Ex parte Alabama Rivers Alliance and Friends of Hurricane Creek. , 165 So. 3d 597 ( 2014 )

Rel: 09/26/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1130393
____________________
Ex parte Alabama Rivers Alliance and Friends of Hurricane
Creek
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Tuscaloosa Resources, Inc.
v.
Alabama Department of Environmental Management et al.)
(Tuscaloosa Circuit Court, CV-10-900300;
Court of Civil Appeals, 2120482)
PARKER, Justice.
1130393
Alabama Rivers Alliance and Friends of Hurricane Creek
(hereinafter collectively referred to as "ARA") petitioned
this Court for a writ of certiorari to review the Court of
Civil Appeals' decision reversing a judgment of the Tuscaloosa
Circuit Court ("the trial court") dismissing an appeal by
Tuscaloosa Resources, Inc. ("TRI"), of a decision of the
Environmental Management Commission ("the Commission"). See
Tuscaloosa Res., Inc. v. Alabama Dep't of Envtl. Mgmt., [Ms.
2120482, October 4, 2013] ___ So. 3d ___ (Ala. Civ. App.
2013). The Alabama Department of Environmental Management
("ADEM") oversees the Commission. We granted certiorari
review to consider whether the Court of Civil Appeals'
decision conflicts with this Court's decision in Price v.
South Central Bell, 294 Ala. 144, 313 So. 2d 184 (1975), and
the Court of Civil Appeals' decision in Personnel Board of
Jefferson County v. Bailey, 475 So. 2d 863 (Ala. Civ. App.
1985). See Rule 39(a)(1)(D), Ala. R. App. P. For the
following reasons, we conclude that the Court of Civil
Appeals' decision in this case does conflict with Price and
Bailey, and we reverse its judgment.
Facts and Procedural History
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In Tuscaloosa Resources, the Court of Civil Appeals set
forth the relevant facts and procedural history, as follows:
"TRI sought a water-pollution permit from ADEM. The
Alabama Rivers Alliance and Friends of Hurricane
Creek (hereinafter referred to collectively as
'ARA') challenged the issuance of the permit through
ADEM's administrative-appeals process. One of the
grounds TRI asserted in its defense of the issuance
of the permit was whether ARA had standing to
contest the permit. At the evidentiary hearing of
the matter, TRI presented evidence regarding the
standing issue. After the hearing, the hearing
officer submitted his recommendations to the
Commission. In turn, the Commission entered an
order adopting the hearing officer's recommendation,
which, among other things, concluded that ARA did
have standing to contest the permit, and it upheld
the issuance of the permit to TRI.
"TRI appealed the Commission's order to the
trial court.[1] The trial court noted that, by
1
As set forth below, ARA subsequently filed an appeal in
the Montgomery Circuit Court. Section 41-22-20(b), Ala. Code
1975, allows an aggrieved party to seek judicial review
"either in the Circuit Court of Montgomery County or in the
circuit court of the county in which the agency maintains its
headquarters, or unless otherwise specifically provided by
statute, in the circuit court of the county where a party
other than an intervenor, resides or if a party, other than an
intervenor, is a corporation, domestic or foreign, having a
registered office or business office in this state, then in
the county of the registered office or principal place of
business within this state." TRI does not indicate in its
brief before this Court why it believes that the Tuscaloosa
Circuit Court was the appropriate venue for its appeal. In
its motion to transfer ARA's appeal from the Montgomery
Circuit Court, TRI indicated that venue was appropriate in the
Tuscaloosa Circuit Court because ARA "perform[s] in Tuscaloosa
County business functions for which [it was] created."
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statute, only aggrieved parties can appeal a
decision of the Commission to the circuit court and
found that TRI was not a 'person aggrieved by the
administrative action' of the Commission.
Therefore, the trial court held, it did not have
subject-matter jurisdiction over the appeal, and it
dismissed TRI's appeal."
___ So. 3d at ___.
Standard of Review
This case concerns TRI's standing to appeal the
Commission's final decision in TRI's favor. The facts related
to TRI's standing to appeal the decision are not in dispute;
thus, only a question of law is presented for our review.
