Opposition Brief — Pennzoil Co. v. United States, 24 Cl. Ct. 167 (1991) (No. 91-34)

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Iu the Supreme Court of the United States

OCTOBER TERM, 1991

PHILLIPS PETROLEUM Co., ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

PENNZOIL COMPANY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

MARGARET M. SWEENEY

Dirk D. SNEL

ELIZABETH ANN PETERSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Under 43 U.S.C. 1339(a), the Secretary of the In-

terior is authorized to refund certain royalty pay-

ments if a request for a refund “‘is filed * * * within

two years after the making of the payment.” The

question presented in this case is whether the two-

year period runs from the date the payment is made,

or from a later date when the payor determines, on

the basis of a judicial ruling, that the amount of the

payment was incorrect.

(1)

A

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Block v. North Dakota, 461 U.S. 273 (1983) ......... 10

Interstate Natural Gas Ass’n of America V. FERC,

716 F.2d 1 (D.C. Cir. 1983), cert. denied, 465

RS SE LE 3

Office of Personnel Management v. Richmond, 110

a cesnnisinavnonnrcecnaceers 10

Phillips Petroleum Co., 39 1.B.L.A. 393 (1979) ...... 4

United States v. Dalm, 110 S. Ct. 1361 (1990) ...... 8

United States v. Ron Pair Enters., Inc., 489 U.S.

De cuaceseniateenteidinassnases 7

United States v. Wurts, 303 U.S. 414 (1938) ........ 5

Statutes:

Act of Dec. 11, 1919, ch. 5, § 2, 41 Stat. 366 ....... 12

Act of June 27, 1930, ch. 642, 46 Stat. 822 _....... 12

Natural Gas Policy Act of 1978, 15 U.S.C. 3301-

a endnseniionatooennne 3

Outer Continental Shelf Lands Act, 43 U.S.C.

1331 et seq.:

48 US.C. 1881 (a) .......... Jee tN eR NRT 2

48 U.S.C. 1881-1866 ........:...................... abba 2

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43 U.S.C. 1980(a@) .................. 2, 4, 5, 7, 8, 11, 12, 13, 14

Es cncunbantnbetenancberoatons 8

I Tn, a. cs camssenwumereanvovsubeicworaviness 2

Miscellaneous: Page

48 Fed. Reg. 56,448 (1978) ........................-2---ce0.---00- 3

Refunds and Credits Under the Outer Continental

Shelf Lands Act, 88 Interior Dec. 1090 (1981) ..4, 9, 11,

14

Refunds Resulting from Btu Measurement Adjust-

ments, FERC Order No. 399, 49 Fed. Reg. 37,735

ea RS Se ae hc Tr Rae Pte 8 Poet ORE tae 3

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1

PHILLIPS PETROLEUM Co., ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

No. 91-34

PENNZOIL COMPANY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.’ la-

8a) is reported at 923 F.2d 830. The decision of the

United States Claims Court (Pet. App. 13a-24a) is

reported at 17 Cl. Ct. 537. The decision of the

Interior Board of Land Appeals (Pet. App. 25a-55a)

is reported at 96 I.B.L.A. 149. The decision of the

1 References in this brief to “Pet. App.” refer to the ap-

pendix to the petition in No. 91-34.

(1)

2

Minerals Management Service (Pet. App. 64a-67a)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on January 16, 1991. Fet. App. la. A timely pe-

tition for rehearing was denied on April 4, 1991.

Pet. App. 10a-lla. The petitions for a writ of cer-

tiorari were filed on June 28, 1991 (No. 91-1), and

July 3, 1991 (No. 91-34). The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Pursuant to the Outer Continental Shelf Lands

Act (OCSLA), 43 U.S.C. 1331-1356, the Minerals

Management Service (MMS) in the Department of

the Interior leases lands under the control of the

federal government on the outer Continental Shelf *

to oil and gas producers. 43 U.S.C. 1387. Pursuant

to the statute, the leases typically provide for pay-

ment of a royalty to the United States of at least

12.5% of the “amount or value of the production

saved, removed, or sold.” 43 U.S.C. 1337(a) (1) (A).

