The Right to Trial by Jury in CERCLA Cost-Recovery and Contribution Actions

Christopher G. Smith

Editors' Summary: Federal district courts are nearly unanimous in holding that the right to trial by jury under the Seventh Amendment to the U.S. Constitution does not apply to CERCLA cost-recovery and contribution actions, because those actions are for equitable restitution rather than legal damages. The author suggests that the district courts have erroneously concluded that these actions seek equitable restitution. The Article begins by discussing the U.S. Supreme Court's Seventh Amendment analysis for determining whether actions brought under federal statutes are legal or equitable. Applying this analysis to CERCLA cost-recovery and contribution actions in concert with long-standing principles of equity, the author concludes that CERCLA litigants have a right to a jury trial, because such actions involve legal rather than equitable issues, and seek legal rather than equitable relief.

Mr. Smith is an associate at Cleary, Gottlieb, Steen & Hamilton in Washington, D.C. The author thanks Charles F. Lettow and Jessica Smith for comments made on drafts of this Article. Mr. Lettow is a partner at Cleary, Gottlieb, Steen & Hamilton. Ms. Smith is an associate at Covington & Burling in Washington, D.C.

[25 ELR 10185]

Nearly all parties seeking to obtain trial by jury in a cost-recovery or contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) have failed.¹ The federal district courts, with near unanimity, have held that there is no right to trial by jury in a CERCLA cost-recovery or contribution action.² No federal appellate court has meaningfully addressed the issue.³ The district courts generally have reasoned that a CERCLA action, [25 ELR 10186] whether a cost-recovery action brought under § 107(a)(4)(A) or (B) or a contribution action under § 113(f)(1),⁴ is an action for equitable restitution, not an action at law for legal damages. Consequently, they have held that the right to trial by jury under the Seventh Amendment to the U.S. Constitution does not apply.⁵

Liability for cleanup costs at a Superfund⁶ site is strict, retroactive, and potentially enormous. If not divisible, the liability is joint and several. Overall, the liability seems unfair given traditional principles of fault. The right to trial by jury is a fundamental constitutional right and is important in the CERCLA context. Depending on the circumstances, it is possible that a jury would be the preferred fact finder for certain defendants — particularly for a defendant whose role at a Superfund site is comparatively minor.⁷ In some situations, a jury may be more sensitive to the unfairness of CERCLA's liability scheme. Additionally, improper denial of the right to trial by jury is constitutional error, and so is reversible error.

The U.S. Supreme Court has guarded carefully against encroachments on the Seventh Amendment right to trial by jury. Its analysis of the right emphasizes the nature of the remedy sought in a particular action. When the nature of the remedy sought is legal, there is a right to trial by jury. When the nature of the remedy sought is equitable, there is no right to trial by jury.

In CERCLA actions federal district courts have not, for the most part, conducted the requisite careful examination of the nature of the remedy sought. Thus, they have wrongly concluded that CERCLA actions are equitable in nature. The situation is not unlike that which preceded the Supreme Court's decision in Tull v. United States.⁸ In Tull, the Court held that there is a right to trial by jury in civil penalty cases brought by the United States under the Federal Water Pollution Control Act.⁹ Before Tull, district courts routinely denied jury demands in such civil penalty cases. The situation required Supreme Court review to set matters right. Similarly, whether there is a right to trial by jury under CERCLA is an issue ripe for appellate review.¹⁰

This Article demonstrates that given the Supreme Court's Seventh Amendment analysis, the nature of the remedy sought in CERCLA cost-recovery and contribution actions is legal, and that there is a right to trial by jury for such claims.

The Seventh Amendment Right to Trial by Jury

The Seventh Amendment provides that "[i]n [s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."¹¹ Suits at common law are civil claims that are legal in nature.¹² That is, suits where "legal rights [are] to be ascertained and determined, in contradistinction to those where equitable rights alone [are] recognized, and equitable remedies [are] administered."¹³ The claim may be based on a common law or statutory cause of action.¹⁴ Thus, the right to trial by jury attaches to both common law and statutory actions, so long as they are "legal" in nature.¹⁵ No right to a jury trial exists for equitable actions.

As an abstract matter, the law of the Seventh Amendment merely requires distinguishing between legal and equitable actions. The Supreme Court has set forth a two-step analysis to make this distinction. The Court has explained its analysis as follows: "First, we compare the statutory action to 18th-century actions brought in the courts of England before the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature."¹⁶

The Court has noted, however, that analogizing modern lawsuits to 18th-century actions can be an "abstruse historical inquiry."¹⁷ Accordingly, it has emphasized that the second step is more important than the first.¹⁸ The second step involves an examination of both "the nature of the issues involved and the remedy sought."¹⁹

The strong federal policy in favor of the right to a jury trial provides a background to the Court's two-step legal analysis. The Court has stated: "[M]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care."²⁰ Additionally, the Court has noted that changes in the Federal Rules of Civil Procedure [25 ELR 10187] have worked an expansion of the scope of legal relief and the reach of the Seventh Amendment right.²¹ Thus, some actions historically brought in equity courts are now brought at law.

When a party demands a jury trial, the jury is the trier of fact for any legal claim. This is true even when a dispute involves both equitable and legal claims. It is irrelevant for Seventh Amendment purposes whether the equitable issues in a dispute overwhelm the legal issues, because "[t]he Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action."²² All facts common to legal and equitable claims must be put to a jury.²³

The axiom that equity operates only where legal remedies are inadequate bolsters the strong federal policy favoring the right to trial by jury. "[T]he absence of an adequate remedy at law" is a "prerequisite" to bringing a suit in equity.²⁴ When adequate relief at law is available, no equity jurisdiction exists and the right to trial by jury obtains.

In sum, the Court's approach to the Seventh Amendment favors the litigant asserting the right to a jury trial. The precedents "lend impetus toward finding a right to trial by jury in doubtful cases."²⁵

Cost Recovery of Damages Under CERCLA § 107(a)(4)

The bulk of cases addressing the right to trial by jury in CERCLA cost-recovery actions have arisen under subsections (A), (B), and (C) of § 107(a)(4).²⁶ Because the nature of the issues and the remedy sought varies with each subsection, each presents different issues for consideration under Seventh Amendment jurisprudence. Thus, this Article analyzes each subsection separately.²⁷

[] Section 107(a)(4)(A). Section 107(a)(4)(A) permits the government to recover from a liable person "all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan."²⁸ The bulk of cases addressing the issue of the Seventh Amendment right to trial by jury in a CERCLA cost-recovery action have arisen in the context of a § 107(a)(4)(A) government enforcement proceeding. All federal courts considering a demand for a jury in a subsection (A) proceeding have held that there is no right to trial by jury.²⁹

United States v. Northeastern Pharmaceutical & Chemical Co.³⁰ and United States v. Reilly Tar & Chemical Corp.³¹ were the first cases to address the issue. Neither case conducts the historical inquiry the Supreme Court precedents require. Although both cases properly examine whether the remedy sought is legal or "purely equitable,"³² their analyses and conclusions are flawed.

