may please the court my name is randall levine for appellant q t y i'd like to just reserve three minutes for rebuttal right now if that's all right yet you have to keep track of your time if we're asking keep track of your own time but of course i'm a very good this is the nd time this circle of contribution case has been before this court on appeal in t y one and this court held the district court abused its discretion by allocating zero percent of the cost to the government three errors in particular drove that reversal st the district court failed to consider that t d y wasn't negligent and government specs required the contaminants at issue it disregarded the contractual course of dealing in rd it misapplied binding circuit precedents the district court repeated all three errors on remained and abuse its discretion again by allocating the government just point six percent instead of zero percent as well i'd like to ask you what what effect the concurrence hands because they have concurrent jabs  completely concurred it wasn't a special concurrence was part of the main the main deal saying go back and look at these factors again and yet very clearly said that something very close to  ero would be permissible on this record now isn't that the sort of hymns that district judge is entitle to take into account yeah i'm doing the analysis complex planing the way he might rule given the opportunity but the points that he was making are several of them are just simply inconsistent and irreconcilable with the majority opinion for example the point that you just mentioned where judge wofford said that he thought something close to zero percent for the government might be able to be upheld the the central holding of the majority opinion is that the facts of this case do not support an extreme departure from the allocation in the shell can use in the cattle i think if you case that's not me other hand the opinion towards the end says well yet those cases are different and sets out some of the reasons why they are distinguishable so it seems to me a mixed message to the district court a very mixed message to the district court about what what it had was taken the overall award single instance of the ten percent and five percent room but even that is actually a misleading way of looking at it because it's not a straight ten percent and five percent of two chemicals st of all there's there's three chemicals issuing from one of those chemicals p c b is the court arbitrarily decided to assign zero percent to the government without any explanation rationale whatsoever well that's not respect it's not quite true either because the difference is that that chemical was not required by the government contracts and so it was voluntary on the part of your client that you may not agree with it but i don't see how that's arbitrary or absent an explanation both and that's not consistent with the government liable for a zero percent of the p c b contamination even though it was the government's own equipment that leaked the p c b is is arbitrary and the court didn't resist that decision even though this court identified many factors that the court was supposed to have considered that all point to a high high allocation of responsibility for the government for example read the district or didn't consider at all that this court found that the fact that the government on  that ninety to one hundred percent of the science work came from wartime contracts that p c p s leaked from government equipment and the fact that t d y had used the industry standard process is and had complied with all of the environmental rules and that the government had reviewed and approved all of the that the court was supposed to take into consideration on remit it was supposed to take into consideration those factors and listed the court was supposed to take into consideration the contractual history between the parties in which the government had voluntarily agreed to pay ninety to  it's somewhat misleading to say that they're paying only five percent or ten percent or zero six percent they really if you look at the total problem paid a lot more of that so why doesn't that cut against your position instead of in favor of it when i said i don't think that's right i think with the contractual course of dealing demonstrates is that when the parties were free to allocate this liability amongst themselves the government and  understood that it was fair and reasonable for the government to foot the bill for these costs for all of the reasons that this court recognised and t t y and in fact that's perfectly consistent with for example the decision in the cadillac where and in the shell case to where where the district court and this court in affirming those cases found that if the parties had an opportunity to allocate those costs contractually they understood that the government benefitted so much from this production that the government would have paid for this cleanup well we don't have to speculate about that here we know that's what happened because the parties did have an opportunity to allocate the cost among themselves and they allocated it to the government in an amount that was consistent with the amount of work that was being performed for the government at the site which was ninety one hundred percent of the work at the site this court already decided in t t y one that that was a relevant factor and that it was important to the analysis the district court didn't have discretion to just ignore it again and reaffirm its prior decision that said that that contractual history doesn't matter and doesn't weigh in favor of an allocation to the government that was already decided so it was the court's job on re man to decide how much that weighs in the analysis and to to actually consider the that provides a baseline right it sets an expectation among the parties that the government is going to at least participate in to a great extent the payment for the cleanup of the site as it always had done and this is another reason why  district court's decision on remand went astray and because this court specifically held that there were important similarities between this case and the cadillac fairview case and the shell case and those similarities are needed to be considered and they weighed in favor of a substantial allegation to the government and the court said that the facts of this case simply don't support an extreme deviation from the allocation of shell oil and i think the important thing to recall is that the district or didn't find that any aspect of t t u eyes operations or practices violated industry standards all of those practices including the ones that resulted in the contamination were observed by the government and approved by the government in specific process documents the bottom line is that just like in shalyn just like in cadillac the government had a need needed to produce planes for the war effort and the contamination resulted from the government approved process for manufacturing plants the contamination would have occurred no matter who operated the site because the process would have been the same no matter what it was the government's contracts and specifications that were the but for cause of the contamination and that's why the parties agreed that the government should pay the majority of the cleanup costs throughout the entire course of dealings between the parties in shell you know that the government was not more directly involved than it was here in the sense that here the government could have controlled any process that it lights and had the capacity to do it it was observing those processes it was aware of what was happening but it didn't