Appendix — In re Cooper Industries, Inc.

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SUPREME COURT OF THE

UNITED STATES

No. 02-1192

COOPER INDUSTRIES, INC.,

PETITIONER v. AVIALL

SERVICES, INC.

543 U.S. (2004)

October 6, 2004, Argued

December 13, 2004, Decided

JUSTICE THOMAS delivered the opinion of the Court.

Section 113(f)(1) of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980

(CERCLA)? allows persons who have undertaken efforts to

clean up properties contaminated by hazardous substances to

seek contribution from other parties liable under CERCLA.

Section 113(f)(1) specifies that a party may obtain

contribution "during or following any civil action" under

CERCLA § 106 or § 107(a). The issue we must decide is

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. We hold that it may not.

5 Section 113(f(1) is codified at 42 U.S.C. § 9613(f)(1). We refer

throughout, for the most part, to sections of CERCLA rather than the U.S.

Code.

2a

I

Under CERCLA, 94 Stat. 2767, the Federal Government

may clean up a contaminated area itself, see § 104, or it may

compel responsible parties to perform the cleanup, see

§ 106(a). See Key Tronic Corp. v. United States, 511 U.S.

809, 814, 128 L. Ed. 2d 797, 114 S. Ct. 1960 (1994). In

either case, the Government may recover its response costs

under § 107, 42 U.S.C. § 9607 (2000 ed. and Supp. 1), the

"cost recovery" section of CERCLA. Section 107(a) lists four

classes of potentially responsible persons (PRPs) and

provides that they "shall be liable" for, among other things,

"all costs of removal or remedial action incurred by the

United States Government . . . not inconsistent with the

national contingency plan." § 107(a)(4)(A).© Section 107(a)

further provides that PRPs shall be liable for "any other

necessary costs of response incurred by any other person

consistent with the national contingency plan."

§ 107(a)(4)(B).

After CERCLA's enactment in 1980, litigation arose over

whether § 107, in addition to allowing the Government and

certain private parties to recover costs from PRPs, also

allowed a PRP that had incurred response costs to recover

costs from other PRPs. More specifically, the question was

whether a private party that had incurred response costs, but

that had done so voluntarily and was not itself subject to suit,

had a cause of action for cost recovery against other PRPs.

Various courts held that § 107(a)(4)(B) and its predecessors

authorized such a cause of action. See, e.g., Wickland Oil

Terminals vy. Asarco, Inc., 792 F.2d 887, 890-892 (CA9

1986); Wallis v. Waste Resource Corp., 761 F.2d 311,

6 The national contingency plan specifies procedures for preparing and

responding to contaminations and was promulgated by the Environmental

Protection Agency (EPA) pursuant to CERCLA § 105, 42 U.S.C. § 9605

(2000 ed. and Supp. I). The plan is codified at 40 CFR pt. 300 (2004).

SEEGERS i SR COT

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317-318 (CA6 1985); Philadelphia v. Stepan Chemical Co.,

544 F. Supp. 1135, 1140-1143 (ED Pa. 1982).

After CERCLA's passage, litigation also ensued over the

separate question whether a private entity that had been sued

in a cost recovery action (by the Government or by another

PRP) could obtain contribution from other PRPs. As

originally enacted in 1980, CERCLA contained no provision

expressly providing for a right of action for contribution. A

number of District Courts nonetheless held that, although

CERCLA did not mention the word "contribution," such a

right arose either impliedly from provisions of the statute, or

as a matter of federal common law. See, e.g., United States v.

New Castle County, 642 F. Supp. 1258, 1263-1269 (Del.

1986) (contribution right arises under federal common law);

Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1486-1493

(Colo. 1985) (same); Wehner v. Syntex Agribusiness, Inc.,

616 F. Supp. 27, 31 (ED Mo. 1985) (contribution right is

implied from § 107(e)(2)). That conclusion was debatable in

light of two decisions of this Court that refused to recognize

implied or common-law rights to contribution in other federa!

statutes. See Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630, 638-647, 68 L. Ed. 2d 500, 101 S. Ct. 2061

(1981) (refusing to recognize implied or common-law right

to contribution in the Sherman Act or the Clayton Act);

Northwest Airlines, Inc. v. Transport Workers Union, 451

U.S. 77, 90-99, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981)

(refusing to recognize implied or common-law right to

contribution in the Equal Pay Act of 1963 or Title VII of the

Civil Rights Act of 1964).

Congress subsequently amended. CERCLA inthe

Superfund Amendments and Reauthorization Act of 1986

(SARA), 100 Stat. 1613, to provide an express cause of

action for contribution, codified as CERCLA § 113(f)(1):

"Any person may seek contribution from any

other person who is liable or potentially liable

4a

under section 9607(a) of this title, during or

following any civi! action under section 9606

of this title or under section 9607(a) of this

title. Such claims shall be brought in

accordance with this section and the Federal

Rules of Civil Procedure, and shall be

governed by Federal law. In_ resolving

contribution claims, the court may allocate

response costs among :.able parties using such

equitable factors as the court determines are

appropriate. Nothing in this subsection shall

diminish the right of any person to bring an

action for contribution in the absence of a civil

action under section 9606 of this title or

section 9607 of this title." /d., at 1647, as

codified in 42 U.S.C. § 9613(f)(1).

SARA also created a separate express right of contribution,

§ 113(f)(3)(B), for "[a] person who has resolved its liability

to the United States or a State for some or all of a response

action or for some or all of the costs of such action in an

administrative or judicially approved settlement." In short,

after SARA, CERCLA provided for a right to cost recovery

in certain circumstances, § 107(a), and separate rights to

contribution in other circumstances, §§ 113(f)(1),

113(f)(3)(B).’

7 In Key Tronic Corp. v. United States, 511 U.S. 809, 128 L. Ed. 2d 797,

114 S. Ct. 1960 (1994), we observed that § 107 and § 113 created

"similar and somewhat overlapping" remedies. Jd, 511 U.S. at 816, 128

L. Ed. 2d 797, 114 S. Ct. 1960. The cost recovery remedy of

§ 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are similar at a

general level in that they both allow private parties to recoup costs from

other private parties. But the two remedies are clearly distinct.

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II

This case concerns four contaminated aircraft engine

maintenance sites in Texas. Cooper Industries, Inc., owned

and operated those sites until 1981, when it sold them to

Aviall Services, Inc. Aviall operated the four sites for a

number of years. Ultimately, Aviall discovered that both it

and Cooper had contaminated the facilities when petroleum

and other hazardous substances leaked into the ground and

ground water through underground storage tanks and spills.

