Petition for Writ of Certiorari — Erik Leckner, Petitioner v. General Dynamics Information Technology, et al.
Supreme Court briefApr 23, 2022
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APPENDIX TABLE OF CONTENTS
Opinions and Orders
Memorandum Order of the United States
Court of Appeals for the Ninth Circuit
(October 18, 2021)................................
la
Decision and Order of U.S. Department of Labor
(October 22, 2020)...........................................
5a
Decision and Order Granting Summary
Decision of U.S. Department of Labor
(January 23, 2020)...............................
14a
Rehearing/Reconsideration Orders
Order of the United States Court of Appeals for
the Ninth Circuit Denying Petition for
Rehearing En Banc (January 25, 2022)......
41a
Order of the U.S. Department of Labor Denying
Reconsideration (December 15, 2020).......... 43a
APPENDIX TABLE OF CONTENTS (Cont.)
Other Documents
Exhibit I.
Initial Complaint
47a
Exhibit II.
Objections to the Findings and Request for a
Hearing, Relevant Excerpts (“Request”)....... 53a
Exhibit III.
Retaliation
63a
Exhibit IV.
Official Date of Discharge (June 13, 2018)..... 72a
Exhibit V.
U.S. Department of Labor Occupational safety
and Health Administration (OSHA) Coordina
tion with Federal Partner Agencies
(October 3, 2017).............................................. 74a
App.la
MEMORANDUM* ORDER OF THE UNITED
STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
(OCTOBER 18, 2021)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK LECKNER,
Petitioner,
v.
GENERAL DYNAMICS INFORMATION
TECHNOLOGY; ET AL.,
Respondents.
No. 21-70284
ARB Case No. 2020-0028
On Petition for Review of an Order
of the Department of Labor
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and
BUMATAY, Circuit Judges.
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
App.2a
Erik Leckner petitions pro se for review of the
Department of Labor’s Administrative Review Board’s
(“ARB”) final decision and order, and denial of Leckner’s
motion for reconsideration, affirming the Adminis
trative Law Judge’s (“ALJ”) summary dismissal of
Leckner’s whistleblower retaliation complaint against
his former employers under the Clean Air Act (“CAA”),
42 U.S.C. § 7622, the Comprehensive Environmental
Response Compensation and Liability Act (“CERCLA”),
42 U.S.C. § 9610, the Solid Waste Disposal Act
(“SWDA”), 42 U.S.C. § 6971, the Toxic Substances
Control Act (“TSCA”), 15 U.S.C. § 2622, the Federal
Water Pollution Control Act (“FWPCA”), 33 U.S.C.
§ 1367, the Energy Reorganization Act (“ERA”), 42
U.S.C. § 5851, and the Sarbanes-Oxley Act (“SOX”),
18 U.S.C. § 1514A. We have jurisdiction under 42
U.S.C. § 7622(c)(1) (CAA), 42 U.S.C. § 9610(b) (CERCLA),
42 U.S.C. § 6971(b) (SWDA), 15 U.S.C. § 2622(c)(1)
(TSCA), 33 U.S.C. § 1367(b) (FWPCA), 42 U.S.C. § 5851
(c)(1) (ERA), and 18 U.S.C. § 1514A(b)(2)(A) (SOX).
We review the ARB’s decisions pursuant to the stan
dard established in the Administrative Procedure
Act (“APA”), 5 U.S.C. § 706. Under the APA, “we will
reverse an agency’s decision only if it is arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Coppinger-Martin v. Solis, 627
F.3d 745, 748 (9th Cir. 2010) (citation and internal
quotation marks omitted). We review de novo an
agency’s interpretation or application of a statute.
Schneider v. Chertoff, 450 F.3d 944, 952 (9th Cir. 2006).
We deny the petition.
The ARB properly affirmed the dismissal as
untimely of Leckner’s retaliation claims under the
CAA, CERCLA, SWDA, TSCA and FWPCA because
App.3a
Leckner failed to raise a genuine dispute of material
fact as to whether he filed his whistleblower complaint
within 30 days of his employers’ alleged retaliatory
decisions. See 29 C.F.R. § 24.103(d)(1) (requiring a
complainant file an administrative complaint within
30 days after an alleged violation of the employee
protection provisions of the CAA, CERCLA, SWDA,
TSCA and FWPCA).
The ARB properly affirmed the dismissal of
Leckner’s retaliation claim under the SOX because
Leckner failed to raise a genuine dispute of material
fact as to whether he engaged in protected activity
under the SOX. See Van Asdale v. Int’l Game Tech
577 F.3d 989, 996-97, 1000-01 (9th Cir. 2009) (to be
protected activity an employee must have a subjective
and objectively reasonable belief that the reported
conduct violated one of the listed categories of fraud
or securities violations under 18 U.S.C. § 1514A(a)).
The ARB properly denied Leckner’s request to
admit new evidence because Leckner failed to
demonstrate that the evidence could not have been
discovered with reasonable diligence before the record
closed. See 29 C.F.R. § 18.90(b)(1) (“No additional
evidence may be admitted unless the offering party
shows that new and material evidence has become
available that could not have been discovered with
reasonable diligence before the record closed.”).
We do not consider Leckner’s contentions con
cerning his ERA claim, or his other arguments and
allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Leckner’s motion to supplement the record (Docket
Entry No. 11) is denied.
App.4a
Leckner’s motions to expedite (Docket Entry No.
21) and to file an oversized reply in support of the
motion to supplement the record (Docket Entry No.
25) are denied as unnecessary.
Leckner’s motions to file a corrected and oversized
reply brief (Docket Entry Nos. 55, 57, 59 and 60) are
granted. The Clerk will file the corrected reply brief
at Docket Entry No. 59-2.
PETITION FOR REVIEW DENIED.
App.5a
DECISION AND ORDER OF U.S.
DEPARTMENT OF LABOR
(OCTOBER 22, 2020)
U.S. DEPARTMENT OF LABOR
Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
In the Matter of: ERIK LECKNER,
Complainant,
v.
GENERAL DYNAMICS INFORMATION
TECHNOLOGY, INC. (formerly CSRA),
and
APEX SYSTEMS, LLC,
Respondents.
ARB Case No. 2020-0028
ALJ Case No. 2019-SOX-00028
Date: October 22, 2020
Before: James D. MCGINLEY, Chief Administrative
Appeals Judge and Randel K. JOHNSON,
Administrative Appeals Judge.
This case arises under the employee protection
provisions of the Clean Air Act (CAA), 42 U.S.C.A.
App.6a
§ 7622 (1977); Comprehensive Environmental Response,
Compensation, and liability Act (CERCLA), 42 U.S.CA.
§ 9610 (1980); Solid Waste Disposal Act (SWDA),
42 U.S.C. § 6971 (1980); Toxic Substances Control
Act (TSCA), 15 U.S.C. § 2622 (1986); Federal Water
Pollution Control Act (WPCA), 33 U.S.C. § 1367 (1972)
(collectively, the Environmental Acts); Energy Reor
ganization Act (ERA), 42 U.S.C. § 5851 (2005); and
Section 806 of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of the SarbanesOxley Act (SOX), 18 U.S.C. § 1514A (2010).
Erik Leckner filed a complaint alleging that
Respondents General Dynamics Information Technology,
Inc. (GDIT) and Apex Systems, LLC (Apex) violated
those laws by discharging him from employment. On
January 23, 2020, an Administrative Law Judge (ALJ)
dismissed the complaint in a Decision and Order (D. &
O.) granting Respondents’ Motions for Summary Deci
sion. For the following reasons, we affirm the ALJ.
BACKGROUND
GDIT provides information technology services,
to government contractors. It acquired CSRA, also a
provider of information technology services, in 2018.
Apex is a staffing agency. In 2017, the U.S. Environ
mental Protection Agency (EPA) contracted with
CSRA for work on an “Emergency Management Portal”
project. CSRA contacted Apex to obtain a lead Java
developer for the project. Apex referred Leckner to
CSRA, and CSRA hired Leckner in January 2018 for
the position. His duties included designing, writing,
testing, documenting, and maintaining computer
software, as well as mentoring a junior Java developer.
App.7a
In January 2018, Leckner asked CSRA supervisor
Ed Campbell for access to the project’s full source
code repository. The repository is a software system
that records changes to source code files and thereby
provides a history of all of the revisions in the develop
ment of the source code. Campbell was unable to pro
vide the access. Leckner also opined that CSRA had
failed to complete a formal transition of the project.
Between January and March 2018, Leckner’s
CSRA supervisors concluded that Leckner was involved
in several “defensive and aggressive interactions with
team members and management.”1 On April 9, 2018,
GDIT notified Apex that it was removing Leckner from
the project and wanted Apex to find a replacement.
On April 13, 2018, Leckner emailed Rob Thomas,
CSRA’s contact at EPA, and complained that the
GDIT development team was being denied access to
portions of the project code. Leckner also expressed
this concern to Campbell, who thereafter told
Dominique Reed, an Apex Account Executive, that
Leckner had discussed “alleged project inefficiency
and other project matters” with EPA. On April 16,
2018, Leckner sent a series of emails to Reed in
which he complained about “productivity and respons
iveness on his assignment.’^ Apex found a replacement
and on May 29, 2018, Reed notified Leckner that his
employment was terminated and that he must return
his badge and laptop.3
1 D. & O. at 7.
2 Declaration of Dominique Reed at 4.
3 Id.
App.8a
On July 18, 2018, Leckner initiated a SOX com
plaint before the Occupational Safety and Health
Administration (OSHA). He amended the complaint
to include allegations that his discharge violated the
Environmental Acts and ERA. According to Leckner,
Respondents retaliated against him for complaining
that his lack of access to the repository was a
cybersecurity risk that caused a waste of federal
funds, and the failure to complete a formal transition
allowed a former contractor to retain access to the
project.4
OSHA concluded that the claims under the
Environmental Acts were untimely. OSHA also
concluded that Respondents were not covered employers
under the ERA, and that Leckner did not engage in
SOX-protected activity prior to his discharge. Leckner
requested a hearing before an ALJ but, prior to any
hearing, GDIT and Apex submitted motions for sum
mary decision. On January 23, 2020, the ALJ granted
the motions, and Leckner appealed the AU’s ruling
to the Board.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated to the
Board his authority to review ALJ decisions under
the Environmental Acts, ERA, and SOX.5 The ARB
reviews an ALJ’s grant of summary decision de novo
4 D. & 0. at 12; see, e.g., Complainant’s Opposition to Respond
ent CSRA’s Motion for Summary Decision at 3-5.
5 Secretary’s Order No. 01-2020 (Delegation of Authority and
Assignment of Responsibility to the Administrative Review
Board (Secretary’s discretionary review of ARB decisions)), 85
Fed. Reg. 13186 (Mar. 6, 2020).
App.9a
under the same standard the ALJ applies. Summary
decision is permitted where “there is no genuine
dispute as to any material fact and the movant is
entitled to decision as a matter of law.”6 The ARB
views the record on the whole in the light most
favorable to the non-moving party. 7
DISCUSSION
1.
