Opposition Brief — Gumby v. General Public Utilities Corp.

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Supreme ‘ourt, U.S.

yy o

No. 91-676 FEB 5

1992

OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1991

JOHN W. GUMBY, SR. ET AL., PETITIONERS

GENERAL PUBLIC UTILITIES CORPORATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

PETER R. MAIER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether 28 U.S.C. 1447(d) bars a court of

appeals from hearing an appeal of a certified ques-

tion under 28 U.S.C. 1292(b), where the question

arose in connection with a district court decision that

a case should be remanded to state court on the

ground that, although a federal statute authorized

the removal, that statute was unconstitutional.

2. Whether Congress possessed the power under

Article III of the Constitution to confer jurisdiction

upon the federal district courts over ‘public liability

actions” under the Price-Anderson Amendments Act

of 1988, 42 U.S.C. 2210(n) (2).

3. Whether a statute could constitutionally pro-

vide for the removal from state court to federal court

of actions pending at the time the statute was en-

acted.

(1)

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TABLE OF CONTENTS

Page

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sl aeacniuaoaesaipeniinanibaiaibains 2

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ak ATA a 18

TABLE OF AUTHORITIES

Cases:

Bear River Drainage District, In re, 267 F.2d 849

TSE ART 10, 11

Federal Sav. & Loan Ins. Corp. v. Frumenti Devel-

opment Corp., 857 F.2d 665 (9th Cir. 1988) _...... 10, 11

Kiick v. Metropolitan Edison Co., 784 F.2d 490

I dinsiuie ie eenesininiienii 4

Metropolitan Cas. Ins. Co. v. Stevens, 312 U.S. 563

Ne a oe ahdssaraveweaiting 12

Molzof v. United States, No. 90-838 (Jan. 14,

i DE TS te 0h 16

Nasuti Vv. Scannell, 906 F.2d 802 (1st Cir. 1990).... 11

O’Conner Vv. Commonwealth Edison Co., 770 F.

SO ME GR, BU, BOE D coe cncccccccewesececenannssnveeese 13, 17

Osborn ¥. Bank of the United States, 22 U.S. (9

BG SS eee wee 13

Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation & Development Comm’n,

i __. AER na eee eee 15

Railway Co. v. Whitton’s Administrator, 80 U.S.

UPI I I on avewsverecpecnumencanevees 18

Richards v. Federated Dep’t Stores, Inc., 812 F.2d

a casedebpasiuionanwessuaeen’ 10, 11

Silkwood Vv. Kerr-McGee Corp., 464 U.S. 238

LAE SE a ES Se eae a 15

Stibitz v. General Public Utilities Corp., 746 F.2d

993 (3d Cir. 1984), cert. denied, 469 U.S. 1214

ESE AS Ry REED ea Soientie ra ene ee eA a 4,5

Tennessee V. Davis, 100 U.S. 257 (1880) |............... 18

(III)

Cases—Continued : Page

Textile Workers Union V. Lincoln Mills, 353 U.S.

FSB | RT DE Aa Sect oS Marte Beeston 14

The Mayor v. Cooper, 73 U.S. (6 Wall.) 247

pea aA eGR AT aE erhertee eID It EDD 14

Thermtron Prods., Inc. V. Hermansdorfer, 423 U.S.

eae SOU Se A ESE 6, 11,12

United States v. Sperry Corp., 493 U.S. 52 (1989)... 18

Verlinden B.V. v. Central Bank, 461 U.S. 480

I a tebeuanrcaibecaaans 18, 14

Constitution and statutes:

U.S. Const. :

Art. I, § 8, Cl. 3 (Commerce Clause) _........... 17

PR Ra ete eres ane a ant eer 5, 7, 13, 15, 17

Act of Nov. 19, 1988, Pub. L. 100-702, Tit. X,

S BOIS CE), BGG Beet. GOGO nn eee 11

Atomic Energy Act of 1954, ch. 1073, 68 Stat.

