Date: June 27, 1994


CASE NO.  94-TSC-5

IN THE MATTER OF

     JUDY K. STEPHENSON, 
               Complainant,  

        v.

     NATIONAL AERONAUTICS & SPACE ADMINISTRATION;
                    Respondent



               RECOMMENDED ORDER DISMISSING COMPLAINT

     The National Aeronautics & Space Administration (NASA) has
moved to dismiss the complaint filed against it and some of its
employees on a variety of grounds.  Having considered the
arguments advanced in support of this motion as well as the
responses in opposition thereto, it is recommended that the
complaint be dismissed.  The bases for this recommendation
follows.

     The informal complaints upon which this proceeding is based
begins with a letter dated February 11, 1994 addressed to the
Administrator of the Wage and Hour Division of the United States
Department of Labor.  It was signed by complainant and her
counsel.  This letter recites that the complainant is filed
pursuant to the Toxic Substance Control Act (TSCA) against
complainant's joint employers Martin Marietta Services
Corporation, Martin Marietta Corporation, the JSC, NASA, and two
NASA employees.  In subsequent amendments to this informal
complaint, counsel for complainant named two additional NASA
employees as parties respondent as well as an employee of the
Wage and Hour Division of the United States Department of Labor. 
Subsequent to the referral of this case for adjudication, counsel
for NASA and the NASA respondents filed a motion for summary 
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decision to dismiss.  This motion argues inter
alias, that this proceeding which was initially
based solely on an alleged violation of the employee protection
provision of TSCA codified as 15 U.S.C. § 2622, should be
dismissed under the doctrine of sovereign immunity.  Thereafter,
complainant filed a consolidated complaint in which she, for the
first time, asserted that the alleged discriminatory practices to
which she was subjected violated the employee protection
provisions of both the TSCA and the Clean Air Act (CAA). 
Thereafter, NASA filed a supplement to its motion in which it
argues that the complaint filed by complainant under CAA should
also be dismissed.  The asserted basis for dismissal of the
complainant under CAA is that any such claim is barred by the
thirty-day statute of limitations applicable to complaints under
CAA and that the employee protection provision of CAA is
inapplicable because the substantive matters complained of by
complainant (her safety concerns) is not shown to have been
related to any matter regulated under CAA. 

     Prior to this order, the five individual respondents named
herein have been dismissed on the basis that they are not
employers; hence, they are not proper parties respondent in these
proceedings.  Additionally, a recommended order has been entered
in which it has been recommended that the two corporate
respondents be dismissed on the basis of a settlement they have
entered into with complainant.  Thus, the sole remaining
respondent in this proceeding is NASA.

     NASA cogently argues that the sovereign immunity of the
United States has not been waived for proceedings initiated under
15 U.S.C. § 2622 alleging violations of the employee
protection provisions of TSCA.  NASA points out that Congress
expressly and unequivocally waived sovereign immunity for citizen
suits under 15 U.S.C. §2619(a)(1) by identifying the "United
States" as a person against who a civil action may be brought in
the United States District Court.  In contrast, Congress made no
such express waiver in 15 U.S.C. § 2622.  The United States
is not identified in this latter statute as a "person" against
whom a complaint may be filed and no other provision of TSCA
defines a "person" to include the United States.

     NASA further points out that in four similar environmental
statues (CAA, 42 U.S.C. § 7622; the Safe Drinking Water Act,
42 U.S.C. § 300j-9(i); Solid Waste Disposal Act, 42 U.S.C.
§ 6971 and the Comprehensive Environmental Response
Compensation, and Liability Act, 42 U.S.C. § 9610(a) a
"person" is expressly defined to include the United States
thereby waiving sovereign 
[PAGE 3]
immunity in clear terms.  I contrast no such expressed waiver is
contained in 15 U.S.C. § 2622.  It is thus clear that
sovereign immunity has not been expressly waived under the
employee protection provision of TSCA.  

     It is well established that the United States, as sovereign,
is immune from suit except to the extent that it consents to be
sued.  United States v. Testan, 424 U.S. 392 (1976). 
Unless expressly waived, sovereign immunity exist as the rule,
not the exception.  State v. Sparks, 978 F.2d 226 (5th
Cir. 1992).  Thus, a waiver of sovereign immunity cannot be
implied but must be unequivocally expressed.  United States v.
Mitchell, 445 U.S. 535.

