Date: February 28, 1995
Case No. 94-ERA-22
In the Matter of:
Stefan K. Teles,
Complainant,
v.
U.S. Department of Energy,
Respondent.
RECOMMENDED ORDER OF DISMISSAL
This is a whistleblower action brought under the employee
protection provisions of the Energy Reorganization Act, as
amended (hereinafter "ERA" or "Act"), 42 U.S.C. §5851 et
seq.
Complainant Stefan Teles was employed by Respondent United
States Department of Energy (DOE) as an Industrial Hygienist in
Richland, Washington, where he was responsible for providing
oversight and management of health and safety programs for three
of the four major federal contractors who were performing
environmental remediation for the Hanford nuclear site.
Complainant alleges that Respondent retaliated against him in his
employment because he documented contract mismanagement and
noncompliance by a federal contractor who had political influence
within DOE. In addition, Complainant alleges that he suffered
retaliation in his employment for reporting deficiencies in DOE's
management of key health and safety programs affecting all
Hanford employees. The Wage and Hour Division of the Department
of Labor (DOL) conducted an investigation and was unable to
substantiate Complainant's allegations. Complainant subsequently
appealed the Wage and Hour Division's decision to the Office of
Administrative Law Judges and requested a hearing on the matter.
DOE has filed a motion to dismiss on the grounds that this
Office does not have subject matter jurisdiction over this case,
and Complainant failed to perfect his request for hearing before
this Office in the manner required by 29 C.F.R.
§24.4(d)(2)(i).
Subject Matter Jurisdiction
[PAGE 2]
DOE argues that the DOL does not have jurisdiction in this
matter because the ERA's whistleblower provision does not include
DOE as an "employer." DOE further argues that the Secretary of
Labor has never found DOL to have jurisdiction over a complaint
by a federal employee under the ERA. In addition, DOE contends
that the rationale used by the Secretary in finding jurisdiction
under whistleblower provisions in other statutes does not apply
under the ERA.
Complainant counters that although the ERA does not
explicitly identify DOE as an *employer" in its employee
protection provision, the legislative history of the 1992
Amendments, the broad language of the Act, and the fact that the
Secretary has found government agencies liable under a
significant number of other whistleblower provisions leads to the
conclusion that the ERA was intended to cover a broad range of
actors, including the DOE.
Under well settled law, any waiver of the National
Government's sovereign immunity must be 'unequivocal." U.S.
Department of Energy v. Ohio, 112 S.Ct. 1627, 1633 (1992).
'Waivers of immunity must be 'construed strictly in favor of the
sovereign,' and not 'enlarge[d] ... beyond what the language
requires." Id., citing Eastern Transportation Co. v.
United States, 272 U.S. 675, 686, 47 S.Ct 289, 291, 71 L.Ed.
472 (1927)(citations omitted). Thus, I must examine the ERA's
employee protection provision to decide whether Congress has
"unequivocally" stated that claims can be brought against
government agencies and, specifically, the Department of Energy.
Where, as here, resolution of a question of federal law turns on
a statute and the intent of Congress, the statutory language
should be first scrutinized, and if found unclear, then
legislative history should be consulted for clues of
congressional intent. Blum v. Stenson, 465 U.S. 886, 896
(1984).
Statutory Construction
The Secretary of Labor has previously held that several
environmental statutes allow federal employees to bring actions
under their whistleblower protection provisions. Pogue v.
United States Department of Navy Mare Island Naval Shipyard,
87-ERA-21 (Sec'y May 10, 1990)(CERCLA); Conley v. McClellan
Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993) (CWA); and
Marcus v. Environmental Protection Agency, 92-TSC-5 (Sec'y
Feb. 7, 1994)(CERCLA, SDWA, CWA, CAA). Complainant argues that
the language in these statutes is similar to the language in the
ERA's employee protection provision and that therefore the
jurisdiction should
[PAGE 3]
also be found under the ERA. Respondent, however, argues that
these statutes are distinguishable.
DOE as an "employer"
In finding jurisdiction under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA),
42 U.S.C. §9610 et seq. (1988), and the Solid Waste
Disposal Act, the Secretary of Labor relied on the inclusion of
the Federal Government within the definitions of 'person,' as
well as the interchangeable use of the terms "employer" and
"person' in referring to the same actor engaged in unlawful
conduct. Marcus v. Environmental Protection Agency, 92-
TSC-5 (Sec'y Feb. 7, 1994). Sections 5851(b)(1) and (b)(2)(A) of
the ERA also use the terms 'employer' and 'person"
interchangeably. However, unlike CERCLA and the Solid Waste
Disposal Act, which contain definition sections defining 'person'
to include the Federal Government, the ERA does not contain a
definition section.
