Department of Labor Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
DATE: June 4, 1999
CASE NO.: 1999-CAA-15
IN THE MATTER OF
WALTER R. MOORE, Complainant
v.
U.S. DEPARTMENT OF ENERGY, Respondent.
ORDER
This matter arises from a complaint of retaliation pursuant to the Clean Air
Act (CAA), 42 U.S.C. §7622 (1994), the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. §9610, and the Surface Transportation
Assistance Act (STAA), 49 U.S.C. §31101. The complaint was filed on February 23, 1999
with the Occupational Safety and Health Administration (OSHA), United States Department of
Labor. The complaint alleged Mr. Moore and other couriers' rights to raise concerns were violated
when on January 25, 1999, the "Professionalism Team" issued "Recommended
TSD Standards" that include chilling effects on environmental whistleblower and First
Amendment rights of DOE employees. Mr. Moore received this document on February 22, 1999.
On April 6, 1999, after review of the Recommended TSD Standards, OSHA
dismissed the complaint on the grounds that the document does not contain the necessary criteria
which would constitute a complaint of discrimination under the Acts noted above.
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The Complainant timely appealed the dismissal of the complaint. Pursuant to
the direction of this Court, Complainant filed an Amended Complaint on May 13, 1999. On May
24, 1999, Complainant filed a Motion for Partial Summary Judgment and a Motion to Compel
Discovery. On May 28, 1999, Respondent filed a Motion to Dismiss and a Motion to Stay
Proceedings including discovery and the hearing set for June 15, 1999.
On May 28, 1999, a telephone conference was held with counsel for the
parties. Mr. Slavin expressed his opposition to the Motion to Stay Proceedings and his desire that
the hearing be held as scheduled. Mr. Slavin requested the Respondent's motions be faxed to him
and he would file his reply by fax before midnight on June 1, 1999. I required Respondent to fax its
motions to Mr. Slavin and gave Mr. Slavin permission to fax his reply to the motions before
midnight on June 1, 1999. I delayed the pretrial exchange of witnesses and exhibits until June 7,
1999, and I delayed the time for Respondent to respond to discovery until after I had ruled on
Respondent's motions.
Respondent's Motion to Dismiss is based on arguments that (1) the STAA
explicitly excludes federal employees from its provisions; (2) the Civil Service Reform Act, 5 U.S.C.
§§2301, et seq., is the Complainant's sole remedy; (3) the United States has not waived
sovereign immunity under the CAA and CERCLA; and (4) the Complainant fails to allege essential
elements of a prima facie case under the STAA, CAA and CERCLA.
DISCUSSION AND FINDINGS
STAA Jurisdiction
The rules of practice and procedure applicable to administrative hearing under
environmental whistleblower statutes do not contain a section pertaining to motions to dismiss.
However, §18.1(a) provides that in situations not provided for in Part 18, the Federal Rules
of Civil Procedure apply. Federal Rule 12(b)(1) provides for motions to dismiss for lack of subject
matter jurisdiction. Two types of 12(b)(1) motions have been recognized. A "facial"
12(b)(1) motion merely questions the sufficiency of the pleading, and in reviewing this type of
motion, the court takes the allegations of the complaint as true. The second type of 12(b)(1) motion
is a "factual" motion. When a court reviews a complaint under a factual attack, no
presumption of truthfulness applies to the factual allegations, and the court is permitted to consider
affidavits and documents submitted in support of the motion. Ohio National Life Insurance Co.
v. United States, 922 F.2d 320 (6th Cir. 1990).
Respondent has made a "factual" jurisdiction challenge and
submitted documents in support of its motion to dismiss. It is well-settled law that the burden of
establishing jurisdiction is on the plaintiff. Where the party seeking dismissal on grounds of lack of
subject matter jurisdiction makes a factual attack and presents affidavits or documents, the burden
placed on the plaintiff is not onerous as he is required only to demonstrate facts which support a
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finding of jurisdiction in order to avoid a motion to dismiss. Moreover, the trier of fact must consider
facts in light most favorable to the plaintiff. Welsh v. Gibbs, 631 F.2d 436 (6th Cir. 1980)
An "employee" under the STAA does not include ". . . an
employee of the United States Government, a state or a political subdivision of a state acting in the
course of employment." 29 C.F.R. §1978.101(d); 49 U.S.C §31101(2)(B); and
an "employer" under the STAA does not include the United States Government, a state
or a political subdivision of a state. 49 U.S.C. §31101(3)(B).
