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

: |] . Supreme Court, U.S,

, {ff FILED

j * oi

‘) ‘1 war @ ge

No. 89-152 JOSEPH F. SPANIOL, JR,

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

VERA M. ENGLISH, et al,

Petitioner,

Vv.

GENERAL ELECTRIC COMPANY, et al,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE

THE GOVERNMENT ACCOUNTABILITY PROJECT iN

SUPPORT OF PETITIONER

Louis A. Clark

(Counsel of Record)

Thomas E. Carpenter

Edward A. Slavin, Jr.

Richard Condit

Sandra Peaches

Government Accountability Project

25 E Street, NW Suite 700

Washington, DC 20001

202-347-0460

\ ' Table of Contents

: } INTEREST AND EXPERTISE OF AMICUS CURIAE .

in tek, SUMMARY OF ARGUMENT ................-- 2

f ae ae 7 < J THE FOURTH CIRCUIT'S DECISION FRUSTRATES THE

Spo Eig : | | F PUBLIC POLICY OF PROTECTING AND

eas : Se ENCOURAGING WHISTLEBLOWERS ......... 5

6 Beate hy ee re) SE LOS a

i ii ‘ = aes ; ays a oe ane . A. Congressional Policy Uniformly Has Been To

- Aca <i igs cere | Encourage Whistleblowing as Essential for

ha FT a. St eeey saat We. Be, \ Y a f ‘

Ra Pa eS one oe al ’ ¥ :

J Rigo Bite f Se oh al Effective Law Enforcement 6

Tae el gs - " ‘ - 2 ve “enereeeeneeeeeee

idee tal ee Raa, oe CN ere" ec. - J

Me j buses AR 4 rs Hy y sy .F Z hae ae X54 ie ae.

Book) S* SOE uit Bee ee tet wk B. Whistleblower Protection Legislation Is Remedial

BR Gs Pe kpc aENeTS 1 ee . SE thy ae Cons

; PSA ae Meso see . Pa Ff = 4 ae 4 rear “pent: a ‘yA and tu be Liberally trued 086680 6 6 628 © © 10

ere c ; ee 7 ; yy ; ; ims My _:

piein, Seta he ans fe 1 ty OP C. Congress Did Not Intend to Shrink

; eee Se ge ; ' ee fea D. Case Law Supports a Finding of No Preemption 24

eS CONCLUSION ...... 00. ccceeseeseeseeeees 26

2) ty - . * ;

- , : : 2 ‘ ~ z ee - i3 {

TABLE OF AUTHORITIES

Cases

Brock v. Roadway Express, 481 U.S. 252 ore |

Bush v. Lucas, 462 U.S. 367 (1983) ............. 15

California v. ARC America Corp., 109

CE, So eck ccc ccccccccce 12, 13

Chevron, U.S.A. v. NRDC, 467 U.S. 837 (1984) _ .. 26

Chrisman v. Phillips Indussies, 242

Kan. 772, 751 P.2d 140 (1988) .............. 25

Cotton v. Fisheries Products Co., 181

N.C. 151, 106 S.E. 487 a ok 6 6 6 04's. « 18

English v. GE, 683 F. Supp. 1006

(E.D.N.C.1988) aff'd per curiam,

871 F.2d 22 (4th Cir. 1989) ............. 16, 19

Fidelity Federal Savings &

Loan Association v. DeLaCuesta, 458 U.S. 141 (1982)5

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

eee 5

Gaballah v. PG&E, 711 F.Supp. 988

ESE 13, 25

General Electric v. Gilbert, 429 U.S. 125 ee «s«s Ee

Holy Trinity Church v. United States,

Secs ceca ccc sccccces 24

Huckle v Money, 95 Erg.Rep. (K-B.1782) .....---- 18

Lingle v. Norge Division of Magic Chef,

486 U.S. 399 (1988)... eee eee eee 5

McLaren v. Fleischer, 256 U.S. 477 (1921) .....---- 27

Munsey v. Federal Mine Safety

& Health Review Comm.,

595 F.2d 735 (D.C. Cir. 1978) .......----+++- 8

Norris v. Lumbermen’s Mut. Casualty Co.,

881 F.2d 1144 (ist Cir. 1989) ........----5-- 25

Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468

(9th Cir. 1984)... 22. 25

Pacific Gas & Electric Co. v. State Energy Resources

Conservation & Development Commission, 461 U.S. 190

(¢:<) cc 5, 13, 28

Parklane Hosiery v. Shore, 439 U.S. 322 (1979 ..... 16

Phillips v. Board of Mine Operations Appeals,

500 F.2d 772 (D.C. Cir. 1974),

cert. denied, 420 U.S. 938 (1975) .......+-+:: 8

Phipps v. Clark Oil and Refir.ery Co.,

396 N.W.2d 588 (Minn.Ci App. 1986)

ajf'd 408 N.W.2d 569 (Minn. 1987) ......-.--.- 25

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947)) ... 2... eee eee eee eee 5

Silkwood v. Kerr-McGee, 464 U.S. 238 (1984) ..... 3, 13

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

614 F. Supp. 732 (N.D. Cal. 1985) ........... 26

Udall v. T-.uman, 380 U.S. 1 (1965) ............. 26

United States v. Brown, 333 U.S. 18 (1947) ....... 24

United States v. Kirby, 74 U.S.

