United States District Court, Central District of Illinois, Peoria Division
July 10, 1991
JAMES R. O'CONNER, PLAINTIFF,
COMMONWEALTH EDISON COMPANY, AND LONDON NUCLEAR SERVICE, INC., DEFENDANTS.
The opinion of the court was delivered by: Mihm, District Judge.
Before the Court is a Motion by the Plaintiff for remand of
this case to state court based upon the assertion that the
Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2210(n)(2),
which provides removal of cases such as this to United States
District Courts, is unconstitutional.*fn1 This Court finds
that the Act is constitutional and denies the Motion to Remand
for the reasons stated herein.
On October 1, 1985, this action was commenced by O'Conner in
the Circuit Court of the Tenth Judicial Circuit of Illinois in
Tazewell County.*fn2 O'Conner's Complaint alleged that he was
a radiation worker for London Nuclear Services which had hired
O'Conner to work as a pipe fitter in construction repair
operations at the Commonwealth Edison Nuclear Power Plant in
Cordova, Illinois. Commonwealth Edison is a public utility and
London Nuclear Services was its contractor performing services
at the nuclear power plant. In both counts of his Complaint,
O'Conner alleged that the Defendants negligently exposed
O'Conner to radiation which caused various injuries.
On September 13, 1988, the Defendants removed this case as
a "public liability action" under 42 U.S.C. § 2210(n)(2). The
Defendants assert that this case is a "public liability action"
(under the Price-Anderson Act as amended in 1988) by a
radiation worker against an Illinois public utility and its
contractor. See, 42 U.S.C. § 2014(hh), (w), and (q).
O'Conner filed an objection to the removal on September 23,
1988. The Defendants responded to this objection on November
1, 1988. O'Conner then filed a reply on November 28, 1988.
Finally, on December 8, 1988, the Defendants filed another
reply. (See, documents #5, #7, #9, #10). The Magistrate held a
hearing on the objection to the Petition for Removal on January
5, 1989. He denied O'Conner's request for remand by docket
entry on that same date.*fn3
O'Conner asserts that, if the Atomic Energy Act preempts
state court jurisdiction, that preemption is limited solely to
the exclusive jurisdiction of the federal government to
control the standards and methods of regulation only and does
not preempt state court jurisdiction premised upon common law
negligence. See, Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Further, O'Conner asserts
that the sole purpose of the Price-Anderson Act was to
establish an indemnification scheme where the operator of the
nuclear plant would be subject to multi-million dollar
judgments. Thus, O'Conner submits that the Price-Anderson Act
is applicable only if the verdict potential for the injuries
caused by the radioactive material exceeds $60,000,000, and
only if the government must implement the indemnification
procedures of the Price-Anderson Act.
O'Conner notes that the joint committee report on the
original version of the Price-Anderson Act indicated this
limited need was the sole purpose of a limited scope of
federal court intervention:
Since the rights of third parties who are injured
are established by state law, there is no
interference with the state law until there is
likelihood that the damages exceed the amount of
financial responsibility required together with
the amount of the indemnity. At that point the
federal interference is limited to the
prohibition of making payments to the state
courts and to pro rating the proceeds available.
S.Rep. No. 296, 85th Cong., 1st Sess. 9 (1956).
As the Defendants note, however, their Petition for Removal
is based upon the
Price-Anderson Act of 1988 which amended the Atomic Energy Act
of 1954 to provide for retroactive federal court jurisdiction
over claims involving a "nuclear incident." The Price-Anderson
Act amendments of 1988 broadened the scope of the Atomic
Energy Act to apply to individual claims of personal injury
arising out of radiation exposure. Sections 11(a)(1)(A) and
(B) and § 11(a)(2) of the Price-Anderson Act amendments of 1988
amend § 170(n)(2) of the Atomic Energy Act of 1954
(42 U.S.C. § 2210(n)(2)) by striking the clause "an extraordinary nuclear
occurrence" each place it appears and inserting the clause "a
nuclear incident." 42 U.S.C. § 2210(n)(2) now reads as follows:
With respect to any public liability action arising
out of or resulting from a nuclear incident, the
United States District Court in the district where
the nuclear incident takes place, or in the case of
a nuclear incident taking place outside the United
States, the United States District Court for the
District of Columbia, shall have original
jurisdiction without regard to the citizenship of
any party or the amount in controversy. Upon motion
of the defendant or of the Commission, or the
Secretary, as appropriate, any such action pending
in any state court (including any such action
pending on August 20, 1988) or United States
District Court shall be removed or transferred to
the United States District Court having venue under
this subsection. . . . . (Emphasis added).
