Case 4 64 choice of cost

Woodruff Professor of Law; Alonzo L. This Article is drawn in large part from John Witte, Jr. And I express my deep thanks to several fine scholars who helped me with various parts of this text, and the broader project from which it is drawn:

The private contractors refused to do so, and EPA later obtained an administrative warrant authorizing the private employees to conduct the inspection.

The Court of Appeals in the present case reversed the District Court, agreeing with respondent both on the merits of the statutory issue and, alternatively, on the collateral estoppel issue.

The doctrine of mutual defensive collateral estoppel is applicable against the Government to preclude relitigation of the same issue already litigated against the same party in another case involving virtually identical facts.

United States, U. The exception to the applicability of the principles of collateral estoppel for "unmixed questions of law" arising in "successive actions involving unrelated subject matter," Montana v. United States, supra, at U.

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Whatever the purpose or extent of the exception, Page U. That argument is persuasive only to prevent the application of collateral estoppel against the Government in the absence of mutuality.

Stauffer also argues that the Government should be estopped from relitigating the question of whether private contractors are "authorized representatives" under the statute because it has already litigated that question against Stauffer Page U.

The Court of Appeals agreed with Stauffer on the merits and also on the collateral estoppel issue. Without reaching the merits, we affirm the Court of Appeals' holding that the Government is estopped from relitigating the statutory issue against Stauffer. On March 27,officials from EPA and the State of Tennessee, accompanied by employees of a private firm under contract to EPA, attempted to inspect Stauffer's elemental phosphorus production plant in Mt.

Stauffer refused entry to the private contractors unless they would sign an agreement not to disclose trade secrets. When the private contractors refused to do so, the entire group left without making the inspection. EPA later obtained an administrative warrant authorizing the private employees to conduct the inspection, and Stauffer refused to honor the warrant.

On the following day, EPA began a civil contempt proceeding against Stauffer in Federal District Court in Tennessee, and Stauffer simultaneously moved to quash the warrant. As in the present case, Stauffer insisted that the private contractors sign a nondisclosure agreement, and when they declined to do so, Stauffer refused to allow them to enter the plant.

EPA obtained an administrative warrant authorizing the private contractors to conduct the inspection, and Stauffer refused to honor the warrant. Stauffer then instituted an action in United States District Court in Wyoming seeking to quash the warrant and to enjoin EPA from using private contractors in inspecting Stauffer's Wyoming plants.

The Sixth Circuit in the present case hereinafter Stauffer II reversed the District Court, adopting alternative grounds for its decision.

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Judge Weick, who delivered the opinion of the court, agreed with the Tenth Circuit that private contractors are not authorized to conduct inspections under the Clean Air Act.

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