Free Notice (Other) - District Court of Federal Claims - federal

Case 1:06-cv-00289-CCM
i

--_.. _.__.-

Document 25-8

Filed 05/03/2007

Page 1 of 18

j
I i

tion 177 Ageement to condition the withdrawal of the United

. States'.consent to suit on a judicial determation that the MarshaI Islands valdly espoused those clai under Arcle X. As the Clai Cour found, however, that position ignres both the plai
wording of Section 103(g), which rati~, but does not condition,
the fial settement of clai and concurrent withdrawal of States cour

jurisdicton, as well as legilative history showig that

United

Congress rejected thi very condition. 13 a. Ct. at 684-685 (App. 18-19). As discuSsed in Section IV of ths brief, the Republic of the Marhal Islands has valdly espoused and settled its national'

clai. The Qai Cour, neverteless, correctly held that that
"Aricle XI is not made contigent upon a judicial deteIIation
of the valdity of espousal in Arcle x." 13 CI. Ct. .at 686 (App.

20).

A. Section l03(g) on its face does not condition Article XI
on judicial review of espousal. It is inconceivable that Congres would have amended and
conditioned a major diplomatic ccai settement afectig foreign .

..

- --;

policy and defense interests24 without sily and diectly statig

.that Arcle XI is made contigent on vald espousal under AIticle X. Section 103(g), however, states no such condition. Indeed,

the plai language of Section. 103(g) does not require, diect, or even alow judicial review of the .valdity of Marhal Islands. espousal, either as a condition for withdrawal of juridiction, or.. for any other purose. As the cour inAnt%k II stated in rejecting the same arguent appellants make here (App.1413, citations oootted):
(TJhe language of Sec'tion 103(g) * ** clearly deprives
this Cour of juridicton, and where the langauge of a
statute is clear it is improper to'

rely on legislative hi-

tory to interpret the statute. If Congress wanted to fist
have cour test the Compact, it could have said so; instead Congress strpped the cour of jurdiction.. .

Whe appellants seek to draw inerences from the second
sentence of Section 103(g)(2), neither that sentenc"e in isolation,
24 Representati Jim Lech de~bed the Compact as "one of the signcat

foreign policy iitiatives of the decade." 131 Cong. Rec. E3588 (Jtty 29, 1985) .
27

--

t, .

i i

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 2 of 18

. ...... .......-- - .- .._..._._. ._._._._.

j

nor Section 103(g) as a whole, support their assertion. As the

Clai Cour stated, the Marhal Islands and the United States
"unquestionably intended that the Section 177 Agreement would
be a complete settlement of al clai aring from the nuclear test-

ing program." 13 a. Ct. at 684 (App. 18). Arcles x: and XII of the Agreement operate together to accomplih that end by settlg the underlyig clai and termnatig the related cour cases. Nowhere does the Ageement state that Arcle XI is contigent

on a judicial determation of a vald Arcle X espousal. . The meang and purose ,of Section 103(g) is straightforward. Section 103(g)(1) exressly raties the approach a40pted in Arcles X and XI, statig that "Ii) t is the intention of the Con- .
ggess *' * * " that the Section 177 Ageement" * * *. constitute a

, full and fial settement of al clai descrbed in Aricles X and
XI ** * , and that any such clai be termated and bared except insofar as provided for in the Section 177 Ageement" (App.

------------S39)-:Sectioll--03(g)(2';-in-tu;-states-that-"(ijn-furtherance-of-------the intention of Congress as stated.in paragrph (1)," the Section 177 Agreement is "ratied and approved" (App. 839). Congress' under the Section 177 Agreement fial settlement , endorsement of
. could not be more clearly stated TTere is no language, no in-

. ference, nor any recogntion whatsoever that clai may yet be litigated in any cae contingent on judicial approval of Arcle X. The fial sentence of Section 103(g)(2), relied on by appel.
lants, provides that the jurdictional

litations in Arcle XI "are

enacted solely and exclusively to accomplih the objective of Article X ot sUch Ageement-and only as a clarcation of the effect of Arcle X, and are not to be constred or implemented separately from Arcle X" (App. 839). That clause, however, does not, as

~ppellants argue, condition Arcle XI onjudidal determation
that there has been a vald espottal under Arcle X. . It simply

conf that the proviions are to be implemented together, as
aleady requied by the term of the Agree~ent itself, and that dis25 Simarly, Arcle ,X; Section 2 obligates the M~hal Isands gOvernment to ,

tennte legal procdings in its cour aring from the nuclear testig progr
(App. 342). These reciproc undertgs were deemed an essential par of the,
Secton 177 Agreement, to ensure that the settement wotd not be dirupted as

a result of ongoing litigation.
28

" I"

Case 1:06-cv-00289-CCM
i

Document 25-8

Filed 05/03/2007

Page 3 of 18

i
¡

I i

misal of court actions is to occu in order to achieve a "fu and
fial settlement."

0'1

Thus, the second sentence states, for examp~e, that Arcle XII is enacted solely to accomplih "the objective" of Arcle X, which, under Section 1 of Arcle X, is the "Full Settlement of All
Clai" (App. 342).2~ Arcle XI alo "c1ares," by concurrent

dismial of the cour actions, the "effect" of Aricle X, which is the

i J

settlement of al clai." Final, the statement that Aricles XI
and

X are not to be "constred or implemented separately" mean

only that these proviions operate together to implement the
agreed-on settement.

