Petition for Writ of Certiorari — Bricker v. Rockwell Hanford Operations

St ou iA.

TIL D

94120 JUL 1 41994

OS ciel

In The

Supreme Court of the United States

October Term, 1994

———————— 2 a

EDWIN L. BRICKER and CYNTHIA

BRICKER, husband and wife,

Petitioners,

ROCKWELL HANFORD OPERATIONS,

a division of ROCKWELL

INTERNATIONAL CORPORATION,

WESTINGHOUSE ELECTRIC

CORPORATION, and WESTINGHOUSE

HANFORD COMPANY,

Respondents.

eee + ennui

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit.

4

PETITION FOR WRIT OF CERTIORARI

+

T.M. Guyer & Frienvs, P.C.

THAD M. Guyer

Counsel of Record

221 West Main Street, Suite 1

Medford, OR 97501

(503) 773-9656

Government Accountability

Project

THomas M. DEeEvINE

THoMaAS E. CARPENTER

810 First Street, N.E., Suite 630

Washington, D.C. 20002

(202) 408-0034

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 3422831

QUESTIONS PRESENTED FOR REVIEW

I. ARE A PRIOR HISTORY OF FAILED WHIS-

TLEBLOWER LEGISLATION, AND THE SUBSEQUENT

PASSAGE OF THAT “ALTERNATIVE REMEDY” LEGIS-

LATION AFTER FILING OF A BIVENS ACTION, SUFFI-

CIENT TO DEMONSTRATE THAT CONGRESS DID NOT

INADVERTENTLY DENY A COMPREHENSIVE REM-

EDY TO WHISTLEBLOWERS AT DEPARTMENT OF

ENERGY NUCLEAR FACILIrIES?

Il. ARE NON-CONGRESSIONALLY CREATED

ADMINISTRATIVE REMEDIES WHICH ARE NOT PART

OF A COMPREHENSIVE REMEDIAL SCHEME SUFFI-

CIENT TO CONSTITUTE A “SPECIAL FACTOR” FOR

NOT ALLOWING A BIVENS REMEDY?

Hl. IS THE SEPARATION OF POWERS DOCTRINE

VIOLATED BY ALLOWING A NON-CONGRESSION-

ALLY CREATED ADMINISTRATIVE REMEDY OF AN

EXECUTIVE DEPARTMENT TO PRECLUDE A BIVENS

REMEDY?

PARTIES TO THE PROCEEDINGS BELOW

The names of all parties to the proceedings, and their

parent and subsidiary corporations, appear in the caption

of the case.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

PARTIES TO THE PROCEEDINGS BELOW......... ii

pf ee gs iv

REPORTS AND OPINIONS BY OTHER COURTS

So bandh abwc ne eee eeveveseunn oi

CoP PUPEEeee WPI PUUIREEEG EIOWIN 2... 2 cee ee cee ees

CONSTITUTIONAL, STATUTORY AND REGULA-

BRS POV Ge ENV UILVED . 2.2.5. cece eee.

United States Constitution ...........cccccccccces

Energy Reorganization Act of 1974, as amended

eure UN head acnes cee uasne¥des

peeoenac Eieny Act OF 1906... . 02 cece ceceeces

National Labor Relations Act....................

Regulations and Orders of Department of Energy

CONCISE STATEMENT OF MATERIAL FACTS.....

BASIS OF JURISDICTION IN DISTRICT COURT...

ARGUMENT FOR ALLOWANCE OF THE WRIT...

Summary of Grounds for Review................

Statutory Construction and Bivens Actions .......

Non-Congressionally Created Administrative

a Reine sa 4s Fa va an V4 oe GA Oe 58% O08

ee G La eins Use vse KN hess ee wae aS

ee loys vada saseds App. 1

TABLE OF AUTHORITIES

Page

CASES

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 US 388 (1971)

errr eee reer CTT errr re Pere eT ee ae S, 10, 11, 13, 15

Bush @. Laces, G62 US Ser CiPGOn cas cede cecisneess 10, 16

Carison 0. Green, 446 US. 14 (ISG). occ ccc ccwcsccvces 15

Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991)...... 8, 17

McCarty v. Madigan, 112 S. Ct. 1081 i. i Se 9 ae be:

Mistretta v. United States, 488 US 361 (1989)......... 18

Pension Ben. Guaranty Corp. v. LTV Corp., 110 S. Ct.

- 8 a reer err So rr rere re 12

Schweiker v. Chilicky, 887 US 412 (1988)... 10, 12, 15, 16

U.S. CONSTITUTION:

Se OE oe cs tag bea ts alee ]

I ea 0 a re eae l

ok Me Me O° reine ere epee compe 2

STATUTES:

ee Re I a, end woe ones ORES Re Re eE A l

gS , ee eer rere reer ere 8

OM a OO en eee en re. |

0 UOC section 158 ...............0c0ccc00s-s001. 1 :

BS a ri rr ae |

a I EE ob bv ops das cab candor enr eens L, oy 24

ee i ad a ek eee 9, 10

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS AND ORDERS:

Pr ee eB, & ss ere er ge er 4, 14

Ce Cee eee By oe acs os ob dee eee 4,14

TREATISES:

Tribe, American Constitutional Law (2d Ed. 1988) .... 18

REPORTS AND OPINIONS

BY OTHER COURTS AND AGENCIES

The United States District Court for the Eastern Dis-

trict of Washington entered an opinion and order dated

September 17, 1991, which is set forth in the appendix.

¢

GROUN FOR JURISDICTION

The judgment sought to be reviewed is the amended

opinion of the United States Court of Appeals for the

Ninth Circuit dated April 15, 1994. On the same date and

at the beginning of said amended opinion is an order

denying the petition for rehearing and rejection of the

suggestion for a rehearing en banc. The amended opinion

is verbatim of the original opinion of October 25, 1993,

with the exception of the short additions made in the

referenced order denying rehearing. This Court has juris-

diction to review the amended opinion by writ of cer-

tiorari pursuant to 28 USC section 1254(1).

o

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

United States Constitution:

Amendment I. Cengress shall make no law * * * abr-

idging the freedom of speech, or * * * to petition the

Government for a redress of grievances.

Amendment IV. The right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

came *”* .

Amendment V. No person shall be * * * deprived of

life, liberty, or property without due process of law * * *.

Energy Reorganization Act of 1974, as amended

1992:

42 USC section 5851. Employee Protection

(a) Discrimination against employee. (1) No

employer may discharge any employee or otherwise dis-

criminate against any employee with respect to his com-

pensation, terms, conditions, or privileges of employment

because the employee (or person acting pursuant to a

request of the employee) -

(A) notified his employer of an alleged viola-

tion of this Act or the Atomic Energy Act of 1954 (42 USC

2201 et seq.);

(B) refused to engage in any practice made

unlawful by this Act or the Atomic Energy Act of 1954, if

the employee has identified the alleged illegality to the

employer;

+ + *

(2) For purposes of this section, the term

“employer” includes —- * * * (D) a contractor or sub-

contractor of the Department of Energy that is indemni-

fied by the Department under section 170d. of the Atomic

Energy Act of 1954 ***.

(h) This section may not be construed to expand,

diminish, or otherwise affect any right otherwise avail-

able to an employee under Federal or State law to redress

the eraployee’s discharge or other discriminatory action

taken by the employer against the employee.

+ + *

Atomic Energy Act of 1954:

42 USC section 2201. General provisions

In the performance of its functions the Commission

[Department of Energy] is authorized to -

+ + *

(i) Regulations or orders. prescribe such regulations

or orders as it may deem necessary * * * (3) to govern

any activity authorized pursuant to this Act, including

standards and restrictions governing the design, location,

and operation of facilities used in the conduct of such

activity, in order to protect health and to minimize dan-

ger to life or property; * * *

National Labor Relations Act:

29 USC section 157. Rights of employees

Employees shall have the right to * * * engage in

other concerted activities for the purpose of * * * mutual

aid or protection ***.

29 USC section 158. Unfair labor practices

(a) Unfair labor practices by employer. It shall be a.

unfair labor practice for an employer - (1) to interfere

with, restrain, or coerce employees in the exercise of the

rights guaranteed in section 7 [29 USC section 157]; * * *

29 USC section 160. Prevention of unfair labor prac-

tices

(a) The [National Labor Relations] Board is

empowered, as hereinafter provided, to prevent any per-

son from engaging in any unfair labor practice (listed in

section 8) affecting commerce.

+ +

Regulations and Orders of Department of Energy:

48 CFR section 970.2201 Basic labor policies.

(b)(5) Collective bargaining. * * * (ii). In line

with the policy of assuring continuity of operation of

vital facilities, all collective bargaining agreements at

Government-owned energy installations should pro-

vide * * * an effective grievance procedure with arbitra-

tion as its final step, unless the parties mutually agree

upon some other method of assuring continuity of opera-

tions for the term of the agreement.

DOE Order 5483.1A Occupational Safety and Health

Program for DOE Contractor Employees at Government-

Owned Contractor-Operated Facilities

1. Purpose. To establish requirements and pro-

cedures to assure that occupational safety and health

standards prescribed pursuant to the Atomic Energy Act

of 1951, as amended, the Energy Reorganization Act of

1974, and the Department of Energy Act of 1977, provide

occupational safety and health protection for Department

of Energy (DOE) contractor employees * * * which is

consistent with the protection afforded private industry

employees by the occupational safety and health stan-

dards promulgated under the Occupational Safety and

Health Act of 1970 (OSHA), Public Law 91-596.

+¢ + &

I

7. Responsibilities and Authorities.

+ + +

d. (11) Require contractors to: * * * (b) Es-

tablish and implement programs and procedures in sup-

port of this Order which assure that: * * * 9. Contractor

employees who exercise their rights under this Order are

not discriminated against, as required by Chapter III

+ +

Chapter III. Nondiscrimination, Injury and Illness

Information, and Accident Prevention

1. Nondiscrimination.

a. No contractor shall discharge or in any man-

ner demote, reduce in pay, coerce, restrain, threaten, or

take any other negative actions against any contractor

employee as a result of the employee’s filing of a com-

plaint, or in any other fashion, exercising on behalf of

himself or herself or others any right set forth in this

Order.

b. Any employee who believes he or she has

been discharged or in any other manner discriminated

against, in violation of this Order, may file a complaint

with the cognizant CO [contracting officer] or CO repre-

sentative within 30 days after the alleged discrimination,

setting forth the nature of the alleged discrimination. The

CO or CO representative * * * shal! investigate the com-

plaint, and if it is found that such discrimination has

occurred, the field organization shall assure that appro-

priate measures are taken by the contractor, including

rehiring or reinstatement of the employee, restoration of

+ + +

lost seniority, and back pay.

— ?

