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At the beginning of their trial, both accused pleaded not guilty to a charge of possession of marihuana under section 4(1) of the Controlled Drug and Substances Act. The alleged offence date is February 13, 2002. At the close of the Crown's case, both accused made two applications: to quash the Information as it discloses no offence known to law; and, for a finding of abuse of process and a judicial stay of proceedings.
 Neither of the applicants has claimed that the marihuana seized from them was for medical purposes.
 After counsel submitted thorough and thought-provoking written arguments, my colleague the Honourable Judge Chen handed down his decision in R. v. Masse,  B.C.J. No. 2085. Judge Chen ruled on a similar application. Counsel then made further written submissions at my request.
 The following is an outline of the lengthy submissions that counsel provided.
 Counsel for the applicants submitted that section 4(1) of the Controlled Drug and Substances Act as related to the possession of marihuana is no longer in effect, being declared invalid by the Ontario Court of Appeal in R. v. Parker (2000), 146 C.C.C. (3d) 193. Further, that offence has not been "saved" by regulations passed by Order-in-Council to allow possession of marihuana for medical use and for licensing marihuana grow operations.
 The applicants' counsel urge me to follow the reasoning of Judge Chen in Masse and his conclusion that section 4(1) of the Act as it relates to marihuana is not an offence known to law.
 Following that simple possession of marihuana is not an offence known to law, it would be an abuse of process for the Federal Crown to prosecute under an invalid statute.
 Crown Counsel submitted that I am bound by the British Columbia Court of Appeal decision in R. v. Malmo-Levine,  B.C.J. No. 1095, that simple possession of marihuana is not contrary to the Charter. As a result, section 4(1) of the Controlled Drug and Substances Act is still valid law in British Columbia. Crown Counsel submitted that should follow the decisions of my colleagues in R. v. Nicholls, , .C.J. No. 881 (B.C. Prov. Ct.) and R. v. R.(A.C.),  No. 2365 (B.C. Prov. Ct.) and find that as the law is still valid in this province, there is no abuse of process.
 However, should I be bound by Parker, the offending aspects of section 4(1) of the Act have been remedied by subsequent regulations.
 Crown Counsel further submitted that Masse was improperly decided as my colleague Judge Chen incorrectly considered R. v. J.P.,  O.J. No. 1949 (Ont. S.C.) as binding on him and I should decline to follow the general rule of comity.
 Recently, the state of law regarding simple possession of marihuana has been subject to much judicial scrutiny. The timing and chronology of the decisions is also important. The following is a very brief summary of the evolution of judicial interpretation, as I see it.
R. v. Malmo-Levine and R. v. Caine,  B.C.J. No. 1095, (B.C.C.A).
The decisions addressed the constitutional validity of section 3 of the Narcotic Control Act, the offence of simple possession of marihuana. The issue was whether the appellants' section 7 Charter rights were infringed by section 3. The appellant Malmo-Levine was a Marihuana activist who helped to operate a club for users. The appellant Caine was a recreational user. The court dismissed the appeal of conviction.
R. v. Parker (2000), 146 C.C.C. (3d) 193 (Ont. C.A.), and R. v. Clay (2000), 49 O.R. (3d) 577 (Ont. C.A.).
Clay was convicted of possession, possession for the purpose of trafficking and trafficking in cannabis sativa under the Narcotic Control Act. He too was a recreational user and ran a "hemp store".
In Parker, the court considered whether the prohibitions on cultivation of marihuana under the Narcotic Control Act and possession of marihuana under section 4 of the Controlled Drug and Substances Act were contrary to Mr. Parker's section 7 Charter rights. Mr. Parker used marihuana for medical reasons, to control frequent, serious epileptic seizures. The court concluded that authorization for possession under the Regulations was illusory. The court held that in Mr. Parker's circumstances, section 4 of the Controlled Drug and Substances Act was contrary to section 7 of the Charter. The court declared section 4, with respect to marihuana, invalid but suspended that declaration for a year so that Parliament could "fill the void". As the Narcotic Control Act had been repealed, it was unnecessary to strike down section 3 of that Act.
This decision was not appealed.
The Regulations set out the circumstances and the manner in which marihuana is authorized to be used for medical purposes.
Wakeford used marihuana for medical purposes. He challenged section 56 of the Controlled Drug and Substances Act as being contrary to section 7 of the Charter as it did not allow an exemption for his caregivers. In dismissing the application, the court held that section 56 of the Act seemed to provide a way of exempting caregivers from the trafficking provisions. If the caregivers were unable to obtain an exemption, it was not because of a deficiency in the Act, but rather due to a failure to apply to the Minister for exemption or refusal of such an application.
R. v. J.P.,  O.J. No.1 (Ont. Prov. Ct.).
This was a ruling on an application for declaration that possession of marihuana in section 4(1) of the Act was no longer in force. The court held that the "gap in the regulatory scheme" was not addressed as the statute was not amended or re-enacted, but Regulations were enacted. The Regulations, not passed by Parliament but by the Governor General in Council, did not remedy the defects set out in Parker dicta. The declaration of invalidity was in effect.
R. v. Hitzig,  O.J. No. 12 (Ont. S. C.).
Lederman, J. held that as there was no legal source of marihuana, the Regulations violated section 7 of the Charter and were not saved by section 1 of the Charter. The Regulations were declared to be of no force and effect, but the declaration was suspended for six months.
R. v. Barnes,  O.J. No. 261 (Ont. Prov. Ct.).
Moore, J. followed J.P. and Parker and held that section 4(1) of the Controlled Drug and Substances Act as it relates to marihuana no longer exists and therefore the offence was one not known to law. A charge of simple possession was quashed.
R. v. Stavert,  P.E.I. No. 28 (P.E.I. Prov. Ct.).
Stavert was charged with simple possession of marihuana and made application to have the Information quashed as it did not disclose an offence known to law as per Parker. Issue estoppel was raised, specifically that the Federal Crown was estopped from re-arguing section 4(1) of the Act, on the basis that the Federal Crown is bound by Parker, nationally. The court held that issue estoppel could not be raised as not plea had been entered. However, the court went on to hold that it was an affront to the community's sense of fair play and decency if the charge proceeds even though "one third" of the Canadian population is immune from similar prosecution. The court found an abuse of process and stayed the charge.
R. v. Clarke,  N.S.J. No. 124 (N. S. Prov. Ct.).
This was a ruling on an application for a stay of proceedings as it was an abuse of process to prosecute under section 4(1) of the Act, given amongst other things that the law was in a stage of "flux" and that this was the fourth attempt to relitigate the same issue. Justice Buchan considered the importance of fairness and held that when a law has been found to be invalid by several courts in separate jurisdictions in Canada, it is an abuse of process for the Crown to continue to prosecute that law in certain provinces and not in others. The application was allowed.
R. v. Hadwen,  S.J. No. 269 (Sask. Prov. Ct.).
Hadwen was charged with possession of marihuana contrary to section 4(1) of the Act. This was a ruling on an application for a declaration that the section is no longer of any force or effect as related to possession of marihuana. Orr, J. declined to follow the Ontario decisions. Although agreeing with the reasons in Parker, the court held that the Regulations adequately addressed the concerns of the Court of Appeal in Parker.
As no evidence was led regarding the "first seed" dilemma and the medical profession's response both of which were led in Hitzig, the court declined to consider Hitzig. The application was denied.
R. v. Nicholls,  B.C.J. No. 881 (B.C. Prov. Ct.).
This was a ruling on a pre-trial application for a judicial stay because of abuse of process. Nicholls maintained that it was an abuse of process that he is prosecuted in British Columbia and would not be prosecuted in Ontario, Prince Edward Island and Nova Scotia. He relied on section 15 of the Charter. Judge Stansfield found that he was not bound by decisions out of other jurisdictions. Further, there is some tolerance for varied geographic applications of the law. Nicholls is subject to same law as all others in British Columbia. Therefore, section 4(1) of the Act was still valid legislation.
R. v. Ocoin, , A.J. No. 633 (Alta. Prov. Ct).
This was an application for judicial stay as it was unfair that prosecution proceeding in Alberta while not doing so in Ontario, Prince Edward Island and Nova Scotia. The court concluded that Parker is restricted to possession for medical purposes only. Section 4(1) of the Act remains valid for recreational users. Therefore, there was no abuse of process to prosecute a recreational use of marihuana for possession.
R. v. J.P., O.J. 1949 (Ont. S.C.).
The court held that section 4 of the Controlled Drug and Substances Act was not re-enacted. The Regulations do not prohibit simple possession of marihuana. Even if there were a prohibition in the Regulations, there is no longer a penalty in the Act. Since there is no penalty in the Regulations, a penalty cannot be proscribed by implication.
The accused was charged with simple possession of marihuana. The application to quash the Information was allowed as it did not disclose an offence known to law. The Federal Crown was not allowed to enter a stay of proceedings as the charge could be re-laid within a certain time period and that would be unfair.
R. v. R.(A.C.),  B.C.J. No. 2365 (B.C. Prov. Ct.).
A young person was charged with simple possession of marihuana under section 4(1) of the Act. The application made was that the Information did disclose an offence known to law. Judge Palmer followed Nicholls and Hadwen and concluded that section 4(1) of the Act was declared valid. Judge Palmer also concluded that, in the absence of binding authority, the Regulations filled the "void" created by Parker.
R. v. Masse,  B.C.J. No. 2085 (B.C. Prov. Ct.).
The accused was charged with possession of marihuana, contrary to section 4(1) of the Controlled Drug and Substances Act.
An application was made pursuant to section 601 of the Criminal Code to quash the Information as it does not name an offence known to law.
In granting the application, Judge Chen followed Parker, J.P. and Hitzig and concluded that section 4(1) of the Act as it relates to marihuana is invalid. He declined to follow Malmo-Levine on the basis that it was distinguishable as it did not address the issue of medicinal use of marihuana. He declined to follow Nicholls on the basis that it was rendered before the appellate decision in J.P. and was limited to the scope of the argument made by the applicant.
