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View Case Details
 
LAWRENCE CONWAY
vs.
PECO ENERGY CO.
 
Case:
CIVIL ACTION NO. 96-7284
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 
Date:
January 28, 1997, Decided
 
Attorneys:
For LAWRENCE A. CONWAY, PLAINTIFF: CLAUDIA DAVIDSON, HEALEY, DAVIDSON & HORNACK, PITTSBURGH, PA USA.
For PECO ENERGY COMPANY, DEFENDANT: MARK B. PEABODY, PECO LEGAL DEPT, 523-1, PHILADELPHIA, PA.
 
Court:
William H. Yohn, Jr., Judge
 
Author:
The Hon. Justice William H. Yohn, Jr.
 

Plaintiff, a nuclear health physics technician, brought suit in Court of Common Pleas of Philadelphia County alleging that defendant tortuously interfered with his contractual relations. The gravamen of plaintiff's complaint is that defendant falsely accused him of illegal drug use, revoked his security clearance, and gave false information or refused to give relevant information to other nuclear power plants, which then likewise refused to grant him a security clearance. Defendant removed the action to this court alleging that the claim was really one arising under federal law--specifically, the Atomic Energy Act, 42 U.S.C. SEC.. 2011, et seq. Because Court concludes that plaintiff's claims do not arise under federal law, Court lacks jurisdiction and the case must be REMANDED to state court. *fn1

BACKGROUND

Lawrence Conway, a resident of West Chester, Pennsylvania, was employed by GTS/Duratek ("GTS"), an employee supply company in Columbia, Maryland, that provides contract personnel to nuclear power stations. See Complaint at P 5. In January, 1994, GTS contracted with defendant PECO Energy ("PECO") for plaintiff to work at PECO's Limerick nuclear power plant. See id. at P 6. At Limerick, Conway was responsible for plant-wide supervision of all health physics technicians. See id. at P 8.

In February, 1995, PECO began to investigate Conway after obtaining information that he had been involved in off-site drug use. See id. at P 10. After speaking with Conway, PECO officials concluded that there was credible evidence that Conway had in fact been involved in off-site drug use, and indefinitely suspended his security clearance pending a complete investigation. See id. at P 13. GTS contacted PECO to determine why Conway's security clearance had been suspended, but PECO was unwilling to give any further information to GTS or Conway. See id. at P 14. Meanwhile, Conway traveled to Vermont to begin work on a previously scheduled contract GTS had arranged for him at the Vermont Yankee Nuclear Power Plant ("Vermont Yankee"). See id.

Due to PECO's allegations of drug use, and the revocation of his security clearance, Conway was not permitted to work "on-site" at Vermont Yankee. See id. at P 15. Nevertheless, Vermont Yankee agreed to keep plaintiff employed pending the PECO investigation. See id. When Vermont Yankee officials attempted to contact PECO to determine the basis of the allegations of drug use, PECO at first refused to discuss the matter with Vermont Yankee. See id. at P 18. Vermont Yankee officials informed Conway that if the drug allegations remained on his record, and if PECO did not restore his security clearance, he would be unable to obtain work in the nuclear power industry. See id.

After Conway's security clearance had been formally revoked, Vermont Yankee officials again tried to contact PECO officials. According to plaintiff's complaint, PECO officials told Vermont Yankee officials that Conway had admitted to off-site drug use in a written statement. See id. at P 20. Plaintiff alleges that he never signed such a statement, and that PECO officials knowingly and intentionally lied to Vermont Yankee officials. See id. PECO officials also allegedly informed Vermont Yankee officials that other employees had accused plaintiff of providing them with drugs; yet no specifics as to these allegations were ever offered by PECO officials. See id. at P 22. Despite Vermont Yankee's independent investigation which revealed no evidence to support the allegations leveled by PECO officials, the allegations made it impossible for Conway to find work in the nuclear power industry. Despite attempts to place plaintiff at various power plants, GTS was unable to acquire a security clearance for Conway due to the allegations of drug use. See id. at PP 24-25.

