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Reardon v. U.S. Essay

Lien on real property created by CERCLA when Environmental Protection Agency (EPA) determines that property owners may be liable for cleanup costs amounts to deprivation of a significant property interest within meaning of the due process clause. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, § 107(l ), as amended, 42 U.S.C.A. § 9607(l ); U.S.C.A. Const.Amend. 5.

Absence of notice and hearing may be justified by exigent circumstances. U.S.C.A. Const.Amend. 5.

92k251.5 k. Procedural Due Process in General. Most Cited Cases

Constitution allows the process due to be tailored to fit realities of the situation. U.S.C.A. Const.Amend. 5. *1510 Lynn Wright, with whom Robin F. Price and Edwards and Angell, New York City, were on supplemental brief, for plaintiffs, appellants. George W. Van Cleve, Deputy Asst. Atty. Gen., with whom Barry Hartman, Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., George B. Henderson, II, Asst. U.S. Atty., Boston, Mass., Stephen L. Samuels, Steve C. Gold, Jacques B. Gelin, Attys., Dept. of Justice, Charles Openschowski, Office of Gen. Counsel, E.P.A. and Luis Rodriguez, Asst. Regional Counsel, E.P.A., Washington, D.C., were on supplemental brief, for defendants, appellees.


TORRUELLA, Circuit Judge.

After removing hazardous substances from property belonging to the Reardons, EPA filed a notice of lien on the property for the amount spent. See 42 U.S.C. § 9607(l ). The Reardons sued to have the notice of lien removed, arguing that they were not liable for the cleanup costs, that the lien was overextensive in that it covered parcels not involved in the clean-up, and that the filing of the lien notice without a hearing deprived them of property without due process. The district court, in Reardon v. United States, 731 F.Supp. 558 (D.Mass.1990), decided that it did not have jurisdiction to hear the Reardons’ two statutory claims. It ruled that although jurisdiction existed to hear the constitutional claim, the filing of a lien did not amount to a taking of a significant property interest protected by the due process clause.

It therefore denied the Reardons’ motion for a preliminary injunction, and dismissed their complaint. The Reardons appealed and a panel of this court ruled in their favor on statutory grounds. Reardon v. United States, 922 F.2d 28 (1st Cir.1990) (withdrawn). We now consider the appeal en banc. After closely considering applicable law, including most notably the recent case of Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), we conclude that the district court correctly decided that it did not have jurisdiction to consider the Reardons’ statutory claims, but we find that the CERCLA lien provisions do violate the fifth amendment due process clause.


A. Facts. In 1979, Paul and John Reardon purchased a 16-acre parcel in Norwood, Massachusetts, adjacent to an electric equipment manufacturing plant site *1511 known as the “Grant Gear” site, and named it “Kerry Place.” In 1983, the Massachusetts Department of Environmental Quality Engineering, responding to a report of a nearby resident, tested soil samples from both properties and discovered extremely high levels of polychlorinated biphenyls (“PCBs”) on the Grant Gear site and on Kerry Place where it bordered Grant Gear. EPA then investigated the site. Finding the same high levels of PCBs, it authorized an immediate clean-up of the contaminated areas. Between June 25 and August 1, 1983, EPA removed 518 tons of contaminated soil from the two properties. It then notified the Reardons that it had removed all soil with concentrations of PCBs known to be above the safe limit, but informed them that additional areas of contamination might exist, in which case EPA might undertake additional clean-up work. In 1984, the Reardons subdivided Kerry Place into a number of parcels; they sold five of those parcels and retained ownership of the others.

In October 1985, EPA notified the Reardons that, as current owners of Kerry Place, they might be liable under §§ 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9606 & 9607, along with ten other present and prior owners of the properties, for the clean-up costs. In August 1987, EPA again investigated the properties to assess the feasibility of a long-term remedy for any remaining contamination. New testing showed that soil in several areas on Kerry Place was still contaminated with PCBs. In April 1988, EPA informed the Reardons of these results. The Reardons told EPA that they intended to clean up their property themselves. EPA advised the Reardons to coordinate any offsite disposal plans with EPA and to obtain EPA’s approval of a treatment or disposal facility.

