Reply Brief — United States Department of Energy v. Ohio

~ | Supreme Court, U.S.

FOR ARGUMENT Ne a FILED

Nos. 90-1341 and Sair OCT 16 199)

° OFFICE OF THE CLikK

Iu the Supreme Court of the United States “

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF ENERGY, PETITIONER

Vv.

STATE OF OHIO, ET AL.

STATE OF OHIO, ET AL., CROSS-PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF ENERGY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUI?

REPLY BRIEF FOR THE PETITIONER

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20539

202) 514-2217

TABLE OF AUTHORITIES

Cases:

Astoria Federal Sav. & Loan Ass’n v. Solimino,

i eneeuremvenues

BradRey v. United States, 410 U.S. 605 (1973)...

Business Guides, Inc. v. Chromatic Communica-

tions Enters., Inc., 111 S. Ct. 922 (1991) ..........

CPSC v. GTE Sylvania, Inc., 447 U.S. 102 (1980).

Drain Vv. Kosydar, 374 N.E.2d 1253 (Ohio 1978)...

Edelman Vv. Jordan, 415 U.S. 651 (1974) 0.

Girardier Vv. Webster College, 563 F.2d 1267 (8th

EEE et le Bt ca ht OO

Goodyear Atomic Corp. Vv. Miller, 486 U.S. 174

GIES ES Re 2 a a

Gully v. First National Bank, 299 USS. 109

EE ene See ree

Henry Vv. United States, 251 U.S. 393 (1920) ..........

Hoffman v. Connecticut Dep’t of Income Mainte-

nance, 492 U.S. 96 (1989) ......................................

Hutto v. Finney, 437 U.S. 678 (1978) 0...

Indian Towing Co. v. United States, 350 U.S. 61

TE ESRI ED SS A

International Ass’n of Machinists v. Central Air-

I, ME I I I cc crecescnntescccenes

Irwin V. Veterans Admin., 111 S. Ct. 453 (1990). .

Jefferson County Pharmaceutical Ass’n v. Abbott

Laboratories, 460 U.S. 150 (1983) 000... a

Kordel v. United States, 335 U.S. 345 (1948) ..........

McDermott Int’l, Inc. v. Wilander, 111 S. Ct. 807

SES SA ES ee SE a SS a

Missouri Pac. R.R. v. Ault, 256 U.S. 554 (1921)

Ohio Inns, Inc. Vv. Nye, 542 F.2d 673 (6th Cir.

1976), cert. denied, 430 U.S. 946 (1977) _.........

Ohio v. Madeline Marie Nursing Homes, 694 F.2d

EE Tae

Papasan V. Allain, 478 U.S. 265 (1986) SEP eae

Quern V. Jordan, 440 U.S. 332 (1979) 000000000...

Rewis v. United States, 401 U.S. 808 (1971)

Russello v. United States, 464 U.S. 16 (1983)

The Abbotsford, 98 U.S. 440 (1878) sre

Toibb v. Radloff, 111 S. Ct. 2197 (1991) ........... Fe

. 4,5,6

II

Cases—Continued : Page

United States v. Bass, 404 U.S. 336 (1971) .............. 3

United States v. Bramblett, 348 U.S. 503 (1955).... 3

United States v. Braverman, 373 U.S. 405 (1963).. —_.2-3

United States v. Clark, 445 U.S. 23 (1980) ....00000...... 7

United States v. Cook, 384 U.S. 257 (1966) ............. 3

United States v. James, 478 U.S. 597 (1986) _........... 3

United States v. Merriam, 263 U.S. 179 (1923) ...... i 15

United States v. Mississippi Valley Generating Co.,

gtk EF Fs | ees ee ee 3

United States v. N.Y. Rayon Importing Co. ( +2),

Bit FE Ry ee a 6

United States v. Rojas-Contreras, 474 U.S. 231

CTD acceneversesrecesssnnseisevsienncstiiiediasaiaamaannne 11

United States v. Standard Oil Co., 384 U.S. 224

| Re 2

United States v. Turkette, 452 U.S. 576 (1981)... 3

United States v. Yellow Cab Co., 340 U.S. 548

| 4

Constitution and statutes :

8 Ty Fo C® |: ee ore — »

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

§ 318(a), 33 U.S.C. 1828 (a) .......... 8, 10, 12, 13, 15, 18

2 § fit i | acide 13

§ 605 (a), 88 U.S.C. 1866 (a) ............................... 16

Resource Conservation and Recovery Act of 1976,

42 U.S.C. 6901 et seq:

fg fe ft) nx 18

§ 7002 (a), 42 U.S.C. 6972 (a) -.......22-2-eeceeeeneeeeeeee 16

, 2k 1 == eee 12, 14, 15

Phe Tee OT | ee 13

Chale Rev. Gate B GREG ....ececesccccsesessinueniesesesmennan 12, 13, 15

Miscellaneous:

Black’s Law Dictionary (6th ed. 1990) —.....00000...... 9,10

H.R. Conf. Rep. No. 830, 95th Cong., Ist Sess.

