Petition for Writ of Certiorari — Bikini v. United States, 130 S. Ct. 2340 (2010) (No. 09-499)

Supreme Court brief2010

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

| eat he

No. 09 _ 09-499 OCT 28 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

PEOPLE OF BIKINI, BY AND THROUGH THE

KILI/BIKINI/EJIT LOCAL AND GOVERNMENT COUNCIL,

Petitioners,

Vv.

UNITED STATES OF AMERICA.

On Petition for a Writ of Certiorart

to the United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Jonathan M. Weisgall Patricia A. Millett

JONATHAN M. WEISGALL Counsel of Record

CHARTERED Robert K. Huffman

1200 New Hampshire Duncan N. Stevens

Ave., NW Monica P. Sekhon

Suite 3000 AKIN, GUMP, STRAUSS,

Washington, DC 20036 HAUER & FELD LLP

(202) 828-1378 1333 New Hampshire

Ave., NW

Washington, DC 20036

(202) 887-4000

Witson-Epres Prawns Co., Inc. — (202)788-0096 — WAstanGcTON, D.C. 20002

QUESTIONS PRESENTED

Between 1946 and 1958, the United States’

nuclear testing program irradiated and partially

vaporized the Bikini Atoll while the Atoll was under

United States trusteeship and its people were U.S.

dependents. In 1986, Congress created a Nuclear

Claims Tribunal to adjudicate the Bikinians’ Fifth

Amendment Just Compensation Clause claims

against the United States for the taking of

their land, and correspondingly withdrew Tucker Act

jurisdiction to adjudicate those claims. After the

people of Bikini exhausted the Tribunal process, the

Tribunal proved incapable of paying even 1% of the

compensation owed.

The questions presented are:

1. Whether a statute withdrawing Tucker Act

jurisdiction over Just Compensation Clause claims in

favor of a newly created administrative process

unambiguously expressed congressional! intent to bar

judicial review of those claims and subsequently

arising claims after that administrative process

failed to provide just compensation and became non-

functional.

2. Whether Congress can legislate or contract

itself out of its constitutional obligation to pay

citizens and territorial dependents just compensation

under the Fifth Amendment.

TABLE OF CONTENTS

QUESTIONS Pie irs rscnceschctivisecvesscesesosceceees i

TABLES OF Bis i peer e certcscsestessatvesesestsevesscosceess iv

PETITION FOR A WRIT OF CERTIORARI ............. 1

OP EEC Tae acted a dees sarinesenceicccessces 1

re eicecsciaas eRe easessnesesssecesscese 1

RELEVANT CONSTITUTIONAL AND

STAT UO TORY Fe etait cetterscsccncccsceccersccees, 1

STATEMENT OF THE CASE.....0000.........cesessccsceeeeeees 1

REASONS FOR GRANTING THE PETITION ———— 5

I. The Federal Circuit’s Decision Conflicts With

This Court’s And Other Circuits’ Precedent

Governing The Permanent Preclusion Of

Jurisdiction Over Just Compensation Claims. ..... 7

II. The Federal Circuit’s Decision Conflicts With

Decisions Of This Court And Other Circuits

Holding That The Just Compensation Clause

OR Es 15

A. The Federal Circuit’s Ruling Contravenes

This Court's Pre@tiiit, ocnccocceccossccceseccccsese 22000 16

B. The Federal Circuit’s Decision Conflicts

With The Rulings Of Other Circuits. ............. 20

CONCLUSION ccecinnctsthe enna tcssecncnescscaceceees 22

APPENDIX

United States Court of Appeals for Federal

Circuit Opieeademn, Serta eet tcttetnnicecesoesnc0.. la

United States Court of Federal Claims Opinion

and Ondiew,, SII coca ce eatin es 10a

United States Court of Appeals for the Federal

Circuit, Denial of Rehearing, 6/3/09..................... 108a

OR eT ee Se llla

19BG) ....:.ceceseocsecscsiiel a Is 0 112a

ill

NO BES siciscsscopcsesivcoaneenene 114a

IE Ne © <<, asin sacisocacccanecsaceorseonbaneane 116a

Bockians 17 F RaW sivecesevscsesccsciesisceseciocnvsnssess 117a

TABLE OF AUTHORITIES

Antolok v. United States,

873 F.2d 369 (D.C. Cir. 1989) ..................ccccceesces 13

Baltimore & Ohio R.R. Co. v. United States,

ee is ee ideicicnen ccidictdceencakastncenecnéssanses 18

Battaglia v. General Motors,

BE Fe Be ee ee BI vaiakicn cre ccccscciosecosecessce 20

Blanchette v. Connecticut General Insurance

Corps.,

ea Be Oe irik scativercsetadisoeesncaiasecs passim

Board of Comm'rs v. United States,

100 F.2d 929 (10th Cir. 1939) ..20.......... ccc cece cece 21

Conroy v. Aniskoff,

Se Sees A a oo nicnucvacusenenhenuasesiepasanammae 14

Cook County v. United States ex rel. Chandler,

ee can bepnwuinnandeknae 12

Dames & Moore v. Regan,

ee ee cnn sctnsvkccudolvnanmacsinants 10, 19

DLX, Inc. v. Kentucky,

SR Fee Ee Ce CAE: BED a ncesencesccccevccctocsseicess 21

Duarte v. United States,

532 F.2d 850 (2d Cir. 1976) ......ccccccscccccccccccccccsece 21

First English Evangelical Lutheran Church v.

