Lindsay R. Cooper; James R. Sutton; Kim Gieseking; Charles A. Yarris; Robert M. Miller; Christopher G. Bittner; Eric Membrila; Judy Goodwin; Jennifer L. Micke; John W. Seelbach; Maurice D. Enis; Jaime L. Plym; Nathan J. Piekutowski; Carolyn A. White; Louie Viernes; Michael L. Sebourn; K.S., an infant by his father and natural guardian Michael L. Sebourn; Christian M. Ebueng; Paul J. Encinias; Daniel E. Hair; Adam W. Krutzler; David K. Malone; Robert Seligman; Eloi A. Whiteman; Jason D. Henry; Nellie Allen-Logan; Jami Beschorner; Nathan Canche; Nathan Criswell; Jason Troy Friel; Oscar Gonzalez; David Hahn; James Jackson; Jarrett Brady Johnston; Jonathan Medina; Adam Mintz; Mallory K. Morrow; William Netherton; Michelle Oden; Donald Rairigh; Christopher Rickard; Andrew Rivera; Steven Ray Simmons; Akeem Smith; Justin Spencer; Alan Spurling; Angel Torres; John & Jane Does 1-70, 000; Anthony Garcia; Jasmine Allen; Rhonda Anbert; Susan Ash; Adam Armenta; Jinky M.A., individually and as the Administrator of the Estate of Charliemagne T.A.; J.C.A., a minor by his mother as guardian ad litem Jinky M.A.; J.A., a minor by his mother as guardian ad litem Jinky M.A.; Dana Austin; Renar Awa; Josh Bane; Aramis Barrios; Trevor Beck; Markus Begay; Jordan Benoit; Jordan Bettencourt; Brett A. Bingham; Gunnar Borthick; Kenneth Cleo Boswell; James P. Bowen; Matthew Bradley; Nicolas Brewton; Nicolaus Brooks; Ryan S. Brown; Casey Brucklacher; Rebecca Brunet; Gerardo Bruing; Robin Calcaterra; Robby Canlas; Carlisi; Courtney Carmichael; Matthew Cartwright; Wayne Cassar; Fabian Cervantes; Melvin A. Chamberlain; Terance Chapman; William Chapman, Jr.; Annmarie Chessari; David Chitwood; George Cobb; Lori Lynn Cody; Keondice W. Cook; Angela Crabtree; Chad Croft; Brian Cross; Nicolas Crouch; Thomas Culberson; Vicent Curci; Honda Dagan; James Darnell; Janelle Darnell; Jason Dasilva; John Davis; Mark Decasa; Nichole M. Decatur; Martin Delgardillo; Tina Dibernardo; Brandon Dockery; J. D., a minor by his father as guardian ad litem Jeremy D.; Jeremy D.; Christian Doerr; Ian W. Dove, Plaintiffs-Appellees,
Tokyo Electric Power Company, Inc., AKA TEPCO, Defendant-Appellant, Solicitor General of the United States of America, Real Party in Interest.
and Submitted September 1, 2016 Pasadena, California
Submission Withdrawn October 26, 2016 Resubmitted June 22,
from the United States District Court for the Southern
District of California, D.C. No. 3:12-cv-03032-JLS-JLB Janis
L. Sammartino, District Judge, Presiding
Paul Collins (argued), Rio S. Pierce, and Gregory P. Stone,
Munger Tolles & Olson LLP, Los Angeles, California; Bryan
H. Heckenlively, Munger Tolles & Olson LLP, San
Francisco, California; for Defendant-Appellant.
Cabral Bonner (argued) and Charles A. Bonner (argued), Law
Offices of Bonner & Bonner, Sausalito, California; Paul
C. Garner (argued), Rancho Mirage, California; John R.
Edwards, Edwards Kirby, Raleigh, North Carolina; Catherine E.
Edwards, Edwards Kirby, Del Mar, California; for
Before: A. Wallace Tashima, Kim McLane Wardlaw, and Jay S.
