United States Department of Energy v. Ohio – Oral Argument – December 03, 1991

Media for United States Department of Energy v. Ohio

Audio Transcription for Opinion Announcement – April 21, 1992 in United States Department of Energy v. Ohio

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William H. Rehnquist:

We’ll hear argument now in No. 90-1341, United States Department of Energy v. Ohio, and 90-1517, Ohio v. United States Department of Energy.

Mr. Feldman.

James A. Feldman:

Thank you, Mr. Chief Justice, and may it please the Court:

This, a case… this case arises from a suit by the State of Ohio against the United States Department of Energy, concerning the operation of DOE’s Fernald, Ohio uranium processing plant.

Now, all aspects of the case have been settled, other than the State’s claim for State and Federal civil penalties.

Thus, as the case comes to this Court, the issue before the Court is solely whether civil penalties are available against the Federal Government under four specific provisions of the Clean Water Act and the Resource Conservation and Recovery Act, RCRA.

Now it’s our position that the provisions are most reasonably interpreted not to waive sovereign immunity as to civil penalties.

But the issue in the case is not whether we can show that those provisions mean what they say they do.

The issue is, because this involves a waiver of sovereign immunity, whether the State can show that Congress clearly and unambiguously, in the language of these statutes, waived sovereign immunity from civil penalties.

Now that, that is based on the well-settled rule that it is up to the State to prove… to show that a waiver exists, that any doubts concerning whether there’s a waiver should be resolved against finding a waiver of sovereign immunity, and that a waiver of sovereign immunity must be clear and unambiguous.

Congress was well aware of those principles at the time when the provisions at issue here were enacted.

Indeed, the key provisions, which are the Federal facilities provisions of the Clean Water Act and of RCRA, were enacted within a year or so after this Court’s decisions in Hancock against Train and EPA against California, which specifically rested on the clear statement principle.

Indeed, Congress must have been aware of that principle.

And I think if we… if you look at the language of the statutes at issue, it’s impossible to find a clear and unambiguous waiver under those standards.

Now, if there were still any doubt, there are two features of the case that suggest that that clear statement rule has to be applied with particular rigor.

First, there’s the long-settled understanding that where an asserted waiver of sovereign immunity would upset the delicate Federal-State balance, and in particular, where it subjects the Federal Government to regulation by States, it’s particularly appropriate to apply the clear statement rule.

And that is… that would be the case here.

Secondly, where an asserted waiver of sovereign immunity would have an effect on the Federal… and perhaps more important where an asserted waiver of sovereign immunity is penal in nature, the Court has also applied the clear statement rule with particular rigor.

Perhaps the case that’s most closely on point is Missouri Pacific Railroad–

John Paul Stevens:

May I interrupt you, Mr. Feldman, because there is one sentence in the statute that does seem rather clear.

It says… just the second half of it on page 58 of your opinion… the United States shall be liable only for those civil penalties arising under Federal law.

Now, in any case, it must arise under Federal law.

But can you not… can that any way possibly be interpreted to say there’s no case in the world in which the United States shall be liable for a civil penalty?

James A. Feldman:

–Yes.

That–

John Paul Stevens:

Your position that there is simply no case to which that language applies?

James A. Feldman:

–That language would apply to civil penalties or… it would apply to monetary sanctions which could be called civil penalties that are imposed as a result of the Federal Government’s failure to comply with an injunction that was issued under the statute.

But that language itself is not the language of waiver.

It’s a language of limitation.

So we would submit that that language itself doesn’t waive sovereign immunity.

James A. Feldman:

And if you look at the earlier language, earlier in the same provision… I might refer you to page 1(a) of the appendix of our brief where it’s reprinted… there are three categories of items as to which sovereign immunity is waived.

If you look on page 1(a), and about eight lines down, it’s look… that’s requirements–

William H. Rehnquist:

1(a) of what, Mr. Feldman?

James A. Feldman:

–Of the appendix to our brief.

This is the Federal facilities provision of the Clean Water Act.

And there are three… there are three categories of items waived: requirements, administrative–

John Paul Stevens:

That’s the same section from which I just read.

James A. Feldman:

–Yes, earlier in the same section.

And it would… it’s our understanding of the provision that the waiver is in the earlier part of that statute.

And that waiver limits financial penalties to those sanctions that are imposed as a result of failure to pay… to comply with court process, or injunctive relief.

Sandra Day O’Connor:

Well, why do you say the last sentence could not be construed as a waiver, at least as to civil penalties arising under Federal law?

The last sentence of what, Justice O’Connor?

Of the same section that we’re looking at, let me see… it’s the section 313 of the Clean Water Act, right?

James A. Feldman:

Yes… that… the sentence to which you’re referring is on 2(a) if you’re looking at the appendix to our brief.

Having… it would be our… it’s our understanding–

William H. Rehnquist:

Where does the last sentence that is being referred to begin?

Is it towards the bottom of 2(a)?

James A. Feldman:

–It’s not actually the last provision… the last sentence–

No, it’s not.

James A. Feldman:

–of the statute.

It’s about the sixth… maybe the… one, two, three, four… about the ninth line down.

William H. Rehnquist:

On page 2(a)?

James A. Feldman:

On page 2(a).

It says the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order of the process of such court.

Having already limited the kinds of financial penalties that could be paid to those that are… that arise from… having already limited the waiver of immunity to process and sanctions–

Sandra Day O’Connor:

Well, I’m not sure that it does.

This might extend the waiver to Federal penalties.

What are the Federal penalties that are available?

Is section 1319 the only section providing for Federal penalties?

James A. Feldman:

–Yes, and indeed one of the problems with reading this as itself being a waiver is that the only Federal penalties available are under section 1319.

James A. Feldman:

Under section 1319 civil penalties are available only against a person.

And the term person, as defined in the statute, to exclude a whole variety of different entities, does not include the Federal Government.

And therefore–

Sandra Day O’Connor:

Well, then what does Federal penalty refer to in this sentence we were just examining?

James A. Feldman:

–Civil… in this sentence, civil penalties refers back to those penalties that might be imposed on the Federal Government for failure to obey an injunction.

When a State finds that the Federal Government has not complied with a provision of the Clean Water Act, it is permitted to go into a court, and to obtain an injunction–

Byron R. White:

But that’s already covered in the… later in the sentence.

