February 7, 2023

Volume XIII, Number 38


February 07, 2023

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February 06, 2023

Subscribe to Latest Legal News and Analysis

Supreme Court Update: Ramos v. Louisiana (No. 18-5924), Atlantic Richfield v. Christian (No. 17-1498), Thryv, Inc. v. Click-to-Call Technologies (No. 18-916)

Greetings, Court Fans!

It was a busy week at the Court this week, as The Nine released opinions on two separate days, something it usually doesn’t do until June. Unfortunately, given their length and complexity, we’re only able to bring you full summaries of Monday’s cases today: Ramos v. Louisiana (No. 18-5924), holding that the Sixth Amendment requires a unanimous jury verdict to convict a criminal defendant of a serious offense; Atlantic Richfield v. Christian (No. 17-1498), holding (after first finding jurisdiction) that landowners around a Superfund site are “potentially responsible parties” who must obtain EPA approval before taking remedial action on their properties; and Thryv, Inc. v. Click-to-Call Technologies (No. 18-916), holding that a decision of the Patent Office to institute an inter partes review of an issued patent after the statutory time period for doing so has expired is not subject to judicial review. We’ll be back after the weekend with summaries of the three other cases decided this week: Barton v. Barr (No. 18-725), holding that an offense committed during an alien’s initial seven years of residence, which precludes the alien from being eligible for cancellation of removal, does not need to be the same offense that prompted the removal; County of Maui v. Hawaii Wildlife Fund (No. 18-260), holding that the Clean Water Act requires a permit any time there is either a direct discharge of pollutants into navigable waters, or when there is “the functional equivalent of a direct discharge”; and Romag Fasteners, Inc. v. Fossil, Inc. (No. 18-1233), holding that a plaintiff in a trademark infringement suit is not required to show willful infringement as a precondition to receiving an award of profits. (Side note: along with SCOTUS veteran Lisa Blatt, our very own Jonathan Freiman represented Romag in this case; congrats, Jonathan!)  

Onward, then, to Ramos v. Louisiana (No. 17-5924), one of the most interesting cases of OT19 so far—both in its substance, in the breakdown of votes, and in what it tells us about certain Justices’ views on stare decisis. The issue is one you might have thought was resolved long ago: Does the Sixth Amendment require that a criminal conviction for a serious crime be based on a unanimous jury verdict? Back in 1972, the Court took a notoriously unsuccessful stab at answering that question. In Apodaca v. Oregon (1972) (and a companion case, Johnson v. Louisiana (1972)), the Court concluded that the Sixth Amendment does not require unanimous jury verdicts in state criminal convictions. But the reasoning of the case has long been regarded as suspect. Four Justices (White, Burger, Blackmun, and Rehnquist) concluded that unanimity was not one of the core aspects of the common-law jury trial right that was guaranteed by the Sixth Amendment. Four Justices (Stewart, Brennan, Marshall, and Douglas) concluded that it was. And one Justice (Powell) concluded that the Sixth Amendment does require a unanimous verdict in criminal cases, but only in federal court. He drew that conclusion even though the Court had already rejected his “dual track” view of incorporation.

Nevertheless, Apodaca has remained “good law” for nearly fifty years. One reason for this may be that only two States—the same two, Louisiana and Oregon—permit convictions by non-unanimous verdicts. And even these two have had second thoughts. Louisiana has now prospectively abolished non-unanimous verdicts, and Oregon (according to an amicus brief it filed in Ramos) was considering doing the same until the Supreme Court took up the case. Well, now Oregon’s going to have to get off the fence. In some ways, the Court’s decision in Ramos is even more fractured than in Apodaca. The principal opinion, by Justice Gorsuch, was joined in its entirety only by two other Justices, Breyer and Ginsburg. Two more Justices, Sotomayor and Kavanaugh joined most of Gorsuch’s opinion but rejected some key aspects of it, and for different reasons. And then there was Justice Thomas, concurring in the judgment but joining none of Gorsuch’s opinion. Even the dissenters (the Chief, Alito, and Kagan) were slightly fractured, but at least they only produced one opinion (written by Alito). The result is five separate opinions, joined by some very strange bedfellows, but one fairly clear holding: the Sixth Amendment right to a jury trial—incorporated against the States by way of the Fourteenth Amendment—requires a unanimous jury verdict to convict a defendant of a serious offense.