The key terms to determine whether removal is proper are
"public liability action" and "nuclear incident." The Atomic
Energy Act defines a "nuclear incident" as "any occurrence"
which causes an injury resulting from toxic exposure to
radiation. Specifically, the Atomic Energy Act provides:
The term "nuclear incident" means any occurrence,
including an extraordinary nuclear occurrence,
within the United States causing . . . bodily
injury, sickness, disease, or death, or loss 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
source, special nuclear, or by-product material. .
42 U.S.C. § 2014(q) (emphasis added).
Section 11(b) of the Price-Anderson Act amendments of 1988
defines a "public liability action" as follows:
The term "public liability action" as used in
section 2210 of this title, means any suit
asserting public liability. A public liability
action shall be deemed to be an action arising
under section 2210 of this title, and the
substantive rules for decision in such action shall
be derived from the law of the state in which the
nuclear incident involved occurs, unless such law
is inconsistent with the provisions of such
42 U.S.C. § 2014(hh) (emphasis added). 42 U.S.C. § 2014(w)
defining "public liability" provides in relevant part:
The term "public liability" means any legal
liability arising out of or resulting from a
nuclear incident or precautionary evacuation. . . .
After examining the amendments to the Atomic Energy Act by
the Price-Anderson Act amendments of 1988, this Court
concludes that the plain language of the Act, as amended,
shows that Congress's intent was to broaden the scope of the
Act and thereby expand coverage to individual incidents of
claimed personal injury from radiation exposure. It is clear
that this litigation involves a "public liability action"
under 42 U.S.C. § 2210(n)(2), because this is a suit asserting
"public liability" under 42 U.S.C. § 2014(hh). The alleged
legal liability in this action arises out of a "nuclear
incident" under 42 U.S.C. § 2014(w) as defined under the broad
definition of "nuclear incident" given by the Act under
42 U.S.C. § 2014(q). Therefore, this Court has jurisdiction of
O'Conner has now asserted that this case should be remanded
to state court because the removal was premised upon an
unconstitutional statute, 42 U.S.C. § 2210(n)(2). O'Conner
asserts that the statute is unconstitutional because Congress
exceeded the scope of Article III, Section 2 of the United
States Constitution by granting federal courts subject matter
jurisdiction in this case. Second, O'Conner contends that the
Price-Anderson Act unconstitutionally interferes with state
sovereignty by divesting a state judicial system of
jurisdiction over a pending case. Third, O'Conner maintains
that retroactive application of the removal provision violates
the due process clause of the Fifth Amendment. Finally,
O'Conner argues that the equal protection clause of the
Fourteenth Amendment is violated by increasing the
compensation fund for cases in the future while failing to
increase that fund for pending cases.
The United States and the Defendants in this case oppose
I. Does Congress's Enactment of
42 U.S.C. § 2210(n)(2) Exceed the Scope of Article III of the United
O'Conner first asserts that cases arising under the 1988
Price-Anderson Act Amendments do not arise under federal law.
See, Stibitz v. General Public Utilities Corp., 746 F.2d 993
(3rd Cir. 1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187,
84 L.Ed.2d 334 (1985); Kiick v. Metropolitan Edison Company,
784 F.2d 490 (3rd Cir. 1986); Commonwealth of Pennsylvania v.
General Public Utilities Corp., 710 F.2d 117 (3rd Cir. 1983);
Duke Power Company v. Carolina Environmental Study Group,
438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Silkwood v.
Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443
(1984). Based on the foregoing cases, O'Conner asserts that
Congress never intended the Price-Anderson Act to create
federal substantive law supporting arising under jurisdiction
in Article III, Section 2 of the United States Constitution.
This Court disagrees with O'Conner's analysis for several
reasons. First, each of the cases cited by O'Conner are
inapplicable to the present case because of the subsequent
passage of the Price-Anderson Act amendments of 1988. Second,
under certain circumstances, this Court believes that Congress
has the power to incorporate state law as federal law so that
state law is essentially federalized. Finally, even if the
state rules of decision which are incorporated in "public
liability actions" under this Act would not be regarded as
federal law, this Court concludes that Article III nonetheless
authorizes federal jurisdiction given the extensive federal
questions inherent in cases litigated under this Act.