Leckner’s Claims Under the Environmental
Acts Were Untimely
A complainant must file a complaint of unlawful
discrimination under the Environmental Acts within
thirty days of a discrete adverse action.8 The thirtyday limitations period begins to run on the date that
a complainant receives final, definitive and unequivo
cal notice of a discrete adverse employment action.
Respondents submitted evidence that Apex notified
Leckner of his discharge on May 29, 2018. The 30day limitations period ended on June 28, 2018. The
ALJ held that Leckner initiated his complaint with
OSHA on July 18, 2018.9 Because Leckner failed to
file his OSHA complaint within 30 days after he was
6 29 C.F.R. § 18.72(a).
7 Micallef u. Harrah’s Rincon Casino & Resort, ARB No. 20160095, ALJ No. 2015-SOX-00025, slip op. at 3 (ARB July 5, 2018).
8 29 C.F.R. § 24.103(d)(1) (implementing the timeliness provisions
of the CAA (42 U.S.C. § 7622(b)(1)), CERCLA (42 U.S.C. § 9610(b)),
SWDA (42 U.S.C. § 6971(b)); TSCA (15 U.S.C. § 2622(b)(1)), and
WPCA (33 U.S.C. § 1367(b)).
9 D. & O. at 10. In his response to GDIT/CSRA’s Motion, Leckner
states that he first contacted OSHA on May 31, 2018, but he
provided no documentation that supports this claim.
App.lOa
notified of his discharge, his claims under the Environ
mental Acts were untimely. 1°
2.
Respondents Are Not Employers Under the
ERA
Congress passed the ERA in 1974 as part of its
continuing effort to regulate nuclear energy. In 1978,
Congress amended the ERA to prohibit employers
from discriminating against employees who report
violations of the ERA or the Atomic Energy Act or
who participate in any other action to carry out the
purposes of those acts. For purposes of the ERA, the
term “employer” includes these entities:
(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 Commis
sion or such an agreement State;
(C) a contractor or subcontractor of such a licensee
or applicant;
10 Leckner was represented by counsel before the ALJ but did
not present any exhibits in responding to Respondents’ Motions
for Summary Decision. Now appearing pro se before the Board,
Leckner moves to present exhibits that he contends establish
the timeliness of his complaint as well as coverage under the
ERA and SOX. However, he does not explain why he was
unable to present these exhibits (in contrast to those he asserts
were requested pursuant to FOIA) to the ALJ. We therefore will
not consider this new evidence on appeal and those motions are
denied. See, e.g., Aityahia v. Air Line Pilots Assoc., ARB No.
2019-0037, ALJ No. 2018-AIR-00042, slip op. at 3, n.2 (ARB
May 19, 2020).
App.lla
(D) a contractor or subcontractor of the Depart
ment 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 Ex
ecutive Order No. 12344;
(E) a contractor or subcontractor of the Com
mission;
(F) the Commission; and
(G) the Department of Energy, n
Leckner did not rebut Respondents’ assertions
before the ALJ that they are not employers under
the ERA, and the ALJ held that the record was
devoid of any evidence that would bring either Res
pondent within the ERA’s coverage. The record sup
ports the ALJ.
3.
Leckner Did Not Engage in Protected
Activity Under the SOX
The SOX prohibits covered employers from
discharging, demoting, suspending, threatening,
harassing, or in any other manner discriminating
against employees who provide information to a
covered employer or a federal agency or Congress
regarding conduct that the employee reasonably
believes constitutes a violation of 18 U.S.C. §§ 1341
(mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank
fraud), or 1348 (securities fraud), or any rule or regu
lation of the Securities and Exchange Commission, or
11 42 U.S.C. § 5851(a)(2).
App.l2a
any provision of Federal law relating to fraud against
shareholders.12
Reporting an actual violation is not required; a
complainant can engage in protected activity when
he reports a belief of a violation that is about to occur
or is in the stages of occurring. 13 A complainant need
not establish the various elements of securities fraud
to prevail, and a communication is protected where it
is based on a reasonable, but mistaken, belief that
the employer’s conduct constitutes a violation of one
of the six enumerated categories of law under Section
806.14 Additionally, a respondent is not shielded from
liability because it was already aware of problems
reported by the complainant.!5
During his employment on the Emergency Man
agement Portal project, Leckner expressed concerns
about computer software. There is no evidence that he
had an objectively reasonable belief that Respondents
violated any SEC rule or regulation or otherwise
engaged in securities fraud when he communicated
his concerns about computer software. And he failed
to set forth any regulation, rule, or Federal law that
12 18 U.S.C. § 1514A(a)(l); see, e.g., Xanthopoulos v. Marsh &
McClennan Cos., ARB No. 2019-0045, ALJ No. 2019-SOX-00008
(ARB June 29, 2020).
Barrett u. e-Smart Techs., Inc., ARB Nos. 2011-0088, 20120013, ALJ No. 2010-SOX-00031 (ARB Apr. 25, 2013).
Zinn v. Am. Commercial Lines Inc., ARB No. 2010-0029, ALJ
No. 2009-SOX-00025 (ARB Mar. 28, 2012).
^ Gunther v. Deltek, Inc., ARB Nos. 2013-0068, -0069, ALJ
No. 2010-SOX-00049 (ARB Nov. 26, 2014).
App.l3a
an objectively reasonable person would think the
Respondents violated.
In sum, we hold that there is no genuine issue of
material fact as to whether Leckner timely filed his
complaint under the Environmental Acts, worked for
an entity defined as an employer under the ERA, or
engaged in protected activity under the SOX.
CONCLUSION
We AFFIRM the ALJ’s Decision and Order
Granting Summary Decision and DENY Leckner’s
complaint.
SO ORDERED.
App.l4a
DECISION AND ORDER GRANTING
SUMMARY DECISION OF U.S.
DEPARTMENT OF LABOR
(JANUARY 23, 2020
U.S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200
(415) 625-2201 (FAX)
In the Matter of: ERIK LECKNER,
Complainant,
v.
GENERAL DYNAMICS INFORMATION
TECHNOLOGY, INC. (formerly CSRA),
Respondent,
and
APEX SYSTEMS, LLC,
Respondent.
Case No. 2019-SOX-00028
Issue Date: January 23, 2020
Before: Steven B. BERLIN, Administrative Law Judge.
App.l5a
This is a whistleblower retaliation claim brought
under the Sarbanes-Oxley Act, 18 U.S.C. § 1514A,
and six different environmental protection statutes.
The environmental statutes are: the Energy Reorgani
zation Act, 42 U.S.C. § 5851; the Federal Water
Pollution Control Act, 33 U.S.C. § 1367; the Clean
Air Act, 42 U.S.C. § 7622; the Toxic Substances Control
Act, 15 U.S.C. § 2622; the Solid Waste Disposal Act, 42
U.S.C. § 6971; and the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C.
§ 9610.1 Respondents General Dynamics Information
Technology and Apex Systems, LLC each move for
summary decision. I will grant the motions.
Undisputed Material Facts2
Respondent parties. Apex Systems is a staffing
agency. G.D.Ex. 4 H 3.3 General Dynamics Information
1 The implementing regulations for the Sarbanes-Oxley Act are
at 29 C.F.R. Part 1980. The implementing regulations for the
environmental statutes are at 29 C.F.R. Part 24.
2 As I recite the facts for purposes of summary decision in. the
light most favorable to the non-moving party (Complainant),
drawing all reasonable inferences in his favor, making no
credibility determinations adverse to him, and without weighing
the evidence, this fact finding is for purposes of this motion
only.
3 “A.Ex.” refers to Apex Systems’ exhibits. “G.D.Ex.” refers to
General Dynamics’s exhibits. Complainant did not submit any
exhibits.
Each Respondent submitted a copy of Dominique Reed’s dec
laration. See A.Ex. C; G.D.Ex. 4. I will cite throughout only the
copy that General Dynamics submitted (G.D.Ex. 4). Each Res
pondent also submitted a copy of Alison Page’s deposition
transcript. See A.Ex. D; G.D.Ex. 3. I will cite throughout only
the copy that General Dynamics submitted (G.D.Ex. 3).
App.l6a
Technology, Inc. is a wholly-owned subsidiary of Gen
eral Dynamics Corporation. It provides information
technology services to government contractors for
purposes such as defense, intelligence, and other gov
ernment requirements. CSRA was a publicly-traded
corporation, listed on the New York Stock Exchange.
On or about April 2, 2018, General Dynamics Corpora
tion acquired CSRA and placed it within General
Dynamics Information Technology, Inc. CSRA was
then delisted from the New York Stock Exchange.
General Dynamics Information Technology, Inc. does
not dispute for present purposes that it is liable for
any adverse decision. At times in this Order, I
therefore refer to CSRA and General Dynamics
Information Technology, Inc. together as “General
Dynamics.”
In 2017, the U.S. Environmental Protection
Agency contracted with CSRA for certain work on an
“Emergency Management Portal.” CSRA contacted
staffing agency Apex Systems to provide a lead Java
developer for the project. G.D.Ex. 4 f 6.
The legal technicalities of the relationship between
CSRA (and then General Dynamics Information
Technology) and Apex are vague, but not in a way
that affects summary decision. It appears that, when
Apex received a request from a client, it would find
someone whom it believed was a good candidate. See
G.D.Ex. 1 at 162. It would refer that person to the
client for an interview. Id. at 163. If the client
General Dynamics’s Exhibit 1 is a draft transcript of Edward
Campbell’s deposition testimony. A certified court reporter did
not certify this draft transcript. As no party disputes the
authenticity of the draft, I admit it for purposes of this motion.
App.l7a
approved, Apex hired the applicant and assigned him
or her to the client’s project. See id. The person per
formed all work under the direction and supervision of
Apex’ client, but Apex also had an “account executive”
with whom the hired person communicated about the
employment. See G.D.Ex. 4 t 4. The client paid Apex
under a contract, and Apex paid the employee. The
employee was hired to work on the client’s particular
project; if the client no longer required the employee’s
work, Apex would terminate the employment. G.D.Ex.
4 1 5. In some cases, after about six months, the
client would hire the person as its own employee. See
A.Ex. D at 23; G.D. Ex. 1 at 163-64.
For purposes of this motion, I avoid delving into
the intracacies [sic] of the relationship between Apex
and its clients by inferring that Apex and General
Dynamics Information Technology were joint employ
ers. As such, each is responsible for compliance
with all applicable employment law requirements.
Apex3 hire of Complainant to work at CSRA.
Apex referred Complainant to CSRA for an interview
for the Java development position; CSRA approved
Complainant for the job; and Apex hired complainant.
A.Ex. A at 3; A.Ex. D at 72; G.D.Ex. 4 If 6. Complainant
began to work at CSRA in January 2018. A.Ex. A at
3-4; G.D.Ex. 3 at 72-73; G.D.Ex. 4 f 6. He reported to
CSRA supervisors Alison Page and Ed Campbell.
