Petition for Writ of Certiorari — Tamia Banks, et al., Petitioners v. Cotter Corporation, et al.

No. _____________

In the

Supreme Court of the United States

_________________________

TAMIA BANKS, RONNIE HOOKS, JOEL HOGAN, KENNETH NIEBLING, KENDALL LACY, TANJA LACEY, WILLIE CLAY, BOBBIE JEAN CLAY, ANGELA STATUM,

AND MISSOURI RENTALS COMPANY, LLC, ON BEHALF

OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

Petitioners,

V.

COTTER CORPORATION, COMMONWEALTH EDISON

COMPANY, DJR HOLDINGS, INC., AND ST. LOUIS

AIRPORT AUTHORITY,

Respondents.

_________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

_________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________

RYAN A. KEANE

BARRY COOPER

Keane Law LLC

Counsel of Record

7711 Bonhomme Ave

CELESTE BRUSTOWICZ

Suite 600

VICTOR COBB

St. Louis, MO 63105

Cooper Law Firm L.L.C.

1525 Religious Street

New Orleans, LA 70130

(504) 399-0009

bcooper@clfnola.com

KEVIN THOMPSON

Thompson Barney

2030 Kanawha Blvd

Charleston, WV 25311

ANTHONY D. GRAY

Johnson Gray, LLC

319 N. 4th St., Ste. 212

St. Louis, MO 63102

i

QUESTIONS PRESENTED

The Price Anderson Act, 42 U.S.C. § 2210 et seq.,

amended the Atomic Energy Act, 42 U.S.C. § 2011 et

seq, to provide certain federal licensees with a system of private insurance, government indemnification, and limited liability for claims of “public liability” defined in pertinent part as “any legal liability

arising out of or resulting from a nuclear incident”.

El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 119

S. Ct. 1430, 143 L. Ed. 2d 635 (1999) (citing 42

U.S.C. § 2014(w)). As Justice Gorsuch found: “[t]he

presence of a nuclear incident is the hallmark of a

public liability action.” Cook v. Rockwell Int'l Corp.,

618 F.3d 1127, 1140 (10th Cir. 2010).

The first question presented is whether there has

been a “nuclear incident” such that the Price Anderson Act is applicable and provides original jurisdiction when the Congressional compensation mechanism provided by the Price Anderson Act is not implicated by the conduct giving rise to a Plaintiff’s

claims.

28 U.S.C. § 1291 provides United States Courts of

Appeals with jurisdiction to hear appeals from all

final decisions of the district courts of the United

States.

The second question presented is whether an order by a federal district court severing a primary

claim from a related contribution claim, remanding

the primary claim to state court, and keeping federal

jurisdiction over the contribution claim constitutes a

“final decision” under 28 U.S.C. § 1291.

ii

PARTIES TO THE PROCEEDING BELOW

Petitioners Tamia Banks, Ronnie Hooks, Joel Hogan, Kenneth Niebling, Kendall Lacy, Tanja Lacy,

Willie Clay, Bobbie Jean Clay, Angela Statum, and

Missouri Rentals Company, LLC were the plaintiffs

before the District Court and plaintiffs-appellees in

the Court of Appeals.

Respondents Cotter Corporation, Commonwealth

Edison Company, DJR Holdings, Inc. and St. Louis

Airport Authority were defendants before the District Court. Cotter Corporation was defendantappellant in the Court of Appeals and Commonwealth Edison Company, DJR Holdings, Inc. and St.

Louis Airport Authority were defendants in the

Court of Appeals.

RULE 29.6 DISCLOSURE STATEMENT

Petitioner Missouri Rentals Company, LLC has no

parent corporation, and there is no publicly held corporation that owns 10% or more of its stock.

RELATED PROCEEDINGS

U.S. Court of Appeals for the Eighth Circuit: In re:

Cotter Corporation, (N.S.L.), No. 21-1160; Banks v.

Cotter Corporation, No. 21-1165 (January 7, 2022)

U.S. District Court, Eastern District of Missouri:

Banks v. Cotter Corporation, No. 4:20-cv-01227 (December 22, 2020)

U.S. District Court, Eastern District of Missouri:

Banks v. Cotter Corporation, No. 4:18-cv-00624 (December 22, 2020)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS BELOW .......... ii

RULE 29.6 DISCLOSURE STATEMENT ................ ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ..................................... vi

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE .................................... 4

I. History and Framework of the Price Anderson

Act ......................................................................... 4

A. PAA Enacted in 1957 – The Framework is Established, and “Nuclear Incident” is Defined ........................................... 4

B. 1966 Amendments – “Extraordinary

Nuclear Occurrence” is Defined and

Incorporated into the Definition of

“Nuclear Incident”........................................... 6

C. 1975 Amendments – Government Indemnification Phased Out for NRC

Licensees ......................................................... 7

D. 1988 Amendments – Response to

Three Mile Island ............................................ 8

II. Facts of This Case ................................................ 9

III. The Proceedings Below ...................................... 11

A. First Remand ................................................ 11

B. State Court Proceedings ............................... 12

C. Second Remand ............................................. 13

iv

D. Eighth Circuit Reverses ............................... 15

REASONS FOR GRANTING THIS WRIT .............. 17

I. Interpretation of the Price Anderson Act’s Scope

is of National Importance and Lower Court

Decisions Are Not Consistent ............................ 17

A. The Eighth Circuit Decision Undermines the Foundation on Which the

PAA is Built Creating an Issue of National Importance .......................................... 18

B. The Eighth Circuit Decision is Contrary to Congressional Intent and Ignores the Context, History, Structure

and Purpose of the Act .................................. 19

C. The Eighth Circuit’s Holding Conflicts

with Silkwood................................................ 23

D. The Eighth Circuit Ignores the NRC

Which Should Be Given Deference............... 24

E. Interpretation of the PAA’s Scope Is

Inconsistent Among Lower Courts ............... 26

II. The Eighth Circuit’s Holding That the District

Court’s Order Was a “Final Decision” Under 28

U.S.C. § 1291 Creates a Circuit Split Between

the Eighth and Fourth Circuits ......................... 28

A. The Fourth Circuit Concludes That

Severance and Remand of State Law

Claims from Third-Party Contribution Claims Does Not Constitute a

Final Decision Under 28 U.S.C. §

1291 .............................................................. 28

B. The Eighth Circuit Concludes That

Severance and Remand of State Law

Claims from Third-Party Contribu-

v

tion Claims Does Constitute a Final

Decision Under 28 U.S.C. § 1291 ................. 29

C. The Eighth Circuit’s Decision Is Incorrect ............................................................ 31

CONCLUSION ......................................................... 32

APPENDICES

A. Court of appeals opinion ..................................... 1a

B. Second remand opinion .................................... 16a

C. State court order ............................................... 34a

D. First remand opinion ........................................ 38a

E. Court of appeals order denying panel

rehearing and rehearing en banc ..................... 61a

F. 42 U.S.C. § 2210(a) ........................................... 62a

G. 42 U.S.C. § 2210(c) ............................................ 63a

H. 42 U.S.C. § 2210(d) ........................................... 64a

I. 42 U.S.C. § 2210(e) ........................................... 67a

J. 42 U.S.C. § 2210(k) ........................................... 69a

K. 42 U.S.C. § 2210(n) ........................................... 71a

L. 42 U.S.C. § 2210(p) ........................................... 76a

M. 42 U.S.C. § 2014(j) ............................................ 77a

N. 42 U.S.C. § 2014(k) ........................................... 78a

O. 42 U.S.C. § 2014(p) ........................................... 79a

P. 42 U.S.C. § 2014(q) ........................................... 80a

Q. 42 U.S.C. § 2014(w) .......................................... 81a

R. 42 U.S.C. § 2014(hh) ......................................... 82a

vi

TABLE OF AUTHORITIES

Cases

ABF Freight Sys., Inc. v. N.L.R.B.,

510 U.S. 317, 114 S. Ct. 835, 127 L. Ed. 2d 152

(1994) .................................................................... 25

Campbell-McCormick, Inc. v. Oliver,

874 F.3d 390 (4th Cir. 2017) ...................... 4, 28, 29

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) .................................... 2, 20, 25

