NOTICE: This newsletter was created solely to assist the staff of the Office of Administrative Law Judges in keeping up to date on whistleblower law. This newsletter in no way constitutes the official opinion of the Office of Administrative Law Judges or the Department of Labor on any subject. The newsletter should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool, and is not intended as final legal authority and should not be cited or relied upon as such.

[Nuclear & Environmental Digest II B 2]
JURISDICTION; APPLICABILITY OF CAA TO INDOOR AIR POLLUTION

In Veasaw v. Texas Hydraulics, Inc., 1998-CAA-5 (ALJ Oct. 5, 1998), Complainant's CAA whistleblower complaint alleged poor air quality exclusively in the manufacturing and office areas of Respondent's facility, and was later amended to include an undefined area outside the plant into which gases or vapors may have been dispelled by ventilation fans and open doors. The ALJ found that the CAA was inapplicable to the "indoor air quality complaints and the alleged speculative, residual outdoor contamination which form the basis of Complainant's complaint." Slip op. at 19. The ALJ observed that even if some outdoor venting had occurred, the record contained no evidence whether such releases were adverse to the health of the general public.

The ALJ, however, went on to consider the merits of the complaint, because Complainant may have had a cognizable complaint, "if he reasonably believed Respondent violated the Clean Air Act." Slip op. at 19. Finding against Complainant on the merits on several grounds, the ALJ made the finding that Complainant could not have so reasonably believed, because "he admittedly knew the Act was not applicable to indoor air quality." Slip op. at 23.

[Nuclear & Environmental Digest II C 1]
STANDING OF ESTATE TO BRING ERA COMPLAINT

In Ricketts v. Northeast Utilities Corp., 1998-ERA-30 (ALJ Oct. 29, 1998), the ALJ considered whether an estate can bring an action under the whistleblower provision of the ERA. Finding no direct authority in the DOL regulations, the ALJ looked to Fed. R. Civ. P. 17(a), and found that Complainant, as Administratrix of Decedent's estate, has standing to bring an ERA whistleblower complaint. Compare Billings v. Tennessee Valley Authority,1991-ERA-12 (ARB June 26, 1998)(citing Fed. R. Civ. P. 25(a)), for the proposition that a representative of a deceased complainant may be substituted as a party in an ERA complaint that had already been filed).

[Nuclear & Environmental Digest III B 2]
TIMELINESS; TRIGGER DATE MUST OCCUR DURING LIFETIME OF EMPLOYEE

In Ricketts v. Northeast Utilities Corp., 1998-ERA-30 (ALJ Oct. 29, 1998), the ALJ, in ruling on Respondent's motion for summary judgment and therefore viewing the facts most favorably for the non-moving party, held that the date for starting the limitations period for filing a whistleblower complaint by the estate of a deceased employee was the date of the decedent's death. The ALJ rejected the argument by Complainant that the date the Administratrix learned of some incriminating information -- several months after the employee's death -- should trigger the limits period. The ALJ also rejected Complainant's alternative argument that the trigger date should be the day following the employee's death. In both instances, the ALJ reasoned that the definite notice of a challenged employment decision must take place during the employee's lifetime -- therefore the date the Administratrix learned of the allegedly incriminating information or learned of the employee's death had no bearing on the time period for filing an ERA whistleblower complaint.

The record also contained evidence in the form of personal notes of the employee indicating that he had been harassed on a certain date several weeks before his death. Respondent contended that this date should be the trigger date for the limitations period rather than the date of death. The ALJ, however, held that under the standard for summary judgment, it was possible that the employee suffered harassment up until the day of his death, and therefore rejected Respondent's contention that the trigger date should be earlier.

[Nuclear & Environmental Digest IV B 2]
TIMELINESS; EQUITABLE TOLLING

In Ricketts v. Northeast Utilities Corp., 1998-ERA-30 (ALJ Oct. 29, 1998), the ALJ found that exceptional circumstances existed to toll the limitations period for filing a whistleblower complaint for the period between when the employee's surviving spouse filed with the state probate court to be appointed administratrix of the employee's estate, and the probate court's order appointing her as such.

[Nuclear & Environmental Digest IV B 2]
TIMELINESS; EQUITABLE TOLLING BASED ON COMPLAINANT'S MENTAL ILLNESS

In Hall v. EG&G Defense Materials, Inc., 1997-SDW-9 (ARB Sept. 30, 1998), Complainant sought to invoke equitable tolling of the time period for filing his environmental whistleblower complaints based on a claim that prior to and continuing through the filing period he suffered from severe depression. The ARB recognized that arguably this ground fits the "in some extraordinary way prevented from asserting rights" ground for equitable tolling, see School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3rd Cir. 1981), but held that Complainant must make a particularly strong showing -- that the illness in fact prevents the sufferer from managing his affairs, understanding his or her legal rights, and acting on them -- or, under and even more stringent test -- that the sufferer has been adjudged mentally incompetent or was institutionalized during the filing period. Complainant filed a report by a psychiatrist, but the ARB found that nothing in the report indicated that Complainant was not capable of handling his affairs or understanding his legal rights. Complainant's own affidavit likewise failed to assert that he was unable to understand his legal rights. Moreover, other evidence of record indicated that Complainant in fact was capable of understanding and addressing his legal rights during this period of time: signing a settlement agreement in a divorce action, and testifying in a workers' compensation proceedings. The ARB also noted that even if Complainant's mental condition was a basis for equitable tolling, he would still face an additional hurtle in that he was represented by counsel during the relevant period.

[Nuclear & Environmental Digest IV B 3]
TIMELINESS; WRONG FORUM

In Amato v. Assured Transportation & Delivery, Inc., 1998-TSC-6 (ALJ Sept. 16, 1998), the ALJ recommended a finding that, although Complainant's complaint was not filed with OSHA within 30 days after his termination from employment by Respondent, it was filed within 30 days with the State of California Department of Industrial Relations, and therefore must be considered as sufficient to equitably toll the 30-day time limitations of the TSCA as a complaint filed within 30 days but in the wrong forum.

[Nuclear & Environmental Digest IV B 3]
TIMELINESS; FILING WITH MSPB INSTEAD OF DOL DOES NOT FIT WITHIN WRONG FORUM EQUITABLE TOLLING EXCEPTION

Where Complainant filed an appeal with the Merit Systems Protection Board (MSPB) of a notice of proposed removal, the ALJ, in a recommended decision on Respondent's motion for summary decision, rejected Complainant's contention that the "wrong forum" equitable tolling exception was invoked to toll the CAA limitations period for filing a whistleblower complaint. The ALJ found that "[t]he MSPB is not a 'wrong forum' but merely a different remedial forum." Slip op. at 4. Rockefeller v. U.S. Dept. of Energy,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).

[Nuclear & Environmental Digest IV C 4]
TIMELINESS; ORAL COMMENT IN MEETING WITH EPA EMPLOYEE

In Rockefeller v. U.S. Dept. of Energy,1998-CAA-10 and 11 (ALJ Sept. 28, 1998), Complainant asserted that he was entitled to equitable tolling of the limitations period because he had made a comment at a public meeting being conducted by an EPA agent, and the EPA should have told him to file a complaint with DOL. The ALJ found this contention to be without merit.

[Nuclear & Environmental Digest V A]
COLLATERAL ESTOPPEL; OSHA INVESTIGATION

In McLaughlin v. Federal Research, Inc., 1997-TSC-7 (ALJ Aug. 21, 1998), the ALJ reported a bench ruling during a pre-hearing conference in which he ruled that an OSHA investigation resulting in a finding of no violation, purportedly on the same facts asserted in the instant environmental whistleblower matter, did not rise to meet the legal standards for invocation of the collateral estoppel doctrine.

[Nuclear & Environmental Digest VI E]
TIMELINESS OF REQUEST FOR HEARING; ACTUAL RATHER THAN CONSTRUCTIVE RECEIPT

In Mastrianna v. Northeast Utilities Corp.,1998-ERA-33 (ALJ Oct. 26, 1998), OSHA sent a certified letter to Complainant denying his complaint. The United States Postal Service delivered a notice of the certified letter to Complainant's post office box on two dates. Complainant and his counsel, however, had limited access to the post office box, and did not learn of the determination letter until Respondent's counsel faxed them a copy. Complainant filed a request for hearing that was timely if calculated from the date of the fax, but not if Complainant was found to have constructively received the certified letter. The ALJ held that constructive receipt is not a consideration in ERA whistleblower hearing requests, citing Stakkelunas v. Northeast Utilities Co.,1998-ERA-7 (ARB May 4, 1998). The ALJ also rejected Respondent's contention that Complainant was somehow negligent or irresponsible in his receipt of mail.

[Nuclear & Environmental Digest VII A 1]
DISCOVERY; BALANCE BETWEEN NEED FOR BROAD RANGE AND POINT WHEN DISCOVERY IS BEING USED TO HARASS OPPOSING PARTY

In Migliore v. Rhode Island Dept. of Environmental Management, 1998-SWD-3 (ALJ Aug. 13, 1998), the ALJ declined to issue a protective order as requested by Respondent, noting that if Respondent has specific objections, it can state its grounds for objection in response to Complainant's discovery request, and Complainant can submit a motion to compel. The ALJ, however, provided the following "guidance to the parties as they embark upon discovery":

   On the one hand, in retaliatory intent cases that are based on circumstantial evidence, fair adjudication of the complaint "requires full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken." ... In cases filed pursuant to the SWD, the Office of Administrative Law Judges' Rules of Practice provide that material and relevant evidence shall not be excluded unless "unduly repetitious." See 29 C.F.R. Part 24.5(e)(1). ... The question of relevancy is to be more loosely construed at the discovery stage than at trial....

