ML20198L129
| ML20198L129 | |
| Person / Time | |
|---|---|
| Issue date: | 12/16/1998 |
| From: | Cordes J NRC |
| To: | |
| References | |
| SECY-98-290, SECY-98-290-01, SECY-98-290-1, SECY-98-290-R, NUDOCS 9901040049 | |
| Download: ML20198L129 (36) | |
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ADJUDICATORY ISSUE (Information)
December 16, 1998 SECY-98-290 Egt:
The Commission From-John F. Cordes, Jr.
Solicitor L
ftMitifft-LITIGATION REPORT - 1998 - 5 Del Core v. Jackson. No. 3:98CV1011 (RNC) (D. Conn., decided Nov. 6,1998)
This lawsuit sought access to Millstone-related documents under the Freedom of information
' Act and money damages for the Commission's allegedly wrongful and unconstitutional denial of access to information. Working with the United States Attorney's office, we filed a motion for summary judgment seeking dismissal of the suit in its entirety. After oral argument, the district court (Chatigny, J.) ruled from the bench that plaintiff was entitled to no relief. The court entered a one-page order dismissing the suit. Plaintiff has sixty days to appeal.
CONTACT: Catherine M. Holzle 415-1560 Dolford v. United International Investiaative Service. Civ. No. AW-98-3984 (D. Md., removed Dec. 4,1998)
In this case, a group of ex-employees of our former security guard contractor filed suit in Maryland state court (Montgomery County) against the contractor and claimed that they were wrongfully fired. Their argument is that they lost theirjobs because of non-compliance with height / weight requirements that they consider unreasonable and violative of the federal
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Americans with Disabilities Act. The security guard contractor has filed a " third party" action
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against the NRC on the ground that the contractor was simply following NRC-required I
height / weight standards. The contractor seeks NRC indemnification for any liability to its ex-employees.
,NM We have removed the lawsuit from state court to federal court. We are working with the United States Attorney's office in developing our defense to the third-party action.
CONTACT: Grace H. Kim
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98-290 R PDR l
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2 Unte Cheh v. Jackson. No. AW 98:3610 (D. Md., filed Oct. 22,1998)
Plaintiff, an NRC employee, claims " disability discrimination,"" national origin and race discrimination," and " retaliation"in his conditions of employment at the NRC. He has brought suit under Title Vil of the Civil Rights Act of 1964 and under the Americans for Disabilities Act.
We are working with the United States Attorney's office in defending the case.
CONTACT: Marvin L. Itzkowitz 415-1566 El Paso Natural Gas Co. v. Neztsosie. No. 98-9 (Supreme Court, amicus curiae brief filed Dec. 8,1998)
This private lawsuit, not involving the government, seeks millions of dollars in tort damages in tribal court for exposure to radiation from uranium mining on Indian triballands. The defendant in the tribal court action, El Paso Natural Gas, sought a federai court injunction against tribal court proceedings on the ground that the federal Price-Anderson Act prescribes the exclusive means for obtaining damages for, among other things, the radioactive properties of source material. Both the federal district court and the court of appeals (Ninth Circuit) ruled that El Paso must first exhaust tribal court remedies before seeking federal court relief. Earlier this fall, the Supreme Court granted certiorari to consider the case.
Because the contours of both the tribcl exhaustion doctrine and the Price-Anderson Act are of considerable importance *o the government, the Solicitor General decided to file an amicus curiae brief in the Supreme Court. As we had urged (after informal consultation with the Commission), the government's amicus brief takes the view that the Price-Anderson Act remedial scheme is exclusive and preempts triballaw remedies. We worked closely with Department of Energy lawyers and with the Solicitor General's office in drafting the Price-Anderson portions of the brief. A decision is expected by the end of the current Supreme Court term in June,1999.
CONTACT: Marjorie S. Nordlinger 415-1616
. Cordes Solicitor DISTRIBUTION:
Conunissioners OGC OCAA 01G OPA OCA ASLBP CIO CFO EDO SECY
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Del Core v. Jackson. No. 3:98CV1011 (RNC) (D. Conn., decided Nov. 6,1998) i l
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UNITED STATES DISTRICT COURT ea.ro
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DISTRICT OF CONNECTICUT NOV S 12 18 fH '98 C L U. t.
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- C E NO. 3:98CV1011 (RNC)
SHIRLEY JACKSON and NUCLEAR l
REGULATORY i
JUDGMENT l
This action having come on for consideration of the defendant's motion to I
dismiss before the Honorable Robert N. Chatigny, United States District Judge and, The court having conducted a hearing on the record on November 6,1998 and having considered the full record of the case including applicable principles of law, the court orally ruled from the bench granting defendant's motion to dismiss, it is therefore, ORDERED, ADJUDGED and DECREED that judgment be and is hereby entered in favor of the defendants.
Dated at Hartford, Connecticut, this 6th day of November,1998.
KEVIN F. RDWE, Clerk s'
By.
+'/I D,E!?g[,5 4-d2 LVnda 1. Kunofsky g, d
Deputy Clerk
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.Civ. No. AW-98-3984 (D. Md., removed Dec. 4,1998) a 1
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IN THE UNITED STATES' DISTRICT COURT FOR THE DISTRICT OF MARYLAND I
PEGGY M.
DOLFORD, et al.,
Plaintiffs,-
v.
CIVIL ACTION NO.
ON)'iO~$i8M j
UNITED INTERNATIONAL INVESTIGATIVE SERVICE, Defendant,
,1 v.
SHIRLEY A. JACKSON, CHAIRPERSON, NUCLEAR i
REGULATORY' COMMISSION l
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i PETITION FOR REMOVAL Third-party defendant, Shirley A. Jackson
(" Jackson"),
by her. undersigned attorneys, respectfully represents:
1.
That Petitioner is the third-party defendant in the above-captioned civil action now pending in the Circuit Court for Montgomery County, Maryland and no trial has yet been had therein.
Copies of all process, pleadings, cnd orders served upon defendant in such action are attached hereto.
2.
That the above captioned case was filed on or about July 9, 1998 and petitioner Jackson was served on November 16, 1998 with the third-party complaint.
3.
That the above-captioned action is one which may be removed at any time before trial without bond to this Court pursuant to 28 U.S.C.
5 1441(a) and (b) in that it appears to be a civil action of which the federal district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States.
- Further,
the action is removable under 28 U.S.C. S 1442(a) as the action f
appears to relate to the federal third party defendants' actions under color of their office or in discharge of their official duties.
W!iEREFORE, this action now pending in the Circuit Court for Montgomery County, Maryland is properly removed Respectfully submitted, Lynne A. Battaglia United States Attorney 1
i A
By:
/
v
,vs Allen F.
L'6ucXs Assistant United States Attorney 604 United States Courthouse 101 West Lombard Street i
Baltimore, Maryland 21201-2692 410/962-4822 f
This Notice of Removal has been signed pursuant t 1
Rule 11, o
Federal Rules of Civil Procedure.
f' h N A
j Allen'FT Loucks Assistant United States Attorney J
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CIRCUYT COURT FOR MONTGOMERY COUNTY, MARYLAND CIVIL DIVISION PEGGY DOLFORD, et al.
PLAINTIFFS v.
UNITED INTERNATIONAL INVESTIGATIVE SERVICES,INC.
DEFENDANT and THIRD PARTY PLAINTIFF v.
l SHIRLEY A. JACKSON, Chairperson Nuclear Regulatory Commission Civil Action No. 189015 11555 Rockville Pike Rockville, Maryland 20852-2738 Serve: Lynne A. Battaglia 1
United States Attorney for the District of Maryland 6625 U.S. Courthouse 101 West Lombard Street Baltimore, Maryland 21201 and Janet Reno Attorney General U. S. Department of Justice i
10* & Constitution Avenue, N. W.
Washington, D. C. 20530 j
f THIRD PARTY DEFENDANT THIRD PARTY COMPLAINT 1.
Jurisdiction of the Court as to the third party defendant, the Nuclear Regulatory Commission, ("NRC")is based upon Ann. Code of Maryland 61-501 and Maryland Civil Rule 2-211.
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2.
Plaintiffs have filed against defendant United Intemational Investigative Services, Inc.
("UIIS") a Complaint, a copy of which is attached hereto as (Exhibit A).
3.
UIIS is a California corporation which provides security guard services to, inter alia, United States Government agencies such as NRC pursuant to contracts awarded under applicable U.S. Code statutes and Code of Federal Regulations contracting provisions.
4.
Since 1995 NRC has included as part of the security guard contract for the NRC facility in Rockville, Maryland a height / weight chart, which UIIS has been required to enforce on its employees and which the employees have been required to adhere to.
5.
UIIS's contract with NRC is renewed annually, effective February 1 of each year.
6.
On January 30,1998 UIIS received a copy of the NRC cor'.act to become effective February 1,1998. The contract for 1998 included a height / weight chart and a maximum body fat requirement promulgated by NRC, applicable to UIIS and to all UIIS employees.
7.
By letter dated January 30,1998 the NRC contracting officer informed UIIS that some ofits employees were not in compliance w th the NRC height / weight chart and the NRC d
maximum body fat content, and that such employees must be terminated and that UIIS must submit to NRC replacement employees no later than February 23,1998.
8.
Based upon the NRC contract provision and NRC's insistence that the height / weight and maximum body fat provisions of the contract be enforced by UIIS on its employees, UIIS terminated plaintiffs in Febmary 1998 for failure to comply with the NRC height / weight requirement and the NRC maximum body fat requirement.
9.
Failure by UIIS to enforce the NRC height / weight requirement and the NRC maxim.um body fat requirement provisions of the contract would be a default on the part of UIIS which would be cause for NRC to tenninate the contract with UIIS for default by UIIS.
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1 10.
Ifit is determined by the Coun that the removal action taken by UIIS against plaintiffs because plaintiffs failed to comply with NRC's height / weight and maximum body requirement was a violation oflaw, as alleged by plaintiffs, NRC should be required to indem UIIS for any damages imposed against UIIS based upon UIIS's implementation of the NRC height / weight requirement and maximum body fat promulgated by NRC in the contract with UIIS.
. WHEREFORE, defendant and third party plaintiff United Intemational Investigative Services, Inc. demandsjudgment against third par.y defendant Nuclear Regulatory Commission for all sums that may be adjudged against defendant in favor of plaintiffs.
Respectfully submitted, DESO, THOMAS, SPEVACK &
WE TZMAN, P.C.
Mitchell B. Weitzman, Esq.
1828 L Street, N. W., Suite 660 Washington, D. C. 20036 Tel:(202) 822-6333 Fax: (202) 822-6665 OfCounsel:
A h, W Robert E. Deso, Esq.
1 1828 L Street, N. W.
Suite 660 Washington, D. C. 20036 Tel:(202) 822-6333 Fax:(202) 822-6665 Counsel for United Intemational Investigative Services, Inc., Third Party Plaintiff c mv.narcua<rsuo3musmeeraert
CIRCUIT COURT OF MONTGOMERY COUNTY Civil Division Peggy M. Dolford 1516 7th St., N.W.
Wash., D.C.
20001 Eunice James
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Civ. Action No.
//fp/p 19512 Crystal Rock Dr., #14 Germantown, Md. 20874 Frederick County JURY TRIAL DEMANDED l
bgl0 Ernest Gilmore, Jr.
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237 Red Clay Rd., Apt. 101 Laurel, Md. 20724 Prince George's County Timothy L. Rawlings 3917 Lakehouse Rd., #13 Seltsville, Md. 20705 Prince George's County Plaintiffs,
-against-United International
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Investigative Services 180 N. Riverview Dr.
Suite 100 Anaheim, California 92808 Defendant.
COMPLAINT COMES NOW the Plaintiffs Timothy L. Rawlings, Peggy M.
Dolford, Ernest Gilmore, Jr.,
and Eunice. James, by counsel, and complaina of the Defendant United International Investigative Services, as follows:
THE PARTIES Plaintiff Peggy M. Dolford resides at 1516 7th St.,
1.
N.W., Wash.,
D.C. 20001.
2.
Plaintiff Eunice M. James resides at 19512 Crystal Rock Drive, #14, Germantown, Md. 20874.
EXHIBIT A
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3.'
Plaintiff Ernest Gilmore, Jr. resides at 237 Red Clay Rd., Apt. 101, Laurel, Md. 20724.
4.
Plaintiff Timothy L.
Rawlings resides at 3917 Lakehouse Rd. #13, Beltsville, Md. 20705.
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5.
On information and
- celief, defendant inited International Investigative Services is a company that has its offices located 180 N.
Riverview Drive, Suite 100,
- Anaheim,
., California 92808, employs in excess o~f fif ty people, and transacts businas.i in Montgomery County, Maryland.
VENUE AND JURISDICTION 6.
This action was brought within ninety days following receipt of a right to sue letter from the Equal Employment opportunity Commission.
Venue is proper on the basis of the residence of the parties and that Defendant transacts business in Montgomery County, Maryland.
THE FACTS 7.
Each of the Plaintiffs were formerly employed by the Defendant as a security guard in Montgomery County, Maryland.
8.
At all times during the employment of each of the l
Plaintiffs, each Plaintiff perfort.ied his/her duties to the satisfaction of Defendant and in a most competent and professional manner.
9.
Defendant terminated the employment of each of the Plaintiffs on or about February 27, 1998 because it regarded them as persons suffering from a disability because of their weight.
10.
Plaintif fs sustained lost pay, lost benefits, mental 2
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q anguish, pai'n and suffering and emotional distress as a res l u t of the termination of their employment.
_ COUNT 1 11.
Plaintiffs repeat and reallege the allegations contained in paragraphs 1-10 as if more fully set forth herein 12.