G.D.Ex. 4 f 7. He also communicated about his em
ployment with Apex account executive Dominique
Reed. G.D.Ex. 4 If 7.
Complainant was to write Java code for the Emer
gency Management Portal project; modify, enhance,
and debug the software; communicate technical infor
mation to non-technical people; and mentor a junior
App.l8a
Java developer. G.D.Ex. 3 at 21-22; G.D.Ex. 1 at 46,
158, 165. He soon discovered that he did not have
access to all of the Portal project’s source code repo
sitory. The repository provides a history of all of the
revisions in the development of the source code.
A.Ex. A at 6; G.D.Ex. 1 at 65, 73, 155-56.
Access to source code repository. Complainant
asked CSRA supervisor Ed Campbell for access to
the full repository. G.D.Ex. 1 at 61-62. Campbell was
unable to provide the access. The Environmental
Protection Agency owned the repository, but it was
stored in the servers of Salient, which had worked on
the project before CSRA. G.D.Ex. 1 at 67-68; G.D.Ex.
3 at 60.
The “EPA had asked Salient to provide [CSRA
with] everything that they had with regards to the
source code” early on during Complainant’s employ
ment. G.D.Ex. 1 at 76-77. This should have occurred
during a 90-day transition period, during which
Salient would transfer its contract-related informa
tion. G.Ex. 1 at 29-30, 79-80. But no formal transition
had occurred; CSRA got only limited information,
which included a “limited code base and only access
to the production server”; it did not have the complete
source code. A.Ex. D at 19, 37; G.D.Ex. 1 at 30, 64, 6768; G.D.Ex. 3 at 19, 37.
When Complainant asked for the complete source
code repository, CSRA Supervisor Campbell tried to
get it from another source, but that source too had
never received it from Salient. G.D.Ex. 1 at 63. The
best he could get was a “snapshot” of the code, which
would show the code on a single day and not throughout
its history. G.D.Ex. 1 at 157. Campbell gave that to
Complainant and directed Complainant to recreate
App.l9a
the repository from the “snapshot.” G.D.Ex. 1 at 63,
97-98. Campbell made this assignment at the direction
of the EPA. G.D.Ex. 3 at 42.
Within a week or two, Complainant again re
quested the complete source code repository. G.D.Ex.
1 at 63-64. Campbell contacted a manager at Salient
and asked for “a more complete version” of the source
code repository “if it existed,” but Salient did not pro
vide it. Id. at 64.
Complainant soon asked Campbell for the complete
repository yet again. Id. at 69. Campbell again emailed
the Salient manager without success. Id. at 72. Each
time Campbell made a request to Salient for the
repository, he copied the CSRA’s contact at the EPA,
Rob Thomas. G.D.Ex. 1 at 72, 75, 98; G.D.Ex. 3 at 40.
Although, as directed, Complainant was using
the “snapshot” to recreate the source code repository,
he persisted in making weekly requests for the
complete repository. A.Ex. A at 6; G.D.Ex. 3 at 26,
42-43. Nothing on the record states specifically why
Complainant believed he needed access to the complete
repository; it would seem that Complainant believed
it would increase his efficiency for code development
and was needed for cybersecurity. See A.Ex. A at 1;
G.D.Ex. 1 at 74.
Complainant’s CSRA supervisors later testified
that they did not believe Complainant needed the
repository. As Complainant’s other CSRA manager,
Alison Page, testified, “We had access to the production
application, so it was just a matter of taking additional
time to re-create what we needed.” G.D.Ex. 3 at 4041. She added, “I don’t think [Rob Thomas of the
EPA] was concerned enough about [access to the
App.20a
source code repository] to pursue it any further than
he did. He was willing to fund us to re-create what
we needed.” Id. at 41.
Campbell also believed that CSRA didn’t need
the complete repository. G.D.Ex. 1 at 72-73. He ack
nowledged that it would be useful but thought the
snapshot was sufficient. As he testified: “[C]ertainly if
there was a source code with version history, it would
have given some context to where the applications
were. It was a nice to have at most, though. It was
certainly not required.” Id. at 73.
Mentoring duties with junior developer. Meanwhile,
Complainant was expressing frustration with the
junior Java developer whom he was supposed to
mentor, Rakhi Madhavan Nair. He seemed uncertain
what his role was supposed to be. In a February 23,
2018 email to CSRA supervisor Page, Complainant
stated:
The types of questions [she is] asking are
very junior—almost as if she has no relevant
engineering experience. [Nair] is having
difficulty finding things like basic jars even
though every project always has files in
different places—first thing an engineering
learns in any programming environment
from day one, be it C, C++, or Java. She
considered it “wrong” location.
We both have the same emails from others,
same source code, same access, yet she
needed help with even what FTP, files,
setup (although exclaiming it was junior
developer knowledge out of the blue when I
wanted to trace her steps when she said she
App.21a
was commenting out code-no developer ever
in history of working with at least 50,000+
engineers has ever commented out production
level code to make their own environment
work). [H ] [Nair] also makes requests for
things which are obvious in nature (not
anything complex).
I saw a discussion from Ed in Lead role and
I thought that was somewhat odd considering
I was placed as a Lead from the start and
then downgraded and replying to [Nair’s]
requests on very simple things.
G.D.Ex. 5.
Page discussed the email with Complainant’s
other supervisor, Ed Campbell. They “were kind of
taken aback to [Complainant’s] inclusion of the refer
ence to the 50,000-plus engineers.” G.D.Ex. 3 at 78.
They thought Complainant this was an exaggeration
and was unprofessional. G.D.Ex. 3 at 78. The two of
them spoke, first with Complainant, and then with
Complainant and Nair together. Id. They reminded
Complainant that he was in a mentor role and that
Nair was early in her career and at the beginning of
her employment. Id. But the reminder brought about
no change in Complainant’s behavior toward Nair.
As Campbell observed during teleconferences he
had with Complainant and Nair,
Frequently . . . [Nair] would begin to answer
a question and [Complainant] would cut her
off stating that she was giving an incorrect
status and that she needed to . . . wait her
turn and that she would be explained by
him the details of something down the road.
App.22a
G.D.Ex. 1 at 174-75. Campbell testified that Com
plainant “struggled from the outset to communicate
effectively with his colleagues” and that Complainant
“was at times monopolizing on phone calls, cutting
folks off abruptly, raising his voice periodically to
talk over individuals and at times corresponding via
email in a manner that did not lend itself to pro
ductivity and a good work environment.” Id. at 173.
Similarly, Page thought that during team meetings,
Complainant “acted as if his concerns were the most
important and would speak over others and . . . not
follow the agenda that was laid out.” G.D.Ex. 3 at 81.
Two weeks later, on March 9, 2018, Complainant
again complained about Nair in an email to Campbell
and Page:
I wouldn’t have brought this up again as I
had to several weeks ago, but it hasn’t
changed-in fact, it’s been happening regularly
on calls, emails, and so forth. So I would
like for it to stop so I can focus on the tasks
I am working on.
] Even in discussions
with Nair, I am hearing very junior levels of
knowledge [giving an example].
G.D.Ex. 6.
Around March 2018, Nair called Campbell and
Page; she was “highly upset” and “in tears.” G.D.Ex.
3 at 79, 82; G.D.Ex. 1 at 175. She said that Complainant
had been “quite hostile” toward her over the phone.
She requested that Campbell and Page take her off
the Portal project. G.D.Ex. 1 at 175. Page contacted
account executive Reed at Apex and related Nair’s
complaint. G.D.Ex. 3 at 82; G.D.Ex. 4 H 8. Reed
counseled Complainant. G.D.Ex. 4 U 8.
App.23a
Complainant’s interactions with other co-workers.
In addition to Nair, two of Complainant’s team mem
bers (Jennifer Morgan and Colleen McCarthy)
complained to Campbell that Complainant “was difficult
to correspond with, sometimes difficult to feel that it
was an even playing field conversation where there
would be a, you know, statement and a response and
that he was at times assertive, bordering on aggressive
when spoke to them.” G.D.Ex. 1 at 173, 176-77. Page
stated that everyone on the team4 had communication
problems with Complainant. G.D.Ex. 3 at 73-75.
Campbell himself observed or received reports from
others that Complainant had communication issues
with other colleagues outside of his immediate team,
including Paula Childers, Jay Waldo, and LeAnn
Spradling. G.D.Ex. 1 at 173.
Complainant next complained that security ad
ministrator Paula Childers took too long to retrieve
passwords for him. Campbell emailed Complainant:
I received the following reply from Paula
[Childers] this morning in regards to your
punch-list requests from last night. Just so
you know; my assessment of this reply is
not that [Childers] is blocking or silo-ing.
She appears to be doing what she can to
help us within the confines of the NCC pro
cedures she has to adhere to.
G.D.Ex. 7. Complainant replied:
Thanks about the [passwords] list. She can
make it up to me by sending the passwords
4 Swetha Chilivery, Cindy Fan, Lawanna Goods, and Colleen
McCarthy.
App.24a
right away without me having to find them.
Please ask her to do this or I can directly to
her. Nice talk below [referring to an email
by Childers] but no passwords as of yet.
I want access to those directions if it means
zipping it all up in one package from each
machine. I do not want her explanations
any longer—just the zipped packages. I have
gone enough with her filtering of what I
need. I care less of what she thinks I need.
Id. Campbell responded: “I am not understanding
this nastiness I’m sensing from you towards Paula.
I’m not seeing anything that warrants it.” Id.
Complainant resumed his complaints about Chil
ders a couple weeks later. Starting in the middle of the
night, he wrote three emails to Campbell, questioning
her decision-making and management skills. G.D.Ex.
2. In the first, sent at 3:14 a.m., he wrote:
For [Childers] today, to spend 30 minutes of
a one hour meeting explaining development
processes at EPA which she deliberately
and intentionally obstructs access for
developers is beyond my comprehension. . . .
That is why I realized in our meeting aht
[sic] she could just go on and talk for an
hour over nothing that really what the
intent of the meeting was. This is not the
first time and I am really concerned about
this repetitive Paula obstructive actions for
silo purposes....
G.D.Ex. 2. In the second email, sent eight
minutes later, at 3:22 a.m., Complainant wrote:
App.25a
Just one other note is what really is
disturbing is the fact that in the meeting
she said looked at those . . . directories and
said some directories are missing yet she is
the one who blocked read access to those
files that were missing .... Its not the fact
that they were 100% restrictive, it’s the fact
that she knew because she those permissions
that they were the same directories/files
that had their read permissions revoked.
That is beyond comprehension.
Example as provided earlier circled in red
as one example in one directory for fr [sic]
application. They are all like that in the other
directories too with some permissions with
no read access. Anyways, I think you should
address this with her up. . . . Anyways.
Id. In the third email, sent at 7:46 a.m., Complainant
wrote:
For tomorrow then with Rob, we should say
that Paula should provide the first install
while I watch all the steps. She refused in a
previous meeting to discuss this in the past.
