Petition for Writ of Certiorari — John v. United States

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IN THE

Supreme Court of the liter States? * 20

OFFICE OF THE CLERK

ISMAEL JOHN, JACKSON ADING, JAMES GIDEON,

KUNEO JOSEPH, HARRY JACKSON, BOAZ DAVID,

SaM LEVAI, BALIKEN JACKSON, DAVID OBET,

KOSIMA JOHANNES, JINET LANGRUS, EBEL JOSEPH,

GEORGE YOSHITARO, ISAHO LUTHER, BIKENJI PAUL,

NEPTALI PETER, AND MOSES ABRAHAM,

FOR THEMSELVES AND FOR A CLASS CONSISTING OF

THE PEOPLE OF ENEWETAK,

Petitioners,

UNITED STATES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVOR PEVEC SETH P. WAXMAN

Bishop Street Tower PAUL R.Q. WOLFSON

700 Bishop Street Counsel of Record

Suite 2100 MICAH S. MYERS

Honolulu, HI 96813 WILMER CUTLER PICKERING

(808) 599-5655 HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000 —

CRAIG ESTES

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

QUESTIONS PRESENTED

Petitioners represent the people of Enewetak Atoll

in the Marshall Islands, a former trust territory of the

United States. The people of Enewetak were removed

from their homes and deprived of their property for

more than thirty years so that the United States could

conduct atomic-weapons testing there. Petitioners

pursued claims for just compensation in the federal

courts, but their cases were dismissed when the United

States and the Marshall Islands government entered

into an agreement that those claims should be resolved

by an alternate tribunal. That tribunal awarded peti-

tioners more than $385,000,000 in compensation, but

the United States has failed to pay more than a token

amount. Petitioners renewed their efforts to seek just

compensation from the United States in federal court,

but the Federal Circuit ruled that petitioners’ constitu-

tional takings claims were jurisdictionally barred by

the agreement between the U.S. and the Marshall Is-

lands, and that under the political question doctrine the

court could not examine the validity of what it referred

to as that agreement’s “settlement” and “espousal” of

those claims.

The questions presented are:

1. Whether Congress validly barred the courts of

the United States from exercising jurisdiction over pe-

titioners’ constitutional claims for just compensation.

2. Whether, under the political question doctrine,

the court of appeals could not even consider petitioners’

contention that the jurisdictional bar is not valid as a

“settlement” or “espousal” of petitioners’ claims.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

RELEVANT CONSTITUTIONAL PROVI-

SIONS, TREATIES, AND STATUTES

STATEMENT

A. The U.S. Government Removes The

People Of Enewetak From Their Prop-

. The People Of Enewetak Seek Just

Compensation In The Federal Courts ............... 5

. The People Of Enewetak Seek Just

Compensation In The Alternative Tri-

. The People Of Enewetak Return To

The Federal Courts To Seek Just

I. THIS COURT SHOULD GRANT REVIEW TO

MAKE CLEAR THAT CONGRESS MAY NOT

STRIP THE COURTS OF JURISDICTION OVER

CONSTITUTIONAL TAKINGS CLAIMS

A. The Right To Just Compensation May

Not Be Eliminated By Statute

TABLE OF CONTENTS—Continued

B. The Court Of Appeals Could, And

Should, Have Avoided The Constitu-

tional Question Here Through Statu-

tory Construction

Il. THE GOVERNMENT CANNOT AVOID JUDI-

CIAL CONSIDERATION OF PETITIONERS’

CONSTITUTIONAL CLAIMS BY INVOKING

THE POLITICAL QUESTION DOCTRINE OR

LABELS SUCH AS “SETTLEMENT” OR “ES-

A. The Jurisdictional Bar Cannot Be Up-

held As A Waiver Or Settlement Of

Petitioners’ Claims

. The Jurisdictional Bar Is Not Immune

From Judicial Review Under The Po-

litical Question Doctrine

CONCLUSION

APPENDIX A: Opinion of the United States

Court of Appeals for the Federal Circuit

(January 29, 2009)

APPENDIX B: Opinion and Order of the

United States Court of Federal Claims

APPENDIX C: Order of the United States

Court of Appeals for the Federal Circuit.

denying petition for rehearing (May 27,

TABLE OF CONTENTS—Continued

APPENDIX D: The Compact of Free Associa-

tion Act of 1985, Pub. L. No. 99-239, 99

Ss SE iti cieastcinpateniosoniiicesiinitastiniiaieatdians

APPENDIX E: Agreement Between the Gov-

ernment of the United States and the Gov-

ernment of the Marshall Islands for the

Implementation of Section 177 of the Com-

pact of Free Association. ...............:ceeccccseseeeseeees

APPENDIX F: The Trusteeship Agreement

for the Former Japanese Mandated Is-

lands, 61 Stat. 3301, T.I.A.S. No. 1665

APPENDIX G: Memorandum of Decision and

Order of the Marshall Islands Nuclear

Claims Tribunal (April 13, 2000), with

I ND sicisicccunntsecinccindnsisniatnsniinnmiocensiine

APPENDIX H: Payment order of the Mar-

shall Islands Nuclear Claims Tribunal

i. __. ERE Rrra era renee eae

APPENDIX I: Payment order of the Marshall

Islands Nuclear Claims Tribunal (February

i IEE Uihccrssesdeatacsciiscideniins tbacboiulahaanadadaiaiciaiiseabaipanininn

TABLE OF AUTHORITIES

CASES

Page(s)

Aguilar v. U.S. Immigration & Customs En

forcement Division, 510 F.3d 1 (1st Cir.

Se IS ETRE ST eC a 15

Antolok v. United States, 873 F.2d 369 (D.C.

LER ect Oa a a 20, 29

Arreola-Arreola v. Ashcroft, 383 F.3d 956 (9th

EEE EE AN Oe a 15

Asociacion de Reclamantes v. United Mexican

States, 735 F.2d 1517 (D.C. Cir. 1984) .................00- 24

Atamirzayeva v. United States, 524 F.3d 1320

SI I i scccpudinnineisnnnemeniios 17

Baker v. Carr, 369 U.S. 186 (1962)............cccccscscscscees 27, 28

Baltimore & Ohio Railroad Co. v. United

States, 298 U.S. 349 (1986) ..........ccccscscccssccees 10, 13, 15

Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987) ....14, 15

Battaglia v. General Motors Corp., 169 F.2d

Sa os sdieusdnmasitisenslesoeniion 15

Boumediene v. Bush, 128 S. Ct. 2229 (2008).................. 27

Califano v. Yamasaki, 442 U.S. 682 (1979) ...............00 18

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

a taledadlias 21

City of Rohnert Park v. Harris, 601 F.2d 1040

I eeuainaeatannanniies 23

City of Tacoma v. Taxpayers of Tacoma,

Se Fs Se FOIE ctnesnesecniesseucentienssonen ssldlecenesiadieoaieibae 23

Vil

TABLE OF AUTHORITIES—Continued

Page(s)

Dames & Moore v. Regan, 453 U.S. 654

anal 24, 27, 28

First English Evangelical Lutheran Church v.

Los Angeles County, 482 U.S. 304 (1987) ......... 13, 14

Graham & Foster v. Goodcell, 282 U.S. 409

SETI sccssncdecahieuencinsiekcestoreecianeaiaaidemeshceaipaaieaieetaitlaiaainainheleaats 14

INS v. Chadha, 462 U.S. 919 (1988)............... eae 22, 27

INS v. St. Cyr, 583 U.S. 289 (2001) ....cccccccccssscccsssccccseesees 18

Jacobs v. United States, 290 U.S. 13 (1983)............. 13, 16

Japan Whaling Ass’n v. American Cetacean

OCS, GTS Us Te. TRE CGI cncscnscvcccsncocesesnccccvscevsscsees 29

Johnson v. Rolison, 415 U.S. 361 (1974).................. 14,18

Juda v. United States, 6 Cl. Ct. 441 (1984)......... anaaiaaee 17

Local No. 98, International Ass’n of Firefight-

ers v. City of Cleveland, 478 U.S. 501 (1986).......... 23

Martin v. Wilks, 490 U.S. 755 (1989) ........2..2....2..22.c00ee0-- 22

Medellin v. Texas, 128 S. Ct. 1346 (2008)..................-.2+. 26

Monongahela Navigation Co. v. United States,

ey Ce IIE sitcnicccactsctepideieipnsnianapeabacininnanan 10, 11, 16

New York State Conference of Blue Cross &

Blue Shield Plans v. Travelers Insurance

i, BE erie te CI drcicestenntinsccsncsnnnctscncetentcincictions 19

Nitol v. United States, 7 Cl. Ct. 405 (1985).................... 17

People of Enewetak v. United States, 864 F.2d

BO API iacincesscnsscsseiensuhaisacincnsibaienaissetieadattaniaianinantiagss 5, 7, 20

Vill

TABLE OF AUTHORITIES—Continued

Page(s)

People of Saipan v. Department of Interior,

356 F’. Supp. 645 (D. Haw. 1973)................ | 25

Peter v. United States, 13 Cl. Ct. 691 (1987)...

Peter v. United States, 6 Cl. Ct. 768 (1984)......0.0...000000.... 5

Preseault v. ICC, 494 U.S. 1 (1990)... _ 18

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974) ........... aaa lace ache cemeniie 18, 20

Reid v. Covert, 354 U.S. 1 (1957) .............00................27, 29

Russian Volunteer Fleet v. United States,

gtk = 5): } Sen ciaiadaiaaiediaeiebitananedeaies 28

Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)........... 29

Seaboard Air Line Railway Co. v. United

States, 261 U.S. 299 (1923) .......cccccccccccccccccscccceee ae

St. Joseph Stock Yards Co. vy. United States,

Se a aetts UE IT iistrccsetapinsaninadasddetesenencenadunssnniitcnetiesin 16

Taylor v. Sturgell, 128 S. Ct. 2161 (2008).....................4 23

Town of Newton v. Rumery, 480 U.S. 386

fat NSE ee ae One ea een ee 22

United States v. Clarke, 445 U.S. 253 (1980)................. 13

United States v. Pink, 315 U.S. 208 (1942)....000000.... 10, 26

United States v. Williams, 128 S. Ct. 1830

a elealainl 19

Webster v. Doe, 486 U.S. 592 (1988) .....................--00+. a

Weinberger v. Salfi, 422 U.S. 749 (1975) 20.2.0... -eeeeeeee 18

TABLE OF AUTHORITIES—Continued

Page(s)

World Communications Corp. v. Micronesian

Telecommunications Corp., 456 F. Supp.

DES COD, BRR Ba tt etttteststeccsceneconsccesecccccececcee 25

Youngstown Sheet & Tube Co. v. Sawyer,

ED UE. BF Ce ee eiettttaensasteccscecccccecccecceees 28

CONSTITUTIONAL AND STATUTORY PROVISIONS

U2, Coc, SN a ca rceetcccecocecccccccees 1,138

28 U.S.C.

48 U.S.C. 9 AGRE cccccnnseneattettnncedcenscccccscce atanbanes 24

The Compact of Free Association Act of 1985,

Pub. L. No. 99-239, 99 Stat. 1770 (1986)......... passim

INTERNATIONAL AGREEMENTS

The Trusteeship Agreement for the Former

Japanese Mandated Islands, 61 Stat. 3301,

TD LaPAcide BOG, TEE mI aetailienstbenscocedeocesecesescc00e passim

The Agreement Between the Government of

the United States and the Government of

the Marshall Islands for the Implementa-

tion of Section 177 of the Compact of Free

ASBOCHIEION, ccsceccccncsentatnteeetineteercereseerse0ee 6, 8,19

OTHER AUTHORITIES

Henkin, Louis, Foreign Affairs and the Consti-

Destine Che el, Ti iictttiticsnccecencecececcseccecesccese 25

OPINIONS BELOW

The opinion of the United States Court of Federal

Claims (App. 11a) is reported at 77 Fed. Cl. 788. The

opinion of the United States Court of Appeals for the

Federal Circuit (App. 1a) is reported at 554 F.3d 996.

JURISDICTION

The judgment of the court of appeals was entered

on January 29, 2009. A timely petition for rehearing

was denied on May 27, 2009. On July 28, 2009, the Chief

Justice extended the time for filing a petition for a writ

of certiorari to September 24, 2009, and on September

14, 2009, the Chief Justice further extended the time

for filing to October 23, 2009. This Court has jurisdic-

tion under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS,

TREATIES, AND STATUTES

1. The Fifth Amendment to the United States

Yonstitution provides in relevant part: “...nor shall pri-

vate property be taken for public use, without just

compensation.”

2. The following are set forth in the appendix:

a. The Compact of Free Association Act of

1985, Pub. L. No. 99-239, 99 Stat. 1770 (1986) (App.

117a);

b. The Agreement Between the Government

of the United States and the Government of the Mar-

shall Islands for the Implementation of Section 177 of

the Compact of Free Association (App. 261a); and

c. The Trusteeship Agreement for the For-

mer Japanese Mandated Islands, 61 Stat. 3301, T.I.A.S.

No. 1665 (1947) (App. 281a).

STATEMENT

This case presents an issue essential to the security

of all property owners: whether the government may

evade the constitutional guarantee of just compensa-

tion for the taking of private property by stripping the

courts of jurisdiction over any claim that it has not pro-

vided just compensation for the taking. In the decision

below, the Federal Circuit ruled that it had been de-

prived of statutory jurisdiction to entertain petitioners’

constitutional claims for just compensation, notwith-

standing this Court’s decisions stressing that the con-

stitutional requirement of just compensation for a tak-

ing is self-executing and that it is for the judiciary to

decide whether compensation for a taking is constitu-

tionally adequate. The Federal Circuit further sug-

gested that petitioners’ constitutional claims were

barred by a “settlement” and refused to examine the

validity of that settlement under the “political ques-

tion” doctrine, even though petitioners themselves

never entered into any such settlement and the only

agreement to dismiss petitioners’ claims was between

the United States government and one of its own terri-

tories. Without this Court’s review, the government

will have effectively insulated itself from the funda-

mental constitutional requirement that it pay just com-

pensation for the taking of property.

A. The U.S. Government Removes The People

Of Enewetak From Their Property

Petitioners are inhabitants of Enewetak Atoll, one

of several atolls and islands making up the Marshall Is-

lands, located in the central Pacific Ocean. Enewetak

Atoll includes 40 islands and encloses a lagoon of

roughly 388 square miles. C.A. App. 79, 86 (4417, 39).

The Marshall Islands were occupied by the United

States during World War II. Together with the rest of

Micronesia, in 1947 the Marshall Islands were brought

into the United Nations trusteeship system with the

United States as administering authority. The Trus-

teeship Agreement gave the United States “full powers

of administration, legislation, and jurisdiction” over the

Trust Territory. App. 282a-288a (Art. 3). It also rec-

ognized, in Article 6, that the United States bore fidu-

ciary obligations to the people of the Trust Territory to

“protect the inhabitants against the loss of their land

and resources” and to safeguard their “rights and fun-

damental freedoms.” App. 284a. The Trusteeship

Agreement further recognized the Marshallese as U.S.

nationals, providing that the United States “shall afford

diplomatic and consular protection to inhabitants of the

trust territory when outside the territorial limits of the

trust territory or of the territory of the administering

authority.” App. 287a (Art. 11).

Shortly thereafter, the United States government

identified the Marshall Islands as sites for atomic

weapons testing. In December 1947, the government

removed all of the people of Enewetak from their

homes and transferred them to Ujelang Atoll, the most

isolated of the inhabited atolls in the Marshall Islands.

Despite government assurances that their forced re-

moval would be temporary, the people of Enewetak

spent the next 33 years on Ujelang. During that time,

' The government also removed the inhabitants of the Bikini

Atoll to another island so that it could conduct atomic weapons

tests on Bikini. The residents of Bikini have brought a case similar

to this one, and in the same opinion that disposed of the Enewetak

case, the Federal Circuit disposed of the Bikini case. The Bikini

plaintiffs have filed a separate petition for certiorari.

their only contact with the rest of the world was

through infrequent visits from supply ships, and they

suffered (in the words of the Interior Department)

“grave privations, including periods of near starvation.”

C.A. App. 95-98 (§ 163-75); see also App. 329a (decision

of Nuclear Claims Tribunal) (noting that petitioners

had undergone “famine and hunger, near starvation

and death from illness, food shortage and the limita-

tions of the environment on Ujelang (fishing/collecting),

the polio epidemic, the measles epidemic, [and] the rat

infestation”).

Between April 1948 and August 1958, Enewetak

was the site of 48 atomic and hydrogen bomb tests,

which devastated the islands and lagoon, left massive

amounts of radioactive material on them, and contami-

nated much of the Atoll. During the 1960s and 1970s,

Enewetak was also used for missile testing, which scat-

tered toxic beryllium over one of the Atoll’s principal

islands. C.A. App. 98-100 (¢ 76-82).

In 1972, the United States announced that it would

return Enewetak Atoll to its people. In October 1973,

the Atomic Energy Commission published a radiation

survey and proposed a nuclear cleanup operation for

the Atoll. From 1972 to 1977, various federal agencies

engaged in studies and planning for radiological cleanup

and rehabilitation programs. From May 1977 to April

1980, the government attempted to remediate

Enewetak Atoll. C.A. App. 102-103 (¢%89-91). In Oc-

tober 1980, the people of Enewetak were finally per-

mitted to return. C.A. App. 103 (491). Much of the

Atoll, however, remains uninhabitable, and some of it

was completely vaporized by the weapons testing. See

App. 290a.