Chickasaw Nation v. United States,

534 U.S. 84, 122 S. Ct. 528, 151 L. Ed. 2d 474

(2001) .................................................................... 20

Cook v. Rockwell Int'l Corp.,

618 F.3d 1127 (10th Cir. 2010) ............................ 21

Dolan v. U.S. Postal Serv.,

546 U.S. 481, 126 S. Ct. 1252, 163 L. Ed. 2d 1079

(2006) .................................................................... 20

Duke Power Co. v. Carolina Env't Study Grp., Inc.,

438 U.S. 59 (1978) ................................................ 22

El Paso Nat. Gas Co. v. Neztsosie,

526 U.S. 473 (1999) .............................................. 24

Est. of Ware v. Hosp. of the Univ. of Pennsylvania,

871 F.3d 273 (3d Cir. 2017) ........................ 4, 26, 27

vii

Gaming Corp. of Am. v. Dorsey & Whitney,

88 F.3d 536 (8th Cir. 1996) .................................. 17

Gilberg v. Stepan Co.,

24 F. Supp. 2d 325 (D.N.J. 1998) ................... 11, 27

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc.,

484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306

(1987) .................................................................... 20

Heinrich ex rel. Heinrich v. Sweet,

62 F. Supp. 2d 282 (D. Mass. 1999) ............... 11, 27

In re TMI Litig. Cases Consol. II,

940 F.2d 832 (3d Cir. 1991) .................................. 19

Irwin v. CSX Transp., Inc.,

No. 3:10-CV-300, 2011 WL 976376 (E.D. Tenn.

Mar. 16, 2011) ................................................. 11, 27

Joseph v. Sweet,

125 F. Supp. 2d 573 (D. Mass. 2000) ............. 11, 27

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100, 130 S. Ct. 599, 175 L. Ed. 2d 458

(2009) .................................................................... 31

Osborn v. Bank of the United States,

22 U.S. 738 (1824) ................................................ 19

Pac. Gas & Elec. v. State Energy Res. Conservation &

Dev. Comm'n,

461 U.S. 190 (1983) .............................................. 18

viii

Samples v. Conoco, Inc.,

165 F. Supp. 2d 1303 (N.D. Fla. 2001)........... 11, 27

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) .......................................... 3, 24

State St. Bank & Tr. Co. v. Brockrim, Inc.,

87 F.3d 1487 (1st Cir. 1996) ................................. 31

Strong v. Republic Servs., Inc.,

283 F. Supp. 3d 759 (E.D. Mo. 2017) ............. 11, 27

United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218

(1966) .................................................................... 14

United States v. Mellon Bank, N. A.,

545 F.2d 869 (3d Cir. 1976) .................................. 31

Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ.,

550 U.S. 81, 127 S. Ct. 1534, 167 L. Ed. 2d 449

(2007) .................................................................... 21

Statutes

11 U.S.C. § 362 ......................................................... 13

28 U.S.C. § 1291 ................................................ passim

28 U.S.C. § 1292 ....................................................... 16

28 U.S.C. § 1367 ....................................................... 16

28 U.S.C. § 1441 ....................................................... 16

28 U.S.C. § 1442 ................................................ passim

ix

28 U.S.C. § 1447 ....................................................... 16

42 U.S.C. § 2014 ................................................ passim

42 U.S.C. § 2210 ................................................ passim

PL 85-256 (HR 7383), September 2, 1957,

71 Stat. 576 ..................................................... 4, 5, 6

Pub. L. 89-645 (S 3820), October 13, 1966,

80 Stat. 891 ............................................................. 7

PL 94–197 (HR 8631), December 31, 1975

89 Stat. 1111 ........................................................... 8

PL 100–408 (HR 1414), August 20, 1988

102 Stat. 1066 ......................................................... 8

Regulations

10 C.F.R. § 8.2(c) (1998) ........................................... 22

Other Authorities

S. REP. 85-296, 1957 U.S.C.C.A.N. 1803 ............ 6, 21

S. Rep. 100-70, 1988 U.S.C.C.A.N. 1424 ............... 7, 8

S. REP. 100-218, 1988 U.S.C.C.A.N. 1476 ................ 8

NUREG/CR-6617, The Price-Anderson Act –

Crossing the Bridge to the Next Century:

A Report to Congress (1998), available at

https://www.nrc.gov/docs/ML1217/

ML12170A857.pdf ................................................ 25

1

PETITION FOR A WRIT OF CERTIORARI

Tamia Banks, Ronnie Hooks, Barbara Hooks, Joel

Hogan, Kenneth Niebling, Kendall Lacy, Tanja Lacy,

Willie Clay, Bobbie Jean Clay, Angela Statum, and

Missouri Rentals Company, LLC respectfully petition for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eighth

Circuit.

OPINIONS BELOW

The opinion of the court of appeals is published at

In re Cotter Corp., (N.S.L.), 22 F.4th 788 (8th Cir.

2022). The first and second district court remand

opinions are not published. They are found at Banks

v. Cotter Corp., No. 4:18-CV-00624 JAR, 2019 WL

1426259 (E.D. Mo. Mar. 29, 2019) and Banks v. Cotter Corp. (N.S.L.), No. 4:20-CV-01227-JAR, 2020 WL

7625088 (E.D. Mo. Dec. 22, 2020) respectively, and

in the Appendix.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. §

1254(1) as the judgment of the court of appeals was

entered on January 7, 2022, and denials of rehearing

and rehearing en banc occurred on February 11,

2022.

STATUTORY PROVISIONS INVOLVED

The Price Anderson Act is comprised of 42 U.S.C.

§ 2210 with relevant definitions in 42 U.S.C. § 2014.

Additionally, 28 U.S.C. § 1291 on what is a final

judgment. Relevant provisions are found in the Appendix.

2

INTRODUCTION

This case raises two important questions of law:

one substantive, one procedural. First, regards the

scope of the Price Anderson Act (“PAA”) and its jurisdictional provision in 42 U.S.C. § 2210(n)(2) which

provides that “with respect to a public liability action

arising out of or resulting from a nuclear incident,

the United States district court in the district where

the nuclear incident takes place…shall have original

jurisdiction.”

The Eighth Circuit determined that the PAA is

applicable to Petitioners’ claims against Respondent

Cotter Corporation even though Cotter was never a

participant in the PAA’s insurance and indemnification scheme and never conducted any activities related to a contract with the Atomic Energy Commission (now the Department of Energy).