Justice Gorsuch’s opinion for the Court began, of course, with the text of the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” Though the Constitution provides no further insight into what a “trial by an impartial jury” entails, Gorsuch insisted that “[w]herever we might look to determine” the phrase’s meaning, “whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict.” Indeed, by the time the Sixth Amendment was ratified, a common-law requirement of jury unanimity in criminal cases had existed (with a few sporadic interruptions) for about 400 years. What’s more, the Supreme Court itself has repeatedly stated (albeit in dicta), that the Sixth Amendment requires jury unanimity. But then, in Justice Gorsuch’s words, “the Sixth Amendment’s otherwise simple story took a strange turn in 1972.” That’s when the Court first confronted the outlier regimes of Oregon and Louisiana in Apodaca and its companion case, Johnson v. Louisiana (1972). As described above, Apodaca was a mess. Though a majority of Justices (Powell plus the dissenters) believed that the Sixth Amendment requires unanimity, a single Justice concluded that the requirement does not apply to the States—based on a view of the Fourteenth Amendment that had already been, and remains, foreclosed by precedent.

Notwithstanding that a majority of the Court had already concluded that the Sixth Amendment requires unanimity, Louisiana in this case urged the Court to consider the question afresh and hold that it does not. The State acknowledged that the common law required unanimity, but argued that the Framers intended to leave that requirement out of the Sixth Amendment, as demonstrated by the fact that an initial draft of the Amendment did mention unanimity as a requirement. But Justice Gorsuch maintained that the better interpretation of that drafting history is that the explicit reference to unanimity (among other “accustomed requisites”) was removed because it was “so plainly included in the promise of a ‘trial by an impartial jury’ that the [Framers] considered the language surplusage.” Gorsuch also refused Louisiana’s invitation to conduct a new cost-benefit analysis to update the one performed by the plurality in Apodaca: “As judges, it is not our role to reassess whether the right to a unanimous jury is ‘important enough’ to retain.”

Thus far, almost everything Justice Gorsuch had written was joined endorsed as well by Justices Ginsburg, Breyer Sotomayor, and Kavanaugh (the lone exception being Justice Kavanaugh’s rejection of some of Gorsuch’s comments on how the Court has never been able to make sense of Apodaca). But hereafter, things start to take an Apodaca-like turn, with different combinations of Justices joining different parts of the principal opinion. Joined only by Justices Ginsberg and Breyer, Justice Gorsuch argued that Apodaca was never binding precedent to begin with because Powell, the decisive fifth vote, agreed that the Sixth Amendment requires unanimity and only joined the majority based on his unique “dual-track theory of incorporation,” which “a majority of the Court had already rejected (and continues to reject).” To accept his idiosyncratic reasoning as precedential, Gorsuch argued, would mean embracing the dubious proposition “that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.” Notably, only Justices Ginsburg and Breyer joined this portion of Gorsuch’s opinion. Sotomayor and Kavanaugh were apparently unwilling to go so far as to say Apodaca was never precedent to begin with, but they agreed that it should be reversed—though for different reasons, described below.

Sotomayor and Kavanaugh jumped back on Gorsuch’s train for the next part of his opinion, which argued that even if Apodaca was a valid precedent, it should be reversed. As Gorsuch noted, “stare decisis has never been treated as an inexorable command,” and “the doctrine is at its weakest when we interpret the Constitution because a mistaken judicial interpretation of that supreme law is often practically impossible to correct through other means.” The Court has therefore considered several factors when revisiting precedent: “the quality of the decisions’ reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision” Applying these factors, the majority (all five) concluded that Apodaca was no longer worthy to be binding precedent. Not one of the nine Justices would actually defend either the plurality opinion or Justice Powell’s concurrence; nor would anyone contend that it was consistent with related decisions on the meaning of the jury right, or incorporation; legal developments since (particularly with regard to incorporation doctrine) show that Apodaca has not aged well; and neither Louisiana nor Oregon could make out a compelling showing that reliance interests justified hanging on to the discredited decision. This last issue, reliance, was certainly the trickiest, and the one the dissenters objected to most vehemently. As the dissenters pointed out, reversing Apodaca would require retrying a great number of defendants convicted by non-unanimous verdicts. In the majority’s view, this potential disruption was not significant enough to warrant upholding bad law. After all, only two states are involved and the number of defendants convicted by non-unanimous verdicts whose cases were still on direct appeal numbered only in the hundreds. Though it was true that prisoners whose non-unanimous convictions are final would likely bring habeas challenges, the majority doubted they would succeed. Most new rules of criminal procedure are not applicable on collateral review, and the test for retroactivity itself takes into account States’ reliance interests. (Justice Kavanaugh did not joint this portion of the opinion, writing separately to expressly state his view that this new rule requiring unanimity does not apply retroactively.)

