PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6625
WILLIAM B. COX, Personal Representative for the Estate of Robin G. Fleming,
Plaintiff - Appellant,
and
ROBIN G. FLEMING,
Plaintiff,
v.
DUKE ENERGY INC.; J.W. BYRD, Darlington County Sheriff; JOYCE C.
EVERETT; WILLIAM GIDEON, a/k/a Randy; DARLINGTON COUNTY
SHERIFFS OFFICE; GARY STREETT,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Florence. Bruce H. Hendricks, District Judge. (4:13-cv-01456-BHH)
Argued: September 12, 2017 Decided: November 20, 2017
Before NIEMEYER, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Duncan and Judge Floyd joined.
ARGUED: John Adams Hodge, JOHN ADAMS HODGE & ASSOCIATES, LLC,
Columbia, South Carolina, for Appellant. Thomas Rush Gottshall, HAYNSWORTH
SINKLER BOYD, P.A., Columbia, South Carolina; Samuel F. Arthur, III, AIKEN,
BRIDGES, NUNN, ELLIOTT & TYLER, PA, Florence, South Carolina, for Appellees.
ON BRIEF: Sarah P. Spruill, Joshua D. Spencer, Samuel R.B. Shealy, HAYNSWORTH
SINKLER BOYD, P.A., Columbia, South Carolina, for Appellees Duke Energy Inc. and
William Gideon.
2
NIEMEYER, Circuit Judge:
When Robin Fleming flew his glider plane over the H.B. Robinson Nuclear Plant
— operated by Duke Energy Progress, Inc., in Darlington County, South Carolina — and
then began circling repeatedly nearby, plant security personnel found the glider’s
presence suspicious and notified the Darlington County Sheriff’s Office, the nearby
airport, the Federal Aviation Administration (“FAA”), and Shaw Air Force Base.
Responding Sheriff’s deputies ordered Fleming to land his glider at the airport and, once
he landed, took him into custody, arresting him for misdemeanor breach of the peace.
They held him in a cell overnight, advising him that Homeland Security and the FBI were
interested in questioning him the next morning. He was released the next day on bond.
Several weeks later, while at court for trial on the breach-of-peace charge,
Fleming, with the advice of his attorney, agreed to waive any civil claims that he might
have against the Darlington County Sheriff’s Office in exchange for dismissal of the
charge. Nonetheless, Fleming later commenced this action against Duke Energy, Duke
Energy’s vice president in charge of the Robinson Nuclear Plant, the Darlington County
Sheriff’s Office, the Sheriff, and two deputies. Invoking 42 U.S.C. § 1983, he alleged
that the defendants had violated his civil rights under color of state law, denying him the
“freedom of movement, freedom from arrest and detention, and freedom to conduct a
lawful activity,” in violation of the Fourth, Fifth, and Fourteenth Amendments. He also
alleged state law claims of false imprisonment, false arrest, negligence, and civil
conspiracy.
3
The district court granted the defendants’ motions for summary judgment, holding
(1) that Fleming had validly waived his right to sue the Darlington County Sheriff’s
Office, the Sheriff, and the deputies; (2) that Duke Energy and its vice president were
private actors not operating “under color of” state law as required for liability under
§ 1983; and (3) that Fleming’s remaining state law claims were preempted by federal
law’s exclusive regulation of nuclear safety.
For the reasons that follow, we affirm.
I
Fleming, a retired aeronautical engineer and experienced glider pilot, set off in his
glider from an airfield in Jefferson, South Carolina, on the afternoon of July 26, 2012,
from where he was “aerotowed” to an altitude of 2,000 feet and then released. During his
flight, Fleming flew over the Robinson Nuclear Plant at an altitude of approximately
1,100 feet and then flew a short distance eastward toward Lake Robinson. Once over the
lake but still near the plant, he began to circle repeatedly so as to gain altitude — a mode
of flight known as “thermalling.”
