The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
On September 13, 1984, the plaintiff filed this action against the defendant for injunctive relief and civil penalties for alleged violations of the Clean Water Act, 33 U.S.C. § 1311 et seq. Specifically, the plaintiff alleged that the defendant was violating the terms and provisions of its National Pollutant Discharge Elimination System Permit issued for the defendant's municipal sewage treatment plant, the Blue Plains Wastewater Treatment Plant (Blue Plains), pursuant to Section 301 of the Clean Water Act, by failing to comply with the terms and conditions of the permit. In December of the same year, the plaintiff filed a motion for entry of a consent decree entered into between the parties. On January 31, 1985, the Court approved and signed the Consent Decree which consisted of 24 pages and 19 numbered paragraphs.
Paragraph XIX of the Consent Decree provides:
Termination of court jurisdiction
By agreement of the parties there were subsequent amendments to the Consent Decree but paragraph XIX was never amended. On or about January 13, 1989, the plaintiff filed a motion to enforce judgment and to adjudicate the defendant in civil contempt. In that motion the plaintiff alleged that the defendant had violated numerous provisions of the Consent Decree. The defendant opposes the motion primarily on two grounds, first, that the Court lacks jurisdiction since the Consent Decree expired pursuant to paragraph XIX on January 31, 1989, notwithstanding that the Government's motion to enforce judgment and to adjudicate the defendant in civil contempt was filed prior to that date, and second, that on the merits, the defendant has not violated the Consent Decree and that any "violations" are de minimis.
On or about July 17, 1990, the plaintiff amended its motion to delete from that motion the request that the Consent Decree entered in this action on January 31, 1985 be extended to govern operation Blue Plains after January 31, 1989. The United States, however, continues to seek all other relief requested in the motion, including an order by this Court retaining jurisdiction to enforce the Consent Decree pending resolution of the United States' motion to enforce judgment and to adjudicate the defendant in civil contempt. The United States noted that the affect of their amendment to the motion is to remove from contention in this action all violations of the Clean Water Act and applicable permits allegedly committed by defendant with respect to the Blue Plains facility after January 31, 1989. Plaintiff notes that such violations are the subject of a new civil action initiated by the plaintiff simultaneously with the filing of the motion to amend the pending motion.
See United States v. District of Columbia, Civil No. 90-1643 (D. D.C.).
This case is now before the Court on plaintiff's motion for interim relief, to enforce judgment and to adjudicate the defendant in civil contempt, but solely for the purpose of considering the Court's jurisdiction to entertain the motion to enforce the judgment and to adjudicate the defendant in civil contempt.
The defendant contends that this Court lacks jurisdiction to enforce the conditions of the consent decree.
The plaintiff argues that the Court has jurisdiction to enforce the Consent Decree notwithstanding that the "termination date" provided in the Consent Decree has now passed. The primary case relied upon by the plaintiff is Aro Corp. v. Allied Witan, Co., 531 F.2d 1368, 190 U.S.P.Q. (BNA) 392 (6th Cir. 1976). The defendant contends that the Court lacks jurisdiction to enforce the Consent Decree and cites in support of its position a number of cases, primarily, McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir. 1985) and Fairfax Countywide Citizens Assoc. v. County of Fairfax, 571 F.2d 1299 (4th Cir. 1978). In Aro, the court stated that: "It is well established that courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them." 531 F.2d at 1371 (citations omitted). The court went on to note that "even in those instances in which the court's original jurisdiction may have been questionable, it has jurisdiction over settlement agreements, the execution of which renders the prior controversy academic." Id. (citation omitted). The Court further noted that a court, "acting within its sound discretion, . . . may relieve a party from a final judgment when a 'reason justifying relief from the operation of the judgment' exists. Rule 609(b)(6), F.R.C.P." Id. The facts in Aro were that the plaintiff instituted a suit against Allied alleging an infringement of a patent. The case was resolved pursuant to a settlement agreement, and the complaint and counterclaim were dismissed without prejudice. Thereafter, Aro, alleging that Allied had refused to honor certain conditions of the settlement agreement filed a motion asking the court to vacate the order dismissing the suit and to order specific performance of the settlement agreement. Allied challenged the court's jurisdiction arguing that because the issue was "purely contractual" and "because diversity was lacking" the matter should be resolved in the state courts. The District Court granted Aro's motion for reinstatement of the case on the court's docket and thereafter enjoined Allied from not complying with the agreement and then dismissed the complaint and counterclaim without prejudice. The Court of Appeals affirmed the decision of the District Court.
In Fairfax, the Fourth Circuit addressed a similar issue. There had been a settlement in a civil rights dispute and pursuant to the terms of the settlement, the defendants were required to take certain action and the case was dismissed. Thereafter plaintiffs felt that the defendants had not complied with the conditions of the settlement agreement and they filed a motion in the District Court to vacate the dismissal. In doing so they did not pray for reinstatement of the lawsuit and an opportunity to try it but rather for enforcement of the settlement agreement. The District Court reinstated the action and entered an order purporting to enforce the settlement agreement but the Court of Appeals reversed stating that the District Court lacked jurisdiction to take such action. The Fourth Circuit noted the decision in Aro and noted further that they were "in agreement with the Sixth Circuit that, upon repudiation of a settlement agreement which had terminated litigation pending before it, a district court has the authority under Rule 60(b)(6) to vacate its prior dismissal order and restore the case to its docket." 571 F.2d at 1303 (citations and footnote omitted). The Court went on to state, however, that:
We respectfully differ, however, with the Aro court in its conclusion that, once the proceedings are reopened, the district court is necessarily empowered to enforce the settlement agreement against the breaching party. We are of the opinion that the district court is not so empowered unless the agreement had been approved and incorporated into an order of the court, or, at the time the court is requested ...