EPA took various adverse actions against him because he engaged in activity that the federal statutes protect. A Department of Labor Administrative Law Judge (ALJ) consolidated the complaints and, after a hearing, recommended that Lewis's complaints be dismissed. Lewis appealed. We agree with the ALJ's recommendation and dismiss Lewis's complaints.

lack of research into the harmful effects of pathogens released during sludge fertilization. CX 59-60, 120-21.

    In 1998, Lewis served as an expert witness in a wrongful death case, Marshall v. Synagro, in which a young man's death due to breathing difficulties was blamed on sludge fertilization near his home. CX 82, RX 145. Lewis produced two reports. One concluded that the dust and gaseous emissions from the sludge-fertilized land likely caused the young man's death, and the other pointed out flaws in implementing Rule 503, noting that using bio-solids as fertilizer could result in harm to the public's health. CX 82, TR at 134-35.

   These reports and Lewis's subsequent testimony prompted Synagro Technologies, Inc., a national sludge fertilization company, to publish a "White Paper," Analysis of David Lewis's Theories Regarding Bio-solids, that was highly critical of Lewis and his theories and research on Rule 503. RX 68. The paper asserted that EPA did not sponsor Lewis's bio-solids theories, and that sound science did not support his opinions. Id. Synagro e-mailed the paper to numerous people in the bio-solids industry and to EPA employees, including John Walker, a pay grade GS-14 physical scientist in EPA's Office of Waste Water Management (OWWM), who was also a spokesman for Rule 503 implementation. TR at 796-806.

    In September 2001, Walker spoke to attorney Carol Geiger about land application of bio-solids. TR at 779. Geiger represented Southern Waste, Inc., another sludge fertilizer company, and was preparing for a Dawson County, Georgia public hearing on banning bio-solid sludge fertilization. CX 94. Geiger told Walker that Lewis was scheduled to speak at the hearing. TR at 779. Walker forwarded the White Paper to Geiger and also sent her a letter on EPA letterhead stating that EPA had no evidence that applying sludge fertilizer in accordance with Rule 503 was unsafe and that a majority of the scientific community believed that Rule 503 was based on sound science. CX 94, TR at 776. He also forwarded the White Paper to others inside and outside EPA. CX 96, TR at 1196-97. Lewis spoke at the hearing. So did Geiger who had also given the White Paper and Walker's letter to the Dawson County Board of Commissioners on the day of the hearing. RX 8 at 8, TR at 206. Franklin County, Georgia, held a similar meeting in October at which Southern Waste presented the same information. CX 29 at 8-15.

EPA Policy About Disclaimers and Clearance

    EPA has specific ethical guidelines for employees who engage in activities that are "along the lines" of their scientific work but not part of their official duties. JX 1 at 60-64. Employees who take on outside speaking, writing, or teaching engagements may refer to their EPA employment, but they must also provide other biographical data and state in disclaimers that they are acting as private citizens, not as EPA employees. Id.

    The disclaimers that EPA employees use vary according to the type of document and public appearance – project report, journal article, book chapter, technical

conferences, hearings – and generally cover the extent of EPA involvement and endorsement. RX 132 at 12-15. Most disclaimers point out whether EPA funded or approved the document or appearance and note that EPA does not endorse or recommend any commercial applications. Id.

    EPA also has detailed procedures governing the publications its scientists write. RX 132. Scientific articles and papers undergo one or more types of review. For an article prepared for a journal that provides its own peer review, NERL managers would approve publication (though not necessarily agree with the views expressed) after that review. However, if the author is part of ERD, like Lewis, NERL would approve publication prior to the journal's peer review. JX 1.

