UNITED STATES OF AMERICA, PETITIONER V. STAUFFER CHEMICAL COMPANY No. 82-1448 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition for a writ of certiorari to the United States Court of Appeals For the Sixth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-41a) is reported at 684 F.2d 1174. The court of appeals' order upon denial of a petition for rehearing (App. B, infra, 42a-43a) is unreported. The opinion of the district court (App. C, infra, 44a-56a) is reported at 511 F. Supp. 744. JURISDICTION The judgment of the court of appeals (App. D, infra, 57-58a) was entered on July 7, 1982, and a timely petition for rehearing was denied (App. B, infra, 42a-43a) on October 15, 1982. On January 3, 1983, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including February 27, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED Section 114(a) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7414(a) provides in pertinent part: (2) the Administrator or his authorized representative, upon presentation of his credentials -- (A) shall have a right of entry to, upon, or through any premises of such person, or in which any records required to be maintained under paragraph (1) of this section are located, and (B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under paragraph (1), and sample any emissions which such person is required to sample under paragraph (1). QUESTIONS PRESENTED 1. Whether the United States may be collaterally estopped from litigating a question of statutory interpretation of public importance governing the relationship between a federal agency and members of a large class of businesses subject to the agency's jurisdiction by the judgment of the court of appeals for a different circuit rendered in another case involving the same private party but arising from a separate transaction at a different location. 2. Whether a contractor retained by the Environmental Protection Agency specifically for the purpose qualifies as an "authorized representative" of EPA's Administrator entitled to participate in agency inspections of stationary emission sources pursuant to Section 114(a) (2) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7414(a)(2). STATEMENT 1. This case arises from respondent's challenge to use of a contractor duly designated as a representative of the United States Environmental Protection Agency to assist EPA employees in conducting an inspection of a stationary emission source under Section 114(a)(2) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7414(a)(2). EPA contracted with PEDCo Environmental, Inc. to assist with technical aspects of an overview inspection of an elemental phosphorus production plant operated by respondent located in Mt. Pleasant, Tennessee. /1/ EPA took steps necessary to ensure that information learned by employees of its inspection contractors during inspections was kept confidential. Thus, the terms of EPA's contract with PEDCo hold PEDCo and its employees to strict confidentiality (App. B, infra, 53a-54a). PEDCo, in turn, contracts with its employees that any violation of their confidentiality duties "will result in immediate dismissal and liability for any damages arising therefrom" (id. at 53a-54a n.5). Moreover, under EPA regulations, private contractors retained by the agency agree that regulated businesses that have an interest in confidential information disclosed to contractor personnel are intended beneficiaries of any applicable confidentiality agreement and may enforce such agreements against any breaching employee. 40 C.F.R. 2.301(h)(2)(ii). EPA officials attempted to inspect respondent's Mt. Pleasant plant in March of 1980. When EPA personnel, accompanied by representatives of the Tennessee Division of Air Pollution Control, and assisting personnel from PEDCo arrived at the plant, respondent denied entry to the PEDCo employee. In ensuing negotiations, respondent attempted to condition admission of PEDCo personnel upon adherence to terms respondent had fixed. In addition to confidentiality requirements and provisions for liability in damages in the event of any breach, the agreement proposed by respondent would have afforded it absolute authority to determine the areas of the plant to be inspected, and required the contractor (and thus EPA) to give it two weeks' advance notice of any inspection (App. A, infra, 6a). EPA deemed these provisions unacceptable. Thereafter, on August 7, 1980, EPA secured an administrative warrant from a federal magistrate authorizing inspection of respondent's Mt. Pleasant, Tennessee facility. The warrant covered inspections by EPA employees and "accompanying, authorized representatives under contract to EPA." EPA and state officials, again accompanied by a PEDCo employee, again attempted to inspect respondent's Mt. Pleasant phosphorus plant pursuant to the warrant. Respondent again refused to permit the PEDCo employee to participate in the inspection of the plant unless its terms for admission were accepted. 2. The following day, August 8, 1980, EPA sought to have respondent held in civil contempt by the United States District Court for the Middle District of Tennessee for its refusal to honor the warrant. Respondent countered with a motion to quash the warrant. Respondent argued that Section 114(a)(2) of the Clean Air Act, which empowers the EPA Administrator "or his authorized representative" to enter upon the premises of stationary pollution sources to sample emissions, does not sanction entry by contractors retained by EPA to assist in such inspections. /2/ The opposed applications were consolidated for hearing. On April 17, 1981, the district court denied the motion to quash, holding that the inspection authority granted to "authorized representative(s)" of the EPA Administrator by Section 114(a)(2) extends to properly designated private contractors (App. C, infra, 44a-55a). /3/ However, because respondent's noncompliance with the warrant was based upon its good faith "belie(f) that private contractors were not authorized representatives (under the Clean Air Act)," EPA's contempt motion was also denied, without prejudice to its renewal in the event respondent persisted in its refusal to honor the warrant (id. at 56a). Although it observed that the question of statutory interpretation presented was a close one that had divided the district courts (App. C, infra, 46a-47a & n.2; see page 4 note 2, supra), after canvassing the pertinent statutory language, related statutory language and pertinent statutory legislative history, the district court was persuaded that the Administrator's authority to designate an "authorized representative" under Section 114(a)(2) is not confined to employees of EPA. First, the district court noted that Section 114(c) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7414(c) (which was enacted together with Section 114(a) as part of the 1970 Clean Air Act amendments), authorizes disclosure of confidential information obtained pursuant to a Section 114(a)(2) inspection to "other officers, employees or authorized representatives of the United States concerned with carrying out" the provisions of the act. Because the term "authorized representatives" in this closely related setting necessarily encompasses personnel other than officers and employees of the United States, such as authorized contractors, the district court concluded that the identical term employed in Section 114(a)(2) was to be accorded like scope (App. C, infra, 48a, 51a-52a). Second, the district court noted that the House version of the Clean Air Act Amendments had limited entry and inspection authority to "officers or employees duly designated by the Secretary," /4/ whereas the Senate version, the one ultimately enacted, was broader, encompassing "the Secretary or his authorized representative." Because the plain meaning of the term "authorized representative" extends beyond agency officers and