JAMES MATTHEWS and JENNIFER BROWNFIELD CLARK, individually and on behalf of all others similarly situated; JOANNE ROSS, parent and natural guardian of Estate of A.R., a deceased minor, and individually and on behalf of all others similarly situated v. CENTRUS ENERGY CORP.; UNITED STATES ENRICHMENT CORPORATION; URANIUM DISPOSITION SERVICES, LLC; BWXT CONVERSION SERVICES, LLC; MID-AMERICA CONVERSION SERVICES, LLC; BECHTEL JACOBS COMPANY, LLC; LATA/PARALLAX PORTSMOUTH, LLC; FLUOR-BWXT PORTSMOUTH, LLC
No. 20-3885
United States Court of Appeals for the Sixth Circuit
October 6, 2021
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 21a0232p.06. Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:20-cv-00040—Algenon L. Marbley, Chief District Judge.
Before: STRANCH, BUSH, and READLER, Circuit Judges.
COUNSEL
ON BRIEF: Kelsey J. Reno, VILLARREAL LAW FIRM, LLC, Chillicothe, Ohio, for Appellants. Richard D. Schuster, VORYS, SATER, SEYMOUR AND PEASE, LLP, Columbus, Ohio, Jacob D. Mahle, Jessica K. Baverman, VORYS, SATER, SEYMOUR AND PEASE, LLP, Cincinnati, Ohio, for Appellees.
CHAD A. READLER, Circuit Judge. Plaintiffs believe they have been exposed to radioactive material released by a nuclear plant in Ohio. In an attempt to recover for harms that exposure allegedly caused, they asserted state law claims in state court against entities involved in the plant‘s operations. The entities in turn removed the action to federal court and then argued that the Price-Anderson Act, which governs “any public liability action arising out of or resulting from a nuclear incident,”
BACKGROUND
A. To help frame the issues before us, we begin with a review of the federal regulatory scheme governing American nuclear power production. In the early years of our nation‘s exploration into nuclear power, the federal government enjoyed a monopoly on nuclear power production. See
Congress later amended the Act on multiple occasions. Among those legislative efforts was a 1966 amendment that required indemnified licensees to waive various common-law defenses in actions arising from an “extraordinary nuclear occurrence.” See
In 1988, Congress amended the Act again in response to the Three Mile Island accident and the wave of litigation it prompted. See
any occurrence, including an extraordinary nuclear occurrence, within the United States causing . . . bodily injury, sickness, disease, or death, or loss of or
damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material.
Id.
B. With the regulatory table set, we turn to the dispute before us, one centered in Pike County, located in Ohio‘s Appalachian region. Pike County is home to the Portsmouth Gaseous Diffusion Plant. The plant has a long history of nuclear power generation. From the early 1950s until 2001, the plant enriched uranium, initially to support the United States’ nuclear-weapons program and later to fuel commercial nuclear reactors. Since 2002, the plant has been used as a facility to convert depleted uranium hexafluoride (a coproduct of uranium enrichment) into uranium oxide, a more stable compound that can be reused, stored, transported, or discarded. Until 2016, the plant also served as the site of operations for the American Centrifuge Lead Cascade Facility, which processed uranium in a closed loop to show the effectiveness of the centrifuge design and equipment.
Plaintiffs are four individuals who lived near the plant, one of whom is now deceased and is represented here by his estate. Defendants are entities that have been involved in various activities at the plant since 1993, including uranium enrichment, depleted uranium hexafluoride conversion, and environmental remediation. Plaintiffs claim that defendants have misleadingly portrayed the plant as safe when, in reality, it discharged radioactive material that caused (and continues to cause) them to suffer harm. Plaintiffs allege that their exposure to that radioactive material caused them bodily injuries (including death) as well as property losses. Plaintiffs also seek to represent a class of “[a]ll individuals and minor children who were exposed to the toxic and radioactive material expelled by the [plant]” and have allegedly suffered physical injury.
