# Amicus Curiae Brief — English v. General Elec. Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 72

## Text

ED
2 mm

JOSEPH F. SPANIOL, J
CLERK

OCTOBER TERM, 1989

—

— ee

VERA M. ENGLISH, PETITIONER
Vv.

GENERAL ELECTRIC COMPANY

eS ON PETITION FOR A WRIT OF CERTIORARI
oe TO THE UNITED STATES COURT OF APPEALS
ae | FOR THE FOURTH CIRCUIT

a

ee BRIEF FOR THE UNITED STATES
rs 7 AS AMICUS CURIAE

ot KENNETH W. STARR
ee Solicitor General

a JOHN G. ROBERTS, JR.
Geet | ‘Harriet 8S. SHAPIRO
na A, Assistant to the Solicitor General
ie | Department of Justice
Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether Section 210 of the Energy Reorganization
Act, 42 U.S.C. 5851, which provides a federal administra-
tive remedy for employees who suffer employment dis-
crimination in retaliation for making nuclear safety com-
plaints, preempts an employee’s state law tort claim
based on such retaliation.

(1)

TABLE OF CONTENTS

Page

Statement.... 1

EE ET 5

CE 18

| TABLE OF AUTHORITIES
Cases:

Brown & Root, Inc. v. Donovan, 747 F.2d 1029

SESSA 13, 17
California v. ARC America Corp., 109 S. Ct. 1661

I 10
Consolidated Edison Co. Vv. Donovan, 673 F.2d 61

EE, SE 17
Chrisman V. Philips Industries, Inc., 242 Kan. 772,

aE 16

De Canas Vv. Bica, 424 U.S. 351 (1976)... 6

English v. Whitfield, 858 F.2d 957 (4th Cir. 1988) ..2, 3, 16
Farmer Vv. United Brotherhood of Carpenters, 430

Neen wecccncecs 12
Fidelity Federal Savings & Loan Ass’n Vv. De La

Cuesta, 458 U.S. 141 (1982)... nn... 6
Field v. Philadelphia Elec. Co., 565 A.2d 1170 (Pa.

Teen ee cccccnsccvscceseeeses 16
Florida Lime & Avocado Growers, Inc. v. Paul,

ee 7
Gaballah v. PG & #, 711 F. Supp. 988 (N.D. Cal.

1989) ; 9, 11, 16
Goodyear Atomic Corp. y. ‘Miller, 108 ‘s. Ct. 1704

CE TE 15

Greenwcld V. City of North Miami Beach, 587 F.2d
779 (65th Cir.), cert. denied, 444 U.S. 826

EES 14
Hillsborough County v. Automated Medical Labs.,

Ine., 471 U.S. T07 (1985) 2.2. eec cece eecee cee x
Hines V. Davidowitz, 312 U.S. 52 (1941) 7
Jones V. Rath Packing Co., 430 U.S. 519 (1977).... 7

(mi)

IV

Cases—Continued : Page

Kansas Gas & Elec. Co. Vv. Brock, 780 F.2d 1505
(10th Cir. 1985), cert. denied, 478 U.S. 1011
(1986) ........ 17
Kilpatrick v. Delaware County Society for Pre-
vention of Cruelty to Animals, 632 F. Supp. 542
CELE, Be, Se ccnsscccennssettancnaiiiniinipiaamiiiitinaidiaitiiiaes 15
Le Pore v. National Tool & Mfg. Co., 224 NJ.
Super. 463, 540 A.2d 1296 (1988), aff’d, 115
N.J. 226, 557 A.2d 1371, cert. denied, 110 S. Ct.

SED Ce ececvceennietentinns iiliiatcatiaais 15
Mackowiak v. University Nuclear Systems, Inc.,

735 F.2d 1159 (9th Cir. 1984) ............22000.. 17
Malone Vv. White Motor Corp., 485 U.S. 497

CUI wexxccivsicsenesteseaasiniaeiahaeiiniattseniiesiiialtaibaasittiitaalinlaaidie 7
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57

COED tts “cenicitiianhinaeiesabineitit 16
Metropolitan Life Ins. Co. Vv. Massachusetts, 471

Pf S§ F000 7
New York Dep’t of Social Services v. Dublino, 418

FY Ff: awe 8
Norman Vv. Niagara Mohawk Power Corp., 873

se tf § f. 5 ere aaa e 16
Norris v. Lumbermen’s Mutual Casualty Co., 881

F.2d 1144 (1st Cir. 1989) _........... 5, 9, 14, 15, 16, 17, 18

Pacific Gas & Elec. Co. v. State Energy Resources
Conservation and Dev. Comm’n, 461 U.S. 190
0 SEE 12, 18, 14

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)... 8

Rice v. Santa Fe Elevator Corp.. 331 U.S. 218

CRED. cccacetvcininsguisiiiiiaidlinaitiaiaael 6,138
Savage V. Jones, 225 U.S. 501 (1912) -....0.0 7
Schneidewind v. ANR Pipeline Co., 108 S. Ct. 1145

COI incosciscissiininniciiaapiiiiniiiiicanasiiiiaits casein 6

Silkwood v. Kerr-McGee Corp., 464 U.S. 288

ee = 8,10
Snow V. Bechtel Constr., Inc., 647 F. Supp. 1514

Ce SS ee 16
Stokes v. Bechtel N. Am. Power Corp., 614 F.