:1

Section 103(g)(2), then, merely conf the uned and
complementa approach agreed to by the United States and Mar-

:;
0,

----

shall Islands to achieve fial settement Arcles X and XI work together to achieve that settement. For Congress, "in fur--- ----

il

thera~e" of a "full and"fial settlement," to acknowledg~ in Sec-_

tion 103(g)(2) 0 that dismisal of court actions is 0 to occur in conjunction with settement of 177 Agreement :which Congress o quired by the tenu of the Section undeHyig clai, as aleady re-

--------------.- ---

"approved and ratied," fa far short of requig cour to adjudicate the valdity of an international clai settement. 26

B. Congress rejected the very provision appellants ask
ths Court to add to the ,Compact Act. 0

As the Clai Cour found, Congress, in fact, rejected langauge which would have conditioned Arcle XI's withdrawal of

juridiction on judicial review of espousal. 13 a. Ct. at 684-685
(App. 18-19). That version of paragraph (2), which the House had
passed on July 25, 1985, would have

provided (App. 740):

(2) If, notwthtandig the enactment into law of thi joint resolution, a United States court of competent
26 Appellanfs fuer asserton (Br. 21, 25) that the Ageement's inde:mnîcation clause (Ar. XI, App. 342-343) "recogn" that espousal may be invad, and
that such doubts "must have been shared by the Addtrtion," is wholly incorrect. That clause, lie al indemcation clauses, provides basic legal protection

agait unforseen contigencies. It hary constitutes an admision of doubt as

to espousal, and is of no aid to appellts aserton that Arcle XI is conditioned
on espousal.

29

00
i

'-.

~

f,.
¥

Case 1:06-cv-00289-CCM
I i

Document 25-8

Filed 05/03/2007

Page 4 of 18

j
I

juridiction determes that the proviions of Ar~le X matter of the (Section 177 Agreement) are invald as a

of international law or for any other reason, the

l
~ !

provisions of AIcle XU * * * shal not, of themselves, the United States otherwse having prevent any court of
juridiction over clai desc'bed in Aricles X and XI clai; and the. time be* * * .from entertaig such

I.

tween the effective date of the Compact and any subsequent fial judicial determation of invalidity of Aricle X * · * shal not be included in any cacuations
regarg applicable statute orlimtations * * *.27
In passing the Compact Act, Congres.s retaied the Hous~- .

pased paragrph (1) of Sect~on 103(g), which ated "fu and .

fial settlement," but altered paragrph (2) entirely. Congress,
. made it explicitly clear, for exaple, by addig to paragraph (2) an

introductory fit sentence, that "(i)n furterace of the intention

--f-Co--gress-as-stated-in-paragraph-(-l-)¡'the-Section-l-7Q-Agee---------..
ment is "ratied and approved" (App. 839). And it rewrote the
now-second sentence entiely, removing the. statement that cour.

may disregard Arcle XI if Arcle X is found invald, and even any reference. to the valdity of espousal judicial review, or to

cial review of espousal.28 .
statute of

litations considerations which might result fromjudi-

Appellants asert (Br. 28) that these changes "ca be explaied by the desire not to seem to be invitig the coi. to upset

Aricle X." These sweeping revisions to Section 1.03(g)(2)~
27 Congresan Seiberlg propoed th alternatie in a June 5, 1985, draft
of what

wa then denomited as Secton S(n) (App; 368-369). In addition to ex:.

presly conditionig Are XI on judcial detennation of a vald espusal the
ongial Seiberlig proposa alo contaied no paragrph (1), declarg the "inten-

tion of Congres" that the Secon "177 Ageement "constitute a fu and fial.set-

tlement" and that clai ''be termated and baned exept as provided in the
Agreement (compare Seiberlg propos at App. 368-369 to House-passed version above, and to See. 103(g) as enacted at App. 839). 28 Whe appellants contend (Br. 26 0.7) that the tollg clause is "irelevant,"
that clause was an integral part of the Seiberlig proposal. The statute of Hons language, in fact, had relevance onl as a means limit

a-

of implementing the

.' proposed condition for Arcle XI, and its deletion fuer demonstrtes that
Congress expressly rejected such a condition.
30

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 5 of 18

1

i !

! i .

however, are a complete rejection of the Seiberlig proposal,
which would have done justthat. As the cour stated i1Antolok

II, "Congress' rejecton of the aaendment signal an intent to block cour review of the Compact" (App. 1414).

Havig failed to achieve passage of his alternative, Con.
gressman Seiberlig, miutes before the House adopted the Compact Act, asserted in a floor statement that (App. 811):
(T)he House bil alo included language specifng that

should article X of the section 177 subsidiar agreement '
be held invald, arcle XI of that agre'ement would
'have no

effect; whie thi language has been somewhat

revied, the new version is to the sae effect

Whle appellants rely extensively on th language, a single floor

-------

statement caot prevai over the plai langauge of Section l03(g) as passed. United States v. Jame, 478 U.s; 597 (1986); Gemsco . v. Wallng, 324 U.S. 244, 260 (1945).29 And by Conggessar
Seiberling's own admion, hi earlier version, "specifg" the

, ,

conditional i,atue of Arcle XI, was removed. Hi last riute
attempt to save hi position by asertg that the adopted version
, "is'to the same effect" is simplyunpersuasive. '
Moreover, other members contradicted Congressman

Seiberlig's floor interpretation. Congressman Solar Chai

of the House Foreign Afai Subcommttee on Asia and, the
Pacic and a House sponsor of the Compact Act, stated that same

day that "the compact settles al nuclear clai resting from our
nuclear

weapons testigpiogr *. *." 131 Congo Rec. H11836

(Dec. 1i, 1985) (App. 818). Senator McOure, chai of the .

