Opposition Brief — Western Palm Beach County Farm Bureau, Inc. v. United States

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No. 91-212 |; OCT S WR

T tarie. OF. The!

<<

Gn the Supreme Court of the United States

OCTOBER TERM, 1991

WESTERN PALM BEACH COUNTY FARM BUREAU, ING.,

ET AL., PETITIONERS

OF

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

ELLEN J. DURKEE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether, in an interlocutory appeal from the dis-

trict court’s denial of petitioners’ motion to inter-

vene, the court of appeals erred by declining to rule

on petitioners’ contention, raised for the first time in

a filing made after the court of appeals issued its

opinion in this case, that this suit was barred on

sovereign immunity grounds.

(I)

TABLE OF CONTENTS

Page

i HT I ee 1

cs ceesinandncasmcasnnioceborves 1

a ccaeususonepneaiivecmnisnawauseinn 2

RE tC 3

a _coisiaucidueimonebeneonnts 18

TABLE OF AUTHORITIES

Cases:

Akerman v. Oryx Communications, Inc., 810 F.2d

siecle 11

Atascadero State Hospital v. Scanlon, 473 U.S. 234

a ea 15

Bender v. Williamsport Area School District, 475

SS 12

Blatchford v. Native Village, 111 S. Ct. 2578

a SE ee eT 16

Clearfield Trust Co. v. United States, 318 U.S. 368

Ee ee 17

Colorado v. Idarado Mining Co., 916 F.2d 1486

(10th Cir. 1990), cert. denied, 111 S. Ct. 1584

ESSE EES ES 11

Delaware Valley Citizens’ Council for Clean Air

v. Pennsylvania, 678 F.2d 470 (3d Cir.), cert.

denied, 459 U.S. 969 (1982) ..........00000 14

Diamond vy. Charles, 476 U.S. 54 (1986) —.....0000... 14

Eisenstadt Vv. Baird, 405 U.S. 488 (1972) ........ 13

Employees of the Dep’t of Public Health & Welfare

v. Dep’t of Public Health & Welfare, 411 US.

SEE ee 15

Gregory V. Ashcroft, 111 S. Ct. 2395 (1991) —........ 16

Hodel Vv. Irving, 481 U.S. 704 (1987) 0000. 13

Howard V. Parisian, Inc., 807 F.2d 1560 (11th Cir.

EER ce 11

Juidice Vv. Vail, 480 U.S. 327 (1977) ....................... 12

Lewis v. Continental Bank Corp., 494 U.S. 472

a 12

Cases—Continued : Page

Loftin Cotton v. United States, 52 U.S. 228

ESCORTED WIRY SPRY Kee ON I PRES RIESE OS aD 17

McGowan V. Maryland, 366 U.S. 420 (1961) .......... 13

Monaco V. Mississippi, 292 U.S. 313 (1934) .......... 15

Nevada V. Hall, 440 U.S. 410 (1979) —....0002202... 15

Pennhurst State School & Hospital vy. Halderman,

Or a ie 15

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).. 16

People of Illinois ex rel. Hartigan v. Peters, 861

re ee I Cs SI eencniacecdnceevdeaeeseventtwnseanenien 11

Priebe & Sons, Inc. v. United States, 332 U.S. 407

I i is aaa ho nce ceca taka tephak aneieinmcmleaions 17

Stringfellow vy. Concerned Neighbors in Action,

a ee EE cette ienecke dienes 10

United States v. California, 655 F.2d 914 (9th Cir.

I isetiic tise satncecticcapneeaetanbcammbimia tan tccein. 17

United States v. California, 328 F.2d 729 (9th

Cir.), cert. denied, 379 U.S. 817 (1964) ......... 17

United States v. Puerto Rico, 551 F. Supp. 864

(D. P.R.), aff’d, 721 F.2d 832 (1st Cir. 1983) .... 18

United States v. Minnesota, 270 U.S. 181 (1926)... 15

United States v. Mississippi, 380 U.S. 128 (1965).. 15

United States v. Raines, 362 U.S. 17 (1960) _........ 13

United States v. West Virginia, 537 F. Supp. 388

(S.D. W. Va.), aff’d, 764 F.2d 1028 (4th Cir.

1985), aff’d, 479 U.S. 305 (1987) ................00000.... 18

United States for and on behalf of Santa Ana

Indian Pueblo v. University of New Mezxico, 731

F.2d 703 (10th Cir.), cert. denied, 469 U.S. 853

RR ed Ds Shee 17

Weiser v. Wright, 505 F.2d 912 (5th Cir.), cert.