CONCISE STATEMENT OF MATERIAL FACTS

Edwin Bricker was employed by the Rockwell Han-

ford Company at the government-owned, contractor-

operated (GOCO) nuclear facility known as the Hanford

Nuclear Operations. During his employment, he

observed the day-to-day operations of the plant, and

became aware of safety, health and environmental prob-

lems at the facility. Some of these problems implicated

only worker safety, while others concerned the health and

safety of neighboring communities. To address these

problems, Bricker contacted his supervisors, Westing-

house officials who became the managing contractor of

the facility in 1987, officials of the Department of Energy

(DOE), Congressional investigators, and the press. Unbe-

knownst to Bricker, some of these communications were

secretly monitored by Hanford plant management and

security personnel. However, he was never under suspi-

cion by management that he was leaking sensitive, classi-

fied or proprietary information to outside parties.

After learning his whistleblowing activities had been

surreptitiously monitored, Bricker also discovered

through corporate memoranda that security officials were

ordered to develop a plan to terminate him because of his

communications with Congress and the news media.

Rockwell and Westinghouse officials invaded wide rang-

ing aspects of Mr. and Mrs. Bricker’s lives, amassing

fourteen volumes of information about them. Security

personnel interrogated dozens of Mr. Bricker’s co-

workers and friends, alienating co-workers through the

use of threats and intimidation. They wiretapped his

phones, followed him, burglarized his home of significant

papers, and intercepted his private communications

using other surveillance devices and methods.

Security files on Bricker contained his religious litera-

ture, correspondence with Congress, and memoranda

speculating upon co-workers who “thought like Bricker”

or were “friends of Bricker.” Bricker was repeatedly

ordered to submit to mandatory psychiatric evaluations

by Hanford doctors. These orders always occurred after

he raised a significant safety or environmental concern.

These company doctors never found anything wrong

with him.

The DOE undertook an investigation of Mr. Bricker’s

complaints which culminated in a May 1990 report find-

ing that he had been subjected to a pattern and practice of

continued harassment and discrimination by Hanford

management. The report cited Hanford management's

improper use of forced psychiatric evaluations and the

use of the security investigations as a tool of harassment.

In order to provide some relief to Mr. Bricker, the DOE

suggested using the provisions of a proposed DOE rule

(which had not then been promulgated) as a guideline for

some type of hearing. Thereafter, Mr. Bricker, Westing-

house Hanford Company, and Kockwell International

agreed to accept the limited relief recommended by the

investigators. There were no covenants not to sue, nor

any other release of claims or rights. Because the harass-

ment continued, the Brickers filed the present suit for

money damages in the United States District Court.

¢

BASIS OF JURISDICTION IN DISTRICT COURT

Jurisdiction over Mr. Bricker’s speech, petition, pri-

vacy, and due process constitutional claims in the U.S.

District Court was granted by 28 USC section 1331. These

are federal questions under the First, Fourth, and Fifth

Amendments.

ARGUMENT FOR ALLOWANCE OF THE WRIT

Summary of Grounds for Review: There are two

primary grounds upon which this petition is based. First,

the Ninth Circuit’s decision is one upon an important

federal question which has been decided in a way which

conflicts with the applicable decisions of this Court

regarding actions under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 US 388 (1971); and

regarding more broadly the rules of statutory construc-

tion. Secondly, the Ninth Circuit’s decision is in conflict

with one of the Eighth Circuit regarding the disallowance

of a Bivens action based upon a non-Congressionally cre-

ated administrative remedy, and regarding the implica-

tions of this upon separation of powers doctrine. Krueger

v. Lyng, 927 F.2d 1050 (8th Cir. 1991).

Statutory Construction and Bivens Actions: The

Ninth Circuit erred in denying Bricker a Bivens remedy

on the grounds that the 1992 Amendments of the Energy

Reorganization Act evidenced a Congressional intent that

DOE contractor employees be limited to statutory

remedies. The 1992 remedy is neither “equally effective”,

nor a “special factor”. Prior to filing of this action, the

Energy Reorganization Act of 1974 (ERA), 42 USC section

5851, provided remedies only for employees of contrac-

tors of the Nuclear Regulatory Commission, but not for

those of the Department of Energy (DOE). Subsequent to

filing, however, the Congress amended the ERA to cover

DOE contractor employees as well.' Congress did this in

express recognition that “accounts of whistleblower

harassment at * * * DOE nuclear facilities (e.g., Hanford,

Oak Ridge, Rocky Flats) suggest that whistleblower

harassment and retaliation remain all too common in

parts of the nuclear industry.” (Bricker amended opinion

at p. 3693). In so amending the ERA, Congress speci-

fically provided:

This section may not be construed to expand,

diminish, or otherwise affect any right otherwise

available to an employee under Federal or State

law to redress the employee's discharge or other

discriminatory action taken by the employer

against the employee.

| There is nothing in the record below whatsoever which

establishes that the Brickers could have addressed any, much

less all, of their claims under the ERA, DOE order, etc., even

were they to apply to them. Whistleblower statutes protect not

classes (such as “DOE contractor employees”), but “activity”

defined by those statutes, i.e., whistleblowing. However, only

whistleblowing within a confined subject matter is protected.

The ERA, 42 USC sec. 5851 (a)(1)(A) and (B) cover protected

activity only so far as it involves blowing the whistle on “an

alleged violation of this chapter or the Atomic Energy Act of

1954” and/or regarding “any practice made unlawful” there-

under. For example, an NRC (or now DOE) contractor employee

who is a secretary blowing the whistle on theft of typewriters is

a “whistleblower”, and may have a remedy under some statute,

but not under the ERA, since the ERA regulates only certain

aspects of nuclear power and fuels, not theft of office equip-

ment.

10

42 USC sec. 5851(h), October 24, 1992 (emphasis added).

Despite this provision, the Ninth Circuit decision

holds, in sua sponte fashion,? that a subsequently enacted

statutory remedy for Bricker’s class of DOE-contractor

employees evidences past Congressional intent that the

class previously had no remedy under Bivens. If allowed to

stand, this decision will have far reaching effects on the

availability of Bivens remedies in virtually any judicial

context.

Under Bivens, a remedy may be implied by the courts

for constitutional violations where (1) Congress has not

provided an “equally effective alternative remedy”; or (2)

where “special factors” are present. The “special factor”

at issue here is whether there are indications that Con-

gressional failure to legislate an equally effective alterna-

tive remedy was “not inadvertent”. Never before has the

Supreme Court or any Court of Appeals held that the

subsequent enactment of a remedy could retroactively evi-

dence a Congressional intent that the affected class previ-

ously never should have had a Bivens or other remedy.*

2 Because the Energy Reorganization Act amendments of

1992, 42 USC sec. 5851, came subsequent to the briefing of this

case, no party’s brief addressed the effect of such subsequent

legislation on a pending Bivens claim. Nor did any party assert

at oral argument the rationale adopted by the panel decision.

3 The Supreme Court decisions to date had applied the Con-

gressional inadvertence analysis only to cases where Congress have

passed, not failed, “comprehensive” statutory schemes for address-

ing, or excluding, the wrongs complained of in the Bivens action.

Schweiker v. Chilicky, 887 US 412 (1988) and Bush v. Lucas, 462 US 367

(1983). Moreover, these statutory remedies were enacted before, not

after, the Bivens actions were filed.

ee TT Te

11

The Ninth Circuit did not rule on the effects of failed

ERA amendments preceding the Bivens action, but upon

those which passed subsequent to it. The decision states:

We need not attempt to discern Congress's

intent in 1978 when it passed section 210 of the

Energy Reorganization Act because we conclude

that Congress’s subsequent decision regarding

remedies for whistleblowers at DOE nuclear

facilities undermine the Brickers’ argu-

ment. * * * It is true that we must be reluctant to

draw conclusions concerning congressional

intent from the mere failure of bills to pass. Cf.

Balelo v. Baldridge, 724 F2d 753, 762-63 (9th

Cir.) * * * . Nevertheless, the various attempts at

legislation may suggest that Congress’s inaction,

whatever its reason, was not wholly inadver-

tent. Moreover, in 1992, Congress enacted

amendments to the Energy Reorganization Act

of 1974 that provide whistleblower protection

for employees at DOE nuclear facilities, includ-

ing a provision that allows recovery of compen-

satory damages — precisely the remedy that the

Brickers seek in this action. * * *

Through these amendments, which came too

late for the Brickers, Congress has provided an

elaborate and comprehensive remedial

scheme. *.* *

Bricker amended opinion at 3691 (emphasis added).4

4 The term “may” is emphasized to show that the Ninth

Circuit considered, but did not rule upon the effects of the failed

legislation. Instead, the panel chose to base its decision on the

effects of the subsequent amendments.

12

Having provided this legislative context, the Ninth

Circuit went on to emphatically hold, without any citation

of relevant precedent, that the subsequent amendments of

the ERA, not the prior failed bills, were fatal to the Bivens

claims:

These amendments, however, provide only pro-

spective relief; they apply to claims filed on or

after October 24, 1992, the date of enactment.

[Citations omitted]. The fact that the amend-

ments were given only prospective effect sug-

gest that Congress did not inadvertently fail to

provide relief to persons, such as the Brickers,

who filed claims before October 24, 1992. * * *

+ + +

We cannot create a Bivens remedy if there are

“indications that congressional inaction has not

been inadvertent” Schweiker, 487 US at 423; see

also McCarthy v. Madigan, 112 S Ct 1081, 1090

(1992) * * * . Because we cannot characterize as \

inadvertent Congress’s decision not to include

within its remedial scheme persons who filed

claims before October 24, 1992, we are pre-

cluded from implying a Bivens remedy for the

Brickers’ claims.

Bricker amended opinion at 3692-93.

There are two major problems with this holding.

First, this decision, as stated, is simply without precedent.

If it is to be the law, then it must be recognized as

creating an entirely new rule of statutory construction.

The Supreme Court in Pension Ben. Guaranty Corp. v. LTV

Corp., 110 S.Ct. 2668, 2678 (1990), stated:

[In construing a statute], subsequent legislative

history is a hazardous basis for inferring the

13

intent of an earlier Congress and is a partic-

ularly dangerous ground on which to rest an

interpretation of a prior statute when the subse-

quent history concerns a proposal that does not

become law; congressional inaction lacks per-

suasive significance, because several equally

tenable inferences may be drawn from such

inaction, including the inference that the exis-

ting legislation already incorporated the offered

change.

The ramifications for such an unprecedented new

approach are appropriate for Supreme Court review.

Non-Congressionally Created Administrative

Remedies:

The Ninth Circuit erred in denying Bricker a Bivens

remedy on the grounds that a combination of administra-

tive remedies and potential venues for complaint were

available to Bricker. These could not alone or in sum

constitute either an “equally effective alternative rem-

edy”, nor “special factor counselling hesitation”. The

amended opinion gives considerable weight to two

administrative procedures potentially available to

Bricker, both vaguely based on sentence-or-two enabling

legislation. (Bricker amended opinion at 3694-95). The

court gave no indication of how these could be used to

address community-wide environmental concerns, or the

types of retaliation which included wiretapping, surveil-

lance and intrusions to his home. Both of the lower courts

acknowledged that these sundry administrative and stat-

utory provisions fall short of what Supreme Court prece-

dents seem to literally require, but both courts accepted

them as enough to kill a Bivens action anyway:

14

The district court concluded that “[aithough]

these remedies, either alone or in combination,

do not constitute a comprehensive statutory

scheme, they are in fact a remedial mechanism

designed to provide relief in circumstances that

exist in the instant case[.]”