Section 1339(a) sets forth the circumstances under

which a producer may seek to recover amounts erro-

neously paid to the Secretary as royalties:

2 Section 1331 (a) defines the outer Continental Shelf as

all submerged lands lying seaward and outside of the

area of lands beneath navigable waters as defined in

section 1301 of this title, and of which the subsoil and

seabed appertain to the United States and are subject

to its jurisdiction and control.

As relevant to this case, the “lands beneath navigable waters”

excluded from the outer Continental Shelf under this defi-

nition generally are lands within three miles of the coast

line of each State. See 43 U.S.C. 1301 (a) (2).

3

[W]hen it appears to the satisfaction of the

Secretary that any person has made a pay-

ment to the United States in connection with

any lease under this subchapter in excess of the

amount he was lawfully required to pay, such

excess shall be repaid without interest to such

person or his legal representative, if a request

for repayment of such excess is filed with the

Secretary within two years after the making of

the payment, or within ninety days after August

7, 1953.

2. Petitioners are various oil and gas producing

companies that lease federal lands on the outer Con-

tinental Shelf from MMS. In 1978, the Federal En-

ergy Regulatory Commission (FERC) issued regu-

lations pursuant to the Natural Gas Policy Act of

1978, 15 U.S.C. 3301-3432, that changed the method

of measuring and valuing natural gas production. 43

Fed. Reg. 56,448. As applied to petitioners, the new

regulations generally entitled them to charge a higher

price for the natural gas produced under their off-

shore leases; accordingly, petitioners paid higher roy-

alties to the United States. A group of natural gas

purchasers sought judicial review of FERC’s regu-

lations and eventually succeeded in having them

overturned. Interstate Natural Gas Ass’n of

Amercia v. FERC, 716 F.2d 1 (D.C. Cir. 1983),

cert. denied, 465 U.S. 1108 (1984) (INGAA). <Ac-

cordingly, petitioners were required to refund to the

purchasers the excess amounts they had charged

under the invalidated FERC regulations. See Re-

funds Resulting From Btu Measurement Adjust-

ments, FERC Order No. 399, 49 Fed. Reg. 37,735

(1984).

3. Petitioners, in turn, sought a refund from

MMS of the excess royalties they had paid to the

4

United States while the FERC regulations were in

effect. Relying on Section 1339(a), MMS generally

determined that refunds were not available to the

extent that petitioners sought refunds for amounts

paid more than two years before they filed their re-

fund claims. Pet. App. 64a-67a.° MMS relied heav-

ily on a previously published opinion of the Solicitor

of the Interior, which had concluded that the two-

year period described in Section 1339(a) runs from

the date of payment in situations like this. See Re-

funds and Credits Under the Outer Continental

Shelf Lands Act, 88 Interior Dec. 1090 (1981)

(OCSLA Refunds & Credits). Relying on Phillips

Petroleum Co., 39 I.B.L.A. 393 (1979), the Solicitor

explained in OCSLA Refunds & Credits that the pur-

pose of Section 1339 is “to require lessees to verify

their accounts promptly.” 88 Interior Dec. at 1100.

He also considered the “special case * * * presented

by a retroactive change in the regulated price of oil

or gas” and concluded that where FERC agrees to

lower the price retroactively, “[t]he two-year limit

still applies from the date of payment; but the lessee

can interrupt the period by notifying the Depart-

ent in writing of the challenge.” /d. at 1101-1102.

Consistent with that interpretation, MMS concluded

in the instant case that “[a] payor may not post

facto toll the statute by waiting judicial resolution

to notify the Department.” Pet. App. 66a.

® MMS did determine that the two-year period described

in Section 1339(a) was tolled by a letter it issued on Novem-

ber 9, 1983, announcing that it would issue instructions for

seeking refunds based on INGAA. Accordingly, the only

claims at issue in this case are for royalties paid before No-

vember 9, 1981, with respect to which the two-year period

already had run before MMS issued its November 9, 1983,

letter. See Pet. App. 32a-33a, 49a-50a.