• • • [11 ] We also need to ensure [Childers]
doesn’t hijack meetings giving a lecture
about dev processes. . . .
7<£5
5 Complainant’s grievances with Childers continued as long as
he remained at the Company. For example, on May 18, 2018, he
emailed Campbell: “Not even a single thank you from Paula’s
team for 5 emails of advice and research. Waste of time so in
the future I will not provide them any advice or recommenda
tions.” G.D.Ex. 8.
App.26a
Termination of employment. On April 9, 2018,
Page and Campbell notified Apex (through account
executive Reed) that the General Dynamics was
removing Complainant from the Portal project and
wanted Apex to find a replacement. G.D.Ex. 3 at 66,
82; G.D.Ex. 4 ^ 9.6 They gave as reasons that Com
plainant was:
(1) disruptive, domineering and aggressive
demeanor during team calls and other
meetings; (2) [had] defensive and aggressive
interactions with team members and
management; and (3) [was] perceived [as]
“overstepping” such as repeated and escala
ting requests and demands for access to
servers and information.
6 Complainant questions the date of this notice to Apex,
asserting that there should be an Outlook calendar invitation
for the date and that General Dynamics did not produce that
kind of Outlook entry during discovery. On November 6, 2019,
General Dynamics moved for leave to file a reply brief because
it had just received a copy of the Microsoft Outlook calendar
invitation through a Freedom of Information Act request to the
EPA; the Outlook invitation was on the EPA’s server. I allowed
General Dynamics to file the reply.
On November 7, 2019, General Dynamics submitted a copy of
the Outlook invitation from Page to Campbell and Reed for the
meeting on April 9, 2018. The subject of the meeting was: “Java
Dev’s discussion.” Complainant was a Java Developer. I therefore
find, as confirmed in the Outlook entry, that the undisputed
facts show that the meeting described in the text above did
occur on April 9, 2018.
App.27a
G.D.Ex. 4 T| 9. Page and Campbell gave additional
details at their depositions; the details are consistent
with the reasons recited in the quote above.7
On April 13, 2018, four days after General Dyna
mics notified Apex that it was removing Complainant
from the job, Complainant emailed Rob Thomas at
the EPA. Request for a Hearing at 18.8 He reported
that the Salient development team still had access to
portions of the Portal project code, when instead the
development team at General Dynamics IT needed
that access:
[I]f you look at the bottom right of the
BEFORE image inserted here, you will see
that prior to the change, I ran a group info
7 Page testified that they decided to remove Complainant be
cause of “[t]he issues with meshing with the team, the consist
ent requests for access that he didn’t need, and then—the
issues with Rakhi, the other developer.” G.D.Ex. 3 at 83.
Campbell testified that Complainant “had some real issues
communicating and collaborating productively with his immedi
ate colleagues and extended colleagues at General Dynamics.”
G.D.Ex. 1 at 198. He explained that Complainant “was a poor
fit for the team. He did not communicate well. He was hostile to
his immediate and extended colleagues and did not represent a
good fit for the project moving forward.” Id. at 202-03.
8 Although Complainant’s email to Thomas is not on the record
of this motion, it appears to be the communication to a govern
ment agency that Complainant contends was protected under
the various statutes on which he relies. Complainant’s failure
(through counsel) to put the email on the record and cite to it is
a basis to disregard it. See 29 C.F.R. § 18.72(c)(l)(i), (3).
Nonetheless, as the applicable rule allows the ALJ to “consider
other material in the record,” see 29 C.F.R. § 18.72(c)(3), (e), and
I found a copy of the email in Complainant’s request for hearing
before an ALJ, I will consider the email for purposes of these
motions.
App.28a
linux command and saw that salient
development team was still on the group
(but new dev wasn’t). That was one of the
issues. So if you recall, you, I, and Ed all
requested to the NCC that we needed
access. ...”
Id. EPA’s Thomas replied ten minutes later. He
advised Complainant to tell Campbell about this so
the Salient employees’ access could be removed as
soon as possible. Id. He stated that leaving the
names of the Salient team with access violated
security controls. Id. Complainant answered that he
would notify Campbell immediately. Id. at 17. Thomas
commented, “This is something I need to speak to Ed
about and then go up their chain of command. This
makes EPA looks more than bad . . . they’re burning
federal resources and what is the result.” Id.
On April 16, 2018, Campbell told Apex’s Reed
that Complainant had discussed “alleged project in
efficiency and other project matters” with the EPA on
April 13, 2018. G.D.Ex. 4 If 11. Reed stated in a dec
laration that Apex’s employees are expected to raise
their concerns with Apex; in some cases, they can
discuss concerns with their supervisor at the client.
Id. Campbell requested that Reed counsel Complainant
about speaking directly with EPA. Id. Reed complied:
she told Complainant to bring any project management
concerns to Campbell and Reed. Id.
Later that afternoon, Complainant wrote four
emails to Reed. At the outset (12:26 p.m.), he thanked
Reed “for the update” and said that he “definitely
preferred] not to be in the cross fires of this,” and “I
prefer to stay out of politics.” A.Ex. Cl. But then he
App.29a
continued over the next six hours to send Reed com
plaints about Campbell and others. Id.
On May 29, 2018, after Apex found a replacement
for Complainant, Page told Apex (through Reed) that
Complainant was off the project. G.D.Ex. 4 t 13. On
the same day, Reed notified Complainant that his
employment was terminated and that he must return
his badge and laptop. A.Ex. A at 6; A.Ex. C2; G.D.Ex.
4 t 13. Complainant filed a complaint with OSHA on
July 18, 2018. A.Ex. A; A.Ex. B.9
Discussion
Legal requirements for summary decision. On
summary decision, I must determine if, based on the
evidence in the record, there is no genuine issue of
material fact such that the moving party is entitled
to judgment as a matter of law. See 29 C.F.R. § 18.72.
I consider the facts in the light most favorable to the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). I must draw all rea
sonable inferences in favor of the non-moving party
and may not make credibility determinations or
weigh the evidence. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000) (applying
same rule in cases under FED. R. CIV. P. 50 and 56).
9 There are indications on the record that Complainant did not
file his OSHA complaint until September 8, 2018. But an OSHA
cover letter dated September 11, 2018, referred to a SOX com
plaint that Complainant filed with OSHA on July 18, 2018.
A.Ex. A. For purposes of summary decision, I accept as undisputed
that Complainant filed the SOX complaint on July 18, 2018;
that he amended the complaint to assert claims under the other
statutes; and that the amendments relate back to the July 18,
2018 filing date.
App.30a
A moving party without the ultimate burden
of persuasion at trial. . . has both the initial
burden of production and the ultimate burden
of persuasion on a motion for summary
judgment. In order to carry its burden of
production, the moving party must either
produce evidence negating an essential ele
ment of the nonmoving party’s claim or
defense or show that the nonmoving party
does not have enough evidence of an essential
element to carry its ultimate burden of
persuasion at trial. In order to carry its ulti
mate burden of persuasion on the motion,
the moving party must persuade the court
that there is no genuine issue of material
fact.
If a moving party fails to carry its initial
burden of production, the nonmoving party
has no obligation to produce anything, even
if the nonmoving party would have the ulti
mate burden of persuasion at trial. In such
a case, the nonmoving party may defeat the
motion for summary judgment without pro
ducing anything.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d
1099, 1102-03 (9th Cir. 2000) (citations omitted).10
10 As the court further explains: “If, however, a moving party
carries its burden of production, the nonmoving party must
produce evidence to support its claim or defense. If the
nonmoving party fails to produce enough evidence to create a
genuine issue of material fact, the moving party wins the
motion for summary judgment. But if the nonmoving party
produces enough evidence to create a genuine issue of material
App.31a
I. Certain of Complainant’s Environmental
Whistleblower Complaints Are Time-Barred.
“[W]ithin 30 days after an alleged violation . . . ,
an employee who believes that he or she has been
retaliated against . . . may file, or have filed by any
person on the employee’s behalf, a complaint alleging
such retaliation” with OSHA. 29 C.F.R. § 24.103(d)(1)
(implementing the timeliness provisions of the Federal
Water Pollution Control Act, 33 U.S.C. § 1367(b); the
Clean Air Act, 42 U.S.C. § 7622(b)(1); the Toxic Sub
stances Control Act, 15 U.S.C. § 2622(b)(1); the Solid
Waste Disposal Act, 42 U.S.C. § 6971(b); and the
CERCLA (Superfund Act), 42 U.S.C. § 9610(b)).
Here, Apex Systems notified Complainant of his
termination from employment on May 29, 2018. The
30-day limitations period ran on Thursday, June 28,
2018. At the earliest, Complainant filed a complaint
with OSHA on July 18, 2018. Because Complainant
failed to file his OSHA complaint within 30 days
after he was notified of the termination, Complainant’s
complaint under these several statutes was untimely.
Complainant misplaces his reliance on Passaic
Valley Sewerage Comm, v. U.S. Dep’t of Labor, 992
F.2d 474 (3d Cir. 1993). That case concerns the
entities and persons to whom a person may blow the
whistle and be protected under the statute. The issue
here is not what activity is protected; the issue is
whether Complainant timely filed with OSHA a com
plaint that his rights as a whistleblower had been
violated.
fact, the nonmoving party defeats the motion.” Nissan Fire &
Marine Ins. Co., 210 F.3d at 1103 (citations omitted).
App.32a
I therefore find time-barred Complainant’s claims
under the Federal Water Pollution Control Act, the
Clean Air Act, the Toxic Substances Control Act, the
Solid Waste Disposal Act, and CERCLA.11
II. Respondents Are Not Employers Within
the Energy Reorganization Act.
The obligation to protect whistleblowers under
the Energy Reorganization Act applies only to certain
entities or persons to which the Act refers as an
“employer.” See 42 U.S.C. §§ 5851(a)(1) (“No employer
may discharge any employee or otherwise discriminate
against any employee . . . because [he has engaged in
protected activity]”). “Employer” is defined as:
(A) a licensee of the [Nuclear Regulatory] Com
mission 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 Commis
sion or such an agreement State;
(C) a contractor or subcontractor of such a licensee
or applicant;
(D) a contractor or subcontractor of the Depart
ment 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;
H Represented by counsel, Complainant offers no facts or argu
ment to demonstrate an entitlement to equitable tolling.
App.33a
(E) a contractor or subcontractor of the Com
mission;
(F) the Commission; and
(G) the Department of Energy.
42 U.S.C. §§ 5851(a)(2)(A)-(G).
Both Apex Systems and General Dynamics argue
that they are not employers within the statutory
definition. Complainant does not dispute this. The
record is devoid of any evidence that would bring
either Respondent within the ERA’s coverage.
Complainant’s claim under the Energy Reorganization
Act therefore must be denied. 12
III. Complainant’s SOX Claim Fails.
The Sarbanes-Oxley Act protects employees of
publicly traded companies and their contractors and
agents. The Act prohibits these companies from
retaliating against employees who report certain
specified forms of fraud or violations of rules or
regulations of the Securities and Exchange Commis
sion. To be protected activity, the reports must be
made to federal regulatory or enforcement agencies,
members of Congress, or supervisors or other com
pany officials who can address the reported concerns.
