No. 98-


In The
OCTOBER TERM, 1998
BERTRAM ROBERTS and HANNI ROBERTS,
Petitioners,
v.
 
FLORIDA POWER & LIGHT COMPANY,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
 
PETITION FOR A WRIT OF CERTIORARI

Brian Wolfman                                                             Ervin A. Gonzalez
(Counsel of Record)                                                      Raymond W. Valori
Alan B. Morrison                                                           Robles & Gonzalez, P.A
David C. Vladeck
Amanda Frost
Public Citizen Litigation Group 
Attorneys for Petitioners

October 17, 1998



QUESTION PRESENTED
 
There is a substantial overlap between the question presented in this petition and the first question presented in the petition for a writ of certiorari in El Paso Natural Gas Company v. Neztsosie, No. 98-6 (discussed infra at 25), which was granted by this Court on October 13, 1998. The question presented in this case is:

In an action to recover damages for injuries arising from a worker's exposure to radiation at a nuclear power plant, do the Price-Anderson Act Amendments to the Atomic Energy Act preempt standards of care established by state tort law?

OPINIONS BELOW
 
The opinion of the United States Court of Appeals for the Eleventh Circuit is reported at 146 F.3d 1305 (11th Cir. 1998), and is reproduced in the appendix at Pet. App. 1a. The opinion of the United States District Court for the Southern District of Florida is unreported and is reproduced in the appendix at Pet. App. 8a.
JURISDICTION
 
The judgment of the court of appeals was entered on July 22, 1998. This Court has jurisdiction under 28 U.S.C. 1254(1).
STATUTES INVOLVED
 
42 U.S.C. 2014(hh) provides:

                The term "public liability action," as used in section 2210 of this title, means any suit asserting public liability. A public
                liability action shall be deemed to be an action arising under section 2210 of this title, and the substantive rules for
                decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless
                such law is inconsistent with the provisions of such section.

42 U.S.C. 2210 is set forth in full in the appendix at Pet. App. 16a.

INTRODUCTION

The Eleventh Circuit below held that federal law completely preempts state-law standards of care in a tort action involving exposure to nuclear radiation, and that an injured person may recover only if the defendant violated the federal maximum radiation emission standards. This preemption ruling cannot be reconciled with 42 U.S.C. 2014(hh), a provision of the Price-Anderson Act that specifically adopts state-law "substantive rules for decision" in actions alleging injuries from nuclear radiation.

Although there is some conflict in lower court authority, see infra note 2, petitioners seek review principally on the ground that three federal courts of appeal have ignored the plain language of section 2014(hh) in favor of general concerns about encroachment on federal interests, an expansive approach to preemption that has been rejected repeatedly by this Court. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996); Freightliner Corp. v. Myrick, 514 U.S. 280 (1995); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985) (rejecting preemption on basis of general federal regulatory controls because Court has traditionally "look[ed] for special features warranting preemption"). Indeed, this Court has consistently repudiated broad claims of preemption in the context involved here--compensation of nuclear power plant workers. See English v. General Electric Co., 496 U.S. 72 (1990); Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).

Recent cases demonstrate the importance of review by this Court, even in the absence of conflict among the federal circuits. See Lexecon v. Milberg Weiss Berhsad Hynes & Lerach, 118 S. Ct. 956 (1998) (reversing unanimous views of federal appellate and trial courts concerning multi-district litigation statute because such views were at odds with statutory text). Particularly in the context of preemption of state-law damages actions, the Court has not hesitated to grant review and reverse the prevailing view in the lower federal courts. See, e.g., Medtronic, 518 U.S. 470 (no preemption of plaintiffs' state tort claims based on faulty medical devices, disagreeing in whole or in part with views of eight circuit courts); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 508 n.2 (1992) (state tort claims by cigarette smoker held generally not preempted despite unanimity of contrary federal circuit court authority); see Lewis v. Brunswick Corp., 118 S. Ct. 439 (1997) (granting plaintiff's petition for writ of certiorari in boat safety tort case despite unanimity of federal authority favoring preemption).

The need for review is greater here than in the ordinary preemption case because the state courts cannot be heard on the question presented. Under the Price-Anderson Act, even though actions for damages proceed under state substantive law, 42 U.S.C. 2014(hh), federal courts have original and removal jurisdiction regardless of the amount in controversy. 42 U.S.C. 2210(n)(2). In recent years, although the federal circuit courts have been finding broad preemption of state-law tort claims, the state appellate courts have often been more sensitive to the prerogatives of state law and provided a counterbalance prior to this Court's review. See Cipollone, 505 U.S. at 508 n.3; Moore v. Brunswick Bowling & Billiard Corp. 889 S.W.2d 246 (Tex. 1994) (rejecting preemption in boat safety case prior to grant of certiorari in Lewis v. Brunswick Corp., supra). The absence of this potential counterbalance emphasizes the need for review now, since further percolation in the lower courts is not likely to shed additional light on the important question presented here.

