Petition for Writ of Certiorari — Michael Peck, Petitioner v. Department of Labor, Administrative Review Board, et al.
Supreme Court briefNov 29, 2021
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No. _______
In The
Supreme Court of the United States
MICHAEL S. PECK, PH.D,
V.
Petitioner,
U.S. DEPARTMENT OF LABOR,
ADMINISTRATIVE REVIEW BOARD; AND
MARTY WALSH, U.S. SECRETARY OF LABOR,
Respondents.
LAWRENCE CRISCIONE,
Petitioner,
V.
U.S. NUCLEAR REGULATORY COMMISSION,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
NED MILTENBERG
Counsel of Record
LAW OFFICES OF NED MILTENBERG AND
GOVERNMENT ACCOUNTABILITY PROJECT
5410 Mohican Road — Suite 200
Bethesda, MD 20816
202-656-4490
NedMiltenberg@gmail.com
Counsel for Petitioners
Counsel Continued Inside Cover
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
JOHN M. CLIFFORD
BILLIE P. GARDE
CLIFFORD & GARDE, LLP
815 Black Lives Matter Plaza, NW — Suite 4082
Washington, DC 20006
202-280-6115
JOHN A. KOLAR
GOVERNMENT ACCOUNTABILITY PROJECT
1612 K Street, NW — Suite 1100
Washington, DC 20006
202-457-0034
Counsel for Petitioners
i
QUESTION PRESENTED
In 2005, Congress amended the Energy
Reorganization Act of 1974 (“ERA”) to expressly
include the Nuclear Regulatory Commission (“NRC”)
as an employer which could be sued for retaliatory
discrimination against whistleblowing employees.
Did the Fourth Circuit err in holding Congress
had not waived sovereign immunity, even though
Congress had enacted and then carefully amended a
substantive statutory provision that unequivocally
authorizes whistleblowing employees of the NRC to
sue the sovereign for retaliation?
ii
RELATED PROCEEDINGS
United States District Court for the District of
Maryland: Criscione v. U.S. Nuclear Regulatory
Commission, No. PWG 19-cv-2087 — judgment
entered on October 6, 2020.
United States Court of Appeals for the Fourth
Circuit: Criscione v. U.S. Nuclear Regulatory
Commission, No. 20-2320 — judgment entered on
May 3, 2021.
United States Court of Appeals for the Fourth
Circuit: Criscione v. U.S. Nuclear Regulatory
Commission, No. 20-2320 — rehearing and
rehearing en banc denied on July 2, 2021.
United States Court of Appeals for the Fourth
Circuit: Peck v. U.S. Department of Labor, et al., No.
20-1154 — judgment, as amended, entered on June
21, 2021.
United States Court of Appeals for the Fourth
Circuit: Peck v. U.S. Department of Labor, et al., No.
20-1154 — rehearing and rehearing en banc denied
on July 13, 2021.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................ i
RELATED PROCEEDINGS ....................................... ii
TABLE OF CONTENTS ............................................ iii
TABLE OF AUTHORITIES ..................................... vii
INTRODUCTION ....................................................... 1
RELEVANT ORDERS AND OPINIONS ................... 1
JURISDICTION .......................................................... 2
STATUTORY PROVISION INVOLVED ................... 3
STATEMENT .............................................................. 3
REASONS FOR GRANTING THE PETITION ......... 6
I. CONGRESS AUTHORIZED NRC
EMPLOYEES LIKE DR. PECK AND
MR. CRISCIONE TO SUE THE NRC
FOR LEGAL AND EQUITABLE RELIEF
UPON PROOF THAT THE NRC VIOLATED
THE EMPLOYEE’S STATUTORY RIGHT
TO BE FREE FROM DISCRIMINATORY
TREATMENT IN RETALIATION FOR
ENGAGING IN LEGALLY PROTECTED
ACTIVITIES ........................................................ 11
iv
A. Analyzing the ERA and Its Amendments
in Accordance with the “Standard” and
“Traditional Tools” of Interpretation Shows
that Congress Intended to Authorize NRC
Employees to Sue the NRC for Retaliation
for Making Disclosures .................................. 12
B. The Fourth Circuit’s Interpretation of the
ERA Defies Logic ............................................ 18
C. Congress’s 1992 and 2005 Amendments
to the ERA Compel the Conclusion that
Congress Waived Sovereign Immunity in
Order to Subject the NRC to Liability if it
Violated its Employees’ Whistleblower
Rights .............................................................. 20
II. THE FOURTH CIRCUIT ERRED
IN HOLDING THE ERA IS TOO
“AMBIGUOUS” TO BE ENFORCED BY
NRC EMPLOYEES.............................................. 23
A. The Dictionary Act Does Not Shield the
NRC from Liability ......................................... 23
B. The 2005 Amendment’s Specific Inclusion of
the NRC Overcomes the Dictionary Act’s
General Exclusion .......................................... 25
C. The 2005 Amendment’s Specific Inclusion of
the NRC Overcomes the Dictionary Act’s
General Exclusion .......................................... 29
v
D. Other Recent Decisions by this Court
Provide Additional Support in Favor of
Construing the ERA’s 2005 Amendment
as a Waiver of Sovereign Immunity .............. 32
III. THE FOURTH CIRCUIT ERRED IN
CONCLUDING THE ERA PROVIDES
WHISTLEBLOWING EMPLOYEES
WITH REAL AND EFFECTIVE
REMEDIES TO NRC EMPLOYEES,
“JUST NOT THE REMEDY THE
PETITIONER[S] WANT.” ................................ 35
CONCLUSION .......................................................... 38
APPENDIX:
Documents related to Michael S. Peck, Ph.D. v.
United States Department of Labor, et al.:
Amended Opinion of the United States Court of
Appeals for the Fourth Circuit, decided April 30,
2021; amended June 21, 2021 ............................. A1
Judgment Order, Fourth Circuit,
filed April 30, 2021 ............................................ A18
Order Amending Opinion, Fourth Circuit,
filed June 21, 2021 ............................................. A19
Order on Rehearing, Fourth Circuit,
filed July 13, 2021 .............................................. A20
vi
Documents related to Lawrence Criscione v.
United States Nuclear Regulatory Commission:
Order of the United States Court of Appeals
for the Fourth Circuit, filed May 3, 2021 .......... A21
Judgment Order, Fourth Circuit,
filed May 3, 2021 ................................................ A23
Order on Abeyance, Fourth Circuit,
filed December 11, 2020 .................................... A24
Opinion of the United States District Court for
the District of Maryland, filed October 6, 2020 .. A25
Order on Rehearing, Fourth Circuit,
filed July 2, 2021 ................................................ A44
Statute: 42 U.S. Code § 5851 ................................ A45
vii
TABLE OF AUTHORITIES
Cases
Adams v. Dole, 927 F.2d 771 (4th Cir. 1991) ......... 20
Ali v. Fed. Bureau of Prisons, 552 U.S. 214
(2008) ....................................................................... 14
Anderson v. Hayes Constr. Co., 153 N.E. 28
(N.Y. 1926) ........................................................... 8, 10
Bath v. NRC, ARB No. 2002-0041, ALJ No. 2001ERA-00041 (ARB Sept, 29 2003) ............................. 21
Bechtel Constr. Co. v. Dept. of Labor, 50 F.3d 926
(11th Cir. 1995) ....................................................... 14
Blackburn v. Reich, 79 F.3d 1375 (4th Cir. 1996) .. 14
Chickasaw Nation v. United States, 534 U.S. 84
(2001) ....................................................................... 34
Comm'r of Internal Revenue v. Engle, 464 U.S. 206
(1984) ....................................................................... 27
Conn. Light & Power Co. v. Dept. of Labor, 85 F.3d
89 (2d Cir. 1996) ...................................................... 14
CSX Transp., Inc. v. Alabama Dept. of Revenue,
562 U.S. 277 (2011) ................................................. 26
Curran v. Arkansas, 56 [15 How.] U.S. 304 (1853) ... 26
viii
Doyle v. Dept. of Labor, 285 F.3d 243
(3d Cir. 2002) ..................................................... 13, 14
Duncan v. Walker, 533 U.S. 167 (2001)37................ 37
Edgardo D. v. NRC, EEOC Docket No. 0120172572,
2019 WL 1011577 (E.E.O.C. Feb. 12, 2019) ........... 32
Edwards v. California, 314 U.S. 160 (1941) .......... 38
English v. Gen’l. Elec. Co., 496 U.S. 72 (1990) . 13, 18
FAA v. Cooper, 566 U.S. 284 (2012) ................... 9, 10
Ferguson v. Skrupa, 372 U.S. 726 (1963) ............. 6, 36
Fran. Tax Bd. of Calif. v. U.S. Postal Serv.,
467 U.S. 512 (1984) ................................................. 10
Gomez-Perez v. Potter, 553 U.S. 474 (2008) ... passim
Gundy v. United States, 139 S. Ct. 2116
(2019) ............................................................ 12, 13, 17
Hamilton v. Lanning, 560 U.S. 505 (2010) ............ 29
Harris v. NRC, EEOC Docket No. 0120120178, 2013
WL 1182289 (E.E.O.C. Mar. 15, 2013) ................... 32
Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150,
136 S. Ct. 1288 (2016) ............................................. 13
