English v. General Electric Company

PETITIONER:English
RESPONDENT:General Electric Company
LOCATION:Buie Residence

DOCKET NO.: 89-152
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 496 US 72 (1990)
ARGUED: Apr 25, 1990
DECIDED: Jun 04, 1990

ADVOCATES:
Carter G. Phillips – on behalf of the Respondent
Christopher J. Wright – as amicus curiae, supporting the Petitioner
M. Travis Payne – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – April 25, 1990 in English v. General Electric Company

William H. Rehnquist:

We’ll hear argument first this morning in No. 89-152, Vera English v. General Electric Corporation.

Mr. Payne.

M. Travis Payne:

Mr. Chief Justice, and may it please the Court:

I will be sharing argument this morning with someone from the Solicitor General’s Office.

I will summarize the facts and address the nature of the claim before you.

He will then address the case law involved.

My intention is to reserve five minutes of our allotted time for rebuttal.

Vera English worked for nearly 12 years in a laboratory at General Electric’s nuclear fuel processing plant.

She did analysis to assure the quality of material placed in nuclear fuel rods.

Over the years she made a number of complaints concerning safety and quality, both to General Electric’s management and to the NRC.

As a result of those complaints, on March 15, 1984, she was removed from her job in the analytical lab; and on July 30th of that same year, she was discharged from her employment with General Electric.

We have alleged, and for purposes of this appeal it must be accepted as true, that the actions taken against Mrs. English were indeed taken in retaliation for her reports.

In fact, the Department of Labor Administrative Law Judge found that she was the victim of retaliation.

He also found that GE’s witnesses were just not believable in attributing the actions against to concerns that she might endanger other employees.

But I want to make it clear that we are not here relitigating the Section 210 action under a state law theory.

This is an intentional infliction of emotional distress case, and the issues that will be before a jury at a trial of this matter are significantly different from those considered under a Section 210 action.

Under North Carolina law, we must first establish that the conduct directed towards Mrs. English was extreme and outrageous.

As set forth quite thoroughly in the National Conference of State Legislators’ brief, that is a very, very high standard, and only the most egregious situations will meet it.

It requires considerably more than merely a retaliatory discharge.

William H. Rehnquist:

Mr. Payne, what… what was the finding of the district court and of the court of appeals as to whether you had stated a claim under North Carolina law?

M. Travis Payne:

Both of those courts found in response to the 12(b)(6) motion that we had in fact asserted all of the elements of such a claim.

William H. Rehnquist:

And that that did… your… your pleadings, therefore, did state a claim under North Carolina law?

M. Travis Payne:

Yes.

There’s no question about that.

That’s a… a specific finding in Judge Dupree’s ruling in the district court and clearly affirmed at the court of appeal.

Anthony M. Kennedy:

Was the retaliatory discharge one of the elements that you included in alleging intentional infliction of emotional distress?

M. Travis Payne:

No, Your Honor.

What we are alleging is a period of some four and a half months.

What happened in this case, and what we assert, is that rather than merely giving Mrs. English a pink slip and escorting her off the plant on March 15th, they instead harassed and humiliated her–

Anthony M. Kennedy:

Well, but I mean, I take it your position is the same if we… if you excise from your complaint or if you excise from the trial of the case the fact of the discharge, I take it you still can proceed with your cause of action?

M. Travis Payne:

–There’s absolutely no question about that.

In fact, the discharge is a minor point.

It… it is a whole series of elements going over a period of some four and a half months culminating in the discharge.

But absent the discharge, 95 percent or more of our case is still there.

Antonin Scalia:

Now, wait… wait.

The… the discharge as a… as an act may not be essential, but… but wasn’t… wasn’t an essential part of your case the fact that knowing that they planned to discharge her all the time, they made her go through all of these things?

If they didn’t really plan to discharge her at all, wouldn’t that make your case a lot weaker?

I mean, it… it… it may not be a separate humiliation–

M. Travis Payne:

Yes.

Antonin Scalia:

–a relatively minor humiliation, but all the rest are only… only terrible humiliations because the company knew it was going to fire her all along.

M. Travis Payne:

That… that is certainly–

Antonin Scalia:

So in that sense, it’s important to your case.

M. Travis Payne:

–part of it, Justice Scalia.

Antonin Scalia:

Sure.

M. Travis Payne:

In fact, it is our contention that rather than just fire her, if GE had the kinds of concerns it’s tried to raise about safety, about legitimate disciplinary action, they would have fired Mrs. English.

It is our contention that rather than do that, they made an example out of her.

They chose… and this is in fact another aspect of the intentional infliction… they chose basically to engage in a psychological assault against Vera English, a woman that they knew was particularly susceptible to that form of attack.

Before the Administrative Judge, one of the primary defenses of the company was that Mrs. English was a highly excitable, nervous woman.

That is the woman that they chose to subject to an extended period of humiliation and harassment.

We submit that they in fact knew that the result would be essentially driving Mrs. English to the brink of a complete emotional breakdown.

Now that… that in fact is a second element in the claim.

We must show intent.

We must show not only outrageous conduct, but we must show that the company had the actual intent to inflict emotional distress on Mrs. English.

That, again, is a fairly heavy burden that we have to carry at trial.

Byron R. White:

That may be, but do you think that… that there will be a remedy for this under the Federal act?

I am not suggesting that would… if you answer yes, I’m not saying you’ll lose your case at all.

But wasn’t there an action for this same course of conduct under the Federal law?

M. Travis Payne:

Under Section 210… and I’ll say that on the remand, which there is the separate case and that Department of Labor case has been appealed to the Fourth Circuit, the holding of the Administrative Judge was reversed on timeliness, and it was remanded.

