Opposition Brief — Enewetak v. United States, 109 S. Ct. 3198 (1989) (No. 88-1466)

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No. 88-1466

Jn the Supreme Court of the Unite States

OCTOBER TERM, 1988

PEOPLE OF ENEWETAK, RONGELAP, AND

OTHER MARSHALL ISLANDS ATOLLS, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

JACQUES B. GELIN

JOHN T. STAHR

Attorneys

Department of Justirc

Washington, D.C. 20530

(202) 633-2217

ABRAHAM D. SOFAER

Legal Adviser

HOWARD L. HILLS

Office of Freely

Associated State Affairs

DAVID A. BALTON

Attorney-Adviser

Department of State

Washington, D.C.

QUESTION PRESENTED

Whether the Claims Court correctly dismissed peti-

tioners’ Tucker Act suits seeking damages for alleged tak-

ings of property and breach of implied-in-fact contractual

obligations arising out of the nuclear testing program in

the Marshall Islands between 1946 and 1958, on the

ground that the Compact of Free Association between the

United States and the Government of the Marshall Islands

settled those claims and bars United States courts from ex-

ercising jurisdiction over them.

(1)

TABLE OF CONTENTS

Page

aged age a neh ie l

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A A oe ee ee 1]

tse ye oe on wey Ske ele, 30

Er re tg ey os pk oe oko oe vod evak ak la

TABLE OF AUTHORITIES

Cases:

Antolok v. Brookhaven National Laboratories, No.

CV 82-2364 (C.D. Cal. Jan. 6, 1988), appeal pending,

ei 2S Ot ae 3, 16

Antolok v. United States, No. 87-5324 (Apr. 28, 1989) ... 3, 7,

11, 14, 15-16, 18, 19, 20, 21, 28, 29

Blanchette v. Connecticut General Insurance Corp. (Re-

gional Rail Reorganization Act Cases) 419 U.S. 102

Oe A Pane rs aa, 22,23

Cherokee Nation v. Southern Kansas R.R., 135 U.S. 641

ak On sh RS a 20

Dames & Moore v. Regan, 453 U.S. 654 (1981) .........22 a3,

24, 25, 29

Gulf Offshore Co. vy. Mobil Oil Corp., 453 U.S. 473

tn ea ee oe 18

Juda vy. United States, 6 Cl. Ct. 441 (Cl. Ct. | | ee 3,9, 16

Lynch vy. United States, 292 U.S. 571 (1934) ............ 21

People of Bikini v. United States, 859 F.2d 1482 (Fed.

ee ee a Me Me a on 10

Peter v. United States, 6 Cl. Ct. 768 (Cl. Ct. | re 4.9

Porter v. United States, 496 F.2d 583 (Ct. Cl. 1974), cert.

@emaca, 4200).8, 1004 (1975) ....................... 28

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ..... bei ee

Schillinger vy. United States, 155 U.S. 163 (1894) ........ 21

Shanghai Power Co. v. United States, 4 Cl. Ct. 237 (1983),

aff'd, 765 F.2d 159 (Fed. Cir.), cert. denied, 474 U.S.

aS 8 adh Dither y

Cases — Continued: Page

Shell Oil Co. v. lowa Department of Revenue, 109 S. Ct.

FI CR ee ee Te Tee icra 18

United States v. Belmont, 301 U.S. 324 (1937) .......... )

United States v. James, 478 U.S. 597 (1986) ............ 18

United States v. Pink, 315 U.S. 203 (1942) ............. y)

United States v. Sioux Nation of Indians, 448 U.S. 371

CGR eh er ea eee ES PED whe OR eae 29

Constitution and statutes:

U.S. Const.:

pt Ol ee oot NG eee ee eae aman rr eared 29

Amend. V (Just Compensation Clause) ............ zt, a2

Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 ........ 3

Compact of Free Association Act, Pub. L. No. 99-239,

Pe ee SETA re es EK hr Te ee xe i Pap |

gf Mk 9 gi c- WRPPatee Dalen le tune ean URE ee Ard 13

§ 101(d)(2)(C), 99 Stat. 1773-1774 ............ 13

De Sr A, BRE. co ee ee 7-8, 15, 17

i, 16517, 18

OD ORS Oe We BO iso ose $5 Pana ews 10

Tak: Be ee, UE gona ko a asso lace tans 2; 443

Compact of Pret ASSOCIAQUON .........65 6.0885 2

S277, We eee MOOS 5 ccs nde see DH 2, 13, 14, la

Bie ee lS eee °

Bey. A be | |} ara ero 4

OUT Gh ee A: Sa sos hrs ene A

DS Fae Sone eek Ss ee ees 4

Miscellaneous:

|. Brownlie, Principles of Public International Law (3d

i; SOT Oe ee teas eo a eee ea 29

131 Cong. Rec. (1985):

i re pt ak ova Sale kaa ea tee 16

ae SL) ree are REE SRS Me? en 27

i. POSS ons sa Se tenes ee ; 17

a -. neeoeee hone rere 19

Miscellaneous — Continued: Page

134 Cong. Rec. $12,008 (daily ed. Sept. 8, 1988) ........ 19-20

L. Henkin, Foreign Affairs and the Constitution (1972) .. 29

H.R. J. Res. 187, 99th Cong., Ist Sess. (1985) ....... ae 16

Kelso, Espousal: Its Use in International Law, | Ariz. J.

of Internat’l and Comp. Law 233 (1982) ..... AAR 29

Jn the Supreme Court of the United States

OcTOBER TERM, 1988

No SS-1466

PEOPLE OF ENEWETAK, RONGELAP. AND

OTHER MARSHALL ISLANDS ATOLLS. PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

lO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals on the consolidated

appeals (Pet. App. la-6a) is reported at 864 F.2d 134. The

opinions of the United States Claims Court in Peter vy.

United States (Pet. App. 8a-10a), Nitol v. United States

(Pet. App. 1la-13a), and Juda v. United States (Pet. App.

14a-6la) are reported at 13 Cl. Ct. 691, 690 and 667, re-

spectively.

JURISDICTION

The judgment of the court of appeals (Pet. App. 7a) was

entered on December 8, 1988. The petition for a writ of

certiorari was filed on March 8, 1989. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Petitioners, who are citizens of the Republic of the Mar-

shall Islands, seek to invalidate the claims-settlement pro-

visions of the Compact of Free Association between the

United States and the Government of the Marshall

Islands. The Compact recognizes the people of the Islands

as self-governing and defines the relations between the two

Governments. In Section 177(a) of the Compact, the

United States “accepts the responsibility for comper sation

owing to citizens of the Marshall Islands” tor losses result-

ing trom the nuclear testing program conducted by the

United States in the Northern Marshall Islands between

1946 and 1958.' To implement that commitment, the

United States entered into an agreement with the Govern-

ment of the Marshall Islands (the “Section 177 Agree-

ment”) settling all claims based on the testing program and

paid $150 million to the Marshall Islands in October 1986

to establish a permanent compensation Fund. The Section

177 Agreement provides that United States courts shall

have no jurisdiction to entertain such claims. Petitioners,

who had filed suits against the United States seeking to re-

cover for losses allegedly resulting from the nuclear testing

program, now challenge both the jurisdictional bar and

the authority of their own government to espouse and set-

tle their claims against the United States. The court of ap-

peals held that petitioners’ suits are barred (Pet. App.

la-6a). In a related case involving many of the same plain-

tiffs, the District of Columbia Circuit similarly held that

the jurisdictional bar requires dismissal of Federal Tort

Claims Act suits against the United States arising out of

' The Compact of Free Association is set forth and approved as

Title 1] of the Compact of Free Association Act, Pub. L. No, 99-239,

99 Stat. 1770. Section 177 of the Compact is reproduced at App., im-

tra, la-2a.

the nuclear testing program. Antolok v. United States,

No. 87-5324 (Apr. 28, 1989).