County of Los Angeles,

Oe ee iirini ce tccisncncesivadnssbiasivacceses 16, 18

Glosemeyer v. Missouri-Kansas-Texas R.R.,

879 F.2d 316 (8th Cir. 1989) ............................06. 13

Harbert Int'l, Inc. v. James,

167. F.Bk TESTE CLIC Cae. LOGS onccccccccccnccccecccsecces 21

INS v. St. Cyr,

ee a as iaccnesnnseaneasevesene 10, 12

J.E.M. Ag Supply v. Pioneer Hi-Bred Int’,

ES __s 5 RRC 12

Jacobs v. United States,

Se I os ssa possccodaevaenveronsavesons 16, 18

Juda v. United States,

ETE cc ccacicnsncupeedenenuensens 3, 4,13

Juda v. United States,

I ccs cei sainngsiciianiiteianenmnensaeinees 2

Kirby Forest Industries v. United States,

oo as eoasvnss eaneuseuuaservienns 9

Kohl v. United States,

is sal aulbaeaoed 19

Mann v. Haigh,

pe ge Be | _: ; aD Ee 21

Marbury v. Madison,

hk Re ge Re yg i) |: anne 20

McKesson v. Islamic Republic of Iran,

539 F.3d 485 €D.C. -Cir.-2008) ..........ccccccccccccccocees 20

Medellin v. Texas,

Be Rs BE I ec chsccwiicnccececseneusitxscseeucecnone 19

Neely v. United States,

566 F.2d 1068 Cd Cir. 1976) .....0cccccccccocccccnsccccsees 13

Oglala Sioux Tribe v. United States,

GC Fe BR Ce Ce. BID vcveciccesicccecescvcnssnsseces. 21

People of Bikini v. United States,

Nos. 88-1206 et al. (Fed. Cir.) (June 1988)......... 17

People of Bikini v. United States,

No. 2007-5175 (Fed. Cir.) (Apr. 4, 2008)............. 17

People of Enewetak v. United States,

864 F.2d 134 (1988), cert. denied, 491 U.S.

ee ae oo cpasanedeundons 3, 4,13

Preseault v. ICC,

RS a 7, 11, 18, 15

Ruckelshaus v. Monsanto Co.,

A I csc cncesenepennpebeosnnsdseccce passim

San Diego Gas & Elec. Co. v. San Diego,

450 U.S. 621 (1981).............-.cccscecececccsecececoeseceseees 16

Seaboard Air Line Railway Co. v. United

States,

261 U.S. 299 (1923).........cccccscscesseseeeees 10, 16, 17, 18

Seven Up Pete Venture v. Schweitzer,

523 F.3d 948 (Sth Cir. 2008) .............cccccccccccesseess 21

United States v. Clarke,

445 U.S. 253 (1980)................. as 16

United States v. Great Falls Manufacturing

Company,

112 U.S. 645 (1884)......cccccccccccescecesesceseseeeeeeeee 18, 19

United States v. Lee,

I TE IID... csusoncecssneesearescocsosenssabecneses 18

United States v. Pink,

ns cncnicdunnsebesbnasonnunesentenesbonse 19

Vanhorne’s Lessee v. Dorrance,

2 U.S. (2 Dall.) 304 (C.C.D. Pa. 1795) ................ 19

Williamson County Reg? Planning Comm'n v.

Hamilton Bank,

I Lo ase ccaceisavonqeasesdseeentceebodsensee g

Wisconsin Central Ltd. v. Public Serv. Comm’n

of Wisc.,

OG F.Be 1SEO (7th Cir. 1906) ..........ccccccccrcscscecccee: 20

STATUTES AND LEGISLATIVE MATERIALS

28 U.S.C.

§ 1254(1) ...ecccecceeeee Ee MEN E EM tare Moh one ane ]

ORC TM aa Meee ohare 15

OS OTE CORTINA RENN 15

48 U.S.C.

I - . ccicnieisiaeaeisadaiadesaedsuisiandiesauioun 13

lah Beek Ores 3

131 Cong. Rec. H11787, 11838 (Dec. 11, 1985)

CONSTITUTIONAL PROVISIONS

Ley SR: GI OF casesciersinsemension abeaacaned passim

PETITION FOR A WRIT OF CERTIORARI

Petitioners, the People of Bikini, respectfully

petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Federal Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-9a) is reported at 554 F.3d 996. The opinion of

the Court of Federal Claims (App., infra 10a-107a) is

reported at 77 Fed. Cl. 744.

JURISDICTION

The court of appeals entered its judgment on

January 29, 2009. A petition for rehearing was

denied on May 27, 2009. App., infra, 109a. On July

28, 2009, the Chief Justice extended the time within

which to file a petition for a writ of certiorari to and

including September 24, 2009, and, on September 14,

2009, the Chief Justice further extended the time for

filing to and including October 23, 2009. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The relevant constitutional and _ statutory

provisions are reproduced at App., infra, 111a-132a.

