Beazer East Inc v. Mead Corp ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-13-2008
    Beazer East Inc v. Mead Corp
    Precedential or Non-Precedential: Precedential
    Docket No. 06-4993
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1094
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _______________
    No. 06-4993
    _____________
    BEAZER EAST, INC.
    v.
    THE MEAD CORPORATION,
    Appellant
    v.
    KOPPERS INDUSTRIES, INC.,
    Third Party Defendant
    ____________
    APPEAL FROM
    THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF PENNSYLVANIA
    (D.C. Civ. No. 91-cv-00408)
    District Judge: Honorable Gustave Diamond
    Argued November 2, 2007
    Before: RENDELL, WEIS
    and NYGAARD, Circuit Judges.
    (Filed: May 13, 2008)
    DALE E. STEPHENSON, ESQUIRE (ARGUED)
    J. Van Carson, Esquire
    Allen A. Kacenjar, Esquire
    Squire, Sanders & Dempsey L.L.P.
    4900 Key Tower, 127 Public Square
    Cleveland, Ohio 44114-1304
    David E. White, Esquire
    Thorp, Reed & Armstrong
    One Oxford Center, 14th floor
    301 Grant Street
    Pittsburgh, PA 15219
    Attorneys for Appellant The Mead Corporation
    D. MATTHEW JAMESON, III, ESQUIRE (ARGUED)
    Mark D. Shepard, Esquire
    Babst, Calland, Clements & Zomnir, P.C.
    Two Gateway Center, 8th floor
    Pittsburgh, PA 15222
    Attorneys for Appellee Beazer East, Inc.
    John E. Frey, Esquire
    Wildman, Harrold, Allen & Dixon
    225 West Wacker Drive, Suite 2800
    Chicago, Il 60606
    Attorney for Appellee Koppers Industries, Inc.
    2
    ____________
    OPINION
    WEIS, Circuit Judge.
    This is the third appeal in this long-running contribution
    claim under the Comprehensive Environmental Response,
    Compensation, and Liability Act of 1980 (CERCLA), Pub. L.
    No. 96-510, 94 Stat. 2767. After the second appeal was
    decided, defendant Mead moved for judgment for failure to state
    a claim or for lack of subject-matter jurisdiction. The District
    Court denied the motions, but certified a controlling question of
    law under 28 U.S.C. § 1292(b) raising the issue of whether the
    effect of Cooper Indus. v. Aviall Servs., Inc., 
    543 U.S. 157
    (2004), is to deny subject-matter jurisdiction over plaintiff
    Beazer’s contribution claims under § 113(f)(1) of CERCLA, 42
    U.S.C. § 9613(f)(1).1 Also implicated is the denial of Mead’s
    motion to dismiss for failure to state a claim under § 113(f)(1).
    We conclude that the District Court has subject-matter
    jurisdiction. We will also affirm the denial of the motion for
    judgment on the pleadings and will remand for further
    proceedings.
    1
    In general, § 113(f)(1) permits contribution from others
    who are responsible under CERCLA for cleanup of
    contaminated sites. That section is discussed in more detail
    infra.
    3
    I.
    We will summarize the progress of this litigation to the
    extent that it is pertinent to the pending appeal. Beazer’s
    predecessor in title purchased property previously owned by
    Mead. After federal and state investigations revealed the
    existence of hazardous wastes at the site, Beazer entered into a
    1991 Administrative Order on Consent with the United States
    Environmental Protection Agency under the Resource
    Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C.
    § 6901 et seq. After Mead declined to participate in the
    investigation and cleanup of the site, Beazer began a lengthy and
    continuing remediation process.
    In early 1991, Beazer filed a complaint against Mead
    seeking contribution for investigation and cleanup costs under
    §§ 107(a) 2 and 113(f)(1) of CERCLA, 42 U.S.C. §§ 9607(a),
    9613(f)(1), as well as asserting various state and common law
    claims. Mead counterclaimed based on an indemnity provision
    in the original purchase agreement.
    The District Court granted summary judgment to Mead,
    but on appeal we reversed, holding that the purchase agreement
    did not require indemnification. Beazer East, Inc. v. Mead
    Corp., 
    34 F.3d 206
    , 208 (3d Cir. 1994) (Beazer I). The case was
    remanded so that the District Court could “consider both parties’
    2
    In broad terms, § 107 provides for recovery from
    responsible parties for expenses incurred in cleaning up
    contaminated sites. It is discussed infra.
    4
    contribution claims, and determine the proper apportionment of
    CERCLA liability.” 
    Id. at 209.
    On remand, Mead argued, inter alia, that Beazer could
    not recover most of its costs under § 113(f)(1) because they
    were incurred under the RCRA 3 rather than CERCLA.
    Moreover, the costs could not be obtained under § 107(a)
    because they were not voluntarily incurred.
    In 1996, the District Court determined that Beazer’s
    §§ 107 and 113(f) claims were duplicative. It dismissed the §
    107 claim, stating, “Beazer has failed to identify any additional
    bases for recovery or damages under a § 9706 [§ 107] claim
    which would not be included in a final allocation of the parties’
    contribution claims under § 9613(f) [§ 113(f)].” 4
    The District Court also concluded, “[t]o the extent that
    the motion seeks to preclude Beazer from advancing its
    § [113(f)] action on the bases that Beazer’s response costs were
    incurred on a voluntary nature or were incurred under the
    Resource Conservation Recovery Act, 42 U.S.C. § 6901 et seq.,
    the motion is likewise denied.”
    3
    The 1991 Administrative Order on Consent was entered
    into under § 3008(h) of the Resource Conservation and
    Recovery Act of 1976, 42 U.S.C. § 6928(h).
    4
    The reference to § 9706 is apparently a typographical
    error. Section 107 of CERCLA is codified at 42 U.S.C. § 9607.
    5
    The Court then referred the case to a magistrate judge to
    allocate costs between Mead and Beazer. At that time, neither
    of the parties sought reconsideration of the District Court’s
    rulings on the viability of the § 107 and § 113(f)(1) claims.
    After conclusion of the magistrate’s allocation
    proceedings, the district judge modified the magistrate’s
    recommendations and, following a bench trial, assessed Mead
    with 67.5% and Beazer with 32.5% liability. In August 2002,
    the Court entered judgment against Mead in the amount of
    $3,243,467.80 plus interest.    The Court also entered a
    declaratory judgment in October 2002 requiring Mead to pay
    67.5% of Beazer’s continuing costs.
    Mead appealed, contending that in the absence of its
    consent the magistrate judge lacked authority to conduct a fact-
    finding trial.    Mead did not challenge its liability for
    contribution under §113(f)(1), nor did Beazer discuss whether
    it had a claim for contribution under §107.
    In June 2005, this Court decided that the magistrate judge
    lacked authority to conduct the allocation proceeding. Beazer
    East, Inc. v. Mead Corp., 
    412 F.3d 429
    , 432 (3d Cir. 2005)
    (Beazer II). We remanded “for a new equitable allocation
    proceeding before the District Judge,” 
    id., and commented
    on
    factors to be considered in the apportionment, but made no
    ruling on the liability of the parties. 
    Id. at 445-49.
    In December 2004, after Beazer II was argued, the
    Supreme Court decided Cooper. Essentially, that case held that
    a party “who has not been sued under § 106 or § 107(a) . . .
    6
    [cannot] obtain contribution under § 113(f)(1) from other liable
    