1. These cases are individual Tucker Act suits against

the United States by citizens of the Marshali Islands, seek-

ing to recover for takings of property and breaches of im-

plied-in-fact contractual duties that allegedly resulted

from the nuclear testing program conducted at Bikini and

Enewetak Atolls pursuant to the Atomic Energy Act of

1946, ch. 724, 60 Stat. 755. The complaints in Juda v.

United States and Peter v. United States were filed in 1981

and 1982 on behalf of inhabitants of Bikini and Enewetak,

respectively. Twelve other actions, consolidated under the

caption Nitol v. United States, were filed in 1981 and 1982

on behalf of some inhabitants of Rongelap and Utrik and

other areas in the Marshall Islands downwind from the

test sites.?

2. Prior to World War II, the Marshall Islands were ad-

ministered by Japan under a League of Nations mandate.

At the end of Worid War II, the United States liberated the

Islands from Japan. In 1947, the United States and the

United Nations Security Council approved a Trusteeship

Agreement that designated the United States as “ad-

ministering authority” for a Trust Territory comprised of

the Marshall Islands and several other Pacific Island

groups. The Trusteeship Agreement granted the United

States full powers over the Territory and obligated it to pro-

mote self-government in accordance with the freely ex-

pressed wishes of the peoples concerned. Pet. App.

19a-22a.

* Most plaintiffs in the Nifo/ cases are also plaintiffs in the Antolok

case in the District of Columbia Circuit or a similar case pending in

the Ninth Circuit, Avtolok v. Brookhaven National Laboratories, No.

CV 82-2364 (C.D. Cal. Jan. 6, 1988), appeal pending, No. 88-5749

(9th Cir.). Proceedings on appeal in the latter case were stayed pend-

ing resolution of the D.C. Circuit case. References herein to

“ntolok” are to the opinion in the D.C. Circuit case.

During the 1960s, the United States initiated steps to

foster self-government of the Territory.’ The people of the

Marshall Islands approved a constitution, in a United

Nations-observed referendum on March 1, 1979, and in-

augurated parliamentary government on May I, 1979. On

April 25, 1979, the Secretary of the Interior, on behalf of

the United States, recognized the constitutional govern-

ment of the Republic of the Marshall Islands, and dele-

gated most executive, legislative and judicial functions to

the new government, subject to the retention by the United

States of residual authority necessary to ensure its ability

to meet its underlying trusteeship obligations. Pet. App.

22a-23a.

3. Following lengthy government-to-government

negotiations, the Republic of the Marshall Islands and the

United States signed the Compact of Free Association on

June 25, 1983. The Compact recognizes that the people of

the Marshall Islands are “sovereign,” and, acting through

their constitutional government, are “self-governing” (99

Stat. 1800, 1801). In Section 177(a) of the Compact, the

“Government of the United States accepts the responsi-

bility for compensation Owing to citizens of the Marshall

Islands * * * for loss or damage to property and person”

resulting from the nuclear testing program (App., infra,

la). Section 177(b) requires the two Governments to enter

into a Separate agreement providing “for the just and ade-

quate settlement of all such claims which have ariseu in re-

gard to the Marshall Islands and its citizens and which

> At that time, the United States encouraged, and the Trust Terri-

tory residents expiored, the possibility of commonwealth or United

States territorial status for the various islands groups. However, in a

series of United Nations-observed plebiscites, the residents determined

to form four separate political entities for the development of con-

stitutional self-government, one of which is the Republic of the Mar-

shall Islands. Pet. App. 22a.

have not as yet been compensated or which in the future

may arise” (ibid.). Section 177(c) obligates the United

States to provide $150 million to the Marshall Islands to

fund that Agreement (App., infra, 2a).4

The purpose of the Section 177 Agreement is “to create

and maintain, in perpetuity, a means to address past, pres-

ent and future consequences of the Nuclear Testing Pro-

gram, including the resolution of resultant claims” (Pre-

amble (C.A. App. 331)). The Agreement thus requires the

United States to pay $150 million to the Marshall Islands

tO create a permanent investment Fund, with compensa-

tion to be paid out of the annual proceeds (Art. I (C.A.

App. 332-333)).’ Because the Agreement contains no ter-

mination provision, the Fund as now constituted will con-

tinue in existence permanently to satisfy compensation

needs, absent formal amendment of the Compact and

Agreement by the two Governments.

To address the long-term problems stemming from the

testing program, the Section 177 Agreement requires com-

pensation to be made in several forms. First, it provides $2

million annually over a 15-year period for health-care pro-

grams, and an additional $1 million annually over the ini-

* The United States had previously addressed the consequences of

the testing program on an ad hoc basis under 14 separate statutes, set

forth in Appendix A to the Agreement, which dealt with island

rehabilitation, agricultural maintenance, medical treatment, compen-

sation for injuries and loss of property, radiological monitoring, and

claims settlement. We have been informed by the Department of State

that the United States furnished approximately $150 million under

those statutes Over a 20-year period. The Compact and Section 177

Agreement, at issue here, furnish an additional $150 million to estab-

lish the first comprehensive and integrated means of addressing these

needs On a permanent basis.

> The Fund’s principal may be drawn upon oily if income fails to

meet annual distribution schedules (Art. II, § 7(a) (C.A. App. 336)).

tial three-year period for medical surveillance and radio-

logical monitoring (Art. II, § 1 (C.A. App. 333-334)). Fur-

ther, in recognition of the fact that atoll residents were re-

located and affected as a community, and that there are

unique community needs that are best determined locally,

the Agreement also provides for payments of $183.75

million, over 15 years, to the Jocal governmental councils

for Bikini, Enewetak, Rongelap and Utrik, which serve as

“Distribution Authorities” under the Agreement.® In_ac-

cordance with local custom and Marshallese law, the Dis-

tribution Authorities use the funds to make per capita

payments to individual residents or for local community

needs (Art. II, §§ 2-5; Art. III (C.A. App. 337)). In addi-

tion, under agreements between the Government of the

Marshall Islands and the Distribution Authorities, some

of the funds are placed in trust or otherwise invested to

promote the long-term financial security of the communi-

ty concerned (Art. II, § 8 (C.A. App. 336-337)). Finally,

as “an additional long-term means for compensating

claims,” the Agreement establishes a Claims Tribunal to

adjudicate any additional uncompensated claims of in-

dividual inhabitants, and it provides $45.75 million over

the first 15 years of the Compact’s existence for such

awards (Art. Il, § 6; Art. IV (C.A. App. 335, 338-339)).

