Transcript

IN THE SUPREME COURT OF THE UNITED STATES

GOODYEAR ATOMIC CORPORATION, Appellant, v. ESTO MILLER AND INDUSTRIAL COMMISSION OF OHIO

No. 86-1172

January 19, 1988

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:59 a.m.

APPEARANCES:

ROBERT E. TAIT, ESQ., Columbus, Ohio; on behalf of the Appellant.

THOMAS W. MERRILL, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States as amicus curiae in support of Appellant.

STEWART W. JAFFY, ESQ., Columbus, Ohio; on behalf of Appellee.

PROCEEDINGS

10:59 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 86-1172, Goodyear Atomic Corporation versus Esto Miller and the Industrial Commission of Ohio.

Mr. Tait, you may proceed whenever you're ready.

ORAL ARGUMENT OF ROBERT E. TAIT, ESQ. ON BEHALF OF APPELLANT

MR. TAIT: Thank you, Mr. Chief Justice, may it please the Court.

From appellant's perspective, the single issue involved in this case is whether the State of Ohio may be permitted to impose its safety regulations on a nuclear production facility which is exclusively owned and controlled by the United States of America, and essential to the national defense.

Very briefly at the time this action arose, the Goodyear Atomic Corporation, the appellant herein, operated a nuclear production and utilization facility located near Portsmouth, Ohio, under contract with the United States Department of Energy. This facility is one of only two of its type in the United States, and is the only facility in America capable of enriching uranium to the assays needed to power our nuclear ships and submarines. Because of the critical importance of this particular operation, Congress has mandated that the Department of Energy be the exclusive owner of all land, buildings and equipment associated with this operation, and significantly that DOE establish radiological and non-radiological safety regulations with which its contractor operators must comply.

Now, as noted in the record, the operating contract under which Goodyear operated the facility in question contained a specific provision implementing that requirement. This particular case arises out of a simple Workers' Compensation claim involving a former Goodyear employee, the appellee, Esto Miller.

In 1980, Miller fell from a scaffolding and fractured his ankle. He was paid normal workers' compensation benefits and subsequently returned to work.

QUESTION: I take it there's no doubt here, Mr. Tait, that the regular incidence of Ohio Unemployment Compensation law apply to the Goodyear Atomic plant?

MR. TAIT: There is no question, Your Honor, that in accordance with 40 U.S.C. 290, the Workers Compensation benefits, normal Workers Compensation benefits do apply to the operations of this plant and to Goodyear employees, yes.

And there has never been any question, nor has there ever been any dispute as far as I'm aware with respect to those type of benefits. The dispute arose in this case, however, because in addition to his normal workers' compensation benefits, Miller sought to hold Goodyear liable for an additional award, allegedly based upon their violation of a specific safety requirement promulgated by the State of Ohio.

Now, when he filed this application, the administrative body charged with enforcing these requirements, the Industrial Commission of Ohio, dismissed the application, recognizing their belief that it was preempted by Federal law, by the Atomic Energy Act, and by principles of Federal immunity.,

QUESTION: Not a great deal involved, was there?

MR. TAIT: No, there was not a great deal involved, and in fact there has never been a great deal involved with respect to this particular claim as a monetary matter.

However, through a mandamus action that was initiated on behalf of Mr. Miller both the Ohio Court of Appeals and the Ohio Supreme Court reversed the administrative determination because of what they perceived to be somehow a significant distinction between radiological and non-radiological hazards.

Now, what is clear from those decisions is that neither of the Ohio courts understood the issue in this case. They first and foremost refer to this operation as a power plant. It is not a power plant. They completely failed to recognize the fundamental distinction between an NRC operated power plant and a DOE-owned and controlled Federal nuclear production facility.

Thirdly and most importantly, the Ohio Supreme Court in particular failed to recognize the significance of the Federal ownership of this particular facility.

QUESTION: Well, does it make any difference that the Federal facility is being operated by a private contractor?

MR. TAIT: Your Honor, we submit that it makes no difference whatsoever. And we submit that this Court's decision in the case of Hancock v. Train should be dispositive of this case. Coincidentally, the Hancock decision involved the sister operation to the Portsmouth facility. That involved Paducah, Kentucky. Now, despite the fact that the Paducah operation does not have the same national defense and security considerations as this facility does, nevertheless, this Court in the Hancock decision reiterated the basic Constitutional doctrine that absent express Congressional authorization, such facilities are free from State regulation.

QUESTION: Was there any discussion in Hancock of how to reconcile that with Penn Dairies?

MR. TAIT: Well, Your Honor, the Penn Dairies line of cases which are raised by the appellant as a way to try to evade the Hancock immunity in this case, seems to me to involve three different areas of inquiry. First of all, the majority of those cases involved contractors that were providing goods and services to the Federal Government as opposed to actually involved with the day to day operation of a Federal facility, in effect, surrogate Government employees.

Secondly, with the exception of the New Mexico tax cases, I'm not aware that any of those matters involved a nuclear facility or facilities that had any national defense input.

Thirdly, and perhaps most significantly, however, the Penn Dairies line of cases it seems to me creates a distinction between an impact upon the expense or cost of the Federal operation of the facility as opposed to the day to day conduct of that facility. And I think that's an important distinction.