Bricker amended opinion at 3695.

The first is 48 CFR section 970.2201(b)(5){ii), which

simply requires all collective bargaining agreements

(CBA) to contain effective grievance procedures. The reg-

ulation contains no substantive or procedural] require-

ments or standards. This requirement for a CBA

grievance procedure is no more specific than the cited

provisions to the National Labor Relations Act (NLRA),

29 USC sections 157, 158 and 160. All the latter reference

are the rights of employees, in the broadest terms, to

engage in on-the-job “mutual aid or protection”, and to

complain to the NLRB about any employer action

believed to be an “unfair labor practice”. To accept the

logic of this argument equates to a holding that a Bivens

remedy against an employer for virtually any wrong is

per se closed off to anyone arguably protected by the

general scope of the NLRA.

The second administrative procedure cited by the

Ninth Circuit is DOE order 5438.1A, which by its owns

terms is limited to occupational safety and health con-

cerns. Additionally, except for the general language of 42

USC section 2201(i)(3) giving the DOE power to “protect

health and to minimize danger to life or property”, this

DOE order has been attributed to no Congressional

action.

—_

Ut

This Court’s decision in McCarty v. Madigan, 112 S.

Ct. 1081 (1992) addressed the issue of whether the exis-

tence of an “administratively” created remedy may con-

stitute a “special factor” under Bivens analysis.> In

McCarthy, the Bureau of Prisons argued that the existence

of a grievance procedure formally adopted and published

in the Code of Federal Regulations, and implemented

pursuant to a general grant of authority by Congress, was

dispositive of a prisoner’s Bivens suit. The Bureau did not

argue that the grievance procedure completely eliminated

Bivens relief.© Instead, the government asserted a much

more timid position that under the Chilicky analysis, the

grievance procedure should at least modify Carlson to

provide for an administrative exhaustion requirement.

The Supreme Court held that a non-congressionally

adopted grievance procedure could not even have that

effect. The Court stated at 117 L Ed 2d 303-04:

[R]espondents appear to confuse the presence of

special factors with any factors counseling hesita-

tion. * * * [Court’s emphasis].

> The Ninth Circuit amended its original opinion after Mr.

Bricker complained in his petition for rehearing that the court

had failed to consider an important U.S. Supreme Court deci-

sion rendered after the briefs were submitted, but presented at

oral argument. McCarthy v. Madigan, 112 S Ct 1081 (1992).

6 Prisoner actions under Bivens were approved in Carlson v.

Green, 446 US 14 (1980), eight years before the restrictive “Con-

gressional inadvertence” analysis adopted in Schweiker v. Chi-

licky, supra. It is significant that the Attorney General did not

argue that the grievance procedure should be used as a special

factor to overrule Carlson.

16

Interpreting the “special factors” exception in

Schweiker * * * and in Bush * * * [citations omit-

ted], the Court found the Bivens remedy dis-

placed because Congress had legislated an

elaborate and comprehensive remedial

scheme. * * * Here Congress has enacted noth-

ing.

As to the general grant of rulemaking authority to the

Bureau, the Court rejected that this could suffice as the

required Congressional involvement. The Court stated at

117 L Ed 2d 302:

We think respondents confuse what Congress

could be claimed to allow by implication with

what Congress affirmatively has requested or

required. By delegating authority, in the most

general terms, to the Bureau to administer the

federal prison system, Congress cannot be said

to have spoken to the particular issue whether

prisoners in the custody of the Bureau should

have direct access to the federal courts.

Despite this language which clearly questions consider-

ing non-Congressionally created remedies as a “special

factor”, the Ninth Circuit decision discounts it as merely

“some language that can be read as favorable to the

Brickers”. Bricker amended opinion at 3698.

The magnitude of Congressional involvement is at

the core and principle of special factors analysis. In Chil-

icky, the court described Congressional involvement and

the statutory scheme as follows:

[An] “elaborate remedial scheme devised by

Congress”, [487 US at 414;] * * * [an] “adminis-

trative structure and procedure * * * of a size

and extent difficult to comprehend”, [id at

17

424]; ** * [as providing] “judicial review, includ-

ing review of constitutional claims”,

[id]; * * * [as] “considerably more elaborate than

the civil service system considered in Bush”, [id

at 425]; * * * [and as representing] “Congres-

sional attention [that has] * * * been frequent

and intense”, [id.].

The Bush Court described Congressional involvement and

the statutory scheme as follows:

“{[A]n elaborate, comprehensive scheme”, 462

US at 385; * * * [that] “apply to a multitude of

personnel decisions that are made daily by fed-

eral agencies”; * * * [as imbued with a] “history

of the development of civil service remedies and

the comprehensive nature of the remedies cur-

rently available”; * * * [and as] “an elaborate

remedial system that has been constructed step

by step, with careful consideration to conflicting

policy considerations”; [id at 388].

Before the Bricker’s filed their Bivens action, there had

been no Congressional involvement of any significant

magnitude, much less any which could be deemed

“intense”, “comprehensive” or even “carefully consid-

ered”. Only after the Bricker’s filed their action did Con-

gress adopt the 1992 amendments to the ERA.

Additionally, to accept the argument that the submit-

ted DOE activity can be the basis for a district court to

defer remedy determinations to that agency is to disre-

gard constitutional separation of powers doctrine. In

Krueger at 1055, the 8th Circuit found: “Only Congress

has the power to decide that a statutory or administrative

scheme will foreclose a Bivens action.” The court elabo-

rated that:

18

To allow an administratively-created scheme to

foreclose a Bivens action, without some real indi-

cation that Congress intended the adminis-

tratively-created scheme to have that result,

would require us to hold that the legislative

power to foreclose a Bivens action has bee 1 dele-

gated — a delegation almost certainly in viola-

tion of the separation of powers doctrine.

See also, Tribe, American Constitutional Law (2d Ed. 1988),

pp. 363-64, and Mistretta v. United States, 488 US 361, 372

(1989), reiterating that no delegation of powers from the

Congress to the executive or judiciary may be effective

unless Congress has laid “down by legislative act an

intelligible principle to which the person or body * * * is

directed to conform”. Nothing cited by the Ninth Circuit

demonstrates that this standard has been met.

->

CONCLUSION

The petition for writ of certiorari should be granted,

and the Ninth Circuit decision should be reversed.

Respectfully submitted,

THAD M. Guyer

Attorney for Petitioner

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

‘\

EDWIN L. BRICKER; CYNTHIA

BRICKER, husband and wife,

Plaintiffs-Appellants, No. 91-36153

Vv. D.C. No.

ROCKWELL INTERNATIONAL CV-90-3090-AAM

CORPORATION; ROCKWELL HANFORD ORDER AND

CORPORATION; WESTINGHOUSE AMENDED

CORPORATION; WESTINGHOUSE OPINION

HANFORD CORPORATION,

Defendants-Appellees.

y,

Appeal from the United States District Court

for the Eastern District of Washington

Alan A. McDonald, District Judge, Presiding

Argued and Submitted

July 12, 1993—Seattle, Washington

Filed October 25, 1993

Amended April 15, 1994

Before: William C. Canby, Jr., Charles Wiggins and

Thomas G. Nelson, Circuit Judges.

Opinion by Judge Canby

SUMMARY

Individual Rights/Constitutional Rights/Labor and

Employment

The court of appeals affirmed a district court judgment. The

court held that a worker at a Department of Energy (DOE)

App. 2

nuclear facility could not seek money damages against DOE

contractors who allegedly violated his constitutional nghts by

harassing him for voicing safety concerns.

Appellant Edwin Bricker worked at the Hanford Nuclear

Reservation, a government-owned, contractor-operated

(GOCO) nuclear facility. A division of appellee Rockwell

International Corp. operated portions of the facility, and

appellee Westinghouse Hanford Co. was the management

contractor. Bricker and his wife sued Rockwell and Westing-

house, alleging that they violated Bricker’s constitutional

rights. The Brickers alleged that the companies subjected him

to various forms of harassment after he voiced his concerns

regarding safety, health and environmental problems at the

facility. The Brickers sought a Bivens remedy, money dam-

ages for the constitutional violations in an action under fed-

eral law against federal officers acting under color of their

authority.

Rockwell and Westinghouse filed a motion to dismiss the

claims, asserting that there were “special factors" that pre-

cluded the judicial creation of a Bivens remedy. The district

court granted the motion, finding that Congress’ failure to

extend whistleblower protection to employees of DOE con-

tractors was deliberate. Accordingly, the court found that

Congress’ decision not to provide the damages remedy sought

by the Brickers constituted a “special factor counseling hesita-

tion" within the meaning of a case that followed Bivens, pre-

cluding the Bivens remedy. The Brickers appealed.

[1] Statutory amendments providing whistleblower protec-

tion for employees at DOE facilities suggest that Congress did

not inadvertently fail to provide relief to persons who filed

claims at the time the Brickers did. [2] Thus, a Bivens remedy

cannot be implied for the Brickers’ claims.

[3] Moreover, remedies available to Bricker were sufficient

to bar the judicial creation of a Bivens remedy.

App. 3

COUNSEL

Thad Guyer, T.M. Guyer & Friends, P.C., Medford, Oregon;

Michael E. Withey, Schroeter, Goldmark & Bender, Seattle,

Washington, for the plaintiffs-appellants.

David F. Jurca and Mark F. Rising, Helsell, Fetterman, Mar-

tin, Todd & Hokanson, Seattle, Washington, for defendant-

appellee Rockwell International Corporation; William R.

Squires III, StuartR. Dunwoody, and Bergitta K. Trelstad,

Davis Wright Tremaine, Seattle, Washington, and Robert A.

Dutton, Assistant General Counsel, Westinghouse Hanford

Company, Richland, Washington, for defendant-appellee

Westinghouse Hanford Company.

ORDER

The opinion filed October 25, 1993 is amended by inserting

the following passage at slip op. p. 11980, immediately before

the section heading entitled ‘““Nondelegation Doctrine”:

The Brickers also rely on McCarthy v. Madigan,

112 S. Ct. 1081 (1992), which was decided after the

Brickers’ briefs were filed. At oral argument, the

Brickers asserted that McCarthy precludes a finding

that administratively created remedial schemes can

foreclose the creation of a Bivens remedy.

In McCarthy, the Court held that prisoners need

not exhaust the Federal Bureau of Prisons’ (Bureau)

grievance procedure before initiating a Bivens action

against prison employees. Although the McCarthy

opinion contains some language that can be read as

favorable to the Brickers, we conclude for two rea-

sons that McCarthy is not inconsistent with our hold-

ing here.

