Building and Const. Dept. v. Rockwell Intern. Corp.
| Citation | 7 F.3d 1487 |
| Decision Date | 26 October 1993 |
| Docket Number | AFL-CIO,No. 91-1163,91-1163 |
| Parties | The BUILDING AND CONSTRUCTION DEPARTMENT;; The Colorado Building and Construction Trades Council; Patrick F. Kelly and Virgil A. Owen, individually, and as representatives of a class of all former employees of Rocky Flats Nuclear Weapons Plant, and John M. Amador, Jack D. Bloom, Roger Saxton, individually, and as representatives of a class of the members of The Colorado Building and Construction Trades Council, Plaintiffs-Appellants, v. ROCKWELL INTERNATIONAL CORPORATION, a Delaware corporation; and The Dow Chemical Company, a Delaware corporation, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Ronald Simon (Bruce H. DeBoskey and Steven W. Kelly, of Silver & DeBoskey, P.C., Denver, CO, Merrill Davidoff, Daniel Berger, Peter Nordberg, and Andrew Brenner, of Berger & Montague, P.C., Philadelphia, PA, and Stanley M. Chesley, Louise Roselle, and Paul DeMarco, of Waite, Schneider, Bayless & Chesley, Cincinnati, OH, with him on the briefs), of Connerton, Ray and Simon, Washington, DC, for plaintiffs-appellants.
David M. Bernick (Michael R. Power, of Kirkland & Ellis, Chicago, IL, Mark S. Lillie, of Kirkland & Ellis, Denver, CO, and Louis W. Pribila, Alfred E. Schretter, and Sydney Rooks, of The Dow Chemical Co., Midland, MI, on the brief), of Kirkland & Ellis, Chicago, IL, for defendant-appellee The Dow Chemical Co.
John D. Aldock (Joseph J. Bronesky, of Sherman & Howard, Denver, CO, and Franklin D. Kramer and Mark S. Raffman, of Shea & Gardner, Washington, DC, with him on the brief), of Shea & Gardner, Washington, DC, for defendant-appellee Rockwell Intern. Corp.
Bruce H. DeBoskey and Steven W. Kelly, of Silver & DeBoskey, P.C., Denver, CO, Stanley M. Chesley, of Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, OH, Merrill G. Davidoff, Daniel Berger and Peter Nordberg, of Berger & Montague, P.C., Philadelphia, PA, and Ronald Simon, of Connerton, Ray & Simon, Washington, DC, on the joint brief on mootness, for plaintiffs-appellants.
David M. Bernick, Mark S. Lillie and Lester C. Houtz, of Kirkland & Ellis, Joseph J. Bronesky and Christopher Lane, of Sherman & Howard, Denver, CO, and Franklin D. Kramer and Patrick M. Hanlon, of Shea & Gardner, Washington, DC, on the joint brief on mootness, for defendants-appellees.
Before MOORE and TACHA, Circuit Judges, and HUNTER, District Judge. *
Plaintiffs appeal the district court's grant of summary judgment dismissing their claims for medical monitoring brought under the Price-Anderson Act. The district court held that such claims were barred under the exclusivity provisions of the Colorado Workmen's Compensation Act. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court's grant of summary judgment for defendants.
This litigation has a long history. Plaintiffs are current and former employees ("employee plaintiffs") of the Rocky Flats Nuclear Weapons Plant in Golden, Colorado and two labor organizations ("union plaintiffs") some of whose members work at the Rocky Flats plant. 1 The gravamen of plaintiffs' complaint is that defendants Rockwell International Corporation ("Rockwell") and Dow Chemical Company ("Dow") engaged in misconduct at Rocky Flats which exposed employees to unsafe levels of radioactive and non-radioactive hazardous substances. As relief, plaintiffs seek the establishment of a court supervised fund to finance a program of medical monitoring for affected workers. 2
Plaintiffs brought suit under the Price-Anderson Act, 42 U.S.C. § 2210, which provides for federal jurisdiction over claims for damages against government contractors "arising out of or resulting from a nuclear incident." 42 U.S.C. § 2210(n)(2). Defendants moved to dismiss the action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Because defendants' motion considered matters not raised in the pleadings, however, the district court treated it as a motion for summary judgment. Applying Colorado substantive law as directed by the Price-Anderson Act 3, the district court granted summary judgment for defendants finding that the Colorado Workmen's Compensation Act barred plaintiffs' claim for medical monitoring. Plaintiffs appealed.
