source: Caselaw Access Project

author: Justice Souter Justice Thomas,

license: Public Domain

text:
    ENVIRONMENTAL DEFENSE et al. v. DUKE ENERGY CORP. et al.
    No. 05-848.
    Argued November 1, 2006
    Decided April 2, 2007

      Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Auto, JJ., joined, and in which Thomas, J., joined as to all but Part III-A. Thomas, J., filed an opinion concurring in part, post, p. 582.

      Sean H. Donahue argued the cause for petitioners. With him on the briefs were David T. Goldberg, Jeffrey M. Gleason, J. Blanding Holman IV, and Caleb Jaffe.

      Deputy Solicitor General Hungar argued the cause for the United States as amicus curiae urging reversal. With him on the briefs were Solicitor General Clement, Assistant Attorney General Wooldridge, James A. Feldman, Katherine J. Barton, Ann R. Klee, Chet M. Thompson, Granta Y. Nakayama, Thomas W. Swegle, Carol S. Holmes, David W. Schnare, and Alan Dion.

      Carter G. Phillips argued the cause for respondent. With him on the brief were Mark D. Hopson, Kathryn B. Thomson, Stephen M. Nickelsburg, Henry V. Nickel, F. William Brownell, Makram Jaber, Marc E. Manly, Catherine S. Stempien, Garry S. Rice, T. Thomas Cottingham III, and Nash E. Long III

      Briefs of amici curiae urging reversal were filed for the State of New Jersey et al. by Zulima V. Farber, former Attorney General of New Jersey, Patrick DeAlmeida, Assistant Attorney General, and Kevin P. Auerbacher and Jung W. Kim, Deputy Attorneys General, and by the Attorneys General and other officials for their respective jurisdictions as follows: Terry Goddard, Attorney General of Arizona, Joseph P. Mikitish, Assistant Attorney General, Robert J. Spagnoletti, former Attorney General of the District of Columbia, Edward E. Schwab, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, Gregory D. Stumbo, Attorney General of Kentucky, Douglas Scott Porter, Assistant Attorney General, Michael A Cox, Attorney General of Michigan, Thomas L. Casey, Solicitor General, and Alan F. Hoffman and Neil D. Gordon, Assistant Attorneys General, Rob McKenna, Attorney General of Washington, and Leslie R. Seffern, Assistant Attorney General; for the State of New York et al. by Eliot Spitzer, former Attorney General of New York, Caitlin J. Halligan, Solicitor General, Andrew Bing and Daniel J. Chepaitis, Assistant Solicitors General, Peter H. Lehner, Robert Rosenthal, J. Jared Snyder, and Michael J. Myers, Assistant Attorneys General, by Susan Shinkman and Robert A Reiley, and by the Attorneys General and former Attorneys General for their respective States as follows: Bill Lockyer of California, Richard Blumenthal of Connecticut, Carl C. Dan-berg of Delaware, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Kelly Ayotte of New Hampshire, Patricia A Madrid of New Mexico, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, and William H. Sorrell of Vermont; for the American Lung Association et al. by Hope M. Babcock; for the Chesapeake Bay Foundation et al. by Michael D. Goodstein and Julie Kaplan; for Law Professors by Jared A Goldstein; for the National Parks Conservation Association et al. by George E. Hays and Michael A. Costa; for STAPPA et al. by Richard E. Ayres; for Current and Former Members of Congress by Stephanie Tai; and for Former Administrator of the United States Environmental Protection Agency Carol M. Browner et al. by Holly D. Gordon and Deborah A Sivas.

      Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, Kevin C. Newsom, Solicitor General, and Robert D. Tambling, Assistant Attorney General, and by the Attorneys General and former Attorneys General for their respective States as follows: David W. Marquez of Alaska, John W. Suthers of Colorado, Steve Carter of Indiana, Phill Kline of Kansas, Jon Bruning of Nebraska, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert F. McDonnell of Virginia, and Patrick J. Crank of Wyoming; for APA Watch by Lawrence J. Joseph; for the American Public Power Association et al. by Janet Pitterle Holt, Rae E. Cronmiller, and Richard H. Robinson; for the Electric Utility Industry by Steven G. McKinney, Michael D. Freeman, and P. Stephen Gidiere III; for Law Professors by David B. Rivkin, Jr., and Lee A Casey; for the Manufacturers Association Work Group by Charles H. Knauss, Robert V. Zener, Julie C. Becker, Richard S. Wasserstrom, Kevin B. Belford, M. Elizabeth Cox, Jan S. Amundson, Quentin Riegel, Robin S. Conrad, and Amar D. Sarwal; for the National Environmental Development Association’s Clean Air Project by Leslie Sue Ritts and Lorane F. Hebert; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar.

      Briefs of amici curiae were filed for the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, et al. by Scott H. Segal and Jason B. Hutt; for Walter C. Barber by Robert L. Brubaker; and for U. S. Representative Joe L. Barton by George C. Landrith and Christopher C. Horner.

   Justice Souter

delivered the opinion of the Court.

In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term “modification,” 42 U. S. C. § 7411(a)(4), while the PSD provisions use that word “as defined in” NSPS, § 7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on “modification” to their NSPS counterparts, and that EPA’s 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals’s reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act’s restrictions on judicial review of EPA regulations for validity.

I

The Clean Air Amendments of 1970, 84 Stat. 1676, broadened federal authority to combat air pollution, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845-846 (1984), and directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce, 42 U. S. C. §§ 7409, 7410. The amendments dealing with NSPS authorized EPA to require operators of stationary sources of air pollutants to use the best technology for limiting pollution, Chevron, supra, at 846; see also 1 F. Grad, Environmental Law §2.03 [14], p. 2-356 (2006), both in newly constructed sources and those undergoing “modification,” 42 U. S. C. § 7411(a)(2). Section 111(a) of the 1970 amendments defined this term within the NSPS scheme as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted,” 42 U. S. C. § 7411(a)(4).

EPA’s 1975 regulations implementing NSPS provided generally that “any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of section 111.” 40 CFR §60.14(a) (1976). Especially significant here is the identification of an NSPS “modification” as a change that “increase^] . . . the emission rate,” which “shall be expressed as kg/hr of any pollutant discharged into the atmosphere. ” § 60.14(b).

NSPS, however, did too little to “achiev[e] the ambitious goals of the 1970 Amendments,” R. Belden, Clean Air Act 7 (2001) (hereinafter Belden), and the Clean Air Act Amendments of 1977, 91 Stat. 685, included the PSD provisions, which aimed at giving added protection to air quality in certain parts of the country “notwithstanding attainment and maintenance of” the NAAQS. 42 U. S. C. § 7470(1). The 1977 amendments required a PSD permit before a “major emitting facility” could be “constructed” in an area covered by the scheme. § 7475(a). As originally enacted, PSD applied only to newly constructed sources, but soon a technical amendment added the following subparagraph: “The term ‘construction’ when used in connection with any source or facility, includes the modification (as defined in section 111(a)) of any source or facility.” §14(a)(54), 91 Stat. 1402, 42 U. S. C. § 7479(2)(C); see also New York v. EPA, 413 F. 3d 3, 13 (CADC 2005) (per curiam). In other words, the “construction” requiring a PSD permit under the statute was made to include (though it was not limited to) a “modification” as defined in the statutory NSPS provisions.