Is simple possession of marihuana an offence known to law?
 The Ontario cases, specifically Parker and J.P., create difficulty in this province, not so much because of their reasoning, but because of the remedy granted in Parker. The issue then becomes this: is the result of the Ontario decisions (to date) that section 4(1) of the Act as it relates to simple possession of marihuana invalid in this province?
"1. Parliament alone can save s.4(1) CDSA as it relates to the inclusion of marijuana.
2. The implementation of the MMAR, or any other regulatory scheme does not suffice. Only a legislative change carried out through a real discussion in Parliament can restore the inclusion of marijuana under s.4(1).
3. As this has not been done in the time frame given in Parker the inclusion of marijuana in s.4(1) is struck down. Section 4(1) must then be re-enacted due to the previous section being struck down.
4. While the Ontario decisions are not binding on this court, they are extremely persuasive. Even without any binding effect, the arguments themselves are valid and should be used to their utmost.
5. Any vagueness in the law is to be interpreted to the benefit of the accused, especially where penal sanctions are a possibility."
 Crown Counsel submits that the law is still valid until the British Columbia Court of Appeal or the Supreme Court of Canada decides otherwise. Crown also relies on Hadwen.
 In my view, the applicants' submissions are founded on the basic premise that while conceding that I am not bound by Parker and J.P., I ought to follow them. This is an incorrect premise in this particular case. As both decisions are from an appellate court outside of this province, they would not be binding, but may be persuasive, if they were "on point", but they are not. Parker and J.P. may be persuasive, if and only if, I were being asked to rule on a section 7 Charter challenge based on medicinal use of marihuana. That I am not asked to do.
 The applicants must provide some legal basis for a conclusion that section 4(1) of the Act is invalid in this province. For the reasons stated above, Parker and J.P. are not helpful. The applicants have not otherwise provided persuasive or binding authority from outside of this province that the Parker declaration of invalidity applies nationwide.
 The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
(Re: Hansard Spruce Mills Ltd. (1954), 4 D.L.R. 590 (B.C.S.C.)).
 Of course, the applicants urge me to apply the principle of comity and follow Masse. Crown Counsel submits that I ought not follow Masse as J.P. is not a binding authority. Also, the validity of J.P. is questionable as Rogin, J. did not consider Hitzig. Hitzig is not ad idem with J.P. regarding the declaration. Therefore J.P. cannot be said the affect the validity of the British Columbia cases Nicholls, Therrien or R.(A.C).
 After careful reading of the Masse decision and submissions of counsel, I am not aware of any subsequent decisions that have affected the validity of Judge Chen's judgment. Also, Judge Chen thoroughly analyzed the existing case law and statutes, so I could not conclude that it was in any way a nisi prius judgment.
 Crown Counsel submits that I ought to depart from the Masse decision because it was incorrect decided upon questionable, non-binding authority. That, however, is not the test. As I stated above, all relevant cases and statutes were considered and analyzed. Although I would have come to a different conclusion on those authorities than Judge Chen, again according to Re: Hansard, that is not reason enough to depart from his decision.
 Therefore, I must follow Masse and the conclusion that section 4(1) of the Act as it related to the simple possession of marihuana is invalid.
Is there an abuse of process?
 Having found that the law is invalid, the spectre of abuse of process raises its head. Is it an abuse of process to prosecute under an invalid law? I take from Stavert and Clarke that it most certainly is an abuse of process. I agree with that conclusion.
 But the analysis must go further in this case. My colleague Judge Stansfield wrote in Nicholls, the state of the law regarding simple possession of marihuana is a "mess". Justice Buchan in Clarke and my colleague Judge Palmer in R. (A.C.) wrote that the law is in a state of "flux". The question is this: how can an informed citizen know the state of the law when judges cannot agree amongst themselves; when it appears that possession of marihuana may be legal in some provinces and not in others; and when Parliament does not amend or re-enact invalid legislation? The answer is self-evident: he or she cannot. Therefore, even if I had found that the law was valid in this province and it was not an abuse of process to prosecute under it, I would still find an abuse of process in this case.
 Therefore, as this is in my view the "clearest of cases", I grant both of the applications for stays of proceedings.

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After the taxpayer in each of these cases paid the Internal Revenue Service money he did not owe, he (or his representative) submitted an administrative refund claim several years past the end of the applicable filing period set forth in §6511 of the Internal Revenue Code of 1986. Each taxpayer asked the court to extend the statutory period for an "equitable" reason, namely that he had a mental disability (senility or alcoholism) that caused the delay. Such a reason is not mentioned in §6511, but, in both cases, the Ninth Circuit read the statute as if it contained an implied "equitable tolling" exception. It then applied equity principles to each case, found that those principles justified tolling the statutory period, and permitted the actions to proceed.
Held: Congress did not intend the "equitable tolling" doctrine to apply to §6511's time (and related amount) limitations for filing tax refund claims. The taxpayers misplace their reliance on Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94 -96. Even assuming, as they contend, that a tax refund suit and a private restitution suit are sufficiently similar to warrant asking Irwin's negatively phrased question--Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply in a suit against the Government?--there are strong reasons for answering that question in the Government's favor. Section 6511 sets forth its time limitations in a highly detailed technical manner, reiterates them several times indifferent ways, imposes substantive limitations, and sets forth explicit exceptions to its basic time limits that do not include "equitable tolling." To read such tolling into these provisions would require one to assume an implied tolling exception virtually every time a number appears in §6511, and would require the tolling of that section's substantive limitations on the amount of recovery--a kind of tolling for which there is no direct precedent. There are no counter indications of congressional intent. Reading "equitable tolling" into the statute could create serious administrative problems by forcing the IRS to respond to, and perhaps litigate, large numbers of late claims. That fact suggests that, at the least, Congress would likely have wanted to decide explicitly whether, or just where and when, to expand the statute's limitations periods, rather than delegate to the courts a generalized power to do so wherever it appears that equity so requires. The taxpayers' counter rebuttal, consisting primarily of a historical analysis of the tax refund provisions, actually helps the Government's argument. Pp. 2-7.
67 F. 3d 260 and 70 F. 3d 120, reversed.
The two cases before us raise a single question. Can courts toll, for nonstatutory equitable reasons, the statutory time (and related amount) limitations for filing tax refund claims set forth in §6511 of the Internal Revenue Code of 1986? We hold that they cannot.
These two cases present similar circumstances. In each case a taxpayer initially paid the Internal Revenue Service several thousand dollars that he did not owe. In each case the taxpayer (or his representative) filed an administrative claim for refund several years after the relevant statutory time period for doing so had ended. In each case the taxpayer suffered a disability (senility or alcoholism), which, he said, explained why the delay was not his fault. And in each case he asked the court to extend the relevant statutory time period for an "equitable" reason, namely the existence of a mental disability--a reason not mentioned in §6511, but which, we assume, would permit a court to toll the statutory limitations period if, but only if, §6511 contains an implied "equitable tolling" exception. See 4 C. Wright & A. Miller, Federal Practice and Procedure §1056 (2d ed. 1987 and Supp. 1996); see also Wolin v. Smith Barney, Inc., 83 F. 3d 847, 852 (CA7 1996) (defining equitable tolling).
In both cases, the Ninth Circuit read §6511 as if it did contain an implied exception that would permit "equitable tolling." It then applied principles of equity to each case. It found those principles justified tolling the statutory time period. And it permitted the actions to proceed. 67 F. 3d 260 (1995); judgt. order reported at 70 F. 3d 120 (1995). All other Circuits that have considered the matter, however, have taken the opposite view. They have held that §6511 does not authorize equitable tolling. See Amoco Production Co. v. Newton Sheep Co., 85 F. 3d 1464 (CA10 1996); Lovett v. United States, 81 F. 3d 143 (CA Fed. 1996); Webb v. United States, 66 F. 3d 691 (CA4 1995); Oropallo v. United States, 994 F. 2d 25 (CA1 1993) (per curiam); and Vintilla v. United States, 931 F. 2d 1444 (CA11 1991). We granted certiorari to resolve this conflict. And we conclude that the latter Circuits are correct.
The taxpayers rest their claim for equitable tolling upon Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), a case in which this Court considered the timeliness of an employee's lawsuit charging his Government employer with discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Court found the lawsuit untimely, but nevertheless tolled the limitations period. It held that the "rule of equitable tolling" applies "to suits against the Government, in the same way that it is applicable" to Title VII suits against private employers. 498 U.S., at 94 -95. The Court went on to say that the "same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Id., at 95-96.
The taxpayers, pointing to Irwin, argue that principles of equitable tolling would have applied had they sued private defendants, e.g., had they sought restitution from private defendants for "Money Had and Received." See C. Keigwin, Cases in Common Law Pleading 220 (2d ed.1934). They add that given Irwin's language, there must be a "presumption" that limitations periods in tax refund suits against the Government can be equitably tolled. And, they say, that "presumption," while "rebuttable," has not been rebutted. They conclude that, given Irwin, the Ninth Circuit correctly tolled the statutory period for "equitable" reasons.
In evaluating this argument, we are willing to assume, favorably to the taxpayers but only for argument's sake, that a tax refund suit and a private suit for restitution are sufficiently similar to warrant asking Irwin's negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply? But see Flora v. United States, 362 U.S. 145, 153 -154 (1960) (citing Curtis's Administratrix v. Fiedler, 2 Black 461, 479 (1863)) (distinguishing common law suit against the tax collector from action of assumpsit for money had and received); George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 382-383 (1933); see also Plumb, Tax Refund Suits Against Collectors of Internal Revenue, 60 Harv. L. Rev. 685, 687 (1947) (describing collector suit as a fiction solely designed to bring the Government into court). We can travel no further, however, along Irwin's road, for there are strong reasons for answering Irwin's question in the Government's favor.
"[c]laim for . . . refund . . . of any tax . . . shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed . . . within 2 years from the time the tax was paid." 26 U.S.C. § 6511(a).
"[n]o credit or refund shall be allowed or made after the expiration of the period of limitation prescribed . . . unless a claim for . . . refund is filed . . . within such period." §6511(b)(1).
