ARB CASE NO. 02-041
ALJ CASE NO. 2001-ERA-41
DATE: September 29, 2003
In the Matter of:
RONNEY L. BATH,
COMPLAINANT,
v.
U.S. NUCLEAR REGULATORY COMMISSION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Billie Pirner Garde, Esq., Clifford, Lyons & Garde, Washington, D.C.
For the Respondent:
Donald F. Hassell, Esq., U.S. Nuclear Regulatory Commission, Washington, D.C.
FINAL DECISION AND ORDER
This case concerns Ronney L. Bath's complaint against the Nuclear Regulatory Commission (NRC) and five NRC employees alleging violations of the whistleblower protection provision of the Energy Reorganization Act (ERA), 42 U.S.C.A. § 5851 (West 1995). Section 5851 prohibits employers from retaliating against employees who make safety complaints. The Administrative Law Judge (ALJ) granted the NRC's motion to dismiss the complaint for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Bath v. NRC, ALJ No. 2001-ERA-41 (Jan. 18, 2002). Bath seeks review of that ruling. For the reasons that follow, we agree that the complaint must be dismissed.
We have jurisdiction to decide this matter pursuant to 29 C.F.R. § 24.8 (2002) and Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). We review an order to dismiss for lack of jurisdiction de novo. Williams v. Lockheed Martin Energy Sys., Inc., ARB No. 98-059, ALJ No. 95-CAA-10 (ARB Jan. 31, 2001). In passing on a motion to dismiss, whether on grounds of lack of subject matter jurisdiction or failure to state a cause of action, we take the facts asserted in the complaint as true. Cf.Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Varnadore v. Oak Ridge Nat'l Lab., Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1, 94-CAA-2, 94-CAA-3, 95-ERA-1, slip op. at 58 (ARB June 14, 1996).
Bath alleges that U.S. Robotech, Inc. employed him from 1997 until his termination on December 22, 2000, that prior to his termination Robotech had assigned him to provide computer technology assistance to the NRC, and that while Bath worked at the NRC he discovered and reported what he believed to be safety lapses. Bath further asserts that five NRC employees pressured Robotech into firing him because of his reporting activity. This conduct, Bath asserts, violated § 5851 of the ERA. Bath seeks all available remedies, including money damages, against the NRC and its five employees. Amended Complaint of Retaliation, filed Oct. 10, 2001.1
1 Bath's Complaint also named Robotech and its President as Respondents. Bath settled with Robotech and its President. Recommended Decision and Order Approving Settlement Agreement and Dismissing Complaint with Prejudice, ALJ No. 2001-ERA-40 (ALJ Jan. 24, 2002).
2 For purposes of § 5851(a)(1) – "No employer may discharge . . . or otherwise discriminate against any employee. . . ." – the term employer includes licensees of the Nuclear Regulatory Commission, the licensees' contractors, applicants for such licenses, and contractors of the Department of Energy. 42 U.S.C.A. § 5851(a)(2).
3 The agency in Pastor was a Veterans Administration hospital which conceded that it was a covered employer because it was a licensee of the Nuclear Regulatory Commission within the meaning of § 5851(a)(2)(A).