VERA M. ENGLISH, PETITIONER V. GENERAL ELECTRIC COMPANY

   No. 89-152

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Fourth Circuit

   Brief For The United States As Amicus Curiae Supporting Petitioner

             TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Petitioner's state-law tort claim arising out of employer
      retaliation for making nuclear safety complaints is not
      preempted by federal law
      A. Congress's occupation of the field of nuclear
         safety regulation does not preclude tort actions
         based on employer retaliation for making nuclear
         safety complaints
      B. Section 210 does not occupy the field of nuclear
         whistleblower remedies or conflict with petitioner's
         claim
   Conclusion

                          QUESTION PRESENTED

   Whether Section 210 of the Energy Reorganization Act, 42 U.S.C.
5851, which provides a federal administrative remedy for employees who
suffer employment discrimination in retaliation for making nuclear
safety complaints, preempts an employee's state law tort claim based
on such retaliation.

                     INTEREST OF THE UNITED STATES

   Section 210 of the Energy Reorganization Act, 42 U.S.C. 5851,
authorizes the Department of Labor to adjudicate allegations of
employees who claim they have suffered employment discrimination in
retaliation for making nuclear safety complaints.  The Nuclear
Regulatory Commission (NRC) does not participate in proceedings
instituted under Section 210, but is extremely interested in learning
of safety violations by licensees of nuclear facilities.  See 47 Fed.
Reg. 54,585 (1982).  This case presents the issue whether Section 210
preempts state law tort remedies otherwise available to employees who
suffer retaliation because they "blew the whistle" on nuclear safety
violations.  That issue implicates the Department of Labor's
programmatic interest in ensuring full and adequate relief to such
employees and the NRC's interest in ensuring compliance with nuclear
safety regulations;  as a result, the United States has a substantial
interest in the outcome of this case.  The Court previously recognized
the government's interest when, at the jurisdictional stage, it
invited the Solicitor General to file a brief expressing the views of
the United States.

                               STATEMENT

   Petitioner Vera English was employed from 1972 to 1984 as a
laboratory technician at the nuclear fuels production facility in
Wilmington, North Carolina, operated by respondent General Electric.
In this diversity action, petitioner contends that General Electric
retaliated against her for making nuclear safety complaints, and
asserts a state law claim for intentional infliction of emotional
distress.  Pet. App. 2a, 6a-7a.

   1. In February 1984, petitioner complained to General Electric's
management and to the Nuclear Regulatory Commission (NRC) about a
number of perceived violations of nuclear safety standards at the
Wilmington facility.  She complained in particular about the failure
of her co-workers to clean up spills of radioactive materials in the
laboratory.  /1/ Frustrated with her employer's failure to address her
concerns, petitioner, on one occasion, deliberately failed to clean a
work table contaminated during a preceding shift with a uranium
solution.  Instead, she outlined the contamination with red tape to
bring the matter to the other workers' attention.  A few days later,
petitioner showed her supervisor the marked-off areas, which had not
been cleaned in the interim.  As a result, work was halted while the
laboratory was inspected and cleaned.  Pet. App. 2a, 7a-9a;  English
v. Whitfield, 858 F.2d 957, 959 (4th Cir. 1988).

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

   2. On August 24, 1984, petitioner filed a complaint with the
Secretary of Labor under Section 210 of the Energy Reorganization Act,
42 U.S.C. 5851, which prohibits employers from discharging or
otherwise discriminating against "nuclear whistleblowers," i.e.,
employees who complain about nuclear safety violations.  /3/
Petitioner alleged that General Electric's actions constituted
unlawful employment discrimination in retaliation for her complaints
to management and the NRC.  Pet. App. 3a n.2, 31a.  An administrative
law judge found that General Electric had violated the Energy
Reorganization Act when it transferred and then discharged petitioner.
 Id. at 30a-56a.  The Secretary, however, dismissed the complaint as
untimely because it had not been filed within 30 days after the May 15
notice of the final company decision.  English v. General Electric
Co., No. 85-ERA-2 (Jan. 13, 1987).  The Fourth Circuit affirmed that
decision, but remanded for consideration of petitioner's separate
claim that she was subjected to a continuing course of retaliatory
harassment after the May 15 disciplinary decision.  English v.
Whitfield, supra.  On remand, the ALJ also dismissed that claim as
time-barred.  English v. General Electric Co., No. 85-ERA-2
(Recommended Decision and Order Apr. 5, 1989).  The ALJ's recommended
decision is pending before the Secretary.

   3. In March 1987, petitioner filed this action against respondent
in federal district court.  Petitioner alleged that she had been
terminated in violation of the public policy evidenced in federal
nuclear safety laws and that she was suffering from severe depression
and emotional difficulties as a result of her employer's "intentional,
malicious, extreme and outrageous conduct." Pet. 8;  Pet. App. 6a,
11a.  In addition to challenging General Electric's actions in
transferring and ultimately firing her, petitioner alleged that
General Electric had:  (1) removed her from the laboratory position
under guard "as if she were a criminal";  (2) assigned her to
degrading "make work" in her substitute assignment;  (3) derided her
as "paranoid";  (4) barred her from working in controlled areas;  (5)
placed her under constant surveillance during work hours;  (6)
isolated her from co-workers, even during lunch periods;  and (7)
conspired to charge her fraudulently with violations of safety and
criminal laws.  Pet. App. 27a.  Petitioner sought compensatory and
punitive damages.