In 2019, plaintiffs filed suit in Ohio state court asserting seven claims under Ohio law. Defendants removed the case on the grounds that the complaint, although it did not assert a federal claim, nonetheless raised a federal question under the Price-Anderson Act. See
The district court granted defendants’ motion. Invoking our decision in Nieman v. NLO, Inc., 108 F.3d 1546, 1552–53 (6th Cir. 1997), the court concluded that “[p]laintiffs’ state law claims fit squarely within” the Price-Anderson Act‘s definition of “nuclear incident,” meaning the claims were preempted. And because plaintiffs did not otherwise opt “to proceed under the Price-Anderson Act,” they failed to state a cognizable claim. The court also dismissed plaintiffs’ motion to remand as moot. See
ANALYSIS
On appeal, plaintiffs challenge the district court‘s holdings that the Price-Anderson Act preempts their state law claims and that plaintiffs otherwise failed
A. As its name suggests, the Supremacy Clause of the United States Constitution instructs that federal law is “the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Congress sometimes exercises its power to preempt state law through an express preemption clause. Torres, 995 F.3d at 491. In that instance, Congress explicitly indicates in a statute‘s text that it is displacing or prohibiting the enactment of state legislation in a particular area. See, e.g.,
Congress may also preempt state law implicitly. Torres, 995 F.3d at 491. Implicit preemption typically comes in one of two forms: field or conflict. Id. Field preemption occurs “where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Gade v. Nat‘l Solid Wastes Mgmt. Ass‘n, 505 U.S. 88, 98 (1992) (cleaned up). Conflict preemption, meanwhile, occurs “where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (cleaned up). While recognized as separate categories, these two forms of implied preemption are not “rigidly distinct.” English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990) (explaining that “field pre-emption may be understood as a species of conflict pre-emption“).
Generally, federal preemption is raised as an affirmative defense to a plaintiff‘s allegations. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). In most instances, preemption cannot serve as the basis for removal of an action from state court, as federal question jurisdiction—the main hook for removal absent diversity jurisdiction—“exists only when a federal question is presented on the face of [a] plaintiff‘s properly pleaded complaint” (the so-called “well-pleaded complaint rule“), id., ignoring any potential defenses, Roddy v. Grand Trunk W. R.R., 395 F.3d 318, 322 (6th Cir. 2005). But defendants can avoid the well-pleaded complaint rule in two circumstances. Id. The first is where Congress expressly permits removal. Id.; see, e.g.,
B. At first blush, the Price-Anderson Act would seem to fit the mold of complete preemption, as it “deem[s]” any suit asserting “public liability arising out of or resulting from a nuclear incident” to be a federal action.
Even absent complete preemption, however, the Act still allows for removal and preempts state law claims. The Act expressly permits removal of “public liability actions,” that is, any suit asserting liability “arising out of or resulting from a nuclear incident.”
As a result, the Act, as we have previously recognized, preempts state law claims asserting public liability arising from a nuclear incident. See Nieman, 108 F.3d at 1552–53. Accordingly, for claims arising from a nuclear incident, a plaintiff “can sue under the Price-Anderson Act, as amended, or not at all.” Id. at 1553. That is the rule, we note, both here and elsewhere. See, e.g., Cotroneo v. Shaw Env‘t & Infrastructure, Inc., 639 F.3d 186, 192 (5th Cir. 2011) (“[A] plaintiff who asserts any claim arising out of a ‘nuclear incident’ as defined in the [Price-Anderson Act] . . . ‘can sue under the [Act] or not at all.‘” (quoting Nieman, 108 F.3d at 1553)); In re Berg Litig., 293 F.3d 1127, 1132 (9th Cir. 2002)
C. In view of this statutory foundation, we are left to determine whether plaintiffs have asserted a public liability action (and, if so, their state law claims are removable and preempted). Answering that question requires us to “look beyond the labels” plaintiffs use in their complaint and instead examine “the substance of the allegations” to “determine the nature of the cause of action.” See Lee v. Ohio Educ. Ass‘n, 951 F.3d 386, 391 (6th Cir. 2020) (citations omitted).
Start, as we must, with the Act‘s text. The Act defines a “public liability action” as “any suit asserting public liability.”
Plaintiffs’ allegations fit comfortably within this definitional chain. To begin, plaintiffs (despite their contentions otherwise) have alleged a “nuclear incident.” Their complaint alleges that the plant expelled “radioactive materials,” including uranium, neptunium, and plutonium, as well as “other metals into the air, water, and soil” of the surrounding community. These are the types of substances that, when they harm persons or property, can give rise to a “nuclear incident.” See
Those injuries, moreover, according to plaintiffs’ allegations, resulted from an “occurrence,” as that term is used in the Act‘s definition of a “nuclear incident.” See
This conclusion comports with Nieman. Nieman claimed that the discharge of uranium from a nearby nuclear facility damaged his property. Nieman, 108 F.3d at 1547. In addition to asserting claims under the Price-Anderson Act, Nieman brought several state law claims. Id. He argued that the defendants, through release of uranium into the air and water, “created a trespass” on his property “that continues to this day and will continue into the foreseeable future.” Id. We held that his “state law claims [could not] stand as separate causes of action.” Id. at 1553. So too here. Plaintiffs allege several state law claims, including trespass. And as explained, those claims stem from a “nuclear incident,” and thus constitute a “public liability action.” As a result, the Act, as the district court correctly held, preempts plaintiffs’ claims. Id.
