these individuals included convicted felons, drug dealers and abusers, and persons with psychological problems. Complainants also asserted that they raised concerns regarding organized criminal activity, including gambling, drugs and prostitution, and government contract fraud. Johnson Compl. at 3-9; Warden Compl. at 3-8; McQuade Compl. at 3-8.

   Complainants alleged that a nexus existed between their security clearance concerns and the environmental laws. "Howse-Smith's apparent knowing and intentional security violations, suffered and permitted by DOE Oak Ridge Operations officials, have created a substantial risk of harm through the potential for explosions and pollution, representing a reckless or willful violation of the . . . environmental laws at the K-25, Y-12 Nuclear Weapons Plants and the Oak Ridge National Laboratory." Johnson Compl. at 6; Warden Compl. at 5; McQuade Compl. at 5 (para. num. deleted). Complainants asserted:

    Vesting security clearances in drug users, drug dealers and convicted criminals creates a substantial risk of accidental or deliberate releases for various foreseeable reasons. Vesting security clearances in unreliable personnel could result in release of pollutants at DOE facilities.

    On behalf of the United States, the American people entrust some 20,000 chemicals and radio nuclides to 17,000 DOE and contractor employees in Oak Ridge. The American people have a right to expect that accidental or deliberate releases of such materials will not occur because of negligent entrustment of such materials in the hands of persons liable to hand such materials over to terrorists, or to negligently, recklessly or intentionally spill or emit such substances into the air, land or waters of the State of Tennessee and the United States.

Warden Compl. at 16; McQuade Compl. at 14-15; Johnson Compl. at 16 (para. num. deleted).

   Complainants alleged that DOE officials retaliated against them for expressing their criticisms of ORO's administration of its security clearance program. Warden Compl. at 9; McQuade Compl. at 8-9; Johnson Compl. at 9-10. Johnson asserted that beginning in 1987, Howse-Smith abused and isolated her, and created a hostile working environment. Johnson stated that she was demoted from her team leader position at Howse-Smith's behest and was forced to accept a job offer at DOE's Germantown, Maryland facility in 1991. She also alleged that in continuing retaliation for her protected activity she was prevented from performing any inspection assignments at Oak Ridge as part of her current position. Johnson Decl. at 1-4; Oct. 30, 1995 ALJ Ord. at 3-4.

   Similarly, Warden asserted that starting in 1987 Howse-Smith (and branch chief Nettie Hudson) had retaliated against him by treating him in a hostile manner in staff meetings and private conversations; by attempting to bring criminal charges against him between 1990-92; by rescinding his designation as acting branch chief for the week of September 4, 1995; and by failing to provide him with his 1994-95 employee performance appraisal when it was due. Warden Decl. at 1-3; Oct. 30, 1995 ALJ Ord. at 4.

   III. Proceedings Below

Oct. 30, 1995 ALJ Ord. at 9-10.

   In response to the ALJ's order, Complainants filed a submission which stated in regard to each Complainant that the "protected activity under environmental whistleblower statutes includes but is not limited to the following employees with the characteristics described, whose work assignments pose dangers of environmental releases, spills, accidents and radiation exposures," and that "Complainants raised protected environmental concerns about numerous other persons whom Respondents have allowed to work in close proximity with bomb-grade uranium, radiation and toxic materials, repeatedly referring to the possibility of spills or criticality accidents." Complainants' First Environmental Protected Activity Summary at 1, 2, 9, 13. This submission then listed allegations regarding several current and former ORO employees.

SDWA, SWDA, and/or CERCLA, and are not grounded in conditions constituting reasonably perceived violations of the Acts.

