# U.S. Department of Labor

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A0b81bd17467f050e

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

In the Matter of:

MICHAELS. PECK,
COMPLAINANT,

ARB CASE NO.

2017-0062

ALJ CASE NO.

2017-J The Secretary has delegated that authority to the Board.• The Board reviews
an ALJ's conclusions of law, including whether to deny a complaint on a motion to
dismiss, de novo.·;

Respondent's Motion to Dismiss at 1.
Order, Summary De~ismn as to Jurisdiction, Claim Dismissed (hereinafter, "Order")

at 4.
42 u.s.c, § 5851.
1

Secretary's Order No. 01-2019 (Delegation of Authority and Assignment of
Responsibility to the Administrative Ke view Board), 84 Fed. Reg. 13,072 (Apr. 3, 2019); Nee
29 C.F.R § 24.110.

5

Saporito v. Progress l!,'Mrg:y Serv. Co., Al:{B No. 2011-040, ALJ No. 2011-ERA-00006
(ARB Nov. 17, 2011).

3

DISCUSSION

Peck raises the following issues on appeal: (1) Whether the language of the
ERA dearly and unambiguously waives sovereif;n immunity for the Commission:
and (2) If the ARB determines that the statutory language is ambiguous, "is there
evidence to demonstrate Congress intended to waive sov!RC and the Energy Research and Development
Administration. In adopting the ERA, Congress did not repeal the provisions of
Chapter 23.
ln 1978. Congress amended the ERA to prohibit employers from
discriminating against employees who report violations of the ERA or the AEA or
who participate in any other action to carry out the purposes of those acts. It also
estab]iHhed processes and remedies to redr€SS such discrimination.

"

Initial llrief of Complainant m Support of Petition for Review (Initial ilrief) at 1.

'

Brief of R~spondent Nuclear R<>gulat.ory Commission in Opposition to Petition for

H.eviewat7-10.

4

Finally, in 2005, Congress added the NRC to the definition of "employer"
under the ERA but failed to identify the NRC or any other governmental entities as
a "person" from whom relief may be sought. The anti-retaliation provision of tho
ERA which prohibits certain employer conduct was codified at 42 U.S.C.
§ 5851(a)(l) and provides as follows:
(1) No employer may discharge any employee or
otherwise discriminate against any employee with
respect to his compensation, terms, conditions, or
privileges of employment because the employee (or any
person acting pursuant to a request of the employee) -

(A) notified his employer of an alleged violation of
this chapter or the Atomic Energy Ac;t of 1954 (42
U.S.C. § 2011 et seq.);
(B) refused to engage in any practice made
unlawful by this chapter or the Atomic Energy Act
of1954 [42 U.S.C. § 2011 et seq.J. if the employee
has identified the alleged illegality to the employer;
(C) testified before Congress or at any Federal ur
State proceeding regarding any provision (or
proposed provision) of this chapter or the Atomic
Energy Act of Ul54 [42 U.S.C. ~ 2011 et seq.];
(D) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this chapter or the Atomic
Energy Act of 1954, as amended [42 U.S.C. § 2011
et seq.], or a proceeding fur the administration or
enforcement of any rlclquirement imposed under
this chapter or the Atomic Energy Act of 1954. as
amended;
(E) testified or is about to testify in any such
proceeding or:

(F) assisted or participated or is about to assist or
participate in any manner in such a proceeding or
in any other manner in such a proceeding or in any
other action to carry out the purposes of this

5

chapter or the Atomic Energy Act of 1\)64, as
amended [42 U.S.C. § 2011 et seq.J."
For purposes of§ 5851, the term "employer" includes specified entities identified
below:
(,\) a licenseo 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;
(D) a contractor or subcontractor of the Department

of Energy that is indemnified by the Department
under section 170 d. of the Atomic EnNgy 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;
(El a contractor or subcontractor of the
Com mission;
(F) the Commission; and
(G) the Department of Energy. 9
We now shift our analysis. The remedy provision of the ERA establishes
specific processes for filing, investigating, and adjudicating employee complaints:
(b)

Complaint, filmg and notification

(1) Any employee who believes that he has been
discharged or otherwise discriminated against by any
person in violation of subsection (a) of thi,; section may.
within 180 days after such violation occurs, file (or
42 U.S.C. § t>/:h) 1(a)(l) (emphasrn added).

ld. § 585l(aJ(2).

