U.S. Department of Labor

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Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

MICHAEL S. PECK,

COMPLAINANT,

NUCLEAR REGULATORY

COMMISSION,

ARB CASE NO.

2017-0062

ALJ CASE NO.

2017-ERA-00005

DATE: December 19, 2019

RESPONDENT.

Appearances:

For the Complainant:

Billie Pirner Garde, Esq., Clifford & Garde, LLP, Washington,

District of Columbia

For the Respondent:

C. Jack McKimm, Esq., U.S. Nuclear Regulatory Commission,

Rockville, Maryland

Before: William T. Barto, Chief Administrative Appeals Judge; James A.

Haynes, Thomas H. Burrell, and Heather C. Leslie, Administrative Appeals

Judges

FINAL DECISION AND ORDER

HAYNES, Administrative Appeals Judge. This case arises under the

whistleblower protection provision of the Energy Reorganization Act of 1974 (ERA),

as amended, 42 U.S.C. § 5851 (2005), and as implemented by regulations codified at

29 C.F.R. Part 24 (2018). On February 16, 2017, Dr. Michael S. Peck filed a

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PAGE 1

complaint with the Occupational Safety and Health Administration (OSHA)

alleging that his employer, the U.S. Nuclear Regulatory Commission (NRC or

Commission), violated the ERA when it failed to select him for a vacant Senior

Resident Inspector position at the Callaway Nuclear Plant. OSHA denied the

complaint and Peck requested a hearing before an Administrative Law Judge (ALJ).

Prior to any hearing, NRC filed a Motion to Dismiss Peck’s complaint because

“under longstanding principles of sovereign immunity and precedential case law of

the Department of Labor Administrative Review Board, the Office of Administrative

Law Judges lacks subject-matter jurisdiction over this action brought under [the

ERA].” 1 On July 13, 2017, the ALJ issued an Order in which he concluded that he

did not have jurisdiction in this case because although “[t]he NRC is an

instrumentality of the U.S. Government which through the laws of the United

States permits certain actions under a waiver of sovereign immunity … [t]he United

States has not waived sovereign immunity for ERA whistleblower actions.” 2 Peck

appealed the Order to the Administrative Review Board (ARB or Board). Due to the

significance of the issue to be considered, the Chief Administrative Appeals Judge

designated this case for en banc consideration. For the following reasons we affirm

the ALJ.

JURISDICTION AND STANDARD OF REVIEW

Congress has authorized the Secretary of Labor to issue final agency

decisions with respect to claims of discrimination and retaliation filed under the

ERA. 3 The Secretary has delegated that authority to the Board. 4 The Board reviews

an ALJ’s conclusions of law, including whether to deny a complaint on a motion to

dismiss, de novo. 5

Respondent’s Motion to Dismiss at 1.

Order, Summary Decision as to Jurisdiction, Claim Dismissed (hereinafter, “Order”)

at 4.

42 U.S.C. § 5851.

Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (Apr. 3, 2019); see

29 C.F.R. § 24.110.

Saporito v. Progress Energy Serv. Co., ARB No. 2011-040, ALJ No. 2011-ERA-00006

(ARB Nov. 17, 2011).

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DISCUSSION

Peck raises the following issues on appeal: (1) Whether the language of the

ERA clearly and unambiguously waives sovereign 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 sovereign immunity?” 6 The

NRC maintains its argument that the United States has not waived sovereign

immunity for ERA whistleblower claims. 7 We agree with the NRC and will deny

Peck’s complaint because the whistleblower protection provision of the ERA, as

amended, does not contain an unequivocal expression of an intent to waive

sovereign immunity.

1. Statutory Background.

We begin with a review of the text of the relevant laws. Congress first

regulated the creation and use of nuclear energy in the Atomic Energy Act (AEA) of

1946, which established the Atomic Energy Commission (AEC). It was amended by

the AEA of 1954, which allowed private construction, ownership, and operation of

commercial nuclear power reactors under AEC supervision. The provisions of the

AEA of 1954 were codified in Chapter 23 of Title 42 of the United States Code.

Congress passed the ERA in 1974 as part of its continuing effort to regulate

nuclear energy. The ERA’s provisions were placed in Chapter 73, a new chapter of

Title 42 of the United States Code. The ERA abolished the AEC and created two

new entities to take its place – the NRC and the Energy Research and Development

Administration. In adopting the ERA, Congress did not repeal the provisions of

Chapter 23.

