STATEMENT
The Clean Air Act, 42 U.S.C. 7401 et seq., provides two basic avenues
to obtain judicial relief relating to EPA's implementation of the Act.
Section 307(b)(1) authorizes the courts of appeals to review -- and if
necessary reverse -- various actions of the Administrator. 42 U.S.C.
7607(b)(1). Section 304(a)(2), by contrast, authorizes the district
courts to compel agency action where "there is alleged a failure of the
Administrator to perform any act or duty under this chapter which is not
discretionary with the Administrator." 42 U.S.C. 7604(a)(2). In this
case, respondents commenced an action against the Administrator under
Section 307 of the Clean Air Act challenging his approval of the State
of Arizona's revisions to its state implementation plan. The court of
appeals held that the Administrator's action was, in certain respects,
arbitrary and capricious, and it reversed the Administrator's approval.
The court of appeals also went one step further and ordered the
Administrator to promulgate a "federal implementation plan" -- to
replace the disapproved state plan -- within six months. The question
presented is whether the court of appeals has authority to impose that
requirement, which seriously impairs the Administrator's ability to
carry out his responsibilities under the Act.
1. The Clean Air Act creates a comprehensive national program for
combatting pollution. The basic structure of the present Act was
established by the Clean Air Act Amendments of 1970, Pub. L. No. 91-604,
84 Stat. 1676, and is set out in Sections 109 and 110 of the present
Act. Congress charged the Administrator of EPA with developing
"national * * * ambient air quality standards" (NAAQS). Section 109(a),
42 U.S.C. 7409(a). Congress then required each State to develop and
submit to EPA, within nine months after promulgation of the NAAQS, a
state implementation plan (SIP) to achieve and maintain the NAAQS within
the State. Section 110(a)(1)(A), 42 U.S.C. 7410(a)(1)(A). The
Administrator was required to determine whether each SIP met certain
statutory requirements, including the attainment of applicable "primary"
NAAQS, as "expeditiously as practicable" but generally not later than
three years from the date of approval of the SIP. Section 110(a)(2), 42
U.S.C. 7410(a)(2). If a State failed to submit a SIP, or if the
Administrator determined that the SIP failed to meet the Clean Air Act's
requirements, the Administrator was empowered to promulgate his own plan
(a federal implementation plan or FIP) for the State. Section
110(c)(1), 42 U.S.C. 7410(c)(1). See generally General Motors Corp. v.
United States, 110 S. Ct. 2528, 2530 (1990).
In 1977, Congress amended the Clean Air Act to respond, in large
part, to the States' widespread failure to meet the attainment dates of
the 1970 Amendments. Clean Air Act Amendments of 1977, Pub. L. No.
95-95, 91 Stat. 685. The 1977 Amendments retained much of the structure
of the 1970 Amendments, but they also created the concept of a
"nonattainment area" -- an area where air quality falls short of NAAQS.
Section 171, 42 U.S.C. 7501. The 1977 Amendments required each State
containing a nonattainment area to prepare and secure EPA approval of a
new SIP by July 1, 1979. Sections 110(a)(2)(I), 172(b), 42 U.S.C.
7410(a)(2)(I), 7502(b). Congress extended the deadline for attainment
of the primary NAAQS in a nonattainment area to December 31, 1982.
Section 172(a)(1), 42 U.S.C. 7502(a)(1). Further extensions were
permitted for "photochemical oxidants" (ozone) and carbon monoxide, but
only if the State demonstrated that attainment was not possible by 1982,
despite the implementation of all reasonably available measures, and
that attainment would be achieved "as expeditiously as practicable but
not later than December 31, 1987." Section 172(a)(2), 42 U.S.C.
7502(a)(2). The 1977 Amendments retained the provisions requiring the
Administrator to promulgate a FIP if the State failed to submit an
adequate SIP. See Section 110(c)(1), 42 U.S.C. 7410(c)(1). See
generally General Motors, 110 S. Ct. at 2530.
As we have noted, the Clean Air Act provides aggrieved persons with
two forms of judicial relief. First, Section 307(b)(1) authorizes a
court of appeals to review, and if necessary reverse, various actions of
the Administrator, including "the Administrator's action in approving or
promulgating any implementation plan" for achieving the Act's ambient
air quality standards. 42 U.S.C. 7607(b)(1). See also 42 U.S.C.
7607(d). Section 307(e) states that "(n)othing in this chapter shall be
construed to authorize judicial review of regulations or orders of the
Administrator under this chapter, except as provided in this section."
42 U.S.C. 7607(e). Second, Section 304(a)(2) provides that a person may
commence a civil action in a district court against the Administrator of
EPA where "there is alleged a failure of the Administrator to perform
any act or duty under this chapter which is not discretionary with the
Administrator." 42 U.S.C. 7604(a)(2). The district court has
jurisdiction "to order the Administrator to perform such act or duty, as
the case may be." 42 U.S.C. 7604(a).
2. This case arises from a challenge by respondents -- a group of
Arizona citizens -- to the Administrator's approval of Arizona's state
implementation plan for portions of Maricopa and Pima Counties. In
1978, EPA designated parts of those counties (which embrace,
respectively, Phoenix and Tucson) as nonattainment areas for carbon
monoxide. In 1979, Arizona submitted SIP revisions for both areas and
applied for an extension of the 1982 attainment deadline to 1987. In
1982, the Administrator gave conditional approval to Arizona's SIP
revisions. Three years later, respondents filed an action against the
Administrator in district court, under Section 304(a)(2) of the Clean
Air Act, to obtain an order declaring the Arizona SIP revisions
inadequate and requiring EPA to perform its "non-discretionary" duty to
prepare a FIP for Maricopa and Pima Counties (McCarthy v. Thomas, No.
85-CV-344 (D. Ariz.) (complaint filed Apr. 8, 1985)). See App., infra,
3a. /1/
Upon the agreement of the parties, the district court entered an
order staying the suit until January 1, 1987. See McCarthy v. Thomas,
supra (order filed Feb. 19, 1986). In late 1986, the Administrator
denied Arizona's application for a deadline extension, revoked its 1982
conditional approval, and ultimately did not approve Arizona's
subsequent SIP revisions. See App., infra, 3a. /2/ The district court
subsequently ordered the Administrator to prepare a FIP no later than
six months after September 30, 1987, unless, before that date, Arizona
submitted and the Administrator approved adequate SIP revisions.
McCarthy v. Thomas, supra (order filed Aug. 11, 1987). The court later
extended that deadline to August 10, 1988. McCarthy v. Thomas, supra
(order filed Apr. 19, 1988). Arizona submitted SIP revisions and the
Administrator ultimately approved them on August 10, 1988. See App.,
infra, 3a.
Respondents then brought the present action in the court of appeals,
under Section 307(b)(1) of the Clean Air Act, challenging the
Administrator's approval of Arizona's SIP revisions. The court of
appeals granted the petition for review and vacated the Administrator's
approval. The court first overturned the Administrator's determination
that the nonattainment areas are entitled to take three years, from the
date of SIP approval, to come into compliance. The court held that,
where a state has failed to meet Congress's 1982 attainment deadline,
the SIP must provide for attainment "as soon as possible." App., infra,
4a-8a. The court next rejected, as "arbitrary and capricious," the
Administrator's failure to require adoption of a number of air pollution
control measures that, in the court's view, EPA guidance documents
presume are "reasonably available." The court stated that under EPA's
guidelines Arizona must bear the burden of demonstrating that the
measures would not accelerate the projected attainment date. Id. at
8a-11a. The court also rejected, as arbitrary and capricious, the
Administrator's determination that the Maricopa County SIP revisions
contain adequate "contingency" and "conformity" provisions. Id. at
11a-13a. The court denied relief on respondents' other challenges to
the SIP revisions. Id. at 13a-16a. In the concluding paragraph of its
opinion, the court stated:
We vacate the EPA's approvals of Maricopa and Pima counties' Clean
Air Act implementation plans. We direct the EPA to disapprove
these plans and to promulgate federal implementation plans
consistent with this opinion within six months.
Id. at 16a.
The government filed a petition for rehearing and a suggestion of
rehearing en banc limited to the question of the court of appeals'
relief. /3/ The government urged that the court of appeals lacked
authority to order EPA to promulgate a FIP and that the six-month
deadline for FIP promulgation was inconsistent with the statute and
unreasonable. On May 16, 1990, the court of appeals denied the petition
without opinion. App., infra, 17a.
REASONS FOR GRANTING THE PETITION
As this Court recently explained, the Clean Air Act provides
specific, carefully crafted remedies for agency inaction, and the courts
do not have license to supplant the statutory remedies with judicially
created ones. See General Motors Corp. v. United States, 110 S. Ct.
2528, 2533-2534 (1990). That reasoning applies with equal force in this
case. Section 307 of the Clean Air Act authorizes the court of appeals
to review and, if necessary, reverse the Administrator's approval of
Arizona's SIP revisions. The court had no authority, however, to take
the further step of ordering the Administrator to promulgate a FIP
within a specified time period. This Court's decision in General Motors
specifically identified Section 304 of the Clean Air Act, which
authorizes the district courts to compel agency action, as the
appropriate source of judicial relief in the event that the
Administrator fails to perform a non-discretionary duty. The court of
appeals did not have the benefit of this Court's General Motors decision
at the time it entered its decision. We therefore suggest that this
Court grant our petition, vacate the court of appeals' judgment insofar
as it orders the Administrator to prepare a FIP within a specified time
period, and remand the case for further consideration in light of that
decision. In the alternative, we urge this Court to reverse summarily
the court of appeals' judgment insofar as it orders inappropriate
relief.
1. In General Motors, the petitioners argued that EPA's failure to
approve a State's SIP revisions in a timely manner barred EPA from
enforcing the provisions of an existing SIP. This Court rejected that
contention, holding that Congress did not intend to bar EPA enforcement
suits in those circumstances and that the courts have no authority to
impose such a bar. 110 S. Ct. at 2533-2534. The Court explained that
the Clean Air Act provides "statutory remedies * * * when EPA delays
action on a SIP revision" and that courts accordingly should not create
other remedies in their stead. Id. at 2534. The Court specifically
stated that "the statutory remedies for EPA inaction include a suit to
compel agency action under Section 304(a)(2)." Id. at 2534 n.4. As we
have explained, Section 304 authorizes a district court to order the
Administrator to perform non-discretionary duties. See 42 U.S.C. 7604.
The Court's decision in General Motors arose in the context of an EPA
enforcement suit, brought under Section 113(b) of the Act (42 U.S.C.