App. 4

First, the grievance procedure at issue in

McCarthy was qualitatively different from the reme-

dies available to the Brickers. See 112 S.Ct. at 1085

(“The general grievance regulations do not provide

for any kind of hearing or for the granting of any

particular type of relief.”) In contrast, as we already

have noted, the Brickers options included arbitration

(ultimately) under the CBA as well as potential rem-

edies under DOE Order 5438.1A and the NLRA.

Moreover, unlike the situation in McCarthy where

rhonetary damages were entirely unavailable to the

prisoner, DOE order 5438.1A expressly allowed

recovery of monetary damages, at least with respect

to back pay.

Second, the Court simply was not deciding the

issue that we decide today. The Court was consider-

ing the propriety of imposing an exhaustion require-

ment before institution of an already recognized

Bivens action. The policy considerations underlying

the Court’s exhaustion analysis are inapplicable to

the situation presented in this case. See Id., 112 S.Ct.

at 1087-88. For example, here there is no “doubt as

to whether the [NLRB or DOE were] empowered to

grant effective relief,” id. at 1088. See 42 U.S.C.

§ 2201(i)(3) (1988); 29 U.S.C. §§ 158, 160. This

case also does not arise in a context where “the

administrative body is shown to be biased or [to

have] otherwise predetermined the issue before it,”

id., because the DOE (at least with respect to GOCO

facilities) and the NLRB are not called upon to eval-

uate the rights of third-party’s against their own

employees when acting upon claims such as the

Brickers’.

In sum, we conclude that the Court did not, when

it decided the exhaustion issue presented in

McCarthy, preclude our holding here—that the com-

App. 5

prehensive administrative remedial mechanisms

available to the Brickers, viewed against the back-

ground of congressional inaction that was not inad-

vertent, prevents the creation of a new Bivens

remedy.

The panel has voted to deny the petition for rehearing and

to reject the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for an en

banc rehearing, and no judge of the court has requested a vote

on the suggestion for rehearing en banc. Fed.R.App. P. 35(b).

The petition for rehearing is denied and the suggestion for

a rehearing en banc is rejected.

OPINION

CANBY, Circuit Judge:

Edwin and Cynthia Bricker appeal the district court’s sum-

mary judgment in favor of the defendants in the Brickers’

action alleging violations of their federal constitutional nghts

and various tort claims under Washington state law. We

review de novo, Saul v. United States, 928 F.2d 829, 832 (9th

Cir. 1991), and we affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

In August 1990, Edwin Bricker and his wife Cynthia filed

this action against Rockwell Hanford Operations, a division

of Rockwell International Corporation (“Rockwell”), Wes-

tinghouse Electric Corporation, and Westinghouse Hanford

Company (“Westinghouse”). The Brickers’ complaint alleged

violations of their First, Fourth, and Fifth Amendment rights,

and several pendent state law claims. These claims stemmed

App. 6

from Edwin Bricker’s employment at the Hanford Nuclear

Reservation (“Hanford”), located in Washington State. Han-

ford is owned by the United States, but is managed by private

corporations pursuant to a contract with the Department of

Energy (“DOE”). Hanford therefore is known as a

government-owned, contractor-operated (“GOCO") nuclear

facility. Rockwell operated certain portions of Hanford from

July 1977 through June 28, 1987; Westinghouse became the

management contractor on June 29, 1987. Bricker was

employed at Hanford from July 1977 through August 1979,

when he left to attend college. Bricker returned to work at

Hanford in February 1983 and remained an employee there

until November 1991.

The Brickers’ complaint alleged that, while Edwin Bricker

was employed at Hanford, he became aware of safety, health,

and environmental problems at the facility. He voiced his con-

cerns about these matters to his supervisors, officials of Rock-

well and Westinghouse, members of Congress, and the news

media. The complaint further alleged that, in retaliation for

his “whistleblowing” activities, Rockwell and Westinghouse

subjected Bricker to various forms of harassment, thereby

violating Bricker’s federal constitutional rights and commit-

ting various state law torts. The Brickers’ constitutional

claims were predicated on the Supreme Court’s decision in

Bivens v. Six Unknown Named Agents of Fed. Bureau of Nar-

cotics, 403 U.S. 388 (1971).

In April 1991, Rockwell and Westinghouse filed a motion

to dismiss the Brickers’ constitutional claims for failure to

state a claim‘ and asserted that there were “special factors”

that precluded the judicial creation of a Bivens remedy. The

district court granted the defendants’ motion and dismissed

the Brickers’ constitutional claims with prejudice. Because

the dismissal of the federal claims eliminated the independent

‘The district court treated the motion to dismiss as one for summary

judgment as provided in Fed. R. Civ. Proc. 12(b).

a

App. 7

basis for subject matter jurisdiction, the court also dismissed

the Brickers’ pendent state claims without prejudice. This

appeal followed.”

Il. LEGAL FRAMEWORK

Whether a Bivens remedy can be implied for

“whistleblowers” employed at GOCO nuclear facilities is a

question of first impression in this circuit. Our analysis of this

issue, however, is guided by the Supreme Court’s articulation

of the factors that courts must consider when determining

whether to create a Bivens remedy. In Bivens, the Supreme

Court held that the victim of a Fourth Amendment violation

committed by federal officers acting under color of their

authority could bring an action under federal law for money

damages against the officers. 403 U.S. at 389. The Bivens

Court observed that “[t]he present case involves no special

factors counselling hesitation in the absence of affirmative

action by Congress.” Jd. at 396. The Supreme Court subse-

quently has allowed “Bivens actions” for money damages

against federal officers who violate the due process clause of

"In its order granting summary judgment, the district court noted that

{t]he record as it currently stands is insufficient for any determination as

to whether defendants are ‘federal actors’ against whom liability can be

imposed under Bivens. Nor, for the purposes of defendants [sic] motion to

dismiss constitutional claims, shall the court assume that the defendants

are federal actors.”’ Of course, a determination that Rockwell and Westing-

house were not federal officers acting under color of their federal authority

would be an independent bar to the maintenance of a Bivens action against

them. See Bivens, 403 U.S. at 389 (creating cause of action against federal

agent acting under color of his authority). Nevertheless, despite the

absence of a finding on this issue, we conclude that the district court had

jurisdiction because the Brickers’ complaint contains a nonfrivolous alle-

gation that the defendants are federal actors. See Keniston v. Roberts, 717

F.2d 1295, 1298 (9th Cir. 1983) (federal jurisdiction is established if the

complaint claims a right to recover under federal law and the claim is not

“ ‘wholly insubstantial and frivolous’ ”’) (citing Jackson Transit Auth. v.

Local Div. 1285, 457 U.S. 15, 21 0.6 (1982)) (additional citations omit-

ted).

App. 8

the Fifth Amendment, Davis v. Passman, 442 U.S. 228

(1979), and the cruel and unusual punishment clause of the

Eighth Amendment, Carison v. Green, 446 U.S. 14 (1980).

‘In each of these cases, as in Bivens itself, the Court found

that there were no ‘special factors counselling hesitation in

the absence of affirmative action by Congress,’ no explicit

Statutory prohibition against the relief sought, and no exclu-

Sive statutory alternative remedy.” Schweiker v. Chilicky, 487

U.S. 412, 421 (1988) (citations omitted).

More recently, the Court has “responded cautiously to sug-

gestions that Bivens remedies be extended into new contexts.”

Schweiker, 487 U.S. at 421. In Chappell v. Wallace, 462 U.S.

296 (1983), the Court refused to create a Bivens action for

enlisted military personnel who alleged that they had been

injured by the unconstitutional actions of their superior offi-

cers. Similarly, in Bush v. Lucas, 462 U.S. 367 (1983), the

Court unanimously refused to create a Bivens remedy for a

federal employee who alleged that his supervisor had improp-

erly disciplined him for exercising his First Amendment

rights. In reaching this decision, the Court assumed that a

First Amendment violation had occurred and acknowledged

that “existing remedies do not provide complete relief for the

plaintiff.” 462 U.S. at 388. The Court justified its refusal by

explaining that Congress was in a better position to balance

the competing policy concerns of “governmental efficiency

and the rights of employees.” /d. at 389.

In Schweiker v. Chilicky, the Court refused to create a

Bivens remedy for persons who were improperly denied

Social Security disability benefits, allegedly as a result of due

process violations by the federal officials who administered

the program. 487 U.S. at 414. The Supreme Court acknowl-

edged that “exactly as in Bush, Congress has failed to provide

for ‘complete relief’: respondents have not been given a rem-

edy in damages for emotional distress or for other hardships

suffered because of delays in their receipt of Social Security

benefits.’ Jd. at 425. Nevertheless, Schweiker explained that:

App. 9

the concept of “special factors counselling hesitation

in the absence of affirmative action by Congress”

has proved to include an appropriate judicial defer-

ence to indications that congressional inaction has

not been inadvertent. When the design of a Govern-

ment program suggests that Congress has provided

what it considers adequate remedial mechanisms for

constitutional violations that may occur in the course

of its administration, we have not created additional

Bivens remedies.

Schweiker, 487 U.S. at 423; see also Kotarski v. Cooper, 866

F.2d 311, 312 (9th Cir. 1989) (“[s]o long as Congress’ failure

to provide money damages, or other significant relief, has not

been inadvertent, courts should defer to its judgment, because

‘Congress is the body charged with making the inevitable

compromises required in the design of a massive and complex

... program’ ’’) (quoting Schweiker, 487 U.S. at 429).

Ill. DISCUSSION

A. Congressional Inadvertence

The Brickers first argue that Congress’s failure to create

“whistleblower” protection for employees at DOE nuclear

facilities, was inadvertent and that a remedy for money dam-

ages therefore should be judicially created. We disagree.

A statutory remedial scheme for workers who expose

health and safety violations at nuclear facilities was first

enacted in 1978, when Congress added section 210 to the

Energy Reorganization Act of 1974. 42 U.S.C. § 5851 (1988).

Section 210 prohibits discrimination against “whistleblowers”

at commercial nuclear facilities regulated by the Nuclear Reg-

ulatory Commission (“NRC”). Jd. Among the remedies avail-

able to such employees are reinstatement with back pay,

compensatory damages, and attorney’s and expert witness

fees incurred in prosecuting a complaint. 42 U.S.C.

App. 10

§ 5851(b)(2)(B). When the alleged harassment of Edwin

Bricker occurred, however, section 210 did not provide a rem-

edy for employees of DOE-owned, contractor-operated

nuclear facilities, such as Hanford. See Adams v. Dole, 927

F.2d 771, 776-78 (4th Cir.) (section 210°s whistleblower pro-

tections apply only to employees of licensees of the NRC,

section 210 does not apply to employees of contractors oper-

ating nuclear facilities owned by the DOE), cert. denied, 112

S. Ct. 122 (1991).* After examining the legislative history,

Adams held that, in passing section 210, Congress “intended

to exclude employees of DOE contractors.” /d. at 777. Here,

the district court agreed with the Fourth Circuit’s analysis and

ruled that Congress’s failure to extend whistleblower protec-

tion to employees of DOE contractors was deliberate. Accord-

ingly, the district court found that Congress’s decision not to

provide the damages remedy sought by the Brickers consti-

tuted a “special factor counselling hesitation” within the

meaning of Schweiker, 487 U.S. at 423, and precluded the

judicial creation of a Bivens remedy.

