                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-1998

In Re: Chambers Dev
Precedential or Non-Precedential:

Docket 97-3145




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Recommended Citation
"In Re: Chambers Dev" (1998). 1998 Decisions. Paper 119.
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Filed May 22, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3145

IN RE: CHAMBERS DEVELOPMENT COMPANY, INC.,
       Petitioner

On Petition for a Writ of Mandamus from the
United States District Court for the Western
District of Pennsylvania

(Civil No. 92-509J)

Argued: June 13, 1997

Before: STAPLETON and McKEE, Circuit Judges, and
ROSENN, Senior Circuit Judge

(Opinion filed: May 22, 1998)

       MICHAEL R. COLE, ESQ. (Argued)
       DAVID FERNANDEZ, ESQ.
       GREGORY BEVELOCK, ESQ.
       Riker, Danzig, Scherer, Hyland
       & Perretti LLP
       Headquarters Plaza
       One Speedwell Avenue
       Morristown, NJ 07962-1981

       Attorneys for Petitioner
       BENJAMIN CLARKE, ESQ. (Argued)
       JONATHAN L. WILLIAMS, ESQ.
       DeCotiis, Fitzpatrick & Gluck
       500 Frank W. Burr Boulevard
       Teaneck, New Jersey 07666

       Attorneys for Respondent,
       Passaic County Utilities Authority

OPINION OF THE COURT

McKEE, Circuit Judge.

Chambers Development Company, Inc., petitions for a
writ of mandamus following our remand in Chambers
Development Co., Inc., v. Passaic County Utilities Authority,
62 F.3d 582 (3d Cir. 1995) ("Chambers I"). Chambers
argues that mandamus is necessary because the district
court ignored that mandate. We agree, and will therefore
grant a writ of mandamus and remand this matter once
again for proceedings consistent with this opinion.

I.

When this matter was initially before us we observed that
"[t]he parties and the court . . . plunged into a procedural
miasma which is virtually impenetrable." 621 F.3d at 583.
The case is now more confused than ever. It has evolved
from miasma to a jurisprudential Rubik's cube, becoming
more jumbled at each turn. The dispute arises from a
breach of contract action between Chambers and Passaic
County Utilities Authority ("PCUA"). We detailed the
intricacies leading up to the dispute in Chambers I. We will
now summarize the background only insofar as is
necessary to resolve the issues raised by the mandamus
petition before us.

In 1987, Chambers and PCUA entered into a contract for
Passaic County's waste disposal. The contract was divided
into three parts: an Agreement for the Grant and
Acquisition of a License ("Initial Agreement"); a Long-Term
Agreement for the Grant and Acquisition of a License for

                               2
Ash Residue Waste Disposal ("Long-Term Agreement"); and
an Easement and License Agreement. The Initial Agreement
governed the rights and duties of the parties from
December 1, 1987, until December 1, 1992. The Long-Term
Agreement governs the rights and duties of the parties from
December 1, 1992 until December 1, 2002.

The Initial Agreement required PCUA to deposit all of its
municipal solid waste ("MSW") in Chambers' landfills in
Pennsylvania and required Chambers to reserve airspace
for up to a maximum of 2.25 million tons of MSW in the
first five year period. PCUA paid Chambers $51,225,000 in
advance for its first period disposal rights. Performance of
the Initial Agreement is not in dispute.

The Long-Term Agreement covered ash residue waste and
non-processible and bypass solid waste generated by a
mass burn incinerator or "resource recovery facility" ("RRF")
that PCUA originally intended to have in place by 1992.
However, construction of the RRF was not a condition
precedent to either party's obligations under the Long Term
Agreement. The Long-Term Agreement also provided that
Chambers' landfills would serve as the primary disposal
site for all solid waste for any period in which the RRF was
not in operation. As it happened, the New Jersey
Department of Environmental Protection and Energy
("NJDEPE") disapproved PCUA's proposed construction of
an RRF and PCUA has no plans to construct one in the
foreseeable future. However, the only significance of the
cancellation of the RRF was that Chambers would be
receiving ordinary MSW rather than receiving ash and by-
pass waste.

New Jersey's environmental law required that NJDEPE
approve the contract with Chambers. Accordingly, on June
24, 1987, Passaic County adopted Plan Amendment 4-1987
which sought approval of the County's Plan to:

       include the Chambers Development Company, Inc.,
       landfill system in Pennsylvania and other states, to be
       utilized as primary landfills for the disposal of Passaic
       County solid waste from 1987 to 1992. In addition, this
       landfill system is designated under the plan as the
       primary landfill system for the disposal of ash, bypass

                               3
       and non-processible waste associated with the
       operation of the resource recovery facility in the City of
       Passaic from the time the facility is operational until
       the year 2002.

On September 1, 1987, the Commissioner of NJDEPE,
Richard T. Dewling, certified Passaic County's Plan
Amendment 4-1987 in part (hereinafter "Dewling
Certification"). Dewling approved the use of Chambers'
landfills from 1987 through 1992. However, he rejected
PCUA's plan to rely on Chambers' landfills as the primary
site for waste disposal between 1992 and 2002 because the
Plan's dependence on an out-of-state landfill for long-term
solid waste disposal was contrary to Passaic County's
obligation to develop in-county facilities for waste disposal.

Commissioner Dewling explained:

       N.J.S.A. 13:1E-21(b)3 places a legal obligation on each
       district to plan for sufficient available suitable in-
       county disposal sites. . . . [T]he only solution to the
       long-term disposal needs of Passaic County is the
       development of in-county facilities or to secure
       interdistrict agreement with other New Jersey counties.
       In light of these factors, and [to] the extent that Passaic
       County has failed to meet its planning obligations
       pursuant to N.J.S.A. 13:1E-21(b)3, the Department
       cannot approve primary dependence upon out-of-state
       residual disposal capacity for the period 1993 to 2002.

       ******************************

       Amendment 4-1987 is hereby modified and approved to
       include within the district plan the designation of the
       Chambers Development Company, Inc., landfill system
       to Pennsylvania and other states as a component of
       Passaic County's contingency plan for the disposal of
       ash, by-pass and non-processible waste associated
       with the operation of the Passaic County resource
       recovery facility from the time the facility is operational
       until the year 2002. Further, within forty-five days of
       the date of this certification, Passaic County is directed
       to submit the remainder of its solid waste contingency
       plan in plan amendment form for state level review in
       consideration of the Department's comments of May 7,

                                  4
       1987 concerning the county's draft submission. More
       specifically, the remainder of the plan should address
       in-county residual landfill development, the
       development of interdistrict agreements on an
       interim/emergency basis, and the identification of
       alternate land filling options.

From 1987 through 1992, PCUA utilized Chambers'
landfills as Passaic County's primary solid waste disposal
site in accordance with the fully approved Initial
Agreement. Apparently, during most of the period of the
Initial Agreement, Passaic County never proposed any
subsequent plan amendment or attempted to remedy the
deficiency identified by Commissioner Dewling.
Consequently, PCUA had no in-state primary plan to
present to NJDEPE despite the approach of the end of the
Initial Term of the agreement with Chambers.

In early 1992, PCUA began soliciting interest from
disposal companies including Chambers, for a new 15-year
disposal agreement which would handle the county's
municipal waste. In addition, PCUA asked Chambers to
renegotiate the disposal rates set forth in the Long-Term
Agreement. Although renegotiations did begin, they proved
fruitless.

