United States Court of Appeals for the Federal Circuit
2007-5175
THE PEOPLE OF BIKINI, by and through the
Kili/Bikini/Ejit Local and Government Council,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
----------------------
2007-5176
ISMAEL JOHN, JACKSON ADING, JAMES GIDEON,
KUNIO 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,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
Patricia A. Millett, Akin Gump Strauss Hauer & Feld LLP, of Washington, DC,
argued for plaintiff-appellant in appeal 2007-5175. With her on the brief were Thomas C.
Goldstein, Robert K. Huffman, Duncan N. Stevens, and Monica P. Sekhon. Of counsel on
the brief was Jonathan M. Weisgall, Jonathan M. Weisgall Chartered, of Washington, DC.
Jonathan G. Cedarbaum, Wilmer Cutler Pickering Hale and Dorr LLP, of
Washington, DC, argued for plaintiffs-appellants in appeal 2007-5176. With him on the
brief were Seth P. Waxman and P. Davis Oliver; Craig E. Estes, of Boston,
Massachusetts, and Daphna Renan, of New York, New York. Of counsel on the brief was
Davor Pevec, Law Offices of Davor Pevec, of Honolulu, Hawaii.
Brian M. Simkin, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-appellee in
appeals 2007-5175 and 2007-5176. With him on the brief were Jeffrey S. Bucholtz, Acting
Assistant Attorney General, and Jeanne E. Davidson, Director.
Appealed from: United States Court of Federal Claims
Judge Christine O.C. Miller
United States Court of Appeals for the Federal Circuit
2007-5175
THE PEOPLE OF BIKINI, by and through the
Kili/Bikini/Ejit Local and Government Council,
Plaintiff–Appellant,
v.
UNITED STATES,
Defendant–Appellee.
------------
2007-5176
ISMAEL JOHN, JACKSON ADING, JAMES GIDEON,
KUNIO 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,
Plaintiffs–Appellants,
v.
UNITED STATES,
Defendant–Appellee.
Appeals from the United States Court of Federal Claims in 06-CV-288 and 289, Judge
Christine O.C. Miller.
___________________________
DECIDED: January 29, 2009
___________________________
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 unambiguously 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.
I.
The Court of Federal Claims sets forth the background of this dispute in great
detail. See People of Bikini v. United States, 77 Fed. Cl. 744 (2007); John v. United
States, 77 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 Marshall Islands. In December 1947, the United
States selected these Pacific Ocean atolls as sites for the Nuclear Testing Program.
The United States removed the inhabitants 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 compensation for the Fifth Amendment taking of
their land and damages for the United States’ breach of its fiduciary 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 Congress in 1984. The Compact of Free
2007-5175, -5176 2
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 responsibility 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 Islands 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 operations and awards. Section 177 Agreement, Art. I, § 1. Congress
designated $45.75 million of that amount for the payment of awards. Id. at Art. II, § 6(c).
Even from its inception, many critics recognized that the Tribunal fund would not satisfy
all of the claims.
On August 3, 2000, the Tribunal awarded the Plaintiffs–Appellants, the People of
Enewetak, $385,894,500, including $244,000,000 for past and future loss of Enewetak
2007-5175, -5176 3
Atoll, $107,810,000 for restoration costs and radiation cleanup, and $34,084,500 for
hardships suffered 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 compensation, including $278,000,000 for the past and future
loss of their land. Due to inadequate funding, however, the Tribunal paid only
$1,491,809 in 2002, recognizing that the fund is “insufficient to make more than a token
payment.” The fund made a second payment of $787,370.40 in 2003, approximately
0.4% of the total award. As of October 2006 only $1 million remained in the Tribunal
fund.
Article IX of the Section 177 Agreement provides an avenue for seeking
additional funding from Congress. A “Changed Circumstances” petition can be
submitted to Congress if “such injuries render the provisions of this Agreement
manifestly inadequate.” Section 177 Agreement, Art. IX. Article IX goes on to say that
it “does not commit the Congress of the United States to authorize and appropriate
funds.” Id. The Government of the Marshall Islands submitted a Changed
Circumstances petition to Congress requesting 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 takings claims on inadequate funding of the
Tribunal’s award programs (claims-based taking) and the deprivation of their land during
2007-5175, -5176 4
the testing (land-based taking). Before the United States Court of Federal Claims, the
Appellants also asserted various contract and implied contract theories.
The Court of Federal Claims granted the Government’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, ripeness doctrines, statute of limitations bars, collateral estoppel bars, and
other deficiencies in the claim prevented any grant of relief. The Appellants timely
appealed to this court. On appeal, this court received only the land-based and claims-
based taking claims.
II.
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. 1993).
The Section 177 Agreement states: “This 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 . . . .” 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
2007-5175, -5176 5
dismissed.” Section 177 Agreement, Art. XII (emphasis 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, deserve 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 divides power between the
legislative, executive, and judicial branches. Judicial power is vested in one Supreme
Court and “in such inferior Courts as the Congress 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 jurisdiction and the limits of judicial authority for the
"inferior Courts." In addition, the legislative authority to establish the inferior courts
includes the power to limit their jurisdiction and powers. Because Congress "ordain[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 announcing the fact
and dismissing the cause.”). Thus, before proceeding to hear any claim, even a
constitutional claim, this court must ensure that it has jurisdiction to act.
2007-5175, -5176 6
The Section 177 Agreement is a settlement agreement. By its own terms, it
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.” 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 acknowledges 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 settlement agreement entrusted the funding remedy to a
procedure outside the reach of judicial remedy.
Indeed on that point, the language of the settlement agreement is clear: “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
2007-5175, -5176 7
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 ambiguities about the jurisdiction or,
actually, the absence of jurisdiction to entertain the Bikini and Enewetak taking claims.
This court notes that, in Blanchette, the Supreme Court refused to resolve ambiguities
in the statute 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 language of the Section 177 Agreement presents no ambiguities
whatsoever. Therefore, this court does not need to follow the careful course of the
Blanchette case.
Moreover, unlike the Blanchette case, this case involves 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
authority 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
People of Enewetak, challenge the validity of that espousal. However, that challenge
raises a political question beyond the power of this or any court to consider. Id. at 229
(“What government is to be regarded here as representative of a foreign sovereign state
is a political rather than a judicial question, and is to be determined by the political
2007-5175, -5176 8
department of the government.” (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 jurisdiction. In sum, this court cannot hear,
let alone remedy, a wrong that is not within its power to adjudicate. 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
2007-5175, -5176 9