Security personnel employed by Duke Energy noticed Fleming’s glider and grew
suspicious, especially of the aircraft’s continued circling in the vicinity of the plant.
After they put the plant on “heightened awareness,” they contacted the Darlington
County Sheriff’s Office, the Hartsville Regional Airport, the FAA, and Shaw Air Force
Base. The Hartsville Airport was unaware of a glider operating in the area, and neither
the FAA nor Shaw could locate the aircraft on radar.
4
The Sheriff’s Office dispatched deputies to the airport, who, upon arriving,
directed the airport’s assistant manager to establish radio contact with the pilot and
instruct him to land at the airport. The assistant manager responded that only the FAA
had authority to issue such an order. She also spoke by telephone with an FAA
employee, who indicated that because the pilot had apparently done nothing wrong, the
aircraft could not be ordered to land. The deputies nonetheless told the assistant manager
again to order the glider to land, and she accordingly advised the pilot via radio that “the
Sheriff wanted [him] to land as soon as possible.”
Although Fleming knew that he had not entered any restricted airspace, he landed
his plane as directed and was taken into custody by the Sheriff’s deputies, who arrested
him on a misdemeanor charge for breach of the peace, advising him that the FBI and
Homeland Security wanted to interview him the next day. The deputies handcuffed
Fleming, placed him in the back of a Sheriff’s Office vehicle, and read him his Miranda
rights. By that time, Duke Energy security personnel had arrived, and they asked
Fleming whether he knew that he was flying over a nuclear power plant. Fleming said
that he did. Fleming was then taken to a holding cell, where he was kept overnight.
The next morning, Fleming met with his attorney, Gerald Malloy, whom an
acquaintance had retained on his behalf. After Malloy departed, Fleming was
interviewed by an FBI agent and an investigator from Homeland Security. At the bail
hearing that afternoon, Fleming was released on bond, having spent approximately 24
hours in custody.
5
Several weeks later, on August 21, 2012, Fleming and his attorney Malloy
attended court for trial on the breach-of-peace charge. After Fleming had been waiting
outside the courtroom for some time, Malloy came out and told him that the only way he
could get out of the case was to sign an agreement releasing the Sheriff’s Office from
civil liability. Fleming at first resisted the proposal because he felt that he had “done
nothing wrong.” Malloy responded with some agitation, stating that Fleming had made
an “incredible mess” that had prompted the “release [of] aircraft,” specifically “F-16”
fighter jets, from Shaw Air Force Base (a representation that Fleming claims was untrue
and that, in any event, is not supported by the record). Although the two discussed —
indeed, even argued — about the proposal for approximately 20 minutes, Fleming, after
giving “consideration to the alternatives,” ultimately became convinced that jurors from
the Hartsville community would feel as though the Sheriff’s Office acted appropriately to
ensure their safety and that he “would have no chance of clearing [his] name.” As he
explained:
The reason I [signed the waiver agreement] was that the trial would be held
in Hartsville, and I’m sure that the people of Hartsville would say that the
nuclear station did the right thing to, you know, have me shot down, if
necessary, because they were protecting Hartsville and [its] occupants.
And these would be the jury members. And I thought to myself there’s no
way I’m going to win this case. I’ll lose the case, pay a fine, have a
criminal record. And I took those . . . things into consideration. I said this
is the best option.
After Fleming agreed to the proposal, Malloy instructed Fleming to draft a release
himself using “whatever language [he] desired,” and Fleming handwrote a two-sentence
paragraph stating that he “accept[ed] dismissal of the subject breach of peace [charge]
6
against [him]” and “agree[d] that no legal action will be taken against Darlington County
law enforcement now, or in the future.” After Fleming signed the document, Malloy
presented it to the Sheriff’s representatives in court, and the breach-of-peace charge was
dismissed.