In 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

established processes and remedies to redress such discrimination.

Initial Brief of Complainant in Support of Petition for Review (Initial Brief) at 1.

Brief of Respondent Nuclear Regulatory Commission in Opposition to Petition for

Review at 7-10.

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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 the

ERA which prohibits certain employer conduct was codified at 42 U.S.C.

§ 5851(a)(1) 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 Act 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

of 1954 [42 U.S.C. § 2011 et seq.], if the employee

has identified the alleged illegality to the employer;

State proceeding regarding any provision (or

proposed provision) of this chapter or the Atomic

Energy Act of 1954 [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 for the administration or

enforcement of any requirement 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

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chapter or the Atomic Energy Act of 1954, as

amended [42 U.S.C. § 2011 et seq.]. 8

For purposes of § 5851, the term “employer” includes specified entities identified

below:

(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;

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 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;

(E) a contractor or subcontractor of the

Commission;

(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, filing 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 this section may,

42 U.S.C. § 5851(a)(1) (emphasis added).

Id. § 5851(a)(2).

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within 180 days after such violation occurs, file (or

have any person file on his behalf) a complaint with

the Secretary of Labor (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 complaint, 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.

Within thirty days of the receipt of such complaint, the

Secretary shall complete such investigation and shall

notify in writing the complainant (and any person

acting in his behalf) and the person 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 alleged to have

committed such violation, issue an order either

providing the relief prescribed by subparagraph (B) or

denying the complaint. An order of the Secretary shall

be made on the record after notice and opportunity for

public hearing. Upon the conclusion of such hearing

and the issuance of a recommended decision that the

complaint has merit, the Secretary shall issue a

preliminary order providing the relief prescribed in

subparagraph (B), but may not order compensatory

damages pending a final order. The Secretary may not

enter into a settlement terminating a proceeding on a

complaint without the participation and consent of the

complainant. 10

We reach the end of our statutory review with the passage below concerning the

application of penalties under the ERA for violations of the Act. If the Secretary (or

Id. §§ 5851(b)(1) and (b)(2)(A) (emphasis added).

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his delegates) concludes that a violation has occurred, remedies may be ordered

against the person who committed the violation:

(B)

If, in response to a complaint . . . the Secretary

determines that a violation of subsection (a) . . . has

occurred, the Secretary shall order the person who

committed the violation to (i) take affirmative action to

abate the violation, and (ii) reinstate the complainant

to his former position together with . . . compensation

. . . and the Secretary may order such person to provide

compensatory damages to the complainant. If an order

is issued under this paragraph, the Secretary, at the

request of the complainant shall assess against the

person against whom the order is issued a sum equal

to the aggregate amount of all costs and expenses

(including attorneys’ and expert witness fees)

reasonably incurred, as determined by the Secretary,

by the complainant for, or in connection with, the

bringing of the complaint upon which the order was

issued. 11

In sum, the text of the ERA presents a semantic challenge to the reader: the

anti-retaliation provision of the Act constrains certain “employer” conduct toward

employees, while the remedy provision allows an employee to obtain relief from

discriminatory conduct by “any person.” And while “employer” is defined by statute

to include the U.S. Department of Labor and the NRC, there is no similar definition

or any statutory cross-reference for the word “person” as used in the remedy

provision. The relationship between the words “employer” and “person” is, at best,

ambiguous 12 and requires the use of traditional interpretive tools to clarify the

relationship, if any, between the two words and the intent of the legislature in using

dissimilar words in related parts of the ERA. As will be seen, this analysis will be

critical to our resolution of the question as to whether Congress has waived the

sovereign immunity of the federal government in connection with whistleblower

complaints under the ERA.

Id. § 5851(b)(2)(B) (emphasis added).

For example, are the terms synonymous, as argued by Respondent and our

dissenting colleague, or does the use of different words in related parts of a statute evince

different meanings for each?

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2. Sovereign Immunity.

