Petition for Writ of Certiorari — Lekvold v. Westinghouse Hanford Co.

Suprem

e Court, U.S.

i Fae a 2

Supreme Court of the United States

October Term. 1994

os

LRY L. LEKVOLD,

WESTINGHOUSE HANFORD COMPANY, a Delaware

Corporation; WESTINGHOUSE ELECTRIC

CORPORATION, a Pennsylvania Corporation,

Respondents.

* Sa

Petition For Writ Of Certiorari

fo The United States Court Of Appeals

For The Ninth Circuit.

* ———

PETITION FOR WRIT OF CERTIORARI

* ackiceans

r.M. G & Frienps, P.C.

THAD M. GuYER

Counsel of Record

221 West Main Street, Suite ]

Medtord OR 97501

503) 773-9656

;overnment Accountability

Project

[HOM M. DevInt

THOMAS E. CARPENTER

810 First Street, N.E., Suite 630

Washington, D.C. 20002

202) 408-0034

QXUESTIONS PRESENTED FOR REVIEW

l. ARE A PRIOR HISTORY OF FAILED WHIS-

[LEBLOWER 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 FACILITIES?

[] VRE NON-CONGRESSIONALLY CREATED

\DMINISTRATIVE REMEDIES WHICH ARE NOT PAR]

OF A COMPREHENSIVE REMEDIAL SCHEME SUFFI-

CIENT TO CONSTITUTE A “SPECIAL FACTOR” FOR

NOT ALLOWING A BIVENS REMEDY?

Il. IS THE SEPARATION OF POWERS DOCTRINE

VIOLATED BY ALLOWING A NON-CONGRESSION-

\LLY CREATED ADMINISTRATIVE REMEDY OF AN

EXECUTIVE DEPARTMENT TO PRECLUDE A BIVENS

KEMEDY?

PARTIES TO THE PROCEEDINGS BELOW

The names of all parties to the proceedings, and their

5

parent and subsidiary corporations, appear in the caption

of the case.

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDINGS BELOW......... il

[ABLE OF AUTHORITIES ..................... a ae

REPORTS AND OPINIONS BY OTHER COURTS

AND . SEINCIES....... Ee eat etiw ite cans l

GROUNDS FOR JURISDICTION ................... l

CONSTITUTIONAL, STATUTORY AND REGULA-

TORY PROVISIONS INVOLVED.................

United States Constitution........... Pema ge es l

Energy Reorganization Act of 1974, as amended

cee EE OE a l

Atomic Energy Act of 1954...................... Y

Inspector General Act of 1978 ................... 3

Regulations and Orders of Department of Energy 3

CONCISE STATEMENT OF MATERIAL FACTS..... 5

BASIS OF JURISDICTION IN DISTRICT COURT... 7

ARGUMENT FOR ALLOWANCE OF THE WRIT... 7

Summary of Grounds for Review................ 7

Statutory Construction and Bivens Actions ....... 7

Non-Congressionally Created Administrative

Remedies ...... og ER Se ree aA ;* ae

a 18

ey co ao kone vnc knncded App. 1

TABLE OF AUTHORITIES

Page

CASES

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 US 388 (1971)

Lee IR eo EE Co Pee eee GT Pee EEE TES EELS Cy passim

Bricker v. Rockwell Intern. Corp., 22 F.3d 871 (9th

Eo Hen Sea ewe ulcers Gs awe eee aes ‘Poe | eS ae et

Puen U. Laces, GOl US SOS CES ok cbc s scene nae. 10, 16

Carison v. Green, 446 US 14 (i900)... 2.2... incase: 15

Hawaiian Airlines, Inc. v. Norris, 114 S.Ct. 2239

3 | Ree ee ees ete gra ee a ee ee nr we ee ee 17

Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991)......... 7

McCarty v. Madigan, 112 S. Ct. 1081 (1992)....... 11, 14

Mistretta v. United States, 488 US 361 (1989)......... 17

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

BEE Sees Soe Ob 4 Oo AEP EAS COR Peay aie 12

Schweiker v. Chilicky, 887 US 412 (1988)... 10, 11, 15, 16

U.S. CONSTITUTION:

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STATUTES:

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TABLE OF AUTHORITIES ~ Continued

REGULATIONS AND ORDERS:

[ribe, American Constitutiona] Law (2d Ed. 1988)....17

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REPORTS AND OPINIONS

BY OTHER COURTS AND AGENCIES

[he United States District Court for the Eastern Dis-

trict of Washington entere Nn opinion and order dated

February 25, 1992, which is set forth in the appendix.

—— —@©¢ ————

GROUNDS FOR JURISDICTION

[he judgment sought to be reviewed is the opinion of

the United States Court of Appeals for the Ninth Circuit

dated May 14, 1994. This Court has jurisdiction to review

the opinion by writ of certiorari pursuant to 28 USC

section 1254( l).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

United States Constitution:

\mendment I. Congress shall make no law * * * abr-

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

Government for a redress of grievances.

