Savage Services Corporation v. United States ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10745
____________________
SAVAGE SERVICES CORPORATION,
SAVAGE INLAND MARINE, LLC (UTAH),
Plaintiffs - Counter-Defendants - Appellants,
versus
UNITED STATES OF AMERICA,
Defendant - Counter-Claimant - Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cv-00137-WS-N
____________________
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2 Opinion of the Court 21-10745
Before ROSENBAUM and JILL PRYOR, Circuit Judges, and ALTMAN,*
District Judge.
ALTMAN, District Judge:
In the wake of the Exxon Valdez oil spill, which saw millions
of gallons of oil pour into the waters off Alaska’s coast, Congress
passed the Oil Pollution Act of 1990 (the “OPA”). The OPA creates
a comprehensive remedial scheme that governs—and apportions
liability for—oil-removal costs. The statute holds oil spillers strictly
liable upfront for oil-removal expenses and then carefully incentiv-
izes their good behavior by allowing them, if they meet certain re-
quirements, (1) to avail themselves of one of three liability defenses
and (2) to seek contribution on the back end from other culpable
parties.
In our case, the M/V SAVAGE VOYAGER was transporting
oil through a Mississippi waterway when an accident at a boat lift—
operated by the U.S. Army Corps of Engineers—caused a rupture
in the SAVAGE VOYAGER’s hull, through which thousands of gal-
lons of oil poured into the river. Blaming the Government, the
owners of the vessel sued the United States. Critically, though, they
sued, not under the OPA, but under the common-law admiralty
regime that has persisted for centuries. And, hoping to pierce the
* The Honorable Roy K. Altman, United States District Judge for the Southern
District of Florida, sitting by designation.
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21-10745 Opinion of the Court 3
Government’s sovereign immunity, they relied on the Suits in Ad-
miralty Act (the “SAA”), a 1920 law by which Congress generally
waived sovereign immunity for most admiralty claims.
This case—hinging on the interplay between the OPA and
the SAA—presents an issue of first impression in the federal courts.
The district court dismissed the vessel owner’s claims for removal
costs in two steps. First, the court held that the OPA authorizes no
claim against the Government for oil-removal damages. Second, it
concluded that the OPA’s comprehensive remedial scheme dis-
placed the SAA’s more general sovereign-immunity waiver. We
agree and now affirm.
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4 Opinion of the Court 21-10745
BACKGROUND
I. The Spill
We start at the beginning—with an oil spill in the Tennes-
see-Tombigbee Waterway, a manmade system of canals, locks, and
dams linking the Tennessee River in Mississippi with the
Tombigbee River in Alabama. Here’s a map of the Waterway:
On September 8, 2019, the M/V SAVAGE VOYAGER was
pushing two tank barges along the Tennessee-Tombigbee Water-
way. 1 Our Plaintiffs—Savage Services Corp. and Savage Inland
1 Tank barges are non-self-propelled vessels that carry liquids—including oil.
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21-10745 Opinion of the Court 5
Marine LLC—owned the vessel. 2 Along its journey, the vessel ap-
proached the Jamie Whitten Lock, a boat lift operated by the U.S.
Army Corps of Engineers (the “Army Corps”).
Things quickly devolved from there. On Savage’s account,
when the barge entered the lock, the lock master “began de-water-
ing the lock chamber without notice or warning to the crew” and
without “confirm[ing] the tug and tow were within the miter
walls.” At that point, the vessel’s crew noticed that the “rake end”
of one of the barges was caught on the north miter wall. The crew
immediately relayed this information to the lock master. But, by
then, it was too late. The lock chamber descended nearly sixty
feet—and, as the water in the chamber fell, the barge rose out of
the water until the angle became so steep that the barge fell off the
miter wall. The weight of the barge caused the rake end of the
barge to bend upward. According to Savage, the distorted rake
“punctured a cargo tank . . . , resulting in a release of crude oil into
the lock chamber.” In the end, the barge looked like this:
2 For simplicity’s sake, we’ll refer to Savage Services Corp. and Savage Inland
Marine LLC (collectively) as “Savage.”
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6 Opinion of the Court 21-10745
Savage alleges that the Army Corps was “solely responsible”
for the accident and that “[t]here was nothing the SAVAGE
VOYAGER could have done to avoid the accident.” Savage also
says that, as a result of the Army Corps’s sole negligence, Savage
suffered $4 million in damages—mostly due to the time-consum-
ing process of removing oil from the Waterway. Hoping to recover
these costs, Savage sued the United States in admiralty, relying in
large measure on the Suits in Admiralty Act of 1920. In the SAA,
the United States waived its sovereign immunity for most admi-
ralty claims. See 46 U.S.C. § 30903(a) (“In a case in which, . . . if a
private person or property were involved, a civil action in admi-
ralty could be maintained, a civil action in admiralty in personam
may be brought against the United States or a federally-owned cor-
poration.”).
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II. The Federal Water Pollution Control Act
Before the Oil Pollution Act of 1990—the law that now gov-
erns oil-removal liability—there was the Clean Water Act, more
formally known as the Federal Water Pollution Control Act
Amendments of 1972 (the “FWPCA”). The FWPCA was the cor-
nerstone of a fractured liability scheme. See J.B. Ruhl & Michael J.
Jewell, Oil Pollution Act of 1990: Opening a New Era in Federal
and Texas Regulation of Oil Spill Prevention, Containment and
Cleanup, and Liability, 32 S. TEX. L. REV. 475, 481 (1991) (“The cor-
nerstone of pre-OPA federal oil spill liability law was found in the
Federal Water Pollution Control Act[.] Supplementing that central
provision in specified, limited contexts were the Trans-Alaska Pipe-
line Authorization Act, the Deepwater Port Act of 1974, and the
Outer Continental Shelf Lands Act[.]”).
The default under the FWPCA was for the federal govern-
ment to take the lead on oil-spill removal. In the event of an oil
spill, the law authorized the President of the United States “to act
to remove or arrange for the removal of such oil or substance at
any time, unless he determines such removal will be done properly
by the owner or operator of the vessel . . . from which the discharge
occurs.” 33 U.S.C. § 1321(c)(1) (1988).
As to liability, the FWPCA provided that the “owner or op-
erator of any vessel from which oil . . . is discharged . . . shall . . . be
liable to the United States Government for the actual costs . . . for
the removal of such oil or substance by the United States
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8 Opinion of the Court 21-10745
Government.” Id. § 1321(f)(1). The vessel owner was strictly liable
for those costs, subject to certain complete defenses. Those de-
fenses allowed the owner to avoid liability by “prov[ing] that a dis-
charge was caused solely by (A) an act of God, (B) an act of war,
(C) negligence on the part of the United States Government, or (D)
an act or omission of a third party without regard to whether any
such act or omission was or was not negligent, or any combination
of the foregoing clauses.” Id. (emphasis added). Remember the em-
phasized portion of this last sentence because it will become very
important to our overall story. The United States could seek the
“full amount” of its oil-removal costs if it could “show that such
discharge was the result of willful negligence or willful misconduct
within the privity and knowledge of the owner.” Id. Otherwise, the
owner’s liability was capped by the vessel’s typology and its size.
Id.
On top of allowing complete defenses, the FWPCA left the
door open for responsible parties to bring contribution claims
against third parties: “The liabilities established by this section shall
in no way affect any rights which . . . the owner or operator of a
vessel . . . may have against any third party whose acts may in any
way have caused or contributed to such discharge.” Id. § 1321(h).
The FWPCA also created a “revolving fund” to finance govern-
ment-cleanup efforts: “[t]here is hereby authorized to be appropri-
ated to a revolving fund to be established in the Treasury such
sums as may be necessary to maintain such fund at a level of
$35,000,000.” Id. § 1321(k).
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III. The Oil Pollution Act of 1990
Congress passed the Oil Pollution Act of 1990 in the after-
math of the Exxon Valdez oil spill, which had resulted in more than
11 million gallons of crude oil spilling into Alaska’s waters. S. REP.
NO. 101-99, at 1 (1989). After Exxon Valdez, Congress concluded
that “the costs of spilling [oil] and paying for its clean-up and dam-
age is not high enough to encourage greater industry efforts to pre-
vent spills and develop effective techniques to contain them.” S.
REP. NO. 101-94, at 3 (1989). Congress also found fault in the “frag-
mented collection of Federal and State laws providing inadequate
cleanup and damage remedies”—along with the “taxpayer subsi-
dies to cover cleanup costs.” Id. at 1. The FWPCA, Congress felt,
“set[] inappropriately low limits of liability.” Id. And its revolving
fund was entirely inadequate: “Between 1971 and 1982 the United
States Government obligated $124 million from the . . . revolving
fund, but recovered only $49 million from spillers, for a total ex-
penditure of $75 million in national funds. . . . [S]ince the fund is
appropriated from the Treasury, it undercuts budget reduction
goals and runs counter to cost internalization policies.” Id. at 3. The
“purpose” of the OPA was “to establish a comprehensive system of
liability and compensation for damages caused by oil pollution,”
H.R. REP. NO. 101-242, pt. 2, at 31 (1989), and to “internalize those
costs [associated with oil-spill cleanup] within the oil industry and
its transportation sector,” S. REP. NO. 101-94, at 2.
