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

No. 89-152

A 1990

In the Supreme Court of the UuifeP tebe"

OCTOBER TERM, 1989

VERA M. ENGLISH, PETITIONER

uv.

GENERAL ELECTRIC COMPANY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

ROBERT P. DAVIS Assistant to the Solicitor General

Solicitor of Labor Department of Justice

ALLEN H. FELDMAN Wash ington, D.C. 20530

Associate Solicitor (202) 633-2217

STEVEN J. MANDEL

Counsel for Appellate Litigation

JEFFREY A. HENNEMUTH

Attorney

Department of Labor

Washington, D.C. 20210

» JR,

nai

QUESTION PRESENTED

Whether Section 210 of the Energy Reorganiza-

tion Act, 42 U.S.C. 5851, which provides a federal

administrative remedy for employees who suffer em-

ployment discrimination in retaliation for making

nuclear safety complaints, preempts an employee’s

state law tort claim based on such retaliation.

(1)

TABLE OF CONTENTS

Page

Interest of the United States .............................................. 1

ne msuneneenrecovens 2

a uivoemsosonss 7

Argument:

Petitioner’s state-law tort claim arising out of em-

ployer retaliation for making nuclear safety com-

plaints is not preempted by federal law .................... 9

A. Congress’s occupation of the field of nuclear

safety regulation does not preclude tort actions

based on employer retaliation for making nv-

custinaneneouosoonce 12

B. Section 210 does not occupy the field of nuclear

whistleblower remedies or conflict with peti-

EE ES 16

a snssuseusuoneccueove 25

TABLE OF AUTHORITIES

Cases:

Boyle yv. United Technologies Corp., 108 S. Ct.

a ccousunonsons 21

Burdine v. Texas Dep’t of Community Affairs, 450

a euseniononce 22

California vy. ARC America Corp., 109 S. Ct. 1661

ee ceccuueuernereees 8, 19, 22

De Canas v. Bica, 424 U.S. 851 (1976) .000000000..... 10, 18

Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325

ee covesnusateeonecesaseasss 13

English v. General Elec. Co., No. 85-ERA-2 (4th

re emecsensesscueve 4

English v. Whitfield, 858 F.2d 957 (4th Cir.

gy EEE 3

Farmer v. United Bhd. of Carpenters, 430 U.S.

, ) EEE ee 7,11,13

Fidelity Federal Savings & Loan Ass’n Vv. De la

Cuesta, 458 U.S. 141 (1982) ................................. 9,10

(111)

IV

Cases—Continued: Page

Florida Lime & Avocado Growers, Inc. Vv. Paul,

Se Me GE IIE iececcchicectiententnebelieemaieen 10

Gaballah v. PG & E, 711 F. Supp. 988 (N.D. Cal.

TEIIIET cnricssssoscissdapesdenitadenncambemaseniicmmenmaamnaiedaasa diame 15, 22, 24

Goodyear Atomic Corp. Vv. Miller, 486 U.S. 174

cc 15-16

Hillsborough County v. Automated Medical Labs.,

BS ge a hs Sh eres 8,18

Hines Vv. Davidowitz, 312 U.S. 52 (1941) 220000000... 10

Jones V Rath Packing Co., 430 US. 519 (1977)..... 7,11

Kilpatrick v. Delaware County Society for Pre-.

vention of Cruelty to Animals, 632 F. Supp. 542

es. i I idincieaiddhntty ete 17

Lepore 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.

NE ieee eae a 17

Malone v. White Motor Corp., 435 U.S. 497

EFS Cee OEE a eee Sores MTD 10

Masters v. Daniel Int’l Corp., No. 88-1345 (10th

BE SA TE SEITE. sxc>, ceccvechiniseieaenissnediindandiontaiataitindadsins 14

Metropolitan Life Ins. Co. Vy. Massachusetts, 471

Fer ee Ie a AOR ne 10

Motor Coach Employees v. Lockridge, 403 U.S. 274

ee RI NLR TSE a 19

New York Dep’t of Social Services v. Dublino,

Ie ee a iE 19

Northwest Cent. Pipeline Corp. v. State Corp.

Comm’n, 109 S. Ct. 1262 (1989) 2.000.000... 20

Norris Vv. Lumbermen’s Mut. Casualty Co., 881

eo fF: Fe fh SS eee 14, 15, 21

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm’n, 461 U.S. 190

(1983) .. ; a ...1, 12, 18, 14, 16

Pilot Life. Ins. Co. Vv. " Dedeous, “481 U.S. 41

, Pree rn eee meee mR oe 19

Puerto Rico Dep't of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 495 (1988) 0.0.00... 11

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

eS NEN eS Det Oks F's eh FS Bw 9,10

Savage v. Jones, 225 U.S. 501 (1912) 0000000. 1l

Vv

Cases—Continued : Page

Schneidewind v. ANR Pipeline Co., 485 U.S. 293

EERE eee reese oem snr ree ES ETRE 9,10,14

Shaw vy. Delta Air Lines, Inc., 463 U.S. 85 (1983) .. 9

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

: EERE Svein oer Crocs eum e nena 7, 8, 15, 16, 21, 23

Stokes v. Bechtel N. Am. Power Corp., 614 F.

7 D. £8 14

Tafflin v. Levitt, 110 S. Ct. 792 (1990) ................. ll

United Constr. Workers v. Laburnum Constr.

Cm., BRT Tits Ge COU D cccrecvesctntectattenttiinengscsticnnnsas 21

Wheeler y. Caterpillar Tractor Co., 108 Tll.2d 502,

485 N.E.2d 372 (1985), cert. denied, 475 U.S.

BE CID nets enscccccerctnis-covscesssnentencesoncctenctnttbsencsans 15

Woodruff v. Miller, 64 N.C. App. 364, 307 S.E.2d

BI GUID werceteesncctsscstnicncnsenescnnnssssensssscnnsevenssnnnseneiones 13

Constitution, statutes and regulation:

8 Ee SE Raa eee neneeenen tease meaner 9

Atomic Energy Act of 1954, 42 U.S.C. 2021 (k).... 12

Clean Air Act, 42 U.S.C. 7401 et seq.:

Ee es UN hntirinnetnnccsarnsensnensseneenemepeiesemninens 24

ee TI orice ss conscsvimabeeveteneccsmneutmnictansantnionse 24

ee ee ID GID. cansncascnensiinenenpiinentnnainenninin 24

a te PD ecibccssctsenneiiecsentavctinntrccemnineesel 24

Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980, 42 U.S.C. 9601

et seq.:

REE eet et eect or Scr = CL ROR OUR 24

| IRESEEEREESEN eo ee orate oir ono Pe 24

do eienisanionss 24

RTI eS Ree NETS LIE 24

Employee Retirement Income Security Act of

ee ee i cuueeieennaann 9

Energy Reorganization Act of 1974, 42 U.S.C.