   The district court granted General Electric's motion to dismiss.
Pet. App. 6a-29a.  The court first rejected the company's arguments
that Section 210 regulates nuclear safety, a field preempted by the
federal government.  Id. at 17a, 18a.  But it held (id. at 19a-23a)
that three aspects of Section 210 nevertheless required it to conclude
that petitioner's state law claims are preempted:  (1) the provision
barring recovery by any employee who "deliberately causes a violation
of any requirement of (the Energy Reorganization Act) or of the Atomic
Energy Act" (42 U.S.C. 5851(g));  (2) the absence of any provision for
exemplary (or punitive) damage awards by the Secretary of Labor (42
U.S.C. 5851(b)(2)(B));  /4/ and (3) the requirement that
whistleblowers file their administrative complaints within 30 days
after the violations occur, and that the Secretary resolve such
complaints within 90 days after filing (42 U.S.C. 5851(b)(1) and
(2)(A)).  As the court perceived it, Congress enacted these provisions
to obtain speedy resolution of nuclear safety concerns, to limit
exemplary damage awards against the nuclear industry, and to preclude
reinstatement and compensation of employees who violate nuclear safety
requirements -- goals that the court found incompatible with the
broader remedies available under state tort law.  Pet. App. 21a-22a.
/5/

   In a per curiam opinion, the Fourth Circuit affirmed the dismissal
of petitioner's emotional distress claim for the reasons stated by the
district court.  Pet. App. 1a-3a.  /6/ The court of appeals concluded
that Congress had intended to foreclose nuclear whistleblowers from
pursuing state tort remedies, and stated that the district court
"correctly identified and applied the relevant federal and state law."
Id. at 3a.

                          SUMMARY OF ARGUMENT

   State law is preempted by implication where Congress has evidenced
its intent to occupy a given field or where state regulation actually
conflicts with federal law.  Silkwood v. Kerr-McGee Corp., 464 U.S.
238, 248 (1984).  However, the intent to preempt must be "clear and
manifest" where it involves a field traditionally occupied by the
States (Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)), and tort
law is such a field (Farmer v. United Bhd. of Carpenters, 430 U.S.
290, 304 (1977)).

   1. Congress has occupied the field of nuclear safety regulation.
However, the district court correctly concluded that nuclear safety
concerns are "only tangential" to petitioner's tort claim.  Pet. App.
17a.  Its decision that preemption is therefore not warranted on
account of intrusion into nuclear safety matters is confirmed by this
Court's decision in Pacific Gas & Elec. Co. v. State Energy Resources
Conservation & Dev. Comm'n, 461 U.S. 190, 213 (1983).  In that case,
the Court upheld a state law establishing a moratorium on nuclear
power plant certification because it determined that there was "a
nonsafety rationale" supporting it.  States have authorized awards for
intentional infliction of emotion distress not because of any concern
with nuclear safety, but because of their traditional interest in
protecting citizens from abuse.  Farmer, 430 U.S. at 302.
Accordingly, such tort actions do not intrude on the field that
Congress has occupied.  That conclusion is also supported by the
decision in Silkwood, where the Court held that state tort remedies
for exposure to radiation are not preempted because Congress has not
"expressly supplanted" those remedies.  464 U.S. at 255.

   2. The courts below erred by concluding that petitioner's claim for
intentional infliction of emotional distress is preempted by Section
210, the "nuclear whistleblower" provision.  Section 210 does not
occupy a "field," but is merely a single statutory remedy for a
particular type of employment discrimination by employers in a single
industry.  In any event, even a comprehensive regulatory scheme
preempts state law only if there are "special features warranting
preemption" (Hillsborough County v. Automated Medical Labs., 471 U.S.
707, 719 (1985)), and there are no "special features" in this case.
Neither the statute nor its legislative history provide any reason to
conclude that Congress intended to supplant, rather than supplement,
state remedies.

   None of the three provisions of Section 210 relied upon by the
district court conflict with petitioner's claim in a manner that
warrants preemption or indicates that Congress intended to occupy the
field of nuclear whistleblower protection.  Section 210(g), which
provides that "Subsection (a) of this section" does not provide a
remedy to employees who deliberately violate safety regulations, says
nothing about state tort remedies.  Moreover, any potential conflict
can be eliminated by allowing employers to assert a federal law
defense incorporating Section 210(g) in state actions.  Nor does the
absence of a provision in Section 210 authorizing the Secretary to
award exemplary damages require preemption.  "Ordinarily, state causes
of action are not pre-empted solely because they impose liability over
and above that authorized by federal law" (California v. ARC America
Corp., 109 S. Ct. 1661, 1667 (1989)), and there is no evidence that
Congress intended not to allow exemplary damage awards against
operators of nuclear facilities.  See Silkwood, 464 U.S. at 245
(affirming a $10 million punitive damage award against the operator of
a nuclear facility);  Section 210(d) (authorizing district courts to
award exemplary damages in enforcement actions brought by the
Secretary).  Likewise, the expeditious time frames in Section 210
simply indicate that Congress wanted federal whistleblower complaints
to be resolved quickly.  That a 30-day limit for filing federal claims
is not inconsistent with state regulation is clear from the fact that
six other federal whistleblower statutes -- each of which operates in
a field where state regulation is not preempted -- also have such a
requirement.

