Henry Friendly

“ However, this does not mean that dominating weight should be given to the views of agencies upon whom NEPA placed a duty to make impact statements when the result would be to relieve them from that obligation-particularly when these are “action” agencies like the GSA. The National Environmental Policy Act established its own watch-dog agency, The Council on Environmental Quality. The CEQ Guidelines lend additional support to the conclusion that the threshold determination of significance must be set at a low level. ”

“ Ford argues further that when fraud has been deliberate and massive, as it contends Semmes to have been, a dealer cannot "cure" this any more than a trustee can "cure" embezzlement so as to stave off removal or a spouse can "cure" adultery so as to prevent divorce. [16] That likewise may well be true, at least in the absence of condonation. But Semmes disputes the fraud and claims that Ford's long inaction with knowledge of the facts and its promise to give it an opportunity to check the audit require at least a postponement of rights that Ford might otherwise have. ”

“ Ford makes no claim that Semmes has not adequately represented it in the lucrative Scarsdale market, and the record indicates that the submission of false claims has been greatly reduced, if not eliminated. Ford urges it is irreparably injured "by forcing it to continue to be represented in an important vehicle market by a dealer which it has discovered to be unworthy of trust and by preventing it for years from making or implementing decisions affecting the Scarsdale area." ”

“ FRIENDLY, Circuit Judge concurring:
If asked to provide an example of an order that was not a "final decision" appealable under 28 U.S.C. § 1291, one could hardly do better than to pick the order review of which is here sought. The order does not compel or deny anything; it merely provides that consolidated pretrial discovery, which all agree to be proper, shall be conducted under a single consolidated complaint rather than separate complaints. ”

“ To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] to promote efforts which will prevent or eliminate damage to the environment . ”

“ However, these factors must be weighed in the setting created by Semmes' having initiated litigation in New Jersey and the likelihood that failure to stay the New York action will result in litigation in two courts [8] -- a danger the judge recognized when he made his "denial of the stay subject to further developments in the two actions and further order of the Court." We thus see little force in his observation that the New Jersey action had been pending only a short time; the potential of future waste and conflict exists nonetheless unless Ford consents to dismissal. ”

“ We would better serve the purposes of Congress by keeping the threshold low enough to insure that impact statements are prepared for actions in this grey area and thus to permit the determination that no statement is required to be made quite informally in cases of true insignificance. ”

“ The majority holds out some hope that the time may come when we will bring ourselves in line with our sister circuits with respect to the appealability of consolidation orders. I can think of no better time than now, when appellate dockets have swollen to the breaking point. ”

“ I. Commencing with the 1965 vehicles, introduced by Ford in the fall of 1964, the manufacturer has made its warranty directly to the retail purchaser as well as to the dealer. When a purchaser of a Ford car finds a defect which he claims to be within the warranty, he returns the car to the dealer who repairs it and submits a Warranty Refund Claim to Ford. The company reimburses the dealer for replacement parts at cost plus a profit and for labor in an amount determined by multiplying the installation time specified in a Ford schedule by the dealer's then approved labor rate. ”

“ To permit an agency to ignore its duties under NEPA with impunity because we have serious doubts that its ultimate decision will be affected by compliance would subvert the very purpose of the Act and encourage further administrative laxity in this area. ”

“ Ford. [1] Semmes considers Ford's termination of his dealership to be a retaliation for these activities and an endeavor to supplant him with a dealership in which Ford would have a financial stake; Ford rejoins that activities on behalf of dealers, however proper, cannot protect against the consequences of what it characterizes as fraud. We affirm, with a modification stated in section IV of this opinion, the temporary injunction issued by Judge Ryan as being within the discretion afforded him, but order that further proceedings be stayed pending termination of the New Jersey litigation. ”

“ If appellants should ever be able to show prejudice from Judge Pollack's order, they clearly can have relief on an appeal from any final judgment against them, if such judgment there should be. Dupont v. Southern Pacific Co., 366 F.2d 193, 196 (5 Cir. 1966) , cert. denied, 386 U.S. 958, 87 S.C.t. 1027, 18 L. Ed. 2d 106 (1967) ; Atkinson v. Roth, 297 F.2d 570, 575 (3 Cir. 1961) ; 9 Wright & Miller, Federal Practice and Procedure § 2386, at 276 (1971) . The order here involves "only an exercise of discretion . . ., a matter . . . subject to reconsideration from time to time . . . ." Cohen v. ”