Aviall notified the Texas Natural Resource Conservation

Commission (Commission) of the contamination. The

Commission informed Aviall that it was violating state

environmental laws, directed Aviall to clean up the site, and

threatened to pursue an enforcement action if Aviall failed to

undertake remediation. Neither the Commission nor the EPA,

however, took judicial or administrative measures to compel

cleanup.

Aviall cleaned up the properties under the State's

supervision, beginning in 1984. Aviall sold the properties to

a third party in 1995 and 1996, but remains contractually

responsible for the cleanup. Aviall has _ incurred

approximately $ 5 million in cleanup costs; the total costs

may be even greater. In August 1997, Aviall filed this action

- against Cooper in the United States District Court for the

Northern District of Texas, seeking to recover cleanup costs.

The original complaint asserted a claim for cost recovery

under CERCLA § 107(a), a separate claim for contribution

under CERCLA § 113(f)(1), and state-law claims. Aviall

later amended the complaint, combining its two CERCLA

claims into a single, joint CERCLA claim. That claim alleged

that, pursuant to § 113(f)(1), Aviall was entitled to seek

contribution from Cooper, as a PRP under § 107(a), for

response costs and other liability Aviall incurred in

6a

connection with the Texas facilities. Aviall continued to

assert state-law claims as well.

Both parties moved for summary judgment, and the

District Court granted Cooper's motion. The court held that

Aviall, having abandoned its § 107 claim, sought

contribution only under § 113(f)(1). The court held that

§ 113(f)(1) relief was unavailable to Aviall because it had not

been sued under CERCLA § 106 or § 107. Having dismissed

Aviall's federal claim, the court declined to exercise

jurisdiction over the state-law claims.

A divided panel of the Court of Appeals for the Fifth

Circuit affirmed. 263 F.3d 134 (2001). The majority, relying

principally on the "during or following" language in the first

sentence of § 113(f)(1), held that "a PRP seeking

contribution from other PRPs under § 113(f)(1) must have a

pending or adjudged § 106 administrative order or § 107(a)

cost recovery action against it." Jd, at 145. The dissent

reasoned that the final sentence of § 113(f)(1), the saving

clause, clarified that the federal common-law right to

contribution survived the enactment of § 113(f)(1), even

absent a § 106 or § 107(a) civil action. Jd, at 148-150

(opinion of Wiener, J.).

On rehearing en banc, the Fifth Circuit reversed by a

divided vote, holding that § 113(f)(1) allows a PRP to obtain

contribution from other PRPs regardless of whether the PRP

has been sued under § 106 or § 107. 312 F.3d 677 (2002).

The court held that "[s]ection 113(f)(1) authorizes suits

8 Aviall asserts that it framed its claim in the manner compelled by Fifth

Circuit precedent holding that a § 113 claim is a type of § 107 claim.

Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917, 924 (CAS 2000);

see also, e.g., Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153

F.3d 344, 349-353 (CA6 1998); Sun Co., Inc. v. Browning-Ferris, Inc.,

124 F.3d 1187, 1191 (CA10 1997); Pinal Creek Group v. Newmont

Mining Corp., 118 F.3d 1298, 1301-1302 (CA9 1997).

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against PRPs in both its first and last sentence[,] which states

without qualification that 'nothing’ in the section shall

‘diminish’ any person's right to bring a contribution action in

the absence of a section 106 or section 107(a) action." /d., at

681. The court reasoned in part that "may" in § 113(f)(1) did

not mean "may only." /d., at 686-687. Three members of the

en banc court dissented for essentially the reasons given by

the panel majority. /d., at 691-693 (opinion of Garza, J.). We

granted certiorari, 540 U.S. 1099, 540 U.S. 1099, 157 L. Ed.

2d 811, 124 S. Ct. 981, and now reverse.

Il

A

Section 113(f)(1) does not authorize Aviall's suit. The

first sentence, the enabling clause that establishes the right of

contribution, provides: "Any person may _ seek

contribution ... during or following any civil action under

section 9606 of this title or under section 9607(a) of this

title," 42 U.S.C. § 9613 (f)(1) (emphasis added). The natural

meaning of this sentence is that contribution may only be

sought subject to the specified conditions, namely, "during or

following" a specified civil action.

Aviall answers that "may" should be read permissively,

such that "during or following" a civil action is one, but not

the exclusive, instance in which a person may seek

contribution. We disagree. First, as just noted, the natural

meaning of "may" in the context of the enabling clause is that

it authorizes certain contribution actions -- ones that satisfy

the subsequent specified condition -- and no others.

Second, and relatedly, if § 113(f)(1) were read to

authorize contribution actions at any time, regardless of the

existence of a § 106 or § 107(a) civil action, then Congress

need not have included the explicit "during or following"

condition. In other words, Aviall's reading would render part

of the statute entirely superfluous, something we are loath to

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do. See, e.g., Hibbs v. Winn, 542 U.S. _, __, 540 US.

1099, 157 L. Ed. 2d 811, 124 S. Ct. 982 (2004) (slip op., at

10). Likewise, if § 113(f)(1) authorizes contribution actions

at any time, § 113(f)(3)(B), which permits contribution ‘

actions after settlement, is equally superfluous. There is no ,

reason why Congress would bother to specify conditions

under which a person may bring a contribution claim, and at

the same time allow contribution actions absent those

conditions.

The last sentence of § 113(f)(1), the saving clause, does

not change our conclusion. That sentence provides: "Nothing

in this subsection shall diminish the right of any person to

bring an action for contribution in the absence of a civil

action under section 9606 of this title or section 9607 of this

title." 42 U.S.C. § 9613(f)(1). The sole function of the

sentence is to clarify that § 113(f)(1) does nothing to

"diminish" any cause(s) of action for contribution that may

exist independently of § 113(f)(1). In other words, the

sentence rebuts any presumption that the express right of

contribution provided by the enabling clause is the exclusive

cause of action for contribution available to a PRP. The

sentence, however, does not itself establish a cause of action;

nor does it expand § 113(f)(1) to authorize contribution

actions not brought "during or following" a § 106 or § 107(a)

civil action; nor does it specify what causes of action for

contribution, if any, exist outside § 113(f)(1). Reading the

saving clause to authorize § 113(f)(1) contribution actions

not just "during or following" a civil action, but also before

such an action, would again violate the settled rule that we

must, if possible, construe a statute to give every word some

operative effect. See United States v. Nordic Village, Inc.,

503 U.S. 30, 35-36, 117 L. Ed. 2d 181, 112 S. Ct. 1011

(1992).

