Opposition Brief — Bricker v. Rockwell Hanford Operations

a

Bupreme Court, U.S.

reLEn

No. 94-120 SEP 12 1994

OFFICE OF THE @LERK

In The —

Supreme Court of the United States

October Term, 1994

’

EDWIN L. BRICKER and CYNTHIA BRICKER,

Petitioners,

ROCKWELL HANFORD OPERATIONS, a Division

of ROCKWELL INTERNATIONAL CORPORATION;

WESTINGHOUSE ELECTRIC CORPORATION; and

WESTINGHOUSE HANFORD COMPANY,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

«

BRIEF IN OPPOSITION

+

Stuart R. DuNwoopy* Davip F. Jurca*

WILLIAM R. Sguires III Mark F. RIsiInc

Davis WRIGHT TREMAINE Hesett, FETTERMAN, MarrIN,

2600 Century Square Topp & HoKANson

1501 Fourth Avenue P.O. Box 21846

Seattle, WA 98101-1688 Seattle, WA 98111

(206) 622-3150 (206) 292-1144

*Counsel of Record *Counsel of Record

Attorneys for Respondent Attorneys for Respondent

Westinghouse Hanford Rockwell International

Company Corporation

Of Counsel:

Rosert A. Dutton

Assistant General Counsel

Westinghouse Hanford Co.

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether “special factors” exist and bar a former

employee of government contractors at a Department of

Energy facility from maintaining a Bivens action against

his former employers where

(i) Congress’ enactment of some remedies and its

repeated consideration and rejection of proposed legisla-

tion to create additional remedies shows that its failure to

create the exact remedy that the former employee seeks

has not been inadvertent, and

(ii) the former employee had available to him and

made use of alternative remedies for redressing the

wrong he alleges.

PARTIES TO THE PROCEEDING

The parties in the court of appeals were Edwin L.

Bricker and Cynthia Bricker, plaintiffs/appellants, and

Rockwell Hanford Operations, an unincorporated divi-

sion of Rockwell International Corporation, and Westing-

house Hanford Company, defendants/appellees.

Although Westinghouse Electric Corporation appears in

the caption of the case, it was dismissed from the action

by stipulation of the parties in the district court.