Indian Towing Co. v. United States, 350 U.S. 61
(1955) ....................................................................... 10
ix
Int’l Primate Protection League v. Admin. of Tulane
Educ. Fund, 500 U.S. 72 (1991) ............................... 25
Irwin v. Dept. of Veterans Affairs, 498 U.S. 89
(1980) ........................................................................... 7
Joseph D v. NRC, EEOC Docket No. 0120180036,
2018 WL 1109739 (E.E.O.C. Feb. 13, 2018) ........... 32
Kansas Gas & Elec. Co. v. Brock , 780 F.2d 1505
(10th Cir. 1985) ................................................. 13, 14
King v. Burwell, 576 U.S. 473 (2015) ................... 6, 36
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) . 12, 27, 28, 33
Lane v. Pena, 518 U.S. 187 (1996) ............................ 7
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) . 36
Maharaj v. Stubbs & Perdue, P.A. (In re Maharaj),
681 F.3d 558 (4th Cir. 2012) ................................... 27
Marbury v. Madison, 5 U.S. [1 Cranch] 137 (1803) ... 7
Marx v. Gen’l Revenue Corp., 568 U.S. 371 (2013) .. 37
Nat’l Ass’n of Mfrs. v. Dept. of Defense, 138 S. Ct. 617
(2018) ........................................................................ 28
Passenger Corp. v. Passengers Assn., 414 U.S. 453
(1974) ....................................................................... 14
Return Mail, Inc. v. U.S.P.S., 139 S. Ct. 1853
(2019) ................................................................. 24, 25
x
Richlin Security Service Co. v. Chertoff, 553 U.S. 571
(2008) ........................................................................ 34
Ross v. Blake, 578 U.S. 632 (2016) ....................... 7, 37
Sanders v. Energy Northwest, 812 F.3d 1193
(9th Cir. 2016) ......................................................... 13
Sossamon v. Texas, 563 U.S. 277 (2011) .................... 7
Stone v. INS, 514 U.S. 386 (1995) ............................ 37
Tamosaitis v. URS Inc., 781 F.3d 468
(9th Cir. 2015) .......................................................... 14
United States v. Aetna Casualty & Surety Co.,
338 U.S. 366 (1949) ............................................. 8, 10
United States v. American Trucking Assns., Inc.,
310 U.S. 534 (1940). .................................................. 13
United States v. Castleman, 572 U.S. 157
(2014) .................................................................. 28, 36
United States v. Cooper Corp., 312 U.S. 600
(1941) ................................................................. 24, 25
United States v. Hayes, 482 F.3d 749
(4th Cir. 2007) ................................................... 28, 36
United States v. Mitchell, 463 U.S. 206 (1983) .......... 8
United States v. Quality Stores, Inc., 572 U.S. 141
(2014) ......................................................................... 37
xi
United States v. White Mountain Apache Tribe,
537 U.S. 465 (2003) ................................. 8, 32, 33, 34
United States v. Williams, 514 U.S. 527 (1995) ..... 10
U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1
(1977) ..................................................................... 6, 36
Utility Air Regulatory Group v. EPA, 573 U.S. 302
(2014) ....................................................................... 14
Vermont Agency of Natural Resources v. United
States ex rel. Stevens, 529 U.S. 765 (2000) ........ 24, 25
Webster v. Reproductive Health Serv., 492 U.S. 490
(1989) ......................................................................... 13
Williamson v. Lee Optical of Oklahoma Inc.,
348 U.S. 483 (1955) ................................................... 36
Wise v. Withers, 7 [3 Cranch] U.S. 331 (1806) ......... 26
Statutes and Rules
1 U.S.C. § 1 ......................................................... 23, 24
16 U.S.C. § 2601 ....................................................... 20
28 U.S.C. 1254 ............................................................. 3
29 U.S.C. § 621 ......................................................... 29
29 U.S.C. § 633 .................................................. 30, 31
42 U.S.C. § 5801 .............................................. 3, 4, 38
xii
42 U.S.C. § 5851 .............................................. passim
42 U.S.C. § 13201 ..................................................... 20
Sup. Ct. R. 12.4 ........................................................... 1
Other Authorities
Antonin Scalia & Bryan A. Garner,
READING LAW: THE INTERPRETATION OF
LEGAL TEXTS (2012) ...................................... 26, 29
H.R. 1644 (108th Cong. 2003)................................... 21
H. Rept. 108-65--Part 1 (108th Cong. 2003)............. 21
NRC, About NRC, https://www.nrc.gov/aboutnrc.html (last viewed Nov. 23, 2021) .......................... 5
1
PETITION FOR A WRIT OF CERTIORARI
Undersigned Counsel of Record for the
Petitioners
in
both
above-capitioned
cases
respectfully petitions on their behalf for a writ of
certiorari to review the judgments of the United
States Court of Appeals for the Fourth Circuit in
these cases.
Pursuant to this Court’s Rule 12.4, undersigned
Counsel of Record is filing a “single petition for a
writ of certiorari” because the “judgments … sought
to be reviewed” are from “the same court and involve
identical or closely related questions.” Sup. Ct. R.
12.4.
RELEVANT ORDERS AND OPINIONS
In Peck v. U.S. Department of Labor, the final
order and opinion of the Fourth Circuit entering
judgment, dated June 21, 2021, is reported at 996
F.3d 224 (4th Cir. 2021), as amended (June 21,
2021). It is reprinted in the attached Appendix at
A1-A17.
In Peck, the Fourth Circuit’s initial (and
superseded) judgment of April 30, 2021, is not
reported in the Federal Reporter, published, or
available on Westlaw or Lexis. It is reprinted at A18.
In Peck, the Fourth Circuit’s order of June 21,
2021, amending its judgment of April 30, 2021, is not
reported, published, or available on Westlaw or
Lexis. It is reprinted at A19.
In Peck, the Fourth Circuit’s order of July 13,
2021, denying rehearing and rehearing en banc is
not reported, published, or available on Westlaw or
Lexis. It is reprinted at A20.
In Criscione v. U.S. Nuclear Regulatory
Commission, the order and opinion of the U.S.
2
District Court for the District of Maryland entering
judgment is reported at 493 F. Supp. 3d 423 (D. Md.
Oct. 6, 2020). It is reprinted at A25-A43.
In Criscione, the Fourth Circuit’s order of
December 11, 2020, placing its consideration of and
rulings on Criscione “in abeyance pending a decision
… in Peck” is not reported, published, or available on
Westlaw or Lexis. It is reprinted at A24.
In Criscione, the Fourth Circuit entered an order
in that case on May 3, 2021, stating that “[i]n light of
our rejection in Peck of the identical issue presented
by this appeal, we summarily affirm the district
court’s dismissal of Criscione’s whistleblowerretaliation action against the NRC.” (A22). That
order is not reported, published, or available on
Westlaw or Lexis. It is reprinted at A21-A22.
In Criscione, the Fourth Circuit entered its
judgment of summary affirmance in that case on
May 3, 2021. That judgment is not reported,
published, or available on Westlaw or Lexis. It is
reprinted at A23.
In Criscione, the Fourth Circuit entered an order
on July 2, 2021, denying rehearing and rehearing en
banc. That order is not reported, published, or
available on Westlaw or Lexis. It is reprinted at A24.
JURISDICTION
The Fourth Circuit entered its amended
judgment in Peck v. U.S. Department of Labor on
June 21, 2021. Petitioner Michael S. Peck, Ph.D.
(“Dr. Peck”) timely sought panel rehearing and
rehearing en banc, which the Fourth Circuit denied
on July 13, 2021.
The Fourth Circuit entered its judgment in
Criscione v. U.S. Nuclear Regulatory Commission on
3
May 3, 2021. Petitioner Lawrence Criscione (“Mr.
Criscione”) timely sought panel rehearing and
rehearing en banc, which the Fourth Circuit denied
on July 2, 2021.
This Court has jurisdiction in both cases
under 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
The relevant “Employee Protection” provision, 42
U.S.C. § 5851, of the Energy Reorganization Act of
1974 (“ERA”), as amended by the Energy Policy Act
of 2005 (“EPA”), 42 U.S.C. 5801 et seq., is reprinted
at A47-A53.
STATEMENT
Petitioner Michael Peck, Ph.D., is a professional
engineer, with a Ph.D. in Nuclear Engineering. He
started his employment for Respondent Nuclear
Regulatory Commission (“NRC”) in 2000, working as
a nuclear engineer at all relevant times thereafter.