This Court reviews questions of law de novo. National Ins.
Ass'n v. Sockwell, 829 So. 2d 111 (Ala. 2002); Moss v.
Williams, 822 So. 2d 392 (Ala. 2001); and Reed v. Board of
Trs. of Alabama State Univ., 778 So. 2d 791 (Ala. 2000). See
also New L&N Sales & Marketing, Inc. v. Revson, 29 Fed. App'x
582, 582 (Fed. Cir. 2002)(not selected for publication in the
Federal Reporter)("Whether a party has standing to appeal is
a question of law that we review de novo."); Garrison v.
Garrison, 8 So. 3d 904, 906 (Miss. Ct. App. 2009)("Whether a
party has standing to appeal a trial court's judgment is a
question of law, which is reviewed de novo."); and Anderson v.
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Access Med. Ctrs., 263 P.3d 328, 330 (Okla. Civ. App.
2011)("'Whether a party lacks standing to appeal is a question
of law, which this Court reviews de novo ....'" (quoting In re
Baby W., 220 P.3d 32, 32 (Okla. Civ. App. 2009))).
Discussion
In Tuscaloosa Resources, the main opinion set forth the
law the Court of Civil Appeals applied, as follows:
"This case does not involve issues related to
the Commission's procedures when hearing the appeal
of an action taken by ADEM, see § 22-22A-7, Ala.
Code 1975; therefore, our review of this case is
governed by the Alabama Administrative Procedure Act
('AAPA'), § 41-22-20, Ala. Code 1975. See Alabama
Dep't of Envtl. Mgmt. v. Legal Envtl. Assistance
Found., Inc., 973 So. 2d 369, 375 n. 3 (Ala. Civ.
App. 2007) (quoting Plumbers & Steamfitters, Local
52 v. Alabama Dep't of Envtl. Mgmt., 647 So. 2d 793,
794–95 (Ala. Civ. App. 1994) ('"because [the case]
concerns a matter unrelated to the perfecting of an
appeal, judicial review of a decision of the
Commission is governed by §§ 41–22–20 and –21"')).
"Section 41–22–20 provides, in pertinent part:
"'(a) A person who has exhausted all
administrative remedies available within
the agency, other than rehearing, and who
is aggrieved by a final decision in a
contested case is entitled to judicial
review under this chapter.'
"(Emphasis added.)
"Black's Law Dictionary 1232 (9th ed. 2009)
defines an 'aggrieved party' as '[a] party entitled
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to a remedy; esp., a party whose personal,
pecuniary, or property rights have been adversely
affected by another person's actions or by a court's
decree or judgment.' In Alabama Department of
Environmental Management v. Friends of Hurricane
Creek, 114 So. 3d 47, 51 (Ala. Civ. App. 2012), this
court discussed what constituted an 'aggrieved'
person under the AAPA.
"'We start with the proposition that,
for a person to demonstrate standing to
seek relief in the courts of Alabama, that
person must show "'(1) an actual concrete
and particularized "injury in fact" —- "an
invasion of a legally protected interest";
(2) a "causal connection between the injury
and the conduct complained of"; and (3) a
likelihood that the injury will be
"redressed by a favorable decision."'" Ex
parte HealthSouth Corp., 974 So. 2d 288,
293 (Ala. 2007) (quoting Stiff v. Alabama
Alcoholic Beverage Control Bd., 878 So. 2d
1138, 1141 (Ala. 2003), quoting in turn
Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d
351 (1992)). Those elements of an actual
or imminent injury, causation, and
redressability, which have their origins in
the "case or controversy" interpretive
jurisprudence pertaining to Article III of
the United States Constitution, amount to
constitutional minima, at least as to the
judicial branch. See Hollywood Mobile
Estates, Ltd. v. Seminole Tribe of Florida,
641 F.3d 1259, 1265 (11th Cir. 2011); see
also Pharmacia Corp. v. Suggs, 932 So. 2d
95, 97 n. 4 (Ala. [2005]) (indicating that
Section 139 of the Alabama Constitution of
1901 similarly empowers this state's
judiciary to "'decide discrete cases and
controversies involving particular parties
and specific facts'" rather than answering
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abstract questions) (quoting Alabama Power
Co. v. Citizens of Alabama, 740 So. 2d 371,
381 (Ala. 1999)); but see Climax Molybdenum
Co. v. Secretary of Labor, 703 F.2d 447,
451 (10th Cir. 1983) (indicating that
administrative agencies are not bound by
constitutional "case or controversy"
requirements).'"
