Petition for Writ of Certiorari — APC Investment Co., et al., Petitioners v. Howmet Aerospace Inc., fka Arconic, Inc., et al.

Supreme Court briefMar 22, 2021

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No. _________

IN THE

Supreme Court of the United States

____________________

APC INVESTMENT CO., ET AL.,

PETITIONERS,

ARCONIC, INC., ET AL.,

RESPONDENTS.

____________________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

____________________

JAMES BRIGGS HARRIS

Counsel of Record

STEPHEN F. FINK

THOMPSON & KNIGHT LLP

1722 Routh Street

Suite 1500

Dallas, Texas 75201

Telephone: (214) 969-1700

james.harris@tklaw.com

stephen.fink@tklaw.com

Counsel for Petitioners

Additional counsel listed on signature page

QUESTION PRESENTED

This case presents a question that will be resolved

by the decision in Government of Guam v. United

States, No. 20-382, 2021 WL 77250 (Jan. 21, 2021)

(hereinafter “Guam”):

Is the statutory claim for contribution in section 113 of CERCLA, including the statute of

limitations found in section 113(g)(3), governed exclusively by the statute’s text without reference to “common law” or other nonCERCLA principles of contribution?

In the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613,

1647–48, Congress added § 113(f)–(h) to the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, 42 U.S.C. §§ 9601–9675 (CERCLA). Those provisions established specific and explicit procedures for asserting a claim for “contribution,” displacing the claim that some courts had previously implied from the statute. See Key Tronic Corp.

v. United States, 511 U.S. 809, 816 (1994) (citing district-court cases).

Because the Court has already granted review of

a case that will consider and decide the foregoing

question, which is outcome determinative in this case,

petitioners respectfully request that their petition be

granted or at least held pending the Court’s decision

in Guam for appropriate disposition thereafter.

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioners are: APC Investment Co.; Associated

Plating Company; Associated Plating Company, Inc.;

Gordon E. McCann; Lynnea R. McCann; Darrell K.

Golnick; Clare S. Golnick; Bodycote Thermal Processing, Inc.; Powerine Oil Company; Claudette Earl;

Earl Mfg. Co., Inc.; Ferro Corp.; PMC Specialties

Group, Inc.; Fireman’s Fund Insurance Company;

Federal Insurance Company, as Insurers for Palley

Supply Company; Foss Plating Company, Inc.; Kekropia, Inc.; Palmtree Acquisition Corporation; PhibroTech, Inc.; First Dice Road Company, L.P.; Union Pacific Railroad Company; Halliburton Affiliates, LLC;

and Cheryl A. Golnick.

Respondents are Arconic Inc., f.k.a. Alcoa; Applied

Micro Circuits Corp.; BASF Corporation; Baxter

Healthcare Corporation; Cal-Tape & Label Co.; California Hydroforming Company, Inc.; Cintas Corporation; Columbia Showcase & Cabinet Company, Inc.;

County Of Los Angeles; Crosby & Overton, Inc.; Disney Enterprises, Inc.; FHL Group; Forenco, Inc.; General Dynamics Corporation; Hercules Incorporated;

Hexcel Corporation; Honeywell International Inc.; International Paper Company; Los Angeles County Metropolitan Transportation Authority; Masco Corporation Of Indiana; Mattel, Inc.; Merck Sharp & Dohme

Corporation; Pilkington Group Limited; Quest Diagnostics Clinical Laboratories, Inc.; Raytheon Company; Safety-Kleen Systems, Inc.; SoCo West, Inc.;

Sparton Technology, Inc.; The Boeing Company; The

Dow Chemical Company; The Regents of The University Of California; TriMas Corporation; and Univar

USA Inc.

iii

Pursuant to this Court’s Rule 29.6, undersigned

counsel states that:

1. APC Investment Co. has no parent corporation,

and no publicly traded corporation owns ten percent

(10%) or more of its stock.

2. Associated Plating Company has no parent corporation, and no publicly traded corporation owns ten

percent (10%) or more of its stock.

3. Associated Plating Company, Inc. (f/k/a Associated Plating Acquisition Corp.) has no parent corporation, and no publicly traded corporation owns ten

percent (10%) or more of its stock.

4. Bodycote Thermal Processing, Inc. is a wholly

owned subsidiary of Bodycote U.S.A., Inc. Bodycote

U.S.A., Inc. is wholly owned by Bodycote Americas,

Inc., which is in turn ultimately wholly owned by Bodycote, PLC, a publicly traded company. No entity

other than Bodycote U.S.A., Inc. directly owns any

stock in Bodycote Thermal Processing, Inc.

5. Earl Manufacturing Company has no parent

corporation, and no publicly held corporation owns ten

percent (10%) or more of its stock.

6. Federal Insurance Company is wholly owned by

Chubb INA Holdings Inc. Chubb INA Holdings is 80%

owned by Chubb Group Holdings Inc. and 20% owned

by Chubb Limited. Chubb Group Holdings Inc. is

wholly owned by Chubb Limited, which is a publicly

traded company.

ACE Property and Casualty Insurance Company

is a wholly owned subsidiary of INA Holdings Corporation. INA Financial Corporation owns 100% of INA

Holdings Corporation. INA Corporation owns 100% of

INA Financial Corporation. Chubb INA Holding, Inc.

owns 100% of INA Corporation. Chubb INA Holdings

Inc. owns 100% of the issued and outstanding shares

of INA Corporation. Chubb Group Holdings Inc. owns

80% of the issued and outstanding shares of Chubb

INA Holdings Inc. The remaining 20% of the issued

and outstanding shares are owned directly by Chubb

Group Holdings Inc.’s parent corporation, Chubb Limited. Chubb Limited is a publicly traded company.

7. Ferro Corporation has no parent corporation,

and no publicly held corporation owns ten percent

(10%) or more of its stock.

8. Fireman’s Fund Insurance Company: Fireman’s Fund Insurance Company, a California corporation, is a wholly owned subsidiary of Allianz Global

Risks US Insurance Company, an Illinois corporation

(“AGR US”). Eighty percent (80%) of the voting common stock of AGR US is held by Allianz of America,

Inc., which is a wholly owned subsidiary of Allianz Europe B.V., a wholly owned subsidiary of Allianz SE.

Twenty percent (20%) of the voting common stock and

one hundred percent (100%) of the non-voting preferred stock of AGR US is held by AGCS International

Holding B.V., which is a wholly owned subsidiary of

Allianz Global Corporate & Specialty SE, a wholly

owned subsidiary of Allianz SE. Allianz SE is a publicly held company that indirectly holds 10% or more

of Fireman’s Fund Insurance Company and its subsidiaries.