(BBG YD .ccvacevccceceesoceeonsnescscipnttniiaaaaiaen 11

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977)... 11

H.R. Rep. No. 111, 102d Cong., Ist Sess. (1991). 7

S. Rep. No. 284, 98th Cong., Ist Sess. (1983)... ; 17

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1341

UNITED STATES DEPARTMENT OF ENERGY, PETITIONER

Vv.

STATE OF OHIO, ET AL.

No. 90-1517

STATE OF OHIO, ET AL., CROSS-PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF ENERGY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

1. The State contends (Resp. Br. 15-20) that,

from a policy perspective, there are good reasons to

hold governmental facilities liable just like private

entities for violations of environmental regulations.

We agree that policy arguments can be made for

and against the application of sovereign immunity

in this context, as in others.' But the resolution of

1 Indeed, the State routinely asserts its own sovereign im-

munity as a defense to avoid imposition of penal sanctions,

(1)

2

this case is not advanced by considering the policy

arguments underlying assertions of sovereign im-

munity, here or elsewhere. Those issues have been

carefully considered by this Court, and out of that

consideration has emerged the long-standing rule that

waivers of sovereign immunity must be clear and

unambiguous. Respondents do not contest that Con-

gress was acquainted with that rule when it enacted

the statutes at issue here. This case therefore turns

on whether those statutes waive federal sovereign im-

munity from civil penalties in a clear and unambigu-

ous fashion, rot on whether it would have been a wise

policy choice for Congress to have done so.

2. The State argues extensively against applica-

tion in this case of the well-established rule that

waivers of sovereign immunity must be “clear and

unambiguous” and will be construed strictly in favor

of the government. Resp. Br. 21-22.

Most of the cases cited by the State in support

of its argument do not involve claims of sovereign

immunity at all, but are instead criminal cases in

which this Court rejected arguments by criminal de-

fendants seeking to take advantage of the general

principle favoring strict construction of criminal stat-

utes. See, e.g., United States v. Standard Oil Co.,

384 U.S. 224 (1966); United States v. Braverman,

see, e.g., Drain Vv. Kosydar, 374 N.E.2d 1253, 1256-1257 (Ohio

1978) (punitive damages not available against the State of

Ohio), as well as in other circumstances, see, e.g., Ohio v.

Madeline Marie Nursing Homes, 694 F.2d 449, 457-462 (6th

Cir. 1982) (Ohio has not waived Eleventh Amendment sover-

eign immunity defense in federal court); Ohio Inns, Inc. v.

Nye, 542 F.2d 673, 680-681 (6th Cir. 1976) (same), cert.

denied, 430 U.S. 946 (1977).

373 U.S. 405, 408 (1963); United States vy. Cook,

384 U.S. 257, 263 (1966): United States v. James,

478 U.S. 597, 604 (1986); United States v. Turkette,

452 U.S. 576, 587 n.10 (1981); United States v.

Bramblett, 348 U.S. 503, 510 (1955); United States

v. Mississippi Valley Generating Co., 364 U.S. 520,

550 (1961); Kordel v. United States, 335 U.S. 345,

349 (1948). But the rule favoring strict construction

of criminal statutes has an entirely different prove-

nance from the clear statement rule that applies to

waivers of sovereign immunity. In the criminal con-

text, the strict construction principle rests largely

on the need to give fair notice to individuals con-

sidering undertaking prohibited activity, a rationale

that is entirely different from the considerations un-

derlying sovereign immunity doctrine. See, e..,

United States v. Bass, 404 U.S. 336, 347-348 (1971).’

Accordingly, the above cases provide no support for

the State’s argument.’

