Petitioners Reply Brief — United States v. Stauffer Chemical Co.

Office - Supreme Court, U.S.

FILED

OCT 25 1963

No. 82-1448

a ~ STEVAS.

CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

Vv.

STAUFFER CHEMICAL COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

REX E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

I TE NS SS SET

TABLE OF AUTHORITIES

Cases: Page

American Medical International, Inc. v. Secretary

f£ ip A 2s §:) nee 9,10

Bunker Hill Co. v. EPA, 658 F.2d 1280 .....0...000...... 2

Commissioner V. Sunnen, 337 U.S. 591 ...........2220000- 10

Consumer Product Safety Comm'n v. GTE Syl-

CURE, FRG., BEr Ub Be oeineee ean 20

Continental Can Co. v. Marshall, 603 F.2d 590........ 10,11

Marshall v. Barlow’s, Inc., 486 U.S. 307 ...00..000........ 8,12

Michigan v. Long, No. 82-256 (July 6, 1983)........ 6

Montana v. United States, 440 U.S. 147 ........ 2, 4, 6, 7, 11

Morrison-Knudsen Construction Co, v. Director,

OWCP, No. 81-1891 (May 24, 1983) ...000000000000... 16

Parklane Hosiery Co. v. Shore, 439 U.S. 322 ............ 6,7

Starker v. United States, 602 F.2d 1341 ........0....... 10

Stauffer Chemical Co., In re, 14 Env’t Rep. Cas.

(BNA) 17387, aff'd, 647 F.2d 1075.00.00... 4,8,12

True Drilling Co. v. Donovan, 703 F.2d 1087........ 10

Union Carbide Corp. v. Commissioner, 671 F.2d

OO sscicncirnisaonines oicccatsenieouctanentbocasiiaietatastiea tastes an aeeiaaiaee 11

United States v. Clouston, 623 F.2d 485 o000000000... 12

United States v. ITT Rayonier, Inc., 627 F.2d 996.. 10

United States v. Tingey, 30 U.S. (5 Pet.) 114........ 17

Constitution and Statutes:

ig Ml tees Bet rsa 12

Clean Air Act, 42 U.S.C. (Supp. V) 7401 et seq.:

§ 114(a) (2), 42 U.S.C. (Supp. V) 7414(a)

(ETT ' scnscuistinaniisshscsiatsineateisaibealameseinidtasecaiaiadia asia neaeeliaaiaa passim

§ 114(c), 42 U.S.C. (Supp. V) 7414(c) .......... 15, 16

§ 114(d), 42 U.S.C. (Supp. V) 7414(d) .......... 17,18

§ 206(a), 42 U.S.C. (Supp. V) 7525(a) ......... 19

§ 206(b), 42 U.S.C. (Supp. V) 7525(b)-......... 19

§ 206(c), 42 U.S.C. (Supp. V) 7525(c) —....... 18, 19

§ 208, 42 U.S.C. (Supp. V) 7542 0. 18

Solid Waste Disposal Act, 42 U.S.C. (& Supp. V)

6901 et seq.:

§ 3001 (b) (3) (B) (ii) (II), 42 U.S.C. (Supp.

V) 6921 (b) (3) (B) (ii) (TT) 15

§ 3007 (a), 42 U.S.C. (Supp. V) 6927 (a)........ 15, 16

Il

Constitution and Statutes—Continued: Page

§ 3007(b) (1), 42 U.S.C. (Supp. V) 6927(b)

Sa a 15, 16

§ 3007(b) (2), 42 U.S.C. (Supp. V) 6927(b)

Tn, aieasiemmanenensmnanenocesotaesens 15

Trade Secrets Act, 18 U.S.C. 1905.00.00. 15

EI. s seemsnnensncavcosensonsooseonseoes 17

I scsaseseneseceesenessoosecoooococons 12

41 U.S.C. (Supp. V) 401 ...22..........ccccccssccscsccssscseeees 17

41 U.S.C. (Supp. V) 508 uuu... eceseecessceesesees 17

Re Rr I VP BOG ncaa seesneencennecnvnonvensense 17

Miscellaneous:

48 Fed. Reg. 37110 (1988) ...............ccceeeesseeeseceeeeees 18

Restatement (Second) of Judgments (Tent. Draft

ses censnecaneninenaeavonsons 7

Restatement (Second) of Judgments (Tent. Draft

a esimanneereccebononsen 10

Restatement (Second) of Judgments (1982)........ 3,7, 10

Second Supplemental Appropriations for Fiscal

Year 1971: Hearing on H.R. 8190 Before the

Senate Comm. on Appropriations, 92d Cong., 1st

a 17

Staff of Senate Comm. on Public Works, 93d Cong.,

2d Sess., A Legislative History of the Clean Air

Act Amendments of 1970 (Comm. Print 1974).. 18-19

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-1448

UNITED STATES OF AMERICA, PETITIONER

v.

STAUFFER CHEMICAL COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

I

Our threshold argument in this case is that the United

States may not be collaterally estopped from litigating a

question of statutory interpretation governing the rela-

tionship between a federal agency and members of a

large class of businesses subject to the agency’s jurisdic-

tion by the judgment, rendered by the court of appeals

for a different circuit, in a different case involving the

same private party but arising from an unrelated trans-

action. As in No. 82-849, United States v. Mendoza, the

respondent has not taken issue with our central conten-

tions.’ The thrust of respondent's answering argument

instead is that our analysis, while applicable in other

! Copies of our opening brief and reply brief in Mendoza have been

provided to respondent.