Supp. 732 (N.D. Cal. 1985) 14, 16
United Constr. Workers v. Laburnum Constr.

Corp., 347 U.S. 656 (1954) 10

Vv

Cases—Continued : Page
Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502,
485 N.E.2d 372 (1985), cert. denied, 475 U.S.
EEE 16
Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir.
LN Ee 12
Constitution, statutes and regulation:
U.S. Const. Art. VI, Cl. 2 (Supremacy Clause) ...... 6
Atomic Energy Act, 42 U.S.C. 2021 (k) -.................. 13
Clean Air Act, 42 U.S.C. 7415 et seq.:
STE Rea 12
FENIAN e . 12
Comprehensive Environmental Response, Compen-
sation and Liability Act of 1980, 42 U.S.C. 9601
et seq.:
ES ae aes 12
Ee 12
Employee Retirement Income Security Act of
Bs Te I, BE 0 BOD cncccececincrcnccccneseeseceeceees 6
29 U.S.C. 1144 ....... (SDE LS ee 6
Energy Reorganization Act, 42 U.S.C. 5851
hai a careanieesensiinnnnntanennsiinansenanenneet passim
ETT TT NE AT ET 3, 4, 10
42 U.S.C. 5851 (b) (2) (A) -.....---- eee. 4
8 RT | Seen 4
a wssidtintpnenmoetonints 4
EE 4,9,17
Federal Water Pollution Control Act, 33 U.S.C.
SE Se 12
Occupational Safety and Health Act of 1970, 29
AS 15
a 15
Resource Conservation and Recovery Act, 42
CE 12
Safe Drinking Water Act, 42 U.S.C. 300f et seq.:
I nn. cncncnasncsanesmssonsces 12
42 U.S.C. 300j-9 (i) (1) 222-222. e ee eeeceeeeeeeeneeeeee ee 12
Toxic Substances Control Act, 15 U.S.C. 2622........ 12
ce 11

VI

Miscellaneous : Page In the Supreme Court of the United States

124 Cong. Rec. 29,771 (1978) 0. ---eccccccccececeeeeeeeeeeeee 11 Octo
47 Fed. Reg. 54,585 (1982) 10 oan anes, 00
S. Rep. No. 848, 95th Cong., 92 Sess. (1978)........ 9,13

No. 89-152

VERA M. ENGLISH, PETITIONER
Vv.

GENERAL ELECTRIC COMPANY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

This brief is filed in response to the Court’s order in-
viting the Solicitor General to express the views of the

United States.
STATEMENT

Petitioner was employed as a laboratory technician at
respondent’s nuclear fuels production facility in Wil-
mington, North Carolina, from 1972 to 1984, when her
employment was terminated (Pet. App. 2a, 7a). In this
diversity action, petitioner contends that respondent re-
taliated against her for making nuclear safety com-

and asserts a state law claim for intentional in-
fliction of emotional distress (id. at 6a).

(1)

2

1. In February 1984, petitioner complained to re-
spondent’s management and to the Nuclear Regulatory
Commission #)out a number of perceived violations of
nuclear safety standards at the Wilmington facility, in-
cluding the alleged failure of her co-workers to clean up
spills of radioactive materials in the laboratory (Pet.
App. 2a, 7a-8a).' Frustrated with her employer’s failure
to address her concerns, petitioner, on one occasion, de-
liberately failed to clean a work table contaminated with
a uranium solution, and instead outlined the contamina-
tion with red cape to bring the matter to the other work-
ers’ attention (id. at 2a, 8a). A few days later, peti-
tioner showed her supervisor the marked-off areas (which
had not been cleaned in the interim), and as a result
laboratory work was halted while the laboratory was in-
enected and cleaned (id. at 8a-9a; English v. Whitfield,
858 F.2d 957, 959 (4th Cir. 1988) ).

On March 15, 1984, respondent charged petitioner with
a knowing failuve to clean up contamination, and tem-
porarily reassigned her to other work (Pet. App. 2a, 9a).
On April 30, 1984, management informed her that she
would be laid off unless she successfully bid within 90
days for a position in an area of the facility that did not
involve exposure to nuclear materials (id. at 10a). On
May 15, 1984, petitioner was notified of the final com-
pany decision affirming this disciplinary action (English
v. Whitfield, 858 F.2d at 959). When petitioner had not
found another position by July 30, 1984, her employmei..
was terminated (id. at 960) .°

1 Although petitioner made similar complaints over the years
(Pet. 6), this action appears to be based solely on events occurring
in 1984 (Pet. App. 2a, 7a-8a).

2 Technically, petitioner was placed on layoff status on July 30,
and thus retained certain benefits and recall rights (see Br. in
Opp. 2 n.1). See also English v. Whitfield, 858 F.2d 957, 960 n.1
(4th Cir. 1988). As a practical matter, however, she was no longer
employed by respondent after July 30, 1984.