By and through its conduct,.the Defendant violated the federal Americans wi t...
Disabilities Act by terminating
[ Plaintiffs' employment because it regarded them as persons suffering from a disability because of their weight.
13.
Plaintiffs demand a trial by jury.
WHEREFORE, each Plaintiff demands judgment against Defendant on Count 1 and compensatory damages in the amount of
$250,000 consisting of back-pay, front-pay, lost
- benefits, compensatory damages for physical pain and suffering, emotional distress, menta.1 anguish, punitive damages, together with costs and reasonable attorney's fees, and such other relief as the Court deems just and fair.
DEMAND FOR JURY TRIAL Plaintiffs demand a' trial by jury.
Date:
July 1, 1998 Washington, D.C.
RESPECTFULLY SUBMITTED, Alan Lescht &
ssoc ates, P.C.
By:
/
Mlk scht 1300 19t treet, N.W., Suite 408 Washington, D.C. 20036 (202) 463-6036 Attorneys for Plaintiff 3
h-
.:..1 Md. Rule 1-313 Certification I hereby certi.fy tha I am admi d to practice' law in Maryland.
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Unte Cheh v. Jackson. No. AW-98:3610 (D. Md., filed Oct. 22,1998) 1 l
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famish Atates p_. -ietrict Courf[ [
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DISTRICT OF m4 1=nd-Routhern Division y
Unte Cheh 209 Reading Terrace-4 Rockville, Maryland 20850 SUMMONS IN A CIVIL ACTION t.
V.
CASE NUMBER'-
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(p /D s
j Shirley Ann Jackson, Chairman Nuclear Regulatory Commission One White Flint North I
11555 Rockville Pike Rockville, Maryland 20852-2738 l
TO: e. - - -... o.
4 Shirley Ann Jackson, Chairman Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 YOU ARE HEREBY SUMMONED anc recuirea to file with tne clerx of this Cou PLWT1FF*3 ATTCRNEY e..
l Unte Cheh j
209 Reading Terrace j
Rackville, Maryland 20850 an answer to ine c mosaint wnsen is nerewitn servec uoon you.witnin Inl5 sufrimOns UCCn vou. eXClusiv.! of tne cay Cr Service. If you f ail to Co So guC'7 Dent CV Cela
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__ =avs aster service or against you for tne reiiet cernances in tne comoraint.
will be taken rank _. V10no,0 0CT 2 e y CLERK cATE BYUEFUTY C1.ERK
- ,?l
,s IN THE UNITED STAT ES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CIVIL NO.
i 00000 CONSENT TO JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with the provision of Title 28 U.S.C. Section 636(c), the undersigned party or 1
parties to the above-captioned civil matter hereby voluntarily consent to have a United States Magistrate Judge conduct any and all further proceedings in the case, including trial, and order the entry of a final judgment.
i Date Signature l
i l
ORDER IT IS HEREBY ORDERED that the above-captioned matter be referred to United States Magistrate Judge for all further proceedings and entry of judgment in accordance with Title 28 U.S.C. Section 636(c) and the consent of the parties.
i Date United States District Judge i
NOTE:
Return this form to the CLERK OF COURT if you consent to jurisdiction by a Magistrate Judge. DO NOT send a copy of this form to any District Judge or Magistrate Judge.
12M7
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION 6500 CHERRYWOOD LANE, SUITE 240 GREENBELT, MARYLAND 20770 FRANK L. MONGE (301)344 0660 CLERK TO:
Party or Counsel FROM:
Clerk of Court CIVIL NO.
SUBJECT:
Disclosure of Corporate Interest DATE:
Within ten (10) days of this notice please advise the Clerk, in writing, of the presence, if any, of any undisclosed corporate interest pursuant to Local Rule 103.3.
If there is no such interest, state this matter in writing. This can be done simply by completing and signing the note below. If there is such an interest, set it forth in detailin writing.
This information is required to inform the Judge, to whom this case is assigned, of any possible need for disqualification from hearing this case.
Very truly yours, FRANK L. MONGE, Clerk Mr. Clerk CIVIL NUMBER I certify, as a party / counsel in the case noted above that is not an affiliate or parent of any corporation, and no corporation, unincorporated association, partnership or other business entity, not a party to the case, has a financialinterest in the outcome of this litigation as set forth in Local Rule 103.3.
PLEASE INCLUDE CASE NUMBER Attorney for 12/97 i
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, JS 44 CML COVER SHEET
. Aho sSd4 eMI cover sheet and the inforrrcton contained herein neither r'plac) nor Supplement th3 filing and servic3 of p
. by law. except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974,is required for the use of the Clerk of Court for the purpose of inttatng the civil docket sheet. (SEE INSTRUCTIONS oN THE REVERSE OF THE FORM.)
1.(a) PLAINTIFFS DEFENDANTS Shirley Ann JacWqrhhjial-ras {'I i
Unte Cheh Nuclear Regulatory Commission 209 Reading Terrace One White Flint North Rockville, MD 20850 11555 Rockville Pike COT 2 61998 Rockville, MD 20852-2738
..t (b) coVNTvoF REsoENet or Fast usTEoPunmFFyno yg y county oF REsoENcE oF rest usTEo oErENoANT "rc g : &qC,O'JRT (EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLYJW DEPomoy NOTE: IN LAND CONDEMNATION CASES uSE THE LOCATION OF THE TRACT OF LAND INVOLVED.
(C) ATTORNEYS (FmM NAME. AcoRESs. ANoTELEPHONE NUMBER)
ATTORNEYS (IF MNoWN)
Lynne A. Battaglia U.S. Attorney, Dist. of Maryland 6625 U.S.
Court House, 101 Lombard St.
921timore. MD 21201-2692 II. CASIS OF JURISDICTION (PLACE AN T IN oNE Box oNLY) 111. CITIZENSHIP OF PRINCIPAL PARTIES PLACE AN TIN oNE Box FoR PLAINTIFF (For Diversity Cases Only)
ANo oNE Box FoR oEFENoANT)
PTF DEF PTF DEF 01 U S. Govemment O 3 Federal Queston Citizen of This State 01 01 incorporated or Principal Place O4 04 Plainttf (U.S. Govemment Not a Party) of Business in This State Ig2 U S. Govemment D a Oiversity Citzen of Another State D 2 02 incorporated aM Pnncipal Place O 6 05 Defendant (indicate Cinzenship of Partes of Business in Another State Citzen or Subject of a D 3 03 Foreign Naton D6 06 Foreign Country IV. ORIGlN (PLACE AN T IN ONE BOX ONLY)
Appeal to Detrtot Transferred from Judge from egi Original O2 Removed from a 3 Remanded from O 4 Reinstated or a s another distnct D s Muttdistnct O y Magistrate Proceeding State Court Ar,)ellate Court Reopened (specify)
Utgation Judgment V. NATURE OF SUIT (PLACE AN TIN ONE BOX ONLY)
CONTRACT TORTS FORFEITURE / PENALTY BANKRUPTCY oTHER STATUTES O 110 insurance PERSONAL INJURY PER$oNAL INJURY D 410 Agricunure O 422 Appear 2e USC 15s O 400 state Reapportionment D 1Q Marme O 310 Airplane Q 342 Personaliniury -
D 820 omer Food & orug D 410 Antnrust D 130 Milier Act D all Airpiane Product Med Maipracuce O 425 oru0 Related Seizure Q 423 Wahorawal O 430 Banks and Bankirig D 140 Negoitable Instrumem LaDitty 0 365 Personalinjury -
of Propefty 21 USC est 26 USc 157 0 450 Commerce /tcC Raies/eic D 150 Reconry of overpaymem O 320 Assaun. ubes &
Produci uanimy O s30 uovat Laws D 40 Deponanon
& En'orcemem of Judgment 5 ande' D 341 Asbesios Personal O sa0 R R a Truce PROPERTY RIGHTS D 470 Rackuc influenced and D 1st Medicare Act O 330 Feaeral Empioyeer inlury Product uaotiitt O 850 Alenne Regs
""0'*""'
O 152 Recowry et ostauned uatsny O 660 occupanonal O m mPV"9m 0 e10 seective s'ervice Fucent Loans D 340 Marine PER$oNAL PROPERTY Safety /Heann O 830 Psiem (Excl Weans)
Q 345 Manne Product O 370 omer Fraud O 880 oner U"" I'*****
D ase Securmescommodnes/
EJchange D 153 Recovery or overpayment Leoamy D 371 Trum in Landmg O syl Customer Challenge sr woran s Benetns c 350 uoiar vemene D 3s0 omm Prsonai LABOR SoCI AL SECURITY 12 usc 34 to D 160 Stockholders' Sutts D ass uoiar vemcie Property osmage D $$1 Agricunural Acts D too omercontract Product uanimV D 3ss Property Damage O 710 Fa Labor Standards O sat Hia(139stf)
C 492 Economic Satdluation Act O Ill Comract Produr:t uabmfy D 360 omer Personalinjury Proovct uscimy Act O 882 Back Lung (923 O 893 Environmemat Mane's D 720 Labor /Mgmt Reianoris D ess orwc/DWWi405tgn D as4 Energy Anocaten Act REAL PROPERTY CIVIL RIGHTS PRISONER. PETIT 1oNS O ss4 SsioTaie xvi O ses Freedom of D 730 Labor /Mgmt Repomng C els R51 lao $lgp informanon Ac1 0 210 Land Condemnation D 441 voimg O 610 Monons to Vacate
& osciosure Act O 900 Appeaiof Fee ooiermmation D 220 Foreciosure
)(442 Empeymem I*menc' 0 740 Ralhmay Labor Act FEDERAL TAX SUlTS unow Eauai Accessio.susace C 230 Rom Lease a Eleciment D 443 Housmg/
Haeeas corpus D es0 Consmuienamy at O 240 Torts to Land Accommodanons D $30 Generai O 790 omer Labor Lmganon Bam Samos D 245 Tost Product uaDmty 0 444 WeRare O 53s onam Fwnany D 870 T,a,xes tu s Pialmm oefencant)
D eso omer statutory Actions O 290 All other Real Property 0 440 omer CNii Rigms D $40 Mandamus a omer D 791 Empa Ret inc Q 560 CivilRigms SecurWy Act Q 371 irs - Third Party 26 USc 7609 VI. CAUSE OF ACTION (cnE THE U $ CIVIL STATLrrE UNDER WHICH You ARE FiuNG ANo WRITE BRIEF siATEMENT oF CAuSE Applicable civif 'ItEt' YIDS""NENcE**N*$h VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
2000e, Americans with Disabilities Act, 42 U.S.C.
- 12101, and the Rehabilitation Act, 29 U.S.C.
794.
DEMAND $300,000 CHECK YES only if demanded in complaint:
Vll. REQUESTED IN CHECK IF THIS is A CLASS ACTION COMPLAINTI D UNDER F.R.C.P. 23 JURY DEMAND:
RYES O No Vill.RELATED CASE (S) (See instructions): ME DoCC NWBER IF ANY DATE Oct.26, 1998 S'GNATusE or ATToRNEv or REComo Unte Cheh/
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FoR OFFfCE UsE oNLY F.ECEIPT F AMOUNT APPLYING IFP JUDGE MAG. JUDGE
s UNITED STATES DISTRICT COURT FOR i
THE DISTRICT OF MARYIAND SOUTHERN DIVISION UNTE CHEH 209 Reading Terrace Rockville,.MD 20850 (301) 424-0074 Plaintiff, Civil Action No.:
/.S ~3b/O 7
v.
I SHIRLEY ANN JACKSON, Chairman NUCLEAR REGULATORY COMMISSION t
One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 Serve: Shirley Ann Jackson, Chairman-Nuclear Regulatory Comm'n One White Flint North 11555 Rockville Pike g,3 g
Rockville, MD 20852-2738 Loccw nict, ego and OCT 2 61998 Lynne A. Battaglia w.fgg c p ;, um TsjW,$'is*
United States Attorney District of Maryland 6625 U.
S. Court House 101 West Lombard Street Baltimore, MD 21201-2692 and Janet Reno Attorney General U.S.
Department of Justice
- 10th gggggg ggd Constitution Avenue, N.W.
Washington, D.C. 20530 Defendant.
COMPLAINT Plaintiff, Unte Cheh, Pro Se, hereby brings suit against
Defendant, Shirley Ann Jackson,
- Chairman, Nuclear Regulatory Commission ("NRC").
Plaintiff alleges as follows:
JURISDICTION
- 1. Plaintiff is an Asian male asserting causes of action which arise under Title VII of the Civil rights Act of 1964, as amended, 42 U.S.C.
S 2000e-2 and 42 U.S.C.
S 2000e-3, the Americans with Disabilities
- Act, 42 U.S.C.
S
- 12101, et seq.,
and the Rehabilitation Act, 29 U.S.C. S 794.
- 2. Plaintiff exhausted his administrative remedies under the applicable statutes by filing claims with the Equal Employment opportunity Commission and obtaining a final agency decision.
Plaintiff received the decision on September 29, 1998.
3.
The jurisdiction of this Court is based upon 28 U.S.C.
S 1331.
VENUE 4.
Defendant does business and has offices in Rockville, Maryland which is located in Montgomery County, Maryland.
5.
Plaintiff is asserting causes of action based upon incidents which took place in Rockville, Maryland.
Venue is proper under 28 U.S.C. S 1391.
FACTS 6.
Plaintiff attended Seoul National University in Seoul, Korea.
Plaintiff obtained a Master's Degree in 1969 and PhD from the University of Connecticut in 1972.
Plaintiff did one year of 2
post-doctoral study in Nuclear Engineering at Columbia University in New York.
- 7. Plaintiff has been employed by the NRC since April 30, 1984.
