860 F.3d 1193
9th Cir.2017Background
- March 2011 earthquake/tsunami damaged Fukushima Daii-chi Nuclear Power Plant (FNPP); radiation leaked and Japan established a comprehensive compensation scheme and paid billions in claims. Plaintiffs are U.S. Navy personnel deployed during Operation Tomodachi who allege radiation exposure and seek medical-monitoring fund and damages.
- Plaintiffs sued TEPCO in U.S. district court (Southern District of California) alleging negligence and related torts; amended complaints pared conspiracy allegations after a political-question dismissal of the FAC.
- TEPCO moved to dismiss on grounds including (1) Convention on Supplementary Compensation for Nuclear Damage (CSC) jurisdiction-stripping, (2) international comity, (3) forum non conveniens, (4) political question doctrine (military decisions/superseding cause), and (5) firefighter’s rule; district court denied and certified interlocutory appeal under 28 U.S.C. §1292(b).
- On appeal the court (9th Cir.) considered: whether Article XIII of the CSC ousts U.S. jurisdiction over these pre‑entry‑into‑force claims; comity/forum non conveniens balancing (Japan’s interest vs. U.S. interest in promoting CSC and protecting servicemembers); political question concerns about reviewing Navy deployment decisions; and whether the firefighter’s rule bars suit by servicemembers.
- The 9th Circuit held the CSC does not strip jurisdiction for incidents that occurred before the CSC entered into force; it affirmed the district court’s refusal to dismiss on comity and forum non conveniens grounds; it declined to find a political‑question bar at this interlocutory stage (factual and choice‑of‑law issues remain); and it declined to decide whether the firefighter’s rule applies to military personnel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSC Article XIII strips U.S. courts of jurisdiction over FNPP claims | Cooper: CSC should not bar U.S. suit because CSC entered into force after incident; plaintiffs filed before entry | TEPCO: Article XIII is jurisdictional and applies to pending cases, channeling FNPP litigation to courts of the state where incident occurred | Held: CSC does not strip jurisdiction for incidents before entry into force; Article XIII read in context is tied to the CSC compensation scheme and applies to incidents covered after entry into force |
| Whether to dismiss on international comity grounds | Cooper: U.S. forum appropriate given plaintiffs are U.S. servicemembers and U.S. interest in protecting citizens and promoting CSC implementation | TEPCO (and Japan amicus): Japan has strong interest and an existing comprehensive compensation scheme; foreign suits threaten uniform administration; comity favors Japan | Held: District court did not abuse discretion in declining comity dismissal; U.S. interest in promoting CSC and plaintiffs’ home‑forum choice weigh materially; court may revisit as facts/government positions change |
| Whether forum non conveniens requires dismissal | Cooper: plaintiffs are domestic, presumptively entitled to sue at home; Japan adequate alternative but private/public factors do not overcome presumption | TEPCO: Japan is adequate and more convenient (witnesses, evidence) | Held: District court did not abuse discretion in denying forum non conveniens; private and public factors balanced and plaintiffs’ home‑forum presumption prevails at present |
| Whether political question doctrine bars suit because Navy deployment is superseding cause | Cooper: plaintiffs’ negligence claims can be adjudicated without impermissibly reviewing military judgments; factual development needed to assess foreseeability/causation | TEPCO: Determining causation would require evaluating military deployment decisions, which are nonjusticiable political questions | Held: Court cannot conclude at interlocutory stage that political question doctrine mandates dismissal; choice‑of‑law and factual development required; TEPCO may renew the defense later |
| Whether firefighter’s rule bars servicemembers’ claims | Cooper: firefighter’s‑rule extension to military is not established; plaintiffs are outside typical domestic first‑responder posture | TEPCO: Rule should bar recovery by responders injured while responding to hazard caused by defendant | Held: Court declines to decide now; defers until choice‑of‑law and further development (may require certification to California Supreme Court) |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (determining retroactivity of statutes and transitional principles)
- Hamdan v. Rumsfeld, 548 U.S. 557 (contextual construction of jurisdiction‑stripping provisions)
- Lindh v. Murphy, 521 U.S. 320 (normal rules of construction govern temporal reach of statutes)
- Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (deference to executive branch treaty interpretation)
- Baker v. Carr, 369 U.S. 186 (political question doctrine framework)
- Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir.) (political question analysis where contractor liability implicated military/foreign aid decisions)
- Mujica v. AirScan, Inc., 771 F.3d 580 (9th Cir.) (comity/adjudicative comity factors and test)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (forum non conveniens framework)