Americans seek $1 bil. in damages over Fukushima nuclear disaster

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A U.S. Marine assists Japanese Self-Defense Force members in removing debris from the grounds of Minato Elementary School in Ishinomaki, Miyagi Prefecture, in this file photo taken on April 1, 2011.
 
TOKYO (Kyodo) — Some 200 U.S. residents filed a suit against Tokyo Electric Power Company Holdings Inc. and a U.S. firm seeking at least $1 billion to cover medical expenses related to radiation exposure suffered during the 2011 Fukushima nuclear disaster, the utility said Monday.
 
The lawsuit was filed last Wednesday with U.S. federal courts in the Southern District of California and the District of Columbia by participants in the U.S. forces’ Operation Tomodachi relief effort carried out in the wake of the March 11, 2011, earthquake and tsunami that crippled TEPCO’s Fukushima Daiichi nuclear plant.
 
Many of the plaintiffs are suing TEPCO and the U.S. company, whose name was withheld by TEPCO, for the second time after a similar suit was rejected by the federal court in California in January.
 
They are seeking the establishment of a compensation fund of at least $1 billion to cover medical and other costs, the utility said.
 
The plaintiffs claim that the nuclear accident occurred due to improper design and management of the plant by TEPCO. They are also seeking compensation for physical and psychological damage suffered as a result of the disaster, said the utility.
In Operation Tomodachi, which began two days after the natural disasters, the aircraft carrier Ronald Reagan and other U.S. military resources and personnel were deployed to deliver supplies and undertake relief efforts at the same time as three reactors at the Fukushima Daiichi complex suffered fuel meltdowns.
 
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The Irradiated Sailors of the USS Reagan

Injustice At Sea: the Irradiated Sailors of the USS Reagan
by Linda Pentz Gunter

American sailors on the USS Ronald Reagan were exposed to radiation from Fukushima. Many are sick. Some have died. Why can’t they get justice?

 

 image.0jpg.jpgSailors scrub the flight deck aboard the aircraft carrier USS Ronald Reagan following a countermeasure wash down to decontaminate the flight deck while the ship is operating off the coast of Japan on March 23, 2011. The Reagan, along with 15 other ships that took part in the relief effort, still have some radiation contamination more than seven years later, the Navy says.

 

“Coverage of the USS Ronald Reagan has been astoundingly limited,” wrote Der Spiegel in a February 2015 story. Since then, nothing much has changed.

The German magazine was referring to the saga of the American Nimitz-class nuclear-powered aircraft carrier whose crew pitched in to help victims of the March 11, 2011 Tsunami and earthquake in Japan, then found themselves under the radioactive plume from the stricken coastal nuclear reactors at Fukushima. Since then, crew members in eye-popping numbers have come down with unexplained illnesses — more than 70 and still counting. Some have died. And many are suing.

The USS Reagan was part of Operation Tomodachi, a U.S. armed forces mission involving 24,000 U.S. service members, and numerous ships and aircraft bringing aid to the victims of the tsunami and earthquake.

On January 5, 2018, a federal judge in San Diego, CA, dismissed the latest version of a class action lawsuit brought by USS Reagan sailors and US Marines. This was just the latest milestone in a long and winding path to justice strewn with roadblocks and delays.

The original class action lawsuit — Cooper et al v. Tokyo Electric Power Company, Inc., was filed in San Diego, the home port of the USS Reagan, on December 21, 2012. A second class action suit — Bartel et al v. Tokyo Electric Power Company, Inc. et al — was subsequently filed on August  18, 2017 and was the case dismissed in January.

The plaintiffs are represented by California attorneys Charles Bonner and Paul Garner, and by Edwards Kirby, the North Carolina firm led by former U.S. Senator, John Edwards.

Cooper now has 236 named plaintiffs and Bartel 157. But, wrote attorney Cate Edwards of Edwards Kirby and daughter of John Edwards, in an email;

“We have about 34 additional plaintiffs who have contacted us since the filing of the Bartel complaint, and that number continues to grow on a weekly basis.” As a class action the suit also “encompasses additional, unnamed class members— up to 70,000 American servicemen and women who served in Operation Tomodachi and may have been exposed to the radiation from Fukushima,” Edwards wrote.

Sadly those numbers sometimes also decline. Nine of the plaintiffs have already died. It is unknown how many others who took part in Operation Tomodachi, but did not join the suit, may also have died.

The Bartel plaintiffs are requesting an award of $5 billion to compensate them for injuries, losses and future expenses associated with their exposure to radiation, as a result of what they allege is TEPCO & GE’s negligence.  The Cooper plaintiffs have asked for an award of $1 billion.

Bartel is an extension of Cooper, with different plaintiffs but virtually identical facts and claims. It had to be filed separately, explained Edwards, because at the time more sailors came forward, the Cooper suit was stuck in appeal.  Eventually, Edwards said, the lawyers hope to consolidate the two suits “for litigation on the merits.”

But almost seven years after the Fukushima disaster, those merits are yet to be heard, with the case mired in legal wrangling and delays brought by the defendants — TEPCO, along with General Electric, EBASCO, Toshiba and Hitachi, the builders and suppliers of the Fukushima nuclear reactors.

One such delay occurred when TEPCO and the Japanese government tried to force the case to be heard in Japan. But on June 22, 2017, the attorneys won in the US Court of Appeals for the Ninth Circuit and ensured the case would be heard in the U.S.

The plaintiffs charge that TEPCO lied to the public and the U.S. Navy about the radiation levels at the Fukushima-Daiichi nuclear power plant at the time the Japanese government was asking for help for victims of the earthquake and Tsunami. By doing so, TEPCO deliberately allowed those involved in Operation Tomodachi to sail into harm’s way and become exposed to the radiation spewing from the stricken reactors on the battered Japanese coast.

A floating pariah  

Whether or not U.S. military commanders knew of the radiation risks once the readings were in, is moot legally. The plaintiffs are barred from suing the U.S. Navy because of the Feres Doctrine, dating from the 1950s, and which prohibits any member of the military from recovering damages from the government for injuries sustained during active military service.