     Complainant's response to this argument is that other
whistleblower statutes containing similar or identical language
as that contained at 15 U.S.C. § 2622 have been construed as
permitting suits against federal agencies.  Therefore,
complainant argues, the whistleblower statute under TSCA should
also be construed as permitting suits against federal agencies. 
This argument overlooks the critical distinction between 15
U.S.C. § 2622 and the other employee protection statues
cited.  The former does not waive sovereign immunity whereas the
latter statues do.

     Since no case has been cited in which the Secretary has
upheld jurisdiction under TSCA when that jurisdiction has been
challenged on the basis of sovereign immunity, it is concluded
that a proceeding under 15 U.S.C. § 2622 cannot be
maintained.  NASA, as an agency of the United States government
has not waived its sovereign immunity from suit under that
statute.  It is therefore recommended that complainant's
complaint against NASA under 15 U.S.C. § 2622 be dismissed.

     In its supplemental motion to dismiss NASA argues that
complainant's consolidated complaint which alleges a violation of
the employee protection statute under CAA (42 U.S.C. § 7622)
as well as the similar provision under TSCA, should also be
dismissed for essentially four reasons.  First it is argued that
complainant failed to timely file a complaint under CAA within
thirty-days as is required under 42 U.S.C. § 7622(b) and 29
C.F.R. § 24.3.  For failing to timely file, NASA argues
complainant has waived any claims she may have pursuant to CAA. 
Secondly, NASA argues that no United States Department of Labor
investigation was timely conducted on the allegations of
discrimination under CAA which is a prerequisite to a hearing
pursuant to 42 U.S.C. § 7622.  Third, NASA argues that
complainant has made no specific showing that CAA is applicable 
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to the facts presented in this proceeding.  Finally, NASA argues
that complainant has failed to state a claim under CAA upon which
relief may be granted.  

     It is first of all clear that the failure of the Wage and
Hour Administrator to timely investigate or give timely notice of
the filing of an informal complaint to an employer does not
deprive the Secretary of jurisdiction over the complaint. 
Sawyers v. Baldwin Union Free School District, 88-TSC-1
(Secretary, October 5, 1988). The jurisdictional facts upon which
this claim is based is set forth in paragraphs 2 and 3 of
complainant's informal complaint dated February 11, 1984.  There
she states:

     I am the victim of vicious retaliation that
     "intimidates, threatens, restrains, coerces, black-
     list, [constructively] discharges" and otherwise
     discriminates against an employee who has reported
     misuse of toxic substances at NASA and its IG.  29
     C.F.R. § 24.2(b).  The protected activity
     substances involves a potential life safety hazard from
     toxic that can enter the body through two pathways: (a) 
     Through cannulae and, (b) associated plastic tubing and
     through "off gassing" within the space capsule.

     Some forty-five times during the current Space Shuttle
     flight, astronauts will pierce their arms with cannula
     and expose their entire blood stream and body to
     needless residues of ethylene oxide and freon, two
     toxic substances that are not recommended for the
     purpose for which they are being used by
     respondents....The hazardous substances will be inside
     the space craft for all to breathe. 

      These same facts are recited in substantially the same form
in paragraphs 19 and 20 of complainant's consolidated complaint
filed April 19, 1994.  To the extent that complainant is claiming
CAA jurisdiction based on a hazard within the space craft as
distinguished from CAA jurisdiction based on an atmospheric
hazard outside the space craft, these recitations of fact amply
give NASA notice of complainant's theory of liability.

     Complainant's informal complaint would pass muster even
under the more stringent pleading requirements of Fed. R. Civ. P.
8(a)(1).  It is not essential under that rule that the complaints
set forth the statutory basis for the Court's jurisdiction if the
facts alleged provide a basis for the assumption of jurisdiction. 