Complainant argues that the Energy Policy and Conservation
Act, also in Title 42, broadly defines 'person' to include the
government and any agency of the United States. 42 U.S.C.
§6202(2). However, the fact that another statute in the
same Title includes an agency of the United States in its
definition of 'person,' without more, is no argument that its
definition of "person' should be incorporated into the ERA. In
addition, Complainant cites Emory v. United States
Environmental Protection Agency, 93-SDW-4 (ALJ Dec. 3, 1993),
wherein the Administrative Law Judge found that the United States
is expressly included as a "person" under the ERA, in support of
its argument. The Administrative Law Judge in Emory based
his finding on the definition of "person" found in the Atomic
Energy Act of 1954 (AEA)[1] . As this definition includes all
Government agencies other than the "Commission,"[2] the
Administrative Law Judge in Emory found that all United
States government agencies, with the exception of the Nuclear
Regulatory Commission, were "person[s]" under the ERA. 42 U.S.C.
§§2014(s). However, according to another definition in
the same section of the AEA, the term 'Commission" refers not to
the Nuclear Regulatory Commission (NRC, but to the Atomic Energy
Commission, an entity which is no longer in existence. 42 U.S.C.
§§2014(f). Moreover, as both DOE and the NRC have
undertaken the functions of the Atomic Energy Commission, section
2014(s) can be read to state that both DOE and the NRC are
governmental agencies which can not be considered "person[s]"
under the ERA. Complainant's arguments, therefore, do not support
his contention that DOE is an "employer" under the ERA.[3]
[PAGE 4]
Complainant additionally argues that the interchangeable use
of the words "employer" and "person" indicates that the ERA's
prohibitions are not limited to "employer[s]" solely within the
list set out in §5851(a)(2).[4] Complainant contends that
the word "includes" in §5851(a)(2) indicates that the list
following the word "employer" is merely illustrative in defining
the employers who are subject to the ERA, and is not limiting.
Thus, Complainant argues that if Congress meant to limit the term
"employer," it would have used the word "means," instead of
"includes." 2A SUTHERLAND STATUTES AND STATUTORY
CONSTRUCTION §47.07, at 152 (5th ed. 1992).
DOE cites Adams v. Dole, 927 F.2d 771, cert.
denied, 112 S.Ct. 1222 (1991), for the proposition that, in
the context of the ERA, the meaning of the word "includes"
immediately following the term "employer" is restrictive and not
illustrative. In Adams, the Fourth Circuit affirmed the
Secretary of Labor's finding that the ERA's employee protection
provision protected only employees of NRC licensees and their
contractors, and not employees of DOE contractors. In addition,
the Fourth Circuit held that the term 'including" in relation to
the ERA's employee protection provisions was restrictive.
Id. at 776-77. Subsequently, Congress passed the 1992
Amendments to the ERA wherein contractors and subcontractors of
the Department of Energy are included under §5851(a)(2) of
that Act. In addition, Congress amended §5851(b) to state
that the Department of Energy, in addition to the NRC, must be
notified upon the filing of a whistleblower complaint. Although
it is clear that Congress added DOE contractors to
§5851(a)(2) in response to the Adam decision, it is not
clear that it also intended to broaden the definition of the term
'includes" in response to that case. In order to decide this
issue, I must look to the legislative history of the ERA.
H.R. 776[5] is the House bill that preceded the Energy
Policy Act of 1992, which amended the Energy Reorganization Act.
This bill proposed to amend §5851(a)(2) of the ERA as
follows:[6]
(2) For purposes of this section, the term "employer"
includes-
(A) a licensee of the Commission or of an agreement
State under section 274 of the Atomic Energy Act of 1954 (42
U.S.C. 2021);
(B) an applicant for a license from the Commission or
such an agreement State;
(C) a contractor or subcontractor of such a licensee
[PAGE 5]
or applicant;
(D) a contractor or subcontractor at a nuclear or
radioactive waste facility of the Department of Energy; and
(E) any other employer engaged in any activity
licensed under the Atomic Energy Act of 1954.
