The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_376/93_376.zd

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SUPREME COURT OF THE UNITED STATES
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No. 93-376
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KEY TRONIC CORPORATION, PETITIONER v.
UNITED STATES et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[June 6, 1994]

  Justice Scalia, with whom Justice Blackmun and
Justice Thomas join, dissenting in part.
  I disagree with the Court's conclusion that a private
litigant cannot recover the attorney's fees associated
with bringing a cost recovery action under 107 of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA), 42 U. S. C. 9607.
Under Sections 107(a)(4)(A) and (B), a party who has
incurred costs to clean up a hazardous waste site can
recover those costs from any other party liable under
CERCLA.  Those provisions state that:

-Covered persons . . . shall be liable for -
      -(A) all costs of removal or remedial action in-
curred by the United States Government or a State
or an Indian tribe not inconsistent with the national
contingency plan;
      -(B) any other necessary costs of response incurred
by any other person consistent with the national
contingency plan.- (Emphases added).

Title 42 U. S. C. 9601(25) explains that:
      -The terms `respond' or `response' means [sic] re-
move, removal, remedy, and remedial action;, all
such terms (including the terms `removal' and
`remedial action') include enforcement activities
related thereto.-  (Emphases added).

Under the plain language of these provisions, a private
litigant is entitled to the costs associated with bringing
a 107(a)(4)(B) cost recovery action, which is the only
-enforcement activit[y]- he can conceivably conduct.
Obviously, attorney's fees will constitute the major
portion of those enforcement costs.
  The Court seeks to characterize the right of recovery
created by 107 as an -implied- right of action, see ante,
at 6, 7, 9-perhaps in order to support the view that the
authorization of attorney's fees included within that
right of action is not explicit (a point I shall discuss
more fully below).  That characterization is mistaken.
Section 107(a)(4)(B) states, as clearly as can be, that
-[c]overed persons . . . shall be liable for . . . necessary
costs of response incurred by any other person.-  Surely
to say that A shall be liable to B is the express creation
of a right of action.  Moreover, other language in 107
of CERCLA refers to -amounts recoverable in an action
under this section,- 42 U. S. C. 9607(a)(4)(D), and
language in 113 discusses the -civil action . . . under
section 107(a),- 42 U. S. C. 9613(f)(1).  The Court's
assumption seems to be that only a statute that uses
the very term -cause of action- can create an -express-
cause of action, and that all other causes of action are
-implied.-  That is not ordinary usage.  An implied
cause of action is something quite different from what
we have here.  See, e.g., Central Bank of Denver, N.A.
v. First Interstate Bank of Denver, N.A., 511 U. S. ___
(1994) (slip op., at 6) (discussing the genesis of the
implied private causes of action under 10(b) and 14(a)
of the Securities and Exchange Act of 1934).
  The first of the three reasons the Court gives for
refusing to read 9607(a)(4)(B) and 9601(25) to cover
attorney's fees displays the same confusion between a
requirement of explicitness and a requirement of a
password.  The Court states that -attorney's fees
generally are not . . . recoverable . . . `absent explicit
congressional authorization,'- ante, at 5 (quoting Runyon
v. McCrary, 427 U. S. 160, 185 (1976), and notes further
that none of the statutory provisions at issue -expressly
mentions the recovery of attorney's fees,- ante, at 5.
But to meet the demands of Runyon, Congress need only
be explicit-it need not incant the magic phrase
-attorney's fees.-  Where, as here, Congress has explic-
itly authorized recovery of costs of -enforcement activi-
ties,- and where, as here, the costs of -enforcement
activities- naturally (and indeed primarily) include
attorney's fees, that textual authorization satisfies
Runyon.
  The Court also draws a negative inference from the
fact that Congress expressly provided for attorney's fee
awards in other portions of the Superfund Amendments
and Reauthorization Act of 1986 (SARA), 100 Stat. 1613,
the Act that added the -enforcement activities- language
of 42 U. S. C. 9601(25).  From this, the Court con-
cludes that Congress's failure to mention attorney's fees
in 9607 or 9613 -strongly suggest[s] a deliberate
decision not to authorize such awards.-  Ante, at 9.
That argument would be persuasive if it were ambiguous
whether, for a private party, the cost of -enforcement
activities- includes attorney's fees.  But since it is not,
the fact that Congress provided for the recovery of
attorney's fees eo nomine in two other sections is of
little relevance.  Given the explicitness of the award of
costs of -enforcement activities,- the -`attorney's fees'
was used elsewhere- argument is simply a watered-down
version of the -magic words- argument rejected above.
  Finally, the Court comes to grips with the core issue
in this case, declaring that -it would stretch the plain
terms of the phrase `enforcement activities' too far to
construe it as encompassing the kind of private cost
recovery action at issue in this case.-  Ibid.  I do not
agree.  While the term -enforcement- often-perhaps
even usually-is used in connection with government
prosecution, that is assuredly not the only form of legal
action it refers to.  It clearly includes the assertion of a
valid private claim against another private litigant.
Lawyers regularly speak of -enforceable obligations- and
-enforceable contracts,- and of -enforcing- a private
judgment.  We have called the private rights of action
created by the Clayton Act -vehicle[s] for private
enforcement- of the law,  Cargill, Inc. v. Monfort of
Colorado, Inc., 479 U. S. 104, 109 (1986), and the
-private enforcement- characterization seems especially
apt here, where the plaintiff's suit must be -consistent
with the national contingency plan- promulgated by the
EPA.  42 U. S. C. 9607(a)(4)(B).  As I read the Court's
opinion, it interprets -enforcement activities- to cover, at
most, the government's attorney's fees in a cost recovery
action.  See, ante, at 9.  That gives the specification of
9601(25) that certain terms include -enforcement
activities- no application to private parties, and no
application to any terms except -removal- and -remedial
action--which is very curious, since the parenthetical in
9601(25) suggests that those two terms, far from being
central to the provision (much less an embodiment of its
total application), were in danger of being overlooked.
  I would read -enforcement activities- in 9601(25) to
cover the attorney's fees incurred by both the govern-
ment and private plaintiffs successfully seeking cost
recovery under 9607 of CERCLA.