"If the claim was filed by the taxpayer during the 3 year period . . . the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return. . . ." §6511(b)(2)(A).
"[i]f the claim was not filed within such 3 year period, the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 years immediately preceding the filing of the claim." §6511(b)(2)(B).
The Tax Code reemphasizes the point when it says that refunds that do not comply with these limitations "shall be considered erroneous," §6514, and specifies procedures for the Government's recovery of any such "erroneous" refund payment. §§6532(b), 7405. In addition, §6511 sets forth explicit exceptions to its basic time limits, andthose very specific exceptions do not include "equitable tolling." See §6511(d) (establishing special time limit rules for refunds related to operating losses, credit carrybacks, foreign taxes, self employment taxes, worthless securities, and bad debts); see also United States v. Dalm, 494 U.S. 596, 610 (1990) (discussing mitigation provisions set forth in 26 U.S.C. §§ 1311-1314); §507 of the Revenue Act of 1942, 56 Stat. 961 (temporarily tolling limitations period during wartime).
To read an "equitable tolling" provision into these provisions, one would have to assume an implied exception for tolling virtually every time a number appears. To do so would work a kind of linguistic havoc. Moreover, such an interpretation would require tolling, not only procedural limitations, but also substantive limitations on the amount of recovery--a kind of tolling for which we have found no direct precedent. Section 6511's detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together indicate to us that Congress did not intend courts to read other unmentioned, open ended, "equitable" exceptions into the statute that it wrote. There are no counter indications. Tax law, after all, is not normally characterized by case specific exceptions reflecting individualized equities.
The nature of the underlying subject matter--tax collection--underscores the linguistic point. The IRS processes more than 200 million tax returns each year. It issues more than 90 million refunds. See Dept. of Treasury, Internal Revenue Service, 1995 Data Book 8-9. To read an "equitable tolling" exception into §6511 could create serious administrative problems by forcing the IRS to respond to, and perhaps litigate, large numbers of late claims, accompanied by requests for "equitable tolling" which, upon close inspection, might turn out to lack sufficient equitable justification. See H. R. Conf. Rep. No. 356, 69th Cong., 1st Sess., 41 (1926) (deletingprovision excusing tax deficiencies in the estates of insane or deceased individuals because of difficulties involved in defining incompetence). The nature and potential magnitude of the administrative problem suggest that Congress decided to pay the price of occasional unfairness in individual cases (penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement system. At the least it tells us that Congress would likely have wanted to decide explicitly whether, or just where and when, to expand the statute's limitations periods, rather than delegate to the courts a generalized power to do so wherever a court concludes that equity so requires.
The taxpayers' counter rebuttal consists primarily of an interesting historical analysis of the Internal Revenue Code's tax refund provisions. They try to show that §6511's specific, detailed language reflects congressional concern about matters not related to equitable tolling. They explain some language, for example, in terms of a congressional effort to stop taxpayers from keeping the refund period open indefinitely through the device of making a series of small tax payments. See S. Rep. No. 398, 68th Cong., 1st Sess., 33 (1924). They explain other language as an effort to make the refund time period and the tax assessment period coextensive. See H. R. Rep. No. 2333, 77th Cong., 2d Sess., 52 (1942). Assuming all that is so, however, such congressional efforts still seem but a smaller part of a larger congressional objective: providing the Government with strong statutory "protection against stale demands." Cf. United States v. Garbutt Oil Co., 302 U.S. 528, 533 (1938) (statute of limitations bars untimely amendment of claim for additional refund). Moreover, the history to which the taxpayers point reveals that §6511's predecessor tax refund provisions, like §6511, contained highly detailed language with clear time limits. See, e.g., §281(b) of the Revenue Act of 1924, ch. 234, 43 Stat. 301 (4 year limiton claims for overpayment of income, war profits, or excess profits tax and cap on refund amount); §322(b) of the Revenue Act of 1932, ch. 209, 47 Stat. 242 (2 year limit for claim filing and corresponding limit on refund amount); Internal Revenue Code of 1954, 68A Stat. 808 (adopting current alternative time and amount limitations); see also §810 of the Revenue Act of 1932, ch. 209, 47 Stat. 283 (imposing time and amount limits for estate tax refunds). And that history lacks any instance (but for the present cases) of equitable tolling. On balance, these historical considerations help the Government's argument.
[ Footnote * ] Together with United States v. Scott, also on certiorari to the same court.


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Extent of glaciation in Kansas and location of the ice-sheet terminus is best determined by mapping the distribution of Sioux quartzite erratics. Even the presence of less than 1% quartzite in a basal chert-limestone gravel is evidence of a temporal and spatial relationship with a glacier. From Wamego to Topeka, the terminus can be located within very narrow limits. Not as clearly defined is the amount of post-glacial erosion that has or has not been accomplished. Ridge-top concentrations of quartzite boulders may be paleovalley lag concentrates preserved by topographic reversal or, conversely, primary concentrations marking the bottoms of major crevasses. Till units of contrasting lithologies, as well as till units separated by a paleosol, provide evidence of at least two advances to the terminal zone. At maximum advance, glacier ice blocked the Kansas River, impounding a lake that extended more than 100 km (60 mi) upstream. Flow over a spillway at 1,165 ft (350 m) above sea level proceeded to Topeka through several small ice-front lakes.
In North America, glacial theory and history understandably developed mainly where the records of past glaciations are most clear. This was in those states bordering the Great Lakes. There the deposits and land forms are youngest, hence best exposed, least modified, and so easiest to understand. This region, extended to included Iowa, has been the cradle of American Pleistocene history and reconstruction. Only the older ice sheets advanced into northern Missouri, northeastern Kansas, and southern Nebraska. Their deposits are thin and scattered and few, if any, actual glacial land forms remain.
The history of glacial geology in Kansas was well summarized by Aber in 1984. It will suffice to say here that early field observations by Hay, Smyth, and Todd demonstrated that continental ice had indeed reached north-easternmost Kansas. They recognized effects the presence of the ice sheets had on local drainageways and they delineated the general limits of ice advance, information that was somewhat modified by Schoewe in the 1920's and 1930's.
The presence of John C. Frye as Director of the Kansas Geological Survey from 1943 to 1954 led to studies of many aspects of Pleistocene geology and publication of results by students, professors, and Survey staff. The 230 pages of Bulletin 99, Pleistocene geology of Kansas by Frye and Leonard, provided an outstanding compilation of knowledge available in 1952. However, a paucity of detailed maps, sections, and other explanatory diagrams has been a source of constant frustration to later researchers and markedly reduced the usefulness of many of these publications.
Although most of their research efforts have been directed toward other geographical areas, Dort, Sorenson, Johnson, and Martin, and their students, have recently modified and expanded details of knowledge about the Pleistocene history of Kansas. Notable impetus has been provided by establishment of a palynological research laboratory at the University of Kansas with support from the General Research Fund and by preparations for the 1986 Friends of the Pleistocene field trip. Presented here is a brief summary of salient aspects of their observations and working hypotheses.
A general framework of Pleistocene history was compiled almost a century ago when it was proposed that four major advances and retreats of the continental ice sheets had occurred in both Europe and North America. Only the first two of these advances were believed to have reached Kansas, one (named the Nebraskan) barely entering the northeasternmost corner, the other (named the Kansan) extending as much as 80 km (48 mi) farther south and southwest (fig. 1).
Figure 1--Known or inferred termini of the four classical glaciations in central United States (modified from Flint, 1971). Note the position of Kansas at the southwestern limit of pre-111inoian ice sheets.
This purported sequence made it very easy to identify till bodies or determine ages of associated sediments. In the far northeastern part of the state, the upper of two tills had to be, by definition, of Kansan age, the lower one, Nebraskan. Deposits of nonglacial origin could, by their position relative to one or both of those tills, be identified as of pre-Nebraskan, Aftonian, or Yarmouthian age. Furthermore, an apparently positive time line could be recognized in many localities where there were exposures of what was thought to be a single regional airfall, the Pearlette volcanic ash. This was assigned a late Kansan age on the basis of indirect stratigraphic correlations. Another time line seemed to be provided by the post-Illinoian Sangamon soil, supposedly the only red pedogenic unit in the Pleistocene section. Unfortunately, all aspects of this simple stratigraphy have been shown to be erroneous.
In Kansas, as elsewhere in the world, the former presence of glacier ice is indicated by deposits of unstratified sediment composed of a heterogeneous mixture of grain sizes and shapes--a till. Some of the included fragments bear scratches or striations and the whole deposit may rest on a smoothed and striated bedrock surface.
Although most of the fragments in a till body usually are of rock types that crop out nearby, some will have been derived from distant sources. The presence of these far-traveled erratics helps distinguish a glacial till from colluvium formed by downslope movement of rock debris from nearby outcrops.
In Kansas, pebbles and even small cobbles of granitic rock could conceivably have been carried by streams flowing eastward from the Rocky Mountains in late Tertiary time and deposited to form the Pliocene Ogallala Formation. Their presence in a sediment does not, therefore, constitute unequivocal proof of a glacial origin. On the other hand, certain lithologies are known to crop out only to the north, and glacial transport to Kansas is believed certain. Chief among these is the Sioux quartzite. Its outcrops are restricted to a small area in southwestern Minnesota and nearby parts of Iowa and South Dakota (fig. 2). Its distinctive pink to lavender color makes even tiny pieces of this rock readily identifiable, so it is an excellent indicator rock. Any sediment containing Sioux quartzite either is of direct glacial origin or was derived by reworking of a primary glacial deposit.
Figure 2--Sources of identifiable glacial erratics found in northeastern Kansas. Fragments of Sioux quartzite are common throughout the terminal zone; specimens of ore from the Iron Ranges are scarce. Distribution of Lake Superior agates from the Keweenawan volcanics is highly localized.