B. The People Of Enewetak Seek Just Compen-

sation In The Federal Courts

In September 1982, the people of Enewetak

brought an action in the Claims Court seeking compen-

sation for the taking of the Atoll and stating claims for

the breach of an implied-in-fact contract. The Claims

Court dismissed the takings claim as time-barred,’ but

declined to dismiss one of the contract claims. See Pe-

ter v. United States, 6 Cl. Ct. 768 (1984).

While that suit was pending, the United States and

the government of the Marshall Islands—over which

the United States at that time retained control as trust

administrator—negotiated a Compact of Free Associa-

tion (“Compact”). The Compact recognized the Repub-

lic of the Marshall Islands (RMI) as self-governing in

some respects, but retained for the United States “full

authority and responsibility for security and defense

matters in or relating to the Marshall Islands.” App.

222a-223a (§ 311(a)). Congress approved the Compact

in a joint resolution (the “Compact Act”) in December

1985, the President signed the Compact Act in January

1986, and the Compact took effect on October 21, 1986.

See Pub. L. No. 99-239, 99 Stat. 1770 (1986); C.A. App.

86 (438); App. 117a-260a.

In Section 177(a) of the Compact, the United States

“accept{ed] the responsibility for compensation owing

to citizens of the Marshali Islands ... for loss or damage

? The people of Enewetak appealed the Claims Court’s con-

clusion that this claim was untimely. Separate Brief of Appellants,

People of Enewetak v. United States, No. 88-1208 (Fed. Cir. Apr.

15, 1988). The Federal Circuit affirmed the Claims Court on other

grounds, and did not address the question of timeliness. People of

Enewetak v. United States, 864 F 2d 134, 136 n.4 (Fed. Cir. 1988).

to property and person ... resulting from the nuclear

testing program.” 99 Stat. 1812, App. 204a. Section

177(b) provided for the United States and the Marshall

Islands government to enter into a separate agreement

(the “Section 177 Agreement”) for several purposes,

including the “just and adequate settlement” of all

“claims which have arisen in regard to the Marshall Is-

lands and its citizens and which have not as yet been

compensated or which in the future may arise.” I/d.

The “Section 177 Agreement” between the United

States and the Marshall Islands government termi-

nated all jurisdiction in United States courts over the

Marshall Islanders’ claims based on nuclear testing and

channeled all such claims to an alternative tribunal, the

Nuclear Claims Tribunal (NCT). The NCT was em-

powered to “render final determination upon all claims

... which are based on, arise out of, or are in any way

related to the Nuclear Testing Program,” including

claims for injury, death, and damage to property. App.

271a (Art. IV, § 1(a)). The Section 177 Agreement des-

ignated $45.75 million for “whole or partial payment” of

NCT awards. App. 267a (Art. II, § 6(c)).

Article X of the Section 177 Agreement, titled “Es-

pousal,” provided 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 Testing Program ... includ-

ing any of those claims which may be pending or which

may be filed in any court or other judicial or adminis-

trative forum, including the courts of the Marshall Is-

lands and the courts of the United States and its politi-

cal subdivisions.” App. 276a-277a. Article XII, titled

“United States Courts,” provides that “{a]ll claims de-

scribed 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.” App. 278a. Section 103(g)(1) of the

Compact Act contains similar provisions, see 99 Stat.

1782, App. 144a (“any such claims shall be terminated

and barred except insofar as provided for in the Section

177 Agreement”), and Congress expressly “ratified and

approved” the Section 177 Agreement in Section

103(g)(2) of the Compact Act, 99 Stat. 1782, App. 144a.’

In light of the Compact, the Compact Act, and the

Section 177 Agreement, the Claims Court determined

that Congress had withdrawn its jurisdiction over the

Enewetak people’s claims, but left open the possibility

that they could return to court to challenge the ade-

quacy of the compensation received through the NCT

process. Peter v. United States, 13 Cl. Ct. 691, 692

(1987). The Federal Circuit affirmed the dismissal of

the Enewetak claims solely on the ground that the Sec-

tion 177 Agreement withdrew all federal court jurisdic-

tion over those claims and channeled them into the al-

ternative tribunal. People of Enewetak v. United

States, 864 F.2d 134, 136 (Fed. Cir. 1988). The Federal

Circuit concluded that “appellants’ attack on the ‘ade-

quacy’ of the alternative procedure provided by Con-

gress for compensation of their claims was premature”

and that it was “unpersuaded that judicial intervention

is appropriate at this time on the mere speculation that

the alternative remedy may prove to be inadequate.”

Id. (emphases added).

> Section 175 of the Compact also states that the Section 177

Agreement “shall have the force of law.” 99 Stat. 1812, App. 203a.

C. The People Of Enewetak Seek Just Compen-

sation In The Alternative Tribunal

In 1990, the people of Enewetak filed a claim in the

NCT, as provided for by the Section 177 Agreement.

C.A. App. 111 (4122). Over ten years later, the NCT

issued a final decision awarding $385,894,500, of which

$244 million was for the past and future loss of

Enewetak Atoll, $107.81 million was for restoration

costs for a radiological cleanup of the Atoll, and

$34,084,500 was for hardships suffered as a result of the

forced relocation to Ujelang. C.A. App. 113-118 (44128-

146). The award included an offset for prior compensa-

tion paid by the United States. C.A. App. 116 (4141).

In 2002 and 2003, the NCT paid the people of

Enewetak a total of $1,647,483. That amount repre-

sents less than 1% of their actual award. The NCT has

not made a payment since February 2003, and has ex-

hausted the $45.75 million earmarked in the Section 177

Agreement. C.A. App. 119 (44148-151). In January

2003, former Attorney General Richard Thornburgh

prepared a report on the NCT in which he concluded

that “the $150 million trust fund initially established in

1986 is manifestly inadequate to fairly compensate the

inhabitants of the Marshall Islands.” C.A. App. 120

(44 152-154).

Article 1X of the Section 177 Agreement provides

that the Marshall Islands government may petition

Congress for additional funds for the NCT based on

changed circumstances. App. 276a. The Marshall Is-

lands government presented a “changed circum-

stances” petition to Congress in September 2000, seek-

ing additional funds principally based on new radiation

standards adopted by the United States that lowered

the recommended level of exposure. C.A. App. 120-124

(47155-164). In January 2005, the State Department

recommended rejection of the petition. Congress has

taken no action to date. C.A. App. 125 (44 166-168).

D. The People Of Enewetak Return To The Fed-

eral Courts To Seek Just Compensation

In light of Congress’s manifest failure to provide

the residents of Enewetak with just compensation for

their property, petitioners filed suit in the Court of

Federal Claims in 2006. Two counts of the complaint

seek to revive the original claims for the taking of

Enewetak and for breach of implied contract that were

brought in 1982 but were dismissed on the assumption

(which proved illusory) that Congress had created an

adequate alternate tribunal. Two other counts seek

just compensation for the taking of those original tak-

ing and contract claims, based on the fact that Congress

diverted those claims into the NCT process but then

failed to provide adequate funding for the NCT award.‘

The Court of Federal Claims dismissed all of the counts

on various grounds. App. 77a-96a.

The Federal Circuit affirmed the dismissal The

panel concluded that Congress had deprived it of juris

diction to entertain the Enewetak people’s claims, in-

cluding their takings claims, despite Congress’s mani-

fest failure to provide more than token funding for

those claims. The court also held that the Section 177

* A fifth count, based on the taking of Enewetak, similarly al

leges that the NCT process into which the underlying claims were

diverted failed to provide constitutionally adequate compensation,

and a sixth seeks damages for breach of fiduciary duties created by

an implied-in-fact contract for just compensation established in the

Compact Act and its related agreements.

Agreement constituted an unreviewable “settlement”

of petitioners’ claims related to nuclear testing in the

Marshall Islands, even though petitioners were not

party to any such settlement. App. 7a, 9a.

In concluding that it lacked statutory jurisdiction

to hear petitioners’ claims, the court found controlling

and unambiguous language in the Section 177 Agree

ment directing that “[n]jo court of the United States

shall have jurisdiction to entertain such claims” (relat-

ing to the atomic testing programs). App. 6a-8a. Even

though this Court has stressed that the constitutional

guarantee of just compensation is self-executing and

that Congress may not set arbitrarily low ceilings on

the amount of compensation due for such takings, see

Baltimore & Ohio R.R. Co. v. United States, 298 U.S.

349, 368 (1936); Monongahela Nav. Co. v. United

States, 148 U.S. 312, 327 (1898), the Federal Circuit still

found that its jurisdiction over petitioners’ takings

claims had been withdrawn, and it declined to construe

the Section 177 Agreement in a manner that would

have avoided the constitutional question raised by such

aruling. App. 8a.

The Federal Circuit also noted that “this case in-

volves a settlement negotiated between the United

States and the Government of the Marshall Islands.”

App. 9a. Although petitioners are not parties to any

settlement of their claims against the United States,

the court stated that “(t]he power to conduct foreign

relations includes ... the authority to enter into an in-

ternational claims settlement on behalf of nationals.”

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

The court also referred to the “settlement” of petition-

ers’ claims as an “espousal” of those claims (between

the U.S. and Marshall Islands governments) and ruled

that “the validity of that espousal ... raises a political

question beyond the power of this or any court to con-

sider.” /d. (again citing Pink). The court reached that

conclusion even though, when the Marshall Islands

government entered into the Section 177 Agreement

with the United States, it was not a foreign sovereign

but remained under the control of the United States.

Finally, the court remarked that, although “its sense of

justice, of course, makes it difficult to turn away from a

case of constitutional dimension,” nonetheless “this

court cannot act without jurisdiction,” and “this court

cannot hear, let alone, remedy a wrong that is not

within its power to adjudicate.” I/d.

REASONS FOR GRANTING THE PETITION

More than 100 years ago, this Court remarked that

“in any society the fullness and sufficiency of the secu-

rities which surround the individual in the use and en-

joyment of his property constitute one of the most cer-

tain tests of the character and value of the govern-

ment.” Monongahela Nav. Co. v. United States, 148

U.S. 312, 324 (1893). This case demonstrates the endur-

ing wisdom of that observation. Petitioners, deprived

completely of the use and enjoyment of their ancestral

lands for more than 30 years, have sought only the just

compensation for that taking to which the Fifth

Amendment entitles them. The government has re-

sponded by providing only token payment for petition

ers’ property— less than one percent of its true value—

and has precluded petitioners from seeking any judicial

remedy for the remainder.

The Federal Circuit’s decision—that Congress may

bar the courts from entertaining constitutional claims

for just compensation—cannot be correct. At a mini-

mum, that decision raises grave constitutional ques-

tions fundamental to the protection of property rights,

which could and should have been avoided through

statutory construction. The Federal Circuit’s decision

is all the more important because that court has exclu-

sive jurisdiction over appeals from decisions of the

Court of Federal Claims, see 28 U.S.C. § 1295(a)(3),

which in turn has exclusive jurisdiction under the

Tucker Act over virtually all claims that the United

States has taken property without just compensation,

see id. § 1491(a)(1). Absent review by this Court, the

Federal Circuit’s conclusion that Congress can by stat-

ute bar judicial consideration of a constitutional just

compensation claim will effectively be the last word.

The court of appeals’ decision is no less problematic

because it concluded that the jurisdictional bar was

based on a “settlement” or “espousal,” the validity of

which it declined to examine as a “political question.”

That reasoning itself raises serious constitutional con

cerns and warrants this Court’s review. Petitioners

never signed any settlement with the United States;

the only relevant agreement was one between the

United States government and an entity then under its

control, the Marshall Islands government. To rule, as

the Federal Circuit did, that the validity of this sup-

posed “espousal” is nonjusticiable is to hold, in effect,

that the United States government may insulate itself

from constitutional claims by negotiating with its own

dependency. This Court’s review is warranted to make

clear that the Fifth Amendment’s command of just

compensation may not be evaded in this manner.

I THis COURT SHOULD GRANT REVIEW TO MAKE CLEAR

THAT CONGRESS MAY Nor STRIP THE Courts OF Ju-

RISDICTION OVER CONSTITUTIONAL TAKINGS CLAIMS

A. The Right To Just Compensation May Not Be

Eliminated By Statute

The Constitution requires the United States to pay

just compensation whenever it takes private property

for public use. U.S. Const. amend. V (*...nor shall pri-

vate property be taken for public use, without just

compensation”). This Court has never suggested that

the government may avoid that constitutional com-

mand by refusing to pay the full amount of just com-

pensation due and barring the courts from enforcing its

obligation to do so. To the contrary, this Court has

made clear that “(t]he just compensation clause may

not be evaded or impaired by any form of legislation.”

Baltimore & Ohio R.R Co. v. United States, 298 U.S.

349, 368 (1936) (emphasis added).

This Court has repeatedly stressed that the mght

to just compensation arises from the Constitution itself.

That mght requires no additional statutory enactment

and admits no possibility of statutory nullification.

“Just compensation is provided for by the Constitution

and the nght to it cannot be taken away by statute.”

Seaboard Air Line Ry. Co. v. United States, 261 U.S.

299, 304 (1923). It is not even necessary for the gov-

ernment to waive sovereign immunity for the courts to

entertain just compensation claims, for it has long been

recognized that the constitutional requirement of just

compensation is “self-executing.” See First English

Evangelical Lutheran Church v. Los Angeles County,

482 U.S. 304, 315 (1987); United States v. Clarke, 445

U.S. 253, 257 (1980); see also Jacobs v. United States,

290 U.S. 13, 16 (1933) (“Statutory recognition was not

necessary. A promise to pay was not necessary. Such a

promise was implied because of the duty to pay im-

posed by the Amendment.”). “{I}t is the Constitution

that dictates the remedy for interference with property

rights amounting to a taking.” First English, 482 U.S.

at 315 n.9.

Just as Congress may not eliminate the protections

of the Just Compensation Clause directly, it may not do

so indirectly by jurisdiction-stripping. The government

may not cloak itself with immunity for its unconstitu-

tional actions by barring judicial review of that conduct.

This Court has frequently recognized this principle

when it has cautioned against any reading of a statute

that would deprive the courts of authority over consti-

tutional claims. See, e.g., Webster v. Doe, 486 U.S. 592,

603 (1988); Johnson v. Robison, 415 U.S. 361, 373-374

(1974); see also Graham & Foster v. Goodcell, 282 U.S.

409, 431 (1931) (stressing that, if “Congress did not

have the authority” to reach a particular substantive

result, “it could not be concluded that the Congress

could accomplish the same result by denying to the

taxpayers all remedy”).

Other courts of appeals have recognized that the

government may not insulate its unconstitutional con

duct through jurisdictional bars. “In considering the

constitutional issue, it is important to recall that, in the

entire history of the United States, the Supreme Court

has never once held that Congress may foreclose all ju

dicial review of the constitutionality of a congressional

enactment.” Bartlett v. Bowen, 816 F.2d 695, 104 (D.C.

Cir. 1987). Thus, when presented with that very ques

tion, the D.C. Circuit had “little doubt that such a limi-

tation on the jurisdiction of both state and federal

courts to review the constitutionality of federal legisla

tion ... would be [an] unconstitutional infringement of

due process.” Jd. at 703 (internal quotation marks omit-

ted; alterations in original).

Similarly, the First Circuit has observed that,

while Congress has “the power to regulate the jurisdic-

tion of the lower federal courts ... and the Supreme

Court has not found constitutional difficulties in con-

gressional abrogation of certain remedies as long as

others are left intact .... Congress probably cannot nul-

lify rights guaranteed in the Constitution by prohibit-

ing all remedies for the violation of those rights.” Aguzi-

lar v. Immigration & Customs Enforcement Div., 510

F.3d 1, 17-18 (1st Cir. 2007) (emphasis added). And the

Second Circuit has stressed that “the exercise of Con-

gress of its control over jurisdiction is subject to com

pliance with at least the requirements of the Fifth

Amendment. That is to say, while Congress has the

undoubted power to give, withhold, and restrict the ju-

risdiction of courts other than the Supreme Court, it

must not so exercise that power as to deprive any per

son of life, liberty or property without due process of

law or to take private property without just compensa-

tion.” Battaglia v. General Motors Corp., 169 F.2d 254,

257 (2d Cir. 1948); see also Arreola-Arreola v. Ashcroft,

383 F.3d 956, 963 (9th Cir. 2004), overruled on other

grounds by Morales-Izquierdo v. Gonzales, 486 F.3d

484, 497 (9th Cir. 2007) (en banc).

This Court has also long made clear that, “when [a

property owner] appropriately invokes the just com-

pensation clause, he is entitled to a judicial determina-

tion of the amount.” Baltimore & Ohto R.R. Co., 298

U.S. at 368 (emphasis added). Although Congress may

require claimants to pursue their claims for just com

pensation in the first instance before an alternate tri

bunal, property owners have the right, under the Con-

stitution, to seek a judicial remedy should the compen

sation awarded by that tribunal be inadequate. Thus,

this Court has long insisted that Congress may not fix

the amount that a property owner will receive in com-

pensation and has reserved that determination for the

courts. “The constitution has declared that just com-

pensation shall be paid, and the ascertainment of that is

a judicial inquiry.” Monongahela Nav. Co., 148 U.S. at

327; see also St. Joseph Stock Yards Co. v. United

States, 298 U.S. 38, 51-52 (1936).