EE Hasan eccalesddateticiesh dadsedeidksacsiveglaiatiscinoais aan 2

Bankruptcy Reform Act of 1978, 11 U.S.C. 101-

) Siete NC CVU OPER LRRD OIE Ea cena 14

Federal Deposit Insurance Act, 12 U.S.C. 1819 14

Federa! Tort Claims Act, 28 U.S.C. 1346(b) _......... 14

Outer Continental Shelf Lands Act, 43 U.S.C. 1331

fiat tats ase ce SIR ar Re a REAR SADA NW ee 14

Price-Anderson Act, Pub. L. No. 85-256, 71 Stat.

eR Ra An OME a Santi Sa ae eS ES Sh PERE ele AE 2

Price-Anderson Amendments Act of 1988, Pub. L.

No. 100-408, 102 Stat. 1066 2. 4, 18,17

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42 U.S.C. 2210(e) ...................... POR Ray a 3, 16

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Statutes—Continued : Page

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42 U.S.C. 2316(n) (2) (I9SS) ..........-nceconseseeeccsese0 5

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as MTD 5s daninchuccensicice <tecinadteaideunsacanneoee tld 6,9, 10,11

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I IE vosecaicsssevnscoisvncacsmncuocetuciiunadescnnoend 6, 9,10, 11, 12

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I, I vai serine vets dticdeise castcuneana eueacteptoaeees 5

Oe TE. BOR HED vsovacecercceecsastiessnininns 14

Miscellaneous:

H.R. Rep. No. 104, 100th Cong., 1st Sess. Pt. 1

SRSA Reprarene asrsene mes Renee fester BRR Reet DT oP SNAG MIE 17

Iu the Sigwenwe Cont uf the Wnited States

OCTOBER TERM, 1991

No. 91-676

JOHN W. GUMBY, SR. ET AL., PETITIONERS

Vv.

GENERAL PUBLIC UTILITIES CORPORATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

A23-A138) is reported at 940 F.2d 832. The opinion

of the district court (Pet. App. A139-A158) is re-

ported at 735 F. Supp. 640.

JURISDICTION

The judgment of the court of appeals was entered

on July 26, 1991. The petition for a writ of certi-

orari was filed on October 28, 1991. The jurisdiction

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

(1)

STATEMENT

Under the Price-Anderson Amendments Act of

1988, Pub. L. No. 100-408, 102 Stat. 1066 (the

1988 Amendments), a defendant may remove any

pending “pubile liability action” arising out of

or resulting from a nuclear incident to federal

district court. 42 U.S.C. 2210(n) (2). These consoli-

dated cases, originally brought in state courts in

Pennsylvania, New Jersey, and Mississippi, are pub-

lic liability actions, see 42 U.S.C. 2014(hh), and

arise from alleged radiation leaks from the Three

Mile Island Unit 2 (TMI) nuclear plant following

the accident that occurred there on March 28, 1979.

Plaintiffs in most of these actions brought claims for

personal injury. In several actions, plaintiffs brought

claims for loss of tourism business. The defendants

are owners of TMI, persons responsible for its de-

sign, construction, and maintenance, suppliers of

equipment used at TMI, and related companies.

1. In light of the strong federal interest in and

pervasive regulation of the safety aspects of nuclear

power, Congress enacted the Price-Anderson Act,

Pub. L. No. 85-256, 71 Stat. 576, in 1957 (the Act)

as an amendment to the Atomic Energy Act of 1954,

ch. 1073, 68 Stat. 919. Through the Act, Congress

sought to encourage private industry to participate in

the commercial development of nuclear power by re-

moving the deterrent of potentially unlimited liability

that might result from a nuclear incident. Congress

also acted to ensure that, in the event of such a

nuclear incident, adequate funds would be available

to compensate injured persons. See 42 U.S.C.

2012 (i)

To accomplish these goals, the Act, as amended,

establishes a system of private insurance, industry-

wide financial support, and government indemnity to

satisfy “public liability” claims, defined in the Act as

“any legal liability arising out of or resulting from a

nuclear incident or precautionary evacuation.” 42

U.S.C. 2014(w). A “nuclear incident” is “any occur-

rence * * * causing * * * bodily injury, sickness, dis-

ease, or death, or loss of or damage to property, or

loss of use of property, arising out of or resulting

from the radioactive, toxic, explosive, or other haz-

ardous properties of source, special nuclear, or by-

product material.” 42 U.S.C. 2014(q).