James A. Feldman:

–Later in the sentence it refers to State or local court to enforce… in other words, there is two categories: there could be those actions brought in a Federal court, in which case the penalties that would be assessed arise under Federal law, because they would be assessed for failure to obey a Federal court injunction, or imposed–

Byron R. White:

That isn’t what it says.

James A. Feldman:

–It says liable only for those civil penalties arising under–

Byron R. White:

Imposed by a State.

It doesn’t say imposed by a State court… State or local court.

James A. Feldman:

–It… I’m not… if you’re reading from the same–

Byron R. White:

State or local court?

James A. Feldman:

–By State or local court, right.

William H. Rehnquist:

But it does seem odd that if they meant simply pay civil contempt penalties imposed by a Federal, State, or local court, they would word the sentence this way.

They talk about penalties arising under Federal law.

And you’re saying that should be read as if it meant penalties imposed by Federal courts for failing to obey an injunction.

James A. Feldman:

That is the only… those are the only kind of penalties that would otherwise be provided by the Act… or the only kind of penalties that could be assessed against the Federal Government, and that could be applied.

Byron R. White:

Well, unless you say that… unless you say that this… that because the State has a role in enforcing a Federal statute that… if the State has authority to regulate a Federal agency, which, I take it, it does?

James A. Feldman:

Yes.

Byron R. White:

Under the Clean Water Act?

James A. Feldman:

Yes.

Byron R. White:

Are they… is the State enforcing a Federal law there?

James A. Feldman:

No… well, no.

The State is enforcing its own law.

Under the Clean Water Act, the structure of the statute–

Byron R. White:

I know, but it’s… but it arises under the Clean Water Act doesn’t it?

Except for the Clean Water Act, the State wouldn’t be doing what it’s doing.

And it certainly wouldn’t have the authority to… to regulate an agency.

James A. Feldman:

–I’m not sure that that’s right, although that issue isn’t presented by this case.

The Clean Water Act… the waiver… this provision of 1323 waives Federal immunity from… if you look at the prior page, from State and local administrative authority from requirements which we would understand to be the prelitigation requirements, those things that the Federal Government must do to comply with the Act and so on.

And the fact… the State statutes, for instance, the State civil penalty statute at issue in this case, was effective upon enactment by the State legislature, and it was effective against the Federal Government regardless of whether it received EPA approval or not.

The effect of having received EPA approval is simply that this Federal program, regulatory program is supplanted.

And an entity who’s in the State of Ohio doesn’t have to go both to EPA to obtain a permit, and to the State administrative agency to obtain a permit.

Antonin Scalia:

Well, maybe… maybe when Congress wrote this, the first half of the sentence they just didn’t… didn’t advert to whether there were any civil penalties arising under Federal law.

Or they thought they might enact some in the future.

James A. Feldman:

Yes.

Antonin Scalia:

And they were willing to have the Federal Government liable for any penalties arising under Federal law, but that doesn’t mean that they were willing to have the Federal Government liable for any penalties arising under State law.

James A. Feldman:

Yes.

Antonin Scalia:

And these are State statutes here that we’re talking about, right?

James A. Feldman:

Yes.

Antonin Scalia:

State penalties.

James A. Feldman:

Yes.

Antonin Scalia:

And there’s nothing in this sentence that says that they shall be liable for penalties under State law.

James A. Feldman:

That’s right… that’s right.

And… I mean, exactly.

When I say that that arising under Federal law provision applies only to… as things stand right now, it applies only to… the only kind of Federal penalties that would be available would be for failing to obey a Federal court injunction.

That doesn’t mean that there couldn’t be other Federal penalties at some point in the future, that Congress thought that there were other Federal penalties, or considered it.

Antonin Scalia:

Or that the Congress might have though there… there were some others, and didn’t want to search the statute books to make sure there were, and said if there are any… if there are any, we’re perfectly willing to make the Federal Government liable for it.

But that doesn’t mean we’re willing to make the Federal Government liable to whatever the States want to do.

James A. Feldman:

Yes.

John Paul Stevens:

But Mr. Feldman, there are some penalties that arise under Federal law.

Are there not?

James A. Feldman:

There are–

John Paul Stevens:

1319(d) describes a set of penalties that arise under Federal law.

James A. Feldman:

–Right, but those penalties are applicable only against a person.

John Paul Stevens:

Well–

James A. Feldman:

And the term person is a defined term in the statute that excludes the United States.

John Paul Stevens:

–Well, it’s also defined to include the United States in another provision.

James A. Feldman:

Right… well, if–

John Paul Stevens:

In the citizens suit provision, it expressly includes the United States.

James A. Feldman:

–I don’t think it’s–

John Paul Stevens:

So the United States is a person.

James A. Feldman:

–I wouldn’t say it’s defined.

The term persons is otherwise defined in the citizens suit provision.

If you… that provision is reprinted at 3(a), if you want to–

John Paul Stevens:

Yes, it says may bring a suit against any person, paren, including (1) the United States, and (2) any other Government agent.

That surely includes the United States within the concept of person in that section.

James A. Feldman:

–Right, and for purposes of citizens suits, the United States is–

John Paul Stevens:

And this is a citizens suit.

James A. Feldman:

–Right, and the United States is subject to a citizens suit, generally.

John Paul Stevens:

All right.

James A. Feldman:

If you follow that–

John Paul Stevens:

And there is another provision of the statute that describes penalties that may be awarded, arise under Federal law.

Why isn’t that an appropriate remedy under this case… I don’t understand.

I mean maybe I’m just dumb.

James A. Feldman:

–Okay, because the citizens suit provision generally makes citizens… makes the United States amenable to suits by citizens, like other entities under the Clean Water Act.

John Paul Stevens:

Right.

James A. Feldman:

It doesn’t generally change, though, the types of relief that are available otherwise under the Act, or have any other effect on the United States’ obligations under the Act… other than that they can be enforced at the behest of a citizen.

John Paul Stevens:

And they can be subject to appropriate penalties.

James A. Feldman:

Right, to appropriate penalties.

John Paul Stevens:

And an appropriate penalty is one arising under Federal law, according to this earlier section.

And we’ve got a Federal statute describing penalties arising under Federal law.

I don’t know what… which piece is missing?

James A. Feldman:

The piece that’s missing is that… I guess I would submit, is that the appropriate civil penalties… civil penalties are never appropriate… if you look at the–

John Paul Stevens:

Against the United States unless they arise under Federal law.

James A. Feldman:

–They say to apply appropriate civil penalties under section 1319(d) of this title.

I read that to refer back to 1319(d) to find out what civil penalties are appropriate.