The Brickers do not dispute that, prior to October 24, 1992,

section 210 of the Energy Reorganization Act did not apply

to employees at DOE-owned, contractor-operated nuclear

facilities. Instead, they contend that the district court incor-

rectly concluded that Congress deliberately chose not to pro-

vide such a remedy. The Brickers argue that, when Congress

enacted section 210 in 1978, it focused exclusively on

employees at nuclear facilities operated by the NRC and

never even considered whether to extend whistleblower pro-

tection to employees of DOE contractors. Therefore, they

argue that Congress’s failure to provide a damages remedy for

*Effective October 24, 1992, Congress amended 42 U.S.C. § 5851 to

provide whistleblower protection for employees of DOE contractors. See

Energy Policy Act of 1992, Pub. L. No. 102-486, § 2902(a), 106 Stat.

2776, 3123 (1992). These amendments, however, apply only to claims

filed on or after October 24, 1992. Pub. L. No. 102-486, § 2902(i), 106

Stat. at 3125.

App. 11

employees at DOE nuclear facilities was inadvertent and does

not preclude a judicially created Bivens remedy.

We need not attempt to discern Congress’s intent in 1978

when it passed section 210 of the Energy Reorganization Act

because we conclude that Congress’s subsequent decision

regarding remedies for whistleblowers at DOE nuclear facili-

ties undermines the Brickers’ argument. Between 1986 and

1991, numerous bills that would have created whistleblower

protections for employees of contractors operating nuclear

facilities owned by the DOE were introduced in Congress;

none was enacted.‘ It is true that we must be reluctant to draw

conclusions concerning congressional intent from the mere

failure of bills to pass. Cf. Balelo v. Baldrige, 724 F.2d 753,

762-63 (9th Cir.) (where the House of Representatives

approved a bill but the Senate failed to act on it, this court

observed that “the mere failure of [a] bill to be enacted does

not demonstrate congressional disapproval of the ...

program’’), cert. denied, 467 U.S. 1252 (1984). Nevertheless,

the various attempts at legislation may suggest that Con-

gress’s inaction, whatever its reason, was not wholly inadver-

tent. Moreover, in 1992, Congress enacted amendments to the

Energy Reorganization Act of 1974 that provide whistle-

blower protection for employees at DOE nuclear facilities,

including a provision that allows recovery of compensatory

damages — precisely the rerzedy that the Brickers seek in this

action. See Energy Policy Act of 1992, Pub. L. No. 102-486,

§ 2902, 106 Stat. 2776, 3123-25 (1992) (codified at 42

U.S.C.A. § 5851 (West Supp. 1993)).

“See S. 1622, 102d Cong., Ist Sess. (1991); H.R. 3160, 102d Cong., Ist

Sess. (1991); S. 436, 101st Cong., Ist Sess. (1989); H.R. 3368, 101st

Cong., Ist Sess. (1989); S. 1958, 101st Cong., ist Sess. (1989); H.R. 3521,

101st Cong., Ist Sess. (1989); H.R. 3255, 101st Cong., Ist Sess. (1989);

H.R. 1861, 10ist Cong., Ist Sess. (1989); S. 2758, 100th Cong., 2d Sess.

(1988); S. 2095, 100th Cong., 2d Sess. (1988); H.R. 4071, 100th Cong.,

2d Sess. (1988); H.R. 1716, 100th Cong., Ist Sess. (1988); H.R. 5659,

99th Cong., 2d Sess. (1986).

App. 12

Through these amendments, which came too late for the

Brickers, Congress has provided an elaborate and comprehen-

sive remedial scheme. Under these statutes, “lajny employee

who believes that he has been discharged or otherwise dis-

criminated against” because he has engaged in whistleblow-

ing activities has the right to file a complaint with the

Secretary of Labor (“the Secretary”). 42 U.S.C.A. § 5851(b)

(1) (West Supp. 1993). The Secretary must then conduct an

investigation of the complaint; if the results of the investiga-

tion support the complaint, the Secretary may issue an order

granting relief after notice and an opportunity for a public

hearing. 42 U.S.C.A. § §851(b)(2)(A) (West Supp. 1993). The

relief available includes: reinstatement of the complainant to

his or her former position together with compensation (includ-

ing back pay), compensatory damages; and costs and

expenses of bringing the complaint (including attorneys’ and

expert witness fees). 42 US.C.A. § 5851(b)(2)(B) (West

1983). The statute also provides that any person “adversely

affected or aggrieved” by the Secretary's order may obtain

judicial review of the order. 42 U.S.C.A. § 5851(c) (West

1983). Finally, if a person fails to comply with the Secretary's

order, the Secretary may file a civil enforcement action in fed-

eral district court. 42 U.S.C. § 5851(d) (West 1983).

[1] These amendments, however, provide only prospective

relief; they apply to claims filed on or after October 24, 1992,

the date of enactment. Pub. L. No. 102-486, § 2902(i), 106

Stat. at 3125. The fact that the amendments were given only

prospective effect suggests that Congress did not inadver-

tently fail to provide relief to persons, such as the Brickers,

who filed claims before October 24, 1992. Indeed, it is appar-

ent from the legislative history that Congress decided to pro-

vide only prospective relief even though it was aware that

harassment of whistleblowers had occurred in the past at DOE

nuclear facilities, including Hanford. The House Report states

that: |

[the amendments] broaden[ ] the coverage of exist-

ing whistleblower protection provisions to include

... the Department of Energy (“DOE”), a contractor

or subcontractor at a Department of Energy nuclear

facility, or any other employer engaged in any activ-

ity under the Energy Reorganization Act or the

Atomic Energy Act of 1954....

The ability of nuclear industry employees to come

forward to either their employers or to regulators

with safety concerns without fear of harassment or

retaliation is a key component of our system of

assuring adequate protection of public health and

safety from the inherent risks of nuclear power.

Recent accounts of whistleblower harassment at...

DOE nuclear facilities (e.g. Hanford, Oak Ridge,

Rocky Flats) suggest that whistleblower harassment

and retaliation remain all too common in parts of

the nuclear industry. These reforms are intended to

address those remaining pockets of resistance.

H.R. Rep. No. 102-474, 102d Cong., 2d Sess., pt. VIII, at 78-

79 (1992), reprinted in 1992 U.S.C.C.A.N. 1954, 2296-97

(emphasis added).

[2] We cannot create a Bivens remedy if there are

“indications that congressional inaction has not been

inadvertent.” Schweiker, 487 U.S. at 423; see also McCarthy

v. Madigan, 112 S. Ct. 1081, 1090 (1992) (explaining that in

applying the “special factors” analysis in Schweiker and Bush,

“the Court found the Bivens remedy displaced because Con-

gress had legislated an elaborate and comprehensive remedial

scheme’’) (citations omitted). Because we cannot characterize

as inadvertent Congress’s decision not to include within its

remedial scheme persons who filed claims before October 24,

1992, we are precluded from implying a Bivens remedy for

the Brickers’ claims. See Schweiker, 487 U.S. at 423 (“[w]hen

the design of a Government program suggests that Congress

has provided what it considers adequate remedial mechanisms

for constitutional violations that may occur in the course of its

App. 14

administration, we have not created additional Bivens

remedies”); Kotarski, 866 F.2d at 312 (‘[s]o long as Con-

gress’ failure to provide money damages, or other significant

relief, has not been inadvertent, courts should defer to its

judgment”).

B. Alternative Remedies Available to the Brickers

The Brickers next contend that a Bivens remedy should be

judicially created because no comprehensive statutory reme-

dial scheme is available to them; Congress accordingly could

not have concluded that it had provided remedies that it con-

sidered adequate at that time. In particular, the Bickers assert

that the remedies available to Edwin Bricker cannot bar a

Bivens action because they are administrative, rather than stat-

utory, remedies. We disagree.

The district court described the remedies available to

Edwin Bricker as follows. First, the DOE requires that a col-

lective bargaining agreement (“CBA”) at a contractor-

uperated facility should provide “an effective grievance pro-

cedure with arbitration as its final step[.J”’ 48 C.F.R.

§ 970.2201(b)(5)(ii) (1992). The CBA between Westinghouse

and the Hanford Atomic Metal Trades Council contains a

grievance procedure and requires that it be used to resolve

“claims and disputes on all matters subject to collective

bargaining.” The CBA also provides for arbitration of any

unsettled grievances that involve either the interpretation or

application of a provision of the CBA or “{a] disciplinary pen-

alty (including discharge) ... which is alleged to have been

imposed without just cause[.]”

Second, under 42 U.S.C. § 2201(i)(3) (1988), the DOE is

authorized to prescribe regulations and orders “governing the

design, location, and operation of facilities . . . in order to pro-

tect health and to minimize danger to life or property[.]” Pur-

suant to this statutory grant of authority, DOE issued Order

5438.1A, which establishes occupational health and safety

App. 15

standards for GOCO facilities and prohibits discrimination

against an employee who files a complaint or otherwise exer-

cises his or her rights under the order. DOE Order 5438.1A

provides a procedure for investigating claims of discrimina-

tion and states that “if it is found that such discrimination has

occurred, the field organization shall assure that appropriate

measures are taken by the contractor, including rehiring or

reinstatement of the employee, restoration of lost seniority,

and back pay.”

Third, the National Labor Relations Act declares it an

unfair labor practice for an employer to interfere with an

employee’s right to engage in “concerted activities for ...

mutual aid or protection”, 29 U.S.C. § 157, and gives the

National Labor Relations Board (“NLRB’’) broad discretion

to devise remedies for such unfair labor practices, 29 U.S.C.

§§ 158, 160. See, e.g., Zurn Indus., Inc. v. NLRB, 680 F.2d

683, 694 (9th Cir. 1982) (the NLRB “has jurisdiction to inves-

tigate unfair labor practices, which include discharges based

on protected activity such as voicing safety complaints’), cert.

denied, 462 U.S. 1131 (1983). The district court concluded

that “[although] these remedies, either alone or in combina-

tion, do not constitute a comprehensive statutory scheme, they

are in tact a remedial mechanism designed to provide relief in

circumstances that exist in the instant case[.]”

We reject the Brickers’ argument that these remedies are

inadequate to preclude a Bivens action because they were not

Congressionally authorized. First, this argument is inaccurate:

the NLRA is a remedy created by Congress. Moreover, Edwin

Bricker’s remedies under DOE Order 5483.1A were created

by the DOE pursuant to 42 U.S.C. § 2201(i)(3), in which

Congress directed the DOE to create occupational safety and

health regulations for its facilities. Thus, the remedies pro-

vided in DOE Order 5483.1A are authorized by Congress, by

way of its grant of authority to the DOE. Indeed, this court

previously has relied on administratively-created remedies to

bar the creation of a Bivens remedy. Berry v. Hollander, 925

a

App. 16

F.2d 311, 314-15 (9th Cir. 1991) (relying in part on adminis-

trative remedies created by the Veterans Administration's

Department of Medicine and Surgery to bar Bivens action);

accord Heaney v. United States Veterans Admin., 756 F.2d

1215, 1220 (Sth Cir. 1985) (“[w]here a coordinate branch of

the government has provided a government employee with a

procedure under which a constitutional claim arising out of

the employment relationship is cognizable and some measure

of relief may be obtained, a nonstatutory damage action is not

available for discharge, demotion, or other adverse personnel

actions absent clear evidence of an intent by the coordinate

branch not to foreclose the nonstatutory damage remedy’’).