In addition, it is believed that fragments of metamorphosed volcanics, or greenstone, which are moderately common in northeastern Kansas, were derived from the Canadian Shield. Also present, though much less common, are pieces of hematitic iron ore, probably from the Iron Ranges of Minnesota, and Lake Superior agates from the Keewenawan volcanics of Minnesota, Wisconsin, and Michigan.
The presence of these "foreign" rock types in sediments not only constitutes almost incontestable evidence of a glacial origin for the original host deposit, but also provides indication of the direction of ice flow. Although movement may not have had straight-line directness from outcrop source to the locus of final deposition, there could not have been much deviation. Even if one admits the possibility that some clasts were picked up by an early ice-sheet advance, carried only part way to Kansas, deposited, then incorporated into a later glacier, movement from outcrops of Sioux quartzite must have been at least almost direct. The presence of the glacier terminus nearby to the west would seem to preclude any sizable detours (fig. 2).
Published here for the first time is a map by J. S. Aber showing locations of striated surfaces and ice-push structures which provide indication of the direction of glacier flow (fig. 3). Correlation of a specific indicator with a specific advance of the ice sheets, or with an advancing or retreating hemicycle, may be difficult or impossible. Orientation of indicator travel paths produced during marked lobation of the ice front may deviate considerably from the regional direction of flow.
Figure 3--Map showing directional features for Kansan and other pre-Illinoian glaciations of the lower Missouri basin region. Directional features are, for the most part, not stratigraphically controlled and could relate to any of several pre-Illinoian ice advances. In Kansas, northeasterly ice movement is associated with the lower Kansas till, and north-westerly ice advance is related to the upper Kansas till. Primary data sources include Chamberlin (1886), Todd (1899), Barbour (1900), Norton (1911), Schoewe (1941), Flint (1955), Lammerson and Dellwig (1957), Dellwig and Baldwin (1965), and Aber (1985), plus other published and unpublished sources. Eastern limit of Sioux quartzite erratics from Willard (1980); glacial limits adapted from Flint et al. (1959). Compiled and drafted by J. S. Aber in 1986.
The presence of pebbles of Sioux quartzite and other erratic fragments is especially important for interpretation of scattered occurrences of a basal gravel. Most of the clasts are composed of chert or limestone. Indeed, the quartzite comprises much less than 1%. Nevertheless, it is believed that these pebbles could have been carried from outcrops in Minnesota only by glacier ice and their presence is taken as positive proof that this gravel was deposited in association with or after an episode of continental glaciation.
As a consequence of the relatively great antiquity of the glaciation of Kansas, no land forms of direct glacial origin have been recognized. Delineation of the limits of glacier advance must, therefore, be based on the extent of sediments of unequivocal glacial origin--those deposited directly by the ice rather than by streams or in lakes adjacent to the ice. In effect, this is accomplished by finding, in the field, the farthest south distribution of till or of fragments of Sioux quartzite which, on the basis of size or topographic location, are believed to have been left by the ice sheet itself without subsequent redistribution by meltwater or floating icebergs, or post-glacial movement by gravity or streams (figs. 4 and 5).
Figure 4--Generalized distribution of Sioux quartzite erratics (triangles) and location of the ice margin. Wamego is 3 mi (4.8 km) north of the top of this map. The spillway controlled outflow from Kaw lake and stabilized water level at an elevation of 1,165 ft (355 m).
Figure 5--Sioux quartzite boulder 2 mi (3 km) northwest of Dover. Although it is located within the limits of a proglacial lake, its association with till suggests that is was emplaced directly by the glacier rather than rafted on an iceberg.
Meltwater streams are capable of transporting only pebble- or perhaps cobble-size masses of frozen till. Somewhat larger bulks can be floated on icebergs, but not enough to form later an extensive deposit. Exposure of unsorted, unstratified till can therefore be accepted as proof of the former presence of glacier ice at a specific locality. In addition, erratic boulders situated on hill tops or ridge crests or anywhere else clearly above limits of proglacial water flowage or impoundments and unaffected by postglacial downslope movement also demonstrate where ice was present. These relationships have been very successfully used in the field to locate the glacier terminus.
Along most of the 100-km (60-mi)-long terminal line between Wamego and Topeka, it is believed that the ice-front position can be fixed within a zone at most a few hundred meters wide. In some places the apparent boundary can be placed within less than 100 m (330 ft; fig. 6). This line can be followed across the existing landscape, generally with no apparent topographic control.
Figure 6--Limit of glaciation south of Mill Creek valley. Distribution of till and Sioux quartzite erratics (triangles) closely fixes the glacier terminus. The steep-sided ridge on which the glacial debris rests is composed largely of limestone bedrock and is not a true moraine.
Behind the terminus there is not a continuous sheet of till. Only scattered patches are present, leading Schoewe to coin the descriptive term "attenuated drift border." Thicknesses vary markedly over short distances. In most places bedrock underlies loessal soil with no till whatever. Locally there are only erratic boulders on a nearly bare bedrock surface.
Details of the distribution of till and erratic boulders, especially where found on hill tops and ridge crests, have elicited considerable speculation regarding relationships between present topography and that across which the ice sheets advanced. How much general erosion, or even local dissection, has occurred in postglacial time?
A reasonable first assumption is that because the glaciation of Kansas took place at least several hundred thousand years ago, postglacial processes must have been able to modify the glaciated landscape to a considerable degree--whatever that phrase might mean. Indeed, the very patchiness of till has been attributed to just this purportedly extensive removal, and the patches have been spoken of as "remnants." The localized accumulations of Sioux quartzite boulders resting on bedrock have been interpreted as lag deposits, the last, resistant remains of once-thick till.
This debate is especially germane to a locality south of Wamego where a short, narrow ridge rises precipitously about 35 m (116 ft) above flanking creek valleys. The flat crest of this ridge is covered by a sea of thousands of small boulders of Sioux quartzite (fig. 7). Exposures on the sideslopes show, however, that this accumulation is a veneer, at most only a few boulders thick, resting on limestone bedrock. Similar ridge-top accumulations of numerous quartzite boulders occur in perhaps half a dozen localities in the marginal zone of the glaciated area of Kansas.
Figure 7--Sea of erratics on the edge of a ridge east of highway K-99, 5 mi (8 km) south of Wamego. More than 99% of these clasts, displaying a remarkably small range in size, are of Sioux quartzite; the remainder are of assorted igneous lithologies. The flat-topped deposit is at most only a few feet thick on top of limestone bedrock.
One possible explanation of localized ridge-top felsenmeer would be based on topographic reversal. The hypothetical sequence would begin with deposition of thick, boulder-bearing till on the preglacial landscape. Postglacial drainage would create narrow, steep-sided gullies in this cover. As erosion proceeded, finer constituents of the till would be differentially removed, resulting in a lag concentration of the larger clasts in the gullies. Wherever the original till was especially rich in boulders, the valleys would become choked with them. Subsequently, the quartzite boulder fill would be more resistant to continuing erosion than the flanking limestone bedrock and whatever till cover remained. The boulder-filled gullies would remain essentially unaffected while the limestone hills would be worn away and, eventually, a reversal of topography would result. The former valley floor would then stand high as a boulder-capped ridge.
This is a very enticing hypothesis, but some problems remain. Chief among these is an explanation of why modern valley floors, no matter of what size or location relative to the ridge-top felsenmeer, show few, if any, quartzite boulders. It might be expected that in most areas, where quartzite boulders were not sufficiently numerous to form a protective cap on the bedrock, the few boulders present would be moved downslope by gravity and stream-flow and collect in the modern valleys. Such concentrations are rarely found. At sites where the valley floor consists of bare bedrock, it clearly is not possible to suggest that these boulders are indeed present but covered by younger alluvium. Even the boulder beds encountered by wells bored beneath the floodplain of the Kansas River cannot reasonably account for all of the proposed lag concentration.
An alternative explanation would begin with a subglacial topography essentially the same as that now present. As the frontal zone of the ice sheet began to thin during the recessive phase, major crevasses could be expected to open above submerged ridges. A few of these might be favorably located so as to receive large numbers of quartzite boulders being carried on or within the ice. Concentrations of boulders would thus accumulate on the crests of a few pre-existing bedrock ridges, remaining there as the flanking ice melted away. One of the problems associated with this hypothesis is the need to explain why the felsenmeer are composed almost entirely of quartzite boulders whereas the glacier was undoubtedly carrying other lithologies as well, as is shown by occurrences of boulders of granite, gabbro, greenstone, basalt, and limestone in other topographic situations.
Questions associated with the distribution of Sioux quartzite boulders also arise for an area southeast of Wamego. Boulders of a wide range of sizes are scattered thickly over several rounded hill tops that stand as much as 100 m (330 ft) above the Kansas River (fig. 4). On some of the summits, these boulders are seen to rest directly on limestone bedrock. Are these a residue, the last remnants of till that was originally deposited there? Or are they the only materials that were left by the ice? This is not typical of deposits in areas of younger continental glaciation such as Illinois or Wisconsin. On the other hand, many areas of late Pleistocene or Holocene deglaciation (northern Canada, Norway, Antarctica come to mind) are characterized by widespread exposures of bedrock on which are scattered only small, thin patches of till, or just boulders alone.
Another basis on which the amount of postglacial erosion might be estimated is the relationship between the apparent terminal and existing topography. Does the glacial limit seem to follow a generally straight line for considerable distances, crossing valleys, hillside slopes, and ridge crests without deviation, or is it diverted, blurred, or interrupted by these land forms?
To answer this question with confidence would require mapping in much greater detail than has yet been accomplished. However, the present impression is that the terminal line is, in general, not affected by details of the topography. Admittedly, there are clear suggestions of a broadly lobate front that advanced into some large lowland areas while being restrained at intervening promontories. But at a smaller scale the line, as defined by the southernmost quartzite boulders in each local area, crosses valleys or ridge crests and is oriented diagonally along slopes with no clear deviation. If this pattern is indeed present, then the preglacial topography must be largely preserved in the present landscape. Major postglacial erosion would have displaced or even obliterated much of the linear record.
