Opposition Brief — Bunker Group, Inc. v. United States

No. 97-1610 F Rapmme Cort, us. |

FILED

: In The

re - a | 29 1998

Supreme Court of the Hnithd Stites

5 QFECE OF ING GLEAK

y~ ,

October Term, 1997

IN THE MATTER OF BUNKER GROUP INC.

BUNKER GROUP PUERTO RICO, INC..

NEW ENGLAND MARINE SERVICES, INC..

Petitioners,

VS.

UNITED STATES OF AMERICA, et al.

COMMONWEALTH OF PUERTO RICO, er al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

COMMONWEALTH OF PUERTO RICO, et al.

ANTONIO J. RODRIGUEZ JOSE A. FUENTES AGOSTINI

Counsel of Record ATTORNEY GENERAL

ALANSON T. CHENAULT, IV COMMONWEALTH OF

RICE FOWLER PUERTO RICO

201 St. Charles Avenue P.O. Box 192

36th Floor San Juan, Puerto Rico 00902

New Orleans, Louisiana 70170 (787) 721-7700

(504) 523-2600

JOHN F. NEVARES

SMITH & NEVARES

P.O. Box 13667

Santurce Station

San Juan, Puerto Rico 00908-3667

(787) 722-9333

Attorneys for the Commonwealth of Puerto Rico, on its own behalf,

and as Public Trustee and as parens patriae for the Citizens of the

Commonwealth, the Board on Environmental Quality of the

Commonwealth of Puerto Rico, the Department of Natural Resources

of the Commonwealth of Puerto Rico and the

Puerto Rico Tourism Company

Gar ton ro ee eee wornenige Ce UTE nares em sats CORAL Aner a

i

PARTIES TO THE PROCEEDING

The petition also should have included the Commonwealth

of Puerto Rico as a party. The Commonwealth of Puerto Rico

appears on its own behalf, and as Public Trustee and as parens

patriae for the Citizens of the Commonwealth, the Board on

Environmental Quality of the Commonwealth of Puerto Rico,

the Department of Natural Resources of the Commonwealth of

Puerto Rico and the Puerto Rico Tourism Company.

il

TABLE OF CONTENTS

Page

PEE WH TG FINS on. kn sé Kev knees ceneaeeuens i

ee Ae GI bi 6a ov eke vide hewkincvenieennera ii

Une OE SI a v.a vs a boa 5 kno bee eae hain ill

> Reasons for Denying the Writ ..... 25.00 cccccccasce l

I. Certiorari should not be granted because neither

the court of appeals nor the district court has “so

far departed from the accepted and usual course

of judicial proceedings” as to warrant a grant of

NTS i sic hi ches a cae ees l

A. Bunker Group has failed to explain why a

writ of certiorari should be granted. ..... l

B. Bunker Group cannot show that the courts

below departed from the accepted and usual

course of judicial proceedings in this case of

Statutory interpretation. ............... 2

C. No other compelling reasons warrant a grant

OF CNG. ice inccd ess senate 4

II. Applying the accepted and usual course of judicial

proceedings, the courts below correctly concluded

that OPA implicitly repealed the limitation act as to s

claims for oil spill removal costs and damages. . 6

eects

ili

Contents

Page

III. The courts below correctly held that Rule F is

inapplicable to claims for oil spill removal

costs and damages. .........--++--eeeeeeee 9

ES LEIP IPP TOE TICE CEE EERE 10

TABLE OF CITATIONS

Cases Cited:

Braxton v. United States, 500 U.S. 344 (1991) ...... 4

Connor v. Coleman, 440 U.S. 612 (1979) .......... 3

Hanna v. Plumer, 380 U.S. 460 (1965) ............ 4

Hickman y. Taylor, 329 U.S. 495 (1947) .........5. 4

In re Hokkaido Fisheries Co., Ltd., 506 F. Supp. 631 (D.

