REPLY BRIEF FOR APPELLANTS
ARGUMENT

A. Introduction.

The provision of federal law on which this case turns, 42 U.S.C. 2014(hh), specifically preserves Mr. Roberts' common-law rights by adopting "the substantive rules for decision" in public liability actions "from the law of the State in which the nuclear incident involved occurs," unless "inconsistent" with specific provisions of the Price Anderson Act ("PAA"). Appellee Florida Power & Light ("FPL") asserts, however, that section 2104(hh) somehow gives preemptive effect to "the entire federal framework governing nuclear safety," FPL Br. 26, leaving no room for state-law rules for decision. And the company claims that this "federal framework preempts the entire field" (id. at 6), even though the Supreme Court has said that 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." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) (emphasis added). In short, FPL is able to defend the decision below only by failing to do business with the text and framework of the PAA, which give primacy to state tort law while recognizing the federal government's plenary control over direct regulation of nuclear power. See id.

Before turning to specific consideration of FPL's arguments, two general replies are in order. First, throughout its brief (e.g., Br. at 2, 37), FPL relies heavily on non-binding lower-court case law supporting its position, as if to suggest that those cases have relieved this Court of its obligation independently to review the merits. At the outset of the Argument in our opening brief (at 16), we acknowledged that most, but not all, of the precedents support FPL's position. We pointed out, however, that those precedents are based on a basic misinterpretation of the plain language of 42 U.S.C. 2014(hh). See Open. Br. 21-22.

The importance of taking a fresh look at statutory language was driven home recently when the Supreme Court reversed longstanding federal practice and the unanimous views of the federal appellate and trial courts concerning the multi-district litigation statute, 28 U.S.C. 1407, because they were at odds with the text of that statute. Lexecon v. Milberg Weiss Berhsad Hynes & Lerach, 118 S. Ct. 956 (1998). Moreover, in the context of preemption of state tort claims, this Court has not hesitated to come to a different conclusion from the majority view after taking a hard look at the text and history of the relevant statutory materials. Compare Lohr v. Medtronic, Inc., 56 F.3d 1335 (11th Cir. 1995) (partial preemption), with, e.g., Mendes v. Medtronic, Inc., 18 F.3d 13 (1st Cir. 1994) (complete preemption), and Duvall v. Bristol-Myers-Squibb Co., 65 F.3d 392 (4th Cir. 1995) (same). And in that same context, the Supreme Court later found no preemption of the plaintiffs' state tort claims, claimed to be preempted by the comprehensive federal regulation of medical devices, disagreeing in whole or in part with the views of eight circuit courts. Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996); see also, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 508 n.2 (1992) (state tort claims held generally not preempted despite unanimity of contrary federal authority); Lewis v. Brunswick Corp., 118 S. Ct. 439 (1997) (granting plaintiff's petition for writ of certiorari in tort preemption case despite unanimity of federal authority favoring preemption).

Although precedent is important, of course, in the analysis of this (or any other) case, the significance of non-binding authority must ultimately be judged on the strength of its analysis. As shown in our opening brief and as further demonstrated below, in this case, the minority view has the better of the argument.

Second, FPL's brief makes the unwarranted assumption that there is something unusual about allowing a state-law damages action to go forward where the defendant has complied with federal regulatory law. That position ignores the fact that the principal purpose of state tort law is to provide compensation for the plaintiff's injury, not to regulate the defendant's future conduct. FPL's view cannot be squared with the presumption against preemption, Medtronic, 116 S. Ct. at 2250, nor with the basic principle that "[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).

Thus, even when construing statutes that contain express preemption clauses, the Supreme Court has recognized 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 the 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, 116 S. Ct. at 2256-57 (no preemption of state common-law defective manufacture and duty-to-warn claims regarding medical devices despite comprehensive federal manufacturing and warning regulations).