From the earliest investigations it became accepted dogma that continental ice sheets reached Kansas only twice and that these advances were the first two of four that occurred during the Pleistocene Epoch. It also was believed that nonglacial sediments of late Kansan age could be positively identified by the presence of a layer of the Pearlette volcanic ash. Those concepts have been effectively destroyed by discoveries made during the past 25-30 yrs.
Concurrent studies in northeastern Kansas and south-eastern Nebraska found stratigraphic evidence of more than two glacial advances. By the middle 1960's, the Nebraska Geological Survey had formally recognized two Nebraskan tills and two Kansan tills, designations that were at once accepted by the Kansas Geological Survey, even though there were problems of regional correlation (fig. 8, table 1). At the same time, exploration in northeasternmost Kansas found an exposure that contained units indicating five episodes of glaciation separated by deposition of interglacial sediments and formation of paleosols. Discoveries soon followed of similarly complex records of multiple pre-Illinoian glaciations in Iowa, then in Illinois.
Figure 8--Limits of purported stadial advances of continental ice sheets (modified from Reed and Dreeszen, 1965). Termini in Nebraska and northernmost Kansas are from Reed and Dreeszen; those farther south are from the geologic map of Kansas and 1986 field mapping by Dort. Locations of designated type sections are shown for Early Nebraskan (EN), Late Nebraskan (LN), Early Kansan (EK), and Medial Kansan (MK).
Table 1--Classification of Pleistocene units according to the Nebraska Geological Survey (from Reed and Dreeszen, 1965). This classification also was used by the Kansas Geological Survey. However, studies in many areas have shown that the record is much more complex in Kansas and it is probable that all terms below the Illionian will have to be extensively redefined or, more likely, abandoned.
The assumed simplicity of fluctuations in early Pleistocene climate is now known to be wrong. However, it is at present impossible to state how many major glaciations actually occurred or how many lesser advances and retreats marked each of those.
It has been established that glacier ice reached the terminal zone in Kansas more than once. Some of the indications are unclear and subject to interpretation, but other evidence seems to be incontestable. At more than a dozen localities spread from west of Topeka to east of Lawrence, exposures of two till units have been found. In each instance these are set apart by a paleosol developed either in the upper part of the lower till or in nonglacial sediments overlying the lower till. Unfortunately, each of these sites has only a thin sedimentary section above bedrock. Therefore, estimating the duration or importance of the interglacial soil-forming interval is difficult, but it may have been relatively short, perhaps only a few thousand years. Whether all of these exposures are of sediments and paleosols of the same age, marking one interglacial interval, or whether the record is more complex also is not yet known.
Less certain is the meaning of exposures of what appear to be two till units without any intervening nonglacial sediments or paleosols. These units can be separated on the basis of differing texture, color, and lithology. Most outstanding are occurrences of red, oxidized till with a clay-rich matrix and a high content of erratic clasts, both quartzite and granitic varieties, overlying a tan, unoxidized till with a sandy matrix and almost no erratics. It is currently believed that these units are of distinctly different ages and represent separate advances of the ice, but this interpretation cannot yet be strongly supported with quantitative data.
Especially noteworthy is the presence of a few clasts of erratic lithology, notably Sioux quartzite, in chert or chert-limestone pebble gravel that locally underlies the lowest till and also occurs where no till is present. The gravel might be outwash from the glacier that subsequently left the overlying till, as has been proposed frequently in the literature, but there are suggestions that it is considerably older. More puzzling is the presence of a small hill of erratic-bearing gravel and, apparently, till approximately 7 mi (11 km) beyond the supposed terminus of glaciation as indicated by the Sioux quartzite boulder limit.
Once it has been shown that more than two identifiable till units occur in northeastern Kansas, a problem in nomenclature arises. Are the additional units assignable to the Kansan glaciation, to the Nebraskan, or to glaciation "X"? The Nebraska Geological Survey solved this quandary by identifying and naming a medial Kansan Cedar Bluffs Till, an early Kansan Nickerson Till, a late Nebraskan Iowa Point Till, and an early Nebraskan Elk Creek Till (table 1). However, distinguishing criteria and age assignments were not based on clear stratigraphic and sedimentologic data. Reliable correlation into Kansas is impossible and will remain so until additional field mapping, augmented by detailed quantitative studies, has been accomplished. Integration of data from deep-sea cores with the terrestrial observations will have considerable influence on development and acceptance of a new classification. It is, however, certain that there must at the very least be a temporal redefining of the names Nebraskan, Aftonian, and Kansan, and the use of stratigraphic names such as Sappa, Grand Island, and Holdredge seems to be unjustifiable in Kansas.
Drainage of the northern quarter of Kansas is accomplished mainly by the eastward-flowing Kansas River. Several major tributaries join this trunk stream from the north; those entering from the south are of smaller size. As an ice sheet advanced into Kansas, it progressively covered more and more of the drainage basins of the southward-flowing streams, ultimately obliterating them. The course of the Kansas River from near Junction City to Kansas City closely approximates the southern limit of glaciation. For this reason, it is believed that the Kansas River may have originated as an ice-marginal stream. However, the actual terminal line of ice advance lies several miles south of the Kansas River valley along most of this reach. This means that not only were all northward-flowing tributaries of the Kansas River blocked by the ice front, but almost all of the mainstem valley also was covered by ice. Inevitably, impoundment occurred and a series of ice-front lakes formed.
Till can be observed in exposures only a few feet above the present floodplain of the Kansas River. It also has been encountered in drill holes. Therefore, it can be stated that the Kansas River valley was present prior to one or more advances of the glacier. The occurrence of tills of contrasting lithologies near the present valley floor suggests that the valley was present before at least two glaciations.
If the Kansas River valley as it exists now is at least a fair approximation of the valley that was over-run by the ice sheets, then the shape of the existing valley should approximate the shape of the lake impounded in that valley upstream from the ice limit. The vertical position of the shoreline would have been controlled by some overflow point.
The position of the ice front, as indicated by the distribution of Sioux quartzite erratics, was a short distance south and west of Wamego. Inspection of existing topography outside this limit quickly led to identification of a col that would have permitted water to spill around the blockade. Elevation of the floor of this broad pass is shown on topographic maps as being 1,165 ft (355 m) above sea level. Tracing the 1,165-ft contour then provides the shoreline of the impounded lake, named Kaw Lake by Todd (figs. 9 and 10).
Figure 9--Proglacial lakes west of Topeka at the time of maximum ice advance. Shorelines depict water levels controlled by spillways against or close to the ice front. It is believed that there has been no significant warping of the land surface since that time and that the glaciated terrain closely approximated that of today, thus permitting plotting on modern topographic maps.
Figure 10--Pro-glacial lakes near Topeka and in the Wakarusa valley.
Greatest uncertainty is present where this elevation crosses the floors of major valleys. Postglacial history has undoubtedly included multiple episodes of incision and aggradation, so the location where the 1,165-ft contour now crosses a floodplain probably deviates somewhat from the actual head of any specific arm of the proglacial lake. However, the proposal that bayheads, and consequent delta formation, were indeed present at these general locations is strengthened by Soil Conservation Service recognition there of unusual clay-rich soils that seem to be of possible lacustrine origin.
The floor of the spillway at 1,165 ft (355 m) south of Wamego was not deeply entrenched because the valley of Mill Creek directly east was occupied by a lake having a surface elevation only slightly lower. Indeed, there may have been a drop of as little as 5 m (17 ft) through the 50-km (30-mi)-long series of small lakes that were present along the ice front eastward to Topeka.
Well established in published literature is the hypothesis that water impounded when the Kansas River valley was blocked by glacier ice rose until it was able to spill westward and southward through the so-called McPherson Valley. As early as 1895, Beede pointed out that such a course on the present topography would require water to flow uphill. A solution suggested in later papers was to call on an isostatically raised glacial forebulge to provide a gradient in the proper direction. This suggestion does not withstand close analysis, however, and westward drainage of Kaw Lake apparently did not take place.
Compilation of subsurface data provided by drill holes does indicate the presence of several buried valleys in northeastern Kansas. However, relating these to the glacial chronology has been handicapped by previous efforts to fit all events into a framework of only two major glaciations of the area. As additional information is acquired, it will probably be found that there was a considerably more complex sequence involving several advances of the ice sheets.
Any situation involving impoundment of large volumes of water by an ice dam contains the ingredients necessary for release of one or more catastrophic floods. If blockage continued at the western end of the Kansas River valley after the area around Topeka had become ice free, ultimate failure of that dam could have released a surge of water and sediment down the deglaciated portion of the valley. Large-scale trough crossbeds in a gravelly sand exposed in a pit just northwest of Topeka might have been formed by such an event. Furthermore, the deep inner bedrock gorge extending more than 60 m (198 ft) below present floodplain level in the Kansas City area could also have been formed, at least in part, by this high-volume discharge.
One other interesting question about Pleistocene drainage relates to the ancestral Missouri River or its precursor. When ice sheets reached northeastern Kansas, all preglacial drainage toward the northeast was effectively blocked. So also was the Missouri River itself, or whatever trunk drainage existed at that time. Yet there still was a vast region in the interior of the continent that received precipitation, as well as at least some flow from the ice itself.
That water had to go somewhere. Flow toward the north and northeast was blocked by ice; toward the west or southwest it was blocked by higher elevations. There seem to be only two possible courses available. Flow might have been diverted through the McPherson Valley, a possibility previously mentioned and discarded, or it could have followed a general ice-marginal route. This latter possibility seems best, but confirmation is frustrated by the absence of a readily identifiable ice-marginal valley large enough to carry drainage from the entire Midcontinental area. It may well be, however, that the broad and deep bedrock valley of the Kansas River, now filled by alluvium to depths of about 30m (99ft) away from the narrow inner gorge was carved by this stream and that glacier advance south of the valley, thereby blocking this drainageway, was only short lived.
Study of the Pleistocene history of Kansas is once more in a stage of rapidly expanding knowledge. Recognition of the multiplicity of glacial episodes and of ashfalls from distant volcanoes has made it necessary to revalidate or, more generally, modify previous concepts of stratigraphic relationships. Every sequence or correlation that was published prior to 1960 must be critically re-examined. This is clearly a time of change, but it is to be hoped that the urge to rush into print with new ideas will be tempered by the need for careful testing of hypotheses.
