ARB CASE NO. 99-071
ALJ CASE NO. 99-ERA-11
DATE: May 30, 2003
JOAN L. PASTOR,
COMPLAINANT,
v.
DEPARTMENT OF VETERANS AFFAIRS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Gloria M. Gilman, Esq., Philadelphia, Pennsylvania
For the Respondent:
Joseph H. Lopez, Regional Counsel; Christopher J. Perillo, Esq., United States Department of Veterans Affairs, Philadelphia, Pennsylvania
For Amicus Curiae:
Howard M. Radzely, Acting Solicitor of Labor, Steven J. Mandel, Associate Solicitor, William J. Stone, Senior Attorney, United States Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
The question presented is whether Congress has waived the Federal Government's sovereign immunity against a claim for monetary damages under § 5851(b) of the Energy Reorganization Act (ERA), 42 U.S.C.A. § 5851(b) (West 1995). Section 5851 is the "whistleblower protection" provision of the ERA.
Complainant, Joan Pastor, petitioned this Board to review an Administrative Law Judge (ALJ) Recommended Decision and Order dismissing her ERA complaint against her former employer, the Department of Veterans Affairs (DVA). The ALJ recommended that Pastor's complaint be dismissed for untimely filing. Pastor v. Veterans Affairs Medical Center, 1999-ERA-00011 (ALJ Apr. 28, 1999) (R. D. & O). We conclude that we lack jurisdiction over Pastor's complaint because her claim for monetary damages is barred by sovereign immunity.
BACKGROUND
I. Pastor's successful complaint under the Civil Service Reform Act
On April 30, 1998, the Philadelphia Veterans Affairs Medical Center (PVAMC) notified Joan Pastor that she was being terminated as a research nurse effective May 15, 1998. PVAMC cited lack of funding as the reason for the termination.
On June 22, 1998, Pastor invoked her right to challenge PVAMC's decision under the Whistleblower Protection Act, part of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C.A. §§ 1221(a), 2302(b)(8) (West 1996). Pastor v. Dep't of Veterans Affairs, MSPB Docket No. PH-1221-99-0089. CSRA § 2302(b)(8) prohibits federal agencies from retaliating against employees who report conditions they reasonably believe constitute violations of law or hazards to public health or safety.1[Page 2]
§ 2302. Prohibited personnel practices (a)(1) For the purpose of this title, "prohibited personnel practice" means any action described in subsection (b) of this section.
* * *
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee . . . because of
(A) Any disclosure of information by an employee . . . which the employee . . . reasonably believes evidences
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . . . .
5 U.S.C.A. § 2302(b)(8).
2 On July 10, 2002, Pastor petitioned for MSPB review of the latest of several MSPB ALJ remedies orders. This petition is still pending.
3 Section 5851(b)(1) requires that employees file their complaints within 180 days of the violation. 42 U.S.C.A. § 5851(b)(1). Pastor filed her ERA complaint more than 250 days after she received her termination notice.
4 Pastor sent a letter on that date to the United States Office of Special Counsel formally charging that PVAMC terminated her employment in retaliation for her disclosures of violations of rules and regulations of the Nuclear Regulatory Commission (NRC). This letter lays the foundation for a proceeding before the MSPB. Government Exhibit 2 (GX2) D. & O., slip op. at 3 n.8. The ALJ also noted that even at that time Complainant's filing would not have been timely. Id. at n.10.
5 Nonetheless, exceptions to waivers of sovereign immunity may be narrowly construed where that is "consistent with Congress' clear intent, as in the context of the ‘sweeping language' of the Federal Tort Claims Act." Nordic Village, 503 U.S. at 33, 112 S. Ct. at 1014 (quoting United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S. Ct. 399, 402 (1951)).
6Gibson was a 5-4 decision. The Court majority opinion suggested that since the 1991 amendments clearly permitted an employee to file a complaint for compensatory damages in court, the issue of whether those amendments permitted the EEOC to consider the same matter at an earlier phase was a question of how the waived damages remedy was to be administered, and therefore ordinary sovereign immunity presumptions might not apply. However, it also stated that if a strict standard had to be met, it had been in that case, because the statutory language, taken together with the statutory purposes, history, and absence of any convincing reason for denying the EEOC the relevant power, produced evidence of a waiver satisfying the stricter standard. Gibson, 527 U.S. at 221, 119 S. Ct. at 1911. The minority in contrast found no clear and unambiguous waiver of sovereign immunity. According to the minority, the statutory language pertaining to "appropriate remedies" could be interpreted as granting "administrative authority to determine which of the traditional forms of equitable relief are appropriate in any given case of discrimination" and therefore "does not authorize awards of compensatory damages in express and unequivocal terms." The 1991 amendments authorized courts to award damages, but did not "mention the EEOC, much less empower it to award or authorize money damages. It is settled law that a waiver of sovereign immunity in one forum does not effect a waiver in other forums." Gibson, 527 U.S. at 224, 119 S. Ct. at 1914.