Gentes, i U.S. 968 (1976) ............................... 7

Welch v. Texas Dep’t of Highways & Public

Transportation, 483 U.S. 468 (1987) .........0...... 16

West Virginia v. United States, 479 U.S. 305

RS SRRRRRE ARERR hee ATS Eee Ss 16,17

Will v. Michigan Dep’t of State Police, 491 U.S.

SE. IID icisducscnntctcdsatulcadnceiicabadiiesatieneddiécechatncabbbiues 16

Vv

Constitution, statutes and rules: Page

U.S. Const. :

FEE OO rc a eee er Ceres nS 8,9, 12,15

RR RRs Bere Pe 8, 12, 18, 14, 15, 17

Clean Water Act, 33 U.S.C. 1251 et seq. ........000000...... 8

ST la ee 2

| EERE EON te ee 10

RENEE aaa Pani tela car eR. SR 14, 17

Fla. Stat. Ann. (West 1988 & Supp. 1991) :

ie BE eteceesentess DALIT GLE Dae ee Rid I No RE os Te 4

chien le ae Pel AN eet ect Serres ee Tet 4

SEE ITE Rea Cd ee ea 4

EE ee ean 3

§ 373.4592 _......... SRE BORA Sen BALES 4

Ff ) SRG eumecoern tne 3

| aa ate tec sercchpctteetenesnccqncen See 4-5

5 SERN TIPE eee mein Reet 8 And 4,13

| ch. 823:

| RSE ee MIRNA, Lee 7

| Fed. R. App.:

| IED... ss on sucdraacadbdaciecaseeonetanennsesenen 9

| CRE RRA RRC Ie EAE on Berke, 2255 9

| IN i ssl, occ antio earns peanep nde eaeieaoienaseneolmemneraades 10

Fed. R. Civ.:

RE IES SLE SE Reet eR NEAE NCCT. 6

III ys sciscicsixeconizcceneivcicens Mleasltny eeclnsalenbe aaa aalaancieteiiiae 6, 7

F.A.C.:

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Miscellaneous:

H.R. Rep. No. 1455, 91st Cong., 2d Sess. (1970)... 2

, ” SS

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-212

WESTERN PALM BEACH COUNTY FARM BUREAU, INC.,

ET AL., PETITIONERS

Ge

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The decision of the court of apneals (Pet. App.

A1-A20) is reported at 922 F.2d 704. The order of

the court of appeals denying petitioners’ “Suggestion

and Motion as to Lack of Jurisdiction” (Pet. App.

A24-A25) is not reported. The district court orders

denying petitioners’ motions for intervention are not

reported.

JURISDICTION

The judgment of the court of appeals was entered

on March 22, 1991. A petition for rehearing was

denied on May 7, 1991 (Pet. App. A30). The peti-

tion for a writ of certiorari was filed on August 5,

1991. ‘The jurisdiction of this Court is invoked un-

der 28 U.S.C. 1254(1).

(1)

2

STATEMENT

This case arises from an action brought by the

federal government to require agencies of the State

of Florida to take certain steps to end pollution in

the Arthur R. Marshall Loxahatchee Wildlife Refuge

and the Everglades National Park.

1. The Loxahatchee Wildlife Refuge is a federal

wildlife sanctuary managed by the U.S. Fish and Wild-

life Service, an agency of the Department of the Inte-

rior. Most of the refuge land is leased under a long-

term lease signed on June 8, 1951, from the South Flor-

ida Water Management District (SFWMD), a state

instrumentality that is one of the defendants in this

case. Pet. App. A49-A50, A63-A72.

The Everglades National Park is federally owned

and administered by the National Park Service, an

agency of the Department of the Interior. In 1934

Congress authorized the establishment of the Park

and provided that it be permanently reserved as

wilderness in which no activity may be undertaken

that would interfere with preservation of the native

flora and fauna and primitive natural conditions.

16 U.S.C. 410(c). A 1970 congressional report de-

scribed the Park as the “largest and most important

subtropical wilderness in North America” that ‘con-

tains perhaps the most fragile and unique plant and

animal communities in the national park system.”

H.R. Rep. No. 1455, 91st Cong., 2d Sess. 2-3 (1970).

The Report recognized that the Park’s ecosystem is

dependent on, and sensitive to, the water quantity

and quality flowing into the park. Jbid.