Aber, J. S., 1982, Two-ice-lobe model for Kansas glaciation: Nebraska Academy of Science, Transactions, v. 10, p. 25-29.
Aber, J. S., 1984, History of Kansas glacial geology: Earth Sciences History, v. 3, no. 2, p. 134-142.
Bayne, C. K., 1968, Evidence for multiple stades in the lower Pleistocene of northeastern Kansas: Kansas Academy of Science, Transactions, v. 71, p. 340-349.
Bayne, C. K., and Fent, O. S., 1963, The drainage history of the upper Kansas River basin: Kansas Academy of Science, Transactions, v. 66, no. 3, p. 363-377.
Beede, J. W., 1895, The McPherson Equus beds: Kansas Academy of Science, Transactions, v. XV, p. 104-110.
Boellstorff, J., 1978a, A need for redefinition of North American Pleistocene stages: Gulf Coast Association of Geological Societies, Transactions, v. 28, p. 65-74.
Boellstorff, J., 1978b, Chronology of some late Cenozoic deposits from the central United States and the ice ages: Nebraska Academy of Science, Transactions, v. 6, p. 35-49.
Dort, W., Jr., 1966, Nebraskan and Kansan stades--complexity and importance: Science, v. 154, no. 3,750, p. 771-772.
Dort, W., Jr., 1972, Stadial subdivisions of early Pleistocene glaciations in central United States--a developing chronology: Boreas, v. 1, no. 1, p. 55-61.
Hay, R., 1893, Some characteristics of the glaciated area of northeastern Kansas: Kansas Academy of Science, Transactions, v. 13, p. 104-106.
Lohman, S. W., and Frye, J. C., 1940, Geology and ground-water resources of the "Equus beds" area in south-central Kansas: Economic Geology, v. XXXV, p. 839-866.
Mudge, M. R., 1955, Early Pleistocene history of Wabaunsee, southeastern Riley, and southern Pottawatomie counties, Kansas: Kansas Academy of Science, Transactions, v. 58, no. 2, p. 271-281.
Mudge, M. R., and Burton, R. H., 1959, Geology and Wabaunsee County, Kansas: U.S. Geological Survey, Bulletin 1068, 210 p.
Reed. E. C., and Dreeszen, V. H., 1965, Revision of the classification of the Pleistocene deposits of Nebraska: Nebraska Geological Survey, Bulletin 23, 65 p.
Schoewe, W. H., 1924, Glacial erratics in Shawnee, Douglas, and Johnson counties, Kansas: Kansas Academy of Science, Transactions, v. 31, p. 106-109.
Schoewe, W. H., 1930, Evidence for a relocation of the drift border in eastern Kansas: Journal of Geology, v. 38, no. 1, p. 67-74.
Schoewe, W. H., 1939, Evidence for the relocation of west drift border in eastern Kansas: Kansas Academy of Science, Transactions, v. 42, p. 367.
Smyth, B. B., 1896, The terminal boulder belt in Shawnee County: Kansas Academy of Science, Transactions, v. 14, p. 220-226.
Smyth, B. B., 1898, The buried moraine of the Shunganunga: Kansas Academy of Science, Transactions, v. 15, p. 95-104.
Todd, J. E., 1911, History of Wakarusa Creek: Kansas Academy of Science, Transactions, v. 23/24, p. 211-218.
Web version updated March 10, 2010. Original publication date 1987.

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The Commonwealth of Massachusetts has sued the Pennsylvania Higher Education Assistance Agency (PHEAA) for engaging in allegedly unfair and deceptive acts and practices against Massachusetts student loan borrowers. It appears to be undisputed that PHEAA, although originally established to help provide student loans and grants for Pennsylvania residents, has become one of the largest student loan servicers in the country and now manages the federal student loan accounts of hundreds of thousands of Massachusetts residents under a contract with the United States Department of Education. The Commonwealth claims that PHEAA violated the federal Consumer Financial Protection Act and G.L. c. 93A by charging and collecting amounts not owed by borrowers, failing to process borrowers’ applications for income driven repayment plans in a timely and accurate manner, and failing to properly count borrowers’ qualifying payments under the Public Service Loan Forgiveness program.
PHEAA has moved to dismiss this action on several grounds. The Court will DENY this motion because it is not convinced that PHEAA is an arm of the Commonwealth of Pennsylvania and shares in its sovereign immunity, that PHEAA cannot be sued under G.L. c. 93A or that its alleged misconduct is exempt from c. 93A because it is affirmatively permitted by federal law, or that the United States Department of Education is an indispensable party.
1. Background—PHEAA’s Enabling Act. Certain aspects of the enabling act that created PHEAA provide background relevant to PHEAA’s claims that it is entitled to invoke the Commonwealth of Pennsylvania’s sovereign immunity and that it cannot be sued under G.L. c. 93A because it is a public entity.
PHEAA was established by the Pennsylvania Legislature as “a public corporation and government instrumentality.” 24 Pa. Stat. § 5101. It is authorized to make, guarantee, and service student loans. Id. § 5104(3).
By statute, PHEAA has substantial financial and operational independence from the Commonwealth of Pennsylvania. PHEAA can spend money “for any of its purposes” without needing any legislative appropriation. Id. § 5104(3). Although PHEAA must deposit its revenues “in the State Treasury,” it may use its funds whenever it wants “at the discretion of the board of directors for carrying out any of the corporate purposes of the agency.” Id.; see also id. § 5105.10 (PHEAA’s loan servicing, loan repayment, and other revenues are held within State Treasury in a segregated “Educational Loan Assistance Fund,” are all “appropriated to [PHEAA’s] board,” and “may be applied and reapplied as the board shall direct and shall not be subject to lapsing”). And PHEAA may borrow money, enter into contracts, and exercise most other powers of an independent corporate entity without needing approval from the Commonwealth of Pennsylvania. Id. § 5104.
Furthermore, by law Pennsylvania cannot be held liable for any of PHEAA’s debts or other obligations. Id. § 5014(3) (“no obligation of the agency shall be a debt of the State and it shall have no power to pledge the credit or taxing power of the State nor to make its debts payable out of any moneys except those of the corporation”).
2. PHEAA Does Not Share Pennsylvania’s Sovereign Immunity. PHEAA urges the Court to dismiss this action as a matter of comity, out of respect for the sovereign immunity of the Commonwealth of Pennsylvania.
Federal courts have repeatedly rejected PHEAA’s assertion that it shares Pennsylvania’s sovereign immunity from suit. See United States ex rel. Oberg v. Pennsylvania Higher Educ. Asst. Agency, 804 F.3d 646, 676-677 (4th Cir. 2015) (PHEAA not immune from suit under federal False Claims Act), cert. denied, 137 S.Ct. 617 (2017); Pele v. Pennsylvania Higher Educ. Asst. Agency, 13 F.Supp.3d 518 (E.D. Va. 2014), aff’d, 628 F.Appx. 870 (4th Cir. 2015) (PHEAA not immune from suit under federal Fair Credit Act), cert. denied, 137 S.Ct. 617 (2017); Lang v.
Pennsylvania Higher Educ. Asst. Agency, 201 F.Supp.3d 613 (M.D. Pa. 2016) (PHEAA not immune from suit under federal Fair Labor Standards Act).
The doctrine of issue preclusion bars PHEAA from relitigating this issue yet again. See Lang, supra, at 621-628 (issue preclusion barred PHEAA from relitigating whether it was arm of state for Eleventh Amendment immunity purposes, even though Third Circuit’s arm-of-the-state test differs somewhat from test applied by Fourth Circuit in Oberg); Pennsylvania Higher Educ. Asst. Agency v. NC Owners, LLC, No. 1:16-CV-1826, 2017 WL 2506397 (M.D. Pa. 2017) (issue preclusion barred PHEAA from relitigating whether it was arm of state for purposes of diversity jurisdiction, even though issue was litigated in Oberg in context of Eleventh Amendment assertion of sovereign immunity).
“Ultimately, ‘[f]airness is the “decisive consideration” in determining whether to apply offensive issue preclusion’ ” against a defendant in a civil action, based on a decision in a prior lawsuit that did not involve the current plaintiff. Pierce v. Morrison Mahoney LLP, 452 Mass. 718, 730 (2008), quoting Matter of Goldstone, 445 Mass. 551, 559 (2005), quoting in turn Matter of Cohen, 435 Mass. 7, 16 (2001). A trial court judge has “ ‘wide discretion in determining whether’ applying offensive collateral estoppel ‘would be fair to the defendant.’ ”Pierce, supra, at 731, quoting Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 11 (1995). For the reasons discussed below, the Court concludes in the exercise of its discretion that PHEAA should be bound by the Fourth Circuit’s resolution of essentially identical sovereign immunity issues in Oberg and that applying offensive issue preclusion against PHEAA is completely fair and appropriate in these circumstances.
2.1. Question of Comity. When one State is sued in the courts of another State, any application of the defendant’s sovereign immunity is a discretionary matter of comity, not something mandated by law.
440 U.S. 410, 418-427 (1979); see also Franchise Tax Bd. of Calif. v. Hyatt, 136 S.Ct. 1277, 1279 (2016) (Franchise Tax Bd. II) (equally divided Supreme Court declined to overrule Hall). All that the Full Faith and Credit Clause requires in this context is that, if the courts of one State entertain a suit against a second State, then the forum State is bound to provide at least the same extent of immunity that it would afford its own government. Franchise Tax Bd. II, 136 S.Ct. at 1281. In other words, the forum State may not, acting under its own law, award damages against agencies of the second State “that are greater than it could award against [its own] agencies in similar circumstances.” Id.
“It may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability.” Hall, 440 U.S. at 426. But it is up to each State to decide whether and to what extent to recognize and apply such a voluntary principle of interstate comity. Id.
