1On April, 17. 1996, Secretary's Order
2-96 was signed delegating jurisdiction to issue final agency decisions under the environmental
and
nuclear whistleblower statutes and the regulations at 29 C.F.R. Part 24, to the newly created
Administrative Review Board. 61 Fed. Reg. 19978 (May 3, 1996)(copy attached).
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order. and
regulations under which the Board now issues final agency decisions. A copy of the final
procedural revisions to the regulations (61 Fed. Reg. 19982), implementing this reorganization
is also attached.
2The ALJ recommended dismissal of
Saporito's complaints. However, the Secretary disagreed and remanded the case for further
proceedings. Saporito v. Florida Power & Light Co., Case Nos. 89-ERA-7,
89-ERA-17, Sec. Dec. and Ord. of Remand, June 3, 1994. See also Saporito v. FloridaPower & Light Co., Case Nos. 89-ERA-7, 89-ERA- 17, Sec. Ord.. February 16,
1995 (denying Florida Power's motion for reconsideration).
3In that case the ALJ recommended
dismissal of the complaints and the Secretary concurred. Saporito v. Florida Power &
Light Co., and ATI, Case Nos. 90-ERA-0027, 90-ERA-0047, Sec. Final Dec. and Ord.,
August 8, 1994.
4The ALJ ultimately recommended
approval of settlement agreements and dismissal of these complaints. The Secretary concurred.
Saporito v. Arizona Public Service Co. and the Atlantic Group, Case Nos. 92-ERA-30,
93-ERA-26, 93-ERA-45, 94-ERA-29.1 Sec. Ord. Approving Settlements and Dismissing Cases,
June 19, 1995, and Erratum, June 26, 1995.
5The ALJ recommended dismissal of the
complaint in that case, and the Secretary concurred. Saporito v. Florida Power & Light
Co., Case No. 93-ERA-0023, Sec. Final Dec. and Ord., Sept. 7, 1995.
6Thus, we need not address the ALJ's
conclusion that Florida Power's submission to the NRC is privileged under the First Amendment
right to petition the government. R. D. and O. at 12-13. See HAVOCO of America v.
Hollobow, 702 F.2d 643 (7th Cir. 1983).
7Section 211 of the ERA defines
"employer" to include:
(A) a licensee of the [NRC] or of an agreement State . . . ., (B) an applicant for a license
from the [NRC] or such an agreement State; (c) a contractor or subcontractor of such a
licensee or applicant: and (B) a contractor or subcontractor of the Department of Energy .
. . .
42 U.S.C. § 5851(a)(2) (1988 and Supp. V). Saporito made no attempt to address this
issue. Instead he argued without support or explanation that. "[t]he issue of whether the Firm is
an employer under the ERA is not before the [Secretary of Labor] and need not be addressed
here." Complainant's Rebuttal Brief at 2. We do not agree with this assertion.
8Respondents went so far as to state that
"Complainant apparently concedes" that the
Bramnick-Kennedy conversation took place after Arizona Power took adverse action against
Saporito. Id. at 28.