Reply Brief — United States v. Atlantic Research Corp.

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No. 06-562 . SuPaci*

In the Supreme Court of the Anited States

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UNITED STATES OF AMERICA, PETITIONER

v.

ATLANTIC RESEARCH CORPORATIO®.

-

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 Gnited States

No. 06-562

UNITED STATES OF AMERICA, PETITIONER

Vv.

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

(1)

2

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, “[uJnder [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. 2la-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 “[iJt 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

3

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; ef. 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: 7.e., whether a potentially

responsible party can pursue an action against another

PRP under Section 107(a). See #.J. du Pont de Ne-

mours & Co. v. United States, petition for cert. pending,

No. 06-726 (filed Nov. 21, 2006) (DuPont); UG/ Utilities,

Inc. v. Consolidated Edison Co. of New York, Inc., peti-

tion for cert. pending, No. 05-1323 (filed Apr. 14, 2006).'

' 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

4

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 UG/ 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.

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./. 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 “felach

department, agency, and instrumentality of the United States * * *

shall be subject to * * * this chapter in the same manner and to the

same extent, both precedurally and substantively, as any nongovern-

mental entity, including liability under [Section 107]").

5

Additionally, VG/ 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.’ 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./. 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

* 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 (/G/ adivanee any such argument in the court of appeals. See 05-1323

U.S. Br. 13.