The Supreme Judicial Court has not decided whether it “should create an exception to our rule of asserting jurisdiction to the fullest possible extent where the nonresident defendant is another State,” or is some other entity that “could properly be considered part of the State government.” Carlson Corp. v. University of Vermont, 380 Mass. 102, 103 n.3 (1980).
But even though it is not “constitutionally mandated …, this court retains the discretion to decline the exercise of jurisdiction as a matter of comity” out of respect for the sovereign immunity of other States. Mejia-Cabral v. Eagleton School, Inc., 10 Mass. L. Rptr. 1999 WL 791957, *3 (Mass. Sup. Ct. 1999) (Sosman, J.).
forum State court to “sensitively appl[y] principles of comity with a healthy regard for [the other State’s] sovereign status.” Franchise Tax Bd. I., 538 U.S. at 499.
Pennsylvania courts apply this principle. They will not recognize the sovereign immunity of agencies created by other States if similarly situated Pennsylvania agencies would not be immune from suit under Pennsylvania law. See Laconis v. Burlington County Bridge Comm’n, 583 A.2d 1218, 1221-1222 (Pa. Supr. Ct. 1990) (declining to recognize immunity of New Jersey public commission that was “not funded by tax money” with respect to injuries sustained by Pennsylvania resident at Pennsylvania end of bridge, because similarly situated Pennsylvania commission would have no sovereign immunity under Pennsylvania law); see also Flamer v. New Jersey Transit Bus Operations, Inc., 607 A.2d 260 (Pa. Sup. Ct. 1992) (applying limited waiver of sovereign immunity under New Jersey Tort Claims Act, including as to venue, because similarly situated Pennsylvania entity would be protected by similarly limited waiver of immunity under analogous Pennsylvania statute).
So, to apply principles of comity to PHEAA’s sovereign immunity claim, we must be clear as to what rules Massachusetts courts apply to determine whether similarly situated public authorities established under Massachusetts law may be sued for compensatory damages.
Commonwealth’s express consent.” Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 373 (2012).
Different rules apply when a public entity is sued in Massachusetts courts under federal law. As explained below, whether such a suit may be brought without violating the Commonwealth’s sovereign immunity turns on whether the defendant entity is an “arm of the state” for purpose of applying a State’s sovereign immunity under the United States Constitution.
The States themselves are immune from suit under federal law in their own courts, and Congress has no power under Article I of the United States Constitution to abrogate that sovereign immunity. See Alden v. Maine, 527 U.S. 706, 754 (1999). Thus, “[e]xcept where Congress exercises its enforcement power under § 5 of the Fourteenth Amendment to the United States Constitution, a State retains sovereign immunity from private suit [under federal law] in its own courts unless it consents to suit.” Boston Medical Ctr. Corp. v. Secretary of the Exec. Off. of Health and Human Svcs., 463 Mass. 447, 462-463 (2012) (applying Alden).
This immunity “bars suits against States but not lesser entities,” and thus “does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the state.” Alden, supra at 756.
The same rules that determine whether an entity is an “arm of the state” for purposes of enforcing State’s immunity from suit in federal courts under the Eleventh Amendment apply for purpose of applying whether the entity is entitled to sovereign immunity under Alden against federal claims asserted in state court. See, e.g., Goldman v. Southeastern Pennsylvania Transp. Auth., 57 A.3d 1154, 1172-1179 (Pa. 2012); Norgaard v. Port of Portland, 196 P.3d 67, 69-70 (Or. Ct. App. 2008); Hines v. Georgia Ports Auth., 604 S.E.2d 189, 192-193 (Ga. 2004). This case law is consistent with a ruling by the Supreme Judicial Court, in a case decided before Alden, that Massachusetts state entities are immune from claims brought under federal law in Massachusetts courts to the same extent that the Eleventh Amendment would bar such claims against them in Federal court. See Morris v. Massachusetts Maritime Academy, 409 Mass. 179, 184 (1991).
Although the Supreme Court has not addressed this issue directly, it has made clear that the meaning and scope of States’ sovereign immunity in State courts under Alden is no different than the meaning and scope of their sovereign immunity in Federal courts under the Eleventh Amendment. It explained that “the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.” Alden, 527 U.S. at 713; accord Northern Ins. Co. of New York v. Chatham County, Ga., 547 U.S. 189, 193 (2006).
2.3. Issue Preclusion Bars PHEAA’s Sovereign Immunity Defense. In Oberg, the United States Court of Appeals for the Fourth Circuit held (among other things) that PHEAA is supported by its own substantial non-tax revenues, that Pennsylvania is neither legally nor functionally liable for any of PHEAA’s debts or other liabilities, and “that PHEAA operates autonomously, largely free from state interference in its substantive decisions.” Oberg, 804 F.3d at 657-668 & 669. On the other hand, it recognized that Pennsylvania treats PHEAA as a state agency for many purposes, and that many of PHEAA’s activities address in-state rather than out-of-state operations. Id. at 674-676. Since these factors pointed in different directions, the court focused its analysis on “the Eleventh Amendment’s twin reasons” for protecting States against being sued in federal court. Id. at 676, quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47 (1994). The Fourth Circuit held that PHEAA is not an arm of the state, and thus is not protected by Pennsylvania’s sovereign immunity, because allowing claims for damages “to proceed against PHEAA” would “not place the Pennsylvania treasury at risk” and would “not offend the sovereign dignity of Pennsylvania.” Id. at 677.
The Court concludes that the doctrine of issue preclusion bars PHEAA from relitigating any of these rulings or holdings in Oberg.
The doctrine of issue preclusion “bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Alicea v. Commonwealth, 466 Mass. 228, 235 (2013), quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008), quoting in turn New Hampshire v. Maine, 532 U.S. 742, 748-749 (2001). “A party is precluded from relitigating an issue where ‘(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication,’ was essential to the earlier judgment, and was actually litigated in the prior action.” Degiacomo v. City of Quincy, 476 Mass. 38, 42 (2016), quoting Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998).
PHEAA implicitly concedes that most of the elements of issue preclusion are satisfied here. There was a final judgment on the merits in the prior case, PHEAA was a party, the Fourth Circuit’s rulings were essential to the prior judgment, and these issues were actually litigated first on PHEAA’s motion for summary judgment and then on appeal. The fact that the Commonwealth was not a party to the Oberg litigation is of no moment. It is entitled to the benefits of issue preclusion because PHEAA was a party to the prior litigation, PHEAA had a “full and fair opportunity to litigate the issue in the first action,” and there is nothing unfair about treating Oberg as binding in these circumstances. See Pierce, 452 Mass. at 731 (allowing offensive collateral estoppel to benefit non-party to prior proceeding), quoting Matter of Goldstone, 445 Mass. at 559.
The Court concludes that, in addition, the issues decided in Oberg are either identical to the sovereign immunity issues raised in this case, or at least overlap to an extent “so substantial that preclusion is plainly appropriate.” Commissioner of the Department of Employment and Training v. Dugan, 428 Mass. 138, 143 (1998).
Massachusetts law. See Karlin, 399 Mass. at 765–767 (Massachusetts Turnpike Authority does not share Commonwealth’s sovereign immunity). PHEAA may not relitigate the issue in defending against the claims brought under G.L. c. 93A.
In addition, Oberg established that PHEAA is not an arm of the state for purpose of applying the Eleventh Amendment’s ban on suits against the States in federal court. As explained above, this is identical to the issue that determines whether a similarly-situated Massachusetts entity would be immune from suit in Massachusetts courts under federal law. PHEAA may not relitigated the issue in defending against the claims brought under the federal Consumer Financial Protection Act.
PHEAA argues that it should not be bound in this case by Oberg because the Fourth Circuit’s test for determining whether PHEAA is an arm of the state differs from the test that the First Circuit would have applied. The arm-of-the-state tests applied by the Fourth Circuit and First Circuit differ as follows.
The Fourth Circuit considers “four non-exclusive factors when considering whether a state-created entity functions as an arm of its creating state:” (1) whether any judgment … will be paid by the State; (2) the degree of autonomy exercised by the entity …; (3) whether the entity is involved with state concerns as distinct from non-state concerns…; and (4) how the entity is treated under state law….” Oberg, 804 F.3d at 650-651. If the State will end up paying any judgment against the entity, then the entity is an arm of the State and the other factors are irrelevant. Id. at 651. Otherwise all four factors must be considered. Where the factors point in different directions, the Fourth Circuit will balance them and treat the entity as an arm of the State if and only if allowing the lawsuit to proceed against the entity would place the State treasury at risk or offend the State’s sovereign dignity. Id. at 677-678.
the state’s treasury would be at risk in the event of an adverse judgment.” Irizarry-Mora v. University of Puerto Rico, 647 F.3d 9, 12 (1st Cir. 2011), quoting Redondo Constr. Corp. v. Puerto Rico Highway & Transp. Auth., 357 F.3d 124, 126 (1st Cir. 2004).
PHEAA’s arguments that the Court should apply the First Circuit’s test, and that under this test PHEAA is an arm of the State because the Pennsylvania legislature has made clear that PHEAA is entitled to share in Pennsylvania’s sovereign immunity, are both unavailing.
To the extent it makes any difference, it would not be appropriate to apply the First Circuit’s arm-of-the-state test in this case.
The Court is not obligated to use the First Circuit’s test. Although Massachusetts courts “ ‘give respectful consideration to such lower Federal court decisions as seem persuasive,’ … [they] ‘are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law.’ ” Commonwealth v. Pon, 469 Mass. 296, 308 (2014), quoting first Commonwealth v. Hill, 377 Mass. 59, 61 (1979), and then Commonwealth v. Montanez, 388 Mass. 603, 604 (1983).