Plaintiff was first hired in April, 1984 as a Reactor Engineer / Inspector, GS-13.
At that time, Plaintiff was employed at NRC's offices King of Prussia, Pennsylvania.
Plaintiff remained there for approximately 26 months until June, 1986.
In June of 1986, Plaintiff was transferred to NRC's Washington Headquarters.
In December, 1987, Plaintiff was promoted to a position of Reactor Engineer, GS-14.
In July 1991-92 Plaintiff was appointed to be a member of the Advisory Committee on Reactor Safeguards.
He assisted the Chairman and Commission members.
On July 2, 1992 Plaintiff was laterally transferred to the position of Reactor Engineer, GS-14.
The NRC then changed the title of Plaintiff's l
position to that of Nuclear Engineer.
8.
In 1990, Plaintiff began to experience discrimination and retaliation in the workplace.
- 9. On July 13, 1991, during the scope of his employment with the NRC, Plaintiff was involved in a serious car accident in which he suffered injury to his neck and back which required surgery.
Plaintiff expirences stiffness in both his neck and his back from time to time and is required to perform biofeedback exercises i
several times per day, including during work, to alleviate the pain.
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- 10. Plaintiff also has a problem with his bowel which prevents him from digesting food normally and having normal bowel movements.
He also suffers from stress-caused gastroenteric bowel irritability syndrome which is caused by NRC's hostile work environment and which prevents him from defacating.
He requires digital manipulation and enemas.
Plaintiff must make frequ'ent trips to the restroom to remove waste from his body.
- 11. As a result of his neck and bowel problems, the Plaintiff must perform biofeedback exercises five times per day.
This requires Plaintiff to lay down on a soft mat on the floor and take deep breaths and perform sit ups.
This exercise assists the l
Plaintiff with his bowel movements and alleviates pain in his neck and back.
Plaintiff must perform some of these exercises at work.
Plaintiff does not have sufficient space in his office to perform these exercises.
Since the late summer or fall of 1994, the NRC has failed to provide the Plaintiff with any space and not suitable to perform his biofeedback exercises.
- 12. Plaintiff also suffers from depression.
He is on anti-depressant medication since
- November, 1994.
He receives psychotherapy.
I
- 13. On numerous occasions, while employed at the NRC, the Plaintiff engaged in protected activity within the meaning of the l
anti-discrimination statutes.
Plaintiff's protected activity included but is not limited to the following:
l 4
A
a.
Plaintiff first filed a complaint with an EEO Counselor in September, 1993; b.
Plaintiff also consulted an EEO Counselor on August 17, 1994, November 22, 1994 and March 24, 1995;
- c. Plaintiff sought EEO counselling on November 27, 1996, June 9, 1998 and October 2, 1998.
- d. Plaintiff sought EEO counselling at other times but i
cannot recall the dates.
14.
Since 1992, the Plaintiff has been subjected to the following acts of discrimination or retaliation:2 i
a.
Non-selection for the Advisory Committee on Reactor Safeguards (" ACRS" ), Senior Fellow Position, advertised in Vacancy 4
Announcement Nos. 94-R9313003 and 94-13001 (R/NO/D);
- b. Between January 3 and September 26, 1994, Plaintif f's requests to change his work schedule deadlines were ignored and/or commented upon in a disparaging f ashion (R/NO/D);
l c.
Between November, 1993 and November, 1994, the NRC ignored Plaintiff's requests to be trained on E-Mail (R/NO/D) ;
- d. Between May 9 and October 4, 1994, the agency denied the Plaintiff's requests for leave for bic, feedback exercises (R/NO/D) ;
e.
On October 10, 1994, Plaintiff's supervisor refused 3 The following will be used to identify the bases for each allegation of discrimination: "R"
= race; "NO" = National Origin (Korean); "D" Disability; "RE" = Retaliation or Reprisal.
5
e his request to attend a " Harvard Graphics" training course (R);
f.
From 1991 to - 1994, the. Plaintiff applied for the numerous ~ positions, but was rejected.
The positions are set forth in three pages of a memorandum which is attached as Exhibit A;
- g. On September 20 and 30 and on October 28, 1994, the agency subjected the Plaintiff to a non-consensual psychiatric examination (R) for forced disability retirement for mental
-disability based upon evaluations;
- h. On January 12, 1994, the Plaintiff requested but was denied assistance from the agency in packing his office contents and moving them from the second floor to the third floor (D);
- i. On December 23, 1994, the agency failed to honor the Plaintiff's request for an exercise mat for his use in performing biofeedback exercises (D);
- j. On June 6,
1994, the Plaintiff requested - but was denied assistance in moving his office contents from one agency facility to another (D);
- k. On December 9,1993, the agency informed the Plaintiff that he no longer could use Health Unit facilities to perform his biofeedback exercises (D);
- 1. The agency advised the Plaintiff to attend a basic Technical Writing Course and an entry level Nuclear Safety Course
'for non-technical persons on May 13, 1994 (R/NO);
- m. On May 13, 1994, the Plaintiff received a minimally 6
i successful mid-year performance appraisal (R/NO);
n.
On December 27,
- 1993, the Plaintiff's supervisor denied his request to attend a Probabilistic Risk Analysis Integrated Reliability and Risk Analysis System Course and a Probabilistic Risk Analysis Seismic Margin Methods Course (R);
- o. On January 30, 1994, the Plaintiff's supervisor denied his request to attend a Probabilistic Risk Analysis Integrated Reliability and Risk Analysis System Course (R);
- p. Plaintiff's supervisor assigned him responsibilities comparable to those of a GS-15 while his authorized level remained at GS-14 (R);
q.
The agency failed to reclassify the Plaintiff's elements and standards to match his actual work (R);
The agency denied Plaintiff's request to attend the r.
Water Reactor Safety meetings scheduled for the last week of October, 1994
'( R) ;
s.
In November, 1994, the agency informed the Plaintiff that he could accept voluntary retirement or face termination from l
the Federal work force based on the illegal / unethical psychiatric evcluation without his knowledge or consent (R);
t.
In
- December, 1994, the Plaintiff received an unsatisfactory rating on his Fiscal Year 1994 Performance Appraisal I
(R);
i u.
In
- December, 1994, the Plaintiff received a
7 j
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Performance Improvement Requirement Men orant;an (R);
- v. On October 3, 1994, the Plaintiff was not selected for the position of Nuclear Process
- Engineer, GS-14, Vacancy Announcement No.
94-48100 (R/NO/D),
although he was the only eligible candidate for the lateral transfer; w.
On October 5, 1994, the agency denied Plaintiff's request for union representation at a meeting (R);
x.
The Plaintiff was subjected to the discriminatory denial of attendance at the agency EEO and disability courses, from September 1994 to October, 1994 (R/D);
y.
The Plaintiff was subjected to the discriminatory denial of a transfer in October, 1994; z.
The Plaintiff was subjected to the discriminatory criticism of his language'and accent between May, 1994 and August, 1994 by Mary Drouin, Plaintiff's supervisor.
COUNT I (Disability Discrimination) j 15.
Plaintiff realleges and incorporates the allegations contained in paragraphs 1 through 14 of this Complaint.
- 16. Plaintiff suffers from a disabilies which limit one or more of his major life activities within the meaning of the l
l Rehabilitation Act and the Americans With Disabilities Act.
17.
The Defendant has failed to provide reasonable accomodation to the Plaintiff for his disabilities as previously alleged.
8
~
- 18. As a direct and proximate result of his disabilities, the Defendant subjected the Plaintiff to intentional discrimination in the terms and conditions of his employment, including but not f
limited to the denial of benefits, privileges, training, promotions and salary and subjected him to harassment.
As a direct and proximate result, the Plaintiff has suffered damages, including psychological and emotional harm, loss of back pay, front pay and other benefits and medical expenses.
WHEREFORE, Plaintiff demands judgment against Defendant for such compensatory and punitive damages as a jury might award, backpay, front pay, court costs, medical expenses, attorney's fees and any other relief the Court or a jury deems appropriate.
COUNT II (Discrimination - National Origin and Race) 19.
Plaintiff realleges and incorporates the allegations contained in paragraphs 1 through 18 of this Complaint.
- 20. Plaintiff is a member of protected classes based on his race (Asian) and his national origin (Korean).
- 21. As a direct and proximate result of his race and national
- origin, the Defendant subjected the Plaintiff to intentional discrimination in the terms and conditions of his employment, including but not limited to the denial of benefits, privileges, training, promotions and salary and subjected him to harassment.
As a direct and proximate result, the Plaintiff has suffered damages, including psychological and emotional harm, loss of back 9
pay, front pay and other benefits and medical expenses.
WHEREFORE, Plaintiff demands judgmer.t-again?.t Defendant for such compensatory and punitive damages as a jury might award, backpay, front pay, medical expenses, court costs, attorney's fees and any other relief the Court or a jury deems appropriate.
COUNT III (Retaliation)
- 22. Plaintiff realleges the allegations contained in paragraphs 1 through 21 of this Complaint.
- 23. Plaintiff engaged in protected activity as previously alleged.
24.
As a direct and proximate result of his protected activity, the Defendant subjected the Plaintiff to adverse action in the terms and conditions of his employment, including but not limited to the denial of benefits, privileges, training, promotions and salary and subjected him to harassment.
As a direct and proximate result, the Plaintiff has suffered damages, including psychological and emotional harm, loss of back pay, front pay and other benefits and medical expenses.
WHEREFORE, Plaintiff demands judgment against Defendant for such compensatory and punitive damages as a jury might award, backpay, front pay, medical expenses, court costs, attorney's fees and any other relief the Court or a jury deems appropriate.
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i JURY DEMAND j
Plaintiff demands a Trial by. Jury, l
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Unte Cheh,'~Pr6 Se 209 Reading Ter3ce
- Rockville. Maryland 20850 (H) (301) 424-0074 (W)~ (301) 415-5892 i
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Discrimination Complaint - Unte Cheh Page 12 December 2,1994 Date Position Position Title Grade Office / Division Applied Vacancy Disposition
- 1) Senior Fellow GG 15 Advisory Committee on 2/15/94 94 13001 "A" Candidate Status, Reactor Safeguards / Not Non-Sdection i
i Applicable 1
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- 2) TechnicalTraining GG 15 Analysis and Evaluanon of 10/1863 R94-26001 "A"r namee Status; i
Non-Selection ik i Adytsor OperanonalData/
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Opamtional Assessment l;'
- 3) Senior Syseems GG-15 Nuclear Matrrial Safety and 10/4/93 R93 48030 "A" C= awe
- Status;
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Performance Safeguards'wgh Level Non-Seleenon
/
! tg Waste Manne,cament j
Analyst i
- 4) Senior"Ibermal GG 15 Nuclear Regulatory 1/1IS3 93-53034 "A" Candidate Status; Hydraulic F=p=-
ReseenA/ Systems Research Non-Selection s
.o
- 5) Senior Program GG-15 Nuclear Reactor Regulation / 12/2162 93 50134 "A" Candidate Status; Rmhanon Safety and Non-Selection Manager
! %g 6) Senior Reactor GG-15 Nuclear Reactor Regulation / 11/16/92 93-50019 "A" Candidate Status; Non-Seleenan j
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Systems Engineer Opentmg Reactor Suppott
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- 7) Senior Reliability GG 15 Nuclear Reactor Regulation / 11662 93-50098 "A" r=dWe* Status; I
Non-Selecnon and Risk Analyst Systems Safety and Analysis
")C
/
- 8) Senior Reactor GG-15 Nuclear Reactor Regulation / 10/I662 92-7432-NR "A" C=dW** Status; Non-Selection Systems Engmeer Systems and Technology l
- 9) Senior Reactor GG-15 Nuclear Reactor Regulation / 3/3162 R92 7289-NR "A" Candidate Status; I
Non-Selection
[
l Engineer Operanng Reactor Support
- 10) Nucicar Process GG-14 Nuclear Matenal Safety and 9/21S4 94-48100 "A" c-aw4me Status, t
Non-Sch j
Safeguards / FuelCycle L.
j Engineer Safety and Safeguards j
}
i.
I1) Proja:t Manager GG-14 Nuclear Reactor Regulanon/ 12/2862 93-50165 "A" Candadate Status, Non-Selection i
Reactor Projects I
k
- 12) Reactor Engineer GG-14 Nuclear Reactor Regulanon/ 11/962 93-50097 "A" C=AWee Status; i'
Non-Selection Sptems Safety & Analysis
- 13) Reactor Systems s GG-14 Nuclear Reactor Regulation / 9/1462 92 7277-NR "A" Candidate St*Ws; Non-Selection I
Systems Safety and Analysis Engineer
- 14) Reliability and GG-14 Nuclear Fent Regulanon/ 8/2062 92-7271-NR
" A" CmaAWre Status; l
Non-Seleenon Systems and Technology Risk Analyst Dr. Cheh recognized this as unlawful and intentional discrimination, as opposed
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to a biza Te probability result, on or about July 27,1994.