7413(b)), against a pollution source. The Court's reasoning, however,
is equally applicable in this case. Here, respondents brought a Section
307 suit seeking judicial review of the Administrator's approval of
Arizona's SIP revisions. Section 307 authorizes a court of appeals to
review, and, if necessary, reverse, the Administrator's approval. Once
the court of appeals reversed the Administrator's action, however, that
court's reviewing function was at an end. The court had no authority to
require EPA to promulgate a FIP within a specified time period. Section
110(c) sets forth the Administrator's obligations in the event a State's
proposed SIP revisions are rejected. See 42 U.S.C. 7410(c). If the
Administrator fails to fulfill his statutory obligations, respondents
have a remedy. As General Motors indicates, they may bring a Section
304 suit to compel the Administrator to perform a non-discretionary
duty.
Indeed, the principle recognized in General Motors applies with even
greater force in this case. As an initial matter, the court of appeals
was not entitled to presume that the Administrator would fail to
promulgate a FIP in a timely manner. See FCC v. Schreiber, 381 U.S.
279, 296 (1965) (administrative agencies are entitled to the presumption
"that they will act properly and according to law"). See also, e.g.,
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971).
Additionally, Congress has not given the courts of appeals jurisdiction
to provide a remedy for the Administrator's failure to perform a
non-discretionary duty; to the contrary, Congress's remedy, set forth
in Section 304, lies strictly in the district courts. Moreover, the
Clean Air Act's carefully crafted provisions for judicial oversight are
themselves drawn from settled principles of administrative law.
This Court has consistently recognized that once a reviewing court
finds an agency's action invalid and sets it aside, the court's
reviewing function is at an end and the matter returns to the agency for
further appropriate agency action. The Court stated the "guiding
principle" nearly 40 years ago:
(T)he function of the reviewing court ends when an error of law is
laid bare. At that point the matter once more goes to the
(agency) for reconsideration.
FPC v. Idaho Power Co., 344 U.S. 17, 20 (1952). /4/ The Clean Air Act's
judicial review provisions employ this principle. Section 307 empowers
the reviewing court -- in this case the court of appeals -- to review
and, if necessary, reverse agency action, but it does not give the court
power to direct the agency's subsequent activities on remand. As the
Court has recognized, an agency's task on remand remains "infused with
judgment and discretion, requiring the '"accommodation of conflicting
policies that were committed to the agency's care."'" Department of the
Treasury v. FLRA, 110 S. Ct. 1623, 1629 (1990). "It is not a task
(courts) ought to undertake on the agency's behalf in reviewing its
orders." Id. at 1630. See FCC v. Pottsville Broadcasting Co., 309 U.S.
134, 144 (1940).
The court of appeals' requirement that the Administrator develop a
federal implementation plan within six months, like the enforcement bar
in General Motors, was apparently intended to motivate prompt agency
action. /5/ The Clean Air Act contains other provisions, however, to
ensure that the Administrator acts with appropriate dispatch. As the
Court noted in General Motors, Section 304 authorizes interested
citizens to bring suit against the Administrator "where there is alleged
a failure of the Administrator to perform any act or duty under this
chapter which is not discretionary with the Administrator." 42 U.S.C.
7604(a)(2). See 110 S. Ct. at 2534 & n.4. Significantly, however, such
suits must be brought in a district court, which -- unlike a court of
appeals -- has the factfinding capabilities necessary to investigate the
reasons for the agency's inaction, to determine an appropriate remedy
and its timing, and to modify the remedy to the extent that changed
circumstances dictate. Congress was careful to give the courts of
appeals power over those matters that require judicial review of
completed agency action, while conferring authority on the district
courts as to those matters requiring the exercise of factfinding and
enforcement powers. The court of appeals' decision in this case, which
would require that court to assume the factfinding role of a district
judge, upsets Congress's carefully drawn distinction. /6/
2. Although the legal objection that we present in this petition is
narrow, it raises a matter of great practical importance. The court of
appeals' requirement that the Administrator promulgate a FIP within a
specified time period places severe limitations on the Administrator's
ability to exercise "judgment and discretion" (FLRA, 110 S. Ct. at 1629)
in formulating a legally adequate FIP. The court of appeals' six-month
deadline is not required by statute and was formulated without regard to
(or even significant inquiry into) what the development of a FIP
entails. The Administrator is moving resolutely to meet the court of
appeals' six-month deadline. That deadline, however, has required a
redirection of EPA's limited resources during a period of serious
budgetary constraints and has hampered the Administrator's ability to
exercise considered judgment in a sensitive matter of joint
federal-state concern. /7/
The court of appeals' order not only curtails the Administrator's
exercise of discretion, it eliminates or hampers the ability of other
interested parties to exercise their statutory rights. For example,
Section 110(c)(1) of the Clean Air Act provides that a State may avoid
the Administrator's imposition of a FIP if, prior to its promulgation,
"such State has adopted and submitted a plan (or revision) which the
Administrator determines to be in accordance with the requirements of
his section." Section 110(c)(1), 42 U.S.C. 7410(c)(1). The court of
appeals' order in this case, however, prevents Arizona from exercising
that important right and limits the State to "submit(ting) proposals to
the EPA for its consideration in developing the plans." App., infra, 16a
n.1. In addition, EPA expects that Arizona citizens, who will be
directly affected by the FIP's pollution control measures, will wish to
participate through the public commenting process in the preparation of
the FIP. The court of appeals' deadline, however, will impose serious
time constraints on the Administrator's ability to analyze public
comments in formulating the final rule. See note 6, supra. Indeed, it
is not uncommon, and sometimes necessary, for an agency to issue a
revised proposed rule in response to public comments. See, e.g., United
States v. National Steel Corp., 767 F.2d 1176, 1181 (6th Cir. 1985).
See also Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506,
546-547 (D.C. Cir. 1983). The court of appeals' timetable intrusively
forecloses that option.
As this Court observed, there is a special need to adhere to
Congress's dictates where "important public rights are at stake."
General Motors, 110 S. Ct. at 2534. In this case, the Clean Air Act
specifies an important but limited role for the court of appeals,
namely, to review agency action. The court of appeals ignored the Act's
limitations and dictated the Administrator's actions on remand. This
Court's recent decision in General Motors indicates that the court of
appeals acted improperly. We submit, however, that the court of appeals
should be given an opportunity to reconsider its decision before this
Court conducts plenary review. The court of appeals' decision was
issued prior to this Court's guidance in General Motors, and the court's
opinion provided no reasoning or justification for its decision or for
its departure from other established precedent. We suggest,
accordingly, that this aspect of the court of appeals' judgment should
be vacated and the case remanded to the court of appeals for
reconsideration in light of General Motors.
In the alternative, it would be appropriate for this Court to reverse
summarily the court of appeals' judgment insofar as it dictates the
Administrator's actions on remand. The court's presumption that the
Administrator would not act properly and according to law, and the
court's exercise of control over the Administrator's activities on
remand (including their scheduling), are flatly inconsistent with well
settled principles of administrative law. Moreover, the court of
appeals' actions will seriously hamper the Administrator's ability to
promulgate a FIP that satisfies the requirements of the Clean Air Act
while providing the State of Arizona, its citizens, and other affected
persons with an appropriate opportunity for public participation.
CONCLUSION
The petition for a writ of certiorari should be granted, the judgment
of the court of appeals vacated insofar as it orders the Administrator
to promulgate a FIP within a specified time period, and the case
remanded for further consideration in light of this Court's decision in
General Motors Corp. v. United States, 110 S. Ct. 2528 (1990). In the
alternative, the Court may wish to consider summary reversal of the
court of appeals' judgment insofar as it orders inappropriate relief.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor General
MICHAEL A. McCORD
DAVID W. ZUGSCHWERDT
Attorneys
E. DONALD ELLIOTT
General Counsel
ALAN ECKERT
Associate General Counsel
SARA SCHNEEBERG
Attorney Environmental Protection Agency
SEPTEMBER 1990
/1/ The court of appeals incorrectly suggested that respondents filed
their district court action at a later date. See App., infra, 3a.
/2/ See Arizona v. Thomas, 829 F.2d 834 (9th Cir. 1987); see also
Arizona v. Thomas, 824 F.2d 745 (9th Cir. 1987).
/3/ Similarly, in this Court, we do not seek review of the court of
appeals' determinations as to the adequacy of Arizona's SIP revisions.
/4/ See FTC v. Morton Salt Co., 334 U.S. 37, 55 (1948); FCC v.
Pottsville Broadcasting Co., 309 U.S. 134, 140-146 (1940). This Court
has repeatedly followed that principle. For example, the Court
concluded in FPC v. Transcontinental Gas Pipe Line Co., 423 U.S. 326
(1976), that a lower court, by ordering an agency to complete an
investigation within 30 days, had "overstepped the bounds of its
reviewing authority." Id. at 329-330, 331. The Court explained that
a reviewing court may not, after determining that additional
evidence is requisite for adequate review, proceed by dictating to
the agency the methods, procedures, and time dimension of the
needed inquiry and ordering the results to be reported to the
court without opportunity for further consideration on the basis
of the new evidence by the agency.
Id. at 333. See also, e.g., Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 524-525 (1978).
Similarly, when this Court recently held that the Federal Labor
Relations Authority erred in its application of certain provisions of
the Civil Service Reform Act, the Court refused to adopt a "permissible"
alternative interpretation because the agency had not considered the
interpretation "in the first instance." Department of the Treasury v.
FLRA, 110 S. Ct. 1623, 1629 (1990).
/5/ The court's concern is understandable. Arizona repeatedly has
failed to meet the Clean Air Act's deadlines for attainment of the
NAAQS. But Arizona is not alone. Indeed, the problem of continuing
nonattainment, now as in 1977, is an important legislative topic.
Congress is presently considering revisions to the Clean Air Act that
will address that matter. See S. 1630, 101st Cong., 2d Sess. (1990)
(The Clean Air Act Amendments of 1990).
/6/ The courts of appeals have repeatedly recognized the Clean Air
Act's bifurcated system for judicial oversight of the agency's
implementation of the Act. See Maine v. Thomas, 874 F.2d 883, 884 (1st
Cir. 1989); Environmental Defense Fund v. Thomas, 870 F.2d 892, 896 (2d
Cir. 1989); Sierra Club v. Thomas, 828 F.2d 783, 787 (D.C. Cir. 1987);
Indiana & Michigan Elec. Co. v. EPA, 733 F.2d 489, 490-491 (7th Cir.
1984). The Ninth Circuit has itself noted that the Act assigns separate
roles to the courts of appeals and the district courts. See Farmers
Union Central Exchange, Inc. v. Thomas, 881 F.2d 757, 760 (1989);
Abramowitz v. EPA, 832 F.2d 1071, 1075 (1987). See also Kamp v.
Hernandez, 752 F.2d 1444, 1454 (1985); Kennecott Copper Corp. v.
Costle, 572 F.2d 1349, 1353 (1978).