The Northeastern Pharmaceutical and Reilly Tar decisions follow the same basic pattern of analysis. First, the courts characterize the remedy the government seeks as "restitution."³³ Second, the courts conclude that no right to a jury trial exists because restitution is a traditional equitable remedy. Reilly Tar states that "[restitution involves] restoring the status quo and ordering the return of what rightfully belongs to a party. [Restitution] is within the recognized power and within the highest tradition of a court of equity."³⁴

Most courts subsequently addressing the right to a jury trial cite either Northeastern Pharmaceutical or Reilly Tar, or cite cases relying on that pair of decisions. Most of these later cases make short work of the Seventh Amendment issue.³⁵ The few cases that meaningfully discuss the issue employ the two-step approach taken by Northeastern Pharmaceutical and Reilly Tar: First, the cases classify the relief sought by the government as restitution, and second, they state that restitution is an equitable remedy.³⁶ As demonstrated below, this analysis is wrong.

[25 ELR 10188]

The District Courts Have Wrongly Assumed That the Government Is Seeking Restitution in CERCLA Cost-Recovery Actions

The district courts have analogized the claim the government pursues in a § 107(a)(4)(A) action to the restitution action articulated in § 115 of the Restatement of Restitution.³⁷ But careful analysis of what the government seeks in a CERCLA cost-recovery action reveals that the remedy sought is not restitution.

In a multiple potentially responsible party (PRP) situation, the government typically pursues one of the PRPs. When the government is seeking "all costs of removal or remedial action incurred" from a single PRP, the nature of the remedy sought is quite unlike restitution. To analogize a § 107(a)(4)(A) claim to restitution, the government must be seeking compensation for performing "the duty of another" and demonstrate that it "is entitled to restitution from the other."³⁸ Restitution imposes on the defendant a duty to restore the plaintiff insofar as the defendant has been unjustly enriched.³⁹ When there are multiple PRPs at a site, and the government is seeking "all costs" from a single PRP, the government is seeking more from the PRP than what the duty of restitution requires.

The counter argument is that the PRP's duty under CERCLA is to reimburse the government for all its response costs. Thus, the government's remedy is restitution because it is seeking reimbursement only for its performance of the PRP's duty. This argument, however, is incorrect. First, CERCLA liability for all response costs is premised on joint and several liability, even though the statute on its face does not require imposing such liability. Joint and several liability is a legal doctrine the law courts invented.⁴⁰ Thus, if the duty to reimburse the government for all its response costs is premised on a court imposing joint and several liability, the government actually is seeking legal relief and the right to trial by jury obtains. Second, principles of CERCLA liability provide that a PRP does not owe the government all response costs when "there is a reasonable basis for determining the contribution of each cause to a single harm.⁴¹ The government cannot claim to be seeking restitution, much less equitable relief, when it seeks all its response costs but is only entitled to some.⁴²

The District Courts Have Wrongly Assumed in CERCLA Cost-Recovery Actions That Restitution Is a Historically Equitable Remedy

Historical scholarship on restitution demonstrates the divided jurisdiction over claims that fell under the rubric of "restitution" during the late 18th century.⁴³ Both law courts and equity courts entertained "restitution" actions.⁴⁴ The Restatement specifically notes that a person entitled to restitution "is entitled, in an appropriate case, to . . . (f) a judgement at law or a decree in equity for the payment of money."⁴⁵ The Restatment also sets forth the forms of action at law for restitution.⁴⁶

CERCLA § 107(a)(4)(A) cases do not consider the divided jurisdiction between the law courts and the equity courts over claims of restitution. Rather, the district courts have simply assumed that restitution is an equitable remedy.⁴⁷ [25 ELR 10189] This approach "ignores the fact that the jurisdictions of law courts and equity courts have always overlapped with respect to restitution."⁴⁸

The principle types of restitution claims equity courts historically entertained hardly seem analogous to CERCLA claims. As one authority explains:

The most notable equitable procedures to enforce restitution are the constructive trust, the equitable lien, and subrogation. These procedures give the plaintiff restitution by giving the plaintiff title to, or a security interest in a particular property; or in the case of subrogation, by giving the plaintiff the rights formerly held by another person.⁴⁹

In fact, CERCLA cost-recovery claims resemble more closely restitution actions heard at law. In particular, CERCLA cost-recovery actions seem more analogous to a particular form of restitution action entertained in the law courts: The assumpsit action of quantum meruit. The district courts postulate that CERCLA cost-recovery actions effect a return to the status quo ante by reimbursing the government.⁵⁰ Similarly, the quantum meruit action at law effected a return to the status quo ante by restoring a defendant's unjust enrichment to the plaintiff:

[Q]uantum meruit is a count used where the plaintiff has performed services for the defendant. As in many common court cases, the services may be performed at the defendant's request, so that an implied in fact contract might be found. However, services might be performed without the request of the defendant, but which nevertheless benefitted him in some way. If recovery is allowed for such unrequested services, it is clear that the recovery is the quasi-contract sort, that is, based upon the principle against unjust enrichment and not on contract.⁵¹

The district courts have invoked restitution as a "talisman" to conclude that the remedy must be equitable.⁵² A look behind the label, however, demonstrates that courts entertained restitution claims both at law and equity. Indeed, CERCLA claims more closely resemble the type of restitution claims over which law courts historically had jurisdiction than the kind of restitution claims over which equity courts historically had jurisdiction.

The District Courts Have Wrongly Concluded That the Remedy the Government Seeks in a CERCLA Cost-Recovery Action Is Equitable

The nature of the remedy sought is dispositive of the Seventh Amendment issue. Regardless of whether restitution is at issue, if the remedy sought in a CERCLA cost-recovery action is legal, the right to trial by jury exists. This section demonstrates that the nature of the relief the government seeks in a cost-recovery action is legal, not equitable.

To determine the nature of the remedy requires careful scrutiny of the relief the government actually seeks. Careful scrutiny of the relief sought is precisely the approach the Supreme Court cases require.⁵³ Many district courts have failed to examine the relief the government seeks. As previously discussed, the cases simply assert that the government seeks return of the status quo ante.⁵⁴

The government typically seeks recovery of all its response costs through its attempt to impose joint and several liability. But the government's reliance on joint and several liability defeats any pretense that what it seeks is equitable. As noted above, PRPs may be liable to the government for only a divisible portion of the response costs the government incurred.⁵⁵ In re Bell Petroleum Services, Inc., incisively illustrates this point. The case holds that a PRP is liable only for a portion of the costs when the damages are "reasonably capable of apportionment."⁵⁶ Thus, the government seeks more than it is equitably entitled to when it seeks all its response costs from a single PRP.

Indeed, it is a prerequisite to equity jurisdiction that "he who seeks equity must do equity."⁵⁷ As Pomeroy's Equity Jurisprudence states this principle, it would also deprive an equity court of jurisdiction over the government's attempt to recover all all response costs from a single PRP:

The meaning is, that whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief upon the party seeking its interposition and aid, unless he has acknowledged and conceded, or will admit and provide for, all the equitable rights, clalims, and demands justly belonging to the adversary party, and growing out of or necessarily involved in the subject-matter of the controversy.⁵⁸

When the government seeks all costs from a PRP, it is not seeking to do equity. Doing equity means seeking a PRP's fair share of the response costs.