In January 1989, the Reardons informed EPA that they had completed their own clean-up of Kerry Place, without having attempted coordination with or sought the approval of EPA. On March 23, 1989, EPA filed a notice of lien with the Norfolk County Registry of Deeds pursuant to § 107(l ) of CERCLA, 42 U.S.C. § 9607(l ), on all of the Kerry Place parcels still owned by the Reardons. The lien was for an unspecified amount, as it secured payment of “all costs and damages covered by” 42 U.S.C. § 9607(l ) for which the Reardons were liable under § 107(a) of CERCLA, 42 U.S.C. § 9607(a). Five days later, EPA notified the Reardons that it had filed the notice of lien. On July 12, 1989, EPA informed the Reardons that they could settle EPA’s claims against them for $336,709, but noted that this amount did not limit the Reardons’ potential liability. On September 29, 1989, EPA selected a long-term remedy for the Kerry Place and Grant Gear sites estimated to cost $16,100,000. B. Procedural History.

The Reardons filed a complaint and a motion for preliminary injunction in the United States District Court for the District of Massachusetts. They argued that they were entitled to have the notice of lien removed for three reasons. First, the Reardons maintained that they qualified as “innocent landowners” under § 107(b) of CERCLA, 42 U.S.C. § 9607(b), and therefore were not liable for any clean-up costs. Second, 42 U.S.C. § 9607(l ) provides for a lien on only that property “subject to or affected by a removal or remedial action,” 42 U.S.C. § 9607(l )(1)(B); the Reardons claim that since some of their Kerry Place parcels were not “subject to or affected by” the clean-up, EPA erred in filing a notice of lien covering all of those parcels.

Third, they asserted that EPA’s imposition of the lien without a hearing violated the due process clause of the fifth amendment to the United States Constitution. The district court held that § 113(h) of CERCLA, 42 U.S.C. § 9613(h), divested it of jurisdiction to hear the Reardons’ “innocent landowner” and “overbroad lien” claims. It found that the same section also purported to divest it of jurisdiction to hear the due process claim, but held that Congress was without power to place such a limitation on its jurisdiction. Turning to the merits of the due process claim, the *1512 district court held that the lien imposed by § 107(l ) did not amount to a taking of a “significant property interest” protected by the due process clause.

The court therefore denied the motion for a preliminary injunction and dismissed the complaint. The Reardons appealed, and a panel of this court found in their favor. The panel opinion construed § 9613(h) so as to permit judicial review of the statutory challenges to the lien, and did not reach the due process issue. In response to EPA’s petition for rehearing, however, a majority of the court voted to grant a rehearing en banc. Although the court en banc finds for the plaintiffs, as did the panel, we do so on constitutional rather than statutory grounds.


[1] We turn first to the question of jurisdiction. The district court, as we have noted, held that 42 U.S.C. § 9613(h) purported to divest it of jurisdiction over all three of the Reardons’ claims. We agree that § 9613(h) bars review of the “innocent landowner” and “overbroad lien” claims, prior to the commencement of an enforcement or recovery action, but we conclude that this section does not bar review of the due process claim. Section 9613(h), entitled “Timing of review,” explicitly limits the jurisdiction of the federal courts to hear certain cases arising under CERCLA. The section states, in part: No federal court shall have jurisdiction under Federal law … to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following: [listing 5 enumerated types of actions] 42 U.S.C. § 9613(h).

