DOL Home > OALJ > Whistleblower > Rockefeller v. U.S. Dept. of Energy, 2003-ERA-10 (ALJ Mar. 28, 2003) |
Rockefeller v. U.S. Dept. of Energy, 2003-ERA-10 (ALJ Mar. 28, 2003)
U.S. Department of Labor | Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 | ![]() |
Issue Date: 28 March 2003
Case No: 2003-ERA-10
In the Matter of
TOD N. ROCKEFELLER,
Complainant,
v.
U.S. DEPARTMENT OF ENERGY
CARLSBAD FIELD OFFICE,
Respondent
On January 27, 2003, Complainant forwarded a complaint to OSHA alleging that the U.S. Department of Energy (DOE) refused to "consider rehiring him, knowing of his protected activity from his application, which is obviously in retaliation for his environmental whistleblower protected activity". The complaint sent to OSHA did not assert the violation of any statute over which it had jurisdiction. However, it appears that the complaint was orally modified to allege a violation under Section 211 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5881, and was treated as such by OSHA. On February 21, 2003, OSHA issued a determination that the complaint had no merit. The basis for the determination was that Complainant was ineligible to apply for the position because candidates eligible for the position were limited to current Carlsbad field office employees and Complainant was not a current employee.
On March 4, 2003, Complainant filed an appeal from the OSHA determination, which requested a hearing on the complaint and contained a "Motion for Remand for Proper Investigation" and a "Motion for Partial Summary Judgment". On March 11, 2003, the case was calendared for hearing in Carlsbad, New Mexico on April 15, 2003. Respondent filed "Respondent's Reply to Complainant's Request for Hearing and Motions for Remand for Proper Investigation and for Partial Summary Judgment and Respondent's Motion for Summary Decision and Motion to Enjoin Complainant From Filing Further Complaints on Matters Collaterally Estopped, Having Been Decided with Finality, on March 18, 2003.
The record clearly indicates that Complainant was not considered for the position of Physical Scientist, GS-1301-14, because candidates eligible for the position were limited to current Carlsbad field office employees and Complainant was not a current employee at the time of application. Restricting the group eligible for the position was not specific as to Complainant. All persons who previously worked at the Carlsbad field office and persons who never worked there were ineligible for the position.
Complainant seems to assert that he was unlawfully terminated from a position at the Carlsbad field office on December 10, 1997 for whistleblowing activities; that a proper OSHA investigation would have disclosed this fact and under these circumstances he should be considered eligible for the position. Respondent argues that "Complainant's claims of wrongful termination, blacklisting and discrimination have been dismissed in two separate suits before the Merit Systems Protection Board, one suit before the Office of Special Counsel, and five final decisions before the Department of Labor's Administrative Review Board. Based on the law of the case, Complainant cannot maintain that he was wrongfully terminated and has whistleblower status." (Footnote omitted).
"Res judicata" or "claim preclusion" refers to "the preclusive effect of a judgment in foreclosing relitigation of claims that were raised or should have been raised in earlier litigation." Frank v. United Airlines, Inc., 216 F.3d 845, 850 n.4 (9th Cir. 2000), cert. denied, 532 U.S. 914 (2001); United Parcel Service, Inc. v. California Public Utilities Commission, 77 F.3d 1178, 1185 and n.6 (9th Cir. 1996). "Collateral estoppel" or "issue preclusion" refers to "the preclusive effect of a judgment in foreclosing relitigation of issues that have been actually and necessarily decided in earlier litigation." Frank, 216 F.3d at 850 n.4; United Parcel Service, 77 F.3d at 1184-85 and n.6. When an administrative agency acts in a judicial capacity, claim and issue preclusion apply. Paynes v. Gulf States Utilities Company, ARB No. 98-045, ALJ No. 1993-ERA-47, HTML at 4 (ARB Aug. 31, 1999).
Claim preclusion requires (1) identical claims in two actions; (2) a final judgment on the merits in the first action; and (3) privity between the parties in the two actions. Frank, 216 F.3d at 850. Because the U.S. Department of Labor has exclusive jurisdiction over complaints filed under the Energy Reorganization Act, claim preclusion can only apply where the first action was also before the U.S. Department of Labor. See Paynes, supra at 3-4; Kosciuk v. Consumers Rockefeller v. U.S. Department of Energy, ARB No. 00-309, ALJ Nos. 1999-CAA-21/22, HTML at 2-3 (ARB May 30, 2001). Here, claim preclusion may be given to the five final decisions before the ARB.
"Under federal law, collateral estoppel applies only where it is established that (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding." Hydranautics v. Filmtec Corp., 204 F.3d 880, 885 (9th Cir. 2000) (citations omitted).
