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04/28/89 Cathelina Antolok, Et Al., v. United States of America

April 28, 1989

CATHELINA ANTOLOK, ET AL., APPELLANTS

v.

UNITED STATES OF AMERICA 1989.CDC.146 DATE DECIDED: APRIL 28, 1989



Before WALD, Chief Judge, and STARR and SENTELLE, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, Civil Action No. 83-02471

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SENTELLE

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion filed by Chief Judge WALD, concurring in judgment only.

Judge Sentelle announced the judgment of the Court in an opinion as to which Judge Starr concurs in all except Part IIB. Chief Judge Wald filed a separate opinion concurring in the result.

SENTELLE, Circuit Judge: Residents and former residents of the northern atolls of the Marshall Islands appeal from a District Court judgment dismissing tort claims arising out of nuclear testing conducted by the United States on those islands. The District Court dismissed these tort claims for lack of justiciability, concluding that the complaint raised non-justiciable political questions. Since we find that the District Court committed no error in its dismissal, we affirm for the reasons set out more fully below. I. BACKGROUND

A. The United States and the Marshall Islands

The relationship between the United States and the Marshall Islands traces to the end of World War II, when the United States liberated the islands from Japan, which had administered them under a League of Nations mandate. From 1944 until July 18, 1947, the United States governed the islands under a temporary military occupation government. On July 18, 1947, the United Nations brought the Marshall Islands and other islands of Micronesia within the U.N. trusteeship system. The United States and the United Nations Security Council approved a trusteeship agreement designating the United States as "administering authority" over a trust territory comprised of the Marshall Islands, the Mariana Islands, and the Caroline Islands, all of which were commonly referred to as Micronesia. Trusteeship Agreement for the Former Japanese Mandated Islands, approved Apr. 2-Jul. 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665. As administering authority, the United States assumed full responsibility for governmental functions of Micronesia, including executive, legislative, and judicial powers, see id., art. 3, and agreed to assist in the development of the Micronesian islanders toward self-government and independence. See id., art. 6; see also United Nations Charter, art. 76(b). Under the Trusteeship Agreement, the United States retained the necessary control and authority over the Marshall Islands to continue nuclear testing begun during the period of military occupation pursuant to the Atomic Energy Act of 1946, Pub. L. No. 79-585, 60 Stat. 755 (1946), as amended by Atomic Energy Act of 1954, Pub. L. No. 83-703, 68 Stat. 919 (1954). Plaintiffs in the present litigation are residents and former residents of the northern Marshall Islands claiming injury to their persons or property by radioactive fallout from the nuclear tests.

During the twenty years following the commencement of the trusteeship arrangement, the Secretary of the Interior, by authority of the President and with the advice and consent of the Senate, appointed a High Commissioner to serve as senior administrator of the trust territory. See Department of Interior Secretarial Order No. 2876, 29 Fed. Reg. 1855 (1964), superseded by Secretarial Order No. 2918, 34 Fed. Reg. 157 (1969). The High Commissioner reviewed both domestic and foreign governmental affairs of the trust territories. In the 1960's, the United States initiated progress toward Micronesian self-government. In 1965 a congress of Micronesia came into being. Elected leaders from throughout the trust territory met to discuss concepts of independence and political unity.

After the Micronesian Congress had considered various options, all parties agreed that cultural and geographic factors dictated a division of the trust territory into four independent governmental units, the Federated States of Micronesia, the Republic of Palau, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands ("RMI" or "Marshall Islands"), the only government whose citizens are plaintiffs in the present litigation. *fn1 The RMI ratified a new constitution by referendum of March 1, 1979, and initiated a parliamentary government on May 1 of the same year. By order of April 25, 1979, the Secretary of the Interior, on behalf of the United States, acknowledged the existence of the governments of the Federated States of Micronesia, the Republic of Palau, and the RMI. *fn2 Secretarial Order No. 3039, 44 Fed. Reg. 28,116 (1979). This order delegated to the new governments most functions of government pending the termination of the trusteeship agreement but, subject to limitations contained in the order, retained in the United States residual authority for trusteeship obligations, including oversight of budget functions and administrative power to "suspend" legislation, amounting to a veto in the High Commissioner, subject to an appeal to the Secretary. Id. at §§ 3-6, 44 Fed. Reg. 28,117-18.

B. The Compact of Free Association

All governments contemplated the evolution of the new entities toward self-governance with a view to the entry of each new government into a Compact of Free Association with the United States. In the case of the RMI, the negotiations leading to the Compact proceeded over the course of the next five years. Much of the negotiation concerned the settlement of nuclear claims giving rise to the present litigation. On June 25, 1983, the two governments executed the final version of the Compact of Free Association, Oct. 1, 1982-Jun. 25, 1983, United States-Micronesia-Marshall Islands, 99 Stat. 1800, T.I.A.S. No. ("Compact"), with an accompanying nuclear testing claims settlement, Agreement for the Implementation of Section 177 of the Compact of Free Association, Jun. 25, 1983, United States-Marshall Islands ("settlement agreement" or "Section 177 Agreement"), reprinted in Joint Appendix 67, which we will discuss below. The RMI approved the Compact including the settlement agreement in a U.N.-monitored plebiscite in September of 1983 by 58 percent vote of the Marshall Islanders.