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10 Opinion of the Court 21-10745
To effectuate those ends, the OPA—which amends the
FWPCA3—sets out a comprehensive scheme that apportions liabil-
ity for oil-cleanup costs and damages. For starters, the OPA defines
the “responsible party” in any oil spill as the “person owning, oper-
ating, or demise chartering the vessel.” 33 U.S.C. § 2701(32)(A). In
the event of an oil spill, the OPA requires the executive branch to
identify the responsible party. Id. § 2714(a) (“When the President
receives information of an incident, the President shall, where pos-
sible and appropriate, designate the source or sources of the dis-
charge or threat.”). The responsible party is then strictly liable—at
least in the first instance—for any oil-removal costs or damages:
“Notwithstanding any other provision or rule of law, . . . each re-
sponsible party for a vessel . . . from which oil is discharged . . . is
liable for the removal costs and damages . . . that result from such
incident.” Id. § 2702(a).
In exchange for this initial liability, the OPA offers vessel
owners significant financial incentives to encourage them to fully
perform their obligations. First, the OPA provides a complete de-
fense to liability “if the responsible party establishes, by a prepon-
derance of the evidence, that the discharge . . . of oil and the
3 See United States v. Am. Com. Lines, L.L.C., 759 F.3d 420, 422 (5th Cir. 2014)
(noting that the “Clean Water Act (‘CWA’), also known as the Federal Water
Pollution Control Act (‘FWPCA’), 33 U.S.C. [§] 1321, [was] amended by
OPA”); Water Quality Ins. Syndicate v. United States, 522 F. Supp. 2d 220, 231
(D.D.C. 2007) (explaining that the “predecessor statute to the OPA [was] the
Federal Water Pollution Control Act”).
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resulting damages or removal costs were caused solely by . . . (1)
an act of God; (2) an act of war; (3) an act or omission of a third
party . . . ; or (4) any combination of paragraphs (1), (2), and (3).”
Id. § 2703(a). Note the conspicuous absence of the third clause we
highlighted earlier—which allowed for a complete defense under
the FWPCA in cases where the federal government was negligent.
Second, the OPA establishes limitations on the responsible party’s
liability. The liability of the owner of a double-hull tank vessel
weighing less than 3,000 gross tons, for example, would be limited
to the greater of $1,900 per gross ton or $4 million. Id. § 2704(a).
But these benefits (the complete defenses and the liability limits)
are available to responsible vessel owners only if they “report the
incident as required” and “provide all reasonable cooperation and
assistance . . . in connection with removal activities.” Id. §§ 2703(c),
2704(c)(2). The liability limits are unavailable if the responsible
party’s “gross negligence or willful misconduct” caused the spill.
Id. § 2704(c)(1).
In addition to supplying complete defenses to liability, the
OPA also allows—in a carefully worded provision—responsible
vessel owners to seek contribution from other culpable parties: a
“person may bring a civil action,” the law says, “for contribution
against any other person who is liable or potentially liable under
this Act or another law.” Id. § 2709. The statute defines the term
“person” to mean “an individual, corporation, partnership, associ-
ation, State, municipality, commission, or political subdivision of a
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State, or any interstate body.” Id. at § 2701(27). This definition (no-
tably) does not include the United States Government. Id.
Through the OPA, Congress created the Oil Spill Liability
Trust Fund. The Fund’s resources come from (among other things)
(1) environmental taxes on crude oil and certain petroleum prod-
ucts and (2) government collections from specified environmental
fines and penalties. 26 U.S.C. § 9509. The Fund works like an insur-
ance pool: When a responsible party is entitled to a complete “de-
fense to liability” or a “limitation of liability,” the Fund will both
reimburse the responsible party for payments made and cover any
additional removal costs and damages. 33 U.S.C. § 2708(a). Simi-
larly, if a responsible party fails to timely pay a claim for removal
costs or damages, the entity that does pay those costs may present
its claim for reimbursement to the Fund. Id. § 2713(a), (c) (noting
that a claimant who first presents its claim to the responsible party
may then “present the claim to the Fund” if the responsible party
“denies all liability” or does not “settle[]” the claim “within 90
days”). 4
4 See generally Cynthia M. Wilkinson et al., Slick Work: An Analysis of the
Oil Pollution Act of 1990, 12 J. ENERGY NAT. RES. & ENV’T L. 181, 207 (1992)
(“The Federal Oil Spill Liability Trust Fund (Federal Fund), is available to pay
for oil-spill related costs when the spiller cannot be identified, when the spiller
can successfully defend against a charge of liability, when the spiller can invoke
liability limits and claims exceed those limits, when the spiller is not subject to
United States jurisdiction (a foreign spiller), or when a spiller is insolvent or
otherwise cannot make good on its obligations under the OPA.”).
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IV. The District Court’s Order
In response to Savage’s amended complaint, the Govern-
ment filed a partial motion to dismiss, contending that the United
States has not waived its sovereign immunity for Savage’s “spill re-
moval cost claim.” The Government didn’t move to dismiss Sav-
age’s claims for other damages—e.g., its claims for barge-repair,
loss-of-use, and lost-cargo costs.5 Savage, in turn, moved for partial
summary judgment, seeking an affirmative ruling that the United
States has waived its sovereign immunity as to those same oil-re-
moval claims.
The district court granted the Government’s motion to dis-
miss and denied Savage’s motion for summary judgment. As the
court put it: “Congress has enacted a specific, detailed statute as-
signing responsibility for oil-spill cleanup costs (at the initial payee
level, and beyond) that lacks any waiver of sovereign immunity ap-
plicable to the events pleaded in the Amended Complaint.” “In so
doing,” the district court held, “Congress has expressed its intent to
effect an implied repeal of the general sovereign immunity provi-
sion in the [SAA] as it pertains to oil-spill cleanup damages.” Savage
timely appealed.
5 The United States also filed a counterclaim for about $150,000 in “monitor-
ing costs.” The Government alleges that it incurred these costs “[i]n respond-
ing to this incident”—specifically, when “the U.S. Coast Guard closed the Ten-
nessee-Tombigbee Waterway between mile markers 410 and 414 and estab-
lished a Unified Command to direct cleanup efforts.”
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STANDARD OF REVIEW
We review the district court’s order granting the motion to
dismiss and denying the motion for summary judgment de novo.
See Sun Life Assurance Co. of Can. v. Imperial Premium Fin., LLC,
904 F.3d 1197, 1207 (11th Cir. 2018).
DISCUSSION
This case is hard in part because (at least at first glance) it
seems to fall squarely at the intersection between two well-estab-
lished canons. On the one hand, we are “heirs to a system in which
the sovereign, the king, was not amenable to suit.” ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS 281 (2012) [hereinafter READING LAW]. Tracking
that tradition, “[a]bsent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.” F.D.I.C. v. Meyer,
510 U.S. 471, 475 (1994); see also United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United States may not be
sued without its consent and that the existence of consent is a pre-
requisite for jurisdiction.”). “Waivers of the Government’s sover-
eign immunity, to be effective, must be unequivocally expressed.”
United States v. Nordic Vill. Inc., 503 U.S. 30, 33 (1992) (internal
quotation marks omitted). Indeed, “[a]ny ambiguities in the statu-
tory language are to be construed in favor of immunity[.]” F.A.A.
v. Cooper, 566 U.S. 284, 290 (2012).
On the other hand, “[c]ourts generally adhere to the princi-
ple that statutes relating to the same subject matter should be
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construed harmoniously if possible, and if not, that more recent or
specific statutes should prevail over older or more general ones.”
Tug Allie-B, Inc. v. United States, 273 F.3d 936, 941 (11th Cir. 2001)
(quoting S. Nat. Gas Co. v. Land, Cullman Cnty., 197 F.3d 1368,
1373 (11th Cir. 1999)). In other words, while recognizing that
what’s new and specific trumps what’s old and more general,
we’ve also warned that “[t]he conclusion that two statutes conflict
. . . is one that courts must not reach lightly.” Miccosukee Tribe of
Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1299
(11th Cir. 2010). “Courts must first ‘assiduously attempt’ to try to
construe two statutes in harmony before concluding that one im-
pliedly repeals the other.” Id. (quoting Tug Allie-B, 273 F.3d at 952(Black, J., concurring)). While this “canon is hardly absolute,” a
“doctrine of readily implied repealer would repeatedly place earlier
enactments in doubt.” READING LAW at 327–28.
The problem, as the parties present it, is that these presump-
tions pull (or seem to pull) in opposite directions in our case. The
Government, guided by the presumption against waivers of sover-
eign immunity, says that the OPA sets out a comprehensive reme-
dial scheme that doesn’t allow responsible parties to sue the United
States. Savage, by contrast, contends that the OPA, especially when
read together with the SAA, does create a cause of action against
the United States—or (alternatively) that it authorizes responsible
parties to bring common-law admiralty claims against the federal
government.
