Lindsay Cooper, et al v. Tokyo Electric Power Co.

Filing

FILED OPINION (A. WALLACE TASHIMA, KIM MCLANE WARDLAW and JAY S. BYBEE) AFFIRMED. Judge: JSB Authoring. FILED AND ENTERED JUDGMENT. [10483759]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LINDSAY R. COOPER; JAMES R.
SUTTON; KIM GIESEKING; CHARLES
A. YARRIS; ROBERT M. MILLER;
CHRISTOPHER G. BITTNER; ERIC
MEMBRILA; JUDY GOODWIN;
JENNIFER L. MICKE; JOHN W.
SEELBACH; MAURICE D. ENIS; JAIME
L. PLYM; NATHAN J. PIEKUTOWSKI;
CAROLYN A. WHITE; LOUIE
VIERNES; MICHAEL L. SEBOURN;
K.S., an infant by his father and
natural guardian Michael L.
Sebourn; CHRISTIAN M. EBUENG;
PAUL J. ENCINIAS; DANIEL E. HAIR;
ADAM W. KRUTZLER; DAVID K.
MALONE; ROBERT SELIGMAN; ELOI
A. WHITEMAN; JASON D. HENRY;
NELLIE ALLEN-LOGAN; JAMI
BESCHORNER; NATHAN CANCHE;
NATHAN CRISWELL; JASON TROY
FRIEL; OSCAR GONZALEZ; DAVID
HAHN; JAMES JACKSON; JARRETT
BRADY JOHNSTON; JONATHAN
MEDINA; ADAM MINTZ; MALLORY
K. MORROW; WILLIAM NETHERTON;
MICHELLE ODEN; DONALD RAIRIGH;
CHRISTOPHER RICKARD; ANDREW
RIVERA; STEVEN RAY SIMMONS;
AKEEM SMITH; JUSTIN SPENCER;

No. 15-56424
D.C. No.
3:12-cv-03032JLS-JLB

OPINION

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COOPER V. TOKYO ELECTRIC POWER

ALAN SPURLING; ANGEL TORRES;
JOHN & JANE DOES 1–70,000;
ANTHONY GARCIA; JASMINE ALLEN;
RHONDA ANBERT; SUSAN ASH;
ADAM ARMENTA; JINKY M.A.,
individually and as the
Administrator of the Estate of
Charliemagne T.A.; J.C.A., a minor
by his mother as guardian ad litem
Jinky M.A.; J.A., a minor by his
mother as guardian ad litem Jinky
M.A.; DANA AUSTIN; RENAR AWA;
JOSH BANE; ARAMIS BARRIOS;
TREVOR BECK; MARKUS BEGAY;
JORDAN BENOIT; JORDAN
BETTENCOURT; BRETT A. BINGHAM;
GUNNAR BORTHICK; KENNETH CLEO
BOSWELL; JAMES P. BOWEN;
MATTHEW BRADLEY; NICOLAS
BREWTON; NICOLAUS BROOKS;
RYAN S. BROWN; CASEY
BRUCKLACHER; REBECCA BRUNET;
GERARDO BRUING; ROBIN
CALCATERRA; ROBBY CANLAS;
CARLISI; COURTNEY CARMICHAEL;
MATTHEW CARTWRIGHT; WAYNE
CASSAR; FABIAN CERVANTES;
MELVIN A. CHAMBERLAIN;
TERANCE CHAPMAN; WILLIAM
CHAPMAN, JR.; ANNMARIE
CHESSARI; DAVID CHITWOOD;
GEORGE COBB; LORI LYNN CODY;
KEONDICE W. COOK; ANGELA

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COOPER V. TOKYO ELECTRIC POWER
CRABTREE; CHAD CROFT; BRIAN
CROSS; NICOLAS CROUCH; THOMAS
CULBERSON; VICENT CURCI; HONDA
DAGAN; JAMES DARNELL; JANELLE
DARNELL; JASON DASILVA; JOHN
DAVIS; MARK DECASA; NICHOLE M.
DECATUR; MARTIN DELGARDILLO;
TINA DIBERNARDO; BRANDON
DOCKERY; J. D., a minor by his
father as guardian ad litem Jeremy
D.; JEREMY D.; CHRISTIAN DOERR;
IAN W. DOVE,
Plaintiffs-Appellees,
v.
TOKYO ELECTRIC POWER COMPANY,
INC., AKA TEPCO,
Defendant-Appellant,
SOLICITOR GENERAL OF THE UNITED
STATES OF AMERICA,
Real Party in Interest.

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted September 1, 2016
Pasadena, California
Submission Withdrawn October 26, 2016
Resubmitted June 22, 2017

3

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COOPER V. TOKYO ELECTRIC POWER
Filed June 22, 2017

Before: A. Wallace Tashima, Kim McLane Wardlaw, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee

SUMMARY*

Interlocutory Appeal
The panel affirmed the district court’s denial of Tokyo
Electric Power Company, Inc.’s motion to dismiss a putative
class action brought by members of the U.S. Navy who allege
that they were exposed to radiation when deployed near the
Fukushima Daiichi Nuclear Power Plant as part of Operation
Tomodachi, a relief effort following the 2011 earthquake and
tsunami on Japan’s northeastern coast.
The panel held that Article XIII of the Convention on
Supplementary Compensation for Nuclear Damage (“CSC”)
did not strip U.S. courts of jurisdiction over claims arising out
of nuclear incidents that occurred prior to the CSC’s entry
into force on April 15, 2015.
The panel held that the district court did not abuse its
discretion when it decided to maintain jurisdiction, and did
not dismiss plaintiffs’ claim on international comity grounds.
First, the panel held that the district court did not abuse its
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COOPER V. TOKYO ELECTRIC POWER

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discretion in weighing U.S. and Japanese interests, and in
concluding that the parties’ ties to the United States
outweighed the fact that the alleged negligent conduct
occurred in Japan. The panel noted that Japan has a strong
interest in centralizing jurisdiction over Fukushima Daiichi
Nuclear Power Plant-related claims, and the United States
had a strong interest in maintaining jurisdiction over this in
order to help promote the CSC. Second, the panel held that
the district court did not abuse its discretion in finding that
Japan would provide an adequate alternative forum for
resolving plaintiffs’ claims. Finally, the panel held that
because comity is not a jurisdictional decision, it is a fluid
doctrine, and the district court would be free to revisit the
question should either the facts or the interests of the
governments change.
The panel held that the district court did not abuse its
discretion in declining to dismiss on forum non conveniens
grounds.
The panel held that at this stage in the litigation, it was
unable to undertake the “discriminating inquiry” necessary to
determine if the case presented a political question because
there were outstanding basic factual questions regarding the
Navy’s operations during Operation Tomodachi. The panel
concluded that the political question doctrine did not
currently require dismissal, but Tokyo Electric Power
Company was free to raise the political question doctrine
again, if and when, further developments demonstrated that
a political question was inextricable from the case.
The panel provided no opinion as to whether California’s
firefighter’s rule applied to military servicemembers and, if
so, whether it barred plaintiffs’ claims.

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COOPER V. TOKYO ELECTRIC POWER
COUNSEL

Daniel Paul Collins (argued), Rio S. Pierce, and Gregory P.
Stone, Munger Tolles & Olson LLP, Los Angeles, California;
Bryan H. Heckenlively, Munger Tolles & Olson LLP, San
Francisco, California; for Defendant-Appellant.
Adam Cabral Bonner (argued) and Charles A. Bonner
(argued), Law Offices of Bonner & Bonner, Sausalito,
California; Paul C. Garner (argued), Rancho Mirage,
California; John R. Edwards, Edwards Kirby, Raleigh, North
Carolina; Catherine E. Edwards, Edwards Kirby, Del Mar,
California; for Plaintiffs-Appellees.

OPINION
BYBEE, Circuit Judge:
On March 11, 2011, a 9.0 earthquake and a massive
tsunami struck Japan’s northeastern coast. The United States
participated in a relief effort known as Operation Tomodachi
(Japanese for “friend”). The plaintiffs in this putative class
action lawsuit are members of the U.S. Navy who allege that
they were exposed to radiation when deployed near the
Fukushima Daiichi Nuclear Power Plant (“FNPP”) as part of
Operation Tomodachi. The earthquake and tsunami damaged
the FNPP, causing radiation leaks. Plaintiffs sued Defendant
Tokyo Electric Power Company, Inc. (“TEPCO”), the owner
and operator of the FNPP, in the Southern District of
California for negligence and other causes of action. TEPCO
moved to dismiss the case on the grounds of international
comity, forum non conveniens, the political question doctrine,
and the firefighter’s rule. The district court denied the motion

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COOPER V. TOKYO ELECTRIC POWER

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on all grounds, but certified its order denying TEPCO’s
motion to dismiss for immediate appeal under 28 U.S.C.
§ 1292(b). We agreed to take the interlocutory appeal. At
this interlocutory stage in the proceedings, we affirm the
district court’s denial of TEPCO’s motion to dismiss on all
grounds. Further developments, however, may require the
district court to revisit some of the issues that TEPCO raised
in its motion to dismiss.
I. FACTS AND PROCEDURAL HISTORY
A. The FNPP Meltdown
The March 2011 earthquake and resulting tsunami were
nothing short of devastating.1 Over 15,000 deaths were
reported, and there was immense damage to the region’s
infrastructure. Cleanup efforts continue to this day, over six
years later. One of the most alarming consequences of the
catastrophe was the damage to the FNPP. The incident has
been described as the worst nuclear accident since Chernobyl.
The FNPP consisted of six boiling water reactors. At the time
of the earthquake, only units one through three were in
operation. The earthquake triggered an automatic shutdown
of the three operating units. Water from the tsunami,
however, disabled generators necessary to cool the reactors,
causing the three units to melt down and leak radiation.
Plaintiffs allege that the first meltdown occurred five hours
after the earthquake and that units one through three exploded
that same day. They further allege that over 300 tons of
contaminated water from the FNPP began seeping into the
sea after the meltdown.
1

We take the facts from Plaintiffs’ complaint and, for our purposes,
we assume them to be true.