On August 15, 1992, PCUA entered into a Memorandum
of Understanding ("MOU") with Empire Sanitary Landfill,
Inc. Under the MOU, PCUA agreed to deliver all Passaic
County solid waste to Empire's landfill in Eastern
Pennsylvania for a period of 15 years. The Empire MOU,
like the prior agreement with Chambers, was subject to the
review, amendment and approval of NJDEPE.

While the Passaic County Freeholders and PCUA were
preparing to submit the Empire MOU to NJDEPE,
Chambers learned of the Empire MOU and filed a complaint
in the district court for the Western District of Pennsylvania
seeking to enjoin the PCUA from proceeding with Empire.
Chambers alleged that the MOU amounted to an
anticipatory breach by PCUA of the Long Term Agreement
it had with Chambers. Chambers also alleged that PCUA
was equitably estopped from entering into a contract with
Empire.

                                5
Chambers and PCUA filed cross-motions for summary
judgment. The PCUA's motion was based on its argument
that the Dewling Certification was a rejection of the Long-
Term Agreement and that PCUA was free to explore
alternative landfill options pursuant to the directive
contained in Commissioner Dewling's certification.

On November 20, 1992, the district court granted
summary judgment in favor of Chambers on its anticipatory
breach of contract claim. The district court held that the
Long-Term Agreement's validity did not depend upon
whether the RRF was ever built. It then held:

       Because use of Chambers' landfills is approved as a
       contingency, and because NJDEPE has approved no
       other plan for disposal of solid waste in the 1992-2002
       period, PCUA is obligated both under its Long-Term
       Agreement and under New Jersey state law to continue
       to use Chambers' landfills.

(November 11, 1992 Dist. Ct. Opn. at 9). The district court
noted that no damages for breach had occurred because
the Long-Term Agreement was not to take effect until
December 1, 1992, and it granted a permanent injunction,
with the following caveat:

       This Court cannot and is not attempting, by issuance
       of a permanent injunction, to bind NJDEPE, which has
       the statutory duty to regulate the disposal of solid
       waste in New Jersey. NJDEPE approved the use of
       Chambers' landfill as a contingency for the period
       1992-2002 and there is nothing of record to indicate
       that until November 6, 19921, PCUA has attempted to
       obtain approval for any other method of disposal.
       Absent a contrary direction from NJDEPE, Passaic
       County is bound to honor its contract with Chambers. 2
_________________________________________________________________

1. November 6, 1992 is the date when PCUA submitted the MOU with
Empire to NJDEPE for approval.

2. Since the district court clearly stated that its order could not be
interpreted to bind the NJDEPE to take any action, the doctrine of
primary jurisdiction is not implicated here. See MCI v. Teleconcepts,
Inc.,
71 F.3d 1086 (3d. Cir. 1995).

                               6
Accordingly, the court worded its injunctive order as
follows:
       [A] permanent injunction is granted to Plaintiff,
       Chambers Development Corporation and against
       Defendant, Passaic County Utilities Authority. Unless
       and until directed to the contrary by a valid
       certification of the [NJDEPE], PCUA shall continue
       operating under the terms and conditions of the Long-
       Term Agreement for the grant and acquisition of a
       license of ash residue waste disposal. Provided,
       however, that nothing in this order shall be construed
       as restricting any proceeding by any party before
       NJDEPE seeking approval or disapproval of any
       primary long-term plan for the disposal of municipal
       solid waste by PCUA.

The district court entered summary judgment in favor of
PCUA on Chambers' equitable estoppel claim because
Chambers could not demonstrate reasonable reliance.

       [A]ny reliance by Chambers on the Long-Term
       Agreement being the primary solid waste disposal plan
       for the entire 1992-2002 period is unreasonable.
       Chambers, as a sophisticated corporation involved in
       negotiations with two governmental entities, could not
       rely on the contingent approval of the Long-Term
       Agreement as the equivalent of primary approval.

Neither party appealed any portion of the district court's
November 20, 1992 decision.

Before the district court issued its injunction, NJDEPE
notified PCUA that it had not yet come forward with an in-
state, primary disposal solution. Commissioner Scott
Weiner wrote:

       Passaic County currently has no disposal plan in place
       and the long-term use of out-of-state disposal was
       authorized only within the context of contingency plan
       backup use as stated within the Department's
       September 1, 1987 certification. Therefore, the Passaic
       County Plan is deficient with respect to N.J.S.A. 13:1E-
       21(b)3.

                                7
Despite this reminder that it was not in compliance with
the requirement for an in-state disposal facility, PCUA
submitted the Empire MOU to NJDEPE for review and
approval on November 6, 1992. On December 7, 1992, the
Commissioner of NJDEPE formally ordered PCUA to:

       Submit to the Department all supporting documents
       with respect to its proposed plan certification including
       the Memorandum of Understanding and contract with
       Empire as well as the long-term disposal strategy
       previously required by the Department's September 11,
       1992 Plan Certification and any other justifications to
       support this contract by January 9, 1992.

On the same day, the Commissioner extended the
Chambers arrangement for one year until the regulatory
process was completed, and PCUA executed a contract with
Empire.

On or about December 4, 1992, Chambers filed an
application for post judgment relief with the district court
seeking a temporary restraining order against PCUA's
approval of a contract with Empire. In an Order, dated
February 1, 1993, the district court denied the restraining
order, but indicated that it would entertain a motion
seeking the revocation of PCUA's action or another remedy.
While Chambers was proceeding on its "post-judgment"
actions, PCUA was proceeding with the approval process
with NJDEPE for the Empire Contract. On December 17,
1992, Passaic County submitted a Verified Petition to
NJDEPE seeking approval of Empire as Passaic County's
primary disposal plan. In seeking that approval, PCUA took
the position that Commissioner's Dewling Certification
approved Chambers "only as a contingency plan in the
absence of any other disposal strategy approved by the
DEP."

On April 8, 1993, NJDEPE agreed to review the Empire
arrangement, contingent upon PCUA also submitting a
long-term, in-state disposal plan. On August 20, 1993,
PCUA participated in a status conference with the then
Acting Commissioner of NJDEPE, Jeanne M. Fox. At that
conference, PCUA stated that "[t]here is no existing out-of-
state contract [with Chambers] and that fact has been

                               8
recognized by Passaic County in its submission of this new
plan."

On October 7, 1993, Commissioner Fox approved PCUA's
proposal to designate Empire's out-of-state landfill as
Passaic County's primary disposal mechanism. In
approving the Empire arrangement, Commissioner Fox
stated: "In comparison to the Chambers' Agreement, the
Empire Agreement offers significant savings in the form of
avoided costs for the transportation and disposal of
municipal waste." The Commissioner also wrote that the
Chambers-PCUA Long-Term Agreement "was merely a
contingent arrangement which, for Department purposes,
never took effect." Nonetheless, the Commissioner did
indicate that the Long-Term Agreement was not a
completely dead issue. She wrote: "If . . . legislation is
imposed which renders the Empire Agreement void or
voidable, the Chambers Long-Term Agreement contingency
plan can be activated, pending the institution of the in-
state long-term disposal solution."

