In re Hanford Nuclear Reservation Litigation

• Decision Date: 14 August 2007
• Docket Number: No. 05-35648.,No. 05-35651.,No. 06-35165.,No. 05-35678.,No. 05-35866.,No. 05-35892.,No. 05-35895.,05-35648.,05-35651.,05-35678.,05-35866.,05-35892.,05-35895.,06-35165.
• Parties: In re HANFORD, NUCLEAR RESERVATION LITIGATION, Barbara Jean Phillips, Plaintiff, and Wanda Buckner; Shirley Carlisle, Plaintiffs-Appellants, v. E.I. DuPont De Nemours & Co., a Delaware Corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delaware corporation, Defendants-Appellees. In re Hanford Nuclear Reservation Litigation, Barbara Jean Phillips, Plaintiff, and Gloria Hope; Clara Reiss; Glenda Winslow; Kathryn J. Goldbloom, aka Kathryn Janelle Goldbloom, Plaintiffs-Appellants, v. E.I. DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delaware corporation, Defendants-Appellees. In re Hanford Nuclear Reservation Litigation, Barbara Jean Phillips, Plaintiff, and Gloria Hope; Clara Reiss; Glenda Winslow; Wanda Buckner; Kathryn J. Vancampen, aka Kathryn Janelle Goldbloom; Shirley Carlisle, Plaintiffs-Appellees, v. E.I. DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation, Defendants-Appellants, and UNC Nuclear Industries, Inc., a Delaware corporation, Defendant. Barbara Jean Phillips, Plaintiff, and Steven Stanton; Gloria Wise, Plaintiffs-Appellees, v. E.I. DuPont De Nemours & Co.; General Electric Co., Defendants-Appellants. Pamela Durfey; Paulene Echo Hawk; Dorothy George, on their own behalf and on behalf of a class of similarly situated persons, Plaintiffs-Appellants, v. E.I. DuPont De Nemours & Co., a Delaware Corporation; General Electric Co., a New York Corporation, UNC Nuclear Industries, Inc., a Delaware Corporation, Atlantic Richfield Company, Atlantic Richfield-Hanford Co., a Washington Corporation; Rockwell International Corp., a Delaware Corporation; Westinghouse Hanford Corp., a Delaware Corporation; Westinghouse Electric Corp., a Pennsylvania Corporation, Defendants-Appellees. In re Hanford Nuclear Reservation Litigation, Pamela Durfey; Pauline Echo Hawk; Dorothy George, on their own behalf and on behalf of a class of similarly situated persons, Plaintiffs-Appellants, v. E.L DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delware corporation; Atlantic Richfield Company; Atlantic Richfield-Hanford Co., a Washington corporation; Rockwell International Corp., a Deleware corporation; Westinghouse Hanford Corporation, a Delaware corporation; Westinghouse Electric Corp., a Pennsylvania corporation, Defendants-Appellees. In re Hanford Nuclear Reservation Litigation, Shannon C. Rhodes, Plaintiff-Appellant, v. E.I. DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

521 F.3d 1028

In re HANFORD, NUCLEAR RESERVATION LITIGATION,

Barbara Jean Phillips, Plaintiff, and Wanda Buckner; Shirley Carlisle, Plaintiffs-Appellants, v. E.I. DuPont De Nemours & Co., a Delaware Corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delaware corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Barbara Jean Phillips, Plaintiff, and Gloria Hope; Clara Reiss; Glenda Winslow; Kathryn J. Goldbloom, aka Kathryn Janelle Goldbloom, Plaintiffs-Appellants, v. E.I. DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delaware corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Barbara Jean Phillips, Plaintiff, and Gloria Hope; Clara Reiss; Glenda Winslow; Wanda Buckner; Kathryn J. Vancampen, aka Kathryn Janelle Goldbloom; Shirley Carlisle, Plaintiffs-Appellees, v. E.I. DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation, Defendants-Appellants, and UNC Nuclear Industries, Inc., a Delaware corporation, Defendant.