See 18 U.S.C. § 1514A(a)(l); 29 C.F.R. § 1980.102(b)(1).
The Act incorporates the procedures and burdenshifting framework of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, 49
U.S.C. § 42121 (“AIR-21”). See 18 U.S.C. § 1514A(b)(2).
12 Complainant’s claims under the ERA also fail for the same
reasons as does his claim under Sarbanes-Oxley. See text below.
In the alternative, I therefore also deny this claim on that basis.
App.34a
Under the AIR-21 framework, a complainant must
demonstrate by a preponderance of the evidence that:
(1) he engaged in protected activity or
conduct; (2) his employer knew or suspected,
actually or constructively, that he engaged
in the protected activity; (3) he suffered an
unfavorable personnel action; and (4) the
circumstances were sufficient to raise an
inference that the protected activity was a
contributing factor in the unfavorable action.
Tides v. Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011).13
If the complainant meets his burden, then “the
employer assumes the burden of demonstrating by
clear and convincing evidence that it would have
taken the same adverse employment action in the
absence of the [complainant’s] protected activity.” Id.
(quoting Van Asdale v. Int’l Game Tech., 577 F.3d
989 (9th Cir. 2009).
A. Complainant Did Not Engage in Protected
Activity before the Termination.
Protected activity. To be protected activity, the
employee need not make a report that “definitively
and specifically” states how the company’s actions
are fraud (within the statute) or a violation of the
13 Ninth Circuit law is controlling. AIR-21 rules and proce
dures apply to SOX. See text, supra. Under AIR-21, an appeal
from a final order of the U.S. Department of Labor is to the U.S.
Court of Appeals for the circuit in which the violation allegedly
occurred or where the complainant resided on the date of the
violation. 49 U.S.C. § 42121(b)(4)(A). Complainant resided in
California at the relevant time, and he received notice of the
termination in California. This places any appeal in the Ninth
Circuit.
App.35a
securities rules and regulations. Sylvester v. Paraxel
Int’l LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-29,
2007-SOX-42, PDF at 17 (ARB May 25, 2011).14 The
14 There is no requirement that the employee’s communication
“definitively and specifically” relate to one of the listed catego
ries of fraud or securities violations. See Sylvester v. Parexel
Int’l LLC, ARB Case No. 07-123 (May 25, 2011), slip. op. at 1415, 2011 WL 165854 (2011). In Sylvester, the Administrative
Review Board overruled its previous decision in Platone v.
FLYi, Inc., ARB No. 04-154, ALJ No. 2003-SOX-27 (Sept. 29,
2006). As the Board explained, Platone erroneously imported
the “definitively and specifically’ requirement from the Energy
Reorganization Act, 42 U.S.C.A. § 5851, where certain broad,
ill-defined language necessitated a more specific showing to link
the subject of the employee’s complaint to the purposes of the
statute. In the Board’s view, Sarbanes-Oxley’s language is
better defined and does not require further specific or definitive
connection to the statutory purpose.
In the only available post-Sylvester decision to address the
issue in the Courts of Appeals, the Third Circuit accorded
Sylvester deference under Chevron U.S.A., Inc. v. Natural
. Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), and
no longer requires a showing that the communication relate
“definitively and specifically’ to a listed category of fraud or
securities violations. See Wiest v. Lynch, 710 F.3d 121, 131 (3d
Cir. 2013) (“We conclude that the ARB’s rejection of Platone’s
“definitive and specific” standard is entitled to Chevron deference”).
I am aware that, before Sylvester, the Ninth Circuit, which is
controlling here, joined other Circuits in according deference to
the ARB’s holding in Platone. See Van Asdale, supra, 577 F.3d
at 996. I conclude that, as did the Third Circuit, the Ninth
Circuit, if addressing this issue post-Sylvester, would continue
to follow the Supreme Court’s deference doctrine, would defer to
the Administrative Review Board’s more recent Sylvester deci
sion, and would reject any requirement that a complainant must
show that her complaint relates “definitively and specifically’ to
one of the six listed categories of fraud or securities violations.
In this case, however, if I am in error about the Ninth
Circuit’s view of Sylvester, the error is harmless. My error
App.36a
crux of the inquiry is “whether the employee reported
conduct that he or she reasonably believes” is a SOX
violation. Id. at 19.
“Reasonable belief’ of a violation requires a
complainant to hold (1) “a subjective belief that the
complained-of conduct constitutes a violation of relevant
law” and (2) an “objectively reasonable” belief. Id. at
14. Under the subjective component of this “reasonable
belief’ test, “the employee must actually have believed
that the conduct he complained of constituted a viola
tion of relevant law.” Id. “In this regard, ‘the plaintiffs
particular educational background and sophistication
[is] relevant.’” Id. at 14-15 (citation omitted). The
objective component “is evaluated based on the know
ledge available to a reasonable person in the same
factual circumstances with the same training and
experience as the aggrieved employee.” Id. at 15.
“Often the issue of ‘objective reasonableness’ involves
factual issues and cannot be decided in the absence
of an adjudicatory hearing.” Id.
Here, Complainant asserts as protected activity
his contact with Rob Thomas at EPA on April 13,
2018. Complainant’s Brief at 4 (citing an exhibit not
on. the record). He argues that his communications
with Thomas on that day reported a cybersecurity
risk and also again discussed how a lack of access to
the source code repository was wasting federal funds
because the repository had to be recreated. But SOX
would advantage Complainant because the Sylvester analysis
lessens the burden for complainants. As I am granting sum
mary decision, the result would be the same under Van Asdale
and Platone.
App.37a
whistleblower protection does not extend to cyber
security risks or a waste of government funds.
As the First Circuit explained:
The plain language of SOX does not provide
protection for any type of information provided
by an employee but restricts the employee’s
protection to information only about certain
types of conduct. Those types of conduct fall
into three broad categories: (1) a violation of
[certain] specified federal criminal fraud
statutes . . . ; (2) a violation of any rule or
regulation of the SEC; and/or (3) a violation
of any provision of federal law relating to
fraud against shareholders. The first and
third categories share a common denominator:
that the conduct involves “fraud,” and many
of the second category claims (violations of
SEC rules or regulations) will also involve
fraud.
***
]
[
“Fraud” itself has defined legal meanings
and is not, in the context of SOX, a colloquial
term. “The hallmarks of fraud are misrep
resentation or deceit.” That is the dictionary
definition, as well. See Black’s Law Dictionary
685 (8th ed. 2004) (defining fraud as the
“knowing misrepresentation of the truth or
concealment of a material fact to induce
another to act to his or her detriment”).
Day v. Staples, Inc., 555 F.3d 42, 54-55 (1st Cir. 2009)
(citations omitted).
App.38a
Complainant did not need to use words such as
“securities fraud” or “mail fraud” or “wire fraud.” He
did not need to say he thought this was a violation
of “SEC Rule 10b-5” or of “17 C.F.R. § 240.10b-5”
or of any other enumerated regulation or statute.
See Sylvester, supra. But, as the emails establish,
Complainant wrote to the EPA only about a cyber
security concern and perhaps about government waste.
He alleged nothing about those concerns that is
suggestive or fraud or a violation of securities laws.
Indeed, the EPA’s Thomas knew about and directed
CSRA to reconstruct the repository despite the cost;
he was not deceived. 15
Complainant offers no evidence and does not argue
in his opposition to summary decision that he engaged
in any other protected activity. Indeed, Complainant
did not submit any evidence whatever with his oppo
sition to summary decision.He did not even submit
15 EPA’s Thomas was kept informed throughout about the
difficulty CSRA was having in getting the complete repository
from Salient. Campbell copied Thomas on emails. It was
Thomas who requested of CSRA that Complainant be assigned
to reconstruct the repository; i.e., the government knew what it
was paying for and why, but it chose to pay anyway. Even if
that was wasteful, there was no fraud in which CSRA or anyone
could be involved.
1® In his brief, Complainant cites evidence which Respondents
submitted. He also cites exhibits that neither he nor any other
party put on the record. On summary decision, “[i]f a party fails
to properly support an assertion of fact or fails to properly
address another party’s assertion of fact,” the AU may “[g]rant
summary decision if the motion and supporting materials—
including the facts considered undisputed—show that the
movant is entitled to it.. . . ” 29 C.F.R. J 18.72(e)(3).
App.39a
a declaration, reciting his account of the relevant
events.
B. If Complainant Engaged in Protected
Activity, That Activity Was Not a Con
tributing Factor in the Termination.
There is no dispute that General Dynamics
decided by April 9, 2018, that it would remove
Complainant from the Portal project. It informed
Apex of the decision on that date. It asked Apex to
find a replacement. Under Apex’s policies, the effect
of Complainant’s removal from the Portal project was
the termination of his employment with Apex: As a
staffing agency, Apex hired people to work on a
particular project for a particular client, and when
the client removed the person from the project, that
ended the employment. G.D.Ex. 4 1) 5. The termination
was not effectuated until May 29, 2018, when Apex
found a replacement. But General Dynamics conclu
sively communicated the decision to Apex on April 9,
2018.
Complainant offers no evidence or argument to
show protected activity before April 13, 2018.17 Thus,
even if Complainant engaged in protected activity,
the activity was after the decision to terminate and
could not have contributed to that decision. As it is
Complainant’s burden to establish by a preponderance
of the evidence that his protected activity was a con
tributing factor in the adverse action and Complain17 The record also includes Complainant’s continuing com
plaints after his actual termination on May 29, 2018. These
complaints even more obviously could not have contributed to
the decision to terminate, a decision that had already been
made and implemented.
App.40a
ant has failed to offer any evidence to raise a genuine
issue of fact in this regard, his SOX-based claim fails.
CONCLUSION AND ORDER
For the foregoing reasons, Respondents’ motions
for summary decision each are GRANTED. Complainant’s
complaint is DENIED in its entirety.
SO ORDERED.
/si Steven B. Berlin
Administrative Law Judge
App.41a
ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT DENYING PETITION FOR
REHEARING EN BANC
(JANUARY 25, 2022)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK LECKNER,
Petitioner,
v.
GENERAL DYNAMICS INFORMATION
TECHNOLOGY; ET AL.,
Respondents.
No. 21-70284
ARB Case No. 2020-0028
Before: TALLMAN, RAWLINSON, and
BUMATAY, Circuit Judges
To the extent Leckner requests that any member
of the panel be recused from this matter, the request
is denied. See Code of Conduct for U.S. Judges Canon
3C(3)(c)(i) (“ownership in a mutual or common
investment fund that holds securities is not a ‘financial
interest’ in such securities unless the judge participates
App.42a
in the management of the fund”). No judge so partici
pates.
The panel has voted to deny the petition for panel
rehearing.
The full court has been advised of the petition
for rehearing en banc and no judge has requested a
vote on whether to rehear the matter en banc. See Fed.
