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Whittaker Corp. v. United States

United States Court of Appeals, Ninth Circuit

June 13, 2016

Whittaker Corporation, a Delaware corporation, Plaintiff-Appellant,
v.
United States of America, Defendant-Appellee.

          Argued and Submitted March 10, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California, No. 2:13-cv-01741-FMO-JC Fernando M. Olguin, District Judge, Presiding

          Kevin M. Fong (argued), Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Reynold L. Siemens, Mark E. Elliott, and Caroline L. Plant, Pillsbury Winthrop Shaw Pittman LLP, Los Angeles, California, for Plaintiff-Appellant.

          Nicholas A. DiMascio (argued), Attorney, Environment and Natural Resources Division, United States Department of Justice, Denver, Colorado; Aaron P. Avila and Michael C. Augustini, Attorneys; Sam Hirsch, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

          Before: Stephen Reinhardt, Mary H. Murguia, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         CERCLA

         The panel reversed the district court's dismissal of Whittaker Corporation's lawsuit against the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to recover expenses that Whittaker incurred since the 1980s from investigating and cleaning the Bermite Site, a munitions facility in Santa Clarita, California.

         The district court dismissed the case based on its conclusion that because Whittaker had been sued in Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053, 1069 (C.D. Cal. 2003), it could bring only a CERCLA contribution action - not a cost recovery action - against the United States, and the statute of limitations for a contribution claim had expired.

         Whittaker was found liable to the Castaic Lake plaintiffs for the expenses specifically related to removing perchlorate from the plaintiffs' wells and replacing water; in this case, Whittaker sought reimbursement from the government for a different set of expenses for which Whittaker was found not liable in Castaic Lake.

         The panel held that because Whittaker sought to recover expenses that were separate from those for which Whittaker's liability was established or pending, Whittaker was not required to bring this suit as a claim for CERCLA § 113(f) contribution. The panel concluded that Whittaker was not barred on this basis from bringing a CERCLA § 107(a) cost recovery action against the United States.

         Judge Owens concurred in all but Part III D because in his view the case law has drifted from Congress's intent when it passed and amended CERCLA in the 1980s.

          OPINION

          MURGUIA, Circuit Judge.

         When two or more people have been found liable for someone's injury, and one of them pays more than her fair share, the law often lets the person who paid too much recover from the others, in order to even things out. This is called the right to "contribution, " and it has deep roots in our statutory and common law. See Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 86-88 (1981). CERCLA, a federal environmental statute, also allows people who pay to clean up pollution recover their costs from the polluters.[1] See 42 U.S.C. § 9607(a). The plaintiff in this case, Whittaker, is a company that was both found liable for injuries caused by its pollution and that also paid to clean pollution up. Whittaker now seeks reimbursement of its cleanup expenses from other polluters. We must decide whether Whittaker is limited to seeking contribution from other polluters, or whether Whittaker may instead recover its cleanup expenses in a CERCLA cost recovery action. We hold that Whittaker's liability in a prior case did not limit it to seeking contribution for all of its expenses, so Whittaker may use a CERCLA cost recovery action to seek reimbursement for the cleanup costs at issue in this case.

         I

         Whittaker Corporation is a defense contractor that manufactures and tests munitions for the U.S. military.[2] In 1967, Whittaker acquired a munitions facility in Santa Clarita, California, from the Bermite Powder Company (the Bermite Site). Between 1954, when the Bermite Powder Company was in charge, until 1987, when Whittaker ceased operations, approximately 90 percent of the munitions manufacturing and testing at the Bermite Site was done under contracts with the U.S. military.

         Whittaker began investigating the release of hazardous substances at the Bermite Site in the early 1980s. In 2000, Whittaker was sued by the Castaic Lake Water Agency and other water providers (the Castaic Lake plaintiffs) under CERCLA and various state laws. The Castaic Lake plaintiffs were in the business of pumping water out of ground wells near the Bermite Site. They alleged that their water supplies were contaminated by a pollutant called perchlorate and other hazardous chemicals as a result of Whittaker's operations. Specifically, the Castaic Lake plaintiffs alleged:

Plaintiffs, and each of them, are injured by the contamination (including, without limitation, the perchlorate contamination) caused by Defendants on a continuing basis. In addition, Plaintiffs, and each of them, have incurred and will continue to incur costs in responding to the contamination (including, without limitation, the perchlorate contamination) caused by Defendants' activities at the Site. Until the contamination problems caused by the Site are stopped, Plaintiffs will continue to incur substantial costs for the indefinite future.

         In their CERCLA causes of action, the Castaic Lake plaintiffs sought to recover the "costs of response" they had incurred. The Castaic Lake plaintiffs also alleged causes of action for negligence, nuisance, trespass, and ultra-hazardous activity, and in those causes of action, they sought an injunction ordering Whittaker to "remediate and abate all contamination and threats of contamination caused by the Site."

         The district court in Castaic Lake granted summary judgment to the Castaic Lake plaintiffs on their CERCLA claim based on perchlorate contamination in the plaintiffs' wells. Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053, 1069 (C.D. Cal. 2003). Whittaker and its insurers subsequently settled with the Castaic Lake plaintiffs in 2007. Under the terms of the settlement, Whittaker and its insurers agreed to reimburse the Castaic Lake plaintiffs for costs the plaintiffs had incurred to remove perchlorate pollution from their water wells, and to purchase replacement water. The result of Castaic Lake was that Whittaker was found liable for a specific set of the plaintiffs' costs of responding to Whittaker's pollution; Whittaker was never ordered in Castaic Lake to clean up the Bermite Site.

         In 2013, Whittaker initiated this CERCLA lawsuit against the United States to recover expenses Whittaker incurred since the 1980s from investigating and cleaning the Bermite Site. Whittaker alleged that these expenses included costs for soil sampling, borings, excavations, surveys, groundwater sampling, and remedial operations addressing chlorinated solvents and heavy metals. Whittaker explicitly alleged that these expenses were separate from the costs for which it was liable under the Castaic Lake settlement.

         The United States moved to dismiss Whittaker's complaint, arguing that because Whittaker had been sued in Castaic Lake, it could bring only a CERCLA contribution action-not a cost recovery action-against the United States, and that the statute of limitations for a contribution claim had expired. The district court agreed with the United States. The district court concluded that, pursuant to CERCLA § 113, the Castaic Lake lawsuit triggered Whittaker's right to bring an action for contribution (i.e., reimbursement for paying more than its fair share), and that the instant lawsuit sought expenses that could have been reimbursed through such a contribution action. Because Whittaker could have brought a contribution action, the district court concluded under our case law that Whittaker could not bring a cost recovery action (i.e., reimbursement from a polluter for cleanup costs). And because Whittaker only brought a cost recovery action, the district court dismissed the complaint.

         Whittaker filed this timely appeal. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

         II

         We review the district court's decision to grant a motion to dismiss de novo. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). We take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Id. "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a ...


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