The five exceptions to the jurisdictional bar are all actions filed by the government or by a private citizen seeking to enforce or recover costs for the enforcement of CERCLA; for this reason, the district court described § 9613(h) as barring “judicial review of EPA actions prior to the time that the EPA or a third party undertakes a legal action to enforce an order or to seek recovery of costs for the cleanup of a hazardous waste site.” Reardon v. United States, 731 F.Supp. at 564 n. 8. As a convenient shorthand, we will say that § 9613(h) bars “pre-enforcement review” of certain claims. The district court framed the question of jurisdiction as whether the filing of a lien constituted a “removal or remedial action selected under section 9604 of this title.” As the district court noted, the terms “removal” and “remedial action” are defined terms under the CERCLA statute. 42 U.S.C. §§ 9601(23), (24). Another CERCLA provision says that these terms “include enforcement activities related thereto.” 42 U.S.C. § 9601(25) (emphasis added).

The court found that placing a lien on property from which hazardous substances had been removed was a type of enforcement activity. It therefore concluded that any challenge the Reardons could make, whether statutory or constitutional, was a “challenge[ ] to [a] removal or remedial action” over which Congress intended it not to have jurisdiction unless and until EPA brought an enforcement action. Reardon v. United States, 731 F.Supp. at 569. A. Jurisdiction over the “innocent landowner” and “overbroad lien” claims. We agree with the district court that filing a lien notice is a type of “enforcement activity” related to a removal or remedial action. And we agree that § 9613(h) bars the federal courts from hearing pre-enforcement challenges to the merits of any particular lien–challenges, for example, to the liability which a lien secures, or to the conformity of that lien to the CERCLA lien provisions. Several considerations lead to these conclusions. First, we think that the language of the statute, read for its ordinary meaning, supports such an interpretation.

Central to the entire CERCLA scheme is a provision that makes certain parties liable for the cost of removal and remedial actions. See 42 U.S.C. § 9607(a). When the government files a lien on property to secure payment of that liability, it can reasonably be described as seeking to enforce the liability *1513 provision. Thus, the activity of filing liens is, in ordinary language, an “enforcement activity.” Second, we believe that allowing challenges to the merits of particular liens would defeat some of the purposes of barring pre-enforcement review under § 9613(h).

Congress was no doubt concerned, first and foremost, that clean-up of substances that endanger public health would be delayed if EPA were forced to litigate each detail of its removal and remedial plans before implementing them. Thus, the Senate Judiciary Committee Report stated that § 9613(h) barred pre-enforcement review because such review would be a significant obstacle to the implementation of response actions and the use of administrative orders. Pre-enforcement review would lead to considerable delay in providing cleanups, would increase response costs, and would discourage settlement and voluntary cleanups. S.Rep. No. 11, 99th Cong., 1st Sess. 58 (1985).

As long as the remedy upon review of a lien was limited to the invalidation or modification of the lien, of course, such review would not directly delay clean-up of hazardous substances. However, we do not believe that avoiding delay was the only purpose of postponing review. As the Fifth Circuit stated in a similar case: Although review in the case at hand would not delay actual cleanup of hazardous wastes, it would force the EPA–against the wishes of Congress–to engage in “piecemeal” litigation and use its resources to protect its rights to recover from any [potentially responsible party] filing such a[n] action. . . . . .

Moreover, the crazy-quilt litigation that could result from allowing [potentially responsible parties] to file declaratory judgment actions prior to the initiation of government cost recovery actions could force the EPA to confront inconsistent results. Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1390 (5th Cir.1989). The same practical considerations weigh against allowing pre-enforcement review in this case. And we add to these reasons one more: information needed to decide legal challenges to liens may not be available at the time such challenges are made. To decide, for example, the Reardons’ claim that they are innocent landowners, a court must determine whether the contamination pre-dated their ownership; whether they had any knowledge or reason to know of the contamination; whether they had exercised due care with respect to the hazardous substances; and whether they took precautions to prevent releases by foreseeable acts of third parties. See 42 U.S.C. § 9607(a), (b)(3), EPA Supplemental Brief, at 16-17 (stressing complexity of resolving innocent landowner claim).