STATEMENT OF THE CASE
 
Petitioner Bertram Roberts suffers from terminal cancer that he claims was caused by on-the-job radiation exposure at a nuclear power plant operated by the respondent Florida Power and Light Company, where Mr. Roberts was employed as an electrician by respondent's contractor, Bechtel Corporation. Mr. Roberts, along with his wife, petitioner Hanni Roberts, sued respondent seeking damages for his injuries. The lower courts sustained respondent's motion to dismiss on the ground that petitioners' suit is preempted by the Price-Anderson Act ("PAA"), because petitioners did not claim that radiation emissions at the plant exceeded the maximum "dose" permitted by federal law.

The history and structure of the PAA are critical to understanding how the court of appeals erred in its preemption ruling. Therefore, Part A below considers that legislation in detail. Part B addresses the facts and the district court proceedings, and Part C reviews the decision of the court of appeals.

A. The Price-Anderson Act.

1. Enactment and 1966 Amendments.

The PAA was enacted in 1957 as an amendment to the Atomic Energy Act of 1954 to encourage private development of nuclear power plants. To overcome private sector reluctance to provide atomic power because of the potential for catastrophic accidents and the unavailability of private liability insurance, the PAA provided a system of compensation for injuries resulting from nuclear accidents. S. Rep. No. 218, 100th Cong., 1st Sess. 2 (1987), reprinted in 1988 U.S.C.C.A.N. 1477; H.R. Rep. No. 104, 100th Cong., 1st Sess., pt. 1 at 4 (1987). Thus, the PAA established a system of comprehensive liability insurance for providers of nuclear energy under contract or license with the government. S. Rep. No. 70, 100th Cong., 1st Sess. 13-14 (1987), reprinted in 1988 U.S.C.C.A.N. 1426-27; see generally Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 64-67 (1978).

The 1957 law had three features. First, it limited the aggregate liability of private nuclear operators under contract or license with the federal government. Second, it channeled so-called "public liability" actions--those arising from nuclear accidents--by providing that any person who might be held liable for an accident would be indemnified by the federal government. Third, it required that, in cases where claims for public liability exceeded the required level of private insurance, the federal government would compensate the person held liable up to the Act's aggregate liability limit. S. Rep. No. 218, supra at 2, reprinted in 1988 U.S.C.C.A.N. 1477.

In 1966, Congress amended the PAA out of concern that the public be quickly and adequately compensated for injuries resulting from a nuclear accident by, among other things, providing for development of a compensation and distribution plan in the event that claims exceeded the Act's aggregate liability limits. S. Rep. No. 1605, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 3201-03. The amendments also sought to simplify the system for compensation of public liability claims and to ensure uniform treatment of claims arising out of a single nuclear accident. Thus, under the "waiver-of-defenses" provision, 42 U.S.C. 2210(n)(1), defendants in cases involving a large nuclear accident, known as an "extraordinary nuclear occurrence" ("ENO"), could be required to waive any defenses related to (1) the plaintiff's conduct or the defendant's lack of fault, (2) government or charitable immunity, and (3) the statute of limitations, if the suit were filed within three years of the date the plaintiff became aware of his injuries or damages, but no more than ten years after the date of the nuclear incident. See S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3201-02; see also S. Rep. No. 218, supra at 2, reprinted in 1988 U.S.C.C.A.N. 1477-78. In essence, the waiver-of-defenses provision required an ENO victim "to prove only that he or his property was damaged and that such damage was caused by the nuclear incident." S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3209. As a result, for ENO claims, all jurisdictions would apply legal principles similar to strict liability. Id. at 3207.(1)

The 1966 amendments also created federal jurisdiction for claims involving an ENO in the district where the accident occurred. This jurisdictional provision allowed the defendants to remove actions pending in state courts and to transfer actions pending in other federal courts to the federal district court having venue. This provision thus allowed all claims arising out of a single serious nuclear accident (ENO) to be consolidated in one court. Id. at 3215.

2. The 1988 Amendments.

In 1988, Congress passed another set of PAA amendments, which are important to an understanding of this case. In pettitioners' view, the 1988 law underscores the error committed by the Eleventh Circuit because it explicitly adopts state substantive law in cases involving personal injury from nuclear radiation. On the other hand, respondent contends that the 1988 amendments preempt state-law duties of care in such actions. Indeed, respondent conceded in its court of appeals brief that had petitioners' claims arisen prior to 1988, there would be no preemption because "persons claiming injury from radiation could file state law causes of action in state or federal courts, and could recover under any theory of liability available in any of the 50 states." Brief for Defendant-Appellee Florida Power & Light, at 16, in Roberts v. Florida Power & Light Co., No. 97-5195 (11th Cir., dated Apr. 2, 1998); see also Pet. App. 6a n.5 (suggesting dispositive effect of 1988 amendments).