Sovereign immunity shields the federal government and its agencies from

suit absent a waiver by the government. 13 The extent of the federal government’s

waiver of sovereign immunity and the types of damages allowable are authorized

and defined by the language of the waiver, and that language is to be narrowly

construed. 14 Moreover, the waiver must be established by the statute itself. 15

Waivers of sovereign immunity must be “unequivocally expressed” 16 and are strictly

construed in favor of the United States. 17 The immunity applies in administrative

adjudications as well as adjudications in the federal courts. 18

To determine if sovereign immunity has been waived, we must focus on the

statutory text that relates to liability. 19 And for Peck’s case to proceed, we must

Dept. of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999).

See, e.g., Lane v. Pena, 518 U.S. 187, 192, 200 (1996) (citing United States v.

Williams, 514 U.S. 527, 531 (1995) (“Although neither of these conceivable readings of

§ 1003(a)(2) [of the Rehabilitation Act of 1973] is entirely satisfactory, their existence points

up a fact fatal to Lane’s argument: Section 1003(a) is not so free from ambiguity that we

can comfortably conclude, based thereon, that Congress intended to subject the Federal

Government to awards of monetary damages for violations of § 504(a) of the Act. Given the

care with which Congress responded to our decision in Atascadero by crafting an

unambiguous waiver of the States’ Eleventh Amendment immunity in § 1003, it would be

ironic indeed to conclude that that same provision “unequivocally” establishes a waiver of

the Federal Government’s sovereign immunity against monetary damages awards by

means of an admittedly ambiguous reference to “public ... entit[ies]” in the remedies

provision attached to the unambiguous waiver of the States’ sovereign immunity.”).

Id. (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 37 (1992) (“A statute’s

legislative history cannot supply a waiver that does not appear clearly in any statutory

text: ‘the “unequivocal expression” of elimination of sovereign immunity that we insist

upon is an expression in statutory text.’”).

Nordic Vill., Inc., 503 U.S. at 33-34; United States v. Mitchell, 445 U.S. 535, 538

(1980) (citing United States v. King, 395 U. S. 1 (1969)).

Ardestani v. Immigration and Naturalization Serv., 502 U.S. 129, 137 (1991).

Fed. Mar. Comm’n v. South Carolina State Ports Auth., 535 U.S. 743, 761 (2002)

See, e.g., Bath v. U.S. Nuclear Regulatory Comm’n, ARB No. 2002-0041, ALJ No.

2001-ERA-00041 (ARB Sept. 29, 2003), slip op. at 4, citing Pastor v. Dep’t of Veterans

Affairs, ARB No. 99-071, ALJ No. 1999-ERA-011 (ARB May 30, 2003), slip op. at 6 (“To

sustain a claim that the Government is liable for awards of monetary damages, the waiver

of sovereign immunity must extend unambiguously to such monetary claims.”). Peck

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determine whether Congress has waived the federal government’s (and specifically,

the NRC’s) sovereign immunity under the ERA. As noted previously, the antiretaliation provision of the ERA prohibits any “employer,” as defined therein, from

retaliating against any employee who engages in any of the protected activities set

forth therein. But the remedy provision allows for remedies only against “persons,”

a term of art that generally excludes the federal government. 20 The Supreme Court

has recently affirmed the “longstanding interpretive presumption” that the word

“person” excludes federal agencies. 21

We note that “person” is defined in the Atomic Energy Act (AEA) to include

any “Government agency,” and the argument can be made that the definition should

extend to the ERA. However, the AEA definition of “person” is, by the terms of the

applicable definitions section, expressly limited to that chapter of the AEA. 22 The

limiting language noted in the AEA means that in this case the term “person” must

be construed as it is used in the ERA and as part of a discrete legal regime, distinct

from the AEA. 23 But even if we were to conclude that AEA definition of “person”

asserts that he “seeks, essentially, equitable damages of transfer into the position he

applied for,” but he also seeks monetary damages in the form of “wages, bonuses and other

job-related benefits associated with the position he would have been eligible to receive” if he

had been selected for the vacant position. See Initial Brief at 4.

E.g., 1 U.S.C. § 1 (omitting reference to governmental entities in omnibus definition

of “person”).

Return Mail, Inc. v. U.S. Postal Service, 587 U.S. ___, 139 S.Ct. 1853, 1862 (2019)

(“The Dictionary Act has since 1947 provided the definition of ‘person’ that courts use ‘[i]n

determining the meaning of any Act of Congress, unless the context indicates otherwise.’ 1

U.S.C. § 1 … The Act provides that the word “‘person’ ... include[s] corporations, companies,

associations, firms, partnerships, societies, and joint stock companies, as well as

individuals.” § 1. Notably absent from the list of ‘person[s]’ is the Federal Government.”).