3

2. On August 24, 1984, petitioner filed a complaint
with the Secretary of Labor under Section 210 of the
Energy Reorganization Act, 42 U.S.C. 5851, alleging
that respondent’s actions constituted unlawful employ-
ment discrimination in retaliation for her complaints
about nuclear safety violations (Pet. App. 3a n.2, 3la).
An administrative law judge found that respondent vio-
lated the ERA when it transferred and then discharged
petitioner (7. at 30a-56a), but the Secretary dismissed
the comp]=i.uc as untimely because it had not been filed
within 30 days after the May 15 notice of the final com-
pany decision (see Section 5851(b)(1)). English v. Gen-
eral Electric Co., No. 85-ERA-2 (Jan. 13, 1987). The
Fourth Circuit affirmed the dismissal of petitioner’s alle-
gations of unlawful transfer and diccharge, but re-
manded for consideration of her claim that she was sub-
jected to retaliatory harassment after May 15, and that
this harassment constituted a continuing violation. Eng-
lish v. Whitfield, supra. On remand, the ALJ also dis-
missed that claim. English v. General Electric Co., No.
85-ERA-2 (Recommended Decision and Order Apr. 5,
1989). That decision is currently pending before the
Secretary.

3. On March 13, 1987, petitioner filed this action
against respondent in federal district court. Petitioner
alleged that she had been terminated in violation of the
public policy evidenced in federal nuclear safety laws and
that she was suffering from severe denression and emo-
tional difficulties as a result of the employers “inten-
tional, malicious, extreme and outrageous conduct’’ ( Pet.
8; Pet. App. 6a, lla}. In addition to challenging her
employer’s actions in transferring and ultimately firing
her, petitioner alleged that respondent: (1) removed her
from the laboratory position under guard “as if she were
a criminal”; (2) assigned her to degrading “make work’”’
in her substitute assignment; (3) derided her os “para-
noid”; (4) barred her from working in controlled areas;
(5) placed her under constant surveillance during work

4

hours; (6) isolated her from co-workers, even during
lunch periods; and (7) conspired to charge her fraudu-
lently with violations of safety and criminal laws (Pet.
App. 27a). The complaint requested $1,328,645 in com-
pensatory damages and approximately $2.3 billion in
punitive damages (id. at 6a).

The district court granted respondent’s motion to dis-
miss, concluding that petitioner’s wrongful discharge and
emotional distress claims were preempted by the whistle-
blower protection provisions of 42 U.S.C. 5851, and al-
ternatively that she had failed to state a valid cause of
action for wrongful discharge under North Carolina law
(Pet. App. 6a-29a). The court first rejected the com-
pany’s arguments that Section 5851 regulates matters of
nuclear safety—a field preempted by the federal govern-
ment—and that petitioner’s complaint concerned mat-
ters in that preempted field (id. at 17a, 18a). But it
held (id. at 19a-23a) that three aspects of that statute
nevertheless manifest a pervasive, comprehensive federal
scheme that would be frustrated by pursuit of state law
remedies: (1) the provision barring recovery by any
employee who “deliberately causes a violation of any re-
quirement of [the ERA] or of the Atomic Energy Act”
(42 U.S.C. 5851(g)); (2) the absence of any provision
for exemplary (or punitive) damage awards by the Sec-
retary of Labor (42 U.S.C. 5851(b) (2) (B));* and (3)
the requirement that whistleblowers file their administra-
tive complaints within 30 days after the violations occur,
and that the Secretary resolve such complaints within 90
days after filing (42 U.S.C. 5851(b) (1) and (2) (A)).
As the court perceived it, Congress enacted these provisions
to obtain speedy resolution of nuclear safety concerns, ,to

3 The statute does, however, provide for recovery of exemplary
damages in civil actions brought by the Secretary to enforce her
remedial orders in district court. See 42 U.S.C. 5851(d) (district
courts “have jurisdiction to grant all appropriate relief including,
but not limited to, injunctive relief, compensatory, and exemplary
damages” ).

5

limit exemplary damage awards against the nuclear in-
dustry, and to preclude reinstatement and compensation
of employees who violate nuclear safety requirements—
goals that are incompatible with the broader remedies
available under state tort law (Pet. App. 2la-22a). Be-
cause the only claims in petitioner’s complaint related to
re..liatory actions affecting her “terms, conditions, or
privileges of employment,” matters cognizable under Sec-
tion 5851, the court concluded that it lacked subject-
matter jurisdiction over the action (Pet. App. 28a-29a).'

In a per curiam opinion, the Fourth Circuit affirmed
the dismissal of petitioner’s emotional distress claim for
the reasons stated by the district court (Pet. App. 1la-
3a). The court of appeals r-jected petitioner’s argu-
ment that Congress did not intend to foreclose whistle-
blowers from pursuing state tort remedies, and concluded
that the district court “correctly identified and applied
the relevant federal and state law” (id. at 3a).

DISCUSSION

In holding that petitioner’s claim for intentional in-
fliction of emotional distress is preempted by the ERA,
the court of appeals has misread Congress’s intent in
enacting whistleblower protection for nuclear industry
employees. Moreover, the Fourth Circuit’s decision
squarely conflicts with the decision of the First Circuit
in Norris v. Lumbermen’s Mutual Casualty Co., 881 F.2d
1144 (1989). In our view, certiorari should be granted

* The court alternatively held that petitioner failed to state a
cause of action for wrongful discharge, because North Carolina law
does not recognize the tort of wrongful discharge absent a specific
duration employment contract, the giving of additional considera-
tion for protected tenure, or a discharge for refusing to give per-
jured testimony (Pet. App. 24a-25a). The court concluded that
petitioner had stated a valid state law claim for intentional inflic-
tion of emotional distress (id. at 26a-27a).

