Key Tronic Corp. v. United States, 511 U.S. 809, 15 (1994)

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Cite as: 511 U. S. 809 (1994)

Scalia, J., dissenting in part

The first of the three reasons the Court gives for refusing to read 9607(a)(4)(B) and 9601(25) to cover attorney's fees displays the same confusion between a requirement of explicitness and a requirement of a password. The Court states that "attorney's fees generally are not . . . recoverable . . . 'absent explicit congressional authorization,' " ante, at 814 (quoting Runyon v. McCrary, 427 U. S. 160, 185 (1976), and notes further that none of the statutory provisions at issue "expressly mentions the recovery of attorney's fees," ante, at 815. But to meet the demands of Runyon, Congress need only be explicit—it need not incant the magic phrase "attorney's fees." Where, as here, Congress has explicitly authorized recovery of costs of "enforcement activities," and where, as here, the costs of "enforcement activities" naturally (and indeed primarily) include attorney's fees, that textual authorization satisfies Runyon.

The Court also draws a negative inference from the fact that Congress expressly provided for attorney's fee awards in other portions of the Superfund Amendments and Re-authorization Act of 1986, 100 Stat. 1613, the Act that added the "enforcement activities" language of 42 U. S. C. 9601(25). From this, the Court concludes that Congress's failure to mention attorney's fees in 9607 or 9613 "strongly suggest[s] a deliberate decision not to authorize such awards." Ante, at 819. That argument would be persuasive if it were ambiguous whether, for a private party, the cost of "enforcement activities" includes attorney's fees. But since it is not, the fact that Congress provided for the recovery of attorney's fees eo nomine in two other sections is of little relevance. Given the explicitness of the award of costs of "enforcement activities," the " 'attorney's fees' was used elsewhere" argument is simply a watered-down version of the "magic words" argument rejected above.

Finally, the Court comes to grips with the core issue in this case, declaring that "it would stretch the plain terms of the phrase 'enforcement activities' too far to construe it as


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