Appearances:
For the Complainant:
    Edward A. Slavin, Jr., Esq.,
       St. Augustine, Florida

For Respondents:
    C.S. "Tyler" Przybylek, Esq.,        U.S. Department of Energy, Albuquerque, New Mexico;
    Cooper H. Wayman, Esq.,
       U.S. Department of Energy, Carlsbad, New Mexico;
    Gloria J. Barnes, Esq.,
      Westinghouse Electric Corp., Carlsbad, New Mexico

   B. Rockefeller's pursuit of redress.

   C. The four DOL complaints and the ALJs' dispositions.

   1. In Rockefeller v. Department of Energy (Rockefeller I), 98-CAA-10 and 11, Rockefeller alleged that after he raised safety concerns in his internal report and sent that report to DOE management and Westinghouse, DOE retaliated against him by giving him poor performance evaluations and then terminating him. Rockefeller asserted that his report was protected activity under the employee protection provisions of the STAA and the CAA.

   Respondents filed motions to dismiss, and on September 28, 1998, the ALJ issued a Recommended Decision and Order (Rockefeller I RD&O) recommending that those motions be granted. The ALJ ruled that Rockefeller was not a covered employee, and DOE was not a covered employer under the STAA, and that Rockefeller's CAA complaint was untimely filed because it was filed more than 30 days after Rockefeller's termination. The ALJ rejected Rockefeller's contention that the CAA's limitations period was equitably tolled because Rockefeller had filed his environmental complaint timely but in the wrong forum.

   The ALJ also issued an order finding that Rockefeller's counsel had treated the ALJ to "unwarranted, outrageous, insulting written abuse" which "constitute[d] improper professional conduct and evidence[d] a shameless refusal to adhere to reasonable standards of orderly and ethical conduct . . . ." The ALJ therefore barred Rockefeller's counsel from "appearing before the undersigned in this or any other matter . . ." pursuant to 29 C.F.R. §§18.34(g)(3) and 18.36. Order Barring Counsel from Future Appearances, Sept. 28, 1998, slip op. at 5.

   2. On October 2, 1998, Rockefeller filed a complaint in Rockefeller v. Department of Energy (Rockefeller II), 99-CAA-1. He repeated his allegations from Rockefeller I and alleged that:

• DOE and Westinghouse wrongfully induced the ALJ to recommend dismissal of Rockefeller I.

• The Recommended Decision and Order in Rockefeller I was contaminated by ex parte contacts between Respondents, OSHA, and the ALJ.

• A DOE lawyer had an improper motive and gave improper legal advice to DOE's Albuquerque Regional Office personnel about Rockefeller's FOIA request, which resulted in DOE denying Rockefeller's fee waiver request and attempting to charge him $28,000 for 1200 hours of search time under FOIA.

• DOE's $28,000 search charge was an act of discrimination to impede and delay Rockefeller's ability to obtain evidence of environmental violations.

• Respondents' actions were an obstruction of Rockefeller's whistleblower rights and a continuing violation under the STAA and CAA.

   None of these cases have merit. As we discuss below, Rockefeller has no cause of action under the STAA because the federal government and its employees are excluded from the STAA's scope. Moreover, Rockefeller's CAA claim of unlawful termination was not filed within the CAA's 30-day limitations period and is not subject to equitable tolling. And the allegations in Rockefeller II, III, and IV to the extent that they are not mere repetitions of claims made in Rockefeller I--do not state claims under the CAA and are spurious.

   A. Rockefeller I.

   1. The Surface Transportation Assistance Act claims.

   Rockefeller's claims under the STAA must be dismissed because neither Rockefeller nor DOE come within the STAA's scope. The STAA's definition of "employee" explicitly excludes "an employee of the United States Government," and the definition of "employer" explicitly excludes "the Government." 49 U.S.C. §31101(2)(B), §31101(3)(B). There is no ambiguity in these scope provisions, and therefore we can rely upon their plain meaning. Moreover, the United States is immune from suit absent an explicit statutory waiver of sovereign immunity. United States Dep't of Energy v. State of Ohio, 503 U.S. 607, 615 (1992) (any waiver of the government's sovereign immunity must be "unequivocal"). Here we have an explicit statutory invocation of such immunity. Therefore, with respect to his complaint against DOE, neither Rockefeller nor DOE is covered by the statute.

   Because of the explicit exclusion of employees of the United States Government from the STAA's protections, Rockefeller's claim against Westinghouse does not fare any better.