The Act requires each licensee of a commercial nu-

clear power reactor to secure and maintain a speci-

fied amount of insurance from private sources

against public liability claims and to participate in

an industry-wide pool that would provide financial

support to pay public liability claims from other li-

censees. 42 U.S.C. 2210(a) and (b). The Act pro-

vides that the government will indemnify a licensee

for public liability claims that exceed the amount of

private insurance and industry-wide financial sup-

port, up to an aggregate limit on liability arising

from a single incident. 42 U.S.C. 2210(c) and (e).

If aggregate liability exceeds that limit, the Act

provides for mechanisms to obtain additional funding

and to distribute the available funds equitably.

Those mechanisms. include requirements that the

President formulate and Congress review under ex-

pedited procedures a plan to provide for more funds

and to distribute available funds equitably. 42

U.S.C. 2210(e)(2) and (i). In addition, the Act

provides that, where the aggregate liability limits

may be exceeded, the district court in the district

where the incident occurred shall limit payments to

any single claimant and formulate a plan of compen-

sation to distribute available funds equitably among

current claimants and future claimants whose injur-

ies have not yet become manifest. 42 U.S.C. 2210(0).

In addition to the interrelated insurance, com-

pensation, limitation of liability, and distribution

provisions, the Act provides for the channeling of

liability to operators of nuclear facilities and away

from others who might bear such liability under or-

dinary tort principles. 42 U.S.C. 2014(t) and (w),

2210(a). See generally Kiick v. Metropolitan Edison

Co., 784 F.2d 490, 491 (3d Cir. 1986).

Finally, as amended by the Price-Anderson Amend-

ments Act of 1988, the Act provides for federal juris-

diction over any “public liability action,” 42 U.S.C.

2210(n) (2), defined as “‘any suit asserting public lia-

bility.” 42 U.S.C. 2014(hh). The Amendments fur-

ther provide for the choice of law in a public liability

action: “the substantive rules for decision in such

action shall be derived from the law of the State in

which the nuclear incident involved occurs, unless

such law_is inconsistent with the provisions of [42

U.S.C. 2210].” 42 U.S.C. 2014(hh). The Amend-

ments also authorize the removal to federal court of

any public liability action pending in a state court at

the time of enactment of the Amendments, upon mo-

tion of either a defendant, the Nuclear Regulatory

Commission (NRC), or the Secretary of Energy. See

42 U.S.C. 2210(n) (2). See generally Pet. App. A8i

(summarizing incidents of public liability actions).

The net result of the Act, as amended, is thus to

assure uniformity, equity, and efficiency in the dis-

position of claims in suits already filed, as well as

those filed in the future.

2. In 1984, prior to the 1988 Amendments, the

Third Circuit held in Stibitz v. General Public Utili-

ties Corp., 746 F.2d 993 (1984), cert. denied, 469

U.S. 1214 (1985), that the Act did not provide fed-

eral subject matter jurisdiction over actions filed by

plaintiffs arising from the accident at TMI.’ Follow-

ing the Third Circuit’s remand, the district court re-

turned the pending actions to the state courts either

by remand or under applicable state law. Subse-

quently, other plaintiffs filed hundreds of additional

actions in state courts arising from the same subject

matter. Pet. App. A37-A39.

3. Following enactment of the 1988 Amendments

on August 20, 1988, defendants in cases already

pending filed timely motions to remove them to the

United States District Court for the Middle District

of Pennsylvania. Defendants also removed actions

filed subsequently. Pet. App. A40. In November

1988, petitioners asked the district court to re-

mand the actions to the state courts from which they

had been removed. Petitioners based their claim,

inter alia, on the assertion that, although Congress

intended to confer federal jurisdiction over public

liability actions, such actions exceeded the scope of

federal question jurisdiction under Article III of the

Constitution. Pet. App. A40. Defendants opposed

the remand petitions, as did the United States, which

had intervened pursuant to 28 U.S.C. 2403 because

the proceedings drew into question the constitution-

ality of the 1988 Amendments. Pet. App. A40.