42 U.S.C. § 2014(s) (“The intent of Congress in the definitions as given in 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 subdivision of, or any political entity

within a State, any foreign government or nation or any political subdivision of any such

government or nation, or other entity; and (2) any legal successor, representative, agent, or

agency of the foregoing.”).

See Pastor, slip op. at 19 (“Although Congress chose to establish new agencies

through the ERA and transfer to them functions 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 73) certain other

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raises an inference as to Congressional intent concerning the ERA, that inference

merely creates a debatable point, at most, and falls short of the unequivocal

expression the Supreme Court requires to establish a waiver of federal sovereign

immunity. 24

In Mull v. Salisbury Veterans Admin. Med. Ctr., 25 the Board rejected the

argument that the AEA definition of person applied to the ERA. 26 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 protection provision of the ERA

to the one contained in the Clean Air Act, which clearly indicates Congress’ intent

to waive the federal government’s sovereign immunity:

references … Congress has continued to treat the AEA and the ERA (and Chapters 23 and

73 thereby) as separate, by selectively amending each Act. The fact that Congress chose to

adopt the whistleblower provision of § 5851 as an amendment to 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 logical and no less speculative to infer that the language of the AEA is

different from that of the ERA in its definition of “person” as applied to federal agencies

because Congress intended to convey a different meaning. The AEA language may be read

to show that Congress knew how to waive sovereign immunity for the AEA and

intentionally declined to do so in the ERA. There is no explicit justification for this, not

illogical, interpretation and we decline to adopt it in preference to other equally unjustified

theories.

ARB No. 2009-0107, ALJ No. 2008-ERA-00008 (ARB Aug. 31, 2011).

Mull, slip op. at 10 (“The Assistant Secretary asks that we look outside of the ERA’s

language, to the AEA’s definition of “person” to find that the federal government has

waived its immunity under the ERA. However, we can find no language in the ERA that

expressly requires or directs us to look outside of the act. While the Supreme Court has

“never required that Congress make its clear statement in a single section or in statutory

provisions enacted at the same time,” Kimel v. Florida, 528 U.S. 62, 76 (2000), the Court

has required that Congress make a clear statement in the statutory text, even if simply by

including in the statute, language that incorporates provisions from other statutes. Lane,

518 U.S. 187, 192 (1996); Kimel, 528 U.S. at 74-77.”).

Id., slip op. at 9 (citing Pastor, slip op at 17-18) (“Based on the principles of statutory

construction ‘that to the extent possible all Congressional provisions are to be given

meaning, and that when Congress uses two different words in close proximity, the use of

different words indicates a difference in meaning.’”).

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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

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

whistleblower provisions. In 42 U.S.C. § 7602(e), “person”

is defined to include “any agency, department, or

instrumentality of the United States,” thereby

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. 28

Our dissenting colleague nevertheless raises a number of plausible

arguments concerning the intent of Congress in this regard, focusing primarily upon

the 2005 amendment to the ERA that subjected the NRC to the Act’s antiretaliation provisions as circumstantial evidence of a further intent to allow suit

against the NRC if it violated those provisions. 29 But more than plausibility is

required by the law. 30 As we have previously noted, “[w]hen one reading of a

statutory text could plausibly support a finding of waiver, but another reading that

Id., slip op. at 10.

On this point we disagree. The addition of the NRC as a covered employer under the

ERA should be read as just that. To give effect to that addition it is not necessary to further

assume that Congress made a tacit addition to the definition of person. Likewise, an

addition to the list of employers under the Act does not necessitate an assumption that

Congress intended to waive sovereign immunity. Our judgment on this point is strongly

influenced by our recognition that Congress retains the power to legislate on the question

before us and to unequivocally resolve the matter. We have no warrant to substitute our

interpretive efforts for the legislative authority of Congress.

When there are multiple “plausible” interpretations of a statute, “a reading imposing

monetary liability on the Government is not ‘unambiguous’ and therefore should not be

adopted.” United States v. Nordic Village, 503 U.S. 30, 37 (1992).