SF PPE dowd Va eteakeddaneun 23

United States v. Turkette, 452 U.S. 576 (1980) ...... 26

Wheeler v. Caierp ‘lar Tractor Co.,

108 Ill. 2nd 502, 485 N.E.2d 372

(Ill. 1985) cert. denied, 475 U.S. 1122 (1986) .... 25

Wiggins v. Eastern Associated Coal Co.,

357 S.E.2d 745 (W.Va.1987) ..............4.. 24

Administrative Decisions

Nolder v. Ramond Kaiser Engineers, Inc.,

No. 84-ERA-5 (D.O.L., June 28, 1985) ........ 26

Willy v. Coastal Corp., 85-CAA-1 at 4,

Decision and Order of Remand of the

Secretary of Labor (June 4, 1987) ............ 8

iv

Statutes

42 U.S.C. Section 5851... 2... cece ec eee eee eee 2

42 U.S.C. Section 300j-9(i)(2)(B)(ii)) .......---- 18

42 U.S.C. Section 7622 (1988) ..........--5-45- 25

33 U.S.C. Section 1367 (1988) .........--+565- 25

30 U.S.C. Section 815(c)(1988). ... 2... eee eee 25

1 CFR. Section 305.87-2. 0.0... 2c cccccccccees 19

Legislative Materials

124 Cong. Rec. 27548 (S14280)

(daily ed. Aug 24, 1978)

(statement of Sen. Sasser) ........-.---+--5: 4

1978 U.S. Code Cong. & Ad. News 7303 ......... 10

1977 U.S. Code Cong. & Ad. News, 1077, 1404. .... 10

118 Cong.Rec. 10,766-768 (1972)

reprinted in Legislative History of

the Water Pollution Control Act

Amendments of 1972, at 655. ......-.-+-555- 12

U.S. Code Cong. & Ad. News 7303 ..........+-. 16

134 Cong. Rec. $1447 (daily ed. Feb. 25, 1988) .... 21

To Strengthen the Protections Available

to Employees Against Reprisals for Disclosing

Information, to Protect the Public Health and Safety,

and for Other Purposes: Hearing on S.436 Before the

Subcomm. on Labor of the Senate Committee on

Labor and Human Resources, 101st Cong., ist Sess.

37-39 (1989)(statement of Sen. Charles Grassley). 23

uthoriti

H. Perrit, Employee Dismissal Law and Practice, 1987 6

Kohn & Carpenter, Nuclear Whistleblower Protection

and the Scope of Protected Activity Under Section 210

of the Energy Reorganization Act, 4 Antioch L.J. 73,

PRMD, dt a ee k0d oa Pc ees 6

Sands, Sutherland Statutory Construction,

Sec. 60.02, (4th Ed. 1986) ................. 12

NO ne i ie ee ee 18

Eugene R. Fidell, "Federal Protection of

Private Sector Health and Safety Whistleblowers,” 2

Administrative Law Journal (1988) ....... 19

M. P. Glazer & P. M. Glazer, The Whistleblowers

-- Exposing Corruption in Government

Re 24

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

No. 89-152

VERA M. ENGLISH, et al.,

Petitioner,

V.

GENERAL ELECTRIC COMPANY, et al,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE

THE GOVERNMENT ACCOUNTABILITY PROJECT

IN SUPPORT OF PETITIONER

INTEREST AND EXPERTISE OF AMICUS CURIAE

The Government Accountability Project (GAP), an

amicus below, is a public interest group whose staff

attorneys represent employee whistleblowers and speak

on their behalf before Congress and other forums.

Amicus works with whistieblowers to expose

environmental, safety and health problems, fraud,

crimes and waste of federal funds. It is a non-partisan,

tax-exempt group founded in Washington, D.C. in 1977.

GAP staff members worked to wi enactment of

the Whistleblower Protection Act of 1989, passed

unanimously by Congress and signed into law by

President Bush. GAP attorneys have counselled and

represented hundreds of government and curporate

employees, including many with cases filed pursuant to

Section 210 of the Energy Reorganization Act, 42

U.S.C. $5851. GAP has been instrumental in helping

whistleblowers expose problems at nuclear powerplants,

including the Zimmer (Ohio) and Midland (Michigan)

plants, (with Zimmer now coal-fired and Midland now

gas-fired), as well as nuclear weapons plants (among

them Fernald, Ohio; Hanford, Washington; and Rocky

Flats, Colorado).

GAP is filing this brief to provide the perspective of

the whistleblowers who the amicus believes are essential

to open, accountable, law-abiding business and

government conduct. In the nuclear safety arena, in

which this case arises, honest employee whistleblowers

often make the difference between well-constructed and

safely operated nuclear facilities and life-threatening

ones. The United States Congress made a clear choice

to provide protection for these employees - - not to

limit their state law remedies. For this reason GAP is

filing this amicus brief in support of the petitioner,

Vera English.

SUMMARY OF ARGUMENT

The decision below cancels longstanding states’

rights in private employment law, strips whistleblowers

of significant rights and remedies, and threatens federal

law enforcement objectives involving the nuclear

industry.

The nuclear industry appears to have learned little

since this Court decided Silkwood v. Kerr-McGee, 464

US. 238, 258 (1984), establishing that the nuclear

ir~ .y is liable under state law tort actions. Vera

E jish’s harassment and firing occurred within months

of the Silkwood decision, a decision that placed General

Electric on notice of its liability for intentional torts

perpetrated against outspoken employees.

Likewise, nowhere in the expanding body of federal

whistleblower statutes is there any hint of an attempt to

preempt state tort actions for intentional infliction of

emotional distress, or any other tort action. In

numerous environmental statutes state and federal

authorities share overlapping, complemeniary

responsibilities for employee protection. Congress

never demonstrated any intent to preempt tort

jurisdiction of employment actions, an area traditionally

regulated by the states.

