Cook, et al v. Rockwell International, et al

Filing

[10281093] Vacated and Remanded; Terminated on the merits after oral hearing; Written, signed, published; Judges Gorsuch, authoring, Phillips and Moritz, concurring. Mandate to issue. [14-1112]

FILED
Appellate Case: 14-1112

Document: 01019448649

United States Court of Appeals
Date Filed: 06/23/2015 Circuit 1
Tenth Page:

June 23, 2015
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

MERILYN COOK; WILLIAM
SCHIERKOLK, JR.; DELORES
SCHIERKOLK; RICHARD
BARTLETT; SALLY BARTLETT;
LORREN BABB; GERTRUDE BABB,
Plaintiffs - Appellants,
and
MICHAEL DEAN RICE; BANK
WESTERN; THOMAS L. DEIMER;
RHONDA J. DEIMER; STEPHEN
SANDOVAL; PEGGY J.
SANDOVAL,

No. 14-1112

Plaintiffs,
v.
ROCKWELL INTERNATIONAL
CORPORATION; DOW CHEMICAL
COMPANY,
Defendants - Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:90-CV-00181-JLK)

Merrill G. Davidoff of Berger & Montague, P.C., Philadelphia, Pennsylvania
(David F. Sorensen, Jennifer MacNaughton, and Caitlin G. Coslett of Berger &
Montague, P.C., Philadelphia, Pennsylvania, and Gary B. Blum and Steven W.

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Kelly of Silver & DeBoskey, P.C., Denver, Colorado, with him on the briefs), for
Plaintiffs-Appellants.
Christopher Landau of Kirkland & Ellis LLP, Washington, D.C. (Rebecca
Taibleson of Kirkland & Ellis LLP, Washington, D.C., and Kevin T. Van Wart
and Bradley H. Weidenhammer of Kirkland & Ellis LLP, Chicago, Illinois, with
him on the brief), for Defendants-Appellees.

Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.

GORSUCH, Circuit Judge.

Harnessing nuclear energy is a delicate business. So is the statute before
us. Originally passed in the 1950s in an era captivated by the promise of nuclear
power and amended in the 1980s in the aftermath of the Three Mile Island
meltdown when prevailing public sentiment was perhaps less sanguine, the PriceAnderson Act seeks both to promote the private nuclear energy industry and,
simultaneously, to ensure relief for those injured by it. In this appeal, we
consider how far Congress went in reshaping state tort claims involving what the
Act delicately refers to as nuclear “incidents” and “occurrences” — and what our
own prior encounter with this case has to say on the subject.
I
The beginnings of our dispute trace back generations. During the Cold
War, the Rocky Flats plant served as home to a nuclear weapons production
facility. Located just sixteen miles from downtown Denver, the plant was

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operated first by Dow, then by Rockwell, under contracts with the federal
government. But everything ground to a halt in 1989. That’s when FBI agents
raided the plant and unearthed evidence of environmental crimes. It turns out
plant workers had mishandled radioactive waste for years. Some had been poured
into the ground and leached into nearby bodies of water. Some had been released
into the air and filtered its way into the soil throughout the area. As news of all
this emerged, the plant’s neighbors saw their property values plummet. And soon
enough they followed the government’s criminal action with a civil suit of their
own, citing both the federal Price-Anderson Act and state nuisance law as
grounds for relief.
It took a titanic fifteen years for the case to reach a jury. No doubt a
testament to contemporary civil litigation practices that ensure before any trial is
held every stone will be overturned in discovery — even if it means forcing
everyone to endure the sort of staggering delay and (no doubt) equally staggering
expense the parties endured here. Somehow, though, this case managed to
survive the usually lethal gauntlet of pretrial proceedings and stagger its way to
trial. There the jury found for the plaintiffs and the district court approved
roughly $177 million in compensatory damages and $200 million in punitive
damages — as well as $549 million in prejudgment interest, thanks again to all
the pretrial delay.

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That, though, was hardly the end of it. Next the case found its way to
appeal — for the first time. On appeal, the defendants argued that the district
court had failed to instruct the jury properly about the terms of the PriceAnderson Act. Under the Act, any lawsuit asserting liability for a “nuclear
incident” is automatically considered a federal action that can be brought in (or
removed to) federal court. See 42 U.S.C. §§ 2014(w), 2014(hh), 2210(n)(2). And
if that assertion is proven at trial — if the jury finds that a nuclear incident
actually occurred and harmed the plaintiffs — a number of special rules kick in,
including rules limiting the liability of certain defendants and requiring the
government to pay any damages not covered by insurance. See id. § 2210(c)-(e).
Unsurprisingly given these generous financial protections, defendants often have
as much incentive as plaintiffs to accept that any harm they caused stemmed from
a nuclear incident.
But in this particular case Dow and Rockwell made a curious tactical
decision. They argued that the district court’s jury instructions about what
constitutes a nuclear incident were too permissive. To prove that a nuclear
incident has damaged real property the Act requires a plaintiff to show the “loss
of or damage to property, or loss of use of property.” Id. § 2014(q). According
to the defendants, this meant the district court should have required the plaintiffs
to prove at trial physical damage to their property or the loss of a specific,
particularized use of their property — not mere contamination by radioactive
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materials or reduced property values. Of course, in the long run an argument
along these lines promised to restrict the Act’s application, including the benefits
it affords defendants. But in the short run it offered a way to overturn the district
court’s judgment in this case. And Dow and Rockwell leapt at the chance.
The defendants’ tactical decision seemed to pay off. This court agreed that
the district court’s jury instructions about what does and doesn’t qualify as a
nuclear incident were too permissive. On this basis, it vacated the district court’s
judgment and remanded the case for further proceedings in light of the Act’s
correct construction. Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1138-42, 1153
(10th Cir. 2010).
But that’s when things took an interesting turn. Trying their hand at a little
judicial jiu-jitsu, the plaintiffs sought to turn the defendants’ victory against
them. Back before the district court on remand the plaintiffs disclaimed any
effort to prove a nuclear incident for purposes of the Price-Anderson Act. Forget
the Act and the benefits it provides to both sides, they said, we renounce them.
Accepting the premise that they couldn’t prove a nuclear incident — at least as
the term was interpreted by this court — the plaintiffs argued this meant only that
the Act’s liability limiting and indemnification protections fall away, leaving
background state tort law to operate normally. 1 What’s more, the plaintiffs

1

The defendants didn’t (and don’t) challenge this move, and surely would
be judicially estopped from doing so in any event. In the last appeal, they
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submitted, everything needed for a judgment on a state law nuisance claim
already existed. The operative complaint expressly sought relief under Colorado
nuisance law. At trial, the district court instructed the jury on Colorado nuisance
law and the jury returned a state law nuisance verdict in accordance with those
instructions. In the first appeal, this court held that “[t]he jury was properly
instructed on the elements of a nuisance claim.” Id. at 1145. And no one has
ever challenged the sufficiency of the evidence in the record. The state law
nuisance verdict, moreover, was untainted by any error identified in the first
appeal: this court reversed only because of an instructional error concerning
what’s needed to prove a nuclear incident under the Act, not what’s required to
prove a nuisance under Colorado law. So, the plaintiffs argued, all the
ingredients required for a state law nuisance judgment were present and
accounted for and a judgment on that claim should issue forthwith. Perhaps the
defendants’ push in the first appeal for a narrow definition of what qualifies as a
nuclear incident won them the battle, but it lost them the war — failing to

claimed that the plaintiffs couldn’t prove a nuclear incident given the governing
law and the facts of this case. Appellants’ Supplemental Br. at 13, Cook, 618
F.3d 1127 (Nos. 08-1224, 08-1226, 08-1239) (“[P]laintiffs did not and could not
prove their claims of a classwide ‘nuclear incident.’”). So it would be pretty
difficult for them to argue otherwise now: “[A]bsent any good explanation, a
party should not be allowed to gain an advantage by litigation on one theory, and
then seek an inconsistent advantage by pursuing an incompatible theory.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting 18 Charles Alan Wright
et al., Federal Practice and Procedure § 4477, at 782 (1981)).
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eliminate the plaintiffs’ state law claim and serving only to narrow now and in the
future both sides’ ability to secure the benefits of the Price-Anderson Act. 2
This put the defendants in a pickle. Having prevailed on the argument that
this case doesn’t involve a nuclear incident sufficient to implicate the federal
statutory regime, now they had to conjure some reason why entering a judgment
on the existing state law nuisance verdict would be legally impermissible.
Ultimately the defendants settled on two arguments. First, they contended, the
Price-Anderson Act prevents it. While everyone agrees that the Act provides a
federal forum when a nuclear incident is asserted, and that it affords certain
liability protections and guarantees if a nuclear incident is proven, Dow and
Rockwell now suggested the Act does something more and entirely different.
They argued to the district court that the Act also preempts and precludes any
state law recovery where (as here) a nuclear incident is asserted but ultimately
unproven. In this way, the defendants suggested, the Act embodies a sort of gobig-or-go-home rule of liability. If you allege and successfully prove a full-