   On the other hand, discovery requests should be tailored to the specifics of each case and broad, generalized discovery requests, while well- intentioned at the time of issuance, may lead the fact-finder to infer that the requests are not made in good faith but are designed to harass the opposing party and to greatly prolong/exacerbate the litigation process. There is some point at which past occurrences become too remote to have any real bearing on the matters at issue.

Slip op. at 2 (citations omitted).

In an order several weeks later, the ALJ granted in part Respondent's for a protective order limiting the scope of questioning of 12 deponents, based on the ALJ's conclusion, after reviewing the allegations in the complaint and the parties' respective arguments, that discovery should be limited to activity after August 1, 1995. Migliore v. Rhode Island Dept. of Environmental Management, 1998-SWD-3 (ALJ Sept. 1, 1998). The ALJ found that this limitation struck the appropriate balance between Complainant's right to discovery and Respondent's right to have discovery curtailed to reasonable limits. In the same order, the ALJ granted Respondent's motion to cancel the deposition of Respondent's Director on the ground that the Director is a high government official who should not be subject to deposition without a showing of cause and an inability to gather the information sought through other means. The ALJ ruled, however, that if subsequent discovery disclosed that the Director was an active participant in the allegedly discriminatory conduct, Complainant could seek permission to depose the Director.

[Nuclear & Environmental Digest VII A 4]
DISCOVERY; OMBUDSMAN'S PRIVILEGE

In Sayre v. Alyeska Pipeline Co., 1997-TSC-6 (ALJ Sept. 2, 1998), the ALJ granted in part and denied in part Complainant's motion to compel the production of certain documents. In regard to Complainant's request for documents pertaining to investigations conducted by Respondent's Employee Concerns Program (ECP) in regard to Complainant's concerns, the ALJ found that neither the self-critical analysis nor the Ombudsman's privilege applied to Complainant's own concerns as raised with the ECP because the confidentiality element had been destroyed by Complainant's consent to release of the documents. The ALJ found, however, that Respondent should review and redact information that identifies such witnesses to whom confidentiality was promised or by whom it was requested.

Complainant also sought an order to compel disclosure of the case file numbers, a detailed summary of findings, and the name of the ECP investigator who investigate retaliatory treatment towards individuals assigned to certain contracts. The ALJ denied this request because it was overbroad, not limited in time or scope, and the information sought fits within the Ombudsman privilege. See Kientzy v. McDonnell Douglas Corp., 133 F.R.D. 570 (E.D. Mo. 1991)(communication must be one made in belief that it will not be disclosed; confidentiality must be essential to maintenance of relationship between the parties; relationship should be one that society considers noteworthy of being fostered; injury to relationship incurred by disclosure must be greater than benefit gained in correct disposal of litigation). The ALJ found that the potential injury that would be inflicted by release of the information to Complainant would far outweigh the benefit. The ALJ was influenced by the fact that Complainant sought ECP investigations conducted in regard to concerns raised by other employees.

[Nuclear & Environmental Digest VII A 5]
PROTECTIVE ORDER

In Rimar v. Environmental Protection Agency,1998-SDW-2 (ALJ Oct. 14, 1998), the ALJ granted Respondent's motion for a protective order, setting conditions on certain materials responsive to certain interrogatories and document production requests made by Complainant. The ALJ ordered that the information and/or documents must be kept confidential; may be used on in connection with the instant hearing; limited in access to Complainant's counsel, Complainant himself, and Complainant's expert witnesses (all of whom are responsible for ensuring no further release); not discussed to any person outside of the current proceedings; if introduced at the hearing, shall be placed under seal by the ALJ; returned to Respondent at the conclusion of this litigation (including all extracts and information compiled therefrom). The ALJ ordered that the protective order shall remain in full force and effect until modified, superseded or terminated by order of the ALJ.

[Nuclear & Environmental Digest VII C 1]
EMPLOYER; PARENT CORPORATION NOT DISMISSED PURSUANT TO MOTION FOR SUMMARY DECISION WHERE GENUINE ISSUE OF MATERIAL FACT

In Ricketts v. Northeast Utilities Corp., 1998-ERA-30 (ALJ Oct. 29, 1998), the parent corporation of Respondent atomic power plant moved in a motion for summary decision for dismissal as a party on the ground that a parent corporation is not responsible for a subsidiary's violation of law, absent special circumstances. The ALJ denied the motion, finding that Complainant had alleged sufficient facts of discrimination by the parent corporation, and also a requisite connection to the management and operation of the plants where Complainant worked, in its response to the motion to survive the motion for summary judgment -- in other words, Complainant raised a genuine issue of material fact on this issue.

[Nuclear & Environmental Digest VII C 3]
FAILURE TO ESTABLISH PRIMA FACIE CASE; COMPLAINANT WALKED OUT OF HEARING

In Agosto v. Consolidated Edison Co. of New York, 1997-ERA-54 (ALJ July 28, 1998), Complainant, who had become frustrated in questioning witnesses because of an evidentiary ruling by the ALJ that factual issues decided in a prior related hearing would not be relitigated in the instant proceeding, walked out of the hearing with the obvious intent of not returning. The ALJ ruled that Complainant had rested, and Respondent moved for a recommended order of dismissal based on failure of Complainant to establish a prima facie case. The ALJ granted the motion, and memorialized his ruling in a subsequent written decision.

[Nuclear & Environmental Digest VII D 1]
LOCATION OF HEARING

In Allen v. Williams Power Co., 1998-ERA-36 (ALJ Aug. 17, 1998), the ALJ concluded that the hearing should be conducted within 75 miles of Complainant's residence in Michigan. When Complainant originally indicated that he wanted the hearing in Michigan, Respondent filed a response maintaining, inter alia, that it knew of no potential witnesses from the Michigan area, and that all of its potential witnesses would be in the Vermont-New Hampshire-Massachusetts area. Allen v. Williams Power Co., 1998-ERA-36 (ALJ Aug. 3, 1998). The ALJ noted in an earlier order that the regulation at 29 C.F.R. § 24.6(c) provides that the hearing shall, where possible, be held at a place within 75 miles of the complainant's residence, and that the regulation at 29 C.F.R. § 18.27(c) provides that due regard shall be given to the convenience of the parties and the witnesses. The ALJ also noted that Secretary of Labor decisions indicate that the purpose of the regulations is to accommodate a complainant and facilitate the proceeding while recognizing that a hearing near the complainant's residence will not always be appropriate. Id. Thus, the ALJ directed that the parties identify by name and address the witnesses they intended to call. Id.

Upon obtaining the responses, the ALJ noted that the witnesses were scattered (Vermont, Pennsylvania, North Carolina, Mississippi, New York, Illinois and one undisclosed location) and would have to travel no matter where the hearing was conducted. In the absence of specific factors favoring New England as a hearing location, the ALJ found that accommodation of Complainant was appropriate.

[Nuclear & Environmental Digest VII D 2]
TESTIMONY BY TELEPHONE

In Allen v. Williams Power Co., 1998-ERA-36 (ALJ Aug. 17, 1998), the ALJ denied Respondent's request to introduce the testimony of witnesses via telephone to avoid the cost of transporting witnesses scattered throughout different states. The ALJ noted the general rule that deposition testimony in whistleblower hearing is disfavored, and the exceptions, such as non-controversial background material or a critically ill witness. The ALJ concluded that Respondent's broad based request for telephonic testimony of all witnesses failed to establish an extraordinary need for such a process.

[Nuclear & Environmental Digest VII D 2]
TESTIMONY BY AFFIDAVIT

In Smyth v. Johnson Controls World, Inc.,1998-ERA-23 (ALJ July 24, 1998), Complainant indicated in his pre-hearing report that he would not be calling any witnesses because all are presently employed by Respondent, and Complainant did not want to jeopardize their employment and livelihood or subject them to the treatment he allegedly had received. Complainant attached to his report several documents evidently for the purpose of using them as affidavits in lieu of live testimony. The ALJ expressed concern about whether Complainant should be allowed to submit affidavits as evidence, noting the general rule that deposition testimony in whistleblower hearing is disfavored, and the exceptions, such as non-controversial background material or a critically ill witness. The ALJ also noted the Secretary's ruling in English v. General Elec. Co.,1985-ERA-2 (Sec'y Feb. 13, 1992), excluding an affidavit written and offered into evidence by Complainant, because it deprived Respondent of the right of cross examination. The ALJ concluded that the ARB would apply the same logic to the instant case. Moreover, the ALJ noted that witnesses would also be protected by the ERA whistleblower provision.

[Nuclear & Environmental Digest VII D 4]
RECUSAL; RESPONSIBILITY OF ALJ TO ASK QUESTIONS ABOUT POTENTIAL CONFLICT OF INTEREST ON PART OF COMPLAINANTS' ATTORNEY

In Duncan v. Sacramento Metropolitan Air Quality Management District,1997-CAA-12 (ALJ Oct. 16, 1998)(order denying motion), one of three Complainants filed a motion for mistrial and judicial recusal because at the hearing the ALJ had brought to the attention of the parties three faxes one of the other Complainants had faxed to the ALJ asserting that the attorney who was then representing all three Complainants had neglected the movant's interests in favor of the other two Complainants. This Complainant's faxes also represented that the Complainant (who brought the present motion for mistrial and recusal) had told her that he felt he could get away with lying when testifying.

