In re TMI Coordinated Proceedings, Civ. A. No. 88-1538.

• Decision Date: 16 March 1990
• Docket Number: Civ. A. No. 88-1538.
• Citation: 735 F. Supp. 640
• Parties: In re TMI COORDINATED PROCEEDINGS. This Memorandum Relates to All Actions Except CV-88-1676, CV-88-1677.
• Court: U.S. District Court — Middle District of Pennsylvania

735 F. Supp. 640

In re TMI COORDINATED PROCEEDINGS.

This Memorandum Relates to All Actions Except CV-88-1676, CV-88-1677.

Civ. A. No. 88-1538.

United States District Court, M.D. Pennsylvania.

March 16, 1990.

Lee C. Swartz, Sandra L. Meilton, Helpford, Swartz, Menaker & Morgan, Harrisburg, Pa., Arnold Levin, Laurence S. Berman, Levin, Fishbein, Sedran & Berman, Philadelphia, Pa., Dusan Bratic, Dillsburg, Pa., Louis M. Tarasi, Jr., Tarasi & Johnson, P.C., Pittsburgh, Pa., Gary A. DeVito, Arnold E. Cohen, Zarwin, Baum, Resnick & Cohen, P.C., Philadelphia, Pa., Terry S. Hyman, Angino & Rovner, P.C., Harrisburg, Pa., Patrick T. Sullivan, Harrisburg, Pa., for plaintiffs.

John G. Harkins, Jr., Alfred H. Wilcox, Ellen Kittredge Scott, Pepper, Hamilton & Scheetz, Philadelphia, Pa., Fred Speaker, Pepper, Hamilton & Scheetz, Suite 400, 10 S. Market Square, Harrisburg, Pa., for defendants.

James R. Adams, Barley Snyder Cooper & Barber, Lancaster, Pa., for plaintiffs in Nos. Cv-88-1551 and Cv-88-1553.

William E. Chillas, Lancaster, Pa., for plaintiffs in No. Cv-88-1551.

Joseph F. Roda, Lancaster, Pa., for plaintiffs in No. 88-1551.

Anne L. Weismann, Theodore C. Hirt, Dept. of Justice, Civil Div., Washington, D.C., James West, U.S. Atty., Scranton, Pa., William Kanter, Peter R. Maier, Dept. of Justice, Civil Div., Appellate Staff, Washington, D.C., for intervenor U.S.A.

Peter J. Neeson, LaBrum & Doak, Philadelphia, Pa., for Kichman plaintiffs.

Gregory Knight, Harrisburg, Pa., for Fay K. Nelms.

Joseph D. Shein, Philadelphia, Pa., for Perri Kiick.

William G. Dade, Fredericksburg, Va., Earl L. Harris, Harrisburg, Pa., for Prentiss White.

William B. Anstine, Jr., Anstine & Anstine, York, Pa., for Perri C. and Edward Kiick.

Richard P. Haaz, Reiff, Haaz & Associates, P.O., 1324 Walnut Street, Philadelphia, Pa., for Andrea Lewinter.

William Roberts Wilson, Jr., Pascagoula, Miss., for plaintiffs in Nos. Civ-88-1452 to Civ-88-1461.

MEMORANDUM

RAMBO, District Judge.

Before the court are defendants' motion to release removal bonds and plaintiffs' motion to remand. With respect to the motion to release removal bonds, ten of seventeen plaintiffs' attorneys expressed nonconcurrence, but none filed an opposition to the motion. The plaintiffs' motion to remand, on the other hand, is opposed fiercely by defendants. This court held oral argument on the motion, permitted the United States to intervene in the action because the constitutionality of an Act of Congress affecting the public interest is at issue, see 28 U.S.C. § 2403(a), and received supplemental briefing from the United States and the plaintiffs. Both motions are ripe for disposition.

Background

On August 20, 1988, the Price-Anderson Amendments Act of 1988 (the Act) was enacted. The Act amended the Price-Anderson Act, 42 U.S.C. § 2210, which was originally enacted in 1957 as an amendment to the Atomic Energy Act of 1954. The Price-Anderson Act has been amended previously three times — in 1965, 1966 and 1975. The most recent amendments embodied in the Act provide for, among other things, removal to federal court of claims arising from any "nuclear incident." The relevant statutory provision, as revised by the Act, reads:

With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place, or in the case of a nuclear incident taking place outside the United States, the United States District Court for the District of Columbia, shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon motion of the defendant or of the Commission or the Secretary, as appropriate, any such action pending in any State court (including any such action pending on the date of the enactment of the Price-Anderson Amendments Act of 1988) enacted Aug. 20, 1988 or United States district court shall be removed or transferred to the United States district court having venue under this subsection. Process of such district court shall be effective throughout the United States. In any action that is or becomes removable pursuant to this paragraph, a petition for removal shall be filed within the period provided in section 1446 of Title 28, United States Code, or within the 30-day period beginning on the date of the enactment of the Price-Anderson Amendments Act of 1988 enacted Aug. 20, 1988, whichever occurs later.