    parties.” 543 U.S. at 161
    .
    In June 2005, we filed the opinion in Beazer II and
    returned the case to the District Court. Six months later, in
    January 2006, Mead filed a motion for judgment on the
    pleadings, asserting that Beazer could not maintain its claim for
    contribution pursuant to § 113(f)(1) because of the Cooper
    decision. In a later filing, Mead argued that Cooper deprived
    the District Court of subject-matter jurisdiction because Beazer
    had not been sued under § 106 or § 107.
    The District Court denied the motion, ruling that the
    requirement for a suit under § 106 or § 107 was an element of a
    claim for relief under § 113(f)(1) and not a jurisdictional
    threshold. The Court also noted that Mead had waived its non-
    jurisdictional defense to the § 113(f)(1) claim by failing to raise
    the issue on its appeal in Beazer II.
    Mead then filed this interlocutory appeal. After it was
    docketed and the briefs were filed, but before oral argument, the
    Supreme Court decided United States v. Atlantic Research
    Corp., 
    127 S. Ct. 2331
    (June 11, 2007), holding that a
    “potentially responsible party” (PRP) may recover against
    another PRP for cleanup costs under § 107(a).5 
    Id. at 2334.
    5
    We use “the term ‘potentially responsible party’ or
    ‘PRP’ to refer to those parties that potentially bear some liability
    for contaminating a site” under CERCLA. E.I. DuPont de
    Nemours & Co. v. United States, 
    508 F.3d 126
    , 128 n.2 (3d Cir.
    7
    II.
    CERCLA is a strict liability statute granting the President
    broad authority to compel private parties and governmental
    bodies to clean up contaminated sites and to require “everyone
    who is potentially responsible for hazardous-waste
    contamination . . . [to] contribute to the costs of cleanup.”
    United States v. Bestfoods, 
    524 U.S. 51
    , 56 n.1 (1998)
    (emphasis and quotation omitted). As originally enacted, the
    statute provided for recovery under § 107, which listed four
    categories of parties, including current and past owners of a
    facility, who were potentially responsible for cleanup costs. See
    42 U.S.C. § 9607(a).
    Section 107 provided that PRPs were liable for costs
    incurred by the federal and state governments, 42 U.S.C.
    § 9607(a)(4)(A), as well as for “any other necessary costs of
    response incurred by any other person consistent with the
    national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). Section
    107, however, proved to be an inadequate means for allocating
    cleanup costs among the various PRPs. Disputes arose over
    whether a private party that voluntarily incurred cleanup
    expenses or had been sued by other PRPs could recover from
    other PRPs.
    Litigation about the scope of § 107 ultimately led
    Congress to amend CERCLA by adding § 113(f) to provide a
    right to contribution.   See Superfund Amendments and
    2007).
    8
    Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100
    Stat. 1613. Under § 113(f)(1), “[a]ny person may seek
    contribution from any other person who is liable or potentially
    liable under section 107(a), during or following any civil actions
    under section 106 of this title or under section 107(a).” 42
    U.S.C. § 9613(f)(1). Further, “[i]n resolving contribution
    claims, the court may allocate response costs among liable
    parties using such equitable factors as the court determines are
    appropriate.” Id.6
    Section 113, however, raised questions over the interplay
    between § 113(f) and § 107(a). See, e.g., Atlantic 
    Research, 127 S. Ct. at 2334
    . Courts struggled to determine whether
    § 113(f)(1) allowed a PRP to seek contribution from other PRPs
    for voluntary cleanup costs and whether it could maintain a cost-
    recovery action under § 107 for joint and several liability against
    other PRPs. See E.I. DuPont de Nemours & Co. v. United
    States, 
    508 F.3d 126
    , 132-33 (3d Cir. 2007).
    In 2004, the Supreme Court held that “a private party
    who has not been sued under § 106 or § 107(a) may [not] . . .
    obtain contribution under § 113(f)(1) from other liable parties.”
    