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

f

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

discriminate against any employee with respect to his

Se eee

No

compensation, terms, conditions, or privileges of emplov-

ment because the employee (or person acting pursuant to

a request of the employee) -

(A) riotified 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

“ersnloyer” includes D) a contractor or sub-

CO ictor of the Department of Energy that is indemni- |

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

Energv Act of 1954 * * *

(h) This section may not be construed to expand

diminish, or otherwise affect any right otherwise avail-

able to an employee uncer Federal or State law to redress |

the employee’s discharge or other discriminatory action

aken ee oyer against the e oyee.

taken by the employer against the employ

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 -

QD

(1) 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;

Inspector General Act of 1978:

5 USCS Appx. section 7(a) provides:

§ 7. Complaints by employees; disclosure of Identity;

reprisals

(a) The Inspector General may receive and investigate com-

plaints or information from an employee of the establish-

ment concerning the possible existence of an activity

constituting a violation of law, rules, or regulations, or mis-

management, gross waste of funds, abuse of authority or a

substantial and specific danger to the public health ard

safety.

Regulations and Orders of Department of Energy:

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 occupationa

dards promulgated under the O

Ith Act of 1970 (OSHA), Publi

cae |

Responsibilities and Authorities

d. (11) KRequire 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

*

Shall investigate the com-

5

CO or CO representative

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

Petitioner Gary Lekvold was employed by respon-

lent Westinghouse Hanford Corporation (hereafter

“WHC’) as a senior security engineer assigned to the

security Application Center of the Safeguards and Secu-

rity Function at the Hanford Nuclear Reservation in

Hanford, Washington. The Reservation is owned by the

United States Department of Energy, and is the site for

production and storage of nuclear materials for defense

and military uses. WHC is the prime contractor for opera-

tion of the programs conducted on the Reservation. Mr.

Lekvold was responsible for various security functions

regarding protection of nuclear materials.

In April 1988, Mr. Lekvold began dissenting from

some of his supervisors’ conclusions regarding the secu-

rity of nuclear materials storage. opecifically, he reported

that WHC was failing “to take the measures reasonably

necessary to protect the public from the consequences of

theft or other unauthorized joss of nuclear materials.”

(Complaint, para. 9). In March 1989, he was removed

from the worksite, although his employment status con

tinued. During the interim period, he suffered harrass-

ment and retaliation by WHC for having communicated

his security concerns to officials of the Department of

Energy and Members of Congress. This retaliation

included unauthorized surveillance him, demanding

he see a psychiatrist, having an unscheduled security

clearance “reinvestigation” done on him, and removing

him from work with armed guards.

Prior to his commencement of this action, Mr. Lek

vold was unaware of and did not pursue any administra

tive remedies within the jurisdiction of any governmental

agency to redress the retaliation. Prior to his removal

from the worksite, he participated in an informal

“employee concerns” program administered by WH(¢

basic corporate grievance procedure designed to resol\

employer-empioyee conflict and dissatisfaction. Mr. Lek

vold was not a member of any labor organization, nor

covered by any collective bargaining agreement.

At the time of his removal from the worksite, WH(¢

confiscated some of Mr. Lekvold’s personal property kept

in his office. Contrary to its written disciplinary policies,

neither before nor after his removal from the worksite did

WHC provide him with any notice or opportunity to be

heard. The stated reasons for Mr. Lekvold’s removal from

the worksite concerned attendance and timecard pro

cedures. After removal from the worksite, Mr. Lekvold’s

security access authorization was suspended, and his

security clearance was later revoked by the Department

of Energy.

Court regarding actions under Bivens v. Six Unknown

BASIS OF JURISDICTION IN DISTRICT COURT

Jurisdiction over Mr. Lekvold’s speech and due pro-

eS onstitutional claims in the U.S. District Court was

yranted by 28 US¢ ection 1331. These are federal ques-

inder the First and Fifth Amendments.

< ESSN

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, which is based on the com-

panion case Bricke1 Rockwell Intern. Corp., 22 F.3d 871

th Cir. 1994), cert. pendine No 94-120, is one upon an

important federal question which has been decided in a

which conflicts with the applicable decisions of this

vent f Fed. Bureau of Narcotics, 403 US 388

171); and regarding more broadly the rules of statutory

onstruction. Secondly, the Ninth Circuit’s decision is in

nflict with one of the Eighth Circuit regarding the

lisallowance of a Bivens action based upon a non-Con-

yressionally created administrative remedy, and regard-

the implications of this upon separation of powers

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

Statutory Construction and Bivens Actions: The

vinth Circuit erred in denying Lekvold a Bivens remedy

the grounds that the 1992 Amendments of the Energy

Keorganization Act evidenced a ( ongressional 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

g., Hanford,

Oak Ridge, Rocky Flats) suggest that whistleblower

harassment at * * * DOE nuclear facilities (e.

harassment and retaliation remain all too common in

parts of the nuclear industry.” (Bricker amended opinion

| There is nothing in the record below whatsoever which

establishes that Lekvold could have addressed any, much less

all, of his claims under the ERA, DOE order, etc., even were they

to apply to him. Whistleblower statutes protect not classes (such

as “DOE contractor employees”), but “activity” defined by

those statutes, i.e., whistleblowing. However, only whistle-

blowing 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” thereunder. For exam-

ple, an NRC (or now DOE) contractor employee who is a secre-

tary 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. Perhaps both of the lower courts found this principle to

apply given that neither court even acknowledged WHC’s argu-

ment that Mr. Lekvold had a remedy under a hazardous waste

statute, 42 USC section 9610, the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (CERCLA).