    EPA sometimes conducts an internal peer review of an article rather than, or in addition to, a journal's peer review. CX 145. The guidelines for the coordinator of an internal peer review are specific. The reviewers should not have a vested financial interest in the article under review or other conflicts of interest, should not aggressively criticize the author, should be technically competent in at least one of the subjects of the article, should maintain a formal record of reviewing materials, should not consult outside sources without the author's permission, and should not release critical comments to a third party. CX 145 at 55-59, TR at 325. Internal peer reviewers do not decide if an article is publishable, but the article's author must either rebut critical comments or incorporate them in his or her work. JX 1 at 47-49. And sometimes scientific or technical articles are subject to an informal review rather than, or in addition to, a peer review. TR at 525-26. These reviewers can have conflicts of interest and usually have valid objections. Id. Lewis's practice was to obtain informal reviews from such persons to build his own credibility. TR at 528-30.

Lewis's Publications

    Along with his expert witness activities, Lewis wrote a research article, Adverse Interactions of Irritant Chemicals and Pathogens with Land Applied Sewage Sludge. This article documented illnesses stemming from sludge fertilization and concluded that the link between it and public health risks "should be thoroughly investigated with epidemiological studies." RX 43. Lewis wanted Lancet, a prestigious medical journal, to publish the article. TR at 317.

    In May 2001, following EPA policy, Lewis submitted the article to his supervisor, Frank Stancil, and requested an expedited clearance review. RX 73, TR at 318. He also sent the paper to several others for review, including Dr. Harvey Holm, an ORD research director, and Dr. James Smith, chair of the EPA's Pathogens Equivalency Committee, which evaluated new sewage sludge treatment processes. CX 84, TR at 167-68, 621-22, 630-31. Smith's supervisor ordered a peer review of Lewis's article, which Holm then coordinated. RX 47, TR at 648-51, 1229-34.

    Smith involved Walker in the peer review. TR at 1234-35. Walker skimmed the Adverse Interactions article and passed it on to Dr. Patricia Millner, a microbiologist at the U.S. Department of Agriculture for her comments. RX 52, TR at 759-60, 814. He then used her comments without attribution and added his own conclusion that "the methodology including the evidence and analysis as presented are significantly flawed and do not support the conclusions." RX 55, TR at 1139, 1154-55. Walker disseminated his review to his managers and the other reviewers, noting in a cover letter that the article was "poor quality" and "alarmist." RX 55, TR at 1180-81.

    Meanwhile, Lancet rejected the article, noting the need for an epidemiological study with a control group and suggesting that Lewis submit it to a specialty journal instead. RX 190 at 2, TR at 352. Following the rejection, Lewis revised the article, which EPA cleared for publication, and submitted it to the on-line journal Environmental Health. RX 83- 84, TR at 890-92.

    In February 2002, Lewis wrote a second article, Risk from Pathogens in Land Applied Sewage Sludge, which he intended to submit to Environmental, Science & Technology Journal. RX 88, TR at 389, 894. At ERD, where Lewis worked, his second-line supervisor was Rosemarie Russo, the deputy ethics official with whom employees must consult before engaging in outside activities. JX 1 at 60. Because of the policy implications in the article, Russo sent a copy to Jewel Morris of ORD's National Exposure Research Laboratory for review. RX 90.

    Morris wanted Lewis to change the disclaimer on the Risk from Pathogens article to emphasize that although EPA had approved the article for publication, it did not reflect the views of EPA and "no official endorsement of the opinions expressed . . . should be inferred." RX 93, TR at 902-05. Initially, Lewis did not agree with this disclaimer, and Morris suggested an alternative that stated, "the views expressed in this paper are those of the authors and do not necessarily reflect the views or policies of the EPA." RX 103. In the end, Morris and Lewis compromised on a disclaimer for both the revised Adverse Interactions and the Risk from Pathogens articles. TR at 418.

Lewis's Other Activities

    In addition to writing articles and acting as an expert witness on Rule 503, Lewis made several public appearances starting in February 1998 when he presented his bio-solids research at the annual meeting of the American Academy for the Advancement of Science. CX 121-22. He discussed his theory that pathogens survive longer in the oils and greases of bio-solids and, when these bio-solids are applied to land in sludge fertilization, they pose a risk to human health. TR at 118-20. Lewis's abstract of his presentation led to an article in Science News which discussed his criticism that Rule 503 did not address this risk. CX 120. And from December 1998 until December 2000, Lewis, with EPA's permission, contracted with the Steris Corporation to speak at conferences on germ sterilization issues in the dental industry, for which he was paid $78,150.00. RX 32-33; TR at 495-97.