From 2007 to 2012, he served as the NRC’s Senior
Resident Inspector at the Diablo Canyon Nuclear
Power Plant in California.
At various times in 2015 and 2016, in the
aftermath of nuclear disasters (and near disasters)
at various nuclear power plants around the globe,
including in 2011 at the Fukushima Nuclear Power
Plant in Japan and in 2013 at the Diablo Canyon
Plant, Dr. Peck voluntarily provided truthful,
accurate, and embarrassing testimony and
disclosures about the health and safety risks to the
public from poorly analyzed seismic risks at the
Diablo Canyon Plant, to Congress and the NRC’s
Office of Inspector General (“OIG”). His NRC
superiors were well-aware of his testimony and
disclosures.
4
After Dr. Peck provided his disclosures and
testimony he applied for different, better, and
higher-paying positions within the NRC. The NRC
denied each of his applications, each time choosing to
promote a less-qualified applicant instead.
In 2017, Dr. Peck filed a retaliation complaint
with the Occupational Safety and Health
Administration (“OSHA”), part of the Department of
Labor (“DOL”), pursuant to Section 211 of the
Energy Reorganization Act of 1974 (“ERA), 42 U.S.C.
5801 et seq., as amended by Act of Nov. 6, 1978, Pub.
L. No. 95-601, 92 Stat. 2947, and the Energy Policy
Act of 2005 (“EPA”), a section in which Congress had
added the NRC as an “employer” to the list of
entities that are prohibited from retaliating against
their employees.
The NRC moved OSHA to dismiss on the ground
that in enacting and amending the ERA Congress
had not unequivocally waived sovereign immunity.
OSHA agreed and dismissed Dr. Peck’s complaint, a
decision which a DOL Administrative Law Judge
(“ALJ”) then affirmed. Dr. Peck appealed that ruling
to the DOL’s Appellate Review Board (“ARB”), which
affirmed the ALJ.
Dr. Peck then timely noticed and pursued an
appeal of the ARB’s decision to the Fourth Circuit
court pursuant to 42 U.S.C. § 5851(c).
Petitioner Lawrence Criscione sued his employer,
the NRC, in the U.S. District Court for the District of
Maryland on July 16, 2019, alleging whistleblower
retaliation by the NRC in violation of ERA Section
211.
Mr. Criscione began working for the NRC in 2009
as a nuclear Reliability and Risk Engineer. In that
5
job, he was central to fulfilling the NRC’s mandate
which, as its website explains, is “to ensure the safe
use of radioactive materials [in] … commercial
nuclear power plants … through licensing,
inspection and enforcement of [NRC] requirements.”
NRC, About NRC, https://www.nrc.gov/aboutnrc.html (last viewed Nov. 23, 2021).
Shortly after he began working for the NRC, Mr.
Criscione discovered numerous safety-related
problems at civilian nuclear power plants he worked
at and monitored. Between 2010 and 2012, he
repeatedly warned NRC officials, Congress, and the
public about practices at those plants that violated
NRC safety regulations. His NRC superiors knew
Mr. Criscione had made those whistleblowing
disclosures, ignored their substance, and engaged in
punitive and discriminatory employment retaliation
against him for making them, specifically by
reprimanding him, denying him job promotions and
transfers he deserved, and by attempting to gag his
speech to Congress and the public.
In 2014, Mr. Criscione sought relief from this
retaliation by availing himself of the DOL’s
administrative remedies and thus filed a complaint
with OSHA.
The NRC moved OSHA to dismiss Mr. Criscione’s
complaint for lack of subject matter jurisdiction,
asserting that the ERA contains no waiver of
sovereign immunity with regard to claims brought
against the NRC for the complained-of retaliation.
OSHA granted the NRC’s motion and dismissed Mr.
Criscione’s complaint in May 2017. A DOL
Administrative Law Judge affirmed OSHA’s decision
in June 2018. The ARB affirmed that ruling on
March 22, 2019, so as to allow Mr. Criscione, having
6
exhausted his administrative remedies, to pursue his
claims in federal court.
After Mr. Criscione filed his complaint in federal
court the NRC moved that court to dismiss his
complaint for lack of subject matter jurisdiction,
reiterating its contention that the ERA contains no
waiver of United States sovereign immunity. The
district court granted that motion and dismissed Mr.
Criscione’s complaint after concluding the ERA lacks
an unequivocal waiver of sovereign immunity.
Mr. Criscione thereafter timely noted and
pursued his appeal to the Fourth Circuit.
REASONS FOR GRANTING THE PETITION
There are few “absolute … principles” in the law.
King v. Burwell, 576 U.S. 473, 502 (2015) (Scalia, J.,
joined by Thomas, and Alito, JJ., dissenting).
The Fourth Circuit violated all three in
concluding that Congress’ 2005 amendment to the
ERA was unnecessary, redundant, and inoperative
surplusage
and,
consequently,
that
NRC
whistleblowing employees like the Petitioners have
no right to be restored to their privileges of
employment after suffering retaliatory employment
discrimination by the NRC.
First, Article III courts must “defer to legislative
judgment as to the wisdom and necessity … of a
particular measure.” U.S. Trust Co. of N.Y. v. New
Jersey, 431 U.S. 1, 23 (1977), and must not “sit as a
super legislature to weigh the wisdom of legislation.”
Ferguson v. Skrupa, 372 U.S. 726, 729-32 (1963).
The Fourth Circuit violated this fundamental
principle by rejecting Congress’ very careful and very
specific addition of the NRC to the class of employers
7
barred from retaliatory discrimination against
whistleblowing employees of the NRC.
Second, “[w]hen Congress amends legislation,
courts must ‘presume [Congress] intends [the
amendment] to have real and substantial effect.’”
Ross v. Blake, 578 U.S. 632, 642 (2016) (citation
omitted). The Fourth Circuit ignored this vital
principle by choosing no effect to Congress’
amendment to the ERA.
Finally, “[t]he very essence of civil liberty
certainly consists in the right of every individual to
claim the protection of the laws, whenever he
receives an injury.” Marbury v. Madison, 5 U.S. [1
Cranch] 137, 162 (1803). The Fourth Circuit
abridged this elemental principle by leaving NRC
whistleblowing employees without the remedy
Congress added in 2005 against the NRC; indeed,
leaving them no better off than if Congress had not
amended the ERA on their behalf at all.
These principles are so fundamental that they
apply to remedies against the sovereign. To be sure,
it is well settled that “a waiver of sovereign
immunity ‘will be strictly construed, in terms of its
scope, in favor of the sovereign.’” Sossamon v. Texas,
563 U.S. 277, 285 (2011) (quoting Lane v. Peña, 518
U.S. 187, 192 (1996)). Similarly, it is an equally
“longstanding rule that a waiver of sovereign
immunity must be expressly and unequivocally
stated in the text of the relevant statute.” Id., 563
U.S. at 290. See Lane, 518 U.S. at 192 (citing Irwin
v. Dept. of Veterans Affairs, 498 U.S. 89, 95 1980)).
Significantly,
however,
this
Court
has
admonished that this strict construction/unequivocal
waiver canon does not apply to substantive statutory
8
provisions that establish one’s rights against the
government. See, e.g., Gomez-Perez v. Potter, 553
U.S. 474, 491 (2008); United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003). In
other words, plaintiffs are not required to surmount
the onerous strict construction canon twice in a suit
against the government. As Justice Cardozo
observed, “[t]he exemption of the sovereign from suit
involves hardship enough where consent has been
withheld,” so the Court is “not to add to its rigor by
refinement of construction where consent has been
announced.” Anderson v. Hayes Constr. Co., 153 N.E.
28, 29-30 (N.Y. 1926); United States v. Aetna Cas. &
Surety Co., 338 U.S. 366, 383 (1949) (quoting
Anderson); United States v. Mitchell, 463 U.S. 206,
218-19 (1983).
Although, simply stated, lower courts have
struggled with these principles, the government
repeatedly, and reflexively, seeks refuge in the canon
when fighting claims on the merits.
The Fourth Circuit’s opinion in Peck exemplifies
this struggle. Thus, the concluding section of that
opinion begins as follows:
Safety at nuclear facilities is of paramount
importance. Violations of safety protocols
there can have catastrophic consequences.
Accidents at Three Mile Island and Chernobyl
are evidence enough of that. The magnitude of
those accidents explains, in part, why the
nuclear industry is so heavily regulated.
Whistleblower protections can help prevent
such tragedies by allowing engineers,
scientists, and others working at facilities to
report safety violations without fear of
reprisal. No person should lose their job or
9
have their career progression stalled for
following the appropriate procedures for
safety reporting.
A16-A17 (emphasis added).