employees to all who are in fact the duly authorized agents of the Administrator, the district court concluded that agency contractors could participate in Section 114(a)(2) entries and inspections (App. C, infra, 50a-51a). Third, the district court concluded that the usual practice of conducting searches with government personnel did not require a different reading of Section 114(a), because the Clean Air Act embodies a system of comprehensive monitoring of pollution emissions unknown at common law and with no counterpart in traditional police power enforcement schemes, because Congress had recognized the need for technical expertise possessed by contractors in implementation of the Clean Air Act, and because Section 114(c) of the Act makes clear that duly designated contractor-representatives can be provided access to information gained in Section 114(a)(2) inspections, even when such information is confidential (App. C, infra, 52a). /5/ The district court also concluded that respondent's concerns respecting confidentiality of proprietary information that might be disclosed to inspection agents did not require limitation of Section 114(a)(2) inspection authority to EPA personnel. Observing that Section 114(c) explicitly authorized disclosure of such confidential data to authorized EPA agents, the court concluded that Congress could not have regarded contractor access to such data to be incompatible with maintenance of confidentiality. Accordingly, the court treated the issue as one of the adequacy of the safeguards available to respondent in this particular case and concluded that the confidentiality provisions of EPA's contract with PEDCo and PEDCo's contract with its employees, together with EPA's regulations empowering respondent to enforce the confidentiality requirements of the foregoing agreements by appropriate legal and equitable remedies, were sufficient to dispel any legitimate concern respecting maintenance of confidentiality, in the absence of any evidence that PEDCo was in competition with respondent in any business (App. C, infra, 53a-55a). The district court also rejected respondent's contention that Section 114(a)(2), which governs inspections of stationary pollution sources (i.e. industrial plants), should be interpreted to conform with Sections 206(c) and 208(a) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7525(c) and 7542(a). The latter provisions govern inspections of motor vehicle plants, and describe the persons authorized to carry out such inspections as "officers and employees duly designated by the Administrator." The district court, concluded instead that the disparate provisions of Section 114(a)(2) and Sections 206(c) and 208(a) should be assigned their natural and distinct meanings, and that the difference "reflect(s) a measured congressional choice" (App. C, infra, 48a). The district court also considered legislative history of Section 308 of the Clean Water Act, 33 U.S.C. (& Supp. V) 1318, which was modeled upon Section 114 and enacted in 1972, two years after Section 114(a)(2), suggesting that inspection authority under the Clean Air Act was limited to EPA employees. /6/ Although the language "g(a) ve the court pause," it ultimately concluded that such post-enactment legislative history was due relatively little weight in determining the intent of Congress in 1970 when Section 114(a)(2) was enacted. The court concluded that Congress' choice of the broad "authorized representative" language of the Senate bill, in place of the "officers or employees" language of the House bill, was a more telling indication of the pertinent congressional intent (App. C, infra, 48a-50a). 3. On appeal, respondent argued for the first time that the decision in In re Stauffer Chemical Co., 14 Env't Rep. Cases 1737 (D. Wyo. 1980), aff'd, 647 F.2d 1075 (10th Cir. 1981) ("Stauffer I"), collaterally estopped the United States from contending that the term "authorized representative" employed in Section 114(a)(2) includes a duly designated EPA contractor. Stauffer I presented the same legal question as this case, but arose from respondent's resistance to an administrative warrant authorizing inspection by EPA and its contractors of respondent's phosphate ore processing plant in Sage County, Wyoming. As previously indicated (see page 4 and note 2, supra), prior to the district court decision in the instant case the Wyoming district court had held in Stauffer I that Section 114(a)(2) does not permit EPA contractor personnel to assist in inspections, but respondent had not argued that that decision was to be afforded preclusive effect. Subsequent to the entry of the district court's decision in the instant case, the United States Court of Appeals for the Tenth Circuit affirmed the district court's judgment in Stauffer I, albeit cautioning that the issue was not "an open and shut matter" and acknowledging that under its decision the Clean Air Act is "not entirely internally consistent." 647 F.2d at 1079. An unusually fragmented court of appeals reversed the decision of the district court in this case (App. A, infra, 1a-41a). While all members of the panel concurred in the judgment, the reasoning of each member was distinct, and each judge wrote separately. Judge Weick delivered what was characterized (id. at 1a) as the opinion of the court (id. at 1a-33a). Although he "agree(d) with Stauffer that the action is governed by estoppel and res judicata" and that it was therefore "unnecessary to reach other issues," Judge Weick went on to reach the merits "because they were briefed by both parties" (id. at 4a) concluding that Section 114(a)(2) does not permit EPA contractors to participate in inspections of stationary pollution sources. Judge Jones joined only in Judge Weick's discussion of collateral estoppel, stating that "the application of the doctrine precludes this Court from addressing the merits of the issue presented" (id. at 34a). District Judge Siler (sitting by designation), on the other hand, concurred only in Judge Weick's opinion on the statutory issue, concluding that "the doctrines of collateral estoppel and res judicata should not be applied here" (id. at 39a). Thus, each branch of Judge Weick's opinion spoke for a majority of the court, and the judgment of the court of appeals rests upon alternative holdings. /7/ a. Collateral Estoppel -- Because "the parties as well as the issues of fact and law in the present case and Stauffer I were identical" (App. A, infra, 11a), Judge Weick concluded that the doctrine of collateral estoppel described in Montana v. United States, 440 U.S. 147, 153-154 (1979), was controlling (App. A, infra, 8a-13a). He concluded, moreover, that the "unmixed questions of law" exception to the rule of preclusion noted in Montana (440 U.S. at 162, quoting United States v. Moser, 266 U.S. 236, 242 (1924)), was inapposite, characterizing the issue presented on the merits as one governed by a "fact, question or right distinctly adjudged" in Stauffer I, rather than "a rule of law (enunciated) * * * in a subsequent action upon a different demand" (United States v. Moser, supra, 266 U.S. at 242) (App. A, infra, 12a-13a). Finally, Judge Weick condemned the government's effort to "relitigate()" (id. at 12a) the issue decided in Stauffer I, stating (ibid; emphasis added) that the government's persistence brings up the question, how many times does the government have to lose a case before either the doctrines of collateral estoppel or res judicata are applied? If we were dealing with private parties rather than the government, there would be no question about it. If EPA really believed the decision of the Tenth Circuit in Stauffer I was wrong, it could have petitioned the Supreme Court for certiorari, but it did not avail itself of that remedy, and it is too late to do so now. EPA cannot collaterally attack the Tenth Circuit decision in the present case. By contrast, Judge