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Discrimination Complaint - Unte Cheh Page 13 December 2,1994 Discrimination in Certification. The following are instances where Dr. Cheh was b.
intentionally and discriminatorily not certified as among the best qualified for the indicated position vacancy, when by objective standards he should have been certified as among the qualified for consideration in the position:
Date Position Position Title Grade OfGee/ Division Applied Vacancy Disposition
- 1) Senior Staff GG-15 Advisory Cuarniw on 2/26/92 92-8488-MB "A" C=Ma** Status Engineer Reactor Safguards/ Not downgraded to"B" Can&date Status upon Applicable Dr.Cheh's Raquest for Workman's C _...=="-m Non-Selectxmi
- 2) Senior'Ihennal Senior Nuclear Reactor Regulation / 1/25/93 SL-93004 "B" Candidate Status, Non-Selection Hydraulics and Level Inspection and Technical Testing Expert Assessment
- 3) Seniot Technical Senior Executive Director for I/6/93 SL-93002 "B" Candidate Status, Non-Selection Advisor and Staff Level Operations /Not Applicable Assistant
- 4) Senior Reli ility GG15 Nuclear Regulatory S/12/94 94-53071 "B" Candidate Status, Non-Selection and Risk Analyst /
Research/ Safety issues Resolution Engineer
- 5) Senior GG 15 Enforcement / Not 11/15/93 94-31004 "B" CinMate Status, Non-Selection Enforcement Applicable Specialist
- 6) Senior Regional GG-15 Nuclear Reactor Regulation / 8/23/93 93 25035 "B" C M=te Status, Non-Selection Coordinator and RegionalOperations and i
Program Engineer Research/Not Applicable
- 7) Section Chief GG-15 Nuclear Regulatory 7/23/93 93-53206
- B" C=ndidate Status, Non-Selection Research/ Safety Issues Resolution
- 8) Senior Program GG-15 Intemational Pmgram/ Not 6/11/93 93-24028 "B" Candidate Status, Non-Selection Applicable Manager International
- 9) Senior Staff GG 15 Advisory Committee on 4/26/93 93-13001 "B" Can6date Status, Non-Selection Reactor Safeguards &
Engineer l
Advisory Committee on Nuclear Waste / Not Applicable
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December 2,1994
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- 10) SeniorOperations GG-15 Nuclear Reactor Regulation / 2/16/93 93-50273 "B" Candidate Status, l
Engmeer, Team Reactorinspecnon and Non-Selection Leader Licensee Performance I
i 1g.
- 11) Senior Reactor GG-15 Nuclear Reactor Regulation / 1/25/93 93-50168 "B Candidate Sta:us: f f
Non-Selection M'
Engineer Systems Safety and Analysis 4
- 12) Senior Project GG-15 Nuclear Reactor Regulanon/ 1/25/93 93 50249 "B" Candidate Status, l o
Reactor Projects-III/IVN Non-Selection Manager I
t
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- 13) Senior Project GG-15 Nuclear Reactor Regulanon/ t/25/93 93 50251 "B" C=A*d=** Sta-Non-Selection Rem: tor Projects -III/IVN
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Manager b 14) Senior Reactor GG-15 Analysis and Evaluation of 12/21/92 93-26001 "B" Candidate Status, Non-Selection l
Operations Operanonal dew.
Operanons Ana== ment l
. i
- 15) SeniorTechnical GG-15 Policy Planning / Not 12/18/92 93 45007 "B" Candidate Status, Non-Selection w
Assistant Applicable l
v
,16) SeniorTechnical GG-15 Nuc. lear Reactor Regulation / 11/9/92 93-50094 "B" Candidate Status, M
Non-Selection i
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Assistant Program Management, Program Development and l
Analysis Staf j
i M
- 17) Senior Reactor, GG-15 Nuclear Reactor Regulation / 11/9/92 93 50094 "B" C=M=ea Sta:us,
%g Non-Selection l
Operations Program Management, Program Development and j
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Analysis StaK i
l-l I8) (enior Reliability GG-1$ Nuclear Regulascry 3/25/92 92-4758-RE "B" Candidate Status; v
Non-Selection g
and Risk Analyst /
Research/ Safety issues Resolution l.
Engineer
- 19) Senior Mechanical GG-15 Analysis and Evaluation of 9/27/91 R918212-MB "B" Candidate Status; l
Non-Selection l
Engineer Scientist /
Operational Data / Safety l
f ns
..a Engineer I
- 20) Engineer Section GG-15 Nuclear Reactor Regulation / 8/12/91 R91-7050-NR "B" Candidate Stata.
i Non Selection Safety Systems and Analysis Leader.
Dr. Cheh recognized this as unlawful and intentional discrimination, as oppose to a series of good faith ministerial errors, on or about July 27,1994.
l Retaliation for Farlier Comolaints.
7.
Manner of Retaliation. The instances and pattern of retaliation'are set forth in item 4) of Dr. Cheh's Formal Complaint, details of which are set forth in Dr a.
Counselor's Report and eiaborated upon in this letter, will become self-evident dur j
of an investigation. At this stage of proceedings, Dr. Cheh does not have suffic l
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El Paso Natural Gas Co. v. Neztsosie, r.g No. 98-9 (Supreme Court, amicus curiae brief filed Dec. 8,1998)
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3fn the Supreme Court of the Enittb States OCr0BERTERM,1997 ELPAso NATURAL GAS COMPANY, ET AL.,
PETITIONERS LAURANEZTSOSIE, ET AL.
ON WRITOFCERTIORARI 1D TEE UNITEDSTATES COURTOFAPPEALS FOR THE NINTH CIRCUlT l
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING REVERRAL SETHP.WAIMAN SolicitorGswral CounselofRecord JOHND.LESHY Loygy, gg N
Assistant Attorney General Depanrnent oftheInterior EDwIN S.KNEEDLER Washington,D.C. sot 40 MARYMNE SULLIVAN JONATHAN E.NUECHTERLIEN Cenern! Counsel Asaktantto the Solicitor Depanment ofEnergy General WasMngton,D.C.sosas MARTIN W.MATZEN ETHAN G.SHENEMAN JoHNF.CORDES Solicitor Attomys NuclearRegulatory Department ofJustice Commheion
%Mngton, D.C.20s304001 Washington, D.C.20sss (sos)s14-ssir i
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QUESTIONS PRERENTED f
- 1. Whether the tribal exhaustion doctrine bars prompt federal court considerstion of whether claims initially i
brought under tribal law in tnial court is11 within the com-i-
plately preemptive scope of the Price. Anderson Act.
- 2. Whether the court of appeals erred when it vacated the district court's preliminary injunction barring respon-dents from " seek [ing] niief under the Price-Andenon Act in tribal court" (J.A. 78a), even though respondents had f!Ied no cross sppeal chaDenging that injunction.
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yr-3fn the Supreme Court of the tEhdith Statesi OcToBERTERM,1997 No. 98 6 ELPAs0 NATURALGAS COMPANY, ET AL.,
PETITIONERS v.
ONWRITOFCERTIORARI 10.THE UNITRDSTATES COURTOFAPPEALS FOR TBENINTHCIRCULT BRIEFFOR THE UNITED STATES AS AMICO3 CURIAE SUPPORTING REVERSAL INIEEEST OFTHE UNITED STATES
.The Secretary of Energy and the Nuetear Regulatory Commission (NRC) have responsibility for implementation of the Atomic Energy Act of1954, of which the Price-Ander-son Act is a part, and the United States has an interest in the efficient and equitable adjudication of nuclear limhility claims. The United States also has an interest in the self-determination and self-government of Indian Tnks and in the e!.fectiveness ofIndiantnhlcourts. See note _, infra.
STATEMENT
- 1. 'Ibe Atomic Energy Act of1954,42 U.S.C.2011 et seg.,
comprehensively regulates "the possession, use, and prodne-tion of atomie energy and special nuclear material" for a range of military and industrial purposes, including the pro-vision of nuclear power. 42 U.S.C. 2013(c).2 In 1957, Con-1 Congrees laitially gave the Atomic Energy Comadssica (AEC)"ex-clusive jurisddion to license the transfer, delivery, receipt, naquisition, passession, and use of nuclear instenals? Paafe Gas & Elec. Co. v. State (1)
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2 Eress passed the Price-Anderson Act (Act), Pub. L. No. 85-l 256, 71 Stat. 576, as an amendment to the Atomic Energy Act. A major purpose of the Price-Anderson Act is to regu-late the terms on which private industry may be held liable to members of the public for its role in the development of the Nation's atomic energy program. See 42 U.S.C. 2012(i);
see generally Duke Power Co. v. Carolina Envil. Study
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Gmup,Inc.,438 U.S. 59,63 67 (1978).
As amended over the years, the Price-Anderson Act es-tabliahes a system of private insurance, industry-wide fbn-cial support, and government indemnity to satisfy potential claims of "public liability," defined (with certain exceptions inyplicable here) as "any legalliability ariaing out of or re-sulting from a nuclear incident or precautionary evacuation."
42 U.S.C. 2014(w). The Act expansively defines " nuclear incident" to include "any occurrence, including an extra-ordinary nuclear occurrence, * *
- causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hentdous properties of source, special nuclear, or byproduct material." 42 U.S.C.
2014(q). " Source material" includes uranium and uranium cre. 42 U.S.C.2014(z).
The Atomic Energy Act establishes a comprehensive li-censing and contracting scheme for industrial and other uses of nuclear materials. See, ep.,42 U.S.C. 2078,2093,2111, 2181 et seq.,2210(aMd). In turn, the Price-Anderson Act requires certain licensees (such as those operating nuclear reactors), and authorizes the NRC to require other licensees, to maintain a specified amount of insurance from private sources,42 U.S.C. 2210(a) and (b). The Act provides that the j
Energy Resources, Conceru. & Dev. Commk,461 UA 190,207 (1983); see 42 UAC. 2011 et seg. Congress has sira transferred the respansibilities of that agency to the newly formed Nuelear Regulatory Commission and Department d Energy. 42 UAC.2011 note-
l 8
government will enter into indemnification agreements with certain licensees, both to ensure compensation for einim in the event that liability awards exceed the amount made available by private means,42 US.C. 2210(e), and to channel
.h i
all Dnancial liability to the lieerp, limit on liability arising 42 US.C. 2210(t). %e Act further establishes an aggregate from a single " nuclear incident" in contexts where indemni-fication agnements are required,42 US.C. 2210(e); bans any award of punitive damages in those contexta,42 U.S.C.
2210(s); and, if aggngate liability exceeds the statutory limit in a particular nuclear incident, provides mea==i== to ob-tun additional funding and distntute it equitably,42 UE.C.
2210(eX2), (i), and (o). The Act provides special liability rules for cases invclving an " extraordinary nuclear occur-rence," see 42 U.S.C. 2014(j), generally requiring defendants to waive certain defenses relating, inter alia, to fault and statutes oflimitation.42 U.S.C.2210(nX1).
In the Price-Anderson Amendments Act of 1988, Pub. L.
No.100-408,102 Stat.1066, Congress responded to serious litigation problems arising from the 1979 accident at the nree Mile Tainnd nuclear power plant. See pp. _, infra.
ne 1988 amendments provide, among other things,'that "any suit asserting public liability" nnder any source oflaw 1
"shall be deemed to be an action arising under" the Price-Anderson Act itself. 42 US.C. 2014(hh). ney establish original and removal jurisdiction over such causes of ~ action in the federal district courts,42 U.S.C. 2210(n) and (o); pro-vide mechanisms for consolidating claims arising from a single incident and for coordin=Hng the orderly distribution of compensatory funds,42 UE.C. 2210(n)(2) and (3); and otherwise enable the federal courts to " encourage the equit-able, prompt, and efficient resolution of cases arising out of the nuclear incident," 42 U.S.C. 2210(nX3XCXvi).
- 2. Respondents are members of the Navado Nation who have filed separate suits in Navajo tribal wurt alleging that, between the mid-1940s and the 1960s, petitioners (or their i
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4 tivities on tribal lands leased from the Tribe. J.A. 76a-7/a; 87a.88a n.5.8. Respondents based their suits on theories of liability under triballaw. See Pet. 24; J.A. 81a. Petitioners moved in Navajo trial court to have the suits r%miesed on jurisdictional grounds, and the motions were denied. See, op., J.A. 63a-64a. Petitioners then filed these actions against respondents in the United States District Court for the District of Arizona, seeking declaratory and injunctive alief
]
agalnst further proceedings in tribal court. Pet.2 4.
In November 1996, the district court entered separate orders providing essentially the same reliefin each case. See J.A. 68a-78a. The district court denied petitionen' applica-1 l
tion for a p;eliminary irdunction, "except to the extent that l
[ respondents] seek 0 relief under the Price-Anderson Act in tribal court." J.A. 73a; see also J.A. 69a ("Ihe Court does grant (El Paso's] requested nlief to the extent that it en-l joins [ respondents) from pursuing a Price-Anderson Act complaint in tribal Court."),71a (nimbr). The district murt expressed no view concerning "whether or not the provi-l sions of the [Aet) have any application to the claims asserted by [ respondents] in tribal court" J.A. 71a,78a.
l Petitioners filed a notice of appeal, but respondents did not, despite the preliminary hdunction entered against them.
j A divided panel of the Ninth Circuit held that the tribal court exhaustion rule announced in National Forma Union Insurance Cos. v. Crom Tribe, 471 U.S. 845 (1985),
5 t Pet tionen claim, and respondents appear not to dhipute, that those activities were conducted under a license and contact with b AEC to supply uranium to b government. Pet. L Petitioners had entered into no ind-=M~" agreements with the government. Pet.10 na In 1990, Congnos erstad a federally adtr.inistered fund to compenaste, futer sh, onstain penons employed in unnium mining la the Soutwest between 1947 and IN1. Radiation Exposure Compa== ten Act, Pub. I No.101-426, 5 5,104 Stat.,_,,42 U.ELC. 2210 note. That legislation has no bearmg on the questions presented ben.
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compeBed the district court to stay its hand until after the Navajo court system had completed its inquiry into its ju-risdiction over respondents' chhns. See J.A. 92a. As relief, the m4onty not only affinned ther district court's nfusal to enjoin raspondents' prosecution of tribal hw claims in tribal.
court, but also dissolved the iMunction prohibiting them from pursuing Price-Anderson chims in that court, despite respondents' failure to challenge that injunction. Ibid.
