Amcast Industrial Corp. v. Detrex Corp‪.‬

POSNER, Chief Judge. This is a sequel to the decision of the same panel reported at 2 F.3d 746 (7th Cir. 1993), in which we largely affirmed a judgment that the district court had entered in December of 1992 declaring that Detrex Corporation was liable to the plaintiffs for "response costs" under the Superfund statute, 42 U.S.C. § 9613(g)(2), and that these response costs included the attorneys fees that the plaintiffs had incurred to establish Detrexs liability. No assessment of attorneys fees had yet been made, however. More than a year later--March 1994--the district court entered an order directing Detrex to pay more than $500,000 in attorneys fees, from which Detrex appeals. In June, while this appeal was pending, the Supreme Court decided Key Tronic Corp. v. United States, 128 L. Ed. 2d 797, 114 S. Ct. 1960 (1994), holding that response costs do not include attorneys fees. Detrex argues that the doctrine of law of the case permits us to reconsider, in light of Key Tronic, our earlier ruling that response costs include attorneys fees. The plaintiffs call the ruling res judicata, precluding reconsideration. We affirmed the district courts declaratory judgment in all but one respect, and this unrelated to the amount of response costs for which Detrex was liable or to the issue whether those costs include attorneys fees. (The district Judge had based liability on Detrexs status not only as an owner and operator of tanker trucks but also as an arranger of transportation by a common carrier, and we held that it was liable only as an owner and operator.) The plaintiffs ask us to hold that when we affirmed the relevant portions of the declaratory judgment, and the Supreme Court denied certiorari, the judgment became "final" for purposes of res judicata.