2. On October 11, 1988, the United States brought

this action against two Florida state agencies, the

Florida Department of Environmental Regulation

(DER) and the SFWMD, and against two state offi-

3

cials in their official capacity, the Secretary of DER

and the Executive Director of SFWMD. Pet. App.

A34-A37. An amended complaint, filed on December

23, 1988, was the basis for the court of appeals’ de-

cision.’ Pet. App. A4 n.1. The complaint alleges that

the hallmark characteristic of the Everglades aquatic

ecosystem is the need for nutrient-lean conditions,

and that aquatic life and vegetation, which are essen-

tial to preservation of the ecosystems in the Refuge

and Park, are being destroyed because the state de-

fendants, in violation of state law and of contracts

with the federal government, have diverted nutrient-

polluted agricultural water into, or toward, the frag-

ile Everglades ecosystems in the Park and Refuge.

Pet. App. A36-A41.

The complaint contains four counts. Count 1 (Pet.

App. A42-A45) alleges that existing state water

quality standards are being violated.* Count 1 fur-

1The United States later filed a second amended complaint.

This brief will refer to the first amended complaint, on which

the court of appeals based its decision. In any event, the

changes made in the second amended complaint are not mate-

rial to the issues presented in this petition.

2 Water quality standards applicable to the Park and Refuge

include numeric and narrative Class III water quality stand-

ards, which were promulgated in 1972, F.A.C. 17-3.121, and

an antidegradation standard based on designation of the Park

and Refuge as “Outstanding Florida Waters” (see note 4,

infra). In addition, the Surface Waters Improvement and

Management Act of 1987 (“SWIM Act’), Fla. Stat. Ann.

$$ 373.451-373.456 (West 1988 & Supp. 1991), provided that

SFWMD shall not divert waters to the Park in such a way

that state water quality standards would be violated or nu-

trients in diverted waters would adversely affect native vege-

tative communities or wildlife. Fla. Stat. § 373.4595(2) (a)1

(West 1988) ; Pet. App. A43.

Although four years have passed since the SWIM Act was

enacted, the state defendants have not yet produced an ap-

4

ther alleges that both DER and SFWMD have the

power and responsibility under Fla. Stat. chapters

373 and 403, to enforce state water quality stand-

ards, including the power to issue and enforce per-

mits to ensure that waters are protected in accord-

ance with state regulations.*

Count 2 (Pet. App. A45-A47) alleges that DER’s

failure to require permits for the structures oper-

ated by the SFWMD, and SFWMD’s operation of

unpermitted structures, violates state law.* See Fla.

proved, final SWIM plan. The SWIM Act was supplemented

by the Florida Legislature’s recent enactment of the Marjory

Stoneman Douglas Everglades Protection Act, Fla. Stat.

Ann. § 373.4592 (West Supp. 1991), which became effective

on July 1, 1991 and, among other things, sets more specific

requirements for the Plan and sets schedules for completion

of and compliance with the Plan.

On July 26, 1991, the United States and the state defend-

ants executed a settlement agreement resolving all of their

respective claims in this case, and a motion for approval of

the agreement is presently pending before the district court.

The settlement agreement between the state defendants and

United States requires completion of the SWIM Plan on a

schedule consistent with the 1991 Act.

3 Florida Stat. Ann. § 403.412 (West 1988 & Supp. 1991)

provides that a governmental agency charged with the duty of

enforcing the laws, rules, and regulations for the protection

of water and other natural resources may be compelled to en-

force such laws, rules, and regulations in an action for in-

junctive relief. The DER has supervisory authority over five

regional water management districts, including the SFWMD,

id. § 373.026, but delegates much of its power to those dis-

tricts. Id. § 373.069.

4In 1979 the State designated the Park and Refugee as

“Outstanding Florida Waters.” As a result, Florida law pro-

hibits the lowering of the ambient water quality below the

quality that existed prior to 1979. F.A.C. 17-3.041, 17-4.242

(1) (a)2.d. Notwithstanding the establishment of this water

quality standard, commencing in 1979 the state defendants

5

Stat. Ann. ch. 403 (West 1988) and F.A.C. ch. 17-4.

The second count also alleges that SFWD’s delivery of

contaminated water to the Park and Refuge through

unpermitted structures constitutes a nuisance for

which relief may be granted.

Count 3 alleges breach of a 1984 contract between

the SFWMD, the National Park Service, and the

United States Army Corps of Engineers. Pet. App.

A47-A49, A54-A62. In the contract, SFWMD prom-

ised that water it sends to Everglades National Park

would meet certain minimum, numerical water qual-

ity standards. Pet. App. A54, A58-A59. The con-

tract also requires SFWMD to comply with state or

federal quality criteria that are more stringent than

the enumerated minimum levels. Pet. App. A54-A55.