In 1980, EPA issued PSD regulations, which “limited the application of [PSD] review” of modified sources to instances of “‘major’ modification,” Belden 46, defined as “any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act.” 40 CFR § 51.166(b)(2)(i) (1987). Further regulations in turn addressed various elements of this definition, three of which are to the point here. First, the regulations specified that an operational change consisting merely of “[a]n increase in the hours of operation or in the production rate” would not generally constitute a “physical change in or change in the method of operation.” § 51.166(b)(2)(iii)(/). For purposes of a PSD permit, that is, such an operational change would not amount to a “modification” as the Act defines it. Second, the PSD regulations defined a “net emissions increase” as “[a]ny increase in actual emissions from a particular physical change or change in the method of operation,” net of other contemporaneous “increases and decreases in actual emissions at the source.” §51.166(b)(3)(i). “Actual emissions” were defined to “equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation.” §51.166(b)(21)(ii). “[AJetual emissions” were to be “calculated using the unit’s actual operating hours [and] production rates.” Ibid. Third, the term “significant” was defined as “a rate of emissions that would equal or exceed” one or another enumerated threshold, each expressed in “tons per year.” § 51.166(b)(23)(i).

It would be bold to try to synthesize these statutory and regulatory provisions in a concise paragraph, but three points are relatively clear about the regime that covers this case:

(a) The Act defines modification of a stationary source of a pollutant as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one.
(b) EPA’s NSPS regulations require a source to use the best available pollution-limiting technology only when a modification would increase the rate of discharge of pollutants measured in kilograms per hour.
(c) EPA’s 1980 PSD regulations require a permit for a modification (with the same statutory definition) only when it is a major one and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years.

The Court of Appeals held that Congress’s provision defining a PSD modification by reference to an NSPS modification caught not only the statutory NSPS definition, but also whatever regulatory gloss EPA puts on that definition at any given time (for the purposes of the best technology requirement). When, therefore, EPA’s PSD regulations specify the “change” that amounts to a “major modification” requiring a PSD permit, they must measure an increase in “the amount of any air pollutant emitted,” 42 U. S. C. § 7411(a)(4), in terms of the hourly rate of discharge, just the way NSPS regulations do. Petitioners and the United States say, on the contrary, that when EPA addresses the object of the PSD scheme it is free to put a different regulatory interpretation on the common statutory core of “modification,” by measuring increased emission not in terms of hourly rate but by the actual, annual discharge of a pollutant that will follow the modification, regardless of rate per hour. This disagreement is the nub of the case.

II

Respondent Duke Energy Corporation runs 30 coal-fired electric generating units at eight plants in North and South Carolina. United States v. Duke Energy Corp., 411 F. 3d 539, 544 (CA4 2005). The units were placed in service between 1940 and 1975, and each includes a boiler containing thousands of steel tubes arranged in sets. Ibid. Between 1988 and 2000, Duke replaced or redesigned 29 tube assemblies in order to extend the life of the units and allow them to run longer each day. Ibid.

The United States filed this action in 2000, claiming, among other things, that Duke violated the PSD provisions by doing this work without permits. Environmental Defense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund intervened as plaintiffs and filed a complaint charging similar violations.

Duke moved for summary judgment, one of its positions being that none of the projects was a “major modification” requiring a PSD permit because none increased hourly rates of emissions. The District Court agreed with Duke’s reading of the 1980 PSD regulations. It reasoned that their express exclusion of “ ‘[a]n increase in the hours of operation’ ” from the definition of a “ ‘physical change or change in the method of operation’” implied that “post-project emissions levels must be calculated assuming” preproject hours of operation. 278 F. Supp. 2d 619, 640-641 (MDNC 2003). Consequently, the District Court said, a PSD “major modification” can occur “only if the project increases the hourly rate of emissions.” Id., at 641. The District Court found further support for its construction of the 1980 PSD regulations in one letter and one memorandum written in 1981 by EPA’s Director of the Division of Stationary Source Enforcement, Edward E. Reich. Id., at 641-642.

The United States and intervenor-plaintiffs (collectively, plaintiffs) subsequently stipulated “that they do not contend that the projects at issue in this case caused an increase in the maximum hourly rate of emissions at any of Duke Energy’s units.” App. 504. Rather, their claim “is based solely on their contention that the projects would have been projected to result in an increased utilization of the units at issue.” Ibid. Duke, for its part, stipulated to plaintiffs’ right to appeal the District Court’s determination that projects resulting in greater operating hours are not “major modifications” triggering the PSD permit requirement, absent an increase in the hourly rate of emissions. The District Court then entered summary judgment for Duke on all PSD claims.

The Court of Appeals for the Fourth Circuit affirmed, “albeit for somewhat different reasons.” 411 F. 3d, at 542. “[T]he language and various interpretations of the PSD regulations . . . are largely irrelevant to the proper analysis of this case,” reasoned the Court of Appeals, “because Congress’ decision to create identical statutory definitions of the term ‘modification’” in the NSPS and PSD provisions of the Clean Air Act “has affirmatively mandated that this term be interpreted identically” in the regulations promulgated under those provisions. Id., at 547, n. 3, 550. The Court of Appeals relied principally on the authority of Rowan Cos. v. United States, 452 U. S. 247, 250 (1981), where we held against the Government’s differing interpretations of the word “wages” in different tax provisions. 411 F. 3d, at 550. As the Court of Appeals saw it, Rowan establishes an “effectively irrebuttable” presumption that PSD regulations must contain the same conditions for a “modification” as the NSPS regulations, including an increase in the hourly rate of emissions. 411 F. 3d, at 550.

As the Court of Appeals said, Duke had not initially relied on Rowan, see 411 F. 3d, at 547, n. 4, and when the Court sua sponte requested supplemental briefing on Rowan's relevance, plaintiffs injected a new issue into the case. They argued that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the validity of the regulation that could not be raised in an enforcement proceeding. See 42 U. S. C. § 7607(b)(2). Under § 307(b) of the Act, they said, judicial review for validity can be obtained only by a petition to the Court of Appeals for the District of Columbia Circuit, generally within 60 days of EPA’s rule-making. 42 U. S. C. § 7607(b).

The Court of Appeals rejected this argument. “Our choice of this interpretation of the PSD regulations ... is not an invalidation of those regulations,” it said, because “the PSD regulations can be interpreted” to require an increase in the hourly emissions rate as an element of a major “modification” triggering the permit requirement. 411 F. 3d, at 549, n. 7. To show that the 1980 PSD regulations are open to this construction, the Court of Appeals cited the conclusions of the District Court and the Reich opinions.

We granted the petition for certiorari brought by intervenor-plaintiffs, 547 U. S. 1127 (2006), and now vacate.

III

The Court of Appeals understood that it was simply construing EPA’s 1980 PSD regulations in a permissible way that left them in harmony with their NSPS counterpart and, hence, the Act’s single definition of “modification.” The plaintiffs say that the Court of Appeals was rewriting the PSD regulations in a way neither required by the Act nor consistent with their own text.

It is true that no precise line runs between a purposeful but permissible reading of the regulation adopted to bring it into harmony with the Court of Appeals’s view of the statute, and a determination that the regulation as written is invalid. But the latter occurred here, for the Court of Appeals’s efforts to trim the PSD regulations to match their different NSPS counterparts can only be seen as an implicit declaration that the PSD regulations were invalid as written.

A

In applying the 1980 PSD regulations to Duke’s conduct, the Court of Appeals thought that, by defining the term “modification” identically in its NSPS and PSD provisions, the Act required EPA to conform its PSD interpretation of that definition to any such interpretation it reasonably adhered to under NSPS. But principles of statutory construction are not so rigid. Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as “effectively irrebuttable.” 411 F. 3d, at 550. We also understand that “[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same section.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). Thus, the “natural presumption that identical words used in different parts of the same act are intended to have the same meaning ... is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Ibid. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.