Chambers did not seek to have PCUA's contract with
Empire rescinded as suggested in the district court's
February 1, 1993, Order. Instead, Chambers filed a
supplement to the previous summary judgment motion
contending that execution of the MOU and contract with
Empire constituted an actual, rather than an anticipatory,
breach of contract and a breach of the covenant of good
faith and fair dealing. Chambers argued that the law of the
case was that the Long-Term Agreement had been declared
a binding and enforceable contract and that in order to
comply with the district court's order, PCUA was required
to seek approval of the Chambers-PCUA Agreement, not
present a competing contract to NJDEPE for approval. This
time Chambers sought damages in the amount of its
expected lost profits from the balance of the Chambers-
PCUA contract.

PCUA responded that the Initial Agreement was the law
of the case as it was the only plan approved by NJDEPE,
and the district court's order gave it the right to seek
NJDEPE approval of the Empire plan.

The matter was referred to a magistrate judge whofiled
a Report and Recommendation in which he recommended

                                9
that Chambers' motion for summary judgment be denied
and that summary judgment be granted in favor of PCUA
even though PCUA never moved for summary judgment.

On June 29, 1994, the district court adopted the Report
and Recommendation of the magistrate judge. However,
while adopting the magistrate's report and
recommendation, the district court wrote:

       [I]f there were evidence in the record to support
       Chambers' . . . assertion that "[PCUA], as late as 1992
       indicated that the contract would be performed on a
       long-term basis". . . I would find that New Jersey
       precedent on the scope of the duty of good faith
       required a hearing into whether the [PCUA] breached a
       duty of good faith performance of its contract with
       Chambers.

Chambers responded to this statement by filing a motion
under Fed. R. Civ. P. 59(e) seeking to amend the judgment
so as to order an evidentiary hearing on the duty of good
faith performance. That motion was denied on July 19,
1994, and Chambers appealed. (Chambers I).

II.

In Chambers I, a panel of this court unanimously
concluded that the district court's grant of summary
judgment to PCUA was improper because PCUA had never
moved for summary judgment. Id. at 584. The panel
majority also agreed that "there are unresolved material
issues of fact regarding [PCUA's] obligations under the
Chambers unaltered and unrescinded long-term agreement
which can only be resolved by an evidentiary hearing." Id.
at 588. The majority noted that, while the long-term
agreement did not expressly state that it was subject to the
approval of NJDEPE, it nonetheless could not be
implemented unless NJDEPE approved PCUA's amended
plan. Id. Since NJDEPE did not approve PCUA's plan "in
toto", the Dewling Certification was "enigmatic" and "left the
meaning of the Chambers Long-Term Agreement
susceptible to more than one interpretation." Id.
Accordingly, we vacated the district court's grant of
summary judgment and remanded "for further proceedings

                               10
consistent with this opinion, with the privilege to Chambers
to amend its complaint to enable it to present the case in
its current status." Id., at 589. In doing so, we instructed
the district court as follows:

       On remand, the district court should first determine
       the effect of the [Dewling Certification] on the
       Chambers long-term agreement. In connection, it
       should ascertain whether the Authority evinced an
       understanding that the Chambers long-term agreement
       was still binding by commissioning the 1991 Alaimo
       report and other similar reports.3 It should also
       determine as a fact that the Authority's purpose in
       filing its complaint in the New Jersey State Court and
       whether it supported Chambers' contention that it and
       the Authority knew they had a binding contract in
       place, subject only to the Authority's compliance with
       [NJDEPE] certification.4 Finally, the court must
       factually determine whether the Authority was
_________________________________________________________________

3. According to Chambers, PCUA required that Chambers formally
certify, on an annual basis, that its facilities could accommodate the
volume of solid waste contemplated by the full fifteen-year term of the
contract. Chambers claims that it has done so. In any event, in 1991,
PCUA challenged the certifications and an independent consultant,
Alaimo Engineering, was retained to perform a study. The report sought
to determine the capacity of the Chambers landfills. The Report was
prepared for PCUA and it clearly shows that it covered the time period
from 1987 to 2002, the time period of both the Initial Agreement and the
Long-Term Agreement. Chambers argued that the Alaimo report
demonstrates that PCUA expected to use Chambers for waste disposal
after the short-term contract expired. PCUA did not address this
argument in the appeal.

4. In September, 1992, PCUA filed a state court declaratory judgment
action, naming as defendants Chambers, Empire and NJDEPE, seeking
a declaration that it is not liable to perform under the contract after
1992 if such performance is due to the existence of a later-approved
primary disposal alternative; declaring that PCUA may terminate its
contract with Chambers upon payment of damages in accordance with
section 9.3 of the contract; and restraining Chambers from interfering
with PCUA's obligation to secure contractual arrangements to provide
safe, adequate and economical services to its ratepayers and citizens.
Chambers argued that this action demonstrates that PCUA believed that
its contract with Chambers was valid and enforceable.

                               11
       attempting to disengage itself from obligations under
       its long-term contract with Chambers because in 1992
       it could secure a contract with Empire at better prices
       and whether it violated the covenant of good faith and
       fair dealing in so doing.

Id.

III.

On remand, Chambers filed a two count amended
complaint per our opinion. App. at 26-40. Count One
alleged that the Dewling Certification directed PCUA to
identify a New Jersey disposal facility by 1992 and
approved Chambers as the contingent alternative in the
event PCUA failed to identify an in-state disposal facility.
Chambers averred that, by choosing to perform with these
qualifications, PCUA assumed a contractual obligation to
use Chambers as the exclusive out-of-state alternative.
Count Two alleged that PCUA breached the duty of good
faith and fair dealing by convincing NJDEPE to approve the
Empire contract, thus destroying the fruits of the
Chambers-PCUA contract.

PCUA eventually filed a motion for summary judgment in
which it argued that Chambers' amended complaint must
be dismissed on the basis of judicial estoppel. The judicial
estoppel argument had two facets. PCUA first argued that
Chambers had asserted inconsistent positions in two
separate lawsuits. In a lawsuit against another utility
authority involving a Chambers competitor, Chambers had
argued that the contract in question was invalid because it
was made in the absence of public bidding.5 The Chambers-
_________________________________________________________________

5. According to PCUA, in January of 1994, Chambers began suit against
a competitor, Waste Management of Pennsylvania, Inc., in New Jersey
state court, seeking to invalidate a long-term ash disposal contract
between Waste Management and the Essex County Utilities Authority.
Chambers contended that under New Jersey law, county utility
authorities are required to adhere to public-bidding procedures in
awarding any long-term ash disposal contracts. Thus, argued Chambers,
because the Essex County-Waste Management contract was awarded
without public bidding, it was illegal and void. Chambers prevailed in the
trial court and the parties ultimately agreed to dismiss an appeal filed
with the New Jersey appellate court.

                               12
PCUA contract was also reached without public bidding,
and PCUA asserted that Chambers should therefore be
judicially estopped from asserting the validity of its
"contract" with PCUA. Second, PCUA argued that the
amended complaint should be dismissed because
Chambers had represented that it was not seeking
interpretation of the Dewling Certification in an earlier
phase in the lawsuit. PCUA argued that Count One of
Chambers' amended complaint did exactly that and it
should therefore be dismissed.

The summary judgment motion was referred to the
magistrate judge, who recommended that Count One of the
amended complaint be dismissed under the doctrine of
judicial estoppel. He concluded that Chambers had
previously represented that it was not seeking to have the
court interpret the Dewling Certification, but that
Chambers' amended complaint sought just such an
interpretation. Id. at 7-8. The magistrate judge rejected the
first judicial estoppel argument, because the validity of the
agreement had already been established by the district
court and was thus the law of the case.