5801 et seq.:

§ 210, 42 U.S.C. 5851 ............ ....1, 3, 5, 8, 11, 16, 17, 19,

20, 21, 22, 23, 24, 25

§ 210(b) (1), 42 U.S C. 5851 (b) (1) 0. 3, 6

§ 210(b) (2) (A), 42 U.S.C. 5851(b) (2) (A)... 4,

§ 210(b) (2) (B), 42 U.S.C. 5851(b) (2) (B)... = 4

§ 210(c)-(e), 42 U.S.C. 5851 (c)-(e)

VI

Statutes and regulation—Continued : Page

§ 210(d), 42 U.S.C. 5851 (d) ............................ 5, 8, 9, 22

§ 210(g), 42 U.S.C. 5851 (g).................... 5, 8, 20, 21, 22

Federal Coal Mine Health and Safety Act of 1969,

Pub. L. No. 91-173, 83 Stat. 758:

Be Os TIES GIT cecnictncnceccnceesccinenccsnssnees 19

IE 19

Federal Water Pollution Control Act Amendments

of 1972, 33 U.S.C. 1361 et seq.:

I 24

I ; 24

ile 24

SRE I non er ee na RE 24

National Labor Relations Act, 29 U.S.C. 151 et

RED DE EN A ARE e eee ee Une PTO nS 19

§ 8(a) (4), 29 U.S.C. 158(a) (4) 2200. 19

Occupational Safety and Health Act of 1970, 29

I 17

SR LCE SERS i ee aE 17

Resource Conservation and Recovery Act of 1976,

42 U.S.C. 6901 et seq.:

A ee Re eR 24

I 24

LA! EERE ano amenan Snoeeeee 24

Ge Cs PRD cicieicectecececsccinesacccce SAM een U ee 24

Safe Drinking Water Act, 300f et seq.:

ETE NaS 24

OO cctiniinsin 24

42 U.S.C. 300j-9(1) (2) (A)........0000....cccecce-..0...... 24

ge eS LT | eee 24

42 U.S.C. 300j-9 (i) (2) (B) (ii) (IV) 24

Toxic Substances Control Act, 15 U.S.C. 2601 et

seq.:

ERS Nae nr ET eae 23

i scsanniconemmls 24

16 UBC. SERB CD) (1) ccccccncocecccnceeseese iethisthinaaiaie, 24

BE WG. BEC) CB) IBD occccccceccececccecccnceecceesss. 24

EIS. EE ee ne ee eS 24

PP Ea MOTT sainniisicttniaieiniinenpnetsnhiiniihtaititiainaii 23

Vil

Miscellaneous: Page

i i i ccscatmsesnnian 1, 23

W. Prosser, Law of Torts (4th ed. 1971) .................. 13

S. Rep. No. 848, 95th Cong., 2d Sess. (1978) ............. 19, 20

Statement of Robert P. Davis, Solicitor of Labor,

before the Subcomm. on Labor-Management Re-

lations, House Comm. un Education and Labor

cI FO ceteris 18

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-152

VERA M. ENGLISH, PETITIONER

Vv.

GENERAL ELECTRIC COMPANY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

Section 210 of the Energy Reorganization Act, 42

U.S.C. 5851, authorizes the Department of Labor to

adjudicate allegations of employees who claim they

have suffered employment discrimination in retalia-

tion for making nuclear safety complaints. The Nu-

clear Regulatory Commission (NRC) does not par-

ticipate in proceedings instituted under Section 210,

but is extremely interested in learning of safety vio-

lations by licensees of nuclear facilities. See 47 Fed.

Reg. 54,585 (1982). This case presents the issue

whether Section 210 preempts state law tort reme-

dies otherwise available to employees who si fer

retaliation because thev “blew the whistle’ on nu-

clear safety violations. That issue implicates the De-

(1)

2

partment of Labor’s programmatic interest in ensur-

ing full and adequate relief to such employees and

the NRC’s interest in ensuring compliance with nu-

clear safety regulations; as a result, the United

States has a substantial interest in the outcome of

this case. The Court previously recognized the gov-

ernment’s interest when, at the jurisdictional stage,

it invited the Solicitor General to file a brief express-

ing the views of the United States.

STATEMENT

Petitioner Vera English was employed from 1972

to 1984 as a laboratory technician at the nuclear

fuels production facility in Wilmington, North Caro-

lina, operated by respondent General Electric. In

this diversity action, petitioner contends that General

Electric retaliated against her for making nuclear

safety complaints, and asserts a state law claim for

intentional infliction of emotional distress. Pet. App.

2a, 6a-7a.

1. In February 1984, petitioner complained to

General Electric’s management and to the Nuclear

Regulatory Commission (NRC) about a number of

perceived violations of nuclear safety standards at

the Wilmington facility. She complained in —articu-

lar about the failure of her co-workers to clean up

spills of radioactive materials in the laboratory.’

Frustrated with her employer’s failure to address

her concerns, petitioner, on one occasion, deliberately

failed to clean a work table contaminated during a

preceding shift with a uranium solution. Instead,

she outlined the contamination with red tape to bring

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).

3

the matter to the other workers’ attention. A few

days later, petitioner showed her supervisor the

marked-off areas, which had not been cleaned in the

interim. As a result, work was halted while the

laboratory was inspected and cleaned. Pet. App. 2a,

7a-9a; English v. Whitfield, 858 F.2d 957, 959 (4th

Cir. 1988).

General Electric charged petitioner with a know-

ing failure to clean up contamination, and temporar-

ily reassigned her to other work. On April 30, 1984,

management informed her that she would be laid off

unless she successfully bid within 90 days for a posi-

tion in an area of the facility that did not involve

exposure to nuclear materials. Pet. App. 2a, 9a-10a.