6

have any person file on his hehalf) a complaint with
the Secretary ofLabor (in this section referred to as
the "Secretary'') alleging such discharge or
discrimination. Upon receipt of such a complaint, the
Secretary shall notify the person named in the

complaint of the filing of the complnint. the
Commission, and the Department of Energy.

(2)(A) Upon receipt of a complaint filed under
paragraph (1), the Secretary shall conduct an
investigation of the violation alleged in the complaint.
li\Titbin thirty days of the receipt of such complaint, the
Secretary shall complete such investigntion and shall
notify in writing the complainant (and any person
as,ting in his behalt) and the peraon alleged to have
committed such violation of the results of the
investigation conducted pursuant to this
subparagraph_. Within ninety days of the receipt of
such complaint the Secretary shall, unless the
proceeding on the complaint is terminated by the
Secretary on the basis of a settlement entered into by
the Secretary and the person a llege.s noted previously, the anti•
retaliation provision of the ERA prohibits any "employer," as defined therein, from
retaliating against any employee who engages in any of the protocted activities set
forth therein. But the remedy provision allows for remedies only against "persons,"
a term of art that generally cxclud1.Js the federal govcrnmcmt.2° The Supreme Court
has recently affirmed the "longstanding interpretive presumption" that the word
"person" excludes federal agcncie~.21
We note that "person" i~ defined in the Atomic Energy Act (AEA) to include
any "Government agency," and the argumtB
individuals."§ L Notably absent from the li3t of ·person[sj' ici the Federal Government.").
'"
42 U.S.C. § 2014(s) ("The intent of Congress in the dcfinitwns as given m this
section should be construed from the words or phrases used in the definitions. As used in
this chapter ... (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. any State or any political subdivibion of. or any political entity
w1thm a Stak, any foreign go-vernment or nation or any politirnl subdivision of any sud,
government or nation, or other entity; and (2) any legal successor, representative, agent, or
agency of the foregoing.'~.

'"
See Pas/or, slip o-p. at 19 ("Although Congress chose to establish new agencies
through the ERA and transfer to them fundions given to other bodies by the AEA, it did
not transfer or otherwise incorporate the definitions of the AEA This is particularly notable
because Congress did specifically incorporate into the ERA (and Chapter 7:l) eerlain oLher
references ... Congrnss has continued t.o treat the ARA and the ERA (and Chapters 23 and
73 thereby) us separate, by se-lectively amending each Act. The fact that Conb'l'eos chose to

10

raises an inference as to Congressional intent concerning tho ERA, that inference
merely creates a debatable point, at most, and falls short of the unequivocal
expression the Supreme Court requires to establish a waiv0r of federal sovereign
immunity.24
In Mull v. Salisbury Veterans Admin. }lled. Ctr., 25 tho Board rejected the
argument that the AEA definition of person applied to tho ERA.~6 The board also
concluded that it could not assume that because a respondent is an ·'employer"
under the anti-retaliation provision, it is also a "person·• under the remedy
provision. 27 The Board compared the whistleblower proteetion provision of the ERA
to the one contained in the Clean Air Act, which cleflrly indicates Congress' intent
to waive the federal government's sovereign immunity:
The lack of clarity in 42 U.S.C.A. § 5851 's provision that
an employee can bring a complaint against "any person,"
with "person" being undefined is underscored by the
precision with which Congress waived the Federal
adopt the whistleblower provi8ion of§ 5851 as an amendment cO the ERA, which contains
no definition of '·person." rather than as an amendment to the AEA, which contains a
definition, cannot be ignored.'').

"

It is equally log:ical and no less speculative fo infer that the lang:uage of the AEA is

different from that of the BRA in its definition of"person" a~ applied fo federal agencies
because Congress intended to convey a different meanm1 t.hress uses two different words in dose proxnnity, the use of
diffe,·ent words rndicatcd a difference in meaning.-").