However, the magistrate judge went even further. He
ruled that Count One should be dismissed "as barred by
the plain meaning of the 1987 certification." Id. at 8 n.7.
The magistrate judge opined that the Dewling Certification
"did not give Chambers an exclusive contract in the 1992-
2002 period" as the out-of-state alternative. Id., at 3 n.2.

The district court adopted the Report and
Recommendation as its opinion and entered an order
dismissing Count One of the amended complaint. As a
result, only the breach of good faith claim asserted in
Count Two remained. Thereafter, the district court denied
requests by both Chambers and PCUA to certify the matter
for immediate interlocutory appeal pursuant to 28 U.S.C.
S 1292(b). Once again, the district court referred the matter
to the magistrate judge, who recommended that
certification be denied, and reiterated his view that the
"plain meaning of the Dewling Certification precludes the
claim asserted in Count One." February 11, 1997 Report
and Recommendation at 1. He stated:

                               13
       Neither side sets forth any evidence they have obtained
       in discovery, evidence they have sought in discovery, or
       any suggestion as to what evidence might exist that
       would allow a court to construe Dewling's certification
       in any manner other than by examining the four
       corners of the certification.

Id.

This Report and Recommendation was also adopted by
the district court. Thereafter, Chambers filed this petition
for mandamus, asserting that the district court's holding
that the "plain meaning of the Dewling Certification"
precludes its breach of contract action ignored our mandate
in Chambers I.

IV.

We have authority to issue writs of mandamus pursuant
to the All Writs Act, 28 U.S.C. S 1651(a). Hahnemann
University Hospital v. Edgar, 74 F.3d 456, 460 (3d Cir.
1996). That Act states "[t]he Supreme Court and all courts
established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law." 28 U.S.C. S 1651(a). Traditionally, the writ of
mandamus has been used "to confine an inferior court to a
lawful exercise of its prescribed jurisdiction or to compel it
to exercise its authority when it is its duty to do so." Will v.
Calvert Fire Ins. Co., 437 U.S. 655, 661 (1978). The writ is
a drastic remedy that "is seldom issued and its use is
discouraged." Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d
Cir. 1988). Moreover, it is within a court's discretion to
refrain from issuing the writ even when the requirements
for mandamus are technically satisfied. The availability of
the writ "does not compel its exercise." Id. at 1070.

       The writ of mandamus is a drastic remedy that a court
       should grant only in extraordinary circumstances in
       response to an act amounting to a judicial usurpation
       of power. Given its drastic nature, a writ of mandamus
       should not be issued where relief may be obtained
       through an ordinary appeal. Thus, in addition to the
       jurisdictional prerequisite inherent in the language of

                               14
       section 1651(a),6 two additional prerequisites for
       issuance of a writ are: (1) that petitioner have no other
       adequate means to attain the desired relief, and (2)
       that petitioner meets its burden of showing that its
       right to the writ is clear and indisputable. Even when
       these prerequisites are met, issuance of the writ is
       largely discretionary, bearing in mind the unfortunate
       consequence of making the judge a litigant.7

Hahnemann University Hospital v. Edgar, 74 F.3d at 462
(citations and internal quotations omitted).

Nonetheless, in appropriate circumstances, the issuance
of the writ is the "obvious" remedy. Blasband v. Rales, 979
_________________________________________________________________

6. Under the All Writs Act, the writ of mandamus can be issued where
"necessary or appropriate in aid of [the court's] jurisdiction." 28 U.S.C.
S 1651(a). However, to satisfy the jurisdictional prerequisite, it is not
necessary that the action in which the writ is sought be pending in the
court asked to issue the writ. United States v. Christian, 660 F.2d 892,
894 (3d Cir. 1981). Rather, it is only required that the case may at some
future time come within the court's appellate jurisdiction. Id. Here, the
district court has diversity jurisdiction over the underlying breach of
contract action and, therefore, this court "potentially has jurisdiction
over the case and therefore has jurisdiction under the All Writs Act to
consider" Chambers' petition for a writ of mandamus. Hahnemann
University Hospital v. Edgar, 74 F.3d at 460.

7. The "unfortunate consequence of making the judge a litigant" is no
longer a factor to be considered in exercising our discretion whether to
grant the writ. The 1996 amendments to Fed. R. App. P. 21 eliminated
the role of the district court judge as a respondent. The Advisory
Committee Notes to the 1996 amendments provide:

       In most instances, a writ of mandamus . . . is not actually
       directed to a judge in a more personal way than is an order
       reversing a court's judgment. Most often a petition for a writ of
       mandamus seeks review of the intrinsic merits of a judge's action
       and is in reality an adversary proceeding between the parties. See,
       e.g., Walter v. Columbia Broadcasting System, Inc., 443 F.2d 33
(7th
       Cir. 1971). In order to change the tone of the rule and of mandamus
       proceedings generally, the rule is amended so that the judge is not
       treated as a respondent.

However, the court of appeals can "invite or order the trial judge to
respond," and the trial judge "may request permission to respond. . . ."
Fed. R. App. P. 21(b)(4).

                               15
F.2d 324, 328 (3d Cir. 1992). For example, mandamus is
appropriate when a district court has failed to adhere to the
mandate of an appellate court.8Id.; see also Delgrosso v.
Spang & Co., 903 F.2d 234, 237 (3d Cir. 1990); Citibank,
N.A. v. Fullam, 580 F.2d 82, 86-87 (3d Cir. 1978). Appellate
courts "have uniformly granted such writs where .. . the
district court has failed to adhere to an order of the court
of appeals." Citibank, N.A. v. Fullam, 580 F.2d at 86-87.

       A federal district court has a clear duty to comply
       with an order decreed by a panel of this circuit. Where
       the district court has failed to comply with such an
       order, we have authority under S 1651 to issue a writ of
       mandamus to compel the district court to follow our
       previous order. Any other rule would severely jeopardize
       the supervisory role of the courts of appeals within the
       federal judicial system.

Id. Moreover, district courts "must implement both the
letter and spirit of the mandate, taking into account [our]
opinion and the circumstances it embraces." Delgrosso v.
Spang & Co., 903 F.2d at 240. When we direct the district
court "to act in accordance with [our] opinion . . . the
_________________________________________________________________

8. The mandate of an appellate court establishes the law binding further
action in the litigation by another body subject to its authority. Finberg
v. Sullivan, 658 F.2d 93, 97 n.5 (3d Cir. 1981) (citation and internal
quotations omitted). Functionally, the mandate is"the formal vehicle for
conveying the terms of our disposition to the District Court." Clarke v.
United States, 915 F.2d 699, 716 (D.C. Cir. 1990). As a procedural
matter, the mandate is issued by the Clerk of Court and usually consists
of a certified copy of the judgment, a certified copy of the opinion of
the
court, if any, and any directions as to costs. Fed. R. App. P. 41(a).
Thus,
the issuance of the mandate "is largely a ministerial function," Finberg
v. Sullivan, 658 F.2d at 97 n.5, that follows automatically 7 days after
the expiration of the time for filing of a petition for rehearing, unless
stayed. Fed. R. App. P. 41(a). As a practical matter, "[f]or most
purposes,
the entry of judgment, rather than the issuance of the mandate, marks
the effective end to a controversy on appeal." Finberg, at 97 n.5; see
also
Clarke v. United States, 915 F.2d at 716 ("[O]ur issuance of the mandate
is wholly separate from our consideration of the merits. . . .").
Therefore,
"our circuit recognizes the minimal role a court ordinarily plays between
the filing of a decision and the issuance of a mandate." Humphreys v.
Drug Enforcement Administration, 105 F.3d 112, 117 (3d Cir. 1996).