, lead Senate commtt~e on the Compact and floor manager of the

Act, stated two days ,later that Section 103(g) "reiterates the
proVÌions of Se~tion 177 of the Compact which provides that

there is full and fial settlement of al nuclear effects clai." 131
Congo Rec. S17651 (Dec: 13, 1985) (App. 823). Senator McQure
29 There is a clear presumption that Congress, in selectig the statutory language it did, meant what it enacted. Amex Corp. v. United States, 620 F.2d 853, 862 (Ct. a. 1980). Views of individual members,in parcu, caot overcome statutory language which is clear on its face. General Elec. Co. v. United States, 610 F.2d 730, 734 (Ct. Cl. 1979).
31

I

-

f.;

j

i I i

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 6 of 18

i
i i

added that, given concern over. protracted litigation, "both the
House and Senate agreed that an explicit endorsement of the important" (ibid.). Finaly, Congressman Lagomarresolution was
sino, another Compact sponsor, endorsed th view, statig (132

Congo Rec, E66-E67, Jan. 23, 1986) (App. 899): .
with respect to

Upon personaly reviewig th~ Congressonal Record the Compact, I discovered that last
miute questioDS were raied. '* * *. Senator McClure

alo refers to Senate and House agreement to expresly endorse the 'espousa proViions in Section 103(g). * * *. As a member of both the Foreign Afai and In-

terior and Inar Afai Comnttees * * * I participated in

the agreement. * * '*. I ca conf that it

was the intent of Congres that the section 177 be fuy .

-

iiplemented strcty in accrdance with its term, and
-------~reJectlon-o -ear er-versoDS-E) -l;lat-preVilE)n.- .

. . . f Ii . f .1. . .

that the fial "Version of Section l03(g) represents our

. Congressman Seiberlig, as appellants note, was a pricipal

architect of importt pars of the Compact. On th ise,
however, hi position -simply did not prevai. Section i03(g) did . not, as:,appellants asert, "amendll the Section 177 Agreement.30
Rather, as Congress stated, Secton 103

(g) "ratied and approvedll

clai."

the Section 177 Agreement as a "fu' and fial settlement of al

II TH COl\ACT'S CLAS SETEMENT MEETS

FI AMNDMENT REQUIMENTS
. Appellants challenge the constitutionalty of the clai set-

tlement agreement on the asertion that the United States settled
nuclear testig clai for less than fu value by. providig inade-

. 30 Appellants' observation (Br. 24-25 n.35) that the Compact to the Marhal Islads legitue to af ttde 'and tax reviions added

was resbmitted

by the

Compact Act fai to ac1aowledgc that thc Nitijela reslution accmplihig thi
. end contai no reference to Scction 103

(g), or an recoggtion that the Marhal

Islands government considered that proviion to be an "amendment." (See Nitijela Res. No. 62 N.D.-2 at App. 997- 1012). Secton 103(g) was not included with these other revions becusc neither the Marhal Islands nor the United States viewed it as alterig the Compact or Section 177 Agreement.

32

'.,

-:~:

-

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

....._-_.._--_.._--_._--------_....._-_.- ...

Page 7 of 18

quate compensation. Thus, appellants asert that Aricle XI's
withdrawal of jurdicton, in implementation of settement, un-

constitutionaIy wi tae their Fif Amendment just compensation clai and impliec;-in-fact contract clai to the extent that

there ultimately proves to be a shortal in compensationfJrovided
under the Section 177 Agreement (Br. 33-34 and nAS). 1

The claa Cour held, however, followig e~ense analysis
öf the Compact and bindig precedent in th Cour and the

Supreme Court. that the clai settement agreement meets al
constitutional requiements. 13 a. .Ct. at 690 (App. 24). The

. cour found that Congress' ratictltion of the settlement,. and specifcaly Arcle XI was a vald exercise of its authonty to . withdraw consent of the United States to'sut under the Tucker
Act. 13 Cl. Ct. at 688-689 (App. 22-23). The Compact and Sec. tion 177 Agreement establih a complex, perment mechanism for compensatig claiants, which in the best judgment of the Ex-

.. -'-ecutive,the-ongiess,-and-the-Marsha:-Isla:ds-governent~"provides a means for fial dicharge of constitutional obligations

-

. for just compensation." 13 Cl. Ct. at 689 (App. 23):
A.

The claims settlement creates a comprehensive, permanent meas of resolvig aU past, present and future nuclea testig claims.

Appellants' constitutional challenge proceeds from the
presumption that an international Compact, to which two govern- .

ments have commtted themselves and their resources, wi not provide the just remedy it prOmes. That presuption is wholly'
incorrect.
I.,

I.

31 It should be noted however, that appellts.did not amend their comp!¡ts

followig Compact approva to alege .t1at the Compact and Secton 177 Agreement unconstitutionaly depried them of their underlyg clais (see amended
complaits. at App.109,193, 246). Thus, the complaits do not iiert the clais

:J i , I

raed on appeal. It shottd also aga be noted that the constitutional issue does

,
i I i I

not arise unes the Marhal Islads governent is found not to have valdly
espoused its nationals' cls. As appellants state (Br. 21), '(ilf espousal under
Arcle r is vald, the withdrawal of juridicton operates, and' claiants are

remitted to the fund admistered by the Oais Tribunal for any compenstion they may receive..
33

t
I i i i i i J , I i

ii
f:~

Ik...