II

Government's sovereign immunity under 42 U.S.C.A.
§ 7622 (Thomson/West 2003) of the Clean Air Act, which

prohibits discrimination on the basis of protected activity
under the Clean Air Act in employment decisions by the
Federal Government. In 42 U.S.C. § 7622. Congress
allows an employee to file a CAA complaint with OSHA
against "any person in violation of' the CAA
whistlcblower provisions. In 42 U.S.C. § 7602(c), '·person"
is defined to indude "any agency, department. or
in~trumentality of tho United States,'· thoreby

unequivocally expressing the intent to waive the federal
government's sovereign immunity. In contrast, 42

U.S.C.A. § 5851's lack of any language including the
federal government as an entity against which complaints
can be filed or otherwise waiving its sovereign immunity,
tends to suggest that Congress did not intend the federal
government's sovereign immunity to be waived.""
Our dissentmg colleague nevertheless raises a number of plausible
arguments concerning the intent of Congress in this regard, focusing primanly upon
tho 2005 am!RC employees for vio!nting the whistleblower
proteetion provisions of the ERA, § 5851. NRC sought to dismiss Bath's complaint
on the grounds that neither the NRC nor its employees arc "employerH" for purposes
of§ 5851, and the claim against the NRC is baffed by sovereign immunity, Citing
Pastor, the ARTI h<lid that Bath's daim against the KRC and its employees must fail
as Congress did not waive the federal government's immunity in§ 585L The ARB
wrote as follows:
The term "person'' carries special significance in the context of
sovereign immunity hBCllUSB it is presumed to not include the
federal goven1ment.,,. Congress' choice of thre word "pPrson" in
the liability section of§ 5851(b) was strong evidence that
Congress did not intend to mclude federal agencies among the
employers subject to liability under S 5851(b).

Bath, ARB No. 02-041, slip op. at 4 (citation omitted).
Congress amended§ 5851 in 2005 to add the NRC and the DOE to§ 5851's
existing definition of "omp\oyer.":;.; As amended.§ 5851 prohibits an employer, now

-~'
Puh. L. 109-58, § 629, 119 Stat. 594 (2005). The Complaimmt"s Brief to the ARB and
the Amicus Brief filed by the Government Accountability Project provide a persua.sive
history showing that the '2005 amendment lo the ERA was intended to overturn the ARffs
holding in Bath that. the NKC was not a covered entity. Cf. Lorillard v. Pons, 4:-!4 U.S. 575,
580-31 (1978) {Congress i6 pr,esumed fo be aware of administrative and judicial
interpretat.ions of a statuto when it amends or re-enacts a provision).
The ,,ue~l:ion a.s 1.0 wheether the D01' nm be a respondent also has a history. Tele.• u.
US. Dep't of /i,'nergy, No. 1994-ERA-0:.!2 (Sec'y Aug. 7, 1996) (observing that DOE was not
provided for in the final <lefmition uf "employer" in the ERA's whistlehlower provision but

3

expressly including the NRC and DOK from retaliating against employees of the
NRC or the DOE:
(a) Discriminati<Jn against employee
(1) No employer may discharge any employee or otherwise
discriminate against any employee with respeet to his

compensation, terms, conditions, or privileges of employment
because the employee (or any person acting pursuant to a
request of the employee)-- ... [engages in protected activity].
(2) For purposes of this section, the term '·employer" includes-(F) tho Commission; and

(G) the Department of Energy.

42 U.S.C. § 5851(a). Congress's intent to waive the NRC's immunity by including
the NRC as an employer subject to the prohibition, to me, is unmistakahlc. '!'he
!\"RC <1sks the AHl:l to ignore the express text of the 2005 amendment by applying
rules of statutory construetion that are misplaced or distinguishable from the facts
of this case.

