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

IN THE

LERM

JOSEPH F. SPANIOL, JR

Supreme Court of the United States

OCTOBER TERM, 1989

VERA M. ENGLISH,

a: Petitioner,

GENERAL ELECTRIC COMPANY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE NUCLEAR MANAGEMENT

AND RESOURCES COUNCIL, INC.

AS AMICUS CURIAE SUPPORTING RESPONDENT

WILSON - Epes PrintinGc Co., Inc.

NICHOLAS S. REYNOLDs *

RICHARD K. WALKER

DONN C. MEINDERTSMA

BISHOP, CooK, PURCELL

& REYNOLDS

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5700

Counsel for Amicus Curiae

Nuclear Management and

Resources Council, Inc.

* Counsel of Record

- 789-0096 - WASHINGTON, 0.C. 20001

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether Section 210 of the Energy Reorganization

Act, which provides a comprehensive federal administra-

tive remedy for employees at nuclear facilities as an in-

tegral part of the federal government’s program to en-

sure safety in the opera‘ions of those facilities, preempts

state law claims for intentional infliction of emotional

distress arising out of alleged discrii.ination in the

terms and conditions of employment in retaliation for

reporting a safety violation at a nuclear facility that is

fully compensable under Section 210.

(i)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................0..000.000000000.0.2.....

INTEREST OF THE AMICUS CURIAE ......00000000......

STATEMENT OF THE CASE ...WW000220.20...eeee eee

SUMMARY OF ARGUMENT ......W0

a ilticcennasecsencetnscsnneseecsssesencersessscences

I. CONGRESS INTENDED SECTION 210 OF

Il.

THE ENERGY REORGANIZATION ACT TO

BE THE EXC! USIVE REMEDY FOR EM-

PLOYEES IN THE NUCLEAR INDUSTRY

WHO CLAIM THAT THEY HAVE BEEN DIS-

CRIMINATED AGAINST FOR RAISING NU-

CLEAR SAFETY CONCERNS

A. Section 210 Must Be Read In Pari Materia

With Other Provisions Of The Comprehen-

sive Federal Regulatory Regime Governing

The Nuclear Industry, And When So Read

It Provides An Exclusive Federal Remedy

For Allegedly Retaliatory Acts Motivated

By An Employee’s Raising Nuclear Safety

Neen ccncnenemnnenonse

B. This Court’s Decisions In Pacific Gas & Elec-

tric Co. And Silkwood v. Kerr-McGee Corp.

Compel The Conclusion That The States

Have No Authority To Regulate Conduct

Such As That Alleged In Petitioner’s

EES

PETITIONER’S CLAIMS ARE PREEMPTED

FOR THE FURTHER REASON THAT THE

APPLICATION OF STATE LAW TO HER

ALLEGATIONS OF RETALIATION WOULD

STAND AS AN OBSTACLE TO, AND FRUS-

TRATE, FULL REALIZATION OF THE

OBJECTIVES OF FEDERAL LAW GOVERN-

ING THE REGULATION OF NUCLEAR

cs diiaiacesertesnnseenccecenessensetecesene

12

iv

TABLE OF CONTENTS—Continued

Page

III. THE DECISIONS OF THE COURTS BELOW

ARE CONSISTENT WITH THE PREEMP-

TION PRINCIPLES ARTICULATED BY

THIS COURT IN CASES ARISING UNDER

THE LABOR MANAGEMENT RELATIONS

Vv

TABLE OF AUTHORITIES

Cases:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985) Sa Rime: Eon eer ae

Amalgamated Ass’n of Motor Coach Emp’ yees v.

Lockridge, 408 U.S. 274 (1971) ..............0.00000.....

Atkinson v. Gates, McDonald & Co., 838 F.2d 808

I UN, tears

Belknap v. Hale, 463 U.S. 491 (1983) ........ ae tee

Binkley v. Loughran, 714 F. Supp. 768 (M.D.N.C.

1988) ......... 5a cable beh tntaeeglalaiemedagiisdiciiien

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

I SS Daa ae

Brown v. General Servs. Admin., 425 U.S. 820

I accs ris. soninctice staan cdeasiniacanedaaihaiiad a aa iadaaeadiidien

Commonwealth Edison Co. v. Pollution Control

Bd., 5 Ill. App. 3d 800, 284 N.E.2d 342 (1972)...

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

NES INEESSTENTDURERON VERON > RE RO NOCR WS

DeFord v. Secretary of Labor, 700 F.2d 281 (6th

ERECT RRne useage we cere ners my ceo Ae Aro eS Oe

Edgar v. MITE Corp., 457 U.S. 624 (1982) aes

Erlenbaugh v. United States, 409 U.S. 239 (1972)...

Farmer v. United Bhd. of Carpenters, 480 U.S.

Be IE sieretiecresiceintes sncetaicennntomianneone 25, 26, 27,

Great American Fed. Sav. & Loan Ass’n v.

Novotny, 442 U.S. 366 (1979) ...................000000.2..

Haig v. Agee, 453 U.S. 280 (1981) -.........--00202...

Hines v. Davidowitz, 312 U.S. 52 (1941)...

International Ass’n of Machinists v. Gonzales, 356

Se a isieeelotceaeae

International Paper Co. v. Oulette, 479 U.S. 481

BRE REESE earn one nceenmanrer nee Eee

Inter: *tional Union, United Auto. Workers v.

Russell, 356 U.S. 634 (1958) _................0-.22-22-2..-

Jackson v. Southern Cal. Gas Co., 881 F.2d 638

RIPE oe arses «Cae See

Kansas Gus & Elec. Co. v. Brock, 780 F.2d 1505

(10th Cir. 1985), cert. denied, 478 U.S. 1011

(1986) ........... ccinidanahseiiijusneaacetinalandicinesdiaiiameidiaidmmeld

Page

20

10

28, 29

vi

TABLE OF AUTHORITIES—Continued

Page

Lehman v. Morrissey, 779 F.2d 526 (9th Cir.

IPE IR ae te oe Or 29

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

i i ita ileal 27, 28

Linn v. United Plant Guard Workers of America,

Local 114, 388 U.S. 58 (1966) .............................. 26, 27

Masters v. Daniel Int’l Corp., 895 F.2d 1295 (10th

LIRR SR RR Rts Pe on Te PR 19

Mayon v. Southern Pac. Transp. Co., 805 F.2d

ee ee ee 29

Norman v. Niagara Mohawk Power Corp., 873

i ft | 5 Eee eceemnne nanan 25, 29

Northern Natural Gas Co. v. State Corp. Comm’n,

I I aie 17

Northern States Power Co. v. Minnesota, 447 F.2d

1143 (8th Cir. 1971), aff'd mem., 405 U.S. 10%5

ERECT SRE eC eT Tie, ane aE 10

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

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

(1968) .......... siecle int sii ta eal tall 4, 7, 8, 12, 13, 16, 17

Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989) .... 29

Perez v. Campbell, 402 U.S. 687 (1971) -....0........... 17

Puerto Rico Dep’t of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 495 (1988) ................ 22

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

San Diego Bldg. Trades Council v. Garmon, 359

US. 336 (1008) ...................... 23, 24, 25, 27, 28, 29, 30

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

REE ena ne oN Be A Ute siaiieiaes 17, 22

Sears, Roebuck & Co. v. San Diego County Dist.

Council of Carpentcrs, 436 U.S. 180 (1978) _....... 23

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

aa acieaall 4, 13, 14, 15, 16

Smith v. Wade, 461 U.S. 30 (1983) —.......000000-...... 21

State of N.J., Department of Envtl. Protection v.

Jersey Cent. Power & Light Co., 60 N.J. 102, 351

Sa ts dcitdaieiatetnpdbnlinions 10

United Constr. Workers v. Laburnum Constr. Co.,

347 U.S. 656 (1954) -............00....... pone a 26, 27

vii

TABLE OF AUTHORITIES—Continued

Page

Vaca v. Sipes, 386 U.S. 171 (1967) .......0..0.. 26

Wisconsin Dep’t of Indus. v. Gould, Inc., 475 US.