Notices of liens are likely to be filed early in the history of a response action–shortly after EPA has begun to spend money on waste removal and the landowner has been notified of potential responsibility. See 42 U.S.C. § 9607(l ) (providing for creation and filing of liens). At that point, EPA is likely not yet to know the full extent of the contamination, let alone when that contamination occurred, or whether it is likely that the owner exercised due care or took reasonable precautions. One purpose of § 9613(h), we believe, is to delay review until enough is known to decide these issues. Third, legislative history supports the view that § 9613(h) is intended to bar challenges to liability, such as the Reardons seek to make by attacking the lien filing, as well as challenges to the remedy EPA has chosen. During floor debate on this section, Senator Thurmond, Chairman of the Judiciary Committee, which drafted the section, explained: Citizens, including potentially responsible parties, cannot seek review of the response action or their potential liability for a response action –other than in a suit for contribution–unless the suit falls within one of the categories in this section…. 132 Cong.Rec. S14929 (daily ed. Oct. 3, 1986) (emphasis added). Senator Stafford, *1514 Chairman of the Conference Committee, stated: “When the essence of a lawsuit involves the contesting [of] the liability of the plaintiff for cleanup costs, the courts are to apply the provisions of section 113(h), delaying such challenges until the Government has filed a suit.” 132 Cong.Rec. S14898 (daily ed. Oct. 3, 1986) (emphasis added).

It is certainly possible that Congress inadvertently rather than purposefully included lien challenges in the judicial review bar. Congress amended the scope of “removal” and “remedial” actions to include “enforcement activities related thereto” primarily to ensure that EPA could “recover costs for enforcement actions taken against responsible parties.” H.R.Rep. No. 253(I), 99th Cong., 2d Sess. 66-67, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2848-49; see H.R.Conf.Rep. No. 962, 99th Cong., 2d Sess. 185, reprinted in 1986 U.S.Code Cong. & Admin.News 3276, 3278 (“This amendment clarifies and confirms that [enforcement activity] costs are recoverable from responsible parties.”). Perhaps Congress did not realize that other provisions referring to removal and remedial actions–such as the judicial review bar–would also be affected. But even if this were so, we do not see how our conclusion is altered.

First, as outlined above, reading the statute to bar review of pre- enforcement challenges to liens is consistent with the language and the purpose of the judicial bar. Second, and more importantly, Congress amended a definitional section, thus changing the meaning of “removal” and “remedial” wherever they appear in CERCLA. We cannot give the definition inconsistent readings within the statute. As the above-quoted legislative history makes clear, the 1986 amendment was certainly intended to allow the government to collect attorney’s fees in cost recovery actions. See United States v. Ottati & Goss, 694 F.Supp. 977, 997 (D.N.H.1988) (allowing attorney’s fees to United States under § 9607(a)(4)(A)), aff’d in part, vacated in part, 900 F.2d 429 (1st Cir.1990).

If liens to ensure the government’s complete recovery of its remedial costs are not “enforcement activities” related to the removal or remedial action–the view suggested by the dissent–then we do not see how a suit to recover the government’s clean up costs is an “enforcement activit[y]” either. And if “enforcement activities” in § 9601(25) is interpreted to exclude the expenses of cost recovery actions, this would have the effect of denying the government significant amounts of attorney’s fees– which was certainly not the intent of Congress. We therefore conclude, as did the district court, that § 9613(h) precludes judicial review of the imposition of a lien until EPA commences an enforcement action. [2]

B. Jurisdiction over the due process claim. Unlike the district court, however, we do not believe that § 9613(h) precludes federal court jurisdiction over the Reardons’ due process claim. First, such a challenge does not fit into the literal language of § 9613(h). That section refers to “challenges to removal or remedial action selected under section 9604 of this title.” Under our reading, it divests federal courts of jurisdiction over challenges to EPA’s administration of the statute–claims that EPA did not “select[ ] ” the proper “removal or remedial action,” in light of the standards and constraints established by the CERCLA statutes. The Reardons’ due process claim is not a challenge to the way in which EPA is administering the statute; it does not concern the merits of any particular removal or remedial action.

