requirements of the Antitrust
Procedures and Penalties Act (15 U.S.C. § 16), and without
further notice to any party or other proceedings, provided that
the United States has not withdrawn its consent, which it may do
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8
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RESPONSE TO PUBLIC COMMENTS-9
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EXTRACTED KEY WORDS
NEKBOH WASTE PERMIT JUDGEMENT YORK YORK CITY DIVEST DEFENDANTS PUBLIC PARK COMPETITION BROOKLYN OPERATING PERMIT ASSESSMENT PRECLUDE UNITED STATES OHIO WASTE MANAGEMENT ENTRY COMMERCIAL WASTE PURCHASER FACILITY PRESERVATION ACT CLEAN WATER/CLEAN AIR WATER/CLEAN AIR BOND PATAKI VETOED LEGISLATION PROVIDED FUNDS STATE DEPARTMENT ENVIRONMENTAL CONSERVATION |
City Center Building
1401 H Street, NW
Washington, DC 20530
September 13, 1999
Ms. Rosalind Rowen
Sierra Club New York City Group
c/o 225 East 6 Street - Suite 3H
th
New York, New York 10003
Re: Comment on Proposed Final Judgment in United States, State of Ohio, et al. v. USA
Waste Services, Inc., Waste Management, Inc., et al., Civil No. 98-1616 (N.D. Ohio,
filed July 16, 1998)
Dear Ms. Rowen:
Thank you for your letter commenting on the Final Judgment submitted for entry in the above
case. The Complaint in this case charged, among other things, that USA Waste's acquisition of
Waste Management would substantially lessen competition in the disposal of New York City's
commercial waste. The proposed Judgment would settle the competitive concerns with respect to
the New York City market by, inter alia, requiring the defendants to divest (a) the USA Waste's
SPM Transfer Station; (b) USA Waste's All City Transfer Station; and (c) the pending application by
USA Waste for a permit to construct and operate the Nekboh Transfer Station, also in Brooklyn, NY.
See Judgment, §§ II (C)(2) (i)(1)-(3) and IV(A). To ensure the defendants' continued cooperation
with the purchaser in its efforts to get the Nekboh site permitted, the proposed Judgment further
provides that if the Nekboh Transfer Station does not receive an operating permit within one year
after entry of the Judgment, the defendants must divest the Scott Avenue Transfer Station, also in
Brooklyn, NY. See Judgment, §§ II (C)(2)(i)(4) and IV(B). In a transaction approved by the United
States in August 1998, under the terms of the decree, the defendants divested All City Waste
Transfer Station and their application for a permit for the proposed Nekboh site to Republic
Inc., which previously did not operate any waste disposal sites in the New York City area.
Your comment relates solely to those portions of the Judgment that require USA Waste to
divest all title and interest in its application to construct and operate the Nekboh transfer
Brooklyn, New York. See Judgment, §§ II (C)(1)(i)(2) and IV(A) and (B). As you point out, the site
of the proposed Nekboh facility abuts an area that the state of New York recently identified for
potential preservation under its Clean Water/Clean Air Bond Act. Though Governor Pataki vetoed
legislation that would have provided funds for purchasing the site for development as a park, he
instructed the state Department of Environmental Conservation to conduct an environmental
assessment of the Nekboh site before issuing an operating permit for a transfer station on that
You requested that we modify the Judgment to permit the Nekboh site to be sold to the state
for development as a public park. We strongly believe that prompt divestiture of the Nekboh permit
application, and speedy permitting, construction and opening of a transfer station on the Nekboh
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9
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RESPONSE TO PUBLIC COMMENTS-5
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EXTRACTED KEY WORDS
WASTE LOS ANGELES DISPOSE DEFENDANTS COMMERCIAL WASTE CITY MARKET COMPETITION UNITED STATES GOLD FIELDS LOS ANGELES AREA WASTE MANAGEMENT ACQUISITION DIVEST RELEVANT GEOGRAPHIC MARKET FIRMS DISTANT TIPPING FEES DELIVERED COSTS JUDGEMENT TRANSACTION COMPETITIVE ANALYSIS OHIO CLIENT REQUIRING CHIQUITA CANYON LANDFILL MILES MERGER DISPOSAL CAPACITY |
City Center Building
1401 H Street, NW
Washington, DC 20530
September 13, 1999
Joseph Kattan, Esquire
Michael F. Flanagan, Esquire
Gibson, Dunn & Crutcher
1050 Connecticut Avenue, NW
Washington, DC 20036-5306
Re: Comment on Proposed Final Judgment in United States, State of Ohio, et al. v. USA
Waste Services, Inc., Waste Management, Inc., et al., Civil No. 98-1616 (N.D. Ohio,
filed July 16, 1998)
Dear Messrs. Kattan and Flanagan:
This letter responds to your letter, submitted on behalf of your client, Gold Fields Mining
Corporation ("Gold Fields"), commenting on the proposed Final Judgment in the above case. The
Complaint in that case charged, among other things, that USA Waste's acquisition of Waste
Management would substantially lessen competition in the disposal of commercial waste from
portions of the City of Los Angeles. The proposed Judgment would settle the case by, inter alia,
requiring the defendants to divest Chiquita Canyon Landfill, a large USA Waste landfill located
about 40 miles northeast of the City of Los Angeles. In a transaction approved by the United States
in August 1998, under the terms of the decree, the defendants divested that landfill to Republic
Services, Inc., which previously did not operate any landfills in the greater Los Angeles area.