R. App. P. 35.
Leckner’s petition for panel rehearing and petition
for rehearing en banc (Docket Entry No. 63) are denied.
No further filings will be entertained in this closed
case.
App.43a
ORDER OF THE U.S. DEPARTMENT OF
LABOR DENYING RECONSIDERATION
(DECEMBER 15, 2020)
U.S. DEPARTMENT OF LABOR
Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
In the Matter of: ERIK LECKNER,
Complainant,
v.
GENERAL DYNAMICS INFORMATION
TECHNOLOGY, INC. (formerly CSRA),
and
APEX SYSTEMS, LLC,
Respondents.
ARB Case No. 2020-0028
ALJ Case No. 2019-SOX-00028
Date: December 15, 2020
Before: James D. MCGINLEY, Chief Administrative
Appeals Judge and Randel K. JOHNSON,
Administrative Appeals Judge.
The Complainant, Erik Leckner, filed a retaliation
complaint alleging that Respondents General Dynamics
App.44a
Information Technology, Inc. (GDIT) and Apex Systems,
LLC (Apex) violated the employee protection provisions
of the Clean Air Act,l Comprehensive Environmental
Response, Compensation, and Liability Act,2 Solid
Waste Disposal Act,3 Toxic Substances Control Act,4
Federal Water Pollution Control Act5 (collectively,
the Environmental Acts), Energy Reorganization Act
(ERA),6 and Sarbanes-Oxley Act (SOX)7 by discharging
him from employment.
On January 23, 2020, an Administrative Law
Judge (ALJ) dismissed the complaint in a decision
granting Respondents’ Motions for Summary Decision.
On October 22, 2020, we issued a Decision and Order
(Decision) affirming the ALJ’s conclusions that there
was no genuine issue of material fact as to whether
Leckner (1) timely filed his complaint under the
Environmental Acts; (2) worked for an entity defined
as an employer under the ERA; or (3) engaged in pro
tected activity under the SOX. On October 30, 2020,
Leckner filed a Petition for Reconsideration (Petition)
seeking reconsideration of our Decision.
The ARB is authorized to reconsider a decision
upon filing of a motion for reconsideration within a
1 42 U.S.C. § 7622 (1977).
2 42 U.S.C. § 9610 (1980).
3 42 U.S.C. § 6971 (1980).
4 15 U.S.C. §2622 (1986).
5 33 U.S.C. § 1367 (1972).
6 42 U.S.C. § 5851 (2005).
7 18 U.S.C. §1514A (2010).
App.45a
reasonable time of the date of which the decision was
issued. 8 We will reconsider our decisions under limited
circumstances, which include: (i) material differences
in fact or law from those presented to a court of
which the moving party could not have known through
reasonable diligence, (ii) new material facts that
occurred after the court’s decision, (iii) a change in
the law after the court’s decision, or (iv) failure to
consider material facts presented to the court before
its decision.9
Leckner asserts that we should reconsider our
Decision because we failed to consider evidence he
presented on appeal.10 As we explained, he did not
present any exhibits in responding to Respondents’
Motions for Summary Decision and he did not explain
why he was unable to do so.11 Leckner also asserts
that he engaged in SOX and ERA-protected activities
and his claims under the Environmental Acts were
timely.12 We considered and rejected those arguments
in our Decision.10
In sum, none of Leckner’s arguments fall within
any of the four limited circumstances under which
8 Rosenfeld v. Cox Enters., Inc., ARB No. 2016-0026, ALJ No. 2014SOX-00033, slip op. at 2 (ARB May 26, 2017) (citing Henrich v.
Ecolab, Inc., ARB No. 2005-0030, ALJ No. 2004-SOX-00051, slip
op. at 2-4 (ARB May 30, 2007)).
0 Id. at 2-3.
10 Petition at 5, 34.
11 Decision at 5, n.10.
12 Petition at 22, 30.
10 Decision at 4-7.
App.46a
we will reconsider our decisions. Therefore, we DENY
his Petition. Leckner may appeal our Decision as
described in the regulations at 29 C.F.R. §§ 24.112
(judicial review under the Environmental Acts and
ERA) and 1980.112 (judicial review under the SOX).
SO ORDERED.
App.47a
EXHIBIT I
INITIAL COMPLAINT
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EPA (OSHA Federal Partner Agency)
Whistleblower Calls (May 31,2018)
App.48a
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United States Environmental
Protection Agency
Washington, D.C. 20460
pROt^°
June 7, 2018
Memorandum
Subject: Office of Inspector General Hotline
Complaint 2018-0285
From:
Special Agent, Hotline Manager
Headquarters, Office of Inspector General
To: Patrick Sullivan
Assistant Inspector General
Office of Investigations
The Environmental Protection Agency (EPA),
Office of Inspector General (OIG), Hotline received a
telephone from an unknown EPA contractor. The
caller wanted to report contract fraud for a CSRA
contract in RTP. The caller sent an electronic message
detailing concerns with the contractor’s activities.
The caller email is imetro@yaboo.com and the
phone number he called from is 949-244-6501. The
caller resides in California and is being sent an email
informing that this has been sent to the RTP Field
Office.
Please inform the Hotline within the next 5
calendar days that this referral was received. Ifyou
have any further questions, please call me at
App.49a
From: I Metro <imetro@yahoo.com>
Sent: Tuesday, June 05, 2018 6:39 PM
To:
Subject: Re~EPA QIG Hotline Point of Contact
Special Agent:
US EPA. OIG. Office of Investigations HQ
1200 Pennsylvania Ave NW Mailcode 2431T
Washington. DC 20460
Dear
I have extensive experience in software engineer
ing with over 23 years of post-university experience,
plus 3 years of work while in graduate school at
NRL/NASA in software engineering. There is nothing
that can go undetected or that I have a lack of
experience of in the particular technology stack being
used at the EPA.
1. CSRA is over billing the EPA in Durham
NC/Raleigh NC on government contracts. In writing
from Project Managers via epa.gov emails, in skype
meetings, and on telephone calls, the PM is allowing
for this activity to occur. In emails and in discussions,
the PM has gone as far as stating it is the practice of
charging more than is legally or ethically acceptable
on work related items, The EPA Project Leader is an
EPA employee. I know for fact that the EPA project
leader is not responsible for this and tried unsuccess
fully at times to see certain work orders performed
with proper SLA terms. On this one project alone.
CSRA now has a history of over-billing the EPA federal
government agency, has questionable internal busi
ness practices and failed to provide quality service
App.50a
that seriously undermines its ability to perform the
EPA contract
2 EPA has numerous security vulnerabilities that
have been at least one of the following:
a)
gone undetected for years (up to perhaps 14
years);
b)
un-escalated when discussed in emails and
meetings and IIRA tickets by myself when I
detected these vulnerabilities which can occur
in development, staging, and product servers
like lava and fractal;
c)
ignored by CSRA PM; and
d)
improperly handled by resolution.
The also include security vulnerabilities for DDoS
attacks Given that CSRA manages the Oracle Access
and Identity Management systems, these vulner
abilities may even apply to projects outside of the
project in question
3. CSRA does not meet the integrity and business
ethics for the EPA EMP project. Several of CSRA’s
employees come from CSC, which also has a history
and CSC has been criminally convicted for lying to
other agencies including the FAA regarding security
issues, and was found to have over-billed the FAA.
4. 14 years of code base disappeared by CSRAs
failure to retrieve the proper source code repository
from Salient CGRT which was the prime contractor
prior to CSRA. Prior to Salient, Lockheed was on the
project. Under my recommendations, CSRA inten
tionally failed to retrieve the code. EPA Project
Leader had to force CSRA PM to get it from Salient
App.51a
and after the last attempt to get the right thing,
failed to go on my next recommendation which was
where I would give Salient step by step instructions
on how to recover the code that has riot been retrieved
from previous contractor.
5. CSRA has a resource which lacks the creden
tials to perform the right duties in her role and has
cost the government 4.5 months of labor (being billed
but no work being produced).
If interested, we can discuss further.
App.52a
United States Environmental
I Protection Agency
I Office of Inspector General
jk 109 TW Alexander Drive
P Research Triangle Park, NC 27711
Case #: OI-RTP-2018Title: CSRA LLC, Falls Church, VA
Prepared by: SA
Case Initiation
Subject(s)
Location
CSRA LLC
Durham, NC
Other Data
Narrative:
On June 7, 2018, the Environmental Protection
Agency, Office of Inspector General (EPA OIG), Hotline
received a telephone call from an unknown EPA con
tractor (complainant). The complainant alleged contract
fraud by CSRA LLC, an EPA contractor in Research
Triangle Park (RTP), NC. The complainant then sent
an email detailing his concerns (see attachment). In
his email the complainant alleged CSRA was “over
billing the EPA in Durham NC/Raleigh NC on gov
ernment contracts”. No details and/or evidence regard
ing the “over billing” was provided. The complainant
also alleged “EPA has numerous security vulnerabil
ities”. The complainant provided a phone number and
email address.
Attachment:
1. Hotline Referral #2018-0285
2018-0285 referral.pdf
App.53a
EXHIBIT II
OBJECTIONS TO THE FINDINGS AND
REQUEST FOR A HEARING,
RELEVANT EXCERPTS
(“REQUEST”)
UNITED STATES DEPARTMENT OF LABOR
BEFORE THE ADMINISTRATIVE LAW JUDGE
(ALJ)
ERIK LECKNER,
Complainant,
v.
GENERAL DYNAMICS (GD), GENERAL
DYNAMICS INFORMATION TECHNOLOGY
(GDIT), CSRA, AND APEX SYSTEMS,
Respondents.
Case No. 4-3750-18-155
OBJECTION TO THE FINDINGS AND
REQUEST FOR A HEARING
To great relief, Erik Leckner (hereinafter “Com
plainant”) hereby files the Complainant’s objections
to the findings and requests for a hearing by the ALJ
in California where Complainant resides and worked
at all times during employment of Apex / General
App.54a
Dynamics / CSRA. Complainant had worked out of the
San Diego EPA office and his own company’s office.
FILING OF RETALIATION COMPLAINTS
Complainant was retaliated against by Respond
ents in violation of at least the following regulatory
acts:
i)
Section 806 of the Corporate and Criminal
Fraud Accountability Act of 2002, Title VII
of the Sarbanes-Oxley Act of 2002, 18 U.S.C.
1514A (SOX);
ii)
Section 211 of the Energy Reorganization
Act (ERA), 42 U.S.C. Section 5851;
iii)
Section 507(a) of the Federal Water Pollution
Control Act (FWPCA), 33 U.S.C. Section 1367;
iv)
Section 322(a) of the Clean Air Act (CAA),
42 U.S.C. Section 7622;
v)
Section 32(a) of the Toxic Substances Control
Act (TSCA), 15 U.S.C. Section 2622;
vi)
Section 7001(a) of the Solid Waste Disposal
Act (SWDA), 42 U.S.C. Section 6971; and
vii) Section 110(a) of the Comprehensive Environ
mental Response, Compensation, and Liability
Act (CERCLA), 42 U.S.C. Section 9610.