STATEMENT OF THE CASE

1. Bikini Atoll is part of the Marshall Islands in

the central Pacific Ocean. In 1947, the Islands

became a Trust Territory administered by the United

States. The United States extended to the Bikinians

“all mghts which are the normal constitutional rights

of citizens under the Constitution.” C.A. App.

A0974-975.

In 1946, the United States selected Bikini Atoll

as a testing site for nuclear weapons and evacuated

the Bikinians with promises to return them in a few

months and to care for them in the interim. C.A.

App. A0970. Between 1946 and 1958, the United

States exploded twenty-three atomic and hydrogen

bombs on Bikini Atoll, one of which vaporized three

islands. App., infra, 14a-15a. During that same

time, the displaced Bikinians endured “starvation

conditions.” Id. at 17a. The federal government

returned the Bikinians to the Atoll in 1969, but

evacuated them again nine years later after

determining that radiation levels were far too high

for human habitation and would remain so for

decades to come. Id. at 19a. To this date, Bikini

Atoll remains uninhabitable. C.A. App. A0973.

In 1981, the Bikinians that originally inhabited

Bikini Atoll and their descendants — hundreds of

whom are U.S. citizens — filed suit in the Court of

Claims, seeking, inter alia, compensation under the

Fifth Amendment for the taking of their land. The

Claims Court held that the Bikinians could seek

compensation under the Fifth Amendment and that

their claims were timely. See Juda v. United States,

6 Cl. Ct. 441, 450-451, 458 (1984).

Two years later, the United States and the local

government of the Marshall Islands, which was at

that time subject to the United States’ complete

control and oversight as trust admunistrator,

negotiated a Compact of Free Association that

created out of the trusteeship the Republic of the

Marshall Islands (RMI). App., infra, 112a. The

Compact deemed the RMI 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.” /d.

at 116a. As part of that decision, Congress created

through the “Section 177 Agreement” a Nuclear

Claims Tribunal “to render final determination upon

all claims past, present and future” of the

Marshallese “related to the nuclear testing program.”

Id. at 126a; see 48 U.S.C. § 1921b(e)(2). The

Agreement also provided $45.75 million (and any

income produced from that fund) for the initial

payment of compensation awards. App., infra, 123a.

“{I]n conjunction with the establishment of [that]

alternative tribunal to provide just compensation,”

People of Enewetak v. United States, 864 F.2d 134,

136 (1988), cert. denied, 491 U.S. 909 (1989), the

Section 177 Agreement terminated all federal court

litigation arising from the nuclear testing program in

favor of claims proceedings before the Tribunal.

2. Following adoption of the Compact, the Court

of Federal Claims dismissed the complaint on the

ground that exhaustion of the Tribunal’s proceedings

was required first. See Juda v. United States, 13 Cl.

Ct. 667 (1987). The court explained that the

Agreement’s “termination” of claims “applies to

termination of proceedings, and not to

extinguishment of the basic claims involved,” id. at

686, noting that Congress had acknowledged its

“obligation to compensate” and had _ simply

“establishe/[d] an alternative tribunal to provide such

compensation,” id. at 688. “As long as_ the

obligations are recognized,” the court explained,

“Congress may direct fulfillment without the

interposition of either a court or an administrative

tribunal.” Jd. at 689. With respect to the Bikinians’

arguments that the Tribunal proceedings would not

adequately protect their rights because it was

inadequately funded by the United States, the court

ruled that “[w]hether the compensation * * * is

adequate is dependent upon the amount and type of

compensation that ultimately is provided,” and thus

“(t]his alternative procedure for compensation cannot

be challenged judicially until it has run its course.”

Ibid.

In a related appeal, the Federal Circuit agreed

that judicial intervention was not appropriate “at

this time” based on the “mere speculation that the

alternative remedy may prove to be inadequate,” and

concluded that it need not address the adequacy of

the Tribunal process “in advance of [its] exhaustion.”

People of Enewetak, 864 F.2d at 136, 137.

3. The - Bikinians accordingly sought just

compensation from the Tribunal. App., infra, 47a.

In March 2001, the Tribunal ruled that the Bikinians

were entitled to $563,315,500 in compensation,

including $278,000,000 for the past and future loss of

their land. /d. at 47a-50a. In 2002, the Tribunal

paid 0.25% of the award, $1,491,809, explaining that

“the Nuclear Claims Fund is insufficient to make

more than a token payment.” Jd. at 50a; C.A. App.

A0986. In February 2003, the Tmbunal made a

second payment of $787,370.40. C.A. App. A0987.

The Tribunal announced in 2006 that it could neither

adjudicate additional claims nor pay further

compensation, and that it had only approximately $1

million remaining. App., infra, 4a;

http://www.nuclearclaimstribunal.com/piawards. htm

4. In 2006, the Bikinians filed this action in the

Court of Federal Claims seeking, as relevant here,

compensation both for the taking of their land and

for the taking of their constitutional claims — their

chose in action — in the Tribunal. The court

dismissed the complaint, App., infra, 86a-92a, ruling

that Congress had statutorily barred federal court

jurisdiction over the taking of the Bikinians’ claim

before the Tribunal. The court further ruled that

both claims were premature because Congress might

eventually choose to provide funds, id. at 59a-60a,

and that the claims for just compensation constituted

political questions, id. at 92a-108a.