   2. The Clean Air Act claims.

   Rockefeller received a notice of removal from the federal service from Rush O. Inlow, Deputy Manager, Albuquerque Operations Office, Department of Energy, on December 9, 1997. Rockefeller did not file his discrimination complaint with the Department of Labor until May 9, 1998, well beyond the 30-day time limit for filing a complaint under the employee protection provision of the Clean Air Act. 42 U.S.C. §7622(b)(1).

   Rockefeller argues that the limitations period should be tolled because he filed his CAA claim within the limitations period but in the "wrong forum." He claims he made a complaint of retaliation on January 5, 1998, "to the EPA WIPP group in Washington, D.C." May 9, 1998 complaint, ¶ 12. In addition, he asserts that his complaint to the MSPB tolled the CAA limitations period.

   Although he does not cite or discuss it in his briefs before us, Rockefeller apparently is referring to the discussion of equitable tolling of statutory time limits in School Dist. of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981). In that case arising under the Toxic Substances Control Act, 15 U.S.C. § 2622 (TSCA), the court found that the TSCA whistleblower protection provision's 30-day limitations period is more like a statute of limitations than a jurisdictional bar, and therefore is subject to equitable tolling. Allentown, 657 F.2d at 19. The court articulated three principal situations in which equitable tolling may apply: when the defendant has actively misled the plaintiff regarding the cause of action; when the plaintiff has in some extraordinary way been prevented from filing his action; and when "the plaintiff has raised the precise statutory claim in issue but has done so in the wrong forum." Id. at 20 (internal quotations omitted). Neither the first nor the second principle of equitable tolling applies to this case. As we discuss below, there are no material facts in dispute relating to the question whether Rockefeller raised the precise statutory claim in the "wrong forum," and Respondents are entitled to summary decision as a matter of law.

   Rockefeller asserts that he made an allegation to the EPA on January 5, 1998, which constituted a CAA whistleblower complaint. He maintains that the January 5 submission was in writing and "was part of the public record of comments made to EPA concerning the DOE Waste Isolation Plant Project . . . ." Complainant's Rebuttal Brief at 2. Although Rockefeller submitted numerous exhibits to the ALJ and the ARB, he did not provide a copy of his January 5 EPA document. Neither did he submit an affidavit attesting to the exact nature of the claim he made to the EPA on January 5. When a complainant invokes equitable tolling of a statute of limitations, it is the complainant's burden to demonstrate existence of circumstances that would support tolling. Cf. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir. 1993) (plaintiff in Title VII action has burden of proving equitable reasons for failure to comply with limitations period). There is nothing in Rockefeller's pleadings or materials filed with the ALJ or the ARB to demonstrate that the document he assertedly provided to the EPA "raised the precise statutory claim in issue," as required under Allentown. In the absence of any factual support for the notion that Rockefeller filed a CAA environmental whistleblower complaint with the EPA we conclude that equitable tolling on the basis of that incident is not justified.

   Rockefeller also argues that his MSPB challenge to DOE's decision to discharge him tolled the CAA's statute of limitations. But the record clearly shows that Rockefeller was raising an entirely independent claim under the Federal Whistleblower Protection Act, 5 U.S.C. §2302(b)(8), not the CAA. The Whistleblower Protection Act prohibits the taking of a personnel action because of "any disclosure of information by an employee . . . which the employee . . . reasonably believes evidences--(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . . . ." 5 U.S.C. §2302(b)(8). Thus, Rockefeller's argument is that he made a complaint to the MSPB that he was being removed from his position in retaliation for engaging in activity protected by the CAA whistleblower provision.

   Because we consider matters outside the pleadings, such as the MSPB decisions, we treat the Respondents' motions to dismiss for failure to state a claim as motions for summary decision pursuant to 29 C.F.R. §§18.40-18.41. See 29 C.F.R. §18.1, Rule 12(b)(6), Federal Rules of Civil Procedure. We must grant summary decision where there are no material facts in dispute and the moving party is entitled to a decision as a matter of law. The jurisdictional facts are not in dispute here, and those facts do not support Rockefeller's claim that his MSPB complaint constituted a CAA whistleblower complaint.