Indeed, in the nuclear power context, although the states may not directly regulate plant operations, see generally Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190 (1983), the High Court has allowed nuclear plant workers to recover extra workers' compensation awards premised on violations of state regulations that go beyond federal law, Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 186 (1988), and permitted the imposition of a massive punitive damages award against a power plant despite its compliance with NRC regulations. Silkwood, 464 U.S. 238. Having shown that there is no inherent conflict between preemption of state positive law and imposition of state common-law damages liability, we now turn to the specific arguments raised by FPL.(1)

B. The Text Of The PAA Preserves, Rather Than Bars, Mr. Roberts' Claims.

Mr. Roberts' opening brief explained that 42 U.S.C. 2014(hh) explicitly preserves his claims. Section 2014(hh) provides first that a "public liability action," such as that filed by Mr. Roberts, is an action that "aris[es] under section 2210 of this title." Section 2014(hh) then goes on to say that "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." FPL does not--because it cannot--deny that the standard of care in a tort action is a "substantive rule[] for decision" that ordinarily would "be derived from [state] law." In fact, FPL concedes that "§2014(hh) specifies 'rules for decision' (which is exactly what a standard of care is)." FPL Br. at 22 (emphasis added).

Rather, FPL asserts that section 2014(hh) preempts Mr. Roberts' suit (and, as we shall later see, the entire field of state tort law) on the ground that applicable Florida law would be "inconsistent with" all of the "section[s]" of federal law regulating nuclear power. However, as shown in our opening brief (at 22), the term "such section" can only be a reference to section 2210 of the PAA, 42 U.S.C. 2210, since it is the only "section" referred to in 42 U.S.C. 2014(hh). See 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); Coley v. Commonwealth Edison Co., 768 F. Supp. 625, 628 (D. Ill. 1991) (replacing "such section" with "§ 2210" in quoting 42 U.S.C 2014(hh)).(2)

Confronted with this statutory language, the problem for FPL is that 42 U.S.C. 2210 has nothing to do with state-law standards of care, let alone federal maximum dose limits. FPL takes several tacks in response, none of which are persuasive.

First, FPL distorts Mr. Roberts' position. The company says that Mr. Roberts' analysis considers only the potential inconsistency of state tort law "with certain provisions in section 2210." FPL Br. 7 (emphasis in original). Similarly, FPL portrays our argument as one claiming that state law is "unaltered" by section 2014(hh). FPL Br. 19. Neither characterization of our position is accurate. As Mr. Roberts described in some detail (Open. Br. 22-24), in a public liability action, although most state-law liability rules are specifically adopted by section 2014(hh), state-law rules are altered to the extent that they are at odds with any provision of section 2210. The difficulty for FPL, however--which the company never confronts--is that no provision of section 2210 remotely concerns state-law standards of care, much less dose limits. Indeed, as we pointed out (Open. Br. 23), dose limits are authorized by the Atomic Energy Acts of 1946 and 1954, which are separate from and pre-date the PAA and its section 2210.

Section 2210 does alter state tort law in certain specific ways. For instance, lessors of nuclear facilities generally cannot be held liable, even where state law provides otherwise. 42 U.S.C. 2210(r). The dollar amount of aggregate liability is capped, id. § 2210(e), even if state-imposed judgments would exceed the cap. And, defendants may not plead certain defenses to liability, id. § 2210(n)(1), even if those defenses would otherwise be available under state law. But because section 2210 does not address most topics of state tort law, including the applicable standard of care, the plain language of 42 U.S.C. 2014(hh), underscored by the doctrine expressio unius est exclusio alterius, leaves no doubt that Mr. Roberts' claims are not preempted.(3)

Next, FPL argues that "such section" in section 42 U.S.C. 2014(hh) refers to the entire PAA, not just section 2210. FPL Br. 23. For the reasons described above and in our opening brief, that "reading" of the statute makes a mockery of the language Congress chose. Obviously, the term "such section" must refer to a particular section of the Act (here, section 2210) and not the Act in its entirety. In any event, even if we were to assume (incorrectly) that "such section" did mean the PAA as a whole (i.e., Congress intended to adopt state rules of decision, except those inconsistent with the PAA), that would not change the proper result here.