Left intact, the decision below would deny states the

authority tc provide, and all American nuclear

employees to receive jury trials, punitive damages, and

other remedies currently afforded to employees in a

majority of states. The decision below relies on the

premise that Congress somehow sought to preempt the

pre-existing or potential tort law of fifty states -- in one

fell swoop without explicit or implicit indication in any

statute or supporting legislative history. There is no

evidence that Congress intended to strip nuclear

whistleblowers of access to state law. To the contrary,

Congress recognized the importance of -- and sought to

encourage -- environmental, safety and health

disclosures as furthering public policy. As the

Chairman of the Civil Service Subcommittee stated

during debate on the 1978 Civil Service Reform Act:

It should be public policy to encourage

whistleblowing rather than chill it.

124 Cong. Rec. 27548 (S14280)(daily ed. Aug 24, 1978)

(statement of Sen. Sasser)

The Fourth Circuit’s decision in En, lish v. General

Electric Co.’ unfairly turns the federal statute into a

Procrustean bed, giving only one federal administrative

remedy to nuciear whistleblowers in states wit’) well-

developed bodies of law for intentional infliction of

emotional distress and other state law actions that ca.

be filed against employers. T.is result would defeat

the statutory objective, stand Congressional intent on its

head, and effectively discriminate against whistleblowers,

placing them at a significant disadvantage compared to ©

similarly-situated employees. This odd result flies in

the face of the long-established Congressional policy of

encovraging and pi. cting such workers. Section 210

of the Energy Reorganization Act was intended to be

a vehicle for supplementing and _ reinforcing

accountability cf the nuclear industry, not shrinking it.

! English v. General Electric Co., 683 F.Supp. 1006

(E.D.N.C.1988), aff'd, 871 F.2d 22 (4th Cir. 1989).

ARGUMENT

I. THE FOURTH CIRCUITS DECISION BELOW

FRUSTRATES THE PUBLIC POLICY OF

PROTECTING AND ENCOURAGING

WHISTLEBLOWERS

Introduction

As this Court has explained, absent a specific

federal statutory mandate, there are several other

circumstances which make preemption necessary, -- (1)

when there is pervasive federal regulation of an entire

field, (Fidelity Federal Savings & Loan Association v.

DeLaCuesta, 458 U.S. 141 (1982); Rice v. Santa Fe

Elevator Corp., 331 US. 218 (1947)); (2) when

compliance with both federal and state regulation is

impossible, (Florida Lime & Avocado Growers, Inc. v.

Paul, 373 US. 132 (1963)); or (3) when a state

regulation interferes with the objective of the federal

regulation (Pacific Gas & Electric Co. v. State Energy

Resources Conservation & Development Commission, 461

U.S. 190 (1983)). Since Section 210 is silent on

preemption, the issue turns on a finding of whether the

field of employment relations is an area pervasively

occupied by the federal government; simultareous

compliance with Section 210 and state law is

impossible; or the state regulation interferes with the

objectives of Section 210. Amicus submits that the

federal government has not pervasively occupied the

field of employment relations, as demonstrated by the

fact that currently a majority of states have some form

of "public policy exception" to the employment-at-will

doctrine? Additionally, state tort law, far from

interfering with the objectives of Section 210, in fact

enhances achievement of the federal statutory goals.

The Fourth Circuit’s decision below would accomplish

the counterproductive result of stifling disclosure.

A. Congressional Policy Uniformly Has Been To

Encourage Whistleblowing as Essential for Effective

Law Enforcement

Whistleblowers are courageous people who report

safety, health, environmental and other hazards, and

violations of criminal and civil laws by their employers.’

Also termed “ethical resisters," whistleblowers are

unique. Congress, as well as federal and state

regulatory and law enforcement agencies have ail relied

on whistleblowers as sources of information for

investigations. Whistleblowers are increasingly treated

as members of an expanding group of employees

protected by federal law. Quite simply they are the

2 See, generally, H. Perrit, Employee Dismissal Law and

Practice, (1987).

3 Kohn & Carpenter, Nuclear Whistleblower Protection and

the Scope of Protected Activity Under Section 210 of the Energy

Reorganization Ac:, 4 Antioch LJ. 73, 74 (1986).

4 M. P. Glazer & P. M. Glazer, The Whistleblowers --

Exposing Corruption in Government and Industry (1989) at 4,

coining the term ethical resister "to denote their commitment to

the principles we all espouse -- honesty, individual responsibility,

and active concern for the public good." In their academic

study, the Glazers discuss case studies of whistleblowers, many

of whom suffered severe emotional distress due to reialiation

for making disclosures.

eyewitnesses upon whom effective law enforcement so

often depends.

; Congress, recognizing these policy objectives, has

included whistleblower protection provisions in over a

dozen pieces of public health, environmental and safety

legislation.’ A compelling declaration of Congressional

intent in the area of whistleblower legislation is found

in the Civil Service Reform Act of 1978.° As the

Senate committee report explained:

Often, the whistleblower’s reward for dedication

to the highest moral principles is harassment and

abuse . . . . Protecting employees who disclose

government illegality, waste, and corruption is a

major step toward a more effective civil service

.... What is needed is a means to assure them

that they will not suffer if they help uncover and

correct administrative atsses . .. . These

conscientious civil servants deserve statutory

5 See, e.g., Asbestos Hazard Emer Response Act of

1986 (AHERA), Pub. L.99-519, §211, 100 om 2970 (to be

codified at 15 1.$.C. §2641); Clean Air Act (CAA), Pub. L.

95-95, 42 U.S.C. § 7622 (1982); Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (CERCLA),

42 U.S.C. §601 (1982); Department of Defense Authorization

Act of 1987 (DOD87), Pub. L. 99-661, §42, 100 Stat. 3816 (to

be codified at 10 U.S.C. §409); Safe Drinking Water Act, 42

U.S.C. § 300j-9; Water Pollution Control Act, 33 U.S.C. §136;

Toxic Substances Control Act, 15 U.S.C. § 2622.