    Following discussions with staff members of the U. S. House Science Committee, Lewis also testified at a hearing on March 22, 2000, which addressed whether the EPA, in managing Rule 503, failed to foster sound science with an open exchange of ideas and whether EPA harassed scientists and intimidated private citizens who criticized the sludge rule and the science supporting it. CX 59, TR at 150-57. Subsequently, EPA commissioned the National Academy of Sciences to study the legitimacy of the scientific bases of Rule 503. CX 46, 140 at 29. And in April 2000, Lewis presented his bio-solids research at the National Science Conference and called for further research on the gaseous emissions from sludge fertilizer and their potential for harmful health effects. CX 140 at 24-25, TR at 1103-06.

    Then, in November 2001, after speaking at the Dawson and Franklin County public hearings, Lewis presented "scientific data that were not supportive" of Rule 503 at a conference at Boston University. RX 106. Lewis orally disclaimed that he was not speaking on behalf of EPA. TR at 404-05. Subsequently, the University asked Lewis to prepare an abstract of his presentation. TR at 406. The abstract was posted on the University's web site without a disclaimer or ERD review. RX 106.

Case History

   Lewis filed whistleblower complaints with the Department of Labor's Occupational Safety and Health Administration (OSHA) on October 15, 2001, and September 23, 2002. CX 81, 83. He contends that EPA violated the employee protection provisions of the six aforementioned statutes when it retaliated against him because he criticized Rule 503 in his articles and public appearances. Id. After investigating, OSHA concluded that Lewis's complaints lacked merit. RX 15. Lewis objected to OSHA's findings and requested a hearing before an ALJ. The hearing took place on March 4-7 and April 8-11, 2003. R. D. & O. at 2. As noted earlier, the ALJ concluded that EPA did not violate the employee protections and recommended that Lewis's complaint be dismissed. R. D. & O. at 65-66. Lewis appealed to this Board.

The Legal Standard

   The ALJ assumed that Lewis engaged in protected activity and that EPA was aware of his activities. R. D. & O. at 54. The record supports a finding that Lewis reasonably believed that the scientific basis for declaring sewage sludge fertilization safe was flawed and that further investigation of the possible risks to human health was necessary. R. D. & O. at 3-46. Thus, Lewis engaged in CAA-protected activity when he expressed his concerns about sludge fertilization and Rule 503 in his various writings, speeches, and testimony. In doing so, he was furthering the purposes of the CAA. And since Lewis communicated those beliefs to EPA, EPA knew about his protected activity. Thus, we find that Lewis proved by a preponderance of the evidence that he engaged in CAA-protected activity and that EPA knew about this activity.

    B. Adverse Actions

his committee to participate, and one of them suggested that Walker also review the article. TR at 1231-35.

   On July 11, 2001, Walker submitted his comments to Smith. RX 55. Walker concluded that the evidence and analysis presented in Adverse Interactions were "significantly flawed and do not support the conclusions." Id. At the hearing, Walker admitted that, except for his conclusion, what he had written were not his findings and opinions but were Dr. Patricia Millner's, a microbiologist at the U.S. Department of Agriculture, to whom he had given Lewis's article. RX 53, 65, TR at 1142-51. Walker also sent his plagiarized comments to other reviewers, along with a cover letter labeling the article "poor quality" and "alarmist." RX 55, TR at 1153-55, 1180-81. That same day, Lewis received the reviewers' comments, including Walker's, and agreed to send Smith a revised manuscript. RX 56, 80; TR at 352-53. Meanwhile, Lancet rejected the article on the grounds that epidemiological studies and a control group were needed to support the conclusions. RX 190, TR at 552-53.

   Also in July 2001, Synagro's vice president O'Dette submitted affidavits in the Marshall case describing two meetings with Walker at which they discussed Lewis's anti-sludge activities and Walker's comments on Adverse Interactions. CX 106-07. Lewis received copies of these affidavits and asked EPA's Office of Inspector General (OIG) to investigate Walker's selection as a peer reviewer, alleging that he was not qualified to be a technical reviewer and had a conflict of interest because of his pro-sludge stance. TR at 228-44, see CX 109.