Rather, it is a challenge to the CERCLA statute itself–to a statutory scheme under which the government is authorized to file lien notices without any hearing on the validity of the lien. Second, we read § 9613(h) in light of the Supreme Court’s oft-repeated pronouncement that “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988); see Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); *1515 Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). [FN1]

We do not believe that the statute expresses a clear congressional intent to preclude the type of constitutional claim the Reardons are making–a challenge to several statutory provisions which form part of CERCLA. However, it is important to make clear that we are not holding that all constitutional challenges involving CERCLA fall outside the scope of § 9613(h). A constitutional challenge to EPA administration of the statute may be subject to § 9613(h)’s strictures. Such a claim may well be a “challenge[ ] to removal or remedial action selected under section 9604 of this title,” and may thus fall within § 9613(h)’s bar. We find only that a constitutional challenge to the CERCLA statute is not covered by § 9613(h).

FN1. Of course, § 9613(h) is styled as a provision that merely delays review, rather than precludes it–indeed, it is titled “Timing of review.” However, the only available review of the lien notice is in an enforcement action brought by EPA; and the judgment in that enforcement action will render moot the Reardons’ due-process-based request for injunctive relief against the filing of the lien, since it will decide whether or not the Reardons are liable under CERCLA. Hence, the effect of § 9613(h) is to preclude review altogether.

Third, extending jurisdiction to the Reardons’ due process claim does not necessarily run counter to the purposes underlying § 9613(h). For example, resolution of the due process issue does not require any information that is not likely to be available until clean-up of a site is finished. Because it is a purely legal issue, its resolution in a pre-enforcement proceeding does not have the potential to force EPA to confront inconsistent results (as would a finding, for example, that a particular spill was caused by an act of God). Of course, if we decide that filing a notice of a CERCLA lien without any pre- enforcement review does violate due process, EPA’s collection efforts will no doubt be hampered. However, we do not lightly assume that Congress intended to ease EPA’s path even at the expense of violating the Constitution. Fourth, although the two courts that have considered this issue have reached a different conclusion, see Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 293 (6th Cir.1991); South Macomb Disposal Authority v. U.S.E.P.A., 681 F.Supp. 1244, 1249-51 (E.D.Mich.1988), we are unpersuaded by the reasoning of those cases. Our disagreement commences with the phrasing of the issue to be decided.

Both courts frame the question as whether § 9613(h) “prohibits constitutional as well as statutory challenges until the time pr[e]scribed by the statute.” South Macomb, 681 F.Supp. at 1249-50; see Barmet, 927 F.2d at 292. We think that this question fails to make the distinction we have noted above, see pp. 1514-1515, supra, between two types of constitutional challenges–challenges to EPA’s administration of CERCLA, and challenges to CERCLA itself. Once we recognize this distinction, the reasoning of these two courts becomes less convincing. First, says the South Macomb court, Reading the language of § 9613(h) for its everyday meaning supports the notion that this subsection prohibits constitutional as well as statutory challenges until the time pr[e]scribed by the statute. The provision explicitly states that federal courts shall not have jurisdiction to review “any challenge” except for those enumerated. South Macomb, 681 F.Supp. at 1249-50.

But, the statute does not bar “any challenge,” without qualification; rather, it delays federal court review of “any challenges to removal or remedial action selected under section 9604 of this title.” 42 U.S.C. § 9613(h). Because a due process challenge to the CERCLA lien provisions is not, we believe, a challenge to “removal or remedial action selected under section 9604 of this title,” we do not find that the “everyday meaning” of § 9613(h) divests the federal courts of jurisdiction to hear such a challenge. Both the Barmet and South Macomb courts contend that legislative history–House and Senate Reports, and House Judiciary Committee Hearings– suggests that Congress intended § 9613(h) to bar all pre-enforcement challenges, including all *1516 constitutional challenges.