Judge Elainfeld dissented, reasoning: "Because (1) it is law of the case, not appealed, that the tribal court lacks juris-diction over Price-Andenen claims, and (2) there are no claims that can be made that are not Price-Anderson ela'nna, it necessarily follows that (S) then are no claims that can be made in tribal court." J.A. 95a.
INTRODUCTION AND SUYMARY OF ARGUMENT This case implicates three separate issues. Fint, may the federal courts promptly resolve the parties' threshold dis-pute about whether respondents' tort claims inh within the preemptive scope of the Price. Anderson Act, even though that same dispute is currently presented in the tribal court proceedings (see J.A. 63a-64s)? Second,if the federal courts may conduet that threshokt inquiry, do respondents' claims in fact fab within the Act's preemptive scope, such that they are
- deemed to be [elaw) arising under" the Act itself (42 U.S.C. 2014(hh))7 Third, if respondents' claims do fab within that scope and are thus deemed to arise under the Act, should the federal courts enjoin the tribal proceedings on the ground that tribal courts may not adjud'.cate Price-Anderson claims over the objection of the defendant? Only the first of those questions is properly before this Court.
- 1. The tribal exhaustion requirement of National Far-mers Union Insuranee Cos. v. Crow Tribe, 471 U.S. 845 (1985), does not bar prompt federal court review of whether a claim brought initially under tribal law in tdbal court falls within the preemptive scope of the Price-Anderson Act. The G
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6 reason is specific to the Act itself. Tribal courts retain broad jurisdiction over cases involving " nonmember conduct on tribal land," Semis v. A.2 Contmefore, 520 U.S. 488, 454 (1997), as distinguished from cases involving nonmember conduct on reservation lands alienated to non-Indians. 'Ibe uranium vnining at issue liere occurnd on tribal knds and thus falls within the heartland of tnial jurisdiction over
nonmember conduct." IMd. The proper focus of this case, 1
therefor *. is not on the non-Indian 3dentity of petitioners, but on the peculiar subject matter of the claims brought against'them.
Onlinarily, the plaintiff is absolute' master of what juris-diction he will appeal to. A plaintiff is entitled to a state forum for the adjudicatlan of most chima arising under' state law, even where the defendant contends that federallaw preempts those claims, and even where the federal defense is the only question tndy at issue. A mimihr approach is warranted when a plaintiff chooses a tnlal forum for the agudication of claims arising under triballaw. A tribal court is competent to deelde standard defenses of federal preemp-tion, and the exhaustion doctrine protech the federal courts from premature involvament in many ordinary disputes pendiugintribalcourt.
The general rule making a plai.aff the master of his claim is, however, subject to an ir portant exception, known as a
" complete preemption" Congress occasionally deems a de-fined class to be common-law chims ' te claims arising under m
federal law and entitles the defendant to choose a federal forum-not just for the ultimate a4udiention of such claims on the merits, but also for the threshold inquiry into whether particular claima fall within the preempted class. The Price-Anderson Act is such a scheme. If respondents had sued in state court, therefore, petitioners would have been entitled to a fedeal fonnn for immediate resolution of whether respondents' nuclear tort chims fall within the class of claims " deemed to * *
- aria [e] under" the Act. 42 U.S.C.
- " '12/0E/86,12:50 FAI 2023052452 DOJ 0SG i6 0A6 1
M 7
2014(hh). The specific and import. ant statutory objectives underlying that guarantee ofimmediate federal court review 1
take precedence over the usual exhaustion requimment and
. entitle a defendant to similarly prompt access to a federal 1
forum when suit is bnught in tribal court.
- 2. Because they mistakenly believed that the tribal ex-haustion rule barred their consideration of the issue, neither the district court nor the court of appeals determined whether respondents' claims do, in fact, fab within the preemptive scope of the Price-Anderson Act. This Court need not itself resolve that issue on the znerits; rather, if it agrees that the exhaustion requirement does not bar such 4
review, it may remand to the Iowar federal courts for consi-l deration of the issue in the first instance. In any event, the torts alleged here do constitute " nuclear incident [s]" as that l
term is broadly defined in 42 U.S.C. 2014(q), and respon-dents' claims are thus properly " deemed to * *
- aris[e]
l under" the Act. 42 U.S.C. 2014(hh); see 42 U.S.C. 2014(w).
- 3. The final question potentiaEy at issue is whether tribal courts may adjudicate elmima deemed to arise under the l
Price-Andenon Act. That question is not properly before 3
the Court. Respondents did not appeal the district court's preliminary injunction barring them from " seek [ing] relief 1
under the Prioe-Anderson Act in tribal court" J.A. 78a.
That default divests any reviewing court of jurisdiction to revisit.whether respondents may now seek that very relief in tribal court. In any event, a basle purpose of the Price-Andenon Act is to ensure simplicity and efficiency in ths litigation of nuclear tort claims by entitling defendants, upon their motion, to a single feden1 forum for the adjudication of i
all claims arising from any nuclear incident. That purpose j
would be thwarted if tribal courts, unl:ke state courts., could nonetheless adjudicate such claims over the objection of the defendant.
1
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ARGUMENT PETITIONERS ARE ENTITLED TO PROMPT FED.
ERAL COURT REVIEW OF WHETHER RESPON-DENTS' CLAIMS ARE COMPLETELY PREEMPTED BY TIIE PRICE-ANDERSON ACT A. The Tribal Exhaustion Doctrine Bars Premature Fede-ral Intervention In Tribal Court Adjudication Of OrdinaryPreemption Defenses
'Ihe issue in this case antecedent to all othen is this: Does
,the usual tribal exhaustion requirement of National Far-men Union Insurance Coa. v. Crow Tribe, 471 U.S. 845 (1985), bar prompt federal court resolution of the parties' threshold dispute concerning whether respondents' claims fall within the preemptive scope of the Price-Anderson Act?
The nnswer is no, and the reason relates to the extraordi-nary character of the Act's preemption provision, not to any general principle concerning tribal court jurisdiction over casesinvolving non-Indians.
- 1. A fundamental principle of federal Ind.ian law is that tribal courts may exercise jurisdiction in cases involving non-Indians who " avail themselves of the substantial privi-l lege of carrying on business on the reservation " Merdon v.
Jiesrilla Apache Tdbe,455 U.S.130,187 (1982) (internal ~
quotation marks omitted).* Although this Court recently l
s See, e.p, Williama v.I,ss,358 U.S.217,222 223 (1959)(tribal murt I
had exctnaive junadasion to a4udu:ste emitract dispute bmught by non-i inun aga!nst Indian, even though n'on-Indian had sued in stste court; I
"[Dt is Nm =+M that respondant is not an In6.sa," because 'Thle was on the Reservation and the Na-% with an faden took place there");
Isnnerfy v. Distnet Court, 400 U.S. 423 (1971) (per curiam) (following Williams); Santa Claro Pueblo v. Martiner, 436 U.S. 49, 65 (1978) (trib:1 cauta are "appmpriate forums fx the exclusive adjadication of disputes affectir.g ircportant personal and pmperty inuresta of both in Aha and non-Ind2ans"); Iotes Mut. Isa. Co. v. IaPlante, 480 U.S. 9,18 (1987)
('Ttiribal authority over the activities of non-Indians on reservaten lands is animportant part of tnh1 sovere2gnty").
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limited tribaljurisdiction over suits between non Tnaiana for events arising on reservation lands that have been alienated to non-Indians or to a State, see Strute v. A-1 Contmetars, 520 U.S. 438 (1997), the Court "readily agree [d]" that " tribes retain considerable control over nonmember conduct on tri-balland":i.e., land owned by, or held in trust for, a Tribe or its members. Id. at 454. Here, petitionen conducted their mining activities on triballande (J.A. 87a-88a n.5), and the petition for certiorari presents no claim that this case raises the kind of territorial concerna at issue in Stmte. See also Merr-:on, supm (Tribes retain sovereign authority to tax non-Indian lessees doing business on leased tribal lands);
Kerr-#cGee Corp. v. Navajo Tribe,471 U.S.195 (1985)
(applying Merrion to tribal taxation of miners 1 production by non-Indians on leased Navajo lands). Those mining activities thus fall squarely within the class of cases in which tribal courts retain presumptive jurisdiction over " nonmember conduct."'
In National Farmers Union, this Court held that federal courts have jurisdiction under 28 U.S.C. 3881 to consider claims that federal law has " curtailed the power {] of [a]
Tribe" to exercise jurisdiction over a defendant in a case pending in tribal comt. 471 U.S. at 862. 'Ibe Court further 4 Congress recently reaffirmed the Unhed States' commitment to tribal courts by enacting the Indian Tribal Justice Act, Pub. L. Na 108-176,107 Stat. 2004 (1998), which picrides Snancial sad institteianal assis.
tance to tn%el,tasFoe systems throughout the United States. Congress pred'ested that legislation on its findags that "tn%aljustsee systems are an assential part of tribal governments" and are "the appropriate forsms for the adjudication of disputes afecting personal and property rights," 25 U.S.C. 3601(5) and (6); that "tnial courts are pemanent insututions charged with reacJving the rights and interests of both Indian and non-Indian indinduals," S. Rep. No. 88,10Sd Cong,1st Sess 8 (1993); and that
" civil jurydiction on an Indian reserystion presumptively lies in tribal cout, unless afErmatively limite3 by a speci5e treaty provision er federal statute," H.R. Conf. Rep. Na $83, losa cong.,1st Sess.18 (1993) (Internal quotation marks omitted).
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10 heki, however, that a party may not obtain such relief until after it has exhausted its remedies in the tribal judicial sys-j tem,' rule that the Court grounded in "a policy of supporting i
tribal self-government and self-determination," "the orderly,
=A=hw tion of justice in the federal court," and the vahis a
of providing tribal courts with "the first opportunity to evaluate the factual and legal bases for the challenge." Id. at 856. De Court at the time anticipated three possible exasp-tions to the exhaustion rule: where the asserdon of tribal l!
jurisdiction is in " bad faith," where exhaustion would be "fu,
tile," and "irhere the action is patently violative of express jurisdictional prohibitions." Id. at 856 n.21. Subsequently, in Iows Mutual Ins. Co. v. I4Plante,480 U.S. 9 (1987),.the l
Court relied on the exhaustion doctrine in rejecting the j
efforts of a defendant in a pending tribal court case to use l
the diversity statute to secure a federal court judgment on j
the merits of a substantive issue pending in the tribal court.'
l
- 2. Like esses in state court, cases in tribal court often present issues about the prsemptive efect of federallaw on i
a plaintif!'s cause of action. The ass 4,rtion of a preemption l
defense is generally no basis for federal. court intervention in tribal court proceedings. In the absence of a contrary con-j gressional determination, tribal'eourts, no less than state courta, are presumed competent to decide questions of fed-s Although substantive fadaral TaAg= law gives tribal eaarts exclustve funadaction over a variety of claims brought against Indians for events arising on a reservation, see, e.g, Wi!!iarna v. ks, supm; see also Sands Clam Pueblo,436 UA at 66, in our view the exhaustian doctrine does not itself rebut the ordinary rule that a plaintiff may select the forum in which suit will be filed. But ef. United States v. Plainbull,967 F.2d 724 (9th C'.r.
1992). When a private plafatin challenges an exen:ise of taxias or ngn-latory authority by the Tribe itself, however, we believe that the plaintaff ordinarily must first pnoent its objections to the tribal,adm*mistrative agency and then to the tribal court. See, ap., Middlermet v. Bobbitt,19 F.Sd 1818 (9th Cir.), cert. denied,613 UA 601 (1994); 94-42 Middlennst Gov't Br. In Opp. 6-12.
~ ~190#06 ^ 12iS1 FAX 2023058453 DOJ OSG 4a020 y
11 erallaw, including preemption.' Indeed,in many contexts, i
federal cotut adjudication of a preemption issue pending in j
tribal court could " render the exhaustion requirement virtu-l ally meaningless, aHowing a tdbal court to assert jurisdiction 1
over an action only after a federal court had effectively j
determined the merita of the case." Resanotion Tet Coop.
- v. Thne Affi&ted 1Hbes of the Fort Berthold Resertation,
. 76 F.3d 181,185 (8th Cir.1996). Moreover, abandonment of l
the ark==-tion requirement for esses involving standard-pnemption defanses would expose the feden1 courts to bur-densome requests for premature intervention-in many j
ordinary disputas arising in tn%al courts. Cf. National Far-
{
mer's Union,471 U.S.at 866457.
l Contrary to petitioners' suggestion (Pet.13-16), tribal i
court adjudication of ordinary pmemption defenses, in esses i
involving non-Indian condnet on triballands, is quite con-l sistent with this Court's decision in Strade. That case eon-eerned whether a tribal court had adjudicatory judsdiction to hear a suit between non-Indians involving a traffic acci-dent on a state highway within a reservation. The Court j
concluded that the state highway was jurisdictionally j
equivalent to land that the Tribe had alienated to non-8 See,44, Santa Clars pusNo v. Mortnas,486 UA 49,65 66 (1978) j (with martow exceptions, tdbal eaarts have exclusive jarlediction to j
address preemptive efreer, d Indian Civil Rights As on tdballsw); aam-i pare NorfAern Stefas Posser Co.v. Prairie Island #dnooksnien Sious Indiae C-- "g,991 F.2d 458 (ath Cir.1995) (boMing that **===haa would itself frustrate federal statstruy purposes), see geneestly pp.
infra. This Court has =A=annad that any concern about the competence of tribal courts to address genere11egallesnes "is not amcag the excep.
tlans to the exhaustion requirement established in Netwnal Termars Union,471 UA, at 866, s. 21, and would be contrary to the congressional policy piemoting the dowlopment d tribal courta? Iows Mutual,480 UA at 19; accord sf. at 21 (opinion d Stevens, J.) ("A federal court must always show respect for the jur(eA*= d other tribunals. SpeedicaSy, only la the most extraordinary cireamstances should a feders! court enjoin the conduct dlitigation la a state court or tribal court?).