Under these settled principles, the federal courts

were obligated to take jurisdiction over petitioners’

claims. The United States government took petition-

ers’ property, and they were entitled to just compensa

tion for it. Although Congress formally acknowledged

the responsibility of the United States to compensate

petitioners for the taking of their property, see pp. 5-6,

supra, and although Congress set up an alternate tri-

bunal in which petitioners might present their claims

for compensation, the government has refused to make

any provision for payment of that tribunal’s award be-

yond a token amount. The government’s refusal to pay

compensation to petitioners, combined with its decision

to bar the courts of the United States to petitioners,

surely constitutes a violation of the Fifth Amendment

no less than the government’s refusal to pay interest on

a compensation award, see Jacobs, 290 U.S. at 17, or its

refusal to pay for one of the sticks in the bundle of

rights that it has taken, see Monongahela Nav. Co., 148

U.S. at 328-329 (right to collect tolls).’

> The government argued in the Federal Circuit that peti

tioners could not invoke the Just Compensation Clause because

this case supposedly involves foreign-owned property located out

side the United States. Gov’t C.A. Br. 51-58. The court of appeals

B. The Court Of Appeals Could, And Should,

Have Avoided The Constitutional Question

Here Through Statutory Construction

The court of appeals’ decision that Congress per-

missibly closed the courts to petitioners’ constitutional

takings claims is all the more unfortunate because the

Federal Circuit could easily have avoided such a ruling.

did not address that contention, which is clearly wrong. First,

several petitioners have U.S. citizenship. Second, the people of

Enewetak were U.S. nationals when they were removed from

their property in 1947, when they first presented their federal

claims for the taking of their property, and when the Section 177

Agreement terminated their takings claims pending in the U.S.

courts in 1986. Enewetak was under US. jurisdiction at all of

those times. At a minimum, therefore, petitioners have a substan-

tial connection to the United States that allows them to invoke the

Just Compensation Clause—as the Claims Court previously held.

See Juda v. United States, 6 CL Ct. 441, 458 (1984); see also Nitol

v. United States, 7 Cl. Ct. 405, 415 (1985) (citing Juda and noting

that “[i}t was there concluded that the just compensation clause of

the Fifth Amendment would extend to include a taking that re

sulted from the United States nuclear testing program in the Mar

shall Islands.”), cf. Atamirzayeva v. United States, 524 F.3d 1320,

1328-1329 (Fed. Cir. 2008) (“In Juda and Nitol, the court found

that the plaintiffs were covered by the just compensation clause ...

based on the ‘unique relationship’ between the United States and

the Trust Territory Government and the relationship between the

United States and the plaintiffs.”). Third, at the very outset of the

trusteeship period, the United States acknowledged its obligation

to extend constitutional rights. See Memorandum for the Presi

dent, David E.. Lilienthal (Nov. 25, 1947), C_A. App. 143-144 (“To

insure that the United States meets fully its international obliga-

tions under the Charter of the United Nations and in connection

with the Trusteeship Agreement ... special provisions will be made

for local inhabitants as follows: 1. They will be accorded all rights

which are the normal constitutional rights of citizens under the

Constitution, but will be dealt with as wards of the United States

for whom this country has special responsibilities.”).

This Court has repeatedly made clear that interpreta-

tions that call into question the constitutionality of an

Act of Congress are to be avoided if at all possible. “[I]}f

a construction of the statute is fairly possible by which

[a serious doubt of constitutionality] may be avoided, a

court should adopt that construction.” Califano v. Ya-

masaki, 442 U.S. 682, 693 (1979).

That principle of avoiding constitutional questions

has particular force when the jurisdiction of the federal

courts is at stake. See INS v. St. Cyr, 583 U.S. 289, 299-

300 (2001). Even when interpreting statutes with

seemingly sweeping limitations on jurisdiction, this

Court has adopted interpretations preserving jurisdic-

tion over constitutional questions. See Weinberger v.

Salfi, 422 U.S. 479, 762 (1975); Johnson v. Robison, 415

U.S. at 366-367. And specifically in the context of the

Just Compensation Clause, the Court has stressed that

congressional enactiuents should not be interpreted as

barring a claimant’s judicial remedy whenever a read-

ing preserving that remedy is possible. See Preseault

v. ICC, 494 U.S. 1, 11-17 (1990); Regional Rail Reor-

ganization Act Cases, 419 U.S. 102, 133-136 (1974).

Had the court of appeals heeded these principles, it

readily could have avoided a reading of the Section 177

Agreement that precludes jurisdiction over petitioners’

claims. Although the court of appeals dismissed con-

cerns about constitutional avoidance by insisting that

“Itjhe language of the Section 177 Agreement presents

no ambiguities whatsoever” (App. 8a), in fact, the statu-

tory language at issue here is no more clear-cut than

language that has elsewhere been found not to deprive

federal courts of jurisdiction over constitutional claims.

Article XII of the Section 177 Agreement provides that

“{ajll claims described in Articles X and XI of this

Agreement shall be terminated,” and that “(n]Jo court of

the United States shall have jurisdiction to entertain

any such claims{.}” App. 278a (emphasis added). Arti-

cle X, in turn, refers to all claims “which are based

upon, arise out of, or are in any way related to the Nu-

clear Testing Program.” App. 276a.

Several of petitioners’ claims, however, do not

“arise out of,” and are not “based on” or “related to,”

the Nuclear Testing Program itself.° Rather, they

arise from the government’s failure to provide ade-

quate funding to pay the NCT’s award to petitioners—

an award made after petitioners in good faith invoked

the alternate remedy provided by Congress, presented

their case to that tribunal, and received a decision that

they were entitled to compensation for the decades-

long loss of their property. Petitioners’ claims based on

the nuclear testing program were presented to and de-

cided by the NCT, which determined that those were

valid, compensable claims. What petitioners seek now

in Counts III, IV, and V of their complaint is not com-

pensation for the government’s taking of their land

during the nuclear testing program, but compensation

for the government’s taking of their claims, decades

after the nuclear testing program ended, when the gov-

ernment closed the federal courts to those claims and

refused to pay the NCT’s award.

® “Related to” is broad terminology, but it is not unlimited.

See N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travel-

ers Ins. Co., 514 U.S. 645, 655 (1995). That is especially true

where, as here, it is used in conjunction with two other, narrower

terms (“based on” and “arising out of”) and thus presumably was

intended to share their characteristics. See, e.g., United States v.

Williams, 128 S. Ct. 1830, 1839-1840 (2008).

This case thus resembles the Regional Rail Reor-

ganization Cases, where the Court considered whether

two sets of provisions in the Regional Rail Reorganiza-

tion Act (“Rail Act”) took the property of certain rail-

roads’ creditors and, if so, whether they were entitled

to seek compensation in the Court of Claims under the

Tucker Act for any constitutional deficiency in the

compensation they received through a special process

set up under the Rail Act. The Court concluded that

the Rail Act did not deprive the creditors of an ultimate

Tucker Act remedy, in significant part because “(tJhere

are clearly grave doubts whether the Rail Act would be

constitutional if a Tucker Act remedy were not avail-

able as compensation for any unconstitutional erosion

not compensated under the Act itself.” 419 U.S. at 134;

see also id. at 149.

Moreover, two circuits—including the Federal Cir-

cuit itself—previously indicated that the language at

issue here would allow the people of Enewetak and oth-

ers similarly situated to return to the federal courts to

challenge the adequacy of the compensation received

through the alternative process. See People of

Enewetak, 864 F.2d at 136; Antolok v. United States,

873 F.2d 369, 378 (D.C. Cir. 1989) (“If there is an un-

compensated or inadequately compensated taking, then

plaintiffs’ remedy is in the Claims Court.”).

The court of appeals’ reading also places the Sec-

tion 177 Agreement in conflict with itself. Section 177

of the Compact—the very provision that the Section

177 Agreement is designed to implement—not only un-

ambiguously assigns responsibility for the loss or dam-

age to property to the United States government,’ but

explicitly states that the purpose of the Section 177

Agreement is to provide for “the just and adequate set-

tlement of all such claims which have arisen.” Compact

§ 177(b), App. 204a. The interpretation of Article XII

adopted by the court of appeals thus undermines the

central purpose of Section 177. The court should have

rejected an interpretation of an agreement that is ir-

reconcilable with the congressional purpose behind it.

See Chickasaw Nation v. United States, 534 U.S. 84, 94

(2001).

Il. THE GOVERNMENT CANNOT AVOID JUDICIAL CONSID-

ERATION OF PETITIONERS’ CONSTITUTIONAL CLAIMS

By INVOKING THE POLITICAL QUESTION DOCTRINE OR

LABELS SUCH AS “SETTLEMENT” OR “ESPOUSAL”

There is some indication in the Federal Circuit’s

decision that it viewed the Section 177 Agreement as

comprising not just a jurisdictional bar but also a

“waiver” or “settlement” of petitioners’ claims. See

App. 8a (stating that the Section 177 agreement

“represents not only the United States’ removal of its

consent to be sued in the courts over these claims but

also the claimants’ waiver of their right to sue over

these claims in any U.S. court.”). The court of appeals

also relied on the fact that Article X of the Section 177

Agreement labeled the bar to petitioners’ claims an

“espousal.” See App. 9a. The court declined to question

the “validity of that espousal” under the political ques-

tion doctrine. Id.

7 “The Government of the United States accepts the respon-

sibility for compensation owing to citizens of the Marshall Islands

... for loss or damage to property and person of the citizens of the

Marshall Islands.” Compact § 177(a), App. 2042.

This reasoning cannot justify a bar to judicial con-

sideration of petitioners’ current claims. Petitioners

were not parties to the settlement supposedly reflected

in the Section 177 Agreement, and to read that Agree-

ment as precluding petitioners from pursuing their just

compensation claims now would be contrary to the

“deep-rooted historic tradition that everyone should

have his own day in court.” Martin v. Wilks, 490 U.S.

755, 761 (1989) (internal quotation marks omitted).

Moreover, the government cannot avoid the coustitu-

tional questions raised by the jurisdictional bar to peti-

tioners’ constitutional claims by placing the label of

“espousal” on that bar and declaring it immune from

scrutiny under the political question doctrine. “No pol-

icy underlying the political question doctrine suggests

that Congress or the Executive, or both acting in con-

cert and in compliance with Art. I, can decide the con-

stitutionality of a statute; that is a decision for the

courts.” INS v. Chadha, 462 U.S. 919, 941-942 (1983).

To hold otherwise, as the court of appeals did, is to rule

that the U.S. government may permanently insulate

itself from constitutional claims by negotiating a set-

tlement of such claims with another government, even

if it is the government of one of its own territories, and

even if the U.S. government never intends to honor

that settlement.

A. The Jurisdictional Bar Cannot Be Upheld As

A Waiver Or Settlement Of Petitioners’

Claims

There is no question that parties can compromise

their constitutional claims in litigation, see Town of

Newton v. Rumery, 480 U.S. 386 (1987), but that is not

what happened in this case. Rather, at a time when it

was under the control of the United States government

and seeking independence, the Marshall Islands gov-

ernment agreed with the United States government to

bar United States courts from hearing those claims.

This abrogation of petitioners’ claims, in an agreement

between the U.S. government and an entity under its

control and supervision, does not solve the constitu-

tional problems in this case; if anything, it exacerbates

them.

First, the notion that petitioners’ takings claims

could be waived or settled by someone other than

themselves, especially a governmental entity, is highly

doubtful. “[{PJarties who choose to resolve litigation

through settlement may not dispose of the claims of a

third party[./’ Local No. 93, Int'l Ass’n of Firefighters

v. City of Cleveland, 478 U.S. 501, 529 (1986); cf. Taylor

v. Sturgell, 128 S. Ct. 2161 (2008) (rejecting “virtual

representation” theory of preclusion). Although some

cases have suggested that a governmental entity liti-

gating in a parens patriae capacity can dispose of “the

common public rights” of its citizens, see City of Ta-

coma v. Taxpayers of Tacoma, 357 U.S. 320, 340-341

(1958) (emphasis added), no decision of this Court sug-

gests that a government may negotiate away personal,

individual rights to seek redress in the courts of the

United States for constitutional violations.

Second, even if in some circumstances a govern-

mental entity covid “waive” its citizens’ constitutional

claims, the position of the Marshall Islands government

at the time of the Section 177 Agreement makes it im-

possible to conclude that such a “waiver” here could be

valid. Only sovereign entities may prosecute civil liti-

gation in a parens patriae capacity that would be bind-

ing on their citizens. See City of Rohnert Park v. Har-

ris, 601 F.2d 1040, 1044 (9th Cir. 1979). The Marshall

Islands government was not sovereign when it pur-

portedly negotiated away the rights of the residents of

Enewetak. Although the Marshall Islands at that time

had been granted a modicum of self-government, it re-

mained under the control of the United States govern-

ment as part of the Trust Territory of the Pacific Is-

lands, for which “all executive, legislative, and judicial

authority” was vested in “such agency or agencies as

the President of the United States may direct or au-

thorize.” 48 U.S.C. § 1681(a). Given these circum-

stances, the jurisdictional bar to petitioners’ constitu-

tional claims erected by the Section 177 Agreement be-

tween the United States and Marshall Islands govern-

ments cannot be upheld under the transparent fiction

that petitioners ever agreed to settle their claims

against the United States.

B. The Jurisdictional Bar Is Not Immune From

Judicial Review Under The Political Question

Doctrine

The court of appeals also stated that the political

question doctrine barred it from considering the valid-

ity of the preclusion of petitioners’ constitutional

claims. App. 9a. In so concluding, the court noted that

Article X of the Section 177 Agreement refers to the

jurisdictional bar as an “espousal.”* Id. The court also

® it is doubtful that the concept of espousal has any relevance

here. Espousal is a concept of inter-sovereign relations in interna-

tional law. It is the mechanism by which one sovereign state exer-

cises its right of diplomatic protection of its nationals by asserting

(and in some cases settling) “the private claims of its nationals

against another sovereign.” Asociacion de Reclamantes v. United

Mezican States, 735 F.2d 1517, 1523 (D.C. Cir. 1984); see also

Dames & Moore v. Regan, 453 U.S. 654, 679 (1981) (“International

agreements settling claims by nationals of one state against the

government of another ‘are established international practice re-

stated that “[t]he power to conduct foreign relations

includes the power to recognize a foreign sovereign and

the authority to enter into an international claims set-

tlement on behalf of nationals.” Jd.

That statement is unexceptionable by its terms, but

it has no bearing on this case. Petitioners are not chal-

lenging the United States government’s recognition of

the Republic of the Marshall Islands. Nor does this

case involve a situation in which the United States ar-

ranged for the disposition of claims that its citizens

were pursuing against a foreign sovereign. Rather, in

this case, petitioners are challenging the United States

government’s attempt to dispose of constitutional

claims that had been brought against it—and that had

been brought against it by people who were nationals of

the United States.

flecting traditional international theory.” (quoting Louis Henkin,

Foreign Affairs and the Constitution 262 (1st ed. 1972)) (emphasis

added)). When the Section 177 Agreement was negotiated, the

Marshall Islands’ relation to the United States was not that of a

foreign sovereign. See, e.g., People of Satpan v. Department of

Interior, 356 F.. Supp. 645, 653, 655 (D. Haw. 1973) (Article 3 of the

Trusteeship Agreement allows the United States “in practical ef-

fect the exercise of full sovereign power.”), aff'd, 502 F_2d 90 (9th

Cir. 1974); World Communications Corp. v. Micronesian Tele-

communications Corp., 456 F. Supp. 1122, 1123-1124 (D. Haw.

1978) (holding that Trust Territory of the Pacific Islands was not a

foreign state for purposes of diversity jurisdiction statute).

Rather, the Marshall Islands remained under the control of the

United States, although with limited rights of self-government.

Indeed, the Trusteeship Agreement recognized the Marshallese as

U.S. nationals at this time, providing in Article 11 that the United

States “shall afford diplomatic and consular protection to inhabi-

tants of the trust territory when outside the territorial limits of

the trust territory or of the territory of the administering author-

ity.” App. 287a.

For those reasons, United States v. Pink, 315 U.S.

203 (1942), on which the court of appeals relied, is inap-

posite. Pink involved a claims-settlement agreement

between the United States and the Soviet Union in

which the U.S. was seeking to protect its claims and the

claims of U.S. nationals “against Russia or its nation-

als.” Id. at 227 (emphasis added); see also Medellin v.

Texas, 128 S. Ct. 1346, 1371 (2008) (noting that Pink

“involve[d] a narrow set of circumstances: the making

of executive agreements to settle civil claims between

American citizens and foreign governments or foreign

nationals”). Moreover, the U.S. government’s recog-

nition of the Soviet Union was directly relevant be-

cause that recognition retroactively validated the So-

viet Union’s nationalization of property, from which the

United States’ own claims derived. See Pink, 315 U.S.

at 223. No Fifth Amendment problem arose in Pink

because the private claimants opposed to the United

States’ assertion of ownership over a Russian com-

pany’s U.S. property pursuant to an assignment from

the Soviet government had no Fifth Amendment rights

in the property they were claiming. They were merely

foreign creditors of the Russian company whose claims

did not arise from the transactions of its New York

branch. The effect of the United States’ acceptance of

the Soviet government’s nationalization and assign-

ment was merely to permit the use of the Russian com-

pany’s U.S. property to satisfy American claims against

Russia for other nationalizations, leaving the foreign

creditors of the Russian company to seek satisfaction

by other means. See id. at 226-228; id. at 228 (“[TThe

Federal Government is not barred by the Fifth Amend-

ment from securing for itself and our nationals priority

against such creditors.”).