The point is the same even when the terms share a common statutory definition, if it is general enough, as we recognized in Robinson v. Shell Oil Co., 519 U. S. 337 (1997). There the question was whether the term “employees” in § 704(a) of Title VII of the Civil Rights Act of 1964 covered former employees. Title VII expressly defined the term “employee,” 42 U. S. C. § 2000e(f), but the definition was “consistent with either current or past employment,” 519 U. S., at 342, and we held that “each section” of Title VII “must be analyzed to determine whether the context gives the term a further meaning that would- resolve the issue in dispute,” id., at 343-344.

If Robinson were inconsistent with Rowan (on which the Court of Appeals relied), it would be significant that Robinson is the later case, but we read the two as compatible. In Rowan, the question was whether the value of meals and lodging given to employees by an employer for its own convenience should be counted in computing “wages” under the Federal Insurance Contributions Act (FICA), 26 U. S. C. § 3101 et seq. (2000 ed. and Supp. IV), and the Federal Unemployment Tax Act (FUTA), 26 U. S. C. § 3301 et seq. (2000 ed. and Supp. IV). Treasury Regulations made this value “includable in ‘wages’ as defined in FICA and FUTA, even though excludable from ‘wages’ under the substantially identical” statutory definition of “wages” for income-tax withholding purposes. 452 U. S., at 252. Although we ultimately held that the income-tax treatment was the proper one across the board, we did not see it this way simply because a “substantially identical” definition of “wages” appeared in each of the different statutory provisions. Instead, we relied on a manifest “congressional concern for the interest of simplicity and ease of administration.” Id., at 255 (internal quotation marks omitted). The FICA and FUTA regulations fell for failing to “serve that interest,” id., at 257, not for defying definitional identity.

In fact, in a setting much like Rowan, we recently declined to require uniformity when resolving ambiguities in identical statutory terms. In United States v. Cleveland Indians Baseball Co., 532 U. S. 200 (2001), we rejected the notion that using the phrase “wages paid” in both “the discrete taxation and benefits eligibility contexts” can, standing alone, “compel symmetrical construction,” id., at 213; we gave “substantial judicial deference” to the “longstanding,” “reasonable,” and differing interpretations adopted by the Internal Revenue Service in its regulations and Revenue Rulings. Id., at 218-220. There is, then, no “effectively irrebuttable” presumption that the same defined term in different provisions of the same statute must “be interpreted identically.” 411 F. 3d, at 550. Context counts.

It is true that the Clean Air Act did not merely repeat the term “modification” or the same definition of that word in its NSPS and PSD sections; the PSD language referred back to the section defining “modification” for NSPS purposes. 42 U. S. C. §7479(2)(C).But that did not matter in Robinson, and we do not see the distinction as making any difference here. Nothing in the text or the legislative history of the technical amendments that added the cross-reference to NSPS suggests that Congress had details of regulatory implementation in mind when it imposed PSD requirements on modified sources; the cross-reference alone is certainly no unambiguous congressional code for eliminating the customary agency discretion to resolve questions about a statutory definition by looking to the surroundings of the defined term, where it occurs. See New York, 413 F. 3d, at 19 (“So far as appears,... [this] incorporation by reference [is] the equivalent of Congress’s having simply repeated in the [PSD] context the definitional language used before in the NSPS context”); cf. 91 Stat. 745 (expressly incorporating in an unrelated provision of the 1977 amendments “the interpretative regulation of the [EPA] Administrator . .. published in 41 Federal Register 55524-30” with specified exceptions); New York, supra, at 19 (“Congress’s failure to use such an express incorporation of prior regulations for ‘modification’ cuts against” any suggestion that “Congress intended to incorporate” into the Act the “preexisting regulatory definition” of “modification”). Absent any iron rule to ignore the reasons for regulating PSD and NSPS “modifications” differently, EPA’s construction need do no more than fall within the limits of what is reasonable, as set by the Act’s common definition.

B

The Court of Appeals’s reasoning that the PSD regulations must conform to their NSPS counterparts led the court to read those PSD regulations in a way that seems to us too far a stretch for the language used. The 1980 PSD regulations on “modification” simply cannot be taken to track the Agency’s regulatory definition under the NSPS.

True, the 1980 PSD regulations may be no seamless narrative, but they clearly do not define a “major modification” in terms of an increase in the “hourly emissions rate.” On its face, the definition in the PSD regulations specifies no rate at all, hourly or annual, merely requiring a physical or operational change “that would result in a significant net emissions increase of any” regulated pollutant. 40 CFR § 51.166(b)(2)(i). But even when a rate is mentioned, as in the regulatory definitions of the two terms, “significant” and “net emissions increase,” the rate is annual, not hourly. Each of the thresholds that quantify “significant” is described in “tons per year,” § 51.166(b)(23)(i), and a “net emissions increase” is an “increase in actual emissions” measured against an “average” prior emissions rate of so many “tons per year,” §§51.166(b)(3)(i) and (21)(ii). And what is further at odds with the idea that hourly rate is relevant is the mandate that “[ajctual emissions shall be calculated using the unit’s actual operating hours,” § 51.166(b)(21)(ii), since “actual emissions” must be measured in a manner that looks to the number of hours the unit is or probably will be actually running. What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime under which “hourly rate of emissions,” 411 F. 3d, at 550 (emphasis deleted), is dispositive.

The reasons invoked by the Court of Appeals for its different view are no match for these textual differences. The appellate court cited two authorities ostensibly demonstrating that the 1980 PSD regulations “can be interpreted consistently” with the hourly emissions test, the first being the analysis of the District Court in this case. Id., at 549, n. 7. The District Court thought that an increase in the hourly emissions rate was necessarily a prerequisite to a PSD “major modification” because a provision of the 1980 PSD regulations excluded an “ ‘increase in the hours of operation or in the production rate’ ” from the scope of “ ‘[a] physical change or change in the method of operation.’ ” 278 F. Supp. 2d, at 640-641 (quoting 40 CFR §§51.166(b)(2)(iii)(/) and (3)(i)(a) (1987)). The District Court read this exclusion to require, in effect, that a source’s hours of operation “be held constant” when preproject emissions are being compared with postproject emissions for the purpose of calculating the “net emissions increase.” 278 F. Supp. 2d, at 640.

We think this understanding of the 1980 PSD regulations makes the mistake of overlooking the difference between the two separate components of the regulatory definition of “major modification”: “[1] any physical change in or change in the method of operation of a major stationary source that [2] would result in a significant net emissions increase of any pollutant subject to regulation under the Act.” § 51.166(b)(2)(i); cf. New York, 413 F. 3d, at 11 (“[The statutory] definition requires both a change — whether physical or operational — and a resulting increase in emissions of a pollutant” (emphasis in original)); Wisconsin Elec. Power Co. v. Reilly, 893 F. 2d 901, 907 (CA7 1990) (same). The exclusion of “increase in . . . hours . . . or . . . production rate,” §51.166(b)(2)(iii)(/), speaks to the first of these components (“physical change ... or change in . . . method,” § 51.166(b)(2)(i)), but not to the second (“significant net emissions increase,” ibid.). As the preamble to the 1980 PSD regulations explains, forcing companies to obtain a PSD permit before they could simply adjust operating hours “would severely and unduly hamper the ability of any company to take advantage of favorable market conditions.” 45 Fed. Reg. 52704. In other words, a mere increase in the hours of operation, standing alone, is not a “physical change or change in the method of operation.” 40 CFR §51.166(b)(2)(iii).

