### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 28, 2003 THOMAS K. KAHN CLERK

* Honorable Adalberto J. Jordan, United States District Judge for the Southern District of Florida, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 03-10570

________________________ D. C. Docket No. 01-00368-C V-J-20-HTS CITY OF JACK

SONVILLE , a political subdivis ion of the State of Florida , Plaintiff-Appellee,

versus DEPARTMENT OF THE NAVY, Defendant-Appellant

.

________________________ Appeal from the United States District Court for the Middle Dist

rict of Florida

_________________________ (October 28, 2003)

Before BLACK and FAY , Circuit Judges, and JORDAN * , District Judge. FAY, Circuit Judge:2

The City of Ja

cksonville (“Ci

ty”) originally

brought this action in a

Florida state court against the United States Department of t he Navy (“

Navy”) alleg

ing past violations of stat

e and local air pollu

tion control laws ena

cted pursuant to the Federal Clean A

ir Act, 42 U.S .C. §§ 7401-7671(q) (“CAA”) a

nd seeking punitive penalties for these past offenses. The Navy removed the case to federal district court purs uant to 28 U.S.C. § 1442 (a)(1), and the distri ct court de nied the Ci ty’s motion to rem

and. The Navy

made a mot

ion for judgme

nt on the pleadings, arguing that Congress

did not waive the fe

deral governme

nt’s sovereign im

munity in the CAA fo r these pun itive pen alties. The district c ourt deni ed the Navy’s motion and certified its ruling for interloc utory appeal pursuant to 28 U.S.C. § 1292(b). We gra

nted the Navy’ s petition for perm ission to take the appeal, and

now reverse, con

cluding that Congress d

id not clearly a

nd unequivocally w

aive the United States’ sove reign immunity from punitive penalt ies under the CAA. Additionally, w

e find that rem

oval was not preclud

ed by the CAA a

nd was thus proper under 28 U.S.C. § 1442(a)(1). I. Congress, in enacting the CAA, has given the individual states a great responsibility fo

r ensuring that nation

al air quality s

tandards are atta

ined within their geographical areas. See 42 U.S.C. § 7406. State and local governments are3

required to develop pl

ans that provide for i

mplementa

tion, maintena

nce, and enforcement of national ai r quality standards. See 42 U.S.C. § 7410.In addition, § 7416 preserves the s

tates’ rights to a

dopt and enforce the

ir own standards, so long as they are not less stringent than the national standards. The federal facilities section

of the CAA provide s that federal fa cilities “shall

be subject to, and comp ly with, a ll ... St ate... an d local requir ements, a dminist rative author ity, and process and sanct

ions respecting the control and abatem ent of air pollution in the same m

anner, and to the sa

me extent as an

y nongovernme

ntal entity.” 4

2 U.S.C. § 7418.Thus, the Navy facilities locate

d in Jacksonville are

subject to both the State and Cit

y air pollution re

gulations. The City alle

ges that beginning in 1996 a nd continuing through 2001, the Navy had violate

d various state and local air pollution regul ations. These allegations include the following: exceedance of sulfur limiting standards, failure to comply w

ith vapor pressure r

equirements f

or various solvents, pressure drop range violations, f

ailure to compl

y with testing re

quirements, a

nd record keeping violations. Of these alleged violations, the City does not claim that any are continuing in nature. Nonetheless, the City filed a co mplaint in state

court in March 2001, seeking

punitive penalties up t

o $10,000 per occurr

ence for each pas

t violation. As am

ended, the com

plaint includes seven c

ounts alleging over 2504

violations. On April 3, 2001, the Navy removed the case to federal district court pursuant to 28 U.S. C. § 1442(a)(1).The City then f iled a motion to r

emand, arguing that the plain language of the CAA expressly precluded removal under § 1442(a)(1). W

hile this motion w

as pending, the Nav

y filed its own m

otion with the district court for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, alleging la ck of subject m

atter jurisdicti

on. The Navy argued that dism

issal of the case w

as proper because t

he City institute

d this action purely to recover punitive penalties, and Congress did not waive the federal government’s

sovereign imm

unity with rega

rd to punitive penaltie s under the CAA. After oral argument on the is sues, the district co urt denied both motio ns. The district court

found that nothing in the C AA prohibited the N

avy from removing the ca

se to federal cour

t, and that the case

was otherwise pr

operly removed. With respect to the merits, t he district court fo und that the CAA unequivocally wa

ives the United Sta

tes’ sovereign im

munity as to p

unitive penalties for state and local air pollution control violations. Thereafter, the district court certified its ruling on the sovereign immunity issue for interlocutory appeal pursuant to 28 U.S. C. § 1292(b). W e granted the Navy ’s petition to bring t his5

appeal. Although the issue of removal was not certified in the interlocutory appeal, it is proper