3. Section 5851 uses "employer" and "person" interchangeably
Section 5851 defines "employer'' but does not define "person:•a1 The crux of
the question is whether "employer" and "pernon"' are used :interchangeably. The
majority focuses solely on § 5851's undefined use of "person" in the remedies section
and contends that Congress did not expressly waive KRC"s immunity for "persons'·
even if it extended the definition of "employerB·, to include the NRC. 1 would hold
that Congress intended for ·'employer" to include "person" when it amended the
definition of "employer" to include the NRC.
may have been mtcndctl. in ti.raft hmguage that did not make it to the final language

adopted by Cungress).
·"
The majority ~nd dissent in Mull v. Salisbury Vele ram; Adm in. }lied. Clinic, ARB
.r--;o. 09.107. ALJ No. 2008.ERA.008 (ARB Aug. '.11, 2011). di~agreed as to whether§ 5851
harrowed the Atomic Energy Act's definition of per don. The maJ<mty of the panel decided,
ovrr thr amicus brief of the Occupational Safety and Health Administration. that Congress
did not intend for § 51:!.5 1's whistleblower provision to mcorporatc AEA's definition of
'·person." codified at 42 U.S.C. § 2014(a).

4

The majority correctly idsmtifies the long-standing presumption that a
statute's use of ·'ponon" does not generally indude the federal government for
purposes of a waiver of sovereign immunity. Majority Opinion, supra page 9, ciling
Return Mail Inc. v, U.S. Postal Scrv., 139 S. Ct. 1853, 1861-62 and 1 U.S.C. § 1; see

also Vermont Agency of Nat. Res. ~'- United States ex rel. Stevens, 529 U.S. 765, 78081 (2000). I do not take issue with the majority's recitation of rules of construction
or its analysis of relevant cuse law on ambiguity and waiver of immunity. I
respectfully disagree with the application of that law to the matter at hand.
The presumption that "person" docs not include the Unitod States 1s not a
''hard and fm,t rule of exclusion." United States v. Cooper. ::!12 U.S. 600, 604-0ii
(1941). "[I]t may be disregarded only upon some affirmative showing of statutory
intent to the eontrnry,'" Stevens, 529 U.S. at 781. The 2005 amendments provide the
neccrn.sary intent to rebut the presumption. Viewing§ .5851's whistleblower
provision holistically, I would hold that Congress did use the terms "employer,. and
"person" interchangeably or more precisely that Congress's use of the term
"person"-undefined in § 5851---did not make the amended definition of ·'employer"
to include the NRC equivocal so as to preclude a finding of waiver.

a. Section 5851 '.~ form links "employer" and "person" together in the prohibition,
complaint, and remedies sections
To properly give credit to the 2005 amendment adding the NRC as an
employer for purposes of waiver, l examine the constntction of§ fi8fil's sections as
they interrelate to each other and explore§ 5851's 01igin for the connection between
"employer" and "person."'
Section fi8fil(a), the prohibition section, provides that '·[n]o employer may
discharge any employee or otherwise discriminate against any employee with
respect t.o his compensation, terms, conditions, or privileges of employment becauHe
the employee (or any person acting pursuant to a request oft.he employee) ...
[engages in protected activity]." The 2005 amendments include "the Commissiori"
and the "Department of Energy"' as employers.
Section 5851's •'complaint" and "remedies" sections link "employee'· to
·person"' in lhfl lariguage ·'[ajny employee who believes that he has been discharged
or otherwise discriminated against by any person in violation of subsection (a) may,.

5
.. file ... a complaint with the Secretary of Labor ... "oo If the Secretary finds a
violation, the Secretary shall "order the person who committed such violation to (i)
take affirmative action to abate the violation, and (ii) reinstate the complainant to
his former position together with the compensation (including back pay), terms,
condition~, and privileges of his employment, and the Secretary may order such
person to provide compensatory damages to the complainant."i!6
Section 5851 uses "employer" in the prohibition dection and "person" in the
remedies and complaint sections. The federal reporters arc full of rciforences to a
common rule of construction that "'where Congress includes particular language in
one section of a statute but omits it in another ... , it is generally presumed that
Congress acts intentionally and purposely in the dispani.te inclu8ion or exclusion."'
Russello v. United States, 404 U.S. 16, 23 (198a) (citation omitted).
The Russello presumption docs not always control the con~truction of a term
or provision. The Third Circuit in Port Authority Trans•Hudson, Corp. ~. Sec'.y, U.S.
Dep't of Labor, 776 F.3d 157 (3d Cir. 2015), found that the pre~urnption
in Russello "only applies when the two provi~ionR are sufficiently distinct that they
"