Some nine months later, on May 11, 2013, Fleming commenced this action in state
court against the Darlington County Sheriff and a deputy, as well as Duke Energy and its
vice president, and the defendants removed the case to federal court. Then, in July 2013,
Fleming passed away from cancer, and his personal representative, William B. Cox, was
substituted as the plaintiff in October 2013. Cox filed an amended complaint adding as
defendants the Darlington County Sheriff’s Office and another Sheriff’s deputy.
On motions filed by the defendants, the district court granted summary judgment
to all defendants. The court concluded first that none of the claims against the Darlington
County Sheriff’s Office, the Sheriff, and the deputies could proceed “because Mr.
Fleming [had] executed a valid waiver of his rights to sue them in connection with his
arrest.” In doing so, the court assessed the validity of the waiver under the factors
identified in Town of Newton v. Rumery, 480 U.S. 386 (1987), and Rodriguez v.
Smithfield Packing Co., 338 F.3d 348 (4th Cir. 2003). The court next concluded that
Duke Energy and its vice president could not be held liable under § 1983 because they
were private actors who were not operating “under color of” state law and they “were not
responsible for the state’s actions in ordering Mr. Fleming to land, arresting him, and
charging him with breach of the peace.” The court noted also that they had a duty under
federal law “to report any suspicious activity in the area around the Plant to specified
7
federal authorities and local law enforcement” and that it would thus “not be appropriate”
to treat their conduct as “state action.” Finally, the court dismissed Fleming’s state law
claims against Duke Energy and its vice president, concluding those claims were
preempted by federal law’s exclusive regulation of nuclear safety because the claims
“would have a direct and substantial effect on security decisions concerning radiological
safety levels by those charged with operating nuclear facilities.” In reaching this
conclusion, the court cited to U.S. Nuclear Regulatory Commission directives for
reporting security threats, finding that Duke Energy had “followed the applicable
guidance” in those directives.
From the district court’s judgment dated March 31, 2016, Fleming’s estate
(hereafter, “Fleming”) filed this appeal.
II
Our review of a summary judgment is de novo, and we construe inferences that
may be drawn from the underlying facts “in the light most favorable to the party
opposing the [summary judgment] motion.” United States v. Diebold, Inc., 369 U.S. 654,
655 (1962).
Fleming contends first that he did not voluntarily waive his civil claims against the
Sheriff’s Office, the Sheriff, and the deputies, claiming that he only had a short time to
consider the waiver agreement and was under duress at the time. He asserts further that
his attorney fed him “misinformation” and “browbeat[]” him into signing. Finally, he
argues that the Sheriff’s Office was pursuing “illegitimate charges” against him for the
8
purpose of avoiding civil liability and thus his waiver was the product of prosecutorial
misconduct.
The Sheriff’s Office defendants contend, on the other hand, that the record
incontrovertibly demonstrated the validity of Fleming’s waiver agreement and that the
district court properly concluded, after applying the relevant factors from Rumery, that
the agreement was valid and enforceable.
In Rumery, the Supreme Court rejected the argument that release-dismissal
agreements are “inherently coercive” because they unfairly “present a criminal defendant
with a choice between facing criminal charges and waiving his right to sue under
§ 1983.” 480 U.S. at 393. In enforcing the agreement before it, the Court held that
review of such agreements must be conducted on a case-by-case basis and that such an
agreement is enforceable, provided that it was “voluntary,” it did not involve
“prosecutorial misconduct,” and it “would not adversely affect the relevant public
interests.” Id. at 398; see also id. at 401 (O’Connor, J., concurring). In supplying the
Court’s fifth vote, Justice O’Connor noted that “[m]any factors” might bear on whether a
release-dismissal agreement is voluntary and not the product of prosecutorial
overreaching:
The knowledge and experience of the criminal defendant and the
circumstances of the execution of the release, including, importantly,
whether the defendant was counseled, are clearly relevant. The nature of
the criminal charges that are pending is also important, for the greater the
charge, the greater the coercive effect. The existence of a legitimate
criminal justice objective for obtaining the release will support its validity.
And, importantly, the possibility of abuse is clearly mitigated if the release-
dismissal agreement is executed under judicial supervision.