In regard to pointing out the potential conflict of interest, the ALJ denied the motion, noting that ALJ has an affirmative duty to inquire into an attorney's potential conflict of interests, and to either ensure that there is "informed consent" to such conflicts, if they are found, or, in the absence of such informed consent, disqualify the attorney. See Smiley v. Director, OWCP, 984 F.2d 278, 281-83 (9th Cir. 1993).

In regard to asking questions to the Complainant accused of being able to lie, the ALJ denied the motion noting that ALJs have clear authority to question witnesses, including parties, that he had not asked for any privileged information, and that no attempt was made by Complainant to assert any privilege during the course of the hearing or before the record was closed.

[Nuclear & Environmental Digest VIII B 1 d]
RECONSIDERATION; REQUEST TO REFER MATTER TO SECRETARY OF LABOR

In Smith v. Esicorp, Inc., 1993-ERA-16 (ARB Oct. 1, 1998), Complainant requested that the ARB vacate and reconsider its final decision in the matter, or refer the case to the Secretary for a "policy decision" on the amount of damages. In the Final Decision, the ARB had reduced the ALJ's award of $100,000 in compensatory damages to $20,000.

The ARB denied Complainant's motion, finding that he had not presented any new arguments or reasons to vacate the Final Decision. In addition, the ARB denied Complainant's request that the matter be referred to the Secretary because the Secretary had delegated her decision-making authority in cases arising under the Energy Reorganization Act of 1974 to the ARB. Secretary's Order No. 2-96, paragraph 4.

[Nuclear & Environmental Digest VIII B 3]
INTERLOCUTORY APPEALS DISFAVORED

In Allen v. EG&G Defense Materials, Inc.,1997-SDW-8 and 10 (ARB Sept. 28, 1998), the ARB interpreted Respondent's Notice of Appeal or Request for Review of Order Granting Motion for Default Judgment as a motion for an interlocutory appeal, and denied the motion based on the longstanding rule that such appeals are disfavored. The ALJ had defaulted Respondent for failure to file an answer to the complaint, and provided the parties time to litigate damages.

[Nuclear & Environmental Digest VIII C 2 c]
FINALITY OF ARB DECISION WHERE COLLATERAL ISSUE OF ATTORNEY FEES AND COSTS REMAINS

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), the ARB concluded its decision with a note that because the decision resolved all issues except the collateral issue of attorney fees and costs (upon which the ARB directed the ALJ to issue a supplemental decision), the decision was final and appealable. Citing Fluor Constructors, Inc. v. Reich, 111 F.3d 979 (11th Cir. 1997)(case below 88-ERA-29).

[Nuclear & Environmental Digest IX C]
MOTION TO CONSOLIDATE; SECOND CASE STILL BEFORE OSHA

In Migliore v. Rhode Island Dept. of Environmental Management, 1998-SWD-3 (ALJ Sept. 15, 1998), the ALJ denied Complainant's motion to consolidate the pending matter with a new complaint she had filed with OSHA. The ALJ ruled that OALJ only obtains jurisdiction over a complaint upon appeal by one of the parties from the OSHA determination.

[Nuclear & Environmental Digest IX L]
MOTION IN LIMINE

In Shelton v. Oak Ridge National Laboratory,1995-CAA-19 (ARB Aug. 26, 1998), the ARB denied Complainant's motion in limine seeking an order declaring that certain recent Supreme Court decisions are applicable to this case as well as other whistleblower cases. The ARB noted that Complainant could cite and discuss any applicable authority in her brief on the merits.

To the same effect: High v. Lockheed Martin Energy Systems, Inc., 1996-CAA-8 @ 2 (ARB Sept. 1, 1998)("It would not be appropriate for the Board to issue the advisory opinion that Complainant requests divorced from the facts of a specific case.")

[Nuclear & Environmental Digest IX M 2]
ATTORNEY DISQUALIFICATION; PROPER FORUM FOR APPEAL

In Rockefeller v. U.S. Dept. of Energy, 1998-CAA-10 and 11 (ARB Oct. 14, 1998), the ARB set a briefing schedule for Complainant's petition for review of the ALJ's recommended decision. Complainant's attorney had also petitioned the ARB for review of the ALJ's Order Barring Counsel from Future Appearances. The ARB noted that "[a]ttorneys who are suspended or barred by an ALJ may appeal such action to the Chief Administrative Law Judge. 29 C.F.R. § 18.36(b) (1998)."

[Nuclear & Environmental Digest IX M 2]
ATTORNEY DISQUALIFICATION; CONTEMPTUOUS FILINGS IN PENDING CASE

In Rockefeller v. U.S. Dept. of Energy, 1998-CAA-10 and 11 (ALJ Sept. 28, 1998), the ALJ issued an Order Barring Counsel From Future Appearances based on Complainant's counsel's filing of a document entitled "Objection to ALJ's Conduct of Proceedings and Motion for Leave to File Motion for Judicial Recusal." Following receipt of Complainant's counsel's response to an order to show cause, the ALJ found that the document was contemptuous on its face. The ALJ noted that an attorney making derogatory statements without legal grounds in a motion to disqualify a trial judge constitutes misconduct due to its significant impact on the judicial system. The ALJ noted that he is not invested with contempt power, but that contemptuous conduct nonetheless calls into question the fitness of a lawyer to practice. Because of the lack of contempt power, the ALJ noted, the only available remedy is the disqualification provisions of Part 18.

The ALJ also noted that counsel's conduct was not isolated -- that he had previously filed similar documents before the ALJ previously -- and that another ALJ had also previously barred counsel because of his continuing pattern of wilful misconduct.

The ALJ rejected counsel's claim that his remarks were protected by the First Amendment, noting that abusive remarks critical of the judiciary are not so protected where those remarks are false and prejudicial to the administration of justice. The ALJ also noted that "[a] distinction must be made between out of court criticisms, opinions, and remarks about a judge which may be protected by the First Amendment and in court speech or court documents of the same nature directed to the judge which are contemptuous and constitute improper professional conduct or violate standards of conduct."

[Nuclear & Environmental Digest IX M 2]

RECUSAL; RESPONSIBILITY OF ALJ TO ASK QUESTIONS ABOUT POTENTIAL CONFLICT OF INTEREST ON PART OF COMPLAINANTS' ATTORNEY

In Duncan v. Sacramento Metropolitan Air Quality Management District,1997-CAA-12 (ALJ Oct. 16, 1998)(order denying motion), one of three Complainants filed a motion for mistrial and judicial recusal because at the hearing the ALJ had brought to the attention of the parties three faxes one of the other Complainants had faxed to the ALJ asserting that the attorney who was then representing all three Complainants had neglected the movant's interests in favor of the other two Complainants. This Complainant's faxes also represented that the Complainant (who brought the present motion for mistrial and recusal) had told her that he felt he could get away with lying when testifying.

In regard to pointing out the potential conflict of interest, the ALJ denied the motion, noting that ALJ has an affirmative duty to inquire into an attorney's potential conflict of interests, and to either ensure that there is "informed consent" to such conflicts, if they are found, or, in the absence of such informed consent, disqualify the attorney. See Smiley v. Director, OWCP, 984 F.2d 278, 281-83 (9th Cir. 1993).

In regard to asking questions to the Complainant accused of being able to lie, the ALJ denied the motion noting that ALJs have clear authority to question witnesses, including parties, that he had not asked for any privileged information, and that no attempt was made by Complainant to assert any privilege during the course of the hearing or before the record was closed.

[Nuclear & Environmental Digest IX M 2]
REQUIREMENT THAT LITIGANTS AND ATTORNEYS ACT WITH INTEGRITY AND IN AN ETHICAL MANNER IN DOL PROCEEDINGS

In Espinosa v. Allied Signal, Inc.,1996-WPC-2 (ARB Aug. 18, 1998), the ARB declined to approve a settlement agreement until additional fact finding was done by the ALJ concerning an apparent material misrepresentation made to the DOL by a litigant or an attorney during the processing of Complainant's FWPCA complaint. In the decision, the ARB discussed the power to regulate the conduct of persons appearing before DOL:

   Addressing the need for litigants to act with integrity in matters before the federal courts, the Supreme Court has noted that courts have the inherent power to regulate the conduct of the persons appearing before them. Chambers v. NASCO, Inc., 501 U.S. 32 (1991), reh'g denied 501 U.S. 1269 (1969); Universal Oil Products Co. v. Roof Refining Co., 328 U.S. 575, 580 (1946); see also Shepherd v. American Broadcasting Cos., Inc., 62 F. 3d 1469, 1472-75 (D.C. Cir. 1995). The issue of fraudulent misrepresentations by parties or their counsel is especially troubling, because "tampering with the administration of justice ... involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public." Chambers at 44, quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944).

Espinosa,1996-WPC-2 @ 3-4.