The USS Ronald Reagan arrived off the Japan coast before dawn on March 12, 2011 with a crew of 4,500. It had been on its way to South Korea but returned to join Operation Tomodachi.

But what actually happened to the Reagan after that is still clouded in confusion, or possibly cover-up. After it got doused in the radioactive plume, then drew in radioactively contaminated water through its desalination system — which the crew used for drinking, cooking and bathing — it turned into a pariah ship, just two and a half months into its aid mission.

Floating at sea, the USS Reagan was turned away by Japan, South Korea and Guam. For two and a half months it was the radioactive MS St. Louis, not welcome in any port until Thailand finally took the ship into harbor.

There is no disagreement that the radioactive plume from Fukushima — which largely blew out to sea rather onto land — passed over the Reagan. Radiation meters on board confirmed this. But the levels of exposure are disputed, as is how close the ship came to shore and the melting Fukushima reactors and how often it strayed into — or stayed within — the plume.

Some versions have the radiation readings on board at 30 times “normal,” other 300 times.  Official Navy reports say the ship stayed 100 nautical miles away from the Japan coast.

But some crew members dispute that, saying they were at times just two miles away from shore. In an interview with journalist Roger Witherspoon for his article in Truthout, Navy Quartermaster, Maurice Ennis described a “cat and mouse” game played by the ship to try to stay out of the plume.

“We stayed about 80 days, and we would stay as close as two miles offshore and then sail away,” he told Witherspoon. “We kept coming back because it was a matter of helping the people of Japan who needed help. But it would put us in a different dangerous area.”

How close the ship came to the Fukushima reactors specifically, as opposed to the Japanese shoreline, is also a matter of dispute. Until the plaintiffs’ lawyers can issue subpoenas, hopefully getting a look at the ship’s logs, it is an important question that remains unanswered.

Petty Officer 3rd Class Daniel Hair told Stars and Stripes that he was informed the Reagan came within “five to 10 miles off the coast from Fukushima.” Stars and Stripes also reported that “many sailors have disputed the Navy’s accounting, saying they were so close that they could see the plant.”

Ship’s personnel who flew missions to mainland Japan to aid the earthquake and Tsunami victims also risked exposure to the radiation from Fukushima. Their aircraft, like the ship’s decks, had to be decontaminated upon return. In fact, a total of 25 US ships involved in Operation Tomodachi were found to be contaminated with radiation.

In the June 22, 2017 opinion allowing the class action lawsuits to be heard in the U.S., Judge Jay S. Bybee observed of the anomaly about the ship’s location that:

TEPCO makes much of Plaintiffs’ allegations that the U.S.S. Ronald Reagan was initially positioned “two miles off the coast,” while the Navy had been warned to stay at least “50 miles outside of the radius. . . of the [FNPP].” Appellant’s Opening Brief 7. The SAC [Second Amended Complaint of plaintiffs] alleges, however, that the U.S.S. Ronald Reagan was situated so as to provide relief in the city of Sendai, which is located over fifty miles north of the FNPP. Thus, it is possible that the U.S.S. Ronald Reagan was at once two miles off the coast and fifty miles away from the FNPP. Although other portions of the SAC suggest that the U.S.S. Ronald Reagan was closer to the FNPP, where the U.S.S. Ronald Reagan was situated is unclear from the record before us, and further factual development is necessary to resolve this issue.

No worse than flying or eating a banana

At first, any concerns about radiation exposure were dismissed by military brass. Sailors were told the exposures were no worse than flying or eating a banana, according to Naval officer Angel Torres, one of the plaintiffs.

What they didn’t disclose was the very significant difference between eating a banana — during which the body ingests but also excretes identical amounts of radioactive potassium-40 to maintain a healthy balance — and exposure to nuclear accident fallout. Fukushima was leaking cesium, tritium and strontium as well as radioactive iodine which attacks the thyroid. For example, cesium, can bind to muscle, or strontium to bone, irradiating the person from within. This is a very different effect than the brief visit cosmic radiation pays to the body when we fly in an airplane.

There was also, according to former Department of Energy official, Robert Alvarez, now a senior scholar at the Institute for Policy Studies, a problem with the dose methodology.

Alvarez told Who.What.Why that “the only way to get an accurate internal and external dose on any individual is to take continual measurements throughout the time they are exposed. People must wear special monitoring equipment and undergo a regular regime of monitoring. This is especially important in trying to assess the health effects from a multiple meltdown situation with large explosions involving reactor cores, as occurred at Fukushima.”

Who.What.Why was created by long-time journalist, Russ Baker because, as he writes on the site, “the media gatekeepers, both ‘mainstream’ and ‘alternative,’ will not allow the biggest, most disturbing revelations to see the light of day.”

That is precisely the fate that appears to have befallen the undeniably disturbing USS Reagan story.

It has been touched on hardly at all by the mainstream media in the US although Jake Tapper delivered a 7-minute piece about it in February 2014 on CNN. Local television news stations have carried reports when a sailor from their area joined the law suit but rarely covered the bigger picture. An article in the New York Times two days into the disaster, chose to downplay and dismiss radiation concerns.

Aside from the legal trade publication, Courthouse News, most of the consistent coverage in the US has come, unsurprisingly, from the independent media. These include Counterpunch, Thom Hartmann’s The Big Picture on RT (now off the air), Mother Jones and a second piece in Truthout in addition to the Witherspoon article, and the work of anti-nuclear activist reporters, Harvey Wasserman’s Free Press and Libbe HalLevy’s Nuclear Hotseat podcast.

Epidemic of illnesses among sailors too strange to be a coincidence

The delay in getting accurate information, then having to contend with disinformation and official downplaying of the severity of the exposures has cost many of the sailors dearly. Treatment by specialists has often had to come out of their own pockets. Many cannot afford it. Some have paid with their lives.

The sicknesses range from the leukemias and cancers most often associated with radiation exposures, to immune system diseases, headaches, difficulty concentrating, thyroid problems, bloody noses, rectal and gynecological bleeding, weakness in sides of the body accompanied by the shrinking of muscle mass, memory loss, testicular cancer, problems with vision, high-pitch ringing in the ears and anxiety.

