Warren E. Burger: We will hear arguments next in number 19, United States against Marion and Cratch. Mr. Greenawalt, you may proceed whenever you are ready.
R. Kent Greenawalt: Mr. Chief Justice and may it please the Court. This case is on direct appeal from an order of the United States District Court for the District of Colombia, dismissing an indictment on the ground that the government had failed to afford a speedy trial. The government appealed directly to this Court pursuant to the old Criminal Appeals Act 18 U.S.C. Section 3731, under the provision that permits an appeal from a judge decision or judgment sustaining a motion and bar when the defendant has not been put in jeopardy. Appellees were indicted on April 21st, 1970 on 19 counts of mail fraud; wire fraud and transportation of falsely made or altered security. The indictment charges that appellees in operating a home improvement company called Allied Enterprises to fraud the home owners in various respects, including persuading the designed deeds of trust on their homes in promissory notes by falsely concealing the nature of these documents from the homeowners. The indictment charges of the fraudulent scheme continued until February 1967, but the last particular act, mentioned in the indictment, occurred on January 19, 1966. After the indictment, appellee Marion made a motion to dismiss the indictment for failure to afford a speedy trial, which is set out on pages 12-14 of the appendix, claiming that the failure to indict sooner constituted a violation of his rights under the Fifth and Sixth Amendment. On June 8th 1970, Judge Hart considered the motion to dismiss that developed in these proceedings that in February 1967, the Federal Trade Commission had issued cease-and-desist order against Allied Enterprises and Marion. And then in the series of articles in late September and early October 1967, the Washington Post had written about the activities of approximately a dozen home improvement companies which the articles claimed were defrauding the public, particularly and get a variance. The activities of Allied Enterprises were described in one of these series of articles. The articles also indicated that United States Attorney was generally aware of the abuses that it reported and as he planned an investigation. The articles did not indicate that an investigation or to bringing of criminal charges was planned in respect to any specific company or individuals. Either in the summer of 1968, according to Mr. Marion or early in 1969, according to the Assistant US attorney, the records of Allied Enterprises were turned over by Marion to the US Attorney’s office. At the proceedings before Judge Hart, Mr. Jackson, representing Marion argued that given the public knowledge of the activities of Allied Enterprises, the failure to return the indictment until more than four years after the last noted event and more than two-and-a-half years after the articles, violated Marion’s rights to a speedy trial under the Sixth Amendment. Mr. Franco, the Assistant US attorney stated that the Government's position at the motion should be dismissed in the absence of showing a prejudice. He indicated that so far as he knew the reason of indictment that had not been returned sooner was under staffing and a heavy case load. Judge Hart did not write an opinion, he indicated in an oral statement which is set out at Page 39 of the Appendix that in the absence of a justifiable reason for the delay from 1967 in a lightly prejudiced cause there was a lack of speedy prosecution and he granted the motion to dismiss. Appellees did not allege and Judge Hart did not find any specific prejudice to appellee, such as the death of a key witness or the destruction of a particular document. Judge Hart stated that, “The ability to remember to build up in one's recollection, to produce the necessary defense is bound to have been seriously prejudiced by the delay.” This case presents the question whether in this kind of complex fraud prosecution, a defendant’s rights to a speedy trial or due process are violated per se by a lapse of two-and-a-half years between the time it is assumed that the prosecutor’s office has knowledge of complaints that might conceivably lead to a criminal prosecution, a lapse of two-and-a-half years between that time and the return of the indictment. I say that the case poses the questions of whether the lapse is per se a denial of constitutional rights because there is no showing on this record that defendant suffered any particular prejudice or that the Government acted purposefully, arbitrarily or even negligently in not bringing the case before the grand jury sooner. We believe that there is not nor should there be such a per se rule. Lapses in time between offense and formal accusation are, as this Court said in United States versus Ewell, governed primarily by the statute of limitation. A potential defendant is further protected by the rule that guilt must be proved beyond a reasonable doubt. A heavy burden on the Government that will ordinarily become greater as the time between offense and trial increases. I shall argue that the Sixth Amendment does not apply before any formal accusatory action is taken by the Government that the Due Process Clause may reach certain exceptional circumstances in which time has elapsed before a formal accusation, but the due process is not denied unless there is substantial and special prejudice to a potential defendant and serious misconduct by the Government. That neither substantial prejudice nor serious misconduct have been alleged here, much less shown and that therefore the judgment should be reversed and the indictment reinstated.
Potter Stewart: Mr. Greenawalt there is the general five year statute limitation.
R. Kent Greenawalt: Yes, yes Your Honor.
Potter Stewart: And that was --
R. Kent Greenawalt: That was applicable.
Potter Stewart: General statute was applicable to this case.
R. Kent Greenawalt: Yes, yes.
Potter Stewart: Did it not use to be three years?
R. Kent Greenawalt: Yes, I think originally it was two years and then it was made three years and then made five years.
Potter Stewart: How long ago was it made five years, do you know?
R. Kent Greenawalt: I do not recall Your Honor. I believe that is in the brief but --
Potter Stewart: And then there are some special statutes and limitations I think for some criminal, federal criminal offenses.
R. Kent Greenawalt: Yes, I think some many types --
Potter Stewart: And I think in homicide there is no statute limitation.
R. Kent Greenawalt: That is correct. For homicide and some, I think the treason that in other words, in some tax offenses the statute of limitation is six years. There is a preliminary question of appealability in this case. I believe our reply brief and the original brief indicate clearly why appellee’s motion before Judge Hart was a motion in bar within the meaning in Section 3731, and I did not plan to discuss that point further. Appellees suggest that the constitutional questions need not be reach here because Judge Hart made a discretionary ruling under Rule 48 (b) of the Federal Rules of Criminal Procedure. Again, I think the record and briefs indicate clearly that the rule was not and could not have been the source of this dismissal. And so, I move now to the constitutional issues. In our view, the Sixth Amendment does not apply until the Government has taken some formal accusatory action against the potential defendant. In terms, it states that the accused shall enjoy the right to a speedy and public trial. It does not relate to the speed with which one has made an accused. Appellees suggest that the time one becomes an accused, should be moved back for speedy trial purposes to some point before a formal action, such as when the government focuses on a potential defendant or has sufficient evidence to indict. Such an interpretation is unwarranted by language or history or any prior decisions of this Court and it would be most unwise for reasons like those which persuaded the Court to refuse to draw a similar line in Hoffa versus United States. There are many reasons why a prosecutor may decide not to prosecute. Perhaps, in the typical instance, it is known that a crime has been committed, but the prosecutor thinks he does not have enough evidence to achieve a conviction against a particular potential defendant. But there are many other reasons for not going forward, especially in this kind of complex prosecution for fraud. Not all frauds are criminal and the prosecutor may doubt it. The scheme involves falls on the criminal side of the line, where that he can establish to a jury their falls on a criminal side of the line, or he may doubt even though he is quite certain, he could get a conviction of whether the damage done to the public is great enough to justify using an available criminal sanction, or if there is a state offense he may wait to see if a state prosecution is going to go forward. If he is sure that some company representatives have participated in a fraud, he maybe unsure which officials of the company are in fact culpable and which he can prove to be culpable to the jury's satisfaction. Putting this altogether, the prosecutor’s decision, whether to prosecute a particular person may not be made until an investigation is progressed far beyond the point of focus or sufficient evidence to indict. We do not believe that a Court can reconstruct in retrospect when either of those points is reached, and even if it could, it would not make sense to require indictment soon after either of those points have been reach and before an investigation is been completed. Suppose for example, that in this kind of case probable cause exists on the basis of consumer complaints in documentary evidence, that the United States Attorney judges that a conviction cannot be obtained unless there is an inside witness who is willing to testify to the fraudulent plan as a whole and can also testify the conversation that have been taken place in the --
Thurgood Marshall: Mr. Greenawalt.
R. Kent Greenawalt: Yes, Your Honor.
Thurgood Marshall: I hate to interrupt you but was there any of this before Judge Hart,  any of this argument? As I read it, all of the -- I hate to use the word defense, but the only explanation the Government gave was they were understaffed.
R. Kent Greenawalt: That is correct Mr. Justice Marshall.
Thurgood Marshall: So, he did not have the benefit of any of this?
R. Kent Greenawalt: Let me make two points in response to that Mr. Justice Marshall. First, the argument I am making now is not an argument about this particular case, but an argument as to whether in general, the Sixth Amendment should be read to say that a speedy trial -- that one becomes an accused for speedy trial purposes at some point before formal accusatory action is made by the Government. And so what I am making now is a general argument about the Sixth Amendment. In terms of this particular case, I think there are two facts that -- in terms of as far as record before Judge Hart. One is that Mr. Franco who argued before Judge Hart in these proceedings was not a member of the US Attorney’s office at the time most of this took place and he frankly admitted that he really did not know what had happened in terms of this particular investigation, but that he had been told there was understaffing in a very heavy case load. The second point is that the Government took the position, I think quite justifiably on the basis of any decisions of this Court and of the great majority of other Federal Courts, took the position that unless there was some specific prejudice. Appellees here are not even alleged something that would rise either to a violation of the Sixth Amendment or to the Fifth Amendment. And so, he relied primarily on that failure to show any specific prejudice in arguing before Judge Hart. So, I think that he did not think it was relevant assuming if there was not a purposeful delay, what the reasons for delay were and I think that is part of the explanation why that is not more fully developed in those proceedings.