The Fourth Circuit’s sympathies for the “career
progression stalled” of Dr. Peck’s and Mr. Criscione
was commendable and its suggestion about what
Congress should and “can” do, i.e., “add protections
in the form of a private right of action against the
NRC
itself,”
id.
at
A17—is
appreciated.
Nevertheless, although the Fourth Circuit’s
sympathies and suggestion were sound, its analysis
of the statute Congress already had amended to
protect nuclear whistleblowers like the petitioners
here was flawed and its ultimate conclusion was
mistaken.
In the Fourth Circuit’s eyes, “waiving sovereign
immunity is a legislative … prerogative” and
Congress simply “ha[d] not exercised that
prerogative here.” Id. at A17.
In reaching that conclusion, the Fourth Circuit
ignored this Court’s repeated guidance about how
statutes should be construed, i.e., by focusing first
and last on the legislature’s purpose, particularly
ignored this Court’s repeated admonitions that it
“ha[s] never required that Congress use magic
words” of any kind to waive sovereign immunity.
FAA v. Cooper, 566 U.S. 284, 291 (2012) (emphasis
added).1
The Court has similarly “admoni[shed] that waiver of
sovereign immunity is accomplished not by ‘a ritualistic
formula’; rather intent to waive immunity and the scope of such
a waiver can only be ascertained by reference to underlying
1
10
Thus, instead of incanting “magic words” and
“ritualistic formula[e],” in sovereign immunity cases
the only thing that is “require[d] is that the scope of
Congress' waiver be clearly discernable from the
statutory text in light of traditional interpretive
tools.” Id.2
The following analysis of the text of the
“statutory text” in this case—the “Employment
Protection” provision of the Energy Reorganization
Act of 1974 (“ERA”), 42 U.S.C. § 5851, as amended
(2005)—“in light of traditional interpretive tools,”
FAA v. Cooper, 566 U.S. at 291, demonstrates that
the Fourth Circuit’s conclusion and judgment were
manifestly wrong.
This Court’s intervention is urgently needed. The
Court should grant certiorari and say what should
have been obvious: the ERA’s Employee Protection
provision unequivocally authorizes whistleblowing
employees of the Nuclear Regulatory Commission
(“NRC”), like the petitioners here, to sue the NRC for
retaliatory employment discrimination under the
administrative remedial scheme for nuclear
whistleblowers. At minimum, the Court should
summarily reverse the decisions below and direct the
congressional policy.” Fran. Tax Bd. of Calif. v. U.S. Postal
Serv., 467 U.S. 512, 521 (1984) (emphasis added).
2
Thus, courts should not regard themselves as “selfconstituted guardian[s] of the Treasury [and] import immunity
back into a statute designed to limit it.” Indian Towing Co. v.
United States, 350 U.S. 61, 69 (1955) (Frankfurter, J.).
Moreover, “‘“[t]he exemption of the sovereign from suit involves
hardship enough where consent has been withheld. We are not
to add to its rigor by refinement of construction where consent
has been announced.”’” United States v. Williams, 514 U.S. 527,
541 (1995) (Scalia, J., concurring) (quoting Aetna Casualty, 338
U.S. at 383 (quoting Anderson, 153 N.E. at 29-30).
11
Fourth Circuit to conduct a proper sovereign
immunity analysis, i.e., one that respects and uses
rather than disdains the traditional tools for
interpreting statutes.
Because the decisions below should not be
allowed to stand, this Court should either grant
certiorari in this case or summarily reverse the
Fourth Circuit’s decision below.
I.
CONGRESS
AUTHORIZED
NRC
EMPLOYEES LIKE DR. PECK AND MR.
CRISCIONE TO SUE THE NRC FOR
LEGAL AND EQUITABLE RELIEF UPON
PROOF THAT THE NRC VIOLATED THE
EMPLOYEE’S STATUTORY RIGHT TO
BE FREE FROM DISCRIMINATORY
TREATMENT IN RETALIATION FOR
ENGAGING IN LEGALLY PROTECTED
ACTIVITIES
In 2005, Congress amended the ERA in order to
expressly add the NRC to the roster of employers
that Congress, through the ERA, prohibits from
“discriminat[ing]” against their employees in
retaliation for making protected disclosures about
nuclear safety. In this case, the Fourth Circuit
erroneously held that whistleblower complaints by
NRC employees against the NRC for retaliation have
no basis in law. In so holding, the Fourth Circuit
effectively
concluded
that
Congress’
2005
amendment was inoperative surplusage.
12
A.
Analyzing
the
ERA
and
Its
Amendments in Accordance with the
“Standard” and “Traditional Tools” of
Interpretation Shows that Congress
Intended
to
Authorize
NRC
Employees to Sue the NRC for
Retaliation for Making Disclosures
1.
The “Standard” and “Traditional
Tools” of Statutory Interpretation
Are Necessary to Discern Congress’
Purpose
An analysis of the ERA and its 2005
amendment—using “‘all the standard tools of
interpretation,’” which ‘include[e] consideration of [a
statute’s] ‘text, structure, [and] history,’” Kisor v.
Wilkie, 139 S. Ct. 2400, 2414 (2019))—demonstrates
the Fourth Circuit erred in concluding that
Congress’ 2005 amendment was meaningless
surplusage.
Construing the ERA, and doing so properly, is
crucial to determining if the Fourth Circuit’s
holdings were wrong. As this Court recently
reiterated: “’[i]t is a fundamental canon of statutory
construction that the words of a statute must be read
in their context and with a view to their place in the
overall statutory scheme.’” Gundy v. United States,
139 S. Ct. 2116, 2126 (2019).
A reasonable statutory interpretation must
account for both the specific context in which
... language is used and the broader context of
the statute as a whole. And beyond context
and structure, the Court often looks to history
[and] purpose to divine the meaning of
language.
13
Id. (citations and quotation marks omitted).
Of all these considerations, and in all kinds of
cases, “‘the purpose of Congress is the ultimate
touchstone.’” Hughes v. Talen Energy Mktg., LLC,
578 U.S. 150, 136 S. Ct. 1288, 1297 (2016) (citations
omitted).3
2. The ERA’s “Paramount Purpose” is
the Protection of Employees Who
Report Nuclear Safety Violations
The ERA is a “remedial” statute,4 whose
“paramount’ purpose [i]s the protection of
employees,” which it aims to achieve by
“encourag[ing] employees to report safety violations
[in the nuclear industry] and provid[ing] a
mechanism for protecting them against retaliation
for doing so.” English v. Gen’l Elec. Co., 496 U.S. 72,
83, 82 (1990).
A proper understanding of the ERA’s overall
“remedial” nature and “paramount purpose” is
important to construing the meaning and scope of
the ERA’s individual provisions (specifically
including the amendments Congress made to the
ERA in 1992 and 2005 in order to expressly
“In the interpretation of statutes, the function of the
courts … is to construe the language so as to give effect to
the intent of Congress.” United States v. American Trucking
Assns., Inc., 310 U.S. 534, 542 (1940). Thus, the “basic rule … is
to first seek the legislative intention, and to effectuate it.”
Webster v. Reproductive Health Serv., 492 U.S. 490, 515 (1989).
4
See Sanders v. Energy Northwest, 812 F.3d 1193, 1197
(9th Cir. 2016) (the ERA “serves a broad, remedial purpose of
protecting workers from retaliation based on their concerns for
safety and quality”). See also Doyle v. Dept. of Labor, 285 F.3d
243, 255 (3d Cir. 2002); Kansas Gas & Elec. Co. v. Brock, 780
F.2d 1505, 1512 (10th Cir. 1985).
3
14
guarantee “Employee Protection,” § 5851) because,
“[t]he overarching purpose of the [ERA]—the
protection of whistleblowers—militates against an
interpretation that would make anti-retaliation
actions more difficult to maintain.” Blackburn v.
Reich, 79 F.3d 1375, 1378 (4th Cir. 1996).5
Understanding the ERA’s purpose is critical,
particularly because “even the most basic general
principles of statutory construction,” such as the
sovereign immunity canon of construction the
Fourth Circuit relied to the exclusion of all other
tools of construction, see A6-A9, A12-A16, “must
yield to clear contrary evidence of legislative intent,”
Passenger Corp. v. Passengers Assn., 414 U.S. 453,
458 (1974), or to the statute’s purpose and “whole
context.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214,
228 (2008) See Utility Air Regulatory Group v. EPA,
573 U.S. 302, 320 (2014).
3. The ERA’s Text, Structure, and
History Also Are Consistent with
Decisions Holding the NRC Liable for
Legal and Equitable Relief for
Violating
the
Rights
of
NRC
Employees’ Rights
The text, structure, and history of the ERA and
its 2005 amendments clearly illuminate Congress’
purpose in enacting that statute and broadening its
protective scope through those amendments.