But the District Court took this language a step further. It assumed that increases in operating hours (resulting in emissions increases at the old rate per hour) must be ignored even if caused or enabled by an independent “physical change ... or change in the method of operation.” §51.166(b)(2)(i). That reading, however, turns an exception to the first component of the definition into a mandate to ignore the very facts that would count under the second, which defines “net emissions increase” in terms of “actual emissions,” §51.166(b)(3)(i), during “the unit’s actual operating hours,” § 51.166(b)(21)(ii); see also 57 Fed. Reg. 32328 (1992) (“[A]n increase in emissions attributable to an increase in hours of operation or production rate which is the result of a construction-related activity is not excluded from [PSD] review .. . ”).

The Court of Appeals invoked one other source of support, the suggestion in the Reich opinions that a physical or operational change increasing a source’s hours of operation, without an increase in the hourly emissions rate, cannot be a PSD “major modification.” Duke continues to rely on those opinions here, asserting that “there are no contrary Agency pronouncements.” Brief for Respondent Duke 28. The Reich letters are not, however, heavy ammunition. Their persuasiveness is elusive, neither of them containing more than one brief and conelusory statement supporting Duke’s position. Nor, it seems, are they unembarrassed by any “contrary Agency pronouncements.” See, e.g., App. 258 (Memorandum of Don R. Clay, Acting Assistant EPA Administrator for Air and Radiation (Sept. 9,1988) (when “plans to increase production rate or hours of operation are inextricably intertwined with the physical changes planned,” they are “precisely the type of change in hours or rate o[f] operation that would disturb a prior assessment of a source’s environmental impact and should have to undergo PSD review scrutiny” (internal quotation marks and alterations omitted))); see also 57 Fed. Reg. 32328. In any event, it answers the citation of the Reich letters to realize that an isolated opinion of an agency official does not authorize a court to read a regulation inconsistently with its language.

In sum, the text of the 1980 PSD regulations on “modification” doomed the Court of Appeals’s attempt to equate those regulations with their NSPS counterpart. As a consequence, we have to see the Court of Appeals’s construction of the 1980 PSD regulations as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of § 307(b) of the Act, which limit challenges to the validity of a regulation during enforcement proceedings when such review “could have been obtained” in the Court of Appeals for the District of Columbia Circuit within 60 days of EPA rulemaking. See 42 U. S. C. § 7607(b); see also United States v. Cinergy Corp., 458 F. 3d 705, 707-708 (CA7 2006); Wisconsin Elec. Power Co., 893 F. 2d, at 914, n. 6. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. We have no occasion at this point to consider the significance of § 307(b) ourselves.

IV

Finally, Duke assumes for argument that the Act and the 1980 regulations may authorize EPA to construe a PSD “modification” as it has done, but it charges that the agency has taken inconsistent positions and is now “retroactively targeting twenty years of accepted practice.” Brief for Respondent Duke 37; see also Brief for State of Alabama et al. as Amici Curiae. This claim, too, has not been tackled by the District Court or the Court of Appeals; to the extent it is not procedurally foreclosed, Duke may press it on remand.

* * *

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

concurring in part.

I join all but Part III-A of the Court’s opinion. I write separately to note my disagreement with the dicta in that portion of the opinion, which states that the statutory cross-reference does not mandate a singular regulatory construction.

The Prevention of Significant Deterioration (PSD) statute explicitly links the definition of the term “modification” to that term’s definition in the New Source Performance Standard (NSPS) statute:

“The term ‘construction’ when used in connection with any source or facility, includes the modification (as defined in section 7411(a) of this title) of any source or facility.” 42 U. S. C. § 7479(2)(C).

Section 7411(a) contains the NSPS definition of “modification,” which the parties agree is the relevant statutory definition of the term for both PSD and NSPS. Because of the cross-reference, the definitions of “modification” in PSD and NSPS are one and the same. The term “modification” therefore has the same meaning despite contextual variations in the two admittedly different statutory schemes. Congress’ explicit linkage of PSD’s definition of “modification” to NSPS’ prevents the Environmental Protection Agency (EPA) from adopting differing regulatory definitions of “modification” for PSD and NSPS. Cf. IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005) (concluding that an “explicit reference” to a previous statutory definition prohibits interpreting the same word differently).

Section 7479(2)(C)’s cross-reference carries more meaning than the mere repetition of the same word in a different statutory context. When Congress repeats the same word in a different statutory context, it is possible that Congress might have intended the context to alter the meaning of the word. See Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). No such possibility exists with §7479(2)(C). By incorporating NSPS’ definition of “modification,” Congress demonstrated that it did not intend for PSD’s definition of “modification” to hinge on contextual factors unique to the PSD statutory scheme. Thus, United States v. Cleveland Indians Baseball Co., 532 U. S. 200 (2001), which analyzes the mere repetition of the same word in a different statutory context, carries little weight in this situation.

Likewise, this case differs from the circumstance we faced in Robinson v. Shell Oil Co., 519 U. S. 337 (1997). In Robinson, we considered whether “employee,” as used in § 704(a) of Title VII of the Civil Rights Act of 1964, included former employees. We determined that under the clear language of the statute, certain statutory provisions using the term “employee” made sense only with respect to former employees or current employees, but not both. Id., at 342-343. Accordingly, upon analyzing the context of § 704(a), we were compelled to conclude that the term “employee” included former employees. This case does not present a similar situation. The statute here includes a statutory cross-reference, which conveys a clear congressional intent to provide a common definition for the term “modification.” And the contextual differences between PSD and NSPS do not compel different meanings for the term “modification.” Robinson is, therefore, inapplicable.

Even if the cross-reference were merely the equivalent of repeating the words of the definition, we must still apply our usual presumption that the same words repeated in different parts of the same statute have the same meaning. See Atlantic Cleaners, supra, at 483; ante, at 574. That presumption has not been overcome here. While the broadly stated regulatory goals of PSD and NSPS differ, these contextual differences do not compel different definitions of “modification.” That is, unlike in Robinson, reading the statutory definition in the separate contexts of PSD and NSPS does not require different interpretations of the term “modification.” EPA demonstrated as much when it recently proposed regulations that would unify the regulatory definitions of “modification.” See 70 Fed. Reg. 61083, n. 3 (2005) (terming the proposal “an appropriate exercise of our discretion” and stating that the unified definition better serves PSD’s goals).

The majority opinion does little to overcome the presumption that the same words, when repeated, carry the same meaning. Instead, it explains that this Court’s cases do not compel identical language to be interpreted identically in all situations. Granting that point, the majority still has the burden of stating why our general presumption does not control the outcome here. It has not done so.

       EPA’s 1975 NSPS regulations did not specify that the “rate” means the maximum rate possible for the technology, see 40 CFR §§60.14(aHb) (1977), but the parties all read the regulations this way. See Brief for Petitioners 2; Brief for United States 7; Brief for Respondent Duke 32. At another point in the NSPS regulations, a different definition of “modification” appeared: “‘Modification’ means any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility,” § 60.2(h); see also New York v. EPA, 413 F. 3d 3,11-12 (CADC 2005) (per curiam) (“[N]either the 1975 regulation nor its preamble explained why EPA found it necessary to offer these two separate glosses on ‘modification’ ”).

       Statutory PSD superseded a regulatory PSD scheme established by EPA in 1974. See 39 Fed. Reg. 42510. Under the regulations, the term “modification” was defined as “any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promulgated.” Id., at 42514.

       Although EPA had promulgated an earlier set of PSD regulations in 1978, 43 Fed. Reg. 26380, none of the parties argues that they govern the conduct at issue in this case.