Justice Sotomayor, who joined all but the portion of Gorsuch’s opinion questioning whether Apodaca ever qualified as a binding precedent, wrote separately to stress why overruling it was necessary, and far more warranted than in other recent cases where the Court has overruled prior decisions. Like Gorsuch, she regarded Apodaca as particularly shaky precedent to begin with, “a universe of one—an opinion uniquely irreconcilable with not just one, but two, strands of constitutional precedent well established both before and after the decision.” She further argued that the considerations favoring stare decisis are at their nadir in cases concerning criminal procedure, and at their acme in cases involving property and contract rights. The decision to reverse Apodaca, therefore, was far more justified than other recent cases overturning precedent, including Janus v. AFSCME (2018) and South Dakota v. Wayfair, Inc. (2018). To be sure, there are costs associated with having to retry criminal cases, but those costs exist every time opinions force changes in criminal procedure and yet the Court has not been deterred in recognizing new rules of criminal procedure when warranted. Finally Justice Sotomayor argued that the overtly racist origins of Louisiana and Oregon’s regimes (described, as well, in the majority opinion) made them particularly ripe for reconsideration. In sum, while she agreed that “overruling precedent must be rare,” she argued that “this Court should not shy away from correcting its errors where the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.”

Justice Kavanaugh also wrote separately—in what is likely to be the most closely scrutinized opinion of his career—“to explain [his] view of how stare decisis applies to this case.” He began by extolling the importance of the doctrine, but observed that every member of the Court has, at one time or another, recognized the need to reverse prior decisions. And he noted, with an all-star string cite, that “some of the Court’s most notable and consequential decisions have entailed overruling precedent,” including “the single most important and greatest decision in this Court’s history, Brown v. Board of Education.” Kavanaugh went on to provide his views on when it is appropriate to set aside stare decisis, which frankly sounded a lot like the reasons provided in the lead opinion: The doctrine is more rigid in statutory cases, where erroneous decisions can be corrected through new legislation, and more flexible in constitutional cases, where the only means of correcting a bad decision is through reversal or constitutional amendment. But even in constitutional cases, to overrule constitutional precedent requires something “over and above the belief that the precedent was wrongly decided.” He then identified seven factors that the Court has previously cited in deciding whether to adhere to precedent, and concluded that they really fall under three overarching questions: First, is the prior decision not just wrong, but egregiously wrong? Second, has the prior decision caused significant negative jurisprudential or real-world consequences? And third, would overruling the prior decision unduly upset reliance interests? Applying those questions here, Justice Kavanaugh agreed that Apodaca should be overruled. First, almost everyone agrees that its reasoning is egregiously wrong. Second, while it may be “workable,” Apodaca causes significant negative consequences in that it sanctions the conviction of some defendants who might not be convicted under the correct constitutional rule requiring unanimity. (The racist history of the non-unanimous regimes also weighed in favor of reversal under this factor.) Finally, reversing Apodaca would not unduly upset reliance interests, as only two states have convicted defendants with non-unanimous verdicts. Like Gorsuch, Justice Kavanaugh recognized that there may be collateral challenges to non-unanimous convictions. But while Gorsuch (and Ginsburg, Breyer, and Sotomayor) said that was a question for another day, Justice Kavanaugh went further and affirmatively stated that the unanimity rule announced today should not be retroactive under Teague.

Those three opinions make up a fairly solid five-Justice majority in favor of overruling Apodaca. But, in fact, there was a sixth vote. Justice Thomas concurred in the judgment, agreeing that Ramos’s non-unanimous conviction was unconstitutional, but wrote separately to restate his idiosyncratic view that the Bill of Rights should be incorporated against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause. On this question, Justice Thomas has been consistent (and quite possibly correct), but notably alone. The Court’s other formalists—Gorsuch and Scalia, e.g.—have in the past agreed that the Privileges or Immunities Clause makes more sense as a vehicle for incorporating rights against the States, but concluded that it makes no practical difference which vehicle is chosen. That said, it’s interesting to note that one of his intellectual allies in the cause, Justice Gorsuch, did not take this opportunity to pivot toward a Privileges or Immunities vehicle. (Would it have resulted in an even more fractured majority?)