ly before this Court because a § 1292( b) appeal brings up the entire district cou rt order. See Moore v. Libe rty Nat’l Life Ins. Co. , 267 F.3d 1209, 1219-20 (11th Ci r. 2001). II. Since the relevant removal statute provides the only basis for federal jurisdiction in this case, we must address this issue first. We review the district court’s denial of

the City’s m

otion to remand de novo

. See Behlen v. M errill Lynch , 311 F.3d 1987, 1090 (11th Cir. 2002). 28 U.S.C. § 1442(a)(1) had traditionally pr

ovided for rem

oval to federal cour

t for actions involving officers of the United States,

and in 1996 Congress am ended § 1442(a)(1) so

that it now also authorizes removal by the Unit ed States and its agen cies. See 28 U.S.C. § 1442(a)(1). It w

as pursuant to § 1442(a) (1) that the Navy removed the ca

se against it to federa

l district court. T

he City, howe

ver, claims t

hat § 7604(e) of the CAA implicitly prohibits removal in this instance. We find no congressional intent, either in the language of § 7604(e) or in the legislative history, to support this contention. With regard to the

merits of this case, the Navy has claimed the

defense of sovereign imm

unity, and thus it is exactly the ty pe of action that Cong

ress6

intended to be resolve

d in federal court.In enacting the 1996 a mendments t

o § 1442(a)(1), Congr

ess recognized that

“federal ag

encies have had to defend themselves in state court, despite important and complex federal issues such as preemption and soverei gn immunity.” H.R. Rep. No. 104-798, at 20 (1 996). Congress’ purpose

was clearly

to provide a federa

l forum for the

sovereign immunity issue at the heart of thi s case. See S. Rep. No. 104-366, at 30-31 (1996), reprinted in 1996 U.S.C.C. A.N. 4202, 4210- 11 (“This sect ion fulfills Congress ’ intent that questions concerning the ...scope of Federal i mmunity ... be adjudicated in Federal Court.”). Despite this clear

congressional intent,

the City contends

that a set of 1977 amendment

s to the CAA, foun

d in 42 U.S.C. § 7 604(e), impli citly prohibit removal in act

ions by State and local governme nts against the Unite

d States or one of its agencies. T

he language of § 7604(e

) on which the City

bases its argum

ent reads as follows:

Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any Sta te, lo cal, o r inte rstat e auth ority from– (1) bringing any e

nforcement a

ction or obtaining any judicial r

emedy or sa

nction in any Sta

te or local court... against the United States ... under State or local law respecting control a

nd abatement of

air pollution.7

42 U.S.C. § 7604(

e). As is appare

nt from the above

language, Congress

does not explicitly address the issue of removal in § 7604(e). The City argues, however, that unlike 28 U.S.C. § 1441, which provides for removal in instances where there is original jurisdic

tion in federal cour

ts, there is no langua

ge in § 1442 requiring Congress to “expressly” ov erride § 1442 removal in p articular circumstances. Compare 28 U.S.C. § 1442 with 28 U.S.C. § 1441( a) (“Except

as otherwise expressly provided

by Act of Congress, any civil action ... m ay be removed”) (emphasis adde

d). Though the requ

irement to “

expressly provide

” is not contained within § 1442 (a)(1), in order to find that § 7604(e) precludes rem oval in this type of acti

on, we must at

least find Congress’ intent to be “cl ear and manifest.” See Patel v. Quality Inn S. , 846 F.2d 700, 704 (1 1th Cir. 1988) (notin g that repeals by

implication ar

e disfavored and so to

find a repeal by

implication Congress’ intent must be clear and manifest). The City clai

ms that the plain

language of § 7604(e)

unequivocally demonstrates Congress’ intent to p reclude remo

val. To support this argument, the City relies on th

e Ninth Circuit’ s decision in California ex rel. Sa cramento Metro. Air Quality Mgmt. Dist. v. United States , 215 F.3d 1005 (9th Cir. 2000). In Sacramento , the Ninth Circuit examined the language of § 7604(e) set forth above, particularly t

he language authoriz

ing local governm

ents to “obtain” remedies and8

sanctions in stat e court against the Un ited States. See id. at 1011. The Sacramento court found that unles s § 7604(e) preclude d removal, pla

intiffs could not be guaranteed the

right to “obtain”

judicial rem

edies and sanctions in state
court. See id. The Ninth Circuit also reasoned that § 7604(e) indicates th at a plaintiff’s right to obtain relief in state court is not to be restricted by “any other law of the United States.” See id. The court found that “any other law” included the removal statute. See id. We respectfu lly disagre e with the Ni nth Circui t’s reasoning. At the time these amendments to the CAA were written in 1977, the § 1442(a)(1) removal statute did not authorize the federal government or its agencies to remove actions to federal court. Thus, we doubt that Congress in 1977 intended to preclude rem