QUESTION: What if this were a third party tort action under State law not involving an employee. Is that somehow preempted in your view also?

MR. TAIT: Well, it would seem to me that the question would become the extent of the effect of the action on the operation of the facility itself. I suppose if you have an action where an employee, for instance, is in the parking lot of the facility and somehow gets run over by a forklift operated by a Goodyear employee, then there is perhaps a question of whether or not the immunity that was established by this Court in Hancock can apply.

However, in this particular instance --

QUESTION: What's your answer?

MR. TAIT: I suppose my answer, Your Honor, is that it depends on the particular circumstance how far the Federal immunity applies. It is dependent upon the affect on the operation, on the affect of the Federal function. If in fact the State law --

QUESTION: Well, the effective of a State tort action is generally in a sense regulatory. If the contractor has been operating negligently, the State tort action will cause the behavior to change.

MR. TAIT: If in fact the basis behind the State tort action is contractor operation that is basically in compliance with how the Federal Government has instructed him to operate. And therefore would provide some sort of chilling effect on how he operates the facility. And I guess our position would be that the immunity would apply to that contract because it would go to the very heart of the Federal function.

In this particular case, however, we don't have that difficult a situation as far as we're concerned. What you have are literally thousands of pages of safety requirements promulgated by the State of Ohio, enforced by an Agency of the State of Ohio in which they are requiring a Government contractor to comply.

QUESTION: Mr. Tait, to add on to Justice O'Connor's question, what if there was a Federal Statute that said State tort law shall apply, notwithstanding otherwise applicable Federal immunity. Then would you still have to say it depends on the circumstances?

MR. TAIT: Well, if I interpret the Hancock decision correctly, Your Honor, if in fact there is specific Congressional authorization of the type of State activity that is attempted to be imposed on the facility, then that expresses the Federal Government's Congressional intent to allow that type of application.

QUESTION: Well, here we don't have a statute that says State tort law shall apply. We have a statute that says State Workmen's Compensation laws apply.

MR. TAIT: That's correct.

QUESTION: And at the time that statute was enacted, as I understand it, what, one-seventh of the States' Workmen's Compensation laws had a provision like this.

MR. TAIT: That's correct.

QUESTION: You say that they regulate the activity rather than they're just monetary. Well, in a way, they just increase the cost to the Government, and I'm not sure that's a valid way to distinguish the cases that respondent's come up with. Your client can just roll along and pay more money in Workmen's Compensation, I presume, and disregard the State requirements, couldn't it? You're only talking money.

MR. TAIT: As a practical matter, Your Honor, I don't think that's possible. If you have a client who is willy nilly disregarding safety requirements, it seems to me in this day and age, that the first thing you're going to have is tremendous labor difficulties where the union is going to say the employer is not encouraging employee safety. In fact, the employer is engaging in activities that fly in the face of employee safety.

QUESTION: And your response would be that the Supreme Court didn't say we have to obey these State rules. The Supreme Court only said that we have to pay the Workmen's Compensation.

MR. TAIT: It seems to me that if we would so respond, Your Honor, that's small solace for the union, nor is it going to help our labor difficulties at all.

QUESTION: if you rely on the labor situation, would it not be possible independently of a State requirement for the labor union to negotiate a contract which contained a provision that the employer would agree to abide by State regulations even though not compelled by State law to do so. That I suppose would be permissible under --

MR. TAIT: It seems to me that that's permissible, Your Honor, but again, we would argue that first of all that was certainly something that was not contemplated by the Congress when they passed the Atomic Energy Act, which requires exclusive control.

QUESTION: Well, Mr. Tait, isn't there a Code of Safety, a Federal Code, that your client has to abide by?

MR. TAIT: Yes, Your Honor. The important distinction is in fact that the safety regulations which are applied to this plant by reason of the Atomic Energy Act are specifically promulgated by the Department of Energy. These safety regulations which the Department promulgates are applicable to these facilities, this small number of facilities. Congress so intended in the Atomic Energy Act.

OSHA has recognized that their requirements do not apply to these facilities by reason of the Atomic Energy Act. And we submit that if you have such a recognition by another entity of the Federal Government that certainly the State of Ohio's requirements --

QUESTION: Well, the question is what Congress intended.

MR. TAIT: Absolutely.

QUESTION: I suppose if there was some real conflict between a State regulation and this Federal code, I suppose the Federal code would be supreme. But this regulation that was violated here, State regulation, --

MR. TAIT: Scaffolding regulation.

QUESTION: Scaffolding regulation, that is not inconsistent with any provision --

MR. TAIT: The scaffolding regulation itself is not inconsistent with any Federal regulation. They're clearly are regulations again in this three volumes and thousands of pages of regulations that are inconsistent with Department of Energy Regulations, and with which this operation, as I understand it, simply could not economically comply.

But the point I believe, Your Honor, as this Court has recognized in International Paper and in Garment and in many of the cases is that where you have an effect, in effect serving two masters, that it creates some sort of chaotic regulatory scheme and invites conflict. And even if we were to leaf through these entire pages of regulations and point out this regulation being in conflict having to do it on a case by case basis necessarily negatively impacts on the way this operation is conducted.