ERTL a AN Se Ue ANNE RES SO OO IO CR 21

Administrative Decisions:

DeFord v. Tennessee Valley Auth., Case No. 81-

ERA-1 (Secretary’s Order on Remand) (Apr.

aE eee eet vee Ors ee a ND 27

In re General Elec. Co. (Wilmington, NC Facil-

ity), DD-89-1, 29 N.R.C. 325 (1989) —......000000..... 21

In re Tennessee Valley Auth., EA 86-093 (July 10,

a a a ie aed Be ia oa 21

In re Toledo Edison Co., EA 88-234 (Nov. 21,

te ASE aS Ire Ne RT rE 21

Statutes and Reguiations:

Atomic Energy Act of 1946, ch. 724, 60 Stat. 755

a eee nce n een ne Ie ONDE 7 eS 7

Atomic Energy Act of 1954, 42 U.S.C. §§ 2011

RR e seticlaeeciieris iaribhatiiasincesatsinctniiciensadstiencenitdeninmneinmnegn 6

ON I OF i oencceniecesoeccessseceensiemmen eels 8

..cssnmmenemuuennbinens 19

§ 234, 42 U.S.C. § 2282 ..... a 21

pe eee 7,16

fk Ee een 7,8,11

§ 274(b) (4), 42 U.S.C. § 2021 (b) (4) 0. 8

§ 274(c), 42 U.S.C. § 2021 (c) -.000-o oe. 8

§ 274(c) (1), 42 U.S.C. § 2021 (c) (1) 0... 9

§ 274(k), 42 U.S.C. § 2021(k) ................ alee 8

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

I saneaniiciasaaanne 6,9

Rs Oe TI ccc ec erececeacecsceesrnvesed passim

§ 210(b) (1), 42 U.S.C. § 5851 (b) (1) 18

§ 210(b) (2), 42 U.S.C. § 5851 (b) (2) 0... 18

§ 210(b) (2) (B), 42 U.S.C. § 5851 (b) (2) (B).. 27

§ 210(g), 42 U.S.C. § 5851 (g) . Pa Opens 5, 21, 22, 23

Labor Management Relations Act of 1947, 29 |

EE:

8 ee 27, 28

viii

TABLE OF AUTHORITIES—Continued

Page

National Labor Relations Act of 1935 —................. 23

§§ 7, 8, 29 U.S.C. §§ 157, 158 ........... ee. 24

10 C.F.R. Part 2, App. C (1989) -............222-..-.-ee 21

pk 8 EF eee 3

10 C.F.R. § 19.16(c) (superseded) ...........--...-------... 24

te I i cccccnctsnsincnmssecnnsstensnnbacnceis 19

Re ee I onc ccctcccccnccecncencensretesinenesnssancncecs 19

i catieenitneeemanannnonneise 19

a icc ccsccseicccancccscocccccsnccsowccsansnsonse 19

Se . saceteisedeneiedsinmnsionenienis 19

a te I Oe ID cc snccinccccccacccccnstcnccccssecenasoos 8

Te IE CI ciiciccccncitcccvninciesinncnconnccsncconsscss 19, 21, 24

Fr Ts cecesecndmnnnensebianionnaintn 19

Miscellaneous:

te me RS ES een eE 9, 25

124 Cong. Rec. 29785-87 (1978) -..... po SDR NCS ADEE on ONE 11

124 Cong. Rec. 37545, 38230 (1978) .. 2... 11

124 Cong. Rec. 38239, 37526 (1978) ............--.. 11

38 Fed. Reg. 22217 (1973) ....................... wt inet 24

47 Fed. Reg. 30452 (1982) ..............2---ceeeceeeeeeeeeeeeeee eee 24

Easterbrook, Statutes’ Domain, 39 U. Chi. L. Rev.

SET SS Oe EE ee 20

H.R. 13650, 95th Cong., 2d Sess. (1978) —.............. 11

H.R. Rep. No. 1796, 95th Cong., 2d Sess. (1978),

reprinted in 1978 U.S. Code Cong. & Admin.

AE ACR Mi se EE UL con OE eR 11

Memorandum of Understanding Between NRC and

Department of Labor; Employee Protection, 47

Fed. Reg. 54585 (1982) .........0.00.02..20222- ee. 18, 19

S. 2584, 95th Cong., 2d Sess. (1978) —................... 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-152

VERA M. ENGLISH,

Petitioner,

V.

GENERAL ELECTRIC COMPANY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE NUCLEAR MANAGEMENT

AND RESOURCES COUNCIL, INC.

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE AMICUS CURIAE

The Nuclear Management and Resources Council, Ince.

(“NUMARC”), is the organization of the nuclear power

industry that is responsible for coordinating the com-

bined efforts of all utilities licensed by the United States

Nuclear Regulatory Commission (“NRC” or “Commis-

sion’) to construct or operate nuclear power plants, and

of other nuclear industry organizations, in all matters

involving generic operational and technical issues affect-

ing the industry. Every electric utility responsible for

constructing or operating a commercial nuclear power

plant in the United States is a member of NUMARC.

In addition, NUMARC’s members include major

architect-engineering firms and all of the major nuclear

2

steam supply system vendors, including respondent Uen-

erai Electric Company.

Every member represented by NUMARC that is en-

gaged in NRC-licensed activities is subject to the stric-

tures o1 the nuclear regulatory scheme created by the

Atomic Energy Act of 1954, as amended, including Sec-

tion 210 of the Energy Reorganization Act, 42 U.S.C.

§ 5851 (“Section 210’), and to the regulatory oversight

f the NRC (formerly the Atomic Energy Commission).

NUMARC has an abiding interest in ensuring that the

congressionally crafted regulatory scheme governing its

members’ operations is construed and applied in a man-

ner consistent with the congressional goal of ensuring

that nuclear facilities are constructed and operated in

such a manner as to protect the health and safety of the

public.

NUMARC believes that petitioner’s claims are pre-

empted by federal law and were thus correctly dismissed

by the courts below. Further, it is NUMARC’s view that

the national objectives established by Congress in the

Atomic Energy Act and administered by the NRC, in-

cluding emphasis on early identification and remediation

of potential nuclear safety problems at nuclear facilities,

would be substantially impeded if employers in the in-

dustry were also subject to the vicissitudes of varying

state law conceptions of what does, and does not, advance

those policies.’

STATEMENT OF T.iE CASE

NUMARC adopts the Statement of the Case set forth

in respondent General Electric Co.’s (“GE”) brief.

Nevertheless, we respectfully invite the Court’s attention

to the following re:ord facts.

1 Pursuant to Rule 37 of the Rules of this Court, NUMARC has

filed with the Clerk the parties’ written consent to the submission

of this Brief

3

Having first sought remedies for alleged maltreatment

at .he hands of her employer before the Department of

Labor under Section 210 of the Energy Reorganization

Act, 42 U.S.C. § 5851 (Pet. App. 30a-56a), and before

the NRC under 10 C.F.R. § 2.206 (Pet. App. 57a-58a),

petitioner Vera M. English brought this diversity action

in district court in 1987. Claiming that she had been

wrongfuily terminated and that respondent had inten-

tionaliy caused her emotional distress, petitioner sought

compensatory damages of “at least’? some $1.3 million

(J.A. 21) and punitive damages of approximately $2.3

billion (Pet. App. 6a). Specifically with regard to her

emoticnal distress claim, petitioner allege’ that “GE in-

tentionally inflicted emotional distress on |her] as ‘pun-

ishment’ for her reporting violations to the NRC and to

make an example of her.” J.A. 20. She also alleged that

her employer’s actions constituted “extreme and outrage-

ous conduct.” Jd. The district court summarized the

particular conduct on which petitioner’s claims nad been

based as follows:

With respect to “extreme and outrageous” conduct

plaintiff alleges that GE’s management (1) re

moved her from her job in the Chemet Lab under

guard as if she were a criminal, exposing her to

contempt and ridicule; (2) assigned her to a de-

grading “make work” job; (3) derided her as para-

noid; (4) barred her from employment in controlled

areas; (5) subjected her to constant surveillance

in the workplace; (6) isolated her from fellow

workers and did not even permit her to eat in the

company lunchroom with her fellow workers; and

(7) conspired +o fraudulently charge her with vicla-

tions of safety and criminal statutes.

Pet. App. 27a.

The district court held that petitioner’s claims fell

squarely within the scope of Section 210, which consti-

tuted her exclusive remedy. Petitioner appealed the rul-

ing on her emotional distress claim, and the Fourth Cir-

4

cuit agreed with the lower court that Section 210 pre-

empted that claim. Petitioner obtained a writ of cer-

tiorari from this Court.

SUMMARY OF ARGUMENT

I.

In the federal legislation governing the nuclear indus-

try enacted over the past four decades, Congress has

completely occupied the field of nuclear safety regulation.

