Opposition Brief — Davis Enterprises v. United States Environmental Protection Agency

OCTOBER TERM, 1989

DAVIS ENTERPRISES, ET AL., PETITIONERS

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

> KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

ANNE S. ALMY

MARTIN W. MATZEN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the courts below correctly held that the decision

by the Environmental Protection Agency (EPA) to deny

petitioners’ request to take an Agency employee’s deposi-

tion in connection with private tort litigation in state court

reasonably applied the criteria set forth in EPA’s govern-

ing regulations and therefore was not arbitrary, capricious,

or an abuse of discretion.

(I)

TABLE OF CONTENTS

Page

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ae ee ee ek be bn ene eh aaedascne l

Ch. CALe ich cakes é bbs ne kk i6044has ees l

Et eee er er ee ere ee 6

cic eee nied enh bee han 4686046400008 64 13

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144

ie eee heen ech eee eh hbase ehee es 0 10

Appeal of Sun Pipe Line Co., 831 F.2d 22 (lst Cir.

1987), cert. denied, 108 S. Ct. 2821 (1988)... 3, 4

Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.

I ae es a a ane yee 11, 12

Bowman Transp., Inc. v. Arkansas-Best Freight

System, Inc., 419 U.S. 281 (1974) ........... Ny

Cates v. LTV Aerospace Corp., 480 F.2d 620 (Sth

ONE ee eee ree 11

Environmental Enterprises, Inc. v. United States

EPA, 664 F. Supp. 585 (D.D.C. 1987) ....... 12

Giza v. Secretary of HEW, 628 F.2d 748 (ist Cir.

RARE WRaehdn Ch4N 486000000 4, 11

Glosser Brothers, Inc., In re, 382 Pa. Super. 177,

EE onc ce ackiieceteees<s 9

Hotel Employees-Hotel Ass’n Pension Fund v.

Timperio, 622 F. Supp. 606 (S.D. Fla. 1985)... ll

Kozak v. Struth, 515 Pa. 544, 531 A.2d 420

I eee ie eee a chad akenessese« 9

Motor Vehicle Mfrs. Ass’n of the United States, Inc.

v. State Farm Mutual Automobile Ins. Co., 463

Ee i na awa e hes 6460800648 7-8

Nationwide Investors v. Miller, 793 F.2d 1044 (9th

ee ea ee hee yake 6 hee eka ha 11

IV

Cases — Continued: Page

Reynolds Metals Co. v. Crowther, 572 F. Supp. 288

GD, Dilan. FETED occ ccccccccccccssccccccces ll

Saunders v. Great Western Sugar Co., 396 F.2d 794

( fe Ss. ee errrrrrerrr retire re ll

Smith v. C.R.C. Builders Co., 626 F. Supp. 12 (D.

CR, GE ooé kwhen cu cenacccocenscssatees 11

Swett v. Schenk, 792 F.2d 1447 (9th Cir.

PE. Gh dndancne dds dune sac dabenccensess 11

United States v. McLeod, 385 F.2d 734 (Sth Cir.

PE nncc concn unannegesdecetesesenenssses ll

United States ex rel. Touhy v. Ragen, 340 U.S. 462

GEREN h.nnbc0cncsnvecncesesensssenseusucss 3, 4, 10

United States Steel Corp. v. Mattingly, 663 F.2d 68

(10th Cir. 1980), cert. denied, 450 U.S. 980

GRRN nwo heed cdkveceeancecctcccccsecseess 11

Statutes, regulations and rules:

Administrative Procedure Act, 5 U.S.C. 701 ef

DP nadctccsenwcccsesceccccccccondesusess 3

3 0 Ppp rT rT TT ee

40 C.F.R.:

= Sf err Terre. TT ee

ES, Do cccscccccccccssnt 3,7

E65 0566de0seneanen 3, 4, 7,

Fed. R. Evid.:

DG): ac ecueeeceséeuun been keuws S

EE ou a I eee ee kas keenes 9

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-739 _

Davis ENTERPRISES, ET AL., PETITIONERS

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A23)

is reported at 877 F.2d 1181. The opinion of the district

court (Pet. App. A25-A34) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June

27, 1989, and the petition for rehearing was denied on

August 8, 1989 (Pet. App. A24). The petition for a writ of

certiorari was filed on November 6, 1989. The jurisdiction

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

STATEMENT

1. This case arises from petitioners’ efforts to compel

the testimony of employees of the Environmental Pro-

(1)

2

tection Agency (EPA) in private tort litigation in state court

to which the federal government is not party. In the state-

court litigation, petitioners have been held liable for

damages resulting from an accidental gasoline leak that

caused gasoline vapors to enter the homes of the plaintiffs;

the amount of the damages remains to be tried.