QUESTION: Well, I take it you say that absent this permission to apply the State Workmen's Compensation Act, it would be clear that the State could not regulate anything here.

MR. TAIT: That's correct.

QUESTION: And you say that this provision of with respect to the Workmen's Compensation Act wouldn't really change that.

MR. TAIT: Section 290, yes, Your Honor. And if I may, the United States is going to address that issue more completely and I would like to reserve the remaining time for rebuttal, if I might.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Tait.

We'll hear now from you, Mr. Merrill.

ORAL ARGUMENT OF THOMAS W. MERRILL, ESQ. - AS AMICUS CURIAE IN SUPPORT OF APPELLANT

MR. MERRILL: Thank you, Mr. Chief Justice, and may it please the Court.

The initial question in this case as Mr. Tait has discussed is whether the doctrine of Hancock v. Train applies to a State that seeks to enforce its specific safety regulations at nuclear --

QUESTION: Did Hancock v. Train involve anything like Section 290 here?

MR. MERRILL: Hancock v. Train involved what was I think a closer question, Mr. Chief Justice, which whether Section 118 of the Clean Air Act constituted specific authorization to the State of Kentucky to regulate a Federal facility, such as Paducah production plant. And the language of Section 118 was if anything much more of a clear authorization on the part of Congress permitting State regulation than Section 290 is.

QUESTION: But if we affirm the judgment here, it doesn't seem to me we're authorizing blanket regulation of these facilities by the State of Ohio. We're simply saying the State of Ohio can impose a Workmen's Compensation judgment one half times again because of violation of its safety regulations. We know that it can impose the initial workmen's compensation award by 290.

MR. MERRILL: That's correct, Your Honor. I would emphasize however that at some point, you have to draw the line in determining what a workmen's compensation law is. The relevant language of Section 290 simply authorizes States' workmen's compensation laws to apply on Federal property and facilities.

The appellees in this case have conceded that a new provision in the Ohio Statute added in 1986 that allows the Ohio Industrial Commission to issue mandatory orders to employers requiring that they comply with specific safety regulations could not be applied to the Portsmouth Fuel Production Plant. That by itself suggests that the mere fact that the State has labeled something a workmen's compensation law or has instructed its Industrial Commission to enforce the law is not enough. You have to ask the question of what Congress had in mind.

QUESTION: I might also suggest that circumstances alter cases. We don't have that case before us, we have this one.

MR. MERRILL: That's correct.

QUESTION: I'd also suggest that one-seventh of the States didn't have that kind of a provision at the time this adoption of the workmen's compensation law was enacted by the Congress.

MR. MERRILL: That's correct, Justice Scalia. And in many cases, the existing legal landscape or the state of the law in effect at the time that the Congress passes a statute is a relevant consideration to look to in deciding what Congress must have meant.

But we would submit that there are several aspects in the background of the language and the legislative history of Section 290, which strongly suggest that Congress did not have any but the narrowest purposes in mind when they enacted that particular statute.

First, let me address a more general issue which is raised by the appellee's reliance on another Federal Statute and which I think is also relevant in understanding Section 290, and which has not been adequately brought out in this case because the issue really only arose when the appellees filed their brief.

The appellees referred to a statute 16 U.S.C. 457 as being relevant to this case. That statute authorizes the application of state wrongful death and personal liability law on property which is subject to the exclusive jurisdiction of the United States.

This particular statute is irrelevant, utterly irrelevant to this particular case because it only applies in Federal enclaves, areas that are subject to the exclusive jurisdiction of the United States. The Portsmouth Gasification Plant is not a Federal enclave. When the Atomic Energy Commission purchased the site in 1952, it did not take the necessary steps to insure that the property would be subject to exclusive Federal jurisdiction, and so by its terms, Section 457 does not apply to the Portsmouth Plant.

More fundamentally, Section 457 does not go to the question of Federal immunities, the question which is at issue in this case and presented by the Hancock decision, 457 concerns the question of the scope of state territorial jurisdiction over Federal property. And Section 457 simply says that any objection to the territorial application of State wrongful death and tort law is waived, but it does not waive any Federal immunities.

For example, in this Court's recent decision in Westfall v. Irving arose out of a tort allegedly committed at an Army depot which was a Federal enclave. The only reason State tort law applied in Westfall at all was because of Section 457, but no one in that case contended that Section 457 constituted a waiver of any immunity that the Federal employees had. And in fact, this Court recognized that if the employees were conducting a discretionary function, they would be immune from any such tort action.

So there's a distinction between territorial jurisdiction and immunities, and Section 457 only addresses the former claim.

QUESTION: Mr. Merrill, may I just ask in that connection, supposing there were a suit by one employee against another arising out of some charge of negligence in the plant. That could be decided as a matter of State law, I suppose?

MR. MERRILL: Yes. Yes, Your Honor, or a third member of the public entered the property and was tortiously injured, State law would govern. Not because of Section 457 because this is not a Federal enclave but simply because the application of tort law in such a way that it would not constitute a regulation of the facility itself would not trigger the Hancock type Federal facilities immunity.