5 Petitioner did not appeal the dismissal of her wrongful dis-
charge claim, and that claim is accordingly no longer at issue.

6

to resolve this conflict over the prover interpretation of a
significant federal statute.

1. Contrary to the conclusion of the courts below, the
ERA does not preempt an employee’s state cause of ac-
tion for intentional infliction of emotional distress result-
ing from retaliation for making nuclear safety com-
plaints. The Fourth Circuit’s analysis of the preemptive
effect of Section 5851 is unsound both as a matter of
statutory interpretation and because it overlooks the
strong presumption against federal preemption in areas
of traditional state concern.

a. Pursuant to the Supremacy Clause, U.S. Const. Art.
VI, Cl. 2, Congress may preempt state law in several
ways. See Fidelity Federal Savings & Loan Ass’n V.
De La Cuesta, 458 U.S. 141, 153 (1982); Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230 (1947). First, Con-
gress can provide expressly that federal law be given pre-
emptive effect. The Employee Retirement Income Security
Act of 1974 (ERISA), 29 U.S.C. 1001 et seqg., among
other statutes, provides a familiar example. See 29 U.S.C.
1144. Absent explicit statutory language, intent to pre-
empt can also be found in a “scheme of federal regula-
tion * * * * so pervasive as tc make reasonable the in-
ference that Congress left no room for the States to sup-
plement it.” Fidelity Federal Savings & Loan Ass’n V.
De La Cuesta, 458 U.S. at 1538, quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. at 230. Preemptive intent can
also be found in an Act of Congress that “touch[es] a
field in which the federal interest is so dominant that the
federal system will be assumed to preclude enforcement
ef state laws on the same subject,” or in cases where “the
object sought to be obtained by the federal law and the
character of obligations imposed by it” support the same
assumption. Rice v. Santa Fe Elevator Corp., 331 U.S.
at 230; accord Schneidewind v. ANR Pipeline Co., 108
S. Ct. 1145, 1150-1151 (1988). But ef. De Canas v.
Bica, 424 U.S. 351, 359-360 (1976). In addition, state
jaw is preempted to the extent that it actually conflicts

7

with federal law, «.e., where it is impossible to comply
with both federal and state law (see Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143
(1963)). Finally, preemption also lies where the state
law “stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress”
(Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

In preemption inquiries, “[t]he purpose of Congress is
the ultimate touchstone.” Metropolitan Life Ins. Co. v.
Massachusetts, 471 U.S. 724, 747 (1985); Malone v.
White Motor Corp., 435 U.S. 497, 504 (1978). By virtue
of important and sensitive federalism concerns, it is pre-
sumed that Congress ordinarily does not intend to dis-
place existing state legislative authority, and “{w]here
* * * the field which Congress is said to have pre-empted
has been traditionally occupied by the States,” the intent
of Congress to supersede state laws must be “clear and
manifest.” Jones v. Rath Packing Co., 430 U.S. 519, 525
(1977). Cf. Savage v. Jones, 225 U.S. 501, 533 (1912)
(state law is deemed to be in conflict with an Act of Con-
gress only if the “purpose of the Act cannot otherwise be
accomplished—if its operation within its chosen field else
must be frustrated and its provisions be refused their
natural effect’).

b. In light of these principles, the courts below erred
in concluding that Section 5851 preempts petitioner’s
claim of intentional infliction of emotional distress. Noth-
ing in the statute’s language or legislative history pro-
vides “clear and manifest” evidence of congressional! in-
tent to create an exclusive remedy for nuclear industry
whistleblowers. Moreover, the availability of state rem-
edies wili not frustrate,\and may even further, the con-
gressional objective in Section 5851 of promoting the safe
use of nuclear energy.

Section 5851 does not, of course, contain an expres
preemption provision. Nor can preemption be implied
either from the existence of a federal remedy or from
any of the specific factors considered by the courts below.

8

In the first place, the mere existence of a federal rem-
edy—even a rather comprehensive federal remedy—does
not imply preemption of state remedies. As this Court
has noted, “[u]ndoubtedly, every subject that merits con-
gressional legislation is, by definition, a subject of na-
tional concern. That cannot mean, however, that every
federal statute ousts all related state law. - * Instead,

must look for special features warranting preemp-
tion.” Hillsborough soe v. Automated Medical Labs.,
Inc., 471 U.S. 707, 719 (1985). Even where Congress
has established a comprehensive regulatory or enforce-
ment scheme, preemptive effect may not be inferred with-
out specific indicia of legislative intent to exclude state
activity in that field. See Hilisborough County, 471 US.
at 717 (“merely because the federal provisions [a]re
sufficiently comprehensive to meet the need identified by
Congress d[oes] not mean that States and localities [a]re
barred from identifying additiona: needs or imposing fur-
ther requirements in the field”) ; New York Dep't of So-
cial Services v. Dublino, 413 U.S. 405, 415 (19738 ) (“[t]he
subjects of modern social and regulatory legislation often
by their very nature require intricate and complex re-
sponses from the Congress, but without Congress neces-
sarily intending its enactment as the exclusive means of
meeting the problem”) ; ef. Pilot Life Ins. Co. V. Dedeaux,
481 U.S. 41, 54 (1987) (preemptive effect of ERISA’s
“comprehensive” civil ag en scheme is “fully con-

rmed” by its legislative history).