Complainant filed United States (U.S.) Depart
ment of Labor (DOL) Occupational Safety and Health
Administration (OSHA) complaints in one in June
2018, one in September 2018, two in January 2019,
and one in February 2019 both orally and in writing.
Complainant received back only two case acknow
ledgements by U.S. DOL OSHA although four or more
App.55a
were filed as two were filed the same day in January
2019 as we will be demonstrated below via evidence.
Between said first and second complaint, Complainant
further filed a complaint with the EPA Office of
Inspector General (OIG) and the SEC. Complainant
further filed a complaint with the NEC, the FBI, and
the DOJ.
EPA OIG (where Complainant discussed with
EPA OIG on June 12, 2018, that he had contacted
OSHA prior to even opening the EPA OIG investi
gation):
On Tuesday, June 12, 2018 5:08 PM,
I Metro <imetro@vahoo.com> wrote:
Home Page I Whistleblower Protection Program
File a complaint if your employer has retali
ated against you for exercising your rights as
an employee.
[...]
. . . investigation as evidence will be presented in the
President’s investigation, regardless of OSHA, in
public hearings, and in ALJ hearing.
Furthermore, the OSHA Region 4 investigation
simply ignored that Complainant was specifically
required to not whistle blow above Campbell immedi
ately following Complainant‘s whistle blowing to the
EPA for which he was instructed to officially request
that Campbell and Childers and Spradling perform
their obligations and duties to the EPA:
Dominique N. Reed <dreed@anexsvstems.com>
To: I Metro, Dominique N. Reed
Apr 16 at 8:48 PM
App.56a
Christian,
Thank you for your emails. I informed the
team that we spoke and let them know you
would go to Ed for any escalation.
Please Cc me on communication. I will review
your emails.
Thank you,
Dominique
Sent from phone please excuse autocorrect.
Yet even furthermore, Complainant had whistleblown the failure of CSRA/General Dynamics to per
form their obligations of retrieving the source code
repository both in the transition period and in the
project period (highlighted below) and failure to provide
required access, over billing, charging even on simple
development machine setup, charging for idle timeall of which is fraud/false claims, whilst harassing and
retaliating against Complainant-as General Dynamics
and CSRA staff were fully aware of the implications
of billing for no services being provided by certain
EMP team members:
From: Thomas, Rob
Sent: Friday, April 13
... I figured as much for the repository.
That’s the Government’s code. We are owed
that code.
This has to be noted on their lack luster
approach to support EMP.
Thanks.
Rob
App.57a
From: Thomas, Rob
Sent: Friday, April 13, 2018 6:21 PM
To: Leckner, Erik
<Leckner.Erik@usepa.onmicrosoft.com>
Subject: RE: Group emp on staging access
for eleckner, Rakhi
Hey Christian.
I read the email thread, it’s unacceptable of
the responses you and Ed received. People
are in these Federal Contract positions and
you have to see responses like you’re in high
school. There should be set procedures and
communication templates with a hard line
stance on usage. They make difficult for them
selves. This is something I need to speak to
Ed about and then go up their chain of com
mand. This makes EPA looks more than
bad ... they’re burning federal resources and
what is the result. Thanks.
Rob
From: Thomas, Rob
Sent: Friday, April 13, 2018 6:14 PM
To: Leckner, Erik
<Leckner.Erik@usepa.onmicrosoft.com>
Subject: RE: Group emp on staging access
for eleckner, Rakhi
Hi Christian.
Awesome! After 2 or 3 times with a hour or
so gap in between them . . . you level up to
the chain of command that you speak of via
Ed. I want those names gone like yesterday
. . . this is unacceptable.
App.58a
I picked that up when I spoke to you. I’m
the same way . . . there are milestones, pro
tocols, and procedures to almost everything.
This NCC group has broken them and it
showed on the survey I completed. Fm pushing
for SLA on inside technical support.
Thanks.
j
|j
From: Leckner, Erik
Sent: Friday, April 13, 2018 6:02 PM
To: Thomas, Rob <Thomas.Rob@ena.gov>
Subject: RE: Group emp on staging access for
eleckner, Rakhi
j
Hi Rob,
;
I shall do ASAP (next email out now). I
mentioned this several times to them in
emails. As you can see names are still there.
My recommendation between you and I
is this:
Someone from CSRA is appointed high up
that can make sure NCC/WAM perform
things that are required much faster. This
way they can coordinate with EMP CSRA
team and get things done fast (like I am
accustomed to in the F500 world and the
tech startup world. My background is with
Verizon, Boeing, NASA, NRL, Google Digital
Marketing Partner, Nissan/Infiniti, ATT/
iPass, Tango.me (mobile app similar to skype)
with 400M+ in funding, TIBCO, Seagate
Technology, Ericsson, Fujitsu, ADP, United
Health, Capital Group Companies (managing
App.59a
$3T in assets for mutual funds), and others
Between you and I, never seen anything this
slow.
At United Health, for example, 1 hour to get
up and running but diff situation. We were
writing code the first day (all experienced
engineers).
At ADP, 1 day (because we had to integrate
Eclipse with Websphere)
At Capital Group, no time (since it was setup
prior to me starting)
Christian Leckner
Principal Engineer ITS-EPA | CSRA
San Diego, CA 92028 | PDT
949-244-6501 | leckner.erik@epa.gov
From: Thomas, Rob
Sent: Friday, April 13, 2018 5:50 PM
To: Leckner, Erik
<Leckner.Erik@usepa.onmicrosoft.com>
Subject: RE: Group emp on staging access
for eleckner, Rakhi
Hi Christian.
Make sure you inform Ed of this behavior
from NCC. So he can have those names
removed. Their contract was cancelled and
some of those 5 user name need to removed,
yesterday. This violates FISMA NIST 800-53
Rev 4 Security Controls on proper user access.
Thanks.
App.60a
Rob
From: Leckner, Erik
Sent: Friday, April 13, 2018 5:40 PM
To: Thomas, Rob <Thomas.Rob@ena.gov>
Subject: RE: Group emp on staging access
for eleckner, Rakhi
Hi Rob
One other thing to note-if you look at the
bottom right of the BEFORE image inserted
here, you will see that prior to the change, I
ran a group info linux command and saw
that salient development team was still on
the group (but new dev wasn’t).
That was one of the issues. So if you recall,
you, I, and Ed all requested to the NCC that
we needed access. Initially it was sudo
jdaemon priv, then it was an alternative
user, and also group access.
Christian Leckner
Principal Engineer
ITS-EPA | CSRA
San Diego, CA 92028 | PDT
949-244-6501 | leckner.erik@ena.gov
From: Thomas, Rob
Sent: Thursday, April 5, 2018 5:10 PM
To: Leckner, Erik
<Leckner. Erik@usena.onmicrosoft.com>
Subject: RE: Group emp on staging access
for eleckner, Rakhi
Keep me posted for any actions I need to
approve of. I agree we need to have the same
rights, access, permissions at the previous
App.61a
contractor. Even as they developed offsite.
LOL.
Rob
From: Leckner, Erik
Sent: Thursday, April 5, 2018 5:04 PM
To: Thomas, Rob <Thomas.Rob@epa.gov>
Subject: FW: Group emp on staging access
for eleckner, Rakhi
Hi Rob
I put you on bcc for this thread, since it has
been very difficult getting Dan/Paula to prop
erly grant us staging access to see the files
there. We’re working on it steadfast here,
just wanted to keep you in the loop (in bcc).
Christian Leckner
Principal Engineer
ITS-EPA | CSRA
San Diego, CA 92028 | PDT
949-244-6501 | leckner.erik@epa.gov
Furthermore, it is obvious that Complainant had
whistle blown the destruction of the source code
repository by Page and Campbell or otherwise Thomas
(EPA) would never have written the following:
From: Thomas, Rob
Sent: Friday, April 13
I figured as much for the repository. That’s
the Government’s code. We are owed that
code
“I figured as much” is clearly a response to Complain
ant’s whistle blowing. Complainant made it very clear
numerous times in his original complaints and
App.62a
responses. In addition to this, Thomas (EPA) clearly
stated the following, and was provided as evidence in
numerous places in Response, Addendum, and Final
Supplemental Response:
Hey Christian.
You’d be surprised why they wouldn’t. Glad
to read progress is being made finally. SMH.
So we still have keys to be reset?
It should not have taken 2 months to get
access to those accts.
From: Thomas, Rob
Sent: Friday, April 13
That’s good to know. That’s correct. I figured
as much for the repository . . .
Clearly, simple access for already authorized accesses
in order for Complainant to perform his required
duties which had taken 2 months, and other intentional
and deliberate delays is considered false claims to the
Federal Government (EPA), as the EMP team depen
ded on said accesses to perform their work. Without a
new repository which Complainant had to reconstruct
without version history, certain EMP staff such as
Rakhi Nair, and others could not have performed any
actual development, nor delivered any new addi
tional code, and therefore, could not have even billed
the government for EMP software development work
as code is designed, developed, tested at unit level,
system level, and actual staging/production level and
none of it
[....]
App.63a
EXHIBIT III
RETALIATION
Evidence that termination is based on employer
knowledge of EPA customer communications on
a protected channel.
From: Page, Alison <Page.Alison@epa.gov>
Sent: Monday, April 16, 2018 1:55 PM
To: Bennett, Jerry <Jerry.Bennett@csra.com>
Subject: FW: Christian Escalation
Hey Jerry,
Just wanted to give you a heads up that we’re
looking to replace Christian Leckner-he’s really gotten
out of control with his communications and it’s over
flowing to the customer at this point. We’re working
with Dominique on this process.
Thanks,
Ali Page
ITS-EPA III CSRA
79 TW Alexander Dr, Bid 4401, NC 27713
page.alison@epa.gov I (o) 919.200.7283
http://intranet.epa.gov/webdev
Evidence that termination is based on employer
knowledge.
From: Leckner, Erik
Sent: Monday, April 16, 20181:14 PM
To: Campbell, Ed <Campbell.Ed@epa.gov>
Subject: RE: NCC
App.64a
On Friday, he sent that to me. It was end of
week so I guess he wanted to reach out to discuss his
thoughts on the NCC.
Christian Leckner
Principal Engineer
ITS-EPA | CSRA
San Diego, CA 92028 J PDT
949-244-6501 | leckner.erik@epa.gov
From: Campbell, Ed
Sent: Monday, April 16, 2018 9:40 AM
To: Leckner, Erik
<Leckner.Erik@usepa.onmic:rosoft.com>
Subject: RE: NCC
Christian,
Where are you quoting this from? Is this some
correspondence with Rob that I didn’t see?
From: Leckner, Erik
Sent: Friday, April 13, 2018 6:05 PM
To: Campbell, Ed <Campbell.Ed@epa.gov>
Subject:-NCC
Importance: High
Hello Ed,
Rob mentioned to me that NCC needs to remove
from all groups on all machines Salient developers
and was asked by Rob to inform you of this. Salient
is still in Linux groups even though they are most
likely to have their access/login revoked when they
left.