   In his December 20, 1997 appeal of his discharge to the MSPB, Rockefeller stated that the laws he believed were violated were "DOE-AL's [Albuquerque Operations Office] OPM approved Personnel Mgm't System, Americans with Disabilities Act, Perjury, Forgery." DOE Exhibit to Motion to Dismiss (DOEX) M, p. 3. Rockefeller asserted that those laws had been violated because "[n]o required Mid-Year Progress Review performed. Perjury and forgery comitted [sic] within sworn affidavits of my supervisors and the CAO manager. Request of medical documentation violating the ADA." Id. In a memorandum to the MSPB Examiner dated December 24, 1997, Rockefeller further described his claims: "What I have done with this appeal is to address and outline the unjustified nature of my removal along with violations of essentially Office of Personnel Management (OPM) law, the Americans with Disabilities Act, EEO law, perjury, and forgery." Id., p. 5.

   The MSPB decisions also shed light on the substance of Rockefeller's MSPB complaints. Thus, in the November 8, 1997 Initial Decision dismissing Rockefeller's appeal, the Administrative Judge characterized Rockefeller's whistleblower claim as follows:

[Rockefeller] stated that he issued an April 18, 1996 report in which he found Westinghouse's draft comment resolutions to a "safety analysis report for packing" (SARP) for a remote handled shipping cask to be unacceptable. Specifically, he reported that Westinghouse's draft resolutions failed to resolve certain concerns with the SARP. He submitted the report to his team leader in the Department of Energy's (DOE's) Carlsbad Area Office (CAO), Don Watkins. But perceiving that Watkins would not issue the report, he independently submitted it to CAO management and to Westinghouse. The appellant claims that by his independent release of the report, he blew the whistle on CAO management's failure to follow DOE Order Number 5480.3, paragraph 6.c(2), which states that "heads of Field Organizations . . . perform an independent and objective review and evaluation of contractors' safety analysis reports for packaging designs."

Rockefeller v. Department of Energy, MSPB Docket Number DE-1221-98-0003-W-1, Initial Decision, Nov. 3, 1997, slip op. at 3.

discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee" has engaged in activity protected under the CAA. 42 U.S.C. §7622(a). Because refusal to waive a FOIA search fee is not discrimination with respect to "compensation, terms, conditions, or privileges of employment," Rockefeller has failed to state a claim upon which relief can be granted under the CAA. See 29 C.F.R. §18.1(a); Rule 12(b)(6), Federal Rules of Civil Procedure.

   Rockefeller raises a procedural issue on appeal. He argues that in Rockefeller II the ALJ violated the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (OALJ Rules) by granting Respondents' Motions to Dismiss before the time allowed for Rockefeller's response to the motions had elapsed. In the circumstances of this case we conclude that the ALJ did not commit reversible error. A brief review of the chronology of events will clarify our conclusion.

   Rockefeller filed his complaint with OSHA on October 2, 1998. OSHA denied the complaint on October 7, and Rockefeller requested a hearing on October 14. The matter was then forwarded to the Office of Administrative Law Judges. On November 6, 1998, the ALJ who had been assigned the case issued an Order to Show Cause why the matter should not be dismissed and granted Rockefeller until November 20 to respond. The ALJ also granted both Rockefeller and the Respondents until November 27 to file briefs in support of their positions. Rockefeller II RD&O, slip op at 3. Rockefeller responded to the Order to Show Cause on November 19, 1998. DOE and Westinghouse both filed motions to dismiss with supporting memoranda in response to the ALJ's order allowing them to file briefs. The ALJ issued his recommended decision and order of dismissal on December 4, 1998, prior to his receipt of a response by Rockefeller to the motions to dismiss. Although the ALJ discussed the propriety of dismissal with reference to his show cause order, in his recommended order he stated that "[a]ll claims of complainant are dismissed, with prejudice. The Motions of Dismissal of respondents, are granted." Id., slip op. at 4. Rockefeller argues that because the ALJ dismissed his complaint prior to receipt of Rockefeller's response to the motions to dismiss he violated the OALJ Rules.

   OALJ Rule 18.6(b) provides:

Within ten (10) days after a motion is served, or within such other period as the administrative law judge may fix, any party to the proceeding may file an answer in support or in opposition to the motion, accompanied by such affidavits or other evidence as he or she desires to rely upon.

