Opposition Brief — Curtis v. United States

LED

SEP 7 1993

No. 93-48 OFFICE OF THE CLERK

Iu the Suprenve Court of the Wuited States

OCTOBER TERM, 1993

JOHN H. CURTIS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

DREW S, Days, IT]

Solicitor General

MYLES E, FLINT

Acting Assistant Attorney General

ROBERT L. KLARQUIST

JEFFREY P, KEHNE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

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"BEST AVAIL

QUESTION PRESENTED

Whether petitioner is immune from criminal prose-

cution for discharging pollutants into the waters of

the United States in violation of Sections 301(a)

and 309(c) of the Federal Water Pollution Control

Act, 33 U.S.C. 1311(a), 1319(c), because he took

the actions that led to his conviction in the course of

his work as a federal employee.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

California V. Walters, 751 F.2d 977 (9th Cir.

al ep ee Eo

EPA V. California, 426 U.S. 200 (1976) ........0000......

Gravel v. United States, 408 U.S. 606 (1972) .........

Greenport Basin & Constr. Co. v. United States,

I I ce arcnnsncommannvicecesbunsucsts

Imbler v. Pachtman, 424 U.S. 409 (1976) _.....000....

Neagie, In ve, 186 US. 1 (1890) ...............................

O’Shea V. Littleton, 414 U.S. 488 (1974) .....0.00.00.....

United States v. Brewster, 408 U.S. 501 (1972)...

United States v. Brittain, 931 F.2d 1413 (10th Cir.

Neen a ec aienilipuabensseenas

United States v. Dee, 912 F.2d 741 (4th Cir. 1990),

cert. denied, 111 S. Ct. 1807 (1991) ........0000000.....

United States Dep’t of Energy Vv. Ohio, 112 S. Ct.

2 coateievoocenensonée

Constitution and statutes:

U.S. Const. Art. I, § 6, Cl. 1 (Speech or Debate

cs cannevenbinnanine

Act of July 14, 1955, ch. 360, 69 Stat. 322 ..............

Clean Air Act Amendments of 1963, Pub. L. No.

88-206, § 9(e), 77 Stat. 400 (42 U.S.C. 1857h (e)

a acs shonuh mannaneaticinnns

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, §301(b), 91 Stat. 770 (42 U.S.C. 7602

Page

10

or

4-1 1-3 00

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IV

Statutes—Continued: Page

Federal Insecticide, Fungicide, and Rodenticide Act

of 1972, 7 U.S.C. 136 et seq.:

BY Ry he oe: 1 enorme an

§ 125(b) (3), 7 U.S.C. 136) (b) (3) ...............

Federal Water Pollution Control Act, 33 U.S.C.

1251 et seq.:

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BL Ci), Te are BECP: ventveecisencccnetnnnieceennse 2,4

§ 309 (c), 8B U.S.C. TB1LD(6) ......-.-2.2-00-00-.2002. 2, 3, 4, 5, 6

§ 309 (c) (6), 83 U.S.C. 1819 (c) (6) ..........000. 4

$311 (a) (7), 38 US.C. 18214a) (7) .................. 4

§ 312(a) (8), 38 U.S.C. 1822(a) (8) ................... 4

6

4

2

9

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§ 402(a)-(c), 33 U.S.C. 1842 (a) -(c) ........-..-.....

§ 502(5), 38 U.S.C. 1862 (5) ...................... 2, 3, 4, 6, 8, $

Resource Conservation and Recovery Act, § 1004

CRD, GE UTR R ND mariccnccvnveessnecccrsscctreresennee 8-9

Water Pollution Control Act Amendments of 1956,

i, ae Be ee ee OD wa naccecrtnrcisonsitenssctewnnntarionetinn 9

Miscellaneous:

2B N. Singer, Sutherland Statutory Construction

EPRI, EUIINIED. sicidirsctesentcdenccsentenaxeelaccbuseisenvcnebammanheees 8

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-48

JOHN H. CURTIS, PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

A1-A11) is reported at 988 F.2d 946.

JURISDICTION

The judgment of the court of appeals was entered

on March 8, 1993. The petition for a writ of cer-

tiorari was filed on June 7, 1993. The jurisdiction of

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

STATEMENT

Petitioner was convicted on one count of knowingly

discharging a pollutant into waters of the United

(1)

2

States in violation of Sections 301(a) and 309(c)

of the Federal Water Pollution Control Act (Clean

Water Act or CWA), 33 U.S.C. 1311(a), 1819(c),

and two counts of the lesser included offense of neg-

ligently discharging a pollutant. Petitioner was sen-

tenced to concurrent terms of 10 months’ imprison-

ment on each count. The court of appeals affirmed.