On appeal, this court determined that review of the district court's decision turned on an important question of Colorado law not yet addressed by the Supreme Court of Colorado and, on April 9, 1992, certified the following question to that court:
In a suit brought by employees of a nuclear facility who allegedly have been exposed to hazardous materials, does a claim for medical monitoring fall within the exclusive remedy provision of the Colorado Workmen's Compensation Act, Colo.Rev.Stat.Ann. §§ 8-42-102, 8-52-102?
While this question was pending before the Supreme Court of Colorado, Congress passed the National Defense Authorization Act for Fiscal Year 1993, Pub.L. No. 102-484, 106 Stat. 2315 (1992). This legislation directed the Department of Energy (DOE), in consultation with various other federal agencies, to establish a medical monitoring program for former and current workers at DOE facilities who are at increased health risk due to exposure to hazardous or radioactive substances. After apparently finding plaintiffs' suit moot in light of the National Defense Authorization Act, the Supreme Court of Colorado declined to answer the certified state law question thus leaving it open. It is in this light that we find the case back before this court.
We first review the question of whether plaintiffs' suit for medical monitoring is mooted by the National Defense Authorization Act for Fiscal Year 1993. Because it is a matter of federal jurisdiction, our review is de novo without regard to the Supreme Court of Colorado's determination on the mootness issue. We find that plaintiffs' suit is not moot.
Constitutional mootness doctrine is grounded in the Article III requirement that federal courts only decide "actual, ongoing cases or controversies." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). Litigation may become constitutionally moot even during the pendency of an appeal. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950). However, the conditions under which a suit will be found constitutionally moot are stringent. "Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). In elaborating on this principle, the Supreme Court has said that a case properly brought in the first instance only becomes moot where "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). See also 13A Charles A. Wright et al., Federal Practice and Procedure § 3533.1 at 220-21 (2d ed. 1984) ().
The test for constitutional mootness is not met in this case. The National Defense Authorization Act for Fiscal Year 1993, passed by Congress during the pendency of this appeal, includes the following provision codified at 42 U.S.C. § 7274i:
§ 7274i. Program to monitor department of energy workers exposed to hazardous and radioactive substances
(a) In general
The Secretary shall establish and carry out a program for the identification and on-going medical evaluation of current and former Department of Energy employees who are subject to significant health risks as a result of the exposure of such employees to hazardous or radioactive substances during such employment.
However, the section goes on only to provide for the barest outlines of such a program. It directs the Secretary of Energy in consultation with the Secretary of Health and Human Services and other officials to define the parameters of medical monitoring. It leaves open the essential questions of what hazardous substances will be covered, what level of exposure will be deemed significant, and what medical monitoring procedures will be provided. 42 U.S.C. § 7274i(b)(1)-(4). In sum, it is simply not clear that this program will address the concerns raised by plaintiffs in this suit. See Day v. NLO, Inc., 814 F.Supp. 646, 654 (S.D.Ohio 1993) (). Under such circumstances we cannot say that the issues presented in this case are no longer "live" or that the parties "lack a legally cognizable interest in the outcome." Powell, 395 U.S. at 496, 89 S.Ct. at 1951.
Defendants Rockwell and Dow nevertheless urge the court to find plaintiffs' claims moot under the doctrine of "remedial" or "prudential mootness." This doctrine holds that "[i]n some circumstances, a controversy not [constitutionally] moot, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant." Chamber of Commerce v. United States Dep't of Energy, 627 F.2d 289, 291 (D.C.Cir.1980); see also A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961); United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). This court expressly recognized the prudential mootness concept in New Mexico v. Goldschmidt, 629 F.2d 665, 669 (10th Cir.1980). However, to argue that prudential mootness is apposite to the suit at issue here is to misconstrue its application.
All the cases in which the prudential mootness concept has been applied have involved a ...
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