Supplemental Brief — Vista Paint Corp. v. United States

upreme Court, us]

FILED

No. 92-2026 ‘ SEP 22 1893

BFFICE OF THE CLERK

In the Supreme Court of the Giuited States

OCTOBER TERM, 1993

VISTA PAINT CORPORATION, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF

FOR THE FEDERAL RESPONDENTS

DREW S. DAYS, II]

Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

JACQUES B. GELIN

J. CAROL WILLIAMS

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

ST en ee Sein sea

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TABLE OF AUTHORITIES

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Action for Rational Transit v. West Side Highway

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Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir.

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Indiana & Michigan Electric Co. v. EPA, 509 F.2d 839

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Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th Cir.

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Lubrizol Corp. v. EPA, 562 F.2d 807 (D.C. Cir. 1977) .....

New Mexico Environmental Improvement Div. v.

Thomas, 789 F.2d 825 (10th Cir. 1986) «0.0.0.0...

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Union Electric Co. v. EPA, 593 F.2d 299 (8th Cir.), cert.

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United States v. Aguilar-Correa:

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§ 110(a)(1), 42 U.S.C. 7410(a)(1) (Supp. III 1991) ...... 6

§ 110(a)(2), 42 U.S.C. 7410(a)(2) (Supp. III 1991) ...... 6

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In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-2026

VISTA PAINT CORPORATION, PETITIONER

v.

UNITED STATES OF AMERICA. ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES'COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF

FOR THE FEDERAL RESPONDENTS

1. Petitioner claims (Pet. Reply 2) that, contrary

to the government’s assertion, see Memo. in Opp. 2-3,

the petition for a writ of certiorari in this case is not

out of time because the petition for rehearing to the

Ninth Circuit was timely filed. Petitioner argues

that, under the Federal Rules of Appellate Procedure

and the Rules of the Ninth Circuit as interpreted by

that court, a petition for rehearing is deemed filed as

of the time it is deposited in first class mail. Peti-

tioner notes that the petition for rehearing was

mailed to the Ninth Circuit on October 8, 1992, which

was within the 14-day period allowed for the filing of a

petition for rehearing from the final judgment in this

case.

(1)

2

The sources upon which petitioner relies do not

support the contention that a petition for rehearing is

filed when mailed. Petitioner points to Subsection (b)

of Fed. R. App. P. 40, entitled “Petition for Rehear-

ing,” which states that copies of a petition for

rehearing “shall be served and filed as prescribed by

tule 31(b) for the service and filing of briefs.” Rule

31(b), entitled “Number of Copies to be Filed and

Served,” deals exclusively with the number of copies

of briefs to be filed with the court and served on

counsel, and is silent with respect to the time for

filing a brief. That subject is addressed separately in

tule 31(a), to which Rule 40 does not refer. More-

over, neither Rule 40 nor Rule 31 speaks to the

method by which various types of papers are deemed

filed with the court. That question is separately

addressed in Fed. R. App. P. 25(a), which states that

“filing shall not be timely unless the papers are

received by the clerk within the time fixed for filing,

except that briefs and appendices shall be deemed filed

on the day of mailing [using] the most expeditious

form of delivery.”

The category of “briefs,” which are deemed filed

upon mailing under Rule 25(a), does not include peti-

tions for rehearing. The appellate rules treat peti-

tions and briefs as distinct by establishing separate

rules that incorporate different procedures for each

type of filing. Compare Rules 28, 31, 32 with Rule 40.

The fact that Rule 40(b), in prescribing the number of

copies of petitions for rehearing to be filed, refers to

the parallel rule (Rule 31(b)) for briefs, does not

demonstrate that a petition for rehearing is a brief, or

that the categories overlap under the rules. Rather,

the use of separate sections (Rule 31(b) and Rule

3

40(b)) for briefs and petitions to address the same

issue—the number of copies of the document to be

filed—leads to the opposite conclusion.

Petitioner also suggests (Pet. Reply 2) that the

rules of the Ninth Circuit establish that a petition for

rehearing is filed on the day it is mailed first class.

The circuit court rules to which petitioner refers do

not support that proposition. Circuit Rule 31-2,

which cites both Fed. R. App. P. 25(a) and 31(a), estab-

lishes requirements for serving and filing briefs.