                               ARGUMENT

   PETITIONER'S STATE-LAW TORT CLAIM ARISING OUT OF EMPLOYER
RETALIATION FOR MAKING NUCLEAR SAFETY COMPLAINTS IS NOT PREEMPTED BY
FEDERAL LAW

   State law is preempted under the Supremacy Clause, U.S. Const. Art.
VI, Cl. 2, in three circumstances.  See Schneidewind v. ANR Pipeline
Co., 485 U.S. 293, 299 (1988);  Fidelity Federal Savings & Loan Ass'n
v. De la Cuesta, 458 U.S. 141, 152-153 (1982);  Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 236 (1947).  In the first situation --
not applicable here -- Congress defines expressly the extent to which
its enactments have preemptive effect.  See, e.g., the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1144(a),
construed in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-97 (1983).
 Second, in the absence of explicit statutory language, state law is
preempted where it regulates conduct in a field that Congress intended
to occupy exclusively.  Such an intent may be inferred from a "scheme
of federal regulation * * * so pervasive as to make reasonable the
inference that Congress left no room for the States to supplement it,"
or where an Act of Congress "'touch(es) a field in which the federal
interest is so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same subject.'" Schneidewind
v. ANR Pipeline Co., 485 U.S. at 299-300 (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. at 230).  Third, state law is preempted to
the extent that it actually conflicts with federal law.  Thus,
preemption is inferred where it is impossible to comply with both
federal and state requirements (see Florida Lime & Avocado Growers,
Inc. v. Paul, 373 U.S. 132, 142-143 (1963)), or where the state law
"stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress" (Hines v. Davidowitz, 312 U.S.
52, 67 (1941)).

   In all preemption inquires, the "ultimate touchstone" is Congress's
purpose in enacting the particular law claimed to have preemptive
effect.  Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724,
747 (1985);  Malone v. White Motor Corp., 435 U.S. 497, 504 (1978);
see also Fidelity Federal Savings & Loan Ass'n v. De la Cuesta, 458
U.S. at 152 ("(t)he pre-emption doctrine * * * requires us to examine
congressional intent");  De Canas v. Bica, 424 U.S. 351, 363 (1976)
(finding no preemption, even in the predominantly federal area of
immigration regulation, where there was "affirmative evidence * * *
that Congress sanctioned concurrent state legislation on the subject
covered by the challenged state law").  Because preemption raises
important and sensitive federalism concerns, it is presumed that
Congress ordinarily does not intend to displace existing state
authority.  /7/ Moreover, "(w)here * * * the field which Congress is
said to have preempted has been traditionally occupied by the States,"
the intent of Congress to supersede state laws must be "clear and
manifest." Jones v. Rath Packing Co., 430 U.S. at 525;  see also
Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485
U.S. 495, 500 (1988) (congressional preemption of state regulation
cannot be accomplished "subtly");  cf. Savage v. Jones, 225 U.S. 501,
533 (1912) (state law is deemed to be in conflict with an Act of
Congress only if the "purpose of the act cannot otherwise be
accomplished -- if its operation within its chosen field else must be
frustrated and its provisions be refused their natural effect").

   Tort law is a field traditionally occupied by the States.  In
Farmer v. United Bhd. of Carpenters, 430 U.S. 290, 304 (1977), the
Court recognized "the legitimate and substantial interest of the State
in protecting its citizens" by allowing intentional infliction of
emotional distress claims, and held that the plaintiff's claim was not
preempted by the National Labor Relations Act.  Since in this case
there is no claim that Congress has expresly preempted state law,
petitioner's intentional infliction of emotional distress action is
preempted only if it is "clear and manifest" that the claim infringes
on a field that Congress has occupied to the exclusion of the States
or if there is an actual conflict between federal and state law such
that allowing petitioner to go forward with her claim will frustrate
the purposes underlying Section 210.

   A. Congress's Occupation Of The Field Of Nuclear Safety Regulation
Does Not Preclude Tort Actions Based On Employer Retaliation For
Making Nuclear Safety Complaints

   Congress has occupied the field of nuclear safety regulation.
However, the courts below correctly rejected General Electric's
contention that petitioner's emotional distress claim is therefore
preempted.  As the district court explained, "while nuclear safety is
of concern in this action it is only tangential to the action itself."
Pet. App. 17a.  This Court's decision in Pacific Gas & Elec. Co. v.
State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190
(1983), makes clear that where state law serves a valid purpose
unrelated to nuclear safety, it is not preempted despite some
relationship to nuclear matters.