    Cooper, 543 U.S. at 161
    . The Court, however, did not decide
    whether a PRP may “pursue a § 107(a) action against other
    PRPs for joint and several liability,” 
    id. at 169,
    and whether a
    6
    The statute of limitations under § 107 differs from that
    under § 113, but that factor is not material in this case. See 42
    U.S.C. § 9613(g).
    9
    PRP has an “implied right to contribution under § 107.” 
    Id. at 170.
    Atlantic Research answered the question left open by
    Cooper, holding that “the plain language of [§ 107(a)(4)]
    subparagraph (B) authorizes cost-recovery actions by any
    private party, including 
    PRPs.” 127 S. Ct. at 2336
    . The Court
    described the interplay between § 107(a) and § 113(f)(1) as
    follows: “Section 113(f)(1) authorizes a contribution action to
    PRPs with common liability stemming from an action instituted
    under § 106 or § 107(a). And § 107(a) permits cost recovery (as
    distinct from contribution) by a private party that has itself
    incurred cleanup costs.” 
    Id. at 2338.
    III.
    Mead contends that because the § 107 claim was
    dismissed in 1996 by the District Court, Beazer’s only
    remaining means of recovery is under § 113(f)(1), a claim that
    is fatally flawed in light of Cooper. Mead argues that because
    Beazer has not “been sued under § 106 or § 107(a) . . . [it may
    not] obtain contribution under § 113(f)(1) from other liable
    parties.” 
    Cooper, 543 U.S. at 161
    .
    According to Mead, the failure to meet the “civil action”
    requirement deprives the District Court of subject-matter
    jurisdiction. Disagreeing, the District Court described the “civil
    action” requirement as “an element of a claim for relief under
    §113(f)(1), not a jurisdictional threshold.”
    10
    Mead contends on appeal that the requirement is
    jurisdictional because it constitutes the primary foundation for
    all §113(f)(1) contribution claims. Further, Mead argues that,
    even if the District Court was correct, Cooper destroyed
    jurisdiction because the claim is now so “completely devoid of
    merit as not to involve a federal controversy.” Kulick v. Pocono
    Downs Racing Ass’n, 
    816 F.2d 895
    , 899 (3d Cir. 1987)
    (quotation omitted).
    A.
    We turn first to the contention that the “civil action”
    requirement in § 113(f)(1) is jurisdictional. Mead’s approach is
    an example of the loose use of the term “jurisdiction,” an error
    that has frequently been present in judicial opinions. See
    Arbaugh v. Y&H Corp., 
    546 U.S. 500
    , 511 (2006). The
    terminology has been often used incorrectly when litigation has
    been dismissed on the merits in situations where the courts
    clearly had the power to adjudicate the disputes. 
    Id. Arbaugh discussed
    the confusion caused by the profligate use of
    “jurisdiction,” 
    id. at 510-11,
    observing that “jurisdiction” is a
    word of “many, too many meanings.” 
    Id. at 510
    (quotation
    omitted). Characterizing some dispositions as “drive-by
    jurisdictional rulings,” 
    id. at 511
    (internal quotation marks
    omitted), the Court cautioned that they “should be accorded ‘no
    precedential effect’” on a court’s authority. 
    Id. (citation omitted).7
    7
    The Supreme Court noted that the distinction was
    important because mislabeling a requirement as jurisdictional
    11
    Arbaugh held that the employee-numerosity prerequisite
    for Title VII discrimination proceedings was an element of the
    claim and not a test for subject matter-jurisdiction because the
    requirement related to “the substantive adequacy” of the claim.
    