However, nothing in the text of the Rule indicates

that the category of “briefs” to which it repeatedly

refers includes petitions for rehearing.'! Like the

' Petitioner claims (Pet. Reply 2) that, under the Ninth

Circuit’s decision in United States v. Aguilar-Correa, 953 F.2d

558, 559 (1992), “[a] petition for rehearing is a ‘brief’ within

the meaning of [Circuit] Rule 31-2.” Therefore, petitioner

argues, a first class mailing operates as a filing of a petition

under the terms of Circuit Rule 31-2.1(c), which provides that

“{iJn all cases, first class mail shall be deemed to be the most

expeditious form of delivery by mail. (Seé FRAP 25(a)).”

Petitioner’s argument is based on a misreading of Aguilar-

Correa. In that case, the Ninth Circuit deemed untimely a

government motion for an extension of time to file a petition

for rehearing on the authority of Circuit Rule 31-2.3(b), which

states that a motion for an extension of time “shall be filed at

least 7 days before the expiration of the time prescribed for

filing the brief.” See 953 F.2d at 559. Thus, Aguilar-Correa

stands for the limited proposition that, for the purpose of

determining when an application for an extension of time to

file a petition for rehearing must be filed, the Ninth Circuit

will apply the rule for briefs under Circuit Rule 31-2.3(b). The

court’s decision to use that rule can be explained by the fact

that the question of when a motion for an extension of time to

file a petition for rehearing is due is not independently

addressed in the federal or Ninth Circuit rules. In contrast,

the point at which a petition for rehearing is considered filed—

4

federal rules, the Ninth Circuit rules deal with briefs

and petitions for rehearing in separate sections,

compare Circuit Rules 31-1 and 31-2 with Circuit

Rules 35 and 40. None of these rules expressly

modifies the application to petitions for rehearing of

the statement in Fed. R. App. P. 25(a) that, save for

briefs and appendices, papers are deemed filed with a

court of appeals upon arrival. See Circuit Advisory

Committee Note to Rules 35-1 to 35-3 (under the

heading “Time for Filing,” stating only that a peti-

tion for rehearing must be filed “within 14 days after

the filing of the original disposition” without

addressing when a petition is deemed filed). Since the

upon arrival at the court—is fixed by Fed. R. App. P. 25(a),

and neither Aguilar-Correa nor the text of Circuit Rule 31-2

alters that rule. In any event, the order in Aguilar-Correa was

withdrawn by the Ninth Circuit less than five months after it

was issued, see 965 F.2d 772 (1992), and thus no longer has

precedential force.

Even if, as petitioner argues, a petition for rehearing could

be considered a “brief” for all purposes under Circuit Rule 31-

2, the text of Subsection 2.1(c) of that rule would not establish,

as petitioner suggests, that a petition for rehearing is filed

when mailed. Referring to Fed. R. App. P. 25(a), Subsection

2.1(c) states that “in all cases, first class mail shall be the most

expeditious form of delivery by mail.” That statement does no

more than define the type of mailing that shall be considered

the “most expeditious form of delivery” within the meaning of

Fed. R. App. P. 25(a). It does not alter or expand the cate-

gories of papers that may be deemed filed by that method,

which, under Rule 25(a), include only “briefs and appendices.”

As we have explained, however, the term “briefs” as used in

the federal appellate rules does not include petitions for rehear-

ing. Thus, Ninth Circuit Rule 31-2.1(c) does not alter the fed-

eral appellate rule that petitions for rehearing are filed when

delivered to the court.

5

Ninth Circuit rules do not effectively “enlarge” the

time allocated for filing a petition for rehearing, see

Fed. R. App. P. 40(a), nor modify the filing procedures,

the federal appellate rules must control. Under those

rules, petitioner’s petition for rehearing was filed

when received, not when mailed. Fed. R. App. P. 25(a).

Since the petition was docketed as filed on October 13,

1992, beyond the 14 days allowed under Fed. R. App. P.

40(a), it was out of time, and so was the petition for a

writ of certiorari. See Memo. in Opp. 1-2.

2. Although we believe that, under the federal and

circuit court rules, the petition for rehearing in this

case was not timely filed, the question nevertheless

remains whether this petition was presented to the

court of appeals as timely by the Clerk of the Ninth

Circuit so as to raise the possibility that the court

denied the petition on the merits (and not for untime-

liness). See Memo. in Opp. 2; Pet. Reply 4 n.4.