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COOPER V. TOKYO ELECTRIC POWER

On the afternoon of March 12, the day following the
earthquake, Plaintiffs arrived off the coasts of Fukushima
Prefecture aboard the aircraft carrier U.S.S. Ronald Reagan
and other vessels to provide humanitarian aid. Plaintiffs
allege that TEPCO promulgated false information regarding
the extent of the damage to the FNPP, misleading the public,
Japanese officials, and the U.S. military. They allege that
TEPCO’s management publicly announced that there was no
danger to those participating in Operation Tomodachi, despite
knowing that there was a risk of radiation exposure.
Plaintiffs claim that they and U.S. military officials were
unaware of the extent of the radiation leak and that they
would not have been deployed as close to the FNPP had
TEPCO been forthcoming about the damage. They further
allege that the U.S. military would not ordinarily discover
such radiation absent sufficient warning.
On March 14, two days after their arrival, Plaintiffs allege
that their vessels were repositioned further away from the
FNPP after U.S. officials onboard the U.S.S. Ronald Reagan
detected nuclear contamination in the air and on an aircraft
operating near the FNPP. “Sensitive instruments” aboard the
U.S.S. Ronald Reagan discovered measurable levels of
radioactivity on seventeen aircrew members returning from
relief missions.
In the months following the earthquake, Japan
commissioned the Fukushima Nuclear Accident Independent
Investigation Commission (the “Commission”) to investigate
the incident. The Commission determined that the meltdown
was foreseeable in light of the known tsunami risks in the
region and that TEPCO and the relevant regulatory bodies
failed to take adequate precautions to prevent the incident.
Though the earthquake and tsunami were natural disasters,

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the Commission characterized the FNPP meltdown as a
“manmade” disaster. In 2013, TEPCO also allegedly
admitted that it could have avoided the meltdown.
In an effort to compensate victims of the FNPP meltdown,
the Japanese government developed a comprehensive scheme
to deal with the millions of claims resulting from the FNPP
leak, giving claimants the option to submit a claim directly to
TEPCO, to the newly established Nuclear Damage Claim
Dispute Resolution Center, or to a Japanese court. These
avenues for relief are available to all victims, regardless of
nationality. Over $58 billion has been paid out to victims of
the disaster. Brief of Amicus Curiae the Government of
Japan 1–2, ECF No. 23. The Japanese government has
provided immense financial support to TEPCO to keep
TEPCO solvent. Although Plaintiffs could have pursued their
claims against TEPCO in Japan, they chose to sue in the
United States.
B. District Court Proceedings
Each Plaintiff in the present suit alleges that he or she was
exposed to radiation during Operation Tomodachi. Plaintiffs
request a judgment compelling TEPCO to establish a billiondollar fund to cover continuing medical monitoring costs.
They also request damages, including lost wages, noneconomic damages, and punitive damages.
In Plaintiffs’ First Amended Complaint (“FAC”), they
alleged that TEPCO and the Japanese government conspired
to keep the extent of the radiation leak secret. They further
alleged that “the U.S. Navy was lulled into a false sense of
security,” which led it to deploy Plaintiffs “without doing the
kinds of research and testing that would have verified” the

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extent of the nuclear meltdown. The district court found that
adjudicating this claim would require impermissible scrutiny
of discretionary military judgments and would also require
the court to evaluate communications between the U.S. and
Japanese governments regarding the FNPP. Accordingly, the
district court dismissed the FAC under the political question
doctrine but granted Plaintiffs leave to amend. Cooper v.
Tokyo Elec. Power Co., Inc. (Cooper I), 990 F. Supp. 2d
1035, 1039–42 (S.D. Cal. 2013).
In the Second Amended Complaint (“SAC”), Plaintiffs
removed their conspiracy allegations and relied instead on
allegations that TEPCO was negligent in operating the FNPP
and in reporting the extent of the radiation leak. TEPCO filed
a motion to dismiss, arguing that the SAC still presented a
political question because determining whether TEPCO’s
conduct was the proximate cause of Plaintiffs’ injuries would
require the court to evaluate the Navy’s decision to deploy
troops near the FNPP. TEPCO also argued that, given
Japan’s extensive efforts to compensate FNPP victims, the
SAC should be dismissed under the doctrines of international
comity or forum non conveniens. TEPCO further contended
that the so-called firefighter’s rule, which bars first
responders from suing those who cause the emergency to
which they respond, barred Plaintiffs’ claims.
The district court denied TEPCO’s motion to dismiss.2
Shortly thereafter, TEPCO filed a motion for reconsideration

2
The SAC contained ten causes of action, including claims for
negligence, strict liability, nuisance, and intentional infliction of emotional
distress. The district court granted TEPCO’s motion to dismiss with
respect to Plaintiffs’ claims of design defect and intentional infliction of
emotional distress but let the remaining eight causes of action proceed.

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in light of our opinion in Mujica v. AirScan, Inc., 771 F.3d
580 (9th Cir. 2014), which provided additional guidance to
district courts on how to determine whether to dismiss a case
on international comity grounds. The district court granted
TEPCO’s motion for reconsideration, but again denied
TEPCO’s motion to dismiss. Cooper v. Tokyo Elec. Power
Co., Inc. (Cooper II), 166 F. Supp. 3d 1103 (S.D. Cal. 2015).
The district court concluded that the SAC’s restyling of
Plaintiffs’ claims no longer implicated any political questions
because it focused on TEPCO’s negligence rather than the
military’s decision to deploy troops. Id. at 1117–24. The
district court also rejected TEPCO’s alternative theories for
dismissal. Id. at 1126–28, 1130–40. Per TEPCO’s request,
the district court certified the issues for immediate appeal
under 28 U.S.C. § 1292(b). Id. at 1141–43.
C. Appellate Proceedings
On appeal, TEPCO urges us to reverse the district court’s
determinations regarding international comity, forum non
conveniens, the political question doctrine, and the
firefighter’s rule. The government of Japan, which had
expressed no views on the location of this litigation to the
district court, also filed an amicus brief urging us to reverse
the district court’s decision and order the district court to
dismiss Plaintiffs’ claims so that Plaintiffs can pursue their
claims in Japan. In its brief, the Japanese government
expresses concern that foreign lawsuits such as Plaintiffs’
could threaten the viability of Japan’s continuing efforts to
ensure that all FNPP victims receive fair compensation.
In light of Japan’s brief, we solicited the United States
Department of State’s views on whether this litigation should
proceed in the United States. In response, the United States

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filed an amicus brief arguing that the district court did not err
in allowing Plaintiffs’ claims to proceed for the time being.
Specifically, the United States opines that allowing Plaintiffs’
lawsuit to continue in the United States is consistent with
U.S. efforts to promote the Convention on Supplementary
Compensation for Nuclear Damage (“CSC”).
The parties each filed supplemental briefs in response to
the United States’ position. General Electric Co. (“GE”)3 also
filed an amicus brief responding to the United States’
argument that maintaining jurisdiction will help promote the
CSC. Both TEPCO and GE argue that, although it did not
enter into force until after Plaintiffs’ litigation was already
pending, the CSC strips all U.S. courts of jurisdiction over
claims arising out of the FNPP incident. If correct, TEPCO
and GE’s argument undermines the United States’ position
that maintaining jurisdiction in the United States will help
promote the CSC and provides an independent basis for
dismissing Plaintiffs claims.
II. ANALYSIS
We begin by addressing whether the CSC strips U.S.
courts of jurisdiction over Plaintiffs’ claims.4 We then

3

GE is a defendant in the district court but not a party to this appeal.
Plaintiffs claim that GE is liable for defectively designing the FNPP’s
reactors.
4

GE raised this argument in the district court, but the district court
has yet to rule on it. Because TEPCO and GE’s argument questions our
jurisdiction, we may consider it in the first instance on appeal. See
Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004) (“The
court has a continuing obligation to assess its own subject-matter
jurisdiction . . . .”).