At the end of the initial 15-year period, when payments to

the Distribution Authorities for the atolls end, the Agree-

ment commits at least 75% of the annual proceeds of the

permanent Fund (a projected $13.5 million annually) for

awards by the Claims Tribunal (Art. II, § 7(c) (C.A. App.

336)).

million to the people of Bikini, who now number approximately 1300;

$48.75 million to the approximately 900 people of Enewetak; $37.5

million to the 450 people of Rongelap; and $22.5 million to the 800

people of Utrik.

Article X of the Section 177 Agreement, entitled

“Espousal,” affirms that the Agreement was entered into

on the basis of the espousal of claims by the Government

of the Marshall Islands and constitutes a full settlement by

the Marshall Islands of all such claims. Article X provides

(Pet. App. 63a-64a):

This Agreement constitutes the full settlement of all

claims, past, present and future, of the Government,

citizens and nationals of the Marshall Islands which

are based upon, arise out of, or are in any way related

to the Nuclear Testing Program, and which are

against the United States, its agents, employees, con-

tractors and citizens and nationals, and of all claims

for equitable or any other relief in connection with

such claims including any of those claims which may

be pending or which may be filed in any court or

other judicial or administrative forum, including the

courts of the Marshall Islands and the courts of the

United States and its political subdivisions.

Finally, Article XII of the Section 177 Agreement, entitled

“United States Courts,” provides (Pet. App. 65a):

All claims described in Articles X and XI of this

Agreement shall be terminated. No court of the

United States shall have jurisdiction to entertain such

claims, and any such claims pending in the courts of

the United States shall be dismissed.

4. The people of the Marshall Islands approved the

Compact of Free Association, including the Section 177

Agreement, in a September 1983 plebiscite monitored by

the United Nations Trusteeship Council (Pet. App. 24a;

Antolok, slip op. 5). Congress approved the Compact and

the Section 177 Agreement in the Compact of Free Associ-

ation Act, which was approved by the President on

January 14, 1986. Pub. L. No. 99-239, 99 Stat. 1770. Sec-

tion 103(g) of that Act reiterates that the Section 177

Agreement constitutes a full and final settlement of all

claims (99 Stat. 1782):

(g) ESPOUSAL PROVISIONS. —(1) It is the in-

tention of the Congress of the United States that the

provisions of section 177 of the Compact of Free As-

sociation and the Agreement between the Govern-

ment of the United States and the Government of the

Marshall Islands for the Implementation of Section

177 of the Compact (hereafter in this subsection re-

ferred to as the “Section 177 Agreement”) constitute a

full and final settlement of all claims described in Ar-

ticles X and XI of the Section 177 Agreement, and

that any such claims be terminated and barred except

insofar as provided for in the Section 177 Agreement.

(2) In furtherance of the intention of Congress as

stated in paragraph (1) of this subsection, the Section

177 Agreement is hereby ratified and approved. It is

the explicit understanding and intent of Congress that

the jurisdictional limitations set forth in Article XII

of such Agreement are enacted solely and exclusively

to accomplish the objective of Article X of such

Agreement and only as a clarification of the ef ect of

Article X, and are not to be construed or imple-

mented separately from Article X.

5. On May 28, 1986, the United Nations Trusteeship

Council formally declared that the peoples of the Marshall

Islands “have freely exercised their right to self-determina-

tion * * * and have chosen free association with the United

States of America”; and that the United States “has

satisfactorily discharged its obligations under the terms of

the Trusteeship Agreement” (Pet. App. 30a (C.A. App.

1222)). On October 10, 1986, the United States and the

Marshall Islands executed an agreement that the Compact

would enter into force on October 21, 1986; and on

November 3, 1986, ihe President issued Proclamation No.

5564, which announced that the United States “has ful-

filled its obligations under the Trusteeship Agreement”

and that, with respect to the Marshall Islands, the

Trusteeship Agreement “is no longer in effect as of Oc-

tober 21, 1986” (id. at 30a, 32a).

6. a. Following approval of the Compact, the United

States moved to dismiss the remaining claims in these con-

solidated cases on the ground that the Compact and Sec-

tion 177 Agreement divested the Claims Court of jurisdic-

tion to entertain them.’ The Claims Court granted the

government’s motion in an opinion dated November 10,

1987 (Pet. App. 14a-61la), holding that the “consent of the

United States to be sued in the Claims Court on plaintiffs’

taking claims and breach of contract claims that arise

from the United States’ nuclear testing program in the

Marshall Islands has been withdrawn” (/d. at 61a). The

’? Prior to approval of the Compact, the United States filed motions

to dismiss the complaints in all cases. The Claims Court held in 1984

that the Peter complaint stated claims for breach of implied contract,

but that the statute of limitations barred the plaintiffs’ taking claims.

Peter v. United States, 6 Cl. Ct. 768, 775, 778 (Cl. Ct. 1984). The

court held in Nito/ that plaintiffs could maintain taking claims, but

that the complaint alleged insufficient facts to support implied-in-fact

contract claims. Plaintiffs in Nito/ did not appeal the latter holding.

The court found that the Juda complaint stated taking and breach of

implied contract claims. Juda v. United States, 6 Cl. Ct. 441, 449-458

(Cl. Ct. 1984).

In its motion to dismiss filed after approval of the Compact, the

United States also asserted that these actions raised a nonjusticiable

political question, by contesting the authority of sovereign govern-

ments to settle claims incident to diplomatic recognition, as well as the

United States’ authority to recognize foreign governments for pur-

poses of settlement. See United States v. Belmont, 301 U.S. 324,

328-332 (1937); United States v. Pink, 315 U.S. 203, 226-230 (1942);

Shanghai Power Co. v. United States, 4 Cl. Ct. 237, 248 (1983), atfd

without opinion, 765 F.2d 159 (Fed. Cir.), cert. denied, 474 U.S. 909

(1985). The Claims Court did not rule on the political question issue in

dismissing on jurisdictional grounds, nor did the court of appeals in

affirming.

court specifically rejected petitioners’ contention that

Congress conditioned the withdrawal of jurisdiction on a

judicial determination that the diplomatic espousal of

petitioners’ claims by the Government of the Marshall

Islands was consistent with international law (id. at

48a-55a). It also held that Congress has full authority

under the Constitution to establish an alternate method of

compensation for particular claims and to withdraw

Tucker Act juridiction over those claims (id. at 59a). In

this case, the court observed, “Congress, in the Comnact

Act, has recognized and adopted a procedure that it be-

lieves provides a means for final discharge of constitu-

tional obligations for just compensation” (id. at 60a). For

this reason, the court concluded that any challenge to the

adequacy of the permanent compensation program would

be “premature,” and that it therefore “cannot be chal-

lenged judicially until it has run its course” (ibid).

b. The court of appeals affirmed (Pet. App. la-6a),

specifically adopting the Claims Court’s “more extensive

analysis” of the jurisdictional issue (id. at 6a).* The court

recognized that the Compact and Section 177 Agreement

* While the appeals were pending, the plaintiffs in Juda voluntarily

dismissed their appeal with prejudice. People of Bikini v. United

States, 859 F.2d 1482 (Fed. Cir. 1988); see Pet. App. 2a n.1. This dis-

missal was in conjunction with implementation of Section | of Article

VI of the Section 177 Agreement (C.A. App. 340) and Section 103(/)

of the Compact Act, 99 Stat. 1786, and the appropriation by Congress

of $90 million for that purpose. Those special provisions committed

Congress to fund the costs of resettling Bikini by the people of Bikini

out of future appropriations, rather than the $150 million compensa-

tion Fund at issue in this case. The Compact and Section 177 Agree-

ment do not contain any comparable provisions committing the

United States to furnish special funds for the people of other Atolls, in

addition to the specific payments already prescribed by the terms of

the settlement.