This brings us, at last, to the dissenters—Chief Justice Roberts and Justices Alito and Kagan. But even they were somewhat fractured, with Justice Kagan bowing out of a portion of the opinion that distinguished other recent decisions overruling prior precedent. Justice Alito began the dissent by castigating the majority for needlessly accusing Louisiana and Oregon of racism when their current non-unanimous regimes has been adopted or ratified for non-racist reasons. He then criticized the portion of Justice Gorsuch’s opinion (joined only be Breyer and Ginsburg) that suggested that Apodaca was not really a binding precedent to begin with. This idea, Alito argued, was flatly at odds with Marks v. United States (1977), the Supreme Court case that provides the rule for determining the holding of a decision with no majority opinion. He also defended (without quite endorsing) the reasoning of both the Apodaca plurality and Justice Powell’s concurrence, neither of which was so egregiously wrong as to warrant reversal. But principally, Justice Gorsuch maintained that reliance interests compelled adherence to Apodaca. That case was decided nearly fifty years ago and, in the decades since, no Justice had even hinted that it should be overruled. (Notably, the Court has denied cert repeatedly in petitions brought by Louisiana and Oregon inmates, as recently as 2018.) Therefore, Louisiana and Oregon understandably concluded that they were in good stead when they tried thousands of cases under rules permitting non-unanimous verdicts. At a minimum, all of those cases that are still on direct appeal must still be retried. But those cases are only the beginning, Alito insisted. Prisoners whose convictions are final will bring habeas petitions arguing that the unanimity rule should apply retroactively, a risk that Justice Alito felt Gorsuch and the concurring Justices treated too dismissively. Weighed against the States’ reliance interests, Alito did not believe the interests of criminal defendants convicted by non-unanimous juries held up. It is not accurate, he maintained, to assume that a defendant convicted on a 10-2 verdict would have been acquitted if unanimity was required. Justice Alito (in a portion of his opinion not joined by Justice Kagan) went argue that the reliance interests in this case were far greater than those in other recent decisions where the Court has reversed prior precedent, including Franchise Tax Board v. Hyatt (2019)Knick v. Township of Scott (2019), and South Dakota v. Wayfair (2018)—taking approximately the opposite view of those cases as Justice Sotomayor in her concurrence. (Perhaps not surprisingly, Alito felt his own majority opinion had adequately considered the reliance interests at stake in Janus v. AFSCME (2018), the public-sector unions decision that reversed Abood v. Detroit Board of Ed. (1977).)

At the end of the day, though there were more separate opinions in Ramos than in Apodaca, there is at least a fairly clear holding: The Sixth Amendment does require unanimity for serious criminal convictions, and that requirement applies equally to the States. What remains less clear, however, is how the various Justices opinions in this case will impact their votes in future cases challenging other precedents, including ones that people feel a bit more strongly about than Apodaca v. Oregon. As Justice Kavanaugh pointed out, every member of the current Court has voted to overturn precedent at one point or another, and a good number of them have written passionate defenses of stare decisis as well. It will be interesting to see the degree to which the unique alignment of alignment of Justices in Ramos will hold up in future cases, including this term’s June Medical Services v. Russo.

Speaking of interesting alignments, Justices Gorsuch and Sotomayor paired up again (albeit in dissent) in Monday’s second decision, Thryv, Inc. v. Click-to-Call Tech, LP (No. 18-916), where a seven-member majority of the Court held that the timeliness of an inter partes review proceeding under federal patent law is a determination not subject to judicial review.

Under 35 U.S.C. § 314, a party challenging a patent can request that the U.S. Patent and Trademark Office (PTO) institute “inter partes review”—a proceeding to reconsider the validity of a patent already granted.  The PTO’s “determination . . . whether to institute an inter partes review” is “final and nonappealable.” The statute also provides that inter partes review “may not be instituted” if the challenger’s request come more than a year after a patent infringement suit is filed against the challenger. In this case, the PTO instituted inter partes review upon the request of patent challenger Thryv, Inc. and ruled in Thryv’s favor, canceling Click-to-Call Technologies’ patent claims involving technology for anonymous phone calls. Click-to-Call appealed to the Federal Circuit, which initially dismissed the appeal as barred by § 315(b). But, following an intervening en banc decision of the Federal Circuit in another case, the Federal Court granted rehearing and vacated the PTO’s decision, agreeing with Click-to-Call that Thryv’s request for inter partes review was untimely under § 315(b).