And this may be what Justice White is referring to… I don’t know, correct me if I’m wrong… that there was some indication that perhaps prolonged harassment was actionable.

Byron R. White:

I beg your pardon.

Byron R. White:

I’m just asking for your view under… is there a remedy for this course of conduct under the Federal statute?

M. Travis Payne:

I don’t think there is an adequate remedy.

No, Your Honor.

Byron R. White:

I didn’t ask that.

Is there a remedy for it?

M. Travis Payne:

There is somewhat of a remedy under Section 210.

There are compensatory damages.

Interesting point about that, it appears to me under Section 210 that in an appropriate case the Secretary might be able to award consequential damages for a mere retaliatory discharge.

Consequential damages perhaps in the form of stress and humiliation.

And in that case, the retaliatory discharge itself might not rise to the level of outrageous conduct intended to inflict serious emotional distress.

So it… you might possibly in the Section 210 action get a small amount of damages, where if you tried to bring the state tort that we’re here before you on, you would not be able to meet the elements.

So it’s kind of a mixed situation.

I would say that a remedy under Section 210 for these types of claims is just not adequate though.

Antonin Scalia:

He can impose punitive damages, too, can’t he, under 210?

M. Travis Payne:

No.

Antonin Scalia:

No?

M. Travis Payne:

The punitive damages only come into play under Section 210 if the employer refuses to abide by the Secretary’s order, and if the Secretary must then seek enforcement in the district court, and at that level only would punitive damages be available.

And it’s really, to my way of thinking, not clear who gets those punitive damages, the Secretary that’s seeking them.

They are not, as an initial matter, available to the complainant in a Section 210 action.

Antonin Scalia:

xxx.

M. Travis Payne:

Punitive damages are well-recognized in North Carolina.

It’s a claim that’s been there for years.

They’ve been recognized in intentional infliction of emotional distress damages.

There’s no question.

Byron R. White:

xxx your statement?

M. Travis Payne:

Justice White, there is no statutory limit.

I will tell you that our courts are fairly hostile to those form of damages so there’s a real world limit.

But in terms of statutory of law–

Byron R. White:

xxx.

M. Travis Payne:

–I’m sorry.

Byron R. White:

The juries aren’t?

M. Travis Payne:

Right.

This Court recognized in Farmer… Farmer v. the Carpenters Union… that when employment actions are carried out in an… a particularly abusive fashion, the fundamental interests of the states in maintaining order and preventing abusive conduct is not preempted by Federal employment law.

I submit to that Mrs. English’s case presents just such an example of abusive conduct and falls well within the doctrine annunciated by this Court in Farmer.

For that reason, I submit that the decisions of the lower courts should be reversed.

And I would like to reserve my remaining time.

Thank you.

William H. Rehnquist:

Very well, Mr. Payne.

Mr. Wright.

Christopher J. Wright:

Mr. Chief Justice, and may it please the Court:

I will first address GE’s contention that Petitioner’s claim intrudes on the Federal nuclear safety field and then turn to GE’s contention that it conflicts with specific provisions of Section 210.

As this Court stated in Pacific Gas & Electric, Congress has decided that the Federal Government, and not the states, should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant.

I want to make clear that the Federal Government believes that such regulation is solely a Federal matter.

However, like the courts below, we do not think that Petitioner’s claim intrudes on the Federal field.

Nothing about her claim is dependent on the fact that she worked at a nuclear facility, and GE needs change no aspect of its nuclear program in order to avoid suits such as Petitioner’s.

It need only change its labor practices.

As the district court said in this case, with respect to the field preemption issue, nuclear safety is only tangential to this case.

Sandra Day O’Connor:

Mr. Wright, should we read… should we view Section 210 as just providing an additional Federal remedy for circumstances such as in this case?

Christopher J. Wright:

That’s right.

We think that it supplements rather than supplants.

Sandra Day O’Connor:

You suggested in the government’s brief… or the government’s brief suggested, anyway, that somehow there might be some kind of Federal preemption of certain defenses by virtue of Section 210.

Christopher J. Wright:

Yes.

Sandra Day O’Connor:

I must say, I don’t understand that.

Can there be selective preemption for certain aspects of the state suit?

Christopher J. Wright:

Let… let… let me try to explain that.

That’s really a conflict preemption problem, and I’m not sure that it wouldn’t–

Sandra Day O’Connor:

What?

Christopher J. Wright:

–A conflict preemption matter as opposed to a field preemption matter.

For instance, one could suppose a state law action in which reinstatement was a possible remedy.

One could also suppose that in a Section 210 action, or in a proceeding before the Nuclear Regulatory Commission, it had been determined that the particular employee had committed safety violations.

Christopher J. Wright:

Now, in that situation, we would contend there would be an actual conflict between a state remedy of reinstatement, for instance, and the Federal interest in protecting the field of nuclear safety.

We would be on the other side in such a case.

But that is not this case, and the difference, let me reiterate, because–

Anthony M. Kennedy:

Does the… does 210 require discharge of an employee who’s violated a safety regulation?

Christopher J. Wright:

–No, Justice Kennedy.

Anthony M. Kennedy:

Well, then there’s not really a square conflict in the case you suppose so the state ordered reinstatement.

Christopher J. Wright:

That’s why I say I’m not sure it really depends on Section 210.

Even before Section 210 had been enacted 24 years after the Atomic Energy Act was enacted, I am confident that we would argue that conflict preemption principles barred reinstatement of a… of a serious violator of nuclear safety rules under state law.

That–

Byron R. White:

That is a state concern, isn’t it?