5. The court of appeals affirmed. App., infra,

la-9a. The court held that Congress validly

foreclosed all federal court jurisdiction over the

Bikinians’ just compensation claims regardless of the

Tribunal’s inability to provide just compensation.

App., infra, 7a-8a. The court acknowledged that this

Court, in Blanchette v. Connecticut General

Insurance Corps., 419 U.S. 102 (1974), expressed

“srave doubts” about whether’ congressional

withdrawal of a Tucker Act remedy for a taking that

was not compensated administratively “would be

constitutional,” but reasoned that it “d[id] not need

to follow the careful course” outlined by Supreme

Court precedent for finding a permanent withdrawal

of Tucker Act jurisdiction because the withdrawal

“does not present any statutory ambiguities.” App.,

infra, 8a. The court concluded that, while “it [is]

difficult to turn away from a case of constitutional

dimension,” the Bikinians’ constitutional “wrong

* * * is not within its power to adjudicate.” Jd. at Ya.

REASONS FOR GRANTING THE PETITION

The Federal Circuit held that Congress can

withdraw Tucker Act jurisdiction over Just

Compensation Clause claims brought by United

States citizens and dependents and replace it with

nothing — completely foreclosing the enforcement by

any court of a self-executing constitutional right.

The court of appeals reached that unprecedented

holding by forsaking the framework for analysis of

Tucker Act jurisdictional limitations prescribed

again and again by this Court. More specifically, the

court conflated the inquiry into whether Congress

withdrew jurisdiction to adjudicate the claim in the

first instance with whether Congress clearly and

unambiguously forbade judicial recourse for the

constitutional shortfall in compensation that arose

after the Tribunal process collapsed and proved

incapable of providing just compensation. Only

explicit and unequivocal evidence should permit a

court to attribute to Congress the deliberate intent to

consign its citizens and dependents to a non-

functioning administrative forum for vindication of

their constitutional nghts.

The Federal Circuit’s decision that Congress can,

in that manner, legislate itself out of its

constitutional obligations under’ the Fifth

Amendment’s Just Compensation Clause also

contravenes decisions from this Court and other

courts of appeals repeatedly recognizing that the

Clause is self-executing. The Fifth Amendment

would be an empty protection indeed if Congress

could avoid its command simply by passing a law

declaring that it will pay whatever it chooses to pay

and forbidding all courts to afford relief. Nor can

Congress escape that constraint by framing its action

as a “settlement,” because that simply begs the

foundational question of whether Congress has the

constitutional power to settle unilaterally individual

claims by United States citizens against the United

States government without the consent of those

individuals. The Constitution forbids the Political

Branches to help themselves right out of the Bill of

Rights’ commands.

I. The Federal Circuit's Decision Conflicts

With This Court’s And Other Circuits’

Precedent Governing The Permanent

Preclusion Of Jurisdiction Over Just

Compensation Claims.

The Federal Circuit’s decision cannot be

reconciled with this Court’s precedent repeatedly

admonishing courts that only the most explicit and

unequivocal congressional command could

permanently and conclusively foreclose any judicial

forum for a Just Compensation Clause claim, even

after the administrative forum chosen by Congress

has become non-functional.

1. Because of the _ serious’. constitutional

concerns raised by a permanent withdrawal of

jurisdiction for Just Compensation Clause claims,

this Court has repeatedly held that only “an

unambiguous intention to withdraw the Tucker Act

remedy” will suffice, Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1019 (1984), and that congressional

intent to do so must be “clear and unmistakable,”

Preseault v. ICC, 494 U.S. 1, 14 (1990).

In determining whether that high threshold has

been met, this Court has instructed courts to analyze

the withdrawal of jurisdiction in two steps. First, a

court must consider whether there has been a

statutory withdrawal of the Tucker Act as the

ordinary, default remedy for an alleged taking.

Monsanto, 467 U.S. at 1016. The court of appeals

was correct that the statutory language in Section

177 on which it relied, App., infra, 131a, channeled

into the Tribunal the Bikinians’ claim that their land

was taken without just compensation and withdrew

Tucker Act jurisdiction to adjudicate that claim in

the first instance.

But the court of appeals failed to address the

critical — and analytically distinct — second inquiry,

which is whether the language initially withdrawing

jurisdiction also permanently foreclosed Tucker Act

jurisdiction over any constitutional claims arising

from deficiencies in that alternative process itself.

Those are very different claims. And even when the

Tucker Act has been expressly displaced as the

initial forum for obtaining compensation, this Court

has routinely held that Tucker Act jurisdiction

remains available for the limited purpose of

redressing any constitutional shortfall arising after

the alternative remedial mechanism has _ been

exhausted and has come up short.

What this Court has repeatedly held — and what

the court of appeals here fundamentally disregarded

— is that the same statutory language that is

sufficient to withdraw the initial Tucker Act remedy

is not alone sufficient to withdraw Tucker Act

jurisdiction over a claim that the alternative forum

itself failed to provide constitutionally adequate

compensation. Such language “does not withdraw

the possibility of a Tucker Act remedy, but merely

requires that a claimant first seek satisfaction

through the [alternative] statutory procedure.”