Following the accident, certain EPA employees had per-

formed air-quality monitoring tests in some of the affected

homes at the request of state health authorities. The

documented results of this testing were made available to

all concerned. Petitioners, who allege that the test results

are favorable to their position that the plaintiffs suffered

little or no injury, wish to use those results in the damages

phase of the state-court litigation.' In pre-trial discovery

during the damages phase of the litigation, petitioners served

requests for admissions on the plaintiffs, which include pro-

posed admissions of the authenticity and truth of the results

of the tests conducted by EPA. The plaintiffs have refused

to admit the truth of the test results without an opportuni-

ty to cross-examine the EPA employees who did the work.

Petitioners also assert that the test results might not be ad-

missible in evidence under Pennsylvania law in light of the

objections of the homeowner-plaintiffs. Pet. App. A3-A4;

Pet. 3-5.?

' The state-court litigation consists of a class action and several other

suits brought by plaintiffs who opted out of the class action. The state

trial court permitted the class action to proceed on the question of liabili-

ty, but held that each class member must prove damages on an in-

dividualized basis. After the liability verdict in the class action, the state

trial court designated the claims of two individual homeowners (one

a class member and one not) to be tried first. See Pet. 4.

2 Petitioners represented during the oral argument in the court of

appeals that they had requested an in /imine ruling from the state trial

court concerning the admissibility of the EPA test results in the absence

of an opportunity to cross-examine the EPA employees, but the state

court declined to make such a ruling. Pet. App. A4-AS.

3

2. This is the second case in which petitioners have

sought to bring before this Court their unsuccessful efforts

in the lower courts to compel the testimony of EPA

employees. The first case was Appeal of Sun Pipe Line Co..,

831 F.2d 22 (Ist Cir. 1987), cert. denied, 108 S. Ct. 2821

(1988), in which petitioner Sun Pipe Line applied for an

order from a federal district court to compel testimony in

the state-court litigation of one of the EPA employees who

had performed the same air-quality tests and was then work-

ing in EPA’s Region I. Pet. App. AS-A6 & n.1, A28 n.1.

EPA, acting through the Regional Counsel for Region I,

denied that request for the employee's testimony on the basis

of EPA regulations governing requests or subpoenas for

EPA employees to provide testimony concerning informa-

tion acquired in the course of their official duties. 40 C.F.R.

Pt. 2, Subpt. C (reproduced at Pet. App. A36-A42). Com-

pare United States ex rel. Touhy v. Ragen, 340 U.S. 462

(1951). The purpose of the EPA regulations is “to ensure

that [EPA] employees’ official time is used only for official

purposes, to maintain the impartiality of EPA among

private litigants, to ensure that public funds are not used

for private purposes and to establish procedures for approv-

ing testimony or production of documents when clearly in

the interests of EPA.” 40 C.F.R. 2.401(c). Any such request

for an employee's testimony must be approved by the

General Counsel (or his designee), and approval will be

granted only when allowing the testimony would “clearly

be in the interests” of EPA. 40 C.F.R. 2.403.

In the prior case, the First Circuit affirmed the district

court’s refusal to compel the employee's testimony, reject-

ing on essentially procedural grounds petitioner Sun Pipe

Line’s attempt to convert its action seeking “relief in the

nature of mandamus” (831 F.2d at 24) into one for review

under the Administrative Procedure Act, 5 U.S.C. 701 ef

seq., of EPA's decision declining to permit the employee

4

to testify. The First Circuit did not decide whether such

agency decisions are subject to judicial review, 831 F.2d

at 24-25, but it did conclude, id. at 23 n.3, that its own

decision in Giza v. Secretary of HEW, 628 F.2d 748 (1980),

“was clearly controlling” on the issue of the district court's

lack of authority to compel a federal employee to respond

to a state-court subpoena in his official capacity where his

federal employer had given him a contrary instruction.’