42 U.S.C. § 585l(b)(l) (emphasis added):
(b)(l) Any employee who believes that be has been discharg-od or
otherwise disc,~minated against by any person in vwlalwn of
subsection (a) may. within 180 days after Sllch vwlatwn occurs, fik (or
have any person file on his behaU) a complaint with the Secretary of
Labor (in this sectirm referred to as the "Secretary") alleging such
discharge or discrimination ..
42 U.S.C. § 585L(h)(2)(B):

(Bl Tf, in response to a complaint filed under paragraph (lJ, the
Secretary determines that a violation of dubsedion (a) has oL-curred,
the Secretary shall order the person who committed such violation to
(i) take affirmative action to abate the violation, and (ii) reinstate the
eomplainu.nt to his former posit10n fogethe,· with the eompensation
(including back pay), terms, conditions. and privileges of his
employment, and the Secretary may order such person to provide
compensatory damages to the complainant. If an order is issued under
lhis paragraph, the Secretary, at the request of the complainant shall
assess ag:umst the person against whom the order is issued a sum
equal to the aggregate amount of all cost~ and expenses (indudmg
attorneys' and expert witne~~ foe~) ron~onnb]y mcurred. ns d,,turmirwd
hy the Secretary, by the complainant for, or in connection with, the
bringing of the complaml llpon which the orde1· was issued.

6

do not-either explicitly or implicitly-incorporate language from the other
provision." Id. at 164. The Third Circuit did not find the Russello presumption
persuasive because them was no "hypothesis of careful draftsmanship,"' evidenced
in the "inexact drafting in [FRSA's 49 U.S.C.J § 20109." Id. at 165, citing City of
Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435-36
(2002) (notably not following the Russello presumption due to perceived drafting
inconsistencies).
This exception to or the inapplicability of the Russello presumption is
appropriate here. "As in all cases of statutory interpretation, our task is to interpret
the words of th[c] statut[c] in light of the purposes Congress sought to serve."
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979); see also Dolan
u. U.S. Postal Service, 546 U.S. 481,486 (2006) ("Interpretation of a word or phrase
depends upon reading the whole statutory text, considering the purpose and context
of the statute, and consulting any precedents or authorities that inform the
analysis"), The context of§ 5851 reinforces the interchangeability of the torms
"employer" and "person." Employees authorized to sue in the complaint section are
employed by employers prohibited in the prohibition section. If the Secretary
determines that a violation has occurred, the Secretary may order remedies agninst
the "person," including action to abate the violation, reinstatement, back pay, and
compensatory damages. The entity with power to discharge or affect the employee's
terms, conditions, and privileges of employment is an employer, The person with
the power to reinstate an employee is an employer. Employers arc expressly
entitled to an affirmative defense in§ 5851(b)(3)(D) because they are persons who
are subject to complaint and liability. Importantly, the prohibition applicable to
"employers" does not have a consequence for an tmtity that is not a "person."
Similarly, the complaint and remedies sections available to "any employee" against
"any person" are linked solely to the prohibition applicable to "employers."
Excessive reliance on rules of construction like the Russello pre~umption is
"unhelpful" in specific contexts, where they "run the risk of defeating the central
purpose of the statutc,." Cf. Kosak v. United States 465 U.S. 848,853, n.9 (1984).

b. k'RA's whistleblower provision is modeled after other enuironmental
whislleblower provisfons
Section 5851's use of "person" and "employer" is informed by its near
replication of the 1977 amendments to the Clean Air Act (CAA), Pub. L. Ko. 95-95,
91 Stat. 685 (Aug. 7, HJ77). That provision provides the following:

7

(a) Discharge or discrimination prohibited
.No employer may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or p.rivileg<os of employment
because the employee (or any person acting pursuant to a
rnqucst of the employee)-- ... [engages in protected activity]
(b) Complaint charging unla;yfi.il discharge or discrimination;
investigation: order
(1) Any employee who heliev<os that he has been discharged or
otherwise discriminated against hy any person in violation of

subsection (a) may. within thirty days after such violation
occurs, file (or have any person file on his behalf) a complaint
with the Secretary of Labor .
(2)(A) ...
(B) If, in response to a complaint filed under paragraph (1), the