“ While Ford's counsel might have been able to clear up the matter with greater persistence, we think the order should be modified to make clear that Ford is not to be limited to those customers whose cars were a subject of the August, 1969, audit. Ford's contention of large-scale submission of false and fraudulent Warranty Refund Claims by Semmes is serious and substantially supported. ”

“ The statute speaks of “the overall welfare and development of man,” 42 U.S.C. § 4331 (a) and makes it the responsibility of Federal agencies to “use all practicable means . . . to . . . assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.” ”

“ But whether Semmes is in fact "unworthy of trust" is one of the very points at issue, and there need be no delay of "years" unless Ford wills it so. Ford points out also that the Automotive News has characterized the district court's decision as severely restricting "factory auditing procedures and the circumstances under which the factory may cancel due to warranty overclaims," and argues that this will make Ford an easy mark for fraudulent dealers throughout the land. We read the opinion as strictly limited to the facts of this case ”

“ This circuit seems to stand alone in having taken a different view. We upheld the appealability of an order denying pre-trial consolidation in MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958) , and followed that precedent in the case of an order granting such consolidation in Garber v. Randell, 477 F.2d 711 (2 Cir. 1973) . However, under this court's doctrine not all such orders are appealable; they are "final" and appealable only under "exceptional circumstances" or when they raise "basic issues", Levine v. ”

“ An affidavit of one of Semmes' attorneys alleges that Semmes requested an opportunity for an independent appraisal, to which the Ford representatives did not object, and access to certain materials used by the auditors, which was refused. Meanwhile Ford had arranged with its New York attorneys to interview the owners contacted by the auditors and for teams comprised of an attorney, a Ford service representative and an independent expert to conduct further physical inspection of vehicles on which Semmes had submitted Warranty Refund Claims. ”

“ This is a long way from dictating any procedure for public participation in threshold determinations. The discussion in 460 F.2d at 648-649 affords further evidence that the earlier panel did not think there need be public participation before the GSA prepared a revised assessment. ”

“ On the same day, Ford moved, with elaborate affidavits and exhibits, to vacate the injunction and again to stay proceedings during the pendency of the New Jersey suit. In addition to more material relating to the extent of Semmes' alleged fraud based on further investigation between October 7 and November 5, and an expert statistician's appraisal of its significance, there was an affidavit by George Charney, Semmes' service manager since January 20, 1969, attesting to the regular submission of false claims with William Semmes' knowledge until just prior to the audit. ”

“ Since the action was equitable in nature, the denial of the stay would not itself by be appealable under 28 U.S.C. § 1292 (a) (1) as the denial of an injunction. City of Morgantown v. Royal Ins. Co., Ltd., 337 U.S. 254, 93 L. Ed. 1347, 69 S.C.t. 1067 (1949) ; Baltimore Contractors, Inc. ”

“ P. 45 (e) . Insofar as Semmes relies on the Federal Dealer Act, 15 U.S.C. § 1222, a New Jersey federal court is as well equipped to decide the issues as one in New York. See Clayton v. Warlick, 232 F.2d 699 (4 Cir. 1956) . So far as the New York statute is concerned, see fn. 13, infra, it can scarcely be doubted that a dealer's purposeful submission of false warranty refund claims would constitute "cause" for termination to the extent that this is consistent with the governing contract. ”

“ The sequence of events here affords some indication that Semmes might have been attempting to do just that, see fn. 5. The defendant is then put to the Hobson's choice of either going along with this ploy by agreeing to dismissal of the first action if the plaintiff is willing or having to defend two lawsuits at the same time. If he makes the latter election, as is his right, not only the parties but the courts pay a heavy price. "Courts already heavily burdened with litigation with which they must of necessity deal should . ”

“ III. Our recital has already demonstrated that scant heed was paid to our observations in SEC v. Frank, 388 F.2d 486, 490-92 (2 Cir. 1968) ; see also SEC v. Great American Industries, Inc., 407 F.2d 453, 455 (2 Cir. 1968, in banc) , cert. ”