US Personal Injury Litigation Arising from Fukushima Nuclear Power Accident Found not Subject to Dismissal Under the Political Question Doctrine

The World in U.S. Courts: Summer 2017 - Foreign Sovereign Immunity Act (FSIA)/Political Question Doctrine

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Cooper v. Tokyo Electric Power Co., Inc., US Court of Appeals for the Ninth Circuit, June 22, 2017

US military personnel were deployed to assist Japanese forces in the wake of the 2011 earthquake and tsunami that hit Northern Japan and resulted in catastrophic damage to the Fukushima Daiichi Nuclear Power Plant, operated by Tokyo Electric Power Company (TEPCO). The plaintiffs alleged they suffered serious medical injuries as a result of exposure to radiation, and that their injuries were occasioned by TEPCO’s misstatements incorrectly minimizing the extent of the radiation leak. Although a comprehensive plan for adjudicating claims of injury was established in Japan, the plaintiffs filed suit against TEPCO in Los Angeles. The District Court denied TEPCO’s efforts to dismiss the case on various grounds and an immediate appeal followed. The Court of Appeals affirmed the District Court’s decisions—albeit with recognition that the case presented a number of close questions, and an invitation for the District Court to reconsider its conclusions as the case proceeded.

As relevant here, the Court of Appeals declined to dismiss the case on grounds of the Political Question Doctrine. TEPCO argued that the plaintiffs’ injuries stemmed from the independent decision of the US military to deploy forces where and when it did, and that this decision was not subject to judicial review in the context of a suit for personal injuries. The Court of Appeals explained that, as applicable to the present case, the Political Question doctrine would require dismissal if resolving the claim would involve a court in second-guessing a “military” decision that had been committed to the Executive Branch of the US government. However, the Court of Appeals could not say “at this stage of the litigation” whether resolution of the case would implicate the question. That would require a decision as to what law to apply and the impact addressing the military decision would have on claims or defenses. The Court of Appeals thus concluded that the Political Question doctrine did not yet require dismissal of the case, but advised that the issue should be reconsidered as litigation progressed.

[Editor’s note: The Cooper case is also discussed in the Personal Jurisdiction/Forum non Conveniens section of this report.]

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