In so concluding, the Eighth Circuit relied on the

dictionary definition of the word “occurrence” and

failed to consider the context in which the term “nuclear incident” is used, that is the PAA’s insurance

and indemnification scheme. The Eighth Circuit’s

refusal to look past the plain meaning is particularly

perplexing considering Congress defined the term

“occurrence” in a Senate Report that accompanied

the PAA’s enactment, which the Eighth Circuit decision fails to acknowledge or account for.

Additionally, the Eighth Circuit also fails to

acknowledge or account for the Nuclear Regulatory

Commission’s (“NRC”) interpretation contained in a

report submitted to Congress pursuant to the PAA

which confirms that the PAA is not applicable to defendants such as Cotter. This interpretation should

be given deference pursuant to Chevron, U.S.A., Inc.

3

v. NRDC, Inc., 467 U.S. 837, 844 (1984). Furthermore, the Eighth Circuit decision is contrary this

Court’s decision in Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) with respect to the applicability

of the PAA.

The Eighth Circuit’s failure to recognize that the

term “nuclear incident” is a term of art used in the

context of the PAA’s insurance and indemnification

scheme results in a decision that expands the scope

of the PAA well beyond what Congress ever intended. Lower courts have struggled to apply this statute

and each court of appeals to address the issue, including the Eighth Circuit, has held that the PAA is

applicable and provides federal court jurisdiction

even when the PAA’s insurance and indemnification

scheme is not implicated. It is necessary for this

Court to correct the mistakes made by the Eighth

Circuit with respect to the scope of the PAA by giving the terms of the PAA the meaning that Congress

intended.

Second, this case raises an important procedural

question regarding what constitutes a “final decision” under 28 U.S.C. § 1291. The Eighth Circuit

ruled that the district court’s severance and remand

of the Plaintiffs’ claims from the remaining thirdparty contribution claims “effectively put Cotter out

of federal court for Plaintiffs’ claims” thereby constituting a final judgment under § 1291.

This ruling puts the Eighth Circuit in direct conflict with the Fourth Circuit on the same issue. In a

procedurally identical case, the Fourth Circuit held

that when a district court retained jurisdiction over

third-party contribution claims, that did not constitute a final decision as generally understood for the

4

purposes of § 1291. Campbell-McCormick, Inc. v. Oliver, 874 F.3d 390, 395 (4th Cir. 2017). This is directly contradictory to the Eighth Circuit’s ruling. As

such, it is necessary for this Court to clarify the application to circumstances such as these to prevent

the Circuits from reaching polar opposite conclusions

when the same set of facts are presented.

STATEMENT OF THE CASE

I. History and Framework of the Price Anderson Act

An analysis of the PAA’s history is critical to understanding congressional intent with respect to

what an “occurrence” is within the definition of a

“nuclear incident”. This is particularly true because

the PAA is “complicated, interlocking, and use[s]

words in unintuitive ways.” Est. of Ware v. Hosp. of

the Univ. of Pennsylvania, 871 F.3d 273, 279 (3d Cir.

2017). Specifically, it is important to recognize what

Congress intended when it enacted the definition of

“nuclear incident” in 1957 and precisely how Congress changed the scope of the PAA with the 1988

amendments.

A. PAA Enacted in 1957 – The Framework

is Established, and “Nuclear Incident” is Defined.

The PAA was enacted in 1957 to protect the public

by ensuring adequate funds for liability claims and

to encourage the development of the atomic energy

industry by providing government indemnification

and a cap on liability for participating licensees and

contractors. PL 85-256 (HR 7383), September 2,

1957, 71 Stat. 576.

5

For AEC (now NRC) licensees, the PAA required

certain licensees to maintain “financial protection” to

cover “public liability” claims. Id. (Codified as

amended at 42 U.S.C. §§ 2210(a), (b)). In exchange

the PAA required the licensee to execute and maintain an indemnity agreement with the AEC whereby, after financial protection is exhausted, the AEC

provides indemnification up to $500,000,000 to cover

“public liability arising out of or in connection with

the licensed activity.” Id. (Codified as amended at 42

U.S.C. § 2210(c)).

For AEC (now DOE) contractors, the PAA authorized the AEC to enter into agreements of indemnification with contractors for “activities under contracts for the benefit of the United States” providing

$500,000,000 to cover “public liability arising out of

or in connection with the contractual activity.” Id.

(Codified as amended at 42 U.S.C. § 2210(d)). Cotter

has never conducted any activities related to a contract with the AEC.

To encourage the development of the atomic energy industry, the PAA capped aggregate liability for a

single “nuclear incident” at the amount of financial

protection required plus $500,000,000 in government

indemnification. Id. (Codified as amended at 42

U.S.C. § 2210(e)).

The PAA defined “public liability” in relevant part

as “any legal liability arising out of or resulting from

a nuclear incident”. Id. (Codified as amended at 42

U.S.C. § 2014(w)). “Nuclear incident” was defined as:

Any occurrence within the United States causing bodily injury, sickness, disease, or death, or

loss of or damage to property, or for loss of use

of property, arising out of or resulting from the

6

radioactive, toxic, explosive, or other hazardous

properties of source, special nuclear, or byproduct material.

Id. (Codified as amended at 42 U.S.C. § 2014(q).

The Senate Report that accompanied the PAA’s

enactment provided that:

…the occurrence which is the subject of this

definition is that event at the site of the licensed activity, or activity for which the

commission has entered in to a contract…That is why the definition of ‘nuclear

incident’ has the phrase ‘any occurrence causing bodily injury, sickness, disease, or death’

and why the definition of ‘public liability’ is

tied to any legal liability arising out of, or resulting from, a nuclear incident.

S. REP. 85-296, 1957 U.S.C.C.A.N. 1803, 1817-18

(emphasis added).

“Licensed activity” was defined as “an activity licensed pursuant to this Act and covered by the provisions of section [2210(a)].” PL 85-256 (HR 7383),

September 2, 1957, 71 Stat. 576. (Codified at 42

U.S.C. § 2014(p)). This definition has remained unchanged. Cotter has never conducted “licensed activity” pursuant to the PAA because they have never

maintained financial protection pursuant section

2210(a).

B. 1966 Amendments – “Extraordinary Nuclear Occurrence” is Defined and Incorporated into the Definition of “Nuclear Incident”

The PAA was amended in 1966 to add a “new concept to the statutory scheme that provided for a

7

waiver of traditional tort law defenses in the event of

an accident determined to be an ‘extraordinary nuclear occurrence’ (ENO).” S. Rep. 100-70, 14, 1988

U.S.C.C.A.N. 1424, 1427. The definition of “nuclear

incident” was amended by inserting “including an

extraordinary nuclear occurrence.” Pub. L. 89-645 (S

3820), October 13, 1966, 80 Stat. 891.

“Extraordinary nuclear occurrence” was defined

as:

any event causing a discharge or dispersal of

source, special nuclear, or byproduct material

from its intended place of confinement in

amounts offsite, or causing radiation levels

offsite, which the Commission determines to be

substantial…As used in this subsection, 'offsite'

means away from 'the location" or 'the contract

location" as defined in the applicable Commission indemnity agreement, entered into pursuant to section [2210].