According to plaintiff's complaint, PECO's conduct in investigating his alleged drug activity, revoking his security clearance and refusing to provide accurate information to Vermont Yankee and other nuclear power plants, violated various federal regulations promulgated by the Nuclear Regulatory Commission ("NRC"). See id. at PP 26-32; 10 C.F.R. SEC. 26, app. A (1996); 10 C.F.R. SEC. 26.10 (1996) (requiring nuclear power plants to ensure employees are not under the influence of illegal drugs); 10 C.F.R. SEC. 26.29(b) (1996) (allowing other licensees to obtain information concerning drug testing). But plaintiff's complaint does not purport to raise a cause of action under these regulations. Instead, Conway's complaint raises two causes of action under state law; one for tortious interference with current contractual relations and the other for tortious interference with prospective contractual relations. Nevertheless, defendant removed the action to this court pursuant to 28 U.S.C. SEC. 1441 alleging that this court has federal question jurisdiction over the suit under 28 U.S.C. SEC. 1331 because of plaintiff's references to the NRC regulations.

DISCUSSION

28 U.S.C. SEC. 1441(a) provides in relevant part: "Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States . . . ." 28 U.S.C. SEC. 1441(a). Under 28 U.S.C. SEC. 1331, the federal district courts have original jurisdiction over all cases "arising under the . . . laws . . . of the United States." 28 U.S.C. SEC. 1331. Thus, a case between non-diverse parties may be removed under SEC. 1441 only if the cause of action arises under federal law. "The removal statutes 'are to be strictly construed against removal and all doubts should be resolved in favor or remand.'" Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991). It is the defendant's burden to establish the existence of federal jurisdiction upon removal. See Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985).

I. The Well-Pleaded Complaint Rule

"The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal question jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 309 (3d Cir. 1994), cert. denied, 131 L. Ed. 2d 555, 115 S. Ct. 1691 (1995) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987)). Under the well-pleaded complaint rule, the plaintiff is "the master of the claim, as generally he or she may avoid federal jurisdiction by drafting a complaint which relies exclusively on state law." Id. (internal quotations omitted). Further, a federal question does not appear on the face of a well-pleaded complaint and thus is not removable where "the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise .or that a federal defense the defendant may raise is not sufficient to defeat the claim." Franchise Tax Bd. of the State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). Thus, "a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Caterpillar, 482 U.S. at 393; see Dukes v. U.S. Healthcare, 57 F.3d 350, 353 (3d Cir. 1995), cert. denied, 133 L. Ed. 2d 489, 116 S. Ct. 564 (1995); Krashna v. Oliver Realty, Inc., 895 F.2d 111, 113 (3d Cir. 1990).

Conway's complaint does not, on its face, seek to enforce a federal right or vindicate a federal interest. Rather, plaintiff has drafted his complaint to allege causes of action created by state law--tortious interference with contractual relations. Pennsylvania follows the Restatement (Second) of Torts SEC. 766 which provides:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting from the failure of the third person to perform the contract.

Restatement (Second) of Torts SEC. 766. See Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175, 1181-82 (Pa. 1978), appeal dismissed and cert. denied, 442 U.S. 907, 61 L. Ed. 2d 272, 99 S. Ct. 2817 (1979); Maier v. Maretti, 448 Pa. Super. 276, 671 A.2d 701, 707 (Pa. Super. 1995); Windsor SEC., Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 659 (3d Cir. 1993). This state law cause of action requires plaintiff to prove, inter alia, that the defendant's interference with his contractual rights was improper. See Adler, Barish, 393 A.2d at 1182.

It appears that the plaintiff's allegations in his complaint relating to the defendant's violation of various NRC regulations were simply pleaded in anticipation of a federal defense which PECO is likely to raise. Plaintiff will attempt to show that PECO acted "improperly" under Sec. 766 of the Restatement by proving PECO officials told Vermont Yankee officials "that plaintiff was untrustworthy and unreliable, and that Plaintiff had admitted to off-site substance abuse in a written statement to PECO, all of which was known to be untrue by PECO." Complaint at P 7. Defendant is likely to claim, in defense, that it followed NRC regulations relating to investigations of drug activity, and its conduct was therefore privileged and thus not "improper." In anticipation of such a defense, Conway has made several allegations in his complaint that defendant did not, in fact, follow those regulations. Plaintiff's complaint would not be removable merely because he anticipated this federal defense. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987).

