Reply Brief — Louisville Edible Oil Products, Inc. v. United States

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

r Supreme Court, U.S.

oe yg tec)

(3) AUG 30 1991

mater | OFFICE OF (HE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

LOUISVILLE EDIBLE OIL PRODUCTS, INC., et al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

REPLY BRIEF OF PETITIONERS

FRANK E. HADDAD, JR. CARTER G. PHILLIPS*

KENTUCKY HOME LIFE MaRK D. Hopson ~

BUILDING MICHAEL D. WARDEN

Louisville, Kentucky 40202 SIDLEY & AUSTIN

(502) 583-4881 1722 Eye Street, N.W.

Washington, D.C. 20006

4 (202) 736-8000

Counsel for Petitioners

August 30, 1991 * Counsel of Record

WILSON - Epes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF AUTHORITIES

Cases Page

Abbate v. United States, 359 U.S. 187 (1959) _....... 5

Bartkus V. Illinois, 359 U.S. 121 (1959) _.....0000.... 1

Grafton v. United States, 206 U.S. 333 (1907) ...... 3

Heath v. Alabama, 474 U.S. 82 (1985) .......00000000-.. 3

United States v. Aboumoussallem, 726 F.2d 906

Be, IE A SIAL ASST a 4

United States v. Aleman, 609 F.2d 298 (7th Cir.

1979), cert. denied, 445 U.S. 946 (1980) ............ 4

United States v. Bernhardt, 831 F.2d 181 (9th Cir.

| eI Ds 9 BIN TS oP Poa Pe 4

United States v. Russotti, 717 F.2d 27 (2d Cir.

1983), cert. denied, 465 U.S. 1022 (1984) ......... 4

United States v. Wheeler, 435 U.S. 313 (1978) ...... 2

Waller v. Florida, 397 U.S. 387 (1970) .................... 3

IN THE

Siuypwreuw Court of the United States

OCTOBER TERM, 1991

No. 91-76

LOUISVILLE EDIBLE OIL PRODUCTS, INC., et al.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

REPLY BRIEF OF PETITIONERS

The petition demonstrated that the decision below pre-

sents a substantial question under the Double Jeopardy

Clause of whether a significant penalty for Clean Air

Act violations imposed by a local government acting

pursuant to delegated federal authority bars a later

federal prosecution for the same alleged violations. Peti-

tioners made clear that such a federal prosecution falls

squarely within the exception to the dual sovereignty

doctrine announced in Bartkus v. Illinois, 359 U.S. 121

(1959). Moreover, the issue presented here is the pre-

cise issue left open in United States v. Wheeler, 435

U.S. 313 (1978), an issue this Court characterized as an

“interesting question.”

In its opposition, th United States engages in a sim-

plistic analysis of the complex question raised by the

decision below and concludes that because different sov-

ereigns are involved, the later federal prosecution is

permissible. But the United States fails to show that

the court of appeals’ opinion can be reconciled with either

the reasoning of the Court under Bartkus or the related

logic of Wheeler. Rather, the United States belittles the

Bartkus exception and, although the issues involved in

Wheeler were squarely ruled upon by the court below,

attempts to hide behind a claim that petitioners have

“waived” any argument based on Wheeler because it was

not cited below. Further, the United States shrugs off the

serious practical problems raised by the petition by assert-

ing that Congress “authorized” duplicative penalties by

“different sovereigns” for the same Clean Air Act viola-

tions. None of these arguments raised in the opposition

demonstrates either that the decision below can be

squared with Double Jeopardy decisions of this Court

or that this Court should not review the court of appeals’

decision.

1. The United States glosses over the significance of

the issue raised in the petition by asserting that “peti-

tioners are subject to separate federal and local enforce-

ment actions because their conduct ‘transgresses the laws

of two sovereigns.” Br. in Opp. 7 (quoting Heath v.

Alabama, 474 U.S. 82, 88 (1985)). But this Court’s

Double Jeopardy jurisprudence and, in particular, its

cases analyzing the dual sovereignty doctrine are not as

wooden as the United States suggests.

Contrary to the suggestion of the United States (Br.

in Opp. 7-8), this Court’s inquiry under the Double Jeop-

ardy Clause does not end once it is determined that two

sovereigns are involved. It is simply not an answer under

the Double Jeopardy Clause to say “separate federal and

local enforcement actions charge separate offenses that

are separately punishable.” Br. in Opp. 7. Although

Kentucky and the United States are indisputably separate

sovereigns (see Pet. 17), this Court’s decisions in Bart-

kus, Wheeler, Grafton v. United States, 206 U.S. 333

(1907), and Waller v. Florida, 397 U.S. 387 (1970),

make clear that the mere fact that two sovereigns are

involved does not automatically clear the way for multiple

prosecutions for the same offense.

Here, because Kentucky has adopted federal Clean

Air Act standards as its own and the federal government

has delegated enforcement authority to Kentucky under

that Act, this Court’s decisions require a more searching

examination of each sovereign’s authority than that under-

taken by the court below and defended by the United

States in its opposition. The United States recognizes,

as it must, that “[s]ection 112(d) provides that ‘[i]f the

Administrator finds the State procedure is adequate, he

shall delegate to such State any authority he has under

this chapter to implement and enforce such standards.’ ”

Br. in Opp. 3 (quoting 42 U.S.C. §7412(d)(1)). But

the United States proceeds to ignore this statutory lan-

guage and baldly asserts that “Congress and the EPA

did not ‘delegate’ authority to Kentucky to promulgate

local regulations.” Br. in Opp. 9.1 Absent Section 112(d)

and the delegation of authority by the federal government

to Kentucky, there would be no state authority to act

under the Clean Air Act, and no authority for Kentucky

to impose more than $174,000 in fines on petitioners for

violations of that Act. The later prosecution -by the

1The United States’ contention that Section 112(d) merely pro-

vides ‘an incentive” for Kentucky and other states ignores both

the plain language of the statute and its practical effect.