“provide, in perpetuity, a means to address past, present

and future consequences, including the resolution of in-

dividual claims,” and it was “unpersuaded thai judicial in-

tervention is appropriate at this time on the mere specula-

tion that the alternative remedy may prove to be inade-

quate” (/d. at 5a). In the court’s view, a “fall back” Tucker

Act remedy is not necessary “to sustain the constitutionali-

ty of every alternative procedure for compensation”

(ibid.). In particularly, it concluded that where, as here,

Congress has provided a permanent mechanism for the

full and final discharge of all claims, the determination of

the need for any “fallback” remedy is not mandated “in

advance of the exhaustion of the alternative provided”

(ibid.).

ARGUMENT

The court of appeals correctly affirmed the Claims

Court’s dismissal of petitioners’ claims on the ground that

the Compact of Free Association Act and the Section 177

Agreement bar United States courts from entertaining

those claims. The judgment below is consistent with the

holding by the District of Columbia Circuit in Antolok vy.

United States, No. 87-5324 (Apr. 28, 1989), which held

that tort suits brought by many of the same plaintiffs like-

wise are barred by the Compact Act and Section 177

Agreement. Moreover, petitioners concede that the settle-

ment and preclusion provisions of the Compact and Sec-

tion 177 Agreement are valid if the Government of the

Marshall Islands could properly espouse the claims of its

citizens. As Chief Judge Wald concluded in her concurring

opinion in Antolok, that espousal was fully consistent

with international law and custom. At the very least, Con-

gress constitutionally could determine that the settlement

at issue here, based on such an espousal by the Govern-

ment of the Marshall Islands, was just and proper. For

these reasons, the courts below properly declined to in-

validate the claims-settlement provisions of the Compact

of Free Association, which was approved by the people of

the Marshall Islands in a plebiscite recognized by the

United Nations Trusteeship Council as a valid act of self-

determination and was then approved by the Congress and

President of the United States. Further review of this dip-

lomatic undertaking is not warranted.

1. Petitioners argue (Pet. 10-13) that the court of ap-

peals erred as a matter of statutory construction in con-

cluding that the instant suits must be dismissed for lack of

jurisdiction. Congress, however, could not have been

clearer that these suits must be dismissed.

a. Article X of the Section 177 Agreement, which is

entitled “Full Settkement of All Claims,” states that the

Agreement “constitutes the full settlement of all claims,

past, present and future, of the Government, citizens and

nationals of the Marshall Islands which are based upon,

arise Out of, or are in any way related to the Nuclear Test-

ing Program, and which are against the United States,

* * * including any of those claims which may be pending

or which may be filed in any court or other judicial or ad-

ministrative forum, including * * * the courts of the

United States and its political subdivisions” (Pet. App.

63a-64a). Article XII of the Section 177 Agreement, en-

titled “United States Courts,” then states (Pet. App. 65a):

All claims described in Articles X and XI of this

Agreement [?] shall be terminated. No court of the

» Article XI obligates the Government of the Marshall Islands to in-

demnify the United States, up to a maximum of $150 million, if the

United States should be held liable for any claims covered by Article

X. Pet. App. 64a. Article XI represents an undertaking by the

Government of the Marshall Islands faithfully to meet its commit-

ments under the Compact and Section 177 Agreement, and it was in-

cluded as a reciprocal measure in recognition of the irrevocable com-

mitment by the United States to pay the Government of the Marshall

United States shall have jurisdiction to entertain such

claims, and any Such claims pending in the courts of

the United States shall be dismissed.

The Section 177 Agreement, including this provision

depriving United States courts of jurisdiction and requir-

ing dismissal of all pending suits, is incorporated into the

Compact by Section 177(c) thereof (99 Stat. 1812). The

Compact itself in turn was enacted into United States law

by Title Il of the Compact of Free Association Act (99

Stat. 1800).'° Pursuant to these unambiguous provisions

of law, the courts below correctly held that petitioners’

claims are “terminated” in United States courts and must

be dismissed for lack of jurisdiction.

Congress reiterated its purpose to terminate this litiga-

tion in Title | of the Compact of Free Association Act,

which, inter alia, sets forth the legal and policy positions

of the United States regarding the Compact that was en-

acted by Title II] of the Act. Specifically, Section 103(g)(1)

of the Act states that “[ijt is the intention of the Congress”

that Section 177 of the Compact and the Section 177

Agreement “constitute a full and final settlement of all

claims described in Articles X and XI of the Section 177

Agreement, and that any such claims be terminated and

barred except insofar as provided for in the Section 177

Agreement” (99 Stat. 1782). Because all claims described

in Article X of the Agreement are “terminated and barred”

(“except” that they are to be paid out of the $150 million

Fund “as provided for in the Section 177 Agreement”),

petitioners’ claims are “terminated and barred” in United

States courts. Section 103(g)(2) of the Act further under-

Islands $150 million to create the Fund in tull and final setthkement of

all such claims.

10 See also Section 101(d)(2)(C) of the Act, which states that the

Section 177 Agreement is “incorporated by reference into the Com-

pact” (99 Stat. 1773-1774).

scores Congress’s purpose in this regard by stating that the

Section 177 Agreement — necessarily including the jurisdic-

tional bar in Article XII—“is hereby ratified and ap-

proved” in “furtherance of the intention of Congress as

Stated in paragraph (1),” which is to accomplish a “full and

final settlement” of all claims. Therefore, Section

103(g)(1) and (2) of the Compact of Free Association Act,

like Section 177 of the Compact and the Section 177

Agreement, clearly required dismissal of petitioners’ suits.

b. Petitioners argue, however, that the jurisdictional

preclusion in Article X of the Section 177 Agreement

should not be given effect by a United States court unless

the court first determines that the espousal of their claims

by the Government of the Marshall Islands was valid.

Nothing in the provisions just quoted conditions the

jurisdictional preclusion in this manner. To the contrary,

those provisions establish that Congress and the Govern-

ment of the Marshall Islands intended the comprehensive

settlement in the Compact and Section 177 Agreement to

result in the automatic dismissal of claims pending in

United States courts, without any second-guessing of the

settlement by the courts.

Petitioners nevertheless insist (Pet. 11-13) that the sec-

ond sentence of Section 103(g)(2) required the courts be-

low to pass on the validity of the espousal before dis-

missing their claims. “The short answer to [petitioners’]

argument that this is the meaning of Section 103(g}(2) is:

This is not what the statute says.” Antolok, slip op. 13.

