Cook v. Rockwell International Corp., 790 F.3d 1088

Background

Rocky Flats nuclear weapons plant operators (Dow/Rockwell) mishandled radioactive waste; neighbors sued alleging harm to property values and nuisance under Colorado law and claims under the Price-Anderson Act (PAA).
After a lengthy pretrial period, a jury awarded plaintiffs compensatory, punitive damages, and prejudgment interest; district court entered judgment for plaintiffs.
On first appeal the Tenth Circuit vacated the judgment as to PAA claims because jury instructions on the definition of a "nuclear incident" were too permissive, and remanded for further proceedings; the court expressly upheld the jury instructions on Colorado nuisance law.
On remand plaintiffs disclaimed invoking the PAA and sought entry of judgment on the existing state-law nuisance verdict; defendants argued (1) the PAA expressly preempts and precludes state recovery when a nuclear incident is alleged but unproven and (2) the prior appellate mandate precluded reinstatement of any part of the verdict.
The district court accepted both defenses and denied entry of judgment; plaintiffs appealed. The Tenth Circuit majority rejects PAA field preemption and holds the mandate did not bar entry of judgment on the existing state-law nuisance verdict; the case is remanded for entry of judgment consistent with that view.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Price-Anderson Act expressly preempts and precludes state-law recovery when a nuclear incident is alleged but not proven	Cook: PAA does not preempt state tort claims for lesser occurrences; PAA provides federal forum and limited conflict preemption only	Dow/Rockwell: PAA occupies field; if a nuclear incident is asserted but unproven, state recovery is barred (complete/field preemption)	Court: Rejected defendants’ express/field preemption theory; PAA does not bar state-law nuisance claims for lesser occurrences; presumption against preemption controls
Whether defendants forfeited the field-preemption argument by failing to develop it on first appeal	Cook: Defendants forfeited any field-preemption argument in first appeal; law of the case bars raising it on remand	Dow/Rockwell: They had preserved/raised field-preemption and may press it on remand	Held: Forfeited — prior panel said defendants did not develop that argument; law of the case prevents relitigation
Whether the prior appellate mandate barred entry of judgment on the existing state-law nuisance verdict	Cook: Prior panel reversed/remanded for proceedings “not inconsistent” with opinion; it upheld nuisance jury instructions and did not specifically preclude entering judgment on the unaffected state-law verdict	Dow/Rockwell: Mandate and Cook I’s language setting aside “the verdict” required vacatur of the entire verdict and precluded reinstatement without retrial	Held: Mandate did not specifically preclude entry of judgment on the existing nuisance verdict; district court should enter judgment unless further remand proceedings are required consistent with the opinion
Remedy on remand (retrial vs. entry of judgment)	Cook: Plaintiffs sought entry of judgment on existing nuisance verdict to avoid needless retrial; the court favors judgment entry given lack of error affecting state claim	Dow/Rockwell: If verdict was vacated or preempted, retrial required; concurrence would remand for a new trial	Held: Majority directs district court to enter judgment on the existing state-law nuisance verdict (concurrence would instead remand for retrial)

Key Cases Cited

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (presumption against preemption; historic state police powers)
Bates v. Dow Agrosciences LLC, 544 U.S. 431 (adopt reading disfavouring preemption when statute ambiguous)
Riegel v. Medtronic, Inc., 552 U.S. 312 (heightened presumption against preemption in areas of traditional state regulation)
El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (describing PAA as an unusual preemption provision that resembles complete preemption in some respects)
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (complete preemption doctrine and effect on removal)
Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (Congress left room for state tort remedies despite federal nuclear safety regulation)
Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59 (PAA motivated by concern about catastrophic nuclear liability and industry stability)
Caterpillar Inc. v. Williams, 482 U.S. 386 (complete preemption background)
Geier v. American Honda Motor Co., 529 U.S. 861 (federal regulatory scheme can coexist with state tort remedies; example in automobile safety)
Dish Network Corp. v. Arrowood Indem. Co., 772 F.3d 856 (district court may enter new judgment on remand consistent with appellate opinion)