Siler concluded that collateral estoppel had no application in this case (App. A, infra, 39a-41a). He stressed that the "federal appellate courts 'traditionally have permitted federal agencies to relitigate substantially identical legal issues raised by different transactions or events, after adverse decision elsewhere'" (id. at 40a, quoting Western Oil & Gas Ass'n v. EPA, 633 F.2d 803, 808 (9th Cir. 1980)). Judge Siler explained further that the issue preclusion rule was not to be applied so as to create an injustice. He concluded that such an injustice would result from application of collateral estoppel "if EPA were precluded from entering with private contractors at Stauffer's plant in Tennessee, but were using private contractors in entering competitor's plants in the same area" (App. A, infra, 40a-41a). Judge Siler concluded (ibid.), moreover, that where several different cases involving the same issues are being litigated simultaneously in separate circuits, collateral estoppel should not be invoked. Judge Jones wrote separately on the collateral estoppel issue, explaining his concurrence in that branch of the court's opinion (App. A, infra, 34a-38a). Under Montana v. United States, supra, Judge Jones recognized (App. A, infra, 35a), collateral estoppel is not to be applied where "controlling facts or legal principles have changed significantly" since the judgment in a prior case, or where "other special circumstances warrant an exception to the normal rules of preclusion" (440 U.S. at 155). However, Judge Jones found these exceptions inapplicable (App. A, infra, 35a-36a). He discounted Judge Siler's concern that application of collateral estoppel would foster uneven application of the law to parties similarly situated, urging that application of different rules of law to respondent's facilities in different locations would create a more serious inequity. And even though he had concluded that it was improper for the court to have reached the merits, given the applicability of collateral estoppel (id. at 34a), Judge Jones observed that because the other two members of the panel had reached the merits, the inequity that troubled Judge Siler was "illusory." He explained: "(T)he stare decisis impact of the Court's holding today, if it becomes final, may be expected to eliminate the practice (of contractor-assisted inspections) in this jurisdiction" (id. at 37a; citation omitted). Finally, while Judge Jones agreed with Judge Siler that federal agencies ordinarily should be able to litigate controlling legal issues in more than a single circuit, he thought that rule inapplicable where the adverse party in the prior case is the same as the present one, and "the same defendant is sued in seriatim without the agency attempting to exhaust its appeals on the previous judgment." (id. at 37a, 38a). b. Interpretation of Section 114(a)(2) -- Writing for himself and Judge Siler, Judge Weick turned to the underlying question of statutory interpretation (App. A, infra, 13a-33a). At the outset, Judge Weick acknowledged the proper interpretation of the statute was not free from doubt, and that under his interpretation internal inconsistencies in the Clean Air Act remained (id. at 16a-17a). /8/ He also recognized (App. A, infra, 15a-16a) that the decision of the Tenth Circuit in Stauffer I was at odds with the subsequent decision of the Ninth Circuit on the same issue rendered in a case not involving respondent, Bunker Hill Co. v. EPA, 658 F.2d 1280 (1981) ("Bunker Hill"). Nevertheless, after canvassing the pertinent statutory language and legislative history, Judge Weick concluded that Section 114(a)(2) of the Clean Air Act does not countenance assistance by contractors designated as EPA representatives in carrying out the inspections of stationary pollution sources authorized. The court of appeals initially rejected EPA's contention that the plain meaning of the term "authorized representative" extended to contractor-representatives designated by EPA (App. A, infra, 17a). The court also concluded that no weight could be attributed to Congress' adoption in 1970 of the broad language "authorized representative" from the Senate bill, in preference to the terms "officers or employees" contained in the analogous provision of the House bill, because the respective legislative reports do not address the present question. Moreover, the court of appeals observed that the Conference Report made no mention of any distinction, and indeed, summarized the provisions of the alternative bills in nearly identical terms (i.e., authorizing entry and inspection by "DHEW investigative personnel" as opposed to "DHEW personnel"). The court therefore concluded that Congress intended that the term "authorized representative" serve as a synonym for "officers or employees" (App. A, infra, 17a-20a). In addition, the court of appeals stated that Section 114(d) of the Act, 42 U.S.C. (Supp. IV 7414(d), added by 1977 amendments, which requires "the Administrator (or his representatives)" to give notice to the appropriate state air pollution control agency before making inspection under Section 114(a)(2), supports respondent's reading of the term representative in the latter Section. The court reasoned that Congress could not have entrusted "this kind of sensitive intergovernmental communication to employees of private contractors," and that the term "representatives" used in Section 114(a)(2) should be given a similarly narrow reading to conform to Section 114(d) (App. A, infra, 20a-21a). Moreover, the court of appeals rejected the conflicting observation of the district court (see page 5, supra) that Section 114(a) should be read in conformity with Section 114(c). Although the court of appeals did not dispute that the term "authorized representatives" as employed in Section 114(c) extends the right to disclosure of confidential material to EPA contractors (App. A, infra, 21a), it thought to harmonize all three provisions as follows (id. at 22a): (T)he word "representative" as used in section 114 of the Clean Air Act means EPA officers or employees, unless the latter are already enumerated, as they are in Section 114(c). In that event, the plain meaning of "representative," i.e., one standing or acting for another through delegated authority, controls. The Court recognized that the result of its interpretation was to assign two different meanings to the term "representative" as used in Section 114, but it thought this result unavoidable (ibid.). Moreover, the court reasoned that because the term "representative" employed in Section 114(c) necessarily denotes persons other than EPA employees, a homologous interpretation of Section 114(a)(2) would mean that the administrator could make inspections of stationary pollution sources only through persons other than agency employees (ibid.). EPA also argued that because Section 301(a) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7601(a), authorizes the Administrator to delegate any of her duties (save only the promulgation of regulations) to "any officer or employee of the (EPA)," the term "authorized representative" employed in Section 114(a)(2) is superfluous unless it extends to persons other than EPA personnel such as contractors. Labeling this contention "ingenious" (App. A, infra, 23a) the court of appeals nonetheless concluded that "a more natural reading (of Section 114(a)(2) is that 'authorized representative' contemplates the delegation authorized by Section 301(a)" (ibid.). The court found its task to be "complicated" by the disparate language employed in the statutory provisions authorizing inspection of motor vehicle engines at the manufacturers' plants (App. A, infra, 23a; see page 7, supra). The court recognized that the use of broader language in Section 114(a) could "just as logical(ly)" (App. A, infra, 24a, 30a) be taken to indicate congressional approval of the participation