=w h
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12 Indians,520 U.S. at 454-456, and it reaffirmed that, with ear-tain important exceptions and in the absence of a contrary congressioral direction, " Indian tribes hek civil authority over the euduct of n'onmemben on non-Indian land within a reservation." Id. at 446 (citing Montana v. United States, 450 U.S. 544, 565-566 (1981)). The Court separately ad-dressed the argument that a tribal court's adjudicatory jurisdiction over non-Indian < might exceed the Tribe's " civil authority" (or " regulatory jurisdiction") over them, just as l
the constitutional restrictions on a State's power to impose substantive niles of conduct on nonnsidents do not them-selves limit the power of state courts to adjudicate disputes between nonresidents under the hws of another State. See, ep., PMllips Petroleum Co. v. Shtdts,472 U.S. 797, 821-822 (1985). In rejecting that argument, the Court held that, "[a]s to nonmemben, ? *
- a tribe's adjudicative jurisdiction l
does not exceed its legislative junsdiction " 520 U.S. at 453.
Petitioners mistakenly cite that passage for the proposi-tion that exhaustion of remedies in the tribaljudicial system is unnecessary when a defendant in a pending tribal court action contends that federal law has preempted a tribe's "legishtive jurisdiction." Pet.18,16. As a preliminary matter, the logical consequences of that position would ex-tend well beyond the **=n= tion doctrine: the cited passage in Stmfe desh with jurisdiction, not exhaustion, and mis-application of that passage to the preemption setting would have odd and unfortunate jurisdictional effects. If federal pnemption of triballegislative juriwiletion deprived tribal courts of jurisdiction to hear a particular claim, tnbl courts would hek jurisdiction to uphold preemption defenses on the merits; upon conducting the inquiry and finding pnemption, the tribal court would be compelled to dimmina the relevant claim forlack ofjurisdiction.
Stmte does not compel such an anomalous regime. In re-jecting the analogy to state court jurisdiction over nonresi-dents involving conduct outside the forum State, Stmte ad-
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t 13 dressed an issue that, in many respects, is appropriately compared to personal jurisdiction. The Stmie Court's equa-tion of adjudicative and legislative judsdiction means that when a Tdbe lacks a suf5cient interest h non-Indian conduct outride tribal lands to ngulate the conduct directly, it also lacks adjudicatory jurisdiction over cases arising from that l
aame conduct. nat holding, however, is irrelevant where, as here, the conduct arises on tdballands and therefore falls j
squarely within the heartland of tribal sovenignty, subject 1
only to the preemptive effect of a federal statute-applicable to Indians and non-Indians alike-governing the subject matter of the suit. See Semie,520 U.S. at 454 (reaffirming Tribes' considerable control over nonmember conduct on tribal land"). Indeed, in this setting, it is inconsequential that the defendants in tribal court happen to be non-Indians.
I An Indian defendant could also raise a federal preemption j
challenge to a tribal law claim brought in tribal court, and he j
would have no less an intenst than a non-Indian defendant inits appropriate resolution.
Hus, if a tribal court otherwise has jurisdiction to hear a j
case (e.g., because the conduct occurred on triballand), any qualification of the tribal court's authority to decide a pre-emption defense on the merits, and to decide that issue in the first instance, cannot logically derive from the jurisdio-tional concerns underlying Strate.' Any such' qualification T In a "8 f
5 wwa b. hts Court added that the =^=ww raiuimnent is inapplicable when a federal comt is asked to consider the validity of " tribal <ourt jurisdaction over an action sneh as this one,"
beesuse adhennee to that requipment weald then serve "no purpose other than delay." 520 U.S. at 469 480 n.14. That footnote does not i
exasnpt from the e4 + requirement an ennmstances in which a federal court manu s the proper reachttion of a substantive issue pend-e lag in tribal ecurt to be " clear." Cf. Pet.14 & n.17. Instead, it indicates only that exhaustion is not required when, in cases prese's.ing the juris-dieuonal conaerns at issue in strute, a tribal court plaMy lacks adjudi-catoryjurisdiction over the conduct of non-Indians on abated land.
- - -.. = = = =
12/08/s8 12:58 FAI 2o23052452 D0JIOSG 2(,,,[,,,,,,,,,
4 14 must derive instead from the particular nature of the federal statutory scheme atissue.
B. The Exhaustion Doctrine Does Not Bar A Federal Court From Determinina. In The First Instance, The E5ect Of he Price-Anderson Act's Complete Pre-emption Scheme On Actions Pending In 'nfbal Court
- 1. In a suit brought in state court under state law,
- [f]ederal pre-emption is ordinarDy a federal defense to the plaintiffs suit. As a defense,it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court" Neeropolitan life Ins. Co. v.
TayZar, 481 U.S. 58, 63 (1987) (emphasis added). Conse-quently, ordinary preemption defenses must often be de-cided by state courts-even when the defendant would.
prefer to have a federal court decide the issue, even when the preemption defense is " obvious," 1td. at 66, and "even if both parties concede that the federal defense is the only question truly at issue " Caterpillar Inc. v. Fdliams, 482 U.S. 886, 893 (1987). As discussed, the same rule should apply to tribal court adjudication of an onhnary federal pre-i emption defense to a cause of action arising under tribal law.
The preemption chim that petitioners raise, however, is not an ordinary preeinption defense. *0n occasion, the Court has concluded that the pre-emptive force of a [ federal) statute is so extraordinary that it converts an ordmary state common-hw comphint into one stating a federal claim for purposes of the well-pleaded complaint rule. Once an area of state law has been completely pre-empted, any claim pur-portedly based on that pre-empted state law is considered, frum its inception, a federal claim, and therefore arises under federal hw." Caterpillar,482 U.S. at 393 (internal quotation marks and citation omitted) (addressing complete preemp-1
4 15 tion under Section 301 of the Lebor-Management Relations Act).s The principal consequence of " complete preemption," as distinguished from ortlinary pnemption, is this: A defen-dant sued in state court may immediateh remove the case to federal court; have the federal court nsolve any dispute about whether the plaintiff's claima fall within the scope of the completely preemptive scheme; and,if the claims do fall within that scope, have the federal court adjudicate the case on the merits if the plaintiff elects to proceed (and can proceed) with claima under federallaw. See Caterpillar,482 U.S. at 391 nA,393 894; Metropolitan Life,481 U.S. at 63-65.8 Significantly, a defendant's right to immediate federal court resolution of a preemption claim depends not on whether that claim is "obviousDy)" cornet at the outset, see Metropolitan Life, 481 U.S. at 66, or even on whether it is ultimately meritorious, see, s.p., Caterpillar, espm, but on whether it is a claim about complete, rather than ortlinary, preemption. Where a federal statutory scheme creates a spham of complete preemption, the fedent court, upon re-moval, has sole authority to decide whether a state law claim falls within that sphen, and "the State court shall proceed 8 Aceerd Metropolitan life,481 UX at 85 (addressing complete pre-emption under the Employee Retirement Inamne Semrity Act); Fron.
chise faz Bd. v. Construction Laborws Vocatma Trust,468 U.S.1,24 (1988) (same); see also Onsefa Indian Nation v. County of Oneida,414 US G81,675 (1974).
8 Some federsi statutory schemes have that jurisdictional efect1m-cause they completey occupy the relevant field and create an alternative federal cause of setlen, even though they lack a provision explicitly deem-ing common 1sw claims to be claims anang under federal lsw for purposes of the we&pieaded complaint mle. See generaDy Caterpsar,482 U.S. at
$98494; 14A C. Wright et al, Federn! Practics and Procedws I 8722, at 8tHrl (1998 Supp.). As discussed below, however, the Prioe-Anderson Ad.
does have an explicit " deeming" provision, and it has completely pre-emptive efed forthat reasonalone.
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b 16 no further unless and until the case is remanded." 28 U.S.C.
1446(d).
- 2. Congress has created only a few complete preemption regimes, and the Price-Andenen Act is among them. The Act provides that "any suit asserting pubhe liability," as that tonn is defined in 42 U.S.C. 2014(w), " shad be deemed to be an action ansing under" the Price-Anderson Act itself (42 U.S.C. 2014(hh)); that "the substantive rules for decision in such action shall be derived from the kw of the State in which the nuclear incident involved occurs," but onh if that law is consistent with the Act (ibid.); and that, "[ulpon motion of the defendant" or the NRC or the Secretary of Energy, "any such ad: ion pending in any State court * *
- shall be removed or transfemd to the United States district court" for "the district where the nuclear incident t[ook]
pisoe"(42 U.S.C.2210(n)(2)).
For the moment, we leave to one side our answer as to whether this case in imet falls within the preemptive scope of Section 2014(hh). See pp. _.__, infra. For present pur-poses, the important point is that for sorne class of eMma brought initiaBy under state law, the Price-Anderson Act converta those eWmn into " action {s] arising under" federal law. 'See p.__ & note _,itifru. As a result,if this suit had initinEy been brought in state court, petitioners would have been entitled (by removing the case) to an immediate deter-mination by a federal court, rather than by the state court, of l
whether the suit fans within the preemptive scope of the Price-Anderson regime. That fact is highly relevant to the l
first question presented here: Does the rule announced in National Fannen Union foreclose pmmpt federal court re-solution of the parties' dispute concerning whether respon-dents' claims fall within the Aet's scope, even though the federal courts would immuhely resolve that dispute if the case hadbeenfiledinstate court?
'Ibe answer is no. Unlike the weH-pleaded complaint rule
- governing the respective roles of state and federal courta, l
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17 the tribal exhaustion doctrine arises "as a matter of comity, not sa a jurisdictional pranquisite " Iows Muemal,480 U.S.
at 16 nA That doctrine is rooted largely in a long-Mm=hg I
congressional " policy of supporting tribal self-government I
and self. determination," National Fanners Union,471 U.S.
at 856; see also Iowa Kutual,480 U.S. at 1617, and it is subject to complete defeasance by Congress. Although the jurisdictional roles of tribal and state courts may diverge in other contexts (see note _,, supm; note _, infm), the rols of state courts is an appropriate point of refennee for deter-mining the dimensions of the congressional policy favoring tribal sovereignty in the complete preemption setting.
Where some particularized federal interest has prompted Congress to single out a subject matter for complete preemption, it should not lightly be presumed that Congress intended to make federal court review of the threshold preemption question less available to tribal court defendants than to stata court defendanta. That, however, would be the peculiar consequence of applying the exhaustion doctrine here to bar prompt federal court review of that question.
Forcing a federal court to " stay its hand" (Iowa Estual,480 U.S. at 16) when asked to decide a Price-Anderson preemp-tion challenge would frustrate the core purposes of the Act,
, aswenextdisenss.
- 3. Until the 1988 amendments to the Price-Anderson Act, claims ofinjury due to " nuclear incidents" were brought under state law, although federal law preempted state law in important resp _eets. See In re TML Iitig. Cases ConsoL II, 940 F.2d 882, 857 (Sd Cir.1991) (TMIII), cert. denied, 503 U.S. 906 (1992); see also Silhoood v. Kerv McGee Corp.,464 U.S. 238,251-256 (1934). Absent complete diversity, there-fore, the federal courts lacked origins 1 jurisdiction to hear most such claimc. See, e.g., Seibits v. General Pub. Util.
Corp.,746 F.2d 993 (8d Cir.1984), cert. denied,469 U.S.1214 1
(1985); Kiick v. Metropolitan Edison Co.,784 F.2d 490,493 (3d Cir.1986).
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18 hat jurisdictionalimpediment assumed particular impor-tance after the nuclear incident at Three Mile Island in 1979, j
which gave rise to *150 separate cases against TMI defan-denta, with over 3,000 eini==nts, in various state and Fed-eral courta" See S. Rep. No. 218,100th Cong.,1st Sess.13 (1987). There was then no mechanism for removing those cases to a single federal court. The existing removal and consolidation provisions of the Prim-Anderson Act were con-fined to " extraordinary nuclear occurrences" (see 42 U.S.C.
2014(j)), and the NRC had not declared the nree Mile In '
land incident to be such an occurrence. De resulting prolif-erstion of uncoordinated lawsuits led Congress to amend the removal and consolidation provisions to encompass cases arising out of any "nuelear incident." See 42 U.S.C. 2014(hh),
2210(n)(2). To ensure removability, Congress converted "any suit asserting public liability" for a nuclear incident into "an action arising under" the Price-Anderson Act. 42 U.S.C.
2014(hh)(emphasisadded).ao 30 See O' Conner v. CommamasalfA Edison Co.,13 F.Sd 1090,1099-1100 (7th Cir.) (gtven " Congress' =anWd latent to creata a new and entirely federalcause af action, na state c u e af action 1. not memy transferred to federal court.;instead, a new faders! cause of action supplants the prior state esuse of action"), eart. denial,512 U.S.1222 (1994); TXIII,940 F.2d at 856 ("The Amendmenta Act (of 1386) cmates a federal cause of ad=n which did not exist prior to the Act.'). Congress sp Walv intended to maMe) suits asserting public liability Tc)ases arising under the [1)aws of a
the United thates' within the meaning of Article III," and it did so u ensure the e4judwen af such sults in federal court. H.R. Rep. No.104, 100th Cong,1st Seas., Pt.1, at 18 (1987) (House Report) Onternal enipais omitted); accord S. Rep. No. 218,100th Cong ist Sess.13 0D87). In so doing, it foDowed aspecta af the wellestabilshed jurl=AW=1 model of the Outer Continental Shelf I4nds Act (OCSLA),43 U.S.C. ISSS(a)(2),
IS49(bX1). House Report at 18; see generaly Culf Ogshore Co. v. KobG 00 Corp.,458 U.S. 478 (1981)(AJ--iv OCSLA furt= Aid
- raA mebme).