The legislative history of H.R. 776 indicates that these
changes were being made in order to broaden the coverage of the
ERA's whistleblower protection provisions. The legislative
history states, in relevant part:
This title broadens and deepens protection of nuclear
industry whistleblowers against harassment and other retaliatory
treatment . . . .
It also broadens the coverage of existing whistleblower
protection provisions to include a Nuclear Regulatory Commission
("NRC") licensee, an application for a Commission license, a
contractor or subcontractor of a Commission licensee or of an
applicant for a Commission license, the Department of Energy
('DOE'), a contractor or subcontractor at a Department of
Energy nuclear facility, or any other employer engaged in any
activity under the Energy Reorganization Act or the Atomic Energy
Act of 1954.... (Emphasis added)[7]
However, in the final amendment to the ERA, Congress
modified subsection (D) of H.R. 776, and dropped subsection (E)
altogether.[8] Respondent argues that by modifying this section
before final passage, Congress intentionally limited the
application of the ERA employee protection provision, and,
therefore, did not intend for DOE to be considered an "employer"
under the ERA. Complainant, however, argues that the legislative
history reveals that Congress did intend for all employers,
including DOE, to be prohibited from violating its whistleblower
protection provision.
The foregoing legislative history gives no indication
whether Congress meant to consider DOE an employer under the
ERA's whistleblower provision. In addition, the language of the
Atomic Energy Act is ambiguous as to whether DOE can be
considered a "Person" under the ERA.[9] As Congress has not
unequivocally waived the Government's sovereign immunity, it
would be improper to interpret §5851 of the ERA to include
DOE as an employer. Accordingly, Respondents' motion to dismiss
for lack of subject matter jurisdiction is granted. As this
motion has been resolved on the jurisdictional issue, the
timeliness of the hearing request does not need to be addressed.
[PAGE 6]
For the foregoing reasons, it is recommended that the
Secretary of Labor grant the Department of Energy's Motion to
Dismiss.
Alexander Karst
Administrative Law Judge
NOTICE: This Recommended Order and the administrative file in
this matter will be forwarded for review by the Secretary of
Labor to the Office of Administrative Appeals, U.S. Department of
Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, D.C. 20210. The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29.C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1]
The Administrative Law Judge in Emory stated that:
With respect to the parallel definitional sections in
the other statutes, the United States is expressly included in
the definitions of 'person' under the ERA.........See 42
U.S.C. §2014(l),(s) (includes any U.S. Government agency
other than the Nuclear Regulatory Commission).
[2]
Section 2014(s) of the Atomic Energy Act of 1954 states, in
relevant part, that:
(s) The term "person" means (1) any individual, corporation,
partnership, firm, association, trust, estate, public or private
institution, group, Government agency other than the
Commission....
[3]
The Energy Reorganization Act of 1974 abolished the Atomic Energy
Commission and established the Nuclear Regulatory Commission
(NRC), and the Energy Research and Development Administration,
which was later to become DOE. 42 U.S.C. §5814(a); Adams
v. Dok, 927 F.2d 771 (4th Cir. 1991), citing 42 U.S.C. §
5801(b). The NRC took over the Atomic Energy Commission's
function of licensing industrial and commercial uses of atomic
energy, and DOE took over its other functions, "including but not
limited to [its] military and production activities and its
general basic research activities." Id.
[4]
Section 585 1 (a)(2) of the ERA provides:
For purposes of this section the term "employer" includes-
(A) a licensee of the Commission or of an agreement State under
section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021);
(B) an applicant for a license from the Commission or such an
agreement State;
(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 (42 U. S. C. 22 1 0(d)), but such term
shall not include any contractor or subcontractor covered by
Executive Order No. 12344.
[5]
H.R. 776, 102nd Cong., 2d Sass. 1 3004 (1992).
[6]
Section 5951 previously stated that:
No employer, including a Commission licensee, and applicant for a
Commission license, or a contractor or a subcontractor of a
Commission licensee or applicant, may discharge any employee or
otherwise discriminate against any employee ....
[7]
H.R. REP. No.474, 102nd Cong., 2d Sess., pt. 8, at 78(1992),
reprinted in 1992 U.S.C.A.A.N. 1953, 2296-97.
[8]
See supra note 4
[9]
Whether United States Government agencies, other than DOE and
the NRC are "person[s]" and, therefore, "employers" under the ERA
is a question not before me.