Initially, this Court would note that it is clear that
Congress could have preempted all state law and common law
causes of actions involving nuclear incidents or nuclear power
under the commerce clause of Article I, Section 8 of the
United States Constitution as long as Congress provided an
alternative remedy for potential plaintiffs. See, Duke Power,
438 U.S. at 87-89, 98 S.Ct. at 2637-39. In Duke Power, the
Supreme Court considered a claim that the Act's provision
limiting total liability to $560,000,000 violated due process
because the Act failed to provide those injured by a nuclear
accident with the satisfactory quid pro quo for the common law
rights of recovery which the Act abrogated. Id. at 87-88, 98
S.Ct. at 2637-38. The Supreme Court stated in relevant part:
The remaining due process objection to the
liability-limitation provision is that it fails
to provide those injured by a nuclear accident
with a satisfactory quid pro quo for the common-law
rights of recovery which the Act abrogates.
Initially, it is not at all clear that the due
process clause in fact requires that a
legislatively enacted compensation scheme either
duplicate the remedy at common law or provide a
reasonable substitute remedy. (Footnote omitted).
However, we need not resolve this question here
since the Price-Anderson Act does, in our view,
provide a reasonably just substitute for the
common-law or state tort law remedies it replaces.
Cf. New York Central R. Co. v. White, 243 U.S. 188
[37 S.Ct. 247, 61 L.Ed. 667] (1917); Crowell v.
Benson, 285 U.S. 22 [52 S.Ct. 285, 76 L.Ed. 598]
(1932). (Footnote omitted).
The legislative history of the
liability-limitation provisions and the
accompanying compensation mechanism reflects
Congress's determination that reliance
on state tort law remedies and state-court
procedures was an unsatisfactory approach to
assuring public compensation for nuclear
accidents, while at the same time providing the
necessary incentives for private development of
Id. at 87-89, 98 S.Ct. at 2638 (emphasis added). The Supreme
Court further added in relevant part in a footnote:
Appellee's only relevant right prior to the
enactment of the Price-Anderson Act was to
utilize their exiting common-law and state-law
remedies to vindicate any particular harm visited
on them from whatever sources. After the Act was
passed, that right at least with regard to nuclear
accidents was replaced by the compensation
mechanism of the statute, and it is only the terms
of that substitution which are pertinent to the
quid pro quo inquiry which appellees insist the due
process clause requires.
Id. at 88-89 n. 32, 98 S.Ct. at 2638 n. 32 (emphasis added).
The Duke Power case involved a suit by a number of
individuals who lived near certain nuclear plants to challenge
the $560,000,000 limitation on liability for nuclear accidents.
Before the 1988 amendments to the Price-Anderson Act, the
individuals living around the nuclear power plants could have
asserted a public liability action under 42 U.S.C. § 2210(n)(2)
only where there was an "extraordinary nuclear occurrence." In
this context, as is clear from the quoted material above, the
Supreme Court found that the remedies allowed in the
Price-Anderson Act were sufficient. Id. at 87-89, 98 S.Ct. at
2637-39. As discussed earlier in the Price-Anderson Act
amendments of 1988, Congress created jurisdiction for claims
arising out of "nuclear incidents." See,
42 U.S.C. § 2210(n)(2). Thus, it appears that Congress intended that the
law give rise to individual actions under the Price-Anderson
Implicit in the discussion in the Duke Power case is that
Congress has the power to federalize, at the very least, state
tort law remedies. Congress also has the power to federalize
state tort law, as it has done under the Outer Continental
Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq. Under the
OCSLA, Congress extended the application of the Constitution
and laws in the civil and political jurisdiction of the United
States to the outer continental shelf to the same extent as if
the outer continental shelf were an area of exclusive federal
jurisdiction located within a state. 43 U.S.C. § 1333(a)(1).
Since federal law might not readily supply answers to the full
range of potential legal problems arising on the shelf,
Congress declared that the civil and criminal laws of each
adjacent state were declared to be the laws of the United
States on the outer continental shelf to the extent that they
were applicable and not inconsistent with the OCSLA.
43 U.S.C. § 1333(a)(2); Rodrique v. Aetna Casualty Company, 395 U.S. 352,
356-357, 89 S.Ct. 1835, 1837-38, 23 L.Ed.2d 360 (1969) (OCSLA
provides for exclusive regulation by federal law with state law
adopted as surrogate federal law). Congress then provided that
district courts would have jurisdiction of cases and
controversies arising out of or in connection with any
operation conducted on the outer continental shelf.