Agreeing with petitioners that the federal courts

could not constitutionally exercise jurisdiction over

1Prior to enactment of the 1988 Amendments, federal

courts had original jurisdiction only over public liability ac-

tions “arising out of or resulting from an extraordinary nu-

clear occurrence.” See 42 U.S.C. 2210(n) (2) (1982). See also

42 U.S.C. 2014(j) (defining extraordinary nuclear occur-

rence). Under the Act, the Nuclear Regulatory Commission

has conclusively determined that the TMI accident was not an

extraordinary nuclear occurrence. See Stibitz v. General Pub-

lic Utilities Corp., 746 F.2d at 996 n.3.

public liability actions and that the statute conferring

federal jurisdiction over such actions was accordingly

unconstitutional, the district court granted petition-

ers’ motion to remand the actions to the state courts

in which they had been filed. Pet. App. A139-A140.

The district court certified its holding on the constitu-

tionality of the statute for interlocutory appeal un-

der 28 U.S.C. 1292(b). The United States and the

defendants filed a petition for permission to take an

interlocutory appeal of the district court’s determina-

tion of that question, and the court of appeals

granted such permission by order of July 12, 1990.

Pet. App. A41.

4. The court of appeals reversed. Pet. App. A23-

A188. Initially, the court determined that it was not

barred from exercising appellate jurisdiction in this

ease by 28 U.S.C. 1447(d), which provides that

“Tajn order remanding a case to the State court from

which it was removed is not reviewable on appeal

or otherwise.” The court noted that both the ma-

jority and dissenting opinions in Thermtron Prods.,

Inc. v. Hermansdorfer, 423 U.S. 336 (1976), had

stated that Congress intended in Section 1447(d) to

bar appellate review of district court determinations

as to whether removal was authorized by the con-

trolling statute. 423 U.S. at 351; id. at 355 (Rehn-

quist, J., dissenting) (Congress “‘made the district

courts the final arbiters of whether Congress in-

tended that specific actions were to be tried in a fed-

eral court.”). See Pet. App. A48, A61. The court

concluded that Congress did not intend in Section

1447(d) to “make district courts the final arbiters

of the constitutionality of federal statutes.” Pet.

App. A61. Accordingly, the court held that it “[could

not] read section 1447(d) to bar appellate review of

a district court’s decision that the statute which pur-

ports to confer federal jurisdiction is constitutional,

where the district court, recognizing the complexity

and magnitude of the constitutional question before

it, certifies that question for immediate appeal pur-

suant to 28 U.S.C. § 1292(b).” Pet. App. A64.’

Turning to the merits of petitioners’ claim that the

1988 Amendments are unconstitutional, the court of

appeals rejected petitioners’ argument that those

Amendments exceeded Congress’s power to vest fed-

eral courts with jurisdiction over cases arising under

the laws of the United States. The court first held

that, in “explicitly providing that the ‘substantive

rules for decision’ in public liability actions ‘shall be

derived from’ the law of the state in which the nu-

clear incident occurred, * * * Congress expressed its

intention that state law provides the content of and

operates as federal law.” Pet. App. A85. Analogizing

the 1988 Amendments to numerous other statutes that

provide for the use of state rules of decision in fed-

eral causes of action, Pet. App. A83-A87, the court

found that federal law thus governs public liability

actions and such actions come within the scope of

Article III “arising under” jurisdiction. Pet. App.

A87.

Ajternatively, the court of appeals held that even if

state law provides the rules of decision ex proprio

vigore in public liability actions, “there are important

federal questions to be resolved which are indispensa-

ble ingredients of the public liability action,’ Pet.

App. A96, and such actions therefore come within the

Article IIT grant of federal question jurisdiction. See

* Accordingly, the court did not reach the question whether

it would have been appropriate to exercise appellate jurisdic-

tion under 28 U.S.C. 1291 or to issue a writ of mandamus

under 28 U.S.C. 1651.

Pet. App. A87-A96. The court stated that “the duty

the defendants owe the plaintiffs in tort is dictated

by federal law,” Pet. App. A91, and also noted that

numerous other aspects of federal law are implicated

in a public liability case, such as limitations on de-

fenses, restriction of punitive damages, and choice of

law. Pet. App. A91.

Finally, the court of appeals sustained the provi-

sions in the 1988 Amendments that authorize appli-

cation of the statute to cases pending at the time of

enactment. The Court rejected petitioners’ claims

that this procedure violated constitutional principles

of federalism, state sovereignty, due process, and

equal protection. Pet. App. A96-A99.

