Norris v. Lumbermen's Mut. Cas. Co.

• Decision Date: 29 April 1988
• Docket Number: Civ. A. No. 87-3002-H.
• Citation: 687 F. Supp. 699
• Parties: Richard David NORRIS, Plaintiff, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

687 F. Supp. 699

Richard David NORRIS, Plaintiff, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, Defendant.

Civ. A. No. 87-3002-H.

United States District Court, D. Massachusetts.

April 29, 1988.

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

Kalvin M. Grove, Fox & Grove Chartered, Chicago, Ill., Thomas D. Burns, Burns & Levinson, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

HARRINGTON, District Judge.

Procedure

This case arises from a civil action which Plaintiff originally brought in Plymouth Superior Court, and which Defendant removed to federal district court. The Complaint has three counts. Count I sounds in contract and alleges that "Defendant ... intentionally breached the implied covenant of good faith and fair dealing in violation of public policy, by terminating the Plaintiff's employment in retaliation for the faithful performance of his employment duties." Count II alleges wrongful interference with contractual relations.

Count III is a tort claim for wrongful discharge. It alleges that Defendant wrongfully terminated the Plaintiff's employment for reasons related to nuclear safety, which contravene public policy.

Defendant has filed motions to dismiss Counts I and III, pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, lack of subject matter jurisdiction, on the ground that the claim was preempted by Section 210 of the Energy Reorganization Act, 42 U.S.C. Section 5851, commonly referred to as "the whistleblower provision." See English v. General Electric Company, 683 F.Supp. 1006 (E.D.N.C.1988) (1988 WL 30288). When confronted by a motion to dismiss, a Complaint must be construed in the light most favorable to the Plaintiff and its allegations taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404, reh'g. denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969).

In the alternative, Defendant moves to dismiss Counts I and III pursuant to Fed. R.Civ.P. 12(b)(6), for failure to state a claim on which relief can be granted. Defendant also moves to dismiss Count II under Rule 12(b)(6). For reasons discussed below, the Court grants Defendant's motion to dismiss Counts I and III on grounds of preemption, but denies Defendant's motion to dismiss Count II.

Statement of Facts

Defendant Lumbermen's Mutual Casualty Company ("Lumbermen's") is a corporation which provides insurance and inspectional services to nuclear power plants located in the United States. Plaintiff held the position of the Northeast Regional Manager, SISS. As Regional Manager, Plaintiff was responsible for establishing and implementing inspectional procedures, for securing clients in the Northeast Region; and for providing direct inspection and audit services to Lumbermen clients.

In April, 1985, Plaintiff investigated a complaint regarding reactor pressure vessels for the Vogle Nuclear Power Station ("Vogle").¹ Plaintiff determined that Defendant's inspector had been negligent in his original inspection, and Plaintiff reported this to his supervisor, Mr. Muise ("Muise"). In mid-1986, Muise ordered Plaintiff to have a supervisor delete this information from the inspector's appraisal report, in anticipation of litigation against the Defendant corporation.

In June, 1986, Plaintiff initiated an inquiry regarding a former employee of Defendant, who worked as an inspection trainee at Seabrook Nuclear Power Plant. Although Plaintiff made findings about the trainee's activities at Seabrook which the Plaintiff determined warranted a full investigation. Defendant advised him to discontinue the inquiry, which he did.

The following December, Plaintiff objected to Muise about a change in an inspection procedure. Plaintiff believed the procedure would have identified defects such as those which were missed in the 1981 Vogle incident. Although the Plaintiff made an internal complaint, he did not pursue the matter further.

In March of 1987, the Public Service Electric and Gas Company ("PSE & G") hired Lumbermen's to conduct an audit at the Salem Nuclear Power Plant. Plaintiff conducted the audit with Lumbermen's knowledge, in his capacity as an employee of the Defendant.

In May of 1987, Defendant's Internal Security Division initiated an investigation of Plaintiff's audit activities at PSE & G. The investigation concluded that Plaintiff's activities at PSE & G constituted a conflict of interest, resulted in Plaintiff's personal financial gain, and had been engaged in without Defendant's consent or knowledge. The investigation also concluded that Plaintiff had submitted fraudulent expense vouchers and time sheets between January, 1985 and March, 1987. Plaintiff's Complaint alleges that the charges concerning his PSE & G activities are untrue, and that Defendant encouraged him to misreport expenditures.