9
Id. at 401–02; see also Rodriguez, 338 F.3d at 353.
Applying the Rumery principles here, we reject Fleming’s arguments that his
execution of the waiver agreement was not voluntary and that the Sheriff’s prosecution of
him amounted to prosecutorial misconduct.
As to voluntariness, the record shows that during his entire consideration of
whether to sign the agreement, Fleming was represented by counsel, Gerald Malloy, who
was acting exclusively in Fleming’s best interest. Indeed, it is undisputed that when
Fleming and Malloy went to court, it was Malloy who initially conceived of the
agreement. According to the Sheriff, after Malloy met with Fleming outside the
courtroom and before trial, Malloy provided the Sheriff’s representatives with the
proposed release-dismissal agreement. As the Sheriff stated, his Office did not suggest or
demand the waiver and was prepared to proceed with trial on the charge against Fleming.
While the record indicates that Malloy advised Fleming to enter into the release-
dismissal agreement, it also shows that Malloy made sure that Fleming understood his
right to go to trial. Their discussion was relatively brief, lasting approximately 20
minutes, but Fleming never indicated that he needed more time to make the decision. To
the contrary, he recounted that during the discussion, he considered his alternatives and
ultimately resolved that executing the waiver agreement was in his best interest. He
stated further that while he continued to maintain that he had done nothing wrong, he also
believed that he would probably lose the case if he exercised his right to go to trial,
resulting in a fine and a criminal record, because he was “sure that the people of
Hartsville would say that the nuclear station did the right thing to . . . protect[] Hartsville
10
and [its] occupants.” Fleming summarized that he took all of these things “into
consideration” and concluded that signing the waiver was “the best option.”
Not only is there no indication in the record that the time Fleming had to consider
the proposal was insufficient, there is also no evidence of pressure from the opposing
side. Rather, Fleming was alone with his attorney when he reached his decision. And it
is further worth noting that Fleming, who was mature and educated, wrote the waiver in
his own hand using his own language.
Fleming contends nonetheless that the agreement should be set aside because
Malloy fed him “misinformation” and pressured him into signing the release. To be sure,
we must assume at this stage of the case that Malloy misinformed Fleming about the
scrambling of F-16s to drive home his point that Fleming had made a “mess.” But it is
clear that such a misrepresentation — if made — regarding the gravity of the situation
caused by Fleming’s glider flight could not have made his decision to sign the agreement
involuntary. Fleming stated that before he took flight, he was aware that the FAA had
instructed pilots to avoid circling near nuclear facilities and that this instruction had been
prompted by 9/11 — when airplanes were used as tools of terrorism. In addition, he
testified that once he had been arrested, he learned that his glider flight had prompted the
interest of both the FBI and Homeland Security.
Fleming also continues to maintain that the agreement was unenforceable because
he did not have adequate time to consider it and thus was unduly pressured to make the
decision to waive his rights, being faced with an imminent trial on the misdemeanor
charge. He now characterizes that pressure as duress. But if he considered the
11
imminence of trial to have placed undue pressure on him, he and his lawyer could have
requested more time to consider the proposal or could have asked for a postponement.
They did neither; indeed, the subject never entered the discussions. Rather, all the
evidence indicates that after discussing the options with Malloy, Fleming made a free and
reasoned choice, one he himself characterized as the best choice available. Moreover,
after signing the waiver, Fleming waited outside the courtroom for a half hour before he
was advised that the case was dismissed, a time during which he could have reflected
further and changed his mind. But he never did.