As with the 1966 amendments, the main thrust of the 1988 legislation was to improve the compensation system for victims of nuclear exposure, not to restrict or eliminate liability for power plant operators. Thus, the 1988 law extended the indemnification system for thirty years; increased the aggregate indemnification level; created an expedited mechanism to allow congressional action for additional compensation; and broadened the scope of the public compensation system to include nuclear waste disposal activities and incidents involving stolen nuclear materials. S. Rep. No. 70, supra at 12, reprinted in 1988 U.S.C.A.A.N. 1425. The amendments also clarified that lessors of nuclear facilities could not be held liable for nuclear accidents occurring in the facility and barred awards of punitive damages where the federal government would be liable for them under an indemnification agreement. H.R. Rep. No. 104, supra, pt. 1 at 19. This latter provision was a direct response to the Court's decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), which held that the Atomic Energy Act, as informed by the PAA, does not preempt an award of punitive damages under state tort law arising out of radiation exposure from a nuclear power plant.

The 1988 amendments also included two responses to litigation over the Three Mile Island incident. S. Rep. No. 218, supra at 13, reprinted in 1988 U.S.C.C.A.N. 1488. All of the Three Mile Island suits were originally consolidated in the District Court for the Middle District of Pennsylvania, where the accident occurred. After the Nuclear Regulatory Commission ("NRC") determined that the accident was not an ENO, however, the claims were dismissed for lack of subject matter jurisdiction. Id. (citing Stibitz v. GPU, 746 F.2d 993 (3d Cir. 1984), cert. denied, 469 U.S. 1214 (1985)). To ensure that federal courts could hear all public liability claims, not just those involving ENOs, the 1988 amendments broadened the grant of federal jurisdiction to cover all nuclear incidents. See H.R. Rep. No. 104, supra, pt. 1 at 18. To do so, the amendment simply replaced "extraordinary nuclear occurrence" with "nuclear incident" in the PAA's jurisdictional provision, 42 U.S.C. 2210(n)(2). Id. at 50.

The amendments also defined the term "public liability action," which was not defined in the 1966 amendment granting federal jurisdiction over ENO claims. That definition included an anti-preemption clause, which specifically adopts state substantive law, presumably to ensure that the grant of federal jurisdiction would not suggest that the courts develop a body of federal substantive law. Thus, in a public liability action "the substantive rules for decision ... shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of" 42 U.S.C. 2210. See 42 U.S.C. 2014(hh).

The "provisions" of section 2210, in turn, concern a variety of issues such as indemnification, collection of fees from NRC licensees, and regulatory reports to Congress. See 42 U.S.C. 2210 (reproduced at Pet. App. 16a-47a). With the exception of section 2210(s)--the provision barring punitive damages in certain circumstances--the 1988 amendments did not limit the level of compensation to be awarded in a public liability action, much less address the substantive standard of care in such an action.

B. Factual Background and District Court Proceedings.

This suit seeks to recover money damages for injuries suffered by petitioner Bertram Roberts while working at the Turkey Point Nuclear Power Plant operated by respondent. Eleventh Circuit Record Excerpts ("RE") 9-10. Mr. Roberts alleges that his injuries were caused by radiation to which he was exposed from 1966 through 1989. RE 9. In January 1993, Mr. Roberts was diagnosed with myelogenous leukemia, a type of cancer linked to radiation exposure. RE 9-10.

Petitioners filed this case on October 10, 1995, in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida. RE Tab 2. Petitioners contended that respondent breached a duty of reasonable care owed to Mr. Roberts and his fellow workers at Turkey Point under Florida law. RE 10-11. Specifically, Mr. Roberts alleged that respondent unreasonably exposed him to more radiation than was necessary, that respondent did not help him take precautionary steps, such as providing appropriate protective clothing, and that respondent did not warn him of the danger of working at the plant. RE 11-12. The complaint also contained a strict liability claim, alleging that working with nuclear materials is an abnormally hazardous activity, giving rise to respondent's liability for Mr. Roberts's injuries. RE 13-14. Mr. Roberts's wife, petitioner Hanni Roberts, sought recovery for loss of consortium. RE 15.

Because public liability actions such as this one "arise under" federal law, see 42 U.S.C. 2014(hh), 2210(n)(2), respondent removed the case to the Southern District of Florida pursuant to 28 U.S.C. 1441(a) and 1331. Thereafter, respondent moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the PAA preempts any duty of care defined by state tort law for operators of nuclear power plants. RE Tab 3. Respondent relied specifically on 42 U.S.C. 2014(hh), even though that provision states that the substantive law in a public liability action "shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of [section 2210]." Respondent argued that any duty of care defined by state tort law for nuclear facility operators would be inconsistent with radiation dose limits promulgated by the NRC and that, therefore, those limits preempt state standards of care. Respondent did not explain, however, how the Florida common-law duties on which petitioners rely are inconsistent with any of the specific provisions of section 2210.