   Given these facts, Lewis claims that EPA violated its policy and procedures when, despite the Lancet review, it conducted an internal peer review and permitted Walker, a pro-sludge advocate and aggressive critic of Lewis's research, to participate in the internal process. Lewis claims that EPA's disregard of its own policy forced him to seek quick publication of the revised Adverse Interactions article in a less prestigious, on-line journal. Also, Lewis claims that in retaliation for his activities against Rule 503, EPA permitted Walker's conclusion that Lewis's research was "significantly flawed" to become known in the academic and pro-sludge communities to the detriment of Lewis's reputation.

    The ALJ found that Walker "blatantly violated" EPA's peer review policy and that Smith should not have included Walker in the review. Nonetheless, the ALJ found that Lewis offered no evidence of any tangible job consequence resulting from these violations. He found that Lancet's decision not to publish was based on its own review, and that other reviewers were also critical of Lewis's article. RX 50-51. The ALJ concluded that EPA's actions regarding the peer review process were not adverse because they did not result in any consequence to Lewis. R. D. & O. at 57.

   Lewis argues on appeal that the ALJ ignored the fact that the public and other scientists have access to peer reviews of scientific articles. Thus, the ALJ failed to consider the harm that EPA's disregard of its procedures inflicted on Lewis's professional credibility. Lewis contends that EPA refused to refute the tainted peer

review and, by allowing it to remain in the public record, permitted Synagro, the World Environment Federation, and other pro-sludge activists to use it to destroy Lewis's ability to function as an internationally renowned scientist. According to Lewis, the tainted peer review is equivalent to a negative job performance evaluation from EPA. Complainant's Brief at 16-24.

    EPA argues that the tainted peer review was not adverse action for several reasons. First, Lewis's supervisors had nothing to do with the technical peer review that Smith initiated and therefore did not take adverse action against Lewis. Second, Lewis cannot claim adverse action because he himself asked Smith to let other "appropriate individuals" at EPA review the article and stated in a June 19, 2001 e-mail that he would incorporate any suggestions that Walker, among others, might have regarding the paper. Third, EPA did not disseminate the tainted peer review to the public. EPA asserts that Lewis himself attached Walker's comments to his first whistleblower complaint, which OSHA forwarded to Synagro, at its request, during discovery proceedings. Therefore, EPA contends, it took no adverse action that was detrimental to Lewis's employment or reputation. Respondent's Brief at 9-22.

    The ALJ concluded that Lewis's claim regarding the peer review was actionable under the continuing violation doctrine. R. D. & O. at 52-53. As we have discussed, that theory is no longer viable. Rather, an employee must file a complaint within thirty days of the date of a discrete adverse action or of the date that the employee became aware of such action.

    Lewis's claim that EPA's tainted peer review was adverse action is not actionable because the discrete acts comprising this claim occurred more than thirty days prior to his filing of the October 15, 2001 complaint. Lewis knew in July 2001 that Walker, a well-known pro-sludge advocate, had inappropriately participated in the peer review of Adverse Interactions because Lewis had received the reviewers' comments, including Walker's, and had responded to Smith in an e-mail. Further, Lewis asked the OIG in July 2001 to investigate Walker's role in the peer review process. RX 196. Also, Lewis knew in August 2001 that Walker had shared his views about Lewis's article and activities with Synagro's O'Dette because Lewis had copies of O'Dette's July 2001 affidavits submitted in the Marshall case. RX 61. Therefore, because Lewis filed his complaint containing this claim in October 2001, which was more than two months after learning of Walker's participation and actions, the tainted peer review claim is not actionable.