___ So. 3d at ___.
After setting forth the above law, the Court of Civil
Appeals proceeded to analyze Bailey, supra:
"In Bailey, a deputy sheriff filed a grievance with
the Jefferson County Personnel Board ('the Board')
complaining that Sheriff Bailey had improperly
transferred him from patrol duty to jail duty. The
Board found that the deputy sheriff's complaint was
'grievable' and then, after a hearing on the merits,
entered a decision reinstating the deputy sheriff to
the patrol division. 475 So. 2d at 865. Sheriff
Bailey appealed the decision to the circuit court,
seeking a judgment declaring that matters of job
assignment were within the prerogative of the
sheriff and not subject to review by the Board. The
circuit court determined that the deputy sheriff's
complaint was a matter properly considered by the
Board but also held that the Board's reinstatement
of the deputy sheriff to patrol duty was arbitrary
and capricious. The deputy sheriff appealed to this
court, and Sheriff Bailey cross-appealed. Id.
"The deputy sheriff asserted that, because
Sheriff Bailey had prevailed, he did not have
standing to cross-appeal. However, this court
concluded that, because the circuit court's decision
'could have a prejudicial effect on [Sheriff
Bailey's] authority to assign and discipline
subordinates in his department,' he had the right to
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cross-appeal the finding that the complaint was
'grievable.' Id. at 866."
Tuscaloosa Resources, ___ So. 3d at ___.
Based on its analysis of Bailey, the Court of Civil
Appeals then stated:
"We find the rationale set forth in Bailey to be
applicable in this case. TRI sought a ruling that
ARA did not have standing to challenge the water-
pollution permit that ADEM had issued. It argues
that, in holding that ARA had standing, the
Commission's ruling subjects TRI to additional
litigation, that is, TRI now must take on the
expense and risk required to defend ARA's appeal of
the Commission's decision in the Montgomery Circuit
Court. However, if the trial court in the
underlying appeal reverses the Commission's ruling
on the issue of ARA's standing, TRI would not be
required to address the merits of the issuance of
the permit. Furthermore, we agree with TRI that the
Commission's ruling weakens procedural protections
against challenges to any permits TRI might require
for future operations. Therefore, we conclude that
TRI has demonstrated that it was aggrieved by the
Commission's decision that ARA had standing to
challenge the permit."
Tuscaloosa Resources, ___ So. 3d at ___. Accordingly, the
Court of Civil Appeals held that the trial court had erred in
dismissing TRI's appeal.
In its petition for certiorari review, ARA alleges that
the main opinion in Tuscaloosa Resources conflicts with Price,
supra, and Bailey, supra. Specifically, ARA alleges that the
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conclusion in Tuscaloosa Resources that TRI had standing to
appeal the Commission's decision to the trial court because
TRI was aggrieved by the Commission's decision that ARA had
standing to challenge TRI's application for a water-pollution
permit, even though TRI received all the relief it requested
from the Commission (TRI's water-pollution permit was granted,
even though the Commission determined that ARA had standing to
challenge TRI's application), conflicts with Price and Bailey.
We granted certiorari review to address this issue.
For the reasons set forth in Judge Moore's dissent in
Tuscaloosa Resources, which is similar to the reasoning set
forth by ARA in its brief before this Court, we hold that the
Court of Civil Appeals' opinion in Tuscaloosa Resources
conflicts with Bailey and Price, and, thus, the Court of Civil
Appeals' judgment must be reversed. Judge Moore's convincing
dissent states, in pertinent part:
"The main opinion, citing Personnel Board of
Jefferson County v. Bailey, 475 So. 2d 863 (Ala.
