Petition for Writ of Certiorari — Curtis v. United States

J ed ~ Pay 7 1993

OFFICE UF [HE CLERK

.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JOHN H. CURTIS,

PETITIONER

V.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Louis Dugas, Jr.

1804 N. 16th St.

Orange, Texas 77630

(409) 883-3506

Attorney for Petitioner

QUESTIONS PRESENTED

I.

Whether individual federal employees acting

within the course and scope of their employment are

subject to criminal prosecution for violation of the Clean

Water Act?

i.

Whether the definition of "person" in the Clean

Water Act includes employees of the Federal

government?

it

LIST OF ALL PARTIES

John H. Curtis

Louis Dugas, Jr.

1804 North 16th Street

Orange, Texas 77630

(409) 883-3506

Attorney for John H. Curtis

United States of America

Roger B. Clegg

Deputy Assistant Attorney General

Environment & Natural Resources Division

Rick Filkins

J. Carol Williams

Jeffrey P. Kehne

Environment & Natural Resources Division

U.W. Department of Justice

Washington, D. C. 20530

(202) 514-2767

Attorneys for United States of America

Table of Au

iil

TABLE OF CONTENTS

eee

Petition For Writ Of Certiorari.....

Opinion below. ............cc0cc0e00s

Jurisdiction

Statement..

Senet eee eee eee ee eee ee

Reasons for review..................

Conclusion.

Appendix A

Page

iv

1

iv

TABLE OF AUTHORITIES

CASES PAGE

United States Department of Energy v.

Ohio, et al,

T72 FS... GE. TET CIB ine saccscsivenscces 5.6

EPA v. State Water Resources

Control Board,

426 U.S. 200, 222, n. 37 (1976)....... 5.6

U.S. v. Dee,

912 F.2d 741, 744 (4th Cir. 1990)...... 6, 7

STATUTES

Clean Air Act, 42 USCA 7602(e)........ 7, 8

Clean Water Act § 1362(5)............. 5, &

Clean Water Act §309(c)(6)

h(n 4

Oe Ge. FE Oo thks ince 2

RCRA, 42 U.S. §§6901, et seq.......... 6

FICRA, 42 USCA GOGGB.......cccccscceses: 7

Federal Insecticide, Fungicide and

Rodenticide Act, 7 USCA 136.......... 7

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JOHN C. CURTIS,

PETITIONER

V.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES:

John H. Curtis petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (Ap.., infra, 1a-

8) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App.., infra,

9a) was entered on March 8, 1993. The jurisdiction of

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

STATEMENT

John Hoyt Curtis was Fuel Division Director at

Adak Naval Air Station in Alaska during the winter of

1988-89. In that capacity, Curtis managed several

civilian employees who were responsible for storing and

pumping various types of fuels used at Adak for

generation of steam and electricity.

On September 21, 1991, Curtis was indicted on

five counts of knowingly discharging a pollutant (jet fuel)

into the surface waters of the United States in violation

of sections 301(a) and 309(c)(1) of the Federal Water

Pollution Control Act of 1972 (Clean Water Act).

codified at 33 U.S.C. §§ 1311(a) and 1319(c)(1).

Specifically, the government charged that on 41

separate occasions between October 1988 and

February 1989, Curtis directed his subordinates to pump

jet fuel through the pipeline connecting the main storage

tanks to the steam and electrical generating plants,

knowing at the time that the pumping would cause jet

fuel to leak from an abandoned spur line. The

government alleged that Curtis’ actions ultimately

caused the jet fuel to leak into an intermittent stream,

some of which then flowed into Sweeper Creek and the

Bering Sea.

Curtis moved to dismiss the _ indictment,

contending, among other arguments, that he was not a

“person” subject to the enforcement provisions of the

Clean Water Act as defined in Sections 309(c)(6) and

502(5). The district court denied Curtis’ motion to

dismiss.

After three days of deliberation, the jury found

Curtis guilty on one court of knowingly discharging a

pollutant and two counts of the lesser included offense

of negligent discharge of a pollutant. He was found not

guilty on the remaining two counts. The district court

sentenced Curtis to ten months imprisonment on each

count to be served concurrently.

REASONS FOR REVIEW

1. The Decision Below Conflicts with the

decisions of the Supreme Court construing the Clean

Water Acct.

The Court below interpreted the failure of the

Clean Water Act to specifically exempt federal

employees acting within the scope of their employment

from criminal liability as imposing criminal liability upon

those employees. That result by the court of appeals is

untenable in view of this Court’s holdings in EPA v.

State Water Resources Control Board, 426 U.S. 200,

222, n. 37 (1976) determining, "That federal agencies,

departments and instrumentalities are not "persons"

within the meaning of § 301(a) and the amendments."

United States Department of Energy v. Ohio, et al., 112

S. Ct. 1627 (1992) (any waiver of sovereign immunity

must be unequivocal). The court of appeals ruling

6

holding implies that waiver of sovereign immunity may

be inferred. (App., infra, 5a-7a).