Upon examination, we find these materials unconvincing as well. The Senate Report states, in part: As several courts have noted, the scheme and purposes of CERCLA would be disrupted by affording review of orders or response actions prior to commencement of a government enforcement or cost recovery action. See, e.g., Lone Pine Steering Committee v. EPA, [600 F.Supp. 1487 (D.N.J.1985) ]. These cases correctly interpret CERCLA with regard to the unavailability of pre-enforcement review. This amendment [§ 9613(h) ] is to expressly recognize that pre-enforcement review would be a significant obstacle to the implementation of response actions and the use of administrative orders. Pre- enforcement review would lead to considerable delay in providing cleanups, would increase response costs, and would discourage settlements and voluntary cleanups. S.Rep. No. 11, 99th Cong., 1st Sess. 58 (1985).

We see nothing in this discussion which would indicate an intent to divest federal courts of jurisdiction to consider a claim that the provisions of CERCLA itself authorize deprivations of property without due process of law. On the contrary, the reference to “review of orders or response actions” suggests that the writers of the Senate Report focused their concern on the problems that would arise if courts reviewed the merits of particular EPA actions. Both Barmet and South Macomb attach great weight to the Senate Report’s citation “with approval” of Lone Pine, a case decided before § 9613(h) was enacted, which they say held that CERCLA did not allow pre- enforcement review even of constitutional challenges. We think there are good reasons to discount this citation.

For one thing, the 13-page opinion in Lone Pine contains no discussion of the question whether constitutional challenges to the statute as well as challenges to administrative action are barred; one can only infer that the Lone Pine court held this view from the facts that (1) the plaintiff’s complaint had one constitutional count alongside six statutory counts, and (2) the court dismissed the entire complaint. In fact, Lone Pine cites Aminoil, Inc. v. EPA, 599 F.Supp. 69, 72 (C.D.Cal.1984), the leading case holding that CERCLA did not bar jurisdiction to review constitutional challenges to the statute; and it does so, not to indicate any disagreement with that holding, but simply to agree with its holding that CERCLA does bar pre-enforcement review of administrative orders. See Lone Pine, 600 F.Supp. at 1497.

For another thing, the Senate Report does not cite Lone Pine for the proposition that federal courts have no jurisdiction to hear constitutional challenges; rather, it cites it solely as an example of a group of cases, sub silentio holding that review “of orders or response actions” would disrupt the purposes of CERCLA. We do not see why this should indicate agreement with Lone Pine’s purported holding regarding constitutional challenges, particularly since cases such as Aminoil would seem to fit just as easily into the group of cases described in the Report.

We do not find the House Report any more convincing. The pertinent passage in that Report, according to Barmet and South Macomb, is a statement that “there is no right of judicial review of the Administrator’s selection and implementation of response actions until after the response action[s] have been completed….” H.R.Rep. No. 253(I), 99th Cong., 2d Sess. 81, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2863. See Barmet, 927 F.2d at 293 (quoting this passage); South Macomb, 681 F.Supp. at 1250 (same).

This statement says nothing about judicial review of the CERCLA statute itself. South Macomb also cites testimony of EPA and Justice Department officials during hearings on the bill that contained § 9613(h). In response to a query from Representative Glickman as to whether EPA and the Justice Department “might accept some form of accelerated [pre-enforcement] review,” Mr. Habicht, the Assistant Attorney General for Land and Natural Resources, replied: Mr. Chairman, briefly, this issue has been litigated under the 1980 statute *1517 quite extensively, and there have been a number of decisions over the last several months that address the fundamental questions of the constitutionality of the procedures set forth in that law. Virtually across the board now the courts are finding that the scheme is constitutional as currently constituted. Superfund Reauthorization: Judicial and Legal Issues, Hearings before the Subcomm. on Admin. Law and Governmental Relations, H. of Rep. Judiciary Comm., 99th Cong., 1st Sess. at 226 (July 17, 1985); see South Macomb, 681 F.Supp. at 1250 (quoting this passage).