43 U.S.C. § 1349(b)(1). The jurisdiction of the federal courts to hear
OCSLA cases where state law by its incorporation under the Act
provides the content of the federal rules of decision has not
been seriously questioned. See, Rodrique, 395 U.S. at 356-357,
89 S.Ct. at 1837-38; Tidelands Royalty Corp. v. Gulf Oil Corp.,
804 F.2d 1344, 1347 n. 1 (5th Cir. 1986); Laredo Offshore
Constructors v. Hunt Oil Company, 754 F.2d 1223, 1225 (5th Cir.
1985); Hughes v. Lister Diesels, 642 F. Supp. 233 (E.D.La.
O'Conner asserts that the OCSLA legislative scheme is
distinguishable because Congress was legislating over a
territory as to which it had exclusive property interests.
This Court disagrees because it believes that Congress has
jurisdiction over interstate commerce just as it has
jurisdiction over federal territory. Congress would have the
same power to federalize state causes of action asserting
either basis for jurisdiction.
In this case, under the Price-Anderson Act amendments,
Congress has essentially federalized state common law by
including "nuclear incidents" under the statute granting
jurisdiction to federal courts. See, 42 U.S.C. § 2210(n)(2).
The legislative history supports this position. In its report
on H.R. 1414, the House version of the amendments, the
Committee on Interior and Insular Affairs explains Congress's
intent as follows:
The Committee recognizes, of course, that Article
III of the Constitution limits the types of cases
that federal courts created under that Article
may adhere. For this reason, H.R. 1414 expressly
states that any suit asserting public liability
shall be deemed to be an action arising under the
Price-Anderson Act, thereby making suit asserting
public liability "cases . . . arising under . . .
the laws of the United States" within the meaning
of Article III. Rather than designing a new body of
substantive law to govern such cases, however, the
bill provides that the substantive rules for
decision in such actions shall be derived from the
law of the state in which the nuclear incident
involved occurs, unless such law is inconsistent
with the Price-Anderson Act. The Committee believes
that conferring on the federal courts jurisdiction
over claims arising out of all nuclear incidents in
this manner is within the constitutional authority
of Congress and notes that Congress has used this
approach in the Outer Continental Shelf Lands Act.
H.R.Rep. No. 104, 100th Cong., 1st Sess., Part 1 at 18
Even if the state rules of decisions which are incorporated
in public liability actions under the Price-Anderson Act would
not be regarded as federal law, this Court believes that
Article III nonetheless authorizes federal jurisdiction
because federal questions will inherently arise in cases
litigated under this Act. In other words, there is a
significant federal ingredient to any cause of action asserted
under the Price-Anderson Act.
The primary case relied on by O'Conner for the proposition
that Congress cannot create Article III jurisdiction where
there is no federal substantive law creating the cause of
action is In re TMI Coordinated Proceedings, 735 F. Supp. 640
(M.D.Penn. 1990), appeal argued, 940 F.2d 832 (3rd Cir. 1991).
The TMI case held that Congress exceeded the scope of Article
III by granting, through the Price-Anderson Act Amendments,
subject matter jurisdiction to federal courts over public
liability actions arising out of any nuclear incident. The
court relied on Osborn v. Bank of United States, 22 U.S. (9
Wheat.) 738, 6 L.Ed. 204 (1824) and Verlinden v. Central Bank
of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983),
in reaching its conclusions. The TMI court reasoned that there
would be no need to interpret numerous points of federal law or
to apply a body of substantive federal law; therefore, Congress
had exceeded its power to grant federal courts jurisdiction
under Article III.
This Court respectfully disagrees with the conclusions of
the TMI court. Numerous federal questions will necessarily
arise in the course of litigation under this Act, which
questions must be resolved consistent with the pervasive
federal scheme. In Osborn, the court was called upon to decide
whether Congress could, consistent with Article III of the
Constitution, grant jurisdiction to federal courts to hear
cases brought by the Bank of the United States to vindicate
rights based upon state law. Quoting from Osborn, the court in
The rule is laid down that "it [is] a sufficient
foundation for jurisdiction, that the title or
right set up by the party, may be defeated by one
construction of the constitution or law[s] of the
United States, and sustained by the opposite
Osborn thus reflects a broad conception of "arising
under" jurisdiction, according to which Congress
may confer on the federal courts jurisdiction over
any case or controversy that might call for the
application of federal law.
