Office of Administrative Law Judges 50 Fremont Street, Suite 2100
San Francisco, CA 94105
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(FAX)
DATE: JANUARY 13, 2000
CASE NOS. 1999-CAA-0021
1999-CAA-0022
In the Matter of
TOD N. ROCKEFELLER,
Complainant,
v.
CARLSBAD AREA OFFICE (CAO)
U.S. DEPARTMENT OF ENERGY;
WESTINGHOUSE ELECTRIC CO. (WID)
Respondent.
RECOMMENDED DECISION AND ORDER OF
DISMISSAL
This is the fifth filing of the same cause of action by Complainant Tod Rockefeller. The first
filing, 98 CAA 10 and 11, resulted in a Recommended Decision and Order by Judge Henry
Lasky, under date of September 28, 1998. Complainant had alleged he was removed from his
employment because of protected activity as defined by section 322(a) of the Clean Air Act and
section 31105 of the Surface Transportation Assistance Act. Judge Lasky's Recommended
Decision and Order recommended dismissal of complainant's actions.
The second, third and fourth filings, 99 CAA 0001, 99 CAA 0004, and 99 CAA 0006 all resulted
in decisions by the undersigned, recommending their dismissal. Each case repeated the
allegations of protected activity as alleged in 98 CAA 10 and 11. Each filing, however, in an
attempt to circumvent collateral estoppel, alleged additional wrongdoings misconduct by Judge
Lasky, a violation of the Freedom of Information Act, and misconduct of counsel. All were
found to be without merit. Those four cases are now on appeal to the Administrative Appeal
Board.
The instant case again alleges the same violations of protected activity. This time, to circumvent
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the effect of collateral estoppel, a further violation of the Freedom of Information Act is alleged.
The specific violation alleged is the destruction of documents which are subject to the Freedom
of Information Act. Certain documents were redacted and then released pursuant to
complainant's FOIA request. A document obtained by complainant states that an employee of
DOE "arranged the destruction of the unredacted versions which were released to the
appellant in redacted form, as well as destruction of the Notice of Proposal to Remove."
By Motion received December 7, 1999, DOE filed its Motion to Dismiss. The Motion was
supported by the affidavit of the attorney for DOE, which established that the original of the
documents in question were never destroyed, but remain in her possession. If any documents
were destroyed, they were only copies.
Complainant was given the opportunity to show cause why this matter should not be dismissed.
Complainant's response was received January 3, 2000. No evidence was offered to overcome the
fact that the originals were never destroyed. Complainant's response thus failed to meet the
requirements of the Order to Show Cause.
There is no new cause of action. Collateral estoppel here applies as it did in the second, third and
fourth cases filed.
Any complaint complainant might have concerning denial or redacting of FOIA requests must be
addressed in U.S. District Court. 5 USC 552(a) et seq.
It is recommended that this matter be dismissed, with prejudice.