oval by the Unite

d States when sued pu

rsuant to § 7604(e) w

here it had not even contem

plated the authoriza

tion of removal

by the federal

government until it amended § 1442(a)(1) in 1996. We cannot find a “clear and manifest” intention in the plain language of § 7604(e) to preclude removal in this action. The plain language clearly enables state and local gover

nments to enforce local air pollution regulations in state courts. Nothing, h

owever, in this pla

in language prevents t

he United States f

rom removing these a

ctions to federal court. “The courts are not at libe rty to pick and choose among cong

ressional enactm

ents, and when two

statutes are capa

ble of co-1 We reject as misplaced the Ninth Circuit’s analysis regarding the r ule of statutory construction. The Ninth Circuit f

ound that the “spe

cific” provision

of § 7604(e) cont

rols over the “g

eneral” provision of § 1442(a)(1). See Sacramento , 215 F.3d at 1013. This analysis would only be appropriate if the two statutory provisions were in conflict. Because the re is no conflict between the two provisions, there is no need to determine which “controls.” 9 existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (19 74). The Ninth Ci rcuit claimed

that it was giving ful

l effect to both § 7604(e) and § 1442( a)(1), yet i

t found that § 7604(e) p

recludes the application of the re

moval statute to state and local act ions enforcing local

air pollution laws against the federal government. By this interpretation of § 7604(e), however, the Sacramento court was actuall y only giving pa

rtial effect to th

ese provisions. To the contrary, we find that the plain language of these two statutory provisions do not conflict 1 and accordingly give them both ful

l effect: state a

nd local governme

nts may brin

g enforcement

actions in state cour

ts pursuant to § 7604(e) and the United States may then remove these actions so long as the federal government com

plies with the requi

rements of § 1442 (a)(1). Such r emoval is optional, not mandato ry. The City, however, contends t hat the legislativ e history of the CAA supports the conclusion that Congress unequivocally intended to preclude removal in actions brought agai

nst the United State s pursuant to § 7604(e). The legislative10

history does indicate Congress’ int ent to provide greate

r assistance to the s

tates in enforcing local air p ollution laws agai nst federal facilitie s. See H.R. Rep. No . 95- 294, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1079. Congress was confronted with fe

deral facilities resisting full com pliance of local ai

r pollution laws, and it there

fore intended to expl

icitly make

federal facilit

ies subject to these laws. See H.R. Rep. No . 95-294, at 197-200.It also intended to en able state and local authorities to bring judicial act ions in state or local

court pursuant to stat

e or local law. See H.R. Rep. No . 95-294, at 201. T here is nothing, how

ever, in any of this legislative histor

y that gives any

indication that Congr

ess intended to preve

nt removal of the se actions to feder al court, especia

lly when im

portant federal is sues, such as sovereign im

munity, m

ust be resolved. In fact, the legisla tive history of the 1977 amendm

ents contains explici

t evidence that Congr

ess did not intend to prohibit removal. See H.R. Conf. Rep. No. 95-564, at 13 7 (1977), reprinted in 1977 U.S.C.C. A.N. 1502, 1518.Congress deleted a provision in the final v ersion of the 1977 amendments that would have barred removal of suits against federal facilities to federal courts. See H.R. Conf. Rep. No. 95-564, at 137. We disagree with the Ninth Circ

uit’s assumpti

on that had this language been included, it w

ould have simply been redundant

. See Sacramento , 215 F.3d at 1012. Such an assumption is directl y contrary to the clear instruc tions of the Supreme Cour t.11

“Where Con

gress includes lim

iting language in an ea

rlier version of a bill but deletes it prior to e

nactment, it m

ay be presum

ed that the limit

ation was not intended.” Russello v. United States , 464 U.S. 16, 23-24 (198 3). The City then calls this Court’s attention to particular language in the Clean Water Act (“

CWA”), whic

h was enacted the s ame year as the CAA, and w

hose language is ident ical to the CAA in many respects. See H.R. Conf. Re p. No. 95- 830, at 93 (1977), reprinted in U.S.C.C.A .N. 4424, 4468. T he CWA expressly authorizes removal of acti ons against the Uni ted States. See 33 U.S.C. § 1322(a). This provision in the C

WA, however

, does not grant a ri

ght of removal,

for the substantive right of r

emoval is found in

§ 1441 et. seq. ; rather, this prov ision is merely a n express intent not to p

reclude the alrea

dy existing right.The absence of this express language in the CAA preserving the right of removal cannot provide a basis to preclude removal without any express affirmative support indicating that such is the intent of Congress. After examining the legis lative histories o f § 1442(a)(1) and § 7 604(e), we find no clearly expressed congressional intent indicating that these two statutory provisions cannot eac