On June 9, 1997, the district court granted respondent's motion to dismiss. Pet. App. 8a. The court held that federal nuclear safety standards preempt the duty of care defined by state tort law, and that, therefore, petitioners did not state a valid claim because they did not contend that respondent had exceeded the federal radiation dose limits. Pet. App. 13a-15a. The court relied heavily on O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir.), cert. denied, 512 U.S. 1222 (1994), which had come to the same conclusion. The district court did not, however, point to any provision of the Atomic Energy Act, or its PAA amendments, that deals with, let alone expressly preempts, state-law standards of care in public liability actions.

C. The Eleventh Circuit's Decision.

The Court of Appeals for the Eleventh Circuit affirmed per curiam. Pet. App. 1a. The court began by briefly recounting the purpose and history of the Atomic Energy Act and the PAA. Pet. App. 2a-3a. It then correctly identified petitioners' principal basis for reversal of the district court's decision: that 42 U.S.C. 2014(hh) specifically preserves state-law rules for decision in nuclear injury cases, including the state-law duty of care. Pet. App. 5a. The court did not, however, answer this statutory argument, but simply stated that the federal government's exclusive role in regulating the safety of nuclear technology extended to actions for damages as well as to state legislative efforts, citing this Court's decisions in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983), and Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). See Pet. App. 5a-6a. The court relied on Silkwood despite its holding that an award of punitive damages in a wrongful death action arising from nuclear plant radiation was not preempted by the Atomic Energy Act.

Ignoring section 2014(hh)'s express adoption of state substantive law, the court of appeals stated that "federal regulations must provide the sole measure of the defendants' duty in a public liability action" because of the federal government's pervasive role in nuclear regulation. Pet. App. 6a (quoting O'Conner, 13 F.3d at 1105). The court of appeals concluded that, unless petitioners could prove that respondent exposed Mr. Roberts to radiation in violation of the maximum federal limits, petitioners' claims under Florida law were preempted. Pet. App. 7a.

REASONS FOR GRANTING THE WRIT

Review should be granted because the Eleventh Circuit, joining the Seventh and Third Circuits, see O'Conner, 13 F.3d 1090; In re TMI Litigation Cases Consolidated II, 940 F.2d 832, 858-66 (3d Cir. 1991), has seriously misread the Price-Anderson Act and particularly its provision defining "public liability action," which specifically preserves, rather than preempts, state-law duties of care. Compounding this grievously wrong construction of the PAA is the court of appeals' misunderstanding of Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), which reached a conclusion at odds with the decision below.

Review is also warranted because of the manifest importance of the question presented. If the decisions of the courts of appeals are permitted to stand, both atomic plant workers and people living in surrounding communities will be deprived of compensation for their radiation-related injuries.(2)

A. THE DECISION BELOW CONFLICTS WITH THE PRICE-ANDERSON ACT AND THIS COURT'S DECISION IN SILKWOOD.

1. Because the "touchstone" of any preemption analysis is congressional intent, as reflected in the language that Congress enacts, Cipollone, 505 U.S. at 516, we turn first to the relevant statutory text:

                The term "public liability action," as used in section 2210 of this title, means any suit asserting public liability. A public
                liability action shall be deemed to be an action arising under section 2210 of this title, and the substantive rules for
                decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs,
                unless such law is inconsistent with the provisions of such section.

42 U.S.C. 2014(hh) (emphasis added).

The most striking feature of section 2014(hh) is that, in the main, it is an anti-preemption provision, under which state law provides "the substantive rules for decision" except where it is "inconsistent" with 42 U.S.C. 2210. Cf. California Fed'l Savings & Loan Ass'n v. Guerra, 479 U.S. 272, 281-82 (1987) (analyzing similar anti-preemption provision). Therefore, to understand the preemptive scope of the PAA, it is necessary to examine section 2210 to determine the precise subjects that it affects.

Generally speaking, section 2210 establishes the PAA's insurance and indemnification scheme, which ensures that funds will be available to compensate victims of a nuclear incident. There are a few provisions of section 2210--none of which is applicable here--in which Congress altered state tort law: the limitation on aggregate public liability, 42 U.S.C. 2210(e); the provision requiring NRC licensees to waive any issue or defense based on state statutes of limitations, on defendant fault or plaintiff conduct, and on government or charitable immunity, 42 U.S.C. 2210(n)(1); the limitation on the liability of nuclear facility lessors, 42 U.S.C. 2210(r); and the bar on punitive damages where the United States is obligated to make payments under an indemnity agreement, 42 U.S.C. 2210(s). Other than these provisions, no elements of state tort law are mentioned in section 2210. See El Paso Natural Gas Co. v. Neztsosie, 136 F.3d 610, 617 (9th Cir. 1998) (recognizing narrow, targeted approach of section 2210), cert. granted, No. 98-6 (U.S.), discussed infra at 25.