CERCLA establishes whistleblower jurisdiction for reporting

environmental releases of hazardous material, and WHC argued

that Lekvold’s concerns over theft of radioactive waste could be

cognizable under CERCLA.

at 876). In so amending the ERA, Congress specifically

Dro\ ided:

[his 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.

$2 USC sec. 5851(h), October 24, 1992 (emphasis added).

Despite this provision, the Bricker decision held, in

ua sponte tashion,? that a subsequently enacted statutory

remedy for Lekv 5ld’s class of DOE-contractor employees

evidences past Congressional intent that the class previ

usly had no remedy under Bivens. The panel in the

present case was bound to follow Bricker. Lekvold opinion

at App. 4. If allowed to stand, these decisions 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

Because the Energy Reorganization Act amendments of

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

Bricker, 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.

————————— eee

10

subsequent enactment of a remedy could retroactively evi

dence a Congressional intent that the affected class pre

ously never should have had a Bivens or other remedy

[he panel in this case, following Bricker, did not rule

on the effects of failed ERA amendments preceding the

7

passed subsequent to

r

Bivens action, but upon those which

it. [The Bricker 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. * * *

3

[he 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.

1]

Through these amendments, which came too

late for the Brickers, Congress has provided an

elaborate and comprehensive remedial

scheme. * * *

Bricker at 875 (emphasis added).4

Having provided this legislative context, the Bricker

panel 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:

[hese 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

* 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

—

precluded from implying a Bivens remedy for

the Brickers’ claims.

Bricker at 876.

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

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 Lekvold a Bivens

remedy on the grounds that a combination of administra-

tive remedies and “avenues for processing his concerns”

13

were available to him.> These could not alone or in sum

constitute either an “equally effective alternative rem-

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

court below gave considerable weight to two administra-

tive procedures potentially available to Lekvold, both

vaguely based on sentence-or-two enabling legislation.

(Lekvold opinion at App. 6). The court gave no indication

of how these could be used to address community-wide

environmental concerns, or the types of retaliation

involved here. Both of the lower courts acknowledged

that these sundry administrative and statutory provisions

fall short of what Supreme Court precedents seem to

literally require, but both courts accepted them as enough

to kill a Bivens action anyway:

[he district court concluded that “[although]

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 at 877. See also district court order in Lekvold at

App. 17-18.

[he first “avenue for processing his concerns” (i.e.

alternative remedy) cited by the Ninth Circuit is DOE

order 5438.1A, which by its owns terms is limited to

occupational safety and health concerns. (Lekvold opinion

at App. 6). Additionally, except for the general language

> Lekvold opinion at App. 6, emphasis added. With this

language the Ninth Circuit has discounted even further the

“alternative remedies” special factor. Now, mere “avenues for

processing concerns” are enough to defeat a Bivens remedy.

14

of 42 USC section 2201(i)(3) giving the DOE power to

“protect health and to minimize danger to life or prop-

erty”, this DOE order has been attributed to no Congres-

sional action.

The second “avenue” cited in the Lekvold opinion is

the Inspector General Act of 1978, 5 USCS Appx. section

7. (Lekvold opinion at App. 6). This statute is nothing

more than an authorization to the President to create an

office of inspector general in each of the federal agencies

listed in section 2(1). Beside the fact that neither the

Atomic Energy Commission nor the Department of

Energy are so listed, and that section 7 applies only to

“employees” of the federal government and not contrac-

tor employees, the Act provides no “remedy” at all. Sec-

tion 7 simply allows the inspector general of the agency

to “investigate” any complaints or information provided

as to violations of federal laws and regulations. No reme-

dial provisions are included in the Act. To allow a general

‘

statute such as this to constitute a “special factor” is no

different than according the same status to a citizen’s

right to call the FBI.

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

JI

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 am administrative exhaustion requirement.

[he 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].

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

© 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

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 discounts it as merely “some

language that can be read as favorable to the [peti-

tioner|”. Bricker at 878.

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

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

17

by step, with careful consideration to conflicting

policy considerations”; [id at 388].