5

4. The Interior Board of Land Appeals rejected

petitioners’ challenge to MMS’s interpretation of Sec-

tion 1339(a). Pet. App. 25a-55a. The Board ex-

plained:

The statute conditions the authority of the Sec-

retary to make repayment upon a request being

filed “within two years after the making of the

payment.” A payment is made when it is tend-

ered to the appropriate agency. There is no am-

biguity in the wording of the statute; the terms

of the Act cannot be varied simply because [pe-

titioners] may for other reasons appear to de-

serve refunds.

Pet. App. 40a (citations omitted) .*

5. The Claims Court disagreed with the Board’s

interpretation and held that petitioners’ requests for

refunds are not time-barred. Pet. App. 138a-24a. The

court acknowledged that the language of Section

1339(a) requiring a refund request to be filed within

two years of payment “would appear to support” the

government’s interpretation. Pet. App. 18a. But the

court nevertheless accepted petitioners’ argument that

because Section 1339(a) provides for the refund of

“excess” payments, the two-year period did not begin

to run until the D.C. Circuit held the FERC regu-

lations invalid. Only then, the court reasoned, did

petitioners make excess payments. Pet. App. 19a. In

addition, relying on United States v. Wurts, 303 U.S.

414, 418 (1938), the court concluded that the statute

4The Board also reversed certain aspects of MMS’s ruling

related to the types of information producers must supply

in order to receive refunds. See Pet. App. 50a-5la. That

portion of the Board’s ruling was not challenged in the Claims

Court or the court of appeals and thus is not before this

Court.

6

should be construed so that “the limitations period

did not begin to run until after the right had ac-

crued.” Pet. App. 20a. Here, the court believed that

the right to a refund did not accrue until the D.C.

Circuit rendered its decision in INGAA. Pet App.

20a-21a.

6. A panel of the Court of Appeals for the Fed-

eral Circuit unanimously reversed. Pet. App. la-8a.

The court noted that the “language requires lessees

to request the refund of any excess payment ‘within

two years after the making of the payment,’” and

concluded that “[b]y its terms, this phrase requires

a request within two years from the time a lessee

makes its original royalty payment.” Jd. at 5a. In

response to the Claims Court’s conclusion that_a pay-

ment was not made until it was found to be exces-

sive, the court explained (id. at 6a):

The statute does not state that a lessee must re-

quest a refund “within two years after discov-

ery that a payment was excessive.” Nor does

the statute state that a lessee must request a

refund “within two years after a judicial de-

termination rendering a payment excessive.”

The statute requires a request “within two years

after the making of the payment.” By interpret-

ing the OCSLA otherwise, the Claims Court

erred. ;

The court of appeals further held that petitioners

were aware prior to the decision in INGAA of the

basis for claiming that the amounts of their royalty

payments were incorrect, because they were aware

that gas purchasers would challenge the FERC regu-

lations to which their royalty rates were tied. /d.

at 7a.

7

ARGUMENT

The decision of the court of appeals, which turns

on the particular—and unambiguous—language of

43 U.S.C. 1339(a), is correct and does not conflict

with the decision of any other court of appeals.

Petitioners were fully on notice that the FERC

regulations that affected the amount of their roy-

alty payments were being challenged by gas pur-

chasers; indeed, a number of the petitioners were

parties to the proceedings: in the D.C. Circuit in

INGAA. Yet petitioners failed to avail themselves

of the procedures established by MMS that permitted

them to preserve their refund claims pending the res-

olution of INGAA simply by filing a notice to that

effect with MMS. The decision below therefore does

not result in any unfairness to petitioners. Although

petitioners assert that the MMS procedures will re-

sult in a flood of unnecessary protective refund re-

quests in circumstances such as these, the experience

of the decade since the Solicitor of the Interior ren-

dered the formal decision approving these procedures

and MMS adopted them does not support that asser-

tion, or suggest that the common-sense application of

Section 1339(a) by the agency responsible for its im-

plementation is impracticable. Further review there-

fore is not warranted.

1. This is a case in which the language of the

statute should be both the beginning and the end of

the inquiry. Cf. United States v. Ron Pair Enters.,

Inc., 489 U.S. 235, 241 (1989). The statute bars the

Secretary from making refunds unless a refund re-

quest is filed with the Secretary “within two years

after the making of the payment.” Petitioners failed

to file a request for refund of the payments at issue

here within two years of when they were made. They

therefore have no right to receive a refund.