Section 2210's exceptions to state-law rules of decision can be explained in large part by Congress's decision to treat ENOs differently from ordinary nuclear incidents such as that alleged by petitioners. An ENO is an occurrence that the NRC determines "has resulted or will probably result in substantial damages to persons offsite." 42 U.S.C. 2014(j). Because of the potential for massive liability, the PAA sets an aggregate liability limit for a particular incident, 42 U.S.C. 2210(c), which was intended to deal with catastrophic accidents. See Duke Power, 438 U.S. at 83 (citing S. Rep. No. 291, 85th Cong., 1st Sess. 15 (1957)). The waiver-of-defenses provision, 42 U.S.C. 2210(n)(1), seeks to impose strict liability, abrogate defenses based on plaintiff conduct, and alter state rules on statutes of limitations only with respect to ENOs. No such abrogation of state-law rules exist for non-ENOs because Congress was seeking both to facilitate claimant recovery and to control aggregate liability solely in cases involving a nuclear calamity. See Duke Power, 438 U.S. at 83-84.

Given these purposes, it is not surprising that the occupational radiation dose limits upon which respondent relied below for preemption, see 10 C.F.R. 20.1201-.1208, are not even based on the PAA generally, let alone on section 2210 in particular. Rather, as the NRC has noted, the dose limits are authorized by provisions of the Atomic Energy Acts of 1946 and 1954. See 10 C.F.R. Part 20, at p. 281 (1998) (citing 42 U.S.C. 2073, 2093, 2095, 2111, 2133, 2134, 2201, 2232, 2236 as "Authority"). In sum, section 2014(hh)--the sole provision that concerns applicable law in a public liability action--explicitly preserves, rather than preempts, petitioners' claims based on a state-law duty of care.

Because the text of the PAA is clear, leaving no doubt that state standards of care are not preempted, there is no need to consult the Act's legislative history. See, e.g., Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). In any event, the PAA's legislative history repeatedly confirms its plain meaning and Congress's desire to adopt state standards of care in public liability actions. The overriding purpose of both the 1966 and the 1988 PAA amendments was to ensure that federal courts would have jurisdiction over claims arising from nuclear incidents, not that federal substantive law would apply. Indeed, in passing the 1966 amendments, Congress explicitly decided not to enact substantive law (i.e., a new body of federal tort law). S. Rep. No. 1605, supra, reprinted in 1966 U.S.C.C.A.N. 3209. Rather, the approach taken by Congress was

                in keeping with the approach followed in enacting the original Price-Anderson Act--namely, interfering with State law
                to the minimum extent necessary. In essence, the plan adopted permits the retention of State law with respect to the
                cause of action and the measure of damages, but the requirements specified for the insurance contracts and the
                indemnity agreements provide the uniform rules needed to accomplish the bill's objectives. . . . [T]his is not a measure
                designed either to accomplish a general revision of American tort law or to set precedents for activities in other
                fields.

Id. (emphasis added).

The legislative history of the PAA's 1988 amendments emphasizes the same theme. Prior to 1988, no court had ever held that a personal-injury claim against a nuclear plant operator was preempted by the PAA. As respondent conceded below, cases such as petitioners' were governed by state law and, because federal question jurisdiction did not exist, were litigated in state court absent diversity. See Stibitz, 746 F.2d at 995-97. Although one of the purposes of the 1988 amendments was to broaden the grant of federal jurisdiction to cover all nuclear incidents, not just catastrophic accidents, those amendments did not supplant state substantive law. Instead, Congress's intent was to provide a single forum for such litigation and to avoid the confusion that occurred in the wake of the Three Mile Island incident. See S. Rep. No. 218, supra at 13, reprinted in 1988 U.S.C.C.A.N. 1488. Thus, "[r]ather than designing a new body of substantive law to govern [public liability actions], ... the substantive rules for decision [were to] be derived from the law of the state in which the nuclear incident involved occurs." H.R. Rep. No. 104, supra, pt. 1 at 18. There is much more similar legislative history, see, e.g., S. Rep. No. 70, supra at 20, reprinted in 1988 U.S.C.C.A.N. at 1433; H.R. Rep. No. 104, supra, pt. 1 at 5, and, to our knowledge, none to the contrary.

2. The courts of appeals have responded to the language of sections 2014(hh) and 2210 in two ways. First, they have found that section 2014(hh) preempts state-law duties of care, despite its explicit adoption of state-law "substantive rules for decision," on the ground that section 2014(hh)'s "inconsistent with" language somehow incorporates the whole body of federal law concerning nuclear energy, rather than what the provision actually says: that state substantive law applies unless it is inconsistent with the "provisions of" 42 U.S.C. 2210. See, e.g., O'Conner, 13 F.3d at 1100-01 (question is "whether the applicable state law is consistent with federal law").