American Automobile Insurance Company: American Automobile Insurance Company, a Missouri corporation, is a wholly owned subsidiary of Fireman’s

Fund Insurance Company, a California corporation,

which in turn is a wholly owned subsidiary of Allianz

Global Risks US Insurance Company, an Illinois corporation (“AGR US”). Eighty percent (80%) of the voting common stock of AGR US is held by Allianz of

America, Inc., which is a wholly owned subsidiary of

Allianz Europe B.V., a wholly owned subsidiary of Allianz SE. Twenty percent (20%) of the voting common

stock and one hundred percent (100%) of the non-voting preferred stock of AGR US is held by AGCS International Holding B.V., which is a wholly owned subsidiary of Allianz Global Corporate & Specialty SE, a

wholly owned subsidiary of Allianz SE. Allianz SE is

a publicly held company that indirectly holds 10% or

more of Fireman’s Fund Insurance Company (and its

subsidiaries, including American Automobile Insurance Company).

Associated Indemnity Corporation: Associated Indemnity Corporation, a California corporation, is a

wholly owned subsidiary of Fireman’s Fund Insurance

Company, a California corporation, which in turn is a

wholly owned subsidiary of Allianz Global Risks US

Insurance Company, an Illinois corporation (“AGR

US”). Eighty percent (80%) of the voting common

stock of AGR US is held by Allianz of America, Inc.,

which is a wholly owned subsidiary of Allianz Europe

B.V., a wholly owned subsidiary of Allianz SE. Twenty

percent (20%) of the voting common stock and one

hundred percent (100%) of the non-voting preferred

stock of AGR US is held by AGCS International Holding B.V., which is a wholly owned subsidiary of Allianz Global Corporate & Specialty SE, a wholly owned

subsidiary of Allianz SE. Allianz SE is a publicly held

company that indirectly holds 10% or more of Fireman’s Fund Insurance Company (and its subsidiaries,

including Associated Indemnity Corporation).

Chicago Insurance Company: Chicago Insurance

Company, an Illinois corporation, is a wholly owned

subsidiary of Fireman’s Fund Insurance Company, a

California corporation, which in turn is a wholly

owned subsidiary of Allianz Global Risks US Insurance Company, an Illinois corporation (“AGR US”).

Eighty percent (80%) of the voting common stock of

AGR US is held by Allianz of America, Inc., which is a

wholly owned subsidiary of Allianz Europe B.V., a

wholly owned subsidiary of Allianz SE. Twenty percent (20%) of the voting common stock and one hundred percent (100%) of the non-voting preferred stock

of AGR US is held by AGCS International Holding

B.V., which is a wholly owned subsidiary of Allianz

Global Corporate & Specialty SE, a wholly owned subsidiary of Allianz SE. Allianz SE is a publicly held

company that indirectly holds 10% or more of Fireman’s Fund Insurance Company (and its subsidiaries,

including Chicago Insurance Company).

Interstate Fire & Casualty Company: Interstate

Fire & Casualty Company, an Illinois corporation, is

a wholly owned subsidiary of Fireman’s Fund Insurance Company, a California corporation, which in

turn is a wholly owned subsidiary of Allianz Global

Risks US Insurance Company, an Illinois corporation

(“AGR US”). Eighty percent (80%) of the voting common stock of AGR US is held by Allianz of America,

Inc., which is a wholly owned subsidiary of Allianz Europe B.V., a wholly owned subsidiary of Allianz SE.

Twenty percent (20%) of the voting common stock and

vii

one hundred percent (100%) of the non-voting preferred stock of AGR US is held by AGCS International

Holding B.V., which is a wholly owned subsidiary of

Allianz Global Corporate & Specialty SE, a wholly

owned subsidiary of Allianz SE. Allianz SE is a publicly held company that indirectly holds 10% or more

of Fireman’s Fund Insurance Company (and its subsidiaries, including Interstate Fire & Casualty Company).

National Surety Corporation: National Surety

Corporation, an Illinois corporation, is a wholly owned

subsidiary of Fireman’s Fund Insurance Company, a

California corporation, which in turn is a wholly

owned subsidiary of Allianz Global Risks US Insurance Company, an Illinois corporation (“AGR US”).

Eighty percent (80%) of the voting common stock of

AGR US is held by Allianz of America, Inc., which is a

wholly owned subsidiary of Allianz Europe B.V., a

wholly owned subsidiary of Allianz SE. Twenty percent (20%) of the voting common stock and one hundred percent (100%) of the non-voting preferred stock

of AGR US is held by AGCS International Holding

B.V., which is a wholly owned subsidiary of Allianz

Global Corporate & Specialty SE, a wholly owned subsidiary of Allianz SE. Allianz SE is a publicly held

company that indirectly holds 10% or more of Fireman’s Fund Insurance Company (and its subsidiaries,

including National Surety Corporation).

The American Insurance Company: The American

Insurance Company, an Ohio corporation, is a wholly

owned subsidiary of Fireman’s Fund Insurance Company, a California corporation, which in turn is a

wholly owned subsidiary of Allianz Global Risks US

Insurance Company, an Illinois corporation (“AGR

viii

US”). Eighty percent (80%) of the voting common

stock of AGR US is held by Allianz of America, Inc.,

which is a wholly owned subsidiary of Allianz Europe

B.V., a wholly owned subsidiary of Allianz SE. Twenty

percent (20%) of the voting common stock and one

hundred percent (100%) of the non-voting preferred

stock of AGR US is held by AGCS International Holding B.V., which is a wholly owned subsidiary of Allianz Global Corporate & Specialty SE, a wholly owned

subsidiary of Allianz SE. Allianz SE is a publicly held

company that indirectly holds 10% or more of Fireman’s Fund Insurance Company (and its subsidiaries,

including The American Insurance Company).

Fireman’s Fund Insurance Company of Hawaii,

Inc.: Fireman’s Fund Insurance Company of Hawaii,

Inc., a Hawaii corporation, is a wholly owned subsidiary of Fireman’s Fund Insurance Company, a California corporation, which in turn is a wholly owned subsidiary of Allianz Global Risks US Insurance Company, an Illinois corporation (“AGR US”). Eighty percent (80%) of the voting common stock of AGR US is

held by Allianz of America, Inc., which is a wholly

owned subsidiary of Allianz Europe B.V., a wholly

owned subsidiary of Allianz SE. Twenty percent (20%)

of the voting common stock and one hundred percent

(100%) of the non-voting preferred stock of AGR US is

held by AGCS International Holding B.V., which is a

wholly owned subsidiary of Allianz Global Corporate

& Specialty SE, a wholly owned subsidiary of Allianz

SE. Allianz SE is a publicly held company that indirectly holds 10% or more of Fireman’s Fund Insurance

Company (and its subsidiaries, including Fireman’s

Fund Insurance Company of Hawaii, Inc.).

