Gaballah v. PG & E, No. C-89-0770-WWS-TSC.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtT. Patrick Hannon, Campbell, Cal., for plaintiff
Citation711 F. Supp. 988
Docket NumberNo. C-89-0770-WWS-TSC.
Decision Date10 May 1989
PartiesSafwat GABALLAH, Plaintiff, v. PG & E and Does 1 through 1,000, Defendants.

711 F. Supp. 988

Safwat GABALLAH, Plaintiff,
v.
PG & E and Does 1 through 1,000, Defendants.

No. C-89-0770-WWS-TSC.

United States District Court, N.D. California.

May 10, 1989.


T. Patrick Hannon, Campbell, Cal., for plaintiff.

Pamela Christensen, John R. Low, San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION AND ORDER

SCHWARZER, District Judge.

This case once again raises the question whether federal regulation of the subject matter of a state court action permits its removal to federal court.

711 F. Supp. 989

Plaintiff, a former employee of defendant PG & E at its Diablo Canyon nuclear power plant, sues for wrongful discharge. He asserts that he was terminated for having brought to his employer's attention safety concerns arising from alleged discrepancies between the "as built" drawings, on which PG & E's seismic safety calculations were based, and the true conditions of the plant. He alleges that seismic safety at Diablo Canyon is a matter of "extreme public policy." Plaintiff seeks compensatory and punitive damages for discharge in violation of public policy and for intentional infliction of emotional distress.

PG & E removed the action to this Court alleging federal question jurisdiction under the Atomic Energy Act of 1954 ("AEA"), 42 U.S.C. §§ 2011 et seq., and the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. §§ 5801 et seq.1 In particular, PG & E contends that plaintiff's claim is pre-empted by section 210 of the ERA, 42 U.S.C. § 5851. The Court granted plaintiff's motion to remand and ordered PG & E to pay $350 for plaintiff's costs including attorneys' fees. PG & E has moved for reconsideration of the remand order.

The issue before the Court is whether the complaint must be read as alleging a federal law cause of action over which this Court has original jurisdiction. Under the well-pleaded complaint rule, an action is removable if the only claim that could be asserted on the facts alleged arises under federal law. If the complaint alleges only state law claims, this requires a determination that the pre-emptive effect of the federal law is so powerful that it displaces entirely any state law claim on the subject. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). It is not sufficient that federal law may provide a defense which would defeat the state law claim. Id., 463 U.S. at 9-10, 103 S.Ct. at 2846-47.

By their terms the AEA and the ERA do not pre-empt state law with respect to claims by employees. Cf. Employees Retirement Income Security Act, 29 U.S.C. § 1144(a) ("the provisions of this act ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan"). Section 210(a) merely prohibits discrimination against employees on the basis of the employee's having commenced, testified, or assisted in any proceeding under the AEA. And section 210(b) permits an employee to file a complaint with the Secretary of Labor and, if the charge of discrimination is sustained, to obtain reinstatement and recover compensatory damages. 42 U.S.C. §§ 5851(a), (b).

In the absence of explicit language, Congressional intent to pre-empt state law may be found from a scheme of federal regulation so pervasive that no room is left for states to supplement it. Pacific Gas & Elec. Co. v. Energy Resources Comm'n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1721-22, 75 L.Ed.2d 752 (1983). Even if an entire area of law is not pre-empted, state law is pre-empted to the extent that it (1) conflicts with federal law or (2) interferes with the enforcement of federal law. Id.

PG & E argues that the AEA and the ERA "pervasively and thoroughly regulate all aspects of the design, construction, and operation of nuclear power plants." (Removal Pet. 2.) But that is a considerable exaggeration of the meaning and significance that has been accorded these Acts by the Supreme Court. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249-56, 104 S.Ct. 615, 621-26, 78 L.Ed.2d 443 (1984) (AEA does not pre-empt state law personal injury claim).