(1)

2

contexts, should not prevail where collateral estoppel is

being used defensively by a party to the prior suit

(Resp. Br. 25-26).

The distinction drawn between defensive and offensive

use of collateral estoppel is, we submit, unsound (see

pages 6-9, infra). In addition, the amorphous “bal-

ancing calculus” that the respondent proposes (Br. 25)

to govern the scope of the expansive collateral estop-

pel doctrine it favors is incapable of providing the

certainty and foreseeability of outcome that is necessary

if judicial economy is to be achieved in governmental

litigation.? Adoption of the rule advocated by respondent

would, instead, foster protracted litigation concerning the

various factors that enter the balancing process. By con-

trast, application of traditional rules of stare decisis,

coupled with due regard for an analytical force of the

decisions of sister courts, will promote efficient resolution

of recurring legal controversies. In this case, for instance,

the conflicting decisions of the Ninth and Tenth Circuits

neatly framed the considerations to be addressed by the

Sixth Circuit. Artificially elevating one of these two de-

cisions above the other did not actually yield any judicial

economy.

la. Respondent claims (Br. 20-25), initially, that this

case is governed by the ‘same ‘demand’” doctrine that

limits the “unmixed questions of law’ exception to the

doctrine of collateral estoppel, arguing that, as in Mon-

tana Vv. United States, 440 U.S. 147, 162-163 (1979), the

“legal demands” of Stauffer I and Stauffer II were

“closely aligned in time and subject matter.” As we

explained in our opening brief (at 15-22), however,

while considerable uncertainty attends the “same ‘de

2 We think it telling that respondent is unwilling to take an un-

equivocal position on the elementary hypothetical question we have

posed: whether EPA is bound by Stauffer / to disregard the law

of the Ninth Circuit established in Bunker Hill Co. v. EPA, 658

F.2d 1280 (1981), in dealing with Stauffer’s plants located in the

Ninth Circuit. See Resp. Br. 30 & n.29.

3

mand’”’ rule, it necessarily is limited to circumstances in

which the successive cases are alike in material respects

in addition to the underlying legal issue. Respondent

claims (Br. 21-22) that Stauffer I and Stauffer II were

alike in material respects and argues that the distinguish-

ing features we have noted (U.S. Br. .17-18) lack legal

significance. In our view, the situation is precisely the

contrary. Most of the factual similarities adduced by

respondent (Br. 22) establish no genuine identity be-

tween the cases that goes beyond the question presented

itself." Other common features of the two cases are sim-

ply irrelevant, for they shed no light upon the pure ques-

tion of statutory interpretation presented.‘

Immaterial similarities such as those re’ied upon by

respondent cannot be determinative for purposes of ap-

plying the “same ‘demand’ ” rule, lest the unmixed ques-

tions of law doctrine be swallowed by its limiting excep-

tion. As noted in our opening brief (at 18 n.10), the

Restatement (Second) of Judgments (§ 28 illustrations 1

and 2, at 276 (1982)) treats as unrelated “demands”

successive personal injury damage actions brought

against a municipality by a single plaintiff arising out

of separate tortious acts, teaching that a judgment for

the municipality on sovereign immunity grounds in the

first does not bar the plaintiff from arguing in the sec-

3 For example, the facts that EPA had in each case designated the

contractor-representative in question as its “representative” for pur-

poses of the pertinent stationary source inspection provisions of the

Clean Air Act, and that Stauffer “welcomed” inspection by govern-

ment employees who accompanied the contractor-representatives,

while barring the latter, do not establish any significant identity

between the two cases. Rather, without these facts the common

legal question simply would not be presented.

4 £.9., the fact that each case arose out of EPA’s overview inspec-

tion program; that respondent sought in each case to condition

accession to the inspection upon execution of a confidentiality agree-

ment it had prepared; and that the search warrant was issued on

an ex parte basis.

4

ond that sovereign immunity should be rejected. We sub-

mit that it should make no difference for this purpose

that both actions arose out of traffic accidents involving

municipal personnel, or even that both accidents occurred

on the same date, and involved a similar kind of alleged

negligence. Obviously, none of these factual similarities

sheds any light upon the purely legal question whether

sovereign immunity should continue to be recognized. In

the present case, too, the issue is purely legal in charac-

ter, and may be determined without regard to the factual

context. Moreover, the features that distinguish Stauffer

I and [/—their genesis in separate transactions, arising

independently through the administrative process, and

subject to determination in different courts—underscore

the justification for determination of the underlying legal

issue on its merits.

b. Respondent also argues (Br. 19, 23, 31) that this

case involves deliberate manipulation of forums and

timing of litigation so as to enable the agency to reliti-

gate the underlying legal issue. As we have explained

(U.S. Br. 20-21, 30), that appears to have been a

vice of the government’s litigation conduct in Montana

v. United States, supra, as it was perceived by the Court.

But respondent’s claim that such tactics were employed

here is utterly without foundation in the record or

otherwise. Respondent misrepresents (Br. 23) the im-

port of the Stauffer J district court’s remark that “EPA’s

counsel apparently wanted to make this a test case.”