RULE 29.1 LISTING

Rockwell International Corporation has no parent

companies or subsidiaries (except wholly-owned subsid-

iaries). Westinghouse Electric Corporation is the parent

company of Westinghouse Hanford Company. Westing-

house Hanford Company has no other parent companies

and no subsidiaries.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

PARTIES TO THE PROCEEDING .................. ii

EE li

pee) iii

TABLE OF AUTHORITIES......................... iv

CITATIONS OF OPINIONS BELOW........... 1

parasmeeeiys OF THE CASE....................... l

REASONS FOR DENYING THE WRIT............. 5

I. The Issue Petitioners Present Is Not Suffi-

ciently Important to Justify Review by This

ES 8 PO ag ee en er 5

Il. The Decision of the Court of Appeals Is Correct

and Is Consistent With Other Authority........ 6

A. Congress’ Failure to Provide the Precise

Remedy That Petitioners Seek Was Not

oe la a 7

B. The Alternative Remedies Available to

Petitioners Also Bar Their Bivens Claim.. 9

BO 10

TABLE OF AUTHORITIES

Page

CASES

Adams v. Dole, 927 F.2d 771 (4th Cir.), cert. denied,

eS 2: | nn 7

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 + 4 | ee passim

Bob Jones University v. United States, 461 U.S. 574

WROD <5 e AN WC RN OK MERE Rta Eee ee 9

Bush v. Lucas, 462 U.S. 367 1 Meee ES etaathge Sr 6,7

Ellis v. United States Postal Service, 784 F.2d 835

SR ME, RO oxo i sa Wed onc Ak 9

Gaj v. United States Postal Service, 800 F.2d 64 (3d

ee Wehr rhe ueeiy ae leet Laue 10

Krueger v. Lyng, 927 F.2d 1050 (8th Cir. ct | 10

Lekvold v. Westinghouse Hanford Co., 26 F.3d 131

(9th Cir. 1994), petition for cert. filed, No. 94-310

(U.S. BF BOD oid oo hc oho Se ole vn kc. 6

McCarthy v. Madigan, 112 S. Ct. 1081 Se 10

McCollum v. Bolger, 794 F.2d 602 (11th Cir. 1986),

cert. denied, 479 U.S. 1034 fy Pa Mies Dik ea ae y

Pension Benefit Guaranty Corp. v. LTV Corp., 496

PD GIS CUDIG) ono cece nn wcceen cesses. ce. 8

Pereira v. United States Postal Service, 964 F.2d 873

Pe a PN coh eg i og es PO ecu 9

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Defense Authorization Act for Fiscal Year 1991, 10

FE Pr ran ee AR ae MN ih CAD ts 8

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

§ 2902(a), 106 Stat. 2776, 3123 (1992)............... 6

Energy Reorganization Act, Section 210, 42 U.S.C.

§ ___, SRNR Tee Ire MCN iia BAK oe

MIscELLANEOUS

H.R. 2579, 101st Cong., 1st Sess...................... 8

H.R. 3255, 101st ee 8 eae eee 8

5. 436, 101st Cong., Ist Sess. (1989).................. 8

Lexis Bill Tracking Reports 1989 H.R. 2579 and

See Ses GU 4 ecole kceeee ee 8

No. 94-120

¢

In The

Supreme Court of the United States

October Term, 1994

— +

EDWIN L. BRICKER and CYNTHIA BRICKER,

Petitioners,

ROCKWELL HANFORD OPERATIONS, a Division

of ROCKWELL INTERNATIONAL CORPORATION;

WESTINGHOUSE ELECTRIC CORPORATION; and

WESTINGHOUSE HANFORD COMPANY,

Respondents.

o—

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

.

BRIEF IN OPPOSITION

¢

CITATIONS OF OPINIONS BELOW

The opinion of the court of appeals is reported at 22

F.3d 871. The opinion of the district court is reported at

1991 WL 268026.

STATEMENT OF THE CASE

This case arises out of the employment of petitioner

Edwin Bricker at the Hanford Nuclear Reservation in

Southeastern Washington, an installation owned by the

United States and managed by the United States Depart-

ment of Energy. Respondent Rockwell International Cor-

poration operated portions of the Hanford Reservation

under contract with DOE from July 1977 through June 28,

1987, and employed Mr. Bricker there for much of that

time. Rockwell left the Hanford Reservation as of June 29,

1987, when respondent Westinghouse Hanford Company

became DOE’s consolidated management contractor at

the site. At the same time Westinghouse became Mr.

Bricker’s employer. Westinghouse continued to employ

Mr. Bricker until November 1, 1991, when he voluntarily

resigned his position.

Petitioners contend that, starting in the early 1980s,

Mr. Bricker became concerned about safety violations and

unsafe work practices at the Hanford Reservation and

raised these concerns to his supervisors, to managers at

Rockwell and then Westinghouse, to members of Con-

gress, and to the news media. Petitioners claim that first

Rockwell and then Westinghouse retaliated against Mr.

Bricker as a result of his voicing these concerns.!

‘ Neither of the courts below reached the substance of peti-

tioners’ allegations of harassment and retaliation, which

respondents vigorously deny. The factual allegations contained

in the Petition thus remain unproved, and in fact a number of

those allegations are contradicted by Mr. Bricker’s sworn depo-

sition testimony. Respondents will not engage in a point by

point rebuttal of the factual misstatements contained in the

Petition, however, because they have no bearing on the question

of what issues would properly be before the Court if certiorari

were granted. See S. Ct. R. 15.1.