® Civil Service Reform Act, Pub. L. 95-454, 92 Stat.1111

(codified as amended in various sections of Title 5 of the

United States Code).

protection rather than bureaucratic harassment

and intimidation.’

Legislative attention to incorporate employee

protection provisions within statutes followed the 1969

Farmington mine disaster. Safety reforms were enacted

for the mining industry in the ensuing Coal Mine

Health and Safety Act, which established protections

for miners who report safety problems to the

government or their employer. See, Phillips v. Board of

Mine Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974),

cert. denied, 420 U.S. 938 (1975).

Provisions adopted later in other health and safety

law's were patterned after the mine safety legislation.

Consequently, the agency responsible for the

interpretation of many of these separate employee

protection provisions interprets them “in a parallel

manner." Willy v. Coastal Corp., 85-CAA-1 at 4,

Decision and Order of Remand of the Secretary of

Labor (June 4; 1987); see, also, 29 CFR § 24.2, which

interprets Section 210 in the same manner as the

provisions contained in several environmental statutes.

The reason Congress has protected whistleblower

employees through federal statutes is clearly “to

encourage reporting." Munsey v. Federal Mine Safety &

Health Review Comm., 595 F.2d 735, 743 (D.C. Cir.

1978). This legislative goal is essential to understanding

why maintaining state torts enhances federal regulatory

goals, and why the Fourth Circuit’s position frustrates

it. Encouraging employees to report problems is

? Senate Report No. 95-969 as reported in 1978 U.S. Code

Cong. and Ad. News, at 2730.

essential to enforcement of federal law.

In fact, in February 1990, the American Bar

Association House of Delegates voted to support

federal whistleblower legislation similar to Section 210

for all private sector workers reporting safety, health

and environmental problems, as well as any violation of

federal statute or regulation.?

* As the proponents of the ABA resolution successfully

argued:

It is in the interest of all employers as well as

employees to protect “whistleblowers.” It is often the

case that only “whistleblowers” have the courage to carry

bad news to executive suites, while middle-level

managers who may wish to protect their jobs will not

inform senior management of developing problems.

Since safety and health threats can also threaten

corporate futures and profits with civil liability and

unfavorable publicity, it is also in the interest of

stockholders and corporations to keep the lines of

communication open to information from employees

who are intimately familiar with company shortcomings.

The recent examples of corporations in Bankruptcy

Court as a result of tort liability for products that

threaten safety and health clearly make the need for

protecting corporate employees more urgent than ever.

}

See e.g., p. 2 of the Report and Recommendation to the ABA

House of Delegates accompanying Resolution 125 from the

Young Lawyers Division, National Conference of Administrative

Law Judges, and Section of Individual Rights and

Responsibilities, in Volume Il Reports with Recommendations

to the House of Delegates, 1990 Midyear Meeting (not

sequentially paginated).

10

According to the legislative history, Section 210 of

the Energy Reorganization Act was patter:ied after the

Clean Air Act, 42 U.S.C. $7622 (1988), the Federal

Water Pollution Control Act, 33 U.S.C. §1567 (1988)

and the Federal Mine Safety and Health Act, 30 U.S.C.

$815(c)(1988). See, 1978 U.S. Code Cong. & Ad. News

7303. The legislative history emphasizes the desire of

Congress to ensure employee input and protection:

The best source of information about what a

company is actually doing or not doing is often

its own employees and this amendment will

ensure that an employee could provide such

information without losing his job or otherwise

suffering economically from retribution from the

polluter.

Legislative history of the Federal Water Pollution

Control Act cited in Conference Report of Clean Air

Act, 1977 U.S. Code Cong. & Ad. News, 1077, 1404.

In an age where limited agency resources produce

desuetude by default -- government inability or refusal

to enforce many health and safety laws -- reliance on

employees for quick reliable information is an efficient

and effective means to ensure compliance and

enforcement.

B. Whistleblower Protection Legislation !s Remedial

and to be Libere!ty Construed

The Fourth Circuit clearly was wrong to hold that

Section 210’s federal scheme would be frustrated by

11

pursuing state law remedies. Section 210 of the Energy

Reorganization Act, 42 U.S.C. §5851, passed in 1978,

was Congress’ effort to provide a national standard of

minimum protection for nuclear workers in all states

who expose problems potentially affecting the public

health and safety. As demonstrated below, Congress

never inte:.ded to deny these courageous employees the

traditional state court remedies afforded all citizens.

Clearly, Congress meant to protect, and thus to

encourage, workers who report threats to public health

and safety.

The most effective way to prevent whistleblowing

disclosures would be to cancel existing remedies for

whistleblowers, who risk career martyrdom when they

report iilegalities. Employers too often retaliate against

whistleblowers by discharging, demoting, blacklisting,

transferring, or isolating them.’ Fear of reprisal is a

powerful reason why would-be whistleblowers remain

silent.

As a result, consistent with public policy objectives,

Section 210 and the whistleblower statutes generally are

remedial and to be liberally construed. See e.g., Brock

v. Roadway Express, 481 US. 252 (1987).

Representative William D. Ford (D.Mich), in offering

an amendment to the Federal Water Pollution Control

Act employee protection provision, reinforced this view:

Mr. Chairman, in offering this amendment we

are only seeking to protect workers and

% See, M. Glazer & P. Glazer, The Whistleblowers --

Exposing Corruption in Government and Industry (1989) at 3.

12

communities from those very few in industry who

refuse to face up to the fact that they are

polluting our waterways, and who hope that by

pressuring their employees and frightening

communities with economic threats, they will gain

relief from the requirement of any effluent

limitation or abatement order. [Emphasis

added].

118 Cong.Rec. 10,766-768 (1972) reprinted in Legislative

History of tiie Water Pollution Control Act Amendments

of 1972, at 655.