The question in this case, by contrast, is whether

the United States government may bar its courts from

reviewing the constitutionality of its own actions by se-

curing the agreement of another government (here, the

Marshall Islands) to that bar. Whatever the answer is,

that question is surely a legal one and not a “political”

one.’ “Courts cannot reject as “no law suit” a bona fide

controversy as to whether some action denominated

“political” exceeds constitutional authority.” Chadha,

462 U.S. at 943 (quoting Baker v. Carr, 369 U.S. 186,

217 (1962)). This is particularly true in the context of

the Fifth Amendment’s guarantee of just compensa-

tion, which, this Court has held, is ultimately a matter

for judicial, not political, enforcement. See pp. 15-16,

supra.

This Court has never suggested that constitutional

claims against the United States for just compensation

in the wake of a claims-settlement agreement would be

nonjusticiable. To the contrary, in Dames & Moore v.

Regan, 453 U.S. 654 (1981), where the petitioner ar-

gued that the President’s suspension of claims against

Iran in U.S. courts constituted a taking requiring just

compensation, the Court did not even intimate that

. Moreover, the answer is clearly “no.” This Court has made

clear that the political Branches cannot use international agree-

ments to render the Constitution inapplicable where it would oth-

erwise apply. See Boumediene v. Bush, 128 S. Ct. 2229, 2258-2259

(2008). “[N]o agreement with a foreign nation can confer power on

the Congress, or on any other branch of Government, which is free

from the restraints of the Constitution.” Reid v. Covert, 354 U.S.

1, 16 (1957). The takings context is no different; indeed, as dis-

cussed above, the Fifth Amendment mandates that claimants have

the opportunity to challenge in federal court the adequacy of the

compensation received for a taking.

such takings claims would be barred by the political

question doctrine, but rather stated that “we see no ju-

risdictional obstacle to an appropriate action in the

United States Court of Claims under the Tucker Act.”

Id. at 687-688; see also id. at 691 (Powell, J., concurring

in part and dissenting in part) (“The Government must

pay just compensation when it furthers the nation’s

foreign policy goals by using as bargaining chips claims

lawfully held by a relatively few persons subject to the

jurisdiction of our courts.”). Moreover, the Court ad-

dressed on the merits the petitioner’s attempt to enjoin

the President from implementing a portion of the Al-

giers Accords that required dissolution of attachments

obtained against Iranian assets, and that forced the pe-

titioner to pursue compensation for claims against [ran

before a claims-settlement tribunal. See id. at 668-688.

Dames & Moore thus makes clear that the political

question doctrine presents no obstacle to the resolution

of the constitutional claims presented here.

That the political question doctrine poses no obsta-

cle follows, not just from the Fifth Amendment’s com-

mitment of just compensation issues to judicial resolu-

tion, but also from the limited scope of the political

question doctrine itself. Not “every case or contro-

versy which touches on foreign relations lies beyond

judicial cognizance.” Baker, 369 U.S. at 211. Indeed,

even in circumstances touching far more directly on the

political Branches’ authority to conduct foreign and

military affairs, the Court has not found a political

question impediment to the adjudication of constitu-

tional questions associated with governmental attempts

to appropriate property. See Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952); see also Rus-

sian Volunteer Fleet v. United States, 282 U.S. 481

(1931). The fact that this case involves an agreement

between the U.S. government and the government of

the Marshall Islands does not render the constitutional

issues in this case immune from judicial consideration.

Not only was the Marshall Islands a U.S. Trust Terri-

tory when the Compact and Section 177 Agreement

were negotiated, but courts frequently determine the

meaning and legal effect of treaties and other interna-

tional agreements. See, e.g., Sanchez-Llamas v. Ore-

gon, 548 U.S. 331, 353-354 (2006) (determining the

meaning of treaties as a matter of federal law is a judi-

cial responsibility); Japan Whaling Ass’n v. American

Cetacean Soc’y, 478 U.S. 221, 230 (1986) (“{TJhe courts

have the authority to construe treaties and executive

agreements.”); Reid v. Covert, 354 U.S. 1 (1957) (assess-

ing constitutionality of trials of civilians before courts-

martial conducted pursuant to international agree-

ments with Great Britain and Japan)."°

Regardless of the terminology used to describe the

agreement between the governments of the United

States and the Marshall Islands in which the latter

'O The political question doctrine is inapplicable here for a fur-

ther reason: Congress clearly contemplated that courts would

scrutinize the “espousal” provision in Article X when considering

whether the Section 177 Agreement validly extinguished petition-

ers’ claims. Section 103(g)2) of the Compact Act makes clear that

the espousal in Article X and the withdrawal of jurisdiction in Ar-

ticle XII of the Section 177 Agreement stand or fall together. See

99 Stat. 1782, App. 144a (“the jurisdictional limitations set forth in

Article XII [of the Section 177 Agreement] are not to be construed

or implemented separately from Article X”); see also Antolok, 873

F 2d at 387-390 (Wald, CJ., concurring). By inviting courts to ad-

dress the issue, Congress indicated that the issue is amenable to

judicial resolution, and that it did not view judicial resolution of

the issue as an encroachment on the authority of the political

Branches.

government acquiesced in the United States’ jurisdic

tion-stripping, the legal effect of that agreement is gov-

erned by the Fifth Amendment, which the federal

courts have the power to interpret and enforce.

Whether the Compact and the Section 177 Agreement

can defeat petitioners’ right to a judicial determination

of just compensation—or whether, by contrast, the

Fifth Amendment prohibits the United States from de-

nying an ultimate judicial determination regardless of

whatever non-party may have consented to the de-

nial—is at base a question about what the Fifth

Amendment guarantees. This is the type of question

that the Constitution commits to the courts for resolu-

tion, and the Federal Circuit erred in refusing to ad-

dress it.

CONCLUSION

The petition for a writ of certiorari should be

granted.

DAVOR PEVEC

Bishop Street Tower

700 Bishop Street

Suite 2100

Honolulu, HI 96813

(808) 599-5655

OCTOBER 2009

Respectfully submitted.

SETH P. WAXMAN

PAUL R.Q. WOLFSON

Counsel of Record

MICAH S. MYERS

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

CRAIG ESTES

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Nos. 2007-5175, 2007-5176

THE PEOPLE OF BIKINI, BY AND THROUGH THE

KILI/BIKINI/EJIT LOCAL AND GOVERNMENT COUNCIL,

Plaintiff-Appellant,

Vv.

UNITED STATES,

Defendant-Appellee.

ISMAEL JOHN, JACKSON ADING, JAMES GIDEON, KUNIO

JOSEPH, HARRY JACKSON, BOAZ DAVID, SAM LEVAI,

BALIKEN JACKSON, DAVID OBET, KOSIMA JOHANNES,

JINET LANGRUS, EBELJOSEPH, GEORGE YOSHITARO,

ISAHO LUTHER, BIKENJI PAUL, NEPTALI PETER, AND

MOSES ABRAHAM, FOR THEMSELVES AND FOR A CLASS

CONSISTING OF THE PEOPLE OF ENEWETAK,

Plaintiffs-Appellants,

Vv.

UNITED STATES,

Defendant-Appellee.

January 29, 2009

[554 F.3d 996]

+ * aa

[997]

Before LOURIE, RADER, PROST, Circuit Judges.

RADER, Circuit Judge.

The people and descendants of the Bikini and

Enewetak Atolls seek just compensation for the taking

of their land and their legal claim by the United States

government. The Nuclear Claims Tribunal has

awarded, but not completely funded, compensation for

the Atolls’ inhabitants due to bomb testing in the 1940s

and 1950s. Because the parties clearly and unambigu-

ously agreed to extinguish any judicial jurisdiction over

the claims presented in these appeals, this court affirms

the United States Court of Federal Claims’ dismissal of

these complaints.

The Court of Federal Claims sets forth the back-

ground of this dispute in great detail. See People of Bi-

kini v. United States, T7 Fed. Cl. 744 (2007); John v.

United States, T7 Fed. Cl. 788 (2007). Accordingly, this

opinion will only discuss those facts necessary for these

appeals. The Bikini and Enewetak Atolls are two of

twenty-nine atolls and five islands comprising the Mar-

shall Islands. In December 1947, the United States se-

lected these Pacific Ocean atolls as sites for the Nuclear

Testing Program. The United States removed the in-

habitants of these islands from their homes. Many

refugees suffered deprivations in their new conditions.

Meantime the weapons testing programs devastated

the islands and lagoon, scattering massive amounts of

radioactive material.

The Plaintiffs-Appellants represent the people and

descendants of the Bikini and Enewetak Atolls. In the

early 1980s, both groups filed claims in the United

States Court of Claims. The Plaintiffs sought just com-

pensation for the Fifth Amendment taking of their land

and damages for the United States’ breach of its fiduci-

ary duties. During this litigation, the governments of

the United States and the Marshall Islands reached a

settlement agreement to compensate the refugees and

victims. The United States presented this Compact of

Free Association to Con-{998]gress in 1984. The Com-

pact of Free Association Act of 1985 (the Compact Act)

became law on January 14, 1986. Pub. L. No. 99-239, 99

Stat. 1770 (1986). Section 177(a) of the Compact Act

sets forth the United States’ acceptance of responsibil-

ity for the damage to property and persons resulting

from the Nuclear Testing Program. Section 177(b)

provides for the settlement of all claims past, present

and future that are based upon, arise out of, or are in

any way related to the Nuclear Testing Program. The

United States and the Government of the Marshall Is-

lands entered into a further agreement to implement

Section 177 of the Compact Act—the Section 177

Agreement—on October 21, 1986. The Compact Act

specifically references and incorporates the provisions

of the Section 177 Agreement into the Compact Act.

Compact Act, § 103(g). In view of the Compact Act and

the Section 177 Agreement, the successor to the Court

of Claims, the United States Claims Court, held that

the United States’ consent to be sued under the Tucker

Act had been withdrawn with respect to the pending

takings claims and dismissed. Juda v. United States, 13

Cl. Ct. 667 (1987).

The Section 177 Agreement created a Nuclear

Claims Tribunal to render final determination upon all

“past, present and future” claims related to the Nuclear

Testing Program. Congress committed $150 million to

initiate a trust fund to support the Tribunal’s opera-

tions and awards. Section 177 Agreement, Art. I, § 1.

Congress designated $45.75 million of that amount for

the payment of awards. Jd. at Art. II, § 6(c). Even

from its inception, many critics recognized that the Tri-

bunal fund would not satisfy all of the claims.

On August 3, 2000, the Tribunal awarded the Plain-

tiffs-Appellants, the People of Enewetak, $385,894,500,

including $244,000,000 for past and future loss of

Enewetak Atoll, $107,810,000 for restoration costs and

radiation cleanup, and $34,084,500 for hardships suf-

fered during the relocation from the atoll. In February

2002 and 2003, the Tribunal paid only $1,078,750 and

$568,733 on those awards—less than 1% of their total

award.

In March 2001, the Tribunal awarded the Plaintiffs-

Appellants, the People of Bikini, $563,315,500 in com-

pensation, including $278,000,000 for the past and fu-

ture loss of their land. Due to inadequate funding,

however, the Tribunal paid only $1,491,809 in 2002, rec-

ognizing that the fund is “insufficient to make more

than a token payment.” The fund made a second pay-

ment of $787,370.40 in 2003, approximately 0.4% of the

total award. As of October 2006 only $1 million re-

mained in the Tribunal fund.

Article IX of the Section 177 Agreement provides

an avenue for seeking additional funding from Con-

gress. A “Changed Circumstances” petition can be

submitted to Congress if “such injuries render the pro-

visions of this Agreement manifestly inadequate.” Sec-

tion 177 Agreement, Art. IX. Article [X goes on to say

that it “does not commit the Congress of the United

States to authorize and appropriate funds.” Jd. The

Government of the Marshall Islands submitted a

Changed Circumstances petition to Congress request-

ing additional funding in 2000. To date, Congress has

not acted on that petition.

In 2006, the Plaintiffs-Appellants brought suit in

the United States Court of Federal Claims seeking just

compensation for deprivation of property rights under

the Fifth Amendment. The Plaintiffs based their tak-

ings claims on inadequate funding of the Tribunal’s

award programs (claims-based taking) and the depriva-

tion of their land during the testing (land-based taking).

Before the United States Court of Federal Claims, the

Appellants also as-(999]serted various contract and im-

plied contract theories.

The Court of Federal Claims granted the Govern-

ment’s motion to dismiss primarily because the Section

177 Agreement deprives any court of the United States

of jurisdiction over these claims. The trial court also

observed that nonjusticiable political questions, ripe-

ness doctrines, statute of limitations bars, collateral es-

toppel bars, and other deficiencies in the claim pre-

vented any grant of relief. The Appellants timely ap-

pealed to this court. On appeal, this court received only

the land-based and claims-based taking claims.

IT.

This court reviews the dismissal of a complaint

pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of

the Court of Federal Claims without deference. See

Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir.

2004); Shearin v. United States, 992 F.2d 1195, 1195

(Fed. Cir. 19938).

The Section 177 Agreement states: “This Agree-

ment constitutes the full settlement of all claims, past,

present and future, of the Government, citizens and na-

tionals of the Marshall Islands which are based upon,

arise out of, or are in any way related to the Nuclear

Testing Program ....” Section 177 Agreement, Art. X

(emphasis added). This enacted Agreement has the

force of law. Compact Act, § 175.

Addressing the “United States Courts,” Article

XII of the settlement agreement instructs, “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.” Section 177 Agreement, Art. XII (em-

phasis added). Article XII thus represents the parties’

agreement to extinguish any judicial power to hear

these claims.

This court proceeds from the vantage point that

constitutional rights and “wrongs,” if at all possible, de-

serve a forum for hearing and relief in the U.S. judicial

system. At the same time, this court acknowledges

that its first obligation is to ensure that it has power

and authority to hear a claim, even a constitutional

claim, in the first place. See Ex parte McCardle, 74

U.S. 506, 512 (1868) (“The first question necessarily is

that of jurisdiction.”).

To be specific, the United States Constitution di-

vides power between the legislative, executive, and ju-

dicial branches. Judicial power is vested in one Su-

preme Court and “in such inferior Courts as the Con-

gress may from time to time ordain and establish.”

U.S. Const. art. 3, § 1. By “ordain,” the Constitution

meant to give the legislature the power to set the ju-

risdiction and the limits of judicial authority for the “in-

ferior Courts.” In addition, the legislative authority to

establish the inferior courts includes the power to limit

their jurisdiction and powers. Because Congress “or-

dain[s] and establish[es]’ all courts under the Supreme

Court, the legislative authority includes the power to

set their jurisdiction. And just as Congress can grant

jurisdiction, Congress can take it away. See Ex parte

McCardle, 74 U.S. at 514 (“Without jurisdiction the

court cannot proceed at all in any cause. Jurisdiction is

power to declare the law, and when it ceases to exist,

the only function remaining to the court is that of an-

nouncing the fact and dismissing the cause.”). Thus,

before proceeding to hear any claim, even a constitu-

tional claim, this court must ensure that it has jurisdic-

tion to act.

The Section 177 Agreement is a settlement agree-

ment. By its own terms, it [1000] constitutes “the full

settlement of all claims, past, present and future, of the

Government, citizens and nationals of the Marshall Is-

lands which are based upon, arise out of, or are in any

way related to the Nuclear Testing Program.” Section

177 Agreement, Art. X,§ 1. As part of the agreement,

the Government of the United States committed $150

million to the fund, setting aside $45.75 million for the

payment of monetary awards rendered by the newly

created Nuclear Claims Tribunal.

On appeal, the parties do not contest the amount

awarded by the Nuclear Claims Tribunal. Rather they

seek enforcement of the award—in spite of the Claims

Tribunal’s award of amounts beyond the funding limits

of the settlement agreement. Moreover the parties

contemplated the prospect of inadequate funding for

full compensation when entering into the Section 177

Agreement. In the event that “such injuries render the

provisions of this Agreement manifestly inadequate,”

Article [IX provides an avenue for submitting a changed

circumstances petition to Congress.

The “Changed Circumstances” provision acknowl-

edges that “this Article does not commit the Congress

of the United States to authorize and appropriate

funds.” Section 177 Agreement, Art. IX. The parties

expressly agreed to this procedure and in doing so

trusted the U.S. Congress to weigh and evaluate and

act upon any changed circumstances. Thus, the settle-

ment agreement entrusted the funding remedy to a

procedure outside the reach of judicial remedy.

Indeed on that point, the language of the settle-

ment agreement is clear: “All claims described in Arti-

cles 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.”

Section 177 Agreement, Art. XII (emphasis added).

This statement represents not only the United States’

removal of its consent to be sued in the courts over

these claims but also the claimants’ waiver of their

right to sue over these claims in any U.S. court. Thus,

this court has no authority in this matter, except to

dismiss for lack-of jurisdiction.

This case does not present any statutory ambigui-

ties about the jurisdiction or, actually, the absence of

jurisdiction to entertain the Bikini and Enewetak tak-

ing claims. This court notes that, in Blanchette, the Su-

preme Court refused to resolve ambiguities in the stat-

ute about Tucker Act jurisdiction to avoid encountering

“grave doubts” about the constitutionality of the Rail

Act itself. Blanchette v. Connecticut Gen. Ins. Corps.,

419 U.S. 102, 134 (1974). This court does not need to

engage in any caution due to ambiguities. The lan-

guage of the Section 177 Agreement presents no ambi-

guities whatsoever. Therefore, this court does not need

to follow the careful course of the Blanchette case.

Moreover, unlike the Blanchette case, this case in-

volves a settlement negotiated between the United

States and the Government of the Marshall Islands.