Our conclusion follows not simply from § 113(f)(1)

itself, but also from the whole of § 113. As noted above,

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§ 113 provides two express avenues for contribution:

§ 113(f)(1) ("during or following" specified civil actions) and

§ 113(f)(3)(B) (after an administrative or judicially approved

settlement that resolves liability to the United States or a

State). Section 113(g)(3) then provides two corresponding 3-

year limitations periods for contribution actions, one

beginning at the date of judgment, § 113(g)(3)(A), and one

beginning at the date of settlement, § 113(g)(3)(B). Notably

absent from § 113(g)(3) is any provision for starting the

limitations period if a judgment or settlement never occurs,

as is the case with a purely voluntary cleanup. The lack of

such a provision supports the conclusion that, to assert a

contribution claim under § 113(f), a party must satisfy the

conditions of either § 113(f)(1) or § 113(f)(3)(B).

Each side insists that the purpose of CERCLA bolsters its

reading of § 113(f)(1). Given the clear meaning of the text,

there is no need to resolve this dispute or to consult the

purpose of CERCLA at all. As we have said: "It is ultimately

the provisions of our laws rather than the principal concerns

of our legislators by which we are governed." Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 140 L.

Ed. 2d 201, 118 S. Ct. 998 (1998). Section 113(f)(1), 100

Stat. 1647, authorizes contribution claims only "during or

following" a civil action under § 106 or § 107(a), and it is

undisputed that Aviall has never been subject to such an

action.? Aviall therefore has no § 113(f)(1) claim.

B

Aviall and amicus Lockheed Martin contend that, in the

alternative to an action for contribution under § 113(f)(1).,

9 Neither has Aviall been subject to an administrative order under § 106;

thus, we need not decide whether such an order would qualify as a "civil

action under section 9606 . . . or under section 9607(a)" of CERCLA. 42

U.S.C. § 9613(f(1).

10a

Aviall may recover costs under § 107(a)(4)(B) even though it

is a PRP. The dissent would have us so hold. We decline to

address the issue. Neither the District Court, nor the Fifth

Circuit panel, nor the Fifth Circuit sitting en banc considered

Aviall's § 107 claim. In fact, as noted above, Aviall included

separate § 107 and § 113 claims in its original complaint, but

then asserted a "combined" § 107/ § 113 claim in its

amended complaint. The District Court took this

consolidated claim to mean that Aviall was relying on § 107

"not as an independent cause of action," but only "to the

extent necessary to maintain a viable § 113(f)(1) contribution

claim." Civ. Action No. 3:97-CV-1926-D (ND Tex., Jan. 13,

2000), App. to Pet. for Cert. 94a, n. 2. Consequently the

court saw no need to address any freestanding § 107 claim.

The Fifth Circuit panel likewise concluded that Aviall no

longer advanced a standalone § 107 claim. 263 F.3d at 137,

n. 2. The en banc court found it unnecessary to decide

whether Aviall had waived the § 107 claim, because it held

that Aviall could rely instead on § 113. 312 F.3d at 685, n.

15. Thus, the court did not address the waiver issue, let alone

the merits of the § 107 claim. ;

"We ordinarily do not decide in the first instance issues

not decided below." Adarand Constructors, Inc. v. Mineta,

534 U.S. 103, 109, 151 L. Ed. 2d 489, 122 S. Ct. 511 (2001)

(per curiam) (internal quotation marks omitted). Although

we have deviated from this rule in exceptional circumstances,

United States v. Mendenhall, 446 U.S. 544, 551-552, n. 5, 64

L. Ed. 2d 497, 100 S. Ct. 1870 (1980), the circumstances

here cut against resolving the § 107 claim. Both the question

whether Aviall has waived this claim and the underlying

§ 107 question (if it is not waived) may depend in part on the

relationship between §§ 107 and 113. That relationship is a

significant issue in its own right. It is also well beyond the

scope of the briefing and, indeed, the question presented,

which asks simply whether a private party "may bring an

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action seeking contribution pursuant to CERCLA Section

113(f)(1)." Pet. for Cert. i. The § 107 claim and the

preliminary waiver question merit full consideration by the

courts below.

Furthermore, the parties cite numerous decisions of the

Courts of Appeals as holding that a private party that is itself

a PRP may not pursue a § 107(a) action against other PRPs

for joint and several liability. See, e.g., Bedford Affiliates v.

Sills, 156 F.3d 416, 423-424 (CA2 1998); Centerior Serv.

Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 349-

356 (CA6 1998); Pneumo Abex Corp. v. High Point, T. & D.

R. Co., 142 F.3d 769, 776 (CA4 1998); Pinal Creek Group v.

Newmont Mining Corp., 118 F.3d 1298, 1301-1306 (CA9

1997); New Castle County v. Halliburton NUS Corp., 111

F.3d 1116, 1120-1124 (CA3 1997); Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1496, and n. 7 (CAI1

1996); United States v. Colorado & E. R. Co., 50 F.3d 1530,

1534-1536 (CA10 1995); United Technologies Corp. v.

Browning-Ferris Industries, 33 F.3d 96, 98-103 (CA1 1994).

To hold here that Aviall may pursue a § 107 action, we

would have to consider whether these decisions are correct,

an issue that Aviall has flagged but not briefed. And we

might have to consider other issues, also not briefed, such as

whether Aviall, which seeks to recover the share of its

cleanup costs fairly chargeable to Cooper, may pursue a

§ 107 cost recovery action for some form of liability other

than joint and several. We think it more prudent to withhold

judgment on these matters.

In-view of the importance of the § 107 issue and the

absence of briefing and decisions by the courts below, we are

not prepared -- as the dissent would have it -- to resolve the

§ 107 question solely on the basis of dictum in Key Tronic.

We held there that certain attorney's fees were not "necessary

costs of response” within the meaning of § 107(a)(4)(B). 511

U.S., at 818-821, 128 L. Ed. 2d 797, 114 S. Ct. 1960. But we

l2a

did not address the relevance, if any, of Key Tronic's status

as a PRP or confront the relationship between §§ 107 and

113. In discussing § 107, we did not even classify it precisely

as a right of cost recovery or a right of contribution, as the

dissent's descriptions of the decision reveal. Post, at 1-2

(opinion of GINSBURG, J.) (describing Key Tronic as

recognizing a right to "seek recovery of cleanup costs

(quoting 511 U.S., at 818, 128 L. Ed. 2d 797, 114 S. Ct.