Bybee, Circuit Judges.
panel affirmed the district court's denial of Tokyo
Electric Power Company, Inc.'s motion to dismiss a
putative class action brought by members of the U.S. Navy who
allege that they were exposed to radiation when deployed near
the Fukushima Daiichi Nuclear Power Plant as part of
Operation Tomodachi, a relief effort following the 2011
earthquake and tsunami on Japan's northeastern coast.
panel held that Article XIII of the Convention on
Supplementary Compensation for Nuclear Damage
("CSC") did not strip U.S. courts of jurisdiction
over claims arising out of nuclear incidents that occurred
prior to the CSC's entry into force on April 15, 2015.
panel held that the district court did not abuse its
discretion when it decided to maintain jurisdiction, and did
not dismiss plaintiffs' claim on international comity
grounds. First, the panel held that the district court did
not abuse its discretion in weighing U.S. and Japanese
interests, and in concluding that the parties' ties to
the United States outweighed the fact that the alleged
negligent conduct occurred in Japan. The panel noted that
Japan has a strong interest in centralizing jurisdiction over
Fukushima Daiichi Nuclear Power Plant-related claims, and the
United States had a strong interest in maintaining
jurisdiction over this in order to help promote the CSC.
Second, the panel held that the district court did not abuse
its discretion in finding that Japan would provide an
adequate alternative forum for resolving plaintiffs'
claims. Finally, the panel held that because comity is not a
jurisdictional decision, it is a fluid doctrine, and the
district court would be free to revisit the question should
either the facts or the interests of the governments change.
panel held that the district court did not abuse its
discretion in declining to dismiss on forum non
panel held that at this stage in the litigation, it was
unable to undertake the "discriminating inquiry"
necessary to determine if the case presented a political
question because there were outstanding basic factual
questions regarding the Navy's operations during
Operation Tomodachi. The panel concluded that the political
question doctrine did not currently require dismissal, but
Tokyo Electric Power Company was free to raise the political
question doctrine again, if and when, further developments
demonstrated that a political question was inextricable from
panel provided no opinion as to whether California's
firefighter's rule applied to military servicemembers
and, if so, whether it barred plaintiffs' claims.
March 11, 2011, a 9.0 earthquake and a massive tsunami struck
Japan's northeastern coast. The United States
participated in a relief effort known as Operation Tomodachi
(Japanese for "friend"). The plaintiffs in this
putative class action lawsuit are members of the U.S. Navy
who allege that they were exposed to radiation when deployed
near the Fukushima Daiichi Nuclear Power Plant
("FNPP") as part of Operation Tomodachi. The
earthquake and tsunami damaged the FNPP, causing radiation
leaks. Plaintiffs sued Defendant Tokyo Electric Power
Company, Inc. ("TEPCO"), the owner and operator of
the FNPP, in the Southern District of California for
negligence and other causes of action. TEPCO moved to dismiss
the case on the grounds of international comity, forum
non conveniens, the political question doctrine, and the
firefighter's rule. The district court denied the motion
on all grounds, but certified its order denying TEPCO's
motion to dismiss for immediate appeal under 28 U.S.C. §
1292(b). We agreed to take the interlocutory appeal. At this
interlocutory stage in the proceedings, we affirm the
district court's denial of TEPCO's motion to dismiss
on all grounds. Further developments, however, may require
the district court to revisit some of the issues that TEPCO
raised in its motion to dismiss.
FACTS AND PROCEDURAL HISTORY
The FNPP Meltdown
March 2011 earthquake and resulting tsunami were nothing
short of devastating. Over 15, 000 deaths were reported, and
there was immense damage to the region's infrastructure.
Cleanup efforts continue to this day, over six years later.
One of the most alarming consequences of the catastrophe was
the damage to the FNPP. The incident has been described as
the worst nuclear accident since Chernobyl. The FNPP
consisted of six boiling water reactors. At the time of the
earthquake, only units one through three were in operation.