Now, that… one thing that should be remembered is that phrase applies to any citizens suit against any entity under the Clean Water Act, not just the United States.

James A. Feldman:

It would be an odd way to waive sovereign immunity to waive it in a sentence that applies to any kind of citizens suit.

And indeed, if you look at that whole paragraph, what it really refers to is that any kind of relief that’s ordinarily available under the Clean Water Act is available against the… whatever is available otherwise, is available in a citizens suit.

John Paul Stevens:

No, not… the State of Ohio couldn’t pass a statute saying the penalties should be $1 million a day.

That would not be permissible.

James A. Feldman:

Against the United States are you–

Correct.

James A. Feldman:

–That’s right.

John Paul Stevens:

Because that would not arise under Federal law.

But this limits… in other words, this clearly limits it to those that are described in 1319(d).

James A. Feldman:

That’s right.

John Paul Stevens:

But I don’t know how you can say those in 1319(d) don’t arise under Federal law.

James A. Feldman:

It’s not a question of whether they… I guess there would… there’s really two parts to my answer to that.

This… the provision which says that United States shall be liable only for those civil penalties that arise under Federal law, that is limiting the waiver.

It’s not extending the waiver.

It’s not saying the United States shall be liable for penalties that arise under Federal law.

It says the United States–

John Paul Stevens:

Well, it says in so many words, shall be liable.

It also has the word only in that.

But it says, shall be liable for those penalties.

James A. Feldman:

–Right, and I would read… because it has the word only I would read that as a language of limitation, rather than extension.

And then if–

Antonin Scalia:

Where is 1319(d)?

It isn’t in your appendix.

James A. Feldman:

–It’s not in the appendix, actually–

Antonin Scalia:

Is it somewhere around here?

James A. Feldman:

–It is–

Byron R. White:

I think maybe I’ve got it here.

Wait a minute.

Well, never mind… I thought it was handy.

James A. Feldman:

–In any event, 1319(d) is a relatively… it’s a one-paragraph provision that just says any person who violates a provision of this statute shall be–

Antonin Scalia:

And where is person defined to exclude the United States, as you say?

James A. Feldman:

–That is… I can tell you, is on page… if you look at our brief on page 6, it’s the continuation of note 4.

It actually goes from 5 to 6.

That’s in 1362(5).

It says the term person means an individual, corporation, partnership, association… lists a number of entities.

And does not include the United States.

Byron R. White:

Well, yes, but 1365 says it does.

Any person, including the United States.

James A. Feldman:

Right, and we would read that to include the United States as a person for purposes of citizens suits, so that citizens suits generally may be brought against the United States, but not to alter the general definition of person for other provisions of the statute.

And if you read 1365, the intent of the language appears to… appears to us to be that they didn’t want to alter the ordinary remedial scheme of the statute here.

That ordinary remedial scheme–

Byron R. White:

Well, the last… the last… the last couple of lines of 1365–

–Where are you reading from?

In 3(a).

3(a), 1365, the last sentence or two… the last line or two says that… says that a district court could apply any appropriate civil penalties under 1319(d).

James A. Feldman:

–That’s right, and that–

Byron R. White:

And that would be against the United States.

James A. Feldman:

–Well, that would… that would… I read that language to mean that when you have a citizens suit–

Antonin Scalia:

Appropriate is the key word.

James A. Feldman:

–Right.

Antonin Scalia:

Right?

James A. Feldman:

Right, whatever penalties are appropriate in a citizens suit, may be applied by the court.

Injunctive relief is appropriate against the United States under the waiver in 1323, and therefore–

Byron R. White:

But because… because person doesn’t include the United States under the general definition of a person, it wouldn’t be appropriate to… is that it?

James A. Feldman:

–That’s right, just as it wouldn’t be appropriate to apply a civil penalty against a… well, for situations that are not otherwise covered by the civil penalty provision.

John Paul Stevens:

But Mr. Feldman, let me just point this out.

This talks about relief against the administrator, as defined in 1319(d).

By hypothesis, the administrator could not be a defendant in 1319(d) because that’s the penalties that he may obtain in litigation.

In 1319 they are enforcement actions by the administrator.

James A. Feldman:

That’s right.

John Paul Stevens:

So if you refer to that for the general citizens suit provision, you can’t just… can’t say they can do it in suits against the administrator, and then say it’s got to be an appropriate penalty in a suit brought by the administrator, is what you’re arguing.

James A. Feldman:

I’m–

John Paul Stevens:

Because 1319 deals with litigation initiated by the administrator.

So by hypothesis, the administrator could not be a defendant in a 1319(d) suit.

James A. Feldman:

–That’s right.

John Paul Stevens:

Now, how can you then say that when they refer to the administrator in this provision, they’re excluding… they’re excluding cases in which… the United States?

Because by hypothesis here, he’s a defendant in this case.

James A. Feldman:

I think possibly the answer to that is if you look at 1365(a)(2), right above that provision, one of the kinds of citizens suits that you can bring is against the administrator–

Right.

James A. Feldman:

–where the administrator is–

John Paul Stevens:

Right, and the appropriate remedy for that suit is found in 1319(d), according to the very suit.

James A. Feldman:

–For instance, no one’s argued that you could obtain a civil penalty against the administrator by virtue of that reference to 1319(d).

In other words, where the suit is brought against the administrator, all that this provision is doing in the citizens suit provision is preserving whatever remedies are otherwise applicable in citizens suits.

So for instance, where the action is brought against the administrator, the court may order the administrator to perform such act or duty as the case may be.

Where the suit is brought against a private party, the court may enforce an effluent standard, or apply appropriate civil penalties.

Similarly, where the action is against the United States, the court may also enforce an effluent standard or apply any appropriate civil penalties.

But in the case of the United States, there are no appropriate civil penalties, because civil penalties are not appropriate.

In each case, they didn’t want to alter the remedial scheme of the statute otherwise, by this last paragraph of the citizens suit provision.

They just wanted to refer all questions to be resolved in accordance with that… with that provision.

And it would be our submission that under that provision, the term person is defined in accordance with the general definition, and it excludes the United States.

Um… I think the case… the case that’s most close to, that’s closest to this, and both with respect to the specific–

Antonin Scalia:

There’s no case close to this.

[Laughter]

James A. Feldman:

–Perhaps in the complexity of the statutes this may… this may go, do one better to some of the others.

But in the Ault case, for instance, the operative language of waiver was that the United States–

Antonin Scalia:

The what case?