In a concurring opinion (Pet. App. A100-A138),

Judge Scirica upheld the constitutionality of the

Amendments under a test that looks to the likeli-

hood that substantive issues of federal law will

arise in a particular class of cases and whether

original jurisdiction, as opposed to removal or

appellate jurisdiction, is important to the achieve-

ment of the purposes Congress sought to achieve.

Pet. App. A117-A118, A137. In particular, Judge

Scirica found it significant that Congress enacted

provisions designed to ensure the equitable allocation

of available funds among claimants when the Act’s

aggregate liability limits are exceeded, including the

reservation of funds for claimants whose injuries do

not become manifest unti! long after an accident.

Judge Scirica noted that those provisions could

achieve their goal only through exercise of original

federal jurisdiction over public liability actions. Pet.

App. A133-A136.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of

any other court of appeals. Accordingly, further re-

view is not warranted.

1. The court of appeals correctly determined that

28 U.S.C. 1447(d) did not bar it from exercising

jurisdiction under 28 U.S.C. 1292(b). Although Sec-

tion 1447(d) precludes further review of district

court decisions concerning the application of juris-

dictional statutes to particular cases, that Section

should not be read to preclude all review of district

court decisions holding that a statute authorizing re-

moval is unconstitutional.’

a. Petitioners’ primary contention is that the

Third Circuit has created an exception to Section

1447(d) for cases in which a district court decides

“a question of constitutional proportion,” Pet. 11,

and that that exception “has rendered meaningless

the appellate review prohibition of § 1447(d).” Pet.

8. Petitioners, however, misstate the holding of the

court of appeals. The court began its discussion with

a precise formulation of the question presented:

“whether Congress intended to insulate from review

those remand orders which rest on the district court’s

finding that it lacks subject matter jurisdiction be-

cause the statute containing the grant of federal

jurisdiction is, itself, unconstitutional.” Pet. App.

* Independently, the court of appeals’ decision to exercise

jurisdiction is supported by the fact that the district court in

this case stayed its order granting the motion to remand. The

court thus never entered an order remanding these actions to

the state courts from which they were removed and a pre-

requisite for application of 28 U.S.C. 1447(d) is therefore

lacking in this case.

A42. The court’s holding was similarly precise: Sec-

tion 1447(d) does not bar “appellate review of a dis-

trict court’s decision that the statute which purports

to confer federal jurisdiction is constitutional.” Pet.

App. A64. And even that holding was qualified: such

review is permitted ‘where the district court, recog-

nizing the complexity and magnitude of the consti-

tutional question before it, certifies that question for

immediate appeal pursuant to 28 U.S.C. § 1292(b).”

Ibid.

In short, the court of appeals addressed a specific

question concerning reviewability of district court de-

cisions holding jurisdictional statutes unconstitu-

tional and, even as to that question, limited its “nar-

row,” Pet. App. A64, holding to cases involving inter-

locutory review of certified questions under 28 U.S.C.

1292(b). Petitioners advance no reason why the

court of appeals’ holding would be particularly diffi-

cult to apply in future cases or would interfere with

the normal operation of Section 1447(d) to bar ap-

pellate review of remand orders.

Moreover, petitioners cite no prior case in which a

district court has remanded a case to state court on

the ground that the statute authorizing federal juris-

diction was unconstitutional. The court of appeals

itself recognized that the facts giving rise to the re-

viewability issue in this case are “unique.” Pet. App.