For this proposition, the court of appeals cited (831 F.2d

at 23 n.3) this Court’s decision in Towhy, 340 U.S. at

467-470, which held that a subordinate federal official

could not be held in contempt for his refusal to comply

with a subpoena duces tecum where his superior had

precluded compliance under valid federal regulations con-

trolling the release of official documents.

3. a. In this case, petitioners submitted a request to

EPA under governing regulations for EPA to authorize

a second employee to sit for a videotaped deposition con-

cerning his involvement in the air-quality testing done

after the gasoline leak at issue in the state-court tort litiga-

tion. Pet. App. A43-A46. Acting pursuant to 40 C.F.R.

2.403, EPA’s Regional Counsel denied petitioners’ request

(Pet. App. A47-A48, A54-A56), based on his determina-

tion that the giving of such testimony “would add nothing

to our public mission and could be seen as taking sides

in the litigation,” and that while the time consumed by

this particular deposition “may be small, the precedent

it sets and the future cumulative effect of similar requests

could have a significant impact on the Agency’s re-

sources.” Jd. at A47.*

’ In neither the prior Sun Pipe Line case (831 F.2d at 23) nor the

instant case (Pet. App. A31 n.2) did the state court actually issue

a subpoena for the testimony petitioners sought.

* EPA did, however, offer to provide the employee's testimony

by affidavit. Pet. App. A48.

areata teneennninnemmnemnin

5

b. Petitioners then filed this action in the United States

District Court for the Eastern District of Pennsylvania seek-

ing judicial review of EPA’s denial of their request for the

employee's testimony. The district court granted summary

judgment in favor of EPA. Pet. App. A25-A33. It first held

that EPA's decision was not subject to judicial review

because the “housekeeping” statute under which EPA’s

regulations were promulgated, 5 U.S.C. 301, provided the

court with “no law to apply.” Pet. App. A32. In the alter-

native, the district court held that if review was available,

EPA's decision must be sustained because it was based upon

a reasonable appraisal of the “parameters” its regulation re-

quired to be considered. Jd. at A33.

c. The court of appeals affirmed. Pet. App. Al-A23.

It disagreed with the district court’s holding that EPA's deci-

sion is unreviewable, finding instead that the “factors

enumerated” in EPA’s regulations supply the courts with

“sufficient law to apply” in reviewing the decision. /d. at

A6-All, Al7. However, the court of appeals agreed with

the district court that EPA’s decision should be sustained

on the merits. /d. at Al1-A16. It noted that EPA had not

“withheld relevant information as to the test results” from

the parties to the state-court litigation, id. at Al3, and that

petitioners did not challenge the EPA regulations under

which petitioners’ request for the employee's testimony was

denied. Jd. at A17. With the issues thus confined, the court

held that EPA had reasonably applied the criteria set forth

in its regulations, id. at Al2-A1l6, and that EPA had

therefore not abused its discretion or otherwise erred, but

had instead acted “within the parameters of [its] discretion”

as set forth in the regulations. Jd. at A17.

Judge Weis dissented. Pet. App. Al7-A23. He agreed

with the majority that EPA’s decision was subject to judicial

review, id. at A17, but believed that the decision should be

6

set aside as arbitrary and capricious. Jd. at A22-A23. Judge

Weis acknowledged that the regulations under which EPA

made its decision must be deemed valid for purposes of this

case. Id. at Al9. But he nonetheless was of the view that

EPA should have assessed the “interests of justice” as a

“critical factor” in deciding whether to permit the deposi-

tion, id. at A21, even though EPA’s regulations do not iden-

tify that as a relevant factor.

ARGUMENT

The court of appeals correctly held that EPA’s decision

denying petitioners’ request for the EPA employee’s

testimony in private litigation in state court was consistent

with governing regulations and was not arbitrary or

capricious. That decision does not conflict with any deci-

sion of this Court or of another court of appeals, and it

presents no issue warranting review by this Court.

1. Petitioners first suggest in passing (Pet. i, 8) that this

case presents the threshold issue of whether EPA’s decision

is subject to judicial review. The court of appeals, however,

unanimously ruled in favor of petitioners on that issue, ac-

cepting their argument that EPA’s own regulations supply

sufficient “law to apply” in conducting such review. Pet.