,

.

~.i

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 8 of 18

The objective of the Agreement is "to create and maitain, in perpetuity, a mea to addres past, present and futue consequences of the Nuclear Testig Progr includig the resolution

of resultant clai" (App. 331, emphasis supplied). As the
cornerstone fundig, the United States on October 30, 1986, im-

mediately afer the Compact took effect, paid $150 mion to the
Marhal Islands governent to create the

compensation Fund es'"

tabIihed by Arcle 1 (App. 1241).32.The Ageement requires,
however, that the Fund be pennentl invested, with an investment goal of at least $18 miion per year"

(App. 332), and with al

distnoutions for compensation progr and clai adjudication

to come from the proceeds (App. 332). The Fund's pricipal may

be drwn only if proceedS wi not meet 'anual distnoution
schedules (App. 336).33 The Section 177 Agreement's fudig
structue is thus designed to operate as long as necessar unti al
consequences of the nuelear testig progr are addressed.. The
-- -----

United States and Marshal Islands drafed the Agreement to
---;-- proviâe contiuous ffnâig to resolve, not avoid, those conse- .

- _._-------------

. quences.
. . It is, of coure, conceivable that

the Fund could become

depleted because of radical long-term investment diffcuties, or

substantial unforseen damages. The Agreement expressly
provides as to "Changed Citance" however, that (App. 341-.

342):'

321J fact, Congresan Seiberlig charcterd th amount as "a substatial price tag in thes austere ties" (App. 810). As the Cl Cour noted, claiants
thereupon entered into ageements bas on the Section 177 Ageement, borrowig over $9 mion by collateralg thir intial payments under the Agree-

. ...
34

. ment 13 a. Ct. at 677 (App. 11; see alo, App.1261-1265). 33 As appellants note (Br. 44 n.47), diburments were made from the Fund

durg its intial year in light of the ~cent stcik market "correction" afectg al
investors. That dibursement i. no way impai, nor do

appellts suggest that it

impai, the long-term peformance and viabilty of the Fund. Indeed, prior to the
stock market disruption, the Fund was achievig an anua return of 20 percent.

The amounts disbursed have sice been paral restored, and it is anticipated wi
be fu restored in the near futue. The Fund contiues to operate as a long-term

investment progrm, providig "a perpetual mean of addresing the special and unique circumstaces" arg from the nuclear testig progrm (App. 332).

~'-'.

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 9 of 18

If loss or damage to propert and pe~on of the citiens of the MarhaI Islands,.. resultig from the. Nuclear

Testig Progr, ares or is dicovered afer the effective date of th Agreement, and such injures were not and could not reasonably have been identifed as of the

effective date of thi Ageement, and if such injures render the proviions of th Agreement inestly In, adequate, the Governent of the Maral Islands may request that the. Governent of the United States

, .,

provide for such injures by submittg such a request to the Congress of the United States for its consideration. It is understood that thi Arcle does not commt
the Congres of

the United States to authorie and ap-

propriate fuds.34 .
In any case; it was the best

judgment of the United States and Mar-

------

shal Islands governent that the compensation plan as strctued

.--'----------üitle AgreemeIIt wi equitably address al consequences of the , nuclear testig program The Agreement is designed to operate

--- --i-I
i .1 J I, i , j I

, "in perpetuty," is cuently operatig effectvely to address longproblems stemmg from the testing program be resolved on a pennanent basis.
tenn need, and fuI: the intent that complex

With these objectives, the Section 177 Agreement strctues compensation in severa dierent form. It provides $2
Consistent

inon per year, over 15 year, for health cae program, and an
additional $3 mion over thee year for medical sueilance and
radologica monitorig (App. 333-334). It alo

provides $183.75

mion, over 15 year, ip diect payment to distn'bùtion authori ties
for Bik, Enewetak Rongelap and Utrk (App. 334-335),which

may be placed in trst "to provide a perpetual source of income
34 Senator McQure, Senate floor manger of the Compact, stated as to thi . contiuig mora and humantaran obligation on tlc part the UlÚted States to compensate any victi - past, present or futue - of the
astance requied, absent compellg con-

provision:."(There is a of

nuclear testig program. For th reaon, I fuy expect that if new claims develop
Congres should and wi provide any

trdictoiy'evdence" (App.463). 35 The large majority of claiants in thes a~tions are fr~m Bik Enewetak,
Rongelap and Utr which atoll, under the Section 177 Ageement, are'makg
distributions and extending medica and other benefits to a colleCtive population

35

-

",

! ~

¡

Case 1:06-cv-00289-CCM
..

Document 25-8

Filed 05/03/2007

Page 10 of 18

I.

for its respective recipients" (App. 336). These.provisions thus recogne. that atoll residents were relocated, and afected, as a
comm~ty, and that unq~e ~o~unity ne:~ exilt which are best
addressed by local

atoll distrbution authonties.3 .. .