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“In ascertaining the plain meaning of the statute, the court
must look to the particular statutory language at issue, as well as
the language and design of the statute as a whole.” K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 291 (1988). In our view, the OPA’s text
and structure squarely foreclose the kind of oil-removal claim Sav-
age has advanced here.
I. The OPA Does Not Create a Cause of Action Against the
United States
We begin with the easier call: the OPA doesn’t create a cause
of action for oil spillers to seek contribution from the United States.
The OPA, recall, provides that “[a] person may bring a civil action
for contribution against any other person who is liable or poten-
tially liable under this Act or another law.” 33 U.S.C. § 2709. The
OPA defines “person” to include an “individual, corporation, part-
nership, association, State, municipality, commission, or political
subdivision of a State, or any interstate body.” Id. § 2701(27). As
we’ve said, the United States is conspicuously absent from this list.
Because the United States is not a “person” under the plain lan-
guage of the statute—and since the contribution provision allows
for contribution claims only against “any other person”—the OPA
doesn’t authorize Savage to seek contribution from the Govern-
ment. And this plain-text reading of the statute is further strength-
ened by “our longstanding interpretive presumption that ‘person’
does not include the sovereign,” Vt. Agency of Nat. Res. v. U.S. ex
rel. Stevens, 529 U.S. 765, 780 (2000), a presumption that’s at its
acme in cases like ours “where the statute imposes a burden or
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limitation, as distinguished from conferring a benefit or ad-
vantage,” on the sovereign, Wilson v. Omaha Indian Tribe, 442
U.S. 653, 667 (1979).
Pushing back, Savage argues that we should interpret the
word “State” to include the United States because those terms are
defined coextensively in the OPA. 6 Savage is right that the OPA
provides one definition for both terms. It says:
“United States” and “State” mean the several States of
the United States, the District of Columbia, the Com-
monwealth of Puerto Rico, Guam, American Samoa,
the United States Virgin Islands, the Commonwealth
of the Northern Marianas, and any other territory or
possession of the United States[.]
33 U.S.C. § 2701(36). But this definition doesn’t give us the answer
Savage is hoping for. Instead, it does little more than explain that
the “United States” and “States” are meant to include all U.S. prop-
erties—both those that are technically states and those that are just
territories or protectorates. So, for example, when the OPA defines
“onshore facility” to mean a facility on “any land within the United
6 Savage also points us to the fact that the OPA allows responsible parties to
pursue contribution actions against a “person” under “another law” and con-
tends that “[c]learly ‘another law’ includes the SAA.” Fair enough. But that
doesn’t answer the threshold question of whether the United States is a “per-
son” that can be sued under “another law.” It also fails to account for the
OPA’s “[n]otwithstanding” clause, 33 U.S.C. § 2702(a). See infra at Section
III.B.
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18 Opinion of the Court 21-10745
States,” that includes facilities in Puerto Rico. Id. § 2701(24). And,
when the OPA discusses “removal costs incurred by . . . a state,”
that includes losses incurred by Guam. Id. § 2702(b)(1). For several
reasons, though, it would strain language and logic to conclude
that, when Congress included “States” (but not “United States”)
within its definition of “person,” it actually meant both individual
states and the United States.
First, when Congress intended for a provision to apply to
both the states and the United States, it referred to each sepa-
rately—often pointing expressly to the “United States Govern-
ment.” See, e.g., id. § 2706(a) (“In the case of natural resource dam-
ages . . . , liability shall be-- (1) to the United States Government for
natural resources belonging to, managed by, controlled by, or ap-
pertaining to the United States [or] (2) to any State for natural re-
sources belonging to, managed by, controlled by, or appertaining
to such State[.]”); id. § 2712(f) (“Payment of any claim or obligation
by the Fund under this Act shall be subject to the United States
Government acquiring by subrogation all rights of the claimant or
State to recover from the responsible party.”). 7 Why would
7 See also, e.g., 33 U.S.C. § 2701(29) (“‘public vessel’ means a vessel owned or
bareboat chartered and operated by the United States, or by a State or political
subdivision thereof, or by a foreign nation, except when the vessel is engaged
in commerce”); id. § 2702(b)(1)(A) (“removal costs” include “all removal costs
incurred by the United States, a State, or an Indian tribe”); id. § 2702(b)(2)(A)
(“damages” include damages to natural resources, “which shall be recoverable
by a United States trustee, a State trustee, an Indian tribe trustee, or a foreign
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Congress have used the terms “United States” and “States” sepa-
rately if they meant the same thing? It wouldn’t have. Savage’s in-
terpretation collides head-on, then, with the surplusage canon,
which cautions courts to “avoid a reading that renders some words
altogether redundant.” READING LAW at 176; see also In Re Shek,
947 F.3d 770, 777 (11th Cir. 2020) (“This surplusage canon obliges
us, whenever possible, to disfavor an interpretation when that in-
terpretation would render a clause, sentence, or word superfluous,
void, or insignificant.” (cleaned up)).
Second, when Congress waived sovereign immunity in the
contribution provisions of other statutes, it did so much more ex-
plicitly. Take, for instance, the Comprehensive Environmental Re-
sponse, Compensation and Liability Act of 1980 (“CERCLA”)—a
strikingly similar statute with a modified strict-liability scheme for
(non-oil-related) hazardous spills. CERCLA, like the OPA, defines
“United States” and “State” together. See 42 U.S.C. § 9601(27)
(“The terms ‘United States’ and ‘State’ include the several States of
the United States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, American Samoa, the United States Virgin Is-
lands, the Commonwealth of the Northern Marianas, and any
other territory or possession over which the United States has
trustee”); id. § 2702(b)(2)(D) (“damages” include lost tax revenues, “which
shall be recoverable by the Government of the United States, a State, or a po-
litical subdivision thereof”); id. § 2704(c)(3) (the owner or operator of an Outer
Continental Shelf facility or vessel shall be liable for “all removal costs incurred
by the United States Government or any State or local official or agency”).
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20 Opinion of the Court 21-10745
jurisdiction.”). And, like the OPA, CERCLA provides that “[a]ny
person may seek contribution from any other person who is liable
or potentially liable.” Id. § 9613(f)(1) (emphasis added). But, unlike
the OPA, CERCLA plainly opens the United States up to liability in
contribution by defining a “person” as including both the United
States and the individual states. Id. § 9601(21) (“The term ‘person’
means an individual, firm, corporation, association, partnership,
consortium, joint venture, commercial entity, United States Gov-
ernment, State, municipality, commission, political subdivision of
a State, or any interstate body.” (emphasis added)). Given how sim-
ilar these two statutes (CERCLA and OPA) are, we think it ex-
tremely telling that, in the latter, Congress decided to delete the
United States from the OPA’s definition of “person[s]” who could
be sued.
And CERCLA’s not alone on this front. In crafting one pro-
vision of the Clean Water Act—housed in the same title of the
Code as the OPA—Congress provided that “any citizen may com-
mence a civil action on his own behalf . . . against any person . . .
including . . . the United States”—again, unambiguously waiving
its immunity with respect to civil actions. 33 U.S.C. § 1365(a). And
the Resource Conservation and Recovery Act (“RCRA”) says that
“any person may commence a civil action on his own behalf . . .
against any person, including the United States and any other gov-
ernmental instrumentality or agency.” 42 U.S.C. § 6972(a)(1)(B).
Congress, in short, knows how to waive sovereign immunity when
it wants to. And, unfortunately for Savage, it chose not to include
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21-10745 Opinion of the Court 21
these well-hashed sovereign-immunity waivers in the OPA. See
generally Pinares v. United Techs. Corp., 973 F.3d 1254, 1262 (11th
Cir. 2020) (“Where Congress knows how to say something but
chooses not to, its silence is controlling.” (quoting Animal Legal
Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1217 (11th Cir.
2015))).
Third, courts are “especially reluctant to read ‘person’ to
mean the sovereign where, as here, such a reading is ‘decidedly
awkward.’” Int’l Primate Prot. League v. Adm’rs of Tulane Educ.
Fund, 500 U.S. 72, 83 (1991) (quoting Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 64 (1989)). And there’s no two ways about it:
Savage’s proposal to treat the United States as a “person” would
lead to implausible results. For example, the OPA makes “[a]ny
person” who fails to comply with certain “financial responsibility”
requirements “liable to the United States for a civil penalty, not to
exceed $25,000 per day of violation.” 33 U.S.C. § 2617a(a). Savage’s
reading would thus make the United States liable to itself for civil
sanctions. Imagine for a moment what that would look like: with
the Environmental Torts Section of the Department of Justice
working both sides of the same case at the same time—both pros-
ecuting the United States for, and defending the United States
against, those civil penalties. Given everything we’ve said thus far,
there’s no reason to believe that Congress intended for such an
awkward result.