On May 15, 1984, petitioner was notified of the final

company decision affirming this disciplinary action.

When petitioner had not found another position by

July 30, 1984, her employment was terminated.

English . Whitfield, 858 F. 2d at 959, 960.*

2. On August 24, 1984, petitioner filed a com-

plaint with the Secretary of Labor under Section 210

of the Energy Reorganization Act, 42 U.S %. 5851,

which pivhibits emp!oyers from discharging or other-

wise discriminating against “nuclear whistleblow-

ers,” i.e., employees who complain about nuclear

safety violations.* Petitioner alleged that General

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; English v. Whitfield, 858 F.2d at 960

n.l. As a practical matter, however, she was no longer em-

ployed by General Electric after Juiy 30, 1984.

8 If an employee believes that he has been discharged or

otherwise discriminated against in violation of Section 210(a),

he may file a complaint with the Secretary of Labor within

30 days after the violation occurs. 42 U.S.C. 5851(b) (1).

The Secretary investigates the alleged violation, holds a public

4

Electric’s actions constituted unlawful employment

discrimination in retaliation for her complaints to

management and the NRC. Pet. App. 3a n.2, 3la.

An administrative law judge found that General

Electric had vidlated the Energy Reorganization Act

when it transferred and then discharged petitioner.

Id. at 30a-56a. The Secretary, however, dismissed

the complaint as untimely because it had not been

filed within 30 days after the May 15 notice of the

final company decision. English v. General Eleetric

Co., No. 85-ERA-2 (Jan. 13, 1987). The Fourth

Circuit affirmed that decision, but remanded for

consideration of petitioner’s separate claim that she

was subjected to a continuing course of retaliatory

harassment after the May i5 disciplinary decision.

English vy. Whitfield, supra. On remand, the ALJ

also dismissed .hat claim as time-barred. English v.

General Electric Co., No. 85-ERA-2 (Recomraended

Decision and Order Apr. 5, 1989). The ALJ’s rec-

ommended decision is pending before the Secretary.

3. In March 1987, petitioner filed this action

against respondent in federal district court. Peti-

tioner alleged that she had been terminated in viola-

tion of the public policy evidenced in federa! nuclear

safety laws and that she was suffering from severe

depression and emotional difficulties as a result of

hearing, and, within 90 days of receiving the complaint, issues

an order that either provides or denies relief. 42 U.S.C.

5851(b) (2) (A). If a violation is found, the Secretary may

order reinstatement with back pay, award compensatory dam-

ages, and require the violator to pay the employee’s costs and

attorney’s fees. 42 U.S.C. 5851(b) (2) (B). Any person ad-

versely affected by an order of the Secretary may seek review

in the federal court of appeals, and either the Secretary or

the complainant may obtain enforcement of the Secretary’s

orders in federal district court. 42 U.S.C. 5851(c)-(e).

5

her employer’s “intentional, malicious, extreme and

outrageous conduct.” Pet. 8; Pet. App. 6a, lla. In

addition to challenging General Electric’s actions in

transferring and ultimately firing her, petitioner al-

leged that General Electric had: (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) de-

rided her as “paranoid’’; (4) barred her from work-

ing in controlled areas; (5) placed her under con-

stant surveillance during work hours; (6) isolated

her from co-workers, even during lunch periods; and

(7) conspired to charge her fraudulently with viola-

tions of safety and criminal laws. Pet. App. 27a.

Petitioner sought compensatory and punitive dam-

ages.

The district court granted General Electric’s mo-

tion to dismiss. Pet. App. 6a-29a. The court first

rejected the company’s arguments that Section 210

regulates nuclear safety, a field preempted by the

federal government. Jd. at 17a, 18a. But it held

(id. at 19a-23a) that three aspects of Section 210

nevertheless required it to conclude that petitioner’s

state law claims are preempted: (1) the provision

barring recovery by any employee who “deliberately

causes a violation of an; requirement of [the Energy

Reorganization Act] or of the Atomic Energy Act”

(42 U.S.C. 5851(g)); (2) the absence of any pro-

vision for exemplary (or punitive) damage awards

by the Secretary of Labor (42 U.S.C. 5851(b) (2)

(B)):;* and (3) the requirement that whistleblowers

*The statute does, however, provide for the 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 appro-

6

file their administrative complaints within 30 days

after the violations occur, and that the Secretary re-

solve such complaints within 90 days after filing (42

U.S.C. 5851(b)(1) and (2)(A)). As the court per-

ceived it, Congress enacted these provisions te ob-

tain speedy resolution of nuclear safety concerns, to

limit exemplary damage awards against the nuclear

industry, and to preclude reinstatement and compen-

sation of employees who violate nuclear safety

requirements—goals that the court found incomfpat-

ible with the broader remedies available under state

tort law. Pet. App. 21la-22a.°

In a per curiam opinion, the Fourth Circuit af-

firmed the dismissal of petitioner’s emotional distress

claim for the reasons stated by the district court. Pet.

App. la-3a.° The court of appeals concluded that Con-

gress had intended to foreclose nuclear whistleblowers

from pursuing state tort remedies, and stated that

the district court “correctly identified and applied the

relevant federal and state law.” Jd. at 3a.

priate relief including, but not limited to, injunctive relief,

compensatory, and exemplary damages’’).

5 The court alternatively held that petitioner had 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 consideration for protected tenure, or a discharge

for refusing to give perjured testimony. The court concluded

that petitioner had stated a valid state law claim for inten-

tional infliction of emotional distress. Pet. App. 24a-27a.

® Petitioner did not appeal the dismissal of her wrongful

lischarge claim, and that claim is accordingly no longer at

issue.

7

SUMMARY OF ARGUMENT

State law is preempted by implication where Con-

gress has evidenced its intent to occupy a given field

or where state regulation actually conflicts with fed-

eral law. Silkwood v. Kerr-McGee Corp., 464 U.S.