Relying on Rumery, Fleming also contends that prosecutorial misconduct was
involved, arguing that the Sheriff’s Office knew that the warrant for his arrest was
“invalid on its face” and that the Office “mistakenly” held him “in anticipation of
forthcoming Federal charges.” But that argument addresses the circumstances of
Fleming’s arrest and detention, not the conduct of the Sheriff’s Office in accepting the
release-dismissal agreement. Indeed, the record is undisputed that the Sheriff and his
deputies subjectively believed that the charge was legitimate, and there is simply no
indication that anyone attempted to use the charge to extract a waiver from Fleming. To
the contrary, the fact that the agreement was initially suggested by Malloy, as opposed to
any Darlington County official, strongly indicates that it was “not the product of
prosecutorial overreaching.” Rumery, 480 U.S. at 401 (O’Connor, J., concurring); see
also Rodriguez, 338 F.3d at 353.
In sum, because the record indicates that Fleming’s execution of the waiver was
both voluntary and not the product of prosecutorial misconduct, we conclude that the
12
district court did not err in determining that the release-dismissal agreement was
enforceable.
III
Fleming next contends that the district court erred in concluding that Duke Energy
and its vice president did not act “under color of” state law and therefore that they could
not be held liable under § 1983.
Section 1983 provides, in relevant part, “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983 (emphasis added). Thus,
in order to be liable to Fleming for the alleged violations of his constitutional rights,
Duke Energy and its vice president would have to be persons acting “under color of”
state law. See Wahi v. Charleston Area Medical Center, Inc., 562 F.3d 599, 615–16 (4th
Cir. 2009). “[M]erely private conduct, no matter how discriminatory or wrongful,” is
excluded from the reach of § 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). Stated otherwise, to be
sued under § 1983, a defendant “must either be a state actor or have a sufficiently close
relationship with state actors such that a court would conclude that [it] is engaged in the
state’s actions.” DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999); see also Wahi,
562 F.3d at 616 (explaining that a private entity’s activity is generally not actionable
13
under § 1983 “unless the state has so dominated such activity as to convert it to state
action”) (quoting DeBauche, 191 F.3d at 507). To be sure, when a private party exercises
sovereign power conferred on it by a government, the private party may be subject to
§ 1983 liability, see United Auto Workers Local No. 5285 v. Gaston Festivals, Inc., 43
F.3d 902, 906 (4th Cir. 1995), but a State’s “‘[m]ere approval of or acquiescence in the
initiatives of a private party’ is insufficient,” DeBauche, 191 F.3d at 507 (quoting Blum,
457 U.S. at 1004). In short, to be liable under § 1983, a party must be one “who may
fairly be said to be a state actor,” Am. Mfrs. Mut. Ins., 526 U.S. at 50 (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)), such that “the allegedly unconstitutional
conduct is fairly attributable to the State,” id.
In this case, Fleming acknowledges that Duke Energy and its vice president are
private actors who ordinarily would not be liable under § 1983. He maintains, however,
that through their conduct in connection with the events in this case, they “act[ed] in a
quasi-governmental capacity” and thereby “contributed to the deprivation of [his]
constitutional rights.” The district court rejected that argument, noting that on the day in
question, Duke Energy and its personnel simply functioned as private actors assisting law
enforcement, as any private actor would. We agree.
The record shows that Duke Energy’s security personnel reported the presence of
Fleming’s glider to the Sheriff’s Office shortly after observing it fly over and circle near
the Robinson Nuclear Plant. Those personnel also provided the Sheriff’s Office with the
glider’s “tail number.” Thereafter, Duke Energy dispatched members of its security team
to the Hartsville Airport, where one employee viewed the inside of Fleming’s glider and
14
photographed it. Once Fleming had been taken into custody, a Sheriff’s deputy asked
Fleming whether he would answer questions from two Duke Energy employees. Fleming
stated that “it depended on what the questions were.” The Duke Energy personnel then
proceeded to ask Fleming a single question — whether he knew that the facility he had
flown over was a nuclear plant, to which Fleming responded that he did.
Fleming argues that when Duke Energy provided law enforcement with
misinformation about the height at which the glider was flying (allegedly reporting that it
flew at 100 feet above the plant) and the fact that the plant was in a restricted area or a
“no-fly zone,” it contributed to the deprivation of his constitutional rights by the Sheriff’s
Office. But as the record makes clear, Fleming’s arrest and detention were effected only
by the Sheriff’s Office, not by Duke Energy or due to any request made by Duke Energy.