Speaker: May I ask you, is the Government going so far as to suggest that if formal action is taken before the statute of limitation runs out, then there can not be a violation of the Sixth Amendment?
R. Kent Greenawalt: Yes, yes it would be a question of defining what formal accusatory action meant.
Speaker: Well, let us assume it, will either information or indictment, in a five year statute, is the Government suggesting that if an indictment or an information is brought down on the day before the statue runs out, then that -- there can then be no basis for a claim of the Sixth Amendment violation?
R. Kent Greenawalt: No, we can see that the Sixth Amendment is applicable to some formal accusation before an indictment, such as a complaint, an arrest followed by incarceration.
Speaker: What I am trying to get here at is no formal actions is taken at all the day before the --
R. Kent Greenawalt: Yes, that is our contention that the Sixth Amendment has no application.
Speaker: But, conceding that there maybe a Fifth Amendment?
R. Kent Greenawalt: Yes, we do believe the Due Process Clause covers --
Speaker: Now this depending however on the showing of prejudice?
R. Kent Greenawalt: Yes, Your Honor.
Speaker: Only on that basis.
R. Kent Greenawalt: Our contention is that in most kinds of cases what must be shown is both specific prejudice and serious government misconduct. Now, I think it is a little more complicated in the sense that if the government's conduct is really grouse, then perhaps the showing of prejudice might not have to be so great. If the showing of prejudice is tremendously great, it might even be conceivable that no matter how good the government's explanation, a prosecution could not go forward.
Speaker: But, this in any event, would be exclusively a due process basis?
R. Kent Greenawalt: Yes, Your Honor.
Speaker: And not a Sixth Amendment?
R. Kent Greenawalt: Yes, Your Honor.
Byron R. White: I suppose you are going to get to that.
R. Kent Greenawalt: I am, yes, Mr. Justice White. To return very briefly to the example that I was suggesting which is that probable cause exists, that the the prosecutor does not think he can successfully prosecute without an inside witness. Then let us suppose two years later, but within the statute of limitation, an inside witness is willing to testify. Is prosecution to be barred simply because probable cause existed two years earlier? We do not believe there is any good reason to distinguish cases in which the prosecution has little or no evidence from those as which there is probable cause, but insufficient evidence to convict in which the prosecutor will decide not to go forward. If indictments are brought whenever a probable cause exist, the result would be a great waste of resources in the criminal process, and more important, very serious misfortune to those persons who were indicted but never tried and convicted, because the government indicts because it realizes that this is the probable cause stage and then decides it does not have enough evidence to convict and dismisses the case. Well, that is a serious misfortune to the fellow that is indicted. Mr. Justice Brennan, in a concurring opinion Dickey versus Florida suggested a somewhat different point, that is the possibility that one might become an accused “after the government decides to prosecute and then have sufficient evidence for arrest and indictment.” It is our position that that point also is too difficult to determine. That is a tentative decision to prosecute, and is typically subject to change particularly in this kind of case as an investigation unfolds. If that is thought to be the standard however, there is no reason to suppose on this record that a decision was made to prosecute these appellees until the case was -- shortly before the case was brought to the grand jury. And that is on this record, you are going to find that is suggested standard, there is no reason to think that Sixth Amendment is implicated in this case. I turn now to the Due Process Clause. It is our position referring extraordinary circumstances of the statute of limitation sets the time limit in which the government can act against the potential defendant. We do however believe, that in certain exceptional circumstances, the Due Process Clause may bar a conviction. For example, if the government purposely delays, some ill witness to be known to be favorable, the defendant has a chance to die and the lack of that witness is prejudicial, we would believe that that would appropriately constitute a denial of due process, but absolutely precluding conviction for an offense is a drastic remedy, much more drastic than is involved in the implementation of most other constitutional rights, and we think it should be involved only in such exceptional circumstances. Any lapse in time between offense and trial may affect a trial to some extent. The defendant’s primary protections, as the Court has indicated and as I stated it earlier, are in the statute of limitations and the reasonable doubt requirement. It is not contended by appellees in this case that if the government had simply remained ignorant about its activities that trial had might be afforded would be a denial of due process, nor did they contend that they have suffered any greater prejudice than would defendants in a similar situation where the government had remained ignorance for three years after the offense had taken place. Indeed, the possibility of prejudice here could be a bit less. Essentially, their claim comes down to this, because the government had awareness of some complaints and was involved in cases of higher priority, we were denied due process even though the government has been totally ignorant of what we were doing, we will not be denied due process. We do not believe the right to a fair trial turns on such a distinction only if delay is oppressive and purposeful and causes specific prejudice should due process be held to bar an indictment within the statute of limitation. We further think that if the Due Process Clause is read to entail nice distinctions of time, subtle degrees of prejudice and the reasonableness of the prosecutor's ordering of priorities in this area, the courts will be involved in time consuming collateral proceedings which will help to defeat the overall objects rather than help it of an expeditious determination of guilt or innocence. Turning out to the showing in this case, appellees have made no persuasive showing of prejudice. Theories in Ewell are claimed as insubstantial, speculative and premature. They have not suffered from the incarceration and the anxiety in concern that formal accusation they bring. The government's case, it is said, is based on large part on documents as to these elapse in time is irrelevant. Insofar as testimony make in turn specific conversation between salesman of the company and homeowners, it is highly unlikely that the salesmen who have many transactions each day would remember specific conversation, months or even weeks after the conversation. What company officials would recall would be their normal motive business operation. And there is no reason to suppose that that has been forgotten here, especially since appellees have had abundant notice that their operations were subject to attack first to the F.T.C. inquiries, then to the newspaper articles, then to a series of civil complaints, and finally, from turning over the records of the United States Attorney. It is incredible to suppose that they have not carefully considered and reconsidered how they carried on their business. Moreover, they are free to call any of the homeowner clients they have had and do not think they have been defrauded. It is even possible that there will not be a substantial discrepancy as to the crucial fact that this case goes to a trial,, since Mr. Jackson indicated on Pages 28-29 of the Appendix that at least about many of the basic operations of the company, there was not a dispute as to the fact. If appellees have suffered prejudice, that can be demonstrated at their trial and in a very small number of cases in which convictions have been overturned because of a lapse in time before arrest or indictment. The Court has made that determination with the record of trial in front of it, such as in the Ross case. Secondly, appellees have not subjective, much less demonstrated, the kind of government delay, which should be held to be unjustifiable. We have to suppose on the basis of the sparse record that the limited staff was initially focusing on complaints concerning companies deemed to greater social danger and that later considerable time was spent in developing this complex case. Fraud cases of this kind, and a number of the Court of Appeals have recognized this, are notoriously difficult and time consuming to develop. A Court simply is not in position of assessing whether an ordering of priorities is desirable. Unless there is some special reason to suppose that this ordering is being performed in an arbitrary way, the Court should not consider pre indictment lapse caused by limited resources to be a form of unjustifiable delay. If this position is rejected and an examination is to be made of the ordering of priorities, which we do not think is necessary, then surely it should be done in a full hearing which will allow development in this case that the facts concerning possible prejudice and the government's ordering of priorities. But it is essentially our position that the allegations here do not even make out a claim of constitutional violation and we thus contend that the case, the judgment should be reversed and the case should be remanded, so that the indictment maybe reinstated. Mr. Chief Justice, I would like to reserver the remaining of my time for rebuttal.
Warren E. Burger: Very well, you have about six minutes I think. Mr. Jackson.
Thomas Penfield Jackson: Mr. Chief Justice and may it please the Court. On June 8th, 1970 District Judge George Hart dismissed the indictment of Marion and Cratch using his words for lack of speedy prosecution in this case. That formula of words can either be a paraphrase of the Sixth Amendment requirement of a speedy trial; it could be an exercise of the inherent discretionary power of the Court to dismiss for want of prosecution; or it could conceivably have been an exercise of power conferred especially upon the Court by Rule 48 (b) conferring power upon the District Judge to dismiss for unnecessary delay in presenting the charge to the grand jury. With the exception of the jurisdictional issue, which I do not intend to take any protected time with, the principal issue raised by this appeal underlies all of the various predicates, the possible predicates for Judge Hart’s decision, which is whether any significance whatsoever is to be given to the elapse of time between the commission of an alleged defense and the date on which the indictment is filed in determining whether an accused should be required to stand trial on criminal charges, assuming, however, that there is technical compliance with the statute of limitations. Briefly, it is the appellees position that the filing of the indictment is really, merely a ministerial formality which is exclusively or virtually exclusively within the control of the government, and the government should not be given unlimited and unsupervised used of the entire period of limitations to assemble its case. And then to indict only when it is in effect ready for immediate trial. It is hardly necessary to emphasize the attention being paid to the problem of speedy trial today in this country and rules and statutes are being formulated in a number of jurisdictions to provide that once the prosecution has been formally commenced by the filing of an indictment, then specific periods of time limitations should be followed, following the formal accusation by indictment, and it is our position that there will be a frustration of those rules if the government can indulge itself during the entire period of the five year period of limitations during which time it assembled its case which is largely in secret, largely beyond the scrutiny of the defendant and probably will remain beyond the scrutiny --
Thurgood Marshall: Mr. Jackson, did you say the day after the crime has been discovered and the government says five years after the crime has been discovered, where do we come down?
Thomas Penfield Jackson: Our --
Thurgood Marshall: Do you agree that there is no evidence in either one side or the other? The government does explain its delay and you do not show any interest, is that right?