   A California law that imposed a moratorium on the certification of
nuclear power plants until a state commission found that there had
been a federally-approved technology for the disposal of nuclear
wastes was at issue in Pacific Gas & Elec. Co.  The Court held that
the law was not preempted.  Based on the legislative history of the
Atomic Energy Act of 1954 and subsequent amendments, which showed that
Congress intended exclusive federal regulation of "the radiological
safety aspects involved in the construction and operation of a nuclear
plant," the Court first concluded that "the Federal Government has
occupied the entire field of nuclear safety concerns, except the
limited powers expressly ceded to the States." 461 U.S. at 212.  At
the same time, the Court emphasized that this exclusive federal
authority over safety matters does not extend to the regulation of
nuclear facilities for economic and other non-safety purposes.  Id. at
205-212;  see, e.g., Atomic Energy Act, 42 U.S.C. 2021(k) ("(n)othing
in this section shall be construed to affect the authority of any
State or local agency to regulate activities for purposes other than
protection against radiation hazards").  Accordingly, the Court held
that whether the California moratorium was preempted depended on
"whether there is a nonsafety rationale" supporting it.  Pacific Gas &
Elec. Co., 461 U.S. at 213.  The Court concluded that there was a
valid economic purpose for the moratorium, since the California
legislature was concerned that nuclear power plants might ultimately
be shut down if acceptable permanent waste disposal methods were not
developed, and upheld the law despite its relationship to nuclear
power.

   Petitioner's claim is not preempted because there is a nonsafety
rationale supporting a state law action for intentional infliction of
emotional distress. Indeed, unlike the California law at issue in
Pacific Gas & Elec. Co., emotional distress actions bear no special
relationship to nuclear matters.  Rather, they are generally available
to victims of intentional harassment, and reflect the state's
"substantial interest in protecting its citizens from the kind of
abuse of which (petitioner) complain(s)." Farmer v. United Bhd. of
Carpenters, 430 U.S. at 302;  see also Dickens v. Puryear, 302 N.C.
437, 276 S.E.2d 325, 331 (1981) (liability arises in North Carolina
when "conduct exceeds all bounds usually tolerated by decent society"
and "causes mental distress of a very serious kind," citing W.
Prosser, Law of Torts Section 12, at 56 (4th ed. 1971));  Woodruff v.
Miller, 64 N.C. App. 364, 307 S.E.2d 176, 178 (1983) (recognizing that
the tort of intentional infliction of emotional distress "provides an
orderly way for the community to disapprove of (extreme and outrageous
conduct) and compensate those victimized by it").  Thus, to an even
greater extent than the moratorium upheld in Pacific Gas & Elec. Co.,
by which the state arguably sought to regulate plant construction for
safety purposes, an emotional distress action has a basis in
non-nuclear social and economic policy that saves it from preemption.
/8/

   The conclusion that petitioner's claim is not preempted on account
of intrusion on the nuclear safety field is reinforced by this Court's
decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).  In
that case the Court held that state tort remedies for radiation-based
injuries, including punitive damages, were available since "Congress
assumed that traditional principles of state tort law would apply with
full force unless they were expressly supplanted." Id. at 255
(emphasis added).  The Court reached that conclusion even though it
recognized that "there is tension between the conclusion that safety
regulation is the exclusive concern of the federal law and the
conclusion that a State may nevertheless award damages based on its
own law of liability." Id. at 256.  The relationship of petitioner's
claim to nuclear safety concerns is certainly no more direct than in
Silkwood, where the plaintiff's decedent was actually harmed by
radiation.  Thus, even though nuclear safety concerns are tangentially
implicated by petitioner's suit, it is not barred since Congress has
not provided that claims such as petitioner's are "expressly
supplanted" by federal law.  /9/ See also Goodyear Atomic Corp. v.
Miller, 486 U.S. 174, 186 (1988) (an increased state workers'
compensation award for injury caused by a safety violation at a
government-owned nuclear facility is "incidental regulatory pressure"
that Congress finds acceptable).

   B. Section 210 Does Not Occupy The Field Of Nuclear Whistleblower
Remedies Or Conflict With Petitioner's Claim

   Although the courts below correctly recognized that petitioner's
claim is not preempted by Congress's occupation of the field of
nuclear safety, they went on to hold the claim preempted by Section
210.  The district court first indicated that it was analyzing
petitioner's claim and Section 210 to determine "'whether there is an
irreconcilable conflict between federal and state standards.'" Pet.
App. 19a (quoting Silkwood, 464 U.S. at 256).  After completing its
conflict analysis, however, the court stated that it found the
"'scheme of federal regulation . . . so pervasive as to make
reasonable the inference that Congress left no room for the States to
supplement it.'" Pet. App. 22a-23a (quoting Pacific Gas & Elec. Co.,
461 U.S. at 204).  Thus, the precise basis for the court's decision --
i.e., whether it is grounded on the theory that Congress has occupied
the field of nuclear whistleblower regulation or on the theory that
petitioner's claim actually conflicts with Section 210 -- is not
entirely clear.  However, an intent to preempt is not properly
inferred under either theory.