Before Mr. Lekvold filed his Bivens action, there had been

no Congressional involvement of any significant magni-

tude, much less any which could be deemed “intense”,

“comprehensive” or even “carefully considered”. Only

after Mr. Lekvold filed his action did Congress adopt the

1992 amendments to the ERA.7

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:

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 been 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

’ In a different, although analagous context, this Court has

recently held that any federal statutory preclusion of a whis-

tleblower’s state law claims must be based on a clear congres-

sional intent. Hawaiian Airlines, Inc. v. Norris, 114 S.Ct. 2239

(1994).

18

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

[he petition for writ of certiorari should be granted,

and the Ninth Circuit decision should be reversed

Respectfully submitted,

THAD M. Gl YER

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY L. LEKVOLD )

so alae aioe

Plaintiff-Appellant, , nee eaeren

. D.C. No.

. , CV 91-3011-FVS

WESTINGHOUSE keene

HANFORD CO. a MEMORANDUM*

Delaware Corporation; (Filed

WESTINGHOUSE | May 19, 1994)

ELECTRIC CORP., a |

Pennsylvania Corporation /

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Washington

Fred Van Sickle, District Judge, Presiding

Argued and Submitted November 2, 1993

Seattle, Washington

Submission withdrawn November 4, 1993

Resubmitted May 17, 1994

Before: WRIGHT, GOODWIN, and HUG, Circuit Judges.

Gary L. Lekvold appeals a summary judgment in

favor of the defense in Lekvold’s damages action alleging

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3.

— rr es

A

App. 2

that the defendants retaliated against him for “whis

tleblowing” activities, in violation of his federal constitu-

tional rights. We affirm.

At all times relevant to this appeal, Lekvold was a

senior security engineer assigned to the Security Applica-

tion Center at the Hanford Nuclear Reservation (“Han-

ford”), located in Hanford, Washington. Hanford is

owned by the United States, but is managed by private

contractors pursuant to a contract with the Department of

Energy (“DOE”). Lekvold was hired to work at Hanford

by Westinghouse Hanford Company, a subsidiary of

Westinghouse Electric Corporation (“Westinghouse”),

which has been the management contractor at Hanford

since June 29, 1987.

Lekvold alleged that he began communicating con-

cerns he had over the security of nuclear materials stor-

age at the Hanford site to Westinghouse management,

DOE officials, and members of Congress beginning in

April 1988. He contends that Westinghouse retaliated

against him as a result of these communications. Lekvold

complained that Westinghouse’s alleged actions violated

his speech and due process rights under the First and

Fourteenth Amendments.

Lekvold bases his constitutional claims on the

Supreme Court’s decision in Bivens v. Six Unknown

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),

which permits, under certain circumstances, damages

\ eye |

INAMe a

App. 3

Suits against federal officials who violate federal constitu-

tional rights under color of federal law.!

[he Supreme Court has allowed “Bivens actions” for

money damages against federal offices who violate the

Due Process Clause of the Fifth Amendment, Davis v.

Passman, 442 U.S. 228 (1979), and the Cruel and Unusual

Punishments Clause of the Eighth Amendment, Carlson 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 affirma-

tive action by Congress,’ no explicit statutory prohibition

against the relief sought, and no exclusive statutory alter-

native remedy.” Schweiker v. Chilicky, 487 U.S. 412, 421

(1988) (citations omitted) (refusing to create Bivens rem-

edy for persons improperly denied Social Security bene-

rits)

Lekvold argues that a Bivens remedy is appropriate

here because Congress has been inadvertent in not creat-

ing a legislative remedy for violation of whistleblowers’

rights at DOE facilities. However, the district court con-

cluded that Congress’ repeated failure to enact proposed

whistleblower legislation providing a remedy for DOE

contractor employees barred a Bivens remedy in this case.

After the district court’s decision, two major develop-

ments occurred in this area of law that are dispositive of

' Lekvold claims that Westinghouse is subject to suit on a

Bivens theory because it is a “federal actor.” Westinghouse

denies that it is a federal actor, but did not seek summary

judgment on this issue. Thus, this issue is not before this court.

App. 4

this appeal. First, Congress amended the Energy Reor-

ganization Act of 1974 (“ERA”) to provide whistleblower

protection for employees at DOE-owned, contractor-oper-

ated nuclear facilities. See Energy Policy Act of 1992, Pub.

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

(codified at 42 U.S.C.A. § 5851 (West Supp. 1991)). How-

ever, the amendments apply prospectively only to claims

filed on or after the effective date of the amendments,

October 24, 1992. Pub. L. No. 102-486, § 2902(i), 106 Stat.

at 3125. Because Lekvold filed his action on January 25,

1991, he cannot take advantage of these amendments to

recover the damages he seeks.

The second major development was the decision by

another panel of this circuit in a related case that pre-

sented similar issues, Bricker v. Rockwell Int'l Corp., No.

91-36153, slip op. (9th Cir. Apr. 15, 1994).? Bricker held

that Congress’ failure to create whistleblower protection

for employees at DOE-owned, contractor-operated

nuclear facilities prior to October 24, 1992 was not inad-

vertent and that a remedy for money damages should not

be judicially created for claims filed before that time. Id.

at 3689, 3693 (emphasis supplied).