238, 248 (1984). However, the intent to preempt

must be “clear and manifest” where it involves a field

traditionally occupied by the States (Jones v. Rath

Packing Co., 430 U.S. 519, 525 (1977) ), and tort law

is such a field (Farmer v. United Bhd. of Carpenters,

430 U.S. 290, 304 (1977) ).

1. Congress has occupier the field of nuclear safety

regulation. However, the ustrict court correctly con-

cluded that nuclear safety concerns are “only tan-

gential” to petitioner’s tort claim. Pet. App. 17a. Its

decision that preemption is therefore not warranted

on account of intrusion into nuclear safety matters is

confirmed by this Court’s decision in Pacific Gas &

Elec. Co. v. State Energy Resources Conservation a:

Dev. Comm’n, 461 U.S. 190, 213 (1983). In that

case, the Court upheld a state law establishing a mor-

atorium on nuclear power plant certification because

it determined that there was “a nonsafety rationale”

supporting it. States have authorized awards for in-

tentional infliction of emotion distress not because of

any concern with nuclear safety, but because of their

traditional interest in protecting ciiizens from abuse.

Farmer, 430 U.S. at 302. Accordingly, such tort ac-

tions do not intrude on the field that Congress has

occupied. That conclusion is also supported by the de-

cision in Silkwood, where the Court held that state

tort remedies for exposure to radiation are not pre-

empted because Congress has not “expressly sup-

planted” those remedies. 464 US. at 255.

8

2. The courts below erred by concluding that peti-

tioner’s claim for intentional infliction of emotional

distress is preempted by Section 210, the “nuclear

whistleblower” provision. Section 210 does not occupy

a “field,” but is merely a single statutory remedy for

a particular type of employment discrimination by

employers in a single industry. In any event, even a

comprehensive regulatory scheme preempts state law

only if there are “special features warranting pre-

emption” (Hillsborough County v. Automated Medical

Labs., 471 U.S. 707, 719 (1985)), and there afe no

“special features” in this case. Neither the statute

nor its legislative history provide any reason to con-

clude that Congress intended to supplant, rather than

supplement, state remedies.

None of the three provisions of Section 210 relied

upon by the district court conflict with petitioner’s

claim in a manner that warrants preemption or indi-

cates that Congress intended to occupy the field of

nuclear whistleblower protection. Section 210(g),

which provides that “Subsection (a) of this section”

does not provide a remedy to employees who deliber-

ately violate safety regulations, says nothing about

state tort remedies. Moreover, any potential conflict

can be eliminated by allowing employers to assert a

federal law defense incorporating Section 210(g) in

state actions. Nor does the absence of a provision in

Section 210 authorizing the Secretary to award ex-

emplary damages require preemption. “Ordinarily,

state causes of action are not pre-empted solely be-

cause they impose liability over and above that au-

thorized by feder..! law” (California v. ARC America

Corp., 109 S. Ct. 1661, 1667 (1989) ), and there is no

evidence that Congress intended not to allow ex-

emplary damage awards against operators of nuclear

facilities. See Silkwood, 464 U.S. at 245 (affirming a

9

$10 million punitive damage award against the oper-

ator of a nuclear facility) ; Section 210(d) (author-

izing district courts to award exemplary damages in

enforcement actions brought by the Secretary). Like-

wise, the expeditious time frames in Section 210 sim-

ply indicate that Congress wanted federa! whistle-

blower complaints to be resolved quickly. That a 30-

day limit for filing federal claims is not inconsistent

with state regulation is clear from the fact that six

other federal whistleblower statutes—each cf which

operates in a field where state regulation is not

preempted—also have such a requirement.

ARGUMENT

PETITIONER’S STATE-LAW TORT CLAIM ARISING

OUT OF EMPLOYER RETALIATION FOR MAKING

NUCLEAR SAFETY COMPLAINTS IS NOT PRE-

EMPTED BY FEDERAL LAW

State law is preempted under the Supremacy

Clause, U.S. Const. Art. VI, Cl. 2, in three circum-

stances. See Schneidewind v. ANR Pipeline Co., 485

U.S. 293, 299 (1988); Fidelity Federal Savings &

Loan Ass’n v. De la Cuesta, 458 U.S. 141, 152-153

(1982); Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 236 (1947). In the first situation—not appli-

cable here—Congress defines expressly the extent to

which its enactments have preemptive effect. See,

e.g., the Employee Retirement Income Security Act

of 1974 (ERISA), 29 U.S.C. 1144(a), construed in

Shaw vy. Delta Air Lines, Inc., 463 U.S. 85, 95-97

(1983). Second, in the absence of explicit statutory

language, state law is preempted where it regulates

conduct in a field that Congress intended to occupy

exclusively. Such an intent may be inferred from a

“scheme of federal regulation * * * so pervasive as

to make reasonable the inference that Congress left

10

no room for the States to supplement it,” or where an

Act of Congress “ ‘touch[es] a field in which the fed-

eral interest is so dominant that the federal system

will be assumed to preclude enforcement of state laws

on the same subject.’” Schneidewind v. ANR Pipe-

line Co., 485 U.S. at 299-300 (quoting Rice v. Santa

Fe Elevator Corp. 331 U.S. at 230). Third, state

law is preempted to the extent that it actually con-

flicts with federal law. Thus, preemption is inferred

where it is impossible to comply with both federal and

state requirements (see Florida Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963) ),

or 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 all preemption inquires, the “ultimate touch-

stone” is Congress’s purpose in enacting the particu-

lar law claimed to have preemptive effect. Metro-

politan Life Ins. Co. v. Massachusetts, 471 U.S. 724

747 (1985); Malone v. White Motor Corp., 435 U.S.

497, 504 (1978); see also Fidelity Federal Savings &

Loan Ass’n v. De la Cuesta, 458 U.S. at 152 (“[t]he

pre-emption doctrine * * * requires us to examine

congressional intent”); De Canas v. Bica, 424 U.S.

351, 363 (1976) (finding no preemption, even in the

predominantly federal area of immigration regula-

tion, where there was “affirmative evidence * * *

that Congress sanctioned concurrent state legislation

on the subject covered by the challenged state law’’).

Because preemption raises important and sensitive

federalism concerns, it is presumed that Congress

ordinarily does not intend to displace existing state

authority.” Moreover, “!w]here * * * the field which

7 It is axiomatic that, “under our federal system, the States

possess sovereignty concurrent with that of the Federal Gov-

11

Congress is said to have preempted has been tradi-

tionally occupied by the States,” the intent of Con-

gress to supersede state laws must be “clear and

manifest.” Jones v. Rath Packing Co., 430 U.S. at

525; see also Puerto Rico Dep’t of Consumer Affairs

v. Isla Petroleum Corp., 485 U.S. 495, 500 (1988)

(congre ‘sional preemption of state regulation cannot

be ar -aplished “subtly”); cf. Savage v. Jones, 225

U.S. 501, 533 (1912) (state law is deemed to be in

conflict with an Act of Congress only if the “purpose

of the act cannot otherwise be accomplished—if its

operation within its chosen field else must be frus-

trated and its provisions be refused their natural

effect’’).