The South Macomb court comments: “Our reading of this exchange is that the EPA and the Department of Justice took the position that because the courts had already upheld the constitutionality of CERCLA, constitutional challenges could also await EPA enforcement actions.” Id. We do not find this passage quite so clear. It would appear to be an expression of hope by EPA and the Department of Justice rather than a statement of congressional intent, particularly in light of the fact that Congress passed a provision, § 9613(h), that by its language does not bar constitutional challenges to the CERCLA statute.

Finally, the Supreme Court recently examined a statute with a judicial review provision not unlike the CERCLA section analyzed here. At issue in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), was a provision of the Immigration and Nationality Act barring judicial review of a denial of “Special Agriculture Worker” (“SAW”) status except in the context of a deportation order. The statute states: “There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.” 8 U.S.C. § 1160(e) (as amended by the Immigration Reform and Control Act of 1986).

The Court held that this bar did not preclude review of “general collateral challenges to unconstitutional practices and policies used by the agency in processing applications.” McNary, 111 S.Ct. at 896. Rather, it only barred review of individual denials of SAW status. Id. The statute in McNary resembles the CERCLA provision at issue here in two respects. First, as here, judicial review of an administrative event is withheld until the agency instigates a second, independent proceeding. More significantly, the immigration statute is phrased so as to bar review of the agency’s determination of SAW status in an individual action–an event comparable to EPA’s selection of a removal or remedial action, which is the focus of the CERCLA bar. Neither statute mentions the availability of review of a constitutional challenge to the statute itself (as here) or to the agency’s execution of the statute (as in McNary ).

Insofar as the Immigration and Nationality Act compares to CERCLA, we think that the holding in McNary supports our conclusion here. See also Johnson v. Robinson, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974) (holding that similar jurisdictional bar precluded review only of administration of statute, not of challenge to statute itself); cf. Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975) (holding that more expansive language barred all challenges related to statute). Thus, we conclude that we have jurisdiction to consider the Reardons’ due process claim: that the CERCLA statutory scheme under which liens may be imposed on property without opportunity for a hearing violates the fifth amendment due process clause.


[4] The Supreme Court has established a two-part analysis of due process challenges to statutes which, like this one, involve property rather than liberty interests. One must first ask whether the statute authorizes the taking of a “significant property interest” protected by the fifth amendment. E.g., Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972). If there is no significant property interest involved, the inquiry is at an end. If there is, one proceeds to examine what process is due in the particular circumstances. *1518 E.g., id.; Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). We shall address each issue in turn. A. The Deprivation. The district court, relying primarily on Spielman- Fond, Inc. v. Hanson’s, Inc., 379 F.Supp. 997 (D.Ariz.1973) (three judge panel), aff’d mem., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974), found that the filing of a federal lien under 42 U.S.C. § 9607(l ) did not amount to a deprivation of a significant property interest; thus, the court did not reach the second step of the analysis.

However, a Supreme Court case decided after the district court had issued its decision (indeed, after oral argument at the en banc rehearing of this appeal) has clarified the law in this area considerably, and has precluded continued reliance on the Court’s summary affirmance in Spielman-Fond. In Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), a unanimous Court held that a Connecticut attachment statute violated the due process clause. The Court held that the attachment lien on plaintiff Doehr’s real property deprived him of a significant property interest within the meaning of the due process clause.

The Court stated: For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause. Doehr, 501 U.S. at —-, 111 S.Ct. at 2113. It concluded that “even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are sufficient to merit due process protection.” Id. (emphasis added).

And, in a footnote, it disposed of its summary affirmance in Spielman-Fond by noting that “[a] summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion.” Id. at —- n. 4, 111 S.Ct. at 2113 n. 4 (citing Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359-60, 39 L.Ed.2d 662 (1974)). See also id. at —-, 111 S.Ct. at 2113 (Rehnquist, C.J., concurring) (Spielman-Fond should not be read to mean that the imposition of a lien is not a deprivation of a significant interest in

Whether the response costs were incurred consistently with the national contingency plan is an issue which may be highly factual, but it is usually a matter of the amount, and not the existence, of liability. More likely to be “highly factual” is the determination whether certain of the owner’s parcels of land are “subject to or affected by” EPA’s response action. Similarly, on the issue of the landowner’s liability, EPA admits in its brief that the “concepts of due care, foreseeability, objective and subjective knowledge, some of which are unique in CERCLA to the innocent landowner defense, are extremely fact-intensive.” EPA Supplementary Brief at 16-17. Second, we must consider what procedural safeguards, if any, CERCLA provides against erroneous filing of a lien. a. The right to a judicial hearing. CERCLA provides no such safeguards.