                               16
opinion becomes part of the mandate and must be
considered together with it." Id.

Here, on remand, the district court held that the"plain
meaning" of the Dewling Certification precludes Chambers'
breach of contract claim. As noted above, in Chambers I, we
held that the Dewling Certification "left the meaning of the
Chambers long-term contract susceptible to more than one
interpretation." Chambers, 62 F.3d at 588. To illustrate the
ambiguity in the Certification we posed the following query:

       Did the certification mean that the Chambers contract
       would be effective in all its terms in the event PCUA
       failed to develop in-state waste disposal options? Or
       did it mean the certification effectively rendered the
       long-term agreement a nullity permitting it to be
       replaced at the will and whimsy of the Authority? This
       ambiguity creates questions of fact susceptible to more
       than one meaning which preclude summary judgment.
       Therefore, extrinsic evidence that objectively will
       illuminate its meaning, especially the conduct of the
       parties, will be helpful.

Id. (emphasis added). We instructed the district on remand
to "first determine the effect of the [Dewling Certification] on
the Chambers long-term agreement" and to "ascertain
whether the [PCUA] evinced an understanding that the
Chambers long-term agreement was still binding by
commissioning the 1991 Alaimo report and other similar
reports." Id. at 589. It should be obvious that, had we
concluded that the contract could be enforced as a matter
of law with no extrinsic evidence as to intent, we would not
have held as we did. On the contrary, we determined that
the Dewling Certification was ambiguous and that extrinsic
evidence was necessary to determine its meaning insofar as
the Long Term Agreement between Chambers and PCUA
was concerned. Despite that holding, the district court
ruled that the "four corners of the [Dewling] certification,"
were so clear as to bar Chambers' breach of contract claim
as a matter of law. That holding is so clearly contrary to
our mandate that very little further discussion is required.
Thus, in the usual situation, we could end our analysis
having concluded that the district court ignored both the
letter and spirit of our mandate.

                               17
This is not, however, the usual situation, and we must go
further if we are to properly align the facts in this "cube."
The district court dismissed the breach of contract action
on the alternative theory of judicial estoppel. In fact, the
Report and Recommendation that the district court adopted
relied almost exclusively upon that doctrine to justify the
dismissal of Count One. The magistrate judge stated:

       PCUA is correct in asserting that judicial estoppel
       requires dismissal of Count One of the Amended
       Complaint on grounds other than Chambers' assertion
       in New Jersey state court that solid waste disposal
       contracts require public bidding. To avoid dismissal or
       transfer of this matter, Chambers represented to the
       Court that it was not seeking interpretation of
       Commissioner Dewling's 1987 certification of the Short-
       Term Agreement and contingent approval of the Long-
       Term Agreement in a manner that would obstruct the
       NJDEPE from determining where Passaic County's solid
       waste should go in the 1992-2002 period. Count One of
       the Amended Complaint asks exactly that. Chambers
       should be held bound by its representations, and the
       Court should dismiss Count One of the Amended
       Complaint.

December 11, 1996 Report and Recommendation at 7-8.
The magistrate judge's erroneous conclusion that the
Dewling Certification could be enforced as a matter of law
was discussed in only two footnotes. See Id. at 3 n.2 and 8
n.7; see also February 11, 1997 Report and
Recommendation at 1.

It is "axiomatic" that, on remand for further proceedings,
the "trial court must proceed in accordance with the
mandate and law of the case as established on appeal."
Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943,
949 (3d Cir. 1985). However, our mandate does not prohibit
the district court from considering new issues raised after
remand. A district court "may consider, as a matter of first
impression, those issues not expressly or implicitly
disposed of by the appellate decision." Id. at 950. Therefore
the district court was "free to make any order or direction
in further progress of the case, not inconsistent with [our]
decision . . . as to any question not settled by the decision"

                               18
on remand. Id. The doctrine of judicial estoppel was only
asserted after our remand. Nevertheless, Chambers argues
that the district court's ruling on judicial estoppel is
inconsistent with our mandate and that we can therefore
address the merits of that decision under our mandamus
jurisdiction. Chambers' Br. at 30-32. Chambers relies upon
the following language from Chambers I:

       The concurrence attaches some significance to DEP's
       1993 approval of the Empire contract. This approval
       had no effect on the Authority's obligations under the
       Chambers long-term contract. DEP's approval of the
       Empire contract signifies only that the Empire contract
       conforms to the New Jersey waste disposal plan.

Chambers, 62 F.3d at 588 n.13. In contrast, the district
court adopted the following statement of the magistrate
judge:

       For a Court to tell a party that despite the real world
       approval of the Empire Agreement by the NJDEPE the
       NJDEPE is judicially deemed to have approved
       Chambers interferes with the validity of the operations
       of the NJDEPE every bit as much as injunctive relief,
       since it essentially tells the solid waste authorities that
       NJDEPE certification is worthless unless approved by
       the court.

December 11, 1996, Report and Recommendation, at 8 n.8.
Chambers now argues that this statement is inconsistent
with our conclusion that its breach of contract claim does
not interfere with NJDEPE's approval of the PCUA-Empire
contract. However, we can not address Chambers'
argument unless it comes within our mandamus
jurisdiction.

A.

Our jurisdiction to review the propriety of the district
court's grant of summary judgment on a petition for a writ
of mandamus is a difficult question. Since the court
granted summary judgment on Count One of Chambers'
amended complaint, Count Two (breach of good faith and
fair dealing) remains. Mandamus is an appellate power,

                                19
that is "realistically a form of interlocutory appeal," Martin
v. United States, 96 F.3d 853, 854 (7th Cir. 1996). However,
it is "different in kind from an appeal." Madden v. Myers,
102 F.3d 74,77 (3d Cir. 1996). Mandamus "constitutes a
procedural mechanism through which a court of appeals
reviews a carefully circumscribed and discrete category of
district court orders." Id. In distinguishing between
mandamus and appellate jurisdiction, we have said:

       The practical difference between appellate jurisdiction
       and mandamus jurisdiction is the standard of review.
       Our standard of review under mandamus jurisdiction
       is exceedingly narrow; our standard of review under
       appellate jurisdiction varies depending on the issue
       that we are called upon to review. Accordingly,
       mandamus jurisdiction affords an appellate court less
       opportunity to correct district court error in the case
       before it and less opportunity to provide guidance for
       future cases. Moreover, comity between the district and
       appellate courts is best served by resort to mandamus
       only in limited circumstances. Review under appellate
       jurisdiction is therefore preferable to review under
       mandamus jurisdiction.