Id. (Codified as amended at 42 U.S.C. § 2014(j)).

In addition, 42 U.S.C. § 2210(n)(2) was added allowing for removal of nuclear incident claims

deemed substantial by the NRC, constituting an

ENO. The 1966 amendments did not change 2210(a).

C. 1975 Amendments – Government Indemnification Phased Out for NRC Licensees

The 1975 Amendments phased out federal indemnity for certain NRC licensees and replaced it with a

self-insurance pool-type arrangement including after-the-fact assessments for participating licensees.

S. Rep. 100-70, 15, 1988 U.S.C.C.A.N. 1424, 1428. If

damages from a nuclear incident were “likely to ex-

8

ceed the coverage available from [financial protection], each NRC reactor licensee would be assessed

up to $5 million to pay a pro-rated share of the damages in excess.” Id. This change occurred after Cotter’s operations at issue were conducted and after its

source material license was terminated. PL 94–197

(HR 8631), December 31, 1975, 89 Stat 1111.

D. 1988 Amendments – Response to Three

Mile Island

In 1979, the Three Mile Island (“TMI”) nuclear

reactor located in Pennsylvania failed. This facility

was licensed and indemnified pursuant to the PAA

and maintained the required financial protection.

See S. REP. 100-218, 3, 56, 1988 U.S.C.C.A.N. 1476,

1478 The NRC did not consider the accident to be

substantial enough to constitute an ENO. Because

the PAA only allowed a federal forum for nuclear incidents deemed “substantial” by the NRC, thousands

of cases were filed in both state and federal courts. S.

REP. 100-218, 13, 1988 U.S.C.C.A.N. 1476, 1488.

In response, Congress revised 42 U.S.C. §

2210(n)(2) substituting the previously defined term

“nuclear incident” in the place of “Extraordinary Nuclear Occurrence” to allow for removal of claims

against licensees that are not substantial enough to

be an “ENO”. PL 100–408 (HR 1414), August 20,

1988, 102 Stat 1066. Additionally, a federal cause of

action called a “public liability action” for legal liability resulting from a “nuclear incident” was created.

Id. Critically, the definitions of “nuclear incident”,

“licensed activity” and “public liability” were not

changed. Id.

9

II. The Facts of This Case

From 1942 to 1957, Mallinckrodt processed uranium ore under a contract with the Manhattan Engineer District (“MED”) (later the Atomic Energy

Commission (“AEC”)) at a site known as the St. Louis Downtown Site (“SLDS”). CA8 Joint Appendix

(“JA”) 528. The radioactive wastes produced by

Mallinckrodt’s processing were stored at a site near

the Lambert Airport, known as the St. Louis Airport

Site (“SLAPS”). Id.

In 1966, Continental Milling and Mining (“Continental”) purchased these stockpiled wastes from the

U.S. Government, assuming full responsibility for

the care and custody of the wastes. JA 711. Continental moved them from SLAPS to a site on Latty

Avenue located adjacent to Coldwater Creek. JA 783.

When Continental went bankrupt in 1967, the radioactive wastes at the Latty site were acquired by

Commercial Discount Corporation which dried some

of the wastes and shipped it by railcars to Respondent Cotter Corporation’s processing facility in Canon

City, Colorado. Id.

In 1969, Cotter purchased the radioactive wastes

remaining at the Latty site, agreeing to take all necessary precaution in the storage, handling, and

shipping of the purchased wastes to prevent injury

to adjoining property owners and prevent the wastes

from encroaching on the property adjoining the Latty site. JA 763-764. Cotter also agreed to restore the

Latty site. Id.

Between 1970 and 1973, Cotter dried the radioactive wastes at the Latty site and shipped them to its

Canon City processing facility via railcars loaded on

the banks of Coldwater Creek. JA 784. In 1973, Cot-

10

ter spread the remaining wastes over the Latty site

and mixed it with contaminated topsoil before dumping it at the West Lake Landfill. JA 794. In 1974,

Cotter certified to the AEC that the Latty site was

decontaminated. JA 835. In August 1976, however,

the NRC discovered radiation levels at the Latty site

exceeded acceptable release limits and that soil

samples contained uranium and thorium. JA 793808.

Cotter was issued a source material license for its

Latty operations, however, Cotter never maintained

financial protection pursuant to § 2210(a) nor did it

have an indemnification agreement with the AEC

pursuant to § 2210(c) for its Latty operations. And

Cotter’s activities at Latty were not related to any

AEC contract such that § 2210(d) would provide indemnification.

Cotter’s Latty operations were sloppy and allowed

toxic waste to migrate onto other properties including Coldwater Creek which has flooded many times

since dispersing the waste well beyond the Latty

site. Recognizing the dangers present, remediations

have taken place at various locations along Coldwater Creek, including public parks and recreational

sites. The same cannot be said for Petitioners’ homes

which remain contaminated with radioactive wastes.

Petitioners filed this suit on February 18, 2018,

against Cotter and others in Missouri state court as

a class action based entirely on Missouri tort law.

The petition includes counts for trespass, nuisance,

negligence, and strict liability.

In April 2018, Respondents removed claiming federal question jurisdiction under the PAA which it

said preempted all of Plaintiffs’ state law causes of

11

action. Though knowing full well of Mallinckrodt’s

original processing of the waste in downtown St.

Louis, Cotter did not make it or anyone else a thirdparty defendant when it removed.

III. The Proceedings Below

A. First Remand

The district court granted Plaintiffs’ remand motion holding the PAA was inapplicable to Plaintiffs’

state law claims as neither Cotter, nor any other defendant, possessed an applicable license or indemnity agreement required by the PAA. (“2019 Remand

Order”) App. 38a-60a.

Acknowledging that there are many conflicting

opinions as to whether a license or indemnity

agreement is required for federal subject matter jurisdiction pursuant to the PAA, the district court

agreed with several courts, including one in the

same district, holding the PAA is not applicable in

the absence of an applicable license or indemnity

covering the activities giving rise to liability. App.

52a-53a. (citing Gilberg v. Stepan Co., 24 F. Supp. 2d

325, 343 (D.N.J. 1998); Heinrich ex rel. Heinrich v.

Sweet, 62 F. Supp. 2d 282, 297 (D. Mass. 1999); Joseph v. Sweet, 125 F. Supp. 2d 573, 576 (D. Mass.

2000); Samples v. Conoco, Inc., 165 F. Supp. 2d 1303,

1321–22 (N.D. Fla. 2001); Irwin v. CSX Transp.,

Inc., No. 3:10-CV-300, 2011 WL 976376, at *2 (E.D.

Tenn. Mar. 16, 2011); Strong v. Republic Servs., Inc.,

283 F. Supp. 3d 759 (E.D. Mo. 2017)

The district court judge concluded that without an

applicable license or indemnity agreement, there can

be no “occurrence,” that is, no event at the site of licensed activity, that would constitute a “nuclear incident.” Id. The district court notes the legislative

12

history which provides that the word “occurrence” as

used in the definition of “nuclear incident” means

“that event at the site of licensed activity, or activity

for which the Commission has entered into a contract, which may cause damage.” Id. at 53a, 55a. The

district court’s reasoning focused on the PAA’s purpose, i.e., to protect the public and encourage development of the atomic energy industry by providing

certain licensees with a system of private insurance,

government indemnification, and limited liability for

certain nuclear tort claims. Id. at 52a – 53a.