Other Circuits agree. See Tamosaitis v. URS Inc., 781
F.3d 468, 482 (9th Cir. 2015); Conn. Light & Power Co. v. Dept.
of Labor, 85 F.3d 89, 94 (2d Cir. 1996); Bechtel Constr. Co. v.
Dept. of Labor, 50 F.3d 926, 932–33 (11th Cir. 1995).
Conversely, “a narrow interpretation of the [ERA’s]
employee protection provisions would frustrate the intent of
Congress.” Doyle, 285 F.3d at 255. See Brock, 780 F.2d at 1512.
5
15
Auspiciously, the ERA’s structure is easy to sketch.
The ERA has seven key sections and sub-sections.
One provision, sub-section (a)(1)—which is titled
“Discrimination against Employee”—provides:
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
engaged in one of six types of protected conduct
listed in § 5851(a)(1). These protected activities,
enumerated as § 5851(a)(1) sub-sections “A” through
“F”—include such things as “(A) notif[ying] his
employer of an alleged [nuclear safety] violation …,”
or “(C) testif[ying] before Congress ….” (As noted
above, the petitioners’ complaints alleged that they
both “notified” NRC officials and “testified” before
Congress about safety violations at nuclear power
plants).
A second provision, § 5851(a)(2), lists seven
classes of “employer[s],” including the NRC, which
are prohibited from engaging in one of the kinds of
“discrimination against employee” described in §
5851(a)(1). As discussed below, when Congress
enacted the ERA in 1978, § 5851(a)(2) listed only five
classes of “employer[s]”—“A” through “E”. Congress
twice amended § 5851(a)(2), in 1992 and 2005
respectively, to add “F” and “G,” covering “the
Department of Energy” and “the [Nuclear
Regulatory] Commission.”
A third provision, § 5851(b)(1), provides in full:
Any employee who believes that he has been
discharged or otherwise discriminated against
by any person in violation of subsection (a) of
16
this section 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. 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.
(Emphasis added).
A fourth provision, § 5851(b)(2)(A), prescribes
“how the Secretary shall conduct an investigation of
the violation alleged in the complaint.”
A fifth provision, § 5851(b)(2)(B), describes the
kinds of relief an employer must provide to an
employee—including “reinstate[ment] [of] the
complainant to his former position … and privileges
of his employment”—"[i]f … the Secretary
determines that a violation of subsection (a) of this
section has occurred.” (Emphasis added).
A sixth provision, § 5851(b)(3)(D), establishes the
standard of proof an “employer” must satisfy to
prevail against an employee’s complaint. This
section says, in full: “Relief may not be ordered
under paragraph (2) if the employer demonstrates by
clear and convincing evidence that it would have
taken the same unfavorable personnel action in the
absence of such behavior.”
Finally, a seventh, “jurisdiction[al],” provision, §
5851(d), states:
Whenever a person has failed to comply with
an order issued under subsection (b)(2) of this
section, the Secretary may file a civil action in
17
the United States district court for the district
in which the violation was found to occur to
enforce such order. In actions brought under
this subsection, the district courts shall have
jurisdiction to grant all appropriate relief
including, but not limited to, injunctive relief,
compensatory, and exemplary damages.
Section 5851(b) is crucial to § 5851’s entire
remedial scheme because it ties together, in one
paragraph:
the identification of “employers”
whose discrimination triggers their
liability under the ERA;
the “complaint” by an “employee”;
the Secretary’s “investigat[ion]” of
an employer’s alleged “violation” of
the employee’s rights;
the “clear-and-convincing” standard
of proof an “employer” must satisfy
to avoid liability; and
the legal and equitable remedies the
Secretary shall order if an employee
proves an employer violated his or
her rights under the ERA, including
“reinstat[ing] … privileges of his
employment.”
When § 5851 is viewed “holistically,” as it should
be, Gundy, 139 S. Ct. at 2126, it is plain that
Congress regarded “person” and “employer” as
synonymous and functionally interchangeable terms.
The Fourth Circuit, however, effectively said these
words are not interchangeable, that “person” is an
“ambiguous” term, one which might plausibly mean
18
someone or something besides an employee’s
employer. This led the Fourth Circuit to conclude
that in the context of the ERA the terms “employee”
and
“person”
are
not
synonymous
and
interchangeable, a conclusion that is plainly
incorrect as a matter of law.
B.
The Fourth Circuit’s Interpretation of
the ERA Defies Logic
The Fourth Circuit’s interpretation of the ERA is
contrary to the plain language of the statutory text
and, even more, to common sense.
Why would Congress provide employees with a
remedy against someone other than their employer
in a statute that, English, 496 U.S. at 82-83, had
concluded, Congress crafted for the sole and
unmistakable purpose of protecting employees who
make protected disclosures from retaliation by their
employer? If Congress had intended to protect
employees against discrimination perpetrated by
some “persons” besides their “employer,” it easily
could have identified or described these other
“persons” in § 5851(a)(1), where it identified entities
that are prohibited from discriminating against
employees. Congress did not do so.
Having taken pains to enumerate seven classes of
“employers” in § 5851(a)(2)(A)-(G), Congress surely
could have described what kind of non-employer
entities constituted “persons.” But Congress did no
such thing. Instead, in 2005, Congress expressly
added the NRC to the list of “employers” who are
covered by the ERA’s bar on retaliatory
discrimination. Section 5851(a)(1) says only that
No employer may discharge any employee or
otherwise discriminate against any employee
19
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)
(Emphasis added.)
Employees who are authorized to sue pursuant to
the ERA’s complaint provision, § 5851(b)(1), are
employed by employers who are barred from
discriminating against any employee who engages in
an activity listed in its protected activities sections, §
5851(a)(1)-(2). If the Secretary determines that a
violation has occurred, the Secretary may order legal
and equitable remedies against the “person” who
violated
an
employee’s
rights,
including
reinstatement, back pay, compensatory damages,
and restoration of the employee’s “privileges of
employment.” (Emphasis added).
Importantly, the only “person” with the power to
“discharge” an “employee” is that employee’s
employer. Likewise, the only “person” with the
power to “reinstate” an employee is that employee’s
employer. Equally important, the only “person” with
the power to restore or otherwise affect an
employee’s “privileges of employment” is that
employee’s employer.
Finally, and along the same lines, the only
persons who are expressly entitled to an affirmative
defense under § 5851(b)(3)(D) are employers because
they—and they alone—are persons subject to
liability under § 5851.
In sum, who could a “person” be besides an
“employer”?
For all these reasons, and contrary to the Fourth
Circuit’s decision, it is utterly implausible that
20
“person[s]” are not “employer[s]” in the context of the
ERA.
C.
Congress’s 1992 and 2005 Amendments
to the ERA Compel the Conclusion
that Congress Waived Sovereign
Immunity in Order to Subject the NRC
to Liability if it Violated its
Employees’ Whistleblower Rights.
Congress materially amended these provisions,
and the ERA overall, only twice since 1978. Both
times Congress expanded the class of employers
subject to statutory penalties for whistleblower
retaliation under § 5851(b)(2), unless “the employer
demonstrates by clear and convincing evidence that
it would have taken the same unfavorable personnel
action in the absence of such behavior.” §
5851(b)(3)(D).
As originally enacted in 1978, § 5851(a)(2)’s
roster of employers who are prohibited from
retaliatory discrimination listed only three classes.
Department of Energy (“DOE”) contractors were not
among these three, a fact made clear in 1991 when
the Fourth Circuit upheld the dismissal of an ERA
complaint filed by an employee of a DOE contractor
on the ground that § 5851 “protects only employees
of NRC licensees and their contractors and not
employees of DOE contractors.” Adams v. Dole, 927
F.2d 771, 778 (4th Cir. 1991).
Congress plugged the hole Adams had uncovered
by enacting the Energy Policy Act of 1992, 16 U.S.C.
§ 2601 et seq. and 42 U.S.C. § 13201 et seq., which
effectively countermanded Adams’ holding by
expressly adding “a contractor or subcontractor of
the” DOE to the roster of “employers” prohibited
21
from retaliating against whistleblowing employees. §
5851(a)(2)(D).
Like “DOE contractors,” the NRC also was not
included amongst the three “employers” on § 5851’s
original, i.e., 1978 list of employers. This fact became
obvious—and problematic—in 2002 when OSHA
dismissed an NRC contractor’s ERA complaint on
the ground that the ERA did not protect NRC
employees (or the employees of NRC contractors
because the NRC was not listed on § 5851(a)(2).
Bath v. NRC, ARB No. 2002-0041, ALJ No. 2001ERA-00041 (ARB Sept. 29, 2003).
As Congress did immediately after Adams had
pronounced that § 5851(a)(2) did not cover DOE
employees, Congress took speedy steps to fix what
the Bath decision had identified as a similar
problematic omission in § 5851(a)(2). Thus, on April
7, 2003, shortly after the initial ALJ decision in
Bath, the Chair of the House Subcommittee on
Energy and Air Quality, Rep. Joe Barton (R. Tex.),
introduced the “Energy Policy Act of 2003,” H.R.