h be given full effe

ct. Congress’ i

ntent to enable state

and local governme

nts to enforce local

air pollution laws in

state courts does not conflict with Congr

ess’ intent to give f

ederal agencies t

he option of remo

ving2 We recognize tha t it remains to be de

cided whether th

e requirement of

a federal defe

nse also applies to removal by the United States or one of its agencies. See Parker v. De lla Rocco, Jr. , 252 F.3d 663, 665 n.2 (2d Cir. 2001). However, we need not make a determination regarding thi s is sue as t he N avy i n th is c ase h as cl earl y ass ert ed t he fe dera l de fens e of s ove rei gn im mun ity. 12 appropriate cases

to federal court.It is clear that Congress intended to m ake it possible for federal courts to resolve issues like sovereign immunity. Cases removed under § 1442(a)( 1) ordinarily assert suc h a defense. See Magnin v. Teledyne Continental Motors , 91 F.3d 1424, 1427 ( 11thCir. 1996) (finding that in order for a state court action against a federal offic er to be remova ble, there mu

st be an assertion of a federal defense). 2 Thus, although § 7604 contemplates sta te and local governm

ents enforcing loca

l air pollution laws i

n state courts, if t

here is a federal issue inv

olved such as sovereig

n immunity

, Congress recogni

zed that the wholly local na

ture of the action di sappears. In this i nstance, pursuant t

o Congress’ intent in enacting § 1442(a)(1), it is appropriate for the case to be heard in federal court. Whereas § 7604(e

) does not unequivocall

y prohibit rem

oval, § 1442(a)(1) explicitly and una

mbiguously give s the federal gover nment the right t

o remove actions in which they

are named as a defendant to fede ral court. Despi

te Congress’ intent t

o authorize enforcement of local air pollution laws in

state courts, we find no intent in the legislati ve history or pla

in language of § 7604(e

) to preclude removal. Congress has demonstrated in other statutes that it can13

unequivocally preclu de removal in certain inst ances if it chooses. See Breuer v. Jim’s Concrete of Brevard, Inc. , 292 F.3d 1308, 1310 (11th Cir. 2002) ( citing 28 U.S.C. § 1445; 15 U.S.C. § 77v( a); 15 U.S.C. § 3612), aff’d , 123 S.Ct. 1882 (2003). Neverthe

less, there is legi slative history t hat demonstrate s that Congress expressly refused to do that here. See H.R. Conf. Rep. No. 95-564, at 13 7. Accordingly,

we conclude that the

Navy properly

removed this ac

tion to the federal district court pursuant to § 1442(a)(1), and we therefore have subject matter jurisdiction to hear the merits of this case. III. The City is see

king punitive penalties

for the Navy’ s alleged past violations of local air pollution laws. The Navy concedes that had the City alleged continuing

air pollution violation

s, the federal gov

ernment would b e subject to coercive sanctions,

such as an injunctio

n or coercive fine s, under the CAA . The City, however

, makes no alle

gation of any cont

inuing violations, and so only seeks punitive penalties fo

r the past violations.The Navy cla ims that it is not s

ubject to these penalties as a

matter of law

, as Congress has not

waived the United States’ sovereign immunity from punitive s anctions under th e CAA. The City m

aintains that punitive penalties are nec essary for ef fective enforcement of local air pollutio n laws, and the Cit

y encourages thi s Court to find14

a waiver in the sta

tute on this basis. H

owever, even wi

thout the availability

of punitive penalties, federal facility compliance ca

n still be accom

plished through the use of coercive sanctions, such as injunctions and coercive fines. Moreover, the Supreme Court rejected a similar argum

ent made by

the state of Ohio ar

guing that coercive fines are not a sufficient det errent under the CWA:

to say that ...

‘compliance

cannot be... ac

complished’ without such [coerc

ive] fines is to as sume that withou t sanctions for past co

nduct a federal poll

uter can never be brought into future com

pliance, that an a

gency of the National Government would defy an injunction backed by coercive fines and even a threat of personal commitm ent. The position se

ems almost

to ignore the fact that once such fines start running they can be every dollar as onerous as t

heir punitive counter

parts; it could be a very expensive mistake to plan on ignoring the law indefinitely on th

e assumption that

contumacy would be cheap. United States Dep’

t of Energy v. Ohi

o , 503 U.S. 607, 625 (1992). In order for this Co

urt to find a waiver

of sovereign im

munity with

regard to punitive penalti es, it must be unequivo cally expressed in the s tatutory text. See Lane v. Pena , 518 U.S. 187, 192 (1996). Any waiver of im

munity m ust be strictly construed in favor of

the sovereign, and i

t cannot be enlarged

beyond what the statutory language all ows. See id. See also United State s Dep’t of Energy