Tort law is a field traditionally occupied by the

States. In Farmer v. United Bhd. of Carpenters, 430

U.S. 290, 304 (1977), the Court recognized “the

legitimate and substantial interest of the State in

protecting its citizens” by allowing intentional in-

fliction of emotional distress claims, and held that

the plaintiff’s claim was not preempted by the Na-

tional Labor Relations Act. Since in this case there

is no claim that Congress has expresly preempted

state law, petitioner’s intentional infliction of emo-

tional distress action is preempted only if it is “clear

and manifest” that the claim infringes on a field that

Congress has occupied to the exclusion of the States

or if there is an actual conflict between federal and

state law such that allowing petitioner to go forward

with her claim will frustrate the purposes underly-

ing Section 210.

ernment, subject only to limitations imposed by the Supre-

macy Clause.” Tafflin v. Levitt, 110 S. Ct. 792, 795 (1990).

12

A. Congress’s Occupation Of The Field Of Nuclear Safety

Regulation Does Not Preclude Tort Actions Based On

Employer Retaliation For Making Nuclear Safety

Complaints

Congress has occupied the field of nuclear safety

regulation. However, the courts below correctly re-

jected General Electric’s contention that petitioner’s

emotional distress claim is therefore preempted. As

the district court explained, “while nuclear safety is

of concern in this action it is only tangential, to the

action itself.” Pet. App. 17a. This Court’s decision

in Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm’n, 461 U.S. 190 (1983),

makes clear that where state law serves a valid pur-

pose unrelated to nuclear safety, it is not preempted

despite some relationship to nuclear matters.

A California law that imposed a moratorium on

the certification of nuclear power plants until a state

commission found that there had been a federally-

approved technology for the disposal of nuclear

wastes was at issue in Pacific Gas & Elec. Co. The

Court held that the law was not preempted. Based

on the legislative history of the Atomic Energy Act

of 1954 and subsequent amendments, which showed

that Congress intended exclusive federal regulation

of “the radiological safety aspects involved in the

construction and operation of a nuclear plant,” the

Court first concluded that “the Federal Government

has occupied the entire field of nuclear safety con-

cerns, except the limited powers expressly ceded to

the States.” 461 U.S. at 212. At the same time,

the Court emphasized that this exclusive federal au-

thority over safety matters does not extend to the

regulation of nuclear facilities for economic and

other non-safety purposes. Jd. at 205-212; see, e.7.,

Atomic Energy Act, 42 U.S.C. 2021(k) (“[n]Jothing

13

in this section shall be construed to affect the au-

thority of any State or local agency to regulate ac-

tivities for purposes other than protection against

radiation hazards”). Accordingly, the Court held

that whether the California moratorium was pre-

empted depended on “whether there is a nonsafety

rationale” supporting it. Pacific Gas d& Elec. Co.,

461 U.S. at 213. The Court concluded that there was

a valid economic purpose for the moratorium, since

the California legislature was concerned that nu-

clear power plants might ultimately be shut down if

acceptable permanent waste disposal methods were

not developed, and upheld the law despite its rela-

tionship to nuclear power.

Petitioner’s claim is not preempted because there

is a nonsafety rationale supporting a state law action

for intentional infliction of emotional distress. In-

deed, unlike the California law at issue in Pacific

Gas d: Elec. Co., emotional distress actions bear no

special relationship to nuclear matters. Rather, they

are generally available to victims of intentional har-

assment, and reflect the state’s “substantial interest

in protecting its citizens from the kind of abuse of

which [petitioner] complain[s].” Farmer v. United

Bhd. of Carpenters, 430 U.S. at 302; see also Dickens

v. Puryear, 302 N.C. 437, 276 S.E.2d 325, 331

(1981) (liability arises in North Carolina when

“conduct exceeds all bounds usually tolerated by de-

cent society” and “causes mental distress of a very

serious kind,” citing W. Prosser, Law of Torts § 12,

at 56 (4th ed. 1971)); Woodruff v. Miller, 64 N.C.

App. 364, 307 S.E.2d 176, 178 (1983) (recogniz-

ing that the tort of intentional infliction of emo-

tional distress “provides an orderly way for the com-

munity to disapprove of [extreme and outrageous

conduct] and compensate those victimized by it’).

Thus, to an even greater extent than the moratorium

14

upheld in Pacific Gas & Elec. Co., by which the state

arguably sought to regulate plant construction for

safety purposes, an emotional distress action has a

basis in non-nuclear social and economic policy that

saves it from preemption.*

® Because petitioner did not appeal from the dismissal of

her wrongful discharge claim, whether such a claim would be

preempted by Section 210 is not at issue. The arguments

against preemption are less apparent in the context of a

wrongful discharge complaint based on the public policy evi-

denced in federal nuclear safety laws since nuclear safety is

a matter of exclusively federal concern. See Pacific Gas &

Elec. Co., 461 U.S. at 213 (“[a] state moratorium on nuclear

construction grounded in safety concerns falls squarely within

the prohibited field’’) ; see also Schneidewind v. ANR Pipeline

Co., 485 U.S. at 309 (state law preempted “whose central pur-

pose is to regulate matters that Congress intended * * * to

regulate”). But that difference does not command a different

result. Even though protection of whistleblower activity im-

plicates nuclear safety concerns, a state tort action is not pre-

empted under Pacific Gas & Elec. Co. if it also effectuates a

public policy distinct from nuclear safety. While, as we have

discussed, the nonsafety rationale for an emotional distress

claim is manifest, similar policies underlie any other tort or

contract remedies for wrongfully discharged employees. See,

e.g., Norris v. Lumbermen’s Mut. Casualty Co., 881 F.2d 1144,

1152-1153 (1st Cir. 1989) (state interest in assuring good

faith and fair dealing in commercial transactions, including

employment contracts, and in promoting a general policy

against termination of at-will employees in violation of a

mandated public policy) ; Stokes v. Bechtel N. Am. Power

Corp., 614 F. Supp. 732, 741-742 (N.D. Cal. 1985) (state policy

of “ensuring the continued employment and job security of its

citizens * * * and in advancing the state’s economic produc-

tivity through the promotion of the nuclear industry”) ; but

see Masters Vv. Daniel Int’l Corp., No. 88-1345 (10th Cir. Feb.