Some courts, however, including the Eleventh Circuit below, have rejected that reading of the statute. Pet. App. 3a; see also, e.g., Lujan v. Regents of Univ. of California, 69 F.3d 1511, 1518 (10th Cir. 1995) (indicating that "inconsistent with" language refers only to section 2210). Rather, those courts have largely ignored the express language of the PAA and held that state-law duties of care are impliedly preempted by the federal government's alleged occupation of the field of nuclear safety, which creates a conflict between state-law tort standards and federal nuclear safety objectives. See Pet. App. 5a-7a; TMI II, 940 F.2d at 859; see also, e.g., Bohrmann v. Maine Yankee Atomic Power Co., 926 F. Supp. 211, 220 (D. Me. 1996). This reliance on implied preemption doctrine is flawed for several reasons.

First, Congress is presumed to carry out its policies through the text of enacted legislation. Thus, where Congress has expressly addressed preemption in a particular provision of an Act, that provision is assumed to be a "reliable indicium" of congressional intent. Cipollone, 505 U.S. at 517. Although this presumption "does not . . . entirely foreclose[] any possibility of implied preemption," Freightliner Corp., 514 U.S. at 288, an "express definition of the pre-emptive reach of a statute 'implies'--i.e., supports a reasonable inference--that Congress did not intend to pre-empt other matters." Id. This fidelity to legislative text is merely a variant on the canon expressio unius est exclusio alterius. Cipollone, 505 U.S. at 517. As shown above, only one provision of the PAA--section 2014(hh)--addresses the role of state law in public liability actions, and that provision preserves, rather than preempts, state-law standards of care.

There is no reason to believe that Congress intended any further preemption of state tort law here, and that ought to be the end of the matter. Indeed, because section 2014(hh) is, in the main, an anti-preemption provision, this case is unlike the ordinary preemption case, where the principal purpose of the statutory provision under scrutiny is to displace state law and the only question is the scope of that displacement. See, e.g., Medtronic, 518 U.S. at 484-85. Here, section 2014(hh) directs the courts to apply state substantive law, except where Congress, in section 2210, decided that limited and specific state tort-law principles would conflict with the goals of national nuclear policy: the waiver of defenses for ENOs, the limitation on aggregate public liability, the bar on liability of lessors of nuclear facilities, etc. Thus, section 2014(hh) itself declares adherence to the rule of expressio unius est exclusio alterius and demands that no further incursions on state law take place. In short, in light of the carefully delineated anti-preemptive scheme of section 2014(hh), there is no room for implied preemption here. Accord California Fed'l, 479 U.S. at 282 (similar anti-preemption provision under Title VII of the Civil Rights Act provided "reliable indicium" of Congress's intent on preemption question); id. at 295-96 (Scalia, J., concurring) (in light of anti-preemption provision, Court should do no more than conduct analysis required by that provision).

Second, the notion that the Atomic Energy Act impliedly preempts a state-law duty of care regarding radiation emissions conflicts with this Court's decision in Silkwood v. Kerr-McGee, supra. In that case, the plaintiff was a nuclear plant employee who sought damages from radiation exposure. The defendant argued that the entire action was preempted by, among other things, the federally-determined maximum dose levels. Silkwood v. Kerr-McGee Corp., 485 F. Supp. 566, 572-77 (W.D. Okla. 1979). A jury awarded both compensatory and punitive damages, and the trial court emphatically rejected the defendant's argument that federal radiation dose levels were controlling and therefore preempted different state-law liability rules. Id. at 577. The Tenth Circuit affirmed in part and reversed in part the jury's compensatory award on non-preemption grounds, but held that an award of punitive damages was preempted on the ground that it would improperly punish the defendant contrary to federal interests in regulating nuclear emissions. Silkwood v. Kerr-McGee Corp., 667 F.2d 908, 922-23 (10th Cir. 1981).

This Court granted review on the punitive damages question alone. The defendant renewed its argument that applying state law "would invite[] the jury to award punitive damages irrespective of Kerr-McGee's compliance with [federal] AEC regulations." See Brief for Appellee Kerr-McGee Corp. at 34, Silkwood v. Kerr-McGee Corp., No. 81-2159 (U.S. filed June 29, 1983). Nevertheless, the Court reversed, holding that, even with respect to punitive damages, the plaintiff's claims were not preempted. Silkwood, 464 U.S. at 250-58. The Court so held despite its acknowledgement that the defendant had in many respects complied with federal regulations, including federal requirements concerning radiation exposure levels. Id. at 244. The dissenting justices specifically pointed to this compliance as a justification for preemption of punitive damages. Id. at 261-62 & nn.2-5 (Blackmun, J., dissenting) (citing federal regulations, including dose standards); see also id. at 276-77 (Powell, J., dissenting). But all nine Justices agreed that, with respect to compensatory damages, such as those sought by petitioners here, there was no conflict between federal and state law and hence no preemption of any state-law cause of action. See id. at 275-76 & n.3 (Powell, J., dissenting); id. at 263-64 & n.12 (Blackmun, J., dissenting).

