Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy, 1999-CAA-21, 22 (ALJ Jan. 13, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

DATE: JANUARY 13, 2000
CASE NOS. 1999-CAA-0021
    1999-CAA-0022

In the Matter of

TOD N. ROCKEFELLER,
    Complainant,

    v.

CARLSBAD AREA OFFICE (CAO)
U.S. DEPARTMENT OF ENERGY;
WESTINGHOUSE ELECTRIC CO. (WID)
    Respondent.

This is the fifth filing of the same cause of action by Complainant Tod Rockefeller. The first filing, 98 CAA 10 and 11, resulted in a Recommended Decision and Order by Judge Henry Lasky, under date of September 28, 1998. Complainant had alleged he was removed from his employment because of protected activity as defined by section 322(a) of the Clean Air Act and section 31105 of the Surface Transportation Assistance Act. Judge Lasky's Recommended Decision and Order recommended dismissal of complainant's actions.

The second, third and fourth filings, 99 CAA 0001, 99 CAA 0004, and 99 CAA 0006 all resulted in decisions by the undersigned, recommending their dismissal. Each case repeated the allegations of protected activity as alleged in 98 CAA 10 and 11. Each filing, however, in an attempt to circumvent collateral estoppel, alleged additional wrongdoings misconduct by Judge Lasky, a violation of the Freedom of Information Act, and misconduct of counsel. All were found to be without merit. Those four cases are now on appeal to the Administrative Appeal Board.

The instant case again alleges the same violations of protected activity. This time, to circumvent

the effect of collateral estoppel, a further violation of the Freedom of Information Act is alleged. The specific violation alleged is the destruction of documents which are subject to the Freedom of Information Act. Certain documents were redacted and then released pursuant to complainant's FOIA request. A document obtained by complainant states that an employee of DOE "arranged the destruction of the unredacted versions which were released to the appellant in redacted form, as well as destruction of the Notice of Proposal to Remove."

By Motion received December 7, 1999, DOE filed its Motion to Dismiss. The Motion was supported by the affidavit of the attorney for DOE, which established that the original of the documents in question were never destroyed, but remain in her possession. If any documents were destroyed, they were only copies.

Complainant was given the opportunity to show cause why this matter should not be dismissed. Complainant's response was received January 3, 2000. No evidence was offered to overcome the fact that the originals were never destroyed. Complainant's response thus failed to meet the requirements of the Order to Show Cause.

There is no new cause of action. Collateral estoppel here applies as it did in the second, third and fourth cases filed.

Any complaint complainant might have concerning denial or redacting of FOIA requests must be addressed in U.S. District Court. 5 USC 552(a) et seq.

It is recommended that this matter be dismissed, with prejudice.

      EDWARD C. BURCH
      Administrative Law Judge

Dated: Jan. 13, 2000
San Francisco, California

ECB:mw