The earthquake triggered an automatic shutdown of the three
operating units. Water from the tsunami, however, disabled
generators necessary to cool the reactors, causing the three
units to melt down and leak radiation. Plaintiffs allege that
the first meltdown occurred five hours after the earthquake
and that units one through three exploded that same day. They
further allege that over 300 tons of contaminated water from
the FNPP began seeping into the sea after the meltdown.
afternoon of March 12, the day following the earthquake,
Plaintiffs arrived off the coasts of Fukushima Prefecture
aboard the aircraft carrier U.S.S. Ronald Reagan and other
vessels to provide humanitarian aid. Plaintiffs allege that
TEPCO promulgated false information regarding the extent of
the damage to the FNPP, misleading the public, Japanese
officials, and the U.S. military. They allege that
TEPCO's management publicly announced that there was no
danger to those participating in Operation Tomodachi, despite
knowing that there was a risk of radiation exposure.
Plaintiffs claim that they and U.S. military officials were
unaware of the extent of the radiation leak and that they
would not have been deployed as close to the FNPP had TEPCO
been forthcoming about the damage. They further allege that
the U.S. military would not ordinarily discover such
radiation absent sufficient warning.
March 14, two days after their arrival, Plaintiffs allege
that their vessels were repositioned further away from the
FNPP after U.S. officials onboard the U.S.S. Ronald Reagan
detected nuclear contamination in the air and on an aircraft
operating near the FNPP. "Sensitive instruments"
aboard the U.S.S. Ronald Reagan discovered measurable levels
of radioactivity on seventeen aircrew members returning from
months following the earthquake, Japan commissioned the
Fukushima Nuclear Accident Independent Investigation
Commission (the "Commission") to investigate the
incident. The Commission determined that the meltdown was
foreseeable in light of the known tsunami risks in the region
and that TEPCO and the relevant regulatory bodies failed to
take adequate precautions to prevent the incident. Though the
earthquake and tsunami were natural disasters, the Commission
characterized the FNPP meltdown as a "manmade"
disaster. In 2013, TEPCO also allegedly admitted that it
could have avoided the meltdown.
effort to compensate victims of the FNPP meltdown, the
Japanese government developed a comprehensive scheme to deal
with the millions of claims resulting from the FNPP leak,
giving claimants the option to submit a claim directly to
TEPCO, to the newly established Nuclear Damage Claim Dispute
Resolution Center, or to a Japanese court. These avenues for
relief are available to all victims, regardless of
nationality. Over $58 billion has been paid out to victims of
the disaster. Brief of Amicus Curiae the Government of Japan
1-2, ECF No. 23. The Japanese government has provided immense
financial support to TEPCO to keep TEPCO solvent. Although
Plaintiffs could have pursued their claims against TEPCO in
Japan, they chose to sue in the United States.
District Court Proceedings
Plaintiff in the present suit alleges that he or she was
exposed to radiation during Operation Tomodachi. Plaintiffs
request a judgment compelling TEPCO to establish a
billion-dollar fund to cover continuing medical monitoring
costs. They also request damages, including lost wages,
non-economic damages, and punitive damages.
Plaintiffs' First Amended Complaint ("FAC"),
they alleged that TEPCO and the Japanese government conspired
to keep the extent of the radiation leak secret. They further
alleged that "the U.S. Navy was lulled into a false
sense of security, " which led it to deploy Plaintiffs
"without doing the kinds of research and testing that
would have verified" the extent of the nuclear meltdown.
The district court found that adjudicating this claim would
require impermissible scrutiny of discretionary military
judgments and would also require the court to evaluate
communications between the U.S. and Japanese governments
regarding the FNPP. Accordingly, the district court dismissed
the FAC under the political question doctrine but granted
Plaintiffs leave to amend. Cooper v. Tokyo Elec. Power
Co., Inc. (Cooper I), 990 F.Supp.2d 1035,
1039-42 (S.D. Cal. 2013).