QUESTION: Well, suppose a member of the public slips and falls as he comes in and says it was just unsafely maintained. Now, that certainly has something to do with how the place is kept up in Justice Steven's hypothesis. And your answer is still the same, I take it?

MR. MERRILL: Well, Justice Rehnquist, we think it's a more difficult question. It would present a much more difficult question to what extent the application of ordinary tort principles or State negligence law represents a regulation of a Federal facility, as opposed to simply a regulation of a private dispute between two parties or a regulation of a contractor's relationships to its employees.

In some situations, we think that it would be in effect a regulation of the facility. For example, if the predicate for the action was the fact that the defendant had allegedly violated a specific State safety regulation and that was constituted per se negligence. We think that would really be no different from the application of a specific safety regulation in this case.

But those difficulties in line drawing with respect to tort actions aren't really presented in this case, because here you have a specific State safety regulation which is clearly regulatory in its effect, and its application, we think, triggers the Federal facilities immunity.

Let me turn then to Section 290, and the reasons why we in particular think that Section 290 should not be read as authorizing the application of the State safety regulations in this case.

First of all, the problem that gave rise to the enactment of 290 was real a problem very much like that addressed by Section 457. That is, it was a question of territorial jurisdiction, and specifically, the Golden Gate Bridge was being constructed in California, and both ends of the bridge, private contractors had to perform work on Federal enclaves. And this Court had recently held in a case called Murray v. Gerrick, Section 457 was not broad enough to authorize the application of State workmen's compensation laws on Federal enclaves. And because of that decision, a number of insurance carriers were resisting the payment of workmen's compensation claims for people injured in the construction of the Golden Gate Bridge.

So the immediate problem that gave rise to the enactment of Section 290 was a territorial jurisdiction problem, it was not a Federal immunities question. To be sure, Section 2 is drafted more broadly than Section 457. It does not simply apply to enclaves, it applies to all Federal property. But given that there's no suggestion in the history that Congress was thinking beyond the question of territorial jurisdiction, we think that the Court should be reluctant to construe that statute as in effect a waiver of a Federal facility immunity, such as the type recognized in the Hancock case.

Second, there is a specific legislative history in the enactment of Section 2980 that addresses the question of State safety regulations,. The version of Section 20 that initially passed the House provided that no only State workmen's compensation laws but also State safety and insurance laws would apply to Federal buildings and projects.

The Senate amended the bill by deleting this particular reference to State safety and insurance laws. And the Senate report specifically observed that the reason for the deletion was that these provisions were objected to by procurement agencies of the Government inasmuch as such provisions would not only produce conflicts of authority between State and Federal officers, but would also mark a wide departure from the well established principle that Federal officers should have complete charge of any regulations pertaining to Federal property.

The House then acceded to the Senate's amendment. And that history, we suggest, is strongly probative of the fact that Congress had no intention when it enacted 290 of waiving any immunity objection to the application of State safety regulations to Federal facilities.

Finally, as if to underscore the narrowness of 290, Congress added a proviso to the Statute expressly reaffirming, "by the passage of this section, the United States of America in no wise relinquishes its jurisdiction for any purpose over the property named, with the exception of extending to the several States within whose exterior boundaries such place may be, only the powers above enumerated relating to the enforcement of their State workmen's compensation laws."

Now, again, this does not define what State workmen's compensation laws means, but it does strongly suggest, we think, that Congress did not intend Section 290 to be used as a vehicle for enhancing State regulatory control over Federal property.

Putting together the background of Section 290, the text and the legislative history, we think that as a matter or ordinary statutory construction the correct conclusion to draw would be that that statute does not authorize the application of anything more than traditional State workmen's compensation laws to Federal facilities. However, this Court's decision in Hancock requires even more.

As stated in the companion case of EPA v. Water Resources Board, Federal facilities are subject to State regulation only when and to the extent that Congressional authorization is clear and unambiguous. And whatever can be said about Section 290 as a matter of ordinary Statutory construction, we think it's plain that it can't pass this more exacting standard.

If there are no further questions.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Merrill.

We'll hear now from you, Mr. Jaffy.

ORAL ARGUMENT OF STEWART R. JAFFY, ESQ. ON BEHALF OF APPELLEE

MR. JAFFY: Mr. Chief Justice, and may it please the Court.

As an employee in the State of Ohio, I'm covered by the Ohio Workers Compensation law. I'm covered as an attorney during my work. I would be covered if I worked in a factory. I would be covered if I worked for the Goodyear Company, which is an Ohio Corporation, and I would be covered if I worked for Goodyear Atomic, which is a subsidiary of the Goodyear Corporation. And in fact, the appellant and the Solicitor General concede that Mr. Miller, the person who was injured in the industrial accident, is covered under the Ohio Workers Compensation Law, and covered pursuant to 40 U.S.C. Section 20. No argument on that part of it.

What the appellant would like to do is to carve out part of that Ohio Workers Compensation law, persuade you that in fact it is not really workers' compensation, and tell you for that reason it does not enjoy the protection of 40 U.S.C. Section 290. I'm going to discuss with you today a little bit of the facts of the case, some of the history that will explain to you how it is that this provision for additional compensation was placed into the Ohio Constitution and provides this additional compensation to injured workers in Ohio.