App. A6-Al11. Regardless of whether the court below cor-

rectly decided this issue of first impression against the

government, it is not properly presented on petitioners’ re-

quest for review.°

2. The issue upon which petitioners actually lost

below — whether EPA’s decision denying petitioners’ request

under EPA regulations governing the furnishing of

employees’ testimony was arbitrary and capricious (Pet. i) —

5 The reviewability issue would, of course, remain available to

respondents as an alternative ground for affirmance of the judgment

below if the Court granted the petition.

7

does not warrant review. As both the majority and dissent-

ing Opinions in the court of appeals pointed out (Pet. App.

A6, Al7, Al9), petitioners did not argue in either court

below that the governing EPA regulations are invalid. Ac-

cordingly, both courts below scrutinized EPA’s decision

against the backdrop of the discretionary standards set forth

in the regulations themselves — regulations that petitioners

themselves had urged as the “law to apply” (id. at A9, All).

And both courts below found that EPA had considered the

factors made relevant by its regulations and reached a

reasonable conclusion (id. at Al2-A16, A33). This conclu-

sion was correct.

The pertinent regulations provide that the Agency will

grant a request for an employee’s testimony only where it

would be “clearly in the interests of EPA” (40 C.F.R.

2.401(c), 2.403), and the regulations list certain purposes

that are served by that standard: “to ensure that employees’

official time is used only for official purposes, to maintain

the impartiality of EPA among private litigants, [and] to

ensure that public funds are not used for private purposes”

(40 C.F.R. 2.401(c)). The EPA Regional Counsel relied on

these factors in denying petitioners’ request, noting that

although EPA had done the sampling and analysis that was

requested of it by state health officials, permitting the EPA

employee to testify in the private tort suits “would add

nothing to [EPA’s] public mission and could be seen as tak-

ing sides in the litigation,” and “the future cumulative ef-

fect of similar requests could have a significant impact on

the Agency’s resources.” For these reasons, the Regional

Counsel concluded that it would not be in the interests of

EPA to furnish the employee as a witness. Pet. App. A47.

Thus, EPA’s decision “was based on a consideration of the

relevant factors,” and petitioners have not shown that “there

has been a clear error of judgment” in applying those fac-

tors. See Motor Vehicle Mfrs. Ass’n of the United States,

Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S.

29, 43 (1983) (quoting Bowman Transp., Inc. v. Arkansas-

Best Freight System, Inc., 419 U.S. 281, 285 (1974)).°

The decision of the court of appeals sustaining EPA’s

refusal under applicable regulations to make its employee

available in the circumstances of this case does not conflict

with any ruling by another court of appeals. Nor is the fact-

specific ruling below one of general importance that war-

rants review by this Court in the. absence of a circuit con-

flict. Indeed, it is not even clear that the decision below will

prove to be of practical importance to petitioners,

6 Judge Weis’s view in his dissent that EPA’s decision was not valid

under applicable regulations would effectively revise the criteria set forth

in those regulations and give primary weight to the “interests of justice”

(Pet. App. A21), rather than the “interests of EPA” (40 C.F.R. 2.401(c),

2.403). It apparently is Judge Weis’s view that EPA must furnish its

employees as witnesses for private parties who show a need for their

testimony, even in state court, unless there are “unassailable grounds”

for declining to do so. Pet. App. A21. We may assume for present pur-

poses that EPA might have adopted such a policy, and treated the

satisfaction of private parties’ need for witnesses from EPA as a prin-

cipal or presumptively dispositive factor. But EPA chose instead to give

priority to the statutory missions assigned to it by Congress, and to

permit the use of its resources to provide witnesses in private litigation

only when that course would also “clearly be in the interests” of the

EPA’s assigned functions. 40 C.F.R. 2.403. That policy for the alloca-

tion of scarce agency resources plainly is not arbitrary or capricious.

In this case, for example, it could not seriously be contended that

EPA would have been required to conduct the air-quality testing over

its own Objection if petitioners asserted a “need” for the expert opin-

ion of EPA’s employees in their private litigation regarding the injuries

sustained by homeowners. On that theory, EPA would become like a

private firm of technical experts. The result is no different here simply

because EPA acceded to the request by state health officials to con-

duct the tests. EPA might be deterred from offering voluntary assistance

in the first place if the courts were to hold that EPA would thereby

be bound to make its employees available in private litigation to

elaborate upon the agency’s work product.