Fourth, in defining “person” under the OPA, Congress set
out a careful list of governmental entities: States, municipalities,
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22 Opinion of the Court 21-10745
political subdivisions of a State. 33 U.S.C. § 2701(27). But it didn’t
include the United States Government. The Supreme Court—in-
voking (though not by name) the canon of expressio unius est ex-
clusio alterius—held (in a similar context) that, “[w]hile both [stat-
utes at issue] define ‘person’ to cover States, subdivisions of States,
municipalities, and interstate bodies . . . , neither statute defines
‘person’ to include the United States. Its omission has to be seen as
a pointed one when so many other governmental entities are spec-
ified[.]” U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 617–18 (1992);
see also NORMAN SINGER & SHAMBIE SINGER, 2A SUTHERLAND
STATUTORY CONSTRUCTION § 47:23 (7th ed. updated Nov. 2021)
[hereinafter SUTHERLAND STATUTORY CONSTRUCTION] (“Expressio
unius instructs that, where a statute designates a form of conduct,
the manner of its performance and operation, and the persons and
things to which it refers, courts should infer that all omissions were
intentional exclusions.”).
The OPA, in short, doesn’t create a cause of action by which
oil spillers can seek contribution from the United States for oil-re-
moval costs.
II. The OPA Does Not Provide a Complete Defense to Liabil-
ity for Governmental Negligence
Nor does the OPA allow a responsible party to escape all li-
ability by pointing to the federal government’s negligence. As
we’ve noted, “courts have held that the enumerated defenses of
other strict liability schemes are exclusive and should be narrowly
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21-10745 Opinion of the Court 23
construed.” Tug Allie-B, 273 F.3d at 943 n.7 (collecting cases). The
OPA, recall, provides a complete defense to liability “if the respon-
sible party establishes, by a preponderance of the evidence, that the
discharge . . . of oil and the resulting damages or removal costs
were caused solely by . . . (1) an act of God; (2) an act of war; (3) an
act or omission of a third party . . . ; or (4) any combination of par-
agraphs (1), (2), and (3).” 33 U.S.C. § 2703(a).
As this list makes pellucid, there’s no explicit defense for neg-
ligence on the part of the federal government. And, while the OPA
does reference “an act or omission of a third party,” we simply can-
not construe this exception to strict liability as including the United
States. Why? Because a third party is a “party or person besides the
two primarily concerned, as in a law case or the like.” Third Party,
OXFORD ENGLISH DICTIONARY, https://www.oed.com/view/En-
try/200849?redirectedFrom=third+party#eid (last visited Feb. 7,
2022); see also Third Party, BLACK’S LAW DICTIONARY (11th ed.
2019) (defining “third party” as “someone other than the principal
parties”). Looking at the OPA’s design, it’d be hard to conclude that
the first and second parties are anyone other than the responsible
party (on the one hand) and the United States (on the other). The
OPA, after all, divvies up—amongst those two “principal” par-
ties—the liability for an oil spill, the responsibility for remedying
an oil spill, and the authority for directing oil-spill cleanups.
And we’re not alone in saying so. In In re Glacier Bay, 71
F.3d 1447 (9th Cir. 1995), the Ninth Circuit tackled a massive oil-
spill action that had been brought under the FWPCA, the OPA’s
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24 Opinion of the Court 21-10745
predecessor. That statute, in detailing a spiller’s rights against those
“who caused or contributed to [the] discharge,” provided that
“[t]he liabilities established by this section shall in no way affect any
rights which . . . the owner or operator of a vessel . . . may have
against any third party whose acts may in any way have caused or
contributed to such discharge.” 33 U.S.C. § 1321(h) (emphasis
added). And, like Savage, the owner of the oil tanker there con-
tended “that the term ‘third party’ . . . may include the United
States government.” Glacier Bay, 71 F.3d at 1455. The Ninth Cir-
cuit made quick work of this argument:
We cannot reconcile [the spiller’s] reading with the
structure of the statute. Read as a whole, [the
FWPCA] sets out the rights and responsibilities of dis-
charging vessel owners and the United States govern-
ment vis-a-vis each other. These are the parties of the
first and second parts. The term “third party” is used
to refer [to] parties other than these two[.]
Id. We reach the same conclusion here.
The OPA’s amendments to the FWPCA only further sup-
port our view that Congress removed governmental negligence as
a complete defense to liability. As we’ve said, the FWPCA ex-
pressly allowed vessel owners to recover reasonable oil-removal
costs from the United States if the “discharge was caused solely by
(A) an act of God, (B) an act of war, (C) negligence on the part of
the United States Government, or (D) an act or omission of a third
party without regard to whether such act or omission was or was
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21-10745 Opinion of the Court 25
not negligent, or of any combination of the foregoing causes.” 33
U.S.C. § 1321(i) (emphasis added). The OPA—as the Government
points out—reduced these complete defenses from four to three,
eliminating the defense for “negligence on the part of the United
States Government.” Id. § 2703(a). The ineluctable inference we
draw from this deletion is that Congress intentionally eliminated
the erstwhile defense for governmental negligence.
Nonplussed, Savage argues that, even as Congress was re-
moving the governmental-negligence defense, it tacitly (and simul-
taneously) restored that defense by transforming the United States
into a “third party” under the third-party-defense clause. But there
are several problems with this theory. For one thing, it violates the
surplusage canon by needlessly forcing us to suppose that the
FWPCA’s governmental-negligence defense is (and long has been)
redundant given the availability of the third-party defense. Cf. Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669 (2007)
(“[W]e have cautioned against reading a text in a way that makes
part of it redundant.”). For another, when “Congress acts to amend
a statute, we presume it intends its amendment to have real and
substantial effect.” Husky Int’l Elecs., Inc. v. Ritz, 578 U.S. 356,
359–60 (2016) (quoting United States v. Quality Stores, Inc., 572
U.S. 141, 148 (2014)); see also READING LAW at 256 (“If the legisla-
ture amends or reenacts a provision . . . , a significant change in
language is presumed to entail a change in meaning.”). Savage,
though, would have us conclude that, when Congress eliminated
“negligence on the part of the United States Government” as a
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26 Opinion of the Court 21-10745
defense, it never (actually) eliminated the governmental-negli-
gence defense. In fact, Savage would have us believe that Con-
gress’s amendment did nothing at all. That can’t be right. A third
problem with Savage’s construction is that it flouts the dispositive
English-usage problems the Ninth Circuit identified almost thirty
years ago. See In re Glacier, 71 F.3d at 1455 (observing that “dis-
charging vessel owners and the United States government . . . are
the parties of the first and second parts” and that, as a result, “third
party” could not refer to the United States).
For all these reasons, we conclude that the OPA includes no
complete defense for governmental negligence.
III. The OPA is Exclusive
So where does that leave us? The SAA “broadly waives the
Government’s sovereign immunity” for admiralty claims. Hender-
son v. United States, 517 U.S. 654, 656 (1996); see also Kasprik v.
United States, 87 F.3d 462, 465 (11th Cir. 1996) (“The SAA does not
provide a cause of action against the United States but rather con-
stitutes the United States’ limited waiver of sovereign immunity
with respect to admiralty suits.”). And the OPA, as we’ve now
learned, is a specific statute that governs liability for oil-spill
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21-10745 Opinion of the Court 27
removals and which does not create a right of action for suits
against the United States. 8 But that’s really only half the problem.
The heart of the parties’ disagreement lies here—on this
question: is the OPA exclusive? Savage maintains that, even if the
OPA may not itself contain a waiver of sovereign immunity, vessel
owners may still go after the United States for removal costs and
damages by bringing common-law admiralty claims against the
Government pursuant to the SAA’s sovereign-immunity waiver.
The Government, for its part, contends that the OPA provides a
comprehensive—and exclusive—remedy for oil-spill-removal
claims, displacing any cause of action Savage could’ve brought un-
der the common law (or the SAA). We think the Government has
the better side of this argument.
A. A Detailed Statute Preempts General Remedies
As an initial matter, our analysis is governed by “the well-
established principle that, in most contexts, ‘a precisely drawn, de-
tailed statute pre-empts more general remedies.’” Hinck v. United
States, 550 U.S. 501, 506 (2007) (quoting EC Term of Years Tr. v.
8 We’d note, by the way, that the only courts to have considered this ques-
tion—whether the Government waived its sovereign immunity under the
OPA—have agreed that the OPA contains no such waiver. See Rick Franklin
Corp. v. U.S. Dep’t of Homeland Sec., 2008 WL 337978, at *3 (D. Or. Feb. 4,
2008) (“The OPA does not contain a waiver of the government’s sovereign
immunity from suit.”); Int’l Marine Carriers v. Oil Spill Liab. Tr. Fund, 903 F.
Supp. 1097, 1102 (S.D. Tex. 1994) (“Nothing in OPA section[s] 2712, 2713, or
2715 can be construed as a waiver of sovereign immunity.”).