Fireman’s Fund Indemnity Corporation: Fireman’s Fund Indemnity Corporation, a New Jersey corporation, is a wholly owned subsidiary of Fireman’s

Fund Insurance Company, a California corporation,

which in turn is a wholly owned subsidiary of Allianz

Global Risks US Insurance Company, an Illinois corporation (“AGR US”). Eighty percent (80%) of the voting common stock of AGR US is held by Allianz of

America, Inc., which is a wholly owned subsidiary of

Allianz Europe B.V., a wholly owned subsidiary of Allianz SE. Twenty percent (20%) of the voting common

wholly owned subsidiary of Allianz SE. Allianz SE is

a publicly held company that indirectly holds 10% or

more of Fireman’s Fund Insurance Company (and its

subsidiaries, including Fireman’s Fund Indemnity

Corporation).

9. 100% of the ownership interest in First Dice

Road Company, a California limited partnership, is

held by Western Magnesium Corp., a California corporation, which is also the general partner and sole

limited partner of First Dice Road Company. Western

Magnesium Corp. is a wholly owned subsidiary of

Phibro Animal Health Corporation, a Delaware corporation and publicly traded company.

10. Foss Plating, Inc. has no parent corporation,

and no publicly held corporation owns ten percent

(10%) or more of its stock.

11. Halliburton Affiliates, LLC, a Delaware limited liability company, has 1,001 authorized shares

and 1,001 shares (100%) are issued to Halliburton

Swiss Holdings GmbH, a Switzerland limited liability

company; Halliburton Swiss Holdings GmbH has 20

authorized shares and 20 shares (100%) are issued to

Halliburton Global Affiliates Holdings B.V., a Netherlands corporation; Halliburton Global Affiliates Holdings B.V. has 90,000 authorized shares and 18,000

shares (100%) are issued to Halliburton Netherlands

Holdings B.V., a Netherlands corporation; Halliburton Netherlands Holdings B.V. has 90,000 authorized

shares and 18,001 shares (100%) are issued to Halliburton Global Netherlands Cooperatief U.A., a Netherlands corporation; Halliburton Global Netherlands

Cooperatief U.A. has 100 authorized shares and 100

shares (100%) are issued to Halliburton Curaçao

Holdings B.V., a Curacao corporation; Halliburton

Curaçao Holdings B.V. has 10,000 authorized shares

and 1,000 shares (100%) are issued to Halliburton International Holdings, a Bermuda exempted general

partnership; Halliburton International Holdings has

300,227,184 partnership interests and 297,225,011

partnership interests (99%) are issued to Halliburton

Worldwide Holdings Limited, a Cayman Islands corporation, and 3,002,173 partnership interests (1%) are

issued to Halliburton HIH Holdings, LLC, a Delaware

limited liability company; Halliburton HIH Holdings,

LLC has 1,000 authorized shares and 1,000 shares

(100%) are issued to Halliburton Worldwide Holdings

Limited; Halliburton Worldwide Holdings Limited

has 5,000,000 authorized shares and 1 share (100%)

is issued to Halliburton Global Holdings B.V., a Curacao limited liability company; Halliburton Global

Holdings B.V. has 1,051.989 authorized shares and

1,051.989 shares (100%) are issued to Halliburton

Global Holdings, LLC, a Delaware limited liability

company; Halliburton Global Holdings, LLC has

2,000 authorized shares and 1,051.989 shares (100%)

are issued to Halliburton U.S. International Holdings,

Inc., a Delaware corporation; Halliburton U.S. International Holdings, Inc. has 200,000 authorized shares

and 153,652 shares (100%) are issued to Halliburton

Holdings, LLC, a Delaware limited liability company;

and Halliburton Holdings, LLC has 1,000 authorized

shares and 1,000 shares (100%) are issued to the Company.

12. Kekropia, Inc. has no parent corporation, and

no publicly held corporation owns ten percent (10%) or

more of its stock.

13. Palley Supply Company has no parent corporation, and no publicly held corporation owns ten percent (10%) or more of its stock.

14. Prologis, a Maryland real estate investment

trust, holds 80% of the common shares of DefendantAppellee Palmtree Acquisition Corporation and Prologis Fraser, L.P., a Delaware limited partnership,

holds twenty percent (20%) of the common shares.

Prologis is an indirect subsidiary of Prologis, Inc., a

Maryland corporation, a publicly traded company.

15. Phibro-Tech, Inc. is a wholly owned subsidiary

of C P Chemicals, Inc., a New Jersey corporation. C P

Chemicals, Inc. is a wholly owned subsidiary of Phibro

Animal Health Corporation, a Delaware corporation

and publicly traded company.

16. Powerine Oil Company has no parent corporation, and no publicly held corporation owns ten percent (10%) or more of its stock.

xii

17. PMC Specialties Group, Inc. has no parent corporation, and no publicly held corporation owns ten

percent (10%) or more of its stock.

18. Union Pacific Railroad Company is a wholly

owned subsidiary of Union Pacific Corporation. Union

Pacific Corporation, a publicly traded company, owns

ten percent (10%) or more of its stock.

RELATED PROCEEDINGS

No other case is directly related to this one, within

the meaning of Rule 14.1(b)(iii), whether in state or

federal trial or appellate courts, or in this Court.

xiii

TABLE OF CONTENTS

Page

QUESTION PRESENTED......................................... i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT .............................................. ii

RELATED PROCEEDINGS ................................... xii

TABLE OF APPENDICES .................................... xiv

TABLE OF AUTHORITIES.................................... xv

PETITION FOR A WRIT OF CERTIORARI ........... 1

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

STATUTORY PROVISIONS INVOLVED ............... 1

STATEMENT OF THE CASE .................................. 1

A. Statutory Background .................................... 2

B. Factual Background ....................................... 3

C. Proceedings Below .......................................... 5

REASONS FOR GRANTING THE PETITION ....... 7

This case and Guam present the same

issue—what controls the application of

section 113: the text or “traditional

contribution principles”?..................................... 8

II. Because the text of section 113 displaces any

contrary purported “traditional” or “common

law” contribution principles, the Ninth

Circuit’s reliance on such principles conflicts

with this Court’s precedents. ............................ 12

III. The D.C. Circuit’s textualist analysis in

Guam is the better approach and would yield

xiv

clarity in the law and a different outcome in

this case. ............................................................ 13

Conclusion ............................................................... 19

TABLE OF APPENDICES

APPENDIX A: Opinion of the United States

Court of Appeals for the Ninth Circuit,

published at 969 F.3d 945 (9th Cir.

2020) ............................................................ App. 1

APPENDIX B: Order on Motion for Summary

Judgment regarding Statue of Limitations,

available at 2019 WL 398001 (C.D. Cal.