—_—— 8

Inasmuch as the statute imposes a condition on a

waiver of the sovereign immunity of the United

States, the courts “must be careful not to interpret

it in a manner that would extend the waiver be-

yond that which: Congress intended.” United States

v. Dalm, 110 S. Ct. 1361, 1868 (1990) (internal quo-

tation marks omitted); see id. at 1369 (“If any

principle is central to our understanding of sovereign

immunity, it is that the power to consent to such suits

is reserved to Congress.”). Here, petitioners’ argu-

ment (91-1 Pet. 13; 91-34 Pet. 13-14) that a “pay-

ment” is ‘‘made” only when a court later determines

that the payment was excessive is at best unnatural.

Especially in light of the established rule against

broad interpretations of waivers of sovereign im-

munity, petitioners’ strained reading of Section

1339(a) should be rejected.

Indeed, just two Terms ago in Dalm, this Court

rejected a substantially identical claim with re-

spect to the limitations period in 26 U.S.C. 6511(a).

Section 6511(a) requires a taxpayer to file certain

claims for a refund of overpayment of a tax “within

3 years from the time the return was filed or 2 years

from the time the tax was paid, whichever of such

periods expires the later.” In 1976, Dalm filed a gift

tax return and paid a gift tax of approximately

$19,000. After the Internal Revenue Service de-

termined in 1984 that the same transaction was sub-

ject to the income tax, rather than to the gift tax,

Dalm promptly filed a claim for a refund of the gift

tax. 110 8S. Ct. at 1363-1364. Dalm contended that

her claim was timely because “the gift tax was not

paid for the purposes of § 6511(a) until 1984, when

it was determined that she owed income tax on the

same transaction under an inconsistent theory. So,

she assert[ed], her cause of action for refund of gift

9

tax did not arise until that time.” Jd. at 1369 n.7.

This Court firmly rejected that argument (ibid.):

We disagree. The most sensible interpretation

of § 6511(a) is that a tax is paid when the tax-

payer tenders payment of the tax to the IRS,

not when the taxpayer discovers that the pay-

ment was erroneous. The very purpose of stat-

utes of limitation in the tax context is to bar

the assertion of a refund claim after a certain

period of time has passed, without regard to

whether the claim would otherwise be meritor-

ious. That a taxpayer does not learn until after

the limitations period has run that a tax was

paid in error, and that he or she has a ground

upon which to claim a refund, does not operate

to lift the statutory bar.'”!

In this case, just as in Dalm, the most sensible in-

terpretation is that a payment is made when the

payor tenders payment, not when the payor later

concludes that the amount of the payment was cal-

culated incorrectly. There is no basis for an ex-

ception to that rule here simply because the L.C. Cir-

cuit, more than two years after the payments were

made, overturned the FERC orders that had set the

ceiling price to which the royalty rates were tied.

Here, as in Dalm, the “very purpose” of the limita-

tions period is to establish repose and protect the fisc

by barring claims against the Treasury after pass-

age of the specified period, even if subsequent events

show a payment to have been excessive. There ac-

cordingly is no need for this Court to review the

5In light of the close historical relation between Section

1339 and the refund provisions of the tax laws, see OCSLA

Refunds & Credits, 88 Interior Dec. at 1096-1098, this Court’s

interpretation of the refund provisions of the tax laws is

especially relevant in applying Section 1339.

10

judgment of the court of appeals applying the un-

ambiguous language of Section 1339.

2. Implicitly recognizing that the language of the

statute Congress enacted forecloses their claim, pe-

titioners rely heavily on the principle that statutes

of limitations should be construed so that they do not

commence to run until the cause of action has ac-

erued. 91-1 Pet. 14-19; 91-34 Pet. 14, 16-20. But

none of the cases cited by petitioners has any rel-

evance to the situation presented here, because—un-

like Dalm, which strongly supports the decision be-

low—none involved actions against the United

States. Accordingly, in none of those cases did this

Court consider the rule “that when Congress attaches

conditions to legislation waiving the sovereign im-

munity of the United States, those conditions must

be strictly observed, and exceptions thereto are not to

be lightly implied.” Block v. North Dakota, 461

U.S. 273, 287 (1983). This rule has special force

in cases such as this, involving claims for public

funds. Cf. Office of Personnel Management v. Rich-

mond, 110 S. Ct. 2465, 2471-2473 (1999). The rule

cited by petitioners is simply another “competing

canon of statutory construction” regarding statutes

of repose and limitation, which must give way before

the longstanding judicial policy of strictly interpret-

ing waivers of sovereign immunity. Block, 461 U.S.

at 288.