James A. Feldman:

–In Missouri Pacific against Ault–

Ault?

James A. Feldman:

–Yes, it was a case that arose during the Federalization of the railroads during World War I.

And Congress had passed a statute providing that the Federalized rail carriers are subject to… I think the quote is all laws and liabilities as common carriers, which is a very broad waiver provision, I think arguably broader than any of the waiver provisions that you find here… that you find here in the earlier part of 1323 at least.

James A. Feldman:

The Court held that although that provision subjecting the United States to all laws and liabilities did subject the United States to compensatory remedies, it did not extend to penal measures.

It… a particularly clear statement is required before a waiver of sovereign immunities should extend to penal measures.

In 1323, I think you don’t find such a clear waiver in any of the positive… in any of the positive terms of the statute that purport to be a waiver, neither the term requirements, nor administrative authority, nor process and sanctions.

For the reasons I said before, I think process and sanctions is coupled as a single term, grammatically in the statute, and also structurally where it’s listed under–

John Paul Stevens:

But isn’t it true that the word sanction quite frequently is used to refer to the kind of penalties that are inscribed in 1319(d)?

James A. Feldman:

–Yes… I think sanctions could be referred to… sanctions could be used to refer to penalties.

However, in this particular provision, I think because it’s coupled with process, they did… it was not a list of four items: requirements, administrative authority, process, comma, and sanctions, but rather requirements, administrative authority, comma, and process and sanctions.

And that’s reinforced by the following provision which lists each of those three things, A, B, C.

What Congress had in mind was sanctions that are necessary to enforce compliance with the court’s process.

And that would include injunctive relief, sanctions to enforce injunctive relief, but would not include civil penalties.

At the very least, that creates enough of an ambiguity or it couldn’t be said that that term, process and sanctions, unambiguously waived sovereign immunity.

And that’s what the State would have to show here.

Antonin Scalia:

It’s wonderful to know that Congress can draft with such subtlety.

That is really a very, subtle point.

It’s not sanctions used alone, but it’s sanctions with process and sanctions.

Especially when Congress… I thought Congress got a little upset about some decisions and wanted to make sure the United States got hooked to obey the law.

James A. Feldman:

These statutes were rewritten… were amended to some extent.

Byron R. White:

Yes, to do that, to do that.

And yet they were so subtle about it, that they’ve… that the United States isn’t liable at all.

James A. Feldman:

With due respect, I think that they did exactly what they intended to do, which is they subjected the United States to the full range of administrative authority of States, of the State’s substantive requirements, of permanent requirements, of reporting requirements.

And those were the things that Congress had on its mind as a result of the Court’s decisions in Hancock against Train and EPA against California.

But I think what Congress didn’t do, was go farther and give any positive consideration to, or decide that they wanted to subject the Federal Government to civil penalties.

That’s… I don’t see that in the language of the statute, or in what they did.

And certainly they didn’t unambiguously do that.

And, indeed, they knew… they should have known as a result of Hancock and EPA against California that an unambiguous waiver is what was required.

Anthony M. Kennedy:

Mr. Feldman, before you leave 1365… if it’s possible to leave it… my understanding is that these fines are paid to the United States Government under this section.

James A. Feldman:

That’s right.

Anthony M. Kennedy:

Is that… does that present a case or controversy, for Federal courts to sit and allocate money from one Federal account to another?

James A. Feldman:

I think that there would certainly be a case or controversy as between the State of Ohio, for instance, and the Federal Government here.

Because they’re asserting that–

Anthony M. Kennedy:

As to the enforcement, perhaps.

James A. Feldman:

–As to the enforcement–

Anthony M. Kennedy:

But just as to the penalty part–

James A. Feldman:

–Even as to the penalties, to some extent.

It might be questioned whether there is, and indeed, I think the strangeness of having that kind of procedure, where money is coming from one pocket of the Federal Treasury, and going into another, indeed, it may be coming from the same pocket and going right back into that same pocket.

The strangeness of that proceeding is one reason why Congress may not have provided for civil penalties here, or at least would have wanted to think twice before doing so, and I think a clear indication that they wanted to should be found before they–

Anthony M. Kennedy:

–I’m not sure if there are cases where there’s a case or controversy as to part of the relief, but not as to the other part of the relief.

But it seems to me that it’s quite questionable here that there is a case or controversy as to the fine that’s being paid from one part of the Federal Treasury to the other.

James A. Feldman:

–I agree that it would be… I agree that it would be questionable.

And again, I think that’s another reason not to assume that Congress would have intended something that both is questionable, perhaps from a standing point of view, and it would apparently be a rather futile gesture.

Antonin Scalia:

I’m… don’t we have cases captioned the United States v. Interstate Commerce Commission?

I mean, we’ve had the Federal Government suing itself up here before.

James A. Feldman:

I believe… I believe we do.

I certainly think that whenever the executive–

Antonin Scalia:

It may not be right, but we’ve done it.

James A. Feldman:

–Right, there are such cases.

Whenever one branch… one part of the executive branch… whenever the executive branch is on both sides of the case, it certainly raises a question about the case, about case or controversy.

I’d like… if there are no further questions right now, I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Feldman.

Mr. Van Kley, we’ll hear from you.

Jack A. Van Kley:

Thank you, Mr. Chief Justice, and may it please the Court:

We believe this case turns on three words scattered over the course of four statutory sections.

And we would like to very briefly spend a little bit of time beginning with the citizens suit provisions which, of course, turns on the word person.

William H. Rehnquist:

Please, if you’re going to read anything from the statute, please tell us where you… or where you are going to read from.

Jack A. Van Kley:

All right, Your Honor.

The particular statutory term that I’m referring to is found in the citizens suit provision, which is the same provision that we have been discussing with Mr. Feldman.

William H. Rehnquist:

1365–

Jack A. Van Kley:

Yes, Your Honor.

William H. Rehnquist:

–On 3(a) of the brief of the petitioner.

Jack A. Van Kley:

That’s correct, Your Honor.

Jack A. Van Kley:

The same operative language also appears in RCRA’s citizens suit provision, which is 42 USC 6961.

And that would also be in the appendix to the petition… well, actually, actually I think that we’re better off looking at the Department of Energy cross-petition on that one, because I think there was an error in the printing on that particular one, so we believe the cross-petition or… no, it’s–

It’s 6972… what number did you give–

Jack A. Van Kley:

–Right, it… I’m sorry, I misstated, Your Honor.