/7/ The court of appeals' mandate issued on May 25, 1990, and the
Administrator accordingly is under an obligation to complete the
promulgation of the FIP by November 26, 1990. The agency has conducted
new air quality modeling for the affected regions, which entails the use
of data on emissions and pollutant concentrations to predict
mathematically the effects of future pollution controls. The
Administrator intends to analyze the modeling results, determine
appropriate control measures and publish a notice of proposed rulemaking
on September 20, 1990. A public hearing will be held in October, and
the public comment period will close in early November. If the
government fails to secure relief from the court of appeals' order, the
Administrator will have a mere three weeks to analyze the public
comments, make appropriate revisions, and sign a final rule. See Rodway
v. Department of Agriculture, 514 F.2d 809, 817 (D.C. Cir. 1975) (noting
an agency's obligations to "respond in a reasoned manner to the comments
received, to explain how the agency resolved any significant problems
raised by the comments, and to show how that resolution led the agency
to the ultimate rule").
APPENDIX
CLARENCE E. PETEN, PETITIONER V. UNITED STATES OF AMERICA
No. 90-302
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The order of the Court of Military Appeals affirming petitioner's
conviction (Pet. App. 1a) is not yet officially reported. The opinion
of the Army Court of Military Review (Pet. App. 2a) is unreported.
JURISDICTION
The judgment of the Court of Military Appeals was entered on May 24,
1990. The petition for a writ of certiorari was filed on August 17,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1259(3).
QUESTION PRESENTED
Whether a warrantless, suspicionless urinalysis test, performed as
part of a military commander's inspection of his unit, violates the
Fourth Amendment.
STATEMENT
Petitioner, a member of the United States Army, was tried by a
general court-martial at Fort Rucker in Alabama. He was convicted of
being absent without leave (AWOL) for four days and wrongfully using
cocaine, in violation of Articles 86 and 112a of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. 886 and 912a. He was sentenced to
six months' imprisonment, a bad conduct discharge, and a reduction in
rank. The convening authority approved the findings and sentence. The
Army Court of Military Review affirmed the findings and sentence. Upon
discretionary review, the Court of Military Appeals summarily affirmed.
1. On February 24, 1988, petitioner and other members of his unit /1/
provided urine samples at Fort Rucker for a random urinalysis test. Tr.
61, 100, 131. Petitioner's commander ordered the testing, Tr. 148,
which involved taking urine samples from 340 soldiers. Tr. 141. On
February 29, the samples were tested for the presence of marijuana and
cocaine at the Fort Rucker Alcohol and Drug Abuse Division. Tr.
171-172. Petitioner's sample tested positive for the presence of the
cocaine metabolite, and it was sent to the Army Forensic Toxicology Drug
Laboratory at Fort Meade, Maryland, for further testing. Tr. 173; PXs
2, 3. Tests at the Fort Meade Laboratory confirmed the presence of the
cocaine metabolite in petitioner's urine. PX 3. Petitioner's urine
contained 16,000 nanograms (ng)/ml of cocaine metabolite -- far above
the 150 ng/ml cut-off level for a positive test result. Ibid.
2. On April 15, 1988, petitioner failed to report for duty and
remained absent without authority until April 19, 1988. PXs 4, 5.
3. The Army Court of Military Review affirmed in a per curiam
opinion. Pet. App. 2a. The Court of Military Appeals granted review on
the question whether the seizure of petitioner's urine and the admission
into evidence at trial of the urinalysis test result violated the Fourth
Amendment, and summarily affirmed. Pet. App. 1a; see Supplement to the
Petition for Grant of Review 1.
ARGUMENT
Citing Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402
(1989), and National Treasury Employees Union v. Von Raab, 109 S. Ct.
1384 (1989), petitioner contends that the taking and testing of his
urine, pursuant to the Army's drug testing program, /2/ violated the
Fourth Amendment. In particular, petitioner argues that the Army's drug
testing program is unconstitutional because the "Army uses urinalysis as
a law enforcement tool and routinely uses urinalysis results as the sole
basis to court-martial a soldier for wrongful drug use." Pet. 18. That
claim does not warrant review by this Court.
1. Petitioner has waived any claim regarding the admission of his
urine test result by failing to raise that issue at trial. Rule
311(d)(2), Mil. R. Evid., requires that an objection to the admission of
evidence seized from the accused must be made prior to his submission of
a plea, or else the objection is waived. Also, Mil. R. Evid. 313(b),
which specifically addresses inspections, including urinalysis testing,
provides that an inspection is not valid if its primary purpose is to
obtain evidence "for use in a trial by court-martial or in other
disciplinary proceedings." In this case, petitioner did not object to
the admission of his urine test result before entering his plea, Tr.
7-8, when the test result was offered at trial, Tr. 64, 66, 191, or at
any other time. Nor did petitioner claim that the urine testing was a
subterfuge for a test of his urine to be used at a court-martial or some
other disciplinary proceeding. /3/ Accordingly, petitioner has waived
his Fourth Amendment claim, and specifically has waived any claim that
the "inspection" was merely a pretext and that the taking and testing of
his urine were actually done for criminal investigative purposes, which
is the gravamen of his argument in this Court.
2. In any event, the decision below is correct. In Skinner, this
Court upheld against a Fourth Amendment challenge regulations providing
for the testing of railroad employees who violate certain safety rules.
After concluding that the Fourth Amendment applied to the regulations,
the Court began its analysis by noting that the principal concern of the
Fourth Amendment is the reasonableness of the search or seizure.
Skinner, 109 S. Ct. at 1414. Recognizing that ordinarily a warrant
issued upon probable cause is required for a search or seizure to be
reasonable, the Court noted that an exception to this rule exists when
"special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable." Ibid. In
assessing whether such special needs justified the railroad regulations,
the Court balanced the government's interest in testing against the
privacy interests of the employees. The Court found a strong
governmental interest in "regulating the conduct of railroad employees
to ensure safety," ibid., and noted that the purpose of the regulations
was to "prevent accidents and casualties in railroad operations that
result from impairment of employees by alcohol or drugs." Id. at 1415
(quoting 49 C.F.R. 219.1(a) (1987)). That "compelling" interest, the
Court concluded, outweighed the privacy interests of employees whose
expectations of privacy "are diminished by reason of their participation
in an industry that is regulated pervasively to ensure safety, a goal
dependent, in substantial part, on the health and fitness of covered
employees." 109 S. Ct. at 1418.
In Von Raab, the Court reached the same conclusion regarding
regulations providing for the testing of Customs Service employees
seeking transfer or promotion to positions having a direct involvement
in drug interdiction or requiring them to carry firearms. 109 S. Ct. at
1390. The Court held that the government had a compelling interest in
ensuring that "front-line interdiction personnel are physically fit, and
have unimpeachable integrity and judgment" and a similarly compelling
interest in protecting the public from employees who may use deadly
force. Id. at 1393. Those interests outweighed the privacy interests
of employees who "reasonably should expect effective inquiry into their
fitness and probity." Id. at 1394. The Court likened the privacy
expectations of such employees to the expectations of "those who join
our military or intelligence services (who) may not only be required to
give what in other contexts might be viewed an extraordinary assurances
of trustworthiness and probity, but also may expect intrusive inquiries
into their physical fitness for those special positions." Id. at
1393-1394.
The analysis in Skinner and Von Rabb makes it clear that the Army's
drug testing program does not violate the Fourth Amendment. The program
promotes the government's and public's compelling interest in ensuring
that soldiers are fit to perform their mission "to fight or be ready to
fight wars should the occasion arise." Toth v. Quarles, 350 U.S. 11, 17
(1955). As the Court of Military Appeals has recognized in many cases,
the unlawful use of drugs by servicemembers poses unique and serious
problems in the military. For example, in United States v. Trottier, 9
M.J. 337, 346 (C.M.A. 1980), the court stated that "(t)he need is
overwhelming to be prepared to field at a moment's notice a fighting
force of finely tuned, physically and mentally fit men and women -- and
satisfaction of that need is not compatible with indiscriminate use of
debilitating drugs." In United States v. Bickel, 30 M.J. 277, 282-283
(C.M.A. 1990), the court upheld the Army's drug testing program in light
of Skinner and Von Raab, and stated that:
(S)ervicemembers who are under the influence of drugs often have
the potential to do great harm to the military mission and to
national security -- as well as to other persons and their
property. Admittedly, a pilot or a tank operator usually will
have a greater potential for harm than a servicemember assigned to
a desk job. However, even a servicemember performing far away
from active military operations may be operating a computer which
processes information vital for those operations. Moreover, in
the event of an emergency, a servicemember with a very routine job
may be called on short notice to perform a more typically
"military" task; and his failure to be physically and mentally
ready to perform that task may jeopardize national security at the
hands of foreign enemies or terrorists.
Congress has expressed its concern about the dangers resulting from
the use of controlled substances by servicemembers. In Article 112a of
the UCMJ Congress has forbidden the use of controlled substances by
military personnel, even though the "use" of drugs is not proscribed by
the general federal law governing the possession and distribution of
controlled substances. In 1971, Congress directed the Service
Secretaries to establish procedures to identify, treat, and rehabilitate
drug and alcohol dependent persons in the Armed Forces. 10 U.S.C. 1090.
Most recently, Congress reaffirmed its mandate that recruits be tested
for drug and alcohol use and that those who test positive be processed
for separation. 10 U.S.C. 978. This legislative judgment reflects
appropriate concern about the adverse effect that drug use by
servicemembers poses to the "security, military fitness, or good order
and discipline of the unit." Mil. R. Evid. 313(b). /4/
The Army's drug testing program, which allows random unannounced
urinalysis testing of soldiers, serves the government's vital interest
in combating the "substantial threat (that drug abuse poses) to the
readiness and efficiency of our military forces." Committee for GI
Rights v. Callaway, 518 F.2d 466, 476 (D.C. Cir. 1975). It gives the
commander vital information regarding the fitness of his unit. The need
for such information is precisely the sort of "special need() beyond the
normal need for law enforcement" that justified the drug testing
programs at issue in Skinner and Von Raab. See Skinner, 109 S. Ct. at
1414. Drug testing has consistently been upheld on that ground. See
Committee for GI Rights v. Callaway, supra; United States v. Bickel,
supra; Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989); Murray v.
Haldeman, 16 M.J. 74 (C.M.A. 1983).
Contrary to petitioner's contention, Pet. 10-12, the Army's special
need for a drug testing program is not suspect on the ground that "the
Army routinely uses its unit urinalysis inspections to ferret out and
prosecute drug abusers." Pet. 11. In the first place, test results are
not routinely or frequently used in criminal prosecutions. It is quite
rare for a soldier to be criminally prosecuted following a positive test
result. In the first three quarters of 1989, for example, the Army
tested 718,845 urine samples as part of its drug testing program, and
16,407 samples tested positive for marijuana, cocaine, amphetamines, or
other controlled substances. /5/ During the same period, by
petitioner's count, 70 drug-use court-martial cases "were based solely
on a random unit urinalysis." Pet. 5 n.2. Thus, petitioner's contention
is based on a premise that is not true.
