Legal News

50 Years After Nuclear Tests, Bikini Atoll Case Hits Federal Circuit

By Dan Slater

Continuing on our island theme, let’s chart a southwest course, from Hawaii to Bikini Atoll, a series of islands in the Republic of the Marshall Islands. Today, the Bikini islanders, known as Bikinis, headed to court to attempt to fetch the majority of a $563.3 million settlement they won from the Nuclear Claims Tribunal back in 2001.

According to a media advisory put out by Akin Gump, the firm that represented the Bikinis in their appeal today before the Federal Circuit, in 1958, the U.S. government ended 12 years of nuclear testing in the Marshall Islands, leaving much of the Bikini Atoll contaminated and uninhabitable. Fifty years later, those who were evicted from Bikini by the U.S. government are seeking what they say is just compensation under the Fifth Amendment for the “many resultant indignities they suffered, from the loss of their homes and livelihoods to the horrific effects of radiation poisoning.” (Last August, Judge Christine Odell Cook Miller, of the United States Court of Federal Claims, dismissed the suit filed by the Bikinis attempting to recover the settlement funds, saying both that the Bikinis had missed the 6-year statute of limitations under the Tucker Act, and that they had filed too early because Congress could still act.) Here’s an NYT story on the Bikinis’ case.

Today, Akin’s Patricia Millett (pictured, right) argued the appeal, although Jonathan Weisgall has been the Bikinis’ lead lawyer for 33 years (he took the case when he was 25). In fact, Weisgall is so wrapped up in the case that, in 1994, he wrote “Crossroads: The Atomic Tests at Bikini Atoll.”

In Akin’s media advisory, Millett draws the following distinction between the Bikinis and enemy combatants:

This case turns the Constitution on its head. Last month, the Supreme Court held that the doors of American courthouses are open to enemy combatants. Last summer, a court in Washington, D.C., held that those same doors are closed to Bikini Islanders. . . .The plaintiffs who have been kicked out of court include 400 U.S. citizens who, like all the Bikinians, have sacrificed their lands and livelihood for the nation. And one of those plaintiffs is an American soldier who, as the court of appeals hears his case, is putting his life on the line in Iraq for a Constitution and Bill of Rights that his enemies can enforce in court, but he cannot.

We caught up with Millett, post-argument, to ask her how it went. She said the Federal Circuit appeared focused on whether the fact that Congress passed a statute in the 80’s setting up the Nuclear Claims Tribunal trumps the Bikini’s Constitutional rights. She said that the 2001 settlement with the Nuclear Claims Tribunal wasn’t an “ordinary settlement,” because a national government and a local government merely came to an agreement. “Can that trump individual rights?” asks Millett. “Our response is that Congress can’t contract itself out of the Constitution.”

Full post as published by Law Blog - WSJ.com on August 07, 2008 (boomark / email).