Finally, the Section 177 Agreement establihes a Claim
Tribunal for fial adjudication of al clai, to provide "an addi-

. tional long-term mean for compenstig clai" (App. 338). The Ageement aIocates $45.75 mion over 15 year "as necessar for
whole or paral payment of monetar awards" (App. 335). Ih ad-

dition, as distbution to individual atoll authorities comes to a
15,;year period, the Agreement comDDts from that point forward at least 75 percent"of anual Fund
close at the end of the initial

. proceeds, or a pi:ojected $13.5 mion'per year, for clai awards
I"

(App.336). '
The fudig

n . -\¡--;----C
:f
¡¡

I~ il; ill

provided under th substantial and diverse com- .
must, in addition, be weighed against problems

pensation progr

.. ---- of proof faced By appellantsin recoverig on their clai. Dames
& Moore, 453 U.S. at 687. Appellants assert (Br. 50 and n.51) that

-- ----

their claim wi collectively exceed $200 mion, and possibly $300

miion. As the Oai Cour found, however, such clai "involve substantial evidentiar problems." 13 Cl. Ct. at 688 (App. 22).
. These cases are individual actions which have been consolidated
in the Oai Court. Thus, each clalant would individualy need
to prove ownership of specifc

Marhal Islands propert, its valuapaid. Ibid.

tion, and the amount of compensation which should be

These problems ofproof"caot be dicounted." Dames &Moore,
453 U.S. at 687. At least "unti a fial unreviewable judgment is

obtaied," a clai for damges is contingent. Hammond v. United States, 786 F.2d 8; 12 (1st Cir. 1986). Appellants have only an.inchoate ''uatera interest" in the asserted clai. Ruckleshaus v.
Monsanto, 467 U.S. 986, 1005(1984) (quoting:

Webb's FabUlous

Pharmacies, Inc. v. Beckwth, 449 V.S. 155, 161 (1980). .

of over 3,000 people. In addition, Congres, under Sections 103(i), 103(k) and

103(1), has agreed to provde scentic support and fudig to Bik, Rongelap
and Enewetå as needed, for radiologica rehabjItation and resettement (App.

. 840-843).. Fundllg for thes progr wi be in addition to the $150 mion Compensation Fund.
36

. ,

l

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 11 of 18

l

The studies on which appellants base their clai estimates
(Br. 50 n.S1) themselves reflect these difculties. Appellants' fai

maket rental value estite for Bik Atoll for example, is a collective valuation for the entie Atoll, and does not indicate'the'
specifc individual valuation wllch each claimant must prove. , Nor

does it account for the fact that the United States provided substitute land, and other substantial compensation, durig the period
of takg. In addition, the two other cited studies provide es-

timtes, for Enewetak and Rongelap, of varous clean-up and . rehabiltation costs which are irelevant to a tag valuation.36
, Sections 103(i), (k) and (1) of the Compact Act (App. 840-843), and Arcle VI of the Secton 177 Ageement (App. 340), in fact,

provide that resettement costs wi be fuded frm additional appropriations rather than the $150 mion Fud
These studies properly were not considered by the Clai
, 'Court, and

I'

.

need not be evaluated here. The crtica Eoint is that

~----------------~fie Section 177 Agreement provides a reasonable, weU fuded,

_L_
I,
i

and ,appropriate response to the unique consequences of the
nuclear testig program The clai settement negotiated between'th~ United States and Republic of the Marhal

alo well with the range of other international settements to
which cour have grted deference. Shanghai Power Co. v.
United States, 4 0. Ct. at 243-247.' The President in Shanghai

Islands is

i

.1

Power settled priate clai of $144 mion for approxiately $20
miion (id. at 239), whie the most promment of such, settlements,

the Litv6v Asigment, has resulted in payment of less than 10
percent o(c1ai.37 The Section 177 Agreement, by contrt,

36 The cited Rongelap study, in fact, wa not even prepared unti si month
after the Cls Courrs deciion, is not par of

.ji

the record below, and was inered,

by appellants in the Appendi prior to fig their brief. Cour of appeal must,
of course, ignore such ext~record material In re GHB Enerqy Cop., 791 F.2d 1200,1201-202 (5th Cir. 1986); Dieke v. Greene, 729 F.2 957, 959 (4th Cir.

1984) (en bane). .
37 Se~ i 984 Anual Report of

Foreign Cls Settlement Commion, Index

and Table of Completed Progr. Indeed, mos internationa settlements since World War II rested in payment ofles than 38 percent of

the pnncipal amount certed by the Foreign Clais Settement Commision. Ibid. ,

37

I

i.
~,

~:¡

¡

:,

Case 1:06-cv-00289-CCM
,I'

Document 25-8

Filed 05/03/2007

Page 12 of 18

provides a permanent fundig mechaIi to address al nuclear

testg clai. .' ,
I
ly does not effect a tak~gf appellants' clai. Shanghai Co., 4 a. Ct. at 241-247. Th Çour need

, Thus, under the full circutaces of th clai settement,
a court could easily fid that the Section 177 Agreement manest~

Power not, however, ever

reach the takg ise. For, as the Oai Cour held, Congress

may withdraw the UIÛted States' consent to suit under the Tuck-

er Act, and provide an alternative methad of compeJ1tion. 1.3
:~:
.~ll:

O. Ct. at 689 (App. 23). . Where, as here, the Executive has

negotiated, . ànd Congres has approved, a comprehensive 10ng~
term compensation pIa to addres al clai, claits have not

. fli . t~
.'It

l~ ..