Christopher J. Wright:

–Yes, and in that case there’s a real conflict between… would be a real conflict between the state law and Federal law–

Byron R. White:

Well, not only that but that’s… there’s just… there’s just safety preemption under the Atomic Energy Act.

Christopher J. Wright:

–Yes, that’s right.

The field Congress has occupied is the… is the nuclear safety field I’ve used as a shorthand–

Byron R. White:

While I’ve got you interrupted, is the… is a plaintiff free just to ignore the administrative process before going to state court?

Christopher J. Wright:

–We don’t think that there is any sort of exhaustion requirement or anything.

Perhaps your question–

Byron R. White:

Well, that… that certainly is there for a purpose, I suppose.

And it’s there for a safety purpose, isn’t it?

Christopher J. Wright:

–That is true and, as GE has pointed out, it is the case that the filing of a whistleblower claim will in some circumstances alert the NRC to a safety violation.

Byron R. White:

It always will.

Christopher J. Wright:

Well, of course, in this case it didn’t because she’d already complained to the NRC.

And… and of course, in most whistleblower cases the employee has already blown the whistle so that it’s only in the sort preemptive retaliation cases, if you will, that the NRC wouldn’t already know about the underlying violation.

In those cases, we… we have stated–

Byron R. White:

But that issue isn’t here, is it?

Christopher J. Wright:

–Well, it’s… no, it’s not involved in this case, as I say, because Mrs. English had complained to the NRC already.

In short, we… we… we see a problem there.

We think GE greatly overstates the extent of that problem.

GE’s argument with respect to field preemption runs as follows.

Section 210 has some relationship to the field of nuclear safety, and her claim overlaps to some extent with the Section 210 claim.

Christopher J. Wright:

But that overlap does not establish intrusion on the Federal field because Section 210, as I indicated briefly in response to Justice O’Connor’s question, is, in our view, primarily an employee protection statute, as its title states.

Before it was enacted, the NRC already prohibited nuclear employers from retaliating against whistleblowers.

Section 210 just added a remedy.

And in some cases, as in this case, no wrongful discharge action would have been available under state law.

So a supplemental remedy was needed, at least in some states.

In addition, Section 210 is administered by the Department of Labor, not by the NRC, which we think emphasizes the fact that it’s primarily an employee protection statute and… and not a nuclear safety statute.

Antonin Scalia:

It is an employment protection statute that is designed to make sure that the agency is doing its job or the, in this case, the utility is doing its job properly.

Christopher J. Wright:

Yes.

There’s no question.

Antonin Scalia:

That’s right.

Christopher J. Wright:

There’s no question that it has nuclear safety aspects as well.

Antonin Scalia:

I… I don’t find that line you’re trying to draw between labor protection and safety a clear one.

I–

Christopher J. Wright:

It is–

Antonin Scalia:

–I think that that’s how we have to decide these… these matters, to decide whether this is a labor provision or a safety provision.

Christopher J. Wright:

–We don’t think you have to decide whether Section 210 is a labor provision or a safety provision.

We think you have to decide whether Petitioner’s claim intrudes on the Federal nuclear safety field.

GE… GE’s argument is simply that because her claim overlaps to some extent with Section 210, which in turn overlaps to some extent with nuclear safety matters, it’s preempted.

But, you’re right.

I’d like to return… the real question is whether her claim intrudes onto the nuclear safety field.

The Federal Government does not think that it does.

Antonin Scalia:

Although you acknowledge it does have safety aspects.

Christopher J. Wright:

Yes, and I would return to the district court’s characterization of the… of the nuclear safety issue in this case as being only tangential or in the background.

I think GE’s concession with respect to the battery hypothetical that Mrs. English raised in her… in her brief is instructive in this respect.

They concede that she would not be barred from going forward with a battery claim if they had physically assaulted her.

Now, it’s true that a battery claim doesn’t overlap with a Section 210 claim.

However, with respect to their effect on the nuclear field, there’s no difference.

Both would arise out of retaliation for making a nuclear safety complaint, and both could result in extensive damages being levied against the operator of a nuclear facility.

But in our view, neither intrudes on the Federal field to the extent that preemption is warranted.

William H. Rehnquist:

This is a… this hypothetical is a battery committed by the corporation?

Christopher J. Wright:

Yes.

If instead of, as they allege, psychologically harassing her for four and a half months, they had instead, or in addition, had someone beat her up.

In our view, this is an easier case than both Pacific Gas & Electric and–

Antonin Scalia:

Excuse me.

Are you saying if this was real preemption, a battery would be preempted as well?

Is that your point?

Christopher J. Wright:

–Well, I–

Antonin Scalia:

I mean suppose… suppose a state has a… has a law that says you can’t break somebody’s legs in order to make him commit an unsafe practice in a nuclear facility.

Would that be preempted?

Christopher J. Wright:

–That hypothetical is, of course, quite troubling because–

Antonin Scalia:

I know it’s troubling.

Christopher J. Wright:

–you had it framed exactly–

Antonin Scalia:

It’s right in the heart of nuclear safety, isn’t it?

Christopher J. Wright:

–You’ve… you’ve established a special rule for nuclear facilities.

Antonin Scalia:

Regardless.

Christopher J. Wright:

We might well have some trouble with that.

Antonin Scalia:

Regardless, would that state law be precluded because it’s squarely in the field of nuclear safety?

Christopher J. Wright:

I think we would say it would–

Antonin Scalia:

Wow.

Christopher J. Wright:

–since it’s aimed at that field.

But, of course, a regular battery action, is not.

Just as a regular intentional infliction of emotional distress–

Antonin Scalia:

Well, this one… this one isn’t aimed particularly at this field either.