The President submitted the Compact and settlement agreement to Congress on March 30, 1984. After the 98th Congress failed to complete ratification, the President resubmitted the agreements to the 99th Congress on February 20, 1985. The House of Representatives approved final modified versions on December 11, 1985, and the Senate on December 13, 1985. See Juda v. United States, 13 Cl. Ct. at 673.

On February 18, 1986, the Nitijela, the constitutionally established legislative body of the RMI, enacted the Compact of Free Association Resolution of 1986, Res. No. 62 N.D.-2 (1986), declaring "for purposes of . . . Article V of the Constitution [of the RMI], the Nitijela hereby approves the Compact and its subsidiary agreements, as they relate to the Republic of the Marshall Islands . . . ." Id. § 3.

Thereafter the United States presented the Compact to the Trusteeship Council of the United Nations. On May 29, the Council adopted Resolution 2183 recalling the Trusteeship Agreement and

Not[ing] that the peoples of the . . . Marshall Islands [and the surrounding Micronesian states] have freely exercised their right to self-determination in plebiscites observed by the visiting missions of the Trusteeship Council and have chosen free association with the United States of America . . . [and]

. . . .

Consider[ing] that the Government of the United States, as the Administering Authority, had satisfactorily discharged its obligations under the terms of the Trusteeship Agreement and that it [was] appropriate for that Agreement to be terminated with effect [from the effective date of full entry in the Compact] . . . .

Examination of the annual report of the Administering Authority for the year ended 30 September 1985: Trust Territory of the Pacific Islands. T.C. Res. 2183, 53 U.N. TCOR (1617th mtg). The Resolution further declared the awareness of the Trusteeship Council that the process "of facilitating the progressive development of the peoples in Micronesia toward self-government or independence . . . has been successfully completed." Id. On January 14, 1986, President Reagan signed into law the Compact of Free Association Act of 1985, Pub. L. No. 99-239, 99 Stat. 1770 (1986) (reprinted as amended in 48 U.S.C. § 1681 app. at 624-54 (Supp. IV 1986)) ("Compact Act").

On November 3, 1986, the President declared the Compact of Free Association with the Republic of the Marshall Islands in full force and effect retroactive to October 21, 1986. Proclamation No. 5564, § 3(a), 3 C.F.R. 149 (1987), reprinted in 48 U.S.C. § 1681 app. at 658 (Supp. IV 1986). The United States and the Republic of the Marshall Islands subsequently exchanged diplomatic notes of formal recognition and established diplomatic missions headed by representatives ranked with other ambassadors. Juda, 13 Cl. Ct. at 677.

C. The Present Litigation and the Settlement Agreement

On August 22, 1983, while the Compact and settlement were in negotiation, approximately three thousand present and former residents of the northern Marshall Islands and atolls directly downwind from the nuclear test sites filed the present action in the District Court for the District of Columbia, seeking damages for personal injuries and death resulting from their exposure to dangerous levels of radiation. *fn3 Plaintiffs claimed that the District Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1346 (United States as defendant), claiming liability under the Federal Tort Claims Act, 28 U.S.C. § 2674.

The District Court stayed the action at the request of the United States pending the entry of the two governments into the Compact of Free Association. Then, on motion of the United States, the Court dismissed the action for lack of jurisdiction based on Section 103(g)(1) of the Compact Act and Articles X and XII of the Section 177 Agreement. Section 103(g)(1) expresses the intent of Congress that the provisions of the 177 Agreement constitute a full and final settlement of all claims described in the cited articles of the Agreement and that "any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement." Pub. L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 app. at 629 (Supp. IV 1986)).

The District Court held that the RMI's espousal and settlement of the claims were not reviewable by the courts of the United States and that the Court lacked "jurisdiction over plaintiffs' claims, pursuant to valid law and in conjunction with non-reviewable foreign relations decisions." Antolok v. United States, No. 85-2471, slip op. at 8 (D.D.C. Jun. 16, 1987). It is from this order of dismissal that plaintiffs now appeal. II. ANALYSIS

The United States urges that we should affirm the District Court's dismissal of these claims on two distinct theories, both of which arise out of the terms of the Section 177 Agreement and the Compact Act incorporating that Agreement: first, that the Compact (incorporating the Agreement) and the Act of Congress endorsing the Compact withdrew jurisdiction over these claims in express terms; second, that the challenge to settlement terms negotiated as an integral part of diplomatic recognition of a foreign state raises an unreviewable political question. Upon analysis of the Compact, the incorporated 177 Agreement, and the relevant legislation in light of precedent and other applicable law, we find that the District Court was correct in dismissing these claims for lack of jurisdiction.