That random urinalysis test results are sometimes used in criminal
prosecutions does not call into question the administrative purpose of
the Army's program. The concern in a situation where test results are
used in criminal prosecutions, as this Court stated in Skinner, is that
an administrative testing program is a pretext for a criminal
investigative search. 109 S. Ct. at 1415 n.5. As noted, that
possibility is specifically mentioned in Mil. R. Evid. 313, the Rule
that addresses the admissibility of random urinalysis test results.
Servicemembers can claim that their test was a pretext, and military
courts have not hesitated so to find in appropriate situations. /6/
Petitioner's failure to assert such a claim at his trial is dispositive
of his argument in this Court. /7/
Petitioner grudgingly acknowledges, Pet. 18, 15, that the Army has an
interest in combatting drug abuse by soldiers. He contends, however,
that this interest does not outweigh the privacy interests of soldiers
who, as part of the drug testing program, are required to provide urine
samples under direct observation and without notice and who "as a
routine part of the program (are) not given the opportunity to question
a positive (test) result." Pet. 13.
Petitioner greatly overstates the privacy interests of soldiers.
Regarding the privacy interest, though petitioner may find it "most
demeaning and undignified," Pet. 18, to urinate in the presence of
another soldier, /8/ that requirement of the drug testing program is
virtually no different from other routine and necessary invasions of the
privacy of soldiers. Soldiers routinely are required to use communal
showers. Their barracks rooms are subject to unannounced, thorough
inspections. See United States v. Middleton, 10 M.J. 123, 127 (C.M.A.
1981) (noting that such inspections are "time-honored and go back to the
earliest days of the organized militia"). Soldiers are required to
undergo regular physical examinations. See 10 U.S.C. 1004; Army Reg.
40-501, Standards of Medical Fitness, para. 8-21c(7) (July 1, 1987).
Thus, the daily lives of soldiers lack the incidents of privacy that are
available to civilians, and soldiers are subject to discipline and
direction from superior officers that "would be unacceptable in a
civilian setting." Chappell v. Wallace, 462 U.S. 296, 300 (1983). In
short, a soldier's life is subject to pervasive regulation, and although
a civilian might find it demeaning to urinate in the presence of
another, for the soldier this requirement is an insignificant intrusion.
When balanced against the government's interest in a reliable drug
testing program aimed at ensuring that soldiers are physically and
mentally fit to perform their duties, this "invasion of privacy" is
minimal.
Petitioner's objection that the random urinalysis tests are
unannounced is beside the point. Regardless of whether the test is
announced or unannounced, the intrusion into a soldier's privacy is
identical, and the Fourth Amendment analysis is the same. Moreover,
unannounced, though not unexpected, /9/ tests are a necessary feature of
the Army's drug testing program. The program is aimed at assessing a
soldier's readiness to perform the Army's mission. Announced
inspections would not give a clear picture of a unit's or soldier's
readiness and, therefore, would frustrate the purpose of the program.
Cf. Skinner, 109 S. Ct. at 1416 (noting that the warrant requirement
does not apply in situations where obtaining a warrant frustrates the
purpose of the search).
Finally, petitioner's assertion that soldiers are "not given the
opportunity to question a positive (urinalysis test) result," Pet. 13,
is not true. The implementing regulations specifically allow a soldier
to obtain a retest of his sample either at an Army laboratory or "at a
forensic laboratory outside the DOD laboratory system at the service
member's own expense." AR 600-85 para. 10-8b, at 44. Furthermore,
either at an administrative hearing or at a court-martial, a soldier is
permitted to call expert witnesses to impugn the test result. Indeed,
the Court of Military Appeals has held that in a prosecution for the
wrongful use of drugs based on the results of a urinalysis test result,
the government must present expert testimony to explain the laboratory
test results. United States v. Murphy, 23 M.J. 310 (C.M.A. 1987);
United States v. Harper, 22 M.J. 157 (C.M.A. 1986).
In sum, the Army drug testing program is reasonable. The program
advances government interests of the highest order under circumstances
where the intrusion on individual expectations of privacy is minimal.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ALFRED F. ARQUILLA
Col., JAGC, USA
DANIEL J. DELL'ORTO
Lt. Col., JAGC, USA
JONATHAN F. POTTER
Capt., JAGC, USA
RANDY V. CARGILL
Capt., JAGC, USA Appellate Government Counsel Government Appellate
Division United States Army Legal Services Agency
SEPTEMBER 1990
/1/ Petitioner was assigned to the Aeromedical Center at Fort Rucker.
The Center is the hospital at Fort Rucker, the Army's aviation center.
Petitioner performed duties as a medical supply specialist. PX 7 para.
6. As such, he was responsible for supervising the receipt, stocking
and management of medical supplies (medical equipment, surgical
supplies, pharmaceuticals) at the hospital. See Army Reg. 611-201,
Enlisted Career Management Fields and Military Occupational Specialties,
para. 2-333 (Nov. 30, 1989) (describing the duties of a medical supply
specialist). In addition, petitioner was trained in the use of the
M-16A1 rifle, the standard rifle of the armed forces. PX 1 para. 9.
Like other soldiers, petitioner could be assigned duties involving use
of the M-16A1 and other weapons.
/2/ The program is governed by Army Reg. 600-85, Personnel-General:
Alcohol and Drug Abuse Prevention and Control Program (Dec. 1, 1981)
(rev. effective Nov. 21, 1988) (hereinafter AR 600-85). The regulation
provides detailed guidance for collection and testing of urine
specimens. Collection and handling of the samples is recorded on a
chain of custody document, see PX 2, and only samples that are confirmed
positive for the presence of a drug by a Department of Defense certified
laboratory using the gas chromatography/mass spectrometry test are
reported as positive. See PX 3. The regulation also details the Army's
drug and alcohol abuse rehabilitation program. Under the program,
soldiers can refer themselves, or can be referred by their commanders,
for treatment of drug or alcohol abuse. AR 600-85, chs. 3 and 4, at 15,
17. Admissions made during treatment or in order to obtain treatment
may not be used as a basis for a court-martial. AR 600-85, ch. 6,
Section II "Limited Use Policy," at 29.
/3/ Petitioner's defense at trial was that the testing procedures
were flawed in that individuals may have purposely or accidentally
switched petitioner's sample with another sample. Tr. 345-355.
/4/ As this Court noted in Schlesinger v. Councilman, 420 U.S. 738,
760 n.34 (1975):
The seriousness of the problem is indicated by information
presented before congressional committees to the effect that some
86,000 servicemen underwent some type of rehabilitation for drug
abuse in fiscal years 1972 and 1973, and only 52% of these were
able to return to duty after rehabilitation. * * * It is not
surprising, in view of the nature and magnitude of the problem,
that in United States v. Beeker, 18 U.S.C.M.A. 563, 565, 40 C.M.R.
275, 277 (1969), the Court of Military Appeals found that "use of
marihuana and narcotics by military persons on or off a military
base has special military significance" in light of the
"disastrous effects" of these substances "'on the health, morale
and fitness for duty of persons in the armed forces.'"
More recent statistics show that drug abuse in the armed services has
diminished significantly. See Unger v. Ziemniak, 27 M.J. 349, 357 n.16
(C.M.A. 1989) (noting a 90% reduction in drug use since 1982 and
commenting that "though drug testing undoubtedly does not deserve sole
credit for this improvement, we are convinced that it performed a
significant role").
/5/ These statistics were provided by the United States Army Drug and
Alcohol Operations Agency, the agency responsible for inspecting and
supervising the Army drug testing program.
/6/ See, e.g., United States v. Thatcher, 28 M.J. 20 (C.M.A. 1989)
(invalidating a room inspection on the basis that the inspection was a
subterfuge for a search of a suspected thief's belongings); United
States v. Austin, 21 M.J. 592 (A.C.M.R. 1985) (upholding the trial
judge's determination that a random urinalysis was a subterfuge for a
search of a soldier's urine). Significantly, once an accused makes a
prima facie showing of subterfuge, the prosecution must establish by
clear and convincing evidence that the search was a valid inspection.
Mil. R. Evid. 313(b).
/7/ To the extent that petitioner's argument is directed at the drug
testing program generally, the aforementioned statistics rebut his claim
that the program is aimed at acquiring evidence for use at
courts-martial. In addressing a similar argument in Bickel, the Court
of Military Appeals appropriately stated: "We might take a different
view (of the constitutionality of the Army's drug testing program) if
the drug testing were designed solely to obtain evidence for criminal
prosecution; but, as we understand the military drug-testing program,
that is not the case. A positive drug test may result in admonitions or
adverse administrative action for a servicemember -- rather than in
criminal prosecution." Bickel, 30 M.J. at 285.
/8/ AR 600-85 provides that "(s)oldiers must be directly observed
when providing urine specimens * * *; however, they will be accorded
maximum respect and concern for human dignity," and directs commanders
to select observers who "possess sufficient maturity and integrity to
ensure that urine specimens they observe being provided are not
contaminated or altered in any way." AR 600-85 paras. 10-3a and
10-4e(2), at 41, 42.
/9/ As the Court of Military Appeals has stated: "The very detailed
regulations and policies established by the armed services for drug
testing not only provide notice but also reduce the occasion for
arbitrariness and abuse of discretion." Bickel, 30 M.J. at 285.
BARTHOLOMEW S. BERRY, PETITIONER V. UNITED STATES OF AMERICA
No. 90-203
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals
Brief For The United States In Opposition
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the Court of Military Appeals (Pet. App. 3a-7a) is
reported at 30 M.J. 134. The opinion of the Air Force Court of Military
Review (Pet. App. 1a-2a) is unreported.
JURISDICTION
The judgment of the Court of Military Appeals was entered on May 10,
1990. The petition for a writ of certiorari was filed on August 1,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1259(3).
QUESTIONS PRESENTED
1. Whether the trial judge abused his discretion by denying a defense
request for the production of witnesses.
2. Whether the admission during the government's rebuttal case of
petitioner's positive urinalysis test result was harmless error.
STATEMENT
Following a general court-martial at Yokota Air Base in Japan,
petitioner, a member of the United States Air Force, was convicted of
using marijuana and distributing marijuana, in violation of Article 112a
of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 912a.
Petitioner was sentenced to confinement for four months, a fine of
$4,000, a reduction in rank, and a bad conduct discharge. The convening
authority approved the findings and sentence. The Air Force Court of
Military Review affirmed the findings and sentence. Upon discretionary
review, the Court of Military Appeals affirmed.
1. The evidence at trial showed that petitioner used and distributed
marijuana on various occasions during 1987. Pet. App. 3. The questions
presented in the petition relate to two evidentiary rulings at trial.
First, petitioner contends that the trial judge erred in denying a
defense request for the production of two witnesses who allegedly would
have corroborated petitioner's account of the interrogation methods used
against him. Second, petitioner argues that the erroneous admission of
his positive urinalysis test result was not harmless error.