* * * *

The only cases where whistleblowing on security clearance violations has been found to be a protected activity were brought under the ERA. Once the TSCA and ERA claims were dismissed [on sovereign immunity grounds], complainants were given the opportunity to come forward with specific claims of protected activities under CAA, SDWA, SWDA, and/or CERCLA, but they have failed to do so. Since the complainant's allegations, even if taken as true, fail to articulate a connection with a protected activity under these Acts, and the complainants have failed to raise a material issue of fact that a protected activity was involved in these events, the complainants cannot, as a matter of law, establish a prima facie case of a violation of the Acts.

R. D. and O. at 13-15 (emphasis added).

   With regard to the claims against Howse-Smith and the DOE Inspector General, the ALJ ruled that Complainants had "failed to allege that the IG is or was their employer" and that they "failed to raise any material issues of fact for hearing that" Howse-Smith was "an employer or employment agency . . . ." Id. at 12.

   In summary, the ALJ concluded "that the claims must be dismissed for multiple reasons, including untimeliness, improper parties, failure to state a claim on which relief can be granted, and/or failure to raise a genuine issue of material fact for a hearing under the cited statutes." Id.

   Any waiver of the government's sovereign immunity must be "unequivocal." U.S. Dept. of Energy v. Ohio, 112 S. Ct. 1627, 1633 (1992). Waivers of immunity must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires. Id. Thus, in Teles, the Secretary dismissed an ERA whistleblower complaint against DOE because the legislative history of the 1992 amendments to the ERA demonstrated an intent to exclude DOE from the definition of "employer" in the whistleblower provision, and the references to the United States as a "person" for purposes of legislation in other chapters of Title 42 of the U.S. Code dealing with energy matters were insufficient to constitute an unequivocal waiver of sovereign immunity under the whistleblower provision. Similarly, in Stephenson, the Secretary dismissed a TSCA complaint against NASA because sovereign immunity had not been unequivocally waived except for whistleblower complaints involving lead-based paint.

scope of the environmental statutes and regulations. Minard v. Nerco Delamar Co., Case No. 92-SWD-1, Jan. 25, 1995, Sec. Dec. and Rem. Ord., slip op. at 4, 8; Crosby v. Hughes Aircraft, Sec. Dec. and Ord., Aug. 17, 1993, slip op. at 26; R. D. and O. at 13. Thus, in order to have stated a valid claim under the environmental whistleblower provisions at issue here, Complainants were required to demonstrate that the concerns they expressed regarding the security clearance operation were "grounded in conditions" that reasonably could be concluded to relate to the CAA, SDWA, SWDA, or CERCLA.

   Complainants argue that the federal security clearance requirements and procedures for DOE employees and applicants set forth at 10 C.F.R. Part 710 (1998) were improperly implemented and enforced, and that such improper enforcement could result in environmental damage in violation of the CAA, SDWA, SWDA, or CERCLA.

a reasonable belief that he is disclosing a violation of law, rule or regulation; statute enacted to protect employees who report genuine infractions of law, not to encourage employees to report arguably minor and inadvertent miscues occurring in the conscientious carrying out of assigned duties).

   III. Additional Issues on Appeal

       A. Discovery

   In ruling that Complainants' security concerns were not protected activities under the CAA, SDWA, SWDA or CERCLA, we have considered their argument that the ALJ should not have limited discovery to the timeliness issue (see R. D. and O. at 3-4, 8, 10) but should have allowed discovery of protected activities through disclosure of the Case Review and Analysis Sheets which Complainants had previously prepared (in the course of their work), and which were in the possession of DOE. Complainants' Rebuttal Brief at 12-13; Complainants' Motion for Summary Reversal and Opening Brief at 2, 9, 13-15.