2 Plainly, the federal-state enforcement scheme under the Clean

Air Act implicates issues that were not before this Court in the

case on which the United States principally relies. See Heath v.

United States for these same violations raises a serious

and unresolved question under the Double Jeopardy

Clause.

As petitioners previously demonstrated, because the

State of Kentucky ‘acted as an agent for the federal

government under authority delegated to it pursuant to

the Clean Air Act, the decision below is inconsistent with

the Bartkus exception. See Pet. at 11-12. The United

States relegates its discussion of Bartkus to a single foot-

note, where, notwithstanding this delegation of enforce-

ment authority, it asserts that the Jefferson County

Board was not acting as a “tool” for the federal author-

ities. Br. in Opp. 9 n.2. But if the Bartkus exception

is to have any meaning at all, it must except from the

dual sovereignty doctrine the explicit delegation of en-

forcement authority, even if the delegation is from one

sovereign to another. See Pet. 13.'

2. The United States does not dispute that the deci-

sion below will undermine efforts to enforce air quality

Alabama, 474 U.S. 82, 87-88 (1985) (successive prosecutions by

Georgia and Alabama for murder do not violate Double Jeopardy

Ciause). This is not a situation where states have initiated prose-

cutions under criminal laws enacted pursuant to their police

powers. Here, in contrast, Kentucky was implementing a scheme

of federal regulation under authority delegated to it by the federal

government.

%To suggest, as does the United States, that petitioners read

Bartkus too broadly, because “(t]he courts of appeals have uni-

formly rejected far narrower interpretations” (Br. in Opp. 9

n.2) is disingenuous, at best. The cases cited by the United States

stand for the proposition that close cooperation between federal and

state authorities does not implicate the Bartkus exception. See,

e.g., United States v. Bernhardt, 831 F.2d 181, 182-88 (9th Cir.

1987); United States v. Abouwmoussallem, 726 F.2d 906, 910 (2d

Cir. 1984); United States v. Russotti, 717 F.2d 27, 31 (2d Cir.

1983), cert. denied, 465 U.S. 1022 (1984) ; United States v. Aleman,

609 F.2d 298, 309 (7th Cir. 1979), cert. denied, 445 U.S. 946 (1980).

Here, in contrast, “[t]he ‘dual sovereignty’ doctrine is inapplicable

[because] separate prosecuting entities exercise authority of the

same sovereign.” Abowmoussallem, 726 F.2d at 910 n.2.

standards promulgated pursuant to the Clean Air Act.

Instead, the opposition asserts that “Congress has au-

thorized dual federal and state enforcement and has, in

effect, rejected petitioners’ policy arguments.” Br. in

Opp. 11. Plainly, the decision below raises serious policy

and enforcement problems under the Clean Air Act, par-

ticularly by discouraging settlements of enforcement dis-

putes. Pet. 13-15. By granting a writ of certiorari, this

Court can resolve the uncertainty regarding what all

parties here acknowledge are significant enforcement

problems.

3. Rather than address squarely petitioners’ assertion

that the decision below is inconsistent with Wheeler, the

United States, in apparent recognition that multiple en-

forcement actions under the Clean Air Act cannot be rec-

onciled with that decision, initially argues that petitioners

have waived this argument because they did not “cite

Wheeler in their briefs to the court of appeals.” Br. in

Opp. 11. In Wheeler, this Court interpreted both the

Double Jeopardy Clause and the dual sovereignty doc-

trine, issues that were raised below, squarely addressed

by the court of appeals, and, indeed, discussed extensively

in the United States’ opposition. To suggest that these

issues have been waived is nonsense.

The Wheeler court made clear that “[w]hat differen-

tiated [cases holding that the dual sovereignty doctrine

is inapplicable] from Bartkus and Abbate [v. United

States, 359 U.S. 187 (1959) ] was not the extent of con-

trol exercised by one prosecuting authority over the other

but rather the ultimate source of the power under which

the respective prosecutions were undertaken.” 435 U.S.

at 320. Plainly, the ultimate source of the power exer-

cised by Kentucky is the federal government, and the fed-

eral government has delegated that authority to Kentucky.

The United States asserts that the statutory scheme

results in only a “partial preemption[]” of Kentucky’s

sovereign authority. Br. in Opp. 12. But this again ig-

Ce eT

nores the express delegation of authority from the fed-

eral government to the states under Section 112 of the

Clean Air Act, as well as Kentucky’s adoption of the fed-

eral standards. States gua states have no authority to

implement and enforce standards under the Clean Air

Act. They only have such authority “if the Administra-

tor finds the State procedure is adequate, [then] he shall

delegate to such State any authority he has under this

chapter to implement and enforce such standards.” With-

out the delegation of authority from the EPA, Kentucky

has no authority to enforce Clean Air Act standards.

Only after the delegation may Kentucky enforce those

standards. This is precisely the question left open in

Wheeler: whether there is an exception to the dual sov-

ereignty doctrine when Congress deprives a sovereign of

its authority to act, and then that sovereign regains such

authority from Congress. That “interesting” issue carries

with it significant enforcement implications that require

review by this Court.

CONCLUSION

For the foregoing reasons and those presented in the

petition, the petition for a writ of certiorari should be

granted.

Respectfully submitted,