Thomas Penfield Jackson: That is correct. We have shown --
Thurgood Marshall: And we have just the fact of the date, that is all we have.
Thomas Penfield Jackson: Well, we submit Your Honor that the --
Thurgood Marshall: You know, we will send in (Inaudible), it would come down to two-and-a-half, would it not?
Thomas Penfield Jackson: Yes, Your Honor.
Thurgood Marshall: But we can not do that -- we can not do that with constitution.
Thomas Penfield Jackson: We do not expect that that will be the result in this case or it should be the result. The government contends that it was understaffed. In the 1960’s, the US Attorney’s office did not have sufficient staff to prosecute them. So there is the scale of explanation on the part of the government.
Warren E. Burger: Well, we are not compliant to that explanation if we -- for the matters we can judicially notice, are we? That is argument; that was not evidence.
Thomas Penfield Jackson: I think that is correct Your Honor, but it is the only explanation that the government has offered throughout for its delay and bringing the prosecution in this case.
Warren E. Burger: Well, we will have no trial, so there was no occasion to give them anything here except the legal arguments.
Thomas Penfield Jackson: But the government did not proffer or offer any explanation other than what it is, what it --
Warren E. Burger: I do not read this record to the judge’s action of indicting anybody to go into the facts, you cut off by saying the prejudice is bound to have occurred.
Thomas Penfield Jackson: I think he did.
Warren E. Burger: And probably an invitation to pursue the inquiry.
Thomas Penfield Jackson: I think his conclusion was that he himself took judicial notice if you will of the fact that there is an attrition of human memory over the lapse of time particularly of one of the magnitude of which we are speaking here and that he did not need any formal demonstration from the witness stand of actual prejudice. He did certainly give the government an opportunity to explain why it had taken so long to do so and the only explanation which was offered was that in argument by the Assistant US Attorney who argued the case who could have had he had evidence of other reasons presented that evidence at that time. I do not believe that the record can be read as providing for an abrupt interruption by Judge Hart of, Mr. Franco. I think he extended him all the courtesy and the opportunity to make his case that he needed to do. I do not see that the government has been denied him opportunity and the government, of course, knew that the facts that we were representing to the Court have been made in the motions papers and could have  responded had it wished to do so with other facts of its own. In 1965-1966 the, Mr. Marion was the proprietor of the business firm which sold homeowner home intercom system to homeowners in the district and without going into the business practices in any great detail, by the second week of December of the year 1966, the Federal Trade Commission at that time had reasonable grounds to believe that there had been a violation of the law and they proceeded against Mr. Marion. Mr. Marion did not contest those proceedings and by the first week of February 1967, the Federal Trade Commission issued a cease-and-desist order, and so all of the information about the business practices which the government has characterized as a complex fraud case, all of this information was in the possession of a government. Nothing what else, whatsoever, nothing else, whatsoever occurred from February of 1967 until October of 1967 when the newspaper articles coupled with editorials which vehemently demanded prosecution of the People Newspaper articles, though were the culprits, exposed these business practices to public view and actually branded them as fraudulent. On October 4th, 1967 on the front page of this morning newspaper Mr. Marion and the entire Washington DC Metropolitan area saw him publicly denounced as a cheat and a fraud. Dealing with the -- the question is to whether or not there is a showing of prejudice in this case and I indicated to you sir in your response to your question that there is a showing of actual prejudice. In that, there is an attrition or it can be assumed that there is an attrition of human memory and a lapse of human memory. As a graphic illustration of that, at the same time that these articles were appearing in the newspaper, the 1967 world series was being played, and Judge Hart was asked to conceive with the difficulty of remembering the details of the 1967 world series which had occurred in 1967, not 1965-1966 as the events, the 23 month so called business fraud which the government alleges in this indictment and it is difficult I think for all of us to remember the details of events that far in offense.
Potter Stewart: They all have -- I think if you had played in the world series of 1967, he remembered the details very well.
Thomas Penfield Jackson: If indeed you had played that and there is no showing that Mr. Marion played --
Potter Stewart: And your client guarantedly was involved in this case.
Thomas Penfield Jackson: That is correct.
Potter Stewart: It was in the side line, high standards for a newspaper reader.
Thomas Penfield Jackson: Well, that remains to be seen Your Honor since the case is not been tried.
Potter Stewart: I think the allegation is that your client was involved in this.
Thomas Penfield Jackson: It was -- and that he was involved, yes, whether or not he was involved in the so called criminal activities; it is another matter.
Potter Stewart: And that is we tried, of course.
Thomas Penfield Jackson: These articles however, were filled with anonymous quotations attributed to the United States Attorney to the effect that a special fraud squad had been setup that the chief of that fraud squad had been relieved of all other duties and was to be concentrating on these cases, thereafter exclusively, and that he also indicated or is quoted as having indicated that he expected indictments within two weeks. But nothing happened within the next two weeks or the next two months and it was not until by Marion’s recollection of the following summer that anything whatever occurred, the government remembers that it was winter, a year when it occurred and that was an informal inquiry from the Assistant United States Attorney, in charge of the case to bring records and documents down to the office. Now, we do not know how voluminous these records were or at least it does not appear off record how voluminous they were but it can be inferred from the record that they were of no greater quality than to have required one trip by one man to take them to the Assistant United States Attorney's office, which he did, and he conferred with Mr. Glanzer the Assistant United States Attorney in charge of this matter, and he did so at some lenght. Again, nothing happened. An entire year passed and more and finally, in March of 1970, Mr. Marion --
Thurgood Marshall: As of that time, should he be indicted then?
Thomas Penfield Jackson: Your Honor, our position is that it is a rule or ought to be a rule of reason. The question is when did the government objectively have noticed that a crime had been committed by the one they intended to bring to trial for and once that rule of reason is applied, which cannot be any hard and fast rule --
Thurgood Marshall: Was your rule was the conspiracy?
Thomas Penfield Jackson: I am sorry Your Honor; I did not understand the question.
Thurgood Marshall: There is a possibility of eight people conspiring, you assume there is one, you do not know the other seven. You can not indict that one right then and there?
Thomas Penfield Jackson: I do not think so Your Honor, I think again that would be one of the factors to be considered and when the government ought to proceed for an indictment.
Thurgood Marshall: But do you think that every indictment now, that you expect the Court to find out whether it should have been handed up in June instead of August?
Thomas Penfield Jackson: No, Your Honor. I think in the vast run of cases it did not occur.
Thurgood Marshall: Well, what is your -- this is the third time, I am still trying to get what is your rule?
Thomas Penfield Jackson: Our rule --
Thomas Penfield Jackson: The rule that we believe ought to be applied is one of notice, simple of notice to the government, consisting with all of the various factors which bear upon the rapidity with which a case ought to be brought to prosecution.
Thurgood Marshall: Federal Trade Commission did not give notice?
Thomas Penfield Jackson: It did give the defendant notice --
Thurgood Marshall: It gave you a cease-and-desist notice.
Thomas Penfield Jackson: Our position is that, it is the notice to the government, when does the government objectively know --
Thurgood Marshall: But did not the government assume that you had ceased-and-desisted?
Thomas Penfield Jackson: I am sure that it could assume that it had ceased-and-desisted, yes sir, yes Your Honor and that in fact was the case.
Thurgood Marshall: They did not have to indict then, did they?
Thomas Penfield Jackson: I do not believe so Your Honor.
Thurgood Marshall: Well, when?
Thomas Penfield Jackson: Within a reasonable time thereafter.
Thurgood Marshall: What time?
Thomas Penfield Jackson: Again, it would be consistent with all of the facts of the case that the government have -- was there a fugitive defendant, for example.
Thurgood Marshall: Well, I assume that you said to the District Court, to Judge Hart, that two-and-a-half years is pro se too long period.
Thomas Penfield Jackson: No, Your Honor.
Thurgood Marshall: Per se, I mean per se?
Thomas Penfield Jackson: Per se, except to the extent that prejudice maybe inferred or presumed from the lapse of time in the attrition of his memory, his ability to respond to these stale charges.
Thurgood Marshall: So now if that rule is applied then anybody that is indicted four years after the crime automatic files a motion and is dismissed?
Thomas Penfield Jackson: I do not believe so, Your Honor.
Thurgood Marshall: All mail fraud cases?
Thomas Penfield Jackson: Again, not in all mail fraud cases.
Thurgood Marshall: The means burden put on the government to show why it took four years?
Thomas Penfield Jackson: I think the burden, ultimately, would devolves upon the government to show why they have waited after the defendant had assumed the burden of showing that the government had objective notice of the existence of the crime and that it --
Thurgood Marshall: And that was four-and-a-half years after that, clearly, that is all the defendant shows?
Thomas Penfield Jackson: In a case such as this, I would think so.
Thurgood Marshall: And if the government does not remand it this way?
Thomas Penfield Jackson: If the government does not sustain its burden of explaining why the delay was as extensive as it was, given those circumstances.
Thurgood Marshall: You got any case you can cite on this?
Thomas Penfield Jackson: Well, Your Honor, perhaps, the most recent exposition of the considerations involved is Mr. Justice Brennan's concurring opinion in the Dickey versus Florida case in which all of these considerations are explored.
Thurgood Marshall: Did he say per se automatically?
Thomas Penfield Jackson: No, Your Honor I do not believe he said per se.