* Bass also reaffirms the principle that “unless Congress

conveys its purpose clearly, it will not be deemed to have

significantly changed the federal-state balance.” 404 U.S. at

349. In this case, the State seeks, inter alia, to assess state

civil penalties, payable to the state treasury, against the fed-

eral government. As discussed in our opening brief (see Br.

17-18), payment of such civil penalties would plainly alter

“sensitive federal-state relationships,” Rewis v. United States,

401 U.S. 808, 812 (1971), and should thus trigger a particu-

larly rigorous application of the clear statemeni rule.

* Our opening brief explains (Br. 16-17) why the clear

statement rule should be applied with particular care in cases

involving penal measures against the federal government. We

do not base that argument, however, on the principle that

penal statutes generally must be strictly construed. Rather,

the argument is based on the long-settled understanding,

4

The other cases cited by the State fail to support

its argument. To be sure, there have been cases in

which this Court has found that sovereign immunity

had been waived because, in a particular instance, a

statute enacted by Congress was found to contain the

necessary “clear and unambiguous” waiver. £.9.,

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

(1988); United States v. Yellow Cab Co., 340 U.S.

543 (1951); Indian Towing Co. v. United States, 350

U.S. 61, 69 (1955). But the fact that, through appli-

cation of the clear statement rule, Congress has

been found in some cases to have waived sovereign

immunity serves merely to reinforce the vitality of

the clear statement rule. As we show in our opening

brief (Br. 15-18), that rule has been reaffirmed re-

cently and often by this Court.

Moreover, none of the cases cited by the State in-

volved waivers with operative language remotely sim-

ilar to the statutory language at issue in this case.

Nor did any of the cases involve the kind of penal

measures at issue here. Thus, as our opening brief

explains (Br. 16-17), Missowri Pac. R.R. v. Ault, 256

U.S. 554 (1921), remains the case of this Court most

closely analogous to the present one, and the rigorous

enforcement of the clear statement rule in Ault,

where a State sought to impose a civil penalty on a

federal instrumentality, should inform the analysis

here.

The State asserts (Resp. Br. 25) that Ault rested

not upon a rigorous application of the clear state-

ment principle, but instead upon the fact that the

President, through his agent and acting pursuant to

congressionally delegated authority, had issued an

exemplified by Ault, see infra, that penalty provisions trigger

particularly strong sovereign immunity concerns.

5

order precluding suit against the government for

“fines, penalties and forfeitures.” 256 U.S. at 562

n.1 (quoting order). Yet, the Court remarked that

the President’s agent, in orde ag that “fines, penal-

ties and forfeitures” were unavailable, “was careful

to confine the order to the limits set by the act” (256

U.S. at 564 (emphasis added) ), thus indicating that

the order in question did not expand the waiver be-

yond that provided for in the statute. Indeed, the

statute gave the President authority only to limit the

waiver, not expand it; it provided that “carriers

while under Federal control shall be subject to all

laws and liabilities as common carriers, * * * except

in so far as may be inconsistent * * * with any order

of the President.” 256 U.S. at 558. Far from resting

on any action taken by the President or his agent, the

Court’s decision was based on its determination that

“there is nothing either in the purpose or the letter

fof the above quoted statutory language] to indicate

that Congress intended to authorize suit against the

Government for a penalty.” /d. at 563 (emphasis

added).* Because “the element of punishment clearly

predominates and Congress’—not the President’s

agent—“has not given its consent that suits of this

‘Immediately following the quoted language, the Court

ac led:

The government undertook as carrier to observe all exist-

ing laws; it undertook to compensate any person injured

through a departure by its agents or servants from their

duty under such law; but it did not undertake to punish

itself for any departure by the imposition upon itself of

fines and penalties or to permit any other sovereignty to

punish it. Congress is not to be assumed to have adopted

the method of fines paid out of public funds to insure

obedience to the law on the part of the Government’s

railway employees.

256 U.S. at 563.

6

character be brought against the United States,” the

civil penalties sought could not be imposed on the fed-

eral instrumentality. 256 U.S. at 565.

3. Nor is the State correct in claiming that we

advocate “a new rule of statutory construction” (Resp.

Br. 20) that would “force Congress into a strait-

jacket of specificity when writing waivers of sover-

eign immunity” (Resp. Br. 24). We fully agree that

“immunity waivers must be sensibly construed ac-

cording to their literal language.” Resp. Br. 22. In

Ault, for example, the Court had no difficulty de-

termining that compensatory remedies—by whatever

name they are called—came within the congressional

waiver (see 256 U.S. at 564-565), and in Goodyear

Atomic, the Court found that a statute waiving sov-

ereign immunity as to workers’ compensation laws

applied to all workers compensation laws, regardless

of whether they followed the classical model in which

workers are automatically entitled to benefits regard-

less of the employer’s fault. 486 U.S. at 183-185.