1644 (108th Cong. 2003), which expressly added the
NRC to § 5851(a)(2)’s list of employers under the
ERA.
The following day, the Chair of the full House
Committee on Energy and Commerce, Rep. W.J.
“Billy” Tauzin (R. La.), submitted a Report on
proposed H.R. 1644, explaining that the proposed
bill’s “Whistleblower Protection” provision “expands
the definition of employer under section 211(a)(2) of
the [ERA] to include all DOE and NRC Federal
employees, and all contractor and subcontractor
employees of DOE and NRC.” H. Rept. 108-65--Part
1, at p. 160 (108th Cong. 2003). That Report
22
explained that “[i]t is intended that this provision
would cover acts of retaliation regardless of whether
… the source of retaliation comes from a government
or contractor ….” Id.
Although Congress failed to pass the proposed
legislation in 2003, it enacted an identical
amendment to § 5851 in 2005, and for the same
purpose, this time as P.L. 109-58, 119 Stat. 594.
Section 629 of that Public Law amended the ERA §
5851’s “Definition of Employer,” 42 U.S.C. § 5851(a)
(2), by adding, at the end, the following: ‘‘(E) a
contractor or subcontractor of the [Nuclear
Regulatory] Commission; ‘‘(F) the Commission,” i.e.,
the NRC; and ‘‘(G) the Department of Energy.’’
In short, before the 2005 amendment was
enacted, the NRC was not subject to, and NRC
employees like the petitioners here were not
protected by, the ERA. After that amendment
became law, NRC employees became covered in the
same way and to the same extent that all other
employees of § 5851(a)(2) employers are covered.
1. Congress’ 2005 Amendment to the
ERA Unambiguously Shows the NRC
is Subject to Suit for Violating the
Whistleblowing
Rights
of
NRC
Employees
In amending § 5851(a)(2)(F), Congress added “the
Commission,” i.e., the NRC, to § 5851(a)(2), as an
“employer” prohibited from “discriminat[ing] against
employees” under § 5851(a). The two words, “the
Commission,” that Congress added to § 5851 in 2005
through § 5851(a)(2)(F), have a plain meaning and
an unambiguous import. These words express
Congress unequivocal intent to prohibit “the
23
Commission,” i.e., the NRC, from discriminating
against its employees in retaliation for their
protected activities in disclosing nuclear safety risks
to the public.
II.
THE FOURTH CIRCUIT ERRED IN
HOLDING
THE
ERA
IS
TOO
“AMBIGUOUS” TO BE ENFORCED BY
NRC EMPLOYEES
The Fourth Circuit first justifies its decision to
dismiss Dr. Peck’s complaint by asserting that, in
the abstract, the relationship between the words
“employer” and “person” is, at best, ambiguous. The
Fourth Circuit posits this ostensible ambiguity is
dispositive in this case because the Dictionary Act, 1
U.S.C. § 1, generally excludes the federal
government as a person and because of “a general
presumption that the word ‘person’ does not include
the sovereign.” 996 F.3rd at 231 (citations omitted).
The Fourth Circuit fails to appreciate that both
elements of this part of its sovereign immunity
argument—(a) the “general presumption” that a
federal agency is not a person, and (b) the Dictionary
Act’s longstanding omission of the Government from
its definition of a “person”—not only is rebuttable, in
theory, but completely rebutted in this case by an
analysis of the ERA’s text, structure, statutory
history, and purpose (as Petitioners demonstrated
above).
A.
The Dictionary Act Does Not Shield
the NRC from Liability
Ironically, the Fourth Circuit ignores the plain
words of the Dictionary Act, which vitiate its
application to these cases. The Dictionary Act does
not say the Federal Government can never be
24
construed as a “person.” To be sure, the Dictionary
Act omits the Government from among the eight
types of natural and artificial persons that are
“include[d]” in its definition of “person,” a definition
courts are instructed to use “[i]n determining the
meaning of any Act of Congress.” 1 U.S.C. §1.
Significantly, however, the Dictionary Act’s very
first line clarifies that the Act’s exclusion of the
Government from the definition of a “person” is not
absolute. Rather, the Act explicitly explains that its
omission of the Government from definition of a
“person” is binding “unless the context indicates
otherwise.” This Court recently highlighted the
importance of this express caveat to the Dictionary
Act. See Return Mail, Inc. v. U.S.P.S., 139 S. Ct.
1853, 1862 (2019).
Consequently, and contrary to the Fourth Circuit,
the Dictionary Act’s built-in “unless context”
exception means that the “general presumption” the
Fourth Circuit relies upon—the presumption “that
‘person’ does not include the sovereign,’ and thus
excludes a federal agency” like the NRC—“is not a
“‘hard and fast rule of exclusion,’” Return Mail, 139
S. Ct at 1861-62 (emphasis added; citations omitted),
and certainly is not a dispositive rule. See United
States v. Cooper Corp., 312 U. S. 600, 604–605
(1941).
Indeed, as this Court explained two years ago
(and as Petitioners detail below), a court may
disregard both the “longstanding presumption” and
the Dictionary Act merely “upon some affirmative
showing of statutory intent to the contrary.” Return
Mail, 139 S. Ct at 1862 (emphasis added; citing
Vermont Agency of Natural Resources v. United
States ex rel. Stevens, 529 U. S. 765, 781 (2000)).
25
B.
The
2005
Amendment’s
Specific
Inclusion of the NRC Overcomes the
Dictionary Act’s General Exclusion
Return Mail and Vermont Agency are consistent
with what this Court has long said about what might
be labeled as “the government-never-can-be-a-person
presumption” (and the Dictionary Act’s omission of
the Government among its definition of a “person”),
which is that presumption may be overcome
whenever “‘[t]he purpose, the subject matter, the
context, [or] the legislative history ... indicate an
intent’ ” to include the Government. Int’l Primate
Protection League v. Admin. of Tulane Educ. Fund,
500 U.S. 72, 83 (1991) (quoting Cooper, 312 U.S. at
605).
In these cases, the “context[ual]” factors that
abound in the ERA and § 5851 provide much more
than “some affirmative showing of statutory intent
to the contrary”; instead, the ERA’s and § 5851’s
“context[ual]” factors provide a substantial
affirmative showing that Congress, through its 2005
amendment to § 5851 aimed to have courts treat the
NRC as a “person.”
1.
Congress’s 2005 Inclusion of the
NRC Was Unambiguous
Although the Fourth Circuit insists that
Congress’ failure to define “employers” as “persons”
and vice versa renders § 5851(b)(1) too ambiguous to
be sensibly construed and reliably enforced and
although the Fourth Circuit further insists that
“persons” might mean some entities besides
“employers,” the Fourth Circuit never says or even
hypothesizes who, besides “employers,” the ERA
might cover. As discussed above, the ERA’s frequent
26
use of person and employer interchangeably shows
that although Congress might have been even more
precise in minimizing its use of synonyms, no
reasonable reader could be confused about Congress’
intent and purpose in its 2005 amendment to §
5851(a)(1), which, through § 5851(a)(1)(E), expressly
added “the Commission” to the list of employers who
are prohibited from retaliatory discrimination
against their employees under the ERA.
2.
Congress Commonly “Express[es]
the Same Ideas in Different Words.”
The fact that the Fourth Circuit finds § 5851(b)’s
garden-variety use of interchangeable words—
specifically “person” for “employer”—is unacceptably
“ambiguous” says more about that court than about
Congress. Thus, from the Republic’s founding until
now, Congress often has “express[ed] the same ideas
in different words,” Curran v. Arkansas, 56 [15 How.]
U.S. 304, 310 (1853), i.e., through interchangeable
words and synonyms, and courts have long accepted
this practice. See, e.g., Wise v. Withers, 7 [3 Cranch]
U.S. 331, 336 (1806) (per Marshall, C.J.); CSX
Transp., Inc. v. Ala. Dept. of Revenue, 562 U.S. 277,
284 n.6 (2011).
As Justice Scalia explained, “[t]hough one might
wish it were otherwise, drafters more than rarely
use the same word to denote different concepts ....”
Antonin Scalia & Bryan A. Garner, READING LAW:
THE INTERPRETATION OF LEGAL TEXTS, ch. 25,
Presumption of Consistent Usage, 170 (2012). As 200
years of case law, from Wise (in 1806) to CSX
Transp. (in 2011) illustrates, the converse also is
true. Here, as demonstrated above, § 5851(b)(1)’s
words and “context” provide much more than “some
27
affirmative showing” of Congress’ intent that courts
construe “persons” and “employer” the same way.