9

because the siate trial court has not yet ruled on whether

the test results will be admitted into evidence in the state-

court litigation despite the unavailability of the EPA

employee’s testimony.’

3. The third and last of the issues raised by petitioners

(Pet. i, 10-13)— whether EPA was obliged to consider and

give presumptively controlling weight to petitioners’ asserted

need for the employee’s testimony, rather than to the fac-

tors set forth in its regulations —is not properly presented

for review. Petitioners’ current argument, drawn for the

most part from Judge Weis’s dissenting opinion below, is

7 The court of appeals acknowledged (Pet. App. A4-A5) petitioners’

claim that the results of EPA’s air-quality monitoring might be inad-

missible in state court without the supporting testimony of the EPA

employee, and that this might hamper petitioners’ defense. However,

the court also noted that the test results “may in fact be admissible”

a (id. at A15 n.4).

Petitioners do not argue in this Court that the test results are inad-

missible as a matter of law in state court by virtue of the judgment

below, and they do not foreclose themselves from urging the state court

to admit the results into evidence. See Pet. 5 n.2. Moreover, the case

upon which petitioners rely for the proposition that Pennsylvania courts

do not follow the Federal Rules of Evidence “on expert testimony”

(ibid.) states only that Pennsylvania does not follow the approach of

Fed. R. Evid. 705 by “allowing an expert to testify to his opinion without

elucidating underlying factual assumptions.” Kozak v. Struth, 515 Pa.

554, 560, 531 A.2d 420, 423 (1987). Other state cases show that Penn-

sylvania courts do tend to follow Fed. R. Evid. 703, by permitting ex-

pert testimony based upon facts not in evidence when the facts are de-

rived from a source reasonably relied upon by experts in his field. See,

e.g., In re Glosser Brothers, Inc., 382 Pa. Super. 177, 198-199, 555 A.2d

129, 139-140 (1989). In light of this and other arguments that petitioners

might present to the state court, we doubt that petitioners would con-

cede the correctness of Judge Weis’s view that the test results “cannot

be submitted to the jury in the state court” without EPA’s cooperation

(Pet. App. A21). Moreover, as we have noted (see note 4, supra), EPA

did offer to provide an affidavit by the employee whose testimony was

sought.

10

nothing less than a direct attack upon the very regulations

that petitioners not only declined to challenge below, but

affirmatively conceded were valid. See Pet. App. A6, A17,

A1!9.® Thus, although petitioners argued below that “EPA

did not follow its own regulatory criteria” (id. at Al2), they

now argue that EPA’s decision must be set aside because

“the interests of justice were not taken into account” (Pet.

11)—i.e., because EPA’s Regional Counsel did not consider

a factor that is not mentioned in EPA’s regulations and is

quite distinct from the standard upon which those regula-

tions required him to base his decision: whether the

testimony would be “clearly in the interests of EPA.” 40

C.F.R. 2.401(c), 2.403. Accordingly, the issue to which peti-

tioners now ascribe such importance necessarily entails a

challenge to the legal validity of EPA’s regulations. Because

petitioners did not challenge the regulations below, and

because the court of appeals therefore did not decide that

question (Pet. App. A17), there is no occasion for this Court

to consider it. Adickes v. S.H. Kress & Co., 398 U.S. 144,

147 n.2 (1970).9

Nor is there any conflict among the circuits concerning

the validity of EPA’s regulations that would warrant review

* See Pet. C.A. Reply Br. 13 (“[I]t is Appellants’ contention that

Regulation 2.403 is valid, but that EPA failed to consider the relevant

factors contained in said Regulation and abused its discretion in reaching

its decision.”).

* Petitioncrs’ assertion (Pet. 8) that this case “squarely presents those

vexing and very important questions” left open by this Court’s deci-

sion in Touhy is extravagant. EPA has not withheld the test results,

under claim of privilege or otherwise. Pet. App. Al3. EPA has simply

denied petitioners’ request to take its employee’s deposition. Nor has

EPA “shut off an appropriate judicial demand” for information or

testimony. Touhy, 340 U.S. at 472 (Frankfurter, J., concurring). Unlike

in Touhy, no subpoena or other “judicial demand” was issued in this

case. Pet. App. A31.

