* Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 98-30375

(Summary Calendar)

_________________

ROBIN GASSIE; MICHAEL BUCCIERO, JR.;

UNIDENTIFIED PARTIES,

Plaintiffs-Appellants,

versus

SMH SWISS CORPORATION FOR MICROELECTRIC AND

WATCHMAKING INDUSTRIES LIMITED, ET AL.,

Defendants,

SMH US, incorrectly sued as SMH US INC., SMH

SOCIETE SUISSE DE MICROELECTRONICS ET

HOROLOGERIE SA, incorrectly sued as SMH Swiss

Corporation for Microelectric and Watchmaking

Industries, Limited,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

(97-CV-3557-G)

November 24, 1998

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Robin Gassie and Michael Bucciero, Jr., appeal the denial of
 

1 Tritium is “a radioactive isotope of hydrogen with atoms of three

times the mass of ordinary light hydrogen atoms.” MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY 1265 (1994).

 

2 In denying the motion to remand, the district court made the

following observation:

Although Defendants attempt to present two arguments for removal,

namely the Price-Anderson Act and complete preemption based on

pervasive federal regulations of tritium, the federal regulations

Defendants rely upon are merely a supplement to the Price-Anderson

Act. If the Price-Anderson Act does not provide federal

jurisdiction in this case, the federal regulations promulgated under

it will not provide federal jurisdiction either. Therefore,

Defendants’ argument for removal jurisdiction depends upon whether

the Price-Anderson Act applies in this case.

In its brief, SMH agreed with this discussion, calling it “correct[].”

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their motion to remand for lack of subject matter jurisdiction and

the dismissal of their claims. We remand for further factual

development on subject matter jurisdiction.

I

Gassie and Bucciero filed a class action in state court

against SMH Swiss Corporation for Microelectronic and Watchmaking

Industries, Ltd., and SMH (U.S.) Inc. (“SMH”), the manufacturers

and sellers of Swatch watches. They asserted fraud, negligent

misrepresentation, negligence/products liability, breach of

warranties, punitive damages and battery based on the allegation

that the leaching of tritium, a radioactive isotope,1 from Swatches

worn by them had caused “cell disruption.”

SMH removed this suit to federal court based on the PriceAnderson Act, 42 U.S.C. § 2210(n)(2) (1995), and preemption.

Gassie and Bucciero moved to remand. The district court denied the

request, concluding that the Price-Anderson Act established

subject matter jurisdiction.2 
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SMH moved to dismiss all claims. The district court granted

this request as to the products liability/negligence, breach of

warranties, punitive damages and battery claims. Finding the fraud

and negligent misrepresentation claims insufficient to satisfy the

pleading requirement set forth in Federal Rule of Civil Procedure

9(b), it gave Gassie and Bucciero ten days to amend their complaint

to cure this shortcoming. When Gassie and Bucciero failed to file

an amended complaint, it dismissed the outstanding claims and

entered judgment for SMH. Gassie and Bucciero timely appealed.

II

We address the question of subject matter jurisdiction before

considering the appeal’s merits. See Marathon Oil Co. v. Ruhrgas,

145 F.3d 211, 216-17 (5th Cir. 1998) (en banc). SMH, as the

removing party, bears the burden of establishing subject matter

jurisdiction. See Frank v. Bear Stearns & Co., 128 F.3d 919, 921-

22 (5th Cir. 1997) (considering whether or not removal jurisdiction

exists). It maintains that the Price-Anderson Act accords subject

matter jurisdiction. The Act states the following:

With respect to any public liability action arising out

of or resulting from a nuclear incident, the United

States district court 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 [Nuclear Regulatory] Commission

[”Commission” or “NRC”], or the Secretary [of Energy], 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.
 

3 Source material is “(1) uranium, thorium, or any other material which

is determined by the Commission pursuant to the provisions of section 2091 of

this title to be source material; or (2) ores containing one or more of the

foregoing materials, in such concentration as the Commission may by regulation

determine from time to time.” 42 U.S.C. § 2014(z). Special nuclear material is

“(1) plutonium, uranium enriched in the isotope 233 or in the isotope 235, and

any other material which the Commission, pursuant to the provisions of section

2071 of this title, determines to be special nuclear material, but does not

include source material; or (2) any material artificially enriched by any of the

foregoing, but does not include source material.” Id. § 2014(aa). The

definition of byproduct material appears infra.