   We agree with the ALJ that "[d]iscovery is unnecessary for complainants to counter the respondents' assertion that they have failed to state a claim with respect to protected activity because necessary facts to do so are within the complainants' own personal knowledge." R. D. and O. at 14. See also R. D. and O. at 3-4, 8, 10. Complainants' alleged protected activities involved their criticisms of Oak Ridge's implementation and enforcement of federal personnel security clearance requirements and procedures. As Complainants' First Environmental Protected Activity Summary -- submitted to the ALJ in response to DOE's motion for summary judgment -- makes clear, discovery of the Case Review and Analysis Sheets which Complainants themselves had previously prepared would not have changed the nature of their protected activities claim. Complainants asserted that:

    Environmental releases of enormous consequences could result from putting such criminal and questionable employees as those more than 40 persons recounted above to work in nuclear weapons plant positions where they have access to and hegemony over radioactive and toxic materials. This brings this case within the ambit of each of the environmental whistleblower laws.

* * * *

   If the Court needs further facts, Complainants require access to their signed case analysis and review sheets . . . to give the Court further details on these and other cases. In one year, Ms. Johnson was involved in 700 cases. It is astounding for DOE to expect Complainants to recall all such details without access to their notes in the DOE files.

Complainants' First Environmental Protected Activity Summary at 13, 15 (emphasis added).

   Discovery of the Case Review and Analysis Sheets would merely have provided "further details" regarding the employees described in the Summary as well as additional examples of such employees. Discovery would not have changed the speculative basis of Complainants' assertion that they engaged in activity protected by the CAA, SWDA, SDWA, or CERCLA. Accordingly, Complainants were not prejudiced in the presentation of their argument regarding the scope of those environmental statutes. See Reid v. Secretary of Labor, 1996 WL 742221, at *2 (6th Cir. 1996) (allegations that Secretary and ALJ committed reversible error in ALJ's refusal to order discovery prior to ruling on jurisdictional underpinnings of case is meritless; facts necessary to determine whether complainant was an employee under whistleblower statutes were in his control at all times); Freel v. Lockheed Martin Energy Systems, ARB Case No. 95-110, ALJ Case Nos. 94-ERA-6, 95-CAA- 2, Fin. Dec. and Ord., Dec. 4, 1996, slip op. at 9-10 (discovery unnecessary because complainant had personal knowledge of evidence concerning identity of her employer). In sum, the ALJ's limitation on discovery was neither arbitrary nor an abuse of discretion. Robinson v. Martin Marietta Services, Inc., ARB Case No. 96-075, ALJ Case No. 94-TSC-7, ARB Fin. Dec. and Ord., Sept. 23, 1996, slip op. at 4.

       B. Request for Protective Order

   Joe La Grone, retired Manager of Oak Ridge Operations, requests that the Board issue a protective order continuing the protection afforded by the ALJ's May 18, 1996 Order Granting Non-Party Motion for Protective Order, which limited the use of La Grone's October 30, 1995 videotape deposition (also taken by stenographic means) to the instant proceeding unless the ALJ ruled otherwise. The ALJ's protective order expired by its terms upon our assumption of jurisdiction. Id. at 2. The ALJ's order was predicated on an agreement between counsel for La Grone and Complainants so that the videotaping could proceed although La Grone had not received proper notice of the taping or its purpose prior to his arrival at the deposition. La Grone Dep., Vol. I, at 4-8.

   Complainants' counsel opposes a new protective order. He argues that La Grone's motion is a sub rosa attempt by DOE to preclude use of the videotapes in proceedings before the Equal Employment Opportunity Commission involving complainant McQuade and to interfere with Complainants' First Amendment rights. La Grone denies that DOE influenced his motion to the Board. He states that the only reason he agreed to the videotape deposition was because he was going to be unavailable on the expected ALJ hearing date and Complainants' counsel agreed to limits on its use. (We do not know whether McQuade's EEOC matter remains pending at this time.)

   We decline to issue a new protective order limiting the use of the videotape deposition to the instant proceeding and barring its disclosure "to any other person or entity unless the Court and/or Administrative Review Board rules otherwise" (La Grone's proposed order). La Grone has not shown that issuance of such an order is required by justice under 29 C.F.R. §18.15(a), particularly since he does not oppose dissemination of the transcribed version of the identical deposition and is not subject to further burden or embarrassment because the videotape deposition has already been taken. We believe that the interests of justice are best served by not restricting use of the videotapes. Holden v. Gulf States Utilities, Case No. 92-ERA-44, Sec. Dec. and Rem. Ord., Apr. 14, 1995, slip op. at 7-9.