    Id. at 504.
    In reaching its conclusion, the Court set out a
    “readily administrable bright line” test for determining if a
    statutory limitation is jurisdictional:
    “If the Legislature clearly states that a threshold
    limitation on a statute’s scope shall count as
    jurisdictional, then courts and litigants will be
    duly instructed and will not be left to wrestle with
    the issue. But when Congress does not rank a
    statutory limitation on coverage as jurisdictional,
    courts should treat the restriction as
    nonjurisdictional in character.”
    had serious consequences. Arbaugh v. Y & H Corp., 
    546 U.S. 500
    , 513-14 (2006). Unlike an element of a claim, subject-
    matter jurisdiction “can never be forfeited or waived” and courts
    have a continuing “independent obligation to determine whether
    subject-matter jurisdiction exists.” 
    Id. at 514
    (quotation
    omitted). Also, trial judges may evaluate evidence relating to
    subject-matter jurisdiction, but only a jury can assess facts
    relating to an element of a claim. 
    Id. Finally, a
    lack of subject-
    matter jurisdiction means that the entire complaint must be
    dismissed, whereas “when a court grants a motion to dismiss for
    failure to state a federal claim, the court generally retains
    discretion to exercise supplemental jurisdiction . . . over pendent
    state-law claims.” 
    Id. 12 Id.
    at 515-16 (internal citation omitted).
    Applying the Arbaugh standard in the case before us
    demonstrates that the requirement that a § 113(f)(1) plaintiff
    must have been sued under § 106 or § 107(a) is an element of
    the claim. Failure to meet that requirement does not deprive the
    court of jurisdiction to decide the validity of the § 113(f)(1)
    claim.
    Mead has not pointed to any language in § 113(f)(1) to
    show that Congress clearly stated that the requirement should
    “count as jurisdictional.” If Congress intended that result, it
    could have explicitly said so.8 See 
    Arbaugh, 546 U.S. at 515
    .
    We are persuaded that the “civil action” requirement in
    § 113(f) is an element of the claim.9 See GenCorp, Inc. v. Olin
    8
    The absence of a reference to § 113(f) in § 113(b), 42
    U.S.C. § 9613(b), CERCLA’s jurisdictional provision, is notable
    because that provision expressly subjects its grant of jurisdiction
    to subsections (a) and (h) of § 113.
    42 U.S.C. § 9613(b) [§ 113(b)] reads, “Except as
    provided in subsections (a) and (h) of this section, the United
    States district courts shall have exclusive original jurisdiction
    over all controversies arising under this Act, without regard to
    the citizenship of the parties or the amount in controversy.”
    9
    Mead cites two Federal Circuit cases that found that
    statutes of limitations were jurisdictional in cases against the
    United States Government. See John R. Sand & Gravel Co. v.
    13
    Corp., 
    477 F.3d 368
    , 376 (6th Cir. 2007) (The “civil action”
    requirement is not jurisdictional because there is “no indication
    that Congress perceived this requirement as jurisdictional in
    nature.”).
    B.
    Mead also argues that the District Court lacks subject
    matter jurisdiction because Beazer’s §113(f)(1) claim has been
    made insubstantial by the Cooper decision.
    The “legal insufficiency of a federal claim generally does
    not eliminate the subject matter jurisdiction of a federal court.”
    Growth Horizons, Inc. v. Delaware County, 
    983 F.2d 1277
    ,
    1280 (3d Cir. 1993). In Bell v. Hood, 
    327 U.S. 678
    (1946),
    however, the Supreme Court observed that the rule did not apply
    “where the alleged claim under the Constitution or federal
    statutes clearly appears to be immaterial and made solely for the
    purpose of obtaining jurisdiction or where such a claim is
    wholly insubstantial and frivolous.” 
    Id. at 682-83;
    see also
    Oneida Indian Nation v. County of Oneida, 
    414 U.S. 661
    , 666
    (1974) (Dismissal for lack of subject-matter jurisdiction is
    United States, 
    457 F.3d 1345
    , 1351 (Fed. Cir. 2006), aff’d, 
    128 S. Ct. 750
    (2008); Fed. Nat’l Mortg. Ass’n v. United States, 
    469 F.3d 968
    , 972 (Fed. Cir. 2006). Those two opinions are
    inapposite because they relied on the unique nature of suits
    against the United States and concluded that the statutes were
    conditions on the United States’ consent to suit.
    14
    appropriate if a claim is “so insubstantial, implausible,
    foreclosed by prior decisions of this Court, or otherwise
    completely devoid of merit as not to involve a federal
    controversy.”).
    Mead’s argument rests on the assumption that Beazer’s
    § 113(f)(1) claim cannot possibly satisfy the “civil action”