Instead, the context of § 5851 and the ERA make
clear that Congress used “person” and “employer”
interchangeably. Moreover, even if the Fourth
Circuit correctly “conclude[d]” that § 5851(b) was
indecipherably ambiguous “because it is susceptible
to more than one reasonable interpretation,”
Maharaj v. Stubbs & Perdue, P.A. (In re Maharaj),
681 F.3d 558, 568 (4th Cir. 2012), the Fourth Circuit
had no choice but to seek and honor an
“‘interpretation which can most fairly be said to be
imbedded in the statute, in the sense of being most
harmonious with its scheme and with the general
purposes that Congress manifested.’” Comm'r of
Internal Revenue v. Engle, 464 U.S. 206, 217 (1984)
(citations omitted). As the Kisor Court admonished:
before concluding that a rule [or statute] is
genuinely ambiguous, a court must exhaust
all the “traditional tools” of construction. …
That means a court cannot wave the
ambiguity flag just because it found the
regulation or [statute] impenetrable on first
read. Agency regulations [or Congressional
enactments] can sometimes make the eyes
glaze over. But hard interpretive conundrums,
even relating to complex rules, can often be
solved. … To make that effort, a court must
“carefully consider[]” the text, structure,
history, and purpose of a regulation, in all the
ways it would if it had no agency to fall back
on.
139 S. Ct. at 2415 (emphasis added; citations
omitted).
28
Although the Fourth Circuit acknowledged that it
was required to use the traditional interpretive tools
and to give words their “‘ordinary meaning,’” the
Court of Appeals barely skimmed over § 5851’s text
and structure and never actually “considered”—let
alone “carefully considered”—§ 5851’s “history and
purpose.” Kisor, 139 S. Ct. at 2415. Instead, the
Fourth Circuit, like the federal agency that was the
defendant in Kisor, “wave[d] the ambiguity flag.” Id.
This was the Fourth Circuit’s mistake, not
Congress’.
3.
The Fourth Circuit’s Decision
Improperly Attempts to Override
Congressional Intent by Rendering
the Words Congress Carefully
Chose to be Utterly Superfluous
and Ineffective
The Fourth Circuit’s conclusion that the word
“person” is too ambiguous to equate to “employers”
contravenes two of most important maxims of
statutory construction: “[t]he presumption against
ineffectiveness”
and
“[t]he
canon
against
surplusage.”
The “presumption against ineffectiveness”
reflects “the idea that Congress presumably does not
enact useless laws.” United States v. Castleman, 572
U.S. 157, 178 (2014) (Scalia, J., concurring). See
United States v. Hayes, 555 U.S. 415, 427 (2009).
The canon against surplusage encompasses a
similar interpretative instruction, specifically that
courts should “give effect, if possible, to every word
Congress used.” Nat’l Ass’n of Mfrs. v. Dept. of
Defense, 138 S. Ct. 617, 632 (2018). As Justice Scalia
explained:
29
the canon against superfluity follows
inevitably
from
the
facts
that
(1)
interpretation always depends on context, (2)
context always includes evident purpose, and
(3) evident purpose always includes
effectiveness, and the presumption against
ineffectiveness ensures that a text's
manifest purpose is furthered, not hindered.
Scalia & Garner, READING LAW, ch. 4,
Presumption Against Ineffectiveness 63.
As Justice Scalia additionally stressed regarding
the use of synonyms, courts should be ever-mindful
of the real-world consequences of a decision that
renders a statute’s key—even if “synonym[ous]”—
provisions useless and unenforceable surplusage: “if
forced to choose between (1) assuming Congress
enacted text that serves no purpose at all, … and (3)
assuming Congress employed synonyms to express a
single idea, the last is obviously the least evil.”
Hamilton v. Lanning, 560 U.S. 505, 529 (2010)
(Scalia, J., dissenting).
C.
This Court’s 2008 Decision in GomezPerez v. Potter Points to the
Conclusion that Congress Waived
Sovereign Immunity Regarding the
NRC
This Court’s 2008 decision in Gomez-Perez
provides a paradigmatic example of how courts
should aim to understand—and effectuate—
Congress’ purpose in the sovereignty immunity
context.
Gomez-Perez held the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621
et seq., “unequivocally waives sovereign immunity
30
for a claim brought by ‘[a]ny person aggrieved’ to
remedy a violation of § 633a.” 553 U.S. at 491.
(Emphasis added).
What makes Gomez-Perez helpful for this case
were the few and simple terms this Court said
completely satisfied its “strict[]” standard for
sovereign immunity waivers, 553 U.S. at 491, terms
that are functionally identical to the terms Congress
employed in crafting § 5851(b)(4). According to
Gomez-Perez, the relevant language in ADEA, §
633a(c), constitutes an “unequivocal[] waive[r]” of
sovereign immunity, 553 U.S. at 491, merely says:
Any person aggrieved may bring a civil action
in any Federal district court of competent
jurisdiction for such legal or equitable relief as
will effectuate the purposes of this chapter.
Id. (quoting ADEA, 29 U.S.C. § 633a(c)).
In this case, ERA § 5851(b)(4) similarly says:
If the Secretary [of Labor] has not issued a
final decision within 1 year after the filing of a
complaint under paragraph (1), and there is
no showing that such delay is due to the bad
faith of the person seeking relief under this
paragraph, such person may bring an action
at law or equity for de novo review in the
appropriate district court of the United States,
which shall have jurisdiction over such an
action without regard to the amount in
controversy.
42 U.S.C. § 5851(b)(4).
Tellingly, Gomez-Perez held that ADEA § 633a(c)
waives sovereign immunity even though it does not
say an “aggrieved person may bring an action for …
relief” against the United States (or against any
31
federal department, agency, instrumentality, or
facility) or anything similar. Gomez-Perez clearly
stands for the principle that a waiver does not need
to say anything so specific.
Like the NRC in this case, the federal
government, as the defendant in Gomez-Perez,
insisted that every statutory provision related to the
waiver in question—or, more precisely, every
statutory provision that explains which classes of
persons can sue a federal agency (because of the
waiver) and every statutory provision that explains
which federal agencies are subject to suit (because of
the waiver)—must meet the “same high hurdle” of
clarity in the form of certain magic words expressly
stating that the federal government may be an object
of the suit. 553 U.S. at 491.
Unlike the Fourth Circuit in this case, this Court
in Gomez-Perez rejected that argument, stating:
[the government defendant] is of course
correct that “[a] waiver of … sovereign
immunity must be unequivocally expressed in
statutory text” and “will be strictly construed,
in terms of its scope, in favor of the sovereign.”
But this rule of construction is satisfied here.
Subsection (c) of [ADEA] § 633a unequivocally
waives sovereign immunity for a claim
brought by “[a]ny person aggrieved” to remedy
a violation of § 633a. Unlike § 633a(c), §
633a(a) is not a waiver of sovereign
immunity; it is a substantive provision
outlawing “discrimination.” That the waiver in
§ 633a(c) applies to § 633a(a) claims does not
mean that § 633a(a) must surmount the same
high hurdle as § 633a(c). [Thus,] where one
statutory provision unequivocally provides for
32
a waiver of sovereign immunity to enforce a
separate [substantive] statutory provision,
that latter provision “‘need not ... be construed
in the manner appropriate to waivers of
sovereign immunity.’”
553 U.S. at 491 (citing White Mountain Apache
Tribe, 537 U.S. at 472-73).
Given the overlapping, hand-in-glove nature of
the ADEA’s substantive/prohibitory and the ADEA’s
waiver/jurisdictional provisions it is not surprising
that
the
Equal
Employment
Opportunity
Commission (“EEOC”), the agency charged with
adjudicating ADEA claims by federal employees
against federal agencies, has consistently recognized
that the NRC is subject to suit and damages under
the ADEA.6
D.
Other Recent Decisions by this Court
Provide Additional Support in Favor
of
Construing
the
ERA’s
2005
Amendment as a Waiver of Sovereign
Immunity
The precedents Gomez-Perez relied on in
explaining which standard courts should employ in
evaluating which kinds or classes of persons
Congress permitted to sue to seek remedies for
discrimination—and which federal departments and
agencies Congress allowed to be held liable in court
for workplace discrimination—demonstrate that the
See, e.g., Edgardo D. v. NRC, EEOC Docket No.
0120172572, 2019 WL 1011577, at *7 (E.E.O.C. Feb. 12, 2019);
Joseph D v. NRC, EEOC Docket No. 0120180036, 2018 WL
1109739, at *2 (E.E.O.C. Feb. 13, 2018); Harris v. NRC,
EEOC Docket No. 0120120178, 2013 WL 1182289, at *9
(E.E.O.C. Mar. 15, 2013).
6
33
test courts should use for these purposes is far less
stringent than the “unequivocally expressed”
standard that must be satisfied to establish waiver
itself.
Thus, in 2003, White Mountain Apache instructed
that:
a statute creates a right capable of grounding
a claim within the waiver of sovereign
immunity if, but only if, it “can fairly be
interpreted as mandating compensation … for
the
damage
sustained.