" The fon Pow basis for the result reached in this case by
the courts below is not entirely clear. In any event, how-

6 The district court first indicated (Pet. App. 19a) that it was
relying on conflict preemption, quoting Silkwood v. Kerr-McGee
Corp., 464 U.S. 238, 256 (1984). But after reviewing Section 5851
and its history, the court then stated that the statute created a
“scheme of federal regulation * * * so pervasive as to make reason-
able the inference that Congress left no room for the States to
supplement it” (Pet. App. 22a-23a). The Fourth Circuit, which
adopted the district court’s reasoning (id. at 3a), did not elaborate

on the matter.

9

ever, they erred in relying on three particular aspects of
the Section 5851 remedial scheme (i.e., the bar to recov-
ery by employees who intentionally violate requirements
of the Atomic Energy Act and the ERA, the lack of any
express provision for exemplary damage awards in the
administrative proceedings, and the expeditious time
frames for filing and adjudication of complaints). Nei-
ther the limited scope and forms of relief available under
the federal statute nor the time limits imposed on pro-
ceedings thereunder are sufficient to indicate a congres-
sional intent to eliminate alternative remedies under state
law.

Nothing in the legislative history supports the infer-
ence the courts below drew from those statutory limita-
tions. The only discussion of those limitations by the
responsible congressional committee was a statement that
Section 5851(g) would deny relief to employees who de-
liberately violate nuclear safety requirements, “{i]n or-
der to avoid abuse of the protection afforded under this
section.” S. Rep. No. 848, 95th Cong., 2d Sess. 30 (1978)
(emphasis added). Absent an indication of any broad
aim to preclude all legal remedies otherwise available to
such employees, it is “pure speculation” to read Section
5851(g) as evincing preemptive intent. Gaballah v. PG
& E, 711 F. Supp. 988, 990 (N.D. Cal. 1989). Moreover,
even if Congress had intended such a result, that fact
alone would not suggest that state remedies should be
denied to all whistleblowers protected by Section 5851.
At most, subsection (g) would allow employers to assert
a federal law defense in state law actions brought by em-
ployees excluded from Section 5851’s protection. See
Norris v. Lumbermen’s Mutual Casualty Co., 881 F.2d
at 1150; Gaballah, 711 F. Supp. at 990.

Similarly, the absence of any authorization for exem-
plary damage awards by the Secretary under Section
5851 does not indicate an implied congressional intent to
bar state actions that permit such awards. In the first
place, Section 5851 apparently does authorize the award-

10

ing of exemplary damages in district court proceedings
(see note 3, supra); its enactment thus was not based, as
the district court believed, on “an informed ‘udgment that
in no circumstances should a nuclear whistle[] blower
receive punitive damages when fired or discriminated
against because of his or her safety complaints” (Pet.
App. 22a (emphasis added)). More importantly, Con-
gress’s decision not to provide a given remedy may re-
flect the particular federal policy objectives addressed by
the federal statute. Such policy choices do not themselves
imply an intent to preclude other remedies under state
law. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
255 (1984); United Constr. Workers v. Laburnum
Constr. Corp., 347 U.S. 656, 663-666 (1954); see also
California v. ARC America Corp., 109 S. Ct. 1661, 1667
(1989) (“[ojrdinarily, state causes of action are not
pre-empted solely because they impose liability over and
above that authorized by federal law”).

Finally, the expeditious time frames in Section 5851
indicate only that Congress wanted federal whistleblower
complaints to be filed and resolved quickly. Although the
courts below perceived the 30-day filing period as a means
by which “the regulatory authorities may discover poten-
tial hazards and violations that might otherwise have gone
undiscovered for an uncertain period of time” (Pet. App.
22a), nothing suggests that a safety rationale motivated
Congress to prohibit other remedies merely because they
might be invoked beyond the 30-day period.’ Considering

7 Neither the courts below nor the parties discuss another provi-
sion of Section 5851 that is arguably relevant to the preemption
analysis. Section 5851(b)(1) requires the Secretary of Labor to
notify the NRC “[{u]pon receipt of * * * a complaint” under the
statute—a mandate that has been implemented through a memoran-
dum of understanding by which the two agencies agree “to cooper-
ate with each other to the fullest extent possible” in all cases
arising under Section 5851. 47 Fed. Reg. 54,585 (1982). Asa
result, the NRC is informed of any allegations of whistleblower
discrimination, thus enabling that agency to address the underlying
safety complaints and to impose its own sanctions on employers

11

the potential difficulties of complainants in complying
with this short time limit, it is more reasonable to assume
that Congress viewed the federal statute as supplement-
ing, not supplanting, any state remedies that might exist.
See Gaballah v. PG & E, 711 F. Supp. at 990.