Civ. App. 1985), adopts TRI's assertions that the
Commission's ruling subjects TRI to additional
litigation because 'TRI now must take on the expense
and risk required to defend ARA's appeal of the
Commission's decision in the Montgomery Circuit
Court.' ___ So. 3d at ___. The main opinion
further observes that, 'if the trial court in the
underlying appeal reverses the Commission's ruling
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on the issue of ARA's standing, TRI would not be
required to address the merits of the issuance of
the permit.' ___ So. 3d at ___.
"Although the main opinion relies on Bailey, I
find the circumstances in Bailey to be
distinguishable from those in the present case. In
Bailey, a deputy sheriff filed a grievance with the
Jefferson County Personnel Board ('the Board'),
asserting that the sheriff had transferred him from
patrol duty to jail duty in the sheriff's department
for disciplinary reasons. 475 So. 2d at 865. The
Board determined that the deputy sheriff's complaint
was 'grievable,' proceeded to hear the merits of the
complaint, and ultimately ruled in the deputy
sheriff's favor, ordering that he be reinstated to
the patrol division. Id. The sheriff then filed a
complaint in the circuit court, seeking a judgment
declaring that matters of job assignment, placement,
and transfer are prerogatives of the sheriff and,
thus, not subject to review by the Board and that
the Board's decision was erroneous. Id. The
circuit court ultimately entered a final judgment
ruling that the Board's decision was arbitrary and
capricious; the deputy sheriff and the Board
appealed from that portion of the circuit court's
order. Id. The circuit court had previously
entered a partial summary judgment, finding that the
deputy sheriff's complaint had been properly before
the Board for its consideration; the sheriff cross-
appealed from that portion of the judgment. Id.
"In determining that, although the sheriff was
the prevailing party below, the sheriff had the
right to cross-appeal the circuit court's finding on
the grievability issue, this court observed that
'the court's decision could have a prejudicial
effect on [the sheriff's] authority to assign and
discipline subordinates in his department.' Id. at
866. This court considered the case of Price v.
South Central Bell, 294 Ala. 144, 313 So. 2d 184
(1975), in reaching its conclusion as to that matter
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in Bailey.1 In Price, the prevailing party below and
the appellee before the Alabama Supreme Court
attempted to circumvent the decision reached on the
merits in its favor in the circuit court and to
avoid a potentially unfavorable decision on appeal
by arguing that the action should have been
dismissed because the appellant had failed to
prosecute the action in the name of the real party
in interest. 294 Ala. at 150, 313 So. 2d at 189.
The Alabama Supreme Court explained that '[i]f an
appellee wishes to have rulings of the trial court
adverse to it reviewed, an appellee must either take
a cross-appeal or cross-assign errors upon the
record brought up by appellant.' Id.
"This court determined in Bailey that the
sheriff merely had the right to cross-appeal, not to
initiate an independent appeal on the grievability
issue. The main opinion in the present case
improperly expands that determination to allow for
an independent appeal for appellants who are the
prevailing parties in the circuit court. The
reliance on Price by this court in Bailey supports
the assertion that the sheriff in Bailey, and TRI in
the present case, would not have standing to bring
an independent appeal because they were the
prevailing party in the lower court.
"In Hollywood Mobile Estates, Ltd. v. Seminole
Tribe of Florida, 641 F.3d 1259, 1265 (11th Cir.
2011), cited in Alabama Department of Environmental
Management v. Friends of Hurricane Creek, [114 So.
3d 47 (Ala. Civ. App. 2012)], ... the Eleventh
Circuit Court of Appeals observed:
"'"'[W]e should not speculate concerning
the existence of standing'" because we
"'lack[] the power to create jurisdiction
by embellishing a deficient allegation of
injury.'" DiMaio v. Democratic Nat'l Comm.,
520 F.3d 1299, 1301 (11th Cir. 2008)
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(quoting Elend v. Basham, 471 F.3d 1199,
1206 (11th Cir. 2006)).'
