U.S. Department of Labor
Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
Telephone (415) 744-6577
Fax (415) 744-6569
DATE: February 19, 1999
Case No. 1999-CAA-0006
In the Matter of
TOD ROCKEFELLER,
Complainant,
v.
CARLSBAD AREA OFFICE
(CAO), U.S. DEPARTMENT OF ENERGY;
WESTINGHOUSE ELECTRIC COMPANY, A
DIVISION OF CBS, INC., ANDWESTINGHOUSE
ISOLATION DIVISION (WID),
Respondents.
Before: Edward C. Burch
Administrative Law Judge
Decision and Order Recommending Dismissal With
Prejudice
Complainant, through counsel, has filed three prior complaints, alleging the same acts of
discrimination against the Department of Energy and Westinghouse Corporation, under the Clean
Air Act and other whistleblower acts. Those actions were (1) 98 CAA 10 and 11 (2) 99 CAA 1
and (3) 99 CAA 4. Judge Henry Lasky issued a Decision and Order recommending dismissal of
98 CAA 10 and 11. That Decision and Order has been appealed by complainant to the
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Administrative Appeals Board. Because Judge Lasky barred complainant's counsel from
appearing before him in any future proceeding the following three filings were assigned to the
undersigned. I issued a Decision and Order which recommended dismissal, with prejudice, of
99 CAA 1. My determination has also been appealed to the Administrative Appeals Board.
99 CAA 4 remains pending before me.
The same cause of action has been alleged in each filing, with some addition attached to those
filings subsequent to 98 CAA 10 and 11.
The present complaint again incorporates the allegations of the first and second complaint. The
addition in this complaint is dissatisfaction with the manner of service of the motions to dismiss
filed by respondents in 99 CAA 1. It is contended that the motions of Westinghouse and DOE
were sent to me by Federal Express whereas they were sent to complainant's counsel in a less
expeditious manner. It is contended complainant's rights were violated by the undersigned and
by respondents.
In 99 CAA 1 and 99 CAA 4 complainant's counsel was given the opportunity to support his
additional allegations, by responding to an Order To Show Cause.
The allegations of the present complaint are so patently absurd that such an order would serve no
purpose.
In addition to the allegations of 98 CAA 10 and 11, 99 CAA 1 alleged DOE and Westinghouse
wrongfully induced Judge Lasky to recommend dismissal of the complaints, and that improper
ex parte contacts had been made between Judge Lasky and respondents. There was also a
contention a copying expense was a whistleblower violation. Complainant was given the
opportunity to produce facts supporting his additional allegations.
My Order to Show Cause in 99 CAA 1 issued November 6, 1998. Complainant was required to
show cause, by November 20, 1998, why the matter should not be dismissed. Both sides were
given the opportunity to present briefs, to be received by November 27, 1998.
A Motion to Dismiss, filed by Westinghouse, was received November 25, 1998, and a like
motion by DOE was received November 27, 1998. Although these motions were granted in my
Recommended Decision and Order of Dismissal of December 4, 1998, they had not been
requested, were completely unnecessary, irrelevant, and were not discussed.
Complainant's response to my Order to Show Cause was received November 19, 1998. My
Recommended Decision and Order, which issued 15 days later, was based solely upon the failure
of complainant to meet the requirements of the Order to Show Cause. As I stated:
"Complainant's response to the Order to Show Cause contained many allegations and
citations. It contained no facts that would support the allegations of improper ex parte contacts
and undue influence. The Declaration of complainant's counsel details his experience and
expresses his opinions only...
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"The allegations of the second complaint, not alleged in the first complaints, have been
supported by no evidence. Those allegations are dismissed under both the doctrine of collateral
estoppel and for the reason they are unfounded attempts, completely lacking in evidence, to
impugn the integrity of the trial judge in the earlier case, solely for the reason the Judge's rulings
were adverse to complainant."
Complainants allegations in the instant case state no new valid cause of action. The additional
allegations are a red herring, an attempt to raise issues where none exist, simply to attempt to
support the serial filings of the same cause of action.
It is recommended that this matter be dismissed, with prejudice.