The second sentence of Section 103(g)(2) states (99 Stat.

1782):

It is the explicit understanding and intent of Congress

that the jurisdictional limitations set forth in Article

XII of such Agreement are enacted solely and exclu-

sively to accomplish the objective of Article X of such

Agreement and only as a clarification of the effect of

Article X, and are not to be construed or imple-

mented separately from Article X.

Nothing in this sentence suggests an intention on the part

of Congress to authorize or require a court to pass on the

validity of the espousal as a matter of international law be-

fore dismissing claims covered by Article X of the Agree-

ment. To the contrary, this sentence confirms, in uncon-

ditional language, that the “jurisdictional limitations” in

Article XII “are enacted.” Furthermore, the decision

below is fully consistent with the other language Congress

used in the second sentence of Section 103(g)(2). The

Claims Court, affirmed by the court of appeals, dismissed

petitioners’ claims solely in order to “accomplish the ob-

jective” of the full and final setthkement of those claims

mandated by Article X of the Agreement, and it therefore

did not “construe[] or implement[{]” the jurisdictional

limitations “separately from Article X.”

Thus, there is no support in the second sentence of Sec-

tion 103(g)(2) for the proposition that the dismissal that

was unconditionally required by the Section 177 Agree-

ment, by the Compact, and by other provisions of Section

103(g) itself was made conditional on judicial approval of

the espousal of claims by the Government of the Marshall

Islands. Nor should such a limitation be lightly implied.

The setthement provisions and jurisdictional limitations

are part of a Compact that affects important foreign

policy and national defense interests of the United States.

It was entered into only after extensive negotiations and

was ratified by Congress only after it had been approved

in a United Nations-recognized plebiscite of the people of

the Marshall Islands. It is inconceivable that Congress

would have unilaterally amended such a bilateral agree-

ment, and made the effectiveness of a diplomatic under-

taking contingent upon judicial approval, without express-

ly stating its intention to do so. Accord Antolok, slip op.

14 (“if Congress had meant to condition this important in-

ternational agreement on a review of a fundamental provi-

sion therein by the courts, it surely could have included

language to that effect”); Antolok v. Brookhaven Na-

tional Laboratories, No. CV 82-2364 (C.D. Cal. Jan. 6,

1988), slip op. 8 (“If Congress wanted to first have courts

test the Compact, it could have said so; instead Congress

stripped the courts of jurisdiction.”), appeal pending, No.

88-5749 (9th Cir.).

There is, moreover, no need to speculate on the point,

because Congress in fact rejected language that would

have expressly conditioned Article XII’s withdrawal of

consent to suit on judicial approval of the espousal of peti-

tioners’ claims by the Government of the Marshall Islands.

An alternative to paragraph (2) of Section 103(g), which

was drafted by Representative Seiberling and passed by

the House of Representatives as part of an early version of

the Compact legislation on July 25, 1985, would have pro-

vided (Pet. App. 49a-50a):

(2) If, notwithstanding the enactment into law of

this joint resolution, a United States court of compe-

tent jurisdiction determines that the provisions of Ar-

ticle X of the [Section 177 Agreement] are invalid as a

matter of international law or for any other reason,

the provisions of Article XII * * * shall not, of them-

selves, prevent any court of the United States other-

wise having jurisdiction over claims described in Ar-

ticles X and XI * * * from entertaining such claims;

and the time between the effective date of the Com-

pact and any subsequent final judicial determination

of invalidity of Article X * * * shall not be included in

any calculations regarding applicable statutes of limi-

tations * * *.

H.R.J. Res. 187, 99th Cong., Ist Sess. § 103(g)(2) (1985),

131 Cong. Rec. 20,643 (1985). In passing the Compact

Act, Congress retained the House-passed paragraph (1) of

Section 103(g), which affirmed the “full and final settle-

ment of all claims,” but changed paragraph (2). Congress,

for example, added an introductory first sentence to

paragraph (2) stating that, “[ijn furtherance of the inten-

tion of Congress as stated in paragraph (1),” the Section

177 Agreement is “ratified and approved” (Pet. App. 62a).

And Congress rewrote the now-second sentence entirely,

removing the statement that courts may disregard Article

XII if Article X is found invalid—and indeed removing

any reference to the validity of espousal, judicial review,

or to statute of limitations considerations that might resvlt

from judicial review of espousal. Those revisions represent

a clear rejection of the very condition now scught by peti-

tioners.

c. Having tailed to achieve passage of his proposed

statutory language, Representative Seiberling inserted a

written extension of remarks into the record of the House

debate after its final passage of the bill on December 11,

1985. In those remarks, upon which petit‘ ners base vir-

tually their entire argument that the second sentence of

Section 103(g)(2) means something other than what it says

(see Pet. 13), Representative Seiberling stated (131 Cong.

Rec. 36,032 (1985)):

The new language is intended to make it clear that

court-stripping provisions of article XII of the section

177 agreement have no independent force or effect

and their sole function is to implement the provisions

of article X. Thus, if article X is valid, espousal

stands; and if article X is invalid, claims covered by

the espousal provisions will remain justiciable in U.S.

courts, regardless of article XII.

These remarks do not expressly state that a United States

court may —much less must—pass on the validity of the

espousal before dismissing a case pursuant to Article XI

Yer sd ail el ae a

and other provisions of the Agreement, Compact, and

Act. Representative Seiberling’s remarks merely indicate

that if Article X should be held invalid at some point,

claims covered by that Article would remain justiciable in

United States courts. Read in this way, even the remarks

upon which petitioners rely do not indicate that the courts

below erred in dismissing petitioners’ claims at this time,

without passing on the validity of the espousal.

In any event, this isolated statement of a Member whose

proposed language was specifically rejected by Congress

is, tO say ‘the least, not a reliable indicator of the intent of

Congress as a whole on this issue. Compare Shell Oil Co.

v. lowa Department of Revenue, 109 S.Ct. 278, 284 (1988)

(“This Court does not usually accord much weight to the

statements of a bill’s opponents.”); Gulf Offshore Co. v.

Mobil Oil Corp., 453 U.S. 473, 483 (1981) (“ ‘[t]he fears

and doubts of the opposition are no authoritative guide to

the construction of legislation.”). That is particularly so

here, because, as the Claims Court observed, the terms of

Section 103(g)(2) as finally enacted “actually contradict

{petitioners’] argument” (Pet. App. 51a). Accord Antolok,

slip op. 16 (“We cannot find the single statement of even

an influential Congressman to overcome the plain

language of the statute itself, especially where that state-

ment was not spoken in floor debate but rather inserted in-

to the Congressional record.”); see United States v. James,

478 U.S. 597, 606 (1986).

The force of Representative Seiberling’s extension of re-

marks is further undermined by the section-by-section

analysis of the bill prepared by Senator McClure, the prin-

cipal Senate sponsor of the legislation, which was referred

to by the Senator during the Senate’s debate on final pas-

sage of the bill two days later and which was printed as

part of the record of that debate. See . Antolok, slip op. 17

n.6. The section-by-section analysis responded to the posi-

tion of Representative Seiberling as follows (131 Cong.