"TRI filed the present appeal to this court on April
26, 2010. ARA filed an appeal of the Commission's
decision to the Montgomery Circuit Court on May 26,
2010. Thus, at the time TRI filed its appeal, no
appeal by ARA of the Commission's decision in favor
of TRI was pending. As a result, any purported
damage to TRI as a result of its potentially being
required to defend an appeal by ARA was only
speculative, not concrete, at the time TRI filed its
appeal. In accordance with the instruction of
Hollywood Mobile Estates, it would be error to
speculate so as to bestow TRI with standing to
appeal in this case.2
"With regard to TRI's argument, and the main
opinion's agreement therewith, that, had the
Commission determined that ARA did not have
standing, TRI would not have been required to
undergo further litigation and incur expenses in
addressing the merits of the issuance of the permit,
___ So. 3d at ___, I note that, under such
circumstances, ARA could appeal the Commission's
decision that it did not have standing, causing TRI
to undergo further litigation, including costs and
time. TRI's argument is circular; to accept its
argument as the main opinion has done would allow
any prevailing party to claim as damage the
possibility of additional time and expense in
defending an appeal and/or further litigation by the
opposing party in any action. Indeed, had the
Commission determined that ARA did not have
standing, TRI might have been required to take on
the additional time and expense of defending an
appeal of that decision by ARA as well.
Accordingly, TRI does not have standing to
independently appeal a decision wholly in its favor.
"The main opinion also agrees with TRI 'that the
Commission's ruling weakens procedural protections
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against challenges to any permits TRI might require
for future operations.' ___ So. 3d at ___. Again,
the only support for that statement is grounded in
Bailey, which I have distinguished above. TRI
offered no further citation to authority in support
of that assertion. ...
"Because I believe the main opinion improperly
allows TRI to bring an independent appeal,
misconstruing Bailey, and because I believe TRI, as
a prevailing party below does not have standing to
bring this appeal, I would dismiss TRI's appeal.
"____________________
"1This court also cited Katz v. Red Top Sedan
Service, Inc., 136 So. 2d 11 (Fla. Dist. Ct. App.
1962). In that case, however, the appellants had
been successful in the circuit court, but assigned
errors based on their assertion that the damages
awarded had been too minimal. Id. Thus, the
decision in that case has no bearing on the
considerations at issue in the present case.
"2See also ACS Enters., Inc. v. Norristown
Borough Zoning Hearing Bd., 659 A.2d 651, 654 (Pa.
Cmwlth. Ct. 1995) ('[A] prevailing party's
disagreement with the legal reasoning or basis for
a decision does not amount to a cognizable
aggrievement necessary to establish standing. ...
[T]he mere possibility of future litigation does not
satisfy the requirement that to be considered an
aggrieved party, the party's interest must be
immediately affected by a decision.')."
Tuscaloosa Resources, ___ So. 3d at ___ (Moore, J.,
dissenting). Judge Moore properly concluded that TRI did not
have standing to file an independent appeal from the judgment
entered in TRI's favor.
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Conclusion
Based on the foregoing, the judgment of the Court of
Civil Appeals is reversed and the case remanded to that court
for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Stuart, Bolin, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock and Shaw, JJ., concur in the
result.
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MURDOCK, Justice (concurring in the result).