In October 1988, Mr. Bricker submitted an adminis-

trative complaint to the Department of Energy pursuant

to a DOE Order governing occupational health and safety,

in which he claimed that Rockwell and Westinghouse had

harassed him in retaliation for his having engaged in

safety-related activities. At the request of the Department

of Energy, an investigator from the Department of Labor

investigated Bricker’s allegations.

While the investigator found that most of Mr.

Bricker’s allegations were unfounded, he did find that

some discrimination had occurred and recommended as a

remedy that negative references to Mr. Bricker in his

personnel files be expunged, that a disciplinary notice

that Rockwell had issued to Mr. Bricker be rescinded, that

Mr. Bricker be paid $126.54 for the one day of wages that

he lost and $2,885 for his out-of-pocket expenses, and that

an appropriate notice be posted at Mr. Bricker’s place of

employment at the Hanford Reservation. Mr. Bricker (and

respondents) appealed from the investigator’s findings

and conclusions, but all parties subsequently dropped the

appeal. All aspects of the remedy recommended by the

investigator have since been implemented.

Shortly after the Department of Labor investigator

issued his report, petitioners filed this action against

Rockwell and Westinghouse in the United States District

Court for the Western District of Washington, seeking

damages of thirty million dollars and contending that the

alleged harassment of Mr. Bricker both violated peti-

tioners’ rights under the First, Fourth, and Fifth Amend-

ments to the United States Constitution and constituted

common-law torts under the law of Washington.

Petitioners based their constitutional claims on the

authority of Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), which permits,

under certain circumstances, damages suits against fed-

eral officials who violate federal constitutional rights

under color of federal law. Petitioners asserted that Rock-

well and Westinghouse were “federal actors” and were

therefore subject to suit under Bivens. Rockwell and West-

inghouse deny that they are federal actors, and neither

the district court nor the court of appeals has decided the

issue. See Appendix to Petition (“Pet. App.”) at App. 7

n.2, App. 25.

The case was transferred, with the consent of the

parties, to the United States District Court for the Eastern

District of Washington which, without reaching the sub-

stance of petitioners’ allegations, dismissed the constitu-

tional claims on the ground that the “special factors

counselling hesitation” recognized by this Court in Bivens

were present and precluded petitioners from maintaining

a Bivens action. The district court dismissed petitioners’

state law claims without prejudice. The court of appeals

affirmed the district court's ruling in all respects, and

unanimously rejected petitioners’ request for rehearing

en banc.

After the district court dismissed their federal action,

petitioners filed suit in the Superior Court of Thurston

County, Washington, realleging the state law claims they

had asserted in the federal action. The Thurston County

Superior Court has since dismissed all of petitioners’

claims against Rockwell and a portion of their claims

against Westinghouse as barred by the statute of limita-

tions. That ruling is currently on appeal to the Washing-

ton Court of Appeals; petitioners’ remaining state law

claims against Westinghouse are still pending in Thurston

County Superior Court.

REASONS FOR DENYING THE WRIT

The Petition should be denied, both because the issue

it presents will not recur in future cases and thus is of

historical interest only, and because the decisions below

were correctly decided and are fully consistent with the

decisions of this Court and of the courts of appeals.

I. The Issue Petitioners Present Is Not Sufficiently

Important to Justify Review by This Court.

A recent statutory amendment ensures that the ques-

tion that petitioners present will not arise in cases that are

filed after October 24, 1992. The issue thus is a narrow

one that does not justify review by this Court on cer-

tiorari.

The question that petitioners present is whether the

“special factors” recognized by this Court in Bivens and

its progeny preclude a plaintiff such as Mr. Bricker, who

claims that he has suffered retaliation for voicing health

or safety concerns about a DOE installation, from main-

taining a damages action directly under the United States

Constitution. A recent amendment to Section 210 of the

Energy Reorganization Act, 42 U.S.C § 5851, providing

remedies for employees of DOE contractors who have

claims for such retaliation arising on or after October 24,

1992,2 constitutes, under this Court’s decisions in Bush v.