6, 1990), slip op. 4 (Section 210 “preempts any state law claim

for wrongful termination for reporting safety violations un-

der the Act’’).

15

The conclusion that petitioner’s claim is not pre-

empted on account of intrusion on the nuclear safety

field is reinforced by this Court’s decision in Silk-

wood v. Kerr-McGee Corp., 464 U.S. 238 (1984). In

that case the Court held that state tort remedies for

radiation-based injuries, including punitive damages,

were available since “Congress assumed that tradi-

tional principles of state tort law would apply with

full force unless they were expressly supplanted.” Id.

at 255 (emphasis added). The Court reached that

conclusion even though it recognized that “there is

tension between the conclusion that safety regulation

is the exclusive concern of the federal law and the

conclusion that a State may nevertheless award dam-

ages based on its own law of liability.” Jd. at 256.

The relationship of petitioner’s claim to nuclear

safety concerns is certainly no more direct than in

Silkwood, where the plaintiff’s decedent was actually

harmed by radiation. Thus, even though nuclear

safety concerns are tangentially implicated by peti-

tioner’s suit, it is not barred since Congress has not

provided that claims such as petitioner’s are “ex-

pressly supplanted” by federal law.’ See also Good-

®The Silkwood Court, in upholding tort remedies for

radiation-related injuries, found “added significance” in the

absence of any federal remedy for such injuries. See 464 U.S.

at 251. But that was not the basis for the Court’s decision.

We agree with the First Circuit that, absent a clear expres-

sion of congressional inent, there is “no good reason for

barring state remedies to whistle blowers but allowing puni-

tive damages [for injuries] * * * that might not have oc-

curred if the whistleblower’s complain‘s had been investi-

gated.” See Norris v. Lumbermen’s Mut. Casualty Co., 881

F.2d at 1151; see also Gaballah v. PG & E, 711 F. Supp. 988,

990 (N.D. Cal. 1989) (finding Silkwood persuasive in the

the whistleblower context); Wheeler v. Caterpillar Tractor

Co., 108 Ill. 2d 502, 485 N.E.2d 372, 376 (1985) (same).

16

year Atomic Corp. v. Miller, 486 U.S. 174, 186

(1988) {an increased state workers’ compensation

award for injury caused by a safety violation at a

government-owned nuclear facility is “incidental reg-

ulatory pressure” that Congress finds acceptable).

B. Section 210 Does Not Occupy The Field Of Nuclear

Whistieblower Remedies Or Conflict With Petitioner’s

Claim

Although the courts below correctly recognized

that petitioner’s claim is not preempted by Con-

gress’s occupation of the field of nuclear safety, they

went on to hold the claim preempted by Section 210.

The district court first indicated that it was analyz-

ing petitioner’s claim and Section 210 to determine

“ ‘whether there is an irreconcilable conflict between

federal and state standards.’” Pet. App. 19a (quot-

ing Silkwood, 464 U.S. at 256). After completing

its conflict analysis, however, the court stated that it

found the “ ‘scheme of federal regulation . . . so per-

vas ve as to make reasonable the inference that Con-

gress left no room for the States to suppleme + it.’ ”

Pet. App. 22a-23a (quoting Pacific Gas & Elec. Co.,

461 U.S. at 204). Thus, the precise basis for the

court's decision—i.e., whether it is grounded on the

theory that Congress has occupied the field of nu-

clear whistleblower regulation or on the theory that

petitioner’s claim actually conflicts with Section 210

—is not entirely clear. However, an intent to pre-

empt is not properly inferred under either theory.

1. As an initial matter, it would be odd to con-

clude that nuclear whistleblowing. by itself, is a

“field.” Labor relations between nuclear employers

and their employees might be a “field” that Congress

would choose to occuny (but has not), as might is-

sues relating generally to retaliation by employers

17

against their employees for blowing the whistle on

unsafe or illegal activities. But Section 210 is

merely a single statutory provision granting a rem-

edy to employees in one industry for one type of dis-

crimination by employers.” Section 210 is not a code

of conduc: governing nuclear labor relations compre-

hensively or a code governing whistleblowing gen-

erally.”

10 It makes no difference that Section 210 bears some rela-

tionship to the nuclear safety field. As we have shown, and

as the courts below concluded, petitioner’s claim is not pre-

empted on account of any infringement on the field of nuclear

safety regulation. Moreover, the Occupational Safety and

Health Act of 1970, 29 U.S.C. 651 et seq., preempts state reg-

ulation of workplace safety and health with respect to matters

governed by a specific federal standard, but does not preempt

state law remedies for employees who suffer employment dis-

crimination on account of their having filed complaints, testi-

fied, or otherwise exercised rights under the Act, even though

the Act itself (29 U.S.C. 660(c)) provides a federal remed;

for the same employer conduct. See Lepore v. National Tool

& Mfg. Co., 224 N.J. Super. 463, 5410 A.2d 1296 (1988),

aff’d, 115 I.J. 226, 557 A.2d 1371, cert. denied, 110 S. Ct. 366

(1989); accord Kilpatrick v. Deiaware County Society for

Prevention of Cruelty to Animals, 632 F. Supp. 542, 547-550

(E.D. Pa. 1986).

11In commenting on a bill that would provide comprehen-

sive federal whistleblowing remedies, the Department of

Labor recently recommended that Congress expressly pre-

empt state remedies. Although General Electric finds it “in-

explicablf[e]” that the government does not think that Section

210 preempts state law given its position on the pending

legislation (see Supp. Br. in Opp. 3-4), the Solicitor of Labor

explained that the Labor Department recommended preemp-

tion of state whistleblower remedies as part of “the proper

balance to strike in the context of a uniform law” that “vould

apply to many different industries and situations,” as distin-

|

18

In any event, the mere existence of a federal regu-

latory or enforcement scheme—even a rather com-

prehensive one—does not imply preemption of state

remedies. As this Court has noted, “|u]ndoubtedly,

every subject that merits congressional legislation is,

by definition, a subject of national concern. That

cannot mean, however, that every federal statute

ousts all related state law. * * * Instead, we must

look for special features warranting preemption.”

