A.J. Cooper and Herman Schwartz, with whom Camilla C. McKinney and D. Michael Lyles, were on the brief, for appellee in Nos. 96-CV-1690, 96-1760 & 97-CV-627, and for appellants in No. 96-CV-1907.
Before Steadman and Reid, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Reid, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)
Lutz Alexander Prager, Assistant Deputy Corporation Counsel, with whom Jo Anne Robinson, Principal Deputy Corporation Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corporation Counsel, Appellate Division, and Martin B. White, Assistant Corporation Counsel at the time the brief was filed, were on the brief, for appellant in os. 96-CV-1690, 96-CV-1760 & 97-CV-627, and for appellee in No. 96-CV-1907.
The interlocutory appeals in these consolidated cases *fn1 raise discrete issues relating to complaints pending in the Superior Court of the District of Columbia. The complaints seek declaratory, injunctive and other relief concerning the application and enforcement of the District of Columbia Solid Waste Facility Permit Act, D.C. Code § 6-3401 et seq. (1995 and March 2000 Supp.), and the District of Columbia Illegal Dumping Enforcement Act, § 6-2911 et seq. Appellees and cross-appellants, Eastern Trans-Waste of Maryland, Inc. and the company's individual owners ("ETW"), filed lawsuits against appellants and cross-appellees, the District of Columbia and certain of its agencies ("the District"), after the District took action against ETW for alleged illegal disposal of solid waste.
The District challenges the September 27, 1996, Memorandum and Order of the Honorable Stephen F. Eilperin, determining on summary judgment, that: (1) an order enjoining the District from enforcing the temporary version of the Solid Waste Facility Permit Act should be modified *fn2 to apply to the permanent version of the law "and its accompanying regulations"; *fn3 and (2) the $4.00 per ton solid waste facility charge, set forth in § 6-3457 (b)(1) and imposed on persons operating solid waste facilities, is an unconstitutional burden on interstate commerce in so far as it affects waste originating outside the District. On appeal, the District maintains that: (1) the trial court erred by modifying and extending the July 7, 1995 temporary restraining order since ETW failed to show that it is entitled to preliminary injunctive relief; (2) under the District's anti-injunction statute, D.C. Code § 47-3307 (1997), which prohibits lawsuits to enjoin the assessment or collection of taxes, neither the trial court nor this court has jurisdiction to consider the constitutionality of the $4.00 per ton solid waste facility charge, or the collection fee mandated by § 6-3415 (b), because they are taxes that ETW must pay before it may bring suit against the District; (3) the solid waste facility charge does not violate the commerce clause; and (4) the trial court erred in enjoining the District from enforcing its zoning laws against ETW. ETW contends that the trial court erred in failing to rule that the recycling surcharge and collection fee mandated by § 6-3415 (a) and (b) are unconstitutional. *fn4 Amicus, USA Waste of D.C., Inc., (1) challenges the District's solid waste "tax scheme," and (2) argues that the solid waste facility charge violates the due process and equal protection clauses of the Constitution of the United States. *fn5 A threshold question also exists as to whether this court has jurisdiction to entertain these interlocutory appeals.
We conclude that: (1) this court has jurisdiction to entertain the interlocutory appeals relating to the injunction and the solid waste facility charge; (2) on the peculiar circumstances of this case, § 47-3307 does not bar this court from considering the constitutionality of the solid waste facility charge, which we deem to be a tax rather than a fee under applicable case law; (3) the trial court did not abuse its discretion in modifying and extending the July 7, 1995 temporary restraining order; and (4) nothing in the trial court's July 7, 1995, or September 27, 1996, orders precludes the District from enforcing its zoning laws. Furthermore, we are constrained to remand the trial court's judgment regarding the solid waste facility charge for further proceedings consistent with this opinion. Finally, we agree with the trial court that additional factual development is essential to the resolution of issues regarding the collection fee and the recycling surcharge, and thus, do not determine whether we have jurisdiction over ETW's appeal; nor do we reach the merits of the issues presented by ETW's interlocutory appeal. Accordingly, we affirm the trial court's judgment in part, and remand this case to the trial court for further proceedings consistent with this opinion.
In late 1993, the Council of the District of Columbia began to consider and enact legislation, *fn6 and the executive branch of the District government promulgated regulations, designed to address problems created by waste collection businesses that had no permit or license to operate waste transfer stations in the District. *fn7 The record on appeal shows that on June 7, 1994, DPW sent a notice to all solid waste and recycling haulers, including ETW, advising them that under the Illegal Dumping Enforcement Act of 1994, "it is illegal for any person to cause or permit any solid waste transported in a vehicle to be disposed in or upon any area unless the site is authorized by the Mayor." On June 14 and 15, 1994, the District took action against ETW, a family owned business that collects solid waste mainly from federal facilities in the District of Columbia, Maryland and Virginia, separates recyclables, and transfers the waste residue to the I-95 Resource Recovery Facility in Lorton, Virginia ("Lorton landfill"). *fn8 The District seized an ETW truck and carried out inspections of ETW's facility, located at 1315 First Street, S.W.
Reacting to the District's efforts to require businesses, such as ETW, to obtain a permit for their solid waste activities, and to pay certain charges and fees, including a solid waste facility charge and a collection fee, ETW filed lawsuits in 1994 and 1995, seeking to enjoin enforcement of the Illegal Dumping Enforcement Act and the Solid Waste Facility Permit Act, as well as their implementing regulations. Further, among other relief, ETW eventually sought an order declaring that the then existing versions of the Acts, as well as any future versions of the Acts were unconstitutional, as applied, under the commerce clause of the Constitution of the United States. On July 7, 1995, the trial court granted ETW's motion for a temporary restraining order, which was modified and extended on September 27, 1996; the September 27 order also partially granted ETW's motion for summary judgment by determining that the $4.00 solid waste facility charge imposed by § 6-3457 (b)(1) is unconstitutional "as applied to solid waste processed in the District for less than 24 hours which originates and is destined for disposal out of the District . . . ." However, the trial court concluded that other issues relating to the Acts, including whether the $4.00 per ton solid waste facility charge was unconstitutional as applied to waste originating in the District, raised factual questions, and thus, were not ripe for decision. Both the District and ETW noticed appeals.
