1 This appeal has been assigned to a panel
of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May
3, 1996).
2 The Administrative Review Board
has jurisdiction to decide these appeals under 29 C.F.R. §24.8 (2000) and 29 C.F.R.
§1978.109 (2000).
3 The U.S. Office of Special
Counsel (OSC) is an independent federal investigative and prosecutorial agency whose authority is
derived from the Civil Service Reform Act, 5 U.S.C. §1101 et seq.(1994); the
Whistleblower Protection Act, 5 U.S.C. §2302(b) (1994); and the Hatch Act, 5 U.S.C.
§7323 (1994).
4 The Whistleblower Protection Act
prohibits the taking of a personnel action because of
any disclosure of information by an employee . . . which the employee
. . . reasonably believes evidences--(i) a violation of any law, rule, or
regulation, or (ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health
or safety, if such disclosure is not specifically prohibited by law and if
such information is not specifically required by Executive order to be
kept secret in the interest of national defense or the conduct of foreign
affairs . . . .
5 U.S.C. §2302(b)(8) (1994).
5 DOE and Westinghouse responded
to the show cause order by filing supported motions to dismiss.
6 Rockefeller devotes a substantial
portion of his opening brief to his argument that Flor held that government employees are
covered by the STAA. Complainant's Opening Brief (Rockefeller I Br.) at 8-16. Among other
things, Rockefeller argues that Congress endorsed Flor by its silence in 1994, that is, when
Congress recodified the STAA in July 1994 it implicitly approved the holding in Flor because
"Congress is presumed to be aware of an administrative . . . interpretation of a statute and to adopt
that interpretation when it reenacts a statute without change," Id. at 12, quoting
Lorillard v. Pons, 434 U.S. 575, 580 (1978). However, Flor was decided on December
9, 1994 (after the STAA's recodification) and not on December 9, 1993,
as Rockefeller asserts. See United States Department of Labor, Office of Administrative Law
Judges, OALJ Law Library, Whistleblower Case List on the Internet at www.oalj.dol.gov. Congress
could not have endorsed a decision that had not yet been issued. We note that elsewhere in his
brief Rockefeller cites to Flor with the correct date. See, e.g.,Rockefeller I
Br. at 5.
We also note that cases cited by Rockefeller in his Opening Brief in
Rockefeller II, III, and IV for the same proposition--that the STAA covers government
employees--do not address that issue. Indeed, the STAA was not even raised in those cases. See
Tyndall v. Environmental Protection Agency, Case Nos. 93-CAA-6, 95-CAA-5, ARB Dec. (June
14, 1996); Jenkins v. Environmental Protection Agency, Case No. 92-CAA-6, Sec'y Dec. (May
18, 1994).
7See, e.g., Greenwald v. City
of North Miami Beach, Fla., 587 F. 2d 779 (5th Cir. 1979), in which a city employee appealed his
termination to the local Civil Service Board, which upheld his discharge. The complainant then filed
a complaint under the Safe Drinking Water Act 115 days after his termination but only 20 days after the
action of the Civil Service Board. The Fifth Circuit held that "the remedy provided by the
[SDWA] is entirely independent of any local remedies [and] the fact that Greenwald sought local Civil
Service Board review of his discharge did not toll the 30-day time limitation for filing a claim under the
[SDWA]." Id. at 780.
Similarly, in Lewis v. McKenzie Tank Lines, Inc., Case No. 92-STA-20,
Sec'y Dec. Nov. 24, 1992, the complainant filed a complaint of age discrimination with the EEOC under
the Age Discrimination in Employment Act alleging that the he had been fired for "a safety related
refusal to drive [while] Respondent allegedly did not fire other, younger employees who acted
similarly." Id. at 2. The Secretary held that the claim was not asserted under the STAA
and therefore did not constitute the precise claim raised in the wrong forum. Id., slip op. at 2-3.
See also Grace v. City of Andalusia Waste Water Treatment Facility, ARB Case No. 96-059,
ARB Dec. (Sept. 23, 1996), slip op. at 2 (administrative appeal of discharge before city commission
which did not raise Water Pollution Control Act does not toll statute of limitations); Kelly v. Flav-O-
Rich, Case No. 90-STA-14, Sec'y Dec. (May 22, 1991), slip op. at 2 (claim before State
Employment Security Commission not asserting STAA violation is not precise claim raised in wrong
forum).
8 We note that before us
Rockefeller's counsel has repeatedly misstated the holding in the OHA D&O, asserting that OHA held
that the search and copying fee was "illegal." See Rockefeller Opening Brief in
Rockefeller II, III, and IV at pp. 3, 6, 10, 14, 21, 30. OHA actually upheld the fee and
denied Rockefeller's FOIA fee waiver appeal.
9 Westinghouse indicates in its
Reply Brief in Rockefeller II, III, and IV that it filed its motion to dismiss by Federal Express
in order to meet the November 27, 1998 deadline set by the ALJ because the regulations provide that
documents are not deemed filed until they are received by the Chief Clerk of the OALJ. 29 C.F.R.
§18.4(c)(1). It served the motion on Rockefeller by mailing it on November 24, 1998, in
compliance with 29 C.F.R. §18.4(c)(2).
10 In light of our disposition of
these cases we need not address the Rockefeller I ALJ's suspension of Rockefeller's counsel
from further participation in the case before him. We point out that this attorney again has engaged in
personal and vituperative attacks on Department of Labor ALJs. See Johnson v. Oak Ridge
Operations Office, ARB Case No. 97-057, ARB Final Dec. and Ord., slip op. at 14-15 (Sept. 30,
1999); Williams and Farver v. Lockheed Martin, ARB Case Nos. 99-054, 99-064, ARB Final
Dec. and Ord., slip op. at 5-6 and n.6 (Sept. 29, 2000). The level of invective with which counsel
describes the work of the ALJs in these cases is offensive, and the characterizations of the ALJs' actions
are factually inaccurate and insulting. As we have previously noted, attorneys have a professional
obligation to demonstrate respect for the courts. See ABA Model Rules of Professional
Conduct, Preamble, Rules 3.5 and 8.2 (1999); 29 C.F.R. §18.36. Once again counsel for
Rockefeller has exhibited his disregard of that professional obligation.