Attorney Edwards sees the epidemic of illnesses among the Reagan crew as just too pronounced to be unconnected to Fukushima-related radiation exposure.

“Why are all these young, healthy, fit people getting cancer? Experiencing thyroid issues? It’s too strange to be a coincidence,” she told Courthouse News.

“That just doesn’t happen absent some external cause,” Edwards added. “All of these people experienced the same thing and were exposed to radiation at Fukushima. A lot of this is just common sense.”

Common sense, of course, does not usually prevail in such cases. There are far more powerful forces at work. And, as always, the burden of proof falls upon the victims, not the most likely perpetrator.

The case is dismissed but the lawyers aren’t quitting

In her January 5, 2018 ruling in San Diego, federal judge Janis Sammartino sided with the defendant’s request for dismissal, stating that the plaintiffs had failed to establish that TEPCO’s actions were directed at California — a technicality. The judge also wrote that the plaintiffs “have provided no information to support an assertion that Tepco knew its actions would cause harm likely to be suffered in California.”

However, lawyers in the case plan to press on. “The Bartel case was dismissed without prejudice, which means that we are able to refile those claims,” Edward said in her email. “We plan to refile those claims in the coming weeks, and are still working on determining the best course for doing so.”

She told Courthouse News, that the team intends to “continue to fight for the justice these sailors deserve. We will also be moving forward with the Cooper case in due course, and look forward to reaching the merits in that case.”

Meanwhile, the sailors in the lawsuit still struggle to get either justice or media attention. Official sources who could shed more light on what actually happened, aren’t talking, including the ship’s captain, Thom Burke, who has never spoken out.

Lead plaintiff, Lindsay Cooper, has been told by Veterans Administration officials that her symptoms are likely due to “stress” and has denied her claim for disability based on radiation exposure, claiming there is not enough proof. Yet Cooper suffers from continuous menstrual cycles, and a yo-yoing thyroid that results in massive weight gain and then weight loss every few months. Her gallbladder was removed because it ceased to function.

When another plaintiff, Master Chief Petty Office Leticia Morales, had her thyroid taken out, she learned her doctor had already removed thyroid glands from six other sailors on the Reagan.

As lawyer Garner put it: “These kids were first responders. They went in happily doing a humanitarian mission, and they came out cooked.”

https://www.counterpunch.org/2018/03/07/injustice-at-sea-the-irradiated-sailors-of-the-uss-reagan/

 

Yet, the other ships that are part of a Carrier group. Never get mentioned.

16 US ships that aided in Operation Tomodachi still contaminated with radiation

March 13, 2016

CAMP FOSTER, Okinawa — Sixteen U.S. ships that participated in relief efforts after Japan’s nuclear disaster five years ago remain contaminated with low levels of radiation from the crippled Fukushima Dai-ichi nuclear power plant, top Navy officials told Stars and Stripes.

In all, 25 ships took part in Operation Tomadachi, the name given for the U.S. humanitarian aid operations after the magnitude-9.0 earthquake and subsequent tsunami on March 11, 2011. The tsunami, whose waves reached runup heights of 130 feet, crippled the Fukushima plant, causing a nuclear meltdown.

In the years since the crisis, the ships have undergone cleanup efforts, the Navy said, and 13 Navy and three Military Sealift Command vessels still have some signs of contamination, mostly to ventilation systems, main engines and generators.

“The low levels of radioactivity that remain are in normally inaccessible areas that are controlled in accordance with stringent procedures,” the Navy said in an email to Stars and Stripes. “Work in these areas occurs mainly during major maintenance availabilities and requires workers to follow strict safety procedures.”

All normally accessible spaces and equipment aboard the ships have been surveyed and decontaminated, Vice Adm. William Hilarides, commander of Naval Sea Systems Command, wrote to Stars and Stripes.

“The radioactive contamination found on the ships involved in Operation Tomodachi is at such low levels that it does not pose a health concern to the crews, their families, or maintenance personnel,” Hilarides said.

The largest U.S. ship to take part in the relief operation was the USS Ronald Reagan aircraft carrier, which normally carries a crew of more than 5,000 sailors. In 2014, three years after the disaster, the Reagan’s ventilation system was contaminated with 0.01 millirems of radiation per hour, according to the Navy. Nuclear Regulatory Commission guidelines advise no more than 2 millirems of radiation in one hour in any unrestricted area, and 100 millirems total in a calendar year from external and internal sources in unrestricted and controlled areas, so full-time exposure on the Reagan would be below that.

Plume of radiation

In the days after the tsunami hit the Fukushima complex, the plant suffered multiple explosions and reactors began to melt down.

Officials from the NRC told Congress that extremely high levels of radiation were being emitted from the impaired plant. Japanese nuclear experts said winds forced a radioactive plume out to sea, and efforts to keep fuel rods cool using sea water caused tons of radiated water to be dumped into the ocean.

The Reagan was dispatched to take part in relief efforts, arriving the next day. Navy officials say the Nimitz-class nuclear-powered supercarrier stayed at least 100 nautical miles away from the damaged plant, but many sailors have disputed the Navy’s accounting, saying they were so close that they could see the plant.

 

image1.jpgA U.S. Marine sprays the surface of an F/A-18C Hornet aboard the aircraft carrier USS Ronald Reagan during a countermeasure wash down on the flight deck in March 2011. The Reagan, along with 15 other ships that took part in the relief effort, still have some radiation contamination more than five years later, the Navy says. Sailors aboard the ships, however, are not in any danger.

 

The Navy has acknowledged that the Reagan passed through a plume of radiation. Navy images showed sailors with their faces covered, scrubbing the deck of the Reagan with soap and water as a precautionary measure afterward. The Reagan and sailors stayed off the coast of Japan for several weeks to aid their Japanese allies.

The multibillion-dollar ship, projected to last at least 50 years after its launch in 2001, then was taken offline for more than a year for “deep maintenance and modernization” at the Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Wash., according to Navy officials.