, 503 U.S. 607 at 615. Moreover, wher e a waiver would a

uthorize paym

ents from the15

federal treasur

y, as the City

claims the wa

iver in the CAA doe s, it “mus t extend unambiguously to such monetary claims. ” Lane , 518 U.S. at 192 . It is pursuant to these above principle s that we conclude t hat neither the fed

eral facilities s ection of the CAA, 42 U.S.C. § 7418(a), nor its citizen suit provision, 42 U.S.C. § 7604(e), clearly and une

quivocally waiv

e the United State s’ sovereign im munity from punitive penalties. A. The City firs

t claims that the

federal facilit

ies provision of the CA

A, 42 U.S.C. § 7418(a

), waives the Un

ited States’ sove

reign immu

nity with regar

d to punitive penalties. The relevant lang uage of the federa

l facilities provisi

on reads as follows: Each departm ent, agency,

and instrumenta

lity of the executive, legisla

tive, and judicia

l branches of the Federal Governm

ent (1) having juri sdiction over any property or fa

cility, or (2)

engaged in any ac

tivity resulting, or whic

h may resul

t, in the discharge of air pollutants, and each officer, agent, or employee thereof, shall be subject

to, and compl

y with, all Federal

, State, interst

ate, and local re

quirements, administrative authority, and process and sanctions respecting the

control and abate

ment of air pol

lution in the same m

anner, and to the sa

me extent as an

y nongovernmental

entity. The p

receding sentence

shall apply (A) to an

y requirem

ent whether substan

tive or procedural (includi

ng any recordkeeping or reporting requirement,

any requirem

ent respecting perm

its and any3 The Sixth Circuit, however, has found that Congress waived the federal government’s

sovereign immunity from punitive penalties under the CAA in the citizen suit provision, 42 U.S.C. § 7604(e). See United States v. Tenn. Air Pollution Control Bd. , 185 F.3d 529 (6th Cir. 1999).

4 Indeed, the CWA federal facilities provision was written to conform to the CAA federal facilities provision. See H.R. Conf. Rep. No. 95-830, at 93 (1977), reprinted in 1977 U.S.C.C.A.N. 4424, 4468. The relevant language of the CWA federal facilities provision provides: Each department, agency, or instrumentality of the executive, legislative, and judicial bran ches of t he Fe dera l Go vern men t (1 ) hav ing j uri sdi cti on o ver a ny pr ope rty o r fac ili ty, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee the reof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements,

administrative a

uthority, and proce

ss and sanctions respe

cting the control and abatement of water pollution in the same manner, and to the same extent 16 other requirem

ent whatsoever),

(B) to any req

uirement to pay a fee or charge imposed by any State or local agency to def ray the costs of its air po llut ion re gula tory p rogra m, (C) to the exercise of any Federal, State, or local administrative authority, and (D) to any process and sanction, whethe

r enforced in Federal, State, or local courts, or in any

other manner

. This subsecti

on shall apply notwithstanding any immunity of such agencies, offic

ers, agents, or

employees und

er any law or rule of law. No officer, age nt, or employ

ee of the United States shal

l be personally l

iable for any c

ivil penalty for which he is no t otherwise liable. 42 U.S.C. § 7418(a) (emphasis added). Neither the United States Suprem e Court nor any other circuit court has yet addressed whether § 7418(a) waives the federal government’s sovereign immunity from punitive penalties 3 ; howe ver, t he Sup reme Court has addressed this issue in the context of the CWA federal facilities provision, 33 U.S. C. § 1323(a), whi ch has similar,

if not identical, la

nguage to the relevant portion o f the federal facilities provision of the CAA. 4 See United Statesas any nongovernmental entity including the payment of reasonable service char ges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or re porting requirement, any requirement respecting permits and any other requirement whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law.... No officer, agent, or employee of the United States shall be

personally liable for a

ny civil penalty arisi

ng from the performance of his

official duties, for which he is not otherwise liable

, and the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court. 33 U.S.C. § 1323(a) (emphasis added).

5 The Supreme Court also held that there was no waiver of sovereign immunity from punitive penalties under the federal facilities provision of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.

§ 6961, as well as no

waiver from thes

e penalties under

the citizen suit provisions of both the RCRA, 42 U.S.C. § 6972(a), and CWA, 33 U.S.C. § 1365(a). See United States Dep’t of Energy , 503 U.S. at 611. Since United States Department of Energy , at least two district courts have followed the Supreme Court’s reasoning to find that the CAA also does not waive sovereign immunity with regard to punitive penalties. See California ex re l. Sacramento Metro. Air Quality Mgmt. Dist. v. United States , 29 F. Supp. 2d 652 (E.D. Calif. 1998), vacated for want of jurisdiction, 215 F.3d 1005 (9th C ir. 2000); United States v. Ga. Dep’t of Natural Res. , 897 F. Supp. 1464 (N.D. Ga. 1995). 17 Dep’t of Energy v