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28 Opinion of the Court 21-10745
United States, 550 U.S. 429, 433 (2007)). The Supreme Court has
held, for instance, that “whe[re] Congress enacts a specific remedy
. . . when previous remedies were ‘problematic,’ the remedy pro-
vided is generally regarded as exclusive.” Id. (quoting Block v. N.D.
ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 285 (1983)). And
that makes sense: when the legislature has attacked a specific prob-
lem—and crafted a detailed and precise remedy to address that
problem—we should generally assume that the law represents
Congress’s considered and exclusive judgment on that issue.
Imagine a local municipality that promulgates two ordi-
nances. The first provides a cause of action for trespass against any
person who encroaches on private land. The second provides a
cause of action for trespass against any police officer and outlines a
limited set of circumstances in which the cause of action may be
asserted—e.g., only when the officer was operating outside of his
jurisdiction, was off duty, or was acting in violation of constitu-
tional constraints. We think it beyond peradventure to say that a
plaintiff in our city looking to sue a police officer for trespass could
assert a claim only under the latter (more specific) ordinance—and
not under the general trespass law. Otherwise, what purpose
would the second ordinance serve?
And that’s pretty much what happened here. In 1990, Con-
gress enacted a detailed—and precisely drawn—statute that gov-
erned almost every aspect of an oil-spill cleanup. As we’ve ex-
plained, the OPA assigns initial liability to the vessel owner, 33
U.S.C. § 2702; places caps on—and offers complete defenses to—
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21-10745 Opinion of the Court 29
that liability for parties who act responsibly, id. §§ 2703, 2704; out-
lines the contours of available contribution claims, id. § 2709; cre-
ates an industry-financed Fund to limit the burden on taxpayers, id.
§ 2712; and assigns jurisdiction, venue, and time limitations for
claims arising under the statute, id. § 2717. Congress didn’t draw
up this carefully balanced design—a veritable super-structure of oil-
cleanup rights, duties, and obligations—for no reason. It did it to
strike the right incentives within the oil industry itself—incentives
the previous regime had, in Congress’s estimation, failed to drive
home. This detailed scheme thus preempts the general oil-removal
remedies that might’ve been available under either the common
law or the SAA.
In similar circumstances, courts have routinely reached this
same conclusion. Take United States v. Bormes, 568 U.S. 6 (2012),
for instance. There, the plaintiff sued the government under the
Fair Credit Reporting Act. In doing so, the plaintiff attempted to
invoke a waiver of sovereign immunity from a different statute, the
Little Tucker Act. The Little Tucker Act, like the SAA, doesn’t cre-
ate a cause of action against the federal government—but only
waives sovereign immunity for certain “claim[s] against the United
States, not exceeding $10,000.” 28 U.S.C. § 1346(a)(2). Given the
comprehensiveness of the FCRA’s remedial scheme, the Supreme
Court refused to allow the plaintiff to sue the United States. In this
way, it recognized—as we do—that “a precisely drawn, detailed
statute pre-empts more general remedies.” Bormes, 568 U.S. at 12–
13. It then found that the FCRA created just such a “detailed
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30 Opinion of the Court 21-10745
remedial scheme” because its provisions “set out a carefully cir-
cumscribed, time-limited, plaintiff-specific cause of action,” “pre-
cisely define the appropriate forum,” prescribe “a specified limita-
tions period,” and vest “jurisdiction” in certain courts. Id. at 15(cleaned up). It concluded:
[O]ur precedents collectively stand for a more basic
proposition: Where a specific statutory scheme pro-
vides the accoutrements of a judicial action, the metes
and bounds of the liability Congress intended to cre-
ate can only be divined from the text of the statute
itself. . . . Since FCRA is a detailed remedial scheme,
only its own text can determine whether the damages
liability Congress crafted extends to the Federal Gov-
ernment. To hold otherwise—to permit plaintiffs to
remedy the absence of a waiver of sovereign immun-
ity in specific, detailed statutes by pleading general
Tucker Act jurisdiction—would transform the sover-
eign-immunity landscape.
Id. at 14–15.
Our case is just the same. The OPA is a “detailed remedial
scheme” that “provides the accoutrements of a judicial action.” It
carefully balances (and neatly circumscribes) liability for oil-re-
moval claims. See generally 33 U.S.C. §§ 2702, 2703, 2704, 2709. It
mandates time limits for bringing covered claims under the statute.
Id. § 2717(f) (prescribing a three-year statute of limitations for “an
action for damages under this Act,” “[a]n action for recovery of
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21-10745 Opinion of the Court 31
removal costs,” an “action for contribution for any removal costs
or damages,” and an “action based on rights subrogated pursuant
to this Act”). It precisely defines the forum in which any such action
must be brought, noting that “[v]enue shall lie in any district in
which the discharge or injury or damages occurred, or in which the
defendant resides, may be found, has its principal office, or has ap-
pointed an agent for service of process.” Id. § 2717(b). And it lists
the courts that may lawfully exercise subject-matter jurisdiction
over its claims, providing (for instance) that “the United States dis-
trict courts shall have exclusive original jurisdiction over all contro-
versies arising under this Act, without regard to the citizenship of
the parties or the amount in controversy.” Id. Like the statute at
issue in Bormes, then, the OPA is a “detailed remedial scheme” that
constitutes the exclusive source of liability for oil-removal claims.
Whether oil-spill liability extends to the federal government, in
other words, must be determined by the OPA’s own text. 9
9 There is, it’s true, one difference between our case and Bormes—one neither
party seems to notice. In Bormes, the plaintiff brought his case under the
FCRA and attempted to “mix and match” its FCRA cause of action with the
Little Tucker Act’s sovereign-immunity waiver. Our Plaintiff, by contrast,
doesn’t assert any claim under the OPA. Instead, it advances a claim under
federal maritime law and relies on the SAA for its waiver of sovereign immun-
ity—something it unquestionably can do as a general matter. This, though, is
a difference without much significance—at least for our purposes. That’s be-
cause Bormes turned on the longstanding (and broader) rule that a precisely
drawn and detailed statutory scheme preempts an older, more-general set of
remedies. And that’s exactly what happened in our case: once the precisely
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32 Opinion of the Court 21-10745
Or take the Supreme Court’s decision in Brown v. General
Services Administration, 425 U.S. 820 (1976). That case required
the Court to decide whether Title VII of the Civil Rights Act of
1964 “provides the exclusive judicial remedy for claims of discrim-
ination in federal employment.” Id. at 821. After a deep-dive into
the law and its history, the Court determined that the “structure of
the [statute] fully confirms the conclusion that Congress intended
it to be exclusive and pre-emptive.” Id. at 829. In reaching this re-
sult, the Court pointed to the “balance, completeness, and struc-
tural integrity” of the statutory scheme and noted that the law
“proscribes federal employment discrimination and establishes an
administrative and judicial enforcement system,” which includes—
for instance—“certain preconditions” (like EEOC exhaustion). Id.
at 832.
The OPA does all of those things. As we’ve said, it prescribes
where to sue and when. 33 U.S.C. § 2717. But it does much more
than that: It sets out a detailed “[c]laims procedure” that governs
actions against responsible parties, requiring that (other than in
limited circumstances) “all claims for removal costs or damages
shall be presented first to the responsible party” before the claimant
can present its claim in court or to the Fund in a manner approved
by the President. Id. § 2713(a), (e); see generally 33 C.F.R. § 136.105(setting out the “[g]eneral requirements for a claim” under the
drawn—and detailed—OPA came into being, plaintiffs like Savage could no
longer invoke general maritime law (in conjunction with the SAA) to create a
cause of action for oil-removal costs against the federal government.
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21-10745 Opinion of the Court 33
OPA). On Savage’s view, however, a claimant can avoid all of these
steps by simply asserting its claims under general admiralty law in
federal court. To quote the Supreme Court: “[i]t would require the
suspension of disbelief to ascribe to Congress the design to allow
its careful and thorough remedial scheme to be circumvented by
artful pleading.” Brown, 425 U.S. at 833.
B. The “Notwithstanding” Clause
The OPA’s text—always a good place to start and end—like-
wise suggests that the law’s remedial scheme is exclusive. Cf.
READING LAW at 56 (“The words of a governing text are of para-
mount concern, and what they convey, in their context, is what the
text means.”). In assigning liability, the very first (substantive) pro-
vision of the OPA says:
Notwithstanding any other provision or rule of law,
and subject to the provisions of this Act, each respon-
sible party for a vessel or a facility from which oil is
discharged, or which poses the substantial threat of a
discharge of oil, into or upon the navigable waters or
adjoining shorelines or the exclusive economic zone
is liable for the removal costs and damages specified
in subsection (b) that result from such incident.
33 U.S.C. § 2702(a). We’ve previously held that a “notwithstand-
ing” clause is “Congress’s indication that the statute containing that
language is intended to take precedence over any preexisting or
subsequently-enacted legislation on the same subject.”