Christopher J. Wright:

–The intentional infliction of emotional distress wasn’t?

Antonin Scalia:

Yeah.

Right.

Christopher J. Wright:

And that’s why we say it’s not preempted, or that’s one of the reason we say–

Antonin Scalia:

Any general law is not preempted even if it’s in the… directly in the safety field?

Christopher J. Wright:

–Unless it has an effect and except to the extent that it actually intrudes on the Federal field.

If, for example, as I hypothesized, a nuclear safety violator was ordered to be… excuse me… reinstated, we would argue for preemption in such a case.

Christopher J. Wright:

There would be a real conflict there.

Antonin Scalia:

xxx called field preemption and conflict?

Don’t you… aren’t you ultimately coming back to a conflict all the time?

Christopher J. Wright:

No.

No, Justice Scalia.

If… if… if a state passed a law that really involved a nuclear field and was supportive of the Federal goal, a whistleblower statute… well, not a whistleblower statute… a regulation designed solely to make nuclear plants safer… it is, of course, part of the NRC’s purpose to make nuclear plants safer.

But because that’s a Federal field, a state law, even one that doesn’t conflict, even one that promotes the Federal goal–

Antonin Scalia:

What you are saying is that it is not the purpose of the Federal law to make them any safer than it made them.

There is a tradeoff between how safe you want to get and what the costs of improved safety are, and the Federal law said we want them this safe and no safer.

Christopher J. Wright:

–Well–

Antonin Scalia:

And to make them safer than that is to create a conflict.

Christopher J. Wright:

–I’ll… I’ll concede that if you look at it that way, you could always find field preemption to be a conflict.

Byron R. White:

Yes, I would say that there’s field preemption if the… if the state purported to give an additional remedy for a violation of a Federal safety rule.

Christopher J. Wright:

If it was aimed at nuclear safety, of course.

Byron R. White:

Well, they just… they say here’s another remedy, an additional remedy, for violating a Federal safety rule.

Christopher J. Wright:

Well, I stress that… the nuclear safety because in the… in the Goodyear Atomic case this Court upheld an additional remedy under a Worker’s Compensation statute–

Byron R. White:

Well, I–

Christopher J. Wright:

–that was… that was on account of violation of a safety regulation.

So I’d say we would… we would say, of course, if it was a nuclear… if a state did something particularly aimed at the nuclear field, yes,–

Byron R. White:

–Yes?

Christopher J. Wright:

–we would argue for preemption in that case.

With respect to Pacific Gas & Electric, GE argues that that case is distinguishable because the state was regulating economic matters rather than… than labor matters.

We think what is most significant in that case was that the state was not regulating nuclear safety matters.

It says that Silkwood is distinguishable because there was some legislative history indicating that Congress assumed that the persons who had been injured by exposure to radiation could pursue state remedies.

We agree with the First Circuit in the Norris v. Lumbermen’s case that it’s reasonable to suppose that Congress intended to supplement remedies to allow whistleblowers, as well as those injured by exposure to radiation, to pursue claims such as Petitioner’s as well.

Let me make just one point with respect to… or further point with respect to conflict preemption.

The Court should keep in mind that all three of the subparts of Section 210 that GE focuses on in… in that part of its brief are virtually identical to provisions in six other environmental statutes where state regulation is specifically contemplated by the Federal statute.

Thus, none of the three statutes… none of the three subparts, either individually or in combination, inherently conflicts with concurrent state regulation.

If there are no more questions, I have nothing further.

William H. Rehnquist:

Thank you, Mr. Wright.

William H. Rehnquist:

Mr. Phillips, we’ll hear now from you.

Carter G. Phillips:

Thank you, Mr. Chief Justice, and may it please the Court:

Contrary to what certainly Mr. Payne has said, and to a certain extent to what the Solicitor General’s office has argued, this is a case about nuclear safety.

Section 210 of the Energy Reorganization Act is a statute that protects whistleblowers at nuclear facilities from retaliation by their employers for the purpose of ensuring that those facilities are operated consistent with public health and safety.

The enforcement mechanisms and procedures and remedies provided by Section 210 are an integral part of the field of safety that the Congress and this Court have long recognized to be an exclusive matter of Federal concern.

There is frankly no room for an alternative mechanism or procedure under state tort law for activity plainly covered under Section 210.

And, therefore, Petitioner’s efforts to obtain additional relief in the form of a $1.3 million request for compensatory damages and a $2.3 billion request for punitive damages for a claim that she describes in her own complaint as one arising for reprisals with respect to her terms and conditions of employment for disclosing to the Nuclear Regulatory Commission noncompliance with law by General Electric, must fail.

Because safety in the operation of a nuclear facility is directly implicated in this case, it must properly be analyzed under the field preemption doctrines that this Court applied in Pacific Gas & Electric and in Silkwood.

In those cases, the Court made absolutely clear that the Federal Government has occupied the entire field of nuclear safety concerns.

Accordingly, the appropriate legal standard for analyzing the preemption in this case is the standard the Court announced initially in Rice and reaffirmed in PG&E, and the question is whether the matter on the which the state asserts the right to act is in any way regulated by the Federal act.

In order to evaluate that, then, we must begin by examining what it is that the Federal statute regulates in this case.

Clearly, the Federal scheme regulates retaliation in the work place for reporting violations of safety requirements and threats that such retaliation… excuse me… and treats such retaliation as itself a serious safety concern.

What the Solicitor General ignores and what the Petitioner plainly ignores is the fact that these kinds of reprisals and retaliations have been recognized by the Nuclear Regulatory Commission since 1973 as a serious matter of safety vel non.