The remedial construction of Section 210 is evident

in its statutory language.’ Remedial statutes are

defined as those "which provide a remedy, or improve

or facilitate remedies already existing for the

enforcement of rights and the redress of injuries."

Sands, Sutherland Statutory Construction, Sec. 60.02, (4th

Ed. 1986). This definition is clearly in keeping with

this Court’s holding in California v. ARC America Corp.,

109 S.Ct. 1661 (1989). At issue was the state tort

remedy which provided for relief in addition to that of

the federal statute.’ Further Sutherland states that

10 Section 210 expressly authorizes the Secretary of Labor

to file in Federal District Court a civil action enforcing

reinstatement orders of whistleblowers. The district court in

such an action "shall have jurisdiction to grant all appropriate

relief. ..." 42 U.S.C. Sec. 5851(d) ,

1t The court held that a state tort remedy which provides

relief that is in addition to that provided by a federal statute

cannot be a basis for the conclusion that the state tort remedy

13

"[r]emedial statutes are liberally construed to suppress

the evil and advance the remedy." Sands, supra at Sec.

60.01. This Court additionally has held that the goal of

judicial construction is to effect the intent of the

legislature in promoting nondiscriminatory employment

practices. General Electric v. Gilbert, 429 U.S. 125

(1976).

Section 210 of the Energy Reorganization Act while

well-intentioned is, by itself, a woefully inadequate

remedy as a vehicle to encourage and protect

employees who make important disclosures. This line

of reasoning led to the rejection of the preemption

theory by at least one district court. Gaballah v.

PG&E, 711 F.Supp. 988, 990 (N.D. Cal 1989). The

federal government does not occupy the field of

whistleblower protection, as states also act to protect

whistleblowers. At least ten states have statutory

exceptions to the common law rule of employment at

will for private workers.’? Congress is aware of this

fact, and it is apparent from the limited remedy

afforded.

has been preempted. California v. ARC America Corp., 496

U.S. --- ; 104 L.F 1.2d 86 (1989). See also, Pacific Gas and

Electric, 461 U.S. 190, 212-13 (1983), and Silkwood v. Kerr-

McGee, 464 U.>. 238, 248 (1984).

12 See, Cai. Lab. Code Ann. §1102.5 (West Supp. 1989);

Cal. Gov't. Code $§10540-10551 (West 1980); Conn. Gen. Stat.

Ann. §31-51m (West Supp. 1988); La. Rev. Stat. Ann. §30:2027

(West 1987); Me. Rev. Stat. Ann. tit. 26 §§831-40 (1988);

Minn. Stat. Ann. §§ 181.931-.935 (West Supp. 1989); Mont.

Code Ann. §§39-2-901 to -914 (1987); NJ. Stat. Ann. $§34:19-1

to -8 (West 1988); N.Y. Lab. Law §740 (McKinney 1988); Pa.

Stat. Ann. tit. 43, §§1421-28 (Purdon Supp. 1988).

14

In particular, Section 210 has a Draconian 30-day

statute of limitations, which the Secretary of Labor

interprets harshly.’ Section 210 does not provide for

punitive or exemplary damages, does not involve a jury,

does not allow for full discovery rights, and is given

limited review by 2 Court of Appeals. The advantages

of the statute to whistleblowers is its purported speedy

and inexpensive remedy.’4

Furthermore, Congress did not create any new,

special administrative body that would support 1

inference that 42 U.S.C. §5851 was intended to be the

exclusive means of enforcing the ERA. Instead, the

ee am,

13 This is nowhere more true than in the present case,

where the Petitioner filed a complaint with the Department of

Labor, went through a hearing and received a favorable

judgment, only to have that result thrown out by the Secretary

of Labor on the basis of an untimely filed complaint. The

Petitioner had filed a complaint after her layoff, as opposed to

her transfer by the company which did not affect her salary or

benefits. In our view, the Petitioner relied, to her detriment,

upon the good faith representations of the company to find her

other work. By finding that such employees must file a

complaint within thirty days of any act that could possibly be

construed as discriminatory encourages, even necessitates, a

flood of premature complaints.

14 The alleged advantage of expedited judgments is

overstated. Most complaints that survive initial actions to

dismiss take far more than the statutorily mandated 90 days to

resolve. A study of timeliness for Labor Department litigation

in the 275 whistleblower cases between fiscal years 1982 and

1989 revealed that the agency failed to meet the statutory

ceadline for resolving such cases in a large percentage of cases,

sometimes by as much as 800 days and more. See, 134 Cong.

Rec. $1447 (daily ed. Feb. 25, 1988)(Testimony of the

Government Accountability Project at 103, 109).

.

15

agency designated to enforce Section 210, the

Department of Labor, also resolves a myriad of other

labor disputes and was in existence well before the

passage of Section 210.

Consequently, no interference with the nuclear

regulatory scheme is evident from permitting states to

exercise their traditional right to regulate the employer-

employee relationship. To rise to the level of

completely eliminating a state’s right to regulate the

employment relationship, the federal regulation would

have to be truly pervasive. Bush v. Lucas, 462 U.S. 367

(1983). Even where comprehensive legisiaiive schemes

have been put in place to regulate lebor and

management relations, state tort actions against the

employer for damages arising out of the employment

relationship have been permitted. Lingle v. Norge

Division of Magic Chef, 486 U.S. 399, 108 S.Ct. 1877

(1988).