[Nuclear & Environmental Digest X A]
AUTHORITY OF AGENCY TO DETERMINE CONSTITUTIONALITY OF STATUTE

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), Respondent asserted that because Complainant was seeking compensatory and exemplary damages, and seeking to vindicate private rights rather than public rights, Respondent has a Constitutional right under the Seventh Amendment to a jury trial, citing Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) and Feltner v. Columbia Pictures Television, Inc., 118 S.Ct. 1279 (1998). The Board declined to rule on the constitutionality of the subject acts, citing Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994); Califano v. Sanders, 430 U.S. 99, 109 (1977); United States v. Bozarov, 974 F.2d 1037, 1040 (9th Cir. 1992).

[Editor's note: Respondent has apparently taken an appeal of this case to the 10th Circuit.]

[Nuclear & Environmental Digest X E 2]
CREDIBILITY; DEMEANOR

In Jenkins v. U.S. Environmental Protection Agency,1988-SWD-2 (ALJ July 10, 1998), the ALJ noted that Complainant's "credibility is the key issue in this case, both because there is frequent conflict between her version of events and that of other witnesses and because her perception of events is the principal component in her belief that she has been discriminated against for her protected activities." Id. @ 21-22. The ALJ thoroughly analyzed the record and noted his observations about Complainant's demeanor, and found that Complainant was so emotionally involved in the case that her testimony was inherently unreliable, and absent corroborating evidence, insufficient to establish any controverted fact.

[Nuclear & Environmental Digest XI A 2 a]
CAUSAL LINK FOR ADVERSE ACTION; CONSIDERATION OF COMPLAINANT'S PERCEIVED CONFRONTATION STYLE

In Jarvis v. Battelle Pacific NW Laboratory,1997-ERA-15 (ARB Aug. 27, 1998), Complainant had been suspended for one-week following an incident in which he had made what were perceived as abrasive comments to a DOE supervisor in connection with a personnel matter involving Complainant's wife, who worked for DOE. Earlier, Complainant had engaged in protected activities. The ARB, however, concluded that these protected activities were not the cause of his one-week suspension. Rather, the ARB concluded that Complainant was suspended because of the abrasive comments. The ARB found that, although the individuals who made the decision to suspend may have been aware of prior criticism of Complainant in connection with his confrontational manner, some instances of which may have been manifested in connection with his earlier protected activity, the concerns of the committee members who suspended Complainant were unconnected with the substance of any environmental issues that Complainant may have raised. The ARB found that the inter-personal frictions evidenced in these earlier incidents merely provided context to events leading to the suspension. The ARB also found in regard to dual motive analysis, that even if Complainant's earlier protected activity played some part in the decision to suspend him, Respondent had presented clear and convincing evidence that it would have suspended Complainant even in the absence of such protected activity.

[Nuclear & Environmental Digest XI A 2 a]
CAUSAL LINK TO PROTECTED ACTIVITY; LACK OF EVIDENCE THAT SUPERVISOR REACTED NEGATIVELY TO COMPLAINANT'S SAFETY RECOMMENDATION; EXISTENCE OF OTHER REASONS FOR ADVERSE EMPLOYMENT ACTION

In Miller v. Tennessee Valley Authority, 1997-ERA-2 (ARB Sept. 29, 1998), Complainant's security clearance was revoked based on the recommendation of a psychologist who conducted a fitness for duty examination. Earlier, Complainant had engaged in protected activity when she raised concerns about a plan to install a new handprint identification security system. The ARB found, however, that Complainant's supervisor did not dismiss, reject, downplay, or conceal Complainant's opinions about problems with implementation of the new security system, but instead solicited her views for incorporation into his report on the subject, and subsequently met with the Project Manager and others to discuss these concerns (and those of others as well) prior to implementation of the project. Thus, the ARB concluded that the supervisor's actions belied a discriminatory motive. In addition, the ARB noted that there was ample evidence that the supervisor's decision to request a fitness for duty examination was motivated by some troubling statements made by Complainant about workplace violence, and by company policy to refer an employee for a fitness for duty examination when the supervisor questioned the employee's ability to continue to work safely. Finally, the ARB found that the record established that the psychological evaluation and recommended job constraints were entirely bona fide.

[Nuclear & Environmental Digest XI A 2 c]
RESPONDENT'S KNOWLEDGE; ASSERTION THAT RESPONDENT DID NOT KNOW COMPLAINANT WAS RAISING AN ENVIRONMENTAL CONCERN AS A COMPONENT OF THE SAFETY COMPLAINT

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), a case involving the protected activity of the Safety Manager at an incinerator for destroying military chemical agents including nerve gas, Respondent argued that its managers had not perceived Complainant's concerns as relating to the environment, but rather to OSHA workplace safety rules and Army regulations, and therefore Respondent could not be made liable under the environmental whistleblower statutes. The ARB found this argument erroneous both in regard to the law and the facts. The ARB found in one instance that the Army regulation at issue dealt with environmental concerns outside the facility, and therefore the manager had to have known that Complainant's citation of the regulation related to the general environment. In regard to Complainant's concern about a hydrogen leak, the ARB found it "preposterous" to assert that the managers would not comprehend the potential for a release of toxic chemicals into the general environment. Moreover, the ARB held that "legally ... the environmental acts do not require that a complainant articulate each statute or regulation that potentially could be violated because of a defect or safety issue about which he complains." Slip op. at 15.

[Nuclear & Environmental Digest XI A 2 d]
CAUSATION; REQUIREMENT OF DIRECT EVIDENCE SHOWING SPECIFIC LINK BETWEEN IMPROPER MOTIVE AND CHALLENGED EMPLOYMENT DECISION

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), the ARB, once finding that Complainant had engaged in protected activity and that Respondent knew about that protected activity, looked to the question of whether Complainant established by a preponderance of the evidence that his termination from employment was in response to his protected activity. The ARB wrote that "[t]he finding that there is an illegitimate motive requires direct evidence 'showing a specific link between an improper motive and the challenged employment decision.'" Slip op. at 15, quoting Carroll v. USDOL, 78 F.3d 352, 357 (8th Cir. 1996) (case below 1991-ERA-46).

[Nuclear & Environmental Digest XI B 2 b v]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; COMPLAINANT'S ACCESSING E-MAIL OF OTHER WORKERS

In Duncan v. Sacramento Metropolitan Air Quality Management District,1997-CAA-12 (ALJ Oct. 16, 1998), the ALJ found in his recommended decision that a five-day suspension of Complainant was motivated solely by Respondents "legitimate interest in ensuring the confidentiality of ... sensitive personal information in the computerized files of its chief administrative official...." Slip op. at 38. The ALJ found that although the employee whose e-mail files had been accessed had not taken steps to put security on the files, "she nonetheless had a reasonable expectation that the privacy of her e-mail files would be maintained." Slip op. at 37. The ALJ rejected Complainant's argument that the absence of written rules prohibiting employees from accessing other workers' e-mail and the failure of the employee whose e-mail had been accessed to put security on her e- mail files, eliminated any privacy interest in that e-mail. The ALJ concluded that "such an argument is akin to contending that an employee is free to search the desks, briefcases or purses of any co-worker who forgets to lock an office door or desk drawer." Slip op. at 37.

[Nuclear & Environmental Digest XI B 2 b viii]
DUAL MOTIVE ANALYSIS; RESPONDENT'S BURDEN OF PROVING THAT IT WOULD HAVE DISCHARGED COMPLAINANT EVEN IF COMPLAINANT HAD NOT ENGAGED IN PROTECTED ACTIVITY; EMPLOYER MAY ASK QUESTIONS OF EMPLOYEE ABOUT HIS OR HER SAFETY CONCERNS

In Saporito v. Florida Power & Light Co., 1989-ERA-7 and 17 (ARB Aug. 11, 1998), the only issue was whether Respondent proved that it would have discharged Complainant even if he had not insisted on his right to reveal his safety concerns only to the NRC. In an earlier decision, the Secretary of Labor had held that "[a]n employee who refuses to reveal his safety concerns to management and asserts his right to bypass the chain of command' to speak directly with the Nuclear Regulatory Commission is protected [from discrimination under the ERA]." The Secretary had found Respondent violated the ERA when it discharged Complainant for three reasons, one of which was his protected refusal to reveal his safety concerns to managers and his insistence on speaking directly to the NRC.

The ARB agreed with the ALJ's remand determination that Respondent proved that it would have discharged Complainant for his insubordination in refusing to attend a meeting with the Site Vice President and refusing to comply with an order to be examined by the designated company doctor, even if he had not engaged in earlier protected activity.

In regard to Complainant's refusal to meet with the Site Vice President, the ARB found it significant that despite a clear act of insubordination, Respondent took measures that were consistent with discipline meted out to other employees in similar circumstances. The ARB rejected Complainant's argument that by refusing to attend the meeting, he was insisting on his right to reveal safety concerns only to the NRC because (1) at the time, Complainant never stated this as a reason for not attending the meeting, and (2) the mere fact that one of the Vice President's objectives in meeting with Complainant was to ask again about Complainant's safety concerns did not insulate Complainant from all directives given by his employer. The ARB found that the instant scenario was not a situation in which an employee's alleged insubordination was "the result and manifestation of his protected activity." The ARB held, however, that if the Vice President had again asked about Complainant's safety concerns, Complainant then might have been justified in refusing to reveal those concerns. The ARB noted that at the time of the attempted meeting, Complainant had already started to cooperate with Respondent's outside investigators; thus Complainant's refusal was an abrupt change.