It’s 42 USC 6972.

Antonin Scalia:

–Right… that’s on 5(a) of the Government’s brief.

Jack A. Van Kley:

Okay, it’s on their brief.

Yeah.

Jack A. Van Kley:

It’s correct in their brief, yes.

So those are the two provisions that I’d like to dwell on just briefly here.

I think we have to go back to the discussion that Mr. Feldman and Justice Stevens had at the beginning of that dialogue concerning the phrase arising under Federal law, and how that relates to the definition of person in the citizens suit provision.

Under the Department’s interpretation, not only can citizens not file a suit for civil penalties against the Federal Government, but even EPA could not file a lawsuit for civil penalties against the Federal Government.

Which means that no one can file a civil penalty action against the Federal Government under Federal law, under the Department’s interpretation.

And that negates the operation, according to the Department… of the phrase, civil penalties arising under Federal law.

Now, civil penalties–

Sandra Day O’Connor:

Well, do you… do you agree that the only penalties provided in Federal law right now are those in 1319?

Jack A. Van Kley:

–Yes, Your Honor… yes, Your Honor.

It would be 1319, incorporated by reference into the citizens suit provision.

That’s correct.

Sandra Day O’Connor:

But 1319 contemplates that those are, are penalties that can be sought by a suit brought by EPA, by the administrator.

Jack A. Van Kley:

Yes, Your Honor, and also by a citizen.

In fact, if an ordinary citizen other than a State were to file under the citizens suit provision, that citizen would also be applying the standards in 1319.

And it’s incorporated into reference… by reference into the citizens suit provision.

And that’s where all citizens suits draw their penalty provisions from.

So by the operation of that citizens suit provision, the civil penalties against the United States are not limited to 1319 as enforced by the administrator.

We would also note that–

Antonin Scalia:

Excuse me, your contention is that this provision waives that immunity on the part of the Federal Government, although it does not on the part of the State governments?

Jack A. Van Kley:

–No, Your Honor.

Antonin Scalia:

I mean, it doesn’t eliminate the State government’s Eleventh Amendment immunity.

I mean that’s what it says.

Antonin Scalia:

It says, to the exte… any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution.

So I gather that means that you can’t… you can’t get any penalty out of the State treasury.

Jack A. Van Kley:

No, Your Honor, I would not agree with that.

That doesn’t–

Jack A. Van Kley:

No, I would not agree with that.

The States can be sued, even despite the–

Antonin Scalia:

–Well, I don’t understand what that exception means, then, any other Government instrumentality or agency to to the extent permitted… to the extent permitted by the Eleventh Amendment to the Constitution.

I thought that means to leave in there State sovereign immunity.

Jack A. Van Kley:

–No, and in fact, Your Honor, the Court recently decided another case in the Superfund area where it interpreted exactly that type of phrase, and decided that the Eleventh immunity was waived.

That was the Union Gas case, Your Honor.

So it does waive sovereign immunity for States as well as the Federal Government.

William H. Rehnquist:

Well, then, what is the reason for putting in the reference to the Eleventh Amendment there?

Jack A. Van Kley:

Um–

Byron R. White:

Well, it still had to be decided.

Let him answer the question.

Jack A. Van Kley:

–I’m not really sure, Your Honor, to tell you the truth.

So–

William H. Rehnquist:

Does this really strike you as a model of clarity?

[Laughter]

Jack A. Van Kley:

–Well–

William H. Rehnquist:

The whole thing… I mean, the rule is that to waive the sovereign immunity of the United States, you must have a clear statement, and it must be unambiguous.

And here we are, just wrestling with very vague and often self-contradictory terms.

Jack A. Van Kley:

–Well, Your Honor, we do not believe that this is ambiguous.

And we do not believe they’re self-contradictory, either.

We think that anyone can think of arguments to propose a secondary definition of any statutory term, if a person creates enough ambiguity by exercising ingenuity.

And there are many cases in the courts where people have tried to stretch the meaning of words.

But if we look at the normal meaning of these words, it is not ambiguous.

William H. Rehnquist:

Well, could you sum up, perhaps in two or three sentences, exactly how you reason your way through to the conclusion that this is–

Jack A. Van Kley:

Yes, Your Honor.

William H. Rehnquist:

–This is perfectly clear?

Jack A. Van Kley:

Yes, Your Honor.

The sovereign immunity of the United States is waived with respect to all sanctions.

Sanctions would include civil penalties under the normal meaning of that word.

In fact, even this Court, in some of the cases we’ve cited in our brief, has used the word sanctions to refer to civil penalties, and criminal penalties, and other types of penalties.

There’s a limitation sentence below that which is the arising-under clause, which limits those sanctions to those civil penalties arising under Federal law.

And that is simply the way the statute works, Your Honor.

Now, civil penalties ordinarily is not a term used to describe contempt sanctions.

In fact, Congres has been using the phrase sanctions to enforce injunctive relief in these waivers to express their desire to waive immunity for contempt sanctions.

Sandra Day O’Connor:

Well, you’re relying on the provisions of 1323, the Federal facilities pollution control statute for the waiver of sovereign immunity.

Jack A. Van Kley:

Your Honor, that is true with respect to the civil penalties assessed pursuant to the State program.

We rely solely on 1323.

With regard to the citizens suit penalties, we rely both on 1323 and the citizens suit provision.

And–

Sandra Day O’Connor:

And… but under the citizens suit provision, do you… do you rely on that to give authority for waiver of Federal sovereign immunity for civil sanctions imposed by State law?

Jack A. Van Kley:

–We believe that the specific waiver in the citizens suit provision is enough.

However, there is also another provision of waiver in 1323 which works just as well, with respect to the Clean Water Act.

Sandra Day O’Connor:

Well, if we thought 1323 did not waive Federal sovereign immunity for State law sanctions, where would that leave us?

Jack A. Van Kley:

That would leave us with the citizens suit provisions under Federal law.

If the Court decided that particular… in that particular fashion, the State of Ohio would not be able to enforce its civil penalties under its implementation of the Federal program.

Sandra Day O’Connor:

But the suit, nevertheless, covers Federal sanctions as well?

Jack A. Van Kley:

Yes, Your Honor.

Sandra Day O’Connor:

But the Sixth Circuit didn’t deal with that?

Jack A. Van Kley:

It did with respect to the RCRA citizens suit provision, but not–

Sandra Day O’Connor:

But not 1365.