Secretary determines that a violation of subsection (a) has
occurred, the Secretary shall order the person who committed
such violation to (i) take affirmative action to abate the
violation, and (ii) reinstate the complainant to his former
position together with the compensation (including back pay),
terms, conditions, and privileges of his employment, nnd the
Secretary may order such person to provide compensatory
damages to the complainant,
42 U,S.C. § 7622 (1977). In the 1977 CAA whistleblower provision, Congress did not
define '·employer'' but defined "person" in another section of the CAA to include the
federal government.
(e) The term "person" includes an individual, corporation,
partnership, association, State, municipality, political
subdivision of a State, and any agency, department, or
instrumentality of the United States and any officer, agent, or
employee thereof.

8
42 U.S.C. § 7602(e) (1977). As with§ 5851, "person" and "employer" are used
interchangeably in the CAA's overall structure, as limited by the definition of
"person."
The ARB has concluded that the CAA contains a clear waiver of federal
sovereign immunity for the remedies available to a successful complainant based on
CAA's definition of "person" to include the federal government. Erickson v. U.S.
Enutl. Prot. Agency, ARH Nos. 03-002, et staq. ALJ Kos. 1999-CAA-002, et seq. (ARB
May 31, 2006). In 2005, the Office of Legal Counsel (OLC) recognized that the CAA
and Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971, defined "person" in a
manner that included the federal government, but the Federal Water Pollution
Control Act, .'33 U.S.C. § 1367 (FWCPA, Clean Water Aet, or CWA), omitted the
clear language including the federal government in its definition of "person."~7
These references to other environmental provisions are not included to argue
that Congress intended for§ 5851 to adopt their respective definitions but to
exemplify the interrelationship between "person," "employer;' and ''employee." In
these environmental whistleblower statutes, Congress did not intend "employer"
and "person" to refer to separate entities. Congress borrowed the language of one
statute as model for the other.38 The absence of a definition of"employer'' has not
created a sovereign immunity problem or "equivocalness" whon the statute clearly
defines "person" to include the federal government. Here, we simply face the
converse.

29 Op. 0.L.C. 171 (Sept. 23. 2005). The 1976 SWDA's anti-retaliation provision
provides the following:

17

No person shall fire, or in any other way discriminate at;ainst. or
cause to be fired or discriminated agarnst. any employee or any
authorized reprcsentutive of employees hy reason of the fact that such
employee or representative has filed, instituted, or caused to be filed
or instituted any proceodmg under this Act or under any applicahle
implementation plan, or has testified or is about to testify in any
proceeding resulting from the administration or enforcement of the
wovisions of this Act or of any applicable implementation plun.
42 U.S.C. § 6971. SWDA's definition of "person'· was amended to include federal
government. Id. at§ 6903{lfi).
"'
S. Hep. 95-848, 95th Cong., 2d Sess. (M:ay 15, 1978), available at 1978 WL 8524; see
also Mackowwk v. Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1163 (9th Cir. l!l84).

9

c. Environmental whistlebluwer case law has recogniz<'d the interchanf;eability

of ''employer" and ''person" in other contexts
Section 5851 's precedent recognizes the interchangeability of ''person" and
"employer•· outside of the sovereign immunity context. Billings v. OFCCI', No Hl91ERA-035, slip op. at 2 (Sec'y Sept. 24, 1991) ("It is wflll established that a necessary
element of a valid ERA claim under Section 5851 is that the party charged with
discrimination be an employer subject to the Act''); see also DeFord v. Sec'y of Labor,
700 F.2d 281, 286 (6th Cir. HJ8.1).
Similar conclusions as to the interchangeability of "omployer'' and "pcrHon"
but th,1 importance of ·'cmploycir" in qualif'ying th,i reach of the provision have been
discussed in CAA case law. In Varnadore u. Oak Rid{{e Nat"/ Lab., Nos. 1882-CAA002, -005, 1993-CAA-001 (ARB June 14, 1986), the ARB observed that the Secl'etary
of Labor (before the creation of the ARB) had held that while the CAA's definition of
"person" includes "individuals," individuals are not subject to suit under the
environmental whistleblower provisions of the Toxic Substances Control Act and
the CAA, which, like§ 5851, prohibit "employers" from retaliating against
employoes who engage in protected activity. "[P]ersons who are not 'employarci'
within tho meaning given that word in the ERA may not be held liable for
whistleblower violations." Slip op. at ;J4.a5 (denying claim againM the Secretary of
Energy), citing Stevenson u. Nat'l Aeronautical & Space Admin., No. 1994-TSC-005,
slip op. at 3-5 (Sec'y July 3, 1Hfl5) (subordinating the CA,\'s definition of 'person,"
which includes "individuals," because ·'ft]he plain language of these employee
protection provisions suggests that they were intended to apply to persons who are
employers. That classification does not include the employees named here as
respondents. Any other construction would require a clearer statement of intent
than appears in the statutes at issue.").