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is incompatible with waiver is also plausible, the latter must prevail. That is

because the very presence of ambiguity precludes a finding of waiver.” 31 The

ambiguity in the statutory text at issue here, considered in favor of the sovereign,

compels us to conclude that the ERA does not contain an unequivocal expression of

legislative intent to waive immunity. 32

CONCLUSION

We hold that the whistleblower protection provision of the ERA does not

contain an unequivocal expression of intent to waive sovereign immunity, and, as

such, the United States has not waived sovereign immunity for ERA whistleblower

claims. We therefore conclude that the ALJ’s decision was correct in law and should

be AFFIRMED. Accordingly, we DENY Peck’s complaint.

SO ORDERED.

Pastor, slip op. at 17 (citing Dep’t of Energy v. Ohio, 503 U.S. 607, 627). Congress did

not add the NRC to the definition of “employer” until 2005. One can argue that, in light of

Pastor, Congress would have also defined “person” to include the federal government if it

intended to waive immunity. See, e.g., Mull, slip op. at 11, fn 5 (citing Lorillard v. Pons, 434

U.S. 575, 580 (1978)(“Congress is presumed to be aware of an administrative or judicial

interpretation of a statute and to adopt that interpretation when it re-enacts a statute

without change”)).

At least two members of Congress consider the use of the term “person” in the ERA

sufficiently vague that they proposed a bill on May 24, 2018, “[t]o amend the Energy

Reorganization Act of 1974 to clarify whistleblower rights and protections, and for other

purposes.” See S. 2968, 115th Cong. § 2 (2018). The amendment would have created a

definition of the word “person” that would specifically identify the NRC as a person under

the act. Id (“The term ‘person’ includes - (i) a person (as defined in Section 11 of the Atomic

Energy Act of 1954 (42 U.S.C. 2014)); (ii) the Commission; and (iii) the Department of

Energy.”). As of the date of this decision, no such legislation has been enacted.

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BURRELL, Administrative Appeals Judge, dissenting:

Respectfully, I dissent from the majority’s holding. I would hold that the ALJ

erred in concluding that Congress did not waive the Nuclear Regulatory

Commission’s (NRC) sovereign immunity in the 2005 amendments to Section 211 of

the ERA of 1974, 42 U.S.C. § 5851.

Discussion

1. The Supreme Court’s sovereign immunity standard

The Supreme Court has stated on many occasions that a waiver of sovereign

immunity must be “unequivocally expressed” in statutory text. See, e.g., Lane v.

Peña, 518 U.S. 187, 192 (1996); United States v. Nordic Village, Inc., 503 U.S. 30, 33

(1992); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990). Waivers of

immunity, furthermore, “must be construed strictly in favor of the sovereign and

not enlarged beyond what the language requires.” Dep’t of Energy v. Ohio, 503 U.S.

607, 615 (1992) (citations omitted); see also Lane, 518 U.S. at 192 (noting that “a

waiver of the Government’s sovereign immunity will be strictly construed, in terms

of its scope, in favor of the sovereign”). Any ambiguities in the statutory language

are to be construed in favor of immunity. United States v. Williams, 514 U.S. 527,

531 (1995). The Supreme Court has held that where there are two plausible

interpretations of a provision, with only one waiving sovereign immunity, such

provision does not unequivocally indicate a waiver. See Nordic Village, 503 U.S. at

36–37. Ambiguity exists if there is a plausible interpretation of the statute that

would not authorize money damages against the Government. Id. at 34, 37.

2. In 2005, Congress amended the ERA following the ARB’s decisions in

Pastor and Bath

In 2005, Congress amended the definition of “employer” in § 5851’s

whistleblower provision to expressly include the NRC. This amendment follows two

ARB decisions concluding that immunity was not waived for the respective federal

entities, one involving the NRC.

In Pastor v. Dep’t of Veterans Affairs, ARB No. 99-071, ALJ No. 1999-ERA011 (ARB May 30, 2003), the ARB held that Pastor’s claim for monetary damages

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was barred by the federal government’s sovereign immunity. Pastor was employed

by the Philadelphia Veterans Affairs Medical Center and terminated for what she

alleged was retaliation in violation of § 5851 of the ERA. Pastor initially sought

reinstatement and monetary damages but later dropped her effort for

reinstatement. The Department of Veterans Affairs argued that while it was an

“employer” as a licensee of the Commission, it was not a “person” subject to § 5851’s

remedies section. The ARB agreed. Pastor, ARB No. 99-071, slip op. at 16.