Defendant appears to argue, however, that because plaintiff has the burden of proving that PECO's conduct was improper, and because plaintiff is relying on federal standards to prove defendant's conduct was improper, "a substantial, disputed question of federal law is a necessary element of plaintiff's claims." Franchise Tax Bd., 463 U.S. at 13. To the extent defendant's argument is not subsumed by the "complete preemption" discussion below, *fn2 the argument is put to rest by the Supreme Court's holding in Merrell Dow Pharm. v. Thompson, 478 U.S. 804, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1987). In that case, the plaintiffs alleged that the misbranding of Bendectin in violation of the Federal Food, Drug and Cosmetic Act ("FDCA"), 21 U.S.C. SEC. 301 et seq., constituted a refutable presumption of negligence under state law. See id. at 805-06. In concluding that federal question jurisdiction was lacking and the case was, therefore, improperly removed to federal court, the Supreme Court held that "the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Id. at 813. Because it was conceded that Congress did not intend for private causes of action under the FDCA, Court concluded that "it would . . . flout, or at least undermine, congressional intent to conclude that the federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of that federal statute solely because the violation of federal statute is said to be a 'refutable presumption' or a 'proximate cause' under state law . . . ." Id. at 811. In other words, the same factors which generally lead a court to conclude that Congress did not intend to make a statute judicially enforceable through private enforcement will ordinarily lead a court to conclude that a federal forum is unavailable for a state law created cause of action which incorporates those standards. See id. at 810-11.

To the extent that plaintiff is simply alleging that the defendant's violation of NRC regulations constitutes proof of "improper conduct" under state law, the conclusion is the same. Despite defendant's protests to the contrary, *fn3 it is quite clear that no private right of action exists for violations of the provisions of the Atomic Energy Act plaintiff relies upon. See Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 235-39 (3d Cir. 1980), cert. denied, 449 U.S. 1096 (1981); Simmons v. Arkansas Power & Light Co., 655 F.2d 131, 134 (8th Cir. 1981); Liesen v. Louisiana Power & Light Co., 636 F.2d 94, 95 (5th Cir. 1981); Graham v. Niagara Mohawk Power Corp., 852 F. Supp. 150, 151 (N.D.N.Y. 1994). *fn4 To the contrary, 42 U.S.C. Sec. 2271(c) explicitly provides that: "No action shall be brought against any individual or person for any violation under this chapter . . . except by the Counsel General of the United States." 42 U.S.C. SEC. 2271(c); see Susquehanna Valley, 619 F.2d at 238; cf. 42 U.S.C. SEC. 2239 (rulings by the Commission are subject to judicial review under limited circumstances pursuant to the Administrative Procedure Act). It is clear, therefore, that Congress did not intend the federal courts to be available to hear cases by a plaintiff such as Conway for violation of NRC regulations relating to drug testing and security clearance investigations. Thus, even if the state cause of action is read as incorporating a federal standard as to what constitutes "improper conduct" under SEC. 766 of the Restatement, plaintiff's case does not arise under federal law and is not removable under the well-pleaded complaint rule.

II. The Complete Preemption Doctrine

Even if a case does not fall within the well-pleaded complaint rule, the Supreme Court has recognized a corollary to the well-pleaded complaint rule where "Congress . . . so completely pre-empts a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life, 481 U.S. at 63-64. The complete preemption doctrine applies when:

the pre-emptive force of [the federal statutory provision] is so powerful as to displace entirely any state cause of action [addressed by the federal statute]. Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of [the federal provision].

Dukes, 57 F.3d at 354 (quoting Franchise Tax Bd., 463 U.S. at 23)). The U.S. Court of Appeals for the Third Circuit has developed a two part test to determine whether a statute falls under the complete preemption exception to the well-pleaded complaint rule:

[First], the complete preemption doctrine applies only if "the statute relied upon by the defendant as preemptive contains civil enforcement provisions within the scope of which the plaintiff's state claim falls." . . . [The] second prerequisite for the application of the complete preemption doctrine [is] "a clear indication of a Congressional intention to permit removal despite the plaintiff's exclusive reliance on state law."

Goepel, 36 F.3d at 311. See Railway Labor Executives Assoc. v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 940-41 (3d Cir. 1988).

Plaintiff's claims do not meet this test and are, therefore, not completely preempted by federal law. Defendant, citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984) and Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev't Comm., 461 U.S. 190, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983), argues that plaintiff's claims for tortious interference with contract are completely preempted by federal law because "the federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states." Silkwood, 464 U.S. at 249 (quoting Pacific Gas). *fn5 There are several fatal flaws with this argument.