   2. Distributing the Synagro White Paper

    Synagro responded to Lewis's participation as an expert witness in the Marshall wrongful death lawsuit with a 26-page attack on his theories and reputation as a bio-solids researcher. RX 68. The Synagro White Paper stated that Lewis did not have the fundamental bio-solids training and experience needed to establish valid links between sewage fertilization and human health effects. It alleged that he used faulty and insufficient data to develop his theories, failed to identify specific pathogens, relied on

biased anecdotal reports to support his conclusions, and misrepresented the work of other bio-solids researchers and regulators. The White Paper also stated that EPA did not sponsor Lewis's bio-solids activities, that no court of law had accepted him as an expert, and that no peer review of his work and writings on bio-solids had been done.

   On September 21, 2001, Robert O'Dette, Synagro's vice president of government relations, e-mailed a copy of the White Paper to people who worked in the bio-solids industry and at EPA, including Walker, who had played a significant role in developing EPA's Rule 503, which regulates application of bio-solids to land. RX 67. Walker was also the quality assurance and control manager for the Office of Waste Water Management (OWWM). As such, he evaluated some EPA documents prior to public dissemination and responded to public inquiries about Rule 503. And, as noted previously, on September 24, 2001, Walker e-mailed the White Paper to several other people inside and outside EPA, including Geiger, the attorney representing Southern Waste, another bio-solids company. CX 96. Geiger then circulated copies of the White Paper at the Dawson County, Georgia public meeting concerning sludge fertilization and indicated that the White Paper had come from EPA. TR at 213-15. In his private capacity, Lewis spoke at the meeting, defending his theories to an audience of industry representatives, faculty from the UGA, and the public. TR 572-74.

   Lewis reported to EPA's OIG that Walker had distributed the White Paper. OIG investigated. RX 172-73. Subsequently, OWWM's deputy director, Alfred W. Lindsey, counseled Walker about his "poor judgment" in forwarding the White Paper to those outside EPA because his action could be interpreted as an EPA endorsement of Synagro's obviously biased views about Lewis. RX 174. On December 11, 2001, Lindsey instructed Walker to (1) have his supervisors clear beforehand any written or electronic correspondence concerning Lewis that he provides to outsiders, and (2) clarify to the attorneys representing Southern Waste that EPA does not approve or endorse Synagro's White Paper. RX 175.

    Lewis claims that by disseminating the White Paper to the pro-sludge forces, Walker and EPA officials collaborated against him because of his views about the health risks of sludge fertilization. Post-Hearing Brief at 148. According to Lewis, the fact that sludge companies like Southern Waste got the White Paper from EPA gave its conclusions credibility and harmed his reputation among those attending the public hearings. Furthermore, Lewis asserts that EPA should have consulted him about the discipline Walker received and should have informed the public at large that it did not endorse the White Paper. Id. at 149-151.

    The ALJ concluded that Walker's distribution of the paper was not an adverse action that EPA took because Walker was not Lewis's supervisor, but only a fellow scientist who did not even work in the same program office. He found that since Lewis's supervisors were not aware that Walker had distributed Synagro's White Paper to others inside and outside EPA until Lewis reported his action to the OIG and since EPA took

    Synagro wrote another letter to EPA on February 6, 2002, that again asked about the scope of Lewis's IPA and referred to peer reviews that termed Lewis's bio-solids research "significantly flawed." CX 12. Synagro followed up with a March 27, 2002 letter requesting a meeting with EPA to discuss its concerns about Lewis. RX 154.

    EPA did not answer Synagro's July 2001 letters or the February 2002 letter, but Lewis had seen a copy of the first letter and sent a memorandum to Russo, his supervisor, responding to Synagro's allegations. RX 151. He stated that he had complied with the EPA ethics requirements and had permission from UGA to serve as an unpaid expert witness in the Marshall case. Id.

    EPA contends, it had a legitimate, non-discriminatory reason for not responding in writing to Synagro. Id. at 29-31.

    The record contains no evidence that EPA's action adversely affected Lewis's work or standing at UGA. Nor does the record support Lewis's assertion that when EPA did not respond, he lost the opportunity to become a professor at UGA. Lewis presented no evidence that UGA had offered him a position or, by the time of the hearing, that he had ever applied for employment there (or anywhere else), although several UGA officials testified that they would support him if funds could be raised. R. D. & O. at 61. Moreover, as the ALJ also pointed out, during the course of the Marshall case, Lewis testified that he "no longer planned to pursue employment" at UGA. Id. Therefore, like the ALJ, we conclude that EPA's failure to respond to Synagro's February inquiry does not constitute an adverse action.