The power to conduct foreign relations includes the

power to recognize a foreign sovereign and the author-

ity to enter into an international claims settlement on

behalf of nationals. See United States v. Pink, 315 U.S.

203, 229-30 (1942). The Plaintiffs-Appellants, the Peo-

ple of Enewetak, challenge the validity of that espousal.

However, that challenge raises a political question be-

yond the power of this or any court to consider. Jd. at

229 (“What government is to be regarded here as rep-

resentative of a foreign sovereign state is a political

rath-{1001]er than a judicial question, and is to be de-

termined by the political department of the govern-

ment.” (quoting Guaranty Trust Co. v. United States,

304 U.S. 126, 137, (1938))).

This court observes that its sense of justice, of

course, makes it difficult to turn away from a case of

constitutional dimension. However, the same sense of

justice recognizes that this court cannot act without ju-

risdiction. In sum, this court cannot hear, let alone

remedy, a wrong that is not within its power to adjudi-

cate. The sweeping language of the Section 177

Agreement withdraws jurisdiction of the U.S. courts.

Thus, this court affirms the United States Court of

Federal Claims’ dismissal of these complaints.

AFFIRMED

lla

APPENDIX B

UNITED STATES COURT OF FEDERAL CLAIMS

No. 06-289L

ISMAEL JOHN, et al., FOR THEMSELVES AND FOR A

CLASS CONSISTING OF THE PEOPLE OF ENEWETAK,

Plaintiffs,

Vv.

UNITED STATES,

Defendant-Appellee.

Filed August 2, 2007

(77 Fed. Cl. 788]

OPINION AND ORDER

MILLER, Judge.

This case, a resurrection of proceedings before the

court in the late 1980s, is before the court after argu-

ment on defendant's dispositive motion. Following the

filing of plaintiffs’ amended complaint on August 10,

2006, defendant moved to dismiss pursuant to RCFC

12(bX{1) and 12(b)(6). The instant case, along with its

companion, People of Bikini v. United States, No. 06-

288C (Fed. Cl. filed Apr. 11, 2006),’ puts before the

court the nature of the legal responsibility undertaken

by the United States for the post-World War II testing

' The opinion in the companion case also is issued this date.

12a

of thermonuclear bombs on the island homelands of

plaintiffs. This program obliterated or compromised

the land and caused the relocation of the islands’ inhabi-

tants, who have sought redress in political, judicial, and

special-purpose fora over the last sixty years. Argu-

ment has been held, and two rounds of supplemental

briefing have been completed.”

BACKGROUND

Plaintiffs include seventeen persons with land

rights on Enewetak who were members of the

Enewetak community during their initial evacuation by

the United States in December 1947. Pursuant to

RCFC 23, plaintiffs bring this suit in the United States

Claims Court, now the United States Court [792] of

Federal Claims, on their own behalf and on behalf of a

class that

consists of all living persons who were mem-

bers of the Enewetak community at the time of

the 1947 evacuation of Enewetak Atoll, all liv-

ing descendants of those members, and all

other persons who by traditional law and cus-

tom are recognized as members of the

Enewetak people.... There are currently more

than 2000 members of the Enewetak people.

Am. Compl. filed Aug. 10, 2006, { 14. Plaintiffs include

a Senator for the people of Enewetak; the Mayor of the

people of Enewetak; members of the

Enewetak/Ujelang Council; and the Iroji, or chiefs, of

the ri-Enewetak; and the ri-Enjebi.

. By order entered on March 28, 2007, this case and Bikini

were consolidated for purposes of argument only.

l3a

Plaintiffs plead six counts against the United

States for occupation and use of portions of Enewetak

Atoll. Plaintiffs allege: (1) a temporary taking of

Enewetak Atoll by the United States between Decem-

ber 1947 and October 1980 and of select portions within

Enewetak from October 1980 through the next twenty

to fifty years (“Count I”); (2) breach of an implied-in-

fact contract formed by the conduct of the United

States, which constituted “a commitment to care for

[plaintiffs’] physical, economic, educational, cultural,

and other needs until it returned their atoll in substan-

tially the condition in which it had received it or paid

compensation for any significant changes,” Am. Compl.

41 192 (“Count IT”); (3) a taking of plaintiffs’ taking claim

for the use and occupation of Enewetak Atoll by the

United States in failing to fund the Nuclear Claims Tri-

bunal so as to deny just compensation (“Count ITT”); (4)

an unlawful taking of plaintiffs’ property interest mani-

fested in their implied-in-fact contract claim for failure

to provide for adequate funding of the Nuclear Claims

Tribunal (“Count IV”); (5) a taking of Enewetak Atoll

through the formation of the Compact of Free Associa-

tion in 1986 (“Count V”); and (6) a breach of implied-in-

fact contract fiduciary duties through formation of the

Compact of Free Association (“Count VI”).

FACTS

Judge Kenneth R. Harkins presided over these

cases during the 1980s. He labored on them conscien-

tiously and painstakingly for years. The undersigned, a

new and young judge at the time, witnessed his dedi-

cated efforts. The United States Court of Appeals for

the Federal Circuit acknowledged the thoroughness of

Judge Harkins’s opinions. Judge Harkins fully ad-

dressed the factual backdrop of this case; the Federal

14a

Circuit affirmed his decision, see People of Enewetak v.

United States, 864 F.2d 134, 135 (Fed. Cir. 1988), affg

Peter v. United States, 13 Cl. Ct. 691 (1987) (also stating

facts relevant to plaintiffs’ complaint in Tomaki Juda et

al. v. United States, No 172-81L (Cl. Ct. filed Mar. 16,

1981)); and the parties neither have adduced new facts

nor offered insight into the facts of record over the last

nineteen years that would change them. This court

adopts and restates, with minor modifications, the facts

as found by Judge Harkins. See Peter v. United States,

6 Cl. Ct. 768, 770-73 (1984) (Enewetak Atoll; granting

and denying, in part, motion to dismiss) (“Peter I”);

Juda v. United States, 6 Cl. Ct. 441, 446-49 (1984) (Bi-

kini Atoll; denying motion to dismiss) (“Juda I’ ). The

facts subsequent to 1987 are undisputed, except where

noted otherwise.

I. Nuclear tests in the Marshall Islands

1. History of the Marshall Islands

During the period June 30, 1946, to August 18,

1958, the United States conducted a series of nuclear

tests in the Marshall Islands that included detonation of

twenty-three atomic and hydrogen bombs at Bikini

Atoll and forty-three atomic and hydrogen bombs at

Enewetak Atoll. These tests necessitated removal of

the inhabitants and their relocation to other islands and

resulted in severe physical destruction at the atolls di-

rectly involved, as well as radioactive contamination at

other parts of the Marshall island chain. The effects of

the testing program included: annihilation of some is-

lands and vaporization of portions of others; permanent

resettlement with substantial relocation hardships to

some inhabitants; exposure to high levels of radiation

by some inhabitants; and widespread contamination

ld5a

from radioactivity that renders some islands unus[]able

by man for indefinite future periods.

[793] The Marshall Islands are a part of Micronesia,

formerly a United Nations Trust Territory adminis-

tered by the United States. The component parts of

the Trust Territory of the Pacific Islands (the “Trust

Territory”) were the Marshall, Caroline, and Mariana

island chains. The Trust Territory includes more than

2,000 islands and atolls dispersed throughout the Pa-

cific Ocean, within an area approximately the size of the

continental United States.

Until World War II, Micronesia was administered

by Japan under a League of Nations Mandate. The is-

lands came under the United States’ control by military

occupation in 1944. The United Nations and its Trus-

teeship Council were given jurisdiction over non-self-

governing territories, and trusteeship agreements

were executed between the United Nations and those

signatory powers in de facto possession of such territo-

ries.

The United States was designated “administering

authority” over the Trust Territory pursuant to an

agreement ratified by the United Nations Security

Council on April 2, 1947, and approved by Congres-

sional joint resolution on July 18, 1947. 61 Stat. 3301,

T.LA.S. No. 1665. In 1947 military government was

terminated, and administration of the Trust Territory

was delegated to the Secretary of the Navy. Exec. Or-

der No. 9,875, 3 C.F.R. 658 (1943-48 comp.). In 1951

some administrative responsibilities were transferred

to the Interior Department. Exec. Order No. 10,265, 3

C.F.R. 766 (1949-53 comp.). By the Act of June 30,

1954, as amended (48 U.S.C. § 1681 (1982)), Congress

directed:

16a

(a) Until Congress shall further provide for the

government of the Trust Territory of the Pa-

cific Islands, all executive, legislative, and judi-

cial authority necessary for the civil admini-

stration of the Trust Territory shall continue to

be vested in such person or persons and shall

be exercised in such manner and through such

agency or agencies as the President of the

United States may direct or authorize.

Prior to 1962 responsibility for administration of

the Trust Territory was divided between the Interior

and Navy Departments. Effective July 1, 1962, the au-

thority for civil administration of the Trust Territory

was redelegated to the Secretary of the Interior, with

the direction to carry out the obligations assumed by

the United States as the administering authority “un-

der the terms of the Trusteeship Agreement and the

Charter of the United Nations.” Exec. Order No.

11,021, 3 C.F.R. 600 (1959-63 comp.). See generally

Porter v. United States, 496 F.2d 583, 587-90 (Ct. Cl.

1974), cert. denied, 420 U.S. 1004 (1975). Pursuant to

this authority, the Secretary of the Interior established

a Trust Territory Government (the “T'TG”), which in-

cluded executive, legislative, and judicial branches,

with a High Commissioner as chief executive. Sec. Or-

der No. 2,918, 34 Fed. Reg. 157 (1968).

In 1969 the United States began negotiations with

the inhabitants of the Trust Territory directed to es-

tablishment of a framework for transition to constitu-

tional self-government and future political relation-

ships. During the negotiations the Trust Territory be-

came divided into four governmental entities: North-

ern Mariana Islands, Republic of Palau, Federated

States of Micronesia, and Republic of the Marshall Is-

lands.

17a

2. Occupation of Enewetak Atoll

Enewetak Atoll is composed of approximately forty

islands, which have a combined land area of 2.75 square

miles and enclose a lagoon of approximately 388 square

miles. The largest islands are Enewetak Island, with a

land area of 321.86 acres, and Engebi Island, with a

land area of 290.58 acres.

The Enewetak people traditionally have been di-

vided into two separate subcommunities, one on Engebi

Island and one on Enewetak Island. Members of the

two communities historically have intermarried and co-

operated in certain economic activities. They now elect

a common council. The Enewetak people are governed

by the two chiefs (Iroji) of the subcommunities; a Mag-

istrate; an elected Council of twelve members; a Scribe;

and a Senator, who represents the Enewetak people in

the legislature of the Marshall Islands government.

The people of Enewetak historically were eco-

[794]nomically self-sufficient on the basis of lagoon fish-

ing, nonintensive agriculture, and various gathering

activities. Beginning in the early 20th century, copra

was produced as an export crop.

During February 1944 American troops captured

Enewetak Atoll from the Japanese, which at that time

had several thousand personnel on Engebi. On Febru-

ary 24, 1944, the military governor posted Proclamation

No. 1. This proclamation notified the civilian inhabi-

tants that existing personal and property rights would

be respected and existing laws and customs would re-

main in force and effect, except “to the extent that it is

necessary for me in the exercise of my powers and du-

ties to change them.”

Later in February 1944, the Enewetak people were

relocated to a camp on Aomon Island, an island in the

18a

atoll. Eventually the total civilian population of the

atoll was gathered in this camp. The Army unit left on

July 4, 1944; thereafter, the Navy, until June 1946, pro-

vided all supplies of food, clothing and housing for the

Enewetak people. During the period February 1944 to

late 1945, the Enewetak people were permitted to re-

side only on Aomon Island and on the adjacent Bijire

Island.

On June 14, 1946, in preparation for the com-

mencement of Operation CROSSROADS; at Bikini

Atoll, the entire population of Enewetak Atoll was

transported by the Navy to Kwajalein Atoll, where

they were housed in temporary facilities and supplied

by the Navy. On July 25, 1946, Enewetak Atoll was de-

clared safe; on July 30, 1946, the Enewetak people were

returned to Aomon and Bijire Islands at Enewetak

Atoll.

During the period of residence at Kwajalein Atoll,

United States officials caused the Enewetak people to

believe that their removal from Enewetak would be

temporary; that they would be able to return to

Enewetak at the conclusion of the Bikini nuclear tests;

that temporary relocation was necessary to protect

them against harm from the tests on Bikini Atoll; and

that, throughout the relocation, their needs for food,

shelter, and other necessities would be provided by the

United States.

On December 1, 1947, Enewetak Atoll was chosen

as the site for the nuclear tests in Operation SAND-

STONE, and the United States Governor of the Mar-

shall Islands notified the Enewetak people that they

must leave the atoll. During December 1947 the entire

population, with personal belongings, was boarded on a

United States Navy LST and transported to Ujelang

19a

Atoll, where they arrived on December 21, 1947. Dur-

ing the period of their relocation on Ujelang Atoll,

United States officials caused the Enewetak people to

believe that their removal would be temporary; that

they would be able to return to Enewetak at the con-

clusion of the United States use of Enewetak; that relo-

cation was necessary to protect them against harm re-

sulting from United States operations; and that,

throughout the relocation, their needs for food, shelter

and other necessities would be provided by the United

States.

Ujelang Atoll is the westernmost and most isolated

geographically of the inhabited atolls and islands that

comprise the Marshall Islands. It lies 124 miles south-

west of Enewetak Atoll and 617 miles west of Majuro,

the administrative center and the major commercial

port for the Marshall Islands. Ujelang Atoll has 0.67

square miles of dry land area and 25.47 square miles of

lagoon and is rocky and relatively unproductive for ag-

riculture.

Ujelang resources were inadequate to provide the

Enewetak people with a regular supply of food and

other material necessities. Infrequent and irregular

ship visits resulted in severe shortages of rice, flour,

and materials needed to repair buildings and boats. By

1952 most of the Enewetak people’s sailing canoes were

rendered unus[Jable as a result of severe shortage of

sailcloth, paint, fishing net material, and hooks. In the

mid-1960s, the island’s rat population increased greatly

and destroyed stored copra and supplies of rice and

flour. By 1967 food was so short that the people on

Ujelang had only enough for one meal each day.

On October 20, 1967, a TTG ship arrived to find the

people on Ujelang with no copra to sell and no money to

20a

buy needed food and supplies. Almost all of the nearly

300 people on the atoll boarded the ship and demanded

transport to Majuro to protest to the govern-[795}ment

that they were starving. A Trust Territory official, af-

ter seven hours, radioed for food and agreed to stay on

Ujelang until the supply ship returned. The supply

ship returned with food on November 3, 1967.

In November 1968 the people on Ujelang were to-

tally out of rice, flour, sugar, and other imported goods.

In June 1972 a typhoon destroyed the breadfruit crop,

and on August 30, 1972, a supply ship found that the

Enewetak people had been out of rice, flour, sugar, and

canned meat for over two weeks.

The nuclear program on Enewetak Atoll extended

from April 1948 to August 1958 and included forty-

three atomic and hydrogen bomb tests. The program

included Operation SANDSTONE (April and May

1948), Operation GREENHOUSE (April and May

1951), Operation IVY (November 1952), Operation

REDWING (May through July 1956), and Operation

HARDTACK (May through August 1958). The nuclear

tests at Enewetak Atoll included detonations in the air,

on towers, on the surface of islands and reefs, on

barges, and underwater. Two plutonium tests on the

island of Runit, as a result of failure to fully detonate,

sprayed chunks of plutonium across the island. On Au-

gust 22, 1958, the President of the United States an-

nounced a suspension of further atmospheric testing of

nuclear weapons to take effect on October 31, 1958.

The Nuclear Testing Program resulted in serious

damage to Enewetak Atoll. Five islands were com-

pletely or partially vaporized. Islands on the northern

half of the atoll, including Engebi and Runit, were con-

taminated heavily with radioactivity; radioactive

Zla

wreckage littered many of the islands. The lagoon was

damaged seriously. Vegetation was completely

stripped from many islands, and almost all plants of ag-

ricultural and economic value on the atoll were totally

destroyed.

On November 5, 1956, the two hereditary chiefs,

and a majority of the Enewetak people who possessed

rights in the atoll, were assembled on Ujelang to dis-

cuss a settlement of past and future use of the atoll. On

November 19, 1956, the High Commissioner of the TTG

as one party and the two hereditary chiefs—twenty-

four individuals of Enewetak and twenty-four individu-

als of Engebi—as the other parties executed a docu-

ment captioned: “Agreement in Principle Regarding

the Use of Enewetak Atoll.” This document provided

that the TTG would grant and convey to the Enewetak

people full use rights in Ujelang atoll to continue “until

such time as it may be possible for the people to return

to Enewetak.” The TTG was given full use rights to

Enewetak Atoll “until such time as it will not be neces-

sary to occupy and use Enewetak Atoll in the interest

of the maintenance of international peace and security.”

The sum of $175,000 was to be conveyed to persons who

possess rights in Enewetak, to be administered as fol-

lows: $25,000 paid at the time of signing to be divided

by the hereditary chiefs and the remaining $150,000 to

be placed in a trust fund administered by the High

Commissioner. Section 5 of the document contained an

assertion that the chiefs and Alabs (family heads) who

signed had the “full and complete” right to represent

the Enewetak people and included the following provi-

sions with respect to claims for use of the atoll:

Accordingly, the Chiefs and Alabs signing

this agreement agree that any future claims

based on the use of Enewetak by the Govern-

22a

ments of the United States or the Trust Terri-

tory or on the moving of the people from

Enewetak Atoll to Ujelang Atoll shall be

against them and not against the Government.