1960), but in the following paragraph saying that Key 7ronic

identified a "right to contribution"). "Questions which merely

lurk in the record, neither brought to the attention of the court

nor ruled upon, are not to be considered as having been so

decided as to constitute precedents." Webster v. Fall, 266

U.S. 507, 511, 69 L. Ed. 411, 45 S. Ct. 148 (1925). Aviall

itself recognizes the need for fuller examination of the § 107

claim; it has simply requested that we remand for

consideration of that claim, not tha! we resolve the claim in

the first instance.

.

In addition to leaving open whether Aviall may seek cost

recovery under § 107, Part III-B, supra, we decline to decide

whether Aviall has an implied right to contribution under

§ 107. Portions of the Fifth Circuit's opinion below might be

taken to endorse the latter cause of action, 312 F.3d at 687;

others appear to reserve the question whether such a cause of

action exists, id, at 685, n. 15. To the extent that Aviall

chooses to frame its § 107 claim on remand as an implied

right of contribution (as opposed to a right of cost

recovery ),'° we note that this Court has visited the subject of

implied rights of contribution before. See Texas I/ndustries,

451 U.S., at 638-647, 68 L. Ed. 2d 500, 101 S. Ct. 2061;

10 As noted above, we do not address whether a § 107 cost recovery

action by Aviall (if not waived) may seek some form of liability other

than joint and several.

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Northwest Airlines, 451 U.S., at 90-99, 67 L. Ed. 2d 750, 101

S. Ct. 1571. We also note that, in enacting § 113(f)(1),

Congress explicitly recognized a particular set (claims

"during or following" the specified civil actions) of the

contribution rights previously implied by courts from

provisions of CERCLA and the common law. Cf.

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,

19. 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979). Nonetheless, we

need not and do not decide today whether any judicially

implied right of contribution survived the passage of SARA.

** *

We hold only that § 113(f)(1) does not support Aviall’s

suit. We therefore reverse the judgment of the Fifth Circuit

and remand the case for further proceedings consistent with

this opinion.

It is so ordered.

l4a

SUPREME COURT OF THE

UNITED STATES

No. 02-1192

COOPER INDUSTRIES, INC.,

PETITIONER v. AVIALL

SERVICES, INC.

543 U.S. (2004)

October 6, 2004, Argued

December 13, 2004, Decided

JUSTICE GINSBURG, with whom JUSTICE STEVENS

joins, dissenting.

Aviall Services, Inc., purchased from Cooper Industries,

Inc., property that was contaminated with hazardous

substances. Shortly after the purchase, the Texas Natural

Resource Conservation Commission notified Aviall that it

would institute enforcement action if Aviall failed to

remediate the property. Aviall promptly cleaned up the site

and now seeks reimbursement from Cooper. In my view, the

Court unnecessarily defers decision on Aviall's entitlement to

recover cleanup costs from Cooper.

In Key Tronic Corp. v. United States, 511 U.S. 809, 818,

128 L. Ed. 2d 797, 114 S. Ct. 1960 (1994), all Members of

this Court agreed that § 107 of the Comprehensive

Environmental Response, Compensation, and Liability Act

of 1980 (CERCLA), 42 U.S.C. § 9607, "unquestionably

provides a cause of action for [potentially responsible

persons (PRPs)] to seek recovery of cleanup costs." The

Court rested that determination squarely and solely on

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§ 107(a)(4)(B), which allows any person who has incurred

costs for cleaning up a hazardous waste site to recover all or

a portion of those costs from any other person liable under

CERCLA.!!

The Key Tronic Court divided, however, on the question

whether the right to contribution is implicit in § 107(a)'s text,

as the majority determined, or whether § 107(a) expressly

confers the right, as the dissenters urged. The majority stated:

Section 107 "implies -- but does not expressly command --

that [a PRP] may have a claim for contribution against those

treated as joint tortfeasors." 511 U.S., at 818, 128 L. Ed. 2d

797, 114 S. Ct. 1960, and n. 11 ((emphasis added)). The

dissent maintained: "Section 107(a)(4)(B) states, as clearly as

can be, that 'covered persons . . . shall be liable for. . .

necessary costs of response incurred by any other person.’

Surely to say that A shall be liable to B is the express

creation of a right of action." /d., at 822, 128 L. Ed. 2d 797,

114 S. Ct. 1960. But no Justice expressed the slightest doubt

that § 107 indeed did enable a PRP to sue other covered

persons for reimbursement, in whole or part, of cleanup costs

the PRP legitimately incurred.

In its original complaint, Aviall identified § 107 as the

federal-law basis for an independent cost-recovery claim

against Cooper, and § 113 as the basis for a contribution

claim. App. 8A, 16A-17A. In amended pleadings, Aviall

alleged both §§ 107 and 113 as the federal underpinning for

11 Key Tronic, a PRP, asserted a cost-recovery claim under § 107(a) to

recoup approximately $ 1.2 million in costs that it allegedly incurred

cleaning up its site "at its own initiative." Key Tronic Corp. v. United

States, 984 F.2d 1025, 1026 (CA9 1993). Although Key Tronic settled a

portion of its liability with the Environmental Protection Agency (EPA),

the claim advanced in Key Tronic's § 107(a) suit rested on remedial

action taken before the EPA's involvement, remediation that did not

figure in the settlement. /d., at 1026-1027; Key Tronic Corp. v. United

States, 511 U.S. 809, 811-812, 128 L. Ed. 2d 797, 114 S. Ct. 1960 (1994).

l6a

its contribution claim. /d., at 27A, 48A. Aviall's use of

§§ 113 and 107 in tandem to assert a contribution claim

conformed its pleading to then-governing Fifth Circuit

precedent, which held that a CERCLA contribution action

arises through the joint operation of § 107(a) and § 113(f)(1).

See Geraghty and Miller, Inc. v. Conoco, Inc., 234 F.3d 917,

924 (2000) ("While section 113(f) is the vehicle for bringing

a contribution action, it does not create a new cause of action

or create any new liabilities. Rather, it is a mechanism for

apportioning costs that are recoverable under section 107."

