DATE: DECEMBER 4, 1998
CASE NO: 1999-CAA-0001

In the Matter of

TOD N. ROCKEFELLER,
    Complainant,

    v.

CARLSBAD AREA OFFICE (CAO), DEPARTMENT OF
ENERGY; WESTINGHOUSE ELECTRIC COMPANY, a
Division of CBS, Inc., and WESTINGHOUSE
ISOLATION DIVISION (WID),
    Respondents.

Edward Slavin, Jr., Esq.
Attorney at Law
35 SE 8th Terrace
Deerfield Beach FL 33441
    For the Complainant

Cooper H. Wayman, Esq.
Elizabeth Rose, Esq.
U.S. Department of Energy
Carlsbad Area Office
P.O. Box 3090
Carlsbad, NM 88221
    For the Respondent
    U.S. Department of Energy

Gloria J. Barnes, Esq.
Westinghouse Electric Corporation et al.
P.O. Box 2078
Carlsbad, NM 88221
    For the Respondent
    Westinghouse Electric Corporation

Before: EDWARD C. BURCH
    Administrative Law Judge

By Order dated September 28, 1998 in 98-CAA-10 and 98-CAA-11, Tod Rockefeller v. U.S. Department of Energy and Westinghouse Electric Co., Judge Henry Lasky issued a Recommended Decision and Order dismissing all claims against respondents. That Recommended Decision and Order is on appeal to the Administrative Appeal Board.

October 2, 1998, a second complaint was filed with the Occupational Safety and Health Administration (OSHA), by complainant, and through counsel. This complaint was subtitled Rockefeller II by complainant's counsel, and has been given the number 99-CAA-1.

By letter dated October 7, 1998 OSHA concluded no further action was warranted in "Rockefeller II".

Following the OSHA determination of October 7, 1998 complainant's counsel, on October 14, 1998 requested a hearing on complainant's "second whistleblower complaint."

Complainant's counsel, in his second complaint, stated that the "facts in Mr. Rockefeller's first complaint, dated May 9, 1998, are incorporated by reference." The second complaint also alleged DOE and Westinghouse wrongfully induced Judge Lasky to recommend dismissal of the first complaint. The second complaint further stated complainant believes ex parte contacts were made with Judge Lasky by respondents. There is also a contention that a copying expense of DOE is a whistleblower violation.

Because the second filing appeared to be an attempt to obtain a trial on a matter that was on appeal to the Administrative Appeals Board, complainant was given the opportunity to provide evidence that would substantiate the allegations of improper ex parte contacts and wrongfully inducing a recommended dismissal of the first complaint.

November 6, 1998 an Order to Show Cause issued, ordering complainant to show cause, by November 20, 1998, why this matter should not be dismissed. No interrogatories, requests for admissions, or depositions were permitted. Complainant was required to present, not supposition, but rather, existing evidence that would support the allegations that were in addition to the allegations of the first complaint.

Both Complainant and Respondents were also provided the opportunity to provide briefs in support of their positions, to be received by November 27, 1998.

Both respondents Moved to Dismiss, citing cases.

Complainant's response to the Order to Show Cause contained many allegations and citations. It contained no facts that would support the allegations of improper ex parte contacts and undue

influence. The Declaration of complainant's counsel details his experience and expresses his opinions only.

The allegations of Mr. Rockefeller's first complaint, incorporated into this matter, are subject to collateral estoppel. As was stated in Montana v. United States, 99 S. CT 970, 973; 440 U.S. 147:

"Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits ..."

The Court went on to state that the application of this doctrine "is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions."

Thus, with respect to the allegations of the first complaint, complainant's remedy is that of appeal.

The allegations of the second complaint, not alleged in the first complaints, have been supported by no evidence. Those allegations are dismissed under both the doctrine of collateral estoppel and for the reason they are unfounded attempts, completely lacking in evidence, to impugn the integrity of the trial judge in the earlier case, solely for the reason the Judge's rulings were adverse to complainant.

That one of the respondents wished to charge a copying fee in the first action fails to state a cause of action under the Clean Air Act. Collateral estoppel also applies. Again, complainant's remedy, if any, is appeal.

Since it is recommended that this matter be dismissed, with prejudice, it is unnecessary to address other letters, motions or objections raised by Complainant's counsel, and they are dismissed.

All claims of complainant are dismissed, with prejudice. The Motions of Dismissal of respondents, are granted.

       EDWARD C. BURCH
       Administrative Law Judge

Dated: December 4, 1998
San Francisco, California

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