The principal evidence against petitioner was his January 3, 1988,
confession to special agents of the Air Force Office of Special
Investigations (OSI). PX 1. In his confession, which the defense
unsuccessfully moved to suppress, petitioner admitted using marijuana on
a number of occasions during 1987 and distributing marijuana to Staff
Sergeant Steven Ladnyk on approximately seven occasions. PX 1.
Petitioner's confession was corroborated by the testimony of Sergeant
Ladnyk and Airman Jerry Smitherman. Pet. App. 4a, 7a; Tr. 115-124,
132-144; PX 2.
Petitioner's defense was that his confession was not adequately
corroborated because Sergeant Ladnyk and Airman Smitherman were not
credible witnesses. Tr. 110, 172. Petitioner also called Captain Linda
Rollins, the medical urine testing program monitor at the Yokota Air
Base, who testified that petitioner's November 17, 1987, and January 4,
1988, urine samples were negative. Tr. 146-148; DX A. In rebuttal,
the government offered Prosecution Exhibit 3, a laboratory report
showing the presence of the marijuana metabolite in a urine sample
collected from petitioner on January 3, 1988. Over defense objection,
the trial judge admitted the exhibit. Tr. 169-170.
Petitioner said that he was considering calling Sergeant Leonard
Booker. Tr. 12-32. At that point, the government had yet to offer
evidence in opposition to the suppression motion. Defense counsel said
he had submitted a request to the local Staff Judge Advocate that
Sergeant Booker be given immunity. /1/ Defense counsel indicated that
the OSI had interviewed Sergeant Booker as a witness, not a suspect, but
that Sergeant Booker could nonetheless give evidence concerning the
OSI's methods of questioning. Tr. 32. The trial judge suggested that
the matter should be raised after the government had presented its case
on the suppression motion, and the defense deferred resolution of the
issue until then. Tr. 31-32.
The government's evidence on the motion included testimony from the
two OSI agents who questioned petitioner when he confessed. They denied
engaging in the following practices: lying to subjects, promising a
suspect leniency in exchange for his cooperation, and threatening a
suspect if he did not cooperate. Tr. 46-47, 56-57, 67-69. After the
government had rested, defense counsel again asked that Sergeant Booker
be granted use immunity and be produced as a defense witness. The trial
judge held that Sergeant Booker's testimony was not relevant. Tr. 96.
Defense counsel subsequently made an offer of proof that Sergeant Booker
would have said that (1) he was questioned by the OSI as a witness
without being advised of his rights; (2) Special Agent Carroll, one of
the agents who questioned petitioner, participated in the interview of
Sergeant Booker; (3) Sergeant Booker was questioned for approximately
two and one-half hours; and (4) the agents persisted in their
questioning even after Sergeant Booker said that he knew nothing. Tr.
97.
Defense counsel then expressed a desire to call as a witness a former
OSI agent to testify about OSI practices and policies. Tr. 96-99. In
particular, the agent would say that it was common for agents to lie in
order to induce a suspect to talk. Tr. 98. Defense counsel conceded,
however, that his witness could not offer any testimony about the
practices of the OSI detachment at the Yokota Air Base during the
relevant time, or about the interrogation methods of the agents who
questioned petitioner. Tr. 99. The trial judge held that the proffered
testimony was collateral to the issues. Tr. 99-100.
2. In the court of military review, petitioner argued that the trial
judge erred by admitting petitioner's urinalysis test results.
Petitioner did not claim that the trial judge erred by not ordering the
defense witnesses to be produced. /2/ In a memorandum opinion, the
court of military review affirmed the findings and sentence. Pet. App.
2a.
3. Petitioner then sought review in the Court of Military Appeals on
both the urinalysis and the witness production issues, but that court
limited its review to the urinalysis issue. The court agreed with
petitioner that his urinalysis test result should not have been admitted
in rebuttal, since the government did not establish a proper chain of
custody. Pet. App. 6a-7a. The court concluded, however, that the error
was harmless. The court specifically observed that "(t)he prosecution
case was strong and included a detailed confession by (petitioner),
which dove-tailed with the corroborating testimony of two prosecution
witnesses." Id. at 7a.
ARGUMENT
1. Petitioner claims that the trial judge erred in ruling that the
testimony of his proposed witnesses was irrelevant. Pet. 3-4. /3/ In
particular, petitioner claims that the testimony of the former OSI agent
would have rebutted the testimony of the OSI agents regarding their
interrogation practices and procedures. /4/
Under military law, a servicemember is entitled to compel the
attendance of witnesses who can offer relevant evidence in his behalf.
See Art. 46, UCMJ, 10 U.S.C. 846; United States v. Roberts, 10 M.J. 308
(C.M.A. 1981). The witnesses in this case, however, did not have
relevant testimony to offer. The defense theory at the suppression
hearing was that petitioner was coerced into confessing. Neither
defense witness would have materially supported that defense.
The proffered testimony of the former OSI agent was too far removed
from the facts of this case. The former OSI agent did not participate
in the questioning of petitioner; he had never been assigned to the
Yokota Air Base; and he had no knowledge of the facts of petitioner's
interview. Similarly, nothing Sergeant Booker proposed to say lent any
credence to the defense theory. The fact that Sergeant Booker was
questioned by an OSI agent who also questioned petitioner did not
support the defense claim that petitioner was coerced into confessing.
The sergeant was not present when petitioner was questioned, nor was he
interviewed under similar circumstances. In any event, while Sergeant
Booker maintained that the OSI agents continued to question him after he
disavowed any knowledge relevant to their investigation, he would not
have testified that the agents had mistreated or coerced him. And the
fact that a professional investigator would tenaciously question a
potential witness is unremarkable. Accordingly, Sergeant Booker's
testimony was properly held to be irrelevant to petitioner's challenge
to the voluntariness of his confession.
2. Petitioner complains that the Court of Military Appeals applied an
improper harmless error standard, because that court considered the
overall strength of the government's case and the defense case in
determining that the error was harmless. Pet. 4. That claim is
meritless, since harmless error analysis focuses on the entire record,
which includes the government's case as well as the defense case. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); United States v.
Hasting, 461 U.S. 499, 509 (1983). The Court of Military Appeals
applied that standard here. Pet. App. 7a. Because the court applied
the correct harmless error standard to the facts of this case, its
fact-bound determination that the error in this case was harmless does
not warrant review by this Court. See Francis v. Franklin, 471 U.S.
307, 326 n.10 (1985) ("The primary task of this Court upon review of a
harmless-error determination by the court of appeals is to ensure that
the court undertook a thorough inquiry and made clear the basis of its
decision.").
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
WILLIAM R. DUGAN, JR.
Col., OJAG, USAF
BRENDA J. HOLLIS
Maj., OJAG, USAF
LEONARD R. RIPPEY
Capt., OJAG, USAF Appellate Government Counsel Government Trial
and Appellate Division
SEPTEMBER 1990
/1/ The status and resolution of that request were never clarified in
the record.
/2/ In his assignment of errors to the court of military review,
petitioner did not expressly raise this claim, but "invited the court's
attention" to this matter. Whether that is an appropriate method for
raising issues before the Air Force Court of Military Review is a matter
of ongoing controversy that is the subject of a proposed change to that
court's internal rules.
/3/ It is not clear that this question is subject to review in this
Court. The statutes authorizing this Court to review by a writ of
certiorari the judgments of the Court of Military Appeals, 10 U.S.C.
867(h)(1) and 28 U.S.C. 1259(3), restrict this Court's certiorari
jurisdiction to "decisions" of the Court of Military Appeals. Section
867(h)(1) of Title 10 further provides that this Court may not review by
certiorari "any action of the Court of Military Appeals in refusing to
grant a petition for review." The Court of Military Appeals has the
statutory authority, which it exercised in this case, to limit its
decision in any case to less than all of the questions presented by a
defendant. 10 U.S.C. 867(d). Since the Court of Military Appeals
accepted for review only the urinalysis issue and did not grant review
on the witness production issue, there is a question whether that court
rendered a "decision()" on the first question that petitioner has
presented in his petition, and whether the court's refusal to accept
that question constituted an "action" of that court "in refusing to
grant a petition for review" within the meaning of 10 U.S.C. 867(h)(1).
That question does not require an answer in this case, however, since
the questions presented in the certiorari petition do not warrant review
by this Court in any event.
/4/ Petitioner also claims that the trial judge improperly required
petitioner to show that his proposed witnesses did not have a motive to
lie before the judge would order their production. Pet. 4. That claim
misconstrues a comment made by the trial judge. After noting that
Sergeant Booker may have been involved in misconduct relating to this
case, the judge merely said that the defense could not offer one person
with a "neutral and unbiased point of view" to support the defense claim
that the OSI agents coerced the confession from petitioner. Tr. 99.
That comment did not constitute the legal basis for the judge's ruling.
See generally Tr. 95-99.
FEDERAL ENERGY REGULATORY COMMISSION, PETITIONER V. COLUMBIA GAS
TRANSMISSION CORPORATION, ET AL.
No. 90-131
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit
Reply Brief For The Federal Energy Regulatory Commission
The brief in opposition filed by respondents Columbia Gas
Transmission Corporation, et al., is devoted almost entirely to the
submission that the Court should not grant plenary review in this case.
See Columbia Br. in Opp. 14-21. However, we do not urge the Court to
grant plenary review, on the basis of either our own petition or the
petition filed by the affected pipelines, Panhandle Eastern Pipe Line
Co. v. Columbia Gas Transmission Corp., No. 89-2001 (filed June 22,
1990). Instead, we suggest that both petitions be held and disposed of
in light of the Court's disposition of FERC v. Associated Gas
Distributors, petition for cert. pending, No. 89-2016 (filed June 22,
1990) (AGD II), and the other certiorari petitions seeking review of the
decision of the D.C. Circuit in that case (see Pet. 13 n.8).
Respondents have offered no persuasive reason for rejecting our modest
suggestion.
1. This case involves the validity of Commission orders permitting
five natural gas pipelines to pass through to downstream customers,
based on their past purchases of gas, various costs that the pipelines
themselves had been required to pay producers for their purchase of the
same gas. The Commission found "good cause" for waiving the notice
requirement in Section 4(d) of the Natural Gas Act (NGA) in order to
permit the pipelines to place the rate increases in effect as of 1980,
when the Commission had imposed an interim moratorium on the filing of
applications to recover the costs.
