Norris v. Lumbermen's Mut. Cas. Co., No. 89-1019

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore BOWNES and TORRUELLA; BOWNES
Citation881 F.2d 1144
Parties, 58 USLW 2126, 113 Lab.Cas. P 56,108, 4 Indiv.Empl.Rts.Cas. 1030 Richard D. NORRIS, Plaintiff, Appellant, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, Defendant, Appellee. . Heard
Docket NumberNo. 89-1019
Decision Date04 May 1989

Page 1144

881 F.2d 1144
99 A.L.R.Fed. 755, 58 USLW 2126, 113
Lab.Cas. P 56,108,
4 Indiv.Empl.Rts.Cas. 1030
Richard D. NORRIS, Plaintiff, Appellant,
v.
LUMBERMEN'S MUTUAL CASUALTY COMPANY, Defendant, Appellee.
No. 89-1019.
United States Court of Appeals,
First Circuit.
Heard May 4, 1989.
Decided Aug. 3, 1989.

Ernest C. Hadley, Wareham, Mass., for plaintiff, appellant.

Kalvin M. Grove with whom Cary Schwimmer and Fox and Grove, Chartered, Chicago, Ill., were on brief, for defendant, appellee.

Before BOWNES and TORRUELLA, Circuit Judges, and RE, * Judge.

BOWNES, Circuit Judge.

Richard D. Norris, plaintiff-appellant, appeals from the district court's dismissal of

Page 1145

his wrongful discharge action based on Massachusetts contract and tort law against defendant-appellee, Lumbermen's Mutual Casualty Company (Lumbermen). The case had been removed by Lumbermen from the state court to federal court. The district court dismissed Norris' suit because the court determined that it was preempted by federal law. Norris v. Lumbermen's Mut. Casualty Co., 687 F.Supp. 699 (D.Mass.1988). For the reasons set forth, we reverse.

I. FACTS

Lumbermen provides insurance and inspectional services to nuclear power plants. The inspectional services are provided during the construction phase of a nuclear power plant and precede the issuance of an operating license by the Nuclear Regulatory Commission. 1 From 1976 until his discharge in 1987, Norris was employed by Lumbermen in its Kemper Insurance Group as the Northeast Regional Manager of the Special Inspection Services Section. As Regional Manager, Norris' duties included establishing and implementing inspectional services, assuring that all such services were in compliance with applicable standards, soliciting and retaining clients, and providing direct inspection and audit services to Lumbermen's clients. Norris' complaint alleges three incidents where he voiced his concern about matters of safety relating to Lumbermen's inspectional services.

In April 1985, Norris was assigned to investigate a complaint regarding reactor pressure vessels at the Vogle Nuclear Power Station in Georgia. Another Lumbermen inspector had inspected the vessels when they were manufactured. Norris determined that the original inspector had been negligent in his inspection, and Norris reported this to his supervisor, Robert Muise. In mid-1986, Muise requested that, because of pending litigation involving the vessels, Norris have a supervisor delete, from an employee appraisal report, any reference to the substandard inspection. Norris objected but when Muise insisted, he complied.

In June 1986, Norris investigated a former employee who had worked as an inspection trainee at the Seabrook Nuclear Power Plant. His preliminary investigation discovered several problems which he felt warranted a full investigation. He reported this to Muise. Muise indicated that such an investigation could interefere with the completion of Seabrook's data report certifications, which are distributed, inter alia, to the Nuclear Regulatory Commission. Muise told Norris to ignore his preliminary findings and not to investigate the matter further. Norris complied.

In December 1986, Muise revised Lumbermen's inspection instructions and standards in such a way as to eliminate a verification technique which would have identified the defective pressure vessels at Vogle. Norris objected to the revision but took no further action.