   1. As an initial matter, it would be odd to conclude that nuclear
whistleblowing, by itself, is a "field." Labor relations between
nuclear employers and their employees might be a "field" that Congress
would choose to occupy (but has not), as might issues relating
generally to retaliation by employers against their employees for
blowing the whistle on unsafe or illegal activities.  But Section 210
is merely a single statutory provision granting a remedy to employees
in one industry for one type of discrimination by employers.  /10/
Section 210 is not a code of conduct governing nuclear labor relations
comprehensively or a code governing whistleblowing generally.  /11/

   In any event, the mere existence of a federal regulatory or
enforcement scheme -- even a rather comprehensive one -- does not
imply preemption of state remedies.  As this Court has noted,
"(u)ndoubtedly, every subject that merits congressional legislation
is, by definition, a subject of national concern.  That cannot mean,
however, that every federal statute ousts all related state law.  * *
* Instead, we must look for special features warranting preemption."
Hillsborough County v. Automated Medical Labs., 471 U.S. at 719
(emphasis added).  Thus, even where Congress has established a
comprehensive regulatory or enforcement scheme, preemptive effect may
not be inferred without specific indicia of legislative intent to
exclude state activity in that field.  See id. at 717 ("merely because
the federal provisions (a)re sufficiently comprehensive to meet the
need identified by Congress d(oes) not mean that States and localities
(a)re barred from identifying additional needs or imposing further
requirements in the field");  De Canas v. Bica, 424 U.S. at 359 (the
"scope and detail" of the Immigration and Nationality Act does not
evidence preemptive intent because the "comprehensiveness of
legislation governing entry and stay of aliens (i)s to be expected in
light of the nature and complexity of the subject");  New York Dep't
of Social Services v. Dublino, 413 U.S. 405, 415 (1973) ("(t)he
subjects of modern social and regulatory legislation often by their
very nature require intricate and complex responses from the Congress,
but without Congress necessarily intending its enactment as the
exclusive means of meeting the problem");  cf. Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 54 (1987) (preemptive effect of ERISA's
"comprehensive" civil enforcement scheme is "fully confirmed" by its
legislative history).  /12/

   An examination of the language and legislative history of Section
210 reveals no "special features" warranting a finding of preemptive
intent.  The statute simply prohibits employment discrimination
against employees who make nuclear safety complaints and provides an
administrative mechanism by which that prohibition can be enforced.
Although its provisions are fairly detailed and comprehensive, the
statute nowhere prohibits other remedies for the same conduct, or
mandates procedures or remedies that are inherently inconsistent with
other forms of relief.  Moreover, as this Court recently observed,
"(o)rdinarily, state causes of action are not preempted solely because
they impose liability over and above that authorized by federal law."
California v. ARC America Corp., 109 S. Ct. at 1667 (holding that
indirect purchasers may sue under state law to recover overcharges
resulting from unlawful price-fixing, even though federal antitrust
laws allow only direct purchasers to recover).  Therefore, the fact
that a federal statute provides limited remedies does not require
preemption, unless there is a "clear purpose of Congress" to that
effect.  See ibid.  /13/ Thus, the fact that Congress enacted Section
210 does not support the conclusion that it has "occup(ied) an entire
field of regulation, leaving no room for the States to supplement
federal law." Northwest Cent. Pipeline Corp. v. State Corp. Comm'n,
109 S. Ct. 1262, 1273 (1989).

   2. The district court found preemption based on its analysis of
three provisions of Section 210 -- its bar to recovery by employees
who deliberately violate federal nuclear safety requirements, the
absence of any express provision for exemplary damage awards in the
administrative proceedings, and the time limits for filing and
adjudicating complaints.  However, those limitations only purport to
govern complaints brought under Section 210.  Since Congress's
decision not to provide a particular remedy typically reflects only
the federal policy objectives addressed by the statute in question,
such policy choices do not generally imply an intent to preclude
States from invoking their own remedies.  See Silkwood v. Kerr-McGee
Corp., 464 U.S. at 255;  United Constr. Workers v. Laburnum Constr.
Corp., 347 U.S. 656, 663-666 (1954).