Thurgood Marshall: (Inaudible)
Thomas Penfield Jackson: He did not say that it was a per se rule but we are not contending for a per se rule, we are simply contending for a rule in which there is a rule of reason as to the time which the government is to be advised to go forward.
Thurgood Marshall: (Inaudible) that most stop fraud and other types of cases, in mail fraud cases, they barely get it in before the statute of limitation.
Thomas Penfield Jackson: If the government had had a reason for delaying four years in this case, it could have been advanced before Judge Hart and was not.
Thurgood Marshall: Yes, but that is not the ground that you did listed, you just listed on the grounds that two-and-a-half years is too long; that is what he said.
Thomas Penfield Jackson: He found that there was bound to have been an attrition of the memory of the defendants in this case.
Thurgood Marshall: Do you want us to sustain that?
Thomas Penfield Jackson: Yes, Your Honor I do.
Thurgood Marshall: Which means it makes way to all two-and-a-half year indictments to go out as of now?
Thomas Penfield Jackson: Well, I do not know where the period two-and-a-half years derives, Your Honor, that last event charged in the indictment, charge occurred in January of 1967.
Thurgood Marshall: Well, all four-and-a-half years indictments go out.
Thomas Penfield Jackson: I do not believe that this requires a per se rule as to four year delays.
Warren E. Burger: On what evidence did Judge Hart break make that finding?
Thomas Penfield Jackson: The finding as to the attrition of the individual’s memory?
Warren E. Burger: Yes.
Thomas Penfield Jackson: I think he presumed it.
Warren E. Burger: Yes.
Thomas Penfield Jackson: He had no evidence, that is correct, no testimony as to actual prejudice.
Speaker: Mr. Jackson, as your argument of rule of reasonomg, is that predicated under Sixth Clause or the Due Process clause?
Thomas Penfield Jackson: Our argument here is predicated upon the Sixth Amendment while there is conceivably could be a due process argument based upon extreme circumstances.
Warren E. Burger: You were discussing Dickey against Florida a little bit earlier.
Thomas Penfield Jackson: No they do not Your Honor.
Warren E. Burger: The reasons for the delay by the State of Florida in that case was that the man was, Dickey was in a federal prison and it was pointed out in the Court's opinion, they could have reached him anytime and brought him down for the trial, but they just deliberately waited until he was released and to be released from the federal penitentiary.
Thomas Penfield Jackson: That is correct Your Honor although there are -- it was not too long prior to that, the Dickey versus Florida that there was substantial question as to whether or not there was an obligation on the State to request an individual --
Warren E. Burger: All I am suggesting is Dickey against Florida, in its facts, does not have much to do with this case, does it?
Thomas Penfield Jackson: If the facts are clearly distinguishable there is no question about that Your Honor.
Potter Stewart: That would be -- what did the legislative history shows?
Thomas Penfield Jackson: Legislative history shows --
Potter Stewart: Does it show what you just said?
Thomas Penfield Jackson: Yes, Your Honor, it is cited in our brief.
Warren E. Burger: But we have to assume from that this extension from three years to five years was thoughtlessly done without any concern for the realities.
Thomas Penfield Jackson: I do not suggest that it was thoughtlessly done.
Warren E. Burger: All of these rules that you are suggesting such as the Second Circuit rule and recent actions in other areas have had to do with bringing cases on for trial after indictment have been off?
Thomas Penfield Jackson: That is correct Your Honor and our position --
Warren E. Burger: None of those things reached the problem we are dealing with here.
Thomas Penfield Jackson: None of those cases, none of those rules reached them and in fact, our position is that they will be frustrated, vitiated in effect, if the government has the entire five year hiatus of the period of limitations to do whatever it needs to do to prepare its case, and then and only when it is ready to go to trial, it obtains the indictment and then announces immediately, we are ready for trial against the defendant who may have been during a four year period unaware of --
Byron R. White: Who these accuses would be?
Thomas Penfield Jackson: What evidence would be offered to support those accusations and how in the world he could undertake to disprove the allegations that would be made against him.
Warren E. Burger: Thank you Mr. Jackson.
R. Kent Greenawalt: Mr. Chief Justice and may it please the Court.
Warren E. Burger: Thank you Mr. Greenawalt.


William H. Rehnquist: We'll hear argument first in No. 86-369, General Motors Corporation v. United States. Mr. Garrett.
Theodore L. Garrett: Mr. Chief Justice, and may it please the Court: This case involves central issues concerning the adoption and the enforcement of state air control regulations under the Clean Air Act. The question presented is, in a case where a state has revised its regulations, whether EPA may bring a suit to enforce the original unrevised regulations and to collect penalties without first complying with its statutory duty to act to approve or disapprove the revision. We request that the decision below be reversed because it allows EPA to veto state regulatory choices through an enforcement mechanism without following the procedures and requirements of the statute. We submit that this procedure EPA is following creates a regulatory limbo which frustrates the efforts of states and companies to respond to changing conditions. Now, I want to clarify at the outset that our point is not simply that EPA took too long in acting on the revision in question here. Our point is a more fundamental one than that. We submit that Congress established a very careful sequence in the statute, first, for the state promulgation of state implementation plans and revisions to those plans, secondly, for limited and timely EPA review of those plans and, only after that, for enforcement. We submit that by skipping that second step, the limited and timely review, EPA has put the cart before the horse, if you will. Now, in this case, the Commonwealth of Massachusetts gave General Motors an extension of time, from 1985 to 1987, 1987 being the attainment deadline in the Clean Air Act that's relevant here and, indeed, it was the deadline for all of Massachusetts, as granted by EPA. The purpose of the extension was to allow General Motors to replace an older painting facility that it had in Framingham, Massachusetts and instead to build a new more modern facility with substantially lower emissions. EPA had previously approved similar extensions of time through state plan revisions for other companies in 1984 and 1985, and the Agency did so pursuant to a policy that it had announced in 1981. In this particular case, EPA waited while General Motors built its plant. It completed the new facility at great expense in July of 1987, and then when the new facility was built and the old facility was shut down, EPA filed a lawsuit in August of 1987 to collect penalties for the period of time during which the company had operated the old paint shop. It did so without taking any action... any final action on a revision. Now, we submit that General Motors should have been entitled to comply with the Commonwealth's revision and should have not been penalized for doing so until EPA took action on the revision.
Sandra Day O'Connor: Well, Mr. Garrett, the statute, does it not, makes the terms of the original plan enforceable until a revision is approved, as I understand it.
Theodore L. Garrett: Are you referring to Section 110(d) of the statute, Your Honor?
Sandra Day O'Connor: Uh-huh.
Theodore L. Garrett: Your Honor, it seems to us that the government's argument with respect to that section proves a little bit too much, and it's somewhat a mechanical and artificial reading of the statute. And the reason we say that is because it does not deal with EPA's corresponding duty under the statute to comply with its obligations to review a plan in a timely way. We submit that the Congress--
Sandra Day O'Connor: Well, of course, the SG takes the position that there is no four-month deadline requirement for action on proposed revisions. And I suppose you would be first to acknowledge that the language of the statutory provisions could be interpreted as the Solicitor General suggests, as not requiring revisions to be approved within four months.
Theodore L. Garrett: --We disagree on that point, Your Honor. But there's a more fundamental point that I would like to emphasize. I think that there can be no doubt under the statute, because it uses the word EPA has a duty to act on the plan and plan revisions. And we're saying that EPA has breached that duty act. Whether it's four months or a reasonable time--
Sandra Day O'Connor: Well--
Theodore L. Garrett: --they should be acting before they bring lawsuits.
Sandra Day O'Connor: --But the... the language of the statute dealing with the four months says the administrator shall within four months after the date required for submission of a plan under Paragraph 1. Now, that doesn't appear to refer to any revisions.
Theodore L. Garrett: The... if you're referring to Subsection (a)(3), that section deals entirely with revisions, and we believe--
Sandra Day O'Connor: But (a)(3) says that the administrator will approve any revision if he determines that it meets the requirements of Paragraph 2. Not that he meets the requirements by acting, but that the plan meets the requirements.
Theodore L. Garrett: --The language of the statute, I think, Your Honor, we have to be careful not to try to parse it a little bit too fine but to look to the overall intent of it. In our reply brief we pointed out one example where EPA does not interpret the language to refer only to the requirements of the plan. And in particular the first sentence of Section (a)(2) states that the administrator may approve or disapprove a plan or a portion of a plan. There is no reference to a portion of a plan in Section (3)(a). But yet the administrator in the public service case has said Congress basically intended these two provisions to work the same way and the administrator has the same obligations and responsibilities under (a)(2) as it does under (a)(3).
Sandra Day O'Connor: Well, I... I guess my question is specifically whether you would acknowledge that the language of the statute could be read as the Solicitor General says it should be read.
Theodore L. Garrett: Our view, Your Honor, is that the language is intended to be a provision of incorporation, and it's plain, to us anyway, that Congress intended to incorporate all of (a)(2) into (a)(3).
Sandra Day O'Connor: But it could be read otherwise?
Theodore L. Garrett: I don't think so, Your Honor.
Sandra Day O'Connor: No?
Theodore L. Garrett: I really don't. I think it's a very strained reading for the government to say that every provision of (a)(2) is incorporated in (a)(3) with the exception of the four-month rule. And if you go word by word almost to see what provisions the government believes are incorporated and which are not, they believe that everything is incorporated except the four-month rule. I don't think that there's any indication in the statute that Congress intended to carve out that one provision. And we think that all of the lower courts and all of the amici that have filed briefs with this Court are correct in assuming that Congress intended that. And we think that the proof of the pudding is Section 110(g) of the Act, which we've pointed out in our brief requires EPA to comply with the plan revisions... to act on certain plan revisions, quote, (a)(3). But again--
Antonin Scalia: It says... it says the required period, what four-month period has been required.