Finally, it requires SFWMD to take legal action

where necessary to restore or protect the quality of

water entering the Park. Pet. App. A55.

Count 4 is another contract claim, based on the

lease agreement between SFWMD and the United

States for use of state-owned land as a federal wild-

life refuge. Pet. App. A49-A50, A63-A64. The con-

tract provides that the Refuge shall be used in a

manner consistent with wildlife management. Pet.

App. A49-A50. The complaint alleges that SFWMD

has breached the contract by diverting nutrient-

polluted water, which is degrading the habitat neces-

sary for conservation of wildlife, fish and game. Pet.

App. A50.

began diverting more contaminated water directly into the

Refuge and toward the Park. Pet. App. A40. The court of

appeals viewed the allegation that state defendants have

violated the water quality standards applicable to “Outstand-

ing Florida Waters” as part of Count 2, a claim as to which

petitioners were not allowed to intervene. Pet. App. A8.

6

The complaint seeks injunctive relief to compel the

state defendants to regulate the quality of water

flowing onto federal property to the extent mandated

by state law. It also seeks to compel performance of

the contractual obligations alleged in Counts 3 and 4.

Pet. App. A50-A51.

4. On December 16, 1988, petitioners and other

parties, known collectively as ‘Farm Interests,” °

filed a motion to intervene as of right under Federal

Civil Procedure Rule 24(a) or, in the alternative, to

be granted permissive intervention under Rule 24(b).

Farm Interests consisted of individual farms and or-

ganizations whose members farm in an area known

as the Everglades Agricultural Area. The district

court denied the motion to intervene by order entered

on July 27, 1989. Farm Interests filed a notice of ap-

peal from the order -denying them intervention on

September 25, 1989. On the same day, Farm Inter-

ests filed a renewed motion for intervention in the

district court, which the court denied on December 1,

1989. Farm Interests filed another notice of appeal

from this second denial of intervention. The two ap-

peals were consolidated.

The only issue addressed in the appellate briefs and

at oral argument was whether Farm Interests should

be allowed to_intervene in the case. In an opinion is-

sued January 28, 1991, a divided panel of the Elev-

enth Circuit first held that-it had jurisdiction over

this interlocutory appeal, relying on what it termed

the “anomalous rule” of the Eleventh Circuit that a

court of appeals has jurisdiction over an interlocu-

5 The other parties were Florida Fruit and Vegetable

Growers Association, Florida Sugar Cane League, Inc., and

Beardsley Farms, Inc.

7

tory appeal of a district court order denying interven-

tion only if the district court order is incorrect. Pet.

App. A4-A5 (citing Weiser v. White, 505 F.2d 912,

916 (5th Cir.), cert. denied, 421 U.S. 993 (1975) ).

The court proceeded to reverse the district court in

part, holding that Farm Interests had a limited right

to intervene as to Count 1 with regard to the setting

of numeric limits implementing state narrative water

quality standards. Pet. App. A7-Al14. Judge Hatch-

ett filed a dissenting opinion stating that he would

affirm the district court’s denial of intervention in

full. Pet. App. A19-A20.°

On February 19, 1991, Farm Interests filed a peti-

tion for rehearing as to that portion of the decision

denying intervention of right as to Counts 2, 3, and

4. Farm Interests simultaneously filed a pleading

styled “Suggestion and Motion as to Lack of Federal

Jurisdiction,” in which they asserted, based on a va-

riety of arguments, that the district court proceed-

ings should be dismissed. (Pet. App. A24) Among

the contentions advanced by Farm Interests in this

pleading were that the United States had no standing

under state law to assert Counts 1 and 2, that the

nuisance claim was barred by the Florida Right to

Farm Act, Fla. Stat. Ann. § 823.14 (West Supp.

® The court of appeals unanimously held that Farm Inter-

ests had no right to intervene on the other three claims in the

United States’ amended complaint. Pet. App. Al4-A17. The

district court’s denial of permissive intervention under Fed.

R. Civ. P. 24(b) was also unanimously affirmed. Pet. App.

A18. The court of appeals emphasized that the district court

retained discretion to condition Farm Interests’ participation

on Count 1 to such terms as would be consistent with the fair,

prompt conduct of the litigation, or to order separate trial

and discovery of one or more of the counts. Pet. App. Al4,

Al17.