In light of the PAA’s concerns related to liability

limitation and indemnification, the district court was

not convinced that the PAA’s 1988 amendments

were meant to extend the reach of the PAA to activities not covered by applicable licenses or indemnity

agreements. Id. at 58a. Rejecting the contention that

the PAA is now so broad as to cover any claim

caused by certain nuclear materials, the district

court held that whether as a matter of statutory construction or the structure and history of the PAA, a

license or indemnity agreement is a prerequisite for

federal subject matter jurisdiction and that Cotter’s

source material license was not a basis for federal

subject matter jurisdiction. Id. at 54a and 59a.

B. State Court Proceedings

Back in state court, Cotter filed a Motion to Dismiss again arguing the PAA preempts Plaintiffs

state law claims and provides the exclusive cause of

action for claims arising from nuclear incidents or

radiation injuries. Alternatively, Cotter argued that

Plaintiffs failed to sufficiently allege their state law

causes of action.

13

Plaintiffs filed a Second Amended Petition (JA

510) and Cotter refiled its Motion to Dismiss. Following a lengthy March 2020 hearing the state court

judge granted in part and denied in part Cotter’s

motion and permitted Plaintiffs to proceed with discovery and file a Third Amended Complaint. (App.

34a-37a)

Before that discovery concluded, on June 30,

2020, Cotter filed a Third-Party Petition (JA 553)

seeking state-based contribution from several thirdparty defendants, including Mallinckrodt. JA 553.

Cotter’s contribution claim came over two years after

this suit was instituted and over one year after the

first remand. Mallinckrodt then removed under 28

U.S.C. § 1442 et seq., which provides for federal jurisdiction over cases involving federal officers, as

well as the PAA. (JA 264). No reason in law or fact

prevented Cotter from naming Mallinckrodt at the

outset.

C. Second Remand

Immediately after removal, Mallinckrodt filed for

bankruptcy resulting in a stay pursuant to 11 U.S.C.

§ 362.1 JA 572. Plaintiffs then filed a Motion to Sever

and Remand All Non-Third-Party Claims. JA 575.

After full briefing, the district court determined it

would retain jurisdiction over the third-party demand against Mallinckrodt and severed and remanded all other claims. App. 16a-33a. The district

court rightfully believed the sole question before it

was whether supplemental jurisdiction over Plain-

Mallinckrodt’s bankruptcy intentions were reported in the

press before it was added as a third-party defendant.

1

14

tiffs’ state law claims should be exercised or not. Id.

at 20a - 21a.

In severing and remanding, the judge considered

these facts: the progress in state court since remand,

the total lack of litigation progress in federal court,

and Mallinckrodt’s post-removal bankruptcy automatic stay. Id. at 19a. The court reasoned that the

only claim with potential to give rise to federal question jurisdiction was Cotter’s contribution claim

against Mallinckrodt. Id. at 23a. Because the court

found that Plaintiffs’ state law claims substantially

predominated over Mallinckrodt’s federal defenses,

the court considered and commented on each of the

“Gibbs factors”.” Id. at 23a-28a. (citing United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 86 S. Ct.

1130, 16 L. Ed. 2d 218 (1966)).

Citing “meaningful precedent” for severing contribution claims, the district court rejected Cotter’s argument that Mallinckrodt was an indispensable party due to Cotter’s great delay in naming Mallinckrodt:

[S]everance is appropriate, this Court finds in

its discretion that Mallinckrodt is not an indispensable party. The Court notes that over two

years passed before Mallinckrodt was impleaded in state court and no Defendant appears to

have filed a motion to dismiss in state court alleging failure to include a necessary party.

Such inaction is inconsistent with Cotter's argument here that the case simply cannot proceed without Mallinckrodt's presence.

Id. at 31a.

The district court concluded:

15

The Plaintiffs in this case are Missouri citizens

and property owners who seek damages and injunctive relief under Missouri law based on

events which took place entirely in Missouri.

(Doc. 1-6). After an earlier remand, Cotter's

Third-Party Petition seeking contribution

against Mallinckrodt, who has a potential federal defense under the PAA and 28 U.S.C. §

1442, provides the only potential avenue for

federal jurisdiction in this case. Mallinckrodt' s

federal defense is only relevant, however, in

the event that Plaintiffs succeed in their claims

against Cotter. While the claim against

Mallinckrodt stems, from a common nucleus of

operative fact as Plaintiffs' state law claims,

the state law claims substantially predominate,

and the Gibbs factors favor severance and remand. Mallinckrodt is not an indispensable

party to the litigation, and its presence as

Third-Party Defendant does not change this

Court's prior determination that there is no

federal jurisdiction under the PAA. Id. at 32a33a.

D. Eighth Circuit Reverses

Cotter appealed and also sought a supervisory

writ; plaintiffs opposed also filing a motion to dismiss for lack of jurisdiction.

The Court of Appeals for the Eighth Circuit reversed. App. 1a-15a. Before determining the merits

of the appeal, the Eighth Circuit considered the

question of whether the court had jurisdiction to

hear the appeal. Id. at 4a. Cotter asserted jurisdiction under 28 U.S.C. § 1291, 1367, and 1442. Plaintiffs argued that:

16

• 28 U.S.C. § 1291 prohibited appeal because the

December 2020 remand was not final and did

not meet the stringent requirements of the collateral order doctrine.

• 28 U.S.C. § 1367 did not allow for a right of appeal because appeals can only lie when the

judgement is final, or the collateral order doctrine applies.

• 28 U.S.C. § 1442 did not allow a right of appeal

because the December 2020 remand did not

consider whether the removing third-party defendant was or was not a government contractor and the district court retained jurisdiction

over the removing third-party defendant thus

not activating the § 1447 exception.

• 28 U.S.C. § 1447 prohibited appeal of the March

2019 remand because it was based on subject

matter jurisdiction and no exception applied.

• 28 U.S.C. § 1441 did not allow a third-party defendant to remove.

• 28 U.S.C. § 1292 did not permit removal because Defendants did not request nor did the

district court certify the decision for interlocutory appeal.

Without providing any rationale, the Eighth Circuit determined that “the remand order is a reviewable final judgment under § 1291 because it effectively put Cotter out of federal court for Plaintiffs’

claims.” App. 4a.

Having found jurisdiction to hear the appeal existed, the court then held that contrary to the district court’s ruling, the PAA’s jurisdictional grant, 42

U.S.C. § 2210(n)(2), provides federal question jurisdiction over all “nuclear incidents,” regardless of

17

whether a defendant had an applicable license or indemnity agreement. Id. at 14a.

Applying the plain meaning of the word “occurrence”, the court determined that a “nuclear incident” under the PAA means “something that takes

place” within the United States, causing bodily injury or property damage, and arising out of the properties of source, special nuclear, or byproduct material.

Id. at 9a - 10a. The court said this definition encompasses even those nuclear disasters where a defendant lacks an applicable indemnity agreement. Id.

The Eighth Circuit held that because the PAA

provides federal question jurisdiction over the claims

against Cotter and a “district court has no discretion

to remand a claim that states a federal question,”

the district court abused its discretion. Id. at 14a15a. (citing Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996)).