Because the letter lodged by petitioner with this

Court creates some uncertainty on this point (see

letter of August 12, 1993, from the Senior Deputy

Clerk of the Ninth Circuit, Jereldine Curtis, to

Christopher Foster, counsel for petitioner), we will

address the issues raised in the petition in the

remainder of this brief.

a. The Clean Air Act (CAA), 42 U.S.C. 7401 et seq.,’

requires the Administrator of the Environmental

Protection Agency (EPA) to publish National

Ambient Air Quality Standards (NAAQS) for air

pollutants. 42 U.S.C. 7409(a). On February 8, 1979,

the EPA approved a NAAQS for ozone, 44 Fed. Reg.

2 All references to the Clean Air Act will be to the Act as it

currently stands unless otherwise indicated.

ee

6

tion between substances such as volatile organic

compounds (VOCs) and sunlight. One of the principal

sources of VOC emissions is paint solvent evapora-

tion. See generally id. at 8202-8204. As part of its

scheme to establish “a comprehensive national

program that malkes] the States and the Federal

Government partners in the struggle against air

pollution,” General Motors Corp. v. United States,

496 U.S. 5380, 582 (1990), the CAA provides for each

State to submit to the EPA a plan to implement and

maintain the National Ambient Air Quality Stan-

dards. 42 U.S.C. 7410(a)1). The EPA is required to

approve the state implementation plan (SIP) if it

comports with the Act. 42 U.S.C. 7410(a)(2) and

(k)1)(B). See generally Train v. Natural Resources

Defense Council, Inc., 421 U.S. 60, 63-67 (1975). The

Act also authorizes a State to propose SIP revisions

and requires the Administrator to approve them if

certain requirements are met. 42 U.S.C. 7410(a)(1),

(a)(2), and (k)(1)(B). See General Motors Corp. v.

United States, 496 U.S. at 533.5 Once a SIP or SIP

revision is approved by the EPA, it is enforceable by

the EPA as federal law. 42 U.S.C. 7413(a)(1).

b. Section 807(b)(1) of the Act provides for judicial

review of, among other actions, the Administrator’s

promulgation of any NAAQS or approval of a SIP or

SIP revision. 42 U.S.C. 7607(b)1). The Act provides

that petitions to review such actions must be filed in

the court of appeals within 60 days after the date on

which notice of the promulgation or approval appears

* Under the Act, States retain authority to adopt air pollu-

tion control standards or limitations that are more stringent

than those established by federal law. 42 U.S.C. 7416.

7

in the Federal Register. 42 U.S.C. 7607(b)(1). The

Act specifically provides that:

Actions of the Administrator with respect. to

which review could have been obtained under

paragraph (1) [by way of petition for review] shall

not be subject to judicial review in civil or

criminal proceedings for enforcement.

42 U.S.C. 7607(b)(2).

c. Under California law, local and regional au-

thorities have primary responsibility for establishing

state law controls on air pollution. In 1984, two of

these local authorities, the South Coast Air Quality

Management District (South Coast District) and the

San Diego County Air Pollution Control District

(San Diego District), adopted rules regulating the

VOC content of non-flat architectural coatings

offered for sale or sold in containers larger than one

liter. These rules were submitted to the EPA, which

approved them as a part of the California SIP on

January 24, 1985. 50 Fed. Reg. 3338 (1985).

Subsequently, the South Coast District and the

San Diego District adopted more lenient rules gov-

erning the VOC content of non-flat architectural

coatings and submitted them to the EPA for approval.

See 54 Fed. Reg. 5236 (1989). However, since these

rules were more lenient than the VOC content rules

approved in 1985, they were unenforceable by the

State unless approved by the EPA. 42 U.S.C. 7416.

The EPA rejected the more lenient South Coast

District VOC limitation on February 2, 1989. See 54

Fed. Reg. 5236 (1989). The San Diego revision

expired by its own terms on September 1, 1986. See

Gov’t C.A. Br. App. 2.