2

Neither do we doubt that subject matter jurisdiction would exist to
support a state law nuisance judgment, even supposing the Price-Anderson Act’s
grant of federal question jurisdiction dissipated when the plaintiffs gave up their
effort to assert or prove a nuclear incident. After all, the complaint alleged that
the parties were completely diverse and asked for damages in excess of the
statutory minimum. See 28 U.S.C. § 1332 (1988). Likewise, the district court
retained pendent jurisdiction to consider the state law nuisance claim given the
advanced stage of this litigation and the resources it had already consumed. See
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); Russillo v.
Scarborough, 935 F.2d 1167, 1172 n.5 (10th Cir. 1991).
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blown nuclear incident your recovery may be assured by the full faith and credit
of the federal government. But if you allege and then fail to prove a nuclear
incident you are barred from recovery of any kind — even if you can establish a
qualifying state law nuisance. Second, Dow and Rockwell argued that this court’s
mandate in the first appeal independently barred the plaintiffs from securing relief
on their existing state law nuisance verdict. So even if the plaintiffs’ state law
claim isn’t preempted any recovery is just as effectively foreclosed.
Ultimately, the district court sided with the defendants on both points and
so here we are again. This time on the plaintiffs’ appeal asking us to reverse the
district court’s preemption ruling and its holding about the scope of this court’s
mandate.
II
We begin with the preemption question. Preemption can come about in
various ways and it’s no simple thing or our ambition to attempt a complete
taxonomy. Still, it’s fair to say the Supreme Court has distinguished between
“express” preemption (where Congress explicitly indicates its intent to supplant
state law) and “implied” preemption (where some other aspect of a statute is said
to suggest such an intent). See, e.g., Altria Grp., Inc. v. Good, 555 U.S. 70, 76-77
(2008). And it’s fair to say the Court has distinguished between “field”
preemption (where Congress leaves “no room” for state regulation in an entire
area) and “conflict” preemption (where Congress has expressed a more modest
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wish to displace individual state laws standing in the way of federal law).
Arizona v. United States, 132 S. Ct. 2492, 2500-01 (2012).
Of course, these labels “are anything but analytically air-tight.” Laurence
H. Tribe, American Constitutional Law § 6-28, at 1177 (3d ed. 2000). But they
do shed some light on what arguments are — and aren’t — before us. Examining
the defendants’ submissions, it’s clear that Dow and Rockwell fail to invoke
implied preemption doctrine and even appear to disclaim reliance on it. See
Appellees’ Br. 35. Neither do the companies depend on more modest conflict
preemption principles — and potential preemption defenses, like most other
affirmative defenses, are forfeited if not made. See, e.g., Mauldin v. Worldcom,
Inc., 263 F.3d 1205, 1211 (10th Cir. 2001). So the only preemption argument at
issue before us is the suggestion that the Price-Anderson Act expressly preempts
and precludes relief for the field of claims that assert but fail to prove a nuclear
incident. And with our hands now around the parameters of the argument before
us, we can see it quickly encounters two separate and independently dispositive
problems. See Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949).
A
The first problem is a procedural one: the defendants forfeited any
contention along these lines in the first appeal. At that point the plaintiffs had a
judgment in their favor under both state and federal law. The defendants argued
that the federal component of the judgment was infected by instructional error and
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required a remand, but they never suggested a freestanding state tort judgment
would be preempted and precluded. In fact, this court explained that though the
defendants had “allude[d] to field preemption in their brief” in the first appeal,
they “never develop[ed] the issue.” Cook, 618 F.3d at 1143 n.16. And just as it’s
important to raise a preemption defense or risk losing it, it’s important to raise it
in a timely manner. This court has long explained that non-jurisdictional
arguments a party forfeits on appeal “may not be asserted . . . on remand.” Dow
Chem. Corp. v. Weevil-Cide Co., 897 F.2d 481, 486 n.4 (10th Cir. 1990). So it
appears the defendants had no business attempting a field preemption affirmative
defense following the first appeal, and the district court had no business adopting
it. After all, at some point it becomes too late to try out promising new theories,
gangly litigation must be shaped and defined, and finality has to become more
than a faint hope. Maybe especially when it comes to a new defense raised on
remand some twenty-five years after the case began.
Dow and Rockwell don’t dispute these legal principles, only their
application to this case. Whatever the first panel may have said, they insist they
have always presented a field preemption defense to any freestanding state law
nuisance claim, including in the first appeal. The defendants note that the district
court on remand agreed with their self-assessment on this score. But under law of
the case doctrine what governs is the first panel’s holding that the defendants
failed to develop the argument — not the defendants’ or the district court’s
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insistence otherwise on remand — for in our legal order the parties and trial
courts aren’t usually free to revisit issues an appellate court has resolved. Neither
do the defendants attempt to invoke any recognized exception to the doctrine that
might allow us to upset this, the normal order of things. See United States v.
Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998).
Instead, the defendants reply that the first panel spoke at most to an entirely
different line of argument than the one they now seek to raise. According to Dow
and Rockwell, the panel’s holding that they had foregone any field preemption
argument wasn’t directed to the field preemption question they currently wish to
pursue (does the Act preclude any state forms of relief when a nuclear incident is
asserted but unproven?), but to a separate preemption question (when must state
tort law standards of care give way in a claim because they conflict with
particular terms found in the Price-Anderson Act?).
We admit this may not be a frivolous reading of the prior panel’s opinion,
but it is surely an odd one. The term “field preemption,” after all, doesn’t refer to
situations where some specific conflict exists between federal and state rules of
law but to situations where the federal government has so fully occupied an entire
field that no room remains for the operation of state law at all. Conflict on a
grand scale, not a discrete one. See supra at 8-9. Yet under the defendants’
reading of the first panel’s decision we must assume that the panel was confused
about this much and found forfeited a field preemption argument about what is at
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most a conflict preemption question. Unsurprisingly, we are unwilling to give
such an uncharitable gloss to our colleagues’ handiwork and reaffirm the first
panel’s ruling that Dow and Rockwell forfeited any field preemption argument
long ago.
B
Even if we were to overlook this procedural problem a substantive one
would soon emerge for we see no field preemption in the Act of the sort the
defendants describe. When it comes to the preemptive force of the Act the parties
present us with two very different narratives: one entirely familiar, the other
more than a little incongruous. On the plaintiffs’ reading, the Act embodies an
arrangement much like that found in the Class Action Fairness Act and similar
statutes, one in which Congress hasn’t preempted an entire field but provided a
federal forum and certain specific rules for larger cases while allowing smaller
cases more or less to go their own way. See 28 U.S.C. § 1332(d); Estate of Pew
v. Cardarelli, 527 F.3d 25, 26 (2d Cir. 2008). On the defendants’ reading,
meanwhile, the Act guarantees recovery for plaintiffs who plead and prove a
nuclear incident even as it preempts and precludes any recovery for plaintiffs who
plead a nuclear incident but ultimately prove only a lesser state law nuisance. So
on the defendants’ view an affirmative defense (field preemption) is, literally,
complete and effective upon a plaintiff’s mistaken assertion of fact (the existence
of a nuclear incident). Maybe this regime the defendants imagine isn’t
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metaphysically impossible but stating it in concise terms does make you wonder.
A wonder that grows even larger when you consider the defendants’ suggestion
that their affirmative defense would serve to preclude small claims even as the
statute it stems from admittedly guarantees recovery for larger ones.
When confronted with competing preemption narratives like these the
Supreme Court has instructed us to “start with the assumption that the historic
police powers of the States were not to be superseded . . . unless that was the
clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947). So to the extent Congress’s statutory direction is
susceptible to more than one reading, we have the “duty to accept the reading that
disfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449
(2005). A duty that is only “heightened” where (as here) the area of law in
question is one of traditional state regulation like public health and safety. Riegel
v. Medtronic, Inc., 552 U.S. 312, 334 (2008). These presumptions seek to ensure
“that the federal-state balance will not be disturbed unintentionally by Congress
or unnecessarily by the courts.” Id. (quoting Jones v. Rath Packing Co., 430 U.S.
519, 525 (1977)) (internal quotation marks omitted). And applying the traditional
tools of statutory interpretation to the Act before us, it quickly becomes clear that
nothing in its language, structure, or history favors the defendants’ curious
statutory construction over the plaintiffs’ prosaic one — let alone favors it so
clearly that we might overcome the presumption against preemption.
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Start with the text. The Price-Anderson Act applies to “any suit asserting
public liability.” 42 U.S.C. § 2014(hh). It defines “public liability” to mean “any
legal liability arising out of or resulting from a nuclear incident.” Id. § 2014(w).
A “nuclear incident,” meanwhile, refers to “any occurrence” that causes “bodily
injury, sickness, disease, or death, or loss of or damage to property, or loss of use
of property, arising out of or resulting from the radioactive, toxic, explosive, or
other hazardous properties” of nuclear materials. Id. § 2014(q). Together, then,
“a ‘public liability action’ is a suit in which a party asserts that another party
bears any legal liability arising out of an incident in which the hazardous
properties of radioactive material caused bodily injury, sickness, or property
damage.” Cotroneo v. Shaw Env’t & Infrastructure, Inc., 639 F.3d 186, 194 (5th
Cir. 2011). And, as we’ve seen, special rules apply when a party pursues a public
liability action. For starters, the suit is “deemed to be an action arising under”
federal law: not only may plaintiffs file their complaints in federal court, but
defendants may remove any qualifying suit from state court, too. 42 U.S.C.
§ 2014(hh); see id. § 2210(n)(2). If a plaintiff goes beyond merely asserting the
existence of a nuclear incident — actually convincing the factfinder such an
incident took place — the Act proceeds to limit the amount of liability certain
defendants may face and it obligates the government to underwrite certain of
these losses. Id. § 2210(c)-(e). All the while, though, the Act stipulates that state