The clear statement rule, however, cautions against

expanding a waiver of sovereign immunity beyond the

clear meaning of the language employed by Congress;

in doubtful cases, this Court has instructed that the

decision to expand the waiver must be made by Con-

gress, not a court. See, e.g., United States v. N.Y.

Rayon Importing Co. (#2), 329 U.S. 654, 660

(1947). The focus in each case must be on the lan-

guage employed by Congress in the statute, not on

policy considerations-that might be thought to justify

a particular waiver.

In our opening brief (Br. 39 n.34), we illustrate

this point by reference to the current congress

debate over whether to enact a statute clearly waiv-

ing sovereign immunity from civil penalties

>

7

RCRA. The State asserts that the reference to cur-

rent legislation in our brief is in tension with our

assertion that post-enactment legislative history car-

ries no weight in analyzing the meaning of earlier

legislation. Resp. Br. 48. .

We find no such tension. Of course, the current

legislative debate is of no relevance in determining

the meaning the enacting Congresses attached to the

statutes at issue in this case. See, e.g., Russello v.

United States, 464 U.S. 16, 26 (1983); Jefferson

County Pharmaceutical Ass'n vy. Abbott Laboratories,

460 U.S. 150, 165 n.27 (1983); CPSC v. GTE Syl-

vania, Inc., 447 U.S. 102, 117 (1980); United States

v. Clark, 445 U.S. 23, 33 n.9 (1980). Aside from

simply informing the Court about related pending

legislation, however, our reference to the recent de-

bate is intended to illustrate the way in which the

clear statement rule helps assure careful congressional

consideration of the wisdom of a particular waiver.

See Astoria Federal Sav. & Loan Ass’n vy. Solimino,

111 S. Ct. 2166, 2170 (1991). There is no evidence in

the legislative history of either RCRA provision at

issue in this case that the Congresses that enacted

and amended those provisions gave any thought to

the unique problems raised by assessing civil pen-

alties for environmental violations against the federal

government. As a result of the clear statement rule,

however, Congress is now focusing its attention on

legislation that would clearly and unambiguously

waive federal sovereign immunity from civil penalties

for hazardous waste violations, and its action on that

legislation will be informed by consideration of pre-

cisely those issues. See H.R. Rep. No. 111, 102d

Cong., ist Sess. 25-29 (1991) (dissenting view), 30-

32 (additional views).

8

4. a. The State advances three arguments in sup-

port of its position that the federal facilities provi-

sion of the CWA, Section 313(a), 33 U.S.C. 1323(a),

waives federal sovereign immunity from civil pen-

alties.

First, the State asserts that the provision employs

the term “sanction,” which has been defined as in-

cluding a “penalty.” Resp. Br. 27. We have no quar-

rel with the dictionary definitions of “sanction” quoted

by the State. However, as our opening brief explains

(Br. 19-21), the provision at issue inextricably

couples “sanction” with “process,” by waiving sov-

ereign immunity as to “all * * * requirements, ad-

ministrative authority, and process and sanctions.”

CWA § 313(a), 33 U.S.C. 1323(a) (emphasis added).

The provision thus waives sovereign immunity as to

“process and sanctions’—i.e., prospective, injunctive

relief and sanctions to enforce compliance with such

relief. The § ars no explanation for the use of

the term “ar +t off the unified expression “proc-

ess and sanctions” from the two other items on the

list and, indeed, under the State’s reading, the use

of that term would render the provision ungram-

matical. In short, although the term “sanctions” may

indeed be used to refer generally to penal measures,

the grammar of the provision at issue precludes that

meaning.

Second, the State asserts (Resp. Br. 28-29) that

Congress could haye intended the terms “process and

sanction” to refer to penal measures (presumably

both civil and criminal), in addition to injunctive re-

lief and sanctions to enforce such relief. Although the

State cites the current edition of Black’s Law Dic-

tionary in support of that assertion, that source in

fact supports our interpretation of the statute. Black’s

Law Dictionary generally defines “process” as “any

9

means used by a court to acquire or exercise its juris-

diction over a person or over specific property” or the

“(m]jeans whereby a court compels appearance of

defendant before it or a compliance with its de-

mands.” Black’s Law Dictionary 1205 (6th ed.