Jan. 15, 2019) (D.C. Dkt. 809) ................. App. 24

APPENDIX C: Final Judgment Pursuant to

Federal Rule of Civil Procedure 54(b)

(C.D. Cal. Feb. 4, 2019) (D.C. Dkt. 819) ... App. 74

APPENDIX D: Order of the United States

Court of Appeals for the Ninth Circuit

Denying Panel Rehearing and En Banc

Rehearing (9th Cir. Oct. 21, 2020)

(C.A. Dkt. 115) .......................................... App. 76

APPENDIX E: Statutory And Regulatory

Provisions Involved

42 U.S.C. § 9607 (CERCLA § 107)

(excerpt) ........................................ App. 77

42 U.S.C. § 9613 (CERCLA § 113)

(excerpt) ........................................ App. 78

TABLE OF AUTHORITIES

Cases

American Elec. Power, Inc. v. Connecticut,

564 U.S. 410 (2011)............................................ 8, 12

Atlantic Richfield Co. v. Christian,

140 S. Ct. 1335 (2020)............................................ 17

Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.,

710 F.3d 946 (9th Cir. 2013) ................................. 16

Franklin v. Kaypro Corp.,

884 F.2d 1222 (9th Cir. 1989) ............................... 10

Government of Guam v. United States, No.

20-382, 2021 WL 77250 (Jan. 8, 2021) ......... passim

Government of Guam v. United States, 950 F.3d

104 (D.C. Cir. 2020), cert. granted, No. 20-382,

2021 WL 77250 (Jan. 8, 2021) ................... 2, 8, 9, 17

In re Dawes,

652 F.3d 1236 (10th Cir. 2011).............................. 16

Key Tronic Corp. v. United States,

511 U.S. 809 (1994).................................................. i

Mobil Oil Corp. v. Higginbotham,

436 U.S. 618 (1978)...................................... 8, 12, 13

Nw. Airlines, Inc. v. Transp. Workers,

451 U.S. 77 (1981).................................................. 10

Rodriguez v. Federal Deposit Ins. Corp.,

140 S. Ct. 713 (2020).............................................. 19

xvi

Stutson v. United States,

516 U.S. 163 (1996)..................................................8

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981)................................................ 10

United States v. Atl. Research Corp.,

551 U.S. 128 (2007)...................................... 7, 11, 16

United States v. Bestfoods,

524 U.S. 51 (1998).................................................. 13

Statutes

Superfund Amendments and Reauthorization

Act of 1986, Pub. L. No. 99-499, 100 Stat.

1613 ......................................................................... i

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

42 U.S.C. §§ 9601-9675 ........................................... i

28 U.S.C. § 1254(1) ......................................................1

28 U.S.C. § 1331 ..........................................................5

42 U.S.C. § 9607 ...................................................... 1, 2

42 U.S.C. § 9613 ...................................................... 1, 2

CERCLA, § 107(a)(4)(B)

(42 U.S.C. § 9607(a)(4)(B)) ............................... 2, 15

CERCLA, § 113(f)(1)

(42 U.S.C. § 9613(f)(1)) ............................ 2, 9, 12, 14

xvii

CERCLA, § 113(f)(3)(b)

(42 U.S.C. § 9613(f)(3)(b)) ........................................9

CERCLA, § 113(g)(3)

(42 U.S.C. § 9613(g)(3)) ................................. passim

Rules

Fed. R. App. P. Rule 28(j) .......................................... 14

Sup. Ct. R. 10(a) ..........................................................8

Sup. Ct. R. 10(c) ...........................................................8

Sup. Ct. R. 14.1(b)(iii)............................................... xii

Other Authorities

Brief for Petitioner at 20–22, Government of

Guam v. United States, No. 20-382

(filed Feb. 22, 2021) .......................................... 7, 10

Contribution, Black’s Law Dictionary 402

(10th ed. 2014) ...................................................... 11

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the Ninth Circuit is reported at 969

F.3d 945 and reproduced at Petitioners’ Appendix

(“Pet. App.”) 1–23. The order of the district court

granting summary judgment is not reported but is

available at 2019 WL 398001 and is reproduced at Pet.

App. 24–75.

JURISDICTION

The Ninth Circuit entered its judgment on August

10, 2020, and denied petitioners’ timely petition for

rehearing and rehearing en banc on October 21, 2020.

Pet. App. 76. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions at issue are section 107

of CERCLA (42 U.S.C. § 9607) and section 113 of CERCLA (42 U.S.C. § 9613). Relevant portions of those

provisions are reproduced at Pet. App. 77–83.

STATEMENT OF THE CASE

This case asks whether a settlement triggers the

three-year statute of limitations to bring a contribution claim under CERCLA—a question presented in

the petition the Court recently granted in Guam. See

Government of Guam v. United States, No. 20-382,

2021 WL 77250 (Jan. 21, 2021). The courts of appeals

are split in several ways, as the petition in Guam explains. The disagreements extend to both how to answer the question and the answers themselves. The

decision of the D.C. Circuit in Guam represents one

end of the spectrum of approaches. See Gov’t of Guam

v. United States, 950 F.3d 104 (D.C. Cir. 2020), cert.

granted, No. 20-382 (Jan. 8, 2021). The decision of the

Ninth Circuit below represents the opposite end of

that spectrum. The crux of the disagreement is a judgment about the primacy of CERCLA’s text. Here, as in

Guam, whether to follow the text is outcome-determinative.

A. Statutory Background

Section 113(f)(1) of CERCLA 1 grants “any person”

a statutory contribution claim against any other person who is liable or potentially liable under section

107 during or following any civil action under section

106 for a “response action” or under section 107 for

“response costs.”

Section 107(a)(4)(B) of CERCLA defines “response

costs” as “necessary costs of response incurred by

any … person consistent with the national contingency plan.”

Section 113(g)(3) of CERCLA establishes the limitations period for bringing such contribution claims.

“No action for contribution for any response costs or

damages may be commenced more than three years

References to CERCLA sections are commonly to the sections

of the Act. As noted, section 107 of CERCLA is codified at 42

U.S.C. § 9607, and section 113 of CERCLA is codified at 42

U.S.C. § 9613.

after … a judicially approved settlement with respect

to such costs or damages.”

B. Factual Background

From 1971 to 1991, the Omega Chemical Corporation operated a solvent “recycling” plant in Whittier,

California. Respondents (who often refer to themselves as “OPOG”) and others (who will be referred to

as Small Potentially Responsible Parties or Small

PRPs) arranged to have millions of gallons of spent

solvents handled at Omega Chemical’s plant. In 1991,

the State of California brought a civil action against

Omega Chemical that resulted in a court order requiring that operations cease and the plant be closed.

Groundwater contamination caused by releases of

solvents from the Omega Chemical plant, first detected in 1983, now exists in an area that is more than

four miles long and nearly a mile wide. 2

In 2000, the United States sued OPOG under

CERCLA sections 106 and 107 to clean up releases

from the plant. The members of OPOG were identified

in the complaint as parties liable under section 107 for

the cost of cleaning up those releases and under 106

for taking response actions.

As a result, in 2001 OPOG agreed to a partial consent decree to reimburse the United States for certain

response costs and to clean up a very limited area of

For the Court’s convenience and for illustrative purposes only,

see the Environmental Protection Agency’s website on the

Omega Superfund site, https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0903349).

environmental contamination in the immediate vicinity of Omega Chemical’s plant. That consent decree

included a covenant from the United States not to sue

OPOG. But, consistent with the consent decree’s partial nature, the covenant applied only to the environmental impacts successfully addressed by the work to

be performed under the consent decree.