    requirement. However, the Supreme Court apparently left open
    the question of whether a CERCLA administrative order can
    qualify as a “civil action” when it stated in Cooper that “we
    need not decide whether . . . [an administrative order under
    § 106] would qualify as a ‘civil 
    action.’” 543 U.S. at 168
    n.5.
    Beazer argues that the RCRA order is the functional equivalent
    of one under CERCLA and would qualify as a “civil action.”
    We need not address the merits of Beazer’s argument, but
    observe that its § 113(f)(1) claim does not enter the realm of the
    “wholly insubstantial and frivolous.”
    In answer to the certified question of law, we hold that
    the District Court retained its original jurisdiction to adjudicate
    the issues in this case.
    IV.
    Although the certified question is a narrow one, we may
    address other issues that are fairly set forth in the record and
    which ultimately affect the outcome of the litigation. Ferrostaal,
    Inc. v. M/V Sea Phoenix, 
    447 F.3d 212
    , 216 (3d Cir. 2006) (a
    certified order under 28 U.S.C. § 1292(b) extends to all issues
    fairly included in the underlying order); NVE Inc. v. Dep’t of
    Health & Human Servs., 
    436 F.3d 182
    , 196 (3d Cir. 2006). It
    15
    would be a waste of judicial resources to delay resolution of the
    pertinent issues in this already lengthy litigation. We will
    therefore address the contention that the District Court erred in
    denying dismissal for failure to state a claim.
    Mead argues that Beazer’s § 113(f)(1) claim fails
    because it does not meet the requisite “during or following any
    civil action” requirement discussed in Cooper. The District
    Court concluded that Mead waived this objection by failing to
    raise it during its second appeal in Beazer II. Mead now
    contends that it did not waive its objection because the District
    Court did not finally rule on that point in the July 1996 order
    prior to Beazer II and, therefore, the objection is still pending.
    In its memorandum in support of its motion for partial
    summary judgment, Mead had argued that “[n]othing in section
    113(f) authorizes Beazer to seek contribution for costs incurred
    under other statutory schemes, such as RCRA. On the contrary,
    section 113(f) only covers persons facing liability under sections
    106 or 107.” The District Court rejected that argument, stating
    that “[t]o the extent that the motion seeks to preclude Beazer
    from advancing its § 9613(f) action on the bases that Beazer’s
    response costs were incurred on a voluntary nature or were
    incurred under the Resource Conservation Recovery Act, 42
    U.S.C. § 6901 et seq., the motion is likewise denied.”
    The District Court’s order was explicit, but not
    immediately appealable because it was a denial of a motion for
    summary judgment. Boeing Co. v. Int’l Union, United Auto.,
    Aerospace, & Agric. Implement Workers, 
    370 F.2d 969
    , 970 (3d
    Cir. 1967). The 1996 denial of Mead’s motion based on the
    16
    “civil action” prerequisite became final and appealable in 2002
    when the District Court ordered judgments in Beazer’s favor for
    $3,243,467.80 and continuing costs.
    In the opinion accompanying the August 2002 order, the
    District Court stated that the relevant issue was “which of
    Beazer’s specifically claimed environmental costs . . . are
    recoverable in a contribution action under 42 U.S.C. § 9613(f)
    [§ 113(f)].” In October 2002, the District Court issued an order
    incorporating its prior rulings and declared that Mead was
    “liable to plaintiff . . . for 67.5% of all of Beazer’s necessary
    response costs.”
    The 2002 judgments were based on a finding that Mead
    was liable under § 113(f)(1). Mead’s current objections to the
    § 113(f)(1) claim had been rejected at that point and should have
    been presented in its direct appeal in Beazer II. See United
    States v. Pultrone, 
    241 F.3d 306
    , 307 (3d Cir. 2001) (holding
    that a defendant could not challenge his conviction in a second
    direct appeal after a remand for resentencing when he failed to
    raise the issue in the first direct appeal); United States v.
    Husband, 
    312 F.3d 247
    , 250 (7th Cir. 2002) (“any issue that
    could have been but was not raised on appeal is waived and thus
    not remanded”); Omni Outdoor Adver., Inc. v. Columbia
    Outdoor Adver., Inc., 
    974 F.2d 502
    , 505 (4th Cir. 1992) (same);
    Nw. Ind. Tel. Co. v. FCC, 
    872 F.2d 465
    , 470 (D.C. Cir. 1989)
    (“It is elementary that where an argument could have been
    raised on an initial appeal, it is inappropriate to consider that
    argument on a second appeal following remand.”).
    17
    The brief filed by Mead in Beazer II clearly indicates the