Complainant cited NRLA authority for the proposition that the order to attend a meeting tended to coerce Complainant into refraining from exercising his rights under the Act. The ARB found that one of the factors to be considered is whether the employer had a valid purpose in questioning the employee, and that in the instant case, the Vice President clearly had a valid purpose in wanting to question Complainant about his safety concerns: to learn whether any of those concerns had immediate significance for public health and safety. The ARB held that the attempt to question Complainant was not an attempt to coerce Complainant to refrain from contacting the NRC directly about his safety concerns.

In regard to the refusal to be examined by a company doctor, the ARB held that Respondent had legitimate reasons to require Complainant to submit to such an examination: that Complainant had refused to attend a meeting with the Vice President because he claimed to be sick and then took extended sick leave for medical disorders which he asserted were related to stress.

[Nuclear & Environmental Digest XI B 2 c]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; LIMITATIONS ON WORK-TIME ASSOCIATION WITH CO-WORKER

In Duncan v. Sacramento Metropolitan Air Quality Management District,1997-CAA-12 (ALJ Oct. 16, 1998), the ALJ found in his recommended decision that Respondent's directive to Complainant that he was to cease work-time meetings with a co-worker because of that co-worker's poor performance and attendance (the co-worker was also a co-Complainant), was fully justified and not harassment or retaliation. The ALJ found that at the time of the first directive not to associate with the co-worker at work, the only protected activity that could have prompted such a limitation was two years remote in time, that the record was clear that the co-worker's performance and attendance were deficient, that there was little business-related reason for Complainant and the co-worker to spend work time together, that the co-worker's performance and attendance had been deteriorating, and that the co- worker's later termination from employment on this ground had been upheld by an arbitrator.

[Nuclear & Environmental Digest XI E 4]
CREDIBILITY; BELIEF OF EMPLOYER IN REASON CITED

In determining whether an employer's explanation is worthy of credence, the fact finder must determine whether the employer actually believed and relied on the reasons cited -- not whether such bases are factually sound. Jarvis v. Battelle Pacific NW Laboratory,1997-ERA-15 @ n.10 (ARB Aug. 27, 1998).

[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; SYNERGISM BETWEEN REPORTING OF SAFETY CONCERNS AND ENVIRONMENTAL CONCERNS

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), a case involving the protected activity of the Safety Manager at an incinerator for destroying military chemical agents including nerve gas, Respondent argued that Complainant could not prevail because his asserted protected activities concerned worker safety and compliance with Army regulations, but not the CAA, SWDA, TSCA or their implementing regulations. Complainant replied that in view of the hazardous nature of such operations, there is an "'inevitable overlap between safety concerns and environmental concerns'" such that nearly all the Safety Manager's activities would be protected under the environmental statutes. Slip op. at 10, quoting Complainant's Brief. The ARB agreed with the ALJ's finding that "many of [Complainant's] activities and complaints were protected under the environmental statutes because they pertained generally to the risk of an emission of toxic substances from a dangerous instrumentality...." Slip op. at 11.

The ARB noted that Complainant did not rely solely on the general argument that his work activities inherently involved environmental safety concerns, but also on several specific activities. The ARB went on in the decision to consider whether the specific activities constituted protected activity under the various environmental statutes.

One specific activity cited by Complainant was a lab shutdown based on his concerns about, inter alia, venting of agents directly into the atmosphere. The ARB held that such concerns clearly touch on the public's environmental safety, noting that several of the chemicals handled were covered by the TSCA and the RCRA (SWDA). The ARB stated that "[t]he fact that [Complainant] expressed concern about a violation of an Army regulation does not negate the environmental concerns he also expressed .... Where a complainant has a reasonable belief that the respondent is violating the environmental laws, any other motives he or she may have for engaging in protected activity are irrelevant." Slip op. at 12-13 (citation omitted).

The second specific activity cited by Complainant was a concern about a leaking hydrogen cylinder. Respondent contended that such a concern is covered by the OSHA, and therefore not protected under the environmental statutes. The ARB, however, found that Complainant believed the leak could lead to an explosion that would destroy the building, posing a risk of emission of harmful chemicals to the general environment. Thus, the ARB agreed with the ALJ's conclusion that Complainant's decision to summon the fire department about the hydrogen leak was protected activity under the environmental statutes.

Complainant also submitted an internal audit report where he noted a deficiency in the facility's emergency preparedness plan. Since such a plan is required under the RCRA (SWDA), the ARB found that the audit report's submission was a protected activity.

Finally, Complainant had been ordered to incorporate the findings of an independent safety assessment report by MITRE Corporation into the Disposal Facility's safety system plan, and as result Complainant had concluded that certain hazard analyzes were needed (a process that could take six months to complete). The ARB found that Complainant's reporting of the need for the hazard analyzes to his superiors was protected activity because "the analyzes would likely lead to repair or changes in the plant that would diminish the likelihood of a release of toxic chemicals into the atmosphere." Slip op. at 14 (citation omitted). In addition, the ARB found that declination to sign a document indicating that all of the deficiencies identified in a certain part of the MITRE report were "acceptable" was protected activity, because Complainant "in effect was pressing the need to correct deficiencies so as to diminish the likelihood of a catastrophic release of toxic chemicals into the atmosphere." Slip op. at 14 (citation omitted).

[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; NO REQUIREMENT THAT THE STATUS QUO IS IN VIOLATION OF ANY SPECIFIC STANDARD IF EMPLOYEE IS MAKING RECOMMENDATIONS ON HOW TO BEST SERVE NUCLEAR SAFETY

In Jarvis v. Battelle Pacific NW Laboratory,1997-ERA-15 (ARB Aug. 27, 1998), Complainant was given responsibility for developing a new Risk Acceptance Criteria (RAC) for application to a Department of Energy Tank Waste Remediation. The ALJ found that ERA protection of the RAC work was contingent on proof that Complainant reasonably believed that the risk assessment methodology then in use by DOE was in violation of the ERA. The ARB, however, rejected this finding. Rather, the ARB held that "[t]he protection afforded whistleblowers by the ERA extends to employees who, in the course of their work, must make recommendations regarding how best to serve the interest of nuclear safety, even when they do not allege that the status quo is in violation of any specific statutory or regulatory standard." Id. @ 8.

To the same effect: Miller v. Tennessee Valley Authority, 1997-ERA-2 @ 5 (ARB Sept. 29, 1998) (Complainant expressed security concerns about proposed implementation and installation of new security system at nuclear facility).

[Nuclear & Environmental Digest XIII B 17]
ADVERSE EMPLOYMENT ACTION; OFFERS OF WORK DESIGNED TO KEEP COMPLAINANT AWAY FROM WORK THAT WOULD PUT HIM IN POSITION TO REPORT SAFETY VIOLATIONS

In a recommended decision, the ALJ in Tracanna v. Arctic Slope Inspection Service, 1997-WPC-1 (ALJ Sept. 18, 1998), found that Complainant's activities fit the purposes of the whistleblower provisions of the various federal environmental statutes. The ALJ concluded that Respondent's repeatedly offering Complainant positions that were in different areas than his area of expertise as an electrical inspector or merely short-term electrical inspector positions -- along with the fact that such full-time positions were available -- indicated that Respondent purposely kept Complainant away from full-time positions where he could cause trouble. The ALJ also found that Respondent's concerted efforts to offer Complainant employment outside of electrical inspector positions "was an effort, not only to conceal their removing him from such positions, but also to document their offers of 'generosity' so that [Complainant] would not be able to claim retaliation at some later point." Slip op. at 19.

The ALJ also found that Respondent's placing Complainant on indeterminate lay off and continuous offering of inferior positions constituted a constructive discharge.

[Nuclear & Environmental Digest XIV B 2]
JOINT EMPLOYER; INSUFFICIENT TO MERELY STATE THAT A COMPANY BE INVESTIGATED AS A "POSSIBLE JOINT EMPLOYER"; RATHER, MUST ALLEGE AN EMPLOYMENT RELATIONSHIP EXISTED

Where Complainant merely prayed in his complaint that a named co-Respondent, which was not Complainant's employer, be investigated as "possible joint employer", the ALJ granted the co-Respondent's motion for summary decision, noting that Complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief, and that Complainant had not alleged the essential element of an employment relationship between himself and the co-Respondent. Rockefeller v. U.S. Dept. of Energy,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).

[Nuclear & Environmental Digest XIV B 4 e]
FEDERAL AGENCIES AS "PERSONS" SUBJECT TO THE CAA AND THE SWDA

Federal agencies, such as the Department of Defense, are "persons" subject to the requirements of the Clean Air Act, see 42 U.S.C. § 7602(e), and the Solid Waste Disposal Act (aka Resource Conservation and Recovery Act), 42 U.S.C. § 6961. Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998).

[Editor's Note: The complaint in Jones also involved the TSCA, but the ARB did not discuss whether a federal agency would be covered as a "person" under that Act.]

[Nuclear & Environmental Digest XV K]
JUDICIAL NOTICE; HYDROGEN

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3, slip op. at 13 (ARB Sept. 29, 1998), the ARB took judicial notice that hydrogen is a highly flammable gas.

[Nuclear & Environmental Digest XVI B 4]
SINCE REINSTATEMENT IS MANDATORY, DISCUSSION OF FRONT PAY ALTERNATIVE NOT NECESSARY

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), the ALJ had made an alternative finding that in the event Respondent failed to reinstate Complainant, it must pay front pay of $499,469. See Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ALJ Aug. 1, 1997) The ARB, however, held that because its reinstatement order is mandatory, front pay need not be discussed.