This agreement was made voluntarily and without any

compulsion or coercion whatsoever.

On June 20, 1957, a document captioned “Use and

Occupancy Agreement for Land in the Trust Territory

of the Pacific Islands under the Administrative Re-

sponsibility of the Department of the Interior” was re-

corded in Record Book No. 1 of the Marshall Islands

District. This document recites that it was made as of

the 2nd day of March 1944 by and between the TTG, as

grantor, and the United States of America; that the

TTG was “owner of exclusive use and occupancy rights

for an indefinite period of time” of the Enewetak Atoll;

and that the United States “desires to acquire the use

and occupancy of the land” for an indefinite period of

time. In [796] the agreement the TTG conveyed to the

United States the exclusive right to use and occupy

Enewetak Atoll for an indefinite period of time and

agreed to save the United States harmless from any

and all claims, arising directly or indirectly, from such

use or occupancy, except for claims arising from negli-

gence by the United States. The section on conditions

of use provided: (1) that use by the United States shall

be consistent with the provisions and purposes of the

Trusteeship Agreement; (2) that on or about June 30,

1961, and on a similar date each five-year period there-

after, the United States and the TTG would “jointly re-

view and determine the need for continuing the use and

occupancy,” with final decision resting in the President

of the United States; and (8) that, if a decision was

made that a need for continued use and occupancy does

23a

not exist, the grant would terminate and “all interest in

said land shall revert to” the TTG.

During the 1960s, after the prohibition of atmos-

pheric and underwater testing, Enewetak Atoll’s la-

goon was used as a target for test missiles fired from

Vandenberg Air Force Base in California.

In September 1971 the United States Defense Nu-

clear Agency and the Air Force developed plans for an

operation on Enewetak Atoll to be known as the Pacific

Cratering Experiments (“PACE”). The program was

designed to test cratering effects of nuclear blasts by

simulating such blasts with high explosives. Between

September 1971 and October 1973, the United States’

preparations for PACE included stripping vegetation

and topsoils from one of the islands. In October 1972

the United States District Court for the District of

Hawaii granted a preliminary injunction to the people

of Enewetak to prohibit further work on PACE until

adequate environmental impact studies were con-

ducted. People of Enewetak v. Laird, 353 F. Supp. 811

(D. Haw. 1973). On June 8, 1973, the Air Force termi-

nated plans for the PACE program on Enewetak.

On April 18, 1972, the United States Special Repre-

sentative to the Micronesian Political Status Talks an-

nounced that the United States would return

Enewetak Atoll to the people of Enewetak by the end

of 1973. From 1972 until 1977, various United States

government agencies engaged in studies and planning

for radiological cleanup and rehabilitation programs.

On August 31, 1976, representatives of the United

States executed a document captioned “Agreement

Terminating Rights, Title, and Interest of the United

States to Enewetak Atoll.” After reciting that the

United States wishes to terminate its use and occu-

24a

pancy in Enewetak Atoll, this document provided that

all right, title, and interest of the United States in or to

Enewetak Atoll “existing at noon on the day prior to

the date of signature by the last party to sign this

agreement are hereby terminated.” The Acting High

Commissioner of the TTG, the last party to sign, exe-

cuted the document on September 16, 1976.

On September 16, 1976, the TTG Acting High

Commissioner executed a document captioned “Release

and Return of Use and Occupancy Rights to Enewetak

Atoll.” This document provided that the TTG does

hereby “quitclaim, release and restore to all persons

who hold traditional rights to the lands of Enewetak

Atoll all right, title, interests and rights of use and oc-

cupancy in and to Enewetak Atoll.”

From May 1977 through April 1980, the United

States undertook cleanup efforts. In April 1980 the

Enewetak people as a whole returned to Enewetak

Atoll for permanent residence.

The Enewetak people have been able to resettle

only the southern portion of the atoll. Access to several

of the northern islands, including Engebi, is restricted

by order of the Department of the Interior on the

ground that remaining radioactivity renders these is-

lands dangerous for habitation, agriculture, and many

other uses for a period estimated to be approximately

thirty years. Runit Island at present contains more

than 110,000 cubic yards of plutonium-contaminated soil

and debris that during the cleanup operation had been

collected from throughout the atoll. This material had

been mixed with cement and water to form a slurry,

placed in a bomb crater on Runit, and covered by a con-

crete dome eighteen inches [797] thick and 370 feet in

25a

diameter. Runit is expected to be extremely radioac-

tive for at least the next 240,000 years.

II. Peter I, Juda I, and Nitol I

On September 15, 1982, plaintiffs first filed a com-

plaint with the United States Claims Court, now the

United States Court of Federal Claims. Johannes Pe-

ter et al. v. United States, No. 461-82L (Cl. Ct. filed

Sept. 15, 1982). The complaint named “17 individual

plaintiffs who claim on their own behalf and on behalf of

a class composed of all persons recognized as the

Enewetak people.” Peter v. United States, 6 Cl. Ct.

768, 769 (1984) (granting and denying, in part, motion to

dismiss) (“Peter I” ). Plaintiffs alleged four causes of

action: “(1) unlawful taking of Enewetak Atoll [for the

period from December 1947 to April 1980]; (2) breach of

an implied-in-fact contract that imposed upon the

United States responsibilities toward the Enewetak

people in the nature of a fiduciary; (3) failure to comply

with the terms of the Trusteeship Agreement; and (4)

breach of agreements between the United States and

the Trust Territory Government.” Peter v. United

States, 13 Cl. Ct. 691, 691-92 (1987) (“Peter IT’) (dis-

missing complaint based on withdrawal of jurisdiction).

On November 30, 1984, Judge Harkins granted defen-

dant’s motion to dismiss regarding Counts I, III, and

IV and denied the motion to dismiss regarding plain-

tiffs’ implied-in-fact contract claim. Peter I at 781.

Peter I concluded that, “[flor purposes of applica-

tion of the statute of limitations, in a claim for just

compensation for a taking, August 22, 1958, must be the

‘taking date’ of Enewetak Atoll, in accordance with the

doctrine announced in [United States v. Dickinson, 331

U.S. 745 (1947)].” Id. at 775. Based on this determina-

tion, the court dismissed plaintiffs’ first cause of action

26a

for failure to comply with the six-year statute of limita-

tions in the Tucker Act, 28 U.S.C. § 2501 (1986). Peter /

dismissed the third count based on 28 U.S.C. § 1502

(1986), holding that “(tJhe Trusteeship Agreement is a

treaty, and it has been made with a recognized unit of

foreign nations. [The Peter p)laintiffs’ claim in count

III clearly grows out of and is dependent upon that

treaty.... Such relationship bars jurisdiction in this

court.” Jd. at 779 (citing Hughes Aircraft Co. v. United

States, 534 F.2d 889, 903 (Ct. Cl. 1976); S.N.T. Fratelli

Gondrand v. United States, 166 Ct. Cl. 473, 478 (1964)).

Regarding plaintiffs’ implied-in-fact contract claim, the

court held that “plaintiffs have alleged facts which for

purposes of a motion to dismiss must be accepted as

true. The facts, as alleged, establish conduct that is

adequate to establish the requisite elements of a con-

tract implied-in-fact.” Peter I at 779; see also id. at 692

(“It was determined that plaintiffs were not barred by

the statute of limitations from an offer of proof as to the

origin, nature, and content of the alleged implied-in-fact

contract, and that count II stated a breach of contract

claim within the Tucker Act jurisdiction of this court.”)

Finally, the court held that count IV of plaintiffs’

claims, which “alleges plaintiffs are third party benefi-

ciaries to the overall transaction involved in the Sep-

tember 16, 1976, agreement between the TTG and the

United States,” was subject to dismissal because “the

September 16, 1976, transactions did not confer rights

as third party beneficiaries to plaintiffs.” Peter I at

780, 781.

In conjunction with the filing of the complaint in

Peter, thirteen other related cases were filed with the

Claims Court regarding the effects of the Nuclear Test-

ing Program in the Marshall Islands. Judge Harkins

consolidated eleven complaints filed on September 9,

27a

1981, and a twelfth complaint filed on July 26, 1982. See

Nitol v. United States, 7 Cl. Ct. 405, 407 (1985) ( “Nitol

I’). The court explained:

The claims of the inhabitants of the Bikini

Atoll and Enewetak Atoll, sites used for atomic

testing, factually are significantly different

from each other, and both are distinguishable

factually from the claims in the Nitol series of

cases. For these reasons, the three types of

claims have been handled separately. Only the

Nitol series of cases have been consolidated.

Juda I at 446 (denying motion to dismiss).

The Nitol plaintiffs included “3,318 inhabitants of

atolls and islands that were not used [798] as nuclear

test sites. These claims are based primarily on the ef-

fects of radiological fallout and contamination that re-

sulted from the test program....” Jd. The Nitol plain-

tiffs alleged three causes of action:

(I) an unlawful taking of plant life, fish life, fish-

ing rights, the land, the lagoon, the waters of

the lagoon, and surrounding ocean of the atoll

or island; (II) breach of an implied-in-fact con-

tract between the people of the Marshall Is-

lands and the United States that obligated the

United States as a fiduciary to protect the

health, well being and economic condition of the

Marshallese people; and (III) breach of fiduci-

ary duties arising out of the Trusteeship

Agreement, which is characterized as a bilat-

eral contract between the United States and

United Nations.

28a

Nitol I at 412. Judge Harkins granted defendant’s mo-

tion to dismiss as to counts II and III and denied de-

fendant’s motion as to count I. Jd. at 417.

On March 16, 1981, plaintiffs in the related case of

Juda filed their complaint, Tomaki Juda et al. v.

United States, No. 172-81L (Cl. Ct. filed Mar. 16, 1981),

“Snclud[ing] as plaintiffs the 1,004 members of the Bi-

kini community as of May 1, 1981, and is concerned with

the claims of the inhabitants of Bikini atoll.” Juda J at

446. The plaintiffs in Juda alleged three causes of ac-

tion:

(1) an unlawful taking of Bikini Atoll from

March 7, 1946, to January 24, 1979; (2) an

unlawful taking that began on January 24, 1979,

and would continue for the next 20 to 60 years;

and (3) breaches of fiduciary responsibilities

imposed in 1946, which do not depend upon the

Trusteeship Agreement, but are claimed to

arise from a contract implied-in-fact that obli-

gates defendant to protect the health, well be-

ing and economic condition of the Bikini people.

Id. at 449.

Judge Harkins denied defendant’s motion to dis-

miss in Juda I on October 5, 1984. Id. at 458. The court

held, regarding counts 2 and 3, that “[s]ome of the

claims clearly involve transactions that occurred after

March 16, 1975... Plaintifis are not barred by limita-

tions from an offer of proof as to the origin, nature, and

content of the alleged implied-in-fact contract and fidu-

ciary relationship, if any, with respect to these claims.”

Id. at 451. Regarding count 1, the court found that,

“Congress has acted with respect to these plaintiffs and

their rights.” Jd. at 458. The court concluded that “{aJll

of the restraints of the Bill of Rights are applicable to

the United States wherever it has acted” and denied

defendant’s motion to dismiss for failure to state a

claim. Id.

Juda “include[d] as plaintiffs the 1,004 members of

the Bikini community as of May 1, 1981, and is con-

cerned with the claims of the inhabitants of Bikini

atoll.” Juda I at 446. The plaintiffs in Juda alleged

three causes of action:

(1) an unlawful taking of Bikini Atoll from

March 7, 1946, to January 24, 1979; (2) an

unlawful taking that began on January 24, 1979,

and would continue for the next 20 to 60 years;

and (8) breaches of fiduciary responsibilities

imposed in 1946, which do not depend upon the

Trusteeship Agreement, but are claimed to

arise from a contract implied-in-fact that obli-

gates defendant to protect the health, well be-

ing and economic condition of the Bikini people.

Id. at 449.

Judge Harkins denied defendant’s motion to dis-

miss on October 5, 1984. Id. at 458. The court held, re-

garding counts 2 and 3, that “[slome of the claims

clearly involve transactions that occurred after March

16, 1975.... Plaintiffs are not barred by limitations from

an offer of proof as to the origin, nature, and content of

the alleged implied-in-fact contract and fiduciary rela-

tionship, if any, with respect to these claims.” Id. at

451. Regarding count 1, the court ruled that “Congress

has acted with respect to these plaintiffs and their

rights.” Jd. at 458. The court concluded that “[alll of

the restraints of the Bill of Rights are applicable to the

United States wherever it has acted” and denied de-

fendant’s motion to dismiss for failure to state a claim.

Id.

30a

Ill. The Compact, the Section 177 Agreement, and the

Nuclear Claims Tribunal

This section restates, with minor modifications,

portions of the discussion in Juda v. [799] United

States, 18 Cl. Ct. 667, 671-77 (1987) (dismissing com-

plaint based on withdrawal of jurisdiction) (“Juda IT’).

From the war-time occupation of Micronesia in 1944 to

approval of the Trust Territory Agreement on July 18,

1947, United States military authorities controlled the

Pacific Islands. In 1947 military government was ter-

minated, and administration of the Trust Territory was

delegated to the Secretary of the Navy. Some ele-

ments of the takings claims and breach of contract

claims in Juda and Peter occurred during this period.

At the end of World War II, little doubt existed

that Micronesia would remain under United States con-

trol Whether to annex the area or to place it under the

trusteeship system of the United Nations was debated

vigorously. Military leaders and the Secretary of War

urged outright annexation for strategic reasons. The

Secretary of State, on the other hand, urged that Mi-

cronesia be made a trusteeship in order to implement

the principle of no territorial aggrandizement that had

been expressed in the Atlantic Charter and the Cairo

Declaration. Disagreement within the United States

Government was not resolved until structures were

developed in the United Nations relationship that as-

sured the United States would have full control and full

strategic rights in the area. These concerns resulted in

a procedure that provided two categories of trustee-

ship: (1) non-strategic trust areas, overseen by the

General Assembly and the United Nations Trusteeship

Council (the “UNTC”), and (2) territories designated as

strategic trust areas, overseen by the Security Council

and the UNTC. See generally “Foreign Relations of

3la

the United States, Diplomatic Papers: Conferences at

Malta and Yalta 1945,” at 92 (1955); R. Russell & J.

Muther, A History of the United Nations Charter, 578

(1958).

Eleven trusteeship agreements were approved un-

der the United Nations Charter; ten were for non-

strategic trusts, and one, the Trusteeship Agreement

for the Pacific Islands, was designated as a strategic

trust. The Trusteeship Agreement represents the only

instance where the United States has assumed respon-

sibility for administering a foreign territory under the

authority of an international organization.

The United Nations Charter, in Articles 75 through

85, provides for the international trusteeship system.

Article 76(b) is a recognition of the principle that an

administering authority is accountable to the interna-

tional community for administration of the trust area.

It obligates the administering authority to promote the

political advancement of the inhabitants of the trust

territories and their progressive development towards

self-government or independence. Article 83 provides

that the Security Council would exercise all functions of

the United Nations relating to strategic areas. The

Charter, however, does not authorize specifically the

Security Council to approve the termination of a stra-

tegic trusteeship agreement. Article 83 provides:

1. All functions of the United Nations relating

to strategic areas, including the approval of the

terms of the trusteeship agreements and of

their alteration or amendment, shall be exer-

cised by the Security Council.

2. The basic objectives set forth in Article 76

shall be applicable to the people of each strate-

gic area.

32a

3. The Security Council shall, subject to the

provisions of the trusteeship agreements and

without prejudice to security considerations,

avail itself of the assistance of the Trusteeship

Council to perform those functions of the

United Nations under the trusteeship system

relating to political, economic, social, and edu-

cational matters in the strategic areas.

The Trusteeship Agreement is a treaty in the na-

ture of a bilateral contract between the Security Coun-

cil and the United States. Article 6 of the Trusteeship

Agreement obligates the United States, in the dis-

charge of its obligations under Article 76(b) of the

Charter, to foster the development of such political in-

stitutions as are suited to the trust territory and to

promote the development of the inhabitants towards

self-government or independence, as may be appropri-

ate to the particular circumstances of the territcry and

its peoples. The United States agreed to give the in-

habitants of the Trust Territory a [800] progressively

increasing share in the administrative services in the

territory and to develop their participation in govern-

ment.

Article 15 of the Trusteeship Agreement provides:

“The terms of the present agreement shall not be al-

tered, amended or terminated without the consent of

the administering authority.” During the negotiations

leading to the agreement, the representative of the So-

viet Union objected to this provision and proposed lan-

guage that would have permitted the Security Council

unilaterally to alter, amend, or terminate the Agree-

ment. The United States representative refused to

agree to the provision that would give the Security

Council such power, and, in order to protect United

States strategic interests, he insisted that no termina-

338

tion could occur without the consent of the United

States.

During the 1960s, in administering the Trusteeship

Agreement, the United States initiated efforts to pre-

pare the people for the transition to constitutional self-

government. In 1965 the Congress of Micronesia was

created, and elected leaders from all parts of the Trust

Territory met to discuss common problems and to ex-

plore the concept of political unity. Initially, the United

States encouraged, and the Trust Territory leaders ex-

plored, the possibility of commonwealth status for the

various island groups. This proposal was not accepted

generally. Further, differences in geography, history,

and culture made it difficult to create a single govern-

mental unit that included all of the inhabitants of the

Trust Territory. Four separate political entities ulti-

mately were established.

On March 24, 1976, the United States approved the

“Covenant To Establish a Commonwealth of the

Northern Mariana Islands in Political Union with the

United States of America.” Pub. L. No. 94-241, 90 Stat.