Lucas, 462 U.S. 367 (1983), and Schweiker v. Chilicky, 487

U.S. 412 (1988), a “special factor” that would bar any

Bivens actions by DOE contractor employees for claims

arising after that date.

The question that petitioners present, therefore, is

whether special factors existed before Congress amended

Section 210 of the Energy Reorganization Act in October

of 1992. This question will only have bearing on those

claims by employees of DOE contractors that arose before

October 24, 1992 and are not yet barred by the statute of

limitations.* The issue thus is of historical interest only

and will not recur in future cases. It is mot an issue

worthy of this Court’s review on certiorari.

II. The Decision of the Court of Appeals Is Correct

and Is Consistent With Other Authority.

In any event, the decisions below are correct and do

not conflict with any other authority.

* The amendment was made by the Energy Policy Act of

1992, Pub. L. No. 102-486, § 2902(a), 106 Stat. 2776, 3123 (1992),

and applies to claims that are filed on or after the date of its

enactment, October 24, 1992. Id., § 2902(i), 106 Stat. at 3125.

* Counsel for respondents are aware of only one other case

currently pending in which an employee of a DOE contractor

asserts a Bivens claim that arose before October 24, 1992 against

his employer, Lekvold v. Westinghouse Hanford Co., 26 F.3d 131

(9th Cir. 1994) (table), petition for cert. filed, No. 94-310 (U.S. Aug.

17, 1994).

|

Under this Court’s decisions in Bush and Chilicky,

special factors bar a Bivens suit when alternative remedies

exist for the harm that the plaintiff alleges. Special factors

will also bar suit even where no alternative remedy

exists, so long as Congress’ failure to provide the precise

remedy that the plaintiff seeks has not been inadvertent.

Chilicky, 487 U.S. at 423. The courts below correctly held

that Congress’ failure to provide petitioners with the

precise remedy they seek had not been inadvertent, and

that petitioners had alternative remedies.

A. Congress’ Failure to Provide the Precise Rem-

edy That Petitioners Seek Was Not Inadvertent.

Congress’ failure to create a remedy for persons in

Mr. Bricker’s position - employees of DOE contractors

who voice health and safety concerns at DOE installa-

tions - was anything but inadvertent.

This is clear first from Congress’ enactment in 1978 of

Section 210 of the Energy Reorganization Act. As origi-

nally enacted, Section 210 protected only employees of

commercial nuclear facilities from retaliation. 42 U.S.C.

§ 5851 (1988). As the district court recognized, relying on

the decision of the Fourth Circuit in Adams v. Dole, 927

F.2d 771, 776 (4th Cir.), cert. denied, 112 S. Ct. 122 (1991),

Congress deliberately excluded employees of DOE con-

tractors from the protections of Section 210 when it first

enacted the statute. Pet. App. at App. 31 - App. 32. Its

failure to provide those protections to persons such as

Mr. Bricker thus was not inadvertent.

Congress’ lack of inadvertence in providing the rem-

edy petitioners seek for employees of DOE contractors

was repeatedly demonstrated between 1978, when Sec-

tion 210 was first enacted, and 1992, when it was finally

amended to include employees of DOE contractors. Dur-

ing that time Congress repeatedly considered and, until

1992, rejected bills that would create protections for whis-

tleblowers at DOE installations.4 Although none of the

bills was enacted, they received substantial attention

from Congress. Many of the bills had numerous cO-spon-

sors. One bill, S. 436, 101st Cong., 1st Sess. (1989), was

favorably reported to the full Senate in a report noting

the current lack of whistleblower protection for contrac-

tor employees at DOE facilities. See S. Rep. No. 349, 101st

Cong., 2d Sess. 17-18 (1990). Furthermore, Congress con-

sidered these bills at the same time that it was enacting

whistleblower protections for other classes of

employees.> These failed bills thus show that Congress’

failure to enact protections for DOE employees before

October 1992 was not inadvertent.6

* Some (but not all) of these bills are cited in the opinion of

the court of appeals. See Pet. App. at App. 11 n.4.