control them and there was no reason for it to change anything that t d y was doing because at the time as contamination occurred the government and not not t t y understood that these chemicals were harmful or that there was any need to exercise any special care with them but the district court expressly found that as time progressed and as you know came to be understood that these chemicals were hazardous and as there and to be environmental regulations we lived promptly at all times complied with those environmental regulations and took the steps necessary to minimize the releases that's a factor that in  d y won this court expressly found to undercut the district court's decision to allocate zero percent to the government but again and remain and that did not cause the district court to change its allocation even one dollar disregarded that fact even though it was firmly rooted in the district court's own findings of fact so in that sense i don't think this case is being fully distinguishable from shell or from from cadillac fairview the government could have controlled and and and was aware that the waste needed to be disposed of it was not aware or involved in this specific activities that the contractor took to dispose of the waste that's not all that different from what actually occurred here the government was aware that these processes were going to result in some drips and spills or other operational releases and it just wasn't important to make sure that those were stopped until it would came you know obvious that those chemicals were hazardous and there needed to be greater those factual distinctions would warrant some adjustments re the or didn't say that the same one hundred percent allocation to the government was necessarily compelled by those cases but it did say that the facts weren't so different a it could encompass a one hundred percent change in aids the it said that actually no sharp deviation could be upheld and the this case might be different from shell but it's not one hundred percent different from sh it's not even ninety nine four percent different from shell the basic facts of a of the government contracting with a contractor for important war materials that resulted in contamination and where no party is at fault no party has negligence no party has an informational advantage over the other in cases like that similar to cadillac and similar to shall this court has previously affirmed a one hundred percent allocation to the government it can't allocation rd judge a quarter of an allocation that's possible all that none of them has an abuse of discretion that's kind of the point of discretion so even under the please go rethink mandate i don't i don't know why you would say that and it had to be the same or close to the same just sort of as a matter of law  that in certain cases the abuse of discretion standard is defined by abuse of discretion in choosing the correct factors to consider and then applying those factors and if the court chooses the wrong factors that's abuse of discretion that's exactly what reading and we have to do that assume that the that the judge followed the directions and therefore considered the correct factors i don't think there's any reason to assume that in fact the just records opinion on remained refutes the just that they needed to be considered it said that they were relevant factors to the analysis so they needed to be considered and they weighed in favor of allocation of the cost to the government they they could not be disregarded and they could not be found to weigh against allocation to the government one held and it held that was true both for the contractual course of dealing between the parties and it held that the court needed to consider you know the similarities between this case and shell and cadillac and the importance of precedent and it also held that there were other factors that needed to be considered that the court of use its discretion by failing to properly consider their discretion even in certain cases has limits and those limits are important and here they're there even limited by the fact that the district court below was not writing on a clean slate it was not a free shot at another abuse of discretion standard to decide however the gist the court thought appropriate the just report needed to calibrate its decision according to what the hear from the united states government had thank you may please the court my name is rachel heron on behalf of the united states and everyone hear me all right yes thank you you united states was its customer and to be sure it was a relatively involved customer but that does not make it a liable party under certain stand the reason that it's liable under surplus is that it happened to own some equipment at the site  remand after the district court had the opportunity and the obligation to redress those two errors of the court identified only explicit guidance of the district court not on that question of what science it was appropriate what's last year was appropriate and i would also say that the fact that the merge already didn't answer that question is entirely consistent with the surplus standard of review and  angry make you believe i think the st and most important difference between the decision on remand with regard to contractual history and the original decision on that issue and is that been remanded station no longer relie briefing on that topic sort of getting into the details of the federal contract the regulation and why it is that go overhead he meant don't think anything about the parties responsibility and don't say anything about what the parties would intend to just a couple other points and then i would hit your honor in response to some of the points that were made in the opening arguments that the glee with regard to this court has decision that purporting to interpret what the majority opinion says and he's not important purporting to instruct how the majority's opinion should be implemented on remand it's the majority opinion that controls and it's the majority opinion that th bound to follow on remand and that is if it did not follow with respect to the contractual course of dealings that the the district court did not meaningfully reconsider that factor  at all and the new conclusion that it reached on remand for coming to exactly the same conclusion that it came to before was the conclusion that in the by paying the contractual overhead in direct expenses the government government's sovereign immunity not not the contractual provisions and that's not why the contractual provisions are important that's exactly what the court held in cadillac that it was the contract that was sovereign immunity and circled with sovereign immunity and other also it doesn't matter whether you know that the government was agreeing to pay for a circle of expenses that might have occurred in the future the reason that the those payments reporting is because they show that at the time the parties thought that allocation analysis and the government is asking this court to exercise a form of review in which any allocation the court might have possibly reached below but between zero and one hundred percent or zero six to one hundred percent which isn't that different it can be affirmed just on the basis of of the records discretion but that deprives this court of any meaningful ability to exercise judicial review that's not what the statute provides for and it would a remove any of capacities for this court to guide the analysis in these important cases some instructions for the just record on remand after reversal are required they should make clear that any allocation has to be afternoon session