The courts of appeals that have considered the issue have uniformly held that the Price-Anderson Act's convenlon of nonfederal causes ci action into removable federal eenses of action is consistent with Article III, even though thcee federal causes af action incorporate substantive state law to k
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19 "By creating this federal program which requires the.
application of federal law," Congress sought to achieve "equityD and efficiency in the disposition of public liability claims." TMI II, 940 F.2d at 857; accortl 42 U.S.C.
2210(nX8XC)(vi) (ancouraging "the equitable, prompt, and efficient resolution of cases arising out of [a] nuclear inei-dent"). In particular,'Tt]he availability of the provisions for consolidation of elaima in the event of any nuclear incident, not just an (extraordinary nuclear occurrenee], would avoid
.the inefficiencies resulting from duplicative determinations
)
of similar issues in multiple jurisdictions that may occur in the absence of consolidation." 8. Rep. No. 218, supm, at 18.
)
Mmover, by creating centrshzed control over compensation lunds, those same provisions also "ensur{e) the equitable and uniford treatment of all victims." H.R. Rep. No.104,100th j
Cong.,1st Sesa., Pt. 3, at 30 (1987).
'Ibe statutory emphasis on " equity 0 and ef5ciency" (TKI J
II,940 F.2d at 857) would be compromised if tribal courts, unlike state courts, were immune from immediate federal court review of any threshold dispute concerning whether a plaintiffs claims fhH wir.hin the completely preemptive, scope of the Price-Anderson Act. Such review serves two princi-pal objectives. Est, in many contexts, prompt federal court resolution of the preemption question will foreclose unooor-MnaW litigation in disparate forums concerning whether the claima fab within the scope of the Act and its substantive rules, such as (where an indemnification agreement makes the extent that k is consistent whh federallaw. See O' Conner,18 F.ad at 10941101; TMIII,940 F.Ed at 848 800; Niman v. NLO, Inc,108 F.3d 1546,1548-1649 (8f h Cir.1997).pn adddion to the provisions of the Prico-l Andenon Act Iteelf, federallaw oRen confbets wkh, and takes p over, state law <si such substantive issues as standant of can. See, s.p.,
Ro6erte v. Florida Power & light Co,146 FJd 1806,1808 (11th Cir.1998),
pethian for eest. pending, No. 97-6196 (filed Oa.16,1998); 0' Conner,18 F.8d at 1103-1105; TMIII,940 F.2d at 85S-860.) Respondents nised no j
Article III chaBenge in the court of appeals, i
n a
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20 them applicable) the limits on compensatory liability or the ban on punitive damages. See 42 U.S.C.* 2210(e) and (s); see also 42 U.S.C. 2210(nX1) (foreclosing certain defenses in case of " extraordinary nuclear occurrence"); pp.._ _, infra.
Second, Congress anticipated that, upon finding that the Act applies, the federal court would itself promptly adjudicate the case on the merits. See pp._ _, infra.
Below, we addmsa whether, unlike a state court, a tribal court may adjudicate claims " deemed to * *
- aris[e] un-der" the Price-Andenon Act (42 U.S.C. 2014(hh)) even when the defendant would prefer a federal forum. Our central point here ja simply that Congress had imp.ortant, efficiency-based policy reasons for assigning to the federal courts the task of i'anediately resolving, in the first instance, whether a particular case falls within the scope of the Act's complete preemption provisions. Those efficiency concerns are appli-cable to suits filed in any non-federal court, not just those filed in state courte. 'Ihis is therefore one of those unusual circumstances, like the three anticipated in National Fann-ers Union itself (see 471 U.S. at 856 n.21), in which the ordinary exhaustion rule must yield to a supervening federal interest. It wonid make little sense to apply that " prudential rule" (Strate,520 U.S. at 453) to forecloes the immediate fed-eral court preemption review that, for highly specific res-sons, Congress made avalble to any defendant sued in nimihr circumstances in state court.
- 4. In seeking an injunction in the district murt against further tribal court proceedings, petitioners claimed not'just that the Pdce-Anderson Act preempted respondents' tribal law chima and converted them into claims arising under the Act, but also that the tribal court lacks jurisdiction to adjudicate chima that are brought under the Price-Anderson Act (including chima that are brought under tnial law but are " deemed" to be chima arising under the Act). Our analysis to this point has not addressed the latter issue. We have detached that issue from the rest of our analysis not so l
12/06/86 A2: 54 FA1 80'<3052 452 DOJ 0SG
- 4030,
,e t,
21 much because it is analytically natural to do so as because this case arrives here in a very peculiar procedural posture.
Respondenta did not cross-sppeal from the district court's preliminey injunction barring them from " seek [ing] relief
- under the Price-Anderson Act in tribal court? J.A. 73a; see also J.A. 69a,71a. That default may bar current appellate consideration of whether respondents may now pursue the very reliefin tribal court that the hdunction forecloses.
i
- a. When one party files a notice of appeal from a district court's judgment and the opposing party files no cross-i appeal, "the appellee may not attack the decee with a view aither to enlarging his own rights thereunder or oflessening' the rights of his adversary." United States v. Asnerimn Ry.
Erpress Co., 265 U.S. 425, 485 (1924) (Brandeis, J.). Al-though language in one early opinion suggested that this was a " rule of practice" rather than a strict jurisdictional prenq-uisite, see Iangnes v. Green, 282 U.S, 531, 538 (1931), this Court has subsequently indicated that the rule is " inveterate and certain," Maasachusetts Nut. Life Ins. Co. v. Imferia, 426 U.S. 479,480 (1976), and that it defines "[t]he power of an appellate court to modify a decree," Morley Constr. Co. v.
Maryland Cas. Co., 300 U.S.185,187 (1937) (emphasis added). Indeed, permitting an appellee to challenge a dis-trict court judgment without having filed its own notice of appeal under Rule 4(a)(3) of the Federal Rules of Appellate Procedure would be " equivalent to permitting courts to ex-tend the time for filing a notice of appeal" and would there-fore contradict "the mandatory nature of the time limita con-tainedin Rule 4." Torres v. OakZand Seccenger Co.,487 U.S.
312,315 (1988); see also Rudinich v. Beeton Dickinson & Co.,
486 U.S.196,208 (1988) ("the taking of an appeal within the prescribed time is mandatory and jurisdictional"); Fed. R.
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App. P. 26(b) ("the court may not enisige the time for filing a notice of appeal")."
For those reasons, the court of appeals lacked jurisdiction to vacate the district court's injunction barring respondents
{
from " seek [ing] relief under the Price-Anderson Act in tribal j
court" (J.A. 78a), and any dispute about the vahdity of that,
injunction on the merits is not properly presented in this Court. Significantly, the question of the tribal court's authority to adjudicate PricoAndenon Anima on the merits l
is not logically antecedent to (even though it is obviour.ly related to) the separate que.. ion that is presented here: the appropriateness of a prompt federal court inquiry into whether the purportedly tribal claims now pending in tribal court fall within the Act's complete preemption scieme to i
begin with. Indeed, the latter question may be antecede'nt to the former, for only if the federal eoart determined that thes,e are in fact Price-Andenon Act claims would it become necessary to decide whether a tribal court may properly adjudicate them as such.
The procedural peculiarities of this case present an unfortunate jurisdictional barrier to full consideration of the i:
l u In Torres, the Court hem that, despite the "hamhness" atthe reen1t j
(487 U1 at 817), a fallum to MentJfy au parties in a ath of appealis a
'5WW-1 bar" to appeBata plief for t.ny omitted party (id. st 314).
2 Most eauds that have cons:dend the 5ssue in light of Tome have held that naamnphance with the cess 4ppeal mquimment presents a juris-i dictional bar to madf&=ttan of the district court'sjudgment to the h== ant et an appellee. See, ap., Johnson v. Teamsters Icon 2 558,102 F.8d 21,29 l
(1st Cir.1996) (4L-=^* maioritpale and "qpee{ing], post 4brres, that the cross 4ppeal time tirait in Faden1 Rule of AppeDate *rocedure 4(a)(3) j is mandatory and jW_Wa% Foung Radiador Co.v. Colofae Corp, 881 F.2d 1408,1416 (7th Cir.1989). But d.Spann v. Colonial Fi22 ape, s
i Inc, 899 F.2d 24, 32 (D.C. Cir 1990) (R.B. Ginsburg, J.). To support its contrary position, the apart of appeals in this case relied on praaarkt i
holding that a court may consider insws of comity not raised by the parties. J.A. 82a. But a court's power to addnss unrzined issues is dis.
tinct from, and has always exceeded, its power to gant unrequested relief. See, e.p, Amenean Ry.Espress,266 UA at 436.
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issues that would otherwise be presented. But the court of l
sppeals' most basic error was to act without jurisdiction.
Correction of that erar abould take precedence over correo.
)
tion af any mistakes the court may have made after errone-
)
ously assumingjuri h
- b. The q' estion on which, respondents have defaultedis u
important. On the one hand, the Pnee-Anderson Act does not explicitly address tribal court jurisdiction over claims l
arising under the Act, nor does it provide for removal of Price-Anderson claims from tribal court to federal court.
Compare 42 UE.C. 2014(hh) (converting "any suit asserting public liability"into suit arising under Act) with 42 UE.C.
2210(n)C2) (providing for removal only from "any
- l action pending in any State court"). As a general matter, "the proper inference from silence is that (a Tribe's] sover-l eign power remmin intact." Iows Muhial, 480 U.S. at 18 (internal ellipses omitted) (quoting Merdon,465 U.S. at 149 -
n.14). Idke state courts, tribal courts are courts of geness)
]
subject-matter jurisdiction, and, where they have jurisdie-l tion over the parties, they are presumed competent to adju-dicate claims arising under any source oflaw, including fed-er:11aw, in the absence of a contrary congressional deter-mination. See generally S. Rep. No. 88, supm, at 8 9.
On the other hand, Congress's desire for "equityD and ef5cioney in the disposition of public liability Ani==" (TM1 II,940 F.2d at 857), and its creation of a complete preemp-tion scheme to achieve those objectives, underscore an obvious intent to ensure, at the election of the defendant or the government, expeditions federal court review on the merits of any suit falling within the scope of the Price-Anderson Act. Evidence of that intent abounds throughout the Act. As we have discussed, Congress created a complete l
preemption regime in this context to expedite litigation con-l cerning nuclear torts, to " avoid the inefSeiencies resulting from duplicative determinations of similar issues in multiple jurisdictions that may occurin the absence of consolidation,"
l i
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J 12/06/96 12:55 FAI 2023052452 D0J 05G 24 S. Rep. No. 218, supra, at'13, and to give the federal courts centralized control over compensation funds to "ensur{e) the equitable and uniform treatment of all victims," H.R. Rep.
No.104, supm, Pt. 3, at 30. Without any statutory provision for transfer from tribal to federal court, tribal court agudi-cation of clahns arising from nuclear incidents would threaten to cause the very litigation problems that Congress sought to rectify: delay, uncoordinated litigation in dispa-rste forvms coneeraing the same underlying nuclear inci-dents, and. dispersal of related compensation claims. Indeed, a pervasive premise of the Act is that defendants may avald such problems'aimply by seeking consolidated feders]. court review of all cases assing from a single incident. See, e.g.,42 U.S.C. 2210(o) (addressing plans for centrahzed " distribution offunds").
Of course, not every case falling within the' Act's pre-emptive scope will ultimately present each of those prob-lems, because not every nuclear incident will give rise to multiple tort suita. Congress legislated with a broad brush, however, because it is aften dif5eult to know in advanos how many plaintiffs will eventually seek relief for radiation-i related illnesses caused by a single nuclear incident. See TKIII,940 F.2d at 856. Congreas's decision to include all
" nuclear incidents" within the Aet's preemptive scope, and to guarantee a federal forum to any defendant sued within that scope, represents a considered preference for bright-line rules in this area. That preference would be defeated ifim-portant jurisdictional decisions were to turn on litigation-intensive, case-by-case predictions in disparate forums about the potential for a particular nuclear incident to give rise to I
multiple tort suits.88 at Ahhaugh Congnss creawd an exclusivey federal emse of adian for "any suk asserting publieliabDity," A provided that %e substantive rules for deasson in sneh adion shad be derived from the law of the Staf4 in which the nuclear incident !avolvd occurs," except where inconsistent l
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25 In sum, Congress anticipated only two forums for the adjudication of Price-Anderson claims, and they are the two forums that the Act explicitly addresses: federal courts and, subject to an absolute right of removal, state courts. See 42 U.S.C. 2210(n)(2). Tribal court adjudiention of Price-Ander-son claims, over the objection of the defendant and without any meeWmn for removal, would contradict the structure and purposes of the Act. And application of the an= Wen rule to delay federal-court adjudication of the proper forum for Price-Anderson claims would itself contradict the Act's emphasis on efficiency and simplicity in nuclear tort htigs-tion. Cf. Na& mal Fonners' Union,471 U.S. at 856 n.21.
Because the Act is intended to ensure automatie adjudies-tion of nuclear liability claims by the federal courta "[u]pon l
motion of the defendant" or the government (42 U.S.C.