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address TEPCO’s arguments regarding international comity,
forum non conveniens, the political question doctrine, and the
firefighter’s rule.
A. Jurisdiction Under the CSC
The CSC is an attempt to create “a worldwide liability
regime” for dealing with nuclear accidents. Convention on
Supplementary Compensation for Nuclear Damage,
Preamble, opened for signature Sept. 29, 1997, S. Treaty
Doc. No. 107-21 (2002) [hereinafter CSC]. One of the main
goals of such a regime is to control the nuclear energy
industry’s liability exposure, thus ensuring the continuing
viability of the industry, while at the same time ensuring
compensation for victims of nuclear accidents. Prior to the
CSC, there were two major conventions addressing liability
for nuclear accidents: the Paris Convention on Third Party
Liability in the Field of Nuclear Energy of July 1960 and the
Vienna Convention on Civil Liability for Nuclear Damage of
May 1963. Both of these conventions included a number of
provisions aimed at compensating victims of nuclear
accidents while keeping the nuclear energy industry viable,
such as imposing strict liability on operators of nuclear
installations, requiring those operators to maintain insurance
in certain amounts, permitting countries to cap the liability of
nuclear installation operators, requiring countries to fund
compensation for nuclear damage should private insurance be
inadequate, and centralizing jurisdiction over claims arising
out of nuclear incidents in the country where the nuclear
incident occurred. Vienna Convention on Civil Liability for
Nuclear Damage arts. II, V, VII, XI, May 21, 1963, 1063
U.N.T.S. 266; Paris Convention on Third Party Liability in
the Field of Nuclear Energy arts. 6–7, 10, 13, 15, July 29,
1960, 956 U.N.T.S. 251. The United States was not a party

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to either of these conventions, but enacted similar measures
in the Price-Anderson Nuclear Industries Indemnity Act of
1957. See 42 U.S.C. § 2210.
To join the CSC, a country must be a party to the Vienna
or Paris Conventions or have laws (such as the PriceAnderson Act) that meet the requirements set forth in the
CSC’s annex. The CSC builds upon these prior conventions
and national laws by creating an international supplementary
compensation fund for victims of nuclear incidents. Under
the CSC, contracting countries are required to ensure the
availability of a certain amount of funds to compensate
victims of a nuclear incident that occurs within their
territories. CSC art. III. Beyond that amount, the contracting
countries will contribute to a supplemental compensation
fund. Id. Like the Paris and Vienna Conventions, the CSC
also provides that “jurisdiction over actions concerning
nuclear damage from a nuclear incident shall lie only with the
courts of the Contracting Party within which the nuclear
incident occurs.” Id. art. XIII(1).
The CSC was set to enter into force ninety days after “the
date on which at least 5 States with a minimum of 400,000
units of installed nuclear capacity” ratified it. CSC art.
XX(1). The CSC opened for signature on September 29,
1997, at which time the United States signed it. See Int’l
Atomic Energy Agency, Status Report on the Convention on
Supplementary Compensation for Nuclear Damage (2016).
The United States ratified the CSC in May 2008, id., but it
was not until Japan signed and ratified the CSC on January
15, 2015, almost four years after the FNPP incident, that there
were enough parties to put the CSC into effect. Ninety days
later on April 15, 2015, the CSC entered into force, almost
two-and-a-half years after Plaintiffs first filed this suit. Id.

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TEPCO and GE do not argue that the entirety of the CSC
applies to the FNPP incident. Rather, they acknowledge the
general principle that “[u]nless a different intention appears
from the treaty or is otherwise established, its provisions do
not bind a party in relation to any act or fact which took place
or any situation which ceased to exist before the date of the
entry into force of the treaty with respect to that party.”
Vienna Convention on the Law of Treaties art. 28, May 23,
1969, 1155 U.N.T.S. 331.5 Based on this principle, TEPCO
and GE accept that the CSC’s supplemental fund is
unavailable for nuclear incidents occurring before the CSC’s
entry into force, including the FNPP incident. Appellant’s
Opening Brief 28, ECF No. 14; Appellant’s Supplementary
Brief 10, ECF No. 98; Brief of Amicus Curiae GE 11, ECF
No. 96. TEPCO and GE maintain, however, that Article
XIII’s mandate that “jurisdiction over actions concerning
nuclear damage from a nuclear incident shall lie only with the
courts of the Contracting Party within which the nuclear
incident occurs” applies to cases pending before the CSC
entered into force.
This is so, TEPCO and GE argue, because jurisdictional
provisions are not subject to limits on retroactive application.
In support of this contention, TEPCO and GE cite a long list
of cases explaining that jurisdictional provisions do not
retroactively alter substantive rights, but only alter where
plaintiffs can go to obtain prospective relief. Accordingly,

5

Although the United States is not a party to the Vienna Convention
on the Law of Treaties, it acknowledges the non-retroactivity principle as
an element of customary international law. United States’ Brief 13 n.5,
ECF No. 81; see Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir. 2008)
(“The Department of State considers the Vienna Convention on the Law
of Treaties an authoritative guide to current treaty law and practice.”).

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TEPCO and GE argue that jurisdiction-stripping provisions
such as the one at issue here presumptively apply to pending
cases. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244,
274 (1994) (“We have regularly applied intervening statutes
conferring or ousting jurisdiction, whether or not jurisdiction
lay when the underlying conduct occurred or when the suit
was filed. . . . Application of a new jurisdictional rule usually
‘takes away no substantive right but simply changes the
tribunal that is to hear the case.’” (citation omitted)); Bruner
v. United States, 343 U.S. 112, 116–17 (1952) (“This
rule—that, when a law conferring jurisdiction is repealed
without any reservation as to pending cases, all cases fall with
the law—has been adhered to consistently by this Court.”);
Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996) (“The
Supreme Court has long held that ‘when a law conferring
jurisdiction is repealed without any reservation as to pending
cases, all cases fall within the law.’” (citation omitted)).
TEPCO and GE also argue that the same principle applies to
jurisdictional provisions in treaties. See, e.g., Third Report on
the Law of Treaties, [1964] 2 Y.B. Int’l L. Comm’n 11, U.N.
Doc. A/CN.4/167 (suggesting that certain jurisdictional
provisions in treaties apply to any “dispute which exists
between the parties after the coming into force of the treaty”
regardless of whether “the dispute concerns events which
took place prior to that date.”). In short, because the courts
of Japan are undisputedly open to Plaintiffs, and because
Article XIII makes no reservation as to pending cases,
TEPCO and GE argue that the CSC strips us of jurisdiction
over Plaintiffs’ claims.
We find this argument plausible, but ultimately
unpersuasive. Although jurisdictional provisions can and
often do apply to cases already pending when those
provisions go into effect, it is not true that we always apply

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new jurisdictional provisions to pending cases. Rather, we
look at the jurisdiction-stripping provision in the context of
the statute or treaty at issue, applying normal canons of
construction, to determine if the provision should apply to
pending cases. Hamdan v. Rumsfeld, 548 U.S. 557, 577
(2006) (“[Not] all jurisdiction-stripping provisions—or even
all such provisions that truly lack retroactive effect—must
apply to cases pending at the time of their enactment.
‘[N]ormal rules of construction,’ including a contextual
reading of the statutory language, may dictate otherwise.”
(second alteration in original) (citation omitted)); Lindh v.
Murphy, 521 U.S. 320, 326 (1997) (“In determining whether
a statute’s terms would produce a retroactive effect, however,
and in determining a statute’s temporal reach generally, our
normal rules of construction apply.”); see also Sumitomo
Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180 (1982) (“The
clear import of treaty language controls unless ‘application of
the words of the treaty according to their obvious meaning
effects a result inconsistent with the intent or expectations of
its signatories.’” (citation omitted)).
Applying normal rules of construction to Article XIII, we
do not believe that it strips U.S. courts of jurisdiction over
claims arising out of nuclear incidents that occurred prior to
the CSC’s entry into force.6 Two things bring us to this

6

For purposes of this analysis, we will assume that Article XIII is
self-executing. See Medellin v. Texas, 552 U.S. 491, 505–06 (2008)
(explaining that a treaty “ordinarily ‘depends for the enforcement of its
provisions on the interest and the honor of the governments which are
parties to it,’” but that some treaties “contain[] stipulations which are selfexecuting, that is, . . . they have the force and effect of a legislative
enactment” (citation omitted)); Letter of Submittal for the Convention on
Supplementary Compensation for Nuclear Damage at XV, August 7,
2001, S. Treaty Doc. No. 107-21 (“As with similar jurisdictional

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conclusion. First, starting with Article XIII’s text, we find it
informative that the CSC gives exclusive jurisdiction to “the
courts of the Contracting Party within which the nuclear
incident occurs.” CSC art. XIII(1) (emphasis added). The
use of the present tense suggests that the provision applies to
future nuclear incidents and does not include past incidents.
One would expect the drafters to have used the past tense had
they intended to alter jurisdiction over claims arising out of
nuclear incidents that occurred before the CSC’s entry into
force. Other paragraphs within Article XIII also use the
present tense, similarly indicating that Article XIII refers only
to claims arising out of future nuclear incidents. See id. art.
XIII(2) (“Where a nuclear incident occurs within the area of
the exclusive economic zone of a Contracting Party[,] . . .
jurisdiction over actions concerning nuclear damage from that
nuclear incident shall, for the purposes of this Convention, lie
only with the courts of that Party.” (emphasis added)); id. art.
XIII(3) (“Where a nuclear incident does not occur within the
territory of any Contracting Party[,] . . . jurisdiction over
actions concerning nuclear damage from the nuclear incident
shall lie only with the courts of the Installation State.”
(emphasis added)).7
provisions in earlier treaties submitted to the Senate for advice and
consent to ratification, it is anticipated that the provisions of Article XIII
would be applied without the need for further implementing legislation.”).
Because we conclude that, in any event, Article XIII does not apply to
claims arising out of the FNPP incident, we need not decide this issue.
7

TEPCO and GE counter that versions of the CSC in other languages,
which are equally authentic, see CSC art. XXVII, use different verb
tenses. The Spanish text, for example, uses the phrase “haya ocurrido.”
“Haya” is the present subjunctive form of the Spanish verb “haber,” which
in English means “to have.” As TEPCO and GE note, the phrase “haya
ocurrido” means “has occurred.” In other words, the Spanish text grants
jurisdiction to the courts of the country where the nuclear incident “has

