Cooper v. Tokyo Elec. Power Co.

• Decision Date: 26 November 2013
• Docket Number: Case No. 12CV3032 JLS (WMc).
• Citation: 990 F.Supp.2d 1035
• Court: U.S. District Court — Southern District of California
• Parties: Lindsay R. COOPER, et al., Plaintiffs, v. TOKYO ELECTRIC POWER COMPANY, INC., Defendant.

990 F.Supp.2d 1035

Lindsay R. COOPER, et al., Plaintiffs,

v.TOKYO ELECTRIC POWER COMPANY, INC., Defendant.

Case No. 12CV3032 JLS (WMc).

United States District Court, S.D. California.

Nov. 26, 2013.

Adam Cabral Bonner, Charles A. Bonner, Law Offices of Bonner & Bonner Sausalito, CA, Paul C. Garner, Carlsbad, CA, for Plaintiffs.

Daniel P. Collins, Gregory P. Stone, John B. Owens, Munger, Tolles & Olson LLP, Los Angeles, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS

JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Defendant Tokyo Electric Power Company, Inc.'s (“TEPCO”)'s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim or, in the Alternative, to Dismiss under the Doctrines of Forum Non Conveniens and International Comity. (Mot. to Dismiss, ECF No. 26). Also before the Court are the named plaintiffs' response in opposition, (Resp. in Opp'n, ECF No. 29), and TEPCO's reply in support, (Reply in Supp., ECF No. 43). The Court heard oral argument on November 20, 2013, and thereafter took the matter under submission. Having carefully considered the parties' arguments and the law, the Court GRANTS TEPCO's motion.

BACKGROUND

Plaintiffs are members of the U.S. military who allege that they were injured by radiation exposure when they were deployed near the Fukushima–Daichi Nuclear Power Plant (“FNPP”) in Japan in the aftermath of the disastrous earthquake and tsunami that struck that country on March 11, 2011. In their First Amended Complaint (“FAC”), Plaintiffs allege that they “were among the members of the U.S. Navy crews of the U.S.S. Ronald Reagan (CVN–76), with its home port in San Diego, California, or the crews of other vessels participating as part of the Reagan Strike Force, 7th Fleet, as well as land-based service personnel, and/or their dependents.” (FAC ¶ 1, ECF No. 21).

The theory of Plaintiffs' FAC is that TEPCO, which owns and operates the FNPP, “conspired and acted in concerned [with the Japanese Government] ... to create an illusory impression that the extent of the radiation that had leaked from the site of the FNPP was at levels that would not pose a threat” to human health and safety and “failed to alert public officials, including the U.S. Navy, the Plaintiffs, and the general public, to the danger of coming too close to the FNPP.” ( Id. at ¶¶ 70, 109). Plaintiffs claim the Navy relied on TEPCO's misrepresentations “as to the condition of [the] FNPP and its environs” in determining where to position the Reagan and its Carrier Strike Group 7 when they arrived off the coast of Japan on March 12, 2011. ( Id. at ¶¶ 56–57, 88).

Plaintiffs allege that the Navy failed to conduct “the kinds of research and testing that would have verified” the true radiation levels, and so remained too close to the FNPP until, “[o]n March 14, 2011, the U.S. 7th Fleet, other U.S. Navy personnel, and aircraft aboard the vessels were repositioned away from Japan's FNPP” after the Navy detected “contamination in the air and on the helicopters returning to the U.S.S. Ronald Reagan (CVN–76) from ferrying supplies to the land.” ( Id. at ¶¶ 1, 88). Plaintiffs further contend that, because the military commanders in charge of the relief efforts in Japan, dubbed “Operation Tomodachi,” received “incorrect information regarding the levels of radiation,” they “failed to instruct Plaintiffs ... to take necessary precautions to minimize the exposure to radiation.” ( Id. at ¶ 193).

Based on these allegations, Plaintiffs bring common-law claims for negligence, fraud, strict liability, nuisance, and intentional infliction of emotional distress. Plaintiffs seek recovery of compensatory damages, including the establishment of a $1 billion medical monitoring fund, as well as punitive damages and attorney's fees.

