Opposition — Shell Oil Co. v. United States

OOOO TETLleee

Office-Supreme Court, U.S.

FILED

No. 80-2044 AUG 4 1981

REERANCE. STEVAS,

CLERK

Iu the Supreme Court of the United States

OcTOBER TERM, 1980

SHELL OIL COMPANY AND HARBOR

TOWING CORPORATION, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

LAWRENCE G. WALLACE

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases:

American Construction Co. v. Jacksonville Ry. 148

U.S. 372

Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & Aroostook R.R., 389 U.S. 327 ..........

Dickinson Vv. Petroleum Corp., 338 U.S. 507 ..........

Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251..

Statutes:

Federal Water Pollution Control Act, 33 U.S.C.

(& Supp. III) 1251 et seq.:

33 U.S.C. (& Supp. II) 13821 ........................

33 U.S.C. (& Supp. III) 1321(c) (1) ............

33 U.S.C. (& Supp. III) 1821(f) ..................

28 U.S.C. (& Supp. III) 2415(b)

Miscellaneous:

H.R. Conf. Rep. No. 91-940, 91st Cong., 2d Sess.

(1970) ‘

Page

owe w

Iu the Supreme Cont of the United Stairs

OCTOBER TERM, 1980

No. 80-2044

SHELL OIL COMPANY AND HARBOR

TOWING CORPORATION, PETITIONERS

Vv,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioners contend that the court of appeals, in

reversing the district court’s dismissal of the govern-

ment’s complaint, erred in holding that the govern-

ment’s suit to recover the costs of oil spilled by peti-

tioners into the navigable waters of the United

States was not time-barred.

1. This is an action by the government under the

Federal Water Pollution Control Act, 33 U.S.C. (&

Supp. III) 1321, to recover the costs of cleaning up an

oil spill. The government’s complaint alleged that

petitioners had spilled oil into the Patapsco River on

August 10, 1975, and that the government had ex-

pended nearly $500,000 in cleaning up this oil from

(1)

2

the waters and surrounding beaches, boats, and booms.

The government’s clean-up operations were completed

on September 12, 1975. This suit was filed on Sep-

tember 6, 1978.

The district court granted petitioners’ motion for

summary judgment and dismissed the complaint as

time-barred. The court held that the three-year limi-

tations period for actions founded upon a tort (28

U.S.C. (& Supp. III) 2415(b)) applies to suits by

the government to recover clean-up costs under the

Federal Water Pollution Control Act; that the govern-

ment’s cause of action arose on the date of the oil

spill; and therefore that the three-year period had ex-

pired before the government had filed its suit.

The court of appeals reversed and remanded for

further proceedings on the government’s complaint

(Pet. App. la-14a). Assuming arguendo that the

three-year limitations period of 28 U.S.C. (& Supp.

III) 2415(b) applied to this action, the court held

that the government’s cause of action under the Fed-

eral Water Pollution Control Act did not accrue until

its clean-up operations had been completed (Pet. App.

5a) and hence that the instant suit was timely filed

within three years of the “undisputed” completion

date of September 12, 1975 (id. at 7a).

2. Because the decision of the court of appeals is

interlocutory in nature, further review at this time

is unwarranted. The decision below merely places

petitioners in the same position they would have oc-

cupied if the district court had denied their motion

for summary judgment in the first instance, and it

is clear that such a denial would not have been sub-

ject to pretrial appeal. The same considerations that

counsel against an interlocutory appeal of the denial

of a summary-judgment motion militate against in-

3

terlocutory review of the present petition by this

Court. Following a final judgment in the district

court and completion of appellate review, petitioners

will be able to raise the statute-of-limitations issue,

together with any other issues concerning their lia-

bility under 33 U.S.C. (& Supp. ITI) 1321(f), in a

single petition for a writ of certiorari.’

3. In any event, the decision below is correct and

does not conflict with any decision of this Court or

of any other court of appeals. Accordingly, review

by this Court is not warranted.

The court of appeals held that the complaint in

this case was timely filed because “[t]he cause of

action [under the Federal Water Pollution Control

Act] for recouping expenses incurred by the govern-

ment does not fully accrue until the government has

completely exercised its option [whether to remove

the spilled oil] and completed the cleanup operation”

(Pet. App. 5a).? This holding is entirely consistent

with the text and operation of the Act.