The facts of Bricker are very similar to the facts here.

Indeed, the district court in Lekvold’s case relied on the

district court decision in Bricker, No. CY-90-3090 AAM,

1991 WL 268026 (E.D. Wash. Sept. 17, 1991), to dispose of

* Lekvold’s case was withdrawn and resubmitted in order

to await the outcome of a petition for rehearing and rehearing

en banc filed in the Bricker case. The petition for rehearing in

Bricker was denied and the suggestion for rehearing en banc was

rejected on April 15, 1994. See Bricker, slip op. at 3685.

App. 5

this case on summary judgment. We find that Bricker

controls this case.

In Bricker, plaintiff Edwin Bricker was employed at

Hanford Nuclear Reservation, the same nuclear facility in

which Lekvold worked. In his complaint, Bricker named

the two Westinghouse defendants that are also the defen-

dants in Lekvold’s complaint, as well as a third defen-

dant, Rockwell Hanford Corporation, a division of

Rockwell International Corporation, (“Rockwell”).

Bricker, slip op. at 3685.

Bricker’s complaint alleged that while he was

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

and environmental problems at the facility and that he

voiced his concerns about these matters to his super-

visors, Officials of Rockwell and Westinghouse, members

of Congress, and the news media. Id. at 3686. As a result

of these “whistleblowing” activities, Bricker contended

that Rockwell and Westinghouse subjected Bricker to var-

ious forms of harassment, thereby violating his federal

constitutional rights. Id.

Bricker argued, as Lekvold does here, that Congress’

failure to provide a damages remedy for employees at

DOE nuclear facilities was inadvertent and that a judi-

cially created Bivens remedy was justified. Id. However,

we have already rejected these arguments. This court in

Bricker found that Congress, when considering the 1992

ERA amendments, “decided to provide only prospective

relief even though it was aware that harassment of whis-

tleblowers had occurred in the past at DOE nuclear facili-

ties, including Hanford.” Id. at 3692. For this reason, this

court concluded that: “We cannot create a Bivens remedy

ee ee

App. 6

if there are indications that congressional inaction has not

been inadvertent.” Id. at 3693 (citation and internal quota-

tion marks omitted). As the court in Bricker, we must

defer to Congress’ decision not to provide a remedy for

plaintiffs such as Lekvold, whose claims arose prior to

the 1992 amendments to the ERA.

Lekvold attempts to distinguish Bricker on several

grounds. He argues that unlike in his case, Edwin Bricker

had numerous administrative and statutory remedies

available to him to pursue his claims. However, the dis-

trict court in Lekvold’s case found that Lekvold also had

several avenues for processing his concerns open to him,

which he used, albeit unsuccessfully. Among these was

the remedy of DOE Order 5483.1A, which provides safety

and health protection for DOE contractor employees, sim-

ilar to those found in private industry under the Occupa-

tional Safety and Health Act. Another was the Inspector

General Act of 1978, which prohibits retaliation against

employees who bring complaints to the attention of the

Inspector General.

Although Lekvold does not contest that these

remedies exist, he argues they are nonstatutory remedies

that do not satisfy the alternative available remedies as

discussed in Schweiker. However, in Bricker we rejected an

identical argument. Bricker, slip op. at 369-499. Addi-

tionally, we examine whether alternative remedial

schemes exist to determine whether congressional inac-

tion in an area has not been inadvertent. See Schweiker,

487 U.S. 412, 423 (1988). Where, as here, it is clear from

the legislative history that Congress did not inadvertently

fail to provide remedies for whistleblowers at DOE

nuclear facilities prior to 1992, we need not examine

App. 7

Whether such remedial schemes existed to redress an

employee’s claims.

For these reasons, the decision of the district court is

AFFIRMED.

App. 8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

Defendants.

GARY L. LEKVOLD, ) NO.

Plaintiff, ) CY-91-3011-FVS

vs. | ORDER RE:

WESTINGHOUSE HANFORD ) go e

CO., and WESTINGHOUSE ) (|. rw

ELECTRIC CORP., aati

)

(Filed Feb. 25, 1992)

BEFORE THE COURT is Defendants’ Motion to Dismiss

Constitutional Claims for Failure to State a Claim, Ct.

Rec. 13, heard with oral argument on January 17, 1992.

Plaintiff was represented by Thad M. Guyer and Stephen

Sirianni. Stuart Dunwoody and Robert Dutton repre-

sented the Defendants.

Jurisdiction

This Court has jurisdiction over the Plaintiff’s claims

arising under the First and Fifth Amendments of the

Constitution of the United States pursuant to 28 U.S.C.

§ 1331, which provides for federal court jurisdiction for

any questions “arising under the Constitution.” 28 U.S.C.

§ 1331.