D. Plaintiffs resist this conclusion in several respects. First, they contend that this case should not be in federal court to begin with and should be remanded to state court. But as explained, the Act expressly authorizes the removal of claims asserting public liability “arising out of or resulting from a nuclear incident.”
Second, citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), and English v. Gen. Elec. Co., 496 U.S. 72 (1990), plaintiffs contend that the Act “does not preempt all state law claims” regarding “activity conducted by a nuclear facility operator.” Silkwood held that the Atomic Energy Act “occupied the entire field of nuclear safety concerns,” Silkwood, 464 U.S. at 249 (quoting Pac. Gas & Elec. Co., 461 U.S. at 212), but that Congress nonetheless “assumed that state-law remedies . . . were available to those injured by nuclear incidents,” id. at 256. From that latter observation, the Supreme Court went on to hold that the Atomic Energy Act did not preempt a state-authorized award of punitive damages arising from the expulsion of plutonium from a nuclear facility. Id. at 258. English, meanwhile, held that the Energy Reorganization Act did not preempt a state law claim for intentional infliction of emotional distress brought by a nuclear-fuels production facility employee who alleged she was retaliated against for complaining about facility safety issues. 496 U.S. at 85 (explaining that “not every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the pre-empted field“).
Third, plaintiffs attempt to distinguish Nieman. They characterize Nieman as involving a facility with a single leak on a single day, whereas this case, they say, involves a facility that has been “leaking toxic materials into the environment for decades.” And claims based upon “ongoing releases,” plaintiffs contend, are not subject to Price-Anderson preemption. According to plaintiffs, only injuries stemming from a singular “nuclear incident,” not those arising from multiple events, fit the statutory prerequisites.
We are not convinced. As an initial matter, it is debatable whether Nieman involved a singular event in that Nieman alleged a “continuing trespass” ten years after the leak, one that had “damaged and continued to damage his property.” Nieman, 108 F.3d at 1547–48. But more to the point, the Act‘s text does not limit the term “nuclear incident” to a single event. As explained above, the term “nuclear incident“—and the use of “any occurrence” in its definition—can fairly encompass multiple releases of radioactive material over time. A settled rule of statutory construction, moreover, instructs that “unless the context” of the Price-Anderson Act “indicates otherwise[,] words importing the singular include and apply to several persons, parties, or things.” See
We are not alone in that conclusion. Several of our sister circuits have held that the Act applies to claims of injury resulting from periodic releases of toxic materials. See Estate of Ware, 871 F.3d at 277, 281 (claim of a cancer researcher who allegedly developed a fatal tumor after exposure to radiation in his lab over 16 years); Acuna v. Brown & Root Inc., 200 F.3d 335, 337-40 (5th Cir. 2000) (claims of more than one thousand plaintiffs who either worked in uranium mines or processing plants and were exposed to radiation or uranium dust, or were exposed through contact with those workers or through environmental factors like wind and groundwater); Roberts, 146 F.3d at 1307–08 (claim of a nuclear plant worker who was allegedly exposed to radiation from 1966 to 1989). All things considered, we see no merit to the argument that claims regarding ongoing releases are exempted from the Act‘s preemptive scope.
Fourth, and in tandem with their argument that Nieman is not controlling here, plaintiffs urge us to follow the lead of then-Judge Gorsuch in his decision for the Tenth Circuit in Cook II. Setting aside the fact that Nieman is analogous and thus controlling, Cook II is distinguishable. The 25-year Cook II odyssey began when individuals brought claims under both the Act and state law against a nuclear weapons production facility. The plaintiffs secured a favorable jury verdict on both their federal
Cook II is a unique (and inapposite) case. There, the plaintiffs accepted after Cook I that they could not prove a “nuclear incident” under the Act, a concession the defendants did not dispute. See Cook II, 790 F.3d at 1091 & n.1 (noting that the defendants “surely would be judicially estopped” in the second appeal from arguing that the plaintiffs’ claims arose from a nuclear incident after previously arguing that the plaintiffs could not prove a nuclear incident had occurred). But here, defendants argue that plaintiffs’ claims do stem from a nuclear incident, meaning they are preempted. See Nieman, 108 F.3d at 1553. In other words, unlike in Cook II, where the Act‘s preemptive scope over a “nuclear incident” was a “beside-the-point point,” here it is the entire point. See Cook II, 790 F.3d at 1098 (noting that “no one dispute[d]” that the Act was “the exclusive means of compensating victims for any and all claims arising out of nuclear incidents” (quoting In re Hanford Nuclear Rsrv. Litig., 534 F.3d 986, 1009 (9th Cir. 2008) (as amended))); see also Dailey v. Bridgeton Landfill, LLC, 299 F. Supp. 3d 1090, 1097–98 (E.D. Mo. 2017) (distinguishing Cook II and holding that the Act “preempts state-law claims when a nuclear incident is alleged“).