“Procedures were in place to survey, control and remove any low-level residual contamination,” the Navy said. “Personnel working on potentially contaminated systems were monitored with sensitive dosimeters, and no abnormal radiation exposures were identified.”

Upgrades and cleaning also took place at the ship’s next stop in San Diego.

Sailors who performed the work said it entailed entering spaces deep within the ship, testing for high levels of radiation, and if it was found, sanding, priming and painting the areas. They say there were given little to no protective gear, a claim that the Navy denies.

Of the 1,360 individuals aboard the Reagan who were monitored by the Navy following the incident, more than 96 percent were found not to have detectable internal contamination, the Navy said. The highest measured dose was less than 10 percent of the average annual exposure to someone living in the United States.

Radiation effects unknown

Experts differ on the effects of radiation in general and, specifically, for those involved in Operation Tomodachi.

Eight Reagan sailors, claiming a host of medical conditions they say are related to radiation exposure, filed suit in 2012 against the nuclear plant’s operator, the Tokyo Electric Power Co. The suit asserts that TEPCO lied, coaxing the Navy closer to the plant even though it knew the situation was dire. General Electric, EBASCO, Toshiba Corp. and Hitachi were later added as defendants for allegations of faulty parts for the reactors.

A spokesman for TEPCO declined to comment for this story because of the sailors’ lawsuit, which was slated to go forward pending appeals in the U.S. 9th Circuit Court of Appeals.

The illnesses listed in the lawsuit include genetic immune system diseases, headaches, difficulty concentrating, thyroid problems, bloody noses, rectal and gynecological bleeding, weakness in sides of the body accompanied by the shrinking of muscle mass, memory loss, leukemia, testicular cancer, problems with vision, high-pitch ringing in the ears and anxiety.

The list of sailors who have joined the lawsuit, which is making its way through the courts, has grown to 370.

https://www.stripes.com/news/16-us-ships-that-aided-in-operation-tomodachi-still-contaminated-with-radiation-1.399094

Fukushima Radiation Case Doesn’t Belong in US. Any conflicts of interest there?

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Posted on 6th Jan 2018 by Shaun McGee aka arclight2011

On the unfortunate news that the court case for the US nuclear victims from the USS Ronald Reagan which was contaminated by a radioactive plume from the Fukushima Daichi nuclear disaster in 2011 has been rejected in the USA, I decided to look into the finances of the presiding judge (Judge Janis L Sammartino) who was overseeing the case in the courts on Friday 5 Jan 2018.

The latest financial disclosure I could find was from 2010;

screenshot-from-2018-01-06-105721.png

 

Source of screenshot; https://www.scribd.com/document/74646914/Janis-L-Sammartino-Financial-Disclosure-Report-for-Sammartino-Janis-L

Looking at the companies listed I decided to see if there was any connection to the nuclear industry with these companies. First I looked at MiTEK;

Apr 3, 2014 – MiTek Industries has acquired Ellis & Watts Global Industries, a designer and fabricator of HVAC products for nuclear and military customers. Chesterfield-based MiTek, a supplier of engineered products, software and equipment for the construction industry that’s owned by Berkshire Hathaway, said Batavia … http://www.stltoday.com/business/local/mitek-acquires-ohio-hvac-fabricator-ellis-watts/article_d94a3326-e9e2-5cef-893e-c92d064b6b8a.html

And the link to the company can be found here;

MiTek is comprised of more than 40 companies operating in nearly 100 countries globally, providing a broad array of products and services. Together, we deliver a powerful combination of engineered products and technologies to customers in the ever-evolving building industry. https://www.mii.com/Our-Business/

Secondly, I looked at Fiserv, an investment company and I found a link to Fiserv`s technology officer;

In 1999, Jim was asked to join GE as their first e-commerce attorney. Jack Welch had just announced that the “E in GE stands for E-commerce” and Jim thought that it would be a great challenge to participate in the “digital transformation” of the large multinational company. While at GE, he managed the legal and compliance aspects of over 500 “business digitization” projects, and took advantage of GE leadership and quality training courses. In 2003, with privacy issues becoming more prominent, Jim was named “Chief Privacy Leader” for GE, and led GE’s pioneering initiative to implement Binding Corporate Rules for the transfer of personal data from Europe, personally meeting with dozens of European data protection officials. Eventually, though, it became apparent that Jim would have to move his family away from Atlanta to continue with GE, and he began searching for opportunities closer to home.

In 2005, Atlanta’s CheckFree was looking for a Chief Privacy Officer and decided that Jim would be the perfect person for the role. In December 2007, CheckFree was acquired by Fiserv, Inc. and Jim became the Chief Privacy Officer of the combined organization. Among other duties, Jim provides privacy and regulatory compliance guidance for the Fiserv Enterprise Risk and Resilience program. Founded in 1984, Fiserv (NASDAQ: FISV ) is a leading global technology provider serving the financial services industry , with over 500 products and service offerings. Fiserv had 2012 revenue of $4.48 Billion, has over 20,000 employees, and has over 16,000 clients in 106 countries, including relationships with all 100 of the top 100 U.S. banking institutions.  http://www.atlantatrend.org/news/99-news-april-2013/611-atlanta-spotlight-jim-jordan

And TEVA pharamaceutical industries which makes resin for nuclear waste containers. This company is in the process of being bought out because of financial difficulties.

Nov 5, 2017 – JERUSALEM, Nov 5 (Reuters) – Billionaire businessman Len Blavatnik is looking to buy a significant stake in debt-ridden Israeli drugmaker Teva Pharmaceutical Industries, according to Israeli media reports. Two of Israel’s leading financial news outlets, Globes and The Marker, reported on Sunday that … https://www.reuters.com/article/teva-pharm-ind-ma/billionaire-blavatnik-weighs-big-share-purchase-in-teva-pharm-reports-idUSL5N1NB0AV

And it might be worth pointing out from a Guardian report on Len Blavatnik that this billionaire has some interesting buisness practises;

His charitable donations have been described as some of the most generous ever made in the UK, but unease about Sir Leonard Blavatnik’s philanthropy has grown after a leading political academic quit the University of Oxford. The Ukraine-born billionaire gave £75m to Oxford to …  https://www.theguardian.com/business/2017/sep/03/len-blavatnik-oligarch-controversy-philanthropy-resignation-oxford-professor

It would be interesting to get an updated version of Judge Sammatino`s financial disclosures to confirm these connections still exist or when she divested from these companies. I leave the links and extracts above for any discerning journalist researcher or blogger to look into.