[Nuclear & Environmental Digest XVI C 2 a]
BACK PAY; USE OF SIMILAR EMPLOYEE METHOD WHERE FORMULA METHOD WOULD NOT REFLECT INTANGIBLES

In Tracanna v. Arctic Slope Inspection Service, 1997-WPC-1 (ALJ Sept. 18, 1998), Complainant proffered two alternative methods for calculating back pay -- a formula method that made certain assumptions about weeks and hours worked, and a "similarly situated employee" method. The ALJ found in his recommended decision that the similar employee method was better suited in the instant case because the formula method would not take into consideration the possibility of personal time, spontaneous work- load increases or decreases, or the general level of activity for inspectors during the relevant time period. The ALJ agreed with Complainant's choice of a similarly situated employee, whose experiences, qualifications and backgrounds were similar.

[Nuclear & Environmental Digest XVI C 2 c ii]
BACK PAY; SEVERANCE PAY IS DEDUCTED

Back pay awards should be reduced by the amount received by the complainant as severance pay. Jones v. EG & G Defense Materials, Inc.,1995-CAA-3, slip op. at 19 (ARB Sept. 29, 1998).

[Nuclear & Environmental Digest XVI C 2 c v]
MITIGATION; REASONABLE EFFORTS; REASONABLENESS OF SELF- EMPLOYMENT

Victims of employment discrimination have the duty to mitigate damages by seeking suitable employment. Reasonable efforts to find employment include checking want ads, registering with the state employment agency, and using personal contacts. In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), Respondent contended that Complainant failed to mitigate damages when, after too short a job search, he unreasonably chose to gamble on self employment (which resulted in no salary or income for two calendar years -- up to the time of the close of the record before the ALJ). The ARB quoted Smith v. Great American Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992), for the proposition that "self employment can constitute employment for purposes of mitigating damages, as long as the self employment was a reasonable alternative to finding other comparable employment." The ARB indicated that the respondent has the burden of showing that a complainant's self employment was an unreasonable withdrawal from the job market, and found that Respondent had failed to do so on the evidence of record.

[Nuclear & Environmental Digest XVI D 1]
COMPENSATORY DAMAGES; MANDATORY UNDER TSCA; AVAILABLE UNDER CAA AND RCRA (SDWA)

Compensatory damages are mandatory for a successful complaint under the TSCA, 15 U.S.C. 2622(b)(2)(B)(iii) and may be awarded under the CAA, 42 U.S.C. 7622(b)(2)(B) and the RCRA (SDWA), 42 U.S.C. § 6971(b). Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998).

[Nuclear & Environmental Digest XVI D 3 c]
COMPENSATORY DAMAGES; LOSS OF HEALTH BENEFITS

In Tracanna v. Arctic Slope Inspection Service, 1997-WPC-1 (ALJ Sept. 18, 1998), the ALJ awarded Complainant over $38,000 in compensatory damages for costs associated with the treatment of a heart attack where he lost health benefits as a result of his protected activity.

[Nuclear & Environmental Digest XVI D 3 d]
COMPENSATORY DAMAGES; EQUITY LOSSES IN PROPERTY; EVIDENCE OF PROXIMATE CAUSE

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), the ARB declined to award compensatory damages to Complainant for equity losses in rental property where there was evidence that the rental property was not profitable even before Complainant was fired because he was putting a lot of improvements into them, and the timing of the discharge coincided with winter rates. The ARB noted the lack of an essential causal link between the discharge and foreclosure on the properties, but observed that it might have decided differently on different facts.

[Nuclear & Environmental Digest XVI D 3 d]
COMPENSATORY DAMAGES; INJURY TO CREDIT RATING; NO DOUBLE COMPENSATION

Injury to a person's credit standing is a basis for awarding compensatory damages in employment discrimination cases. In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), however, although there was evidence of a significant decline in Complainant's credit rating following his discharge, and testimony about Complainant's lack of success in obtaining loans, since the loans related to Complainant's attempt to engage in self-employment, and the back pay award would compensate him for any loss in salary or profit from the self-employment, the ARB declined to make an additional award for injury to Complainant's credit rating (although it noted that it would take it into consideration in damages for pain and suffering).

[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS; SEVERITY OF RETALIATION

In Smith v. Esicorp, Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ALJ found Complainant to be a very credible witness in describing the impact of Respondent's harassment, and recommended an award of $100,000 in compensatory damages. The ARB faulted the ALJ, however, for not explaining how he arrived at the $100,000 figure, and noted that it is appropriate to consider the range of awards made in similar cases when awarding compensatory damages. The Board, therefore, listed recent Secretary and ARB decisions awarding compensatory damages for emotional distress for instruction:

• Van der Meer v. Western Kentucky University, ARB Case No. 97-078, ALJ Case No. 95-ERA-38, ARB Dec., Apr. 20, 1998. The ARB awarded Van der Meer $40,000 because he suffered public humiliation and the respondent made a statement to a local newspaper questioning Van der Meer's mental competence.

• Gaballa v. The Atlantic Group, Case No. 94-ERA-9, Sec'y Dec., Jan 18, 1996, slip op. at 5. Gaballa had been blacklisted, and testified that he felt his career had been destroyed by the respondent's action. The Secretary reviewed the compensatory damages awards for mental and emotional suffering made in a number of cases, which ranged from $10,000 to $50,000, and awarded Gaballa $35,000.

• Creekmore v. ABB Power Systems Energy Services, Inc., Case No. 93-ERA-24, Dep'y Sec'y Dec., Feb. 14, 1996, slip op. at 25. The Deputy Secretary awarded Creekmore $40,000 for emotional pain and suffering caused by a discriminatory layoff. Creekmore showed that his layoff caused emotional turmoil and disruption of his family because he had to accept temporary work away from home and suffered the humiliation of having to explain why he had been laid off after 27 years with one company.

• Michaud v. BSP Transport, Inc., ARB Case No. 97-113, ALJ Case No. 95-STA-29, ARB Dec. Oct. 9, 1997, slip op. at 9. The ARB awarded $75,000 in compensatory damages where evidence of major depression caused by a discriminatory discharge was supported by reports by a licensed clinical social worker and a psychiatrist. Evidence also showed foreclosure on Michaud's home and loss of savings.

• Smith v. Littenberg, Case No. 92-ERA-52, Sec'y Dec., Sept. 6, 1995, slip op. at 7. The Secretary affirmed the ALJ's recommendation of award of $10,000 for mental and emotional stress caused by discriminatory discharge where Smith supported his claim with evidence from a psychiatrist that he was "depressed, obsessing, ruminating and ha[d] post-traumatic problems."

• Blackburn v. Metric Constructors, Inc., Case No.1986-ERA-4, Sec'y Dec. after Remand, Aug. 16, 1993, slip op. at 5. The Secretary awarded Blackburn $5,000 for mental pain and suffering caused by discriminatory discharge where Blackburn became moody and depressed and became short tempered with his wife and children.

• Bigham v. Guaranteed Overnight Delivery, Case No. 95-STA-37, ARB Case No. 96-108, ARB Dec., Sept. 5, 1997, slip op. at 3. The ARB awarded Bigham $20,000 for mental anguish resulting from discriminatory layoff.

• Lederhaus v. Paschen, Case No. 91-ERA-13, Sec'y Dec., Oct. 26, 1992, slip op. at 10. The Secretary awarded Lederhaus $10,000 for mental distress caused by discriminatory discharge where Lederhaus showed he was unemployed for five and one half months; foreclosure proceedings were initiated on his house; bill collectors harassed him and called his wife at her job, and her employer threatened to lay her off; and his family life was disrupted.

The ARB noted that a complainant must prove the existence and magnitude of subjective injuries with competent evidence. In addition, the ARB held that "[t]he severity of the retaliation suffered by [Complainant] is also relevant to our determination of appropriate compensatory damages. The courts have held that the more inherently humiliating and degrading the defendant's action, the more reasonable it is to infer that a person would suffer emotional distress, and the more conclusory the evidence of emotional distress may be." Smith,1993-ERA-16 @ 4.

Based on these principles and comparisons, the ARB reduced the compensatory damages award to $20,000 for mental pain and suffering, finding that Respondent's conduct was limited to several cartoons lampooning Complainant for his protected activities, that Complainant did not suffer loss of a job or blacklisting and did not incur financial losses, and that Complainant's evidence of mental and emotional injury was limited to his own testimony and that of his wife.

[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; PAIN AND SUFFERING; COMPARATIVE AWARDS

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), the ARB adopted the ALJ's recommendation of a $50,000 award of compensatory damages for pain and suffering where Complainant testified concerning his embarrassment about seeking a new job, his emotional turmoil, his panicked response to being unable to pay his debts, his embarrassment as neighbors witnessed the repossession of his car from his home and customers witnessed the repossession of his truck from his appliance repair shop. Additional considerations included loss of medical coverage which resulted in putting off a planned operation for Complainant's wife to restore lost hearing in one ear, Complainant's inability to provide continuing financial support to two stepdaughters who were attending college, and evidence of injury to Complainant's credit rating. Respondent had attacked the ALJ's award based on the lack of proof of the magnitude of the loss, but the ARB noted that corroborating testimony of a health professional or family members -- although a means of strengthening a case for compensatory damages -- is not required. The ARB also noted that the award was comparable to other such awards in similar cases.