Monsanto, 467 U.S. at 1018.

Instead, a much more exacting statutory test for

a permanent withdrawal of jurisdiction is necessary

because a total prohibition on federal jurisdiction to

review even a constitutional shortfall claim raises

“clearly grave” constitutional questions concerning

Congress’s ability to legislate itself out of the Fifth

Amendment’s Just Compensation Clause,

Blanchette, 419 U.S. at 134, that the initial

substitution of an alternative forum does not, see

Williamson County Regl Planning Comm'n uv.

Hamilton Bank, 473 U.S. 172 (1985).

In Blanchette, for example, the Court considered

whether Tucker Act jurisdiction was available for

Just Compensation Clause claims arising from the

Rail Act, which established a specialized scheme for

judicial review of railroad claims, expressly directed

that “[t]here shall be no review of the decision of the.

special court,” and imposed a specific cap on

payments by the United States. 419 U.S. at 109-110,

119 & nn.5 & 6. This Court held that the “Tucker

Act remedy is not barred” and remains “available to

provide just compensation” for any “constitutional

shortfall” in remediation, id. at 136, 148. See also,

e.g., Kirby Forest Industries v. United States, 467

U.S. 16, 18 (1984) (where a specially designated

commission’s award fell short of the Constitution’s

measure of just compensation, that shortfall gave

rise to a Just Compensation Clause claim in federal

court); Monsanto, 467 U.S. at 1018 (Tucker Act

jurisdiction remains to remedy “shortfall” in

compensation from administrative scheme).

Thus, once exhaustion of the administrative

remedy has taken place, as it has here, and once the

constitutional insufficiency of that process is

exposed, as it has been here, then only the clearest

and most unequivocal evidence of a _ deliberate

congressional determination “to prevent such

[constitutional] recourse” will suffice. Blanchette,

419 U.S. at 126 (emphasis added). This Court has

consistently viewed seemingly categorical statutory

language as preserving jurisdiction over such second-

stage review. Even under statutes providing that

“there shall be no review,” Blanchette, 419 U.S. at

110, or “[njotwithstanding any other provision of

law, no court shall have jurisdiction,” INS v. St. Cyr,

533 U.S. 290, 299-300 (2001), or individuals “shall

forfeit the right to compensation,” and “no official or

court of the United States shall have power or

jurisdiction to review the administrative

proceedings, Monsanto, 467 U.S. at 994 n.4, 1018,

Tucker Act jurisdiction has always remained to

remedy any constitutional shortfalls in

compensation. See also Dames & Moore v. Regan,

453 U.S. 654, 666, 689 (1981) (Presidential order

that claims “shall have no legal effect in any action

now pending in any court” does not foreclose Tucker

Act remedy ffor’. deficiency in _ tribunal’s

compensation).

That is precisely the relief the Bikinians seek.

They seek not to avoid the Tribunal process — they

dutifully exhausted it. They simply seek an

adjudication of their claims that the Tribunal’s

payment of less than one-half of one percent of the

compensation owed is not just compensation within

the meaning of the Fifth Amendment. That is not a

question on which Congress’s chosen administrative

forum can have the last word or even the job with

which the Tribunal was tasked. “Just compensation

is provided for by the Constitution and * * * [its]

ascertainment is a judicial function.” Seaboard Air

Line Railway Co. v. United States, 261 U.S. 299, 304

(1923).

2. The court of appeals’ conclusion that the

same statutory text that channeled claims into the

Tribunal in the first imstance also withdrew

jurisdiction over the constitutional shortfall claim,

App., infra, 8a, thus asked the wrong question. The

question before the court under Blanchette was no

longer whether the Tucker Act remedy had been

displaced, but whether Congress affirmatively

intended to “prevent” constitutionally mandated

recourse if the Tribunal process itself failed. 419

U.S. at 126. Under this Court’s precedent, the

answer to that question is no.

First, the statutory text does not express any

“clear and unmistakable congressional intent” to

withdraw Tucker Act jurisdiction over constitutional

claims arising out of the Tribunal process itself.

Preseault, 494 U.S. at 14. The withdrawal of

jurisdiction in Article XII of the Compact Act is

limited to claims “based upon, arising out of, or in

any way related to the nuclear testing program.”

The provision says nothing about constitutional

claims that independently arise through the

operation — or collapse — of the Tribunal process.

The withdrawal of jurisdiction moreover is

expressly limited to “claims described in Article X

and XI.” App., infra, 130a. But “disputes arising

from distributions” of adjudicated awards or the

failure of the Tribunal to make the required

distribution are governed by a different Article

(Article IV). Jd. at 125a-128a.

Furthermore, the Agreement’s withdrawal of

jurisdiction speaks only to “claims” that were

“terminated” by the Agreement’s creation of the

Tribunal. App., infra, 130a. As a matter of ordinary

usage, only existing claims can be “terminated.”

Thus, the plain text of the Compact Act indicates

that Article XII is intended to ensure that all

existing claims pending in court at the time of the

Agreement were “terminated” and channeled to the

Tribunal as an initial matter. That language does

not naturally describe claims arising from the

deficiency of the Tribunal process itself.