In 2004, OPOG brought a contribution action

against other companies that had sent lesser volumes

of spent solvents to the plant, the Small PRPS, but

were not contributing to cleanup costs. Because the

Small PRPs were also liable under section 107 of CERCLA for the cost of cleaning up releases from the

plant, they shared with OPOG a common liability. But

OPOG’s contribution lawsuit was not limited to the

money already spent or obligations OPOG had already undertaken in implementing the 2001 partial

consent decree. OPOG instead sought to have the

Small PRPs share in all sums that OPOG had spent

and would spend on the cleanup process.

In 2007, a judicially approved settlement resolved

the 2004 action. The Small PRPs paid money to

OPOG. In exchange, OPOG agreed to assume responsibility for the Small PRPs’ common liability for all

costs related to groundwater contamination attributed to Omega Chemical’s plant. And by the settlement’s terms that liability was limited neither geographically nor by what governmental entity brought

an action for remediation. That newly assumed responsibility was far more expansive than the undertakings covered by the 2001 partial consent decree.

In 2014, OPOG sued petitioners, who had not sent

spent solvents to the plant but who OPOG claimed

were nevertheless potentially liable under section 107

for contribution to recover some of the costs of groundwater cleanup downgradient of Omega Chemical’s

plant. 3 The 2014 action sought costs that were the

subject of the 2004 action and the 2007 settlement.

The 2014 action is the current lawsuit from which this

petition arises. 4

In 2017, OPOG entered into another consent decree with the United States, agreeing to conduct the

cleanup that was a subject of the 2004 and 2014 contribution actions.

In 2021, the cleanup required by the 2017 consent

decree has yet to begin. The plume of contamination

associated with Omega Chemical’s plant now

stretches four miles. Yet in the thirty-eight years

since groundwater was first found to have been contaminated by releases from Omega Chemical’s plant,

remediation has occurred only in an area limited to a

few hundred feet from the plant’s boundaries.

C. Proceedings Below

In this action, petitioners moved for summary

judgment on the ground that OPOG did not file its

claim within the applicable statute of limitations.

Petitioners own or operate facilities (or formerly owned and operated) overlying groundwater located in the vicinity of an area

downgradient (that is away from Omega Chemical’s plant) and

thought to be contaminated by releases of spent solvents from

that plant. OPOG claims that releases from these facilities,

which are being independently remediated by petitioners, have

contaminated groundwater in the area that might also be contaminated by releases from Omega Chemical’s plant.

The district court had federal-question jurisdiction under 28

U.S.C. § 1331.

Pointing to CERCLA section 113(g)(3), petitioners argued that when OPOG settled its 2004 contribution

claim in 2007 and it was judicially approved, the

three-year statute of limitations to bring all other contribution claims began to run.

The district court granted petitioners’ motion. Pet.

App. 24–73. According to that court, OPOG being sued

in the 2000 action brought by the United States under

sections 106 and 107 of CERCLA authorized OPOG’s

2004 contribution lawsuit. That lawsuit, in turn,

sought to impose liability on the Small PRPs for all

costs to clean up groundwater contaminated by releases from Omega Chemical’s plant, not just the limited costs addressed in the 2001 consent decree. In the

district court’s view, the text of section 113(g)(3) compelled the conclusion that the 2007 judicially approved settlement started the three year statute of

limitations for OPOG to seek contribution from all

other parties it believed potentially liable for the costs

addressed in its settlement with the Small PRPs not

covered by the 2001 consent decree. The 2014 contribution action was thus too late.

OPOG appealed the grant of summary judgment,

and the Ninth Circuit reversed. Pet. App. 1–23. The

court acknowledged, but rejected, the admittedly “capacious” meaning of section 113(g)(3)’s text in favor of

“context,” “policy,” and “basic precepts of common law

contribution.” It concluded that the 2007 judicially approved settlement covering all the costs sought in the

2004 action did not perfect a contribution claim

against petitioners for the same costs and trigger the

three-year statute of limitations. According to the

Ninth Circuit, that conclusion was mandated by the

“common-law,” which ostensibly requires, for a contribution claim to exist, that liability be both “imposed”

and “paid” rather than assumed and accepted. In the

Ninth Circuit’s view, neither condition was satisfied

by the 2007 settlement.

Petitioners sought panel and en banc rehearing,

which were denied. Pet. App. 76.

REASONS FOR GRANTING THE PETITION

The Court has already granted the petition in

Guam, which lays out: (i) the Court’s history of attention to CERCLA issues, (ii) the continuing disagreements in the circuits about CERCLA contribution,

and (iii) the exceptional importance of CERCLA contribution disputes both in terms of achieving Congressional objectives and the amounts of money involved.

The parties’ arguments in Guam include a continuing point of contention about when a claim for contribution under CERCLA has been perfected, thus

triggering the statute of limitations. To support its assertion that “traditional contribution principles” override the text of section 113, the Government of Guam

relies heavily on dicta from a decision of this Court

noting that Congress presumably used the word “contribution” in CERCLA in its “traditional sense”

United States v. Atl. Rsch. Corp., 551 U.S. 128, 138

(2007). See Brief for Petitioner at 20–22, Government

of Guam v. United States, No. 20-382 (filed Feb. 22,

2021) (Guam Op. Br.). The Ninth Circuit’s decision below likewise used ostensible “basic precepts of common law contribution” as the basis for not enforcing

the natural meaning of CERCLA’s text in favor of “policy” that the court thought most sensible. Pet. App.

13–19, 23. The D.C. Circuit, by contrast, relied on the

text and not the supposed traditional contribution

principles that the Government of Guam now insists

should control. Guam, 950 F.3d at 113–18. The D.C.

Circuit was right and the Ninth Circuit was wrong.

Even assuming the existence of “basic precepts of

common law contribution,” they would have no application when displaced by a statue that speaks directly

to how and when a claim for contribution must be asserted. Am. Elec. Power, Inc. v. Connecticut, 564 U.S.

410, 422–25 (2011); Mobil Oil Corp. v. Higginbotham,

436 U.S. 618, 625 (1978). The D.C. Circuit’s opinion

relying on the text of section 113 is in accord with

those decisions. The Ninth Circuit’s decision is not.

In short, the Ninth Circuit “entered a decision in

conflict with the decision of another United States

Court of Appeals on the same important matter,” Sup.

Ct. R. 10(a), and simultaneously “decided an important federal question in a way that conflicts with

relevant decisions of this Court,” Sup. Ct. R. 10(c). Because the decision in Guam will be outcome determinative in this case, holding this petition pending a decision in Guam, at a minimum, is warranted. See, e.g.,

Stutson v. United States, 516 U.S. 163, 181 (1996)

(Scalia, J., dissenting) (“We regularly hold cases that

involve the same issue as a case on which certiorari

has been granted….”).