C. Congress Did Not Intend to Shrink Whistleblower

Remedies

The central issue for whistleblowers is whether in

passing Section 210, Congress intended to encourage

disclosures by expanding protections, or discourage

dissent by shrinking employee rights. There is simply

not a scintilla of evidence -- only speculation -- that

Congress intended Section 210 to be substitutive, not

additive. By determining that a comprehensive federal

scheme existed in 42 U.S.C.§5851, thereby barring any

state claim lest frustraiion of the federal policy occur,

the court below failed to consider the fundamental

16

purpose of these sections -- further preiection of the

employee against retaliatory discrimination. The

legislative history of Section 210 demonstrates the clear

and manifest intent of Congress to increase employee

protection. Senate Report No. 95-848, 95th Cong., 2d

Sess.29, reprinted in 1978 U.S. Code Cong. & Ad. News

7303. Further, the Fourth Circuit conceded this fact.

English v. GE, 683 F. Supp. 1006, 1012-13

(E.D.N.C.1988) aff'd per curiam, 871 F.2d 22 (4th Cir.

1989).

It would inardly enhance employee protection for

Congress to eliminate state-based rights under tort law

providing for jury trials and punitive damages. As

Chief Justice Rehnquist has written, our Founding

Fathers considered the right to jury triai "an important

bulwark against tyranny and corruption." Parklane

Hosiery v. Shore, 439 U.S. 322, 343-44 (1979)(Rehnquist,

J., dissenting). Since the right to a jury trial is a

cornerstone of common law and state constitutions,

Congress would not have lightly abolished American

citizens’ rights to jury trials in fifty states without

debate, sub silentio./°

Neither would Congress have lightly abolished the

right to punitive damages in appropriate cases. In this

case, two different legislatures exercised their discretion

‘S The tort of intentional infliction of emotional distress

is a question of state and not federal law. Further, it is clear

that the tort of wrongful discharge is an area equally subject to

State regulation. Lingle v. Norge Division of Magic Chef, Inc.,

108 S.Ct. 1877, 100 L.Ed. 410 (1988)(wrongful discharge is a

State tort remedy, within the traditional police powers of the

States).

17

noi to foreclose plaintiffs’ rights to punitive damages

(as well as to jury trials): the U.S. Congress and the

North Carolina state legislature. The United States

Congress did not exercise its power of federal

preemption. The North Carolina legislature and its

State courts have likewise declined to adopt an

exclusive remedy rule in cases of federal administrative

remedies. Yet the courts below, acting as a "super-

legislature," abused their discretion to do what the two

legislatures declined to do.

The state of North Carolina had the chance to

abolish the application of its tort of intentional infliction

of emotional distress to whistleblowers protected by

Section 210 and other federal laws. North Carolina has

done nothing to diminish these rights to tort actions

and jury trials, although it was within its sover?ign

powers.’ North Carolina has a powerfully compelling

state interest in allowing for jury trials ard punitive

damages. As General Electric has demonstrated in its

‘6 Other states have exercised their discretion to adopt

exclusive remedy ruies; see e.g., Walsh v. Consolidated Freightways

278 Or. 347, 351-53, 563 P.2d 1205, 1208-09 (1977)(no tort

because OSHA remedies adequate to protect interests of

employee and society); Corbin v. Sinclair Mktg., 684 P.2d 265,

267 (Colo Ci. App. 1984)(Colorado public policy exception to

“employment at will” does not apply to employees with statutory

remedy); Gyzb v. Evans, 700 S.W.2d 399, 401 (Ky.

1985)(aggrieved party limited to statutory remedy); Salazar v.

Furr’s, Inc., 629 F. Supp. 1403, 1409 (D.N.M. 1986)(no claim for

relief for wrongful discharge where another remedy provided by

Statute); Allen v. Safeway Stores, 699 P.2d 277, 284 (Wyo.

1985)(no need for court-imposed tort action if another remedy

exists).

18

brief, the availability of punitive damages can be a

powerful incentive to comply with the law, and a useful

tool for courts to accomplish the same goal. The

principle was first recognized in the time of George ITI,

when punitive damages were allowed to punish abuse

of authority. Huckle v Money, 95 Eng.Rep. (K.B.1782).

Juries are permitted to award punitive damages

based on the defendant’s culpable state of mind or

abuse of power. Dobbs, Remedies (1973) at 204-6. In

North Carolina, punitive damages are allowed in cases

of “malicious, wanton and reckless" actions and

"reckless and criminal indifference to [plaintiff'sj rights."

Cotton v. Fisheries Products Co., 181 N.C. 151, 106 S.E.

487 (1921).

The district court reasoned that since two other

whistleblower protection laws (15 U.S.C. §2622(b)(2)(B)

and 42 U.S.C. §300j-3(i)(2)(B)(ii)) contained punitive

damage award provisions, and therefore Congress

"reached an informed judgment" that in no

circumstances should a nuclear whistleblower receive

punitive damages." English v. GE, 683 F.Supp. 1006

(E.D.N.C. 1988). This ignores the reality that

development of whistleblower legislation by Congress

has been a piecemeal project, with particular industries

or substantive areas of concern addressed ad hoc, one

at a time. Congress has been inconsistent in adopting

whistleblower legislation. The consultant to the

Administrative Conference of the United States wrote:

Over a dozen federal laws attempt to

protect whistleblowers from retaliation

in wide areas cf private sector activity

19

where health and safety are at stake.

These laws, which protect both public

and workplace health and safety

interests . . . have created a crazy quilt

of investigative, adjudicatory and review

responsibilities . ... These discrepancies

reflect vagaries of the legislative process

-- legislation has addressed various

industries on an _ incremental or

piecemeal basis over time ...

Eugene R. Fidell, "Federal Protection of Private Sector

Health and Safety Whistleblowers,” 2 Administrative

Law Journal 1, 2,4 (1988).