Only rarely has it provided for a role hy the states, and

then only in narre-vly limited circumstances. Section

210 was enacted as a part of the intricate and compre-

hensive federal scheme for ensuring the safe construction

and operation of nuclear facilities. Its employee protec-

tion features are a means to that end, not an end in

themselves. Section 210 therefore must be read in pari

materia with the statutory scheme already in place

when it was enacted. Such a reading compels the con-

clusion that, if Congress had intended to permit the

states to provide an alternative and duplicative system

of remedies for retaliation claims that fall within the

ambit of Section 210, it surely would have said so.

This Court’s decisions in Pacific Gas & Electric Co. v.

State Energy Resources Conservation & Developmert

Comm’n, 461 U.S. 190 (1983), and Silkwood v. Ker: -

McGee Corp., 464 U.f. 238 (1984), recognize the com-

plete occupation of this field by Congress. Those deci-

sions also affirm that, absent an express provision au-

thorizing the states to act in this area or clear and abun-

dant evidence of a congressional intent to permit them

to do so, state law is precluded from any role. Neither

of these factors exists with respect to claims, such as

petitioner’s, that are cognizable under Section 210.

There thus is no basis for finding that petitioner’s claims

are within any of the limited exceptions to the broad

preemptive sweep of federal nuclear energy law.

5

II.

Even had Congress not occupied the field of nuclear

safety regulation, petitioner’s claims would be preempted

for a further reason: application of state law to facts

such as those alleged in her complaint would interfere

with full realization of the purposes embodied in the

federal regulatory scheme. The much longer statute of

limitations applicable to petitioner’s state law claim sub-

verts the provisions in federal law calculated to ensure

that information about potential nuclear safety issues

comes to the attention of federal authorities in timely

fashion. Further, state law apparently would permit

awards of punitive damages irrespective of an NRC

decision to impose, or not to impose, civil penalties pro-

vided for in the federal regulatory scheme. aAnd state

law contains no provision comparable to Section 210(g),

which would preclude those who violate federal nuclear

safety requirements from obtaining a remedy. These

differences inevitably give rise to the potential for state

law interference with the fulfillment of federal objectives.

III.

The decisions below are also entirely consistent with

this Court’s preemption decisions under the Labor Man-

agement Relations Act, 29 U.S.C. §§ 141-187 (“LMRA”).

The Court has held that state laws regulating conduct

arguably prohibited by the LMRA are preempted because

Congress has committec the resolution of such matters to

the National Labor Re:ations Board (“NLRB”), just as

Congress has designated the Secretary of Labor and the

NRC as the federal agencies with authority to address

retaliation claims brought by nuclear industry employees.

Cases cited by petitioner in which the LMRA has been

held not to preempt state claims have been grounded in

the fact that the NLRB is generally powerless to provide

any remedy for personal injuries of the sort ‘hat state

law may address. Section 210, on the other hand, sun-

plies a remedy for retaliation claims such as petitioner’s.

6

Because petitioner’s claim here is essentially the same

claim that she litigated before the Secretary of Labor

under Section 210, it clearly does not involve a collateral

matter only peripherally related to the subjects of inter-

est in Section 210 proceedings. Furthermore, federal oc-

cupation of the field of nuclear safety regulation leaves

no room for a balancing of competing state and federal

interests in the issues raised in the petitioner’s complaint.

ARGUMENT

I. CONGRESS INTENDED SECTION 210 JF THE

ENERGY REORGANIZATION ACT TO BE THE

EXCLUSIVE REMEDY FOR EMPLOYEES IN THE

NUCLEAR INDUSTRY WHO CLAIM THAT THEY

HAVE BEEN DISCRIMINATED AGAINST FOR

RAISING NUCLEAR SAFETY CONCERNS.

A. Section 210 Must Be Read In Pari Materia With

Other Provisions Of The Comprehensive Fedcral

Regulatory Regime Governing The Nuclear Indus-

try, And When So Read It Provides An Exclusive

Federal Remedy For Allegedly Retaliatory Acts

Motivated By An Employee’s Raising Nuclear

Safety Concerns.

In 1978, Congress amended the Energy Reorganization

Act cf 1974 by adding a new Section 210, Pub. L. No.

95-601, 92 Stat. 2951 (1978), 42 U.S.C. § 5851. This

provision, applicable only to the nuclear industry, pro-

vides specific administrative procedures and full com-

pensatory remedies to employees of NRC licensees and

their contractors who allege that they have been dis-

criminated against for engeging in any “action to carry

out the purposes” of the Energy Reorganization Act or

the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seg.

Far from legislating in a regulatory vacuum, as peti-

tioner implies was the case, Congress added this new

safety provision—Section 210—to what is likely the most

comprehensive federal regulatory scheme ever enacted.

From the beginning, that scheme completely excluded

state regulation and subsequently has permitted limited

7

regulation by the states only by express decree. When

placed in its proper context, there is ample evidence that

Congress intended Section 210 to be the exclusive remedy

for employees in the nuclear industry who allege that

they have been retaliated against for raising radiological

safety concerns.

This Court has recounted the history of the regulation

of the nuclear industry before. Pacific Gas & Electric

Co. v. State Energy Resources Conservation & Dev.

Comm'n, 461 U.S. 190, 206-12 (1983). In brief, Con-

gress’ first legislation in this area created a federal gov-

ernment monopoly over the production and use of fission-

able material. Atomic Energy Act of 1946, ch. 724, 60

Stat. 755 (1946). In the Atomic Energy Act of 1954,

Congress implemented its determination that the private

sector should participat2 in the development of atomic

energy for power production purposes, but only under the

exclusive regulatory oversight of a federal agency. The

1954 Act thus created the Atomic Energy Commission

(“AEC”), which was charged with the licensing of pri-

vate construction, ownership, and operation of commercial

power reactors and which retained exclusive jurisdiction

to license the acquisition, transfer, possession, and use of

nuclear materials. ‘Upon these subjec-s, no role was left

for the States.” Pacific Gas & Electric Co., 461 U.S. at

207.

When Congress permitted states to regulate at all in

this area, it did sb expressly. Congress even found it

necessary to provide expressly that the 1954 Act reserved

to the states their traditional power to regulate the “gen-

eration, sale, or transmission of electric power produced

through the use of nuclear facilities ....” Section 271,

42 U.S.C. $2018. As the Court indicated in Pacific Gas

& Electric Co., there are very few instances in the stat-

utes governing the nuclear industry in which Congress

has relinquished power to the states.

In 1959, Congress added another such provision, Sec-

tion 274, 42 U.S.C. § 2021. The 1959 amendment granted

8

the AEC the authority “by agreements with state gover-

nors to discontinue [the Commission’s] regulatory author-

ity over certain nuclear materials under limited condi-

tions.” Pacific Gas & Electric Co., 461 US. at 209.

Under such agreements, the NRC cedes its authority to

“Agreement States,” and consequently there is no “dual

regulation” in such states. Thus, the 1959 amendment

permitted state regulation of nuclear materials to a very

limited extent and only where the state has entered into

an explicit agreement with the federal government and

restricted amounts of nuclear materials are involved. In

the 1959 amendment Congress again included an express

provision to make clear its intent with respect to the effect

of Section 274 on pre-existing AEC and state regulatory

authority.” Section 274(b) (4) and (c) make clear that

the AEC retained its authority over large quantities of

special nuclear material and with respect to the construc-

tion and operation of any production or utilization facil-

ity. 42 U.S.C. § 2021(b) (4), (e).®

2In Section 274(k), 42 U.S.C. § 2021(k), Congress declared that

Section 274’s narrowly circumscribed provisions for the exercise of

state authority should not be construed as implying any further

restrictions on the states. Petitioner suggests that Section 274(k)

creates an exemption from the generally preemptive effect of the

Atomic Energy Act for all forms of state regulation of nuclear

facilities for economic and other nonsafety purposes. Pet. Br. at

21-22. But this contention ignores this Court’s pronouncement in

Pacific Gas & Electric Co. that “Seciion 274(k), by itself, limits

only the pre-emptive effect of ‘this section,’ that is, § 274, and does

not represent an affirmative grant ef power to the States.’ 461 U.S.

at 210 (emphasis added).

3 Petitioner was employed at a GE fuel fabrication plant licensed

by the NRC to possess and use special nuclear material pursuant to

Section 53 of the Act (42 U.S.C. § 2073) and 10 C.F.R. Part 70

of NRC regulations. Because GE is authorized to possess large

quantities of special nuclear material at the plant, much more than

that contemplated in Section 274(b)(4) of the Act (42 U.S.C.