(footnote omitted)). A party obliged by circuit precedent to

plead in a certain way can hardly be deemed to have waived

a plea the party could have maintained had the law of the

Circuit permitted him to do so. But cf. ante, at 9-10.

In the Fifth Circuit's view, § 107 supplied the right of

action for Aviall's claim, and § 113(f)(1) prescribed the

procedural framework. 312 F.3d 677, 683, and n. 10 (2002)

(stating that § 107" impliedly authorizes a cause of action for

contribution" and § 113(f) "governs and regulates" the action

(citing Geraghty and Miller, 234 F.3d at 924) (internal

quotation marks omitted)); see § 113(f)(1) (calling for the

governance of "Federal law" and the application of "the

Federal Rules of Civil Procedure," and specifying that "in

resolving contribution claims, the court may allocate

response costs among liable parties using such equitable

factors as the court determines are appropriate"). Notably,

Aviall expressly urged in the Court of Appeals that, were the

court to conclude that § 113(f)(1)'s "during or following"

language excluded application of that section to this case,

Aviall's suit should be adjudicated independently under

§ 107(a). See Response of Appellant Aviall Services, Inc., to

the Amicus Curiae Brief of the United States in No. 00-

10197 (CAS), p. 24 ("Parties who are excluded from seeking

contribution under section 113(f)(1) must therefore have

available to them the broader right of cost recovery [covering

17a

both full recovery and contribution] under section 107(a).");

cf. Key Tronic, 511 U.S., at 816, 128 L. Ed. 2d 797, 114 S.

Ct. 1960 ("The statute now expressly authorizes a cause of

action for contribution in § 113 and impliedly authorizes a

similar and somewhat overlapping remedy in § 107.").

I see no cause for protracting this litigation by requiring

the Fifth Circuit to revisit a determination it has essentially

made already: Federal courts, prior to the enactment of

§ 113(f)(1), had correctly held that PRPs could "recover

[under § 107] a proportionate share of their costs in actions

for contribution against other PRPs," 312 F.3d at 687;!2

nothing in § 113 retracts that right, ibid. (noting that

§ 113(f)'s saving clause preserves all preexisting state and

federal rights of action for contribution, including the § 107

implied right this Court recognized in Key Tronic, 511 U.S.,

12 The cases to which the Court refers, ante, at 12, Texas Industries, Inc.

v. Radcliff Materials, Inc., 451 U.S. 630, 68 L. Ed. 2d 500, 101 S. Ct.

2061 (1981), and Northwest Airlines, Inc. v. Transport Workers Union,

451 U.S. 77, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981), do not address the

implication of a right of action for contribution under CERCLA. Texas

Industries concerned the Sherman and Clayton Acis, 451 U.S., at 639-

646, 68 L. Ed. 2d 500, 101 S. Ct. 2061; Northwest Airlines, the Equal Pay

Act and Title VII, 451 U.S., at 90-99, 67 L. Ed. 2d 750, 101 S. Ct. 1571.

A determination suitable in one statutory context does not necessarily

carry over to a different statutory setting.

18a

at 816, 128 L. Ed. 2d 797, 114 S. Ct. 1960). Accordingly, I

would not defer a definitive ruling by this Court on the

question whether Aviall may pursue a § 107 claim for relief

against Cooper.

19a

No. 00-10197

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

AVIALL SERVICES, INC.,

Plaintiffs-Counter Defendant-Appellant,

VS.

COOPER INDUSTRIES, INC..,

Defendant-Counter Claimant-Appellee.

Appeal from the United States District Court

Northern District of Texas

MOTION FOR LEAVE TO FILE

SUPPLEMENTAL BRIEFS

Appellant Aviall Services, Inc., asks this court to set a

briefing schedule and allow the parties to file supplemental

briefs on the issues that the Supreme Court has remanded to

the en banc court. In support, Aviall states as follows:

1. In August 1997, Aviall filed this action

against Cooper Industries, Inc., in the United States District

Court for the Northern District of Texas, seeking to recover

from Cooper a share of Aviall’s environmental clean-up

costs. Aviall asserted some state law claims but primarily

sought recovery under section 107 and section 113 of the

20a

federal Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), 42 U.S.C.

§§ 9607, 9613.

- Both parties filed summary judgment motions.

The district court granted Cooper's motion and denied Aviall's

motion. Concluding that Aviall had dropped its section 107 claim

when it filed an amended complaint, the court ruled solely on

the propriety of Aviall's section 113 claim. The court read

section 113 to allow an action for contribution only during or

after a civil action under CERCLA. Because Aviall's clean up

was not undertaken pursuant to a CERCLA suit, the court

ruled that Aviall could not maintain its section 113 claim.

The court then dismissed Aviall's section 113 claim and,

choosing not to exercise supplemental jurisdiction over

Aviall's state law claims, dismissed the entire case for lack of

subject matter jurisdiction.

“a

3. On appeal a divided panel of this court

affirmed on substantially the same reasoning. 263 F.3d 134

(2001). On rehearing, this court sitting en banc reversed and

held that Aviall could pursue its contribution action. 312

F.3d 677 (2002).

4. The Supreme Court granted Cooper's petition

for writ of certiorari. On December 13, 2004, the Court

reversed the en banc court and held that Aviall had no valid

section 113 claim against Cooper. 543 U.S. _, 125 S.Ct.

577 (2004) (Exhibit 1). Admitting uncertainty was to

whether this court had ruled that Aviall had dropped its

section 107 claim in the amended complaint, the Court

declined to decide whether such a claim was still before the

district court. It remanded that issue to this court.

a Although Aviall mentioned this issue in its brief

to the Supreme Court, see Brief of Respondent at 7 n.4,

36-38 (Exhibit 2), the Court noted that the parties had not

2la

fully briefed the issue in this court. Because this specific

matter is the subject of the Court's remand, the issue now

requires full briefing in this court.

6. Aviall proposes the following _ briefing

schedule and page limits:

Aviall’s Brief (15 pages) 14 days afier the ruling on this motion

Cooper’s Brief (15 pages) 14 days after Aviall’s brief is served

Aviall’s Reply Brief (7 pages) 7 days after Cooper’s brief is served

7. Aviall also requests that the court hear oral

argument on this issue.

WHEREFORE Aviall respectfully requests that this

court: (1) allow the parties to file supplemental briefs on the

issue whether Aviall may pursue its section 107 claim,

(2) adopt the proposed briefing schedule and page limits, and

(3) hear oral argument on the section 107 issue.