In setting aside the Commission's orders, the D.C. Circuit did not
hold that Section 4(d) of the NGA absolutely bars the Commission from
granting a waiver that permits a rate increase to be given an effective
date prior to when it was filed with the Commission. To the contrary,
the court below acknowledged that it had sustained a waiver having that
effect in a prior case, Pet. App. 10a-11a (citing City of Piqua v. FERC,
610 F.2d 950, 954-955 (D.C. Cir. 1979)), /1/ and other courts of appeals
likewise have held that Section 4(d) permits the Commission to grant
such a waiver. Hall v. FERC, 691 F.2d 1184 (5th Cir. 1982), cert.
denied, 464 U.S. 822 (1983); Towns of Concord & Wellesley v. FERC, 844
F.2d 891, 896-897 (1st Cir. 1988). Because the court below did not
reject the Commission's interpretation that Section 4(d)'s waiver
provision allows a pre-filing effective date, and because there is in
any event no circuit conflict on that issue, we do not believe that it
warrants review. Although respondents question (Columbia Br. in Opp. 18
& n.22) the continuing validity of City of Piqua, Hall, and Towns of
Concord & Wellesley after Maislin Industries, U.S., Inc. v. Primary
Steel, Inc., 110 S. Ct. 2759 (1990), they likewise do not ask the Court
to grant review on the scope of Section 4(d)'s waiver provision in this
regard. /2/
2. As we have explained (Pet. 16-18), the court of appeals' decision
in this case rested on a different ground. It faulted the Commission
for failing to notify the pipelines' downstream customers in 1980 that
they might later be billed an additional amount to cover costs of
producing the gas they were purchasing. See Pet. App. 10a-11a, 13a.
The court of appeals made clear that this notice was distinct from the
"statutory notice" required by (and subject to waiver under) Section
4(d) of the NGA. Pet. App. 10a. Contrary to the court's view, however,
the NGA's prohibition against retroactive rate increases instituted by a
pipeline derives from Section 4(d). /3/ In holding that the prohibition
instead exists independently of Section 4(d), and then fashioning an
extra-statutory notice requirement to enforce this unanchored
prohibition, see Pet. 17-18; Pet. App. 10a, 11a, 13a, the court adhered
to the approach it followed in AGD II, where it likewise invoked a
judicially fashioned version of the filed rate doctrine that is not
rooted in the text of the NGA. See 89-2016 Pet. 13-15, 18-19, 21-25;
89-2016 Reply Br. 4-8. It is for this reason that we suggest the Court
hold the petitions in this case pending the disposition of AGD II.
Respondents' objections to our suggestion are insubstantial. First,
they argue (Columbia Br. in Opp. 22) that AGD II is distinguishable
because it does not involve the Commission's waiver authority under
Section 4(d). But as we have just explained, the court below did not
hold that Section 4(d) itself bars the Commission from granting a waiver
that permits a rate increase to be given a pre-filing effective date;
the court instead invalidated the rate increase because the Commission
did not comply with notice requirements that the court found to exist
independently of Section 4(d) and that therefore were unaffected by a
waiver under Section 4(d).
Second, respondents assert (Columbia Br. in Opp. 23) that there is no
"reason to expect that any foreseeable disposition by the Court of (the)
petitions (in AGD II) would affect the holding of the court of appeals
in this case." But as we explain in the petition (at 19), if the Court
grants certiorari in AGD II and reverses the D.C. Circuit's decision in
that case because it was not based on the text of the provisions of the
NGA (including Section 4(d)) that comprise the filed rate doctrine --
and if the Court then remands this case for further consideration in
light of AGD II -- it will be clear to the D.C. Circuit that the NGA's
only prohibition against retroactive rate increases instituted by a
pipeline is contained in Section 4(d). Under its own precedent in City
of Piqua, which construed Section 4(d)'s waiver provision to permit a
rate increase having a pre-filing effective date, the D.C. Circuit would
be required to consider on remand whether the Commission reasonably
determined that there was "good cause" for permitting a pre-filing
effective date in this case. There is no reason to assume that the
court would disagree with that determination, in view of the
Commission's statement when it imposed the moratorium in 1980 that
producers would be permitted to recover the costs from pipelines on a
retroactive basis, the changes in the natural gas industry since that
time, and the fact that the costs were incurred by producers and paid by
pipelines for the benefit of downstream customers such as respondents.
See also Pet. 10, quoting Pet. App. 13a (Commission "may well be correct
in its assessment of the equities").
Third, respondents erroneously contend (Columbia Br. in Opp. 20, 23)
that this case is unrelated to AGD II because it does not arise out of
the massive restructuring of the natural gas industry in the 1980s.
Although respondents are correct that the Commission's original orders
allowing the pipelines to recover the costs by direct billing of
downstream customers preceded the Commission's Order No. 436, /4/ which
was designed to encourage pipelines to assume open-access status, the
pipeline petitioners correctly point out (89-2001 Reply Br. 7-8) that
those orders came after Order No. 380, /5/ which eliminated
variable-cost minimum bills in pipeline tariffs and was the first major
step in restructuring the natural gas market. See 89-2016 Pet. 6. And
of course the waiver orders in this case were issued by the Commission
in 1988, Pet. App. 15a, well after Order No. 436. Thus, the orders in
this case and in AGD II arose out of the same regulatory and market
climate. /6/
For the foregoing reasons and those stated in the petition, it is
respectfully submitted that the petition for a writ of certiorari (and
the petition filed by the pipelines in this case, Panhandle Eastern Pipe
Line Co. v. Columbia Gas Transmission Corp., No. 89-2001 (filed June 22,
1990)) should be held and disposed of as appropriate in light of the
Court's disposition of the petition for a writ of certiorari in FERC v.
Associated Gas Distributors, No. 89-2016 (filed June 22, 1990), and the
other certiorari petitions seeking review of the judgment of the
District of Columbia Circuit in that case.
JOHN G. ROBERTS, JR.
Acting Solicitor General /7/
WILLIAM S. SCHERMAN
General Counsel Federal Energy Regulatory Commission
SEPTEMBER 1990
/1/ "Pet. App." refers to the petition for a writ of certiorari in
No. 89-2001.
/2/ We do not believe that Maislin has any bearing on the scope of
the Commission's waiver authority in this case, since the Court
specifically declined to express a view on the Interstate Commerce
Commission's actions under the corresponding provision of the Interstate
Commerce Act, 49 U.S.C. 10762(c), which is worded differently from
Section 4(d) of the NGA. See 110 S. Ct. at 2770 n.14. The effect, if
any, of Maislin on the Commission's waiver authority under Section 4(d)
of the NGA may be considered by the D.C. Circuit if, as we urge, the
Court vacates the judgment below and remands the case for further
consideration in light of its ultimate disposition in AGD II.
/3/ Contrary to respondents' suggestion (Mun. Def. Grp. Br. in Opp.
9), this Court distinguished between Sections 4(d) and 5(a) of the NGA
in Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577-578 (1981), and
it specifically reserved the question whether the Commission could grant
a waiver under Section 4(d) to permit a pre-filing effective date in the
circumstances of that case, 453 at 578 n.8.
/4/ FERC Stats. & Regs., Regulations Preambles (1982-1985) Paragraph
30,665 (Oct. 18, 1985).
/5/ FERC Stats. & Regs., Regulations Preambles (1982-1985) Paragraph
30,571 (June 1, 1984), aff'd sub nom. Wisconsin Gas Co. v. FERC, 770
F.2d 1144 (D.C. Cir. 1985), cert. denied, 476 U.S. 1114 (1986).
/6/ The basis for holding the petitions in this case pending the
disposition of AGD II, rather than denying certiorari, is reinforced by
the recurring nature of the issue. In Transwestern Pipeline Co. v.
FERC, 897 F.2d 570, 580 n.7 (1990), the D.C. Circuit relied on its
decision in the instant case in holding that the Commission could not
allow certain charges by waiving the notice requirement in Section 4(d).
On August 29, 1990, we filed a petition for a writ of certiorari in the
Transwestern case, suggesting that the petition be held and disposed of
in light of the Court's disposition of the petitions in AGD II and the
instant case. FERC v. Public Utilities Comm'n of California, No.
90-367. The affected pipelines also have filed a certiorari petition in
that case. Transwestern Pipeline Co. v. Kansas Power & Light Co., No.
90-344 (filed Aug. 24, 1990).
/7/ The Solicitor General is disqualified in this case.
CITIZENS FOR FAIR UTILITY REGULATION, PETITIONER V. NUCLEAR
REGULATORY COMMISSION, ET AL.
No. 90-119
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit
Brief For The Federal Respondents In Opposition
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The decision of the court of appeals (Pet. App. A1-A9) is reported at
898 F.2d 51. The decision of the Nuclear Regulatory Commission (Pet.
App. B1-B11) is reported at 28 N.R.C. 605.
JURISDICTION
The judgment of the court of appeals was entered on April 12, 1990.
The petition for a writ of certiorari was filed on July 10, 1990. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
Whether the Nuclear Regulatory Commission abused its discretion in
denying petitioner's untimely motion to intervene in an administrative
proceeding.
STATEMENT
Petitioner challenges the decision of the Nuclear Regulatory
Commission denying its petition to intervene in an already concluded
administrative proceeding on the ground that the petition was untimely
and did not satisfy the requirements established by the Commission's
rules of practice for the admission of untimely petitions.
1. Under the Atomic Energy Act of 1954 (Act), 42 U.S.C. 2011 et seq.,
the NRC is authorized to license and regulate the construction and
operation of nuclear power plants. Section 189(a) of the Act, 42 U.S.C.
2239(a), requires the Commission to provide an opportunity for a hearing
on certain proposed actions, including the granting of a license to
operate such a power plant.
In order to facilitate the orderly conduct of agency business, the
Commission has developed rules of practice governing the submission of
requests for hearings and the conduct of the hearings themselves. 10
C.F.R. Pt. 2. Those rules provide that an interested person may
intervene in an agency licensing proceeding as a matter of right within
the time limit contained in the Federal Register notice announcing the
proposed agency action. Petitions to intervene filed after that time
are evaluated on the basis of five enumerated criteria: (1) whether
there is good cause for the failure to file on time; (2) the
availability of other means to protect the petitioner's interests; (3)
the extent to which the petitioner's participation may be expected to
assist in developing a sound record; (4) the extent to which the
petitioner's interest will be represented by existing parties; and (5)
the extent to which the petitioner's participation will broaden the
issues or delay the proceeding. Pet. App. A4; 10 C.F.R.
2.714(a)(1)(i)-(v). Where there is no "good cause" for the untimeliness
of the petition for intervention, the Commission requires a "compelling
showing" on the remaining four factors before allowing intervention.
See, e.g. Nuclear Fuel Services Inc. (West Valley Reprocessing Plant),
CLI-754, 1 N.R.C. 273 (1975).
2. On February 28, 1978, Texas Utilities Electric Company (TU
Electric) applied for a license to operate the Comanche Peak Steam
Electric Station, a two-unit nuclear power plant that it was
constructing approximately 55 miles southwest of Ft. Worth, Texas.
Petitioner and two other organizations, the Citizens Association for
Sound Energy (CASE), and the Association of Communities for Reform Now
(ACORN), filed timely requests to intervene. All three organizations
participated in the proceeding until ACORN and petitioner voluntarily
withdrew in 1981 and 1982, respectively (Pet. 7; Pet. App. A2, B2).