TEPCO now moves to dismiss Plaintiff's amended pleading, setting forth ten distinct jurisdictional and substantive grounds on which the complaint should be tossed out. (Mot. to Dismiss, ECF No. 26). As the Court concludes that this matter may be disposed of exclusively on jurisdictional grounds, the Court declines to address TEPCO's arguments regarding the substantive inadequacy or implausibility of Plaintiffs' claims, as well as TEPCO's request for dismissal pursuant to the doctrines of forum non conveniens and international comity.

LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that “may not grant relief absent a constitutional or valid statutory grant of jurisdiction” and are “presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” A–Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir.2003) (internal quotations omitted).

Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id.

ANALYSIS

TEPCO's principal argument for dismissal is that this Court lacks subject matter jurisdiction over this action because Plaintiffs' claims are nonjusticiable under the political question doctrine. (Mot. to Dismiss 9–17, ECF No. 26). TEPCO contends that adjudicating Plaintiffs' claims would require the Court to (1) scrutinize the U.S. military's discretionary decisionmaking during “Operation Tomodachi;” and, (2) determine whether the Government of Japan fully and adequately disclosed the risks of radiation exposure near the FNPP to the U.S. Government. ( Id.) The Court begins by articulating the basic contours of the political question doctrine and then considers each of TEPCO's arguments in turn.

1. Political Question Doctrine—General Principles

The political question doctrine “excludes from judicial review those controversies which revolve around policy choices ... constitutionally committed for resolution to the halls of Congress or the confines of the Executive branch.” Japan Whaling Ass'n v. Am. Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). “[D]isputes involving political questions lie outside of the Article III jurisdiction of federal courts.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir.2007) (citing cases). Like other doctrines of justiciability, such as standing, mootness, and ripeness, the political question doctrine is grounded in respect for the Constitution's separation of powers. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (“The nonjusticiability of a political question is primarily a function of the separation of powers.”).

In Baker v. Carr, the Supreme Court “outlined a familiar list of factors to be used in determining whether a dispute raises a non justiciable political question.” Carmichael v. Kellogg, Brown & Root Serv., Inc., 572 F.3d 1271, 1280 (11th Cir.2009) (citing 369 U.S. at 217, 82 S.Ct. 691). Under Baker, a case may be dismissed on political question grounds if one of the following characteristics is present:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id.

Determining whether a case involves a nonjusticiable political question requires a “discriminating inquiry into the precise facts and posture of the particular case,” Baker, 369 U.S. at 217, 82 S.Ct. 691, and an “evaluation of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action.” Id. at 211–12, 82 S.Ct. 691.

2. The Military's Discretionary Decisions Regarding Deployment of Personnel and Assets During “Operation Tomodachi”

TEPCO maintains that this action poses a nonjusticiable political question because, in order to adjudicate Plaintiffs' claims, this Court would be required to review “the factual basis and rationale for discretionary judgments made by military commanders” in the effort to supply humanitarian assistance to the Japan in the aftermath of the March 11, 2011 earthquake. (Mot. to Dismiss 12, ECF No. 69). According to TEPCO, examination of such matters is unavoidable because Plaintiffs' “theory of causation of injury” rests on the premise that TEPCO's alleged misstatements affected U.S. military commanders, leading them to deploy personnel near the FNPP without taking measures to minimize the risk of radiation exposure. ( Id.)

Relying on Lane v. Halliburton, 529 F.3d 548, 561 (5th Cir.2008), Plaintiffs respond that their claims may be fully adjudicated without probing the military's discretionary judgments. (Resp. in Opp'n 5, ECF No. 29). In Lane, the Fifth Circuit held that civilian truck drivers injured in Iraq could maintain a common law action for fraud and misrepresentation against their employer, a defense contractor, for utilizing “intentionally misleading and false ... recruiting materials” that “misrepresentedthe risks that prospective employees would face in Iraq.” 529 F.3d at 554–55. The political question doctrine did not bar Plaintiffs' claims...