DATE ISSUED: May 6, 1985
CASE NO.: 85-CAA-1

In the matter of

DONALD J. WILLY,
    Complainant

v.

THE COASTAL CORPORATION AND COASTAL STATES MANAGEMENT, INC.
    Respondents

    Respondents, on February 18, 1985, moved to dismiss the the complaint urging (1) that Complainant, as a former attorney for Respondents, lacks standing to bring the proceeding, and (2) that the activity for which Complainant was allegedly discharged is not protected activity under the applicable statutes.

    The argument that Complainant lacks standing to sue rests essentially on the contention that permitting suits of this nature, under the Environmental Acts in question, would deprive Respondents of their right to representation by counsel which violates the Sixth Amendment.

    Complainant, although an attorney, is an employee of Respondents within the meaning of the relevant statutes. Congress, in enacting these laws, did not distinguish between employees based on their status and has provided no exemption for lawyers on corporate staffs. Whatever the validity of Respondent's policy arguments, an administrative agency may not supply an exception to a law which the legislature has omitted.

    Absent such an exemption, Respondents assert that the laws under consideration here must give way to the Sixth Amendment's provision for the right to representation by counsel.¹ Administrative law judges, however, do not have the jurisdiction to rule on the constitutionality of statutes and that argument will not be addressed here.

    Essentially Complainant alleges that he was terminated for his insistence on environmental compliance measures contrary to the desires of his employer and for the failure to delete mention of possible violations of environmental statutes from a memorandum he had prepared. There is no indication in the pleadings that Complainant brought these concerns to the attention of any agency responsible for enforcing the laws in question.²

    Employer, relying on the Fifth Circuit's construction of the Energy Reorganization Act (ERA) in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), urges that internal complaints to employers such as those under consideration here are not protected activity within the meaning of the Statutes relevant to this proceeding. The language of the ERA is almost identical to the statutory provisions involved herein.

    The foregoing provision tracks essentially the analogous Provision of the Energy Reorganization Act 47 U.S.C. § 5851.³ The relevant texts of the Safe Drinking Water Act and the Toxic Substances Control Act are substantially identical. The Comprehensive Environmental Response, Compensation and Liability Act, the Water Pollution Control Act, and the Solid Waste Disposal Act, which omit reference to "any other action", describe protected activity somewhat more narrowly.

    Brown & Root held that an internal report is not a proceeding under the Act nor a proceeding for the administration or enforcement of the Act. According to the Fifth Circuit, a proceeding under Section 5851 is confined to formal legal or administrative proceedings. The Court further held in reliance upon the wording of the statute, that internal reports were not "any other action" stating:

Because the general term "in any other action" follows a reference to specific types of proceedings, it is most reasonable to presume that the term "actions" refers to something similar to the specific proceedings mentioned earlier in the sentence.

No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.⁴

    The Secretary of Labor, in Mackowiak v. University Nuclear Systems, Inc., 82-ERA-8 (Slip op. April 29, 1983 at pp. 8-9), expressly adopted the rationale of Phillips. He restated the position that internal complaints are protected under the ERA in Wells v. Kansas Gas and Electric Company, et al., 83-ERA-12 (Secretary's decision June 14, 1984 slip op. p. 6).⁵ Finally, the Secretary's brief in Wells filed in the Tenth Circuit on March 13, 1985, expressly asserts that Brown & Root, was wrongly decided.

    As a general rule, administrative law judges are constrained to follow agency precedent where the agency has clearly stated its position. Contrary to Respondents' suggestion, this does not compromise the independence of administrative law judges. In these cases, administrative law judges have the same relationship to the Secretary as any trial court to the appellate court with jurisdiction over the proceeding. The position that internal complaints are essential preliminary steps to "proceedings" within the scope of the whistleblower statutes and thus constitute protected activity is, moreover, on its face persuasive.

    However, in this case the Fifth Circuit's Brown and Root decision controls. On appeal, that Circuit would have jurisdiction of this proceeding. Absent a reversal of Brown & Root, the Secretary and the parties are bound by that precedent in the Fifth Circuit, which, as a practical matter, precludes a decision on the merits of this case. Accordingly, it is recommended that the

¹See Respondents' Reply Brief and Comments on Tenth Circuit Briefs in Support of Motion to Dismiss dated April 19, 1985, p. 12.

²Complainant suggests that his termination was not exclusively for internal activities but also because of contact with the Texas Department of Water Resources concerning environmental matters with respect to the Corpus Christi facility. (See Letter of Termination, dated October 1, 1984, attached to Complainant's Response and Brief in Opposition to Respondent's motion to Dismiss). The termination letter alleges Complainant was dismissed for concealing such contact.

    The pretrial record available to the undersigned does not disclose with any particularity the substance of such contact with the State agency. Accordingly, no determination can be made whether such contact constituted protected activity. This is a matter primarily within the knowledge of Complainant. Under the circumstances, the motion to dismiss should be determined on the basis of the allegations in the complaint, and the Administrator's decision of November 26, 1984, referring to internal complaints by Mr. Willy.

³The analogous provisions in ERA read as follows:

§ 5851. Employee protection

    (a) Discrimination against employee

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)--

    (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.], or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

    (2) testified or is about to testify in any such proceeding or;

    (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry cut the purposes of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.]

⁴ This provision was amended later to expressly cover internal complaints. The Phillips decision, however, is concerned with the pre-amendment version of the Mine Safety Act's whistleblower provision.

⁵ "The administrative law judge concluded that complainant's reporting of quality discrepancies and safety problems constituted protected activity under Section 5851 albeit such reporting was within the scope of complainant's official duties as a quality assurance inspector and was communicated only internally and not to NRC. I accept this finding. It is in complete accord with my holding on the same issue in Mackowiak v. University Nuclear Systems, 82-ERA-8, slip op. pp. 8-11." (Ibid.).