Moreover, Fleming’s allegation that Duke Energy employees provided misinformation
does not make the employees state actors, any more than would a witness’s erroneous
report to police of the license number of a vehicle fleeing a bank robbery.
Fleming also argues that when Duke Energy’s employees questioned him at the
airport, the company was “act[ing] in a quasi-governmental capacity,” thus subjecting it
to § 1983 liability. Yet, Fleming makes no showing that the Duke Energy employees
questioned him pursuant to a governmental request or for any governmental purpose.
Duke Energy had its own interest in the security of its plant, and obtaining information
about a person who had flown near the plant was important to that interest.
15
Finally, Fleming contends that an internal email prepared by Duke Energy
personnel demonstrates that Duke Energy was “integrally involved” in the Sherriff’s
Office’s decisions to arrest and charge Fleming. The email stated:
The control room was contacted by Security personnel regarding an
unidentified airborne craft in the area near the plant. Further investigation
and monitoring identified the craft as a glider. The tail number has been
obtained by a security officer stationed in one of the BRE towers. This
information has been forwarded to Darlington County Law enforcement to
assist in determining the crafts origin in an effort to capture and detain the
individual for further questioning. The individual has been apprehended at
the Hartsville Airport by local law enforcement personnel.
This email, however, indicates no more than the fact that Duke Energy was attempting to
assist law enforcement in their efforts in connection with the incident. It does not, as
Fleming argues, suggest that Duke Energy demanded or participated in the Sheriff’s
decision to arrest and charge Fleming. And, even if it did, a request to arrest someone
apparently posing a risk to a nuclear plant does not make the requester a state actor. The
record remains uncontroverted that the Sheriff’s Office made all of the decisions of
which Fleming complains — demanding that Fleming land at the airport, charging him
with a misdemeanor offense, and arresting and detaining him pending questioning by the
FBI and Homeland Security. Duke Energy participated in none of these decisions.
At bottom, there is no evidence that Duke Energy had the requisite relationship to
the Sheriff’s Office so as to convert its conduct into state action, see DeBauche, 191 F.3d
at 506–07, and the district court correctly concluded therefore that Fleming failed to state
a claim against Duke Energy and its vice president under § 1983.
16
IV
Finally, Fleming contends that the district court erred in concluding that his state
law claims against Duke Energy and its vice president were preempted by federal law.
The gravamen of those claims is (1) that the Duke Energy defendants acted negligently
when they deemed Fleming’s glider flight to be suspicious and then conveyed inaccurate
information to law enforcement about the glider’s movements and the restrictions on the
airspace above the plant; and (2) that this negligence was a but-for cause of Fleming’s
false arrest and imprisonment by the Darlington County Sheriff’s Office. Thus, these
state law claims would succeed or fail based on the reasonableness vel non of the Duke
Energy defendants’ conduct in communicating to law enforcement officers the security
threat that they perceived.
The district court held that these state law claims were preempted by federal law
because the conduct supporting the claims fell within a field that Congress intended for
the federal government to occupy exclusively. Specifically, the court noted that
Fleming’s claims implicated “the ability of officials at nuclear facilities to assess activity
in the airspace around a facility, to evaluate whether that activity is suspicious or
concerning, to report that activity to federal and local law enforcement, and to follow-up
to determine what, if any, risk was or is posed to the facility by the activity.” It stated
that these are matters “upon which federal regulators have provided very specific
guidance” — referring to several Nuclear Regulatory Commission directives regarding
the reporting of security threats — and that “the Duke [Energy] defendants followed the
applicable guidance” when they reported Fleming’s glider flight to the Sheriff’s Office.
17
Accordingly, the court concluded, to hold the Duke Energy defendants liable for their
allegedly negligent response to a perceived security threat “would have a direct and
substantial impact on judgments that Congress intended these operators to make
exclusively in accordance with guidance from federal authorities.”