Relitigation was not, and obviously could not have been,

an issue in Stauffer 1; the Stauffer I court plainly meant

only to observe that EPA chose to stand firm on its legal

position rather than to accede to respondent’s insistence

that agency employees make the inspection alone. Jn re

Stauffer Chemical Co., 14 Env’t Rep. Cas. (BNA) 1787,

1741 (D. Wyo. 1980). Moreover, the district court actu-

ally found that the inspection site in Stauffer J “was

5

chosen * * * on the basis of general oversight selection

criteria.” Id. at 1739.

The record in this case similarly suggests only that

the inspection that gave rise to this case arose out of the

routine operation of EPA’s oversight inspection program

(Pet. App. 44a-45a). And given the nature of that pro-

gram, which covers approximately 10% of all major

stationary sources of air pollution annually (see U.S. Br.

2 n.1), and the extent of respondent’s operations (see

U.S. Br. 29 n.14), it would have been surprising if sev-

eral of respondent’s facilities were not subject to over-

sight inspection within a period of a vear.

Respondent nonetheless echoes (Br. 23) Judge Jones’

suggestion (Pet. App. 38a) that the maintenance of this

case entails deliberate relitigation. But both respondent

and Judge Jones ignore the fact that the attempt to

inspect respondent’s Mt. Pleasant, Tennessee, facility

antedated the initial inspection attempt at respondent’s

Wyoming plant and that this case actually reached the

court of appeals on respondent’s appeal taken from the

district court’s decision favoring the government, which

was rendered before the Tenth Circuit ruled on the merits

in Stauffer I. And as respondent emphasizes ‘Br. § n.8),

there was no predicate for its collateral estoppel claim

until the court of appeals ruled in Stauffer I.’ Under re-

spondent’s view, the United States apparently was re-

quired to single out one of respondent’s plants as the sub-

ject of a test case, and to immunize all of respondent’s

other facilities from the agency’s uniformly applied in-

terpretation of the Clean Air Act inspection provisions

during that litigation, presumably until a ruling had been

rendered on the issue by the highest available court.

Thus, although this case, like Montana itself, involves

litigation commenced roughly contemporaneously, that

pattern results here from even-handed administration

5 Thus respondent’s collateral estoppel argument seeks, anorna-

lously, to overturn the district court decision below on preclusion

grounds not in being when the district court ruled.

6

of the law as to all similarly situated persons, rather

than the seemingly manipulative relitigation disapproved

in Montana. |

2. Briefly stated, our argument is that, unlike its

application to issues of law that arise in purely pri-

vate litigation, invocation of collateral estoppel against

the government to preclude determination of a question

of law affecting the rights or duties of a class of simi-

larly situated persons would undermine the existing sys-

tem for evolution of the public law. The result would be

to encourage excessive appellate litigation on questions of

first impression, while precluding appeal on recurring

questions of substantial importance (see U.S. Br. 22-26).

Cf. Michigan v. Long, No. 82-256 (July 6, 1983), slip op.

10 n.8. And we submit that. as applied where there is an

identity of parties in successive lawsuits, issue preclu-

sion would foster unequal treatment of persons similarly

situate’, and compromise the government’s salutary prac-

tice of seeking certiorari only selectively, in those in-

stances where the Court’s traditional criteria for fur-

ther review appear to be satisfied (see U.S. Br. 26-31).

Respondent does not suggest that these considerations are

without force. Nevertheless, in the “balancing calculus”

respondent proposes (Br. 25), they are claimed to be

outweighed by the “defensive” nature of the estoppel

applied by the court of appeals (Br. 19-20, 28-31).

Neither respondent’s general argument nor its character-

ization of this case as a defensive application of collateral

estoppel withstands examination.

a. Contrary to respondent’s argument (Br. 19-20),

while offensive use of collateral estoppel stands, in cer-

tain respects, on a less favored footing than its defensive

counterpart, see Parklane Hosiery Co. v. Shore, 439 U.S.

322, 329-331 (1979), it does not follow that the law em-

bodies an uncritical preference for defensive applications.°

*In its “defensive” application collateral estoppel bars “a plain-

tiff * * * from asserting a claim that the plaintiff had previously

7

To be sure, Parklane Hosiery reviews in some detail par-

ticular circumstances that create a special potential for

unfairness in offensive applications of collateral estoppel.

The Court held that when any of these circumstances—or

any other factor—actually produces unfairness in any

given case, offensive issue preclusion is not to be permitted.

Id. at 331. But the detailed discussion in Parklane

Hosiery of the hazards of offensive collateral estoppel

is merely an application of the general rule, equally ap-

plicable to defensive uses, that collateral estoppel should

not be applied where “special circumstances warrant an

exception to the normal rules of preclusion.” Compare

Montana v. United States, 440 U.S. at 155, with Park-

lane Hosiery Co. v. Shore, 439 U.S. at 331. Thus no

general rule uncritically favoring collateral estoppel in

defensive uses can be extracted from Parklane Hosiery;

nor need unfairness resulting from such use be counte-

nanced on the authority of that case."

