No. 99-345
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
COUNTY OF COOK, ILLINOIS, EDWARD J. ROSEWELL, COUNTY TREASURER AND COUNTY
COLLECTOR OF THE COUNTY OF COOK, ILLINOIS, DAVID D. ORR, CLERK OF THE COUNTY
OF COOK, ILLINOIS, THOMAS C. HYNES, ASSESSOR OF COOK COUNTY, AND THE PEOPLE
OF THE STATE OF ILLINOIS, ON RELATION OF
EDWARD J. ROSEWELL AND THE COUNTY OF COOK
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 99-345
UNITED STATES OF AMERICA, PETITIONER
v.
COUNTY OF COOK, ILLINOIS, EDWARD J. ROSEWELL, COUNTY TREASURER AND COUNTY
COLLECTOR OF THE COUNTY OF COOK, ILLINOIS, DAVID D. ORR, CLERK OF THE COUNTY
OF COOK, ILLINOIS, THOMAS C. HYNES, ASSESSOR OF COOK COUNTY, AND THE PEOPLE
OF THE STATE OF ILLINOIS, ON RELATION OF
EDWARD J. ROSEWELL AND THE COUNTY OF COOK
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
1. a. In United States v. United States Fidelity & Guaranty Co., 309
U.S. 506, 514-515 (1940), this Court unanimously held that, when there is
"a collision between the desirable principle that rights may be adequately
vindicated through a single trial of an issue and the sovereign right of
immunity from suit * * * the doctrine of immunity should prevail."
For the reasons discussed in detail in the petition (Pet. 15-20), the contention
of respondents (Br. in Opp. 13-26) that USF&G applies only when the
first proceeding occurred in a court that lacked subject matter jurisdiction
cannot be reconciled with the decisions of this Court or the courts of appeals.
As other courts have consistently held, the decision in USF&G establishes
that the doctrine of res judicata "is inapplicable where the issue
is the waiver of [sovereign] immunity." Corbett v. MacDonald Moving
Services, Inc., 124 F.3d 82, 88 n.3 (2d Cir. 1997).1 As these courts have
uniformly concluded, the holding of USF&G is based on the fact that
"[o]fficers of the United States possess no power through their actions
to waive an immunity of the United States." United States v. Murdock
Machine & Engineering Co., 81 F.3d 922, 931 (10th Cir. 1996), quoting
United States v. New York Rayon Importing Co., 329 U.S. 654, 660 (1947).
Accord, In re Bulldog Trucking, Inc., 147 F.3d 347, 353 (4th Cir. 1998);
CFTC v. Frankwell Bullion Ltd., 99 F.3d 299, 306 n.5 (9th Cir. 1996). See
also United States v. Eastport S.S. Corp., 255 F.2d 795, 803 (2d Cir. 1958);
Moody v. Wickard, 136 F.2d 801, 803 (D.C. Cir.), cert. denied, 320 U.S.
775 (1943).
Respondents fail to cite, and thereby simply ignore, this substantial body
of precedent in stating that "no court * * * has ever interpreted USF&G
as the United States argues * * * in this case" (Br. in Opp. 25). Contrary
to respondents' assertion, USF&G has routinely been cited by courts
and commentators for the established proposition that the interests underlying
the doctrine of sovereign immunity "are sufficiently important to prevail
over the application of the doctrine of res judicata". Republic Supply
Co. v. Shoaf, 815 F.2d 1046, 1054 n.9 (5th Cir. 1987); accord, Moore's Federal
Practice § 131.21[3][b], at 131-46 (3d ed. 1996). As Judge Rovner explained
in her dissent in this case, the decision in USF&G did not rely on subject
matter jurisdiction but instead "rested solely on the ground of sovereign
immunity and the doctrine that sovereign immunity cannot be waived."