Sos ii a hae a ee MOMS AS Re es 7,8

In re JAHRE SPRAY II, 1997 A.M.C. 845, 1996 WL

Co re er errr 4

In re MetLife Capital Corp., 132 F.3d 818 (lst Cir. 1997)

CEL TEAS, PEL ELT Oe Pe Tee ae Seer ee Pe eee 7, 8,9

In re Odin Marine Corp., No. 96-5438 (S.D.N.Y. Aug.

ae eS Aea AS Ree ED EL EK ORO oN 5

In re Oswego Barge Corp., 664 F.2d 327 (2d Cir. 1981)

iv

Contents

Page

Lake Tankers Corp. v. Henn, 354 U.S. 147, reh’g. denied,

Foe Sei AMID. eve ook oe eens ere iG 2

New York City Transit Auth. v. Beazer, 440 U.S. 568

BS oy; RS Ree ng Un Seer yr ol SPE eae Rn 4

Posadas v. National City Bank, 296 U.S. 497 (1936) . 7

Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976)

EP ag ee re PU ME Cy yee a eT 7

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

fag! Se ee marys Oe aAP Laan Sheen wr ooe eRe 3

Tug Capt. Fred Bouchard Corp. v. M/V BALSA 37, No.

93-1321-CN-T-23B (M.D. Fla. Oct. 22, 1996) ... 5

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464

CEGRE hive ea vce 4 ek ee os knees 4

Zahn v. International Paper Co., 414 U.S. 291 (1973) 4

Statutes Cited:

SS Net Aees REF SSE 6 kei ir beh os Re SHE eS 7

SP Tice OO AEE 5 Kika CRG eo ee CEOs 2, ©

De: Wiis OD kos CA SNR TG ee ee ‘Ae

Vv

Contents

Page

33 USC. S ZIAD oc oc oo ein ds ondseiens 7

Ae ES PER 6 ck PRG Ta Bob eee Rea S ee 9

SS UE SZ sho 55 et hee een’ beie anes 7

i BES Toe te ys! 2S rp eee roe Freee ee 7

pS 8 alt Te so) ye 2 SA e rer ream yee erg en 7

gtk fede Riis eee ree ree ee ee 4

Rules Cited:

Rule F of the Supplemental Rules for Certain Admiralty

and Maritime Claims of the Federal Rules of Civil

PRONE 5s SS 65 Bh nh eee eee aS > 3

Supreme Court Rule 10 ..... 2... cece ewer eee eeees 2

Supreme Court Rule 10(a) ............-.-- sees. 3

Supreme Court Rule 35(5) ...........- eee eee eeee 3

Supreme Court Rule 35(5)(b) ..........-2+-e eee 3

Contents

Page

Other Authorities Cited:

Felix Frankfurter and Henry M. Hart, Jr., The Business

of the Supreme Court at October Term, 1933, 48 Harv.

i EE oko he eke NCE aeeeh ARES eres 2, 3, 6

2 Thomas J. Schoenbaum, Admiralty and Maritime Law

oo Oe | Sn ee ren eS peo 8

23 James W. Moore, et al., Moore’s Fed. Practice (3d ed.

Pk a CASPER EEN SACK Es EO ae ER EEE ce 42

William Howard Taft, The Jurisdiction of the Supreme

Court under the Act of February 13, 1925, 35 Yale L.

BR Re.) RR ener Mime roy OD pina a ani we ey 6

H.R. Conf. Rep. No. 653, 101lst Cong., 2d Sess. 101

(1990), reprinted in 1990 U.S.C.C.A.N. (10: Stat.)

Sees Cha R eS ARTO OTE ee ed ee ee 8

l

REASONS FOR DENYING THE WRIT

I.

CERTIORARI SHOULD NOT BE GRANTED

BECAUSE NEITHER THE COURT OF APPEALS NOR

THE DISTRICT COURT HAS “SO FAR DEPARTED

FROM THE ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS” AS TO WARRANT A

GRANT OF CERTIORARI.

Petitioners Bunker Group Inc., Bunker Group Puerto Rico,

Inc., and New England Marine Services, Inc. (collectively

“Bunker Group”) urge this Court to grant a writ of certiorari

under Supreme Court Rule 10(a) (Rule 10(a)) because

a United States court of appeals has so far departed

from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this court's

supervisory power.

Pet. for Writ of Cert. at 3 (Pet. 3). Rule 10(a) does not provide

suitable grounds for granting certiorari in this case. The courts

have not misused the rules of procedure and practice, and there

is no reason for this Court to exercise its supervisory powers.