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law provides the “substantive rules for decision” in the action except to the extent
state law proves “inconsistent” with the terms of § 2210. Id. § 2014(hh).
Where does any of this language — expressly — preempt and preclude all
state law tort recoveries for plaintiffs who plead but do not prove nuclear
incidents? We just don’t see it. Congress knows well how to preempt a field
expressly when it wishes. In the Occupational Safety and Health Act, for
example, it explicitly required states wishing to regulate in the field to submit
their plans for approval by the Secretary of Labor. See Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 111-13 (1992) (Kennedy, J., concurring in part
and concurring in the judgment). There’s just nothing like that in the statutory
text before us.
The defendants insist § 2014(hh) does the job. But, again, that section
merely affords a federal forum when a nuclear incident is “assert[ed]” and
provides a modest form of conflict preemption once the case is underway: normal
state law principles continue to govern unless they conflict with the rules found in
§ 2210. So, for example, once a nuclear incident is proven § 2210(e)’s
limitations on “aggregate public liability for a single nuclear incident” apply,
notwithstanding the availability of greater damages under state law. Nothing in
this language speaks to what happens when a nuclear incident is alleged but
unproven. And certainly nothing in it dictates that injured parties in such

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circumstances are forbidden from seeking or securing traditional state law
remedies.
Surrounding textual features confirm the point. Consider § 2014(q), which
defines the term “nuclear incident” to mean an “occurrence” that causes “bodily
injury, sickness, disease, or death, or loss of or damage to property, or loss of use
of property.” From this language, it’s clear Congress anticipated the possibility
of lesser nuclear “occurrences” that fail to rise to the level of nuclear
“incidents” — it even gave them a name. And in that light, the absence of any
accompanying statutory bar to state tort recovery in cases involving these lesser
“occurrences” takes on an even more deliberate hue. Consider as well § 2014(w),
which defines “public liability” to mean “any legal liability arising out of or
resulting from a nuclear incident.” 42 U.S.C. § 2014(w). From this, it appears
that once injuries sufficient to trigger a nuclear incident finding are proven the
Act contemplates recovery (and liability limitations and indemnification) for
“any” injuries flowing from that incident, even those that aren’t themselves
sufficient to trigger a nuclear incident finding. And it’s hard to conjure a reason
why Congress would allow plaintiffs to recover for a full panoply of injuries in
the event of a large nuclear incident but insist they get nothing for a lesser
nuclear occurrence. Certainly the defendants don’t offer this court any rationale
that might explain such a rule.

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Looking beyond textual clues to take in the larger statutory structure does
nothing to alter our impression. Not only can federal claims for larger nuclear
incidents subject to the Act’s limitations and benefits coexist with state law
claims for lesser nuclear occurrences, they can do so quite sensibly. Larger
occurrences that qualify as nuclear incidents can threaten to bankrupt nuclear
power providers and leave victims un- (or under-) compensated. In these cases,
it’s understandable why Congress might intercede to provide liability caps and
indemnification. Meanwhile, smaller occurrences are less likely to raise the same
concerns, so it’s equally understandable why Congress might not prevent state
law from running its course with respect to them. Our case illustrates the point.
At trial, Dow and Rockwell’s liability for compensatory damages totaled roughly
$177 million. The Act, meanwhile, currently caps federal contractors’ liability
for nuclear incidents at approximately $12.7 billion. See id. § 2210(d)(2),
(e)(1)(B); Adjustment of Indemnification for Inflation, 78 Fed. Reg. 56,868 (Sept.
16, 2013). Indeed, even if we count the $200 million in punitive damages and
$549 million in prejudgment interest — for a total of $926 million — we still
come only 7.29% of the way to the $12.7 billion cap. The claims here thus
simply do not appear to be of the sort that implicate the Act and its textually
manifest concerns related to liability limitation and indemnification.
A study of the Act’s history yields still more evidence pointing in the same
direction. There’s much in that history suggesting Congress passed the Act to
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improve the manageability of complex litigation, to ensure that liabilities arising
from large nuclear incidents don’t shutter the nuclear industry, and to guarantee
compensation for victims who otherwise might be left trying to squeeze damages
out of firms bankrupted by enormous awards. See, e.g., Duke Power Co. v.
Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 64 (1978) (noting that “the risk of
potentially vast liability in the event of a nuclear accident of a sizable magnitude”
motivated Congress to pass the Act (emphasis added)); id. at 83 (“As we read the
Act and its legislative history, it is clear that Congress’ purpose was . . . to
stimulate the private development of electric energy by nuclear power while
simultaneously providing the public compensation in the event of a catastrophic
nuclear incident.” (emphasis added)). Meanwhile, little in the Act’s history
suggests an intent to preclude recovery or inhibit the operation of state tort law in
cases involving lesser nuclear occurrences that don’t give rise to the sorts of
injuries and damages involved in more serious nuclear incidents. Indeed, the
evidence suggests that Congress sought to “minim[ize] interference with State
law” so that “the only interference with State law is . . . in the exceedingly remote
contingency of a nuclear incident giving rise to damages in excess of the amount
of financial responsibility required together with the amount of the governmental
indemnity.” S. Rep. No. 89-1605, at 6 (1966); see also H.R. Rep. No. 100-104,
pt. 1, at 20 (1987).

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The backdrop to the Act’s 1988 amendments is consistent with this
understanding, too. It appears Congress passed those amendments, which
included § 2014(hh), in an effort to smooth and speed the recovery process for
victims after witnessing the aftermath of the Three Mile Island incident, which
resulted in a fair amount of litigation chaos: “over 150 separate cases against
TMI defendants, with over 3,000 claimants, in various state and Federal courts.”
S. Rep. No. 100-218, at 13 (1987). Yet, as one of our colleagues has pointed out,
Dow and Rockwell’s reading of the law (no recovery absent a full-blown nuclear
incident) would have the surprising effect of barring recovery “in the event of a
future accident exactly like Three Mile Island,” because “Three Mile Island does
not appear to have caused” the sort of grave injuries required to establish a
nuclear incident under § 2014(q). Cotroneo, 639 F.3d at 206 (Dennis, J.,
concurring in part and dissenting in part).
Even if nothing in the language, structure, or history of the Price-Anderson
Act allows us to overcome the presumption against preemption and adopt the
defendants’ unlikely reading of the Act, Dow and Rockwell argue Supreme Court
precedent requires us to reach that result all the same. Here they rest heavily on
El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999), a decision in which
the Supreme Court referred to § 2014(hh) as an “unusual preemption provision”
and stated that the Act’s “structure, in which a public liability action becomes a
federal action, but one decided under substantive state-law rules of decision that
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do not conflict with the Price-Anderson Act, resembles what we have spoken of
as ‘complete pre-emption doctrine.’” Id. at 484 & n.6 (citation omitted) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)).
We don’t see anything in these remarks at odds with what we’ve said. As
Neztsosie indicated, the Act’s operation does indeed “resemble” what’s sometimes
called complete preemption. A subspecies of field preemption, complete
preemption arises when Congress affords defendants not only an affirmative
defense against state law claims, but also the right to remove the dispute to
federal court — ensuring that the preemption question itself is decided in a
federal (rather than a state) forum. See Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 6-8 (2003); Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693
F.3d 1195, 1203-04 & n.4 (10th Cir. 2012). And we do have something like that
here: the Act provides a federal forum for cases asserting liability arising out of a
nuclear incident. At the same time, though, Neztsosie was right to suggest that
the Act is “unusual” compared to true complete preemption statutes. For while
the Act provides a federal forum it also does much to preserve state rules of
decision — quite unlike in true complete preemption statutes where federal law
provides the “exclusive cause of action.” Anderson, 539 U.S. at 8. Confirming
the point that ours is not a true complete preemption statute, a few years after
Neztsosie the Supreme Court itself noted that it’s so far encountered only three

