# Opposition Brief — Gumby v. General Public Utilities Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 906

## Text

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
v.

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
EET ce a Oe CE OIE 1
re eiouiaieinanslicatousiatdsebesaaauebornae’ 1
sl aeacniuaoaesaipeniinanibaiaibains 2
a TOOT Rm 9
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

PF tk Fe S| | ee PEt wt deters 2
I ec oe he ee 5
CS ARSENE he DERE AR eON 3
a RE ENS on ce RL a, . 4,16
TE: eee ED, otk 3, 4, 16
ge eee en 2, 4,15
HN I IND acs cosveectaceicescesceccecsseovcescondectocs, 3, 4, 16
Re re IID .veies ecm co crermeccervectavacessce aces 3, 16
PK” a en 3
42 U.S.C. 2210(e) ...................... POR Ray a 3, 16

ae te PN CD aan css cicestnerscerenccniits 3, 16

Statutes—Continued : Page
ees ID aia cecieencnaiccinncecemcccunecrehentacoeanies 3, 16

ET CEE vcscevner testoecsiscedecenccrsermrenastee 15, 16

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

PB ER SM LE 2. | aaa aa Sane ee 2,4, 15
es SD arco can neck esses eacnevncroenetincecauns 4,16
en EID saccsascisctbescnescneeroccuirintandioapiansits 16

ee a ros cscs sects scneeirccmesininamanaees 14
I TI ooo <ccedins ccna tdlessuens nan cacdatbooakingeatanaaanaae 7
as MTD 5s daninchuccensicice <tecinadteaideunsacanneoee tld 6,9, 10,11
re MO sin cccanserecdecacasuewnteaaaanangnman ee)
I IE vosecaicsssevnscoisvncacsmncuocetuciiunadescnnoend 6, 9,10, 11, 12
a sai cs uses tvatioeaseaaiouaaanmnmeemmabeanennei 7
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)

2

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-

3

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

4

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-

5

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.

6

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-

7
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.

8

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.

9

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.

10

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

11

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).

12

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

13

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).

14

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.

15

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.

16

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.

17

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.

18

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.

KENNETH W. STARR
Solicitor General

STUART M. GERSON
Assistant Attorney General

WILLIAM KANTER
PETER R. MAIER
Attorneys

FEBRUARY 1992

YU. S. GOVERNMENT PRINTING OFFICE; 1992 312324 45306

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2921%3A4. Public record. Not legal advice.