Federal preemption of state law under the Supremacy Clause — including state
causes of action — is “fundamentally . . . a question of congressional intent.” English v.
Gen. Elec. Co., 496 U.S. 72, 79 (1990). The Supreme Court has recognized that there are
three ways by which Congress manifests that intent: (1) when Congress explicitly
defines the extent to which its enactment preempts state law (express preemption); (2)
when state law “regulates conduct in a field that Congress intended the Federal
Government to occupy exclusively” (field preemption); and (3) when state law “actually
conflicts with federal law” (conflict preemption). Id. at 78–79. In this case, the district
court relied on field preemption.
Beginning in the 1940s with the development and first use of atomic power for
energy and continuing up to the enactment of the Atomic Energy Act of 1954, the “use,
control and ownership of nuclear technology remained a federal monopoly.” Pacific Gas
and Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 206
(1983). But with the Atomic Energy Act, Congress authorized licensing for the private
construction and operation of commercial nuclear power reactors, and it ultimately gave
the Nuclear Regulatory Commission — the successor to the Atomic Energy Commission
— the authority over the licensing of nuclear facilities. The Commission’s “prime area
of concern” in exercising this authority was to ensure the “national security, public
18
health, and safety.” Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435
U.S. 519, 550 (1978) (citing 42 U.S.C. §§ 2132–33, 2201). At the same time, Congress
gave authority to the States over the economic considerations concerning the construction
and operation of nuclear plants, as well as regulation of the energy produced. See Pacific
Gas, 461 U.S. at 206–07. The Supreme Court thus summarized:
[T]he Federal Government maintains complete control of the safety and
“nuclear” aspects of energy generation; the States exercise their traditional
authority over the need for additional generating capacity, the type of
generating facilities to be licensed, land use, ratemaking, and the like.
Id. at 212.
Based on these actions by Congress, the Supreme Court in Pacific Gas concluded
that “the Federal Government has occupied the entire field of nuclear safety concerns,
except the limited powers expressly ceded to the States,” such that “safety regulation of
nuclear plants by States is forbidden.” Id. (emphasis added). And the Court
subsequently reiterated this conclusion in other cases regarding nuclear field preemption.
See Silkwood v. Kerr-McGee, 464 U.S. 238, 249 (1984); English, 496 U.S. at 82.
Moreover, it explained further that state law causes of action are subject to field
preemption when they “have some direct and substantial effect on the decisions made by
those who build or operate nuclear facilities concerning radiological safety levels.”
English, 496 U.S. at 85.
In this case, the Duke Energy defendants were sued because they allegedly acted
negligently when they deemed Fleming’s glider to be suspicious and then conveyed
inaccurate information to law enforcement about the glider’s movements, as well as the
19
restrictions on the airspace above the plant. Fleming asserts that the Duke Energy
defendants’ negligent reporting was the but-for cause of his false arrest and imprisonment
by the Darlington County Sheriff’s Office. But Duke Energy’s conduct, even if tortious,
was responsive to the safety concerns governed exclusively by federal law, see Pacific
Gas, 461 U.S. at 212, and imposing liability based on such claims would have a “direct
and substantial effect” on decisions designed to ensure the facility’s safety, English, 496
U.S. at 85. Duke Energy’s suspicions reflected the risks posed by an unidentified plane
with an unknown purpose circling near a nuclear facility. Among others, those risks
included an intentional impact with the facility and the resulting release of radiation or
possible surveillance in furtherance of a terrorist plot — especially salient threats in the
aftermath of 9/11. Until such legitimate suspicions were allayed, ultimately here through
the questioning by the FBI and Homeland Security, the entire incident implicated the
very nuclear safety concerns at the core of the field preempted by federal law. See
Pacific Gas, 461 U.S. at 212.