Fifth, plaintiffs argue that their claims do not arise from a “nuclear incident” because there has been no public notification of such an incident. As plaintiffs emphasize here, the Act defines “nuclear incident” with reference to an “occurrence,” yet the Act does not define “occurrence.” See
any event causing a discharge or dispersal of source, special nuclear, or byproduct material from its intended place of confinement in amounts offsite, or causing radiation levels offsite, which the Nuclear Regulatory Commission or the Secretary of Energy determines to be
substantial, and which the [Commission or Secretary] determines has resulted in or probably will result in substantial damages to persons offsite or property offsite.
See
This argument also lacks merit. Under the Act, the term “nuclear incident” is broader than and distinct from the term “extraordinary nuclear occurrence.” See
Sixth, plaintiffs point to a separate federal case alleging that defendants intentionally released radioactive materials into the community. Seizing on those allegations, plaintiffs assert that the Act does not apply to purposeful releases of radioactive materials. Plaintiffs, however, failed to make this same argument at any point in the district court, including in their complaint. As a result, the allegation is not properly before us. See Bates v. Green Farms Condo. Ass‘n, 958 F.3d 470, 483 (6th Cir. 2020) (“Plaintiffs cannot . . . ask the court to consider new allegations (or evidence) not contained in the complaint.“); 600 Marshall Ent. Concepts, LLC v. City of Memphis, 705 F.3d 576, 585 (6th Cir. 2013) (“[T]he failure to present an issue to the district court forfeits the right to have the argument addressed on appeal.” (citation omitted)).
Seventh, plaintiffs object to the fact that, had they filed a claim under the Act and prevailed, defendants would be indemnified by the federal government. To plaintiffs’ minds, that outcome would be an unsound use of the federal treasury while, at the same time, would in essence let defendants off the hook for their alleged actions. Right or wrong, these policy arguments are better directed to Congress. As reflected in the Act‘s long statutory history, the legislative branch decided to utilize indemnification in the event of liability associated
Lastly, plaintiffs argue that Price-Anderson Act preemption violates the Fifth Amendment‘s Takings and Due Process Clauses. See
Plaintiffs’ argument is unpersuasive. Setting aside the fact that their primary authority is a concurring opinion, see PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 93–94 (1980) (Marshall, J., concurring) (suggesting “constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights” without providing a “reasonable alternative remedy“), we have previously held that the Act is an adequate alternative remedy to the claims it displaces, see Rainer v. Union Carbide Corp., 402 F.3d 608, 611, 624 (6th Cir. 2005). We reached that conclusion with a nod to “judicial restraint,” an important consideration where “Congress has provided what it considers adequate remedial mechanisms.” Id. at 623 (quoting Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)). As to that latter point in particular, the Act enables a plaintiff to recover for alleged injuries from nuclear incidents by filing a public liability action under the Act. See
* * * * *
Upon concluding that plaintiffs’ state law claims were preempted, the district court dismissed the action for failure to state a claim. In other cases involving similar claims, the plaintiffs have often brought a claim (or claims) under the Price-Anderson Act, either solely or in addition to other federal and state law claims. See, e.g., Nieman, 108 F.3d at 1547; McGlone v. Centrus Energy Corp., No. 2:19-cv-02196, 2020 WL 4431482, at *1 (S.D. Ohio July 31, 2020); Smith v. Carbide & Chems. Corp., No. 5:97-CV-3-M, 2009 WL 3007127, at *1 (W.D. Ky. Sept. 16, 2009). Here, however, plaintiffs have disclaimed reliance on the Act. In their complaint, they asserted that their “claims do not fall within the scope of the Price-Anderson Act.” Before the district court, they argued that their claims did “not factually meet the prerequisites of the [Act].” And on appeal, they have maintained that they “chose to pursue state law claims” and “have not made a claim under the [Act].” Because claims asserting liability
CONCLUSION
For the foregoing reasons, we affirm the district court‘s grant of defendants’ motion to dismiss and the court‘s dismissal of plaintiffs’ motion to remand as moot.