That is, that the fact of retaliation is itself a significant risk to the safety of the nuclear facility, and the NRC has explicit and specific authority not only to condition a license but to revoke a license solely as a consequence of an employer retaliating against an employee for actually presenting the NRC, or even the employer, with a concern with respect to safety.

Thus, this is not peripheral concern to the NRC.

This is at the core of how the NRC ensures both technical safety in the facilities, management concern for safety in the facilities and assures that other employees are not deterred from bringing forth either to the NRC or to the employers the kinds of concerns about safety that they may have.

In addition, I think it’s pretty clear by looking at the elements of Section 210 that it is… that it is designed ultimately to promote safety as its ultimate goal.

While it does, of course, provide specific remedies for the employees, its discrete elements also reflect that the ultimate purpose of this legislation is to ensure nuclear safety at every facility.

First, Section 210 does have a short limitations period, which is unquestionably going to encourage problems with safety to be reported quickly to the Secretary of Labor.

Second, the provision directly contemplates a close interrelationship between the Secretary of Labor and the Nuclear Regulatory Commission so the Commission can act immediately upon being informed of a problem with the Secretary of Labor–

Byron R. White:

A… there’s not going to be much of a chance for retaliation unless somebody’s already reported something.

So–

Carter G. Phillips:

–But the question is to whom they have reported the violation.

The majority of circuits hold that a report to the employer which has not made it to the NRC is itself protected activity under Section 210 and, therefore, retaliation for those reports are compensable.

The NRC would never have learned about that kind of conduct but–

Byron R. White:

–But that–

Carter G. Phillips:

–for the fact of a filing with Section 210.

Byron R. White:

–That isn’t so with this case, is it?

Carter G. Phillips:

That is not so in this case.

But the second part that Section 210 worries about as a safety concern is the fact of retaliation.

Carter G. Phillips:

The fact, if proved, that Mrs. English was subjected to a course of harassment in the four months before her final layoff is a concern to the Nuclear Regulatory Commission by itself and, therefore, you need to have Section 210 in order to promote that secondary but very vital safety concern embodied in this statute.

In addition, Section 210 provides full compensatory relief.

There’s an opportunity for back pay and reinstatement and compensation for injuries.

Byron R. White:

In a field occupation what kind of a remedy there is is irrelevant, isn’t it?

Carter G. Phillips:

No, because the value of knowing the nature of the remedy is that the legal test under Rice is, is this a matter in anyway regulated by the Federal Government?

If the Federal Government is providing you a specific remedy for the precise claims you bring as a matter of state law, then it’s absolutely clear that the action on which the state is operating is precisely the same as the Federal Government, and if you are in an area of Federal preemption, then the state action must be set aside.

Byron R. White:

Well, I… but that certainly doesn’t depend on how adequate the Federal remedy is.

Carter G. Phillips:

Oh, no, that’s true, Justice White.

I would be here arguing today just as strenuously if Section 210 did not exist because of the Nuclear Regulatory Commission’s regulation that recognizes the discrimination–

Byron R. White:

That’s right.

Carter G. Phillips:

–in terms and conditions.

But, as this Court recognized in Silkwood, it felt at least some uneasiness with the inadequacy of the remedy that otherwise would exist.

To the extent that was any concern in Silkwood, it is clearly not a concern in this specific case.

With respect to the last two elements of Section 210, it only permits the Secretary to obtain punitive damages, not the employee, and the reason for that is to insure against over-deterrence from employer’s who have reason to respond to employee problems which themselves can be a serious safety concern.

And finally, Section 210 precludes relief when an employee deliberately violates Section 210(a).

And I think in that respect it’s important to I think get a little more mileage out of Section 210(g) than perhaps we did in our brief because if you read 210(g), it accepts a remedy under Section 210(a) itself, which the Solicitor General pointed out in his brief.

But that suggests to me that Congress must have anticipated that Section 210(a) is the only appropriate relief for these kinds of work place problems because it is inconceivable that Congress would have said, no, we absolutely don’t want you to get any recovery, including reinstatement, under Section 210(a), but we have no concerns whatsoever that you can go to state court on a wrongful discharge action and be placed right back in.

That’s not the way Congress would have operated.

I think the limitations in Section 210(g) clearly reflect Congress’ expectation that state law was not going to be available to an individual in Mrs. English’s position.

Accordingly, the elements of Section 210 operate in tandem with the general preemption of the field of nuclear safety in a way that makes Mrs. English’s claim unquestionably preempted.

One other element that I suggest aids us with respect to the preemption question is the kind of analysis the Court employed in Schneidewind, where it said when you’re dealing with occupation of the field problems what you need to worry about is whether there is an imminent threat of conflict between the way the state operates… the state law operates and the way the Federal concerns are being employed.

And in… and in this case, it’s clear to me that if you give someone the opportunity to seek punitive damages, $2.3 billion, they are going to go to state court and they are not going to go to the Secretary of Labor, and a lot of impertant safety concerns are not going to be brought timely and promptly to the Nuclear Regulatory Commission in a way that is completely inconsistent with the way the scheme operates and completely inconsistent with notions of field preemption.

Antonin Scalia:

What is the $2.3 billion figure, Mr. Phillips?

Carter G. Phillips:

That is a calculation at the time, at least of the complaint, of 5 percent of the… I think gross… of the assets of GE, and it was a calculation the district court made in this case as to what… as to what was asked for.

Notwithstanding in my mind the clear field preemption argument that applies in this case and ousts Mrs. English’s claim, Petitioner and her amici offer three rationales for holding that the claim is not preempted.