Overturning the Federal Circuit’s rehearing decision, the Supreme Court found that the initial Federal Circuit ruling got it right.  Joined by six of her colleagues (except as to a single portion of the opinion joined only by four other Justices), Justice Ginsburg concluded that the PTO’s determination of timeliness under § 315(b) is part of the overall “determination . . . whether to institute an inter partes review,” which is “final and nonappealable,” per § 314(d). Thus, the Federal Circuit lacked jurisdiction to hear the appeal of the PTO’s decision.  The majority held that the issue was controlled by the Court’s 2015 decision in Cuozzo Speed Technologies, LLC v. Lee, which had applied § 314(d)’s jurisdictional bar to the PTO’s determinations as to a different precondition to inter parties review proceedings. Justice Ginsburg was also swayed by the purpose of § 314(d), which is to streamline the patent system and “minimize burdensome overlap between inter partes review and patent-infringement litigation,” rather than “wasting the resources spent resolving patentability and leaving bad patents enforceable.” 

Justice Gorsuch, joined by Justice Sotomayor, dissented. In their view, the statute did not clearly mandate the majority’s reading, which should be disfavored because it permits “property-taking-by-bureaucracy” and insulates from judicial review not merely “the merits of the agency’s decision” but rather agency proceedings that “were unlawful from the start.”

Finally, in Atlantic Richfield v. Christian(No. 17-1498), the Court addressed whether the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) strips state courts of jurisdiction over landowner suits for restorations damages, and who qualifies as “potentially responsible parties” (“PRPs”) under the Act . Chief Justice Roberts wrote for the majority, holding that, although state courts retain jurisdiction over such claims, the Montana Supreme Court nevertheless erred when it held that the landowners in question were not PRPs under the Act, such that they must first seek EPA approval before pursuing restoration damages. Justices Alito and Gorsuch (Thomas joining) wrote separately to concur in part and dissent in part.

The Anaconda Copper Smelter in Butte, Montana contaminated an enormous swath of land with arsenic and lead for nearly a hundred years. The EPA has been working with the company that now owns the smelter, Atlantic Richfield, for decades to implement a cleanup plan under CERCLA­­­­. Separately, a group of landowners sued Atlantic Richfield under Montana law, seeking “restoration damages,” among other things. In Montana, such restoration damages must be spent on land rehabilitation. Accordingly, the landowners submitted a proposed restoration plan upon which the restoration dollars would be spent. That plan went well beyond the scope of the cleanup plan the EPA had already agreed to with Atlantic Richfield.

The suit raised two questions: (1) Whether CERCLA § 113, which strips federal courts of jurisdiction to review challenges to EPA cleanup plans, applies to state courts as well; and (2) whether the landowners qualified as PRPs” under CERCLA § 122, such that they were required to seek approval from the EPA for any potential property rehabilitation plan. The Montana Supreme Court answered “no” to both. The U.S. Supreme Court granted cert to address both questions.

True to form, Chief Justice Roberts began with a lengthy historical account of CERCLA, as well as an engaging, if largely irrelevant, history of the smelting plant at issue in the case. The Court then quickly rejected an argument from the landowners that, because the Montana Supreme Court allowed the case to proceed to trial, the judgment was not final and therefore not subject to certiorari. That was wrong: because the case was heard as a supervisory writ proceeding—which, under Montana law, is a “self-contained case, not an interlocutory appeal”—the judgment was final and subject to review.

The Court then turned to the real jurisdictional question: whether Section 113 applies to strip state courts of jurisdiction over CERCLA claims. The Court homed in on “arising under” language in the jurisdictional provisions of CERCLA to conclude that yes, state courts do not have jurisdiction over claims brought under the Act, but Section 113 does not apply to strip state courts of jurisdiction over claims brought under “other sources of law.” Atlantic Richfield offered a fairly convoluted argument to the contrary, contending that CERCLA only grants jurisdiction to federal—not state—courts precisely so that it can strip away that jurisdiction and limit judicial review over cleanup plans.  The Court rejected this argument on several bases, concluding that the Act’s language plainly supports its more limited interpretation of the jurisdiction-stripping provisions. Nothing in the Act’s language suggests that Congress intended to prevent state courts from having jurisdiction over state law claims.