Facts

The Plaintiff, Gary Lekvold, is employed by Westing-

house Hanford Company (WHC) as a senior engineer

App. 9

assigned to the Security Applications Center of the Safe-

guards and Security Function of the Hanford Nuclear

Reservation in Hanford, Washington. Part of Gary Lek-

vold’s job was to design and analyze security systems for

the protection of on-site facilities and nuclear materials at

Hanford.

In April 1988, he began dissenting from some of his

supervisors’ conclusions regarding the security of nuclear

materials storage. In March 1989, he was removed from

the work site, but continued on the WHC payroll.

Mr. Lekvold alleges that after dissenting from the

Westinghouse management decisions, his credibility was

attacked and disparaging reports about his mental health

were entered into his personnel file. He also alleges that

although his job required direct interaction with officials

from the Department of Energy (DOE), he was not

allowed to deal with DOE officials without a Westing-

house manager present.

Mr. Lekvold claims that his rights under the First

Amendment of the United States Constitution were vio-

lated when the Defendants limited his free speech regard-

ing criticism of the facilities, and his Fifth Amendment

property rights were violated when the Defendants

removed him from his work site without due process.

Discussion

The Defendants have moved, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, to dis-

miss the Plaintiff’s constitutional claims for failing to

state a claim upon which relief can be granted. When a

App. 10

moving party relies on matters outside of the pleadings

when presenting a Rule 12(b)(6) motion to dismiss for

failure to state a claim, the Court considers the motion as

one for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b){6).

The Defendants having supplemented their motion with

exhibits, the Court will consider Defendants’ Motion to

Dismiss as a Motion for Summary Judgment.

The purpose of a summary judgment, under Rule 56

of the Federal Rules of Civil Procedure, is to avoid unnec-

essary trials when there is no dispute as to the facts

before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th

Cir. 1975)., cert. denied, 423 U.S. 1025. The moving party is

entitled to judgment as a matter of law if, with the

evidence and the inferences viewed in a light most favor-

able to the nonmoving party, there are no genuine issues

of material fact in dispute. Fed. R. Civ. P. 56(c); Semegen v.

Weidner, 780 F.2d 727 (9th Cir. 1986).

Rule 56 specifies that a defending party may move

for summary judgment with or without supporting affi-

davits. Fed. R. Civ. P. 56 (b). A party seeking summary

judgment always bears the initial burden of:

identifying those portions of the pleadings,

depositions, answers to interrogatories, and

admissions on file . . . which it believes demon-

strate the absence of a genuine issue of material

fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

motion shall be granted if “ ... there is no genuine issue

as to any material fact and the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56 (c).

App. 11

In his complaint, Mr. Lekvold alleges that WHC is a

“federal actor” thereby subject to suit for constitutional

violations. The Defendants deny qualifying as federal

actors. Determining whether or not the Defendants are

“federal actors” is not necessary for the purpose of this

motion, and the Court does not address the issue. Plain-

tiff’s other factual allegations are accepted as true for the

purposes of this motion. (Def.’s Mem. Supp. Mot. at 2.)

The issue before the Court is: absent any statutory

cause of action, does the Plaintiff state a claim on which

relief can be granted. If no such statute exists to allow Mr.

Lekvold to recover on his constitutional claims, he must

look to a judicially created cause of action. Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971).

In Bivens, the Plaintiff sought damages from federal

agents for violations of the Plaintiff’s Fourth Amendment

rights. Bivens, 403 U.S. at 390. The Court determined that,

even though no statutory cause of action existed, the

Plaintiff’s “complaint state[d] a cause of action under the

Fourth Amendment .. . [and that Plaintiff] is entitled to

recover money damages for any injuries he has suffered

as a result of the agents’ violation of the Amendment.”

Bivens, 403 U.S. at 397.

The Supreme Court of the United States created a

Bivens type remedy for violation of Eighth Amendment

rights in Carlson v. Green, 446 U.S. 14 (1980). However, the

Court noted that a Bivens cause of acticn can be defeated

in two situations:

The first is when defendants demonstrate “spe-

cial factors counselling hesitation in the absence

App. 12

of affirmative action by Congress.” [Cites omit-

ted.] The second is when defendants show that

Congress has provided an alternative remedy

which it explicitly declared to be a substitute for

recovery directly under the Constitution and

viewed as equally effective.

Carlson v. Green, 446 U.S. 14, 18-19 (1980) (citing Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388, 396 (1971); Davis v. Passman, 442 U.S. 228,

245 (1979)). The Court noted in Carlson that the plaintiff's

complaint could support a suit under the Federal Tort

Claims Act (FTCA), but that there was no indication in

the legislative history of the FTCA that Congress

intended the FTCA “to preempt a Bivens remedy or to

create an equally effective remedy for constitutional vio-

lations.” Carlson v. Green, 446 U.S. at 19. The legislative

“history of amendments to the FTCA indicate that Con-

gress considered FTCA and Bivens to be parallel causes of

action. Id. at 19-20.