Shortly after Pastor, the ARB issued Bath v. U.S. Nuclear Regulatory Comm.,

ARB No. 02-041, ALJ No. 2001-ERA-041 (ARB Sept. 29, 2003). Bath had filed a

complaint against the NRC and five NRC employees for violating the whistleblower

protection provisions of the ERA, § 5851. NRC sought to dismiss Bath’s complaint

on the grounds that neither the NRC nor its employees are “employers” for purposes

of § 5851, and the claim against the NRC is barred by sovereign immunity. Citing

Pastor, the ARB held that Bath’s claim against the NRC and its employees must fail

as Congress did not waive the federal government’s immunity in § 5851. The ARB

wrote as follows:

The term “person” carries special significance in the context of

sovereign immunity because it is presumed to not include the

federal government. . . . Congress’ choice of the word “person” in

the liability section of § 5851(b) was strong evidence that

Congress did not intend to include federal agencies among the

employers subject to liability under § 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 “employer.” 33 As amended, § 5851 prohibits an employer, now

Pub. L. 109-58, § 629, 119 Stat. 594 (2005). The Complainant’s Brief to the ARB and

the Amicus Brief filed by the Government Accountability Project provide a persuasive

history showing that the 2005 amendment to the ERA was intended to overturn the ARB’s

holding in Bath that the NRC was not a covered entity. Cf. Lorillard v. Pons, 434 U.S. 575,

580–81 (1978) (Congress is presumed to be aware of administrative and judicial

interpretations of a statute when it amends or re-enacts a provision).

The question as to whether the DOE can be a respondent also has a history. Teles v.

U.S. Dep’t of Energy, No. 1994-ERA-022 (Sec’y Aug. 7, 1995) (observing that DOE was not

provided for in the final definition of “employer” in the ERA’s whistleblower provision but

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expressly including the NRC and DOE, from retaliating against employees of the

NRC or the DOE:

(a) Discrimination against employee

(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)-- …[engages in protected activity].

(2) For purposes of this section, the term “employer” includes-...

(F) the 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 unmistakable. The

NRC asks the ARB to ignore the express text of the 2005 amendment by applying

rules of statutory construction 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.” 34 The crux of

the question is whether “employer” and “person” 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 NRC’s immunity for “persons”

even if it extended the definition of “employers” to include the NRC. I would hold

may have been intended in draft language that did not make it to the final language

adopted by Congress).

The majority and dissent in Mull v. Salisbury Veterans Admin. Med. Clinic, ARB

No. 09-107, ALJ No. 2008-ERA-008 (ARB Aug. 31, 2011), disagreed as to whether § 5851

borrowed the Atomic Energy Act’s definition of person. The majority of the panel decided,

over the amicus brief of the Occupational Safety and Health Administration, that Congress

did not intend for § 5851’s whistleblower provision to incorporate AEA’s definition of

“person,” codified at 42 U.S.C. § 2014(s).

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PAGE 15

that Congress intended for “employer” to include “person” when it amended the

definition of “employer” to include the NRC.

The majority correctly identifies the long-standing presumption that a

statute’s use of “person” does not generally include the federal government for

purposes of a waiver of sovereign immunity. Majority Opinion, supra page 9, citing

Return Mail Inc. v. U.S. Postal Serv., 139 S. Ct. 1853, 1861–62 and 1 U.S.C. § 1; see

also Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780–

81 (2000). I do not take issue with the majority’s recitation of rules of construction

or its analysis of relevant case 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” does not include the United States is not a

“hard and fast rule of exclusion.” United States v. Cooper, 312 U.S. 600, 604–05

(1941). “[I]t may be disregarded only upon some affirmative showing of statutory

intent to the contrary,” Stevens, 529 U.S. at 781. The 2005 amendments provide the

necessary 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’s 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, I examine the construction of § 5851’s sections as

they interrelate to each other and explore § 5851’s origin for the connection between

“employer” and “person.”

Section 5851(a), the prohibition section, provides that “[n]o 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) . . .

[engages in protected activity].” The 2005 amendments include “the Commission”

and the “Department of Energy” as employers.

