Fourth Circuit Issues Ruling Protecting Actions of Nuclear Plant Operator


On November 20, the U.S. Court of Appeals for the Fourth Circuit decided the case of Cox, et al., v. Duke Energy, Inc. et al., affirming the ruling of the U.S. District Court for the District of South Carolina’s grant of the defendants’ motion for summary judgment in a 42 U.S.C. § 1983 civil rights lawsuit, 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.”

On July 26, 2012, Robin Fleming, now deceased, flew his glider plane over Duke Energy’s H. B. Robinson Nuclear Plant, located in Darlington County, SC, causing consternation and alarm in plant personnel, the local Sheriff’s office, the Federal Aviation Administration (FAA), and Shaw Air Force Base. He was ordered to land, where he was taken into custody and charged with a breach of the peace.

Before the trial, he agreed with his own counsel’s recommendation that he waive any civil claims he might have, and the charges would be dismissed. However, he later filed a lawsuit in state court, alleging that the acts of the named defendants violated his civil rights “under color of state law.”

The case was removed to federal court, where the defendants argued that Fleming had validly waived his rights to sue local law enforcement officials, neither Duke Energy nor its officers were acting under color of law and that, in any case, the state law claims were subject to federal preemption. These arguments were successful, and the District Court granted the defendants’ motion for summary judgment.

Applying the principles from Town of Newton v. Rumery, the Fourth Circuit rejected Fleming’s arguments that he did not voluntarily waive his civil rights claims.

“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.”

The Fourth Circuit next agreed with the District Court’s conclusion that “Duke Energy and its personnel simply functioned as private actors assisting law enforcement, as any private actor would.” Duke Energy’s security personnel reported Fleming’s glider to the Sheriff’s Office after observing it flying over and circle near the Robinson Nuclear Plant, providing the  glider’s tail number. They then dispatched security team members to the Hartsville Airport “where one employee viewed the inside of Fleming’s glider and photographed it.” The Duke Energy personnel asked 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.”

The Fourth Circuit confirmed that “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.”

The Fourth Circuit rejected Fleming’s argument that when Duke Energy’s employees questioned him at the airport, the company was “act[ing] in a quasi-governmental capacity.” The Fourth Circuit noted that “Fleming makes no showing that the Duke Energy employees questioned him pursuant to a governmental request or for any governmental purpose.” Rather, it “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.”

The Fourth Circuit next rejected Fleming’s argument that an internal Duke Energy email 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.”

The Fourth Circuit confirmed that this email indicates nothing “more than the fact that Duke Energy was attempting to assist law enforcement in their efforts in connection with the incident.”

Ultimately, the Fourth Circuit concluded that “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… and the district court correctly concluded therefore that Fleming failed to state a claim against Duke Energy and its vice president under § 1983.” (Internal citation omitted).

Finally, the Fourth Circuit affirmed the District Court’s ruling that the state law claims were preempted.

“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.’ And the Court subsequently reiterated this conclusion in other cases regarding nuclear field preemption. 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.'” (Internal citations omitted).

The Fourth Circuit noted that the defendants were sued because they allegedly acted negligently when they found Fleming’s glider to be suspicious and then provided inaccurate information to the Sheriff’s Department. But their conduct, “even if tortious, was responsive to the safety concerns governed exclusively by federal law,” and ” imposing liability based on such claims would have a ‘direct and substantial effect’ on decisions designed to ensure the facility’s safety.” It went on to confirm that “Duke Energy’s suspicions reflected the risks posed by an unidentified plane with an unknown purpose circling near a nuclear facility,” including “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.”

Moreover, the Fourth Circuit found that “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.” It found that the prospect of state damage awards would chill a company like Duke Energy’s willingness to inform the authorities when confronted with “an indeterminate phenomenon potentially implicating its security.”

The Fourth Circuit went onto confirm that its conclusion that the state tort claims “fall within the preempted field of nuclear safety” is further supported by several express directives issued by federal agencies, including the FAA and the Nuclear Regulatory Commission.