Rec. 36,468 (1985)):

(g) Espousal provisions. This provision reiterates

the provisions of Section 177 of the Compact which

provide that there is full and final settlement of all

nuclear effects claims.

In light of the statement made by some more inter-

ested in protracted litigation than compensation for

the victims of the testing program, both the Senate

and House agreed that an explicit endorsement of the

resolution was important. Additional ex gratia assist-

ance will be available in the future if circumstances

Warrant and this provision in no manner lessens the

concern which we have for the population of the af-

fected atolls. It is designed to prevent the Marshall

Islands from becoming a tropical Bleak House.

This view was confirmed by Senator Johnston during the

Senate debate on the appropriation of an additional $90

million in 1988 for the resettlement of Bikini pursuant to a

special provision of the Compact. See note 8, supra.

Senator Johnston stated, with obvious reference to the in-

stant case and the related Antolok cases (134 Cong. Rec.

$12,008 (daily ed. Sept. 8, 1988)):

[T]he courts have been urged to assert jurisdiction

and review claims covered by the Section 177 Agree-

ment despite clear congressional intent to the con-

trary. Much has been made in the courts of floor

statements by a former Member of the House of Rep-

resentalives On this issue. However, such statements

musi be put into perspective. Those statements repre-

sent the view of one Member of Congress whose posi-

tion Was not accepted by Congress when it enacted the

Compact Act. The intent of Congress is clear on its

face in the statutory language of Public Law 99-239,

secuion 103(g).

I would further note that the language was specifi-

cally included in the statute to rebut any indication

that enactment of the compact did not constitute a

full and final settkement and a complete and absolute

bar to either continued or further litigation. * * * The

attempts by some to weaken or alter the original

language were rebuffed and specifically disclaimed.

d. For the foregoing reasons, petitioners’ argument

that Congress conditioned the jurisdiction upon a judicial

determination of the validity of espousal is without merit.

2. a. Petitioners argue (Pet. 7-10) that Congress could

not constitutionally withdraw Tucker Act jurisdiction over

their claims without first authorizing the court to deter-

mine that the alternative method of compensation provid-

ed by the Compact and Section 177 Agreement furnished

petitioners with a “ ‘reasonable, certain and adequate pro-

vision for obtaining compensation.’ ” Blanchette v. Con-

necticut General Insurance Corp., 419 U.S. 102, 124-125

(1974) (Regional Rail Reorganization Act Cases), quoting

Cherokee Nation v. Southern Kansas R.R., 135 U.S. 641,

659 (1890). In petitioners’ view, it cannot now be de-

termined that the compensation furnished by the Claims

Tribunal in the Marshall Islands will be adequate to pay

their taking and implied-in-fact contract claims, and a

Tucker Act remedy therefore must be retained to cover

any short-fall. There are a number of difficulties with this

argument.

First, petitioners expressly concede that “espousal is a

recognized mechanism for settling claims under interna-

tional law and acknowledge that if this espousal complied

with the requirements of international law, then their

claims have been validly extinguished” (Pet. 12). As Chiet

Judge Wald explained in her concurring opinion in An-

tolok (slip op. 19-21), the espousal in this case Is fully con-

sistent with international law and custom.

Second, it is well settled that Congress may decline to

Waive the sovereign immunity of the United States, or may

withdraw consent to suit that was previously given, even

where the underlying claim may be one of constitutional

dimension (Lynch v. United States, 292 U.S. 571, 579-582

(1934)), because “[t}he rule that the United States may not

be sued without its consent is all embracing” (id. at 581);

see also Schillinger v. United States, 155 U.S. 163, 168

(1894). It follows that the statutory provisions that pre-

clude United States courts from exercising jurisdiction

Over petitioners’ claims do not result in a taking of prop-

erty, because “consent to sue the United States is a privi-

lege accorded; not the grant of a property right protected

by the Fifth Amendment” (Lynch, 292 U.S. at 581; accord

Antolok, slip op. 19; id. at 19-20 (Wald, C.J., concur-

ring)). Indeed, as the Claims Court observed, “[a]n un-

broken line of decisions holds that Congress may with-

draw its consent to sue the Government at any time” (Pet.

App. 60a). For this reason alone, it was not necessary for

the courts below to ascertain the adequacy of the alterna-

tive means of compensation before dismissing petitioners’

suits pursuant to the explicit statutory command.

Third, if we assume, arguendo, that petitioners’ under-

lying claims against the United States based on breach of

an implied-in-fact contract and taking of property on the

atolls at the time of the nuclear testing program are dis-

tinct property rights, the statutory provisions that required

the courts below to dismiss petitioners’ suits for lack of

jurisdiction did not extinguish or renounce those claims.

As the Claims Court observed, “in none of these cases, has

Congress abolished [petitioners’) claims. The Compact

recognizes the United States’ obligations to compensate

tor damages trom the nuclear testing program and the Sec-

tion 177 Agreement establishes an alternative tribunal to

provide such compensation.” Pet. App. 5%a. Under

Lynch, it clearly would have been constitutional for Con-

gress to enact only the withdrawal of consent for peti-

tioners to sue the United States, while otherwise leaving

their underlying claims unaffected and making no provi-

sion for their ultimate resolution. Congress’s identical ac-

tion here is not rendered unconstitutional by virtue of the

fact that Congress coupled that action with an a/fernative

mechanism for compensating those affected by the nuclear

testing program —through the health programs, atoll dis-

tributions, and Claims Tribunal provisions of the Section

177 Agreement.

Fourth, petitioners did not in any event amend their

complaints following Congress’s approval and enactment

into law of the Compact and Section 177 Agreement to

allege that the claims-settlkement agreement extinguished

their underlying claims and thereby deprived them of

property (their claims against the United States) without

just compensation. Their complaints advance only the

underlying claims for a taking of property and breach of

implied-in-fact contracts in the Marshall Islands. As a

result, this case does not properly present the question of a

“taking” Gf the claims that petitioners now seek to raise.

b. Petitioners also err in relying (Pet. 7-9) on Blan-

chette v. Connecticut General Insurance Corp., 419 U.S.

102 (1974), Dames & Moore v. Regan, 453 U.S. 654

(1981), and Ruckelshaus v. Monsanto Co., 467 U.S. 986

(1984), for the proposition that an ultimate Tucker Act

remedy must be available in order to sustain the jurisdic-

tional provisions requiring dismissal of their suits. In those

cases, the Court considered the availability of just com-

pensation under the Tucker Act before giving effect to

statutory provisions (or, in Dames & Moore, an Executive

Agreement) that were themselves alleged to constitute a

taking of property. Here, by contrast, Congress enacted a

jurisdictional bar that required dismissal of petitioners’

suits but did not extinguish their underlying claims. Under

Lynch, that withdrawal of jurisdiction to sue the United

States is not, in itself, a taking of property.