   UGA's Inquiries

    In 2000, after Synagro subpoenaed Lewis and two UGA employees working with him to appear for depositions in the Marshall case, UGA's legal affairs director, Arthur Leed, asked Lewis to explain his role as an expert witness in the case. RX 147. Leed also asked EPA's Deputy Administrator in Washington, D.C., in letters dated October 9 and November 29, 2001, to clarify the scope of Lewis's IPA work. RX 162.

    Meanwhile, Rosemary Russo, Lewis's supervisor, had already clarified the scope of Lewis's IPA in a September 4, 2001 letter to the Director of UGA's marine sciences department. CX 9. She stated that Lewis would apply his dental pathogens research "to the Agency's mission, including pathogens in sewage sludge," thus continuing his official EPA research in this area that began in 1996. Russo added that Lewis had EPA's permission to serve as an expert witness in the Marshall case and that there were no restrictions on his testimony as long as he stated he was not speaking for EPA. Id.

    Lewis claims that EPA's response to Leed about the scope of his IPA assignment at UGA was inadequate because EPA never informed Leed that Synagro's allegations of misuse of the IPA were without merit. Complainant's Post-Hearing Brief at 162-67. According to Lewis, this inadequate response created hostility among his UGA colleagues and interfered with his prospective future employment at UGA. Id. at 158-62.

    The ALJ found that Russo's September 4, 2001 letter prompted the subsequent inquires from Leed and that EPA responded to Leed. R. D. & O. at 61. He concluded that EPA's response was not adverse because it resulted in no tangible job consequence for Lewis. Id.

the revised Lancet article that documented the risk of infection from staphylococcus aureus among residents living near sludge fertilization sites. The letter accused Lewis of attempting to "cloak his unvalidated and unpublished theories on bio-solids with the credibility of the EPA," asked EPA to clarify that the article was not authorized, and mentioned a peer review that found Lewis's research to be "significantly flawed." CX 102.

    Jewel Morris, then acting director of EPA's National Exposure Research Laboratory, responded in writing to the WEF on June 27, 2002, with a copy to Lewis. RX 111. The letter explained that employment law restrictions prevented EPA from discussing WEF's allegations of wrongdoing against Lewis, but that EPA's inability to respond "in no way should be interpreted as corroboration" of any allegations WEF was making against Lewis. Id.

    Lewis claims that Morris inadequately responded to WEF because she did not inform WEF that the peer review was improperly conducted and because she should have asked him to waive his rights under the employment privacy laws so that Morris could defend his reputation. Complainant's Post-Hearing Brief at 187-189.

enhancing communications with outside associations and the public. Lewis was not mentioned in EPA's response. CX 157.

   Earlier, on June 4, 2002, Lewis wrote to Russo, his supervisor, complaining that Synagro, other industry organizations, and EPA collaborated to stop him from researching and publicizing his views about the health risks due to pathogens emissions from sludge fertilization. RX 105. Lewis referred to his June 3, 2002 memorandum explaining the need for further research into dealing with mixtures of chemicals and microbes that terrorists might use. He requested that EPA's Ecosystems Research Division (ERD) take the lead in funding pathogens research at an annual cost of $250,000.00 for three years. CX 17. Lewis noted the implications for homeland security in this kind of research. He stated that for him to develop this area, EPA would have to modify the settlement agreement that required him to retire in May 2003. RX 105. Lewis added that he would like a response by June 14 as to whether EPA would allow him to stay on and work on this homeland security project. Id.

   Russo forwarded this letter to her supervisor, Morris, who answered her by e-mail on June 24, 2002. Morris stated that EPA would "not agree to any deviation from or modification of" the settlement agreement. RX 109. The e-mail added that once Lewis's IPA assignment with the university ended in December 2002, he would return to work at ERD until May 28, 2003, when he would resign or retire, according to the terms of the settlement agreement. Id.