Rather than mechanical reliance upon labels such as

“offensive” and “defensive,” Montana and Parklane

Hosiery require examination of the actual effect of issue

preclusion in a particular class of cases. That is precisely

what we have done here by focusing attention upon the

unique dynamics of government litigation on recurring is-

sues of law and the inequity that would result from issue

preclusion in these circumstances, Respondent answers

litigated and lost against another defendant.” Parklane Hosiery

Co. Vv. Shore, 439 U.S. 322, 329 (1979). In its “offensive” use “a

plaintiff is seeking to estop a defendant from relitigating the issues

which the defendant previously litigated and lost against another

plaintiff.” Ibid.

7In Parklane Hosiery, the Court described its approach as “es-

sentially” that of the Restatement “which recognizes that ‘the dis-

tinct trend if not the clear weight of authority is to the effect that

there is no intrinsic difference between “offensive” as distinct from

“defensive” issue preclusion * * *.’” 439 U.S. at 331 n.16, quoting

Restatement (Second) of Judgments § 88 reporter’s note at 99

(Tent. Draft No. 2, 1975) (presently Restatement (Second) of

Judgments § 29 reporter’s note at 299 (1982) ).

8

(Br. 28-31) that application of collateral estoppel is re-

quired in the circumstances of this case to avoid unfair-

ness to it. But that argument rests almost entirely upon

its unsupported claim that this case involves manipula-

tive relitigation. See pages 4-6, supra. In addition,

respondent urges (Br. 29-30) that collateral estoppel

will not produce inequity among similarly situated per-

sons in this case, because the Sixth Circuit went on to

reach the merits here. But that is true only because of

the unusual dual holding of the court of appeals, which

is the product of the court’s failure to follow its col-

lateral estoppel holding to its logical conclusion, rather

than a result of collateral estoppel itself.

b. In any event, it is far from clear that this case is

properly regarded as a defensive application of collateral

estoppel. Stauffer I actually arose on respondent’s mo-

tion to quash. See 14 Env’t Rep. Cas. at 1737. And this

case arose upon the concurrent filing of respondent’s

motion to quash and the government’s contempt applica-

tion (see Pet. App. 2a, 44a). Plainly it would be arbi-

trary for collateral estoppel purposes for anything to

turn upon the fact that one party or the other won the

race to the courthouse to initiate adversary proceedings.

See Resp. Br. 24 n.22. Of course, the government first

sought the assistance of judicial process in each case by

securing search warrants when respondent refused entry

to the designated contractor-representatives, and the

government “triggered” the entire dispute when it under-

took oversight inspections of respondent’s facilities. But

even if these actions could be regarded as the functional

equivalent of initiation of litigation, they do not entail

harassment through redundant litigation such as col-

lateral estoppel is intended to restrain. As we have al-

ready explained, this case results from even-handed appli-

cation of the law to all persons similarly situated, rather

than from any design to relitigate. Cf. Marshall v. Bar-

low’s, Inc., 436 U.S. 307, 320-321 (1978). Indeed, only by

affording respondent special treatment, unavailable to

9

those in a comparable position, could the government

have avoided the claim of relitigation. Accordingly, what-

ever label may be applied to the preclusion doctrine as

applied in this case, the policies that underlie the doc-

trine have no application here.

ce. Petitioner also urges ‘Br. 25-28) that the identity

of parties in this case and Stauffer I requires preclusion.

Petitioner largely ignores our arguments on this score

(U.S. Br. 27-31). One point should be emphasized, how-

ever. In this instance, respondent does not hesitate to

follow its argument to its logical conclusion, urging

(Br. 32) that the government should have sought cer-

tiorari in Stauffer I at the time of the court of appeals’

decision in that case, notwithstanding the fact that the

case did not then meet the conventional criteria for re-

view in this Court, and that other cases certain to affect

the justification for further review were at that moment

pending before the Ninth and Sixth Circuits. Respondent

does not, however, indicate whether this Court should be

expected to alter its traditional criteria for certiorari to

accommodate review in these circumstances, or, if not,

what effect then would be given to the denial of certiorari

that would in all likelihood have resulted (see U.S. Br.

25 n.13). The expansive application of collateral estop-

pel respondent advocates has the potential considerably

to disrupt this Court’s certiorari practices.

d. Respondent claims that the decision of the court of

appeals is consistent with the thrust of appellate case

law. (Br. 23-24, 27-28). We disagree. With one exception,

the cases upon which respondent relies simply reflect no

consideration of the unique dynamics of government liti-

gation that require limitation of issue preclusion. The

exception is American Medical International, Inc. v. Sec-

retary of HEW, 677 F.2d 118, 121-124 (D.C. Cir. 1981),

which holds that estoppel is not to be applied so as to

preclude litigation of recurring questions of public law.

As respondent notes (Br. 27), the court declined to ex-

tend that reasoning to litigation between the parties to a

prior action concerning the issue previously decided ad-

10

versely to the government. 677 F.2d at 124 &n.46. But

the court did not apply estoppel against the government

in favor of the particular party that had previously liti-

gated the recurring issue because to do so would have re-

quired unequal treatment of similarly situated parties.

Contrary to respondent’s claim ‘Br. 27 n.25), the reason-

ing supporting that disposition was not limited to parties

that are subsidiaries of a single corporate entity. Rather,

the court’s reasoning was unqualified (677 F.2d at 124,

quoting Restatement (Second) of Judgments § 68.1, at 33

(Tent. Draft No. 4, 1977)°):

The consensus of the legal profession is that “[{rJe-

fusal of preclusion is ordinary justified if the effect

of applying preclusion is to give one person a

favored position in current administration of the

law.”