of agency contractors in statutory inspections. But because there is no mention in the legislative history of an intent to differentiate between authority to inspect stationary sources and authority to inspect motor vehicle engines, and because, in the court's view, "(i)t would be illogical and inconsistent" to interpret Section 114(a)(2) so as to vest EPA with broader authority as to stationary sources, a narrow reading of Section 114(a)(2) was adopted (App. A, infra, 25a). Moreover, unlike the district court (see page 7, supra) and the Ninth Circuit (see Bunker Hill, supra, 658 F.2d at 1284), the court of appeals attached substantial weight to post-enactment legislative history respecting the 1972 Amendments to the Clean Water Act (App. A, infra, 26a-29a). The court reasoned that the timing and authorship of the Senate report on Section 308 of the Water Act lent substantial authority to the view expressed respecting previously enacted provisions of the Clean Air Act (App. A, infra, 28a). In any event, the court thought it "anomalous" (id. at 29a) that contractor-assisted inspections be permitted under the Clean Air Act, but not under counterpart provisions of the Clean Water Act (ibid.). /9/ REASONS FOR GRANTING THE PETITION The twin holdings of the court of appeals both present issues of general and practical importance that warrant further review. The collateral estoppel branch of the court of appeals decision presents an important question respecting the preclusive effect of decisions of lower federal courts upon legal questions of public importance that affect relations between a government agency and a broad class of similarly situated persons. The court of appeals' suggestion that the United States was bound to seek review in this Court of the Tenth Circuit's decision in Stauffer I or else be bound thereby is obviously irreconcilable with this Court's certiorari practice, and would moreover require a radical alteration of the practices of the Solicitor General. If allowed to stand, the decision betokens a substantial shift of workload from the courts of appeals to this Court. Moreover, the court of appeals' decision takes no account of the special considerations applicable to government litigation on questions of public law of widespread applicability that have been generally thought to preclude applications of collateral estoppel against the government in such settings. See, e.g., American Medical International, Inc. v. Secretary of Health, Education, and Welfare, 677 F.2d 118, 121-124 (D.C. Cir. 1981); Olegario v. United States, 629 F.2d 204, 215 (2d Cir. 1980), cert. denied, 450 U.S. 980 (1981). Even if the rule announced were confined to instances in which the party adverse to the government is the same as in the prior case in which an issue was litigated, the decision of the court of appeals would substantially affect the government's litigating practices and impose substantial burdens upon this Court, for it is frequently impossible to know in advance whether the issue decided against the government in a given case will reoccur in litigation with the same party. In any event, as to questions of public law, the decision of the court of appeals fosters an unacceptable disparity in the application of the laws to similarly situated persons. Insofar as the decision of the court of appeals turns upon the identity of the parties in this case and Stauffer I it is contrary to the D.C. Circuit's decision in American Medical International, Inc. v. Secretary of Health, Education, and Welfare, supra, 677 F.2d at 124. The court of appeals' holding respecting Section 114(a) of the Clean Air Act also merits review. As the court of appeals acknowledged its decision creates a clear conflict with the Ninth Circuit decision in Bunker Hill Co. v. EPA, 658 F.2d 1280 (1981). That decision in turn deliberately rejected the Tenth Circuit's reasoning in Stauffer I. Because the court of appeals' decision eliminates an important tool employed by the EPA to assure enforcement of the nation's clean air laws, this sharply-drawn conflict merits resolution at this time. 1. Contrary to the view of the court of appeals, Montana v. United States, 440 U.S. 147 (1979), is not controlling here. As the Court indicated there, 440 U.S. at 155, collateral estoppel is inapplicable whenever "special circumstances warrant an exception to the normal rules of preclusion." We submit that the unique attributes and role of the United States as a litigant involve special circumstances that strongly militate against the application of the preclusion doctrine to government at least when it is engaged in the uniquely sovereign function of enforcing the public law, which governs the legal relations of federal agencies with broad classes of similarly situated persons or businesses. /10/ These considerations have been fully outlined in our petition for a writ of certiorari and reply brief in United States v. Mendoza, cert. granted, No. 82-849 (Jan. 24, 1983), copies of which have been provided to respondent. We summarize them here. First, unlike cases involving only private litigants, application of the issue preclusion doctrines in cases involving the United States must take account of the unique public interest in the uniform and rigorous enforcement of laws of general importance and applicability. See Standefer v. United States, 447 U.S. 10, 24-25 (1980); INS v. Hibi, 414 U.S. 5, 8 (1973). Here, as in Standefer, this public interest outweighs the considerations that ordinarily underlie the preclusion doctrine. Second, critical practical and legal realities that are present wherever the United States is engaged in litigation on recurring questions of law of widespread applicability argue strongly against the estoppel invoked by the court of appeals. The government is involved in far more litigation than any other party. Many legal issues of substantial public importance arise only in government litigation, moreover. See American Medical International, Inc. v. Secretary of Health, Education, and Welfare, supra, 677 F.2d at 121 n.24. (The underlying question of statutory interpretation in this case is typical in this respect.) Thus application of collateral estoppel to bar redetermination of such a legal question by a court of rank coordinate to one that has rendered a decision adverse to the government would substantially interfere with the operation of the prevailing system of development of the public law. In that system courts of coordinate rank are not bound by each other's decisions but apply instead the more flexible doctrine of stare decisis. Conflicts are resolved through the hierarchical process of appeal, en banc review and certiorari. As the courts of appeals and respected commentators have generally recognized, these considerations ordinarily preclude application of collateral estoppel to the government on recurring legal issues. American Medical International, Inc. v. Secretary of Health, Education, and Welfare, supra, 677 F.2d at 121-124; Western Oil & Gas Ass'n v. EPA, 633 F.2d 803, 808 (9th Cir. 1980); Divine v. Commissioner, 500 F.2d 1041 (2d Cir. 1974); Restatement (Second) of Judgment Section 29, comment i (1980). Third, invocation of collateral estoppel against the government on recurring legal issues is inappropriate because, through the Office of the Solicitor General, the government, unlike any other litigant, employs a formal mechanism for determining whether to take an appeal from or seek certiorari review of an adverse judgment. This process is relatively selective, particularly at the ceritorari stage. Moreover, to a degree unmatched by any private party the government takes into account factors other than its narrow interest in prevailing in a particular lawsuit in making this selection. Thus the Solicitor General frequently decides against appeal or certiorari even though the legal conclusions of the deciding court