Although the Montana Supreme Court got the jurisdictional question right, it erred on the second key issue: whether the landowners qualified as PRPs such that they were required to obtain EPA approval for any proposed restoration plan.  The Act gives a very broad definition of PRP: It includes, among others, anyone who owns a “site or area where a hazardous substance has . . . come to be placed.” The landowners owned land upon which arsenic and lead had “come to be placed”—after all, the presence of those substances formed the basis for their lawsuit against Atlantic Richfield. Accordingly, the landowners qualified as PRPs under the Act. The landowners’ primary argument to the contrary was that they were outside the Act’s six-year statute of limitations period for recovery of remedial costs, and so they can no longer be held liable as PRPs in any hypothetical suit. The Court rejected that argument: just because one can no longer be held liable because the limitations period has run does not mean one does not “fall within the broad definitions of PRPs” in the Act. Furthermore, the Court noted, including property owners in the definition in this way furthers the Act’s stated goals of creating a comprehensive environmental response to waste pollution.

The Court easily rejected several other arguments from the landowners, including by engaging in an extended elephant/mousehole metaphor to explain why it is perfectly acceptable that property owners should be considered PRPs under the Act’s provisions describing how settlements between polluters and the EPA should work. By including landowners as PRPs, the Act encourages them to participate in such settlements. The Court also rejected the notion that the Act’s “saving clauses,” which state that it does not preempt liability or requirements under state law generally, supported the landowners’ position, emphasizing that such clauses cannot be interpreted in a manner that is “absolutely inconsistent with the provisions of the act in which they are found.”

Finally, the landowners also argued that they qualified as “contiguous property owners” under one section of the Act, such that they were outside of the definition of PRPs. But there are numerous requirements one must satisfy to count as a contiguous property owner, including that they “did not know or have reason to know” that their property was contaminated. And according to the court, everyone in the area knew that the Anaconda smelter was a serious contaminator.

Thus, the Court held that, although state courts do keep jurisdiction over state law claims not directly “arising under” CERCLA, the Montana Supreme Court erred when it held that the landowners in this case were not PRPs.

Justice Alito joined the majority of the Court’s opinion but dissented as to the Court’s conclusion that “state courts have jurisdiction to entertain ‘challenges’ to EPA-approved CERCLA plans.” Deciding that question was not “necessary or prudent” for the present case—because more than likely the EPA would not approve the landowners’ plan on remand—and the Court’s decision could improperly empower state courts and state juries to believe that they can “disregard the EPA’s expert judgment regarding the best plan for a CERCLA site.” Justice Alito went on to suggest that the Court’s statutory interpretation of § 113 was flawed in several respects, and that it would have been better not to resolve the “perplexing” question of what CERCLA really means at this juncture.

Justice Gorsuch, joined by Justice Thomas, also concurred in part and dissented in part. He took issue with the Court’s decision that the landowners were PRPs under the Act. He identified several purported errors in the Court’s analysis of the Act, focusing primarily on what he maintained was a distinction in the Act between “covered persons” on the one hand, and PRPs on the other. Where the Court treated these groups as effectively identical based on prior precedent, Justice Gorsuch would treat them differently: a person can be “covered” under the Act—i.e. someone the Government is authorized to sue for cleanup purposes—and someone who is a PRP—i.e. someone who has been identified as being potentially responsible for the mess in the first place. Because the landowners cannot be held responsible—because, among other reasons, the limitations period had run—they cannot be PRPs. And Justice Gorsuch rejected any policy argument, suggesting that it cuts “both ways” because, although “paternalistic central planning” may not be able to “tolerate state law efforts to restore state lands,” nevertheless “good government and environmental protection” might be “better served if state law remedies proceeded alongside federal efforts.” For Justice Gorsuch, CERCLA sought to add to, not detract from, state law remedial efforts.

All in all, a busy week for Justice Gorsuch—who wrote an opinion in all three cases decided Monday, as well as one of Thursday’s cases. About those, we’ll have more on Monday. Until then, have a great weekend!

© 1998-2023 Wiggin and Dana LLPNational Law Review, Volume X, Number 118

About this Author

Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT

Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

David Roth Litigation lawyer Wiggin Dana

David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...