First, Petitioner’s primary answer in her reply brief is that Section 210(g)… excuse me… Section 210 is not itself a serious safety statute in the nuclear field.

It may concern safety, but it is… it has antecedents in non-nuclear areas and, therefore, is beside the point for purposes of nuclear safety.

I submit to you that that is an incredible interpretation of a statute that is clearly part of the nuclear field that has been occupied by the Federal Government for the last 25 years and is an incredible assessment of how Congress operates when it enacts legislation, and that there’s simply no basis for ignoring the safety concerns underlying Section 210 that exist in this case.

Second, Petitioner and her amici argue, I think somewhat more strenuously, but with no greater effect, that field preemption doctrine in the nuclear area ought to be turned on its head.

That is, that in this area alone… in the area of nuclear safety, which I submit is probably as important and one that requires a uniform Federal role as any area of law that I can imagine, the Federal Government comes to the Court and says in this one area what you need is a good purpose.

Carter G. Phillips:

That is, if you have a non-safety purpose in your state law for what you’re doing, that you are free to walk through the Federal field that’s otherwise preempted by the Federal Government.

That is not what this Court held in Silkwood.

In fact, it is manifestly inconsistent with what the Court said in Pacific Gas & Electricity, where it held it would be clearly impermissible for California to regulate the construction and operation of a nuclear facility for such regulation, even if enacted out of a non-safety concern, would nevertheless directly conflict with the NRC’s authority over plant construction and operation.

The government turns the issue of state purpose on its head in this case.

The purpose inquiry in that case was, if you’re in an area ceded to the state and you have nevertheless a purpose to interfere with nuclear safety or you’re operating for nuclear safety reasons, you are nevertheless preempted even though it’s an area that Congress had ceded to the states.

It in no way supports the argument that if you are in the area of operations of a nuclear facility that if your purpose happens to be not to interfere with nuclear safety in anyway, that that nevertheless is somehow exempt from field preemption analysis.

Antonin Scalia:

What do you do… what do you do about the general criminal law examples that the government gives?

You know, the company hires somebody to… to murder an individual who makes a safety complain.

Carter G. Phillips:

Our argument is–

Antonin Scalia:

I assume that state law would be applicable.

Carter G. Phillips:

–Absolutely.

No question about that, Justice Scalia.

I conceded essentially as much in our brief.

The point here is that the scope of the field that Congress has preempted in this case is defined by Section 210.

210 says that the Federal Government’s safety concerns are regulated… and that’s important… regulated, not just a matter of some concern to the Federal Government, but are regulated… then what you’re talking about is retaliation for reporting safety violations.

When you’re in that sphere, the Federal Government regulates it, and if you purport to act through state law, no matter what label you want to place on the state tort action, you are nevertheless preempted under any kind of conventional theory of field preemption law.

If you go beyond that field, that is, does… does the Nuclear Regulatory Commission regulate murder or battery as part of the discrimination in terms and conditions of employment–

Antonin Scalia:

Well, I–

Carter G. Phillips:

–the answer is clearly no.

Antonin Scalia:

–Yeah, but, my… my hypothetical was the reason for the murder was to punish the person for reporting the safety violation and to prevent further safety violations.

That was the reason for the murder.

Carter G. Phillips:

I see what you’re saying.

Well… I mean, I… fortunately, I don’t have to defend the argument that would nevertheless be preempted, although I think you could read the majority opinion in Pacific Gas & Electric as suggesting that if you have an impermissible purpose, even though you’re dealing in an area ceded to the states, that that may be preempted.

But the Court in that case held that that wasn’t a problem because that wasn’t the purpose of the law.

And my guess is that most instances, since you are talking about a general criminal statute, that’s not going to be any kind of a problem because it’s clear that… what the purpose of the murder statute will be.

William H. Rehnquist:

But if you say the… the criminal law is not preempted because that’s not the kind of thing the Nuclear Regulatory Commission is interested in, couldn’t you say the same thing about the intentional infliction of emotional distress that the… that 210 doesn’t purport to deal with that, just as it doesn’t purport to deal with battery?

Carter G. Phillips:

But in… in field preemption areas this Court has never said we look at labels for what the state is doing.

In the field preemption area you have to look at the specifics of what’s at issue and what is the matter that the state purports to regulate.

And the matter that the state purports to regulate under Mrs. English’s own complaint is retaliation in the work place arising out of… out of reporting of safety violations.

And that’s… that’s what her claim is.

Carter G. Phillips:

And if she goes further and says not only should have received recompense for wrongful discharge, but there were some additional injury imposed upon me of an emotional character.

But the district court went through each one of those elements and concluded that all five of the elements of her complaint are clearly compensable under Section 210.

And if you excise out all that’s compensable under Section 210, what remains of Mrs. English’s complaint is wholly inadequate to stay a cause of action for intentional infliction of emotional distress as a matter of North Carolina tort law.

Antonin Scalia:

I think the way you… you’ve distinguished the murder case and the battery case ultimately is that… is that you say that all that 210 deals with is, as you just phrased it, retaliation in the work place… retaliation through dismissal.

Carter G. Phillips:

Or other terms and conditions of employment.

Antonin Scalia:

Or other terms and conditions of employment.

So it would be only general state laws relating to that very narrow area.

Carter G. Phillips:

That’s correct.

Antonin Scalia:

Yeah, but that… but that seems so irrational that the… the Federal Government doesn’t care how much you… you tinker with whistleblowing and… and how much you… you alter the balance between… that delicate balance that you point out between how much incentive and disincentive you want to whistleblowing.

