DOL Home > OALJ > Whistleblower > Jackson v. Science Applications International Corp., 95-ERA-24 (ALJ Sept. 5, 1995) |
U.S. Department of Labor Office of Administrative Law Judges Heritage Plaza, Suite 530 111 Veterans Memorial Blvd. Metairie, LA 70005 (504) 589-6201 DATE: SEP 5 1995 CASE NO: 95-ERA-24 In the Matter of DONALD J. JACKSON, Complainant v. SCIENCE APPLICATIONS INTERNATIONAL CORPORATION DIVISION 012, SAVANNAH RIVER and THE UNITED STATES DEPARTMENT OF ENERGY Respondents RECOMMENDED ORDER OF DISMISSAL This is an employee protection action filed pursuant to the Whistleblower Protection Provision of the Energy Reorganization Act 42 U.S.C. § 5851, as amended (1992). Donald J. Jackson (herein "Complainant"), pro se, filed the original action on December 14, 1994. Complainant was employed from October 1991 through August 1994 at the Savannah River Site by Science Applications International Corporation (herein "SAIC"), which served as an independent contractor to the United States Department of Energy, Savannah River Operations Office (herein "SR!'). During this time, his employment with SAIC involved a variety of tasks in support of an SR security organization. For the purposes of this motion, it is uncontested that Complainant was employed as a Technical Staff member. SAIC eventually sought to obtain Access Authorization ("security clearance') for Complainant which would allow him to complete tasks necessary to his work for the
[PAGE 2] company. SAIC submitted an Access Authorization request to the Department of Energy (herein "DOE') which initiated a clearance evaluation process. Informafion obtained from this evaluation raised a substantial doubt to DOE as to Complainant's suitability for access authorization. Consequently, a hearing was held and DOE's review process ultimately resulted in a denial of SAIC's request for access authorization for Complainant in accordance with 10 C.F.R. Part 710. Specifically, Complainant alleges the following facts: (1) While employed at SAIC, he identified specific ethical concerns with respect to SAIC's business practices, specific incidences of waste, fraud, and abuse, and security and regulatory violations; (2) As a direct result of Complainant's expression of these concerns, he was subjected to harassment, intimidation, and discrimination by SAIC and the DOE; (3) Complainant was constructively discharged from his employment with SAIC, has been obstructed by SAIC and the DOE in seeking and obtaining employment within other divisions throughout SAIC, and support contracts with the DOE; (4) Complainant has been characterized as a threat to national security based on inconsistent, unsubstantiated, and unjustified allegations about his character and loyalty to the United States; (5) The denial of Complainant's Access Authorization is the culmination of a pattern of harassment and intimidation to which Complainant has been subjected since 1991, when he began identifying unethical business practices, waste, fraud, and abuse, and mismanagement to SAIC, the DOE, Congress, Department of Justice, and the media; (6) Complainant's DOE Access Authorization was revoked in direct reprisal for his whistleblowing activities. On May 9, 1995, DOE moved to dismiss the above referenced on the following grounds: 1. The Department of Labor lacks jurisdiction over DOE. Employee concerns relating to DOE's granting or withholding of security clearances are not "protected activity." 2. DOE is not now and never has been the Complainant's employer. DOE is not an employer pursuant to the ERA. 3. Complainant fads to allege a prima facie case as to DOE.. Complainant fails to allege that DOE took retaliatory action which materially affected his "terms, conditions, or privileges of employment." I find that sovereign immunity has not been waived under ERA
[PAGE 3] section 211, and thus, Respondent-DOE, an agency of the United States, is not subject to suit. For the following reasons, it is recommended that the Secretary of Labor grant DOE's Motion to Dismiss. Sovereign Immunity It is well established that the United States, as sovereign, is immune from suit except to the extent that it consents to be sued.[1] Unless expressly waived, sovereign immunity exists as the rule, not the exception.[2] Thus, a waiver of sovereign immunity Cannot be implied but must be unequivocally expressed.[3] Further, "[w]aivers of immunity must be "construed strictly in favor of the sovereign,' and not 'enlarge[d].... beyond what the language requires.'"[4] Thus, I examine the ERA's employee protection provision to decide whether Congress has "unequivocally" stated that claim cannot be brought against government agencies and, specifically, the Department of Energy. Subject Matter Jurisdiction DOE argues that the Department of Labor (herein "DOI:') does not have jurisdiction in this matter because the ERA's whistleblower provision does not include DOE as an "employer." The Secretary of Labor has never found DOL to have jurisdiction over a complaint by a federal employee under the ERA. Furthermore, the rationale used by the Secretary in finding jurisdiction under whistleblower provisions in other statutes does not apply under the ERA. The whistleblower protections afforded by the ERA and its implementing regulations found at 29 C.F.R. 24 are restricted to situations involving an employeremployee relationship. These regulations make it clear the purpose is "[t]he handling of complaints by employee.... of discriminatory action by employers [taken in retaliation for the employee's participation in protected activity]." 29 C.F.R. 24. 1(b).[5] Pursuant to "the principles of ejusdem generis [a rule of statutory construction], if the legislature intended the general word to be used in its unrestricted sense, no mention would have been made of the particular words." Adams v. Dole, 927 F.2d 771