1. Petitioner was the Fuels Division Director for

Adak Naval Air Station, Alaska, during the fall and

winter of 1988-1989. In that capacity, petitioner

oversaw the distribution of jet fuel and gasoline from

tanks in the base’s central storage area. The base’s

power and steam plants burned jet fuel, which was

distributed from the storage area by an underground

pipeline. Between October 1988 and February 1989,

petitioner directed his subordinates on numerous

occasions to pump jet fuel through a pipeline connect-

ing the base’s main storage tanks to its steam and

electrical generating plants. Petitioner knew that

that pumping would result in leakage from an aban-

doned spur line. The pumping in fact caused jet fuel

to leak into the bed of an intermittent stream, to flow

into an adjoining creek and from that creek into the

Bering Sea. See Pet. App. A3-A4.

2. Petitioner was indicted on five counts (one for

each month during which he used the faulty pipeline)

of violating the Clean Water Act by knowingly caus-

ing fuel to be discharged into waters of the United

States without a required permit. See 33 U.S.C.

1342(a)-(c); C.A. App. 13-20. Petitioner moved to

dismiss the indictment, arguing that as a federal

employee, he was outside the scope of the definition

of “person” in Section 502(5), 33 U.S.C. 1362(5),

and, therefore, beyond the reach of criminal prosecu-

3

tion under Section 309(c). The district court denied

the motion. Pet. App. A4. After an eight-day jury

trial, petitioner was found guilty and sentenced as

indicated above.

3. The court of appeals affirmed, rejecting peti-

tioner’s claim to immunity from criminal prosecution

for offenses committed in the course of his work for

the Navy. Pet. App. Al-All. The court explained

that Section 502(5) of the CWA, 33 U.S.C. 1362(5),

unambiguously exposes federal employees to criminal

liability by defining “person[s],” the subject of the

criminal proscriptions in Section 309(c), to include

“individual[s].” Pet. App. A6. The court also ob-

served that Section 313(a) of CWA, the only Section

to refer to federal employees, expressly protects fed-

eral employees acting within the scope of their

employment from ‘any civil penalty [under the

CWA] arising from the performance of [their] off-

cial duties” (33 U.S.C. 13828(a)), but says nothing

of criminal liability. Pet. App. A9-A10.

ARGUMENT

The court of appeals correctly concluded that

neither the CWA nor any immunity doctrine protects

federal employees from prosecution for criminal vio-

lations of federal water pollution controls, and its

decision does not conflict with any decision of this

Court or another court of appeals. Accordingly, fur-

ther review is not warranted.

1. Petitioner first argues (Pet. 5-6) that he is not

a “person” subject to criminal prosecution under the

CWA. The court of appeals correctly rejected this

claim. The CWA was enacted in 1972 “to restore

and maintain the chemical, physical, and biological

————

4

integrity of the Nation’s waters.” 33 U.S.C. 1251(a).

To achieve that goal, Section 301(a) of the CWA, 33

U.S.C. 1311(a), prohibits the discharge of pollutants

into navigable waters of the United States except in

accordance with a permit issued under Section 402

of the Act, 33 U.S.C. 1342. Any “person” who dis-

charges a pollutant into waters of the United States

without authorization in a permit is subject to crim-

inal penalties under Section 309(c), 33 U.S.C.

1319(c).

The “person[s]” subject to the criminal enforce-

ment provisions of the CWA are identified in Sections

309(c)(6) and 502(5), 33 U.S.C. 1319(c) (6),

1362(5). Under Section 502(5), the general defini-

tion of the term, “ ‘person’ means an individual, cor-

poration, partnership, association, State, municipal-

ity, commission, or political subdivision of a State,

or any interstate body.” ’ The court of appeals there-

fore was correct in concluding that federal employees

—who are quite clearly “individual[s]”—are “per-

son[s]” under the CWA.

Congress’s intention to subject federal employees

to prosecution for criminal violations of the CWA is

1 Section 309(c) (6), 33 U.S.C. 1319(c) (6), adds “responsi-

ble corporate officer[s]” to the terms found in the general

definition, explicitly authorizing prosecutions of corporate offi-

cers who exercise supervisory authority over employees who

violate the Act. See United States v. Brittain, 931 F.2d 1413,

1419 (10th Cir. 1991). Other provisions tailor the general

definition of “person” to the specific purposes of other Sections

of the Act. See 33 U.S.C. 1321(a) (7) (more restrictive defi-

nition for purposes of oil and hazardous substance liability) ;

33 U.S.C. 1322(a) (8) (governmental entities and “individ-

ual[{s] on board * * * public vessel[s]” omitted from the gen-

eral definition for purposes of restrictions on marine sanita-

tion devices).