As noted above, federal dose limits are authorized not by the PAA, but by the substantive provisions of the Atomic Energy Acts of 1946 and 1954. The goals of the PAA were to ensure that the public would be adequately compensated in case of a nuclear accident and to remove a deterrent to private involvement in nuclear energy by limiting private aggregate liability for nuclear accidents. The PAA therefore established a system of comprehensive liability insurance for Department of Energy and Nuclear Regulatory Commission ("NRC") contractors and licensees. S. Rep. No. 70, 100th Cong., 1st Sess. 13-14 (1987), reprinted in 1988 U.S.C.C.A.N. 1424, 1426-27; see generally Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 64-67 (1978). Its goal was to "facilitate recovery by plaintiffs," S. Rep. No. 70, supra at 15, reprinted in 1988 U.S.C.C.A.N. at 1427, under state substantive law. See 42 U.S.C. 2014(hh). Not surprisingly, therefore, FPL does not (and cannot) point to a single provision of the PAA, other than those specifically set forth in section 2210 (regarding the liability of lessors, aggregate liability, etc.), that remotely bears on state tort law.

Finally, without any anchor in the statutory text, FPL ends with an extraordinary and inaccurate assertion:

The phrase "such section" explicitly and implicitly embodies the entire federal framework governing nuclear safety, including permissible dose limits.

FPL Br. 26. To put FPL's assertion in plain English: Even though section 2014(hh) expressly adopts state substantive law as "rules for decision" in all public liability actions, unless inconsistent with one section of the PAA, FPL claims that all state tort law is preempted because the preemptive scope of section 2014(hh) is all federal law concerning nuclear safety.

FPL arrives at this fantastic conclusion in two ways, both of which are at odds with the text of sections 2014(hh) and 2210, and unsupported by any other provision of the PAA. First, the company cites a grab-bag of legislative history that is unrelated to tort liability under the PAA (including a Senate Report that pre-dates the enactment of section 2014(hh) by 29 years). See FPL Br. 24. It also cites NRC regulations that concern the agency's authority over plant conditions, but which were not promulgated pursuant to the PAA and do not even purport to concern the substantive standards for liability in tort cases. FPL Br. 24-25. In sum, this argument simply restates FPL's view that federal law preempts state substantive law in a public liability action, despite section 2014(hh)'s mandate that state substantive law provides the "rules for decision."

Second, and even more far afield, is FPL's argument that state substantive law is ousted by section 2014(hh) because "the words 'Nuclear Regulatory Commission' or 'Commission'" are used fifty-seven times in section 2210. FPL Br. 26. Section 2210 is a lengthy provision whose principal purpose is to establish the complex insurance and indemnification scheme for public liability to foster recovery by persons injured at nuclear power plants. See Open. Br., Addendum A-2 - A-20. Although we have not double-checked FPL's math, we fail to see how references to the NRC, the agency charged with administering the PAA's insurance scheme, have any bearing on the question whether state substantive law applies in individual public liability actions anymore than mere reference to a federal regulator has had a bearing in other preemption cases. For instance, the multiple references to the National Highway Traffic Safety Administration in the federal automotive safety law had no relevance to the Supreme Court's no-preemption holding in Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995), and the same can be said for the large number of references to the Food and Drug Administration's enforcement (by delegation from HHS) of the federal medical device law, see 21 U.S.C. 360c, and the no-preemption holding in Medtronic, 116 S. Ct. 2240.

In this regard, a passage from the Supreme Court's recent decision in Lexecon fits FPL's argument like a glove: "The language [of the statute] is straightforward, and with a straightforward application ready at hand, statutory interpretation has no business getting metaphysical." 118 S.Ct. at 963. This Court need not decide whether counting-up the statutory references to the NRC is an exercise in metaphysics or simply one in diversion. In either event, FPL provides no reason to deviate from the plain language of 42 U.S.C. 2014(hh), which requires reversal of the decision below.