   After his IPA ended in December 2002, Lewis requested an additional $150,000.00 from EPA to fund hospital research in Egypt. CX 155. Lewis stated that this first-of-its kind study of hospital-acquired infections where hepatitis C was prevalent required that another 300 patients be processed for a statistically sound conclusion. He added that he had raised $500,000.00 in private funding and contributed $80,000.00 of his own to this research. Id. While one EPA manager approved Lewis's request, Russo testified in a January 30, 2003 deposition that ERD had no further funding for the Egypt project because of budget cuts. JS 1 at 133-40; TR at 692-93, 728-29.

   Lewis claims that EPA's failure to acknowledge his work in its response in the Federal Register to the NAS study and to credit him with being the first to highlight publicly the problems with Rule 503 is adverse action because these failures negatively impacted his scientific reputation among his peers who knew about his campaign for more research on sludge fertilization. He also claims that EPA's failure to fund his research projects further harmed his reputation and future job prospects. Complainant's Post-Hearing Brief at 176-83.

   The ALJ found that, even if Lewis's work did precipitate a turn-around in EPA's thinking about Rule 503, EPA had no obligation to mention Lewis's name in the Federal Register. The ALJ therefore concluded that the omission was not adverse action. R. D. & O. at 62. He also concluded that EPA did not take adverse action when it refused to extend his retirement and fund his homeland security proposal because Lewis had agreed to retire on May 28, 2003, as part of the settlement agreement. R. D. & O. at 61-62. In

addition, the ALJ concluded that EPA did not discriminate because he found that EPA reasonably refused further funding for the Egypt research because of office budget cuts, not his protected criticisms of Rule 503. R. D. & O. at 64.

    On appeal, Lewis argues that EPA's failure to fund his research projects and to credit his work were adverse action because these failures harmed his reputation and led to his professional isolation. Complainant's Brief at 35-37. EPA responds that its failure to fund the two research projects was not retaliatory because major budget cuts had reduced the funding pool for projects. Further, EPA argues that Lewis presented no evidence showing that EPA's actions resulted in his professional isolation. Respondent's Brief at 35-38.

requirements more stringently on his articles and speeches than on other EPA scientists because of his protected activity. The ALJ, however, concluded that Lewis had not proven that the disclaimers Morris required resulted in any tangible employment consequence and, therefore, were not adverse actions. R. D. & O. at 55-56.

    EPA also requires that all papers and articles that its scientists write undergo an internal clearance process prior to publication. Scientists must coordinate with another program office when their writings might affect that office. JX 1 at 7-8, 64; TR at 994-95, 1242-43. When Morris requested that he coordinate with the Office of Water (OW) regarding his Adverse Interactions article, Lewis claims that she discriminated because that office had a conflict of interest and would not treat his article fairly. But the ALJ found that prior to Morris's request, Lewis had voluntarily forwarded the article to OW for review. Furthermore, he found that Lewis had suffered no job consequences as a result of OW's review. Therefore, the ALJ concluded that Morris's request was not an adverse action. R. D. & O. at 56-57.

    Lewis also claims that Morris, Walker, and other EPA officials worked with bio-solid proponents like Synagro to denigrate his views, hinder his efforts to prompt more investigation of the effects of fertilization on the public health, and harm his scientific reputation. The ALJ, however, found that Lewis had not produced any "reliable evidence that EPA collaborated with any person or organization" against Lewis. R. D. & O. at 64.

violation case" that involves a "continuing pattern." He stated that the release of the White Paper was "the key predicate act for a continuing violation." TR at 8, 18, 21.

    Lewis's various claims fail either because they are not actionable, or because Lewis waived argument about them, or because Lewis did not prove by a preponderance

of the evidence that they were materially adverse or that EPA took them because of his protected criticism of Rule 503. Therefore, we DISMISS the complaints.

   SO ORDERED.

         OLIVER M. TRANSUE
         Administrative Appeals Judge

         M. CYNTHIA DOUGLASS
         Chief Administrative Appeals Judge