In sum, none of the aforementioned features of Sec-
tion 5851 supports the conclusion that Congress intended
that statute “to constitute the sole remedy for nuclear
facility emloyees who allege discrimination resulting from
safety complaints” (Pet. App. 3a). Nor do those features
show that Section 5851 reflects federal policy objectives
that cannot be reconciled with the existence of alterna-
tive, broader remedies under state law. They thus fall
well short of the requisite “clear and manifest” evidence
of congressional intent to establish preemption of a state
tort claim, the existence of which reflects the State’s con-
clusion that it has “a substantial interest in regulation of

who retaliate against whistleblowing employees. See 10 C.F.R. 50.7.
Because Section 5851 protects employees who are “about to com-
mence,” “about to testify,” or “about to assist or participate” in
an NRC proceedings, and even protects employees who file only
internal safety complaints with their employer (see note 14, infra),
its notification requirement enables the NRC to learn of incipient
safety complaints that might otherwise be concealed as a result of
employer retaliation.

Although this provision suggests that Congress intended the
Section 5851 scheme to serve a notification function, we do not
believe that Congress intended to preempt state law remedies
merely because state actions might not provide notice of the under-
lying safety issues to the NRC. The brief notification requirement
plainly is not a central focus of the statute. Apart from its spon-
sor’s observation that the information provided “would be most
relevant to the Commission,” 124 Cong. Rec. 29,771 (1978) (re-
marks of Sen. Hart), the legislative history does not mention the
provision, let alone explain its purpose. It is logical to assume that
Congress, while interested in prompt notice of safety problems,
primarily intended Section 5851 to promote whistleblowing activity
by protecting employees against retaliation for their safety com-
plaints—a purpose that might be achieved more fully by permitting
such employees access to the potentially broader remedies available
under state law.

12

the conduct at issue.” Farmer v. United Brotherhood of
Carperters, 430 U.S. 290, 302-303 (1977) .*

ce. The courts below correctly rejected respondent’s ar-
gument (Br. in Opp. 8-10) that a state law emotional dis-
tress claim alleging retaliation for employee safety com-
plaints is preempted in the nuclear field because the sole
purpose of such an action is to ensure nuclear safety. As
the district court recognized (Pet. App. 17a), that argu-
ment fails to acknowledge the valid compensatory pur-
poses served by state actions of this type.

It is well established that Congress has occupied the
field of nuclear safety regulation, apart from certain
limited powers expressly ceded to the States. See Pacific
Gas & Elec. Co. v. State Energy Resources Conservation
and Dev. Comm’n, 461 U.S. 190, 212 (1983). However,

8 We note that some or all of the remedial limitations on which
the courts below relied for the preemption finding are also found
in six other whistleblower protection statutes. See Toxic Sub-
stances Control Act, 15 U.S.C. 2622; Federal Water Pollution Con-
trol Act, 33 U.S.C. 1367; Safe Drinking Water Act, 42 U.S.C.
300j-9(i); Resource Conservation and Recovery Act, 42 U.S.C.
6971; Clean Air Act, 42 U.S.C. 7622; Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA), 42
U.S.C. 9610. Unlike Section 5851, each of those whistleblower pro-
visions exists in a statutory framework thai permits state regula-
tion of the subject matter of the protected whisleblowing. See, e.g.,
42 U.S.C. 7416 (preserving, in Clean Air Act, residual state author-
ity to adopt and enforce air pollution standards). It is therefore
unlikely that Congress, in placing substantive and procedural limits
on the federal remedy in those contexts, meant to foreclose state law
remedies for employees who suffer retaliation for assisting in the
administration of a cooperative federal-state program. See Willy v.
Coastal Corp., 855 F.2d 1160, 1167 n.10 (5th Cir. 1988) (observing
that “[t]he states * * * are traditional partners with the federal
government in the field{[] of * * * environmental regulation,” and
that a state wrongful discharge action brought by an environmental
whistleblower “does not appear to directly conflict with any fed-
eral remedy”). Indeed, preemption would be particularly inappro-
priate under the two statutes that extend protection to whistle-
blowers who assist in state proceedings. See 42 U.S.C. 300j-9(i) (1)
(Safe Drinking Water Act); 42 U.S.C. 9610(a) (CERCLA).

13

this exclusive federal authority does not include regula-
tion for non-safety purposes. See, e.g., Atomic Energy
Act, 42 U.S.C. 2021(k) (“{nJothing in this section shall
be construed to affect the authority of any State or local
agency to regulate activities for purposes other than pro-
tection against radiation hazards’). As this Court has
explained, the test for whether state law falls within an
established field of preemption is “whether ‘the matter
on which the State asserts the right to act is in any way
regulated by the Federal Act.’” Pacific Gas & Elec., 461
U.S. at 213 (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. at 236). In the nuclear safety context, state
action is not prohibited where it is motivated, at least in
part, by economic or other concerns unrelated to nuclear
safety. See 461 U.S. at 212-216.

Despite respondent’s portrayal of the claim for dam-
ages as an attempt to discourage employer conduct re-
lating to nuclear safety, petitioner is seeking recovery
based only on common-law tort principles that bar the
intentional infliction of emotional distress; the state
cause of action does not reflect any state policy specific-
ally concerning nuclear safety complaints. To an even
greater extent than the moratorium on nuclear power
plant construction upheld in Pacific Gas & Electric, an
emotional distress action in this context has a basis in
social and economic policy that saves it from preemption.