In any event, petitioners overstate their case when

they claim that the Federal Circuit’s decision ‘‘is

squarely inconsistent with the established principle

that statutes of limitations do not begin to run until

the plaintiff could bring a claim,” 91-1 Pet. 17, or

“with the presumption that statutes of limitation be-

gin to run when the rights subject to the bar have

accrued,” 91-34 Pet. 14. As the court of appeals

11

noted, petitioners had a fully adequate opportunity

to file their claims in a timely manner. In 1981, the

Solicitor of the Interior issued a formal opinion ap-

proving procedures pursuant to which producers

faced with the problem that confronted petitioners

could file requests for refunds pending resolution of

a challenge to rates promulgated by FERC. See

OCSLA Refunds & Credits, 88 Interior Dec. at

1099-1102. Indeed, at least one producer in peti-

tioner’s situation (Texaco) filed such a claim and

avoided the two-year bar with respect to royalties

paid in reliance on FERC’s revised pricing regula-

tions. Admin. Record, Doc. 26, App. G, Shell Off-

shore Inc. v. United States, No. 391-87L (Cl. Ct.

1989). Petitioners, by contrast, failed to do so. Be-

cause petitioners do not challenge the procedures for

filing refund requests in these circumstances, and be-

cause they therefore concededly could have filed their

claims at any time after they made payment, their

right to seek a refund accrued at the time of pay-

ment. There accordingly is nothing anomalous about

applying the statutory language as it is written and

holding that the two-year filing period set forth in

Section 1339(a) began to run when petitioners first

could have filed their refund requests.

3. Petitioners also argue (91-1 Pet. 20-25; 91-34

Pet. 15-16, 25-26) that the court of appeals errone-

ously failed to defer to the views of the Comptroller

General. In their view, Congress’s 1953 enactment

of OCSLA implicitly incorporated into Section

1339(a) the Comptroller General’s 1941 interpreta-

tion of a prior statute, see Pet. App. 79a-89a. The

short answer to this argument is that the Comp-

troller General’s interpretation was not passed by

both Houses of Congress and signed by the Presi-

12

dent; it is the text of the statute Congress enacted

that controls. As discussed above, petitioners’ argu-

ments are inconsistent with that text.

Even if we assume arguendo, however, that the

Comptroller General, and not the Secretary, has the

power to issue authoritative interpretations of

OCSLA,* the Comptroller General’s interpretation in-

volved a statute significantly different from Section

1339(a) and thus sheds little light on the question at

hand.’ The statute at issue was Section 2 of the Act

of Dec. 11, 1919, ch. 5, 41 Stat. 366, which provided

that any claim for a refund of excess sums paid for

the purchase of public lands must be filed not within

two years of the date of payment, but “within two

years after the patent has issued for the land em-

braced in such payment.” See Pet. App. 8la. There-

after, the Act of June 27, 1930, ch. 642, 46 Stat.

822, extended the refund provisions of the 1919 Act

to “all payments in excess of lawful requirements

* * * under any statute relating to the * * * lease

* * * of the public lands.”

Interpreting these provisions, the Comptroller

General noted that “serious difficulty arises” in ap-

plying the two-year bar to matters (like leases or li-

censes ) arising under the 1930 statute, because no “pat-

ent” issues in connection with most of them. Pet. App.

® But see 43 U.S.C. 13834(a) (“The Secretary shall admin-

ister the provisions of [OCSLA] relating to the leasing of

the ouver Continental Shelf, and shall prescribe such rules

and regulations as may be necessary to carry out such pro-

visions.”) ; 43 U.S.C. 18339(a) (providing that refunds are

available “when it appears to the satisfaction of the Secretary

that [a person is entitled to a refund]”’).

7For discussion of this same point by the Interior Board

of Land Appeals, see Pet. App. 40a.