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Second, the CSC’s overall framework also supports our
conclusion that Article XIII does not apply to claims arising
out of nuclear incidents that precede the CSC’s entry into
force because we view the promise of exclusive jurisdiction
as a quid pro quo for establishing a compensation fund. To
accept TEPCO and GE’s argument that the CSC’s
jurisdictional provision applies to the current case, we would
have to view Article XIII as a stand-alone provision,
independent of the CSC’s remaining provisions, to centralize
jurisdiction over nuclear damage claims in a single country.
We cannot fairly construe the CSC in this manner. Article
XIII is but one component of the compensation scheme
created in the CSC. The CSC’s title—The Convention on
Supplementary Compensation for Nuclear Damage—suggests
what the remainder of the document makes clear: the CSC is,
first and foremost, concerned with creating an international
backstop for funding claims by victims of nuclear incidents.
occurred,” not where it “occurs.” TEPCO and GE suggest that this
difference precludes us from giving much weight to the English text’s use
of the present tense.
We think that TEPCO and GE’s reliance on the Spanish text is
misplaced. The Spanish text’s use of the phrase “haya ocurrido”—a
subjunctive form that conveys a mood of indeterminancy that has no direct
English counterpart—does not necessarily suggest that the CSC’s
jurisdictional provision encompasses pre-existing nuclear incidents. Even
if the CSC used the past tense and limited jurisdiction to “the courts of the
Contracting Party within which the nuclear incident occurred,” that would
not answer the question at issue here. In that case, the use of the past
tense only shows the temporal relationship between the nuclear accident
and the lawsuit, the former obviously preceding the latter. But this
wording leaves open the question whether the nuclear accident had to
occur after the CSC’s entry into force for the provision to apply. Even if
other languages make the answer to that question ambiguous, our second
point above compels our conclusion that the CSC only applies to nuclear
incidents occurring after the CSC’s entry into force.

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The “Purpose and Application” section reinforces that “[t]he
purpose of this Convention is to supplement the system of
compensation provided pursuant to” the Vienna and Paris
Conventions and national laws such as the Price-Anderson
Act. CSC art. II(1). To carry out its goal, the CSC creates
what the CSC itself refers to as a “system,” id. art. II(2), or a
“worldwide liability regime,” id., Preamble. Nothing in the
CSC suggests that one component of that system, such as the
jurisdictional provision at issue here, would apply when the
entire system does not. The jurisdictional provision is not
independent of the compensation scheme, but is part of the
mechanism for effectuating that scheme.
Other provisions of the CSC confirm our reading that
Article XIII is not an independent agreement to centralize
litigation from a nuclear accident in a single country, but a
mechanism for administering the supplemental compensation
fund. A country whose courts have jurisdiction under Article
XIII obtains certain rights and responsibilities. Specifically,
“the Contracting party whose courts have jurisdiction shall
inform the other Contracting Parties of a nuclear incident as
soon as it appears that” domestic funds may be insufficient to
compensate victims. Id. art. VI. Once domestic funds are
exhausted, “the Contracting Party whose courts have
jurisdiction shall request the other Contracting Parties to
make available” the supplemental compensation fund, and
“the Contracting Party whose courts have jurisdiction” has
“exclusive competence to disburse such funds.” Id. art.
VII(1); see also id. art. X(1) (“The system of disbursement by
which the [supplemental funds] are to be made available and
the system of apportionment thereof shall be that of the
Contracting Party whose courts have jurisdiction.”). “The
Contracting party whose courts have jurisdiction” may also
exercise certain rights of recourse under the CSC. Id. art.

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IX(3). Article XIII is more than just an agreement to
centralize jurisdiction in one country; it is integral to the
CSC’s overall “system” for implementing the supplemental
fund.
Our interpretation of Article XIII also finds support in a
letter from Secretary of State Colin Powell submitting the
CSC to President George W. Bush. That letter provides an
article-by-article explanation of the CSC. It explains that the
CSC “requires that all claims resulting from a covered
nuclear incident be adjudicated in a single forum.” Letter of
Submittal for the Convention on Supplementary
Compensation for Nuclear Damage at VII, Aug. 7, 2001, S.
Treaty Doc. No. 107-21 [hereinafter Letter of Submittal]
(emphasis added). It further provides that “after the United
States deposits its instrument of ratification to the CSC, the
effect of Article XIII will be to remove jurisdiction from all
U.S. Federal and State courts over cases concerning nuclear
damage from a nuclear incident covered by the CSC except to
the extent provided in the CSC.” Id. at XV (emphasis added);
see also id. at XIV (“Article XIII determines which Party’s
courts shall have jurisdiction over claims brought under the
CSC . . . .” (emphasis added)). In our view, the phrases
“covered nuclear incident” and “nuclear incident covered by
the CSC” most logically refer to nuclear incidents subject to
all of the CSC’s terms, and in particular to nuclear incidents
that are eligible for the supplemental compensation fund.
Thus, the United States’ view at the time of ratification
appears to be that Article XIII applies only to nuclear
incidents occurring after the CSC’s entry into force. That is
also the view that the United States expresses in its amicus

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brief. We owe deference to this view.8 Sumitomo Shoji Am.,
Inc., 457 U.S. at 184–85 (“Although not conclusive, the
meaning attributed to treaty provisions by the Government
agencies charged with their negotiation and enforcement is
entitled to great weight.”).
The CSC’s text, structure, and ratification history dictate
that Article XIII’s jurisdiction-stripping provision applies
only to claims arising out of nuclear incidents occurring after
the CSC’s entry into force. We conclude, therefore, that the
CSC does not strip us of jurisdiction over Plaintiffs’ claims.
B. International Comity
TEPCO next contends that the district court erred by not
dismissing Plaintiffs’ claims on comity grounds. We review
the district court’s international comity determination for an
abuse of discretion and will reverse only if the district court
applies an incorrect legal standard or if its “application of the
correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or
(3) without ‘support in inferences that may be drawn from the
facts in the record.’” Mujica v. AirScan Inc., 771 F.3d 580,
589 (9th Cir. 2014) (quoting United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).

8

We also note that Japan filed an amicus brief in this appeal urging
the court to dismiss Plaintiffs’ claims, but did not cite the CSC as a basis
for that request. The amicus brief was filed in February 2016, almost one
year after the CSC’s entry into force. Presumably, had Japan felt entitled
to exclusive jurisdiction over Plaintiffs’ claims pursuant to the CSC, it
would have said so. “When the parties to a treaty both agree as to the
meaning of a treaty provision, and that interpretation follows from the
clear treaty language, we must, absent extraordinarily strong contrary
evidence, defer to that interpretation.” Sumitomo Shoji Am., Inc., 457 U.S.
at 185.

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“International comity ‘is the recognition which one nation
allows within its territory to the legislative, executive or
judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its
own citizens or of other persons who are under the protection
of its laws.’” Id. at 597 (quoting In re Simon, 153 F.3d 991,
998 (9th Cir. 1998)). There are two kinds of international
comity: prescriptive comity (addressing the “extraterritorial
reach of federal statutes”) and adjudicative comity (a
“discretionary act of deference by a national court to decline
to exercise jurisdiction in a case properly adjudicated in a
foreign state”). Id. at 598–99. This case concerns the latter.
District courts deciding whether to dismiss a case on
comity grounds are to weigh (1) “the strength of the United
States’ interest in using a foreign forum,” (2) “the strength of
the foreign governments’ interests,” and (3) “the adequacy of
the alternative forum.” Id. at 603 (quoting Ungaro-Benages
v. Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. 2004)).
Here, the district court correctly laid out this legal standard,
and the only question is whether the district court’s decision
not to dismiss Plaintiffs’ claims was illogical, implausible, or
unsupported by the record. Although this is a close case with
competing policy interests, we hold that the district court did
not abuse its discretion in deciding to maintain jurisdiction.
For our convenience, we will discuss together the interests of
the United States and Japan. We then consider the adequacy
of a Japanese forum.
1. U.S. and Japanese interests
In Mujica, we expounded on how to assess the United
States’ and foreign governments’ interests:

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The (nonexclusive) factors we should
consider when assessing [each country’s]
interests include (1) the location of the
conduct in question, (2) the nationality of the
parties, (3) the character of the conduct in
question, (4) the foreign policy interests of the
[countries], and (5) any public policy
interests.