§ 2021(b)(4)), such a plant is subject only to NRC regulation, not

“Agreement State” regulation. Thus, for purposes of preemption

analysis, the GE plant is akin to the utilization facilities (i.e.,

nuclear reactors) that are similarly subject only to NRC regulation

9

In the Energy Reorganization Act of 1974, Congress

restructured fedural control over the nuclear industry.

The Act abolished the AEC and assigned its licensing

and regulatory functions to the NRC. The 1974 Act did

not alter in any way the role the states were to play in

the regulation of nuclear power. Finally, in 1978, Con-

gress amended the Energy Reorganization Act by adding

Section 210. Again, the new legislation provided no new

authority to the states. On the contrary, the legislative

aistory of Section 210 establishes that Congress intended

the provision as an addition to legislation governing

nuclear safety, and one that was to be meshed with the

existing body of law.

Finally, while new section 210 of the Energy

Reorganization Act of 1978 provides the Department

of Labor with new authority to investigate an al-

leged act of discrimination in this context and to

afford a remedy should the allegation prove true, it

is not intended to in any way abridge the |Nu-

clear Regulatory] Commission’s current authority

to investigate an alleged discrimination and take ap-

propriate action against a licensee-employer, such as

a civil penalty, license suspensiv:: or license revoca-

tion. Further, the pendency of a proceeding before

the Department of Labor pursuant to new section

210 need not delay any action by the Commission to

carry out the purposes of the Atomic Energy Act

of 1954.

124 Cong. Rec. 29771 (1978) (statement of Sen. Hart).

In similar circumstances, this Court has ccnsistently

held that amending legislation such as Section 210 must

be read in pari materia with the previously enacted tegis-

lative scheme of which it is made a part.‘ This rule, the

(Section 274(c)(1) of the Act, 42 U.S.C. § 2021(c)(1)) and that

are referred to in such cases as Pacific Gas and Electric Co.

4 See Naig v. Agee, 453 U.S. 280, 300-01 (1981) (statute enacted

52 years after passage of the Passport Act and making it unlawful

to travel abroad without a passport even in peacetime must be read

in pari materia with the Passport Act): Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (Fed. R. Civ, P. 54(d)

10

Court has explained, “is but a logical extension of the

principle that individual sections of a single statute

should be construed together, for it necessarily assumes

that whenever Congress passes ¢. new statute, it acts

aware of all previous statutes on the same subject.”

Erlenbaugh v. United States, 409 U.S. 239, 244 (1972)

(citation and footnote omitted).

Prior to the passage of Section 210 in 1978, it was

generally recognized that Congress had preempted state

regulation of matters subject to the federal regulatory

scheme. In the leading preemption case of that time,

Northern States Power Co. v. Minnesota, 447 F.2d 1143

(8th Cir. 1971), aff'd mem., 405 U.S. 1035 (1972), the

Eighth Circuit had held that Congress had preempted the

state’s attempt to regulate radioactive waste releases

from nuclear power plants, even though Congress had

said nothing about the states’ role in this area and even

though compliance with both the federal and state stand-

ards was possible. The circuit court found that the 1959

amendment to the Atomic Energy Act itself evidenced

a congressional intent to exclude state regulation of the

operation of nuclear power facilities, except to the extent

that a state had entered into a cooperative agreement

with the federal government to regulate certain nuclear

materials.

(T|he federal government has exclusive authority

under the doctrine of pre-emption to regulate the

construction and operation of nuclear power plants,

which necessarily includes regulation of the levels

of radioactive effluents discharged from the plant.

/d. at 1154.°

must be read in pari materia with previously enacted limitations on

the power of courts to tax litigants with the costs of litigation in

28 U.S.C. §§ 1821, 1920).

5 See also State of N.J., Department of Envtl. Protection v.

Jersey Cent. Power & Light Co. 60 NJ. 102, 351 A.2d 337

(1976) (state regulation of cessation of nuclear power plant’s func-

1)

Because Congress must necessarily have been aware

of the body of nuclear energy law already in existence

at the time of Section 210’s enactment in 1978, it was

surely cognizant of the structure and underlying policies

of the Atomic Energy Act onto which Section 210 was

engrafted, of the fact that only very narrowly circum-

scribed powers had been left to the states, and of the

necessity for express provision for state authority in any

area in which it was intended that the states be left

free to act. When Section 210 is considered in its

proper context, there can be no doubt as to its pre-

emptive effect over claims such as petitioner’s here.

Moreover, in the case of Section 210, it is not neces-

sary to rely only upon the usual presumption that Con-

gress was aware of the historical practice of making

specific provision for any exceptions in the preemptive

sweep of federal law governing the nuclear industry.

At the very same time that Congress was considering

Section 210, it also had before it proposals to amend

Section 274.° Thus, the Congress that enacted Section

210 was itself directly involved at the same time with

amending one of the few provisions of the Atomic En-

uioning, emission of radioactive waste and dilution of that waste is

impermissible because regulation of those matters has been vested

in the AEC); Commonwealth Edison Co. v. Pollution Control Bd.,

5 Ill. App. 3d 800, 284 N.E.2d 342 (1972) (federal law preempts

state environmental control statute to the extent it authorized state

regulation of radiation from nuclear power plants).

® Indeed, when it passed the Senate, S. 2584, the bill that con-

tained what was to become Section 210, also contained provisions

(Sections 16-18 of the bill) to amend certain portions of Section

274 having to do with the exercise of state authority with regard to

radiological by-product materials (uranium mill tailings). 124 Cong.

Rec. 29785-87 (1978). These provisions were dropped from the con-

ference bill, however, “in light of other legislation before the

Congress to regulate mili tailings.” H.R. Rep. No. 1796, 95th Cong.

2d Sess. 18, reprinted in 1978 U.S. Code Cong. & Admin. News 7304,

7311 (1978) (Conference Report). That other legislation was H.R.

13650, which passed the House and Senate on October 14, 1978.

124 Cong. Rec. 37545, 38230 (1978). Senate Bill 2584 also passed

both houses on October 14, 1978. Jd. at 38239, 37526 (1978).

12

ergy Act or the Energy Reorganization Act that ex-

pressly cedes limited authority to the states. Under

these circumstances, it strains credulity to suggest that

at the time of Section 210’s passage there was an un-

stated congressional intention to cede authority to the

states to provide alternative and duplicative remedies for

conduct directly addressed by Section 210.

B. This Court’s Decisions In Pacific Gas & Electric Co.

And Silkwood v. Kerr-McGee Corp. Compel The

Conclusion That The States Have No Authority To

Regulate Conduct Such As That Alleged In Peti-

tioner’s Complaint.

This Court affirmed in Pacific Gas & Electric Co.

that “the Federal Government has occupied the entire

field of nuclear safety concerns, except the limited powers

expressly ceded to the states.” Jd. at 212 (footnote

omitted). In addition, the Court made it clear that any

attempt by a state to regulate “the construction or

operation of a nuclear powerplant,” even if motivated

solely by “nonsafety concerns,” would be plainly im-

permissible because the exercise of such regulatory au-

thority would “directly conflict with the [NRC’s] ex-

clusive authority” over such matters. /d. Moreover, in

language iat is particularly pertinent to resolving the

issue in the present case, the Pacific Gas & Electric Co.

decision emphasized the profoundly preemptive effect

of federal occupation of this field.

When the Federal Government completely occupies

a given field or an identifiable portion of it, as it

has done here, the test of pre-emption is whether

“the matter on which the State asserts the right to

act is in any way regulated by the Federal Act.”

Id. at 212-13 (quoting Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 236 (1947) (emphasis added) ).

The language of petitioner’s complaint in this case

reveals .1at she has sought to bring a claim under state

law that embraces matters squarely addressed by Sec-

tion 210. The complaint’s description of the “extreme

and outrageous conduct” alleged asserts that such

13

conduct was “motivated by GE’s desire to punish her

for raising safety concerns” (J.A. 16, 20), that her

employer was motivated by a desire to demonstrate that

it would “severely punish employees who insisted on

compiiance with safety regulations and reported GE

violations to the NRC as required by law” (J.A. 16),

and that the treatment to which she allegedly had been

subjected had all occurred “because she had exposed and

threatened to continue to expose as sham, management’s

pretended concern with employee and public health and

safety” at the facility where she had been employed

(J.A. 16-17).