8

d. The CAA authorizes the EPA to impose civil

penalties on private companies for violations of the

Act’s air quality standards and also authorizes penal-

ties for failure to comply with requests for informa-

tion concerning possible violations. See Sections 110,

113, and 114 of the CAA, 42 U.S.C. 7410, 7413, and

7414.4 In 1987, the EPA decided to take enforcement

action against companies not in compliance with the

VOC limitations in the South Coast and San Diego

Districts. To determine the company’s compliance

status, the EPA issued requests for information in

March 1987 and May 1987 to petitioner Vista Paint

Corporation, Pet. App. 28a-24a, a long-time manufac-

turer of VOC-containing coatings. Petitioner re-

sponded to the first, March 19 request only after the

KPA issued an administrative order requiring it to do

so. In that letter, the company admitted that it was

selling paint that did not comply with the VOC

limitations. After the EPA determined that peti-

tioner’s response to the information requests was

inadequate, the EPA issued a Notice of Violation to

the company under Section 118(a)(1) of the Act, 42

U.S.C. 74128(a)(1). Pet. App. 24a. The EPA then sent

an additional request for information on June 19, 1987.

In a letter sent a month later, the EPA informed

petitioner that certain information in its June

request did not have to be submitted if petitioner: (1)

4 In November 1990, one month before the EPA filed a civil

action in this case, the Act was amended to add a new Section

113(e), 42 U.S.C. 7413(e), which expands the number of factors

the court must consider in assessing civil penalties for noncom-

pliance with the Act. Cf. Pet. App. 33a-34a (old Section 113(b),

42 U.S.C. 7413(b)(1988)) with Pet. 3 (text of new Section

113(e)).

9

ceased manufacture of non-complying paint by July 1,

1987; (2) agreed to cease all sales of non-complying

coatings by September 1, 1987; and (3) disclosed the

time and location of sales of non-complying paint in

August 1987. Jd. at 25a. Petitioner did not provide

the requested reports to the EPA, but continued to

sell and offer for sale non-complying paint until at

least October of 1987. Jd. at 25a-28a.

e. On December 3, 1990, the United States brought

this enforcement action under Sections 110, 113, and

114 of the CAA, 42 U.S.C. 7410, 7413, and 7414, for

civil penalties of $25,000 for each day that petitioner

failed to comply with the EPA’s information requests

and sold or offered paint for sale in violation of the

VOC limits. C.A. E.R. (ER) 5. Petitioner then filed a

third-party complaint against the EPA, the South

Coast District, the San Diego District, the Air

Resources Board, and the Technical Review Board

(ER 36-56) and a counterclaim against the United

States (ER 31-34), claiming that the VOC SIP

limitations were invalid under state law. Both the

third-party complaint and the counterclaim were

dismissed for lack of subject matter jurisdiction and

for failure to state a claim. ER 58-61.

f. Following full briefing and a hearing, the

district court granted the government’s motion for

summary judgment. Pet. App. 20a-37a. The district

court considered the factors bearing on the amount of

the penalty under the previous version of Section 113,

including “the size of the business, the economic

impact of the penalty on the business, and the

seriousness of the violation.” 42 U.S.C. 7413(b) (1988);

Pet. App. 33a-35a. The court then imposed a civil

penalty of $1,000 per day for each of the 468 days that

10

petitioner sold paint in violation of the VOC

standards prior to petitioner’s receipt of the notice of

violation on June 24, 1987, and a $12,500 per day

penalty for each of the 110 days that petitioner was in

violation of the Act’s sale and reporting require-

ments, from June 24, 1987, to October 12, 1987, for a

total penalty of $1,843,000. Pet. App. 35a. The district

court also assessed a civil penalty of $1,000 per day for

each of the 1177 days that petitioner was in violation

of the EPA’s subsequent, June information request,

for a total of $1,177,000. Jd. at 36a.

g. Relying on Fed. R. Civ. P. 52(b), 59(a), and 60(b),

petitioner then filed a pleading styled “Motion for

Findings of Fact and for Relief From and Amendment

of the Judgment” in which it requested, inter alia,

that the district court reexamine the penalties in

light of the factors contained in the new Section

1i3(e) of the Act, which had been added to the Act

effective November 1990. On February 11, 1992, the

district court issued amended findings of facts and

conclusions of law in which it affirmed its grant of

summary judgment in favor of the government. Pet.

App. 40a-58a. The court refused to reduce the amount

of the penalties based on consideration of the Section

113(e) factors. Specifically with respect to the factor

of “the economic benefit of noncompliance,” the court

found, based on facts in the record, that petitioner

“obtained a significant economic benefit from its

illegal * * * sales of non-compliant coatings.” Pet.

App. 56a. The court also held that petitioner had

“failed to submit admissible evidence to controvert

the United States’ showing of [petitioner’s] signifi-

cant economic benefit.” Jbid.