Fukushima Radiation Case Doesn’t Belong in US. Any conflicts of interest there?

Tepco, GE Escape $5B Fukushima Radiation Suit

court 2Law360, New York (January 5, 2018, 7:17 PM EST) — A California federal judge on Friday dumped a $5 billion suit against Tokyo Electric Power Co. and General Electric Co. over alleged radiation risks to U.S. Navy members responding to the 2011 Fukushima nuclear disaster, saying her court lacked jurisdiction over the sailors’ claims.
 
More than 150 California-based U.S. Navy first responders claimed that Tepco knew there were problems at the Fukushima Daiichi Nuclear Power Station as soon as five hours after a March 11, 2011, earthquake and tsunami but didn’t warn the U.S. responders who came as part of the Operation Tomodachi mission to bring aid to disaster victims. But U.S. District Judge Janis L. Sammartino said her court can’t exercise personal jurisdiction over Tepco because its alleged actions aren’t sufficiently tied to California.
 
“Plaintiffs’ allegations that the effects of TEPCO’s conduct were felt by American citizens while on U.S. ships, one of which with a home port of San Diego, are too attenuated to establish purposeful direction,” Judge Sammartino said. “Plaintiffs have provided no information to support an assertion that TEPCO knew its actions would cause harm likely to be suffered in California.”
 
Even though Tepco did business in California between 2003 and 2006, that can’t tie the company to any negligence involving Fukushima alleged by the plaintiffs, the judge said.
 
“But for TEPCO’s activities in California that ended five years before the incident, would plaintiffs have suffered their alleged injuries after being deployed to Japan?” Judge Sammartino said. “If TEPCO had not done any business in California, would the [Fukushima plant] have released radiation after being struck by the tsunami? Plaintiffs have not demonstrated that the answer to these questions is yes, thus, the court finds plaintiffs have failed to satisfy this element of specific jurisdiction.”
 
Judge Sammartino also rejected the plaintiffs’ argument that her court had jurisdiction over Tepco under the federal long-arm statute. The plaintiffs have only made state law claims and have asserted diversity jurisdiction as the reason the court should hear the case, which means their claims don’t arise under federal law, the judge said.
 
As for GE, which the plaintiffs claimed negligently designed boiling water reactors that were on site at Fukushima, Judge Sammartino said there’s no evidence of any other plaintiffs outside California. The lack of complete diversity of plaintiffs means the federal court doesn’t have jurisdiction, the judge said.
 
The suit, filed in August, was at least the second such suit against Tepco and GE over the sailors’ Fukushima-related radiation exposure, court records show. An earlier suit, originally lodged in 2012 and amended in 2014, was filed on behalf of a proposed class of more than 70,000 U.S. citizens who were potentially exposed to the radiation.
 
The current case addresses issues outlined by 157 plaintiffs, including estates, spouses and children of personnel who have since passed away from what the suit claims are radiation-based illnesses.
 
Both suits were filed by a legal team that includes former North Carolina Sen. John Edwards and his daughter Cate Edwards, who is based in the Edwards Kirby firm’s San Diego office. 
 
The Ninth Circuit in June upheld a lower court’s decision to allow the sailors in the earlier action to pursue their $1 billion lawsuit, rejecting Tepco’s contention that U.S. courts lack jurisdiction over the claims, court records show.
 
Tepco had asserted in that appeal the 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 in June that 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,” according to the ruling.
 
That case is currently pending in Judge Sammartino’s court. In dismissing the current case Friday, the judge downplayed the plaintiffs’ argument that Tepco’s dismissal bid was “an exercise in futility” because they would simply be added to the earlier suit.
 
“Although it may be true that dismissing this action against TEPCO will complicate the two cases, this has no bearing on the issue of whether personal jurisdiction is proper,” Judge Sammartino said.
 
Representatives for the parties couldn’t be immediately reached for comment Friday.
 
The plaintiffs are represented by Charles A. Bonner and A. Cabral Bonner of Law Offices of Bonner & Bonner, John R. Edwards and Catharine E. Edwards of Edwards Kirby, and John C. Garner.
 
Tepco is represented by Gregory P. Stone, Daniel P. Collins, Hailyn J. Chen, Kyle W. Mach and Bryan H. Heckenlively of Munger Tolles & Olson LLP.
 
GE is represented by David J. Weiner, Sally L. Pei and Michael D. Schissel of Arnold & Porter Kaye Scholer LLP.
 
The case is Dustin Bartel et al. v. Tokyo Electric Power Co., case number 2:17-cv-01671, in the U.S. District Court for the Southern District of California.
 
–Additional reporting by Kat Greene and Juan Carlos Rodriguez. Editing by Emily Kokoll.
 

Judge: Sailors’ Fukushima Radiation Case Doesn’t Belong in US

 

SAN DIEGO (CN) – A federal judge on Friday dismissed without prejudice the latest class action filed by hundreds of U.S. sailors exposed to radiation in the Fukushima, Japan, nuclear disaster, finding a San Diego courtroom isn’t the right place for the case.

U.S. District Judge Janis Sammartino issued a 15-page order dismissing the class action against Tokyo Electric Power Co. (TepCo) and General Electric, finding the service members who were stationed aboard the USS Ronald Reagan in San Diego have failed to establish how the Japanese utility’s acts were directed at California.

“There is no targeting here. Plaintiffs’ allegations that the effects of TepCo’s conduct were felt by American citizens while on U.S. ships, one of which with a home port of San Diego, are too attenuated to establish purposeful direction,” Sammartino wrote.

Sammartino added the sailors “have provided no information to support an assertion that TepCo knew its actions would cause harm likely to be suffered in California.”