         The United States argues that some of Duke’s projects were governed by EPA’s PSD regulations promulgated in 1992 rather than the 1980 PSD regulations. Brief for United States 20, n. 4. Duke disputes this. Brief for Respondent Duke 14, n. 4. Because the United States acknowledges that the two sets of regulations “did not materially differ with respect to the legal question at issue here,” Brief for United States 20, n. 4, we will assume, as did the Court of Appeals and the District Court, that the 1980 PSD regulations control. 411 F. 3d, at 543, n. 1; United States v. Duke Energy Corp., 278 F. Supp. 2d 619, 629 (MDNC 2003).

       The Court of Appeals noted that EPA was free to abandon the requirement that a “modification” be accompanied by an increase in the hourly rate of emissions, provided it did so for both the NSPS and PSD programs. 411 F. 3d, at 550-551. In other words, the Court of Appeals raised no question about the reasonableness of the definition of “modification” in the 1980 PSD regulations, apart from its deviation from the definition contained in NSPS regulations.

       Duke argues that the 1977 amendments intended to incorporate EPA’s definition of “modification” under the 1974 regulatory PSD program. Brief for Respondent Duke 44; see also n. 2, supra. We find no support for this argument in the statutory text, which refers to the statutory NSPS definition rather than the regulatory PSD definition. Although Duke correctly points out that “Congress instructed that the bulk of the pre-existing rules ‘shall remain in effect,’ ” Brief for Respondent Duke 44 (quoting 42 U. S. C. § 7478(a)), this instruction was a temporary measure “[u]ntil such time as an applicable implementation plan is in effect,” § 7478(a). We therefore do not read this language as a restriction on EPA’s authority to interpret the statutory PSD provisions reasonably in a manner that departs from the 1974 regulations. Duke also invokes Bragdon v. Abbott, 524 U. S. 624, 631 (1998), for the proposition that “use of the pre-existing term ‘modification’ ‘carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.’” Brief for Respondent Duke 44. But this reasoning is unavailing here, given the existence of at least three distinct regulatory definitions of “modification” at the time of the 1977 amendments. See swpra, at 567-568, and nn. 1, 2.

       Two Courts of Appeals agree. See United States v. Cinergy Corp., 458 F. 3d 705, 708 (CA7 2006) (“[M]erely running the plant closer to its maximum capacity is not a major modification because it does not involve either a physical change or a change in the method of operation. If, however, a physical change enables the plant to increase its output, then, according to the EPA’s interpretation, the exclusion for merely operating the plant for longer hours is inapplicable” (emphasis in original)); Wisconsin Elec. Power Co. v. Reilly, 893 F. 2d 901, 916, n. 11 (CA7 1990) (the regulatory exclusion for increases in the hours of operation “was provided to allow facilities to take advantage of fluctuating market conditions, not construction or modification activity”); Puerto Rican Cement Co. v. EPA, 889 F. 2d 292, 298 (CA1 1989) (“[TJhere is no logical contradiction in rules that, on the one hand, permit firms using existing capacity simply to increase their output and, on the other, use the potential output of new capacity as a basis for calculating an increase in emissions levels” (emphasis in original)).

       Duke now offers an alternative argument for applying the hourly emissions test for the PSD program: before a project can become a “major modification” under the PSD regulations, 40 CFR § 51.166(b)(2)® (1987), it must meet the definition of “modification” under the NSPS regulations, § 60.14(a). That sounds right, but the language of the regulations does not support it. For example, it would be superfluous for PSD regulations to require a “major modification” to be a “physical change in or change in the method of operation,” § 51.166(b)(2)®, if they presupposed that the NSPS definition of “modification,” which contains the same prerequisite, § 60.14(a), had already been satisfied. The NSPS and PSD regulations are complementary and not related as set to subset.


author: Chief Justice Roberts,

text:
    STROUP, DIRECTOR, SOUTH CAROLINA DEPARTMENT OF ARCHIVES AND HISTORY, et al. v. WILLCOX et al.
    No. 06A592.
    Decided December 18, 2006
   Chief Justice Roberts,

Circuit Justice.

The State of South Carolina and Rodger Stroup, the director of the State’s Department of Archives and History, apply for a stay of the judgment issued by the Court of Appeals for the Fourth Circuit pending the filing and disposition of a petition for writ of certiorari in this Court. Their request fails to meet our standard for such relief. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1302 (1991) (Scalia, J., in chambers).

Moreover, a request for extraordinary equitable relief is certainly undermined when the central argument pressed was only mentioned by applicants in passing in the court below. Applicants’ request is based almost exclusively on the Court of Appeals’ failure to certify to the Supreme Court of South Carolina contested questions of state property law. In their initial submission to the Court of Appeals, however, applicants requested that the court rule on the merits of the matter. They merely noted that certification “is an option for [the] Court if it wants guidance from the South Carolina Supreme Court.” Brief for Appellants in No. 06-1179 (CA4), p. 37, n. 9.

Accordingly, the request for a stay is denied.

It is so ordered.


author: Mr. Chief Justice TANEY

text:
    Andrew Wylie, Jr., Administrator of Samuel Baldwin, Appellant, v. Richard S. Coxe.
    An appeal will not lie to this court from a refusal oLthe court below to open a prior decree, and grant a rehearing. The decision of this point rests entirely in the sound discretion of the court below.
    The case of Brockett v. Brockett, (2 How. 240',) explained.
    Two appeals having been taken, one from the original decree, and the other from the refusal to open it, the latter must be dismissed, and the case stand for hearing upon the first appeal.
    Á motion for a mandate upon the court below, to carry the decree into execution, overruled.
    This was an appeal from the Circuit Court of the United States, for the District, of Columbia.
    It was brought before the court upon the following motion : —
    The appellee in this case moves the court to dismiss the second appeal in this record from the order of the Circuit Court, overruling a motion to open the decree and grant a rehearing, . And, also, to award a writ of procedendo, commanding the said Circuit Court to proceed and execute the first decree.
    Richard S. CoÍe,„
    Dec. 22d, 1852. In pro. per.

   Mr. Chief Justice TANEY

delivered the opinion of the court

This is an appeal from the decree of the Circuit Court, for the District of Columbia.

.The bill was filed by the appellee, to recover a sum of money which he alleged was due to him for services rendered to the appellant, as administrator, and to Baldwin, the intestate, in his lifetime, in recovering a large sum of money, which was due to the said Baldwin from the Mexican government. The case proceeded to final hearing; and, on the 28th of April, 1852, the court passed its decree, directing the appellant, as administrator, to pay to the appellee $3,750, with interest from the 16th of May, 1851, until paid.

From this decree the appellant prayed an appeal to this cpurt,-and executed an appeal-bond -in the usual form, in the penalty of $200. The bond is dated on the 6th of May, 1852, and on the same day was left for approval in the clerk’s .office, and, as-appears by an. indorsement upon it, was approved and filed on the 13th of the same month.

On the 13th of May, 1852, the appellant filed a petition for a rehearing, and- on the same day moved to open the decree. The appellee answered the petition on the 19th. And, on- the 22d, the motion to open the decree and for a rehearing, was overruled by the court. And, thereupon, the appellant prayed an appeal, as well from this order as from the decree of April 28th; and on' the same day executed an appeal-bond in the penalty of $7,500, which was approved by the court.

The case is therefore here upoh two appeals: 1st, from the final decree, directing the payment of the. money; and, 2d, from the-order overruling the motion to open this decree and grant a rehearing.

" In relation to the order, it is plain that no appeal will lie from the -refusal of a motion to open the decree and grant a rehearing. The decision of such a motion rests in the sound discretion of the court below, and no appeal will lie from it.