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Section 5851’s “complaint” and “remedies” sections link “employee” to

“person” in the language “[a]ny employee who believes that he has been discharged

or otherwise discriminated against by any person in violation of subsection (a) may, .

. . file . . . a complaint with the Secretary of Labor . . . .” 35 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,

conditions, and privileges of his employment, and the Secretary may order such

person to provide compensatory damages to the complainant.” 36

Section 5851 uses “employer” in the prohibition section and “person” in the

remedies and complaint sections. The federal reporters are full of references 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 disparate inclusion or exclusion.’”

Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted).

42 U.S.C. § 5851(b)(1) (emphasis added):

(b)(1) Any employee who believes that he has been discharged or

otherwise discriminated against by any person in violation of

subsection (a) may, within 180 days after such violation occurs, file (or

have any person file on his behalf) a complaint with the Secretary of

Labor (in this section referred to as the “Secretary”) alleging such

discharge or discrimination. . . .

42 U.S.C. § 5851(b)(2)(B):

(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, and the Secretary may order such person to provide

compensatory damages to the complainant. If an order is issued under

this paragraph, the Secretary, at the request of the complainant shall

assess against the person against whom the order is issued a sum

equal to the aggregate amount of all costs and expenses (including

attorneys' and expert witness fees) reasonably incurred, as determined

by the Secretary, by the complainant for, or in connection with, the

bringing of the complaint upon which the order was issued.

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PAGE 17

The Russello presumption does not always control the construction of a term

or provision. The Third Circuit in Port Authority Trans-Hudson, Corp. v. Sec’y, U.S.

Dep’t of Labor, 776 F.3d 157 (3d Cir. 2015), found that the presumption

in Russello “only applies when the two provisions are sufficiently distinct that they

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 there was no “hypothesis of careful draftsmanship,” evidenced

in the “inexact drafting in [FRSA’s 49 U.S.C.] § 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[e] statut[e] in light of the purposes Congress sought to serve.”

Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979); see also Dolan

v. 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 terms

“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 against

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 are 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 entity 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 presumption is

“unhelpful” in specific contexts, where they “run the risk of defeating the central

purpose of the statute.” Cf. Kosak v. United States 465 U.S. 848, 853, n.9 (1984).

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b. ERA’s whistleblower provision is modeled after other environmental

whistleblower provisions

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. No. 95-95,

91 Stat. 685 (Aug. 7, 1977). That provision provides the following:

(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 privileges of employment

because the employee (or any person acting pursuant to a

request of the employee)-- . . . [engages in protected activity]

(b) Complaint charging unlawful discharge or discrimination;

investigation; order

(1) Any employee who believes that he has been discharged or

otherwise discriminated against by 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, and 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.

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PAGE 19

(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.

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.

Envtl. Prot. Agency, ARB Nos. 03-002, et seq. ALJ Nos. 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 Act, or CWA), omitted the

clear language including the federal government in its definition of “person.” 37

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

29 Op. O.L.C. 171 (Sept. 23, 2005). The 1976 SWDA’s anti-retaliation provision

provides the following:

No person shall fire, or in any other way discriminate against, or

cause to be fired or discriminated against, any employee or any

authorized representative of employees by reason of the fact that such

employee or representative has filed, instituted, or caused to be filed

or instituted any proceeding under this Act or under any applicable

implementation plan, or has testified or is about to testify in any

proceeding resulting from the administration or enforcement of the

provisions of this Act or of any applicable implementation plan.

42 U.S.C. § 6971. SWDA’s definition of “person” was amended to include federal

government. Id. at § 6903(15).

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PAGE 20

statute as model for the other. 38 The absence of a definition of “employer” has not

created a sovereign immunity problem or “equivocalness” when the statute clearly

defines “person” to include the federal government. Here, we simply face the

converse.

c. Environmental whistleblower case law has recognized the interchangeability

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. OFCCP, No 1991ERA-035, slip op. at 2 (Sec’y Sept. 24, 1991) (“It is well 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. 1983).