    limited scope of the issues raised in that appeal.10
    10
    In its brief on appeal in Beazer II, Mead listed the issues
    as:
    “1. Whether the district court, in the absence of
    consent of a party, has the authority to delegate
    jurisdiction to a Magistrate to conduct an
    evidentiary, fact-finding trial and issue
    preliminary factual findings and conclusions of
    law on the issue of the allocation of liability
    among the parties in a CERCLA contribution
    action. . . .
    2. Whether the district court erroneously equated
    CERCLA’s ‘polluter pays’ principle with a
    Congressional mandate to consider ‘volume of
    wastes’ as the primary equitable allocation
    factor. . . .
    3. Whether the district court erroneously failed to
    give appropriate weight in allocating liability
    between Beazer and Mead to its finding that the
    parties intended the 1974 Purchase Agreement to
    shift to Beazer all of the environmental liability at
    the Site. . . .
    4. Whether the district court erred in finding
    Mead responsible for ‘approximately 90% of the
    waste on the site’ when the facts indicate this
    conclusion was based on inaccurate and
    inconsistent information and assumptions. . . .
    18
    Mead cannot now, after a remand on an unrelated issue, raise
    objections that it previously waived.
    An exception to normal law of the case and waiver rules
    is recognized when an intervening decision from a superior
    court changes the controlling law. See Zichy v. City of
    Philadelphia, 
    590 F.2d 503
    , 508 (3d Cir. 1979); Hayman Cash
    Register Co. v. Sarokin, 
    669 F.2d 162
    , 170 (3d Cir. 1982). We
    have invoked that theory to allow a party to raise an issue for the
    first time on direct review where a Supreme Court decision
    intervened between a district court ruling and our appeal. See,
    e.g., E.I. DuPont de Nemours & 
    Co., 508 F.3d at 136
    n.6
    (considering plaintiff’s claims despite an earlier voluntary
    dismissal because they had taken on new importance after the
    intervening decision in Cooper); see also Vandenbark v.
    Owens-Illinois Glass Co., 
    311 U.S. 538
    , 543 (1941). We have
    also applied this rule where a controlling Supreme Court
    decision intervened between two appeals. See, e.g., 
    Zichy, 590 F.2d at 508
    .
    5. Whether the Court erred in entering a
    declaratory judgment which fixes Mead’s
    allocation of liability into the future and provides
    no mechanism for challenges to that allocation
    based on changed facts or circumstances. . . .”
    19
    Those situations are not present here. Cooper was issued
    about six months before our decision in Beazer II.11 Aware of
    the Cooper opinion, Mead made no effort to bring it to this
    Court’s attention before the filing of Beazer II. Mead now seeks
    to excuse its inaction by arguing that it was not permitted or
    required under Fed. R. App. P. 28(j) to notify the Court because
    Cooper did not affect an issue raised in its Beazer II brief.
    It is true that “absent extraordinary circumstances, briefs
    must contain statements of all issues presented for appeal,
    together with supporting arguments and citations.” Simmons v.
    City of Philadelphia, 
    947 F.2d 1042
    , 1065 (3d Cir. 1991)
    (Becker, J., announcing judgment of the court) (referring to Fed.
    R. App. P. 28(a)(1)-(3)).
    Parties cannot normally use Rule 28(j) letters to present
    additional arguments. See United States v. Khorozian, 
    333 F.3d 498
    , 506 n.7 (3d Cir. 2003) (Rule 28(j) letter cannot be used to
    raise supplemental argument); Valdez v. Mercy Hosp., 
    961 F.2d 1401
    , 1404 (8th Cir. 1992) (Rule 28(j) letter cannot be used to
    raise a new issue that should have been raised earlier).
    Here, however, the intervening Cooper decision was the
    kind of extraordinary circumstance where knowledge of that
    opinion would be of substantial assistance to this Court’s
    11
    After the appeal was filed in Beazer II, the case was
    entered into the Court’s Appellate Mediation Program. One of
    the issues before the Beazer II panel was the validity of an oral
    settlement allegedly reached during the mediation.
    20
    deliberations. Beazer II involved a determination of the proper
    method of carrying out an allocation proceeding that rested on
    the conclusion that a § 113(f)(1) action was permissible. Cooper
    was clearly relevant to that decision.
    Mead cites no case in this Court adopting an unduly
    narrow construction of Rule 28(j) or a rigid limitation on our
    discretion to consider relevant new law. In any event, Mead
    could have requested an opportunity to submit additional
    briefing based on Cooper. See United States v. Vazquez-Rivera,
    