C. The History and Structure of the PAA Confirm Mr. Roberts' Position.

Mr. Roberts' opening brief showed (1) that the PAA's legislative history underscores section 2014(hh)'s anti-preemptive effect and the primacy of state law in public liability actions (Open Br. 24-27); (2) that sections 2014(hh) and 2210 provide a "reliable indicium" of congressional intent, Cipollone, 505 U.S. at 517, eliminating the need to ask whether Mr. Roberts' claims are impliedly preempted (id. at 28-31); and, (3) in any event, federal law does not impliedly preempt state-law standards of care in public liability actions (id. at 31-41). FPL's brief does not address most of these points. Accordingly, we respond here only to the few assertions made by the company.

In addressing the history of the PAA, FPL makes a pivotal--and entirely accurate--concession:

Prior to the Amendments Act [of 1988], 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.

FPL Br. 16.

This statement is highly significant for two related reasons. First, despite the exclusivity of federal regulation concerning the actual operation of nuclear facilities, see Silkwood, 464 U.S. at 250, the parties agree that prior to 1988 there was no preemption whatsoever of state-law damages claims arising from nuclear incidents. Thus, despite FPL's repeated insistence that the "federal framework" dating back to 1946 "preempts the entire field of nuclear safety" (FPL Br. 6; see also, e.g., id. at 24-32), that framework cannot be the basis for preemption of state-law liability rules, as Silkwood held. See 464 U.S. at 256 (in light of the PAA, the preemptive effect of federal law should "not be judged on the basis that the federal Government has so completely occupied the field of nuclear safety" (emphasis added)).

Second, given the uninhibited viability of state tort law pre-1988, the validity of FPL's position and of the ruling below turns exclusively on an alleged sea-change in the liability rules brought on by the 1988 amendments to the PAA. But no such sea-change occurred. To begin with, as discussed in detail above, the 1988 amendments saw the enactment of section 2014(hh), which took pains to adopt state, not federal, liability rules.

Undaunted, FPL relies exclusively on the fact that the 1988 amendments established a federal cause of action for ordinary nuclear incidents (FPL Br. 10), as well as for extraordinary nuclear occurrences ("ENOs"), which had been contained in the PAA since 1966. See Roberts Open. Br. 4. Although FPL claims that creation of this federal cause of action for ordinary nuclear incidents altered the underlying state-law nature of the tort (FPL Br. 10), all the evidence points in precisely the opposite direction.

The relevant PAA amendment simply replaced the words "extraordinary nuclear occurrence" with "nuclear incident" in 42 U.S.C. 2210(n)(2), the section of the PAA that provides for federal jurisdiction. H.R. Rep. No. 104, 100th Cong., 1st Sess., pt. 1 at 50 (1987). As explained in our opening brief (at 6), this amendment had nothing to do with displacing state substantive law, but rather was a response to litigation concerning the Three Mile Island incident. S. Rep. No. 218, 100th Cong., 1st Sess. 13 (1987), reprinted in 1988 U.S.C.C.A.N. 1476, at 1488. All of that litigation had been consolidated in federal court in Pennsylvania (for obvious efficiency reasons, such as coordination of discovery), but later dismissed for lack of federal jurisdiction after the NRC determined that the Three Mile Island incident was not an ENO. See H.R. Rep. No. 104, supra, pt. 1 at 18 (citing Stibitz v. GPU, 746 F.2d 993 (3d Cir. 1984), cert. denied, 469 U.S. 1214 (1985)). Federal jurisdiction over all nuclear incidents was created simply to avoid repetition of the Three Mile Island jurisdictional fiasco. Thus, as if to answer the very contention made by FPL here, the congressional committee that drafted the amendment defining "public liability action" explained "that any [public liability] action arises under the Price-Anderson Act for purposes of Federal court jurisdiction," and made no mention of a need to preempt state-law liability duties. H.R. Rep. No. 104, supra, pt. 1 at 29 (emphasis added).

