Moore v. U.S. Dept. of Energy, 1999-CAA-15 (ALJ Aug. 20, 1999)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

DATE: August 20, 1999

CASE NO.: 1999-CAA-15

IN THE MATTER OF

WALTER R. MOORE,
    Complainant

    v.

U.S. DEPARTMENT OF ENERGY,
    Respondent.

   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. On June 4, 1999, I issued an Order dismissing the case without prejudice, allowing Complainant to file an amended complaint. On July 10, 1999, Complainant filed a Second Amended Complaint. On August 6, 1999, Respondent filed a Motion to Dismiss.

   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.

STAA Jurisdiction

   For the same reasons expressed in my June 4, 1999 Order, I GRANT Respondent's Motion to Dismiss the Complaint under the STAA.

Sovereign Immunity/Exclusive Remedy Under CSRA

   For the same reasons expressed in my June 4, 1999 Order, 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 are 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 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).

   To state a claim upon which relief can be granted, the Complainant must allege (1) that he has engaged in protected activity; (2) that Respondent knew of such activity; (3) that he has been subjected to adverse action as a result of such protected activity and (4) that he is a covered employee. Taking the allegations in the Complaint as true and making all reasonable inferences in favor of the nonmoving party, I find that the Complainant has stated a claim. Accordingly, the Motion to Dismiss for Failure to State a Claim is DENIED.

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. Respondent's Motion to Dismiss For Failure To State A Claim is DENIED.

4. No later than August 27, 1999, Respondent shall serve and file an Answer, admitting or denying the allegations contained in the Complaint and setting forth any matter in defense or justification.

5. Discovery shall proceed by methods prescribed by 29 CFR §18.13 and within the scope set forth in 29 CFR §18.14.

   SO ORDERED.

       LARRY W. PRICE
       Administrative Law Judge