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Mccallion Response to Possible Sanctions

Mccallion Response to Possible Sanctions

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Published by The Post-Standard
Attorney Kenneth McCallion's response to U.S. District Court judge admonishment
Attorney Kenneth McCallion's response to U.S. District Court judge admonishment

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Published by: The Post-Standard on Jun 05, 2013
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07/05/2013

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK 
 ____________________________________________x
CAMILLUS CLEAN AIR COALITION, Robert andColleen Bartlett, William and Michelle Barrington III, Case No. 5:13-CV-365Kim Calverase
,
Daniel and Veruska Dantuono, David (FJS/DEP)and Juliette Dedo, Timothy and Sally DeLany,Brian and Tracy Dellow, Ron Gryziec and BrendaCarpenter, Douglas and Charlene Hart, Thomas andKimberly Kshyna, Michael and Alpha Kshyna,Matthew and Tracy Licameli, John andKathleen Marinelli, William and Stephanie DECLARATION OFMathewson, Peter and Jenafer Medina, Bryan KENNETH F. McCALLIONMignone and Elaine Everitt, Brian and Kimberly
Murphy
,
Scott and Jill Musumeci
,
Jerry and
 
Kristina Parzych, Jonathan and Margaret Patch,Timothy and Sharon Pieper, Frederick and HeatherPuchta,
Lynore and Mark de la Rosa, Robert andLori Smith,
Joey St. Louis, Robert and MeganVertucci, and Michael and Lynda Wade,
Plaintiffs,-against-
HONEYWELL INTERNATIONAL, INC,
Defendant. ___________________________________________x
KENNETH F. McCALLION, an attorney duly admitted to the practice of law in thisCourt, hereby declares as follows under penalties of perjury:1.
 
I am the principal attorney with the law firm of McCallion & Associates, LLP,attorneys for plaintiffs in this matter. I submit this Declaration in
response to the Court’s
direction that I show cause why the Court should not sanction me for failing to note in
 plaintiffs’ memorandum of law in opposition to defendant’s motion to dismiss that arelevant portion of the Third Circuit’s decision in
United States v. Princeton Gamma-Tech, Inc., 31 F. 3d 138 (3d Cir. 1994)
(“
Princeton
”)
had been subsequently overruled.
Case 5:13-cv-00365-FJS-DEP Document 51 Filed 05/30/13 Page 1 of 7
 
22.
 
Preliminarily, I wish to note that this year is my 40
th
anniversary as a practicingattorney in the New York State courts, and I am also a member of the federal bars in theSouthern, Eastern, Northern and Western Districts of New York. During that time period,I served as an AUSA in the Eastern District of New York (Brooklyn) and as a SpecialAssistant Attorney General with the Organized Crime Section of the U.S. Department of Justice. I was also a Special Assistant Attorney General with the New York State Special
Prosecutor’s Office, and later on,
served as the Deputy First Assistant Attorney General
with the NYS Attorney General’s Office. More recently,
while in private practice, I have primarily represented individuals and class action plaintiffs in environmental law andhuman rights cases, as well as in other complex litigations. I represented the NativeAmerican corporate plaintiffs in the
 Exxon Valdez 
litigation, and was the lead counsel incertain of the Holocaust-related cases brought against various banks. I also representeddozens of families in various September 11
th
and WTC Disaster cases, while I was (andstill am) an Adjunct Professor at Cardozo Law School.3.
 
I have never been sanctioned or otherwise disciplined.
4.
 
The fail
ure of Plaintiffs’ counsel to note that a portion of the
Princeton decisionwas later overruled by the Third Circuit was completely unintentional and inadvertent.
Indeed, a draft of Plaintiffs’ Memo of Law in Opposition made reference to the fact that
the Third Circuit reversed itself in part in the Clinton County, but that certaincommentators have argued that the earlier Princeton decision was better reasoned andmore persuasive on public policy and other grounds.
See, e.g 
., UCLA Journal of Environmental Law & Practice, December 22, 1999
, Jonathan N. Reiter, “CERCLASection 113(h) &RCRA citizen suits: to bar or not to bar?”
 
(“UCLA Article”).
The UCLAA
rticle, which was cited in Plaintiffs’ Memo of Law
(at p. 14), includes an extended
Case 5:13-cv-00365-FJS-DEP Document 51 Filed 05/30/13 Page 2 of 7
 
3
analysis of the Princeton and Clinton County decisions, explicitly noting that the ThirdCircuit had reversed itself in Clinton County. However, the article expresses the view,
shared by other commentators, that “the
Princeton decision and its modified version aregrounded in definitive policy rationale that the Clinton County court evidently
overlooked.” (
UCLA Article at 6 of 14). The article further concludes that
“the
ClintonCounty court made far-reaching presumptions and asserted inconsistent arguments,rendering it an
internally flawed opinion.”
 Id.
 
5.
 
The clear inference, therefore, is that the failure
of plaintiffs’ counsel
to explicitly
note the Third Circuit’s later reversal
of its prior Princeton decision on this particular issuewas unintentional since, if such an oversight had been deliberate, p
laintiffs’ counsel would
never have referred the Court to a scholarly article that extensively discussed (andcriticized) this later decision.
1
 6.
 
Plaintiffs’ counsel’s intention here was to argue that, despite the fact that
Princetonhad been reversed in a Circuit other than the one where the instant case is pending, thePrinceton case analysis of Section 113(h) was the better reasoned approach, as well asmore consistent with public policy considerations, in that it afforded citizens at least some judicial recourse during the course of an ongoing environmental clean-up when theremediation itself was creating the public health hazard.
7.
 
While the Clinton County case most certainly have been cited
in plaintiffs’ memo
of law, the
Third Circuit’s decision in that case could not have risen to the level of binding
1
Even federal district courts have made the honest mistake of citing to the Princeton case even after theClinton County case was decided by the Third Circuit. For example, in United States v. Iron MountainMines, Inc., 987 F. Supp. 1244 (E.D. Cal. 1997), a case decided on September 30, 1997, the district courtcited to Princeton (at ftnt. 3) even though Clinton County had been previously decided on June 26, 1997.
Another case, decided in 2003, notes that “[t]he Uni
ted States relies on [Princeton
],” albeit on another issue.
See
United States. v. Dravo Corp, 8:01 cv 500 (D. Neb. 6/20/2003). In Dravo Corp, the court correctly notedin a footnote that Princeton had been reversed and overruled, which is exactly what Pla
intiffs’ counsel
intended (but failed) to do in this case.
Case 5:13-cv-00365-FJS-DEP Document 51 Filed 05/30/13 Page 3 of 7

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