I. THIS CASE AND GUAM PRESENT THE SAME ISSUE—

WHAT CONTROLS THE APPLICATION OF SECTION

113: THE TEXT OR “TRADITIONAL CONTRIBUTION

PRINCIPLES”?

The Ninth Circuit relying on common law precepts decided in this matter that the judicial approval

of a settlement agreement of a contribution action authorized by section 113(f)(1), which was judicially approved, was not “with respect to” response costs.

Those common law precepts supposedly required that

the settlement agreement involve a liability established or existing, or in the Ninth Circuit’s words “imposed” or “paid,” outside the agreement. Id. at 11, 13,

14, 17, 18. According to the Ninth Circuit neither condition was met. As a result, according to the Ninth

Circuit, the statute of limitations found in section

113(g)(3) was not triggered.

On the other hand, in Guam, the D.C. Circuit used

the text of 113 to determine what liability is described

by the phrase “resolved its liability” in section

113(f)(3)(B) of CERCLA, and to decide when that liability was “resolved.” See Guam, 950 F.3d at 114–16.

That analysis was needed to confirm the three-year

statute of limitations in section 113(g)(3) had passed.

Id.

The court turned to a dictionary and concluded

that the liability that could invoke section 113(f)(3)(b)

and, if resolved, require that contribution actions be

brought within three years, was an obligation to do

something that would be considered a “response action” under CERCLA. Id. at 115–17. It was not necessary, however, that such an obligation be the result of

a CERCLA claim. Id. The court then concluded that

because the dictionary defines “resolved” as “decided,

determined, or settled,” an agreement with the Environmental Protection Agency (EPA) that in substance

decided, determined, or settled what response action

was required at a site “resolved” the settling party’s

liability even if no money had been paid. Id.

The Government of Guam, pointing to contrary

decisions of other courts of appeals, asks the Court to

overturn the D.C. Circuit’s holdings, because CERCLA’s text must be glossed with what it refers to as

“[t]he traditional understanding of the ‘contribution’

remedy” and “traditional principles” of contribution.

Guam Op. Br. at 14–15, 20–21, 34–35, 39–40. Under

that “understanding” and those “principles” the

phrase “resolves its liability” means an agreement

with EPA that “conclusively deals with or decides that

party’s preexisting liability to undertake a response

action or pay response costs” as a result of a 106 or

107 action under CERCLA. Id. at 41. Compare id.

with Pet. App. 17–18.

In this case the Ninth Circuit deployed the same

analysis now relied on by the Government of Guam

but with different words: “basic precepts of commonlaw contribution.” Pet. App. 23. Regardless of the

words used to describe the approach, its use is a fundamental—and a consequential—mistake.

No “traditional principles” of contribution exist,

nor is there a “common law” of contribution. “[T]he

common law provided no right to contribution among

joint tortfeasors.” Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 634 (1981); accord Nw. Airlines, Inc. v. Transp. Workers, 451 U.S. 77, 86 (1981)

(“At common law there was no right to contribution

among joint tortfeasors.”). “In short, contribution was

not part of the early American common law, and in

fact was actively disapproved by the courts. It has

been resurrected jurisdiction by jurisdiction” almost

always by statute. Franklin v. Kaypro Corp., 884 F.2d

1222, 1227 (9th Cir. 1989). Rather than being an es-

tablished and consistent body of common law principles, “[c]ontribution … is a statutory deviation from

the common law.” Id. at 1232.

This Court’s statement in dicta in United States v.

Atlantic Research Corp., 551 U.S. 128, 138 (2007), that

“[n]othing in § 113(f) suggests that Congress used …

‘contribution’ in anything other than [its] traditional

sense,” is not to the contrary. The Court, faced with a

statutory word not defined by the statute itself, looked

to a legal-dictionary definition to find the word’s ordinary legal meaning. Id. The Court quoted a definition

describing contribution in the tort context. Id. It could

just as easily have quoted the definition from the same

legal dictionary at the next highest level of generality:

“the right to demand that another who is jointly responsible for a third party’s injury supply part of what

is required to compensate the third party. Also termed

right of contribution.” Contribution, Black’s Law Dictionary 402 (10th ed. 2014). And the Court did in fact

note that the purpose of contribution in CERCLA was

to address “an inequitable distribution of common liability among liable parties.” 551 U.S. at 138–39.

But fixing the meaning of a word is a long way

from the Court saying federal courts are free to rewrite section 113 based on state contribution statutes,

judicial decisions construing those statutes, or legal

treatises that distill principles from state contribution

statutes and decisions. It is, therefore, wrong to argue,

as the Government of Guam does and the Ninth Circuit holds, that Congress had in mind the application

of some broad “traditional principles of contribution”

to section 113 simply because it used the word “contribution.”

II. BECAUSE THE TEXT OF SECTION 113 DISPLACES

ANY CONTRARY PURPORTED “TRADITIONAL” OR

“COMMON LAW” CONTRIBUTION PRINCIPLES, THE

NINTH CIRCUIT’S RELIANCE ON SUCH PRINCIPLES

CONFLICTS WITH THIS COURT’S PRECEDENTS.

As the Court has recognized, a statute completely

displaces the common law when it “‘speaks directly to

the question’ at issue.” Am. Elec. Power, Inc. v. Connecticut, 564 U.S. 410, 422–25 (2011) (quoting Mobil

Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)).

That is exactly what Congress did when it established

a comprehensive set of rules in section 113 to control

how and when a contribution claim is brought and the

effect of resolving such a claim. In particular:

•

Subsection (f)(1) specifies that a contribution claim exists during or following a section 106 or 107 action.

•

Subsection (f)(1) also specifies that the contribution claim “shall be brought in accordance with this section … and shall be governed by Federal law.” (emphasis added).

•

Subsection (g)(3) specifies when the subsection 113(f)(1) or (f)(3)(B) claim is perfected

and triggers the statute of limitations.

•

Subsections (f)(2) and (f)(3) provide the effects of settling the claim for contribution allowed in subsection (f)(1).

•

Subsection (h)(1) ensures that a federal

court will have jurisdiction to judicially review a removal or remedial action related to

a claim for contribution.

In other words, regardless of how the word “contribution” is defined, section 113, and only that section, sets forth the rules for how a claim for contribution “shall be brought”—that is, the procedures for determining the manner in which common liability for a

single harm will be shared under CERCLA. And it

does so in a fashion that recognizes and combines the

various unique moving parts of CERCLA in a specific

and easily applied manner. That synergism is lost if

the text is supplemented or replaced with amorphous

“traditional principles of contribution.” In section 113,

Congress has “spoken directly” to how CERCLA contribution works. 5

III. THE D.C. CIRCUIT’S TEXTUALIST ANALYSIS IN

GUAM IS THE BETTER APPROACH AND WOULD

YIELD CLARITY IN THE LAW AND A DIFFERENT OUTCOME IN THIS CASE.