At bottom, then, her cause of action for intentional

infliction of emotionai distress consists of nothing more

or less than claims that her employer retaliated against

her because of her involvement in raising nuclear safety

concerns, precisely the sort of conduct that Section 210

was intended to regulate. Thus, “ ‘the matter on which

the State asserts the right to act,’” Pacific Gas & Elec-

tric Co., 461 U.S. at 213—here the actic’ « a nuclear

industry employer in allegedly retaliating against one

of its employees for raising concerns about nuclear safety

—is directly the subject of federal regulation. Inasmuch

as this is not one of the strictly circumscribed areas in

which Congress has expressly preserved the traditional

regulatory authority of the states, the application of

North Carolina law to the facts alleged by petitioner

is perforce preempted.

The Court’s decision in Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984), rejnforces the conclusion that peti-

tioner’s claim is preempted because it intrudes upon a

field fully occupied by the federal government. The ma-

jority in that case held that state tort law remedies for

personal injuries resulting from physical exposure to

radiation are not preempted by federal law. In so

holding, the Court also made clear that it was recog-

nizing only a limited exception to the general rule enun-

ciated in Pacific Gas & Electric Co. that all matters

14

concerning nuclear safety and the operation of nuclear

facilities are the exclusive province of the federal regu-

latory regime.

The majority in Silkwood first noted that the decision

of Congress to prohibit the states from intruding on the

safety aspects of nuclear development had derived from

a belief that the NRC was more qualified than the states

to determine the appropriate safety standards to be em-

ployed at nuclear facilities. 464 U.S. at 250.

If there were nothing more, this concern over the

States’ inability to formulate effective standards

and the foreclosure of the States from conditioning

the operation of nuclear plants on compliance with

state-imposed safety standards arguably would dis-

allow resort to state-law remedies by those suffering

injuries . .m radiation in a nuclear plant. There

is, howeve: ample evidence that Congress had no

intention of © »bidding the States to provide such

remedies.

Id. at 250-51.

The evidence to which the majority opinion referred

consisted of two critical facts. First, Congress had pro-

vided no federal remedy for the victims of svch in-

juries. Jd. Second, and “|m|ore importantly, the only

congressional discussion concerning the relationship be-

tween the Atomic Energy Act and state tort remedies

indicates that Congress assumed that such remedies

would be available.” Jd.’

But neither of these factors is present in cases involv-

ing the application of state law to alleged acts of retalia-

tion for raising nuclear safety concerns. In Section 210,

Congress has provided an explicit and detailed federal

administrative remedy for those who suffer retaliation

under circumstances such as those alleged by petitioner

here.

7 The Court also noted that in congressional deliberations on the

1966 amendments to the Price-Anderson Act, a provision that would

have created a federal tort to replace existing state remedies had

been expressly considered and rejected. Id. at 254-55.

15

Moreover, neither petitioner nor her supportin ict

have pointed the Court to any evidence ‘that Aca

has at any time assumed that state tort remedies would

be available in cases in which retaliation for raising

nuclear safety concerns is alleged. Quite simply, there

is no indication whatsoever in the legislative history of

Section 210 or any of the other provisions of the Atomic

Energy Act or the Energy Reorganization Act suggest-

ing that Congress even considered, let alone chose to

tolerate, the availability of state remedies in such cases.

The majority opinion in Silkwood frankly acknowl-

edged 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 damages based on its own law of liability.” Jd

at 256. The Court also made clear that tolerance of that

tension was possible only because the evidence of a con-

gressional intent to allow it to exist was abundant. but

then emphasized that applicability of its ruling to claims

in other areas was not to be presumed:

We do not suggest that there could never be an

instance in which the federai law would pre-empt

the recovery of damages based on state law. But

insofar as damages for radiation injuries are con-

cerned, pre-emption should not be judged on the

basis that the Federal Government has so completely

occupied the field of safety that state remedies are

foreclosed but on whether there is an irreconcilable

conflict between the federal and state standards or

whether the imposition of a state standard in a

damages action would frustrate the objectives of

the federal law.

Id. (emphasis added). Absent the compelling evidence of

congressional intent that supplied the foundation for the

narrow exception. recognized by the majority in Silkwood

for radiation injury claims, the fact that Congress has

completely oceupied the field of nuclear safety compels

the conclusion that state law remedies are preempted.

16

Petitioner seeks to avoid this straightforward applica-

tion of the Pacific Gas & Electric Co. and Silkwood deci-

sions by asserting that the interests of the states in

granting their citizens the right to litigate intentional

infliction of emotional distress claims have “nothing

whatsoever to do with nuclear energy or nuclear power.”

Pet. Br. at 14. But if that were the test, the entirety

of the Court’s discussion of congressional intent in Si/k-

wood would have been nothing more than surplusage,

for it can just as wel! he sa‘d that the personal injury

law of the states was also not conceived with nuclear

energy in mind.

Moreover, petitioner’s argument misses one of the cen-

tral points o’ the Court’s decision in Pacific Gas &

Electric Co., which is that the purpose underlying state

laws affecting nuclear facilities only becomes relevant if

the state is acting pursuant to authority expressly re-

served to it by federal law.‘ Before even reaching its

analysis of the purpose of the state law at issue in that

case, the Court was careful first to emphasize that any

state regulation of the construction or operation of a

nuclear power plant “even if enacted out of nonsafety

concerns, would nevertheless directly conflict with the

NRC’s exclusive authority over plant construction and

operation.” 461 U.S. at 212 (emphasis added).

Management of the workforce at a nuclear facility,

including the exercise of the prerogatives to discipline

and discharge employees, is indisputably a vital part of

the operation of that facility. Especially where, as here,

state law is sought to be applied to the exercise of man-

agement prerogatives in the context of a workplace dis-

pute that is alleged to have at its core an issue of radio-

logical safety, the suggestion that this would not con-

stitute state regulation of the operation of a nuclear

8 As is discussed supra, Pacific Gas & Electrie Co. involved an

extension of the traditional economic regulation of electric utilities,

a sphere of state regulatory activity explicitly preserved by Section

271 of the Atomic Fnergy Act, 42 U.S.C. § 2018.

17

facility is simply untenable. Thus, whether thought was

given in the conception of North Carolina emotional

distress law to its effects on the operation of nuclear

facilities has utterly no bearing on the fact that federal

law preempts state intrusions in such matters, regard'ess

of whether such conflicts with exclusive federal authority

were intended by the authors of state law.

II. PETITIONER’S CLAIMS ARE PREEMPTED FOR

THE FURTHER REASON THAT THE APPLICA-

TION OF STATE LAW TO HER ALLEGATIONS OF

RETALIATION WOULD STAND AS AN OBSTACLE

TO, AND FRUSTRATE, FULL REALIZATION OF

THE OBJECTIVES OF FEDERAL LAW GOV-

ERNING THE REGULATION OF NUCLEAR

FACILITIES.

Even if Congress had no. completely occupied the field

of nuclear safety, petitioner’s action here must be held

to be preempted because the application of state law in

the circumstances of her case would “‘stand[{] as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.’” Pacific Gas &

Electric Co., 461 U.S. at 204 (quoting Hines v. Davido-

witz, 312 U.S. 52, 67 (1941)). Indeed, when state law

“presents the ‘prospect of interference with the federal

regulatory power,’ then the state law may be pre-empted

even though ‘collision between the state and federal regu-

lation may not be an inevitable consequence.’ ” Schneide-

wind v. ANR Pipeline Co., 485 U.S. 293, 310 (1988)

(quoting Northern Natural Gas Co. v. State Corp.

Comm’n, 372 U.S. 84, 91-92 (1963)). And where an

application of state law may frustrate the objectives of

federal law, it is the effect rather than the purpose of

the state law that controls the preemption analysis. Jn-

ternational Paper Co. v. Oulette, 479 U.S. 481, 498-99

‘aa Perez v. Campbell, 402 U.S. 637, 651-52

Permitting state court actions such as petitioner’s

would frustrate the intent of Congress to ensure expe-

18

ditious processing of Section 210 claims. While the stat-

ute of limitations in Section 210 is 30 days, 42 U.S.C.

§ 5851(b) (1), the limitations period applicable to peti-

tioner’s infliction of emotional distress claim under

North Carolina law is apparently three years. Pet. App.

22a. Where Section 210 mandates that the Secretary of

Labor issue her decision within 90 days in the adminis-

trative process embraced by Congress, 42 U.S.C. § 5851

(b) (2), it is common knowledge tnat litigation in the

courts can take many years to concede. The significance

of these provisions calling for exp: <itious resolution of

Section 210 claims is made more apparent when con-

sidered in conjunction with (a) the further requirement

of Section 210(b} (1) that the Secretary of Labor notify

the NRC upon receipt of a Section 210 complaint, and

(b) the Memorandum of Undersianding between the De-

partment of Labor and the NRC in which they agree

“to cooperate with each other to the fullest extent pos-

sible” in the investigation of Section 210 matters. 47

Fed. Reg. 54585 (1982).