App.65a
“Their contract was cancelled and some of those
5 user name need to removed, yesterday. This violates
FISMA NIST 800-53 Rev 4 Security Controls on
proper user access.”
Christian Leckner
Principal Engineer
From: Campbell, Ed
Sent: Monday, April 16, 2018 1:44 PM
To: Leckner, Erik
<Leckner.Erik@useoa.onmicrosoft.com>
Cc: Page, Alison <Page.Alison@epa.gov>
Subject: RE: NCC
Christian,
To be clear. Please do not communicate to Rob
without me/Colleen CC-ed. It’s not okay for you to
escalate your problems with the staff directly to our
customer without running your thoughts/questions
through us first. Paula asked for 20 hours to do the
initial configuration on our server and she has not
had 20 hours yet. She was working on this on Friday.
Ed Campbell
ITS-EPA III GDIT
79 TW Alexander Dr, Bid 4401, NC 27713
campbell.ed@eoa.gov | (o) 919.200.7243
http://intranet.epa.gov/webdev
From: Leckner, Erik
Sent: Monday, April 16, 2018 1:22 PM
To: Campbell, Ed <Campbell.Ed@epa.gov>
Subject: RE: NCC
App.66a
Hi Ed
Please ask NCC remove all references to previous
developers from groups where lanids are present.
Rob asked me to tell you this on Friday afternoon,
along with his many thoughts on how NCC is
responding to our simple requests. In summary, he
asked:
a)
NCC immediately remove all lanids from
Salient on all systems
b)
NCC stops replying to you and I like they
were in high school (this is reference to
LeAnn and Paula)-he mentioned if they do
this again, he will call a meeting with
Paula, Ali, etc and other EPA staff (either
that he works with or higher up)
c)
He wants much better SLA response timesthey should be acting on our EMP requests
within 1-2 hours ideally, not as it has been.
Christian Leckner
Principal Engineer
ITS-EPA | CSRA
Evidence before April 9 that termination is based
on employer knowledge-note here also how Page
refers to required accesses as battles, causing
occupational safety and health heart related
issues, using language such as ass and incorrect
on items-Page is a supervisor-protected activity.
From: Page, Alison
Sent: Monday, April 6, 2018 2:38 PM
To: Campbell, Ed <Campbell.Ed@epa.gov> Leckner,
Erik <Leckner.Erik@useoa.onmicrosoft.com>
•!
App.67a
Cc: Madhavan Nair Kamala Devi Rakhi
<madhavan-nair-kamala-devi.rakhi@epa.gov>
Subject: RE: EMP dev box
Hey Christian,
Sorry I’m very busy right now so I can’t chat
about it over the phone but in re reading what
LeAnn sent below-I think you’re getting more than
the norm already . . . I’ve noted some things below
for your consideration here:
• Middleware team will build patch, configure,
updated the middleware-Deliberative Process / Ex. 5
Java. Requested (in our Monday meeting)—Sounds
like this one is good to go.
•
Middleware team will not provide further
documentation/README on the install and
configuration of these environments, beyond
what has already been supplied. There is no
point to spend time and customer dollars to
document task which can be handed by the
middleware team. Specific question can be
emailed to cam.middleware@epa.gov, or
Paula/C C LeAnn.
No, we need to know what they are doing on our dev
box. Will need README—README file will not be
created. Paula send out a quarterly with the updated
that will be made. You’ll see the changes before
they’re made so you can ask questions at that point.
•
Read-only access to middleware config files,
log files will be provided either via group
membership or adding world-read in the
staging and dev environment; the mechanism
App.68a
by which to provide this will be up to the
middleware team.
No not on dev—Read only access is all that’s ever
provided to non-middleware members even on dev
boxes. As long as the dev box paid for by an NCC
customer and managed by NCC, this is the process
and it will not change.
•
A ticket has been opened with WAM to add
EMP developers to the EMO group.
Completed by WAM-I had request this—Done,
excellent!
•
Middleware team manager will not approve
any sudo to administrative user used to build
or configure middleware such as Deliberative
Process / Ex.5 and potentially others.
We’re not trying to build it. We need Sudo for
other things.-You already have root access so I’m not
understanding the issue here? You don’t need sudo
for anything if you have root.
•
Middleware team recommends that if EMP
developers do have full root or sudo all on
the dev box, that this be removed This is for
their protection. The use of sudo is closely
tracked by the hosting team and security
tickets can be raised or opened.
Nope (dev)-Rob already approved of this-Correct, this
is approved and your already have the access needed.
She’s not going to remove it, she’s just making a re
commendation to cover her ass (battle won)
•
If it is not removed, middleware team request
and required that communication in writing
App.69a
be given to EMP developers stating clearly
that they are not to attempt to change the
middleware environment in any way. Any
such changes which cause security problems,
config drift issue with production, etc will
require additional hours—which cannot be
determined-to correct
We are not attempting to change middleware-Not
removing your access, she’s just covering her ass
again here (Battle won)
•
Middleware team will recommend and
facilities sudo rights to stop and restart
Apache and Tomcat and deploy code.
Nope-absolutely not (dev). We will be restarting
Tomcat regularly-She is giving you sudo rights to
restart XXXXX regularly (battle won)
Thanks,
Ali Page
ITS-EPA III CSRA
Employer knowledge of protected activity before
April 9.
From: Leckner, Erik
Sent: Friday, April 6, 2018 2:52 PM
To: Page, Alison <Page.Alison@epa.gov> Campbell,
Ed <Campbell.Ed@epa.gov>
Cc: Madhavan Nair Kamala Devi, Rakhi
<madhavan-nair-kamala-devi.rakhi@epa.gov>
Subject: RE: EMP dev box
App.70a
You must realize that we didn’t discuss with
Salient deployment. They modified files. I’ll play
forensics if I need to if they don’t provide, But why? I
spent many hours to even determine that Paula had
sabotaged the projects (changed permission to normal
files so only she could see them). Rakhi and I had
countless hours of frustration trying to get things to
work because file and directories were being inten
tionally hidden from our view-the developers. Even
Rob has stated the following:
Keep me posted for any action I need to
approve of. I agree we need to have the same
rights, access, permission at the previous
contractor. Even as they developed offsite.
LOL.
That should be grounds for getting a README or I
need to play forensics. I Even requested EMP access
20 times since Feb, Rob twice, and not until I finally
Let LeAnn know that it is needed did Paula act on it.
Christian Leckner
Principal Engineer
ITS-EPA | CSRA
San Diego, CA 92028 | PDT
949-244-6501 | leckner.erik@epa.gov
From: Leckner, Erik
Sent: Friday, April 6, 2018 2:47 PM
To: Page, Alison <Page.Alison@epa.gov> Campbell,
Ed <Campbell.Ed@epa.gov>
Cc: Madhavan Nair Kamala Devi, Rakhi
<madhavan-nair-kamala-devi.rakhi@epa.gov>
Subject: RE: EMP dev box
App.71a
I need to show what a README is. SO here is
reference.
https://en.wikipedia.org/wiki/README
Deliberative Process / Ex. 5
A readme taken an extra 10 seconds per major
step. A readme Is required idf they are touching files
in development box that isn’t standard install and it
isn’t. I gave case and points the other day to Ed.
Christian Leckner
Principal Engineer
ITS-EPA | CSRA
San Diego, CA 92028 | PDT
949-244-6501 | leckner.erik@epa.gov
App.72a
EXHIBIT IV
OFFICIAL DATE OF DISCHARGE
(JUNE 13, 2018)
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App.73a
APEX EMPLOYMENT NOTIFICATION
Yahoo/Angel
Wed, Jun 13, 2018 at 2:10 P.M.
From: Julie Davis <jadavis@apexsystems.com>
To: ‘christian@mobileti.com’
Hello!
Attached you will find a document indicating
your employment with Apex Systems/Apex Life
Sciences has come to an end, which is required by
state law. Should you have any questions regarding
this notice, please contact the number as indicated
on the form.
Thank you for working with Apex.
Regards,
Contractor Care
Julie Davis, Contractor Care Specialist
Apex Systems I Apex Life Sciences
5020 Sadler Place, Glen Allen, Virginia 23060
Office 866-612-2739 | Fax: 804-545-4834
jadavis@apexsystems.com
www.apexsystems.com | www.apexlifesciences.com
App.74a
EXHIBIT V
U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION (OSHA) COORDINATION
WITH FEDERAL PARTNER AGENCIES
(OCTOBER 3, 2017)
U.S. Department of Labor
Occupational Safety and Health Administration
Washington, D.C. 20210
Reply to the attention of:
MEMORANDUM FOR:
REGIONAL ADMINISTRATORS
WHISTLEBLOWER PROGRAM MANAGERS
THROUGH:
LOREN SWEATT
Acting Assistant Secretary
THROUGH:
THOMAS GALASSI
Acting Deputy Assistant Secretary
FROM:
FRANCIS YEBESI, Acting Director
Directorate of Whistleblower Protection Programs
SUBJECT:
Coordination with Federal Partner Agencies
The purpose of this memorandum is to explain
the process for working relationships between the
Occupational Safety and Health Administration
(OSHA) Whistleblower Protection Program (WPP) and
the Partner Agencies to ensure effective coordination
in their respective enforcement of OSHA’s whistle-
App.75a
blower protection provisions and the underlying public
protection statutes. This memorandum . . .
[...]
IV. PROCEDURES FOR HANDLING COMPLAINTS
FROM PARTNER AGENCIES
1. DWPP will transmit any complaints received
from the Partner Agency to the appropriate Regional
Office’s Assistant Regional Administrator (ARA) for
WPP.
2. The Regional Office’s WPP will review the
referral from the Partner Agency.
3. The Regional Office’s WPP will contact
Complainant to determine whether there is a prima
facie allegation of retaliation and verify Complainant’s
intent to file a retaliation complaint.
4. OSHA will use the date that the complaint
was submitted to OSHA as the date of filing for the
retaliation complaint, unless the complaint was sub
mitted to OSHA after the whistleblower provision’s
filing period. In the latter case, the date the complaint
was filed with the Partner Agency will be used if the
complaint was filed within the whistleblower provi
sion’s filing period.
V.
EFFECTIVE DATE
The effective date for implementation of this
procedure is October 1, 2017.
App.76a
Appendix A
Statutes
Partner Agencies
Environmental and Nuclear Safety
Environmental
Protection Agency (EPA)
Asbestos Hazard Emer
gency Response Act
(AHERA)
Clean Air Act (CAA)
Comprehensive Environ
mental Response,
Compensation and
Liability Act (CERCLA)
Safe Drinking Water Act
(SDWA)
Federal Water Pollution
Control Act (FWPCA)
Toxic Substances Control
Act (TSCA)
Solid Waste Disposal Act
(SWDA)
Energy Reorganization Act Nuclear Regulatory Com
(ERA)
mission (NRC)
Department of Energy
(DOE)
[...]
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.