Bush v. Lucas, 462 U.S. 367 (1982), is factually similar

to the instant case. The Plaintiff was an engineer

employed at a facility operated by the National Aeronau-

tics and Space Administration. Id. The Plaintiff was

demoted for making public comments highly critical of

the center. Id. at 369. The Plaintiff filed a claim for viola-

tion of his First Amendment rights. Id. at 372.

The Plaintiff’s civil service remedies created by Con-

gress represented “an elaborate remedia! system that has

been constructed step by step, with careful attention to

conflicting policy considerations.” Id. at 388. A Bivens

remedy was not necessary, because the civil service

remedies, although short of providing “complete relief”

App. 13

to the Plaintiff, were available and the product of Con-

gressional action. Id. The relationship between the federal

government and its employees was identified as a “spe-

cial factor counselling hesitation.” Bush. 462 U.S. at 372.

Prior Bivens analysis was analyzed in Bush:

The federal courts’ statutory jurisdiction to

decide federal questions confers adequate

power to award damages to the victim of a

constitutional violation. When Congress pro-

vides an alternative remedy, it may, of course,

indicate its intent, by Statutory language, by

clear legislative history, or perhaps, even by the

statutory remedy itself, that the courts’ power

Should not be exercised. In the absence of such a

congressional directive, the federal courts must

make the kind of remedial determination that is

appropriate for a common-law tribunal, paying

particular heed, however, to any special factors

counselling hesitation before authorizing a new

kind of federal litigation.

Bush, 462 U.S. at 378.

Other cases have identified a variety of “special fac-

tors” that warrant hesitation in the creation of a Bivens

type remedy. The special power of Congress was identi-

fied as the “exclusive arbiter of federal fiscal affairs” as a

reason not to create a judicial remedy for the government

to recover damages against Standard Oil Company in

United States v. Standard Oil Co., 332 US. 301, 314-15

(1947). In Schweiker v. Chilicky, 487 U.S. 412 (1987), the

Court declined to create a Bivens remedy for parties to

recover damages for deprivation of social security bene-

fits, because Congress is in a better position to determine

App. 14

public interest than the judiciary. Schwetker v. Chilicky, 487

U.S. 412, 427 (1987).

An absence of statutory relief for constitutional viola-

tions does not imply that a judicial remedy should be

created. Id. at 421. “[T]he concept of ‘special factors cour

selling hesitation in the absence of affirmative action

Congress’ has proved to include an appropriate judicial

deference to indications that congressional inaction has

not been inadvertent.” id. at 423. Bivens remedies will not

be created when the design of programs indicates that

Congress has already provided what it would deem to be

adequate remedies, whether or not the remedies offer

complete relief. Id.

Plaintiff here argues that a Bivens remedy is appro-

priate because Congress has been inadvertent in not cre-

ating a legislative remedy for violation of whistle-

blowers’ rights at Department of Energy (DOE) facilities.

Plaintiff contends that although such legislation has been

introduced, Congress has not “waded deeply” enough

into consideration of enacting such legislation to avoid

being characterized as “inadvertent” in its failure to enact

any of the remedies.

The Defendants contend that two “special factors

counselling hesitation” exist in this case: Congress has

considered and rejected whistle-blower legislation for

DOE contractor employees; and Plaintiff has alternative

remedies available. Defendants offer an overview of pro-

posed legislation concerning DOE contractor whistle-

blower remedies. (Def.’s Reply Supp. Mot. Dismiss at

appendix.) They argue that Congress’s failure to enact

App. 15

any of these proposals does not constitution “Congres-

sional inadvertence,” but rather indicates that the legisla-

tion has not yet been presented in a form suitable for

enactment.

These same arguments were addressed in a recent

case in this district, Bricker v. Rockwell Hanford Operations,

et al., No. CY-90-3090-AAM (E.D. Wash. Sept. 17, 1991).

The Plaintiff in Bricker was an employee of Rockwell

Hanford Company, who becoming concerned about

safety operations at the Hanford nuclear facility, voiced

his concerns to co-employees, to members of the United

States Congress, and to the news media. Bricker v. Rock-

well Hanford Operations, et al., Slip op. at 2-3. The Plaintiff

alleged that his whistle-blowing resulted in conspiracy by

the defendants to deprive him of his constitutional rights

and to discredit and harass him. Id. at 3. Bricker sought

damages for alleged violations of his First Amendment

rights to free speech and association, his Fourth Amend-

ment right be tree from unreasonable searches, and his

Fifth Amendment rights to due process and privacy. Id. at

4.

Judge McDonald reviewed the numerous attempts by

Congress to pass legislation creating remedies for whis-

tle-blowing employees of government-owned contract-

operated (GOCO) facilities, such as Hanford. Id. at 13.

The judge rejected Plaintiff's argument that a failure to

enact legislation constitutes “Congressional inadver-

tence.” Id. In concluding that creation of a Bivens remedy

would be inappropriate in Bricker, the court noted:

Congressional inaction that is inadvertent?