Because radiological safety may be implicated in any

Section 210 complaint, it is vital and in the public in-

terest that the NRC be apprised at the earliest possible

time of the allegations of an employee who claims to be

the victim of retaliatiun for raising nuclear safety con-

cerns. Such allegations of wrong(oing are important to

the NRC for two reasons. First, they may involve is-

sues of nuclear hardware or procedures that bear di-

rectly and immediately on safe operations. Second, they

may alse involve the qualifications (in terms of manage-

ment ability and attitudes) of licensees to p ssess and

use nuclear materials. This information must be timely

received by the NRC to permit it to respond rapidly to

such issues and to any “chilling effects’ on the identi-

fication of safety concerns that cases of retaliation may

cause among the workforce in general. See Kansas

Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1509 (15th

Cir. 1985), cert. denied, 478 U.S. 1011 (1986) (*“{I]|n-

tertwined with an employment discrimination ccmplaint

19

could be matters specifically concerning substantive ques-

tions of nuclear safety which are better determined by

the NRC, a body with competence on nuclear issues.’’).”

The NRC, acting pursuant to its authority under Sec-

tion 161 of the Atomie Energy Act, 42 1.S.C. § 2201,

see 47 Fed. Reg. 30452 (1982), has promulgated regu-

lations that are the correlative of Section 210. E.g., 10

C.F.R. § 70.7 (1989)."° Where the NRC determines that

this regulatory provision has been violated, it may take

action to (a) suspend, modify or terminate the licensee’s

license; (b) impose a civil penalty; or (c) initiate

“lo]|ther enforcement action.” 7d.

This fundamental scheme for protecting public health

and safety will be undermined if the decision of when

ar in what forum an action by an aggrieved party

should be brought is left to the choice of that party. And

this would be doubly true if plaintiffs could simply re-

name their retaliation claims, calling them infliction of

emotional distress ciaims as petitioner has done here,

and thereby avail themselves of the opportunity to ob-

® Indeed, the Tenth Circuit in Brock initially noted, in its review

of an Order of the Secretary in a Section 210 proceeding, that it

was “troubled by a jurisdictional question. ... [T]he Secretary of

Labor should not be involved with matters pertaining to nuclear

safety, such matiers more appropriately coming withi. the ex-

pertise of the NRC.” Jd. at 1508. The court concluded, however,

that t!.e Memorandum of Understanding entered into between the

two agencies acted to “safeguard the rights of all parties involved

in such an employment proceeding.” Jd. at 1509. The Tenth Circuit

has subsequently ruled that states have no role to play in this

context. Masters v. Daniel Int'l Corp., 895 F.2d 1295 (10th Cir.

1990) (Section 210 preempts state law claim for retaliatory dis-

charge).

’ The proscriptive language of 10 C.F.R. § 70.7, and parallel pro-

visions in §§ 30.7, 40.7, 50.7, 60.9, and 72.10, is essentially the same

as that ut Section 210. See also 10 ©.F.R. § 19.20 (“Employment

discrimination by a licensee or a contractor or subcontractor of a

licensee against an employee for engaging in protected activities . .

is prohibited.” ).

20

tain millions of dollars (or $2.3 billion, as petitioner has

sought here) in punitive damages. In such circum-

stances there would be few who would retain any in-

terest in having their disputes resolved through the ad-

ministrative process that Congress went to the trouble to

create.

This Court’s vpinions have consistently indicated that

the creation of a detailed and comprehensive scheme of

administrative remedies by Congress gives rise to a pre-

sumption that resort to alternative fora, which may offer

procedural advantages and the possibility of more et-

tractive remedies to those seeking relief, was not con-

templated. See, eg., Great American Fed. Sav. & Loan

Ass’n v. Novotny, 442 U.S. 366, 375-76 (1979) (plain-

tiffs whose rights under Title VII of the Civil Rights

Act of 1964 had been violated not allowed to seek rem-

edies under 42 U.S.C. § 1985(3) because of factors such

as the availability of longer statute of limitations, puni-

tive damages and jury trial under the latter statute, and

“(plerhaps most importantly, the complaint could com-

pletely bypass the administrative process, which plays

such a crucial role in the scheme established by Congress

... 2): Brown v. General Servs. Admin., 425 U.S. 820,

832 (1976) (balance, completeness and structural in-

tegrity of administrative procedure established in Title

VII of Civil Rights Act of 1964 for processing claims of

government employees held inconsistent with assertions

that such remedies were designed only to supplement

other juicial remedies) ."’

11 See also Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1035

(5th Cir. 1984):

The fact that Congress has produced so many detailed provi-

sions governing the nuclear industry indicates the legislature

may well have attempted to approach the line where it believed

the added costs of regulation exceed benefits. Edgar v. MITE,

457 U.S. 624 (1982) (holding that additional protection af-

forded investors by state securities statutes would “overpro-

tect” investors to their detriment); see Easterbrook, Statutes’

Domain, 50 U.Chi.L. Rev. 533, 542 (1983). If this is so, for

a court to interpret the statute to authorize “more in the same

7

s

21

Moreover, it is especially doubtful that Congress in-

tended to permit those claiming that they have been re-

taliated against for raising nuclear safety concerns to

have access to punitive damages awards in state tort

actions where such awards would only replicate mecha-

nisms in the federal regulatory scheme designed to effect

the same objective. “[DJeterrence of future egregious

conduct is a primary purpose . . . of punitive damages.”

Smith v. Wade, 461 U.S. 30, 49 (1983). But in the case

of conduct that would violate Section 210 and 10 C.F.R.

$ 70.7, the NRC already has the authority to impose civil

penalties for deterrent purposes. Atomic Energy Act

§ 234, 42 U.S.C. § 2282." Indeed, the NRC has already

exercised that authority to impose a $20,000 civil penalty

against respondent for the very conduct at issue in the

present proceedings. In re General Electric Co., DD-

89-1, 29 N.R.C. 325, 334 (1989) (based on findings of

the Administrative Law Judge in petitioner’s Section 210

proceeding). See Pet. App. 57a-58a."* As this Court has

held, a conflict between federal and state law is immi-

nent whenever both federal and state remedies are

brought to bear on the same activity. Wisconsin Dep’t

of Indus. v. Gould, Inc., 475 U.S. 282, 286 (1986) ‘hold-

ing state law preempted that imposed sanctions on em-

ployers that repeatedly violated federal labor laws).

Finally, that Congress chose in Section 210(g) to deny

a remedy under federal law to employees who themselves

commit a violation of the Atomic Energy Act or the

vein” will result in regulation where costs exceed benefits, up-

setting the balance intended by Congress.

12 The regulatory provisions relating to NRC enforcement actions

and the imposition of civil penalties in appropriate cases are found

at 10 C.F.R. Part 2, App. C (1989).

13 See also In re Toledo Edison Co., EA 88-234 (Nov. 21, 1988)

(imposing $80,000 penalty for violation of 10 C.F.R. § 50.7, and

ordering that license be modified to require notification of employee

involvement in safety-related matters); In re Tennessee Valley

Auth., EA 86-093 (July 10, 1986) (imposing $150,000 penalty for

violations of § 50.7).

22

Energy Reorganization Act is likewise supportive of the

conclusion that petitioner’s claims in this case are pre-

empted.'* Whenever Congress erects a comprehensive fed-

eral scheme, combining action (such as providing a rem-

edy for most employees subjected to retaliation for rais-

ing nuclear safety concerns) with inaction (such as -

denying remedies otherwise available to those who them-

selves violate the law), a “pre-emptive inference” may be

drawn. Puerto Rico Dep’t of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 495, 503 (1988).

This inference cannot be dispelled by offering, as peti-

tioner does (Pet. Br. 40 n.18), the facile suggestion that

permitting employers to raise Section 210(g) as a de-

fense to state infliction of emotional distress claims

avoids any “actual conflict” between the two bodies of

law. The critical question, quite simply, is not whether

an “actual conflict” can be avoided, but whether the

application of state law “presents the ‘prospect of in-

terference with the federal regulatory power.”