In Guam, as in this case, the court has to decide if

a party entering into a judicially approved settlement

agreement that included the assumption of future obligations for response costs had three years to bring

contribution actions. In both cases whether the statute of limitations had been triggered turned on

whether a liability (the party’s assumption of obligations) “resolved” (in Guam) or was “with respect to”

(here) a liability for response costs or actions. Hewing

That is not to say the common law can never be useful in interpreting CERCLA. Where gaps exist in the statute, crafting federal common law or borrowing state law may be appropriate.

United States v. Bestfoods, 524 U.S. 51, 64 & n.9 (1998). But

“[t]here is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted.” Mobil Oil, 436 U.S. at 625.

to CERCLA’s text, the D.C. Circuit answered that

such a “liability” existed and had been “resolved.”

The D.C. Circuit’s approach differs markedly from

the Ninth Circuit’s because the latter selectively imported into section 113(g)(3) ostensible “basic precepts

of common law contribution.” And as usually happens,

rejection of the text led the Ninth Circuit to a different

result than the D.C. Circuit. The Government of

Guam now asks the Court to reverse the D.C. Circuit

by employing the same analysis the Ninth Circuit

used. But the Ninth Circuit’s approach was wrong,

and the Government of Guam’s approach is wrong. 6

The three-year statute of limitations in section

113(g)(3) may be triggered by satisfying two conditions. The first is a condition precedent—being sued

under sections 106 or 107 of CERCLA. The second is

the perfection of a right to contribution—a judicially

approved settlement “with respect to” response costs.

Both conditions are satisfied here. In 2000, the

United States sued OPOG under both sections 106

and 107. The condition precedent is met.

In 2004, OPOG pleaded that it had a contribution

claim under section 113(f)(1) (based on the 2000 complaint) against the Small PRPs, which OPOG said

Petitioners brought Guam to the attention of the Ninth Circuit

after oral argument, in a Fed. R. App. P. Rule 28(j) letter explaining that the D.C. Circuit’s recent opinion supported affirmance

of the district court’s decision. Guam is not mentioned in the

Ninth Circuit’s opinion. Paradoxically, the United States, as

amici, supported the Ninth Circuit’s policy-based approach in

this case while simultaneously supporting the D.C. Circuit’s textualist approach in Guam.

were liable or potentially liable under section 107. In

that action, OPOG asked that the Small PRPs share

in all response costs at the Omega Chemical site in

addition to the costs of complying with the partial consent decree.

In 2007 that contribution action was resolved in a

judicially approved settlement. OPOG agreed to assume the joint and several liability of the Small PRPs

(for the costs sought to be shared in the 2004 action).

The Small PRPs agreed to pay OPOG an amount representing a share of all response costs at the Omega

Site. In other words, the 2007 judicially approved settlement was with respect to the response costs sought

in the 2004 contribution action, which were all costs.

The judicial approval of the settlement meant that the

Small PRPs were, in fact, paying their fair share of

future response costs that at the time were agreed to

and approved by the court to be properly recoverable.

OPOG argued below, as the Government of Guam

does now, that the settlements in question did not establish its CERCLA liability; in other words, its “liability” did not exist nor was it “with respect to” (“resolved” in Guam) response costs so there was no perfected right to contribution. But here, as in Guam, deciding whether a settlement is “with respect to” response costs (were “resolved”) requires looking no further than section 107(a)(4)(B), which states that for a

party to be liable for “costs of response” (that is, “response costs”) the costs need only have been “incurred.”

As with the word “contribution,” it has been recognized—including by then-Judge Gorsuch writing

for the Tenth Circuit—that the word “incurred” has “a

definition that is as well-settled as it is precise …

Black’s Law Dictionary tells us that to ‘incur’ means

to ‘suffer or bring on oneself,’ as in a ‘liability or expense.’ Black’s Law Dictionary 782 (8th ed. 2004).” In

re Dawes, 652 F.3d 1236, 1239 (10th Cir. 2011) (emphasis added); accord Chubb Custom Ins. Co. v. Space

Sys./Loral, Inc., 710 F.3d 946, 961 (9th Cir. 2013) (citing same definition in CERCLA case). Response costs

thus need not be, as in tort litigation, damages that

“the tortfeasor has paid,” Pet. App. 11, or that have

been “imposed” by a court judgment or settlement, id.

at 11, 13–14, 17 & n.5, 18. 7

Here OPOG, by virtue of the 2007 settlement,

brought on itself liability for all response costs at the

Omega Chemical site. The 2004 lawsuit was a contribution action for response costs that was resolved

through a judicially approved settlement. Once that

settlement was judicially approved, under the plain

text of section 113(g)(3) a claim for contribution for the

costs incurred by respondents in the 2007 settlement

was perfected against all others that were liable or potentially liable for sharing those costs. Accordingly,

the second condition was met, and the three-year statute of limitations for suing those parties, including petitioners, was triggered.

Yet the Ninth Circuit rejected that result, just as

the Government of Guam asks this Court to reject the

textual conclusion of the D.C. Circuit about section

113. As discussed above, it did so based on perceived

This analysis thus answers “Yes” the question left open in Atlantic Research, 551 U.S. at 139 n.6: For a right of contribution

to exist is it sufficient that a party has, in a judicially approved

settlement, assumed an obligation to undertake future response

actions?

“common law” requirements for contribution in the

tort context.

That conclusion suffers from the same fatal error

found in the Government of Guam’s argument: atextual principles trump CERCLA’s directives regarding

the effect of a judicially approved settlement for “response costs” or “response actions”—concepts entirely

statutory and, arguably, unique to environmental

statutes. The events that perfect a contribution claim

and trigger the statute of limitations under CERCLA

section 113 have no predicate in “traditional” or supposed “common law” contribution. Those concepts can

play no role in determining when the CERCLA statute

of limitations begins to run. Contribution in tort cases,

which was the lodestar for the Ninth Circuit’s deviation from the text of section 113, arose from the dynamics of ordinary tort litigation. Settlements, on the

other hand, are the “heart” of CERCLA. Atl. Richfield

Co. v. Christian, 140 S. Ct. 1335, 1355 (2020).

The statutory rules in CERCLA section 113 for

seeking and obtaining contribution were designed to

encourage settlement and expedite either cleanups or

repayment of the costs incurred by United States. 8

The Ninth Circuit’s approach, by contrast, allows—

even incentivizes—those principally responsible for

polluting a site to pursue serial settlements a group or

a defendant at a time as was done here, yet never have

those actions trigger the three-year statute of limitations. By using that latitude to delay clean-ups while

they successively “pick off” other parties singly or in

The D.C. Circuit recognized this point when it noted that the

result it reached might be “harsh” as far as the Government of

Guam was concerned. Guam, 950 F.3d at 118.

groups, the principally responsible parties can amass

a war chest so large that it ultimately reduces the

costs they must pay out of their own funds for the

cleanup to below their true liability. At that point,

they can finally agree with the United States to take

action—mainly with other parties’ money. That is

what has happened at the Omega Chemical site: 38

years after groundwater contamination was discovered, remediation has not progressed more than few

hundred feet in a plume that is now four miles long.