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such statutes — and acknowledged the Price-Anderson Act is not among them.
See id. at 8-9.
Without help from the main authority on which they stake their claim in
this appeal, the defendants seek support from other Supreme Court decisions
suggesting that “the federal government has occupied the entire field of nuclear
safety concerns.” Appellees’ Br. 27 (citing PG&E Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 212 (1983); English v. Gen. Elec.
Co., 496 U.S. 72, 82 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249
(1984)). But the panel in the first appeal already explained why and how the
defendants overread these decisions and we see no reason or authority that might
allow us to deviate from its explanation. See Cook, 618 F.3d at 1143-44 & n.17.
As the first panel explained, these cases recognize that Congress has authorized
the federal government alone to promulgate before-the-fact nuclear safety
regulations but — at the same time — has done little to forbid states from
indirectly regulating nuclear safety through the operation of traditional after-thefact tort law remedies. So, for example, in Silkwood the Supreme Court explained
that “Congress’ decision to prohibit the states from regulating the safety aspects
of nuclear development” did nothing to undermine the “ample evidence that
Congress had no intention of forbidding the states from providing [traditional
tort] remedies.” 464 U.S. at 250-51. Indeed, the Court expressly acknowledged
that “the discussion preceding [the Price-Anderson Act’s] enactment and
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subsequent amendment indicates that Congress assumed that persons injured by
nuclear accidents were free to utilize existing state tort law remedies.” Id. at 25152 (footnote omitted). Neither is this arrangement remotely unusual. Often
Congress entrusts before-the-fact regulation to a federal agency while leaving at
least some room for after-the-fact state law tort suits. It has done so in the field
of motor vehicle safety. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861,
867-68 (2000). It has done so in the field of medical devices. See, e.g.,
Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1337-38 (10th Cir. 2015). And all
the statutory evidence before us suggests it has done the same thing here.
Lacking any Supreme Court precedent to support their atextual result, Dow
and Rockwell are left to lean on cases from other circuits. But like Neztsosie,
most of these decisions just don’t address the question before us. One case on
which the defendants place great emphasis simply says that “[t]he PAA is the
exclusive means of compensating victims for any and all claims arising out of
nuclear incidents.” In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1009
(9th Cir. 2007). But precisely no one disputes this beside-the-point point. The
issue before us isn’t what happens in the event of a nuclear incident, but (again)
what happens in the face of a lesser occurrence. A pair of later Ninth Circuit
cases come closer to the mark, holding that “any suit seeking compensation for a
nuclear incident is preempted by the Act.” Dumontier v. Schlumberger Tech.
Corp., 543 F.3d 567, 571 (9th Cir. 2008) (second emphasis added); see also
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Golden v. CH2M Hill Hanford Grp., Inc., 528 F.3d 681, 683-84 (9th Cir. 2008)
(same). But by way of support for this notion they cite only Hanford’s holding
that the Act is the exclusive means of compensating victims of nuclear incidents,
offering nothing to explain how or why the Act might preclude relief in cases
involving lesser occurrences.
Perhaps the only case the defendants cite that much helps them is Cotroneo,
a split decision from the Fifth Circuit. There the majority did find for the
defendants but in doing so failed to identify any provision of the Act that
expressly preempts and precludes state law claims in the absence of a nuclear
incident. Instead, the court reasoned more generally that to allow parties to
recover under state law for lesser occurrences would “circumvent the entire
scheme governing public liability actions.” 639 F.3d at 197. Of course, this
seems a good bit like an implied preemption argument — a suggestion that state
suits offend some underlying statutory policy, not any express statutory
language — and thus an argument Dow and Rockwell appear to have disclaimed
in this appeal. See supra at 9. But even on its own terms, we have as much
difficulty with this argument as Judge Dennis did in dissent, for we fail to discern
how our reading of the Act “circumvents” anything. See Cotroneo, 639 F.3d at
200-02 (Dennis, J., concurring in part and dissenting in part). As we’ve seen,
there’s nothing inconsistent about a statutory scheme that provides federal
jurisdiction over certain claims to ensure their streamlined processing — and that
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includes special rules like liability caps for a subset of those claims involving
nuclear incidents — while permitting claims involving lesser occurrences to
proceed to decision under preexisting state law principles. If anything and again,
it’s the alternative interpretation of the statute — as foreclosing small claims
while guaranteeing larger ones — that appears a good deal less likely in light of
the Act’s language, structure, and history. 3
III
Unpersuaded that the Act preempts and precludes a state law nuisance
claim when a nuclear incident is asserted but unproven, we arrive at the second
question presented in this appeal: does this court’s mandate in the first appeal
require much the same result anyway? On remand, the plaintiffs acknowledged
that this court identified errors of federal law in the district court’s jury
instructions and a judgment under the Price-Anderson Act was no longer possible.
But, they argued, this court identified no error associated with their state law
nuisance verdict and so nothing prevented the district court from entering a new

3

If we were to adopt the defendants’ interpretation of the Act as barring
any recovery in cases involving lesser nuclear occurrences, the plaintiffs contend
we would encounter a serious constitutional problem. As a matter of due process,
they argue, Congress cannot eliminate longstanding common law rights without
providing any “reasonable alternative remedy” unless there is a “compelling”
reason to do so. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 93-94 (1980)
(Marshall, J., concurring). This is of course no trivial argument, but because we
find the defendants’ reading of the statute unconvincing on its own terms it is also
one we happily need not reach or resolve.
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judgment on their state law nuisance verdict standing alone. Dow and Rockwell
replied that, even putting aside their inventive preemption argument, this court’s
mandate in the first appeal precluded the plaintiffs’ proposed course. And, again,
the district court agreed with them. But how might this be? As we’ve seen, the
defendants don’t suggest that the first panel considered the preemption argument
they now offer, adopted it, and ruled the plaintiffs’ state law claim precluded on
this basis: much to the contrary, the defendants insist that this court didn’t
address their field preemption argument in the first appeal. See supra at 11. So
what exactly is it in the first panel’s decision that prohibited the district court on
remand from entering judgment on the plaintiffs’ state law nuisance claim? Dow
and Rockwell offer two theories.
A
They begin by suggesting that the first panel “explicitly disapproved of the
nuisance theory presented at trial under Colorado law.” Appellees’ Br. 44. Here,
then, it turns out we confront a comparatively modest argument about Colorado
state nuisance law and this court’s treatment of it in the first appeal. In the
defendants’ view, the plaintiffs are not entitled to a judgment on the existing
nuisance verdict because this court found the nuisance theory presented at trial
legally erroneous under Colorado law. As modest as it is, though, the argument is
no more successful for it. Far from “disapproving” the plaintiffs’ state law
nuisance theory, the panel in the first appeal held that “[t]he jury was properly
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instructed on the elements of a nuisance claim.” Cook, 618 F.3d at 1145. Just the
opposite of what the defendants contend.
Neither does the defendants’ argument get any better when you try to
untangle its many and stringy particulars. When it came to state nuisance law in
the first appeal, the defendants spent most of their time attacking a district court
pretrial order the parties refer to as Cook IX. See Appellants’ Opening Br. at 4861, Cook, 618 F.3d 1127 (Nos. 08-1224, 08-1226, 08-1239) (citing Cook v.
Rockwell Int’l Corp. (Cook IX), 273 F. Supp. 2d 1175, 1201-08 (D. Colo. 2003)).
In that pretrial order the district court suggested that a plaintiff’s individualized
anxiety or fear might be enough on its own to give rise to a nuisance claim in
Colorado. And this court in the first appeal did indicate that the district court’s
understanding on this point was in error. Cook, 618 F.3d at 1145-46. But by the
time of the first appeal, nothing turned on Cook IX’s pretrial discussion. By then
a trial had taken place and the district court had issued jury instructions on the
elements of Colorado nuisance law. And it’s the law as instructed to the jury, not
the law as discussed in tentative pretrial opinions, that matters. See Lederman v.
Frontier Fire Prot., Inc., 685 F.3d 1151, 1155 (10th Cir. 2012) (explaining that
after trial the relevant inquiry is “whether the jury was misled in any way and
whether it had an understanding of the issues and its duty to decide those issues”
(brackets omitted)).

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When it comes to the consequential jury instructions, moreover, not only
did this court expressly hold them proper, it did so for good reason. The
defendants in the first appeal complained that language in Instructions 3.6 and 3.7
might suggest that “some increased health risk” was enough to sustain a state
nuisance claim. But courts review jury instructions as a whole, not in “artificial
isolation.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). And reading the
instructions as a whole, it’s impossible to understand them as authorizing a
judgment for the plaintiffs based solely on “some increased health risk.” The
district court did tell the jury that increased health risk stemming from the
defendants’ damage to the plaintiffs’ property could constitute a form of
“interfere[nce]” with the plaintiffs’ “use and enjoyment” of their property for
purposes of state nuisance law. But Instruction 3.6 went on to say that the
plaintiffs also had to prove that the degree of the defendants’ interference was
“both ‘unreasonable’ and ‘substantial.’” Instruction 3.9 explained that an
interference is “substantial” only if a “normal person in the community would
find it offensive, annoying or inconvenient.” Instruction 3.10 added that to find
an interference “unreasonable” the plaintiffs had to prove that “the gravity of the
harm outweigh[ed] the utility of the conduct that caused it.” And Instructions
3.11 and 3.12 set forth a series of factors for the jury to balance when conducting
this analysis. Before finding liability, then, the jury had to weigh the overall
social utility of the defendants’ actions from an “objective perspective” and
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couldn’t rely solely on individual plaintiffs’ subjective fears and anxieties or the
possibility of “some” increased health risk. 4 Given this, it is altogether
unsurprising that the first panel held “[t]he jury was properly instructed on the
elements of a nuisance claim as well as the definitions of ‘substantial’ and
‘unreasonable.’” Cook, 618 F.3d at 1145.
At this point you might wonder why the panel in the first appeal bothered
to discuss and disapprove of the incorrect understanding of state nuisance law
found in the Cook IX pretrial order when the panel expressly found the different
formulation of state nuisance law embodied in the operative jury instructions
entirely acceptable. The answer is both simple and sensible: even if the first
panel could’ve avoided some of the issues briefed before it, it judged it “proper to
nonetheless decide questions of law raised in this appeal that are certain to arise
again . . . on remand.” Id. at 1142 n.15. The panel was well aware that the
plaintiffs might ask the district court to apply the more forgiving Cook IX
standard in further proceedings on remand and quite rightly sought to discourage
that possibility, avoid fifteen more years of squabbling, and inch the case toward