The case of Brockett v. Brockett, (2 How. 240,) which was relied on in the argument, was decided on different ground, In that case, before any appeal was taken, a petition was filed to open the decree for certain purposes, and the court referred it. to a commissioner to examine and report on the matters stated in the petition. Upon his report, the court refused to open the decree, and the party thereupon appealed from .this refusal, as well as the original. deftree, and gave bond, with sufficient security, to prosecute the appeal. This bond was-given within ten days of the refusal of the motion,, but -was more than a month after the original decree. And the court held' that this appeal was well takén; not because an -appeal will lie from the refusal of a motion to open the decree and grant a rehearing, but because the court regarded the original decree as suspended by the action of th.e court on the motion, -and that it was not effectual and final until the motion was' overruled.

But in this case the decree was not suspended. It was final from its date. An appeal had been regularly taken from it, and an appeal-bond given. And the case has come up to this cóurt upon that appeal. There is no ground, therefore, for saying, that the first decree was not final until-the motion was overruled. It is now before this ■ court upon the first appeal; and the second appeal, although it professes to be an appeal from the original decree, as well as from the subsequent order, could not act on the original decree, which was already removed; and the validity of this last appeal must rest altogether on the refusal to open and rehear. And, as an appeal will not lie from. the decision of such a motion, the appéal, so far as concerns the order on the petition for a rehearing, and the refusal of the Circuit Court to grant the same, must be dismissed.

The first appeal was, however, regularly taken, and the case will stand for hearing.when it is reached in the regular call of the docket. And, as it is now presented by the record, we see no ground for a. mandate to the. Circuit Court. ' No application has been made1 to it to carry the decree into execution; or to stay proceedings in it pending this appeal. We are bound to presume that the court below will do whatever may be right in the premises, if the subject is properly brought before it. -And we cannot, in advance, undertake to guide their judgment by a mandate.

The motion for an order on the Circuit Court, to proceed to carry the decree into, execution, is therefore overruled.


text:
    Ex parte David Taylor.
    A rule will be refused for the judges of the Circuit Court of the District of Columbia to show cause why a -mandamus should not issue, unless a case is presented which prima facie requires the interposition of this court-
    Such a case is not presented where the Circuit Court decided 'that, under an act of Congress, an affidavit was sufficient to hold a party to special bail. That court had the power, by the act, to exercise its judicial discretion.
    This a'ct of Congress regulated 'the subject, and not the statute of Maryland, passed in 1715.
    This case came before the court upon the following motion and petition: —

    The above petitioner moves the honorable the Judges of the Supreme Court of the United States, for a rule on the Judges-of the Circuit Court of the District of Columbia, for Washington County, to show cause why a mandamus should not issue commanding them to admit the appearance of the petitioner to a suit in said court, by Thomas Ewing, Jr., against said petitioner; and the petitioner moves for the said rule on his petition, and the transcript therewith filed.
    1. Because there is no legal cause of bail set forth in the proceedings in said suit, and by the refusal .bf the Circuit Court to. allow his appearance to be entered to said suit, he is unlawfully detained in custody by the marshal of said district.
    2. Because the act of Maryland, passed in 1715, c. 46, j 3, is in force in the county of Washington, and nowise repealed; and the petitioner was by virue of said act entitled to appear to said suit, on giving special bail in the sum of one hundred and thirty-three dollars thirty-three and a third cents. But the court refused to allow him so to apj)ear, or to enter bail in said amount.
    3. Because the petitioner has a legal right to appear without bail, of upon giving bail to the amount reouired by the act of 1715, c. 46, § 3, ajnd thereby to be discharged from prison, and the said legal right does not depend on the discretion of the court, but is fixed and regulated by law, and there is other legal remedy for the petitioner in the premises.
    Robert J. Brent, for Petitioner.

      To the Judges of the Supreme Court of the United States.

    The petition of David Taylor respectfully showeth, that he is now confined in the jail in the city of Washington, at the suit -of a certain Thomas Ewing, Jr., and he refers to the accompanying transcript of the record of said suit, and makes the same a part of this petition,.for the better understanding of the proceedings under which he is now unjustly and oppressively detained in prison.
    Your petitioner showeth, that by said record it appears he was held to bail in said suit, upon the affidavit of .said Ewing, and without a. copy of the declaration being served on him, as required by the act of the legislature of Maryland of 1715, c. 46, § 3.
    That, at the return- of the writ of capias ad respondendum, issued in said cause, your petitioner moved to enter his appearance without giving special bail, because of the alleged insufficiency of the affidavit to hold to bail, but said motion was overruled by the Circuit Court of the District of Columbia for Washington County. That, thereupon, your petitioner moved to enter'his appearance. to said suit, upon giving good and sufficient special bail, in the sum of one hundred and thirty-three dollars and thirty-three and one third cents, because of the omission to serve your petitioner with a copy of the declaration, according to th.e terms of the aforesaid act of 1715, c. 40, § 3 ; ■ and your petitioner then and there tendered in open court good and sufficient bail, in the last-mentioned sum of money. The sufficiency of said bail for said amount was fully admitted by said court, as will appear by reference to said transcript óf the fecord; but the court overruled said application upon the express ground that your petitioner was bound to enter special bail to said action, in the amount of the sum sworn to in the affidavit of said Ewing, which sum is shown in said affidavit to be four thousand nine hundred and seventy dollars. Your petitioner is advised that the aforesaid recited act of the legislature of Maryland is in full force in Washington county aforesaid; and that, under and. by virtue of said law, it was the duty of the marshal to require no greater appearance-bail, and of the court to require no greater special bail than the amount specified in said act, where no copy of the declaration is sent to be served with the writ; and your petitioner is also advised, that there is in said affidavit no legal cause of bail whatever. Wherefore, inasmuch as the said Circuit Court has refused both of said applications for an appearance on the part of your petitioner to said suit, and as the law provides no other adequate remedy in the premises, whereby your petitioner can, before the final determination of said suit, regain his personal liberty, whereof he is now illegally and unjustifiably deprived, your petitioner prays that the writ of mandamus may be issued and directed to the Judges of said Circuit Court, commanding and enjoining them-to receive the appearance of'your petitioner to said action, either without requiring special bail,'or upon your petitioner causing good and. sufficient special bail to be entered to said action, in the sum of one hundred and thirty-three dollars and thirty-three cents and one third of a cent.

    And, as in duty bound, your petitioner will ever pray, &c.
    Robert J. Brent, for Petitioner.

      District óf Columbia, Washington County, to wit:

    Before the subscriber, a justice of the peace of the.Distrie of Coluprbia, in and for Washington county, personally appears David Taylor, the within petitioner, and made oath -on the Holy Evangely of Almighty God, that the facts, as stated in the said petition, are true, to the best of his knowledge and belief. •' J. W, Beck, J. P.

    Dec. 10,1852..

      District of Columbia, ss.
    At a Circuit Court of the District of Columbia, begun and held in and for the cdunty of Washington, at the city of Washington, on the third Monday of October, being the eighteenth' day of the same month, in the year of our Lord one thousand eight hundred and fifty-two, and of the independence of the United States the seventy-seventh.
    Present, William Cranch, Chief Judge.

    The Hon. James S. Morsél-l, and ) Assistant

    James-Dunlop, j Judges.

    Richard Wallach, Esquire, Marshal.

    John A. Smith, Clerk.

    In the records of proceedings of the. said court, amongst others, are the .following, to- wit: —
    Thomas Ewing, Jr.

      v.