1]

h. The court of appeals affirmed in part and

reversed in part. Pet. App. la-12a. In relevant part,

the court affirmed the dismissal for lack of jurisdic-

tion of the third-party complaint and counterclaim

challenging the validity of the VOC limitations. Pet.

App. 3a. The court of appeals noted that petitioner

had “ample opportunity” to submit comments to the

State on the local rules and to challenge the EPA’s

approval of the SIP provisions under Section 307(b) of

the CAA. Pet. App. 3a. The court of appeals also

affirmed the district court’s finding of petitioner’s

liability for selling and offering for sale non-

compliant paint and the failure to provide requested

information. /d. at 3a-5a. However, as to the penalty,

the court of appeals found that disputed factual issues

precluded summary judgment as to some of the

factors that a court is required to consider under new

Section 113(e)(1), including the economic impact of

the penalty, the company’s good faith efforts to

comply, the seriousness of the violation, and the

reasonableness of EPA’s inaction on the proposed SIP

revisions that were ultimately rejected or expired.

Pet. App. 5a-10a. With respect to the remaining

Section 113(e) factors, the court of appeals upheld the

district court’s determination that no reduction of the

penalty was warranted based on the facts as found in

the record. Pet. App. 6a-11a.

3. The court of appeals correctly upheld the dis-

trict court’s dismissal for lack of jurisdiction of

petitioner’s claims that the VOC regulations were

invalid because inconsistent with state law. The

courts of appeals uniformly hold that a party may not

assert the invalidity of CAA regulations in an

enforcement proceeding based on grounds that could

12

be considered by the Administrator in deciding

whether to approve the regulations or by the court of

appeals in reviewing the Administrator’s action under

Section 307(b)(1). See, e.g., United States v. Ethyl

Corp., 761 F.2d 1153, 1155-1158 (5th Cir. 1985), cert.

denied, 474 U.S. 1070 (1986); Action for Rational

Transit v. West Side Highway Project, 699 F.2d 614,

616 (2d Cir. 1983) (per curiam); Lubrizol Corp. v.

EPA, 562 F.2d 807, 813-815 (D.C. Cir. 1977). Under

this rule, petitioner’s third-party claims and defenses

based on state law were properly dismissed, because

the issue that petitioner sought to raise—whether

the VOC regulations comply with state law—is one

that the Administrator is authorized to consider in

deciding whether to approve the VOC regulations.

The Administrator’s authority in this area is

established by the CAA provision requiring that

States submitting implementation plans to the EPA

provide necessary assurances that they will have

adequate authority under state law to carry out the

plan. 42 U.S.C. 7410(a)(2)(E). Had petitioner sought

review of the Administrator’s approval of the VOC

SIP provisions under Section 307(b)(1), the court

could have considered petitioner’s claim that the VOC

SIP provisions were contrary to state law. That

claim is therefore barred in this enforcement action.

There is no merit to petitioner’s contention (Pet.

18-19) that the court of appeals’ jurisdictional ruling

conflicts with decisions of- other courts of appeals,

because the decisions on which petitioner relies all

accept the general proposition that Section 307(b)(2)

bars review of issues that a court of appeals could

consider in reviewing the Administrator’s decision to

approve a SIP. Thus, in Lloyd A. Fry Roofing Co. v.

13

EPA, 554 F.2d 885, 892 (8th Cir. 1977), the court held

that the plaintiff could not attack the constitutional

validity of an approved SIP in an enforcement action

because he could have raised that objection in a

Section 307(b)(1) proceeding to review the Adminis-

trator’s approval of the plan. The court explained that

the court of appeals could consider the constitutional

validity of the decision in the course of its determina-

tion whether the Administrator’s decision was “in

accordance with the law” under the Administrative

Procedure Act, 5 U.S.C. 706. In Buckeye Power, Inc.