d. Construing "person" independent of "employer" renders§ 5851 meaningles8 fur
specified employers
The :-JRC's strained reading segregating "employer" from "person" in§
5851(a) would place employees of named employers without a remedy against their
retaliating employers even though the complaint and remedies sections give "any
employee" a remedy against '·any person•· discharging or discriminating with
respect to thou terms, conditions. and privileges of employment in violation of the

10

prohibition section. 09 The NRC's implausible construction would emasculate a
pivotal definitional section and Congress's expressed intent as to the applicability of
the prohibition. United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("'The
cardinal principle of statutory construction is to save and not to destroy.' ... Courts
must 'give effect, if possible, to every clause and word of a statute .. ,"'). The NKC
fails to provide any plausible construction for construing the terms independently.
Corely v. United State.~, 556 U.S. 303,314 (2009) (a court's construction must be

read so that each of the sections will be operative and not superfluous).
In Lane v. Pena, 518 U.S. 187 (1996), U.S. Dep't of Energy'-'· Ohio, 503 U.S.
607 (1992), and United States u. Nordic Village. 503 U.S. 30 (1992), the Supreme
Court examined and compared multiple statutory sections to conclude that
Congress did not unequivocally waive immunity for the requested relief in the
challenged section because another section (or a definition) including waiver fur the
United States or providing for monetary or punitive damages could be plausibly
read as limited to that one area and not include the challenged section. Accordingly,
the case for waiver in the challenged section was equivocal with respect to the
requested relief, and the interpretation of that section without waiver was plausible
because the pieces of the statute fit or fit even better without waiver.
ln § 5851's whistleblowcr provision, there is no such logical construction
separating "employer" and '·person." There is not, for example, a separate remedies
section that applies to named •'employers" who are not ·'persons" to explain
Congress's nammg "the Commission" and "the Department of Energy" as
In Lane. 518 U.S. at 193, the Supreme Court distinguished the 1·elationship between
§ 504(a) and§ 505(a)(2) from that of§ 501 and§ 505(a)(l). Conduding that there was no
waiver under §505(a)(2), the Court sharply distinguished "the precision with which
Congress has waived the Fed,mtl Government's sovereign immunity from compensatory
damages" in the remedy section connected with Section 50 1 of the Rehabilitation ad, 29
U.S.C. § 791, prohibiting disability discrimination in federal government. Section 505(a)(l),
the remedy section associated with Section 501, provides the following:
39

The remedies, procedures, and righl-s sel forth in section 717 of the Civil
Rights Act of 1964 [which allows monetary damages] ... shall be available,
with respect to any complaint unde,· section 501 of this Act, to any employee
or applicant for employment aggrieved by the final disposition of such
complaint. or by the failure to take final action on such complainl.
29 U.S.C. § 794a(a)(1) (emphasis added). I would bold that the ERA's relationship bet.ween
··omployor" and "person" 1·esembles this relat10nsh1p and not that between § 504(a) and§
505(a)(Z) where the Court in Lane found no waiver.