The two suits before the Merit Systems Protection Board and the suit before the Office of Special Counsel may be "prior proceedings" for the purpose of applying the doctrine of collateral estoppel. See Brock v. Roadway Express, Inc., 481 U.S. 252, 261 n.2 (1987); Paynes, supra at 3-4; Kosciuk, supra at 3 (all involving arbitrations and state proceedings); Combs v. Mash Transportation Services, ALJ No. 1986-STA-14, HTML at 1-2 (Sec'y July 24, 1992) (involving NLRB proceedings); see also United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22 (1966) (remarking that res judicata effect should be given to arbitrations and administrative proceedings). In the instant ERA complaint, the issue is whether Complainant was terminated or blacklisted for engaging in protected activity. See Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12, 21-22 (1st Cir. 1998); Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8, slip op. at 6-8 (ARB July 28, 1999), dismissed in part on other grounds sub nom. Roadway Express, Inc. v. Administrative Review Board, U.S. Department of Labor, 6 Fed.Appx. 297 (6th Cir. Mar. 7, 2001).
I find that under the five final ARB decisions, claim preclusion applies on the claims of wrongful termination and that collateral estoppel applies to the issues in the two suits before the Merit Systems Protective Board and the suit before the Office of Special Counsel.1
In light of the foregoing findings, ordering a remand for a further OSHA investigation would be an idle act. Complainant's motion for remand is denied.
Since it is established that Complainant was not wrongfully terminated on December 10, 1997, his assertion that he should be considered as a current employee of the Carlsbad field office must fail. Complainant was not considered for the position of Physical Scientist because he was not a current employee of the Carlsbad field office. There is not a scintilla of evidence in the record which would establish a prima facie case that he was not considered for the position because he was blacklisted for whistleblowing activity.
In light of the foregoing, I find that Complainant's Motion for Partial Summary Judgment should be denied. I also find that Respondent should be granted summary judgment and the case removed from the calendar and dismissed.
Finally, Respondent requests that I "enjoin the Complainant from any further Complaints based on issues decided with finality by the ARB without prior consent from the Office of the Chief Administrative Law Judge of the Department of Labor." In effect, Respondent is seeking an order holding Complainant to be a vexatious litigant. It has been held that "any such order is an extreme remedy, and should be used only in exigent circumstances." In re Oliver, 682 F.2d 443, 445 (3rd Cir. 1982); DeLong v. Hennessey, 912 F.2d 1144, 47 (9th Cir. 1990). Furthermore, to enter such an order requires giving Complainant notice and an opportunity to be heard before its entry. In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988).
The order entered herein is dispositive of this case and I see no need to unduly enlarge this matter by collateral proceedings on this issue. Respondent's motion for a vexatious litigant order is denied.
IT IS HEREBY ORDERED that:
1. The hearing in this case set for April 15-16, 2003 in Carlsbad, New Mexico is cancelled.
2. Complainant's Motion for Remand for Proper Investigation is denied.
3. Complainant's Motion for Partial Summary Judgment is denied.
4. Respondent's request that Complainant be enjoined from filing any future complaints based on issues decided with finality by the ARB without prior consent from the Office of the Chief Administrative Law Judge of the Department of Labor is denied.
5. Respondent's Motion for Summary Judgment is granted.
6. Case No. 2003-ERA-10 is dismissed.
DONALD B. JARVIS
Administrative Law Judge
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, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., NW, Washington, D.C. 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).
1See Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy; Westinghouse Electric Co. and Westinghouse Isolation Division, DOL ARB Case Nos. 99-002 (Rockefeller I), 99-067 (Rockefeller II), 99-068 (Rockefeller III), and 99-063 (Rockefeller IV), Oct. 31, 2000; Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy; and Westinghouse Electric Co., DOL ARB Case No. 00-039 (Rockefeller V), May 30, 2001; Rockefeller v. Abraham, Nos. 00-2480 and 01-2054 (10th Cir. Nov. 15, 2001) (appeal of New Mexico District Court D.C. No. 99-CIV-1059 PJK/KBM, Sept. 29, 2000; Rockefeller v. Dept. of Energy, Initial Decision of the Merit Systems Protection Board (MSPB Doc. No. DE-0752-98-0138-I-1 (Apr. 6, 1998); Complaint of Tod N. Rockefeller against the U.S. Dept. of Energy's Carlsbad Area Office, Decision of the U.S. Office of Special Counsel (OSC File No. MA-97-1639, Sept. 24, 1997); Rockefeller v. LABR, Dist/Ag docket; 99-002, 10th Cir. Case No. 00-9545 (appeal of consolidated ARB cases Rockefeller I-V), dismissed for lack of prosecution, Nov. 20, 2001.