4

The only instruction that asked the jury to assess individual plaintiffs’
subjective reactions was Instruction 3.28, which had nothing to do with the
nuisance instructions that appeared in Instructions 3.6 through 3.17. If anything,
its appearance outside the context of the court’s nuisance instructions serves to
underscore its absence inside that context.
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resolution by clarifying the guiding principles for remand on a range of issues the
parties briefed to the court.
So we find ourselves looping back to where we began. This court never
“expressly disapproved” the district court’s Colorado law nuisance instructions.
To the contrary, in the first appeal the defendants never meaningfully challenged
the jury’s instructions on state nuisance law and, in any event, this court
expressly approved them. The only thing disapproved in the first appeal was an
inoperative pretrial order. Neither did Dow and Rockwell dispute that the
evidence presented at trial sufficed to support a common law nuisance verdict
under the legally correct instructions the district court issued to the jury. So
when it came to a state law nuisance claim, by the end of the first appeal there
existed a properly instructed jury, legally sufficient evidence, and a favorable jury
verdict — elements that usually guarantee a judgment for the plaintiffs, not
preclude one. See Lloyd v. Grynberg, 464 F.2d 622, 625 (10th Cir. 1972) (“The
law is clear that an appellate court will not upset or disturb a jury verdict if the
case has been submitted upon proper and adequate instructions and the verdict is
supported by the evidence.”).
B
At this point the defendants hold but one more card to play. They suggest
that, whatever the first panel’s intentions may have been, the language it used in
its mandate barred the district court as a formal matter from entering a state law
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nuisance judgment on the basis of the existing jury verdict. Of course, the
defendants can’t offer any reason why the first panel’s mandate should have
operated this way. For example, they (again) don’t contend that the prior panel
considered the preemption question we’ve addressed and rejected the analysis
we’ve given. And by this point they can’t contend that the first panel found error
in the district court’s nuisance instructions or any other aspect of the nuisance
verdict. So it is that the defendants ask us to suppose that the mandate precluded
entry of a nuisance judgment on remand for no good reason, accidentally even.
We decline this invitation. “The scope of the mandate . . . is carved out by
exclusion: unless the district court’s discretion is specifically cabined, it may
exercise discretion on what may be heard.” Dish Network Corp. v. Arrowood
Indem. Co., 772 F.3d 856, 864 (10th Cir. 2014) (brackets omitted). And
examining the mandate from the first appeal, we see nothing that “specifically”
precluded the district court from entering a new judgment on a common law
nuisance claim on the basis of the existing jury verdict. Rather, after rejecting the
district court’s understanding of what qualifies as a nuclear incident for purposes
of the Price-Anderson Act, the panel’s opinion ended this way: “[T]his court
REVERSES and REMANDS the case to the district court. We DIRECT the
district court to vacate the judgment and conduct further proceedings not
inconsistent with this opinion.” Cook, 618 F.3d at 1153. It opened with identical
language. See id. at 1133. By its plain terms, this language prevented the district
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court from entering a new judgment predicated on any erroneous understanding of
the Price-Anderson Act. But beyond that the mandate didn’t specifically prevent
anything. Indeed, if anything its use of the double negative suggested that the
district court was left with maximum room to maneuver on remand — expressly
allowing the district court to undertake any proceedings “not inconsistent” with
this court’s opinion.
Nothing about this should come as a surprise. After a court of appeals
vacates a judgment a district court on remand often will enter a new judgment in
the same party’s favor on the existing record if one can be had unaffected by the
error found in the appeal. That’s what happened in Dish Network when the
district court entered a new order granting summary judgment after this court
considered and rejected a previous order granting summary judgment on different
grounds. See 772 F.3d at 865-66. That’s what happens all the time after an
appellate court reverses a judgment following a jury trial because of an error
affecting one claim but not others and the district court proceeds to fashion a new
judgment using only the portions of the existing verdict unaffected by that error. 5

5

See, e.g., United States v. Hicks, 146 F.3d 1198, 1200-01 (10th Cir. 1998)
(affirming district court’s entry of judgment on unaffected counts after remand
without necessity of new trial); Reeder-Simco GMC, Inc. v. Volvo GM Heavy
Truck Corp., 497 F.3d 805, 807 (8th Cir. 2007) (recounting district court’s entry
of modified judgment on remand on unaffected claims following reversal by
Supreme Court); O’Hagan v. Soto, 565 F. Supp. 422, 425-26, 429 (S.D.N.Y.
1983) (noting that initial judgment as to question of liability survived subsequent
vacaturs on question of damages); Ponte v. Real, 471 U.S. 491, 503 n.4 (1985)
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We discern no reason why a different result should obtain here, where a judgment
implicating the Act’s protections is no longer possible but all the elements
necessary for a judgment under state law are present and unaffected by any error
identified in the first appeal, or on remand for that matter.
One wrinkle remains — though it’s a wrinkle the defendants don’t pursue
and thus have waived any complaint about. See United States v. Gama-Bastidas,
222 F.3d 779, 784 (10th Cir. 2000) (discussing the non-jurisdictional nature of the
mandate rule). In one spot in the middle of its opinion the first panel explained
its intentions a little differently, writing that “[b]ecause the jury was not properly
instructed on an essential element of Plaintiffs’ PAA claims [the definition of
‘nuclear incident’], the verdict must be set aside and the case remanded for
further proceedings not inconsistent with this opinion.” Cook, 618 F.3d at 1142.
Here alone the panel spoke of setting aside a verdict rather than just the judgment.
But even if the defendants had pursued an argument based on this language, it’s
plain to us that the panel didn’t mean to preclude the entry of a new judgment
based on the existing state law nuisance verdict. The panel referred here only to
the plaintiffs’ “PAA claims” and identified only an error of federal, not state, law

(Stevens, J., concurring in part) (collecting examples where judgment on federal
claim is reversed but state law judgments are permitted to stand); see also Harvey
v. Richards, 11 F. Cas. 740, 745 (C.C.D. Mass. 1814) (Story, J.) (“At common
law, if a plaintiff obtain a judgment in an inferior tribunal, which is reversed in
the appellate court, it is very clear, that the reversal operates no further, than to
nullify the original judgment.”)
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(the lack of a “proper[] instruct[ion]” about the term “nuclear incident”). Id.
There is no suggestion in this discussion or anywhere of an error in the state law
aspects of the jury’s verdict. Indeed, our understanding on this score is
reinforced by the context in which this sentence appears: at the end and as a
summary of the panel’s discussion of the Price-Anderson Act and its nuclear
incident requirement. This discussion is separate from the specifically captioned
discussion of the plaintiffs’ state law nuisance allegations that endorsed the
district court’s jury instructions. Finally, our conclusion is cemented by the
language at either end of the opinion that makes no mention of any error in the
nuisance verdict and discusses only a reversal of the judgment. In discerning the
terms of an earlier court’s mandate, some courts examine the whole of the opinion
and some place particular stress on any language at the end or beginning
summarizing the court’s instructions. 6 Either way, all roads in this case lead to
the same place: a conclusion that the first panel did not specifically preclude the
district court from entering a new judgment predicated on an error-free state law
nuisance verdict.