The District of Columbia Circuit emphasized that “([cl]ol-

lateral estoppel ‘is not meant to create vested rights in

decisions .. . thereby causing inequities among [similarly

situated parties].’" 677 F.2d at 124, quoting Commis-

sioner V. Sunnen, 337 U.S. 591, 599 (1948). Thus, the

only case cited that directly addresses the arguments

raised here rejects respondent’s position.’

* Presently Restatement (Second) of Judgments § 28 comment c

at 278 (1982).

* Other cases cited by respondent, even if correctly decided, are

also distinguishable in other respects. United States v. ITT Ray-

onier, Inc., 627 F.2d 996 (9th Cir. 1980), entailed a fact-bound

question that had no application to other parties: the interpretation

of a particular state-issued pollutant discharge permit. Continental

Can Co. ¥. Marshall, 603 F.2d 590 (7th Cir. 1979), also involved a

fact-bound question: the economic feasibility of particular noise

reduction devices for a particular class of manufacturing equipment.

603 F.2d at 594-595. Moreover, because the ensuing cases al] arose

in the same forum as the initial one, the Occupational Safety and

Health Review Commission, many of the considerations relevant

here had no application. Finally, the result in Continental Can ap-

pears to rest upon a “pattern of harassment of a particular em-

ployer.” True Drilling Co. v. Donovan, 708 F.2d 1087, 1092 (9th

Cir. 1983). Starker v. United States, 602 F.2d 1341 (9th Cir. 1979),

11

Il

Respondent’s arguments on the underlying question of

statutory interpretation generally recapitulate the court

of appeals’ analysis and thus are addressed in our open-

ing brief. Several] points raised, however, warrant addi-

tional comment.

la. Respondent seriously distorts the question pre-

sented for decision, by suggesting that this case concerns

the “power [of] private contractors to force entry’ into

private premises (Br. 48) or to obtain search warrants

and execute them (Br. 45-47). The issue decided by the

court of appeals and the one we have presented for re

view in this Court is whether a formally designated

contractor-represeniative of the EPA Administrator may

qualify as the “authorized representative’ of the Ad-

ministrator for purposes of Section 114/a)(2) of the

Clean Air Act, that is, to enter the premises of an cpera-

tor of an air pollution source for the purpose of “sam-

pl{ing] any [regulated] emissions.” This question is

purely one of statutory interpretation, and concerns only

the identity of the persons who may carry out monitor-

ing and inspection tasks of a technical nature.

Our submission is that the language and legislative

history of the statute allow for the use of such contractor-

representatives. By contrast, questions as to who may go

into court to seek a warrant to enforce the right of in-

spection conferred by Section 114(a) (2) when admission

has been denied to a properly authorized agent of the

appears to rest on the court’s perception that the successive cases

presented a fact-bound question, arose out of related and indistin-

guishable transactions, and entailed deliberate relitigation of the

kind condemned in Montana. 602 F.2d at 1343-1348. (We believe that

Starker gives improper weight to an unappealed district court deci-

sion in a case involving a different party, and mischaracterizes the

relationship between the successive cases considered.) Union Car-

bide Corp. v. Commissioner, 671 F.2d 67 (2d Cir. 1982), may be said

to conflict with the position we urge here. But that decision, like

the others upon which respondent relies, reflects no consideration

of the arguments advanced here.

12

EPA Administrator, and who may execute such a war-

rant by presenting it to the operator of a source subject to

inspection, are not addressed by Section 114(a) (2) or by

any other provision of the Clean Air Act. Indeed, Section

114(a) (2) makes no mention at all of any warrant re-

quirement for inspection. Cf. Marshall v. Barlow's, Inc.,

436 U.S. at 317 n.12. Rather, these questions, which are

not part of this case, are governed by general considera-

tions of reasonableness embodied in the Fourth Amend-

ment.*°

EPA has never claimed that contractor-representatives

are authorized to secure warrants to enforce the statu-

tory right of entry. Such a procedure would be contrary

to traditional practices respecting issuance of warrants,

and might well be deemed unreasonable; such a procedure

was not employed in this case (see Pet. App. 7a, 44a)

or in Stauffer I. See 14 Env’t Rep. Cas. at 1738-1739.

Similarly, EPA does not claim that a warrant authoriz-

ing entry may be executed by a contractor-representative;

although we do claim that such a representative may ac-

company the executing official. But once entry pursuant

to a warrant has properly been gained, Section 114(a)

(2) provides that the “authorized representative” of the

EPA administrator may conduct inspections and moni-

toring; nothing in the statute limits the technical aspect

of the inspection to full-time EPA employees.

In this case, of course, no conceivable question arises as

to the manner of forma] execution of the warrant, for the

warrant explicitly prescribed that the right of entry was

to be afforded to “EPA, through its duly authorized full-

time employees, and accompanying, authorized representa-

tives under contract with EPA, * * * for the purpose of

conducting an inspection, sampling, and monitoring pur-

suant to Section 114 of the Clean Air Act” (Pet. App.