Moreover, the measures at issue in Blanchette, Dames &

Moore, and Monsanto took very different forms, and ad-

dressed vastly different needs, than did the Compact and

Section 177 Agreement. In Blanchette, the Court’s Tucker

Act determination turned on the fact that the compelled

continuation of rail operations under the Kegional Rail

Reorganization Act of 1973 might accelerate erosion of

the plaintiffs’ interests “through accrual of post-bank-

ruptcy claims having priority over their claims.” 419 U.S.

at 123-124. “Thus, failure to decide the availability of the

Tucker Act would raise the distinct possibility that those

plaintiffs would suffer an ‘erosion taking’ without ade-

quate assurance that compensation will ever be provided.”

Id. at 124. The statute at issue in Monsanto mandated an

arbitration procedure to determine the amount of com-

pensation owed by pesticide registration applicants to

earlier registrants On whose data the applicants rely. 467

U.S. at 1018. Even in finding that the registration statute

did not withdraw Tucker Act jurisdiction, the Court held

that claimants must first exhaust the required procedure,

because “[e]xhaustion of the statutory remedy is necessary

to determine the extent of the taking that has occurred.”

467 U.S. at 1018 n.21. The executive agreement in Dames

& Moore established a temporary Iran-United States

Claims Tribunal to conduct binding arbitration for resolv-

ing claims arising from the 1979 Iranian revolution. 453

U.S. at 664-665. Because the Tribunal was vested with

limited jurisdiction, the possibility remained that certain

claims Outside that jurisdiction might not be adjudicated

at all; and it also was alleged that a taking might result if a

claimant received less than what he believed to be the full

value of his claim. /d. at 664-665, 691.

The Compact and Section 177 Agreement at issue here

are far different. They respond to the complex, long-term

consequences of the nuclear testing program by providing

a perpetual source of funding, establishing a diverse com-

pensation plan, and providing for health-care programs,

distributions to atolls for a local determination of needs,

and a Claims Tribunal to adjudicate individual claims.

The Section 177 Agreement itself is an integral and diplo-

matically vital element of a comprehensive agreement es-

tablishing relations between two sovereigns.

Moreover, unlike Dames & Moore, which involved alle-

gations of a taking arising out of measures undertaken by

the United States Government to settle the claims of its

own nationals, this case involves a challenge to the

espousal by the Government of the Marshall Islands of the

claims of its citizens against the United States. If peti-

tioners Object to the measures their Government under-

took on their behalf, their complaint should be directed to

the Government of the Marshall Islands. If that Govern-

ment should conclude in the future that the overall settle-

ment is inadequate, it should advance that position, on

behalf of its citizens, On a government-to-government

basis, as expressly provided for in Article IX of the Section

177 Agreement (Pet. App. 63a). It would have been incon-

sistent with the settkement agreement and the sovereign

status of the Marshall Islands in the post-trusteeship era to

keep the jurisdiction of the Claims Court available on an

open-ended basis to individual Marshallese citizens who

seek to challenge their own government’s diplomatic

undertakings. By contrast, the alternative mechanism

established by the Compact and Section 177 Agreement

respects the sovereignty and constitutional authority of the

Marshall Islands, as well as the capacity of its institutions

to determine the nature and dimension of the injuries to

person and property that resulted from the nuclear testing

program and the continuing and future needs of its people

in light of that program and the new status of the Islands.

The wisdom of the alternative mechanism approved by

the Government and people of the Marshall Islands and

the President and Congress of the United States also must

be considered in light of the long history of ex gratia com-

pensation accepted by petitioners; past waivers of claims

given in connection with those payments; the numerous

legal, evidentiary, and practical obstacles petitioners faced

in recovering on their claims in United States courts; and

the questionable suitability of traditional lawsuits to ad-

dress the impact that the nuclear testing program had on

entire communities. Compare Dames & Moore, 453 U.S.

at 687. As the Claims Court found, petitioners’ claims,

which would have required each individual petitioner to

prove ownership of specific Marshall Islands property, its

valuation, and the amount of compensation which should

be paid, “involve[d] substantial evidentiary problems”

(Pet. App. 58a). Moreover, the United States had raised

substantial legal arguments against petitioners’ claims, in-

cluding that the Fifth Amendment’s Just Compensation

Clause was inapplicable under the United Nations Trustee-

ship system, that the circumstances did not give rise to

implied-in-fact contracts, and that petitioners’ claims are

barred by the statute of limitations. Although the Claims

Court rejected some of those defenses in some of the in-

dividual cases below, petitioners faced the risk that those

defenses would ultimately prevail. Congress and the

Government and people of the Marshall Islands reason-

ably could conclude that, in light of these considerations,

protracted litigation in the Claims Court (and in other

courts on related FTCA claims) should not continue to be

a source of political, diplomatic, and legal friction in the

new relationship of free association. !!

c. Absent amendment to the Compact by the two gov-

ernments, the Fund will operate in perpetuity to compen-

’

'! The uncertainties occasioned by the novel nature of petitioners

claims also would create substantial problems of valuation if a court

were (O determine that those claims constituted “property” interests

that were “taken” by the statutory provisions requiring dismissal of

petinioners’ suits.

sate any claims that have arisen or may arise from the test-

ing program; and after 15 years, at least 75% of the pro-

ceeds of the Fund must be used to satisfy the requirements

of the Claims Tribunal in paying the property and per-

sonal injury claims of citizens of the Marshall Islands. The

Section 177 Agreement has, to date, functioned precisely

as planned. We have been informed by the Department of

State that all required payments have been made as sched-

uled, the Claims Tribunal is sitting, and the Fund con-

tinues to generate al! necessary proceeds. '?

Moreover, contrary to the impression left by petitioners’

submission (see Pet. 3-4 & n.7), the Claims Tribunal in the

Marshall Islands is not the only source of funding for

payments to persons, such as petitioners, who were affected

by the nuclear testing program. The substantial amounts

that will be paid to the Distribution Authorites over the

first 15 years that the Section 177 Agreement is in effect

may be used to make per capita payments to individuals, in-

cluding a substantial number of the petitioners herein, and

reports filed with the Department of State show that many

such per capita payments are regularly being made. Those

payments, as well as other benefits furnished to petitioners

under the Compact and other assistance programs, would

have to be taken into account in determining the adequacy

of the total compensation that petitioners and others will

receive for any injuries and losses resulting from the

nuclear testing program. -

It is perhaps conceivable that even the continuous-fund-

ing mechanism provided by the Compact could prove in-

'2 We have been informed by the Department of State that of the

initial $150 million paid to the Fund, $18 million was applied im-

mediately to meet first year program distribution requirements. In-

vestment of the remaining $132 million has generated sufficient pro-

ceeds so that, even after an additional 12 years of program distribu-

tions, the Fund’s principal has increased to $142 million, and it is ex-

pected to reach the original $150 million amount in the near future.

adequate to satisfy future needs, should radical long-term

investment difficulties develop for the Fund or if there are

substantial unforeseen claims. Such contingencies, how-

ever, are highly remote and speculative. By contrast, the

permanent Fund in fact is operating and is furnishing a

mechanism for the payment of claims. Moreover, peti-

tioners themselves recognize that Congress need not ad-

dress a future compensation shortfall only through a

judicial Tucker Act remedy, but may adopt some other

equivalent remedy. In the context of the complex needs

addressed by the Section 177 Agreement, that remedy

could take many forms. Congress, in consultation with the

Marshall Islands Government, could determine that more

funds should be provided for medical programs or radio-

logical monitoring, or for direct payment to atoll dis-

tribution authorities, or to the Claims Tribunal for claims

awards. Congress thus could simply increase funding

under the already-established compensation structure. '?