v. EPA, 481 F.2d 162, 173 (6th Cir. 1973), and Indiana

& Michigan Electric Co. v. EPA, 509 F.2d 839, 845

(7th Cir. 1975), the courts ruled that a party could

raise claims of economic or technological infeasibility

in an enforcement action because those factors are

not properly considered by the Administrator in

evaluating a SIP, or by a court of appeals as a basis

for setting aside an approved plan on review under

Section 307(b)(1). See Union Electric Co. v. EPA, 515

F.2d 206 (8th Cir. 1975), aff’d, 427 U.S. 246, 265-267

(1976); see also Union Electric Co. v. EPA, 593 F.2d

299, 300 (8th Cir.), cert. denied, 444 U.S. 839 (1979).° In

° In Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 355-356 (3d

Cir. 1972), cert. denied, 409 U.S. 1125 (1973), the court refused

to allow the defendant oil company to raise “the questions of

economic hardship or lack of compelling necessity” as a defense

in an enforcement action, holding that it could have raised

those issues “in a section 307 hearing.” 467 F.2d. at 357. To

the extent there is any inconsistency between Getty Oil and the

decisions in Buckeye Power and Indiana & Michigan Electric,

it is over the issue of whether economic hardship can be raised

in a Section 307 action. There is no disagreement over the

basic principle that a party is barred from raising in an

enforcement action any questions that a court of appeals could

14

contrast with Buckeye Power and Indiana &

Michigan Electric, the claim in this case is not one of

technological or economic infeasibility, but rather of

the invalidity of the VOC regulations under state law

—an issue that the Administrator can consider and

the court of appeals can review in a Section 307 pro-

ceeding. Thus, the court of appeals correctly affirmed

the district court’s dismissal of petitioner’s claims

and defenses of invalidity.®

4. Petitioner maintains (Pet. 17, 23) that it was

denied “any real opportunity to litigate the new

Section 113(e) issues” because the courts below

“refused to consider” evidence offered by petitioner

concerning the Section 113(e) factors. Although the

court of appeals agreed with the district court’s

statement that some of the evidence offered by

petitioner in the post-judgment proceedings was

inadmissible, see, e.g., Pet. App. 8a-9a,’ the district

court did not grant the government any opportunity

to present evidence or arguments in the post-

judgment proceedings that was not also available to

consider in reviewing the Administrator’s decision in a Section

307 proceeding.

6 The court of appeals’ decision is not in conflict with New

Mexico Environmental Improvement Div. v. Thomas, 789 F.2d

825, 833 (10th Cir. 1986), or Sierra Club v. Indiana-Kentucky

Electric Corp., 716 F.2d 1145, 1151 (7th Cir. 1983). See Pet. 19.

These cases hold that a successful challenge to a SIP in state

court renders the plan unenforceable in state and federal court.

Here, by contrast, these VOC SIP provisions have never been

challenged in state court and, consequently, have never been

declared invalid.

7 Petitioner does not challenge the evidentiary rulings

directly, nor does it offer any explanation as to why those

rulings might be incorrect. See Pet. 12-18.

Ve OCT.

15

petitioner. Thus, petitioner’s complaint is, at bottom,

an objection to the district court’s findings of fact and

to its analysis of the Section 113(e) factors in light of

the evidence properly in the record. See Pet. App.

54a-57a. These fact-bound evidentiary claims do not

warrant this Court’s review. In any event, to the

extent that petitioner objects to the district court’s

analysis in its ruling on the post-judgment motion, its

arguments are not properly before this Court because

petitioner failed to present the arguments to the

court of appeals, and the court of appeals declined to

consider them. See Pet. App. lla (Petitioner “never

expressly argued in its opening brief that the district

court erred in denying its post-judgment motion.

Even in its reply brief, [petitioner’s] arguments were,

at best, unclear.”)

There is also no merit to petitioner’s contention

(Pet. 20-23) that the court of appeals’ decision con-

flicts with Saunders v. Shaw, 244 U.S. 317 (1917), and

Armstrong v. Manzo, 380 U.S. 545 (1965). In Saun-

ders v. Shaw, 244 U.S. at 319, this Court held that an

intervening bondholder was deprived of his right to

due process of law when he was precluded by various

court rulings from ever offering evidence at trial. In

this case, in contrast, the district court held a hear-

ing on the government’s motion for summary judg-

ment and a hearing on petitioner’s post-judgment

motion, and petitioner had ample opportunity to pre-

sent evidence at both of these proceedings. In Arm-

strong v. Manzo, 380 U.S. at 552, the Court reversed

the lower court judgment on the ground that a father

failed to receive notice of a child support hearing and

that a second hearing with notice failed to cure the

original defect. The Court held that “an opportunity

16

{to be heard] must be granted at a meaningful time

and in a meaningful manner.” Petitioner in this case.

had two meaningful opportunities to be heard before

the district court. No further review of these claims

is warranted.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAys, III

Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

JACQUES B. GELIN

J. CAROL WILLIAMS

Attorneys

SEPTEMBER 1993

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