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Cooper v. Tokyo Electric Power Company, Inc.

United States Court of Appeals, Ninth Circuit

June 22, 2017

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.

          Argued and Submitted September 1, 2016 Pasadena, California

          Submission Withdrawn October 26, 2016 Resubmitted June 22, 2017

         Appeal 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

          Daniel 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.

          Adam 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 Plaintiffs-Appellees.

          Before: A. Wallace Tashima, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges.


         Interlocutory Appeal

         The 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.

         The 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.

         The 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.

         The panel held that the district court did not abuse its discretion in declining to dismiss on forum non conveniens grounds.

         The 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 the case.

         The panel provided no opinion as to whether California's firefighter's rule applied to military servicemembers and, if so, whether it barred plaintiffs' claims.


          BYBEE, Circuit Judge

         On 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.


         A. The FNPP Meltdown

         The March 2011 earthquake and resulting tsunami were nothing short of devastating.[1] 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.

         On the 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.

         On 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 relief missions.

         In the 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.

         In an 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.

         B. District Court Proceedings

         Each 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.

         In 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).

         In the 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.

         The district court denied TEPCO's motion to dismiss.[2]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.

         C. Appellate Proceedings

         On 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.

         In 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 ("CSC").

         The parties each filed supplemental briefs in response to the United States' position. General Electric Co. ("GE")[3] 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.

         II. ANALYSIS

         We begin by addressing whether the CSC strips U.S. courts of jurisdiction over Plaintiffs' claims.[4] We then address TEPCO's arguments regarding international comity, forum non conveniens, the political question doctrine, and the firefighter's rule.

         A. Jurisdiction Under the CSC

         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.

         To join 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).

         The CSC 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.

         TEPCO 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.[5] 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 ...

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