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Territory of Guam v. United States

Paid petition · United States Court of Appeals for the District of Columbia Circuit, No. 19-5131 · judgment February 14, 2020

Decided · May 24, 2021
Pre-decision estimate: 13% cert probability (95% interval 9%–20%)

Before the decision, about 3.2× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a D.C. Circuit decision below, and a circuit split argued in the petition.

Questions presented

For nearly half a century, the United States Navy discarded toxic waste at a dump that the Navy created in the 1940s on the Island of Guam, an unincorporated territory of the United States, without any environmental safeguards. The Navy then left Guam to clean up the site—a project that is likely to cost more than $160 million. Guam brought this suit to recover cleanup costs from the United States under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a), which allows parties to recover remediation costs from other responsible parties within six years of the initiation of a remedial action. The district court concluded that Guam’s claim could proceed. The D.C. Circuit, however, held that Guam’s claim was precluded by CERCLA Section 113(f)(3)(B), in a decision that deepens two acknowledged circuit conflicts. Section 113(f)(3)(B) establishes a contribution remedy for any party that “has resolved its liability to the United States or a State for some or all of a response action” in a “judicially approved settlement,” subject to a three-year statute of limitations. Id. § 9613 (f)(3)(B). Here, the D.C. Circuit held that Section 113(f)(3)(B) was triggered by a decadeold consent decree settling claims under the Clean Water Act (CWA)—even though that decree did not mention CERCLA, explicitly disclaimed any finding of liability, and left Guam exposed to future liability. And given that Guam filed suit more than three years after the consent decree was entered, the court held that Guam’s action is barred. The questions presented are:

  1. Whether a non-CERCLA settlement can trigger a contribution claim under CERCLA Section 113(f)(3)(B).

  2. Whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).

Counsel of record

For petitioner
Gregory George Garre
Latham & Watkins LLP

For respondent
Brian H. Fletcher
Acting Solicitor General

Case

Conference history
Distributed for 1 conference

Amicus briefs
3 merits
(2 supporting pet./neither, 1 respondent)

Argument & decision

Argued April 26, 2021 — Gregory G. Garre · Vivek Suri. Audio and transcript

Decided May 24, 2021. Opinion by Thomas.

Proceedings

  1. Jun 25 2021
    JUDGMENT ISSUED.
  2. May 24 2021
    Judgment REVERSED and case REMANDED. Thomas, J., delivered the opinion for a unanimous Court.
  3. Apr 26 2021
    Argued. For petitioner: Gregory G. Garre, Bethesda, Md. For respondent: Vivek Suri, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
  4. Apr 16 2021
    Reply of petitioner Government of Guam filed. (Distributed)
  5. Mar 31 2021
    Brief amicus curiae of Atlantic Richfield Company filed. (Distributed)
  6. Mar 30 2021
    CIRCULATED
  7. Mar 24 2021
    Brief of respondent United States filed.
  8. Mar 16 2021
    The record received from the U.S. District and Bankruptcy Courts is electronic and located on Pacer.
  9. Mar 16 2021
    The record from the U.S.C.A. is electronic and located on Pacer. The oral argument transcript, has been electronically received and filed.
  10. Mar 15 2021
    Record requested.
  11. Mar 12 2021
    SET FOR ARGUMENT on Monday, April 26, 2021.
  12. Mar 01 2021
    Brief amicus curiae of ConservAmerica filed.
  13. Mar 01 2021
    Brief amici curiae of Territories of The Commonwealth Of The Northern Mariana Islands, et al. filed.
  14. Feb 22 2021
    Brief of petitioner Government of Guam filed.
  15. Feb 22 2021
    Joint appendix filed. (Statement of costs filed)
  16. Jan 08 2021
    Petition GRANTED.
  17. Dec 23 2020
    DISTRIBUTED for Conference of 1/8/2021.
  18. Dec 23 2020
    Reply of petitioner Government of Guam filed. (Distributed)
  19. Dec 07 2020
    Brief of respondent United States in opposition filed.
  20. Nov 23 2020
    Motion to extend the time to file a response is granted and the time is further extended to and including December 9, 2020.
  21. Nov 20 2020
    Motion to extend the time to file a response from November 25, 2020 to December 9, 2020, submitted to The Clerk.
  22. Oct 23 2020
    Motion to extend the time to file a response is granted and the time is extended to and including November 25, 2020.
  23. Oct 21 2020
    Motion to extend the time to file a response from October 26, 2020 to November 25, 2020, submitted to The Clerk.
  24. Sep 16 2020
    Petition for a writ of certiorari filed. (Response due October 26, 2020)