View PDF Version

No. 06-562

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

ATLANTIC RESEARCH CORPORATION

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 06-562

UNITED STATES OF AMERICA, PETITIONER

v.

ATLANTIC RESEARCH CORPORATION

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

1. Respondent concedes that the Court should grant review in this case to resolve the circuit conflict over the question whether a potentially responsible party (PRP) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., that is not eligible to bring an action for contribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may nevertheless bring an action against an other PRP under Section 107(a), 42 U.S.C. 9607(a). Re spondent contends only that, in the event the Court grants review, it should also consider, as an alternative ground for affirmance, the argument that respondent was eligible to bring an action for contribution against the government under Section 113(f), on the theory that, even if respondent lacked a cause of action against the government under Section 107(a), it could pursue a re quest for declaratory relief under Section 107(a) (and thereby trigger the right to bring a claim under Section 113(f)). That argument, however, has been forfeited because respondent failed properly to preserve it below. In the district court, respondent expressly dropped its claim under Section 113(f) in the wake of this Court's decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004). See Mot. for Leave to File Am. Compl. 2 (stating that, "[u]nder [Cooper Indus tries], the Section 113(f)(1) claim may no longer be main tained"). Accordingly, the district court held only that respondent did not have a cause of action under Section 107(a). Pet. App. 21a-28a. In the court of appeals, moreover, respondent did not advance this argument until its reply brief, and the court of appeals did not ad dress it. See, e.g., Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 564 n.1 (8th Cir. 2003) (stating that "[i]t is well settled that we do not consider arguments raised for the first time in a reply brief"). In the event the Court grants review in this case, therefore, it need not con sider respondent's alternative argument.

In any event, that argument plainly lacks merit. As the petition demonstrates (Pet. 15-23), Section 107(a) does not afford a cause of action for one PRP to sue an other PRP. If that understanding of the scope of Sec tion 107(a) is correct, it necessarily follows that a PRP cannot pursue a claim for declaratory relief against an other PRP under Section 107(a). As even respondent concedes (Br. in Opp. 8 n.2), the Declaratory Judgment Act is purely procedural and remedial in nature, see Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); it cannot supply a substantive cause of action where none exists. Thus, if PRPs are not within the class of parties entitled to sue for the relief afforded by Section 107(a), they cannot by sleight-of-hand overcome that fundamental flaw by seeking declaratory relief un der the same provision. See Franchise Tax Bd. v. Con struction Laborers Vacation Trust for So. Cal., 463 U.S. 1, 27 (1983).

Even assuming arguendo that one PRP could re quest a declaration that another party was a PRP in some circumstances, therefore, such a request would not arise under Section 107(a) and thus could not constitute "[a] civil action under [Section 107(a)]" so as to trigger the right to bring suit under Section 113(f). Franchise Tax Bd., 463 U.S. at 27; cf. Cooper Industries, 543 U.S. at 160-161 (stating question presented as "whether a private party who has not been sued under § 106 or § 107(a) may nevertheless obtain contribution under § 113(f)(1) from other liable parties"). A contrary read ing of Section 113(f) would effectively render superflu ous the statutory requirement that a PRP may bring a claim for contribution only "during or following" an ac tion under Section 106 or Section 107(a), by enabling a PRP to manufacture a qualifying Section 107(a) action through the simple expedient of including a request for declaratory relief. Nothing in CERCLA, or the case law interpreting it, supports such a peculiar result.

2. This Court has before it three petitions involving the same principal question: i.e., whether a potentially responsible party can pursue an action against another PRP under Section 107(a). See E.I. du Pont de Ne mours & Co. v. United States, petition for cert. pending, No. 06-726 (filed Nov. 21, 2006) (DuPont); UGI Utilities, Inc. v. Consolidated Edison Co. of New York, Inc., peti tion for cert. pending, No. 05-1323 (filed Apr. 14, 2006).1 It now appears that all three petitions will be considered together at the Court's January 19 Conference. Accord ingly, because this case squarely presents all relevant aspects of the question that has divided the circuits, the petition for a writ of certiorari should be granted. The later-filed petition in DuPont also would be an appropri ate vehicle for resolving the question presented, so the Court may wish to grant certiorari in that case as well. As explained at greater length in the government's brief in UGI, however, the petition in UGI would constitute a less suitable vehicle than either this case or DuPont in which to resolve the circuit conflict. First, in light of the arguments that have been advanced by the respondent in UGI (see 05-1323 Resp. Supp. Br. 3-9), that case now clearly presents additional (and complex) factual and legal questions concerning the precise parameters of the cause of action for contribution under another provision of CERCLA, Section 113(f)(3)(B)-questions that are not independently worthy of review and over which there is at present no disagreement among the circuits. Additionally, UGI does not present the subsidiary ques tion of whether one PRP could bring an action against another on the theory that Section 107(a) contains an implied right to contribution.2 The petition in that case should therefore be held pending the Court's disposition of this case, even if the Court decides to grant review only in this case or in DuPont.

CONCLUSION

The petition for a writ of certiorari should be granted. In the event that the Court also grants the petition in E.I. du Pont de Nemours & Co. v. United States, No. 06-726, the cases should be consolidated for oral argument.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

JANUARY 2007

1 In all of those cases, the courts of appeals held, as a categorical matter, that a PRP either could or could not sue another PRP under Section 107(a), without drawing any distinction based on whether the defendant PRP was a private party or the federal government. See Pet. App. 19a; E.I. du Pont de Nemours & Co. v. United States, 460 F.3d 515, 528-529 (3d Cir. 2006); Consolidated Edison Co. of New York, Inc. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005). There is no basis for the suggestion (05-1323 Pet. Supp. Br. 2-3) that the govern ment's liability as a PRP under Section 107(a) could somehow be broader than that of private PRPs. To the contrary, CERCLA makes clear that the government's waiver of sovereign immunity is limited to circumstances in which private parties would also be liable under Section 107(a). See 42 U.S.C. 9620(a)(1) (providing that "[e]ach department, agency, and instrumentality of the United States * * * shall be subject to * * * this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovern mental entity, including liability under [Section 107]").

2 In UGI, the court of appeals considered only the question whether the specific language of Section 107(a)(1)-(4)(B) authorizes one PRP to sue another (regardless of whether that cause of action would be characterized as "express" or "implied"). See 423 F.3d at 99. The court did not consider whether Section 107 more generally contains an implied right to contribution, in the sense that the court of appeals in this case contemplated. See Pet. App. 15a-17a. Nor did the respondent in UGI advance any such argument in the court of appeals. See 05-1323 U.S. Br. 13.