10 See also 18 U.S.C. 3105, which authorizes private persons to

assist government officials in executing a search warrant. See

United States v. Clouston, 623 F.2d 485, 486-487 (6th Cir. 1980)

(telephone company employees’ technical assistance to federal agents

in executing search warrant held proper).

13

45a n.1). Moreover, when respondent actually denied

entry to the agency’s designated contractor-representa-

tive, the representative was accompanied by an EPA offi-

cial (Pet. App. 7a). Thus respondent’s claim that this

case entails consideration of the reasonableness of proce-

dures employed to secure or execute search warrants is

spurious. Because these aspects of any entry are con-

trolled by a body of law distinct from Section 114(a)

(2)—including the reasonableness requirements of the

Fourth Amendment as applied in the routine administra-

tive search context—there is no basis for reading tradi-

tional limitations regarding search warrants into Section

114(a)(2)’s explicit grant of authority to carry out

technical monitoring.

b. While the common law tradition respecting execu-

tion of warrants rehearsed by respondent (Br. 45-47)

may have some bearing upon the assessment of the rea-

sonableness of the manner of execution of a warrant (but

see page 12 note 10, supra), respondent has adduced no

evidence that this factor influenced Congress in for-

mulating the inspection provisions of the Clean Air Act.

Moreover, there is no basis for respondent’s assertion

(Br. 47) that Congress would have explicitly sanctioned

use of contractor-representatives had it approved their

use, for contractor participation in emissions monitoring

bears no resemblance to private assistance in an ordinary

search. The most telling indication that Congress made

no connection between emissions monitoring and conven-

tional searches, of course, is that there is no explicit

provision for issuance of search warrants (or for dis-

pensing with them) in Section 114/a) (2). In addition,

the duties assigned to contractor-representatives are ex-

clusively those requiring technical expertise. They do not

entail exploratory rummaging such as might trigger the

special privacy concerns associated with searches for evi-

dence of crime. Rather, Section 114/a)(2) itself care-

fully limits the scope of any inspection to examination of

particular records and monitoring equipment that a plant

14

operator is required to maintain for purposes of the Clean

Air Act, and sampling of regulated emissions.

ce. There is no reason to ignore Congress’s express

determination that inspection and monitoring of regu-

lated emissions may be undertaken by any “authorized

representative” of the Administrator. It is entirely ir-

relevant that another federal agency that is authorized

to employ “authorized representatives” to undertake in-

spections of one kind or another allegedly does not em-

ploy designated contractor representatives (see Resp. Br.

47-48). The practices of agencies other than EPA are

outside the record of this case, may rest on statutory

language or legislative history pertinent to those agen-

cies’ work that is not germane here, and, in any event,

reflect no lega! conclusion about the scope of those agen-

cies’ authority. Indeed, it is most likely that diverse

agency practices simply reflect the special needs arising

from the particular statutory responsibilities of the vari-

ous agencies. For instance, while mine safety inspectors

undoubtedly require in depth technical knowledge, neither

they nor any other agencies are likely to require the

breadth of specialized knowledge required of EPA’s rep-

resentatives engaged in air pollution monitoring (see U.S.

Br. 45-46) ."

2. Respondent continues to rely upon the provisions of

other statutes to attribute to Congress the intent to re-

strict inspections under Section 114(a) (2), even though

there is no evidence that Congress was influenced by the

considerations respondent hypothesizes. For instance,

respondent adduces no direct evidence that Congress

11 Respondent emphasizes (Br. 48 n.57) the absence from statu-

tory grants of inspection authority to other agencies, of language

comparable to the broad grant of authority to “authorized repre-

sentatives” found in Section 114(a) (2). But the inference properly

to be drawn, we submit, is simply that Congress knows how to

limit inspection authority to government employees when it wishes

to do so, and that each statute should be interpreted in conformity

with its language.

15

tailored the inspection provisions of the Clean Air Act

in response to concerns about the adequacy of confiden-

tiality protections covering government contractors. In-

stead, respondent points (Br. 49) to the 1980 Solid Waste

Disposal Act Amendments that imposed criminal penal-

ties upon persons (such as government contractors) that

are not subject to the Trade Secrets Act, 18 U.S.C.

1905.% But even if it could he inferred that this change

was prompted by a simultaneous amendment intended to

make clear that the EPA administrator’s inspection au-

thority under the Solid Waste Act extends to contractors

(see U.S. Br. 43-44), it would not follow that the ab

sence of a similar provision from the Clean Air Act re-

flects Congress’s intention to preclude use of contractors

under that Act.

First, respondent cannot gainsay the fact that Section

114(a) (2) employs precisely the language (“representa-

tive” of the EPA Administrator) that is employed in the

Solid Waste Act inspection provisions to include contrac-

tor representatives among those authorized to conduct

inspections. Second, it is clear beyond cavil that Congress

did not deem it necessary to provide for criminal liability

for contractor-representatives in every situation in which

disclosure of confidential information to such persons was

authorized. For instance, Congress provided criminal

penalties under the Solid Waste Disposal Act for im-

proper disclosure of confidential information by “rep-

resentatives” by amending the public availability provi-

sions of that Act, 42 U.S.C. (Supp. V) 6927(b)(1) and

(2), which authorize disclosures even of confidential in-

formation to “other officers, employees, or authorized

representatives of the United States.” The public avail-

ability provisions of the Clean Air Act, Section 114(c), 42

U.S.C. (Supp. V) 7414/c), however, are identical to those

12 Although respondent cites 42 U.S.C. (Supp. V) 6921(b) (3)

(B) (ii) (II), the directly pertinent provision is evidently 42 U.S.C.