Jack A. Van Kley:

–the Clean Water Act, correct, Your Honor.

Sandra Day O’Connor:

Did it under that… it did not deal with that section at all?

Jack A. Van Kley:

That’s correct.

It did not need to reach that section because the stipulation of penalty provides that the penalty payments will be made under State law, if the court finds a State law waiver, and goes to the Federal citizens suit penalties only if the court fails to find a waiver under State law.

So as a result, the Sixth Circuit did not need to reach the citizens suit issue with respect to the Clean Water Act.

Now–

William H. Rehnquist:

Do you agree, Mr. Van Kley, that penalties under… is it under 1365, the citizens suit, are paid to the United States?

Jack A. Van Kley:

–Yes, Your Honor, we do agree.

William H. Rehnquist:

Then doesn’t it seem odd that the United States would be sued and its penalty would be paid to the United States?

Jack A. Van Kley:

No, Your Honor.

The main purpose of a civil penalty is its deterrent effect.

The deterrent effect from such a penalty comes from twofold… first of all, under some types of actions, the money would be taken out of the DOE accounts, out of the DOE funds, and paid to another account that DOE cannot draw on.

In other words, DOE loses the use of the money it has strived so carefully to get from Congress.

Secondly, perhaps the most important deterrent from a civil penalty is the public stigma, if you will, that is attached to paying a penalty for violating the law.

And, in fact, with respect to Federal agencies, that is the most effective deterrent.

A Federal agency does not want to draw the attention of Congress and the public to it, and basically–

William H. Rehnquist:

Is there any indication that Congress realized that it was imposing sanctions on the United States which would be paid to the United States?

Jack A. Van Kley:

–No, there is no indication either in the statute or the legislative history in which Congress discussed where the money is going to go.

Antonin Scalia:

Mr. Van Kley, you know, if the main point is the embarrassment of the Federal agency, I’m really not sure that most of the administrators I know are terribly embarrassable people.

But if that is the big problem, that can be done without paying any money.

I mean, just the entry… the Government concedes that they’re suable, and that an order can be entered saying you have broken the law.

Stop breaking the law.

Now, that demonstrates the agency’s been breaking the law.

Why isn’t that embarrassment enough?

Jack A. Van Kley:

Well, Justice Scalia–

Antonin Scalia:

You think it adds to that to say moreover, you’re going to have to switch money from one account to another just to embarrass you?

I don’t think that’s going to make any difference at all.

Jack A. Van Kley:

–Oh, it does, Your Honor.

It makes a dramatic difference.

Antonin Scalia:

From the standpoint of embarrassment?

Jack A. Van Kley:

From the standpoint of the stigma of being penalized.

It does, indeed, make a very big difference.

Because the fact that they’ve paid this penalty calls Congress’ attention, including in the appropriation process, where they might have to re-fund the money drawn by that penalty, or re-fund the money drawn from the judgment fund, that very definitely calls attention to the public agency… to the Federal agency by the public and by Congress.

In fact, Your Honor, we have had cases where Federal agencies have been willing to pay us money simply if they don’t call it a civil penalty, because of the embarrassment factor.

And, in fact, Your Honor, we also have to go back to can Congress’s statements about civil penalties in the 1972 Clean Water Act, where Congress acknowledged that although injunctive relief was available, the Act was not working in part because there were no penalties for noncompliance.

And in light of that overriding purpose from Congress, even Congress realized that injunctive relief alone was not adequate to do the job.

Jack A. Van Kley:

And that is true with Federal agencies as well.

David H. Souter:

Mr. Van Kley, I understood you to say a moment ago that the term civil penalties is not normally used to include contempt sanctions and so on.

Isn’t that, however, exactly the sense in which it’s used in 1323, because the phrase that we’re concerned with here, the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or Federal court to enforce an order of the process of such court, clearly, when they speak of civil penalty, they are including a contempt sanction within that term, as used here.

Isn’t that correct?

Jack A. Van Kley:

They’re including only contempt sanctions for State and local courts in that particular section.

There are other contempt sanctions–

David H. Souter:

Well, that’s the section I understood you to be relying on a moment ago.

Jack A. Van Kley:

–Not with respect to contempt sanctions under Federal law, Your Honor.

The contempt sanctions under Federal law–

David H. Souter:

No, but I… maybe I misunderstood your argument.

I thought your argument was, in effect, that civil penalties for which the United States would be liable would… is a term that simply would not normally be used to refer to a contempt sanction, and hence, it was more probable that it referred to something other than a contempt sanction.

And my only point is here, as the term is used here, it clearly does include a contempt sanction if it’s imposed by a State court.

And therefore, we have to say that the term as used here does include contempt sanctions, which therefore weakens your argument that it must refer to something else when it’s referring to a civil penalty paid by the U.S. Isn’t that a fair response to what you said?

Jack A. Van Kley:

–No, Your Honor.

The sanctions that are in the latter half of the sentence which you’ve been referring to–

David H. Souter:

Well, your entire… I apologize for interrupting you.

You’re entirely right about half the sentence.

But the term is used in both the earlier reference and the later reference.

And my only point is the term has to include, as it is used there, a contempt sanction.

And that is correct, isn’t it?

Jack A. Van Kley:

–No, Your Honor, it is not correct.

The words used there do not include Federal contempt sanctions.

David H. Souter:

Well, you–

Jack A. Van Kley:

Those are covered by the earlier part of the section, however.

David H. Souter:

–Then are, are you… are you, in effect saying that the term civil penalties is not also modified… is not modified not only by… start that again.

Are you saying that the term civil penalties is modified by, arising under Federal law, but is not modified by, imposed by a State or local court to enforce an order?

Jack A. Van Kley:

That’s correct.

David H. Souter:

It’s a very strange reading.

That’s a very strange reading of that sentence.

Well, what is the alternative meaning?

Jack A. Van Kley:

Well, the way the sentence is structured, Your Honor, there is no alternative meaning.

Byron R. White:

There is no alternative meaning?

Jack A. Van Kley:

No, the–

David H. Souter:

Well, could you then have simply excised from the sentence the phrase, arising under Federal law, and simply say the United States shall be liable only for those… strike that.

The United States shall be liable only for, imposed by a State or local court?

That’s the implication of what you’re saying.

And that would make no sense at all.

Jack A. Van Kley:

–No, Your Honor, perhaps I–

David H. Souter:

It’s got to be… it’s got to refer to, to both of those… both of those modifiers have got to refer to penalties.