This
“fair
interpretation” rule demands a showing
demonstrably lower than the standard for the
initial waiver of sovereign immunity. “Because
the Tucker Act supplies a waiver of immunity
for claims of this nature, the separate statutes
and regulations need not provide a second
waiver of sovereign immunity [for the
remedy], nor need they be construed in the
manner appropriate to waivers of sovereign
immunity. It is enough, then, that a statute
creating a Tucker Act right be reasonably
amenable to the reading that it mandates a
right of recovery in damages. While the
premise to a Tucker Act claim will not be
“lightly inferred,” a fair inference will do.
537 U.S. at 472-73 (2003) (brackets and emphasis
added; internal citations omitted).
Gomez-Perez, White Mountain Apache, and their
progeny teach three lessons. First, while a “canon”
can be useful tiebreaker, Kisor, 139 S. Ct. at 2430
(Gorsuch, J., joined by Thomas, Alito, & Kavanaugh,
JJ., concurring), the sovereign immunity canon is
“just that—a canon of construction,” a mere “tool for
34
interpreting the law,” and one which “we have never
held that it displaces the other traditional tools.”
Richlin Security Service Co. v. Chertoff, 553 U.S.
571, 589 (2008). See Chickasaw Nation v. United
States, 534 U.S. 84, 94 (2001) (canons “are not
mandatory rules,” but are “guides that ‘need not be
conclusive.”).
Second, multiple statutory provisions may bear
on the primary question of whether Congress has
waived immunity and on secondary questions
regarding who may sue and whom may be sued.
Gomez-Perez, 553 U.S. at 491.
Third and finally, Congress does not need to
waive immunity twice with mirror provisions for
prohibitions and remedies. Because substantive
provisions and waiver/liability/remedy provisions
should be read in pari materia, different provisions
may be examined under disparate levels of scrutiny:
while core provisions related to waiver must
“unequivocally express” the right to seek redress,
provisions regarding who may sue and whom may be
sued must be tested under a far less stringent “fair
interpretation”-“fair inference” standard. White
Mountain Apache, 537 U.S. at 472-73.
The Fourth Circuit’s decision in these cases was
wrong because that court completely ignored each of
these three precepts.
35
III.
THE FOURTH CIRCUIT ERRED IN
CONCLUDING THE ERA PROVIDES
WHISTLEBLOWING EMPLOYEES WITH
REAL AND EFFECTIVE REMEDIES TO
NRC EMPLOYEES, “JUST NOT THE
REMEDY THE PETITIONER[S] WANT.”
The Fourth Circuit finally posited two reasons
why Dr. Peck’s argument “that our finding no waiver
of sovereign immunity makes the addition of the
NRC to the substantive section a useless and merely
symbolic amendment” fails “[a]s a matter of both law
and logic” and why effective remedies actually
“accompany the statute’s protection, … just … not
the remed[ies] the petitioner[s] want[].” A17.
Neither of those two reasons defy scrutiny.
First, the Fourth Circuit hypothesized that
because “Congress can create a private right with no
private remedy without enacting a nullity,” A16
(citations omitted), Congress’ amendments to the
ERA are not ineffective surplusage because
unspecified “Federal agencies may enforce the right.”
A17 (citation omitted). This argument fails because
federal agencies lack jurisdiction to enforce rights
unless specifically authorized to do so. Indeed, the
Court’s opinion on this score begs the question:
which “federal agencies,” of the hundreds that exist,
has the authority to “enforce” the ERA against the
NRC on behalf of an aggrieved whistleblower like
Dr. Peck.
Second, the Fourth Circuit imagined that the
ERA amendments are not ineffective surplusage
because “[t]he NRC has an Inspector General who
could use the prohibition as a basis for internal
discipline against or even termination of supervisors
36
who violate the whistleblower protections.” A17. This
argument fails because the most the NRC’s IG can
do is to recommend that offending supervisors be
disciplined. The NRC IG cannot effect—or even
urge—the crucial relief Congress provided in the
ERA: “reinstat[ing] the complainant to his former
position together with the compensation (including
back pay), terms, conditions, and privileges of his
employment.” 42 U.S.C. § 5851(b)(2)(ii).
Because Congress is presumed to know that each
of these two alternative forms of relief existed before
it decided to amend the ERA, the fact that Congress
amended the ERA despite this knowledge
demonstrates that Congress thought amending the
ERA was necessary and wise and not redundant or
superfluous.7 In this light, the Fourth Circuit’s
decision is an affront to the separation of powers
because Article III courts must “defer to legislative
judgment as to the wisdom and necessity … of a
particular measure,” U.S. Trust, 431 U.S. at 23, and
must refuse to sit as a “super legislature to weigh
the wisdom of legislation.” Ferguson, 372 U.S. at
729-32. 8
Such deference is particularly important when
Congress amends a statute, because amendments
implicate one of the few “absolute … interpretative
principles” in the law. King, 576 U.S. at 502 (Scalia,
As noted above, this Court “presume[es] … “Congress
does not enact useless laws.” Castleman, 572 U.S. at 178
(Scalia, J., concurring). See United States v. Hayes, 555 U.S.
415, 427 (2009).
8
See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 545
(2005); Williamson v. Lee Optical of Oklahoma Inc., 348 U.S.
483, 487 (1955).
7
37
J., joined by Thomas, and Alito, JJ., dissenting).
There are two reasons why.
First, “the canon against surplusage is strongest
when an interpretation would render superfluous”
not merely a word or phrase of a statute but another
section “of the same statutory scheme,” Marx v. Gen’l
Revenue Corp., 568 U.S. 371, 386 (2013) (emphasis
added). This is particularly important when, as here,
the companion section “occupies so pivotal a place in
the statutory scheme.” Duncan v. Walker, 533 U.S.
167, 174 (2001).
Second, the canon against surplusage is stronger
still when a court is not merely construing a statute
whose distinct provisions and sections were enacted
simultaneously but when Congress subsequently
adds a new section through a statutory amendment.
“When Congress amends legislation, courts must
‘presume [Congress] intends [the amendment] to
have real and substantial effect.’” Ross, 578 U.S. at
642 (emphasis added; quoting Stone v. INS, 514 U.S.
386, 397 (1995)). Therefore, “courts must construe
statute to give effect, if possible, to every provision,”
especially those provisions added when “Congress …
amend[s] a statute.” Stone, 514 U.S. at 397
(emphasis added). United States v. Quality Stores,
Inc., 572 U.S. 141, 148-49 (2014).
For these reasons, giving full effect to a
substantive statutory amendment is not a
suggestion: it is a command. The Fourth Circuit
ignored this command and “instead acted as though
the amendment … had not taken place.” Ross, 136 S.
Ct. at 1858.
38
CONCLUSION
The Fourth Circuit grossly erred, as a matter of
law, in concluding that Congress had not waived the
sovereign immunity of the NRC from suit by its
employees under the Employee Protection provision,
42 U.S. § 5851, of the Energy Reorganization Act of
1974, as amended in 2005, 42 U.S.C. § 5801 et seq.,
where, as here, the agency retaliated against two of
its own whistleblowing employees for trying to
protect the public from the dangers of nuclear power.
The Fourth Circuit’s decisions to construe the
ERA as insuperably unambiguous does worse than
transform Congress’ 2005 amendment into
meaningless surplusage. In so doing, it also deprives
NRC employees of the remedies and the means of
deterrence Congress unquestionably intended them
to have. In so doing, the Fourth Circuit’s decisions
transforms the ERA’s guarantees into “only a
promise to the ear to be broken to the hope, a teasing
illusion like a munificent bequest in a pauper's will.”
Edwards v. California, 314 U.S. 160, 186 (1941)
(Jackson, J., concurring).
The Court should not permit the Fourth Circuit’s
deeply misguided decisions to stand. For the reasons
set forth above, Petitioners Michael S. Peck, Ph.D.,
and Lawrence Criscione request that this Court
either grant certiorari or summarily reverse the
decision below.
Respectfully submitted,
/s/ Ned Miltenberg
NED MILTENBERG
Counsel of Record
LAW OFFICES OF NED MILTENBERG
AND GOVERNMENT ACCOUNTABILITY PROJECT
39
5410 Mohican Road — Suite 200
Bethesda, MD 20816
202-656-4490
NedMiltenberg@gmail.com
JOHN M. CLIFFORD
BILLIE P. GARDE
CLIFFORD & GARDE, LLP
815 Black Lives Matter Plaza, NW
Suite 4082
Washington, DC 20006
202-912-5000
JOHN A. KOLAR
GOVERNMENT ACCOUNTABILITY PROJECT
1612 K Street, NW — Suite 1100
Washington, DC 20006
202-457-0034
Counsel for Petitioners
Washington, DC
November 29, 2021
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