This objection is still more acute when the government is seeking to recover from a PRP all the government's costs associated with a site and the government itself is also a PRP. Certainly, the government is not seeking an equitable remedy when it attempts to recover all its costs but may be liable for at least some of those response costs.⁵⁹ Black's Law Dictionary defines equity as "[j]ustice administered according to fairness as contrasted with the strictly formulated rules of common law."⁶⁰ It is unfair, [25 ELR 10190] and certainly not equitable, for a PRP to seek recovery for the harm it caused.

The prerequisite to equity jurisdiction that "he who comes into equity must come with clean hands" bolsters this objection.⁶¹ As Pomeroy states, this principle also would deprive an equity court of jurisdiction over a claim by the government when it is a PRP:

He who comes into equity must come with clean hands, is much more efficient and restrictive in its operation. It assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recognition and relief with reference to the subject-matter or transaction in question. It says that whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy.⁶²

These arguments do not obtain, however, when the government is an innocent party and the site involves a single PRP. In that case, arguably, the government is seeking only what is fair and just — that the polluter pay. Under these limited circumstances, the government's argument that it is seeking an equitable remedy is at its strongest.

But even in this situation, the relief sought is not equitable. Yet another prerequisite to equity jurisdiction — the prerequisite that no adequate remedy exists at law — demonstrates that jurisdiction over CERCLA cost-recovery claims lies at law.⁶³

In a § 107(a)(4)(A) claim, all the government seeks is money. The Supreme Court has stated many times that money is the classic form of "relief offered in the courts of law."⁶⁴ The Court never has held, however, that an award of monetary relief is by definition legal.⁶⁵ It would be a poor argument to assert that the relief sought is legal strictly because money is sought, as it is well within a court's equity powers to order monetary relief.⁶⁶

But the Supreme Court has stated that the "general rule" is that monetary relief is legal.⁶⁷ Similarly, the Court has stated that to characterize monetary relief as other than legal would require demonstrating "attributes" to justify an "exception to the general rule."⁶⁸ The party seeking to strike the jury demand should bear the burden of demonstrating this exception.

The government usually brings cost-recovery claims while response activities at a site are ongoing. Thus, the government's future response costs are unknown. But this is no bar to an adequate legal remedy, because the court can award known response costs against the PRP and issue a declaratory judgment on future costs.⁶⁹ Thus, the court can give complete relief at law to the government. While an equity court has the power to award monetary relief, that power is delimited by a court of law's inability to award such relief.⁷⁰

Hence, the nature of the relief the government seeks in a cost-recovery action is not equitable but legal. The government's recovery of all costs from a single PRP at a site in the multiple PRP context is not fair. And even when the government claims entitlement to full recovery from the single PRP, a court of law can give the government all the relief it seeks.

Section 107(a)(4)(B). Section 107(a)(4)(B) permits recovery of "any other necessary costs of response incurred by any other person consistent with the national contingency plan."⁷¹ This subsection provides for cost-recovery actions by innocent parties, states, and municipalities, who have undertaken a cleanup and incurred response costs.⁷² Rather than allowing liable parties to avail themselves of this cause of action, Congress intended for them to obtain contribution from other PRPs for any disproportionate payment of response costs.⁷³ While plaintiff PRPs should attempt to use this cause of action, the better view is to restrict its availability to innocent parties.⁷⁴

Some district courts have held, however, that a § 107(a)(4)(B) cause of action is available to a PRP who has settled with the government.⁷⁵ In fact, in United States v. Kramer, the court's dicta recognized that a PRP could realize a windfall by seeking recovery of "all its response costs" in a § 107(a) action.⁷⁶ This creates the possibility that a PRP might settle with the government, obtain contribution protection under § 113(f)(2) in the settlement, and then seek to recover all its response costs [25 ELR 10191] from another PRP.⁷⁷ As noted, the Seventh Amendment issue hinges on the nature of the remedy sought in a particular action. The nature of the remedy sought will depend on whether the plaintiff in the § 107(a)(4)(B) action is innocent or a PRP. Therefore, this Article addresses the two scenarios independently.

Section 107(a)(4)(B) Claims by Innocent Parties

The same Seventh Amendment analysis applies to § 107(a)(4)(B) claims as applies to government cost-recovery actions under § 107(a)(4)(A) when the government is innocent. In the multiple PRP context, the remedy sought is not restitution because in seeking "any other necessary costs" the plaintiff seeks more than what any single PRP owes. In both the single and multiple PRP contexts, the type of restitution sought is analogous to restitution available in courts of law as an action for quantum meruit. Additionally, when the innocent plaintiff is seeking to hold a PRP liable for more than its share of the response costs, the remedy sought is not equitable because fairness is a prerequisite to equity jurisdiction. Seeking to make a PRP pay more than its fair share is by definition not fair. Also, premising recovery of "any other necessary costs" on imposing joint and several liability entails the right to trial by jury because the relief sought is legal. Finally, in every circumstance, the relief sought — money — is classic legal relief and a court of law can provide all the relief the plaintiff is entitled to.

Section 107(a)(4)(B) Claims by PRPs

The arguments against equitable jurisdiction when the § 107(a)(4)(B) plaintiff is a PRP are even stronger than when the plaintiff is innocent. In addition to the arguments against equitable jurisdiction discussed in the preceding section, there is the argument that restitution is not at issue because restitution redresses unjust enrichment. The PRP, as a § 107(a)(4)(B) plaintiff, would obtain unjust enrichment if the court permitted it to recover the cost of its own wrongdoing from another. For the same reason, the remedy sought is not equitable because equity would not sanction a windfall recovery for a wrongdoer.

Section 107(a)(4)(C): Claims for Damages to Natural Resources. Section 107(a)(4)(C) permits recovery of "damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such release."⁷⁸

It is apparent that a right to trial by jury exists under this provision. Equitable relief is not even arguably at issue because restoration of the status quo ante is not involved. "[T]he statute authorizes a money judgment for damages to natural resources, and the amount of those damages is not limited by what is needed to restore or replace the resources."⁷⁹ This remedy is "precisely the type a common law court could award."⁸⁰ While In re Acushnet River & New Bedford Harbor is the only case on point recognizing the right to trial by jury in a § 107(a)(4)(C) claim, no contrary authority exists.⁸¹

Contribution Under CERCLA § 113(f)(1)

CERCLA § 113(f)(1) provides "any person," including a PRP, with a cause of action for contribution against PRPs.⁸² Application of the Supreme Court's Seventh Amendment analysis to this provision reveals that a right to trial by jury exists for CERCLA contribution claims. As an initial matter, §§ 107(a)(4)(A) and (B) and 113(f)(1) provide distinct remedies. Section 107(a)(4)(A) allows recovery of "all costs" and § 107(a)(4)(B) allows recovery of "any other necessary costs." Section 113(f)(1) allows "contribution." Consequently, the Seventh Amendment requires careful examination of the remedy sought in a § 113(f)(1) contribution action. Simple reliance on § 107(a)(4) cost-recovery precedents does not satisfy the Seventh Amendment's requirements.