In an email, class attorney Cate Edwards said, “We appreciate the time and attention that Judge Sammartino gave our arguments. Per her order, we intend to refile the case on behalf of the Bartel Plaintiffs and continue to fight for the justice these sailors deserve. We will also be moving forward with the Cooper case in due course, and look forward to reaching the merits in that case.”

The judge’s order dismisses the most recent class action filed in San Diego Federal Court last August. It follows another class action filed by an initial group of sailors in 2012, a year after they were sent to render aid after the March 11, 2011 tsunami and earthquake which caused the Fukushima Daiichi nuclear plant to meltdown and release radiation. That case has survived dismissal and an appeal to the Ninth Circuit.

More than 420 U.S. service members in the two cases seek compensation and medical monitoring, testing and health care costs for exposure to radiation. Some sailors have died from complications of radiation exposure since the cases were filed, and more than 20 are living with cancer, according to the lawsuits.

In a court hearing Thursday, Sammartino considered the motions to dismiss from TepCo and GE. They argued California courts have no jurisdiction over events in Japan. Sammartino also considered a choice-of-law motion from General Electric, which wants to apply Japanese law to the case or have it transferred to Japan.

TepCo operated the Fukushima nuclear plant, and GE designed its reactors.

TepCo attorney Gregory Stone, with Munger, Tolles & Olson in Los Angeles, said at the Thursday hearing all claims brought in the United States could be brought in Japan and that the statute of limitations has not run out there.

GE attorney Michael Schissel, with Arnold & Porter in New York, also said the case belongs in Japan, where the facts originated and the witnesses are. Schissel said the Japanese government declared the nuclear meltdown was not a natural disaster, so TepCo could be held liable for damages.

But Edwards, of the firm Edwards Kirby in North Carolina, said it’s important to look at the situation “from altitude,” to see things from the sailors’ perspective.

“These are American sailors, American employees serving their country, who were sent on American ships on international waters at the request of the Japanese government … their ally, which owns the majority of stock in defendant TepCo,” Edwards said.

“Being on an American ship in international waters puts you on American soil.”

Edwards said that since the vast majority of the sailor-plaintiffs were stationed in San Diego and GE designed the nuclear reactors at its San Jose headquarters, the case belongs in California.

“They want the case in Japan because they know it goes away; that’s clearly their strategy,” Edwards said.

He added: “This case screams federal jurisdiction; this case screams United States of America. The underlying concept of this whole thing is fundamental and basic notions of fairness being met.”

Edwards’ co-counsel Charles Bonner, with Bonner & Bonner in Sausalito, said if the case were transferred to Japan, where GE could be dismissed as a defendant, GE could “continue building their defective reactors with impunity.”

Bonner added that California has a vested interest in applying its own laws, including strict liability for defective products, and punitive damages to deter companies from selling defective products. He pointed out that one-sixth of the U.S. Navy is based in San Diego, with 69 Navy ships in San Diego Harbor.

“(Japan’s) compensation act has not been applied to their own citizens, only businesses. Why should we speculate their compensation act will help our sailors? It will not,” Bonner said.

Stone countered that Bonner was “simply wrong” in claiming that the Japanese nuclear damage compensation act had not benefited individual Japanese citizens. He said it is the conduct of defendants TepCo and GE – which occurred in Japan – and not the plaintiffs’ place of residence that should determine jurisdiction over the case.

The sailors’ attorneys indicated Thursday if Sammartino dismissed the class action, they would seek leave to amend their first case, Cooper v. TepCo, to add additional plaintiffs who were dismissed from the second case, Bartel v. TepCo. The defendants are expected to oppose the motion.

Stone and Schissel did not immediately return phone and email requests for comment Friday.

https://www.courthousenews.com/sailors-fight-to-keep-fukushima-radiation-case-in-us/

Sailors Fight to Keep Fukushima Radiation Case in US

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SAN DIEGO (CN) – Former Senator John Edwards and his co-counsel on Thursday asked a federal judge not to transfer to Japan a class action by hundreds of U.S. sailors exposed to radiation in the Fukushima nuclear disaster.
An initial group of sailors sued Tokyo Electric Power Co. (TepCo) and General Electric in 2012. A second class action from sailors sent to render aid after the earthquake and tsunami was filed in San Diego Federal Court last August.
The March 11, 2011 tsunami caused the Fukushima Daiichi nuclear plant to shut down, but loss of circulation water coolant led to meltdowns and explosions whose radioactive releases may not be completely cleaned up for centuries.
More than 420 U.S. service members in the two cases seek compensation and medical monitoring, testing and health care costs for exposure to radiation. Some sailors have died from complications of radiation exposure since the cases were filed, and more than 20 are living with cancer, according to the lawsuits.
U.S. District Judge Janis Sammartino on Thursday considered motions to dismiss from TepCo and GE. They claim that California courts have no jurisdiction over events in Japan. Sammartino also considered a choice-of-law motion from General Electric, which wants to apply Japanese law to the case or have it transferred to Japan.
TepCo operated the Fukushima nuclear plant; GE designed its nuclear reactors.
TepCo attorney Gregory Stone, with Munger, Tolles & Olson in Los Angeles, said all claims brought in the United States could be brought in Japan and that the statute of limitations has not run out in Japan’s court system.
GE attorney Michael Schissel, with Arnold & Porter in New York, said the case belongs in Japan, where the facts originated and the witnesses are. Schissel said the Japanese government declared the nuclear meltdown was not a natural disaster, so TepCo could be held liable for damages.
But Edwards, whose firm Edwards Kirby is based in North Carolina, said it’s important to look at the situation “from altitude,” to see things from the sailors’ perspective.
“These are American sailors, American employees serving their country, who were sent on American ships on international waters at the request of the Japanese government … their ally, which owns the majority of stock in defendant TepCo,” Edwards said.
“Being on an American ship in international waters puts you on American soil.”
Edwards said that since the vast majority of the sailor-plaintiffs were stationed in San Diego and GE designed the nuclear reactors at its San Jose headquarters, the case belongs in California.
“They want the case in Japan because they know it goes away; that’s clearly their strategy,” Edwards said.
He added: “This case screams federal jurisdiction; this case screams United States of America. The underlying concept of this whole thing is fundamental and basic notions of fairness being met.”
Edwards’ co-counsel Charles Bonner, with Bonner & Bonner in Sausalito, said if the case were transferred to Japan, where GE could be dismissed as a defendant, GE could “continue building their defective reactors with impunity.”
Bonner added that California has a vested interest in applying its own laws, including strict liability for defective products, and punitive damages to deter companies from selling defective products. He pointed out that one-sixth of the U.S. Navy is based in San Diego, with 69 Navy ships in San Diego Harbor.
“(Japan’s) compensation act has not been applied to their own citizens, only businesses. Why should we speculate their compensation act will help our sailors? It will not,” Bonner said.
Stone countered that Bonner was “simply wrong” in claiming that the Japanese nuclear damage compensation act had not benefited individual Japanese citizens. He said it is the conduct of defendants TepCo and GE – which occurred in Japan – and not the plaintiffs’ place of residence that should determine jurisdiction over the case.
Sammartino indicated she will want further briefing from the attorneys before ruling on the motion to dismiss.