In March 1987, Public Service Electric and Gas Company (PSE & G) hired Lumbermen to conduct an audit at its Salem Nuclear Power Plant in New Jersey. Norris informed Muise that he would be conducting the audit on Lumbermen's behalf. Norris conducted the audit in May 1987. Shortly thereafter, Lumbermen's Internal Security Division investigated Norris' activities at PSE & G. It concluded that Norris' activities had been conducted without Lumbermen's consent or knowledge, constituted a conflict of interest and resulted in Norris' personal financial gain. The investigation also found that Norris submitted fraudulent expense vouchers and time sheets from 1985 to 1987. Norris denies the charges with respect to his activities at PSE & G and claims that Lumbermen encouraged him to misrepresent his expenditures.

In June 1987, Lumbermen fired Norris. Lumbermen did not inform Norris of its

Page 1146

investigation or offer him a chance to respond to its allegations. Lumbermen had contacted PSE & G on at least two occasions while Norris was still working for Lumbermen and gave it false and harmful information regarding Norris. Lumbermen did not inform Norris of these communications. After Lumbermen discharged Norris, he applied for a job with PSE & G but it did not hire him.

Procedural History

In November 1987, Norris filed suit in Massachusetts Superior Court. Norris' complaint contained three counts. Count I alleged that defendant

has intentionally breached the implied covenant of good faith and fair dealing in terminating the employment of Plaintiff in retaliation for the faithful discharge of his employment duties consistent with state and federal laws, such termination violating the dictates of public policy.

Count II alleged that defendant

has intentionally and knowingly disseminated untrue and harmful information regarding Plaintiff and his employment with Defendant thereby interfering with Plaintiff's right to contract with other employers in his chosen professional field.

Count III alleged:

Defendant, by and through the actions of its officers, employees and agents, knowingly, intentionally and tortiously wrongfully terminated the employment of Plaintiff for reasons which contravene public policy; to wit, Defendant has terminated Plaintiff in retaliation for exposing policies, practices and procedures of Defendant which impact upon the safe construction and operation of nuclear power plants, and which violate the regulations of the Nuclear Regulatory Commission, and which expose the public to substantial risk of injury and death from nuclear accidents.

Lumbermen removed the case to federal district court on the basis of diversity. 28 U.S.C. Sec. 1441. It then moved to dismiss all counts. Lumbermen contended that all three counts failed to state claims upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). It also contended that counts I and III should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1), lack of subject matter jurisdiction, because the claims were preempted by 42 U.S.C. Sec. 5851, the "whistle blower" provision of the Energy Reorganization Act. 2

The district court granted Lumbermen's motion with respect to counts I and III on the basis of preemption; on these counts, it did not reach Lumbermen's alternative argument concerning the failure to state a claim. Norris, 687 F.Supp. at 704. The district court denied the motion to dismiss count II. Id. Subsequent to the district court's opinion, the parties agreed to dismiss count II with prejudice. Thereafter, Norris appealed the district court's ruling with respect to the preemption of counts I and III by 42 U.S.C. Sec. 5851.

Norris does not allege that he reported Lumbermen's inspectional lapses to the NRC or otherwise took any action specified in Sec. 5851(a): (1) commenced or caused to be commenced a proceeding for the administration or enforcement of any requirement under the Atomic Energy Act of 1954; (2) testified or is about to testify in any such proceeding; or (3) assisted or participated in any such proceeding. Norris made complaints to his supervisor and filed reports with Lumbermen. These are known as "internal" complaints. Lumbermen argues that internal complaints are covered by Sec. 5851.

We need not decide whether internal complaints are covered by Sec. 5851 for two reasons: since we find that Norris may proceed on the basis of his state law claims, whether internal complaints are covered by Sec. 5851 is immaterial; and the statute of limitations has run as to any claim Norris might have had under Sec. 5851.