The proceeding then continued before the NRC's Atomic Safety and
Licensing Board with CASE as the sole intervenor. By 1984, the
proceeding had resolved all disputed issues except a contention relating
to quality assurance and quality control in the construction of the
plant (Pet. App. A2). In 1986, the NRC convened a related proceeding to
consider TU Electric's request to seek additional time to complete
construction of Unit 1 of the Comanche Peak Steam Electric Station.
3. On June 28, 1988, CASE and TU Electric reached a settlement
agreement. Accordingly, CASE, TU Electric, and the NRC staff (a
statutory party to all NRC administrative proceedings) submitted a joint
motion to dismiss the administrative proceedings as settled (Pet. App.
A3). On July 13, 1988, the Licensing Board held a hearing to review the
settlement agreement. After receiving comments from the parties and
interested members of the public, including petitioner, and reviewing
the documents underlying the agreement, the Licensing Board issued an
order publishing those documents and dismissing the proceedings. Ibid.
See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station,
Units 1 and 2), LBP-88-18B, 28 N.R.C. 103 (1988).
4. On August 11, 1988, petitioner filed a request to intervene in the
already settled administrative proceedings, claiming that it satisfied
the five criteria enumerated in 10 C.F.R. 2.714(a)(1)(i)-(v). In this
request and two later filed supplements, petitioner asserted that it
withdrew from the proceedings due to financial considerations and on the
assumption that CASE would continue to litigate the proceedings (Pet.
App. A6, B2-B3); that it had no alternative means to protect its
interests; that it could make important contributions to the record;
and that its late intervention would not cause any delay in the
proceedings (id. at B3-B4).
5. On December 21, 1988, the Commission denied petitioner's request
for intervention, finding that petitioner had failed to satisfy the
required criteria as interpreted in the Commission's prior decisions
(Pet. App. B1-B11). /1/ The Commission first determined that petitioner
had failed to demonstrate "good cause" for the lateness of its
intervention request (Pet. App. B5-B6). Accordingly, petitioner was
obligated to make a compelling showing that the remaining four factors
weighed in support of its petition. The Commission found that
petitioner had not made such a showing. Although two of the four
factors supported the petition for late intervention, the ones accorded
the most weight -- the ability to contribute to the record and the
likelihood of delay -- weighed against intervention (id. at B7-B9). The
Commission therefore refused to permit petitioner to intervene.
6. Petitioner sought review of that decision in the court of appeals,
alleging that the Commission's decision was arbitrary and capricious.
/2/ The court of appeals affirmed the Commission's decision. It
concluded that the Commission correctly found that petitioner had not
demonstrated "good cause" for the lateness of its requested
intervention, and that the Commission's balancing of the remaining four
factors was not an abuse of discretion. Pet. App. A1-A9.
ARGUMENT
Neither the Commission nor the court of appeals established any new
principle of law or Commission procedure. Instead, the Commission
applied clear and consistent administrative precedent to an extremely
late request for discretionary intervention and denied that request
because petitioner did not satisfy the regulatory requirements. The
court of appeals applied well-settled legal principles in reviewing the
Commission's fact-bound decision and determined that the Commission did
not abuse its discretion in reaching that decision. Moreover, the court
of appeals' decision is consistent with decisions of other courts of
appeals that have considered similar issues. Thus, the case presents no
issue worthy of this Court's attention.
1. The court of appeals properly concluded that the Commission's
decision to deny the petitioner's request for late intervention was not
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. 706(2)(A). See, e.g., Baltimore Gas &
Electric Co. v. NRDC, Inc., 462 U.S. 87, 90, 105-106 (1983). Moreover,
the court of appeals correctly applied the established principle that
when reviewing an agency's application and interpretation of its own
regulation, "the ultimate criterion is the administrative
interpretation, which becomes of controlling weight unless it is clearly
erroneous or inconsistent with the regulation." Bowles v. Seminole Rock
& Sand Co., 325 U.S. 410, 414 (1945). See also Robertson v. Methow
Valley Citizens Council, 109 S. Ct. 1835, 1850 (1989). Specifically,
the court of appeals found that the Commission followed its
long-standing administrative precedent in determining that petitioner
had not established "good cause" for its extremely late petition. Pet.
App. A5-A7. The court of appeals also found that the Commission did not
abuse its discretion in balancing the remaining four factors against
allowing late intervention. Id. at A7-A9. These rulings on routine
questions of administrative law are correct, and in any event do not
involve matters warranting further review.
a. Petitioner argues primarily that its petition for late
intervention was justified by the settlement between CASE and TU
Electric that terminated the NRC hearing on Comanche Peak. Pet. 9-13.
But the court of appeals correctly found that "NRC precedent
consistently and clearly indicates that a potential intervenor cannot
rely on another intervenor to present a certain view or represent
certain interests without assuming the risk that the intervenor will not
do so." Pet. App. A6 (citing, inter alia, Easton Utilities Comm'n v.
AEC, 424 F.2d 847 (D.C. Cir. 1970)).
In Easton, the District of Columbia Circuit upheld the Commission's
position in a situation virtually identical to the instant one. As the
Easton court noted (424 F.2d at 851, quoting Red River Broadcasting Co.
v. FCC, 98 F.2d 282, 286-287 (D.C. Cir.), cert denied, 305 U.S. 625
(1938)):
"(A) person should not be entitled to sit back and wait until all
interested persons who do (timely intervene) have been heard, and
then complain that he has not been properly treated. To permit
such a person to stand aside and speculate on the outcome * * *
and then permit the whole matter to be reopened in his behalf,
would create an impossible situation."
The Easton court further explained that "(w)e do not find in statute
or in case law any ground for accepting the premise that proceedings
before administrative agencies are to be constituted as endurance
contests modeled after relay races in which the baton of proceeding is
passed on successively from one legally exhausted contestant to a newly
arriving legal stranger." 424 F.2d at 852.
In the instant case, petitioner voluntarily withdrew from the NRC
administrative proceedings in 1982 and sat back to see if the outcome
would be favorable. When the outcome was not to its liking, petitioner
attempted to reintervene. As the court of appeals noted (Pet. App. A7
(quoting Pet. App. B6)):
(a)t the time of the filing of the petition to intervene,
(petitioner) was a legal stranger to the action. As the NRC
succinctly stated, "(petitioner) assumed the risk that CASE would
not represent its interest to its complete satisfaction when it
withdrew from the proceedings in 1982. It cannot now complain
when that risk becomes reality."
The Easton court was quite correct in concluding (424 F.2d at 851)
that, to "permit the whole matter to be reopened * * * would create an
impossible situation." For example, even if a license applicant met all
the objections of those who actively opposed the license and the
administrative proceeding came to an end through settlement, nothing
would have been achieved if the proceeding could be reopened at the
request of any person who claimed reliance on the satisfied intervenor.
Petitioner's position would, in many situations, effectively render
settlement agreements nugatory.
Moreover, the Commission -- like any other regulatory body -- is
entitled to stability in its proceedings. An agency cannot have its
proceedings subject to the whims of intervenors who withdrew only to
re-enter whenever they do not like the result achieved by those
remaining in the proceeding after they leave. In essence, petitioner
would deny the agency, the applicant, the courts, and the general public
the benefits of finality in administrative proceedings by requiring
those parties to endure the kind of administrative "relay race"
described by the Easton court (424 F.2d at 852).
b. Petitioner argues that the Commission "fail(ed) to examine
seriously the nature and timing of the private settlement agreement
ending public licensing proceedings" (Pet. 12-13). That is simply
incorrect. The Licensing Board held a full-scale hearing on the
settlement agreement, at which the Board entered all agreements and
related documents on the record, save only those items which would
invade the personal privacy of persons who had signed individual
settlement agreements. There was thus a thorough investigation of the
settlement agreement and the circumstances surrounding it. Moreover,
the NRC continues to oversee the safety of activities at Comanche Peak
-- as it does at every nuclear plant in the United States, regardless of
whether there is an administrative hearing in progress.
The Commission again specifically considered the circumstances
surrounding the settlement agreement when reviewing and rejecting
petitioner's untimely petition to intervene. See, e.g., Pet. App.
B3-B6. The court of appeals also considered and rejected petitioner's
argument that its surprise at the settlement agreement constituted "good
cause" for the untimeliness of its attempt to intervene. Id. at A6.
c. The decision of the court appeals is clearly consistent with the
decisions of other courts of appeals in similar cases. See, e.g.,
Easton Utilities Comm'n v. AEC, supra. Contrary to petitioner's
suggestion (Pet. 11-12), WFTL Broadcasting Co v. FCC, 376 F.2d 782 (D.C.
Cir. 1967), is inapposite. WFTL Broadcasting concerned an agency denial
of a request to intervene as a matter of right, and the court of appeals
remanded the case for the FCC to consider the possibility of
intervention as a matter of discretion, 376 F.2d at 784-785. Here,
petitioner virtually concedes that it has no right to intervene (Pet.
6), and the agency has fully and correctly considered whether
discretionary intervention should be permitted. The instant petition to
intervene came nine years after proceedings began, seven years after
petitioner withdrew from the proceedings voluntarily, and one month
after the proceedings had been dismissed. This case, in short, involves
no significant question of law, but centers solely around a
fact-specific application of the NRC's discretionary intervention
standards. See 10 C.F.R. 2.714(a)(1)(i)-(v).
2. Finally, petitioner suggests (Pet. 13-15) that a recurring problem
with check valves at the Comanche Peak plant constitutes a "fundamental
flaw" which, according to petitioner, mandates a reopening of the NRC
administrative proceedings. /3/ Petitioner argues that Union of
Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert.
denied, 469 U.S. 1132 (1985), and Long Island Lighting Co. (Shoreham
Nuclear Power Station, Unit 1), ALAB-903, 28 N.R.C. 499, 505 (1988),
support this proposition. Petitioner is in error. Both of those cases
considered the adequacy of an applicant's emergency evacuation plan, as
determined through pre-licensing emergency preparedness exercises, and
noted that a "fundamental flaw" disclosed through such exercises would
justify reopening the licensing hearing. The cases have no
applicability to allegations that individual pieces of equipment are
defective. /4/
In this case, petitioner's allegation that a specific piece of
equipment has failed to function properly is typical of the kinds of
contentions raised by persons seeking to intervene in ongoing
proceedings. See 10 C.F.R. 2.714(b). The Commission acted well within
its discretion in rejecting a request for late intervention to litigate
the adequacy of a particular piece of allegedly defective equipment -- a
piece of equipment that is no more significant than many of the myriads
of other pieces of equipment at the plant.