Jack A. Van Kley:

–No, Your Honor, the way the sentence is structured, it states first that the Federal Government is subject to all civil penalties rising under Federal law.

And then it also says–

William H. Rehnquist:

Well, it doesn’t say that.

Now, you’re… it says the United States shall be liable only for those penalties arising under Federal law.

Jack A. Van Kley:

–Correct, Your Honor.

William H. Rehnquist:

Well, that is not what you said.

Jack A. Van Kley:

Okay, I misstated, Your Honor.

William H. Rehnquist:

Continue with your answer to Justice Souter.

Jack A. Van Kley:

Yes, thank you, Your Honor.

The second part of the sentence, paraphrased, means the Federal Government shall be liable for sanctions imposed by State and local courts.

David H. Souter:

And those sanctions are described, are denominated civil penalties.

Jack A. Van Kley:

No, Your Honor, they are not.

Because it… they are donated sanctions, sanctions.

David H. Souter:

We’ll have to agree to disagree.

I seem to insist on finding the need for a noun somewhere, and you don’t.

[Laughter]

Jack A. Van Kley:

The noun, Your Honor, is the word–

Byron R. White:

Well, Mr. Van Kley… that just doesn’t make any sense.

Jack A. Van Kley:

–The… the sentence that we’ve been describing, I think, can be, can be explained as to its intent by looking at the… how the State programs, the State civil penalty programs work.

We’ve developed in our brief that State law programs operate in lieu of and on behalf of the Federal Government with respect to the civil penalties that are assessed under those programs.

Notably, the United States EPA refers to enforcement mechanisms such as civil penalties as the requirements of State programs.

Jack A. Van Kley:

But it does not refer to State contempt sanctions as part of that program.

So that is why it was necessary in the second part of that sentence to separately refer to the State and local court contempt sanctions.

One thing that has to be emphasized with respect to the State law programs is that EPA has basically been told to keep its hands off of enforcement, as long as the State is implementing its approved program.

Now, in fact, USEPA has to give 30 days notice before the State, and allow the State to enforce… take advantage of the situation and try to enforce first, before the Federal Government can even act.

And the Congress has made it very clear that USEPA’s enforcement actions to get civil penalties and other enforcement are to be the unusual exception; that the States are primarily entrusted with the function of enforcing this statute.

Therefore, it doesn’t make much sense to try to limit the statement made in this section to only those civil penalties that have been assessed pursuant to the citizens suit provision.

There will be very little enforcement at all if that occurs.

And, in fact, if the State does not enforce, that is grounds for USEPA to revoke its program.

So the option is not even left open for the State to allow EPA to take all the enforcement against the many Federal facilities that exist in this country.

The way the Congress has set this statute up precludes that interpretation.

Byron R. White:

Well, are you… are you saying then, that the… that the sanctions assessed under State law really should be treated as arising under Federal law?

Jack A. Van Kley:

If they are part of the Federally approved program that acts in lieu of USEPA’s program, that is the case, Your Honor.

Byron R. White:

So you wouldn’t just be looking to one of these sections that we’ve just been looking at.

You would look at State law?

Jack A. Van Kley:

It is State law that implements the Federal program.

That is the case, Your Honor.

Byron R. White:

And a sanction imposed by a State law that’s implementing the Federal act or implementing the program that’s been approved, that would arise under Federal law?

Jack A. Van Kley:

That’s correct, Your Honor.

Yes, the phrase, arising under, taking its normal textual meaning, refers to originate or spring out of, result from.

And even though these… even though these penalties have been enacted in the State law, that State law is passed directly as a response to the Federal Clean Water Act to implement that program in response to that Federal Clean Water Act.

Antonin Scalia:

And then all of those suits to recover those State penalties can be brought in Federal court, because they arise under the laws of the United States.

Jack A. Van Kley:

That depends on how far this Court goes with respect to its decision, Your Honor.

Antonin Scalia:

You mean that’s thinkable?

Jack A. Van Kley:

That is thinkable only if the Court draws on 1331 case law for its decision.

As we stated in our brief, even this Court, in the Verlinden case, for example, has acknowledged that the phrase arising under means different things in different statutes, depending on the purpose and intent of that statute.

For example, the arising under clause in article III of the Constitution has been interpreted differently than the 1331 arising under clause.

John Paul Stevens:

Yes, but neither of those refers to penalties arising under.

This is a cause of action arising under.

Jack A. Van Kley:

Exactly right, Your Honor.

Thus–

John Paul Stevens:

As I understand, your… what you’re saying is the penalties, even though described in an Ohio statute, arise under Federal law because the statute was enacted pursuant to the Federal program and has been approved by the administrator.

Jack A. Van Kley:

–Right, Your Honor.

John Paul Stevens:

That’s… and if that’s true, I don’t know how you answered Justice Scalia.

Because then it seems to me any suit under the State program arises under Federal law.

Jack A. Van Kley:

No, Your Honor.

The Court has to look at the different purpose of the arising under clause in the Clean Water Act.

That doesn’t necessarily mean that it has to be interpreted in the same fashion.

John Paul Stevens:

Well, the purpose here, as your opponent has rather forcefully argued, is to limit the liability of the United States as liable only for those civil penalties.

Jack A. Van Kley:

Yes, Your Honor.

John Paul Stevens:

And so it’s rather strange to say you will limit these.

But if we prove it under… well, anyway, under a State program, it still arises under Federal law.

That’s certainly not a natural reading of that word.

Jack A. Van Kley:

Your Honor, the Department of Energy tries to use case law from 1331 by analogy to interpret the arising under clause–

John Paul Stevens:

I’m not even looking at any cases.

I’m just… like my colleagues on the right here, I just agree… and we just looked at this language.

It seems to me that when you talk about arising under Federal law, that’s a rather odd way to say arising under State laws that have been enacted pursuant to a Federal program, or approved by a Federal agency, which is what you’re reading as.

But you’re… you rely entirely on this argument, and you don’t rely on the citizens suit provisions.

Is that right?

Jack A. Van Kley:

–No, we rely on the citizens suit provision for Federal law, for Federal penalties.

John Paul Stevens:

You… just to get a different scale of penalties, is that the reason for the difference?

Jack A. Van Kley:

No, the difference is simply alternative forms of relief.

Byron R. White:

Do you… you think you’re entitled to collect this money on several different independent grounds, like–

Jack A. Van Kley:

That’s correct, Your Honor, several independent grounds, in the alternative.