6

Compare, e.g., Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1217
(6th Cir. 1987) (looking to “the entire opinion of the court”), and Procter &
Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003) (same), with, e.g.,
Hicks v. Gates Rubber Co., 928 F.2d 966, 968-69 (10th Cir. 1991) (focusing on
the final paragraph), and Gibson v. Worley Mills, Inc., 620 F.2d 567, 567 (5th Cir.
1980) (per curiam) (referring to an opinion’s “last paragraph” as “the mandate”).
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C
Our concurring colleague sees a few things differently but, happily, we
agree on the important things. We agree that the Price-Anderson Act does not
preempt and preclude a freestanding state law nuisance claim when a nuclear
incident is alleged but unproven. See supra Part II.B. We agree that the
defendants’ primary mandate argument — suggesting that the first panel expressly
disapproved the plaintiffs’ state law nuisance theory — is mistaken. See supra
Part III.A. We even agree that the first panel’s mandate, as a formal matter, can’t
be read to preclude the entry of a freestanding state law nuisance judgment. See
supra Part III.B. To be sure, our colleague would remand the case for another
trial on the plaintiffs’ state law nuisance claim rather than permit the entry of a
judgment now based on the existing nuisance verdict. But that’s a pretty small
distance between us. It’s a distance, too, that stems only from slight differences
in how we read the first panel’s mandate: as we’ve explained we see nothing in
the mandate specifically precluding entry of a judgment based on the existing
nuisance verdict; the concurrence does, though it reads the mandate as allowing a
second trial on the same claim.
Unfortunately, we cannot close that small gap remaining between us. For
one thing, the concurrence doesn’t explain how we might vacate the district
court’s judgment and send the case back for a new trial when the plaintiffs didn’t
ask for a new trial on remand and don’t now. Neither do we see how we might
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remand for a new trial if, as the concurrence suggests, the plaintiffs’ briefing in
this appeal waived any complaint about the district court’s mandate ruling. After
all, that ruling held the plaintiffs’ state law claims not “pursuable” and, if
unchallenged, it would seem to supply a basis for affirmance, not reversal. For
our part, of course, we do not believe that the plaintiffs waived any complaint
about the district court’s mandate ruling — indeed, the defendants have never
suggested as much, and we are not inclined to pursue an argument for the
defendants that they have not pursued for themselves. See Cook, 618 F.3d at
1138-39. Finally, we just don’t see how the first panel’s mandate “specifically”
prohibited the entry of a judgment based on the existing nuisance verdict. Of
course, the concurrence points to the wrinkle we’ve just discussed — language in
the middle of the opinion suggesting the possibility of setting aside the jury’s
verdict, not just the judgment. But here again the concurrence would have us rest
on a forfeitable argument that Dow and Rockwell haven’t presented. And it
would have us focus on language from the middle of an opinion — without
reference to the language at the opinion’s beginning or end, and without reference
even to language in the surrounding paragraph that discusses errors only in the
application of federal, not state, law. While we are aware of different views on
the question whether an appellate mandate should be read to include only the
formal instructional language at the beginning and end of an opinion or should be
discerned in light of the whole of an opinion, see supra at 33 n.6, we are aware of
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no authority suggesting we should focus only on isolated language in the middle
of an opinion. 7
IV
In the end, Dow and Rockwell appear to have persuaded even the plaintiffs
that this case does not involve a nuclear incident within the meaning of the PriceAnderson Act — at least in light of the statutory construction the defendants

7

Even if the first panel opinion contains no express mandate requiring a
new trial, the concurrence suggests we should draw the same message by
inference from indirect evidence. But as we’ve seen, the mandate rule operates
by exclusion and any avenue a court of appeals does not specifically foreclose
remains available on remand. See supra at 30. Beyond that, we are unable to
agree with the inferences the concurrence draws from the indirect evidence it
cites. The concurrence emphasizes the plaintiffs’ repeated request that we
“reinstate the verdict,” arguing that it shows even the plaintiffs recognize our
prior decision as having overturned the verdict on their state law nuisance claim.
But the plaintiffs have consistently claimed that no error identified in the first
appeal touched their state law claim, that nothing in the Act preempts that claim,
and that there’s nothing stopping a court from entering judgment on it now. We
agree that it would have been more accurate to call this an argument for
“reinstating the judgment based on an error-free verdict” rather than “reinstating
the verdict.” But the plaintiffs’ imprecise wording surely cannot alter the scope
of this court’s mandate (or even obscure the nature of their remedial request).
Neither are we able to agree with the significance the concurrence attaches to the
first panel’s decision not to address certain claims of error because they might not
arise in the event of a new trial. We don’t doubt it’s possible the prior panel
thought it likely the plaintiffs would want to seek the Act’s benefits on remand
and would pursue a new trial under the Act. But a mandate isn’t governed by
what’s in someone’s head; it’s governed by what’s on the page. So an appellate
court’s inability to imagine every tactical decision a party may make months or
years later on remand does not dictate the scope of the mandate written in its
opinion. Neither, of course, did the first panel’s decision to defer certain issues
preclude the defendants from raising them on remand if they really thought them
sufficient to bar entry of judgment on the existing nuisance verdict.
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urged and this court adopted in the first appeal. But that does not mean the
defendants are insulated from any liability — or that the jury’s verdict is a
pointless piece of paper. In two separate appeals spanning many years the
defendants have identified no lawful impediment to the entry of a state law
nuisance judgment on the existing verdict. They have shown no preemption by
federal law, no error in the state law nuisance instructions, no mandate language
specifically precluding this course. No other error of any kind is even now
alleged.
In this light, we can well understand why the plaintiffs on remand
renounced a new trial and sought entry of a judgment based on the existing
nuisance verdict. Indeed, without some specific mandate or identified error
requiring so much we can imagine only injustice flowing from any effort to gin
up the machinery of trial for a second pass over terrain it took fifteen years for
the first trial to mow through. Injustice not only in the needless financial expense
and the waste of judicial resources, but injustice in the human costs associated
with trying to piece together faded memories and long since filed away evidence,
the emotional ordeal parties and witnesses must endure in any retrial, the waste of
the work already performed by a diligent and properly instructed jury, and the
waiting — the waiting everyone would have to endure for a final result in a case
where everyone’s already waited too long, longer even than the lives of today’s
college graduates. When the district court receives this case it should proceed to
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judgment on the existing nuisance verdict promptly, consistent with resolving the
outstanding class action question, wary of arguments that have already been
rejected or forfeited. This long lingering litigation deserves to find resolution
soon. The judgment of the district court is vacated and the case is remanded for
proceedings consistent with this opinion.

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14-1112, Cook et al. v. Rockwell International Corp.
MORITZ, Circuit Judge, concurring in the judgment.
I respectfully concur in the judgment. Unlike the majority, I conclude the panel in
Cook v. Rockwell International Corp., 618 F.3d 1127 (10th Cir. 2010) (Cook I) left no
portion of the jury’s verdict intact, so I would affirm the district court’s determination
that the mandate rule precludes “reinstatement” of any portion of the judgment. But
because the Cook I panel remanded all of the claims before it to the district court, I would
hold that any state law nuisance claims remain pending requiring our consideration of the
district court’s alternative conclusion that the Price-Anderson Act (“PAA”) preempted
any independent state law nuisance claim.
On the PAA issue, I disagree with the majority’s conclusion that the law of the
case doctrine precludes the defendants’ preemption argument. But I agree with the
majority that the PAA does not preempt the plaintiffs’ state law claims. And consistent
with the majority’s ultimate disposition, I would remand this case to district court.
Finally, while the majority holds that an independent state law “verdict” survived Cook I
and on remand the district court can simply reenter judgment on that verdict, I conclude
otherwise. I would place the plaintiffs in the same position on remand as directed by the
Cook I panel—with an opportunity to retry their remaining claim.
The plaintiffs waived any challenge to the district court’s application of the mandate
rule.
Initially, the majority acknowledges that the district court entered alternative
rulings: the PAA preempted the plaintiffs’ claims and, in any event, the mandate rule

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precluded reinstatement of the verdict. Maj. Op. at 8. Yet, the majority later downplays
the defendants’ mandate preclusion argument, referring to it as just another “card to play”
Maj. Op. at 29. But critically, although it is the plaintiffs and not the defendants who
challenge the district court’s ruling this time around, plaintiffs devote less than 50 words
of their 60-page brief to the district court’s alternative ruling. Moreover, their twosentence commentary is confined to a footnote. Aplt. Br. at 25 n.29.
I find this solitary footnote plainly insufficient to challenge the district court’s
application of the mandate rule. See Hill v. Kemp, 478 F.3d 1236, 1255 n.24 (10th Cir.
2007) (refusing to consider arguments raised in footnotes and characterizing them as
“perfunctory”); Hardeman v. City of Albuquerque, 377 F.3d 1106, 1122 (10th Cir. 2004)
(concluding issues raised in a footnote and “unaccompanied by some effort at developed
argumentation are deemed waived” (citation and internal quotation marks omitted)).
Further, because the plaintiffs failed to challenge an independent and alternative ground
for the district court’s decision, I would affirm the district court’s judgment on this issue
without considering plaintiffs’ asserted challenge. See Bones v. Honeywell Int’l, Inc., 366
F.3d 869, 877 (10th Cir. 2004) (refusing to address plaintiff’s challenge to summary
judgment ruling because plaintiff failed to challenge alternative grounds for district
court’s ruling; thus, plaintiff could not prevail even if successful on challenged ruling).
The majority redefines the remedy sought by the plaintiffs.
Even if the plaintiffs’ short footnote adequately challenged the district court’s
alternative ruling, I would uphold the district court’s conclusion that the mandate rule
prohibited it from “reinstating” any freestanding state law nuisance verdict the jury may
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have rendered. But before discussing this issue it is helpful to clarify a confusing aspect
of the majority’s opinion.
In reversing the district court the majority relies on a rationale never argued by the
plaintiffs. In the district court and on appeal, the plaintiffs plainly and consistently
recognized that the Cook I mandate vacated any independent state law nuisance verdict.1
As discussed in-depth below, on this point the plaintiffs and I agree—the Cook I mandate
nullified the entire jury verdict. Where I depart from the plaintiffs’ position is in
considering their argument—made solely in their reply brief—that the district court had
the power to reinstate that verdict.
The majority, however, departs from the plaintiffs’ briefing one step earlier.
Presumably recognizing the flawed nature of the plaintiffs’ assertion, the majority holds
the Cook I panel did not vacate any state law verdict. Instead, according to the majority,
the state law nuisance verdict somehow survived the Cook I panel’s mandate ordering
that “the verdict” be set aside, “the case” reversed and remanded, and “the judgment”
vacated. And, the majority concludes, because that verdict was “unaffected by any error”
found in the appeal, it was poised for the district court to reenter judgment on the verdict
on remand. Maj. Op. at 32.