Hillsborough County v. Automated Medical. Labs.,

471 U.S. at 719 (emphasis added). Thus, even

where Congress has established a comprehensive reg-

ulatory or enforcement scheme, preemptive effect

may not be inferred without specific indicia of leg-

islative intent to exclude state activity in that field.

See id. at 717 (“merely because the federal provi-

sions [a]re sufficiently comprehensive to meet the

need identified by Congress d[oes] not mean that

States and localities [a]re barred from identifying

aaditional needs or imposing further requirements in

the field”); De Canus vy. Bica, 424 U.S. at 359 (the

“seope and detail” of the Immigration and Nation-

ality Act does not evidence preemptive intent be-

cause the “comprehensiveness of legislation govern-

ing entry and stay of aliens [i]s to be expected in

light of the nature and complexity of the subject’) ;

guished from tne single-ir.dustry approach embodied in exist-

ing law. See Statement of Robert P. Davis, Solicitor of Labor,

before the Subcomm. on Labor-Management Relations, House

Comm. on Education and Labor, at 1 (Nov. 16, 1989). More-

over, an obvious difference exists between advocating policies

in regard to pending legislation and interpreting the intent

behind existing laws. If anything, the Labor Department’s

support for express preemptive language in the proposed

whistleblower legislation suggests its recognition that exist-

ing law does not preempt state remedies,

19

New York Dep’t of Social Services v. Dublino, 413

U.S. 405, 415 (1973) (“[t]he subjects of modern

social and regulatory legislation often by their very

nature require intricate and complex responses from

the Congress, but without Congress necessarily in-

tending its enactment as the exclusive means of

meeting the problem”); cf. Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 54 (1987) (preemptive effect

of ERISA’s “comprehensive” civil enforcement

scheme is “fully confirmed” by its legislative his-

tory).”

An examination of the language and legislative

history of Section 210 reveals no “special features”

warranting a finding of preemptive intent. The stat-

ute simply prohibits employment discrimination

against employees who make nuclear safety com-

12 Respondent’s reliance (Br. in Opp. 14) on decisions con-

struing the preemptive effect of the National Labor Relations

Act (NLRA), 29 U.S.C. 151 et seq., is misplaced. As an

initial matter, that statute comprehensively deals with labor-

management relations from the inception of organizational

activity through the negotiation of a collective bargaining

agreement. Moreover, special factors support the conclusion

that preemption of state labor relations law is warranted—

specifically, Congress’s perception that the NLRA was needed

because state legislatures and courts were unable to provide

an informed and coherent labor policy. See Motor Coach

Employees Vv. Lockridge, 403 U.S. 274, 286 (1971). In addi-

tion, even though the drafters of Section 210 patterned it

after Section 8(a) (4) of the NLRA, 29 U.S.C. 158(a) (4)

(see S. Rep. No. 848, 95th Cong., 2d Sess. 29 (1978)), they

also based it (see ibid.) on the corresponding provision of

the Federal Coal Mine Health and Safety Act of 1969, Pub.

L. No. 91-178, §110(b) (1), 83 Stat. 758—in which Con-

gress expressly declined to preempt state laws in the same

field. See § 506, 83 Stat. 803. Thus, in Congress’s view, a

whistleblower remedy, by itself, does not require preemption.

20

plaints and provides an administrative mechanism

by which that prohibition can be enforced. Although

its provisions are fairly detailed and comprehensive,

the statute nowhere prohibits other remedies for the

same conduct, or mandates procedures or remedies

that are inherently inconsistent with other forms of

relief. Moreover, as this Court recently observed,

“Toljrdinarily, state causes of action are not pre-

empted solely because they impose liability over and

above that authorized by federal law.” California v.

ARC America Corp., 109 S. Ct. at 1667 (Holding

that indirect purchasers may sue under state law to

recover overcharges resulting from unlawful price-

fixing, even though federal antitrust laws allow only

direct purchasers to recover). Therefore, the fact

that a federal statute provides limited remedies does

not require preemption, unless there is a “clear pur-

pose of Congress” to that effect. See ibid.” Thus,

the fact that Congress enacted Section 210 does not

support the conclusion that it has “occup[ied] an

entire field of .egulation, leaving no room for the

States to supplement federal law.” Northwest Cent.

Pipeline Corp. v. State Corp. Comm’n, 109 S. Ct.

1262, 1273 (1989).

2. The district court found preemption based on

its analysis of three provisions of Section 210—its

bar to recovery by employees who deliberately violate

18 The legislative history of Section 210 reveals no “clear

purpose” to supplant state causes of action that might afford

broader relief. Indeed, the only explanation for any of the

statute’s remedial limitations is the responsible congressional

committee’s statement that employees who deliberately violate

nuclear safety requirements would be denied protection under

Section 210(g) “fi]n order to avoid abuse of the protection

afforded under this section.” S. Rep. No. 848, supra, at 30

(emphasis added).

21

federal nuclear safety requirements, the absence of

any express provision for exemplary damage awards

in the administrative proceedings, and the time lim-

its for filing and adjudicating complaints. However,

those limitations only purport to govern complaints

brought under Section 210. Since Congress’s decision

not to provide a particular remedy typically reflects

only the federal policy objectives addressed by the

statute in question, such policy choices do not gen-

erally imply an intent to preclude States from in-

voking their own remedies. See Silkwood v. Kerr-

McGee Corp., 464 U.S. at 255; United Constr. Work-

ers v. Laburnum Constr. Corp., 347 U.S. 656, 663-

666 (1954).

Furthermore, a detailed analysis of the three pro-

visions fails to indicate any conflict warranting pre-

emption of petitioner’s claim. Section 210(g) pro-

vides that “Subsection (a) of this section shall not

apply” where an employee deliberately causes a nu-

clear safety violation. Thus, Section 210(g) specif-

ically limits its applicability to the remedy provided

by Section 210(a), and does not suggest that it bars

state-law actions. Moreover, any federal interest in

prohibiting recovery by whistleblowers who partici-

pated in deliberate safety violations would be served

by preempting state law only to the extent that it

allows recovery by such violators. See Boyle v.