It provides for no pre-deprivation proceedings at all–not even the ex parte “probable cause” hearing judged insufficient in Doehr. See Doehr at —-, 111 S.Ct. at 2108 (describing Connecticut attachment procedure). Nor does CERCLA provide for an immediate post-deprivation hearing. [FN2] The first hearing the property owner is likely to get is at the enforcement proceeding, or cost recovery action, brought by EPA.

This action may be brought several years after the notice of lien is filed; it is limited only by a rather complicated statute of limitations, see 42 U.S.C. § 9613(g)(2), which gives EPA three years after a removal action is completed or six years after a remedial action is commenced to bring such a suit. The running of the statute of limitations is entirely within EPA’s control. Since the government may take its own sweet time before suing, and since the removal or remedial action may itself take years to complete, the lien may be in place for a considerable time without an opportunity for a hearing.

FN2. The Connecticut statute at issue in Doehr provided “expeditious” post-attachment review, see 501 U.S. at —-, 111 S.Ct. at 2115, but the Court nonetheless found the statute constitutionally deficient. Even under Doehr, though, post-attachment process is not always inadequate. Doehr notes the factors leading to the Court’s approval, in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895 (1974), of a sequestration statute with no pre-deprivation review: “the plaintiff had a vendor’s lien to protect, the risk of error was minimal because the likelihood of recovery involved uncomplicated matters that lent themselves to documentary proof, and plaintiff was required to put up a bond.” Doehr, 501 U.S. at —-, 111 S.Ct. at 2114.

“[M]ere postponement of judicial enquiry is not a denial of due process if the opportunity given for ultimate judicial determination of liability is adequate.” *1520 Phillips v. Commissioner, 283 U.S. 589, 596, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931). But the CERCLA statute of limitations on liens throws the “ultimate judicial determination” so far into the future as to render it inadequate. Indeed, in this respect the CERCLA scheme resembles the replevin statutes in Fuentes v. Shevin, where the Court held that the debtor may not be “left in limbo to await a hearing that might or might not ‘eventually’ occur.” Mitchell v. W.T. Grant Co., 416 U.S. at 618, 94 S.Ct. at 1905 (discussing Fuentes v. Shevin ).

b. Posting of a Bond. The Court has recognized that requiring the filing party to post a bond may provide the property owner important protection against wrongful filing; in Doehr, four members of the Court suggested that due process always requires a plaintiff’s bond in the context of an attachment. See Doehr, 501 U.S. at —-, 111 S.Ct. at 2116 (plurality). CERCLA does not require EPA to post a bond when filing the notice of federal lien. c. Action for damages. In Doehr, the State of Connecticut argued that the availability of a double damages remedy for suits that are commenced without probable cause was an important protection against misuse of the attachment provisions; however, four members of the Court did not find the availability of such a suit to be an adequate procedural safeguard.

Four members of the court explained in detail why an action for damages would never prove adequate: The necessity for at least a prompt postattachment hearing is self-evident because the right to be compensated at the end of the case, if the plaintiff loses, for all provable injuries caused by the attachment is inadequate to redress the harm inflicted, harm that could have been avoided had an early hearing been held. An individual with an immediate need or opportunity to sell a property can neither do so, nor otherwise satisfy that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a child’s education, an entrepreneur seeking to start a business on the strength of an otherwise strong credit rating, or simply a homeowner who might face the disruption of having a mortgage placed in technical default. Doehr, 501 U.S. at —-, 111 S.Ct. at 2118 (plurality).

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