ì.~

--11--ii .
¡~
: ~;. ì ),'
¡¡

,rn '

Ibid. .

been deprived of a foru to seek redress. Ibid. As the aai Coun found, ,there is a compellg nead to alow th plan, which ,

in the best judgment of the tWo governents provides the most
appropriate means 'of resolvg: those clai, to rr its course. '

B. Congress, in rating the Compact, property withdrew

. Tucker Act consent to suit. '
. Appellants assert (Br. 3544) that Congres' withdraw~ of jurisdicton or 'consent to suit under the Tucker Act unconstitu~ tionaly deprived them of their just compensation and contrct .
clai. The Supreme Court and th Cours predecessor have

held, however, that Congress has full authority to withdraw the
consent of the United States to suit. Lynch v. United States, 292

II .,
,,

V.S: 571, 582 (1934); Gold Bondholders Protective Council v.
38 Appellants asert (Br. 6465) tht the clai settement violates fiduci
obligations siar to those owed by the United States to Indian tribes under

United States y, Sioux Natin of Indns, 44 U.S. 371 (1980). Whe, as died

in Par IV below, the uuque Indian tr relationship has no application to a
Sioux Nation test. That test holds that as long as the Uiùted States attempts "faiy" and "in good faith" to provide "propert of equialent value," there has been no takg.
Id. at 416, quotig Unued States y. Sioux Nation of Indians, 601 F.2d 1157. 1162
United Nations Trust Teirtoiy, the Section 177 Agrement full meets the

(Ct. CI. 1979). The United States here has proded, and funded, a complex, divers compensation. plan to addr al consquences aring from the nuclear

takg.
r

testig progrm. Under Sioux Nation, the clais settlement has effected no

. 38

q ti:

L

Case 1:06-cv-00289-CCM
i

Document 25-8

Filed 05/03/2007

Page 13 of 18

1

United States, 676 F.2d 643, 646 (Ct.O.), c"ert. denied 459 U.S. 968
(1982). Those cases, relied on by the aai Court in holdig that

the Compact Act valdly withdrew such consent under the Tucker Act, whie providing an alternative ggeans of compensating the
clai aserted here, are dipositive.3

The ~lcrants in Lynch, as appellants here, contended tiiat
an act of Congrss unconstitutionaly depried them of prope~

rights in violation of the Fif Amendment. 292 U.S. at 575.4
The Court held, however, that consent to sue the United States is
a IIpriviege a.ccorded,1I not "the grt of a propert right protected
by the Fif

Amendment." Id. at 581. Congress thus has the power "

I" ,

to withdraw that priviege, a power which (id. at 582, citations
omitted):
applies ale to Causes of action arsing Wider acts of

-------

Congress, and to those aring from some violation of
_'_ __ --~ts conferred uIJon the citien b)' the Constitution.

The character of the cause of acton.. the fact that it is

--!--

in contract as ditiguhed"from tort - may be impártant in determg (as under the Tucker Act) whether

consent to sue was given. Otherwe it is of tt0 sig;"

nicance.
Thus, whie the Court found that Congr~ss could not abrogate the

underlyig obligations of the United States;"(tJhe rue that the . United States may not be sued without its consent is alembracing." Id. at 581, citig Hamton, The Federal~t, No. 81.

39 Whe appellan alo asert (Br.32-33) that Congress may not constitutionaly ~termate" cla, it is the R,public of

the Marha Islads' esousa: and set-

tlement which has extguhed the cI here, as died in Par IV below.
The UIIted States has settled tlose cls, and withdrawn the consent to sue in

United States cour, whie provdig an alterntive mea of compensation, in

implementation of the settement.

40 Appenants here do not speci the constitutional basis for assertg that

Congres depried them of their underlyig propert clais, but alege generaly (Br. 33-4) that Congres "caot constitutionaly foreclose judicial determation" of such clas bywithdraWÛgjurdiction or consent to sue. As noted above,
the complaits do not addres th isue.

39

",:V,.

I

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 14 of 18

j

Whe appellants attempt (Br. 42) to dicount

Lynch because

the Court determed that Congres, under the statute in that
- case, had not withdrwn consent to sue, that cae clearly establihes Congress' broad authority to grant or withdraw such con.
sent. Appellants alo attempt (Br. 42) to ditiguish

Lynch on the

ground that it raied contrct clai, and was not a case "invOlving

Fifh Amendment rights." The Cour held, however, as appellants,
in fact, assert here (Br.34-35nA5), that plaiti' contrct claim

were propert protected by the Just Compensation Qause. 292

U.S. at 579. -

Relying on Lynch, the Court of Claims held in Gold
. )
ì

Bondholders that Congres' withdrawal of consent to sut does not violate constitutional rights, and, in parcular, does not constitute

\,
un _ _~__

In
I

-----

a takg of a propert right in violation of the Fif Am~ndment. 676 F.2d at 64. Rather, the Cour found a "long-established ___power of ~ngress to withdraw its consent to sue the United

'¡
r .-

States.")5ïa.4I- ". n

---

The Supreme Cour has afeQ th priciple in other caes
as well In Schilinger v. United States, i55 u.s. 163-(1894), relied

r it
H

ï
i, !' :~

on in Lynch, the Cour declared, in a Clai Court ca brought
under the Tucker Act allegig an uncoi:tutional takg of

i;

propert, that Congress has the dicretion "to speci the caes and contipgencies in which the liabilty of the Governent is submitted to the court for judicial determation." Id. at 166. See
also Maricopa County v. Valley Natinal Bank o/Phoenix 318 U.S.

357, 362 (1943); Gibbes v. Zimmerman, 290 U.S. 326, 332

(1933).42 ."