Id. at 604, 607. The district court determined that because the
FNPP incident occurred in Japan, Japan has a strong interest
in this litigation. On the other hand, the district court
reasoned that Plaintiffs are U.S. servicemembers, suggesting
that the United States also has an interest in this litigation. In
balancing the first two factors, the district court concluded
that the parties’ ties to the United States outweighed the fact
that the allegedly negligent conduct occurred Japan. We
agree with the district court that, at least with respect to the
first two factors, there are competing interests. Under these
facts, we find these considerations not particularly helpful in
determining whether to dismiss Plaintiffs’ claims.
With respect to the character of the conduct in question,
the district court determined that the factor was neutral. The
court found that Japan had an interest in regulating its nuclear
utilities and compensating those injured by the FNPP
incident, but that the United States also had an “interest in the
safe operation of nuclear power plants around the world,
especially when they endanger U.S. citizens.” Cooper II,
166 F. Supp. 3d at 1138. The district court also rejected
TEPCO’s argument that the foreign policy interests of Japan
and the United States favored a Japanese forum. TEPCO
argued that the CSC’s jurisdiction-channeling provision, even
if not applicable of its own force, reflected a policy judgment

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of centralizing claims arising out of nuclear incidents in the
courts of the country where the nuclear incident occurred.
The district court gave little weight to the CSC because it saw
no evidence that maintaining jurisdiction would create
friction between the United States and Japan9 and because the
CSC’s supplemental fund is unavailable to Plaintiffs. Finally,
the district court found that there were public policy
considerations cutting both in favor of and against dismissing
the case.
One of the reasons the district court cited for maintaining
jurisdiction was that neither Japan nor the United States had
expressed an interest in the location of this litigation. Indeed,
a foreign country’s request that a United States court dismiss
a pending lawsuit in favor of a foreign forum is a significant
consideration weighing in favor of dismissal. See Jota v.
Texaco, Inc., 157 F.3d 153, 160 (2d Cir. 1998) (“[I]nherent in
the concept of comity is the desirability of having the courts
of one nation accord deference to the official position of a
foreign state, at least when that position is expressed on
matters concerning actions of the foreign state taken within
or with respect to its own territory.”). By contrast, when the

9

TEPCO suggests that the district court misstated the law by
requiring a showing that maintaining jurisdiction would create diplomatic
friction between the United States and Japan. We do not view the district
court’s opinion to suggest that actual diplomatic friction is a prerequisite
for dismissing a case on international comity grounds. See Cooper II,
166 F. Supp. 3d at 1139 (noting the lack of evidence that maintaining
jurisdiction would harm U.S.-Japanese relations as one consideration).
Although not a prerequisite for international comity, whether maintaining
jurisdiction would harm the United States’ relationship with a foreign
country is certainly a relevant consideration. See Mujica, 771 F.3d at 609
(considering the United States’ interest in preserving its diplomatic
relationship with Colombia).

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country in question expresses no preference, the district court
can take that fact into consideration. See Abad v. Bayer
Corp., 563 F.3d 663, 668 (7th Cir. 2009) (finding it relevant
that neither the United States nor Argentina took a position on
where litigation should proceed).
Although Japan took no position in the district court,10
Japan has not remained silent on appeal. The government of
Japan submitted an amicus brief urging us to reverse the
district court. In its amicus brief, Japan presents a compelling
case that FNPP-related claims brought outside of Japan
threaten the viability of Japan’s FNPP compensation scheme.
In dealing with claims arising out of the FNPP incident, Japan
has developed a set of universal guidelines applicable to all
claims brought in Japan. If Plaintiffs’ lawsuit and others like
it are permitted to proceed in foreign countries, those courts
might apply different legal standards, which could result in
different outcomes for similarly situated victims. That risk is
especially troublesome to Japan because the Japanese
government finances TEPCO’s compensation payments,
which are being administered through Japanese courts. As
Japan explained in its amicus brief, “The irony of the
situation is that this U.S. lawsuit against TEPCO is possible
only because the Government of Japan, as part of its
compensation system, ensured TEPCO’s solvency, including
by providing ongoing funds for damage payments.” Brief of
Amicus Curiae the Government of Japan 3–4. Judgments
originating in American courts may well be inconsistent with
the overall administration of Japan’s compensation fund. In

10

The record reflects that the Japanese government informed the State
Department of its objection to U.S. jurisdiction while litigation was
pending in the district court, but did not express its views to the district
court.

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light of Japan’s justifiable insistence that we direct Plaintiffs
to Japanese courts, we might well have either reversed the
district court’s decision to maintain jurisdiction or remanded
to the district court for further consideration.
Because we became aware of Japan’s position by way of
an amicus brief on appeal, concerns of fairness and
thoroughness led us to seek the State Department’s views.
We asked for a Statement of Interest. In lieu of a Statement
of Interest, the United States submitted an amicus brief in
support of affirming the district court’s order. In its brief, the
United States expressed that it “has no clear independent
interest in Japan’s compensation scheme beyond [its] general
support for Japan’s efforts to address the aftermath of
Fukushima.” United States’ Brief 12, ECF No. 81. That
alone would not be enough for us to conclude that the comity
doctrine does not apply to this case. But the United States
also makes a much more important point about U.S. interests:
allowing the suit to continue in California is consistent with
U.S. interests in promoting the CSC.
The United States has a strong interest in promoting the
CSC’s widespread acceptance. As explained above, the CSC
was designed as a global liability regime for handling claims
arising out of nuclear incidents, and its effectiveness naturally
depends on global, or at least widespread, adherence.11 The

11

Unlike the Paris and Vienna Conventions, the CSC is designed to
attract even countries that do not generate nuclear power. Letter of
Submittal at VIII. Specifically, the CSC requires that fifty percent of the
supplemental compensation fund be used to compensate damage occurring
outside of the installation state, including damage occurring in a nonnuclear power generating country. CSC art. XI(1)(b). This incentive for
non-nuclear power generating countries was designed to create “for the

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CSC creates an international compensation fund to supplant
domestic funding for victims of nuclear incidents. CSC arts.
III, IV. The CSC cannot provide the robust supplemental
compensation fund it was intended to provide if only a few
countries contribute to the fund. The CSC also grants
contracting parties exclusive jurisdiction over actions
concerning nuclear incidents that occur within their borders.
CSC art. XIII. But this grant of exclusive jurisdiction has
little value if it binds only a few countries. In short, the CSC
cannot be the global liability system it was intended to be
without widespread adherence, particularly from developed
nations. See Letter of Transmittal for the Convention on
Supplementary Compensation for Nuclear Damage at IV,
Nov. 15, 2002, S. Treaty Doc. No. 107-21 (“[U]nder existing
nuclear liability conventions many potential victims outside
the United States generally have no assurance that they will
be adequately or promptly compensated in the event they are
harmed by a civil nuclear incident, especially if that incident
occurs outside their borders or damages their environment.
The Convention, once widely accepted, will provide that
assurance.” (emphasis added)); see also Letter of Submittal
at VIII–IX (“[T]he CSC can strengthen U.S. efforts to
improve nuclear safety, because, once widely accepted, the
CSC will eliminate ongoing concerns on the part of U.S.
suppliers of nuclear safety equipment and technology that
they would be exposed to damage claims by victims of a
possible future accident at a facility where they have provided
assistance.” (emphasis added)).
Thus, the United States, as a party to the CSC, has a
strong interest in encouraging other countries, especially
first time the potential for a nuclear liability convention that will apply
globally.” Letter of Submittal at VIII.

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those with large nuclear industries such as Japan, to join the
CSC. As we have discussed, one of the perquisites of joining
the CSC is the guarantee of exclusive jurisdiction over
nuclear incidents vis-à-vis other contracting parties. See
supra Section II.A. If a country knew it could receive the
benefit of the exclusive jurisdiction provision by becoming a
party to the CSC after a nuclear incident has occurred within
its borders (as Japan did here), or even avoid foreign
jurisdiction altogether by virtue of international comity, there
would be less incentive to join the CSC before a nuclear
incident occurs. As the State Department advised us in its
brief:
The exclusive jurisdiction provision forms
part of a bargain in exchange for robust, more
certain and less vexatious (e.g., the
application of strict liability without need to
establish fault) compensation for victims of a
potential incident. United States policy does
not call for advancing one element of this
system in isolation from the other elements of
the Convention’s system.
For these two inextricably interrelated
interests to be fully realized, it is essential that
the Convention be as widely adhered to
internationally as possible. Thus, broad
international adherence to the Convention is
the ultimate U.S. policy goal.
United States’ Brief 6–7. Accordingly, “[t]he United States
has no specific foreign policy interest necessitating dismissal
in this particular case.” Id. at 17. We understand the position
of the United States to be that, faced with the reality that there

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is no guarantee of exclusive jurisdiction outside of the CSC,
more countries will accede to the CSC, thus fostering the
global liability regime the CSC was designed to create.
Indirectly, this suit makes the case—and Japan has become
the poster child—for why recalcitrant countries should join
the CSC.
In its supplemental brief in response to the United States’
brief, TEPCO argues that the United States has
misapprehended its own foreign policy interests. In support
of this rather bold assertion, TEPCO repeats its argument
made in the district court that the CSC merely codified the
longstanding U.S. policy of centralizing jurisdiction over
claims from nuclear accidents in a single forum. TEPCO
points to State Department testimony before the Senate that,
even before the CSC, the State Department “would expect
that if a nuclear incident occurs overseas[,] U.S. courts would
assert jurisdiction over a claim only if they concluded that no
adequate remedy exists in the court of the country where the
accident occurred.” Treaties: Hearing Before the S. Comm.
on Foreign Relations, S. Hearing No. 109-324, 109th Cong.
27 (2005) (statement of Warren Stern, Senior Coordinator for
Nuclear Safety, Department of State). This may well have
been the United States’ position prior to the CSC’s
ratification. In hopes that other countries would do the same,
the United States may have preferred that U.S. courts not
exercise jurisdiction over claims arising out of foreign
nuclear incidents. But that policy appears to have changed.
Now that the United States has ratified the CSC, the State
Department takes the position that it would prefer to keep
exclusive jurisdiction as a bargaining chip to encourage other
nations to join the CSC. We owe this view deference. See
Mujica, 771 F.3d at 610 (“[S]hould the State Department
choose to express its opinion on the implications of