1

Following this court’s remand in Cook I, the plaintiffs sought “reinstatement of
the jury’s verdict” and then entry of judgment based on that verdict. Jnt. Status Rpt. at 1,
Aug. 7, 2012, ECF No. 2326 (emphasis added). Consistent with that request, on appeal
the plaintiffs’ repeatedly argue for reinstatement of the verdict, not the judgment. Aplt.
Opening Br. at 7, 25, 28, 33, 36, 41, 49 (stating the plaintiffs asked for reinstatement of
the jury verdict and arguing a reinstatement of the jury verdict is possible); Aplt. Reply
Br. at 21, 25, 27, 28 (same).
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While at first glance, this may seem a matter of semantics, the majority’s new
approach is both significant and essential to its ultimate disposition. When this
disposition is coupled with the majority’s direction to “proceed to judgment on the
existing nuisance verdict promptly”—it requires the district court on remand to enter
judgment for the plaintiffs on their state law nuisance claim. Maj. Op. at 37-38.
For the reasons developed below, the district court properly rejected the plaintiffs’
flawed argument. My point here is simply to note that by ignoring their argument and
manufacturing a new one, the majority implicitly rejects the plaintiffs’ only argument on
appeal. Regardless, I have addressed below my reasons for rejecting both the plaintiffs’
argument and the majority’s entirely distinct rationale.
The district court lacked any authority to reinstate a jury verdict vacated by the Cook I
panel.
Setting aside for the moment the majority’s rationale, I find fundamentally flawed
the plaintiffs’ argument that the district court could reinstate a vacated verdict.2 Simply
stated, if the Cook I mandate vacated the verdict (and as discussed in the next section, I
agree that it did), then the district court on remand lacked any authority to enter judgment
on a verdict absent a new trial and new verdict.
The plaintiffs assert that unless the panel’s mandate specifically prohibited
reinstatement of the jury’s verdict, the district court possessed authority to reinstate it. In
2

As previously noted, the plaintiffs’ opening brief contains essentially no
argument regarding the district court’s mandate ruling, resulting in their failure to
challenge that alternative ruling. In their reply brief, plaintiffs argue the vacated verdict
could be reinstated. Generally, arguments not made until a reply brief are waived. See
United States v. Wayne, 591 F.3d 1326, 1336 n.9 (10th Cir. 2010). Nevertheless, I
consider the plaintiffs’ tardy argument in the interest of fully vetting the issues presented.
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support, they rely primarily on authorities that concern resentencing after a remand. See
Aplt. Reply Br. at 26. But the plaintiffs overlook a critical distinction between a vacated
sentence and a vacated jury verdict—namely, the fact-finder on remand. When an
appellate court remands a case for resentencing after vacating a sentence, it’s as if the
sentencing never occurred and the judge, as the arbiter of the resentencing, begins again.
See United States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999). In contrast, when an
appellate court remands a case after vacating a jury verdict, it’s as if the case had never
been tried and the jury, as the arbiter of culpability, decides the outcome. Cf. Wheeler v.
John Deere Co., 935 F.2d 1090, 1096 (10th Cir. 1991) (noting that a prior panel’s
reversal of the verdict meant “the first verdict became null and void in its entirety”).
Tellingly, the plaintiffs cite no authority indicating that after an appellate court nullifies a
jury verdict, a district court can reenter a verdict without the benefit of a jury’s factfinding.
Accordingly, addressing only the challenge arguably raised by the plaintiffs, I
would hold that the district court properly concluded it lacked any power to reinstate a
verdict vacated by this court. See Estate of Whitlock v. C.I.R., 547 F.2d 506, 509-10 (10th
Cir. 1976) (noting a district court is powerless to do anything “contrary to the letter or
spirit of the mandate as construed in light of the opinion deciding the case”).
Neither the record nor the law supports the majority’s novel approach.
Finally, even if the plaintiffs had challenged the district court’s mandate ruling and
had raised the theory now espoused by the majority, I would nevertheless disagree with
the majority’s decision. My core dispute with the majority is simple. The majority
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concludes that when a panel of this court is unaware that claims are before it and does not
affirmatively find error, the panel essentially affirms such verdicts by default and leaves
them in limbo, awaiting only the district court’s blessing through a reentry of some
portion of the judgment. I conclude that when a panel of this court is unaware claims are
before it and makes clear in its opinion that the entire case is remanded for a new trial,
the panel has in fact done what it intended to do—remand the entire case.
The majority’s approach relies upon several faulty presumptions.
Although not readily apparent, much of the majority’s analysis relies upon the
assumption that the verdict rendered by the jury in this case was severable. And the
majority further assumes that when the Cook I panel directed the district court to “vacate
the judgment,” the panel vacated only part of the verdict—i.e., the verdict as it related to
the PAA nuisance and trespass claims. The majority opinion further presumes that the
panel somehow left intact (or “error-free,” as the majority characterizes it) any
independent state law nuisance verdict. Maj. Op. at 30-33. Thus, while the majority
apparently recognizes that a district court has no authority to reinstate a jury’s verdict
once that verdict has been vacated, it declares that wasn’t necessary here because a
portion of the verdict was “unaffected by any error” and the district court merely needed
to reinstate that portion of the judgment. Maj. Op. at 32.
As I’ve noted, the majority’s interpretation of Cook I conflicts even with what the
parties understood the mandate directed. But more critically, nothing in Cook I indicates
the panel found “the verdict” severable or that it intended to affirm or preserve as errorfree any portion of the jury’s verdict. Instead, the language and structure of the opinion,
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which must inform what the mandate directed, leads to the opposite conclusion.3
Cherokee Nation v. Oklahoma, 461 F.2d 674, 677-78 (10th Cir. 1972) (stating a lower
court should look to the opinion itself to “ascertain the intent of the mandate”).
The defendants appealed all of the plaintiffs’ claims.
Before discussing the language in Cook I the majority relies upon in concluding a
portion of the verdict remained error-free, I first consider something not found in the
majority opinion that is essential to understanding the scope of the mandate— i.e., a
discussion of the issues and claims the parties placed before the Cook I panel. That
discussion, of course, begins with consideration of the decision appealed from.
Here, the parties do not dispute that the verdict rendered by the jury on February
14, 2006, included both the PAA claims and state law claims. Nor do they dispute that
the district court granted summary judgment on the entire verdict in its June 2, 2008,
“Final Judgment.” See Final Judgment at 3, Cook I, 618 F.3d 1127 (10th Cir. 2010) (“The
claims for relief as to which final judgment is hereby entered include all claims by
Plaintiffs in this action arising from prospective invasions of their interests in land
pursuant to the Price-Anderson Act, 42 U.S.C. § 2210 [and] Colorado

3

While I endeavor to demonstrate in these few pages why the panel’s direction to
reverse and remand “the case” and “vacate the judgment” was a clear mandate to vacate
the entire verdict, the panel’s opinion speaks for itself and a careful reading of the
opinion best demonstrates this conclusion. In particular, I would direct the reader to the
Cook I panel’s ultimate holding on page 1142 directing the “verdict [] be set aside and the
case remanded for further proceedings not inconsistent with this opinion” and to footnote
15 immediately following the first sentence of the next section, recognizing that all that
follows is dicta, provided for guidance on remand. 618 F.3d at 1142 & n.15.
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law . . . .”(emphasis added)). Similarly, the parties do not dispute that the defendants
appealed from the Final Judgment of June 2, 2008, and that in doing so they expansively
identified that “Judgment” to include any and all claims on which final judgment was
entered. Moreover, the defendants challenged the entire verdict on both state and federal
grounds. Thus, the defendants clearly placed the entire verdict before the Cook I panel,
not just some part of the verdict.
The Cook I panel addressed in dicta some of the issues related to the state law
claims, but did so explicitly and solely for purposes of guidance on remand.
With that understanding, it becomes clear that if, as the majority suggests, the
Cook I panel vacated only a portion of the verdict and somehow left intact severable and
independent verdicts on state law claims, the panel would have been required to reach a
holding on any appellate arguments impacting those verdicts. Instead, the panel did just
the opposite. On page 1142, the panel concludes the binding portion of its opinion with
the following paragraph:
Because the jury was not properly instructed on an essential element of
Plaintiffs’ PAA claims, the verdict must be set aside and the case remanded
for further proceedings not inconsistent with this opinion. 618 F.3d at 1142
(emphasis added).
After reaching this decision, the panel proceeded to consider several additional
issues, including a discussion of substantive state law issues the majority relies on here.
Importantly, the Cook I panel neither suggested nor implied that it considered these
additional issues because they pertained to some portion of the challenged verdict that it
had not disposed of by setting aside “the verdict.” Instead, it explicitly indicated