Moreover, along with the grant of federal jurisdiction, Congress emphasized the continuing state-law character of the public liability tort by enacting section 2014(hh), which adopts state-law tort standards. In light of the foregoing, FPL's complaint that we ignore the purpose and history of the 1988 amendments rings hollow. Although our principal authority is the statutory text, at the risk of repetition, we note that the legislative history of the 1988 amendments abundantly supports our position. See H.R. Rep. No. 104, supra, pt. 1 at 18 ("Rather than designing a new body of substantive law to govern [public liability actions], however, the bill provides that the substantive rules for decision shall be derived from the law of the state in which the nuclear incident involved occurs"); id. at 5 ("[l]iability is determined under applicable state tort law") (emphasis added); id. at 16 ("This provision is not intended to create liability for precautionary evacuation expenses where no liability exists under state tort law, but only to provide compensation where such liability is established in accordance with state tort law") (emphasis added); H.R. Rep. No. 104, supra, pt. 3 at 15 ("If an accident is not an ENO, the strict liability standard does not apply, and claims must be brought under the standard of proof specified by state tort law") (emphasis added); id. at 16 ("[L]iability is determined according to applicable state tort law") (emphasis added); S. Rep. No. 70, supra at 20, reprinted in 1988 U.S.C.C.A.N. at 1433 ("This provision [paragraph 170.d(7) of the 1988 Amendments Act] specifies the source of indemnification payments for damage claims approved under the usual state tort procedures applicable to claims to be compensated under the Price Anderson Act") (emphasis added); S. Rep. No. 218, supra at 13, reprinted in 1988 U.S.C.C.A.N. at 1488 ("[T]he substantive law of decision shall be derived from the law of the State in which the incident occurred"). In sum, far from altering the state-law character of the underlying tort, the 1988 PAA amendments uncompromisingly reinforce it.

One further point, regarding the breathtaking expanse of FPL's position, warrants a brief discussion. The company maintains that "the only issues relevant in a PLA [public liability action] are dose and causation." FPL Br. 10 (emphasis added). Generally speaking, causation is a question of fact, not law: in this case, whether the radiation at the Turkey Point plant caused Mr. Robert's fatal illness. The question whether the federal dose maximum provides the exclusive standard of care is a question of law; and on that score, FPL maintains that federal law completely preempts state law. Put differently, according to FPL, there is no room for state law in a public liability action because the only relevant issue is one of federal law. That conclusion, however, runs headlong into 42 U.S.C. 2014(hh), which specifically demands the opposite: that state substantive law provide the rules for decision in cases alleging injuries from exposure at nuclear power plants. The decision below should therefore be reversed.

D. Mr. Roberts' Strict Liability Claim Is Not Preempted.

Without citation to our brief, FPL claims that "the Roberts appear to have abandoned their strict liability claim on appeal." FPL Br. 32. That is not accurate. Both Mr. Roberts' negligence and strict liability claims survive preemption for the reasons given above and in our opening brief. In short, because section 2014(hh) preserves Mr. Roberts' claims under state law, his strict liability claim, like all other issues in the case, will rise or fall as a matter of state law.

Although FPL's argument is not entirely clear on this point, we understand the company to argue that, because the PAA bars a no-fault defense in ENO cases, i.e., because the PAA enacts strict liability as a matter of federal law, the PAA somehow prohibits recovery under state law on strict liability grounds in non-ENO cases. FPL goes so far as to say that "Congress expressly preserved the defense of no fault (i.e., compliance with the federal permissible dose limits) in a non-ENO PLA such as this action." FPL Br. 42 (citing 42 U.S.C. 2210(n)(1)(i)); see also id. at 33-34. This argument is illogical, and, to put it charitably, twists the statutory language.

