The legal and political fight is expected to continue for Bikini Islanders and their lawyers, who are pushing for greater compensation from the government for nuclear bomb testing in the 1940s and 1950s that displaced islanders, exposed them to radiation, and decimated the land.
A three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled today against the plaintiffs, saying an agreement between the governments of the United States and Marshall Islands in 1986 is a settlement that is beyond judicial review. The court affirmed a U.S. Court of Federal Claims ruling.
Federal Circuit Judges Randall Rader, Alan Lourie, and Sharon Prost said in the 9-page opinion there is no ambiguity in the agreement. U.S. courts, the panel declared, have no jurisdiction to hear the claims since Congress set aside $150 million to start a trust fund to support the Nuclear Claims Tribunal. The tribunal was established to hear claims from islanders.
The political questions raised in the case are “beyond the power of this or any court to consider,” the judges wrote. “In sum, this court cannot hear, let alone remedy, a wrong that is not within its power to adjudicate,” Rader wrote for the panel.
Lawyers for the plaintiffs—including partners at Akin Gump Strauss Hauer & Feld and at Wilmer Cutler Pickering Hale and Dorr—are seeking enforcement of awards that came out of the tribunal in 2000 and in 2001 that totaled more than $948 million in compensation for the people of the Bikini and Enewetak atolls in the Central Pacific. The awards included loss of the islands; clean-up and resettlement costs; and personal injury and hardship. The Bikini Atoll remains uninhabitable.
But the tribunal, citing a lack of funding, has only paid about $3.8 million to the plaintiffs. Lawyers for the islanders say Congress did not sufficiently fund the tribunal to make it able to provide just-compensation awards. An effort in Congress to fund the tribunal has languished.
In the Federal Circuit, Patricia Millett, an Akin Gump partner, argued for the Bikinian class, which includes 400 U.S. citizens. Wilmer Hale partner Jonathan Cedarbaum argued for the people of the Enewetak atoll. Brian Simkin, assistant director of the Justice Department commercial litigation branch, argued for the government.
Jonathan Weisgall, who has represented Bikini islanders since the 1970s, says the Federal Circuit opinion is unlikely to end the litigation.
“There remains, as there has for 63 years, a moral obligation of the United States to care for victims of nuclear testing,” says Weisgall, who participated on the briefs with the Akin Gump team. “I don’t think we’re at the end yet—not at all. From their perspective, the last chapter of this book ends when they get to go home.”
The lawyers could petition the Federal Circuit for a rehearing en banc or ask the Supreme Court to review the case.