° For example, a bill to create whistleblower protections for

employees of Department of Defense contractors, H.R. 2579,

101st Cong., Ist Sess., and a bill to create protections for

employees of DOE contractors, H.R. 3255, 101st Cong., 1st Sess.,

were both considered at a joint hearing of a subcommittee of the

House Armed Services Committee. See Lexis Bill Tracking

Reports 1989 H.R. 2579 and 1989 H.R. 3255. Congress enacted

the first bill as part of the Defense Authorization Act for Fiscal

Year 1991, 10 U.S.C. § 2409a, but failed to enact the bill that

would have created similar protections for DOE contractor

employees.

® The courts below did not consider the failed legislation to

construe a previously enacted statute, see Pet. at 12-13 (quoting

Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650

pm

Finally, as the court of appeals recognized, Congress’

lack of inadvertence is shown by the very enactment of

the amendments to Section 210 and by the decision to

give those amendments only prospective effect. Pet. App.

at App. 11 - App. 12.

B. The Alternative Remedies Available to Peti-

tioners Also Bar Their Bivens Claim.

The courts below also correctly held, as an indepen-

dent ground for their decisions, that alternative remedies

were available to petitioners and constitute a special fac-

tor barring them from a judicially-created Bivens action.

Pet. App. at App. 14 - App. 19 and App. 35 - App. 36.

~pecifically, Mr. Bricker availed himself of the remedies

offered by DOE Order 5483.1A, and the court of appeals

properly found that this remedy was congressionally

authorized. Pet. App. at App. 15 - App. 16. In addition, as

the courts below recognized, Mr. Bricker had remedies

under the grievance and arbitration provisions of his

collective bargaining agreement and under the National

Labor Relations Act.” Petitioners’ arguments that the

(1990)). Rather, they properly considered the failed bills to

determine that Congress was aware of the issue and that its

failure to enact the remedy that petitioners seek was not inad-

vertent. See Bob Jones University v. United States, 461 US. 574,

600-601 (1983).

” The courts of appeals recognize that remedies under a

collective bargaining agreement and the NLRA constitute spe-

cial factors that will bar a Bivens claim. See, e.g., Pereira v. United

States Postal Service, 964 F.2d 873 (9th Cir. 1992) (collective bar-

gaining remedy); McCollum v. Bolger, 794 F.2d 602 (11th Cir.

1986) (same), cert. denied, 479 U.S. 1034 (1987); Ellis v. United

10

decisions below conflict with McCarthy v. Madigan, 112 S.

Ct. 1081 (1992), and Krueger v. Lyng, 927 F.2d 1050 (8th .

Cir. 1991), were considered and properly rejected by the }

court of appeals. See Pet. App. at App. 16 - App. 19.

S

CONCLUSION f

The petition for writ of certiorari should be denied.

Respectfully submitted,

Aah ee Sp ane heme es

~

Stuart R. Dunwoopy* Davip F. Jurca*

WituaM R. Sauires III Mark F. Risinc

Davis WRIGHT TREMAINE Hetsett, FetrERMAN, Martin, 3

2600 Century Square Topp & HoKkaNson a

1501 Fourth Avenue P.O. Box 21846 4

Seattle, WA 98101-1688 Seattle, WA 98111 F

(206) 622-3150 (206) 292-1144 a

“Counsel of Record “Counsel of Record E.

Attorneys for Respondent Attorneys for Respondent 4

Westinghouse Hanford Rockwell International a

Company Corporation i 3

Of Counsel: ;

Rosert A. Dutron

Assistant General Counsel

Westinghouse Hanford Co.

September 12, 1994.

States Postal Service, 784 F.2d 835 (7th Cir. 1986) (same); Gaj v.

United States Postal Service, 800 F.2d 64, 68 (3d Cir. 1986) (NLRA

remedy).