United Technologies Corp., 108 S. Ct. 2510, 2516

(1988) (observing that federal law preempts an en-

tire body of state law only “where the federal inter-

est requires a uniform rule” applicable to the subject

area). Accordingly, Section 210(g), at most, would

ailow employers to assert a federal law defense

against state law claims by employees excluded from

Section 210’s protection. See Norris v. Lumbermen’s

Mut. Casualty Co., 881 F.2d 1144, 1150 (1st Cir.

22

1989) ; Gaballah v. PG & E, 711 F. Supp. 988, 990

(N.D. Cal. 1989) .**

Nor does the absence of authorization for the Sec-

retary to award exemplary damages under Section

210 ‘mply legislative intent to bar state actions that

permit such awards. Section 210(d) authorizes dis-

trict courts to award exemplary damages in enforce-

ment proceedings; thus, contrary to the district court,

Section 210 does not reflect “an informed judgment

that in no circumstances should a nuclear whistle[]

blower receive punitive damages when fired or dis-

criminated against because of his or her safety com-

plaints.” Pet. App. 22a (emphasis added). In addi-

tion, since “fo]rdinarily, state causes of action are

not pre-empted solely because they impose liability

over and above that authorized by federal law” (Cali-

fornia v. ARC America Corp., 109 S. Ct. at 1667),

there is no warrant for preemption merely because

Congress did not authorize the Secretary to award

14 Although the Secretary of Labor has not yet addressed

the issue in the context of an actual] whistleblower complaint,

we believe that the courts below misinterpreted the scope of

subsection (g). The purpose of Section 210 would be defeated

if, as the district court contended, its protection does not

extend to an employee who “has violated a separate and dis-

tinct [nuclear safety] requirement,” but has “neither con-

tributed to nor caused the potential safety violation which he

reported.” Pet. App. 20a. It is more sensible to cc -strue

subsection (g) as barring relief only for those employees who

claim protection because they have “blown the whistle” on

the very safety violation that they have caused. Moreover, in

our view Section 210(g) is essentially a strict version of the

causation element inherent in any anti-discrimiuation law.

See Burdine v. Texas Dep’t of Community Affairs, 450 U.S.

248 (1981). Thus, it serves to bar a remedy under the federal

statute where it is plausible that the employer penalized the

employee for his safety violation, not for his whistleblowing.

23

exemplary damages. See Silkwood (allowing ex-

emplary damage awards in state actions for injury

caused by exposure to radioactive materials).

Likewise, the expeditious time frames in Section

210 primarily indicate only that Congress wanted

federal whistleblower complaints to be filed and re-

solved quickly. To be sure, the 30-day filing require-

ment also helps to ensure. in some cases, that the gov-

ernment is aware of safety violations.” Of course,

that notification purpose is implicated only where an

employer retaliates against an employee who has com-

plained to his employer or has indicated his intention

to alert federal authorities, but who has not yet blown

the whistle to the federal government; if the retalia-

tion is in response to whistleblowing to federal au-

thorities, then they are already aware of the safety

problem whether or not the employee files a discrimi-

nation action under Section 210. In any event, noth-

ing about the 30-day time limit is incompatible with

state actions. In six other whistleblower protection

statutes enacted in the 1970s or early 1980s—the

Toxic Substances Control Act (TSCA), 15 U.S.C.

15 Section 210(b) requires the Secretary of Labor to notify

the NRC “[u]pon receipt of * * * a compiaint” under the

statute. Based on that provision, the two agencies have en-

teed into a memorandum of understanding in which they

agreed “to cooperate with each other to the fullest extent

possible” in all cases arising under Section 210. 47 Fed. Reg.

54,585 (1982). As a 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 who retaliate against

whistleblowing employees. See, e.g., 10 C.F.R. 30.7. In this

case, the NRC imposed a $20,000 fine on General Electric as

a result of its investigation of petitioner’s allegations. Pet.

App. 57a.

24

2622; the Federal Water Pollution Control Act

Amendments of 1972 (FWPCA), 33 U.S.C. 1367; the

Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-

9(i); the Resource Conservation and Recovery Act of

1976 (RCRA), 42 U.S.C. 6971; the Clean Air Act

(CAA), 42 U.S.C. 7622; and the Comprehensive En-

vironmental Response, Compensation and Liability

Act of 1980 (CERCLA), 42 U.S.C. 9610—Congress

also set a 30-day time limit for filing complaints,”

although each of those other provisions exist-in the

context of a cooperative federal-state program that

expressly permits concurrent state regulation. See

TSCA, 15 U.S.C. 2617(a) ; FWPCA, 33 U.38.C. 1370;

SDWA, 42 U.S.C. 300g-3(e); RCRA, 42 U.S.C. 6929;

CAA, 42 U.S.C. 7416; CERCLA, 42 U.S.C. 9614(a).

Thus, it is reasonable to assume that Congress in-

tended Section 210 to supplement, not supplant, any

state remedies that might exist. See Gaballah v.

PG & E, 711 F. Supp. at 990.

Moreover, each of these six other whistleblower

statutes denies coverage to deliberate violators of en-

vironmental statutes,” and only two expressly au-

thorize the Secretary to award exemplary damages."

(In fact, the whistleblower provision of the Clean

Air Act is virtually identical to Section 210.) The

1 See TSCA, 15 U.S.C. 2622(b) (1); FWPCA, 33 U.S.C.

1367(b); SDWA, 42 U.S.C. 300j-9(i) (2) (A); RCRA, 42

U.S.C. 6971(b) ; CAA, 42 U.S.C. 7622(b) (1) ; CERCLA, 42

U.S.C. 9610(b).

'T See TSCA, 15 U.S.C. 2622(e) ; FWPCA, 33 U.S.C. 1367

(d); SDWA, 42 U.S.C. 300j-9(i) (6); RCRA, 42 U.S.C.

6971(d); CAA, 42 U.S.C. 7622(g); CERCLA, 42 U.S.C.

9610(d).

TSCA, 15 U.S.C. 2622(b) (2)(B); SDWA, 42 U.S.C.

300j-9 (i) (2) (B) (ii) (IV).

25

fact that state regulation is permitted under those

other statutes shows that the three subprovisions of

Section 210 on which the district court relied do not

necessarily conflict with concurrent state regulation

or evidence an intent by Congress to occupy the field.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

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

MARCH 1990

W ov. 8. Government printing orrice, 1990 262203 799