Finally, courts have held that administratively-created reme-

dies can bar the judicial creation of additional remedies, even

in the absence of a comprehensive statutory scheme. See, e.g.,

Dynes v. Army Air Force Exchange Serv., 720 F.2d 1495S,

1498 (11th Cir. 1983) (holding that a comprehensive adminis-

trative remedial scheme established by Army and Air Force

regulations barred creation of a Bivens remedy), Castella v.

Long, 701 F. Supp. 578, 584 (N.D. Tex.) (same; rejecting

plaintiff's argument that Bivens action was barred “only

where the remedial system was Congressionally created”),

aff d mem., 862 F.2d 872 (Sth Cir. 1988), cert. denied, 493

U.S. 936 (1989).

The Brickers rely heavily on the Eighth Circuit’s decision

in Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991), for the

proposition that administratively created remedies cannot pre-

clude a Bivens remedy. In Krueger, the Eighth Circuit held

that an employee of a county office of the Agricultural Stabi-

lization and Conservation Service (““ASCS”), a division of the

United States Department of Agriculture, could maintain a

Bivens action against various federal officials who allegedly

had fired him in retaliation for whistleblowing activities. /d.

at 1051-52, 1057. Krueger, however, is distinguishable from

this case for three reasons. First, as the Eighth Circuit

explained:

App. 17

[t]he statute creating the ASCS does not direct the

Secretary of Agriculture to create a specific adminis-

trative scheme for overseeing the ASCS programs.

Instead, the statute calls for the election of local

county committees, and requires the Secretary to

“make such regulations as are necessary relating to

the selection and exercise of the functions of the

respective committees, and to the administration,

through such committees, of such programs.”

927 F.2d at 1055 (quoting 16 U.S.C. § 590h(b)). Here, in con-

trast, the enabling statute pursuant to which the DOE promul-

gated Order 5483.1A specifically authorizes the DOE to

create occupational health and safety regulations for its facili-

ties. See 42 U.S.C. § 2201(i). The specificity of this statutory

provision distinguishes this case from Krueger.

Second, the only remedy made available to Krueger under

the Secretary of Agriculture’s regulations was “appealing to

the supervisor of those who fired him.” Krueger, 927 F.2d at

1056. Here, in contrast, the remedies available to Bricker

include a grievance procedure with arbitration as its final step,

and the opportunity to file a formal complaint with the DOE,

which it must investigate. Indeed, when Bricker filed his com-

plaint pursuant to DOE Order 5483.1A, the DOE requested

that a Department of Labor investigator examine the com-

plaint. The investigator conducted an investigation and issued

a report analyzing Bricker’s claims. The DOE’s final decision

adopted the report’s recommendations and granted monetary

and other relief to Bricker.

(3] Third, the Eighth Circuit found that Congress’s failure

to provide additional remedies for ASCS employees was inad-

vertent. Krueger, 927 F.2d at 1057 (it “seems plain to us that

Congress never has given a moment’s thought to the question

of what sort of remedies should be available to ASCS county

office employees like Krueger’). Here, as we already have

explained, Congress did not inadvertently fail to provide addi-

App. 18

tional statutory remedies for whistleblowers at DOE nuclear

facilities prior to 1992. Accordingly, we conclude that the

remedies available to Edwin Bricker are sufficient to bar the

judicial creation of a Bivens remedy. Cf. Schweiker, 487 U.S.

at 421-22 (“[t]he absence of statutory relief for a constitu-

tional violation ... does not by any means necessarily imply

that courts should award money damages against the officers

responsible for the violation”).

The Brickers also rely on McCarthy v. Madigan, 1125. C2.

1081 (1992), which was decided after the Brickers’ briefs

were filed. At oral argument, the Brickers asserted that

McCarthy precludes a finding that administratively created

remedial schemes can foreclose the creation of a Bivens

remedy.

In McCarthy, the Court held that prisoners need not exhaust

the Federal Bureau of Prisons’ (Bureau) grievance procedure

before initiating a Bivens action against prison employees.

Although the McCarthy opinion contains some language that

can be read as favorable to the Brickers, we conclude for two

reasons that McCarthy is not inconsistent with our holding

here.

First, the grievance procedure at issue in McCarthy was

qualitatively different from the remedies available to the

Brickers. See 112 S.Ct. at 1085 (“The general grievance regu-

lations do not provide for any kind of hearing or for the grant-

ing of any particular type of relief.”) In contrast, as we

already have noted, the Brickers options included arbitration

(ultimately) under the CBA as well as potential remedies

under DOE Order 5438.1A and the NLRA. Moreover, unlike

the situation in McCarthy where monetary damages were

entirely unavailable to the prisoner, DOE order 5438.1A

expressly allowed recovery of monetary damages, at least

with respect to back pay.

Second, the Court simply was not deciding the issue that

we decide today. The Court was considering the propriety of

App. 19

imposing an exhaustion requirement before institution of an

already recognized Bivens action. The policy considerations

underlying the Court’s exhaustion analysis are inapplicable to

the situation presented in this case. See Id., 112 S.Ct. at 1087-

88. For example, here there is no “doubt as to whether the

[NLRB or DOE were] empowered to grant effective relief,”

id. at 1088. See 42 U.S.C. § 2201(i)(3) (1988); 29 U.S.C.

§§ 158, 160. This case also does not arise in a context where

“the administrative body is shown to be biased or [to have]

otherwise predetermined the issue before it,” id., because the

DOE (at least with respect to GOCO facilities) and the NLRB

are not called upon to evaluate the rights of third-party’s

against their own employees when acting upon claims such as

the Brickers’.

In sum, we conclude that the Court did not, when it decided

the exhaustion issue presented in McCarthy, preclude our

holding here—that the comprehensive administrative reme-

dial mechanisms available to the Brickers, viewed against the

background of congressional inaction that was not inadver-

tent, prevents the creation of a new Bivens remedy.

C. Nondelegation Doctrine

The Brickers’ final argument is that, if the remedies avail-

able to Edwin Bricker are held to preclude a Bivens remedy,

Congress has violated the nondelegation doctrine of Article 1,

§ 1 of the Constitution by granting the executive branch (the

DOE) jurisdiction over their constitutional claims. To support

their argument, the Brickers rely primarily on dicta in

Krueger. See Krueger, 927 F.2d at 1055 (suggesting but not

ruling that “to allow an administratively-created scheme to

foreclose a Bivens action, without some real indication that

Congress intended the administratively-created scheme to

have that result, would require us to hold that the legislative

power to foreclose a Bivens action has been delegated — a

delegation almost certainly in violation of the separation of

powers doctrine.”’). We reject this argument because we find

ms ai

App. 20

that 42 U.S.C. § 2201(i)(3), which grants DOE authority to

create occupational safety and health regulations for its

nuclear facilities, provides sufficiently specific standards to

pass constitutional muster. See Mistretta v. United States, 488

U.S. 361, 372-73 (1989) (Congressional delegation 1S

“constitutionally sufficient if Congress clearly delineates the

general policy, the public agency which is to apply it, and the

boundaries of this delegated authority”) (quotation omitted),

Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 337

n.9 (9th Cir. 1990) (“[w]ith respect to federal agencies, only

very broad, literally standardless grants of legislative power

will offend the Constitution”).

Accordingly, we affirm the district court’s judgment.

AFFIRMED.

App. 21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

EDWIN L. BRICKER and )

CYNTHIA BRICKER, husband )

and wife, ) NO. CY-90-3090-

Plaintiffs, AAM

, | ORDER RE:

, SUMMARY

ROCKWELL HANFORD JUDGMENT,

OPERATIONS, a division of INTER ALIA

ROCKWELL INTERNATIONAL fiated

CORPORATION, WESTINGHOUSE 22

CORPORATION, and ) sep. 17, 1991)

WESTINGHOUSE HANFORD

COMPANY,

Defendants. |

On Thursday, June 13, 1991, the court conducted a hear-

ing on defendants’ motions to dismiss and for summary

judgment. Michael Withey, Schroeter, Goldmark & Bender,

and Thad Guyer, Government Accountability Project,

appeared on behalf of plaintiffs. Stuart Dunwoody, Davis

Wright Tremaine, represented defendant Westinghouse.

David Jurca and Mark Rising, Helsell, Fetterman, Martin,

Todd & Hokanson, represented defendant Rockwell.

I.

Plaintiff Edwin L. Bricker! began employment at the

Hanford Nuclear Facility, Richland, Washington, with

| While the complaint also names Ed Bricker’s wife,

Cynthia, as a defendant, it is entirely void of any averment that

Cynthia Bricker worked at Hanford.

App. 22

Rockwell Hanford in July 1977. He left in August of 1979

to attend college and returned to the employ of Rockwell

Hanford in February of 1983 as a nuclear process opera-

tor. Bricker was employed at Hanford’s Plutonium Fin-

ishing Plant in 1983 and reported numerous alleged

health, safety and environmental conditions which he

believed had the potential of harming the health and

safety of workers and the public. In 1984 Bricker trans-

ferred to the Hanford tank farm area.

As a result of the work Bricker performed, the con-

duct he observed, and conversations he held at Hanford,

Ed Bricker purportedly became concerned about the

operations at Hanford, safety violations and unsafe work

practices, particularly at the Plutonium Finishing Plant,

the tank farm, and the Z-plant. Bricker took steps to voice

his concerns with co-employees, supervisors, agents and

officials of the defendants who were in a position to

respond to and/or correct or address the alleged prob-

lems.

Bricker contends that the defendants’ agents, offi-

cials, and employees denied that there were any safety

problems or unsafe work practices at Hanford, concealed

crucial information about such safety violations and prac-

tices, and discredited him. Bricker further contends that

when he determined it was clear that the defendants were

not responding to his well-founded concerns about the

safety violations and unsafe work practices, he articu-

lated these same concerns to representatives of the

United States Congress, wrote letters to the editors of

newspapers, and contacted and spoke to newspaper and

television reporters.