Theodore L. Garrett: --Our position, Your Honor, is that the only reference that's logical is the required period for EPA to act on the revisions under Section (a)(3).
Antonin Scalia: But that's... that's a required period after the... the SIPs must be submitted. That was four months after the Act was originally passed... after the date that the Act required states to submit plans. And as the Act originally passed, it said four months after that date the administrator must have acted on those plans.
Theodore L. Garrett: That's correct, Your Honor, and the statute does--
Antonin Scalia: That is the only required four-month period. Four months... not after the plans were filed. The plans could have been filed before that... that period, couldn't they? They could have been filed right after the Act was passed. So the four-month period might indeed have been... I don't know when the Act was passed, it might have been an eight-month period. It was four months after the plans were required to be filed, not four months after they were filed.
Theodore L. Garrett: --Again, Your Honor, there's some distinctions that could be made. I think that the government argues that plans are never required after the original plans and, therefore, that can't apply. I think--
Antonin Scalia: It makes sense to me. Why isn't that true?
Theodore L. Garrett: --It assumes that Congress really didn't intend that there be prompt action on revisions and that revisions somehow were less important than the original plans.
Antonin Scalia: No. It just assumes that Congress... that Congress for prompt action relied upon the Administrative Procedure Act which... which assures prompt action in all other areas.
Theodore L. Garrett: Let's assume--
Antonin Scalia: And the four-month provision was just to get this Act off and running really fast. That's all.
Theodore L. Garrett: --Let's assume for the moment that the four-month provision is not applicable and that EPA's duty is to act within a reasonable time.
Antonin Scalia: Good. I was going to ask you what... what you think that leads to.
Theodore L. Garrett: What that leads to is this, Your Honor, and this is the point I was trying to make a moment ago. Under the Court's decision in the Train v. NRDC case, EPA must approve a revision if it satisfies the basic requirements of the statute. And what EPA has done here is that they've invented a new option. What they do is they exercise a pocket veto by ignoring a revision while bringing a suit to enforce the old plan. This, in effect, disapproves the revision without any of the restrictions on EPA authority that are in the statute. And indeed, it provides incentives for EPA to delay further in order to advance its enforcement action. Now, by proceeding in this way, it seems to us, that EPA is leaving the states and industry in a regulatory limbo. It undercuts state efforts to develop and enforce revised plans for improved control strategies. It removes any incentives that industry would have to accept and implement revisions that would make progress. And we submit that these consequences are totally inconsistent with the goals of the Act, and they are inconsistent with the basic obligation that EPA has in the statute where it says the administrator shall approve any revision. And even if it's not four months, even if it's a reasonable time, he's obligated to approve that revision if it meets the basic requirements of the Act because the states have the primarily role in establishing a mission limitations. And by exercising this pocket veto what the Agency is doing is writing the states out of the statute and saying we're going to ignore what you do and we're going to bring enforcement action to enforce our choices and not yours.
Sandra Day O'Connor: Well, in circumstances as in this case, who should have the burden of proving that the revision meets the requirements and therefore has to be approved? Could that be established as a matter of defense by your client if an enforcement action is brought based on the original plan?
Theodore L. Garrett: That was the remedy that the court of appeals suggested... or, at least one of the two remedies that the court of appeals suggested, Your Honor. And we respectfully suggest that that's not very meaningful. Let's think about what would be involved in doing that. Under the government's approach, the district court would be required to consider whether the revised plan was, quote, "clearly approvable or clearly not approvable. " and it would be doing so well before the Agency itself had acted. For example, in the Cyanamid case which we rely on heavily in our briefs, that was a 1982 plan revision. The court of appeals handed down its decision in 1987 after a full round of administrative proceedings concerning the amount of the penalty. To this day there's been no final decision by EPA on that SIP revision. It seems to us that this approach of requiring a district court judge to make a decision as to whether a plan was clearly approvable or not really turns notions of primary jurisdiction on their head. The Agency should be making that determination first. And that's the basic problem that we've got.
Antonin Scalia: The problem, Mr. Garrett, is once you abandon the form... well, you haven't abandoned it. But once you assume I don't agree with... with your four-month clear line, industry isn't helped very much by simply adopting a reasonable time rule and say that after a reasonable time for approval has elapsed the industry is thereafter excused from... from complying with the original SIP and... and can act as though the revised SIP has been approved.
Theodore L. Garrett: That--
Antonin Scalia: Reasonable time will vary enormously from... from one case to another. The Agency says it goes from something like three months to... what, 18 at the outside? Something like--
Theodore L. Garrett: --That's quite right, Your Honor. And that's not our position, by the way. And let me try to make it clear if I haven't.
Antonin Scalia: --No, I know it's not your primary position. But... but you... you... but you offered it as a fallback position. That even if... even if we don't agree with your four-month clear line, still in all, the Agency had an obligation to act within a reasonable time. And at least after that reasonable time elapses, the same consequences should ensue. That is, that the company should be able to comply with the revised plan rather than the original plan.
Theodore L. Garrett: No, Your Honor, we go a step further than that. Our position is that EPA has a fundamental duty under the statute to first act on the revision, up or down, before it brings an enforcement action. And we're not going to ask the district courts to look at whether there was a reasonable time on the four-month rule. We think that the four-month rule is very important because it underscores the urgency of EPA to act, but there can be no question to us that the statute imposes a mandatory duty on EPA to act on those plans and that they should be prohibited from bringing an enforcement action.
Antonin Scalia: Even before the four months expires?
Theodore L. Garrett: Yes, Your Honor. During that period of time EPA should be making a neutral, unbiased decision on whether that plan--
Antonin Scalia: I see. I see what you're saying.
Theodore L. Garrett: --was approvable or not. It shouldn't be... they shouldn't be rushing to court to enforce a regulation when there hasn't been a... determination made under the statute as to what regulation ought to be enforced.
Sandra Day O'Connor: Well, Mr. Garrett, what language in the statute would you point to to support that view that that's a requirement and that the EPA may not resort to enforcement actions? Is there any particular provision?
Theodore L. Garrett: Your Honor, there is not a particular provision in the sense of language saying that EPA may not bring an enforcement action. However, we suggest that... several things. That the mandatory in the language in the statute saying that they are obligated to approve, the language in the statute saying in several places... in the preamble to the case and to the statute in the declaration of findings and purpose... that the prevention and control of pollution at its source is the primarily responsibility of the state and local governments, and in Section 7407(a) which says that each state shall have the primary responsibility for assuring air quality within its entire geographic area. The states don't have that authority if EPA is allowed to just ignore state plans, pick and choose among revisions and original plans, and if it prefers the original plan rather than the revision for any reason or no reason at all, without following the statutory procedures, to just go ahead and enforce the original plan. We submit that that is so contrary to the fundamental workings of the statute that this Court should devise a remedy to deal with that situation.
Sandra Day O'Connor: Well, they... they can enforce neither the original plan, because there's a revision pending, nor the revised plan, because that hasn't yet been approved. So it's... it's just a free-for-all during... during the period while the revision is pending. You can't enforce anything. All the rules are gone. Is that... is that the regime that... that would follow?
Theodore L. Garrett: The... to some extent, Your Honor, the revision certainly would be enforceable in state court.
Antonin Scalia: Oh, it would? It would?
Theodore L. Garrett: We believe so, Your Honor. In fact--
Antonin Scalia: You know, all... all these revisions are not going to be in your client's favor. What if a state adopts... proposes a revised plan that tightens the environmental restrictions? The regime you're arguing for is that the state can impose upon... upon industry those... those additional restrictions even though they haven't been approved by EPA?
Theodore L. Garrett: --Yes, Your Honor. As a matter of fact--
Antonin Scalia: Wow, that's... that's high risk.
Theodore L. Garrett: --The Clean Air Act... the way it's structured, Your Honor, requires that before a state submits a plan to EPA that it be adopted as a matter of state law and they be able to show EPA at the time that it's submitted that it's been promulgated and enforced. And the states go through substantial procedures of their own to establish these revisions. They're required by statute to have public hearings. And in this case Massachusetts did have hearings. The public was invited; the American Lung Association appeared and did not object to the revision. EPA had advance notice of this. These revisions aren't a surprise. EPA had been talking to the Commonwealth about this; they appeared at the hearings. They had some technical comments, but they did not object. Massachusetts believed that it satisfied all of its concerns, and after considering all of the concerns of interested parties and the public, the state decided that it was in the best interest of the citizens of the state to go ahead with this revision, to allow General Motors to build a more modern, lower emission facility and extend the deadline to the statutory deadline that EPA had already approved. We submit that--
Harry A. Blackmun: On the other hand, Massachusetts, your Commonwealth, is opposing you here, isn't it?
Theodore L. Garrett: --Yes, and that's very puzzling, Your Honor. We would urge the Court to look at the brief filed by the National Governors' Association. We think that it's much more representative of the views of state and local officials concerning these issues. The Massachusetts brief is frankly puzzling and incomprehensible to us. The... I can elaborate some more, if you'd like. [Laughter]
Harry A. Blackmun: I'd like to some elaboration on one point, Mr.-- --I'm only pointing out that your own... the state involved is on the other side.
