On September 26, the US Court of Appeals for the Ninth Circuit issued an interesting order in the ongoing Navy sailor suit, Cooper et al. v. Tokyo Electric Power Company, Inc., seeking the US Department of State’s views on the pending appeal.

The case involves a tort action brought by US Navy personnel who allege that they suffered radiation-related injuries while providing humanitarian relief from Navy ships located off the shores of Fukushima, Japan, in March 2011. Defendant Tokyo Electric Power Company (TEPCO) owns and operates the Fukushima-Daiichi Nuclear Power Plants, which were damaged as a result of the earthquake and resulting tsunami. Plaintiffs brought suit in the US District Court for the Southern District of California, contending that TEPCO was negligent in operating the plant.

TEPCO moved to dismiss the suit under international comity and political question doctrines, arguing that the United States and Japan had strong interests in centralizing claims from nuclear accidents within their respective jurisdictions. TEPCO based its argument on policies embodied in the Convention on Supplementary Compensation for Nuclear Damage (CSC), which had been ratified in the United States in 2006 (before the earthquake) and in Japan in 2015 (after the earthquake). Although the CSC did not take effect until 2015, it states that “jurisdiction over actions concerning nuclear damage from a nuclear incident shall lie only with the courts of the Contracting Party within which the nuclear incident occurs.” The district court rejected TEPCO's arguments.

The case is currently before the Ninth Circuit on interlocutory appeal. The court permitted the government of Japan to submit an amicus curiae brief. Urging reversal of the district court's ruling, Japan noted its development of a comprehensive compensation system following the 2011 events and argued that damage claims brought in tribunals outside Japan threaten the viability of that system:

The Government of Japan has serious concerns that this suit, and perhaps others like it, could result in the application of different legal standards to adjudicate Fukushima-related claims and, as a result, disparate outcomes for similarly situated claimants. This could prove highly corrosive to the integrity of the compensation system established by the Government of Japan. U.S. courts should not undermine the carefully calibrated public policy reflected in the legislation passed by the Japanese Diet establishing the nuclear accident compensation system.

The new development is presented in the court’s September 26 order. In that order, the Ninth Circuit invited views from the US State Department:

We find it appropriate to solicit the State Department’s position on whether this lawsuit should proceed in the United States. The court would benefit from the Department’s views on the relevant legal issues in this case, including the applicability of the above-mentioned justiciability doctrines in the context of this action. We request the Department’s position in the form of a Statement of Interest filed pursuant to 28 U.S.C. § 517.

The court requested a response within two months.

We have long postulated that federal judges might defer to the US government’s position in the CSC that claims should be brought in the country where an accident occurs and that arguments to this effect could be persuasive in convincing federal judges to invoke the doctrine of forum non conveniens so that US companies exporting nuclear goods and services might be more likely to avoid exposure to costs and liability in US courts. The Ninth Circuit’s invitation to the State Department and the court’s ultimate decision in this case may strengthen or weaken that position in future cases in which the CSC does not control.