I agree with Judge Moore's, and therefore the main
opinion's, understanding of Personnel Board of Jefferson
County v. Bailey, 475 So. 2d 863 (Ala. Civ. App. 1985), and
why it fails to support the proposition that a prevailing
party in a case can file an appeal independent of an appeal by
the losing party.2 I am concerned, however, by the manner in
which Judge Moore and this Court in the main opinion both use
"standing" terminology to refer to an aggrieved party's right
to appeal. I believe this moniker presents the potential for
2
I would stop short of the notion expressed in Justice
Shaw's special writing that, even in the absence of an appeal
by the deputy sheriff of the circuit court's ultimate decision
that he was not entitled to reinstatement, there was "nothing
preventing Sheriff Bailey from filing an independent appeal
from the adverse judgment against him in the declaratory-
judgment action" regarding the proper role of the Jefferson
Personnel Board. ___ So. 3d at ___ (Shaw, J., concurring in
the result). I believe it fairly could be questioned whether,
had the deputy acquiesced in the circuit court's decision
reversing the personnel board's action on its merits, there
would have continued to be a present and actual controversy of
the nature contemplated by the Declaratory Judgment Act, §
6–6–220 et seq., Ala. Code 1975, or the requirement of an
ongoing "case or controversy" under Art. VI, § 139, Alabama
Constitution 1901, for the continuation of an appeal. See Ex
parte Valloze, 142 So. 3d 504, 508 and n.2 (Ala. 2013). See
also Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d
220, 223 (Ala. 2003) ("For a declaratory-judgment action to
withstand a motion to dismiss there must be a bona fide
justiciable controversy that should be settled.").
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confusion with the concept of, and the prerequisites for, the
"standing" to sue that so often has drawn the attention of
this Court in recent years.
Indeed, this potential appears to be realized to some
extent even in Judge Moore's dissenting opinion. In a portion
of Judge Moore's dissent quoted by the main opinion, he states
that "'any purported damage to [Tuscaloosa Resources, Inc.
("TRI"),] as a result of its potentially being required to
defend an appeal by [Alabama Rivers Alliance and Friends of
Hurricane Creek (collectively "ARA")] was only speculative,
not concrete, at the time TRI filed its appeal.'" ___ So. 3d
at ___ (quoting Tuscaloosa Res., Inc. v. Alabama Dep't of
Envtl. Mgmt., [Ms. 2120432, Oct. 4, 2013] ___ So. 3d ___, ___
(Ala. Civ. App. 2013) (Moore, J., dissenting)). This
statement implies that, but for the timing of things (the fact
that ARA had not yet filed its own appeal when TRI attempted
to file its appeal), the litigation costs and time that TRI
would incur in defending an appeal by ARA should be considered
a form of "injury" that would be relevant to a "standing"-to-
appeal analysis. I find this implication to be contrary to
the view embodied in the next paragraph of Judge Moore's
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writing (with which I fully agree) that the time and expense
of defending an appeal brought by an opposing party is not the
type of injury that informs a "standing" analysis. Tuscaloosa
Resources, ___ So. 3d at ___ (Moore, J., dissenting).
Standing is a concept concerned with substantive rights and
injuries, not appellate-litigation time and costs.
The "standing" commonly addressed by this Court is a
concept that speaks to whether a litigant has the requisite
personal, concrete interest to invoke the aid of the courts in
the first place, i.e., to file a complaint commencing an
action. TRI, or a litigant in its position, does not lose
whatever personal, concrete interest it had at the outset of
the litigation merely by virtue of prevailing in the initial
adjudication of the dispute in a lower court or other
tribunal; until such time as the adjudication of the dispute
is at an end by virtue of the exhaustion of, or lack of proper
invocation of, the appellate process, such a party has as much
of an interest in relation to the dispute as it always had
(and even then has what we normally think of as "standing" to
seek enforcement of the judgment in its favor).
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Although they may be somewhat analogous, the restraining
principle at issue here and the issue of "standing" are two
different things. See generally Joan Steinman, Shining a Light
in a Dim Corner: Standing to Appeal and the Right to Defend a
Judgment in the Federal Courts, 38 Ga. L. Rev. 813 (Spring
2004); 15A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3902.1 (2d ed. 1992).
The term "standing to appeal," which admittedly has been used
by federal courts, is in actuality merely a way of referring
to a statutorily granted "procedural right" to have some
higher court conduct some further review of one's case.
"Congress has vested appellate jurisdiction in
the courts of appeals for review of final decisions
of the district courts. 28 U.S.C. § 1291.
