that morning we have three cases this morning to be argued in the first is number ten day forty seventy eight commonwealth of pennsylvania be lucky martin corporation mr murphy and m through its kind of claim against the e p in effect the claims against the other parties that you have here be the commonwealth or the other state organization is this case moot as you say is this case then  they stipulate that i think a couple different thoughts on that i think the problem for this court is that you have a district court opinion that was based on arguments come off a low that lockheed martin could not offset responsible for three under your view twelve million to recoup you could pay up twenty or recoup the five million and you also have the third party claim for three so it's twenty less  under the commonwealth's view it seems like it's still twelve million because you're recouping eight million through your counter claim that the e p a assumes the three million owed by its non  agencies because under state law the only agency that can respond so it's that he end up not twelve not twelve with respect to at least the commonwealth is there really any argument if at the end i court analysis you end up having to pay fifteen million because the three million from the other agencies you can't it's been dismissed because they take books of qualified immunity but again the commonwealth no problem we have a spill of water but at least this water appears defective cup we're going to sue that's always my excuse but no one buys the right things it's fine it's far at least it was a coffee here that's true good thank you it's going to get extra pay for this good may please the court my name is kimberly hummel and i represent the commonwealth of pennsylvania and the department of conservation and natural resources in this matter this appeal is really about whether these seen are can be added made an additional party to this case the case below brought by the e p a on behalf of the commonwealth against lucky you're absolutely right and that opposed to what attorney murphy has said the commonwealth has never taken the position that lockheed could not raise whatever defenses it felt was appropriate against the commonwealth b p is the agency authorized under state law to bring this matter there was a just so i understand your position i think what you're saying is the money is is the say but who you are how you go about analyzing getting to the twelve million maybe a little different is it your position that any recruitment claim that lockheed well there's two distinctions here that need to be made when you say waived it's immunity by filing this action in federal court the e p clearly has invoked the federal court's jurisdiction to hear this matter and in order to hear the matter the court has to be able to consider lockheed's defenses so when you're talking immunity to suit in federal court yes that and hockey defenses against  a not waiver by litigation with respect to the commonwealth and the other state agency if you're saying that that in effect the a p is going to be responsible for that anyway i mean think in one sense lucky what really doesn't care as long as and at the same thing dollars but for our purposes question is if you waive by litigation sovereign immunity as to a commonwealth entity why don't you wait by litigation the sovereign immunity with respect to other commonwealth and the days that are involved with regard to this particular series of incentives in terms of the federal court the district courts ability to hear that defense to consider owner operator i mean the issue here is owner operator liability the commonwealth own the site lockheed is asserted that the commonwealth other agency has operated the site the the district courts ability to consider those issues in in the defensive mode it can do that to offset what the e p a is seeking to recover from lockheed but it's important to understand that the district court in considering those defenses still will need to contend with the commonwealth immunity to liability under state law that's up before us that's authorized to do the cleanup in this case the e p a is the agency of the commonwealth that's authorized to try to recover those costs of course the commonwealth is the real party in interest quite frankly that seemed obvious to us and  the issue that that now we're for the first time we're saying that this is the real party in interest but but but what happened in the district court by virtue of you claiming sovereign immunity with respect to the other two entities it possibly cost or would cost lockheed martin under my hypothetical three million dollars if afterwards you agree that to the extent there's recoupment it can be up to eight eight million in my hypothetical wouldn't the easy thing for you to do in order possibly to avoid having a decision on the issue that you may not want to decision on is to some luck with them and ask the district court to vacate its opinion in effect you've settled lisa we don't want the district court to vacate its opinion we are firm that lockheed it is not appropriate for lockheed to file if third party complaint against the commonwealth and department of environment or conservation natural resources seeking an p can deal with as the office of general counsel is the is the office that's representing the commonwealth here the office of general counsel attorneys are representing the e p i am with the office of general counsel the district court said that lockheed cannot bring a separate action against the commonwealth and d c and are for a judgment that is far different than simply recouping whatever liability the commonwealth may have and reducing the judgment that the commonwealth through the e p may get and it isn't judged the mandals opinion about fifteen sixteen years ago in gloucester environmental the way we should we should go here in gloucester environmental judge the mandal and that case indicates and i have not looked at the at the intents and purposes the state well the state hospitals