. Ohio , 503 U.S. 607 (1992). In United States Depar

tment of Energy, the Supreme Court found that although the CWA federa l faciliti es section waived the federal go vernment’s sovereign imm

unity with rega

rd to coercive sanc

tions, the language di

d not unequivocally wa

ive immunit

y from punit

ive penalties. 5 See id. at 627. The Supreme Court rejected Ohio’s claim that since the federal government was subject to “sanctions” under 33 U.S.C. § 1323(a), this necessarily included punitive sanctio ns. See id. at 621. The Court f ound that the term

sanction “is spacious enough to cover not only what we

have called punitive

fines, but18

coercive ones as w

ell, and use of the t

erm carrie s no necessary i mplication that a reference to punitive fines is intended.” Id. at 621. Thus, to de termine what

the term “sanction” refers to in the C AA federal facility provisio n, 42 U.S.C. § 7418(a), we must examine its con text. See id. at 622. As is the case in the CWA federal faciliti

es provision, 33 U. S.C. § 1323(a), each time the word “sanction ” appears in § 7418(a) of the CAA, it is within the phrase “process and sanction[s].” The Supreme

Court found it significant that “sanct ion” was paired w

ith “process” because “ ‘ [p]rocess’ no

rmally re fers to the procedur

e and mechanic s of adjudication and the enforcement of decrees or orders that the adjudicatory process finally provides.” Id. at 623. The pairin g of “process”

and “sanctions” can be contrasted w

ith the absence of the

word “sanctio

ns” when the text spe

aks of subjecting the federal government to substantive “requirements.” See 42 U.S.C. § 7418(a); United States Dep’ t of Energy , 503 U.S. at 623 . This is significa nt because substantive “

requirements, ” as opposed to “pr ocess,” may

be enforced by punitive penalti es. See United States D ep’t of Energy , 503 U.S. at 623. Thus, we follow the Suprem

e Court’s reason

ing and conclude that be

cause the text uses t

he term “sa nction” in the context of enforcing “ process” as opposed to

substantive “requirem

ents,” there is “

good reason to infer t

hat Congress was usi

ng ‘sanction’ in its coercive sense, to the exclusion of punitive fines.” Id. at 623.6 The City fur ther notes that alt

hough Congress

omitted this clarif

ying lang uage in the CAA,

it did not also omit the preceding phrase stating that “[n]o officer, agent, or employ ee of the United States shall be personally liable for a civil penalty... f or which he is not otherwise liable.” 42 U.S.C. § 7418(a); 33 U.S.C. § 1323(a). The City claims that the presence of this language in the CAA is s igni fic ant whe n ta ken toge the r wi th t he ab sen ce of the cla rif ying l angu age. Spe cif

ica lly, the City arg

ues that since Cong

ress only exe

mpted these partic

ular individuals fr

om civil penalties, it necessarily did not intend to exempt agencies of the United States. However, if the term “civil penalties” as used in this section refers only to coercive penalties (a nd there is nothing in this language to indicate otherwise), then it is to no significance that Congress left out the clarifying language, as Cong ress already subjected agencies of the U nited States to coercive penalties within th

e language “

process and sanc

tions.” Further,

if Congress inten

ded to 19 The City, how

ever, argues that

despite the alm

ost identical language

found in the federal facilit ies provisions o f the CWA, 33 U.S.C. 1323(a), and the CAA, 42 U.S.C. § 7418(a), there are material differe nces between the two provisions that mandate a diff

erent result. In United States Depar tment of Energy, the S upreme Court did discuss particular languag e in the CWA that is not pre sent in the CAA. The CWA federal facilities provision provides, in relevant part, that “the United States shall be liable only for those civil penalties... imposed by a State or local court to enforce a

n order or the proce ss of such court.” 3 3 U.S.C. § 1323( a). The Supreme Court

found that this language

serves a clarify

ing function in that it makes it apparent that the civil penalties referred to in this section must be limited to coercive sanctio ns. See United States D ep’t of Energy , 503 U.S. at 623 -24. The City argues that the absence of this clarifying language in the CAA federal facilities provision

must lead to the c

onclusion that Congres s did not intend to limit the feder

al government’ s liability to only coercive sanctions

. 6 This language,personally subject officers, agents, and employ ees of the United States to limited coercive sanctions, such as injunctions, but not to coercive fines, it seems sensible for Congress to make this clear with an additional sentence using the narrower term, “civil penalties,” as opposed to the broader term, “sanctions,” as sanctions typically include such things as injunctions as well as penalties, wher

eas the term “civ

il penalties” indic

ates monetary

payment. 20 however, did not se

rve as the basis for

the Supreme Court’s decision in United States Department o

f Energy ; rather, the Cour t found that this langua

ge simply confirmed

the conclusion it had a

lready reach

ed in analyzing th

e phrase “process and sanctions.” Id. at 624. Moreover, the absence of this l

anguage in § 7418(a) of the CAA does not m

ake any kind of a

ffirmative st

atement. For

this Court to find that Congress intende

d to waive the govern

ment’s im

munity from

punitive penalties, there must be an unequivocal statement within the statutory

language itself. See Lane , 518 U.S. at 192. Indeed, the only affirmative and unequivocal language indicating th