 

4 SMH maintained below that tritium, by virtue of being a radioactive

material, comes within § 2210(n)(2). The district court agreed.

 

5 Parts 30 and 32 regard the domestic licensing of byproduct material.

Tritium is mentioned in the following sections of those parts: 30.15, 30.19,

30.55, 32.14-.15, 32.22, 32.40, 32.53-.56, 32.71 and 32.101. See 10 C.F.R. pts.

30, 32 (1998).

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42 U.S.C. § 2210(n)(2) (1995). Through a series of interlocking

propositions, SMH endeavors to establish this case as falling

within this provision (“§ 2210(n)(2)”). A public liability action,

which § 2210(n)(2) concerns, is “any suit asserting public

liability”))that is, “any legal liability arising out of or

resulting from a nuclear incident.” Id. §§ 2014(w), (hh). A

nuclear incident, in turn, is “any occurrence, including an

extraordinary occurrence, within the United States causing, within

or outside of the United States, bodily injury, sickness, diseases,

or death . . . arising out of or resulting from the radioactive,

toxic, explosive or other hazardous properties of source, special

nuclear, or byproduct material.”3 Id. § 2014(q). Tritium, the

material at issue, is a byproduct material because NRC regulations

“specifically designate” it as one and “extensively regulate its

use in watches and other timepieces.”4 See 10 C.F.R. pts. 30, 32

(1998).5 This logic, SMH says, places this case within §

2210(n)(2)’s confines. 
 

6 Whether or not tritium is a byproduct material is a question of fact.

 

7 “Unlike the definitions of source and special nuclear materials, the

. . . definition of byproduct material does not expressly confer power on an

administrative agency to expand on the statutory definition.” 1 JOHN-MARK

STENSVAAG, HAZARDOUS WASTE LAW § 4.17 (1993).

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We find SMH’s argument persuasive until the final step, which

draws a link between byproduct material and tritium.6 A byproduct

material is “(1) any radioactive material (except special nuclear

material) yielded in or made radioactive by exposure to the

radiation incident to the process of producing or utilizing special

nuclear material, and (2) the tailings or wastes produced by the

extraction or concentration of uranium or thorium from any ore

processed primarily for its source material content.”7 42 U.S.C.

§ 2014(e) (1995). The NRC regulations to which SMH points adopt

the first part of this definition. See 10 C.F.R. § 30.4 (1998).

They also frequently discuss tritium, see id. pts. 30, 32; indeed,

in one instance, tritium and byproduct material are mentioned in

the same breath, see id. § 30.15. The regulations, however, fail

to indicate whether they concern all tritium or just tritium that

is byproduct material. See 1 STENSVAAG, supra §§ 4.17 n.12, 4.19

(“Accelerator-produced radionuclides are not byproduct materials

because they do not result from the utilization of special nuclear

materials or the processing of source materials.”) (“the . . .

definition [of byproduct material] technically includes only

material yielded or made radioactive by certain processes”). This

silence raises the following questions:

(1) Is all tritium byproduct material?
 

8 We expect that the information needed to answer the questions can be

ascertained without much discovery. For example, testimony by a knowledgeable

member of the NRC’s staff might be enough.

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(2) If not, is tritium used by SMH byproduct material? 

The present record provides no answers to these queries. It does

not include evidence that either tritium generally or tritium used

by SMH is “radioactive material (except special nuclear material)

yielded in or made radioactive by exposure to the radiation

incident to the process of producing or utilizing special nuclear

material.” Because of this, we conclude that this case should be

remanded to the district court to develop facts sufficient to

resolve whether or not all tritium is byproduct material and, if

not, whether or not the tritium used by SMH is byproduct material.8

See United States ex rel. Miss. Rd. Supply Co. v. H. R. Morgan,

Inc., 528 F.2d 986, 986-87 (5th Cir. 1976) (per curiam) (remanding

for development of facts critical to resolving subject matter

jurisdiction); cf. Marathon Oil, 145 F.3d at 225 (“Because of the

novelty of some of the subject-matter jurisdiction claims, and

because our court has been understandably pre-occupied in

reconciling the confused state of our precedent concerning a

district court’s obligations, we remand the issue of whether there

exists federal subject-matter jurisdiction to the able district

court for its determination in the first instance.”).

IV

We REMAND this case for further factual development on the

issue of subject matter jurisdiction. After the district court

acquires sufficient facts, it should reconsider whether or not it
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possesses subject matter jurisdiction.