In addition to that, I will discuss some statutory interpretation with you.

As is probably clear to you, Mr. Miller, while working for Goodyear Atomic, was engaged in maintenance work. he was not doing radiological work. He was standing on top of a manually propelled scaffold or high horse ladder, as it's called. The ladder is such that it may be lowered to the ground, it may be raised to a height of sixteen feet. It has a platform on the top of it, and there's a guard rail so that a person does not unwittingly fall off.

What really happened was that Mr. Miller needed to lower he ladder. In order to do that, he first had to lower the guard rail. Now, there he is in a squatting position on the ladder starting to lower the guard rail, and what happened was that a projection from the rail, a bolt that protruded, caught the glove that he was wearing, pulled him off balance, he fell to the ground, fractured his ankle, injured his heel.

Now, no argument that it happened, no argument that it's covered under Ohio Workers Compensation Law, no argument that in fact Goodyear Atomic is a complying employer under the Ohio law. Goodyear pays premiums to the State of Ohio for workers compensation coverage.

And in fact when this accident happened, Goodyear certified the claim. They said to the State of Ohio, yes this happened, yes this man is covered, yes he should be paid the money. And Mr. Miller was paid worker's compensation. He received because he was off work 29 weeks, the sum of $258 a week.

After he returned to work, he was awarded another type of Ohio's worker compensation and that is called a disability award because he still had some residual disability. And so he received another 16 weeks of worker's compensation at the rate of I think it was $83 a week. And then he applied for this award that's the subject of the case here today. An award that is called an additional award where there is a safety violation. The additional award is provided under the Ohio Constitution.

I'll discuss the history of it with you in a moment. But so that you understand, our Constitution says, if the industrial Commission determines there is a safety violation and that it caused the accident, the Industrial Commission may award no less than 15 percent of what had been paid to this man by way of workers compensation, no more than 50 percent of what has been paid to this man by way of workers compensation, so that the additional award is I think tied into the whole worker's compensation program.

What you have in front of you today is a case that involves as a minimum to this claimant, something like an award for additional compensation of $1328. The record in this case that was filed in this Court cost more than the minimum award.,

The maximum award that this individual may receive is $4439. And that's what we're involved with. Now, how do we get to the additional award, how did the State of Ohio provide for it.

If I were that employee working in Ohio in 1900 and I got hurt in 1900, I would have sued Goodyear Atomic for my injury. I had a common law suit is what it amounted to. By 1921 Ohio changed the procedure. And Ohio wasn't the only state that changed that procedure, and I may say a few of these things about worker's compensation because I assume that you're not familiar, and there's no reason for you to be familiar with worker's compensation. They're State matters traditionally.

But in 1912, Ohio provided by its constitution, vote of the people, for a worker's compensation program. They were much like many other States. All states were going through this process of adopting workers compensation programs. So that there was created a State Industrial Board and the purpose of it was to pay compensation where a person was injured because everybody recognized the old system didn't work. We had become some type of an industrialized society by then. But there was in that Ohio Constitution in 1912, a provision which retained the right to sue at common law, the right to sue that employer where in fact the injury occurred because the requirements dealing with the preservation of life or safety had not been met by the employer.

So here I am in 1912. I, the employee, have a right at common law to sue. And it stayed that way in Ohio from 1912 until 1923 because people figured out by 1923 that it was not a good idea to permit the suit, that it really didn't serve the purpose intended by workers' compensation. And in 1923, our Constitution was amended, and it is that amended that we're considering here today. Because in 1923, the right of the worker to sue was taken away, and it was replaced by this additional award which is in front of me today.

QUESTION: I take it that you're convinced that this is compensatory and not regulatory in view of the history you've recited?

MR. JAFFY: Yes, sir. I think the history demonstrates that this is compensatory. I think it is designed by the State to pay the worker who is injured. I think in fact when you look at it, you come to recognize that the State has provided a certain amount of compensation for just a plain injury.

QUESTION: Well, Mr. Jaffy, would this be a different case at all if the safety standard at issue for the additional award were one that were contrary to the particular applicable safety standard adopted by DOE?

MR. JAFFY: I don't think it would be a different issue. I think it would be the same issue. I have to emphasize of course and I'm certain the Court understands, in this instance the safety requirement is virtually identical.

QUESTION: I understand that.

MR. JAFFY: There's no difference.

But if there were a difference, let's assume that for the moment which is your question, I don't think it would make any difference. Ohio, in fact, is saying, you, Mr. Miller, have been hurt as a result of overlooking this particular requirement. If in fact that's so, you're going to be paid additional compensation because we look to this situation as being a situation of some culpability on the part of the employer.

Now, Goodyear Atomic in that situation, same assumption, conflict of provisions, Goodyear Atomic is entitled to do what I think Goodyear Atomic was entitled to do anyway, which is to totally disregard if it so chooses, what it is that the State of Ohio has provided by way of a safety requirement. What triggers anything in Ohio is the fact that there has been an injury.