Verlinden, 461 U.S. at 492, 103 S.Ct. at 1970-71 (quoting
Osborn, 22 U.S. at 822).
The Price-Anderson Act clearly calls for the application of
federal law. Initially, it must be determined as a threshold
matter of federal law whether the action potentially involves
a "nuclear incident" causing damage to property or persons
under 42 U.S.C. § 2014(q).
Other federal questions will also arise in the course of all
public liability litigation. See, Stibitz, 746 F.2d at 996. The
Price-Anderson Act itself not only creates a cause of action
under 42 U.S.C. § 2014(hh). It also provides a period of
limitations for that cause of action at 42 U.S.C. § 2210(n)(1);
it provides for venue at § 2210(n)(2); it provides for choice
of law at § 2014(hh); it specifies limitations on punitive
damages at § 2210(s); it channels liability to licensees
notwithstanding the fact that they may have done no wrong at §
2014(t); it adopts an industry share liability rule at §
2210(b); it requires waivers of defenses under certain
circumstances at § 2210(n)(1); and it establishes an upper
bound on aggregate liability at § 2210(e). Thus, this Court
believes that the Act itself contains numerous provisions of
substantive federal law applicable to public liability
Further, as noted earlier, the Price-Anderson Act explicitly
provides as follows:
The term "public liability action", as used in
§ 2210 of this title, means any suit asserting
public liability. A public liability action shall
be deemed to be an action arising under § 2210 of
this title, and the substantive rules for decision
in such action shall be derived from the law of the
state in which the nuclear incident involved
occurs, unless such law is inconsistent with the
provisions of such section.
42 U.S.C. § 2014(hh). Under this section, even if the claim is
one within the federal compensation scheme, it remains to be
decided, as a matter of federal law, whether the state laws
applied are inconsistent with federal law and policy embodied
under the Act. This determination limits state law and may
raise a federal question sufficient for Article III
Furthermore, the opinions cited by O'Conner which construed
the Price-Anderson Act prior to its amendment would not reach
a different conclusion. The question in Stibitz, 746 F.2d 993
and Kiick, 784 F.2d 490, was whether there was jurisdiction
under 28 U.S.C. § 1331. In determining whether or not there is
a federal question under § 1331 a court applies the
well-pleaded complaint rule which provides that:
for purposes of statutory "arising under"
jurisdiction, . . . the federal question must
appear on the face of a well-pleaded complaint
and may not enter in anticipation of a defense.
Verlinden, 461 U.S. at 494, 103 S.Ct. at 1971. Although the
language of § 1331 parallels the "arising under" language of
Article III, Section 2 of the United States Constitution, the
statutory "arising under" jurisdiction is not identical to
Article III "arising under" jurisdiction. Id. The Supreme Court
As these decisions make clear, Article III
"arising under" jurisdiction is broader than
federal-question jurisdiction under § 1331, and the
Court of Appeals heavy reliance on decisions
construing that statute was misplaced. (Footnote
Id. at 495, 103 S.Ct. at 1972. Thus, cases such as Stibitz and
Kiick which decided whether there is federal question
jurisdiction under § 1331 are not controlling in determining
the power of Congress to confer jurisdiction of the federal
courts under Article III, Section 2 of the United States
In addition, the Commonwealth of Pennsylvania case was not
decided under the Price-Anderson Act amendments of 1988, and it
merely held that there was nothing in the statute or the
legislative history of the Price-Anderson Act amendments
indicating that the federal courts should adopt and apply some
form of federal common law to the issues of liability and
recoverable damaged for nuclear incidents. See, Commonwealth of
Pennsylvania, 710 F.2d at 121-122.
Moreover, the Silkwood case involved the interpretation of
the legislative history of the Price-Anderson Act prior to the
1988 amendments. Silkwood, 464 U.S. 238, 104 S.Ct. 615, 78
L.Ed.2d 443. And, Duke Power's comments that the Price-Anderson
did not create a federal cause of action were also made before
the 1988 amendments to the Price-Anderson Act.
II. Do the Price-Anderson Act Amendments of 1988
Unconstitutionally Interfere With the State's Sovereignty
by Divesting a State Judicial System of Jurisdiction Over
a Pending Case?