The definition of "person" found in § 1362(5) of

the Clean Water Act has not changed since the opinion

in EPA. The court below quotes from a case involving

RCRA, 42 U.S. §§ 6901, et seq. U.S. v. Dee, 912 F.2d

741, 744 (4th Cir. 1990), saying that “the term

“individual” includes federal employees prosecuted in

their individual capacities." RCRA defines “person" to

include governmental corporation. CWA does not

include "governmental corporations." Neither statute

includes the United States in its definition of "person."

The failure of the court below to acknowledge the

definitions of "person" in the CWA and in the opinions

of this Court justify the grant of certiorari to review the

judgment below.

2. There has been no waiver of immunity in

criminal cases involving federal employees acting within

the course and scope of their employment.

Federal employees acting within the course and

scope of their employment are entitled to the protection

of immunity from criminal prosecution. There are

numerous statutes dealing with the environment. They

are all placed under the jurisdiction of EPA. Each of the

environmental statutes includes a definition of "person."

Some include a definition similar to that found in CWA.

The Federal insecticide, Fungicide and Rodenticide Act,

7 USCA 136. Other statutes extend the term person to

include statutes extend the term person to include

(government corporations). RCRA 42 USCA 6903.

"Person" is defined in the Clean Air Act 42 USCA

7602(e) as including "any agency, department, or

instrumentality of the United States and any Officer,

agent or employee thereof." If Congress had intended

for the CWA to apply to the Federal Government or its

employees, it would say so. The EPA case was decided

in 1976. Congress amended the definition section of

CWA in 1988, but did not change the definition of

“person.” Therefore Federal employees are entitled to

immunity in criminal cases.

The Court in the DOE case held that there was no

waiver of sovereign immunity from liability for civil fines.

That reasoning applies to this case.

9

CONCLUSION

For these reasons, a writ of certiorari should

issue to review the judgment and opinion of the Ninth

Circuit.

Respectfully submitted,

Ke Da

LOUIS DUGAS, UR.

1804 North 16th a

Orange, Texas 77630

(409) 883-3506

TSB No. 06173000

ATTORNEY FOR PETITIONER

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 92-30235

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

JOHN HOYT CURTIS,

Defendant-Appellant

Appeal From The

United States District Court

For The District of Alaska

James K. Singleton,

District Judge, Presiding

Submitted January 8, 1993

Seattle, Washington

Filed March 8, 11993

Before: Jerome Farris and Andrew J.

Kleinfeld, Circuit Judges,

and David Alan Ezra,

District Judges

Opinion by Judge Ezra

OPINION

EZRA, District Judge:

John Hoyt Curtis appeals his conviction for

discharging a pollutant into the surface waters of the

United States in violation of the Clean Water Act

("CWA"), 33 U.S.C. §§ 1311(a), 1319(c)(2)(A). He

argues that the CWA does not apply to federal

employees whose alleged violations occurred in the

course of their employment. We reject the argument.

Since Curtis is a "person" subject to the enforcement

provisions of the CWA as defined in 33 U.S.C. §§(c)(6),

1362(5), we affirm.

1. Facts

John Hoyt Curtis was Fuels Division Director at

Adak Naval Air Station in Alaska during the winter of

1988-89. In that capacity, Curtis managed several

civilian employees who were responsible for storing and

pumping various types of fuels used at Adak for

generation of steam and electricity.

On September 21, 1991, Curtis was indicted on

five counts of knowingly discharging a pollutant (jet)

fuel) into the surface waters of the United States in

violation of sections 301(a) and 309(c)(1) of the Federal

Water Pollution Control Act of 1972 (Clean Water Act),

codified at 33 U.S.C. §§1311(a) and 1319(c){1).

Specifically, the government charged that on 41

separate occasions between October 1988 and

February 1989, Curtis directed his subordinates to pump

jet fuel through the pipeline connecting the main storage

tanks to the steam and electrical generating plants,

knowing at the time that the pumping would cause jet

fuel to leak from an abandoned spur line. The

government alleged that Curtis’ actions ultimately

caused the jet fuel to leak into an intermittent stream,

some of which then flowed into Sweeper Creek and the

Bering Sea.

Curtis moved to dismiss the indictment,

contending, among other arguments, that he was not a

"person" subject to the enforcement provisions of the

Clean Water Act as defined in sections 309(c)(6) and

502(5). The district court denied Curtis’ motion to

dismiss.

After three days of deliberation, the jury found

Curtis guilty on one count of knowingly discharging a

pollutant and two counts of the lesser included offense

of negligent discharge of a pollutant. He was found not

guilty on the remaining two counts. The district court

sentenced Curtis to ten months imprisonment on each

count to be served concurrentiy.

Curtis contends that the district court erred in not

dismissing the indictment. He contends that the Clean

Water Act does not apply to federal employees whose

alleged violations occurred in the course of their

employment.

Il. Standard of Review

A district court’s decision to deny a motion to

dismiss an indictment based on its interpretation of a

federal statute is reviewed de nova. United States v.