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exercising jurisdiction over particular petitioners in
connection with their alleged conduct, that opinion might
well be entitled to deference as the considered judgment of
the Executive on a particular question of foreign policy.”
(citation omitted)); id. at 607 (“[C]ourts will not extend
comity to foreign proceedings when doing so would be
contrary to the policies . . . of the United States.” (second
alteration in original) (citation omitted)).
In light of these important, competing policy interests, we
conclude that the district court did not abuse its discretion in
weighing U.S. and Japanese interests. Although Japan has an
undeniably strong interest in centralizing jurisdiction over
FNPP-related claims, the United States believes that
maintaining jurisdiction over this case will help promote the
CSC, an interest that encompasses all future claims arising
from nuclear incidents around the globe. Competing policy
interests such as these require our district court judges to
make difficult judgment calls, judgment calls committed to
their sound discretion. We recognize that the district court
did not have the benefit of the views of Japan and the United
States. We might, in this case, have remanded to the district
court to review its judgment on this question in light of the
briefs filed by the two governments. We are not sure why
neither government decided to weigh in when the district
court was considering this question. Nevertheless, the district
court had before it the facts that underlie the positions taken
by Japan and the United States, and we cannot say that the
district court abused its discretion.
2. Adequacy of the alternative forum
Like the district court, we have no doubt that Japan would
provide an adequate alternative forum. TEPCO is certainly

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subject to suit in Japanese courts, and the doors of those
courts are undisputedly open to Plaintiffs. See Tuazon v. R.J.
Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006)
(“Generally, an alternative forum is available where the
defendant is amenable to service of process and the forum
provides ‘some remedy’ for the wrong at issue.” (citation
omitted)). We have held that district courts have not abused
their discretion in holding that Japanese courts are an
adequate alternative forum, despite their procedural
differences with U.S. courts. See, e.g., Lockman Found. v.
Evangelical All. Mission, 930 F.2d 764, 768–69, 769 n.3 (9th
Cir. 1991). Plaintiffs provide no evidence that Japanese
courts would be inadequate aside from unsubstantiated fears
of bias against foreign claimants. The district court did not
abuse its discretion in finding that Japan would provide an
adequate alternative forum for resolving Plaintiffs’ claims.
***
This is a difficult case that required the district court to
weigh a number of complex policy considerations. Though
there are strong reasons for dismissing Plaintiffs’ claims in
favor of a Japanese forum, the district court did not abuse its
discretion in maintaining jurisdiction. Comity is not a
doctrine tied to our subject matter jurisdiction. As we have
explained:
Comity is not a rule expressly derived
from international law, the Constitution,
federal statutes, or equity, but it draws upon
various doctrines and principles that, in turn,
draw upon all of those sources. It thus shares
certain considerations with international
principles of sovereignty and territoriality;

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constitutional doctrines such as the political
question doctrine; principles enacted into
positive law such as the Foreign Sovereign
Immunities Act of 1976; and judicial
doctrines such as forum non conveniens and
prudential exhaustion.
Mujica, 771 F.3d at 598 (citation omitted). Accordingly, it is
a “a doctrine of prudential abstention.” Id. Because comity
is not a jurisdictional decision, comity is not measured as of
the outset of the litigation; it is a more fluid doctrine, one that
may change in the course of the litigation.12 Should either the
facts or the interests of the governments change—particularly
the interests of the United States13—the district court would
be free to revisit this question.

12

We note that further developments in the district court may counsel
in favor of dismissing Plaintiffs’ lawsuit in favor of a Japanese forum. For
example, the district court has yet to determine whether U.S. or Japanese
law will govern Plaintiffs’ claims. Which country’s law applies is relevant
to the international comity analysis. See Ungaro-Benages, 379 F.3d at
1240 (affirming a district court’s decision to dismiss a case when the
relevant conduct occurred in Germany and the case involved issues of
German law); cf. Mujica, 771 F.3d at 602 (“At least in cases considering
adjudicatory comity, we will consider whether there is a conflict between
American and foreign law as one factor in . . . the application of comity.”).
13

Although the United States does not oppose Plaintiffs’ litigation, its
brief states that it has no foreign policy interest that requires dismissal “at
this time.” United States’ Brief 3. The United States may change its
position if the circumstances so merit. See Sarei v. Rio Tinto, PLC,
671 F.3d 736, 756–57 (9th Cir. 2011) (en banc) (noting that the State
Department initially opposed U.S. jurisdiction over claims touching on
foreign relations with Papua New Guinea, but later withdrew its
opposition in light of changed country conditions), vacated on other
grounds, 133 S. Ct. 1995 (2013) (mem.).

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C. Forum Non Conveniens
The doctrine of forum non conveniens allows a court to
dismiss a case properly before it when litigation would be
more convenient in a foreign forum. Lueck v. Sundstrand
Corp., 236 F.3d 1137, 1142 (9th Cir. 2001); see also Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255–56 (1981). “To
prevail on a motion to dismiss based upon forum non
conveniens, a defendant bears the burden of demonstrating an
adequate alternative forum, and that the balance of private
and public interest factors favors dismissal.” Carijano v.
Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir.
2011). We review the district court’s decision to grant or
deny a motion to dismiss on forum non conveniens grounds
for an abuse of discretion. Id. Here, the district court did not
abuse its discretion in declining to dismiss this case.
1. Adequacy of the alternative forum
The analysis used in evaluating the adequacy of an
alternative forum is the same under the doctrine of forum non
conveniens as it is under the doctrine of international comity.
Mujica, 771 F.3d at 612 n.25. As we stated in our
international comity analysis, Japan provides an adequate
alternative forum for resolving Plaintiffs’ claims. See supra
Section II.B.2.
2. Private and public interest factors
To some extent, analysis of the private and public
interests factors also overlaps with the analysis under
international comity. See Mujica, 771 F.3d at 598 (explaining
the relationship between international comity and forum non
conveniens). However, the forum non conveniens analysis

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introduces a presumption that litigation is convenient in the
plaintiff’s chosen forum when a domestic plaintiff sues at
home. Carijano, 643 F.3d at 1227. Defendants have the
“heavy burden of showing that the [plaintiff’s choice of]
forum results in ‘oppressiveness and vexation . . . out of all
proportion’ to the plaintiff’s convenience.” Id. (second
alteration in original) (quoting Piper, 454 U.S. at 241).
In this case, Plaintiffs are U.S. citizens, and their decision
to sue in the United States must be respected. The district
court properly took Plaintiffs’ choice of their home forum
into consideration and did not abuse its discretion in finding
that other private and public considerations did not outweigh
Plaintiffs’ interest in suing at home.
The private interest factors are
(1) the residence of the parties and the
witnesses; (2) the forum’s convenience to the
litigants; (3) access to physical evidence and
other sources of proof; (4) whether unwilling
witnesses can be compelled to testify; (5) the
cost of bringing witnesses to trial; (6) the
enforceability of the judgment; and (7) all
other practical problems that make trial of a
case easy, expeditious and inexpensive.Id. at
1229 (citation omitted).
The district court reasonably balanced these private
interest factors. The district court noted that while most of
TEPCO’s witnesses reside in Japan, all Plaintiffs reside in the
United States. Cooper II, 166 F. Supp. 3d at 1132–33. It
further found that it would be more difficult for Plaintiffs to
travel to Japan given their alleged medical conditions. Id. at

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1133. The district court agreed with TEPCO that most of the
relevant documents and physical proof remained in Japan,
and also that litigating in the United States would make it
more difficult to obtain testimony from non-party witnesses
located in Japan, but did not believe that these considerations
outweighed Plaintiffs’ interest in suing at home. Id. at
1133–35. In sum, “[b]ecause of the nature of international
litigation, each side would incur expenses related to traveling
and procuring witnesses in either forum.” Id. at 1135
(emphasis added). This was a reasonable determination.
The public interest factors relevant to a forum non
conveniens analysis include “(1) the local interest in the
lawsuit, (2) the court’s familiarity with the governing law,
(3) the burden on local courts and juries, (4) congestion in the
court, and (5) the costs of resolving a dispute unrelated to a
particular forum.” Carijano, 643 F.3d at 1232 (citation
omitted). The district court also reasonably weighed the
public interest factors and concluded that they were neutral.
It balanced Japan’s interest in centralizing litigation in Japan
with the United States’ interest in compensating its military
servicemembers. Cooper II, 166 F. Supp. 3d at 1132–36. It
noted that this litigation would be burdensome to either
country’s courts. Id. at 1136. This determination was neither
illogical, implausible, nor unsupported by the record.
Of course, the policy considerations addressed in the
international comity discussion may also be relevant here.
But as we explained above, these policy considerations did
not require the district court to dismiss this case on
international comity grounds. Nor do they require dismissal
under forum non conveniens. We therefore affirm the district
court’s decision not to dismiss Plaintiffs’ claims under the
forum non conveniens doctrine.

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D. The Political Question Doctrine
TEPCO next contends that the political question doctrine
bars Plaintiffs’ suit. It argues that the Navy’s decision to
deploy Plaintiffs near the FNPP was a superseding cause of
Plaintiffs’ injuries, and that Plaintiffs, accordingly, cannot
prove their claims without asking the court to review
nonjusticiable military decisions. The district court found
that TEPCO’s superseding causation defense did not render
this case nonjusticiable. Cooper II, 166 F. Supp. 3d at
1119–24.
We review de novo the district court’s
determination that the political question doctrine does not bar
Plaintiffs’ case. Corrie v. Caterpillar, Inc., 503 F.3d 974,
979 (9th Cir. 2007).
1. The political question doctrine framework
“The nonjusticiability of a political question is primarily
a function of the separation of powers.” Baker v. Carr,
369 U.S. 186, 210 (1962). “The conduct of the foreign
relations of our government is committed by the Constitution
to the executive and legislative—‘the political’—departments
of the government, and the propriety of what may be done in
the exercise of this political power is not subject to judicial
inquiry or decision.” Oetjen v. Cent. Leather Co., 246 U.S.
297, 302 (1918). The Court has cautioned, however, that “it
is ‘error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance.’”
Corrie, 503 F.3d at 982 (quoting Baker, 369 U.S. at 211).
Rather, courts look to a series of factors to determine whether
a case presents a nonjusticiable political question. As Baker
explains:

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Prominent on the surface of any case held to
involve a political question is found [1] a
textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or [2] a lack of judicially
discoverable and manageable standards
for resolving it; or [3] the impossibility
of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or [5] an unusual
need for unquestioning adherence to a
political decision already made; or [6] the
potentiality of embarrassment from
multifarious pronouncements by various
departments on one question.