Hardly. The congressional record is clear that

Congress is and has been aware of the situation

-_-s or jw C+ -

App. 16

regarding “whistle-blowers” at GOCO facilities,

but has failed to enact a comprehensive statu-

tory remedial scheme. It is difficult to imagine a

stronger case of what this court shall term

“deliberate inaction.”

Id.

Mr. Lekvold’s case is factually similar to the Bricker

case. Like Mr. Bricker, Mr. Lekvold works in a Depart

ment of Energy, government-owned contract-operated

nuclear facility in Hanford, Washington. Although Mr

sricker may have had some additional administrative

remedies available to him because of the nature of his

claims, the legislative history for DOE GOCO whistle-

blowers is equally applicable to Mr. Lekvold as to Mr

Bricker. Also applicable to Mr. Lekvoid’s case is the

Bricker Court’s analysis of failed Congressional attempts

to enact legislation to create remedies for whistle-blowers

at DOE GOCO facilities. !

This Court rejects the contention that Congress’s

repeated consideration of remedies for whistle-blowers at

GOCO facilities, and refusal to enact those remedies,

equates “congressional inadvertence.” Rather, it is appar-

ent Congress has considered and rejected enacting such

remedies

The Defendants argue that a second “special factor”

exists that counsels against creation of a judicial remedy:

| A detailed analysis of legislation relating to whistle-

blowers at contract-operated Department of Energy nuclear

facilities appears in Bricker v. Rockwell Hanford Operations et al.,

No. CY-90-3090-AAM, slip op. at 10-13 (E.D. Wash. Sept. 17,

1991).

App

~

the Plaintiff had alternative remedies available to him,

which he used, albeit unsuccessfully. One of the avenues

available to Mr. Lekvold was the DOE Richland Opera-

tions office “Employee Concerns Program,” which inves-

tigates the complaints of DOE contractor employees.

(Def.’s Mem. Supp. Mot. at 13.) Another was in the

Inspector General Act of 1978, which prohibits retaliation

against employees who bring complaints to the attention

of the Inspector General. (Id. at 14.) A third remedy was

through DOE Order 5483.1A, which provides safety and

health protection for GOCO employees, similar to those

found in private industry under the Occupational Safety

and Health Act. (Id. at 15.) Mr. Lekvold does not contest

that these remedies exist, but argues that these nonstatu-

tory remedies do not satisfy the alternative available

remedies as discussed in Schweiker v Chilicky.

In Chilicky, the Court noted that it was inappropriate

to judicially create remedies when “Congress has pro-

vided what it considers adequate remedial mechanisms

for constitutional violations.” Schweiker v. Chilicky, 487

U.S. 412, 423 (1988). As noted in Bricker, the “Ninth Cir-

cuit 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.”

Bricker v. Rockwell Hanford, No. CY-90-3090-AAM, slip op.

at 7 (E.D. Wash. Sept. 17, 1991).

The Ninth Circuit has also declined to create a Bivens

remedy because alternative remedies existed that had

been administratively, not statutorily, created. See id. (cit-

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

United States, 928 F.2d 829 (9th Cir. 1991); Karamanos v.

Egger, 882 F.2d 447 (9th Cir. 1989); Kotarski v. Cooper, 866

App. 18

F.2d 311 (9th Cir. 1989)). Because they were not statutory

does not mean Mr. Lekvold’s alternative remedies should

be disregarded.

Congress has not been inadvertent in its failure to

establish statutory remedies for whistle-blower actions in

DOE facilities, but rather has consciously chosen to not

enact legislation at this time. Alternative remedies existed

for Mr. Lekvold. A Bivens remedy is not proper in this

case.

Since the Plaintiff’s federal claims are dismissed, the

Court must decide whether to retain supplemental juris-

diction? over the state law claims. Although the Court

may retain jurisdiction, the better practice is to dismiss

the state claims without prejudice. See Cook, Perliss &

Liehe v. Northern California Collection Service Inc., 911 F.2d

242, 247 (9th Cir. 1990); Schultz v. Sundberg, 759 F.2d 714,

718 (9th Cir. 1985); Jones v. Community Redevelopment

Agency, 733 F.2d 646, 651 (9th Cir. 1984) (citing United

Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).

IT IS HEREBY ORDERED: the Defendants’ Motion

to Dismiss Constitutional Claims for Failure to State a

Claim, Ct. Rec. 13, is GRANTED. The complaint and

claims contained therein as they relate to Plaintiff’s Bivens

claims are DISMISSED WITH PREJUDICE. The Plain-

tiff’s state law claims are DISMISSED WITHOUT PRE}J-

UDICE.

IT IS SO ORDERED. The Clerk is hereby directed to

enter this Order and furnish copies to counsel. The Clerk

2 28 U.S.C. § 1367(c)(3).

App. 19

is also directed to close this case. All motions heretofore

not ruled upon are DENIED as MOOT.

DATED this 21st day of February 1992.

is / Fred Van Sickle

FRED VAN SICKLE

United States District Judge