9th Circ. Allows Sailors’ $1B Fukushima Suit To Proceed

Law360, New York (June 22, 2017, 3:25 PM EDT) — The Ninth Circuit on Thursday upheld a lower court’s decision to allow sailors to pursue their $1 billion lawsuit against Tokyo Electric Power Co. over radiation injuries they allegedly suffered during their response to the 2011 Fukushima nuclear disaster.

TEPCO had sought to dismiss the suit on the grounds that U.S. courts lack jurisdiction. A lower court declined to grant that motion, and on appeal, the Ninth Circuit sided with that judge, beginning with TEPCO’s theory that the suit is blocked by the 1997 Convention on Supplementary Compensation for Nuclear Damage — an effort to establish an international liability framework for nuclear accidents.

The unanimous panel said the Convention’s provision that limits jurisdiction over nuclear accidents to the country in which it occurs only applies to claims arising after the Convention’s entry into force, which was April 2015. The sailors’ lawsuit was filed in December 2012. The panel paid particular attention to the portion of the Convention that gives exclusive jurisdiction to “the courts of the contracting party within which the nuclear incident occurs.”

“The use of the present tense suggests that the provision applies to future nuclear incidents and does not include past incidents,” the panel said. “One would expect the drafters to have used the past tense had they intended to alter jurisdiction over claims arising out of nuclear incidents that occurred before the CSC’s entry into force.”

TEPCO had also argued federal courts lack jurisdiction over the case because of the international comity doctrine, which allows a court to dismiss a case when another country has a strong interest in handling the claims and can adequately do so.

The panel noted that the Fukushima incident did happen in Japan, giving that country “a strong interest” in the litigation. But it also acknowledged that the plaintiffs are U.S. service members, giving this country a strong interest in the case as well. The government of Japan and the U.S. filed briefs on the question, both asserting their own country was the proper legal venue. Ultimately the panel was swayed by the U.S.’ argument that “allowing the suit to continue in California is consistent with U.S. interests in promoting the CSC.”

“In hopes that other countries would do the same, the United States [prior to the Convention] may have preferred that U.S. courts not exercise jurisdiction over claims arising out of foreign nuclear incidents. But that policy appears to have changed,” the panel said. “Now that the United States has ratified the CSC, the State Department takes the position that it would prefer to keep exclusive jurisdiction as a bargaining chip to encourage other nations to join the CSC. We owe this view deference.”

The panel also rejected TEPCO’s argument that the case does not belong in the U.S. under the doctrine of forum non conveniens, which allows a court to dismiss a case when it would be more conveniently handled in a foreign forum.

“In this case, plaintiffs are U.S. citizens, and their decision to sue in the United States must be respected. The district court properly took plaintiffs’ choice of their home forum into consideration and did not abuse its discretion in finding that other private and public considerations did not outweigh plaintiffs’ interest in suing at home,” the panel said.

Finally, the panel rejected TEPCO’s argument that the plaintiffs’ claims are nonjusticiable under the “political question” doctrine — which holds that the court cannot rule on fundamentally political questions.

But the panel left open the possibility that either the international comity doctrine or the political question doctrine could be used as a reason to dismiss the sailors’ lawsuit once the case progresses and more facts come to light.

U.S. District Judge Janis L. Sammartino in October 2014 granted TEPCO’s motion to dismiss the plaintiffs’ strict liability and design defect claims, but denied TEPCO’s motion to dismiss for lack of subject matter jurisdiction.

Judges A. Wallace Tashima, Kim McLane Wardlaw and Jay S. Bybee sat on the panel.

The sailors are represented by Charles A. Bonner, Adam Cabral Bonner and Paul C. Garner of the Law Offices of Bonner & Bonner and John R. Edwards and Catharine E. Edwards of Edwards Kirby.

TEPCO is represented by Daniel P. Collins, Bryan H. Heckenlively and Gregory P. Stone of Munger Tolles & Olson LLP.

The government is represented by Benjamin C. Mizer, Laura E. Duffy, Douglas N. Letter, Sharon Swingle and Dana Kaersvang of the U.S. Department of Justice; Brian J. Egan of the U.S. Department of State; and Jennifer M. O’Connor of the U.S. Department of Defense.

GE is represented by Michael D. Schissel, John B. Bellinger III, Lisa S. Blatt, David J. Weiner, Elisabeth S. Theodore and Sally L. Pei of Arnold & Porter Kaye Scholer LLP.

The case is Lindsay R. Cooper et al. v. Tokyo Electric Power Co. Inc., case number 15-56424, in the U.S. Court of Appeals for the Ninth Circuit.

https://www.law360.com/california/articles/937440/9th-circ-allows-sailors-1b-fukushima-suit-to-proceed