We don’t care what… how you do it through other laws, just don’t do it through laws that relate narrowly to retaliation through dismissal or other terms and conditions of employment.

I mean, gee, there are a lot of other ways to… to dispute–

Carter G. Phillips:

I agree that… that–

Antonin Scalia:

–which is not persuasive.

Right?

Carter G. Phillips:

–Well, the distinction, though, is the one Congress made.

And I’m sure the reason it made the distinction is that the most likely response in an employment setting to a… a report of a safety violation is that you’re going to retaliate in terms and conditions of employment.

It is not rational to assume that your basic nuclear licensee is going to go out and hire thugs and start shooting people.

And Congress responded to what it perceived to be the most general and likely problem by saying that’s a serious safety problem that we need to regulate on a day-to-day basis.

For the… for the once in a lifetime… hopefully never in a lifetime… situation where the kind of general laws you’re talking about might come into play, it seems quite rational to me for Congress to say we’re content to allow the states to respond to that problem, that is a matter of serious concern to them, it doesn’t affect us in a regular way that requires us to have the NRC and the Secretary of Labor jointly regulating to further the ultimate ends of safety in a nuclear facility.

Byron R. White:

Mr. Phillips has… does 210 reach any whistleblowing that relates to anything other than safety?

Carter G. Phillips:

No.

It’s… it is retaliation for violations of the NRC’s rules and requirements.

Byron R. White:

Well, there are a lot of rules and requirements that aren’t dealing with safety.

Carter G. Phillips:

Well, the vast majority of the rules and requirements are designed to promote safety in one sense or another.

Byron R. White:

But there are some that aren’t safety related, aren’t there?

Carter G. Phillips:

But… but, see, I… I would still say that the–

Byron R. White:

Isn’t that true?

Carter G. Phillips:

–That is true, Justice White, but–

Byron R. White:

So… so there would be protection under 210 for a whistleblower who reported something that isn’t related to safety.

Now, I don’t suppose you would say there’s field preemption there.

Carter G. Phillips:

–Well, I think the way the statute is designed, there would be field preemption there because, again, I think that what… what the basic judgment under Section 210 is, is that any time you have a situation where management is defying requirements of the Nuclear Regulatory Commission, that is in itself a serious safety concern.

Now, it may not be that the specific problem is safety related, but that kind of defiance is something the NRC needs to know for purposes of providing… of deciding whether or not this is somebody who should retain the privilege of a license to operate a nuclear facility.

Let me turn just quickly to the point that I think is terribly important in this case, and that is the scope of the preemption that General Electric urges in this case.

We’re not saying that all whistleblowing statutes preempt all state law.

Section 210 was enacted against a backdrop of a very specialized concern of nuclear safety.

The history of nuclear regulation in this country, as outlined in the Pacific Gas & Electric case, makes that clear, and I think Congress knew that when it enacted this statute and had reached the conclusion that it did, that this is the appropriate way to proceed.

And that’s… and so that if the Court holds that Section 210 is preemptive, to my mind that says nothing about preemption elsewhere.

In addition, we do not urge the Court to hold that all kinds of state tort actions or all state criminal laws are preempted in this setting.

Our… our position is that what is preempted is that which the Federal regulates and that’s changes in terms and conditions of employment.

Thus, our claim here is a relatively narrow, and one that I think–

William H. Rehnquist:

But her… her claim isn’t… isn’t for simply a wrongful discharge under state law, as I understand it.

Carter G. Phillips:

–No, but the rest of her claim, the harassment parts of her claim, are still covered by Section 210.

She can get full recompense under Section 210 for everything that’s alleged in her complaint with the possible exception… this is not clear to me… but with the possible exception of being escorted out under armed guard.

Everything else is… is covered because Section 210 not only deals with sort of technical and formal altering of the terms and conditions of employment, but, like Title VII in the Meritor analysis the Court employed a couple of terms ago, it also responds to the problems of general reprisals and an atmosphere of harassment.

And all of her claims fall squarely into that and all of those claims have been upheld as stating a claim under Section 210 by the Fourth Circuit with respect to Mrs. English herself.

So, the opportunity for recompense for everything she’s alleged is still there, with one exception, and that exception the district court specifically found as a matter of state law is not enough to state a claim for intentional infliction of emotional distress in this case.

William H. Rehnquist:

So your theory is that she may not rely on any element for which she could get compensation under Section 210 in trying to state a claim under state law?

Carter G. Phillips:

That is precisely my position, Justice Rehnquist, and I would rely on Rice for that point, which is that you have to look at the matter the state purports to regulate and determine whether or not that is a subject matter regulated by the Federal Government.

And I don’t know what can more clearly demonstrate regulation by the Federal Government than that the Federal Government accepts a claim for that and provides complete recompense for the claim that you bring forward.

In sum, the rule proposed by General Electric is not designed to be all or nothing.

Our position is that the Federal Government’s expressly preempted occupied field of nuclear safety should be respected by this Court and the role… the vital role that Section 210 plays in that ought to be recognized by the Court and the scope of preemption defined by reference to the specific provisions of Section 210.

Outside of that field, it’s clear to me that the state’s retain all of the authority they otherwise would have to regulate nuclear facilities.

Antonin Scalia:

It seems to me, however, that once you… you do narrow your argument like that and say, all we’re talking about is providing recompense for the very same things, namely, employment related retaliation and no other types of retaliation… it seems to me that once you narrow your argument that way you’ve abandoned the field preemption argument and you’re arguing conflict.

Carter G. Phillips:

No.

It’s very important to understand, and–

Antonin Scalia:

Well, if–

Carter G. Phillips:

–if I didn’t make this point clearly–

Antonin Scalia:

–If you’re arguing field preemption, you’re saying anything that… that affects safety regulations.