Goodyear Atomic --

QUESTION: There has to be a violation, too, Mr. Jaffy, and that's what I'm a little bit hung up on. I have no problem in light of Section 290 of applying the workmen's compensation law by its terms. The trouble is that the Ohio Workmen's Compensation law does not apply and does not provide the added amount unless the employer is within the terms of the compensation law, in violation of a safety rule of the Industrial Commission.

So to find that this employer is within that provision of the Compensation law, I also have to find that the employer was violating a safety rule of Ohio, which means, it seems to me, I have to find that he was subject to the safety rule of Ohio.

Isn't that what the Statute says?

MR. JAFFY: So that you and I are both perfectly clear, I don't think you have to make a finding on whether there is a violation or not. I think where this case is right now is a question of may the State of Ohio proceed to make a determination that there has been a violation, and if in fact, it so finds, may it then award additional compensation.

QUESTION: Well, and don't we also have to find that this employer can be in violation of Ohio's regulatory laws, or can we let Ohio say he's in violation, when he isn't?

MR. JAFFY: Justice Scalia, if I may, I think what you need to find is that Congress provided by 40 U.S.C. 290 that State workers' compensation laws are applicable. I think the Statute is very clear. I think it is a situation where Congress has spoken, and I think it is entitled so to speak, and I think it is entitled to make a change.

QUESTION: I'm willing to say they are applicable, but they only apply if he is in violation of the State law. That's all Congress said. You can apply them but you have to apply them by their terms. This one says he has to be in violation of Ohio law. That raises a totally separate question having nothing to do with the Workmen's Compensation law. Is this employer in violation of the Ohio safety laws?

MR. JAFFY: I don't think it raises a separate question, because all that Ohio does, if it determines that the injury is due to the safety requirement not having been followed, all that happens is that compensation is paid to Mr. Miller. Goodyear might choose to do absolutely nothing, other than pay. Goodyear may decide that they couldn't care less that this particular safety requirement of Ohio. Goodyear may never again have to pay anything because no one is ever again hurt in Ohio.

Goodyear came to Ohio, Goodyear Atomic came to Ohio and that plant opened in 1953. And from 1953 through 1980, with these thousands of pages that the attorney for the appellant says exist, Goodyear was never called on to pay any additional compensation. There was never any injury.

And I might add to you, there are not thousands of pages, either. The pages for the factory and workshops safety provisions in Ohio number some approximate 230 pages. They are not all those volumes that were exhibited to you.

This is actually the Ohio Factory and Workshop Provisions. Goodyear, when that claim was filed, Goodyear advised the State of Ohio that it followed the Ohio Safety Requirements. You will find that in the record at page J-43, is the response of Goodyear. They have followed our Ohio requirements. Apparently, they didn't have any trouble following our Ohio requirement.

And so there we are. And as I say, I look at this case and say, I think, it's really a question of did Congress permit this. It seems to me the Statute is clear. And I have to disagree with some of the comments made by the Solicitor General as to the history of that particular statute and as to its significance.

And I think it all goes back to 16 U.S.C. 457 when Congress passed 457, it remitted a tort action, and there were courts, as you probably understand, who felt that 16 U.S.C. 457 applied to Workers' Compensation. Until this Court decided Murray v. Gerrick & Co., and kind of threw up in the air the question of, was workers' compensation covered, there had been decisions that said workers' compensation was covered under 457. So that had we without even getting to 290, had we had just 16 U.S.C. 457 which applied to workers' compensation, Mr. Miller would have had his claim covered, as permitted by Congress.

QUESTION: Mr. Jaffy, you referred us to the letter of Goodyear about this incident as the Joint Appendix at 43.

MR. JAFFY: Yes, sir.

QUESTION: That letter refers to the fact that the scaffold had been inspected by the Safety Department and found to be in satisfactory condition. Do you know whether that refers to the Ohio Safety Department or the Company Safety Department?

MR. JAFFY: It refers to the Company Safety Department.

QUESTION: I see. They were not routinely inspected by the Ohio safety inspectors.

MR. JAFFY: No.

If I might say, not only was the ladder inspected by the Company safety department, you will find in there, and I think it's at JA-50, a report from the Union safety representative who also inspected that particular scaffold.

So that this Court understands, the parties entered into a stipulation of fact, if there's a question, for example, as to the involvement of the security interests of the United States, these parties entered into a stipulation of fact as to what happened. Goodyear provided pictures of the scaffold so that the State of Ohio could see what the scaffold looked like. There was an accommodation, if you will, of --

QUESTION: No on site inspection of the plant by the Workmen's Compensation people?

MR. JAFFY: No, no on site inspection. And it may very well be that to some extent that makes it difficult for the claimant to establish what happened, because in Ohio, the burden is on the claimant to show that the claimant is entitled to the compensation. Nevertheless, that's the claimant's problem. That's not in front of you today.

The point that I make is that it is possible and in fact the parties did make accommodations in connection with this matter.

By the time the case got to the Industrial Commission, the Department of Energy had come in, they raised a pre-emption argument, and it may very well have been the first time that kind of an argument has ever been raised to the Ohio Industrial Commission, and they backed off. Both of our Courts, the Court of Appeals, and the Supreme Court, were in favor of granting a mandamus or that the Industrial Commission go forward and make a determination in this matter, and from there, your Court noted probable jurisdiction, and we're here today.