41 Appellants conceed in Nitol below that Gold Bondolden is a "case in
which arguably a cour ha refued to hear a constitutiOOal clai on the ground
that Congres has withdrwn consent to sut.. Appellts thus aserted ttat the

case was "wngly decded." - See inN'itl, Pltffs Mem. in Res. to Questions Pose
in the Court's Order of Apr

24, 1987, dated May 29, 1987. On appeal, appel-

lats chacterie that decion as holdig onl tht a statute deprivig plaiti

of a "windfal" doe not deprie them of an constitutiona rights. The Court in Gold Bondlden, however, made no such analys, and broadl held, on the basis
of Lynch, that even as to constitutional claims, "Congres may withdraw its consent to sue the "government at any.

tie." 676 F.2d ~t 646.

42 It should, alo be noted, as the Oais Cour held, tht appellants' cI~s fal with the public rlghts doctre which recognes that the Unite States may40

~'.~

fi-

Case 1:06-cv-00289-CCM
, i

Document 25-8

Filed 05/03/2007

Page 15 of 18

j
i i i i I

I

128 (1872) and

Appellants rely on United States v. Klein, 80 U.S. (13 Wal.) Battaglia v. GenualMotoT' Corp., 169 F.2d 254 (2d

Cir.), cert. denied, 335 U.S. 887 (1948). The Oai Cour cor- ..
rectly found those cases inapposite. 13 a.ct. at 687-688 (App.

21-22). The plaiti in Klein had aleady received a favorable

judgment in the Cour of Oai, whie here no clai have been
rC?duced to judgment, and the Compact provides a Tn'bunal to ad-

judicate those clai. The Cour of Oai in Gold BondholáeT',
I " ! !

in fact, expressly distiguished Klein as irelevant to "the long-established power of Congres to withdraw its consent to sue the
. United States." 676 F.2d at 646. Simarly,

, i

Battaglia involved no

.1 j

!i
~

withdrawal of consent to sue the United States since the cae in-

volved only private pares; nor was there an alternative form of

compensation.43 ,

---- - ---

----

II an ultiate sense, the appellants are quarellg with the
. .unassaiable_nJ:ttio::ÜhaUhe_CongressJJas_exclusi'le_authority_to_.
. defie the judicial power of al

:¡
:!
" f.

~ ,I

lower federal cours, under Arcle

, il, §§ 1 and 8. Amerian Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511

'-ri--

(1828); Ex Parte McCardle, 74 U.S. (7 Wal.) 506 (1869). Arcle
Il § 1 provides that judicial power shal be vested "in one supreme

Cour and in Such inerior Cour as the Congress may from tie ..

to tie.orda and establih." With respect to the Clai Cour, . created under Arcle i, Congre~' authority is plenar. Bee 28 US.C. 172 (1982); S. Rep. 275, 97th Cong., 1st Sess. 7 (1981),
reprited in 1982 U.S. Code Cong. & Ad. News 11, 17. The power

,.

. to establish lower federa cour necessary includes the power to
invest them with lited authority, or to withdraw the consent to

. attch eonditions to its consent to be sued. 13 a. Ct at 687 (App. 21); see Northern Pipeline Co. v. Marathn Prpe Line Co., 458 U.S. 50, 67-76 (1982); .

43 The Supreme Cours'recent deciion in Websterv. Doe, slip op., S.Ct:No.

86-1294 (June 15, 1988), held only' that th~ National S~iity Act does not preclude revew of co~tutiona cIs brought by termated Central Intelligence Agency employees. ¡d. at 10. The only two justices to reach the issue of
whether Congress cottd preclude loWer court review of the claims raed by that

cae held that Congress has such authority. O'Connor, J., dissent at 1; Scaa, J.,

dissent at 5-10. The statUte in Webster provided no alternatie method of com. pensation.

41

~

(I

I.

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 16 of 18

4
j

. How.) 440,448 (1850) .

sut previously granted As stated in Shelton v. Sil, 49, U.S. (8
* * * havig a right to prescrbe, Congres may withhold
from any cour of its creation jurdicton of any of the

enumerated controversies. Cour created by statute
can have no jurdiction but such as the statute coI)ers;

The Constitution has defied the lits of the judicial
power of the United States, but has not prescn'bed how much of it shal be exercised by the Cicuit Court; conseque.ntly, the statute which does prescrbe the lits of

their jurdicton, cannot be in confct with the Constitution, .unless it confers powe~ not enumerated
L

therein.

i '

i- .
t_u

l
f

--

Prior to creation of

the Cour of Oai in 1855, persons with

clai agait the United States petitioned Congress for relief in

_ ------the-f0m1()f'acpiivate-bil. 44 Congress,indetermg-to-eliate
that ad hoc approach, debated whether the new trbunal should . be. a commion which would iierely report its conclusions to

Congress, or a fully independent cour See. The United States
Courtof Claim: A History, 216 Ct. CI. at 13. Congres elected to
establih a permanent Arcle I cour, with lited authority to hear parcuar tyes of clai. That power to create a judicial

I.
I i

I i

method of relief must necessary include the power to withdraw
I

or lit it. The crtical point is that here, as well as a century ago,

Congress has fu authority to speci the foru for compensation,
I.

and may provide such compensation through a judicial foru, by

commion, though clai trbunal adjudication, a private bil, or otherwise.
I

First English Evangelical Lutheran Church v. County of Los
Angeles, 107 S.Ct. 2378, 2386 n.9 (1987),

does not alter that power. There, the Cour held in a footnote that the Fifh Amendment right to compensation is self-actuatig. But that declaration is of no significance to thi litigation uness Congress had declined to provide any means to compensate clai. First English Evangeli44 See P. Bator, P. Mihk, D. Shapiro &.H. Wechsler, The Federal Courts

and the Feçleral System 382 (2d ed. 1973); COwen, The United States Court of
. Claims: A History, Section One 1855. 1887, 216 Ct a. 1 (1978).