Second Amended Complaint ("SAC"), Plaintiffs
removed their conspiracy allegations and relied instead on
allegations that TEPCO was negligent in operating the FNPP
and in reporting the extent of the radiation leak. TEPCO
filed a motion to dismiss, arguing that the SAC still
presented a political question because determining whether
TEPCO's conduct was the proximate cause of
Plaintiffs' injuries would require the court to evaluate
the Navy's decision to deploy troops near the FNPP. TEPCO
also argued that, given Japan's extensive efforts to
compensate FNPP victims, the SAC should be dismissed under
the doctrines of international comity or forum non
conveniens. TEPCO further contended that the so-called
firefighter's rule, which bars first responders from
suing those who cause the emergency to which they respond,
barred Plaintiffs' claims.
district court denied TEPCO's motion to
dismiss.Shortly thereafter, TEPCO filed a motion
for reconsideration in light of our opinion in Mujica v.
AirScan, Inc., 771 F.3d 580 (9th Cir. 2014), which
provided additional guidance to district courts on how to
determine whether to dismiss a case on international comity
grounds. The district court granted TEPCO's motion for
reconsideration, but again denied TEPCO's motion to
dismiss. Cooper v. Tokyo Elec. Power Co., Inc.
(Cooper II), 166 F.Supp.3d 1103 (S.D. Cal. 2015).
The district court concluded that the SAC's restyling of
Plaintiffs' claims no longer implicated any political
questions because it focused on TEPCO's negligence rather
than the military's decision to deploy troops.
Id. at 1117-24. The district court also rejected
TEPCO's alternative theories for dismissal. Id.
at 1126-28, 1130-40. Per TEPCO's request, the district
court certified the issues for immediate appeal under 28
U.S.C. § 1292(b). Id. at 1141-43.
appeal, TEPCO urges us to reverse the district court's
determinations regarding international comity, forum non
conveniens, the political question doctrine, and the
firefighter's rule. The government of Japan, which had
expressed no views on the location of this litigation to the
district court, also filed an amicus brief urging us to
reverse the district court's decision and order the
district court to dismiss Plaintiffs' claims so that
Plaintiffs can pursue their claims in Japan. In its brief,
the Japanese government expresses concern that foreign
lawsuits such as Plaintiffs' could threaten the viability
of Japan's continuing efforts to ensure that all FNPP
victims receive fair compensation.
light of Japan's brief, we solicited the United States
Department of State's views on whether this litigation
should proceed in the United States. In response, the United
States filed an amicus brief arguing that the district court
did not err in allowing Plaintiffs' claims to proceed for
the time being. Specifically, the United States opines that
allowing Plaintiffs' lawsuit to continue in the United
States is consistent with U.S. efforts to promote the
Convention on Supplementary Compensation for Nuclear Damage
parties each filed supplemental briefs in response to the
United States' position. General Electric Co.
("GE") also filed an amicus brief responding to
the United States' argument that maintaining jurisdiction
will help promote the CSC. Both TEPCO and GE argue that,
although it did not enter into force until after
Plaintiffs' litigation was already pending, the CSC
strips all U.S. courts of jurisdiction over claims arising
out of the FNPP incident. If correct, TEPCO and GE's
argument undermines the United States' position that
maintaining jurisdiction in the United States will help
promote the CSC and provides an independent basis for
dismissing Plaintiffs claims.
begin by addressing whether the CSC strips U.S. courts of
jurisdiction over Plaintiffs' claims. We then address
TEPCO's arguments regarding international comity,
forum non conveniens, the political question
doctrine, and the firefighter's rule.
Jurisdiction Under the CSC
is an attempt to create "a worldwide liability
regime" for dealing with nuclear accidents. Convention
on Supplementary Compensation for Nuclear Damage, Preamble,
opened for signature Sept. 29, 1997, S. Treaty Doc.
