                                                                                                                           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Precedential or Non-Precedential: Precedential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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                                      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.




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