US Atomic Veterans Who Helped Out During Fukushima – Lawsuit Against TEPCO For Radiation Exposure (USS Ronald Reagan)

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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.

 

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(U.S. Navy photo by Mass Communication Specialist 3rd Class Kevin B. Gray/Released, via Flickr)

 

COOPER V. TOKYO ELECTRIC POWER, Page 4

Filed June 22, 2017

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

Opinion by Judge Bybee

SUMMARY *

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

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

COOPER V. TOKYO ELECTRIC POWER, Page 5

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 service members and, if so, whether it barred plaintiffs’ claims.

COOPER V. TOKYO ELECTRIC POWER 6

COUNSEL

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.

OPINION

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

COOPER V. TOKYO ELECTRIC POWER 7

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.

I. FACTS AND PROCEDURAL HISTORY

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.

1 We take the facts from Plaintiffs’ complaint and, for our purposes, we assume them to be true.

COOPER V. TOKYO ELECTRIC POWER 8

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,

COOPER V. TOKYO ELECTRIC POWER 9

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

COOPER V. TOKYO ELECTRIC POWER 10

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

2 The SAC contained ten causes of action, including claims for negligence, strict liability, nuisance, and intentional infliction of emotional distress. The district court granted TEPCO’s motion to dismiss with respect to Plaintiffs’ claims of design defect and intentional infliction of emotional distress but let the remaining eight causes of action proceed.

COOPER V. TOKYO ELECTRIC POWER 11

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

COOPER V. TOKYO ELECTRIC POWER 12

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

3 GE is a defendant in the district court but not a party to this appeal. Plaintiffs claim that GE is liable for defectively designing the FNPP’s reactors.

4 GE raised this argument in the district court, but the district court has yet to rule on it. Because TEPCO and GE’s argument questions our jurisdiction, we may consider it in the first instance on appeal. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004) (“The court has a continuing obligation to assess its own subject-matter jurisdiction . . . .”).

COOPER V. TOKYO ELECTRIC POWER 13

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

COOPER V. TOKYO ELECTRIC POWER 14

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.

COOPER V. TOKYO ELECTRIC POWER 15

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 “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” applies to cases pending before the CSC entered into force.

This is so, TEPCO and GE argue, because jurisdictional provisions are not subject to limits on retroactive application. In support of this contention, TEPCO and GE cite a long list of cases explaining that jurisdictional provisions do not retroactively alter substantive rights, but only alter where plaintiffs can go to obtain prospective relief. Accordingly,

5 Although the United States is not a party to the Vienna Convention on the Law of Treaties, it acknowledges the non-retroactivity principle as an element of customary international law. United States’ Brief 13 n.5, ECF No. 81; see Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir. 2008) (“The Department of State considers the Vienna Convention on the Law of Treaties an authoritative guide to current treaty law and practice.”).

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TEPCO and GE argue that jurisdiction-stripping provisions such as the one at issue here presumptively apply to pending cases. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994) (“We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. . . . Application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’” (citation omitted)); Bruner v. United States, 343 U.S. 112, 116–17 (1952) (“This rule—that, when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law—has been adhered to consistently by this Court.”); Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996) (“The Supreme Court has long held that ‘when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall within the law.’” (citation omitted)). TEPCO and GE also argue that the same principle applies to jurisdictional provisions in treaties. See, e.g., Third Report on the Law of Treaties, [1964] 2 Y.B. Int’l L. Comm’n 11, U.N. Doc. A/CN.4/167 (suggesting that certain jurisdictional provisions in treaties apply to any “dispute which exists between the parties after the coming into force of the treaty” regardless of whether “the dispute concerns events which took place prior to that date.”). In short, because the courts of Japan are undisputedly open to Plaintiffs, and because Article XIII makes no reservation as to pending cases, TEPCO and GE argue that the CSC strips us of jurisdiction over Plaintiffs’ claims.

We find this argument plausible, but ultimately unpersuasive. Although jurisdictional provisions can and often do apply to cases already pending when those provisions go into effect, it is not true that we always apply

COOPER V. TOKYO ELECTRIC POWER 17

new jurisdictional provisions to pending cases. Rather, we look at the jurisdiction-stripping provision in the context of the statute or treaty at issue, applying normal canons of construction, to determine if the provision should apply to pending cases. Hamdan v. Rumsfeld, 548 U.S. 557, 577 (2006) (“[Not] all jurisdiction-stripping provisions—or even all such provisions that truly lack retroactive effect—must apply to cases pending at the time of their enactment. ‘[N]ormal rules of construction,’ including a contextual reading of the statutory language, may dictate otherwise.” (second alteration in original) (citation omitted)); Lindh v. Murphy, 521 U.S. 320, 326 (1997) (“In determining whether a statute’s terms would produce a retroactive effect, however, and in determining a statute’s temporal reach generally, our normal rules of construction apply.”); see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180 (1982) (“The clear import of treaty language controls unless ‘application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.’” (citation omitted)).