1990).° After referring to an older use of the term,

the passage states that “[t]he word ‘process,’ how-

ever, as now commonly understood, refers to a sum-

mons, or, summons and complaint, and, less com-

monly, to a writ.” Jbid. In accordance with that defi-

nition, the term “process and sanction” refers to the

means whereby court exercises its jurisdiction and

the penalty for those who disregard exercises of that

jurisdiction—i.e., in this context, injunctive relief

and sanctions necessary to enforce compliance with

such relief.

The State’s definition of “process” refers to a dif-

ferent part of the dictionary definition, which includes

“all the acts of a court from the beginning to the end

of its proceedings.” Resp. Br. 28. That phrase, how-

ever, is a part of the following passage, which pur-

ports to define the term “judicial process” :

Judicial process. In a wide sense, this term may

include all the acts of a court from the beginning

to the end of its proceedings in a given cause;

but more specifically it means the writ, sum-

mons, mandate, or other process which ‘s used

to inform the defendant of the institution of pro-

ceedings against him and to compel his appear-

ance, in either civil or criminal cases.

5 Similarly, the only case cited by the State (Resp. Br. 28),

Girardier V. Webster College, 563 F.2d 1267, 1272 (8th Cir.

1977), cites an older edition of Black’s Law Dictionary for the

proposition that “process” refers to “the means by which a

court compels the appearance of a defendant before it or by

which the court compels a compliance with its demands.”

10

Black’s Law Dictionary at 1205. To begin with, the

statute uses the term “process” and the phrase “proc-

ess and sanction,” not the term “judicial process” de-

fined in the above passage. Accordingly, the rele-

vance of the above definition is doubtful. It is all

the more doubtful that, in the context of a waiver of

sovereign immunity, it is appropriate—or even per-

missible—to rely on the “wide sense” of a term,

rather than its more specific use. CWA § 313(a),

33 U.S.C. 1323(a).

Even if the above definition were of relevance to

the issue in this case, it does not support the State’s

argument. We agree that, in the terms of CWA Sec-

tion 313(a), federal agencies are “subject to” and

must “comply with” the “acts of a court from the

beginning to the end-of its proceedings” in a CWA

case. If the United States does not comply with such

acts, it is amenable to “sanctions” that may be im-

posed by a court to enforce its process. The question

in this case, however, is whether it is lawful for a

court to impose civil penalties on the United States;

that question is not resolved merely by stating, as

the State does (Resp. Br. 28), that a court might

choose—in our view, improperly—to attempt to use

its process to assess a civil penalty for violation of

the environmental statutes at issue in this case.

Finally, the State asserts that our interpretation

of the statute “contradicts the meaning ascribed by

Congress to the same words in the Clean Air Act

waiver upon which 33 U.S.C. 1323 is based.” Resp.

Br. 28. To begin with, the State’s assumption that

legislative history can establish a waiver of federal

sovereign immunity where the terms of the rele-

vant statute do not is mistaken. A waiver of sov-

ereign immunity “cannot be implied but must be

unequivocally expressed.” Irwin v. Veterans Admin.,

11

111 S. Ct. 453, 457 (1990). Resort to legislative his-

tory is appropriate only when congressional intent is

not “unequivocally expressed” in the statute. See,

e.g., Toibb v. Radloff, 111 S. Ct. 2197, 2200 (1991) ;

Business Guides, Inc. v. Chromatic Communications

Enters., Inc., 111 S. Ct. 922, 928 (1991); United

States v. Rojas-Contreras, 474 U.S. 231, 235 (1985).

It logically follows that legislative history cannot suf-

fice to establish a waiver of sovereign immunity or to

broaden the scope of the waiver specified in the statu-

tory text. Cf. Hoffman v. Connecticut Dep’t of In-

come Maintenance, 492 U.S. 96, 104 (1989).

The legislative history of the CWA does not, in any

event, support the State’s argument. The only refer-

ence to civil penalties cited by the State is a single

sentence in a House committee report on an amend-

ment to the Clean Air Act’s federal facilities provi-

sion, passed a few months prior to the amendment to

the CWA federal facilities provision at issue in this

ease. H.R. Rep. No. 294, 95th Cong., Ist Sess. 200

(1977). Although Congress intended generally ‘“‘to

conform” the CWA provision “with a comparable pro-

vision in the Clean Air Act,” H.R. Conf. Rep. No.