263 (1976) (codified as amended at 48 U.S.C. § 1681

(1982)). The constitution for the Federated States of

Micronesia (the “FSM”) was ratified on July 12, 1978.

The Republic of the Marshall Islands (the “RMI”) ap-

proved its constitution in a referendum on March 1,

1979, and inaugurated a parliamentary constitutional

government on May 1, 1979. The constitution for the

Republic of Palau was approved at a United Nations-

observed referendum on July 9, 1979. The Palau legis-

lature subsequently voided the results of this referen-

dum, and a second referendum was scheduled. The con-

stitution was defeated in a referendum held October 23,

.1979. In April 1980 the High Commissioner approved a

Palau public law that provided a timetable for the in-

34a

stallation of a government under the original constitu-

tion. Under the terms of the bill, the Palau constitution

took effect on January 1, 1981.

After July 1, 1962, the Secretary of the Interior had

exercised all necessary powers of civil government

provided by the Trusteeship Agreement. On April 25,

1979, the Secretary recognized the new governmental

entities of the Federated States of Micronesia, the

Marshall Islands, and Palau and delegated to each the

executive, legislative, and judicial functions of the gov-

ernment of the Trust Territory of the Pacific Islands.

Secretary Order No. 3039, Apr. 25, 1979. Order No.

3039 provided that the High Commissioner shall con-

tinue to exercise all authority necessary to carry out

United States’ obligations under the 1947 Trusteeship

Agreement. This retained authority specifically listed

eight categories of administrative functions, including

Budget, Accounting, Relations with other United

States Government. Agencies, and Foreign Govern-

ments. All laws of the three governmental units were

required to be submitted to the High Commissioner for

approval.

A Compact of Free Association was negotiated

with each of the individual states. The governments of

the United States and the Marshall Islands and the

governments of the United States and the Federated

States of Micronesia initialed the Compact of Free As-

sociation on October 31, 1980. The Compact of Free

Association with the government of Palau was initialed

on November 17, 1980. Further reviews followed, and

the final version of the Compact of Free Association

with the Republic of Palau was signed on August 26,

1982, and with the Federated States of Micronesia, on

October 1, 1982. The United States and the RMI

signed the Compact and its related agreements on June

25, 1983.

[801] After execution by the signatory govern-

ments, the Compacts of Free Association were pre-

sented to the people in plebiscites monitored by inter-

national observers from the United Nations Trustee-

ship Council. The Federated States of Micronesia

plebiscite was held in June 1983, and the Compact was

approved by seventy-nine percent. The RMI plebiscite

was held in September 1983, and the Compact was ap-

proved by fifty-eight percent. In Palau plebiscites

were held on February 10, 1983, and on modified ver-

sions on September 4, 1984, and February 1, 1986. On

February 24, 1986, the President of the Republic of Pa-

lau certified to the United States that the Compact of

Free Association had been approved.

The Compact was submitted to Congress on March

30, 1984. Action on the legislation was not completed in

the 98th Congress, and the Compact was resubmitted

to the 99th Congress on February 20, 1985. Hearings

were held in each body, and each passed differing ver-

sions. The legislation was not referred to a conference

committee; differences were resolved in meetings be-

tween representatives from each body and from the

Administration. The final version, House Joint Resolu-

tion No. 187, was presented without a Conference Re-

port; it was approved by the House of Representatives

on December 11, 1985, and by the Senate on December

13, 1985. It was signed by the President on January 14,

1986. Pub. L. No. 99-239, 99 Stat. 1770 (1986). By its

terms (Section 471(c)), the Compact has the force and

effect of a statute under the laws of the United States.

The legislation that approves the Compact of Free

Association with the RMI and the FSM bears the title

36a

“Compact of Free Association Act of 1985” (the “Com-

pact Act”). It contains Titles I through V. Title I in-

cludes provisions that relate to approval of the Com-

pact; interpretation of, and United States policies re-

garding, the Compact; and supplemental previsions.

Title II contains the terms of the Compact of Free As-

sociation as signed by the parties and approved in the

plebiscites. Compact Titles III, IV, and V relate to Pa-

cific policy reports, clarification of certain trade and tax

provisions, and the Compact with the Republic of Pa-

lau.

A number of provisions relate to the effective date

of the Compact. Section 101(b) of the Compact Act pro-

vides:

(b) MARSHALL ISLANDS.—The Compact

of Free Association set forth in title II of this

joint resolution between the United States and

the Government of the Marshall Islands is

hereby approved, and Congress hereby con-

sents to the subsidiary agreements as set forth

on pages 115 through 391 of House Document

98-192 of March 30, 1984, as they relate to such

Government. Subject to the provisions of this

joint resolution, the President is authorized to

agree, in accordance with section 411 of the

Compact, to an effective date for and thereafter

to implement such Compact, having taken into

account any procedures with respect to the

United Nations for termination of the Trustee-

ship Agreement.

Section 411 of the Compact provides:

This Compact shall come into effect upon mu-

tual agreement between the Government of the

United States, acting in fulfillment of its re-

37a

sponsibilities as Administering Authority of

the Trust Territory of the Pacific Islands, and

the Government of the Marshall Islands or the

Federated States of Micronesia and subsequent

to the completion of the following:

(a) Approval by the Government of the Mar-

shall Islands or the Federated States of Micro-

nesia in accordance with its constitutional proc-

esses.

(b) Conduct of the plebiscite referred to in

Section 412.

States in accordance with its constitutional

processes.

Section 171 of the Compact suspends the laws of

the United States to the Trust Territory on the effec-

tive date. Section 171 provides:

Except as provided in this Compact or its re-

lated agreements, the application of the laws of

the United States to the Trust Territery of the

Pacific Islands by virtue of the Trusteeship

Agreement ceases with re-(802]spect to the

Marshall Islands and the Federated States of

Micronesia as of the effective date of this Com-

pact.

Section 127 of the Compact provides:

Except as otherwise provided in this Compact

or its related agreements, all obligations, re-

sponsibilities, rights and benefits of the Gov-

ernment of the United States as Administering

Authority which have resulted f-om the appli-

cation pursuant to the Trusteeship Agreement

of any. treaty or other international agreement

38a

to the Trust Territory of the Pacific Islands on

the day preceding the effective date of this

Compact are no longer assumed and enjoyed by

the Government of the United States.

Section 177 of the Compact provides a procedure

for the disposition of claims that have resulted from the

Nuclear Testing Program. A separate agreement be-

tween the United States and the RMI is authorized to

provide for the settlement of all such claims (the “Sec-

tion 177 Agreement”). Section 177 provides that “[tJhis

separate agreement shall come into effect simultane-

ously with this Compact and shall remain in effect in

accordance with its terms.” Article XIII, section 1 of

the Section 177 Agreement provides: “This Agreement

shall come into effect simultaneously with the Compact

in accordance with Section 177 of the Compact.”

Section 177 of the Compact provides:

(a) The Government of the United States ac-

cepts the responsibility for compensation owing

to citizens of the Marshall Islands, or the Fed-

erated States of Micronesia (or Palau) for loss

or damage to property and person of the citi-

zens 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 Mar-

shall Islands between June 30, 1946, and Au-

gust 18, 1958.

(b) The Government of the United States and

the Government of the Marshall Islands shall

set forth in a separate agreement provisions for

the just and adequate settlement of all such

claims which have arisen in regard to the Mar-

shall Islands and its citizens and which have not

39a

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 monitor-

ing activities and for such additional programs

and activities as may be mutually agreed, and

for the assumption by the Government of the

Marshall Islands of responsibility for enforce-

ment of limitations on the utilization of affected

areas developed in cooperation with the Gov-

ernment of the United States and for the assis-

tance by the Government of the United States

in the exercise of such responsibility as may be

mutually agreed. This separate agreement

shall come into effect simultaneously with this

Compact and shall remain in effect in accor-

dance with its own terms.

provide to the Government of the Marshall Is-

lands, on a grant basis, the amount of $150 mil-

lion to be paid and distributed in accordance

with the separate agreement referred to in this

Section, and shall provide the services and pro-

grams set forth in this separate agreement, the

language of which is incorporated into this

Compact.

The Compact Act approves Compact Section 177

and, by reference, specifically incorporates the provi-

sions of the Section 177 Agreement into the Compact

Act. Section 103(g) of the Compact Act provides:

(g) ESPOUSAL PROVISIONS.—{]1) It is the

intention of the Congress of the United States

that the provisions of section 177 of the Com-

40a

pact of Free Association and the Agreement

between the Government of the United States

and the Government of the Marshall Islands for

the Implementation of Section 177 of the Com-

pact (hereafter in this subsection referred to as

the “Section 177 Agreement”) constitute a full

and final settlement of all claims described in

Articles X and XI of the Section 177 Agree-

ment, 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 [803] subsec-

tion, the Section 177 Agreement is hereby rati-

fied and approved. It is the explicit under-

standing and intent of Congress that the juris-

dictional 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 con-

strued or implemented separately from Article

The Section 177 Agreement provides for the estab-

lishment and operation by the RMI of a Claims Tribu-

nal (the “Claims Tribunal”). The Claims Tribunal was

given “jurisdiction to render final determination upon

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

citizens and nationals of the Marshall Islands which are

based on, arise out of, or are in any way related to the

Nuclear Testing Program....” Article IV, section 1(a)

of the Section 177 Agreement includes the following

limitation: “This section confers in the Claims Tribunal

no jurisdiction over the United States, its agents, em-

ployees, contractors, citizens or nationals with respect

Ala

to claims of the Government, citizens or nationals of the

Marshall Islands arising out of the Nuclear Testing

Program.”

Article X, Section 1 of the Section 177 Agreement

provides:

Section 1—F ull Settlement of All Claims

This Agreement constitutes the full settlement

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

Government, citizens and nationals of the Mar-

shall 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, its agents, employees, contractors and

citizens and nationals, and of all claims for equi-

table 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, in-

cluding the courts of the Marshall Islands and

the courts of the United States and its political

subdivisions.

Article XII of the Section 177 Agreement provides:

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.

On May 28, 1986, the UNTC, in Resolution No.

2183, reaffirmed that the peoples of the Northern

Mariana Islands, the RMI, the FSM, and Palau had

“freely exercised their right to self-determination in

plebiscites observed by visiting missions of the Trus-

42a

teeship Council.” The UNTC determined that the

United States as the Administering Authority “has sat-

isfactorily discharged its obligations under the terms of

the Trusteeship Agreement and that it is appropriate

for that Agreement to be terminated.” The UNTC re-

quested that the United States, in consultation with the

respective governments, to agree on a date no later

than September 30, 1986, for the full entry into force of

the Compact of Free Association and the Common-

wealth Covenant and to inform the Secretary General

of the United Nations of that date. The official records

of the UNSC for the period ending June 30, 1986, show

that UNTC Resolution No. 2183 was reported to the

Security Council.

Between May and October 1986, representatives of

the United States and representatives of the RMI ne-

gotiated to establish an effective date for the Compact.

On October 10, 1986, the parties executed an agree-

ment providing, pursuant to Section 411 of the Com-

pact, that the effective date of the Compact would be

October 21, 1986.

On October 16, 1986, the President issued Execu-

tive Order No. 12,569 to provide for changes in the re-

sponsibilities of United States officials when the Com-

pact became effective. The Secretary of State was

made responsible for conducting government-to-

government relations with the RMI, the FSM, and the

Republic of Palau. The responsibilities of the Secretary

of the Interior were redefined to include:

Sec.2 Responsibility of the Secretary of the

Interior. The Secretary of the Interior shall be

responsible for seeking the appropriation of

funds for and, in accordance with the laws of

the United States, [804] shall make available to

43a

the Freely Associated States the United States

economic and financial assistance appropriated

pursuant to Article I of Title Two of the Com-

pact; the grant, service, and program assis-

tance appropriated pursuant to Article IT of Ti-

tle Two of the Compact; and all other United

States assistance appropriated pursuant to the

Compact and its related agreements. The Sec-

retary shall coordinate and monitor any pro-

gram or any activity by any department or

agency of the United States provided to the

Freely Associated States and shall coordinate

and monitor related economic development

planning. This Section shall not apply to ser-

vices provided by the Department of Defense

to the Freely Associated States or to activities

pursuant to Section 1 of this Order, including

activities under the Peace Corps Act.

Section 8, Supersession and Savings Provisions, of —

the Executive Order provides:

(a) Subject to the provisions of Section 9 of

this Order, prior Executive orders concerning

the former Trust Territory of the Pacific Is-

lands are hereby superseded and rendered in-

applicable, except that the authority of the Sec-

retary of the Interior as provided in applicable

provisions of Executive Order No. 11021, as

amended, shall remain in effect, in a manner

consistent with this Order and pursuant to sec-

tion 105(c)(2) of the Act, to terminate the trust

territory government and discharge its respon-

sibilities, at which time the entirety of Execu-

tive Order No. 11021 shall be superseded.

44a

(b) Nothing in this Order shall be construed as

modifying the rights or obligations of the

United States under the provisions of the

Compact or as affecting or modifying the re-

sponsibility of the Secretary of State and the

Attorney General to interpret the rights and

obligations of the United States arising out of

or concerning the Compact.

By letter dated October 23, 1986, the United States

Permanent Representative to the United Nations noti-

fied the Secretary General of the United Nations that,

as a consequence of consultations held between the

United States Government and the Government of the

RMI, “agreement has been reached that October 21,

1986, is the date upon which the Compact of Free Asso-

ciation with the Marshall Islands enters fully into

force.”

On November 3, 1986, the President announced in

Proclamation No. 5564 that, as of that date, the United

States “has fulfilled its obligations under the Trustee-

ship Agreement with respect to the Commonwealth of

the Northern Mariana Islands, the Republic of the

Marshall Islands, and the Federated States of Microne-

sia, and they are self-governing and no longer subject

to the Trusteeship.” Proclamation No. 5564 further

provided:

Section 1. I determine that the Trusteeship

Agreement for the Pacific Islands is no longer

in effect as of October 21, 1986, with respect to

the Republic of the Marshall Islands, as of No-

vember 3, 1986, with respect to the Federated

States of Micronesia, and as of November 3,

1986, with respect to the Northern Mariana Is-

45a

lands. This constitutes the determination re-

ferred to in Section 1002 of the Covenant.

In keeping with its decision that the RMI was a

sovereign self-governing state, on April 22, 1987, the

President’s nomination of the United States diplomatic

representative to the Marshall Islands was announced;

on May 4, 1987, the Government of the RMI was noti-

fied formally that the general relations between the

two governments would be governed by international

law, as reflected in the Vienna Convention on Diplo-

matic Relations and that the RMI representatives

would be accorded status commensurate with the heads

of diplomatic missions, as this expression is used in the

Convention. On June 3, 1987, the United States Senate

gave its consent to appointment of the President’s

nominee.

IV. Juda II, Peter II, Nitol II, and People of Enewetak

On March 4, 1986, defendant filed motions to dis-

miss in Juda, Nitol, and Peter characterizing the claims

as posing a non-justiciable political question after the

passage of the [805] Compact and the execution of the

Section 177 Agreement. See Juda v. United States, 13

Cl. Ct. 667, 669 (1987) (“Juda II”). On November 4,

1986, defendant filed amended motions to dismiss add-

ing as a ground the lack of subject matter jurisdiction

due to the effect of the withdrawal of jurisdiction con-

tained in the Section 177 Agreement. Jd. at 670.

On November 10, 1987, Judge Harkins dismissed

the surviving claims in Juda for lack of subject matter

jurisdiction, issuing dismissals of the Peter and Nitol

cases on the same date that relied on the same ration-

ale. See Juda II at 690 (“The consent of the United

States to be sued in the Claims Court on plaintiffs’ tak-

46a

ing claims and breach of contract claims that arise from

the United States’ nuclear testing program in the Mar-

shall Islands has been withdrawn.”); see also Peter v.

United States, 13 Cl. Ct. 691, 692 (1987) (“The with-

drawal by the United States of its consent to be sued,

as set forth in the memorandum of decision in the Juda

case, applies to plaintiffs’ remaining claims in this

case.”) (“Peter IT’); Nitol v. United States, 13 Cl. Ct.

690, 691 (1987) (“Nitol IT’) (same as Peter II). The

court found that “the Compact of Free Association, the

Section 177 Agreement, and Articles X, XI, and XII of

that agreement, went into effect on October 21, 1986.”

Juda IT at 682-83. The court found that “(t]he RMI and

the United States unquestionably intended that the

Section 177 Agreement would be a complete settlement

of all claims arising from the nuclear testing program.”

Id. at 684. Concluding that the Section 177 Agreement

and the Compact validly withdrew consent to sue the

United States in the Claims Court, the court dismissed

plaintiffs’ claims. Id. at 690. Nevertheless, Judge Har-

kins stated that it was “premature” for the court to

hear plaintiffs’ objections to the adequacy of the com-

pensation:

Whether the compensation, in the alternative

procedures provided by Congress in the Com-

pact Act, is adequate is dependent upon the

amount and type of compensation that ulti-

mately is provided through these procedures.

Congress has recognized and protected plain-

tiffs’ rights to just compensation for takings

and for breach of contract. The settlement pro-

cedure, as effectuated through the Section 177

Agreement, provides a “reasonable” and “cer-

tain” means for obtaining compensation.

Whether the settlement provides “adequate”

Ava

compensation cannot be determined at this

time.

.... This alternative procedure for compen-

sation cannot be challenged judicially until it

has run its course.

Id. at 689.