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34 Opinion of the Court 21-10745
Miccosukee, 619 F.3d at 1298 (cleaned up) (quoting Castro v. Sec’y
of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006)). 10 Of
course, such a clause “must be read in the context of the entire stat-
ute.” Id. at 1300. But, for all the reasons we’ve outlined, we think
that context—from the detailed remedial scheme, to the specific
attention to oil removal, to the problems Congress intended to
fix—supports our reading of the OPA’s exclusivity.
Savage disagrees. In its view, the OPA’s “savings” clause
leaves available to responsible parties certain alternative causes of
action, not found in the OPA—like, for instance, the common-law
maritime claims Savage has advanced here. The OPA’s savings
clause is fairly straightforward. It reads: “Except as otherwise pro-
vided in this Act, this Act does not affect . . . admiralty and maritime
law.” 33 U.S.C. § 2751(e). Relying on dicta from a district-court de-
cision in Louisiana, Savage contends that, through the OPA’s sav-
ings clause, Congress intended to “preserve[] existing maritime law
except where OPA contains a specific provision to the contrary.”
In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex., on
Apr. 20, 2010, 496 F. Supp. 3d 989, 1001 (E.D. La. 2020). The Deep-
water Horizon Court reached this conclusion (which it notably
10 It’s worth focusing on that language for a moment. The OPA says that a
responsible party “is liable for the removal costs and damages” provided for
under the Act, “[n]otwithstanding any other provision or rule of law, and sub-
ject to the provisions of this Act[.]” 33 U.S.C. § 2702(a). If Savage could escape
liability under another “provision or rule of law,” see supra at note 6, this lan-
guage would be reduced to meaning nothing at all. We don’t read statutes that
way.
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21-10745 Opinion of the Court 35
described as “dicta” and characterized as “not part of the Court’s
holding”) by relying on a congressional Conference Report, in
which the Conference Committee had described the savings clause
to mean that “there is no change in current law unless there is a
specific provision to the contrary.” Id. at 1000 (emphasis added)
(quoting H.R. REP. NO. 101-653 (1990) (Conf. Rep.)).
There are a few things to say about this. First, “legislative
history is not the law,” and “even those of us who believe that clear
legislative history can illuminate ambiguous text won’t allow am-
biguous legislative history to muddy clear statutory language.”
Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 (2019) (cleaned
up); see also Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994)
(“There are, we recognize, contrary indications in the statute’s leg-
islative history. But we do not resort to legislative history to cloud
a statutory text that is clear.”); Harris v. Garner, 216 F.3d 970, 976
(11th Cir. 2000) (en banc) (“When the import of the words Con-
gress has used is clear, as it is here, we need not resort to legislative
history, and we certainly should not do so to undermine the plain
meaning of the statutory language.”); Alexander Hamilton, Final
Version of an Opinion on the Constitutionality of an Act to Estab-
lish a Bank, in 8 THE PAPERS OF ALEXANDER HAMILTON 97, 111
(Harold C. Syrett ed., 1965) (Feb. 23, 1791) (“[W]hatever may have
been the intention of the framers of a constitution, or of a law, that
intention is to be sought for in the instrument itself[.]”).
Second, the text of the OPA is unambiguous. After all, “ex-
cept as otherwise provided” does not mean, as the Deepwater
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36 Opinion of the Court 21-10745
Horizon Court supposed, “except as specifically provided other-
wise” (whatever that might mean). And the fact is that the OPA has
“provided otherwise.” The OPA is a detailed and comprehensive
framework for apportioning oil-spill liability. Through its many
parts, Congress chose not to afford vessel owners any cause of ac-
tion against the United States. Quite the contrary: It eliminated, as
we’ve said, a provision—present in the OPA’s predecessor stat-
ute—that would’ve allowed vessel owners to skirt liability in the
case of governmental negligence. And it strayed from similar stat-
utory schemes (like CERCLA and RCRA) that expressly allow for
contribution claims against the federal government. The plain im-
port of these unambiguous decisions, then, is that Congress has
provided otherwise—by making clear that the Government is not
liable for oil-removal costs. And at least one of our sister circuits
has adopted this commonsense interpretation of the law—viz., that
the OPA’s savings clause “shows that the admiralty claims that are
preserved are those that are not addressed in the OPA.” In re
Settoon Towing, L.L.C., 859 F.3d 340, 351 (5th Cir. 2017).
An everyday example might help us clarify this point. Your
friend, who’s organizing a picnic, sends a group of people some
rules, including this one: “Except as otherwise provided in this text
message string, you can bring a sandwich to the picnic.” Just before
the picnic, your friend texts the group a second rule: “You can bring
a turkey bacon sandwich if it has lettuce, tomatoes, and onions.” If
you arrive at the picnic with a turkey bacon sandwich that has
nothing on it—i.e., no lettuce, tomatoes, and onions—have you
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21-10745 Opinion of the Court 37
violated your friend’s rules? Under the tenets of ordinary English
usage, it would sure seem so. And the same common English usage
dictates the result here. Our statute says (in effect): “You can assert
a contribution claim if you bring it against a ‘person.’” If you bring
a contribution claim against not a person—against the United
States, for example—you’ve violated the obvious import of the
statute. Cf. READING LAW at 107 (“When a car dealer promises a
low financing rate to ‘purchasers with good credit,’ it is entirely
clear that the rate is not available to purchasers with spotty
credit.”).
C. Other Circuits
While the interplay between the OPA and the SAA presents
an issue of first impression across the federal courts, we’re not
painting on a blank canvas. That’s because our sister circuits have
universally concluded that the OPA embodies the exclusive rem-
edy for oil-removal claims that fall within the statute’s ambit. In
United States v. American Commercial Lines, L.L.C., 759 F.3d 420(5th Cir. 2014), for example, the Fifth Circuit held that the OPA’s
“balanced and comprehensive remedial scheme provides the exclu-
sive remedy for a claimant to recover statutory removal costs from
a responsible party.” Id. at 425. Why? Because, “when Congress en-
acts a carefully calibrated liability scheme with respect to specific
remedies, ‘the structure of the remedies suggests that Congress in-
tended for the statutory remedies to be exclusive.’” Id. at 424 (quot-
ing United States v. M/V BIG SAM, 681 F.2d 432, 441 (5th Cir.
1982)). The OPA meets each of those criteria.
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38 Opinion of the Court 21-10745
Nor is the Fifth Circuit alone in saying so. See S. Port Ma-
rine, LLC v. Gulf Oil Ltd. P’ship, 234 F.3d 58 (1st Cir. 2000). In
South Port Marine, the First Circuit embarked on “a straightfor-
ward inquiry into whether Congress intended the enactment of the
OPA to supplant the existing general admiralty and maritime law,
which allowed punitive damages under certain circumstances in
the area of oil pollution” and “conclude[d] that Congress did so in-
tend.” Id. at 65; see also id. (“Congress intended the OPA to be the
exclusive federal law governing oil spills[.]” (cleaned up)). Starting
with “the text of the statute itself,” the court found that the
“scheme is comprehensive.” Id. “We think,” it said, “that the OPA
embodies Congress’s attempt to balance the various concerns at
issue, and trust that the resolution of these difficult policy questions
is better suited to the political mechanisms of the legislature than
to our deliberative process.” Id. at 66. We agree and thus reject Sav-
age’s attempt to have us disturb the comprehensive scheme Con-
gress created—and to tip the careful balance Congress designed.
See also Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131,
139 (1st Cir. 2017) (“[W]e acknowledged in South Port Marine that
the OPA supplants general admiralty and maritime law when the
OPA is triggered[.]”).
And those decisions are just the tip of the iceberg. Long be-
fore the OPA was on anyone’s radar, courts—including the Su-
preme Court—had held that the FWPCA (the OPA’s predecessor)
constituted the exclusive remedy for removal costs and damages.
In the Supreme Court’s words:
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21-10745 Opinion of the Court 39
Congress’ intent in enacting the [FWPCA] was clearly
to establish an all-encompassing program of water
pollution regulation. Every point source discharge is
prohibited unless covered by a permit, which directly
subjects the discharger to the administrative appa-
ratus established by Congress to achieve its goals. The
“major purpose” of the [FWPCA] was “to establish
a comprehensive long-range policy for the elimina-
tion of water pollution.” S. REP. NO. 92-414, at 95. No
Congressman’s remarks on the legislation were com-
plete without reference to the “comprehensive” na-
ture of the [FWPCA].
City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 318 (1981)
(holding that the FWPCA displaced a common-law nuisance
claim);11 see also, e.g., United States v. Dixie Carriers, Inc., 627 F.2d
11 To the extent it matters, that same legislative history—emphasizing the
comprehensiveness of the legislation—dominates the OPA. See, e.g., S. REP.
NO. 101-94 (stating that the OPA “builds upon section 311 of the Clean Water
Act to create a single Federal law providing cleanup authority, penalties, and
liability for oil pollution” (emphasis added)); H.R. REP. NO. 101-242, pt. 2, at
31 (“The purpose of this legislation is to establish a comprehensive system of
liability and compensation for damages caused by oil pollution[.]”); 135 CONG.