This is true even though Section 5851, which also pro-
vides a remedy for the kind of harassment alleged in this
case, Was conceived as part of the federal scheme for
regulating nuclear safety. See Brown & Root, Inc. V.
Donovan, 747 F.2d 1029, 1033 (5th Cir. 1984) (“section
5851 is primarily designed to serve the major purposes of
the ERA, in this case, nuclear safety”); S. Rep. No. 848,
supra, at 29 (“[ujnder this section, employees and union
officials could help assure that employers do not violate
requirements of the Atomic Energy Act”). And it is true
even though the “economic aspect of the state law may
induce an employer to investigate a whistle blower’s com-

14

plaints rather than fire her.” Norris v. Lumbermen’s
Mutual Casualty Co., 881 F.2d at 1151.°

d. Preemption is not required in order to implement
any federai policy. There is no reason to believe that
permitting state causes of action would either interfere
with the Secretary’s authority to adjudicate Section 5851
complaints or would otherwise frustrate the remedial
goals of that Act. As this case demonstrates (see p. 3,
supra), the adjudication of Section 5851 complaints can
proceed independently of any state law proceedings.”
And continued access to state remedies helps achieve Con-
gress’s primary goal by providing an additional, and pos-
sibly at times more effective, means of deterring employer
misconduct that might otherwise impede the NRC’s abil-
ity to resolve nuclear safety problems.

Nor is it significant that Section 5851 is associated
with a federal regulatory scheme that preempts state

® Because petitioner did not appeal from the dismissal of her
wrongful discharge claim, this Court need not consider whether
such a claim would be preempted by Section 5851. A complaint
alleging wrongful termination in violation of the public policy evi-
denced in federal nuclear safety laws might raise a more difficult
preemption issue than that presented here. See Pacific Gas & Elec.,
461 U.S. at 213. But cf., e.g., Stokes v. Bechtel N. Am. Power
Corp., 614 F. Supp. 732, 741-742 (N.D. Cal. 1985) (wrongful dis-
charge claim based on public policy unrelated to nuclear safety
concerns is not preempted). Even a cause ci action based on a
purpose of encouraging nuclear safety complaints may not be pre-
empted if the state’s recognition of such a remedy also furthers a
policy of compensating the victims of unfair employment practices
or some other social or ecoomic objective. See Norris v. Lumber-
men’s Mutual Casualty Co., 881 F.2d 1144 (1st Cir. 1989) (conclud-
ing that wrongful discharge claim is not preempted), discussed pp.
15-17, infra. ;

10 See Greenwald v. City of North Miami Beach, 587 F.2d 779
(5th Cir.), cert. denied, 444 U.S. 826 (1979) (holding that the
analogous whistleblower remedy in the Safe Drinking Water Act is
“entirely independent of any local remedies,” and that such reme-
dies need not be exhausted prior to the filing of a complaint with
the Secretary).

15

law in other respects. As we have explained, the pre-
emptive effect of the Atomic Energy Act and related
statutes is limited to the field of nuclear safety regula-
tion; thus, any state law action that serves non-safety
purposes falls outside the area of exclusive federal au-
thority." Moreover, in rejecting assertions of preemption
of state actions that have a more direct impact on fed-
erally regulated activities than exists here, this Court
in Pacific Gas & Electric and Silkwood recognized that
Congress is willing to tolerate the operation of state laws
that have only incidental regulatory consequences in the
nuclear safety domain. See also Goodyear Atomic Corp.
v. Miller, 108 S. Ct. 1704, 1712 (1988) (an increased
state workers’ compensation award for injury caused by
a safety violation at a government-owned nuclear facility
is an “incidental regulatory pressure” that Congress
finds acceptable). Therefore, even though state remedies
for nuclear whistleblowers may also advance federal
safety interests, it is appropriate, in the absence of any
evidence of a contrary legislative purpose, to assume that
Congress intended to permit the incidental consequences
of those remedies in addition to the federal sanctions.

2. The decision below directly conflicts with the reason-
ing and result in Norris v. Lumbermen’s Mutual Cas-
ualty Co., supra. In Norris, the First Circuit expressly
recognized the conflict (881 F.2d at 1148, 1150), and

11 Similarly, the Occupational Safety and Health Act of 1970, 29
U.S.C. 651 et seq., which preempts state regulation of workplace
safety and health with respect to matters governed by a specific
federal standard, does not preempt state law remedies for employ-
ees who suffer employment discrimination on account of their
having filed complaints, testified or otherwise exercised rights
under the Act, even though the Act itself provides a federal remedy
for the same employer conduct (29 U.S.C. 660(c)). See Le Pore
v. National Tool & Mfg. Co., 224 N.J. Super. 463, 540 A.2d 1296
(1988), aff’d, 115 N.J. 226, 557 A.2d 1371, cert. denied, 110 S. Ct.
36€ (1989) ; accord Kilpatrick v. Delaware County Society for Pre-
vention of Cruelty to Animals, 632 F. Supp. 542, 547-550 (E.D. Pa.
1986).