   Furthermore, a detailed analysis of the three provisions fails to
indicate any conflict warranting preemption of petitioner's claim.
Section 210(g) provides that "Subsection (a) of this section shall not
apply" where an employee deliberately causes a nuclear safety
violation.  Thus, Section 210(g) specifically limits its applicability
to the remedy provided by Section 210(a), and does not suggest that it
bars state-law actions.  Moreover, any federal interest in prohibiting
recovery by whistleblowers who participated in deliberate safety
violations would be served by preempting state law only to the extent
that it allows recovery by such violators.  See Boyle v. United
Technologies Corp., 108 S. Ct. 2510, 2516 (1988) (observing that
federal law preempts an entire body of state law only "where the
federal interest requires a uniform rule" applicable to the subject
area).  Accordingly, Section 210(g), at most, would allow employers to
assert a federal law defense against state law claims by employees
excluded from Section 210's protection.  See Norris v. Lumbermen's
Mut. Casualty Co., 881 F.2d 1144, 1150 (1st Cir. 1989);  Gaballah v.
PG & E, 711 F. Supp. 988, 990 (N.D. Cal. 1989).  /14/

   Nor does the absence of authorization for the Secretary to award
exemplary damages under Section 210 imply legislative intent to bar
state actions that permit such awards.  Section 210(d) authorizes
district courts to award exemplary damages in enforcement proceedings;
 thus, contrary to the district court, Section 210 does not reflect
"an informed judgment that in no circumstances should a nuclear
whistle() blower receive punitive damages when fired or discriminated
against because of his or her safety complaints." Pet. App. 22a
(emphasis added).  In addition, since "(o)rdinarily, state causes of
action are not pre-empted solely because they impose liability over
and above that authorized by federal law" (California v. ARC America
Corp., 109 S. Ct. at 1667), there is no warrant for preemption merely
because Congress did not authorize the Secretary to award exemplary
damages.  See Silkwood, (allowing exemplary damage awards in state
actions for injury caused by exposure to radioactive materials).

   Likewise, the expeditious time frames in Section 210 primarily
indicate only that Congress wanted federal whistleblower complaints to
be filed and resolved quickly.  To be sure, the 30-day filing
requirement also helps to ensure, in some cases, that the government
is aware of safety violations.  /15/ Of course, that notification
purpose is implicated only where an employer retaliates against an
employee who has complained to his employer or has indicated his
intention to alert federal authorities, but who has not yet blown the
whistle to the federal government;  if the retaliation is in response
to whistleblowing to federal authorities, then they are already aware
of the safety problem whether or not the employee files a
discrimination action under Section 210.  In any event, nothing about
the 30-day time limit is incompatible with state actions.  In six
other whistleblower protection statutes enacted in the 1970s or early
1980s -- the Toxic Substances Control Act (TSCA), 15 U.S.C. 2622;  the
Federal Water Pollution Control Act Amendments of 1972 (FWPCA), 33
U.S.C. 1367;  the Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-9(i);
 the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C.
6971;  the Clean Air Act (CAA), 42 U.S.C. 7622;  and the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
(CERCLA), 42 U.S.C. 9610 -- Congress also set a 30-day time limit for
filing complaints, /16/ although each of those other provisions exist
in the context of a cooperative federal-state program that expressly
permits concurrent state regulation.  See TSCA, 15 U.S.C. 2617(a);
FWPCA, 33 U.S.C. 1370;  SDWA, 42 U.S.C. 300g-3(e);  RCRA, 42 U.S.C.
6929;  CAA, 42 U.S.C. 7416;  CERCLA, 42 U.S.C. 9614(a).  Thus, it is
reasonable to assume that Congress intended Section 210 to supplement,
not supplant, any state remedies that might exist.  See Gaballah v. PG
& E, 711 F. Supp. at 990.

   Moreover, each of these six other whistleblower statutes denies
coverage to deliberate violators of environmental statutes, /17/ and
only two expressly authorize the Secretary to award exemplary damages.
 /18/ (In fact, the whistleblower provision of the Clean Air Act is
virtually identical to Section 210.) The fact that state regulation is
permitted under those other statutes shows that the three
subprovisions of Section 210 on which the district court relied do not
necessarily conflict with concurrent state regulation or evidence an
intent by Congress to occupy the field.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   CHRISTOPHER J. WRIGHT

      Assistant to the Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   STEVEN J. MANDEL

      Counsel for Appellate Litigation

   JEFFREY A. HENNEMUTH

      Attorney Department of Labor

   MARCH 1990

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

   /2/ Technically, petitioner was placed on layoff status on July 30,
and thus retained certain benefits and recall rights.  See Br. in Opp.
2 n.1;  English v. Whitfield, 858 F.2d at 960 n.1.  As a practical
matter, however, she was no longer employed by General Electric after
July 30, 1984.

   /3/ If an employee believes that he has been discharged or
otherwise discriminated against in violation of Section 210(a), he may
file a complaint with the Secretary of Labor within 30 days after the
violation occurs.  42 U.S.C. 5851(b)(1).  The Secretary investigates
the alleged violation, holds a public hearing, and, within 90 days of
receiving the complaint, issues an order that either provides or
denies relief.  42 U.S.C. 5851(b)(2)(A).  If a violation is found, the
Secretary may order reinstatement with back pay, award compensatory
damages, and require the violator to pay the employee's costs and
attorney's fees.  42 U.S.C. 5851(b)(2)(B).  Any person adversely
affected by an order of the Secretary may seek review in the federal
court of appeals, and either the Secretary or the complainant may
obtain enforcement of the Secretary's orders in federal district
court.  42 U.S.C. 5851(c)-(e).