1 This Court will “not issue a writ of certiorari to review a

decree of the * * * [c]ourt of [a]ppeals on appeal from an

interlocutory order, unless it is necessary to prevent extra-

ordinary inconvenience and embarassment in the conduct of

the cause.” American Construction Co. Vv. Jacksonville Ry.,

148 U.S. 872, 384 (1893). See also, e.g., Brotherhood of

Locomotive Firemen & Enginemen v. Bangor & Aroostook

R.R., 389 U.S. 327 (1967); Hamilton Shoe Co. v. Wolf

Brothers, 240 U.S. 251, 257-258 (1916). To grant review in

the circumstances of this case would entail “the inconvenience

and costs of piecemeal review * * *.” Dickinson v. Petrolewm

Corp., 388 U.S. 507, 511 (1950).

2 Contrary to petitioners’ suggestion (Pet. 5, 7), the court

of appeals did not hold that the three-year limitations period

for tort suits is applicable to actions to recover clean-up costs

under the Federal Water Pollution Control Act. Rather, the

court held only that this case was not time-barred even

4

Under the Federal Water Pollution Control Act,

“(t]he primary duty for cleaning [up] the oil spill,

was of course, upon the [c]ompanies” (Pet. App. 4a;

citations omitted).* In addition, however, the Act

also provides that “[w]henever any oil * * * is dis-

charged * * * into or upon the navigable waters of

the United States * * *, the President is authorized

to act to remove or arrange for the removal of such

oil * * * at any time, unless he determines such

removal will be done properly by the * * * [responsi-

ble private parties].” 33 U.S.C. (& Supp. III)

1321(c)(1) (emphasis added). Thus, the Act ives

“the Executive Branch an option” (Pet. App. 4a) by

authorizing the President, in his discretion, to under-

take to remove the oil “[i]n order to avoid the obvi-

assuming the applicability of the statute of limitations urged

by petitioners. Therefore. the court did not consider the gov-

ernment’s additional arguments that no statute of limitations

applies to this statutory action to recover clean-up costs and

that, if a limitations period is applicable, the action is quasi-

contractual in nature and thus subject to a six-year limit

(Pet. App. 4a).

3 Petitioners claim (Pet. 7-8 & n.6) that polluters are under

no obligation to clean up their oil spills and indeed are not

even permitted to do so in the absence of permission by the

President. In petitioners’ view, the Act imposes upon the

President the affirmative duty to clean up such spills. This

novel contention is inconsistent with the plain language of the

statute, which “authorize[s]” but nowhere requires the Presi-

dent to act. Moreover, the Conference Report, in the sentence

immediately following that quoted by petitioners (Pet. 8 n.6),

makes clear that the statute “is not to be construed to inhibit

or prevent any owner or operator from undertaking whatever

action is necessary to contain or remove an oil discharge.”

H.R. Conf. Rep. No. 91-940, 91st Cong., 2d Sess, 38 (1970).

5

ous consequences of possible delay or ineffectiveness”

by the private parties (id. at 4a). In exercising this

option, “[t]he President may act or decline to act.

* * * [Moreover,] once a government cleanup is

started it can be delayed at the direction of the Presi-

dent. * * * [And g]lovernment action in appropriate

circumstances might be terminated prior to comple-

tion” (id. at 5a).

As a concomitant to this authority, the Act en-

titles the United States to recover actual costs of

removal up to (a) full costs in cases of willful negli-

gence or willful misconduct, or (b) costs within stat-

utory limits in all other cases. 33 U.S.C. (& Supp.

III) 1321(f). Since this cause of action to recover

clean-up costs is grounded on the government’s effort

to remove the oil spill, and since that effort is still in

progress and subject to modification prior to comple-

tion of the clean-up, the “injury” addressed by the

statute does not occur until the removal of the oil

has been finished. Accordingly, the court of appeals

correctly held, consistent with the general law on

statutes of limitations cited by petitioners, that the

government’s cause of action did not accrue until the

removal of the oil had been completed and the statu-

tory injury to the United States had become final.

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

LAWRENCE G. WALLACE

Acting Solicitor General

AuGusT 1981

W ov. Ss. Government printing orrice; 1961 351724 574