In re Ford Motor Co., 110 F.3d 954, 964 (3d Cir.
1997)(citation omitted). Thus, mandamus is not a
substitute for appeal and a writ of mandamus will not be
granted if relief can be obtained by way of our appellate
jurisdiction. Id. at 957. Mandamus is "disfavored because
its broad use would threaten the [congressional] policy
against piecemeal appeals." In re School Asbestos Litigation,
977 F.2d 764, 772 (3d Cir. 1992)(citing Kerr v. United
States District Court, 426 U.S. 394, 403 (1976). 9 Here, the
_________________________________________________________________

9. For example, discovery orders are generally not appealable, Smith v.
BIC Corp., 869 F.2d 194, 198 (3d Cir. 1989). Therefore, mandamus is
the appropriate jurisdictional vehicle to review disclosure of documents
and information when privilege is asserted. See Rohne-Poulenc Rorer Inc.
v. Home Indemnity Co., 32 F.3d 851, 861 (3d Cir. 1994) (discussing
privilege or other interests of confidentiality); Haines v. Liggett Group,
Inc., 975 F.2d 81, 89 (3d Cir. 1992) (discussing attorney-client privilege
and work product doctrine protections); Westinghouse Elec. Corp. v.
Republic of the Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991)(same);

                               20
grant of summary judgment was interlocutory and notfinal
within the meaning of 28 U.S.C. S 1291. See Communication
Workers of America, AFL-CIO v. American Telephone &
Telegraph Co., 932 F.2d 199, 205 (3d Cir. 1991) ("[A]
decision is final within section 1291 when it ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment.").10 Further, the district court
_________________________________________________________________

Sprock v. Peil, 759 F.2d 312, 314-15 (3d Cir. 1985)(discussing work
product doctrine protections); Bogosian v. Gulf Oil Corp., 738 F.2d 587,
591 (3d Cir. 1984)(same); see also Hahnemann Univ., 74 F.3d at 461
(discussing possible mandamus jurisdiction to review claim that
documents were protected by, inter alia, a state law psychotherapist-
patient privilege); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483-84
(3d Cir. 1995) (discussing mandamus jurisdiction over review of terms of
a protective order); Smith v. BIC Corp., 869 F.2d at 198-99 (discussing
the collateral order doctrine in the context of a review of a claim that
disputed documents contained trade secrets requiring protection);
Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987)
(discussing mandamus jurisdiction over review of a protective order).

We have exercised mandamus jurisdiction over privilege and work
product issues because we have found that "appealing [those] issues
after final judgment is ineffective," In re Ford Motor Co., 110 F.3d at
962,
for the simple and obvious reason that "compliance with the production
orders . . . destroys the right sought to be protected." Bogosian, 738
F.2d
at 591. In other words, mandamus review is appropriate because,
without it, the petitioner has no other remedy.

Recently, we have adopted the view that we do have appellate
jurisdiction over attorney-client privilege and work product doctrine
protection issues under the collateral order doctrine. In re Ford Motor
Co., at 964. Nonetheless, our decision in Ford Motor Co. makes it clear
that mandamus remains an appropriate jurisdictional mechanism to
review orders compelling the disclosure of privileged and confidential
information. Id.; see also Smith v. BIC Corp., 869 F.2d at 198 (holding
that discovery orders can, assuming the respective requirements are
met, be reviewed either under the collateral order doctrine or by way of
a petition for a writ of mandamus).

10. Both Chambers and PCUA agree that Count Two of the amended
complaint remains outstanding. Nonetheless, we have a conceptual
problem in understanding how a count alleging a breach of good faith
and fair dealing, which is inherent in the contract claim, can survive a
finding that the breach of contract claim is barred by the plain meaning

                               21
declined to certify the summary judgment order as to Count
One for immediate interlocutory appeal pursuant to 28
U.S.C. S 1292(b). The district court's order dismissing
Count One is not a collateral order under Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and
its progeny.11 Moreover, Chambers has an adequate
remedy. It can seek appellate review of the judicial estoppel
ruling when Count Two is finally adjudicated. The only
consequence of our refusal to review the dismissal of Count
One now is that Chambers will incur further expense and
delay if it were to prevail in an appeal of the judicial
estoppel ruling following resolution of Count Two. We have
never rested the exercise of our jurisdiction upon such
inconvenience. Standing alone, Chambers' inconvenience
does not justify our review of the summary judgment
decision on a petition for mandamus. Mandamus is
generally an inappropriate vehicle to review the district
court's denial of a summary judgment motion because the
litigation continues. Communication Workers of America,
932 F.2d at 210.

Admittedly, Chambers faces the reverse of the situation
faced by the petitioner in Communication Workers.
Chambers seeks mandamus relief from an order granting
summary judgment to PCUA on one of its claims, while the
petitioner in Communication Workers, sought review of an
order denying its motion for summary judgment. However,
_________________________________________________________________

of the Dewling Certification and by judicial estoppel. The obligation to
deal in good faith arises out of the underlying contract. Thus, if the
breach of the underlying contract claim no longer survives, we are at a
loss to understand how the duty to deal in good faith survives
independently of the breach of contract action. However, Chambers does
not argue that this dismissal of Count One was tantamount to a final
order dismissing the entire contract action. Thus, we do not consider
this conceptual problem here.

11. The collateral order doctrine "provides a narrow exception to the
general rule permitting appellate review only offinal orders. An appeal of
a nonfinal order will lie if (1) the order from which the appellant
appeals
conclusively determines the disputed question; (2) the order resolves an
important issue that is completely separate from the merits of the
dispute; and (3) the order is effectively unreviewable on appeal from a
final judgment." In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997).

                               22
for purposes of our jurisdictional analysis here, that is a
distinction without a difference. The order before us, and
the one at issue in Communication Workers, are both
interlocutory in nature. Hence, the general policy against
granting mandamus review to an order denying a motion
for summary judgment applies with equal force here.
Normal appellate review is available upon the completion of
this litigation.

We did review a district court's denial of a summary
judgment motion in a petition for mandamus in In re
Asbestos School Litigation, 46 F.3d 1284 (3d Cir. 1994).
There, petitioner asserted that the district court's denial of
its motion for partial summary judgment "has caused and
is continuing to cause irreparable harm to its First
Amendment rights." Id. at 1286. We relied upon N.A.A.C.P.
v. Claiborne Hardware Co., 458 U.S. 886 (1982), to hold
that the petitioner could not, "consistent with the First
Amendment," be held liable. Id. Accordingly, we held that
the district court's denial of Pfizer's partial summary
judgment motion was "clearly in error," and found that the
issuance of a writ of mandamus was "appropriate to
prevent the harm to First Amendment rights that would
occur if review . . . had to wait until a final judgment" is
entered. Id.

Chambers does not, and cannot, claim that any
constitutional right is being impaired by the district court's
judicial estoppel decision. Thus, the extraordinary
circumstances present in In re Asbestos School Litigation
are not present here. In fact, in In re Asbestos School
Litigation we reaffirmed our general rule that mandamus is
not the appropriate mechanism for review of a district
court's denial of a motion for summary judgment. Id. at
1295. We expressly noted Asbestos School Litigation was
"dramatically different" from Communication Workers
because in Communication Workers, our refusal to subject
the denial of the summary judgment motion to mandamus
review merely required AT&T to go to trial, while in
Asbestos School Litigation, a refusal to grant mandamus
review "would subject [petitioner] to a continuing
impairment of its First Amendment freedoms." Id.