The Administrative Conference of the United States

in reviewing federal whistleblower protection concluded

that "this lack of uniformity does not appear to be

reasoned, but most likely reflects the incrementa.

enactment of the various statutes over a period of

years." 1 C.F.R. § 305.87-2./7

»

'7 As the advocates of the ABA resolution on

whistleblower protection argued to the ABA House of

Delegates:

Current federal law, a series of scattered provisions, is

confused and inconsistent; this happened largely because

Congress adopted the emplovee protection statutes one

at a time. These procedural complexities would be

climinated with passage of tt omnibus bills now

proposed, which follow recommendations made by the

Adminisirative Conference of the United States

(ACLS).

(continued...)

20

Congress’ omission of punitive damage awards in

Section 210 does not indicate any intent to preempt

punitive damages under state law, only an inconsistency

among whistleblower _ statutes fraught with

inconsistencies, universally criticized by commentators

and the focus of current legislative initiative. A minor

inconsistency is hardly the stuff of which federal

preemption is hewn, particularly when preemption

would adversely affect rights ot citizens who happen to

be nuclear workers in fifty states.

Several pieces of legislation have been introduced

in recent years marking a concerted effort by Congress

to enhance the protections affcrded to employees in

the private sector when they report on matters within

their employment that may affect public health and

safety. These initiatives are in large part the result of

recommendations of the Administrative Conference of

the United States (ACUS) and the recognition that

employees in important industries such as aviation, food

processing, nuclear weapons, health care, and others

have no minimum federal protection in place to protect

them when they seek to report problems within those

industries.

One of the first bills designed to address the issue

of across the board minimum federal protection for all

private sector employees was the Uniform Health and

Safety Whistleblowers Protection Act. Introduced as

17(__. continued)

Report and Recommendation to the ABA House of Delegates

accompanying Resolution 125, supra, footnote 8 at 3.

ie an. _

21

S.2095, the overall purpose of the bill was descrived

by Senator Howard Metzenbaum, (D.Ohio):

Private sector employees shouid feel free to

report illegal or improper activities that endanger

the public health or safety without fear of

personal reprisal. It is a fundamental principle of

good Government to encourage citizens to report

illegal activities to the proper authorities.

Especially when public health and safety is at

stake, individuals who are willing to report

unlawful, hazardous practices to avert a disaster

should be honored as heroes. Instead, in too

many cases, their reward is to be fired, harassed,

demoted, or blacklisted by their employers.

134. Cong. Rec. S1447 (daily ed. Feb. 25,

1988)(statement of Sen. Metzenbaum). Notably, S.2095

sought also to clairfy the very issue being addressed by

this Court today. In Section 8(a) drafters of the bill

emphasized that the remedies provided would not

preempt state law remedies. Instead, the remedies

provided would seek to supplement state-based rights

and remedies.

Mos. recently, bitis have been introduced in both

Houses of Congress again designed to provide wide

spread minimum protections for private sector

employees. This proposed legislation (S.436 introduced

in the Senate and H.R. 3368 introduced in the House)

is entitled the Employee Health and Safety

Whistleblower Protection Act. In his statement defore

the Senate Subcommittee on Labor, Senator Charles

Grassley, (R.lowa) a co-sponser of S.436 stated:

22

Mr. Chairman, as you know....during my service

in the Senate I have championed the rights of

Whistleblowers who disclose waste and fraud in

the Federal Government. My work has led me to

conclude that whistleblowers perform a valuable

public service. Without their disclosures, we

would not begin to know where to find waste

and inefficiency.

W'iistleblowers face enormous obstacles in their

efforts to expose waste and correct that

wrongdoing. Our system rewards these employees

with the most unfair prizes- like discharge,

demotion, and unwanted transfers. They risk

their careers as well as reputations in the interest

of honest Government, and they do so

reluctantly.

*_*s ee *&£ *& &

So, Mr. Chairman, in summary, the employees

who bring health and safety violations to public

light deserve our thanks. At a minimum we need

to ensure their careers are secure. This bill sends

an important message to employers, employees,

and the American public at large: Violations of

health and safety standards, like Federal waste

and fraud, will not and cannot be tolerated. And

we need to rely on courageous employees to

help us make sure that Federal standards are

met.

Testimony of Senator Charles Grassley before the

ORO

23

Subcommittee on Labor of the Senate Committee on

Labor and Human Resources, 101st Congress, March

7, 1989, pp. 37-39.

Again, S.436 and S.2095 attempt to rectify the

unwarranted confusion in the courts on the issue of

federal preempticn by specifically indicating that the

bills will supplement not supplant state based rights and

remedies. See, Section 8(b) of S.436 and H.R. 3368.

"All laws should receive a sensible construction,"

avoiding "injustice, oppression, or an absurd

consequence." United States v. Kirby, 74 U.S. (7 Wall.)

482, 486-87 (1869). With neither legislative history nor

statutory language hinting at any intent to abolish either

the process of jury trials, or any state law remedies, it

would be "absurd" to assume that Congress would have

intended such "injustice {jaud] oppression." Jd. Jury

trials and punitive damages vindicate individua! rights

and are important safeguards of the liberty of the

individual. "The liberty of the individual must be

scrupulously protected ... no rule of construction

necessitates our acceptance of an_ interpretation

resulting in patently absurd consequences." United States

v. Brown, 333 U.S. 18, 27 (1947). Denying employees

their right to jury trials in state court actions is "not

within [the law’s] spirit, nor within the intention of its

makers." Holy Trinity Church v. United States, 143 U.S.

457, 459 (1892).

In sum, the groundswell for whistleblower protection

gained momentum once Congress took affirmative steps

to shield employees in the mine industry in 1968. See,

M. P. Glazer & P. M. Glazer, The Whistleblowers --

24

Exposing Corruption in Government and Industry (1989)

at 65-66. In its infancy, federal whistlebiower protection

naturally developed slowly and cautiously. It has

developed to the point where generic legislation to

protect all private sector safety, health and

environmental whistleblowers is pending in Congress.