Pet. App. 24a n.2, quoting 18 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure § 4429, at 289 (1988).
b. Respondents err in asserting (Br. in Opp. 17) that this Court's decision
in Jackson v. Irving Trust Co., 311 U.S. 494 (1941), indicates that USF&G
is based on jurisdictional, rather than sovereign immunity, grounds. In
Jackson, the Court held that a "jurisdictional" issue that turned
on factual determinations could not be raised by the United States when
that issue had previously been raised and litigated by the United States
in a prior proceeding between the same parties and "the issues thus
raised were the same." Id. at 503. As we note in the petition in this
case, the conclusion in USF&G that the doctrine of sovereign immunity
"should prevail" in "a collision" with the doctrine
of res judicata (309 U.S. at 514-515) "does not mean that the government
may twice litigate the same defense to the same claim against the same parties."
Pet. 17. It is when, as here, the sovereign immunity defense was not raised
in the first case that it may be raised in a second action involving the
same parties. USF&G, 309 U.S. at 515.
Respondents miss the mark in accusing the United States of engaging in "deliberate
piecemeal litigation" in this case (Br. in Opp. 26).2 As we explain
in the petition (Pet. 7, 21), the current proceedings in this case result
from the fact that, in United States v. Hynes, 20 F.3d 1437 (1994), the
Seventh Circuit overruled the prior decision of that court in United States
v. County of Cook, 725 F.2d 1128 (1984). There is obviously nothing "deliberate"
about the failure of the United States to anticipate that the court of appeals
would decline to give conclusive effect to the prior judgment of that court
in County of Cook.
c. In its effort to make the decision in USF&G "vanish[] from the
law of judgments" (Pet. App. 19a), the court of appeals fundamentally
misinterpreted the Court's holding in that case and improperly usurped the
"prerogative" of this Court to determine the continuing validity
of its decisions. See Rodriguez de Quijas v. Shearson/American Express,
Inc., 490 U.S. 477, 484 (1989). Although this Court held in USF&G that
"the doctrine of [sovereign] immunity should prevail" in a conflict
with the "desirable principle" of res judicata (309 U.S. at 514-515),
the court of appeals reached precisely the opposite conclusion in the present
case. Because the decision of the court of appeals is flatly inconsistent
with USF&G, and with the numerous appellate cases applying that decision,
review by this Court is warranted.
2. Respondents acknowledge (Br. in Opp. 27-28) that there is a conflict
among the circuits on the second question presented in the petition in this
case. They thus agree that the courts of appeals have reached conflicting
conclusions on the recurring question whether a statutory waiver of sovereign
immunity from "taxes" also waives the government's immunity from
penalties and interest. Respondents assert, however, that it is unnecessary
to resolve that conflict in this case because res judicata will prevent
the Court from "reaching the merits" of that issue (Br. in Opp.
28).
We, of course, do not contend that the merits of this case should be reached
if the Court determines that the government's claim is barred by res judicata.
Instead, as we explain in the petition (Pet. 23), if the Court grants certiorari
and determines that res judicata does not bar the government's claim on
the merits in this case, the Court should then reach the second question
presented in order to resolve the acknowledged conflict among the circuits
on that issue. A remand of the pending question on the merits to the court
of appeals would simply enlarge the existing conflict on that issue by enmeshing
another circuit in the dispute.
* * * * *
For the reasons stated here and in the petition, the petition for a writ
of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
NOVEMBER 1999
1 The doctrine of res judicata applies "to jurisdictional determinations"
as well as to other matters for which sovereign immunity may establish a
defense. See, e.g., Insurance Corp. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 n.9 (1982); Corbett v. MacDonald Moving Services, Inc.,
124 F.3d at 88-89.
2 In the factual portion of their brief (Br. in Opp. 6-7), respondents inconsistently
(and erroneously) imply that the liability of the United States for the
penalties and interest involved here was presented and determined at an
earlier stage of this case. The court of appeals correctly observed, however,
that the liability of the United States for such charges "was not"
addressed in the earlier proceedings (Pet. App. 3a). The history of the
proceedings that led to the present action is fully set forth at pages 2-8
of the petition.