Opposition Brief — Lekvold v. Westinghouse Hanford Co.

No. 94-310

OFFIOE

In The ine

Supreme Court of the United States

October Term, 1994

& —

GARY L. LEKVOLD,

Petitioner,

WESTINGHOUSE HANFORD COMPANY,

a Delaware corporation;

WESTINGHOUSE ELECTRIC CORPORATION,

a Pennsylvania corporation,

Respondents.

——— 6

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF IN OPPOSITION

.

Stuart R. DuUNwoopy*

WILLIAM R. Soguires III

Davis WRIGHT TREMAINE

2600 Century Square

1501 Fourth Avenue

Seattle, WA 98101-1688

(206) 622-3150

*Counsel of Record

Attorneys for Respondents

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

ee

BEST AVAILABLE COPY

QUESTION PRESENTED FOR REVIEW

Whether “special factors” exist and bar a former

employee of a government contractor at a Department of

Energy facility from maintaining a Bivens action against

his former employer where Congress’ enactment of some

remedies and its repeated consideration and rejection of

proposed legislation to create additional remedies shows

that its failure to create the precise remedy that the

employee seeks has not been inadvertent.

il

RULE 29.1 LISTING

Westinghouse Electric Corporation is the parent com-

pany of Westinghouse Hanford Company. Westinghouse

Hanford Company has no other parent companies and no

subsidiaries.

Westinghouse Electric Corporation has the following

subsidiaries (other than wholly-owned subsidiaries):

Micros System, Inc.

New World Power Corp.

Royal International Optical, Inc.

The Actava Group, Inc.

iil

TABLE OF CONTENTS

Page

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

a ii

ME ED 6 occ ccc cscs erescccccescess iii

pe sg iv

So Ale is | 8 oe: Sa 1

REASONS FOR DENYING THE WRIT............. 4

I. The Issue Petitioner Presents Is Not Suffi-

ciently Important to Justify Review by This

Nee eee eeeaces 4

II. The Decision of the Court of Appeals Is Correct

and Is Consistent With Other Authority........ 5

EOE nee ee 8

iv

TABLE OF AUTHORITIES

Page

CASES

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

412 GS GE Se Ces eo a Peak hase ceaeces sss 6

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971)...... 23,43

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

CRUE kk 6a koko ce ee oa a ec a ees 1 Gos 7

Bricker v. Rockwell International Corp., 22 F.3d 871

(9th Cir. 1993), petition for cert. filed, No. 94-120

LID. ube PGi Be aces eck nt ae case seccenssns 3, 5, 6

Beem wv. Leia, S62 TES. SBF Cie he os cooks ck ver cwss 4,5

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

EE ee a Gh so bk Oa koe es Ve Rah eat ake 7

Schweiker v. Chilicky, 487 U.S. 412 (1988) ........... 4,5

STATUTES AND REGULATIONS

Defense Authorization Act for Fiscal Year 1991, 10

Bi: a 8 ol aka occa eee eee d Teen Ge ks 7

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

S 2902(a), 106 Stat. 2776, SiZS (U99Z). «wwe. ccc esee 4

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

GE ._, TARP Rr colette Ce ae mee een ae entietsPnOe a extra oe 4, 6

Sr ne Oe os ks is nee hoe ne 2

MISCELLANEOUS

i Mey Me ae a rere re rere 7

Fi. Dae, SAO Come, Te is a ok os a vcisinesdacenens 7

TABLE OF AUTHORITIES —- Continued

Lexis Bill Tracking Reports 1989 H.R. 2579 and

FOO BE CE Neca cbekecrcenens:

S. 436, 101st Cong., Ist Sess. (1989)

Me We ME Nobu s kes vacteaebeucas

—— i ae ee er

No. 94-310

®

In The

Supreme Court of the United States

October Term, 1994

e

GARY L. LEKVOLD,

Petitioner,

WESTINGHOUSE HANFORD COMPANY,

a Delaware corporation;

WESTINGHOUSE ELECTRIC CORPORATION,

a Pennsylvania corporation,

Respondents.

>

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF IN OPPOSITION

¢

STATEMENT OF THE CASE

The petitioner was employed by respondent Westing-

house Hanford Company (“WHC”) at the Hanford

Nuclear Reservation in Southeastern Washington, an

installation owned by the United States and managed by

the United States Department of Energy. WHC manages

portions of the site under contract with DOE.

Petitioner alleges in his complaint that he had dis-

agreements with his supervisors regarding the physical

security of nuclear materials stored at the Hanford Reser-

vation, and concluded that WHC management did not

intend to take the necessary measures to protect the

public from theft of nuclear materials. In February 1989,

petitioner wrote to Michael Lawrence, the senior DOE

official at the Hanford Reservation, expressing his con-

cerns. DOE promptly assigned an independent investiga-

tor to look into petitioner’s allegations, who found no

basis to support them.