[PAGE 5]
Rohler v. TRW, Inc., 576 F.2d 1260 (7th Cir. 1978).  To
the extent that there is a deficiency in complainant's informal
complaint, that deficiency goes to the absence of any specific
recitation of facts showing that the "off gassing" of ethylene
oxide and freon was subject to regulation under CAA.  That
deficiency is not however jurisdictional.  Hildebrand v.
Honeywell, Inc., 622 F.2d 179 (5th Cir. 1980).

     It is therefore concluded that complainant's failure to
claim in her informal complaint that the initial safety concerns
she reported which allegedly resulted in respondents'
discriminatory conduct against her, related to a matter which was
regulated under CAA does not, by itself, warrant the dismissal of
her claim under 42 U.S.C. § 7622.  The remaining question
concerns whether the deficiencies in complainant's subsequent
pleadings warrants the requested dismissal based on a failure by
complainant to set forth facts showing the statutory basis of her
claim.  

     Due to the confusion created by numerous amendments to
complainant's informal complaint and the desirability of
facilitating the cogent articulation of the issues and the
framing of those issues, the undersigned directed complainant to
file a consolidated complaint and that respondents answer that
complaint.  Pursuant to that order, complainant filed a forty-
four page consolidated complaint which, unfortunately, did not
achieve the desired goal of clarifying the issues.  To the extent
that there are any allegations in that consolidated complaint
going to the asserted statutory basis for complainant's
complaint, those allegations are contained in paragraphs 12 and
47 of the consolidated complaint.  They provide:

     12.  The President of the United States has not issued
     any "national defense waiver" or finding that NASA JSC
     Operations are exempt from TSCA.  15 U.S.C. §
     2621.  Therefore, NASA and its contractors are
     obligated to comply with TSCA's substitutive
     provisions, as well as those of the Clean Air Act.

     47.  The ethylene oxide and freon are shipped in
     interstate commercial and are toxic substances
     regulated by TSCA.  15 U.S.C. § 2602. 
     Complainant's expressions of valid medical concerns
     about toxic substances are protected by TSCA and CAA.

     In its answer to this complaint, NASA raised as one its
defenses:

[PAGE 6]

     The Complainant has made no specific showing that the
     Clean Air Act, 42 U.S.C. § 7401 et
     seq., and in particular, 42 U.S.C. §
     7622(a), is applicable to the facts alleged in her
     Complaint.

NASA's answer at p. 22.

Thereafter, NASA filed its supplement to its previous motion to
dismiss in which it, inter alias, argued for
dismissal for failure of complainant to make a specific showing
that CAA is applicable to the facts alleged and failure to state
a claim under 42 U.S.C. § 7622(a).  The undersigned issued a
show cause order directing complainant to show cause why the
complaint should not be dismissed for the reasons set forth in
NASA's supplemental motion.  Complainant filed a brief response
to the supplemental motion and expressly waived its right to file
any further response to that motion or the show cause order
issued with respect thereto.  

     Given the foregoing status of the pleadings and posture of
this case, it is found that the consolidated complaint filed
herein is deficient in that it fails to allege or state facts
showing the statutory basis for complainant's claim under CAA. 
There is simply no allegation in complainant's complaint which
would support the conclusion that the safety matter which
complainant complained of which allegedly resulted in the claimed
discriminatory action against her, is, in fact, regulated under
CAA.  It is further found that complainant has had ample
opportunity to cure this deficiency by amending her complaint. 
Since she has not done so, she has waived her right to amend and
the sufficiency of her complaint must be determined as it is
presented.  Under these circumstances, and keeping in mind that
she has at all times been represented by counsel who has
extensive knowledge of the procedures applicable in these
proceedings, it is recommended that her complaint alleging a
violation of 42 U.S.C. § 7622 also be dismissed.  Since this
claim represents the sole remaining claim that has not been
disposed of by this order or previous orders, it is recommended
that the complaint be dismissed.

                         RECOMMENDED ORDER

     IT IS THEREFORE ORDERED that the complaint herein alleging
violations of 15 U.S.C. § 2622 and 42 U.S.C. § 7622 be
dismissed.

     

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                              ___________________________________
                              QUENTIN P. MCCOLGIN
                              ADMINISTRATIVE LAW JUDGE


Metairie, Louisiana
QPMC:daq