   /4/ The statute does, however, provide for the recovery of
exemplary damages in civil actions brought by the Secretary to enforce
her remedial orders in district court.  See 42 U.S.C. 5851(d)
(district courts "have jurisdiction to grant all appropriate relief
including, but not limited to, injunctive relief, compensatory, and
exemplary damages").

   /5/ The court alternatively held that petitioner had failed to
state a cause of action for wrongful discharge because North Carolina
law does not recognize the tort of wrongful discharge absent a
specific duration employment contract, the giving of additional
consideration for protected tenure, or a discharge for refusing to
give perjured testimony.  The court concluded that petitioner had
stated a valid state law claim for intentional infliction of emotional
distress.  Pet. App. 24a-27a.

   /6/ Petitioner did not appeal the dismissal of her wrongful
discharge claim, and that claim is accordingly no longer at issue.

   /7/ It is axiomatic that, "under our federal system, the States
possess sovereignty concurrent with that of the Federal Government,
subject only to limitations imposed by the Supremacy Clause." Tafflin
v. Levitt, 110 S. Ct. 792, 795 (1990).

   /8/ Because petitioner did not appeal from the dismissal of her
wrongful discharge claim, whether such a claim would be preempted by
Section 210 is not at issue.  The arguments against preemption are
less apparent in the context of a wrongful discharge complaint based
on the public policy evidenced in federal nuclear safety laws since
nuclear safety is a matter of exclusively federal concern.  See
Pacific Gas & Elec. Co., 461 U.S. at 213 ("(a) state moratorium on
nuclear construction grounded in safety concerns falls squarely within
the prohibited field");  see also Schneidewind v. ANR Pipeline Co.,
485 U.S. at 309 (state law preempted "whose central purpose is to
regulate matters that Congress intended * * * to regulate").  But that
difference does not command a different result.  Even though
protection of whistleblower activity implicates nuclear safety
concerns, a state tort action is not preempted under Pacific Gas &
Elec. Co. if it also effectuates a public policy distinct from nuclear
safety.  While, as we have discussed, the nonsafety rationale for an
emotional distress claim is manifest, similar policies underlie any
other tort or contract remedies for wrongfully discharged employees.
See, e.g., Norris v. Lumbermen's Mut. Casualty Co., 881 F.2d 1144,
1152-1153 (1st Cir. 1989) (state interest in assuring good faith and
fair dealing in commercial transactions, including employment
contracts, and in promoting a general policy against termination of
at-will employees in violation of a mandated public policy);  Stokes
v. Bechtel N. Am. Power Corp., 614 F. Supp. 732, 741-742 (N.D. Cal.
1985) (state policy of "ensuring the continued employment and job
security of its citizens * * * and in advancing the state's economic
productivity through the promotion of the nuclear industry");  but see
Masters v. Daniel Int'l Corp., No. 88-1345 (10th Cir. Feb. 6, 1990),
slip op. 4 (Section 210 "preempts any state law claim for wrongful
termination for reporting safety violations under the Act").

   /9/ The Silkwood Court, in upholding tort remedies for
radiation-related injuries, found "added significance" in the absence
of any federal remedy for such injuries.  See 464 U.S. at 251.  But
that was not the basis for the Court's decision.  We agree with the
First Circuit that, absent a clear expression of congressional intent,
there is "no good reason for barring state remedies to whistle blowers
but allowing punitive damages (for injuries) * * * that might not have
occurred if the whistleblower's complaints had been investigated." See
Norris v. Lumbermen's Mut. Casualty Co., 881 F.2d at 1151;  see also
Gaballah v. PG & E, 711 F. Supp. 988, 990 (N.D. Cal. 1989) (finding
Silkwood persuasive in the whistleblower context);  Wheeler v.
Caterpillar Tractor Co., 108 Ill. 2d 502, 485 N.E.2d 372, 376 (1985)
(same).

   /10/ It makes no difference that Section 210 bears some
relationship to the nuclear safety field.  As we have shown, and as
the courts below concluded, petitioner's claim is not preempted on
account of any infringement on the field of nuclear safety regulation.
 Moreover, the Occupational Safety and Health Act of 1970, 29 U.S.C.
651 et seq., preempts state regulation of workplace safety and health
with respect to matters governed by a specific federal standard, but
does not preempt state law remedies for employees who suffer
employment discrimination on account of their having filed complaints,
testified, or otherwise exercised rights under the Act, even though
the Act itself (29 U.S.C. 660(c)) provides a federal remedy for the
same employer conduct.  See Lepore v. National Tool & Mfg. Co., 224
N.J. Super. 463, 540 A.2d 1296 (1988), aff'd, 115 N.J. 226, 557 A.2d
1371, cert. denied, 110 S. Ct. 366 (1989);  accord Kilpatrick v.
Delaware County Soceity for Prevention of Cruelty to Animals, 632 F.
Supp. 542, 547-550 (E.D. Pa. 1986).