Historically, this Court has been reluctant to intervene in all but

the most egregious violations where a court clearly exceeds the

scope of its authority. See generally 23 James W. Moore, et al.,

Moore’s Fed. Practice, § 510.24 (3d ed. 1998). Bunker Group’s

petition fails to establish sufficient grounds for granting certiorari.

A. Bunker Group has failed to explain why a writ of

certiorari should be granted.

Bunker Group focuses solely on the merits of its argument

and never attempts to show any departure from the accepted

2 :

and usual course of judicial proceedings requiring this Court’s ;

supervision. Because Bunker Group has completely failed to i

show why this is one of the few cases which this Court should

consider, the Court should summarily deny certiorari without

considering the merits of Bunker Group’s argument. Simply

stated, Bunker Group does not allege any violation of major

concern to the integrity of the federal judicial process. Thus,

Supreme Court review is not warranted.

Years ago, Justice Frankfurter warned petitioners against

arguing their case on the merits and failing to explain why '

certiorari was proper. .

The major recurrent vice of petitions. . . is the failure

to perceive the elementary distinction between an

extended argument on the merits (obviously

inappropriate until the merits are before the Court)

and an argument on the issue whether certiorari

should or should not be granted. Only in exceptional

cases is any but cursory discussion of the merits

appropriate in the petition at all....

Felix Frankfurter and Henry M. Hart, Jr., The Business of the

Supreme Court at October Term, 1933, 48 Harv. L. Rev. 238,

265 (1934). Justice Frankfurter explained that the brief must be

“confined to argument upon the reasons relied on for allowance

of the writ.” Jd. at 266.

B. Bunker Group cannot show that the courts below

departed from the accepted and usual course of judicial

proceedings in this case of statutory interpretation.

Bunker Group seeks to invoke the least likely basis for

certiorari under the Rule 10 alternatives. The Court seldom

invokes its supervisory powers as a basis for granting a writ.

Justice Frankfurter’s initial guidance on application of former

iia ial

3

Rule 35(5)(b), the predecessor of current Rule 10(a),' explained

the limited basis for granting certiorari under these conditions:

The ratio of successful to attempted invocations for

this reason is smaller than that of any other. To scores

of petitions each year, any asserted error in the

decision of a case, however minute and of whatever

character, is such a departure “from the accepted and

usual course of judicial proceedings” as to call for

an exercise of the Supreme Court’s power of

supervision. Of course, the reason refers neither to

errors of law nor to minor departures from customary

practice. It refers to matters of major concern to the

integrity of the federal judicial process. How rarely

the Supreme Court regards as necessary any

intervention on this ground appears from the fact

that no single grant of certiorari last term was

attributable to it....

48 Harv. L. Rev. at 274. Certiorari should be denied because

Bunker Group has not shown the manner in which the courts

below have so far departed from the accepted and usual course

of judicial proceedings as to create an issue of major concern to

the integrity of the federal judicial process.

Historically, this Court has invoked its supervisory powers

reluctantly, reserving them for only the most egregious instances

of abuse or ignorance of clear directives. See, e.g., Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336, 344 (1976)

(certiorari granted after appellate court improperly remanded a

case after removal in order to reduce overburdened federal

docket); Connor v. Coleman, 440 U.S. 612, 622 (1979)

(Marshall, J., dissenting) (three-judge panel ignored Court

1. See 23 James W. Moore, et al., Moore’s Fed. Practice, § 510

App. 01 (3d ed. 1998) (text of Supreme Court Rule 35(5) of the 1925

Rules).

4

directive on implementing apportionment plan) Hickman v.

Taylor, 329 U.S. 495, 514 (1947) (certiorari granted to define

the scope of the attorney work product exception to discovery);

Zahn v. International Paper Co., 414 U.S. 291, 292 (1973)

(certiorari granted to address the application of jurisdictional

amounts in controversy under class action suits); Hanna v.

Plumer, 380 U.S. 460, 463 (1965) (certiorari granted to

determine whether federal service of process rules are replaced

by state law); New York City Transit Auth. v. Beazer, 440 U.S.