Respectfully submitted,

GARDERE WYNNE SEWELL LLP

/s/

Richard O. Faulk

Cynthia J. Bishop

3000 Thanksgiving Tower

1601 Elm Street

Dallas, Texas 75201

(214) 999-3000

(214) 999-4667 (Fax)

ATTORNEYS FOR APPELLANT

22a

No. 00-10197

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

AVIALL SERVICES, INC.,

Plaintiff —Appellant

VS.

COOPER INDUSTRIES, INC..,

Defendant —Appellee

Appeal from the United States District Court

Northern District of Texas

RESPONSE BRIEF OF COOPER INDUSTRIES, INC.

IN OPPOSITION TO AVIALL SERVICES, INC.’s

MOTION FOR LEAVE TO FILE SUPPLEMENTAL

BRIEFS

Aviall Services, Inc. (“Aviall”) requests that this

Court take the extraordinary step of allowing direct

“supplemental briefs on the issue [of] whether Aviall may

pursue its section 107 claim.” MOTION FOR LEAVE at 4/7.

Such an approach would unnecessarily abrogate the

customary judicial procedure of allowing the District Court

to digest all evidentiary considerations, frame the factual

23a

findings and determine the related legal issues presented,

prior to any appellate review that might later be required.

Accordingly, appellee Cooper Industries, Inc. (“Cooper”)

respectfully requests that this Court deny Aviall’s request for

immediate appellate briefing on the secondary § 107 issue,

and instead remand this matter to the District Court for

consideration and determination of the issues presented in the

normal course.

First, the Supreme Court expressly distinguished the

threshold, “preliminary waiver question” (i.e., “the question

whether Aviall has waived this claim”), from “the underlying

§ 107 question (if it is not waived)....” Cooper Industries,

Inc. v. Aviall Services, Inc., __ U.S. ___, 2004 U.S. LEXIS

8271 at *21-23 (2004) (emphasis added). Clearly, “the

preliminary waiver question” must first be resolved before

the secondary issue would even be ripe for consideration. /d.

at *22. In other words, if Aviall is found to have waived a

potential direct cost-recovery claim under CERCLA § 107 —

through abandonment of that cause of action in its pleadings,

failure to prosecute the claim, direct representations or

admissions to the District Court, failure to appeal the District

Court’s previous determination regarding abandonment of

the direct § 107 claim, etc.!3 — then this case is over.

13 Curiously, while Aviall admits in its current motion that the District

Court “[cJonclud[ed] that Aviall had dropped its section 107 claim when

it filed an amended complaint,” MOTION FOR LEAVE at 42, Aviall’s

appeal to this Court was limited exclusively to the question of whether a

“responsible party” can “recover its [alleged] cleanup costs from another

responsible party under § 113 of CERCLA.” See BR. OF APPELLANT

(May 19, 2000) at 2, emphasis added. Indeed, there is no mention

whatsoever of CERCLA § 107, or the District Court’s prior

determination, in the “Statement of Issues” appealed by Aviall to this

Court nearly five years ago. Under FED. R. App. P. 28(a), “[t]he brief of

the appellant must contain...[a] statement of the issues presented for

review.” See also Nissho-Ilwai Co., Ltd. v. Occidental Crude Sales, Inc.,

729 F.2d 1530, 1539 n. 14 (5™ Cir. 1984) (granting motion to strike

24a

Further, denial of Aviall’s current motion is

particularly warranted since the threshold waiver issue is

inherently factual and must be remanded to the natural fact-

finder (i.e., the District Court) where the underlying actions

were taken and representations made by counsel for Aviall.

If further factual inquiry is necessary for “full consideration

by the courts below,” as directed by the Supreme Court (id.),

that inquiry and factual determination must necessarily start

with the fact-finding court.

I. PROCEDURAL BACKGROUND

Aviall filed this action seeking to recover

environmental costs it incurred addressing contamination at

four of its properties. Aviall initially asserted a direct

“CERCLA Cost Recovery” claim under § 107(a), as well as a

“CERCLA Contribution” claim under § 113(f)(1) and a

multitude of pendant state-law causes of action. Aviall

subsequently decided to amend its complaint, omitting the §

107 “CERCLA Cost Recovery” cause of action altogether.

Both the District Court and a panel of this Court addressed

Aviall’s remaining § 113 contribution claim and ruled that it

lacked the necessary legal prerequisites to survive. Sitting en

banc, this Court reversed. However, the Supreme Court

ultimately held that “Section 113(f)(1) does not authorize

Aviall’s suit” and remanded the case. /d. at *16.

portion of appellant’s reply brief on the grounds that “an [appellant’s]

original brief abandons all points not mentioned therein”) (internal

citation omitted); accord Bank One, Texas, N.A. v. Taylor, 970 F.2d 16,

27 (5" Cir. 1992); Stockman v. Federal Election Commission, 138 F.3d

144 (1998).

25a

Il. AVIALL’S REQUEST CONTRADICTS THE SUPREME

COURT’S INSTRUCTIONS

When this action was before the Supreme Court,

Aviall only “mentioned”!4 the issue of whether it might have

been entitled to directly “recover costs under CERCLA

§107(a)(4)(B).” Cooper, 2004 U.S. LEXIS 8271 at *21.

However, after rejecting Aviall’s § 113 contribution claim,

the Supreme Court expressly “declined to address” this

contingent, un-briefed argument. Jd. at *21. Instead, it

determined that:

Neither the District Court, nor the Fifth-

Circuit panel, nor the Fifth Circuit sitting

en banc considered Aviall’s § 107 claim.

Aviall included separate § 107 and § 113

claims in its original complaint, but then

asserted a “‘combined” § 107/ § 113 claim in

its amended complaint. The District Court

took this consolidated claim to mean that

Aviall was relying on § 107 “not as an

independent cause of action,” but only “to

the extent necessary to maintain a viable §

113(f)(1) contribution claim.” Consequently

the court saw no need to address any

freestanding § 107 claim. The Fifth Circuit

panel likewise concluded that Aviall no

longer advanced a standalone § 107 claim.

The en banc court found it unnecessary to

decide whether Aviall had waived the § 107

claim, because it held that Aviall could rely

14 See MOTION FOR LEAVE at 95. Aviall has never suggested that it

actually appealed this issue for consideration by the Court.