(Supp. V) 6927(b) (2).

16

of the Solid Waste Act, in all relevant respects, except for

the absence of any special criminal penalty provisions for

improper disclosures by persons not subject to the Trade

Secrets Act (see U.S. Br. 34-35).

Thus, although Congress plainly knew that Section

114(c) (like 42 U.S.C. (Supp. V) 6927(a) and (b) (1))

authorizes disclosures to designated contractor-repre-

sentatives performing duties under the Act, it has not

seen fit to impose a similar regime of criminal penalties."

13 Respondent continues to argue (Br. 39-42) that Section 114(c)

of the Clean Air Act does not shed any light upon the proper con-

struction of Section 114(a)(2). But as the court has recently

reiterated, ‘a word is presumed to have the same meaning in all

subsections of the same statute.” Morrison-Knudsen Construction

Co. V. Director, OWCP, No. 81-1891 (May 24, 1983), slip op. 9.

Thus the term “representative” in Section 114(a) (2), as in Sec-

tion 114(c), presumptively includes persons other than employees

and officers.

It is irrelevant for this purpose, moreover, that Section 114(c)

embraces “authorized representatives of the United States” rather

than only “authorized representative[s)"” of the EPA Administra-

tor. While the former term may be broader than the latter, the

difference is not germane here, for the contractor-representatives

at issue are authorized representatives of the Administrator. And

the difference between the two provisions does not in any way

negate the fact that “authorized representatives” (of the United

States) under Section 114(c) includes persons other than “officers

{or) employees” (of the United States). Thus respondent’s sugges-

tion (Br. 40) that the broad formulation of Section 114(c) was

designed to encompass employees of federal agencies other than

EPA simply misses the mark (see U.S. Br. 35 n.21). Respondent

now suggests (Br. 40) that “authorized representatives of the

United States” may also include certain state officials. But if “au-

thorized representatives” need not be employees of the United

States, and may be state officials, who are the agents in fact of

the Administrator, but who are not subject to the Trade Secrets

Act, there is no statutory basis for excluding duly designated con-

tractor-representatives either. We note that the court of appeals

did not embrace respondent’s limiting construction of Section 114(c)

(see Pet. App. 21a-22a).

17

Contrary to respondent’s speculation (Br. 49-50) then,

Congress’s action in amending the Solid Waste Disposal

Act in 1980 does not reflect a conclusion that the available

safeguards against improper contractor disclosure (see

U.S. Br. 46-47) are necessarily inadequate. Accordingly,

the mere absence from Section 114/a) (2) of criminal

penalties for unauthorized disclosure by contractor-

representatives cannot support the artificial constriction

of that grant of authority for which respondent argues.

Respondent’s argument that additional sanctions are

needed for any contractor breaches of confidentiality

should be directed to Congress.

3. Respondent appears to suggest (Br. 44 n.48) that

EPA lacks statutory authority to retain contractor-

representatives for purposes of Section 114(a) (2) of the

Clean Air Act. But the authority of the Executive Branch

to contract for services needed to fulfill statutory respon-

sibilities is an inherent attribute of the sovereignty of the

United States. United States v. Tingey, 30 U.S. (5 Pet.)

114, 127 (1831). See also 5 U.S.C. 3109(b); * 41 U.S.C.

(Supp. V) 401, 503 and 506. Plainly, EPA’s expendi-

ture of agency funds for contractor-representatives is

authorized by Congress. See, e.g., Second Supplemental

Appropriations for Fiscal Year 1971: Hearings on H.R.

8190 Before the Senate Comm. on Appropriations, 92d

Cong., 1st Sess. 1625-1626 (1971).¥

14 Section 3109(b) provides authority to the head of any federal

agency to “procure by contract the temporary * * * or intermittent

services of experts or consultants or an organization thereof,” sub-

ject only to the condition that the expenditures be “authorized by

an appropriation.” It does not, as respondent asserts, require sepe-

rate authorizing legislation for the use of a consultant or expert.

15 Respondent’s reliance (Br. 44 n.48) on OMB Circular No. A-76

is misplaced. First, there is no evidence that Congress had that doc-

ument in mind when it framed Section 114(a) (2). Moreover, EPA

contractor-representatives perform only technical tasks and do not

engage in “regulation” or other “inherently governmental” func-

tions. We note that respondent’s approach to Section 114(a) (2)

conflicts with its approach to Section 114(d). Respondent derides

(Br. 39 n.88) our suggestion (U.S. Br. 36-37) that the Executive

s

18

4. We have already discussed (U.S. Br. 39-42)

respondent’s contention (Br. 38-36) that the legislative

history of the Clean Air Act discloses Congress’s intention

to restrict the term “authorized representative” employed

in Section 114(a) (2) to employees of the EPA. We have

contrasted (Br. 41) the automobile plant inspection pro-

visions of the Clean Air Act §§ 206(c) and 208, 42 U.S.C.