Theodore L. Garrett: The... Massachusetts certainly believed, and still believes that the plan revision involved was in the public interest, and I would on that point urge the Court to look at the 1987 comments by the State of Massachusetts that we've lodged with the Clerk of the Court. When EPA had eventually proposed to disapprove the plan, the State of Massachusetts filed very vigorous comments with EPA saying that this is a good revision and your concerns are unwarranted. We want this approved.
John Paul Stevens: May I ask this question about the interplay between the state and the Federal authority? If you focus on Section 110(g), which provides... gives the governor the power to suspend enforcement if he makes the finding that it's necessary to prevent the closing of a plant and so forth. It seems to me that extra precaution there would be totally unnecessary in view... if your view of the basic statutory scheme is correct, that the state could accomplish it without that planning. I'd like you to comment on that portion.
Theodore L. Garrett: Certainly, Your Honor. We have two responses to that. One is that we and the government disagree on the interpretation of that language of 110(g). We believe that that was an emergency provision that was designed to deal with imminent plant closings and in a situation where the state really couldn't even afford to wait the four months. So what Congress did was allow the states the authority to, in those situations, suspend immediately without waiting for the four-month period to... to--
John Paul Stevens: No, but they would then have to at least make... make the finding that they approved the revision, just as they do in an ordinary revision situation.
Theodore L. Garrett: --Well, eventually EPA would, but during the--
John Paul Stevens: No, not the EPA. I'm talking that the governor would, the state would.
Theodore L. Garrett: --Oh, yes.
John Paul Stevens: So why couldn't... but if they've done that, and then your basic view of the state authority prevailed, why would they need to make any other finding because that in itself would become the law until EPA acted?
Theodore L. Garrett: We would urge the Court to not read Section 110(g) as an exclusive remedy, basically, which is our second provision. There are a number of provisions in the statute, 110(g), 110(f), that provide for special relief. In fact, the Train case, which we rely very heavily on, involved just that kind of an issue. There was a provision for certain kinds of variances in the statute that the State of Georgia wanted to provide. But the State of Georgia wanted to do it by a SIP revision rather than using 110(f). And they said that that was the exclusive provision in the statute. If you could do it by a SIP revision, why have a SIP revision? And this Court held no, that the SIP revisions are the basic mechanism under the Act for states to make these kinds of choices. And the fact that Congress may have provided some particular remedies doesn't make them exclusive. So we would say that the fact that Section 110(g) of the statute is there doesn't at all conflict with the remedy that we're urging. In fact, in some way we think that since Congress never thought about this problem, it supports it.
Byron R. White: Mr. Garrett, what is the... what happens when an original plan is submitted and the EPA doesn't comply with the express four-month requirement for approval or disapproval?
Theodore L. Garrett: The very first plans under the Clean Air Act? I think, quite frankly, Your Honor, that--
Byron R. White: Does the plan then become effective--
Theodore L. Garrett: --No.
Byron R. White: --just... just by default?
Theodore L. Garrett: I think that the... my impression is that when we're talking about the original 70 Clean Air Act, that the states were trying to get the plans into EPA in a hurry, that EPA tried to act in four months. I don't believe they acted in four months in every case. And eventually EPA ended up approving and disapproving the various plans.
Byron R. White: But the plan doesn't automatically go into effect after four months?
Theodore L. Garrett: That's correct.
Byron R. White: Well, I don't think your... I take it your position is that... that when the revision is submitted and it is... it is... say, it isn't approved or disapproved within four months but finally it is disapproved, then, I take it, the company has to comply with the original plan from there on.
Theodore L. Garrett: That's correct.
Byron R. White: From there on?
Theodore L. Garrett: That's correct.
Byron R. White: But you say that they... until then they may not be fined--
Theodore L. Garrett: That's right.
Byron R. White: --for their noncompliance?
Theodore L. Garrett: And the reason is--
Byron R. White: Meanwhile.
Theodore L. Garrett: --That's correct, Your Honor.
Byron R. White: And that's true even if they act within four months? Suppose they act within four months and disapprove, and you say they nevertheless may not be fined for the... for their noncompliance with the original plan up till then?
Theodore L. Garrett: That's right, although as a practical matter that situation would virtually never arise.
Byron R. White: Well, that's your position anyway.
Theodore L. Garrett: Yes. Under the statute they're required to give 30 days' notice.
Byron R. White: Uh-huh.
Theodore L. Garrett: And then they can bring an enforcement action if violations occur beyond the 30th day. So the likelihood of that hypothetical would ever arise and a suit would be filed within the four months is quite remote.
Byron R. White: Well, it is... well, it's not unlikely that they... that they'll take longer than four months, obviously. And once they... once... even though they disapprove and then you have to comply from then on with the original plan, you say they may not fine you for the... for the period up until disapproval?
Theodore L. Garrett: That's right. What we're saying, Your Honor, is that the company needs someplace to look as to its compliance obligations. And in a situation where the state--
Byron R. White: Well, but that's not... that's not very hard, I wouldn't think, until the plan... until the revision is approved--
Theodore L. Garrett: --Well, if it's--
Byron R. White: --you've been under an obligation.
Theodore L. Garrett: --It's hard in two respects. If you believe that state choices are really supposed to have primacy under the statute, and indeed the state can go into state court and enforce the revision against the company, we think that it's fundamentally unfair to put a company in that position of being subject to conflicting obligations--
Byron R. White: Well, I know, but your position is that... let's assume there was an express four months limit for a revision and let's say that EPA had never exceeded four months, you say that... that the company should be able to assume that the revision will be approved at least within that four-month period, because you... you say you're... you just don't have... you're excused from compliance with the original plan for... for up till four months.
Theodore L. Garrett: --What we're saying... now, the Cyanamid court actually adopted a slightly different approach. They said you could start the clock running after the four months.
Byron R. White: Well, I know, but your position is--
Theodore L. Garrett: Our position is that the company should look to state law and be expected to follow what the state adopted after public hearings until EPA makes a decision one way or the other, because EPA is in a state of neutrality at that point and the company ought to be able to assume--
Byron R. White: --But the statute requires before... before a state plan goes into effect originally, or a revision, the statute requires approval.
Theodore L. Garrett: --That's correct, Your Honor. And what we're saying is that the other alternative which would allow EPA in effect to veto state plans that are very well considered plans adopted after public hearings and by the entity of government that Congress really entrusted to make these decisions, would basically switch the presumption... it would be... you'd have a situation where all state plans are presumed disapproved under the statute even though EPA had not made any showing that there were any grounds for such disapproval.
Byron R. White: So you... you say the... the court of appeals didn't... didn't go far enough?
Theodore L. Garrett: Yes, Your Honor.
Byron R. White: Yeah. You think another court of appeals has got the best of it? What is it, the Fifth Circuit or--
Theodore L. Garrett: The Fifth Circuit approach is the approach that comes closest to our position, yes. I'd like to reserve my time--
Antonin Scalia: --It is... it is the consequence of your position, if I understand it, that during the period that... that a revision is pending the Federal Government cannot enforce anything? It can neither enforce the old plan nor the revised plan. It must rely entirely upon the states for... upon the state for enforcement?
Theodore L. Garrett: --With... with one small qualification. If there are common elements of the two... in other--
Antonin Scalia: Right.
Theodore L. Garrett: --words, if the original plan says A plus B and they've been revised--
Antonin Scalia: Right.
Theodore L. Garrett: --and the plan says A plus C and it's intended that there is some separate element, yes, certainly the Agency can enforce under that circumstance. But basically where there's... to the extent that there's a revision, what we're saying is that the states can enforce the revision and EPA should be barred from enforcement. And that bar serves as a salutary purpose. It serves to encourage the Agency to act promptly so that there can be a consensus between the Federal and state governments as to what should be enforced. If I may, I'd like to reserve my remaining time for rebuttal.
William H. Rehnquist: Thank you, Mr. Garrett. Mr. Wallace.
Lawrence G. Wallace: Thank you, Mr. Chief Justice, and may it please the Court: I would like to preface my remarks by pointing out that the time limitations that were specified in the Act in 1970 in order to get the states to make prompt submissions and EPA to move on them within four months were designed to get into place protections of the public health which were not yet in place under the previous versions of the Clean Air Act. And enforcement authority was included in the 1970 Act so that these protections of the public health of the breathing public would be in place and enforceable. The enforcement authority was given both to the EPA and to citizen suits, and citizen suits could also be brought by the states under the definition of who is a person in the Act who can bring a citizens' suit. But the primary enforcement authority was in the EPA. In order to bring a citizens' suit, the EPA first must be notified and the citizen suit can proceed only if the EPA has not brought a suit and is not diligently prosecuting it. So that Petitioner's submission at oral argument would turn around the explicit priorities of the enforcement provisions as well as undermine the basic purpose of what after all was entitled the Clean Air Act, which was to get protections for the breathing public in place.
Sandra Day O'Connor: Mr. Wallace, would you agree that the EPA is required to act within a reasonable time on proposed revisions?
Lawrence G. Wallace: Absolutely. That is part of our submission, that it is a duty imposed by the Administrative Procedure Act in--
Sandra Day O'Connor: Well, what is a company to do if the EPA does not act on a proposed revision and when the facts show that the revision clearly meets the standards of the Act and must be approved ultimately? Now, that's... that's the alleged position that the Petitioner is in. And whether or not it's true, let's assume that's true. Then should the EPA be able to, under those circumstances, continue to enforce the older plan?