26a

instead on § 113. Thus, the court did not

address the waiver issue, let alone the

merits of the § 107 claim.

Id. (emphasis added and internal citations omitted).

The nature of the Supreme Court’s remand precludes

Aviall’s motion for direct briefing before this Court. The

Supreme Court expressly stated that “[t]he $107 claim and

the preliminary waiver question merit full consideration by

the courts below.” Jd. (emphasis added). It also consistently

noted that these issues would benefit from “briefing and

decisions by the courts below....” /d. (emphasis added).

The Supreme Court’s consistent plural references to “courts”

and “decisions” as well as its request for “full consideration”

leave no doubt that it intended for normal processing before

the District Court and then, if necessary, associated appellate

review. To go along with Aviall’s current request would

impermissibly usurp the normal course of judicial

proceedings clearly anticipated by the Supreme Court.

Indeed, the Supreme Court reached its decision under

the basic precept that appellate courts “ordinarily do not

decide in the first instance issues not decided below.” /d. at

*22 (quoting Adarand Constructors, Inc. v. Mineta, 534 U.S.

103, 109 (2001) (per curium)). It then reasoned that the

“exceptional circumstances” which occasionally warrant

deviation from this principle were not present in this case,

instead concluding that “the circumstances here cut against

resolving the §107 claim.” /d. (emphasis in original). These

same over-arching principles apply with equal force to this

Court. Aviall’s instant motion requests preemptive appellate

review of issues that the Supreme Court ruled “/njeither the

District Court, nor the Fifth Circuit panel, nor the Fifth

Circuit sitting en banc [have] considered....” Id. at *21

(emphasis added). Based on the Supreme Court’s own

27a

analysis, immediate appellate briefing and review would be

inappropriate. Rather, when a Supreme Court mandate is

clear (as it is here) “it is the duty of the Circuit Court to carry

it into execution....”. West v. Brashear, 39 U.S. 51, 54

(1840)

lil. AVIALL’S REQUEST WOULD PRECLUDE NECESSARY

FACTUAL INQUIRY

The Supreme Court's chosen course of action is fully

consistent with the factual nature of the issues to be

determined. The first, and perhaps only, issue that will need

to be addressed is whether Aviall has waived its right to

further pursue a direct cost-recovery claim under CERCLA §

107. Waiver is an innately factual issue. See, e.g., United

States v. Avants, 278 F.3d 510, 519 (5" Cir. 2002) (whether

or not a party has waived an argument in the district court is

a question of fact); Meeks v. Cabana, 845 F.2d 1319, 1322-

23 (5" Cir. 1988) (state court’s finding of a waiver “involves

a pure question of fact that is entitled to the presumption of

correctness”); First Interstate Bank of Ariz. v. Interfund

Corp., 924 F.2d 588, 595 (5" Cir. 1991) (defense of waiver is

a question of fact).

A detailed assessment of this factual issue may

necessarily involve fact gathering, including discovery

regarding the circumstances surrounding Aviall’s change in

position and testimony from each person involved.

Ultimately, this inquiry may culminate in an evidentiary

hearing centered upon facts not currently in the record.

Following such an inquiry, Judge Fitzwater will be uniquely

positioned to decide this factual issue based upon his historic

personal interaction with counsel, the testimony and

demeanor of other witnesses and the nature of the arguments

made. In contrast, an appellate court lacks the fact-finding

28a

apparatus necessary to conduct a fulsome review of the

waiver issue.

As this Court has acknowledged, remand is the proper

result where the parties have not had “a full and fair

opportunity to develop facts relevant to the...decision.”

Fruge v. Blood Services, 506 F.2d 841, 844 (5 Cir. 1975).

In this case, remand to the District Court in the first instance

“is essential in order that parties may have the opportunity to

offer all the evidence they believe relevant to the issues

which the trial tribunal is alone competent to decide; it is

equally essential in order that litigants may not be surprised

on appeal by final decision there of issues upon which they

have had no opportunity to introduce evidence.” Hormel v.

Helvering, 312 U.S. 552, 556 (1941). Therefore, even if the

rejection of Aviall’s extraordinary motion for direct appellate

review was not mandated by the Supreme Court’s ruling, it

would be required by the nature of the issues at hand.

IV. CONCLUSION

The Supreme Court’s ruling that “[t]he §107 claim

and the preliminary waiver question merit full consideration

by the courts below” requires the rejection of Aviall’s

extraordinary request for direct appellate briefing. Further,

denial of Aviail’s motion is warranted because the threshold

waiver issue requires the “full and fair” factual inquiry that

this Court has recognized must precede appellate review.

Accordingly, Cooper respectfully requests that this Court

deny Aviall’s MOTION FOR LEAVE TO FILE SUPPLEMENTAL

BRIEFS and instead remand this matter to the District Court

for full consideration of: (1) whether Aviall has waived its

right to assert a direct cost-recovery claim under CERCLA

29a

§107; and, if necessary, (2) whether Aviall would be

authorized by CERCLA to assert such a claim.

Respectfully submitted,

/s/

Dale E. Stephenson

Allen A. Kacenjar

SQUIRE, SANDERS &

’ DEMPSEY L.L.P.

4900 Key Tower

127 Public Square

Cleveland, Ohio 44114-1304

(216) 479-8500

30a

No. 00-10197

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

AVIALL SERVICES, INC.,

Plaintiffs-Counter Defendant-Appellant,

VS.

COOPER INDUSTRIES, INC.,

Defendant-Counter Claimant-Appellee.

Appeal from the United States District Court

Northern District of Texas

REPLY BRIEF OF AVIALL SERVICES, INC.

IN SUPPORT OF REQUEST FOR SUPPLEMENTAL

BRIEFING

i Summary of reply argument.

Cooper argues that the issues of whether Aviall

waived its section 107 claim and whether Aviall even has a

viable section 107 claim are properly decided by the district

court, not this court. However, both parties previously

briefed section 107 issues to some extent in their original

briefing in this court, and so the viability of a section 107

claim is an issue properly before this court on appeal. In

addition, the district court record before this court establishes

3la

that Aviall did not waive the claim in that court. There is

thus no need for a remand, whether for additional discovery

or otherwise.

Il. Both parties raised the section 107 issues in their

original briefing, and so the matter is properly

before this court.

Cooper questions whether Aviall properly raised a

point of error regarding the district court’s dismissal of

Aviall’s section 107 claim. However, the parties’ previous

briefs in this court raised that issue — albeit not as thoroughly

as the Supreme Court’s remand now requires — and so the

section 107 issues are properly before this court.