Moreover, subjecting the operators of nuclear facilities to tort liability for harms
like those suffered by Fleming — i.e., harms inflicted by law enforcement officers
responding to reports of security threats — would obviously affect the operators’
decisionmaking regarding the reporting of threats. Here, for example, Fleming alleged
that Duke Energy provided inaccurate or incomplete information to the Sheriff’s Office.
The prospect of state damage awards resulting from such reports could cause a company
such as Duke Energy to be hesitant to inform the authorities when confronted with an
indeterminate phenomenon potentially implicating its security, especially when the
20
company lacks the ability to control how law enforcement might respond to its report.
And such hesitation could thus compromise the responsibility of reporting threats
promptly before it becomes too late for the government to respond — a concern that is
substantially magnified in the context of maintaining the integrity of a nuclear reactor and
its attendant facilities.
A conclusion that Fleming’s state tort claims fall within the preempted field of
nuclear safety is further supported by several express directives issued by federal
agencies. For one, the FAA had issued a “Special Notice,” which, “in the interests of
national security,” advised pilots “to avoid the airspace above, or in proximity to
[nuclear] sites” and stated further that “pilots should not circle as to loiter in the vicinity
over these types of facilities.” FAA National Flight Data Center, Special Notice 4-0811.
And in a similar vein, the Nuclear Regulatory Commission had instructed nuclear facility
operators, as the district court noted without revealing specifics because of security
concerns, to report a flight they considered suspicious. See NRC Advisory 1A-06-05
(Dec. 8, 2006) (under seal in this case). While we recognize that these directives may
also support a finding of conflict preemption, we need not decide that question because
Congress has already preempted the entire field of nuclear safety, and the instructions in
these directives make clear that the concerns prompting Duke Energy to report Fleming’s
presence to law enforcement were at the heart of that field.
We thus agree with the district court that Fleming’s state law claims against the
Duke Energy defendants fell within the field preempted by federal law.
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Fleming nonetheless argues that his claims are not barred by field preemption
because they are similar in kind to those in Silkwood and English, where the Supreme
Court held that the claims before it did not fall within the preempted field. A careful
reading of those cases, however, reveals important distinguishing aspects regarding the
specific claims at issue before the Court — in Silkwood, a claim for damages based on
radiological harms caused by a nuclear accident, and in English, a retaliation claim
against a nuclear facility company that had allegedly punished an employee for reporting
safety violations. In Silkwood, the Court’s holding that field preemption did not apply to
state law causes of action “insofar as damages for radiation injuries [were] concerned,”
464 U.S. at 256, was based substantially on the existence of legislative history indicating
that Congress, in amending the Atomic Energy Act, had specifically “assumed that
persons injured by nuclear accidents were free to utilize existing state tort law remedies,”
id. at 251–52 (citing S. Rep. No. 85-296, at 9 (1957)). Relatedly, in English, the Court
reasoned that it would be “odd, if not irrational,” for Congress to have preempted
retaliation claims by those reporting safety violations at nuclear facilities given its
intention to allow tort actions for radiological harms arising from such violations as
recognized in Silkwood. See English, 496 U.S. at 86.
But the case before us does not involve injuries to individuals caused by radiation
damage or retaliation against an employee for reporting safety violations. Rather, it
involves the actions of a nuclear facility operator taken to ensure the facility’s safety by
reporting a threat it perceived from an unidentified aircraft circling nearby. Unlike the
claims in English or Silkwood, it is clear that the claims here are ones that Congress
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intended to include within the preempted field of nuclear safety. As we have explained,
Fleming’s claims — which seek to apply state tort law to regulate the good-faith
reporting of security threats to nuclear facilities — would have a “direct and substantial
effect” on the safety-related decisions of those who operate such facilities. English, 496
U.S. at 85. Accordingly, we conclude that those claims are preempted.
* * *
For the reasons given, we affirm the judgment of the district court.
AFFIRMED
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William Cox v. Duke Energy
Court: Court of Appeals for the Fourth Circuit
Date filed: 2017-11-20
Citations: 876 F.3d 625
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