568, 570 (1979) (court incorrectly decided a constitutional issue

before a statutory issue); Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc.,

454 U.S. 464, 470 (1982) (certiorari granted to correct a broad

and novel view of standing).

Bunker Group has not met its burden of showing the

presence of any issues of a magnitude requiring the Court to

exercise its supervisory powers over a lower court. Accordingly,

certiorari should be denied.

C. No other compelling reasons warrant a grant of

certiorari.

The principal purpose for which this Court uses certiorari

jurisdiction is to resolve conflicts among circuit courts of appeals

and state courts concerning the meaning of provisions of federal

law. Braxton v. United States, 500 U.S. 344, 348 (1991). No

such reason exists in this case. Because the First Circuit is the

only court of appeals which has considered the arguments raised

by Bunker Group, there is no conflict among the federal circuits.

In addition to the Puerto Rico district court, every district court

which has considered the issue has reached the same result —

that the Limitation of Shipowners Liability Act, 46 U.S.C.

§§ 181-89 (Limitation Act) does not apply to claims for oil

spill removal costs and damages. See In re JAHRE SPRAY II,

1997 A.M.C. 845, 855, 1996 WL 451315, *4 (D.N.J. 1996);

5

In re Odin Marine Corp., No. 96-5438, slip op. at 6 (S.D.N-Y.

Aug. 7, 1997);? Tug Capt. Fred Bouchard Corp. v. M/V BALSA

37, No. 93-1321-CN-T-23B, slip op. at 2 (M.D. Fla. Oct. 22,

1996)°. Further, there are no important federal questions which

have been decided by a state court of last resort.

Bunker Group’s concerns about the lack of a concursus

procedure‘ for oil pollution claims does not present an important

question of federal law which has not been, but should be,

2. This case is on appeal to the Second Circuit.

3. This case is on appeal to the Eleventh Circuit, but as noted

in the Memorandum of Amicus Curiae filed by Bouchard

Transportation Co., Inc., it may be procedurally different from the

instant case. Memorandum of Amicus Curiae at 2.

4. The “concursus” is a procedural device established by the

Limitation Act and Rule F of the Supplemental Rules for Certain

Admiralty and Maritime Claims of the Federal Rules of Civil

Procedure (Rule F). It is somewhat like an interpleader procedure,

but is unique to vessel owners. Its only purpose is to marshal the

vessel owner's assets (the limitation fund) in a single court

proceeding for pro rata distribution among multiple claimants. Its

purpose is not to marshal the claimants. A concursus is not available

if the limitation fund is adequate to pay all claims in full. Lake

Tankers Corp. v. Henn, 354 U.S. 147, 151-52, reh’g. denied, 354 U.S.

945 (1957).

In contrast, Congress intended for full compensation of all

allowable claims under the Oil Pollution Act of 1990, 33 U.S.C.

§§ 2701-61 (OPA), from either those responsible for the spill or from

the National Pollution Funds Center (the Fund). No fund is deposited

with any court for distribution. OPA claims not paid by the

responsible party may be presented to the Fund for payment. Because

no court is required to marshal and distribute a fund, concursus is

inapplicable. Also, concursus is never available for responsible

parties who are not vessel owners. e.g. owners and operators of

facilities such as pipeline and terminals.

6

settled by this Court. Congress, not the judiciary branch, should

address Bunker Group’s concerns. In August 1996, Senator Breaux

of Louisiana proposed an amendment to the Oil Pollution Act of

1990, 33 U.S.C. §§ 2701-61 (OPA), creating a concursus procedure

for an OPA claim. See S. 2009, 104th Cong., Ist Sess. § 106

(1996) (proposed OPA amendment to create concursus). The

proposal was not enacted.

Bunker Group’s issues with OPA do not rise to the high level

of importance required for granting certiorari. The importance of a

question presented is measured by matters of “genuine, intrinsic

public significance,” or where the law requires uniformity. See

generally 42 Harv. L. Rev. at 271-272. See also William Howard

Taft, The Jurisdiction of the Supreme Court under the Act of

February 13, 1925, 35 Yale L. J. 1, 2 (1925) (“The function of the

Supreme Court is conceived to be, not the remedying of a particular

litigant’s wrong, but the consideration of cases whose decision

involves principles, the application of which are of wide public or

governmental interest, and which should be authoritatively declared

by the final court.”). Bunker Group simply fails to address either a

need for uniformity or a question of widespread public concern.