    David Taylor.
    Be it remembered, to wit, on the 4th day. of October,. 1852, the said plaintiff, by Charles S. Wallach, Esquire, his attorney, prosecuted and sued forth out of the Circuit Court here, the United States writ of capias ad respondendum, directed to the marshal of the District of Columbia, in form following, to wit: —

      District of Columbia, to wit:

    The United States of America, to the Marshal of the District-of Columbia, Greeting:
    We command you, that you take David Taylor, late of Washington county, if he shall be found -ivithin the county of Washington, in your said district, and him se^ely keep, so. that you have his body before the Circuit Court of the District of Columbia, to be held for the county aforesaid, at the city of Washington, on the 3d Monday of October instant, to answer unto Tilomas Ewing, Jr., in a plea of trespass o.n the case, and so forth.
    Hereof fall, not at your peril, and have you then.and there this Y<rit.
    Witness William Cranch, Esq., Chief Judge of our said court, at the city of Washington, the 22d day of May, Anno-Domini one thousand eight hundred and fifty-t\yo,
    Issued this 4th day of October, 1852.

      Wallach. Jno. A. Smith, Clerk.

      District of Columbia, Washington County, to wn:

    And the aforesaid plaintiff, on the day of prosecuting and suing forth of the. aforegoihg writ, déclared against the said defendant in the plea aforesaid, in, the form following, to wit: —

      District of Columbia, Washington County, to wit:

    David Taylor, late ol x'ne county aforesaid, was attached to answer unto Thomas Ewing, Jr., in a plea of trespass on the. case, and so forth. And whereupon the said plaintiff, by Charles S. Wall'ach, hi's attorney, complains that, whereas the defendant, 'on- the first day .of September, in the year eighteen hundred and fifty-two, at the county- aforesaid, was indebted to the plaintiff in the sum of four thousand nine hundred and seventy dollars, current money of the United States, for sundry matters- and articles, properly chargeable in an «ccount, as by a particular account thereof herewith into court exhibited, • appears. And being so indebted, the defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, of the county aforesaid, undertook, and faithfully promised to the said plaintiff, to pay him the aforesaid sum of money, when, he- should be thereto afterwards required.
    And whereas; also, the defendant, on the first .day of September, in the year eighteen hundred and fifty-two,- at the county aforesaid, .was indebted to the plaintiff in the further sum of fqur thousand nine hundred and seventy dollars, for work and labor done and performed by the plaintiff, for the defendant, at his special request; and in the further sum of four thousand nine hundred and seventy dollars, for money received by the defendant for the use of the plaintiff; and in the further sum of- four thousand nine hundred and seventy dollars, for money lenJ.and' advanced by the. jplaintiff to the defendant, at his, the- defendant’s, request; and in-the further sum of four thousand nine hundred and seventy dollars, for money paid, laid oxit, arid expended, by the plaintiff fox the use.-of the' defendant, at his, the defendant’s, request; and being so.indebted, the defendant -afterwards, that is to sáy, on the day and year aforesaid, at the county aforesaid, in consideration thereof, undertook, and then arid there faithfully promised to the said plaintiff, that he. the defendant, .the said several sums of money, when required, would well and truly pay to the plaintiff.
    ■ And whereas, the defendant afterwards, that is to say, on the first day of September, in the year aforesaid,.- at the county aforesaid, accounted with the plaintiff of a,nd concerning divers sums of money, from the said defendant to the. plaintiff due, owing, then in arrear and unpaid ; and upon such accounting, the said defendant was then and there found in arrear, and in-. debted to the said plaintiff the further sum of four thousand nine hundred and seventy dollars ; and being so found in arrear and indebted, the said defendant afterwards, that is .to say, on-the day and .year last mentioned, at the county aforesaid, in consideration thereof, undertook, and then and there faithfully promised to pay to the plaintiff, when thereto afterwards required, the said last-mentioned sum of money.
    Nevertheless, the defendant said promises in nowise regarding, the said several sums of money, or any part thereof, though' often required, to the plaintiff has not paid, but the same to pay has always refused, aird still refuses, to the damage of the plaintiff, in the sum of ten thousand dollars, and therefore he brings suit, &c. Charles S. Wallach,

      For the Plaintiff.

    The said plaintiff, by his attorney qforesaid, at the time of prosecuting and suing forth the said writ, also filed the following affidavit to hold to bail, to wit: —

      District of Columbia, Washington County, to wit:

    Thomas Ewing, Jr.

      v.

    David Taylor.
    On this fourth day of October, 1852, personally appeared before me,- the subscriber, a justice of the peace, in and for the county and district aforesaid, Joseph T. Coombs, of the county and district aforesaid, agent for the plaintiff in the. above cause, and made oath on the Holy Evangely of Almighty God, that David Taylor, a resident of the State of North Carolina, defendant in the above cause, is indebted to the said plaintiff in the full and just sum of four thousand nine hundred and seventy dollars, for moneys due upon a certain agreement of contract herewith-filed, and for work and labor done at his, the said David Taylor’s, special instance and request, in the district and county-aforesaid, a particular account whereof is herewith filed. And that the said Taylor, being now in the said county and district, is about to remove from and go out of ''said county and district, apd remove his property, rights, and credits from said county-and. district, witlra view and in order to avoid the payment.-of the said -defit, as this affiant verily believes, and that said debt was con-' tr-act’ed in said county and district by the said David Taylor; 2nd that said work and labor were done and performed in the said county and district by the said plaintiff, -between the 8th day of March, 1850, and the first day of September, 1852, at his, the said David Taylor’s, special instance and request.
    J. T. Coombs.
    Subscribed., and sworn before me. H. Naylor, J. P.

    4th Octpber, 1852.

      Agreement referred to in the aforegoing. Affidavit.

    Contract made and concluded on the .twenty-eighth day of March, A. D- 1851, by and between Thomas Ewing,- Junior, formerly of Ohio, and David Taylor, formerly of North Carolina, in behalf of himself and his wife and childien, in these words: ■ — '
    The said party of the first part, covenants and .agrees to prosecute- before Congress, or before the public departments of the general government, the claim of the said party of the second part, and that of his wife and children, under the. Cherokee treaty of 1835 — 6, to the appraised value of a. .reservation of 640 acres of land, lying in i lie State of Tennessee, which said claim was before the Committee of Indian Affairs- of the ' Senate at 4he last session of Congress; ancjl further, that the said party of the first part, will use proper- diligence in the prosecution -of the said claim, and at no time will let. the interests of the said party of the second part suffer b.y want of a proper degree of attention to the claim, on his part, unless prevented from rendering it- By sickness or -some -other unavoidable and unforeseen necessity..
    And the said party of the second part, in consideration of the valuable, services which the. said party of the first part nas already rendered in the prosecution of the said claim ; apd in further consideration of the agreement which the said party of the first part herein makes, to confinne to.prosecutetlie claim-until it is finally allowed and paid, hereby, covenants and agtees to pay unto the said .party of tire first part the sum qf twenty per centum upon the amount of said claim,- whenever the shipe may be allowed; and if at any time a part of.it only is allowed then the said party of the second part covéna'nfej and agrees to pay unto the said party-of the first part, a like percentage upon' the sifm allowed. ' .
    And' for the true and faithful performance of all the agreements above mentioned,'the parties to these presents bind themselves, each unto the other, in tire penal sum of five thousand dollars; as fixed and settled-damages, to be paid by the- failing,party.
    In testimony whereof,'the parties .to. these presents have' hereunto s'et their hands and ailixed their seals, the day and year-first above written. • Tho. Ewing,.-Jr. . [seal.] -
    • ll*lS
    David X'Taylor ísral.]
    mark.