Most of the cases purportedly deciding the Seventh Amendment issue in the contribution context, however, have been mechanical in their reliance on § 107(a)(4) cost-recovery precedents. The decisions have not distinguished between the separate causes of action and have failed to undertake the requisite careful analysis of the nature of the remedy sought.⁸³ The failure of the lower courts to treat CERCLA contribution claims separately from CERCLA cost-recovery claims in the Seventh Amendment context may be due in part to the timing of the enactment of the contribution provision. Congress added § 113(f)(1) to CERCLA [25 ELR 10192] CLA in the Superfund Amendments and Reauthorization Act of 1986.⁸⁴ A substantial body of Seventh Amendment case law decided under § 107(a)(4) existed at the time of the provision's enactment,⁸⁵ and it appears that courts simply applied those precedents to § 113(f)(1) claims without examining, as the Seventh Amendment requires, "the nature of the issue to be tried."⁸⁶ Until recently, no district court case even acknowledged that the Seventh Amendment inquiry is different for cost-recovery and contribution claims.

Only three district court cases — Hatco Corp. v. W.R. Grace & Co., American Cyanamid Co. v. King Industries Inc., and United States v. Shaner — treat § 107(a)(4) cost-recovery claims and § 113(f)(1) contribution claims as presenting separate issues for Seventh Amendment purposes and address the Seventh Amendment issue in the contribution context.⁸⁷ Only Shaner recognizes the Seventh Amendment right.

Both American Cyanamid and Hatco wrongly decided that there is no right to trial by jury in the CERCLA contribution context. American Cyanamid focused on the fact that a § 107(a)(4) cost-recovery claim was antecedent to the CERCLA contribution claim. The court reasoned that because the antecedent claim was equitable, the ensuing contribution claim itself is equitable:

Logically, plaintiffs' [contribution] right to recovery derives directly from the state and federal government's equitable right to hold defendants liable for response costs and to seek restitution. These issues of response cost liability and apportionment of restitutionary relief are equitable in nature, and do not entitle defendants to trial by jury.⁸⁸

Hatco cites American Cyanamid and adopts its analysis: "The Court concludes that there is no right to a jury trial under [§ 113(f)] where the precipitating claim is a claim in equity under [§ 107(a)] for recovery of clean-up costs."⁸⁹

As demonstrated above, the premise of Hatco and American Cyanamid is incorrect. Section 107(a)(4) cost-recovery claims are not equitable. While American Cyanamid and Hatco recognize that cost-recovery and contribution claims are distinct, they fail to undertake the requisite Seventh Amendment analysis, relying instead on their erroneous characterization of the nature of cost-recovery actions. Consequently, neither American Cyanamid nor Hatco addresses the remedy the contribution plaintiff seeks.

In contrast, while Shaner does not apply the Supreme Court's Seventh Amendment analysis, the decision properly focuses on the remedy the plaintiff seeks, concluding that the nature of the remedy is legal:

[I]t is plain that the obligation of a joint tort-feasor to contribute arises out of the tort and the fact that one seeking contribution has paid more than his fair and just share. The word "equitable" as mentioned in the decisions does not mean a matter for chancery. It does not mean "equity" as opposed to "law." It is founded upon natural justice, and when words "equitable" or "equity" are used, reference is made to an attempt to do right and to deal fairly between the parties. Nonetheless, it is a legal right enforced in actions at law where the parties have a right to a jury trial.⁹⁰

As the Shaner court noted, federal courts in other contexts have recognized that contribution is a legal claim which entails the right to trial by jury.⁹¹ Additionally, application of the Supreme Court's Seventh Amendment analysis demonstrates that Shaner was correct in recognizing the right to trial by jury in a CERCLA contribution claim.

No 18th-Century Analog to a CERCLA Contribution Claim Exists

The first step in the Seventh Amendment inquiry is inapplicable here because no analog exists to a CERCLA contribution claim, either at law or in equity. "[T]he common law rule [was] that there can be no contribution among those who are regarded as 'joint tortfeasors.'"⁹² Although some American courts during the 19th century rejected this rule and provided some form of contribution in instances of negligence or mistake among tortfeasors, "[t]he great majority of our courts proceeded to apply [the rule] generally, and refused to permit contribution."⁹³ Consequently, contribution has evolved as a statutory right, predominantly during this century.⁹⁴

Also, no action existed in equity analogous to a CERCLA contribution claim. Equity courts did have jurisdiction over a limited group of actions classified under the rubric "contribution."⁹⁵ For example, equity jurisdiction existed over actions by a surety to a debt against the co-sureties for recovery of sums paid on the debt in excess of the surety's proportionate obligation.⁹⁶ These actions, however, are not comparable to the modern statutory CERCLA contribution action, and they existed only when the remedy at law was inadequate.⁹⁷

Even if those equity actions are close equivalents to [25 ELR 10193] the modern CERCLA contribution action, close equivalence, without more, cuts in favor of recognition of the right to jury trial. As the Supreme Court stated: "The fact that the subject matter of a modern statutory action and an 18th-century English action are close equivalents 'is irrelevant for Seventh Amendment purposes,' because 'that Amendment requires trial by jury in actions unheard of at common law.'"⁹⁸

Contribution Is Legal in Nature

Shaner concludes that a CERCLA contribution claim is legal for two reasons: First, the CERCLA right to contribution arises out of a legal wrong, and second, contribution is treated as a legal cause of action under other federal statutes.⁹⁹ The decision is correct in both regards and a close examination of the nature of the remedy the contribution plaintiff seeks bolsters its holding. Additionally, limitations on equity jurisdiction also demonstrate that jurisdiction over CERCLA contribution claims is at law, not equity.

Through the vehicle of contribution, the contribution plaintiff — typically a PRP — seeks a fair allocation of costs. The contribution plaintiff does not, indeed cannot, seek anything more. Juries allocate costs all the time. There is simply nothing about the relief sought in a contribution claim that a court of law cannot provide. Under these circumstances, the remedy at law is entirely adequate and bars equity jurisdiction.

In addition to the traditional capacity of a jury to allocate costs, courts in CERCLA contribution actions have the statutory power to "allocate response costs among liable parties using such equitable factors as the court determines are appropriate."¹⁰⁰ As previously noted, equity courts awarded pure monetary relief in certain actions, classifying some of these actions under the rubric "contribution."¹⁰¹ But the inability of a court of law to award monetary relief delimited an equity court's ability to award such relief.¹⁰² CERCLA contribution plaintiffs seek precisely what the court is statutorily empowered to grant — fair allocation of costs. Resort to judicial equitable powers adds nothing in the CERCLA contribution context. Legal relief is complete.¹⁰³

In addition to the availability of adequate legal relief, the typical contribution plaintiff is a PRP. Consequentlly, the doctrine of unclean hands bars equity jurisdiction.¹⁰⁴

In addition to the availability of adequate legal relief, the typical contribution plaintiff is a PRP. Consequently, the doctrine of unclean hands bars equity jurisdiction.¹⁰⁴

Strategic Decisions in Seeking Trial by Jury

Whether to demand trial by jury is a strategic decision that parties and their counsel must make on a case-by-case basis.¹⁰⁵ The manner in which to seek trial by jury also is a strategic decision. The jury demand is at its weakest when the plaintiff in a cost-recovery action is innocent and the site involves a single PRP. Asserting the right in this circumstance would require a frontal assault on the large body of adverse decisional law under § 107(a)(4). The plaintiff would base its challenge on the assertion that adequate legal relief precludes equity jurisdiction.