are believed to be erroneous. Such determinations rest upon a host of other factors including a substantial measure of prosecutorial discretion, equitable and policy considerations, the perceived practical importance of the decision, limitations upon the resources of the government, and sensitivity to crowded dockets of the courts. Because of the substantial volume of government litigation, and the substantial share of this Court's limited docket already occupied by government cases, self-restraint is particularly necessary in connection with filing of petitions for a writ of certiorari. This case well illustrates these considerations. No petition was filed in Stauffer I. But at the time the case was decided there was no conflicting decision of any court of appeals. Moreover, the pendency in the Ninth Circuit of Bunker Hill, an appeal from a district court decision favorable to the government, as well as the pendency of respondent's appeal to the Sixth Circuit from the district court's decision in this case, necessarily counseled against application to this Court for further review in Stauffer I. Any other course would have ignored this Court's announced certiorari practices, see Sup. Ct. R. 17.1(a), and would have disserved both the Court and those litigants who compete for a place on its crowded docket. Adoption of the novel rule endorsed by Judge Weick (see pages 9-10, supra) would compel the United States to reconsider this practice of selective pursuit of appeals and certiorari even though it benefits the public interest and facilitates sound judicial management. Instead, the government would be obliged to consider an inflexible policy of appealing (and even seeking certorari on) the first adverse decision rendered on a legal issue. As a result, the courts of appeals and this Court would be burdened prematurely and unnecessarily, and judicial economy -- the touchstone of the preclusion doctrine -- would be disserved. Moreover, because of the limited docket of this Court, and the proliferation of statutes and litigation in recent years, constructions of the law that this Court might ultimately determine to be erroneous would more often be given finality. See, e.g., United States v. Foster Lumber Co., 429 U.S. 32 (1976) (rejecting the view of three courts of appeals); NLRB v. Enterprise Association of Pipefitters, 429 U.S. 507 (1977) (rejecting the view of five courts of appeals). Plainly, there is no interest served by invocation of collateral estoppel in the circumstances of this case that would justify these detrimental consequences. 2. The court of appeals evidently concluded that these foregoing principles had no application in the setting of this case because respondent was the party adverse to the government in Stauffer I as well as in the present case (App. A, infra, 11a, 12a-13a (opinion of Weick, J.); id. at 37a-38a (opinion of Jones, J.)). And in Judge Weick's view, this case was directly controlled by the holding of Montana v. United States, supra. We disagree on both accounts. a. We recognize the force that ordinarily attaches to the distinction between relitigation of issues between parties that have previously litigated them; and relitigation when there is no such identity of parties. In the former situation, a party ordinarily can not claim surprise when it finds itself bound by a judgment rendered against it, even on a question of law, if neither the factual or legal setting is unchanged. American Medical International, Inc. v. Secretary of Health, Education, and Welfare, supra, 677 F.2d at 121 n.24, 124 & n.46. But where, as here the issue is a recurring one of public law applicable to a significant class of similarly situated persons, application of collateral estoppel to preclude independent determination of the issues by courts that subsequently consider the issue would -- as Judge Siler recognized (App. A, infra, 40a-41a) -- improperly afford the party that happened to be involved in the prior case decided against the government a favored position in the administration of the law. American Medical International, Inc. v. Secretary of Health, Education, and Welfare, supra, 677 F.2d at 124. As the American Law Institute has recognized (Restatement (Second) of Judgments, supra, at Section 28): ((R)elitigation of (an) issue (previously determined) in a subsequent action between the parties is not precluded (when): * * * * * (2) The issue is one of law and * * * a new determination is warranted in order * * * avoid inequitable administration of the laws * * * . Contrary to Judge Jones' suggestion (App. A, infra, 36a), it is no answer to observe that refusal to apply collateral estoppel will entail a different kind of disparity in the application of the laws -- one that depends upon geography. First, refusal to reach the merits need not have that effect, for the doctrine of stare decisis and the persuasive force of the decision of court of coordinate or inferior rank will in the long run, at least, minimize such "inequities." More importantly, perhaps, the kind of unevenness of result permitted by redetermination of recurring questions of public law is essentially inoffensive. It is a natural result of the operation of a system of lower courts with limited geographical jurisdiction, and a Supreme Court with control over its limited docket. On the other hand, application of different rules of law to persons similarly situated is in tension with fundamental values of equal justice. Compromise of those values is ordinarily warranted by the competing desiderata of judicial economy, protection of parties against multiple lawsuits, and the role preclusion ordinarily plays in minimizing inconsistent judgments. See Montana v. United States, supra, 440 U.S. at 153-154. But none of these values is advanced by application of collateral estoppel in a setting such as the present one. First, because the issue is one of law and its determination entails no trial-type proceedings, little if any economy is achieved by invocation of collateral estoppel. See page 23, infra. And whatever savings may properly be gained when relitigation is not justifiable, are fully achievable under the more flexible doctrine of stare decisis and through due regard for the decisions of coordinate courts. Second, when a recurring question of public law applicable to numerous parties is presented, reliance upon preclusion to govern cases arising between the parties to the original litigation, would on balance foster inconsistent judgments rather than reduce their incidence. And where, as here, the decision afforded preclusive effect is itself inconsistent with the decision of another court of coordinate rank, invocation of collateral estoppel plainly cannot eliminate inconsistent judgments. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330 & n.14 (1979). The burden of multiple lawsuits, moreover, is a significantly less weighty consideration where, as here, multiple litigation arises from a federal agency's application of a uniform interpretation of a statute applicable to a host of similarly situated parties. By engaging in a regulated business within the various judicial circuits, each of which is ordinarily free (subject only to this Court's decisions) to interpret statutes for itself, respondent subjected itself to the possibility that it would become engaged in parallel litigation presenting a common legal question. See page 22 note 11, infra. Contrary to Judge Jones' suggestion (App. A, infra, 38a), respondent's engagement in multiple litigation is not the result of some effort by EPA to "test its policy decisions in more than a single circuit, in circumstances where the same defendant is sued in seriatim without the agency attempting to exhaust its appeals on the previous judgment." Rather, this case, like Stauffer I, arises from respondent's applications to quash the warrants by EPA. Although those applications were triggered by EPA's actions, the agency's actions were not in any sense intended to embroil respondent in litigation. Rather EPA was simply performing its statutory duty to enforce the Clean Air Act through inspections. In seeking to avail itself of the assistance of contractor-representatives EPA merely applied a uniform interpretation of Section 114(a)(2) applicable to others similarly situated to respondent. /11/ Thus, in the circumstances of this case the inequity that is produced by application of collateral estoppel is a special circumstances that warrants an exception to the normal rule of preclusion. /12/ Nor does Judge Jones' alternative suggestion (App. A, infra, 37a) that the inequity produced by application of collateral estoppel is illusory here because a majority of the Court reached the merits, support the application of collateral estoppel. First, because a majority of the court of appeals relied upon collateral estoppel, there was no reason for the court to reach the merits. See Montana v. United States, supra, 440 U.S. at 152-153; cf. Brown v. United States, 422 U.S. 916, 920 (1975). Conversely, because a separate majority reached the merits, invocation of collateral estoppel could have none of the salutary effects assigned for the doctrine generally. Neither the court, nor any of the parties was spared any labor associated with a decision on the merits. In short, the peculiar dual holding of the court of appeals amply demonstrates that application of collateral estoppel in this setting is likely to absorb, rather than to conserve, judicial resources. The fact that the parties in this case and Stauffer I are identical cannot justify application of collateral estoppel for yet another reason. At the time when the Solicitor General decides whether to authorize an appeal, or whether to seek review in this Court of an adverse judgment, it is typically impossible to determine whether future litigation will arise in a case involving the same party or a different party. The Solicitor General's decision -- particularly respecting whether to seek certiorari must turn instead upon the general importance of the issue, the existence of a conflict and the other criteria traditionally applied by this Court. If the United States is to be bound in future litigation with the adverse party, however, the mere possibility of future litigation with the same party powerfully militates in favor of further review in many cases that otherwise do not warrant that extraordinary step. Thus, even in its narrowest form, the decision of the court of appeals threatens a substantial distortion of existing litigation standards that would adversely affect the management of scarce judicial resources. b. Contrary to Judge Weick's view, this case is not controlled by the holding of Montana v. United States itself. As explained in our reply brief in Mendoza (at 9) the policy and practical considerations we outlined there and here had little application in Montana; for the issue presented there could arise in only two forums -- the state courts in Montana and the United States District Court for Montana. /13/ The issue, too, was not one involving a body of law applicable to a class of similarly situated persons, but one affecting the proprietary interest of the United States. The United States did not argue in Montana, as it does here, that the application of the preclusion doctrines was inappropriate in light of the government's special attributes and responsibilities, and the Court's opinion does not reflect any view respecting our present contentions. See also pages 26-27, infra. c. Several other special considerations militate against application of collateral estoppel in the setting of this case. First is the existence of the conflicting decision of the Ninth Circuit in Bunker Hill. See Parklane Hosiery Co. v. Shore, supra, 439 U.S. at 330 & n.14. Of course, the decision of the Ninth Circuit was rendered after the district court's decision in this case, but that is equally true of the Tenth Circuit's decision in Stauffer I. Indeed, it is unclear what significance was attributed to the appellate affirmance in Stauffer I. Insofar as the court of appeals' collateral estoppel ruling rests upon the Tenth Circuit's decision in Stauffer I, an anomaly is created. The judgment of the district court was reversed even though the court committed no error on any matter presented to it. See 82-849 Reply Br. at 7. And insofar as the collateral estoppel ruling rests upon the decision of the Wyoming district court, undue weight was afforded to the decision of a district court in another circuit. See Restatement (Second) of Judgments, supra, at Section 29, comment i. These anomalies are the inevitable result of resort to the rigid preclusion doctrine to govern a recurring question of public law affecting a class of similarly situated persons. By contrast, reliance upon the more flexible doctrine of stare decisis and due regard for the persuasive force of the decision of coordinate and inferior courts entails no such difficulties. Reliance upon collateral estoppel with respect to legal issues is particularly inappropriate in the context of the difficult questions of statutory interpretation that arise under our complex environmental laws. See, e.g., E.I. DuPont DeNemours & Co. v. Train, 430 U.S. 112, 135 & n.26 (1977); Western Oil & Gas Ass'n v. EPA, supra, 633 F.2d at 808. And this Court has frequently entered into such controversies only after a substantial accumulation of appellate jurisprudence. See, e.g., Union Electric Co. v. EPA, 427 U.S. 246, 254-255 (1976); Train v. NRDC, 421 U.S. 60, 72-75 (1975). /14/ This practice may be based in part upon the provisions of the major environmental statutes assigning jurisdiction to address certain claims upon a geographical basis, while others are treated as matters of national concern. See, e.g., 33 U.S.C. 1369(b) (Clean Water Act)642 U.S.C. (Supp. IV) 7607(b)(1) (Clean Air Act). But even where such explicit statutory provision is not made, questions of law under the environmental control statutes are capable of arising in every jurisdiction. Because of the substantial local interest in the manner in which these important issues are resolved, it appears particularly inappropriate to import the rigid issue preclusion doctrine into this area. Moreover, because of the prominent role in environmental litigation of large industrial corporations, national trade associations and national environmental advocacy groups, many of which do business or conduct litigation in manifold jurisdictions, any rule that assigns controlling weight to the identity of parties in determining the applicability of collateral estoppel in this setting provides an extra incentive for forum shopping, and also fosters indefensible inequities in the administration of the law to similarly situated parties. /15/ d. The decision of the court of appeals also fails to accord proper effect to the "unmixed questions of law" exception to the preclusion doctrine announced in United States v. Moser, supra, 266 U.S. at 242. See also Montana v. United States, supra, 440 U.S. at 162-163; cf. Commissioner v. Sunnen, 333 U.S. 591, 601 (1948) (separable facts rule). The court of appeals thought to avoid the application of this doctrine by characterizing the issue presented as one turning upon a "fact, question or right distinctly adjudged" in Stauffer I, rather than a "rule of law" enunciated in an action "upon a different demand" (App. A, infra, 12a-13a; see United States v. Moser, supra, 266 U.S. at 242). But whatever gloss Montana v. United States, supra, may have placed upon the principles announced in Moser or Sunnen /16/ we submit that no "fact, question, or right" decided in Stauffer I is controlling here and that this case does arise "upon a different demand" because the inspection in this case pertained to a different plant located in a different judicial circuit. /17/ Because of the substantial public interest in allowing independent examination of recurring questions of public law by the various courts of appeals, this factor, unlike the factual differences deemed immaterial in Montana, 440 U.S. at 158-163, serves to render the rigid issue preclusion doctrine inapplicable. 