      The within .contract was read by me to Mr. Taylor, before signing it, and he declared himself fully satisfied with the conditions herein expressed.
    ■ Signed, sealed, and delivered in my presence, this 28th day of March, A. D. 1851. W. H. Colledge.
    A copy of which said affidavit was .made, and sent with the writ aforesaid to the marshal of the district aforesaid, thereon indorsed, to. wit, “ To be served. on the defendant with the writ.”

      Account referred to in the foregoing Affidavit, to wit:

    Washington, Sept. 1st, 1851.
    Mr. David Taylor, Dr. to Thomas Ewing, Jr.
    To commission, 20 per cent., on .$24,853.04, amount allowed on your claim against United States, under Cherokee Trea y of 1835, for work and labor done and performed in obtaining said allowance, and as per agreement . . . $4,970.00
    At which mentioned third ' Monday of October, in the year eighteen hundred and fifty-two, and the day of th'e return of the aforegoing writ, comes again into the Circuit Court here, the said plaintiff,.by his attorney aforesaid; and the marshal of the district aforesaid, to whom the said writ was in form aforesaid directed, makes return, thereof to the court thus indorsed, to wit, “ Cepi in jail. R. Wallach, Marshal.”
    And now, to wit, on the day of November, A. D, 1852, in open court, appears David Taylor,'in custody of the marshal ,of the'district aforesaid, and moves the court' here that he be permitted to enter a common appearance to the said writ of the said Thomas 'Ewing, Jr.; and at the same time the said'David Taylor, by his attorney, Robert J. Brent, Ésq., offered to-appear to said writ, and to defend the same; but 'the court refused to allow the said David Taylor to appear to said writ until he should.give special bail, to the amount of indebtedness sworn to in the affidavit of said Thomas Eyeing, Jr., filed in this cause. And thereupon the said David Taylor, so being in open court, prayed the court to take special bail for him in this action, to the- amount of one hundred and thirty-three dollars thirty-three and one third cents. And at the same time appeared'in open court John Frederick May and Joseph L. Williams, residents of the District of Columbia, who, with the consent of the said David Taylor, offered to enter themselves as special bail for the said David Taylor, and to justify in double the-said last-amount; but the court, in nowise denying the sufficiency of said bail as offered, refused to accept or take special bail, for any amount less than the amount sworn to by said Thomas Ewing, Jr., as aforesaid; and the said David Taylor declining to give or offer bail to the amount required by the court, he is thereupon ordered and remanded by the court to the custody of the marshal of the District of Columbia.
    Test. John A. Smith, Clerk.

      District of Columbia, Washington County, to wit:

    I, John A. Smith, Clerk of the Circuit Court of the District of Columbia, for the county of Washington, hereby certify that the aforegoing is a full and perfect, transcript of all the proceedings had in the said court, in the said case of Thomas Ewing, Jr., against David Taylor, as appears from the minutes of the proceedings of said court.
    In testimony whereof, I have hereunto subscribed my name, and affixed the seal of said court, this 10th December, 1852.
    [seal.] Jno. A. Smith, Clerk.

    It appears, in this case, that a suit Was brought in thq Circuit Court of the United States for Washington County, in’ the District of Columbia, by Thomas Ewing, Jr., against David Taylor, to recover a sum of money which he alleged to be due to him, upon a contract which is set forth in the proceedings,, and also for services rendered to Taylor at his instance and request.
    The writ issued on the 4th of October, 1852, returnable to the October term, which began on the third Monday of the same month. And at the time of issuing the writ, the plaintiff filed his declaration containing the usual money counts, and also an affidavit stating the amount due, and the' nature of his claim; that the debt was contracted in Washington county, in .the District of Columbia, and that Taylor, being then in said county and district, was about to remove from it, and remove his property, rights, and credits, in order to avoid the payment of this debt.
    The marshal arrested Taylor, and made his return upon the writ “ Cepi in jail; ” and thereupon Taylor appeared in court, in the custody of the marshal, and, by his counsel, moved for leave to appear on common bail.- But the court refused to per-' mit him to appear and to discharge him from custody, until he should give bail to the amount of the debt sworn to in the affidavit of the plaintiff. Taylor then moved for leave to appear, upon giving bail in the sum of-one hundred" and thirty-three dollars thirty-three and a third cents, claiming that he was entitled to be discharged, upon giving bail to that amount, under the act of Assembly of .Maryland of 1715, which act, together with the other laws', of -Maryland in foi-ce when the United States assumed jurisdiction over this district, were adopted by Congress as the Jaws of Washington county.
    But the Circuit Court adhered to its decision, and' refused to permit the party to appear, without giving bail to the amount claimed in the plaintiff's affidavit.
    Upon this state of the case, Taylor moves for a rule on the Judges of the Circuit Couyt to show cause why a mandamus shall not be issued from this court, commanding the Judges of the Circuit Court to permit Taylor -to appear to the above-mentioned suit on common, bail, in order that he may be discharged from the custody of the marshal; and failing that motion, then to show cause why he ghould not be permitted to appear, upon giving bail to the amount of one hundred and thirty-three dollars and thirty-three and one third cents, under the provisions of the Maryland law.
    According to the established practice of this court, a rule of this kind is not granted as a matter of course, and the inferior court is never called on to show cause, unless a case is presented which primd facie requires the interposition of this court. It was so settled in the case of the Postmaster-General v. Trig, Administrator of Rector, 11 Pet. 173.
    We. proceed, then, to inquire whether such a case has been presented to support this motion.
    The proceedings by which Taylor was arrested and hela m custody, were under the act of Congress of August 1st,-1842, (5 Stat. at Large, 498.) This act provides' that no person shall be held to bail jn any suit in the District of Columbia, unless upon such an affidavit as is described in the law, which must be filed previously to the issuing of the writ.
    It is insisted, on behalf of Taylor, that he was entitled to his discharge from custody upon entering an appearance by his attorney to the suit, because, as he alleges, the affidavit filed in the suit does not conform to the provisions of the act of Congress, and therefore was not sufficient, under that law, to justify the coúit in demanding bail.
    But that is a question which this court cannot consider. The act of Congress provides that the sufficiency of the affidavit to hold to bail, and the amount of bail to be given shall, upon application of the defendant, be decided by the court in term time, and by. a single judge in vacation. In deciding upon (he application to discharge Taylor from the custody of the marshal, the court must necessarily have considered and interpreted the act of Congress, as well as the affidavit, and determined whether the affidavit was sufficient or not. And certainly, even in England, the King’s Bench never claimed or exercised the power to issue a mandamus to an interior courr of record, commanding it to reverse its judgment, in a matter where the law authorized it to judge. In the case before us, the power of deciding on the sufficiency of the affidavit, and the amount of bail, is a part of the judicial power of the court. It has exercised this power, and passed its judgment. We do not mean to say that this judgment is in any respect erroneous. But, assuming it to be so, this court cannot, by mandamus, command them to reverse it. The writ has never been extended so far, nor ever used to control the discretion and judgment of an inferior court of record acting within the scope of its judicial authority. There is no ground, therefore, for the rule under the act Of Congress.
    The application under the Maryland act of 1715, is equally untenable. The provision in that act relied on in support of the motion, was never held in Maryland to apply to any thing but the bail-bonds to be taken by the sheriff' in certain cases, and never influenced the decision of the courts as 'to the amount of bail --to be required when the defendant was brought into court. But it is unnecessary to speak of that act, or of - the construction it received in the courts of Maryland; because the right of the plaintiff’ in the Circuit Court to demand bail depends altogether upon the act of Congress. And if there is any discrepancy between this act and the act of Assembly of 1715, the act of Congress must govern, and is a repeal pro4anto of the Maryland law.
   The rulé to show cause is therefore refused.