Dahms, 938 F.2d 131, 133 (9th Cir. 1991); United

States v. Marinez, 806 F.2d 945 (9th Cir. 1986), cert.

denied, 487 U.S. 1056 (1987).

ill. Analysis

33 U.S.C. § 1319(c)(2) provides in part:

Any person who knowingly violates sections

1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or

1345 of this title, or any permit condition or limitation

implementing any of such sections in a permit issued

under section 1342 of this title .... (emphasis added.)

The Clean Water Act defines person as "an individual,

corporation, partnership, association, State,

municipality, commission, or political subdivision of a

State, or any interstate body." 33 U.S.C. § 1362(5).

Curtis contends that the Clean Water Act must be

read in para materia with other environmental statues,

several of which explicitly include federal employees as

individuals. The failure to specifically include federal

employees within the definitions of the CWA, Curtis

suggests, was a deliberate decision made with

knowledge of the inclusion of federal employees in the

other statutes. When the CWA is read in sialic:

with these other statutes, Curtis argues, it demonstrates

Congress’ intent not to subject federal employees acting

within the scope of their employment to criminal

prosection.

Normally, if the language of a statute is

unambiguous, its plain meaning controls. In re

Perroton, 958 F.2d 889, 893 (9th Cir. 1992) ("If the

language of the statute is clear and unambiguous,

judicial inquiry is complete and that language controls

absent rare and exceptional circumstances."); Pyramid

Lake Paiute Tribe v. U.S. Dept. of Navy, 898 F.2d

1410, 1417 (9th Cir. 1990); U.S. v. Brittain, 931 F.2d

1413,1419, (10th Cir. 1991), cert. denied, 111 S. Ct.

1307 (1991) (holding that the unambiguous language of

§§71319(c) and 1362(5) defines "individual" broadly to

include city employees who willfully or negligently

Caused a violation of an NPDES permit).

The Fourth Circuit has considered a related claim

of federal employee immunity and concluded that the

term "individual" includes federal employees prosecuted

in their individual capacities. US. v. Dee, 912 F.2d 741,

744 (4th Cir. 1990) (federal employees acting in scope

of employment and immune from prosecution under

Resource Conservation and Recovery Act, 42 U.S.C.

§§6907 et seqg.).

[1] Individual government employees are not

ordinarily immune from prosecution for their criminal

acts. O’Shea v. Littleton, 414 U.S. 488, 503 (1974); cf.

Butz v. Economou, 438 U.S. 478, 506 (1978) (‘all

individuals, whatever their position in government are

subject to federal law.").

[2] Nothing in the CWA indicates that Congress

intended to depart from this principle. Section 313(a) of

the CWA, which governs federal facilities pollution

control, provides that

Each department, agency, or

instrumentality of the executive, legislative,

and judicial branches of the Federal

Government ... and each officer, agent, or

employee thereof in the performance of his

Official duties, shall be subject to, and

comply with, all Federal, State, interstate,

and local requirements, administrative

authority, and process and sanctions

respecting the control and abatement of

water pollution in the same manner, and

to the same extent as any

nongovernmental entity including the

payment of reasonable service charges.

33 U.S.C/ § 1323(a).

[3] Furthermore, section 313(a), the only section

of the Act to mention federal employees, specifically

excludes federal employees acting within the scope of

their employment from civil liability but makes no

mention of criminal liability. It provides in relevant part:

.. . No officer, agent, or employee of the

United States shall be personally liable for

any civil penalty arising from the

performance of his official duties, for

which he is not otherwise liable ..../d.

(Emphasis added).

The in para materia reading urged by Curtis is

inappropriate where, as here, the statute is clear and

unambiguous. If we were to go beyond the statutory

language, we might as easily infer a negative pregnant

from the federal employee civil exemption for criminal

liability, as from the explicit inclusion of federal

employees in other statutes. In any event, Curtis has

not made a showing that Congress intended the CWA to

be part of a statutory scheme. See 2B Norman J.

Singer, Sutherland Statutory Construction § 51.07 at

118 (5th ed. 1992) ("[I]n the absence of some evidence

that the legislators were cognizant of the other statutes

the presumption [that the legislature was aware of prior

legislation] should be rejected and the act not so

construed in para materia unless all other means of

determining the intent of the legislature have been

exhausted.") Accordingly, we find no reason to depart

from the plain meaning of the statute.

[4] In accord with the statutes’ plain meaning,

individual federal employees acting within the course

and scope of their employment are subject to criminal

prosecution for violation of the Clean Water Act.

AFFIRMED.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 92-30235

CT/AG#: CR-91-75-JTS

UNITED STATES OF AMERICA,

Plaintiff - Appellee

V.

JOHN H. CURTIS,

Defendant - Appellant

APPEAL FROM the United States District Court

for the District of Alaska (Anchorage).

THIS CAUSE came on to be heard on the

Transcript of the Record from the United States District

Court for the District of Alaska (Anchorage) and was

duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment

of the said District Court in this cause be, and hereby is

AFFIRMED.

Filed and entered: 03/08/93

cc: Dugas

Bryson

Filkin

Judge Singleton