Carter G. Phillips:

–Well, the question is how do you define the field, and the field… and if Section 210 is in the field, it is part of the definition of the field.

And if what you purport to regulate as a matter of state law is precisely what the Federal Government regulates under Section 210, you are in the field of nuclear safety, and the states are not permitted to be there, regardless of what their purpose in being there.

Antonin Scalia:

Be in the field if it were not precisely the same thing, but were some other aspect of safety regulation.

Carter G. Phillips:

Well, there’s no question that there might be a broader theory.

But I am content, frankly, to win on the theory that this is precisely the same thing that Section 210 provides for, and that, to me at least without any question in my mind, has to be part of the field preemption analysis.

Whether it could go further is certainly there, and we make some arguments in the briefs that might reflect that.

But I think the basic… easiest basis for deciding this case is to say what is the relationship between the 210 recovery and what she seeks from state law, and there’s a complete correspondence on that point, and what is leftover, to the extent that there is not a complete correspondence, is insufficient to permit her to go forward as a matter of state law.

Let me conclude by what I started.

This is a case about nuclear safety, and it is clear to me that Petitioner’s complaint predominantly intrudes into the area of exclusive Federal concern and what is left of her claim is simply insufficient as a matter of law.

Accordingly, the judgment of the court of appeals dismissing her complaint should be affirmed.

If there are no further questions, I waive the balance of my time, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Phillips.

Mr. Payne.

M. Travis Payne:

Thank you.

Without conceding it, I will say to you that even if you determine that Section 210 is a statute affecting nuclear safety, that that is its predominant role… even if you conclude that, we still win in the following ways.

This Court has spoken the premier field… premier examples of field preemption are the issues dealt with in Sections VII and VIII of the National Labor Relations Act.

Yet this Court has addressed those issues and the issue of state court preemption in two very different ways.

They have in fact… this Court has in fact applied the field preemption.

Anything that the states do is preempted in the situation where the states have enacted a specific narrow state statute dealing with the specific matter of collective bargaining.

Garner v. Teamsters way back when, a more recent version of that, Gould v. Wisconsin.

But then there are the NLRA cases where the state law at issue is a state law that has nothing to do with labor relations, is in fact one of general concerns of the state, such as intentional infliction of emotional distress.

When this Court has confronted a state law of general application, a state law that applies separate and apart from the field of labor relations, it has in fact applied the conflict preemption.

I think, Justice Scalia, your point is well taken.

We look at United Auto Workers v. Russell.

We look at, in fact, Farmer v. The Carpenters.

William H. Rehnquist:

How… how about Allis Chalmers against Luick that we decided two… two or three years ago?

There the state law, as I recall it, did not deal just with labor relations and yet we held it preempted.

M. Travis Payne:

Justice Rehnquist, you’re going to have help me.

As I recall Luick, that was a matter alleging bad faith and it was covered under the collective bargaining agreement.

Is that… is that the case?

William H. Rehnquist:

Well, that the Court said if the… if the state law requires getting into any sort of interpretation of the collective bargaining agreement, it’s preempted.

But there, the state law was a general law.

M. Travis Payne:

Your Honor, I think that that particular state law is… is not a state law grounded in the same history of things like the violence considered by this Court in the UAW v. Russell–

William H. Rehnquist:

Then it depends–

M. Travis Payne:

–of the intentional infliction of emotional distress.

William H. Rehnquist:

–on what history the state law is grounded in whether or not it’s preempted?

M. Travis Payne:

I think to some extent this Court has in fact made almost those sort of balancing determinations when it looks at… there is… and, in fact, Rice, which the Respondent relies significantly, sets forth that when it is a matter that has been historically covered by the states, there’s a very, very heavy burden to preempt.

We submit that burden exists here and we submit it has not been met.

The case of Farmer in fact was never addressed by Respondent in its argument.

We submit, contrary to the finding of the district court, contrary to the argument of Respondent, that all of the actions against Mrs. English are not just terms and conditions.

Farmer clearly said that even if many of the elements of the intentional infliction of emotional distress claim are terms and conditions, if they are carried out in a particularly abusive manner… that’s the language of the Farmer decision, particularly abusive manner… they are still actionable under the state law theory.

We have here and we have alleged a particularly abusive manner.

The proposal put forward by General Electric to you, I submit, has an absurd result.

Employees who come forward with information about possible problems at a plant, the very employees who were doing what is socially responsible, doing the right thing, indeed, the very employees that Congress was trying to encourage to come forward, those employees when they do that are now penalized.

They don’t have the remedies available to them.

I submit to you that that result makes not sense and–

Antonin Scalia:

Yes, it does.

I mean, what… the theory that General Electric is… is propounding is that Congress was not only concerned that… that people should be able to be whistleblowers.

It was also concerned that people should be able to be fired, and that an… and that an employer should not be so overwhelmingly intimidated by… by the prospect of a… of a massive damages suit that he won’t get rid of somebody who should be gotten rid of.

I mean, that’s their theory.

So… so Congress established this law which… which provides for both ends of it.

Whistleblowing, plus you can fire.

M. Travis Payne:

–Two things, Justice Scalia.

We have all been talking about what Congress did.

There is absolutely… and Respondent did this a lot… there is absolutely nothing anywhere to show that Congress made any affirmative decisions about Section 210 other than to pass it.

All of the elements were in–

William H. Rehnquist:

Your time has expired… your time has expired, Mr. Payne.

M. Travis Payne:

–Thank you, Your Honor.

William H. Rehnquist:

The case is submitted.