Lawrence G. Wallace: --I think the court of appeals reached the correct answer, which is, yes, with two qualifications. One is that in determining what penalties, if any, are appropriate, all of these questions of the equities of the particular case will be taken into account in the penalty proceeding. And the other is that mandamus actions do lie to get the EPA to act. But I must point out that in this case the EPA has disapproved this proposed revision, so that it is not exactly Petitioner's situation that is posed in the hypothetical. And as a matter of fact, a case is pending now in the Court of Appeals for the First Circuit in which Petitioner is challenging the disapproval. We recount that in our brief. So I'd like now to point out that if we analyze Petitioner's claim and the American Cyanamid rule adopted by the Fifth Circuit in relation to the statute that is before the Court, the extraordinary lack of legal footing for this claim is revealed. And our analysis proceeds in five short steps, which I can summarize very briefly. The first is that it is undisputed and cannot be disputed under this Court's decision in Train that Petitioner's legal obligation under the statute is to comply with the requirements of a SIP that is in place. That's what the Court held in Train. And here the SIP was adopted... the state implementation plan was adopted by Massachusetts and approved by EPA to address Massachusetts' very serious ozone problem. Two, the Act explicitly confers authority on the government to bring an enforcement suit against a source of emissions for failure to comply with the requirements of the SIP. Now, number three--
Byron R. White: xxx in that regard, suppose the EPA approves a revision and... but meanwhile, obviously, the... the... or, it so happens that the company has not been living up to the unrevised plan, to the original one, can you then fine the company for that period up till approval of the revision?
Lawrence G. Wallace: --A suit could be brought. There is enforcement authority. The Act is concerned with damage to the public health that occurs--
Byron R. White: So your answer to the question is yes?
Lawrence G. Wallace: --Yes.
Byron R. White: Yes.
Lawrence G. Wallace: Although, as a matter of enforcement policy, EPA does not ordinarily bring such suits. We've pointed that out in footnote 32 of our brief on page 29 and explained the enforcement policy that EPA has been following. Now, to return to my brief analysis here--
Antonin Scalia: Of course, the company here had no real reason to think that that policy would apply because fairly early on, as I recall, there was indication that EPA would oppose this... this revision anyway.
Lawrence G. Wallace: --EPA even testified in the state proceedings that it had doubts about it. And there was considerable communication between the state and Federal authorities, as there should be. This is an Act that contemplates cooperation between the state and Federal authorities. Of course, EPA could not state a concluded view in the state proceedings, but it did certainly indicate its doubts. And it urged the state authorities to pursue the course they did, which was to try to negotiated a so-called delayed compliance order, which would have required General Motors before making this major technological change to take some steps to improve the emissions situation as it was existing. It would have set up a schedule of improvements. But those negotiations failed.
Antonin Scalia: In a way, Mr. Wallace, your position would be better for purposes of this case if you didn't have that humane enforcement policy. That is to say, if it was your policy to go after lawbreakers whether or not the manner in which they were breaking the law was later approved, because it seems to me one of the strongest arguments that General Motors has here is that your attitude towards the revision will... will be affected by the fact that you bring a prosecution. While the revision is pending, you... you come into court to prosecute somebody for violating it, it's very difficult later to say, yeah, it was a good idea after all, they were violating what was a stupid law and... and... you know, you're not inclined to approve the submission.
Lawrence G. Wallace: Or the scheme--
Antonin Scalia: Now, that wouldn't be a problem if you prosecuted everybody anyway, see? [Laughter]
Lawrence G. Wallace: --Even if we thought it appropriate to prosecute everybody, it would be hard to devote the resources to that endeavor. And the scheme Congress adopted is one which does not remove prosecutorial discretion and still confers the responsibility to pass on these proposed revisions. And we think of it the other way around. If somebody is making satisfactory progress, that's not the place to devote our limited enforcement resources, even though the progress may not be ideal and there might actually be legal liability. It's just the--
Byron R. White: What do you have? About three more to go?
Lawrence G. Wallace: --Well, in this little analysis I thought I would mention these three more points. Number three, the Petitioner is asking the courts to erect a bar to the exercise of the government's explicit enforcement authority even though no such bar appears in the text of the statute itself or is adverted to in any way in the legislative history of the Act. Nothing is pointed to that shows that it was at all contemplated by Congress in enacting it. And at least the American Cyanamid court... and Petitioner hasn't totally renounced it... that court based this judicially created enforcement bar on EPA's failure to complete regulatory action on a proposed SIP revision within a four-month period supposedly required by the statute even though that alleged four-month requirement also does not appear in the text of the statute and is not adverted to in any way in the legislative history of the statute. And my fifth point in this brief analysis is that Petitioner seeks to justify its proposed judicial building of inference on inference here to supersede the statutory text on the ground that otherwise the Act's overall policy of state and Federal cooperation will be distorted to the prejudice of the states. And yet Massachusetts, the state whose interests are involved here, joined by 12 other states, has filed a brief in this Court stating, for very cogent reasons... and I commend this brief to the Court's attention... that their interests are better served by the government's ability to enforce the Act according to its terms. And it--
Byron R. White: xxx National Governors' Association position?
Lawrence G. Wallace: --Well, that brief was earlier filed, and I think the Massachusetts brief which was filed along with ours as a bottom-side brief took into account that submission and improved on it considerably. The... the chief problem that we have with the National Governors' Association brief is--
Byron R. White: Well, it doesn't agree with you. That's one problem. [Laughter]
Lawrence G. Wallace: --is... well, it goes part way. It says there should be no enforcement bar, but it assigns... it would have the Court assign to the district court in the penalty proceeding--
Byron R. White: Yeah?
Lawrence G. Wallace: --the entire authority that the Act places in the court of appeals in reviewing EPA's action in disapproving a proposed SIP. It equates the role of the reviewing court reviewing administrative action under this Court's decision in Harrison against PPG Industries, with the proper role of the district court in one of these enforcement proceedings. So, I would have to commend the Massachusetts brief as the better reasoned of the two briefs, with all respect. Now, in developing a couple of these points briefly, there is a sixth point that I hope to make, and that is that even if it would ever be appropriate for courts to erect an enforcement bar in the circumstances I have outlined, it would not be appropriate here, in this Act it would be a misfit that would be out of phase with other provisions and policies of the Act. Now-- --Well, on that point, it is true that Section 110(g) creates just such an enforcement bar in a particular situation. So it's not a totally wild suggestion. It... it is... it is the fact that an enforcement bar in limited circumstances has been provided by Congress in the Act which, under this Court's jurisprudence, cuts more in our favor than against our point because it shows that Congress, when it thought it was appropriate, knew how to draft an enforcement bar, did draft an enforcement bar--
John Paul Stevens: Well, you say it knew how to draft it, but what was it saying when it talked about the required four-month period in that very section?
Lawrence G. Wallace: --Well--
John Paul Stevens: How good was its draftsmanship?
Lawrence G. Wallace: --We... we have addressed that in our brief to the best of our ability. We--
John Paul Stevens: Which suggests to me that you don't think it was very good draftsmanship. That's my very point. [Laughter]
Lawrence G. Wallace: --We suggest that the way that provision evolved may be an explanation of why there was a reference to a required four-month period. The provision was dealing entirely with this temporary emergency suspension authority that it... it deals with and that was the focus of congressional attention. And the conclusion that we have come to is that it contemplates that in those situations EPA should act within four months. But it does not in terms impose a four-month requirement nor is there a requirement elsewhere imposed in the Act, nor was it adopted at the time the 1970 provisions that Petitioner is relying on were adopted. So, this is a... a... something that--
John Paul Stevens: Well, even if they're not all adopted at the same time, they're all part of the same statute now.
Lawrence G. Wallace: --That is correct.
John Paul Stevens: Yes.
Lawrence G. Wallace: And they can shed light on one another. And we have attempted to reconcile all of the provisions of the Act in a way that will help them to fit together. There is legislative consideration now of further amendments to the Act, and while--
Byron R. White: It wouldn't make any... I... it wouldn't... wouldn't your position be exactly the same if there was an express four months provision for approval of a plan?
Lawrence G. Wallace: --It certainly would.
Byron R. White: So--
Lawrence G. Wallace: That there should be no enforcement bar nonetheless.
Byron R. White: --Exactly.
Lawrence G. Wallace: And as a matter of fact, we are entirely content with the judgment of the court of appeals, even though we think the court of appeals was wrong in saying--
Byron R. White: Well, every court of appeals has implied a four-month period, contrary to your view.
Lawrence G. Wallace: --Well, we hesitated because of that. But even though they have all said the emperor is draped in that, we cannot find it in the statute. We don't--
Byron R. White: Well, yes, but--
Lawrence G. Wallace: --think it makes--
Byron R. White: --your position--
Lawrence G. Wallace: --much sense.
Byron R. White: --Your position remains the same on enforcement.
Lawrence G. Wallace: It... it remains the same as the First Circuit's position.
Byron R. White: Then, if it does, I don't know why you are... you lie down for the court of appeals' view that... that your enforcement power really is limited by the discretion of a judge to keep you from fining this company if it makes certain determinations.