In the multiple PRP context, however, practitioners can avoid the § 107(a)(4) cost-recovery precedents through third-party practice. If a defendant seeks to bring in a third-party on a contribution claim, the defendant can demand trial by jury on that claim.¹⁰⁶ The third-party contribution claim necessarily involves allocation, thus putting the third-party plaintiff's actions at the site at issue.

The third-party plaintiff thereby can obtain jury review of the facts pertinent to his involvement at the site. Under Beacon Theatres Inc. v. Westover, the jury determines the facts common to the third-party contribution claim and the cost-recovery claim.¹⁰⁷

Parties also could employ this strategy even when the government is the cost-recovery plaintiff as well as the only other PRP. Defendants in this situation can try to obtain jury review of the facts pertinent to their liability by putting them at issue in a contribution counterclaim against the government.

The Supreme Court has held that "the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government."¹⁰⁸ The United States, as sovereign, [25 ELR 10194] defines the terms and conditions on which it may be sued.¹⁰⁹ Any waiver of that immunity must "affirmatively and unambiguously" provide for jury trial.¹¹⁰ But the United States has agreed to trial by jury in CERCLA § 120(a)(1). That provision states:

Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.¹¹¹

The Supreme Court has stated that this waiver is "unequivoca[l]" and "unqualified."¹¹²

Thus, parties can avoid the substantial body of case law holding that there is no right to trial by jury in a § 107(a)(4) cost-recovery action. Cost-recovery defendants can seek jury review of facts pertinent to their actions through third-party contribution or counterclaim contribution actions.

Conclusion

District courts have erred in denying CERCLA cost-recovery and contribution litigants the right to trial by jury. The district court decisions do not reflect a careful application of the Supreme Court's Seventh Amendment analysis, nor do the decisions reflect any deference to the strong federal policy favoring trial by jury. Rather, the district court decisions mechanically conclude that the nature of CERCLA cost-recovery and contribution actions is equitable.

Careful analysis of the relief cost-recovery and contribution plaintiffs actually seek demonstrates that the nature of the remedy is legal. Equity has no jurisdiction over an action in which a PRP or an innocent party seeks to hold a PRP liable for more than its fair share of cleanup costs. Additionally, a court of law can provide all the relief CERCLA plaintiffs seek. There can be no equity jurisdiction over a CERCLA cost-recovery or contribution claim — and no denial of the right to trial by jury — when there is adequate relief at law.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 749, 17 ELR 20603, 20614 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); Town of Jaffrey v. Town of Fitzwilliam, 846 F. Supp. 3, 7, 24 ELR 21021, 21023 (D.N.H. 1994); Hatco Corp. v. W.R. Grace & Co., 859 F. Supp. 769, 773 (D.N.J. 1994); United States v. Witco Corp., No. 94-0662, slip op. at 1 (E.D. Pa. July 12, 1994); American Cyanamid Co. v. King Indus., Inc., 814 F. Supp. 209, 214 (D.R.I. 1993); Thaler v. PRB Metals Prods., Inc., 810 F. Supp. 49, 50 (E.D.N.Y. 1993); United States v. Giles Armature & Elec. Works, No. S91-0042-C, slip op. at 1 (E.D. Mo. Jan. 27, 1992); United States v. Peppers Steel & Alloys, Inc., Nos. 85-0571, -1531, slip op. at 6 (S.D. Fla. Jan. 17, 1992); Richmond, F. & P. R.R. v. Clark, No. 90-00336, 1991 WL 321033, at *4 (E.D. Va. Jan. 22, 1991); Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1390, 22 ELR 20614, 20620 (E.D. Cal. 1991); City of Philadelphia v. Stepan Chem. Co., 748 F. Supp. 283, 296, 21 ELR 20760, 20767 (E.D. Pa. 1990); United States v. Mexico Feed & Seed Co., 729 F. Supp. 1250, 1254, 20 ELR 20775, 20776 (E.D. Mo. 1990); Dublin Scarboro Improvement Ass'n v. Harford County, 678 F. Supp. 129, 132 (D. Md. 1988); United States v. Northernaire Plating Co., 685 F. Supp. 1410, 1413, 18 ELR 21338, 21339 (W.D. Mich. 1988), aff'd sub nom. United States v. R.W. Meyer, Inc., 889 F.2d 1497, 20 ELR 20319 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990); Wehner v. Syntex Corp., 618 F. Supp. 37, 37 (E.D. Mo. 1984); Wehner v. Syntex Corp., 682 F. Supp. 39, 40 (N.D. Cal. 1987); United States v. Dickerson, 640 F. Supp. 448, 453, 16 ELR 20970, 20972 (D. Md. 1986); United States v. Ward, 618 F. Supp. 884, 913, 16 ELR 20127, 20140 (E.D.N.C. 1985); United States v. Mottolo, 605 F. Supp. 898, 912-13 , 15 ELR 20444, 20450 (D.N.H. 1985); United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa. 1984); United States v. Tyson, No. 84-2663, slip op. at 1 (E.D. Pa. Oct. 19, 1984); motion to certify denied, 22 Env't Rep. Cas. (BNA) 1471, 1472 (E.D. Pa. 1984); United States v. Union Gas Co., 22 Env't Rep. Cas. (BNA) 1603, 1603 (E.D. Pa. 1984); United States v. Georgeoff, 22 Env't Rep. Cas. (BNA) 1601, 1603 (N.D. Ohio 1984); United States v. Argent Corp., 21 Env't Rep. Cas. (BNA) 1353, 1354 (D.N.M. 1983); United States v. Reilly Tar & Chem. Corp., 13 ELR 20897 (D. Minn. June 23, 1983); United States v. Northeastern Pharmaceutical & Chem. Co., 19 Env't Rep. Cas. (BNA) 2186, 2189 (D. Mo. 1983); see United States v. Conservation Chem. Co., 619 F. Supp. 162, 205, 16 ELR 20193, 20210 (W.D. Mo. 1985) (stating that there is no right to trial by jury in a CERCLA cost-recovery action). But see United States v. Shaner, 23 ELR 20236 (E.D. Pa. June 16, 1992) (holding that there is a right to trial by jury in a CERCLA § 113(f) contribution action); In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1001, 19 ELR 21198, 21199 (D. Mass. 1989) (holding that there is a right to trial by jury in a CERCLA § 107(a)(4)(C) action for damages to natural resources); but cf. also Farmland Indus. v. Morrison-Quirk Grain Corp., 987 F.2d 1335, 1340, 23 ELR 20869, 20871 (8th Cir. 1993) (jury trial of CERCLA § 113(f) claims); Chemical Waste Management, Inc. v. Armstrong World Indus., Inc., 669 F. Supp. 1285, 1292 n. 11, 18 ELR 20191, 20194 (E.D. Pa. 1987) (noting that "a jury must decide the proper apportionment of damages" between two private parties in a CERCLA action).

3. In Northeastern Pharmaceutical, 810 F.2d at 749, 17 ELR at 20614, the U.S. Court of Appeals for the Eighth Circuit addressed the issue in one paragraph, concluding that there is no right to trial by jury in a cost-recovery action.