2210(n)(2)), the Act might be read to confine jurisdiction over such claims to the federal and state courts. In our view, bowever, the rule favoring retained tn*bal sovereignty to the extent consistent with federallaw (see Mensm,455 U.S. at 149 n.14) supports a slightly different approach. The Act preserves state court jurisdiction over Price-Anderson claims in the absence of any request for removal. Similarly, the exercise of tribal court jurisdiction over such claims comes into clear confilet with federal law when, and only when, the defendant (or the govemment) seeks, but cannot obtain, a federal forum. In those circumstances, just as a de-fendant resisting state court jurisdiction may obtain imme-diate removal to a federal forum for a4judication of the case with the Price-Anderson Ad. 42 UAC. 20140&); see also note, swpra (acting role of federallaw in setting standard of enre). Under one natutul interpretataon of that provision, tribal courts a(judienting Price-Anderson -
claims might need to apply state law in important respects. CL Richarde
- v. United Stafu, $G9 UA 10962). Becense the statutory scheme provides for divesting the state couru themselves of.their role in applying state
- law, it would be somewhat anomalous to preserve for tribal courts a much larger role in applying that same state law.
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1 26 on the merits, a dafad==t resisting tribal court jurisdiction over Price-Anderson claims should be entitled, upon filing a motion to dismiss in the tribal court, to seek pmmpt idune-tive relief in federal court, if neesssary, on the ground that further proceedings in tribal comt would be inconsistent with the Act. Cf. NationalTennew Utsien,471 U.S. st 850-858, 856 n.21. 'Ihe plaintiffs who had brought the elmies would be free to refile them in federal court.38 C. Respondents' Tribal Iaw Ctahms Fall Within The Pre-emptive Scope Of'the Price-Anderson Act.
Respondents sagued below that the Price-Anderson Ict "has no application whatsoever to the case at bar." Appel-lees' Joint C.A. Br. 28. They yeasoned that petitioners'had entered into no relevant indamMfiention agreement with the Atomic Energy Commission when conducting the mining ac-tivities at issue; that the term " nuclear incident," as defined 88 Our conclusions aaaaammr the mie of tribal courts in a(judicating Prian-Anderson elahns derive fran the stwagth and specificity of the
,4 ongress's deelslon to ensure the sva5sbility patiey objedives d'
- C of federmi comt review la the suelear tart context. Adoption of our anah-als would sat aquin the Comt to address the mie of tribal samte in deckhag fedeal ennaes of action genersRy, even though, if brought la stata coat, virtually any feden1 conse af adion may be renoved to fed-eral eaurt. See 88 UAC.1441. Particulady when compared to the com-pelling purposes underlying the removal provisar of the Price-Anderson Act, "the underlying purposes of Congress in providing for federal questian removaljurisdidios ran!n somewhat obeean." Royr Marists, Inc. v. Reto4 CIsrts Union,198 U.S. 285,248 (1970). Similarly, as this Comt has twoognised, general principles of federal court diversity juris.
hiaa have littis bearing on tdbal comt a4udicatory authority. See loiss Xutual,480 UA at 1618. Snits against federal of5cere in tribal court rulse a separate met of concerns In'vol-ing not just A,.A. tion of the provision speaficmRy providing for the amoval of suits in stata coat against such afficers (28 UAC.1442(aX1) (Bupp. II 1996)), but also primei-pies of condty between the national and dependent sovereigns. Compare United Siadas v. YoMsna fHbal Cowt,806 F.2d 853 (9th Cir.1986), cert.
denied,481 U.S.1069 (1987), with Becenti v. VipG, 902 F.Ro 777, 779 780 j
(10th Cir.1990).
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27 in 42 U.S.C. 2014(q), encompasses onh those " incidents" that implicate such indemni5 cation agreements; that the ekm here are therefore not claimm for "public liability," as that term is defined in 42 U.S.C. 2014(w); and that these are therefore not "public liability actio'n(s)" to which the Act's preemption provisions apply, see 42 U.S.C. 2014(hh),
2210(n)(2) and (3). We disagree.
- 1. As an initini matter, we do not believe that resolution of this case compels this Court to decide, on the merits, whether the absence of an indemnifiestion agreement re-moves respondents' einima'from the scope of the Price-Anderson Aeb--an issue that the court of appeals did not i
reach (see J.A. 92a n.7) and, notably, does not appear in nspondents' bdefin opposition to the petition for certiorari.
Cf. Sup. Ct. R.15.2. The question presented in this case is whether the tribal exhaustion doctrine bars immediate fed-
)
eral court review of the Act's preemptive effect (if any) on respondents' claims under triballaw. The reason the answer to that question is no is not that petitioners' preemption i
argument is correct on the merita (although we believe it is),
but because it is an argument about complete preemption under the Price-Anderson Act, rather than an orthnary pre-emption defense under same other federal statute.
When a state court defendant cites feden1 preemption as a basis for nmoval, a federal court may decide the preemp-tion question in th3 first instance if the question concerns whether a claim falls within the scope of a corapletely pre-emptive scheme (whether or not the answer is obvious), and may not do so if the question concerns whether the claim falls within the scope of an ordinary preemption defense (again, whether or not the answer is obvious). See Keim.
politan Jife,481 U.S. at 66. If the issue is one af complete preemption, the court simply conducts the inquiry and then, depending on the outcome, either does or does not remand the case to state court. A mimilar approach is appropriate when the suit was initially brought in tribal court. The
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5 special features of the Price Anderson Act that maa the or-dinary exhaustion rules inapplicable do not turn on whether, in a particular case, the' federal comt ultimately finds that the taibal claims at issue fall within the prsemptive scope of that Act.. If the court is uncertain at the outset whether the elahns do fall within that scope, the proper and efficient course is not to abstain from making the inquiry, but to conduct the inquiry and, if complete preemption is found, to enjoin ti.e praeaadings in tribal comt.
In this case, no federal court has yet addressed whether hspondents' tribal law claima fall within the preemptive scope of the Act. Like the district court (J.A. 71a,73a), the court of appeals mistakenly held that the tribal exhaustion doctrine foreclosed any consideration of that substantive preemption question. J.A. 92a n.7. If this Court reverses on the threshoki exhaustion issue, one appropriate disposition is thus simply to romand the case to the lower courts for consi-deration, in the first instanos, of the' parties' dispute about the Price-Anderson Act's preemptive scope.
- 2. In any event, we disagree V,th the position, advanced by respondents below, that the Act's preemption provisions are' inapplicable in the absence of an indevanificatinu agree-ment. The Act preempts, and " deem [s] to be an action aris-ing under" federal law, any "public liability setion," which the Act defines as "any suit asserting public liability." 42 U.S.C. 2014(hh)." *Public liability"-so named because it M h 2014(hh) defines the team "publie liability edian" %s need in section 2210? The term appears in only two places in Section 2210. First, it appears la the renovel and eensclidation provision of Section 2210(nXI),
which antles no reference to lad *==iM= agreements at an. The team also appears, by cross-reference to Sedian 2210(nX2), in Section 2210(nXs). That provision cites eertain etreurastances involving indemni-fication agreements as included within a larger class of circumstanees in which a distrid omrt is authorised to appoint a "special cameload manage-mer.t panel? See 42 U.S.C.2210(nX3)(AXi) and (1). Nothing in Section 2210(nX2) or Section 2210(nX3) suggests that the removal and l
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4 29 involves liability to (not of) the public"-is broadly defined to include "any legal liability arising out of or resulting from a nuclearincident? 42 U.S.C.2014(w). In tura,"nuclearin-cident" is defined to include "any occurrence, including an extraordinary ana. lear occurrence, * *
- causing * *
- bodilyinjury, sickness, disease, or death * *
- arising out of or resulting from the rmWve, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material." 42 U.S.CL 2014(q); see also 42 U.S.C. 2014(z) (de-fining " source zraterial" to include uraniun?). Nowhere a
does the Act nr.ke the existence or nonexistence of an in-Uemnificathn agreeinent relevant to.whether a nonfederal claim falls within the scope of a "public liability action" for purposes of the removal and preemption provisions."
caaaalidati= povisions are applicable only when then is an undertylag indemnificatian r i
u See, e.g., S. Rep. No. 296,86th Com ist Sess. 8 (1967) (#=- ' ;
efforts to " determine the amount of Ananda! prd% which the Imenase for nadors most have to ptaaet the public against nuclear ir.ne.7 id.
at 16 (term " financial protection"is Nefined to mean the ability to respond i
in damages for publie lishihty"); id. at 17 (term "publie liabWty" means "a kgal liabsty arlaing out et, or resulting from, a suelear imaidae");id. at 18 (disonssing Marnage tothe pobhe").
j 38 'Ihe Act deGaes " person indemnised* to include, infer alfa, the fotbwing. "with respect to a nuclear inetAant canning within the United States = outaide the United States as the term is used in sectlan 2210(e) of this title, " * " the person with whom an indemnity agreement is exe.
i ented or who is required to maintain finammal protection, and any other person who may be lishh for pubbe hability." 42 U.S.C. 2014(t). That de6mition is wrtten broadly to "protec4] the public"In case a third party, rather than "the penon with whom the indemnity agnement is executed,"
causes a nackar incident at a regulated facility: s.p., where "some unusual incident, sneh as negligeus in maintaining an airplane motor, should canse an airplane th crush lato a reacter." See, e.g, S. Rep No. 296, supra, at 17.
Under any r casonable definition, however, the term does not embrace con.
texts in we feh no one has an Ind mntfiention agreement with the govern-ment. The term itself, and its use elsewhere in the Ad, presuppose the existence of some nlevant person appropriately identiSed as "the person with wham an indemnity agnement is executed." 42 USO. 2014(t); see, i
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In con'tnst, many of the Aet's otherimportant provisions
-such as the damages cap (42 U.S.C. 2210(e)) and the ban on punitive damages (42 U.S.C. 2210(s))--specifically provide, l
Indemnifiention agreements.gW only in contexts involving on their face, that they ap l
That is further reason not to read a similar limitation into the provisions at issue here. It i
is true that, when Congress originally passed the Price-l
. Anderson Act in 1957, it was chiefly concerned with nuclear liability in the particular contexts in which' defendants wouki have entered into indemnifiention agreements with the gov-ernment. See, e.g., S. Rep. No. 296,85th Cong.,1st Sess,16 18 (1957). And it is also true that, before the 1988 amand-ments, the Act itself (as distinguished from federal reguls-
~
l tion generally (see note supru)) had little substantive m
l significance for cases in which the defendant had no such agreement. By their terms, however, the preemption, re-moral, and consolidation provisions resulting from the 1988 amendments extend to all esses involving "duelear inci-j i
dents," as broadly defined by the Act, whether or not tha de-i fendant has an indamnification agreement with the govern-ment." The plain language of those provisions is dispositive, i
44,42 U.S.C. 2210(e). Hen, pethioners have no indemsky agreement i
wkh the government, and therefore, as they have admowledged, "El Paso's and Cypres' claims are act subjed to federalindemniscation." Pet.
10 a.14 see also lens v. PsNa,518 U.S.187,132 (1996)("a waiver of the Government's sovereign immunity will be strictly construed, la terms of ks scope,in favor of the movereign.").
ITIn so providag, those provisions use language confirming that the term ancisar incident"is nar consned to esses involving indemnasetha agreements. See, sp,42 U.S.C. 2210(s) ("No court may award punitive damages in any action with respect to a andear incident or prWay evacuation against a person en behalf of whom the United States is obti-gated to make payments under an agreement of Indemnification covering such twiAant or evacuation.").
8 See Kerr McGee Corp. v. Perley,115 F.8d 1498,1504 (loth Cir.
1997), eart. deniad,116 S. Ct. 880 (1998); see also Gossis v. SME Swiss Corp, No. Civ. A. 97-8567,1998 WL 71647 (E.D.14. Feb.17,1998) (unre-w
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12/06/96 13:57 FAI 2023083453 D0J 0SG idD 040 9
31 even though it embrsees a larger class of nuclear liability l-cases than the partimlar subclass with which Congress was most acutely concerned. See Erqpon v. United States,118 8.
o Ct. 805, 809 (1998) (TI)t is not, and annot be, our pracdoe to i
restrict the unquali5ed language of a statute to the parti '
l cular evil that Congress was trying to remedy?).
CONCLUSION N judgment af the court of appeals should be reversed, i
Respectfully submitted.
SETEP.WAII(AN SolicitorGenarol LotsJ.ScsIrrEn i
JOHND.LEsar h at % Gensrul Sokitor D *INE' M ED M Department oftAsInterior DeputySolicifor Genarul MARYANNESUUJvAN JONATRANE.MUECHTERMEN l
ww 88 N 80 Depsttrncat ofKnaryy J T hcon s ManTxNw.umex ETEAN G.BEENIMAN Comunisuson W"
DECMBER 1998 ported); NorGeast OWo Ray'l Somer Dist. v. A&nnend Ed. Sys., Inc.,686 N.E.2d 612 (Ohio Ct. App.1996); cf. In re Cincinnati Radation Lit.,874 F. Supp. 796,882 CB.D. Ohio 1996). But see 046ery v. Steps = CA No. Civ.
A.98-189,1998 WL 665978 (D.NJ. Ang. 20,1998) (magistrata judge decisioa). Respondent. -+-as bdow that, in a abotnota in samar, 464 U.S. at 262 n.12, this Court suggested that the Act does act "apptf in the absence of aa lademai6 cation agnement. As the Tenth Cirealt observed in h& Gee (115 FJd at 1504), however, that f~*w-holds ely that the Act's liability limitation provisions were inappliemble in caha because the defendant had no indemnhtien agnerneat. The appliesbility of the Act's new preemption and removal pavisions was, ef course, not at issue, because Siunsood was decided before the 1988 amendments.
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