(Supp. V) 7525(c) and 7542, which limit inspection au-

thority to agency employees, with Section 114(a) (2), the

stationary source inspection provision, which uses the

more inclusive term, “the Administrator or his authorized

representative.” Suggesting that the difference in lan-

guage is to be disregarded (Br. 35 & n.34), respondent

asserts that the Conference Report on the 1970 Clean Air

Act Amendments indicates that the House and Senate

versions of the auto plant inspection provisions, which

differed in the same respect, nonetheless were “essentially

the same.” But the passage upon which respondent evi-

dently relies describes not the automobile plant inspection

provisions of the two bills, but the provisions governing

prototype and production line testing.’* The only refer-

ence to the auto plant inspection provisions in the Con-

Branch might responsibly exercise its authority to act through

Section 114(d), yet is quick to assume that in framing Section

114(a) (2) Congress knew of, and relied upon, the OMB Circular

No. A-76, which reflects such Executive self-restraint. We note also

that OMB Circular No, A-76 has recently been reviesed to require

governmental agencies to consider whether functions that are not

essentially governmental in nature could more efficiently be per-

formed by the private sector pursuant to federal] contracts than by

full time governmental employees. See 48 Fed. Reg. 37110 (1983).

16 The passage in question states:

The provisions of the House Bill, and the Senate Amend-

ment revising the procedure under existing law for prototype

testing and authorizing production line testing of new ve-

hicles and engines were essentially the same, except that the

Senate Amendment requires compliance testing of each vehicle

prior to delivery.

Staff of Senate Comm. on Public Works, 98d Cong., 2d Seas., A Leg-

islative History of the Clean Air Amendments of 1970, at 200

19

ference Report simply tracks the statutory language

chosen without making any comment on the differing lan-

guage of the underlying bills.'’ Thus, the Conference Re-

port does not equate “authorized representatives” with

“officers and employees.”

Respondent also points (Br. 35-36) to three unrelated,

unenacted, provisions of the Senate’s version of the 1970

Clean Air Amendments that employ the term authorized

representative in contexts that suggest that agency em-

ployees were contemplated. Obviously, when the statutory

context requires such a limiting construction—as where

“authorized representative” is employed interchangeably

with “officer or employees,” or an “authorized representa-

tive” is characterized as located “in” an agency “field

office” for a particular region—a statute should be inter-

preted accordingly. But respondent can point to no such

limiting language in Section 114(a) (2). Moreover, Sec-

tion 114(c) of the Clean Air”Act as enacted is a telling

indication that Congress did not regard the term “au-

thorized representative” as synonymous with “officer or

employee.” See page 16 note 13, supra. Respondent also

continues to ignore the role of Executive prudence in

determining when a function may appropriately be per-

formed by personnel retained under contract, See pages

17-18 note 15, supra.

5. Our reasons for rejecting respondent’s reliance

(Br, 36-38) upon the legislative history of subsequently

enacted provisions of the Clean Water Act have already

been stated (U.S. Br. 42-43). We have noted the un-

reliability of post-enactment legislative history generally,

and offered as an illustration the characterization of Sec-

tion 114 of the Clean Air Act in the Senate report on a

(Comm. Print. 1974) (Leg. Hist.). Thus the Conference Report

language was directed at the present Section 206(a) and (b) (42

U.S.C. (Supp. V) 7525(a) and (b)) rather than the inspection

provision, Section 206(c) (42 U.S.C. (Supp. V) 7525(c)).

17 “The Administrator's employees may conduct plant inspections

or inspect records upon presentation of appropriate credentials.”

Leg. Hist. 201.

20

“Superfund” bill, which is diametrically opposed to the

characterization of the same provision found in the Sen-

ate Report on the 1972 Clean Water Act upon which

respondent relies, Respondent replies (Br. 38 n.37) that

the Senate version of the Superfund bill was not enacted,

and that a single Senator subsequently wrote to the Ad-

ministrator disavowing the view expressed in the report

in question. We note, preliminarily, that such expressions

of individual views—even when directed to pending legis-

lation and stated publicly before the Congress—are en-

titled to little weight. Consumer Product Safety Comm'n

v. GTE Sylvania, Inc, 447 U.S. 102, 117-118 & n.18

(1980). A fortiori, in the circumstances here, Senator

Simpson’s letter cannot be taken as a reflection of Con-

gress’s intent in enacting Section 114(a) (2) of the Clean

Air Act.’* More to the point, however, respondent’s reply

is misdirected, for it is not our contention that the 1980

Senate Report should be regarded as authoritative evi-

dence of the meaning of Section 114(a) (2). Rather, we

invoke the 1980 report simply to underscore that after-

the-fact legislative history of separate legislation such

as that which respondent relies upon does not afford any

reliable basis for limiting the plain language of Section

114(a) (2). Senator Simpson’s letter surely does not

detract from our point.

For the foregoing reasons and the reasons stated in

our opening brief, the judgment of the court of appeals

should be reversed.

Respectfully submitted.

REX E, LEE

OCTOBER 1983 Solicitor General

18 Respondent’s further claim (Br, 38 n.37) that provisions of

the enacted Superfund Act are not modeled after the Clean Air Act

is an irrelevancy. The pertinent passage in the Senate report on

the forerunner bill (U.S. Br. 42-43) is a characterization of the

Clean Air Act inspection provision, not merely a description of the

proposed Superfund bill.

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