42 U.S.C.S. § 2210(n)(2) (Law.Co-op.Supp. 1989). The Act also adds a definition for "public liability action." 42 U.S.C.S. § 2014(hh) (Law.Co-op.Supp.1989). That definition section also contains the provision which is at the heart of this most recent battle among the parties. That provision reads:

A public liability action shall be deemed to be an action arising under section 170, and the substantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section.

Id.

Within the thirty day period permitted, the defendants removed to this court most of the claims stemming from the 1979 accident at TMI. These claims are predominantly personal injury claims that were pending in the Court of Common Pleas in Dauphin County, Pennsylvania and in the Circuit Court of Jackson County, Mississippi. Additionally, there are two cases involving multiple plaintiffs alleging a loss in tourist business as a result of the 1979 TMI accident and a few cases that were pending in Lancaster, York, and Adams counties. Also removed were cases pending before the Pennsylvania Superior Court, which the Dauphin County Court of Common Pleas had dismissed on summary judgment. Also consolidated in these proceedings are two cases originally filed in the United States District Court for the Southern District of Mississippi. These two cases, however, are not covered by the scope of this memorandum.¹

The plaintiffs filed their motion to remand contending first that Congress exceeded the scope of article III, section 2 of the United States Constitution (article III) by granting federal courts subject matter jurisdiction over the cases at bar through the Act. Plaintiffs also contend that the doctrines of separation of powers and federalism are violated by retrospectively divesting state courts of jurisdiction of long-pending cases, that plaintiffs' due process rights are violated by allowing removal of cases they had properly filed and which had been pending in state court, and that equal protection is violated because the Act increases the compensation fund for similar cases to be filed in the future but does not increase that fund for pending cases. Defendants argue that the only questions ripe for resolution at this time are whether the Act's grant of jurisdiction violates article III and, if not, whether the retrospective grant of jurisdiction is proper. Nonetheless, defendants and the United States addressed plaintiffs' other arguments in their briefs. Of course, both the defendants and the United States take the position that the Act's grant of jurisdiction is appropriate in all respects.

Defendants subsequently filed their motion to release removal bonds. The court first will address the motion to release removal bonds and then will consider to the motion to remand.

Discussion

A. Defendants' motion to release removal bonds

Defendants' motion to release removal bonds is based on the latest changes made to Sections 1446 and 1447 of Title 28 of the United States Code by the Judicial Improvements and Access to Justice Act, (the Improvements Act), Pub.L. No. 100-702, 102 Stat. 4642 (1988). The Improvements Act, which went into effect after defendants' removal petitions and required bonds had been filed in these cases, eliminated the requirement that a bond accompany a removal petition and added a provision enabling courts to impose attorney fees as part of costs in conjunction with a remand. As noted above, only seven of seventeen attorneys for plaintiffs concurred in the motion but no briefs opposing the motion were filed. Therefore, the court deems the motion to be unopposed by the ten plaintiffs' attorneys who failed to file a brief. See Rule 401.6, Rules of Court for the United States District Court for the Middle District of Pennsylvania.

Even if the motion to release the removal bonds had been opposed properly, this court would be compelled to grant the motion. In Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir.1989), the Third Circuit encountered a similar situation in connection with another revision under the Improvements Act which had the effect of changing the law pertaining to removal while the case was pending. The court referred to Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1973), in which "the Supreme Court held that `even where the intervening law does not explicitly recite that it is to be applied in pending cases, it is to be given recognition and effect.'" Air-Shields, Inc., 891 F.2d at 65 (quoting Bradley, 416 U.S. at 715, 94 S.Ct. at 2018) (citing Thorpe v. Housing Auth., 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969)). The Third Circuit held that "the district court was obligated to proceed under the recently amended, rather than the 1982 version of the law." Id. In accordance with Bradley and Air-Shields, Inc., this court finds that the Improvements Act's elimination of the bond requirement necessitates granting defendants' motion to release the removal bonds.

B. Plaintiffs' motion to remand

The issue at the heart of plaintiffs' motion to remand is whether Congress exceeded the scope of article III by granting federal courts subject matter jurisdiction over the cases specified in the Act, i.e., public liability actions. Of course, the other issues raised by the parties need only be addressed if this court finds Congress did not exceed the scope...