Lujan v. Regents of University of California, 94-2051

• Citation: 69 F.3d 1511
• Decision Date: 08 November 1995
• Docket Number: No. 94-2051,94-2051
• Parties: 104 Ed. Law Rep. 992 Sonja LUJAN, as Personal Representative of the Estate of Kimberly Lujan, Deceased, Plaintiff-Appellant, v. REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1511

69 F.3d 1511

104 Ed. Law Rep. 992

Sonja LUJAN, as Personal Representative of the Estate of Kimberly Lujan, Deceased, Plaintiff-Appellant, v. REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant-Appellee.

No. 94-2051.

United States Court of Appeals Tenth Circuit.

Nov. 8, 1995.

Michael G. Elia, Albuquerque, New Mexico, for Plaintiff-Appellant.

Edward Robert Ricco (Bruce Hall and Jonathan W. Hewes with him on the brief) of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, for Defendant-Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and JENKINS, Senior District Judge. ^*

JENKINS, Senior District Judge.

The plaintiff brought this action to recover for the death of her daughter, allegedly as a result of exposure to radioactive and other hazardous substances released into the environment from the Los Alamos National Laboratory. The district court held that the plaintiff's state-law claims were subsumed into her so-called public liability claim under the federal Price-Anderson Act and that the plaintiff's public liability claim was untimely. We agree that the plaintiff's public liability claim was untimely. We further conclude that her independent state-law claims are barred by the Eleventh Amendment.

BACKGROUND

On September 15, 1985, twenty-one-year-old Kimberly Lujan died as the result of recurrent brain cancers, from which she had suffered since she was eighteen months old.

Over six years later, on December 9, 1991, Kimberly's mother, Sonja Lujan, filed this action on behalf of herself and Kimberly's estate alleging injuries and wrongful death from exposure to radioactive and other toxic substances released into the air, soil and water near the Los Alamos National Laboratory in Los Alamos, New Mexico. The laboratory has been researching, developing and testing nuclear weapons since 1943. The defendants, the Regents of the University of California, operate the laboratory under a contract with the United States Department of Energy (DOE). Sonja's complaint alleged various state-law tort claims as well as federal claims under the Price-Anderson Act as amended (Price-Anderson), see 42 U.S.C. Secs. 2014 and 2210 (1988 & Supp. V 1993), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Secs. 9601-75 (1988 & Supp. V 1993). The district court dismissed some of the state-law claims and the CERCLA claim for failure to state a claim for relief. The court also held that all Sonja's state-law claims premised on exposure to radioactive substances were preempted by Price-Anderson. Sonja has not appealed those rulings.

The district court then granted the Regents' motion for summary judgment on all of Sonja's remaining claims on behalf of Kimberly's estate on the grounds that those claims were barred by the statute of limitations. The district court first held that Sonja's state-law claims "have meaning only as 'elements' of the federal Price-Anderson Act claim and, even then, only if they are not inconsistent with" the act. Aplt.App. at 93. The district court then held that Sonja's Price-Anderson claim was barred by New Mexico's three-year statute of limitations for wrongful death actions. See N.M.Stat.Ann. Sec. 41-2-2 (Michie Repl.Pamph.1989). The court reasoned that Price-Anderson incorporates state law to the extent it is not inconsistent with the act and determined that New Mexico's wrongful death statute was not inconsistent with Price-Anderson. The New Mexico statute provides that a cause of action for wrongful death "accrues as of the date of death." Id. The district court concluded that New Mexico does not apply a discovery rule to wrongful death actions and that, because Sonja brought her representative claims more than three years after Kimberly's death, those claims were time-barred.

Sonja then dismissed without prejudice her individual claims and appealed the district court's ruling that her representative claims were barred by the statute of limitations.

DISCUSSION

We review the district court's grant of summary judgment de novo. E.g., Eaton v. Jarvis Prods. Corp., 965 F.2d 922, 925 (10th Cir.1992). In affirming a summary judgment, we are not limited to the district court's reasoning but may affirm on any ground that finds adequate support in the record. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 528 (10th Cir.1994).

Sonja's representative claims--the only claims involved in this appeal--fall into two categories: a federal claim under Price-Anderson and various state-law claims. Sonja does not dispute the district court's ruling that all her state-law claims premised on exposure to radioactive substances are preempted by Price-Anderson. Therefore, the only state-law claims at issue here are those based on exposure to substances to which Price-Anderson does not apply. We shall address each category in turn.