Barbara Jean Phillips, Plaintiff, and Steven Stanton; Gloria Wise, Plaintiffs-Appellees, v. E.I. DuPont De Nemours & Co.; General Electric Co., Defendants-Appellants.

Pamela Durfey; Paulene Echo Hawk; Dorothy George, on their own behalf and on behalf of a class of similarly situated persons, Plaintiffs-Appellants, v. E.I. DuPont De Nemours & Co., a Delaware Corporation; General Electric Co., a New York Corporation, UNC Nuclear Industries, Inc., a Delaware Corporation, Atlantic Richfield Company, Atlantic Richfield-Hanford Co., a Washington Corporation; Rockwell International Corp., a Delaware Corporation; Westinghouse Hanford Corp., a Delaware Corporation; Westinghouse Electric Corp., a Pennsylvania Corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Pamela Durfey; Pauline Echo Hawk; Dorothy George, on their own behalf and on behalf of a class of similarly situated persons, Plaintiffs-Appellants, v. E.L DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delware corporation; Atlantic Richfield Company; Atlantic Richfield-Hanford Co., a Washington corporation; Rockwell International Corp., a Deleware corporation; Westinghouse Hanford Corporation, a Delaware corporation; Westinghouse Electric Corp., a Pennsylvania corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Shannon C. Rhodes, Plaintiff-Appellant, v. E.I. DuPont De Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation, Defendants-Appellees.

No. 05-35648.

No. 05-35651.

No. 05-35678.

No. 05-35866.

No. 05-35892.

No. 05-35895.

No. 06-35165.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2007.

Filed August 14, 2007.

Amended April 4, 2008.

Peter Nordberg, Berger & Montague, P.C., Philadelphia, PA; Roy S. Haber, Roy S. Haber, P.C., Eugene, OR; Daniel Johnson and David Breskin, Short Cressman & Burgess, PLLC, Seattle, WA, for the plaintiffs-appellants-appellees.

Christopher Landau, Kirkland & Ellis, LLP, Washington, D.C., for the defendants-appellees-appellants.

Appeal from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. Nos. CV-91-03015-WFN, CV-93-03087-WFN.

Before: MARY M. SCHROEDER, ALFRED T. GOODWIN and MICHAEL DALY HAWKINS, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion in this matter filed on August 14, 2007, and published at In re Hanford Nuclear Reservation Litigation, 497 F.3d 1005 (9th Cir.2007), is amended as follows.

On slip op. 9798, 497 F.3d at 1014, delete the last two sentences of the first full paragraph and replace with the following:

We hold that any Hanford Plaintiffs who filed independent suits pending class certification are entitled to class action tolling.

On slip op. 9807, 497 F.3d at 1019, delete the last sentence of the first partial paragraph and substitute the following:

Congress did not have the benefit of any well-established common law principles relating to the government contractor defense when Congress drafted the relevant provisions of the PAA. The Supreme Court defined the defense only a few weeks before the PAA was signed into law.

Delete the last sentence of the first partial paragraph on slip op. 9808, 497 F.3d at 1020, and substitute the following:

We therefore conclude that the government contractor defense was not judicially well-established at the time Congress enacted the PAA.

Delete the first full paragraph on slip op. 9808, 497 F.3d at 1020, and substitute the following:

Because Congress did not enact the PAA against a backdrop of well-established common law principles that included the government contractor defense, we cannot grant immunity from liability.

Defendants argue that even if the doctrine was not judicially well-established, Congress passed the 1988 amendments to the Act with the defense in mind and intended that it apply. The defendants point to a provision in the PAA relating to underground detonation. The provision is 42 U.S.C. § 2210(d)(7), which states as follows:

A contractor with whom an agreement of indemnification has been executed under paragraph (1)(A) and who is engaged in activities connected with the underground detonation of a nuclear explosive device shall be liable, to the extent so indemnified under this subsection, for injuries or damage sustained as a result of such detonation in the same manner and to the same extent as would a private person acting as principal, and no immunity or defense founded in the Federal, State, or municipal character of the contractor or of the work to be performed under the "contract shall be effective to bar such liability.