The Jurisdictional Issues
Since these cases are still pending in the trial court, we first determine whether this court has jurisdiction to resolve the issues raised by the District which relate to the trial court's September 27, 1996 memorandum and order: (1) the modification and extension of the July 7, 1995 temporary restraining order; and (2) the partial resolution of the $4.00 per ton solid waste facility charge. The September 27 ruling of the trial court is an interlocutory order, and generally, this court's jurisdiction is limited to reviewing "'final orders and judgments of the Superior Court of the District of Columbia.'" Dyer v. Bergman, 635 A.2d 1285, 1286-87 (D.C. 1993) (quoting D.C. Code § 11-721 (a)(1) (1989)). One exception to this general rule is the certification of a question of law to this court by the trial judge, pursuant to § 11-721 (d) and Super. Ct. Civ. R. 54 (b), before the entire case has been adjudicated. *fn9 Although the record shows that ETW filed motions on November 15, 1996 and December 20, 1996, "request[ing] permission to file appeal pursuant to D.C. Code [§] 11-721 (d)," counsel for ETW advises that permission was denied. The District did not file a Rule 54 (b) motion.
Another route to this court, without a final judgment or a Rule 54 (b) certification or appeal under § 11-721 (d), is an appeal of an order pertaining to an injunction. "Under D.C. Code § 11-721 [(a) (1995)], this court has jurisdiction of appeals . . ., in limited circumstances, from certain interlocutory orders . . . ." Hagner Management Corp. v. Lawson, 534 A.2d 343, 344 (D.C. 1987). *fn10 If the interlocutory order concerns an injunction; or "has 'the practical effect' of granting or refusing an injunction," and "imposes 'a sufficiently serious injury to justify an immediate appeal,'" the order is appealable. Id. at 345 (citing Brandon v. Hines, 439 A.2d 496, 506-07 (D.C. 1981)) ("adopt[ing] a two-part test established by the Supreme Court in Carson v. American Brands, Inc., 450 U.S. 79 (1981), for deciding the appealability of orders under the corresponding federal statute governing interlocutory appeals, 28 U.S.C. § 1292 (a)(1) (1976)") (footnote omitted).
It is clear that the portion of the trial court's September 27, 1995 order which modifies and extends the July 7, 1995 temporary restraining order constitutes a preliminary injunction, and we have jurisdiction to review the modification and extension of that order. *fn11 See Simmons v. Block, 782 F.2d 1545, 1549 (11th Cir. 1986) (construing the federal counterparts to § 11-721 (a) - - 28 U.S.C. § 1292 (a), and Super. Ct. Civ. R. 54 (b) - - Fed. R. Civ. P. 54 (b); and concluding that "the order appealed from is clearly an injunction," and that: "The appealability of an injunction under 28 U.S.C. is not affected by Fed. R. Civ. P. 54 (b)"). A question arises, however, as to whether that part of the September 27, 1995 order which grants summary judgment in favor of ETW as to the $4.00 per ton solid waste facility charge, as applied to waste originating outside the District, is appealable by the District. In a footnote in Barry v. Little, 669 A.2d 115 (D.C. 1995), we stated that:
An order granting partial summary judgment is usually considered a non-appealable interlocutory order in the absence of a certification under Super. Ct. Civ. R. 54 (b). Cohen v. Owens & Co., 464 A.2d 904 (D.C. 1983). However, because injunctive relief was granted pursuant to [the] judgment [in this case], this appeal is properly before us pursuant to D.C. Code § 11-721 (a)(2)(A) (1995 Repl.). Id. at 117 n.5 (citing Gomez v. Turner, 217 U.S. App. D.C. 281, 285, n.5, 672 F.2d 134, 138, n.5 (1982)); Roth v. Board of Regents, 446 F.2d 806, 807 (7th Cir. 1971), (rev'd on other grounds, 408 U.S. 564 (1972); Ortiz v. Eichler, 794 F.2d 889, 891 (3rd Cir. 1986)). *fn12 See also Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234, 1237 (7th Cir. 1985) (order granting partial summary judgment on one count of complaint held appealable under "28 U.S.C. § 1292 (a)(1) because the summary judgment had the practical effect of denying plaintiffs' request for permanent injunctive relief").
Given these authorities, we conclude that we also have jurisdiction to hear the District's appeal from that part of the interlocutory order which grants partial summary judgment to ETW with respect to the $4.00 per ton solid waste facility charge. However, this conclusion may be affected if we determine that the solid waste facility charge constitutes a tax, an issue which we discuss later in this opinion. *fn13
In its cross-appeal, ETW challenges the trial court's denial of ETW's motion for summary judgment with respect to sections of the Recycling Fee and Illegal Dumping Emergency Amendment Act of 1994 *fn14 which impose a recycling surcharge and a collection fee, § 6-3415 (a) and § 6-3415 (b). *fn15 The trial court appeared to conclude that the applicability of these code sections to ETW might depend upon the outcome of a factual hearing. As the court stated:
While the court thinks that ETW has the better of the argument that the regulatory scheme unconstitutionally forces the interstate commerce hauler to pay a double fee - - namely, the D.C. collection fee and any surcharge imposed by the State in which it ultimately dumps - -the court is of the view that a fuller factual record ...