If you look at it in terms of the statute, it seems to me that 290 was and is written about as broadly as a statute could be written. And you can almost see the Congressional people trying to write it in such a fashion that should this Court come to grips with this problem again, the Court would understand that the intent of the Congress is to permit workers' compensation to be paid as the State would provide. And the language they use is in the same way and the same extent.

And they have started out in such a fashion that it's about as broadly written as anything could be when they say whatsoever authority the State is authorized to handle workers' compensation has the authority to proceed with this matter.

QUESTION: Mr. Jaffy, I think what the Government's position would be is that in the same manner and in the same extent simply means this, that where a person is not in violation of a State regulation, he should not be assessed the surcharge. And they claim that this particular contractor is not within the meaning of the Ohio Workmen's Compensation law, in violation of any State regulation, because those State regulations do not apply.

Now, are you maintaining the position that the regulations are applicable, that the Ohio authority has power to regulate plant?

MR. JAFFY: No, sir. I do not say the Ohio Industrial Commission has power to regulate. I say the Ohio Industrial Commission has power to pay the compensation to the person that got hurt.

QUESTION: But it's only payable if the person's in violation of a regulation. That's the way the compensation law reads.

MR. JAFFY: It is a way of explaining or trying to explain that there is this requirement. It's much different, Justice Scalia, then let's say we brought a suit, and we argued that this was negligence per se that had occurred here, because there is a State statute that says this is a particular requirement. There isn't any real difference. That's exactly the same situation here. The State has tried to protect the work place safety of people, and they have tried to do it in this fashion, and all that happens is, with this particular section we're talking about or this particular safety section, it has provided that the exposed surfaces are not supposed to have any sharp edges, burrs or protruding parts. Which is virtually the same as the OSHA standard.

And in fact, it had a protruding part and the man got hurt. And when the union representative made his safety inspection some six or seven months later, the protruding part was still there. It had not changed. Goodyear had not done anything with it, and they didn't have to do anything with and no one from the State of Ohio came in to make them do anything with it.

The only thing the State said was, okay, if in fact, this violating is here, there's going to be some money paid to this man. One of the things the Solicitor General talks about in his brief is that the State may provide for compensation but they can't just go throwing it out. We're not going to enrich this person, we can't give him more than full compensation.

And I don't really know what full compensation is, but if you look to what Ohio does, Ohio basically gears its compensation on a person's salary. It has a limit which is 66-2/3rds percent of the individual's salary. It also has a limit which is a statewide maximum so regardless of how much you make, you cannot receive more than whatever is the statewide maximum.

If in terms of 66-2/3rds percent, it's based on wages, there is no provision for pain and suffering that the individual may have had, there is no provision for loss of consortium, strictly limited to wages. Now, if you add in the additional compensation which is this award, and I've tried to say to you, this is all one package of workers' compensation, let's say you add in the maximum of 50 percent of what has been paid in workers' compensation. If you take the 66, and you take 50 percent of that, the State is going to award another 33 percent, bringing you up to roughly 100 percent of the person's wages.

That the State of Ohio has considered full compensation. It seems to me that this is not just throwing money away to a claimant has been hurt, it is a legitimate effort of the State to pay a little more where there is culpability on the part of the employer, it is something that the employees of the State have given up by way of their giving up the right to go into Court and sue. And that was the trade off. They gave up the right to go into Court and sue in return for having the Industrial Commission make the particular awards.

The appellant here, and the Solicitor General, would agree that the basic compensation may appropriately be paid under 290, but they want to carve out the additional compensation. Nevertheless, they still want to retain the right of not being sued by the employee, which is what that 1923 amendment provided.

QUESTION: Mr. Jaffy, can I just clear up a couple of things in my own mind. Would you agree that Ohio could not impose a penalty payable to the State for a safety violation of this kind?

MR. JAFFY: Yes, I think that I would agree to that.

QUESTION: So to that extent, the regulations are preempted. And they also could not close down the plant, or deny them the opportunity to operate as they did in the Hancock case?

MR. JAFFY: Yes. There's no question about closing down the plant, and very frankly, I think that's the key element with the Hancock case and it involved more, as I'm sure you know, more than just an AEC operation. When the State of Kentucky decided that they were going to impose a permanent requirement, they affected the Army in Kentucky, the affected the TVA in Kentucky and they affected the AEC in Kentucky. And the bottom line of what they were saying was, it doesn't matter.

Let me go back one second. Congress provided that the State had authority under the Clean Air Act to make provisions dealing with pollutants of the air. When Hancock hit this Court, you were in the situation of looking at it and saying, it doesn't matter if the Army, the TVA, and the AEC are in compliance with all of Kentucky's requirements on clean air. If they don't get the permit, they will be shut down. And basically I read Hancock to say that -- I don't think Hancock applies to our situation at all -- I read Hancock to say that there is no way any State may shut down an operation of the Federal Government.

And I hasten to add, Justice Stevens, that the State of Ohio makes no moves in those directions. All that we have involved here today is we pay the man the additional money.

QUESTION: Let me ask you one other question. You showed us the size of the regulations. I imagine the Federal Regulations are probably just about as big, I don't know. But what is the sanction for violating the Federal regulation of this kind? What remedy is the Federal?