And how much, if any, of its own money respondents

have spent is unclear.

If OPOG had been required to bring all of its contribution claims within three years of 2007, it would

have been forced to promptly agree on a remedy, to

promptly focus on the amount of liability to share, to

promptly complete its investigation of all potentially

responsible parties connected with the contamination,

and in shorter order encourage (through threat of litigation) those parties to allocate among themselves

the cost of any common liability. At that point there

would be no reason to delay a cleanup.

Review is needed—in Guam and in this case—to

ensure that the CERCLA-specific rules of contribution

work as Congress specified in section 113. A party has

three years to bring all contribution claims based on

liability that is accepted or undertaken “with respect

to” or “resolved” as to response costs or actions

through a judicially approved settlement. Following

the text provides clear directions that can be applied

easily to a wide range of factual situations. The Ninth

Circuit’s approach allows courts to diverge from the

text based on judges’ views of what is good policy or

the “equities”: after all, “common law” describes a legal system in which judges rather than legislators

make policy choices. See Rodriguez v. Fed. Deposit Ins.

Corp., 140 S. Ct. 713, 717 (2020) (“Judicial lawmaking

in the form of federal common law plays a necessarily

modest role under a Constitution that vests the federal government’s ‘legislative Powers’ in Congress….”). Applying the text-based analysis used by

the D.C. Circuit confirms the wisdom of the congressional policy choices reflected in the natural meaning

of CERCLA’s text.

CONCLUSION

The petition for a writ of certiorari should be

granted or at least held pending the Court’s decision

in Guam for appropriate disposition thereafter.

Respectfully submitted,

JAMES BRIGGS HARRIS

Counsel of Record

STEPHEN F. FINK

THOMPSON & KNIGHT LLP

1722 Routh Street

Suite 1500

Dallas, Texas 75201

(214) 969-1700

james.harris@tklaw.com

stephen.fink@tklaw.com

CHRISTOPHER G. FOSTER

One South Orange Grove

Boulevard No.2

Pasadena, CA 91105

(626) 799-4950

cfoster910@gmail.com

Counsel for APC Investment

Co., Associated Plating

Company, Associated Plating Company, Inc., Gordon

E. McCann, Lynnea R.

McCann, Darrell K.

Golnick, Clare S. Golnick,

and Cheryl A. Golnick

TAMMY M. HONG

DEMETRIOU, DEL GUERCIO,

SPRINGER & FRANCIS, LLP

915 Wilshire Boulevard

Suite 2000

Los Angeles, CA 90017

(213) 624-8407

tmjhong@ddsffirm.com

Counsel for Earl Mfg. Co.

and Claudette Earl

GREGORY J. PATTERSON

MUSICK, PEELER & GARRETT LLP

2801 Townsgate Road

Suite 200

Westlake Village, CA

91361

(805) 418-3103

g.patterson@mpglaw.com

Counsel for Bodycote Thermal Processing, Inc.

EARL L. HAGSTRÖM

DANIEL TROWBRIDGE

BASSI EDLIN HUIE & BLUM

LLP

500 Washington Street

Suite 700

San Francisco, CA 94111

(415) 397-9006

ehagstrom@behblaw.com

dtrowbridge@behblaw.com

JORDAN N. GRAY

GENERAL COUNSEL

PMC GLOBAL, INC.

12243 Branford Street

Sunnyvale, CA 91352

(818) 896-1101

jordangray@pmcglobalinc.com

Counsel for Ferro Corp.

and PMC Specialties

Group, Inc.

MICHAEL E. GALLAGHER, JR.

BASSI, EDLIN, HUIE & BLUM

LLP

515 South Flower Street

Suite 1020

Los Angeles, CA 90071

(213) 412-2661

mgallagher@behblaw.com

FARHEENA A. HABIB

BASSI EDLIN HUIE & BLUM

LLP

500 Washington Street

Suite 700

San Francisco, CA 94111

(415) 397-9006

fhabib@behblaw.com

Counsel for Interveners

Fireman’s Fund Insurance

Company; Federal Insurance Company, as Insurers

for Palley Supply Company

WILLIAM D. WICK

ANNA L. NGUYEN

WACTOR & WICK LLP

3640 Grand Avenue

Suite 200

Oakland, CA 94610

(510) 465-5750

anguyen@ww-envlaw.com

bwick@ww-envlaw.com

Counsel for Halliburton Affiliates, LLC

MEGAN S. MEADOWS

JENNIFER F. NOVAK

LAW OFFICE OF JENNIFER

F. NOVAK

500 Silver Spur Road,

Suite 206

Rancho Palos Verdes, CA

90275

(310) 693-0775

megan@jfnovaklaw.com

novak@jfnovaklaw.com

Counsel for Foss Plating

Company, Inc.

VICTOR J. OTTEN

OTTEN LAW, PC

5857 Pine Avenue

Suite B

Chino Hills, CA 91709

(310) 378-8533

vic@ottenlawpc.com

Counsel for Kekropia, Inc.

ROBERT P. DOTY

COX, CASTLE & NICHOLSON

LLP

50 California Street

Suite 3200

San Francisco, CA 94111

(415) 262-5100

rdoty@coxcastle.com

CATHY T. MOSES

COX, CASTLE & NICHOLSON

LLP

3121 Michelson Drive

Suite 200

Irvine, CA 92612

(949) 260-4600

cmoses@coxcastle.com

ZACHARY WALTON

ROBERT B. MARTIN, III

SSL LAW FIRM LLP

505 Montgomery Street

Suite 620

San Francisco, CA 94111

(415) 814-6400

zack@ssllawfirm.com

rob@ssllawfirm.com

Counsel for Phibro-Tech,

Inc. and First Dice Road

Company, Inc.

DAVID R. ISOLA

STEPHEN B. ARDIS

ISOLA LAW GROUP, LLP

405 West Pine Street

Lodi, CA 95240

(209) 367-7055

disola@isolalaw.com

sardis@isolalaw.com

DAVID E. CRANSTON

PETER A. NYQUIST

SEDINA L BANKS

SHERRY E. JACKMAN

GREENBERG GLUSKER

FIELDS CLAMAN & MACHTINGER LLP

2049 Century Park East,

Suite 2600

Los Angeles, CA 90067

(310) 785-6897

dcranston@ggfirm.com

PNyquist@ggfirm.com

sbanks@ggfirm.com

sjackman@ggfirm.com

Counsel for Powerine Oil

Company

Counsel for Union Pacific

Railroad Company

Counsel for Palmtree Acquisition Corp.

Dated: March 22, 2021.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.