[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; LODESTAR METHOD REASONABLE HOURLY RATE

In Smith v. Esicorp, Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ARB did not disturb the ALJ's reduction of the hourly rate requested by Complainant's attorney of $250 an hour to $150 an hour, based on affidavits submitted by Respondent from two experienced Houston area attorneys attesting that the customary hourly rate in that area for an attorney with 25 years' experience is $185, and that a reasonable rate for an attorney with only ten years experience would range from $125 to $150 per hour. Complainant also submitted an affidavit by a local attorney supporting his claim for $250 an hour, but the ALJ found the affidavits submitted by Respondent to be more credible.

[Nuclear & Environmental Digest XVI E 3 d ii]
ATTORNEY'S FEES; REDUCTION FOR WORK ON POLICY ARGUMENTS AND PERIPHERAL AND IRRELEVANT ISSUES

In Smith v. Esicorp, Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ALJ reduced the number of hours claimed by Complainant's attorney fee application by 15% because they represented work on "policy arguments and peripheral and irrelevant issues," such as discussing Complainant's entitlement to back pay after the Secretary found that Smith's termination was not a violation of the ERA. The ALJ also found that Complainant's briefs were repetitive, and that Complainant Smith spent unnecessary and wasteful time on an attempt to add a party. The ARB found that the adjustment was reasonable.

[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY'S FEES; REDUCTION FOR MONIES EARLIER PAID FOR ATTORNEY'S FEES IN A SETTLEMENT AGREEMENT THAT WAS LATER REJECTED

In Macktal v. Brown & Root, Inc.,1986-ERA-23 (ARB Oct. 16, 1998), a settlement agreement had been rejected by the Secretary. The Secretary declined to order Complainant to return the monies that had been paid under that settlement agreement, holding that he had no authority under the ERA to order restitution of the money.

After significant additional litigation, the case was remanded to the ALJ for calculation of attorney fees. The ALJ recommended crediting Respondent with $20,000 in attorneys fees already paid to Complainant under the earlier, rejected settlement agreement. Before the ARB, Complainant argued that the same logic used by the Secretary in declining to require restitution by Complainant should apply to any offset of the attorney fee award. The ARB found the two situations distinguishable: "It is true that there is no authority in the ERA to order repayment of money paid under a settlement agreement later found illegal. ... However, we think it would be an abuse of our authority under the ERA to award attorney's fees if we were to award, in effect, a windfall double payment of attorney's fees to [Complainant] by failing to credit [Respondent] with the amount already paid." Id. @ 2 (citation omitted).

[Nuclear & Environmental Digest XVI F]
EXEMPLARY DAMAGES; COMPENSATORY DAMAGES CANNOT BE USED AS EXEMPLARY OR PUNITIVE

In Smith v. Esicorp, Inc.,1993-ERA-16 (ARB Aug. 27, 1998), Complainant urged an award of $3,500,000 in "compensatory" damages, arguing that nuclear workers will fear to speak out about pollution problems if Respondent was ordered to pay only "small damages." Complainant suggested employers "unwhipped by justice" may again violate the employee protection provisions of the ERA. The ARB noted that this argument implicitly suggests that the ARB should make large compensatory damage awards in order to "send a message" to the employer community. The ARB held that Complainant's position confuses compensatory damage awards with exemplary (or punitive) damage awards, which the ARB is not award under the ERA.

[Nuclear & Environmental Digest XVI F]
EXEMPLARY DAMAGES; REQUISITE STATE OF MIND; DISCRETIONARY NATURE OF AWARD

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), Complainant sought $150,000 in exemplary damages; the ALJ awarded . The ARB found that no exemplary damage award was warranted, because mere indifference to the purposes of the environmental acts is not sufficient to constitute the requisite state of mind for an award of exemplary damages. See Johnson v. Old Dominion Security,1986-CAA-3, 4 and 5 (Sec'y May 29, 1991); Restatement (Second) of Torts 908 (1979). The Board observed in a footnote that where the requisite state of mind (intent and resolve actually to take action to effect harm) exists, the decision whether to award punitive damages still involves a discretionary moral judgment, and that "[i]f the purposes of the statute can be served without resort to punitive measures, the Board does not award exemplary damages." Slip op. at 24-25 n.20.

[Nuclear & Environmental Digest XVI G 2 a]
INJUNCTIVE RELIEF; POSTING OF DECISION; REMEDY IF POSTING NO LONGER POSSIBLE

In Smith v. Esicorp, Inc.,1993-ERA-16 (ARB Aug. 27, 1998), Respondent was ordered to post, for a period of 90 days, the ARB's decision, and an earlier Secretary of Labor remand decision, in a lunchroom and another prominent place, accessible to employees at the nuclear facility where Complainant was subjected to harassment. Respondent represented that it is no longer in business, has no presence at the nuclear plant and would have no way of assuring that the order for posting the decision can be carried out. Complainant moved to add Raytheon Corporation as a party respondent, asserting that Raytheon succeeded to all of Respondent's property and personnel at the plant. Complainant only sought to add Raytheon as a party for purposes of affirmative and injunctive relief.

The ARB concluded that it would not serve any useful purpose to reopen the record and take evidence on whether Raytheon meets the tests for successorship liability, only to assure that the posting relief is carried out. The ARB stated that "[t]he purpose of posting is to provide notice that whistleblowers will be protected if they are discriminated against. If [Respondent] is unable to secure posting . . . at the . . . nuclear plant, notification may be accomplished by publishing the two documents in a local general circulation newspaper. Such an order brings this longstanding matter to a close and provides [Complainant] more timely relief.

[Editor's note: The case had been before either the OALJ or ARB since 1994]

[Nuclear & Environmental Digest XVII B 2 a]
SETTLEMENT; COMPLAINT ABOUT TAX TREATMENT

In Trice v. Bartlett Nuclear, Inc., 1997-ERA-40 (ARB Aug. 28, 1998), the ARB while considering an ALJ's recommendation of approval of a settlement agreement executed by Complainant and Respondent, received a letter from Complainant alleging that Respondents incorrectly designated the settlement payment on Complainant's IRS 1099-MISC form as income generated through self-employment. Complainant believed that this will affect his tax liability, and that the ARB should therefore "consider [his] total expenses" in its determination. The ARB ruled that it would not amend the settlement amount or disapprove the agreement based on this collateral issue, citing authority to the effect that where a settlement is knowing and voluntary, the settlement is binding, final and conclusive even though a party may later believe that the agreement is disadvantageous or otherwise changes his or her mind.

[Nuclear & Environmental Digest XVII G 9]
SETTLEMENT; ARB WILL NOT APPROVE WHERE IT APPEARS THAT A FRAUD ON THE TRIBUNAL MAY HAVE BEEN COMMITTED IN REGARD TO A SETTLEMENT AGREEMENT

In Espinosa v. Allied Signal, Inc.,1996-WPC-2 (ARB Aug. 18, 1998), the parties entered into a settlement agreement, in which a relatively small value assigned to a federal whistleblower complaint was presumably based on the apparent merits of Respondent's contention that the complaint was not timely filed (the settlement also included a much larger amount purportedly in settlement of other kinds of state and federal discrimination complaints). The ALJ received an allegation from Respondent and Complainant's second attorney that documents submitted to the ALJ relevant to the timeliness issue by Complainant's first attorneys were "bogus." The ALJ issued a recommended decision and order approving the settlement. While the recommended decision was pending approval by the ARB, the ARB received a motion from Complainant's first attorneys opposing approval of the settlement, asserting that they had not submitted fraudulent documents, and that Complainant had acknowledged under oath in a collateral state proceeding regarding attorneys fees, that a disputed signature on a document was hers.

The ARB concluded that at least one of the litigants or their counsel had made material misrepresentations to the Department with regard to Complainants whistleblower claims under the environmental statutes. Stressing the need for litigants to act with integrity before the Department's adjudicators, the ARB held that it would not approve a settlement under this cloud. Rather, it remanded the case to the ALJ for reconsideration and the taking of any additional evidence deemed necessary to reevaluate the proposed settlement.

[Nuclear & Environmental Digest XVIII A 4 e]
WITHDRAWAL OF CERCLA WHISTLEBLOWER COMPLAINT; DISMISSAL IS NOT WITH PREJUDICE UNLESS SO REQUESTED

In Anderson v. DeKalb Plating Co., Inc.,1997-CER-1 (ARB July 28, 1998), Complainant filed a request to withdraw the complaint. The ALJ properly recommended dismissal under Rule 41 of the Federal Rules of Civil procedure, but erred in recommending dismissal with prejudice in the absence of a request for dismissal with prejudice. The ARB instead ordered dismissal without prejudice.

[Nuclear & Environmental Digest XVIII A 8]
WITHDRAWAL; COMPLAINANT'S DECISION NOT TO PROCEED WITHOUT COUNSEL AND TO PURSUE OTHER FORUMS

In Gattie v. United States Environmental Protection Agency, 1998- CAA-8 (ALJ Sept. 14, 1998), Complainant asked to withdraw his complaint with prejudice, citing as reasons that he could not immediately obtain counsel, and a preference to testify before a congressional subcommittee rather than pursue a remedy before DOL. The ALJ recommended dismissal with prejudice only after informing Complainant that he could proceed without counsel, and informing Complainant that he could accept an extension of time to reply to discovery so that he would have more time to obtain counsel. Complainant, however, still chose to withdraw his complaint.

