Cooper Industries, Inc. v. Aviall Services, Inc. (02-1192) and Brosseau v. Haugen (03-1261)

December 13, 2004 Supreme Court Update

Greetings, Court fans!

Lots of action today, in what was probably the last opinion day before 2005. The Court issued five opinions, on top of the four cert grants from last Friday. To avoid producing a totally unmanageable e-mail, we'll split the rulings into two (only somewhat unmanageable) e-mails. Today, we'll do two opinions and the cert grants; tomorrow you'll hear about the remaining three opinions.

In Cooper Industries, Inc. v. Aviall Services, Inc., No. 02-1192, the Court held that Section 113 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) allows a private party that cleans up a contaminated site to seek contribution from other responsible persons only if that party itself has been sued under CERCLA. The loser in this was Aviall, which discovered that some of its sites were contaminated, cleaned them up voluntarily, and then sought to recover some of its costs from Cooper (from whom it bought the sites). Section 107, CERCLA's original "cost recovery" provision, provides that "potentially responsible persons" (PRPs) are liable for response costs incurred by the U.S. government or "any other person." Federal courts had construed this provision to allow a PRP that incurred response costs (i.e., Aviall) to bring a recovery action against other PRPs (i.e., Cooper). In 1986, Congress added Section 113, which provides that a PRP "may seek contribution from any other [PRP] during or following any civil action under [CERCLA]." Aviall sued Cooper under both provisions in a Texas federal court. But the Fifth Circuit had previously held that any cost recovery claim under CERCLA must proceed under Section 113 (even one based on Section 107), so Aviall was forced to drop its independent Section 107 claim. The District Court then threw out the case on the ground that Aviall itself had not been sued, so it was not proceeding "during or following" a CERCLA action as required by Section 113. The Fifth Circuit reversed, reasoning, in essence, that the "may" in Section 113 did not mean "may only." Because it reversed on Section 113, the Fifth Circuit did not address Aviall's request to revisit its precedents and allow Aviall's claim to proceed solely under Section 107.

By a 7-2 vote, the Court reversed and remanded. Writing for the majority, Justice Thomas saw the case as a straightforward statutory construction case (yet another one; the statutory construction junkies must be in heaven). Section 113 plainly authorizes certain contribution actions – that is, contribution actions "during or following" a CERCLA lawsuit – and no others. Otherwise, Congress would have had no need to put "during or following . . ." in the statute. While Section 113 expressly does "not diminish the right of any person to bring an action for contribution in the absence of a [CERCLA] civil action," that saving clause applies only to causes of action that exist independently of Section 113. The majority declined to decide whether Aviall could proceed solely under Section 107, because the Fifth Circuit did not address the question below and the parties did not fully brief it to the Court. So Aviall will have to press that claim again in the Fifth Circuit, where it presumably will lose in light of the precedents that forced it to amend its complaint in the first place.

That fact was the basis for a dissent by Justice Ginsburg (joined by Justice Stevens). She did not take issue with the majority's analysis of Section 113, but she would have reached the Section 107 issue because the Fifth Circuit had decided that question elsewhere and she saw no need to further protract the litigation. Barely unspoken, and very strongly implied, is that Justice Ginsburg thinks the Fifth Circuit's construction of CERCLA is just wrong – in her view, the saving clause of Section 113 does not alter any rights that already existed under Section 107.

So for now, the message to Fifth Circuit industries is: If you're sitting on a contaminated site and want to go after others to recover your cleanup costs, you should wait for the government to sue you before you actually clean it up (Congress may want to think about changing that incentive before the Court has to deal with it again).

The Court also issued a per curiam opinion in Brosseau v. Haugen, No. 03-1261, in which it held that a police officer who shot a fleeing suspect in the back was entitled to qualified immunity in an excessive force action. Officer Brosseau was called to a fight at Haugen's home. Haugen fled to his car, and Brosseau believed he was going for a weapon. Brosseau succeeded in smashing the car window but was unable to take the keys from Haugen. When Haugen tried to drive off, Brosseau jumped back from the car and fired one shot into Haugen's back. Haugen later pleaded guilty to "eluding," which included the significant admission that he fled with "wanton or willful disregard for the lives of others." Still, he sued Brosseau under section 1983, and the District Court held that Brosseau was entitled to qualified immunity. The Ninth Circuit reversed, applying the two-step process set forth in Saucier v. Katz, 533 U.S. 194 (2001): It found that Brosseau had violated Haugen's Fourth Amendment right to be free from excessive force and that the right was clearly established, so no qualified immunity for Brosseau.

