This proceeding arises under the Energy Reorganization Act of 1974("ERA"), 42 U.S.C. § 5851 (1988 and Supp. IV 1992), the Atomic Energy Act of 1954, 42 U.S.C. §2011 et seq., and the regulations promulgated thereunder at 29 C.F.R. Part 24, which are the employee protective provisions of the ERA. Under these provisions, the Secretary of Labor is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission("NRC"), who are allegedly discharged or otherwise discriminated against with regard to their terms and conditions of employment, for taking any action relating to the fulfillment of safety or other requirements established by the NRC.

   In January 2001,Complainant reported that he was fired from his employment with U.S. Robotech, Inc. as a result of disclosures that he made in a letter on November 17, 2000 to the NRC's Regional Administrator, Region IV. Complainant asserted that this letter contained allegations of misconduct by Region IV employees and that the inappropriate handling of this letter by Region IV senior management caused his termination of employment at U.S. Robotech, Inc.

Subsequently, in March 2001, Complainant filed a wrongful termination complaint against U.S. Robotech, Inc, the NRC, Respondent, and several named individuals in its management positions. On August 30, 2001, the NRC submitted a Motion to Dismiss with this Court. After that date, the parties participated in a mediation within the NRC in order to resolve Complainant's claim against Roy Thompson and U.S. Robotech. This mediation was successful and resulted in a settlement with those two parties. The only contested issue with this Court is Respondent's Motion to Dismiss. This Court ordered both parties to submit briefs on Respondent's motion, which were timely received. After considering the arguments and legal precedent presented by the parties, this Court grants Respondent's Motion to Dismiss on the following grounds.

Standards for Motions to Dismiss

   The rules of practice and procedure applicable to administrative hearings 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. See F.R.C.P. 12(b). Two types of 12(b)(1) motions have been recognized. A facial motion merely questions the sufficiently 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. See Ohio National Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990); F.R.C.P. 12(b)(6).

Sovereign Immunity

   In the present case, Respondent has made a factual jurisdiction challenge in its motion to dismiss. It is well-settled law that the burden of establishing jurisdiction is on the Complainant. See Welsh v. Gibbs, 631 F.2d 436 (6th Cir. 1980). Respondent, a federal agency, contends that the undersigned is without jurisdiction because the employee protection provisions of the ERA, codified at 42 U.S.C. §5851, exclude the United States as a "person" against whom a claim may be filed. More specifically, it is argued that because sovereign immunity has not been expressly waived by the language of the statutory regulations, Complainant is not entitled to bring an action against Respondent. Complainant, on the other hand, contends that Respondent has indeed waived its defense of sovereign immunity because Congress waived it under its re-enactment of §211 of the Act (42 U.S.C. §5851).

   It has been held that any waiver of the National Government's sovereign immunity must be unequivocal. United States v. Mitchell, 445 U.S. 535, 538-539, 100 S.Ct. 1349, 1351-1352, 63 L.Ed.2d 607 (1980). Additionally, waivers of immunity must be construed strictly in favor of the sovereign and not be enlarged beyond what the language requires. McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951); Eastern Transportation Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927).

   Therefore, in order to establish whether or not this Court has jurisdiction to decide this case, the threshold issue for determination is whether Respondent is a "person" or "employer" within the meaning of the employee protection provisions of the ERA.

The Nuclear Regulatory Commission and The Energy Reorganization Act ("ERA")

   Under the relevant ERA's employee protection provisions:

(A)(1) No employer may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to a request of the employee, engaged in any of the activities specified in this section.
(A)(2) For purposes of this section, the term "employer" includes --

(A) a licensee of the Commission or of an agreement under section 274 of the Atomic Energy Act of 1954;
(B) an applicant for a license from the Commission or such an agreement;
(C) a contractor or subcontractor of such a licensee or applicant; and
(D) a contractor or subcontractor of the Department of Energy that is indemnified by the Department under section 170(d) of the Atomic Energy Act of 1954, but such term shall not include any contractor or subcontractor covered by Executive Order No. 12344. 42 U.S.C. §5851.

The plain text of this statutory language does not include the United States government. Thus, a strict interpretation of the plain statutory language, as well as the jurisprudence discussed below, indicates that the Complainant has no authority to file a cause of action against the Respondent.