As a matter of logic, simply because Congress has required strict liability in an ENO case says nothing about whether Congress wanted to bar strict liability in non-ENO cases. Congress left that question, as with most other questions of liability, to state law. See 42 U.S.C. 2014(hh). Some states do not recognize strict liability, see, e.g., Fisher v. Monsanto Co., 863 F. Supp. 285, 289 (W.D. Va. 1994) (no strict liability under Virginia law), and other states may or may not recognize it in the particular circumstances presented here or in other nuclear incident cases. Thus, whether strict liability applies will depend on the law of the state where the incident occurred, just as section 2014(hh) provides. Turning to FPL's statutory argument, suffice it to say that the PAA provision on which the company relies for its assertion that "Congress expressly preserved the defense of no fault" in non-ENO cases, 42 U.S.C. 2210(n)(1)(i), says nothing of the sort; to the contrary, it affirmatively imposes strict liability on defendants in ENO cases.

In arguing that Mr. Robert's strict liability claim is preempted, FPL relies on the Supreme Court's decision in Silkwood under which, the company says, it is improper to punish the company for conduct consistent with federal law. FPL Br. 43. The purpose of strict liability is to impose compensatory liability without fault, not to punish the defendant. In any event, FPL's reliance on Silkwood is more than a little ironic. As explained in our opening brief (at 33-36), throughout the proceedings in Silkwood, the defendant argued that compliance with federal regulations, including dose regulations, shielded it from liability for compensatory and punitive damages. In the Supreme Court, which ruled specifically on the punitive damages question, all nine Justices agreed that compensatory damages could be imposed and a majority of the Court held that punitive damages 20 times greater than the compensatory award were not preempted. On remand from the Supreme Court, the defendant again sought to avoid liability because of its compliance with federal regulations. The Tenth Circuit flatly rejected that argument, however, on the basis of the Supreme Court's decision, noting 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 "non sequitur" in light of the Supreme Court's ruling).

FPL's reliance on Justice Powell's Silkwood dissent is particularly peculiar. See FPL Br. 29-30. Although that dissent emphasized plenary federal authority over the direct regulation of nuclear power, it specifically noted that an award of compensatory damages was not preempted by federal law. See Silkwood, 464 U.S. at 276 n.3 (Powell, J., dissenting). And of special relevance here, Justice Powell saw no bar to an award of compensatory damages on strict liability grounds, despite compliance with federal regulations, because "[t]here is no element of regulation when compensatory damages are awarded, especially when liability is imposed without fault, as authorized by state law." Id. (emphasis added).

In sum, Mr. Roberts' strict liability claim, as with his negligence claim, must be determined in accordance with principles of Florida law, as 42 U.S.C. 2014(hh) demands.

CONCLUSION

For the reasons stated above, the decision of the district court should be reversed and the case remanded for a trial on the merits.

Respectfully submitted,
 

Brian Wolfman

David C. Vladeck

Public Citizen Litigation Group
 

Raymond W. Valori

Ervin A. Gonzalez

Robles & Gonzalez, P.A.
 

Attorneys for Appellants

Bertram Roberts and Hanni Roberts

April 20, 1998

1. 1 This Court has not yet acted on the motion of the Nuclear Energy Institute for leave to appear amicus curiae. In any event, because the points raised by the Institute are almost identical to those raised by FPL, this brief responds specifically only to FPL.

2. 2 By comparison, the principal appellate authority upon which FPL relies for its statutory analysis simply lifts the "such section" language out of section 2014(hh) and replaces it with the entire body of "federal law." O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1100 (7th Cir. 1994) (question is "whether the applicable state law is consistent with federal law").

3. 3 The addendum to the Roberts' opening brief (at page A-21) contains a summary of section 2210, which describes the subject matter of each of its subsections.