8 ERDA later became a part of the Department of Energy.
9 Section 2031, which provided for establishment of the AEC, its composition, Chairman, acting Chairman, quorum, official spokesman, and seal, and Section 2032, which provided for appointment of AEC members, terms of office, and prohibitions on engaging in non-Commission employment, were repealed effective 120 days after October 11, 1974, or on such earlier date as the President may prescribe and publish in the Federal Register. Pub. L. 93-438 § 312(a), 88 Stat. 1234.
10 The recommended decision of the ALJ becomes the final order of the Secretary if it is not appealed.
11 Compare 42 U.S.C.A. § 2114 (civil money penalties for actions relating to disposal of ore extraction) which excepts from its definition of person the United States or any officer or employee of the United States.
12 OSHA cites remarks made by Senator Hart ("[DOL's] authority to investigate an alleged act of discrimination . . . and afford a remedy . . . is [not intended to] abridge the [NRC's] current authority to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license suspension or license revocation."). 124 CONG. REC. S29,771 (Oct. 14, 1978). Also cited to show the expanded coverage provided by the 1992 Amendments are remarks by Rep. Wyman ("These provisions lock into federal law strong protections for workers. . . . [P]rivate contractor employees will have the right to the same kind of grievance procedures and remedies now enjoyed by most public employees that disclose wrongdoing and face retaliation.") 138 CONG. REC. H11374-03, H11376 (Oct. 5, 1992); Rep. Sharp ("The legislation also increases protection of . . . employees of civilian and military nuclear facilities who report safety violations") 138 CONG. REC. H11399-01 (Oct. 5, 1992); and Rep. Miller ("[This Act strengthens] the protection of whistleblowers in the nuclear power industry and extends such protection to workers in the DOE weapons complex") 138 CONG. REC. H113990-01 (Oct. 5, 1992). OSHA Br. at 7 n.10.
13 Subsection 5851(a) (Discrimination against employee) prohibits an "employer" from discriminating against any employee who engages in certain whistleblowing activities. Subsection 5851(g) (Deliberate Violations) states that subsection (a) (the prohibition against "employer" discrimination) shall not apply with respect to any employee who, "acting without direction from his or her employer(or the "employer's agent") deliberately causes a violation of chapter 73 of the AEA of 1954; and § 5851(h) (Nonpreemption) provides that § 5851 may not be construed to affect any right otherwise available to an employee to redress discriminatory action taken by the "employer" against the employee. Additionally, §§ 5851(b)(3)(B) and (b)(3)(D) prohibit investigation or ordering of relief if the "employer" demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee's whistleblowing activities. In all of these instances it is an "employer" who acts or is prohibited from acting.
14 Throughout subsection (b) (Complaint, filing and notification), the term "person" rather than "employer" is used to refer to the alleged discriminator, except for §§ 5851(b)(3)(B) and (b)(3)(D) which prohibit investigation or ordering of relief if the "employer" demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee's whistleblowing activities.
15 Subsections 5851(f), (i) and (j) do not refer to either "employer" or "person." Interestingly, § 5851(f) (Enforcement) provides that any nondiscretionary duty imposed by § 5851 shall be enforceable in a mandamus proceeding brought under § 1361 of Title 28.
16 As previously noted, § 5851(a)(2)(A) includes within the term "employer" a licensee of the NRC or of an agreement State under section 274 of the AEA of 1954. Subsection 5851(a)(2)(B) also includes an applicant for such a license within the term.
17 Congress incorporated references to duty, obligation, power, authority, responsibility, right, privilege, and activity, or the plural thereof by deeming them included in any Chapter 73 reference to "function" or "functions," and included the exercise of power, authority, rights and privilege when there is any reference to "perform" or "performance." See 42 U.S.C.A. § 5874. Congress also provided that references in any other law to a department or agency whose functions were transferred by Chapter 73 should be deemed to refer to the office or official in which Chapter 73 vested the function. 42 U.S.C.A. § 5871(h).
18 OSHA highlights the fact that VA facilities have been continuously licensed since at least 1958. It uses this fact as support for its argument that the statutory language pertaining to the NRC's licensing authority includes licensing of VA facilities and thereby makes VA facilities subject to the ERA's whistleblower provisions.