4. 42 U.S.C. §§ 9607(a)(4)(A)-(B), 9613(f)(1), ELR STAT. CERCLA §§ 107(a)(4)(A)-(B), 113(f)(1).

5. U.S. CONST. amend. VII.

6. "Superfund" is the common name for the hazardous substances cleanup program under CERCLA.

7. It is noteworthy that CERCLA plaintiffs, especially the United States, routinely move to strike jury demands. See, e.g., United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985); United States v. Northeastern Pharmaceutical & Chem. Co., 19 Env't Rep. Cas. (BNA) 2186 (D. Mo. 1983); United States v. Reilly Tar & Chem. Corp., 13 ELR 20897 (D. Minn. June 23, 1983). CERCLA cases may be factually complex, but there is no "complexity exception" to the Seventh Amendment and the right to jury trial obtains "in even the most complex cases at law." In re U.S. Fin. Sec. Litig., 609 F.2d 411, 432 (9th Cir. 1979).

8. 481 U.S. 412, 17 ELR 20667 (1987).

9. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

10. The U.S. Court of Appeals for the Third Circuit may address the issue in Hatco Corp. v. W.R. Grace & Co., 849 F. Supp. 931 (D.N.J. 1994) appeal docketed, No. 94-5276 (3d Cir. Aug. 29, 1994); see also Hatco Corp. v. W.R. Grace & Co., 859 F. Supp. 769 (D.N.J. 1994). In the Hatco appeal, the defendant-appellant raises the issue of whether a right to trial by jury exists in a CERCLA contribution claim under § 113(f). Oral argument in the appeal was held on January 25, 1995.

11. U.S. CONST. amend. VII.

12. Granfinanciera, S.A. v. Nordberg, 494 U.S. 33, 41 (1989) (quoting Parsons v. Bedford, 3 Pet. 433, 447 (1830)).

13. Parsons, 3 Pet. at 447.

14. Granfinanciera, 494 U.S. at 41.

15. See Curtis v. Loether, 415 U.S. 189, 194 (1974) ("The Seventh Amendment does apply to actions enforcing statutory rights and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law."). Granfinanciera, 494 U.S. at 42.

16. Tull v. United States, 481 U.S. 412, 417, 17 ELR 20667, 20669 (1987).

17. Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970).

18. Tull, 481 U.S. at 421, 17 ELR at 20670.

19. Wooddell v. International Bhd. of Elec. Workers Local 71,502 U.S. 93, 97 (1991).

20. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501 (1959) (quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)). Commentators have noted that "there is a strong federal policy favoring trial by jury of issues of fact. This policy in itself may provide the answer in cases in which the historical test gives no clear guidance." 9 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2302, at 17 (1971).

21. See, e.g., Ross, 396 U.S. at 540-42 (citing examples of historically equitable actions now heard at law because of changes in the federal rules of civil procedure).

22. Id. at 538.

23. The Supreme Court stated this principle as follows:

"In the Federal courts this [jury] right cannot be dispensed with, except by the assent of the parties entitled to it, nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action or during its pendency." Scott v. Neely, 140 U.S. 106, 109 (1891) (footnotes omitted). This longstanding principle of equity dictates that only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules [of Civil Procedure] we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.

Beacon Theatres, 359 U.S. at 510.

24. Dairy Queen v. Wood, 369 U.S. 469 (1962). From 1789 until 1938, the judicial code expressly forbade courts of equity from entertaining any suit for which there was an adequate remedy at law. This provision served "to guard the right of trial by jury preserved by the Seventh Amendment and to that end it should be liberally construed." Ross, 396 U.S. at 539 (quoting Schoenthal v. Irving Trust Co., 287 U.S. 92, 94 (1932) (footnote omitted)).

25. 9 WRIGHT & MILLER, supra note 20, § 2302, at 21.

26. 42 U.S.C. § 9607(a)(4)(A)-(C), ELR STAT. CERCLA § 107(a)(4)(A)-(C). As noted, fewer cases address the Seventh Amendment issue in the context of a contribution proceeding under 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA § 113(f)(1). See infra notes 85-89 and accompanying text. Subsection (D) of § 107(a)(4) provides for recovery of "[t]he cost of any health assessment or health effects study carried out under section 104(i)." 42 U.S.C. § 9607(a)(4)(D), ELR STAT. CERCLA § 107(a)(4)(D). No published decisions address the issue of the right to trial by jury under this provision. The provision itself is seldom invoked. If and when it is invoked, the general analysis set forth in this Article would apply.

27. See Ross, 396 U.S. at 538 ("The Seventh Amendment question depends on the nature of the issue to be tried.").

28. 42 U.S.C. § 9607(a)(4)(A), ELR STAT. CERCLA § 107(a)(4)(A).

29. See supra note 2, and the district court cases cited in which the United States is the plaintiff.

30. United States v. Northeastern Pharmaceutical & Chem. Co., 19 Env't Rep. Cas. (BNA) 2186 (D. Mo. 1983).

31. United States v. Reilly Tar & Chem. Corp., 13 ELR 20897 (D. Minn. June 23, 1983).

32. Northeastern Pharmaceutical, 19 Env't Rep. Cas. (BNA) at 2187; Reilly Tar, 13 ELR at 20898.

33. Northeastern Pharmaceutical, 19 Env't Rep. Cas. (BNA) at 2188 ("Restitution is equitable relief with the ultimate goal to return the plaintiff to his status quo."); Reilly Tar, 13 ELR at 20898.

34. Reilly Tar, 13 ELR at 20898; see Northeastern Pharmaceutical, 19 Env't Rep. Cas. (BNA) at 2189.

35. See, e.g., United States v. Tyson, 22 Env't Rep. Cas. (BNA) 1471, 1472 (E.D. Pa. 1984) (two paragraphs); United States v. Union Gas Co., 22 Env't Rep. Cas. (BNA) 1603 (E.D. Pa. 1984) (one paragraph).

36. See, e.g., United States v. Mottolo, 605 F. Supp. 898, 913 (D.N.H. 1985) and United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa. 1984). Both Mottolo and Wade adopt the analysis of Northeastern Pharmaceutical and Reilly Tar.

37. See, e.g., Northeastern Pharmaceutical, 19 Env't Rep. Cas. (BNA) at 2188 (citing RESTATEMENT provision); Reilly Tar, 13 ELR at 20898 (citing RESTATEMENT provision); United States v. Georgeoff, 22 Env't Rep. Cas. (BNA) 1601, 1602 (N.D. Ohio 1984) (citing RESTATEMENT provision). Section 115 states:

A person who has performed the duty of another by supplying things or services, although acting without the other's knowledge or consent, is entitled to restitution from the other if

(a) he acted unofficiously and with intent to charge therefor, and

(b) the things or services supplied were immediately necessary to satisfy the requirements of public decency, health, or safety.

RESTATEMENT OF RESTITUTION § 115 (1937).

38. RESTATEMENT OF RESTITUTION, supra note 37, § 115 (emphasis added).

39. Id. § 1 ("[A] person who has been unjustly enriched at the expense of another is required to make restitution to the other.").

40. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 47, at 328 (5th ed. 1984) ("Quite apart from any question of vicarious liability or joinder of defendants, the common law developed a separate principle, that a defendant might be liable for the entire loss sustained by the plaintiff, even though the defendant's act concurred or combined with that of another wrongdoer to produce the result.").

41. United Status v. Alcan Aluminum Corp., 964 F.2d 252, 268, 22 ELR 21124, 21126 (3d Cir. 1992); In re Bell Petroleum Servs., Inc., 3 F.3d 889, 895, 23 ELR 21474, 21475 (5th Cir. 1993).

42. See JOHN N. POMEROY'S EQUITY JURISPRUDENCE § 385, at 51 (5th ed. 1941) ("He who seeks equity must do equity."). Where the government is entitled to all response costs from a single PRP, this may constitute restitution. Even in this situation, however, the relief sought by the government is not equitable. Money is the relief at issue and that is the classic form of legal relief. See infra notes 61-69 and accompanying text.

43. As a threshold matter, it is not clear that restitution is the correct historical analogy to a CERCLA cost-recovery action. More likely, no proper analogy exists because CERCLA-like actions were unheard of during the 18th century. As noted, the U.S. Supreme Court describes the process of identifying the proper analogy as an "abstruse historical inquiry." Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970). Not surprisingly, the decisions provide no guidance on how to discern the valid analogy. In any event, the nature of the remedy is the crux of the Seventh Amendment analysis.

44. The following authorities explain that restitution was available in courts of law during the late 18th century: RESTATEMENT OF RESTITUTION, supra note 37, pt. I at 4-10; PROSSER, supra note 40, § 94, at 672; DAN B. DOBBS, DOBBS LAW OF REMEDIES §§ 2.6(3), 4.2 (2d ed. 1993); see In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1003, 19 ELR 21198, 21202 (D. Mass. Feb. 27, 1989) ("[M]uch of the relief thought of as restituionary was available in the English common law courts in an action of assumpsit.").

45. RESTATEMENT OF RESTITUTION supra note 37, § 4.

The interrelation of tort and contract was further complicated when the common law courts, late in the seventeenth century, began to take over into the law some of the principles and remedies of equity. The judges, becoming conscious of their shortcomings and jealous of the expanding powers of the chancery courts, sought to broaden their own jurisdiction into equity fields, and found a means ready to their hand in the action of assumpsit. . . . The common law courts recognized that they were invading the province of equity, and the relief which they granted by way of restitution has continued to be subject to equitable rules.

PROSSER supra note 40, § 94, at 672.

46. RESTATEMENT OF RESTITUTION, supra note 37, § 5.

47. See, e.g., United States v. Mottolo, 605 F. Supp. 898, 913. 15 ELR 20444, 20450 (D.N.H. 1985) ("The Court finds these decisions persuasive and concludes that no Seventh Amendment right to jury trial attaches [when] plaintiffs seek merely equitable relief, the return of monies expended for the cleanup of hazardous waste. Plaintiffs seek restitution, that is, to restore the status quo by receiving their rightful reimbursement. This restitution remedy is under the jurisdiction of a court of equity, and there is no jury trial right [when] purely equitable relief is sought.").

48. In re Acushnet River, 712 F. Supp. at 1003, 19 ELR at 21202.

49. DOBBS, supra note 44, § 4.1(3), at 565.

50. Mottolo, 605 F. Supp. at 913, 15 ELR at 20450.

51. DOBBS, supra note 44, § 4.2(3), at 583.

52. In re Acushnet River, 712 F. Supp. at 1002, 19 ELR at 21202.

53. See Tull v. United States, 481 U.S. 412, 422-27, 17 ELR 20667, 20670-71 (1987).

54. United States v. Mottolo, 605 F. Supp. 898, 913, 15 ELR 20444, 20450 (D.N.H. 1985).

55. United States v. Alcan Aluminum Corp., 990 F.2d 711, 23 ELR 20706 (2d Cir. 1993); United States v. Alcan Aluminum Corp., 964 F.2d 252, 22 ELR 21124 (3d Cir. 1992); In re Bell Petroleum Servs., Inc., 3 F.3d 889, 23 ELR 21474 (5th Cir. 1993).

56. In re Bell Petroleum, 3 F.3d at 903.

57. POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 385, at 51.

58. Id. at 52.

59. CERCLA litigation arising out of World War II manufacturing facilities is illustrative. For example, in United States v. Witco Corp., the United States is seeking all its unreimbursed response costs associated with Superfund site, despite the fact that it has been adjudicated liable under CERCLA § 107(a)(2) as an owner of facilities at the site. United States v. Witco Corp., No. 94-0662, slip op. at 6 (E.D. Pa. July 12, 1994); see also Elf Atochem, Inc. v. United States, No. 92-7458, slip op. at 13 (E.D. Pa. Sept. 26, 1994). In Witco, the court granted the U.S. motion to strike the defense's jury demand. No. 94-0662, slip op. at 1.

60. BLACK'S LAW DICTIONARY 540 (6th ed. 1990).

61. POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 397, at 90.

62. Id. at 91 (emphasis added).

63. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, at 509 (1959); POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 176, at 239.

64. Curtis v. Loether, 415 U.S. 189, 196 (1974); see Dairy Queen v. Wood, 369 U.S. 469, 476 (1962) ("[I]nsofar as the complainant requests a money judgment it presents a claim which is unquestionably legal."); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 47-49 (1989) (citations omitted).

65. Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570 (1990).

66. See POMEROY'S EQUITY JURISPRUDENCE, supra note 42, §§ 112 & 186; RESTATEMENT OF RESTITUTION, supra note 37, § 4(f).

67. Chauffeurs, 494 U.S. at 570.

68. Id.

69. See 42 U.S.C. § 9613(g)(2), ELR STAT. CERCLA § 113(g)(2); 28 U.S.C. § 2201.

70. POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 173.

71. 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA § 107(a)(4)(B).

72. See United Technologies Corp. v. Browning-Ferris Indus., 33 F.3d 96, 100, 24 ELR 21356, 21358 (1st Cir. 1994) (holding that a cause of action under § 107(a)(4)(B) is available only to innocent parties and that the only cause of action available to liable parties is contribution under § 113(f)(1)); United States v. Colorado Eastern R.R., Nos. 93-1422, -1041, 1994 WL 647329, *2 (10th Cir. Nov. 17, 1994) (same).

73. United Technologies, 33 F.3d at 102, 24 ELR at 21359 ("[T]he drafters intended contribution, as that term is used in section 9613, to cover parties' disproportionate payments of first-instance costs as well as parties' disproportionate payments of reimbursed costs.").

74. In Key Tronic Corp. v. United States, the U.S. Supreme Court noted that CERCLA "now expressly authorizes a cause of action for contribution in Section 113, and impliedly authorizes a similar and somewhat overlapping remedy in Section 107." 114 S. Ct. 1960, 1966, 24 ELR 20955, 20956 (1994). Thus, even if a § 107 claim is available to a PRP, it is a claim for contribution.