The court of appeals denied panel rehearing and

rehearing en banc. App.61a.

REASONS FOR GRANTING THIS WRIT

It is respectfully submitted that because Cotter’s §

2210 status is uncontested, this Court can and

should answer the questions: Does federal question

jurisdiction exist under the PAA when its substantive commands are unfulfilled? And is a judgment

final under § 1291 when the district court retains jurisdiction over the third-party contribution claims?

I. Interpretation of the Price Anderson Act’s

Scope is of National Importance and Lower

Court Decisions Are Not Consistent

18

A. The Eighth Circuit Decision Undermines the Foundation on Which the PAA is

Built Creating an Issue of National Importance

There is no doubt as to the national importance of

the Price Anderson Act which was enacted as an

amendment to the Atomic Energy Act to ensure adequate funds would be available to satisfy liability

claims and to remove the deterrent of uninsurable

liability associated with catastrophic losses emanating from nuclear power plants. Pac. Gas & Elec. v.

State Energy Res. Conservation & Dev. Comm'n, 461

U.S. 190 (1983). The Eighth Circuit’s determination

that the PAA is applicable and provides original jurisdiction regardless of whether a defendant has an

applicable license or indemnity agreement pursuant

to the PAA undermines the entire compensation

mechanism created by the PAA.

The financial protection requirement found in 42

U.S.C. § 2210(a) is the foundation of the PAA’s indemnification scheme. In exchange for maintaining

financial protection2, the government provides indemnification up to $500 million pursuant to 42

U.S.C. § 2210(c) which covers “public liability arising

out of or in connection with the licensed activity”.

Despite the fact that Cotter never maintained financial protection under § 2210(a) or had an indemnification agreement with the government pursuant to §

Financial protection can be compared to primary insurance

coverage, which is to be exhausted before government indemnification kicks in.

2

19

2210(c), the Eighth Circuit nonetheless determined

that the PAA is applicable to them.3

The implications of this decision threaten the entire viability of the PAA. The first implication is that

the PAA provides jurisdiction even though there is

no source of PAA funds. This would be a violation of

Article III of the United States Constitution because

the PAA would be nothing more than a jurisdictional

grant. In re TMI Litig. Cases Consol. II, 940 F.2d

832, 849 (3d Cir. 1991) (citing Osborn v. Bank of the

United States, 22 U.S. 738 (1824)). Alternatively, the

second implication is that the PAA’s substantive

provisions are applicable, and the government pays

anyway resulting in an epic windfall for Cotter for

its negligent operations. Why maintain financial

protection if the government pays? Neither of these

results was the intention of Congress and each raises serious questions as to the PAA’s constitutionality

and viability.

B. The Eighth Circuit Decision is Contrary

to Congressional Intent and Ignores the

Context, History, Structure and Purpose of

the Act

In determining that Plaintiffs claims constitute a

“nuclear incident” and arise under the PAA even

though Cotter has never been a participant in the

PAA system, the Eighth Circuit fails to consider the

context in which the term “nuclear incident” was dePetitioners note that following the 1975 amendments, which

phased out government indemnification for certain licensees,

there may be circumstances where the PAA is applicable in the

absence of an indemnity agreement. However, this cannot be

the case for Cotter whose license was terminated in 1974, before the 1975 amendments were enacted.

3

20

fined, i.e., the financial protection and government

indemnification compensation mechanism established by the PAA to ensure adequate funds in case

of a “nuclear incident”. In other words, the Eight

Circuit reviewed the relevant terms in a vacuum

without reference to statutory context, structure,

history, and purpose.

As this Court has previously stated, “[t]he definition of words in isolation…is not necessarily controlling in statutory construction. A word in a statute

may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or

phrase depends upon reading the whole statutory

text, considering the purpose and context of the

statute, and consulting and precedents or authorities

that inform the analysis.” Dolan v. U.S. Postal Serv.,

546 U.S. 481, 486, 126 S. Ct. 1252, 163 L. Ed. 2d

1079 (2006).

When a statutory term is undefined or is ambiguous, reference to Congressional intent may be had.

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694

(1984). See also Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 61–62,

108 S. Ct. 376, 98 L. Ed. 2d 306 (1987) (considering

legislative history to interpret Clean Water Act);

Chickasaw Nation v. United States, 534 U.S. 84, 122

S. Ct. 528, 151 L. Ed. 2d 474 (2001) (considering legislative history to interpret Indian Gaming Regulatory Act). “Analysis of legislative history is, of

course, a traditional tool of statutory construction.

There is no reason we must confine ourselves to, or

begin our analysis with, the statutory text if other

tools of statutory construction provide better evi-

21

dence of congressional intent with respect to the precise point at issue.” Zuni Pub. Sch. Dist. No. 89 v.

Dep't of Educ., 550 U.S. 81, 127 S. Ct. 1534, 167 L.

Ed. 2d 449 (2007) (Stevens concurring). Especially if

“the legislative history is pellucidly clear.” Id.

“The presence of a nuclear incident is the hallmark of a public liability action.” Cook v. Rockwell

Int'l Corp., 618 F.3d 1127, 1140 (10th Cir. 2010).

Broken down, a nuclear incident requires three elements: 1) an occurrence, or extraordinary nuclear

occurrence, 2) causing bodily injury, sickness, disease, or death, or loss of or damage to property, or

loss of use of property, and 3) arising out of or resulting from the radioactive, toxic, explosive, or other

hazardous properties of source, special nuclear, or

byproduct material. 42 U.S.C. § 2014(q).

The Eighth Circuit relies solely on the plain

meaning of the word “occurrence” and ignores the

legislative history where Congress precisely defined

the word “occurrence” as used in the definition of

“nuclear incident”:

the occurrence which is the subject of this definition is that event at the site of the licensed activity, or activity for which the

commission has entered in to a contract…That is why the definition of ‘nuclear

incident’ has the phrase ‘any occurrence causing bodily injury, sickness, disease, or death’

and why the definition of ‘public liability’ is

tied to any legal liability arising out of, or resulting from, a nuclear incident.

S. REP. 85-296, 1957 U.S.C.C.A.N. 1803, 1817-18

(emphasis added). Moreover, an interpretation of the

Price-Anderson Act promulgated by the AEC’s Gen-

22

eral Counsel in the Code of Federal Regulations, later expressly relied on this definition of “occurrence”,

noting in particular that, “[t]his definition of ‘occurrence’…is crucial to the Act’s placing of venue under

section [2210(n)(2)].” 10 C.F.R. § 8.2(c) (1998).

From the legislative history, it is clear the only

events Congress intended to constitute a “nuclear

incident,” were an “event at the site of licensed activity, or activity for which the commission has entered

into a contract.” Congress was also clear when it defined “licensed activity” as “an activity licensed pursuant to the [Atomic Energy Act] and covered by the

provisions of 2210(a).” 42 U.S.C. § 2014(p).