Petitioner alleges that WHC retaliated against him

for expressing his concerns. WHC suspended petitioner

in March 1989 for violations of attendance and time card

rules, but, as he admits, “his employment status contin-

ued,” Pet. at 5, and WHC continued to pay him his

salary.!

Petitioner filed suit in the United States District

Court for the Eastern District of Washington, asserting

claims against WHC under the First and Fifth Amend-

ments to the United States Constitution and seeking

thirty-three million dollars in damages. Petitioner

founded his claims on Bivens v. Six Unknown Named

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

which permits, under certain circumstances, damages

1 After this action was filed, DOE independently revoked

petitioner’s security clearance, Pet. at 6, on the authority set

forth in 10 C.F.R. Part 710 because he gave false answers to

questions concerning his use of marijuana. Because petitioner’s

position required a security clearance, WHC then terminated

his employment.

suits against federal officials who violate federal constitu-

tional rights under color of federal law.? Petitioner claims

that WHC is subject to suit under Bivens because it is a

“federal actor.” Although WHC denies that it is a federal

actor, it did not seek summary judgment on the issue and

the courts below did not rule on it or on any other

allegation contained in the complaint.

The district court dismissed petitioner’s constitu-

tional claims with prejudice on the ground that the “spe-

cial factors counseling hesitation” recognized by this

Court in Bivens exist and preclude petitioner from main-

taining a Bivens action, and dismissed his state law claims

against Westinghouse Electric Corporation without preju-

dice. The court of appeals affirmed, relying on its recent

decision in Bricker v. Rockwell International Corp., 22 F.3d

871 (9th Cir. 1993), petition for cert. filed, No. 94-120 (U.S.

July 14, 1994).

2 Petitioner’s complaint also asserted state law tort claims

(but not the federal constitutional claims) against WHC’s parent

corporation, Westinghouse Electric Corporation. After filing his

federal court action, petitioner filed state law claims against

WHC in the Superior Court of Franklin County, Washington;

those claims are still pending.

3 The allegations of wrongdoing set forth in the Petition,

which respondents vigorously deny, thus remain unproved.

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.

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 Petitioner Presents Is Not Sufficiently

Important to Justify Review by This Court.

A recent statutory amendment ensures that the ques-

tion that petitioner presents 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 petitioner presents is whether the

“special factors” recognized by this Court in Bivens and

its progeny preclude a plaintiff such as petitioner, who

claims that he has suffered retaliation for voicing safety

or health concerns relating to a DOE installation, from

maintaining 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, provid-

ing remedies for employees of DOE contractors who have

claims for such retaliation arising on or after October 24,

1992,4 constitutes, under this Court’s decisions in Bush v.

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

4 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.

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 petitioner presents, 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.5 The issue thus is of historical interest only

and will not recur in future cases. It is not 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.

Under this Court’s decisions in Bush and Chilicky,

special factors bar a Bivens suit even where no alternative

remedy exists for the harm that the plaintiff alleges, 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

> 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, Bricker v. Rockwell International Corp., 22 F.3d 871

(9th Cir. 1993), petition for cert. filed, No. 94-120 (U.S. July 14,

1994).

Congress’ failure to create a remedy for persons in peti-

tioner’s position — an employee of a DOE contractor who

voices safety concerns at a DOE installation - was any-

thing 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 Fourth Circuit recognized in Adams

v. Dole, 927 F.2d 771, 776 (4th Cir.), cert. denied, 112 S. Ct.

122 (1991), Congress deliberately excluded employees of

DOE contractors from the protections of Section 210 when

it first enacted the statute. Its failure to provide those

protections to persons such as petitioner thus was not

inadvertent.

Congress’ lack of inadvertence in providing the rem-

edy petitioner seeks 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. 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

6 Some (but not all) of these bills are cited in the Ninth

Circuit’s opinion in Bricker v. Rockwell, 22 F.3d at 875 n.4, which

was the basis for the opinion of the court of appeals in this case.

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.®

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. 5 — App. 6.

————_———_—_- @ —

” For example, a bill to create whistleblower protections for

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

101st Cong., 1st 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.

8 The courts below did not consider the failed legislation to

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

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

(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 U.S. 574,

600-601 (1983).

8

CONCLUSION

The petition for writ of certiorari should be denied.

September 16, 1994

Respectfully submitted,

STuART R. DuNwoopy*

WILLIAM R. Squires III

Davis WRIGHT TREMAINE

2600 Century Square

1501 Fourth Avenue

Seattle, WA 98101-1688

(206) 622-3150

*Counsel of Record

Attorneys for Respondents

Of Counsel:

Rosert A. DuTTON

Assistant General Counsel

Westinghouse Hanford Co.