11
"employers." \¥hen Congress amended "employer" to include the NRC, it must have
intended it to be both an "employer" and "person" throughout the prohibit10n,
complaint, and remedies sections. Analogously, when Congress defined "person" in
the CAA, it intended the term "employer" to be applicable to those persons even

though "employer" is not defined.
I would hold thnt § 5851 's construction of "person" and "employer" in this
matter is similar to the Court's construction of the term ''tax," "taxpayer," and "any
civil action" in United States u. Williams, 514 U.S. 527 (1995). Williams was not a
taxpayer by some definitions, but the Supreme Court concluded that she was
authorized to sue under 28 U.S.C. § 1346(a)(l) because the tax affected her. Not
allowing Williams to sue under § 1346(a) would have left her without a viable
remedy to reclaim the money she had spent satisfying tho lien. This fact reinforced
tho Court's conclusion that this was not Congress's intent. Justice Scalia,
concurring in Williams, stated that the rule of strictly construing waivers '·docs not,
however, require explicit waivers to be given a meaning that 1s implausible." 514
U.S. at 541. '"l'he exemption of the sovereign from suit involves hardship enough
where consent has been withheld. We are not to add to its rigor by refinement of
construction where consent has been announced." Id., quoting Anderson v. Hayes
Constr. Co., 24:-1 N.Y. 140,147,153 N.E. 28, 29--30 (1926) (Cardozo. J.).

Summary

I do not find equivocalness in§ 5851's use of•'employer'' and "person."10 I
would give effect to Congress's amendment stating precisely what the text of the
amendment states. Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992)
("[C]ourts must presume that a legislature says in a statute what it means and
means in a statute what it says there"). When Congnrns amended§ 5851 in 2005 to
add the NRC as an "employer," it intended that the NRC also be a person subject to
the complaint and remedies provisions.

'"
Section 5851's interconnected use of "employer"' and "person'" is not an instance
where Congress has used "person" in a sentence, clause, or section incon.sistently or there is
a ~om pc ting dcfinit10n of "person"' such that a generic, undefined use of "person" in the
statute cannot borrow another reference or context where waiver is express. U.S. lJep't of
Energy v. Ohio, ii03 U.S. 607. 617-1 9 (1992). Here, the J,:1-1.A's whistleblower provision
contains a simple prolnbilion and complaint and remedies sections intimately connected
with the prohibition.

12
I recognize the Supreme Court's case law strictly construing waivers.
McMahon u. United States, 342 U.S. 25, 27 (1951). The Supreme Court has aho

stated that strict construction is neither hostile nor hyper-technical construction.
"[Courts] should not take it upon [them]selves to extend the waiver beyond that
which Congress intended. Neither, however, should we assume the authority to
narrow the waiver that Congress intended.'' Smith v. United Stutes, 507 U.S. 197,
203 (1993). In amilyzing the issue of immunity, the Supreme Court does not rnquire

that Congress use magic words to effect waiver. To the ('ontrary. the Court has
observed that the ,;overeign immunity canon ''is a tool for interpreting the law' and
that it does not 'displac[e] the other traditional tools of statutory construction."'
Richlin Security Seru. Co. v. Chertoff, 553 U.S. 571. 589 (2008). "What we thus
require is that th<c scope of Congress' waiver be dearly disc<crnable from the
statutory text in light of traditional interpretive tools. If it is not, then we take the
interpretation most favorable to the Government." Fed. Aviation Adm in. v. Cooper,
566 U.S. 284,291 (2012). Tribunals are not "self-constituted guardian[sj of the
Treasury import[ing] immunity back into a statute designed to limit it.'' Indian
Towing Co. v. United States, 350 U.S. 61, 69 (1955).
Respectfully, I dissent from the majority's opinion. I would hold that
Congress, in the 2005 amendments, expressly waived NRC's immunity when iL
included NRC as an "employer" prohibited from retaliation in violation of§ 5851. 41
The ERA's generic use of "person," without definition and in light of the specificity
of "employer" in the prohibition section, does not create equivocalness to preclude a
finding of waiver.

"
The majority cites to pending legislation seeking to "clarify" § 585l's dcfimtion of
"person" for the point that the legislation without a definition of"person" ia ambiguous.
Majority Opinion, supra page 12 n.32. The pending- legislation is equally indicative of
judicial construction failing tu g:iv~ plain lang1.rngn its infondctl effect. At some point, "btr1ct
construction" is less ·'construction" of legislation and more akin to the imposition of a
limitation on Congress's power.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A0b81bd17467f050e. Public record. Not legal advice.