S. 436; H.R. 3368 (101st Cong., 1st Sess.). Those bills

explicitly provide that there is no federal preemption of

State remedies, making clear Congress did not intend to

wipe out state law liability.

D. Case Law Supports a Finding of No Preemption

This analysis is consistent with the prevailing trend

of case law deciding whether federai whistleblower

Statutes preempt state remedies. State and federal

remedies are complementary, not conflicting. For

instance, in the FMSHA, 30 U.S.C. §815(c)(1988), two

courts have addressed the issue. In Wiggins v. Eastern

Associr ed Coul Co., 357 §.E.2d 745 (W.Va.1987) the

West Virginia Supreme Court found that the

whistleblower protection codified in the statute was

inadequate .is a matter of law, and therefore did not

preempt state remedies. But see, Olguin v. Inspiration

Consolidated Copper Co., 740 F.2d 1468 (9th Cir.

1984)(FMSHA was adequate, so preemption found).

One court has held the Clean Air Act (CAA)

whistleblower provision, 42 U.S.C. §7622 (1988) does

not preempt state tort suits. Phipps v. Clark Oil and

Refinery C..., 396 N.W.2d 588 (Minn.Ct.App. 1986) aff'd

408 N.W.2d 569 (Minn. 1987). In Phipps, the CAA

whistleblower protection provision was found not to

sn sens te

25

preempt state law claims in that state law simply

advanced the declared Congressional purpose of

protecting employees from retaliatory discharges.

Section 210 cases reach similar holdings. In

Wheeler v. Caterpillar Tractor Co., 108 Ill. 2nd 502, 485

N.E.2d 372, 376 (Ill. 1985) cert. denied, 475 U.S. 1122

(1986), the court held that there was no preemption

because Congress. in enacting Section 210, did not

intend such a result. Also see, Gaballah v. PG&E, 711

F.Supp. 988 (N.D. Cal 1989), finding Section 210 does

not bar a state court action based on state law, as

"[t]here is no apparent reason why Congress should

have wanted to bar persons who complained about

safety violations from a jury trial and the recovery of

punitive damages but not to bar persons who suffered

injuries from those violations." 711 F. Supp. at 990.

Accord, Norris v. Lurnbermen’s Mut. Casualty Co., 881

F.2d 1144, 1151 (1st Cir. 1989)("no good reason for

barring state remedies to whistleblowers" but "allowing

punitive damages under state law" to those injured in

nuclear accidents that might not have occurred if

whistleblower’s complaints had been investigated"). But

see, Chrisman v. Phillips Industries, Inc., 242 Kan. 772,

751 P.2d 140 (1988).

Clearly Section 210 is an elective remedy afforded

by Congress and not meant to be all-encompassing.

Siokes v. Bechtel N. Am. Power Corp., 614 F. Supp.

732,744 (N.D. Cal. 1985)(Section 210 supplements state

protection for nuclear whistleblowers).

The Department of Labor is the agency with

26

expertise in Section 210 complaints; the Department of

Labor has also held that the Section 210 remedy is not

an exclusive remedy, and that there is no federal

preemption of state law tort suits. This is evidenced by

the Secretary of Labor’s ruling that dismissal of a

Section 210 complaint should be without prejudice, so

that such a dismissal will not preclude a state court

action. See, e.g., Nolder v. Ramond Kaiser Engineers,

Inc., No. 84-ERA-5 (D.O.L., June 28, 1985).

This Court defers to the reasonable interpretation of

the agency to which Congress has delegated authority.

Chevron, U.S.A. v. NRDC, 467 US. 837, 844

(1984)(considerable weight should be accorded to an

executive department’s construction of a statute it is

entrusted to administer.) See also, United States v.

Turkette, 452 U.S. 576, 580 (1980); Udall v. Tallman,

380 U.S. 1, 16 (1965); McLaren v. Fleischer, 256 U.S.

477, 480 (1921). As this Court held in Udall v.

Talmann:

When faced with a problem of statutory

construction, this Court shows great deference to

the interpretation given the statute by the

officers or agency charged with its administration.

380 U.S. at 16 (1965). Amicus respectfully asks this

Court to give such deference to the view of the

Solicitor of the Department of Labor, who has filed a

brief in support of the Petitioner, Vera English.

ee ee ee ee

4 aes tn

27

CONCLUSION

If Vera English had been subjected to the type of

outrageous behavior alleged in her complaint in a non-

nuclear portion of GE’s Wilmington, North Carolina

plant, there would be no question but that she could

proceed in state court to vindicate her rights. As

Petitioner aptly states in her brief, intentional infliction

of emotional distress is a matter properly regulated by

the state in order to preserve civilized relations among

its citizens, and to punish wrongdoers. It would indeed

be ironic if, simply by virtue of an employee performing

the public service of reporting unsafe nuclear

conditions, that employee were deprived of her rights.

It would not take long for that type of interpretation to

defeat Congress’ intent of encouraging disclosures.

Moreover, the rights and interests of a state in

protecting the economic interests of its citizens will be

better served by allowing it to encourage reporting of

safety problems through maintaining remedial

protections. It is up to the Congress, not the courts, to

“rethink the division of regulatory authority" and to

28

decide whether state remedies provided for employees

covered by the ERA "undercut[s] a federal objective."

Pacific Gas & Electric Co. v. State Energy Resources

Conservation & Development Comm., 461 U.S. 190, 223

(1983).

Respectfully submitted,

Louis A. Clark

Counsel of Record

Of Counsel:

Thomas E. Carpenter

Edward A. Slavin, Jr.

Richard Condit

SarJra Peaches