Cooper v. Tokyo Elec. Power Co.

Citation860 F.3d 1193
Decision Date22 June 2017
Docket NumberNo. 15-56424,15-56424
Parties Lindsay R. COOPER; James R. Sutton ; Kim Gieseking; Charles A. Yarris; Robert M. Miller; Christopher G. Bittner; Eric Membrila; Judy Goodwin ; Jennifer L. Micke; John W. Seelbach; Maurice D. Enis; Jaime L. Plym; Nathan J. Piekutowski; Carolyn A. White; Louie Viernes; Michael L. Sebourn; K.S., an infant by his father and natural guardian Michael L. Sebourn; Christian M. Ebueng; Paul J. Encinias; Daniel E. Hair; Adam W. Krutzler; David K. Malone; Robert Seligman; Eloi A. Whiteman; Jason D. Henry; Nellie Allen-Logan; Jami Beschorner; Nathan Canche; Nathan Criswell; Jason Troy Friel; Oscar Gonzalez; David Hahn; James Jackson; Jarrett Brady Johnston; Jonathan Medina; Adam Mintz; Mallory K. Morrow; William Netherton; Michelle Oden; Donald Rairigh; Christopher Rickard ; Andrew Rivera ; Steven Ray Simmons; Akeem Smith; Justin Spencer ; Alan Spurling; Angel Torres; John & Jane Does 1–70,000; Anthony Garcia; Jasmine Allen; Rhonda Anbert; Susan Ash ; Adam Armenta; Jinky M.A., individually and as the Administrator of the Estate of Charliemagne T.A.; J.C.A., a minor by his mother as guardian ad litem Jinky M.A.; J.A., a minor by his mother as guardian ad litem Jinky M.A.; Dana Austin; Renar Awa; Josh Bane; Aramis Barrios; Trevor Beck; Markus Begay; Jordan Benoit; Jordan Bettencourt; Brett A. Bingham; Gunnar Borthick; Kenneth Cleo Boswell; James P. Bowen; Matthew Bradley; Nicolas Brewton; Nicolaus Brooks; Ryan S. Brown; Casey Brucklacher; Rebecca Brunet; Gerardo Bruing; Robin Calcaterra; Robby Canlas; Carlisi; Courtney Carmichael; Matthew Cartwright; Wayne Cassar; Fabian Cervantes; Melvin A. Chamberlain; Terance Chapman; William Chapman, Jr.; Annmarie Chessari; David Chitwood ; George Cobb ; Lori Lynn Cody; Keondice W. Cook; Angela Crabtree ; Chad Croft; Brian Cross ; Nicolas Crouch; Thomas Culberson; Vicent Curci; Honda Dagan; James Darnell; Janelle Darnell; Jason Dasilva; John Davis; Mark Decasa; Nichole M. Decatur; Martin Delgardillo; Tina Dibernardo; Brandon Dockery; J.D., a minor by his father as guardian ad litem Jeremy D.; Jeremy D.; Christian Doerr; Ian W. Dove, Plaintiffs-Appellees, v. TOKYO ELECTRIC POWER COMPANY, INC., aka TEPCO, Defendant-Appellant, Solicitor General of the United States of America, Real Party in Interest.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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.

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

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 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.

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, 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 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...

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19 cases
  • Bartel v. Tokyo Elec. Power Co., Case Nos.: 18-CV-537 JLS (JLB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • March 4, 2019
    ...court has yet to undergo a choice-of-law analysis" and it is yet to be determined "what body of law applies." Cooper v. Tokyo Elec. Power Co. , 860 F.3d 1193, 1215 (9th Cir. 2017). Further, the issue regarding the applicability of the Compensation Act was not before the Ninth Circuit.7 The ......
  • Am. K-9 Detection Servs., LLC v. Freeman, 15–0932
    • United States
    • Supreme Court of Texas
    • June 29, 2018
    ...court must satisfy itself that [a] political question will certainly and inextricably present itself.").8 See Cooper v. Tokyo Elec. Power Co. , 860 F.3d 1193, 1215 (9th Cir. 2017) (framing the issue as whether the claims or causation defense "would actually require the court to review the w......
  • Douglass v. Nippon Yusen Kabushiki Kaish
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • June 4, 2020
    ...courts.76 Plaintiffs also rely on Cooper v. Tokyo Elec. Power Co., Inc. , 166 F. Supp. 3d 1103, 1137 (S.D. Cal. 2015), aff'd, 860 F.3d 1193 (9th Cir. 2017). R. Doc. No. 22, at 11 n.41. However, the portion of the opinion quoted by plaintiffs addressed international comity, not personal juri......
  • Alcide v. Nippon Yusen Kabushiki Kaish
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • June 4, 2020
    ...courts.76 Plaintiffs also rely on Cooper v. Tokyo Elec. Power Co., Inc. , 166 F. Supp. 3d 1103, 1137 (S.D. Cal. 2015), aff'd, 860 F.3d 1193 (9th Cir. 2017). R. Doc. No. 22, at 11 n.41. However, the portion of the opinion quoted by plaintiffs addressed international comity, not personal juri......
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2 books & journal articles
  • DEFERRING TO FOREIGN COURTS.
    • United States
    • University of Pennsylvania Law Review Vol. 169 No. 8, August 2021
    • August 1, 2021
    ...1, 4 (D. Mass. 2019). More than 15,000 people died from the initial earthquake and tsunami. Cooper v. Tokyo Elec. Power Co. (Cooper III), 860 F.3d 1193, 1197 (9th Cir. 2017). The account that follows is drawn from the judicial decisions, which were themselves careful to note that they were ......
  • CATCH AND KILL JURISDICTION.
    • United States
    • Michigan Law Review Vol. 121 No. 2, November 2022
    • November 1, 2022
    ...IV.B (discussing delegation). (294.) See supra Section II.A. 1. (295.) See supra Section II.A.2. (296.) Cooper v. Tokyo Elec. Power Co., 860 F.3d 1193, 1199 (9th Cir. (297.) Brief for the United States in Support of Neither Party and in Support of Affirmance of the Order Below, Cooper v. To......

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