e scope of the govern

ment’s im

munity is wi

thin the language we analy

zed above discussing “

process and sanctions .” From this express affirm

ative language, w

e conclude that the f

ederal facilitie s section of the CAA unequivocally

waives the feder

al government’ s sovereign imm unity from coercive sanctions,

but not from puniti

ve penalties. B. The City next contends t hat even if the federal fa cilities section, 4 2 U.S.C. § 7418(a), does not w

aive the United Sta

tes’ sovereign im

munity from

punitive21

penalties, waiver can st ill be found in the citizen suit provi sion, 42 U.S.C. § 7604(e). This subse

ction provides: Nothing in this section shall restrict any right which any person (or class of persons) may have under any st

atute or common l

aw to seek enforc ement of any emission standard or limitation or to seek any other relief (including relief a

gainst the Admin

istrator or a Stat

e agency). Nothing in this s ection or in any ot her law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate author ity fro m– (1) bringing any e

nforcement

action or obtaining any jud

icial remedy or

sanction in any State or local cour t, ... against the Unit

ed States ...

under State or

local law respecting control and abatement of air pollution. For provisions requiring compliance by the United States ... in the same manner as nongovernme ntal entities, see section 7418 of this title. 42 U.S.C. § 7604(

e) (emphasis a

dded). The Navy

argues that this provi sion is not an independent waive

r of sovereign im

munity, but is merely

a savings clause providing only that t

he citizen suit provis

ion does not preem

pt any other ava

ilable remedies. W

ith respect to the fi

rst sentence of this

subsection, we agr

ee with the Navy that it does serve as a s avings clause. See Tenn. Air Po llution Control Bd. , 185 F.3d at 532; Virginia v. United States , 74 F.3d 517, 524 (4th Cir. 1996). See also City of Milwauke

e v. Illinois and Mi

chigan , 451 U.S. 304, 328-29 n.22 (1981) (finding § 1365(e) of

the CWA, wit

h language “virt

ually identical

” as the first22

sentence of § 7604(e) of the CAA, to be a savings clause). We disagree, however, with the Navy’s contention that the second sentence is also only a savings clause. If the second senten

ce of § 7604(e) is sim

ply a savings clau

se, then it would merely be duplicating the first

sentence. This se

cond sentence was a

dded within the 1977 amendments to the C AA. Clean Air Act Amendments of 1977, Pub . L. No. 95-95, § 303(c) , 91 Stat. 685, 772 ( 1977). Prior to the se amendm ents, state and local governm

ents had no reme

dy in state court

s against the United States for violation of loca l air pollution la ws. See Hancock v. T rain , 426 U.S. 167, 195-96 (1976). Thus, this

provision could not have been intended as sim

ply a savings clause, as there

was no local rem

edy to “save

” at the time Congress added these amendment

s. Congress’ inte

nt to make this se

ntence a waiver o f sovereign immunity is clear from

the language providing

that “[n]oth

ing in this section or in any other law of the Unit ed States” shall rest rict any stat e or local g overnment’s right to bring an en forcement action in state court. 42 U.S.C. § 7604(e). Accordingly,

this citizen suit provi sion, along with the f ederal facilitie s section, operat es as a wa iver of

sovere ign immun ity. Although we find that the citizen suit provision, 42 U.S.C. § 7604(e), acts as a waiver of sovereign immunity, we do not find the scope of the waiver to exce ed that found in the federal facilities section, 42 U.S.C. § 7418(a). The City argues7 The City also argues that additional language in this subsection, allowing state and local governments to obtain “any administrative remedy or sanction,” necessarily encompasses punitive penaltie

s. The Sixth Circuit note d that to construe t

his language “

as limited to prospective, coercive action would be to render § 7604(e)(2) virtually meaningless, since administrative agencies are seldom empowered to take prospective, coercive a ction.” See Tenn. Air Pollution Control Bd. , 185 F.3d at 532 n.3. However, since the City does not seek an administrative re

medy in this a

ction, we have no

need to interpre

t § 7604(e)(2), a

s the City contends that a waiver with regard to punitive penalties for a judicial action is to be found in § 7604(e)(1). Non

etheless, it is wor

th noting that the Si

xth Circuit’s reason

ing is merely inferential, and to find a waiver from punitive penalties, the waiver must be clear and unequivocal withi

n the statutory

text.