Similar conclusions as to the interchangeability of “employer” and “person”

but the importance of “employer” in qualifying the reach of the provision have been

discussed in CAA case law. In Varnadore v. Oak Ridge Nat’l Lab., Nos. 1992-CAA002, -005, 1993-CAA-001 (ARB June 14, 1996), the ARB observed that the Secretary

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

employees who engage in protected activity. “[P]ersons who are not ‘employers’

within the meaning given that word in the ERA may not be held liable for

whistleblower violations.” Slip op. at 34-35 (denying claim against the Secretary of

Energy), citing Stevenson v. Nat’l Aeronautical & Space Admin., No. 1994-TSC-005,

slip op. at 3-5 (Sec’y July 3, 1995) (subordinating the CAA’s definition of “person,”

which includes “individuals,” because “[t]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.”).

S. Rep. 95-848, 95th Cong., 2d Sess. (May 15, 1978), available at 1978 WL 8524; see

also Mackowiak v. Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1163 (9th Cir. 1984).

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d. Construing “person” independent of “employer” renders § 5851 meaningless for

specified employers

The NRC’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 their terms, conditions, and privileges of employment in violation of the

prohibition section. 39 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 NRC

fails to provide any plausible construction for construing the terms independently.

Corely v. United States, 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 v. Ohio, 503 U.S.

607 (1992), and United States v. 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 for the

United States or providing for monetary or punitive damages could be plausibly

In Lane, 518 U.S. at 193, the Supreme Court distinguished the relationship between

§ 504(a) and § 505(a)(2) from that of § 501 and § 505(a)(1). Concluding that there was no

waiver under §505(a)(2), the Court sharply distinguished “the precision with which

Congress has waived the Federal Government’s sovereign immunity from compensatory

damages” in the remedy section connected with Section 501 of the Rehabilitation act, 29

U.S.C. § 791, prohibiting disability discrimination in federal government. Section 505(a)(1),

the remedy section associated with Section 501, provides the following:

The remedies, procedures, and rights set forth in section 717 of the Civil

Rights Act of 1964 [which allows monetary damages] ... shall be available,

with respect to any complaint under 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 complaint.

29 U.S.C. § 794a(a)(1) (emphasis added). I would hold that the ERA’s relationship between

“employer” and “person” resembles this relationship and not that between § 504(a) and §

505(a)(2) where the Court in Lane found no waiver.

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PAGE 22

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.

In § 5851’s whistleblower 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 naming “the Commission” and “the Department of Energy” as

“employers.” When Congress amended “employer” to include the NRC, it must have

intended it to be both an “employer” and “person” throughout the prohibition,

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 that § 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 v. 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)(1) 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 the lien. This fact reinforced

the Court’s conclusion that this was not Congress’s intent. Justice Scalia,

concurring in Williams, stated that the rule of strictly construing waivers “does not,

however, require explicit waivers to be given a meaning that is implausible.” 514

U.S. at 541. “The 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., 243 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.” 40 I

would give effect to Congress’s amendment stating precisely what the text of the

Section 5851’s interconnected use of “employer” and “person” is not an instance

where Congress has used “person” in a sentence, clause, or section inconsistently or there is

a competing definition of “person” such that a generic, undefined use of “person” in the

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PAGE 23

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 Congress 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.

I recognize the Supreme Court’s case law strictly construing waivers.

McMahon v. United States, 342 U.S. 25, 27 (1951). The Supreme Court has also

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 States, 507 U.S. 197,

203 (1993). In analyzing the issue of immunity, the Supreme Court does not require

that Congress use magic words to effect waiver. To the contrary, the Court has

observed that the sovereign 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 Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008). “What we thus

require is that the scope of Congress’ waiver be clearly discernable 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 Admin. v. Cooper,

566 U.S. 284, 291 (2012). Tribunals are not “self-constituted guardian[s] 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 it

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

statute cannot borrow another reference or context where waiver is express. U.S. Dep’t of

Energy v. Ohio, 503 U.S. 607, 617–19 (1992). Here, the ERA’s whistleblower provision

contains a simple prohibition and complaint and remedies sections intimately connected

with the prohibition.

The majority cites to pending legislation seeking to “clarify” § 5851’s definition of

“person” for the point that the legislation without a definition of “person” is ambiguous.

Majority Opinion, supra page 12 n.32. The pending legislation is equally indicative of

judicial construction failing to give plain language its intended effect. At some point, “strict

construction” is less “construction” of legislation and more akin to the imposition of a

limitation on Congress’s power.

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PAGE 24

of “employer” in the prohibition section, does not create equivocalness to preclude a

finding of waiver.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.