A53.*

4 Petitioners assert (Pet. 10) that the decision of the court

of appeals conflicts with decisions of other courts of appeals

in three other cases, Richards v. Federated Dep’t Stores, Inc.,

812 F.2d 211 (5th Cir. 1987) (per curiam) ; Federal Sav. &

Loan Ins. Corp. Vv. Frumenti Development Corp., 857 F.2d 665

(9th Cir. 1988) ; In re Bear River Drainage District, 267 F.2d

849 (10th Cir. 1959). None of the three cases, however, raised

b. Contrary to petitioners’ contention (Pet. 4),

the decision below is also consistent with this Court’s

decision in Thermtron Prods., Inc. vy. Hermansdor-

fer, 423 U.S. 336 (1976). In Thermtron, the Court

explained that, under 28 U.S.C. 1447(c), a district

court shall order remand “[i]f at any time before

final judgment it appears that the case was removed

improvidently and without jurisdiction,” *® and that

Section 1447(d) forbids review of remand orders is-

sued pursuant to Section 1447(c). See 423 U.S. at

342-343. But the Court held that, where the district

court has based its remand order not on its applica-

or decided the question presented here. In Richards, the court

did refer briefly to preclusion of review for “constitutional

infirmities,” 812 F.2d at 211, but the attempted appeal of the

remand order in that case was based on one party’s complaint

that it had not had a fair opportunity to litigate the remand

issue. /bid. There is no indication that the district court based

its remand order in Richards on a finding that a statute con-

ferring federal jurisdiction was unconstitutional, and Richards

accordingly casts no light on how the Fifth Circuit would have

resolved this case. Similarly, Frumenti and Bear River both

involved attempts to appeal remand orders pursuant to 28

U.S.C. 1292(b), but in both cases the remand was premised

on a finding that federal jurisdiction was lacking under the

controlling statute, not a holding that that statute was uncon-

stitutional. See Frumenti, 857 F.2d at 666-667; Bear River,

267 F.2d at 850-851.

In 1988, Congress amended 28 U.S.C. 1447(c), effective

November 19, 1988, to provide that “[i]f at any time before

final judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.” Act of Nov.

19, 1988, Pub. L. No. 100-702, Tit. X, § 1016(c), 102 Stat.

4670. The amended version of Section 1447(c) was in effect

at the time of the district court’s March 16, 1990 order. The

1988 amendment does not reflect a substantive change that

affects resolution of the issue in this case. See Nasvti v.

Scannell, 906 F.2d 802, 806 n.7 (1st Cir. 1990).

tion of a jurisdictional] statute under Section 1447

(c), but on some other factor, Section 1447(d) does

not necessarily bar review of that order.

Nothing in Thermtron suggests that where the re-

mand is based, as it is here, on a determination that

“the controlling statute,” 423 U.S. at 345, 351, is

itself unconstitutional, Section 1447(d) precludes

any review of that determination. As the dissenting

opinion in Thermtron put it, in enacting Section

1447(d), Congress “made the district courts the final

arbiters of whether Congress intended that specific

actions were to be tried in a federal court.” 423 U.S.

at 355 (Rehnquist, J., dissenting) (emphasis added).

Section 1447(d) insulates from any appellate review

district court determinations whether and how a par-

ticular jurisdictional statute applies in a given case.

To adopt petitioner’s position would be to extend

the scope of unreviewable district court decisions dra-

matically. Because 28 U.S.C. 1447(d) makes remand

orders “not reviewable on appeal or otherwise,” it

bars all review of an order within its scope, including

review by the Supreme Court or by any other tri-

bunal reviewing orders issued in the various state

proceedings following the district court’s remand. See

Metropolitan Cas. Ins. Co. v. Stevens, 312 U.S. 568,

568 (1941). As a result, if a district court’s ruling

falls within Section 1447(d), it escapes appellate re-

view altogether. The constitutional validity of a ju-

risdictional statute could thus depend on the district

court—or even the particular district judge—before

whom a given case is adjudicated. Although such dis-

uniformity may be tolerable with respect to the ap-

plication of jurisdictional statutes to given facts, the

Third Circuit properly determined that Congress did

not intend a similar, and unpredictable, variation in

whether its own jurisdictional enactments are deemed

to be constitutional.°

2. The court of appeals’ determination that Con-

gress acted within its authority under Article III in

enacting the jurisdictional provisions of the 1988

Amendments is also correct and does not conflict with

any decision of this Court or of any other court of

appeals.*

The decision below is entirely consistent with this

Court’s decisions in Osborn v. Bank of the United

States, 22 U.S. (9 Wheat.) 738 (1824), and Ver-

linden B.V. v. Central Bank, 461 U.S. 480 (1983).