13

84a. Moreover, reliance on the date on which the lease

or license was issued would be unfair, “for under such

a ruling a repayment of any excess paid after the

second year of the life of the permit would auto-

matically be barred.” Jbid. The Comptroller Gen-

eral noted that it would be “convenient to hold that

the 2-year period begins on the date the excess pay-

ment is made,” but decided that “a ruling of this

type would be more in the nature of legislation than

interpretation.” Jd. at 85a. Recognizing the need

to adopt some rule, the Comptroller General pro-

ceeded in these circumstances to adopt a rule that

generally imposed a two-year bar running from the

date the payment is made, but allowed the two-year

period to be extended in certain cases until! the res-

olution of contingencies that affect the appropriate

amount of payment. See id. at 89a. We agree with

the Comptroller General’s conclusion that a ruling

establishing a bright-line, two-year bar commencing

on the date of payment is in the nature of legisla-

tion. Because that is precisely the legislation Con-

gress enacted in Section 1339(a), the Comptroller

General’s opinion interpreting a statute that did not

contain such a bar is of no relevance here.*

8 Petitioners also err in relying (91-1 Pet. 23-24; 91-34 Pet.

25-26) on the analysis of the Comptroller General and the

Secretary with regard to a 1974 refund claim by Union Oil

Company of California. See Memorandum from Frederick

N. Ferguson, Assistant Solicitor of the Interior—Minerals,

Division of Public Lands, to Director, Geological Survey (Oct.

12, 1972) (Pet. App. 68a-71a) ; Letter from Elmer B. Staats,

Comptroller General, to Henry M. Jackson, Chairman, Senate

Committee on Interior and Insular Affairs (July 8, 1974)

(Pet. App. 72a-78a). In that case, the Department of the

Interior itself retroactively altered the provisions of a uniti-

zation agreement with Union Oil in a way that decreased

14

4. Finally, petitioners contend (91-34 Pet. 22-29)

that the court of appeals accorded undue deference

to the Secretary’s interpretation of Section 1339(a),

arguing (91-34 Pet. 23) that “an agency’s interpre-

tation of a statute will not be upheld when it con-

flicts with a longstanding presumptive rule of statu-

tory construction.” This contention is meritless be-

cause, for the reasons discussed above (see pages 10-

11, supra), the “longstanding presumptive rule” on

which petitioners rely—that statutes of limitations

generally do not run until the plaintiffs’ right ac-

crues—has no applicability here and is, in any event,

satisfied, because petitioners’ right to request a re-

fund accrued immediately upon payment.

the amount of oil revenues Union Oil should have received

during the preceding years; it thus indirectly reduced the

amount Union Oil should have paid the United States as

royalties.

Both the Department and the Comptroller General agreed

that the period in Section 1339(a) had been tolled during

the period the Department was considering alteration of the

unitization agreement. They relied on the general rule that

payments made “under protest” toll the two-year period

because they sufficiently put the Department on notice that

a refund request will be filed. See Pet. App. 70a, 73a-74a.

There was no such notice here. As the Solicitor of the In-

terior acknowledged a decade ago (OCSLA Refunds & Credits,

88 Interior Dec. at 1101 n.12):

Taken out of context, some remarks in [the Union Oil

decision] might seem to conflict with [the Depart-

ment’s] interpretation * * * . This would misinterpret

[Section 1339], which sets the date of payment as the

starting date. In the instances discussed by the Comp-

troller General, the statute was tolled on the date of

the earliest payment. Thus, no time had yet run when

the statute resumed following the decision.

In light of the Solicitor’s long-standing explanation, peti-

tioners err in relying on the disposition of the Union Oil

matter.

15

\

In any event, as the court of appeals made clear, its de-

cision did not rest on deference to the administrative

construction of ambiguous provisions of federal law;

it rested on the court’s independent determination

that the agency’s construction was the only one that

accorded with the statute’s “clear meaning.” Pet.

App. 5a. Further review therefore is not warranted.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

MARGARET M. SWEENEY

DirRK D. SNEL

ELIZABETH ANN PETERSON

Attorneys

AUGUST 1991

WU. S. GOVERNMENT PRINTING OFFICE; 1991 282061 45050