Applying normal rules of construction to Article XIII, we do not believe that it strips U.S. courts of jurisdiction over claims arising out of nuclear incidents that occurred prior to the CSC’s entry into force. 6 Two things bring us to this

6 For purposes of this analysis, we will assume that Article XIII is self-executing. See Medellin v. Texas, 552 U.S. 491, 505–06 (2008) (explaining that a treaty “ordinarily ‘depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it,’” but that some treaties “contain[] stipulations which are self-executing, that is, . . . they have the force and effect of a legislative enactment” (citation omitted)); Letter of Submittal for the Convention on Supplementary Compensation for Nuclear Damage at XV, August 7, 2001, S. Treaty Doc. No. 107-21 (“As with similar jurisdictional provisions in earlier treaties submitted to the Senate for advice and consent to ratification, it is anticipated that the provisions of Article XIII would be applied without the need for further implementing legislation.”). Because we conclude that, in any event, Article XIII does not apply to claims arising out of the FNPP incident, we need not decide this issue.

COOPER V. TOKYO ELECTRIC POWER 18

conclusion. First, starting with Article XIII’s text, we find it informative that the CSC gives exclusive jurisdiction to “the courts of the Contracting Party within which the nuclear incident occurs.” CSC art. XIII(1) (emphasis added). The use of the present tense suggests that the provision applies to future nuclear incidents and does not include past incidents. 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. Other paragraphs within Article XIII also use the present tense, similarly indicating that Article XIII refers only to claims arising out of future nuclear incidents. See id. art. XIII(2) (“Where a nuclear incident occurs within the area of the exclusive economic zone of a Contracting Party[,] . . . jurisdiction over actions concerning nuclear damage from that nuclear incident shall, for the purposes of this Convention, lie only with the courts of that Party.” (emphasis added)); id. art. XIII(3) (“Where a nuclear incident does not occur within the territory of any Contracting Party[,] . . . jurisdiction over actions concerning nuclear damage from the nuclear incident shall lie only with the courts of the Installation State.” (emphasis added)). 7

7 TEPCO and GE counter that versions of the CSC in other languages, which are equally authentic, see CSC art. XXVII, use different verb tenses. The Spanish text, for example, uses the phrase “haya ocurrido.” “Haya” is the present subjunctive form of the Spanish verb “haber,” which in English means “to have.” As TEPCO and GE note, the phrase “haya ocurrido” means “has occurred.” In other words, the Spanish text grants jurisdiction to the courts of the country where the nuclear incident “has occurred,” not where it “occurs.” TEPCO and GE suggest that this difference precludes us from giving much weight to the English text’s use of the present tense.

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Second, the CSC’s overall framework also supports our conclusion that Article XIII does not apply to claims arising out of nuclear incidents that precede the CSC’s entry into force because we view the promise of exclusive jurisdiction as a quid pro quo for establishing a compensation fund. To accept TEPCO and GE’s argument that the CSC’s jurisdictional provision applies to the current case, we would have to view Article XIII as a stand-alone provision, independent of the CSC’s remaining provisions, to centralize jurisdiction over nuclear damage claims in a single country. We cannot fairly construe the CSC in this manner. Article XIII is but one component of the compensation scheme created in the CSC. The CSC’s title—The Convention on Supplementary Compensation for Nuclear Damage—suggests what the remainder of the document makes clear: the CSC is, first and foremost, concerned with creating an international backstop for funding claims by victims of nuclear incidents.

We think that TEPCO and GE’s reliance on the Spanish text is misplaced. The Spanish text’s use of the phrase “haya ocurrido”—a subjunctive form that conveys a mood of indeterminancy that has no direct English counterpart—does not necessarily suggest that the CSC’s jurisdictional provision encompasses pre-existing nuclear incidents. Even if the CSC used the past tense and limited jurisdiction to “the courts of the Contracting Party within which the nuclear incident occurred,” that would not answer the question at issue here. In that case, the use of the past tense only shows the temporal relationship between the nuclear accident and the lawsuit, the former obviously preceding the latter. But this wording leaves open the question whether the nuclear accident had to occur after the CSC’s entry into force for the provision to apply. Even if other languages make the answer to that question ambiguous, our second point above compels our conclusion that the CSC applies only to nuclear incidents occurring after the CSC’s entry into force.

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The “Purpose and Application” section reinforces that “[t]he purpose of this Convention is to supplement the system of compensation provided pursuant to” the Vienna and Paris Conventions and national laws such as the Price-Anderson Act. CSC art. II(1). To carry out its goal, the CSC creates what the CSC itself refers to as a “system,” id. art. II(2), or a “worldwide liability regime,” id., Preamble. Nothing in the CSC suggests that one component of that system, such as the jurisdictional provision at issue here, would apply when the entire system does not. The jurisdictional provision is not independent of the compensation scheme, but is part of the mechanism for effectuating that scheme.

Other provisions of the CSC confirm our reading that Article XIII is not an independent agreement to centralize litigation from a nuclear accident in a single country, but a mechanism for administering the supplemental compensation fund. A country whose courts have jurisdiction under Article XIII obtains certain rights and responsibilities. Specifically, “the Contracting party whose courts have jurisdiction shall inform the other Contracting Parties of a nuclear incident as soon as it appears that” domestic funds may be insufficient to compensate victims. Id. art. VI. Once domestic funds are exhausted, “the Contracting Party whose courts have jurisdiction shall request the other Contracting Parties to make available” the supplemental compensation fund, and “the Contracting Party whose courts have jurisdiction” has “exclusive competence to disburse such funds.” Id. art. VII(1); see also id. art. X(1) (“The system of disbursement by which the [supplemental funds] are to be made available and the system of apportionment thereof shall be that of the Contracting Party whose courts have jurisdiction.”). “The Contracting party whose courts have jurisdiction” may also exercise certain rights of recourse under the CSC. Id. art…..” Read the rest-download document here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/22/15-56424.pdf

Interviews and more here: http://nuclearhotseat.com/2017/06/28/fukushima-radiation-hit-uss-reagan-sailors-win-right-to-sue-tepco-in-usa-314/