Date: June 16, 1997
Case No. 97-CAA-3

In the Matter of

DAVID MARSHALL HIGH
   Complainant

    v.

LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
LOCKHEED MARTIN CORPORATION,
OAK RIDGE OPERATIONS OFFICE (ORO, AND
U.S. DEPARTMENT OF ENERGY, (DOE)
   Respondents

   A Recommended Order of Dismissal was issued in the above-named case on May 29, 1997; however, the order was inadvertently dated May 29, 1996. The issue date on the Recommended Order of Dismissal should be corrected to May 29, 1997.

      ROBERT L. HILLYARD
      Administrative Law Judge

Date: May 29, 1996
Case No. 97-CAA-3

In the Matter of

DAVID MARSHALL HIGH
   Complainant

   v

LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
LOCKHEED MARTIN CORPORATION,
OAK RIDGE OPERATIONS OFFICE (ORO, AND
U.S. DEPARTMENT OF ENERGY, (DOE)
   Respondents

The Complainant, David Marshall High, through his attorney, Edward A. Slavin, Jr., by letter dated September 26, 1996, complains that "DOE lawyers have given permission and encouragement to IMES to offer unethical fees-only settlements to Oak Ridge whistleblowers, which 'settlements' unlawfully seek to bribe plaintiff lawyers, undermine client confidence, and elicit whistleblowers to give up their rights to compensatory damages under whistleblower statutes, in violation of the ERA and the environmental whistleblower laws." Complainant appeals from the unfavorable final determination of the Wage-Hour Division and requests:

1) A de novo hearing;

2) Certification of class action;

3) Remand to the Wage-Hour Division for investigation of his complaint.

   Lockheed Martin Energy Systems, Inc. and Lockheed Martin Corporation

move to have the complaint against them dismissed for failure to state a claim because the amount of a settlement offer is not a proper basis for a complaint under the ERA or any of the environmental statutes upon which that complaint is based.

   In the alternative, Lockheed Martin Energy Systems, Inc. and Lockheed Martin Corporation move to deny class action certification because a certifiable class with predominating issues of law or fact does not exist.

   Respondent, Department of Energy, has filed a Motion to Dismiss the complaint against DOE because DOE is not Complainant's employer and the amount of a settlement offer is not a proper basis for filing a whistleblower complaint under the Energy Reorganization Act (ERA) and the environmental statutes.

   On March 11, 1997, an Order was issued directing the Complainant to show cause why his complaint should not be dismissed for the reasons given by the parties in their Motions to Dismiss and for his failure to comply with 29 C.F.R. Part 24.

   On April 10, 1997, the Complainant filed a response in which he argues that (1) DOE is a proper respondent and Mr. High is entitled to discovery before DOE's motion may be considered. (2) The Complainant has not received proper responses to discovery and FOIA requests propounded to DOE on September 4, 1996 and on November 5, 1996. (3) LMES' and DOE's motions to dismiss the class action must also be denied because there has not yet been sufficient discovery.

   On April 16, 1997, DOE filed a reply to Complainant's Response to the Show Cause Order in which it argues that the Complainant has failed to establish a prima facie case. Complainant objects and moves to strike DOE's response arguing that permission for filing a response was not requested. On April 22, 1997, IMES filed a Motion for Leave to File Reply and Memorandum in Reply to Complainant's Response in which it argues that the complaint fails to state a cause of action.

   LMES' Motion for Leave to File Reply and Memorandum in Reply to Complainant's Response is hereby granted and the Complainant's objections to DOE's Response to Complainant's Response to the Show Cause Order are overruled and the responses are hereby accepted.

   The complaint does not allege that Mr. High was a employee of any of the respondent companies. The complaint does not give a time when the alleged improper activity occurred so that a determination cannot be made whether it is time barred from prosecution. The complaint in no way complies with the basic pleading requirements of 29 C.F.R. § 24.3. For this reason alone, the complaint must fail.

   The determinative issue in ruling on the pending motions to dismiss is whether an offer by a respondent company to settle a whistleblower case on a fees-only basis will support

a cause of action under the pertinent statutes. The monetary amount of a settlement offer is not a proper basis for the filing of a complaint under any of the listed whistleblower statutes. The complaint must also be dismissed for this reason.

   The Complainant cites Stephenson v. NASA 93-TSC-5 (ARB February 13, 1997) and Connecticut Light & Power Co. v. Secretary of Labor, No. 95-4094 (2nd Cir. 1996), 1996 U.S. App. LEXIS 12583, in support of its argument. However, I find Complainant's reliance on these two cases misplaced and the cases not on point with the facts in this case.

   Upon consideration of the record and the arguments of the parties, it is, therefore,

   ORDERED that the complaint of David M. High is hereby DISMISSED.

      Robert L. Hillyard
      Administrative Law Judge

NOTICE: This Recommended Decision and order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).