369 U.S. at 217.
Typically, deciding whether a case presents a
nonjusticiable political question requires the court simply to
look at the complaint and apply the Baker factors to decide
whether there are any nonjusticiable issues. Sometimes,
however, and as is the case here, no political questions are
apparent from the complaint’s face. Plaintiffs’ allegations
that TEPCO, an entity unaffiliated with the United States
government, was negligent in operating the FNPP do not, on
their face, trigger any of the six Baker factors. But even
when the face of a complaint does not ask the court to review
a political question, issues “that are textually committed to
the executive sometimes lie just beneath the surface of the
case.” Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d

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458, 465 (3d Cir. 2013). Such may be the case when, as here,
the defendant argues that the U.S. military is responsible for
all or part of a plaintiff’s injuries. See id. Because “the
political question doctrine is jurisdictional in nature,” we
must evaluate these potential defenses and facts beyond those
pleaded in the complaint to determine whether the case is
justiciable. See Corrie, 503 F.3d at 979; see also Harris,
724 F.3d at 466 (“[T]o avoid infringing on other branches’
prerogatives in war-time defense-contractor cases, courts
must apply a particularly discriminating inquiry into the facts
and legal theories making up the plaintiff’s claims as well as
the defendant’s defenses.”); Taylor v. Kellogg Brown & Root
Servs., Inc., 658 F.3d 402, 409 (4th Cir. 2011) (“[W]e are
obliged to carefully . . . ‘look beyond the complaint, and
consider how [the plaintiff] might prove his claim and how
[the defendant] would defend.’” (citation, emphasis, and
alterations omitted)); Carmichael v. Kellogg, Brown & Root
Servs., Inc., 572 F.3d 1271, 1285 (11th Cir. 2009) (finding
the political question doctrine applicable where “any defense
mounted by [defendants] would undoubtedly cite the
military’s orders as the reason” for defendants’ actions); Lane
v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) (“We must
look beyond the complaint, considering how the Plaintiffs
might prove their claims and how [the defendant] would
defend.”).
Thus, analyzing TEPCO’s contention that the political
question doctrine bars Plaintiffs’ claims requires a two-part
analysis. First, we must determine whether resolving this
case will require the court to evaluate a military decision.
Doing so requires us to consider what Plaintiffs must prove
to establish their claim, keeping in mind any defenses that
TEPCO will raise. If step one reveals that determining
TEPCO’s liability will require the court to evaluate a military

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decision, step two requires us to decide whether that military
decision is of a kind that is unreviewable under the political
question doctrine. See Harris, 724 F.3d at 466 (“[A]
determination must first be made whether the case actually
requires evaluation of military decisions. If so, those military
decisions must be of the type that are unreviewable because
they are textually committed to the executive.”); Lane,
529 F.3d at 560 (“First, [the defendant] must demonstrate that
the claims against it will require reexamination of a decision
by the military. Then, it must demonstrate that the military
decision at issue . . . is insulated from judicial review.”
(second alteration in original) (citation omitted)).
Although we have never expressly adopted this two-part
test, it is consistent with our precedent. For example, in
Corrie, the plaintiffs were family members of individuals
who were killed or injured when the Israeli Defense Forces
demolished homes in the Palestinian Territories using
bulldozers manufactured by a U.S. defense contractor.
503 F.3d at 977. The plaintiffs sued the defense contractor,
arguing that it knew the bulldozers would be used to demolish
homes in violation of international law. Id. Though the
complaint standing alone did not appear to raise a political
question, it turned out that the United States paid for each of
the bulldozers sold to the Israeli Defense Forces pursuant to
a congressionally enacted program giving the executive
discretion to finance aid to foreign militaries. Id. at 978. We
concluded that resolving the plaintiffs’ claims would require
us to evaluate the United States’ decision to provide military
aid because it was “difficult to see how we could impose
liability on [the defense contractor] without at least implicitly
deciding the propriety of the United States’ decision to pay
for the bulldozers which allegedly killed the plaintiffs’ family
members.” Id. at 982. Having determined that evaluating the

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plaintiffs’ claims would require us implicitly to evaluate the
United States’ decision to pay for the bulldozers, we
concluded that the decision “to grant military or other aid to
a foreign nation is a political decision inherently entangled
with the conduct of foreign relations.” Id. at 983. In light of
our conclusion that we could not “intrude into our
government’s decision to grant military assistance to Israel,
even indirectly,” we affirmed the district court’s dismissal of
the plaintiffs’ claims under the political question doctrine. Id.
at 983–84.
Because determining whether a case raises a political
question requires a “discriminating inquiry into the precise
facts and posture of the particular case,” Baker, 369 U.S. at
217, it is not always possible to tell at the pleading stage
whether a political question will be inextricable from the
case, see Lane, 529 F.3d at 554. For example, in Lane, a
defense contractor recruited the plaintiffs to drive trucks in
Iraq. Id. While in Iraq, Iraqi insurgents attacked the
plaintiffs’ convoys resulting in deaths and injuries to the
plaintiffs. Id. at 555. The plaintiffs argued that the contractor
fraudulently induced them into employment by falsely
representing that their work in Iraq would be entirely safe.
Id. They also asserted that the defense contractor was
negligent in carrying out the convoy. Id. The defense
contractor argued that the case presented a nonjusticiable
political question, and the district court agreed and dismissed
the case. Id. at 555–56.
On appeal, the Fifth Circuit reversed. The court stressed
that in order to dismiss a case on political question grounds,
“a court must satisfy itself that [a] political question will
certainly and inextricably present itself.” Id. at 565. Though
acknowledging the potential for a political question to arise

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in the case, the court was not satisfied that addressing a
political question would be inevitable. The plaintiffs’ fraud
theory, for example, might have succeeded if the plaintiffs
could establish that the defense contractor guaranteed the
plaintiffs’ safety while knowing that the plaintiffs were at a
greater risk of harm than they were led to believe. Id. at 567.
The court also permitted the plaintiffs’ negligence claims to
proceed, while noting that those claims “move precariously
close to implicating the political question doctrine, and
further factual development very well may demonstrate that
the claims are barred.” Id. But given the lack of clarity at the
pleading stage regarding what duties the defense contractor
owed toward the plaintiffs while in Iraq, it was not certain
that a political question was inextricable from the case. Id.
Accordingly, the court remanded to the district court for
further factual development. Id. at 568; see also Carmichael,
572 F.3d at 1279 (noting that factual developments during
discovery aided the district court in determining whether a
political question existed); McMahon v. Presidential Airways,
Inc., 502 F.3d 1331, 1361 (11th Cir. 2007) (rejecting a
defendant’s arguments that the political question doctrine
barred the plaintiffs’ claims because it was not clear from the
pleadings that a political question existed).
Another consideration that may make it difficult to
determine in the early stages of litigation whether a
nonjusticiable political question exists is a lack of clarity as
to which state’s or country’s law applies. See Harris,
724 F.3d at 474. Deciding whether a political question is
inextricable from a case necessarily requires us to know what
the plaintiff must prove in order to succeed. Although there
is often similarity between the tort regimes of different
jurisdictions, the elements of a particular tort and the host of
defenses available to the defendant can vary in significant

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ways. See id. (contrasting the tort laws of Pennsylvania,
Tennessee, and Texas). This leaves open the possibility that
a political question may arise under the laws of one
jurisdiction but not under the laws of another. For example,
in Harris, the Third Circuit concluded that a political question
would arise under Tennessee or Texas law because their
proportional liability systems would require the court to
apportion fault among all possible tortfeasors, including the
military. Id. Doing so would require the court to determine
whether a particular military decision was reasonable, which
raised a political question. In contrast, under Pennsylvania’s
joint-and-several liability system, it would be possible to
impose liability on the defense contractor without needing to
apportion any fault to the military or otherwise review its
decisions. Id. Thus, at least where the potentially applicable
bodies of law differ, the district court must either decide what
law applies or conclude that a political question would arise
under any potentially applicable body of law before it can
dismiss a case as nonjusticiable.
2. Analysis
At this stage in the litigation, we find ourselves unable to
undertake the “discriminating inquiry” necessary to
determine if this case presents a political question. Baker,
369 U.S. at 217. The parties have agreed, and we assume for
present purposes, that the political question doctrine prevents
us from evaluating the wisdom of the Navy’s decision to
deploy troops near the FNPP. See Corrie, 503 F.3d at 983
(“Whether to grant military or other aid to a foreign nation is
a political decision inherently entangled with the conduct of
foreign relations.”); see also Gilligan v. Morgan, 413 U.S. 1,
10 (1973) (“The complex[,] subtle, and professional decisions
as to the composition, training, equipping, and control of a