Third, in light of the broad role that Congress has mandated for state substantive law under the PAA, displacement of state common-law standards of care cannot be justified on the ground that federal law "occupies the field" of nuclear safety. Nonetheless, three circuit courts, including the court below, have held otherwise, relying principally on this Court's decision in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983). See Pet. App. 2a; TMI II, 940 F.2d at 859; O'Conner, 13 F.3d at 1104.

To be sure, in Pacific Gas, the Court intimated that there was no room for state regulation of nuclear safety. 461 U.S. at 205. However, the very next Term, Silkwood held that the preemptive effect of the PAA should "not be judged on the basis that the Federal Government has so completely occupied the field of nuclear safety that state remedies are foreclosed." 464 U.S. at 256 (emphasis added). To the contrary, the Court said that

                it is clear that in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in
                whatever form they might take, were available to those injured by nuclear incidents. This was so even though it was
                well aware of the NRC's exclusive authority to regulate safety matters. No doubt 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. But as we understand what was done over the years
                in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever
                tension there was between them. We can do no less. It may be that the award of damages based on the state law of
                negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it
                does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to
                accept.

Id. (emphasis added); see also Goodyear Atomic, 486 U.S. at 186 (characterizing Silkwood: "Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted").

Finally, the lower courts' invocation of conflict preemption is erroneous, since respondent's compliance with a more stringent state-law standard of care would not violate federal law. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). Indeed, this Court's decisions make clear that, in our system of dual sovereignty, there is nothing incongruous about allowing a state-law damages action to go forward where the defendant has complied with federal regulatory law. The principal purpose of state tort law is to provide compensation for plaintiffs' injuries, not to regulate defendants' future conduct. Thus, "[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 Am. Corp., 490 U.S. 93, 105 (1989) (citing Silkwood, 464 U.S. at 257-58).

Even when construing statutes that contain express preemption clauses, the Court has acknowledged that "[t]here is no general, inherent conflict between [express] federal pre-emption of state [regulatory] requirements and the continued vitality of state common law damages actions." Cipollone, 505 U.S. at 518 (despite preemption of state labeling laws by Federal Cigarette Labeling and Advertising Act of 1965, no preemption of state common-law claims premised on duty to provide warning over and above federally-mandated label); Medtronic, 518 U.S. at 497-502 (no preemption of state common-law defective manufacture and duty-to-warn claims regarding medical devices despite comprehensive federal manufacturing and warning regulations).

Presumably, this principle applies with greater force here where the relevant statutory provision, 42 U.S.C. 2014(hh), preserves, rather than preempts, state law. Thus, in the nuclear power context, although the states may not directly regulate plant operations, see generally Pacific Gas, 461 U.S. 190, the Court has allowed nuclear plant workers to recover extra compensation awards premised on violations of state regulations that go beyond federal law. Goodyear Atomic, 486 U.S. at 186. And, in Silkwood, the Court permitted the imposition of a large punitive damages award against a power plant despite its compliance with NRC regulations. 464 U.S. 238.

The lack of conflict between a state-law damages action and federal regulatory objectives is underscored here by the dual nature of the federal dose requirements. The regulations set maximum permissible dose limits, which form a ceiling for exposure levels permitted by the NRC. 10 C.F.R. 20.1201(a). The federal regulations also recognize that the federal maximum radiation levels may not provide adequate protection from radiation exposure: "The licensee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." 10 C.F.R. 20.1101(b); see also Silkwood, 464 U.S. at 243 & n.6 (describing ALARA); 10 C.F.R. 20.1003 (defining ALARA). Thus, state standards of care provide another incentive for nuclear power plant operators to decrease the levels of radiation emitted at their plants, and as such, they further, rather than undermine, federal nuclear safety objectives.

In sum, the Court should grant review because the decision below exacerbates a trend in circuit court precedent that is demonstrably at odds with the text of the Price-Anderson Act, this Court's decision in Silkwood, and governing preemption principles.

B. THE ISSUE PRESENTED IS IMPORTANT.

The importance of the question presented cannot be seriously disputed. In the court below, the Nuclear Energy Institute--which described itself as the principal organization representing the interests of the nuclear industry, including all operators of NRC-licensed plants and all manufacturers of nuclear reactors--explained that this case raises very serious issues that are "critically important" to the NEI and its members, some of whom are involved in other litigation presenting the same question as that presented here. See Motion of the Nuclear Energy Institute for Leave to File a Brief Amicus Curiae in Support of Appellee, at 2-3, in Roberts v. Florida Power & Light Co., No. 97-5195 (11th Cir., dated Apr. 2, 1998).(3)

Of greater concern than the interests of the nuclear industry is the impact of the three circuit court preemption rulings on people injured by radiation. The federal maximum radiation standards that respondent claims preempt state-law duties of care govern radiation exposure for people in surrounding communities as well as for plant workers. See 20 C.F.R. 20.1201-.1208 (occupational); 20 C.F.R. 20.1301-.1302 (members of the public). Thus, the decision below, like the decisions of other courts that have held state-law duties of care preempted, profoundly affects the lives of those harmed by radiation and undermines the traditional role of the states in setting standards by which their citizens obtain compensation for their injuries. These significant consequences underscore the need for review by the Court.