REC. S9690 (daily ed. Aug. 3, 1989) (statement of Sen. Baucus) (referring to
“[t]his comprehensive bill”); 135 CONG. REC. H7894 (daily ed. Nov. 1, 1989)
(statement of Rep. Quillen) (calling the OPA a “much needed comprehensive
oilspill bill”); 136 CONG. REC. S11536 (daily ed. Aug. 2, 1990) (statement of Sen.
Mitchell) (“As the author of the Senate bill, I am pleased we are finally enacting
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40 Opinion of the Court 21-10745
736, 737 (5th Cir. 1980) (“[W]e conclude that Congress intended for
the Federal Water Pollution Control Act (FWPCA) to provide the
exclusive legal remedy for the government to recover its oil spill
cleanup costs[.]”); Steuart Transp. Co. v. Allied Towing Corp., 596
F.2d 609, 618 (4th Cir. 1979) (“We therefore conclude that [the
FWPCA] was designed to replace, rather than to supplement, the
judicial remedies developed in the absence of a comprehensive stat-
ute. Since the judicial remedies are inconsistent with the statute,
the statute provides the sole means for the federal government to
recover oil removal costs.”). 12
a tough, comprehensive bill.”); cf. Patrick Nash, The Adequacy of the Oil Pol-
lution Act’s Compensation Scheme in the Case of a Catastrophic Oil Spill, 7 J.
MIN. L. & POL’Y 105, 108 (1991) (“As was the case with the floor debate for
FWPCA, the floor debate regarding OPA was replete with redundant excla-
mations of ‘comprehensive[ness].’”).
12 Savage insists that the Supreme Court’s decision in Exxon Shipping
Co. v. Baker, 554 U.S. 471 (2008), suggests otherwise. There, the Court held
that the “[FWPCA]’s penalties for water pollution . . . [do not] preempt the
common law punitive-damages remedies at issue here.” Id. at 488. For three
reasons, Baker is inapposite.
First, the FWPCA addressed the “actual costs incurred . . . for the re-
moval of such oil or substance by the United States Government.” 33 U.S.C. §
1321(f) (1998). But it didn’t address the punitive-damages remedies the Court
refused to strike down in Baker. The OPA, by contrast, governs the very sort
of costs Savage incurred in this case—including, for instance, “all removal
costs,” “[d]amages for injury to . . . natural resources,” “[d]amages for injury
to . . . real or personal property,” and “[d]amages for loss of subsistence use of
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21-10745 Opinion of the Court 41
And, as the Supreme Court has explained, “Congress is pre-
sumed to be aware of an administrative or judicial interpretation
of a statute and to adopt that interpretation when it re-enacts a stat-
ute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978); see
also Keene Corp. v. United States, 508 U.S. 200, 212 (1993) (“[W]e
apply the presumption that Congress was aware of these earlier ju-
dicial interpretations and, in effect, adopted them.”). We can as-
sume, in other words, that, when it enacted the OPA in 1990, Con-
gress knew that courts—including the U.S. Supreme Court—had
routinely interpreted the FWPCA as providing the exclusive
natural resources.” 33 U.S.C. § 2702(b). As to the kinds of damages it actually
covers, in other words, the OPA is exclusive.
Second, Baker noted that the FWPCA has a “saving clause reserving
‘obligations . . . under any provision of law for damages to any publicly owned
or privately owned property resulting from a discharge of any oil.’” Baker, 554
U.S. at 488 (quoting 33 U.S.C. § 1321(o)). But our savings clause is materially
different because it doesn’t broadly reserve pre-existing property claims. In-
stead, it prefaces any “savings” with the crucial phrase: “[e]xcept as otherwise
provided in this Act,” 33 U.S.C. § 2751(e)—a phrase that didn’t appear in the
FWPCA. And, as we’ve said, Congress has provided otherwise in the OPA by
foreclosing any oil-removal claims against the Government.
Third, as Baker rightly observed, it’s “hard to conclude that a statute
expressly geared to protecting ‘water,’ ‘shorelines,’ and ‘natural resources’ was
intended to eliminate sub silentio oil companies’ common law duties to refrain
from injuring the bodies and livelihoods of private individuals.” Baker, 554
U.S. at 488–89. Here, the equities are just the reverse: it’d be hard to conclude
that a statute geared to shifting oil-pollution costs from the taxpayer to the oil
industry would allow the oil industry to turn around and recover those same
costs from the taxpayer. Baker, in short, is neither here nor there.
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42 Opinion of the Court 21-10745
remedy for removal costs. If Congress thought these interpreta-
tions were wrong, it could’ve easily corrected the error by making
clear that the OPA was not to be similarly construed. But it didn’t—
precisely because Congress agreed, as we do, that the OPA (like the
FWPCA before it) provides the exclusive remedy for oil-removal
costs.
D. Policy
Still resisting, Savage says that it would be unfair “to protect
the Government from the consequences of its decisions when act-
ing . . . as a tortfeasor that causes millions of dollars of property
damage and environmental cleanup costs.” Two thoughts on this.
First, it simply isn’t our place to second-guess the legislature’s fair-
ness determinations or to supplant its considered judgment with
our own. See Mamani v. Berzain, 825 F.3d 1304, 1310 (11th Cir.
2016) (“[U]nless and until the first and third branches of govern-
ment swap duties and responsibilities, we cannot rewrite stat-
utes.”). Second, there’s plenty of reason to believe that the first
branch did hope to narrowly tailor the taxpayer’s burden in the
event of an oil spill. The OPA, after all, puts the vessel owner first
in line to pay any removal costs. 33 U.S.C. § 2702. It also employs
a Fund—financed largely by taxes and penalties on the oil indus-
try—to cover, among other things, excess costs and damages. Id. §
2712. And it raised the limits on oil-spill liability. Id. § 2704. To the
extent we can divine some congressional purpose from these deci-
sions, it would appear that one (primary) purpose was to force the
oil industry to internalize the negative externalities of its business—
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21-10745 Opinion of the Court 43
i.e., to incentivize the oil industry to avoid financially and environ-
mentally costly oil spills in the first instance.
Relying on legislative history, Savage maintains that the
OPA was not meant to permanently shift liability from the Gov-
ernment to a vessel owner—but simply (in Savage’s words) to
“close[] a loophole in the patchwork of predecessor statutes
whereby the owner of a vessel leaking oil could deny liability long
enough to force the Government to coordinate and fund the emer-
gency response to a fast-expanding environmental disaster[.]” As
we’ve said, however, we needn’t wade into the murky waters of
the statute’s legislative history because “a law is the best expositor
of itself.” Pennington v. Coxe, 6 U.S. 33, 52 (1804) (Marshall, C.J.).13
And, through the OPA, Congress exposited itself rather clearly.
13 Even if we were to accept Savage’s invitation, we think that history
may well tell a different story. Congress enacted the OPA in the wake of “[t]he
11-million gallon spill from the Exxon Valdez in Prince William Sound, Alaska,
and the three spills within a 24-hour period just months later in the coastal
waters of Rhode Island, the Delaware River and the Houston Ship Channel.”
S. REP. NO. 101-94, at 2. Congress concluded that those “four major oil spills
within a three-month period suggest that spills are still too much of an ac-
cepted cost of doing business for the oil shipping industry” and that “the costs
of spilling and paying for its clean-up and damage is not high enough to en-
courage greater industry efforts to prevent spills and develop effective tech-
niques to contain them.” Id. at 3. “Sound public policy,” Congress made clear,
“requires reversal of these relative costs.” Id.
And the then-extant federal laws weren’t doing the trick. The Senate
Report noted that, “[b]etween 1971 and 1982 the United States Government
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44 Opinion of the Court 21-10745
IV. Implied Repeal
Which takes us back to where we started. Savage sees this
case through the lens of the repeal-by-implication doctrine, which
instructs that “[c]ourts must first ‘assiduously attempt’ to try to
construe two statutes in harmony before concluding that one im-
pliedly repeals the other.” Miccosukee, 619 F.3d at 1299 (quoting
Tug Allie-B, 273 F.3d at 952 (Black, J., concurring)).
We very much doubt that this implied-repeal lens is the right
way to view our case. The Supreme Court has recognized that “the
expectation that there would be some expression of an intent to
‘repeal’ is particularly strong in a case . . . in which the ‘repeal’
would extend to virtually every case to which the statute had ap-
plication.” United States v. United Cont’l Tuna Corp., 425 U.S. 164,
169 (1976). But the converse is also true: when a highly specific stat-
ute narrowly displaces a general one, it’s not at all clear that the
presumption against implied repeal applies. See Harris v. Owens,
obligated $124 million from the Clean Water Act’s section 311(k) revolving
fund, but recovered only $49 million from spillers, for a total expenditure of
$75 million in national funds.” Id. The Report also signaled Congress’s intent
to move away from “taxpayer subsidies to cover cleanup costs” and towards
“internaliz[ing] those costs within the oil industry and its transportation sec-
tor.” Id. at 2. By shifting the burden of cleanup costs onto the oil industry—
and by precluding the oil industry from seeking contribution payments from
the Government (read: taxpayers)—the OPA seems to further, rather than to
frustrate, each of these objectives.