    407 F.3d 476
    , 487 (1st Cir. 2005) (intervening change in law is
    an exceptional circumstance under which a party may submit
    supplemental briefing on an issue that was not raised in its
    opening brief); DSC Commc’ns Corp. v. Next Level Commc’ns,
    
    107 F.3d 322
    , 326 n.2 (5th Cir. 1997) (party that waived an issue
    by failing to include it in its opening brief could raise the issue
    in a supplemental brief based on an intervening change of
    law).12
    The combination of the initial failure to raise the “civil
    action” objection in the briefs and subsequent failure to advise
    12
    Moreover, Mead did not attempt to file a Motion for
    Summary Action. See Third Circuit Local Appellate Rule 27.4;
    Third Circuit Internal Operating Procedure 10.6 (“The court . .
    . upon motion by a party, may take summary action . . . if it
    clearly appears that no substantial question is presented or that
    subsequent precedent or a change in circumstances warrants
    such action.”).
    21
    this Court of the Cooper opinion before Beazer II was decided
    precludes Mead from invoking the intervening law exception.
    We do not lightly invoke waiver, but as the Supreme
    Court has cautioned, “[t]here must be an end to litigation
    someday, and free, calculated, deliberate choices are not to be
    relieved from.” Ackermann v. United States, 
    340 U.S. 193
    , 198
    (1950). This case has been ongoing since 1991. Mead’s
    liability under § 113(f)(1) was established by the time of the
    District Court’s orders in 2002 – well before this Court’s June
    23, 2005, opinion in Beazer II. Allowing Mead to renew its
    argument at this late point in the litigation would seriously
    impair the finality of the rulings of this Court and the District
    Court. Mead must live by its long-standing and considered
    decision not to pursue its § 113(f) objection.
    We agree with the District Court that Mead waived its
    challenge to the applicability of § 113(f)(1) and the Court has
    subject-matter jurisdiction. Accordingly, we again remand this
    case to the District Court to hold an equitable allocation
    proceeding in accordance with Beazer II.
    22
    