Defendants contend the provision demonstrates that Congress intended to eliminate the modern government contractor defense for underground detonation and further contend that the provision demonstrates Congress intended the government contractors defense as we know it today to apply to all other claims arising out of nuclear incidents.

The language of § 2210(d)(7) is not clear. It refers to "immunity or defense" founded on the "character of the contractor or of the work." It thus appears to be referring to traditional sovereign immunity from any liability rather than the more sophisticated principles of accountability that underlie modern exceptions of governmental tort liability. See Federal Tort Claims Act, 28 U.S.C § 2680(a); Boyle, 487 U.S. at 512, 108 S.Ct. 2510.

Even assuming, however, that Congress intended to ensure that the modern defense did not apply to underground detonation claims, it does not follow that Congress also intended, without saying so, that the defense would apply in all other situations. Such a result would conflict with the Congressional statutory aim to provide compensation for nuclear injuries.

The defense is therefore inconsistent with Congressional purpose and the PAA preempts the defense for that reason as well. Congress drafted a precise, comprehensive litigation scheme for injuries sustained in a nuclear incident. The federal courts have recognized this Congressional intent. See O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099 (7th Cir.1994); In re TMI Litig. Cases, 940 F.2d 832, 854-55 (3d Cir.1991) ("In re TMI Litig."). That scheme governs the conduct of this litigations As the district court correctly concluded, "Congress has clearly spoken to the claims at issue in this case and its pronouncement, not a more general court-created common law defense[,] should govern the resolution of the claims." In re Hanford Nuclear Reservation Litig., No. 91-3015, 2004 WL 5372420, slip op. at 11 (E.D.Wash. Mar. 30, 2004).

Delete the last sentence of the first partial paragraph on slip op. 9820, 497 F.3d at 1026, the first partial paragraph on that page, the paragraph spanning slip op. 9820-21, 497 F.3d at 1026-27, and the first full paragraph on slip op. 9821, 497 F.3d at 1027. Substitute the following:

At the time this case was submitted for decision, the leading authority in this area was a district court opinion from the Southern District of New York. In re WorldCom, Inc. Sec. Litig., 294 F.Supp.2d 431, 451 (S.D.N.Y.2003). The Sixth Circuit agreed with the reasoning of WorldCom and held that American Pipe tolling is not available to a plaintiff who files a separate action pending class certification. Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 569 (6th Cir.2005). So did the other district courts that dealt with the issue. See, e.g., In re Heritage Bond Litig., 289 F.Supp.2d 1132, 1150 (C.D.Cal.2003); see also Wyser-Pratte Mgmt. Co., 413 F.3d at 569 (citing cases).

The Second Circuit, however, has vacated the district court decision in WorldCom. In re WorldCom Sec. Litig., 496 F.3d 245, 256 (2nd Cir.2007). The Second Circuit has now held that American Pipe tolling does apply to plaintiffs who file their actions before a decision on class certification. The Second Circuit explained that applying American Pipe tolling to plaintiffs who filed individual suits before certification is consistent with the purpose underlying statutes of limitations. Id. at 255. Statutes of limitations are intended to provide notice to defendants of a claim before the underlying evidence becomes stale. As the Supreme Court held in American Pipe, however, the filing of a timely class action provides defendants with notice of the claim, so a follow-on individual suit cannot surprise defendants. Id.

The Second Circuit also reasoned that although the American Pipe doctrine protects plaintiffs from being forced to file suit before the certification decision, that doesn't mean that plaintiffs who file before certification are not entitled to tolling. Id. at 256. They have a...