First, PECO's argument confuses the concept of ordinary preemption with complete preemption. "Complete preemption is a distinct concept from ordinary preemption." Railway Labor, 858 F.2d at 941. While ordinary preemption may provide a federal defense in a state law cause of action, it does not permit federal removal jurisdiction. See Dukes, 47 F.3d at 355. The mere fact that Congress may have the exclusive province to regulate nuclear safety does not mean that a cause of action arising under state law incorporating these standards is preempted by federal law. It is only where the federal statute or regulation both provides a civil enforcement mechanism and exhibits a congressional intent to permit removal that a state cause of action will be completely preempted. See Goepel, 36 F.3d at 311.

Second, the federal scheme which PECO claims completely preempts plaintiff's tortious interference claim does not contain "a civil enforcement provision[] within the scope of which the plaintiff's claim falls." As an initial matter, it has already been determined that the Atomic Energy Act does not contain a civil enforcement provision; rather, under 42 U.S.C. SEC. 2271(c) that power is vested exclusively in the hands of the Counsel General. But even if Congress had created a civil enforcement provision for nuclear safety, and further assuming that PECO is correct that Congress has completely preempted the field of nuclear safety regulation (a claim which is belied by the actual holding of Silkwood, see supra note 5), plaintiff's tortious interference with contract claim would not fall within the scope of the federal preemption as it does not seek to regulate nuclear safety. See Railway Labor, 858 F.2d at 942 ("If the federal statute creates no cause of action vindicating the same interest the plaintiff's state cause of action seeks to vindicate, re characterization as a federal claim is not possible and there is no claim arising under federal law . . . ."). The interest vindicated by Pennsylvania's tort for interference with contractual relations is the protection of contractual relationships from unreasonable interference by third parties. See Adler, Barish, 393 A.2d at 429. Vindication of this interest has nothing whatsoever to do with nuclear power plant safety. See also Pacific Gas, 461 U.S. at 211-12 (while the federal government controls safety, states are free to regulate the economic aspects of nuclear power).

Finally, Court is unable to discern "a clear indication of a Congressional intention to permit removal despite the plaintiff's exclusive reliance on state law." Goepel, 36 F.3d at 311. The fact that Congress did not intend private suits to be brought under the NRC regulations is a strong indication of Congressional intent to prohibit removal in such cases. See Merrell Dow, 478 U.S. at 810-11; supra note 2. Further, Congress considered the need for a federal forum under the Atomic Energy laws in 1988 when it adopted amendments to the Price-Anderson Act. See generally In re TMI Litig. Consol. II, 940 F.2d 832, 851-54 (3d Cir. 1991), cert. denied, 503 U.S. 906 (1992). While Congress chose to create a right of removal to federal court for "public liability actions arising out of or resulting from a nuclear incident," 42 U.S.C. SEC. 2210(n)(2), it left intact provisions such as 42 U.S.C. SEC. 2271 which expressly limit private litigants access to federal court. While Court is cautious in drawing conclusions from Congressional inaction, compare Johnson v. Transportation Agency, 480 U.S. 616, 672, 94 L. Ed. 2d 615, 107 S. Ct. 1442 (1987) (Scalia, J., dissenting) ("I think we should admit that vindication by congressional inaction is a canard."), with id. at 629 n.7 (Brennan, J., for Court) ("The fact that inaction may not always provide crystalline revelation . . . should not obscure the fact that it may be probative to varying degrees."), it appears in this case that Congress considered the question of providing removal jurisdiction under the Atomic Energy Act and explicitly limited that jurisdiction to actions arising from nuclear disasters. See In re TMI, 940 F.2d at 857 (noting that Congress considered the case law when it adopted changes to the Price-Anderson Act and chose to create a federal cause of action for nuclear accident claims). *fn6

It is clear, therefore, that Conway's state law claim for tortious interference with contract is not completely preempted by the Atomic Energy Act. Court thus lacks subject matter jurisdiction, and the case must be remanded to state court.

III. Counsel Fees

Court will not grant Conway's request for Counsel fees. 28 U.S.C. SEC.1447(c) provides in relevant part: "An order remanding the case may require payment of just costs and any actual expenses, including Counsel fees, incurred as a result of the removal." The trial court has considerable discretion in determining whether fees should be awarded. See Mints v. Educational Testing Serv., 99 F.3d 1253, 1260 (3d Cir. 1996); Moorco Int'l, Inc. v. Elsag Bailey Process Automation, N.V., 881 F. Supp. 1000, 1006 (E.D. Pa. 1995). At least since Sec 1447(c) was amended in 1988, the award of fees does not require a finding that the defendant acted in bad faith in removing the case. See Mints, 99 F.3d at 1260. "Congress intended the statute to serve remedial, not punitive, purposes." Shrader v. Legg Mason Wood Walker, Inc., 880 F. Supp. 366, 368 (E.D. Pa. 1995). Thus, Court must apply a "flexible" standard in determining whether to award fees under the statute. See Mints, 99 F.3d at 1260.