3. a. Relatively little need be said respecting the court of appeals' decision on the merits of the question of statutory interpretation. As the court of appeals acknowledged, its decision conflicts directly with the Ninth Circuit's decision in Bunker Hill Co. v. EPA, 658 F.2d 1280 (1981). The latter decision in turn expressly disapproves the Tenth Circuit's decision in Stauffer I. The court of appeals' decision eliminates an important tool employed by the EPA to assure enforcement of the Clean Air Act through its overview inspection program. If private contractors may not be designated to assist in conducting Section 114(a)(2) inspections, the agency's ability to operate an effective overview inspection program may be compromised. For instance, 22 technically trained employees employed in EPA's Region IV (the administrative unit encompassing Tennessee) are responsible for monitoring compliance by approximately 4600 major stationary sources of air pollution located in an eight-state area. See Affidavit of James T. Wilburn (App. E, infra, 59a). /18/ EPA has relied upon contractor-representatives both because its own enforcement resources are limited and because private contractors often possess considerable expertise and experience with certain industrial processes of inspection interest (id. at 60a). If EPA may not use the services of contractor-representatives, it will be obliged to hire employees who possess the requisite technical expertise. Because such expertise may be industry-specific, the hiring of numerous experts, each possessing a narrow technical specialty may be required, even though the services of such experts are not necessarily needed on a full-time basis. Accordingly, the decision of the court of appeals is likely to restrict EPA's ability to fulfill its statutory duties in the most efficient manner. b. On the merits, our contentions are largely summarized in the decision of the district court below, and in the decision of the Ninth Circuit in Bunker Hill, upon which we rely. We note here only that the court of appeals' contrary reasoning is severely flawed. First, there is no sufficient reason for disregarding what the court of appeals acknowledged (App. A, infra, 22a) to be the plain meaning of the term authorized "representative." That term, on its face, embraces all duly designated agents of the Administrator. Second, the court of appeals improperly attributed significance to the absence of comment in the legislative history of Section 114(a)(2) upon the fact that the Senate version enacted into law was broader than its House counterpart. See Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980). At the same time, the court of appeals gave undue weight to language in the 1970 Conference report. Because the Report simply does not focus on the identity of persons authorized to make inspections, the casual descriptions of the Senate and House bills employed in the Conference Report reflect no view as to the question at issue. See Bunker Hill, supra, F.2d at 1283-1284. The court of appeals' effort to "harmonize" Section 114(a), (c) and (d) of the Act (App. A, infra, 20a-22a) falls of its own weight. Even if policy considerations suggest that intergovernmental notices required by Section 114(d) should be given by EPA personnel rather than contractor-representatives, it does not follow that Congress employed the term representative in that setting to exclude contractors. Rather, absent any actual indication of congressional intent, it is more reasonable to assume that Congress was content to rely upon EPA's prudence on this point. In any event, because the notices required by Section 114(d) do not require the technical expertise required for actual inspections, there is no reason to believe that Congress even considered the restriction interpolated by the Court. /19/ Finally, contrary to the court of appeals' conclusion, a comparison of the motor vehicle engine inspection provisions of the Act to Section 114(a)(2) suggests that the provisions are different in scope. And contrary to the court's suggestion there is nothing inherently irrational about such a distinction, or about a distinction between the inspection provisions of the Clean Water Act and Section 114(a)(2). 4. Although the first question we present is closely related to that under review in United States v. Mendoza, No. 82-849, it appears inappropriate simply to hold this case for disposition in light of Mendoza. First, this case will not necessarily be controlled by a decision in Mendoza. Unlike this case; collateral estoppel was there applied against the United States even though the opposing party had not participated in the prior case. On the other hand, the Sixth Circuit, unlike the Ninth Circuit in Mendoza (see 82-849 Pet. App. 17a n.14) went so far as to hold that the United States was required to seek certiorari unless it planned to acquiesce in the adverse decision of a court of appeals. Finally, the underlying issue in Mendoza is one of constitutional law; preclusion in that setting is particularly troublesome because the adverse decision is not subject to legislative correction. Because this case presents an important and recurring variation upon the question to be addressed in Mendoza, plenary consideration of this case in tandem with Mendoza appears appropriate. In any event, because of the dual holding of the court of appeals, disposition in light of Mendoza is not possible here. Accordingly, we suggest this case merits plenary consideration. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General MARY L. WALKER Acting Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General DIRK D. SNEL JUDSON W. STARR KATHLEEN P. DEWEY Attorneys Of Counsel: ROBERT M. PERRY General Counsel CHRISTOPHER HERMAN Attorney Environmental Protection Agency FEBRUARY 1983 /1/ The Clean Air Act, 42 U.S.C. (Supp. IV) 7401 et seq., establishes a dual state-federal system of air pollution enforcement. EPA establishes national ambient air quality standards, 42 U.S.C. (Supp. IV) 7409, while the states are primarily responsible for enforcing these standards, subject to EPA's supervision and approval, 42 U.S.C. (Supp. IV) 7407, 7410 and 7412. As part of that oversight EPA employs its Section 114(a)(2) inspection authority to conduct an "overview inspection program" under which it inspects approximately 10% of the major stationary sources of air pollution within each state annually. The sources so inspected already have been inspected by state authorities, which submit reports to the EPA. The results of each overview inspection are compared with the previously-reported results of the state inspection of the same facility. The purpose of the overview inspections is to evaluate each state's performance in enforcing the Clean Air Act. /2/ Although the statutory question had, by the date of the hearing on its motion to quash, been decided in its favor in separate litigation involving a different plant, see In re Stauffer Chemical Co., 14 Env't Rep. Cases 1737 (D. Wyo. 1980), respondent did not argue in district court that the Wyoming district court's decision was to be given preclusive effect. A second decision, contrary to the Wyoming district court's, had been rendered in a case to which respondent was not a party prior to submission of this case to the district court. See Aluminum Co. of America v. EPA, No. M-30-13 (M.D.N.D. Aug. 5, 1980). A third decision, likewise supporting EPA's position, was rendered in Bunker Hill Co. v. EPA, Civ. No. 80-2087 (D. Idaho Oct. 15, 1980), after submission