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otherwise, noting in a footnote following the first sentence of dicta that it provided the
remaining discussion for guidance on remand:
While this court’s ruling that Plaintiffs must establish the existence of a
nuclear incident as a threshold element of their claims independently
warrants remand, it is proper to nonetheless decide questions of law raised
in this appeal that are certain to arise again in the event of a re-trial [sic] in
order to guide the district court. Id. at 1142 n.15 (emphasis added).
Thus, all of the remaining issues the panel chose to address were addressed solely
because they involved questions of law certain to arise on retrial.
The majority makes much of the Cook I panel’s conclusion “expressly” finding the
nuisance jury instructions proper. Maj. Op. at 27. But like everything else that came after
page 24 of Cook I, that discussion was dicta. As such, it was unnecessary to the only
holding in the case—that the jury was not properly instructed on the PAA claim. See
Thompson v. Weyerhaesuer Co., 582 F.3d 1125, 1130 (10th Cir. 2009) (explaining
“dicta” as a statement “not necessarily involved nor essential to the determination of the
case at hand” (citations and internal quotation marks omitted)).
In finding that any verdict on the state law nuisance claim was error-free, the
majority downplays the Cook I panel’s conclusion that the district court erred in Cook v.
Rockwell International Corp., 273 F. Supp. 2d 1175, 1145 (D. Colo. 2003) (Cook IX) by
holding that nuclear material is a nuisance if it “disturbs the plaintiff’s comfort and
convenience, including his peace of mind.” Cook I, 618 F.3d at 1145. The majority
characterizes this finding as inconsequential, reasoning the Cook I panel included it only
because “the plaintiffs might ask the district court to apply the more forgiving Cook IX”
standard on remand. Maj. Op. at 28. In short, because this discussion doesn’t support its
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conclusion regarding an “error-free” state law nuisance verdict, the majority recognizes it
as dicta.
In sum, while the Cook I panel’s dicta didn’t disapprove of the nuisance
instructions, it also plainly didn’t find the trial to have been error-free as to that claim.
The panel left unresolved several issues relating to the state law claims
because they would arise on remand.
The majority’s opinion auspiciously overlooks another critical conclusion in Cook
I confirming the scope of Cook I’s mandate—the panel’s explicit decision to decline to
address significant evidentiary issues raised by the defendants that pertained to the state
law verdicts the majority now says remained error-free. I am referring here to the Cook I
panel’s statement after completing its review of legal issues for guidance purposes:
The court declines to reach Defendants’ evidentiary challenges to Plaintiffs’
trial references to the government’s indemnity obligations or the
Department of Energy’s failure to fully comply with discovery. Because the
case must be remanded on other grounds, the court need not address
whether the district court abused its discretion with respect to evidentiary
issues that may not arise during a new trial. Likewise, the court will not
address Defendants’ challenge to the district court’s post-trial award of
prejudgment interest. This issue may not arise on remand, and if it does,
any error can easily be rectified in a future appeal without necessitating a
new trial. Cook I, 618 F.3d at 1152 (emphasis added).
Unquestionably, the panel here was referring to the defendants’ appeal argument that two
erroneous evidentiary rulings tainted the entire verdict—not just the PAA portion of the
verdict. Specifically, the defendants alleged the district court abused its discretion in
permitting the plaintiffs to point out to the jury “early and often” that the federal
government had an obligation to indemnify Rockwell and Dow. Defendants Br. at 102,
Cook I, 618 F.3d 1127 (10th Cir. 2010) (No. 08-1224). The defendants further asserted
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that the district court erred in repeatedly allowing the plaintiffs to suggest that the federal
government concealed from them and the public evidence indicating the existence of a
problem at Rocky Flats, inculpating the defendants by proxy. Id. at 106-113.
The Cook I panel’s explicit decision to pass on these significant evidentiary
challenges makes sense only if the panel reversed the entire jury verdict. Stated another
way, even if the majority is technically accurate that any state law nuisance verdict was
untainted by any error found in Cook I, that was not because the panel affirmed or
preserved some portion of the verdict as error free. Instead, the panel intentionally
declined to examine all the assertions of error because it had already vacated the entire
verdict and it explicitly elected not to address evidentiary arguments that might not arise
in a new trial.
The plaintiffs’ opportunity to correct the opinion or alter the mandate has
long since passed.
Finally, the majority suggests that a district court on remand can enter judgment
for the same party on different grounds and that “happens all the time.” Maj. Op. at 31.
But in my view, the cases the majority cites have no relevance here. None of those cases
permit a district court, when a jury’s verdict has been vacated and the entire case
remanded for a new trial, to “reinstate” any portion of the verdict. Nor do any of those
cases stand for the proposition that when an appellate court vacates a verdict but
considers for guidance purposes issues that may arise on retrial, a district court may
consider portions of the verdict to which these issues pertain to be error-free.

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Accepting my premise that the Cook I panel vacated the entire verdict, the
plaintiffs’ remedy becomes clear. And this remedy truly is one that parties rely upon all
the time, although it is not a remedy the district court could provide. Rather, if the jury
rendered severable and independent verdicts on the plaintiffs’ state law claims and the
Cook I panel inadvertently or otherwise set aside those verdicts, the plaintiffs had a very
simple means of correcting that misunderstanding and preserving such substantial claims.
Namely, the plaintiffs could have filed a motion for rehearing or clarification of the
mandate before the mandate became final. See Fed. R. App. P. 40(a)(2) (“The petition
[for rehearing] must state with particularity each point of law or fact that the petitioner
believes the court has overlooked . . . .”); 10th Cir. R. 40.1; see also Abel v. West, 932
F.2d 898, 898-99 (10th Cir. 1991) (modifying dispositional language of a prior opinion
on “petition for writ of mandamus or an alternative for clarification of mandate”). Or,
after the mandate became final, they could have filed a motion to amend the mandate.
10th Cir. R. 41.2 (providing for motion to recall mandate).
But the plaintiffs never sought to correct the panel’s decision setting aside the
verdict. Nor did they challenge the panel’s decision to provide only guidance on remand
for some issues and to avoid others despite the relevance of these issues to their state law
claims. Instead, the plaintiffs waited until all of their numerous post-appeal efforts to
reverse Cook I had been exhausted and they had returned to the district court to seek
“reinstatement” of a portion of the jury’s verdict—a remedy the district court was
powerless to provide. See Briggs v. Penn. R.R. Co., 334 U.S. 304, 306 (1948) (discussing

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that absent the aggrieved party successfully “mov[ing] to amend the mandate,” a lower
court is powerless to go beyond the mandate’s terms).
On remand the PAA would not preclude plaintiffs from retrying their state law
nuisance claim.
Because I conclude the Cook I mandate remanding the entire case precluded the
district court from granting the plaintiffs’ request to reinstate the state law verdict, I
would also address whether the defendants’ PAA preemption argument precluded the
nuisance claim from being retried.
In this regard, I disagree with the majority’s initial conclusion that the preemption
issue is controlled by the law of the case. The law of the case doctrine does not apply to
dicta and the Cook I panel’s footnote indicating the defendants had not made a field
preemption argument is dicta. See In re Meridian Reserve, Inc., 87 F.3d 406, 410 (10th
Cir. 1996) (noting dicta is not subject to the law of the case doctrine). Moreover, the law
of the case applies only to an “actual decision.” Wright and Miller, Federal Practice and
Procedure § 4478 (2d ed.). Because the Cook I panel did not pass on whether the PAA
preempts independent state law claims, I would hold the law of the case doctrine does not
apply.
Accordingly, I would reach the issue of the preemptive effect of the PAA. And on
this issue, I agree with the majority’s resolution and I would hold the plaintiffs were not
precluded from retrying their nuisance claim and remand the case for further proceedings.

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Conclusion
The Cook I mandate remanded the entire case for a new trial, leaving no portion of
the jury’s verdict intact. Thus, the district court on remand was powerless to reinstate any
part of that verdict or the judgment on that verdict. While the mandate precluded the
plaintiffs’ desired remedy on remand—i.e., the verdict’s reinstatement—the district
court’s proper rejection of that remedy did not alter the fact that the Cook I panel had
remanded the plaintiffs’ state law nuisance claim and that claim remained pending even
after the plaintiffs dismissed their PAA claims. The potential for retrial of the nuisance
claim requires consideration of the district court’s alternative ruling that the PAA
preempted the plaintiffs’ state law claims. On that issue I disagree with the majority’s
conclusion that the law of the case precluded the defendants’ preemption argument. But
consistent with the majority, I would reject that argument.
In the end, I would remand this case to the district court where the plaintiffs will
be in the same position mandated by the Cook I panel—with the potential to retry their
remaining state law nuisance claim.

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