Although a forceful argument can be mustered that PECO's arguments supporting removal were "at best insubstantial," Mints, 99 F.3d at 1261, and that Counsel fees should thus be awarded, Court in the exercise of its discretion, will decline to award fees in this case. Questions involving federal jurisdiction can be extremely difficult, see id. at 1261, especially when complicated statutes such as the Atomic Energy Act are involved. Court therefore concludes that this is not a case where an award of fees is warranted. ORDER

AND NOW, this 28th day of January, 1997, after consideration of defendant's notice of removal, plaintiff's motion to remand, and the defendant's response thereto, it is HEREBY ORDERED that this action is REMANDED to Court of Common Pleas of Philadelphia County.

William H. Yohn, Jr., Judge

 
Notes:

*fn1 In addition to arguing that this court lacks subject matter jurisdiction, plaintiff asserts that defendant failed to meet the 30 day removal requirement of 28 U.S.C. SEC. 1446(b). The 30 day removal requirement is not jurisdictional, and is therefore waivable. See Korea Exch. Bank v. Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir. 1995) (court must distinguish between removal process which is non-jurisdictional and subject matter jurisdiction). Defendant raises a colorable claim that plaintiff waived the thirty day time limit found in SEC. 1446(b) by agreeing to an extension of the time to respond to the complaint. Nevertheless, given this court's clear lack of subject matter jurisdiction, Court will decline to address the propriety of the removal procedure.

*fn2 Justice Brennan's opinion for the Court in Franchise Tax Bd. stated that: "Even though state law creates appellant's causes of action, its case might still 'arise under' the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd., 463 U.S. at 13. The pronouncement that federal jurisdiction may lie where there is a "substantial, disputed question of federal law" as a necessary element of the cause of action appears to accord with the Supreme Court's holding in Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 65 L. Ed. 577, 41 S. Ct. 243 (1921) but stands in contradistinction to Court's holding in Moore v. Chesapeake & Ohio R. Co., 291 U.S. 205, 214-17, 78 L. Ed. 755, 54 S. Ct. 402 (1934). In Moore the Supreme Court appeared to adopt Justice Holmes' definition of arising under jurisdiction, specifically, that "[a] suit arises under the law that creates the cause of action." American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 60 L. Ed. 987, 36 S. Ct. 585 (1916).

While the Franchise Tax Bd. case seemed to signal a wider reading of the arising under language of Sec. 1331, the Court backed away from this proposition in Merrell Dow Pharm. v. Thompson, 478 U.S. 804, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1987), where Court held that "the vast majority of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action." Id. at 808. Court cautioned that Franchise Tax Bd. must be read in context and that the case "did not purport to disturb the long-settled understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Id. at 813. Instead, Court attempted to reconcile the holdings of Smith and Moore by noting that "the difference in results can be seen as manifestations of the differences in the nature of the federal issues at stake." Id. at 814 n.12. Thus, the determinative factor leading Court to conclude that jurisdiction was lacking in Merrell Dow was the fact that Congress had not seen fit to create a federal cause of action for the statute at issue in that case, which signaled that the federal interest was not "substantial" under Franchise Tax Bd. See id. at 814 ("We simply conclude that the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently 'substantial' to confer federal-question jurisdiction."); Paul M. Bator, et al., The Federal Courts and the Federal System 1020-22 (1988); Patti Alleva, Prerogative Lost: The Trouble with Statutory Federal Question Doctrine after Merrell Dow, 52 Ohio St. L.J. 1477, 1524 (1991) (noting that Merrell Dow "defines substantiality almost solely as a product of Congress' substantive remedial objectives, rather than as a product of Congress' section 1331's [sic] jurisdictional objectives . . . .").