MR. JAFFY: There is nothing paid to the claimant, number one. In other words, Congress has made no provision for any kind of a Federal remedy for violation of the OSHA regulations.

QUESTION: Well, not OSHA, but there's special regulations, not OSHA regulations, but regulations related to this particular plant as I understood it, or at least to nuclear facilities.

MR. JAFFY: They have authority in connection with the radiological aspects to provide regulations.

QUESTION: But don't they also provide safety regulations for the non-radiological aspects of the operation?

MR. JAFFY: The legislation permits them, the legislation permits them to adopt. They in fact proceeded to adopt the OSHA regulations.

QUESTION: Oh, I see, the OSHA regulations do apply.

MR. JAFFY: Yes, as to non-radiological aspects, okay. And there is no provision under OSHA for any kind of a remedy to the person who is hurt, no Federal remedy, in other words. And I guess what I'm saying is that there is a presumption that where the Federal Government has not provided for a remedy to the person who is injured that the State remedies would apply.

QUESTION: We'd have no problem here of course, and I assume the Government would concede the case -- I assume the Government would -- if the Ohio provision read that this surcharge is applicable if someone violates a specific safety rule of the Industrial Commission or of any other Governmental entity which may have jurisdiction. Presumably, Ohio could do that, and if it read that way, I guess the Government would agree with you that the surcharge is chargeable, which means Ohio would look to see whether there had been a violation of OSHA or not.

MR. JAFFY: Well, we may be making this more complicated, Justice Scalia, than we need to.

QUESTION: Well, we tend to do that.

MR. JAFFY: And very frankly, I have to apologize, I'm not certain that I at all understand the distinction that you're trying to make. Our provisions for State requirements are requirements adopted by the Commission or requirements adopted by our State Legislature.

QUESTION: Well, what I'm saying is I think it would be unfortunate if this thing sort of falls between the cracks, that is to say, if it didn't violate the Ohio provision, but did violate OSHA, surely there ought to be a surcharge applicable. And I assume Ohio could write it that way. It could say, if you violate our standards or the standards of any other governmental entity that's applicable, we're going to hit you with a 15 percent or whatever surcharge.

MR. JAFFY: I think if the State of Ohio were to adopt the OSHA regulations as part of their safety requirements, what you're saying is 100 percent correct. Ohio has not done that. I might say unfortunately, they haven't done it, but they haven't, and that's the status of where we are today.

The Industrial Fabricators case which is in the Appendix which was a Federal District Court case coming out of our Southern District of Ohio, involved an argument which in some ways parallels this because the employer there was arguing that the additional safety award should not be paid because it conflicted with OSHA. The Federal District Court didn't agree with that. The Federal District Court indicated, I thought very clearly, that our additional compensation is a compensation matter, primarily. While it may have some incidental effects in terms of causing an employer, if you will, to clean up his act, that's not the primary purpose of our Ohio law.

And I think that case, and the Ohio Supreme Court cases that have been cited, indicate this.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Jaffy, your time has expired.

Mr. Tait, you have two minutes remaining.

ORAL ARGUMENT OF ROBERT E. TAIT, ESQ. ON BEHALF OF APPELLANT

MR. TAIT: Thank you very much, Mr. Chief Justice.

Very quickly, I'm having a little bit difficult time comprehending where Mr. Jaffy's coming from with respect to first of all, telling this Court he agrees I assume pursuant to the Hancock doctrine, Ohio would not have the authority to impose fines for violation of a specific safety requirement. At the same time indicate that they have the authority to order an employer to pay compensation to an employee.

Clearly, the primary basis behind the specific safety requirements promulgated by the State of Ohio are to promote safety. No one questions that and the Attorney General on behalf of the Industrial Commission concedes that fact, that the primary basis of those requirements are to promote safety through regulation of employer conduct.

Now, assuming that you take that as a given, and I don't think that you can simply ignore the practicalities of it --

QUESTION: Well, Mr. Tait, what about Justice Scalia's question. Supposing Ohio changed its statute and said that you get the extra money if you violate either a State law or if it's been preempted, a Federal regulation that is applicable to that facility. That would be permissible, wouldn't it? And if that's the case, you're not fighting about much because the legislature of Ohio car correct it very promptly.

MR. TAIT: Mr. Justice, I believe that pursuant to Hancock, that decision is placed in the hands of Congress. Hancock says that where you have a Federal facility --

QUESTION: No, no. My question is what if the Ohio legislature passes such a statute?

MR. TAIT: Yes. But I believe that the answer to that question, and I assume it's the answer that the United States would maintain is that that decision whether to impose for violations --

QUESTION: No, it's not fines, it's additional compensation.

MR. TAIT: -- of Federal facilities, or for violation of Federal safety regulations is within the hands of Congress.

QUESTION: And that now Congress has said there shall be no remedy for such a violation?

MR. TAIT: Congress has given the Department of Energy, and the Department of Energy has promulgated its own regulations, a pervasive scheme and a pervasive scheme of remedies.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Tait.

The case is submitted.

(Whereupon, at 11:54 a.m., the case in the above-entitled matter was submitted.)