                               23
Nevertheless, despite our narrow scope of review under
mandamus, and despite the interlocutory nature of the
district court's judicial estoppel ruling, we conclude that it
is both appropriate and necessary that we address the
propriety of the district court's judicial estoppel ruling now
because that issue is an intrinsic component of the
question that is properly before us on the mandamus
petition. See Schlagenhauf v. Holder, 379 U.S. 104, 110
(1964). In Schlagenhauf, the Court approved the use of
mandamus to decide the "basic, undecided" question of
whether a district court could order the mental and
physical examination of a defendant under Fed. R. Civ. P.
35(a). At the time of that decision, Rule 35(a) provided as
follows:

       In an action in which the mental or physical condition
       of a party is in controversy, the court in which the
       action is pending may order him to submit to a
       physical or mental examination by a physician. The
       order may be made only on motion for good cause and
       upon notice to the party to be examined and to all
       other parties and shall specify the time, place, manner,
       conditions, and scope of the examination and the
       person or persons by whom it is to be made.

Id. at 106.

Schlagenhauf was the driver of a bus and was named as
one of a number of defendants in a diversity personal injury
action in which passengers sought damages for injuries
they sustained when the bus collided with the rear of a
tractor-trailer. Upon a motion of the plaintiffs, the district
court ordered Schlagenhauf to submit to mental and
physical examinations. Schlagenhauf applied to the court of
appeals for a writ of mandamus against the district court
judge, seeking to have the order set aside. The court of
appeals held that its mandamus power allowed it to decide
whether a district court had the power to order a defendant
to submit to a mental and physical examination. Id. In
addition, the court of appeals examined the "in controversy"
requirement of Rule 35 and determined it adversely to
Schlagenhauf. However, the court held that it did not have
the power to determine the "good cause" requirement of
Rule 35, because it believed that it was not appropriate to

                               24
review that question on a petition for mandamus. Id.
Therefore, the court of appeals declined to issue the writ of
mandamus.

The Supreme Court concluded that the court of appeals
could exercise mandamus review over the question of
whether "good cause" had been shown for the examination
though that question was not ordinarily within the scope of
mandamus review. Id. at 111. The Court held that the
"good cause" question was proper for mandamus review at
that time because it was part of a case brought before the
Court "on a substantial allegation of usurpation of power in
ordering any examination of a defendant," and, therefore,
should have been decided by the appellate court. Id. In
short, the Court found that "the Court of Appeals had
power to determine all of the issues presented by the
petition for mandamus." Id. Indeed, the Court found that
the court of appeals should have determined the"good
cause" issue in order, not only to settle "new and important
problems," but also "so as to avoid piecemeal litigation." Id.

Although Schlagenhauf is not "on all fours" with the
circumstances before us, it is instructive. Here, the district
court's judicial estoppel holding is so tethered to its
disregard of our mandate that we can not remedy the latter
without addressing the former. See 16 CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE S 3934 (2d ed. 1996). As we discuss below, our
mandate left no room for judicial estoppel as applied by the
district court on remand. Accordingly, failure to address the
propriety of the district court's judicial estoppel rationale
would reduce the mandate we issued in Chambers I to a
nullity and jumble this "cube" yet again with another turn
in the wrong direction. Moreover, since the judicial estoppel
issue would undoubtedly come before us after Count Two is
resolved, we face the prospect that we will have these same
parties before us for a third time, arguing an issue that is
implicit in the mandamus petition now before us. See
Schlagenhauf, 379 U.S. at 110 (special circumstances can
extend mandamus power in order to avoid piecemeal
litigation and resolve "new and important problems").

                               25
Accordingly, we will review the district court's judicial
estoppel decision.12

B.

       Judicial estoppel, sometimes called the doctrine
       against the assertion of inconsistent positions, is a
       judge-made doctrine that seeks to prevent a litigant
       from asserting a position inconsistent with one that she
       has previously asserted in the same or in a previous
       proceeding. It is not intended to eliminate all
       inconsistencies, however slight or inadvertent; rather, it
       is designed to prevent litigants from playing fast and
       loose with the courts.

Ryan Operations, G.P. v. Santiam-Midwest Lumber Co., 81
F.3d 355, 358 (3d Cir. 1996) (citations and internal
quotations omitted).13 The party asserting the estoppel is
not required to demonstrate detrimental reliance upon the
prior representation. Id. at 360. In addition, the party to be
estopped need not have benefited from its earlier position.
Id. at 361. However, the doctrine will not apply where
inconsistent positions are asserted in good faith or through
inadvertence.

       Asserting inconsistent positions does not trigger the
       application of judicial estoppel unless intentional self-
       contradiction is used as a means of obtaining unfair
       advantage. Thus, the doctrine of judicial estoppel does
_________________________________________________________________

12. Our review of the district court's grant of summary judgment is
plenary. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.), cert.
denied, ___ U.S. ___, 116 S. Ct. 165 (1995). We note that our standard
of review here does not contravene the general policy that mandamus is
not the appropriate jurisdictional method to review a district court
decision based on the exercise of discretion. United States v. Christian,
660 F.2d 892, 896 (3d Cir. 1981).

13. In Ryan Operations, G.P., one member of the panel noted that there
is, apparently, a question as to whether state judicial estoppel law or
federal judicial estoppel law applies in a diversity action. Here, the
magistrate judge's Report and Recommendation recites that the New
Jersey and the federal judicial estoppel rules are consistent. December
11, 1996 Report and Recommendation, at 5 n.4. Neither Chambers nor
PCUA disputes that ruling. 81 F.3d at 359 n.2.

                               26
       not apply when the prior position was taken because of
       a good faith mistake rather than as part of a scheme to
       mislead the court. An inconsistent argument sufficient
       to invoke judicial estoppel must be attributable to
       intentional wrongdoing.

Id. at 362 (citations and internal quotations omitted). The
reason for so limiting the doctrine is straightforward. The
doctrine is intended for those who "act with the intent to
play fast and loose with the courts." Id. at 365.

Here, the magistrate judge wrote:

       To avoid dismissal or transfer of this matter, Chambers
       represented to the Court that it was not seeking
       interpretation of Commissioner Dewling's 1987
       certification of the Short-Term Agreement and
       contingent approval of the Long-Term Agreement in a
       manner that would obstruct the NJDEPE from
       determining where Passaic County's solid waste should
       go in the 1992-2002 period. Count One of the
       Amended Complaint asks exactly that. Chambers
       should be held bound by its representations, and the
       Court should dismiss Count One of the Amended
       Complaint.

December 11, 1996 Report and Recommendation at 8.
There are two problems with the magistrate judge's
conclusion. First, on the purely technical and procedural
level, there are no findings that Chambers intentionally
misrepresented its position so as to "play fast and lose with
the court." For that reason alone, grant of summary
judgment to PCUA was improper unless we assume that
such findings are implicit in the court's ruling. However,
under the facts sub judice, such a finding would be clearly
erroneous because, as we will discuss, it is not supported
by the record. Second, and more importantly, Chambers'
position is in response to, and totally consistent with, our
mandate in Chambers I.

The dispute over the "inconsistent" positions can be
traced to a motion filed by PCUA in 1992 by which PCUA
sought to dismiss Chambers' first complaint. PCUA argued,
inter alia, that Chambers' failure to join NJDEPE as an
indispensable party under Fed.R.Civ.P. 19 was fatal to its

                                27
claim. Chambers responded that NJDEPE was not an
indispensable party because Chambers was not seeking the
rejection or modification of any NJDEPE decision nor was
Chambers seeking to affect NJDEPE's interest in the
administration of its solid waste management planning
system. The district court agreed with Chambers, found
that NJDEPE was not an indispensable party, and
dismissed PCUA's motion.