but prior to entry of the district court's decision in this case. /3/ In the district court respondent also argued that EPA may not secure administrative warrants on an ex parte basis. The district court rejected this argument (App. C, infra, 55a-56a), and although respondent preserved the argument on appeal (see App. A, infra, 3a), the court of appeals did not reach that issue. No issue respecting the procedure for issuance of a warrant is presented here. /4/ At the time in question EPA had yet to be created, and the Secretary of Health, Education, and Welfare was charged with administration of the Clean Air Act. /5/ Because it deemed the pertinent materials equivocal, the district court declined to adopt EPA's contention that Congress had ratified a consistent administrative practice respecting the application of Section 114(a)(2) (App. C, infra, 55a). /6/ The Senate Report on the 1972 Amendments to the Clean Water Act, S. Rep. No. 92-414, 92d Cong., 1st Sess. 63 (1971), states: It should * * * be noted that the authority to enter, as under the Clean Air Act, is reserved to the Administrator and his authorized representatives which such representatives must be full time employees of (EPA). The authority to enter is not extended to contractors with the EPA in pursuit of research and development. /7/ Judge Weick's reasoning that, notwithstanding the application of collateral estoppel, the merits should be addressed was his alone. /8/ Judge Siler similarly acknowledged that the district court's contrary decision was not clearly incorrect (App. A, infra, 41a). /9/ The court of appeals also suggested that the legislative history of a 1980 amendment to analogous inspection provisions of the Solid Waste Act adding "representative(s)" duly designated by the EPA Administrator to the list of persons authorized to make inspections makes clear the intent to extend authority to persons other tha EPA employees, and that the absence of comparable language in the legislative history of the 1970 Clean Air Act Amendments accordingly reflects a contrary intention (App. A, infra, 29a-30a). In addition, the court of appeals rejected EPA's contention (previously accepted by the Ninth Circuit, Bunker Hill, supra, 658 F.2d at 1284 n.2) that Congress had ratified the agency's interpretation of Section 114(a)(2), by its failure to correct it in amending the Act in 1977. The court found the evidence respecting ratification inconclusive (App. A, infra, 31a). The court also found insufficient EPA's contention that Congress had ratified the agency's position by approving appropriations for contractor assistance (id. at 32a-33a). /10/ Although the United States was a party to Montana, no contention was made in that case that the applicability of collateral estoppel was in any respect affected by the government's special attributes and responsibilities. Moreover, as explained below (pages 23-24), these considerations had little if any application in Montana itself. /11/ We note that respondent operates plants in thirty states, spanning eleven of the twelve judicial circuits. See (1982) 2 Moody's Industrial Manual 5985. Eighteen of these plants are located within the Ninth Circuit. Query whether under the Sixth Circuit's decision EPA is obligated to follow Stauffer I with respect to these plants, notwithstanding the Ninth Circuit's contrary decision in Bunker Hill. If so, the resulting discrepancy in the administration of the laws is substantial indeed. /12/ The American Law Institute has rejected the analysis underlying Judge Jones' suggestion that failure to apply preclusion in a setting such as this works the greater inequity (Restatement (Second) of Judgments, supra, Section 28, comment c): In deciding whether to apply issue preclusion * * * the choice is between two forms of disparity in resolution of legal controversy. * * * (T)he choice must be made in terms of the importance of stability in legal relationships between the immediate parties, the actual likelihood that there are similarly situated persons who are subject to application of the rule in question, and the consequences to the latter if they are subject to different legal treatment. In this connection it can be particularly significant that one of the parties is a government agency responsible for continuing administration of a body of law that affects members of the public generally, as in the case of tax law. Refusal of preclusion is ordinarily justified if the effect of applying preclusion is to give one person a favored position in current administration of a law. /13/ This consideration is especially significant because in Montana, unlike this case, the government had engaged in conduct that may implicate the core concerns underlying the preclusion doctrines. It had litigated the issue to a conclusion, in the Supreme Court of Montana, noted an appeal to this Court, then dismissed the appeal and pursued its parallel action in the federal court. The federal action, moreover, had been filed just after the action in state court was filed, and had been stayed upon the government's stipulation pending resolution of the state court litigation. 440 U.S. at 151. /14/ The Court has also denied certiorari notwithstanding an acknowledged conflict among the circuits in appropriate circumstances. See, e.g., United States Steel Corp. v. EPA, 605 F.2d 283 (7th Cir. 1979), cert. denied, 444 U.S. 1035 (1980). /15/ By way of illustration, we note that United States Steel Corporation challenged the EPA's failure to comply with the notice and comment requirements of 5 U.S.C. 553 in promulgating final rules designating various areas as exceeding national ambient air quality standards for total suspended particulates in the Fifth Circuit, United States Steel Corp. v. EPA, 595 F.2d 207, modified, 598 F.2d 915 (1979), the Seventh Circuit, United States Steel Corp. v. EPA, 605 F.2d 283 (1979), cert. denied, 444 U.S. 1035 (1980), and in the Eighth Circuit, United States Steel Corp. v. EPA, 649 F.2d 572 (1981). Other companies challenged the EPA's procedure in the Third Circuit, Sharon Steel Corp. v. EPA, 597 F.2d 377 (1979), the Sixth Circuit, Republic Steel Corp. v. Costle, 621 F.2d 797 (1980), the Ninth Circuit, Western Oil & Gas Ass'n v. EPA, supra, and the District of Columbia Circuit, New Jersey Department of Environmental Protection v. EPA, 626 F.2d 1038. It would have been anomalous in the extreme for the result in any of those cases to have turned upon the presence or absence of a particular party -- United States Steel. /16/ Compare American Medical International, Inc. v. Secretary of Health, Education, and Welfare, supra, 677 F.2d at 119-121; Hicks v. Quaker Oats Co., 662 F.2d 1158, 1166-1167 (5th Cir. 1981); Union Carbide Corp. v. Commissioner, 671 F.2d 67, 68 (2d Cir. 1982); Starker v. United States, 602 F.2d 1341, 1345-1347 (9th Cir. 1979) with Western Oil & Gas Ass'n v. EPA, supra, 633 F.2d at 808-809. Unlike the courts of appeals, this Court has never stated that Montana alters the rule of Commissioner v. Sunnen; in any event Montana itself treats Moser as good law. 440 U.S. at 162. /17/ The Restatement (Second) of Judgments, supra, Section 28, comment c, suggests that application of the distinction drawn in Moser (266 U.S. at 242) depends upon whether preclusion would give one person "a favored position in the administration of current law." See page 22 note 12, supra. /18/ This affidavit was submitted to the court of appeals in connection with the government's opposition to Stauffer's motion for a stay pending appeal, and is part of the record. /19/ We note as well that, contrary to the court of appeals' suggestion (App. A, infra, 22a) an interpretation of the term representative employed in Section 114(c) that includes persons other than agency employees does not suggest that inspections under Section 114(a) may only be carried out by non-employees. Appendix Omitted