75. See, e.g., Companies for Fair Allocation v. Axil Corp., 853 F. Supp. 575, 580 (D. Conn. 1994) ("[P]laintiffs' status as PRPs does not preclude them from pursuing a § 107 claim"); Oshtemo v. American Cyanamid Co., No. 1:92:CV:843, 1993 WL 561814, at *2 (W.D. Mich. Aug. 19, 1993) ("[P]laintiffs' status as PRPs does not preclude them from pursuing a § 107 claim"); United States v. Kramer, 757 F. Supp. 397, 417, 21 ELR 20879, 20887 (D.N.J. 1991) (holding that government may maintain a § 107(a) action when it is a PRP and implying that private parties may do so).

76. Kramer, 757 F. Supp. at 416, 21 ELR at 20887.

77. See Steven Ferrey, The New Wave: Superfund Allocation Strategies and Outcomes, 1994 Env't Rep. (BNA) 790 (Aug. 26, 1994) (arguing that PRPs should settle with the government, then employ § 107(a) in conjunction with protection from contribution actions under § 113(f)(2) to obtain a windfall from nonsettling PRPs). Kramer did not address whether § 107(a) would permit a settling PRP to obtain and keep the windfall and assumes that the settling PRP would be required to disgorge any windfall in a subsequent contribution proceeding. 757 F. Supp. 397, 21 ELR 20879.

78. 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C).

79. In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1000, 19 ELR 21198, 21199 (D. Mass. 1989).

80. Id.

81. In re Acushnet River, 712 F. Supp. at 994, 19 ELR at 21198 (holding that there is a right to trial by jury in a § 107(a)(4)(C) action for damages to natural resources); See Evan Slavitt, Jury Trial Rights Under CERCLA: The Effects of Tull v. United States, 18 ELR 10127, 10131 (Apr. 1988) (arguing that there is a right to trial by jury under § 107(a)(4)(C)); cf. United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa. 1984) (granting Pennsylvania's motion to strike a jury demand made on a § 107(a)(4)(C) claim, but noting that the state was seeking reimbursement only "to the extent that it has spent funds in assessing any injury to natural resources or rehabilitating or restoring injured resources").

82. Section 113(f)(1) provides:

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a), during or following any civil action under section 9606 or under section 9607(a). Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 or section 9607.

83. See Richmond, F. & P. R.R. No. 90-00336, 1991 WL 321033, at *4 (E.D. Va. Jan. 22, 1991); Mid Valley Bank v. North Valley Bank, 764 F. Supp 1377, 1390, 22 ELR 20614, 20620 (E.D. Cal. 1991); Wehner v. SyntexCorp., 618 F. Supp. 37 (E.D. Mo. 1984).

84. Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, tit. I, sec. 113(f)(1), § 113(f)(1), 100 Stat. 1613, 1647 (1986) (codified as amended at 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA § 113(f)(1)).

85. See supra note 2 and cases cited therein that were decided before October 17, 1986, the date on which President Reagan signed SARA, supra note 82.

86. Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970).

87. Hatco Corp. v. W.R. Grace & Co., 859 F. Supp. 769, 773 (D.N.J. 1994); American Cyanamid Co. v. King Indus., 814 F. Supp. 209, 214 (D.R.I. 1993); United States v. Shaner, 23 ELR 20236 (E.D. Pa. June 16, 1992).

88. American Cyanamid, 814 F. Supp. at 214.

89. Hatco, 859 F. Supp. at 773.

90. Shaner, 23 ELR at 20236 (quoting Globig v. Greene & Gust Co., 184 F. Supp. 530, 534 (E.D. Wis. 1960)).

91. See, e.g., Globig, 184 F. Supp. at 534 (Federal Tort Claims Act contribution claim); Palmer v. United States, 652 F.2d 893, 896 (9th Cir. 1981) (Federal Tort Claims Act contribution claim). At least one federal court, however, has held that contribution is an equitable claim. See Dawson v. Contractors Transp. Corp., 467 F.2d 727, 731 (D.C. Cir. 1972) (Fahy, J., dissenting).

92. PROSSER, supra note 40, § 50, at 336; see RESTATEMENT (SECOND) OF TORTS § 886A cmt. a (1977).

93. PROSSER, supra note 40, § 50, at 337.

94. Id. at 338.

95. See POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 1418, at 1071.

96. Id. at 1072.

97. Id., §§ 174, 1416. Pomeroy notes that claims for "contribution" fell within the "concurrent" jurisdiction of equity with law. Whether "contribution" actions were within the exclusive or concurrent jurisdiction of equity courts, inadequate relief at law was a jurisdictional prerequisite. Id., §§ 173, 176, 178. As demonstrated herein, adequate relief at law is available in a CERCLA contribution claim.

98. Tull v. United States, 481 U.S. 412, 420, 17 ELR 20667, 20669 (1987) (quoting Pernell v. Southall Realty, 416 U.S. 363, 375 (1974)). Similarly, federal policy bolsters the right to a jury trial in the absence of a historical analog. "This policy in itself may provide the answer in cases in which the historical test gives no clear guidance." 9 WRIGHT & MILLER, supra note 20, § 2302, at 17.

99. United States v. Shaner, 23 ELR 20236 (E.D. Pa. June 16, 1992).

100. 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA § 113(f)(1).

101. See POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 1418.

102. [I]f the legal remedy by action and pecuniary judgment for debt or damages would be complete, sufficient, and, certain — that is, would do full justice to the litigant parties — in the particular case, the concurrent jurisdiction of equity does not extend to such case. For example, whenever an action at law will furnish an adequate remedy, equity does not assume jurisdiction because an accounting is demanded or needed; nor because the case involves or arises from fraud; nor because a contribution is sought from persons jointly indebted; nor even to recover money held in trust, where an action for money had and received will lie.

Id., § 178, at 274.

103. Equity courts also had jurisdiction over certain contribution claims involving an insolvent party when a decree was needed to adjust liability among the solvent parties to allocate the insolvent party's liability. See POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 1418. This might be analogous to the orphan-share problem in CERCLA actions. The plain language of the CERCLA contribution provision demonstrates, however, that even where orphan shares are at issue, courts of law possess the statutory power to address them.

104. POMEROY'S EQUITY JURISPRUDENCE, supra note 42, § 397.

105. FED. R. CIV. P. 38(b) requires that a party make the demand for a jury trial within 10 days after the service of the last pleading directed to the issue for which a jury trial is sought.

106. A third-party contribution claim can be asserted "during or following any civil action under section 9606 or under section 9607(a)." 42 U.S.C. § 9613(f), ELR STAT. CERCLA § 113(f). The defendant can file a third-party contribution claim without leave of court when the "third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer." FED. R. CIV. P. 14(a).

107. Severance of the cost-recovery action and the third-party contribution action is permissible only insofar as separate trials "preserv[e] inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States." FED. R. CIV. P. 42. Severance of the claims could not deprive the defendant/third-party plaintiff of jury determination of the facts common to the two claims. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959).

108. Lehman v. Nakshian, 453 U.S. 156, 160 (1981).

109. See United States v. Kubrick, 444 U.S. 111, 117-18 (1979).

110. Lehman, 453 U.S. at 168.

111. 42 U.S.C. § 9620(a)(1), ELR STAT. CERCLA § 120(a)(1) (emphasis added).

112. Pennsylvania v. Union Gas Co., 491 U.S. 1, 10, 19 ELR 20974, 20976 (1989).