In failing to consider the legislative history, the

Eighth Circuit interprets the term “nuclear incident”

as to expand the scope of the PAA to cases where the

PAA’s insurance and indemnification scheme is not

implicated. In doing so, the Eighth Circuit impermissibly determined that Plaintiffs claims against

Cotter “arise under” the PAA when there is no

source of PAA funds to provide compensation for

Cotter’s activities. This is contrary to one of the main

functions of the PAA, to ensure adequate public

compensation in the event of a catastrophic nuclear

accident. Duke Power Co. v. Carolina Env't Study

Grp., Inc., 438 U.S. 59, 83 (1978).

The Eighth Circuit’s reliance on the 1988 amendments to the PAA is misplaced. The decision, along

with other courts of appeal to consider the issue,

make a common misconception about the 1988

amendments. The Eighth Circuit cites the 1986 dictionary definition of the word “occurrence” suggesting the Eighth Circuit considered the term “nuclear

incident” as one enacted with the 1988 amendments.

23

This is clearly wrong as the definition of “nuclear incident”, and its use of the word “occurrence”, was enacted in 1957.

Critically, nothing about the 1988 amendments

changed the definition of “nuclear incident” or “licensed activity”. In failing to consider the legislative

history from when the definition of “nuclear incident” was enacted, the panel misinterprets how

Congress expanded the scope of the PAA. The 1988

amendments only expanded the scope by including

less sever accidents not deemed “substantial”, but

they did not extend the PAA to all entities any time

a claim is based on radioactive materials. Simply

put, the 1988 amendments did nothing to extend the

PAA to NRC licensees such as Cotter who do not

maintain financial protection. The district court got

it right here:

[I]n light of the PAA’s concerns related to liability limitation and indemnification, the Court

is not convinced that the 1988 amendments

were meant to extend the reach of the PAA to

activities not covered by applicable licenses or

indemnity agreements. Defendants’ construction overlooks the original purposes and

framework of the AEA and the PAA - to require

those involved in the nuclear industry to obtain

licenses and maintain financial protections.

App. 60a.

C. The Eighth Circuit’s Holding Conflicts

with Silkwood

While this Court has never fully considered the

24

applicability of the PAA4, this Court’s decision in

Silkwood, 464 U.S. 238 is most on point. The Eighth

Circuit decision brushes this Court’s decision in

Silkwood aside as not applicable because it was entered before the 1988 amendments. App. 13a - 14a.

However, nothing about the 1988 amendments affects the relevant portions of Silkwood. Specifically,

the amendments do not change this Court’s decision

that the “Price-Anderson Act does not apply” where

an NRC licensee does not maintain financial protection under 42 U.S.C. § 2210(a). Silkwood, 464 U.S. at

251–251. Nor do the amendments affect the decision

that the Atomic Energy Act has no preemptive effect

of its own. Id. at 238, 251.

The fact that the 1988 amendments were enacted

after the Silkwood decision is not determinative.

While the 1988 amendments did respond to Silkwood

by adding 42 U.S.C. § 2210(s) to clarify that punitive

damages are not permitted when the United States

would be obligated to make payments under an indemnification agreement, none of the 1988 amendments changed the requirement of financial protection under § 2210(a).

D. The Eighth Circuit Ignores the NRC

Which Should Be Given Deference

4

In El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473 (1999), this

Court determined that a United States District Court, not a

tribal court, makes the decision of whether the PAA is applicable. This decision does not however consider whether an applicable license or indemnity agreement are perquisites for the

PAA to apply. Here, the district court did decide whether the

PAA applied remanding the case to state court twice.

25

Ten years after the 1988 amendments, as required

by section 2210(p) of the PAA, the NRC submitted a

report to Congress providing “an overview of the

Price-Anderson Act and its amendments through the

1988 extension and an update on legal issues pertaining to nuclear insurance and indemnity.” NUREG/CR-6617, The Price-Anderson Act–Crossing the

Bridge to the Next Century: A Report to Congress

(1998) at xi, available at

https://www.nrc.gov/docs/ML1217/ML12170A857.pdf

This report unequivocally provides that not all

NRC licensees are covered by the PAA. “The [PAA]

requires licensees to provide financial protection.”

Id. at xii. “Key parameters of Price-Anderson include: which licensees…are covered.” Id. at xiii.

“Covered licensees include production and utilization

facilities, with commercial nuclear power being the

main concern of Price-Anderson.” Id. The “NRC decided that no apparent need existed to extend PriceAnderson to other classes of materials licensees.” Id.

at 4-5.

As this Court has previously stated, “We have

long recognized that considerable weight should be

accorded to an executive department's construction

of a statutory scheme it is entrusted to administer,

and the principle of deference to administrative interpretations.” Chevron, U.S.A., Inc., 467 U.S. at

844. Moreover, “[b]ecause this case involves that

kind of express delegation, the [executive agency’s]

views merit the greatest deference.” ABF Freight

Sys., Inc. v. N.L.R.B., 510 U.S. 317, 324, 114 S. Ct.

835, 127 L. Ed. 2d 152 (1994). Here, the NRC’s interpretation is consistent with congressional intent

and the PAA’s structure and purpose and should be

given deference.

26

Despite these “well-settled principles” the Eighth

Circuit decision does not acknowledge or account for

the NRC’s interpretation provided in a report that

was required pursuant to Section 2210(p) of the

PAA. This is contrary to precedent established by

this Court and the result is an interpretation that is

contrary to congressional intent and forces Plaintiffs

into a federal forum when their claims are not covered by the PAA and based entirely on state law.

Simply put, the NRC’s interpretation confirms that

Plaintiffs’ claims against Cotter do not arise under

the PAA because Cotter is not covered by the PAA.

The district court did not abuse its discretion in severing and remanding Plaintiffs’ claims against Cotter over which it has no original jurisdiction.

E. Interpretation of the PAA’s Scope Is Inconsistent Among Lower Courts

Is there a Circuit Split? Maybe. The Eighth Circuit determined that all Circuits to address this issue have reached the same conclusion. However, the

Eighth Circuit overreads the decision in Estate of

Ware, 871 F.3d 273. In Estate of Ware, the Third Circuit acknowledges that there are “implicit limitations on the Price-Anderson Act’s scope” and states

that “[n]one of this is to say that the Act applies to

all harm occurring from nuclear material in any situation whatsoever.” Id. at 284 – 285. Noting that 42

U.S.C. § 2210(k) exempts nonprofit education institutions from the PAA’s financial protection requirements, the Third Circuit determined that the PAA

applied to the claims asserted by the estate of a neuroscientist harmed while working at a nonprofit university. Id. at 282. There is no such exemption for

licensees such as Cotter.

27

As the district court noted here, there are numerous conflicting opinions as to whether the PAA applies in the absence of an applicable license or indemnity agreement. App. 52a-53a. (citing Gilberg v.

Stepan Co., 24 F. Supp. 2d 325, 343 (D.N.J. 1998);

Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp. 2d

282, 297 (D. Mass. 1999); Joseph v. Sweet, 125 F.

Supp. 2d 573, 576 (D. Mass. 2000); Samples v. Conoco, Inc., 165 F. Supp. 2d 1303, 1321–22 (N.D. Fla.

2001); Irwin v. CSX Transp., Inc., No. 3:10-CV-300,

2011 WL 976376, at *2 (E.D. Tenn. Mar. 16, 2011);

Strong v. Republic Servs., Inc., 283 F. Supp. 3d 759

(E.D. Mo. 2017).