* * *

On October 13, 1998, this Court granted certiorari in El Paso Natural Gas Company v. Neztsosie, No. 98-6 (U.S.). The issue in El Paso is whether, in light of the PAA's grant of original and removal jurisdiction for public liability actions to the federal courts, 42 U.S.C. 2210(n)(1), tort actions alleging injuries from nuclear radiation can be maintained in Indian tribal courts. In the first question presented in El Paso, the petitioners contend that the tribal court improperly asserted jurisdiction because the plaintiffs' claims are preempted by federal law. See Pet. for Writ of Cert. in No. 98-6, at (i) (filed June 26, 1998). In support of review on that question, the El Paso petitioners relied on the decisions in O'Conner, TMI II, and the court of appeals below. See Reply Br. for Petitioners in No. 98-6, at 2-3 (filed Sept. 25, 1998); see also El Paso, 136 F.3d at 621 (Kleinfeld, J., dissenting) (relying on O'Conner and TMI II in arguing that tribal court did not have jurisdiction). In our view, this Court need not reach the preemption issue in El Paso, because the question of the federal courts' jurisdiction is separate from the question of the substantive duty of care in a public liability action, whichever court has jurisdiction. However, because of the substantial overlap between the issue as presented by the petitioners in El Paso and the question presented here, and because this petition indisputably presents the preemption issue, we urge the Court to grant this petition and set the matter for argument in conjunction with the argument in El Paso.

CONCLUSION
 
The petition for a writ of certiorari should be granted.
Respectfully submitted,
 

Brian Wolfman                                                                 Ervin A. Gonzalez

(Counsel of Record)                                                          Raymond W. Valori

Alan B. Morrison                                                                 Robles & Gonzalez, P.A

David C. Vladeck

Amanda Frost

Public Citizen Litigation Group

Attorneys for Petitioners Bertram Roberts and Hanni Roberts

October 17, 1998

1. 1 The Nuclear Regulatory Commission determines whether a nuclear incident is an ENO. See 42 U.S.C. 2014(j); 10 C.F.R. 140.81 et seq. The waiver of defenses based on state statutes of limitations has since been further liberalized. See 42 U.S.C. 2210(n)(1).

2. 2 Although the majority of lower court rulings, including the decisions of the Seventh Circuit in O'Conner, and of the Third Circuit in TMI II, hold that federal regulations preempt state-law standards of care, the case law is not unanimous on the question. Most prominently, on remand from this Court in Silkwood, the defendant sought to avoid liability because of its compliance with federal regulations. The Tenth Circuit flatly rejected that argument on the basis of this Court's ruling, holding that the "Supreme Court was well aware" of the defendant's "substantial compliance" when it made its no-preemption ruling. Silkwood v. Kerr-McGee Corp., 769 F.2d 1451, 1456-57 (10th Cir. 1985); see also id. at 1457 (because "both of the [Silkwood] dissents treated the majority opinion as holding that compliance with federal regulations does not preclude the award of punitive damages under state law principles of tort," defendant's position is a "non sequitur" in light of the Supreme Court's ruling). In addition, Judge Scirica, concurring in TMI II, strongly suggested that state law, rather than federal regulations, provide the duty of care in public liability actions, based on his reading of 42 U.S.C. 2014(hh) and Silkwood. See TMI II, 940 F.2d at 863-64, 870-71 & n.3. Moreover, lower federal courts have issued rulings that support petitioners. See In re Hanford Nuclear Reservation Litig., 780 F. Supp. 1551, 1570-79 (E.D. Wash. 1991); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468, 1471 (D. Colo 1991); Building & Constr. Trades Dep't v. Rockwell Int'l Corp., 756 F. Supp. 492, 493 (D. Colo. 1991), aff'd 7 F.3d 1487 (10th Cir. 1993)(Table); see also Landry v. Florida Power and Light, 799 F. Supp. 94, 96 n.7 (S.D.Fla. 1992) (noting "split of authority" between Tenth Circuit and Third Circuit on question whether plaintiff must show violation of federal radiation standards), aff'd, 998 F.2d 1021 (11th Cir. 1993) (Table).

3. 3 Petitioners opposed NEI's motion to an appear as amicus on the ground that respondent was a member of NEI, and the Eleventh Circuit denied the motion.