Document Info

Docket Number: 06-4993

Filed Date: 5/13/2008

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (28)

United States v. Bestfoods , 118 S. Ct. 1876 ( 1998 )

Federal National Mortgage Association v. United States , 469 F.3d 968 ( 2006 )

the-boeing-company-a-delaware-corporation-v-international-union-united , 370 F.2d 969 ( 1967 )

Omni Outdoor Advertising, Inc. v. Columbia Outdoor ... , 974 F.2d 502 ( 1992 )

Bell v. Hood , 66 S. Ct. 773 ( 1946 )

Dsc Communications Corporation Dsc Technologies Corporation,... , 107 F.3d 322 ( 1997 )

Kathleen ZICHY and Jane E. Schofer, Appellants, v. the CITY ... , 590 F.2d 503 ( 1979 )

Julian E. VALDEZ, Appellant, v. MERCY HOSPITAL, an Iowa Non-... , 961 F.2d 1401 ( 1992 )

EI DuPont De Nemours and Co. v. United States , 508 F.3d 126 ( 2007 )

Gencorp, Inc. v. Olin Corporation , 477 F.3d 368 ( 2007 )

United States v. Vazquez-Rivera , 407 F.3d 476 ( 2005 )

United States v. Angela Khorozian , 333 F.3d 498 ( 2003 )

United States v. Ralph Pultrone , 241 F.3d 306 ( 2001 )

Vandenbark v. Owens-Illinois Glass Co. , 61 S. Ct. 347 ( 1941 )

Beazer East, Inc. v. The Mead Corporation , 34 F.3d 206 ( 1994 )

ferrostaal-inc-v-mv-sea-phoenix-formerly-known-as-mv-express-phoenix , 447 F.3d 212 ( 2006 )

northwestern-indiana-telephone-company-inc-and-northwest-indiana-catv , 872 F.2d 465 ( 1989 )

beazer-east-inc-v-the-mead-corporation-v-koppers-industries-inc-the , 412 F.3d 429 ( 2005 )

Ackermann v. United States , 71 S. Ct. 209 ( 1950 )

Arbaugh v. Y & H Corp. , 126 S. Ct. 1235 ( 2006 )

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