Schneidewind, 485 U.S. at 310. The existence of a pos-

sibility that an individual whose own illegal acts have

eliminated her eligibility for a federal remedy might

nevertheless obtain a remedy, including punitive dam-

ages, in a state infliction of emotional distress action

would completely subvert the congressional judgment on

how the balance should be struck in such situations.

Moreover, even if employers would be in a position to

assert a defense to a state law claim based on Section

210(g) (a matter that may vell have to be determined

under the law of the state in which the claim is brought),

state courts and juries wou'd inevitably have to become

entangled in the administration of the Atomic Energy

Act. For a state court or jury to rule on a Section 210

14 Section 210(g), 42 U.S.C. § 5851(@), provides:

Subsection (a) of this section shall not apply with respect to

any employee who, acting without direction from his or her

employer (or the employer’s agent), deliberately causes a vicla-

tion of any requirement of this chapter or of the Atomic Energy

Act of 1954, as amended.

23

(g) defense, they would first have to determine whether

the employee in fact “cause[d] a violation of any re-

quirement of” the Energy Reorganization Act or the

Atomic Energy Act—-a question appropriately reso!ved

only with the assistance of considerable technological ex-

pertise, and a question to which Congress intended that

there be a uniform answer.

In sum, each of the three aspects of the federal statu-

tory scheme cited by the district court (Pet. App. 19a-

24a) in support of its conclusion that petitioner’s claims

were preempted demonstrates that the application cf

state 'aw to such claims would inevitably interfere with

the fulfillment of objectives embodied in federal law. In

the absence of clear evidence of a congvessional intent

to tolerate such interference, claims such as petitioner’s

are necessarily preempted.

lil. THE DECISIONS OF THE COURTS BELOW ARE

CONSISTENT WITH THE PREEMPTION PRINCI-

PLES ARTICULATED BY THIS COURT IN CASES

ARISING UNDER THE LABOR MANAGEMENT

RELATIONS ACT.

It is, of course, in the context of the history and com-

prehensive scope of federal nuclear safety regulation that

petitioner’s claim must be analyzed. Nonetheless, peti-

tioner and supporting amici contend that the decisions of

the courts below are not consonant with the principles

articulated dy this Court in federal labor law preemption

cases. But as demonstrated below, the lower courts’ rul-

ings that petitioner’s claim is preempted are in fact en-

tirely consistent with those principles. /

Shortly after Congress passed the National Labor Re-

lations Act (“NLRA”) in 1935, this Court ruled that the

Act, while silent on the role states were to play, pre-

empted state regulation of matters that Congress had

entrusted to the jurisdiction of the NLRB. See Sears,

Roebuck & Co. v. San Diego County Dist. Council of

Carpenters, 436 U.S. 180, 190-91 (1978); San Diego

,

24

Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).

In Garmon, the Court ruled that state laws regulating

conduct arguably governed by Sections 7 or 8 of the Act,

29 U.S.C. §§ 157, 158, cannot stand because “Congress

has entrusted administration of the labor policy for the

Nation to a centralized administrative agency, armed

with its own procedures, and equipped with its specialized

knowledge and cumulative experience.” Jd. at 242. This

strand of LMRA displacement of state law has been

styled as “Garmon preemption.”

The need to protect the “primary jurisdiction” of fed-

eral agencies charged by Congress to administer complex

and interrelated federal schemes—the underpinning of

Garmon—likewise dictates that petitioner’s claim in this

case has been preempted. Under the Atomic Energy Act

and the Energy Reorganization Act, Congress has vested

the NRC with the responsibility to regulate the conduct

of its licensees. The Commission in fact long ago as-

sumed the authority to investigate allegations of retalia-

tion against employees wno have attempted to pursue

the safety goals of nuclear regulation by voicing nuclear

safety concerns. E.g., 10 C.F.R. § 19.16(c) (“No licensee

shall discharge or in any manner discriminate against

any worker because such worker has” voiced nuclear

safety concerns.) (promulgated in 1973, 38 Fed. Reg.

22217, 22219 (1973), superseded in 1982 when 10 C.F.R.

£ 70.7 and its counterparts were first promulgated, 47

Fed. Reg. 30452 (1982)). And, as noted above, the

Commission has imposed penalties on its licensees when

allegations of discrimination have been substantiated,

either through the Commission’s own investigation or in

Department of Labor proceedings.

In 1978, Congress extended to the Secretary of Labor

he power to provide full compensatory remedies to ag-

15 Congress amended the Act in 1947, Labor Management Rela-

tions Act, ch. 120, 61 Stat. 136 (1947), 29 U.S.C. $8 141-187 (1988).

The Act will hereinafter be cited as the “LMRA.”

25

grieved employees who comply with the procedures set

forth in Section 210, but was careful not to curtail the

pre-existing authority of the Commission in this field.

124 Cong. Ree. 29771 (1978). The Commission and the

Secretary fulfill complementary and supportive roles in

this scheme. See Norman v. Niagara Mohawk Power

Corp., 873 F.2d 634, 637 (2d Cir. 1989) (“In a field as

specialized and technical as that of nuclear energy, the

importance of this interplay between the two agencies

cannot be overemphasized.”) (citing, inter alia, Garmon

in holding that Section 210 is an exclusive remedy).

Where, as in Garmon and this case, Congress has cre-

ated an intricate scheme that directs federal agencies

to address and remedy a discrete type of dispute, no

room remains for states to regulate in the same field.

Thus, what has been said of Garmon also holds true

here: “The technique of administration and the range

and nature of those remedies that are and are not avail-

able is a fundamental ~.:t and parcel of the operative

‘egal system established b: the” federal scheme, and even

“supplemental” state laws may not apply. Amalgamated

Ass’n of Motor Coach Employees v. Lockridge, 403 U.S.

274, 287 (1971).

Here, petitioner’s claim is in all material respects iden-

tical to that which she has already presented to the Sec-

retary of Labor: that the respondent engaged in acts

calculated to cause her emotional distress because she had

raised nuclear safety concerns. Pet. App. 32a-40a; J.A.

7-20. In light of this “identity of issues,” petitioner’s

reliance on Farmer v. United Brotherhood of Carpenters,

430 U.S. 290 (1977), is misplaced. In an unfair labor

practice proceeding, the NLRB would not be concerned

with the emotional harm visited upon a charging party

by conduct arguably subject to the LMRA. 7d. at 304

(“Whether the statements or conduct of the respondents

also caused Hill severe emotional distress and physical

injury would play no role in the Board’s disposition of

26

the case.”)."* In contrast, petitioner’s allegation that

respondent intentionally caused her mrtal distress be-

cause she had voiced safety concerns was «<n issue actu-

ally litigated in her claim for compensatory relief before

the Department of Labor. In sum, petitioner’s reliance

on Farmer ignores the fact that the Department of

Labor entertained a claim for redress of the very injury

of which she complains, while the NLRB would not have

done so.

Moreover, in each of the cases relied on by petitioner

in which the Court has ruled that the LMRA does not

preempt a state claim, the Court emphasized that the

Board would have been powerless to provide a full rem-

edy because in enacting the LMRA “Congress did not

establish a general scheme authorizing the Board to

award full compensatory damages for injuries caused by

wrongful conduct.” International Union, United Auto.

Workers v. Russell, 356 U.S. 634, 642-43 (1958).'7 In

16 See also Linn v. United Plant Guard Workers of America,

Local 114, 383 U.S. 53, 63-64 (1966) (“The malicious publication of

libelous statements does not in itself constitute an unfair labor

practice. ... The injury that the statement might cause to an in-

dividual’s reputation—whether he be an employer or union official—

has no relevance to the Board’s function.”); Belknap v. Hale, 463

U.S. 491, 511 (1983) (“It is no less true here than it was in Linn

v. Plant Guard Workers ... that ‘[t]he injury’ remedied by the state

law ‘has no relevance to the Board’s function.’”’). Cf. Vaca v. Sipes,

386 U.S. 171, 182 n.8 (1967) (The “public interest in effectuating

the policies of the federal labor laws, not the wrong done the in-

dividual employee, is always the Board’s principal’ concern in fash-

ioning unfair labor practice remedies.’ ).

17 International Ass’n of Machinists v. Gonzales, 356 U.S. 617,

621 (1958) (“Although, if the unions’ conduct constituted an unfair

labor practice, the Board might possibly have been empowered to

award back pay, in no event could it mulct in damages for mental or

physical suffering.”) ; United Constr. Workers v. Laburnum Constr.