7

also evident from other provisions of the CWA. Sec-

tion 313(a), 33 U.S.C. 1323(a), is the only provision

of the CWA that exnressly mentions fadaral amnlyv-

ees. That Section provides that each federal ‘“depart-

ment, agency, or instrumentality,” and each “officer,

agent, or employee thereof * * * shall be subject to,

and comply with, all Federal, State, interstate, and

local requirements, administrative authority, and

process and sanctions eo . the control and

abatement of water pollution in‘the same manner,

and to the same extent as any non-governmental en-

tity.” 33 U.S.C. 1323(a). The obligation to comply

extends to ‘“‘any requirement whether substantive or

procedural,” notwithstanding ‘any immunity of such

agencies, officers, agents, or employees under any law

or rule of law.” bid. (emphasis supplied).

Civil enforcement of these requirements against

the federal government and its employees is carefully

limited. As against the United States, Section 313(a)

allows States to obtain “forward-looking orders en-

joining future violations,” but not “backward-looking

penalties for past violations.” United States Dep’t of

Energy v. Ohio, 112 S. Ct. 1627, 1637 (1992).* With

respect to federal employees, Section 313(a) bars

any enforcement action under the CWA for “any civil

penalty arising from the performance” of any such

2 Section 313(a) operates differently with respect to federal

agencies and federal employees. For federal agencies, which

are not “person[s]” within the meaning of Section 309(c),

see DOE v. Ohio, 112 S. Ct. at 1634-1635, Section 313(a) pro-

vides a limited waiver of federal immunity from certain types

of enforcement measures, id. at 1636-1639. For federal em-

ployees, who are “person[s]” within the reach of the general

enforcement provisions, Section 313(a) clarifies and limits the

liability that would otherwise attach.

6

employee’s “official duties” (emphasis supplied). Ab-

sent from this provision is any indication that Con-

gress intended to insulate federal employees from

prosecution for criminal violations under Section

309(c). In view of the broad exemption from civil

liability that Section 313(a) extends to federal em-

ployees, an exemption that makes the threat of crim-

inal prosecution especially important to successful

enforcement in this context, Congress’s failure to pro-

vide for criminal immunity should not be regarded

as an oversight.

Petitioner nonetheless contends that he is not a

“person”? under the CWA because “federal agencies,

departments, and instrumentalities are not ‘persons’

within the meaning of §$ 301(a).” Pet. 5 (quoting

EPA vy. California, 426 U.S. 200, 222 n.87 (1976) ).

But petitioner was indicted, tried and convicted as an

individual, not as an agent or instrumentality of the

government. The liability of individual empleyees is

not dependent on any liability to which their employ-

ers may be subject. Indeed, the fact that Section

502(5) excludes federal agencies from the definition

of “person,” while including all “individual[s],” with

no parallel exclusion for federal employees, reinforces

rather than undermines the court of appeals’ conclu-

sion that federal employees are “‘person[s]” subject

to criminal liability under the CWA. Because peti-

tioner was properly prosecuted in his individual ca-

pacity, his invocation of “sovereign immunity” (Pet.

5) is entirely misplaced. See United States v. Dee,

912 F.2d 741, 744 (4th Cir. 1990), cert. denied, 111

S. Ct. 1307 (1991).°

3 The doctrine of official, as distinct from sovereign, im-

munity is also inapplicable here. This Court has carefully

restricted the circumstances under which official immunity

7

2. Petitioner also argues (Pet. 7-8) that the

CWA’s omission of an express statement identifying

federal employees as “‘person[s],” read in conjunction

with provisions in other environmental statutes that

expressly identify federal employees and ‘government

corporations” as “‘person[s],”’ indicates that Congress

did not intend that federal employees be treated as

doctrines may be invoked to defeat criminal prosecutions. See,

e.g., Gravel v. United States, 408 U.S. 606, 624-625, 627

(1972) (Speech or Debate Clause); United States v. Brewster,

408 U.S. 501, 507-529 (1972) (same). For example, in O’Shea

v. Littleton, 414 U.S. 488 (1974), the Court observed that

while a state judge would enjoy absolute immunity from civil

liability in a civil rights action arising out of his official duties,

the absence of immunity from criminal prosecution would fur-

nish an important check against misuse of office. The Court

explained that it had “never held that the performance of the

duties of judicial, legislative, or executive officers, requires or

contemplates the immunization of otherwise criminal depriva-

tions of constitutional rights.” 414 U.S. at 503; see also Imbler

Vv. Pachtmean, 424 U.S. 409, 429 (1976) (“This Court has never

suggested that the policy considerations which compel civil

immunity for certain governmental officials also place them

beyond the reach of the criminal law.”). Petitioner’s claim of

immunity is weaker than those already rejected by this Court

because he did not occupy a position singled out by the Con-

stitution or common law for special protection from civil

suits.

