U.S. Department of Labor Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C 20001-8002
DATE: December 22, 1993
CASE NO.: 92-TSC-5
In the Matter of:
WILLIAM L. MARCUS, Ph.D.
Complainant
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY
Respondent
ORDER REFERRING COMPLAINANT'S MOTION TO THE SECRETARY OF LABOR
Dr. William Marcus, Complainant, requested a
temporary restraining order and an injunction requiring that the
U.S. Environmental Protection Agency (hereinafter
"E.P.A."), Respondent, take action to prevent the
termination of the employee health insurance plan that covers Dr.
Marcus and his family. This case has been pending before the
Secretary of Labor for issuance of a final decision since
December 3, 1992.
This matter arises under the employee protection
provisions of the Toxic Substances Control Act, 15 U.S.C. S 2622;
Safe Drinking Water Act, 42 U.S.C. S 300j-9(i); Clean Air Act, 42
U.S.C. S 7622; Solid Waste Disposal Act, 42 U.S.C. § 6971;
Water Pollution Control Act, 33 U.S.C. § 1367; and
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. § 9610, and the regulations promulgated
thereunder, found at 29 C.F.R. Part 24. Additionally, the Rules
of Practice and Procedure for Administrative Hearings before the
Office of Administrative Law Judges, 29 C.F.R. Part 18, governs
[Page 2]
conduct in this case.
PROCEDURAL HISTORY
On January 13, 1992, E.P.A. discharged Dr. Marcus,
an environmental toxicologist who had been employed by E.P.A. for
eighteen years. Dr. Marcus filed for whistleblower protection
with the U.S. Department of Labor (hereinafter "DOL").
29 C.F.R. §§ 24.3, 24.4. A hearing on the record was
held in Washington, D.C., on July 14 through 17 and August 4 and
5, 1992, and the record closed on October 19, 1992.
On December 3, 1992, I issued a Recommended
Decision and Order, which included findings of fact and
conclusions of law. I found that E.P.A. had fired Dr. Marcus
because he publicly questioned and opposed E.P.A.'s fluoride
policy. I recommended inter alla that the Secretary order
E.P.A. to reinstate Dr. Marcus's lost wages and benefits;
reimburse Dr. Marcus for costs borne out-of-pocket due to lost
benefits, such as health care; and refrain from taking further
adverse action against Dr. Marcus, except for good cause shown.1 (D&O at 27-28.) To
date, the Secretary has not issued a final order. § 24.6(b).
1DOL regulations
in whistleblower cases require that the administrative law judge
issue appropriate findings, conclusions and a recommended order,
and forward these, together with the record, to the Secretary of
Labor for a final order. 29 C.F.R. § 24.6(a).
2Dr. and Mrs.
Marcus were notified on or near November 15, 1993, that their
health insurance benefits would be terminated effective December
16, 1993. (Affidavits of Dr. Marcus and Elaine Marcus.) While the
motion states that Dr. Marcus has tried to resolve this issue
with E.P.A., (C1. Mtn. at 3-4), it does not state the reason for
submitting the request to this Office one day before the benefits
were to expire.