[PAGE 4] at 776 (4th Cir. 1991). Congress did not intend for "employer to have its general meaning, because it limited its meaning by using "particular words." Pursuant to 42 U.S.C. § 5851, as amended, an employer is only one of four entities listed. Since DOE is not listed, it is not an employer for purposes of the ERA. There is ample support for the proposition that DOE is not an employer subject to 42 U.S.C. § 5851, the ERA. H.R. 776[6] is the House Bill that preceded the Energy Policy Act of 1992, which amended the Energy Reorganization Act. The conference version of H.R. 776[7] Which differed in many respects from earlier version of the bill,[7] passed both the House of Representatives and the Senate in early October 1992, and was enacted later that same month. This final version proscribed discrimination by "employer[s]" and "person[s]" for enumerated protected activity. The term "person" is not defined in section 211. The term "employer" expressly includes (1) licensees of the Nuclear Regulatory Commission or of an agreement State under designated section of the Atomic Energy Act of 1954; (2) applicants for a license from the Commission or an agreement State; (3) contractors or subcontractors of licensees or applicants; and (4) contractors or subcontractors of the Department of Energy indemnified under another section of the Atomic Energy Act. 42 U.S.C. § 5852(A)(2). Deleted from the definition is a fifth category of employer that appeared in earlier drafts, i.e., "any other employer engaged in any activity licensed under the Atomic Energy Act of 1954." An examination of the legislative history suggests that the deleted category may have included the DOE.[9] Thus, not only is the United States not named expressly in section 211 as subject to whistleblower proscriptions, the legislative development shows an agency of the United States to have been specifically excluded in the final analysis. DOE as an "Employer" As for Complainant's argument that section 211's term "person" should be defined under 42 U.S. C. § 2014 to mean "any .... Government agency," I note that the definitions set out in section 2014 apply expressly and exclusively to terms used in chapter 23 of Title 42 (Development and Control of Atomic Energy), rather than to terms used in chapter 73 (Development of Energy Sources) which contains ERA section 211. Similarly, the definition appearing at 42 U.S.C. § 6202(2) applies to the term's usage in chapter 77 (Energy Conservation) rather than in chapter
[PAGE 5] 73. Reference to the United States as a "person" for purposes of separate legislation is kmacient to constitute an unequivocal waiver of sovereign irmnunity under section 211. Furthermore, federal courts have interpreted this definition such that the employee protection provisions of the statute did not cover employees of DOE contractors which operate facilities that are owned by DOE and not licensed by the Nuclear Regulatory Comission.[10] In Adams v. Dole, the court struggled with the meaning of "includes" language followed by the "A, B and C" definition of an "employer." Although Congress subsequently changed the definition of "employer," the Adams decision is still instructive with respect to the statutory construction of this provision. In deciding whether DOE contractors were 42 U.S.C. § 5851 employers, the Court in Adams reasoned as follows: "[I]f DOE contractors were to be included, one would expect inclusion of a 'contractor or subcontractor of the Administrator or the DOE."' Relying upon the doctrine of Expresio Unius est Exclusio Alterius (the mention of one amounts to the exclusion of the other), the Court held that since DOE is not included in the current definition of "employer" under ERA, it follows that Congress' specific intent was to excluded DOE from coverage. The legislative history, supra, gives no indication of whether Congress meant to consider DOE an employer under the ERA's whistleblower provision. Additionally, the language of the Atomic Energy Act is ambiguous as to whether DOE can be considered a "person" under the ERA." 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, I recommend that DOE's Motion to Dismiss be granted by the Secretary of Labor for the foregoing reasons. RICHARD D. MILLS Administrative Law Judge Dated: SEP 5 1995 etairie, Louisiana RDM/pb NOTICE: This Recommended Order and the administrative file in this manner will be forwarded for review by die Secretary of
[PAGE 6] 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] United States v. Testan, 424 U.S. 392 (1976). [2] State v. Sparks, 978 F.2d 226 (5th Cir. 1992). [3' United States v. Mitchell, 445 U.S. 535 (1992). [4] U.S. Department of Energy v. Ohio, 112 S.Ct 1627, 1633 (1992), citing Eastern Transportation Co. v. United States, 272 U.S. 675, 686 (1927). [5] The Energy Reorganization Act, 42 U.S.C. § 5851(a)(2), defines employer as follows: For the 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 of such an agreement State; (c) a contractor or subcontractor of such licensee or applicant; and (d) a contractor or subcontractor of the Department of Energy that is indemnified by the Department under section 170d of the Atomic Energy Act of 1954 (42 U.S.C. 2210(d), but such term shall not include any contractor or subcontractor covered by Executive Order No. 12344 [6] HR. 776, 102d Cong., 2d Sen. § 3004 (1992). [7] Section 2902 of H.R. 776, Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat 2776 (Oct. 24, 1992), amended former ERA section 210.
[PAGE 7] [8] For example, amendments to former ERA section 210 were included in earlier versions of H.R. 776 reported by the House Committee on Energy and Commerce (H.R. Rep. No. 474, 102d Cong., 2d Sess., pt. 1 (March 30, 1992)) and the House Committee on interior and Insular Affairs (RR. Rep. No. 474, 102d Cong., 2d Sess., pt. 8 (May 5, 1992)). [9] See, e.g., H.R. Rep. No. 474, 102d Cong., 2d Sess., pt. 8, at 78 (1992), reprinted in 1992 U.S.C.A.A.N. 1953, 2296 (legislation "broadens the coverage of existing whistleblower protection provisions to include.... the Department of Energy"). [10] See, Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), and Bricker v. Rockwell Int'l Corp., 10 F.3d 598 9th Cir. 1993). [11] Whether United States Government agencies other than DOE, are "person[s]" and, therefore, "employers" under the ERA a so a question that is before this court.