could he actually found that their colleges were not in fact the state and were on their own so it was only the state hospitals that he found could have right gret part of the you know what he said was they cannot in the same next breath argue in effect that they are not the same state which father sued in the first place but he found at the end of that opinion that what the the third party plaintiffs were really seeking was recoupment and judge rambo in this case has not found that and quite frankly i believe she was correct it there is no way that a third party complaint seeking a judgment is defensive it simply is not it is an affirmative action seeking a judgment it is sometimes a really different from the counter claim as a practical matter that it's probably not different you know you're you're doing the math and you're right the end result could be the same but the issue here is states are actually actually what actually goes further than that it's not just the math in terms of where you end up in terms of the amount the lucky martin but if if it's all coming from in effect the same commonwealth pot why are all the commonwealth entities that are involved in this including the commonwealth itself really part of the same hole that in effect by litigation as wave sovereign immunity it's not it's not confusing it's unnecessary on the one hand the other hand saying you have unnecessary because the only thing lockheed can do is reduce the claim the commonwealth is making to recover its costs lockheed cannot get a raise those defenses raise those issues of liability to the extent the district court finds that in fact there is real liability associated with that there's no immunity to liability of those claims yes the court can deal with the the peace supreme court decision there was that seems to be a following that the same thought process that you had in gloucester environmental well first of all the peters is a as you know removal case it was you know the state was in a defensive posture that was sued in state court state law claims remove the case and removal is makes you qualify under waiver by litigation right but all that could happen then is that the federal court then had jurisdiction to hear the state law claims which it wouldn't have otherwise had it doesn't there was no third party actor brought into that you know it's it's helpful as far as it goes but this issue is really something beyond that because then it would be as if if ben live live pete is filed a third party complaint against somebody else and attempted to bring them into the case state fully expects the district court to hear this claim and to hear lockheed's defenses to reduce the judgment against it it's the distinction between that is what the court fully has jurisdiction to do that does not the waiver is limited however and you know all of this u s supreme court cases have clearly articulated the importance of state sovereign immunity and that waiver has to be narrowly construed and what we're saying in this case is that waiver does not extend to lockheed being able to bring a separate complaint against a separate agency and seek an affirmative judgment against that agency and there's no need for it in this case because it can do everything it needs to do in terms of the defenses it raises to the to the claims made by the department of environmental protection in the original complaint you're nervous  i'm concerned that that there's some notion that that waiver is broader right that things one that right we we don't want between versus liabilities ackley that's a very important case for how would how would that play out in this particular circumstance in this particular star circumstance what what how that would play out as i said before is if lockheed can't bring it's third party complaint because that that extends the waiver of the federal court's jurisdiction be beyond what we've agreed to that's the first part of the way the federal court's jurisdiction the second part which one part of clearly articulate is the state's immunity to liability so when the district court when this goes back to the district court the case proceeds lockheed raises its defense of defenses about for the all of the state actors the state is going to argue that it it as a sovereign still has immunity to liability under various things including circle you know i mean there's there's going to be arguments made at that point and the state has not waived those the federal court is simply doing the same thing that the state court would do if it was hearing this issue and the state's sovereign immunity to liability is still intact it has not been weighed so bad it's in him another important piece of this that the commonwealth it's important that everyone here anderson you know that we think it's important that lock you understand that and and it's true the district court didn't question in your history which is a state law as i said circle under both though the section thirteen cause of action bringing is entirely derivative of their cause of action we have not occurred response cos at this site there is no possible way we could ever alleg decision and other federal law opinions here that say you know this is this the state has a real party interest on these agencies only have sovereign immunity through the state that the constitution does not grants individual state agencies sovereign immunity believe i've got to argue it right i mean isn't the camera clean enough is archer covered i guess she says they haven't changed your opinion position in this matter but in the case below they argue that we could not use our counter claim army under his deputies and so we will deal with that but i think it's already been dealt with one law thank you very much and thank you both counsel for well presented and well argued arguments  we would ask if you could compare with the clerk's office afterwards and have a transcript ordered of this or argument and thank you for a job well done both of you may take the matter under advisement call the next case