8

1991), and federal Clean Water Act, 33 U.S.C. 1251

et seq., and that constitutional principles of comity,

federalism, and state sovereign immunity embodied

in Article III and the Tenth and Eleventh Amend-

ments of the Constitution, required dismissal of all

counts, including those counts as to which they had

not been granted a right to intervene.

By order dated March 22, 1991, the Eleventh Cir-

cuit panel declined to consider the Farm Interests’

“Suggestion and Motion as to Lack of Jurisdiction.”

Pet. App. A24-A25. The Court explained that, al-

though “the Farm Interests may intervene in this

case to protect their right to participate in the devel-

opment of numeric limits implementing the state’s

narrative water quality standards * * *, [t]he juris-

dictional issues that the Farm Interests raise in their

motion are only indirectly related to the protection of

this right.” Pet. App. A24-A25. The court noted that

“the Farm Interests are adequately represented on

the jurisdictional issues by defendants South Florida

Water District and Florida Department of Environ-

mental Regulation, which have already raised many

of these issues with the District Court.” Pet. App.

A25. Finally, the court held that, “even if the Farm

Interests were proper parties to raise the jurisdic-

tional issues in their motion, it would be procedurally

inappropriate for us to extend our limited appellate

review under the anomalous rule to decide issues not

raised in the parties’ briefs or in this Court’s pub-

lished opinion.” Jbid. The court noted, however, that

“(t]he Farm Interests may still seek to present their

jurisdictional motion to the District Court.” Jbid.

9

ARGUMENT

Petitioners do not seek further review of the Elev-

enth Circuit’s decision respecting the scope of their

right to intervene. Rather, petitioners argue that the

court of appeals erred in failing to consider their post-

decision motion to dismiss all four counts in the com-

plaint for lack of jurisdiction.

Contrary to petitioners’ contention, no decision of

this Court or any other court of appeals holds that a

court of appeals has an obligation to ruie on a post-

decision motion raising jurisdictional issues that ex-

ceed both the scope of the moving party’s right to

participate as an intervenor and the scope of an in-

terlocutory appeal. Moreover, even if the court of

appeals had an obligation to rule on petitioners’ mo-

tion, petitioners’ substantive contentions that the dis-

trict court has no jurisdiction over this case are mis-

taken; settled precedent makes clear that a State has

no Eleventh Amendment immunity from suit in fed-

eral court where jurisdiction is based on the presence

of the United States as plaintiff.

1. Further review in this case is unwarranted be-

cause the court of appeals acted appropriately in re-

fusing to rule on issues that were “not raised in the

parties’ briefs or in [the court of appeals’] published

opinion” (Pet. App. A25), but instead were raised

for the first time in petitioners’ post-decision motion.

The Federal Rules of Appellate Procedure provided

ample opportunity for petitioners to submit a timely

brief advancing “the contentions of [petitioners]

with respect to the issues presented, and the reasons

therefor.” Fed. R. App. P. 28(a)(4). In addition,

they were permitted to file a reply brief pursuant to

Fed. R. App. P. 28(c) and to participate in oral

10

argument pursuant to Fed. R. App. P. 34. Petitioners

chose not to use any of those mechanisms to present

their jurisdictional arguments to the court of appeals.

Petitioners advance no authority in support of the

novel proposition that the court of appeals was re-

quired to ignore rules adopted for the orderly dis-

position of appeals and rule on their untimely argu-

ments.

2. Even had petitioners chosen to advance their

arguments in an orderly and timely manner before

the court of appeals, the court of appeals would have

acted correctly in refusing to exercise its pendent

appellate jurisdiction to rule on petitioners’ argu-

ments.’ Under the final judgment rule, the courts of

appeals “have jurisdiction of appeals from all final

decisions of the district courts.”’ 28 U.S.C. 1291 (em-

phasis added). Thus, a district court’s rulings on

preliminary issues—including jurisdictional issues of

the sort raised by petitioners—are not appealable

until final judgment is reached. The fact that the

court of appeals may have properly exercised its jur-

isdiction to review the limited issue of the district

court’s denial of Farm Interests’ initial motion to in-

tervene, cf. Stringfellow v. Concerned Neighbors in

Action, 480 U.S. 370, 376-377 (1987), does not alter

the fact that other rulings of the district court, in-

cluding its determination that it had jurisdiction over

this case, were not yet appealable. Thus, as petition-

ers themselves recognized in their motion to the Elev-

enth Circuit, see Mot. 3 n.2, consideration of their

7 Indeed, petitioners apparently contend that the court of

appeals was required to rule on their motion to dismiss not

only with regard to Count 1, as to which the court of appeals

granted them a limited right of intervention, but also as to

Counts 2, 3, and 4, as to which they are not parties.