Aviall raised both section 107. issues in its prior

appellate briefing. See Response of Appellant to the Amicus

Curiae Brief of the United States at 24 (arguing that “parties

who are excluded from seeking contribution under section

113(f)(1) must therefore have available to them the broader

right of cost recovery under section 107(a)”); Supplemental

Brief of Appellant at 27 n.11 (arguing that “the district court

stated that Aviall dropped its § 107 claim. Aviall’s amended

compliant states combined claims under § 107 and § 113...

should this court conclude that a PRP such as Aviall, who

undertakes clean up pursuant to a state directive, has a cause

of action under § 107(a)(4)(B) rather than § 113(f), the case

should be remanded to the district court to continue the

proceedings under § 107.”). And Aviall requested reversal of

the district court’s dismissal as to all of Aviall’s claims, not

just as to the section 113 claim or the federal law claims.

Supplemental Brief of Appellant at 30 (“Aviall . . . asks the

court to reverse the district court’s judgment as to all of

Aviall’s claims.”). That the issue was not specified in the

Statement of Issues is not fatal if the matter was briefed. See,

e.g., Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir.

32a

1994): Kincade v. General Tire & Rubber, 635 F.2d 501,

504-505 (Sth Cir. 1981).

Indeed, Cooper’s briefs before the panel and before

this court en banc all responded to the issues on the merits

and did not question whether the issue had been properly

raised in the appeal. See Response Brief of Appellee at 36

(“Either [Aviall] attempts to proceed under § 107 and the

claim is dismissed under the prevailing law, or it drops the

§ 107 claim and lives with the consequences.”); Supplemental

Brief of Cooper Industries at 34-37 (arguing that Aviall

voluntarily dismissed its section 107 claim that such a claim is

not viable as a matter of law under the facts alleged).

Moreover, in its en banc opinion this court

acknowledged that the parties had a continuing dispute over

whether Aviall’s pleadings properly seek contribution under

section 107. See 312 F.3d 677, 685 n.15. The record of this

appeal therefore shows that the section 107 issues were

properly brought to this court on appeal.

Ill. The district court record establishes that Aviall did

not waive the section 107 claim.

Contrary to Cooper’s assertion, the present record is

sufficient to show that Aviall did not waive its section 107

claim when it filed its first amended complaint — and so

additional discovery would be superfluous and unnecessary.

A determination of whether Aviall dropped its section 107

claim when it amended its complaint is a procedural question

that should be decided as a matter of law. This issue can be

decided by reviewing the record, including the first amended

complaint and the transcript of the oral argument made during

33a

the district court’s summary judgment hearing.!5 The

parties’ summary judgment briefing assumed that the issue

was properly before the court. See Plaintiff's Response to

Defendant Cooper Industries, Inc.’s Motion for Summary

Judgment at 11-12; Defendant Cooper Industries, Inc.’s

Motion for Summary Judgment at 20-22. Even Cooper’s

answer to the first amended complaint raised an affirmative

defense premised on the presence of a section 107 claim in

that complaint. See Answer to First Amended Complaint and

Counterclaim of Cooper Industries, Inc. at 15 (asserting that

“Aviall is barred from pursuing a direct private-party claim

against Cooper under the authority of CERCLA § 107(a)”).

Cooper has not cited any specific discovery that is needed to

clarify what these pleadings make clear — which indicates the

issue is a red herring.

The district court held that Aviall had waived its

section 107 claim. The panel opinion of this court agreed,

but this court sitting en banc did not decide the issue. See

200.1 WL 31730 at *2 (panel opinion), superseded by 263

F.3d 134, 137 n.2 (en banc). Consequently, there is no need

for additional fact finding on this issue. Therefore, this issue

should be decided by the en banc, not the district court.!6

15 See Transcript of Oral Argument Before the Honorable Sidney A.

Fitzwater, United States District Judge at 25-27 (“MR. FAULK: I do

believe that we were trying to seek the umbrella relief from - for - under

both Sections of the provisions as they complemented each other.”).

16 While Cooper argues that the Supreme Court instructed the district

court to resolve the § 107 Issues because it used the words “courts,”

“decisions,” and “full consideration,” it fails to note Justice Ginsberg’s

comment “I see no cause for protracting this litigation by requiring the

Fifth Circuit to revisit a determination it has essentially already made

[allowing § 107 actions to be brought by potentially responsible parties].”

Cooper, 125 S.Ct. at 588. (emphasis added). This difference in syntax

does not support Cooper’s hyper technical argument.

34a

WHEREFORE Aviall respectfully requests that this

court: (1) grant Aviall’s Motion for Leave to File

Supplemental Briefs, (2) implement the scheduling order set

forth therein, and (3) hear oral argument on the section 107

issues.

Respectfully submitted,

GARDERE WYNNE SEWELL LLP

/s/

Richard O. Faulk

Cynthia J. Bishop

3000 Thanksgiving Tower

1601 Elm Street

Dallas, Texas 75201

(214) 999-3000

(214) 999-4667 (Fax)

ATTORNEYS FOR APPELLANT

35a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-10197

AVIALL SERVICES, INC.,

Plaintiff-Counter-Defendant-A ppellant,

VS.

COOPER INDUSTRIES, INC.,

Defendant-Counter-Claimant-Appellee.

ORDER

Before KING, JOLLY, HIGGINBOTHAM, DAVIS,

JONES, SMITH, WIENER, BARKSDALE, GARZA,

DEMOSS, BENAVIDES, STEWART, DENNIS, and

PRADO, Circuit Judges.

BY THE COURT:

On remand from the Supreme Court, the en banc

court has considered Aviall Services’ Motion for Leave to

File Supplemental Briefs and other relief, and having

reviewed the supporting materials and opposition of Cooper

Industries, Inc.,

36a

It is ORDERED that:

(1) Aviall Services’ motion for further decision

by the en banc court is DENIED; and

(2) the case is REMANDED to the district court

with instructions to permit Aviall Services to amend its

complaint, if necessary, to assert, free of any challenge of

waiver or forfeiture, whatever statutory claims it urges in

light of the Supreme Court’s decision, without prejudice to

Cooper Industries’ other defenses.

ENTERED FOR THE COURT:

/s/

EDITH H. JONES

UNITED STATES CIRCUIT JUDGE