The Federal Circuit consolidated the appeals of the

Claims Court in Peter II, Juda II, and Nitol II in Peo-

ple of Enewetak v. United States, 864 F.2d 134 (Fed.

Cir. 1988). The appeal of Juda IJ was dismissed with

prejudice “upon the unopposed motion of claimants, fol-

lowing the enactment of special legislation which ap-

propriated funds for the benefit of the People of Bi-

kini.” People of Enewetak, 864 F.2d at 135 n.1; see Peo-

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

1988) (order dismissing case).

The settlement in People of Bikini was signed into

law on September 27, 1988, and provided:

That in full satisfaction of the obligation of the

United States to provide funds to assist in the

resettlement and rehabilitation of Bikini Atoll

by the People of Bikini, to which the full faith

and credit of the United States is pledged pur-

suant to section 103(1) of Public Law 99-239, the

United States shall deposit $90,000,000 into the

Resettlement Trust Fund for the People of Bi-

kini established pursuant to Public Law 97-257,

and governed pursuant to the terms of such

trust instrument, such deposit to be install-

ments of $5,000,000 on October 1, 1988;

$22,000,000 on October 1, 1989; $21,000,000 on

October 1, 1990; $21,000,000 on October 1, 1991;

48a

and $21,000,000 on October 1, 1992: Provided

further, That the terms of such Resettlement

Trust Fund are hereby modified to provide

that corpus and income may be expended for

rehabilitation and resettlement of Bikini Atoll,

except that the Secretary may approve expen-

ditures not to exceed $2,000,000 in any year

from income [806] for projects on Kili or Bjit:

Provided further, That one year prior to com-

pletion of the rehabilitation and resettlement

program, the Secretary of the Interior shall re-

port to Congress on future funding needs on

Bikini Atoll. Unless otherwise determined by

Congress, following completion of the rehabili-

tation and resettlement program, funds re-

maining in the Resettlement Trust Fund in ex-

cess of the amount identified by the Secretary

as required for future funding needs shall be

deposited in the United States Treasury as

miscellaneous receipts. Upon completion of

those needs, the Resettlement Trust Fund

shall be extinguished and all remaining funds

shall be deposited in the United States Treas-

ury as miscellaneous receipts. The payment

and use of funds in accordance herewith is for

the sole purpose of implementing and fulfilling

the terms of the Section 177 Agreement re-

ferred to in section 462(d) of the Compact of

Free Association between the United States

and the Republic of the Marshall Islands, in-

cluding Article VI, section 1, and Articles X

and XII, thereof. Payments pursuant hereto

shall be made only upon: One, voluntary dis-

missal with prejudice of Juda et al. v. the

United States, No. 88-1206 (Fed. Cir.); and two,

49a

submission of written notice to the United

States and the Republic of the Marshall Is-

lands, executed by duly-authorized representa-

tives acting on their behalf, that the People of

Bikini accept the obligations and undertaking

of the United States to make the payments

prescribed by this Act, together with the other

payments, rights, entitlements and benefits

provided for under the Section 177 Agreement,

as full satisfaction of all claims of the People of

Bikini related in any way to the United States

nuclear testing program in accordance with the

terms of the Section 177 Agreement.

Pub. L. No. 100-446, 102 Stat. 1774, 1798 (1988).

The Federal Circuit affirmed the decisions of the

Claims Court in Peter II and Nitol IT, holding:

The [Compact] Act and the section 177 Agree-

ment, provide, in perpetuity, a means to ad-

dress past, present and future consequences,

including the resolution of individual claims,

arising from the United States nuclear testing

program in the Marshall Islands between June

30, 1946 and August 18, 1958. Congress in-

tended the alternative procedure to be utilized,

and we are unpersuaded that judicial interven-

tion is appropriate at this time on the mere

speculation that the alternative remedy may

prove to be inadequate.

People of Enewetak, 864 F.2d at 136. The court stated

that a determination of the adequacy of the alternative

procedure for compensation was not required “in ad-

vance of the exhaustion of the alternative provided”

and adopted the “(Claims Court’s] more extensive

analysis in Juda v. United States, 13 Cl. Ct. 667 (1987),

50a

relating to the issues discussed.” People of Enewetak

864 F.2d at 137.

On August 22, 1983, approximately 3,000 present

and former residents of the RMI located downwind

from the nuclear test sites filed a claim seeking dam-

ages for personal injuries and death pursuant to the

Federal Tort Claims Act, 28 U.S.C. § 2674 (2000) (the

“FTCA”). The district court held that “the RMI’s es-

pousal and settlement of the claims were not review-

able by the courts of the United States and that the

Court lacked ‘jurisdiction over plaintiffs’ claims, pursu-

ant to valid law and in conjunction with non-reviewable

foreign relations decisions.” Antolok v. United States,

873 F.2d 369, 372 (D.C. Cir. 1989) (quoting Antolok v.

United States, No. 83-2471, slip op. at 8 (D.D.C. Jun. 16,

1987)). The United States Court of Appeals for the

District of Columbia Circuit affirmed the decision of the

lower court, holding that, while “the Federal Tort

Claims Act, 28 U.S.C. § 1346(b), initially provided a

waiver of immunity for this tort action, Congress with-

drew their consent for this type of claim in ratifying the

Compact and the Section 177 Agreement....” 873 F.2d

at 374. The court compared the tort claim brought to a

potential takings claim, stating that “even if the legisla-

tion amounted to an actual taking of property ... then

the substitution of another remedy is compensation

therefor.” Jd. at 378. Nevertheless, the court noted

that, “{ilf there is an uncompensated or inade-

[807]quately compensated taking, then plaintiffs’ rem-

edy is in the Claims Court under the Tucker Act, 28

U.S.C. § 1491(a)(1), not in District Court under the

Federal Tort Claims Act.” Jd. As no valid constitu-

tional claim was before the court, it declined to review

“the difficult question of whether inferior courts may

5la

be barred by an act of Congress from review of consti-

tutional challenges to statutes.” Id. (citations omitted).

Judge Sentelle, who authored the panel’s opinion,

set forth his separate views’ with respect to the role of

the political question doctrine:

[E}ven if we err in our interpretation of [the

Compact] Act, I would not reach the merits but

would conclude that the District Court was

without jurisdiction over this matter of inter-

national relations by reason of the political

question doctrine.

..... While I do not deny that the plaintiffs

herein raise good faith objections to the deci-

sion of the Executive ..., our deferral to the po-

litical branches in political questions is not lim-

ited to those where they are correct. It would

require our invasion of their sphere for us to

make the determination that they were wrong,

and it is against that very invasion that the po-

litical question doctrine protects the political

realm from judicial invasion.

Id. at 379, 383.

Then-Chief Judge Wald’s special concurrence dis-

tinguished the takings claim raised in Antolok from the

3 Chief Judge Wald and Judge Starr did not join Judge Sen-

telle as to section II.B of the opinion in Antolok, which discusses

the political question doctrine. See Antolok, 873 F 2d at 379. Chief

Judge Wald filed a separate opinion concurring in the result to ex-

press an alternative application of the political question .doctrine.

See id. at 385 (Wald, J., concurring).

52a

takings claims raised in People of Enewetak: “Plaintiffs

responded to the government’s defense (lack of juris-

diction) by arguing that a withdrawal of jurisdiction

would constitute an uncompensated taking; the prop-

erty allegedly taken here is the plaintiffs’ cause of ac-

tion in tort.” Amntolok, 873 F.2d at 393 n.15. In con-

trast, the takings claim in People of Enewetak involved

“property allegedly taken [that included] plaintiffs’

lands, homes, and businesses.” Jd.

V. The Nuclear Claims Tribunal decisions and

Changed Circumstances Request

The Nuclear Claims Tribunal (the “NCT’”) was es-

tablished in 1987 when the Nitijela, the legislative body

of the RMI, passed the Nuclear Claims Tribunal Act.

On July 16, 1990, plaintiffs filed a class action in the

NCT seeking damages for loss of use of Enewetak

Atoll, restoration costs for cleanup of contaminated

portions of the atoll, and consequential and hardship

damages for the Enewetak people.

The NCT issue its initial decision regarding plain-

tiffs’ claim on April 13, 2000, awarding plaintiffs

$324,949,311, which included “$199,154,811 for past and

future loss of use cof Enewetak Atoll .... $91,710,000 to

restore Enewetak to a safe and productive state....

[and] $34,084,500 for the hardships suffered ....” See

PX 5 at 34. The NCT qualified its decision by stating:

This is not an eminent domain proceeding nor a

claim under ccnstitutional provisions for just

compensation for a taking of property for pub-

lic use. neither the U.S. or R.M.I. government

is a party to this action, and consequently cer.

tain elements in a determination of just com-

pensation are not present. Nonetheless, prin-

53a

ciples of just compensation, to the extent that

they aid in a determination of what is necessary

to make claimants whole, may be referenced ...

where appropriate.

PX 5 at 4. This award was the “first award for dam-

ages to property” made by the NCT. /d. at 33. The

NCT’s award considered various factors, including de-

ductions from the gross award for amounts already re-

ceived through the Compact and the Section 177

Agreement. Restoration costs were awarded for the

following purposes: $22.5 million for removal and re-

placement of contaminated soil; $31.5 million for con-

struction of a causeway for disposal of the contami-

nated soil; $15.5 million for potassium treatment to

block radioactive Cesium 137 uptake from locally grown

foods; $17.7 million for soil rehabilitation and revegeta-

tion; $10 million [808] for plutonium cleanup on Runit

Island; and $4.51 million for characterization surveys of

the contaminated soil. The NCT deducted $10 million

from the total restoration award, equivalent to the

value of the Enjebi Trust Fund, which was established

by the Compact of Free Association for restoration of

portions of Enewetak, thereby yielding a net award of

$91,710,000 for restoration. PX 5 at 28. Past and future

loss amounts were computed based on annual rental

values for the land occupied by the United States,

which resulted in a gross award of $304,000,000 for past

loss use.

The NCT amended its decision on May 5, 2000, in-

cluding “an additional $16.1 million as the cost to re-

store the soil and revegetate the 558 acres subject to

soil removal as part of the radiological cleanup.” PX 6

at 2. The NCT again amended its decision on August 3,

2000, revising the amount of damages for loss of future

use to $47,001,908 and supplementing this amount with

54a

prejudgment interest in the amount of $47,681,122. PX

7 at 5. In addition, the NCT revised its award to plain-

tiffs to include “interest in the amount of 7% per year

... on the loss of use damages of $244,000,000 and resto-

ration damages of $107,810,000.” PX 7 at 5.

The NCT issued its decision regarding the claims of

the inhabitants of Bikini Atoll on March 5, 2001. The

NCT determined that the People of Bikini were enti-

tled to a total of $563,315,500: $278,000,000 for past and

future loss of use; $251,500,000 for restoration costs;

and $33,815,500 for hardships suffered.

Thus, the total amounts awarded to the Enewetak

people and the People of Bikini by the NCT include the

following components:

Enewetak people:

Loss of use: $244,000,000 + 7% interest

Restoration: $107,810,000 + 7% interest

Hardship: $ 34,084,500 ee

TOTAL: $385,894,500 + interest

People of Bikini:

Loss of use: $278,000,000 + 7% interest

Restoration: $251,500,000 + 7% interest.

Hardship: _$ 33,815,500 02

TOTAL: $563,315,500 + interest

In February 2002 the NCT made a payment of

$1,078,750 to the Enewetak people and $1,491,809 to

the People of Bikini, amounts which constituted 0.25%

of their respective awards. In February 2003 the NCT

made another partial payment of 0.125% of the total

awarded amount, giving $568,733 to the Enewetak peo-

55a

ple and $787,370 to the People of Bikini. Since Febru-

ary 2003, the NCT has not rendered any further pay-

ments to either the Enewetak people or the People of

Bikini. The NCT has exhausted the $45.75 million allo-

cated in the Section 177 Agreement with respect to

payments for personal injury awards that exceed $80

million. The $150-million trust fund established has

been reduced to a current balance of less than $1.8 mil-

lion.

In 2002 the RMI retained former United States At-

torney General Richard Thornburgh to undertake an

independent examination of the NCT’s processes in re-

sponse to concerns raised by the United States Gov-

ernment regarding the transparency of the NCT’s op-

erations. Mr. Thornburgh issued a report in January

2003 (the “Thornburgh Report”) concluding “that the

NCT fulfilled the task for which it was created in a rea-

sonable, fair and orderly manner, and with adequate

independence.” Am. Compl. 4 153. The Thornburgh

Report stated that “(i]t is our judgment that the $150

million trust fund initially established in 1986 is mani-

festly inadequate to fairly compensate the inhabitants

of the Marshall Islands for the damages they suffered

as a result of the dozens of U.S. nuclear tests that took

place in their homeland.” Am. Compl. 4 154 (quoting

Thornburgh Report).

Article IX of the Section 177 Agreement (the

“Changed Circumstances provision”) provides:

If loss or damage to property and person of

the citizens of the Marshall Islands, resulting

from the Nuclear Testing Program, arises or is

discovered after the effective date of this

Agreement, and such injuries were not and

could not reasonably [809] have been identified

56a

as of the effective date of this Agreement, and

if such injuries render the provisions of this

Agreement manifestly inadequate, the Gov-

ernment of the Marshall Islands may request

that the Government of the United States pro-

vide for such injuries by submitting such a re-

quest to the Congress of the United States for

its consideration. It is understood that this Ar-

ticle does not commit the Congress of the

United States to authorize and appropriate

funds.

Pursuant to Article IX, entitled “Changed Circum-

stances,” the RMI presented a “Petition Presented to

the Congress of the United States of America Regard-

ing Changed Circumstances Arising from U.S. Nuclear

Testing in the Marshall Islands” (the “Changed Cir-

cumstances Request”) on September 11, 2000. Am.

Compl. { 163. The Changed Circumstances Request

was resubmitted to Congress on November 14, 2001.

The Senate Energy and Natural Resources Com-

mittee and the House Resources Committee requested

that an interagency group evaluate the Changed Cir-

cumstances Request. On January 4, 2005, the United

States Department of State submitted the “Report

Evaluating the Request of the Government of the Re-

public of the Marshall Islands Presented to the Con-

gress of the United States of America” to Senator Jeff

Bingaman of New Mexico. The report stated that the

Changed Circumstances Request did not satisfy the re-

quirements contained in Article [X of the Section 177

Agreement and therefore concluded that no legal basis

for additional payments was raised in the Changed Cir-

cumstances Request. On July 19, 2005, the House

Committee on Resources and the House Committee on

International Relations Subcommittee on Asia and the

57a

Pacific held a joint hearing regarding the RMI and the

Changed Circumstances Request. The court has not

been made aware of any action by Congress since that

date.

DISCUSSION

Defendant has moved pursuant to RCFC 12(b)(1)

and 12(b)(6) for dismissal of plaintiffs’ Amended Com-

plaint for lack of subject matter jurisdiction, or, alter-

natively, for failure to state a claim upon which relief

can be granted. The former ground implicates the

statute of limitations and withdrawal of jurisdiction in

the courts; the latter, the doctrine of res judicata.

I_ Statute of limitations

Jurisdiction must be established before the court

may proceed to the merits of a case. Steel Co. v. Citt-

zens for a Better Env't, 523 U.S. 83, 88-89 (1998). Any

party may challenge, or the court may raise sua sponte,

subject matter jurisdiction at any point in a proceeding,

even upon appeal. Arbaugh v. Y&H Corp., 546 US.

500, 506 (2006). If the jurisdictional facts alleged in the

complaint are disputed, “the ... court may consider

relevant evidence in order to resolve the factual dis-

pute.” Reynolds v. Army and Air Force Exch. Serv.,

846 F.2d 746, 747 (Fed. Cir. 1988); Moyer v. United

States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) (holding

that “(fact-finding is proper when considering a motion

to dismiss where the jurisdictional facts in the com-

plaint ... are challenged”); see also Cedars-Sinai Med.

Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993)

(permitting review of evidence extrinsic to pleadings,

including affidavits and deposition testimony). Once

the court’s subject matter jurisdiction is put to ques-

tion, it is “incumbent upon [plaintiff] to come forward

08a

with evidence establishing the court’s jurisdiction. We

agree that [plaintiff] bears the burden of establishing

subject matter jurisdiction by a preponderance of the

evidence.” Reynolds, 846 F.2d at 748; McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 189 (1936)

(holding that, “li}f [plaintiffs] allegations of jurisdic-

tional facts are challenged by his adversary in any ap-

propriate manner, he must support them by competent

proof’).

The statute of limitations set forth in the Tucker

Act requires that “[e]very claim of which the United

States Court of Federal Claims has jurisdiction shall be

barred unless the petition thereon is filed within six

years after such claim first accrues.” 28 U.S.C. § 2501

(2000). The six-year statute of limitations “set forth in

§ 2501 [of Title 28] is a [810] jurisdictional require-

ment.” Bianchi v. United States, 475 F.3d 1268, 1274

(Fed. Cir. 2007); John R. Sand & Gravel v. United

States, 457 F.3d 1345, 1354 (Fed. Cir. 2006), cert.

granted, 127 S.Ct. 2877 (2007) (No. 06-1164, 2007 Term)

(“The six-year statute of limitations set forth in section

2501 is a jurisdictional requirement for a suit in the

Court of Federal Claims.”); Martinez v. United Siates,

333 F.3d 1295, 1316 (Fed. Cir. 2003) (en banc) (“It is

well established that statutes of limitations for causes

of action against the United States, being conditions on

the waiver of sovereign immun

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