and the Atomic Energy Act and their
implementing regulations, however, nothing in the CAA, SDWA, SWDA, or CERCLA relates to security
clearance operations at places of employment. Since Complainants' security concerns are unrelated to
potential violations of the CAA, SDWA, SWDA, or CERCLA, their expressed concerns cannot be
grounded in reasonably perceived violations of those statutes.
In an effort to avoid this fatal weakness in their argument, Complainants theorize that
people who have something questionable in their personal background are, for that reason, likely
to engage in behavior at work which will endanger the environment. Therefore, Complainants posit, their
expressed concern that ORO's security clearance operations allowed such people to work at ORO was
protected activity under the CAA, SDWA, SWDA and CERCLA. This is rank speculation of the sort that
cannot support a claim of protected activity. As the ALJ noted, Complainants have not asserted that any
of the persons allegedly improperly granted security clearances had ever harmed or threatened to harm the
environment. See R. D. and O. at 14. A claim of retaliation under the environmental
whistleblower provisions must rest upon a firmer foundation than was presented here. See Crosby,
Minard, supra.
For these reasons we conclude that Complainants' expressed concerns about
security clearance operations did not constitute activity protected by the CAA, SDWA, SWDA, or
CERCLA. Kesterson v. Y-12 Nuclear Weapons Plant, ARB Case No. 96-173, ALJ Case No.
95-CAA-0012, Fin. Dec. and Ord., Apr. 8, 1997, slip op. at 4-5, appeal dismissed sub nom.
Kesterson v. Secretary of Labor, No. 97-3579 (6th Cir. May 6, 1998); Tucker v. Morrison
& Knudson, ARB Case No. 96-043, ALJ Case No. 94-CER-1, Fin. Dec. and Ord., Feb. 28, 1997,
slip op. at 4-6. Cf. Frederick v. Department of Justice, 73 F.3d 349, 352-53 (Fed. Cir. 1996)
(Whistleblower Protection Act, 5 U.S.C. §2302(b), specifically requires that federal employee have
[Page 10]
a reasonable belief that he is disclosing a violation of law, rule or regulation; statute enacted to protect
employees who report genuine infractions of law, not to encourage employees to report arguably minor and
inadvertent miscues occurring in the conscientious carrying out of assigned duties).
III. Additional Issues on Appeal
A. Discovery
In ruling that Complainants' security concerns were not protected activities under
the CAA, SDWA, SWDA or CERCLA, we have considered their argument that the ALJ should not have
limited discovery to the timeliness issue (see R. D. and O. at 3-4, 8, 10) but should have allowed
discovery of protected activities through disclosure of the Case Review and Analysis Sheets which
Complainants had previously prepared (in the course of their work), and which were in the possession of
DOE. Complainants' Rebuttal Brief at 12-13; Complainants' Motion for Summary Reversal and Opening
Brief at 2, 9, 13-15.
We agree with the ALJ that "[d]iscovery is unnecessary for complainants to
counter the respondents' assertion that they have failed to state a claim with respect to protected activity
because necessary facts to do so are within the complainants' own personal knowledge." R. D. and
O. at 14. See also R. D. and O. at 3-4, 8, 10. Complainants' alleged protected activities
involved their criticisms of Oak Ridge's implementation and enforcement of federal personnel security
clearance requirements and procedures. As Complainants' First Environmental Protected Activity
Summary -- submitted to the ALJ in response to DOE's motion for summary judgment -- makes clear,
discovery of the Case Review and Analysis Sheets which Complainants themselves had previously
prepared would not have changed the nature of their protected activities claim. Complainants asserted that:
-
Environmental releases of enormous consequences could result
from putting such criminal and questionable employees as those more than
40 persons recounted above to work in nuclear weapons plant positions
where they have access to and hegemony over radioactive and toxic
materials. This brings this case within the ambit of each of the
environmental whistleblower laws.
-
* * * *
- If the Court needs further facts, Complainants require
access to their signed case analysis and review sheets . . . to give the Court further details
on these and other cases. In one year, Ms. Johnson was involved in 700 cases. It is astounding
for DOE to expect Complainants to recall all such details without access to their notes in the DOE
files.
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Complainants' First Environmental Protected Activity Summary at 13, 15 (emphasis added).
Discovery of the Case Review and Analysis Sheets would merely have provided
"further details" regarding the employees described in the Summary as well as additional
examples of such employees. Discovery would not have changed the speculative basis of Complainants'
assertion that they engaged in activity protected by the CAA, SWDA, SDWA, or CERCLA. Accordingly,
Complainants were not prejudiced in the presentation of their argument regarding the scope of those
environmental statutes. See Reid v. Secretary of Labor, 1996 WL 742221, at *2 (6th Cir. 1996)
(allegations that Secretary and ALJ committed reversible error in ALJ's refusal to order discovery prior
to ruling on jurisdictional underpinnings of case is meritless; facts necessary to determine whether
complainant was an employee under whistleblower statutes were in his control at all times); Freel v.
Lockheed Martin Energy Systems, ARB Case No. 95-110, ALJ Case Nos. 94-ERA-6, 95-CAA-
2, Fin. Dec. and Ord., Dec. 4, 1996, slip op. at 9-10 (discovery unnecessary because complainant had
personal knowledge of evidence concerning identity of her employer). In sum, the ALJ's limitation on
discovery was neither arbitrary nor an abuse of discretion. Robinson v. Martin Marietta Services,
Inc., ARB Case No. 96-075, ALJ Case No. 94-TSC-7, ARB Fin. Dec. and Ord., Sept. 23, 1996,
slip op. at 4.