Lawrence G. Wallace: Well, see... well, we agree with the court of appeals that the question in the penalty phase is whether there was unreasonable delay by EPA to the prejudice of... the company and how that should be taken into account. And the... the four-month interpretation is largely beside the point. To some extent it may mean that four months is by definition not unreasonable, if the statute has specified a four-month period. But we think it can be distracting because it's not there, it's impractical. There were very plausible reasons for Congress to make a difference between the time for acting on the initial submissions and the time for acting on proposed revisions. And we don't think that distraction should be part of this Court's analysis. There's certain--
Antonin Scalia: Mr. Wallace, could you explain to me again what... what effect you do give to... to the... to the reference to the required four-month period in (g)(1)? What effect do you give to that?
Lawrence G. Wallace: --We... we take that--
Antonin Scalia: You say that--
Lawrence G. Wallace: --as a guide that in the situation when the state brings to our attention that it's a temporary emergency suspension-type of situation, where the governor is at least contemplating invoking that authority, that EPA is supposed to act within four months.
Antonin Scalia: --And the suspension only lasts within... for four months?
Lawrence G. Wallace: He can then suspend it for four months. As we read that statute, that is after the four-month period within... in which it is pending before EPA. That statute is set forth in the appendix to our brief.
Antonin Scalia: (1)(a), right.
Lawrence G. Wallace: On the very first page of the appendix to our brief. And the governor's authority--
Antonin Scalia: Right.
Lawrence G. Wallace: --after the little inset part--
Antonin Scalia: Right.
Lawrence G. Wallace: --it says, which the administrator has not approved or disapproved under this section within the required four-month period. So it seems to us plain on the face of it that the governor's suspension authority arises if the administrator has not approved or disapproved within four months. And it just doesn't precede that. And that is why the court of appeals was correct in saying that this provision in 1977 indicated that Congress thought no enforcement bar would otherwise be available and Congress had to provide a limited enforcement bar for this situation of the temporary emergency suspensions. And even there where they thought an enforcement bar would be warranted, they limited it to a four-month suspension.
Antonin Scalia: I see.
Lawrence G. Wallace: So the court of appeals felt that in interpreting the Act as not otherwise allowing the courts to impose an enforcement bar, it was reconciling the '77 amendments with the '70 Act. In fact, the court of appeals really understated it because otherwise the '77 amendment would be that the temporary emergency suspensions would have only a four-month enforcement bar and other proposed revisions would have an indefinite enforcement bar.
Anthony M. Kennedy: But getting back to the statute, you simply take the words "the required" and say they're synonymous with the word "a"?
Lawrence G. Wallace: Well--
Anthony M. Kennedy: "Within a four-month period"?
Lawrence G. Wallace: --We think... yes. The answer is yes and we think that it evolved because there was a requirement at one time in the House version of that bill in 1977. And there may not have been an adjustment in the statutory language. But that has to be surmise on anyone's part. The background of the... of the consideration of that amendment would suggest why it may be worded that way, Mr. Justice. And that's the best we can say about it.
Antonin Scalia: Mr. Wallace, I'm... I'm a little surprised that the government is so lackadaisical about, you know, whether it's four months or who cares whether it's a four-month requirement or not. You're clearly not even trying to meet the four-month requirement. I mean, if it's a provision of law, you should be breaking your back to meet it. But you come in here and say, well, you know, maybe it's four months, maybe it isn't four months, what do we care.
Lawrence G. Wallace: Mr. Justice, I thought we were quite clearly saying that the four-month requirement does not apply and would be impractical to try to apply--
Antonin Scalia: But you said you're perfectly content to accept a lower court's decision on that and all the other courts of appeals which have said you're supposed to be acting within four months.
Lawrence G. Wallace: --If... if--
Antonin Scalia: I would think that that's... that's the part of this case you should be most upset with. If you... If I conveyed that impression, I... I did not mean to convey that impression. We are not content to accept that reading of the statute. It happens to be immaterial to the judgment of the court of appeals in this case which we're defending, which is that no enforcement bar should apply and that the question in the penalty phase is whether EPA delayed unreasonably in the circumstances of the particular case. The case, as GM charges... it is really true that EPA is not even trying to comply with the four-month period.
Lawrence G. Wallace: --Well, we don't believe it applies to us, and that is our submission to this Court. We're not, in our view, violating the statute. It certainly is not an express requirement of the statute, and we've explained in some detail in our brief why the notice and comment procedure under the Administrative Procedure Act, the difficulties in making the scientific determinations that must precede the proposed approval or disapproval that's to be published to institute the notice and comment procedure, the fact that methodologies vary so much among the states that it's often necessary for both the EPA regional office and for the national staff to be involved because of--
Antonin Scalia: But... but, Mr. Wallace, you say it's not part of the statute, but it is a part of the statute as construed by several courts of appeals, which normally creates some kind of a duty to comply.
Lawrence G. Wallace: --Well, we're... we're doing the best we can, but we... we--
Antonin Scalia: No, you're not. You're not even trying to do it within four months.
Lawrence G. Wallace: --Well, we--
Antonin Scalia: You're not even trying. Partly because you know it can't be done, but... but-- [Laughter]
Lawrence G. Wallace: --We're... the--
Antonin Scalia: Well, maybe it's very--
Lawrence G. Wallace: --There are other obligations under the Act, substantive obligations in the way we're to handle these proposed revisions, which have to be reconciled with whatever time limit the courts might think is the statutory guide to regulatory action. I... I... I will say that this question is getting explicit consideration in the current amendments, which are still in an early stage. But the Senate committee, the Senate Environment Committee, has reported out a bill which is now on the floor of the Senate. That bill is S. 1630, and for the first time it explicitly does have a time limitation for EPA's consideration of proposed revisions, and it's 12 months--
Antonin Scalia: --Well--
Lawrence G. Wallace: --in... in the bill as it now exists. And there is another provision--
Antonin Scalia: --Is this bill drafted by the same guy that put in the required four-month period? [Laughter]
Lawrence G. Wallace: --And there is another provision that relates to the issue of this case, and I will read that sentence to the Court. It is... says, "Notwithstanding any other provision of this Act, each provision of such implementation plan and each permanent effect under such plan shall remain in effect and shall be enforced under this Act until a revision of such plan is approved by the administrator or a plan as promulgated by the administrator under Subsection (f). " where he has to promulgate a Federal plan. So, in addition to the 12-month requirement, the bill, as it's now pending, repudiates the American Cyanamid rule even in the context of a 12-month benchmark.
Antonin Scalia: By way of anticipatory subsequent legislative history?
Lawrence G. Wallace: Well, I... I'm-- [Laughter] --just pointing out that Congress is dealing with... with the question explicitly now, and it perhaps corroborates our point that our interpretation of the present Act is not so implausible that the courts would be justified in reading into it two provisions that are not there, one a four-month requirement and the other an enforcement bar. Since neither the legislative history nor the text of the Act would support the erection of those requirements by the courts, the only possible justification would be that the Act would be so implausible without them that the courts have to feel themselves under a duty to impose them.
Harry A. Blackmun: Maybe, again, Mr. Wallace, we're dealing with very bad draftsmanship in Congress. It's not the first time.
Lawrence G. Wallace: Not... not the first time. Congress has many responsibilities, just as the EPA does and others in the government do. Now, I want to point out in the very limited time that I have a very important point made in the Massachusetts brief, if I may, which is footnote 13 on page 23 of that brief, which is the most cogent point that has been made in response to the attempt to distinguish this Court's decision in Brock against Pierce County on the ground that here the enforcement authority would be barred only temporarily and can be regained after EPA takes action on the proposed revision. And Massachusetts and the sister states point out very properly that the Act applies to a large variety of problems, including some that endanger human health, such as the carbon-monoxide problem, where hourly measurements have been required, that temporary suspensions would be... of enforcement authority would be an extreme misfit in this Act dealing with very serious problems of public health.
John Paul Stevens: Yeah, but they're only temporary enforcement after the state has said, we think it's perfectly safe to do it.
Lawrence G. Wallace: That is--
John Paul Stevens: So then emergency you're talking is rather unlikely to arise.
Lawrence G. Wallace: --Well, still and all, we're talking about interpreting an act that applies to a variety of emissions, some of which are much more serious in their short-term effects than others, and mistakes are made in these submissions, and mistakes that can have serious consequences. The citizens' suit provision is another one that--
William H. Rehnquist: I think you've answered the question, Mr. Wallace. Mr. Garrett, do you have rebuttal?
Theodore L. Garrett: Just a few brief points, Your Honor. In response to the last point concerning emergencies, it should be understood that our position is that EPA does have authority under a separate provision of the statute to deal with those, and we would not claim a bar to deal with those kinds of emergencies. Our request for a bar only deals with state implementation plans. With respect to the commingling point and Mr. Wallace's comments about the government policy with respect to the negotiations of a DCO, the negotiations were simply that the government wanted GM to pay penalties as a price for getting the SIP revision. They weren't asking GM to make any other improvements or do anything else. They had just changed their policies on whether or not SIP revisions could be allowed for these purposes as a revision or whether a DCO with penalties was the appropriate remedy. And I would urge the Court to look at the Hannish memo... it's a May 1986 memorandum by an EPA official that we've lodged with the Court. It demonstrates the moving target problem in our brief. Mr. Wallace said that the Cyanamid remedy, or the temporary bar on enforcement is an extreme remedy. Well, we would submit to the Court that the mandamus remedy, or the First Circuit's remedies, are much more intrusive and extreme than the remedy that we propose.
William H. Rehnquist: Thank you, Mr. Garrett. The case is submitted.