A. The Withdrawal of Jurisdiction

In Section 177 of the Compact of Free Association the United States "accept [ed] the responsibility for compensation owing to citizens of the Marshall Islands . . . for loss or damage to property and person . . . resulting from the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958." Compact, § 177(a), 99 Stat. 1812 (reprinted in 48 U.S.C. § 1681 app. at 642 (Supp. IV 1986)), T.I.A.S. No. , at . This Section provided that the two governments, the United States and the Marshall Islands, would set forth in a separate agreement provisions for "just and adequate settlement" of those claims and that the "separate agreement shall came into effect simultaneously with" the Compact. Id. § 177(b). Section 177 (c) provides for a one hundred fifty million dollar grant from the United States to the Marshall Islands for payment and distribution under the separate agreement in satisfaction of those claims. Id. § 177(c).

Article X of the resulting Section 177 Agreement headed "Espousal" provides that the Agreement constitutes full settlement of all the nuclear testing claims, including any then pending or later filed in any court or other judicial or administrative forum "including the courts of the United States and its political subdivisions." Section 177 Agreement, art. X, § 1. Article XII of the Agreement is entitled "United States Courts." That Article reads, in full, as follows:

All claims described in Articles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.

Id., art. XII. *fn4 By its plain language, the Agreement contemplated a divestiture of jurisdiction of the District Court over this subject matter.

Congress recognized as much and indeed required the same in the Compact Act. Section 103(g) of that Act expressly states "the intention of the Congress of the United States that the provisions of section 177 . . . and the [Section 177] Agreement . . . constitute a full and final settlement of all claims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement." Pub. L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 app. at 629 (Supp. IV 1986)).

It would appear obvious from the plain language of the 177 Agreement and the statute that Congress intended the District Court, and in turn this Court, to have no jurisdiction over claims, such as the ones asserted here, encompassed within the settlement agreement. It is axiomatic in our federal jurisprudence that inferior courts, including the District Court and this Court, have only that jurisdiction afforded them by Congress. Article III, Section 1 of the Constitution established the judicial power in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1. In 1850, a unanimous Supreme Court held that

the Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the [inferior] Court[s] ; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.

Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L. Ed. 1147 (1850). The 1850 Court was already able to call upon fifty-one years of precedent for that doctrine. See Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L. Ed. 718 (1799); M'Intire v. Wood, 11 U.S. (7 Cranch) 504, 506, 3 L. Ed. 420 (1813); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619, 9 L. Ed. 1181 (1838); Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L. Ed. 576, 4 A.F.T.R. 4513 (1845). Otherwise put, every court other than the Supreme Court "created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution." Kline v. Burke Constr. Co., 260 U.S. 226, 234, 67 L. Ed. 226, 43 S. Ct. 79 (1922). See also Christianson v. Colt Indus., 486 U.S. 800, 108 S. Ct. 2166, 2178, 100 L. Ed. 2d 811 (1988).

It is simply too late in the day to assert that Congress lacks the power to deprive the inferior federal courts of subject matter jurisdiction over the present claims. The language of the statute and the Agreement are simply too plain to deny that Congress expressed this very intent in the present case.

This power of Congress is particularly plain in the present case, since it involves a matter of sovereign immunity. It is another axiom of our jurisprudence that "the United States may not be sued without its consent." 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3654, at 186 (2d ed. 1985), and authorities collected at note 2. While plaintiffs are correct that the Federal Tort Claims Act, 28 U.S.C. § 1346(b), initially provided a waiver of immunity for this tort action, Congress withdrew their consent for this type of claim in ratifying the Compact and the Section 177 Agreement, providing that "all claims described in Articles X and XI of the Section 177 Agreement . . . [are] terminated and barred except insofar as provided in the Section 177 Agreement." Compact Act, § 103(g)(1), 99 Stat. 1782. As the Claims Court noted in the companion litigation, "[a]n unbroken line of decisions holds that Congress may withdraw its consent to sue the Government at any time." Juda v. United States, 13 Cl. Ct. at 689. Existing authorities clearly support this holding by the Claims Court. In Lynch v. United States, 292 U.S. 571, 78 L. Ed. 1434, 54 S. Ct. 840 (1934), Justice Brandeis, writing for a unanimous Court, stated "consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration." Id. at 581 (citation omitted). While that statement was technically dicta, since the Court held that Congress had not in that case withdrawn consent, id. at 583, there is no indication in any later decision that the dicta is other than an accurate statement of the law. Indeed, in Maricopa County v. Valley Nat'l Bank of Phoenix, 318 U.S. 357, 87 L. Ed. 834, 63 S. Ct. 587 (1943), Justice Douglas, again for a unanimous Court, stated, this time as a holding, that

no . . . suit [against the United States] may be maintained without the consent of the United States. Such consent, though previously granted, has now been withdrawn. And the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations.

Id. at 362 (citing Lynch v. United States, supra).

Plaintiffs' argument against withdrawal of jurisdiction is based on a convoluted interpretation of Section 103(g)(2) of the Compact Act and Article XII of the 177 ...


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