Alternatively, Congress could provide other remedies for

categories of claims that it determines not to have been

'3 The “Changed Circumstances” provision, contained ' Article IX

of the Section 177 Agreement (Pet. App. 63a), contemplates that ap-

proach. It states that “[i]f loss or damage to property and person of

the citizens of the Marshall Islands * * * arises or is discovered after

the effective date of this Agreement,” rendering it “manifestly inade-

quate,” the Marshall Islands “may request that the Government of the

United States provide for such injuries by submitting such a request to

the Congress” (/bid.). While such a request would not be binding on

Congress (/bid.), Congress, in approving Article IX, recognized its

continuing role in assuring that the Section 177 Agreement provides

full compensation. The Senate floor manager of the Compact stated

as to this provision: “{T]here is a continuing moral and humanitarian

obligation on the part of the United States to compensate any vic-

tims — past, present or future—of the nuclear testing program. For

this reason, I fully expect that if new claims develop Congress should

and will provide any assistance required, absent compelling contra-

dictory evidence.” 131 Cong. Rec. 32,101 (1985).

compensated under the Section 177 Agreement. It would,

however, be wholly premature to require Congress to

make such a determination at this point. And no decision

of this Court requires Congress to do so now, as a condi-

tion to implementing a settlement in the unique and diffi-

cult circumstances to which the Compact of Free Associa-

tion was addressed.

3. Finally, even if petitioners were correct that Con-

gress intended (or the Constitution requires) the juris-

dictional bar to be conditioned upon a judicial deter-

mination of the validity of the espousal, the judgment of

the court of appeals is correct. Petitioners concede (Pet.

12) that espousal is a recognized mechanism for settling

claims under international law and that if the espousal of

their claims by the Government of the Marshall Islands

was consistent with international law, “then their claims

have been validly extinguished.” As Chief Judge Wald

concluded in her concurring opinion in Anotolok (slip op.

19-21), it is clear that petitioners’ challenge to the authori-

ty of the Government of the Marshall Islands to espouse

their claims does not furnish a basis for setting aside the

claims-settlement agreement.

The Republic of the Marshall Islands gradually assumed

sovereign authority over the Marshall Islands from the

early days of the Trusteeship until, through constitutional

self-government, it became the legally recognized suc-

cessor to the former Trust Territory Government (Pet.

App. 34a). During the Trusteeship period, Marshall

Islands residents were “citizens of the Territory, not of the

United States” (Porter v. United States, 496 F.2d 583, 588

(Ct. Cl. 1974), cert. denied, 420 U.S. 1004 (1975)), and

they “now are citizens of the [Republic of the Marshall

Islands], a state whose capacity for self-government is ot-

ficially recognized” (Pet. App. 34a). As the successor

government, whose sovereignty petitioners no longer chal-

lenge, the Government of the Marshall Islands has full

authority under longstanding principles of international

law and custom to espouse and settle its citizens’ claims. L.

Henkin, Foreign Affairs and the Constitution 262 (1972),

cited in Dames & Moore v. Regan, 453 U.S. at 679; Kelso,

Espousal: Its Use in International Law, | Ariz. J. of Inter-

nat’l and Comp. Law 233, 234 (1982); I. Brownlie, Prin-

ciples of Public International Law 481-482 (3d ed. 1979).

Petitioners objected below to the espousal on the

ground that it did not conform to the principle of con-

tinuity of nationality, which is intended to prevent abuses

of the espousal process that could result from the assign-

ment of claims to persons who are nationals of another,

perhaps stronger, nation. As Chief Judge Wald explained,

however, even as a matter of international law and

custom, that principle is no obstacle to the espousal here,

because the claims have at all times been held by citizens of

the Republic of the Marshall Islands or its predecessors,

and have been espoused by the official representatives of

those citizens. Moreover, the principle of continuity of na-

tionality is essentially a defense that may be raised by the

foreign State against which claims are espoused, not a

basis for a citizen to object to espousal by his own govern-

ment. Antolok, slip op. 21-22 (Wald, C.J., concurring).

Congress has the constitutional authority to waive avail-

able defenses pursuant to its power “to pay the Debts * * *

of the United States” (U.S. Const. Art. I, § 8, Cl. 1). See

United States v. Sioux Nation of Indians, 448 U.S. 371,

395-407 (1980).

In any event, a court may not invalidate an Act of Con-

gress because of its own view that the Act does not fully

conform to international law and custom; it may invali-

date an Act of Congress only if it does not conform to the

Constitution of the United States. Anto/ok, slip op. 19-21.

Here, Congress properly could determine that it should

approve a settlement based on the well-established practice

of espousal, as adapted to the special circumstances of the

Marshall Islands and as an incident to entering into a new

relationship with them.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General*

a DONALD A. CARR

q Acting Assistant Attorney General

JACQUES B. GELIN

JOHN T. STAHR

Attorneys

ABRAHAM D. SOFAER

Legal Adviser

HOWARD L. HILLS

Office of Freel)

Associated State Affairs

Davib A. BALTON

Attorney-Adviser

Department Of State

i May 1989

APPENDIX

Section 177 of the Compact of Free Association be-

tween the United States and the Government of the Mar-

shall Islands, as enacted by Title Il of the Compact of Free

Association Act, Pub. L. No. 99-239, 99 Stat. 1812, pro-

vides:

(a) The Government of the United States accepts

the responsibility tor compensation Owing to citizens

of the Marshall Islands, or the Federated States of

Micronesia (or Palau) for loss or damage to property |

and person of the citizens of the Marshall Islands, or

the Federated States of Micronesia, resulting from the

nuclear testing program which the Government of the

United States conducted in the Northern Marshall

Islands between June 30, 1946, and August 18, 1958.

(b) The Government of the United States and the d

Government of the Marshall Islands shall set forth in

a separate agreement provisions for the just and ade- 4

quate settlement of all such claims which have arisen |

in regard to the Marshall Islands and its citizens and

Which have not as yet been compensated or which in

the future may arise, for the continued administration

by the Government of the United States of direct

radiation related medical surveillance and treatment

programs and radiological monitoring activities and

tor such additional programs and activities as may be

mutually agreed, and for the assumption by the

Government of the Marshall Islands of responsibility

for enforcement of limitations on the utilization of

attected areas developed in cooperation with the ;

Government of the United States and tor the assist-

ance by the Government of the United States in the

exercise of such responsibility as may be mutually

agreed. This separate agreement shall come into et-

(la)

fect simultaneously with this Compact and shall re-

main in effect in accordance with its own terms.

provide to the Government of the Marshall Islands,

on a grant basis, the amount of $150 million to be

paid and distributed in accordance with the separate

agreement referred to in this Section, and shall pro-

vide the services and programs set forth in this

separate agreement, the language of which is incor-

porated into this Compact.

* US GOVERNMENT PRINTING OFFICE. 1989— 24169900283

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.