In Osborn, the Court held that under Article III

the federal courts “may receive * * * the power

of construing every * * * law” that “the Legis-

lature may constitutionally make,” and that Con-

gress may vest federal courts with jurisdiction over

any case in which “the title or right set up by the

party, may be defeated by one construction of the

constitution or law[s] of the United States, and sus-

tained by the opposite construction.” 22 U.S. (9

Wheat.) at 818, 822). In Verlinden, the Court ex-

plained that Osborn “reflects a broad conception of

‘arising undey’ jurisdiction, according to which Con-

gress may confer on the federal courts jurisdiction

® Indeed, such disuniformity would be particulrly unfortu-

nate with respect to the 1988 Price-Anderson Amendments,

since uniform adjudication of claims arising from a nuclear

accident was the primary basis for Congress’s creation of the

public liability action. See p. 17, infra.

7 The only other court that has passed on the constitutional-

ity of the 1988 Amendments employed essentially the same

reasoning as did the Third Circuit and held the Amendments

constitutional. See O’Conner v. Commonwealth Edison Co.,

770 F. Supp. 448 (C.D. Ill. 1991).

over any case or controversy that might call for the

application of federal law.” 461 U.S. at 492. See

also Textile Workers Union vy. Lincoln Mills, 353 U.S.

448, 471 (1957) (Frankfurter, J., dissenting); The

Mayor vy. Cooper, 73 U.S. (6 Wall.) 247, 251-252

(1867).

The court of appeals’ decision is faithful to this

Court’s pronouncements in Osborn and Verlinden.

Federal jurisdiction in this case is proper both be-

cause a public liability action is itself a federal cause

of action and because a public liability action neces-

sarily includes numerous federal ingredients.

As the court of appeals noted, “‘[i]n explicitly pro-

viding that the ‘substantive rules for decision’ in pub-

lic liability actions ‘shall be derived from’ the law of

the state in which the nuclear incident occurred, * * *

Congress expressed its intention that state law pro-

vides the content of and operates as federal law” in

a public liability action. Pet. App. A85. As with

numerous other federal causes of action that adopt

state law in whole or in part, “the power of Con-

gress to confer federal jurisdiction * * * and to give

content to the federal law by adopting states rules of

decision has never been questioned.” * Pet. App. A&86.

Moreover, unlike other statutes that provide that

state law is “‘to be the law of the United States,” see

43 U.S.C. 13833(a) (2), the 1988 Amendments pro-

vide that the substantive rules of decision are merely

to be “derived from the law of the State in which the

8 As the court of appeals noted, the same approach of adopt-

ing state rules of decision as federal law has been used, for

example, in the Federal Deposit Insurance Act, 12 U.S.C.

1819; the Bankruptcy Reform Act of 1978, 11 U.S.C. 101-

1330; 16 U.S.C. 457; the Outer Continental Shelf Lands Act,

43 U.S.C. 1831 et seq.; and.the Federal Tort Claims Act, 28

U.S.C. 1346(b). Pet. App. A84.

nuclear incident involved occurs,” 42 U.S.C. 2014 (hh)

(emphasis added), thus indicating that the federal

law governing public liability actions is distinct from

the state rules of decision from which such federal

law is “derived.”

Even if Congress had made state law directly ap-

plicable to public liability actions under the 1988

Amendments, such actions would still contain suffi-

cient federal ingredients to come within Article III

“arising under” jurisdiction. Regardless of the pre-

cise role, if any, of state law in defining the standard

of care in a public liability action, that standard must

in each case at least be measured against federal safe-

ty standards; in the area of nuclear power, “safety

regulation is the exclusive concern of the federal

law.” ® Silkwood v. Kerr-McGee Corp., 464 U.S. 238,

256 (1984); accord Pacific Gas & Electric Co. v.

State Energy Resources Conservation & Development

Comm'n, 461 U.S. 190, 208, 212-213 (1983). More-

over, public liability actions will involve numerous

other federal ingredients. Choice of law is deter-

mined by the 1988 Amendments, not state law.’® 42

U.S.C. 2014(hh). The limitations period and appro-

priate venue are governed by federal law. 42 U.S.C.

2210(n) (1) and (2). Federal law restricts the avail-

*See Pet. App. A91 (‘the duty the defendants owe the

plaintiffs in tort is dictated by federal law’), A93 (“state

remedies intact’ but federal government retains ‘exclusive

regulatory authority”) (emphasis omitted).