With respect to conflict between state and federal law, PG & E argues that, in the absence of pre-emption, there could be a "deluge of discordant state court rulings

711 F. Supp. 990
on the protection to be afforded employees raising nuclear safety concerns," there would be protracted state court litigation contravening the Congressional mandate for a prompt resolution of these kinds of complaints, and section 210 would be nullified because plaintiffs would generally prefer a jury trial and the possibility of punitive damages available in state court. (PG & E Memo. 9.)

These contentions are not persuasive. If anything, they show that the remedy under section 210 would be considered inadequate by many plaintiffs and hence not likely to have been intended as exclusive by Congress. In any event, there is no showing that the conflict between state and federal law is so pronounced that "compliance with both ... is a physical impossibility." Pacific Gas & Elec. Co., 461 U.S. at 204, 103 S.Ct. at 1722.

The issue of conflict was addressed in English v. General Elec. Co., 683 F.Supp. 1006, 1013-14 (E.D.N.C.1988), aff'd, 871 F.2d 22 (4th Cir.1989). Relying on subsection (g), which bars relief under section 210 for any employee who, without direction from the employer, intentionally violates the AEA, that court postulated hypothetical cases in which an employee, though barred from recovering under section 210, could nonetheless recover in a state law wrongful termination action. That court viewed subsection (g) as "strong evidence of Congress' intent to pre-empt state actions for wrongful discharge and other discrimination with respect to nuclear whistleblowers." Id., 683 F.Supp. at 1014.

This Court must respectfully disagree. First, there is no evidence that Congress intended to do...

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3 practice notes
  • Ackison v. Detroit Edison Co., No. 90-CV-71503-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 31, 1990
    ...found no preemption for such claims: Norris v. Lumberman's Mut. Casualty Co., 881 F.2d 1144, 1151 (1st Cir.1989); Gaballah v. PG & E, 711 F.Supp. 988, 991 (N.D.Cal.1989); Garg v. Narron, 710 F.Supp. 1116, 1118 (S.D.Tex.1989); Stokes v. Bechtel North American Power Corp., 614 F.Supp. 732, 745...
  • Masters v. Daniel Intern. Corp., No. 88-1345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 6, 1990
    ...Reorganization Act did not preempt state law claims. In accord with this position also see Gaballah v. Pacific Gas and Electric Co., 711 F.Supp. 988 (N.D.Cal.1989); Stokes v. Bechtel North American Power Corp., 614 F.Supp. 732 (N.D.Cal.1985); Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 5......
  • Pacheco v. Raytheon Co., Civ. A. No. 91-0306L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • November 21, 1991
    ...258-64 (6th Cir.1980)); Energy Reorganization Act of 1974, § 210, as amended, 42 U.S.C.A. § 5851(b) (discussed in Gaballah v. PG & E, 711 F.Supp. 988, 992 Furthermore, review of the legislative history reveals that Congress enacted a narrower version of § 2409 than the version originally pr......
3 cases
  • Ackison v. Detroit Edison Co., No. 90-CV-71503-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 31, 1990
    ...found no preemption for such claims: Norris v. Lumberman's Mut. Casualty Co., 881 F.2d 1144, 1151 (1st Cir.1989); Gaballah v. PG & E, 711 F.Supp. 988, 991 (N.D.Cal.1989); Garg v. Narron, 710 F.Supp. 1116, 1118 (S.D.Tex.1989); Stokes v. Bechtel North American Power Corp., 614 F.Supp. 732, 745...
  • Masters v. Daniel Intern. Corp., No. 88-1345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 6, 1990
    ...Reorganization Act did not preempt state law claims. In accord with this position also see Gaballah v. Pacific Gas and Electric Co., 711 F.Supp. 988 (N.D.Cal.1989); Stokes v. Bechtel North American Power Corp., 614 F.Supp. 732 (N.D.Cal.1985); Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 5......
  • Pacheco v. Raytheon Co., Civ. A. No. 91-0306L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • November 21, 1991
    ...258-64 (6th Cir.1980)); Energy Reorganization Act of 1974, § 210, as amended, 42 U.S.C.A. § 5851(b) (discussed in Gaballah v. PG & E, 711 F.Supp. 988, 992 Furthermore, review of the legislative history reveals that Congress enacted a narrower version of § 2409 than the version originally pr......

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