16

disagreed with the holding in this case. The Norris court
concluded that neither the statutory language nor the
legislative history of Section 5851 indicates congressional
intent to preclude state law remedies. Jd. at 1147-1151.”

Contrary to respondent’s position (Br. in Opp. 20-22),
the disagreement on the preemption issue between the
Fourth and First Circuits is unmistakable. It cannot be
avoided by highlighting, as respondent attempts to do, cer-
tain differences between the two cases. Although Norris
involved a wrongful discharge claim, whereas the decision
below involves an emotional distress claim, the differing
results in the cases cannot be explained away on that
basis. Indeed, the district court here found that both
petitioner’s wrongful discharge claim and her emotional
distress claim were preempted on identical grounds."
Thus, even though the Fourth Circuit considered pre-
emption under Section 5851 only with respect to an emo-

12 The district courts have also reached divergent results on
whether state law actions brought by nuclear whistleblowers are
preempted. Compare Snow v. Bechtel Constr., Inc., 647 F. Supp.
1514 (C.D. Cal. 1986) (state remedies preempted), with Gaballah
v. PG & E, supra (state remedies not preempted), and Stokes v.
Bechtel N. Am. Power Corp., 614 F. Supp. 732 (N.D. Cal. 1985)
(same). The state courts are also in disagreement. Compare
Chrisman V. Philips Industries, Inc., 242 Kan. 772, 751 P.2d 140
(1988) (state remedies preempted), with Wheeler v. Caterpillar
Tractor Co., 108 Ill. 2d 502, 485 N.E.2d 372 (1985) (state remedies
not preempted), cert. denied, 475 U.S. 1122 (1986), and Field v.
Philadelphia Elec. Co., 565 A.2d 1170 (Pa. Super. Ct. 1989) (same).
Cf. Norman v. Niagara Mohawk Power Corp., 873 F.2d 634 (2d
Cir. 1989) (Section 5851 provides exclusive federal remedy).

13 For purposes of determining that Section 5851 of the ERA
preempts state law remedies, the district court treated petitioner’s
emotional distress claim as indistinguishable from her wrongful
discharge claim since both claims alleged conduct cognizable under
Section 5851. Pet. App. 23a-24a, 28a-29a. See also English v.
Whitfield, 858 F.2d 957, 963-964 (4th Cir. 1988) (citing Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), for the proposi-
tion that retaliatory harassment sufficiently onerous to create a
“hostile work environment” violates Section 5851).

17

tional distress claim, the preemption analysis it adopted
would apparently lead to the same result in a wrongful
discharge claim. See note 9, supr-.

Nor is it significant that, unlike petitioner, the em-
ployee in Norris had made on!v internal safety coii-
plaints* and was not himself accuzed of any nuclear
safety violation,” or that the employer in Norris was a
contractor that did not operate a nuclear facility (see
Br. in Opp. 21-22). Neither decision turned on whether
the employee’s conduct was actually protected under fed-
eral law; indeed, in their discussion of the preemption
question, both courts assumed that Section 5851 would
cover the alleged whistleblower activity.’

14 There is some disagreement over whether internal safety com-
plaints constitute protected activity uuder Section 5851. Three
courts of appeals have expressly or impliedly agreed with the Sec-
retary of Labor that they do. Kansas Gas & Elec. Co. vy. Brock, 780
F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986);
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th
Cir. 1984) ; Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d
Cir. 1982) ; but see Brown & Root, Inc. v. Donovan, 747 F.2d 1029,
1036 (5th Cir. 1984) (holding that “employee conduct which does
not involve the emp!oyee’s contact or involvement with a competent
organ of government is not protected under section 5851”). The
First Circuit in Norris found no need to resolve that dispute (see
note 16 infra). Because petitioner presented her safety complaints
to the NRC, that issue is not presented in this case.

18 Although the First Circuit noted that Section 5851(g), which
bars recovery for employees who deliberately violate federal nuclear
safety requirements, presented only “a speculative conflict” with
state law remedies because the’ plaintiff in that case had not been
accused of any such violation, see 881 F.2d at 1150, the court also
observed that any bar on recovery imposed by Section 5551(g)
“would be available to a defendant as a federa! law defense in state
court.” Ibid. Thus, the court appeared to reject the view of the
courts below that the purposes of subsection (g) would be frus-
trated by the very existence of a state law action (see Pet. App.
19a-21a).

1¢ For example, the Norris court stated that there was no need
to consider whether internal complaints are covered by Section 5851,

18

CONCLUSION
The petition for a writ of certiorari should be granted.

Respectfully submitted.

KENNETH W. STARR
Solicitor Genera!

JOHN G. ROBERTS, JR.
Deputy Solicitor General
HARRIET S. SHAPIRO
Assistant to the Solicitor General
ROBERT P. DAVIS
Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

STEVEN J. MANDEL
Counsel for Appellate Litigation

JEFFREY A. HENNEMUTH

Attorney
Department of Labor

JANUARY 1990

because that provision does not preempt state law remedies. 881
F.2d at 1146.

©. s. GOVERNMENT PRimTine orrics; 1990 262203 696

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0851%3A05. Public record. Not legal advice.