830, 95th Cong., Ist Sess. 93 (1977), the language

of the Clean Air Act amendment was not adopted

intact, as we noted in our opening brief. See Br.

23. In any event, the fact that a committee stated

in general terms, without elaboration, that it in-

tended “‘to conform” the language of the CWA pro-

vision to that of the Clean Air Act amendment does

not lead to the conclusion that the committee, much

less Congress, intended to adopt the legislative his-

tory of the Clean Air Act provision in toto for use in

interpreting the corresponding CWA provision.

b. The CWA federal facilities provision contains a

proviso that “the United States shall be liable only

12

for those civil penalties arising under Federal law.”

CWA § 313(a), 33 U.S.C. 1323(a). As our opening

brief explains (Br. 24-30), that proviso uses language

(“arising under Federal law”) with a well-recognized

legal meaning, most familiar from the use of the term

“arising under the * * * laws * * * of the United

States” in the basic statute granting federal question

jurisdiction to the district courts, 28 U.S.C. 1331.

We also point out that, under any of the interpre-

tations that have been given to that language, the

state civil penalties at issue in this case cannot be said

to “arisfe] under Federal law” and, accordingly,

cannot be assessed against the United States. See

Br. 25-26 (citing cases). In particular, this Court’s

decision in Gully y. First National Bank, 299 U.S.

109 (1936), makes clear that the fact that a state

statute has received federal approval—even where,

as is not the case here, such approval would be neces-

sary to render the state law effective—does not con-

vert it into a statute that arises under federal law.

The State’s primary response to this argument is

to insist that the dictionary meaning of “arising,”

not the established legal meaning of the term “arising

under,” should govern this case because “[t]he Clean

Water Act waiver is the product of its own specific

purpose and history,” while “the interpretations of 28

U.S.C. 1331 are the result of that statute’s distinct

purpose and history.” Resp. Br. 34. The State’s ar-

gument is unpersuasive.

First, we do not understand how the dictionary defi-

nition of the term “arise” as to “originate” or “come

into being” (see Resp. Br. 29) supports the State’s

argument; to the contrary, that definition serves to

make our point. The State does not—and cannot—

dispute that liability for civil penalties under Ohio

Rev. Code § 6111.09 “originated” or “came into be-

13

ing’ when the Ohio state legislature enacted that

statute, not when the United States Congress enacted

or amended the CWA. Prior to the Ohio legislature’s

enactment, there was no such liability; when Section

6111.09 was enacted, entities began to be subject to

the civil penalties specified in that section. Accord-

ingly, even under the dictionary definition espoused

by the State, civil penalties assessed under Ohio Rev.

Code § 6111.09 “arise under” state, not federal, law.’

Second, whatever may be the dictionary defini-

tions of “arise,” the State does not dispute that the

phrase “arising under’’—the precise phrase used in

CWA Section 313(a)—had a well-recognized legal

meaning at the time Congress enacted that statute in

its present form. As our opening brief explains, under

that well-recognized meaning, the civil penalties the

State seeks to impose under Ohio Rev. Code § 6111.09

do not “aris[e] under Federal law.”

International Ass’n of Machinists vy. Central Air-

lines, 372 U.S. 682 (1963), the only case cited by

the State, is not to the contrary. Machinists involved

a provision of the Railway Labor Act requiring cre-

ation of “system boards” to address labor disputes in

the airline industry. See 45 U.S.C. 184 (1958). Pe-

titioner union and respondent airline had contracted

to establish such a board, see 372 U.S. at 683, but

* The State points out that Ohio law borrows federal stand-

ards for assessment of civil penalties (Resp. Br. 32) and that

EPA approved the Ohio permit program (Resp. Br. 33). Those

considerations suggest that the state legislature’s motivation

for enacting the state civil penalties provision may have been

to create a state permit program that would supplant the

federal program in accordance with CWA Section 402, 33

U.S.C. 1342. They do not show, or even suggest, that Ohio

Rev. Code § 6111.09 “arose”—or “originated” or “came into

being’”—under federal law.

14

the union brought an action in federal district court

alleging that the airline had not complied with an

award of the board. This Court held that the case

did not “present a serious question of the scope of

the arising-under provision of § 1331 or [28 U.S.C.