For these reasons, Bunker Group’s petition for certiorari should

be denied.

Il.

APPLYING THE ACCEPTED AND USUAL COURSE

OF JUDICIAL PROCEEDINGS, THE COURTS BELOW

CORRECTLY CONCLUDED THAT OPA IMPLICITLY

REPEALED THE LIMITATION ACT AS TO CLAIMS FOR

OIL SPILL REMOVAL COSTS AND DAMAGES.

In its de novo review of OPA, the court of appeals concluded

that OPA repealed the Limitation Act as to oil spill pollution claims in

7 =

the instant case. In re MetLife Capital Corp., 132 F.3d 818, 822

(ist Cir. 1997); Pet. App. Al-A13, A-9. It found five OPA

provisions which explicitly repealed the Limitation Act as to

oil spill claims, as well as other provisions which irreconcilably

conflicted with the Limitation Act. Jd. The court recognized

that where the provisions of two acts cannot be reconciled, the

later act, to the extent of the conflict, constitutes an implied

repeal of the earlier one. Jd. (quoting Radzanower v. Touche

Ross & Co., 426 U.S. 148, 154 (1976) (quoting Posadas v.

National City Bank, 296 U.S. 497, 503 (1936))).

The five OPA provisions recognized by the court of appeals

as conflicting with the Limitation Act are codified at 33 U.S.C.

§ 2702(a) (section’s “notwithstanding” clause suggests that OPA

repealed the Limitation Act with respect to oil spill removal

costs and damages), 33 U.S.C. § 2702(d)(1)(A) (repealing the

Limitation Act as to third parties solely responsible for a spill),

33 U.S.C. § 2718(a) (repealing the Limitation Act as to state

and local statutory remedies), 33 U.S.C. § 2718(c)(1) (repealing

the Limitation Act as to additional liability imposed by the

United States, any state, or political subdivision), and 33 U.S.C.

§ 2718(c)(2) (repealing the Limitation Act as to fines and

penalties). In re MetLife, 132 F.3d at 821; Pet. App. A-8.

When it evaluated OPA’s § 2702(a) requirement that the

responsible party is liable for oil spill removal costs and damages

“notwithstanding any other provision or rule of law,” the court

of appeals followed the reasoning used by other courts

interpreting similar language in the Federal Water Pollution

Control Act, 33 U.S.C. §§ 1251-1387 (FWPCA). Those courts

held that the FWPCA’s “notwithstanding” phrase precluded

application of the Limitation Act to claims for FWPCA pollution

removal costs. See In re MetLife, 132 F.3d at 821; Pet. App. A-

8, (citing In re Oswego Barge Corp., 664 F.2d 327, 340 (2d

Cir. 1981); In re Hokkaido Fisheries Co., Ltd., 506 F. Supp.

8

631, 634 (D. Alaska 1981))°. The court found those cases

persuasive because neither OPA’s language nor its legislative

history suggests that OPA should be construed contrary to the

settled law applicable to the FWPCA when OPA was enacted.

Id.

While the court of appeals recognized that repeal of statutes

by implication is disfavored, it found that several key provisions

of the two statutes are plainly inconsistent. /d. at 822; Pet. App.

A-9. Further, the court found OPA’s legislative history consistent

with its interpretation. /d. The court cited a provision expressly

demonstrating Congress’s intent for OPA to supersede the

Limitation Act for oil spill removal costs and damages:

Liability under this Act is_ established

notwithstanding any other provision or rule of law.

This means that the liability provisions of this Act

would govern compensation for removal costs and

damages notwithstanding any limitations under

existing statutes such as the act of March 3,

Sar

In re MetLife, 132 F.3d at 822; Pet. App. A-10, (citing H.R.

Conf. Rep. No. 653, 101st Cong., 2d Sess. 101 (1990),

reprinted in 1990 U.S.C.C.A.N. (101 Stat.) 779, 781 (Joint

Explanatory Statement of the Conference Committee explaining

§ 2702(a))).