      C. Requests to Supplement Record

   Complainants' counsel submitted several documents to the Board during the briefing period and subsequent thereto, seeking to have them considered. These materials include a March, 1997 report of the U.S. General Accounting Office entitled "Nuclear Employee Safety Concerns-- Allegation System Offers Better Protection, but Important Issues Remain"; a February 21, 1990 DOE memorandum captioned "Visit of the House Energy and Commerce Committee/Oversight and Investigations Subcommittee staff to Oak Ridge, February 14-16, 1990," involving ORO Personnel Security Branch employee complaints that a number of their security clearance recommendations were overturned; a July 31, 1991 letter to the Secretary of Energy from John D. Dingell, Chairman of the House Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, involving McQuade; an April, 1996 Energy Department report entitled "Independent Oversight Baseline Assessment of the Effectiveness of Safety and Security Management Programs within the Department of Energy"; July 2, 1997 Knoxville News-Sentinel and October 22, 1997 Associated Press and USA Today articles concerning security problems at DOE facilities; a May 18, 1998 Knoxville News-Sentinel article reporting a deposition by former DOE Secretary Hazel O'Leary involving a lawsuit brought by an Oak Ridge employee (not one of the complainants in this case); April 1 and May 13, 1998 Knoxville News-Sentinel articles involving purported harassment against Oak Ridge nuclear couriers; an article by Nahum Litt, "Doing It with Mirrors: The Illusion of Independence of Federal Administrative Law Judges" ABA Judges' Journal 27 (Spring 1997); and an article by Leonard W. Shroeter, "Human Experimentation, the Hanford Nuclear Site, and Judgement at Nuremberg," 31 Gonzaga L. Rev. 147 (1997). None of these materials is relevant to the issue before us on appeal, i.e., whether Complainants have stated a claim under the CAA, SDWA, SWDA or CERCLA. We therefore decline to reopen the record to admit these post-hearing documentary submissions.

   In addition, on May 22, 1998, Complainants' lead counsel submitted to this Board the autopsy report on the presiding ALJ, who died several months after issuing the R. D. and O. The autopsy report ostensibly was submitted to demonstrate that the ALJ was in some way unbalanced, and that her rulings therefore were tainted.

   An administrative law judge's decisions stand or fall on their merits. We have reviewed the record in this case, and find nothing improper in any of the rulings of the presiding ALJ. Indeed, it is clear that the ALJ went to extraordinary lengths to be fair and objective to Complainants, notwithstanding the difficult behavior of their counsel.

   Attorneys have a professional obligation to demonstrate respect for the courts. See ABA Model Rules of Professional Conduct Rules 3.5 and 8.2 (1999); 29 C.F.R. §18.36. It is clear to us - as it no doubt was clear to counsel - that the autopsy report is completely irrelevant to the merits of Complainants' challenge to the ALJ's rulings. To the extent that the report is offered by counsel in an effort to sully the reputation of the ALJ posthumously, such a personal attack is contemptible. The May 22, 1998 letter and autopsy report are excluded from the record in this case.

   Sovereign immunity protects DOE from suit under the whistleblower provisions of the ERA and TSCA. Complainants Virginia Johnson, Kenneth W. Warden, and Dennis McQuade have failed to establish, as a matter of law, that their alleged activities were protected under the CAA, SDWA, SWDA, or CERCLA. Therefore, Complainants failed to state a claim upon which relief can be granted, and the complaints are DISMISSED.

   SO ORDERED.

      PAUL GREENBERG
      Chair

      E. COOPER BROWN
      Member

      CYNTHIA L. ATTWOOD
      Member