8 Just as the term “sanction” is “spacious enough to cover not only what we have ca lled punitive fines, but coercive ones as well,” United States Dep’t of Energy , 503 U.S. at 621, so is the word “remedy.” See Black’s Law Di ctionary 1296 (7th ed. 1999) (“The means of enforcing a right or preventing or redressing a wrong.”). 23 that the language in § 7 604(e) allowing the City to obtain “

any judicial r

emedy or sanction” in state co

urt necessarily

includes punitive pena

lties. 7 Specifically

, the City relies on a

Sixth Circuit decis

ion where the court

reasoned that beca

use the phrase “remedy or sanction” is not paired with the word “ process” as in the federal facilities section, there is no basis to conclude that “remedy or sanction” excludes punitive penalties. 8 See Tenn. Air Po llution Control Bd. , 185 F.3d at 534. We respectfully disagree with the Sixth Circuit’s broad interpretation of this phrase, as we must adher

e to the Suprem

e Court’s rationa

le that the phrase “

remedy or sanction,” by it

self, “car ries no necessary

implication tha

t a reference to

punitive fines is intended.” See United States D ep’t of Energy , 503 U.S. at 621. Accordingly,

as the Supreme

Court directed in United States Depar tment of Energy , we must look a

t the phrase “r

emedy or sa

nction” in context. I

n examining9 The Sixth Circuit in Tennessee Air Poll ution Control Board

, as well as the dist

rict court in this case, relied on the word “any” in front of the phrase “remedy or sanction” to support a finding that the citizen suit p

rovision expressly

waives the fede

ral governmen

t’s sovereign im

munity from punitive pena

lties. Nonetheless, the Supreme Cour t did not find the ter

m “any” pa

ired with the word “sanction” to be significant in concluding that the federal facilities sections of both the CWA and RCRA did not waive the federal government’s sovereign immunity from punitive penalties. See United States Dep’t of Energy , 503 U.S. at 622-28. Accordingly, we do not find the term “any” paired with the phrase “remedy or sanction” to be much help in this instance. 24 § 7604(e), there is no language indicating whether the phrase should be read broadly to encom

pass punitive penaltie s or narrowly t o exclude these penal

ties. 9 The lack of any

clarifying lan

guage within the citi

zen suit provision does n ot give this Court the authori

ty to presum

e that Congress inten

ded the broadest conceivable definition of “remedy or sanction.” See Lane , 518 U .S. at 1 92 (“a waiver of the Gov

ernment’s so

vereign imm

unity will be str

ictly construed,

in terms of its scope, in favor of the sovereign.”). R

ather, instead of

presuming a broad interpretati

on of the citizen suit

provision by read

ing it in isolation, w

e will interpret this section “in light of the remainder of the statute of which it is a part.” See Tenn. Air Po llution Control Bd. , 185 F.3d at 534 (suggesting that the federal facilities section of the CAA should be interpreted in light of its conclusion that the citizen suit provi sion waives the Unit ed States’ sover

eign immunit

y from punitive penalties).In this respect, w e turn to the federa

l facilities secti

on of the CAA. The federal facilities pr ovision was written in conjunction with 42 U.S.C. § 7604(e), and both pro

visions discuss the para

meters of loca

l air pollution25

enforcement in state and local co urts. Moreover,

the federal fac

ilities section is referenced wit

hin § 7604(e). As discussed above, the scope of the waiver o f sovereign imm

unity within the f

ederal facilitie s section is limit ed to coercive sanctions. Given th

is finding, without e

xpress intent from

Congress to indicate otherwise, we w

ill not interpret the

broad language of the

citizen suit provision

to provide a larger scop e of waiver of immunity. We have found no affirmative and unequivocal waiver of the federal government’s

sovereign imm

unity from p

unitive penalties wi

thin the statutory

text of either the federal faci lities section or t he citizen suit pro vision of the CAA. Congress is aware

of this unequivocal la

nguage requirem

ent, as it ame

nded the federal faciliti

es section of the RC

RA after the Supr

eme Court in United States Department of Ene

rgyinitially found th

ere to be no express waiver from punitive penalties. Feder

al Facility Co

mpliance Act

of 1992, Pub. L. No. 102-386, § 102, 106 Stat. 1505 (1992). There is now clear and unequivocal language in the RCRA waiving the United St ate’s sovereign immunity from these pun itive fines. See 42 U.S.C. § 6961 ( stating the requirem ents referred to i

n this section include “

all civil and administrat

ive penalties and fin

es, regardless of

whether such penal

ties or fines are punitive or coercive in nature...”). Nonetheless, Congress, though it had the opportunity to do so, did not amend either the CWA or the CAA (which26

contains almost i

dentical language to the CWA) in re sponse to United States Department of Ene

rgy . Accordingly

, we find that the Navy would be su bject to coercive sanctions under the language of the CAA. However, without an unequivocal statem

ent within the statuto

ry language itse

lf, we decline t

he invitati on to find that Cong ress inten ded to waiv e the federa l governmen t’s sovereign imm

unity from p

unitive penalties.

IV. In conclusion, we a

ffirm the dist

rict court’s deni

al of the City’ s motion to remand, and find that the Navy properly rem oved this action to the federal district court pursuant to § 1442( a)(1). We r

everse the distric

t court’s finding th

at the CAA waives the United States’ immunity from punitive penalties, and therefore remand th is case for ent ry of judg ment in fa vor of t he Navy. AFFIRMED in part; REVERSED in part; REMANDED with instructions.