No. 107-21 (2002) [hereinafter CSC]. One of the main goals of
such a regime is to control the nuclear energy industry's
liability exposure, thus ensuring the continuing viability of
the industry, while at the same time ensuring compensation
for victims of nuclear accidents. Prior to the CSC, there
were two major conventions addressing liability for nuclear
accidents: the Paris Convention on Third Party Liability in
the Field of Nuclear Energy of July 1960 and the Vienna
Convention on Civil Liability for Nuclear Damage of May 1963.
Both of these conventions included a number of provisions
aimed at compensating victims of nuclear accidents while
keeping the nuclear energy industry viable, such as imposing
strict liability on operators of nuclear installations,
requiring those operators to maintain insurance in certain
amounts, permitting countries to cap the liability of nuclear
installation operators, requiring countries to fund
compensation for nuclear damage should private insurance be
inadequate, and centralizing jurisdiction over claims arising
out of nuclear incidents in the country where the nuclear
incident occurred. Vienna Convention on Civil Liability for
Nuclear Damage arts. II, V, VII, XI, May 21, 1963, 1063
U.N.T.S. 266; Paris Convention on Third Party Liability in
the Field of Nuclear Energy arts. 6-7, 10, 13, 15, July 29,
1960, 956 U.N.T.S. 251. The United States was not a party to
either of these conventions, but enacted similar measures in
the Price-Anderson Nuclear Industries Indemnity Act of 1957.
See 42 U.S.C. § 2210.
the CSC, a country must be a party to the Vienna or Paris
Conventions or have laws (such as the Price-Anderson Act)
that meet the requirements set forth in the CSC's annex.
The CSC builds upon these prior conventions and national laws
by creating an international supplementary compensation fund
for victims of nuclear incidents. Under the CSC, contracting
countries are required to ensure the availability of a
certain amount of funds to compensate victims of a nuclear
incident that occurs within their territories. CSC art. III.
Beyond that amount, the contracting countries will contribute
to a supplemental compensation fund. Id. Like the
Paris and Vienna Conventions, the CSC also provides that
"jurisdiction over actions concerning nuclear damage
from a nuclear incident shall lie only with the courts of the
Contracting Party within which the nuclear incident
occurs." Id. art. XIII(1).
was set to enter into force ninety days after "the date
on which at least 5 States with a minimum of 400, 000 units
of installed nuclear capacity" ratified it. CSC art.
XX(1). The CSC opened for signature on September 29, 1997, at
which time the United States signed it. See
Int'l Atomic Energy Agency, Status Report on the
Convention on Supplementary Compensation for Nuclear Damage
(2016). The United States ratified the CSC in May 2008,
id., but it was not until Japan signed and ratified
the CSC on January 15, 2015, almost four years after the FNPP
incident, that there were enough parties to put the CSC into
effect. Ninety days later on April 15, 2015, the CSC entered
into force, almost two-and-a-half years after Plaintiffs
first filed this suit. Id.
and GE do not argue that the entirety of the CSC applies to
the FNPP incident. Rather, they acknowledge the general
principle that "[u]nless a different intention appears
from the treaty or is otherwise established, its provisions
do not bind a party in relation to any act or fact which took
place or any situation which ceased to exist before the date
of the entry into force of the treaty with respect to that
party." Vienna Convention on the Law of Treaties art.
28, May 23, 1969, 1155 U.N.T.S. 331. Based on this principle,
TEPCO and GE accept that the CSC's supplemental fund is
unavailable for nuclear incidents occurring before the
CSC's entry into force, including the FNPP incident.
Appellant's Opening Brief 28, ECF No. 14; Appellant's
Supplementary Brief 10, ECF No. 98; Brief of Amicus Curiae GE
11, ECF No. 96. TEPCO and GE maintain, however, that Article
XIII's mandate that ...