Page 1147

II. PREEMPTION

Preemption of state law on the basis of federal law derives from the Supremacy Clause of the United States Constitution. Art. VI, cl. 2. 3 Preemption may be express or implied. The Supreme Court has described the various bases for preemption as follows:

It is well established that within constitutional limits Congress may preempt state authority by so stating in express terms. Jones v. Rath Packing Co., 430 U.S. 519, 525 [97 S.Ct. 1305, 1309, 51 L.Ed.2d 604] (1977). Absent explicit pre-emptive language, Congress' intent to supersede state law altogether may be found from a " 'scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the State to supplement it,' because 'the Act of Congress may touch 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,' or because 'the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.' " Fidelity Federal Savings & Loan Assn. v. De La Cuesta, 458 U.S. 141, 153 [102 S.Ct. 3014, 3022, 73 L.Ed.2d 664] (1982), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). Even where Congress has not entirely displaced state regulation in a specific area, state law is pre-empted to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248] (1963), or where 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 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941).

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39 practice notes
  • Korslund v. DYNCORP TRI-CITIES SERVICES, No. 21603-9-III.
    • United States
    • Court of Appeals of Washington
    • 22 Abril 2004
    ...377, 92 Ill.Dec. 561 (1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1641, 90 L.Ed.2d 187 (1986); see Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1150 (1st Cir.1989). The primary authority on which the defendants rely does not support their argument. In Blackford v. Battelle Mem'l In......
  • Sickle v. Torres Advanced Enter. Solutions, LLC, No. 14-7009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 9 Marzo 2018
    ...truth or fact under 884 F.3d 350oath," and "proceeding" as "[l]egal action; litigation."); cf. Norris v. Lumbermen's Mut. Casualty Co ., 881 F.2d 1144, 1150 (1st Cir. 1989) (finding no preemption for retaliatory discharge claim because whistleblowing did not fall under "commenced, caused to......
  • Hemingway Transport, Inc., In re, Nos. 92-1040
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 31 Julio 1992
    ...to priority distribution under Bankruptcy Code §§ 503(b)(1)(A), 507(a)(1) and 726(a)(1). See Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1151-52 (1st Cir.1989) (appellate court may affirm on any ground supported by the record). As concerns Juniper's claim for CERCLA response costs p......
  • Entergy Nuclear Vt. Yankee, LLC v. Shumlin, Docket Nos. 12–707–cv (L) 12–791–cv (XAP).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 14 Agosto 2013
    ...(“It is not clear how heavily legislative purpose is to be weighed in determining preemption.”); Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1150–51 (1st Cir.1989) (interpreting the “teaching of Pacific Gas & Electric ” as requiring an analysis of a state statute's text and effect).......
  • Request a trial to view additional results
38 cases
  • Korslund v. DYNCORP TRI-CITIES SERVICES, No. 21603-9-III.
    • United States
    • Court of Appeals of Washington
    • 22 Abril 2004
    ...377, 92 Ill.Dec. 561 (1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1641, 90 L.Ed.2d 187 (1986); see Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1150 (1st Cir.1989). The primary authority on which the defendants rely does not support their argument. In Blackford v. Battelle Mem'l In......
  • Sickle v. Torres Advanced Enter. Solutions, LLC, No. 14-7009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 9 Marzo 2018
    ...truth or fact under 884 F.3d 350oath," and "proceeding" as "[l]egal action; litigation."); cf. Norris v. Lumbermen's Mut. Casualty Co ., 881 F.2d 1144, 1150 (1st Cir. 1989) (finding no preemption for retaliatory discharge claim because whistleblowing did not fall under "commenced, caused to......
  • Hemingway Transport, Inc., In re, Nos. 92-1040
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 31 Julio 1992
    ...to priority distribution under Bankruptcy Code §§ 503(b)(1)(A), 507(a)(1) and 726(a)(1). See Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1151-52 (1st Cir.1989) (appellate court may affirm on any ground supported by the record). As concerns Juniper's claim for CERCLA response costs p......
  • Entergy Nuclear Vt. Yankee, LLC v. Shumlin, Docket Nos. 12–707–cv (L) 12–791–cv (XAP).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 14 Agosto 2013
    ...(“It is not clear how heavily legislative purpose is to be weighed in determining preemption.”); Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1150–51 (1st Cir.1989) (interpreting the “teaching of Pacific Gas & Electric ” as requiring an analysis of a state statute's text and effect).......
  • Request a trial to view additional results
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