In fact, we… the stipulation of settlement did not assess penalties under Federal law unless we could not get them under State law.

So we did not try to collect twice.

John Paul Stevens:

–But may I just put one… there are two rather separate theories under the Clean Water Act.

One is the one you’ve argued almost entirely now.

The second is the citizens suit theory that I debated with your opponent.

Is there a difference in the outcome of the litigation, depending on which theory one might buy?

Jack A. Van Kley:

Yes, there… the only difference, Your Honor, is where the money goes, whether the money goes to the State treasury or the Federal Government.

John Paul Stevens:

I see, so that’s why you’re not arguing the citizens suit provision very vigorously.

Jack A. Van Kley:

There’s two reasons.

That’s one reason, because we think the deterrence is more effective if the money goes to State law, State court.

And you don’t get the money.

I understand that.

[Laughter]

Jack A. Van Kley:

Well, Your Honor, actually, ah, there’s a lot easier ways to earn $250,000 than to file a suit like this.

We definitely do not bring these suits as fundraising mechanisms.

[Laughter]

John Paul Stevens:

No, but I understand now why you’ve concentrated your argument on this, rather than the other.

Jack A. Van Kley:

Yeah, and the second reason–

John Paul Stevens:

It seems to me if one looks at plain language you’ve got a much stronger argument on the other.

I don’t know whether you’re right or not, but surely the waiver is much more clear in the citizens suit–

–Well, I thought maybe you wanted to enforce this law and sue under the citizens suit provision and recover those Federal penalties because then you’re going to punish the agency by taking their money away and giving it to somebody else in the Federal Government.

Jack A. Van Kley:

–Either way, Your Honor, it is punishment.

We think the punishment’s greater under State law, frankly.

But we believe there is punishment both ways.

And certainly… certainly we believe that’s a laudable purpose and that deterrent is the only way to enforce these statutes.

It’s the only way these statutes are going to work.

Antonin Scalia:

The State penalties are higher, too, aren’t they, as I recollect it?

Jack A. Van Kley:

No, they’re lower, Your Honor.

Antonin Scalia:

Pardon?

Jack A. Van Kley:

They’re lower.

Antonin Scalia:

They’re lower.

Jack A. Van Kley:

Yes.

Antonin Scalia:

They could be higher, I suppose.

Jack A. Van Kley:

They could be higher as long as they are consistent with Federal law.

Because USEPA approves those penalties.

I see.

Jack A. Van Kley:

And, in fact, that’s one more reason why we believe that they do arise under Federal law, is because they are part of a program which USEPA has labelled requirements of the State enforcement programs.

Jack A. Van Kley:

And they are approved as part of the program.

And they operate in lieu of Federal law.

And as I mentioned before, given the fact that USEPA is not supposed to be enforcing the statute unless the State falls down, it is much more likely that the Federal Government wanted the State to take the lead against the Federal agencies.

I would like to just briefly and quickly distinguish the 1331 case law, although as I mentioned before, we do not rely on this case law.

We believe that 1331 arising under case law should not be used to interpret arising under in the Clean Water Act because of the different purposes of those statutes.

However, under the Machinists case, the Department of Energy has made the argument that it is State law that… in our case it is State law that is providing the penalties, and therefore, even under 1331 it can’t arise under Federal law.

Well, Machinists tells us differently.

Because in that case, it was a private contract, implementing the purposes of Federal law that was deemed to be arising under Federal law.

So the fact that the penalty actually is passed as a State law, does not… even under Federal question jurisdiction… detract from the fact that it arises under Federal law.

Just one quick point about the administrator being sued under the Clean Water Act citizens suit provisions that I’d like to respond to.

The administrator can be sued under that section if, for example, an EPA building would pollute the environment.

And it does make sense in the light of the fact that EPA, indeed, can be a Federal agency violating the law just like any other agency.

EPA has to obey the law as well.

With respect to the Ault case, we believe that the case is dramatically different than the one here.

Although the waiver in the statutory text was extremely broad in that case, the statutory text allowed the President to pass an order… enact an order which limited the scope of that general waiver.

And that’s exactly what happened in that case.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Van Kley.

Mr. Feldman, you have 4 minutes remaining.

James A. Feldman:

Thank you, Mr. Chief Justice.

I’d just like to make two points, one specific, and one more general.

The specific point is, as to the arising under Federal law clause that I discussed earlier, I think it should be kept in mind that that provision was added by a conference committee.

It wasn’t in either the Senate or House versions of the bill when it was first enacted.

The legislative history you can find in our brief.

There’s no legislative history or no commentary on what that provision might have meant, or what the conferees thought it meant.

And I think that that adds perhaps some plausibility to the view that they wanted to make sure that whatever else had already been done, or had already been waived in the statute, they wanted to be sure that in any event, they wanted to cancel it if it didn’t arise under Federal law, or it would pose a State or a… order a process of a State or local court.

I think the history kind of supports that inference.

The more general point I wanted to make was that the case really is about whether there is a clear and unambiguous waiver of sovereign immunity in the statutes at issue here.

And–

Byron R. White:

For… of money liability?

James A. Feldman:

–Yes, of liability for civil penalties of the sort that the State seeks here.

I don’t… I think in light of going running through these statutes, and seeing the difficulties of interpreting them, the best you could say is that it’s ambiguous.

Now, Congress, at this very… well, not this very moment, they’re in recess… but they’ve recently enacted amendments to the RCRA provision that’s also at issue in this suit that would clearly and unambiguously waive sovereign immunity from civil penalties.

Antonin Scalia:

They make it clear.

James A. Feldman:

I beg your pardon.

Antonin Scalia:

Those are clear.

James A. Feldman:

Yes, and as I’ve… at least the provisions, as I have seen the most recent versions, they were passed in different versions by the House and the Senate.

Antonin Scalia:

Have they been through a conference committee yet?

James A. Feldman:

Not yet.

[Laughter]

David H. Souter:

So you’re not promising that you won’t be back.

[Laughter]

We don’t know what some other Solicitor General will say about that.

James A. Feldman:

No, we don’t, if that becomes law.

But the point I’d like to make is one function of the rule requiring waivers to be clear and unambiguous, especially when there’s penal measures of this sort at issue, is to require Congress to go and look at the specific problems, and the specific issues that arise concerning Federal… concerning civil penalties against Federal facilities.

And that’s one of the functions of the rule, and that’s one of the real reasons the rule makes a great deal of sense applying in a case like this.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Feldman.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.