App. 23

Bricker alleges that in response thereto and in order

to suppress the exercise of his constitutional rights and

tor the specific purpose and deliberate intention of inju-

ring him, the defendants engaged in a concerted and joint

effort and in conspiracy with one another and others to:

(1) Terminate Bricker from employment with the defen-

dants; (2) retaliate against Bricker for the exercise of his

constitutional rights to free speech and association; (3)

conduct an improper campaign of harassment and intim-

idation against the Brickers and their congressional and

press contacts; (4) implement a program to gather infor-

mation on Bricker and his congressional and press con-

tacts, including spying, surveillance, and unreasonable

searches and seizures of conversations and physical

effects; (5) use friends and associates of Bricker as inform-

ants and stool pigeons to attempt to gather derogatory

information about Bricker for defendants’ improper and

wrongful purposes; (6) conduct a secret and public cam-

paign in an attempt to smear and discredit Bricker and

cause him to lose credibility; (7) compel Bricker to go to

psychologists for psychiatric evaluation and treatment in

order to further discredit and humiliate him: (8) inten-

tionally inflict emotional distress on Bricker; and (9)

deprive Bricker of due process of law by rejecting his

complaints, punishing him for bringing complaints, and

requiring him to engage in fruitless procedures to voice

his grievances, all for the purpose of and intent to further

injure, discredit, and harass him.

Il.

Framed as a motion to dismiss for failure to state a

claim under Fed.R.Civ.P. 12(b)(6), resolution of the

App. 24

Motion to Dismiss Constitutional Claims requires refer-

ence to material outside the pleadings. Accordingly, as

allowed by Rule 12(b), the court shall treat the motion to

dismiss as one seeking summary judgment. The court’s

decision to do so is made easier by the fact that the

parties have submitted a vast amount of material in sup-

port of separately filed motions for summary judgment

that were heard in conjunction with the motion to dis-

miss.

Il.

While the Bricker’ complaint sets forth a multitude of

legal claims, they can readily be placed into two specific

categories; (1) federal Bivens claims and (2) pendent state

law claims. Plaintiffs’ constitutional claims are predicated

upon First Amendment rights to free speech and associa-

tion, Feurth Amendment right to be free from unreason-

able searches and seizures, and (while not specifically

articulated) apparently Fifth Amendment due process

and privacy rights.

Defendants Westinghouse and Rockwell have con-

ducted operations and provided services at the Hanford

Nuclear Facility under contract with the United States.

Hanford is commonly referred to as a government-

owned, contractor-operated (GOCO) facility. Plaintiffs

claim the defendants were delegated functions by the

United States which were traditionally reserved for gov-

ernmental agencies. Plaintiffs conclude that the relation-

ships and links between the defendants and the United

States were such as to make the defendants federal actors

and thus, subject to a Bivens action for violations of

App. 25

constitutional rights. While the defendants have not

raised the issue of their “private party” status by way of

this set of motions, they do not concede that they are

federal actors for purposes of fashioning a Bivens remedy.

The record as it currently stands is insufficient for

any determination as to whether defendants are “federal

actors” against whom liability can be imposed under

Bivens. Nor, for purposes of defendants motion to dismiss

constitutional claims, shall the court assume that the

defendants are federal actors.

In Bivens v. Six Unknown Federal Narcotics Agents, 403

U.S. 388, 389 (1971), the Supreme Court established that

the victims of a constitutional violation by a federal agent

have a right to recover damages from the agent in federal

court despite the absence of any statute conferring such a

right. The Bivens ruling was based, in part, upon the

Court’s finding no special factors counselling hesitation

in the absence of affirmative action by Congress and no

explicit congressional declaration that money damages

may not be awarded, but must instead be remitted to

another remedy equally effective in the view of Congress.

Bivens, 403 U.S. at 396-97. The Court also recognized that

it was not dealing with a question of federal fiscal policy,

which in specified instances should prevent creation of a

Bivens remedy. Id. at 396.

The basis for Bivens subject matter jurisdiction is 28

U.S.C. 1331 which gives this court “original jurisdiction

of all civil actions arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. 1331; See Bush v.

Lucas, 462 U.S. 367, 374 (1983). Bivens actions lie only for

violations of rights secured by the Constitution. Bivens,

App. 26

403 U.S. at 396-97. In this vein, the court notes that the

Supreme Court has specifically allowed Bivens actions for

violations of the Fourth Amendment, Bivens, 403 U.S. at

397, the Fifth Amendment, Davis v. Passman, 442 U.S. 228,

248-49 (1979), and the Eighth Amendment, Carlson v.

Green, 446 U.S. 14, 19 (1980).

Defendants move to dismiss plaintiffs’ constitutional

claims contending a Bivens remedy is barred by a con-

gressionally created alternative remedial scheme and the

concept of “special factors counselling hesitation” first

articulated in Bivens and later significantly expanded in

Bush v. Lucas, 462 U.S. 367 (1983) and Schweiker v. Chilicky,

487 U.S. 412 (1988). The plaintiff in Bush v. Lucas was a

federal employee who had publicly criticized his employ-

ing agency and was subsequently demoted. He alleged

his First Amendment rights were violated by the demo-

tion. Through administrative channels he won retroactive

restoration of his position and $30,000 in backpay but still

attempted to maintain a Bivens action against his super-

visors. The Bush Court, for purposes of its decision,

assumed that Bush’s First Amendment rights were vio-

lated and that the civil service remedies available to him

were less effective than a damages remedy, found that

because Bush’s claims arose “out of an employment rela-

tionship that is governed by comprehensive procedural

and substantive provisions giving meaningful remedies

against the United States” it was inappropriate to supple-

ment the new regulatory scheme with a judicially created

remedy like Bivens. Bush v. Lucas, 462 U.S. at 368. The

Court stressed that the case involved policy questions in

an area that had received careful attention from Congress.

Id. at 380-88.

App. 27

The Bush rationale was taken several steps further in

Schweiker v. Chilicky, 487 U.S. 412, which held that even an

incomplete statutory remedy rendered a Bivens cause of

action unavailable. While recognizing that the congres-

sionally created remedy for wrongful termination of

Social Security benefits failed to provide complete relief

because it did not allow for money damages to compen-

sate independently for constitutional violations, the

Court nonetheless found such a remedy adequate.

[T]he concept of “special factors counselling

hesitation in the absence of affirmative action by

Congress” has proved to include an appropriate

judicial deference to indications that congres-

sional inaction has not been inadvertent. When

the design of a government program suggests

that Congress has provided what it considers

adequate remedial mechanisms for constitu-

tional violations that occur in the course of its

administration, we have not created Bivens

remedies. (emphasis added)

Chilicky, 487 U.S. at 423. The Court specifically recognized

that the “absence of statutory relief for a constitutional

violation ... does not by any means necessarily imply

that courts should award money damages against the

federal [official] responsible for the [constitutional] viola-

tion.” Id. at 421-22.

The Ninth Circuit has applied the Chilicky expansion

in a number of cases and held that where Congress has

provided some mechanism for relief, Bivens claims are

precluded. Berry v. Hollander, 925 F.2d 311 (9th Cir. 1991)

(combination of remedies under Civil Service Reform Act,

5 U.S.C. § 1206-08, Federal Employees Compensation Act,

App. 28

5 U.S.C. § 8101, and statute governing Veterans Adminis-

tration disciplinary proceedings, 38 U.S.C. § 4110, is ade-

quate to preclude Bivens remedy for VA physician who

claimed denial of First and Fifth Amendment rights in

connection with harassment and retaliation for his report-

ing incidents of possible surgical malpractice). Saul v.

United States, 928 F.2d 829 (9th Cir. 1991) (Social Security

claims representative who brought a Bivens action against

supervisors for opening his personal mail barred from

doing so because Civil Service Reform Act provided ade-

quate remedy). Karamanos v. Egger, 882 F.2d 447 (9th Cir.

1989), Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989) (Civil

Service Reform Act precludes Bivens remedy).

Westinghouse and Rockwell move to dismiss all con-

stitutional claims lodged against them on the grounds

that a Bivens remedy cannot be fashioned in light of the

existing remedies available to plaintiff by way of: (1) the

grievance procedure under the collective bargaining

agreement; (2) the remedial process set forth in DOE

Order 5483.1A; and (3) an unfair labor practice claim

under 29 U.S.C. §§ 157 and 158. In addition, the defen-

dants argue that any congressional inaction was not inad-

vertent. Finally, defendants contend that federal fiscal

policy prohibits creation of a Bivens remedy in this case.

The Department of Energy (hereafter DOE) requires

that collective bargaining agreements at its government-

owned contractor-operated (GOCO) facilities contain “an

effective grievance procedure with arbitration as its final

step... .” 48 C.FR. § 970.2201(b)(5)(1i). Defendants argue

that the collective bargaining agreement between West-

inghouse and the Hanford Atomic Metal Trades Council

contains a grievance procedure and requires that it be

a

used to resolve “claims and disputes on all matters sub-

ject to collective bargaining” irrespective of whether they

require interpretation of the contract (Ct. Rec. 30, Turn-

bow declaration, Ex. C, Art. XVIII, ¥ 6). The coilective

bargaining agreement further provides for arbitration of

any unsettled grievance that involve either “{t]he inter-

pretation or application of a provision of this agreement”

or “[a] disciplinary penalty (including dis-

charge) . . . which is alleged to have been imposed with-

out just cause. ...” (Ct. Rec. 30, Turnbow declaration, Ex.

C, Art. XIX, ¥ 1). Defendants argue that any claim that

the safety provisions of the collective bargaining agree-

ment were violated or that an employee has suffered

retaliation for raising a safety concern should be raised in

the grievance procedure.

Defendants next claim that 42 U.S.C. § 2201(i)? gives

the Department of Energy the authority to protect health

and to minimize danger to life or property. It is pursuant

to this statute that DOE promulgated Order 5483.1A

(attached as exhibit A to the Dutton declaration) which

prescribes occupational health and safety standards for

government-owned, contractor-operated (GOCO) facili-

ties. It specifically forbids discrimination against an

employee who files an OSHA complaint or otherwise

* “In the performance of its functions the [Atomic Energy]

Commission is authorized to —

(i) prescribe such regulations or orders as it may deem

necessary .. . (3) to govern any activity authorized pursuant to

this chapter, including standards and restrictions governing the

design, location, and operation of facilities used in the conduct

of such activity, in order to protect health and to minimize

danger to life or property.”

App. 30

exercises his or her rights under the law. It is upon the

remedial process set forth in DOE Order 5483.1A which

defendants contend precludes this court from fashioning

a Bivens remedy for plaintiffs’ claims.

Plaintiffs’ response to both arguments is twofold.

Their first attack on the administrative remedies is

directed at which they perceive as an absence of a high

level of direct congressional involvement in the develop-

ment of either the grievance procedure or DOE Order

5483.1A. They contend that because the grievance pro-

cedure is based solely on regulations created through the

unilateral sua sponte decision of the Secretary of the

3 Chapter III of Order 5483.1A provides in relevant part:

“No contractor shall discharge or in any manner demote,

reduce in pay, coerce, restrain, threaten, or take any other nega-

tive actions against any contractor employee as a result of the

employee’s filing of a complaint, or in any other fashion, exer-

cising on behalf of himself or herself or others any right set forth

in this Order.