Co., 347 U.S. 656, 663-65 (1954) (“Here Congress has neither pro-

vided nor suggested any substitute for the traditional state court

procedure for collecting damages for injuries caused by tortious

conduct. . . . The Labor Management Relations Act sets up no

general compensatory procedure except in such minor supplementary

ways as the reinstatement of wrongfully discharged employees with

27

contrast, Congress devised Section 210 expressly to pro-

vide full compensatory remedies to employees who have

been discriminated against because they have engaged in

action to carry out the purposes of federal nuclear legisla-

tion. Section 210(b)(2)(B) provides that, in addition to

providing reinstatement and backpay, “the Secretary may

order [the respondent] to provide compensatory damages

to the complainant.” 42 U.S.C. § 5851(b)(2)(B). The

statute unambiguously permits the Secretary to compen-

sate the complainant for all losses sustained in connection

with the alleged discrimination.'’* Indeed, petitioner had

herself secured from the administrative law judge a judg-

ment under Section 210 awarding $70,000 as compensa-

tion for mental suffering and other damages before the

Secretary ruled that her claim had not been timely filed.

Pet. App. 55a."

back pay.”); Linn, 383 U.S. at 63-64 (“The Board can award no

damages, impose no penalty, or give any other relief to the defamed

individual.”); Farmer, 430 U.S. at 304 (“[T]he Board could not

award Hill damages for pain, suffering, or medical expenses.’’) ;

Belknap, 463 U.S. at 511 (“‘The Board can award no damages,

impose no penalty, or give any other relief’ to the plaintiffs in this

case.”) ; see also Lockridge, 403 U.S. at 318 (White, J., dissenting)

(noting that the Court’s decisions in Russell, Laburnum, and Linn

were all based on the “inadequacy of the existing Board rrocedure

to provide suitable remedies for those injured as a result of the

conduct”).

18 DeFord v. Secretary of Labor, 700 F.2d 281, 288 (6th Cir.

1983) (‘“Here, it is clear that Congress intended to allow ‘com-

pensatory damages,’ and nothing less. The statute is not ambiguous

on this point.”); DeFord v. Tennessee Valley Auth., Case No. 81-

ERA-1, slip op. at 4 (Secretary’s Order on Remand) (Apr. 30,

1984) (awarding $10,000 to -Section 210 complainant for “mental

pain and suffering and damage to reputation’).

19 Petitioner’s claim (Pet. Br. 31 n.12) that Lingle v. Norge

Division of Majic Chef, Inc., 486 U.S. 399 (1988), “lays to rest,”

fou. Garmon preemption purposes, the distinction this Court has

drawn for forty years regarding claims for which the NLRB could

provide a remedy and those for which it could not reveals a mis-

understanding of the different strands of labor preemption. Lingle,

a case addressing preemption by Section 301 of the LMRA, 29 U.S.C.

§ 185, expressly caucioned against such confusion, emphasizing that

28

Garmon notions of “primary jurisdiction” preemption,

then, fortify the conclusion that federal laws regulating

the nuclear industry preempt petitioner’s claim because

it seeks the application of state law to matters Con-

gress has entrusted to the regulatory authority of fed-

eral agencies. Nevertheless, it is incorrect to conclude

that the scope of Garmon preemption delimits the pre-

emptive scope of nuclear regulatory legislation. Section

210, unlike the “prohibited conduct” provisions of the

LMRA, was enacted in an area where Congress had

already legislated comprehensively and where a federal

agency already exercised dominion over the conduct for

which Section 210 provides a remedy. Indeed, Section

210 regulates an industry over which the federal gov-

ernment originally held a monopoly and state regula-

tion of which has always been narrowly circumscribed.

If anything, the preemptive inferences to be drawn from

the context of Section 210 are more compelling than

those attending the LMRA.

The distinctions between preemption in the nuclear

regulatory arena and under Garmon make petitioner’s

reliance on Farmer particularly inapt. By attempting to

fit her claim within the “Farmer exception,” petitioner

erroneously assumes that the balancing of state and

federal interests applicable in Garmon preemption can

also be properly applied to nuclear regulatory preemp-

tion. As demonstrated above, because Congress has com-

pletely occupied the entire field of nuclear safety, no

state law regulating in that field may apply. Simply

put, federal occupation of the field leaves no room for a

balancing of state and federal interests. See Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 214 n.9 (1985)

(“The present tort suit would allow the State to pro-

vide a rule of decision where Congress has mandated

that federal law should govern. In this situation the bal-

ancing of state and federal interests required by Gar-

Garmon preemption and § 301 preemption involve different inquiries.

486 U.S. at 409 n.8.

29

mon pre-emption is irrelevant, since Congress . . . has

provided that federal law must prevail.”).

For this reason, petitioner’s claim is preempted re-

gardless of whether it involves interests “deeply rooted

in local feeling and responsibility,” Gavmon, 359 U.S. at

244, or laws of only passing interest. Moreover, peti-

tioner cannot contend that her claim is of only “periph-

eral” concern to the federal scheme inasmuch as her

claim, as demonstrated above, is among those that

Congress has vested the Secretary with authority to ad-

dress. Norman, 873 F.2d at 637 (distinguishing Farmer

and holding that Section 210 is an ex:lusive remedy)

(“We are not dealing here with a collateral matter that

is only peripherally related to the safety concerns im-

plicit in section 210 .... [T]he gravamen of the com-

plaint herein is section 210 harassment.”’).*” Moreover,

because petitioner’s claim presents precisely the same

issue that the Secretary can address and remedy, and

alleges conduct for which the NRC can impose an appro-

2° Farmer, either as an “exception” to or defining the limits of

the principles set out in Garmon, is unique to that type of preemp-

tion and cannot simply be applied as petitioner attempts to do in

this case, to all other areas in which Congress has displaced state

regulation. Indeed, a host of other federal laws have been held to

preempt state law intentional infliction of emotional distress claims

arising in the employment setting. E.g., Jackson v. Southern Cali-

fornia Gas Co., 881 F.2d 638, 645-46 (9th Cir. 1989) (Farmer not

applicable to LMRA § 301 preemption; intentional infliction of emo-

tional distress claim preempted) ; Pane v. RCA Corp. 868 F.2d 631,

635 (3d Cir. 1989) (ERISA preempts intentional infliction of emo-

t‘onal distress claim); Atkinson v. Gates, McDonald & Co., 828

F.2d 808 (5th Cir. 1988) (comprehensive scheme embodied in Long-

shoremen and Harbor Workers’ Compensation Act preempts state

law claim for intentional infliction of emotional distress); Mayon

v. Southern Pac. Transp. Co., 805 F.2d 1250, 1252-52 (5th Cir.

1986) (Farmer not applicable to Railway Labor Act preemption) ;

Lehman v. Morrissey, T79 F.2d 526 (9th Cir. 1985) (per curiam)

(remedial procedures created by Civil Service Reform Act preempt

federal employee’s claim for intentional infliction of emotional di. -

tress); Binkley v. Loughran, 714 F. Supp. 768, 771 (M.D.N.C.

1988) (LMRA § 301 preempts intentional infliction of emotional dis-

tress claim under North Carolina law).

30

priate penalty, the state’s interest in compensating vic-

tims of socially intolerable conduct and society’s inter-

est in punishing a nuclear licensee for engaging in such

conduct, are fully accomplished by the provisions of Sec-

tion 210 and the Atomic Energy Act.

In sum, there is no merit to petitioner’s contention

that the Atomic Energy Act and the Energy Reorganiza-

t'on Act do not preemnt her claim because the LMRA

might not do so. In both the labor and nuclear arenas

Congress has provided interrelated schemes of law, ad-

ministrative procedures, and remedies; and state laws

governing the same conduct regulated by the federal

scheme are necessarily preempted. It does not follow,

however, that an intentional infliction of emotional dis-

tress claim that would escape Garmon preemption also

escapes Section 210 preemption, because the Secretary,

unlike the NLRB, has been assigned to address such

claims where, as here, they are premised upon retalia-

tion for raising nuclear safety concerns. For these rea-

sons, the decisions of the courts below are fully consist-

ent with the principles of federal labor law preemption.

CONCLUSION

For the foregoing reasons, the judgment of the United

States Court of Appeals for the Fourth Circuit should

be affirmed.

Respectfullv submitted,

NICHOLAS S. REYNOLDs *

RICHARD K. WALKER

DONN C. MEINDERTS!'A

BISHOP, COOK, PURCE.

& REYNOLDS

1400 L Street, N.W.

Washington, D.C. 20005-3502

(202) 371-5700

Counsel for Amicus Curiae

Nuclear Management and

Resources Council, Inc.

* Counsel of Record