Second, even if the language of the withdrawal

provision could be stretched to cover constitutional

claims arising from deficiencies in the Trbunal

process itself, that interpretation “would raise

serious constitutional problems, and where an

alternative interpretation of the statute is ‘fairly

possible,” this Court’s precedent mandates that the

alternative construction be adopted. St. Cyr, 533

U.S. at 299-300; see Blanchette, 419 U.S. at 134

(refusing to construe statute to permanently repeal

Tucker Act because of “grave doubts whether the

Rail Act would be constitutional if a Tucker Act

remedy were not available” to remedy constitutional

shortfalls).

Similarly, the “cardinal rule * * * that repeals by

implication are disfavored,” Cook County v. United

States ex rel. Chandler, 538 U.S. 119, 132 (2003)

(citations omitted), and courts’ corresponding duty to

“regard each [statute] as effective” where they “are

capable of co-existence,” J.E.M. Ag Supply v. Pioneer

Hi-Bred Intl, 534 U.S. 124, 143-144 (2001) (citations

omitted), required the court of appeals to hold that

Tucker Act jurisdiction was available for

constitutional claims arising out of the Tribunal

process itself. That is, in fact, how the D.C. Circuit

in Antolok v. United States, 873 F.2d 369, 378 (D.C.

Cir. 1989), the Federal Circuit in Enewetak, 864 F.2d

at 136, and the trial court in Juda, 13 Cl. Ct. at 689,

all read the exact same language, belying any

suggestion that Congress expressed “clear and

unmistakable intent” to permanently withdraw

Tucker Act jurisdiction.

Third, under this Court’s precedent and that of

the Third and Eighth Circuits, only specific

discussion of the Tucker Act’s availability and

affirmative evidence that Congress fully intended “to

prevent such _ [constitutional] recourse” will

completely foreclose Tucker Act relief. Blanchette,

419 U.S. at 126; see also, e.g., Glosemeyer v.

Missouri-Kansas-Texas R.R., 879 F.2d 316, 325 (8th

Cir. 1989) (no withdrawal of jurisdiction where

statutory text does not mention Tucker Act); Neely v.

United States, 546 F.2d 1059, 1064 (3d Cir. 1976)

(action under Tucker Act not repealed when

Congress did not expressly address the issue).

Unlike the rule in the Third and Eighth Circuits,

however, the Federal Circuit’s decision disregarded

that neither the Compact nor Section 177 “mentions

the Tucker Act,” Preseault, 494 U.S. at 12, discusses

“the interaction between [those statutes] and the

Tucker Act,” Monsanto, 467 U.S. at 1017, or

otherwise “deal[s] with the [Tucker Act] remedy,”

Blanchette, 419 U.S. at 136. Indeed, here, as in

Blanchette, Congress’s discussion of the interaction

of the Compact Act with other laws, see 48 U.S.C. §

1905(h)(4) (Federal Tort Claims Act); id. § 1904(f)(3)

(Magnuson Fishery Conservation and Management

Act and Fishermen’s Protective Act applicable to

Marshall Islands); id. § 1905(f) (Foreign Agents

Registration Act); id. § 1905(1) (National Historic

Preservation Act), makes its silence with respect to

the Tucker Act all the more telling and “plainly

implies that Congress gave no _ thought to

consideration of withdrawal of the Tucker Act

remedy” if the Tribunal process failed, Blanchette,

419 US. at 129.

Fourth, also like Blanchette, Monsanto, and

Preseault, nothing in the legislative history of

Section 177 evidences Congress’s intent affirmatively

to prevent a Tucker Act claim as a constitutional

backstop to the Tribunal process. To the contrary,

what little consideration the question received

supports continued Tucker Act jurisdiction. See 131

Cong. Rec. H11787, 11838 (Dec. 11, 1985) (Rep.

Seiberling) (“But a legacy of the unique relationship

of the United States to the Marshall Islanders * * *

will be the pending constitutional questions with

respect to their rights, questions which cannot be

foreclosed from court review.”).

Importantly, the Compact Act and_ the

Agreement were enacted after this Court’s decisions

in Blanchette and Monsanto established the high

level of specificity needed to withdraw Tucker Act

jurisdiction completely. Thus, the absence of textual

or historical support for foreclosing all constitutional

review further underscores that Congress did not

intend the constitutionally suspect result imposed by

the Federal Circuit here. See Conroy v. Aniskoff, 507

U.S. 511, 516 (1993) (presuming congressional

awareness of relevant Supreme Court decisions

when drafting laws).

Fifth, with respect to the government’s provision

of a lump sum of money under the Compact and

Section 177, the Federal Circuit got the analysis

exactly backwards. Rather than support the

termination of Tucker Act jurisdiction, as the court of

appeals reasoned, App., infra, 7a-8a, such

appropriations support continued Tucker Act review

because Congress presumably was “so convinced that

the huge sums provided would surely equal or exceed

the required constitutional minimum that it never

focused upon the possible need for a suit in the Court

of Claims,” Blanchette, 419 U.S. at 128; see Preseault,

494 U.S. at 15.

Finally, the Federal Circuit’s severe truncation of

this Court’s rigorous standard for a permanent

withdrawal of jurisdiction will have widespread and

substantial implications beyond this case, given the

Court of Federal Claims’ specialized role in

adjudicating Tucker Act claims and the Federal

Circuit’s corresponding role in reviewing those

decisions. See 28 U.S.C. § 1295(a)(3) (Federal Circuit

exclusive jurisdiction over appeals from Court of

Federal Claims); 28 U.S.C. § 1491(a)(1) (Court of

Federal Claims has exclusive jurisdiction under the

Tucker Act over all Just Compensation Clause

claims exceeding $10,000). Thus, this Court’s review

is necessary to bring the Federal Circuit’s Tucker Act

jurisprudence in line with this Court’s precedent and

the law of other circuits.

ll. The Federal Circuit’s Decision Conflicts

With Decisions Of This Court And Other

Circuits Holding That The Just

Compensation Clause Is Self-Executing.