Your client, Gold Fields, together with Union Pacific Railroad Company and defendant USA
Waste, own Mesquite Regional Landfill. Gold Fields is very concerned that the proposed
divestiture of defendants' Chiquita Canyon Landfill does not go far enough to prevent the defendants
from exercising market power after the acquisition. Specifically, Gold Fields is concerned that
following the merger, the defendants will attempt to reduce the disposal capacity available to the
Angeles market by using its ownership interest in Mesquite Regional to prevent this large new
landfill from aggressively competing for commercial waste from the city.
In our view, the relevant geographic market for analyzing the competitive effects of the USA
Waste's acquisition of Waste Management does not include Mesquite Regional Landfill. In defining
the relevant geographic market for the disposal of Los Angeles's commercial waste, the United
States took into account the extent to which each of the private and public landfills in Southern
California could compete for the disposal of commercial waste that originates in the city of Los
Angeles. In the course of its competitive analysis, the United States excluded some firms from its
relevant geographic market because their landfills were legally prohibited from accepting any
municipal solid waste from the city of Los Angeles (e.g., most of the LA County landfills). The
United States excluded other disposal facilities (e.g., Mesquite Regional) because of their
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10
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COMMENTS ON PROPOSED FINAL JUDGMENT-1
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EXTRACTED KEY WORDS
JUDGEMENT WASTE MANAGEMENT LANDFILL KINGSTON PROPOSED MERGER MAGNUSON OHIO ENTRY CITY LANDFILL RELIEF DECREE ALLEGE GOVERNMENTS COMPLAINT PRIVATE COMPETITIVE PROBLEMS MANCHESTER PRIVATE CONTRACTUAL DISPUTE DEFENDANTS BEARS COMPETITIVE MERITS SIGNIFICANT COMPETITIVE PROBLEMS PRIVATE ACTION ATTENTION PURSUANT ANTITRUST PROCEDURES PENALTIES ACT RESPONSE FEDERAL REGISTER DECREE COURT |
City Center Building
1401 H Street, NW
Washington, DC 20530
September 13, 1999
Mr. Conrad S. Magnuson
261 Route 125
Kingston, NH 03848
Re: Comment on Proposed Final Judgment in United States, State of Ohio, et al. v. USA
Waste Services, Inc., Waste Management, Inc., et al., Civil No. 98-1616 (N.D. Ohio,
filed July 16, 1998)
Dear Mr. Magnuson:
Thank you for your letter commenting on the proposed Final Judgment submitted for entry in
the above case. Your letter indicates that you are a caretaker for a city landfill in Kingston,
that Waste Management, Inc. recently acquired two local haulers, SDW and Astro, who account for
much of the volume of waste delivered to the city landfill. Waste Management, however, has
assured you that its acquisitions will not affect the amount of waste it delivers to the Kingston
landfill since the company's own landfill in Rochester, NH, is full. (You have promised to let us
know whether Waste Management later reneges on this commitment.)
In deciding whether entry of the proposed Final Judgment would be in the public interest, the
Court's principal task is to determine whether the relief contained in the proposed decree
addresses the competitive concerns alleged in the governments' Complaint. By this standard, we
find it very difficult to see how your private contractual dispute with the defendants bears on the
competitive merits of the proposed Judgment. The governments' Complaint does not allege that the
proposed merger would create any competitive problems in the Manchester, NH area, nor does the
proposed Judgment contain any relief concerning the Manchester area. If you believe that the merger
would create significant competitive problems in that area, then you are free to file a private
against the proposed merger.
Thank you for bringing your concerns to our attention. Pursuant to the Antitrust Procedures
and Penalties Act, 15 U.S.C. §16(d), a copy of your comment and this response will be published in
the Federal Register and filed with the decree court.
Sincerely yours,
/s/
J. Robert Kramer II
Chief
Litigation II Section
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