Any employee who believes he or she has been discharged

or in any other manner discriminated against, in violation of

this Order, may file a complaint with the cognizant CO OR CO

representative within 30 days after the alleged discrimination,

setting forth the nature of the alleged discrimination. The CO or

CO representative, the safety and health director, and other

appropriate elements of the field organization shall investigate

the complaint, and if it is found that such discrimination has

occurred, the field organization shall assure that appropriate

measures are taken by the contractor, including rehiring or

reinstatement of the employee, restoration of lost seniority, and

back pay. The field organization shall report the disposition of

the matter to the contractor employee filing the complaint of

alleged discrimination within 30 days after receipt of the com-

plaint.”

App. 31

Department of Energy, not by clearly announced congres-

sional mandate, it cannot be the basis for denial of a

Bivens remedy. Plaintiffs second attack proceeds directly

to the adequacy of the remedies. Simply, that neither the

grievance procedure nor DOE Order 5483.1A is a compre-

hensive scheme contemplated as a remedial mechanism

for constitutional violations.

The previously quoted portion of Chilicky defines the

concept of “special factors” to include “appropriate judi-

cial deference to indications that congressional inaction

has not been inadvertent.” Chilicky also recognizes that a

Bivens remedy should not be created when the design of a

government program suggests that congress has pro-

vided what it considers adequate remedial mechanisms

for constitutional violations. Plaintiffs concede the former

in their reply by suggesting that in order for a Bivens

remedy to stand the court must determine whether the

failure by Congress of money damages, or other signifi-

cant relief, was inadvertent. It is upon Congress’s per-

ceived inadvertence which plaintiffs’ claims hinge.

The Energy Reorganization Act of 1974 created the

Energy Research and Development Administration (sub-

sequently the Department of Energy) and the Nuclear

Regulatory Commission. The Act was divided into four

separate titles, now subchapters. Subchapter I establishes

the Energy Research and Development Administration

(now DOE) and defines its responsibilities. Subchapter II

establishes the Nuclear Regulatory Commission and

defines its responsibilities. Subchapter III sets forth mis-

cellaneous and transitional provisions. Subchapter IV is a

specific prohibition of sex discrimination under the entire

Energy Reorganization Act of 1974. At its inception, the

App. 32

Energy Reorganization Act of 1974 did not contain speci-

fic “whistleblower” protection provisions.

In 1978 section 210 of Pub.L. 93-438 amended sub-

chapter II of the Energy Reorganization Act of 1974 to

include a specific whistleblower protection provision.

The Fourth Circuit has previously recognized what this

court now recognizes, that “it appears that Congress was

deliberate in assigning all provisions relating to the

Nuclear Regulatory Commission to” subchapter II. Adams

v. Dole, 927 F.2d 771, 776 (4th Cir. 1991). That deliberate-

ness appears to have continued with the whistleblower

amendment to subchapter II. As evidence in support of

the separateness of subchapters I and II of the Energy

Reorganization Act of 1974, the Fourth Circuit in Adams v.

Dole acknowledged that the explicit prohibition against

sex discrimination is contained in subchapter IV and is

applicable to both the DOE and the NRC. Id. The inesca-

pable conclusion (one that the Adams court reached) - if

Congress wanted to make the whistleblower provision

applicable to both the DOE and the NRC, it would have

amended subchapter IV, not subchapter II. Id. Moreover,

as Adams v. Dole also notes, at the time section II was

amended, the DOE already had in effect its own internal

provisions protecting whistleblowing activities — the pre-

decessor provisions of DOE Order 5483.1A. Id.

In recent years, members of Congress have intro-

duced legislation which sought to apply the whistleblow-

ing provisions of 42 U.S.C. § 5851 and OSHA (29 U.S.C.

§ 651 et seq.) to the DOE. All have failed. |

App. 33

On October 8, 1986 in material in extension of

remarks in the House of Representatives, the Honorable

Thomas A. Luken of Ohio stated:

“Mr. Speaker, today I am introducing legislation

[Nuclear Whistleblower’s Protection Act

Amendments of 1986] that will close a loophole

in our laws that leaves many employees without

protection if they blow the whistle against prac-

tices at nuclear facilities that endanger either the

public or their coworkers. These employees are

found at facilities that are owned by the Depart-

ment of Energy and operated by private contrac-

tors.”

132 Cong.Rec. E3479-02 (October 7, 1986) (statement of

Rep. Luken). The amendments did not pass.

On March 2, 1988 the Honorable Jim Slattery of Kan-

sas introduced H.R. 4071 entitled the Nuclear Whis-

tleblowers Protection Act Amendments of 1988. 134

Cong. Rec. H630-02 (March 2, 1988) (Statement of Rep.

Slattery). The amendments sought to extend the whis-

tleblower protections of section 210 of the Energy Reor-

ganization Act of 1974 (42 U.S.C. § 5851) to the employees

of contractor-operated Department of Energy nuclear

facilities. 135 Cong.Rec. E794-02 (March 23, 1988). The

amendments, however, failed.

In the Nuclear Facilities Occupational Safety

Improvement Act of 1989, H.R. 3521, Congress sought to

extend the provisions of the Occupational Safety and

Health Act (OSHA) to Department of Energy nuclear

facilities. The act failed.

In 1990 Congress sought to enact the Employee

Health and Safety Whistleblower Protection Act, S.436.

imamate

App. 34

Senate Report 101-349 (June 28, 1990) recites one of the

primary purposes of the bill.

Finally, one particular gap in coverage

deserves special mention because its existence is

not apparent from a review of current statutes.

Employees at government-owned, contractor-

operated (GOCO) nuclear weapons facilities

have no statutory protection from retaliation

when they report health or safety violations.

James Simpkin, formerly an employee at the

Hanford, Washington GOCO facility, provided

compelling evidence of this problem. During the

100th Congress, at the request of the House

Energy and Commerce Committee, Mr. Simpkin

testified about safety problems at the Hanford

facility. Upon his return to work after his con-

gressional testimony, the private contractor

operating the Hanford facility began a campaign

of intimidation and harassment that ultimately

forced Mr. Simpkin to leave his job. At a subse-

quent -congressional hearing convened speci-

fically to review the retaliation against Mr.

Simpkin, the Department of Energy, the owner

of the facility, publicly admitted that (1) Mr.

Simpkin was an excellent employee; (2) his

belief that he had been harassed out of his job

by the contractor because of his earlier testi-

mony was reasonable; and (3) the Department of

Energy failed to protect him. See Safety at DOE

Nuclear Weapons Facilities: Hearings before the

Subcommittee on Oversight and Investigations

of the of the House Committee on Energy and

Commerce, 100th Cong. 2nd Sess. 542-45 (1988).

Mr. Simpkin, and other GOCO facility

worker, are caught in limbo. They are not con-

sidered federal employees, so they may not take

App. 35

advantage of the whistleblower protections

under the Civil Service Reform Act. But under

current interpretations of section 210 of the

Energy Reorganization Act, which protects pri-

vate sector workers licensed by the Nuclear

Regulatory Commission, GOCO facility workers

are outside the scope of coverage. See, e.g.,

Wensil v. B.F. Shaw Co., 86-ERA-15 (Secretary of

Labor, March 29, 1990); 4(b)(1) Report at 12.

Therefore, Mr. Simpkin had no federal statutory

remedy. His only option was to rely on the very

weak administrative system established within

the Department of Energy — a system that failed

him miserably. [footnote omitted]

The bill failed.

Congressional inaction that is inadvertent? Hardly.

The congressional record is clear that Congress is and has

been aware of the situation regarding “whistleblowers” at

GOCO facilities, but has failed to enact a comprehensive

statutory remedial scheme. It is difficult to imagine a

stronger case of what this court shall term “deliberate

inaction.” Chilicky’s pronouncement is similarly clear -

this court must afford appropriate judicial deference to

indications that congressional inaction has not been

inadvertent. Accordingly, the court cannot create a Bivens

remedy under these circumstances.

he court also finds that there is a “special factor”

which, coupled with Congress’s deliberate inaction, fur-

ther supports the decision not to create a Bivens remedy.

App. 36

This special factor is the existing remedial scheme previ-

ously described.4 While the court recognizes that these

remedies, either alone or in combination, do not consti-

tute a comprehensive statutory scheme, they are in fact a

remedial mechanism designed to provide relief in circum-

stances that exist in the instant case as evidenced by the

United States Department of Labor, Occupational Safety

& Health Administration, Final Investigation Report. The

report is based on a written complaint filed by Ed Bricker

pursuant to DOE Order 5483.1A and finds that Bricker

4 (1) The grievance procedure under the collective bar-

gaining agreement, (2) the remedial process set forth in DOE

Order 5483.1A, and (3) an unfair labor practice claim under 29

U.S.C. §§ 157 and 158. The NLRA declares it an unfair labor

practice for an employer to interfere with employee rights pro-

tected under the NLRA, which include the right to engage in

“concerted activities for... mutual aid or protection,” 29 U.S.C.

§ 157, and gives the National Labor Relations Board broad

discretion to formulate remedies for such unfair labor practices.

29 U.S.C. § 158, 160. Defendants argue that Bricker’s complaints

regarding safety and health are protected concerted activity,

making any retaliation by WHC against Bricker for making the

complaints an unfair labor practice. The National Labor Rela-

tions Board has jurisdiction to investigate unfair labor practices,

including discharges based upon protected activity such as

safety complaints. Zurn Industries Inc. v. NLRB, 680 F.2d 683, 694

(9th Cir. 1982), cert. denied, 462 U.S. 1131 (1983).

Plaintiffs initially respond by stating that an unfair labor

practice remedy does not extend to constitutional violations by

federal actors acting under color of federal authority. Their

characterization of the claim, however, is not dispositive of the

issue. The issue is whether Congress has provided what it con-

siders adequate remedial mechanisms for constitutional viola-

tions. Without citing to any authority, plaintiffs argue that Ed

Bricker does not have a claim for relief under the National Labor

Relations Act.

App. 37

was discriminated against for raising safety and health

concerns. More importantly, the report recommends that

(1) Bricker’s files be expunged of all negative references

regarding his protected activity, (2) Bricker be awarded

back pay and out-of-pocket expenses, and (3) the appro-

priate notice be posted at his work location advising

other employees of the action taken.

IV.

In light of the foregoing, IT Is HEREBY ORDERED

that defendants’ Motion to Dismiss Constitutional Claims

be GRANTED. The complaint and claims contained

therein as they relate to plaintiffs’ Bivens claims are DIS-

MISSED WITH PREJUDICE.

i

IT IS FURTHER ORDERED, there being no indepen-

dent basis for subject matter jurisdiction, plaintiffs’ pen-

dent state law claims are DISMISSED WITHOUT

PREJUDICE. United Mine Workers v. Gibbs, 383 U.S. 715,

726 (1966); Jones v. Community Redevelopment Agency, 733

F.2d 646, 651 (9th Cir. 1984).

VI.

IT IS FINALLY ORDERED that all motions here-

tofore not ruled upon are DENIED AS MOOT.

IT IS SO ORDERED. The Clerk shall enter this

Order and forward copies to counsel.

App. 38

DATED this 17 day of September, 1991.

/s/ Alan A. McDonald

ALAN A. McDONALD

United States District Judge