Putting aside that the Compact Act does not

evidence the requisite “clear and unmistakable

intent” to prevent Tucker Act jurisdiction over claims

arising from the Tribunal’s functional collapse, the

court of appeals’ constitutional holding equally

warrants review. At bottom, the court held that

Congress could legislate itself out of the Just

Compensation Clause. See, e.g., App., infra, 8a

(Section 177 placed claims “outside the reach of

judicial remedy’). The practical and legal

consequences of that holding are substantial and

extend far beyond this case, particularly given the

Federal Circuit’s unique role in reviewing claims for

just compensation. Compounding the need for this

Court’s review are the conflicts that decision creates

with this Court’s precedent and the rulings of its

sister Circuits, all of which have faithfully enforced

the Fifth Amendment’s Just Compensation clause as

self-executing.

A. The Federal Circuit’s Ruling

Contravenes This Court’s Precedent.

This Court has repeatedly held that the Fifth

Amendment’s assurance of just compensation is

uniquely “self-executing.” First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S.

304, 315 (1987); see also, e.g., San Diego Gas & Elec.

Co. v. San Diego, 450 U.S. 621, 654 (1981) (Just

Compensation Clause has a “self-executing

character”); United States v. Clarke, 445 U.S. 253,

257 (1980) (same). Because “the compensation

remedy is required by the Constitution,” First

English, 482 U.S. at 317, Congress’s “[s]tatutory

recognition” “lis] not necessary,” Jacobs v. United

States, 290 U.S. 13, 16 (1933), nor is a congressional

“promise to pay,” Seaboard, 261 U.S. at 304.

The Federal Circuit's ruling that Congress could

iegislate itself out of its obligation to provide just

compensation to U.S. citizens and dependents simply

by forcing their claims into an administrative forum

and then refusing to fund that forum’s awards

cannot be reconciled with that precedent. Indeed,

the Federal Circuit quite straightforwardly held that

the government escaped liability because it broke its

“promise to pay,” Seaboard, 261 U.S. at 304.

Compare App., infra, 114a (Section 177 of Compact

Act promised to provide “just and adequate”

compensation”); id. at 124a (promising that “[a]ll

monetary awards made by the Claims Tribunal

pursuant to Article [V of this Agreement” would be

“paid in full”); id. at 118a (promising to “provide, in

perpetuity, a means to address past, present and

future consequences of the Nuclear Testing

Program”), with App., infra, 4a (less than 0.5% of the

total award paid). The contrast between the

positions the government took in 1988 and in 2008

underscores the point. Compare U.S. C.A. Br.,

People of Bikini v. United States, Nos. 88-1206 et al.

(Fed. Cir.) (June 1988), at 33 (“Appellant’s

constitutional challenge proceeds from the

presumption that an international Compact, to

which two governments have committed themselves

and their resources, will not provide the just remedy

it promises. That presumption is wholly incorrect.”);

id. at 35 (noting the government’s “continuing moral

and humanitarian obligation on the part of the

United States to compensate any victims—past,

present or future—of the nuclear testing program”);

id. at 34, 38 (same brief, stating that Section 177

Agreement provides “continuous funding” and a

“comprehensive, long-term compensation plan”), with

U.S. C.A. Br., People of Bikini v. United States, No.

2007-5175 (Fed. Cir.) (Apr. 4, 2008) at 25 (no

constitutional issue posed, because Section 177

Agreement offers “monetary compensation” greater

than “zero”).

Because the Bikinians’ suit “rest[s] upon the

Fifth Amendment” itself, Jacobs, 290 U.S. at 16, “the

right to it cannot be taken away by statute,”

Seaboard, 261 U.S. at 304. See First English, 482

U.S. at 316 (“[This] Court has frequently repeated

the view that, in the event of a taking, the

compensation remedy is_ required by the

Constitution.”); Baltimore & Ohio R.R. Co. v. United

States, 298 U.S. 349, 364-365 (1936) (foreclosing

altogether “an investigation by judicial machinery

* * * fis] in violation of the Constitution of the United

States”). Thus, contrary to the court of appeals’

assumption, the Just Compensation Clause is not

subject to the type of complete congressional

negation approved by the Federal Circuit here. That

is why, long before the Tucker Act’s passage, this

Court recognized the private enforceability of the

Just Compensation Clause. In United States v. Lee,

106 U.S. 196 (1882), for example, this Court held

that courts must “give remedy to the citizen whose

property has been * * * devoted to public use without

just compensation,” since “[i]n such cases there is no

safety for the citizen, except in the protection of the

judicial tribunals, for rights which have been

invaded by the officers of the government, professing

to act in its name,” id. at 218-219. See also id. at 220

(Fifth Amendment rights “were intended to be

enforced by the judiciary”).