We note that because petitioner was employed by and

prosecuted by the Executive Branch of the federal govern-

ment, this case does not raise issues of federal supremacy,

federalism, or separation of powers that have shaped im-

munity doctrine in other contexts. See, e.g., In re Neagle,

135 U.S. 1 (1890) (habeas corpus relief for federal officials

held for criminal prosecution under state law for actions

within the scope of their federal employment): cf. California

Vv. Walters, 751 F.2d 977, 979 n.1 (9th Cir. 1985) (reserving

question of federal officials’ exposure to prosecution for state

hazardous waste crimes).

8

“nerson[s]” subject to prosecution for CWA viola-

tions. As the court of appeals correctly noted (Pet.

App. 7A), that argument cannot succeed in light of

the clear and unambiguous language of the CWA

making federal employees subject to federal prosecu-

tion. See, e.g., Greenport Basin & Constr. Co. v.

United States, 260 U.S. 512, 516 (1923) (clear stat-

utory language bars argument drawn from the lan-

guage of other statutes).

In any event, petitioner’s in pari materia argument

fails on its own terms. Comparisons of functionally

similar provisions of different statutes can support

the type of inference that petitioner advocates only if

there are reliable indications that the legislature con-

sidered and rejected existing alternative formulations

when it devised the provision at issue. See 2B N.

Singer, Sutherland Statutory Construction § 51.01 at

118 (5th ed. 1992). There is no indication, however,

that Congress consulted the definitional provisions

cited by the petitioner—Section 2(s) of the Federal

Insecticide, Fungicide, and Rodenticide Act of 1972

(FIFRA), 7 U.S.C. 136(s) ;* Section 1004(15) of

4 Petitioner’s reference to FIFRA is especially unhelpful to

his argument. The FIFRA definition of “person,” like the

CWA definition, identifies “individual[s]” as persons without

explicitly affirming that federal employees are individuals.

Nevertheless, the Act’s criminal enforcement provisions ex-

pressly exempt “public official{s]” from prosecution for acts

undertaken “in the performance of [their] official duties,” 7

U.S.C. 136] (b) (3), an exemption that would be superfluous

unless federal employees qualified as “persons” under Section

2(s). Thus, if a comparative analysis of FIFRA and the CWA

supports any inference concerning federal employees’ account-

ability for criminal violations of the CWA, it is that Congress

intended for federal employees to be treated as “individ-

ual{s]” within the meaning of Section 502(5) and purpose-

9

the Resource Conservation and Recovery Act, 42

U.S.C. 6903(15); and Section 302(e) of the Clean

Air Act (CAA), 42 U.S.C. 7602(e)—when it devised

the definition of “person” found in Section 502(5) of

the CWA.

In addition, none of the cited statutes contains a

definition of “person” that Congress could have con-

sulted when it devised the definition that became Sec-

tion 502(5) of the CWA. When Congress enacted

Section 502(5), as part of its general revision of fed-

eral water pollution control law in 1972, it carried

forward, almost verbatim, the definition of ‘“‘person”’

set forth in the existing statute. That definition origi-

nated in the Water Pollution Control] Act Amendments

of 1956, ch. 518, § 1, 70 Stat. 505. Since none of the

other definitions of ‘“‘person’” cited by petitioner ex-

isted in 1956, Congress could not have consulted them

when it devised the language that became Section

502(5).° Nor, it follows, could Congress have antici-

pated that courts would rely on comparisons with

those provisions in construing the plain terms of the

CWA definition. Accordingly, even if petitioner’s in

pari materia analysis were not foreclosed by the plain

language of the CWA, it would not support the in-

ference he urges.

fully chose not to shield them from criminal liability for CWA

violations.

5 A precursor to the current CAA existed as early as 1955.

See Act of July 14, 1955, ch. 360, 69 Stat. 322. But the CAA

did not include a definition of “person” until 1963, see Clean

Air Act Amendments of 1963, Pub. L. No. 88-206, § 9(e), 77

Stat. 400, formerly codified at 42 U.S.C. 1857h(e) (1970), and

did not acquire its present definition of the term until 1977,

see Clean Air Act Amendments of 1977, Pub. L. No. 95-95,

§ 301 (b), 91 Stat. 770, codified at 42 U.S.C. 7602(e).

10

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

ROBERT L. KLARQUIST

JEFFREY P. KEHNE

Attorneys

SEPTEMBER 1993

VW ou. S. GOVERNMENT PRINTING OFFICE; 1993 342479 B6014