Ordinarily, only a party aggrieved by a judgment or
order of a district court may exercise the statutory
right to appeal therefrom. A party who receives all
that he has sought generally is not aggrieved by the
judgment affording the relief and cannot appeal from
it. Public Service Comm'n v. Brashear Freight
Lines, Inc., 306 U.S. 204 (1939); New York Telephone
Co. v. Maltbie, 291 U.S. 645 (1934); Corning v. Troy
Iron & Nail Factory, 15 How. 451 (1854); 9 J. Moore,
Federal Practice ¶ 203.06 (2d ed. 1975). The rule
is one of federal appellate practice, however,
derived from the statutes granting appellate
jurisdiction and the historic practices of the
appellate courts; it does not have its source in the
jurisdictional limitations of Art. III[, U.S.
Const.]."
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Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333-34 (1980)
(emphasis added).3
That said, I agree with the main opinion to the extent it
can be read as standing for the proposition that TRI was the
prevailing party before the Commission and therefore did not
have the "right" to file an appeal. Further, of course, even
with the subsequent filing of an appeal by ARA, TRI had no
right to "piecemeal" to some different "appellate" tribunal --
i.e., other than one to which ARA had properly appealed -- its
request for consideration of an alternative ground for
upholding the lower tribunal's decision (which is what ARA's
alleged lack of "standing" to sue would have been in this case
had it been meritorious). Nor could TRI "piecemeal" a cross-
appeal (if it had a basis for one, which, unlike the sheriff
in Bailey, I do not believe it does), to some "appellate"
tribunal other than the one in which the losing party properly
filed its appeal.
3
If there is any constitutional constraint on the ability
of a prevailing party to appeal in the absence of an appeal by
the losing party, it might be the loss of a continuing "case
or controversy" as a result of the loss of an adverse party.
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SHAW, Justice (concurring in the result).
I am not convinced that the decision relied upon by the
Court of Civil Appeals, Personnel Board of Jefferson County v.
Bailey, 475 So. 2d 863 (Ala. Civ. App. 1985), supports that
court's decision. Specifically, the cross-appellant in that
case, Sheriff Bailey, had filed a declaratory-judgment action
seeking a determination whether the appellant, the Personnel
Board of Jefferson County ("the Board"), had the power to
overrule his personnel decision. He also filed what was
deemed as a separate common-law certiorari petition
challenging the merits of the Board's holding that overruled
his personnel decision.
Sheriff Bailey first received a nonfinal adverse judgment
on the declaratory-judgment action and then also later
received a favorable judgment on the certiorari petition. The
Board appealed from the judgment against it on the certiorari
petition, and Sheriff Bailey cross-appealed from the adverse
judgment against him on the declaratory-judgment action. Even
if the Board had filed no appeal, I see nothing preventing
Sheriff Bailey from filing an independent appeal from the
adverse judgment against him in the declaratory-judgment
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action. The analysis in Bailey, which focused on whether
Sheriff Bailey could appeal from a favorable judgment, was
misplaced--he was not appealing the favorable judgment on the
certiorari petition. I see no support in Bailey for the Court
of Civil Appeals' decision in the instant case on the issue
whether a party may appeal from a favorable judgment.
Both the Court of Civil Appeals' decision in the instant
case, as well as Judge Moore's dissenting opinion, which is
quoted at length in the main opinion, rely on the test for
standing found in Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992). In my dissenting opinion in Ex parte Alabama
Educational Television Commission, [Ms. 1111494, Sept. 27,
2013] ___ So. 3d ___ (Ala. 2003), I rejected the application
of Lujan in situations other than general constitutional
challenges, especially when the legislature provides a cause
of action and subject-matter jurisdiction by statute.
This case does not present a general constitutional
challenge. Further, the legislature, in Ala. Code 1975, § 41-
22-20(a), has provided Tuscaloosa Resources, Inc., with the
right to appeal to the trial court when it is "aggrieved" by
a decision of the Environmental Management Commission ("the
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Commission"). I agree with the portion of Judge Moore's
dissent, quoted in the main opinion, demonstrating that any
"purported damage" to TRI by the Commission's decision is only
speculative and based on conjecture. I thus do not believe
that TRI was "aggrieved" by the Commission's decision for
purposes of § 41-22-20(a).
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