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21-10745 Opinion of the Court 45
264 F.3d 1282, 1296 (10th Cir. 2001) (“The later statute simply ad-
dresses one particular application and carves out an exception. We
see no repeal-by-implication problem.”); see also 1A SUTHERLAND
STATUTORY CONSTRUCTION § 23:16 (“Where a later special or local
statute is not irreconcilable with a general statute to the degree that
both statutes cannot have a coincident operation, the general stat-
ute is not repealed, and the special or local statute exists as an ex-
ception to its terms.”); READING LAW at 183 (explaining that, under
the general/specific canon, “the specific provision is treated as an
exception to the general rule”). The reasoning behind this interpre-
tive canon is sound: When Congress undermines an entire statute,
we tend to view that statute as repealed, and we generally expect
Congress to say that it intended so drastic a result. But when the
legislature merely carves out a narrow exception to an old provi-
sion by addressing a discrete sub-issue in the original statute—
think: a law specifically targeting the Carolina northern flying
squirrel against the backdrop of the Endangered Species Act—it’s
not at all clear that the legislature is repealing anything. And, in this
circumstance at least, we wouldn’t necessarily expect Congress to
say that it was. 14
14 Here’s a hypothetical to bring this point home. Imagine a scenario in which
Congress repealed the OPA tomorrow—thus ridding the U.S. Code of the
OPA’s detailed (and exclusive) framework for oil-removal claims. Wouldn’t
vessel owners (like Savage) then be able to bring common-law oil-removal
claims against the United States under the SAA’s general provisions? We don’t
see why not. And, if that’s right, then it seems clear that Congress didn’t repeal
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46 Opinion of the Court 21-10745
The OPA is a lot like the Carolina-northern-flying-squirrel
statute we just invented—and the SAA serves as a useful substitute
for the Endangered Species Act. For starters, the SAA broadly ap-
plies to admiralty claims against the Government. It governs, for
instance, when a passenger on a “boat [is] swept over a dam” and
injured due to the “failure of the Corps of Engineers to post
properly located signs warning water craft of the dam.” Beeler v.
United States, 338 F.2d 687, 688 (3d Cir. 1964). Or when a “long-
shoreman” falls through the “pad-eye” of a public vessel. Grillea v.
United States, 232 F.2d 919, 922 (2d Cir. 1956) (Hand, J.). Or when
someone “tubing on the Missouri River . . . alide[s] with a sub-
merged buoy placed in the river by the United States Coast Guard.”
Harrell v. United States, 443 F.3d 1231, 1234 (10th Cir. 2006)
(cleaned up). Or when a “seaman” for the Coast Guard returns to
a drydock late at night and—“in the condition for which seamen
are famed”—turns some valves and sinks the drydock. Ira S.
Bushey & Sons, Inc. v. United States, 398 F.2d 167, 169 (2d Cir.
1968) (Friendly, J.). Or any of the other countless claims that might
arise on the sea. 15 The OPA, covering a mere subset of admiralty
any part of the SAA when it promulgated the OPA—because, if it had, there’d
be no SAA to revert to once the OPA was erased. Cf. READING LAW at 334
(“When a statute is repealed, it falls irretrievably into oblivion. It is not half-
buried in expectation of resurrection. Hence a repeal of a repealer does not
revivify the statutory corpse.”).
15 Including, by the way, cases just like ours. The Government doesn’t disa-
gree, remember, that Savage can pursue its common-law claim against the
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21-10745 Opinion of the Court 47
claims—viz., those involving oil-spill liability—addresses only a
small piece of that much larger maritime mosaic. Far from repeal-
ing the SAA, then, the OPA simply carves out a narrow exception
that governs only one of the SAA’s many applications. We thus
wouldn’t really expect Congress to say that the OPA “repealed” an-
ything at all.16
United States for costs that fall beyond the OPA’s grasp—things like damage
to the barge, loss of use, and lost cargo.
16 Even if Savage were right that the Government’s position amounts to
a contention that the OPA impliedly repealed the SAA (to some limited ex-
tent), that implied repeal wouldn’t save Savage here. Courts have long held
that “Congress’s intent to effect an implied repeal can be inferred when a later
statute conflicts with or is repugnant to an earlier statute; or when a newer
statute covers the whole subject of the earlier one, and clearly is intended as a
substitute.” Miccosukee, 619 F.3d at 1299; see also King v. Cornell, 106 U.S.
395, 396 (1882) (“While repeals by implication are not favored, it is well settled
that where two acts are not in all respects repugnant, if the later act covers the
whole subject of the earlier, and embraces new provisions which plainly show
that the last was intended as a substitute for the first, it will operate as a re-
peal.”).
Our decision in Tug Allie-B is on point. In that case, a commercial tug-
boat “ran aground and collided with coral reefs in the vicinity of Ledbury Reef
in Biscayne National Park.” Tug Allie-B, 273 F.3d at 936. The vessel owner
filed a claim under the Limitation of Liability Act, which “limits a vessel
owner’s liability for any damages arising from a maritime accident to the post-
accident value of the vessel and its pending freight.” Id. at 939. The United
States filed a counterclaim under the Park System Resources Protection Act
(the “PSRPA”), “claiming that, pursuant to the PSRPA, it was entitled to all
damages due to injuries to resources in the National Park as a result of the
grounding.” Id. Looking to the language of the statutes, this Court found that,
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48 Opinion of the Court 21-10745
Other courts have tackled the repeal-by-implication doctrine
in precisely this way. Take the Fourth Circuit’s ruling in Strawser
v. Atkins, 290 F.3d 720 (4th Cir. 2002). That case arose out of litiga-
tion between several U.S. states and most of the major tobacco
companies. After the states and the tobacco companies settled, a
class of Medicaid recipients who had received medical assistance
for tobacco-related complications sued the states, contending that
the “usual provisions for distribution of Medicaid recoveries [under
42 U.S.C. § 1396k(b)] apply to the funds the states receive from the
[settlement agreement], so that . . . they have a federal right to a
share of those funds.” Id. at 728. On appeal, the Fourth Circuit
“in the absence of any explicit statutory language limiting damages under the
PSRPA, . . . Congress contemplated that the Government could seek full re-
covery under the statute for accidents causing injury to park lands.” Id. at 942.
On the other hand, the Limitation of Liability Act “provides for a limitation
on the total of all recoverable damages in a marine accident.” Id. In light of
this “conflict,” we applied the PSRPA—which had no cap on damages—con-
cluding that the “most recent” and “more specific” statute “controls.” Id. at
949.
Our case, of course, is all-the-more compelling. While the SAA gener-
ally waives sovereign immunity for admiralty claims, the OPA doesn’t. In en-
acting a comprehensive framework for oil-spill-cleanup liability, the OPA not
only has no explicit waiver of sovereign immunity. It also eliminated a com-
plete defense to liability premised on governmental negligence, and it defined
“person”—in stark contrast to similar statutes like CERCLA—as including just
about every governmental entity one could think of other than the federal
government. In this way, our position is even stronger than it was in Tug-
Allie-B, where we were left only with “silence” on the part of Congress. As in
that case, then, the OPA—the statute that’s both more specific and more re-
cent—controls.
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21-10745 Opinion of the Court 49
found that this more-general rule was preempted by a 1999 Medi-
caid amendment, which “expressly provide[d] that ‘a State may use
amounts recovered or paid to the State’ under the [settlement
agreement] ‘for any expenditures determined appropriate by the
State.’” Id. at 730 (quoting 42 U.S.C. § 1396b(d)(3)(B)(ii)).
In doing so, the Fourth Circuit concluded that the repeal-by-
implication doctrine was inapposite. It distinguished run-of-the-
mill implied-repeal decisions by observing that those “cases in-
volve[d] repeals of entire statutes or rules.” Id. at 733 (emphasis
added). “By contrast, the effect of the 1999 amendment is highly
specific. The amendment does not repeal the general operation of
§ 1396k(b).” Id. In fact, “[e]very Medicaid recipient—except those
seeking tobacco money from the states—has the same rights under
§ 1396k(b) after the 1999 amendment as he or she had before it.”
Id. “Rather than repeal by implication a general statute (§
1396k(b)), the 1999 amendment simply created a specific, discrete
exception to that statute.” Id. Our case is on all fours. The OPA is
“highly specific.” And every maritime plaintiff—except for an oil
spiller—“has the same rights” after the OPA as it did before. Rather
than repeal by implication the (general) SAA, the (specific) OPA
simply created a discrete exception to it. As in Strawser, then, the
repeal-by-implication doctrine is sort of beside the point.
***
Through the OPA, Congress struck a balance between the
obligations of oil-vessel owners and the rights those owners might
have to seek reimbursement for their oil-removal costs. Whether
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50 Opinion of the Court 21-10745
that balance was the right one, it isn’t for us to say. After careful
review, we AFFIRM.