Attached to the Motion to Dismiss is the Recommended Decision and Order
Granting Summary Judgment issued by Judge C. Richard Avery in Complainant's previous
whistleblower complaint. Judge Avery cites the sworn complaint in which Complainant states that
he has been a ten year employee of the Department of Energy as a special agent charged with
transporting and guarding nuclear weapons and materials. Complainant has not challenged this
representation and there appears to be no factual issue that at all times relevant Complainant was and
is an employee of the United States Government. Therefore, I grant Respondent's Motion to Dismiss
the Complaint under the STAA.
Sovereign Immunity/Exclusive Remedy Under CSRA
Respondent next asserts that the Secretary lacks jurisdiction over the subject
matter of the complaint as sovereign immunity has not been waived and that the CSRA is the
exclusive means for resolving employment disputes between federal agencies and their employees.
The Secretary has rejected similar argument that the CSRA provides a preemptive and exclusive
remedy for federal employee whistleblowers in Conley v. McClellan Air Force Base, 84-
WPC-1 (Sec'y Sept 7, 1993) and Pogue v. United States Dept. of Navy, 87-ERA-21 (Sec'y
May 10, 1990), rev'd on other grounds, Pogue v. United States Dept. of Labor,
940 F.2d 1287 (9th Cir. 1987).
There is nothing in either the CERCLA or CAA to suggest exclusion of
government employees. The Secretary has specifically found that the CERCLA contains express
language subjecting Federal agencies to its provisions, including its employee protection provisions.
The Secretary has also found that Congress intended all the requirements of the CAA to apply to the
federal government. William L. Marcus v. U.S. Environmental Protection Agency, 92-
TSC-5 (Sec'y Feb 7, 1994). Therefore, I deny Respondent's Motion to Dismiss the Complaint based
on sovereign immunity and that the exclusive remedy is under CSRA.
Failure to State Claim
The standard for dismissal for failure to state a claim upon which relief can
be granted is set forth in Varnadore v. Martin Marietta Energy Systems, 92-CAA-2, 92-
CAA-5, 93-CAA-1, 94-CAA-2, 95-ERA-1 (ARB June 14, 1996). The facts alleged in the complaint
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are taken as true, and all reasonable inferences are made in favor of the nonmoving party. A
dismissal is purely on the legal sufficiency of the complainant's case. Even if the complainant proves
all of the allegations in the complaint, he could not prevail. Even if the facts alleged are taken as true,
no claim has been stated which would entitle the complainant to relief. (Varnadore, at 38-
39).
Respondent bases this motion on Complainant's failure to state (1) that he has
engaged in protected activity; (2) that Respondent knew of such activity; and (3) that he has been
subjected to adverse action as a result of such protected activity. Under CAA and CERCLA,
Complainant has the burden of proving these three elements and that he is a covered employee.
I recognize that pursuant to 29 C.F.R. §24.3(c) a complaint that is filed
to begin an investigation is not required to be in a particular form. While the complaint filed in this
case is sufficient to require an investigation by OSHA, in my pretrial order I required the filing of
a formal complaint setting forth in detail the nature of each and every violation. Based on the
standard set forth in Varnadore, it is clear that even if Complainant proved all of the
allegations in the amended complaint filed pursuant to my pretrial order, he could not prevail. Thus
dismissal for failure to state a claim is appropriate.
While dismissal for failure to state a claim might be appropriate, I find the
dismissal should be without prejudice and Complainant should be given an opportunity to file an
Amended Complaint.
ORDER
1.
Complainant's complaint under the STAA is hereby DISMISSED for lack of jurisdiction.
2.
Respondent's Motion to Dismiss based on Sovereign Immunity/Exclusive Remedy Under
CSRA is DENIED.
3.
Complainant's complaint under the CAA and CERCLA is hereby DISMISSED without
prejudice for failure to state a claim upon which relief can be granted. On or before June 30, 1999,
the Complainant shall file with the undersigned Administrative Law Judge and serve upon the
Respondent an Amended Complaint.
4.
Upon receipt of the Amended Complaint, the undersigned Administrative Law Judge will issue a
pre-trial order setting forth the time requirements for filing responsive pleadings and discovery.
5.
Respondent's Motion to Stay Proceedings is granted. The hearing scheduled for June 15,
1999, is hereby canceled.
6.
All other relief sought by the parties in their respective motions is DENIED at this time
without prejudice.