Similarly, in United States v. Great Falls

Manufacturing Company, 112 U.S. 645 (1884), this

Court held that, when the United States has “taken

the property of the claimant for public use,” it is

“under an obligation, imposed by the Constitution, to

make compensation,” and “[t]he law will imply a

promise to make the required compensation” when

such a taking occurs, id. at 656. See also, e.g., Kohl

v. United States, 91 U.S. 367, 376 (1875); Vanhorne’s

Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 312 (C.C.D.

Pa. 1795) (“[T]}he legislature * * * cannot

constitutionally determine upon the amount of the

compensation, or value of the land.”).

Finally, the Federal Circuit attempted to qualify

its holding by characterizing Congress’s action as a

“settlement.” App., infra, 8a-9a. But there is no

dispute that the government never reached a

settlement with the individual claimants who are

petitioners here. The whole settlement rationale

propounded by the court of appeals thus begs the

question presented: whether Congress has _ the

constitutional power to release itself, without any

judicial review, from claims by U.S. citizens against

the U.S. government simply by adopting laws,

whether statutes or compacts with local governments

under the United States’ dominion and control.

For similar reasons, the Federal Circuit's

invocation (App., infra, 9a) of United States v. Pink,

315 U.S. 203 (1942), and the political question

doctrine is misguided. Pink dealt with the

President’s resolution of claims against a foreign

government. It says nothing about Congress’s ability

to legislate or contract the United States government

out of constitutional claims by U.S. Citizens and

dependents against the United States government.

See Medellin v. Texas, 128 S. Ct. 1346, 1351-1352

(2008) (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.”); Dames &

Moore, 453 U.S. at 691 (Powell, J., concurring &

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 and subject

to the jurisdiction of our courts.”); see also Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

B. The Federal Circuit’s Decision Conflicts

With The Rulings Of Other Circuits.

Until now, every court of appeals to address the

question — nine in total — has held that the Just

Compensation Clause is “self-executing” and thus

cannot be defeated by congressional design. For

example, in sharp contrast to the Federal Circuit’s

decision here, the Second Circuit has made clear that

“the exercise of Congress of its control over

jurisdiction is subject to compliance with at least the

requirements of the Fifth Amendment,” and thus

that, “while Congress has the undoubted power to

give, withhold, and restrict the jurisdiction of courts

other than the Sunreme Court, it must not so

exercise that power as to * * * take private property

without just compensation.” Battaglia v. General

Motors, 169 F.2d 254, 257 (2d Cir. 1948).

Likewise, the Seventh Circuit has ruled that

“It]he just compensation requirement of the Takings

Clause places takings in a class by themselves

because, unlike other constitutional deprivations, the

Takings Clause provides both the cause of action and

the remedy.” Wisconsin Central Ltd. v. Public Serv.

Comm'n of Wisc., 95 F.3d 1359, 1368 (7th Cir. 1996).

See also McKesson v. Islamic Republic of Iran, 539

F.3d 485, 490 (D.C. Cir. 2008) (“cause of action” may

be “infer[{red]” from Just Compensation Clause);

Seven Up Pete Venture v. Schweitzer, 523 F.3d 948,

953-954 (9th Cir. 2008) (Just Compensation Clause

is “self-executing”); DLX, Inc. v. Kentucky, 381 F.3d

511, 521 n.7 (6th Cir. 2004) (States have no power to

deny a just compensation remedy because Just

Compensation Clause is “seif-executing”); Harbert

Intl, Inc. v. James, 157 F.3d 1271, 1278 (11th Cir.

1998) (States must provide “means of redress” for

deprivations of property because Just Compensation

Clause is “self-executing”); Mann v. Haigh, 120 F.3d

34, 37 (4th Cir. 1997) (distinguishing suit brought

under Just Compensation Clause, a “situation in

which the Constitution itself authorizes suit against

the federal government,” from other suits against

United States where jurisdiction exists “only if

Congress has consented to suit”) (citations omitted);

Oglala Sioux Tribe v. United States, 650 F.2d 140,

143 (8th Cir. 1981) (Constitution “allow[s] suit for

just compensation directly under the Fifth

Amendment”); Duarte v. United States, 532 F.2d 850,

852 n.3 (2d Cir. 1976) (Due Process Clause not “self-

executing,” unlike the Just Compensation Clause);

Board of Comm’s v. United States, 100 F.2d 929,

934 (10th Cir. 1939) (‘just compensation being

provided for by the Constitution, such right cannot

be taken away by statute, the ascertainment being a

judicial function,” and hence landowners have action

against State for unlawful appropriation of funds).

The Federal Circuit’s holding that Congress can

take itself out of the Just Compensation Clause

conflicts with those other Circuits’ faithful

enforcement of that Clause’s __ self-executing

character. Given the Federal Circuit’s special role in

adjudicating Just Compensation Clause claims, this

Court’s intervention is critical to bring uniformity to

the law and to ensure that the vindication of

constitutional rights does not vary based on

jurisdictional geography.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,