42

t I:.
¿

-

Case 1:06-cv-00289-CCM
~
I

Document 25-8

Filed 05/03/2007

Page 17 of 18

I ! cal does not restrct tongressional power to determe,

under par-

ticular circumtaces and needs, what is the most appropriate
method of compensation. As discued below, Congress here, in . ratifing the Compact, has detenned under the complex cir:cumstances presented by the nuclear testing progr that compensation is best provtded though an alternative compensation . program, for which it has appropriated substantial and regenerating fundig, and which meets al constitutional requirements.

J:
i1

C. The Section 177 Ageement provides an alternative
method of compensation which must be aJlowed to
operate as intended to address al claims.

As the Oai Cour held, the Section 177 Agreement does
not deprive appellants of a

foru for their clai. To the contr, "Congres has recogned and protected plaiti' rights to just

compensatio.n for takg and for breach of contract. II 13 Ci. Ct. at

~____-,_____689 (Allll.--3),__The Agreement withdtaws jurJ:ctQn_bY~r appellants' judicial claim whie providing a comprehensive
program ofhealtb care, compensation to loca atoll, and a clai

---

tribunal, al with substantial and contiuig fuding.

Court have fuy recogned, as did the Oal Cour here,
that Congress may establih an alternate basis of compensation for
parcuar clai, and may do so as par of an international clais

settement agreement. Blanchette, v. Connecticut General Ins. 'Corp., 419 U.S. 102, 124, 127,(1974); Dames & Moore v. Regan,
453 U.S. at 689-690. As a general matter, "there must be at the

for obtainingcompensation.'" Blanchette v. Connecticut General Ins. Corp., 419 U.S'-at 124-125, quoting Cherokee Nation v. Southern
tie oftakg 'reasonable, certai and adequate provision

Kansas RR Co., 135 U.S. 641, 659 (1890).

The Clai Cour held tlat the Section 177 Ageement
provides a reasonable ard certai bas of compensation, a hold-

ing appellants do not contest. 13 cc.Ct. at 689 (App. 23). Acknow4,f ledgig the unique needs addressed by the Agreement, and the, ',- ongoing, long-term compensation sttctue created to address
t,re those needs" the cour held that whether the alternative compen~~¡: sation program "is. adequate is dependent upon the amount and

~ ~
¡¡:;'
~~:.:

~, tye of compensation that ultiately is provided through those
r.~i' . procedures." Ibid. The adequacy of the plan thus "canngt be ~,~~

~r . !i,
~-~"

r.

~ ~.
~~,

:j.
., J"..

i.

Case 1:06-cv-00289-CCM

Document 25-8

Filed 05/03/2007

Page 18 of 18

r

detemmed at thiS time," and "canot be chalenged judicialy unti
it has run its course. n Ibid.
Appellants asert (Br. 45-49) that alternative compeI1ation, . of any form may be constitutionaly "adequate" only if the Tuck-

er Act IS held ultitely avaiable to litigate perceived shoi:tfa1. No cour has ever placed such a restrction on alternative claim
settlements, regardless of the parcul¡¡ needs addressed and ,the
specifc term of the progr determed by Congress to most ef-

. fectively resolve those needs. Indeed, appellants substantially overstate the holdigs in Blanchette, Dames & Moore, and Ruckelshaus v. Monsanto, 467 U.S. 986 (1984), as requiring a Tucker.

Act remedy to valdate alternatie compensation program. In
those caes, the Cour held only that, because Congres had
preseIVed an ultiate Tucker Act remedy under the specifc

statutes at ise, the Cour neednot decide whether the Tucker.

-~-

Act

must be avaiable in those cicutaces.45 The Cour cer-

~ ----tainly-cd-not-hold-that-te-'Iek-er-Aet-must-ultiately-be-avai--. able. to sustai any tye of alternative compensation plan as

advoCated here. .

Only Dames & Moore, in fact, concerned a diplomatic clai
settlement, and the alternatie foru provided there took a very
dierent form, and addressed vastly dierent needs, than the Sec-

tion 177 Ageement here. The agreement in that case establihed

a tempora. trbunal to conduct bindig arbitrtion to resolve. .
. clai aring from the 1979 Ir revolution. 453 U.S. at 664665. The trbunal was invested with limted jurdiction, and the
possibilty

remained that certai clai outside that juridiction

might not be adjudicated at' al, and that those claimants would

have no alternatiye foru. As the CoUr stated in Dames &
Moore, ''We are confned to a resolution of the. dipute presênted

to us. * * * We attempt to lay down no general 'guidelies' covering other situations not involved here, and attempt to confe the opinion 'only to the very questions necessar to decision of the case." Id. at 660-661.
In the Section 177 Ageement, by contrast, the United States

. has responded to the complex consequences of the nuclear tes- .
45 See Blanchette, 419 U.S. at 134, 136, 148-149; Dames & M~ore, 453 U.S.

at 688-689; Monsanto, 467 U.S. at 1018. .
44

--