11

motion to dismiss the case for lack of jurisdiction

was, at best, dependent on the court of appeals’ choos-

ing, in its discretion, to exercise pendent appellate

jurisdiction over otherwise nonappealable jurisdic-

tional issues in conjunction with review of the appeal-

able intervention issue.

This was not an appropriate case for the exercise

of pendent appellate jurisdiction. Because pendent

appellate jurisdiction provides an exception to the

finality requirement for appellate review, it has been

exercised by the courts of appeals only in extraordi-

nary circumstances. See Akerman v. Oryx Communi-

cations, Inc., 810 F.2d 336, 339 (2d Cir. 1987). The

factors that have informed the courts of appeals’

exercise of discretion to assume pendent appellate

jurisdiction overwhelmingly counsel against exercise

of such jurisdiction in this instance. For example,

there was no overlap of appealable and nonappealable

issues in this case. See, e.g., Howard v. Parisian, Inc.,

807 F.2d 1560, 1565 (11th Cir. 1987) ; People of Illinois

ex rel. Hartigan v. Peters, 861 F.2d 164, 166 (7th

Cir. 1988). In addition, the record on appeal was

insufficient to decide the jurisdictional issues, as illus-

trated by the fact that Farm Interests based its mo-

tion in part on an appendix to its motion papers con-

taining materials that were not in the record on ap-

peal and some of which were not in the district court

record. See Colorado v. Idarado Mining Co., 916 F.2d

1486, 1491 (10th Cir. 1990), cert. denied, 111 S. Ct.

1584 (1991). Finally, the court of appeals’ decision

not to rule on their motion leaves petitioners in pre-

cisely the same position they would have occupied had

the district court permitted them to intervene in the

first instance. Had the district court done so, they

would have had no right to appeal an adverse district

12

court decision—even on a jurisdictional issue—until

the district court issued a final judgment in the case.

Contrary to petitioners’ contention (Pet. 12-13),

the Eleventh Circuit’s treatment of Farm Interests’

motion is not inconsistent with this Court’s state-

ments that a court is obliged to examine the standing

of parties to determine if Article III jurisdiction

exists. See, e.g., Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) (amendment to statute at issue

eliminated standing of appellee and rendered case

moot) ; Bender v. Williamsport Area School District,

475 U.S. 534, 541 (1986) (vacating court of appeals

decision because respondent had no standing to ap-

peal) ; Juidice v. Vail, 480 U.S. 327, 331 (1977) (al-

though not raised by the parties, “we are first obliged

to examine the standing of appellees’). None of the

cases cited by petitioners involved interlocutory ap-

peals on limited issues. Moreover, none of those cases

suggests, as petitioners would have it, that the rule

requiring a court to notice jurisdictional defects ob-

liges a court of appeals to disregard the final judg-

ment rule and to exercise pendent appellate jurisdic-

tion so as to rule prematurely on otherwise nonap-

pealable issues.

3. Wholly apart from the fact that exercise of

pendent appellate jurisdiction was inappropriate, pe-

titioners have no standing to assert the sovereign

immunity defenses they seek to raise. First, petition-

ers do not, and cannot, assert that they are entitled

to sovereign immunity under the Eleventh Amend-

ment or any other constitutional or statutory provi-

sion. Instead, petitioners seek to raise a sovereign

immunity defense that is available only te third par-

ties—the state defendants (who would be barred by

the final judgment rule from presenting the question

13

to the court of appeals at this time). See, e.g.,

McGowan v. Maryland, 366 U.S. 420, 429 (1961);

United States v. Raines, 362 U.S. 17, 22 (1960).

Moreover, their claims do not fall within any recog-

nized exception to the general rule against third-

party standing. See, e.g., Hodel v. Irving, 481 U.S.

704, 711-712 (1987); Hisenstadt v. Baird, 405 U.S.

438, 443-446 (1972). Finally, petitioners’ claim to

third-party standing is particularly weak because their

own right of intervention is narrow, limited only

to Count 1.*° As the court of appeals noted, the state

defendants “have already raised many of [petition-

ers’| issues with the district court” (Pet. App. A25)

and petitioners “are adequately represented on the

jurisdictional issues by the [state] defendants.” /bid.°

8 Petitioners do not seek review of the court of appeals’

determination that they are not entitled to intervene as to

Counts 2, 3, and 4.