   /11/ In commenting on a bill that would provide comprehensive
federal whistleblowing remedies, the Department of Labor recently
recommended that Congress expressly preempt state remedies.  Although
General Electric finds it "inexplicabl(e)" that the government does
not think that Section 210 preempts state law given its position on
the pending legislation (see Supp. Br. in Opp. 3-4), the Solicitor of
Labor explained that the Labor Department recommended preemption of
state whistleblower remedies as part of "the proper balance to strike
in the context of a uniform law" that "would apply to many different
industries and situations," as distinguished from the single-industry
approach embodied in existing law.  See Statement of Robert P. Davis,
Solicitor of Labor, before the Subcomm. on Labor-Management Relations,
House Comm. on Education and Labor, at 1 (Nov. 16, 1989).  Moreover,
an obvious difference exists between advocating policies in regard to
pending legislation and interpreting the intent behind existing laws.
If anything, the Labor Department's support for express preemptive
language in the proposed whistleblower legislation suggests its
recognition that existing law does not preempt state remedies.

   /12/ Respondent's reliance (Br. in Opp. 14) on decisions construing
the preemptive effect of the National Labor Relations Act (NLRA), 29
U.S.C. 151 et seq., is misplaced.  As an initial matter, that statute
comprehensively deals with labor-management relations from the
inception of organizational activity through the negotiation of a
collective bargaining agreement.  Moreover, special factors support
the conclusion that preemption of state labor relations law is
warranted -- specifically, Congress's perception that the NLRA was
needed because state legislatures and courts were unable to provide an
informed and coherent labor policy.  See Motor Coach Employees v.
Lockridge, 403 U.S. 274, 286 (1971).  In addition, even though the
drafters of Section 210 patterned it after Section 8(a)(4) of the
NLRA, 29 U.S.C. 158(a)(4) (see S. Rep. No. 848, 95th Cong., 2d Sess.
29 (1978)), they also based it (see ibid.) on the corresponding
provision of the Federal Coal Mine Health and Safety Act of 1969, Pub.
L. No. 91-173, Section 110(b)(1), 83 Stat. 758 -- in which Congress
expressly declined to preempt state laws in the same field.  See
Section 506, 83 Stat. 803.  Thus, in Congress's view, a whistleblower
remedy, by itself, does not require preemption.

   /13/ The legislative history of Section 210 reveals no "clear
purpose" to supplant state causes of action that might afford broader
relief.  Indeed, the only explanation for any of the statute's
remedial limitations is the responsible congressional committee's
statement that employees who deliberately violate nuclear safety
requirements would be denied protection under Section 210(g) "(i)n
order to avoid abuse of the protection afforded under this section."
S. Rep. No. 848, supra, at 30 (emphasis added).

   /14/ Although the Secretary of Labor has not yet addressed the
issue in the context of an actual whistleblower complaint, we believe
that the courts below misinterpreted the scope of subsection (g).  The
purpose of Section 210 would be defeated if, as the district court
contended, its protection does not extend to an employee who "has
violated a separate and distinct (nuclear safety) requirement," but
has "neither contributed to nor caused the potential safety violation
which he reported." Pet. App. 20a.  It is more sensible to construe
subsection (g) as barring relief only for those employees who claim
protection because they have "blown the whistle" on the very safety
violation that they have caused.  Moreover, in our view Section 210(g)
is essentially a strict version of the causation element inherent in
any anti-discrimination law.  See Burdine v. Texas Dep't of Community
Affairs, 450 U.S. 248 (1981).  Thus, it serves to bar a remedy under
the federal statute where it is plausible that the employer penalized
the employee for his safety violation, not for his whistleblowing.

   /15/ Section 210(b) requires the Secretary of Labor to notify the
NRC "(u)pon receipt of * * * a complaint" under the statute.  Based on
that provision, the two agencies have entered into a memorandum of
understanding in which they agreed "to cooperate with each other to
the fullest extent possible" in all cases arising under Section 210.
47 Fed. Reg. 54,585 (1982).  As a result, the NRC is informed of any
allegations of whistleblower discrimination, thus enabling that agency
to address the underlying safety complaints and to impose its own
sanctions on employers who retaliate against whistleblowing employees.
 See, e.g., 10 C.F.R. 30.7.  In this case, the NRC imposed a $20,000
fine on General Electric as a result of its investigation of
petitioner's allegations.  Pet. App. 57a.

   /16/ See TSCA, 15 U.S.C. 2622(b)(1);  FWPCA, 33 U.S.C. 1367(b);
SDWA, 42 U.S.C. 300j-9(i)(2)(A);  RCRA, 42 U.S.C. 6971(b);  CAA, 42
U.S.C. 7622(b)(1);  CERCLA, 42 U.S.C. 9610(b).

   /17/ See TSCA, 15 U.S.C. 2622(e);  FWPCA, 33 U.S.C. 1367(d);  SDWA,
42 U.S.C. 300j-9(i)(6);  RCRA, 42 U.S.C. 6971(d);  CAA, 42 U.S.C.
7622(g);  CERCLA, 42 U.S.C. 9610(d).

   /18/ TSCA, 15 U.S.C. 2622(b)(2)(B);  SDWA, 42 U.S.C.
300j-9(i)(2)(B)(ii)(IV).