1337].” 372 U.S. at 696. Rather, the obligation

of the airline to comply with the system board’s award

plainly arose under the federal statute requiring that

such boards be created and making their awards “fi-

nal and binding.” See 372 U.S. at 688. Therefore

the case came well within the grant of jurisdiction in

Section 1331.

This case raises an entirely different issue from

Machinists. As the State itself notes (Resp. Br. 34),

this Court observed that the contract in Machinists

depended on the federal statute for its “power and

authority.” 372 U.S. at 692. By contrast, as we

explain in our opening brief (Br. 26), the state

civil penalties at issue here apply ex proprio vigore,

entirely independent of federal law. The Machinists

decision rested on the proposition that parties who

enter into a contract concerning performance of an

obligation under federal law do not thereby elimi-

nate the federal component of a subsequent dispute

concerning the performance of that obligation. This

case involves no contract, and the obligation at issue

is an obligation to pay civil penalties whose nature

and incidence are determined entirely by state law.

Because the State is attempting to enforce that obli-

gation entirely under the “power and authority” of

state law, Machinists does not support the State’s

argument that the obligation nonetheless arises under

federal law.

Finally, the State is mistaken in asserting (Resp.

Br. 34-35) that the law surrounding the interpreta-

tion of “arising under” in 28 U.S.C. 1331 may be

15

ignored because the CWA “arising under” proviso

and 28 U.S.C. 1331 have distinct purposes. It is well-

settled that, where a statute uses a term that has an

established legal meaning, it should be presumed that

Congress intended that meaning when it enacted the

statute. See, e.g., McDermott Int’l, Inc. v. Wilander,

111 S. Ct. 807, 811 (1991); Bradley v. United States,

410 U.S. 605, 609 (1973) ; United States v. Merriam,

263 U.S. 179, 187 (1923); Henry v. United States,

251 U.S. 393, 395 (1920); The Abbotsford, 98 U.S.

440, 444 (1878). Moreover, the purposes of Section

1331 and the CWA “arising under Federal law”

proviso are not indeed so very different. In both

statutes, Congress intended to draw a line to advance

a particular federal interest—in the case of Section

1331, ensuring that federal causes of action need not

be adjudicated in the courts of a subordinate sover-

eign and in the case of the CWA provision at issue

here, ensuring that the federal government is not sub-

ject to civil penalties payable to a subordinate sov-

ereign. In both cases, Congress chose to draw that

line on the basis of whether the legal issues had their

source in federal or state law.’

’ The State asserts that the purpose of CWA Section 313 (a)

was to “encourage compliance with comprehensive, federally

approved water pollution programs while shielding federal

agencies from unauthorized penalties.” Resp. Br. 34-35. We

agree with that general statement, but submit that the penal-

ties that Congress found “unauthorized” were penalties such

as those arising under state law, in this case Ohio Rev. Code

§ 6111.09. The State also asserts that Congress’s objective

“to enforce federal facility compliance with the [CWA}”

cannot be “accomplished without the penalty deterrent.” Resp.

Br. 35. Of course, the issue of how far Congress’s objectives

may be achieved with or without civil penalties is entrusted

to Congress, not the courts. And, in any event, what is at

issue with respect to the “arising under” proviso is not all

16

5. With respect to the two citizen suit provisions

at issue in this case—CWA §505(a), 33 U.S.C.

1365(a), and RCRA § 7002(a), 42 U.S.C. 6972(a)

—our opening brief points out (Br. 31-34, 40-44)

that those provisions authorize district courts to assess

only civil penalties that are “appropriate” under the

respective civil penalties provisions, which make quite

clear that it is never “appropriate” to assess a civil

penalty against the United States.

In response, the State asserts that the term “ap-

propriate” was intended to refer “to the well docu-

mented judicial discretion to adjust the size of

a civil penalty depending on the facts and equities.”

Resp. Br. 37. We do not disagree with that assertion,

as far as it goes. As we have explained (Br. 32-33,

41-42), the term “appropriate” makes clear that the

incidents of civil penalties and the determination of

when they are to be assessed must be made in accord-

ance with the respective civil penalties provisions.