The refusal to reopen does not, of course, mean that the Commission
is ignoring a safety issue. The NRC technical staff has the authority
and the responsibility to assure that reactor safety is not impaired by
faulty equipment, regardless of whether the matter is being litigated
before a Licensing Board. If the improper functioning of reactor
equipment poses a safety hazard, the Commission may require TU Electric
to repair or replace the equipment. But nothing in the Atomic Energy
Act or Commission regulations calls for reopening a closed adjudicatory
hearing merely on the basis of a claim of an equipment malfunction.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
GEORGE VAN CLEVE
Acting Assistant Attorney General
MARTIN W. MATZEN
DIRK D. SNEL
Attorneys
JOHN F. CORDES
Solicitor
E. LEO SLAGGIE
Deputy Solicitor
CHARLES E. MULLINS
Attorney Nuclear Regulatory Commission
SEPTEMBER 1990
/1/ The opinion was subsequently amended in a way not relevant to the
issues raised in this petition. See Resp. Br. in Opp. App. A.
/2/ On the eve of oral argument, petitioner applied for a stay to
prevent the operation of the Comanche Peak plant pursuant to the NRC
license, pending a decision on the merits. After oral argument, the
court of appeals denied the stay on February 6, 1990. Justice White
also denied a stay. Pet. 4; Citizens for Fair Utility Regulation v.
United States Nuclear Regulatory Comm'n, No. A-681 (Mar. 30, 1990).
/3/ While petitioner argued before the Commission that the check
valves were defective, petitioner did not contend that those valves
constituted a "fundamental flaw" justifying reopening of the licensing
proceedings either in its petition to intervene before the Commission or
in its petition to review the Commission's decision before the court of
appeals. Thus, the argument is not properly raised in the petition for
certiorari. See, e.g., FPC v. Colorado Interstate Gas Co., 348 U.S.
492, 498-501 (1955); Unemployment Compensation Comm'n v. Aragon, 329
U.S. 143, 155 (1946) ("A reviewing court usurps the agency's function
when it sets aside the administrative determination upon a ground not
theretofore presented.").
/4/ As Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit
1), ALAB-903, 28 N.R.C. 499, 505 (1988) points out, to justify reopening
the challenging party must demonstrate "a failure of an essential
element of the plan," and must show that the defect "can only be
remedied by a significant review of the plan." Indeed, when litigating a
"fundamental flaw" in an emergency plan, an intervenor is limited to
litigating only those items which are identified as a part of the
"fundamental flaw." Id. at 504. Even if we assume that these cases are
relevant to the quite different question of alleged defects in
equipment, petitioner has not demonstrated that a significant review of
the plant specifications is necessary, and attempts to litigate issues
far beyond the alleged defects in the check valves. In any event,
petitioner suggests no reason why the alleged defect could not be
remedied by simply replacing the equipment.
CONSOLIDATION COAL COMPANY, PETITIONER V. DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, AND
ALBERT C. DAYTON
No. 90-114
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit
Brief For The Federal Respondent
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 2-7) is reported at
895 F.2d 173. The decision and order of the Benefits Review Board (Pet.
App. 8-13) and the decision and order of the administrative law judge
(Pet. App. 14a-27a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on February 5, 1990.
The order denying the petition for rehearing was entered on April 20,
1990 (Pet. App. 1). The petition for a writ of certiorari was filed on
July 17, 1990. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the rebuttal provisions of a Department of Labor
regulation satisfy Section 402(f)(2) of the Black Lung Benefits Act of
1972, which requires the Department to apply "(c)riteria * * * not be
more restrictive" than criteria applied during an earlier phase of the
black lung program.
2. Whether the statute, if construed to invalidate the Department's
rebuttal provisions, violates the constitutional guarantee of due
process.
STATEMENT
1. The Black Lung Benefits Act of 1972, 30 U.S.C. 901 et seq.,
provides benefits to former coal miners and their survivors for total
disability or death due to pneumoconiosis. Disability claims filed by
June 30, 1973, were considered by the Department of Health, Education,
and Welfare (HEW) under regulations that included a presumption of
entitlement to benefits (20 C.F.R. 410.490) that was available to
certain claimants. Claims filed after that date are considered by the
Department of Labor. Claims filed with the Department of Labor before
April 1, 1980, are subject to Section 402(f)(2) of the statute, 30
U.S.C. 902(f)(2), which provides that the "(c)riteria" applied to those
claims "shall not be more restrictive than the criteria applicable to a
claim" adjudicated by HEW. See Pittston Coal Group v. Sebben, 488 U.S.
105, 108-111 (1988).
In response to Section 402(f)(2), Labor promulgated its own
presumption regulation, 20 C.F.R. 727.203. While there were only two
ways to invoke HEW's presumption (see 20 C.F.R. 410.490(b)(1)), there
are five ways to invoke Labor's presumption. See 20 C.F.R.
727.203(a)(1)-(5). Once the presumption had been invoked, HEW's
regulation specified that the presumption could be rebutted (1) by
proving that the miner was doing his usual coal mine work or comparable
work, or (2) by proving that the miner was capable of doing such work.
20 C.F.R. 410.490(c)(1) and (2). In contrast, Labor's regulation
specifies four rebuttal methods. The first two generally correspond to
the two specified HEW methods. 20 C.F.R. 727.203(b)(1) and (2). The
third and fourth Labor methods allow a party contesting entitlement to
defeat a claim either (3) by proving that the disability or death of the
miner did not arise in whole or in part from coal mine employment or (4)
by proving that the miner does not or did not have pneumoconiosis. 20
C.F.R. 727.203(b)(3) and (4).
2. In 1979, after 17 years of coal mining, Albert Dayton applied for
black lung benefits. Pet. App. 3. A deputy commissioner in the
Department of Labor's Office of Workers' Compensation Programs (OWCP)
initially found him eligible for benefits, but Consolidation Coal
Company, the responsible coal mine operator, contested eligibility and
obtained a hearing before an administrative law judge. Ibid. The ALJ
found that Dayton had properly invoked the presumption of eligibility
for benefits based on his 17 years of coal mining and on ventilatory
test scores showing a chronic pulmonary condition. Id. at 15, 20.
The ALJ also concluded, however, that Consolidation Coal had rebutted
the presumption under Labor's second rebuttal method by proving that
Dayton's pulmonary impairment was not totally disabling. Pet. App.
20-24. In addition the ALJ concluded that the medical evidence showed
that Dayton did not have pneumoconiosis, so that the presumption was
also rebutted under Labor's fourth method. Id. at 24-26. Accordingly,
the ALJ denied Dayton's application for benefits. Id. at 27.
The Benefits Review Board affirmed. Pet. App. 8a-13a. Like the ALJ,
the Board concluded that the medical evidence showed that Dayton's
pulmonary condition was unrelated to coal dust exposure, but was instead
related to his smoking history and other ailments. It accordingly held
that the employer had rebutted the presumption under the fourth method.
Id. at 11-12. The conclusion that Dayton did not have pneumoconiosis,
the Board added, would justify rebuttal under HEW's regulation as well.
Id. at 12 n.2. The Board did not decide whether the ALJ had correctly
concluded that the employer had rebutted the presumption under Labor's
second method. Id. at 10 n.1.
3. The court of appeals reversed. Pet. App. 2a-7a. Relying on its
decision in Taylor v. Clinchfield Coal Co., 895 F.2d 178 (4th Cir.
1990), petition for cert. pending, No. 90-113 (filed July 17, 1990), the
court held that Section 402(f)(2) required Dayton's claim to be
adjudicated "under the less restrictive rebuttal standards" of HEW's
regulation. Pet. App. 5. Under HEW's standards, the court stated,
Labor's fourth method "should not have been available to the coal
operator." Id. at 6. Thus, in the court's view, the finding that Dayton
does not have pneumoconiosis "is superfluous and has no bearing on the
case." Id. at 7 n.*. The court recognized that this result posed an
"interesting" due process question, but decided not to consider the
constitutional implications of its decision because only the Director,
Office of Workers' Compensation Programs, and not the operator had
raised the issue. Id. at 6.
ARGUMENT
We agree with petitioner that the court of appeals erred. The black
lung program provides benefits to coal miners who are totally disabled
due to pneumoconiosis, and neither HEW nor the Department of Labor
intended that its regulations would authorize benefits where, as here,
the claimant does not have pneumoconiosis. Nor was that Congress's
intent in establishing the program or in enacting Section 402(f)(2).
For the reasons discussed more fully in our brief in Pauley v.
Bethenergy Mines, Inc., No. 89-1714, review by this Court is warranted.
/1/ There is an express conflict in the circuits as to the validity of
Labor's third and fourth rebuttal methods, which do not appear on the
face of HEW's regulation, and the conflict may affect as many as 3,500
pending cases. The issue is squarely presented here, as in Pauley,
since the court of appeals held without reservation that Labor's fourth
rebuttal method is invalid.
This case is in an interlocutory posture, which normally counsels
against review, since the court of appeals remanded for further
consideration of whether the employer rebutted the presumption under the
second method. But that issue, which was not considered by the Benefits
Review Board or the court of appeals, is not presented in the petition.
Accordingly, there is no apparent reason why the Court would fail to
address the validity of the additional rebuttal methods set forth in
Labor's regulation, and hence resolve the conflict in the circuits, by
granting review in this case. See R. Stern, E. Gressman & S. Shapiro,
Supreme Court Practice 225-226 (6th ed. 1986), and cases cited therein.
Finally, the court of appeals erred by failing to consider whether
its construction of Section 402(f)(2) raised a serious due process
question. The Director argued that the rebuttal method in issue should
be upheld because a holding of invalidity would lead to the irrational
result that operators would be required to pay black lung benefits to
claimants who do not suffer from black lung disease. Such an irrational
result, the Director suggested, might raise a serious due process
question. The Director plainly had standing to defend the Department of
Labor's regulation in this manner, consistent with the "cardinal
principle" that "if a serious doubt of constitutionality is raised * * *
this Court will first ascertain whether a construction of the statute is
fairly possible by which the question may be avoided." Public Citizen v.
United States Dep't of Justice, 109 S. Ct. 2558, 2572 (1989). That
principle is applicable here and was properly raised by the Director in
the court below. /2/
CONCLUSION
The petition for a writ of certiorari should either be granted or
held and disposed of as appropriate in light of the disposition of
Pauley v. Bethenergy Mines Corp., No. 89-1714. /3/
Respectfully submitted.
KENNETH W. STARR
Solicitor General
DAVID L. SHAPIRO
Deputy Solicitor General
CHRISTOPHER J. WRIGHT
Assistant to the Solicitor General
ROBERT P. DAVIS
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
EDWARD D. SIEGER
Attorney Department of Labor
SEPTEMBER 1990
/1/ We are serving a copy of our brief and of our supplemental brief
in Pauley on the other parties in this case.
/2/ The Director's argument on this point is relevant to the first
question presented in the petition.
/3/ This case involves Labor's fourth rebuttal method, and Pauley
involves the third. We do not believe the two rebuttal methods raise
questions that differ in any material respect. But in order to insure
that the question of the validity of both methods is definitively
resolved, the Court may wish to grant the writ in both cases and to
consolidate them for briefing and argument.