A. The Plaintiff's Price-Anderson Claim

The Price-Anderson Act was enacted in 1957 as an amendment to the Atomic Energy Act of 1954. See Pub.L. No. 85-256, 71 Stat. 576 (1957). ¹ As originally enacted, Price-Anderson had a dual purpose: "to protect the public and to encourage the development of the atomic energy industry." Pub.L. No. 85-256, Sec. 1, 71 Stat. at 576 (codified at 42 U.S.C. Sec. 2012(i)). It protected the public by "assur[ing] adequate public compensation in the case of a nuclear accident," and it encouraged private participation in the development of nuclear energy by limiting the liability of private industry for nuclear accidents. See S.Rep. No. 70, supra note 1, at 13, reprinted in 1988 U.S.C.C.A.N. at 1426.

The original Price-Anderson Act assured adequate compensation for the victims of nuclear accidents by authorizing the federal government to indemnify its licensees and contractors for any liability they might incur as a result of their activities, thus increasing the funds that might otherwise be available for compensating victims. See Pub.L. No. 85-256, Sec. 4, 71 Stat. at 576-77. However, absent an independent basis for federal jurisdiction, any action against a licensee or contractor had to be brought in state court and was governed by state substantive and procedural law. See Silkwood, 464 U.S. at 251-53, 104 S.Ct. at 623-24; Brannon, 940 F.2d at 857, and cases cited therein.

In 1966 Congress amended the Price-Anderson Act to provide extra protection for victims of certain major nuclear accidents, called "extraordinary nuclear occurrences" (ENOs). ² The 1966 amendments gave federal district courts original jurisdiction over "any public liability action arising out of or resulting from" an ENO, "without regard to the citizenship of any party or the amount in controversy" and provided for the removal of such actions brought in state court or the transfer of such actions brought in a federal district court where venue was improper. See Pub.L. No. 89-645, 80 Stat. at 892 (codified as amended at 42 U.S.C. Sec. 2210(n)(2)). The statute did not define "public liability action."

Under the 1966 amendments, the Commission was authorized to require contractors to waive certain defenses as a condition to being indemnified for any liability arising out of certain ENOs. Among the defenses contractors were required to waive was

any issue or defense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof, but in no event more than ten years after the date of the nuclear incident.

Id., 80 Stat. at 892 (codified as amended at 42 U.S.C. Sec. 2210(n)). ³ Although the statutory language appeared to make it discretionary with the Commission whether to require this limited waiver of any statute of limitations defense, Congress and the courts have construed the act and its amendments as establishing a statute of limitations, at least for actions arising out of an ENO. See S.Rep. No. 70, supra note 1, at 15, reprinted in 1988 U.S.C.C.A.N. at 1427 ("The 1966 renewal ... set a minimum statute of limitations ... for the filing of claims after an accident"); O'Conner, 13 F.3d at 1096 (the amendments to Price-Anderson dictate "the limitations period for a public liability cause of action"); Brannon, 940 F.2d at 854 (the amendments to Price-Anderson created a new federal cause of action and "set a limitations period to govern the newly-created cause of action"); O'Conner v. Commonwealth Edison Co., 770 F.Supp. 448, 455 (C.D.Ill.1991) (Price-Anderson "not only creates a cause of action" but "also provides a period of limitations for that cause of action"), aff'd, 13 F.3d 1090 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2711, 129 L.Ed.2d 838 (1994). But see Day v. NLO, Inc., 3 F.3d 153, 154 n. 1 (6th Cir.1993) (Price-Anderson "provides no statute of limitations"). The statute did not displace less restrictive state statutes of limitations. See S.Rep. No. 70, supra note 1, at 15, reprinted in 1988 U.S.C.C.A.N. at 1427.

In 1988 Congress amended Price-Anderson again. The 1988 amendments extended the federal district courts' jurisdiction over "public liability" actions to those arising out of any "nuclear incident," not just to those arising out of an ENO, and provided for their removal to federal court. See Pub.L. No. 100-408, Sec. 11(a), 102 Stat. at 1076 (codified at 42 U.S.C. Sec. 2210(n)(2)). The amendments also added a definition of "public liability action":

The term "public liability action" as used in section 170 [42 U.S.C. Sec. 2210] means any suit asserting public liability. ⁴ A public liability action shall be deemed to be an action arising under section 170, and the substantive rules for decision in such [an] 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.

Pub.L. No. 100-408, Sec. 11(b), 102 Stat. at 1076 (emphasis...