29 C.F.R. §18.6(b). Rule 18.4(c)(3) requires that five days be added to the response period when a pleading is served by mail. 29 C.F.R. §18.4(c)(3). The ALJ did not wait the requisite fifteen days prior to issuing his recommended order. However, the ALJ had before him-- and considered--Rockefeller's response to the Order to Show Cause, which addressed precisely the same issues raised in the motions to dismiss. Rockefeller II at 3. In Rockefeller III, the ALJ explained his order in Rockefeller II: "Although I granted Respondents' Motions to Dismiss in the decision, my decision was based solely upon the failure of Complainant to meet the requirements of the Order to Show Cause." Rockefeller III RD&O at 3.

   Although the RD&O was inartfully drafted, we do not find that the ALJ committed reversible error. Rockefeller II therefore must be DISMISSED.

   C. Rockefeller III.

    Rockefeller III also relates to the FOIA search fee. Rockefeller appealed the denial of Rockefeller's request for a fee waiver to the DOE Office of Hearings and Appeals (OHA). Although OHA denied Rockefeller's appeal, the decision noted in a footnote that OHA disagreed with the Albuquerque Operations Office's

conclusion that Rockefeller's counsel should be designated a commercial requester because his client did not prevail in previous whistleblower actions. We have no evidence that Rockefeller's current action is "personal in nature" as AL contends, or that Rockefeller is not pursuing a new action seeking compensation or retribution for wrongs he allegedly suffered.

Decision and Order of the DOE OHA (OHA D&O), Case Number VFA-0447, Oct. 28, 1998, slip op. at 4 n.*. Rockefeller then filed his third complaint with the Department of Labor, alleging that the OHA D&O proved that DOE had engaged in invidious discrimination and that a DOE attorney had a conflict of interest in providing "undisclosed, self-interested legal advice" to the Albuquerque Operations Office on the response to the FOIA fee waiver request.

Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981). However, in the circumstance of these cases, where the jurisdictional facts are not in dispute, discovery was not warranted.

   We reject Rockefeller's claims that he was entitled to discovery and a trial-type evidentiary hearing.

   2. Request for recusal of Cynthia L. Attwood.

   In a July 5, 1999 cover letter to his Rebuttal Brief in Rockefeller II, III, and IV, Rockefeller's counsel "object[ed] to Ms. Cynthia Attwood deciding this case by reason of her involvement in OSHA Compliance Director Richard D. Fairfax's enclosed defamatory memorandum . . . ." The referenced Memorandum is from Richard Fairfax, the Occupational Safety and Health Administration's Director of the Directorate of Compliance Programs, to John B. Miles, Jr., Regional Director, OSHA, dated February 19, 1999. Fairfax's Memorandum apparently was written in response to correspondence from Complainant's counsel raising concerns about whistleblower investigations being performed by the OSHA Region VI office. Fairfax, in his Memorandum, stated that Complainant's counsel previously had corresponded with the Secretary about these concerns, and that Complainant's counsel had raised similar complaints about investigative work in other OSHA regional offices. Fairfax also stated in his Memorandum that Complainant's counsel "has also asked for the recusal of all Administrative Law Judges who have presided over hearings for his clients, and made charges against Chief Administrative Law Judge John Vittone and Administrative Review Board Member Cynthia Atwood [sic]." Attached to the Rebuttal Brief is a July 4, 1999 letter from Rockefeller's counsel to Tom Buckley, Director, OSHA Office of Investigative Assistance entitled "Rockefeller V Complaint and Request for Recusals." Among many other things, the letter states "any involvement by ARB Member Ms. Cynthia Attwood in this case at any stage of the proceedings would be an appearance of impropriety." There is no further explanation in the Rebuttal Brief or any of the attachments of the basis for the charge that ARB Member Attwood was "involved" in the Fairfax memorandum.

   The Board, of course, must consider carefully the allegation that a Board Member's participation in a case would raise an appearance of impropriety. However, we strongly disagree with Rockefeller's assertion that Fairfax's Memorandum raises a "clear" question as to the existence of any ex parte communication, whether direct or indirect, between Board Member Attwood and Fairfax. Member Attwood does not know Richard D. Fairfax, and to her knowledge has never had any direct or indirect communication with him. No Board Member has communicated with Fairfax, and we are not aware that any member of the Administrative Review Board's staff has communicated with Fairfax. We therefore conclude that Member Attwood's consideration of these cases would not create an appearance of impropriety because Rockefeller's allegation that Member Attwood possibly engaged in ex parte communication with Richard Fairfax is baseless. We DENY the request for recusal as wholly without foundation.

   3. Request for oral argument.