   Complainant devotes much of his argument to the legislative intent. Specifically, he asserts that Congress intended to incorporate the NRC, and its contractors, because Congress expanded the definition of an "employer" to include contractors and subcontractors of the Department of Energy. However, this argument has been rejected within the Department of Labor. In Teles v. Dept. of Energy, No. 94 ERA-22 (Sec'y Aug. 7, 1995), for instance, the Secretary dismissed an ERA whistleblower complaint against the Department of Energy because the legislative history of the 1992 amendments to the ERA demonstrated an intent to exclude the department from the definition of "employer" in the whistleblower provision. This Court agrees, and notes that it is reasonable to presume that Congress would specifically have included the NRC and its contractors in its list of employers at the time of the amendment, had it intended that the Commission be subject to the employee protective provisions. Since Congress saw fit to specifically name certain entities, contractors and subcontractors of the Department of Energy, in the list of covered "employers," it is more likely that the list is exclusive, and not merely illustrative. Therefore, this Court finds no clear evidence of a legislative intent to include the NRC as an "employer" subject to the employee protection provisions of the ERA.

   Additionally, this Court finds that the NRC does not constitute a "person," subject to the employee protection provisions of the ERA. Complainant attempts to demonstrate a waiver of sovereign immunity on these grounds by analogizing this case to other circumstances where the Department of Labor has found waivers of sovereign immunity under "similar employee protection statutes." In particular, Complainant argues that other agencies of the federal government have waived their sovereign immunity, and thus invoking the whistleblower statute, where said agencies were actually operating under the environmental statute at issue. This Court finds no justifiable reason to extend this rationale to the present case.

   Additionally, the Administrative Review Board has specifically refused to infer a waiver of sovereign immunity in Section 211 that authorizes a complaint against a federal agency. See David Marshall High v. Lockheed Martin Energy Systems, et. al. and the United States Department of Energy, No. 01-ARB-14 (March 13, 2001). The jurisprudence addressing sovereign immunity is clear that any waiver must be "unequivocal," and must not be enlarged beyond the statutory language. See Teles v. Dept. of Energy, No. 94-ERA-22 (Sec'y Aug. 7, 1995). It would be contrary to this principle to infer a waiver of sovereign immunity in §211, on grounds that other employee protection provisions provide for a waiver of sovereign immunity. Therefore, after considering the jurisprudence on point and the arguments presented by both parties, this Court finds no evidence in the language or legislative intent behind the statute constituting a waiver of sovereign immunity. As such, Respondent cannot be considered an "employer," "joint employer,"or "person" subject to the employee protection provisions of the ERA and should be dismissed from this case.

Individual NRC Officials

   Complainant also named several individual NRC officials in his complaint. In its motion, the NRC requests that these parties also be dismissed on sovereign immunity grounds. In general, personal liability complaints are not allowed against federal officials unless the governing statute shows an intent to include such complaints. See Stephenson v. NASA, No. 64-TSC-5 (Sec'y July 3, 1995). As discussed previously, this Court has found no legislative intention to include the NRC as an "employer." For those same reasons, this Court finds no legislative intention to include NRC officials as "employers" who would be subject to the employee protection provisions of the ERA.

   After considering Complainant's pleadings and statement of the facts in this case, this Court finds that he alleges retaliatory conduct on the part of these officials within the scope of the officials' employment with the NRC. Claims against a public official, acting within the scope of employment, are analogous to claims against the government, the sovereign. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358 (1991). Since this Court finds that there is no waiver of sovereign immunity to subject the NRC to the ERA's employee protection provisions, there is similarly no waiver of sovereign immunity for the named NRC employees, acting in their official capacity. Therefore, these claims should also be dismissed.

   1. This Court finds that neither Respondent, nor its employees, acting in official capacity, are subject to the employee protection provisions of the ERA, since they are not included as "employers" under said Act.

   2. After construing the evidence regarding sovereign immunity in the light most favorable to the sovereign, this Court also finds that Complainant has failed to establish any waiver of sovereign immunity that would subject either Respondent or its employees to suit under the employee protection provisions of the ERA.

   Pursuant to the rules governing motions to dismiss, this Court finds that for the abovementioned reasons, Complainant would not be entitled to any relief against Respondent, United States Nuclear Regulatory Commission or any named employee under the employee protection provisions of the ERA.

   Accordingly, this Court recommends that Complainant's claim be DISMISSED against the Nuclear Regulatory Commission and any named employees.

   So ORDERED.

       RICHARD D. MILLS
       Administrative Law Judge

RDM/sls

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).