10 This factor could be important in a case like this, where

individual claims were brought in the courts of three States,

each of which may have different choice of law rules and may

thus end up applying different rules of decision.

ability of punitive damages, 42 U.S.C. 2210(s),”

limits certain defenses where there has been an extra-

ordinary nuclear occurrence, 42 U.S.C. 2210(n) (1),

establishes an upper limit of aggregate liability, 42

U.S.C. 2210(e), and provides for sharing of liability

in part through the industry-wide vating and finan-

cial support system, 42 U.S.C. 2210(b). The Act

governs who may ultimately be held liable in a pub-

lie liability action by channeling all liability to li-

censees. 42 U.S.C. 2014(t) and (w), 2210(a). Thus,

even if the cause of action were seen as arising un-

der state law, many of the incidents of that cause

of action will be determined by reference to these

federal ingredients.

Finally, as Judge Scirica noted in his concurring

opinion, the Act not only limits aggregate liability in

the event of a nuclear incident, but also provides a

detailed scheme for allocating funds in cases in which

that aggregate liability limit threatens to be reached.

That scheme provides for congressional, executive,

and judicial action to distribute the limited available

funds fairly among current claimants and among

those whose injuries may not become manifest until

a future date. See 42 U.S.C. 2210(e) (2), (i), and

(0). It cannot be known in advance of litigation

whether the aggregate liability limit will be reached

with respect to a particular nuclear incident. The

congressional plan to ensure fair allocation of avail-

able resources, and in particular the provisions re-

quiring a single district court to be available to allo-

cate funds fairly when the liability limits may be ex-

ceeded, 42 U.S.C. 2210(0), can only be accomplished

‘1 The question whether a given form of relief constitutes

“punitive damages” is itself a federal question. Molzof v.

United States, No. 90-838 (Jan. 14, 1992), slip op. 4.

if a federal forum is available for the adjudication

of all claims arising from a single incident.

As the House Committee on Energy and Com-

merce explained,

These measures stem from the desire of Congress

for equitable and uniform treatment of victims

of a nuclear accident and the need to coordinate

all phases of litigation that could result from a

large nuclear accident. Moreover, consolidation

of claims in a single court would be essential for

the orderly distribution of the limited funds

available and to assure reservation of sufficient

funds for victims whose injuries may not be-

come manifest until long after the accident.

H.R. Rep. No. 104, 100th Cong., 1st Sess. Pt. 1, at

18 (1987). Plaintiffs do not and cannot dispute that

Congress, acting pursuant to its Commerce Clause

and other powers, may legitimately pursue the goal

of closely regulating the liability that may arise from

a nuclear incident. Having pursued that goal by

enacting the Price-Anderson Act and the 1988

Amendments, Congress may under Article III en-

trust litigation relating to such incidents to the fed-

eral courts.

3. The court of appeals correctly rejected (Pet.

App. A96-A99) petitioners’ miscellaneous claims that

the 1988 Amendments unconstitutionally interfere

with state sovereignty and principles of federalism

by applying the newly enacted statute to cases pend-

ing at the time the Amendments were enacted.’ As

12 The district court in O’Conner v. Commonwealth Edison

Co., 770 F. Supp. at 456-457, the only other court to discuss

the constitutionality of applying the 1988 Amendments to

pending cases, reached the same conclusion as did the Third

Circuit here.

the court of appeals observed, petitioners’ “argu-

ments with respect to these issues were skeletal.”

Pet. App. A96. Congress is, of course, empowered to

specify that a statute shall apply to pending cases.

United States v. Sperry Corp., 493 U.S. 52 (1989).

Petitioners’ arguments rest upon the proposition that

Congress may not deprive state courts of jurisdiction

over actions once they have been filed in state court.

This Court has repeatedly rejected that proposition,

which, if applied consistently, would simply invali-

date all removal statutes. See Tennessee v. Davis,

100 U.S. 257, 267 (1880); Railway Co. v. Whitton’s

Administrator, 80 U.S. (13 Wall.) 270 (1872). Pe-

titioners offer no reason why those precedents should

be re-examined at this time.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.