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military force are essentially professional military judgments
. . . .”); id. (“It would be difficult to think of a clearer example
of the type of governmental action that was intended by the
Constitution to be left to the political branches . . . .
Moreover, it is difficult to conceive of an area of
governmental activity in which the courts have less
competence.”); Johnson v. Eisentrager, 339 U.S. 763, 789
(1950) (“Certainly it is not the function of the Judiciary to
entertain private litigation—even by a citizen—which
challenges the legality, the wisdom, or the propriety of the
Commander-in-Chief in sending our armed forces abroad or
to any particular region.”). In other words, step two is not in
dispute. The dispute is whether Plaintiffs’ claims or
TEPCO’s superseding causation defense would actually
require the court to review the wisdom of the Navy’s
decisions during Operation Tomodachi.
Several considerations make it difficult for us to tell at
this stage in the proceedings whether the district court would
actually need to review the Navy’s decisions. First, the
district court has yet to undergo a choice-of-law analysis, and
the parties have briefed the issue assuming California law
applies. Without knowing what body of law applies—
whether it is California law, Japanese law, federal common
law, or something else—we cannot know what Plaintiffs must
demonstrate in order to prove their claims or what defenses
are available to TEPCO. We cannot, therefore, decide with
certainty that a political question is inextricable from the
case. See Harris, 724 F.3d at 474–75.14

14

TEPCO suggests that there are no material differences between the
potentially applicable bodies of law, making the choice-of-law analysis
irrelevant. In support of this argument, TEPCO cites to only a few pages
of the record providing a brief summary of how Japanese tort law

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Even assuming California law applies, we are unable to
conclude at this juncture that TEPCO’s superseding causation
defense injects a political question into this case. “California
has adopted sections 442–453 of the Restatement of Torts,
which define when an intervening act constitutes a
superseding cause.” USAir Inc. v. U.S. Dep’t of Navy,
14 F.3d 1410, 1413 (9th Cir. 1994). Section 442 of the
Restatement lays out several considerations used to determine
whether an intervening force is a superseding cause.
Restatement (Second) of Torts § 442 (Am. Law Inst. 1965).
The parties primarily discuss two such considerations. First,
determining whether the Navy’s actions were a superseding
cause of Plaintiffs’ injuries will require the district court to
determine whether the Navy’s actions were foreseeable as a
result of TEPCO’s negligence. As we have explained our
understanding of California law,
[a] superseding cause must be something
more than a subsequent act in a chain of
causation; it must be an act that was not
reasonably foreseeable at the time of the
defendant’s negligent conduct. Moreover,
even if the intervening act is negligent, it is
not a superseding cause if the first actor
should have known that a third person might
so act.

addresses causation. Aside from that, the parties have not briefed the
choice of law issue. TEPCO may well be correct that the political
question doctrine will bar review irrespective of the choice of law, but we
will defer consideration of the matter until after the parties fully brief the
issue in the district court and the district court makes a determination in
the first instance.

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USAir Inc., 14 F.3d at 1413 (citations omitted). Even when
a third party acts negligently, it may not relieve the defendant
of its own negligence where the defendant could have
anticipated the acts of the third party. Rather, in that
circumstance there is “concurrent or contributory causation,
where both wrongful acts were necessary conditions of the
harm. That there was more than one proximate or legal cause
of the accident is important only for the district court’s
apportionment of damages.” Id. at 1414 (citations omitted).
The district court ruled that it was foreseeable that
Plaintiffs and other foreign responders would be in the area
to provide aid in the wake of the earthquake and tsunami.
Cooper II, 166 F. Supp. 3d at 1121. TEPCO argues, and we
agree, that the proper inquiry is not whether it was
foreseeable that Plaintiffs would be in the area, but whether
TEPCO, in anticipation of its alleged negligence, could have
foreseen the Navy’s actions in response. Only if TEPCO
could not have foreseen the Navy’s actions and the Navy’s
actions caused the Plaintiffs’ injuries would the Navy’s
conduct break the chain of proximate causation. But deciding
whether a particular military action was “reasonably
foreseeable” is not the same as requiring an evaluation of
whether that action was itself reasonable. We cannot begin
to resolve these questions at this stage in the litigation
because there are basic factual disputes regarding the Navy’s
operations during Operation Tomodachi.15 We agree with the
15

TEPCO makes much of Plaintiffs’ allegations that the U.S.S.
Ronald Reagan was initially positioned “two miles off the coast,” while
the Navy had been warned to stay at least “50 miles outside of the radius
. . . of the [FNPP].” Appellant’s Opening Brief 7. The SAC alleges,
however, that the U.S.S. Ronald Reagan was situated so as to provide
relief in the city of Sendai, which is located over fifty miles north of the
FNPP. Thus, it is possible that the U.S.S. Ronald Reagan was at once two

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district court that it may “hear evidence with respect to where
certain ships were located and what protective measures were
taken” without running afoul of the political question
doctrine. Cooper II, 166 F. Supp. 3d at 1123; see Harris,
724 F.3d at 473 (“[T]he submission of evidence related to
strategic military decisions that are necessary background
facts for resolving a case . . . is not sufficient to conclude that
a case involves an issue textually committed to the
executive.”).
Second, TEPCO relies on § 452(2) of the Restatement
(Second) of Torts, which provides: “Where, because of lapse
of time or otherwise, the duty to prevent harm to another
threatened by the actor’s negligent conduct is found to have
shifted from the actor to a third person, the failure of the third
person to prevent such harm is a superseding cause.” This
provision
covers the exceptional cases in which,
because the duty, and hence the entire
responsibility for the situation, has been
shifted to a third person, the original actor is
relieved of liability for the result which
follows from the operation of his own
negligence. The shifted responsibility means
in effect that the duty, or obligation, of the
original actor in the matter has terminated,

miles off the coast and fifty miles away from the FNPP. Although other
portions of the SAC suggest that the U.S.S. Ronald Reagan was closer to
the FNPP, where the U.S.S. Ronald Reagan was situated is unclear from
the record before us, and further factual development is necessary to
resolve this issue.

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and has been replaced by that of the third
person.

Restatement (Second) of Torts § 452 cmt. d. Even assuming
TEPCO is correct that the duty to protect Plaintiffs shifted
from TEPCO to the Navy,16 it is not clear that determining
whether the duty shifted would raise a political question. A
determination that someone other than TEPCO bore the
responsibility for Plaintiffs’ safety might simply absolve
TEPCO of liability to Plaintiffs. The district court may not
have to then decide whether the Navy fulfilled its duty to
Plaintiffs.
The political question doctrine does not currently require
dismissal. As the facts develop, it may become apparent that
resolving TEPCO’s superseding causation defense would
require the district court to evaluate the wisdom of the Navy’s
decisions during Operation Tomodachi. But at this point, that
is not clear. Further district court proceedings will help flesh
out the contours of whatever law the district court finds
applicable. TEPCO is free to raise the political question
16

The applicability of § 452(2) may hinge on facts that are not clear
from the record before us. The comments to § 452 note that “[i]t is
apparently impossible to state any comprehensive rule as to when” the
responsibility to prevent harm passes to a third person, but they list
various factors that play into the determination. Restatement (Second) of
Torts § 452 cmt. f (stating that such factors include “the degree of danger
and the magnitude of the risk of harm, the character and position of the
third person who is to take the responsibility, his knowledge of the danger
and the likelihood that he will or will not exercise proper care, his relation
to the plaintiff or to the defendant, the lapse of time, and perhaps other
considerations”). As the district court noted, the Navy’s “knowledge of
the danger” is unclear at this point, as is exactly how much time passed
between the meltdown and the Plaintiffs’ arrival. Cooper II, 166 F. Supp.
3d at 1122.

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doctrine again if and when further developments demonstrate
that a political question is inextricable from the case.
E. Firefighter’s Rule
Finally, TEPCO argues that the firefighter’s rule bars
Plaintiffs’ claims. The firefighter’s rule originated at
common law and “precluded firefighters from suing those
whose negligence caused or contributed to a fire that, in turn,
caused the firefighter’s injury or death.” Vasquez v. N. Cty.
Transit Dist., 292 F.3d 1049, 1054 (9th Cir. 2002). Despite
its name, the firefighter’s rule extends to more than just
firefighters. See id. at 1054–55. It is an open question under
California law, however, whether the firefighter’s rule applies
to military servicemembers. The district court declined to
extend the firefighter’s rule beyond domestic first responders.
Cooper II, 166 F. Supp. 3d at 1127. As with the political
question doctrine, the parties have briefed this issue assuming
California law will apply. We decline the invitation to rule
on this issue of California law, one that may well require us
to certify a question to the California Supreme Court, before
the district court has determined what law applies. It is
unclear whether Japanese law has a doctrine similar to the
firefighter’s rule, and the choice of law determination may
therefore obviate the need to decide whether California would
extend this common law doctrine to military servicemembers.
Accordingly, we provide no opinion as to whether the
firefighter’s rule applies to military servicemembers and, if
so, whether it bars Plaintiffs’ claims.
III. CONCLUSION
We affirm the district court’s denial of TEPCO’s motion
to dismiss. As the case develops more fully, however, the

Case: 15-56424, 06/22/2017, ID: 10483759, DktEntry: 109-1, Page 50 of 50

50

COOPER V. TOKYO ELECTRIC POWER

district court may reconsider dismissal as a matter of comity
or under the political question doctrine or state law.
AFFIRMED.