The test for a "substantial question" under Franchise Tax Bd., as announced in Merrell Dow, however, appears to involve the same factors our court of appeals has instructed me to consider when determining whether a state cause of action has been "completely preempted" by federal law: (1) whether the federal law relied upon contains civil enforcement provisions within the scope of which plaintiff's state law claim falls and (2) whether Congress has indicated a clear intent to make the action removable to federal court. See Goepel, 36 F.3d at 311. Both tests are aimed at determining whether Congress has intended to create a federal forum for the issues involved in the state law cause of action. It seems quite probable, therefore, that the complete preemption doctrine swallows any remnants of the "substantial question of federal law" language from Franchise Tax Bd. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64, 95 L. Ed. 2d 55, 107 S. Ct. 1542 ("There is no dispute in this litigation that Taylor's complaint, although pre-empted by ERISA, purported to raise only state law causes of action. The question therefore resolves itself into whether or not the Avco principle can be extended to statutes other than the LMRA in order to re characterize a state law complaint . . . as an action arising under federal law.") (emphasis added); Goepel, 36 F.3d at 310 ("'Careful examination of the framework of Court's analysis of the "substantial, disputed question of federal law" issue' in Franchise Tax Bd. 'manifests that Court was not enunciating a new basis for federal jurisdiction but instead was reaffirming the traditional well-pleaded complaint test.' . . . Accordingly, unless we determine that one of the Goepels' state claims 'is "really" one of federal law,' . . .removal of the case to the district court was improper.").

The question of removal jurisdiction thus becomes a two fold inquiry. First, Court must ask whether state law creates the cause of action. If so, the well-pleaded complaint rule is not met. If the well-pleaded complaint rule is not met, Court must then ask whether the complaint nonetheless may be removed under the complete preemption exception to the well-pleaded complaint rule--whether the federal interest is so "substantial" that the suit "is necessarily federal in character." Metropolitan Life, 481 U.S. at 63-64.

*fn3 PECO argues that Conway does have a federal remedy pursuant to 10 C.F.R. SEC.2.206. According to PECO, plaintiff could have initiated proceedings with the NRC and the NRC could have imposed a civil fine for violation of these regulations.

10 C.F.R. SEC. 2.206 merely allows persons to "file a request to institute proceedings to modify, suspend or revoke a license, or for such other action as may be proper." 10 C.F.R. SEC. 2.206(a). It does not give persons a right to a federal remedy in a federal court. Susquehanna Valley, 619 F.2d at 238. Further, even if that provision gives the NRC the power to fine PECO for violations of regulations relating to security clearance and drug testing, the existence of a regulatory civil fine does not alter the conclusion that Congress did not intend to provide a federal judicial forum to hear cases involving violations of these regulations. Indeed, the statute at issue in Merrell Dow also provided for civil fines, see 21 U.S.C. SEC. 333(a), but that did not change Court's conclusion that federal jurisdiction was lacking.

*fn4 To the extent these cases hold that a federal forum is unavailable for torts arising out of nuclear accidents, they have been superseded by amendments to the Price-Anderson Act. See In re TMI Litig. Consol. II, 940 F.2d 832, 855 (3d Cir. 1991), cert. denied, 503 U.S. 906 (1992); see also infra note 6 and accompanying text. As discussed infra the Price-Anderson amendments apply only to cases involving nuclear incidents. Federal court relief is still unavailable for violations of other provisions of the Atomic Energy Act. See Graham v. Niagara Mohawk Power Corp., 852 F. Supp. 150, 151 (N.D.N.Y. 1994).

*fn5 It should be noted that in both Silkwood and Pacific Gas, the Supreme Court held that the state causes of action in question were not preempted by federal law. See Silkwood, 464 U.S. at 256 (state law punitive damage awards for those harmed by nuclear incidents not preempted by federal nuclear safety laws); Pacific Gas, 461 U.S. at 211-12 (Congress has not preempted right of states to regulate economic aspects of generation of nuclear power).

*fn6 A federal cause of action is created only for "any public liability action arising from a nuclear incident." 42 U.S.C. SEC. 2210(n)(2). A "public liability action" is defined as "any legal liability arising out of or resulting from a nuclear incident." 42 U.S.C. SEC. 2014(w). A "nuclear incident" is "any occurrence . . . causing . . . bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of property, arising out of or resulting from radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by-product material." 42 U.S.C. SEC. 2014(q). The regulations which plaintiff has cited to Court do not fall under this definition. See 10 C.F.R. SEC. 26, app. A. Nor do the regulations cited by the defendant. See 10 C.F.R. SEC.(s) 26.10, 73.20. Thus, the regulations which plaintiff relies upon are not covered by the removal provision in the Price Anderson Act and do not create a federal cause of action.