O'Conner asserts that the 1988 Amendments are invalid as a
violation of the Tenth Amendment because they interfere with
state sovereignty by divesting a state judicial system of
jurisdiction over a pending case. See, Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528
, 105 S.Ct. 1005,
83 L.Ed.2d 1016 (1985). This argument is rejected because no
state sovereignty question is implicated. The states are not
being directed to comply with federal law which is inconsistent
with the exercise of their own sovereign rights. Id. at
548-549, 105 S.Ct. at 1016-17; see also, Tennessee v. Davis,
100 U.S. 257, 266-267, 25 L.Ed. 648 (1880); Greenwood v.
Peacock, 384 U.S. 808
, 833, 86 S.Ct. 1800, 1815, 16 L.Ed.2d 944
III. Does Retroactive Application of the Removal
Provision Under the Price-Anderson Act Amendments
Violate the Due Process Clause of the Fifth
O'Conner contends that, under the due process clause of the
Constitution, Congress cannot give federal courts jurisdiction
over actions that arose prior to the passage of the 1988
Price-Anderson Act Amendments.
In making his assertion, O'Conner overlooks compelling
established precedent that Congress may authorize removal of
actions already pending in state courts to federal courts.
See, Railway Company v. Whitton's Administrator, 80 U.S. (13
Wall.) 270, 20 L.Ed. 571 (1871). The validity of applying the
removal mechanism in the 1988 Price-Anderson Act Amendments to
actions filed before enactment of the statute depends on
whether such retroactive application is a rational means of
achieving a legitimate congressional purpose. See, Pension
Benefit Guaranty Corp. v. R.A. Gray and Company, 467 U.S. 717,
729-730, 104 S.Ct. 2709, 2717-18, 81 L.Ed.2d 601 (1984); Usery
v. Turner Elkhorn Mining Company, 428 U.S. 1, 15-19, 96 S.Ct.
2882, 2892-94, 49 L.Ed.2d 752 (1976); Terson Company v. Bakery
Drivers and Salesman Local 194, 739 F.2d 118, 120-121 (3rd Cir.
Under the Price-Anderson Act Amendments, Congress wanted to
facilitate equitable and uniform treatment of victims of
nuclear incidents within their own states to insure the
orderly distribution of funds to such victims and to encourage
consolidation of public liability actions that presented
similar issues. See, H.R.Rep. No. 104, 100th Cong. 1st Sess.,
Part 1 at 18, 29, Part 3 at 30; S.Rep. No. 218, 100th Cong. 1st
Sess. at 13 U.S.Code Cong. & Admin.News 1988, pp. 1424, 1488.
These goals are plainly legitimate, and creating removal
jurisdiction over pending public liability actions was a
rational means to achieve these goals. See, In re Consolidated
United States Atmospheric Testing Litigation,
820 F.2d 982, 990 (9th Cir. 1987), cert. denied, Konizeski v.
Livermore Labs, 485 U.S. 905, 108 S.Ct. 1076, 99 L.Ed.2d 235
(1988); Hammond v. United States, 786 F.2d 8, 13-14 (1st Cir.
1986); Sowell v. American Cyanamid Company, 888 F.2d 802, 805
(11th Cir. 1989).
IV. Do the 1988 Price-Anderson Act Amendments Violate the
Equal Protection Clause of the Fourteenth Amendment?
O'Conner maintains that the 1988 Amendments to the
Price-Anderson Act violate the equal protection clause because
they create two classes of victims — victims of past nuclear
incidents and those of future nuclear incidents — in which the
future victims have a larger compensation fund available.
Because no legitimate governmental purpose has been identified
for allowing future victims to have available a significantly
larger compensation fund, O'Conner contends that even the
application of the lowest level of scrutiny under Frontiero v.
Richardson, 411 U.S. 677
, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973)
yields the conclusion that the equal protection clause has been
Again, this Court rejects Plaintiff's analysis. The specific
amount of funds available to satisfy all public liability
claims arising from a single nuclear incident is determined by
the funds available at the time of the nuclear incident and
not by the size of the fund at the time a claim is filed.
See, Duke Power Company, 438 U.S. at 63-67, 98 S.Ct. at
2625-27; 42 U.S.C. § 2210. It is clearly reasonable for
Congress to periodically increase the compensation fund for
future victims of nuclear incidents in anticipation of
inflation and increased costs. See also, Duke Power, 438 U.S.
at 63-67, 92-94, 98 S.Ct. at 2625-27, 2640-41.
Based on the foregoing, this Court DENIES O'Conner's Motion