[Nuclear & Environmental Digest XX B 7]
ALLEGED FAILURE TO FOLLOW NRC REGULATIONS FOR DENIAL OF SECURITY CLEARANCE

In Miller v. Tennessee Valley Authority, 1997-ERA-2 (ARB Sept. 29, 1998), Complainant contended that Respondent violated an NRC regulation, 10 C.F.R. §73.56(b)(3), by not considering all information about her in revoking her security clearance. The ARB, however, found that Respondent's compliance with this NRC regulation for denial of her security clearance is beyond the scope of the ARB's subject matter jurisdiction. The ARB held that its jurisdiction is limited to determining whether Complainant's discharge was based on her protected activities, not whether her discharge was unreasonable or erroneous for other reasons.

[STAA Digest II B 4]
JURISDICTION; COMPLAINT ABOUT SAFETY ISSUE NOT RAISING MOTOR VEHICLE SAFETY

In Greenhorn v. Arrow Stage Lines,1997-STA-18 (ALJ Apr. 23, 1998), the ALJ concluded that Complainant's complaint to OSHA about an uncovered oil pit in the floor of Respondent's maintenance area does not qualify as a protected activity under the STAA, as it did not arise under a motor vehicle safety regulation. On review by the ARB, Greenhorn v. Arrow Stage Lines,1997-STA-18 (ARB Aug. 20, 1998), Complainant argued that the ALJ erred in not accepting the Secretary's preliminary finding of jurisdiction over the oil pit complaint. The ARB noted that the ALJ conducts a de novo hearing and that the preliminary findings are not accorded any weight. The ARB agreed with the ALJ that the report of an uncovered oil pit is not a STAA violation, even if it may be actionable under other statutes.

[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE; ALJ'S FINDINGS OF FACT CONCLUSIVE IF SUPPORTED BY SUBSTANTIAL EVIDENCE

In United Parcel Service, Inc. v. Administrative Review Board, 1998 WL 739812 (6th Cir. Oct. 6, 1998)(unpublished)(case below 1994-STA-16), the Sixth Circuit found that although a Department of Labor regulation (29 C.F.R. § 1978.109(c)(3)) required the Secretary to accept the ALJ's factual findings as conclusive if supported by substantial evidence, Secretary Reich simply ignored the ALJ's key findings. The Sixth Circuit examined the record and pointed out a number of critical findings of the ALJ, supported by substantial evidence, that had been ignored by the Secretary, such as his finding that Complainant was not a credible witness, Respondent's witnesses were credible, Complainant's behavior was subject to discharge without prior notice, and most importantly, Complainant failed to establish that his discharge was for any reason other than his own dishonesty.

[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE; ALJ'S FINDINGS OF FACT CONCLUSIVE IF SUPPORTED BY SUBSTANTIAL EVIDENCE

In BSP Trans, Inc. v. USDOL, 1998 WL 754697 (1st Cir. Nov. 3, 1998)(case below 1995-STA-29), the First Circuit found, after reviewing the record in its entirety, that the ALJ 's finding that there was no connection between Complainant's alleged complaints about violations of the DOT regulations and his termination from employment, was supported by substantial evidence and was therefore conclusive. Thus, the court set aside the ARB's decision that had made "corrected" findings. The court in particular noted that the ALJ had found that not a single witness had corroborated Complainant's testimony, while three of Respondent's witnesses each testified that DOT regulations never came up in their conversations with Complainant. The court noted that, while a reasonable mind could have believed Complainant but not the other witnesses, the ALJ had the advantage of seeing and hearing the witnesses. The court noted that the ARB drew a contrary inference from one factor about the case, but found that the possible inference was "scarcely so apparent as to permit the Board to reject, on a cold record and its own speculation, the ALJ's credibility determinations."

[STAA Digest III G]
CREDIBILITY; USE OF SATELLITE TRACKING DEVICE TO IMPEACH COMPLAINANT'S TESTIMONY

In Demma v. Landstar Ranger & Scheel Enterprises, Ltd., 1998-STA-22 (ALJ July 17, 1998), witness credibility was a crucial factor in the ALJ's recommendation. The ALJ was required to carefully review testimony and documentary evidence in the record to resolve conflicts in the testimony. In particular, the ALJ was required to examine data relating to a satellite communications and tracking device installed on Complainant's truck, and Complainant's driver's log, which were proffered to impeach Complainant's testimony about when he was or was not driving.

[STAA Digest IV A 2 d]
PROTECTED ACTIVITY; GATHERING OF EVIDENCE; RESPONDENT'S KNOWLEDGE OF REASON

In BSP Trans, Inc. v. USDOL, 1998 WL 754697 (1st Cir. Nov. 3, 1998)(case below 1995-STA-29), the First Circuit recognized that "the STAA protects some acts of evidence-gathering to be used to support a protected complaint...." The court, however, indicated that the ARB erred in finding that the mere copying of time cards and manifests by Complainant was protected activity under the STAA because the ALJ had made a conclusive factual finding that Complainant never actually complained to his supervisors about DOT hours of service violations. Thus, Complainant's supervisors would have had little reason to think that Complainant's copying of time cards and manifests was an attempt to document violations. Rather, the testimony indicated that the supervisors thought Complainant was copying information that was potentially valuable to competitors. The court held that "in the absence of [Complainant's] actual complaint to management, he cannot invoke the protections of the STAA based merely on his copying of company papers for the undisclosed purpose of documenting the company's perceived regulatory violations."

[STAA Digest IV D 3]
DUAL MOTIVE; EMPLOYER CHECKED ON COMPLIANCE WITH SETTLEMENT AGREEMENT ONLY AFTER COMPLAINANT LODGED ADDITIONAL SAFETY COMPLAINTS

In Madonia v. Dominick's Finer Foods, Inc., 1998-STA-2 (ALJ Oct. 5, 1998), Complainant was discharged after an altercation with another employee. Complainant was reinstated after signing a settlement agreement that provided that he would be immediately discharged if he failed to complete a psychotherapy program required by the settlement or if he assaulted or battered anyone while on duty. Complainant was later discharged for failure to complete the psychotherapy program. The ALJ found that Complainant's safety complaints prompted Respondents to check on his compliance with the settlement agreement; that although the non-compliance was a legitimate reason for the discharge, it also provided an excuse to fire Complainant for making safety complaints. The ALJ found under dual motive analysis that Respondents failed to establish that they would have fired Complainant in the absence of his protected activity.

[STAA Digest VII B 3]
JOINT EMPLOYER; INSUFFICIENT TO MERELY STATE THAT A COMPANY BE INVESTIGATED AS A "POSSIBLE JOINT EMPLOYER"; RATHER, MUST ALLEGE AN EMPLOYMENT RELATIONSHIP EXISTED

Where Complainant merely prayed in his complaint that a named co-Respondent, which was not Complainant's employer, be investigated as "possible joint employer", the ALJ granted the co-Respondent's motion for summary decision, noting that Complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief, and that Complainant had not alleged the essential element of an employment relationship between himself and the co-Respondent. Rockefeller v. U.S. Dept. of Energy,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).

[STAA Digest VII B 5 c]
EMPLOYER; DOES NOT APPLY TO UNITED STATES, A STATE , OR A POLITICAL SUBDIVISION OF A STATE

Where Complainant was an employee of the U.S. Department of Energy, the ALJ, in a recommended decision on summary judgment, found that Complainant could not invoke the whistleblower provision of the STAA because of the statutory exclusion of the United States from the definition of an "employer" under that Act. Rockefeller v. U.S. Dept. of Energy, 1998-CAA-10 and 11 (ALJ Sept. 28, 1998), citing 49 U.S.C. § 31101(3)(A)(B), and Killcrease v. S&S Sand and Gravel, Inc.,1992-STA-30 @ 2 n.1 (Sec'y, Feb. 2, 1993). The ALJ rejected Complainant's citation to Flor v. U.S. Dept. of Energy, 1993-TSC-1 (Sec'y Dec. 9, 1994) (Complainant in Flor included a STAA complaint; Secretary found that Complainant had filed a timely STAA complaint), on the ground that the issue of the statutory exemption of the United States was not addressed in that decision.

[STAA Digest X]
SETTLEMENT; CONTINUED EFFECTIVENESS OF ALJ'S RECOMMENDED DECISION

In Bettner v. Daymark Foods, Inc.,1997-STA-23 (ARB Aug. 10, 1998), the parties reached a settlement agreement after the ALJ had issued a recommended decision and forwarded the case to the ARB. The ARB, in reviewing the settlement agreement noted an apparent conflict or ambiguity between two paragraphs of the Agreement: one paragraph provided that the ALJ's Recommended Decision and Supplemental Recommended Decision shall become final; another paragraph provided that the parties have settled the damage and attorney fee portion of the Complainant's claims "notwithstanding the Recommended Decisions and Orders."

The ARB found that the "notwithstanding" Paragraph is controlling. In a footnote, the ARB held that its instant "Final Order Approving Settlement and Dismissing Complaint" superseded the Recommended Decision and Supplemental Recommended Decision in any event.

[STAA Digest X A 3]
SETTLEMENT; APPROPRIATE BODY TO REVIEW

Where the parties reached a settlement agreement after the ALJ had issued a recommended decision and forwarded the case to the ARB, the ARB is the appropriate body to review the agreement. See 29 C.F.R. § 1978.111(2). Bettner v. Daymark Foods, Inc.,1997-STA-23 (ARB Aug. 10, 1998).