While concluding that OPA repealed the Limitation Act as

to claims for oil spill removal costs and damages arising under

5. The court of appeals also cited 2 Thomas J. Schoenbaum,

Admiralty and Maritime Law, 376 (2d ed. 1994) (“OPA broadly

supersedes the Limitation of Liability Act with respect to damages

and removal costs under both federal and state law, including

common law”). /d.

9

OPA, the court of appeals correctly recognized that some of the

claims arising from an incident in which oil pollution occurs

may remain within the scope of the Limitation Act. Jn re MetLife,

132 F.3d at 822; Pet. App. A-10. For example, maritime tort

actions for injury or damages to persons or vessels remain subject

to the Limitation Act. Jd. The district court correctly reserved

the limitation plaintiffs’ right to seek limitation of liability for

those claims subject to reduction under the Limitation Act. Jn

re MetLife, 132 F.3d at 822-23; Pet. App. A-10 through A-11.

Certiorari should not be granted because the court’s analysis

of these issues simply has not departed from the accepted and

usual course of judicial proceedings.

Il.

THE COURTS BELOW CORRECTLY HELD THAT

RULE F IS INAPPLICABLE TO CLAIMS FOR OIL

SPILL REMOVAL COSTS AND DAMAGES.

The court of appeals also considered de novo Bunker

Group’s argument that even if OPA supersedes the Limitation

Act, the concursus provisions of Rule F apply to actions under

OPA independently from the Limitation Act. in re MetLife, 132

F.3d at 823-24; Pet. App. A-11 through A-13. The court

concluded that Rule F’s venue and limitation of liability

requirements cannot be reconciled with OPA. Jn re MetLife,

132 F.3d at 823; Pet. App. A-11 through A-12. Similarly, the

court concluded that Rule F’s deadline for filing claims is also

inconsistent with OPA’s statute of limitations. Jn re MetLife,

132 F.3d at 823; Pet. App. A-12. The court noted that contrary

to Bunker Group’s contentions, OPA establishes a claims

procedure. Jn re MetLife 132 F.3d at 824; Pet. App. A-13.

(outlining OPA’s claim procedure in 33 U.S.C. § 2713 and

contrasting it with Rule F). After comparing OPA’s requirements

10

with those of Rule F, the court concluded that the inconsistencies

between the two procedures rendered Rule F inapplicable to

OPA claims, even if Rule F applies in situations separate from

the Limitation Act. Jd.

Bunker Group has not shown, and cannot show, the manner

in which the court’s thorough analysis of the applicability of

Rule F to OPA claims has departed from the accepted and usual

course of judicial proceedings.

CONCLUSION

The petitioners have not shown that either the court of

appeals or the district court has “so far departed from the

accepted and usual course of judicial proceedings” as to warrant

exercise of this Court’s supervisory powers. Because they cannot

do so, they have presented only their argument on the merits.

The courts’ interpretation of OPA does not create a conflict

among Circuit courts of appeals or state courts concerning the

meaning of provisions of federal law, or any other basis for

granting certiorari. If the petitioners seek to have OPA changed,

they should petition Congress for relief. Certiorari should not

be granted.

1]

Respectfully submitted,

JOSE A. FUENTES AGOSTINI

ATTORNEY GENERAL

COMMONWEALTH OF

PUERTO RICO

P.O. Box 192

San Juan, Puerto Rico 00902

(787) 721-7700

ANTONIO J. RODRIGUEZ

Counsel of Record

ALANSON T. CHENAULT, IV

RICE FOWLER

201 St. Charles Avenue

36th Floor

New Orleans, Louisiana 70170

(504) 523-2600

JOHN F. NEVARES

SMITH & NEVARES

P.O. Box 13667

Santurce Station

San Juan, Puerto Rico 00908-3667

(787) 722-9333

Attorneys for the Commonwealth of

Puerto Rico, on its own behalf, and as

Public Trustee and as parens patriae for

the Citizens of the Commonwealth, the

Board on Environmental Quality of the

Commonwealth of Puerto Rico, the

Department of Natural Resources of the

Commonwealth of Puerto Rico and the

Puerto Rico Tourism Company