* The state defendants filed motions in the district court to

dismiss this action on the following grounds: the United

States had not in Counts 1 and 2 pled a viable cause of action

under state law because the United States lacked standing to

invoke the Florida Environmental Protection Act, Fla. Stat.

Ann. § 403.412 (West 1988 & 1991), and because the subject

matter was committed to the state defendants’ discretionary

authority ; Counts 1 and 2 did not state causes of action under

state or federal law; the claims did not present justiciable is-

sues under Article III of the United States Constitution; the

United States had not exhausted administrative remedies;

the abstention doctrine required dismissal; the federal com-

mon law of nuisance, not state law, was applicable; and the

agreements that were the subject of Counts 3 and 4 were not

enforceable contracts under the governing federal law. The

district court rejected all of those contentions by order entered

January 12, 1990,

14

Petitioners accordingly have no standing to assert

the State’s sovereign immunity defenses.”°

4, Finally, petitioners’ substantive claim that the

district court was without jurisdiction is mistaken.

Article III, Section 2 of the Constitution provides

that “[t]he judicial Power shall extend * * * to Con-

troversies to which the United States shall be a

Party.” " In a long line of cases, this Court has held

10 Contrary to petitioners’ contention (Pet. 14), it is peti-

tioners’ position in this Court, not the United States’ claims

in district court, which is most comparable to Eugene

Diamond’s status in Diamond v. Charles, 476 U.S. 54 (1986).

In Diamond the petitioner, Eugene Diamond, was held to

lack standing to defend in this Court the constitutionality of

a state criminal statute. This Court concluded that only the

State had standing to defend the constitutionality of its

criminal statute. 476 U.S. at 64-67. The State acquiesced in

the court of appeals’ decision, however, and did not appeal to

this Court. 476 U.S. at 63-64. In the absence of an appellant

with standing on the issue presented, Diamond’s appeal was

dismissed for want of jurisdiction. 476 U.S. at 69, 71. Simi-

larly, here only the State or its agencies and officials have a

stake in protecting the State’s alleged immunity from suit in

federal court and such immunity, if it exists, is waivable by

the State. Thus, if, as petitioners claim (Pet. 13), the state

defendants acquiesced on appeal to federal jurisdiction, then

Ciamond would instruct that petitioners have no standing in

this Court to raise such issues. Cf. Delaware Valley Citizens’

Council for Clean Air v. Pennsylvania, 678 F.2d 470, 475

(3d Cir.), cert. denied, 459 U.S. 969 (1982) (entry of consent

judgment was a waiver of immunity to federal court juris-

diction).

11 Accordingly, 28 U.S.C. 1345 provides:

Except as otherwise provided by Act of Congress, the

district courts shall have original jurisdiction of all civil

actions, suits or proceedings commenced by the United

States, or by any agency or officer thereof expressly

authorized to sue by Act of Congress.

15

that there is no constitutional barrier to Article III

jurisdiction where the United States sues a State in

federal court. As the Court has stated,

[N ]othing in [the Eleventh Amendment] or any

other provision of the Constitution prevents or

has even been seriously supposed to prevent a

State’s being sued by the United States. The

United States in the past has in many cases been

allowed to file suits in this and other courts

against States, see, e.g., United States v. Texas,

143 U.S. 621; United States v. California, 297

U.S. 175, with or without specific authorization

from Congress, see United States v. California,

332 U.S. 19, 26-28.

United States v. Mississippi, 380 U.S. 128, 140 (1965).

See also Nevada v. Hall, 440 U.S. 410, 420 n.19

(1979); Employees of the Dep’t of Public Health &

Welfare v. Dep’t of Public Health & Welfare, 411

U.S. 279, 286 (1973); Monaco v. Mississippi, 292

U.S. 318, 329 (1934) (federal jurisdiction of a suit

by the United States against a State is inherent in

the constitutional plan); United States v. Minnesota,

270 U.S. 181, 195 (1926). -

Contrary to petitioners’ contention (Pet. 14-16),

neither Pennhurst State School & Hospital v. Halder-

man, 465 U.S. 89 (1984), nor Atascadero State Hos-

pital v. Scanlon, 473 U.S. 234 (1985), is to the con-

trary. The Court’s decisions in those cases were

based squarely on the Eleventh Amendment, which,

as the line of cases cited above has made clear, does

not apply to suits brought by the United States.