On at least two occasions, Defendant contacted PSE & G to disclose false and harmful information regarding Plaintiff's job performance, while Plaintiff was still employed by the Defendant. The Defendant did not, however, inform the Plaintiff about its investigation of him or about its communication with PSE & G. PSE & G subsequently denied plaintiff a position with their firm, after he was discharged by Defendant.

Preemption

The thrust of Defendant's argument is that Counts I and III are preempted, and if they are not preempted, then the complaint fails to state a claim on which relief can be granted. Counts I and III of Plaintiff's Complaint allege a breach of contract and a tortious act based upon a retaliatory firing 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 (`NRC'), and which expose the public to substantial risk of injury and death from nuclear accidents." Defendant argues that these are state claims, which are preempted by the Supremacy Clause. U.S. Const. Art. VI, cl. 2.

Preemption applies "when it is clear, despite the absence of explicit pre-emptive language, that Congress has intended, by legislating comprehensively, to occupy an entire field of regulation and has thereby left no room for the States to supplement federal law ..." Animal Legal Defense Fund v. Provimi Veal Corp., 626 F.Supp. 278, 282 (D.Mass.), aff'd., 802 F.2d 440 (1st Cir.1986) (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984)) (citation omitted). The field of nuclear energy is comprehensively regulated by the Atomic Energy Act of 1954, 42 U.S.C. Section 2011, et seq., and thus, the federal government maintains "complete control of the safety and `nuclear' aspects of energy generation ..." Pacific Gas and Electric Company v. Energy Resources & Development Commission, 461 U.S. 190, 212, 103 S.Ct. 1713, 1726, 75 L.Ed.2d 752 (1983). The Court, in Pacific Gas and Electric stated that:

State safety regulation is not pre-empted only when it conflicts with federal law. Rather the Federal Government has occupied the entire field of nuclear safety concerns, except the limited power expressly ceded to the states. When the Federal Government completely occupies a given field or an identifiable portion of it, as it has done here, the test of preemption is whether "the matter on which the State asserts the right to act is in any way regulated by the Federal Act."

Pacific Gas, 461 U.S. at 212-213, 103 S.Ct. at 1726-1727 (citation and footnote omitted).

Section 210 of the Energy Reorganization Act ("ERA") of 1974, 42 U.S.C. Section 5851 provides a remedy for employees who believe they have been terminated or otherwise retaliated against for making safety complaints concerning the construction or operation of nuclear power plants.² Although the First Circuit has not yet considered the question, there is disagreement among the other circuits regarding the application of Section 5851 to internal complaints, i.e., one in which the NRC is not involved. Three circuits have determined that Section 5851 applies to employees who have been discharged for making internal complaints to their supervisors regarding nuclear safety and quality control. See Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir.1985), cert. denied, 478 U.S. 1011, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir.1983). In contrast, the Fifth Circuit has held that internal complaints are not covered by Section 5851. Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.1984).

The first step in construing a statute is to read the plain language. Section 5851(a)(3) states that no employer may discharge an employee or otherwise discriminate against any employee "... who assisted or participated or is about to assist or participate in any manner in such a proceeding under the Act or in any other action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended." (emphasis added). Plaintiff argues that the phrase, "or in any other action," relates back to the word "proceeding," and therefore, necessarily implies the participation of the employee and the agency in formal proceedings for this statute to apply. He further argues that a specific, such as "proceeding," would not ordinarily be followed by an all-encompassing generality such as "any other action." Although in the abstract this argument has merit, it is defeated by a review of the accompanying NRC regulation, which provides that employee activities are "protected even if no formal proceeding is actually initiated as a result of the employee assistance or participation." 10 C.F.R. Section 50.7(2) (1985). "Regulations are controlling and entitled to great weight if reasonable." Kansas Gas, 780 F.2d at 1512 (citing Donovan v. Hahner, Foreman, and Harness, Inc., 736 F.2d 1421, 1425 (10th Cir.1984)). The statute, in conjunction with the...