Thus, while the term “appropriate” no doubt was

intended to refer to the discretion of a court to de-

termine the size of a civil penalty, there is no reason

to believe that it was not also intended to refer to the

statutory limits or the circumstances in which such

a penalty ought to be assessed, and—most important,

for present purposes—the entities against whom it

may be assessed. An attempt to assess a civil penalty

that is too big, unjustified by the defendant’s conduct,

or levied against an entity not subject to civil penal-

ties would not be “appropriate” under the civil penal-

ties provisions of the CWA and RCRA. And, because

the United States does not come within the class of

“nersons” against whom those provisions permit the

civil penalties assessed against the federal government, but

only those arising under state law.

17

assessment of civil penalties, it is never “appropri-

ate” to assess a civil penalty against the United

States.

With respect to the RCRA citizen suit provision,

the State places substantial reliance (Resp. Br. 40)

on a single sentence in a Senate committee report

accompanying the 1983 amendements to RCRA, in

which the committee asserted that “[e]ither a non-

complying agency [or] the Administrator, if he fails

to act, are subject to the citizen suit and penalty

provisions of Section 7002.” S. Rep. No. 284, 98th

Cong., Ist Sess. 45 (1983). Although the State cor-

rectly notes (Resp. Br. 40) that the passage was

included under the general heading “Federal Facili-

ties,” the fact remains that the cited language ap-

pears in the second half of a paragraph that, like

the balance of that portion of the report, discusses

newly enacted provisions requiring the inspection and

inventory of federal facilities that handle or generate

hazardous wastes. It is not included in the portion

of the report discussing the amendment to the civil

penalties provision, which contains the statutory lan-

guage at issue here. Moreover, the committee report

is best understood simply to inform Congress that

remedies, if any, for a failure to comply with the

inspection and inventory requirements, are to be found

in the citizen suit provision. Indeed, if the language

were read—as the State suggests—to indicate Con-

gress’s understanding that federal facilities and the

Administrator of EPA are subject to civil penalties,

it would be plainly mistaken; no provision of RCRA

can reasonably be read to authorize civil penalties

against the Administrator of EPA.

6. Although the specific statutory language must

govern the analysis in this case, we have suggested

_in our opening brief (Br. 12-13) that a general prin-

18

ciple emerges from the text of both of the statutes at

issue here: that Congress has waived the federal gov-

ernment’s immunity from prospective, injunctive re-

lief and sanctions to enforce that relief, but has not

waived federal sovereign immunity from retrospec-

tive, or penal, forms of relief.* In response, the State

argues with respect to the RCRA federal facilities

provision (Resp. Br. 43) that the distinction between

prospective and retrospective relief is in some way

inconsistent with the explicit statutory language man-

dating that the United States comply with report-

ing requirements. See CWA §$3213(a), 33 U.S.C.

1323(a); RCRA § 6001, 42 U.S.C. 6961.

We agree that the United States is subject to re-

porting requirements, but fail to see the inconsistency

suggested by the State. For we have not urged that

the statute distinguishes between prospective and

retrospective requirements, but rather between pro-

spective and retrospective forms of relief; reporting

requirements mandated by statute or regulatory

action are obviously in the former category. Thus,

when a court determines that a federal facility

has violated water pollution or hazardous waste reg-

ulatory measures (such as reporting requirements),

it may order the federal government to undertake

appropriate remedial actions to bring the federal fa-

cility into compliance and it may enforce that order

*The general distinction between prospective and retro-

spective relief is not unfamiliar in the context of sovereign

immunity doctrine. Compare Edelman v. Jordan, 415 U.S.

651, 664-671 (1974) (retrospective relief not permissible

against States under the Eleventh Amendment), with Quern

v. Jordan, 440 U.S. 332, 347-349 (1979) (prospective relief

permissible), and Hutto v. Finney, 437 U.S. 678, 691 (1978)

(same),

19

with sanctions if necessary (prospective relief). It

may not, however, simply assess a penalty (retro-

spective relief) for past failure to comply.

It is true, but immaterial, that permitted prospec-

tive relief may, in a given case, impose a greater

financial burden on the government than would the

prohibited retrospective relief. Nat’l Governors’

Ass’n, et al. Amici Br. 20. The fundamental dis-

tinction between the two forms of relief nonetheless

remains. It is the distinction between ordering that

the government comply with legally binding obliga-

tions—which may necessitate the expenditure of gov-

ernment funds—and ordering that the government

(additionally) disburse funds as a penalty for past

noncompliance. See, e.g., Papasan v. Allain, 478 U.S.

265, 278-282 (1986); Edelman, 415 U.S. at 667-668.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

OCTOBER 1991

W wv. &. Government paiwtine orrice. 1991 312324 45116