The First Circuit’s test has no possible relevance to the claims asserted against PHEAA under G.L. c. 93A. A determination under federal law as to whether an entity is “an arm of the state for purposes of sovereign immunity under the Eleventh Amendment” does not resolve whether the entity is entitled to sovereign immunity against a state law claim brought in state court, because “Eleventh Amendment immunity” and immunity under state law “are distinct concepts” often governed by different principles and rules. Ioven v. Nestel, 150 A.3d 571, 574 (Pa. Comm. Ct. 2016), app. denied, 169 A.3d 569 (Pa. 2017). As explained above, under Massachusetts law the question of whether PHEAA is immune from suit under c. 93A turns solely on whether PHEAA is “supported by its own nontax revenue sources and without the Commonwealth’s credit pledged on its behalf,” not on whether PHEAA is an arm of the state for the purposes of applying the Eleventh Amendment or Alden immunity against federal claims in state court. Karlin v. Massachusetts Tpk. Auth., 399 Mass. at 765–767.
With respect to the claims asserted under federal law, since PHEAA’s assertion of sovereign immunity must be evaluated as a matter of comity, it makes sense to apply the same test that Pennsylvania courts use when they conduct an Eleventh Amendment arm-of-the-state analysis. The Supreme Court of Pennsylvania has adopted a test that is essentially identical to the Fourth Circuit’s test, except that it has broken out the same considerations into six factors rather than four. Compare Goldman v. Southeastern Pennsylvania Transp. Auth., 57 A.3d 1154, 1172-1179 (Pa. 2012), with Oberg, 804 F.3d at 650-651 & 677-678.1 Where the factors point in different directions, Pennsylvania courts will resolve the issue by addressing, “primarily,” whether a suit against the entity “would offend the dignity of the Commonwealth of Pennsylvania, and secondarily, whether the Commonwealth has any actual legal liability” for any judgment against the entity. Goldman, supra. This also exactly matches the Fourth Circuit’s arm-of-the-state test. See Oberg, supra, at 677-678.
1 In Goldman, the Pennsylvania Supreme Court said that the relevant factors, as applied to that case, included: (1) SEPTA’s legal status “within the governmental structure of Pennsylvania both statutorily and under our case law; (2) the degree of control the Commonwealth exercises over the SEPTA Board…; (3) the power of the SEPTA Board to independently raise revenue on its own; (4) the degree of funding provided by the five counties SEPTA serves relative to that provided by the Commonwealth; (5) whether any monetary obligation incurred by SEPTA is binding on the Commonwealth; and (6) whether the core function of SEPTA—providing public transportation services—can be categorized as a function which is normally performed by local government or state government.” 57 A.3d at 1179.
These six factors map directly onto the four factors articulated by the Fourth Circuit. Goldman factor (1) is essentially the same as Oberg factor (4), which asks “how the entity is treated under state law.” Goldman factors (2), (3), and (4) are all aspects of Oberg factor (2), which concerns “the degree of autonomy exercised by the entity.” Goldman factor (5) is the same as Oberg factor (1), which asks “whether any judgment … will be paid by the State.” And Goldman factor (6) is a case-specific application of Oberg factor (3), which asks “whether the entity is involved with state concerns as distinct from non-state concerns.” See Oberg, 804 F.3d at 650-651.
2 It is worth noting that the conclusions by the Supreme Court of Pennsylvania in Gorman closely parallel the Fourth Circuit’s holdings in Oberg. The Pennsylvania court held that the Southeastern Pennsylvania Transportation Authority (“SEPTA”) may be sued in state court under the Federal Employers’ Liability Act after concluding that the relevant factors pointed in different directions, that a suit against an independent entity like SEPTA would not threaten the sovereign dignity of Pennsylvania, and that a judgment against SEPTA would have no impact on Pennsylvania’s treasury. See Gorman, 57 A.3d at 1181-1185.
3 As the Fourth Circuit explained, “PHEAA is authorized to pursue student-loan collection actions independently, see 24 Pa. Stat. § 5104.3, but the Commonwealth Attorneys Act otherwise requires the Attorney General to represent PHEAA in civil litigation absent a delegation of authority, see 71 Pa. Stat. § 732-204(c). PHEAA’s standard practice is to seek such delegations in all non-collection actions; PHEAA’s general counsel could not recall a request ever being denied.” Oberg, 804 F.3d at 656.
Fresenius Med. Car Cardiovascular Resources, Inc. v. Puerto Rico and Carribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 69-70 (1st Cir. 2003).
In the absence of any clear statutory indication that the Legislature intended for PHEAA to share in Pennsylvania’s sovereign immunity, the First Circuit’s test becomes indistinguishable from the Fourth Circuit’s test. Thus, even one the First Circuit’s test provided the applicable rules of decision, it would still be appropriate to treat the Fourth Circuit’s rulings in Oberg has having preclusive effect in this case.
In sum, under the doctrine of issue preclusion, the Fourth Circuit’s rulings establish that PHEAA is not an arm of the state, either under Massachusetts law or under federal constitutional principles, and bar PHEAA from relitigating the issue.
3.1. PHEAA Is a “Person” Subject to Suit under G.L. c. 93A. PHEAA’s assertion that it cannot be sued under G.L. c. 93A because it is not a “person” within the meaning of that statute is also without merit.
The Attorney General may bring an action in the name of the Commonwealth against any “person” who is using “unfair or deceptive acts or practices in the conduct of any trade or commerce.” G.L. c. 93A, §§ 2 & 4. For purposes of this statute, the Legislature has defined the term “person” to “include, where applicable, natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity.” Id. § 1. On its face this statutory definition of “person” would seem to encompass PHEAA, which is a legal entity.
PHEAA argues that it nonetheless cannot be sued under c. 93A because it is public instrumentality rather than a private corporation. It invokes “the widely accepted rule of statutory construction that general words in a statute such as ‘persons’ will not ordinarily be construed to include the State or political subdivisions thereof.” Perez v. Boston Hous. Auth., 368 Mass. 333, 339 (1975), quoting Hansen v. Commonwealth, 344 Mass. 214, 219 (1962).
therefore barred from claiming that it is the equivalent of the Commonwealth of Pennsylvania for the purpose of applying c. 93A.
4 The Court recognizes that Bretton contains dictum suggesting that the State Lottery Commission is not a “person” within the meaning of c. 93A because it is a public entity specially created by statute. 41 Mass. App. at 738. But the Bretton court expressly stated that it “need not rely on that ground” because it concluded that the Commission was not engaged in trade or commerce within the meaning of c. 93A. Id. at 738-739. Since the discussion of whether the Commission was a “person” was “unnecessary to the holding of the case,” it is “merely dicta” and not binding. Town of Dartmouth v. Greater New Bedford Regional Vocational Technical High School Dist., 461 Mass. 366, 381 (2012).
Similarly, PHEAA’s assertion that Judge Saris held that the University of Massachusetts is not a “person” within the meaning of G.L. c. 93A is incorrect. What she actually held is that c. 93A did not waive the Commonwealth’s sovereign immunity either explicitly or by necessary implication. See Max-Planck-Gesellschaft Zur Foerderung der Wissenschaften E.V. v. Whitehead Institute for Biomedical Research, 850 F.Supp.2d 317, 327-331 (D.Mass. 2011) (Saris, J.).
has not identified any federal law that authorizes a student loan servicer to do such things.
“A defendant’s burden in claiming the exemption [under § 3] is ‘a difficult one to meet. To sustain it, a defendant must show more than the mere existence of a related or even overlapping regulatory scheme that covers the transaction. Rather, a defendant must show that such scheme affirmatively permits the practice which is alleged to be unfair or deceptive.’ ” Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 750 (2008), quoting Fleming v. National Union Fire Ins. Co., 445 Mass. 381, 390 (2005); accord, e.g., Aspinall v. Phillip Morris, Inc., 453 Mass. 431, 434-435 (2009) (describing this burden as a “heavy one”).
PHEAA has not met its difficult and heavy burden of proving that its alleged misconduct is affirmatively authorized by federal law.
Protection Act and G.L. c. 93A, federal law would bar the assessment of civil penalties or the award of money damages or restitution against PHEAA.
The mere fact that some but not all of the relief sought by the Commonwealth in this case is allegedly inconsistent with the Department’s rights under its contract with PHEAA does not make PHEAA an indispensable party.
Where the United States or one of its agencies has some legal interest in the subject matter of a state civil action, but relief could be granted against the current defendant without infringing upon any legal rights of the federal agency, that agency is not an indispensable party and the case may proceed in state court. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 291-296, rev. denied, 445 Mass. 1109 (2005).
This follows from the more general principle that where “[a] decree may be framed” to grant relief against the defendants “who are before the court,” without “affect[ing] the rights of those who are not,” any missing parties “are not indispensable parties.” Franks v. Markson, 337 Mass. 278, 284 (1958). This general principle has now been codified in the rules of civil procedure. See Mass. R. Civ. P. 19(b) (factors to consider in determining whether missing party is indispensable include “the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures,” any prejudice to the missing party “can be lessened or avoided”).
In Kitras, the plaintiffs claimed easements by necessity crossing their neighbors’ lots. Many of those lots were held by the United States in trust for the Wampanoag Tribal Council of Gay Head, Inc. Id. at 286. However, it appeared that any easements awarded in the case could be located so that they would not affect any of the land held in trust by the United States. Id. at 294-295. Since there was no showing “that the United States inevitably has an interest in whatever judgment may be entered,” the United States was not an indispensable party. Id. at 296.
This case is indistinguishable from Kitras. Since any relief against PHEAA could be structured to as not to interfere or otherwise conflict with the Department’s legal rights, and it is therefore not inevitable that the Department will have an interest in whatever judgment may be entered, the Department is not an indispensable party.
Defendant’s motion to dismiss is DENIED. The Court will hold a Rule 16 scheduling conference with the parties on April 17, 2018, at 2:00 p.m.
BARBARA KEWLEY vs. DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION & others.
Suffolk. December 11, 2013. – August 22, 2014.
Present: Green, Sikora, & Milkey, JJ.
SCHOOL COMMITTEE OF MARSHFIELD vs. MARSHFIELD EDUCATION ASSOCIATION.
Plymouth. October 8, 2013. ‑ January 28, 2014.
Present: Kafker, Vuono, & Carhart, JJ.
PAUL C. NORDBERG vs. DEPARTMENT OF EDUCATION & others.
Paul C. Nordberg appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.