A review of the decisions that reach a different

conclusion than the Eighth Circuit demonstrates

that these cases rely on the definition of “occurrence”

from the legislative history or rely on cases that cite

to the definition. One decision rejected the argument

adopted by the Eighth Circuit here, even calling it

“[h]ogwash!” and “frivolous”. Samples, 165 F. Supp.

2d at 1321. On the other hand, the cases relied on by

the Eighth Circuit do not even consider the definition provided by Congress.

For over four years, the parties in the instant case

have ping-ponged between state and federal courts

filling these dockets with PAA, removal, and remand

related briefs all the while largely prevented from

conducting discovery (class-related or on the merits)

necessary to bring this matter to an end. The lack of

legal certainty on PAA jurisdiction and application is

a primary reason this case has not proceeded as it

should. This, coupled with the now conflicting decisions on what constitutes a final judgment under §

1291 discussed below, has the real effect of making

28

the judicial system a contributor to the wasting of

resources, money, and time for the parties now before this Court and the state and federal courts below. The time to clarify this legal uncertainty is now,

and that job falls to this Court.

II. The Eighth Circuit’s Holding That the District Court’s Order Was a “Final Decision” Under 28 U.S.C. § 1291 Creates a Circuit Split Between the Eighth and Fourth Circuits.

This case involves the question of whether severance and remand of a primary claim from a contribution claim constitutes a “final decision” under 28

U.S.C. § 1291. The Fourth Circuit has concluded

that it does not, while the Eighth Circuit in this case

has concluded that it does.

A. The Fourth Circuit Concludes That

Severance and Remand of State Law Claims

From Third-Party Contribution Claims Does

Not Constitute a Final Decision Under 28

U.S.C. § 1291

In Campbell-McCormick, Inc., 874 F.3d 390, the

Fourth Circuit was presented with an appeal stemming from a remand order at the district court level.

Id. at 393. The plaintiff originally filed his state law

claims against several defendants, one of whom then

filed a third-party complaint for contribution against

twelve other third-party defendants. Id. One of the

third-party defendants then removed the case to federal district court pursuant to 28 U.S.C. § 1442(a)

asserting the federal contractor defense. Id. The

plaintiff then filed a motion to sever and remand his

state law claims. Id. Specifically, he requested the

district court decline to exercise supplemental juris-

29

diction over his state law claims pursuant to §

1367(c).

The district court granted the plaintiff’s request

and declined supplemental jurisdiction over the

plaintiff’s state law claims, remanding those claims

back to state court while retaining jurisdiction over

the third-party contribution claims. Id. The defendant and third-party plaintiff appealed the remand

decision, asserting the Fourth Circuit possessed jurisdiction over the appeal under § 1291. Id. However,

the Fourth Circuit questioned that presumption and

recognized that the district court’s decision did not

constitute a final order under § 1291 because it did

not fully extinguish the claims from federal court:

[I]f the [district court’s] Order had dismissed

CMC's third-party claims in conjunction with

remanding Oliver's claims, the Order would

constitute a final decision because there would

be no claims left to pursue in federal court. Instead, however, the district court retained jurisdiction over and stayed the third-party

claims, leaving those claims to be resolved at a

later time. Accordingly, the Order does not

constitute a final decision as generally understood for purposes of § 1291.

Id. at 395. Consequently, the Fourth Circuit dismissed the appeal, finding that it lacked jurisdiction

to hear the case.5 Id. at 398.

B. The Eighth Circuit Concludes That

Severance and Remand of State Law Claims

The Fourth Circuit also examined whether the collateral order

doctrine provided an alternate means of jurisdiction for the

Court and found it did not apply. Id. at 398.

5

30

From Third-Party Contribution Claims Does

Constitute a Final Decision Under § 1291

Given the exact same circumstances, and even

when presented with the Fourth Circuit’s decision in

McCormick, the Eighth Circuit utilized a completely

inconsistent application of § 1291. The facts of the

instant case are the same as those in McCormick.

Here, Plaintiffs filed suit against a number of defendants, alleging state law claims. App. 18a. One of

those defendants, Cotter, filed a third-party petition

against a number of third-party defendants, including Mallinckrodt LLC. App. 19a. Mallinckrodt removed the case from state court citing, among other

provisions, § 1442(a), asserting a federal contractor

defense. App. 19a. Plaintiffs then filed a motion to

sever and remand, asking the district court to sever

Plaintiffs’ state law claims from the third-party contribution claim, and decline to exercise supplemental

jurisdiction over the state law claims and remand

those to state court. App. 20a-21a. The district court

granted Plaintiffs’ motion, severing a remanding

their state law claims while retaining jurisdiction

over the third-party contribution claim. App. 34a.

Cotter appealed the remand decision while filing a

petition for writ of mandamus at the same time.

App. 15a. Plaintiffs filed a motion to dismiss the appeal for lack of jurisdiction. App. 4a. In that motion,

Plaintiffs raised the issue that the district court’s order did not constitute a “final decision” under § 1291.

Plaintiffs directed the Eighth Circuit to the McCormick decision of the Fourth Circuit as support for the

position. Despite this, the Eighth Circuit denied

Plaintiffs’ motion to dismiss, and found it had jurisdiction to hear the appeal under § 1291. App. 4a. The

31

Eighth Circuit’s opinion makes no mention of

whether it considered the Fourth Circuit’s ruling

when coming to its decision.

C. The Eighth Circuit’s Decision is Incorrect.

The extensive interpretation and application of §

1291 by federal appellate courts around the country,

as well as this Court, demonstrates that the Eighth

Circuit’s ruling subverts the intent of the statute.

See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

106, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009) (“A ‘final decisio[n]’ is typically one ‘by which a district

court disassociates itself from a case.’”); State St.

Bank & Tr. Co. v. Brockrim, Inc., 87 F.3d 1487, 1490

(1st Cir. 1996) (“A final decision under § 1291 is one

that ‘ends the litigation on the merits and leaves

nothing more for the court to do but execute the

judgment.’”); United States v. Mellon Bank, N. A.,

545 F.2d 869, 871 (3d Cir. 1976) (“[T]his Court established three requisites for a ‘final order’: (1) It must

be a final rather than a provisional disposition of the

issue; (2) it must not be merely a step toward final

disposition of the merits; (3) and the rights asserted

must be threatened with irretrievable loss if review

is postponed.”). Quite simply, when a third-party

contribution claim remains in federal court, as was

the case here, the federal court litigation continues.

The court file remained open after the remand, no

finality existed for the entirely of the claim, only a

portion. Consequently, the Eighth Circuit’s ruling –

as opposed to the Fourth Circuit – was an incorrect

application of § 1291.

32

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

RYAN A. KEANE

Keane Law LLC

7711 Bonhomme Ave

Suite 600

St. Louis, MO 63105

BARRY COOPER

Counsel of Record

CELESTE BRUSTOWICZ

VICTOR COBB

Cooper Law Firm L.L.C.

1525 Religious Street

New Orleans, LA 70130

(504) 399-0009

bcooper@clfnola.com

KEVIN THOMPSON

Thompson Barney

2030 Kanawha Blvd

Charleston, WV 25311

ANTHONY D. GRAY

Johnson Gray, LLC

319 N. 4th St., Ste. 212

St. Louis, MO 63102