PCUA argues that Chambers once again assured the
magistrate judge that it was not trying to second-guess
NJDEPE or asking the court to interfere with NJDEPE's
regulatory jurisdiction when Chambers filed its complaint
seeking injunctive relief based upon PCUA's alleged
anticipatory breach. PCUA argues that Count One of the
amended complaint, filed after remand, specifically asked
the court to interpret the Dewling Certification and, by so
doing, asked the district court to interfere with NJDEPE's
regulatory function. The district court agreed and dismissed
Count One.

However, Count One does not implicate NJDEPE's
regulatory authority. The relevant portion of Count One of
the amended complaint provides as follows:

       42. The Chambers Contract was a valid, binding
       contract when executed.

       43. As executed, the Chambers contract obligated
       PCUA to deliver all Passaic County solid waste to the
       Chambers landfills for the final ten years of the
       Contract in the event no incinerator was constructed.

       44. No incinerator was constructed.

       45. The Dewling Certification amounted to a partial
       approval of the Chambers Contract, such that
       Chambers was designated as the exclusive out-of-state
       disposal facility for Passaic County solid waste during
       the final ten years of the Contract, and could only be
       replaced by a suitable in-state disposal facility.

       46. The parties expressly and/or impliedly assented to
       Commissioner Dewling's modifications.

       47. As modified by the Dewling Certification together
       with the parties' express and/or implied assent, the

                                28
Chambers Contract obligated PCUA to utilize
Chambers as the exclusive out-of-state disposal facility
for Passaic County solid waste for the final ten years of
the Contract.

48. Furthermore, as modified by the Dewling
Certification together with the parties' express and/or
implied assent, the Chambers contract obligated PCUA
to refrain from entering into any substitute disposal
contracts with any facility located outside of New
Jersey.

49. In breach of these contractual obligations, PCUA
entered into a substitute disposal contract with
Empire, pursuant to which PCUA agreed to dispose of
Passaic County solid waste at a landfill facility located
in Taylor, Pennsylvania, for a period of time
commencing December 1, 1993 through and beyond
2002, the final year of the Chambers Contract.

50. Starting in and around December 1, 1993, PCUA
began performing under the Empire Contract, and
accordingly ceased disposing of Passaic County solid
waste at the Chambers landfills as required by the
Chambers Contract.

51. PCUA continues to perform under the Empire
Contract, and upon information and belief, has no
intention of performing under any of the obligations set
forth under the Chambers Contract.

52. These actions constitute a complete breach of the
Chambers Contract, in that they have resulted in and
continue to result in a complete abrogation of PCUA's
duty to Chambers to dispose all Passaic County solid
waste at the Chambers landfills until the year 2002,
unless and until PCUA identifies a suitable in-state
facility as directed by the Dewling Certification.

53. PCUA's breach of the Chambers Contract has
caused and continues to cause significant economic
harm to Chambers, including lost profits from the
Chambers Contract, as well as lost profits associated
with contracts with other entities that Chambers has
foregone in the reasonable belief that PCUA intended

                        29
       on utilizing the substantial airspace set aside for
       Passaic County solid waste for the final ten years of the
       Chambers Contract.

Petitioner's App. at 10-12.

Thus, the essence of the averments is that the Dewling
Certification required PCUA to identify an in-state disposal
facility by 1992 and it approved Chambers as a contingent
alternative in the event PCUA failed to identify an in-state
facility. The complaint avers that PCUA was obligated to
use Chambers as its exclusive out-of-state disposal site.
Accordingly, Chambers asserts that PCUA breached its
contract when it entered into a contract with Empire for
out-of-state waste disposal.

This theory of recovery simply does not interfere with
NJDEPE's regulatory functions. Chambers is not asking for
specific performance of its contract with PCUA and it is not
asking that the district court declare the PCUA-Empire
contract void or voidable. Chambers succinctly states:
"Chambers seeks contract damages against PCUA for
bringing about [the] substitution" of Empire for Chambers.
Petitioner's Br. at 27. There is no inconsistency in
Chambers' pre-remand and post-remand positions.
Moreover, we stated as much in Chambers I. There, we
pointed out that even though the parties to this contract
apparently understood that it was subject to the approval
of NJDEPE, neither party saw fit to specify their rights and
obligations if the required approval was never obtained. We
stated the following after noting the conditional nature of
Commissioner Dewling's Certification:

       Chambers first contends that DEP's contingent
       approval of the plan made them the exclusive out-of-
       state disposal facility for Passaic County waste, subject
       only to the development of in-state alternatives. . . .

       Conversely, the Authority maintains that DEP's
       contingent approval of the plan amendment permitted
       it to replace Chambers with any waste disposal
       alternatives.

Chambers I, 62 F.3d at 585. We then observed that the
district court considered "the DEP's contingent plan

                               30
approval sufficient to justify enforcing the Chambers
contract in the absence of DEP approval of some other
plan." Id. at 586. However, we faulted the district court for
not resolving the effect of the 1987 Dewling Certification
upon the Long Term Agreement between Chambers and
PCUA.

       The court, however, did not resolve specifically whether
       DEP's original approval in 1987 made Chambers the
       exclusive out-of-state waste disposal company for
       Passaic County waste after December 1, 1992, should
       PCUA fail to develop in-state waste disposal facilities.
       Nor did it address whether the Authority could seek a
       DEP order authorizing it to use an alternative out-of-
       state waste disposal facility without violating it contract
       with Chambers.

Id. We then remanded with the specific instructions set
forth above. In doing so we specifically allowed Chambers
"the privilege to . . . amend its complaint to enable it to
present the case in its current status." Id ., at 589. We had
hoped that doing so would result in the proper adjudication
of this dispute. However, what has followed has only
confused the matter further. Chambers exercised the
privilege extended in our mandate and amended its
complaint. In doing so it did nothing more than attempt to
have the district court resolve the saga of this continuing
contract dispute by ruling on the effect that the 1987
Dewling Certification had on the Long Term Agreement.
However, rather than comply with the mandate and rule
upon the issues Chambers raised in the amended
complaint, the district court interpreted Chambers'
amendments as playing "fast and lose" with the court and
applied the doctrine of judicial estoppel. That was clearly
error.

We take no position on the merits of the claim Chambers
raises in Count One of its amended complaint. Count One
merely requires the district court to determine the parties'
understanding of the impact of the Dewling Certification on
the Long Term Agreement. That is precisely what we had
ordered in issuing our mandate, and it is precisely what the
district court would have done had it complied with that
mandate.

                               31
V.

Accordingly, we will grant Chambers' petition for a writ of
mandamus, vacate the district court's order granting
summary judgment to PCUA on Count One of Chambers'
amended complaint; and we will remand the case once
again, for further proceedings consistent with this opinion.

                               32
Stapleton, Circuit Judge, concurring:

I agree with the court that the district court's disposition
of Count One of the Amended Complaint is inconsistent
with the prior mandate of this court and that the record
does not support a finding that Chambers has "played fast
and loose" with the court. Ryand Operations, G.P. v.
Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d
Cir.1996). I join the opinion of the court to the extent it is
not inconsistent with the views expressed in my prior
concurring opinion. Chambers Development Company, Inc.
v. Passaic County Utilities Authorities, 62 F.3d 582, 589 (3d
Cir. 1995).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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