Moreover, the principle that Eleventh Amendment

immunity does not extend to suits brought by the

United States has been reiterated in cases decided

since Pennhurst and Atascadero. For example, in

16

Pennsylvania vy. Union Gas Co., 491 U.S. 1, 11

(1989), the Court stated:

[T]he Constitution presents no barrier to law-

suits brought by the United States against a

State. For purposes of such lawsuits, States are

naturally just like “any nongovernmental en-

tity”; there are no special rules dictating when

they may be sued by the Federal Government,

nor is there a stringent interpretive principle

guiding construction of statutes that appear to

authorize such suits. Indeed, this Court has gone

so far as to hold that no explicit statutory au-

thorization is necessary before the Federal Gov-

ernment may sue a State.

As recently as last Term, in Blatchford v. Native

Village, 111 S. Ct. 2578, 2582 (1991), this Court

reaffirmed the principle that States waived their im-

munity against suits by the United States when they

adopted the Constitution. See also Welch vy. Texas

Dep't of Highways & Public Transportation, 483

U.S. 468, 487 (1987); West Virginia v. United

States, 479 U.S. 305, 311 (1987).

Petitioners’ reliance (Pet. 15) on Will v. Michigan

Dep’t of State Police, 491 U.S. 58 (1989), and

Gregory v. Ashcroft, 111 S.Ct. 2395 (1991), is also

in error. Both of those cases involved the question

whether, as a matter of substantive law, federal

statutes applied to the conduct at issue. No compar-

able question is presented by petitioners here.

Rather, petitioners’ argument is that state-law claims

by the United States may be brought only in state

court because no-state or federal statute clearly pro-

vides that such state-law claims may also be brought

in federal court. As we have shown, that argument

is squarely foreclosed by this Court’s decisions.

17

Finally, contrary to petitioners’ suggestion (Pet.

14-15), Article III’s grant of jurisdiction to the fed-

eral courts in suits in which the United States is a

party is not limited to cases brought under federal

law.” Article III jurisdictional requirements are sat-

isfied by the mere presence of the United States al-

leging a justiciable controversy. The United States

may bring state law claims, as well as federal law

claims, in federal court under the jurisdiction con-

ferred by Article III and 28 U.S.C. 1345."

12 Petitioners err in their apparent assumption (Pet. 16)

that all of the United States’ claims are solely state law claims.

As to the two contract claims, the right of the United States

to seek redress for breach of duly authorized contractual trans-

actions is a federal right, even though the applicable federal

rule may select state law or general contract law principles.

See, e.9., West Virginia Vv. United States, 479 U.S. 305, 308-309

(1987) ; Priebe & Sons, Inc. v. United States, 332 U.S. 407,

411 (1947); Clearfield Trust Co. v. United States, 318 U.S.

368, 366-367 (1943).

13 See, e.g., Loftin Cotton v. United States, 52 U.S. 228, 231

(1850) (upholding United States’ right to bring a civil action

in federal court for trespass under state law against a person

for cutting trees on public lands; the United States “‘may

bring suits to enforce their contracts and protect their prop-

erty, in the State courts, or in their own tribunals administer-

ing the same laws’); United States v. California, 655 F.2d

914, 918 (9th Cir. 1980) (the “federal government, of course

may sue a state in federal court under any valid cause of

action, state or federal’’) ; United States for and on behalf of

Santa Ana Indian Pueblo v. University of New Mevrico, 731

F.2d 703, 705 (10th Cir.), cert. denied, 469 U.S. 853 (1984)

(Constitution provided State no immunity from suit in federal

court in action by United States for ejectment and trespass

damages); United States v. California, 328 F.2d 729 (9th

Cir.), cert. denied, 379 U.S. 817 (1964) (Constitution grants

jurisdiction over civil actions brought by the United States

against a State without specific consent regardless of the na-

18

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

ELLEN J. DURKEE

Attorney

OCTOBER 1991

ture of the controversy) ; United States v. West Virginia, 537

F. Supp. 388 (S.D. W. Va.), aff’d on other grounds, 764 F.2d

1028 (4th Cir. 1985), aff’d, 479 U.S. 305 (1987) (holding that

in contract action brought by United States, State had no

constitutionally protected immunity from suit in federal

court). Cf. United States v. Puerto Rico, 551 F. Supp. 864,

865 (D. P.R.), aff’d, 721 F.2d 832, 833 (1st Cir. 1983) (the

United States can invoke federal jurisdiction to challenge the

Coiimonwealth’s decision on a water quality permit; the

United States is not required to seek redress in Common-

wealth’s administrative or judicial forums).

Ww U. S. GOVERNMENT PRIMTING OFFICE; 1991 282061 45102