11

by this Court even if that question were properly presented.

In fact, the ruling below appears to be the first appellate

decision in a case brought under the APA seeking judicial

review of an EPA decision denying a request for an

employee’s testimony for use in state-court proceedings. '°

However, in the related context of a state-court subpoena

directed to an EPA employee, the Fourth Circuit recently

followed Touhy in reversing a district court order enforc-

ing such a subpoena. Boron Oil Co. v. Downie, 873 F.2d

67, 69-70 (1989). Significantly, the court in Downie found

that EPA has “a valid and compelling interest” in keeping

its employees “free to conduct their official business without

the distractions of testifying in private civil actions in which

the government has no genuine interest.” Jd. at 71. Noting

the “current explosion in environmental litigation,” the

Fourth Circuit echoed the concerns expressed by EPA’s

10 As petitioners note (Pet. 9 & n.4), other federal agencies also have

regulations governing the manner and extent to which their employees

and documents may be made available in private litigation. However,

as petitioners also note (Pet. 10 n.6), those regulations differ depend-

ing upon the agency, its underlying statutory authority, and its par-

ticular missions and needs. There likewise is little case law involving

APA review of agency decisions under those regulations.

The federal courts have uniformly followed this Court’s holding in

Touhy when confronted with cases involving subpoenas directed to

subordinate federal employees who have been directed not to testify

pursuant to their employing agency’s regulations. See, e.g., Nationwide

Investors v. Miller, 793 F.2d 1044, 1048 (9th Cir. 1986); Swett v. Schenk,

792 F.2d 1447, 1451-1452 (9th Cir. 1986); United States Steel Corp.

v. Mattingly, 663 F.2d 68 (10th Cir. 1980), cert. denied, 450 U.S. 980

(1981); Giza v. Secretary of HEW, 628 F.2d at 751; Cates v. LTV

Aerospace Corp., 480 F.2d 620 (Sth Cir. 1973); Saunders v. Great

Western Sugar Co., 396 F.2d 794 (10th Cir. 1968); United States v.

McLeod, 385 F.2d 734 (Sth Cir. 1967); Smith v. C.R.C. Builders Co.,

626 F. Supp 12, 14-15 (D. Colo. 1983); Reynolds Metals Co. v.

Crowther, 572 F. Supp. 288, 290-291 (D. Mass. 1982); Hotel Employees-

Hotel Ass’n Pension Fund v. Timperio, 622 F. Supp. 606, 607 (S.D.

Fla. 1985).

12

Regional Counsel in this case (see Pet. App. A47), stating

that “a strict adherence to [EPA’s] internal regulations is

essential if it is to be successful in preventing its expert

employees from being targeted as potential witnesses in

private actions.” 873 F.2d at 72.!!

In short, the EPA regulations that petitioners now seek

to have this Court review (and effectively revise) are of

substantial importance to EPA’s performance of its

statutorily assigned public missions. If the Court were ever

to conclude that the validity of those regulations warrants

review, that task should be undertaken only in a case in

which the issue has actually been litigated and decided

below. This is not such a case.

'! The Fourth Circuit further recognized EPA’s special need for these

regulations (873 F.2d at 70):

Because of the nature of the duties it exercises and programs it

administers, the EPA is particularly vulnerable to the demands of

private parties seeking information acquired as a result of official

investigations * * *. If EPA’s On-Scene Coordinators were routine-

ly permitted or compelled to testify in private civil actions, signifi-

cant loss of manpower hours would predictably result and agency

employees would be drawn from other important agency

assignments.

Accord, Environmental Enterprises, Inc. v. United States EPA, 664

F. Supp. 585, 586 (D.D.C. 1987) (if the state courts could “so easily

subpoena federal officials” in cases to which the government is not a

party, “the officials might find themselves spending all of their time

doing nothing but complying * * * and thus they would have little op-

portunity to pursue their important governmental responsibilities”).

a A nr = te ee

ER ne eS

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

ANNE S. ALMY

MARTIN W. MATZEN

Altorneys

JANUARY 1990

ww US. GOVERNMENT PRINTING OFFICE: 1989—262-203/00713