NCR Corporation v. William Griesbach ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 31, 2015
Decided May 1, 2015
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 15-1697
IN RE: Petition for Writ of Mandamus.
NCR CORPORATION,
Petitioner. No. 08-C-16
William C. Griesbach,
Chief Judge.
ORDER
In a pair of cases decided last year, this Court made several determinations
regarding liability for cleanup in the Fox River Valley Site, which is divided into five
operable units. See NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682 (7th Cir. 2014)
(Whiting); United States v. P.H. Glatfelter Co., 768 F.3d 662 (7th Cir. 2014) (Glatfelter). In
Whiting, a contribution action under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., we rejected P.H.
Glatfelter Company’s arguments that petitioner NCR Corporation was liable for costs in
the Site’s Operable Unit 1 (OU1) on the basis of arranger liability or discharges made in
Portage, Wisconsin. Glatfelter had also argued in the district court that NCR could be
No. 15-1697 Page 2
liable on a “single-site” theory, i.e., that if NCR was responsible for costs in any operable
unit, it was responsible for costs in all operable units. The district court rejected this
claim, and Glatfelter did not raise it on appeal in Whiting. We remanded Whiting for
proceedings consistent with the opinion. In Glatfelter, a CERCLA enforcement action,
we affirmed the imposition of liability on Glatfelter, finding that once the government
shows that an entity caused “some response costs within the Site, [it] may be held liable
for all response costs within the Site.” Glatfelter, 768 F.3d at 675.
On remand, Glatfelter moved the district court to reconsider its decision that
NCR was not liable for OU1 costs on the basis of the single-site theory, pointing to our
decision in Glatfelter in support of its argument. The district court decided that it was
appropriate to reconsider its earlier decision with respect to NCR’s liability; it
ultimately applied the single-site theory and held, contrary to its previous decision, that
NCR was liable for OU1 costs. Recognizing that procedural rules typically would have
barred Glatfelter from raising this issue on remand, the court concluded that
“preventing Glatfelter from making that argument now could work a manifest injustice
because it would mean the parties are not playing on a level playing field.” NCR has
now petitioned this court for a writ of mandamus vacating the district court’s order,
arguing that the ruling went beyond the scope of our remand in Whiting. See United
States v. Whitlow, 740 F.3d 433, 438 (7th Cir. 2014) (issues that could have been, but were
not, raised on appeal have been waived and thus cannot be within the scope of a
remand).
We have consistently noted that “mandamus is an extraordinary remedy we do
not grant lightly.” In re Hatcher, 150 F.3d 631, 637 (7th Cir. 1998). A petition for a writ of
mandamus has merit only when the district court’s ruling “so far exceed[s] the proper
bounds of judicial discretion as to be legitimately considered usurpative in character.”
In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295 (7th Cir. 1995). Generally, the
petitioner must show both irreparable harm and a clear and indisputable right to the
relief sought, see In re Sandahl, 980 F.2d 1118, 1119 (7th Cir. 1992), though we have
sometime relaxed the irreparable harm requirement in petitions seeking to enforce this
court’s mandates. See, e.g., Lindland v. U.S. Wrestling Ass'n, Inc., 228 F.3d 782, 783 (7th
Cir. 2000) (per curiam).
NCR has met neither element of this exacting test. The only injury to which it
points is the cost of further litigation, but these expenses do not qualify as irreparable
harm. See In re Lewis, 212 F.3d 980, 983 (7th Cir. 2000). More importantly, NCR has not
demonstrated a clear and indisputable right to the vacatur of the district court’s order. It
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is possible that an intervening change in the law may justify an exception to the law of
the case doctrine, see, e.g., Kathrein v. City of Evanston, Ill., 752 F.3d 680, 685–86 (7th Cir.
2014), potentially allowing unappealed issues to be addressed following a remand.
Furthermore, courts may decide CERCLA contribution actions using “equitable
factors,” see 42 U.S.C. § 9613(f)(1), and the district court relied on such factors to justify
its conclusion here. While these considerations do not show that the district court was
correct to reopen the issue of NCR’s liability based on the single-site theory, they do
demonstrate that NCR’s right to have the order vacated is at least somewhat disputable
and that the district court’s actions were not usurpative.
Because NCR has not demonstrated that it has suffered irreparable injury from
the district court’s order, or that it has a clear and indisputable right to the relief sought,
its petition for a writ of mandamus is DENIED. Nothing in this order should be
construed as a determination of the propriety of the district court’s actions in reopening
the issue of NCR’s liability for OU1. NCR may raise any and all issues related to the
court’s rulings should it eventually appeal from the district court’s final decision.