B. Request for Protective Order
Joe La Grone, retired Manager of Oak Ridge Operations, requests that the Board
issue a protective order continuing the protection afforded by the ALJ's May 18, 1996 Order Granting
Non-Party Motion for Protective Order, which limited the use of La Grone's October 30, 1995 videotape
deposition (also taken by stenographic means) to the instant proceeding unless the ALJ ruled otherwise.
The ALJ's protective order expired by its terms upon our assumption of jurisdiction. Id. at 2. The
ALJ's order was predicated on an agreement between counsel for La Grone and Complainants so that the
videotaping could proceed although La Grone had not received proper notice of the taping or its purpose
prior to his arrival at the deposition. La Grone Dep., Vol. I, at 4-8.
Complainants' counsel opposes a new protective order. He argues that La Grone's
motion is a sub rosa attempt by DOE to preclude use of the videotapes in proceedings before the
Equal Employment Opportunity Commission involving complainant McQuade and to interfere with
Complainants' First Amendment rights. La Grone denies that DOE influenced his motion to the Board.
He states that the only reason he agreed to the videotape deposition was because he was going to be
unavailable on the expected ALJ hearing date and Complainants' counsel agreed to limits on its use. (We
do not know whether McQuade's EEOC matter remains pending at this time.)
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We decline to issue a new protective order limiting the use of the videotape
deposition to the instant proceeding and barring its disclosure "to any other person or entity unless
the Court and/or Administrative Review Board rules otherwise" (La Grone's proposed order). La
Grone has not shown that issuance of such an order is required by justice under 29 C.F.R.
§18.15(a), particularly since he does not oppose dissemination of the transcribed version of the
identical deposition and is not subject to further burden or embarrassment because the videotape deposition
has already been taken. We believe that the interests of justice are best served by not restricting use of the
videotapes. Holden v. Gulf States Utilities, Case No. 92-ERA-44, Sec. Dec. and Rem. Ord.,
Apr. 14, 1995, slip op. at 7-9.
C. Requests to Supplement Record
Complainants' counsel submitted several documents to the Board during the briefing
period and subsequent thereto, seeking to have them considered. These materials include a March, 1997
report of the U.S. General Accounting Office entitled "Nuclear Employee Safety Concerns--
Allegation System Offers Better Protection, but Important Issues Remain"; a February 21, 1990
DOE memorandum captioned "Visit of the House Energy and Commerce Committee/Oversight and
Investigations Subcommittee staff to Oak Ridge, February 14-16, 1990," involving ORO Personnel
Security Branch employee complaints that a number of their security clearance recommendations were
overturned; a July 31, 1991 letter to the Secretary of Energy from John D. Dingell, Chairman of the House
Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, involving
McQuade; an April, 1996 Energy Department report entitled "Independent Oversight Baseline
Assessment of the Effectiveness of Safety and Security Management Programs within the Department of
Energy"; July 2, 1997 Knoxville News-Sentinel and October 22, 1997 Associated
Press and USA Today articles concerning security problems at DOE facilities; a May 18,
1998 Knoxville News-Sentinel article reporting a deposition by former DOE Secretary Hazel
O'Leary involving a lawsuit brought by an Oak Ridge employee (not one of the complainants in this case);
April 1 and May 13, 1998 Knoxville News-Sentinel articles involving purported harassment
against Oak Ridge nuclear couriers; an article by Nahum Litt, "Doing It with Mirrors: The Illusion
of Independence of Federal Administrative Law Judges" ABA Judges' Journal
27 (Spring 1997); and an article by Leonard W. Shroeter, "Human Experimentation, the Hanford
Nuclear Site, and Judgement at Nuremberg," 31 Gonzaga L. Rev. 147 (1997). None of
these materials is relevant to the issue before us on appeal, i.e., whether Complainants have stated
a claim under the CAA, SDWA, SWDA or CERCLA. We therefore decline to reopen the record to
admit these post-hearing documentary submissions.
In addition, on May 22, 1998, Complainants' lead counsel submitted to this Board
the autopsy report on the presiding ALJ, who died several months after issuing the R. D. and O. The
autopsy report ostensibly was submitted to demonstrate that the ALJ was in some way unbalanced, and
that her rulings therefore were tainted.
An administrative law judge's decisions stand or fall on their merits. We have
reviewed the record in this case, and find nothing improper in any of the rulings of the presiding ALJ.
Indeed, it is clear that the ALJ went to extraordinary lengths to be fair and objective to Complainants,
notwithstanding the difficult behavior of their counsel.
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Attorneys have a professional obligation to demonstrate respect for the courts.
See ABA Model Rules of Professional Conduct Rules 3.5 and 8.2 (1999); 29 C.F.R.
§18.36. It is clear to us - as it no doubt was clear to counsel - that the autopsy report is completely
irrelevant to the merits of Complainants' challenge to the ALJ's rulings. To the extent that the report is
offered by counsel in an effort to sully the reputation of the ALJ posthumously, such a personal attack is
contemptible. The May 22, 1998 letter and autopsy report are excluded from the record in this case.
CONCLUSION
Sovereign immunity protects DOE from suit under the whistleblower provisions of
the ERA and TSCA. Complainants Virginia Johnson, Kenneth W. Warden, and Dennis McQuade have
failed to establish, as a matter of law, that their alleged activities were protected under the CAA, SDWA,
SWDA, or CERCLA. Therefore, Complainants failed to state a claim upon which relief can be granted,
and the complaints are DISMISSED.
SO ORDERED.
PAUL GREENBERG
Chair
E. COOPER BROWN
Member
CYNTHIA L. ATTWOOD
Member