Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
CASE NO.: 2002-CAA-0005 Issue date: 07Feb2002
IN THE MATTER OF:
Tod N. Rockefeller Complainant,
v.
United States Department of Energy Respondents
Order Of Remand
Tod N. Rockefeller (herein "Rockefeller"), the Complainant, filed a whistleblower complaint against the Department of Energy ("DOE"), alleging violations of Section 322(a) (1-3) of the Clean Air Act, (CAA) 42 U.S.C 7622; Section 7001(a) of the Solid Waste Disposal Act, (SWDA) 42 U.S.C 6971; Section 110(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, (CERCLA) 42 U.S.C 9610; and Section 211 of the Energy Reorganization Act of 1974, as amended, (ERA) 42 U.S.C 5851. The Complainant is represented by Edward A. Slavin, Esquire, St. Augustine, Florida, and the Respondent by Elizabeth Rose, Esquire, Acting Chief Counsel, Department of Energy, Carlsbad Field Office, Carlsbad, New Mexico.
This is the sixth in a series of cases that allege similar facts. In a decision, rendered by another administrative law judge, the claims brought in cases one to five were determined to be the same and after reviewing the facts, the newer claims were considered to be barred by collateral estoppel. See Case No. 1999-CAA-0004, March 10, 1999. The Administrative Review Board has issued a final decision in the first four Rockefeller cases on October 31, 2000, dismissing them. Rockefeller v. U.S. Dep't of Energy, ARB Nos. 99-002, 99-067, 99-068 and 99-063, ALJ Nos. 1998-CAA-10 and 11, 1999-CAA-1, 4 and 6, appeal docketed, No.00-9545 (10th Cir. Dec. 28, 2000). The final case was dismissed on other grounds on May 30, 2001; ARB No. 00-039, ALJ No. 1999-CAA-21 Rockfeller v. Carlsbad Area Office, U.S. Dept. of Energy. These were appealed by Rockefeller to the Tenth Circuit (10th Cir. Nos. 00-9545, 01-9529) and were subsequently dismissed on November 20, 2001 for lack of prosecution pursuant to 10th Cir. R. 42.1.
Currently before me are:
1. Complainant's Motion for Partial Summary Judgment regarding Rockefeller's status as an employee of DOE.
2. Respondent's Motion for Summary Judgment.
3. Complainant's Motion to Remand.
4. Complainant's request for a further continuance.
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The complaint in this case is not artfully drafted and several documents were attached to it and incorporated by reference as if set forth at length. OSHA found it was without merit, based in part because "his complaint fails to establish the elementary requirement that Respondent has been responsible for adversely affecting his status as an employee or his status as an ex-employee."
Counsel argues that Rockefeller was pro se when he drafted the complaint and that I should read in matters consistent with Rockefeller's theory of the case, as expressed by the request for hearing, filed after Counsel was obtained. In his request for hearing, Counsel addressed blacklisting, although that word does not appear in Rockefeller's complaint. Pro se pleadings are to be construed liberally, Hasan v. Sargent and Lundy, ARB No. 01-001, ALJ No. 2000-ERA-7 (ARB Apr. 30, 2001). In Hasan, although Complainant's pleadings were inartfully drafted, the Secretary had been able to discern the basis of his argument. See also Bonanno v. Northeast Nuclear Energy Co., 92-ERA- 40 and 41 (Sec'y Aug. 25, 1993), where the Secretary did not hold Complainant to the same standards for pleadings as if he were represented by counsel.
The Complaint speaks to several matters that do not entitle the Complainant to jurisdiction under the whistleblower acts, and he attempts to raise matters that have been finally adjudicated in several earlier cases that are administratively final, but he did allege that:
18. On 7/3/01 Complainant learned of Respondents' Slanderous Smear Campaign against him when he discovered and obtained a letter about him dated 6/14/01 which was issued to at least six locations across town. See Enclosure F.
Enclosure F was not attached to the copy of the complaint sent to me by Counsel for Civil Rights
Department of Labor, Dallas. The complaint does state that it sounds in retaliation under the whistleblower statutes.
Subsequently, Rockefeller submitted certain proposed stipulations, by counsel in his "Proposed Stipulations", numbers 13 through 15, appearing on page 5 of Complainant's Prehearing Exchange. These, in essence, accuse opposing counsel of committing certain acts of blacklisting. He listed her as the first witness on witness list. She purportedly blacklisted Rockefeller to six entities or persons. Who these persons are and their relationship to Rockefeller is unclear. These facts may be crucial in determining whether Rockefeller has employee status under the acts.
This case was originally set for January 15, 2002 and after a conference with the parties was reset for February 20. Complainant has filed a notice of conflict and has requested a new date. Respondent advises that if new counsel has to be obtained to try the case, two weeks preparation will be needed. DOE has not filed its Prehearing Exchange, pending resolution of this matter. I gave her an opportunity to advise me how to proceed, but as of this date counsel has not advised me whether she will continue to represent her client.
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Although the OSHA investigation report describes that a letter was sent about the Complainant, it accepts that, "None of these officials or managers caused any adverse effect on Complainant?s non-exsistent [sic] employment status."
After the OSHA investigation, with the request for hearing, Complainant requested partial summary judgment on the issue whether Rockefeller should be considered to be an "employee" in this action. He also requested a remand for a "proper" investigation.
In response, DOE argues that the complaint does not establish blacklisting. Besides the allegation that derogatory information was distributed about him, Rockefeller also alleged an altercation in a restaurant, but fails to set forth how that may affect an employment relation with DOE.
In its Motion to Dismiss, DOE alleges that Rockefeller?s claim of blacklisting, "raised in the Rockefeller VI and not in the instant case", is barred by the doctrine of collateral estoppel or issue preclusion, "since the issues are the same as those raised and decided upon by the Department of Labor?s Administrative Review Board".... DOE did not attach affidavits or provide any details concerning who wrote the letters alleged in stipulations 13 to 15, and did not attach affidavits from the recipients, so there is an open question regarding Rockefeller's status as an employee under the whistleblower acts. As Rockefeller has filed the prior claims, it is possible that he is entitled to status as a whistleblower. On the other hand, Rockefeller has not asserted how he was impacted.
2 Whistleblower provisions do not protect workers from unreasonable or arbitrary actions on the part of an employer -- rather, they only protect workers from actions taken in retaliation for engaging in activities protected by the ERA. Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995). Whistleblowing is not directly concerned with safety standards, only the deviation from or the flouting of them. Norris v. Lumbermen's Mut. Casualty Co., 881 F2d 1144 (1st Cir. 1989). The federal "whistleblower" statutes promote enforcement of environmental laws by protecting employees who aid a government enforcement agency. Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988).
3 42 U.S.C.A. § 7622 United States Code Annotated Title 42. The Public Health and Welfare Chapter 85--air Pollution Prevention and Control Subchapter III--General Provisions § 7622. Employee protection.