By an 8-1 vote, the Court reversed without briefing or argument. The Court took no position on whether Brosseau violated Haugen's constitutional rights because, even if she had, she was entitled to qualified immunity. The Ninth Circuit "clear[ly] misapprehen[ded]" the test for qualified immunity by not focusing its inquiry on her specific conduct. The Court noted that there were only a handful of conflicting decisions dealing with shooting "a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate vicinity are at risk from that flight." None of these cases was directly on point, and together they demonstrated only that Brosseau's actions fell in the "hazy border between excessive and acceptable force." Because it was not clearly established that Brosseau's conduct violated the Fourth Amendment, she was entitled to qualified immunity. Justice Breyer concurred, joined by Justices Scalia and Ginsburg. These Justices would have revisited Saucier, which requires lower courts first to determine whether a constitutional right has been violated and then reach the issue of qualified immunity. This rigid "order of battle" unnecessarily requires courts to reach difficult constitutional questions first, when qualified immunity might provide an easier basis for resolving a case.

Justice Stevens dissented. He believed that Brosseau violated the Fourth Amendment and that the qualified immunity question turned not on uncertainty in the law but on uncertainty in the facts – namely, the reasonableness of Brosseau's beliefs about the risk Haugen posed. That factual determination should have gone to the jury. Stevens also chided the Court for deciding the case summarily; had Haugen been shot dead, the legal issues would have been the same, but the Court undoubtedly would have required briefing or argument.

In a summary disposition also issued today, the Court vacated and remanded Foubert v. Lyons, No. 03-1622, for reconsideration in light of Brosseau.

Finally, the Court granted cert in four cases on Friday:

MGM Studios Inc. v. Grokster, Ltd., No. 04-480: The Court agreed to hear the music and movie industries' claim that suppliers of peer-to-peer file sharing technology are liable for users' copyright infringement. The question presented is: Did the Ninth Circuit err in concluding, contrary to long-established principles of secondary liability (and in acknowledged conflict with the Seventh Circuit) that Internet-based "file sharing" services Grokster and StreamCast should be immunized from copyright liability for millions of daily acts of copyright infringement that occur on their services and that constitute at least 90 percent of the total use of the services?

Medellin v. Dretke, No. 04-5928: Grokster will get a lot of press, but this one could be huge. It considers the right of a foreign national on death row in the U.S. to meet with a consular official of his home country – an issue the Court has avoided until now, following a decision by the International Court of Justice (ICJ) in favor of consular access rights. So the Justices will address the question of how U.S. courts should deal with international tribunals' decisions in cases arising under U.S. law. The questions presented are: 1. In a case brought by a Mexican national whose rights were adjudicated in the [ICJ's] Avena judgment, must a court in the U.S. apply as the rule of decision, notwithstanding any inconsistent U.S. precedent, the Avena holding that the U.S. courts must review and reconsider the national's conviction and sentence, without resort to procedural default doctrines? 2. In a case brought by a foreign national of a State party to the Vienna Convention, should a court in the U.S. give effect to the [ICJ's] LaGrand and Avena judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation?

San Remo Hotel v. San Francisco, No. 04-340: For those keeping track, this is the Court's third takings case for the term, dealing with the right of property owners to raise a claim in federal court after state courts have rejected any state law takings claims. The sole question presented is: Is a Fifth Amendment takings claim barred by issue preclusion based on a judgment denying compensation solely under state law, which was rendered in a state court proceeding that was required to ripen the federal takings claim?

Wilkinson v. Austin, No. 04-495: The question presented is: When state prison officials decide to place a prisoner in a 'super-maximum security' facility based on a predictive assessment of the security risk the prisoner presents, but prison regulations create a liberty interest for the prisoner in avoiding such placement, do procedures meeting the requirements specified in Hewitt v. Helms, 459 U.S. 460 (1983), satisfy the prisoner's due process rights?

For those still with us, we thank you for persistence. And just think – you'll hear about three more cases tomorrow!

Thanks as always for reading.

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400